BRIAN REID v. GOOGLE

idence unless an objection was timely made — in the summary judgment context. (Judge Philip M. Saeta, letter to Sen. Com. on Judiciary re Sen. Bill No. 1200 (1979-1980 Reg. Sess.) Dec. 21, 1979 (Judge Saeta letter); Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1200 (1979-1980 Reg. Sess.) as introduced Apr. 24, 1979, pp. 2-3.)

Additionally, the bill eliminated the "requirement that the evidence considered by the court be admissible, and . . . instead allow[ed] the court to consider all evidence set forth in the papers, except that to which objections ha[d] been sustained." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1200 (1979-1980 Reg. Sess.) as introduced Apr. 24, 1979, p. 4.) Judge Saeta's letter maintained that the proposed amendments would "force the opposing parties to go through the moving papers and make those objections which are deemed to be applicable and have the trial judge rule on those objections just like the situation at trial. . . . Then on any appeal the merits of the [summary judgment] ruling can be addressed without going into minor evidentiary matters not deemed important enough to be raised at the trial level." (Judge Saeta letter, supra, at p. 2.)

(2) 1990 Amendment

Prior to the 1990 amendment, objections " not made either in writing or orally at the hearing" were deemed waived. (Former § 437c, subd. (b), as amended by Stats. 1984, ch. 171, § 1, pp. 544, 545, italics added.) As introduced, Senate Bill No. 2594 (1989-1990 Reg. Sess.) proposed the following change to section 437c, subdivision (b): "Evidentiary objections not made in writing at least two court days prior to the hearing shall be deemed waived." (Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as introduced Mar. 1, 1990, p. 2, italics added.) The Legislature then changed this language to its current form, providing that, "Evidentiary objections not made at the hearing shall be deemed waived." (§ 437c, subd. (b), italics added, as amended by Stats. 1990, ch. 1561, § 2, pp. 7330, 7331, enacting Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended May 7, 1990.)

A 1984 statutory amendment substituted "made either" for "raised here" so that the statute read: "Evidentiary objections not made either in writing or orally at the hearing shall be deemed waived." (Former § 437c, subd. (b), as amended by Stats. 1984, ch. 171, § 1, pp. 544, 545.)

Thus, the Legislature deleted the proposed language that exempted only written objections from waiver and deleted the then existing statutory language "either in writing or orally," so that the statute required evidentiary objections to be made "at the hearing" to avoid waiver. By removing the words "in writing" and "orally," we can reasonably infer that the Legislature intended not to restrict the manner in which objections had to be presented, as had been proposed, leaving the statute neutral regarding the objections' proper form. The 1990 amendment simply required that objections be presented to the trial court, rather than being made for the first time on appeal.

Legislative history supports this conclusion. One purpose of the 1990 amendment was to redefine what could be resolved on a motion for summary adjudication of issues. The Legislature expressly declared that: "It is also the intent of this legislation to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense." (Stats. 1990, ch. 1561, § 1, pp. 7329, 7330.) A second purpose was to "overturn[]" two Court of Appeal cases holding that the competency of witnesses could be challenged for the first time on appeal. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended Aug. 22, 1990, p. 2.) In that regard, the Legislature expressly declared: "It is the intent of this legislation to provide that all objections to the form and substance of the moving and opposing papers shall be first made in the trial court and not on appeal by the parties or by the appellate court and to expressly overrule the rules stated in Witchell v. DeKorne [(1986)] 179 [Cal.App.3d] 965 [ 225 Cal.Rptr. 176] and Zuckerman v. Pacific Savings Bank [(1986)] 187 [Cal.App.3d] 1394 [ 232 Cal.Rptr. 458]." (Stats. 1990, ch. 1561, § 1, pp. 7329-7330.) The overall purpose of the bill was "to make the summary judgment procedure more efficient and to reduce the opportunity for abuse of the procedure." (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended May 7, 1990, p. 2; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 2594 (1989-1990 Reg. Sess.) as amended Aug. 22, 1990, p. 2; see also Judicial Council of Cal., letter to Governor Deukmejian re Sen. Bill No. 2594 (1989-1990 Reg. Sess.) Sept. 17, 1990 [supporting the bill's requirement that parties raise evidentiary objections in the trial court because it would save time for appellate courts and simplify civil proceedings].)

In accord with the Legislature's second purpose, it also amended section 437c to add the following sentence to subdivision (d): "Any objections based on the failure to comply with the requirements of this subdivision [regarding the competence of declarants] shall be made at the hearing or shall be deemed waived." (Stats. 1990, ch. 1561, § 2, pp. 7330, 7331.) And, as mentioned above, the Legislature at the same time deleted the phrase "either in writing or orally" from section 437c, subdivision (b), to provide that, "Evidentiary objections not made at the hearing shall be deemed waived."

The 1990 amendment of section 437c by its terms required that objections be made in the trial court to avoid waiver, but did not designate how those objections needed to be presented. Because the statute and legislative history are silent as to the specific manner in which evidentiary objections must be made, we presume that the Legislature intended no changes to the established procedure for making evidentiary objections. Thus, the California Rules of Court govern. (See Cal. Const., art. VI, § 6, subd. (d); Cantillon v. Superior Court (1957) 150 Cal.App.2d 184, 187 [ 309 P.2d 890]; see also Mann v. Cracchiolo (1985) 38 Cal.3d 18, 29 [ 210 Cal.Rptr. 762, 694 P.2d 1134] [courts may adopt "rules with the force of law" with respect to summary judgment motions].)

At the time of the 1990 amendment of section 437c, California Rules of Court, former rule 343 (current rule 3.1352) explained how and when summary judgment objections were made. The Judicial Council first adopted former rule 343 in 1984. The Rules of Court were renumbered effective January 1, 2007. Substantively the same as when first adopted in 1984, current rule 3.1352 states: "A party desiring to make objections to evidence in the papers on a motion for summary judgment must either: [¶] (1) Submit objections in writing under rule 3.1354; or [¶] (2) Make arrangements for a court reporter to be present at the hearing." As with former rule 343 and current rule 3.1352, both former rule 345 and current rule 3.1354 require written objections to be served and filed before the hearing. (See now Cal. Rules of Court, rule 3.1354(a).) Thus, both before and after section 437c's 1990 amendment, the Rules of Court expressly allowed parties to choose how to record their objections.

At the summary judgment hearing, the parties have the opportunity to persuade the trial court and respond to its inquiries. ( Mediterranean Construction Co. v. State Farm Fire Casualty Co. (1998) 66 Cal.App.4th 257, 260 [ 77 Cal.Rptr.2d 781].) At that hearing, the court considers the motion, any opposition to the motion, any reply, and all supporting papers submitted before the hearing, as well as arguments and evidentiary objections made at the hearing. (See § 437c, subds. (a), (b)(1)-(4); Cal. Rules of Court, rules 3.1352, 3.1354(a).) Therefore, written evidentiary objections made before the hearing, as well as oral objections made at the hearing are deemed made "at the hearing" under section 437c, subdivisions (b)(5) and (d), so that either method of objection avoids waiver. The trial court must rule expressly on those objections. (See Vineyard Springs Estates v. Superior Court, supra, 120 Cal.App.4th at pp. 642-643 [trial courts have a duty to rule on evidentiary objections presented in proper form].) If the trial court fails to rule, the objections are preserved on appeal.

We disapprove Charisma R. v. Kristina S., supra, 175 Cal.App.4th 361, 369; Jones v. P.S. Development Co., Inc. supra, 166 Cal.App.4th 707, 711, footnote 4; Gallant v. City of Carson, supra, 128 Cal.App. 4th 705, 710; Ali v. L.A. Focus Publication, supra, 112 Cal.App.4th 1477, 1484; Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th 613, 624, footnote 7; City of Long Beach v. Farmers Merchants Bank, supra, 81 Cal.App.4th 780, 783-785; Knight v. City of Capitola, supra, 4 Cal.App.4th 918, 924, footnote 2; and Howell v. State Farm Fire Casualty Co., supra, 218 Cal.App.3d 1446, 1459, footnote 9, to the extent they hold that litigants must raise written objections orally at the hearing to preserve them on appeal.

We disapprove Biljac Associates v. First Interstate Bank, supra, 218 Cal.App.3d 1410. 1419, 1424, to the extent it permits the trial court to avoid ruling on specific evidentiary objections.

We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical. Trial courts are often faced with "innumerable objections commonly thrown up by the parties as part of the all-out artillery exchange that summary judgment has become." ( Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 711-712 [ 81 Cal.Rptr.3d 406].) Indeed, the Biljac procedure itself was designed to ease the extreme burden on trial courts when all "too often" "litigants file blunderbuss objections to virtually every item of evidence submitted." ( Demps, supra, 149 Cal.App.4th at pp. 578-579, fn. 6; see Biljac, supra, 218 Cal.App.3d at p. 1419, fn. 3; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248, 254 fn. 3 [ 100 Cal.Rptr.3d 296] [employer filed 324 pages of evidentiary objections, consisting of 764 specific objections, which the Court of Appeal characterized as the "poster child" for abusive objections].) To counter that disturbing trend, we encourage parties to raise only meritorious objections to items of evidence that are legitimately in dispute and pertinent to the disposition of the summary judgment motion. In other words, litigants should focus on the objections that really count. Otherwise, they may face informal reprimands or formal sanctions for engaging in abusive practices. At the very least, at the summary judgment hearing, the parties — with the trial court's encouragement — should specify the evidentiary objections they consider important, so that the court can focus its rulings on evidentiary matters that are critical in resolving the summary judgment motion.

Amicus curiae California Academy of Appellate Lawyers represents that "[i]n the real world, . . . most evidentiary objections do not matter very much to the [summary judgment] decision." Similarly, amicus curiae Association of Southern California Defense Counsel comments that "[a]ll too often trial courts face a flood of evidentiary objections, objections that may be addressed to matters that are tangential at best, at least given the trial court's view of the critical issues or evidence." Amicus curiae California Academy of Appellate Lawyers asks that we pronounce a "message to trial lawyers that if they want the trial court to make meaningful rulings, they should facilitate its doing so by choosing their battles wisely and only objecting to evidence when it matters."

b. Application of Waiver Rule

In this case, Google submitted 31 pages of objections, raising more than 175 separate objections to evidence submitted by Reid. At least 50 of the objections were based simply on "relevance." At the summary judgment hearing, Google generally referred to, and asked the court to rule on, all of its previously filed written objections. In a written order, the trial court ruled as follows: "The Court declines to render formal rulings on evidentiary objections. In ruling, the Court relied on competent and admissible evidence pursuant to Biljac Associates v. First Interstate Bank[, supra,] 218 Cal.App.3d 1410, 1419-1429."

The Court of Appeal refused to find waiver and explained: "The fact is that when a party properly brings an objection to the trial court's attention — i.e., when he files it in proper form — he has done everything he can or should be required to do to bring about a ruling." However, this case proves otherwise. At the summary judgment hearing, Google incorporated by reference its written objections, but also specifically objected to four items of evidence submitted by Reid. Thus, Google had the opportunity to significantly narrow its objections and wisely focused on what it considered to be key pieces of disputed evidence.

Nevertheless, because Google submitted its evidentiary objections in proper form in writing and orally, all of its objections were preserved on appeal. Despite the Court of Appeal's finding that the lack of a trial court ruling does not create waiver, Google claims that the Court of Appeal essentially applied waiver principles. It notes that the Court of Appeal "presumed" that the trial court's Biljac ruling was an implied overruling of its evidentiary objections and that the trial court considered all of the objected-to evidence. Google argues that the Court of Appeal incorrectly interpreted the Biljac ruling as a blanket admission of all objected-to evidence and that its adoption of this "presumed admitted rule" denied Google the opportunity to "squarely appeal issues of admissibility" and obtain a ruling on its objections. Instead, according to Google, adoption of a "presumed sustained rule" is more appropriate under the well-established principle that trial court rulings are construed in favor of affirming the lower court's order. Google asks that we adopt the presumed sustained rule, arguing that "it is more logically consistent to presume that the trial court, in granting summary judgment and issuing a Biljac ruling, implicitly ruled in favor of the prevailing party on all evidentiary objections."

Reid responds that a presumed sustained rule is contrary to the clear wording of section 437c, subdivision (c), that Google overlooks the distinction between waived and presumptively overruled objections, and that the presumed overruled approach taken by the Court of Appeal is supported by the statute. We agree.

Section 437c, subdivision (c) states, in relevant part: "In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . ." (Italics added.) Because the trial court here did not sustain any of the objections, let alone make any evidentiary rulings, it was required by section 437c, subdivision (c) to consider all of Reid's evidence. Similarly, "[o]n appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." ( Guz, supra, 24 Cal.4th at p. 334.) Thus, Google's presumed sustained approach is not supported by the statute.

On the other hand, the Court of Appeal's presumed overruled approach — whereby it viewed the objectionable evidence as having been admitted into evidence — is consistent with section 437c, subdivision (c), requiring the trial court to consider all the evidence except that to which objections were made and sustained. Google had a full opportunity to pursue its objections on appeal. Having found that the lack of a ruling does not create waiver, the Court of Appeal held that Google's objections were presumptively overruled, but — importantly — were preserved for appeal. Google's contention that there is no distinction between waived objections and those presumptively overruled overlooks that waived objections will not be considered on appeal ( Ann M., supra, 6 Cal.4th at p. 670, fn. 1), while presumptively overruled objections can still be raised on appeal, with the burden on the objector to renew the objections in the appellate court. Thus, the Court of Appeal correctly determined that if the trial court fails to rule expressly on specific evidentiary objections, it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal.

Indeed, Google never raised its presumed sustained argument in the Court of Appeal. Instead, Google took on the burden of renewing its evidentiary objections in the Court of Appeal.

Here, the Court of Appeal considered Google's evidentiary objections on the merits, in particular the admissibility of the statistical evidence and of certain alleged ageist comments under the stray remarks rule. While Google may disagree with the Court of Appeal's resolution of its evidentiary claims, nevertheless, it has not been prejudiced by any application of a waiver rule.

Alternatively, Google asks that the matter be remanded to the trial court for rulings on its evidentiary objections. It claims that the Court of Appeal's attempt to cure the trial court's ambiguous Biljac ruling by deciding evidentiary issues for the first time "improperly seized the trial court's duties of determining the parameters of the admissible evidentiary record," and "breache[d] the review limitations placed upon it by the abuse of discretion standard." On the other hand, Reid argues that the Court of Appeal correctly used a de novo review standard since the trial court made no evidentiary rulings, and that a remand is not necessary and would only result in delay. Agreeing with the Court of Appeal, both Reid and amici curiae advocate for the application of a de novo review standard in general, even where the trial court made evidentiary rulings. The Court of Appeal explained: "Because summary judgment is decided entirely on the papers, and presents only a question of law, it affords very few occasions, if any, for truly discretionary rulings on questions of evidence. Nor is the trial court often, if ever, in a better position than a reviewing court to weigh the discretionary factors."

We agree in part with Reid. First, because there was no exercise of trial court discretion, the Court of Appeal had no occasion to determine whether the trial court abused it. Second, Google expressly invited the Court of Appeal to address its evidentiary objections, which the Court of Appeal reviewed de novo, consistent with the general standard of review applicable to summary judgment rulings, that any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion. ( Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874 [ 191 Cal.Rptr. 619, 663 P.2d 177].) Thus, we need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.

Finally, because Google did not ask the Court of Appeal to remand the matter to the trial court for evidentiary rulings, its remand request comes too late. In any event, no purpose would be served in returning this matter to the trial court to re-review objections already considered by the Court of Appeal.

B. Stray Remarks Doctrine

Google contends that the Court of Appeal should have applied the stray remarks doctrine, i.e., should have categorized the alleged statements by Hölzle and Rosing as irrelevant stray remarks, and disregarded them in reviewing the merits of the summary judgment motion. Specifically, Google claims that the Court of Appeal erred in considering (1) Hölzle's statements that Reid was "slow," "fuzzy," "sluggish," "lethargic," did not "display a sense of urgency," and "lack[ed] energy" and his ideas were "obsolete" and "too old to matter"; (2) Rosing's statement to Reid at or around the time of his termination that he was not a "cultural fit"; and (3) coworkers' comments referring to Reid as an "old man" and "old fuddy-duddy," and a coworker's joke that his office placard should be an "LP" instead of a "CD." Google argues that the statements were irrelevant because they were made by non-decision-makers, were ambiguous, and were unrelated to the adverse employment decision.

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

1. Origin and Evolution of the Stray Remarks Doctrine

The term "stray remarks" first appeared in a concurring opinion by Justice O'Connor in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 276 [ 104 L.Ed.2d 268, 109 S.Ct. 1775] ( Price Waterhouse). In that case, the plaintiff, a senior manager at a nationwide professional accounting firm, sued her employer for sex discrimination when it refused to repropose her for partnership. ( Id. at pp. 231-232.) In her concurrence, Justice O'Connor stated that "stray remarks" — "statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself — do not constitute direct evidence of decision makers' "substantial negative reliance on an illegitimate criterion in reaching their decision." ( Id. at p. 277.) Unlike direct evidence of discriminatory animus, stray remarks, "standing alone," do not suffice to shift the burden of persuasion to the employer; decision makers may make neutral, nondiscriminatory comments about an employee's race or gender, such as referencing a "`lady candidate.`" ( Ibid.) However, Justice O'Connor explained that stray remarks can be probative of discrimination, and ultimately concluded that the plaintiff provided the requisite direct evidence that decision makers had unlawfully based their decision on gender. ( Ibid.) Such evidence included remarks by a partner suggesting she should "`walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry`" to improve her chances for partnership, and comments by other partners describing the plaintiff as "`macho`" and advising her to take "`a course at charm school.`" ( Id. at p. 235.)

Since Price Waterhouse, federal circuit courts have adopted and notably expanded Justice O'Connor's analysis in employment discrimination cases to create what has become known as the stray remarks doctrine. (See Reinsmith, Proving an Employer's Intent: Disparate Treatment Discrimination and the Stray Remarks Doctrine After Reeves v. Sanderson Plumbing Products (2002) 55 Vand. L. Rev. 219, 244-245.) Under this doctrine, federal circuit courts deem irrelevant any remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process, and such stray remarks are insufficient to withstand summary judgment. (See, e.g., Hill v. Lockheed Martin Logistics Management, Inc. (4th Cir. 2004) 354 F.3d 277, 283, 295-296 (in bank) [coworker's comments that plaintiff was a "`useless old lady`" who needed to retire, was a "`troubled old lady,`" and was a "`damn woman`" did not influence the decisional process and, therefore, were not relevant]; Waggoner v. City of Garland (5th Cir. 1993) 987 F.2d 1160, 1166 [direct supervisor's statements that plaintiff was an "old fart" and that a younger person could do faster work deemed "a mere `stray remark' . . . insufficient to establish age discrimination"].) Moreover, federal circuit courts have treated ambiguous comments as stray remarks because they do not sufficiently indicate discriminatory animus. (See, e.g., Fortier v. Ameritech Mobile Communications, Inc. (7th Cir. 1998) 161 F.3d 1106, 1108, 1113 [supervisor's comments that she wanted "new blood," a "quick study," and someone with "a lot of energy" did not reflect age bias]; Nesbit v. Pepsico, Inc. (9th Cir. 1993) 994 F.2d 703, 705 [supervisor's comment that "`[w]e don't necessarily like grey hair`" was "uttered in an ambivalent manner" and therefore "not tied directly to" plaintiff's termination].)

In California, several appellate cases have analyzed certain remarks in terms of whether they were stray. However, none of these cases explicitly adopted or addressed the stray remarks doctrine. Instead, they considered the remarks in totality with the other circumstances of the case. Three of these cases affirmed summary judgment for the employer, though their outcomes turned more on each plaintiff's failure to produce prima facie evidence of discrimination than on application of a strict stray remarks doctrine. ( Gibbs v. Consolidated Services (2003) 111 Cal.App.4th 794, 798, 801 [ 4 Cal.Rptr.3d 187] [although supervisor had commented plaintiff was "getting too old," employer subsequently established plaintiff lacked computer and management skills necessary for restructured company operations]; Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1160 [ 106 Cal.Rptr.2d 480] [plaintiff's allegation of anti-Semitic animus rested on "an isolated remark by a person not involved in the adverse employment decision"]; Horn v. Cushman Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 801-803, 809 [ 85 Cal.Rptr.2d 459] ( Horn) [plaintiffs allegation of age bias supported only by non-decisionmaking manager's single remark that "`this is 1994, haven't you ever heard of a fax before?`"].) A fourth case affirmed summary judgment for the employer, but turned entirely on the plaintiff's failure to establish a prima facie case of pregnancy discrimination; the plaintiff failed to make the requisite showing that her supervisor knew she was pregnant or that she was visibly pregnant at the time of termination. ( Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1145, 1147-1148 [ 29 Cal.Rptr.3d 144].)

In the remaining two decisions, the courts reversed summary judgment or summary adjudication, examining the discriminatory remarks in context and refusing to discount categorically those remarks as stray. ( Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 145, 154, fn. 15 [ 65 Cal.Rptr.2d 112] [decision maker's derogatory comments about Mexicans during plaintiff's job interview were not isolated remarks immaterial in proving discriminatory motive, but were relevant comments raising inference hiring decision based on plaintiff's ancestry]; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1094 [ 38 Cal.Rptr.3d 240] [decision maker's "`intonations about [plaintiff's] being pregnant`" to the effect that plaintiff had mentally "`checked out`" made during discussion whether to retain plaintiff as employee were evidence of discriminatory motive].)

In this case, the Court of Appeal rejected application of the stray remarks doctrine, disagreeing "with suggestions that a `single, isolated discriminatory comment' [citation] or comments that are `unrelated to the decisional process' are `stray' and therefore, insufficient to avoid summary judgment [citation]." The court recognized "[t]here are certainly cases that in the context of the evidence as a whole, the remarks at issue provide such weak evidence that a verdict resting on them cannot be sustained. But such judgments must be made on a case-by-case basis in light of the entire record, and on summary judgment the sole question is whether they support an inference that the employer's action was motivated by discriminatory animus. Their `weight' as evidence cannot enter into the question."

2. The Court of Appeal in This Case Correctly Rejected the Stray Remarks Doctrine's Categorical Exclusion of Evidence

Google contends that we should adopt the judicially created stray remarks doctrine so that California courts can "disregard discriminatory comments by co-workers and nondecisionmakers, or comments unrelated to the employment decision" "to ensure that unmeritorious cases principally supported by such remarks are disposed of before trial." It argues that application of the stray remarks doctrine is an important means for trial courts to sift out cases "too weak to raise a rational inference that discrimination occurred." ( Guz, supra, 24 Cal.4th at p. 362.) On the other hand, Reid argues that courts should not view the remarks in isolation, as Google invites, but that those remarks should be considered with all the evidence in the record. As explained below, we agree with Reid for several reasons.

First, strict application of the stray remarks doctrine, as urged by Google, would result in a court's categorical exclusion of evidence even if the evidence was relevant. An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination. ( Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398, 402 ( Shager) [stray remark "may be relevant evidence, with greater or less probative value depending on the precise character of the remark"].) Indeed, Justice O'Connor, who coined the term "stray remarks," stated that stray remarks do not constitute "direct evidence" of discriminatory animus, but acknowledged that such remarks can be "probative." ( Price Waterhouse, supra, 490 U.S. at p. 277 (conc. opn. of O'Connor, J.).)

In a later decision authored by Justice O'Connor, the United States Supreme Court declined to apply strictly the stray remarks doctrine in an age discrimination case relating to evidence of a decision maker's remark not made in the direct context of the employment decision. ( Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 152-153 [ 147 L.Ed.2d 105, 120 S.Ct. 2097] ( Reeves).) In Reeves, a jury had returned a verdict in favor of an employee. The federal district court denied the employer's motion for judgment as a matter of law, but the Fifth Circuit Court of Appeals reversed the judgment, finding that no rational trier of fact could have found that the employee was fired because of his age. The court of appeals acknowledged "`the potentially damning nature`" of the decision maker's age-related comments, but nevertheless discounted them on the ground they "`were not made in the direct context of [the plaintiff's] termination.`" ( Reeves, at p. 152.)

The court in Reeves noted that, under the [federal rules, the standard for granting summary judgment (Fed. Rules Civ.Proc., rule 56, 28 U.S.C.) "mirrors" the standard for judgment as a matter of law (Fed. Rules Civ.Proc., rule 50, 28 U.S.C), such that "`the inquiry under each is the same,`" i.e., that the court must review the record "`taken as a whole.`" ( Reeves, supra, 530 U.S. at p. 150.)

The high court criticized the court of appeals for disregarding those comments along with other evidence presented by the plaintiff, and for failing to draw all reasonable inferences in favor of the plaintiff. It noted that, by disregarding critical evidence favorable to the plaintiff and crediting evidence presented by the employer, the court of appeals "impermissibly substituted its judgment concerning the weight of the evidence for the jury's." ( Reeves, supra, 530 U.S. at p. 153.) The court held that if the plaintiff establishes a prima facie case and demonstrates pretext through circumstantial evidence, including evidence of discriminatory comments by a decision maker unrelated to the adverse employment decision, then a reasonable trier of fact may infer intentional discrimination. ( Id. at pp. 148, 153-154.) Thus, Reeves indicates that even if age-related comments can be considered stray remarks because they were not made in the direct context of the decisional process, a court should not categorically discount the evidence if relevant; it should be left to the fact finder to assess its probative value.

In a decision after Reeves, the Fifth Circuit Court of Appeals impliedly rejected the stray remarks doctrine. The court warned that the stray remarks doctrine "`is itself inconsistent with the deference appellate courts traditionally allow juries regarding their view of the evidence presented and so should be narrowly cabined.' [Citation.]" ( Russell v. McKinney Hospital Venture (5th Cir. 2000) 235 F.3d 219, 229 ( Russell).) The court concluded that "[a]ge-related remarks are appropriately taken into account when analyzing . . . evidence . . ." of discrimination "even if not in the direct context of the decision and even if uttered by one other than the formal decisionmaker, provided that the individual is in a position to influence the decision." ( Ibid.)

Consistent with Reeves and Russell, we have stated that in ruling on a motion for summary judgment, "the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact." ( Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.) Similarly, here, the Court of Appeal noted that by discounting age-related comments as stray remarks, a court would be permitted to do what it is otherwise prohibited from doing on a summary judgment motion, i.e., weigh the evidence. (See, e.g., Horn, supra, 72 Cal.App.4th at p. 809 [acknowledging trial court was prohibited from weighing the evidence, but then finding stray remark was " entitled to virtually no weight in considering whether the firing was pretextual or whether the decisionmaker harbored discriminatory animus" (italics added)].)

Google contends that a trial court must assess the relative strength and nature of the evidence presented on summary judgment in determining if the plaintiff has "created only a weak issue of fact." ( Reeves, supra, 530 U.S. at p. 148.) However, Google overlooks that a review of all of the evidence is essential to that assessment. The stray remarks doctrine, as advocated by Google, goes further. It allows a court to weigh and assess the remarks in isolation, and to disregard the potentially damaging nature of discriminatory remarks simply because they are made by "nondecisionmakers, or [made] by decisionmakers unrelated to the decisional process." ( Price Waterhouse, supra, 490 U.S. at p. 277 (conc. opn. of O'Connor, J.); see Reeves, supra, 530 U.S. at pp. 152-153; Tomassi v. Insignia Financial Group, Inc. (2d Cir. 2007) 478 F.3d 111, 116 ["[w]e did not mean to suggest that remarks should first be categorized either as stray or not stray and then disregarded if they fall into the stray category"].) Google also argues that ambiguous remarks are stray, irrelevant, prejudicial, and inadmissible. However, "the task of disambiguating ambiguous utterances is for trial, not for summary judgment." ( Shager, supra, 913 F.2d at p. 402 ["On a motion for summary judgment the ambiguities . . . must be resolved against the moving party."].) Determining the weight of discriminatory or ambiguous remarks is a role reserved for the jury. (See Reeves, supra, 530 U.S. at pp. 152-153.) The stray remarks doctrine allows the trial court to remove this role from the jury.

Second, strict application of the stray remarks doctrine would be contrary to the procedural rules codified by statute and adopted in our cases. Section 473c, subdivision (c), directs that, at the summary judgment stage, courts "shall consider all of the evidence set forth in the papers . . . and all inferences reasonably deducible from the evidence." (See also Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856 ["court[s] must consider all of the evidence and all of the inferences drawn therefrom"].)

Google argues that adoption of the stray remarks doctrine provides a necessary means for courts to "winnow out" weak cases that fail to raise a rational inference of discrimination. However, a totality of circumstances analysis successfully winnows out cases "too weak to raise a rational inference that discrimination occurred." ( Guz, supra, 24 Cal.4th at p. 362 [court may grant summary judgment where "`the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred`"].) "`Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors,`" including "`the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case. . . .`" ( Ibid., quoting Reeves, supra, 530 U.S. at pp. 148-149.) Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence. Certainly, who made the comments, when they were made in relation to the adverse employment decision, and in what context they were made are all factors that should be considered. Thus, a trial court must review and base its summary judgment determination on the totality of evidence in the record, including any relevant discriminatory remarks.

Third, the stray remarks cases merely demonstrate the "common-sense proposition" that a slur, in and of itself, does not prove actionable discrimination. ( Shager, supra, 913 F.2d at p. 402; see also Waggoner v. City of Garland, supra, 987 F.2d at p. 1166 ["mere stray remarks, with nothing more, are insufficient to establish a claim of age discrimination." (italics added)].) A stray remark alone may not create a triable issue of age discrimination . . . (See, e.g., Merrick v. Farmers Ins. Group (9th Cir. 1990) 892 F.2d 1434, 1438-1439 [employer's statement that replacement employee had been hired because he was a "'bright, intelligent, knowledgeable young man`" was insufficient to defeat summary judgment].) But when combined with other evidence of pretext, an otherwise stray remark may create an "ensemble [that] is sufficient to defeat summary judgment." ( Shager, supra, 913 F.2d at p. 403, italics added.)

Fourth, because there is no precise definition of who is a decision maker or what constitutes remarks made outside of the decisional process in the employment context, federal circuit courts have diverged in determining what constitutes a stray remark. While courts characterize remarks by non-decision-makers as stray, they disagree as to who is a decision maker. Some courts have required that the speaker be the final decision maker in order to consider the remark as evidence of discriminatory animus or pretext. (See, e.g., Hall v. Giant Food, Inc. (D.C. Cir. 1999) 336 U.S. App.D.C. 63 [ 175 F.3d 1074, 1079-1080].) Other courts have considered remarks made by a speaker merely involved in the decisionmaking. (See, e.g., Rose v. New York City Bd. of Education (2d Cir. 2001) 257 F.3d 156, 162 [stray remark analysis focused on speaker's influence in the "decision making process"]; Woodson v. Scott Paper Co. (3d Cir. 1997) 109 F.3d 913, 922 [stray remarks analysis focused on whether speaker was in "`the chain of decisionmakers who had the authority to hire and fire plaintiff"].) Yet other courts permit discriminatory remarks made by subordinate employees that implicate decision makers. (See, e.g., Bergene v. Salt River Project Agriculture Improvement Power Dist. (9th Cir. 2001) 272 F.3d 1136, 1141 [manager's motive imputed to employer though manager was not "ultimate decisionmaker"]; see also Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 668-669 [ 8 Cal.Rptr.2d 151] [racially biased statement by author of negative recommendation letter to a university appointments, promotions, and tenure committee properly considered because decisionmaking body relied on the letter author's recommendation].)

As noted by the court in Shager, the stray remarks doctrine contains a major flaw because discriminatory remarks by a non-decisionmaking employee can influence a decision maker. "If [the formal decision maker] acted as the conduit of [an employee's] prejudice — his cat's paw — the innocence of [the decision maker] would not spare the company from liability." ( Shager, 913 F.2d at p. 405.) Many federal circuit courts have adopted Shager, supra's analysis, finding that discriminatory comments by someone in a position to influence a decision maker were relevant. (See, e.g., Russell, supra, 235 F.3d at p. 227 [citing cases in which courts found subordinates' discriminatory comments influenced decision makers]; Hunt v. City of Markham (7th Cir. 2000) 219 F.3d 649, 652-653; Kendrick v. Penske Transportation Services, Inc. (10th Cir. 2000) 220 F.3d 1220, 1231.)

Federal courts have also disagreed about how close in time the discriminatory remark must be to the unfavorable employment decision to categorize it as stray. Some courts have permitted evidence of comments made years before the adverse employment decision, while others have disregarded remarks made just months before the decision. (Compare Danzer v. Norden Systems, Inc. (2d Cir. 1998) 151 F.3d 50, 54-55 [reversed summary judgment for employer where supervisor called current staff "a bunch of alt[er] cockers`" or "`old fogies`" more than a year before plaintiff's job elimination because they were "part of a sequence of events culminating in his discharge"] and Brewer v. Quaker State Oil Refining Corp. (3d Cir. 1995) 72 F.3d 326, 333 [reversed summary judgment for employer where statement in company newsletter two years before plaintiffs termination described two new executives as "`star young men,`" explaining, "`[t]hat age group is our future`"] with Ptasznik v. St. Joseph Hospital (7th Cir. 2006) 464 F.3d 691, 693, 695 [affirmed summary judgment for employer on age and national origin discrimination claims though supervisor made comments that plaintiff was "`too old,`" "`too Polish,`" and "`stupid`" one to three months before termination] and Fortier v. Ameritech Mobile Communications, Inc., supra, 161 F.3d at pp. 1108, 1113 [affirmed summary judgment for employer where human resources vice-president stated four months before termination it was time for "`new blood`" and a 26-year-old worker was a "`quick study`"].) Also, while some courts have found it determinative that the remarks were not directly related to the employment decision, others have found that comments unrelated to the decision were relevant evidence of discriminatory animus. (Compare Nesbit v. Pepsico, Inc., supra, 994 F.2d at p. 705 [affirmed summary judgment for employer where decision maker's remark "`[w]e don't want unpromotable fifty-year olds around`" not related directly or indirectly to employees' terminations] and Nidds v. Schindler Elevator Corp. (9th Cir. 1996) 113 F.3d 912, 918-919 [affirmed summary judgment for employer where decision maker's casual comment he intended to get rid of "`old timers`" "`not tied directly to`" employee's termination] with Estes v. Dick Smith Ford, Inc. (8th Cir. 1988) 856 F.2d 1097, 1104 [reversed jury verdict for employer and remanded for new trial where manager told racist jokes at staff meetings and referred to Blacks as "`damn niggers`"] and Ercegovich v. Goodyear Tire Rubber Co. (6th Cir. 1998) 154 F.3d 344, 356 ["management's consideration of an impermissible factor in one context may support the inference that the impermissible factor entered into the decision-making process in another context"].)

Finally, federal courts have treated identical remarks inconsistently. For instance, some courts have viewed decision makers' statements that older employees are not "promotable" as evidence of age discrimination, while others have refused to permit that inference from the same remark. (Compare Cline v. Roadway Express, Inc. (4th Cir. 1982) 689 F.2d 481, 488 [affirmed district court's judgment against employer where decision maker fired employee because he was not "promotable" and replaced him with younger, potentially promotable person in accordance with his understanding of company policy] with Coleman v. Quaker Oats Co. (9th Cir. 2000) 232 F.3d 1271, 1282, 1284-1285 [affirmed summary judgment for employer, finding use of word "promotable" by itself did not give rise to inference of age discrimination] and Nesbit v. Pepsico, Inc., supra, 994 F.2d at p. 705 [affirmed summary judgment for employer where vice-president of personnel stated "`[w]e don't want unpromotable fifty-year olds around`"].

Some federal courts have found employers' statements about the need for "new blood" or "young blood" to be ageist remarks, while others have not. (Compare Danzer v. Norden Systems, Inc., supra, 151 F.3d at p. 53 [reversed summary judgment for employer where supervisor made comments including "`[w]e need new blood — new and younger`"] and Meschino v. Internat. Telephone Telegraph Corp. (S.D.N.Y. 1983) 563 F.Supp. 1066, 1071 [denied summary judgment for employer where company's CEO announced that managers "`had to bring [in] younger blood, younger executives, change the mix`"] with Fortier v. Ameritech Mobile Communications, Inc., supra, 161 F.3d at p. 1113 [affirmed summary judgment for employer even though plaintiff's direct supervisor said "`new blood' would be good in [plaintiff's job] position"] and Gagne v. Northwestern National Ins. Co. (6th Cir. 1989) 881 F.2d 309, 314 [affirmed summary judgment for employer even though plaintiff's supervisor commented during a meeting he "`needed younger blood`"].)

Similarly, federal courts have disagreed as to the ageist nature of references to "grey hair." (Compare Palasota v. Haggar Clothing Co. (5th Cir. 2003) 342 F.3d 569, 573, 578 [reversed district court's judgment as matter of law for employer where company president said there was enough "`graying of the sales force`" and manager said "`we've got an ageing, graying sales force out there`"] with Sandstad v. CB Richard Ellis, Inc. (5th Cir. 2002) 309 F.3d 893, 898 [affirmed summary judgment for employer even though senior manager responsible for employee's firing expressed concern over perception the company had "`too much grey hair`" in management] and Nesbit v. Pepsico, Inc., supra, 994 F.2d at p. 705 [affirmed summary judgment for employer even though supervisor told plaintiff "`[w]e don't necessarily like grey hair`" because comment not directly tied to plaintiff's termination].) Courts have also disagreed as to the ageist nature of the term "old fart." (Compare Minshall v. McGraw Hill Broadcasting Co., Inc. (10th Cir. 2003) 323 F.3d 1273, 1281 [affirmed judgment after jury verdict for plaintiff where comments included company director's statement she was disgusted when "she saw `an old fart' on television without a shirt"] and Bevan v. Honeywell, Inc. (8th Cir. 1997) 118 F.3d 603, 607, 610 [affirmed judgment after jury verdict for plaintiff where human resources head stated placement of "old farts" in organization was difficult] with Waggoner v. City of Garland, supra, 987 F.2d at p. 1166 [affirmed summary judgment for employer even though director called plaintiff an "old fart" and told him a younger person could do faster work].)

As shown above, federal courts have widely divergent views regarding who constitutes a decision maker and how much separation must exist between the remark and an adverse employment decision for the remark to be considered stray. As Reid points out, the only consistency to the federal stray remarks cases is that the probative value of the challenged remark turns on the facts of each case. That was the approach taken by the Court of Appeal here. The court considered the so-called "stray remarks" by Hölzle, Rosing, and Reid's coworkers in combination with all of the evidence. Reid's other evidence included (1) an e-mail exchange between Google cofounder Brin and Rosing in which he told Rosing and other executives to "avoid the tendency towards bloat here particularly with highly paid individuals" and Rosing's response that he was replacing Reid as director of operations with the younger Hölzle, noting, "We are looking for a senior Director (note I did not capitalize Sr.) or VP level person to run this operation . . ."; (2) an e-mail exchange between CEO Schmidt and Rosing regarding a proposal on "getting [Reid] out," in which Rosing responded they should change the decision not to give Reid a bonus to avoid "a judge concluding we acted harshly . . ."; (3) explanations by Rosing and Shona Brown that Reid was terminated because he was not a "cultural fit"; (4) statistical evidence of discrimination at Google; (5) Reid's demotion to a nonviable position before his termination; and (6) changed rationales for Reid's termination. Moreover, the court noted Reid presented evidence that Rosing and Hölzle supervised him and were involved in the termination decisions, thus calling into question whether Rosing's and Hölzle's alleged ageist comments even qualify as stray remarks.

Reid presented evidence that he was not given any reason for his termination other than lack of "cultural fit," and was told the graduate program would continue and his termination was not performance based. Reid asserts that Google raised job elimination and performance problems as a basis for his termination for the first time in its motion for summary judgment.

Accordingly, in reviewing the trial court's grant of Google's summary judgment motion, the Court of Appeal properly considered evidence of alleged discriminatory comments made by decision makers and coworkers along with all other evidence in the record.

Google argues that Reid's statistical evidence was inadmissible and the parties argue the merits of whether the Court of Appeal correctly concluded there was a triable issue of material fact as to pretext. However, those issues are beyond the scope of review.

III. DISPOSITION

For the reasons stated above, we affirm the judgment of the Court of Appeal.

George, C. J., Kennard, J., Baxter, J., Werdegar, J., Moreno, J., and Corrigan, J., concurred.