Tillotson v. Bank of America

Filed 6/19/07 Tillotson v. Bank of America CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dunn, Judge. Affirmed.

Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich, D. Aaron Brock, and Nicholas W. Sarris, for Plaintiff and Appellant.

Steefel, Levitt & Weiss, Jeffrey A. Wortman and Nicholas J. Wenbourne, for Defendants and Respondents.

__________________

Joseph Tillotson, a former financial advisor at Banc of America Investment Services, Inc. (BAI), appeals from the judgment entered after the trial court granted summary judgment in favor of BAI, Bank of America (Bank) and two BAI and Bank employees in Tillotsons action for defamation, wrongful termination and related employment claims. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Tillotsons Employment by BAI

BAI, a member of the National Association of Securities Dealers, is a securities broker-dealer. Although BAI is a subsidiary of the Bank, it operates independently of its parent to provide financial and investment services to Bank customers and other BAI clients.

BAI executive Barry Brundage hired Tillotson in March 2001 as a BAI financial advisor to provide investment advice and services to BAI customers in assigned Bank locations. At the time he was hired, Tillotson was 57 years old. From March 2001 to May 2003 Rod Tawasha was branch manager of the Banks Peninsula Center office, where Tillotson was primarily assigned. Beginning in June 2003 through the time of Tillotsons termination on March 19, 2004, Eloise Elder was branch manager at the Peninsula Center office.

2. Concerns About Tillotsons Job Performance

In his separate statement of disputed and undisputed material facts in opposition to the motion for summary judgment, Tillotson conceded that, immediately upon being hired, his conduct began to raise concerns for Brundage. Specifically, although Brundage had asked Tillotson directly during two face-to-face interviews about any prior customer complaints, Tillotson failed to inform him about two complaints that had been included by Tillotson on a mandatory, regulatory disclosure form. Similarly, although disputing the accuracy of some of the charges, Tillotson acknowledged that issues regarding four of his clients in the second half of 2001 raised serious concerns about his failure to discharge core broker obligations, including keeping accurate records, ensuring that clients made suitable investments and ensuring that clients understood the risks involved with particular investment decisions. On February 15, 2002, after Brundage brought the issues involving these four clients to the attention of his supervisor, Frances Kimbrough, Brundage placed Tillotson on heightened supervision, a formal BAI disciplinary action that required Tillotson show immediate and sustained improvement and strict adherence to the [BAI] Code of Conduct and all compliance related activities and also restricted Tillotsons sales activities by requiring he obtain supervisor approval for certain securities trades. Tillotson remained on heightened supervision until July 2002.

In May 2003 BAI issued Tillotson a letter of caution for further failure to follow BAI guidelines. In June 2003 it issued him a letter of education for failure to adhere to certain company polices regarding pricing of products. This letter warned, [f]uture violations of any of the firms policies and procedures will result in further disciplinary actions, up to and including termination. A number of additional client complaints were lodged against Tillotson in 2003. Although he disputes the validity of the complaints, Tillotson admits they were made and does not dispute the number of customer complaints and procedural violations was a significant concern to BAI or that he posed an increasing potential liability for BAI.

Notwithstanding these client complaints and compliance problems, Tillotson received several commendations for his productivity during his tenure at BAI. In May 2002 he was recognized as a Leader for referring clients to Premier Banking. In July 2003 the national sales director for BAI sent Tillotson a letter congratulating him for his production and stating his commitment to excellence was greatly appreciated.

Nonetheless, in March 2004, according to BAI, a new issue emerged involving the amount of commissions taken by Tillotson on several trades for an elderly client. In October 2003 Tillotson had invested approximately $15 million for the client in municipal bonds with long-term maturities. Tillotson took the maximum three-point commission for the trades. When asked to explain the rationale for the long-term investments in light of the clients age, Tillotson said it was for estate-planning purposes. In early March 2004, however, Tillotson replaced the long-term bonds with bonds with shorter term maturities. He again took the maximum commission for the trades. Questioned about the replacement trades by BAIs compliance department, Tillotson said the client had decided to shorten the maturities for estate-planning purposes and was also influenced by current market conditions. Both BAI compliance and Brundage considered Tillotsons decision to take the highest commission on related transactions with different maturities suspicious.

Additionally in March 2004 BAI learned one of Tillotsons clients had complained he had made an unauthorized trade on her account. Rather than respond to the complaint in accordance with BAIs compliance policy by rescinding the transaction, Tillotson, who asserts it was the clients error and not an unauthorized trade, offered her several alternative remedies, each of which would generate a new commission for him. Brundage, who had kept Kimbrough informed about his on-going concerns with Tillotson due to large number of client complaints and compliance violations, again consulted with her as a result of the March 2004 issues. BAI decided to terminate Tillotson; Brundage was the primary decision maker.

Tillotson was 61 years old when he was discharged on March 19, 2004. Eddie Liu, a BAI employee at the time of Tillotsons termination, took over some of Tillotsons responsibilities following his discharge. Liu is approximately 20 years younger than Tillotson.

3. Tillotsons Strained Relationship with Elder

Banking Center managers are a significant source of referral business for BAI financial advisors working in their branches. For purposes of their summary judgment motion, defendants did not dispute that, after Elder became branch manager at the Peninsula Center Banking Center in June 2003 (more than two years after he began providing financial services at the branch), Tillotsons referrals severely dropped.

In October 2003 Tillotson received an email from a branch banker listing Tillotson as the investment advisor for one of the branchs largest depositors. Elder subsequently notified Tillotson the client already had a broker and Tillotson was not going to acquire the account. Shortly thereafter, Tillotson overheard Elder discussing him with another Bank employee, Nell Holder, in the branch lunch room. According to Tillotson, Elder said Tillotson was unethical because she believed he was trying to steal clients from other brokers. Tillotson asked to speak with Elder and told her that her comments would damage his ability to do business for BAI at the branch.

Two days later Tillotson overheard another conversation between Elder and Holder in which, according to Tillotson, Elder said, in part, he does not relate well with the younger clients because he is too old.[1] Tillotson immediately confronted Elder and insisted they needed to talk. Elder replied she did not have time to do so, although Tillotson indicated she later agreed to speak to him.

Following these events, on November 12, 2003 Elder sent an email to Brundage seeking a replacement for Tillotson: I feel that my banking center needs a new financial advisor due to Joes inability to get along with my staff and provide our customers with the services they require. At a meeting in January 2004 attended by Tillotson, Brundage, Elder and Elders supervisor to discuss the difficulties in Tillotsons and Elders working relationship, Tillotson made a commitment to resolve the differences between them. Elder expressed no similar commitment during the meeting. Immediately following the meeting Brundage told Tillotson he should make an effort to get along with Elder. Elder believed the meeting had been successful: For the next several weeks, our relationship was significantly improved and no further issues arose between me and Tillotson. In her declaration submitted in support of the motion for summary judgment, Elder stated she was not involved in the decision to fire Tillotson and was not aware BAI had terminated his employment until after it had occurred.

3. Tillotsons Complaint, the Motion for Summary Judgment and the Trial Courts Decision

On August 26, 2004 Tillotson filed a lawsuit in Los Angeles Superior Court against BAI, the Bank, Brundage and Elder, alleging eight causes of action for age discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.),[2]wrongful termination in violation of public policy, defamation and several other related tort and employment claims. On July 1, 2005 all four defendants moved for summary judgment or, in the alternative, summary adjudication as to each of Tillotsons claims. In his opposition papers, Tillotson stated he did not oppose the motion with respect to any claims except his first cause of action for age discrimination in violation of FEHA against BAI, his second cause of action for wrongful termination against BAI and his fifth cause of action for defamation against Elder and the Bank.

A hearing was held on defendants motion for summary judgment on September 20, 2005. The trial courts order granting summary judgment was filed October 3, 2005; judgment was entered in favor of BAI, the Bank, Brundage and Elder on November 28, 2005. In its order granting the motion the trial court concluded, with respect to the discrimination and wrongful termination causes of action, Tillotson had not raised a triable issue that the nondiscriminatory reasons offered by BAI for his termination were a pretext for age-based discriminatory animus and, therefore, could not rebut the legitimate nondiscriminatory reasons offered for his termination.[3] With respect to Tillotsons defamation claim, the court concluded, as to Elder, no liability exists for statements made by coworkers regarding personnel-related matters and, as to both Elder and the Bank, the allegedly defamatory statements were privileged and nonactionable statements of opinion.

Tillotson filed a timely notice of appeal limited, as was his opposition in the trial court, to the claims for age discrimination and wrongful termination against BAI and defamation against Elder and the Bank.

CONTENTIONS

Although Tillotson concedes BAI proffered a legitimate nondiscriminatory reason for his termination, he contends summary judgment was improper because he raised a triable issue of fact as to whether that reason was a pretext for age discrimination. Tillotson also contends, while admitting Elders statements were work-related and transmitted only to one of her colleagues on the branch staff, the trial court erred in ruling that no coworker liability exists for personnel related statements and that the allegedly defamatory statements were otherwise privileged or nonactionable.[4]

DISCUSSION

1. Governing Law and Standard of Review

FEHA prohibits an employer from, among other things, using age to discriminate against an employee in connection with hiring, firing or promotions. ( 12940, subd. (a); see 12941, subd. (a) [Legislature reaffirms and declares its intent that the courts interpret the states statutes prohibiting age discrimination in employment broadly and vigorously, in a manner comparable to prohibitions against sex and race discrimination].) [A] reasonable inference, that is, a prima facie case of age discrimination arises when the employee shows (1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003, fns. omitted.)[5]

Tillotsons claim age discrimination under FEHA requires proof of discriminatory intent. ( 12940, subd. (a); Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 198 [discharge is not on the ground of age within meaning of FEHA unless age is motivating factor in decision]; see Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 642 [discriminatory intent necessary element of disparate treatment claim under FEHA].) Because direct evidence of discriminatory intent is rare, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] for trying discrimination claims based on a theory of disparate treatment. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356-357 (Guz).) At trial, the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. . . . [] . . . [] If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. . . . [] Accordingly, at this trial stage, 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. [Citations.] [] If the employer sustains this burden, the presumption of discrimination disappears. [Citation.] The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination or to offer any other evidence of discriminatory motive. [Citations.] . . . The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. [Citations.] (Id. at pp. 354-356.)

An employer moving for summary judgment on a FEHA cause of action requiring proof of discriminatory intent can negate that element and shift the burden to the plaintiff by producing evidence of a legitimate, nondiscriminatory reason for the allegedly adverse employment action. (Guz, supra, 24 Cal.4th at pp. 356-357; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150; see Code Civ. Proc., 437c, subd. (p)(2) [defendant meets its burden on summary judgment by showing one or more elements of [plaintiffs] cause of action, even if not separately pleaded, cannot be established, or [by establishing] a complete defense to that cause of action].)

Once the employer sets forth a nondiscriminatory reason for the decision,

the burden shifts to the plaintiff to produce substantial responsive evidence that the employers showing was untrue or pretextual. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; Slatkin v. University of Redlands (2001) 88 Cal.App.4th 1147, 1156; see also Guz,supra, 24 Cal.4th at p. 357.) [A]n employer is entitled to summary judgment if, considering the employers innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employers actual motive was discriminatory. (Guz, at p. 361.)

We review the trial courts grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Guz, supra, 24 Cal.4th at p. 334; Code Civ. Proc.,  437c, subd. (c).)

2. The Trial Court Properly Granted Summary Judgment as to Tillotsons Cause of Action for Age Discrimination

Tillotson concedes BAI met its burden on summary judgment/summary adjudication by proffering a legitimate, nondiscriminatory reason for his termination ‑‑ BAI lost trust and confidence in him based on a series of client complaints and compliance problems. However, he contends triable issues of material fact exist concerning whether that proffered reason is merely a pretext for unlawful age discrimination under FEHA.

Pretext may be demonstrated by showing the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge. [Citation.] [Citation.] (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224; see also Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005 [pretext may be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the [asserted] non discriminatory reasons].) However, simply showing the employer is lying, without some evidence of discriminatory motive, is not enough to infer discriminatory animus. The pertinent [FEHA] statutes do not prohibit lying, they prohibit discrimination. (Guz, supra, 24 Cal.4th at p. 361; see also Slatkin v. University of Redlands, supra, 88 Cal.App.4th at p. 1156.)

[W]here the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 809; West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 980.)[6] Here, as Tillotson acknowledges, Brundage was the BAI decisionmaker who both hired and fired him. Nonetheless, Tillotson insists Elders statement to Holder, which he overheard, that Tillotson was too old to relate well to younger clients and her e-mail to Brundage seeking Tillotsons replacement at the Peninsula Center branch provide substantial evidence a discriminatory motive was involved in his discharge. Tillotson also notes Brundages deposition testimony in which he agreed the Peninsula Center Banking Office was Elders branch (it was her store) and BAI is there at her convenience as a business department.

Tillotsons opposition papers fall far short of satisfying his burden of presenting substantial responsive evidence that his employers showing was untrue or pretextual. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807 [To avoid summary judgment, [appellant] must do more than establish a prima facie case and deny the credibility of the [defendants] witnesses. [Citation.] [He] must produce specific, substantial evidence of pretext. [Citation.] [Citation.]].) Although Tillotson speculates Elders views must have influenced Brundages decision to terminate him, he presents no evidence to support this theory, which is squarely contradicted by the testimony of both Brundage and Elder.[7] Accordingly, even if the isolated comments cited establish Elders age-based animus toward Tillotson, that animus cannot be attributed to Brundage, the executive who determined he should be terminated. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [statements by individuals not integrally involved in decisions culminating in termination of the plaintiffs employment not attributable to employer]; see Emmel v. Coca-Cola Bottling Co. of Chicago (7th Cir. 1996) 95 F.3d 627, 632;[8]Price Waterhouse v. Hopkins (1989)490 U.S. 228, 277 [104 L.Ed.2d 268, 109 S.Ct. 1775] (conc. opn. of OConnor, J.).)

Tillotson also argues his testimony regarding the lack of merit to the various client complaints and procedural violations cited by BAI to support his termination constitutes sufficient evidence of pretext to create a triable issue of fact. But Tillotson concedes the numerous complaints and compliance issues raised serious concerns about his job performance and exposed BAI to increasing potential liability. Tillotson may not defeat summary judgment simply by establishing a factual dispute as to whether BAIs decision to terminate him based on those concerns was wrong, imprudent, or mistaken since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employers proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, [citation], and hence infer that the employer did not act for [the asserted] non-discriminatory reasons. [Citations.] (Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1005 [to defeat summary judgment after employer has presented substantial evidence of a legitimate nondiscriminatory reason for its decision, [i]t is not enough for the employee simply to raise triable issues of fact concerning whether the employers reasons for taking the adverse action were sound. What the employee has brought is not an action for general unfairness but for age discrimination]; see Guz, supra, 24 Cal.4th at p. 358 [if nondiscriminatory, [the employers] true reasons need not necessarily have been wise or correct. . . . [T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally]; see also Morgan v. Regents of University of California, supra, 88 Cal.App.4th at pp. 75-76 [employers consideration of qualitative or subjective factors in making employment decisions not sufficient ground to deny summary judgment in absence of evidence of pretext].)

Finally, Tillotson asserts the fact he was replaced by a younger employee ‑‑ or, as BAI insists, that some of his job duties were assumed by an existing BAI employee who was younger than he[9]‑‑ creates a triable issue of fact as to pretext. Although the replacement of an older worker by a younger one can establish a prima facie case of age-based discrimination (see Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 76), that fact alone does not constitute specific, substantial evidence of pretext since younger workers typically replace older ones. (See, e.g., Fagan v. New York State Elec. & Gas Corp. (2d Cir. 1999) 186 F.3d 127, 134 [plaintiff cannot defeat summary judgment merely by showing that he was replaced by these younger employees]; Futrell v. J. I. Case (7th Cir. 1994) 38 F.3d 342, 348 [Typically, younger workers will replace older ones; this is an unremarkable phenomenon that does not, in and of itself, prove discrimination]; see also Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 807.)

In sum, Tillotson failed to come forward with evidence supporting a rational inference that intentional discrimination, on grounds prohibited by [FEHA] was the true cause of [BAIs] actions. (Guz, supra, 24 Cal.4th at p. 361.) Summary judgment was properly granted as to both the age discrimination and wrongful termination causes of action.[10]

3. The Trial Court Properly Granted Summary Judgment as to Tillotsons Cause of Action for Defamation

The trial court correctly held Tillotsons defamation cause of action against Elder and the Bank, based upon Elders work-related comments to a member of her senior staff concerning Tillotsons business conduct,[11]fails as a matter of law. As to Elder the trial court concluded no co-worker liability exists for personnel-related statements. The courts conclusion was premised on the applicability of an absolute coworkers or managers privilege, recognized in a two-to-one decision by the Court of Appeal in Sheppard v. Freeman (1998) 67 Cal.App.4th 339: [E]xcept where a statutory exception applies, an employee or former employee cannot sue other employees based on their conduct relating to personnel actions. (Id. at p. 342.) The interest in allowing all employees the freedom to act and speak in relation to personnel actions without the threat of debilitating litigation outweighs the risk that a few employees will act maliciously and go undetected by their employers. Accordingly, we hold that an employee or former employee cannot sue individual employees based on their conduct, including acts or words, relating to personnel actions. (Id. at p. 347 [overruling demurrer as to libel claim but sustaining demurrer of coworkers as to other, common law tort causes of action; coworkers actions, even if actionable defamation, still part of ordinary personnel decisions and subject to absolute privilege]; see also Webber v. Inland Empire Investments, Inc. (1999) 74 Cal.App.4th 884, 908 [coworkers privilege applies in cases where challenged actions, even if motivated by malice, are nonetheless accomplished in part for the benefit of employer].)

In the trial court, but not on appeal, Tillotson asserted Elder is not entitled to the benefit of an employee or coworker privilege because she was not Tillotsons supervisor and, in fact, worked for a different company. In essence, Tillotson argued defendants could not have it both ways ‑‑ contending Elder played no role in the decision to terminate Tillotson but claiming the benefit of an absolute privilege available to individuals who participate in personnel decisions. Although Tillotsons position regarding the scope of the coworkers privilege and its applicability to Elders lunch room statements to her colleague may have merit, because he did not make the argument in his briefs on appeal, we decline to consider it. (Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215, 226 [absent sufficient showing of justification for failure to raise issue in a timely fashion, appellate court need not consider any issue not adequately presented in the parties briefs]; Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 368 [appellants failure to raise issue in opening brief ordinarily waives issue on appeal].)

In any event, the trial court held as to both Elder and the Bank that Tillotsons defamation claim failed because the alleged defamatory statements were privileged, referring to the common interest privilege in Civil Code section 47, subdivision (c).[12] Courts have consistently interpreted Civil Code section 47, subdivision (c), which extends a conditional privilege against defamatory statements made without malice on subjects of mutual interest, to apply in the employment context. (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369.) Although Elder was not Tillotsons supervisor and was employed by the Bank, not BAI, there is no dispute Tillotson interacted on a daily basis with Elder and the other branch employees under her supervision at the Peninsula Center office, where Tillotson performed most of his financial and investment advisory duties. In light of the employment-based relationships between branch employees Elder and Holder, on the one hand, and Tillotson, on the other hand, and Tillotsons concession Elders statements were work-related, the trial court properly determined as a matter of law the common interest privilege applied to Elders allegedly defamatory statements and precluded Tillotsons defamation action. (See, e.g., Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 108 [existence of privilege in defamation cases ordinarily question of law for court].)

On appeal Tillotson contends summary judgment was improper because he presented evidence raising triable issues of fact regarding whether Elder acted with malice when she made the allegedly defamatory statements to Holder, specifically Elders statement to Holder and her e-mail to Brundage indicating her desire to have him replaced at the Peninsula Center office and her purported knowledge with respect to the October 2003 incident that he had not initiated any contact intended to obtain another BAI financial advisors clients. (See Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413 [The malice necessary to defeat a qualified privilege is actual malice which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiffs rights (citations). [Citations.]]; Noel v. River Hills Wilsons, Inc, supra, 113 Cal.App.4th at p. 1370.)

Tillotsons focus on Elders purported malice comes too late: Although it was his burden to do so, Tillotson never raised the issue of malice in the trial court in opposition to the summary judgment motion. (See Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1208 [plaintiff has burden of establishing malice as essential element of cause of action for defamation once defendant establishes qualified privilege applies].) By failing to raise the issue before the trial court ‑‑ either in his separate statement in opposition to summary judgment or his memorandum of points and authorities ‑‑ Tillotson has forfeited the argument. (See, e.g., North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-31 [separate statement in opposition to summary judgment focused entirely on delayed discovery of defective drainage; failure to identify problem of defective footing precludes consideration of that theory on appeal even though supporting evidence referred to footing problem]; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 988-989 [party may not change theory of a cause of action on appeal and raise issue not presented in opposition to summary judgment]; see generally Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1209-1210, 1213-1214 [party opposing summary judgment must identify the nature of the dispute and describe the evidence that supports the position that the fact is controverted].)[13]

DISPOSITION

The judgment is affirmed. BAI, the Bank and Elder are to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

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Analysis and review provided by Chula Vista Property line attorney.

[1] Elder denies making any age-based comments about Tillotson to Holder. Although I certainly admit that I found Tillotson difficult to deal with, his age had nothing to do with that difficulty or the issue that I was discussing with Holder. The allegations are particularly ridiculous since I am about the same age as Tillotson and Holder is over 70 years old herself.

[2] Statutory references are to the Government Code unless otherwise indicated.

[3] The trial court sustained objections to five discrete portions of the evidence Tillotson had offered in opposition to the motion for summary judgment on the discrimination claim and overruled all other objections lodged by BAI and the other defendants.

[4] Tillotson also contends the trial court erred in sustaining several of the objections of BAI and the other defendants to portions of the evidence he offered in opposition to the summary judgment motion.

[5] Evidence an employee was replaced by an older person, rather than a younger person, weighs against the inference the employee was terminated based upon his or her age, but does not conclusively establish the absence of age discrimination. (See Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 76; see also Hersant v. Department of Social Services, supra, 57 Cal.App.4th at p. 1003, fn. 3 [It is not entirely clear that this last element [replacement by a significantly younger person] is a required part of the employees prima facie case].) Nonetheless, to establish a prima facie case of discrimination based on age, the plaintiff must provide evidence of some circumstance suggesting discriminatory motive. (See, e.g., Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

[6] The Court of Appeal in Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th 798, held five years between the date of hiring and the date of termination is a relatively short time and is not so long a time as to attenuate the presumption. (Id. at p. 809, fn. 7.)

[7] Indeed, in his own separate statement Tillotson agreed BAIs separate statement fact nos. 51 and 55 were undisputed. Fact no. 51 stated, Elder was not Tillotsons supervisor (she is not even a BAI employee) and she did not play a role in BAIs decision to terminate Tillotson. Fact no. 55 stated, Elder was not Tillotsons supervisor and she did not play a role in BAIs decision to terminate Tillotson.

[8] See Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1051 (although federal cases interpreting Title VII are not determinative as to FEHA, they are nonetheless persuasive when the two statutory schemes contain the same or similar language).

[9] The trial court sustained BAIs objection to the statement in Tillotsons declaration testimony he was replaced by someone younger for lack of personal knowledge and because it conflicted with his deposition testimony, which acknowledged that the person who took over some, but not all, of his duties, was already a BAI employee. On appeal Tillotson challenges this ruling, as well as the trial courts other evidentiary rulings sustaining objections to his declaration. Although we have substantial doubt whether the trial court abused its discretion in ruling as it did (see Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169 [evidentiary rulings on summary judgment reviewed for abuse of discretion]), we have considered all of Tillotsons evidence, including that stricken by the trial court, in evaluating whether he presented sufficient evidence of pretext to defeat summary judgment.

[10] Neither the trial court nor the parties ‑‑ either in their summary judgment papers or on appeal ‑‑ address Tillotsons second cause of action for wrongful termination in violation of public policy separately from his first cause of action for age discrimination in violation of FEHA. As do the parties, for purposes of this appeal we assume the cause of action for violation of public policy stands or falls with the FEHA claim. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889 [[i]n the context of a tort claim for wrongful discharge, tethering public policy to specific constitutional or statutory provisions serves not only to avoid judicial interference with the legislative domain, but also to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge].)

[11] Tillotsons defamation claim concerns Elders alleged statements to Holder, a senior member of her staff, that Tillotsons efforts to obtain business from bank customers with a preexisting relationship with other BAI advisors were unethical and constituted stealing clients. As discussed, Tillotson does not dispute that [e]very statement by Elder that Tillotson has identified in support of his defamation claim was work-related and transmitted to her colleague.

[12] Civil Code section 47, subdivision (c), defines a privileged publication or broadcast as a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.

[13] In light of our holding with respect to the privilege issue, we need not consider whether summary judgment was also proper because Elders comments were statements of opinion, rather than fact. (See generally Okun v. Superior Court (1981) 29 Cal.3d 442, 451-452 [statement of opinion may be actionable if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.].)