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Shelton v. City of Manhattan Beach9/28/2004
a facie showing is one that is sufficient to support the position of the party in question. [Citation.] . . ." (Fns. omitted; see Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) We review the trial court's decision to enter summary judgment de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) The trial court's stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196; Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 245.)
2. The first cause of action-sexual orientation discrimination
Plaintiff's first cause of action is for sexual orientation discrimination. To recover for sexual orientation or other unlawful discrimination in violation of the Fair Employment and Housing Act, the California Supreme Court has held: "Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was . . . performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. [Citations.]" (Guz v. Bechtel National, Inc. (2003) 24 Cal.4th 317, 355, fn. omitted; Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 677.) The burdens of proof at trial with respect to plaintiff's sexual orientation discrimination claim are governed by the test formulated by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-803. (Guz v. Bechtel National Inc., supra, 24 Cal.4th at p. 354.) In the case of a summary judgment or adjudication motion in the employment context, the burden of production rests with the moving employer to present evidence that shows the plaintiff cannot prevail. (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150-151; University of Southern California v. Superior Court (1990) 222 Cal.App.3d 1028, 1036.) An employer may obtain a summary judgment either by attacking the employee's prima facie case or by establishing an absence of pretext with respect to its actions. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) As we explained in Caldwell, "If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing." (Caldwell v. Paramount Unified School Dis
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