Metropolitan News-Enterprise


Monday, September 13, 2021


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Exclusion of One-Sentence Quote Triggers C.A.’s Reversal

Justice Wiley Says Evidentiary Error Was Enough, in Context, to Require Invalidating Summary Judgment


By a MetNews Staff Writer


The Court of Appeal for this district on Friday reversed a summary judgment granted to Loyola Marymount University in an age and gender discrimination case, with its decision hinging on the trial judge’s exclusion from evidence of single one-sentence remark which a declarant said she heard a supervisor utter.

Justice John Shepard Wiley Jr. of Div. Eight wrote the opinion in which he said that the remark, if admitted, would tilt the scales against summary judgment.

The remark was allegedly spoken by Johana Hernandez, assistant dean in the School of Film and Television. When told of a person’s interest in a particular post there, according to the declaration of a former employee, Carolyn Bauer, Hernandez responded that she “wanted someone younger” for the job.

Los Angeles Superior Court Judge Ramona See, ruling on the motion for summary judgment, agreed with Loyola Marymount that the comment was inadmissible. She proceeded to find that the university put forth legitimate reasons for its decisions, including promoting Hernandez over the plaintiff, Linda Jorgensen, and that Jorgenson, with the burden thus shifted to her, failed to show that the proffered reasons were pretextual.

Bauer’s quotation of the remark was improperly excluded, and that error, in combination with other factors, requires reversal, Wiley declared.

“[S]uch remarks can be relevant in age discrimination suits,” he wrote, citing the California Supreme Court’s 2010 decision in Reid v. Google, Inc.

“Together with other evidence,” he explained, “they can make summary judgment inappropriate. That holds here.”

None of the grounds offered by Loyola Marymount for exclusion—relevance, conjecture, speculation, and hearsay was valid, Wiley said, commenting:

“These four objections were wide of the mark.”

As to relevance, the jurist pointed to facts indicating that Hernandez had influence over the then-dean, Stephen Ujlaki, who made hiring decisions. He continued:

“The second objection was ‘speculation,’ but there was no speculation. Bauer quoted Hernandez word-for-word. That is not speculation.

“Third, there was no conjecture, for the same reason.

“Fourth, there was no hearsay problem. Hernandez’s comment is within the exception for states of mind.”

Wiley cited Evidence Code §1250 which says “evidence of a statement of the declarant’s then existing state of mind” is generally not made inadmissible by the hearsay rule” it is “offered to prove the declarant’s state of mind… when it is itself an issue in the action” or “is offered to prove or explain acts or conduct of the declarant.”

Wiley went on to say:

“How does this evidentiary error affect the validity of the summary judgment? The rule is not automatic reversal. A stray remark alone may not create a triable issue.”

However, in combination with other factors, he said, the case was one for a jury to decide.

“An influential advisor who makes a clearly biased comment generates relatively potent evidence in a case like this,” he observed. “Where there is smoke, there might be fire.”

He pointed out that a male associate dean was paid more than as female associate dean hired at the same time, and that criticism of his management methods had resulted in Ujlaki’s departure as dean.

The jurist set forth:

“These elements create an ambiguous picture. How should one interpret it? The familiar rule is that, when ruling on a motion for summary judgment, the court may not weigh the plaintiff’s evidence or inferences against the defendant as though the court were sitting as the trier of fact….Adding Hernandez’s overtly discriminatory comment to this record made summary judgment inappropriate.”

The case is Jorgensen v. Loyola Marymount University, B305594.

Attorneys on appeal were sole practitioner Sarvenaz Bahar for Jorgensen; William J. Tebbe and Stephen R. Isbell of the Costa Mesa office of Musick, Peeler & Garrett for Loyola Marymount.


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