It's a damning indictment of a lot of things. Of Littler Mendelson. Of procedural complexity and obfuscation. Of summary judgment in employment cases. Of big-firm practice. At least as applied in a particular case.
Let me give you a taste. With the caveat that the 50-plus page original is really even much better:
"Plaintiff Iftikhar Nazir, a man of Pakistani ancestry, worked for United Airlines (United) for over 16 years, during which time he was called scurrilous names and was the victim of numerous other indignities. Plaintiff reached the level of mechanic supervisor, the only person of color to ever hold that position. He was terminated in 2005 by his supervisor Bernard Petersen, on the basis that plaintiff violated United's zero tolerance policy in an incident with a female employee of an outside service provider. Plaintiff sued United and Petersen (when referred to collectively, defendants) in a complaint that, save perhaps for two battery and fraud causes of action, asserted rather typical claims grounded on harassment, discrimination, and retaliation. What ensued was hardly typical.
Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants' separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants' own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants' moving papers were 1056 pages.
Plaintiff‟s opposition was almost three times as long, including an 1894-page separate statement, papers the trial court would later disparage as “mostly verbiage,” a description with which, as will be seen, we disagree. Curiously, no such criticism was leveled at defendants' papers, not even those in reply, papers that defy description.
Defendants' reply included, and properly, their response to plaintiff's additional disputed facts. Defendants' reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants' Reply.” And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff's declaration, many of which objections were frivolous. In all, defendants filed 1150 pages of reply.
Five thousand, four hundred, fifteen pages of material were before the trial court . . . . [The trial court grant[ed] summary judgment [in an order] that purports to sustain without explanation 763 out of 764 objections to evidence, in a record the likes of which we have never seen—not here, not in the combined 11 years of law and motion experience of the members of this panel. . . .
On August 30, 2007, defendants filed a “Motion for Summary Judgment or, in the Alternative, Summary Adjudication,” with moving papers totaling 1056 pages. Plaintiff filed his lengthy opposition which, as quoted above, the trial court described as “mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.”
Seemingly emboldened by this description, defendants' brief here begins this way: “As in Macbeth's soliloquy, Appellant's Opening Brief (AOB), like his summary judgment opposition below, is full of 'sound and fury, [but ultimately] signifying nothing.' Despite filing an 1894 page(!) opposition separate statement, which the trial court found . . . in a manner deliberately calculated to obfuscate whether any 'purportedly disputed facts were actually controverted by admissible evidence,' the trial court properly granted summary judgment in this case. As with Nazir's opposition statement, his AOB is 'mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.'"
Passing over whether such disparagement is effective advocacy, the “girth” of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.
As noted, the motion sought summary adjudication of 44 issues. As apt here, a defense-side motion for summary adjudication is appropriate if one or more “cause of action has no merit.” [Cite] Summary adjudication must completely dispose of the cause of action to which it is directed. [Cite] More than half of the 44 issues defendants sought to have summarily adjudicated fail to meet that burden, as they would not dispose of the claim. The effect of this misconduct is not insignificant, illustrated by the fact that many of the “issues” all repeat to some extent many claimed “undisputed material facts,” repetitive facts resulting in countless pages of utterly unnecessary—and necessarily unavailing—material.
The deficiencies in the motion pale in comparison to those in the separate statement. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” [Cite] The separate statement “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” [Cite] That hardly describes defendants' separate statement here.
The separate statement is, as noted, 196 pages. The exact number of supposedly material facts is impossible to know without actually counting them, as many of the facts are often repeated with the same numbers. But whatever the number, many of the facts are not material . . . . The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this. The reply also included 153 pages of “Exhibits and Evidence in Support of Reply.” No such evidence is generally allowed. . . .
But neither the inappropriateness of defendants‟ papers nor their excessive volume is the worst aspect of those papers. No, that is the misleading picture those papers presented. An article coauthored by an experienced Superior Court judge has “intended to point out, in ascending order of seriousness, certain fatal errors and other problems [the court has] encountered” in connection with summary judgment motions, at the very top of which are motions “that attempt to „hide‟ triable issues of material fact.” (Brenner & March, Use and Abuse of MSJs: A View from the Bench (2007) 49 Orange County Law 34, 37.) The article admonishes that a motion “should never cite evidence out of context in an effort to conceal a clearly triable issue of material fact,” going on to cite two recent examples in that judge's court, one in a sexual harassment case, the other in one for wrongful termination. (Id. at p. 37.) Here, in vivid detail, is a third."
I could go on. And on and on and on. Suffice it to say that Justice Richman is relentless. Totally relentless. It's definitely worth a read.
He's right, too. Or at least mostly so, in my opinion. This is no fly-by analysis. He's poked his head into the tent and actually thought about what went on. So, for example, he gets his hands dirty and talks specifically about particular (totally silly) evidentiary objections:
"[T]here is no way that the trial court could properly have sustained 763 objections 'guided and controlled by fixed legal principles.' [Cite] There are many reasons why. Some of the sustained objections did not even assert any basis for the objection! Some of the sustained objections were to plaintiff's testimony about his dates of employment, his religion, his skin color, and his national origin. Over 250 of the sustained objections failed to quote the evidence objected to, in violation of California Rules of court, rule 3.1354. Twenty-seven of the sustained objections were to plaintiff's brief, not his evidence. Beyond all this, many of the objections were frivolous. Two illustrations should suffice. First, plaintiff testified that “[s]ome of the names [he] was called by [his] co-workers . . . were 'sand nigger,' 'sand flea,' 'rag head,' and 'camel jockey.'" Defendants lodged four objections, two of which were lack of foundation and hearsay. No adjective is adequate to describe an objection that one who is called names lacks “foundation” to testify about them. And one does not need to be Wigmore to know that plaintiff was not introducing the names for their truth."
Good job. I like it when justices (and/or their clerks) go back to their first-year associate days and get their hands dirty with the objections. Not something you do every day on the Court of Appeal, and it's valuable.
So let's take a tally of who Justice Richman correctly excoriates:
(1) Littler Mendelson. Yep. They get killed. Utterly killed. For a firm that expressly pitches centers itself as an employment firm, this opinion is a killer. A total wipeout. In part because it's so harsh. And in part because it's so right. I'm sure Littler will spin the opinion as (a) wrong, and (b) just proof (even if right) that they work so aggressively and so hard that you should want to hire 'em, but that only gets you so far. And even less far when the Court of Appeal catches you and, as a result, reverses.
(2) Big firms. Justice Richman doesn't expressly slam 'em, but his indictment centers around them and how they (sometimes) litigate cases. Some of Justice Richman's indictments are a bit over the top; for example, in talking about the evidentiary objections, Justice Richman says in a footnote: "We sometimes “hear” that a common practice in cases staffed by multiple levels of lawyers is to assign the most junior lawyer to 'do the objections,' which was apparently done here. Perhaps a wiser practice would be have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections." Yeah. Like that's going to happen. As if this would make rational economic (or strategic) sense even if it were plausible. A big time partner does the objections and the first-year associate writes the brief. That's the best allocation of resources, I'm sure. And the one most likely to result in success on the merits. So I don't think Justice Richman is spot-on about some of his indictments. Nonetheless, on the whole, he's got a pretty good critique of biglaw practice in these tinier employment cases. One that's, in my experience, tolerably accurate and definitely worth review.
(3) The Trial Court. It's not that Justice Richman's slamming Judge Wiener (up in San Mateo) in particular. Moreover, he even admits that her job is tough when she's got to go through 5000 pages in order to decide the motion. Still, Justice Richman hardly treats her -- or others like her -- with kid gloves. He rightly slams her for getting the objections totally wrong, by being out of it on the merits, and basically for shorthanding the whole process. This seems right to me. This is done all the time. Trial judges too often look for time-saving simplicity to save them from tough choices and complexity. This is bad. It results in cases (and opinions) like this one. He's right on that front.
(4) Plaintiff's Lawyer. He doesn't actually get beaten up much at all; indeed, Justice Richman goes out of his way to basically excuse a lot of what the plaintiff did -- things that got slammed by the trial court -- as a necessary response to the misconduct of the defendant. Still, you don't leave with the impression that the plaintiff's lawyer did a stellar job. Maybe he did what he had to do. And if there's anyone who's relatively blameless in this affair, at least according to Justice Richman, it's the plaintiff. I think this is a bit simplistic, but I understand the take. And it's not that plaintiff entirely gets off. There's stuff in there, and he doesn't emerge entirely unscathed. But I'd rather be him than the rest of the field. By far.
So that's the score. An impressive score, I might add. Especially since Justice Richman's critiques are often spot on.
But let me add one additional insight. One that I think's important. There's one actor that the opinion doesn't critique at all. One that, in my view, is as equally responsible for the morass in this case as some of the actors Justice Richman isolates. And yet that the Court of Appeal does not critique in the slightest:
(5) The Court of Appeal. What Justice Richman doesn't say -- and I think it's a serious omission -- is that a lot of what transpired here results directly from the various holdings of the California Supreme Court and California Court of Appeal in cases exactly like this one. Why, for example, is the separate statement so long, so complexity, so protective and unnecessarily inclusive? Maybe it's because Littler wanted to bill more hours; you could at least have that theory. But in my view this is instead the direct result of California holdings that place so much emphasis on this (unneccesarily complex) procedural requirement: the "Golden Rule," the application of waiver principles, etc. That's why the thing is so long and convoluted: the direct -- totally foreseeable -- result of appellate holdings.
Ditto for the evidentiary objections. Why so many of 'em? And why'd the trial court shorthand the whole thing? Precisely because the Court of Appeal has itself created such incentives, by requiring the trial courts to make an express on-the-record ruling on every objection, by finding dispostive waiver in so many cases, etc. etc. Firms like Littler, and trial court judges, aren't just doing these things for fun. They're doing what they do in direct response to what the Court of Appeal has done in these cases for the past twenty years. It's made these cases procedurally complicated. It's created incentives for strategic behavior. It's forced trial courts to take on burdens -- like particularized on-the-record evidentiary objections -- that are often practically unworkable.
In short, cases like this are the way they are for a reason. And that reason starts at the top, not at the bottom. So Justice Richman's slams on the various participants is spot on. But he misses, in my view, part of the ship. An important part. A part that begins at the captain's chair. At a place that's not too far from where Justice Richman sits.
That's the only way I'd make Justice Richman's impressive -- and important -- analysis a bit more comprehensive. His insights are extremely valuable. So too, however, are his omissions.
There's more than enough blame here to go around.
