Filed 5/27/21 Whitmer v. Farmers Insurance Exchange 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JASON WHITMER,

Plaintiff and Appellant,

v.

FARMERS INSURANCE 

EXCHANGE,

Defendant and 

Respondent.

 B305827

 (Los Angeles County

 Super. Ct. No. 

 BC684610)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Teresa A. Beaudet, Judge. Affirmed.

Thompson Law Offices and Robert W. Thompson; Holman 

Schiavone and Aiman A. Dvorak for Plaintiff and Appellant.
2

Tharpe & Howell, Christopher S. Maile, and Eric B. Kunkel 

for Defendant and Respondent.

* * * * * *

An employee of an insurance company sued his employer 

for discrimination and retaliation. When the employer moved for 

summary judgment, the employee dropped his discrimination 

claims but maintained that triable issues of fact on his 

retaliation-based claims warranted the denial of summary 

judgment. The trial court concluded there were no triable issues, 

and dismissed the employee’s retaliation-based claims. This was 

correct, so we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Jason Whitmer (plaintiff) was born in March 1968. He 

started working for Farmers Insurance Exchange (Farmers) in 

1991.

1 Plaintiff worked in its Pocatello, Idaho office. 

A. Plaintiff’s professional relationship with 

Kamala Wedding (Wedding)

In 2003 or 2004, plaintiff hired Wedding to work with him 

at Farmers. In the ensuing years, Wedding was promoted to be 

plaintiff’s peer and, by 2014, his supervisor. By 2013, however, 

plaintiff believed that he and Wedding had “different 

personalities and management styles.” 

B. Plaintiff’s layoff amid corporate restructuring

In 2014, plaintiff was employed as one of two division 

managers within Farmers’s Special Investigations Unit (the 

1 By stipulation of the parties, the Farmers entity 

responsible for any misconduct is Farmers Insurance Exchange. 

Thus, although plaintiff initially sued Farmers Insurance Group, 

Inc. as well, he eventually dismissed that entity.
3

Unit). At that time, the Unit had a director, two division 

managers and four zone managers. Wedding became the Unit’s 

director in 2015. 

In late 2015 and early 2016, Farmers restructured the 

Unit. As part of this restructuring, Farmers eliminated the two 

division manager positions and added a fifth zone manager 

position. Because this left two, higher-level division managers 

without jobs, Farmers decided to re-interview all interested 

employees for all five zone manager positions.

Wedding and others interviewed plaintiff for one of the 

zone manager positions in early February 2016, but did not select 

him for the position because Farmers “preferred” the position be 

based out of its Southern California office and plaintiff was 

unwilling to relocate from Pocatello. 

In a March 8, 2016 letter, Farmers informed plaintiff he 

had 60 days to line up a different job at Farmers before being 

terminated. 

C. Plaintiff’s hire for a different position at 

Farmers

In late March 2016, plaintiff applied for a position as a 

direct repair facility consultant that would allow him to remain 

in Pocatello. In late April, he was offered the position. 

On Farmers’s pay scale, the consultant position was four 

salary grades below the division manager position. This meant a 

salary cut from $120,659.14 to $96,900. Plaintiff later explained 

that he was aware that the new job “require[d him] to take a” 

“four salary grade demotion” and a nearly $30,000 “downgrade in 

pay,” but that he “took [it] in an effort to keep [his] employment 

with Farmers.” 
4

To soften the impact of this reduction in salary, plaintiff in 

late April or early May of 2016 approached Angela Smith 

(Smith), one of Farmers’s Human Resources Consultants, to ask 

if Farmers would be willing to implement a phased reduction in 

his salary rather than dropping it all at once. Farmers granted 

plaintiff’s request, allowing him to keep his $120,659.14 salary 

for one year; at that one-year mark (in May 2017), Farmers 

would drop his salary by $10,000; six months later (in November 

2017), Farmers would drop his salary by another $10,000; and six 

months after that (in May 2018), Farmers would drop his salary 

to the highest authorized salary in the salary grade for the 

consultant position. This arrangement was “memorialized” in a 

“Change in Employment Conditions” form.

Plaintiff formally accepted the consultant position on May 

4, 2016. Farmers thereafter reduced plaintiff’s salary according 

to schedule. 

D. Plaintiff’s internal complaint

On December 28, 2016, plaintiff lodged an internal

complaint with Farmers through a third-party administrator 

retained by Farmers to receive such complaints.2

In his internal complaint, plaintiff asserted that he was 

“treated unfairly and retaliated against” “in regard to the 

reorganization of [the Unit]” because Wedding “created location 

requirements for [the zone manager] position she knew [plaintiff] 

could not meet” in order to preclude him “from obtaining th[at] 

2 Although the operative complaint alleges that plaintiff 

initially lodged his internal complaint between “approximately 

Christmas 2015 and New Year’s 2016,” those allegations are 

inconsistent with the undisputed evidence and, as the trial court 

noted, would also render plaintiff’s claims untimely.
5

position.” Plaintiff set forth eight incidents that, in his view, 

established Wedding’s animosity toward him—namely, that (1) 

Wedding, in December 2013, met with plaintiff to tell him that 

his work group was “negatively affect[ing] her [work] group,” (2) 

Wedding became “upset” in late 2013 and early 2014 when 

plaintiff gave her a “candid peer evaluation” of her work, (3) 

Wedding again became “upset” in December 2015 when plaintiff, 

at the urging of Wedding’s supervisor, told Wedding that she was 

“overreacting to every issue brought to her attention,” (4) 

Wedding in December 2015 “threat[ened]” plaintiff that he would 

be rated poorly if he did not agree with Wedding’s 

recommendation to give one of plaintiff’s subordinates a lower 

evaluation rating, (5) Wedding in February 2016 gave plaintiff a 

performance rating of “building” (rather than “successful”) on his 

prior year’s work, (6) during the call on March 8, 2016, when 

Wedding informed plaintiff he would not be hired for a zone 

manager position, Wedding told plaintiff it would be “up to the 

Zone Managers” whether plaintiff could get another position at 

Farmers, (7) Wedding immediately pulled plaintiff off of his 

duties as division manager once he was not hired for the zone 

manager position, and (8) plaintiff got a call from another 

employee in June 2016 warning him not to “speak negative[ly]

about [Wedding].”

At no point in the internal complaint did plaintiff express 

or imply that he was discriminated against based on his age.

E. Plaintiff’s voluntary resignation

In October 2018, plaintiff voluntarily left Farmers.
6

II. Procedural Background

A. Pleadings

On November 22, 2017, plaintiff sued Farmers. After the 

trial court sustained a demurrer to plaintiff’s original complaint 

with leave to amend, plaintiff filed the operative, first amended 

complaint alleging claims for (1) discrimination in violation of the 

Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 

et seq.), (2) retaliation in violation of FEHA, (3) failure to prevent 

violations of FEHA, and (4) wrongful termination in violation of 

public policy.3

With regard to his retaliation claim, plaintiff alleges that 

Farmers retaliated against him for filing his internal complaint 

by “demot[ing him] a second time on May 1, 2017” and 

“demot[ing] him again” “in December 2017” by reducing his pay. 

B. Motion for summary judgment or summary 

adjudication

In July 2019, Farmers filed a motion for summary 

judgment or summary adjudication. 

In response, plaintiff (1) dismissed his claims for 

discrimination and wrongful termination in violation of public 

policy, and (2) opposed summary judgment on his claims for 

retaliation and failure to prevent retaliation. Plaintiff testified in 

his deposition in this case that (1) he never had any discussions 

about how the consultant position would affect his salary, (2) his 

salary in the consultant position was to stay “the same” despite 

3 While plaintiff’s operative complaint alleges discrimination 

on the basis of race, age, and gender and retaliation for 

complaining about age- and gender-based discrimination, the sole 

basis plaintiff pursues on appeal is retaliation for his complaint 

regarding age-based discrimination. 
7

being four salary grades lower, and (3) the first time he learned 

there would be any change to his salary was in May 2017 (and 

thus after he lodged his internal complaint raising issues of age 

discrimination), when his salary dropped by $10,000, and in 

November 2017, when it dropped by another $10,000.

After Farmers filed a reply and the trial court held a 

hearing, the court granted summary judgment for Farmers on 

plaintiff’s claim of retaliation and his derivative claim of failing to 

prevent retaliation. Specifically, the court ruled that (1) plaintiff 

did not engage in any protected activity that could give rise to a 

retaliation claim because his internal complaint did not allege—

and did not put Farmers on notice of any possible—age 

discrimination, and (2) there was no causal link between 

plaintiff’s complaint and any adverse employment action because

Farmers implemented the phased drop in his salary in May 2016, 

which was more than seven months before plaintiff filed his 

internal complaint in December 2016. The court also overruled 

plaintiff’s evidentiary objections to the Change in Employment 

Conditions form and the sixth paragraph of Smith’s declaration 

recounting that her supervisor had approved the phased salary 

reduction plan and that the plan had been memorialized in the 

Change in Employment Conditions form. 

C. Entry of judgment and appeal

Following the entry of judgment, plaintiff filed this timely 

appeal.

DISCUSSION

Plaintiff argues that the trial court erred in granting 

summary judgment on his claims of retaliation and failure to 

prevent retaliation. Because a claim for failure to prevent

retaliation under FEHA is necessarily premised on a valid claim 
8

for retaliation (Thompson v. City of Monrovia (2010) 186 

Cal.App.4th 860, 880), the viability of plaintiff’s lawsuit hinges on 

whether the trial court erred in granting summary judgment on 

plaintiff’s retaliation claim.

A court errs in granting summary judgment if there are 

“genuine” or “triable” issues of fact to be resolved at trial—that is, 

if “‘the evidence would allow a reasonable trier of fact to find . . . 

in favor of the party opposing the [summary judgment] motion.’” 

(Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860 

(Serri), quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 

826, 845; see Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 

358, 365.) We review a trial court’s summary judgment ruling 

independently, without regard to its conclusions or its reasoning. 

(Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 

455.) In so doing, we may not weigh conflicting evidence or 

assess the credibility of witnesses (Sandell v. Taylor-Listug, Inc.

(2010) 188 Cal.App.4th 297, 319), and must resolve any doubts 

against summary judgment and in favor of trial (Salas v. Sierra 

Chemical Co. (2014) 59 Cal.4th 407, 415).

Among other things, FEHA makes it unlawful “[f]or any 

employer . . . to discharge, expel, or otherwise discriminate 

against any person because the person has opposed any practices 

forbidden under” FEHA. (Gov. Code, § 12940, subd. (h).) In 

evaluating such claims, California uses a burden-shifting 

mechanism. The employee must first establish a prima facie case 

of retaliation by producing evidence to show that “(1) he . . . 

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 
9

(Yanowitz).) If he meets this burden, then it is rebuttably 

presumed that the employer engaged in retaliation, and the 

burden shifts to the employer to set forth “a legitimate, 

nonretaliatory reason for the adverse employment action.” (Ibid.) 

The burden then “shifts back to the employee to prove intentional 

retaliation.” (Ibid.)

The burden-shifting mechanism works differently when 

evaluating a summary judgment motion. (Serri, supra, 226 

Cal.App.4th at p. 861.) Where, as here, the employer is the 

movant for summary judgment, the employer bears the initial 

burden to disprove one or more elements of the employee’s prima 

facie case or to adduce evidence supporting a legitimate, 

nonretaliatory reason for the adverse employment action. (Ibid.; 

Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 741.) If 

it does so, then the burden shifts to the employee to produce 

“substantial evidence” that (1) “‘the employer’s stated reasons 

were untrue or pretextual,’” or (2) “‘the employer acted with a 

[retaliatory] animus.’” (Serri, at p. 861, quoting Cucuzza v. City 

of Santa Clara (2002) 104 Cal.App.4th 1031, 1038; see Choochagi 

v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 457.)

We agree with the trial court’s conclusion that plaintiff has 

failed to establish a triable issue of fact on two of the three 

elements of his retaliation claim.

I. Protected Activity

An employee engages in activity protected by FEHA if he 

“opposes activity [he] reasonably believes constitutes unlawful 

discrimination,” but not if he makes “complaints about personal 

grievances.” (Yanowitz, supra, 36 Cal.4th at p. 1047; Gov. Code, 

§ 12940, subd. (a) [prohibiting discrimination on the basis of age, 

among other characteristics].)
10

Here, it is undisputed that plaintiff’s internal complaint 

made no mention of age discrimination whatsoever. Instead, the 

complaint alleged that plaintiff was “treated unfair[ly]” and 

“retaliated against” because Wedding boxed him out of the job he 

wanted and, in support of that allegation, the complaint recited a 

litany of reasons why Wedding had reason to dislike him and a 

litany of additional ways in which she had manifested that

dislike. Because the sole evidence of protected activity 

underlying plaintiff’s retaliation claim is the internal complaint, 

Farmers carried its initial burden of establishing the absence of 

the protected activity element of plaintiff’s retaliation claim.

Plaintiff offers four reasons why, in his view, Farmers 

failed to carry its burden because his internal complaint does

allege age discrimination or, alternatively, he carried his burden 

of producing evidence substantial enough to raise a triable issue 

of fact.

First, plaintiff asserts that an employee is “not required to 

use legal terms or buzzwords when opposing discrimination” 

(Yanowitz, supra, 36 Cal.4th at p. 1047), so his failure to 

expressly refer to age discrimination is of no moment. But 

plaintiff’s internal complaint is not deficient for failing to describe 

age discrimination using the right words; rather, it is deficient for 

failing to describe age discrimination at all.

Second, plaintiff contends that one of Farmers’s corporate 

investigators testified in his deposition that plaintiff’s internal 

complaint “involved age discrimination.” The investigator so 

testified only after he was shown what the attorney examining 

him represented to be part of plaintiff’s internal complaint and 

that contained the words, “claims of retaliation and age 

discrimination.” But no part of plaintiff’s internal complaint in 
11

the record contained the phrase read to the investigator by the 

examining attorney. The fact that the examining attorney 

induced the investigator to parrot back a phrase that the 

attorney misrepresented was in a document—when it is 

undisputed that the phrase was not in that document—does not 

create a triable issue of fact. (See Western Digital Corp. v. 

Superior Court (1998) 60 Cal.App.4th 1471, 1487 (Western 

Digital) [“‘[A] trier of fact may not indulge in inferences rebutted 

by clear, positive and uncontradicted evidence.’ [Citation.]”].) If 

it did, we would be condoning—and hence encouraging—trickery 

and deceit. 

Third, plaintiff posits that the manner in which Farmers 

processed plaintiff’s internal complaint creates substantial 

evidence that Farmers understood the complaint to allege age 

discrimination. Specifically, plaintiff notes that Farmers (1) 

labeled it as a “Level 2” investigation, (2) ordered it to be 

investigated alongside two other internal complaints alleging age 

discrimination, and (3) routed the investigation through its 

Corporate Investigative Function Steering Committee. But none 

of these observations raises a triable issue of fact. A “Level 2” 

investigation simply refers to a possible “breach of company 

rules” that are “routine” (as opposed to the more serious “Level 1” 

investigation that “involves a very high degree of legal reputation 

or financial risk”); the “Level” classification says nothing about 

the nature of claim. The pairing of plaintiff’s internal complaint 

with other complaints is a function of the fact that complaints are 

to be jointly investigated because they involve common personnel, 

witnesses, or a possible trend; here, all three internal complaints

were filed by employees working in the Unit and included

accusations at Wedding. Routing the investigation through the 
12

Steering Committee means that the complaint potentially 

implicates “company policy” and “may involve a potential 

violation of law”; again, it says nothing about the nature of the 

policy or law violated.

Lastly, plaintiff argues that one of Farmers’s lawyers told 

him, in the summer of 2017, that his internal complaint had 

“some merit.” But this evaluation spoke to the merits of what 

plaintiff alleged in that complaint—and that complaint did not 

allege any age discrimination.

II. Causal Link

As noted above, a prima facie case for retaliation under 

FEHA requires proof of a “causal link” between the protected 

activity and the adverse employment action suffered by the 

plaintiff. (Yanowitz, supra, 36 Cal.4th at p. 1042.) Because a 

reduction in an employee’s salary qualifies as an adverse 

employment action (e.g., Pinero v. Specialty Restaurants Corp.

(2005) 130 Cal.App.4th 635, 640), and because it undisputed that 

plaintiff’s pay dropped in May and November 2017, whether 

Farmers has established the absence of the causal link element 

depends entirely on whether there is any evidence of a link 

between that drop in pay and plaintiff’s act of filing his internal 

complaint.

There is no evidence of such a link, and we reach this 

conclusion for two reasons. First, the undisputed facts show that 

Farmers adopted its phased salary reduction plan for plaintiff in 

May 2016, which was nearly eight months before plaintiff filed 

his internal complaint; as a result, the pay cut plaintiff cites as 

the sole adverse employment action in this case could not have 

been in retaliation for filing the internal complaint. Second, even 

if we were to accept plaintiff’s argument that Farmers decided to 
13

cut plaintiff’s pay for the first time after he filed his internal 

complaint (and, by implication, that Farmers subsequently 

fabricated and backdated the seemingly contemporaneous

Change in Employment Conditions form), plaintiff has failed to 

adduce any evidence whatsoever that the persons at Farmers 

responsible for the 2017 pay cuts knew about his internal 

complaint. (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 

429 [summary judgment appropriate where “there is no evidence 

that anyone involved in the decision to terminate plaintiff’s 

employment knew about the complaint or that it factored into 

their determination”].) Given that Farmers employs thousands of

people, plaintiff essentially asks us to infer that the employee(s) 

who learned of his internal complaint somehow told the unnamed 

employee(s) who controlled his pay levels in 2017 about that 

complaint, but this inference is based on nothing but speculation 

and hence cannot constitute substantial evidence. (Batarse v. 

Service Employees Internat. Union, Local 1000 (2012) 209 

Cal.App.4th 820, 834; Diego v. City of Los Angeles (2017) 15 

Cal.App.5th 338, 349 [“An inference may not be based on 

speculation or surmise”].)

Plaintiff marshals two categories of arguments in response.

A. Inadmissibility of change in employment form

Plaintiff asserts that Farmers cannot establish that its 

phased salary reduction plan for him was in place in May 2016 

because (1) the Change in Employment Conditions form 

documenting that plan is not admissible, and (2) the form is the 

sole evidence of Farmers’s plan.

Neither of these premises is valid.

Even if we opt to sidestep the split of authority regarding 

the standard of review for evidentiary questions in summary 
14

judgment motions by engaging in de novo review (Reid v. Google, 

Inc. (2010) 50 Cal.4th 512, 535), the first premise is invalid 

because we independently conclude that the Change in

Employment Conditions form is admissible as a business record

under Evidence Code section 1271, which means it satisfies both 

the hearsay rule and is properly authenticated. (Remington Invs. 

v. Hamedani (1997) 55 Cal.App.4th 1033, 1043 [laying foundation 

under Evidence Code section 1271 satisfies hearsay rule and 

authentication requirements]; People v. Dean (2009) 174 

Cal.App.4th 186, 197, fn. 5.) Evidence Code section 1271 

provides that “a writing made as a record of an . . . event” is 

admissible “to prove the . . . event” occurred if (1) “[t]he writing 

was made in the regular course of a business,” (2) “[t]he writing 

was made at or near the time of the . . . event,” (3) “[t]he 

custodian or other qualified witness testifies to its identity and 

the mode of its preparation,” and (4) “[t]he sources of information 

and method and time of preparation were such as to indicate its 

trustworthiness.” (Evid. Code, § 1271; Garibay v. Hemmat (2008) 

161 Cal.App.4th 735, 742.) These requirements are met here: (1) 

the Change in Employment Conditions form is on a standard 

Farmers form, which indicates that it is made in the regular 

course of Farmers’s business; (2) the form was created on May 2, 

2016, which was within days or weeks of plaintiff approaching 

Human Resources Consultant Smith to request the phased salary 

reduction plan; (3) Smith and plaintiff’s supervisor in the 

consultant position both identified the form, and Smith explained 

that it was prepared to “memoralize[]” the phased salary 

reduction plan approved by Farmers; and (4) the form and 

Smith’s testimony about the form, as well as Farmers’s

subsequent adherence to the schedule for the drops in salary, 
15

indicate the form’s trustworthiness. (Accord, Rivcom Corp. v. 

Agric. Labor Relations Bd. (1983) 34 Cal.3d 743, 774, fn. 28 [“upto-date employee records” and employer’s “reliance on them 

amply establish[] their trustworthiness”].)

Plaintiff resists our analysis of the business records 

exception with three arguments. To begin, he asserts that the 

Change in Employment Conditions form is not trustworthy 

because it is not completely filled out, bears no signatures, and 

has the “waiting for approval” box checked without any 

explanation. “However, ‘that a business record contains some 

omissions does not necessarily render unreliable the information 

the record includes.’” (Jazayeri v. Mao (2009) 174 Cal.App.4th 

301, 323 (Jazayeri), quoting People v. Hovarter (2008) 44 Cal.4th 

983, 1011.) Relatedly, he asserts that the form is inconsistent 

with the letter he received on May 4, 2016 stating that his 

“annual base salary” was $120,659.14. But there is no 

inconsistency because the phased salary reduction plan 

contemplated that his starting salary would initially stay the 

same as for the division manager position (that is, $120,659.14), 

and that the first salary drop would take effect a year later. 

Next, plaintiff argues that Smith lacked sufficient personal 

knowledge to authenticate the form because she said that the 

phased salary reduction plan “was memorialized” (in the passive 

voice) and did not specify who memorialized it. But Smith 

attested to her “personal knowledge” of its memorialization, and 

the person authenticating a business record need not be its 

author (Jazayeri, at p. 324). Lastly, plaintiff points out that 

Smith was not the form’s custodian. But the rule only requires 

authentication by a “qualified witness”; the custodian is not 

necessary as long as the authenticating witness has the requisite 
16

knowledge. (Ibid.; People v. Matthews (1991) 229 Cal.App.3d 930, 

940.) Smith did.

The second premise of plaintiff’s argument—namely, that 

the form was the sole evidence of Farmers’s phased salary 

reduction plan—is also invalid because both Smith and plaintiff’s 

new supervisor, Gregory Koch, also declared that Smith had 

obtained authority to implement the phased salary reduction

plan. Because plaintiff did not object to this evidence, it is

properly before us and provides independent evidence that 

Farmers had committed to the phased salary reduction plan long 

before plaintiff filed his internal complaint.4 (Code Civ. Proc., 

§ 437c, subds. (b)(5), (c), (d); see Serri, supra, 226 Cal.App.4th at 

p. 851, fn. 11.)

B. Plaintiff’s inconsistent deposition testimony

Plaintiff contends that the timing of Farmers’s phased 

salary reduction plan is still in dispute because, in his deposition 

in this case, he testified that his salary at Farmers was supposed 

to stay “the same” when he moved from the division manager 

position to the consultant position, such that the salary

reductions he suffered in May and November 2017, respectively, 

must have been in retaliation for his December 2016 internal 

complaint. This deposition testimony flatly contradicts what 

plaintiff previously stated under oath in a deposition and a 

declaration in other litigation against Farmers, where he testified 

that his “new job” “require[d him] to take” a “four salary grade 

demotion” and a nearly “$30,000” “downgrade in pay” and that he 

was “forced to” do so “in an effort to keep [his] employment with 

4 For these reasons, we have no occasion to decide whether 

Smith’s supervisor’s authorization of the phased salary reduction 

plan fits within the state of mind exception to the hearsay rule.
17

Farmers.” Where, as here, a plaintiff has already made a “clear 

and unequivocal admission” in prior declarations and depositions, 

his subsequent deposition testimony contradicting those prior 

admissions is to be disregarded and is “‘no[t] substantial evidence 

of the existence of a triable issue of fact.’ [Citation.]” (D’Amico v. 

Board of Medical Examiners (1974) 11 Cal.3d 1, 21; Shin v. Ahn

(2007) 42 Cal.4th 482, 500, fn. 12; State Farm Mut. Auto. Ins. Co. 

v. Eastman (1984) 158 Cal.App.3d 562, 573; cf. Scalf v. D.B. Log 

Homes, Inc. (2005) 128 Cal.App.4th 1510, 1524-1525 [disregard of 

plaintiff’s later statements does not “countenance ignoring other

credible evidence that contradicts or explains that party’s 

answers or otherwise demonstrates there are genuine issues of 

factual dispute”].)

Plaintiff responds that his prior sworn statements do not 

clearly and unequivocally conflict with his most recent deposition 

testimony because his prior statements merely reflected his state 

of knowledge when he made those statements in 2018—not what 

he knew at the time he took the new position in May 2016. This 

construction of plaintiff’s prior sworn statements is not supported 

by the statements themselves. Plaintiff stated he was “required” 

and “forced” to take the “demotion” and “downgrade in pay” “to 

keep [his] employment.” Because the only time plaintiff was in 

jeopardy of losing his job was during the 60-day window between 

March and May 2016, his efforts to keep that job necessarily 

occurred during that window. Although, as plaintiff points out, 

we are required to indulge all reasonable inferences against the 

grant of summary judgment (e.g., Binder v. Aetna Life Ins. Co.

(1999) 75 Cal.App.4th 832, 854), this does not permit us to give a 

tortured and unreasonable reading to plaintiff’s words to save 

plaintiff from his own prior admissions. (Accord, Western Digital, 
18

supra, 60 Cal.App.4th at p. 1487 [“‘[A] trier of fact may not 

indulge in inferences rebutted by clear, positive and 

uncontradicted evidence.’ [Citation.]”].)

DISPOSITION

The judgment is affirmed. Farmers is entitled to its costs 

on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ