Primary Rights and Reply Separate Statements

Soria v. Univision Radio, L.A., Inc, No B263224 (D2d7 Nov. 15, 2016)

The court here reverses a summary judgment in an employment case. The opinion mostly deals with employment law stuff. But there’s two worthwhile procedural points in the footnotes.

First, the moving defendant in this case filed a “reply separate statement,” attaching a depo transcript. The trial court struck the filing and sustained an objection to the testimony. (There is, in fact, no such thing as a reply separate statement.) But for some inexplicable reason, the trial court nonetheless relied on the transcript in granting SJ. In the absence of a cross appeal on the evidentiary ruling, however, the Court of Appeal declines an invitation to consider the testimony on appeal.

Second, Plaintiff is suing on two theories of disability discrimination. Either she’s being discriminated against because she’s disabled, or because she’s not but her employer thinks she is. There’s a footnote that says that because plaintiff’s claims represent two factual theories of the invasion of a single primary right, if either theory presents a viable claim, summary judgment shouldn’t have issued. No quibble with the rule. But its not really clear why the right not be discriminated against because you are disabled necessarily implicates the same right against discrimination because you are perceived as disabled. A case could be made either way. But the court just says that it’s the same right. Probably because that’s easier than actually trying to explain the incomprehensible morass that is primary rights doctrine. So I suppose it is. Today anyway.

Reversed.