ZELON, J.
Wilkins Ching sued his former employer, Warner Bros. Studio Facilities, alleging that his employment was terminated for reasons of racial discrimination. Warner Bros. successfully moved for summary judgment, and Ching appeals. We affirm the judgment.
Ching worked as what he termed a "security guard" and what Warner Bros. called a "set watch employee." Ching alleged that his employment was terminated because of his Pacific Islander ancestry. Ching sued, asserting causes of action entitled: employment discrimination; tortious discharge; breach of the implied contract of continued employment; bad faith; defamation; intentional infliction of emotional distress; negligent infliction of emotional distress; and spoliation of evidence. The spoliation of evidence claim was the subject of a successful demurrer without leave to amend.
Warner Bros. moved for summary judgment. It argued that the first two causes of action, for employment discrimination and wrongful discharge in violation of public policy, failed because it had legitimate business reasons for terminating Ching that Ching could not show were pretextual. Specifically, Ching had been observed obtaining an autograph from a famous actress, in violation of company policy; he had attempted to take a sandwich from a television production craft services table, in violation of the company's food and drink policy; he had taken two bottles of water from a film production craft services ice chest; he had given cash gifts to the overtime assignment schedulers; and that during the investigation into Ching's conduct, after having been specifically admonished not to discuss the investigation with other employees while it was ongoing, Ching spoke with another employee about the investigation. Ching was given the option to resign, which he did, and his union accepted the resignation as an acceptable resolution of the matter. Warner Bros. produced evidence that the employee Ching accused of racial bias had once stated that his first name "sounded like a Hollywood star's name," and that although Ching maintained that the comment evinced racial bias because he "thought" the employee actually meant that it sounded like a "black name," Ching did not believe that the employee had any knowledge of his racial or national origin. The allegedly "Caucasian" employees that Ching gave the money to were not terminated, but this, Warner Bros. produced evidence to show, was because the investigator was satisfied with their innocent explanations for accepting the cash while Ching had admitted improper motives for giving the gifts.
The trial court granted the motion, finding in an extensive written decision that Ching failed to make a prima facie showing of racial discrimination. Even if he had done so, the court found, Warner Bros. had met its burden of demonstrating nonpretextual, nondiscriminatory reasons for the decision to terminate Ching's employment, and Ching had not, in turn, demonstrated a triable issue of material fact as to whether those reasons were pretextual. The court also found that the causes of action for breach of implied covenant of continued employment and bad faith were preempted by federal law. The court concluded that Ching's defamation claim was time-barred and that he had not shown any disputed issues of material fact with respect to his emotional distress causes of action. The court entered judgment in Warner Bros.'s favor. Ching appeals.
Ching claims that the court erred with respect to each cause of action when it granted summary judgment. On appeal from a summary judgment, we make "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) We consider the causes of action in groups based on their common features.
Ching argues that triable issues of material fact existed as to his causes of action for employment discrimination and wrongful discharge. Specifically, he contends that he presented evidence that Warner Bros. discriminated against him and treated him differently because he is a Pacific Islander, and that the reasons offered for his termination were pretextual.
We have reviewed Warner Bros.'s separate statement of material facts, Ching's responsive statement, and the supporting evidence submitted by the parties. Warner Bros. presented evidence establishing a prima facie case that Ching was asked to resign for reasons that were neither racial in motivation nor violative of public policy. Specifically, Warner Bros. submitted evidence that Ching had been admonished for making inappropriate comments to a celebrity on the Warner Bros. lot; that he had taken food and drink from craft services supplies in violation of company policy; that he had given financial gifts to schedulers with the expectation that this would result in future work assignments;; and that he had discussed a confidential ongoing investigation with other employees despite being specifically admonished not to do so. This evidence of legitimate, nondiscriminatory reasons for the allegedly adverse employment action was sufficient to negate the element of discriminatory intent and shift the burden to Ching. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356-357; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150; see Code Civ. Proc., § 437c, subd. (p)(2) [defendant meets its burden on summary judgment by showing "one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action"].)
Ching was therefore obligated to offer evidence from which a trier of fact could conclude that the stated reason for terminating his employment was in fact pretextual. Ching did not do so, relying instead on flat denials and conclusory statements of discrimination rather than actual evidence of pretext. For instance, in response to the evidence provided by Warner Bros. that Ching had made inappropriate comments about his granddaughters to a celebrity, Ching simply repeatedly denied the alleged facts, claimed that the celebrity had volunteered her autograph, and wrote, "Ching denied any violation; Ching was told he was given a `warning' and the matter was allegedly dropped. [Citation.] Ching did not ask for an autograph" as well as "This `investigation' was a pretext. Ching did not ask for an autograph." This was not sufficient to establish any triable issue of material fact. Ching's assertion that he did not ask for an autograph is consistent with Warner Bros.' ultimate conclusion that he did not request one, and his claim that he was given a warning is consistent with Warner Bros.'s evidence that he was given a verbal warning because he had made inappropriate comments to the celebrity. Ching's deposition, on which he relies as evidence, contains Ching's admissions that he spoke to the celebrity in question, told her that his granddaughters adored her, and that he was investigated and given a warning as a result. Although Ching maintained that the "`investigation' was a pretext," he did not offer any evidence tending to suggest that was so or demonstrating disputed issues of material fact with respect to this incident.
Similarly, Ching also maintained in his opposing separate statement that he had not improperly taken a sandwich from one production but had in fact tried to take the sandwich for a driver associated with that production. He contended that the driver, Michael Santana, "also admitted this but then 3 years later was coerced by W[arner Bros.] and its attorney to change his testimony to support WB (because Mr. Santana wanted to keep his job) and fabricate that he did not ask Mr. Ching to get the sandwich." The evidence Ching submitted to support that statement—an excerpt and exhibit from Santana's deposition—does not do so. At deposition, Santana testified that he met with counsel and told him what had occurred, and counsel typed what he said in declaration form. The unsigned declaration that resulted when Santana "told him what happened and he typed it out and gave me a copy and that was it" was provided: it told a story of Ching approaching Santana and asking him to tell Warner Bros. that Ching was getting food for him, or else he (Ching) would lose his job. Santana felt bad for Ching and did not want to see him lose his job, so he told the studio that the food was for him. Actually, however, Santana "did not at any time ask Mr. Ching to get me a sandwich, or for that matter any food or beverage" from the craft services table. Despite asserting that Santana was coerced into lying, Ching submitted no evidence that Santana's account was false or that he was pressured into changing his statement. Ching, therefore, did not establish any triable issue of material fact with respect to this violation of company policy.
Concerning the improper gift-giving incident, Warner Bros. produced evidence that one of the recipient employees was about to be married and understood the gift to be a wedding gift, as it was enclosed with a wedding card and delivered shortly before the wedding; and the other gift was described as a birthday gift to the recipient's son, but the employee was planning to return it for a number of reasons. The Warner Bros. employee who investigated what had occurred, Silisha Sidell, was satisfied with the receiving employees' explanations. In contrast, Ching had told a fellow security guard that he was angry and resentful that his payments had not led to continued work on a specific film production and he had admitted to Sidell that he thought his gift would influence future assignments, particularly keeping him on the specific film production. Sidell concluded that Ching's motives for making the gifts were improper and violated company policies.
In response to the pertinent entries in the separate statement of material fact concerning these events, Ching did not produce evidence that would tend to demonstrate that a material issue of disputed fact existed. Instead, Ching wrote, "Deny that it was to [investigator] Sidell's satisfaction—it was disparate treatment—Strigle [one of the recipients] was white and favored." With respect to the fact that the investigator was satisfied with the other employee's explanation of events, Ching wrote, "They were treated as not being bribed and were not fired or severely disciplined whereas Mr. Ching was treated disparately and fired for giving `bribes' even though W[arner] B[ros.] and Sidell knew they were not bribes." No citation to evidence accompanied this statement, which was repeated as Ching's response to the material fact that the Warner Bros. investigator "determined that the conflicting evidence and ambiguities regarding the state of mind for either of the cash recipients stood in stark contrast to the strength of the evidence regarding Ching's state of mind when he gave them the cash, especially in light of the fact that as a daily hire, Ching looked to the schedulers for future job assignments." With respect to the fact that the investigator concluded that Ching's motives had been improper, Ching merely objected, wrote "Deny," and referred the court to the earlier response, "Deny that it was to [investigator] Sidell's satisfaction—it was disparate treatment—Strigle [one of the recipients] was white and favored." With these denials unsupported by evidence of pretext, Ching failed to demonstrate that a material issue of disputed fact existed as to whether he was subjected to disparate treatment or whether his termination was pretextual in nature. He did not demonstrate that the other employees in question were similarly situated to him—that they had similar histories of misconduct, that they had had similar understandings of the purpose of the gifts, and that their conduct merited consequences similar to those imposed on Ching, such that a court could conclude that a triable issue of material fact was presented concerning whether Ching's treatment was based on racial animus.
Ultimately, Ching's opposition to the summary judgment consisted of denials, conclusory assertions that he was discriminated against and did nothing wrong, and explanations for his conduct. It does not, however, show pretext. At best, he may have established a dispute of fact as to whether in some of these incidents he engaged in misconduct or violated company policy, but even if there may be another explanation for his behavior he has not submitted any evidence tending to show or imply that Warner Bros. engaged in racial discrimination rather than making a mistake of fact as to his misconduct. "[A]n employer who fires an employee under the mistaken but honest impression that the employee violated a work rule is not liable for discriminatory conduct. An employer `"may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason."' [Citation.]" (Damon v. Fleming Supermarkets, Inc. (11th Cir. 1999) 196 F.3d 1354, 1363, fn. 3.) "Thus, to establish pretext, the employee must show more than facts establishing that he or she did not commit the work rule violation. The employee must point to evidence which raises a question as to whether the decisionmaker, in fact, knew that the violation did not occur and, despite this knowledge, fired the employee based upon the false premise of an alleged work rule violation." (Sweeney v. Alabama Alcoholic Beverage Control Bd. (M.D. Ala. 2000) 117 F.Supp.2d 1266, 1273.) This Ching did not do. Moreover, even if individually any of these incidents did not warrant termination, it is not necessarily the case that termination based on all of them is indicative of racial pretext, and Ching did not offer any specific evidence of racial animus to demonstrate an improper motivation for his termination. The summary judgment was properly granted with respect to these two causes of action.
On appeal, however, Ching contends that the court erred. With respect to discrimination, Ching asserts in a footnote that he was the only Pacific Islander in the security staff at Warner Bros. He does not, however, offer any citation to the record to show that evidence to this effect was presented to the trial court, and we note that the trial court specifically observed that Ching produced no evidence to support this assertion. Ching contends that Sidell made "disparaging remarks to Mr. Ching about his background (his name)." The evidence to which he refers is a conclusory statement in his own declaration, "Ms. Sidell made disparaging remarks and innuendoes about my name, `Wilkins,' as if Pacific Islanders were not allowed to have Caucasian names." No further detail is provided to permit any court to conclude whether her statement or statements were in fact indicative of racial animus. Ching has not shown that he offered evidence of any disparaging remarks about his race or his name.
Ching contends that the evidence shows that Warner Bros. knew that each of the accusations against him was false before it fired him, but that it fired him anyway. First, he contends that he produced evidence that the claim he had improperly obtained an autograph was false and that Warner Bros. "knew that he had did not ask for an autograph because the accusation was dropped over a year before he was fired." Overlooking the fact that Ching does not identify where in his responsive statement he presented this fact and supporting evidence, we have reviewed the supporting evidence he cites to this court, handwritten notes pertaining to that incident. Those notes do not support Ching's characterization of the event. Although the decisionmaker concluded that Ching had not asked for the celebrity's autograph, it was found that "it was inappropriate of you, esp. as sec. personnel, to make the comment that your granddaughters adore her. [¶] talent has no choice but to go in and out of our gates—sometimes they don't want to talk. [¶]
Next, Ching contends that Warner Bros.'s claim that he was fired for bribing one of the schedulers was "dropped" because it knew that the ostensible bribe was a wedding gift. But the evidence to which Ching directs this court is a specific denial by Warner Bros. that Ching was fired for attempting to bribe the engaged employee and a statement that the evidence was not completely conclusive that Ching was engaged in an attempt to bribe him. Ching does not cite to any evidence that the matter was "dropped" because he did nothing wrong. His evidence shows instead that Warner Bros. could not be entirely sure that he was engaged in bribery of the engaged employee, and that it was the other gift—the money given to the other scheduler—that Warner Bros. was sure was intended to secure favorable assignments and so formed the basis for the termination. Ching has not established any error here.
Next, he contends that Warner Bros.'s claim that he was fired for bribing the other scheduler was a pretext, because the recipient was suspended for taking the gift but he was terminated for giving it. Ching, however, does not acknowledge or address the evidence showing that he had an improper motivation in giving the gift to that recipient; that the recipient did not know of that motivation; and that her suspension was not for taking a bribe (because she was planning to return the money when she saw Ching next) but for failing to report Ching's inappropriate behavior to her supervisor. As we have discussed above, Ching did not establish disparate treatment or pretext with these assertions.
Ching claims he presented evidence that he had permission to take water from the film set and that therefore discipline on this basis was "known to be false and a pretext," but the evidence to which he refers this court post-dates Ching's resignation and does not establish that Warner Bros. or Sidell was notified that Ching had permission to take the water before Ching was forced to resign. He makes an extensive series of allegations concerning pretext and the sandwich incident, but they are not supported by the evidence on which he relies. Ching contends that Warner Bros. knew that it was falsely accusing him of taking a sandwich but that it had gone back to Santana—whom he labels a "convicted felon" without any reference to evidence to support this assertion—and "induced him to falsify his 2005 statement and `recant' his admission that he asked Mr. Ching to get him a sandwich." Ching invites the court to compare the earlier statement by Santana with his later statement, but in doing so we find that Ching has offered no evidence that Warner Bros. knew the accusation to be false or that Santana was lying when he explained that Ching had never asked him for food but that he had tried to assist him by claiming that he had. Ching has not presented any evidence that the sandwich incident was a pretext.
Finally, Ching also claims that Warner Bros.'s claim that he was insubordinate because he discussed the investigation despite having been instructed not to do so was also a pretext for firing. In his opening brief, Ching claims that Warner Bros. employee Brad Farrell called him at Warner Bros.' instigation but that he refused to discuss the investigation. In the portion of his responsive separate statement concerning Farrell, however, Ching merely wrote, "Deny that Ching had done anything wrong. The accusations were a pretext. [Citation.] [¶] Also, illegal violation of public policy: Ching is entitled to speak to witnesses or persons to defend against accusations. [Citation.]" These conclusory assertions fail to establish a disputed issue of material fact. To support his denial, Ching cites to paragraphs in his supplemental declaration in which he recounts out-of-court statements allegedly made by Farrell to Ching and to Farrell by Warner Bros.'s attorney. This evidence—statements other than those made by a witness while testifying at a hearing, offered to prove the truth of the matter stated—is hearsay. (Evid. Code, § 1200.) Although it is not clear from the record that this evidence was objected to or what became of the hundreds of evidentiary objections made in conjunction with the summary judgment motion, the evidence set forth by Ching violates the hearsay rule and as inadmissible evidence cannot provide a basis for reversing the summary judgment. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120 ["A motion for summary judgment must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken"].)
Ching then claims that another employee who violated the confidentiality rule was not terminated or disciplined, but he has not shown that he was similarly situated to that employee. In fact, the evidence to which Ching directs this court is deposition testimony in which Sidell explains that Warner Bros. learned that the other employee misunderstood the directive, but Ching understood perfectly: the other employee "thought he was only supposed to not discuss the fact we were investigating. He didn't understand that he couldn't still complain to people about" the underlying issue with which he was dissatisfied. In contrast, Ching understood that he was not supposed to have engaged in the conversation he held. This evidence does not tend to demonstrate that there exists a triable issue of material fact as to disparate treatment or that the reasons given by Warner Bros. were pretexts for racial discrimination.
Ching next argues on appeal that Warner Bros. argued that there was no disparate treatment and that "it allegedly fired three other employees for taking property," and he goes on to argue about the absence of evidence and Warner Bros.'s alleged refusal to provide requested evidence on this issue. We do not find any reference to Warner Bros.'s treatment of other, unnamed employees in Warner Bros.'s separate statement of undisputed material facts, and Ching does not offer any citations to the evidence to permit us to discover where this argument was allegedly made. While we perform a de novo review of summary judgments, it is always the appellant's burden on appeal to demonstrate that the trial court erred, and here Ching has not offered sufficient argument or reference to the record to permit us to evaluate this argument. (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649 (Boyle) [party asserting trial court error may not rest on the bare assertion of error but must present argument and legal authority on each point raised].)
Ching then attacks some evidence produced by Warner Bros. that other set watch workers were of a Pacific Islander background, contending that he could not verify the information because the individuals' names had been redacted. Ching does not explain how this tends to establish any error in the summary judgment, nor are we aware of any manner in which it does.
Ching next argues that he was entitled to bring forth evidence to show that Warner Bros.'s reasons for firing him were pretextual, relying on a large number of cases that stand for the proposition that summary judgment is improper when there is a disputed issue of material fact as to whether the stated reasons for employment termination were pretextual. We do not doubt this legal proposition, but Ching merely conclusorily asserts that he "did then bring forth credible evidence to show that there was no real basis for Ms. Sidell's alleged `belief'" in the accusations made against Ching and that the reasons were therefore pretextual. As explained above, we have concluded that Ching did not demonstrate that disputed issues of material fact existed as to whether the reasons for the termination were pretextual.
Ching argues that evidence of Warner Bros.'s discriminatory actions toward other employees is also evidence that he was discriminated against. His evidence of discrimination is the following statement in a declaration from another Warner Bros. employee: "I believe Ms. Sidell was prejudiced against Mr. Ching because of his national origin because she was prejudiced against minorities, i.e., she was prejudiced against me because I am a lesbian. She repeatedly criticized me for being openly gay and not hiding my lesbian relationship at work." We, like the trial court before us, find the conclusion, that because a person exhibits bias on the basis of sexual orientation he or she must also be racially biased, to be speculative. This purported evidence does not serve to create a triable issue of material fact as to whether Sidell, or Warner Bros., acted with racial animus.
The trial court properly granted summary judgment with respect to the first two causes of action.
With respect to the causes of action for breach of implied contract and bad faith, Ching contends that the termination breached an implied contractual obligation that he would not be terminated without good cause; and that the termination was a bad faith breach of an implied covenant to deal fairly and in good faith with him.
As Ching was a member of the Studio Security and Fire Association and his employment was covered by a collective bargaining agreement between Warner Bros. and his union, the trial court held that section 301 of the Labor Management Relations Act (29 U.S.C. § 185) preempted his claims. Section 301 preempts all state law claims that are substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract. (Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202, 220 (Allis-Chalmers).) Here, for the trial court to determine whether there was a violation of an implied contractual obligation that Ching would not be terminated without good cause and whether the termination was a bad faith breach of an implied covenant to deal fairly and in good faith with him, preventing Ching from enjoying the benefits of the implied contract, would require analysis of the terms of the collective bargaining agreement. Therefore, any rights to continued employment or to good faith and fair dealing are "inextricably intertwined" (id. at p. 213) with the rights and obligations conferred by the collective bargaining agreement that covered Ching's employment, and the causes of action are preempted by federal law. (Id. at p. 220.) Accordingly, the claims "must either be treated as [] § 301 claim[s], [citation], or dismissed as pre-empted by federal labor-contract law." (Ibid.) The court properly granted summary judgment with respect to these causes of action. Ching has not established any error here.
Ching's cause of action for defamation was based on the termination letter issued by Warner Bros. on September 12, 2005, which he admitted he learned of and received in September 2005. Ching did not file suit for defamation until July 2007, well beyond the one-year statute of limitations applicable to defamation claims. (Code Civ. Proc., § 340, subd. (c).)
Ching claims that the statute of limitation on his defamation claim was tolled while he pursued administrative remedies for his discrimination claim, but Ching remained obligated to proceed on his claims that were not part of the administrative process and there is no equitable tolling here. (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1189 ["the putative plaintiff is not in any way disadvantaged by having to file his or her nonstatutory claims before receiving a right-to-sue letter from the DFEH and, therefore, there is no basis for recognizing equitable tolling in this situation"].) The cases on which Ching relies to support his contrary argument are inapposite. In Clemes v. Del Norte County Unified School District (N.D. Cal. 1994) 843 F.Supp. 583, not followed in Maynard v. City of San Jose (9th Cir. 1994) 37 F.3d 1396, 1403, the statute of limitations on a federal civil rights claim was tolled during the administrative proceedings on that same federal civil rights claim; there was no claim not subject to administrative proceedings to be considered. Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941 concerns accrual of private rights of action, not equitable tolling. Elkins v. Derby (1974) 12 Cal.3d 410 stands for the proposition that the statute of limitations on a personal injury action is tolled while the plaintiff pursues his worker's compensation remedy, and does not discuss tolling for claims not subject to the administrative process.
Ching argues, "The trial court's grant of summary adjudication as to Mr. Ching's claims for intentional and negligent infliction of emotional distress (Mr. Ching's Sixth and Seventh Causes of Action) on the grounds that those claims are preempted by [] California's Workers Compensation Act [citation] is wrong." He further contends that the trial court erred in deciding that the emotional distress claims are barred by the exclusive remedy provision of workers' compensation law and that there is no merit to the trial court's decision that Ching had not alleged severe emotional distress.
An examination of the trial court's ruling, however, shows that the trial court did not rule on these asserted grounds. The trial court granted summary judgment with respect to these claims because they were based on the same conduct alleged in the First, Second, and Fifth Causes of Action, "and therefore fail on the same grounds; i.e., Plaintiff has failed to show discrimination and has failed to dispute Defendant's assertion of the `interested persons' privilege. Plaintiff has not demonstrated a disputed issue of fact." Ching does not argue any error in the real basis for the court's decision. "If an appeal is pursued, the party asserting trial court error may not then rest on the bare assertion of error but must present argument and legal authority on each point raised. [Citation.] This latter rule is founded on the principle that an appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness. [Citation.]" (Boyle, supra, 137 Cal.App.4th at pp. 649-650.) "No reasons being assigned or set forth in the brief why the rulings of the court were not correct, it is not incumbent upon an appellate court to look for reasons." (Brown v. Brown (1930) 104 Cal.App. 480, 489.) Ching has failed to assert any error in the court's actual ruling, and as such has forfeited this issue on appeal.
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur:
PERLUSS, P. J.
WOODS, J.
