CHRISTOFFERSEN v. SOKA UNIVERSITY OF AMERICAGAYE CHRISTOFFERSEN, Plaintiff and Appellant,v.SOKA UNIVERSITY OF AMERICA, Defendant and Respondent.
Court of Appeals of California, Fourth District, Division Three.
Filed April 15, 2011.Glicker & Associates, Brian Glicker, and Maryam Atighechi; Gaye Christoffersen, in pro. per., for Plaintiff and Appellant.Musick, Peeler & Garrett, Steven D. Weinstein, David M. Lester, and Adam L. Johnson for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IKOLA, J.Plaintiff Gaye Christoffersen appeals a judgment entered in favor of defendant Soka University of America (Soka) following a successful summary judgment motion.1 Christoffersen does not contend summary judgment was inappropriate based on the evidence presented to the court in the parties' respective submissions; instead, she argues the court erred by declining to continue the summary judgment hearing to allow Christoffersen additional time for discovery pursuant to Code of Civil Procedure section 437c, subdivision (h).2 We affirm. Christoffersen failed to make an adequate showing under section 437c, subdivision (h), and the court did not abuse its discretion by denying the request for a continuance.
Christoffersen, a university professor, sued Soka for alleged religious discrimination and age discrimination after Soka denied her application for tenure. Christoffersen alleged she was denied tenure because: (1) she refused to join a Buddhist organization, Soka Gakkai International-USA (Soka Gakkai); and (2) she was 62 years old at the time of her tenure denial.Christoffersen's initial complaint was filed on May 22, 2008, and her first amended complaint was filed September 4, 2008. Soka filed an answer to the first amended complaint on February 4, 2009.
Motion for Summary Judgment
On April 24, 2009, Soka filed a motion for summary judgment, noticing the hearing for September 4, 2009. Soka asserted Christoffersen could not establish a prima facie case of discrimination because Soka had legitimate, nondiscriminatory reasons for its decision to deny tenure to Christoffersen, and because there was no evidence the stated reasons for the decision were pretextual.
Included with Soka's summary judgment papers were declarations by several Soka officials involved in the tenure process. For instance, Provost Tomoko Takahashi declared in relevant part: "Dr. Christoffersen was one of four candidates being considered for tenure in Spring 2008, whose applications I reviewed. Neither religion nor age played any role in my decision regarding tenure for any of the candidates. In fact, at all times during the Spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure. The three other candidates were granted tenure."
Also included in the summary judgment papers were declarations executed by the three professors who received tenure in the spring of 2008. Professor Edward Lowe attested: he was granted tenure in the spring of 2008; he was not and is not a member of the religious organization Soka Gakkai; he was 41 years old in the spring of 2008; and he had no knowledge that religion or age played a role in his tenure application. Professor XiaoXing Liu and Professor Hiroshi Matsumoto, both awarded tenure in the spring of 2008 at ages 56 and 50, respectively, also attested to their lack of Soka Gakkai membership and the absence of religion or age as a factor in the tenure application process.
Christoffersen never served any written discovery requests (i.e., interrogatories, inspection demands, or requests for admission) during the pendency of the lawsuit.On July 22, 2009, Christoffersen served deposition notices (set for August 5-7) for four Soka-affiliated individuals: Dean of Faculty Edward Feasel, Provost Tomoko Takahashi, Professor Phat Vu, and Professor Gail Thomas. After discussion by the parties as to witness availability, the depositions were scheduled for August 6, August 7, August 12, and August 13. Nevertheless, on August 11, Christoffersen called off the depositions of Professor Thomas and Dean Feasel, claiming the depositions could not proceed without the production of records pertaining to the professors who received tenure in the spring of 2008.
The deposition notices specified certain categories of documents to be produced at the depositions. The Dean Feasel notice included (among 25 separate requests) requests for: "documents which show that `neither religion nor age played any role in my decision regarding tenure for any of the candidates'"; "documents which show that `in fact, at all times during spring 2008 tenure review process, I did not know the religion or age of any of the four candidates who were being considered for tenure'"; and "documents upon which you relied to grant the three other candidates tenure." The notice for Provost Takahashi included similar document requests among the 25 categories requested. The other two deposition notices did not request documents pertaining to the other spring 2008 candidates for tenure.
Ex Parte Application
On August 13, 2009, Christoffersen filed an ex parte application, seeking the following relief: (1) an order compelling Soka to produce certain "tenure packets," which consisted of documents pertaining to the successful tenure applications of professors who were granted tenure at the same time Soka denied tenure to Christoffersen; and (2) an order continuing the summary judgment hearing.
In addition to a memorandum of points and authorities, Christoffersen's attorney, Maryam Atighechi, filed a separate document in support of the ex parte application. Although this document was titled "Declaration of Maryam Atighechi," it was not executed under penalty of perjury.
The document stated as follows: "1. I am an attorney at law . . . . All of the statements made herein are of my own personal knowledge and, if called upon to testify thereto could, and would, do so competently. [¶] 2. [I provided sufficient ex parte notice to counsel for opposing parties.] [¶] 3. The application to continue the Motion for Summary Judgment is made in good faith. At the deposition of Provost Tomoko Takahashi Plaintiff learned that the Provost's decision to grant or deny an applicant's tenure was inconsistent with the [Rank and Tenure Committee's] recommendations. [¶] 4. Plaintiff needs further discovery in order to properly oppose Soka University's Motion for Summary Judgment.""5. The discovery plaintiff is requesting are the documents pertaining to 1) Application for tenure 2) [Rank and Tenure Committee] report and notes 3) [university-wide University Rank and Tenure Committee] report and notes 4) Dean Feasel's reports and notes 5) Provost Tomoko Takahashi's decision 6) IDEA evaluations for the five individuals granted tenure.""6. Soka University provided supporting declarations from two applicants who were granted tenure alleging that neither age nor religion played a role in granting them tenure. [¶] 7. Plaintiff needs to evaluate the tenure packet to determine the basis for granting them tenure. This is especially true since at the Provosts deposition she admitted that the [Rank and Tenure Committee] recommended denial of tenure for certain applicants including Hiroshimi Matsumoto. [¶] 8. A continuance is needed to obtain facts essential to oppose the motion for summary judgment."
The court denied the ex parte application by way of a minute order dated August 14, 2009. Christoffersen represents in her brief that the court "did not provide a reason as to the denial of the ex parte application and, after reproaching counsel for Christoffersen for generating paperwork, instructed that the request for continuance be made in the Opposition to Motion for Summary Judgment." Christoffersen elected to proceed on appeal without a reporter's transcript. Thus, it is impossible for this court to consider what was said by the court at the ex parte hearing.
Opposition to Summary Judgment
One week later, Christoffersen filed her opposition to Soka's summary judgment motion. In her memorandum of points and authorities, Christoffersen repeated the argument she raised in her ex parte application: the court should compel production of tenure packets for those professors who received tenure contemporaneously with Christoffersen's rejection and the court should continue the summary judgment hearing to allow her time to review the tenure packets.
Attorney Maryam Ateghechi filed a declaration (under penalty of perjury) in opposition to Soka's motion for summary judgment. But this declaration made no mention of the need for additional evidence and a continuance. Instead, Ateghechi purported to authenticate various exhibits (e.g., deposition transcript excerpts, documents obtained during the litigation or from public sources) for purposes of opposing the motion for summary judgment on the merits.
The court granted Soka's summary judgment motion. The court explained its denial of the request for continuance in a written order as follows: "Plaintiff has failed to submit a declaration detailing what facts she intended to obtain to oppose the motion and why such evidence could not be presented at the present time. In addition, plaintiff has not demonstrated reasonable diligence in discovery. This motion was filed in April." As noted above, Christoffersen elected to proceed without a reporter's transcript; thus, we are unable to consider what might have been said at the summary judgment hearing. The court entered judgment on September 29, 2009.
Christoffersen asserts the court erred in granting summary judgment. Her sole argument is that the court should have continued the summary judgment hearing to allow her time to discover additional facts to oppose the motion.3"If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due." (§ 437c, subd. (h), italics added.)A court must provide relief to a party opposing summary judgment if a proper showing is made by affidavit. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).)"A declaration in support of a request for continuance under section 437c, subdivision (h), must show: `(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]' [Citation.] . . . `It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."'" (Cooksey, supra, 123 Cal.App.4th at p. 254.) A lack of diligence in pursuing discovery is a recognized factor supporting the denial of a continuance request. (Id. at p. 257.) "A good faith showing that further discovery is needed to oppose summary judgment requires some justification for why such discovery could not have been completed sooner." (Ibid.)
Here, Christoffersen failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h) — submission of an affidavit pertaining to the need for a continuance. (See Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Atighechi's "declaration" in support of the ex parte application was not filed under penalty of perjury and therefore cannot be considered an "affidavit" at all. "An affidavit is a written declaration under oath . . . ." (§ 2003.) An affidavit (or declaration) executed in California should include a representation "in substantially the following form: [¶] . . . `I certify (or declare) under penalty of perjury that the foregoing is true and correct' . . . ." (§ 2015.5, subd. (a).)
Atighechi's declaration in opposition to the summary judgment motion had no bearing on the issue of a continuance. Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h). (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353-1354; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.)
Moreover, even if we were to credit Ateghechi's ex parte "declaration" as an "affidavit," Christoffersen still fell short of the requirements under section 437c, subdivision (h). Ateghechi expressed a desire to obtain specific categories of documents in the "tenure packets" of several professors who received tenure at the time Christoffersen was denied tenure. But Ateghechi did not explain how obtaining such documents would provide her with "facts essential to justify opposition" as required by section 437c, subdivision (h). The tenor of the request is that exploratory discovery needed to occur, rather than Christoffersen needed more time to obtain specific facts to oppose the summary judgment motion.
Furthermore, Christoffersen made no showing of diligence in the discovery process. Her ex parte application (filed one week before her opposition to the motion for summary judgment was due) attempted to compel the production of the "tenure packets." But Christoffersen never made a freestanding request for production of such documents under section 2031.010, and only (arguably) requested such documents in deposition notices served less than a month before her opposition to summary judgment was due. Even assuming the document requests in the deposition notices can be read to include requests for the tenure packets, Christoffersen made no effort to explain why she waited so long to seek these documents.
Given the lack of a sufficient declaration, the court's decision to deny Christoffersen's request for continuance is reviewed for an abuse of discretion. The factors identified by the court in its minute order (failure to prepare proper declaration, lack of diligence) and the rest of the record provided to us suggest the court was within its discretion. Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)
The judgment is affirmed. Soka shall recover costs incurred on appeal.WE CONCUR:O'LEARY, ACTING P. J.FYBEL, J.