Improper Separate Statement Results in Summary Judgment

  Ray Batarse, a one time attorney who resigned from the California State Bar in 2006 with disciplinary charges pending, did not fair well representing himself with respect to his employment discrimination claim. In Batarse v. Service Employees International Union Local 1000, he alleged causes of action for racial and gender discrimination, retaliation, negligent supervision and retention, and wrongful termination in violation of public policy against his previous employer.

 The trial court ruled against Batarse on the employer’s motion for summary judgment. The court found that Batarse’s opposition to the motion failed to include a separate statement of disputed and undisputed facts that conformed to the requirements of Code of Civil Procedure section 437c, subdivision (b)(3), and rule 3.1350 of the California Rules of Court. The court then exercised its discretion under section 437c, subdivision (b)(3) to grant the motion on that basis – i.e., for Batarse’s failure to file a proper separate statement.

  The appellate court affirmed finding that the trial court did not abuse its discretion in failing to grant a continuance to enable Batarse to file a proper separate statement. The case illustrates the following:

  • The importance of following court rules, particularly special rules such as those applicable to motions for summary judgment.
  • The near futility of obtaining reversal on appeal when the standard is abuse of discretion.
  • The requirement that prejudice must be shown when the standard is abuse of discretion.
  • No one, not even an attorney, should represent oneself.
  • The rule that if an employer has a legitimate reason for employment action that action will be upheld unless an employee offers substantial evidence that the employer’s stated reason was untrue or pretextual or that the employer acted with a discriminatory animus.

  It is hard to imagine anyone other than Batarse believing he had a cause of action against his employer under the facts of this case. Batarse was terminated because he made false statements during the hiring process and had omitted material information, i.e., that he had been disciplined prior to his resignation from the California State Bar and that his wrongdoing involved failing to respond to client inquiries and failing to perform legal services competently.

  Independent counsel surely would have advised Batarse not to pursue this matter. The fact that Batarse represented himself is the only reason this case was filed — no competent attorney would have filed it or appealed the trial courts grant of summary judgment.