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DeJung v. Superior Court of Sonoma County

December 19, 2008


(Sonoma County Super. Ct. No. SCV-237679). Trial Judge: Hon. Frank S. Peterson (Ret.).

The opinion of the court was delivered by: Ruvolo, P. J.



Appellant Theodore DeJung (DeJung), formerly employed as a commissioner by respondent Sonoma County Superior Court (Superior Court), brought an age discrimination case against the Superior Court under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).*fn1 The trial court granted the Superior Court's motion for summary judgment, finding (1) the Superior Court is protected from suit under FEHA based on the affirmative defense of discretionary immunity (§§ 815.2, subd. (b), 820.2, subd. (b)), and (2) DeJung did not raise a triable issue of fact with regard to his alleged age discrimination claim. On this appeal, DeJung contends that statutory immunity does not protect against direct public entity liability under FEHA, and there are triable issues of fact relating to the discrimination claim. We agree with these contentions, and reverse.


Upon appeal following a grant of summary judgment by the trial court, "[t]he Supreme Court has described our duty as follows: 'In ruling on the motion, the court must "consider all of the evidence" and "all" of the "inferences" reasonably drawn therefrom ([Code Civ. Proc.,] § 437c, subd. (c)), and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 . . . .) 'All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. [Citation.]' (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049 . . . .)

" 'Therefore, if a plaintiff in response to a defendant's summary judgment request demonstrates the existence of a triable dispute with "specific facts" ([Code Civ. Proc.,] § 437c, subd. (o)(2)) by making a prima facie showing of the merit of the complaint, the motion must be denied. There is to be no weighing of evidence. [Citations.]' (Kids' Universe[ v. In2Labs (2002)] 95 Cal.App.4th [870,] 880 . . . .) Moreover, equally conflicting evidence requires denial of a summary judgment motion and a trial to resolve the dispute. (Ibid.; see also Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 724 . . . ; Livingston v. Marie Callenders, Inc. (1999) 72 Cal.App.4th 830, 839-840 . . . .)" (McIntosh v. Mills (2004) 121 Cal.App.4th 333, 338.)

It is with these principles in mind that we summarize the evidence presented below in a light most favorable to DeJung, both in testing the Superior Court's claim of immunity, and in determining if triable issues of fact exist regarding the merits of his claim. In fulfilling this duty, we recognize that the Superior Court introduced evidence refuting most, if not all, of the facts and inferences alleged by DeJung, including those relied on in establishing discriminatory animus. We "emphasize that our analysis is confined to evaluating inferences which may, but need not, be drawn from this record. It is not for us to say whether they represent the best or only inferences. Our task must end with the conclusion that they are inferences a reasonable factfinder could draw." (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 121 (Reeves).

DeJung was born on August 23, 1939, and was admitted to the California bar in January 1972. In 1976, after four years of private practice in Santa Rosa, California, DeJung became a traffic referee for the Sonoma County Municipal Court (Municipal Court). In 1982, DeJung took a full-time position as a Municipal Court commissioner. DeJung remained a full-time commissioner for approximately 14 years, until 1996.

In approximately 1995, Gail Guynup (Guynup), who was then a Municipal Court judge, approached DeJung about her retiring and then splitting the full-time commissioner position with him. The presiding judge of the Municipal Court approved of the time-split suggestion. From 1996 through the spring of 2004, Guynup and DeJung split the full-time commissioner position between them, with each working alternating two-month stints. During the same time period, DeJung also filled in for judges who were absent, and would take overflow from judges with full calendars.

In December 2003, Guynup approached DeJung and told him her father had recently died and she would not work beyond April 1, 2004. DeJung then approached the presiding judge of the Superior Court,*fn2 Allan Hardcastle (Hardcastle), about Guynup's decision. DeJung expressed his own desire to find a replacement for Guynup and to continue splitting the full-time commissioner position. To that end, Hardcastle suggested DeJung contact Dean Beaupré, a retired Alameda County Superior Court judge, who occasionally served on assignment and as a temporary judge. Around that same time, Walter Risse (Risse), a former public defender, contacted DeJung and expressed interest in replacing Guynup as the person who split the full-time commissioner position with DeJung. DeJung indicated this was agreeable, and told Risse to contact Hardcastle about the proposal. Risse met with Hardcastle, and Hardcastle encouraged Risse to apply for the half-time commissioner position.

During the first half of January 2004, DeJung went to Hardcastle's chambers to inquire about Hardcastle's reaction to Risse. Hardcastle told DeJung that the Superior Court's executive committee (Executive Committee), which Hardcastle chaired,*fn3 had decided not to continue splitting the full-time commissioner position. Although surprised by Hardcastle's statement, DeJung replied that if that was the Executive Committee's preference, he would like to continue as a full-time commissioner. Hardcastle said he would discuss it with the Executive Committee.

Approximately a week later, DeJung again met with Hardcastle in Hardcastle's chambers. The meeting concerned the status of DeJung's request for the full-time commissioner position. At this meeting, Hardcastle told DeJung that "they want somebody younger, maybe in their 40's." After hearing this statement, DeJung left Hardcastle's chambers and went to the courthouse coffee shop, where he encountered Sonoma County Public Defender John Abrahams, a prosecutor named Stephan Passalacqua (now the Sonoma County District Attorney), and a local trial attorney named Andy Martinez. When Martinez asked DeJung why he appeared to be distressed, he related Hardcastle's statement to the attorneys. Martinez responded, "They can't do that."

A day or two later, DeJung returned to Hardcastle's chambers to confirm that Hardcastle had told the Executive Committee about DeJung's request to return to the commissioner position full time, and that Hardcastle had later informed DeJung that the Executive Committee wanted somebody younger. Hardcastle confirmed both statements with a nod. DeJung inquired whether there had been any complaints from clerks, staff or others about DeJung's work. Hardcastle said there were two written complaints from litigants unhappy with the result of their cases. Immediately following this meeting, DeJung made handwritten notes of the substance of the conversation.

Steve Rigg (Rigg) was a 24-year veteran of the Sonoma County Sheriff's Department. From 1995 to 2003, he was a bailiff for DeJung. After learning of Guynup's decision to leave, Rigg encountered Hardcastle in Hardcastle's courtroom shortly after court adjourned. Rigg asked Hardcastle, "What's going on with Ted [DeJung]?" Hardcastle responded, "Ted's a great guy, but we're looking for someone younger."

Thereafter, the Executive Committee held a meeting at which it decided to recruit for a full-time commissioner. The Executive Committee established two panels for the recruitment process. The screening panel was comprised of Judges Knoel Owen and Laurence Sawyer, and Commissioners Dennis Beaman and Stephany Joy. The interview panel was comprised of Judges Raima Ballinger, Robert Boyd and Hardcastle.

DeJung applied for the full-time commissioner position on March 13, 2004. The screening panel, of which Hardcastle was not a member, reviewed 53 applications and selected 12 candidates for interviews. DeJung was among the 12 selected to be interviewed. The ages of the other 11 candidates selected were, at the time of their interviews, between the ages of 37 and 62.*fn4

The members of the interview panel ranked their top choices after engaging in extensive discussions. None of them ranked DeJung as a top choice. Each member of the interview panel stated in declarations in support of the Superior Court's summary judgment motion that DeJung was not a top choice because of his interview performance, his reputation, and the superb quality of the other candidates. The candidates selected as the interview panel's top three choices were 62, 56, and 50 years old.

At a judicial business meeting on May 7, 2004, the members of the interview panel released their ranking of the candidates to the entire Superior Court judiciary. The judges then discussed the candidates' qualifications, abilities, and experience. During the meeting, someone asked where DeJung was placed in the rankings, and Hardcastle said he had rated DeJung seventh on his list, and that DeJung's performance at the ...

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