Mahler v. Judicial Council of Cal.

Filed 7/28/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

GLENN MAHLER et al.,
Plaintiffs and Appellants,
A158696
v.
JUDICIAL COUNCIL OF (San Francisco City &
CALIFORNIA et al., County Super. Ct. No.
CGC19575842)
Defendants and Respondents.

INTRODUCTION
Plaintiffs, retired superior court judges who have participated in the
Temporary Assigned Judges Program (TAJP), challenge recent changes to
the program made by the Chief Justice. These changes include limits on the
duration of service in the program but provide for some exceptions. Plaintiffs
claim these changes discriminate against “older” retired judges and have filed
the instant lawsuit, alleging disparate impact age discrimination under the
Fair Employment and Housing Act (FEHA). The trial court sustained
defendants’ demurrer without leave to amend on the ground legislative
immunity bars the suit.
Legislative immunity does, indeed, shield the Chief Justice and the
Judicial Council from suit, regardless of the nature of the relief sought, to the
extent plaintiffs’ discrimination claim is based on the Chief Justice’s
promulgation of changes to the TAJP. Legislative immunity does not,
however, foreclose suit to the extent plaintiffs’ claim is based on defendants’
1
enforcement of the challenged provisions of the TAJP through individual
judicial assignments. Rather, judicial immunity applies to the Chief Justice’s
assignment of individual judges in accordance with the new TAJP provisions,
and while judicial immunity forecloses monetary relief, it does not foreclose
prospective declaratory relief.
Defendants also demurred on the ground plaintiffs’ allegations fail to
state a viable disparate impact age discrimination claim. Although the trial
court did not consider the sufficiency of the complaint, defendants press this
as an alternative ground to affirm, and we therefore address the issue, given
our conclusion that legislative immunity does not wholly bar plaintiffs’ suit.
We agree that plaintiffs’ allegations are, at present, insufficient.
We do not agree, however, that plaintiffs must be denied leave to
amend. In so concluding, we disagree with defendants that a disparate
impact age discrimination claim cannot, as matter of law, be based on
disparate impact on an older subgroup within the class of persons protected
under the FEHA, namely employees forty years of age and older. No
California court has squarely addressed this issue, and while several federal
circuit courts have held “sub-class” disparate impact age discrimination
claims are not viable under the Age Discrimination in Employment Act
(ADEA), the majority view is now to the contrary. We find the reasoning of
these recent cases more persuasive than that of the older cases and conclude
it is in keeping with our Legislature’s stated intent that the FEHA age
discrimination provisions be liberally construed to achieve its salutary
purposes.
We therefore reverse the dismissal order and remand to allow plaintiffs
an opportunity to amend. In doing so, we are expressing no opinion as to

2
whether further amendment will sufficiently state a disparate impact age
discrimination claim or as to the merits of plaintiffs’ claim.
BACKGROUND
The Temporary Assigned Judges Program
The TAJP has its roots in the original Judges’ Retirement Act, Stats.
1937, page 2204. (Pickens v. Johnson (1954) 42 Cal.2d 399, 402 (Pickens).)
By 1951, section 6 of the Judges’ Retirement Act, provided that: “ ‘Justices
and judges retired under the provisions of this act, so long as they are
entitled by its provisions to receive a retirement allowance, shall be judicial
officers of the State, but shall not exercise any of the powers of a justice or
judge except while under assignment to a court as hereinafter provided. Any
such retired justice or judge may, with his own consent, be assigned by the
Chairman of the Judicial Council to sit in a court of like jurisdiction as, or
higher jurisdiction than, that court from which he was retired; and while so
assigned shall have all the powers of a justice or judge thereof. If assigned to
sit in a court, he shall be paid while sitting therein in addition to his
retirement allowances the difference, if any, between his retirement
allowance and the compensation of a judge of the court to which he is
assigned.’ ”1 (Pickens, at p. 402, quoting Judges’ Retirement Act, Stats. 1951,
p. 3694.)
As our Supreme Court explained in Pickens in upholding the validity of
retired judge assignments against a variety of constitutional challenges,
“[w]hether as a matter of policy the system of assignment of retired judges
should be put into effect is for the people of the state to determine through

1 As we discuss infra, the Chief Justice’s appointment authority is now
set forth in article VI, section 6, subdivision (e) of the California Constitution.
The compensation and reimbursement of retired judges sitting on assignment
is now set forth in Government Code section 68543.5.

3
the Constitution or by the Legislature.” (Pickens, supra, 42 Cal.2d at p. 409.)
“That policy has been declared by both, by the Constitution by reasonable im-
plication and by the Legislature in the unmistakable and definite terms of
section 6 of the retirement act.” (Ibid.) The purposes of such provision are,
moreover, wholly beneficial to the state, making “available to the judicial de-
partment the experience, aptitude and capabilities of retired judges who,
with their consent, may be called upon for assistance in the administration of
justice.” (Id. at p. 410.) Utilization of retired judges “is highly desirable not
only in particular cases but also when congestion in judicial business in a
particular locality has become critical, and oftentimes intolerable.” (Ibid.)
The high court went on to explain that “[t]he chairman of the Judicial
Council”—the Chief Justice—“is the logical constitutional officer in whom to
vest the power of assignment. It is one of his [or her] functions to marshal
the judicial manpower of the state by assignment and transfer of judges to fa-
cilitate the dispatch of judicial business. No other person is in better or as
good a position as he [or she] to determine the desirability and need for such
assistance.” (Pickens, supra, 42 Cal.2d at p. 410.) Indeed, “[b]y section 1a of
article VI (subd. 6) of the Constitution the duty is enjoined upon the chair-
man of the Judicial Council to seek to expedite the judicial business of the
state, to equalize the work of the judges, and to provide for the assignment of
incumbent judges from one county to another under certain conditions.”
(Pickens, at p. 409.)
Two decades later, in Mosk v. Superior Court (1979) 25 Cal.3d 474
(Mosk)2, our Supreme Court reaffirmed the broad assignment authority of the
Chief Justice, upholding the validity of a Supreme Court comprised entirely

Superseded by statute on other grounds as stated in Adams v.
2

Commission on Judicial Performance (1994) 8 Cal.4th 630, 650.
4
of appointed Court of Appeal justices on the recusal of the sitting justices.
Justice Mosk, who was challenging the issuance of a subpoena by the Com-
mission on Judicial Performance, claimed as a threshold matter, that the
high court, so constituted, had no constitutional authority to act. (Id. at
pp. 479-480.)
The Supreme Court reiterated that “[t]he Chief Justice has long had
constitutional authority to assign any lower court judge, who is otherwise
qualified, to the Supreme Court to sit in place of a disqualified Supreme
Court justice. The 1926 constitutional amendment which created the Judi-
cial Council (Cal. Const., art. VI, § 1a, now § 6) provided that the Chief Jus-
tice, as chairman of the Judicial Council, ‘shall seek to expedite judicial busi-
ness and to equalize the work of the judges, and shall provide for the assign-
ment of any judge to another court of a like or higher jurisdiction to assist a
court or judge whose calendar is congested, to act for a judge who is disquali-
fied or unable to act, or to sit and hold court where a vacancy in the office of
judge has occurred.’ As amended in 1966 and 1974, this provision now reads:
‘The Chief Justice shall seek to expedite judicial business and to equalize the
work of judges. The Chief Justice may provide for the assignment of any
judge to another court but only with the judge’s consent if the court is of
lower jurisdiction. A retired judge who consents may be assigned to any
court.’ (Cal. Const., art. VI, § 6, par. 5th.)” (Mosk, supra, 25 Cal.3d at
p. 481.)
Thus, “[t]he Constitution gives the Chief Justice broad authority to ex-
pedite the work of the courts [citation], and implicit in that authority is the
Chief Justice’s power to assign judges to assist the Supreme Court when reg-
ular Supreme Court justices are disqualified. Such assignments have become
commonplace.” (Mosk, supra, 25 Cal.3d at pp. 481-482.) It is further implicit,

5
since “[t]here is no constitutional provision, statute, or court rule which pre-
scribes the manner in which assigned judges are to be selected,”3 that the
“manner, method, or criteria for selection of duly qualified assigned judges is
within the inherent power of the Supreme Court and within the discretion of
the Chief Justice in the exercise of her constitutional authority to make the
assignments.” (Mosk, at pp. 482-483.)
The Court of Appeal brought these principles to bear some twenty
years later in People v. Superior Court (Mudge) (1997) 54 Cal.App.4th 407
(Mudge), in examining the retired judges program and invalidating a statute
that allowed the parties in a criminal case to stipulate that an assigned re-
tired judge was “ ‘not capable or qualified to hear and retry the criminal
case.’ ” (Id. at p. 410.) The statute could not, said the court, “be reconciled
with the Chief Justice’s implied factual determination that the assigned re-
tired judge” was capable and qualified to sit as a judge. (Ibid.)
The appellate court focused on the separation of powers spelled out in
article III, section 3, of the California Constitution and the associated provi-
sions set forth in article VI, section 6, which “expressly grants the Chief Jus-
tice the constitutional power to administer the assignment of judges.”4
(Mudge, supra, 54 Cal.App.4th at pp. 411-412.) Pursuant to these provisions,

3 There is one exception—article VI, section 18, subdivision (e), which
specifies the composition of a tribunal considering a recommendation by the
Commission on Judicial Performance on a sitting Supreme Court justice—
which was not applicable in Mosk (Mosk, supra, 25 Cal.3d at p. 482) and is
not applicable here.
4 California Constitution article VI, section 6, subdivision (e) then pro-
vided and still provides: “The Chief Justice shall seek to expedite judicial
business and to equalize the work of judges. The Chief Justice may provide
for the assignment of any judge to another court but only with the judge’s
consent if the court is of lower jurisdiction. A retired judge who consents may
be assigned to any court.”

6
“ ‘[t]he manner, method, or criteria for selection of duly qualified assigned
judges is within the inherent power of the Supreme Court and within the dis-
cretion of the Chief Justice in the exercise of her [or his] constitutional au-
thority to make the assignments.’ (Mosk[, supra,] 25 Cal.3d [at p.] 483 . . . ,
fn. omitted; see also People v. Ferguson (1932) 124 Cal.App. 221, 231 . . .
[Chief Justice has ‘discretion of the broadest character’ in the assignment of
judges].)” (Mudge, supra, 54 Cal.App.4th at p. 412.)
Indeed, in response to an argument that retired judges were not as
likely to stay abreast of developments in criminal law as sitting judges, the
appellate court pointed out “the Chief Justice had recently promulgated
‘standards and guidelines for judges serving on assignment.’ These stand-
ards and guidelines discuss eligibility to sit on assignment, continuing judi-
cial education requirements, and provide for a signed agreement that the as-
signed retired judge ‘. . . will maintain familiarity with current statutes, case
law, court rules, court procedures, and comply with the continuing education
requirements. . . .’ (Retired Judge Application to Serve on Assignment.)”
(Mudge, supra, 54 Cal.App.4th at p. 414.)
The challenged statute, however, enabled the parties to effectively “veto
the Chief Justice’s constitutional assignment,” thus “substantially im-
pair[ing]” the “Chief Justice’s constitutional power.” (Mudge, supra,
54 Cal.App.4th at p. 412.)
The court acknowledged that “ ‘[t]he Legislature may adopt reasonable
rules and regulations regarding the disqualification of judges [citation].’ ”
(Mudge, supra, 54 Cal.App.4th at p. 412.) But only “as long as it does not de-
feat or materially impair the judicial function. [Citation.] Phrased other-
wise, our Supreme Court has said that any legislative regulation must not
‘substantially impair’ an express provision of the California Constitution.”

7
(Ibid., quoting Sacramento Etc. D. Dist. v. Superior Court (1925) 196 Cal.
414, 432.) The appellate court thus commented that “[b]efore enacting [the
challenged statute], the Legislature should have explored the question posed
by its staff on the Senate Committee on Criminal Procedure: ‘Will this inter-
fere with the Chief Justice’s constitutional right to assign a retired judge to
any court?’ (Sen. Com. on Criminal Procedure, Analysis of Assem. Bill No.
1736 (1995–1996 Reg. Sess.) June 6, 1995, p. 5.)” (Mudge, at p. 413.)
As was alluded to in Mudge, the Judicial Council adopted the TAJP in
1996 to provide administrative support to the Chief Justice in the exercise of
her constitutional authority to assign and reassign judges, including retired
judges. “The Judicial Council is a state entity established by the California
Constitution to ‘improve the administration of justice’ and set policies and
priorities for the judicial branch of government. The Council is chaired by
the Chief Justice of California. Article VI, section 6(e) of the California Con-
stitution directs that: The Chief Justice shall seek to expedite judicial busi-
ness and to equalize the work of judges.” (96 Ops.Cal.Atty.Gen. 36-37 (July
25, 2013), fns. omitted.)
“The Assigned Judges Program (AJP) is administered by the Adminis-
trative Office of the Courts (AOC), which is the staff agency of the Judicial
Council. Assisted by the AJP, and pursuant to the constitutional mandate of
Article VI, section 6(e), the Chief Justice issues temporary judicial assign-
ment orders to active or retired judges and justices in response to a variety of
circumstances, including vacancies, illnesses, disqualifications, and calendar
congestion in the courts.” (96 Ops.Cal.Atty.Gen., supra, at p. 37, fns. omit-
ted.) “Judicial precedent has established that the Chief Justice, as Chair of
the Judicial Council, is invested with ‘discretion of the broadest character’ in
the assignment of judges. As our Supreme Court has stated: ‘The manner,

8
method, or criteria for selection of duly qualified assigned judges is . . . within
the discretion of the Chief Justice in the exercise of her constitutional author-
ity to make the assignments.’ It is ‘a well-settled rule of law that where there
are no restrictive provisions the power of appointment carries with it the
power of removal.’ Accordingly, the Chief Justice’s discretion in the making
of judicial assignments generally encompasses both the non-renewal and the
termination of such assignments.” (Id. at p. 43, fns. omitted.)
In 2017, concerns about the TAJP were brought to the attention of the
Chief Justice,5 who directed Judicial Council staff to conduct an internal
review.6 At the same time, the State Auditor initiated a review of the TAJP
in response to concerns that retired judges were being assigned to courts with
judicial “surpluses.”
As a result of the internal review, the Chief Justice made a number of
changes to the TAJP, including:
Bona Fide Break in Service: There is now a 90-day waiting
period after retirement before a retired judge can participate.
1,320-Day Service Limit: Participation is now limited to 1,320
days, cumulatively (the equivalent of a single term of a full-time elected
superior court judge).

5Some of these concerns, including overlong assignments, appear to
have precipitated the request for the Attorney General Opinion from which
we have just quoted.
6 We grant respondents’ request for judicial notice and refer here to
some of the noticed materials, which were also before the trial court, and
which include: the Judicial Council’s Temporary Assigned Judges Program
Handbook (June 2019), the State Auditor’s report investigating activities of
state agencies and employees, and a memorandum issued by the
Administrative Director of the Judicial Council discussing the changes made
to the TAJP (dated May 21, 2018). (See Evid. Code, §§ 452, subd. (c), 459.)

9
 120-Day Service Limit Per Year: Participation per fiscal year
is limited to 120 days.
Resource Allocation: Courts now receive an initial allocation of
additional judicial resources, representing a floor of prospective service
days. Requests for service above that floor are evaluated on a case-by-
case basis, upon a showing of demonstrable need.
Exceptions: The 90-, 120-, and 1,320-day service limitations can
be adjusted if a superior court seeking TAJP assistance shows, among
other things, the absence of other available retired judges or if there is
a strong need for a specific retired judge. Accordingly, retired judges
who reach the 1,320-day service limit can continue to enroll in TAJP
and may be assigned to a superior court submitting an exception report
that demonstrates “why it is both prudent and necessary to reappoint
the judge specifically requested by the court.”
These changes to the TAJP were announced in May 2018, and became
effective on July 1, 2018, after having been reviewed by the Judicial Council’s
Trial Court Presiding Judges Committee, the Court Executives Advisory
Committee, and the Administrative Presiding Justices Advisory Committee.
Before adoption, Judicial Council staff, on behalf of the Chief Justice,
conducted more than 50 transition meetings and conference calls with
individual presiding judges and court executive officers.
The State Auditor was notified of these changes to the TAJP, and
ultimately reported that “[b]y modifying the process to establish metrics for
judicial participation and changing how it allocates service days and funds in
the AJP, the Judicial Council has taken steps to administer the AJP in a
more efficient manner.”

10
The First Amended Complaint7
Plaintiffs are retired judges who have long participated in the TAJP
and who, at the time of the 2018 changes to the program, had already served
more than 1,320 days as assigned temporary judges. Plaintiffs do not claim
that they have been denied any appointments, but that the changes, and the
1,320-day service limit, in particular, subjects them to “different” conditions
than “younger judges.” Specifically, they maintain the “policy of arbitrarily
limiting assigned judges to 1,320 days of service” has a “disparate impact” on
them “and other persons of their age” because they will “no longer be given
assignments unless they receive an ‘exception’ to the policy.”
Plaintiffs named as defendants the Chief Justice in her “official
capacity as Chair of the Judicial Council” and the Judicial Council. They
alleged two causes of action—disparate impact age discrimination in violation
of the FEHA and violation of the state constitution. Plaintiffs have
acknowledged their second cause of action has no independent vitality and
stands or falls with their first. They initially sought “back pay, front pay, and
other monetary relief,” as well as declaratory and injunctive relief, but
subsequently abandoned any “damages claims against the Chief Justice.”
Denial of Preliminary Injunctive Relief
Plaintiffs moved for a preliminary injunction to enjoin retroactive
application of the 1,320-day service limit, supporting their motion with a
number of declarations.
Defendants filed opposition, which included counter-declarations and
exhibits. Defendants maintained plaintiffs were unlikely to prevail, and

7 We provide only a brief overview of the procedural history here and
discuss the plaintiffs’ allegations in more detail in connection with our
substantive discussion of the issues on appeal.

11
therefore preliminary relief should be denied, for two reasons—because suit
is barred by legislative immunity and because plaintiffs cannot state a viable
claim for disparate impact age discrimination under the FEHA.
The trial court denied relief on both grounds. The court first ruled the
changes to the TAJP were “an act of rulemaking expressly grounded in the
Judicial Council’s and the Chief Justice’s constitutional authority which has
all the hallmarks of a legislative action: detailed policy analysis, use of
discretion, implication of budgetary priorities, and prospective application.”
Secondly, as to the sufficiency of plaintiffs’ allegations, the court ruled,
“experience may but does not necessarily correlate with age, because age and
work experience are analytically different” and respondents’ evidence “
‘convincingly show[ed]’ ” that “whether a given retired judge has already
reached the 1,320 limit does not correlate to his or her age or even to the
number of years he or she has served” in the program.
Demurrer and Dismissal
Defendants subsequently demurred to the first amended complaint,
asserting that the suit was barred by legislative immunity and, alternatively,
that plaintiffs failed to allege a prima facie case of disparate impact age
discrimination under the FEHA.
In their opposition, plaintiffs acknowledged they had already fully
briefed the issue of legislative immunity in connection with their motion for a
preliminary injunction and the trial court had ruled against them on that
issue. While they continued to believe legislative immunity did not apply,
they stated that “[s]hould the Court adhere to its previous ruling,” there was
no need for the court to consider defendants’ other contentions. Plaintiffs
therefore devoted their written opposition to defending their FEHA claim,

12
including representing they could allege additional facts that would cure any
perceived shortcoming in their allegations of a prima facie case.
In reply, defendants urged the court to reach the FEHA pleading issue
and further maintained plaintiffs had not offered any amendment that could
cure the deficiencies of their allegations.
The court sustained the demurrer without leave to amend solely on the
ground of legislative immunity, referring to its prior ruling denying
preliminary injunctive relief. It additionally observed plaintiffs had
“conced[ed]” they could not recover damages for the Chief’s Justice’s
“discretionary acts in administering” the TAJP, citing Government Code
section 820.2 (which protects public employees from damages claims for
discretionary acts) and Caldwell v. Montoya (1995) 10 Cal.4th 972 (Caldwell)
(which holds discretionary immunity extends to damages claims under the
FEHA). This concession, said the court, provided “further support” for its
conclusion that plaintiffs’ suit is barred by legislative immunity.
DISCUSSION
Immunity from Suit8
Promulgation of New TAJP Requirements
In concluding the instant lawsuit is barred by legislative immunity, the
trial court placed considerable reliance on Schmidt v. Contra Costa County

8 Whether immunity forecloses suit is properly raised by demurrer and
our review of the ensuing judgment of dismissal is de novo. (See, e.g.,
Caldwell, supra, 10 Cal.4th at p. 978 [appeal from judgment of dismissal
following sustaining of demurrer; concluding as a matter of law that
discretionary immunity barred plaintiff’s FEHA claims against individual
school board members]; Esparza v. County of Los Angeles (2014)
224 Cal.App.4th 452, 455, 459 (Esparza) [same; concluding as a matter of law
that legislative immunity barred plaintiff’s FEHA claims against board of
supervisors]; People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 928-
13
(9th Cir. 2012) 693 F.3d 1122 (Schmidt). We agree Schmidt is of significant
import.
In Schmidt, the plaintiff sued a number of individual superior court
judges and the court’s executive officer, in both their individual and official
capacities, based on the court’s adoption of changes to its subordinate judicial
officer (SJO) policy and, specifically, changes to the qualifications for service
as such. (Schmidt, supra, 693 F.3d at pp. 1129-1130.) As a result, the
plaintiff was no longer eligible to serve as a temporary court commissioner.
She sued, claiming the changes were made in retaliation for having
challenged a sitting judge running for reelection. (Id. at pp. 1126-1127.)
Several rounds of challenges to the pleadings followed, with the district
court eventually dismissing claims based on the promulgation of the new SJO
policy on the ground of legislative immunity. (Schmidt, supra, 693 F.3d at
pp. 1130-1131.) The court denied the dismissal motions, however, as to
claims based on the “retroactive” application of the new policy. (Id. at
p. 1131.) After discovery, the defendants moved for summary judgment on
these remaining claims, including on the ground of legislative immunity.
(Ibid.) The district court granted the motion on several grounds. (Ibid.) The
Ninth Circuit affirmed solely on the ground of legislative immunity. (Id. at
p. 1127.)
After stating generally that, as a matter of federal law, “ ‘[l]egislators
are entitled to “absolute common-law immunity against civil suits for their
legislative acts, which is parallel to the immunity provided by the Speech or
Debate Clause” ’ ” and that such “immunity applies to actions for damages
and for injunctive relief,” the circuit court turned to the first issue relevant to

929 (Rizzo) [same; concluding as a matter of law that legislative immunity
barred claims based on non-ultra vires actions by city council].)

14
determining whether a defendant is entitled to legislative immunity—
whether the defendant acted within its “delegated legislative powers.”
(Schmidt, supra, 693 F.3d at p. 1132.)
The superior court’s authority to adopt the new SJO policy, said the cir-
cuit court, was “not clear-cut” given that such authority is “not specifically
enumerated in California law,” in contrast to the Judicial Council’s “specific
statutory authority to ‘promulgate rules establishing the minimum qualifica-
tions and training requirements for [SJOs].’ ” (Schmidt, supra, 693 F.3d at
p. 1133, quoting Gov. Code, § 71622, subd. (c).) The court went on to con-
clude, however, that the superior court had such authority by virtue of the
California Rules of Court authorizing superior courts to adopt personnel poli-
cies, and to further conclude this authority extended to requiring qualifica-
tions for SJOs more demanding than the minimum qualifications established
by the Judicial Council. (Schmidt, at pp. 1134-1135.) Accordingly, in making
changes to its SJO policy, the superior court had, indeed, “acted within its
legislative authority.” (Id. at p. 1135.)
The circuit court then turned to whether the superior court’s chal-
lenged action was “legislative” in character, and in this regard, considered
the four factors federal courts have identified as bearing on the issue: “ ‘(1)
whether the act involves ad hoc decisionmaking, or the formulation of policy;
(2) whether the act applies to a few individuals, or to the public at large; (3)
whether the act is formally legislative in character; and (4) whether it bears
all the hallmarks of traditional legislation.’ ” (Schmidt, supra, 693 F.3d at
p. 1135, quoting Kaahumanu v. County of Maui (9th Cir. 2003) 315 F.3d
1215, 1220.) The court also pointed out that in making this inquiry, “ ‘the of-

15
ficials’ actions . . . must be “stripped of all considerations of intent and mo-
tive.” ’ ” (Schmidt, at p. 1136, quoting Bogan v. Scott–Harris (1998) 523 U.S.
44, 55 (Bogan).9)
The circuit court readily concluded the challenged revision to the supe-
rior court’s SJO policy was legislative in character. It “clearly [was] not an ad
hoc decision,” as the court was not acting on “an individual application,” but
“was creating a binding rule for all attorneys serving” as temporary judges,
commissioners, and referees. (Schmidt, supra, 693 F.3d at p. 1136.) Nor did
the policy apply to only a few individuals, but “affected every temporary
judge, temporary commissioner, and temporary referee” appointed after a
specific date and into the future. (Ibid.) And while it did, indeed, apply to
the four individuals then serving as pro tem judges and commissioners, it
also extended “to all future applications for such positions.” (Id. at pp. 1136-
1137.)
The revision to the policy was also “ ‘formally’ ” legislative in character,
as the court’s executive committee had discussed the changes and adopted
them by a vote. (Schmidt, supra, 693 F.3d at p. 1137.) The action addition-
ally had the “hallmarks of traditional legislation,” which include “the use of
discretion, the making of policy that implicates budgetary priorities and the

9 In Bogan, a city council and mayor eliminated the city’s department
of health and human services, “of which [the] plaintiff . . . was the sole
permanent employee, shortly after [she] prepared termination charges
against a politically well-connected temporary employee serving under her
who had allegedly made repeated racial and ethnic slurs against her
colleagues.” (Schmidt, supra, 693 F.3d at p. 1136.) Despite the gravity of the
allegations, the United States Supreme Court “nevertheless granted
legislative immunity to the city council members and the mayor,” concluding
with “ ‘little trouble’ that their acts of introducing, voting for, and signing the
ordinance eliminating the department into law, were ‘quintessentially
legislative.’ ” (Ibid., quoting Bogan, supra, 523 U.S. at p. 55.)

16
provision of services, and prospective implications that reach beyond the par-
ticular persons immediately impacted.” (Ibid.) Adoption of the changes to
the court’s SJO policy “was certainly a discretionary act.” (Ibid.) It also im-
plicated the provision of court services, as setting “the qualifications of those
who would be allowed to serve” as a SJO “had a direct impact on litigants.”
(Ibid.) It additionally “had prospective implications reaching beyond the par-
ticular temporary commissioners and private judges immediately affected”—
it applied to “everyone wishing to serve in certain temporary bench officer po-
sitions” in the court.10 (Id. at pp. 1137-1138.)
Because the plaintiff had pursued state constitutional claims as well,
the circuit court next turned to legislative immunity as defined and applied
under California law. As the court observed, the doctrine’s state law roots
are “grounded in the separation of powers doctrine, embodied in Article III,
Section 3 of the California Constitution: ‘The powers of state government are
legislative, executive, and judicial. Persons charged with the exercise of one
power may not exercise either of the others except as permitted by this Con-
stitution.’ See D’Amato v. Superior Court [(2008)] 167 Cal.App.4th 861 . . .
[(D’Amato)]; Steiner v. Superior Court [(1996)] 50 Cal.App.4th 1771 . . . [(Stei-
ner)]. A ‘corollary of the separation of powers doctrine . . . is legislators have

10 Thus, the adoption of the changes to the court’s SJO policy was not,
explained the court, merely an administrative action such as a single
“personnel decision”—actions the federal courts have held are not legislative
in character. (Schmidt, supra, 693 F.3d at p. 1137, fn. 15; see, e.g., Forrester
v. White (1988) 484 U.S. 219, 220-221 [judge’s allegedly discriminatory
dismissal of female probation officer was not legislative act and judge was not
entitled to legislative immunity from suit], superseded by statute on other
grounds as stated in LeClerc v. Webb (E.D.La. 2003) 270 F.Supp.2d 779, 792-
793.)

17
absolute immunity from damage suits based on legislative acts.’[11] [Citation.]
To determine whether a governmental action qualifies as ‘legislative,’ the
California courts focus on whether governmental actions ‘contain matter
which is properly to be regarded as legislative in character and effect.’ ”
(Schmidt, supra, 693 F.3d at pp. 1138-1139, fn. omitted.) And in this regard,
the circuit court referred to its preceding discussion explaining why the adop-
tion of the new SJO policy was “ ‘legislative in character.’ ” (Id. at p. 1139.)
In short, the circuit court concluded the only material distinction in leg-
islative immunity as understood and applied by the federal courts and the
California courts is the foundation to which this common law doctrine is teth-
ered—a conclusion with which we agree. (Compare, e.g., Bogan, supra,
523 U.S. at pp. 48-49 [legislative immunity “ ‘has [its] taproots in the Parlia-
mentary struggles of the Sixteenth and Seventeenth Centuries’ and was
‘taken as a matter of course by those who severed the Colonies from the
Crown and founded out Nation’ ”; the “Federal Constitution, the constitutions
of many of the newly independent States, and the common law thus protected
legislators from liability for their legislative activities”] & Rizzo, supra,
214 Cal.App.4th at p. 939 [“ ‘The powers of state government are legislative,
executive, and judicial. Persons charged with the exercise of one power may
not exercise either of the others except as permitted by this Constitution.’
[Citation.] Separation of powers means that ‘legislators have absolute im-
munity from damage suits based on legislative acts’ [citation],” as well as
“suits for declaratory and injunctive relief”].)

11 This immunity also extends to suits for injunctive and declaratory
relief. (Esparza, supra, 224 Cal.App.4th at p. 460; Rizzo, supra,
214 Cal.App.4th at pp. 939-940.)

18
 Otherwise, our state courts, as do the federal courts, first examine the
authority of the defendant to take the challenged action and next consider
whether the action is legislative in character. (See, e.g., Rizzo, supra,
214 Cal.App.4th at pp. 940-944 [legislative immunity applies to authorized
acts, not ultra vires acts]; D’Amato, supra, 167 Cal.App.4th at pp. 876-879
[acts allegedly afflicted with conflict of interest were nevertheless largely leg-
islative in character and thus could not support indictment]; Steiner, supra,
50 Cal.App.4th at pp. 1787-1788 [“ ‘The essentials of the legislative function
are the determination of the legislative policy and its formulation and prom-
ulgation as a defined and binding rule of conduct.’ ” Quoting Yakus v. United
States (1944) 321 U.S. 414, 424)].)12
We therefore conclude Schmidt and other federal cases holding legisla-
tive immunity barred actions against courts and individual judges provide a
sound template here. (E.g., Goodwin v. Castille (3d Cir. 2012) 465 Fed.Appx.
157, 160-161 (Goodwin) [action against state supreme court and individual
justices based on court’s elimination of a magisterial district, barred by legis-
lative immunity]; Gallas v. Supreme Court of Pennsylvania (3d Cir. 2000)
211 F.3d 760, 774-777 (Gallas) [action against state supreme court and indi-
vidual justices based on court’s reorganization of judicial district that elimi-
nated executive administrator position and created governing board, barred

12 Thus, contrary to plaintiffs’ assertion, the fact Schmidt and other
federal legislative immunity cases have largely been brought as “civil rights”
actions under title 42 United States Code section 1983, is immaterial. As the
United States Supreme Court has explained, legislative immunity is a
venerable common law doctrine that significantly pre-dates the enactment of
title 42 United States Code section 1983. (Bogan, supra, 523 U.S. at p. 49
[“legislators were entitled to absolute immunity from suit at common law and
[] Congress did not intend the general language of § 1983 to ‘impinge on a
tradition so well grounded in history and reason’ ”].)

19
by legislative immunity]; Alia v. Michigan Supreme Court (6th Cir. 1990)
906 F.2d 1100, 1102 [action against state supreme court and individual jus-
tices based on court’s promulgation of mediation rule, barred by legislative
immunity].)
We further conclude the Chief Justice’s promulgation of the revised
TAJP was both within her sphere of authority and legislative in character.
As we have discussed, it has long been recognized that the “manner,
method, or criteria for selection of duly qualified assigned judges is within the
inherent power of the Supreme Court and within the discretion of the Chief
Justice in the exercise of her constitutional authority to make the assign-
ments” and that this authority extends to the TAJP. (Mosk, supra, 25 Cal.3d
at p. 483; Mudge, supra, 54 Cal.App.4th at pp. 412-414; 96 Ops.Cal.Atty.Gen.,
supra, at p. 37.)
That the Chief Justice has not been invested with the state’s “entire”
legislative authority over the assignment of judges, given the statutory un-
derpinnings of the TAJP, is not, contrary to plaintiffs’ assertion, fatal to the
application of legislative immunity. (Schmidt, supra, 693 F.3d at p. 1133, fn.
11.) As did the plaintiff in Schmidt, plaintiffs cite to Supreme Court of Vir-
ginia v. Consumers Union of the United States, Inc. (1980) 446 U.S. 719 (Con-
sumers Union)13, wherein the United States Supreme Court held that to the
extent the plaintiff’s constitutional challenge was based on the Virginia Su-
preme Court’s promulgation of state bar rules prohibiting attorney advertis-
ing, the action against the court and the chief justice was barred by legisla-
tive immunity. (Id. at pp. 731-734.) In so concluding, the high court ob-
served that the state had delegated to its Supreme Court the state’s “entire

13Superseded by statute on other grounds as stated in LeClerc v.
Webb, supra, 270 F.Supp.2d 779.
20
legislative power with respect to regulating the Bar, and its members are the
State’s legislators for the purposes of issuing the Bar Code.” (Id. at p. 734.)
The court did not suggest, however, that a state legislature must completely
abdicate its authority to an administrative or judicial body before these coor-
dinate branches of government can exercise “legislative” authority. Nor has
any federal court ever disagreed with Schmidt that a state need not turn over
the “entirety” of its legislative authority to a court before legislative immun-
ity applies to the court’s legislative actions.
There also can be no serious dispute that the Chief Justice’s promulga-
tion of the revised TAJP was legislative in character. It was not “an ad hoc
decision,” as the Chief Justice was not acting on “an individual application.”
(Schmidt, supra, 693 F.3d at p. 1136.) Rather, her action established require-
ments applicable to all retired judges participating in the TAJP. (Ibid.) Nor
does the revised program apply to only a few individuals. Rather, it affects
every retired judge who participates, from the date of its adoption and into
the future. (Ibid.) And while the revised program does, indeed, apply to
those retired judges who were participating in the program at the time it was
revised, it also applies “to all future” participants. (Id. at pp. 1136-1137.)
The revisions to the TAJP are also “formally” legislative in character
and bear the “hallmarks of traditional legislation.” (Schmidt, supra, 693 F.3d
at p. 1137.) While there was no formal “vote” by the Judicial Council to adopt
the revisions, there is no such requirement for an act to be legislative in char-
acter. (See Church v. Missouri (8th Cir. 2019) 913 F.3d 736, 753-754 [gover-
nor’s exercise of authority to reduce appropriation was legislative in charac-
ter]; Goodwin, supra, 465 Fed.Appx. at pp. 159, 162 [state supreme court’s is-
suance of per curiam order eliminating magisterial district was legislative in
character]; Johnson v. Kernan (N.D.Cal. Aug. 6, 2019, No. 17-07133 BLF)

21
2019 WL 3718587 *5 [department chief’s promulgation of regulations pursu-
ant to statutory authorization was legislative in character].)
What is pivotal is that the Chief Justice acted “pursuant to a
constitutionally valid protocol” (Goodwin, supra, 465 Fed.Appx. at p. 162) and
did so after an ample deliberative process, which included review by the
Judicial Council’s Trial Court Presiding Judges Committee, the Court
Executives Advisory Committee, and the Administrative Presiding Justices
Advisory Committee, as well as over 50 transition meetings and conference
calls between Judicial Council staff and individual presiding judges and court
executive officers.
Thus, the revisions were “certainly a discretionary act” that reflected a
carefully weighed policy change, implicating budgetary priorities and the
provision of judicial services. (Schmidt, supra, 693 F.3d at p. 1137; see
Goodwin, supra, 465 Fed.Appx. at p. 161 [state supreme court’s per curium
order eliminating magisterial district “effectuated a general policy-making
decision to reorganize the structure of the magisterial district courts”];
Gallas, supra, 211 F.3d at pp. 774-775 [state supreme court’s order
reorganizing administration of judicial district “involved a ‘policy-making
decision of a general scope’ ”].)
Accordingly, promulgation of the revised TAJP was not, as plaintiffs
assert, a mere administrative act falling outside the bounds of legislative
immunity. Indeed, as we have noted, the federal courts have, in like
contexts, rejected similar claims that courts and/or individual justices
performed only administrative acts. (Schmidt, supra, 693 F.3d at p. 1137, fn.
15 [court’s promulgation of new SJO policy was not a mere personnel action
affecting only a limited number of individual employees]; Gallas, supra,
211 F.3d at p. 775, fn. 16 [action by “the highest court of a state exercis[ing]

22
its direct constitutional authority to promulgate rules and orders governing
the ‘practice, procedure and . . . conduct’ of states courts” is protected by
legislative immunity]; see Bogan, supra, 523 U.S. at pp. 55-56 [local
legislators’ adoption of ordinance eliminating department staffed by single
employee was “a discretionary, policymaking decision” with “prospective
implications,” and while it involved the termination of a position, it was
“unlike the hiring or firing of a particular employee”]; Esparaza, supra,
224 Cal.App.4th at pp. 460-463 [board of supervisor’s action eliminating
public safety office and merging functions with county sheriff’s department,
resulting in the elimination of plaintiffs’ positions, was legislative action].)
Enforcement of New TAJP Requirements
A more difficult issue is whether plaintiffs can pursue a lawsuit for
prospective declaratory relief against the Chief Justice and Judicial Council
based on “enforcement” of the new TAJP requirements under the reasoning of
Consumers Union.
As we have discussed, the United States Supreme Court held in
Consumers Union that legislative immunity foreclosed claims against the
Virginia Supreme Court and its chief justice based on the court’s
promulgation of new ethics rules prohibiting lawyers from advertising.
(Consumers Union, supra, 446 U.S. at pp. 724-725, 731-734.) Thus, “[i]f the
sole basis” of the plaintiff’s claims “were the issuance of, or failure to amend,
the challenged rules,” legislative immunity would have entirely barred the
lawsuit. (Id. at p. 734.) However, the state supreme court “perform[ed] more
than a legislative role with respect to the State Bar Code.” (Ibid.) It also
heard appeals in bar disciplinary proceedings and, in addition, had
“independent enforcement authority of its own.” (Ibid.) The high court held
that, in this latter capacity, the state Supreme Court and its Chief Justice

23
were “proper defendants in a suit for declaratory and injunctive relief, just as
other enforcement officers and agencies.” (Id. at p. 736.) With no claim of
judicial immunity before it, the Supreme Court expressly did not reach the
scope of that doctrine. (Ibid.)
The trial court here concluded Consumers Union was inapposite
because “[t]he instant case involve[d]” only an “exercise of rulemaking
authority governing the TAJP” and not the “exercise of enforcement authority
against individuals.” However, this is too narrow a view of the plaintiffs’
claim. Plaintiffs alleged they submitted applications for temporary
appointment but will be adversely impacted by the new TAJP provisions
given their prior extensive participation in the program. Plaintiffs have not,
at this point, alleged they have received no assignments. But this is not fatal
given that they filed their lawsuit only six months after the new provisions
went into effect. Further, given the way in which temporary appointments
are made—a retired judge does not apply to fill a particular position but
rather applies to be a participant in the TAJP and awaits call by the Chief
Justice—generally the most a plaintiff can allege with respect to
implementation and/or enforcement of the new TAJP provisions is that he or
she applied for and was accepted into the program but then, in contrast to his
or her prior service, received no appointments.
Similar to the dual role of the Virginia Supreme Court and its Chief
Justice in Consumers Union in promulgating and enforcing that state’s bar
rules, our Chief Justice has a dual role with respect to the TAJP—she both
sets policy for the TAJP, as she did by promulgating the challenged changes
to the program, and makes individual assignments pursuant to that policy.
As we have discussed, there is no question the former activity is legislative in
character. The latter actions, however, are different in character and fall

24
within the Chief Justice’s unique constitutional and statutory authority to
manage the judicial branch and thus come within the bounds of judicial im-
munity (and also discretionary immunity), rather than legislative immunity.
(See Gov. Code, § 820.2; Caldwell, supra, 10 Cal.4th at pp. 979-984; Mudge,
supra, 54 Cal.App.4th at pp. 411-412; 96 Ops.Cal.Atty.Gen., supra, at p. 37.)
Thus, while we agree with the trial court that the Chief Justice, in mar-
shalling and deploying our state’s judicial resources, is not engaged in con-
duct that can be fairly described as mere administrative enforcement activity,
as was the case with respect to the Virginia Supreme Court’s enforcement of
the state bar rules in Consumers Union, that does not alter the fact that the
Chief Justice has a dual role with respect to the TAJP and that legislative
immunity applies only to her role in formulating and promulgating the poli-
cies and rules that govern the program.14 (See Consumers Union, supra,
446 U.S. at p. 736.)
We therefore turn to the reach of judicial immunity, which the United
States Supreme Court considered in the wake of Consumers Union in Pul-
liam v. Allen (1984) 466 U.S. 522 (Pulliam), concluding judicial immunity did
not, in that case, bar injunctive relief. The high court first observed that the

14 We note that in Esparza, the Court of Appeal stated, “legislative
immunity extends beyond the adoption of the enactment to its
implementation.” (Esparaza, supra, 224 Cal.App.4th at p. 462.) However,
the appellate court made this statement in the course of pointing out that the
plaintiffs’ claim against the county, based on action by the board of
supervisors, did not “stem from individualized employment decisions.” (Ibid.)
But here we are addressing allegations of individualized appointment
decisions impacting specific, individual TAJP applicants. More significantly,
Esparaza did not involve an action by a court or judicial officer, legislative or
otherwise, and therefore that court had no occasion to, nor did it, discuss
Consumers Union.

25
appellate courts that had addressed the issue were “in agreement” that judi-
cial immunity does not categorically bar injunctive relief. (Id. at p. 528.) The
court next pointed out that while at common law “there was no such thing as
an injunction against a judge” due to the jurisdictional limitations of the Eng-
lish courts (id. at p. 529), a “parallel” could be found “in the collateral pro-
spective relief available against judges through the use of the King’s preroga-
tive writs.” (Ibid.) After an extensive discussion of the historical use of such
writs, the court concluded this indicated there was no “inconsistency” be-
tween judicial immunity principles protecting the courts and judiciary from
harassing litigation, and the availability of collateral injunctive relief “in ex-
ceptional cases.” (Id. at p. 536.)
The high court then reviewed its own precedent, observing it was “fully
consistent with the common law’s rejection of a rule of judicial immunity from
prospective relief” and the court had never embraced a rule of judicial
immunity from such relief. (Pulliam, supra, 466 U.S. at p. 536.) It pointed
out “injunctive relief against a judge raises concerns different from those
addressed by the protection of judges from damages awards,” and that the
requirements for obtaining equitable relief—an inadequate remedy at law
and irreparable harm—“severely curtail the risk that judges will be harassed
and their independence compromised by the threat of having to defend
themselves against suits by disgruntled litigants.” (Id. at pp. 537-538.)
As a result of the court’s conclusion that judicial immunity did not
foreclose prospective injunctive relief, the judge against whom such relief had
been granted (based on actions that were indisputably judicial in character)
was subject to an attorney fee award under title 42 United States Code
section 1988. (Pulliam, supra, 466 U.S. at pp. 541-544.)

26
 There was a vigorous dissent (Pulliam, supra, 466 U.S. at pp. 544-557,
dis. opn. Powell, J.), and after heavy lobbying by jurists, Congress eventually
responded by amending title 42 United States Code section 1983 to rein in
Pulliam’s holding and prohibit injunctive relief against judicial officers in
civil rights cases except where declaratory relief is unavailable or a judge has
violated a declaratory decree. (See Justice Network Inc. v. Craighead County
(8th Cir. 2019) 931 F.3d 753, 763 (Justice Network.) “In other words, ‘judicial
immunity [now] typically bars claims for prospective injunctive relief against
judicial officials acting in their judicial capacity. Only when a declaratory de-
cree is violated or declaratory relief is unavailable would plaintiffs have an
end-run around judicial immunity.’ ” (Ibid.)
Thus, it is generally recognized by the federal courts that judicial im-
munity, unlike legislative immunity, does not foreclose suit for prospective
declaratory relief and in limited circumstances does not foreclose injunctive
relief. (Justice Network, supra, 931 F.3d at pp. 763-764.)
California’s courts have had little to say in published opinions about
the reach of judicial immunity. In Greene v. Zank (1984) 158 Cal.App.3d 497
(Greene), a bar applicant brought a title 42 United States Code section 1983
claim against the State Bar, the Committee of Bar Examiners, and the State
Bar attorney in charge of pre-admission investigations. (Id. at p. 500.) The
trial court sustained the defendants’ demurrer on the ground of quasi-judicial
immunity, and the court of appeal affirmed. (Ibid.) In doing so, the appellate
court applied federal law, including Consumers Union and Pulliam. (Id. at
pp. 506-508.) It also noted judicial immunity “does not absolutely insulate ju-
dicial officers from declaratory or injunctive relief” (id. at p. 507, fn. 10)—
which remains an accurate statement of the law, even with the subsequent

27
amendment of title 42 United States Code section 1983 severely limiting pro-
spective injunctive relief.
In Lezama v. Justice Court (1987) 190 Cal.App.3d 15 (Lezama), a num-
ber of misdemeanants sued the court in which they had been convicted,
claiming they had been improperly assessed public defender fees without a
determination as to their ability to pay. They alleged state law claims for vio-
lating the Penal Code and civil rights claims under title 42 United States
Code section 1983 and sought declaratory and injunctive relief. (Lezama, at
pp. 18-19.) The trial court set aside the fee assessments but denied equitable
relief on the ground it lacked authority to grant such relief and also denied
attorney fees. (Id. at p. 20.) One of the plaintiffs appealed, and the Court of
Appeal affirmed, but on a different ground. Stating the appeal turned on the
plaintiff’s entitlement to injunctive relief, and citing to Pulliam, the court
concluded the plaintiff could not establish either prerequisite for such relief—
an inadequate remedy at law and serious risk of irreparable harm. (Id. at
p. 21.) The court went on to conclude the plaintiff also did not satisfy the re-
quirements for fees under Code of Civil Procedure section 1021.5 (based on
his success in setting aside the assessment), nor was he entitled to fees under
title 42 United States Code section 1988 given his failure to pursue his legal
remedies in the criminal case. (Lezama, at pp. 23-24.) Thus, Lezama sug-
gests California’s view of the scope of judicial immunity accords with that of
the federal courts.
Since it appears to be the universal view of the federal courts, with
sound basis, that the common law doctrine of judicial immunity has never
foreclosed declaratory relief, we take that view, as well.15

15 Judicial immunity does foreclose a damages award. (See Huminski
v. Corsones (2d Cir. 2004) 396 F.3d 53, 73-75, 77.)
28
 In fact, in Stewart v. Bird (1979) 100 Cal.App.3d 215, the Chief Justice
and the Judicial Council were sued for declaratory relief by a retired judge of
a justice court who maintained he was eligible to participate in the assigned
judge program. (Id. at p. 216-217.) The defendants made no claim in that
case that they were immune from suit under any theory, and the trial court
ruled against the former judge on the merits. The Court of Appeal affirmed,
also on the merits. (Id. at pp. 218-220.) While it is “axiomatic that cases are
not authority for propositions not considered” (People v. Ault (2004)
33 Cal.4th 1250, 1268, fn. 10), Stewart nevertheless is in keeping with the
then prevailing, as well as the current, view that judicial immunity does not
foreclose actions for declaratory relief.
The claim advanced in the instant case illustrates the practical sound-
ness of the view that judicial immunity does not foreclose actions seeking pro-
spective declaratory relief. In Schmidt, the plaintiff claimed only that the su-
perior court adopted its more stringent SJO policy in retaliation for her exer-
cise of First Amendment rights; she did not allege the new policy, in and of it-
self, was unlawful in any way. (Schmidt, supra, 693 F.3d at pp. 1126-1127.)
Here, in contrast, plaintiffs make no claim the Chief Justice had an improper
motive in promulgating the changes to the TAJP. Rather, they assert these
changes render the TAJP, itself, unlawfully discriminatory and the program
will remain so on a going forward basis. Had the Legislature or a state
agency created such an allegedly discriminatory program, there would be no
question that the program could be challenged through suit against the state
or the administrative officials enforcing it (although “discretionary immunity”
might well foreclose damages claims). In short, it is not, nor can it be, the
law that any “legislation” promulgated by the courts is, even in its applica-
tion and enforcement, wholly immune from legal challenge and review.

29
 In Consumers Union, the United States Supreme Court also observed
“mere enforcement authority” does not create “a case or controversy with the
enforcement official”—in other words, general enforcement authority, alone,
does not make a case justiciable. (Consumers Union, supra, 446 U.S. at
p. 736, fn. 15.) The court concluded, however, there was “a sufficiently con-
crete dispute” as to the constitutionality of the attorney advertising ban.
(Ibid.)
California courts similarly require an “actual controversy” before enter-
taining a suit for declaratory relief. (See, e.g., Communities for a Better Envi-
ronment v. State Energy Resources Conservation & Development Com. (2017)
19 Cal.App.5th 725, 732-734; Environmental Defense Project of Sierra County
v. County of Sierra (2008) 158 Cal.App.4th 877, 885. However, an actual con-
troversy can “encompass[] a probable future controversy relating to the legal
rights and duties of the parties,” although a “probable future controversy
must be ripe,” meaning “ ‘the facts have sufficiently congealed to permit an
intelligent and useful decision to be made.’ ” (Ibid.) We conclude there is such
an “actual controversy” over the changes to the TAJP here, thus overcoming
the initial hurdle of justiciability. (See Communities for Better Environment,
at pp. 736-739 [declaratory relief action challenging constitutionality of stat-
ute]; Environmental Defense Project of Sierra County, at pp. 884-886 [declara-
tory relief action challenging local development policy].)
Because we conclude neither legislative immunity nor judicial immun-
ity wholly bars plaintiffs’ suit for prospective declaratory relief, we turn to
the alternative ground defendants urged in support of their demurrer—that
plaintiffs’ allegations do not, and cannot, support a disparate impact age dis-
crimination claim under the FEHA.

30
Sufficiency of Disparate Impact Allegations16
Age discrimination claims can be advanced under a disparate treat-
ment or disparate impact theory. To establish a disparate treatment claim, a
plaintiff must prove the defendant intentionally discriminated. (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 (Guz).) To establish
a disparate impact claim, a plaintiff need not prove intent to discriminate,
but must prove that “regardless of motive, a facially neutral employer prac-
tice or policy, bearing no manifest relationship to job requirements, in fact
had a disproportionate adverse effect on members of the protected class.”
(Ibid.)
Disparate impact claims are cognizable under both the FEHA and the
ADEA. (Smith v. City of Jackson (2005) 544 U.S. 228, 232 (Smith); Katz v.
Regents of the University of California (2000) 229 F.3d 831, 835 (Katz); Vil-
lafana, supra, 57 Cal.App.5th at p. 1017.) And because “ ‘their objectives are
the same, California courts have relied upon federal law interpreting title VII
of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and the [ADEA]
(29 U.S.C. § 621 et seq.) to interpret the FEHA. [Citations.]’ (Linsley v.
Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 766. . . .)”
(Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014)
226 Cal.App.4th 886, 894, fn. 4.)
As the United States Supreme Court has emphasized, “disparate-im-
pact liability has always been properly limited in key respects” to avoid the

16 We consider the sufficiency of the allegations of a complaint de novo.
“In making our determination, we admit all facts properly pleaded [citation];
we ‘ “give the complaint a reasonable interpretation, reading it as a whole
and its parts in their context” ’ . . . [and] [w]e read the allegations ‘in the light
most favorable to the plaintiff and liberally construed with a view to attain-
ing substantial justice among the parties.’ ” (Villafana v. County of San Di-
ego (2020) 57 Cal.App.5th 1012, 1016-1017 (Villafana).)

31
serious problems that would ensue “if such liability were imposed based
solely on a showing of a statistical disparity.” (Texas Dept. of Housing &
Community Affairs v. Inclusive Communities Project, Inc. (2015) 576 U.S.
519, 540; see Hardie v. Nat. Collegiate Athletic Association (9th Cir. 2017)
876 F.3d 312, 319-320.) For example, “a disparate-impact claim that relies on
a statistical disparity must fail if the plaintiff cannot point to a defendant’s
policy or policies causing that disparity,” and “[a] robust causality require-
ment” ensures that a disparity, alone, “ ‘does not, without more, establish a
prima facie case of disparate impact.’ ” (Texas Dept. of Housing, at p. 542.)
In addition, the “reasonable factor other than age” (RFOA) provision of the
ADEA “plays its principal role by precluding liability if the adverse impact
was attributable to a nonage factor that was ‘reasonable.’ ” (Smith, supra,
544 U.S. at p. 239; see Hardie, at p. 320 [“defendant’s practice need not be ‘es-
sential’ or ‘indispensable’ to achieving its stated goal, but the relationship be-
tween the practice and its purpose must be more than ‘insubstantial’ ”].) The
FEHA does not have a RFOA provision but includes a “business necessity”
defense (which we discuss, infra), as well as other defenses. (Cal. Code Regs.,
tit. 2, § 11010, subd. (b); see generally Chin et al., Cal. Practice Guide: Em-
ployment Litigation (The Rutter Group 2020) ¶¶ 8:816, 8:830, pp. 8-115 to 8-
116.) These limitations on disparate-impact liability are “necessary to protect
potential defendants against abusive disparate-impact claims” and to prevent
the displacement of “valid governmental and private priorities.” (Texas Dept.
of Housing, at p. 544.)
Thus, in a disparate impact case, a plaintiff must “ ‘allege[] and prove[],
usually through statistical disparities, that facially neutral employment prac-
tices adopted without a deliberately discriminatory motive nevertheless have

32
such significant adverse effects on protected groups that they are “in opera-
tion . . . functionally equivalent to intentional discrimination.” ’ ” (Jumaane
v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1404-1405, quoting Har-
ris v. Civil Service Com. (1998) 65 Cal.App.4th 1356, 1365, italics omitted.)
“ ‘ “[S]tatistical disparities must be sufficiently substantial that they raise
such an inference of causation.” ’ ” (Jumaane, at p. 1405, quoting Carter v.
CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1323–1324 (Carter).)
Conclusory Allegations
Defendants first maintain plaintiffs’ substantive allegations are conclu-
sory and particularly bereft when it comes to causation. We agree.
Plaintiffs allege the 1,320 day service limitation “has a disparate im-
pact on plaintiffs and other persons of their age in that it causes them to be
demonstrably disadvantaged vis-à-vis younger participants in the AJP in the
following manner: plaintiffs, who have 1,320 or more days’ experience in the
Assigned Judges Program, will no longer by given assignments unless they
receive an ‘exception’ to the policy.” “The policy requiring exceptions for par-
ticipation in the AJP does not apply to younger, more recently retired judges,
whose terms, conditions, and privileges of employment have not been
changed. It applies only to judges with more than 1,320 days’ service in the
AJP (‘1320 Judges’), including plaintiffs herein.” Plaintiffs additionally al-
lege, “[m]ost assignments under the exceptions are either to Family Law De-
partments or to courts located in communities far from the home counties of
plaintiffs and most 1320 Judges. . . . In addition, ‘exception’ assignments are
in unfamiliar courts with unfamiliar practices.” Thus, “1320 Judges, in order
to continue to work, are required to accept assignments under these discrimi-
natory terms and conditions,” which plaintiffs further claim are “not based on
any bona fide job qualifications.”

33
 Plaintiffs are correct that disparate impact allegations need not be as
specific as the evidentiary showing required to overcome a defense motion for
summary judgment. (See e.g. Sypherd v. Lazy Dog Restaurants, LLC (C.D.
Cal. July 24, 2020, No. EDCV 20-921 JGB (KKx)) 2020 WL 5846481 *4;
Garay v. Lowes Home Centers, LLC (D. Or., Nov. 14, 2017, No. 1:17-cv-00269-
MC) 2017 WL 5473887 *3 (Garay); Borja-Valdes v. City and County of San
Francisco (N.D. Cal. Sept. 18, 2015, No. 3:14–cv–04168–CRB) 2015 WL
5522287 *7 [“A plaintiff . . . need not plead a McDonnell Douglas[17] prima fa-
cie case to survive a motion to dismiss.”].)
However, the complaint must allege facts or statistical evidence demon-
strating a causal connection between the challenged policy and a significant
disparate impact on the allegedly protected group. (See Texas Dep’t of Hous-
ing, supra, 576 U.S. at p. 543; e.g., Adams v. City of Indianapolis (7th Cir.
2014) 742 F.3d 720, 733 [complaint suffered from “complete lack of factual
content directed at disparate-impact liability”; there were no “allegations
about the number of applicants and the racial makeup of the applicant pool
as compared to the candidates promoted” or the “department as a whole,” “no
allegations about the racial makeup of the relevant workforce” or “the super-
visory ranks” in the departments, and “no factual allegations tending to show
a causal link between the challenged testing protocols and a statistically sig-
nificant racial imbalance” in the higher ranks]; Garay, supra, 2017 WL
5473887 *3 [“disparate impact claim is properly dismissed at the pleading
state when it lacks ‘basic allegations’ regarding statistical methods and com-
parison, or ‘any other factual material to move the disparate-impact claim
over the plausibility threshold’ ”; amended complaint “provide[d] only the

EEOC v. McDonnell Douglas Corp. (8th Cir.1999) 191 F.3d 948
17

(McDonnell Douglas).
34
conclusory allegation that the policy-driven terminations” fell more heavily
on older workers and did not “allege how many people [were] employed by
Lowes, how many total people ha[d] quit or been fired over the same four-
year period, the ages of those who quit or were fired, or any other information
that would allow the Court to reasonably connect [the] fifteen terminations
[of older workers] to the alleged policy or policies”]; Jianqing Wu v. Special
Counsel, Inc. (D.D.C. 2014) 54 F.Supp.3d 48, 55 [“speculative correlation be-
tween age and experience” is “insufficient to state a claim for disparate im-
pact”; at a minimum, plaintiff was required to proffer “some form of statisti-
cal or anecdotal evidence showing that older candidates were being excluded
systematically”].)
Plaintiffs’ allegations suffer from the same sort of infirmities identified
in the cases cited above. There are, for example, no specifics as to the total
number of participants in the TAJP, or the number of participants allegedly
adversely impacted by the challenged changes to the program, or even the
age “group” allegedly adversely impacted. Nor are there any “basic allega-
tions” of statistical methods and comparison, or even any anecdotal infor-
mation of a significant age-based disparity.
Leave to Amend
Plaintiffs predictably ask for leave to amend should we find their alle-
gations lacking. Defendants assert this would be a futile exercise for two rea-
sons.
Preliminary Evidentiary Showing
Defendants first point to the plaintiffs’ evidentiary showing in support
of their motion for a preliminary injunction and claim this showed only an
impact on “ ‘Hard Working Assigned Judges’ ” and no age-based impact suffi-

35
cient to establish a prima facie case of discrimination. Defendants cite no au-
thority, however, for the proposition that it is appropriate to deny leave to
amend following the sustaining of a demurrer, on the basis of an evidentiary
showing made at the outset of a case in support of preliminary injunctive re-
lief.
We also observe that the principal case defendants cite in support of
their assertion that, given the preliminary evidentiary showing, leave to
amend should be denied, Carter, supra, 122 Cal.App.4th 1313, was not a
pleading case. Rather, on the basis of a fully developed trial record, the
Court of Appeal reversed the denial of a defense motion for judgment not-
withstanding the verdict on the ground the plaintiffs failed to prove age dis-
crimination under a disparate impact theory. (Id. at p. 1326.) Thus, defend-
ants are ahead of themselves in pointing to Carter as authority for denying
leave to amend.
Subgroup Within Protected Age Class
Defendants secondly claim leave to amend should be denied because
plaintiffs’ disparate impact claim is based on the alleged impact of the new
TAJP provisions on a “subgroup” of the retired judges who have applied for
temporary appointments (specifically, judges who have already exceeded the
1,320 day service maximum). Defendants maintain a disparate impact age
discrimination claim cannot, as a matter of law, be based on impact on a
“subgroup” of the class protected by the FEHA (persons 40 years of age and
over), to which all retired judges, by definition, belong.
At this point, we return to Carter. In that case, the defendant company
undertook a reorganization that changed the employment status of adminis-
trative managers. (Carter, supra, 122 Cal.App.4th at p. 1319.) About 15 of
these 57 individuals were eventually promoted to new regional positions. (Id.

36
at p. 1320.) All those promoted were women, and most were over 40 years of
age. Plaintiff was not promoted and sued, ultimately going to trial and pre-
vailing on a disparate impact age discrimination claim. (Id. at pp. 1317,
1320-1321.) After unsuccessfully moving for judgment notwithstanding the
verdict, the company appealed. (Id. at p. 1317.) The Court of Appeal re-
versed. (Id. at p. 1326.)
The court first observed the case did not “fit well within the normal
boundary of a disparate impact case. Plaintiff assert[ed] that defendant’s re-
organization caused a disparate impact on women and those over 40 because
the reorganization plan demoted administrative managers, all but one of
whom were women, and about half of whom were over 40.” (Carter, supra,
122 Cal.App.4th at p. 1321.) “Reflecting a basic misunderstanding of the
meaning of disparate impact,” the plaintiff put “great stock in her assertion
that ‘no other group of employees [other than administrative managers] was
adversely affected’” by the reorganization.” (Id. at pp. 1321-1322.) This
proved “too much,” said the court, as the import was “that no woman or per-
son over the age of 40 was adversely affected unless she was an administra-
tive manager. Women were not affected as a group. Persons over 40 were
not affected as a group. Rather, administrative managers were affected as a
group.” (Id. at p. 1322.)
“This lapse in logic—characterizing a category of employees as ‘pro-
tected’ simply because employees in that category are part of a larger pro-
tected class—[was] the type of error Justice O’Connor warned against in Wat-
son [v. Fort Worth Bank and Trust (1988) 487 U.S. 977 (Watson)[18]]. . . . If a
plaintiff can proceed with a disparate impact case on this basis, employers

18Superseded by statute on other grounds as stated in Phillips v.
Cohen (6th Cir. 2005) 400 F.3d 388, 398.
37
will necessarily hire by quotas in all job categories as the only means by
which to avoid repeatedly justifying in a court of law the business necessity of
every decision adversely affecting a segment of its workforce.” (Carter, supra,
122 Cal.App.4th at p. 1322.) Thus, “ ‘[o]nce the employment practice at issue
has been identified, causation must be proved; that is, the plaintiff must offer
statistical evidence of a kind and degree sufficient to show that the practice
in question has caused the exclusion of applicants for jobs or promotions be-
cause of their membership in a protected group. . . . [S]tatistical disparities
must be sufficiently substantial that they raise such an inference of causa-
tion.’ ” (Id. at pp. 1323-1324, quoting Watson, at pp. 994-995, italics added.)
Accordingly, “the mere fact that each person affected by a practice or policy is
also a member of a protected group does not establish a disparate impact.”
(Carter, at p. 1324.)
More specifically, the “plaintiff failed to establish a prima facie case of
disparate impact discrimination because her data set was incomplete, one of
the potential failings of statistical proof mentioned in Watson. [She] offered
no evidence regarding the gender or age composition of all of defendant’s em-
ployees. The evidence was entirely about the effect of the reorganization on
the administrative managers, as though it were a group protected by law.”
(Carter, supra, 122 Cal.App.4th at p. 1325.)
In fact, the defendant “employed close to 10,000 people. There was no
evidence as to the gender and age composition of the entire work force. But
[even] assuming, for purposes of illustration, all of the administrative manag-
ers were adversely affected (which they were not), and assuming roughly half
of the entire work force were either women or persons over 40 years old, and
accepting the evidence that no group in the company other than administra-
tive managers was adversely affected by the reorganization,” this meant “a

38
mere 1.14 percent of the women or persons over 40 suffered an adverse im-
pact. Even if [the court assumed] only 25 percent of the total employee popu-
lation was female or over the age of 40, a trifling 2.28 percent of the protected
classes was affected. And, even more fundamentally, [the] plaintiff did not
present evidence of the total impact on women or those over 40.” (Carter, su-
pra, 122 Cal.App.4th at p. 1326.) In the absence of such evidence, “a prima
facie case [was] not established.” (Ibid.)
Carter relied in considerable part on Katz, supra, 229 F.3d 831. In that
case, the Regents of the University of California, under pressure to downsize
its workforces at the Lawrence Livermore National Laboratory, the Lawrence
Berkeley National Laboratory, and the Los Alamos National Laboratory, of-
fered an early retirement incentive program to members of one retirement
plan (the University of California Retirement Plan (UCRP) plan), whose aver-
age age was 55, but not to members of another retirement plan (the Public
Employees Retirement System (PERS) plan), whose average age was 60. (Id.
at p. 833.) While the university considered providing a similar plan to the
PERS plan group, it entailed significant cost, and the president of the univer-
sity ultimately decided against doing so. (Id. at p. 834.) Members of the
PERS plan sued under the ADEA and the FEHA, alleging intentional and
disparate impact age discrimination theories. (Ibid.) After denying motions
to dismiss and for summary judgment, the district court eventually granted a
defense motion in limine just prior to trial, ruling the plaintiffs could not, as
a matter of law, establish a case of disparate impact. (Ibid.) After the uni-
versity prevailed at trial on the plaintiffs’ intentional discrimination claim,
the plaintiffs appealed the dismissal of their disparate impact claim. The cir-
cuit court affirmed.

39
 The gist of the employees’ disparate impact claim was that “(1) PERS
members tended, on average, to be about 5 years older, and (2) it was increas-
ingly likely that older employees would be members of the PERS program.”
(Katz, supra, 229 F.3d at p. 835.) This lead the court to initially observe that
all employees potentially eligible for early retirement “were within the class
of persons protected by the ADEA,” and “[a]lthough the Ninth Circuit ha[d]
not expressly addressed the issue, some circuits ha[d] held that claims based
on the adverse impact of a policy among sub-classes within a larger protected
class are not cognizable. See, e.g., [McDonnell Douglas Corp., supra,]
191 F.3d 948 . . . ; Criley v. Delta Air Lines, Inc., 119 F.3d 102 (2d Cir.1997).”
(Katz, at p. 835.) Nor did the Katz court reach the issue, given its conclusion
that the “plaintiffs failed to demonstrate causation, which requires substan-
tial statistical evidence sufficient to raise an inference that the disparate im-
pact fell upon employees of a protected age group.” (Id. at p. 836, citing Wat-
son, supra, 487 U.S. at p. 994.)
The circuit court explained that while the plaintiffs “show[ed] that they
were treated differently on the basis of their membership in the PERS pro-
gram, their evidence demonstrate[d] that only 238 of the 895 employees at
the laboratories age 60 or over (roughly 27 percent) were adversely impacted
by the University’s decision. Given the legitimate reason advanced for the
University’s decision, the plaintiff’s statistical evidence [was] insufficient to
raise an inference that the disparate impact fell upon employees by virtue of
their membership in a protected age group.” (Katz, supra, 229 F.3d at
p. 836.) In short, “the statistical evidence of disparate impact upon employ-
ees age 60 or over [was] minimal compared to the number of employees of
that age group not adversely affected by the University’s decision.” (Ibid.)

40
 “At best,” the Katz plaintiffs “demonstrated only that the average age of
the PERS members was 5 years older than the average age of eligible UCRP
members, and plaintiffs concede[d] that numerous UCRP employees older
than the average PERS member were offered [the retirement incentive]. The
factor that determines an employees’ eligibility to participate in [the retire-
ment incentive] is thus not an employee’s age itself, but instead whether that
employee is a member of UCRP. [Citation.] Accordingly, [the] plaintiffs
failed to demonstrate the requisite causal link for a disparate impact claim,
and the district court did not err by dismissing the claim prior to trial.”
(Katz, supra, 229 F.3d at p. 836; see K.H. v. Secretary of the Dept of Home-
land Sec. (N.D. Cal. 2017) 263 F.Supp.3d 788, 794, 796 (K.H.) [granting sum-
mary judgment on disparate impact claim where average employee age at al-
legedly “targeted” field offices was 44.76 years and at other field offices, was
41.5 years, because “a 3–year age difference is insufficiently substantial”;
that the comparative group was, itself, “above the age 40 cutoff for protected
status under the ADEA,” “[a]lthough perhaps not determinative,” also
“weigh[ed] against a finding that the office closures had a ‘significantly ad-
verse or disproportionate impact on persons of a particular [age]’ ”].)
Thus, neither Carter nor Katz held that a disparate impact claim can-
not be based on a claim that an identifiable employment policy discriminates
against a more senior “subgroup” of employees over the age of 40. (See
Schechner v. KPIX-TV (N.D. Cal., Jan. 13, 2011, No. C 08–05049 MHP)
2011 WL 109144 *4 (Schechner) [neither Ninth Circuit nor California courts
have decided the issue].) Rather, both courts pointed to the fact that the
plaintiffs focused on subgroups within the protected over-40 age group as a

41
unique feature of the cases that underscored the necessity of a rigorous exam-
ination of the evidence, and particularly the statistical evidence. (See Carter,
supra, 122 Cal.App.4th at p. 1321; Katz, supra, 229 F.3d at p. 835.)
Defendants do not claim the contrary, but cite two district court cases,
one of them being Schechner, that have ruled a disparate impact claim can-
not be based on asserted impact on a subgroup of the protected age class.
In Schechner, the two plaintiffs were laid off as part of a reduction-in-
force (RIF) in which five “on-air” reporters, ranging from 47 to 66 years of
age, were discharged. (Schechner, supra, 2011 WL 109144 *1.) They sued
under the FEHA, advancing both disparate treatment and disparate impact
claims. The district court granted the employer’s motion for summary judg-
ment. (Ibid.) In support of their disparate impact claim, the plaintiffs sub-
mitted an expert’s report that showed “a disproportionate impact of the re-
duction-in-force on older workers. Within the subgroup of on-air employees,
[this] analysis demonstrated a high degree of statistical correlation between
those employees who were terminated and age.” (Id. at *3.)
The defendant maintained, however, that “notwithstanding the statisti-
cal correlation between termination and employee age, for purposes of a dis-
parate impact analysis, the only relevant question is whether the reduction-
in-force had a disproportionate impact on employees aged 40 or over com-
pared with employees under 40. In other words, even if a 66 year old em-
ployee such as Schechner [was] more likely to be terminated than a younger
employee, so long as 40+ year olds as a group [were] not significantly dispro-
portionately affected by the challenged conduct, [the] plaintiffs’ disparate im-
pact claim must fail.” (Schechner, supra, 2011 WL 109144 *4.)

42
 The district court agreed, stating “every” federal Court of Appeal that
had addressed the issue had “concluded that it is improper to distinguish be-
tween subgroups of employees over the age of 40 and that a disparate impact
analysis must compare employees aged 40 and over with those 39 and
younger.” (Schechner, supra, 2011 WL 109144 *4, citing to McDonnell Doug-
las Corp., supra, 191 F.3d at pp. 950–951, Lowe v. Commack Union Free
School Dist. (2d Cir.1989) 886 F.2d 1364, 1373 (Lowe)19, & qualifiedly citing
to Smith v. Tenn. Valley Auth. (6th Cir.1991) 924 F.2d 1059.) The district
court noted two First Circuit district court cases had ruled to the contrary but
concluded the Ninth Circuit was likely to follow the circuit court authority.
(Schechner, at *4, fn. 4.) “[T]he focus,” said the district court, “is on whether
older employees, as a protected group, are disproportionately affected by a fa-
cially neutral employment practice,” and “[t]here [was] no dispute that the re-
duction-in force did not have a statistically significant impact on on-air talent
(or on KPIX employees more broadly) aged 40 or older. Even though the five
terminated employees [] were all over the age of forty, the average age of
KPIX employees after the reduction-in-force remained well over 40.” (Id. at
*4-5.)
Rudwall v. Blackrock, Inc. (N.D.Cal. Feb. 28, 2011, No. C09–5176TEH)
2011 WL 767965, also involved a reduction-in force. The court granted sum-
mary judgment, including because it had “ ‘serious doubts’ ” the plaintiff had
“identified an affected group large enough to be statistically significant.” (Id.
at *10.) Citing to and following Schechner, the district court agreed that sta-
tistical evidence showing only that an older subset of a category of employees

Superseded on other grounds by statute as stated in Karlo v.
19

Pittsburgh Glass Works, LLC (W.D. Pa., March 31, 2014, No. 2:10-cv-1283)
2014 WL 1319595 *16.
43
within the defendant company was disproportionately impacted by the
layoffs, did not show that employees “aged 40 and over were disproportion-
ately impacted” because all the employees in this category at the time of the
reduction-in-force were older than 40 years old. (Ibid.) In other words, the
relevant statistical data failed to compare “the impact of . . . [the] termina-
tions on employees aged 40 and older to the impact on those aged 39 and
younger, and thus they fail[ed] to support a prima facie case of disparate im-
pact age discrimination.” (Id. at *11.)
However, in more recent years, there has been a shift in the federal le-
gal landscape as to whether a disparate impact age discrimination claim can
be based on an impact to an older subgroup within the protected 40 years of
age and older age class. While the Second and Eighth Circuits remain of the
view that a disparate impact claim cannot accommodate a subgroup analysis
(e.g., Hogan v. Metromail (S.D.N.Y. 2000) 107 F.Supp.2d 459), the Third and
Seventh Circuits have concluded otherwise (O’Brien v. Caterpillar Inc. (7th
Cir. 2018) 900 F.3d 923 (O’Brien); Karlo v. Pittsburgh Glass Works, LLC (3d
Cir. 2017) 849 F.3d 61 (Karlo)), and the Sixth Circuit has indicated it now
shares the view of the more recent circuit court cases. (See Cerjanec v. FCA
US, LLC (E.D.Mi. Aug. 6, 2018, No. 17-10619) 2018 WL 3729063 (Cer-
janec).20) As a consequence, the two First Circuit district court cases noted in

20 The district court, following Karlo, denied a motion to dismiss a
“subgroup” disparate impact age claims and subsequently certified the issue
for interlocutory appeal by the defendant. (Cerjanec, supra, 2018 WL
3729063 *4-5; Cerjanec v. FCA US, LLC (E.D.Mi. Sept. 4, 2018, No. 17-10319)
2018 WL 7152556.) The Sixth Circuit denied the defendant’s request for
leave to appeal stating, “Upon consideration of the petition and the response
thereto, we find that the issue before us appears to have been previously
resolved by O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996).”
(In re FCA US LLC (Sixth Cir. Feb. 8, 2019) No. 18-0106, order denying
permission to appeal (of which we take judicial notice on our own motion
44
Schechner are no longer outliers. (Finch v. Hercules Inc. (D. Del. 1994)
865 F.Supp. 1104; Graffam v. Scott Paper Co. (D. Maine 1994) 848 F.Supp. 1.)
Thus, at this juncture, it appears a majority of the federal circuit courts are of
the view that a disparate impact claim can be based on discriminatory impact
on an older subgroup within the protected 40-years-of-age-and-older class.
The reasoning of the earlier cases is best illustrated by the Eighth Cir-
cuit’s decision in McDonnell Douglas and the Second Circuit’s decision in
Lowe.
McDonnell Douglas involved a RIF. The EEOC, alleging the company
had engaged in a pattern or practice of terminating employees 55 years or
older because of their age, brought both disparate treatment and disparate
impact claims. (McDonnell Douglas, supra, 191 F.3d at p. 950.) The district
court dismissed the disparate impact claim and granted summary judgment
on the disparate treatment claim. The circuit court affirmed. (Ibid.)
With respect to its disparate impact claim, the EEOC alleged the com-
pany’s practice “of basing RIF decisions on considerations such as retirement
eligibility, merit raises, and salary had a disparate impact on a subgroup of
the protected class, namely, those employees aged 55 or older.” (McDonnell
Douglas, supra, 191 F.3d at p. 950.) In support of its claim, the EEOC relied
on statistical evidence showing the company laid off 13.7 percent of its em-
ployees aged 55 or older, compared to 5.4 percent of its employees under 55.
(Ibid.)
The circuit court rejected this effort for three reasons. First, “if such
claims were cognizable . . . a plaintiff could bring a disparate-impact claim

pursuant to Evidence Code sections 452, subdivisions (c), (d) & 459).) As we
shall discuss in detail, O’Connor is the principal case relied on by the Third
and Seventh Circuits in approving “sub-group” disparate impact age
discrimination claims under the ADEA.

45
despite the fact that the statistical evidence indicated that an employer’s RIF
criteria had a very favorable impact upon the entire protected group of em-
ployees aged 40 and older, compared to those employees outside the protected
group,” and the court did not believe “Congress could have intended such a
result.” (McDonnell Douglas, supra, 191 F.3d at p. 951.) Second, “if dispar-
ate-impact claims on behalf of subgroups were cognizable under the ADEA,
the consequence would be to require an employer engaging in a RIF to at-
tempt what might well be impossible: to achieve statistical parity among the
virtually infinite number of age subgroups in its work force. Adoption of such
a theory, moreover, might well have the anomalous result of forcing employ-
ers to take age into account in making layoff decisions, which is the very sort
of age-based decision-making that the statute proscribes.” (Ibid.) Third, “em-
ployment decisions motivated by factors other than age (such as retirement
eligibility, salary, or seniority), even when such factors correlate with age, do
not constitute age discrimination,” and the court, again, did not believe Con-
gress “intended to impose liability on employers who rely on such criteria just
because their use had a disparate impact on a subgroup.” (Ibid.)
In Lowe, the plaintiffs claimed a school district’s hiring practices ad-
versely affected applicants over the age of 50. (Lowe, supra, 886 F.2d at
p. 1372.) The Second Circuit rejected “recognition of ‘sub-groups’ ” because
“[u]nder this approach . . . any plaintiff can take his or her own age as the
lower end of a ‘sub-protected group’ and argue that said ‘sub-group’ is dispar-
ately impacted. If appellants’ approach were to be followed, an 85 year old
plaintiff could seek to prove a discrimination claim by showing that a hiring
practice caused a disparate impact on the ‘sub-group’ of those age 85 and
above, even though all those hired were in their late seventies.” (Id. at
p. 1373.) The court did not “believe that such a ‘disparity’ would support the

46
inference of discrimination that the disparate impact approach permits when
those outside a statutorily protected group are preferred over those included
in that group” and found “no support in the case law or in the ADEA for the
approach to disparate impact analysis” the plaintiffs advocated. (Ibid.) This
view was not endorsed by the entire panel and was criticized in a concurring
opinion that agreed only that the plaintiffs’ evidence was insufficient to prove
a disparate impact claim based on the posited subgroup. (Id. at pp. 1379-
1381 (conc. opn. of Pierce, J.).)
The reasoning of the more recent circuit court cases is best illustrated
by the Third Circuit’s decision in Karlo. This was also an RIF case, and
layoff decisions had been left to the discretion of certain management person-
nel, without guidelines or policies. (Karlo, supra, 849 F.3d at p. 66.) The
plaintiffs, all over the age of 50, asserted both disparate impact and disparate
treatment claims. (Id. at pp. 66-67.) The Third Circuit reversed a defense
summary judgment as to the disparate impact claim. (Id. at pp. 66-67, 86.)
The court began its analysis by discussing the “Supreme Court’s unani-
mous opinion in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308
. . . (1996), an ADEA disparate-treatment case. O’Connor clarified that the
ADEA proscribes age discrimination, not forty-and-over discrimination.”
(Karlo, supra, 849 F.3d at p. 70.) The plaintiff in O’Connor was fifty-six years
old when he was fired and was replaced with a younger worker who was over
the age of forty, and therefore within the class of individuals protected under
the ADEA. (Ibid.) The high court held the plaintiff nevertheless could state
an age discrimination claim. “The ADEA does not ban discrimination against
employees because they are aged 40 or older; it bans discrimination against
employees because of their age, but limits the protected class to those who
are 40 or older. The fact that one person in the protected class has lost out to

47
another person in the protected class is thus irrelevant, so long as he has lost
out because of his age.” (Ibid.)
The circuit court was of the view that the Supreme Court’s reasoning
“ineluctably leads” to the “conclusion that subgroup claims are cognizable. . . .
[¶] The key insight from O’Connor is that the forty-and-older line drawn by
[title 29 United States Code section] 631(a) constrains the ADEA’s general
scope; it does not modify or define the ADEA’s substantive prohibition
against ‘discriminat[ion] . . . because of such individual’s age.’ [Title 29
United States Code section] 623(a)(1). The ADEA protects against ‘age
discrimination [] as opposed to “40 or over” discrimination. . . .’ ” (Karlo,
supra, 849 F.3d at p. 71.)
The circuit court further pointed out “[t]he disparate-impact provision
uses the same operative phrase” as the disparate treatment provision “ ‘be-
cause of such individual’s age.’ [Title 29 United States Code section]
623(a)(2).” (Karlo, supra, 849 F.3d at p. 71.) Moreover, both disparate treat-
ment and disparate impact claims share the same ultimate issue—whether
the plaintiff was discriminated against because of his or her age. (Id. at
pp. 71-72.)
The circuit court also found the Supreme Court’s opinion in Connecticut
v. Teal (1982) 457 U.S. 440 (Teal), supportive. Teal was a Title VII disparate-
impact case, which the circuit court viewed as confirming that, “even under a
disparate-impact theory, the plain text of the statute is designed to protect
the rights of individual employees, not the rights of a class.” (Karlo, supra,
849 F.3d at p. 72.) In Teal, the high court rejected the defendant’s “ ‘bottom-
line’ ” defense that any discrimination in the first phase of its promotional
process (a written test) was mitigated by affirmative action efforts in the sec-
ond phase (selecting employees from within the pool of passing candidates).

48
(Ibid.) This ameliorative effort on behalf of other applicants did not justify
discriminating “against other members” of the protected class. (Ibid.) “The
ADEA, like Title VII,” said the circuit court, “protects individuals who are
members of a protected class, not a class itself.” (Ibid.)
The circuit court also pointed to the Teal majority’s response to the dis-
sent’s accusation it had confused the distinction between disparate impact
and disparate treatment:
“The fact remains . . . that irrespective of the form taken by the dis-
criminatory practice, an employer’s treatment of other members of the
plaintiffs’ group can be of little comfort to the victims of . . . discrimina-
tion. Title VII does not permit the victim of a facially discriminatory
policy to be told that he has not been wronged because other persons of
his or her race or sex were hired. That answer is no more satisfactory
when it is given to victims of a policy that is facially neutral but practi-
cally discriminatory. Every individual employee is protected against
both discriminatory treatment and practices that are fair in form, but
discriminatory in operation. [¶] . . . The same reasoning applies to this
case. The ADEA ‘does not permit the victim of a facially discriminatory
policy to be told that he has not been wronged because other persons’
aged forty or older were preferred. [Citation.] ‘That answer is no more
satisfactory when it is given to victims of a policy that is facially neu-
tral but practically discriminatory.’ ” (Karlo, supra, 849 F.3d at p. 73,
quoting Teal, supra, 457 U.S. at pp. 455-456.)

The circuit court next stated that its view was “supported by the
ADEA’s remedial purpose. Refusing to recognize subgroup claims would
deny redress for significantly discriminatory policies that affect employees
most in need of the ADEA’s protection.” (Karlo, supra, 849 F.3d at p. 74.) As
the court had stated in “the disparate-treatment context, . . . ‘[i]f no intra-age
group protection were provided by the ADEA, it would be of virtually no use
to persons at the upper ages of the protected class. . . .’ [Citation.] The same
rationale applies to the disparate-impact context. The older the employees
affected by a policy, the more confounding favoritism would be included in the

49
rigid forty-and-older sample. Thus, an impact on employees in their seven-
ties may be easier to average out of existence compared to an impact that also
affects younger employees. Mandating forty-and-older comparisons would
predominantly harm ‘those most in need of the statute’s protection.’ ” (Id. at
pp. 74-75, quoting Lowe, supra, 886 F.2d at p. 1379 (conc. opn. of Pierce,
J.).)21
Finally, the circuit court took issue with the justifications that had
been offered in the earlier cases for rejecting sub-group disparate impact
claims. It pointed out Lowe had been decided before O’Conner and thus, in
the circuit court’s view, had given “improper significance to the forty-and-
older line drawn by [title 29 United States Code section] 631(a), and fails to
compare the textual similarities between [title 29 United States Code sec-
tions] 623(a)(1) and . . . 623(a)(2).” (Karlo, supra, 849 F.3d at p. 75.) It also
believed Lowe’s evidentiary concern—that plaintiffs could create arbitrary
age groups to create statistical significance—is adequately dealt with by the
district court’s gate-keeping function. (Id. at p. 76.) Thus, the court “re-
ject[ed] the notion that the risk of gerrymandered evidence is so great that it
can override what the text of the statute otherwise permits. District courts
should, as in any other case, ensure that plaintiffs’ evidence is reliable under
Daubert and provides more than the ‘mere scintilla of evidence’ needed to
survive summary judgment.” (Id. at p. 78.) The court was accordingly “not
persuaded by Lowe’s legal or practical groundings.” (Ibid.)

In his concurring opinion in Lowe, Justice Pierce made many of the
21

same points as did the circuit court in Karlo. (Lowe, supra, 886 F.2d at
pp. 1379-1381(conc. opn. of Pierce, J.).)

50
 As for McDonnell Douglas, the Third Circuit viewed that court’s obser-
vation that the RIF overall had a favorable impact on the entire group of em-
ployees over the age of 40, as “no more than an endorsement of the bottom-
line defense” repudiated in Teal. (Karlo, supra, 849 F.3d at p. 78.) Nor did
the circuit court credit McDonnell’s concern that allowing subgroups might
require an employer to attempt statistical parity, resulting in age-based deci-
sions. “[I]t has always been the case that ‘a completely neutral practice will
inevitably have some disproportionate impact on one group or another,’ ” but
that “is precisely why deviating from statistical parity is not, by itself, enough
to incur disparate-impact liability.” (Id. at p. 79.) Rather, disparate impact
liability has always been limited “ ‘in key respects,’ ” including the require-
ment that the plaintiff identify a specific employment practice that causes
the disparity and must prove that the disparity is significant. (Id. at pp. 79-
80.) And even if a plaintiff makes out a prima facie case, the RFOA defense
“imposes a relatively light burden on employers.” (Id. at p. 80.) “If a com-
pany’s oldest employees are inadvertently disadvantaged by a merit-based
policy, for example, the RFOA defense is designed to address just such a sce-
nario.” (Ibid.)
In sum, while the Third Circuit court recognized disparate impact
“claims based on subgroups present unique challenges, the limitations appli-
cable to any other disparate-impact case—evidentiary gatekeeping, the prima
facie case, and affirmative defenses—are adequate safeguards.” (Karlo, su-
pra, 849 F.3d at p. 80.)
We find the reasoning of Karlo, and the other federal cases (as well as
the concurring opinion in Lowe) reaching the same conclusion, more persua-

51
sive than that of the earlier cases. We therefore conclude, for the reasons dis-
cussed in these cases, that disparate impact claims under the FEHA are not
“limited to forty-and-other comparisons.” (Karlo, supra, 849 F.2d at p. 80.)
In reaching this conclusion, we underscore, as did the Third Circuit, the
significant limitations on disparate impact liability that the United States
Supreme Court has emphasized, and which similarly, although not identi-
cally, apply to disparate impact liability under the FEHA.
The most significant difference between the ADEA and the FEHA in
this regard is that the FEHA’s “[b]usiness [n]ecessity” defense is not the
equivalent of the ADEA’s “reasonable factor other than age” defense. FEHA
regulations provide that: “Where an employer or other covered entity has a
facially neutral practice that has an adverse impact (i.e., is discriminatory in
effect), the employer or other covered entity must prove that there exists an
overriding legitimate business purpose such that the practice is necessary to
the safe and efficient operation of the business and the challenged practice ef-
fectively fulfills the business purpose it is supposed to serve. The practice
may still be impermissible where it is shown that there exists an alternative
practice that would accomplish the business purpose equally well with a
lesser discriminatory impact.” (Cal. Code Regs., tit. 2, § 11010; see generally
Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group
2020) ¶¶ 8:816, 8:830, pp. 8-115 to 8-116.) This “business necessity” defense
mirrors the same defense provided under Title VII. (42 USC § 2000e-
2(k)(1)(A)(i); see generally Cal. Practice Guide: Employment Litigation (The
Rutter Group 2020) ¶ 8:830, p. 8-116; Senn, Accommodating Good-Faith Em-
ployers in Title VII Disparate Impact Cases (2020) 94 Tul. L.Rev. 639, 648-
665 [discussing development of Title’s VII “business necessity” defense and
the ADEA’s defense].)

52
 This is not an insignificant difference, as the Supreme Court explained
in Smith, in holding for the first time that disparate impact claims can be
brought under the ADEA. While the high court concluded textual similarities
of the ADEA and Title VII, and the court’s prior recognition of disparate im-
pact claims under Title VII, indicated like claims can be brought under the
ADEA, the court went on to point out other dissimilarities made “clear . . .
the scope of disparate-impact liability under the ADEA is narrower than un-
der Title VII” (Smith, supra, 544 U.S. at p. 240), with the less stringent
RFOA defense under the ADEA being the most significant. (Id. at pp. 239-
241.) “Congress’ decision to limit the coverage of the ADEA by including the
RFOA provision is consistent with the fact that age, unlike race or other clas-
sifications protected by Title VII, not uncommonly has relevance to an indi-
vidual’s capacity to engage in certain types of employment. To be sure, Con-
gress recognized that this is not always the case, and that society may per-
ceive those differences to be larger or more consequential than they are in
fact. However, as Secretary Wirtz noted in his report, ‘certain circumstances
. . . unquestionably affect older workers more strongly, as a group, than they
do younger workers.’ Wirtz Report 11. Thus, it is not surprising that certain
employment criteria that are routinely used may be reasonable despite their
adverse impact on older workers as a group. Moreover, intentional discrimi-
nation on the basis of age has not occurred at the same levels as discrimina-
tion against those protected by Title VII. While the ADEA reflects Congress’
intent to give older workers employment opportunities whenever possible, the
RFOA provision reflects this historical difference.” (Id. at pp. 240-241; see
Karlo, supra, 849 F.3d at p. 80 [pointing out that even if a plaintiff makes out
a prima facie case of disparate impact age discrimination, “the RFOA defense
imposes a relatively light burden on employers”].)

53
 However, we do not think the difference between the RFOA defense un-
der the ADEA and the “[b]usiness [n]ecessity” defense under the FEHA is so
great that it renders the other stringent requirements adherent to disparate
impact claims insufficient protection against the perils the courts have identi-
fied in this context. In Carter and Katz, for example, where the plaintiffs
claimed disparate impact on older sub-groups within the protected 40-plus
years of age class, the courts had no difficulty discerning the evidentiary
shortcomings in the plaintiffs’ claims. (Carter, supra, 122 Cal.App.4th at
pp. 1321-1326 [holding, as a matter of law, that plaintiff failed to establish a
prima facie case of disparate impact age discrimination]; Katz, supra,
229 F.3d 831 at pp. 835-836 [affirming dismissal of disparate impact age dis-
crimination claim as a matter of law]; K.H., supra, 263 F.Supp.3d at pp. 796-
797 [granting summary judgment on disparate impact age discrimination
claim].)
We also emphasize we are not confronted here with evidentiary issues
concerning proffered statistical analyses and point out that cases like Carter
and Katz illustrate the rigor with which such evidence must be examined in
determining whether a plaintiff makes even a prima facie showing of dispar-
ate impact age discrimination. As the circuit court emphasized in Karlo, “not
just any disparity will make out the prima facie case [of disparate impact age
discrimination]; the disparity must be significant. See Watson, 487 U.S. at
995, . . . (‘[S]tatistical disparities must be sufficiently substantial that they
raise such an inference of causation.’); Teal, 457 U.S. at 446, . . . (‘[T]he fa-
cially neutral employment practice [must have] had a significantly discrimi-
natory impact.’); Wards Cove [Packing Co. v. Atonion (1989)], 490 U.S. [642,]
657, . . . (requiring a ‘significantly disparate impact’), [superseded by statute
on other grounds as stated in Cota v. Tucson Police Depart. (D.Ariz. 1992)

54
783 F.Supp. 458, 472, fn. 14]; Hazelwood Sch. Dist. v. United States [(1977)]
433 U.S. 299, 307–[3]08, . . . (requiring ‘gross statistical disparities’).” (Karlo,
supra, 849 F.3d at pp. 79–80; see Villafana, supra, 57 Cal.App.5th at pp.
1018-1020 [affirming dismissal of disparate impact sex and race discrimina-
tion claims where plaintiffs failed to allege proper comparison groups]; Ju-
maane, supra, 241 Cal.App.4th at pp. 1405-1407 [judgment notwithstanding
verdict should have been granted on disparate impact race discrimination
claim where plaintiff’s statistical evidence was inadequate]; Frank v. County
of Los Angeles (2007) 149 Cal.App.4th 805, 817-822 [reversing disparate im-
pact race discrimination judgment where statistical evidence insufficient].)
Thus, while we conclude a disparate impact age discrimination claim
under the FEHA is not foreclosed solely because it is predicated on alleged
discriminatory impact on a sub-group within the protected age class, we ex-
press no opinion as to whether plaintiffs will be able to sufficiently plead such
a claim, let alone raise a triable issue of age discrimination or prove such a
claim.
DISPOSITION
The judgment of dismissal is reversed and the case remanded for fur-
ther proceedings consistent with this opinion. Appellants to recover costs on
appeal.

55
 _________________________
Banke, J.

We concur:

_________________________
Margulies, Acting P.J.

_________________________
Sanchez, J.

A158696, Mahler et al v. Judicial Council of CA

56
Trial Court: San Francisco City and County Superior Court

Trial Judge: Hon. Ethan Shulman

Counsel:

Furth, Salem, Mason & Li LLP, Daniel S. Mason, Quentin L. Kopp, and
Thomas W. Jackson for Plaintiffs and Appellants.

Jones Day, Robert A. Naeve and Nathaniel P. Garrett for Defendants and
Respondents.

57