Sherman Demps, Jr. v. San Francisco Housing Authority, et al.

Paraphrasing Alexander Pope, a court "should never be ashamed to own [it] has
been in the wrong; which is but saying, in other words, that [it] is wiser today than [it]
was yesterday." (Swift, Thoughts on Various Subjects in Miscellanies in Prose and Verse
(1727) Vol. I, p. 340.)

We write today to "own" that the procedure we approved in Biljac Associates v.
First Interstate Bank (1990) 218 Cal.App.3d 1410 (Biljac) was wrong. There, in
affirming a summary judgment, we held that a trial judge need not rule on each
evidentiary objection, but could preserve the record by simply stating that " ‘I am going
to disregard all those portions of the evidence that I consider to be incompetent and
inadmissible.' " (Id. at p. 1419, fn. 3.) Today, seemingly wiser, we reject that holding,
and hold instead, as dictated by two California Supreme Courts cases and consistent with
all published, post-Biljac Court of Appeal opinions, that a trial judge's failure to rule on properly presented objections results in their being impliedly overruled, the effect of
which is that the objected-to evidence is in the record for purposes of appellate review.

The trial judge here expressly stated that he was relying on Biljac, and went on to
grant summary judgment for defendants San Francisco Housing Authority (Housing
Authority) and Michael Roetzer, its administrator. We must thus determine, on our
independent review, whether that summary judgment was correct in light of the all the
evidence in the record. We conclude that it was, and we affirm.

I. BACKGROUND

A. Demps and His Employment

Plaintiff Sherman Demps, Jr. is an African-American man, born in 1948; he was
57 years old when the events leading to this lawsuit took place. Demps has an Associate
of Arts Degree from San Francisco City College, following which he attended two
universities; he is 12 units short of a degree in hotel and restaurant management.

Following honorable service in the military, Demps had a broad employment
background, working for United Airlines, various restaurant chains, and security firms.
In 1994 Demps began employment with the Housing Authority as a security officer. In
April 1996 he became a resident custodian at 1880 Pine Street (1880 Pine), a housing
complex owned and operated by the Housing Authority, whose occupants are senior
citizens and disabled people. Demps remained in that position until the fall of 2002,
when he was terminated.

The Housing Authority entered into a memorandum of understanding with Service
Employees International Union, Local 1877, of which Demps was a member in good
standing. Apparently this memorandum governed the relationship between the Housing
Authority and the union members, including custodians, but no issues are presented in
connection with it.

The full range of Demps's duties at 1880 Pine were described in a job description
introduced by him, included among which was that he "move and set up furniture and
equipment." As distilled in the declaration of Ignatius Leonor, the Housing Authority
District Director for District 3, Demps was responsible for performing a full range of custodial tasks, including picking up papers, garbage, and other rubbish, washing and
cleaning stairways and hallways, inspecting the building and grounds for vandalism and
unsafe or unhealthy conditions, and reporting evidence of problems with Housing
Authority property or equipment.

As a condition of his employment as resident custodian, Demps was required to
occupy a unit at 1880 Pine, though he was not under any lease. Under the memorandum
of understanding, he was required to be available to the Housing Authority five days a
week, twenty-four hours per day. He was also required to use Housing Authority
property only for authorized activities in connection with his official duties. And Demps
admitted - it was undisputed, he responded - that as "a resident custodian [he] occupied a
position of trust because he had direct contact with disabled and elderly residents and had
access to their occupied residences."

Demps's declaration in opposition to the motion for summary judgment stated that
he was "never informed by [his] supervisor, Ignatius Leonor, or anyone else at any time
that [he] was not performing [his] job in a competent manner." No directly contrary
evidence was introduced by the Housing Authority, nor did it take issue with Demps's
statement that he never received a work performance evaluation. In short, Demps's
employment history at the Housing Authority until 2002 was generally uneventful - with
the lone, but significant, exception of his relationship with Linda Bray, who was
apparently Demps's antagonist from the beginning and would become the protagonist in
the events which would ultimately lead to his termination.

Bray was a Caucasian woman in her 50s, and had been a tenant at 1880 Pine
before Demps began his employment there. And to put it mildly, she and Demps did not
get along. Demps's declaration describes their relationship as follows: "11. Almost from
the very beginning of my employment as Resident Custodian at the 1880 Pine Street
address, I began experiencing extraordinary nonstop harassment and extreme abuse by
Linda Bray, a white female tenant there. That egregious harassment continued
throughout the full term of my employment with the full knowledge of and aided, abetted
and encouraged by defendants Michael Roetzer and the San Francisco Housing Authority
[when referred to collectively, defendants]. [] 12. Linda Bray's abhorrent abuse over the
several years of my employment, included but was not limited to false and malicious
complaints to my supervisors relating to my work performance and conduct, constant
harassment of persons visiting my unit, abusive verbal and physical attacks upon my
roommate, continuously confronting me in a hostile, provocative manner, constantly
addressing and referring to me as a ‘pimp,' ‘drug dealer' and ‘pimping drug dealer,'
continuously filing false police reports against me, necessitating my filing a civil action
for defamation against her. [] Linda Bray also constantly without cause confronted
tenants in the building in a hostile threatening manner with a variety of baseless
accusations." Demps's declaration attached copies of documents reflecting what he
called "the endless stream of harassment conduct by Linda Bray," and went on to state
that he had "copies of 100 or more documents including false police reports, and
vexatious civil actions reflecting the abuses of Linda Bray against me and others."

There was no declaration from Bray. However, defendants' reply to Demps's
statement of material facts, citing various portions of Demps's deposition and his
response to defendants' own separate statement, responded as follows: "With respect to
Linda Bray, at no time did Demps make a complaint about an unlawful employment
practice under the FEHA. Nor did he ever complain about Linda Bray to Michael
Roetzer. [Citation.] Demps conceded that Linda Bray's comments were racially neutral.
[Citation.] . . . He has provided no evidence that Linda Bray harassed people based on
their age, race, sex, or any other protected classification. Most notably, Demps believes
that Linda Bray's conduct was motivated not by his status as a member of any protected
class, but was the result of a personal animus based on Demps's support of another tenant
in a court matter involving Ms. Bray. [Citation.] Finally, Demps explicitly stated that he
was never sexually harassed by Ms. Bray. [Citation.]"

Beyond the rather conclusory recitations quoted above, the actual facts involving
Bray can be gleaned only from certain of the documentary evidence introduced by
Demps himself. These exhibits included numerous police incident reports (most of
which were complaints by Bray and one a complaint against Bray) and an order from the San Francisco Superior Court on a petition for injunction prohibiting harassment brought
by Bray, but which resulted in an injunction against her.

Demps's documentary evidence also included four letters he wrote, on April 13,
1999, an unspecified date in January 2000, August 7, 2000, and May 31, 2001. The first
of these letters, to Housing Authority Property Manager Henry Khan, responded to the
charge by Bray that Demps called her a "bitch." And the third letter confirmed that
Demps had been advised by Khan that "there was nothing he could do" about Bray.
Interestingly, and as particularly pertinent to the issue here, in that third letter Demps
referred to "someone complain [sic] about me that I was bringing in homeless people to
work for me." This, as noted, was in August 2000.

However bad the relationship between Demps and Bray had been, it sunk to its
nadir in July 2002 when Bray accused Demps of attempting to kill her. The details of the
alleged crime are nowhere in the record, nor are the details of the actual proceedings
filed. What is in the record is Demps's declaration testimony that at some point "the
District Attorney's office subsequently terminated that unfounded criminal case against
[him] and dismissed the case."

The criminal charge of attempted murder caused the Housing Authority to
investigate, in the course of which it learned information that would lead to the
termination of Demps's employment. What precisely occurred in connection with this
investigation is, like so much of the story here, not in the record. Whatever it was,
something occurred which generated a 10-page handwritten letter from Demps dated
September 23, 2002. The letter was addressed to District Director Leonor, and its
subjects were "Ms. Linda Bray, #606 [and] Johnny Celestine." What that letter revealed
was described by Leonor in his declaration in support of defendants' motion: "Demps
admitted he paid neighborhood panhandler and known drug-user Johnny Celestine to
move furniture out of the hallways at the senior and disabled housing complex located at
1880 Pine Street once a month or every two or three months." Further, Leonor's
declaration stated that Demps "also acknowledged that [Leonor] had previously warned him that hiring others to perform his work in the building would result in his
termination."

What occurred next is again not in the record, but as best we can determine from
Demps's evidence, Leonor prepared a memorandum dated October 4, 2002, which,
according to Demps, proposed "the termination of [his] employment." The memorandum
was not introduced below, and what we know of it is yet again from Demps. According
to him, the memorandum proposed the termination of his employment because he was
"guilty of ‘acts of gross misconduct; unauthorized use of Housing Authority property;
dishonesty, unsatisfactory job performance; conduct that reflect [sic] negatively on the
Housing Authority; and non-compliance with Authority Safety Standards.' "

Elaborating on those charges, and at the same time taking issue with them,
Demps's declaration went on: "said blatantly false and fabricated accusations were
charged as: a. Failure to Perform Assigned Work and Unauthorized Use of Housing
Authority Property. In pertinent part, said charge falsely states that I hired Johnny
Celestine, a panhandler to perform my job duties at 1880 Pine Street, three nights per
week for the past two years, and that I gave him $15.00 to $30.00 each night to sweep
and mop floors, set up tables for meetings, and clean stairwells. Such charges are
completely false and unsupported as already referred to in paragraphs 17, 18 and 19
above. [] b. Gross Negligence and Non-Compliance With Authority Safety Standards.
This charge knowingly and falsely presents the misleading and [sic] statement that I
allowed a known drug user, Johnny Celestine, access to said premises when in fact my
supervisor was always cognizant of the presence of Celestine in the neighborhood even
before I became employed at 1880 Pine. Celestine was known to most of the tenants who
trusted him and who often had him do odd jobs for them, including Linda Bray.
Celestine never harmed anyone while providing needed services to tenants at their
request. [] Thusly, the charge here of Gross Negligence and Non-Compliance with
Authority Safety Standards is fabricated and ludicrous. [] c. Conduct that Reflects
Negatively on the Housing Authority. The sole basis for this equally false and ludicrous
charge is that at some time and place I addressed Linda Bray as a "bitch" to her face and also referred to her as same when speaking to Celestine. [] Such charge is absolutely
false and unsupported. I have at no time addressed or referred to Linda Bray or any other
tenant as a "bitch." [] d. Making False Statements During An Official Investigation.
The charge that I made false statements during an investigation is absolutely false and as
ludicrous as the above fabricated charges against me. At no time have I ever made a false
statement to the Housing Authority or anyone else concerning my employment by the
Housing Authority. Defendant presents no credible evidence to support their scurrilous
charges which have been simply designed to justify the termination of my employment."

According to a November 18, 2002 letter from Administrator Roetzer, a Skelly
meeting1 was scheduled for November 15, 2002. Demps apparently chose not to attend,
but had Cesar Alvarado, his union representative, appear on his behalf. Roetzer's letter
also memorialized what occurred: "At the meeting, Mr. Alvarado did not provide any
additional information. He did not dispute that you had hired Johnny Celestine to
perform work at the 1880 Pine Street building, your assigned work site, or that you
referred to a resident in derogatory terms. In addition, I reviewed the evidence
supporting your termination. Based on my review of the relevant materials and your
failure to provide any additional information, I am upholding the October 17, 2002,
decision to terminate your employment with the Housing Authority. Your were sent your
final paychecks with the October 17 letter."

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As quoted above, in responding to counsel's express request for a "ruling on the
objections," the trial court stated it was "following Biljac and is only considering the
relevant and pertinent evidence." Biljac was, as noted, our 1990 opinion which involved
an appeal from a grant of summary judgment for banks and bank trade associations on a
complaint alleging violations of the Cartwright Act and the unfair competition laws. We
affirmed. Doing so, we first addressed an issue involving the evidentiary objections filed
by the plaintiffs and the manner in which the trial court dealt with them. As we described
it, "Plaintiffs filed voluminous evidentiary objections and a request that the court give
written rulings on all objections. [The trial judge] declined, however, explaining that
while he found merit to some of the objections on both sides and would be disregarding
all inadmissible or incompetent evidence in ruling, he saw little purpose in rendering
formal rulings.[4] Plaintiffs contend that this was reversible error. We disagree.

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