Filed 6/4/15 Raju v. County of LA Dept. of Mental Health CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


KARIAVANDAN RAJU,                                                     B252169

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. BC481742)
         v.

COUNTY OF LOS ANGELES
DEPARTMENT OF MENTAL HEALTH,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H.
Strobel, Judge. Affirmed.


         Duchrow & Piano, David J. Duchrow and Jill A. Piano for Plaintiff and Appellant.


         McCune & Harber, Christy L. O’Donnell, Heather M. Bean and Grace H. Kang
for Defendant and Respondent.
                                            _____________________
                                    INTRODUCTION
       Plaintiff Kariavandan Raju sued his employer, the County of Los Angeles
Department of Mental Health (the Department), for discrimination and retaliation under
the Fair Employment and Housing Act, Government Code section 12960, et seq.
(FEHA). The trial court granted the Department’s motion for summary judgment,
concluding the Department had nondiscriminatory and nonretaliatory reasons for the
challenged employment actions and Plaintiff failed to exhaust his administrative remedy
with respect to some of his claims. We reach the same conclusion and affirm.
                   FACTS1 AND PROCEDURAL BACKGROUND
       1.     Background
       Plaintiff is of Indian racial descent and national origin. He has a Ph.D. in social
work and has been a licensed clinical social worker since 1997. Plaintiff is employed by
the Department as a Psychiatric Social Worker II, a position he has held since 2000.
       On April 8, 2011, Plaintiff filed a charge of discrimination with the Department of
Fair Employment and Housing (DFEH), alleging that from July 11, 2004 to the present,
he had been “denied a promotion to Supervising Psychiatric Social Worker.” On March
28, 2012, Plaintiff filed the instant action against the Department. The operative second
amended complaint alleges that, between April 2006 and September 2011, the
Department denied Plaintiff eight promotions because of his race and national origin, and
in retaliation for filing a DFEH complaint, all in violation of FEHA.




1
       The facts are drawn primarily from the Department’s separate statement of
undisputed facts, which Plaintiff either conceded or did not effectively counter with
admissible evidence. (See, e.g., Chateau Chamberay Homeowners Assn. v. Associated
Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 340, fn. 1; R. P. Richards, Inc. v. Chartered
Construction Corp. (2000) 83 Cal.App.4th 146, 151, fn. 3.) To the extent Plaintiff
offered additional or competing facts on a material issue, we state the evidence admitted
by the trial court in the light most favorable to Plaintiff, as the nonmoving party, in
accordance with the applicable standard of review for summary judgments. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)


                                             2
       2.     The Internal Promotion Process for Permanent Employees
       The Department uses a competitive examination process to award internal
promotions. The Department fills Supervising Psychiatric Social Worker vacancies from
an eligibility list of qualified permanent employees who successfully pass an examination
administered by the Exams Analyst. The Department ranks candidates on the eligibility
list in five “bands” based upon the candidates’ training and experience and an Appraisal
of Promotability. Candidates in Band 1 are ranked the highest; Band 5, the lowest.
       When there is a vacant position, the Department hiring supervisors interview
candidates from the eligibility list, beginning with Band 1. Supervisors are permitted to
interview candidates in a sequentially lower band if: (1) there are fewer than five
candidates in the current band; (2) after a reasonable time, candidates in the current band
do not respond to the supervisor’s contact; or (3) a candidate in the current band has
declined the position and/or there are no other candidates in the band. Before supervisors
may access candidates in a lower band, they must contact the Selection Unit and explain
why they were unable to promote a candidate from the current band.
       Based on the interviews and application materials the hiring supervisors determine
the most qualified candidate for the position. Before the Department offers the position
to the selected candidate, a separate supervisor must approve the promotion.
       3.     Plaintiff Interviews for Five Positions from 2006 to 2009
       In April 2006, Plaintiff interviewed for a vacant Supervising Psychiatric Social
Worker position at the Men’s Central Jail. However, after assessing the specific needs of
the subject program, the Department determined the vacant position did not require a
supervisor and could be filled by a Psychiatric Social Worker. In May 2006, the
Department advised Plaintiff of its reassessment and decision to fill the position with a
Psychiatric Social Worker.




                                             3
       In August 2006, Plaintiff interviewed to be a “Team Leader.” Team Leader is a
functional title and not an official position with a civil service classification. Though
Team Leaders may assume certain administrative or supervisory responsibilities, they do
not receive any additional pay or benefits, and the Team Leader retains his or her official
job title and classification. Because of its unofficial nature, Team Leader vacancies are
not subject to the competitive selection process used to fill Supervising Psychiatric Social
Worker positions. After interviewing Plaintiff, the Department did not appoint him to be
a Team Leader in 2006.
       In June 2008, Plaintiff again interviewed to be a Team Leader. At the time, the
Department did not require Team Leaders to be licensed social workers, and the
Department appointed two unlicensed individuals instead of Plaintiff. After these
appointments, Plaintiff filed a complaint with his union, challenging the practice of
appointing unlicensed social workers as Team Leaders. The Department and Plaintiff’s
union agreed Team Leaders must be licensed, and removed the unlicensed individuals
from their appointments.
       In January 2009, Plaintiff interviewed to be an interim Team Leader, while the
serving Team Leader was on a temporary leave of absence. After Plaintiff’s interview,
the serving Team Leader’s subordinate offered to temporarily “fill in” as interim Team
Leader until her superior returned. In view of her familiarity with the serving Team
Leader’s responsibilities, the Department decided to appoint the subordinate instead of
Plaintiff.
       In March 2009, Plaintiff and several others interviewed for a vacant Team Leader
appointment. The Department appointed a candidate who had four years of supervisory
experience instead of Plaintiff.




                                              4
       4.     Plaintiff Interviews for Three Positions from 2010 to 2011 and Files a
              Charge of Discrimination with DFEH
       In May 2010, Plaintiff took the Supervising Psychiatric Social Worker
examination and placed in Band 3 on the eligibility list. Plaintiff’s notice of results
designated May 27, 2010 as the “Promulgation date” for his eligibility listing and May
27, 2011 as the “Expiration date.”
       In September 2010, Plaintiff applied for a vacant Supervising Psychiatric Social
Worker position. There were 11 employees in Band 2 for the position, and 10 employees
in Band 3. No employees placed in Band 1. The Department interviewed Plaintiff and
another Psychiatric Social Worker, Ellen Wong, who had placed in Band 2. At the time,
Wong had been working with chronically ill patients in need of acute care, which
required a higher degree of skill than the more routine clinical work that most other
Psychiatric Social Workers encountered. The Department promoted Wong to the
position.
       On April 8, 2011, Plaintiff filed a charge of discrimination with the DFEH,
wherein he alleged the Department denied him “a promotion to Supervising Psychiatric
Social Worker” from “on or about [July 1, 2004] through the present” because of his race
and national origin.
       On May 4, 2011, Plaintiff submitted an online application to renew his eligibility
for the Supervising Psychiatric Social Worker position, and applied for a vacant
Supervising Psychiatric Social Worker position the same day. However, because the
“Eligibility Information” section of the Supervising Psychiatric Social Worker Promotion
Opportunity Bulletin states that no person may compete for the examination more than
once in a twelve month period, the Department Recruitment Unit’s policy is to not
process renewal applications within 12 months of a candidate’s eligibility promulgation
date. In accordance with that policy, the Department did not process Plaintiff’s
application until after May 27, 2011, when it placed him back on the eligibility list.




                                              5
       Although Plaintiff was not on the Supervising Psychiatric Social Worker
eligibility list when he applied on May 4, 2011, the Department nevertheless interviewed
him for the position on June 8, 2011. The hiring supervisors interviewed five other
candidates as well, asking each of them a series of eight standardized questions. The
supervisors also asked each candidate to bring a resume and other documents to the
interview. Plaintiff failed to bring the requested documents, and the supervisors noted
that he seemed apathetic about his work for the Department in his responses to their
questions. In contrast, another candidate, Joan Hubbell, who had placed in Band 1,
brought the requested documentation, and the hiring supervisors noted she seemed
enthusiastic and ready for the transition into a leadership role. The Department promoted
Hubbell.
       In September 2011, Plaintiff submitted an online application for a Mental Health
Clinical Supervisor position.2 The duties of the position included release planning for
inmates, which required a familiarity with the court system and discharge planning in
addition to the usual supervisory responsibilities. One of the candidates interviewed for
the position, Monica Lujan, had been a Supervising Psychiatric Social Worker with a Los
Angeles County superior court program. Based on Lujan’s supervisory experience and
familiarity with the court system, including her background in discharge and release
planning, the Department determined she was the most qualified candidate for the
position.
       5.     The Complaint
       On March 28, 2012, Plaintiff filed the instant action against the Department. In
his operative second amended complaint, Plaintiff asserted three causes of action for race
discrimination, national origin discrimination, and retaliation in violation of FEHA. The
complaint alleged the Department failed to promote Plaintiff for eight positions to which
he applied between 2006 and September 2011 and that the Department allowed Plaintiff’s


2
         The record does not indicate whether the Department promulgated an eligibility
list for the Mental Health Clinical Supervisor position.


                                            6
eligibility for the Supervising Psychiatric Social Worker position to lapse in May 2011
because of his race and national origin. With respect to the retaliation claim, Plaintiff
alleged he “was retaliated against by not receiving the June 8, 2011 promotion due to his
[DFEH] charge filed on April 8, 2011.”
       6.     The Department’s Motion for Summary Judgment
       The Department moved for summary judgment on the principal grounds that it had
legitimate nondiscriminatory and nonretaliatory reasons for offering the subject
promotions to candidates other than Plaintiff and that Plaintiff failed to timely exhaust his
administrative remedy with respect to some of the alleged acts of discrimination.
       Plaintiff did not dispute the material facts concerning his band ranking in relation
to the employees who received the promotions, nor did he challenge those employees’
qualifications or experience that the Department cited as the grounds for its promotion
decisions. Instead, in opposing the Department’s summary judgment motion, Plaintiff
sought to demonstrate that the band-ranking process was pretextual by introducing a
series of purported emails in which hiring supervisors for a handful of different positions
discussed strategies to “reach” candidates in lower bands despite the apparent availability
of candidates in higher bands. Plaintiff attached the emails as an exhibit to his
declaration, but provided no explanation about where the emails came from or how he
acquired them. The Department objected to the proffered email evidence on the grounds
that the documents were not authenticated and irrelevant.3


3
       Plaintiff contends the trial court erred by permitting the Department to file a 110-
page document purporting to reply to Plaintiff’s response to the Department’s separate
statement. While we conclude there was no prejudice, as the facts set forth in the
Department’s initial separate statement established its right to judgment as a matter of
law, we agree with Plaintiff that the subject document was improper. Nothing in Code of
Civil Procedure section 437c authorizes the moving party to file a reply to the opposing
party’s separate statement response, and certainly nothing authorizes the court to consider
such matters in ruling on a summary judgment motion. (See, e.g., San Diego
Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [trial court’s
consideration of evidence submitted for the first time with moving party’s reply violated
due process rights of party opposing summary judgment].)


                                              7
       7.     The Court’s Ruling Granting Summary Judgment
       The trial court granted the Department’s summary judgment motion. The court
determined that Plaintiff’s failure to file a timely DFEH charge barred his discrimination
claims for alleged adverse employment actions that occurred more than one year before
he filed his April 8, 2011 charge of discrimination. As for the discrimination and
retaliation claims that were not time-barred, the court concluded that Plaintiff had failed
to introduce admissible evidence of pretext in response to the Department’s proffered
nondiscriminatory and nonretaliatory reasons for the alleged adverse employment
actions. In that regard, the court sustained the Department’s objection to the email
evidence on the ground that the emails had not been authenticated. The court also
reasoned that the emails were insufficient to raise a triable issue of fact because they did
not pertain to any of Plaintiff’s promotion opportunities and none of the emails suggested
the decision to reach a lower ranked candidate had been motivated by any candidate’s
race or national origin.
                                      DISCUSSION
       1.     Plaintiff Failed to Exhaust FEHA’s Administrative Remedy for the Alleged
              Adverse Employment Actions that Occurred More than One Year Before He
              Filed His DFEH Charge of Discrimination
       As a threshold matter, we first address the trial court’s conclusion that Plaintiff
failed to exhaust his administrative remedy with respect to the alleged adverse
employment actions that occurred more than one year before he filed his April 8, 2011
charge of discrimination with the DFEH. Under FEHA, an employee must exhaust the
statute’s administrative remedy by filing a complaint with the DFEH and obtaining a
notice of right to sue before filing a civil action in court. (Romano v. Rockwell Internat.,
Inc. (1996) 14 Cal.4th 479, 492.) The timely filing of an administrative complaint is a
jurisdictional prerequisite to bringing a civil action for damages under FEHA. (Ibid.)
“As for the applicable limitation period, the FEHA provides that no complaint for any
violation of its provisions may be filed with the [DFEH] ‘after the expiration of one year
from the date upon which the alleged unlawful practice or refusal to cooperate occurred,’


                                              8
with an exception for delayed discovery not relevant here.” (Ibid., quoting Gov. Code,
§ 12960, italics omitted.)
       As noted, Plaintiff filed his charge of discrimination with the DFEH on April 8,
2011. Accordingly, under the foregoing rules, any alleged adverse employment action
that occurred before April 8, 2010 cannot be a basis for his FEHA claims, unless the
continuing violation doctrine applies.
       Under the continuing violation doctrine “an employer is liable for actions that take
place outside the limitations period if these actions are sufficiently linked to unlawful
conduct that occurred within the limitations period.” (Yanowitz v. L'Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1056 (Yanowitz).) “A continuing violation may be established
by demonstrating ‘a company wide policy or practice’ or ‘a series of related acts against a
single individual.’ ” (Morgan v. Regents of University of California (2001)
88 Cal.App.4th 52, 64 (Morgan).) “The plaintiff must demonstrate that at least one act
occurred within the filing period and that ‘the harassment is “more than the occurrence of
isolated or sporadic acts of intentional discrimination.” [Citation.] The relevant
distinction is between the occurrence of isolated, intermittent acts of discrimination and a
persistent, on-going pattern.’ ” (Ibid.)
       To invoke the doctrine, the evidence must show the employer’s actions “(1) [were]
sufficiently similar in kind . . . ; (2) have occurred with reasonable frequency; (3) and
have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc. (2001)
26 Cal.4th 798, 823 (Richards); Yanowitz, supra, 36 Cal.4th at p. 1059.)
“ ‘[P]ermanence’ ” in this context is properly understood to mean “that an employer’s
statements and actions make clear to a reasonable employee that any further efforts at
informal conciliation to obtain reasonable accommodation or end harassment will be
futile.” (Richards, at p. 823; Yanowitz, at p. 1059, fn. 19.) Thus, even if a course of
unlawful conduct is established, the continuing violation doctrine ceases to apply “when
the course of conduct is brought to an end, as by the employer’s cessation of such
conduct or by the employee’s resignation, or when the employee is on notice that further
efforts to end the unlawful conduct will be in vain.” (Richards, at p. 823.)


                                              9
       We conclude each of the Department’s eight decisions not to promote Plaintiff
over the subject five-and-a-half-year period constituted a discrete act that reached a state
of permanence at the moment the Department awarded the promotion to another
candidate. With respect to each promotion opportunity predating April 8, 2010, Plaintiff
acknowledged in his response to the Department’s separate statement of undisputed facts
that he understood he would not be promoted once he received notice of the
Department’s decision to award the position to another candidate. Plaintiff also
understood there were no avenues available outside the Department’s mandated
examination process for obtaining the promotion. Nevertheless, despite each realization
that the Department’s promotion decision was final, Plaintiff did not invoke his
administrative remedy under FEHA until several years later. The trial court properly
concluded the continuing violation doctrine did not apply and that Plaintiff’s failure to
file a timely charge of discrimination with the DFEH barred his claims concerning
adverse employment actions that occurred outside the one-year statutory period.4 (See,
e.g., National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 114
[“Discrete acts such as termination, failure to promote, denial of transfer, or refusal to
hire are easy to identify. Each incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable ‘unlawful employment
practice.’ ”].)




4
       Plaintiff contends the continuing violation in the instant case is “improper
manipulation of the evaluation and selection process.” To establish this violation,
Plaintiff apparently means to rely on the email evidence the trial court excluded in
granting the Department’s motion for summary judgment. As we conclude that the trial
court reasonably acted within its discretion to exclude these emails (see post), we also
must conclude that Plaintiff failed to offer admissible evidence to establish this purported
continuing violation.


                                             10
       2.     Standard of Review and the Three-stage McDonnell Douglas Test for
              Employment Discrimination and Retaliation Claims
       We turn now to Plaintiff’s discrimination and retaliation claims that were subject
to a timely DFEH charge. We begin with the applicable standard of review. “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 v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 334 (Guz).) We make “an independent assessment of the correctness of
the trial court’s ruling, applying the same legal standard as the trial court in determining
whether there are any genuine issues of material fact or whether the moving party is
entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995)
32 Cal.App.4th 218, 222.)
       A defendant is entitled to summary judgment upon a showing that the plaintiff’s
action has no merit. (Code Civ. Proc., § 437c, subd. (a).) The defendant meets this
burden with respect to each cause of action by establishing undisputed facts that negate
one or more elements of the claim or state a complete defense to the cause of action.
(Id., subd. (p)(2); Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at p. 487.) Once
the defendant has made such a showing, the burden shifts to the plaintiff to show that a
triable issue of material fact exists as to the cause of action or defense. (Aguilar, supra,
25 Cal.4th at pp. 849, 853.)
       In the employment discrimination context, case law has refined the foregoing
burden-shifting analysis to incorporate the three-stage McDonnell Douglas test used to




                                             11
try discrimination claims.5 (See Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088,
1097 (Kelly); Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1004-
1005 (Scotch); see also Guz, supra, 24 Cal.4th at p. 354.) Under the McDonnell Douglas
test, a plaintiff employee who claims discrimination must first make a prima facie case,
consisting of evidence showing (1) the plaintiff was a member of a protected class;
(2) the plaintiff was qualified for the position he or she sought or was performing
competently in the position held; (3) the plaintiff suffered an adverse employment action,
such as termination, demotion, or denial of an available job; and (4) some other
circumstance suggests a discriminatory motive. (Guz, at p. 354-355.) Once the
employee satisfies this burden, there 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 “ ‘legitimate’ ” reason is one that 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 presumption
disappears, and the employee, who retains the overall burden of persuasion, then must
show the employer’s reasons are pretexts for discrimination, or produce other evidence of
intentional discrimination. (Id. at p. 356.)




5
        “Because of the similarity between state and federal employment discrimination
laws, California courts look to pertinent federal precedent when applying our own
statutes. [Citation.] In particular, California has adopted the three-stage burden-shifting
test established by the United States Supreme Court for trying claims of
discrimination . . . based on a theory of disparate treatment.” (Guz, supra, 24 Cal.4th
at p. 354, citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.) “This so-
called McDonnell Douglas test reflects the principle that direct evidence of intentional
discrimination is rare, and that such claims must usually be proved circumstantially.
Thus, by successive steps of increasingly narrow focus, the test allows discrimination to
be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily
explained.” (Guz, at p. 354.)


                                               12
          As the court explained in Kelly, “[a] defendant employer’s motion for summary
judgment slightly modifies the order of these showings.” (Kelly, supra,135 Cal.App.4th
at p. 1097.) If the employer’s summary judgment motion “relies in whole or in part on a
showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden
as moving party if it presents evidence of such nondiscriminatory reasons that would
permit a trier of fact to find, more likely than not, that they were the basis for the
termination.” (Id. at pp. 1097-1098, citing Aguilar, supra, 25 Cal.4th at pp. 850-851;
Guz, supra, 24 Cal.4th at p. 357.) “To defeat the motion, the employee then must adduce
or point to evidence raising a triable issue, that would permit a trier of fact to find by a
preponderance that intentional discrimination occurred.” (Kelly, at p. 1098, citing
Aguilar, at pp. 850-851; Guz, at p. 357.) In determining whether these burdens were met,
the court must view the evidence in the light most favorable to the plaintiff, as the
nonmoving party, drawing all reasonable inferences in the plaintiff’s favor. (Aguilar, at
p. 856; Kelly, at p. 1098.)
          The three-stage McDonnell Douglas test applies to FEHA retaliation claims as
well. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1108-1109
(Loggins).) Thus, even without challenging the plaintiff’s prima facie case, an employer
moving for summary judgment can satisfy its burden by producing evidence showing a
legitimate nonretaliatory reason for the alleged adverse employment action. (Ibid.) Once
this showing is made, “the burden shifts . . . to the employee to provide ‘substantial
responsive evidence’ that the employer’s proffered reasons were untrue or pretextual.”
(Ibid.)
          3.    The Undisputed Evidence Establishes Plaintiff Was Denied a Promotion
                Because There Were Other More Qualified Candidates
          Like the trial court, we conclude the Department’s evidence established a plausible
nondiscriminatory and nonretaliatory reason for the decision not to promote Plaintiff.
With respect to the three promotion opportunities at issue, the Department identified the
competing candidates’ relative band rankings and qualifications as the reason they were
chosen for promotions over Plaintiff. As for the September 2010 and May 2011


                                              13
Supervising Psychiatric Social Worker promotions, the Department’s evidence showed
that the selected candidates placed in Band 1 and Band 2, while Plaintiff’s examination
score placed him in Band 3. The evidence also showed that Wong, who received the
September 2010 promotion, had been working in a more demanding program with
chronically ill patients, which required her to perform at a higher level than other
candidates like Plaintiff. As for Hubbell, who placed in Band 1 and received the May
2011 promotion, the evidence showed she followed the hiring supervisors’ directions to
bring certain paperwork to her interview and her answers to the supervisors’ standard
questions demonstrated, in the supervisors’ view, more enthusiasm for taking on a
leadership role than did Plaintiff’s responses. Finally, with respect to the September
2011 Mental Health Clinical Supervisor position, the Department’s evidence showed that
Lujan was selected because she, unlike Plaintiff, already had supervisory experience and
that her experience with inmate discharge and release planning satisfied an essential
requirement for the position. This evidence, which Plaintiff did not dispute with
admissible evidence in opposing summary judgment, would permit a trier of fact to find,
more likely than not, that these candidates were chosen for promotions over Plaintiff
because of their superior qualifications—not because of Plaintiff’s race or national origin,
or any retaliatory animus harbored by the Department. (See Guz, supra, 24 Cal.4th at
p. 357; Scotch, supra, 173 Cal.App.4th at pp. 1004-1006; Loggins, supra,
151 Cal.App.4th at pp. 1108-1109.)
       Once the Department established nondiscriminatory and nonretaliatory reasons for
its decisions, the burden shifted to Plaintiff to present evidence that the Department’s
stated reasons were pretextual and that the Department acted with discriminatory or
retaliatory animus. To meet this burden, Plaintiff relied exclusively upon a collection of
emails that purported to show hiring managers manipulated the promotion process to
“reach” favored candidates in lower bands despite the apparent availability of candidates
in higher bands. The trial court excluded the emails because Plaintiff failed to
authenticate them, and the court concluded Plaintiff had presented no other evidence that
would permit the trier of fact to find Plaintiff was not promoted because of race, national


                                             14
origin or retaliatory animus. We turn to the trial court’s decision to exclude the emails
now.
       4.     The Trial Court Acted Within Its Discretion to Exclude the Unauthenticated
              Emails from Evidence
       We review the trial court’s evidentiary rulings on summary judgment for abuse of
discretion. (Park v. First American Title Co. (2011) 201 Cal.App.4th 1418, 1427; Carnes
v. Superior Court (2005) 126 Cal.App.4th 688, 694 [“Although it is often said that an
appellate court reviews a summary judgment motion ‘de novo,’ the weight of authority
holds that an appellate court reviews a court’s final rulings on evidentiary objections by
applying an abuse of discretion standard.”].) In applying this standard, we will set aside
the trial court’s decision only if the appellant can show, on the record presented, “no
judge could reasonably have made the order that he did.” (Newbauer v. Newbauer (1949)
95 Cal.App.2d 36, 40; DiCola v. White Brothers Performance Products, Inc. (2008)
158 Cal.App.4th 666, 679 (DiCola).) Thus, the appellant’s showing will be “insufficient
if it presents a state of facts which simply affords an opportunity for a difference of
opinion.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118; DiCola,
at pp. 679-680.)
       While it may be that “in some legal systems it is assumed that documents are what
they purport to be, unless shown to be otherwise,” “[w]ith us it is the other way around.”
(Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525 (Continental Baking).)
“Generally speaking, documents must be authenticated in some fashion before they are
admissible in evidence.” (Ibid.; Evid. Code, § 1401, subd. (a) [“Authentication of a
writing is required before it may be received in evidence.”].) To make the requisite
preliminary showing of authenticity, a document’s proponent must introduce sufficient
evidence to sustain a finding that the document is what the proponent claims it to be.
(Evid. Code, § 1400, subd. (a).)




                                             15
       Continental Baking not only supports the trial court’s exclusion of the proffered
emails, but our Supreme Court’s holding in that case would have required reversal had
the trial court ruled otherwise. Continental Baking involved a dispute between the
owners of two land parcels in which the trial court permitted one owner, Continental, to
introduce three documents to establish the existence of an easement over the property of
the other owner, Katz. (See Continental Baking, supra, 68 Cal.2d at p. 520, 523-524.)
Katz objected to the documents’ admission on the ground that Continental failed to lay a
sufficient foundation for authentication. (Id. at p. 524.) Continental’s attorney responded
that, “ ‘insofar as the authentication is concerned, I can have a witness testify,’ ” and he
represented that he “ ‘got [the documents] from the general counsel of [Continental], so
they [were] obviously business records under the liberal interpretation.’ ” (Id. at pp. 524-
525.) The trial court admitted the documents into evidence; the Supreme Court reversed.
       After citing the rule requiring authentication before documents are admitted into
evidence, the Supreme Court commented on the trial court’s error: “In the case at bar the
court simply took counsel’s word for it that he could have a witness lay the necessary
foundation and that he, the attorney, had obtained the documents from the general
counsel of Continental so that they were ‘business records under the liberal
interpretation.’ [¶] While we have just as much faith in counsel’s sincerity as the trial
court evidently had, such faith does not take the place of testimony or judicial notice. [¶]
The reception of the documents in evidence was therefore erroneous.” (Continental
Baking, supra, 68 Cal.2d at p. 526.)
       As in Continental Baking, Plaintiff in the instant case failed to offer any
foundational evidence to establish the authenticity of the purported emails attached to his
declaration. Plaintiff’s declaration says nothing about where the emails came from or
how Plaintiff acquired them. Nor does Plaintiff offer any information to establish his
personal knowledge about the source of the emails, their authors, their genuineness, or
whether the events discussed in the emails actually occurred. Without evidence sufficient
to show the emails were what Plaintiff claimed them to be, it would have been error for



                                             16
the trial court to admit the emails in evidence. (Continental Baking, supra, 68 Cal.2d at
p. 526.) The court properly excluded them as such.
       On appeal, Plaintiff does not dispute that he failed to properly authenticate the
emails when he introduced them in the trial court. He nevertheless argues the trial court
should not have granted summary judgment because it was reasonable to infer that
Plaintiff could have “cured” the deficiency with a brief continuance. We disagree.
       Code of Civil Procedure section 437c, subdivision (h) provides: “If it appears
from the affidavits submitted in opposition to a motion for summary judgment or
summary adjudication or both 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.” (Italics added.) As the italicized clause makes plain, to
invoke subdivision (h) the party opposing summary judgment must, at a minimum,
request a continuance and offer some justification as to why the relevant evidence could
not have been produced. The summary judgment hearing transcript demonstrates
Plaintiff did neither. We cannot say the trial court erred by failing to grant relief that
Plaintiff never requested. (See, e.g., Cryoport Systems v. CNA Ins. Cos. (2007)
149 Cal.App.4th 627, 633; Davis v. Nadrich (2009) 174 Cal.App.4th 1, 8.)
       Having ruled the emails could not be admitted as evidence to demonstrate pretext,
the trial court concluded Plaintiff had offered no evidence to show the Department’s
proffered reasons for its promotion decisions were pretextual or that the reason he was
not promoted was because of race, national origin, or retaliatory animus. We reach the
same conclusion on this record.6



6
        Insofar as Plaintiff maintains the May 2011 lapse in his eligibility for the
Supervising Psychiatric Social Worker position constituted an adverse employment
action, we agree with the trial court that “Plaintiff present[ed] no evidence that the delay
[in the Department processing his application to renew eligibility] was due to Plaintiff’s
race or national origin.”


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                                       DISPOSITION
       The judgment is affirmed. The County of Los Angeles Department of Mental
Health is entitled to its costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  KITCHING, J.
We concur:




                      EDMON, P. J.




                      EGERTON, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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