Razon v. Southern California Permanente etc. CA2/7 ( 2020 )

Filed 12/3/20 Razon v. Southern California Permanente etc. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
REINIER RAZON, B294103
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC656671)
v.
ORDER MODIFYING
SOUTHERN CALIFORNIA OPINION
PERMANENTE MEDICAL (No change in the
GROUP, appellate judgment)
Defendant and
Respondent.
THE COURT:
It is ordered that the opinion filed herein on November 17,
2020 be modified as follows:
On page 1, delete counsel listing for Defendant and
Respondent and insert the following in its place:
Atkinson, Andelson, Loya, Ruud & Romo, Joseph E.
Pelochino, Jonathan D. Andrews; Andrews Lagasse Branch +
Bell, Jonathan D. Andrews, Joseph E. Pelochino and Ani
Mazmanyan for Defendant and Respondent.
There is no change in the appellate judgment.
____________________________________________________________
PERLUSS, P. J. FEUER, J. RICHARDSON, J.*
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
2
Filed 11/17/20 Razon v. Southern California Permanente etc. CA2/7 (unmodified
opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
REINIER RAZON, B294103
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC656671)
v.
SOUTHERN CALIFORNIA
PERMANENTE MEDICAL
GROUP,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Holly J. Fujie, Judge. Affirmed.
The Law Office of Caesar S. Natividad and Caesar S.
Natividad for Plaintiff and Appellant.
Andrews Lagasse Branch + Bell, Jonathan D. Andrews,
Joseph E. Pelochino and Ani Mazmanyan for Defendant and
Respondent.
________________
Reinier Razon sued his former employer Southern
California Permanente Medical Group (SCPMG) for disability
discrimination, failure to accommodate and failure to engage in
the interactive process in violation of the California Fair
Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.). The trial court granted SCPMG’s motion for
summary judgment and entered judgment in favor of SCPMG,
ruling Razon’s lawsuit was barred by his written release of all
claims relating to his employment with SCPMG. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Razon’s Employment and Partial Disability Leave
Razon began working for SCPMG at its Kaiser Sunset
location as a clinical laboratory scientist on a part-time basis in
January 2014. He was promoted to overnight manager in
January 2016, supervising a staff of clinical laboratory scientists
and phlebotomists. Part of Razon’s responsibilities included
interacting with union stewards representing the employees
Razon supervised.
On May 17, 2016 Razon was involved in a dispute with
Darren Wallace, the union steward assigned to the clinical
laboratory scientists under Razon’s supervision. According to
Razon, Wallace assaulted him. Razon was treated two days later
at the Kaiser emergency room for anxiety and diagnosed with
“emotional stress reaction,” which Razon believed was due to his
encounter with Wallace.1
1 Razon was diagnosed on May 30, 2016 as suffering from
“anxiety disorder, uncontrolled symptoms,” and on June 7, 2016
as suffering from “adjustment disorder with mixed anxiety and
depressed mood.”
2
On June 6, 2016 Razon was placed on a partial disability
leave of absence. The doctor’s note permitted Razon to return to
work but specifically advised he could not work at the Kaiser
Sunset main laboratory, which was where Wallace worked. No
other work restrictions were listed. Razon thereafter submitted a
series of doctor’s notes extending his partial disability leave
through August 2017. First, on August 9, 2016 the work
restriction was extended to the entire Kaiser Sunset facility, not
just the main laboratory, but otherwise authorized Razon’s
return to work. Next, on September 20, 2016 the doctor wrote,
“Patient is adamant that he will not return to work at Kaiser
Sunset due to safety concerns so anticipate this restriction may
become permanent.” Beginning with the doctor’s note of
November 17, 2016, the work restriction stated Razon could not
work at the same Kaiser facility as Wallace or be a supervisor.
That same restriction appeared in subsequent doctor’s notes
through August 2017.
Beginning in August 2016 Razon spoke repeatedly with
Leticia Cervantes, Kaiser’s transitional work coordinator, who
was responsible for evaluating Razon’s request to transfer from
the Kaiser Sunset facility where Wallace was assigned.
Cervantes explained to Razon that under Kaiser’s policies
temporary work restrictions are only accommodated within the
employee’s current medical center assignment. None of the
doctor’s notes submitted by Razon, however, ever indicated his
work restrictions had become permanent. Razon was advised to
apply directly for open positions at other facilities within the
Kaiser system.
3
2. Razon’s FEHA Lawsuit
On April 6, 2017 Razon sued SCPMG, alleging, as a result
of Wallace’s assault, he had developed a disability “consisting of
fear and inability to work at the Sunset Kaiser Permanent[e]
Hospital.” Razon further alleged he had requested that SCPMG
reassign him to another location in the Kaiser Permanente
system, but that request was denied. In addition, the complaint
continued, Razon’s several applications for employment as an
area laboratory manager or laboratory scientist at other Kaiser
Permanente locations were denied “because of his disability
and/or his worker’s compensation claim.” Razon asserted
three FEHA causes of action based on his “ongoing qualifying
disability of fear of working at the Kaiser Pemanent[e] Sunset
facility”: “discrimination based on disability”; “failure to provide a
reasonable accommodation”; and “failure to engage in an
interactive discussion to provide reasonable accommodations.”
SCPMG answered the complaint on May 26, 2017 with a
general denial and asserted 29 affirmative defenses.
3. Settlement of the Workers’ Compensation Claim and
Razon’s Voluntary Resignation from SCPMG
Razon filed a workers’ compensation claim in May 2016 for
injuries (stress and anxiety) arising from his encounter with
Wallace. That claim was pending when he filed his lawsuit
against SCPMG in April 2017.
In March 2018 Razon, acting through counsel, settled his
workers’ compensation claim for $45,000, as reflected in a
standard, preprinted compromise and release form signed by
Razon on March 14, 2018. As a condition of that settlement
Razon also signed on the same date a voluntary resignation form
4
letter provided to Razon’s attorney by the claims examiner acting
on behalf of SCPMG.
The voluntary resignation letter signed by Razon declares
his intention to voluntarily resign from SCPMG, to decline
modified or alternate employment with SCPMG or other Kaiser
entities and not to apply for reemployment at Kaiser. The
document also states it “releases Kaiser from any and all claims,
known or unknown, which may exist at the time of execution of
this Agreement, and waives any claim to monetary damages that
may arise from claims specifically to include, but not limited to,
all losses, liabilities, damages, and causes of action arising
directly or indirectly out of the employer-employee relationship.
This agreement specifically includes causes of action under
Title VII of the Civil Rights Act of 1964 (race, color, religion, sex
and national origin discrimination); the Americans with
Disabilities Act; 29 USC section 62 (age discrimination).
However, this list is expressly understood by the parities [sic] not
to be all-inclusive.”2
4. The Summary Judgment Motion and the Court’s Ruling
SCPMG moved on May 4, 2018 for summary judgment, or
in the alternative summary adjudication, arguing Razon did not
have a qualifying disability within the meaning of FEHA,
2 Immediately above the line for Razon’s signature the
document recited, “By signing this agreement I acknowledge that
I have read this agreement in its entirety, I understand it, I have
been given an opportunity to consult with or obtain
representation from an attorney in connection with this
Agreement, and consent to all of the agreement provisions are
given freely, voluntarily and with full knowledge and
understanding of the agreement’s contents.”
5
SCPMG had engaged in the interactive process with Razon and
provided him reasonable accommodations and the March 14,
2018 release signed by Razon barred all claims asserted in the
lawsuit.
With respect to the release contained in the voluntary
resignation letter, in his opposition papers Razon argued, in part,
SCPMG had forfeited the defense by failing to allege it as an
affirmative defense in its answer to the complaint. He also
asserted the release did not cover his FEHA claims, which were
known to SCPMG in March 2014 but not specifically identified in
the release, and the resignation letter and release were
unenforceable because they lacked independent consideration
and were, therefore, unconscionable.
After briefing and oral argument the court granted
SCPMG’s motion for summary judgment, ruling Razon’s action
was barred in its entirety by the release he had signed. In its
written order the court found the affirmative defense of waiver,
pleaded in SCPMG’s answer, was sufficient to permit SCPMG to
assert the release as a defense to the lawsuit. It also explained
the case law cited by Razon only requires a release executed as
part of a workers’ compensation settlement to make reference to
other civil claims generally; there is no requirement that claims
be specifically identified to be covered by the release. Finally, the
court found, by Razon’s own admission, his voluntary resignation
from SCPMG and the release of all employment-related claims
were components of the workers’ compensation settlement, thus
providing any necessary consideration.
Judgment in favor of SCPMG was entered October 2, 2018.
Razon filed a timely notice of appeal.
6
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only
when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c); see B.H. v. County of San Bernardino (2015) 62 Cal. 4th
168, 178.) A defendant may move for summary judgment on the
ground there is an affirmative defense to the action. (Code Civ.
Proc., § 437c, subds. (o)(2), (p)(2); see Hampton v. County of
San Diego (2015) 62 Cal. 4th 340, 343.) Once the defendant
establishes all elements of the affirmative defense, the burden
shifts to the plaintiff to show there is one or more triable issues of
material fact regarding the defense. (Shiver v. Laramee (2018)
24 Cal. App. 5th 395, 400; Jessen v. Mentor Corp. (2008)
158 Cal. App. 4th 1480, 1484-1485.)
We review a grant of summary judgment de novo (Samara
v. Matar (2018) 5 Cal. 5th 322, 338) and, viewing the evidence in
the light most favorable to the nonmoving party (Regents of
University of California v. Superior Court (2018) 4 Cal. 5th 607,
618), decide independently whether the facts not subject to
triable dispute warrant judgment for the moving party as a
matter of law. (Hampton v. County of San Diego, supra,
62 Cal.4th at p. 347; Schachter v. Citigroup, Inc. (2009)
47 Cal. 4th 610, 618.)
2. The March 2018 Release Barred Razon’s FEHA Claims
Although abandoning his claim the affirmative defense of
release was not properly pleaded in SCPMG’s answer, Razon
repeats the other challenges to the enforceability of the release he
advanced in the trial court. None has merit.
7
a. Voluntary or a condition of the settlement
Initially, in an argument we have some difficulty
understanding, Razon contends there is a triable issue of fact
whether his resignation was voluntary or a condition of the
workers’ compensation settlement. Razon’s argument presents a
false dichotomy: While in the abstract he perhaps did not want
to end his employment with SCPMG or Kaiser, Razon admitted
in his declaration in opposition to summary judgment that he
agreed to, and signed, the March 14, 2018 voluntary resignation
letter, which was one of the settlement documents he had
received from the attorney representing him in the workers’
compensation proceeding.3 There is no disputed issue of fact:
The evidence unequivocally established the resignation and
release were made voluntarily and a condition of the settlement.
b. Consideration
Next, Razon contends there is a triable issue of fact
whether the release was supported by consideration. This
argument is doubly flawed. First, consideration is not necessary
for a written release to be enforceable. (Civ. Code, § 1541 [“[a]n
obligation is extinguished by a release therefrom given to the
debtor or the released party by the creditor or releasing party,
3 In his declaration Razon also insisted he did not intend by
signing the letter to release his FEHA claims. That undisclosed
intent, however, is irrelevant to our interpretation of the release.
(Otay Land Co., LLC v. U.E. Limited, L.P. (2017) 15 Cal. App. 5th
806, 855 [“‘[a]lthough the intent of the parties determines the
meaning of the contract . . . , the relevant intent is “objective”—
that is, the objective intent as evidenced by the words of the
instrument, not a party’s subjective intent’”]; see Zissler v. Saville
(2018) 29 Cal. App. 5th 630, 644; G & W Warren’s, Inc. v. Dabney
(2017) 11 Cal. App. 5th 565, 575.)
8
upon a new consideration, or in writing, with or without new
consideration”].)4 Second, as discussed, Razon’s admission his
resignation from SCPMG and his release of employment-related
claims were a condition of the workers’ compensation settlement
establishes any necessary consideration. To be sure, as Razon
points out, the compromise and release form stated $45,000 was
being paid to settle Razon’s claims for the injuries at issue in the
workers’ compensation proceeding. Nonetheless, as Razon
acknowledged, the compromise and release of the workers’
compensation claims and the resignation and release of all other
employment-related claims were part of a single global
settlement package; and his execution of the voluntary letter of
resignation was a condition for resolution of the workers’
compensation claims. SCPMG, which self-insured for workers’
compensation claims, was not obligated to agree to pay Razon
$45,000 as provided in the form workers’ compensation
compromise and release. Its agreement to do so conferred a
benefit on Razon that Razon had no right to receive, one of the
statutory definitions of consideration. (See Civ. Code, § 1605
[“[a]ny benefit conferred, or agreed to be conferred, upon the
promisor, by any other person, to which the promisor is not
4 Razon asserts we should disregard this well-established
principle of law because SCPMG argued in the trial court the
release was supported by consideration without any reference to
Civil Code section 1541, and the order granting the motion was
based on a finding of consideration. However, we may affirm
summary judgment on a ground not relied upon by the trial court
(Code Civ. Proc., § 437c, subd. (m)(2)), and Razon fails to offer
any reason Civil Code section 1541 would not apply to the
March 14, 2018 release.
9
lawfully entitled, . . . as an inducement to the promisor, is a good
consideration for a promise”].)5
c. Mutual assent
Noting that SCPMG did not sign the voluntary resignation
letter, Razon contends there is a triable issue of fact whether
SCPMG consented to the resignation and release—that is,
whether there existed the mutual assent required for contract
formation.6 In determining the existence of mutual consent,
courts look to the objective, outward manifestations or
expressions of the parties, that is, “‘the reasonable meaning of
5 Although, as Razon notes, parol evidence is inadmissible to
vary or contradict the clear and unambiguous terms of a written,
integrated contract (Code Civ. Proc., § 1856, subd. (a); Wolf v.
Walt Disney Pictures & Television (2008) 162 Cal. App. 4th 1107,
1126), the parol evidence rule does not exclude evidence of “the
circumstances under which the agreement was made or to which
it relates, as defined in Section 1860.” (Code Civ. Proc., § 1856,
subd. (g).) Code of Civil Procedure section 1860, in turn,
provides, “For the proper construction of an instrument, the
circumstances under which it was made, including the situation
of the subject of the instrument, and of the parties to it, may also
be shown, so that the Judge be placed in the position of those
whose language he is to interpret.”
6 While mutual assent is necessary for an enforceable
settlement agreement that includes a release (see, e.g., Timney v.
Lin (2003) 106 Cal. App. 4th 1121, 1126; Weddington Productions,
Inc. v. Flick (1998) 60 Cal. App. 4th 793, 811), it is by no means
clear that, to be effective, a written release, which, as discussed,
is enforceable without consideration, needs the consent of a
released party expressly identified in the document. (Cf. Rest.2d
Contracts, § 284, subd. (1) [“[a] release is a writing providing that
a duty owed to the maker of the release is discharged
immediately or on the occurrence of a condition”].)
10
their words and acts, and not their unexpressed intentions or
understandings.’” (Bustamante v. Intuit, Inc. (2006)
141 Cal. App. 4th 199, 208.) Here, there is no question that Razon
gave his assent to the voluntary letter of resignation; he has
admitted he did. Nor is there any material issue of fact regarding
SCPMG’s consent. The evidence before the trial court on
summary judgment established the letter was provided by
SCPMG’s workers’ compensation claims representative to
Razon’s counsel during their negotiations of the workers’
compensation settlement. SCPMG’s representative required
Razon’s agreement to resign his employment and release his
employment-related claims as a condition of the settlement.
SCPMG and other Kaiser-related entities are expressly identified
as the beneficiaries of the resignation and release in the
document itself. The outward manifestation of SCPMG’s
approval of the resignation and release could not be any clearer.
d. Separate documents
Citing Jefferson v. Department of Youth Authority (2002)
28 Cal. 4th 299 (Jefferson) and Claxton v. Waters (2004)
34 Cal. 4th 367 (Claxton), Razon argues the release set forth in
his voluntary resignation letter is enforceable only if the letter
was attached to the preprinted compromise and release form
used to resolve Razon’s workers’ compensation claims. Neither
case establishes such a rule.
In Jefferson the Supreme Court held a compromise and
release executed on a preprinted form in a workers’ compensation
proceeding that expressly released “all claims and causes of
action” relating to an injury that also included an attachment
establishing the parties’ intent to include civil claims within the
scope of the release barred FEHA claims relating to the same
11
events that resulted in the injury. (Jefferson, supra, 28 Cal.4th
at p. 301.) The Court explained that at the time of the workers’
compensation settlement the plaintiff “had already filed a
complaint with the DFEH and therefore not only contemplated
the possibility of FEHA remedies but was also actively pursuing
those remedies. Therefore, when she released ‘all claims and
causes of action’ relating to the injury, she knew, or should have
known, that her FEHA claim would fall within the scope of that
broad language.” (Id. at p. 305.)
In Claxton the Supreme Court held an injured worker
executing the standard preprinted form used to settle workers’
compensation claims, without more, does not release causes of
action that are not exclusively subject to the workers’
compensation law or within the scope of that law. (Claxton,
supra, 34 Cal.4th at p. 370.) The Court further held that
evidence extrinsic to the language of the preprinted workers’
compensation compromise and release form could not be used to
establish the parties intended the preprinted release to extend to
claims outside the workers’ compensation system. (Id. at p. 377.)
Emphasizing that those additional causes of action “may be
the subject of a separate settlement and release” (Claxton, supra,
34 Cal.4th at p. 370), the Claxton Court referred to the facts in
Jefferson to explain why this rule was not unfair to the parties:
“It would be a simple matter for parties who have agreed to settle
not only workers’ compensation claims but also claims outside the
workers’ compensation system to execute another document
expressing that agreement. Thus, execution of the mandatory
standard preprinted compromise and release form would only
establish settlement of the workers’ compensation claims; the
intended settlement of claims outside the workers’ compensation
12
system would have to be reflected in a separate document.
(See Jefferson, supra, 28 Cal. 4th 299 [attachment to workers’
compensation form documented release of claims outside of
workers’ compensation]; Delaney [v. Superior Fast Freight (1993)]
14 Cal.App.4th [590,] 600 [parties should augment workers’
compensation form to expressly refer to release of claims outside
of workers’ compensation]”.) (Claxton, at p. 378.)
In an effort to fashion a rule that any intended release of
claims outside the workers’ compensation system must be
attached to the preprinted workers’ compensation form, not set
forth in a separate document, Razon emphasizes that in both
Jefferson and Claxton the general release language was, in fact,
included in such an attachment. While true, neither case—nor
any other authority cited by Razon—established attachment as a
requirement. To the contrary, the Claxton Court expressly
recognized release of the non-workers’ compensation claims could
be effected through a separate document, independent of the
workers’ compensation preprinted form. (Claxton, supra,
34 Cal.4th at pp. 370, 378.) That is exactly what occurred here.
e. Express reference to the FEHA claims
Finally, Razon argues the absence of any express reference
to his FEHA claims in the release creates a triable issue of fact
whether the lawsuit, pending at the time the release was
executed, was included within its scope. The Supreme Court in
Claxton expressly rejected the need for the specificity that Razon
suggests: “As is true with settlements in civil actions generally,
the separate document need not identify precise claims; it would
be sufficient to refer generally to causes of action outside the
13
workers’ compensation law ‘in clear and non-technical language.’”
(Claxon, supra, 34 Cal.4th at p. 378.)7
The release language in Razon’s voluntary resignation
letter clearly encompasses causes of action outside the workers’
compensation law and, even more specifically, all claims arising
directly or indirectly from his employment at SCPMG including
those involving disability discrimination. Absent any admissible
extrinsic evidence that Razon intended to exclude his FEHA
claims from this broad, all-inclusive language, interpretation of
the release remained a question of law. (See City of Hope
National Medical Center v. Genentech, Inc. (2008) 43 Cal. 4th 375,
395; Garcia v. Truck Ins. Exchange (1984) 36 Cal. 3d 426, 439
[“[i]t is solely a judicial function to interpret a written contract
unless the interpretation turns upon the credibility of extrinsic
evidence, even when conflicting inferences may be drawn from
uncontroverted evidence”]; Hanna v. Mercedes-Benz USA, LLC
(2019) 36 Cal. App. 5th 493, 507 [“in the absence of any conflict in
extrinsic evidence presented to clarify an ambiguity,” written
agreements are interpreted de novo].) The trial court properly
interpreted that language to bar Razon’s FEHA lawsuit.
7 Razon mistakenly quotes language from Lopez v. Sikkema
(1991) 229 Cal. App. 3d 31 and Delaney v. Superior Fast Freight,
supra, 14 Cal. App. 4th 590 to argue specific reference to his
pending FEHA case was required for the release to be effective.
Both of those cases were analyzing the sufficiency of extrinsic
evidence to establish the preprinted workers’ compensation form
release encompassed the plaintiff’s pending civil case. Both were
expressly disapproved on that point in Claxton, supra, 34 Cal.4th
at page 379, footnote 2.
14
DISPOSITION
The judgment is affirmed. SCPMG is to recover its costs on
appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
RICHARDSON, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
15