Filed 10/26/22 City of Santa Monica v. Superior Court CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CITY OF SANTA MONICA,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

BRIDGET CADE,

Real Party in Interest.

 B316941

 (Los Angeles County

 Super. Ct. No. 20STCV11832)

ORIGINAL PROCEEDING; petition for writ of mandate. 

Michelle Williams Court, Judge. Petition granted.

Liebert Cassidy Whitmore, Jennifer M. Rosner and Jolina 

Abrena for Petitioner.

No appearance for Respondent.
2

Equal Rights Law Group and Mika Hilaire for Real Party 

in Interest.

___________________________________________________

Petitioner, City of Santa Monica (City), is the defendant in 

a lawsuit brought by a longtime employee, plaintiff and real 

party in interest Bridget Cade, for alleged discrimination, 

retaliation, and related wrongs. In this writ of mandate 

proceeding, the City properly challenges a trial court ruling 

denying summary judgment. We conclude that, because the City 

showed its reasons for subject employment-related decisions were 

legitimate and nonretaliatory, and because Cade failed to counter 

the showing, summary judgment should have been granted.

BACKGROUND

Underlying facts

Following the filing of the City’s petition for writ of 

mandate we issued an alternative writ of mandate, directing the 

trial court to either enter a new order granting summary 

judgment or show cause why it should not be ordered to do so. 

The trial court ultimately declined to grant summary judgment. 

When the Court of Appeal issues an alternative writ or order to 

show cause, the real party in interest may file “a return by 

demurrer, verified answer, or both.” (Cal. Rules of Court, rule 

8.487(b)(1).) Cade failed to file a return in this court, and the 

petition’s allegations are therefore accepted as true. (Code Civ. 

Proc., §§ 1089, 1094; Agricultural Labor Relations Bd. v. Superior 
3

Court (2016) 4 Cal.App.5th 675, 681-682; Bank of America, N.A. 

v. Superior Court (2013) 212 Cal.App.4th 1076, 1084-1086.)1

Cade, who is African-American, has worked for the City 

since 1999. She has held the same position, administrative 

services officer in the City’s transportation department, since 

2012.

In July 2017, Cade failed to report to the City’s human 

resources department that another employee made a complaint of 

sexual harassment. It was determined that reporting the 

complaint fell within Cade’s scope of work duties, and, for failing 

to make the report, Cade received a written reprimand. Cade did 

not agree with the discipline and sent an internal appeal letter in 

August 2017. That appeal was denied, and, in June 2018, Cade 

(through her attorney) sent another letter making a similar 

request. The reprimand appears to have never been rescinded.

Beginning in January 2018, Cade applied to four different 

open positions in the City’s human resources department, 

positions she characterized as potential promotions. She was not 

chosen for any of the four positions. These denials formed the 

basis of Cade’s lawsuit against the City.

1 Prior to issuance of the alternative writ, Cade filed a 

preliminary opposition to the City’s writ petition in response to a 

request by this court. Even if we were to consider this 

preliminary opposition a valid substitute for a proper return 

(which it is not), it would make scant difference. Our review of 

the record—independent from the petition’s allegations—reveals 

no material disputes relevant to the limited issues necessary to 

resolve this petition.
4

The City’s motion for summary judgment

Cade’s operative complaint against the City pled four 

causes of action: (1) discrimination in violation of the California 

Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 

et seq.), (2) retaliation in violation of FEHA, (3) a derivative claim 

of failure to prevent discrimination and retaliation, and (4) 

violations of the equal pay statute (Lab. Code, § 1197.5).

Cade eventually dismissed her equal pay claim, and so, 

with the third cause of action being derivative, the City’s motion 

for summary judgment (or, in the alternative, summary 

adjudication) primarily focused on the first two causes of action. 

With respect to the first cause of action, Cade alleged that she 

was passed over for the four open positions because she is a 

woman and African-American. (Although the record is not 

entirely clear on this point, it appears that not one of the four 

open positions was filled by an African-American candidate, and 

three of the four were filled by men.) Cade’s second cause of 

action alleged that the City retaliated against her because she 

challenged the written reprimand she received in July 2017. The 

retaliation that Cade allegedly suffered was not being hired for 

any of the four open positions.

In moving for summary judgment, the City presented 

evidence regarding the interview and selection process for the 

four open human resources positions. This evidence included the 

factors considered in filling each open position, including the 

experience and qualifications deemed important. For each of the 

positions, evidence was presented regarding why an individual 

candidate was selected. The City’s reasons for choosing 

applicants other than Cade focused on their respective 

qualifications.
5

According to the City’s evidence, one applicant was better 

prepared for the employment interview than Cade, answered 

interview questions more directly, was more familiar with 

modern human resources trends, and incorporated prior human 

resources experiences into proposed strategies for the division. 

Another candidate had solid experience in a broad range of 

human resources functions, including a strong knowledge of an 

important recruiting software, and appeared to have good 

supervisory skills. The candidate for another position, who 

received the highest total score from the interview panel, had a 

law degree and had served as lead negotiator in labor 

negotiations. The candidate chosen for the fourth position 

likewise received the highest total score from the interview panel

and had desired experience in classifications, compensation, and 

staff development. In contrast, according to the City’s evidence,

Cade received lower scores, was less focused in interviews, and 

did not have the breadth of relevant experience or educational 

background. The City employees who ultimately decided whom 

to hire for the four positions each declared that Cade’s race and 

gender were not considered in the hiring process, nor were her 

disciplinary history or related appeals.

In opposing the City’s motion, Cade failed to produce 

substantive evidence. She provided no evidence refuting the 

City’s stated reasons for its employment decisions or showing 

that the decisions may have been pretextual. Instead, Cade flatly 

asserted, without reference to supporting evidence, that the 

hiring process was subjective, that her application was not 

adequately considered, that she had relevant experience, and 

that the rejections were due to her race and because she 

challenged the written reprimand.
6

In November 2021, the trial court granted summary 

adjudication as to Cade’s fourth case of action, for violation of 

equal pay requirements, but denied summary adjudication as to 

the other three causes of action. Following the City’s timely writ 

petition, we issued the alternative writ of mandate. In response, 

the trial court amended its ruling in May 2022, in part, by 

adjudicating the first cause of action, for discrimination in 

violation of FEHA, in favor of the City. The court found that the 

City “met its burden of showing a legitimate business reason for 

the adverse employment actions,” and that Cade’s argument in 

response lacked “evidentiary support.” The court, however, 

declined to summarily adjudicate the second cause of action, for 

retaliation, or the derivative third cause of action.

DISCUSSION

I. Writ review

Summary judgment must be granted if the papers show an 

absence of triable issues of material fact and that the moving 

party is entitled to judgment as a matter of law. (Code Civ. Proc., 

§ 437c, subd. (c).) A party challenging denial of summary 

judgment may do so by writ petition. (Id., subd. (m)(1).) “‘Where 

the trial court’s denial of a motion for summary judgment will 

result in trial on nonactionable claims, a writ of mandate will 

issue.’” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 

1255, 1259-1260.) We review a trial court’s decision on summary 

judgment de novo, determining independently whether the facts 

not subject to material dispute support summary judgment. (Id.

at p. 1260; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
7

II. Discrimination claim

In its revised May 2022 order, the trial court summarily 

adjudicated Cade’s discrimination cause of action, leaving 

retaliation as the last substantive claim. Because Cade’s 

remaining retaliation claim rests largely on the same set of 

material facts as her discrimination claim, we initially note that 

summary adjudication of the discrimination claim was 

warranted. As the trial court found, the City met its burden as 

the movant by “set[ting] forth competent, admissible evidence 

[citations] of its reasons, unrelated to . . . bias,” that it 

demonstrated a legitimate business reason for the claimed

adverse employment action (see Guz v. Bechtel National, Inc. 

(2000) 24 Cal.4th 317, 357 (Guz)), which was declining to hire 

Cade for any of the four open positions.

This showing shifted the burden to Cade. “[T]o avoid 

summary judgment, an employee claiming discrimination must 

offer substantial evidence that the employer’s stated 

nondiscriminatory reason for the adverse action was untrue or 

pretextual, or evidence the employer acted with a discriminatory 

animus, or a combination of the two, such that a reasonable trier 

of fact could conclude the employer engaged in intentional 

discrimination.” (Hersant v. Department of Social Services (1997) 

57 Cal.App.4th 997, 1004-1005 (Hersant).) As found by the trial 

court, Cade failed to offer such evidence. The trial court, 

therefore, properly granted summary adjudication of the 

discrimination claim.

III. Retaliation claim

In denying summary adjudication on Cade’s retaliation 

cause of action, the trial court, for unexplained reasons, did not 

apply the same analysis it employed in deciding the 
8

discrimination claim. Cade based her retaliation claim on 

allegations that the City retaliated against her for challenging 

the written reprimand by not hiring her for any of the open 

positions—the same claimed adverse actions as those underlying 

the discrimination claim. This commonality should have 

prompted the trial court to again determine whether the City 

demonstrated its employment decisions were legitimate and 

whether Cade then countered the showing.

Cade’s retaliation claim was brought under Government 

Code section 12940. FEHA prohibits employers from 

“discharg[ing], expel[ling], or otherwise discriminat[ing] against 

any person because the person has opposed any practices 

forbidden under this part or because the person has filed a 

complaint, testified, or assisted in any proceeding under this 

part.” (Gov. Code, § 12940, subd. (h).)

California courts follow a modified version of the burdenshifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 

U.S. 792 in resolving FEHA employment retaliation claims on 

summary judgment. (Glynn v. Superior Court (2019) 42 

Cal.App.5th 47, 55 (Glynn); Loggins v. Kaiser Permanente 

Internat. (2007) 151 Cal.App.4th 1102, 1109 (Loggins).) “In the 

first stage, the ‘plaintiff must show (1) he or she engaged in a 

“protected activity,” (2) the employer subjected the employee to 

an adverse employment action, and (3) a causal link existed 

between the protected activity and the employer’s action.’ 

(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If 

the employee successfully establishes these elements and thereby 

shows a prima facie case exists, the burden shifts to the employer 

to provide evidence that there was a legitimate, nonretaliatory 

reason for the adverse employment action. (Morgan v. Regents of 
9

University of California (2000) 88 Cal.App.4th 52, 68.) If the 

employer produces evidence showing a legitimate reason for the 

adverse employment action, ‘the presumption of retaliation 

“‘“drops out of the picture,”’”’ (Yanowitz, supra, at p. 1042), and 

the burden shifts back to the employee to provide ‘substantial 

responsive evidence’ that the employer’s proffered reasons were 

untrue or pretextual (Martin v. Lockheed Missiles & Space Co.

(1994) 29 Cal.App.4th 1718, 1735).” (Loggins, supra, 151 

Cal.App.4th at p. 1109.)

We assume, without deciding, that Cade made an initial 

prima facie case for FEHA retaliation. The burden thus would 

have shifted to the City to provide evidence of legitimate, 

nonretaliatory reasons for its employment decisions. (See 

Loggins, supra, 151 Cal.App.4th at p. 1109.) As found by the 

trial court in adjudicating the discrimination cause of action, the 

City met its burden. The City produced substantial evidence 

showing how the employment decisions at issue were made and 

what factors were considered. The City’s reasons for its decisions 

were, on their face, legitimate, and no retaliatory animus was 

apparent.

The burden therefore shifted back to Cade to offer 

substantial evidence that the City’s reasons were untrue or 

pretextual. (See Loggins, supra, 151 Cal.App.4th at p. 1109; 

Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.) In opposing 

summary judgment, the employee cannot “simply show the 

employer’s decision was wrong, mistaken, or unwise. Rather, the 

employee ‘“must demonstrate such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer’s 

proffered legitimate reasons for its action that a reasonable 

factfinder could rationally find them ‘unworthy of credence,’ 
10

[citation], and hence infer ‘that the employer did not act for the 

[. . . asserted] non-discriminatory reasons.’”’” (Horn v. Cushman 

& Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 (Horn), 

quoting Hersant, at p. 1005.)

Cade failed to provide evidence demonstrating weakness or 

incoherency in the City’s reasons for its hiring decisions. At 

most, through a declaration she submitted on her own behalf, 

Cade characterized the City’s hiring process as deficient because 

it should have considered her a better candidate than it actually 

did. But, even under her own narrative, Cade did not claim that 

she was a top candidate for any of the four open positions. 

Indeed, Cade failed to show that the City’s decisions were “wrong, 

mistaken, or unwise” (Horn, supra, 72 Cal.App.4th at p. 807), 

much less that they may have been pretextual. In short, Cade 

failed to raise a triable issue of fact that the City retaliated 

against her.

In Cade’s preliminary opposition to the mandate petition 

filed in this court, Cade argues that the “temporal proximity” 

between, on the one hand, her involvement in handling the 

sexual harassment claim and the subsequent reprimand and 

internal appeals, and, on the other hand, the City’s decisions not 

to hire Cade for any of the four open positions, shows that the 

City’s reasons were pretextual. This argument fails. While 

temporal proximity, by itself, may be enough to initially place the 

burden on the defendant to demonstrate legitimate reasons for an 

employment action, once the defendant makes that showing, 

temporal proximity is insufficient to raise a triable issue of fact 

as to pretext or untruthfulness. (Loggins, supra, 151 Cal.App.4th 

at pp. 1112-1113.) At most, temporal proximity can be a factor in 

establishing pretext if combined with other evidence. (Arteaga v. 
11

Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353-354.) That other 

evidence was sorely lacking here.

Cade also argues that the City gave “shifting reasons” for 

its decisions. While “shifting” justifications for an employment 

action can also be a factor in determining whether the action was 

untrue or pretextual (Guz, supra, 24 Cal.4th at p. 363), Cade did 

not adequately show how the City’s reasons for its decisions 

shifted. The evidence provided on summary judgment presented 

a consistent narrative of the City choosing the applicants that it 

deemed best qualified for the open positions. (See Horn, supra, 

72 Cal.App.4th at p. 815, quoting Nidds v. Schindler Elevator 

Corp. (9th Cir. 1996) 113 F.3d 912, 918 [reasons given by 

employer “are ‘not incompatible, and therefore not properly 

described as “shifting reasons,”’” when they involve the same 

central theme].) Cade’s statements that she was also a worthy 

candidate, and evidence that the City valued her as a longtime 

employee, do not establish shifting reasons.

Having failed to provide evidence tending to show that the 

City’s reasons for its decisions were untrue or pretextual, Cade 

did not meet her burden in opposing summary judgment. The 

trial court, therefore, erred by declining to adjudicate the 

retaliation cause of action in favor of the City.

IV. Failure to prevent claim

Cade’s further remaining cause of action, for failure to 

prevent discrimination and retaliation, is entirely derivative of 

her discrimination and retaliation claims. (See Featherstone v. 

Southern California Permanente Medical Group (2017) 10 

Cal.App.5th 1150, 1166; see also Glynn, supra, 42 Cal.App.5th at

p. 56.) Cade does not argue otherwise. Thus, the trial court 
12

erred by failing to adjudicate the cause of action in favor of the 

City and accordingly enter summary judgment.

DISPOSITION

The petition is granted. A writ of mandate hereby issues 

directing the trial court to vacate its orders denying the City’s 

motion for summary judgment and to enter a new and different 

order granting the motion for summary judgment. This court’s 

prior order staying trial court proceedings is dissolved. The City 

is entitled to its costs incurred in this writ proceeding.

CHAVEZ, J.

We concur:

LUI, P. J.

HOFFSTADT, J.