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Santostefano v. County of San Joaquin11/8/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Joseph Santostefano appeals from summary judgment entered in favor of defendants County of San Joaquin (the County), Robert Montgomery, Carolyn Contreras, Larry Yescas, Mike Stanco, Rod Alter, and Darren Sandoval, in plaintiff's action for employment discrimination and harassment in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), defamation, and intentional infliction of emotional distress. Plaintiff contends that summary judgment was wrongly granted with respect to his claims of employment discrimination and harassment, and that the trial court erred in granting reconsideration of its initial decision to deny summary judgment regarding Alter and the County on the defamation claim. Defendants cross-appeal, asserting that the court erred in denying them an award of attorney fees.
We will affirm summary judgment in favor of all defendants. We also conclude that defendants Montgomery, Contreras, Yescas, Stanco, Sandoval, and the County (insofar as it undertook their defense) are entitled to a limited award of defense expenses, including reasonable attorney fees, regarding the claims of defamation and intentional infliction of emotional distress. Consequently, we will remand the matter to the trial court with directions to make an appropriate allocation and award of defense expenses pursuant to Code of Civil Procedure section 1038.
FACTS
Since this is an appeal from the entry of summary judgment, we independently examine the record to determine whether triable issues of fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In doing so, we view the evidence in a light most favorable to plaintiff as the losing party. (Id. at p. 768.)
A motion for summary judgment must be supported and opposed on the basis of affidavits, declarations, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (Code Civ. Proc., § 437c, subd. (b)(1) & (2).) The parties must provide admissible evidence in support of their positions. (Code Civ. Proc., § 437c, subd. (d).) In opposing summary judgment, it is not enough to simply assert that a matter is disputed or to argue legal conclusions. (See Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, 126.)
Accordingly, we will not consider such things as unsupported allegations in plaintiff's complaint, in his points and authorities, or in his brief on appeal. (See Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181.) Since most of plaintiff's factual assertions in his opening brief on appeal and in his trial court points and authorities are unsupported, and even contradicted, by the evidence in the record, we will disregard them.
Viewed in the proper light, the record reflects the following:
Plaintiff began working as a group counselor assistant at the County's juvenile hall around January 1999. He was promoted to group counselor, level one, in January 2000, and was assigned to the job of community service supervision, which involves supervising juveniles assigned to the electronic monitoring program. In January 2001, plaintiff moved to the juvenile probation department as a probation officer. He remained in juvenile probation until July 2001, when he requested a voluntary transfer back to his group counselor position. He subsequen
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