Arguments left out of a summary judgment opposition are forfeited on appeal: Belletto v. Board of Trustees of the CSU
Forfeiture on appeal after summary judgment decided much of Belletto v. Board of Trustees of the California State University. The Second District, Division Two, affirmed summary judgment against a former lecturer on his employment claims, and several of his appellate arguments never reached the merits: they had not been made in his opposition below, were first made in his reply brief, or were never separately developed.
What happened in Belletto v. Board of Trustees of the California State University
Vincent Belletto was a temporary part-time lecturer at California State University Long Beach. In the fall 2022 semester he reported that students in one of his classes were disrupting his lectures and treating him in ways he found threatening. At a September 26, 2022 meeting he disclosed a disability to the associate dean. The university then approved moving that class, its labs and his office hours online for the rest of the semester.
By early October 2022, according to the opinion, he began cancelling classes and not teaching the online lectures in real time. Students complained, and on October 26, 2022 the university relieved him of the class, while continuing to pay him for it through the semester. In January 2023 he was told there were no spring courses to offer him, because of an enrollment downturn and changes in the general education pattern, with the remaining courses going to faculty with more seniority.
He sued in July 2023, alleging disability discrimination, failure to accommodate, failure to engage in the interactive process, harassment, retaliation and failure to prevent under the Fair Employment and Housing Act (FEHA), along with claims under the California Family Rights Act (CFRA) and the Labor Code. The Los Angeles County Superior Court (Judge Bradley S. Phillips) granted summary judgment, and he appealed.
What the Court of Appeal held
Reviewing de novo, the court found no triable issue on the accommodation and interactive-process claims. The university had met with him, investigated his complaints and approved remote teaching. The one accommodation he said it refused, removing the disruptive students from his class, was not reasonable. The court relied on his own deposition testimony that “being able to manage student disruption in class is an essential duty of a college lecturer,” and on the rule that eliminating an essential function is not a reasonable accommodation. On harassment, the court held that no reasonable trier of fact could find the associate dean’s alleged remarks were based on the disability, and that even if they were objectively offensive, they were not severe or pervasive.
Which arguments were forfeited on appeal?
Much of the rest of the appeal was decided on forfeiture rather than on the merits.
- New theories on appeal. In the trial court, his CFRA argument rested on disability discrimination and failure to accommodate, and his retaliation argument rested on his written grievances and incident reports about student encounters. On appeal he argued for the first time that the university interfered with his CFRA leave and retaliated against him for requesting accommodation and taking medical leave. The court’s answer was one sentence: “Belletto’s new arguments are forfeited.”
- A narrower record of incidents. He argued the trial court should have weighed the totality of the circumstances, including an October 11 email, in assessing harassment. But, the court wrote, “Belletto’s opposition below, however, only asked the court to consider the September 26 and October 24 comments. Thus, there was no reason for the court to consider any other incidents, and Belletto’s argument that the court should have done so is forfeited.”
- An argument first made in reply. A point about the university arranging independent study for one student appeared only in his reply brief. Because it was not made in the opposition below or in the opening brief, the court held it was “doubly forfeited.”
- An undeveloped claim. His briefs did not separately argue the discrimination cause of action or engage with the McDonnell Douglas test. The court treated the claim as either derivative of the failed accommodation claims or forfeited, quoting the rule that “Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”
He also argued that the trial judge’s questions at the hearing showed the court applied the wrong legal standard. The Court of Appeal rejected that argument as well: the questions did not concern the accommodation claims, and the written ruling applied the correct standard. A trial judge’s oral remarks, the court noted, cannot be used to impeach the written findings or judgment.
What this means for summary judgment appeals
On appeal from summary judgment, the opposition papers largely define what can be argued. A theory, statute or incident that was not put before the trial court in the opposition may never be decided on appeal. The same is true of an argument held back for the reply brief, or a claim mentioned in the opening brief but never actually argued. For how summary judgment rulings reach the Court of Appeal in the first place, see our note on appealing summary judgment orders.
The opinion is unpublished. It cannot be cited or relied on in California courts (Cal. Rules of Court, rule 8.1115(a)), but it applies forfeiture rules that appear throughout published case law.
Key takeaways
- The Court of Appeal held that theories not raised in the opposition to summary judgment were forfeited on appeal.
- An argument first made in the reply brief, and not in the opposition below or the opening brief, was held doubly forfeited.
- A claim that is not separately argued with analysis and authority in the appellate briefs can be treated as forfeited.
- A trial judge’s oral remarks at a hearing do not override a written ruling that applies the correct legal standard.
- Removing disruptive students was not a reasonable accommodation because the lecturer admitted managing classroom disruption was an essential duty.
Why appeals like this one need an appellate lawyer
The appeal in Belletto was shaped before the notice of appeal was filed. The theories the court would consider were fixed when the summary judgment opposition was filed. A CFRA interference theory and a new retaliation theory that were not in those papers could not be added on appeal. An argument saved for the reply brief came too late twice over. A discrimination claim that the briefs did not separately argue either fell with the failed accommodation claims or was forfeited.
None of this is unusual. Forfeiture rulings like these are common, and the risk is easy to overlook when attention is on the motion itself. Appellate work treats the opposition as the future appellate record: whether each theory, statute and incident was put before the trial court, whether each was developed with argument and authority, and whether the written ruling addresses it. On appeal, the opening brief is built around what was actually preserved.
If you are opposing a dispositive motion, or have just lost one, talk to an appellate lawyer early, while the record can still be shaped and before a deadline runs. Learn more about our appellate practice and motion practice.
What this post is not. This post is attorney advertising and general information about a court decision. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and record, and appellate deadlines are short and often jurisdictional — talk to appellate counsel about your case promptly.
Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864