Demps v. San Francisco Housing Authority

Opinion

Paraphrasing Alexander Pope, a court “should never be ashamed to own [it] has been in the wrong; which is but saying, in other words, that [it] is wiser today than [it] was yesterday.” (Swift, Thoughts on Various Subjects in Miscellanies in Prose and Verse (1727) vol. I, p. 340.)

We write today to “own” that the procedure we approved in Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 [ 267 Cal.Rptr. 819 ] (Biljac) was wrong. There, in affirming a summary judgment, we held that a trial judge need not rule on each evidentiary objection, but could preserve the record by simply stating that “ T am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible.’ ” {Id. at p. 1419, fn. 3.) Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Court cases and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge’s failure to rule on properly presented objections results in their being waived, the effect of which is that the objected-to evidence is in the record for purposes of appellate review.

The trial judge here expressly stated that he was relying on Biljac, and went on to grant summary judgment for defendants San Francisco Housing Authority (Housing Authority) and Michael Roetzer, its administrator. We must thus determine, on our independent review, whether that summary judgment was correct in light of all the evidence in the record. We conclude that it was, and we affirm.

I. BACKGROUND

A. Demps and His Employment

Plaintiff Sherman Demps, Jr., is an African-American man, bom in 1948; he was 57 years old when the events leading to this lawsuit took place. Demps has an associate of arts degree from San Francisco City College,

Following honorable service in the military, Demps had a broad employment background, working for United Airlines, various restaurant chains, and security firms. In 1994 Demps began employment with the Housing Authority as a security officer. In April 1996 he became a resident custodian at 1880 Pine Street (1880 Pine), a housing complex owned and operated by the Housing Authority, whose occupants are senior citizens and disabled people. Demps remained in that position until the Ml of 2002, when he was terminated.

The Housing Authority entered into a memorandum of understanding with Service Employees International Union, Local 1877, of which Demps was a member in good standing. Apparently this memorandum governed the relationship between the Housing Authority and the union members, including custodians, but no issues are presented in connection with it.

The full range of Demps’s duties at 1880 Pine were described in a job description introduced by him, included among which was that he “move and set up furniture and equipment.” As distilled in the declaration of Ignatius Leonor, the Housing Authority district director for district 3, Demps was responsible for performing a full range of custodial tasks, including picking up papers, garbage, and other rubbish, washing and cleaning stairways and hallways, inspecting the building and grounds for vandalism and unsafe or unhealthy conditions, and reporting evidence of problems with Housing Authority property or equipment.

As a condition of his employment as resident custodian, Demps was required to occupy a unit at 1880 Pine, though he was not under any lease. Under the memorandum of understanding, he was required to be available to the Housing Authority five days a week, 24 hours per day. He was also required to use Housing Authority property only for authorized activities in connection with his official duties. And Demps admitted—it was undisputed, he responded—that-as “a resident custodian [he] occupied a position of trust because he had direct contact with disabled and elderly residents and had access to their occupied residences.”

Demps’s declaration in opposition to the motion for summary judgment stated that he was “never informed by [his] supervisor, Ignatius Leonor, or anyone else at any time that [he] was not performing [his] job in a competent manner.” No directly contrary evidence was introduced by the Housing

Bray was a Caucasian woman in her fifties, and had been a tenant at 1880 Pine before Demps began his employment there.. And to put it mildly, she and Demps did not get along. Demps’s declaration describes their relationship as follows: “11. Almost from the very beginning of my employment as Resident Custodian at the 1880 Pine Street address, I began experiencing extraordinary nonstop harassment and extreme abuse by Linda Bray, a white female tenant there. That egregious harassment continued throughout the full term of my employment with the full knowledge of and aided, abetted and encouraged by defendants Michael Roetzer and the San Francisco Housing Authority. [¶] 12. Linda Bray’s abhorrent abuse over the several years of my employment, included but was not limited to false and malicious complaints to my supervisors relating to my work performance and conduct, constant harassment of persons visiting my unit, abusive verbal and physical attacks upon my roommate, continuously confronting me in a hostile, provocative manner, constantly addressing and referring to me as a ‘pimp,’ ‘drug dealer’ and ‘pimping drug dealer,’ continuously filing false police reports against me, necessitating my filing a civil action for defamation against her. [][] Linda Bray also constantly without cause confronted tenants in the building in a hostile threatening manner with a variety of baseless accusations.” Demps’s declaration attached copies of documents reflecting what he called “the endless stream of harassment conduct by Linda Bray,” and went on to state that he had “copies of 100 or more documents including false police reports, and vexatious civil actions reflecting the abuses of Linda Bray against me and others.”

There was no declaration from Bray. However, Michael Roetzer and the Housing Authority’s (when referred to collectively, defendants) reply to Demps’s statement of material facts, citing various portions of Demps’s deposition and his response to defendants’ own separate statement, responded as follows: “With respect to Linda Bray, at no time did Demps make a complaint about an unlawful employment practice under the FEHA. Nor did he ever complain about Linda Bray to Michael Roetzer. [Citation.] Demps conceded that Linda Bray’s comments were racially neutral. [Citation.] ... He has provided no evidence that Linda Bray harassed people based on their age, race, sex, or any other protected classification. Most notably, Demps believes that Linda Bray’s conduct was motivated not by his

Beyond the rather conclusory recitations quoted above, the actual facts involving Bray can be gleaned only from certain of the documentary evidence introduced by Demps himself. These exhibits included numerous police incident reports (most of which were complaints by Bray and one a complaint against Bray) and an order from the San Francisco Superior Court on a petition for injunction prohibiting harassment brought by Bray, but which resulted in an injunction against her.

Demps’s documentary evidence also included four letters he wrote, on April 13, 1999, an unspecified date in January 2000, August 7, 2000, and May 31, 2001. The first of these letters, to Housing Authority Property Manager Henry Khan, responded to the charge by Bray that Demps called her a “bitch.” And the third letter confirmed that Demps had been advised by Khan that “there was nothing he could do” about Bray. Interestingly, and as particularly pertinent to the issue here, in that third letter Demps referred to “someone complain [szc] about me that I was bringing in homeless people to work for me.” This, as noted, was in August 2000.

However bad the relationship between Demps and Bray had been, it sunk to its nadir in July 2002 when Bray accused Demps of attempting to kill her. The details of the alleged crime are nowhere in the record, nor are the details of the actual proceedings filed. What is in the record is Demps’s declaration testimony that at some point “the District Attorney’s office subsequently terminated that unfounded criminal case against [him] and dismissed the case.”

The criminal charge of attempted murder caused the Housing Authority to investigate, in the course of which it learned information that would lead to the termination of Demps’s employment. What precisely occurred in connection with this investigation is, like so much of the story here, not in the record. Whatever it was, something occurred which generated a 10-page handwritten letter from Demps dated September 23, 2002. The letter was addressed to District Director Leonor, and its subjects were “Ms. Linda Bray, # 606 [and] Johnny Celestine.” What that letter revealed was described by Leonor in his declaration in support of defendants’ motion: “Demps admitted he paid neighborhood panhandler and known drug-user Johnny Celestine to move furniture out of the hallways at the senior and disabled housing

What occurred next is again not in the record, but as best we can determine from Demps’s evidence, Leonor prepared a memorandum dated October 4, 2002, which, according to Demps, proposed “the termination of [his] employment.” The memorandum was not introduced below, and what we know of it is yet again from Demps. According to him, the memorandum proposed the termination of his employment because he was “guilty of ‘acts of gross misconduct; unauthorized use of Housing Authority property; dishonesty, unsatisfactory job performance; conduct that reflect [sic] negatively on the Housing Authority; and non-compliance with Authority Safety Standards.’ ”

Elaborating on those charges, and at the same time taking issue with them, Demps’s declaration went on: “said blatantly false and fabricated accusations were charged as: a. Failure to Perform Assigned Work and Unauthorized Use of Housing Authority Property. In pertinent part, said charge falsely states that I hired Johnny Celestine, a panhandler to perform my job duties at 1880 Pine Street, three nights per week for the past two years, and that I gave him $15.00 to $30.00 each night to sweep and mop floors, set up tables for meetings, and clean stairwells. Such charges are completely false and unsupported as already referred to in paragraphs 17, 18 and 19 above, [f] b. Gross Negligence and Non-Compliance With Authority Safety Standards. This charge knowingly and falsely presents the misleading and [sic] statement that I allowed a known drug user, Johnny Celestine, access to said premises when in fact my supervisor was always cognizant of the presence of Celestine in the neighborhood even before I became employed at 1880 Pine. Celestine was known to most of the tenants who trusted him and who often had him do odd jobs for them, including Linda Bray. Celestine never harmed anyone while providing needed services to" tenants at their request. [][] Thusly, the charge here of Gross Negligence and Non-Compliance with Authority Safety Standards is fabricated and ludicrous. [][] c. Conduct that Reflects Negatively on the Housing Authority. The sole .basis for this equally false and ludicrous charge is that at some time and place I addressed Linda Bray as a ‘bitch’ to her face and also referred to her as same when speaking to Celestine. • [][] Such charge is absolutely false and unsupported. I have at no time addressed or referred to Linda Bray or any other tenant as a ‘bitch.’ [f] d. Making False Statements During An Official Investigation.- The charge that I made false statements during an investigation is absolutely false and as ludicrous as the above fabricated charges against me. At no time have I ever made a false

In December 1993, the California Supreme Court decided Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 [ 25 Cal.Rptr.2d 137 , 863 P.2d 207 ] (Ann M.), also an appeal from a summary judgment for the defendant, this in a premises liability case. The substance of the opinion begins with the following observation: “This case arises out of a civil complaint filed by Ann M. after she was raped at her place of employment. Unless otherwise indicated, the facts as stated herein are not in dispute.” (Id. at p. 670.) Footnote 1 in Ann M. states, “In the trial court, defendants made a series of objections to evidence submitted by Ann M. in opposition to the summary judgment motion. The trial court did not rule on the objections. Because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal. (Code Civ. Proc., § 437c, subds. (b) & (c); Golden West Baseball Co. v. Talley (1991) 232 Cal.App.3d 1294 , 1301, fn. 4 [ 284 Cal.Rptr. 53 ]; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530 , 1540 [ 270 Cal.Rptr. 198 ]; Haskell v. Carli (1987) 195 Cal.App.3d 124 , 129-132 [ 240 Cal.Rptr. 439 ].) Although many of the objections appear meritorious, for purposes of this appeal we must view the objectionable evidence as having been admitted in evidence and therefore as part of the record.” (Ann M., supra, 6 Cal.4th at p. 670, fn. 1.) No reference was made to Biljac.

The Supreme Court affirmed this principle in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181 , 1186, footnote 2 [ 91 Cal.Rptr.2d 35 , 989 P.2d 121 ] (Sharon P.), disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 , 854 [ 107 Cal.Rptr.2d 841 , 24 P.3d 493 ]. Again, however, there was no reference to Biljac.

The first published case to so hold was Laird, v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727 , 736 [ 80 Cal.Rptr.2d 454 ], where, without mention of Biljac, the Court of Appeal held that “[t]he trial court’s statement that it had considered only admissible evidence was not an implied ruling sustaining unspecified evidentiary objections. On the contrary, Ann M. teaches that we must take this statement as an implied overruling of any objection not specifically sustained. Thus we must deem the substance of paragraphs 2 through 4 of Laird’s declaration, as to which the trial court did not expressly rule, admissible and may not consider Cap Cities’ renewed objections thereto.”

City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780 [ 97 Cal.Rptr.2d 140 ] (City of Long Beach) came next. There, citing and quoting Sharon P. and Ann M., Presiding Justice Turner noted that “[(typically, when a trial judge fails to rule on summary judgment or adjudication motion evidentiary objections, the California Supreme Court has held that the objections are deemed waived on appeal.” (Id. at p. 783.) Then, citing cases beginning in 1872 holding that failure to rule on evidentiary objections deems them waived, he noted that Sharon P. and Ann M. were “merely the application of the trial rule concerning waiver of . . . objections in the law and motion context.” (City of Long Beach, supra, 81 Cal.App.4th at p. 784.)

Despite that, Justice Turner went on to note that defense counsel had twice orally requested that the trial court rule on the written objections, yet the court failed to do so. And, he held, where the court neglects to rule on objections despite repeated requests by counsel, there is no waiver and the objections are preserved on appeal. (City of Long Beach, supra, 81 Cal.App.4th at pp. 784-785.) The unpublished portion of the opinion went on to affirm the summary judgment, presumably first ruling on the objections to evidence.

The next case was Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225 [ 114 Cal.Rptr.2d 151 ], where the Court of Appeal devoted more than three pages to a discussion on why it disagreed with Biljac. (Id. at pp. 234-238.) The court explained: “Because it is not the function of an appellate court to make such evidentiary rulings in the first instance, we disagree with the approach set out in Biljac, supra, 218 Cal.App.3d 1410 to the extent it fosters the fiction that a trial court’s failure to rule on evidentiary

Kline, P. J., and Haerle, J., concurred.