(Santa Clara County Super. Ct. No. 109CV159169) Trial Court: Santa Clara County Superior Court Trial Judge Hon. Kevin McKenney
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
In this proceeding petitioner Mustafa Rehmani seeks a writ of mandate to overturn an order granting summary adjudication to his employer, real party in interest Ericsson, Inc. Rehmani contends that the superior court erroneously dismissed his claims of workplace harassment based on national origin and religion, violations of the Fair Employment and Housing Act (FEHA), Government Code section 12940.*fn1 We agree with Rehmani that triable issues exist as to Ericsson's liability for harassment. We will therefore grant the petition and issue the writ.
Petitioner Rehmani, a Muslim born in Pakistan, worked as a System Test Engineer for Ericsson from February 2007, when Ericsson acquired Rehmani's prior employer, to November 13, 2009, the day he was terminated. During his tenure at Ericsson he had co-workers from at least 12 different countries, including India, China, and Pakistan. Three of those co-workers -- Amit Patel, Aneel Choppa, and Ashit Ghevaria -- originally were, along with Ericsson, the objects of the underlying lawsuit in this case. Rehmani contends that those three harassed him based on his Pakistani nationality and his Muslim faith, and that his supervisor, Afarin Daftari, took no remedial action when he reported this conduct.
By November 2, 2009, the Human Resources department (HR) had come to believe that Rehmani had sent e-mail to a number of Ericsson employees, using Choppa's name. The e-mail contained a spreadsheet of confidential salary information. HR then suspected that Rehmani had also been the one who had sent e-mail to an Ericsson customer disparaging the Ericsson management team. The HR director and the Vice President of Engineering decided to interview Rehmani on November 9, using questions to be drafted by November 6.
On November 6, 2009, Rehmani reported to the HR director, Dawn Ehrsam, that he had experienced harassment, in that Ghevaria and other Indian employees had been uncooperative toward him and Ghevaria had humiliated him over technical matters. Between November 9 and 18, he reported additional instances showing lack of support and rudeness from co-workers, particularly Ghevaria. Rehmani also complained that he had suffered "salary discrimination" because his salary was not commensurate with his years of experience, as well as "promotion discrimination" because Indian employees were promoted while he was not.
Rehmani was terminated on November 13, 2009, after Rehmani admitted having sent the prohibited e-mails under his co-workers' names. He filed his complaint the following month, December 11, 2009, naming Ericsson, Patel, Choppa, and Ghevaria as defendants. Of the eight causes of action in the complaint, only the first two were against his co-workers as well as Ericsson: harassment based on national origin and harassment based on religion. The remaining claims against Ericsson were for employment discrimination (by failing to promote and by terminating him) based on national origin and religion, retaliation, failure to investigate and prevent harassment and retaliation, wrongful termination, and unfair business practices.
Defendants moved for summary judgment, or alternatively, summary adjudication. They contended, among other things, that the comments alleged to be harassing did not relate to national origin or religion and could not be considered severe or pervasive. The superior court granted summary adjudication of the first two causes of action, because the undisputed facts "demonstrate that Plaintiff was not subjected to unwelcome harassment based on religion and/or national origin, and/or the harassment did not unreasonably interfere with his work performance by creating an intimidating, hostile, or offensive work environment." The court also granted summary adjudication of the fourth cause of action for discrimination based on religion; but it denied the defendants' motion as to discrimination based on national origin--not with respect to the termination of Rehmani, but in the allegation that Ericsson consistently promoted Indians over non-Indians. The court also denied summary adjudication on the remaining claims of retaliation, failure to investigate and prevent discrimination and retaliation, and wrongful termination.
Rehmani then filed this petition for a writ of mandate, seeking immediate relief to foreclose the prospect of duplicate trials should an appeal result in a favorable outcome. This court issued a stay of the trial court proceedings, followed by an order to show cause.
Discussion 1. Writ Review
An order granting summary adjudication may be reviewed by way of a petition for writ of mandate. (Code Civ. Proc., § 437c, subd. (m)(1).) Appealing from a judgment after trial ordinarily provides an adequate remedy at law for a party aggrieved by an order granting summary adjudication. Writ review may be proper, however, "where a pretrial ruling has summarily disposed of a large portion of the case, while several causes of action remain for trial." (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319.) We grant writ review here to obviate a duplicative expenditure of resources for the courts and the parties, because any reversal of the judgment on appeal would require a second trial on claims that arise out of the same facts and overlap with the issues in those causes of action that have withstood the summary adjudication motion. (Ibid.; Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1183.)
2. Summary Adjudication Principles
Code of Civil Procedure section 437c, subdivision (f)(1), allows a party to move for summary adjudication "as to one or more causes of action within an action . . . if that party contends that the cause of action has no merit . . . ." "A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment." (Code Civ. Proc. § 437c, subd. (f)(2).) Accordingly, "[a] summary adjudication motion is subject to ...