Acuna v. Smart & Final Stores CA2/3 ( 2021 )

Filed 3/17/21 Acuna v. Smart & Final Stores CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
LETICIA ACUNA et al., B293470
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC547645
v.
SMART & FINAL STORES LLC
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark V. Mooney, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis and Suzanne E.
Rand-Lewis for Plaintiffs and Appellants.
Jackson Lewis, Theresa M. Marchlewski, Ellen E. Cohen
and Dylan B. Carp for Defendants and Respondents.
_________________________
INTRODUCTION
Five plaintiffs jointly sued their employer Smart & Final
Stores LLC (S&F) and the assistant manager of the store where
they worked, Leslie Kirst, for discrimination, harassment, and
retaliation in violation of Government Code section 12900 et seq.
(FEHA), and other employment-related causes of action. The
litigation was contentious and involved many discovery disputes.
Ultimately, the trial court granted defendants’ motion for
summary adjudication of issues under section 437c of the Code
of Civil Procedure (section 437c), and plaintiffs dismissed their
remaining causes of action. Earlier, the court had granted
plaintiffs’ request to continue the hearing and motion to compel
depositions. Plaintiffs’ counsel halted the depositions before
completing them, however, citing defendants’ counsel’s bad
behavior, and again asked the court to continue or deny
defendants’ motion. The court declined, finding it was plaintiffs’
counsel who had acted in bad faith.
On appeal, plaintiffs primarily contend the trial court erred
when it did not continue or deny defendants’ motion under
section 437c, subdivision (h) or (i) (section 437c(h) or (i)) for
obstructing discovery; defendants’ separate statement of
undisputed facts was deficient and failed to demonstrate
plaintiffs could not establish their claims; and plaintiffs raised
triable issues of fact. They also contest the court’s earlier
sustaining of defendants’ demurrer to four causes of action.
Finding no prejudicial error, we affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
“Because this case comes before us after the trial court
granted a motion for summary [adjudication], we take the facts
from the record that was before the trial court when it ruled on
that motion.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
2
1028, 1037 (Yanowitz).) In accordance with our standard of
review, “[w]e liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” (Ibid.)
1. Plaintiffs’ employment
S&F hired Leticia Acuna, Brett Basler, Leticia Berganza,
Rodrigo Gerber, and Arlene Ibal (collectively, plaintiffs) at
different times as part-time employees at various stores. Acuna,
Berganza, and Ibal are female. Acuna and Berganza describe
themselves as Hispanic, and Berganza referred to Ibal as
Hispanic. Basler and Gerber are male. Basler identifies as
White, and Gerber describes his national origin as half Mexican
and half White.
In connection with their S&F employment applications,
each plaintiff signed a form acknowledging he or she had read
and understood the form’s statements, including that the
employee’s “employment relationship” with S&F was “of an
‘at will’ nature.” By signing, each plaintiff also acknowledged,
“I understand that nothing contained in this application or
the interview process is intended to create a contract between
the Company and myself for either continued employment or
for the providing of benefits.”
Plaintiffs eventually worked together at S&F store 437
in Palmdale under Kirst’s supervision. Allen Robinson was
the store manager.
2. Kirst’s management of store 437 and interactions
with plaintiffs
Kirst was the senior assistant store manager from the time
store 437 opened on April 14, 2009 until August 24, 2012. Store
437 opened after stores in Palmdale (where Kirst had worked)
3
and Lancaster closed and merged. Kirst primarily prepared
the schedules for the store staff. She understood the employees
from the two closed stores were given the opportunity to transfer
to store 437. She declared she had more employees at store 437
to schedule than she had when she worked at her previous store.
After plaintiffs began working at store 437, they received
fewer weekly work hours. Plaintiffs testified Kirst played
“favorites” when scheduling hours and giving opportunities or
promotions. Kirst “mainly” favored “young good-looking men,”
but also had favorite female employees.
Employees who were friendly with Kirst, did her favors,
or “kissed ass” got more hours. Plaintiffs also testified their
hours were cut after they complained about their schedules or
Kirst yelling at them.
According to Gerber, “[h]alf the store didn’t really like
[Kirst].” He described her as “very rude like she was even better
than everybody.” She generally was rude to everyone, “except
some people that she favored.” Basler also described Kirst as
“rude to everybody.”
Plaintiffs testified or declared Kirst: yelled at and talked
down to them about their work performance; made sexual
comments, talked about sex, grabbed male employees’ “buttocks,”
and pinched and slapped Berganza and Acuna each on the “butt”
one time; made derogatory comments about religion, the military,
Acuna’s and Berganza’s Spanish accents, and Hispanics;1 spoke
negatively about her daughter’s Mexican boyfriend; and told
employees not to speak Spanish at work.
1 We use the term “Hispanic” because that is the term
plaintiffs used in their depositions.
4
3. Plaintiffs’ group complaint to S&F
Plaintiffs and three other employees signed a written
complaint about Kirst and Robinson, dated August 20, 2012, that
Ibal and Gerber faxed to Sean Mahony, an S&F vice president.
Cindy Castro, a human resources manager, received the fax.
The complaint stated, “[W]e are very dissatisfied with our
unequal treatment by Leslie Kirst. Many of us have been
discriminated against, treated unfairly, harassed, dealt with
the inequality in the distribution of hours given, her unfair
promotions towards others, and her constant criticisms by her
part.” The complainants also stated they were “dealing with
[an] unfair and hostile working environment,” and that human
resources and Robinson had done nothing to resolve the issues.
On August 27, 2012, Kirst was transferred to a different
S&F store. Castro and fellow S&F human resources manager
Sharon Quigley went to store 437 to investigate the complaint.
Between the two of them, they interviewed plaintiffs and others
on September 13, 2012, and October 9, 2012.
Gerber, Acuna, Berganza, and Ibal testified their work
conditions improved after Kirst’s transfer. Berganza was
promoted in December 2012. Basler took military leave in
mid-October 2012. He sought to return to store 437 in April
2013, but S&F did not call him in to work.
4. Plaintiffs’ complaints to DFEH
On July 26, 2013, plaintiffs filed complaints of
discrimination with the Department of Fair Employment
and Housing (DFEH) and received immediate right-to-sue
authorizations. Each DFEH complaint alleged the plaintiff
experienced “Discrimination, Harassment, Retaliation” because
of his or her “Sex-Gender, Other Retaliation,” and as a result
5
was “Denied a work environment free of discrimination and/or
retaliation, Other Retaliation for requesting protection from
harassment and hostile work environment and any and all basis
under the law.”
5. Plaintiffs sue S&F and Kirst
On June 6, 2014, plaintiffs jointly filed their original
complaint against S&F and Kirst. Plaintiffs’ 99-page operative
fourth amended complaint (FAC)—filed on March 8, 2016, after
several demurrers—alleges 10 causes of action, nine of which
are relevant: breach of contract and breach of the covenant of
good faith and fair dealing against S&F; intentional infliction of
emotional distress against both defendants; discrimination and
retaliation in violation of FEHA against S&F and harassment in
violation of FEHA against both defendants; violation of Military
and Veterans Code section 394 by Basler only against both
defendants; and violation of Labor Code section 512 and Wage
Order 2-2001 for failure to provide rest breaks and meal periods,
and Labor Code section 1198.5 for failure to provide personnel
records against S&F.
Earlier, the trial court had sustained without leave to
amend defendants’ demurrer to causes of action alleged in
the second amended complaint (SAC) for wrongful conduct in
violation of public policy, fraud, negligent misrepresentation,
and concealment.
Generally, plaintiffs’ FAC alleges Kirst created a “hostile
and harassing work environment” by verbally abusing them;
making overt sexual comments and inappropriately touching
male employees; making derogatory comments about religion;
telling employees they could not speak Spanish at work and
yelling at them if they did; and making derogatory comments
6
about military service. Plaintiffs also alleged Kirst discriminated
and retaliated against them by cutting their work hours while
giving more hours to employees who were her “friends,” and by
not offering them open positions that she gave to her “friends.”
In March 2016, defendants filed a motion for summary
judgment or, in the alternative, summary adjudication of issues.
After defendants answered the FAC in April 2016, plaintiffs
served deposition notices with requests for production of
documents for the person most knowledgeable (PMK) at S&F,
Kirst, S&F management personnel Ginny Diaz, Castro, and
Quigley, and defense counsel. Defendants objected on various
grounds.
Plaintiffs then opposed the summary judgment motion
primarily on the ground defendants had prevented them from
obtaining facts essential to their opposition by refusing to
produce witnesses and related documents for those depositions,
requiring the court to deny or continue the motion under sections
437c(h) and (i). On June 24, 2016, the trial court continued
defendants’ motion and granted plaintiffs’ motion to compel. The
court ordered the depositions to take place on July 7, 8, and 9,
2016. The court vacated the trial and final status conference
dates and set a trial setting conference for September 30, 2016.
Another discovery dispute erupted. This time, defendants’
witnesses appeared for their depositions, but plaintiffs’ counsel
suspended two of them—Kirst’s and Castro’s—and ordered
defendants’ counsel to leave her office, so Diaz’s deposition
could not proceed. Plaintiffs’ counsel deposed Quigley and
another witness, but reserved her “right” to reconvene them.
Both counsel accused the other of acting improperly during
the depositions. Plaintiffs moved for sanctions and an order to
7
compel the depositions to take place in the court’s jury room
before a discovery referee. Plaintiffs based the motion on earlier
litigated discovery issues, defense counsel’s alleged “[p]hysical
aggression” during the depositions, and defendants’ alleged delay
in producing relevant documents. Plaintiffs’ counsel declared
defendants’ counsel reached across the table to grab documents
from her and made improper objections.
On August 8, 2016, the court heard plaintiffs’ motion.
The court found defense counsel’s grabbing of documents was
“no reason to adjourn a deposition.” The court chastised
plaintiffs’ counsel: “You had a chance and opted to prematurely
suspend the deposition.” Based on its reading of the deposition
transcripts, the court concluded plaintiffs’ counsel’s “suspending
the deposition[s] summarily” “was done in bad faith.” Finding
no “basis to reconvene any of the[ ] depositions,” the court denied
plaintiffs’ motion.
Plaintiffs filed their second opposition to defendants’
motion on October 24, 2016. Plaintiffs again primarily based
their opposition on sections 437c(h) and (i). They argued the
trial court should deny or continue the motion because they were
unable to obtain necessary facts and evidence. Plaintiffs claimed
they needed to reconvene the July depositions, and defendants
had refused to produce witnesses or documents in response to
a second set of six depositions plaintiffs’ counsel noticed on
July 18 to take place August 2 and 3. Plaintiffs also argued that
defendants’ “lack of evidence” motion—which relied on plaintiffs’
deposition testimony—failed to establish plaintiffs’ “unequivocal”
lack of proof of their claims and inability to obtain proof; and
that defendants’ separate statement was defective, containing
“only legal conclusions, hearsay statements and argument.”
8
Plaintiffs’ opposing separate statement disputed every
one of defendants’ proposed undisputed facts, citing the same
evidence for each. Plaintiffs filed evidentiary objections to
defendants’ declarations and attached exhibits.
In reply, defendants argued plaintiffs’ separate statement
failed to create a triable issue of material fact. They argued
plaintiffs’ cited evidence “merely” reiterated the complaint’s
allegations and contained “vague, factual and legal conclusions,”
not admissible evidence. Nor did plaintiffs establish their
declarations were based on their personal knowledge.
Defendants filed 102 evidentiary objections to plaintiffs’ and
their counsel’s declarations. Defendants also argued plaintiffs’
separate statement did not comply with California Rules of
Court, rule 3.1350: they failed to explain why the facts were
disputed and cited to paragraphs in their declarations instead
of specific page and line numbers.
The trial court heard defendants’ motion—which they
clarified was for summary adjudication—on November 7, 2016.
The court noted it already had given plaintiffs the opportunity
to take additional discovery. As the undisputed facts were based
on plaintiffs’ own deposition testimony, the court did not think
additional discovery would assist them in demonstrating
those facts were in dispute. The court found plaintiffs had
not sufficiently specified how additional discovery would help
them oppose the motion.
The court also found defendants’ separate statement
sufficient under the rules2 and Code of Civil Procedure. It
2 All references to rules are to the California Rules of Court.
9
concluded there was a basis for defendants’ motion, they
articulated their legal position, and the issues were set forth
properly and supported by competent evidence. The court found
plaintiffs’ opposing separate statement, however, was not
compliant. The court ruled that, even if it were to allow plaintiffs
to submit a new one, “each of [plaintiffs’] declarations [is]
defective and none of them even contain[s], for the most part,
the material that counsel indicates would dispute these issues.
So the separate statement is as if I did not get an opposing
separate statement at all.” The court then granted the motion
for summary adjudication on each cause of action listed above
on specified grounds. The court also overruled all of plaintiffs’
evidentiary objections.
Judgment was entered for defendants after plaintiffs
dismissed their remaining causes of action. Plaintiffs timely
appealed.3
DISCUSSION
Plaintiffs assert several grounds—both procedural and
substantive—that they contend required the trial court to deny
defendants’ motion for summary adjudication. Plaintiffs also
contend the court improperly sustained defendants’ demurrer
to their SAC. We review the trial court’s decisions to grant
defendants’ motion and to sustain their demurrer de novo
(Yanowitz, supra, 36 Cal.4th at p. 1037; McCall v. PacifiCare
of Cal., Inc. (2001) 25 Cal.4th 412, 415), but review plaintiffs’
claimed procedural errors for abuse of discretion (e.g., Rodriguez
v. Oto (2013) 212 Cal.App.4th 1020, 1038 (Rodriguez)).
3 Plaintiffs filed a joint opening brief but no reply brief.
10
Our de novo review does not absolve plaintiffs of their
burden to show error, however. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564 (Denham) [judgment is presumed
correct]; Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 301
(Abdulkadhim).) “ ‘ “As with an appeal from any judgment, it is
the appellant’s responsibility to affirmatively demonstrate error
and, therefore, to point out the triable issues the appellant
claims are present by citation to the record and any supporting
authority. In other words, review is limited to issues which have
been adequately raised and briefed.” ’ ” (Abdulkadhim, at p. 301;
Lonely Maiden Productions, LLC v. GoldenTree Asset
Management, LP (2011) 201 Cal.App.4th 368, 384 [declining
“[t]acit[ ]” invitation to “comb through the record in search of
error”].)
1. The court did not abuse its discretion when it refused
to deny or continue the motion for discovery abuse
The statutory scheme governing summary judgment
includes safeguards to permit the opposing party to take more
discovery to obtain facts needed to oppose the motion. (§ 437c(h).)
Upon a proper showing by affidavits, the court must order
a continuance to allow time for the additional discovery, deny
the motion, or “make any other order as may be just.” (Ibid.)
The required affidavits must show: (1) the facts to be
obtained are essential to opposing the motion; (2) there is reason
to believe those facts may exist; and (3) the reason more time is
needed to obtain these facts. (Lerma v. County of Orange (2004)
120 Cal.App.4th 709, 715.) “The party seeking the continuance
must justify the need, by detailing both the particular essential
facts that may exist and the specific reasons why they cannot
then be presented.” (Id. at p. 716.)
11
The determination whether to grant the request is vested
in the trial court’s discretion and will not be disturbed on appeal
unless an abuse of discretion appears. (Rodriguez, supra, 212
Cal.App.4th at p. 1038.) “[T]he court may properly consider
the extent to which the requesting party’s failure to secure the
contemplated evidence more seasonably results from a lack of
diligence on his part.” (Ibid.) “The statute does not provide for
an unlimited number of continuances.” (Roth v. Rhodes (1994)
25 Cal.App.4th 530, 547.)
Plaintiffs contend the trial court abused its discretion
because their counsel provided the required summary of facts
and evidence essential to their opposition, through declaration
and oral argument, and established defendants purposefully
obstructed discovery of those necessary facts and evidence.
We do not agree.
First, the trial court already had continued the motion to
allow plaintiffs to take the depositions of Kirst, Castro, Quigley,
Diaz, and another employee. Plaintiffs’ counsel squandered
that opportunity by suspending two depositions, preventing
a third by ordering counsel to leave the office, and concluding
two others despite apparently having more questions for the
witnesses. Yet, plaintiffs again contended they were entitled
to take those depositions, ignoring the court’s earlier explicit
ruling that plaintiffs’ counsel had acted in bad faith and provided
no basis to reconvene any of the depositions. Thus, plaintiffs’
inability to discover the facts they claimed they needed from
those witnesses was the result of their own delay when they
opted to terminate the depositions.
Plaintiffs also argued defendants prevented them from
obtaining facts and evidence through the new depositions they
12
had noticed, with document requests, to take place in early
August 2016.4 Defendants’ counsel objected to those deposition
notices and refused to produce the witnesses and documents
because the original discovery cut-off date of July 5, 2016,
had passed. Plaintiffs’ counsel argued the court’s vacation
of the trial date eliminated the discovery cut-off date.
The trial court found plaintiffs did not set forth with
sufficient particularity the essential facts they would obtain
from these new depositions and how they would help plaintiffs
demonstrate triable issues of fact. Plaintiffs’ attorney declared
the testimony and documents,
“will establish the hostile work environment in
which Plaintiffs were required to work, reports
to Defendant[s] regarding the issues and
Defendant[s’] failure to investigate, in addition
to the harassment, discrimination and
retaliation Plaintiffs faced, and Defendants[’]
failure to properly investigate and resolve
same. . . . This testimony is crucial to
Plaintiffs’ opposition as it will create triable
issues of material fact by contradicting
Defendants’ assertion that Plaintiffs were
not subject to harassment, discrimination,
retaliation, or a hostile work environment.”
4 Plaintiffs noticed the depositions of five of Kirst’s
supervisors/directors (including Robinson, Mahony, and Jeff
Bloks), a male employee Kirst allegedly sexually harassed
(plaintiffs’ coworker), and a second PMK.
13
We agree with the trial court that plaintiffs did not
sufficiently describe the particular essential facts they believed
they would obtain from this discovery. Instead, plaintiffs
described the conclusions they hoped to prove—that they were
subject to harassment, discrimination, retaliation, and a hostile
work environment. Although plaintiffs refer to some facts—e.g.,
reports to S&F about their work environment—the declaration
fails to explain how those facts are necessary to oppose
defendants’ motion. Plaintiffs know what they reported to
S&F, and the motion included plaintiffs’ deposition testimony
on that subject.
Nor did plaintiffs establish defendants’ objections were
improper. Under Code of Civil Procedure section 2024.020,
discovery must be completed by the 30th day “before the date
initially set for the trial of the action.” (Code Civ. Proc.,
§ 2024.020, subd. (a), italics added.) A “continuance or
postponement of the trial date” does not reopen discovery
proceedings. (Id., § 2024.020, subd. (b).) On a party’s motion,
the court “may grant leave to complete discovery proceedings,
or to have a motion concerning discovery heard, closer to the
initial trial date, or to reopen discovery after a new trial date
has been set.” (Id., § 2024.050, subd. (a).)
Here, the original discovery cut-off date was July 5, 2016.
On June 24, the court vacated the initial August 2016 trial date
to accommodate the depositions it ordered take place on July 7-9
and the continued hearing on defendants’ motion. But the court
did not vacate the discovery cut-off date nor say plaintiffs could
conduct additional discovery beyond that date. And, on August 8
when the court denied plaintiffs’ motion to compel the depositions
that had been scheduled for July 7-9, it did not grant them leave
14
to conduct depositions of other witnesses. Nor did plaintiffs move
the court for leave to reopen discovery.
Moreover, plaintiffs had until late October 2016 to file
their second opposition to defendants’ motion. Yet, they never
moved to compel the August 2016 depositions, nor did they
seek clarification from the court about the discovery cut-off date.
Thus, plaintiffs’ failure to obtain this discovery resulted from
their own lack of diligence.5
Plaintiffs’ earlier bad faith tactics, delay, and failure
to justify any need for the discovery with sufficient affidavits
support the court’s exercise of discretion to refuse to deny
or continue defendants’ motion under section 437c(h). Plaintiffs
did not establish good cause for a second continuance.
Plaintiffs’ motion to continue under section 437c(i) was
groundless as well. Under that statute, “[i]f, after granting
a continuance to allow specific additional discovery, the court
determines that the party seeking summary judgment has
unreasonably failed to allow the discovery to be conducted,
the court shall grant a continuance to permit the discovery to
go forward or deny the motion.” (§ 437c(i).) It was plaintiffs’
own bad faith conduct in terminating the depositions that left
them unable to conduct the depositions the court had ordered
after it continued the motion.
5 Indeed, plaintiffs were aware of most of these witnesses
long before July 2016. Gerber testified he saw Kirst grab his
coworker’s “butt”; Berganza testified Bloks was her supervisor;
Robinson is named in the FAC; and plaintiffs sent their August
2012 complaint to Mahony.
15
2. The trial court did not abuse its discretion in finding
defendants’ separate statement sufficient
a. Defendants’ separate statement complied with
the Code of Civil Procedure and rules but
plaintiffs’ statement did not
A party moving for summary adjudication must “include
a separate statement setting forth plainly and concisely all
material facts that the moving party contends are undisputed,”
with references to the evidence supporting each stated fact.
(§ 437c, subd. (b)(1).) The opposing party, in turn, must “include
a separate statement that responds to each of the material facts
contended by the moving party to be undisputed, indicating
if the opposing party agrees or disagrees that those facts are
undisputed.” ((§ 437c, subd. (b)(3).) For each disputed fact,
the separate statement must include a reference to the evidence
supporting the opposing party’s contention that the fact is
disputed. (Ibid.) Rule 3.1350(f)(2) requires, when the opposing
party “contends that a fact is disputed,” the separate statement
“must state . . . the nature of the dispute and describe the
evidence that supports the position that the fact is controverted.”
“Failure to comply with this requirement . . . may constitute
a sufficient ground, in the court’s discretion, for granting the
motion.” (§ 437c, subd. (b)(3).) Rule 3.1350 also requires the
parties’ citation to evidence in support of each material fact
or position that a fact is controverted “include reference to the
exhibit, title, page, and line numbers.” (Rule 3.1350(d)(3), (f)(2),
(f)(3).)
Plaintiffs contend the trial court’s “failure to strictly
construe [defendants’] moving papers, and refusal to require
[defendants] to cite page and line numbers in their separate
16
statement while ruling that [plaintiffs’] separate statement did
not comply” with the rules requires us to reverse. We disagree.
Plaintiffs assert defendants’ separate statement contained
the same defect as theirs—a failure to cite to page and line
numbers of exhibits. Plaintiffs are correct that defendants
referenced paragraph numbers, instead of page and line
numbers, in the declarations they cited as evidence of certain
material facts. That deficiency, however, does not compare
to plaintiffs’ failure to refer to page and line numbers in their
declarations.
Plaintiffs disputed every fact in defendants’ separate
statement. They cited the same three items of evidence to
support their contention that each fact was controverted:
paragraphs 2 through 4 of the relevant plaintiff’s declaration,
paragraphs 3 and 4 of plaintiffs’ counsel’s declaration, and
“Exhibit ‘A,’ ” the collection of each plaintiff’s supplemental
responses to S&F’s form employment interrogatories. Thus, for
example, plaintiffs asserted the same evidence that controverted
defendants’ stated fact that Basler “is male” also supported
plaintiffs’ contention that “Kirst granted [Basler’s] requests
to take various days off work to enlist in the military” was
controverted. Of course, this cannot be.
Indeed, the paragraphs plaintiffs cited from their
declarations span three or more pages, and exhibit A—cited
in its entirety to dispute each fact—covers 85 pages. Moreover,
paragraph 3 from each plaintiff’s declaration—itself more than
two pages long—essentially restates the complaint’s allegations,
covering facts relating to all of the plaintiffs’ claims. Plaintiffs’
17
responses to S&F’s form interrogatories do the same.6 Thus,
for each disputed fact, the court would have had to wade
through those pages and statements to determine what specific
statements purportedly demonstrated the particular fact was
controverted, and—as plaintiffs did not describe it—the nature
of the dispute.
In contrast, when defendants cited to paragraph numbers
from declarations in support of certain material facts,7 the cited
paragraphs were only a few lines each. More importantly, the
declarant covered a discrete subject or issue in each paragraph
of the declaration, such as laying a foundation to authenticate
an exhibit or describing a particular event. Thus, the trial court
could understand exactly what evidence defendants contended
supported their stated material facts. Accordingly, we see
no abuse of discretion in the court’s finding that defendants’
separate statement was sufficient but plaintiffs’ was not.
b. Defendants’ statement of material facts is sufficient
Plaintiffs also contend the trial court abused its discretion
by not denying defendants’ motion on the ground their separate
statement did not state material facts. Plaintiffs argue
defendants’ restatement of allegations in the complaint and
statements from plaintiffs’ deposition testimony are not material
6 Nor is plaintiffs’ counsel’s declaration specific. It argues
defendants’ motion improperly relies on plaintiffs’ allegations,
hearsay statements, and inaccurate and incomplete statements
from their depositions, and states their attached discovery
responses contain admissible evidence of their claims.
7 Defendants cited to the relevant page and line numbers
from the plaintiffs’ depositions.
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facts. We disagree. As the trial court stated, the complaint’s
allegations frame the case. Indeed, “[i]t is the allegations in
the complaint to which the summary judgment motion must
respond.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th
1242, 1258; Lackner v. North (2006) 135 Cal.App.4th 1188, 1201-
1202, fn. 5 [“the pleadings ‘delimit the scope of the issues’ to be
determined and ‘[t]he complaint measures the materiality of the
facts tendered in a defendant’s challenge to the plaintiff’s cause of
action’ ”].) Accordingly, defendants restated plaintiffs’ allegations
as undisputed material facts to demonstrate plaintiffs could not
establish a prima facie case even if those alleged facts were true.
The events plaintiffs testified occurred and their beliefs
about them also are material facts on which defendants could
support their motion. True, defendants include many discrete
facts taken from plaintiffs’ deposition testimony. But unlike
the moving party in Reeves v. Safeway Stores, Inc. (2004)
121 Cal.App.4th 95, 105-106, defendants did not frame the
undisputed material fact as the fact that one of the plaintiffs
testified to it. Rather, defendants stated the event or fact—
or the individual’s knowledge or belief about the event or fact—
and cited to that individual’s testimony about it as evidence.
(See ibid. [defendant’s undisputed material fact that two of its
employees “ ‘stated that Plaintiff followed them out of the store,
telling them that he had moved Sandy Juarez out of the way
by lightly/gently pushing her aside,’ ” was not a material fact,
but evidence of a material fact—plaintiff’s admission about the
confrontation].) Moreover, the plaintiff in Reeves controverted
the purported undisputed material fact through his declaration—
something plaintiffs failed to do here. (Id. at p. 106.) The Reeves
court thus concluded defendant had “attempt[ed] to circumvent
19
that conflict by stating the supposed ‘fact’ in an attributive form,”
given it was “indisputably true” the witness gave that testimony.
(Id. at pp. 105-106.)
c. Defendants’ reliance on Kirst’s declaration did
not require the trial court to deny their motion
Plaintiffs contend defendants’ reliance on Kirst’s
declaration to establish she did not discriminate against them
and lacked a discriminatory intent required the trial court
to deny their motion. Plaintiffs are wrong. Section 437c,
subdivision (e) gives the court discretion to deny a motion for
summary adjudication “if the only proof of a material fact offered
in support of the [motion] is an affidavit or declaration made
by an individual who was the sole witness to that fact; or if
a material fact is an individual’s state of mind, or lack thereof,
and that fact is sought to be established solely by the individual’s
affirmation thereof.” (Italics added.) Plaintiffs do not explain
how the trial court abused its discretion by refusing to deny
defendants’ motion under this subdivision. Moreover, defendants
also relied on plaintiffs’ deposition testimony to establish Kirst
did not discriminate against them or have a discriminatory
intent.
3. Defendants met their burden to show no triable issue
of fact existed and they were entitled to adjudication
in their favor on plaintiffs’ claims
a. Standard of review and process
On appeal from a summary adjudication, “we review
the record de novo, considering all the evidence set forth in the
moving and opposition papers except that to which objections
have been made and sustained.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.) “[W]e must view the evidence in
20
a light favorable to plaintiff[s] as the losing parties [citation],
liberally construing [their] evidentiary submission while
strictly scrutinizing defendants’ own showing, and resolving
any evidentiary doubts or ambiguities in plaintiff[s’] favor.”
(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
We make “an independent assessment of the correctness of the
trial court’s ruling, applying the same legal standard as the trial
court in determining whether there are any genuine issues of
material fact or whether the moving party is entitled to judgment
as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995)
32 Cal.App.4th 218, 222.)
A defendant is entitled to summary adjudication upon
a showing that a plaintiff’s cause of action has no merit. (§ 437c,
subds. (a), (f)(1).) “The defendant meets this burden with respect
to each cause of action by establishing undisputed facts that
negate one or more elements of the claim or state a complete
defense to the cause of action.” (Amis v. Greenberg Traurig LLP
(2015) 235 Cal.App.4th 331, 337; § 437c, subd. (p)(2).)
Alternatively, a defendant may meet its burden of showing
that an essential element of plaintiff’s claim cannot be
established by presenting evidence that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence. That
evidence may consist of the deposition testimony of the plaintiff’s
witnesses, the plaintiff’s factually devoid discovery responses,
or admissions by the plaintiff in deposition or in response to
requests for admission. (Amis, at pp. 337-338; see also Villa v.
McFerren (1995) 35 Cal.App.4th 733, 749 [plaintiff’s deposition
testimony may be used to shift the burden of proof and grant
21
a motion for summary judgment].)8 Once the defendant has
made such a showing, the burden shifts to the plaintiff to show
8 Plaintiffs contend defendants failed to meet their burden
by relying on plaintiffs’ deposition testimony. A defendant
may rely on a plaintiff’s admissions made at deposition to show
a claim cannot be proved. Whether a plaintiff’s deposition
testimony does so, of course, depends on what was said. (Villa v.
McFerren, supra, 35 Cal.App.4th at p. 749.) Deposition testimony
is evidence that is weighed and considered with other evidence.
(Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510,
1522.) Plaintiffs challenge defendants’ reliance on the deposition
excerpts only generally, arguing the cited testimony fails to
demonstrate “an unequivocal lack of proof and an inability to
reasonably obtain proof.” (Emphasis omitted.) They cite to
defendants’ separate statement in its entirety—more than 250
pages—in support of this contention and do not identify which
specific deposition excerpts are lacking or how the specific
testimony fails to demonstrate plaintiffs’ inability to establish
one or more elements of their claims. In essence, plaintiffs ask
this court “ ‘to make an independent, unassisted study of the
record in search of error.’ ” (Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115 (Guthrey).) This we will not do.
We thus do not consider this contention. (Abdulkadhim, supra,
53 Cal.App.5th at p. 301 [review is limited to issues adequately
briefed]; Guthrey, at p. 1115 [“It is the duty of counsel to refer
the reviewing court to the portion of the record which supports
appellant’s contentions on appeal. [Citation.] If no citation
‘is furnished on a particular point, the court may treat it as
waived.’ ”]; see also Bernard v. Hartford Fire Ins. Co. (1991) 226
Cal.App.3d 1203, 1205 [party has a duty to provide exact page
citations; block page reference precluded appellate court from
“adequately evaluat[ing] which facts the parties believe support
their position”].)
22
a triable issue of material fact exists. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 853.)
b. Plaintiffs’ evidentiary objections
Plaintiffs contend the trial court erroneously overruled
their objections to defendants’ supporting declarations and
attached exhibits. Those declarations include: Diaz, S&F’s labor
relations director and custodian of records for personnel files;
human resources managers Quigley and Castro; and Kirst.
Plaintiffs objected to the declarations in their entirety and to
virtually every line in them. The trial court overruled each of
plaintiffs’ 86 objections. Plaintiffs argue the trial court strictly
construed their evidence and liberally construed defendants’
declarations when it should have done the opposite.
Other than directing us to the Evidence Code, plaintiffs
do not explain how the court abused its discretion in overruling
specific objections, much less how the purported error was
prejudicial. They simply contend the trial court “refus[ed] to
apply the Evidence Code.” Citing to the Diaz, Castro, Quigley,
and Kirst declarations in their entirety, plaintiffs merely restate
the objections they made in the trial court: the declarations
“consisted of hearsay, were not within the personal knowledge
of the declarants, were irrelevant, required speculation, or were
improper legal opinions or conclusions.” Again, plaintiffs leave
it to this court to parse through each of their 86 evidentiary
objections and guess as to why they contend the statements
are hearsay and do not fall within a hearsay exception, are
not within the declarant’s personal knowledge, or are irrelevant,
or how they required speculation or constituted an improper
legal conclusion. Similarly, plaintiffs restate the objections they
made to the exhibits attached to the declarations as “hearsay,
23
unauthenticated, and lacking foundation”—again, without saying
why.
It is plaintiffs’ responsibility to support their contentions
of error by citation to the record, supporting authority, and
reasoned analysis. (Abdulkadhim, supra, 53 Cal.App.5th at
p. 301; City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266,
286-287 (City of Santa Maria) [reviewing court “may disregard
conclusory arguments that . . . fail to disclose the reasoning
by which the appellant[s] reached the conclusions” they want
the court to adopt].) Plaintiffs have not met their burden to
demonstrate the trial court’s overruling of their objections was
an abuse of discretion and reversible error. (Evid. Code, § 353
[evidentiary error must result in “miscarriage of justice” to justify
reversal]; Denham, supra, 2 Cal.3d at p. 564; Guthrey, supra,
63 Cal.App.4th at p. 1115.)
c. Plaintiffs fail to demonstrate the trial court erred
when it shifted the burden to them
Instead of addressing each cause of action the trial court
summarily adjudicated, plaintiffs argue defendants failed to shift
the burden to them at all. Again citing to defendants’ separate
statement in its entirety, plaintiffs argue the stated facts fail
“to show that Appellants could not establish each element of
Appellants’ prima facie case for each cause of action” defendants’
motion challenged. (Emphasis in original.) Plaintiffs
misapprehend defendants’ burden. Defendants had to
demonstrate plaintiffs could not establish one element of
each cause of action, not each element.
Plaintiffs merely argue defendants’ separate statement
was not supported by competent evidence, again invoking
their general objections that the supporting declarations and
24
exhibits—referenced in their entirety—were self-serving and
consisted of hearsay and legal conclusions. We already have said
plaintiffs failed to demonstrate the trial court erred in overruling
their evidentiary objections. Moreover, plaintiffs’ evidentiary
objections included no objections to the deposition testimony
excerpts on which defendants relied. And, although plaintiffs
declare that each plaintiff corrected his or her deposition
testimony, no plaintiff attached any corrected testimony or
indicated what specific uncorrected testimony defendants
relied on.9
Plaintiffs also cite cases for the familiar principle that,
on a motion for summary judgment, the trial court must strictly
construe the moving party’s evidence and draw all reasonable
inferences from the evidence in the light most favorable to the
opposing party. Plaintiffs then conclusorily assert the court erred
because it “disregarded the patent defects within [the] moving
papers, and supporting [d]eclarations, and improperly shifted
the burden of proof to [plaintiffs].”
Plaintiffs’ general objection to defendants’ evidence as
inadequate and defective does not demonstrate the trial court
erred in finding defendants presented sufficient evidence to shift
the burden to plaintiffs. Plaintiffs do not direct our attention
to any specific evidence or inferences we can draw from that
9 Plaintiffs declare the deposition excerpts defendants cite
in support of the stated material facts “misstate” their testimony,
“are not accurate and do not contain [their] complete answers,”
and do not include changes they made to the deposition
transcripts. They do not say what part of their testimony
is misstated, inaccurate, or incomplete.
25
evidence to argue how it does not establish plaintiffs’ inability
to prove their claims. (City of Santa Maria, supra, 211
Cal.App.4th at pp. 286-287 [“to demonstrate error, an appellant
must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record”].) Nor
do we agree with their assertion that the trial court assumed
defendants’ moving papers were sufficient. At the hearing on
the motion, the court explicitly stated it had looked at defendants’
motion and separate statement and found both sufficient and
supported by competent evidence.
As plaintiffs have failed to meet their burden to
affirmatively show error, we conclude the trial court properly
found defendants met their initial burden on summary
adjudication as to each of plaintiffs’ causes of action. (Denham,
supra, 2 Cal.3d at p. 564.)
d. Plaintiffs do not challenge the trial court’s ruling
that they in effect failed to provide an opposing
separate statement
After finding defendants presented sufficient evidence to
demonstrate plaintiffs’ causes of action at issue had no merit,
the trial court next had to determine if plaintiffs showed a triable
issue of material fact existed as to any of their claims. (Aguilar,
supra, 25 Cal.4th at p. 850.) The trial court’s minute order states
defendants’ motion “is granted on the grounds fully reflected in
the notes of the official court reporter.” The reporter’s transcript
in turn shows the court ruled, “The disputed separate statement
was not compliant with the rules of court. . . . Even if the court
were to permit a new separate statement . . . to be issued to
comply with the rules of court, nevertheless, each of those
declarations are defective and none of them even contain,
26
for the most part, the material that counsel indicates would
dispute these issues. So the separate statement is as if I did
not get an opposing separate statement at all. So the court
is going to grant the motion for summary adjudication . . . .”
Accordingly, the court found plaintiffs did not meet their
burden to demonstrate the existence of a triable issue of fact
because they failed to provide an adequate separate statement.
Nowhere in plaintiffs’ opening brief, however, do they contend
the trial court erred when it granted defendants’ motion after
treating plaintiffs’ separate statement “as if [it] did not get an
opposing separate statement at all.”10 Nor do they challenge
the trial court’s evidentiary ruling that their declarations were
10 As we have discussed, plaintiffs challenged the trial court’s
finding that defendants’ separate statement was sufficient when
it had found plaintiffs’ was not. Plaintiffs’ opening brief does
not contend the trial court abused its discretion by granting
summary adjudication based on plaintiffs’ failure to submit a
proper separate statement. When an opposing party fails to file
a responsive separate statement, the trial court has discretion
either to grant the motion for summary judgment or adjudication
based on the absence of the separate statement or to continue
the motion and allow the opposing party to file a proper separate
statement. (Batarse v. Service Employees Internat. Union, Local
1000 (2012) 209 Cal.App.4th 820, 827-828 [abuse of discretion
applies to decision to grant summary judgment “ ‘because the
opposing party failed to comply with the requirements for a
separate statement’ ”].) And, plaintiffs did not file a reply brief
to address the issue even after defendants argued they had
forfeited it.
27
defective.11 Plaintiffs thus have forfeited appellate review of
these issues. (Telish v. State Personnel Bd. (2015) 234
Cal.App.4th 1479, 1487, fn. 4 [“appellant’s failure to raise an
argument in the opening brief waives the issue on appeal”].)
“ ‘Even when our review on appeal “is de novo, it is limited
to issues which have been adequately raised and supported in
[the appellant’s opening] brief. [Citations.] Issues not raised
in an appellant’s brief are deemed waived or abandoned.” ’ ”
(Golden Door Properties, LLC v. County of San Diego (2020) 50
Cal.App.5th 467, 554-555.) The court’s finding that plaintiffs’
11 The trial court ruled plaintiffs’ declarations were defective
in response to defendants’ objection that the verifications
plaintiffs signed showed they lacked personal knowledge on the
matters stated in their declarations. Although each plaintiff
declared, “All facts contained herein are of my own personal
knowledge and if called upon to testify to same, I could
competently do so,” each verification each plaintiff signed under
penalty of perjury showed otherwise. In the verification, each
plaintiff declared, “I, or my attorney, have read and reviewed [the
declaration] . . . . I have authorized the preparation of the above
by my attorneys, and have provided them with assistance such
that [the] contents are based on my knowledge, or information
and belief.” (See § 437c, subd. (d) [“declarations shall be made
by a person on personal knowledge, shall set forth admissible
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the . . .
declarations”]; Lopez v. University Partners (1997) 54 Cal.App.4th
1117, 1124 [declarations based on information and belief “are
insufficient to satisfy the burden of either the moving or opposing
party on a motion for summary judgment or adjudication”].)
The verifications attached to plaintiffs’ interrogatory responses
include identical language.
28
separate statement was fatally deficient was the basis on which
it granted defendants’ motion after finding defendants met their
initial burden. Because plaintiffs—as the appellants—have
“the burden to affirmatively show the trial court erred,” plaintiffs’
“failure to address” the court’s ruling on its separate statement
“requires us to affirm the court’s order.” (Swain v. LaserAway
Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72; Golden Door,
at p. 558 [appellant’s “failure to address” court’s ruling in opening
brief “compels the conclusion the trial court’s ruling on that point
must be affirmed”]; see also State Water Resources Control Bd.
Cases (2006) 136 Cal.App.4th 674, 836 [“Where the trial court
based its judgment on the determination that petitioners failed
to exhaust their administrative remedies, petitioners could not
simply overcome the presumption of correctness by ignoring that
issue in their opening briefs.”].)
Accordingly, we affirm the November 7, 2016 order
granting defendants’ motion for summary adjudication.
4. The trial court did not err when it sustained
defendants’ demurrer
Defendants contend plaintiffs forfeited their challenge to
the court’s order sustaining defendants’ demurrer because they
did not include the trial court’s order or reporter’s transcript
in the appellate record. Because we review an order sustaining
a demurrer de novo (Blank v. Kirwan (1985) 39 Cal.3d 311, 318
(Blank)), and the record is otherwise complete, we can determine
if the court erred.
In our de novo review, we assume the truth of the
complaint’s properly pleaded or implied factual allegations, but
not contentions, deductions or conclusions of fact or law. (Blank,
supra, 39 Cal.3d at p. 318.) We determine if the alleged facts
29
are “sufficient to state a cause of action under any legal theory.”
(T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145,
162.) We review the trial court’s denial of leave to amend
for abuse of discretion. We decide whether there is a reasonable
possibility that the defect can be cured by amendment: if it can,
the trial court has abused its discretion and we reverse; if not,
there has been no abuse of discretion and we affirm. The burden
of proving that reasonable possibility is squarely on the plaintiff.
(Blank, at p. 318.)
a. The SAC’s fraud causes of action
The elements of a fraud cause of action are:
“ ‘(a) misrepresentation (false representation, concealment, or
nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent
to defraud, i.e., to induce reliance; (d) justifiable reliance; and
(e) resulting damage.’ ”12 (Lazar v. Superior Court (1996)
12 Cal.4th 631, 638.) “Fraud must be pled specifically―that is,
a plaintiff must plead facts that show with particularity the
elements of the cause of action.” (Glaski v. Bank of America
(2013) 218 Cal.App.4th 1079, 1090, citing Lazar, at pp. 638, 645.)
In other words, plaintiffs must plead facts that “ ‘ “show how,
when, where, to whom, and by what means the representations
were tendered.” ’ ” (Lazar, at p. 645.) Moreover, plaintiffs’
“burden in asserting a fraud claim against a corporate employer”
such as S&F is “even greater.” (Ibid.) Plaintiffs “must ‘allege
the names of the persons who made the allegedly fraudulent
12 The elements for negligent misrepresentation are the
same except the representation need only be made without
a reasonable ground for believing it to be true. (Chapman v.
Skype, Inc. (2013) 220 Cal.App.4th 217, 231.)
30
representations, their authority to speak, to whom they spoke,
what they said or wrote, and when it was said or written.’ ”
(Ibid.)
Plaintiffs’ SAC fails to meet this heightened pleading
standard. The SAC’s causes of action for intentional
misrepresentation, negligent misrepresentation, and concealment
all are based on the same alleged statements on which plaintiffs
based their contract causes of action: that S&F would give
them available work hours before giving them to less senior or
temporary employees, there would be open postings for other
positions, plaintiffs would have equal ability to apply for other
positions and promotions, and plaintiffs “would be allowed to
work regardless of their color, race and ethnicity, national origin,
religion and gender.” As to who made these representations
to plaintiffs, the SAC merely alleges “Defendants and Does 1
through 100, through their agents/or employees, names
unknown, manager level and higher” made the alleged
“promises.”
Plaintiffs did not allege who made these statements, much
less facts showing their authority to make the alleged promises.
Nor do plaintiffs allege whether the same person or different
people made the statements to each plaintiff—whom the SAC
alleges were hired at different times between 2001 to 2009.
Moreover, plaintiffs do not allege where the representations
were made, and they allege only general time periods as to when
they were made. For example, Berganza alleges S&F hired her
in May 2001. She then alleges she entered into an oral contract
with “Defendant” and describes the same promises on which
plaintiffs’ fraud claim is based. Each plaintiff makes similar
allegations.
31
These allegations are not sufficient to withstand demurrer.
(Cf. Tenet Healthsystem Desert, Inc. v. Blue Cross of California
(2016) 245 Cal.App.4th 821, 838-839 [fraud allegations
sufficiently pleaded where plaintiff alleged dates, time, and
names of individuals who initiated communications, as well
as facts providing a basis for the allegation that they were
authorized to act on defendant’s behalf].) The rule that less
specificity is required when “ ‘it appears from the nature of the
allegations that the defendant must necessarily possess full
information concerning the facts of the controversy’ ” does not
apply here. (Committee on Children’s Television, Inc. v. General
Foods Corp. (1983) 35 Cal.3d 197, 217.) Plaintiffs alleged the
representations were made directly to them orally. Therefore,
plaintiffs—rather than S&F—had superior knowledge as to
who made the alleged oral promises to them, when, and in what
context. The trial court did not err when it sustained defendants’
demurrer to the SAC’s causes of action for intentional and
negligent misrepresentation.
Plaintiffs’ cause of action for concealment fares no better.
To state a claim for fraud based on concealment, the defendant
must have intentionally concealed or suppressed a material fact
and must have been under a duty to disclose the fact to the
plaintiff. (Bank of America Corp. v. Superior Court (2011) 198
Cal.App.4th 862, 870.) The SAC did not allege what material
facts defendants failed to disclose. Rather, plaintiffs asserted
the same allegations for their concealment cause of action as they
pleaded in support of their misrepresentation causes of action.
Plaintiffs first allege defendants made the same promises as in
their other fraud claims without intending to fulfill them. They
then allege—again, as they did in the other two fraud claims—
32
“[a]s a result of the false representation of material terms
concerning Plaintiffs’ employment, such material facts were
not disclosed by Defendants.” The allegation is nonsensical.
One cannot both reveal a fact and conceal it. The court properly
sustained defendants’ demurrer on this cause of action.
b. The SAC’s cause of action for wrongful conduct
in violation of public policy
The SAC purported to plead a cause of action for “wrongful
conduct in violation of public policy.” Plaintiffs allege they
“were denied work” in violation of public policy. Plaintiffs cite
no authority that recognizes such a cause of action. Instead,
they cite authority recognizing a cause of action for wrongful
termination in violation of public policy. (Collier v. Superior
Court (1991) 228 Cal.App.3d 1117, 1121; see Ross v. RagingWire
Telecommunications, Inc. (2008) 42 Cal.4th 920, 931-932 (Ross)
[cause of action for wrongful termination in violation of public
policy is based on exception to at-will employment that “an
employer may not discharge an employee for a reason that
violates a fundamental public policy of the state”].) Construing
the SAC liberally to plead a cause of action for wrongful
termination in violation of public policy, at most, only Basler
could assert such a claim. (See Cornell v. Berkeley Tennis Club
(2017) 18 Cal.App.5th 908, 945 [dismissal of claim for wrongful
discharge in violation of public policy based on harassment
proper where employee did not allege harassment “resulted
in a constructive discharge or otherwise contributed to her
termination”].) The trial court thus did not err in dismissing
this claim as to Acuna, Berganza, Gerber, and Ibal.
We consider whether the SAC sufficiently alleged a cause
of action for wrongful termination in violation of public policy
33
as to Basler. To support this claim, the violated policy must be
supported by either constitutional or statutory provisions; must
be “public” in the sense that it inures to the benefit of the public
rather than serving merely the interests of the individual; must
have been articulated at the time of the discharge; and must be
“fundamental” and “substantial.” (Ross, supra, 42 Cal.4th at
p. 932.)
The SAC alleged S&F terminated Basler’s employment in
violation of fundamental public policies. It lists several statutes,
including FEHA and Military and Veterans Code section 394
(section 394), purportedly containing those policies. The SAC
alleged S&F terminated Basler after he took military leave “in
violation of the law.” Except for section 394, the SAC did not
allege how S&F violated any of the policies stated in the listed
statutes when it allegedly terminated Basler’s employment.13
The SAC sufficiently alleged how Basler’s wrongful termination
relates to section 394, however, by stating S&F violated that
statute’s prohibition against terminating employees because
they took military leave or because of their military status.14
13 The SAC alleged S&F violated FEHA, but the claim is
based on S&F’s alleged wrongful employment practices motivated
by “color, race and ethnicity, national origin, religion and
gender,” not military status.
14 Section 394 prohibits an employer from discriminating
against members of the military in the “terms, conditions, or
privileges” of their employment because of their membership or
service, and from terminating a military member’s employment
because of the performance of military duty or training. (§ 394,
subds. (a), (d).)
34
Nevertheless, assuming the SAC sufficiently alleged
a cause of action for wrongful termination in violation of
public policy based on section 394, Basler cannot demonstrate
prejudicial error. (Cal. Const., art. VI, § 13.) We have concluded
plaintiffs failed to establish the trial court erred when it granted
summary adjudication on plaintiffs’ claims—including, Basler’s
section 394 claim. Thus, as with all of their claims subject to
defendants’ motion, plaintiffs did not show the trial court erred
when it found defendants met their initial burden that Basler’s
section 394 claim had no merit. As a result, Basler’s claim for
wrongful termination in violation of public policy—based on
the same underlying conduct as his section 394 claim—could
not have survived defendants’ motion for summary adjudication.
The same evidence defendants presented in support of their
motion against Basler’s section 394 claim would have applied to
his wrongful termination claim. (Cf. Husman v. Toyota Motor
Credit Corp. (2017) 12 Cal.App.5th 1168, 1194, fn. 15 [wrongful
termination in violation of public policy against retaliation
failed where it was based on same allegations as failed
FEHA retaliation claim]; Featherstone v. Southern California
Permanente Medical Group. (2017) 10 Cal.App.5th 1150, 1169
[“if an employer did not violate FEHA, the employee’s claim for
wrongful termination in violation of public policy necessarily
fails”].) Likewise, plaintiffs’ responsive separate statement—that
the trial court found defective—would have been no different.
c. Plaintiffs failed to show the court abused its
discretion in denying leave to amend
Without a reporter’s transcript, we must presume plaintiffs
did not proffer additional facts at the demurrer hearing entitling
them to leave to amend. (See Foust v. San Jose Construction Co.,
35
Inc. (2011) 198 Cal.App.4th 181, 186-187 [describing situations
where prejudicial error could not be affirmatively shown without
reporter’s transcript].) Nor do they offer additional facts now.
We will not “use our imagination as to facts [plaintiffs] might
allege if given the opportunity.” (Gould v. Maryland Sound
Industries, Inc. (1995) 31 Cal.App.4th 1137, 1153.)
DISPOSITION
The judgment is affirmed. Respondents are to recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
36