Filed 3/27/15 Armenta v. Morris National, Inc. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ISIDORA ARMENTA,

Plaintiff and Appellant,

v.

MORRIS NATIONAL, INC.,

Defendant and Respondent.

 B255575

 (Los Angeles County

 Super. Ct. No. BC490036)

APPEAL from a judgment of the Superior Court for Los Angeles County, 

Maureen Duffy-Lewis, Judge. Affirmed.

Law Offices of Ramin R. Younessi, Ramin R. Younessi, Glen H. Mertens

and Christina Coleman for Plaintiff and Appellant.

Jackson, DeMarco, Tidus & Peckenpaugh and Ron S. Brand for Defendant 

and Respondent. 
2

Plaintiff Isidora Armenta appeals from a judgment dismissing her age 

discrimination lawsuit following the granting of defendant Morris National, Inc.’s 

(MNI) motion for summary judgment. We affirm the judgment.

BACKGROUND

In February 2011, Armenta was terminated from her employment with MNI. 

At that time, she was 63 years old, and had worked at MNI for 23 years. MNI 

manufactures, imports, and distributes confectionary specialty foods and gift 

packs. MNI employs permanent employees, who work year-round, and seasonal 

employees, who work from May through November. Employees who work fulltime receive employer benefits, such as health and life insurance, regardless of 

whether they are permanent or seasonal employees; part-time employees do not 

receive those benefits. At times during her employment Armenta was a permanent 

employee, and at other times she was a seasonal employee. However, she always 

was a full-time employee. 

In August 2012, Armenta filed a lawsuit against MNI, alleging four causes 

of action: (1) breach of the covenant of good faith and fair dealing; (2) age 

discrimination in violation of the Fair Employment and Housing Act (FEHA); 

(3) wrongful termination in violation of public policy; and (4) retaliation in 

violation of Government Code section 12940, subdivision (h). The complaint 

alleged that Armenta worked for MNI as a machine operator from July 1988 until 

February 2011. She operated a machine that made special ordered chocolates with 

liqueur, and her duties included some machine maintenance, inserting molds into 

machines, covering chocolate molds, and placing chocolates in refrigeration units. 

In addition, she performed general cleaning duties, sweeping floors, washing 

molds and baskets using a special machine, and packaging chocolates and other 

candies. The complaint alleged that in February 2011, the machine Armenta 
3

worked with was phased out and replaced with a newer machine, and that all of the 

10 to 12 people who worked with the phased out machine were relocated, except 

for Armenta. All of the relocated workers were younger than Armenta. Armenta

alleged that even though she was trained for and was able to perform other duties, 

such as operating the machines for washing and cleaning molds and baskets, she 

received a termination letter from MNI stating that she was being terminated due to 

the elimination of her job position. 

A. MNI’s Motion for Summary Judgment

MNI filed a motion for summary judgment, or in the alternative, summary 

adjudication in December 2013. MNI argued that it was entitled to judgment 

because Armenta was an at-will employee and was laid off as part of a reduction in 

force, and there is no evidence that MNI acted with a motive to discriminate based 

upon her age. To support its motion, MNI submitted, among other evidence, 

declarations from its Vice President of Manufacturing, Production Planner/Cost 

Controller, Production Supervisor, and Human Resources Manager at the time of 

Armenta’s termination. 

The Vice President of Manufacturing, Claude Douessin, declared that MNI 

suffered financially in 2008. He met with various MNI employees, including the 

President, Gerry Zubatoff, and the Production Planner/Cost Controller, Theo 

Bradford, to discuss how to address MNI’s financial problems. Bradford was 

tasked with determining what MNI should do to reduce costs. Based upon those 

meetings and Bradford’s analysis, MNI decided to reduce costs by laying off 13 of 

MNI’s full-time employees as part of a reduction in force; that layoff took place on 

January 16, 2009. 

Douessin declared that in 2010, MNI determined it needed to further reduce 

costs, and decided to lay off three more full-time employees, with the layoff to take
4

effect in early 2011. MNI’s Production Supervisor, Marvin Quintanilla, was 

tasked with determining which employees should be laid off. Quintanilla selected 

Armenta, Leticia Espejel, and Martha Garcia. Armenta was 63 years old,1Espejel 

was 39 years old, and Garcia was 40 years old at the time they were laid off. 

Quintanilla informed Douessin and Bradford of his determination, and Douessin

made the ultimate decision to terminate Armenta, Espejel, and Garcia. Douessin

declared that his decision to terminate Armenta had nothing to do with her age. 

Bradford, MNI’s Production Planner/Cost Controller, explained in his 

declaration that he is responsible for coordinating work between MNI’s 

departments, and that his duties include determining how many employees are 

needed for production at any given time. He stated that he conducted an analysis 

in 2007 of how MNI could reduce costs and increase profits. As part of that 

analysis, he looked at what would be the optimal number of employees to run the 

manufacturing machines efficiently and at the lowest possible cost. He determined 

that MNI could save a considerable amount of money in salary and benefits by 

reducing the number of full-time employees from 39 to 24. When, in 2008, MNI 

suffered financially due to the economic slowdown and saw its sales reduced, he 

was tasked with determining how MNI could reduce its costs. Based on his 

analysis, he determined that if MNI had a core group of full-time employees who 

were able to rotate from one department to another and were able to perform 

production functions in those departments efficiently, MNI would need only 20 

 

1 Although Douessin declared that Armenta was 62 years old at the time she was 

terminated, Armenta declared she was 63 years old. 
5

full-time employees.2 By laying off the rest of the full-time employees, MNI 

would save more than $600,000 in salaries and benefits. 

In his declaration, Quintanilla stated that, as a Production Supervisor for 

MNI, his duties involve planning, coordinating, and controlling MNI’s 

manufacturing processes. As part of his job, he indirectly supervised Armenta at 

various times during her employment. He declared that he was tasked with 

recommending to Douessin which full-time employees should be laid off in 2011. 

He met with other supervisors in the production department -- Araceli Zamora, 

Virginia Rodriguez, and Nicolas Ferrer -- who had direct knowledge about the 

work performance of the production employees. He determined the three 

employees who should be laid off as part of the reduction in force based upon 

various factors, including reliability, experience, versatility, and efficiency. 

Quintanilla stated that he decided Armenta should be laid off because even 

though she had worked for MNI for many years, her versatility and efficiency were 

extremely limited, and she was unable to perform tasks that other full-time 

employees could perform. He declared that Armenta’s age had nothing to do with 

his decision to recommend that she be included in the layoff. He stated that he 

decided that Garcia should be laid off for the same reason as Armenta, and that 

Espejel should be laid off because she had only been working in the production 

department for about a month, and was the least experienced full-time employee. 

Cheryl Laws, who was the Human Resources Manager at MNI from 

October 30, 2006 through April 19, 2013, declared that MNI routinely hired 

significant numbers of older workers. She stated that during the time she was 

 

2 At that time, MNI had several different product lines, each using a different 

machine, to produce different kinds of chocolates. Those lines included the Awema line, 

the 275 line, the 850 line, and the packaging line. 
6

employed by MNI, the company employed 400 to 500 seasonal employees3(a 

mixture of part-time and full-time employees) and 100 to 120 permanent 

employees (all of whom were full-time), and approximately half of the employees 

in each group were over 40 years old. She stated that the ages of the 13 full-time 

employees who were laid off on January 16, 2009 ranged from 23 years old to 56 

years old, and that five of the 13 employees were under 40 years old. Regarding 

Armenta, Laws stated that Armenta had worked both as a permanent employee and 

as a seasonal employee, but she always was a full-time employee receiving 

benefits. She also stated that in 2002, Armenta signed an Acknowledgement form 

(in Spanish) acknowledging that she was an at-will employee and that her length of 

employment with MNI was not guaranteed for any specified period. Finally, Laws 

declared that she met with Armenta and the two other laid off employees on 

February 25, 2011, with a Spanish interpreter, and advised each of the employees 

that they could apply for part-time seasonal work. Espejel applied for, was 

offered, and accepted a job as a part-time seasonal employee; Armenta never 

applied for a part-time seasonal job. 

In addition to the above, each of the declarants stated that at no time did 

Armenta ever complain that she felt she was discriminated against because of her 

age, that she felt she was being treated differently because of her age, or that 

anyone at MNI made any demeaning or derogatory remarks or jokes about her age. 

In addition to the declarations, MNI also submitted excerpts from Armenta’s 

deposition in support of its summary judgment motion. In those excerpts, Armenta 

testified that (1) she understood that MNI could terminate her employment at any

time; (2) she worked on the machine that made special order chocolates with 

 

3

Laws explained that seasonal employees work from the beginning of May through 

the end of November. They are laid off at the end of the season and some, but not all, are 

re-hired at the beginning of the season. 
7

liquor, and did not work on any other machine; (3) she never heard or overheard 

anyone at MNI joke or make any remarks about her age; and (4) she was told when 

she was terminated that she could reapply as a temporary or seasonal employee, 

but she never applied for a job with MNI after she was laid off. 

B. Armenta’s Opposition to Summary Judgment Motion

In opposing the summary judgment motion, Armenta contended there was 

no bona fide reduction in force because MNI was preparing to add a new 

production line -- the Tangy Zangy line -- and added 400 new employees two 

months after she was terminated. She also contended that Douessin, Bradford, and 

Quintanilla gave different explanations about how the decision to terminate her 

was made, which she argued shows that MNI’s stated reason for terminating her 

was fabricated. In addition, she disputed MNI’s contention that she only worked 

with one machine and was not able to perform tasks that other full-time employees 

could perform. Finally, she contended that MNI has a history and policy of age 

discrimination.

In support of her first contention, Armenta submitted excerpts from the 

depositions of Douessin and Bradford. Douessin testified that Tangy Zangy was a 

product that originally was manufactured for MNI in China. In 2010, MNI decided 

it would make the product in the United States. MNI purchased the machine to 

make the product in September 2010. The machine arrived in March 2011, and 

production began in mid-April 2011. MNI needed 36 employees to run the 

machine, in three shifts of 12 people. Some of those people were full-time 

employees from the chocolate side of MNI’s production department, and the rest 

were seasonal employees. Bradford testified that at the time of Armenta’s 

termination in February 2011, MNI had 20 to 24 full-time employees in the 

production department, and that at the time of his deposition (in July 2013), MNI 
8

had 50 full-time employees in the production department. He explained the 

increase in number of employees was due to the addition of the Tangy Zangy line, 

which produces a totally different kind of candy and runs 24 hours per day, six 

days per week, and requires around 12 people per shift. 

In support of her second contention that different explanations were given 

regarding the decision to terminate her, Armenta pointed to testimony she 

submitted from Bradford’s, Douessin’s, and Quintanilla’s depositions, and 

Douessin’s and Quintanilla’s declarations filed in support of the summary 

judgment motion. Bradford testified that he told Douessin in connection with the 

layoff that MNI should keep the most versatile and portable people, who can move 

from one process to another in the manufacturing facility and be as proficient in all 

those jobs. Quintanilla testified at his deposition that he chose the three people to 

lay off because they had less ability to multitask, or work in different stations, but 

in his declaration he stated that he based his decision about who to lay off on 

various factors, including reliability, experience, versatility, and efficiency. 

Quintanilla also testified at one point in his deposition that he decided that 

Armenta and the others should be laid off, and later testified that he and the other 

supervisors made the decision,4and still later testified that he simply made a 

recommendation, even though he stated in his declaration that he made the 

decision. Douessin testified at his deposition that he did not choose who to lay off,

but he stated in his declaration that he made the ultimate decision to lay off 

Armenta and the others. 

 

4 Quintanilla testified at his deposition that the supervisors he met with to decide 

who should be laid off were Araceli Zamora, Virginia Rodriguez, and Nick Ferrer. 

Zamora testified at her deposition that the people who met to decide about the layoff 

were herself, Quintanilla, Rodriguez, and Raul Canto, the plant manager. 
9

Armenta also submitted deposition testimony from Quintanilla in which he 

stated that Armenta was chosen to be laid off because she had only worked on the 

Awema line (i.e., the phased-out machine) and cleaning the molds, as well as the 

packaging line during the off-season, although he admitted that he did not directly 

supervise Armenta and did not know if she ever worked on any other lines. 

Armenta disputed Quintanilla’s assertion that she had limited experience by 

pointing to deposition testimony from people who had directly supervised her, 

Araceli Zamora and Virginia Rodriguez, both of whom testified that Armenta had 

worked at several positions on other production lines. She also submitted her own 

declaration in which she stated that over the course of her employment with MNI 

she had been assigned to every position on all of the production lines, and had 

never received a warning about her work performance, versatility, or efficiency. 

Finally, she submitted excerpts from the depositions of several MNI employees 

who were not laid off, some of whom testified that there were certain positions 

and/or lines they generally did not work. 

To support her contention that MNI has a history and policy of age 

discrimination, Armenta submitted deposition testimony from Jesse Zamora, a fulltime employee who currently works in the shipping department at MNI. Zamora 

testified that he had been the production supervisor at MNI for 20 years and was 

demoted after he filed charges with the Department of Fair Housing and 

Employment against Raul Canto, his supervisor, for discrimination based upon his 

age and disability (he is diabetic). Zamora explained that Canto treated him badly, 

and told him that he wanted a younger crew and that he was going to get rid of him 

(Zamora). Zamora also testified that Canto laid him off twice, but he was called 

back to work by Cheryl Laws both times. He was a production supervisor when he 

was laid off the first time, and he was called back into quality control. He worked 
10

in quality control for two years (and was laid off for a time), and then was put into 

a position in the warehouse, in shipping and receiving. 

In addition to Jesse Zamora’s deposition testimony, Armenta submitted

deposition testimony from two older employees, Jose Rodriguez and Gilberto 

Resendez, each of whom testified they had been laid off multiple times, and a 

younger employee, Sandra Banda Lagunas, who testified she had never been laid 

off. 

Finally, Armenta submitted MNI’s responses to special interrogatories, 

which included a list of all MNI employees and their ages at the time she was laid 

off. That list shows there were 38 people in the production/samples and warehouse 

departments; two (including Armenta) were age 60 or older, seven were age 50 to 

59, and 16 were age 40 to 49. Armenta was the oldest, at age 63.

C. MNI’s Reply

In response to Armenta’s opposition, MNI submitted additional evidence, 

including additional excerpts from the depositions of Armenta’s supervisors, 

Zamora and Rodriguez, and declarations from the current Human Resources 

Manager, Claudia Macias, and Zamora. Zamora testified that when she worked 

with Armenta, Armenta always took the position at the beginning of the line; she 

did not want to work in the middle or end positions. Zamora tried to train Armenta 

to work in the middle position, but Armenta could not do the work. One time,

Zamora asked Armenta to take over for her at the middle position while Zamora 

went to get something, and when Zamora came back Armenta had a pile of product 

at her position. When Zamora asked Armenta what happened, Armenta told her 

she could not do that work. Armenta also told Zamora that she (Armenta) could 

not do the work required for the end position. Zamora concluded that Armenta 

was very good in some positions, but she was not able to cover the other positions. 
11

Armenta’s other direct supervisor, Rodriguez, testified that sometimes she would 

assign Armenta to work in a position that Armenta did not want to work, and

Rodriguez would have to assign her to a different position. Rodriguez found that 

Armenta was not cooperative, and would complain about not being able to do the 

work she was assigned to do, even though she had been trained to do that work.

MNI also submitted two declarations addressing the deposition excerpts 

submitted by Armenta in which Araceli Zamora testified that Raul Canto was 

involved in the decision about which employees should be laid off in 2011.5 In one 

declaration, Araceli Zamora stated that she had been mistaken when she gave that 

testimony at her deposition. She stated that Canto was involved in the decision to 

lay off 13 employees in January 2009, but he was not involved in the 2011 layoff 

because he had been terminated by MNI in May 2009. In the other declaration, the 

current Human Resources manager, Claudia Macias, declared that MNI terminated 

Canto’s employment on May 14, 2009, when his position was eliminated; she 

attached a copy of the Agreement for Separation of Employment between MNI and 

Canto, which was signed by Canto and MNI’s Chief Financial Officer in May 

2009. 

D. Trial Court’s Ruling

The hearing on MNI’s summary judgment motion was held on March 5, 

2014, and the trial court took the matter under submission. The following day, the 

court issued its minute order granting the motion. The court noted that Armenta 

dismissed the first and fourth causes of action, leaving only the second cause of 

action for age discrimination under the FEHA and the third cause of action for 

 

5 As noted, Armenta submitted deposition testimony from Jesse Zamora that Canto 

told him that he (Canto) wanted a younger crew and that he was going to get rid of him. 

MNI objected to that evidence on hearsay and relevance grounds. 
12

wrongful termination in violation of public policy (age discrimination). The court

found that MNI had presented sufficient evidence to show a legitimate nondiscriminatory reason for Armenta’s termination, and Armenta did not present 

evidence that this reason was pretext or false. The court observed that “[a] 

plaintiff’s suspicions of improper motives based primarily on conjecture and 

speculation are not sufficient to raise a triable issue of fact to withstand summary 

judgment.” The court also found that Armenta’s use of Jesse Zamora’s testimony 

as to what Raul Canto said was hearsay. The court entered judgment in favor of 

MNI, from which Armenta appeals. 

DISCUSSION

A. Summary Judgment Rules and Standard of Review 

In the trial court, a defendant moving for summary judgment must present 

evidence that one or more elements of the plaintiff’s claim cannot be established or 

that there is a complete defense to the claim. If the defendant meets that burden of 

production, the burden shifts to plaintiff to show that a triable issue of material fact 

exists as to that claim or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 850.) The plaintiff shows that a triable issue of material fact exists by 

pointing to evidence that would allow a reasonable trier of fact to find that fact in 

favor of the plaintiff. (Ibid.) If plaintiff fails to do so, the defendant is entitled to 

judgment as a matter of law.

On appeal from a summary judgment, we make “an independent assessment 

of the correctness of the trial court’s ruling, applying the same legal standard as the 

trial court in determining whether there are any genuine issues of material fact or 

whether the moving party is entitled to judgment as a matter of law.” (Iverson v. 

Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
13

B. Law Governing Discrimination Claims

In analyzing employment discrimination claims, California courts apply the 

three-stage burden shifting test established by the United States Supreme Court in 

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz v. Bechtel 

National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) Under that test, the plaintiff has 

the initial burden to establish a prima facie case of discrimination. “Generally, the 

plaintiff must provide evidence that (1) he was a member of a protected class, 

(2) he was qualified for the position he sought or was performing competently in 

the position he held, (3) he suffered an adverse employment action, . . . and 

(4) some other circumstance suggests discriminatory motive.” (Id. at p. 355.) If 

the plaintiff satisfies this initial burden, a presumption of discrimination arises and 

“the burden shifts to the employer to rebut the presumption by producing 

admissible evidence, sufficient to ‘raise[] a genuine issue of fact’ and to ‘justify a 

judgment for the [employer,]’ that its action was taken for a legitimate, 

nondiscriminatory reason.” (Id. at pp. 355-356.) “If the employer sustains this 

burden, the presumption of discrimination disappears. [Citations.] The plaintiff 

must then have the opportunity to attack the employer’s proffered reasons as 

pretexts for discrimination, or to offer any other evidence of discriminatory motive. 

[Citations.] In an appropriate case, evidence of dishonest reasons, considered 

together with the elements of the prima facie case, may permit a finding of

prohibited bias. [Citations.] The ultimate burden of persuasion on the issue of 

actual discrimination remains with the plaintiff. [Citations.]” (Id. at p. 356.)

C. Armenta’s Contentions on Appeal

In her appellant’s opening brief, Armenta contends the trial court erred in 

granting summary judgment to MNI because she presented evidence from which a 

trier of fact could conclude that MNI’s stated reason for terminating Armenta was 
14

pretextual as applied to her, and that MNI actually was motivated by 

discrimination. In her appellant’s reply brief, Armenta also contends that MNI 

failed to meet its burden on summary judgment to produce evidence sufficient to 

establish a legitimate, non-discriminatory reason for her termination. We disagree 

with Armenta’s contentions in her opening brief, and find she forfeited her 

contention made for the first time in her reply brief.

1. Pretext

Armenta argues that she raised a triable issue of fact precluding summary 

judgment because a reasonable trier of fact could conclude that the reason MNI 

gave for terminating Armenta was pretextual, based upon what she asserts are 

inconsistencies and conflicts in the evidence regarding MNI’s stated reason. 

There is no doubt that, in some cases, a plaintiff may defeat an employer’s 

motion for summary judgment by “‘“demonstrat[ing] 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,’ . . . and hence infer ‘that the employer 

did not act for . . . [the asserted] non-discriminatory reasons.”’” (Le Bourgeois v. 

Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1059, quoting Hersant 

v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) In this case, 

Armenta argues that a reasonable factfinder could find MNI’s stated reason for 

terminating her was unworthy of credence because: (1) Quintanilla stated that he 

chose Armenta to be part of the layoff for the same reason he chose Martha Garcia, 

but there was no evidence that Armenta had the same kind of attendance and 

reliability issues that Garcia had; (2) Quintanilla stated that Armenta had not 

worked in multiple positions and was not as versatile as other employees, but there 

was evidence that she had worked in those positions; (3) Quintanilla stated that 
15

when determining which employees should be laid off he considered the 

employees’ reliability, experience, versatility, and efficiency, but there was no

competent evidence that Armenta was considered unreliable, inexperienced, or 

inefficient by her supervisors; and (4) there is conflicting testimony as to who was 

involved in making the decision to lay off Armenta. Examination of the entire 

record, however, demonstrates that these alleged inconsistencies were either 

inconsequential or not inconsistent at all.

For example, Armenta is correct that Quintanilla stated in his declaration 

filed in support of the summary judgment motion that he chose Garcia for 

termination for the same reason he chose Armenta. She also is correct that there 

was evidence that Garcia had attendance problems, and that Armenta did not. But 

the fact that Garcia had attendance problems and Armenta did not is not evidence 

of an inconsistency. 

When Quintanilla was asked at his deposition why he chose Garcia, he 

testified: “Because she was not [a] reliable person. She can’t do all the tasks. She 

couldn’t do all the tasks.” When asked if, by “not reliable,” he meant she had a lot 

of absences, he said “Yes.” But he also said he meant that “[s]he can’t work by 

herself,” that “[w]hen she’s assigned for something, she’s kind of slow. So 

somebody has to be watching her.” When asked why he chose Armenta, he 

testified: “Because she only have limited experience working in just a few 

stations.” Later, he explained that he had complaints about the quality of 

Armenta’s work because “they can’t put her in some areas because it’s hard for her 

to keep up in that specific station.” In other words, he found that both Garcia and 

Armenta had difficulty doing all the tasks in all of the stations, and both were 
16

slow.6 The fact that Garcia also had an absentee problem does not establish the 

kind of inconsistency from which one could conclude that Quintanilla’s reason for 

choosing Armenta for termination was false.

Similarly, the fact that Quintanilla testified that Armenta was chosen for 

termination because she had only limited experience working in a few stations 

even though Armenta provided evidence that she had worked in every position on 

all of the production lines does not, in light of the entire record, demonstrate an 

inconsistency that would justify a conclusion that MNI’s reason for terminating her 

was false. In fact, Quintanilla admitted that he did not know if Armenta had 

worked on production lines other than the Awema line because he did not directly 

supervise her. But he also explained that in making the decision about which 

employees should be laid off, he met with Armenta’s direct supervisors. And 

although those supervisors admitted that Armenta had worked on other production 

lines, they testified that she could not do the work required at many of the positions 

on those lines and therefore she would not work at those positions.

Relying on Quintanilla’s statement that he considered employees’ reliability, 

experience, versatility, and efficiency when determining who should be laid off, 

Armenta asserts that MNI’s proffered reason for terminating her is dishonest 

because there was no evidence that Armenta was unreliable, inexperienced, or 

inefficient. The contention is unsupported by the record and makes little sense. 

First, as noted, one of Armenta’s direct supervisors testified that Armenta had very 

little experience (if any) at some of the positions, and was inefficient at those 

 

6

The direct supervisors of Garcia and Armenta confirmed Quintanilla’s conclusion. 

Araceli Zamora testified that when MNI shut down the Awema line (the 196 line), all of 

the people working on that line, including Armenta and Garcia, were moved to other 

lines, but Garcia, like Armenta, could not handle all of the positions on those other lines. 

Rodriguez testified that Garcia, like Armenta, complained about not being able to do the 

work required at certain positions. 
17

positions. Another supervisor testified that Armenta was not cooperative, and 

complained about being assigned certain work, requiring the supervisor to assign 

her different work. Second, Armenta’s assertion seems to suggest that 

Quintanilla’s choice of employees to lay off necessarily would be suspect unless 

the employees scored poorly on all of the factors Quintanilla considered. But the 

evidence shows that MNI’s ultimate goal was to retain the most versatile 

employees, who could move from one production line to another, and be proficient 

at all of the jobs. Quintanilla was informed of this goal, and therefore needed to 

determine which three employees were least versatile and least proficient at all of 

the jobs. It was not inconsistent for Quintanilla to do this by considering each 

employee’s reliability, experience, versatility, and efficiency. Nor was it 

inconsistent for him to choose someone who may have been reliable and 

experienced, because an employee can be found to be reliable and experienced 

while also being found to be less versatile and less proficient at all of the jobs than 

other employees. 

Finally, Armenta’s assertion that there was conflicting testimony as to who 

was involved in making the decision to terminate her as part of the layoff is based, 

for the most part, on semantics. She notes that Quintanilla stated that he made the 

decision that Armenta should be laid off, but also stated that he did not make the 

decision, and that Douessin stated that he made the final decision, but also stated 

that he was not involved in that process. There is no question that at various points 

Quintanilla declared or testified that he “decided” who should be laid off, and at 

other points he said he “recommended” who should be laid off. It is clear from the 

context of those statements, however, that what Quintanilla meant was that he 

made the decision about who to recommend to be laid off. Similarly, when viewed 

in context, Douessin’s statement that he was not involved in the process of 

choosing Armenta to be laid off is not at all inconsistent with his statement that he 
18

made the ultimate decision to lay off Armenta. As Douessin explained, he told 

Quintanilla that Quintanilla needed to find three people to lay off, and that he 

wanted Quintanilla to keep people who could work all the production lines. Thus, 

Douessin correctly testified that he was not involved in the process of determining 

which three people should be laid off. But the fact that Douessin did not 

participate in the process of choosing Armenta and the others does not mean that 

he did not make the ultimate decision to lay them off, given that he made the 

decision to lay off three people and then acted upon Quintanilla’s recommendation.

To the extent Armenta relies upon inconsistent statements about whether 

former plant manager Raul Canto was involved in deciding who should be laid off, 

MNI provided evidence to show that the inconsistency was the result of a mistake. 

As noted, Araceli Zamora testified at her deposition -- taken more than two years 

after Armenta was laid off -- that she, Canto, Quintanilla, and Rodriguez discussed 

which employees should be laid off. But MNI provided a declaration from Zamora 

stating that Canto was involved in the decision about who should be laid off in 

2009, not in the decision about the 2011 layoff, and that she was mistaken at her 

deposition because Canto had been terminated by MNI in May 2009. MNI also 

provided proof of that termination in May 2009. Thus, Zamora’s misstatement at 

her deposition cannot reasonably be considered as proof that MNI stated reason for 

terminating Armenta was pretextual.

In short, we conclude that none of the purported inconsistencies Armenta 

cites, considered separately or collectively, is sufficient to allow a reasonable 

factfinder to find that MNI’s proffered reason for terminating Armenta is unworthy 

of credence and is a pretext for discrimination. Therefore, the trial court properly 

granted MNI’s motion for summary judgment.
19

2. Discriminatory Motive

Even if Armenta had shown that MNI’s stated reason for terminating 

Armenta was unworthy of credence, we find that summary judgment was properly 

granted because Armenta failed to produce evidence sufficient to permit a rational 

inference that MNI’s actual motive was discriminatory. As the Supreme Court 

observed in Guz: “Proof that the employer’s proffered reasons are unworthy of 

credence may ‘considerably assist’ a circumstantial case of discrimination, because 

it suggests the employer had cause to hide its true reasons. [Citation.] Still, there 

must be evidence supporting a rational inference that intentional discrimination, on 

grounds prohibited by the statute, was the true cause of the employer’s actions. 

[Citation.] Accordingly, the great weight of federal and California authority holds 

that an employer is entitled to summary judgment if, considering the employer’s 

innocent explanation for its actions, the evidence as a whole is insufficient to 

permit a rational inference that the employer’s actual motive was discriminatory.” 

(Guz, supra, 24 Cal.4th at p. 361.)

In this case, the only evidence of a discriminatory motive that Armenta 

presented was (1) Jesse Zamora’s testimony that Canto told him that he (Canto) 

wanted a younger crew and was going to get rid of Zamora; (2) Zamora’s 

testimony that he was demoted after he filed a charge of age and disability 

discrimination with the Department of Fair Housing and Employment; and 

(3) testimony showing that Zamora and two other older employees had been laid 

off multiple times, but a younger employee was never laid off. This evidence is 

insufficient to allow a trier of fact to conclude that MNI’s actual motive in laying 

off Armenta was discriminatory.

First, we note that the trial court sustained MNI’s objection to Zamora’s 

testimony about Canto’s statement to him. Armenta challenges that ruling, but we 

need not determine whether the statement was properly excluded. Even if the 
20

statement is admissible, it is not relevant to show that MNI’s decision to terminate 

Armenta was motivated by discrimination because there is undisputed evidence 

that Canto was not employed by MNI at the time Armenta was terminated. 

For similar reasons, we find that Zamora’s testimony that he was demoted 

after he filed a complaint with the Department of Fair Housing and Employment is 

not relevant to show MNI’s alleged discriminatory motive. Zamora testified that 

he was demoted by Canto, and that he does not know if the demotion had anything 

to do with his age. He also testified that his complaint was based upon Canto’s

conduct, and the Department did not pursue the case.7

Finally, Armenta’s evidence testimony showing that Zamora and two other 

older employees had been laid off multiple times, but a younger employee was 

never laid off is irrelevant in light of the fact that the three older employees were 

rehired by MNI and were still working there. As some courts have observed, 

“‘“[c]laims that employer animus exists in termination but not in hiring seem 

irrational.”’” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 

798, 809.)

In light of the absence of relevant evidence from which a reasonable 

factfinder could infer a discriminatory motive, we conclude the trial court did not 

err by granting summary judgment in favor of MNI.

3. Armenta Forfeited the Contention Raised in Her Reply Brief

The arguments Armenta raised in her opening brief on appeal focused 

entirely on whether purported inconsistencies and conflicts in the evidence 

established pretext and whether there was evidence of a discriminatory motive. 

 

7 With its reply in support of its summary judgment motion, MNI submitted a copy 

of the Notice of Case Closure, dated January 8, 2009, stating that the Department “is 

unable to conclude that the information obtained establishes a violation of the statute.” 
21

She raises an additional argument in her appellant’s reply brief; she argues that 

MNI failed to meet its burden to produce evidence in support of its summary 

judgment motion showing that its decision to reduce its workforce was necessary. 

She appears to argue that she was not required to raise this issue in her opening 

brief because this court reviews the trial court’s ruling de novo, and it is 

“Respondent’s job” to show that it met its burden. She is mistaken. It is well 

established that arguments raised for the first time in the appellant’s reply brief will 

not be considered unless good reason is shown for the failure to present them 

before. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, p. 790, and 

cases cited therein.) While it may be “Respondent’s job” to show that it met its 

burden on summary judgment if the appellant argues in her opening brief that the 

respondent failed to meet its burden below, the appellant is responsible for framing 

the issues on appeal in her opening brief, and the respondent is not required to 

address issues that the appellant does not raise. Therefore, we find Armenta has 

forfeited the issue of whether MNI met its burden on summary judgment by failing 

to raise the issue in her opening brief.
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DISPOSITION

The judgment is affirmed. MNI shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

COLLINS, J.