Filed 2/10/15 Anderson v. Los Angeles Unified School Dist. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



RONALD BLAGDEN ANDERSON, SR.,                                        B254806

         Plaintiff and Appellant,                                    (Los Angeles County Super. Ct.
                                                                      No. BC490525)
         v.

LOS ANGELES UNIFIED SCHOOL
DISTRICT,

         Defendant and Respondent.




         APPEAL from the judgment of the Superior Court of Los Angeles, Ernest M.
Hiroshige, Judge. Affirmed.
         Ronald Blagden Anderson, Sr., pro. per., for Plaintiff and Appellant.
         Marcos F. Hernandez, Associate General Counsel I, Alexander Molina, Chief
Labor and Employment Counsel, for Defendant and Respondent.
       Plaintiff and appellant Ronald Blagden Anderson, Sr., appeals from a judgment
after an order granting a summary judgment motion. Anderson filed his operative
complaint against defendant and respondent Los Angeles Unified School District
(LAUSD) alleging discrimination based on age, race, and gender, in violation of the
California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). The
trial court sustained a demurrer to the causes of action for race and gender discrimination,
because Anderson failed to exhaust administrative remedies with the California
Department of Fair Employment and Housing (DFEH). The court then granted
LAUSD’s motion for summary judgment on the remaining cause of action for age
discrimination. Anderson was unable to establish a prima facie case of discrimination
and LAUSD offered a legitimate nondiscriminatory reason for the adverse employment
action. Anderson did not present evidence that the reasons stated for the adverse
employment action were pretextual.
       On appeal, Anderson contends the trial court erred in sustaining the demurrer to
his operative complaint as to the causes of action for race and gender discrimination.
Anderson further contends the court erred in granting summary judgment as to his age
discrimination claim. Anderson also contends the trial court erred in imposing $600 in
discovery sanctions, denying his “Ex Parte Application for an Order Shortening Time to
File a Second Amended Complaint and Extend Time to Oppose Defendant’s Motion for
Summary Judgment,” and striking his three statements to disqualify Judge Ernest M.
Hiroshige. We affirm the judgment.


                               STATEMENT OF FACTS


       There are no material disputes about the following facts. In 2009, LAUSD’s
Governing Board authorized a reduction in force of over 3,000 probationary certified
employees. The Board also initially authorized the layoff of approximately 2,000
permanent certified employees. However, all of the layoff notices for the permanent
certified employees were later rescinded prior to becoming effective.

                                             2
       LAUSD had concerns that such a large loss of classroom teachers would
negatively affect the stability of the schools and wanted to ensure the best possible
continuity of instruction. Many substitutes only possess “emergency 30 day substitute
teaching permits,” which prohibit them from providing services in any one classroom for
more than 30 days in a school year. Utilizing these day-to-day substitutes serving under
emergency permits would lead to constant teacher turnover in the classrooms. However,
the recently laid-off probationary certified employees possess a California credential
which authorized them to teach long-term substitute assignments of more than 30 days.
       The California Legislature determined that laid-off certified employees shall be
offered priority for substitute assignments during the absence of any other employee.
(See Ed. Code, §§ 44956, subd. (a)(5) & 44957, subd. (d).) Education Code section
44959.5 permits a school district with an average daily attendance in excess of 400,000 to
negotiate reemployment and substitute priority rights for laid-off probationary certified
employees. LAUSD and United Teachers Los Angeles (UTLA) negotiated substitute
priority rights for laid-off probationary certified employees pursuant to Education Code
section 44959.5. LAUSD and UTLA agreed to grant probationary certified employees
laid-off on June 30, 2009, priority for substitute assignments. This agreement granted
laid-off LAUSD probationary certified employees rights consistent with all other laid-off
certified employees.
       Anderson provided service as a substitute teacher for LAUSD for more than 14
years. He was a member of UTLA, therefore subject to the provisions of LAUSD and
UTLA’s agreement. At the time of employment, Anderson only possessed an
“emergency 30 day substitute teaching permit.” Anderson objected to the granting of
substitute priority for certified employees laid-off on June 30, 2009. During his
deposition, Anderson conceded that the only evidence he had of age discrimination was
the agreement between LAUSD and UTLA, which is memorialized in a letter dated July
2, 2009. The letter stated that teachers who were laid-off June 30, 2009, and who have
been processed for substitute work, will be given priority for day-to-day substitute
assignments. “This one time non precedent setting agreement is made to address unique

                                             3
issues related to the reduction in force of UTLA bargaining unit members and will expire
on June 30, 2010 unless renegotiated.” Anderson admitted that he did not know why
LAUSD and UTLA entered into the agreement. He also admitted that prior to filing this
lawsuit, he did not know anything about the laid-off employees that had been granted
priority substitute rights, but had guesses regarding their races and genders. Anderson
conceded that at the time he filed the lawsuit, he had no information regarding the ages of
the laid-off employees. He claimed to have knowledge of unknown national studies
regarding the races and genders of teachers, but does not make any claims with regard to
age. Lastly, Anderson admitted that LAUSD probably wanted to retain the laid-off
employees because “most employers . . . don’t like to lose employees that you—you
know, just the hiring process, you know, it’s not cost effective to go out and find
employees and hire them. And if you got employees, you should retain ‘em.” Thousands
of permanent certified employees were laid-off in LAUSD in 2010, 2011, and 2012 due
to budgetary shortfalls, and each was provided with the same statutory substitute priority
rights.
          By letter dated March 12, 2012, Anderson was informed that he was dismissed
from his substitute status with LAUSD.


                                PROCEDURAL HISTORY


The Verified Complaint


          On August 20, 2012, Anderson filed a verified complaint against LAUSD alleging
age, race and gender discrimination, in violation of FEHA. LAUSD demurred to the
causes of action for race and gender discrimination for failure to exhaust administrative
remedies with the DFEH. On January 22, 2013, the trial court sustained the demurrer
with leave to amend for failure to exhaust administrative remedies. The court granted
LAUSD’s unopposed request for judicial notice of Anderson’s DFEH complaint dated
August 24, 2010, and Equal Employment Opportunity Commission (EEOC) charge dated

                                             4
August 25, 2010.


The Verified First Amended Complaint


       On January 30, 2013, Anderson filed a verified first amended complaint alleging
the same causes of action in his original complaint. Anderson, a Black male who is over
the age of 40, began his employment for LAUSD in December 1997. Anderson alleged
that LAUSD discriminated against him based on his age, race, and gender, in that
available substitute teaching assignments were wrongfully and unlawfully made available
to newly-hired younger, white female substitute teachers who were laid-off on June 30,
2009. Those substitute teachers had less experience at substitute teaching and less
seniority than Anderson. As a direct and proximate result, Anderson suffered a
substantial loss of income based upon this unlawful employment practice implemented
by LAUSD. Anderson contended he “can establish a prima facie case of employment
discrimination based on disparate treatment and disparate impact using statistical
evidence in the possession, custody and control of [LAUSD].”


LAUSD’s Demurrer


       On February 6, 2013, LAUSD filed a demurrer to Anderson’s race and gender
discrimination causes of action in the amended complaint. LAUSD noted that
Anderson’s amended complaint does not include a DFEH complaint of discrimination or
a DFEH right to sue notice. Rather, it contains only a DFEH notice of case closure.
LAUSD argued Anderson made no effort to correct the deficiencies in the original
complaint. Anderson did not exhaust his administrative remedies by filing a complaint of
discrimination with the DFEH alleging race or gender discrimination. Therefore,
Anderson’s race and gender discrimination causes of action are administratively barred
and the trial court does not have jurisdiction over these claims.
       In support of the demurrer, LAUSD again filed a request for judicial notice of

                                              5
Anderson’s complaint of discrimination to DFEH dated August 24, 2010, and Anderson’s
charge of discrimination to EEOC dated August 25, 2010. Anderson’s DFEH complaint
and EEOC charge only allege discrimination on the basis of age.


Anderson’s Opposition


         On February 21, 2013, Anderson filed an opposition to the demurrer and requested
leave to amend. He contended that he is not precluded from bringing a lawsuit for race
and gender discrimination in violation of FEHA, even though he committed a “technical
and amendable defect in failing to check [a] box on the DFEH administrative charge
form.”


LAUSD’s Reply


         On April 5, 2013, LAUSD filed a reply in support of the demurrer to the amended
complaint. LAUSD contended that although Anderson alleges discrimination based on
age, race, and gender, he did not amend his DFEH complaint to include race or gender
discrimination, nor did he file a new complaint based on his race or gender. Moreover,
Anderson has failed to address the deficiencies of the original complaint even after being
afforded the opportunity to amend. As a result, the defects in his pleadings cannot be
cured by amendment. Anderson provides no legal authority as to whether his allegation
of age discrimination can also encompass his allegation of race and gender
discrimination. Since Anderson’s allegations of race and gender discrimination have not
been exhausted through the appropriate administrative remedy at law, the demurrer must
be granted without leave to amend.


Trial Court’s Ruling on the Demurrer


         On April 16, 2013, the trial court sustained LAUSD’s demurrer to the causes of

                                             6
action for race and gender discrimination without leave to amend. The court reasoned
that Anderson failed to exhaust his administrative remedies as to the race and gender
discrimination claims. The court noted that the issue is not just that Anderson failed to
check the box for race or gender discrimination on his DFEH complaint, rather the
critical factor is that none of the allegations in the DFEH complaint would have alerted
the DFEH to investigate a possible race or gender discrimination claim. The court also
granted LAUSD’s unopposed request for judicial notice of Anderson’s DFEH complaint
dated August 24, 2010, and EEOC charge dated August 25, 2010.


LAUSD’s Motion for Summary Judgment


       On August 29, 2013, LAUSD filed a motion for summary judgment based on the
remaining cause of action for age discrimination. LAUSD argued that Anderson cannot
satisfy his prima facie burden to prove discrimination based on age. There is no evidence
that granting recently laid-off certified employees substitute priority was due to any
alleged age discrimination. There is no evidence that age was considered in the decision
to grant recently laid-off certified employees substitute priority. Anderson has not
proffered any other circumstance to suggest discriminatory motive. And even assuming
Anderson was able to establish his prima facie case, LAUSD met its burden of producing
legitimate, nondiscriminatory business reasons for its actions. Therefore, Anderson must
come forward with specific and substantial evidence of pretext to avoid summary
judgment. Anderson’s claims are based on conjecture and speculation, which is not
sufficient to defeat summary judgment.
       LAUSD pointed out that one of Anderson’s difficulties in this case is that he
misinterprets the Education Code. He testified that he believes the laid-off employees are
only entitled to reemployment rights, but not substitute rights. However, Anderson’s
claim is contradicted by the Education Code sections 44956 and 44957.




                                             7
Anderson’s Ex Parte Application


       On September 17, 2013, Anderson filed an ex parte application for an order
shortening time to file a second amended complaint and extend time to oppose the motion
for summary judgment based on outstanding discovery.1 Anderson contended the
outstanding discovery will affect the outcome of these proceedings and that this
discovery is essential to oppose the motion for summary judgment. The trial court took
the ex parte application under submission and ordered LAUSD to file and serve an
opposition no later than September 19, 2013. No reply or oral argument was ordered.
       In its opposition, LAUSD contended that Anderson failed to provide the notice
required by California Rules of Court, rule 3.1204. Anderson contacted counsel for
LAUSD twice to inform counsel that he would be filing an ex parte application with the
court, but refused to share the substance of the request. Anderson sent a facsimile to
counsel for LAUSD containing only the caption page of the application and did not set
forth the basis for the application. In addressing Anderson’s claim of outstanding
discovery, LAUSD stated that it responded to Anderson’s 11 written discovery requests
and Anderson had missed the deadline to move to compel on any of the responses. As
such, there is no outstanding discovery. In any event, Anderson has not provided any
explanation as to why the purported discovery is relevant or necessary, why he waited
until after the filing of the motion for summary judgment to raise this issue, or why this
information is necessary to oppose a motion for summary judgment.
       On September 20, 2013, the court found the ex parte application “defective in that
the Declaration of the Plaintiff Anderson is defective because: there is no statement that
any of the ‘facts’ presented are based on personal knowledge or otherwise admissible;
there is no representation that it is submitted under the laws of California re penalty of
perjury; and is unsigned. Given these defects the declaration by Anderson is stricken.

       1
       LAUSD properly served and filed its motion for summary judgment on
Anderson on August 29, 2013, providing the requisite time under Code of Civil
Procedure section 437c, subdivision (b)(2), to file and serve an opposition.
                                              8
Therefore under [Civil Code of Procedure] 437c[ subdivision] (h) given there is now no
declaration, compliance with the statutory requests for continuance for further discovery
is denied.” As additional support for its ruling, the court adopted the papers and
opposition papers submitted by LAUSD.


Anderson’s Opposition to Summary Judgment


       On October 28, 2013, Anderson filed his opposition to LAUSD’s motion for
summary judgment. However, Anderson failed to address the merits of the motion and
argue there was a triable issue of material fact. Rather, Anderson argued that the court
erred in denying his ex parte application because LAUSD’s discovery responses to
Anderson’s latest request would be vital in opposing summary judgment.


LAUSD’s Reply


       In its reply on November 7, 2013, LAUSD contended the trial court cannot
consider his opposition because he failed to sign the opposition, his supporting
declaration, and the verification attached, in violation of Code of Civil Procedure section
128.7. Moreover, Anderson’s opposition is in the nature of an untimely motion for
reconsideration of the denial of his ex parte application for an order to postpone the
hearing on the motion for summary judgment, or an untimely motion for reconsideration
of the denial of his motion to compel further discovery responses. By failing to file an
opposition in compliance with the rule 3.1350 of the California Rules of Court, LAUSD’s
motion for summary judgment stands unopposed. Anderson had essentially conceded the
merits of the motion and there is no dispute as to any material fact. Anderson’s failure to
file a separate statement constitutes a sufficient ground for granting LAUSD’s motion
(Code Civ. Proc., § 437c, subd. (b)(3)). Lastly, the evidence set forth in LAUSD’s
moving papers demonstrate that there is no triable issue as to any material fact and that
LAUSD is entitled to a judgment as a matter of law.

                                             9
Trial Court’s Ruling on the Motion for Summary Judgment


       On November 19, 2013, LAUSD’s motion for summary judgment was granted.
Anderson did not appear for the hearing on the motion. In its ruling, the court reasoned
that Anderson failed to establish a prima case of discrimination and LAUSD had set forth
a legitimate reason for the adverse employment action against Anderson. Anderson has
not submitted any evidence in his opposition to establish pretext. He has also not
submitted an opposing separate statement, which would be sufficient grounds for
granting the motion. Accordingly, Anderson has not met his burden in opposition of
showing the existence of a triable issue of fact. Insofar as Anderson challenges the trial
court’s prior ruling on his ex parte application for an order to postpone the motion for
summary judgment hearing, or his motion to compel further discovery responses, the
opposition would constitute an untimely motion for reconsideration.
       Judgment was entered on January 13, 2014, in favor of LAUSD, and notice of
entry of judgment was filed on January 24, 2014. On March 5, 2014, Anderson filed a
notice of appeal.


                                      DISCUSSION


Demurrer


       Anderson contends the trial court erred in sustaining LAUSD’S demurrer without
leave to amend as to his causes of action for race and gender discrimination, in violation
of FEHA. We disagree.


       Standard of Review


       “A general demurrer challenges the legal sufficiency of the complaint on the

                                            10
ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., §
430.10, subd. (e); Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39,
42-43.) In reviewing a general demurrer, the facts pleaded are assumed to be true and the
only issue is whether they are legally sufficient to state a cause of action. ‘[W]e are
guided by long-settled rules. “We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.” [Citation.]
Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is . . . sustained without leave to
amend, we decide whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we reverse; if not,
there has been no abuse of discretion and we affirm. [Citations.]’ (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) Whether a complaint states facts sufficient to constitute a
cause of action is a question of law. (Hernandez v. City of Pomona (1996) 49
Cal.App.4th 1492, 1497.)” (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220
Cal.App.4th 635, 644-645.)


       Exhaustion of Administrative Remedies


       Government Code section 12960 provides that an employee bringing a FEHA
claim must exhaust an administrative remedy by filing an administrative complaint with
the DFEH within one year after the alleged unlawful action occurred. (Gov. Code, §
12960, subd. (d); see Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th
1402, 1412; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607,
1613 (Okoli).) “To exhaust his or her administrative remedies as to a particular act made
unlawful by the [FEHA], the claimant must specify that act in the administrative
complaint, even if the [administrative] complaint does specify other cognizable wrongful
acts.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724
(Martin).) In the context of FEHA, the failure to exhaust the administrative remedy “‘“is

                                              11
a jurisdictional, not a procedural defect” . . . .’” (Okoli, supra, at p. 1613.) It may be
raised to challenge plaintiff’s cause of action at any stage of a civil proceeding. (See,
e.g., Okoli, supra, 1607 [on appeal following trial]; Sandhu v. Lockheed Missiles & Space
Co. (1994) 26 Cal.App.4th 26 Cal.App.4th 846 (Sandhu) [demurrer]; and Rodriguez v.
Airborne Express (9th Cir. 2001) 265 F.3d 890 [summary judgment].)
       In this case, Anderson filed one form complaint with the DFEH on August 24,
2010. On the form, Anderson checked the box for age discrimination.2 Anderson
alleged he was denied substitute teacher assignments from July 2009 to November 30,
2009 because of his age (71). Anderson based his beliefs on several instances where
LAUSD’s “staff and officials made comments demonstrating their preference for younger
substitute teachers.” Such a preference had been implemented into LAUSD’s policy by
requiring that teachers laid-off in 2009, all of whom are younger, be called in for
substitute assignments over other teachers, most of whom are over the age of 40.
Although there had been several complaints about the implemented policy, LAUSD
continued to adhere to the discriminatory policy resulting in him earning substantially
less in 2009 than in 2008. Anderson’s narrative did not mention any form of racial or
gender discrimination, and instead discussed his belief that he was discriminated against
based on age.
       Anderson acknowledges he did not identify race or gender discrimination on the
DFEH complaint form, but contends that he is not precluded from bringing those claims
because of a “technical and amendable defect” by failing to check a box on an
administrative complaint. Anderson seeks to come within an exception permitting
recovery on a claim that was “‘like or reasonably related to’” the allegations in the
administrative complaint. (Okoli, supra, 36 Cal.App.4th at p. 1616.) Under this
exception, the exhaustion requirement is satisfied if the claims are sufficiently related
such that the administrative investigation would “necessarily uncover” the later claims in

       2Anderson also checked the box for sexual orientation discrimination. However,
he does not explain any alleged discrimination based on sexual orientation on the form,
nor does he address it in any of his complaints or on appeal.
                                              12
an investigation of the charged incident. (Id. at p. 1615; see Nazir v. United Airlines, Inc.
(2009) 178 Cal.App.4th 243, 266-269; Baker v. Children’s Hospital Medical Center
(1989) 209 Cal.App.3d 1057, 1065.) However, this exception applies only if this
relationship requirement is satisfied. “‘[W]hen the difference between the charge and the
complaint is a matter of adding an entirely new basis for the alleged discrimination,’” the
court has no jurisdiction to consider the newly alleged claim. (Okoli, supra, at p. 1615.)
          Anderson’s reliance on Sandhu to support his contention is misplaced. In Sandhu,
supra, 26 Cal.App.4th at p. 849, the plaintiff alleged in his administrative complaint that
he was treated differently from other, “‘non-Asian’” employees, and checked only “race”
as the cause of discrimination. In his superior court complaint, the plaintiff alleged racial
discrimination and described himself as an “‘East Indian.’” (Ibid.) However, the trial
court sustained a demurrer based on evidence that a person from India is “‘by definition .
. . [a] Caucasian’” and thus cannot recover for race discrimination. (Id. at p. 850.) In his
amended complaint, the plaintiff alleged he was “‘an East Indian male whose national
origin is Punjab, India . . . .’” and alleged discrimination based on this national origin.
(Ibid.) The court then granted a demurrer because the plaintiff identified racial
discrimination and not national origin discrimination in his administrative complaint.
(Ibid.)
          The Sandhu court reversed. After a lengthy discussion on the analytical
difficulties in differentiating between race and national origin, the court concluded:
“Discriminators . . . may indeed be ‘poor anthropologists’ [citation]; any scientific
definition of race has little to do with the realities of racial discrimination. Sandhu
alleged both in his administrative charge and in his complaints that he was treated
differently from other, ‘non-Asian’ Lockheed employees. Like other plaintiffs whose
ancestry, descent and national origin are all intimately related, [citations] Sandhu may not
and need not be aware of the precise basis of Lockheed’s disparate treatment of him:
whether it was his accent, his skin color, his ancestry or his nationality. . . . Sandhu’s
allegation that he was subject to a discriminatory animus based on his membership in a
group which is perceived as distinct when measured against other Lockheed employees,

                                              13
and which is not based on his birthplace alone, is sufficient to make out a cognizable
claim for racial discrimination under FEHA.” (Sandhu, supra, 26 Cal.App.4th at p. 857.)
       This case is different. Unlike the categories of race and national origin, there are
substantial distinctions between the categories of age, race, and gender. To permit
Anderson to pursue causes of action for race and gender discrimination would undermine
vital policy interests embodied in FEHA, i.e., the resolution of disputes and elimination
of unlawful employment practices by conciliation. (Gov. Code, §§ 12930, 12935,
12963.7; Gelb and Frankfurt, California’s Fair Employment and Housing Act: A Viable
State Remedy for Employment Discrimination (1983) 34 Hastings L.J. 1055, 1061-1062.)
Anderson charged specific conduct in his administrative complaint involving age
discrimination. There is no evidence that he merely mistakenly checked the wrong box.
None of the allegations in the DFEH complaint would have alerted the DFEH to
investigate a possible race or gender discrimination claim. (See Hobson v. Raychem
Corp. (1999) 73 Cal.App.4th 614, 631 [“Nothing in the charge could thus have
reasonably been expected to lead to an investigation of whether the colitis was
accompanied by or was merely a symptom of some other disability”], disapproved on
other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019,
1031, fn. 6; see also Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123 [DFEH
complaint for gender discrimination did not exhaust administrative remedies on claim for
age harassment].) Anderson has not shown how he could remedy this defect in his
opposition to the demurrer. Accordingly, the court properly sustained the demurrer to the
causes of action for race and gender discrimination.


Summary Judgment


       Anderson contends the trial court erred in granting summary judgment because
triable issues of material fact exist as to age discrimination, in violation of FEHA. We
find no error in the trial court’s rulings. As explained below, LAUSD’s showing was
sufficient to shift the burden to Anderson to raise a triable issue, which he failed to do.

                                              14
        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. [Citation.]” (Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Thus, we apply “‘the same
three-step process required of the trial court.’” (Bostrom v. County of San Bernardino
(1995) 35 Cal.App.4th 1654, 1662.) The three steps are (1) identifying the issues framed
by the complaint, (2) determining whether the moving party has made an adequate
showing that negates the opponent’s claim, and (3) determining whether the opposing
party has raised a triable issue of fact. (Ibid.)
        Generally, “the party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact; if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.) Furthermore, in moving for summary judgment, “all
that the defendant need do is show that the plaintiff cannot establish at least one element
of the cause of action—for example, that the plaintiff cannot prove element X.” (Id. at p.
853.)
        Although we independently assess the grant of summary judgment (Lunardi v.
Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819), our inquiry is subject to
several constraints. Under the summary judgment statute, we examine the evidence
submitted in connection with the summary judgment motion, with the exception of
evidence to which objections have been appropriately sustained. (Mamou v. Trendwest
Resorts, Inc. (2008) 165 Cal.App.4th 686, 711; Code Civ. Proc., § 437c, subd. (c).)
Furthermore, our review is governed by a fundamental principle of appellate procedure,
namely, that “‘[a] judgment or order of the lower court is presumed correct,’” and thus,

                                               15
“‘error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557,
564, italics omitted, quoting 3 Witkin, Cal. Procedure (1954) Appeal, § 79, pp. 2238-
2239.)
         Under this principle, Anderson bears the burden of establishing error on appeal,
even though LAUSD had the burden of proving their right to summary judgment before
the trial court. (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.)
For this reason, our review is limited to contentions adequately raised in Anderson’s
briefs. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126.)
In addition, to overcome the presumption of correctness, Anderson is required to provide
a record sufficient to show error. (Lincoln Fountain Villas Homeowners Assn. v. State
Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1003, fn. 1.)


         Age Discrimination


         Under FEHA, discrimination claims are ordinarily evaluated in light of a three-
stage burden shifting test. (Guz, supra, 24 Cal.4th at p. 354.) Under the test, had
Anderson reached trial on his claim, he “would . . . have borne the initial burden of
proving unlawful discrimination, under well-settled rules of order of proof: ‘[T]he
employee must first establish a prima facie [showing] of wrongful discrimination. If she
does so, the burden shifts to the employer to show a lawful reason for its action. Then the
employee has the burden of proving the proffered justification is mere pretext.’
[Citations.]” (Martin, supra, 29 Cal.App.4th at p. 1730.) However, as LAUSD’s
summary judgment motion offered a nondiscriminatory rationale for its conduct, we need
not address the existence of a prima facie case. (Guz, supra, at p. 357.) As we explain
below, because LAUSD’s showing shifted the burden on summary judgment to
Anderson, our focus is on whether Anderson identified sufficient evidence that the
proffered rationale was a pretext for discrimination.
         To establish that LAUSD had a legitimate, nondiscriminatory basis for its conduct,
LAUSD relied on a declarations of Justo Avila, Deputy Chief Human Resources Officer

                                             16
at LAUSD, Marjorie Josaphat, Director of Human Resources at LAUSD, and Marcos F.
Hernandez, counsel for LAUSD. LAUSD attached the July 2, 2009 agreement between
LAUSD and UTLA, Board reports addressing the reduction in force of permanent
certified employees in 2010, 2011, and 2012, and Anderson’s deposition transcript dated
June 4, 2013. The evidence established that LAUSD had concerns that such a large loss
of classroom teachers would negatively affect the stability of the schools and wanted to
ensure continuity of instruction as best as possible. Utilizing day-to-day substitutes
serving under emergency permits would lead to constant teacher turnover in the
classrooms. The laid-off teachers who possess a California credential authorizing them
to teach long-term substitute assignments of more than 30 days would adequately address
LAUSD’s concerns over continuity of instruction. LAUSD and UTLA agreed to grant
laid-off probationary employees priority for substitute assignments pursuant to Education
Code section 44959.5. LAUSD noted that thousands of permanent certified employees
were laid-off in LAUSD in 2010, 2011, and 2012, and each was provided with the same
statutory substitute priority rights.
       Based on the evidence, LAUSD has set forth a legitimate reason for the adverse
employment action against Anderson. Anderson failed to object to any of LAUSD’s
evidence submitted in its motion for summary judgment. Accordingly, LAUSD has met
its burden of showing that no triable issue exists on Anderson’s age discrimination cause
of action.
       The burden on summary judgment therefore shifted to Anderson to demonstrate
that the actual motive of LAUSD was discriminatory. (Guz, supra, 24 Cal.4th at p. 361.)
To carry this burden, Anderson could not rely on the allegations in his amended
complaint, insofar as LAUSD’s showing disputed them. (Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 162; Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 639.)
Rather, Anderson was required to offer “substantial evidence that the employer’s stated
nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the
employer acted with a discriminatory animus, or a combination of the two, such that a
reasonable trier of fact could conclude the employer engaged in intentional

                                             17
discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1005.) “For this purpose, speculation cannot be regarded as substantial responsive
evidence. [Citation.]” (Martin, supra, 29 Cal.App.4th at p. 1735.)
       In view of the record before us, we agree with the trial court that Anderson failed
to carry his burden. In opposition, Anderson had not submitted any evidence to establish
pretext. Anderson does not attack the merit of LAUSD’s motion, rather he argues that it
was error to deny his ex parte application to extend the time to file an opposition to the
motion for summary judgment because of outstanding discovery responses. Anderson
then fails to identify how this alleged outstanding discovery responses would overcome
summary judgment. By failing to provide evidence in opposition to LAUSD’s motion for
summary judgment, Anderson’s opposition is inadequate under rule 3.1350(e) of the
California Rules of Court. Anderson also did not submit an opposing separate statement,
which would be a sufficient ground for granting the motion. (Code of Civ. Proc., § 437c,
subd. (b)(3).) Ignoring the technical deficiencies, Anderson conceded in his deposition
that the only evidence he has of age discrimination is the LAUSD and UTLA agreement
memorialized in a letter dated July 2, 2009. He freely admitted that he did not know why
LAUSD and UTLA entered into the agreement. Anderson also admitted that prior to
filing the lawsuit he did not know anything about the laid-off employees who had been
granted priority substitute rights, including their ages. Under these circumstances we
conclude, as a matter of law, that Anderson has failed to point to evidence raising a
triable issue that LAUSD’s proffered reasons for its actions were a pretext for prohibited
age discrimination. LAUSD is therefore entitled to summary judgment on this claim.


Ex Parte Application


       Anderson contends the trial court erred in denying any oral argument in reply to
LAUSD’s opposition to his ex parte application. We disagree.
       “The decision to listen to oral argument on a motion is within the discretion of the
court, and the court may decide a motion solely on the basis of the supporting affidavits.”

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(In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 784; Muller v. Muller (1956) 141
Cal.App.2d 722, 731.)” (Wilburn v. Oakland Hospital (1989) 213 Cal.App.3d 1107,
1111.) Moreover, the fact that the trial court did not order a reply or oral argument, does
not preclude Anderson from requesting to file a reply or oral argument. Anderson made
no such request to the trial court.
       Based on the appellate record, the denial of the ex parte application was not an
abuse of discretion. The trial court struck Anderson’s declaration in support of the
application because it did not present facts upon which he had personal knowledge or was
otherwise admissible. (Cal. Rule of Court, rule 3.1201(2) & (3).) There were defects in
the declaration because there was no representation that it was submitted under penalty of
perjury and it was unsigned. (Code of Civ. Proc., § 2015.5.) On appeal, Anderson fails
to carry his burden of demonstrating the court abused its discretion without providing an
adequate record of the lower court’s proceedings. Anderson did not include the
reporter’s transcript of the September 17, 2013 ex parte application hearing, which is at
issue. Anderson only provided this court with the minute order of that hearing. No abuse
of discretion has been shown.


Discovery Sanctions


       Anderson contends that the trial court abused its discretion in ordering him to pay
$600 in monetary sanctions to LAUSD. We disagree.
       On February 6, 2013, LAUSD filed a motion to compel Anderson to provide
discovery responses and also asked the court to impose monetary sanctions. On February
7, 2013, LAUSD received a letter from Anderson to which he attached purported
responses to Form Interrogatories-Employment Law and in which Anderson stated he
“will not respond to Defendant’s First Set of Special interrogatories.” Anderson also
made other claims regarding his refusal to respond to discovery. On February 8, 2013,
LAUSD sent a letter to Anderson reminding him that there were outstanding Form
Interrogatories-General, that his objection to the Form Interrogatories-Employment Law

                                            19
have been waived, addressed the inaccurate claims in his correspondence, and reminding
Anderson that the motion to compel remained on calendar for April 16, 2013. On March
4, 2013, LAUSD received Anderson’s responses to Special Interrogatories without
objection. No opposition to LAUSD’s motion to compel had been received from
Anderson to show that proper responses had been served. On April 9, 2013, LAUSD
filed its reply.
       On April 16, 2013, the trial court granted LAUSD’s motion to compel and ordered
Anderson to pay a total of $600 in monetary sanctions to LAUSD within 30 days of its
ruling. The court reasoned that sanctions are warranted against Anderson for failing to
respond to the Special Interrogatories and Form Interrogatories in a timely fashion.
However, the court deemed LAUSD’s request for $1,000 in sanctions excessive given the
nature and scope of the motion. The court reduced that amount and imposed a total
monetary sanction of $600 on Anderson.
       We review the court’s imposition of discovery sanctions for abuse of discretion.
(Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217; R.S. Creative, Inc. v.
Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496-497.) The trial court’s broad
discretion is subject to reversal only if the sanction order is “arbitrary, capricious,
whimsical, or demonstrate a ‘“manifest abuse exceeding the bounds of reason . . . .”’
[Citations.]” (In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 108.) This
standard applies to challenges to the imposition of monetary sanctions for misuse of the
discovery process, the sanction levied here. (Liberty Mutual Fire Ins. Co. v. LcL
Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102; Britts v. Superior Court (2006)
145 Cal.App.4th 1112, 1123 [“abuse of discretion standard of review ordinarily applies . .
. to review of an order imposing discovery sanctions for discovery misuse”].)
       It is a well-established rule of appellate procedure that the judgment or order of the
lower court is presumed correct. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
To overcome this presumption, an appellant challenging an order must affirmatively
demonstrate prejudicial error. (Ibid.) When inquiring into prejudicial error, appellate
courts treat all evidentiary conflicts as having been resolved by the trial court in the

                                              20
manner most favorable to its ruling. (Williams v. Russ (2008) 167 Cal.App.4th 1215,
1224.) But an appellant cannot carry its burden of demonstrating a prejudicial abuse of
discretion without providing the appellate court with an adequate record of the lower
court’s proceedings. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [appellate record was
inadequate to demonstrate error regarding damages awarded because plaintiff failed to
include a reporter’s transcript of the portion of the trial relating to the issue of damages].)
       Here, the appellate record does not include a reporter’s transcript of the April 16,
2013 hearing on LAUSD’s motion to compel discovery responses and its request for
monetary sanctions. 3 Only the trial court’s ruling on the motion to compel was included
in the record on appeal. Based on a review of the trial court’s ruling and LAUSD’s
motion to compel, Anderson failed to respond to the interrogatories in a timely fashion
and failed to file an opposition to the motion to compel. (See Code of Civ. Proc., §
2030.290, subd. (a).) Despite these deficiencies, the court went so far as to substantially
reduce the amount of monetary sanctions requested by LAUSD against Anderson from
$1,000 to $600. We conclude the court did not abuse its discretion in awarding LAUSD
$600 in monetary sanctions. (See Code of Civ. Proc., §§ 2023.010, subd. (d) &
2030.290, subd. (c).)


Disqualification


       Anderson argues the trial court erred when it struck his three statements of
disqualification of Judge Ernest M. Hiroshige. (See Code Civ. Proc., § 170.1.) But
“[t]he determination of the question of the disqualification of a judge is not an appealable
order and may be reviewed only by a writ of mandate . . . . The petition for the writ shall
be filed and served within 10 days after service of written notice of entry of the court’s
order determining the question of disqualification.” (Code Civ. Proc., § 170.3, subd. (d);

       3 A partial reporter’s transcript of the hearing on the demurrer to the first amended
complaint and LAUSD’s motion to compel on April 16, 2013, was included in the clerk’s
transcript as an exhibit to one of Anderson’s motions.
                                              21
see also People v. Panah (2005) 35 Cal.4th 395, 444.) Anderson filed three statements of
disqualification in a three month period. All three of Anderson’s requests for
disqualification were submitted on the same grounds—that Anderson was dissatisfied
with the trial court’s rulings and an unsupported allegation of racial bias. Each of these
statements were stricken because no lawful grounds were presented. Anderson was
advised that the exclusive means to seek review of the order was a timely filing of a writ
of mandate.
       On November 18, 2013, Anderson did file a petition for writ of mandate with this
court. We denied the petition because Anderson failed to provide a sufficient record to
support his request for review. Anderson took no action to further review that decision.
We have no jurisdiction to entertain an appeal of the trial court’s ruling on Anderson’s
disqualification statements brought under Code of Civil Procedure section 170.1.


                                     DISPOSITION


       The judgment is affirmed. Costs on appeal are awarded to respondent LAUSD.




              KRIEGLER, J.


We concur:




              TURNER, P. J.                       GOODMAN, J.*




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