Supreme Court of California Justia
Citation 50 Cal. 4th 512, 235 P.3d 988, 113 Cal. Rptr. 3d 327

Reid v. Google, Inc.

Filed 8/5/10



IN THE SUPREME COURT OF CALIFORNIA



BRIAN REID,

Plaintiff and Appellant,

S158965

v.

Ct.App. 6 H029602

GOOGLE, INC.,

Santa Clara County

Defendant and Respondent.

Super. Ct. No. CV023646



Plaintiff Brian Reid filed an age discrimination lawsuit against his former

employer, Google, Inc. The trial court granted Google‘s summary judgment

motion relating to plaintiff‘s claims. The Court of Appeal reversed.

In this case, we decide two issues. First, does a trial court‘s failure to rule

on a party‘s evidentiary objections relating to a summary judgment motion waive

the objections on appeal? Second, should California courts follow the federal

courts in adopting the ―stray remarks doctrine‖ in employment discrimination

cases? Under this doctrine, statements that non-decision-makers make or that

decision makers make outside of the decisional process are deemed ―stray,‖ and

they are irrelevant and insufficient to avoid summary judgment.

In this case, the Court of Appeal found that the trial court‘s failure to rule

expressly on evidentiary objections did not waive those objections on appeal.

Specifically, it ruled that Google‘s filing of written evidentiary objections before

the summary judgment hearing was sufficient to preserve those objections on

1


appeal. Accordingly, it reviewed Google‘s evidentiary objections on the merits.

The Court of Appeal further refused to apply the stray remarks doctrine to exclude

alleged discriminatory statements that Reid‘s supervisors and coworkers made. In

reversing the trial court‘s grant of Google‘s summary judgment motion, the Court

of Appeal considered those alleged statements and other evidence Reid presented

in opposition to the motion.

We agree with the Court of Appeal‘s conclusions. Regarding the waiver

issue, the Court of Appeal correctly determined that a finding of waiver does not

depend on whether a trial court rules expressly on evidentiary objections and that

Google‘s filing of written evidentiary objections before the summary judgment

hearing preserved them on appeal. (Code Civ. Proc., § 437c, subds. (b)(5), (d).)1

After a party objects to evidence, the trial court must then rule on those objections.

If the trial court fails to rule after a party has properly objected, the evidentiary

objections are not deemed waived on appeal. Regarding the stray remarks issue,

the Court of Appeal also correctly determined that application of the stray remarks

doctrine is unnecessary and its categorical exclusion of evidence might lead to

unfair results.

I. FACTUAL AND PROCEDURAL HISTORY

Reid worked at Google between June 2002 and February 2004. Google‘s

vice-president of engineering, Wayne Rosing (then age 55) hired Reid (then age

52) as director of operations and director of engineering. Reid has a Ph.D. in

computer science and is a former associate professor of electrical engineering at

Stanford University.


1

Unless otherwise indicated, all statutory references are to the Code of Civil

Procedure.

2

In addition to Rosing, Reid also interacted with other high-level employees,

including chief executive officer (CEO) Eric Schmidt (then age 47), vice-president

of engineering operations Urs Hölzle (then age 38), and founders Sergey Brin

(then age 28), and Larry Page (then age 29). Reid reported to Rosing and at times

to Hölzle.

In a review of Reid‘s first year‘s job performance (his only written

performance review while employed at Google), Rosing described Reid as having

―an extraordinarily broad range of knowledge concerning Operations, Engineering

in general and an aptitude and orientation towards operational and IT issues.‖

Rosing noted that Reid ―project[ed] confidence when dealing with fast changing

situations,‖ ―ha[d] an excellent attitude about what ‗OPS‘ and ‗Support‘ mean,‖

and was ―very intelligent,‖ ―creative,‖ ―a terrific problem solver,‖ and that the

―vast majority of Ops [ran] great.‖ Rosing gave Reid a performance rating

indicating he ―consistently [met] expectations.‖

In Reid‘s performance review, Rosing commented: ―Adapting to Google

culture is the primary task for the first year here . . . . [¶] . . . [¶] Right or wrong,

Google is simply different: Younger contributors, inexperienced first line

managers, and the super fast pace are just a few examples of the environment.‖

Reid received bonuses from February 2003 to February 2004, including stock

options for 12,750 shares.

Reid alleged that Hölzle and other employees made derogatory age-related

remarks to Reid while he was employed at Google. According to Reid, Hölzle

told Reid that his opinions and ideas were ―obsolete‖ and ―too old to matter,‖ that

he was ―slow,‖ ―fuzzy,‖ ―sluggish,‖ and ―lethargic,‖ and that he did not ―display a

sense of urgency‖ and ―lack[ed] energy.‖ Hölzle allegedly made age-related

comments to Reid ―every few weeks.‖ Other coworkers called Reid an ―old man,‖

an ―old guy,‖ and an ―old fuddy-duddy,‖ told him his knowledge was ancient, and

3

joked that Reid‘s CD (compact disc) jewel case office placard should be an ―LP‖

instead of a ―CD.‖

In September 2003, cofounder Brin sent an e-mail to several executives

commenting about Google‘s payroll: ―We should avoid the tendency towards

bloat here particularly with highly paid individuals.‖ Rosing responded,

―Excellent memo and very timely . . . . Let me disclose what I am up to

organizationally . . . . We are looking for a senior Director (note I did not

capitalize Sr.) or VP level person to run this operation. . . .‖

In October 2003, Rosing removed Reid from the director of operations

position, and relieved him of his responsibilities as director of engineering, though

he was allowed to retain the title. Hölzle, 15 years younger than Reid, assumed

Reid‘s position as director of operations, and Douglas Merrill, 20 years younger

than Reid, took over his other duties. Google asked Reid to develop and

implement an in-house graduate degree program (―Graduate Degree Program‖)

and an undergraduate college recruitment program (―Google Scholar Program‖).

The Graduate Degree Program was aimed at retaining engineers by allowing them

to attend courses that Carnegie Mellon University professors taught at Google and

to obtain master‘s degrees in engineering. According to Reid, Google‘s CEO,

Schmidt, assured Reid that the graduate program was important and would last at

least five years. But Reid was given no budget or staff to support it.

In January 2004, Brin, Page, Rosing, and Hölzle collectively decided not to

pay Reid a bonus for 2003. CEO Schmidt sent an e-mail to Rosing asking for ―a

proposal from [him] . . . on getting [Reid] out . . . .‖ On February 7, 2004, Rosing

responded to Schmidt, expressing concern about the decision not to pay Reid a

bonus. He stated that he was ―having second thoughts about the full zero out of

the $14K bonus [versus] treating it consistent with all similarly situated

4

performers.‖ Rosing suggested that Reid should receive a bonus of $11,300, in

addition to a severance package, to avoid ―a judge concluding we acted harshly.‖

On February 13, 2004, Rosing told Reid the engineering department no

longer had a place for him. Google asserts Rosing told Reid that the Graduate

Degree Program was being eliminated and that it terminated Reid because of job

elimination and poor performance. On the other hand, Reid maintains he was

given no reason for his termination other than lack of ―cultural fit,‖ and he was

told the graduate program would continue and his termination was not

performance based.

After Reid asked if he could look for a job elsewhere in the company,

Rosing encouraged him to apply for positions with other departments. However,

e-mails circulating among various department heads indicated that no other

department intended to hire Reid. Vice-president of business operations Shona

Brown wrote to Rosing and human resources director Stacy Sullivan, asserting,

―you should make sure I am appropriately prepped. My line at the moment is that

there is no role for him in the HR organization.‖ Sullivan responded: ―Seems

[Reid‘s] first interest is to continue his work on the college programs he‘s been

working on . . . . He‘ll explore that option first with both of you . . . . I propose

[Brown] . . . meets with [Reid] [on February 24] and lets him know there‘s no role

[for him] in her org . . . . I‘ve talked with [chief financial officer George] Reyes

live, he will not have an option for [Reid] . . . . [T]his is The Company Decision.‖

Sullivan concluded: ―We‘ll all agree on the job elimination angle . . . .‖

On February 24, 2004, Reid met with chief financial officer Reyes, who

told him no positions were open in Reyes‘s department. Reid then met with

Brown, who stated no positions were available for him in her department.

According to Reid, Brown commented that he was not a ―cultural fit‖ at Google.

On February 27, Reid left Google with a two-month severance package.

5

On July 20, 2004, Reid sued Google. The complaint alleged 12 causes of

action, including claims for age discrimination under the California Fair

Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and

California‘s unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.);

wrongful termination in violation of public policy; failure to prevent

discrimination; and both negligent and intentional infliction of emotional distress.

Reid sought injunctive relief, disgorgement of profits, restitution of lost stock

options, and attorney fees and costs.

Google demurred and brought motions to strike as to various causes of

action, which were granted in part. Google then filed a motion for summary

judgment as to Reid‘s remaining causes of action (those specified above), based

on claims of age discrimination by Google. Although Google filed written

objections to evidence Reid submitted, the trial court did not rule specifically on

those objections. Instead, it stated it was relying only ―on competent and

admissible evidence.‖

The trial court granted the summary judgment motion. It found that

Google‘s evidence, while ―not sufficient to prove that Plaintiff cannot establish a

prima facie case of age discrimination,‖ ―is sufficient to prove that [Google] had

legitimate nondiscriminatory reasons for . . . terminating [plaintiff‘s] employment

in February 2004.‖2 The court further found that Reid‘s evidence was ―not


2

In California, courts employ at trial the three-stage test that was established

in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, to resolve
discrimination claims, including age discrimination. (Guz v. Bechtel National,
Inc.
(2000) 24 Cal.4th 317, 354 (Guz).) At trial, the employee must first establish
a prima facie case of discrimination, showing ― ‗ ―actions taken by the employer
from which one can infer, if such actions remain unexplained, that it is more likely
than not that such actions were ‗based on a [prohibited] discriminatory
criterion . . . .‘ ‖ ‘ ‖ (Id. at p. 355.) Once the employee satisfies this burden, there


(footnote continued on next page)

6

sufficient to raise a permissible inference that in fact, [Google] considered

Plaintiff‘s age as a motivating factor in . . . terminating his employment.‖ The

trial court noted that, because Reid had failed to raise a triable issue of material

fact as to whether Google‘s reasons were pretextual, his age discrimination claims

should be dismissed. (§ 437c, subd. (c) [―motion for summary judgment shall be

granted if all the papers submitted show that there is no triable issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law‖].)

As relevant here, the Court of Appeal, in a published opinion, reversed the

trial court‘s granting of Google‘s summary judgment motion relating to Reid‘s

causes of action for age discrimination under FEHA and the UCL, wrongful

termination, failure to prevent discrimination, and both negligent and intentional

infliction of emotional distress. The Court of Appeal found that undisputed

evidence supported both a prima facie case of age discrimination and a legitimate,

nondiscriminatory reason for Reid‘s termination, i.e., the elimination of the

Graduate Degree Program.



(footnote continued from previous page)

is a presumption of discrimination, and the burden then shifts to the employer to
show that its action was motivated by legitimate, nondiscriminatory reasons. (Id.
at pp. 355-356.) A reason is ― ‗legitimate‘ ‖ if it is ―facially unrelated to
prohibited bias,
and which if true, would thus preclude a finding of
discrimination.
‖ (Id. at p. 358.) If the employer meets this burden, the employee
then must show that the employer‘s reasons are pretexts for discrimination, or
produce other evidence of intentional discrimination. (Id. at p. 356.)


Here, at the summary judgment stage, the trial court did not impose an

initial prima facie burden on Reid, but proceeded directly to the second step of the
McDonnell Douglas formula and determined that Google had made an initial no-
merit showing. (See Guz, supra, 24 Cal.4th at pp. 356-357.)

7

However, on the issue of whether the stated reason for termination was

pretextual, the Court of Appeal held that evidence Reid had presented raised a

triable issue of material fact. Reid offered statistical evidence of discrimination at

Google, discriminatory comments that coworkers and decision makers made, and

evidence that Google demoted Reid to a nonviable position before terminating him

and advanced changing rationales for his termination. Although Google filed

written objections to Reid‘s evidence and raised its objections at the hearing, the

trial court did not expressly rule on them. The Court of Appeal held that the trial

court‘s failure to rule on the objections did not waive them on appeal. The Court

of Appeal considered and rejected Google‘s challenges to the methodology Reid‘s

statistical expert used and Google‘s argument that alleged ageist comments by

Google decision makers and Reid‘s coworkers were stray remarks and therefore

insufficient proof of pretext. The court explained that judgments regarding such

discriminatory comments ―must be made on a case-by-case basis in light of the

entire record.‖ The court concluded that, because Reid‘s evidence and inferences

of discrimination raised a triable issue of fact as to the existence of pretext, the

trial court erred in granting the summary judgment motion.

We granted Google‘s petition for review to determine: (1) whether

evidentiary objections on which the trial court has not expressly ruled when it

decided a summary judgment motion are preserved on appeal, and (2) whether

California law should adopt the stray remarks doctrine.

II. DISCUSSION

A. Evidentiary Objections Not Ruled on at Summary Judgment

We first address the issue whether evidentiary objections are preserved on

appeal when the trial court does not expressly rule on them when it decides a

8

summary judgment motion. Section 437c, governing summary judgment motions,

contains two waiver provisions relating to evidentiary objections.

Section 437c, subdivision (b)(5) states that: ―Evidentiary objections not

made at the hearing shall be deemed waived.‖3

Section 437c, subdivision (d) states that: ―Supporting and opposing

affidavits or declarations shall be made by any person on personal knowledge,

shall set forth admissible evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated in the affidavits or declarations. Any

objections based on the failure to comply with the requirements of this subdivision

shall be made at the hearing or shall be deemed waived.‖

In this case, Google submitted 31 pages of written objections to Reid‘s

evidence. For the most part, Google raised its objections at the hearing by

incorporating those written objections. In the trial court‘s written order granting

summary judgment, it did not rule specifically on Google‘s evidentiary objections,

but stated it was relying only on ―competent and admissible evidence pursuant to

Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419-

1429.‖

1. Background: Biljac and the Waiver Rule

In Biljac, plaintiffs filed voluminous evidentiary objections and asked the

trial court to make written rulings on all of them. (Biljac Associates v. First

Interstate Bank (1990) 218 Cal.App.3d 1410, 1419 (Biljac).) The trial court


3

Waiver is the ― ‗ ―intentional relinquishment or abandonment of a known

right,‖ ‘ ‖ whereas forfeiture is the ― ‗failure to make the timely assertion of a
right.‘ ‖ (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6, citing United States
v. Olano
(1993) 507 U.S. 725, 733.) Although it is more accurate to denominate
the failure to object at the summary judgment hearing a forfeiture, we will use the
statutory term ―waiver.‖

9

declined to render formal rulings, finding that it would be ― ‗a horrendous,

incredibly time-consuming task‘ ‖ to rule individually on each piece of evidence

and that such rulings ―would serve very little useful purpose.‖ (Id. at p. 1419, fn.

3.) Plaintiffs argued failure to rule was reversible error, but the Court of Appeal

disagreed. It held that express evidentiary rulings were unnecessary because

appellate review of a summary judgment determination was de novo, and ―the

parties remain[ed] free to press their admissibility arguments on appeal, the same

as they did in the trial court.‖ (Id. at p. 1419.) Thus, under Biljac, a trial court

may decline to rule on specific evidentiary objections so long as it states it relied

only on ―competent and admissible evidence‖ in ruling on the summary judgment

motion. (Id. at p. 1424.)

A few years later, we applied waiver principles to evidentiary objections at

the summary judgment stage without mentioning Biljac. In Ann M. v. Pacific

Plaza Shopping Center (1993) 6 Cal.4th 666 (Ann M.), plaintiff filed a civil

complaint against the owners of a shopping center after she was raped at her place

of employment, located in the shopping center. We noted that ―[i]n the trial court,

defendants made a series of objections to evidence submitted by [plaintiff] in

opposition to the summary judgment motion,‖ but ―[t]he trial court did not rule on

the objections.‖ (Id. at p. 670, fn. 1.) We held that ―[b]ecause counsel failed to

obtain rulings, the objections are waived and are not preserved for appeal. (Code

Civ. Proc., § 437c, subds. (b) & (c); Golden West Baseball Co. v. Talley (1991)

232 Cal.App.3d 1294, 1301, fn. 4 [284 Cal.Rptr. 53]; Ramsey v. City of Lake

Elsinore (1990) 220 Cal.App.3d 1530, 1540 [270 Cal.Rptr. 198]; Haskell v. Carli

(1987) 195 Cal.App.3d 124, 129-132 [240 Cal.Rptr. 439].) Although many of the

objections appear meritorious, for purposes of this appeal we must view the

objectionable evidence as having been admitted in evidence and therefore as part

of the record.‖ (Ibid.)

10

Again without mentioning Biljac, we affirmed the Ann M. waiver principles

in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, footnote 1

(Sharon P.), disapproved on other grounds in Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 853, footnote 19. In Sharon P., plaintiff sued the owner of

the parking garage of her work building after she was attacked and sexually

assaulted there. In finding waiver, we stated: ―[Defendant] filed objections to the

declarations of plaintiff and her counsel in the trial court, but the record contains

no rulings on those objections. We therefore deem the objections waived and

view plaintiff‘s evidence as having been admitted in evidence as part of the record

for purposes of the appeal. (Ann M., supra, 6 Cal.4th at p. 670, fn. 1; Code Civ.

Proc., § 437c, subds. (b), (c).)‖ (Sharon P., supra, 21 Cal.4th at pp. 1186-1187,

fn. 1.)

Following Ann M. and Sharon P., the same court that decided Biljac

disapproved the Biljac procedure. (Demps v. San Francisco Housing Authority

(2007) 149 Cal.App.4th 564, 566 (Demps).) In Demps, the trial court granted

summary judgment in favor of defendant employer against plaintiff‘s allegations

of discrimination. At the summary judgment hearing, defense counsel expressly

requested that the court rule on evidentiary objections previously filed by

defendant. In response, the court stated it was ― ‗following Biljac and [was] only

considering the relevant and pertinent evidence.‘ ‖ (Id. at p. 574.) The Court of

Appeal affirmed summary judgment, but rejected its previous holding in Biljac,

explaining that ―[w]e read Ann M., supra, 6 Cal.4th 666, and Sharon P., supra, 21

Cal.4th 1181, as having impliedly overruled Biljac and establishing that trial

courts must rule on evidentiary objections in the summary judgment context or the

objections will be deemed waived. (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)‖ (Demps, supra,

149 Cal.App.4th at p. 578.) The Court of Appeal noted that the Biljac procedure

11

does not fulfill a trial court‘s obligation to rule on evidentiary objections in the

summary judgment setting. It held that ―a trial court presented with timely

evidentiary objections in proper form must expressly rule on the individual

objections, and if it does not, the objections are deemed waived and the objected-

to evidence included in the record.‖ (Ibid.)

Other Courts of Appeal have either expressly or impliedly criticized the

Biljac approach, finding it contravenes a trial court‘s duty to rule on evidentiary

objections. (Cheviot Vista Homeowners Assn. v. State Farm Fire & Casualty Co.

(2006) 143 Cal.App.4th 1486, 1500, fn. 9 [Biljac procedure ―is not an acceptable

alternative to a ruling on the objections‖]; Swat-Fame, Inc. v. Goldstein (2002)

101 Cal.App.4th 613, 623 [Biljac was an ―unacceptable circumvention of the

court‘s obligation to rule on the evidentiary objections presented‖], disapproved

on other grounds in Zamos v. Stroud (2004) 32 Cal.4th 958, 973; Sambrano v. City

of San Diego (2001) 94 Cal.App.4th 225, 235 [Biljac ―fosters the [legal] fiction

that a trial court‘s failure to rule on evidentiary objections means the trial court has

considered only admissible evidence‖]; cf. Tilley v. CZ Master Assn. (2005) 131

Cal.App.4th 464, 479 [―given the nature and volume of the objections, the trial

court did not abuse its discretion‖ in issuing a Biljac ruling].)

Courts of Appeal have taken different approaches in resolving Biljac issues

in the face of our waiver rule. Some courts have found waiver. (See, e.g.,

Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140-141;

Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at pp. 623-624; Laird v.

Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736.) Other courts have

addressed the objections on the merits despite the lack of a trial court ruling. (See,

e.g., Tilley v. CZ Master Assn., supra, 131 Cal.App.4th at p. 479; Sambrano v.

City of San Diego, supra, 94 Cal.App.4th at p. 238; Benavidez v. San Jose Police

Dept. (1999) 71 Cal.App.4th 853, 864.)

12

In City of Long Beach v. Farmers & Merchants Bank (2000) 81

Cal.App.4th 780, 783-785, the Court of Appeal applied what trial attorneys

jocularly refer to as a ―stamp-and-scream‖ rule and held that written evidentiary

objections not ruled on by the trial court were preserved for appellate review

where counsel twice orally requested a ruling on those written objections at the

summary judgment hearing, thus presenting an exception to the Ann M. and

Sharon P. waiver rule. (See also Swat-Fame, Inc. v. Goldstein, supra, 101

Cal.App.4th at p. 624, fn. 7 [allowing exception to waiver rule ―when counsel

specifically requests a ruling on evidentiary objections and the trial court

nonetheless declines to rule‖].) In Vineyard Springs Estates v. Superior Court

(2004) 120 Cal.App.4th 633, the Court of Appeal issued a writ of mandate

commanding the trial court to (1) vacate its order denying summary judgment, (2)

rule on all evidentiary objections, and (3) reconsider the summary judgment

motion in light of its rulings on the evidentiary objections. (Id. at p. 643.)

2. The Court of Appeal’s Ruling on the Trial Court’s Invocation of the

Biljac Procedure in This Case.

The Court of Appeal commented that ―we believe the Biljac decision was

substantially correct, and was surely more nearly correct than its critics have

been.‖ The court reasoned that section 437c does not require courts to rule

expressly on evidentiary objections; it only requires express objections to be made.

Also, without mentioning Ann M. and Sharon P., the Court of Appeal

rejected the waiver rule. It held that even if section 437c could be read to require

express rulings, ―it does not mandate that, in the absence of express rulings the

underlying objections are forfeited on appeal.‖ Criticizing the waiver rule, the

Court of Appeal commented, ―The fact is that when a party properly brings an

objection to the trial court‘s attention — i.e., when he files it in proper form — he

has done everything he can or should be required to do to bring about a ruling.

13

The fact that a trial court does not expressly rule on such objection should not be

interpreted as a waiver of the party‘s objection.‖

Instead, the Court of Appeal concluded that, in the absence of express trial

court rulings, the parties may still raise evidentiary issues on appeal. It explained

that if the trial court fails to rule expressly on evidentiary objections relating to a

summary judgment motion, the court‘s silence ―effects an implied overruling of all

objections, which are therefore preserved for appeal. The entire record is thus

presumptively before the appellate court, and the burden is on the objecting party

to show that evidence presumptively considered by the trial court should instead

be disregarded in determining the propriety of the order on the merits.‖

The Court of Appeal held that Google‘s written objections to Reid‘s

evidence were not waived. The court proceeded to decide the merits of the

evidentiary objections Google raised on appeal, i.e., whether Reid‘s statistical and

stray remarks evidence was admissible.

3. To Preserve Evidentiary Issues on Appeal, Litigants Must Object to

Specific Evidence in Writing Before the Summary Judgment
Hearing or Orally at the Hearing, as Specified in the California
Rules of Court


Google claims that because the trial court issued a Biljac ruling, the waiver

rule does not apply and its written evidentiary objections were preserved on

appeal, even though the trial court failed to rule on them expressly. Google argues

that Ann M. and Sharon P. are distinguishable because we did not address the

meaning of a Biljac ruling in those cases and focused instead on the trial court‘s

complete failure to rule on objections. Reid contends that whether we deem

Google‘s objections to be waived or preserved on appeal, the Court of Appeal still

correctly determined the merits of Google‘s evidentiary claims on appeal. The

Court of Appeal correctly found that the trial court erred in granting summary

judgment because Reid‘s proffered admissible evidence presented triable issues of

14

material fact. Reid comments that to the extent we seek his ―input‖ on the waiver

issue, he questions the fairness of absolutely barring a litigant from raising an

evidentiary issue on appeal when the preclusion is through no fault of its own. He

argues that the Court of Appeal‘s ―presumed overruled‖ approach is preferable:

―It achieves the goals of maximizing trial court discretion and avoiding

administrative burden, while allowing a safety valve for extreme situations.‖

We agree that the trial court‘s failure to rule expressly on any of Google‘s

evidentiary objections did not waive them on appeal. As noted above,

―[e]videntiary objections not made at the hearing shall be deemed waived.‖

(§ 437c, subd. (b)(5); see id., subd. (d).) Section 437c defines ―waiver‖ in terms

of a party‘s failure to raise evidentiary objections at the hearing; it does not depend

on whether or not the trial court expressly rules on the objections. Nevertheless, in

Sharon P., we found waiver under section 437c because we seemed to have

focused on the trial court‘s failure to rule. (Sharon P., supra, 21 Cal.4th at pp.

1186-1187, fn. 1 [―[defendant] filed objections to the declarations of plaintiff and

her counsel in the trial court, but the record contains no rulings on those

objections‖].) In Ann M. supra, 6 Cal.4th at page 670, footnote 1 (the only case

Sharon P. cites), we relied on several cases in finding waiver, including Golden

West Baseball Co. v. Talley, supra, 232 Cal.App.3d at page 1301, footnote 4.

In Golden West, the court found that, because the trial court failed to rule

on evidentiary objections, those objections were considered to have been waived.

(Golden West Baseball Co. v. Talley, supra, 232 Cal.App.3d at p.1301, fn. 4.)

Instead of relying on section 437c, subdivision (b)(5), the court relied on section

437c, subdivision (c). That subdivision states that the trial court must consider all

evidence unless an objection to it has been raised and sustained. (§ 437c, subd.

15

(c).)4 It follows that the reviewing court must conclude the trial court considered

any evidence to which it did not expressly sustain an objection. However, the

subdivision does not mandate that, in the absence of express rulings, the

underlying objections are waived on appeal. Thus, evidentiary objections made

―at the hearing shall [not] be deemed waived‖ (§ 437c, subd. (b)(5)), even if the

trial court fails to rule on them expressly.5

The question remains as to how and when evidentiary objections must be

made to be deemed made ―at the hearing,‖ under section 437c, subdivisions (b)(5)

and (d). Because this determination involves a question of statutory construction,

our review is de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24

Cal.4th 415, 432.) ―Under settled canons of statutory construction, in construing a

statute we ascertain the Legislature‘s intent in order to effectuate the law‘s

purpose. [Citation.] We must look to the statute‘s words and give them ‗their

usual and ordinary meaning.‘ [Citation.] ‗The statute‘s plain meaning controls the

court‘s interpretation unless its words are ambiguous.‘ [Citations.] ‗If the

statutory language permits more than one reasonable interpretation, courts may

consider other aids, such as the statute‘s purpose, legislative history, and public

policy.‘ [Citation.]‖ (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th

381, 387-388.)


4

Section 437c, subdivision (c) provides, in pertinent part, that ―[i]n

determining whether the papers show that there is no triable issue as to any
material fact the court shall consider all of the evidence set forth in the papers,
except that to which objections have been made and sustained by the court . . . .‖
5

We disapprove Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th

666, 670, footnote 1 and Sharon P. v. Arman, Ltd., supra, 21 Cal.4th 1181, 1186,
footnote 1, to the extent they hold that, when a trial court fails to rule on objections
to summary judgment evidence, the objections are waived and are not preserved
on appeal.

16

One court found that written evidentiary objections filed with the court had

been made ―at the hearing,‖ even though the objecting party had not raised them at

the summary judgment hearing. (Tilley v. CZ Master Assn., supra, 131

Cal.App.4th at p. 479 [―section 437c, subdivision (b)(5) requires the objections to

be made ‗at the hearing‘ but not orally‖]; see also Sambrano v. City of San Diego,

supra, 94 Cal.App.4th at pp. 232, 234, 237-238 [merits of objection addressed

where preserved in written submissions].) However, other courts have determined

that written objections to summary judgment evidence were insufficient to

preserve them on appeal because the objecting party failed to request a ruling on

the evidentiary objections ―at the hearing.‖ (Charisma R. v. Kristina S. (2009) 175

Cal.App.4th 361, 369; Jones v. P.S. Development Company, Inc. (2008) 166

Cal.App.4th 707, 711, fn. 4; Gallant v. City of Carson (2005) 128 Cal.App.4th

705, 710; Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477, 1484; Swat-

Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at p. 624, fn. 7; Knight v. City of

Capitola (1992) 4 Cal.App.4th 918, 924, fn. 2; Howell v. State Farm Fire & Cas.

Co. (1990) 218 Cal.App.3d 1446, 1459, fn. 9). Yet another court held that

evidentiary objections relating to a summary judgment motion may be raised

either in writing before the hearing or orally at the hearing. (Superior Dispatch,

Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 192-193.)

Because section 437c is ambiguous as to how and when evidentiary

objections must be made to preserve them on appeal, we turn to the statute‘s

purpose and legislative history.

a. Legislative History of Section 437c

Our current summary judgment statute was enacted in 1973. (Stats. 1973,

ch. 366, § 2, p. 807; Haskell v. Carli, supra, 195 Cal.App.3d at p. 130.) The pre-

1973 version of section 437c permitted summary judgment ― ‗in the discretion of

17

the court.‘ ‖ (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505,

1511.) In revising section 437c, the Legislature intended ―to abrogate any real

discretion the trial court had in granting the motion. [Citation.]‖ (Saldana v.

Globe-Weis Systems Co., supra, 233 Cal.App.3d at p. 1512, italics added.)

Before significant amendments were made in 1980, the trial court was to

consider all admissible evidence set forth in the papers supporting or opposing the

motion in ruling on the summary judgment motion. (Stats. 1978, ch. 949, § 2, p.

2930.) Also, waiver rules did not apply in summary judgment proceedings.

(Haskell v. Carli, supra, 195 Cal.App.3d at p. 129.)

1) 1980 Amendment

In 1980, the Legislature passed Senate Bill No. 1200 (1979-1980 Reg. Sess.)

which added the following provisions to section 437c: (1) ―[e]videntiary

objections, not raised here in writing or orally at the hearing, shall be deemed

waived;‖ and (2) ―[i]n determining whether the papers show that there is no triable

issue as to any material fact the court shall consider all of the evidence set forth in

the papers, except that to which objections have been made and sustained by the

court . . . .‖ (Former § 437c, as amended by Stats. 1980, ch. 57, § 1, p. 152.)

The purpose of the bill was ―to facilitate speedy resolution of summary

judgment motions by requiring the parties to make timely evidentiary objections to

summary judgment papers before the [trial] court.‖ (Assem. Com. on Judiciary,

3d reading analysis of Sen. Bill No. 1200 (1979-1980 Reg. Sess.) Mar. 6, 1980.)

It ―would require parties to raise all evidentiary objections at the time of the

hearing on the motion for summary judgment, in writing or orally, or suffer waiver

of such objections.‖ (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1200

(1979-1980 Reg. Sess.) as introduced Apr. 24, 1979, p. 3.)

18

The California Judges Association sponsored the bill: (1) to invalidate

several Court of Appeal decisions that had made it ―possible for parties to raise on

appeal for the first time evidentiary objections to the summary judgment papers‖

and (2) to apply the Evidence Code section 353 waiver rule — prohibiting reversal

for the erroneous admission of evidence unless an objection was timely made —

in the summary judgment context. (Judge Philip M. Saeta, letter to Sen. Com. on

Judiciary re Sen. Bill No. 1200 (1979-1980 Reg. Sess.) Dec. 21, 1979 (Judge

Saeta letter); Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1200 (1979-1980

Reg. Sess.) as introduced Apr. 24, 1979, pp. 2-3.)

Additionally, the bill eliminated the ―requirement that the evidence

considered by the court be admissible, and . . . instead allow[ed] the court to

consider all evidence set forth in the papers, except that to which objections ha[d]

been sustained.‖ (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1200 (1979-

1980 Reg. Sess.) as introduced Apr. 24, 1979, p. 4.) Judge Saeta‘s letter

maintained that the proposed amendments would ―force the opposing parties to go

through the moving papers and make those objections which are deemed to be

applicable and have the trial judge rule on those objections just like the situation at

trial. . . . Then on any appeal the merits of the [summary judgment] ruling can be

addressed without going into minor evidentiary matters not deemed important

enough to be raised at the trial level.‖ (Judge Saeta letter, supra, at p. 2.)

2) 1990 Amendment

Prior to the 1990 amendment, objections ―not made either in writing or

orally at the hearing‖ were deemed waived.6 (Former § 437c, subd. (b) as


6

A 1984 statutory amendment substituted ―made either‖ for ―raised here‖ so

that the statute read: ―Evidentiary objections not made either in writing or orally at


(footnote continued on next page)

19

amended by Stats. 1984, ch. 171, § 1, p. 545, italics added.) As introduced, Senate

Bill No. 2594 (1989-1990 Reg. Sess.) proposed the following change to section

437c, subdivision (b): ―Evidentiary objections not made in writing at least two

court days prior to the hearing shall be deemed waived.‖ (Sen. Bill No. 2594

(1989-1990 Reg. Sess.) as introduced Mar. 1, 1990, p. 2, italics added.) The

Legislature then changed this language to its current form, providing that,

―Evidentiary objections not made at the hearing shall be deemed waived.‖

(§ 437c, subd. (b), italics added, as amended by Stats. 1990, ch. 1561, § 2, p. 7331,

enacting Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended May 7, 1990.)

Thus, the Legislature deleted the proposed language that exempted only

written objections from waiver and deleted the then existing statutory language

―either in writing or orally,‖ so that the statute required evidentiary objections to

be made ―at the hearing‖ to avoid waiver. By removing the words ―in writing‖

and ―orally,‖ we can reasonably infer that the Legislature intended not to restrict

the manner in which objections had to be presented, as had been proposed, leaving

the statute neutral regarding the objections‘ proper form. The 1990 amendment

simply required that objections be presented to the trial court, rather than being

made for the first time on appeal.

Legislative history supports this conclusion. One purpose of the 1990

amendment was to redefine what could be resolved on a motion for summary

adjudication of issues. The Legislature expressly declared that: ―It is also the

intent of this legislation to stop the practice of adjudication of facts or adjudication



(footnote continued from previous page)

the hearing shall be deemed waived.‖ (Former § 437c, subd. (b), as amended by
Stats. 1984, ch. 171, § 1, p. 545.)

20

of issues that do not completely dispose of a cause of action or a defense.‖ (Stats.

1990, ch. 1561, § 1, p. 7330.) A second purpose was to ―overturn[]‖ two Court of

Appeal cases holding that the competency of witnesses could be challenged for the

first time on appeal. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading

analysis of Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended Aug. 22, 1990,

p. 2.) In that regard, the Legislature expressly declared: ―It is the intent of this

legislation to provide that all objections to the form and substance of the moving

and opposing papers shall be first made in the trial court and not on appeal by the

parties or by the appellate court and to expressly overrule the rules stated in

Witchell v. DeKorne [(1986)] 179 Cal.App.3d 965 and Zuckerman v. Pacific

Savings Bank [(1986)] 187 Cal.App.3d 1394.‖ (Stats. 1990, ch. 1561, § 1, pp.

7329-7330.) The overall purpose of the bill was ―to make the summary judgment

procedure more efficient and to reduce the opportunity for abuse of the

procedure.‖ (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 2594 (1989-1990

Reg. Sess.) as amended May 7, 1990, p. 2; Sen. Rules Com., Off. of Sen. Floor

Analyses, 3d reading analysis of Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as

amended Aug. 22, 1990, p. 2; see also Judicial Council of Cal., letter to Governor

Deukmejian re Sen. Bill No. 2594 (1989-1990 Reg. Sess.) Sept. 17, 1990

[supporting the bill‘s requirement that parties raise evidentiary objections in the

trial court because it would save time for appellate courts and simplify civil

proceedings].)

In accord with the Legislature‘s second purpose, it also amended section

437c to add the following sentence to subdivision (d): ―Any objections based on

the failure to comply with the requirements of this subdivision [regarding the

competence of declarants] shall be made at the hearing or shall be deemed

waived.‖ (Stats. 1990, ch. 1561, § 2, p. 7331.) And, as mentioned above, the

Legislature at the same time deleted the phrase ―either in writing or orally‖ from

21

section 437c, subdivision (b), to provide that, ―Evidentiary objections not made at

the hearing shall be deemed waived.‖

The 1990 amendment of section 437c by its terms required that objections

be made in the trial court to avoid waiver, but did not designate how those

objections needed to be presented. Because the statute and legislative history are

silent as to the specific manner in which evidentiary objections must be made, we

presume that the Legislature intended no changes to the established procedure for

making evidentiary objections. Thus, the California Rules of Court govern. (See

Cal. Const., art. VI, § 6, subd. (d); Cantillon v. Superior Court (1957) 150

Cal.App.2d 184, 187; see also Mann v. Cracchiolo (1985) 38 Cal.3d 18, 29 [courts

may adopt ―rules with the force of law‖ with respect to summary judgment

motions].)

At the time of the 1990 amendment of section 437c, California Rules of

Court, former rule 343 (current rule 3.1352) explained how and when summary

judgment objections were made. The Judicial Council first adopted former rule

343 in 1984. The Rules of Court were renumbered effective January 1, 2007.

Substantively the same as when first adopted in 1984, current rule 3.1352 states:

―A party desiring to make objections to evidence in the papers on a motion for

summary judgment must either: [¶] (1) Submit objections in writing under rule

3.1354; or [¶] (2) Make arrangements for a court reporter to be present at the

hearing.‖ As with former rule 343 and current rule 3.1352, both former rule 345

and current rule 3.1354 require written objections to be served and filed before the

hearing. (See now Cal. Rules of Court, rule 3.1354(a).) Thus, both before and

after section 437c‘s 1990 amendment, the Rules of Court expressly allowed parties

to choose how to record their objections.

At the summary judgment hearing, the parties have the opportunity to

persuade the trial court and respond to its inquiries. (Mediterranean Construction

22

Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 260.) At that

hearing, the court considers the motion, any opposition to the motion, any reply,

and all supporting papers submitted before the hearing, as well as arguments and

evidentiary objections made at the hearing. (See § 437c, subds. (a), (b)(1)-(4);

Cal. Rules of Court, rules 3.1352, 3.1354(a).) Therefore, written evidentiary

objections made before the hearing, as well as oral objections made at the hearing

are deemed made ―at the hearing‖ under section 437c, subdivisions (b)(5) and (d),

so that either method of objection avoids waiver.7 The trial court must rule

expressly on those objections.8 (See Vineyard Springs Estates v. Superior Court,

supra, 120 Cal.App.4th at pp. 642-643 [trial courts have a duty to rule on

evidentiary objections presented in proper form].) If the trial court fails to rule,

the objections are preserved on appeal.

We recognize that it has become common practice for litigants to flood the

trial courts with inconsequential written evidentiary objections, without focusing

on those that are critical.9 Trial courts are often faced with ―innumerable


7

We disapprove Charisma R. v. Kristina S., supra, 175 Cal.App.4th 361,

369; Jones v. P.S. Development Company, Inc., supra, 166 Cal.App.4th 707, 711,
footnote 4; Gallant v. City of Carson, supra, 128 Cal.App. 4th 705, 710; Ali v. L.A.
Focus Publication, supra
, 112 Cal.App.4th 1477, 1484; Swat-Fame Inc. v.
Goldstein, supra
, 101 Cal.App.4th 613, 624, footnote 7; City of Long Beach v.
Farmers & Merchants Bank, supra
, 81 Cal.App.4th 780, 783-785; Knight v. City
of Capitola, supra
, 4 Cal.App.4th 918, 924, footnote 2; and Howell v. State Farm
Fire & Cas. Co., supra
, 218 Cal.App.3d 1446, 1459, footnote 9, to the extent they
hold that litigants must raise written objections orally at the hearing to preserve
them on appeal.
8

We disapprove Biljac Associates v. First Interstate Bank, supra, 218

Cal.App.3d 1410, 1419, 1424, to the extent it permits the trial court to avoid ruling
on specific evidentiary objections.
9

Amicus curiae California Academy of Appellate Lawyers represents that

―[i]n the real world, . . . most evidentiary objections do not matter very much to
the [summary judgment] decision.‖ Similarly, amicus curiae Association of


(footnote continued on next page)

23

objections commonly thrown up by the parties as part of the all-out artillery

exchange that summary judgment has become.‖ (Mamou v. Trendwest Resorts,

Inc. (2008) 165 Cal.App.4th 686, 711-712.) Indeed, the Biljac procedure itself

was designed to ease the extreme burden on trial courts when all ―too often‖

―litigants file blunderbuss objections to virtually every item of evidence

submitted.‖ (Demps, supra, 149 Cal.App.4th at pp. 578-579, fn. 6; Biljac, supra,

218 Cal.App.3d at p. 1419, fn. 3; see also Nazir v. United Airlines (2009) 178

Cal.App.4th 243, 248, 254 & fn. 3 [employer filed 324 pages of evidentiary

objections, consisting of 764 specific objections, which the Court of Appeal

characterized as the ―poster child‖ for abusive objections].) To counter that

disturbing trend, we encourage parties to raise only meritorious objections to items

of evidence that are legitimately in dispute and pertinent to the disposition of the

summary judgment motion. In other words, litigants should focus on the

objections that really count. Otherwise, they may face informal reprimands or

formal sanctions for engaging in abusive practices. At the very least, at the

summary judgment hearing, the parties — with the trial court‘s encouragement —

should specify the evidentiary objections they consider important, so that the court

can focus its rulings on evidentiary matters that are critical in resolving the

summary judgment motion.



(footnote continued from previous page)

Southern California Defense Counsel comments that ―[a]ll too often trial courts
face a flood of evidentiary objections, objections that may be addressed to matters
that are tangential at best, at least given the trial court‘s view of the critical issues
or evidence.‖ Amicus curiae California Academy of Appellate Lawyers asks that
we pronounce a ―message to trial lawyers that if they want the trial court to make
meaningful rulings, they should facilitate its doing so by choosing their battles
wisely and only objecting to evidence when it matters.‖

24

b. Application of Waiver Rule

In this case, Google submitted 31 pages of objections, raising more than

175 separate objections to evidence submitted by Reid. At least 50 of the

objections were based simply on ―relevance.‖ At the summary judgment hearing,

Google generally referred to, and asked the court to rule on, all of its previously

filed written objections. In a written order, the trial court ruled as follows: ―The

Court declines to render formal rulings on evidentiary objections. In ruling, the

Court relied on competent and admissible evidence pursuant to Biljac Assoc. v.

First Interstate Bank[, supra,] 218 Cal.App.3d 1410, 1419-1429.‖

The Court of Appeal refused to find waiver and explained: ―The fact is that

when a party properly brings an objection to the trial court‘s attention — i.e.,

when he files it in proper form — he has done everything he can or should be

required to do to bring about a ruling.‖ However, this case proves otherwise. At

the summary judgment hearing, Google incorporated by reference its written

objections, but also specifically objected to four items of evidence submitted by

Reid. Thus, Google had the opportunity to significantly narrow its objections and

wisely focused on what it considered to be key pieces of disputed evidence.

Nevertheless, because Google submitted its evidentiary objections in proper

form in writing and orally, all of its objections were preserved on appeal. Despite

the Court of Appeal‘s finding that the lack of a trial court ruling does not create

waiver, Google claims that the Court of Appeal essentially applied waiver

principles. It notes that the Court of Appeal ―presumed‖ that the trial court‘s

Biljac ruling was an implied overruling of its evidentiary objections and that the

trial court considered all of the objected-to evidence. Google argues that the Court

of Appeal incorrectly interpreted the Biljac ruling as a blanket admission of all

objected-to evidence and that its adoption of this ―presumed admitted rule‖ denied

Google the opportunity to ―squarely appeal issues of admissibility‖ and obtain a

25

ruling on its objections. Instead, according to Google, adoption of a ―presumed

sustained rule‖ is more appropriate under the well-established principle that trial

court rulings are construed in favor of affirming the lower court‘s order. Google

asks that we adopt the presumed sustained rule, arguing that ―it is more logically

consistent to presume that the trial court, in granting summary judgment and

issuing a Biljac ruling, implicitly ruled in favor of the prevailing party on all

evidentiary objections.‖

Reid responds that a presumed sustained rule is contrary to the clear

wording of section 437c, subdivision (c), that Google overlooks the distinction

between waived and presumptively overruled objections, and that the presumed

overruled approach taken by the Court of Appeal is supported by the statute. We

agree.

Section 437c, subdivision (c) states, in relevant part: ―In determining

whether the papers show that there is no triable issue as to any material fact the

court shall consider all of the evidence set forth in the papers, except that to which

objections have been made and sustained by the court . . . .‖ (Italics added.)

Because the trial court here did not sustain any of the objections, let alone make

any evidentiary rulings, it was required by section 437c, subdivision (c) to

consider all of Reid‘s evidence. Similarly, ―on appeal after a motion for summary

judgment has been granted, we review the record de novo, considering all the

evidence set forth in the moving and opposition papers except that to which

objections have been made and sustained.‖ (Guz, supra, 24 Cal.4th at p. 334.)

Thus, Google‘s presumed sustained approach is not supported by the statute.

On the other hand, the Court of Appeal‘s presumed overruled approach —

whereby it viewed the objectionable evidence as having been admitted into

evidence — is consistent with section 437c, subdivision (c), requiring the trial

court to consider all the evidence except that to which objections were made and

26

sustained. Google had a full opportunity to pursue its objections on appeal.

Having found that the lack of a ruling does not create waiver, the Court of Appeal

held that Google‘s objections were presumptively overruled, but — importantly —

were preserved for appeal. Google‘s contention that there is no distinction

between waived objections and those presumptively overruled overlooks that

waived objections will not be considered on appeal (Ann M., supra, 6 Cal.4th at p.

670, fn. 1), while presumptively overruled objections can still be raised on appeal,

with the burden on the objector to renew the objections in the appellate court.10

Thus, the Court of Appeal correctly determined that if the trial court fails to rule

expressly on specific evidentiary objections, it is presumed that the objections

have been overruled, the trial court considered the evidence in ruling on the merits

of the summary judgment motion, and the objections are preserved on appeal.

Here, the Court of Appeal considered Google‘s evidentiary objections on

the merits, in particular the admissibility of the statistical evidence and of certain

alleged ageist comments under the stray remarks rule. While Google may

disagree with the Court of Appeal‘s resolution of its evidentiary claims,

nevertheless, it has not been prejudiced by any application of a waiver rule.

Alternatively, Google asks that the matter be remanded to the trial court for

rulings on its evidentiary objections. It claims that the Court of Appeal‘s attempt

to cure the trial court‘s ambiguous Biljac ruling by deciding evidentiary issues for

the first time ―improperly seized the trial court‘s duties of determining the

parameters of the admissible evidentiary record,‖ and ―breache[d] the review

limitations placed upon it by the abuse of discretion standard.‖ On the other hand,


10

Indeed, Google never raised its presumed sustained argument in the Court

of Appeal. Instead, Google took on the burden of renewing its evidentiary
objections in the Court of Appeal.

27

Reid argues that the Court of Appeal correctly used a de novo review standard

since the trial court made no evidentiary rulings, and that a remand is not

necessary and would only result in delay. Agreeing with the Court of Appeal,

both Reid and amici curiae advocate for the application of a de novo review

standard in general, even where the trial court made evidentiary rulings. The

Court of Appeal explained: ―Because summary judgment is decided entirely on

the papers, and presents only a question of law, it affords very few occasions, if

any, for truly discretionary rulings on questions of evidence. Nor is the trial court

often, if ever, in a better position than a reviewing court to weigh the discretionary

factors.‖

We agree in part with Reid. First, because there was no exercise of trial

court discretion, the Court of Appeal had no occasion to determine whether the

trial court abused it. Second, Google expressly invited the Court of Appeal to

address its evidentiary objections, which the Court of Appeal reviewed de novo,

consistent with the general standard of review applicable to summary judgment

rulings, that any doubts as to the propriety of granting a summary judgment

motion should be resolved in favor of the party opposing the motion. (Miller v.

Bechtel Corp. (1983) 33 Cal.3d 868, 874.) Thus, we need not decide generally

whether a trial court‘s rulings on evidentiary objections based on papers alone in

summary judgment proceedings are reviewed for abuse of discretion or reviewed

de novo.

Finally, because Google did not ask the Court of Appeal to remand the

matter to the trial court for evidentiary rulings, its remand request comes too late.

In any event, no purpose would be served in returning this matter to the trial court

to re-review objections already considered by the Court of Appeal.

28

B. Stray Remarks Doctrine

Google contends that the Court of Appeal should have applied the stray

remarks doctrine, i.e., should have categorized the alleged statements by Hölzle

and Rosing as irrelevant stray remarks, and disregarded them in reviewing the

merits of the summary judgment motion. Specifically, Google claims that the

Court of Appeal erred in considering: (1) Hölzle‘s statements that Reid was

―slow,‖ ―fuzzy,‖ ―sluggish,‖ lethargic,‖ did not ―display a sense of urgency,‖ and

―lack[ed] energy‖ and his ideas were ―obsolete‖ and ―too old to matter‖; (2)

Rosing‘s statement to Reid at or around the time of his termination that he was not

a ―cultural fit‖; and (3) coworkers‘ comments referring to Reid as an ―old man‖

and ―old fuddy-duddy,‖ and a coworker‘s joke that his office placard should be an

―LP‖ instead of a ―CD.‖ Google argues that the statements were irrelevant

because they were made by non-decision-makers, were ambiguous, and were

unrelated to the adverse employment decision.11

1. Origin and Evolution of the Stray Remarks Doctrine

The term ―stray remarks‖ first appeared in a concurring opinion by Justice

O‘Connor in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 276 (Price

Waterhouse). In that case, the plaintiff, a senior manager at a nationwide

professional accounting firm, sued her employer for sex discrimination when it

refused to repropose her for partnership. (Id. at pp. 231-232.) In her concurrence,

Justice O‘Connor stated that ―stray remarks‖ — ―statements by

nondecisionmakers, or statements by decisionmakers unrelated to the decisional


11

Reid argues that Google failed to object in the trial court to nearly all of the

evidence it now characterizes as inadmissible stray remarks. Because the Court of
Appeal considered, on the merits, Google‘s objections to all of the remarks it
argued were stray, we need not determine whether those objections were made in
the trial court.

29

process itself‖ — do not constitute direct evidence of decision makers‘

―substantial negative reliance on an illegitimate criterion in reaching their

decision.‖ (Id. at p. 277.) Unlike direct evidence of discriminatory animus, stray

remarks, ―standing alone,‖ do not suffice to shift the burden of persuasion to the

employer; decision makers may make neutral, nondiscriminatory comments about

an employee‘s race or gender, such as referencing a ― ‗lady candidate.‘ ‖ (Ibid.)

However, Justice O‘Connor explained that stray remarks can be probative of

discrimination, and ultimately concluded that the plaintiff provided the requisite

direct evidence that decision makers had unlawfully based their decision on

gender. (Ibid.) Such evidence included remarks by a partner suggesting she

should ― ‗walk more femininely, talk more femininely, dress more femininely,

wear make-up, have her hair styled, and wear jewelry‘ ‖ to improve her chances

for partnership, and comments by other partners describing the plaintiff as

― ‗macho‘ ‖ and advising her to take ― ‗a course at charm school.‘ ‖ (Id. at 235.)

Since Price Waterhouse, federal circuit courts have adopted and notably

expanded Justice O‘Connor‘s analysis in employment discrimination cases to

create what has become known as the stray remarks doctrine. (See Reinsmith,

Proving an Employer’s Intent: Disparate Treatment Discrimination and the Stray

Remarks Doctrine After Reeves v. Sanderson Plumbing Products (2002) 55 Vand.

L.Rev. 219, 244-245.) Under this doctrine, federal circuit courts deem irrelevant

any remarks made by non-decisionmaking coworkers or remarks made by

decisionmaking supervisors outside of the decisional process, and such stray

remarks are insufficient to withstand summary judgment. (See, e.g., Hill v.

Lockheed Martin Logistics Mgmt., Inc. (4th Cir. 2004) 354 F.3d 277, 283, 295-296

(in bank) [coworker‘s comments that plaintiff was a ― ‗useless old lady‘ ‖ who

needed to retire, was a ― ‗troubled old lady,‘ ‖ and was a ― ‗damn woman‘ ‖ did

not influence the decisional process and, therefore, were not relevant]; Waggoner

30

v. City of Garland (5th Cir. 1994) 987 F.2d 1160, 1166 [direct supervisor‘s

statements that plaintiff was an ―old fart‖ and that a younger person could do

faster work deemed ―a mere ‗stray remark‘ . . . insufficient to establish age

discrimination‖].) Moreover, federal circuit courts have treated ambiguous

comments as stray remarks because they do not sufficiently indicate

discriminatory animus. (See, e.g., Fortier v. Ameritech Mobile Comm., Inc. (7th

Cir. 1998) 161 F.3d 1106, 1108, 1113 [supervisor‘s comments that she wanted

―new blood,‖ a ―quick study,‖ and someone with ―a lot of energy‖ did not reflect

age bias]; Nesbit v. Pepsico, Inc. (9th Cir. 1993) 994 F.2d 703, 705 [supervisor‘s

comment that ― ‗[w]e don‘t necessarily like grey hair‘ ‖ was ―uttered in an

ambivalent manner‖ and therefore ―not tied directly to‖ plaintiff‘s termination].)

In California, several appellate cases have analyzed certain remarks in terms

of whether they were stray. However, none of these cases explicitly adopted or

addressed the stray remarks doctrine. Instead, they considered the remarks in

totality with the other circumstances of the case. Three of these cases affirmed

summary judgment for the employer, though their outcomes turned more on each

plaintiff‘s failure to produce prima facie evidence of discrimination than on

application of a strict stray remarks doctrine. (Gibbs v. Consolidated Services

(2003) 111 Cal.App.4th 794, 798, 801 [although supervisor had commented

plaintiff was ―getting too old,‖ employer subsequently established plaintiff lacked

computer and management skills necessary for restructured company operations];

Slatkin v. Univ. of Redlands (2001) 88 Cal.App.4th 1147, 1160 [plaintiff‘s

allegation of anti-Semitic animus rested on ―an isolated remark by a person not

involved in the adverse employment decision‖]; Horn v. Cushman & Wakefield

Western, Inc. (1999) 72 Cal.App.4th 798, 801-803, 809 (Horn) [plaintiff‘s

allegation of age bias supported only by non-decisionmaking manager‘s single

remark that ―this is 1994, haven‘t you ever heard of a fax before?‖].) A fourth

31

case affirmed summary judgment for the employer, but turned entirely on the

plaintiff‘s failure to establish a prima facie case of pregnancy discrimination; the

plaintiff failed to make the requisite showing that her supervisor knew she was

pregnant or that she was visibly pregnant at the time of termination. (Trop v. Sony

Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1145, 1147-1148.)

In the remaining two decisions, the courts reversed summary judgment or

summary adjudication, examining the discriminatory remarks in context and

refusing to discount categorically those remarks as stray. (Sada v. Robert F.

Kennedy Medical Center (1997) 56 Cal.App.4th 138, 145, 154, fn.15 [decision

maker‘s derogatory comments about Mexicans during plaintiff‘s job interview

were not isolated remarks immaterial in proving discriminatory motive, but were

relevant comments raising inference hiring decision based on plaintiff‘s ancestry];

Kelly v. Stamps.com, Inc. (2005) 135 Cal.App.4th 1088, 1094 [decision maker‘s

―intonations about [plaintiff‘s] being pregnant‖ to the effect that plaintiff had

mentally ―checked out‖ made during discussion whether to retain plaintiff as

employee were evidence of discriminatory motive].)

In this case, the Court of Appeal rejected application of the stray remarks

doctrine, disagreeing ―with suggestions that a ‗single, isolated discriminatory

comment‘ [citation] or comments that are ‗unrelated to the decisional process‘ are

‗stray‘ and therefore, insufficient to avoid summary judgment [citation].‖ The

court recognized ―[t]here are certainly cases that in the context of the evidence as a

whole, the remarks at issue provide such weak evidence that a verdict resting on

them cannot be sustained. But such judgments must be made on a case-by-case

basis in light of the entire record, and on summary judgment the sole question is

whether they support an inference that the employer‘s action was motivated by

discriminatory animus. Their ‗weight‘ as evidence cannot enter into the question.‖

32

2. The Court of Appeal in This Case Correctly Rejected the Stray

Remarks Doctrine’s Categorical Exclusion of Evidence

Google contends that we should adopt the judicially created stray remarks

doctrine so that California courts can ―disregard discriminatory comments by co-

workers and nondecisionmakers, or comments unrelated to the employment

decision‖ ―to ensure that unmeritorious cases principally supported by such

remarks are disposed of before trial.‖ It argues that application of the stray

remarks doctrine is an important means for trial courts to sift out cases ―too weak

to raise a rational inference that discrimination occurred.‖ (Guz, supra, 24 Cal.4th

at p. 362.) On the other hand, Reid argues that courts should not view the remarks

in isolation, as Google invites, but that those remarks should be considered with

all the evidence in the record. As explained below, we agree with Reid for several

reasons.

First, strict application of the stray remarks doctrine, as urged by Google,

would result in a court‘s categorical exclusion of evidence even if the evidence

was relevant. An age-based remark not made directly in the context of an

employment decision or uttered by a non-decision-maker may be relevant,

circumstantial evidence of discrimination. (Shager v. Upjohn Co. (7th Cir. 1990)
913 F.2d 398, 402 (Shager) [stray remark ―may be relevant evidence, with greater

or less probative value depending on the precise character of remark‖].) Indeed,

Justice O‘Connor, who coined the term ―stray remarks,‖ stated that stray remarks

do not constitute ―direct evidence‖ of discriminatory animus, but acknowledged

that such remarks can be ―probative.‖ (Price Waterhouse, supra, 490 U.S. at p.

277 (conc. opn. of O‘Connor, J.).)

In a later decision authored by Justice O‘Connor, the United States Supreme

Court declined to apply strictly the stray remarks doctrine in an age discrimination

case relating to evidence of a decision maker‘s remark not made in the direct

33

context of the employment decision. (Reeves v. Sanderson Plumbing Products,

Inc. (2000) 530 U.S. 133, 152-153 (Reeves).) In Reeves, a jury had returned a

verdict in favor of an employee. The federal district court denied the employer‘s

motion for judgment as a matter of law, but the Fifth Circuit Court of Appeals

reversed the judgment, finding that no rational trier of fact could have found that

the employee was fired because of his age.12 The court of appeals acknowledged

― ‗the potentially damning nature‘ ‖ of the decision maker‘s age-related comments,

but nevertheless discounted them on the ground they ― ‗were not made in the

direct context of [the plaintiff‘s] termination.‘ ‖ (Reeves, at p. 152.)

The high court criticized the court of appeals for disregarding those

comments along with other evidence presented by the plaintiff, and for failing to

draw all reasonable inferences in favor of the plaintiff. It noted that, by

disregarding critical evidence favorable to the plaintiff and crediting evidence

presented by the employer, the court of appeals ―impermissibly substituted its

judgment concerning the weight of the evidence for the jury‘s.‖ (Reeves, supra,

530 U.S. at p. 153.) The court held that if the plaintiff establishes a prima facie

case and demonstrates pretext through circumstantial evidence, including evidence

of discriminatory comments by a decision maker unrelated to the adverse

employment decision, then a reasonable trier of fact may infer intentional

discrimination. (Id., at pp. 148, 153-154.) Thus, Reeves indicates that even if age-

related comments can be considered stray remarks because they were not made in

the direct context of the decisional process, a court should not categorically


12

The court in Reeves noted that, under the federal rules, the standard for

granting summary judgment (Fed. Rules Civ. Proc., rule 56, 28 U.S.C.) ―mirrors‖
the standard for judgment as a matter of law (Fed. Rules Civ. Proc., rule 50, 28
U.S.C.), such that ― ‗the inquiry under each is the same,‘ ‖ i.e., that the court must
review the record ― ‗taken as a whole.‘ ‖ (Reeves, 530 U.S. at p. 150.)

34

discount the evidence if relevant; it should be left to the fact finder to assess its

probative value.

In a decision after Reeves, the Fifth Circuit Court of Appeals impliedly

rejected the stray remarks doctrine. The court warned that the stray remarks

doctrine ― ‗is itself inconsistent with the deference appellate courts traditionally

allow juries regarding their view of the evidence presented and so should be

narrowly cabined.‘ [Citation.]‖ (Russell v. McKinney Hosp. Venture (5th Cir.

2000) 235 F.3d 219, 229 (Russell).) The court concluded that ―[a]ge-related

remarks are appropriately taken into account when analyzing . . . evidence‖ of

discrimination ―even if not in the direct context of the decision and even if uttered

by one other than the formal decisionmaker, provided that the individual is in a

position to influence the decision.‖ (Ibid.).

Consistent with Reeves and Russell, we have stated that in ruling on a motion

for summary judgment, ―the court may not weigh the plaintiff's evidence or

inferences against the defendants‘ as though it were sitting as the trier of fact.‖

(Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at p. 856) Similarly, here, the

Court of Appeal noted that by discounting age-related comments as stray remarks,

a court would be permitted to do what it is otherwise prohibited from doing on a

summary judgment motion, i.e., weigh the evidence. (See e.g., Horn, supra, 72

Cal.App.4th at p. 809 [acknowledging trial court was prohibited from weighing

the evidence, but then finding stray remark was ―entitled to virtually no weight in

considering whether firing was pretextual or whether decision maker harbored

discriminatory animus‖ (italics added)].)

Google contends that a trial court must assess the relative strength and nature

of the evidence presented on summary judgment in determining if the plaintiff has

―created only a weak issue of fact.‖ (Reeves, supra, 530 U.S. at p. 148.)

However, Google overlooks that a review of all of the evidence is essential to that

35

assessment. The stray remarks doctrine, as advocated by Google, goes further. It

allows a court to weigh and assess the remarks in isolation, and to disregard the

potentially damaging nature of discriminatory remarks simply because they are

made by ―nondecisionmakers or [made] by decisionmakers unrelated to the

decisional process.‖ (Price Waterhouse, supra, 490 U.S. at p. 277 (conc. opn. of

O‘Connor, J.); see Reeves, supra, 530 U.S. at pp. 152-153; Tomassi v. Insignia

Financial Group, Inc. (2d Cir. 2007) 478 F.3d 111, 116 [―[w]e did not mean to

suggest that remarks should first be categorized either as stray or not stray and

then disregarded if they fall into the stray category‖].) Google also argues that

ambiguous remarks are stray, irrelevant, prejudicial, and inadmissible. However,

―the task of disambiguating ambiguous utterances is for trial, not for summary

judgment.‖ (Shager, supra, 913 F.2d at p. 402 [―On a motion for summary

judgment the ambiguities . . . must be resolved against the moving party.‖].)

Determining the weight of discriminatory or ambiguous remarks is a role reserved

for the jury. (See Reeves, supra, 530 U.S. at pp. 152-153.) The stray remarks

doctrine allows the trial court to remove this role from the jury.

Second, strict application of the stray remarks doctrine would be contrary to

the procedural rules codified by statute and adopted in our cases. Section 473c,

subdivision (c), directs that, at the summary judgment stage, courts ―shall consider

all of the evidence set forth in the papers . . . and all inferences reasonably

deducible from the evidence.‖ (See also Aguilar v. Atlantic Richfield Co., supra,

25 Cal.4th at p. 856 [―court[s] must consider all of the evidence and all of the

inferences drawn therefrom‖].)

Google argues that adoption of the stray remarks doctrine provides a

necessary means for courts to ―winnow out‖ weak cases that fail to raise a rational

inference of discrimination. However, a totality of circumstances analysis

successfully winnows out cases ―too weak to raise a rational inference that

36

discrimination occurred.‖ (Guz, supra, 24 Cal.4th at p. 362 [court may grant

summary judgment where ― ‗the plaintiff created only a weak issue of fact as to

whether the employer‘s reason was untrue and there was abundant and

uncontroverted independent evidence that no discrimination had occurred‘ ‖].)

― ‗Whether judgment as a matter of law is appropriate in any particular case will

depend on a number of factors,‘ ‖ including ― ‗the strength of the plaintiff‘s prima

facie case, the probative value of the proof that the employer‘s explanation is

false, and any other evidence that supports the employer‘s case . . . .‘ ‖ (Ibid.,

quoting Reeves, supra, 530 U.S. at pp. 148-149.) Although stray remarks may not

have strong probative value when viewed in isolation, they may corroborate direct

evidence of discrimination or gain significance in conjunction with other

circumstantial evidence. Certainly, who made the comments, when they were

made in relation to the adverse employment decision, and in what context they

were made are all factors that should be considered. Thus, a trial court must

review and base its summary judgment determination on the totality of evidence in

the record, including any relevant discriminatory remarks.

Third, the stray remarks cases merely demonstrate the ―common-sense

proposition‖ that a slur, in and of itself, does not prove actionable discrimination.

(Shager, supra, 913 F.2d at p. 402; see also Waggoner v. City of Garland, supra,

987 F.2d at p. 1166 [―mere stray remarks, with nothing more, are insufficient to

establish a claim of age discrimination‖ (italics added)].) A stray remark alone

may not create a triable issue of age discrimination. (See e.g., Merrick v. Farmers

Ins. Group (9th Cir. 1990) 892 F.2d 1434, 1438-1439 [employer‘s statement that

replacement employee had been hired because he was a ― ‗bright, intelligent,

knowledgeable young man‘ ‖ was insufficient to defeat summary judgment].) But

when combined with other evidence of pretext, an otherwise stray remark may

37

create an ―ensemble [that] is sufficient to defeat summary judgment.‖ (Shager,

supra, 913 F.2d at p. 403, italics added.)

Fourth, because there is no precise definition of who is a decision maker or

what constitutes remarks made outside of the decisional process in the

employment context, federal circuit courts have diverged in determining what

constitutes a stray remark. While courts characterize remarks by non-decision-

makers as stray, they disagree as to who is a decision maker. Some courts have

required that the speaker be the final decision maker in order to consider the

remark as evidence of discriminatory animus or pretext. (See, e.g., Hall v. Giant

Food, Inc. (D.C. Cir. 2007) 175 F.3d 1074, 1079-1080.) Other courts have

considered remarks made by a speaker merely involved in the decisionmaking.

(See, e.g., Rose v. New York City Bd. Of Educ. (2d Cir. 2001) 257 F.3d 156, 162

[stray remark analysis focused on speaker‘s influence in the ―decision making

process‖]; Woodson v. Scott Paper Co. (3d Cir. 1997) 109 F.3d 913, 922 [stray

remarks analysis focused on whether speaker was in ― ‗the chain of

decisionmakers who had the authority to hire and fire plaintiff‘ ‖].) Yet other

courts permit discriminatory remarks made by subordinate employees that

implicate decision makers. (See, e.g., Bergene v. Salt River Project Agr.

Improvement & Power Dist. (9th Cir. 2001) 272 F.3d 1136, 1141 [manager‘s

motive imputed to employer though manager was not ―ultimate decisionmaker‖];

see also Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 668-669

[racially biased statement by author of negative recommendation letter to a

university appointments, promotions, and tenure committee properly considered

because decisionmaking body relied on the letter author‘s recommendation].)

As noted by the court in Shager, the stray remarks doctrine contains a major

flaw because discriminatory remarks by a non-decisionmaking employee can

influence a decision maker. ―If [the formal decision maker] acted as the conduit

38

of [an employee‘s] prejudice – his cat‘s paw – the innocence of [the decision

maker] would not spare the company from liability.‖ (Shager, supra, 913 F.2d at

p. 405.) Many federal circuit courts have adopted Shager‘s analysis, finding that

discriminatory comments by someone in a position to influence a decision maker

were relevant. (See, e.g., Russell, supra, 235 F.3d at p. 227 [citing cases in which

courts found subordinates‘ discriminatory comments influenced decision makers];

Hunt v. City of Markham (7th Cir. 2000) 219 F.3d 649, 652-653; Kendrick v.

Penske Transp. Servs., Inc. (10th Cir. 2000) 220 F.3d 1220, 1231.)

Federal courts have also disagreed about how close in time the discriminatory

remark must be to the unfavorable employment decision to categorize it as stray.

Some courts have permitted evidence of comments made years before the adverse

employment decision, while others have disregarded remarks made just months

before the decision. (Compare Danzer v. Norden Systems, Inc. (2d Cir. 1998) 151

F.3d 50, 54-55 [reversed summary judgment for employer where supervisor called

current staff ―a bunch of ‗alt[er] cockers‘ ‖ or ― ‗old fogies‘ ‖ more than a year

before plaintiff‘s job elimination because they were ―part of a sequence of events

culminating in his discharge‖] and Brewer v. Quaker State Oil Refining Corp. (3d

Cir. 1995) 72 F.3d 326, 333 [reversed summary judgment for employer where

statement in company newsletter two years before plaintiff‘s termination described

two new executives as ― ‗star young men,‘ ‖ explaining, ― ‗[t]hat age group is our

future‘ ‖] with Ptasznik v. St. Joseph Hosp. (7th Cir. 2006) 464 F.3d 691, 693, 695

[affirmed summary judgment for employer on age and national origin

discrimination claims though supervisor made comments that plaintiff was ― ‗too

old,‘ ‖ ― ‗too Polish,‘ ‖ and ― ‗stupid‘ ‖ one to three months before termination]

and Fortier v. Ameritech Mobile Comm., supra, 161 F.3d at pp. 1108, 1113

[affirmed summary judgment for employer where human resources vice president

stated four months before termination it was time for ― ‗new blood‘ ‖ and a 26-

39

year-old worker was a ― ‗quick study‘ ‖].) Also, while some courts have found it

determinative that the remarks were not directly related to the employment

decision, others have found that comments unrelated to the decision were relevant

evidence of discriminatory animus. (Compare Nesbit v. Pepsico, Inc., supra, 994

F.2d at p. 705 [affirmed summary judgment for employer where decision maker‘s

remark ― ‗[w]e don‘t want unpromotable fifty-year olds around‘ ‖ not related

directly or indirectly to employees‘ terminations] and Nidds v. Schindler Elevator

Corp. (9th Cir. 1996) 113 F.3d 912, 918-919 [affirmed summary judgment for

employer where decision maker‘s casual comment he intended to get rid of ― ‗old

timers‘ ‖ ― ‗not tied directly to‘ ‖ employee‘s termination] with Estes v. Dick

Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1104 [reversed jury verdict for

employer and remanded for new trial where manager told racist jokes at staff

meetings and referred to Blacks as ― ‗damn niggers‘ ‖] and Ercegovich v.

Goodyear Tire & Rubber Co. (6th Cir. 1998) 154 F.3d 344, 356 [―management‘s

consideration of an impermissible factor in one context may support the inference

that the impermissible factor entered into the decisionmaking process in another

context‖].)

Finally, federal courts have treated identical remarks inconsistently. For

instance, some courts have viewed decision makers‘ statements that older

employees are not ―promotable‖ as evidence of age discrimination, while others

have refused to permit that inference from the same remark. (Compare Cline v.

Roadway Express, Inc. (4th Cir. 1982) 689 F.2d 481, 488 [affirmed district court‘s

judgment against employer where decision maker fired employee because he was

not ―promotable‖ and replaced him with younger, potentially promotable person in

accordance with his understanding of company policy] with Coleman v. Quaker

Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1282, 1284-1285 [affirmed summary

judgment for employer, finding use of word ―promotable‖ by itself did not give

40

rise to inference of age discrimination] and Nesbit v. Pepsico, Inc., supra, 994

F.2d at p. 705 [affirmed summary judgment for employer where vice-president of

personnel stated ― ‗[w]e don‘t want unpromotable fifty-year olds around‘ ‖].

Some federal courts have found employers‘ statements about the need for

―new blood‖ or ―young blood‖ to be ageist remarks, while others have not.

(Compare Danzer v. Norden Systems, Inc., supra, 151 F.3d at p. 53 [reversed

summary judgment for employer where supervisor made comments including

― ‗[w]e need new blood – new and younger‘ ‖] and Meschino v. Int’l Tel. & Tel.

Corp. (S.D.N.Y. 1983) 563 F.Supp. 1066, 1071 [denied summary judgment for

employer where company‘s CEO announced that managers ― ‗had to bring [in]

younger blood, younger executives, change the mix‘ ‖] with Fortier v. Ameritech

Mobile Comm., Inc., supra, 161 F.3d at p. 1113 [affirmed summary judgment for

employer even though plaintiff‘s direct supervisor said ― ‗new blood‘ would be

good in [plaintiff‘s job] position‖] and Gagné v. Northwestern Nat’l Insur. Co.

(6th Cir. 1989) 881 F.2d 309, 314 [affirmed summary judgment for employer even

though plaintiff‘s supervisor commented during a meeting he ― ‗needed younger

blood‘ ‖].

Similarly, federal courts have disagreed as to the ageist nature of references

to ―grey hair.‖ (Compare Palasota v. Haggar Clothing Co. (5th Cir. 2003) 342

F.3d 569, 573, 578 [reversed district court‘s judgment as matter of law for

employer where company president said there was enough ― ‗graying of the sales

force‘ ‖ and manager said ― ‗we‘ve got an aging, graying sales force out there‘ ‖]

with Sandstad v. CB Richard Ellis, Inc. (5th Cir. 2002) 309 F.3d 893, 898

[affirmed summary judgment for employer even though senior manager

responsible for employee‘s firing expressed concern over perception the company

had ― ‗too much grey hair‘ ‖ in management] and Nesbit v. Pepsico, Inc., supra,

994 F.2d at p. 705 [affirmed summary judgment for employer even though

41

supervisor told plaintiff ― ‗[w]e don‘t necessarily like grey hair‘ ‖ because

comment not directly tied to plaintiff‘s termination].) Courts have also disagreed

as to the ageist nature of the term ―old fart.‖ (Compare Minshall v. McGraw Hill

Broadcasting Co., Inc. (10th Cir. 2003) 323 F.3d 1273, 1281 [affirmed judgment

after jury verdict for plaintiff where comments included company director‘s

statement she was disgusted when ―she saw an ‗old fart‘ on television without a

shirt‖] and Bevan v. Honeywell, Inc. (8th Cir. 1997) 118 F.3d 603, 607, 610

[affirmed judgment after jury verdict for plaintiff where human resources head

stated placement of ―old farts‖ in organization was difficult] with Waggoner v.

City of Garland, supra, 987 F.2d at p. 1166 [affirmed summary judgment for

employer even though director called plaintiff an ―old fart‖ and told him a younger

person could do faster work].)

As shown above, federal courts have widely divergent views regarding who

constitutes a decision maker and how much separation must exist between the

remark and an adverse employment decision for the remark to be considered stray.

As Reid points out, the only consistency to the federal stray remarks cases is that

the probative value of the challenged remark turns on the facts of each case. That

was the approach taken by the Court of Appeal here. The court considered the so-

called ―stray remarks‖ by Hölzle, Rosing, and Reid‘s coworkers in combination

with all of the evidence. Reid‘s other evidence included: (1) an e-mail exchange

between Google cofounder Brin and Rosing in which he told Rosing and other

executives to ―avoid the tendency toward bloat here particularly with highly paid

individuals‖ and Rosing‘s response that he was replacing Reid as director of

operations with the younger Hölzle, noting, ―We are looking for a senior Director

(note I did not capitalize Sr.) or VP level person to run this operation. . . .‖; (2) an

e-mail exchange between CEO Schmidt and Rosing regarding a proposal on

―getting [Reid] out,‖ in which Rosing responded they should change the decision

42

not to give Reid a bonus to avoid ―a judge concluding we acted harshly. . . .‖; (3)

explanations by Rosing and Shona Brown that Reid was terminated because he

was not a ―cultural fit‖; (4) statistical evidence of discrimination at Google; (5)

Reid‘s demotion to a nonviable position before his termination; and (6) changed

rationales for Reid‘s termination.13 Moreover, the Court noted Reid presented

evidence that Rosing and Hölzle supervised him and were involved in the

termination decisions, thus calling into question whether Rosing‘s and Hölzle‘s

alleged ageist comments even qualify as stray remarks.

Accordingly, in reviewing the trial court‘s grant of Google‘s summary

judgment motion, the Court of Appeal properly considered evidence of alleged

discriminatory comments made by decision makers and coworkers along with all

other evidence in the record.14


13

Reid presented evidence that he was not given any reason for his

termination other than lack of ―cultural fit,‖ and was told the graduate program
would continue and his termination was not performance based. Reid asserts that
Google raised job elimination and performance problems as a basis for his
termination for the first time in its motion for summary judgment.
14

Google argues that Reid‘s statistical evidence was inadmissible and the

parties argue the merits of whether the Court of Appeal correctly concluded there
was a triable issue of material fact as to pretext. However, those issues are beyond
the scope of review.

43

III. DISPOSITION

For the reasons stated above, we affirm the judgment of the Court of

Appeal.

CHIN, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.



44



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Reid v. Google, Inc.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 155 Cal.App.4th 1342
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S158965
Date Filed: August 5, 2010
__________________________________________________________________________________

Court:
Superior
County: Santa Clara
Judge: William J. Elfving

__________________________________________________________________________________

Attorneys for Appellant:

Duane Morris, Barry L. Bunshoft, Ray L. Wong, Paul J. Killion, Lorraine P. Ocheltree, Eden E. Anderson
and Allegra A. Jones for Plaintiff and Appellant.

Charlotte E. Fishman for California Employment Lawyers Association as Amicus Curiae on behalf of
Plaintiff and Appellant.

Thomas W. Osborne, Melvin Radowitz and Barbara A. Jones for AARP as Amicus Curiae on behalf of
Plaintiff and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Wilson Sonsini Goodrich & Rosati, Fred W. Alvarez, Marina C. Tsatalis, Amy K. Todd, Marvin
Dunson III, Koray J. Bulut, Elizabeth C. Tippett, Jeanna Steele, Gary M. Gansle; Paul, Hastings,
Janofsky & Walker and Paul W. Cane, Jr., for Defendant and Respondent.

Greines, Martin, Stein & Richland and Robert A. Olson for Association of Southern California Defense
Counsel as Amicus Curiae on behalf of Defendant and Respondent.

Orrick, Herrington & Sutcliffe, Gary S. Siniscalco, Patricia K. Gillette, Greg J. Richardson and Lynne C.
Hermle for Employers Group and California Employment Law Council as Amici Curiae on behalf of
Defendant and Respondent.

Jonathan B. Steiner, Jay-Allen Eisen, Jon B. Eisenberg, Dennis A. Fischer, Steven L. Mayer, Robert A.
Olson, Douglas R. Young; Greines, Martin, Stein & Richland and Robin Meadow for California Academy
of Appellate Lawyers as Amicus Curiae.







Counsel who argued in Supreme Court (not intended for publication with opinion):

Paul J. Killion
Duane Morris
Spear Tower
One Market Plaza, Suite 2200
San Francisco, CA 94105-1127
(415) 957-3000

Paul W. Cane, Jr.
Paul, Hastings, Janofsky & Walker
55 Second Street, Twenty-Fourth Floor
San Francisco, CA 94105-3441
(415) 856-7000

Robert A. Olson
Greines, Martin, Stein & Richland
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90036
(310) 859-7811


Petition for review after the Court of Appeal affirmed in part and reversed in part the judgment in a civil action. This case presents the following issues: (1) Should California law recognize the "stray remarks" doctrine, which permits the trial court in ruling on a motion for summary judgment to disregard isolated discriminatory remarks or comments unrelated to the decision-making process as insufficient to establish discrimination? (2) Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 08/05/201050 Cal. 4th 512, 235 P.3d 988, 113 Cal. Rptr. 3d 327S158965Review - Civil Appealsubmitted/opinion due

HEGGNES v. RISLEY (S170374)


Parties
1Reid, Brian (Plaintiff and Appellant)
Represented by Barry L. Bunshoft
Duane Morris, LLP
One Market, Spear Tower, Suite 2200
San Francisco, CA

2Reid, Brian (Plaintiff and Appellant)
Represented by Lorraine Page Ocheltree
Duane Morris, LLP
One Market, Spear Tower, Suite 2200
San Francisco, CA

3Reid, Brian (Plaintiff and Appellant)
Represented by Paul J. Killion
Duane Morris, LLP
One Market, Spear Tower, Suite 2000
San Francisco, CA

4Google, Inc. (Defendant and Respondent)
Represented by Koray James Bulut
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA

5Google, Inc. (Defendant and Respondent)
Represented by Paul W. Cane
Paul, Hastings, Janofsky & Walker, LLP
55 Second Street, 24th Floor
San Francisco, CA

6Google, Inc. (Defendant and Respondent)
Represented by Elizabeth Chika Tippett
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA

7Google, Inc. (Defendant and Respondent)
Represented by Marina C. Tsatalis
Wilson, Sonsini, Goodrich & Rosati
1301 Avenue of the Americas, 40th Floor
New York, NY

8Google, Inc. (Defendant and Respondent)
Represented by Fred W. Alvarez
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA

9AARP Foundation (Amicus curiae)
Represented by Thomas Osborne
AARP Legal Foundation
601 "E" Street N.W.
Washington, DC

10AARP Foundation (Amicus curiae)
Represented by Barbara A. Jones
AARP Foundation Litigation
200 S. Los Robles, Suite 400
Pasadena, CA

11Association of Southern California Defense Counsel (Amicus curiae)
Represented by Robert A. Olson
Greines Martin Stein & Richland, LLP
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA

12California Academy of Appellate Lawyers (Amicus curiae)
Represented by Robin Meadow
Greines Martin, Stein & Richland, LLP
5900 Wilshire Boulevard, 12th Floor
Los Angeles, CA

13California Employment Law Council (Amicus curiae)
Represented by Greg James Richardson
Orrick, Herrington et al.
405 Howard Street
San Francisco, CA

14California Employment Lawyers Association (Amicus curiae)
Represented by Charlotte Fishman
Pick Up the Pace
100 Pine Street, 33rd Floor
San Francisco, CA

15Employers Group (Amicus curiae)
Represented by Lynne Charlotte Hermle
Orrick Herrington et al.
1000 Marsh Road
Menlo Park, CA

16Employers Group (Amicus curiae)
Represented by Greg James Richardson
Orrick, Herrington et al.
405 Howard Street
San Francisco, CA


Opinion Authors
OpinionJustice Ming W. Chin

Dockets
Dec 11 2007Petition for review filed
  Google Inc., Respondent by Fred W. Alvarez, Counsel Opinion was modified on November 1, 2007 - Change in the Judgement.
Dec 11 2007Record requested
 
Dec 13 2007Received Court of Appeal record
  one full box
Dec 13 2007Received Court of Appeal record
  one file folder/briefs
Dec 14 2007Request for extension of time filed
  Brian Reid, plaintiff and appellant by Paul J. Killion, counsel; requesting 11 days until 1/11/08 to file answer to petition.
Dec 19 2007Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer to the petition for review is extended to and including January 4, 2008.
Jan 4 2008Answer to petition for review filed
  Brian Reid, plaintiff and appellant Paul Killion, counsel
Jan 11 2008Note:
  Requested all missings briefs.
Jan 14 2008Reply to answer to petition filed
  Google, Inc., defendant and respondent Fred Alvarez, counsel
Jan 22 2008Received:
  Letter dated 1-22-08 Brian Reid, appellant Paul Killion, counsel
Jan 30 2008Petition for review granted (civil case)
  George, C.J., was absent and did not participate. Votes: Baxter, A.C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ.
Feb 6 2008Request for extension of time filed
  for respondent to file the opening brief on the merits, to 3-28-08.
Feb 6 2008Certification of interested entities or persons filed
  Brian Reid, appellant Paul Killion, counsel
Feb 15 2008Certification of interested entities or persons filed
  Google, Inc., respondent by Marvin Dunson III, Counsel
Feb 21 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 28, 2008.
Mar 28 2008Opening brief on the merits filed
  Google Inc., respondent Marvin Dunson III, counsel
Apr 8 2008Request for extension of time filed
  to file the answer brief on the merits, to 5-27-08. Brian Reid, appellant
Apr 15 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including May 27, 2008.
May 27 2008Answer brief on the merits filed
  Brian Reid, appellant Paul Killion, counsel
Jun 16 2008Reply brief filed (case fully briefed)
  Google Inc., defendant and respondent Fred Alvarez, counsel
Jun 16 2008Request for judicial notice filed (granted case)
  Google Inc., defendant and respondent
Jul 16 2008Received application to file Amicus Curiae Brief
  Employers Group and California Employment Law Council in support of respondent Greg Siniscalco, Lynne Hermle, counsel
Jul 16 2008Received application to file Amicus Curiae Brief
  California Employment Lawyers Association, in support of appellant Charlotte Fishman, counsel
Jul 16 2008Received application to file Amicus Curiae Brief
  AARP Barbara Jones, Thomas Osborne, counsel
Jul 17 2008Received application to file Amicus Curiae Brief
  Association of Southern California Defense Counsel, in support of respondent Robert Olson, counsel
Jul 17 2008Received application to file Amicus Curiae Brief
  California Academy of Appellate Lawyers Robin Meadow, counsel
Aug 4 2008Permission to file amicus curiae brief granted
  The application of California Employment Lawyers Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 4 2008Amicus curiae brief filed
  California Employment Lawyers Association in support of appellant Charlotte Fishman, counsel
Aug 4 2008Permission to file amicus curiae brief granted
  The application of Employers Group and California Employment Law Council for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 4 2008Amicus curiae brief filed
  Employers Group and California Employment Law Counsel in support of respondent Greg Richardson, Lynne Hermle, counsel
Aug 4 2008Permission to file amicus curiae brief granted
  The application of California Academy of Appellate Lawyers for permission to file an amicus curiae brief is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 4 2008Amicus curiae brief filed
  California Academy of Appellate Lawyers Robin Meadow, counsel
Aug 4 2008Permission to file amicus curiae brief granted
  The application of Association of Southern California Defense Counsel for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 4 2008Amicus curiae brief filed
  Association of Southern California Defense Counsel in support of respondent Robert Olson, Counsel
Aug 4 2008Permission to file amicus curiae brief granted
  The application of AARP for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 4 2008Amicus curiae brief filed
  AARP in support of appellant Barbara Jones, Thomas Osborne, counsel
Aug 15 2008Request for extension of time filed
  Parties' joint request for extension of time to respon to the amicus curiae briefs. Extension requested to 9-3-08.
Aug 21 2008Extension of time granted
  On joint application of the parties and good cause appearing, it is ordered that the time to serve and file the responses to the amicus curiae briefs is extended to and including September 3, 2008.
Sep 3 2008Response to amicus curiae brief filed
  Google Inc., respondent Fred Alvarez, counsel response to amicus brief of AARP
Sep 3 2008Response to amicus curiae brief filed
  Google Inc., respondent Fred Alvarez, counsel response to amicus brief of Calif. Employment Lawyers Assn.
Sep 3 2008Response to amicus curiae brief filed
  Brian Reid, appellant Paul Killion, counsel response to amicus brief of Employment Law Council and Employers Group
Sep 3 2008Response to amicus curiae brief filed
  Brian Reid, appellant Paul Killion, counsel response to amicus briefs of Calif. Academy of Appellate Lawyers and Association of Southern Calif. Defense Counsel
Feb 22 2010Association of attorneys filed
  Google Inc. associates as co-counsel in this case Paul W. Cane.
Feb 23 2010Received:
  Supplemental Authorities Letter received from Paul W. Crane, Jr., counsel for Google Inc., Defendant and Respondent.
Mar 19 2010Notice of substitution of counsel
  Marvin Dunson, III and Amy K. Todd have left Wilson, Sonsini, Goodrich & Rosati and should be removed from the court docket as attorneys of record for defendant and respondent Google, Inc. Google Inc. substitutes in: Marina C. Tsatalis of Wilson, Sonsini, Goodrich & Rosati
Apr 9 2010Supplemental briefing ordered
  The parties are directed to serve and file briefs discussing the following questions: The waiver provisions of Code of Civil Procedure section 437c, subdivisions (b)(5) and (d) require the evidentiary objections to be made at the hearing. Would written objections filed before the summary judgment hearing be sufficient to preserve evidentiary objections? If not, when and how must the evidentiary objections be made to be deemed made at the hearing? The parties are directed to serve and file their briefs within 20 days of the date of this order, and may serve and file responsive briefs within 15 days thereafter.
Apr 9 2010Request for judicial notice granted
  Respondent's request for judicial notice, filed on June 16, 2008, is granted.
Apr 29 2010Supplemental brief filed
Plaintiff and Appellant: Reid, BrianAttorney: Paul J. Killion   call from counsel (5-3-10) indicating missing footnotes in brief - amended brief being mailed.
Apr 30 2010Supplemental brief filed
Defendant and Respondent: Google, Inc.Attorney: Fred W. Alvarez  
May 3 2010Received:
  Errata to Supplemental Brief filed by Appellant Brian Reid.
May 5 2010Case ordered on calendar
  to be argued Wednesday, May 26, 2010, at 9:00 a.m., in San Francisco
May 12 2010Application filed
  application to divide oral argument time filed by Paul W. Cane, Jr., counsel for respondent Google, Inc., requesting to share 12 minutes of time with amicus curiae Association of Southern California Defense Counsel. (Application contains stipulation to Justice Kennard's participation in the case.)
May 12 2010Filed:
  Request to divide oral argument time, filed by Paul J. Killion, counsel for appellant Reid, requesting to share time with co-counsel Barry L. Bunshoft.
May 12 2010Request for judicial notice filed (Grant or AA case)
Defendant and Respondent: Google, Inc.Attorney: Paul W. Cane  
May 13 2010Supplemental brief filed
Defendant and Respondent: Google, Inc.Attorney: Paul W. Cane   Reply
May 13 2010Filed:
  Amended application of Google, Inc. for divided argument, filed by counsel Paul W. Cane, Jr. Requesting that respondent's counsel present rebuttal despite the fact that amicus counsel may argue first.
May 13 2010Order filed
  The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to Paul J. Killion 15 minutes and Barry L. Bunshoft 15 minutes of appellant's 30-minute allotted time for oral argument is granted.
May 14 2010Supplemental brief filed
Plaintiff and Appellant: Reid, BrianAttorney: Paul J. Killion  
May 14 2010Stipulation filed
  Stipulation by counsel Paul J. Killion and Barry L. Bunshoft, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 17 2010Stipulation filed
  Stipulation by counsel Paul W. Cane, Jr., that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 17 2010Received:
  Notice of Errata Regarding Combined Responsive Supplemental Brief and Brief on New Authorities by Attorney for Appellant.
May 26 2010Stipulation filed
  Stipulation by counsel Paul W. Cane, Jr., that respondent has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 26 2010Stipulation filed
  Stipulation by counsel Paul J. Killion and Barry L. Bunshoft, that appellant has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 26 2010Cause argued and submitted
 
Jun 1 2010Received:
  from counsel for amicus curiae (Assoc. of Southern Calif. Defense Counsel) Application for Leave to file Request for Judicial Notice.
Jun 8 2010Order filed
  The application of counsel for amicus curiae Association of Southern California Defense Counsel, for permission to file a Request for Judicial Notice is hereby denied.
Aug 4 2010Notice of forthcoming opinion posted
  To be filed on Thursday, August 5, 2010 @ 10 a.m.

Briefs
Mar 28 2008Opening brief on the merits filed
 
May 27 2008Answer brief on the merits filed
 
Jun 16 2008Reply brief filed (case fully briefed)
 
Aug 4 2008Amicus curiae brief filed
 
Aug 4 2008Amicus curiae brief filed
 
Aug 4 2008Amicus curiae brief filed
 
Aug 4 2008Amicus curiae brief filed
 
Aug 4 2008Amicus curiae brief filed
 
Sep 3 2008Response to amicus curiae brief filed
 
Sep 3 2008Response to amicus curiae brief filed
 
Sep 3 2008Response to amicus curiae brief filed
 
Sep 3 2008Response to amicus curiae brief filed
 
Brief Downloads
application/pdf icon
s158965_appellant-answer-brief-on-the-merits.pdf (516338 bytes) - Appellant's Answer Brief on the Merits
application/pdf icon
s158965_appellant-answer-to-petition-for-review.pdf (244136 bytes) - Appellant's Answer to Petition for Review
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s158965_appellant-supplemental-brief.pdf (204719 bytes) - Appellant's Supplemental Brief
application/pdf icon
s158965_respondent-opening-brief-on-the-merits.pdf (546565 bytes) - Respondent's Opening Brief on the Merits
application/pdf icon
s158965_respondent-petition-for-review.pdf (548758 bytes) - Respondent's Petition for Review
application/pdf icon
s158965_respondent-reply-brief-on-the-merits.pdf (186305 bytes) - Respondent's Reply Brief on the Merits
application/pdf icon
s158965_respondent-reply-to-answer-to-petition-for-review.pdf (189542 bytes) - Respondent's Reply to Answer to Petition for Review
application/pdf icon
s158965_respondent-supplemental-brief.pdf (150527 bytes) - Respondent's Supplemental Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 24, 2011
Annotated by Joel Cazares

Annotation by Joel Cazares

Facts

An employee of Google from June 2002 through February 2004, Plaintiff Brian Reid was hired by Google as a director of operations and director of engineers. Reid has a Ph.D. in computer science and was an associate professor of electrical engineering at Stanford University before coming to Google. Reid alleged that while at Google, his supervisors and other employees made derogatory age-related remarks to Reid. His ideas were called “obsolete” and he was told that he was “slow,” “fuzzy,” “sluggish,” and “lethargic.” After being demoted from his directorship in October 2003, Reid was asked to develop an in-house graduate degree program, as well as a recruiting program for undergraduates. In January 2004, senior management at Google decided not to pay Reid a bonus for 2003, and concluded that a severance package was more appropriate. Reid alleged that he was granted permission to look for another job within the company, but that senior management conspired with other department heads to prevent him from getting a new role within their departments. On February 27, Reid formally left Google with a two-month severance package. He filed his wrongful termination suit on July 20, 2004.

Procedural History

Reid filed an age discrimination lawsuit against his former employer, Google. The complaint alleged 12 causes of action, including claims for age discrimination under the California Fair Employment and housing Act (FEHA) (Gov. Code, § 12900 et seq.) and California’s unfair completion law (UCL) (Bus. & Prof. Code, § 17200 et seq.); wrongful termination in violation of public policy; failure to prevent discrimination; and both negligent and intentional infliction of emotional distress. Reid sought injunctive relief, disgorgement of profits, restitution of lost stock options, and attorney fees and costs.
Google demurred and brought motions to strike for various causes of action, which were granted in part. Google then filed for summary judgment as to the remaining causes of action based on claims of age discrimination by Google. Google also filed written objections to evidence Reid submitted, but the trial court did not rule specifically on those objections.
The trial court granted Google’s summary judgment motion relating to Reid’s claims. The Court of Appeal reversed, finding that undisputed evidence supported a prima facie case of age discrimination. Also, statistical evidence that Reid had presented raised a triable issue of material fact. Although Google had filed written objections to this evidence, the trial court did not expressly rule on them. The Court of Appeal held that the trial court’s failure to rule on the objections did not waive them on appeal. The court concluded that Reid’s evidence and inferences of discrimination raised a triable issue of fact, and thus that the trial court erred in granting Google’s motion for summary judgment.

Issues

  • Does a trial court’s failure to rule on a party’s evidentiary objections relating to a summary judgment motion waive the objections on appeal?
  • Should California courts follow the federal courts in adopting the “stray remarks doctrine” in employment discrimination cases?

Holding

  • No, a trial court’s failure to rule on a party’s evidentiary objections relating to a summary judgment motion does not waive the objections on appeal. The Court of Appeal correctly determined that a finding of waiver does not depend on whether a trial court rules expressly on evidentiary objections and that Google’s filing of written evidentiary objections before the summary judgment hearing preserved them on appeal.
  • The Court of Appeal correctly determined that application of the stray remarks doctrine is unnecessary. The Supreme Court of California declined to adopt the “stray remarks” doctrine for California.

Analysis

  • The Court of Appeal correctly determined that a finding of waiver does not depend on whether a trial court rules expressly on evidentiary objections. Here, because there was no exercise of trial court discretion, the Court of Appeal had no occasion to determine whether the trial court abused it. Google expressly invited the Court of Appeal to address its evidentiary objections, which the Court of Appeal reviewed de novo, consistent with the general standard of review applicable to summary judgment rulings, that any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion. Miller v. Bechtel Corp., 33 Cal.3d 868, 874 (1983). Thus, the Supreme Court of California did not need to decide generally whether a trial court‘s rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo. Lastly, the Court found that no purpose would be served in returning this matter to the trial court to re-review objections already considered by the Court of Appeal.
  • The “stray remarks” doctrine originated in a concurring opinion by Justice O‘Connor in Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989). In this case, the Court of Appeal rejected application of the stray remarks doctrine, disagreeing with suggestions that a single, isolated discriminatory comment or comments that are unrelated to the decisional process are “stray” and therefore, insufficient to avoid summary judgment. The court recognized there are certainly cases that in the context of the evidence as a whole, the remarks at issue provide such weak evidence that a verdict resting on them cannot be sustained. But such judgments must be made on a case-by-case basis in light of the entire record, and on summary judgment the sole question is whether they support an inference that the employer‘s action was motivated by discriminatory animus. Their weight as evidence cannot enter into the question.

Disposition

The Court affirmed the judgment of the Court of Appeal.

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Tags

Employment Law
Employment Discrimination
Stray Remarks Doctrine
Biljac
Age Discrimination