When an employer moved for summary judgment in a California employment discrimination case, it won the whole case in 32 of 95 motions. Claim by claim, 221 of 404 FEHA claims survived. And the employer's own papers failing to carry its first burden saved nearly as many claims (59) as a triable issue on pretext did (67).
The number
| What happened to the motion | Motions |
|---|---|
| Whole case thrown out (summary judgment granted) | 32 of 95 |
| Some claims thrown out, others survived | 34 of 95 |
| Every claim survived (motion denied) | 29 of 95 |
| What happened to each FEHA claim | Claims |
|---|---|
| Survived | 221 of 404 |
| Thrown out | 183 of 404 |
These are employer motions decided in California superior court tentative rulings, as of October 24, 2026. A FEHA claim here means a claim under the Fair Employment and Housing Act or a closely related claim, such as wrongful termination or whistleblower retaliation.
What decides it: two steps, two ways to lose
Summary judgment in these cases runs in two steps. First, the employer must show that the employee cannot prove an element of the claim, or that the employer has a complete defense (Code Civ. Proc. § 437c(p)(2)). Only then does the burden shift to the employee. Second, for discrimination and retaliation, once the employer gives a legitimate reason for its decision, the employee must show that the reason is a pretext (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317).
| Why the claim survived | Claims |
|---|---|
| A triable issue on pretext | 67 of 221 |
| The employer did not carry its initial burden | 59 of 221 |
| A triable issue on harassment | 27 of 221 |
| It survived because a related claim survived | 22 of 221 |
| Other reasons | 46 of 221 |
| Why the claim was thrown out | Claims |
|---|---|
| Legitimate reason given, no evidence of pretext | 50 of 183 |
| It fell with a failed claim it depended on | 29 of 183 |
| No adverse employment action | 22 of 183 |
| No causal link | 20 of 183 |
| No prima facie case | 19 of 183 |
| Other reasons | 43 of 183 |
What the average hides: the employer's first step
Most of the fight is about pretext. But in 59 of the 221 survivals, the court never got that far. The employer's motion did not address an allegation, or offered argument instead of evidence on an element. In one ruling, "the court finds that Moving Defendants failed to carry their initial burden demonstrating that no triable issue of fact exists." (Los Angeles, 21STCV08495, 2026-07-20.)
When the court did reach pretext, it cut both ways. In one case, "there are triable issues over MTO’s proffered justification for terminating Plaintiff." (Los Angeles, 24STCV12988, 2026-05-08.) In another: "Plaintiff failed to meet her burden to provide 'specific, substantial evidence of pretext' from which a reasonable trier of fact could conclude that the explanation offered by Defendant for Plaintiff’s termination was not credible." (Orange, 24-1438792, 2026-07-13.)
The claim type mattered too. Retaliation claims survived in 39 of 66 and harassment claims in 32 of 49, against 41 of 86 for discrimination claims.
What to do
| If you represent the employer | If you represent the employee |
|---|---|
| Carry the first step with evidence, element by element, for every claim and every allegation. An unaddressed allegation can keep a claim alive. | Read the motion for gaps before you build your pretext case. If the employer skipped an allegation or argued instead of proving, say so first. |
| Back the legitimate reason with evidence. A reason offered only as argument never shifts the burden. | If the burden does shift, bring specific, substantial evidence of pretext. General disagreement with the decision is not enough. |
Method: 95 employer motions for summary judgment or summary adjudication in California employment cases, decided in superior court tentative rulings, and the 404 FEHA-family claim decisions in them, as of October 24, 2026. Each claim was coded for outcome and for the court's main stated reason, with the reason quote checked against the ruling. Non-FEHA claims, such as defamation or wage claims, are left out of the claim counts. These are tentative rulings, not precedent, and these counts are not odds of winning. Nothing here is legal advice.