Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS00635
BUTZ, J.Plaintiff Shelley Bell sued her former employer, defendant Adelberg Associates Medical Group (AAMG), for employment discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), sexual harassment, breach of contract, sexual battery, and wrongful termination in violation of public policy. The trial court granted summary judgment in favor of AAMG.
Undesignated statutory references are to the Government Code.
Bell appeals, asserting that the trial court erred by (1) overlooking her claim for retaliatory termination, (2) summarily adjudicating her sexual harassment claim, and (3) ignoring her unfair business practices claims.
We shall affirm the judgment.
FACTUAL BACKGROUND
Bell’s record as an employee
After signing an at-will employment contract, Bell began working for AAMG as a records technician on November 6, 2000.
Throughout Bell’s tenure with AAMG, her supervisor, office manager Debby Ortega, repeatedly counseled Bell about her inefficiency and inappropriate behavior toward other AAMG employees.
In Bell’s first annual review in November 2001, Ortega noted that Bell showed some improvement but noted that Bell needed to (1) stop engaging staff in conversations when those staff were not on break, (2) stop using the telephone and Internet for personal use, and (3) make more effective use of her time.
On August 1, 2002, Bell complained to coworker Lloyd Toland that her paycheck was short that month. When Toland explained that he had deducted vacation and sick leave because she had not turned in all of her time sheets, Bell “exploded,” screaming at him with such intensity that he had to “put the phone on the desk until she hung up.” Bell wrote an e-mail to Toland, apologizing for the outburst. On August 5, 2002, Bell was reprimanded about her poor performance and inappropriate behavior and warned that the next disciplinary step would be dismissal.
A written reprimand dated August 5 and signed by Ortega appears in Bell’s personnel file. The listed reasons for the reprimand included Bell’s (1) failure to improve her attitude and coworker communications despite prior meetings on the subject; (2) failure to wear professional attire; (3) lack of professionalism; (4) failure to submit time sheets prior to the end of the pay period; and (5) use of loud voices and screaming on work premises or on the phone. The notice warned Bell that she would be terminated if she failed to adjust her behavior. While admitting that she and Ortega discussed the contents of the reprimand, Bell denied seeing it prior to her termination.
In her January 2003 review, which Bell countersigned, Ortega noted, “[t]he quality of [Bell’s] record reviews is expanding” but counseled Bell about her poor time management, lack of productivity, and improper interference with other staff. AAMG notified Bell that it would review her productivity and expected her to spend at least 6.5 hours per day completing record reviews.
Bell’s ongoing feud with Patenio
During Bell’s tenure with AAMG, she and another female employee, Miki Patenio, became embroiled in an ongoing inter-office spat that began shortly after Patenio started working there in August 2001.
On October 31, 2001, Bell had breast augmentation surgery, which she openly discussed in the office. According to Bell, while she was discussing the surgery with a coworker, Patenio came up behind her and “grabbed . . . and jiggled” Bell’s breasts, saying, “they feel real good and real to me.”
On November 25, 2002, Bell called Ortega. She said that she had entered Patenio’s work area and was standing behind her, when Patenio, who had been on the phone, turned around, reached out toward Bell’s breasts, and made a “squeaky” noise. Bell sent Patenio an e-mail (with a copy to Ortega), telling her not to “make reference to or touch [her] chest/breasts.”
Upon receiving a copy of Bell’s e-mail, Ortega sent Patenio an e-mail saying, “This conduct is not appropriate and should be immediately stopped.” Ortega also conducted an investigation of the incident, obtaining each employee’s version of what happened. Ortega admonished both women to refrain from further contact with each other, reminding them that they could communicate via e-mail.
Patenio maintained that Bell had invaded her workspace and was standing so close that when she turned around “[Bell’s] breasts were right in [her] face.”
On February 5, 2003, (all further calendar references are to that year) Patenio filed a written complaint against Bell, complaining that Bell had exposed Patenio as a lesbian in front of coworkers in the “break room” area. Ortega met with the employees who witnessed the incident and reported that they were uncomfortable hearing Bell’s remarks. The next day, Ortega gave Bell a written counseling memorandum, advising her that the break room comments were “totally unacceptable and inappropriate office conduct.” The memo quoted extensively from AAMG’s policy manual, which described the company’s policy against sexual harassment in the workplace. Ortega also rebuked Bell for discussing personal matters in front of other workers and instructed her to concentrate her attention to the job for which she was hired: record review. On February 8, because Bell continued to discuss personnel issues with staff, Ortega had another discussion with Bell and provided her with another written counseling memo.
On February 19, Bell e-mailed Ortega, complaining that Patenio had come into her work space the previous day and said, “oh I’ll wait till [sic] your [sic] done lubing up,” since Bell had been applying lip balm. Bell’s e-mail goes on to state: “[N]ow again I will ask, not have interaction with [Patenio] if she cannot keep her comments to work and work only. Now I asked this sometime ago and was told I have to deal with her. No I will not. After my write up ‘Shelley’ [referring to herself] is doing things different and will take care of this one way or another. And if management does not see the requests/actions as being a serious problem I will rethink my positional situation. Not only with me but there have been others with complaints serious ones I might add.”
Later that same day, Bell sent Ortega another e-mail, claiming that her previous complaints about Patenio had not been dealt with appropriately. Ortega replied that the only complaint she received had been investigated and if there were others, Bell should provide her with “names, dates, [and] incidents,” so that she could investigate any additional incidents that had occurred.
In her declaration opposing summary judgment, Bell stated that she interpreted Patenio’s “lip balm” comment as a reference to sexual activity. She also stated that she had previously reported Patenio for making “visual gestures to [Bell] by repeatedly placing her fingers in a ‘V’ shape against her mouth and waging [sic] her tongue in and through the ‘V’ in a gesture to simulate oral sex.” However, none of these assertions appear in any of Bell’s written correspondence with AAMG.
Bell’s termination
On February 21, two days after the last e-mail exchange, Ortega met with AAMG’s chief executive officer, Michael Adelberg. She outlined the ongoing problems with Bell and proposed terminating her. After listening to Ortega and reviewing pertinent e-mail correspondence, Adelberg made the decision to fire Bell. Adelberg saw a “sequence of attempts to get this problem corrected,” which had been unsuccessful. He believed that not only was Bell refusing to get the work done, but she was interfering with other employees. On the same day, AAMG terminated Bell on the asserted ground that she had ongoing productivity issues and refused to work with management.
After exhausting her administrative remedies, Bell filed the instant action against AAMG and Patenio in February 2004, asserting employment discrimination in violation of FEHA, sexual harassment, breach of the employment contract, sexual battery, and wrongful termination in violation of public policy.
AAMG filed a motion for summary judgment or in the alternative summary adjudication. The trial court granted summary judgment in AAMG’s favor and Bell appeals.
DISCUSSION
I. Summary Judgment--General Principles
Summary judgment is granted when the moving party establishes that there are no triable issues of any material fact. A summary judgment motion is directed to the issues framed by the pleadings. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213; Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536.) Further, the moving party must establish he or she is entitled to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) A claim has no merit if the defendant shows one or more of the elements of plaintiff’s cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (o)(1).) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff may not rely upon the mere allegations in her pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. (Harper v. Wausau Ins. Co. (1997) 56 Cal.App.4th 1079, 1085 (Harper).)
The pleadings set the boundaries of the issues to be resolved at summary judgment. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) “A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) “Thus, a plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing.” (Oakland Raiders, supra, 131 Cal.App.4th at p. 648.)
“An appellate court reviews the trial judge’s decision to grant summary judgment de novo.” (Harper, supra, 56 Cal.App.4th at p. 1085.) “We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond.” (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.) After identifying the issues framed by the pleadings, “[w]e then determine whether the moving party’s showing has established facts which justify a judgment in movant’s favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Ibid.)
The fact that we review the granting of a summary judgment de novo does not mean we engage in a ground-up analysis of the summary judgment motion, independent of the arguments made by the appellant in her opening brief. On review of a summary judgment, the appellant still bears the burden of showing that error occurred. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.)
II. Retaliation
Count one is entitled “Employment Discrimination and Violation of [FEHA].” The trial court treated this cause of action as strictly one for discrimination based on gender and summarily adjudicated it against Bell, citing a lack of evidence that “gender was the basis for [Bell’s] termination.” The court refused to address Bell’s claim that her firing was in retaliation for harassment complaints, stating: “No cause of action for retaliation has been alleged in the plaintiff’s complaint. The Court cannot consider an unpleaded issue in ruling on [a] motion for summary judgment or adjudication.”
Bell contends that the trial court erred by overlooking her separate cause of action for retaliatory termination. She argues that, contrary to the court’s ruling, the first cause of action encompassed a claim that AAMG retaliated against her for reporting sexual harassment by Patenio.
Bell does not contest the propriety of the trial court’s ruling summarily adjudicating her FEHA claim for “gender discrimination” against her and therefore this issue warrants no further discussion.
The key charging allegations of count one appear in paragraph 17 of the complaint, which asserts that AAMG “discriminated against [Bell] in violation of [section] 12940 . . . by engaging in a course of conduct described in the Statement of Facts. This course of conduct included retaliation against [Bell]because of [Bell’s] complaints against Defendants’ discriminatory treatment and/or unfair business practices; giving [Bell] pretextual and unfavorable performance reviews because of [Bell’s] complaints; giving [Bell] pretextual or untrue reasons for adverse employment actions and termination; and/or wrongfully demoting and discharging [Bell] from employment while retaining less qualified and/or non-minority employees.” (Italics added.)
Nowhere in the complaint does Bell identify herself as a “minority” employee. The complaint is silent as to Bell’s race or ethnic background.
Bell is hardly in a position to complain about the trial court having “overlooked” her retaliation claim. Retaliation against an employee for engaging in protected activity is a discrete violation of the FEHA. (§ 12940, subd. (h).) Bell’s one-size-fits-all complaint contains no separate cause of action for retaliation or retaliatory termination. Nonetheless, factual averments appear throughout the complaint that could be cobbled together to form a claim for retaliation. In the introductory portion of the complaint, Bell alleges that she “complained to [AAMG] about the misconduct of [Patenio],” “reported misconduct to [AAMG] regarding patient records and physician billing,” and was terminated because of these complaints. And within count one, Bell alleges that AAMG’s “course of conduct” included “retaliation against [Bell]because of [Bell’s] complaints against Defendants.”
These allegations barely satisfy the threshold for stating a cause of action for retaliatory termination. We do not condone Bell’s sloppy pleading, nor can we blame the trial court for treating her retaliation claim as unpleaded. However, because it is a close question as to whether a cause of action for retaliation has been adequately pleaded, we will address her claim of retaliation on the merits.
It is unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under” the FEHA. (§ 12940, subd. (h).) To establish a prima facie claim of retaliation under the FEHA, a plaintiff must show (1) she engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); accord, Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.)
Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces legitimate reasons for the adverse employment action, the presumption of retaliation “‘“‘drops out of the picture,’”’” and the burden shifts back to the employee to prove intentional retaliation. (Yanowitz, supra, 36 Cal.4th at p. 1042; see also Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.)
Bell’s complaints to Ortega about sexual harassment on the part of a coworker constituted a protected activity. (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2007) ¶¶ 7:33-7:34, p. 7-114 (hereafter Chin) [formally or informally complaining to a supervisor about what an employee believes to be an unlawful employment practice is a protected activity, regardless of whether the employee’s complaint is well founded].) Bell also experienced an adverse employment action when AAMG terminated her on February 21, 2003. Accordingly, Bell produced substantial evidence supporting the first two elements of her cause of action. However, a third essential element of a retaliation claim is the existence of a causal link between the protected activity and termination. (Yanowitz, supra, 36 Cal.4th at p. 1042.)
Here, AAMG produced a plethora of evidence that it had legitimate, nonretaliatory reasons for terminating Bell: She was repeatedly chastised for lack of productivity and disruptive contact with other employees. She was reprimanded for screaming at a coworker and was counseled to refrain from inappropriately using the telephone and Internet for personal use. Ortega frequently rebuked Bell for engaging in personal conversations with staff members who were not on break, about her poor time management, and failure to increase her productivity. Only two weeks prior to her termination, Bell was disciplined for violating office policy against sexual harassment by “outing” Patenio as a lesbian in front of other employees.
Finally, in Bell’s February 19 e-mail expressing unhappiness with how Ortega had been dealing with her complaints about Patenio, she also stated she would “take care of this one way or another,” which could reasonably be construed as a threat to take her quarrel with Patenio outside the office, in defiance of company policy.
Since strong, objectively valid reasons existed for her termination, the burden shifted to Bell to offer proof that these reasons were a pretext for retaliation. “[T]o meet an employer’s sufficient showing of a legitimate reason for discharge[,] the discharged employee, to avert summary judgment, must produce ‘substantial responsive evidence’ that the employer’s showing was untrue or pretextual.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; accord, Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant).) For this purpose, speculation cannot be regarded as “substantial responsive evidence.” (Martin, supra, at p. 1735.)
In support of her claim of pretext, Bell points out that only two days elapsed between her termination and her last e-mail complaint about Patenio. She also cites the following statement from Adelberg’s deposition testimony: “She [Ortega] showed me some e-mail correspondence. And when I saw that, I said, ‘Debby, never mind what your decision is. She’s fired.’”
Although timing may create an inference of pretext (Chin, supra, ¶ 7:831, p. 7-134), we reject the notion that timing alone can create a triable issue of pretext where, as here, the employee has a documented history of productivity and behavior problems and has repeatedly failed to heed warnings to improve her performance.
As for the Adelberg quote, Bell completely ignores a subsequent portion of the same testimony, which dispels any inference of retaliatory motive. When asked if the e-mail was the reason for his decision, Adelberg replied: “Well, it wasn’t e-mail correspondence in isolation by itself. But with respect to what had been going on before, I saw a pattern of repeated--what is the word--counseling, if you will, to discontinue one practice and start another. She would stop doing one thing and properly do what she wasn’t doing. There had been a sequence of attempts to get this problem corrected. And one of two things would then have emerged, as typically occurs. [¶] It’s not uncommon for us to encounter that an employee needs to be advised, do something differently than the way they’re doing. An employee either gets the message, returns to a reasonable work practice, or they don’t. In this case, the pattern was quite clear that correction wasn’t happening. [¶] But what the e-mail showed me was a resolute, determined flat-out refusal to comply. It wasn’t [a]gray zone; it was black and white. I saw in this that it was more than just refusal to get the work done. It looked to me like there would potentially be serious problems created for other employees. [¶] Either way, she came into that category of somebody who, having been asked to get back to work and stop interfering with other people’s work, one way or another, whatever the exacts, exact problem was, she wasn’t fixing. What was in the e-mail was a flat refusal to comply. There was no working with that. [¶] So I thought there was nothing further to be served by trying to do more and more of what clearly wasn’t working; and I made the decision then and there to fire her.” (Italics added.)
Adelberg’s testimony is thus wholly consistent with AAMG’s legitimate reasons for terminating Bell--a defiant attitude, persistent lack of productivity, and being a disruptive influence on other employees.
We conclude that Bell failed to meet her burden of showing that AAMG’s reasons for her termination were so implausible, inconsistent or weak that a reasonable trier of fact could find they were a pretext, used merely to veil an act of retaliation. (Hersant, supra, 57 Cal.App.4th at pp. 1005, 1009.)
III. Sexual Harassment
Bell argues that the trial court erred in granting AAMG’s motion for summary judgment on count two of her complaint, alleging sexual harassment. Since these assertions do not appear under a separate heading of her brief, they may be deemed forfeited. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1228-1229.) In any event, her claim is nonreviewable for other reasons, which follow.
The trial court rejected Bell’s argument that a triable issue of fact existed with regard to her harassment claim, stating: “Harassment cannot be occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature. . . . [¶] . . . [¶] The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 609-610.” The court noted that Bell “asserts a few incidents constituted harassment: the incident when Patenio touched her breasts, when [Bell] was discussing breast augmentation, the incident when Patenio made a gesture toward [Bell’s] breasts, the ‘lubing up’ comment, and in her opposition, [Bell] adds a gesture by Patenio which [Bell] understood to refer to oral sex.” The court discounted the “lubing up” comment, since it was unclear from the context whether it carried a sexual connotation. It found the remaining incidents too isolated, sporadic, and trivial to make out a prima facie case of sexual harassment, observing that Bell “did not miss any work, take a stress leave, file a worker’s compensation claim, or see a mental health professional about the alleged ‘harassment.’”
The trial court’s ruling was firmly based in the law. To maintain a viable claim for harassment in the workplace, “‘[t]he plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that [she] was actually offended.’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 588.)
Bell’s opening brief simply quotes general principles from hostile work environment cases and cites the incidents purportedly showing harassment by Patenio. However, she does not apply the law to the facts of this case, nor does she present argument disputing the trial court’s determination that her encounters with Patenio were not severe and pervasive enough to be actionable under the FEHA.
Bell did not file a reply brief.
Merely citing general case law and reciting tidbits of evidence without an affirmative demonstration of error is not cognizable legal argument and provides us with nothing substantively to consider on appeal. “[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. 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.” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
Where an appellant’s brief fails to provide the legal analysis necessary to determine whether her argument has merit, the appellate court may treat the point as forfeited. (Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).) Accordingly, Bell has forfeited any argument vis-à-vis her sexual harassment claim.
IV. Failure to Protect Against Harassment
An employer is not vicariously liable for harassment by a nonsupervisory employee. (Chin, supra, ¶ 10:395, p. 10-70.) However, under section 12940, subdivision (j)(1), an employer may be liable for harassment by a coworker if it “knows or should have known” of such conduct and fails to take “immediate and appropriate corrective action.”
In a separately headed section of her brief, Bell asserts that AAMG “was required to effectively protect [her] after [she] reported sexual misconduct by defendant Paten[io].” But her supporting argument consists of only one paragraph spouting quotes from cases that generally describe an employer’s duty to protect against harassment. Again, Bell fails to apply the law to the present facts. Nor does she address evidence that AAMG did take corrective action in response to her complaints about Patenio. We need not respond to arguments raised in such a manner. (Badie, supra, 67 Cal.App.4th at pp. 784-785; see also Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [failure to set forth a fair statement of facts forfeits the claim of error]; Estate of Palmer (1956) 145 Cal.App.2d 428, 431-432.)
In any event, Bell’s evidence fell short of raising a triable issue of fact as to whether AAMG was guilty of negligence in failing to take action against Patenio’s harassment. The evidence showed that, immediately upon receipt of Bell’s e-mail complaining about Patenio’s remarks about and touchings of her breasts, Ortega took prompt, vigorous disciplinary action. Although Bell’s declaration claims that she “reported” additional incidents, she is silent as to when those incidents occurred. Since an employer’s duty to take corrective action runs only from the time it “knew or should have known” of the harassment (Chin, supra, ¶ 10:414, p. 10-75), Bell failed to provide a factual predicate for employer liability under section 12940, subdivision (j)(1).
V. Unfair Business Practices
Bell asserts that the trial court “overlooked” her unfair business practices claim (Bus. & Prof. Code, § 17200 et seq.), citing a clause of her employment contract that required her to pay the expense of arbitration. She claims the clause violated Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (Armendariz).
Armendariz holds that “when an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court.” (Armendariz, supra, 24 Cal.4th at pp. 110-111.)
In granting summary judgment, the trial court rejected Bell’s unfair business practice claim stating, “there is no evidence that the employer here has sought to enforce the arbitration clause. Plaintiff concedes that she has no claim for restitution or damages. . . . As there is no evidence of a reasonable probability of future violations, there is no basis for injunctive relief. Plaintiff therefore has no remedy under Business [and] Professions Code section 17200.”
Bell’s entire argument on the issue consists of two paragraphs--one asserting that she “sued” for a violation of Business and Professions Code section 17200 and another quoting the holding of Armendariz. She does not contest the trial court’s ruling that she has no claim in restitution or damages and that she lacked standing to sue for injunctive relief. Since Bell’s perfunctory assertions do not qualify as reasoned argument, we deem the point abandoned. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.)
Nor, in fact, does the complaint even set forth a cause of action for violation of Business and Professions Code section 17200. Bell merely intersperses allegations of unfair business practices among the factual averments of her complaint. This omission alone is fatal: “Where a complaint does not state a cognizable claim, it is not necessary to proceed to the second step [of analysis], since a defendant has no obligation to present evidence to negate a legally inadequate claim.” (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 638-639.)
DISPOSITION
The judgment is affirmed. Defendant AAMG shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: DAVIS, Acting P.J., CANTIL-SAKAUYE, J.