Filed 10/21/14 Raseknia v. County of Los Angeles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

JOE RASEKNIA,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES et al.,

Defendants and Respondents.

 B246936

 (Los Angeles County

 Super. Ct. No. BC457999)

 ORDER MODIFYING OPINION

 AND DENYING REHEARING

 [Change in Judgment]

THE COURT:*

It is ordered that the opinion filed herein on September 30, 2014, be modified as 

follows:

Page 14: Delete the second paragraph of the Disposition relating to costs, and replace it 

with the following: Each party to bear its own costs on appeal.

This modification does effect a change in judgment.

Respondents’ petition for rehearing is denied.

 

* BOREN, P.J. ASHMANN-GERST, J. FERNS, J.†

† Judge of the Los Angeles Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.
Filed 9/30/14 Raseknia v. County of Los Angeles CA2/2 (unmodified version)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

JOE RASEKNIA,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES et al.,

Defendants and Respondents.

 B246936

 (Los Angeles County

 Super. Ct. No. BC457999)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Elizabeth Allen White, Judge. Reversed and remanded.

Law Offices of Gloria Dredd Haney, Gloria Dredd Haney for Plaintiff and 

Appellant.

Peterson ● Bradford ● Burkwitz, Avi Burkwitz, Gil Burkwitz for Defendants and 

Respondents.

___________________________________________________
2

Joe Raseknia (appellant) appeals from a summary judgment entered in favor of 

respondents, his employer, the County of Los Angeles (the county), and individual 

Francine Jimenez on his complaint for discrimination, harassment and retaliation in 

violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code,1

§ 12900 et seq.). We reverse on the ground the trial court should have granted a 

continuance and remand for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

The Prior Action and Settlement

Appellant is a deputy probation officer employed with the Central Adult 

Investigation (CAI) unit of the County’s Probation Department. Appellant’s current 

duties generally require him to compile reports relating to criminal defendants, which 

reports are submitted to criminal courts. Appellant’s current position allows him to work 

remotely and/or to telecommute.

Appellant filed a prior lawsuit against the county in June 2008 for retaliation and 

discrimination based on race, national origin and ancestry in violation of the FEHA. The 

prior lawsuit alleged, among other things, that the county denied appellant promotions for 

which he was qualified because he was Persian and Jewish. Appellant alleged that he 

believed that the county did not accurately appraise whether he was promotable because 

he has Persian ancestry. By contrast, less qualified African-American females were 

receiving higher appraisals so they could be promoted. And, despite receiving high 

performance evaluations, during the promotion evaluations, he was denied promotions 

because of biased statements made about his interpersonal skills related to his Middle 

Eastern ancestry. 

The prior lawsuit further alleged that appellant filed complaints regarding alleged 

discrimination with the Equal Employment Opportunity Commission (EEOC) in 2007 

and with the California Department of Fair Employment and Housing (DFEH) in 2008. 

 

1 All further statutory references are to the Government Code unless otherwise 

specified. 
3

Appellant also alleged that, after he filed the complaints, the Director of the Probation 

Department, Charlene Vartanian, retaliated against by harassing him and creating a 

hostile work environment. 

In April 2009, while the prior lawsuit was pending, the Senior Director of the 

Probation Department, Tom Jeanneret, offered appellant a reassignment from Long 

Beach to the CAI unit, which appellant accepted.

On May 11, 2009, appellant underwent a Psychiatric Agreed Medical Examination 

in connection with a workers’ compensation claim. The medical report indicated that 

appellant could not work under Vartanian’s supervision. The report further stated that 

appellant should not be exposed to “undue stress above and beyond that which is to be 

expected for the duties” as a deputy probation officer. By the time the report was 

generated in May 2009, appellant had been moved to CAI and was no longer working 

under Vartanian’s supervision. 

Appellant also had physical work restrictions, which were issued in connection 

with an unrelated workers’ compensation claim. The restrictions were in place several 

years prior to 2009. The physical work restrictions included: no driving over 20 to 25 

miles, limited typing, 25-minute limits on sitting behind a desk, and access to stretching 

his neck, back and arms as needed. 

Also in May 2009, after appellant was transferred to CAI, Robert Smythe, the 

Deputy Director of Administration for the Probation Department, objected to the transfer 

on the ground that it failed to comply with the “bid process” of the employee 

memorandum of understanding. Smythe ordered Jeanneret to tell appellant to report back 

to Long Beach. After appellant filed a grievance, the May 2009 transfer order was 

rescinded. 

In June 2009, Jeanneret told appellant that appellant had to transfer from CAI and 

report to the Rio Hondo area office. The June 2009 transfer order was subsequently 

rescinded.

Appellant was told on October 30, 2009 and November 17, 2009, that he was 

being transferred out of CAI and back to Long Beach. The transfer orders were rescinded 
4

after appellant filed a grievance. None of the attempts to transfer appellant out of the 

CAI assignment ever took effect. 

On February 15, 2010, the parties entered into a settlement agreement which 

required appellant to dismiss the prior lawsuit and the county to pay $20,000 to appellant. 

The settlement agreement contained a waiver of the rights and benefits of Civil Code 

section 1542. The settlement agreement included the following: “[Appellant] agrees to 

dismiss and waive any claim against the County or its agents, not included in this 

complaint case number BC3292940, related to any possible known or unknown claim 

related to the allegations of this complaint except for [appellant’s] workers compensation 

claims.” 

In May 2010, appellant filed a DFEH complaint citing the 2009 attempted 

transfers. On March 10, 2011, respondents conducted an interactive process meeting, 

which prompted the current lawsuit. 

The Current Action

Appellant filed the current action on June 1, 2011, naming as defendants the 

county and Jimenez. Appellant alleged that respondents discriminated against him, 

harassed him and retaliated against him for engaging in the protected activity of opposing 

unlawful employment actions. Respondents continuously humiliated and embarrassed 

him, causing him to lose self-esteem due to threats and harassments about appellant’s job 

responsibilities and assignment. Each time appellant settled into his position at CAI, 

which was an accommodation, respondents ordered him to leave CAI. There was a 

continued hostile work environment for appellant because he feared on a daily basis what 

would happen to him. 

The first amended complaint cited allegations from the prior lawsuit, including 

discrimination after he was not promoted in 2001, 2004, and 2007 based on appellant’s 

race/ethnicity/national origin. The prior lawsuit also alleged that his employer then 

retaliated against appellant for filing a discrimination claim with the EEOC in 2007. In 

2009 after appellant was transferred to CAI to accommodate medical restrictions, Smythe 
5

ordered that appellant be transferred on May 28, June 17, and October 30, 2009, in 

violation of the accommodations.

The first amended complaint alleged, that, in January 2011, Jimenez again 

attempted to transfer appellant. Appellant alleged that the March 10, 2011 interactive 

meeting was supposed to be conducted to discuss any accommodations needed for 

appellant’s medical restrictions. But, Jimenez used the meeting to question appellant’s 

integrity and raise the issue of appellant’s prior lawsuit. The director of the Long Beach 

office made it clear during the meeting that she did not want appellant in her unit. While 

appellant was in Long Beach under Director Vartanian’s supervision, appellant was 

isolated and ignored by his colleagues because of the prior lawsuit.

Appellant also alleged that Jimenez sent him a letter dated March 25, 2011, which 

stated he no longer was in need of accommodation. The letter was discriminatory and 

retaliatory in order to harass him and take away his accommodation. On May 2, 2011, 

appellant was threatened that he was subject to discipline as a result of the March 10, 

2011 interactive meeting.

The first amended complaint contains nine causes of action: retaliation (§ 12940, 

subd. (h))(first); race/ethnicity discrimination (second); age discrimination over the age 

of 40 (third); disability discrimination (fourth); harassment against Jimenez (fifth); failure 

to accommodate (sixth); failure to prevent workplace discrimination (seventh); 

harassment (eighth) and discrimination based on religion (ninth). 

Summary Judgment/Summary Adjudication of Issues

On September 24, 2012, respondents filed a motion for summary judgment or in 

the alternative for summary adjudication of issues, which was set for hearing on 

December 5, 2012. Respondents asserted the majority of the allegations in the first 

amended complaint are barred by the February 2010 settlement agreement. The 

discrimination causes of action (first through fourth) failed because appellant did not 

suffer any adverse employment action and any action taken by the county regarding 

appellant’s employment was supported by legitimate business reasons. 
6

Respondents also asserted that the retaliation cause of action (first) failed because 

there was no causal connection between any protected activity and any alleged adverse 

employment action. The race, age, disability and religious discrimination causes of 

action (second through fourth and ninth) failed because there were no allegations which 

show that appellant was discriminated against for those reasons. Appellant’s only 

evidence on the discrimination claims was that two other employees, one of whom is 

African-American and the other Hispanic, were not subjected to multiple attempts to 

transfer them back to their previous work assignments. However, there is no evidence of 

discrimination based on race, age, or disability. 

Respondents asserted appellant could not prevail on the harassment causes of 

action (fifth and eighth) because appellant could not show any severe or pervasive 

conduct. In addition, personnel management actions do not apply to the harassment 

framework under case law. Appellant cannot establish that any alleged harassment was 

carried out because of a protected characteristic. And, Jimenez was entitled to immunity 

under sections 820.2 and 821.6.

Respondents asserted that they should prevail on the failure to accommodate cause 

of action (sixth) because appellant received an accommodation. The claim was also 

barred by the settlement agreement, the statute of limitations and appellant’s failure to 

exhaust administrative remedies. 

Appellant could not prevail on the failure to prevent discrimination cause of action 

(seventh) because there was no underlying discrimination. 

Appellant’s Request for a Continuance

On November 21, 2012, two days before the opposition to the summary judgment 

was due, appellant filed an ex parte request to continue the December 5, 2012 hearing 

and the trial date of January 9, 2013. Appellant’s counsel filed a declaration which 

outlined reasons for the continuance request. Among the reasons was the need to conduct 

additional discovery. Counsel declared that she needed a continuance in order to compel 

the deposition of respondents’ counsel, Avi Burkwitz, as to the extent of the February 

2010 settlement agreement. 
7

Counsel also declared that she needed a continuance to depose appellant’s expert, 

Dr. Jeffrey Bone, about two supplemental psychological reports issued on January 18, 

2011 and November 7, 2011, and reports in 2012 concerning the effects of threats to 

transfer appellant back to the Long Beach office. The evidence would refute the claims 

that there were no adverse actions taken again appellant. 

Appellant claimed that the deposition of Dwight Thompson, the Field Vice 

President for Local Union 685, was necessary because he attended the March 10, 2011

interactive meeting and would provide evidence as to the purpose of the meeting. 

Thompson would also provide evidence concerning the threats of discipline made against 

appellant and Thompson during and after the interactive meeting. Because he is a union 

officer, Thompson could testify or identify similarly situated employees by 

age/race/ethnic origin and disability. 

The deposition of Dave Leone, the Acting Deputy Director of the Field Services 

Division for the Probation Department, was needed because he was willing to provide a 

declaration/evidence that Jimenez was determined to force appellant back to the Long 

Beach office. And, that there was no legitimate business reason to do so. Leone could 

testify or identify similarly situated employees by race/ethnic origin and disability.

Counsel declared that she had not been able to respond appropriately to the 

summary judgment motion because her father suffered from Alzheimer’s and she was his 

primary caretaker. In September 2012 after she was served with summary judgment, his 

condition worsened to point that she was at a crisis level. In addition, another family 

member, who depended on counsel, had cancer. Counsel had not been able to focus on 

the opposition and discovery matters as she had done earlier in the year. Counsel then 

listed discovery she had conducted earlier in the year and the existence of outstanding 

discovery she had served on November 5, 2012. In addition, she and union counsel had 

been attempting to find a date to depose Thompson. 

Respondents opposed the ex parte application to continue the hearing on the 

summary judgment motion on the grounds: a motion to compel is not a proper matter for 

an ex parte application; respondents filed a protective order request after appellant served 
8

notice of intent to depose counsel; and the subject matter of the proposed deposition of 

respondents’ counsel is privileged. Respondents also argued that the request failed to 

show that appellant acted with reasonable diligence in obtaining the discovery. The 

complaint was filed in June 2011. The summary judgment motion was filed in 

September 2012. The request for a continuance was made two months later and two days 

before the opposition was due. No explanation was offered as to why the requested 

discovery was not conducted prior to that time. 

The trial court denied the ex parte application on November 21, 2012. Appellant 

filed opposition to the summary judgment motion on November 26, 2012, in which he 

renewed his request for a continuance. 

Evidence from the Separate Statements

With noted exceptions, the parties agreed that the following facts were not 

disputed. In May 2009, after appellant was transferred to CAI, Smythe objected to the 

transfer on the ground that it failed to comply with the “bid process” of the employee 

memorandum of understanding. Appellant claimed that Smythe’s objection was not valid 

because the transfer had been approved by the Chief of the Probation Department, as well 

as the union. 

In May 2009, Smythe ordered Jeanneret to tell appellant to report back to Long 

Beach. The parties dispute whether, at the time Smythe made the decision to rescind 

appellant’s reassignment to CAI, Smythe was aware of the details regarding appellant’s 

prior lawsuit, including work restrictions and appellant’s Middle Eastern and Jewish 

heritage. According to appellant, Smythe would have known because his subordinate, 

Jimenez, conducted the investigation of the FEHA complaint, which was the basis of 

appellant’s prior lawsuit. Jimenez was also the coordinator for compliance with the 

Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA) and was aware of 

appellant’s work restrictions. Although Smythe was never involved with appellant’s 

daily work and work performance, his subordinate, Jimenez, investigated appellant’s 

claims. After appellant filed a grievance, the May 2009 transfer order was rescinded. 
9

In June 2009, Jeanneret told appellant that appellant had to transfer from CAI and 

report to the Rio Hondo area office. The June 2009 transfer order was subsequently 

rescinded.

Appellant was told on October 30, 2009 and November 17, 2009, that he was 

being transferred out of CAI and back to Long Beach. The transfer orders were rescinded 

after appellant filed a grievance. None of the attempts to transfer appellant out of the 

CAI assignment ever took effect. However, appellant argued that the continuing attempts 

to send him back to the Long Beach office exacerbated his disability. Appellant raised 

the issue of the attempted transfers in the prior lawsuit in opposition to the summary 

judgment motion. 

Appellant admitted at his deposition that he was not aware of any work 

restrictions, which specifically required him to be assigned to CAI instead of another 

county facility.

On February 15, 2010, the parties entered into a settlement agreement which 

required appellant to dismiss the prior lawsuit in exchange for $20,000. The settlement 

agreement contained a waiver of the rights and benefits of Civil Code section 1542. The 

settlement agreement included the following: “[Appellant] agrees to dismiss and waive 

any claim against the County or its agents, not included in this complaint case number 

BC3292940, related to any possible known or unknown claim related to the allegations of 

this complaint except for [appellant’s] workers compensation claims.” Appellant 

admitted that the first instance of alleged improper behavior, which occurred after the 

February 2010 settlement agreement was executed, occurred in a March 2011 interactive 

process meeting.

Appellant’s May 2010 DFEH complaint caused the county’s Office of Affirmative 

Action Compliance (OAAC) to begin an investigation into the allegations of the 

complaint. According to Jimenez, in December 2010, an investigator from the OAAC 

contacted her for information about appellant’s claims. Jimenez’s position as an ADA 

coordinator required that she investigate alleged policy violations based on disabilities. 

Respondents claim that based on appellant’s assertion in the 2010 DFEH compliant that 
10

the employer failed to accommodate his disability, Jimenez referred the matter to her 

supervisor for guidance on how to proceed. Respondents produced evidence that an 

interactive process meeting was needed to discuss what accommodations appellant 

needed.

Appellant filed a declaration which stated the interactive process meeting was 

called for the purpose of harassing him and to threaten him with discipline. The meeting 

was held on March 10, 2011. Among those attending the meeting were appellant, his 

attorney, a union representative, a return-to-work coordinator, Jimenez and the Director. 

In addition, appellant argued that, because he had named Jimenez in the DFEH 

complaint, the county had a duty to have a different person investigate his claims. 

Jimenez conducted the investigation and “then took away” appellant’s need for an 

accommodation because appellant engaged in a protected activity and for the purpose of 

continuing to harass appellant. Appellant noted that his treating physician had never 

indicated that appellant did not need an accommodation. 

The parties dispute what occurred at the meeting. Respondents assert that Jimenez 

attempted to advise appellant that the purpose of the March 10, 2011 meeting was to see 

if his work restrictions were being met. But, the tenor of the meeting became contentious 

and resulted in appellant’s union representative using profanities. Appellant also accused 

Jimenez of harassing him.

Appellant declared that, during the meeting, he was harassed regarding his 

previous complaints of discrimination and his previous lawsuit. He denied that his union 

representative used profanity.

The parties also disputed what occurred during and after the meeting regarding 

appellant’s need for an accommodation under the ADA. Respondents claimed appellant 

admitted that his work restrictions were being accommodated at CAI. Appellant 

admitted in his deposition that the issue of transferring him to Long Beach was not raised 

in the meeting. He also admitted that Jimenez never told him that he did not qualify 

under the ADA. By contrast, appellant asserted that Jimenez indicated that he no longer 

needed an accommodation even though his treating physician had not changed the need 
11

for one. Appellant cited a letter sent by Jimenez dated March 25, 2011, which he claims 

falsely stated that he did not need an accommodation under the ADA. The letter 

provides: “During the ‘Interactive Process Meeting’ held on March 10, 2011, you 

confirmed that currently, you are not in need of accommodation under the ADA 

(Americans with Disabilities Act) through my office. As such, I will close my file 

effective immediately. [¶] If in the future you are in need of accommodation, please 

contact me . . . .”

None of the attempts to transfer appellant out of the CAI assignment ever took 

effect. However, appellant argued that the continuing attempts to send him back to the 

Long Beach office exacerbated his disability.

In addition, since his reassignment, appellant has never received any substandard 

performance evaluations, criticisms of his work, suspensions, or letters of reprimand or 

warning. The CAI assignment accommodates his work restrictions. Appellant does not 

have any complaints with his current assignment.

On December 5, 2012, the trial court denied appellant’s renewed request for a 

continuance. The trial court then summarily adjudicated each of the causes of action in 

favor of respondents and granted summary judgment. On January 25, 2013, the trial 

court denied appellant’s motion for new trial. Appellant filed a timely notice of appeal 

from the judgment.

DISCUSSION

Appellant claims the trial court erred in denying his request for a continuance. 

Code of Civil Procedure section437c, subdivision (h) provides: “If it appears from the 

affidavits submitted in opposition to a motion for summary judgment or summary 

adjudication or both that facts essential to justify opposition may exist but cannot, for 

reasons stated, then be presented, the court shall deny the motion, or order a continuance 

to permit affidavits to be obtained or discovery to be had or may make any other order as

may be just. The application to continue the motion to obtain necessary discovery may 

also be made by ex parte motion at any time on or before the date the opposition response 

to the motion is due.” 
12

Code of Civil Procedure section 437c, subdivision (h) was enacted “‘“[t]o mitigate 

summary judgment’s harshness”’” as to “‘an opposing party who has not had an 

opportunity to marshal the evidence.’ [Citation.]” (Cooksey v. Alexakis (2004) 123 

Cal.App.4th 246, 253.) There is a conflict in the law as to whether a continuance is 

mandated if the affidavit requesting the continuance meets the requirements of Code of 

Civil Procedure section 437c, subdivision (h). (Compare Rodriguez v. Oto (2013) 212 

Cal.App.4th 1020, 1038, fn. 7 [continuance is not mandated by the terms of the statute 

given the words granting the trial court authority to “make any other order as may be 

just” (Code Civ. Proc., §437c, subd. (h)) contemplating an exercise of discretion 

including reasonable or lack of diligence] with Johnson v. Alameda County Medical 

Center (2012) 205 Cal.App.4th 521, 532 [continuance must be granted when good faith 

showing is made by affidavit that a continuance is necessary to obtain essential facts to 

oppose summary judgment motion], Park v. First American Title Co. (2011) 201 

Cal.App.4th 1418, 1427 [same].) In any event, the declaration or affidavit must detail 

specific facts which would establish the existence of material controverting evidence. 

(Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.) 

In this case, appellant’s counsel presented a declaration which showed that she 

needed to conduct additional discovery as to at least three witnesses: Dr. Bone, 

Thompson, and Leone. Dr. Bone would present evidence concerning the effects of 

continued threats against appellant. Thompson, who attended the interactive process 

meeting as appellant’s union representative, would provide evidence of threats made 

during and after the meeting. Leone, who was the Acting Director during pertinent times, 

would describe Smythe’s conduct and the absence of a legitimate business reason for 

continuing to threaten appellant with transfers. Counsel’s declaration showed that 

plaintiff may discover evidence pertinent to his claims concerning the purpose, nature 

and result of the March 2011 interactive process meeting. Specifically, appellant claimed 

that the meeting involved continued threats about transferring him from CAI as well as 

threats of discipline. Appellant also asserted that, notwithstanding his need to continue 
13

his stress and physical accommodations, Jimenez claimed he no longer needed any 

accommodations. 

In addition, counsel listed discovery she had conducted earlier in the year and the 

existence of outstanding discovery she had served on November 5, 2012. Counsel also 

declared that she and union counsel had been attempting to find a date to depose 

Thompson. Thus, counsel’s declaration showed a justification for the continuance by 

showing the facts expected to be discovered and how the evidence would be used. 

Because counsel identified the specific issues that the witnesses would testify to and how

the evidence was needed to meet appellant’s summary judgment burden, the trial court 

should have granted a continuance under Code of Civil Procedure section 437c,

subdivision (h). 

Even if the continuance was not mandatory, counsel also requested additional time 

to respond to the summary judgment motion under the trial court’s broad discretionary 

power. We review the denial of such a request for an abuse of discretion. (Johnson v. 

Alameda County Medical Center, supra, 205 Cal.App.4th at p. 532.) Counsel identified 

personal circumstances which precluded her from responding properly to the summary 

judgment motion in a timely manner. Counsel requested additional time due to 

responsibilities surrounding her father’s Alzheimer’s condition. At the same time, 

counsel was required to care for a family member who had cancer. Here, the medical 

conditions of two people, who relied on counsel for their care, was good cause for at least 

a short continuance. (See Cal. Rules of Court, rule 3.1332(c)(3) [illness is a 

circumstances that may indicate good cause]; Lerma County of Orange, supra, 120 

Cal.App.4th at p. 716.) 
14

DISPOSITION

The summary judgment is reversed. The matter is remanded to the trial court for 

further proceedings without prejudice to respondents’ filing a motion for summary 

judgment and/or summary adjudication of issues.

Appellant is awarded his costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

FERNS, J.*

We concur:

BOREN, P.J.

ASHMANN-GERST, J.

_______________________________________________________________

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.