Cal Supreme Court Grants Review in Reid v. Google, Inc.

Last October the Sixth District Court of Appeal reversed summary judgment in an age discrimination case in Reid v. Google, Inc.(2007) 155 Cal.App.4th 1342 (now unciteable).  The decision, written by Justice Conrad Rushing, was chock full of all kinds of pro-plaintiff language, and really quite disparaging about the tendency of some courts to evaluate and weigh facts in ruling on summary judgment (a particular problem in the Federal Courts, but something we see in state courts as well).  The decision was particularly scornful of the "stray remark" doctrine, from which employers argue (and a few appellate courts have held) that an employee cannot successfully resist summary judgment with evidence that a supervisor made a "stray remark" manifesting a general unlawful discriminatory bias.  (Example:  Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809.)  As the court observed:

The so-called "stray remarks" rule allows courts to deem racist or sexist remarks insufficient to support denial of summary {Slip Opn. Page 20} judgment if the remarks are considered "stray." We cannot view such a rule as anything other than the assumption by the court of a factfinding role.

The decision also held that, when a party objects to evidence on summary judgment, if the trial court does not explicitly rule, it will be assumed to have decided only on the basis of competent, admissible evidence, following  Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 and declining to follow the more recent contrary ruling in Demps v. San Francisco Housing Authority (2007) ___ Cal.App.4th ___.

The Supremes have now granted a hearing, thus wiping the case off the books.  The statement of issues on review indicates that the Court will resolve the Biljac vs. Demps question, but is going to take a look at the "stray remarks" doctrine for good measure.

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