judgment should be granted is is there a triable issue of fact of pretext the employer asserts that ms young made an entry that she was told not to make on or ledger which indicated her rant was still f the court must conclude for summary judgment purposes that that entry was not made by her because she says she didn't do it now at trial the jury can evaluate her credibility but for summary judgment the court must believe or the case that says that is leslie versus group and in the act case the they say even if the court finds it implausible the court must believe the testimony in the issue is who made the entry the defendant says well mr jones who decided to fire ms young believes she made the entry but if he is the one who made  then a jury could reasonably conclude that he didn't believe it was her in fact if he made it it would be impossible for him to reasonably believe it was her and what is the evidence that he made it well first she didn't make it so but barrett's labor attorney who actually turned out to be a human resources manager but he apparently thought it was a labor attorney says that based on this entry the terminations is justified so there you have his and at the end of july she got her pay increase the e mail which mr jones wrote which is that one o nine in the excerpts of record mentions that's terms of the pay increase and reminded her that because there's been an increase in compensation that she no longer was to receive balance on september seventh yes he told her on september seventh that she would have to pay rent that one contradicted correct did she ever respond to those e mails she responded to verbal e but it doesn't matter for purposes of the case whether she responded or not the issue doesn't just point the other way your honor the evidence is that although it purports to say that user fifty five made the entry anybody who knew her password could have made the entry so if that doesn't mean that she made the entry and when you look at that mr johns e mail he sees this as a way to avoid discrimination liability and then we have mr miles who knew ms young don't believe i'm not positive i don't think i don't know i don't know so you know based on the whole pattern of evidence a jury could reasonably conclude that mr jones made the entry your increase was the illegal or one could reasonably conclude it was illegal because california law and we discussed this in our reply brief california law is very clear that a tenant has to be given sixty days written notice a rant increased and ms young had a landlord tenant agreement saying she was a month to month tenant and she did not get sixty days written notice of a rant to increase on september seventh now that we did file and if you want supplemental briefing on it we can do it but we did file a case in state court because remember judge armstrong dismissed the state claims involving the illegal rent increase without prejudice and we had a summary judgment motion in state court on this very issue of whether this went to increase was illegal or not and whether her terminations was arguably was a triable issue fact that it was illegal based on the illegal rent increase and the judge after looking at all the briefing denied summary judgment on that point so i think there's a very strong argument here that it was an illegal rent in certainly the court as a matter of law particularly in light of what the state court has said on this issue of state law should not hold that this rent increase was legal as a matter of law it means this fact that she's an employee doesn't matter civil code a twenty seven is plain language it's to ask if you're a tenant and you don't get a sixty day written you have to get sixty days written notice to have a rent increase over ten percent it doesn't say well there's an exemption here for employees the legislature could have made an exemption for employees but it didn't do that we had this issue in the state court ruled on it and the thought he could fire her based on the illegal rent increase because his e mail says barrett's labor lawyer who really turned out to be a human resources director says that that but that justifies the terminations and i'm concerned still sue for discrimination but will be ok based on this think you're in a point in your argument where you know repeated a few arguments which is fine you can use the time anywhere you wish  made although i think the rent issue is the heart of it there's the technical argument they say well mr jones didn't know she was pregnant when she was terminated  there's a jury could reasonably conclude that he did know that my client says she told mr bell of hearsay her immediate supervisor they have she was pregnant so that  he's decided to terminate her and he wants to be able to pay or final pay when she's terminated as is required by california law so there is a triable issue of fact and the jury could reasonably conclude that e mails and then she was fired three days later on the other issues the fair housing  there are certain technical arguments that the defendants make that are not relevant or that are are without merit they argue that the plant discriminatory plan never went into effect u s c three thirty six seventeen quote deals with a situation where no discriminatory housing practice may have occurred at all because the would be tenet has been discouraged from asserting his rights or because their rights have actually with american properties on this point they also state that this is discrimination against non english speaking people and that that's different from discrimination against speaking people are very largely hispanic then that is the case of discrimination against people because they're hispanic and we presented the evidence that virtually all the non english speaking ten here are hispanic the in the district court suggested well it's not necessarily discriminatory to have a marketing plan to attract english speaking tenants that doesn't necessarily mean you don't want to rant to not english speaking tenets but the answer to that is that one can infer from my client's declaration that in fact she speaking tenants to the napper properties so that we would not have to translate documents or deal with the city people or the media furthermore this court in monterrey mechanical versus wealth and said that advertising to target a specific group it's a in fact unlawful discrimination in that case the advertising was to target minorities and women and the court said that that was unlawful discrimination and here advertising to target english speaking people would also be unlawful discrimination furthermore it doesn't have to be illegal all she needs is a reasonable belief that she's opposing unlawful discrimination and they also state that u cost award we did not file a separate notice of appeal as to the cost of war but the only grounds for reversing the cost of war that were searching is that the summary judgment should be reversed and in that situation and it is not economic to force parties to file a separate notice of appeal costs the wards are often aren't very large and there's no practical reason to force parties to file a separate notice granted summary judgment and vacated all deadlines on may twenty seventh so we haven't had a chance to present our evidence and arguments on file or planning into the trial court if the case is really ended and will do that thank you i reserve the rest of my time regretted it for twenty five which is an e mail message in spanish the plaintiff authored and then ends my supplemental excerpts of record three forty eight through fifty one which is her deposition testimony about that explains very clearly what that e mail message meant and what she was saying in their now seeing as how it was in counseling last state law that she had to receive notice before the grant could be changed i beg your pardon jeffrey what about the state statute that requires notice before the rent increase that counsel referred to in opening argument well your honor that's a complicated issue of state law i think judge armstrong probably make the entry on the letter and planes council said yes that is enough i'm here to respectfully tell you that is not enough and that does create a tribal issue a fact as to whether or not she made the entry but we cited a case in our briefs the aloha island air case which says very clearly it doesn't matter if the employer is right or wrong when it believes that the employee is engaged in misconduct as long as it has a valid legitimate reason to reach that belief and in this case we do i mean she didn't pay her rent for august at lily young the benefit of the doubt and said all right maybe we misunderstood each other here now it's the beginning the september i want to start paying rent for september and october i'm going to reverse the entry on september you've got to pay rent for that and from here on out not only did she not pay rent for september she does not pay rent for october and in the middle of october for example it's going to get somebody else i should say somebody else that somebody has made this injury from what happened jones actually actually and legitimately invalidly believed that she did and that is the basis for the terminations which reminds me with regard to the pregnancy discrimination claim as i was looking at the evidence this morning the record struck me as indicating there's not a ground to affirm the summary judgment the undisputed evidence in the record shows that whoever made this entry did it on october fourteenth younger not tell anyone that she was pregnant till october fifteen and so therefore whoever made this entry in october fourteenth could not have are supposedly if it was jones or belly they did not have any knowledge that young was pregnant before that point so the pregnancy discrimination claim is the thing happened on the fourteenth the entry in decision to make to terminate her is made on the fifteenth and that's when she announces that she's pregnant clearly the event that led to her terminations occurred before the before anyone knew she was pregnant so they didn't have knowledge that they they couldn't have discriminated against or on that basis  record is that there's nothing in there that suggests that she ever opposed the rent increase and there's actually have and i have to look for it to find it but suggested expressly she never did say i'm not going to pay rent that's an illegal rent increase that's on lawful under california civil code eight o seven or whatever it is she never said that and so that's just one more reason for rick jones to legitimately believe on october fifteenth that she made this unlawful entry you know he tells her a few times very you have to start paying right now let's get on the program here and he finds this entry that indicates that she did parent when in fact she didn't she never told him hey i know i don't have to pay rent i'm opposing this he has no idea in the world that she's opposing it and so you know he just legitimately believes that this is her changing the thing to it to use what opposing counsel tries to make as a tribal issue of fact as to whether or not mr jones did this would be nothing more than rank speculation trash talking as you sat on a panel on a case called with a row where mate was challenging his first amendment rights because he said that the prison was inspecting mail and that you know he's got a free first amendment right to have his mail sen a prison shouldn't be inspecting what he writes well the reason for the inspection was to make sure that he wasn't standing contraband or inappropriate materials through the mail to harass public officials or whatnot and he said well you know it's of the first amendment violation for them to read my mail to read the content of my mail and that would probably be so but he didn't have any information to show that the prison officials had done that he just wanted to court to speculate that you know when you're looking at the mail to see if it's addressed correctly and that it doesn't have something in there that seems like contraband or inappropriate materials they have the opportunity to read it and so therefore we can speculate that they did and clearly a prisoner and his warden are natural adversaries if anyone would have a motive to perhaps do something like that maybe the warden would be even in  analysis and day from the sixth circuit and i would encourage this panel to resist that the ninth circuit's case was very clear that credibility determinations in the context of summary judgment are inappropriate the day court did that if the court were to be persuaded by day it should be confined to a situation where you're making that credibility decision because the tribal issue of fact is is developed by the by the circumstance that the person who's denying something is benign undisputed facts on the record facts that both parties agree are uncontested indisputable you have somebody doing that well then maybe you've got to start getting into credibility wane that when you have a party who simply opposes you know only that as i said earlier the event that led to her terminations happened before lansdale you found out that she was pregnant if penn has any other questions i'd be happy to answer them otherwise i would submit that there be a genuine issue of material fact as record to dispute that richard was reasonably believed that she did i mean when you had at the evidence he thought that he told her in july that you supposed to start making the pain rant maybe he did maybe he didn't you have to i suppose  really young word that he didn't tell her but he thought he did kind of september he sends an e mail on september seventh tells her all right apparently we're confused you have to start paying rent now though she still doesn't pay rent for september and then again in october doesn't pay rent she doesn't tell him she's not going to she doesn't tell him it's illegal for you to increase my rent she doesn't contest to refute it in any way she just lets rip jones think that she understands that she has to start paying rent but then she doesn't then on october fifteenth she discovers that somebody made an entry the day before on her account indicating that she paid rent he calls can miles to write he person and says how does this happen how can i figure out who did this he finds out you have this little she doesn't say i paid the rent you know she says oh i didn't make the entry but at that point is that a reasonable basis to the point i did make the injury yes but she didn't say i paid the rent and so  else employers and type of the believe the witnesses the fact that somebody can test whether or not something happened does not create a tribal issue of fact as to whether or not rich i was legitimately believed that she had done it even if she didn't do it he had a basis to believe that she did it even if she said she didn't she still didn't pay rent so he could think well she's saying she didn't do it but she doesn't offer any explanation as to how somebody got her past where somebody got in there and change this and furthermore if it was happen on the fifteenth to change it back to the date on the fourteenth that's an awful lot to give you a definite answer it's my understanding it would be the beginning of the month and in fact that's what it was in september she paid and made the entry before september seventh of september one i believe that's my understanding ok thank you very much for your argument here of all argument at this the part of the issue again is is there an issue of pretext and there plainly is it has to be believed as defense counsel conceded that ms young did not make the entry that's where we start so then who made it they have not  anyone else other than rick jones had a motive to make it and richard downes plainly did he wrote an e mail to the owner saying he wanted to fire her he said she's going to sue for discrimination but this will justify the discharge and further make anything that was not listed as a reason for granting summary judgment in their papers if it had been we would have mentioned it in our opposition in the court does not need to find that she made such a statement in order to reverse  judgment rick jones is an experienced manager in the property management business he knows california law civil code a twenty seven spelling out when you can increase the tenets when his basic california law and a jury could reasonably conclude that he knew full well that his rant increase was illegal and he felt like he had to have some other reason to justify that discharge and then he writes the e mail saying the labor lawyer says this gives manipulation of the ledger and i don't have that record site now but the out memo of nicole ralston stuck in lily against personnel file on the official trinity form is in the record and it only gives manipulation of the ledger as the reason so a jury could conclude in furthermore it would have been easy for mr jones to have made the entry and make it look like ms young made it your honour's haven't heard the witnesses you've read the the jury will listen to the witnesses they will listen to ms young they will listen to mr jones they will listen to mr miles who said i don't now i don't know when asked whether he gave mr johns the password and that is what our system is about a jury listening to the witness that is and deciding who to believe your honour's don't even if you have an opinion based on the briefs right now you don't know what your opinion would be after you listen to the witnesses and observe their demeanor this is a case where my client has a right to a jury to listen to the witnesses decide if she's telling the truth or if jones is telling the truth and clearly there is a triable issue of fact of pretext based on all the evidence thank you for your argument think well counsel for their argument the case just or you will be submitted for decision