Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIC836797. John S. Meyer, Judge.
IRION, J.
Linda Bratcher appeals from an adverse summary judgment ruling in her employment discrimination case against the Automobile Club of Southern California (ACSC). We conclude that the trial court properly granted summary judgment in favor of ACSC, and accordingly we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2003, ACSC terminated Bratcher from her employment as a mobile claim adjuster. At the time, she was 51 years old and had taken a six-week medical leave of absence with disability pay in late 2002 because of migraine headaches. She had also received progressive verbal and written warnings about her deficient employment performance during the year leading up to her October 2003 termination.
Bratcher worked for ACSC from 1971 to 1978, and again from 1984 to her termination in 2003.
Nearly a year after Bratcher was terminated, she filed a complaint with the California Department of Fair Employment and Housing (the DFEH) alleging that she was terminated by ACSC because of her age. Bratcher then filed this lawsuit against ACSC on October 6, 2004.
Bratcher filed a new complaint with the DFEH on September 22, 2005, during the litigation of this action, which alleged discrimination based on age, and gender and physical disability.
The operative complaint in this action is the first amended complaint, which contains three causes of action. The first cause of action alleges that Bratcher suffered employment discrimination and harassment due to her age, in violation of Government Code section 12941 of the Fair Employment and Housing Act (the FEHA). The second cause of action alleges that Bratcher was wrongfully terminated by ACSC in violation of public policy in contravention of Government Code section 12940, subdivisions (h) and (k), in that she was terminated because of a physical disability consisting of severe migraine headaches. The third cause of action alleges that ACSC violated the California Family Rights Act (the CFRA) (Gov. Code, § 12945.2, subd. (a)), in that it denied "her statutory right to family care and medical leave."
ACSC filed a motion for summary judgment, or in the alternative for summary adjudication (the first summary judgment motion). ACSC argued that Bratcher was unable to establish the necessary elements of any of her three causes of action because the undisputed evidence showed that she was terminated for poor performance rather than because of her age or physical condition, she was not harassed because of her age, and she did not seek to take a leave under the CFRA and did not file a claim regarding a violation of the CFRA with the DFEH. ACSC supported the motion with, among other things, a declaration from Bratcher's supervisor explaining the reason for Bratcher's termination and documents showing the warnings that Bratcher received for her poor work performance in the months leading up to her termination.
In her opposition to the first summary judgment motion, Bratcher argued, among other things, that the motion should be denied without prejudice under Code of Civil Procedure section 437c, subdivision (h) so that she could conduct additional discovery. She explained that no depositions had yet been conducted, but that her counsel, who had just recently substituted into the case, had noticed several depositions that would be conducted after the summary judgment motion was scheduled to be heard, and Bratcher herself was scheduled to be deposed three days before the hearing.
The delay in taking the depositions was due to Bratcher, as she had previously noticed certain depositions when she was represented by different counsel, but then withdrew the notices. In addition, ACSC had previously tried to depose Bratcher, but Bratcher asked several times that the date of her deposition be rescheduled, in part because of the withdrawal of her previous counsel.
The parties argued the first summary judgment motion at a hearing held on September 16, 2005. ASCS agreed that additional discovery would be appropriate, and the trial court decided to allow additional discovery, denying the first summary judgment motion without prejudice pursuant to Code of Civil Procedure section 437c, subdivision (h).
When a trial court decides to allow additional discovery in response to a motion for summary judgment under Code of Civil Procedure section 437c, subdivision (h), it may, according to the text of the statute, either continue the motion for summary judgment or deny the motion without prejudice. Although the trial court stated during the hearing on the first summary judgment motion that it would be continuing the motion, the trial court later indicated that it had intended to deny the motion without prejudice, allowing ACSC to refile a summary judgment motion after the parties had conducted further discovery. The trial court's intended ruling is described in a settled statement for a December 15, 2005 hearing, which also recites some of the procedural history of this action. According to the settled statement, the trial court "denied ACSC's entire [first summary judgment motion] without prejudice pursuant to [s]ection 437c [subdivision (h)] of the [Code of Civil Procedure] to allow [Bratcher] to conduct additional discovery." Because the trial court ultimately allowed ACSC to file a different summary judgment motion, there is no doubt that the trial court did in fact deny the summary judgment motion without prejudice and did not merely continue the motion that ACSC had already filed.
The trial court held an ex parte hearing on October 27, 2005, concerning the scheduling of a new motion for summary judgment and the setting of a new trial date. The record does not contain a transcript of the ex parte hearing. However, according to ACSC's notice of ruling on the ex parte application, the trial court ruled that it would hear ACSC's "re-filed motion for summary judgment, or in the alternative, summary adjudication" on January 6, 2006. According to the notice of ruling, the trial court "ruled that the motion shall be filed and served in accordance with the rules for filing a regular motion, and not a motion for summary judgment." The trial court also set February 17, 2006, as the trial date.
The rulings made at the October 27, 2005 ex parte hearing are also reflected in a settled statement for a December 15, 2006 hearing, which also recites some of the procedural history of the action, including the ruling that ACSC's new summary judgment motion " 'shall be filed and served in accordance with the rules for a regular motion.' "
ACSC filed and served a new summary judgment motion (the second summary judgment motion) on December 13, 2005, noticing it for hearing on January 6, 2006. The second summary judgment motion was materially different from the first summary judgment motion. It was supported by additional evidence, including excerpts from Bratcher's recent deposition and a declaration from an employee of ACSC's human resources department describing the ages and employment histories of the mobile claim adjusters who worked in the same department as Bratcher from 2001 to 2003. ACSC's separate statement of facts in support of the second summary judgment motion listed 90 undisputed material facts, compared with 44 undisputed material facts listed in support of the first summary judgment motion.
On December 14, 2005, the day after ACSC filed the second summary judgment motion, Bratcher filed an ex parte application, complaining that she did not receive the full 75 days of notice that is required for summary judgment motions by Code of Civil Procedure section 437c, subdivision (a). According to a settled statement of what occurred at the ex parte hearing, the trial court "indicated that it was unwilling to move the trial date" to allow the summary judgment motion to be heard at least 75 days after it was served. Instead, the trial court afforded Bratcher 21 more days notice by moving the hearing date from January 6 to January 27. Further, counsel for ACSC offered to allow Bratcher to file her opposition on January 17, instead of on January 13. Accordingly, Bratcher received a total of 35 days of notice before she was required to file her opposition to the second summary judgment motion, and she received a total of 46 days of notice before the summary judgment hearing.
Pursuant to the notice requirements and briefing schedule set forth in Code of Civil Procedure section 437c, a party is required to file an opposition to a motion for summary judgment no earlier than 61 days after service of the motion. (See Code Civ. Proc., § 437c, subd. (b)(2) [opposition must be filed at least 14 days before the hearing date].) In this case, Bratcher was given only 35 days to file her opposition to the second summary judgment motion.
Bratcher filed her opposition to the second summary judgment motion on January 17, 2006. ACSC filed its reply papers on January 20, 2006. On January 26, 2006, Bratcher's attorney filed a supplemental declaration in support of Bratcher's opposition, which attached a deposition transcript from a deposition of a representative from ACSC's human resources department, Sandi Adame, which had taken place on January 23, 2006.
After the trial court issued a tentative decision granting the second summary judgment motion, the parties argued the motion, and the trial court took the matter under submission. The trial court also permitted each party to file a one-page letter brief addressing Adame's deposition testimony. After receiving the letter briefs, the trial court granted ACSC's second motion for summary judgment and entered judgment in favor of ACSC. Bratcher appeals from the judgment.
II
DISCUSSION
A. Bratcher's Challenge to the Shortened Notice Period for the Second Summary Judgment Motion
Bratcher contends that the trial court committed reversible error by entertaining the second summary judgment motion although Bratcher did not receive at least 75 days of notice prior to the hearing as required by Code of Civil Procedure section 437c, subdivision (a). Bratcher argues that by setting the hearing for January 27, 2006, in response to Bratcher's ex parte application in which she sought the full 75 days required by statute, the trial court in effect ordered a shortened notice period for the second summary judgment motion, allowing the motion to be heard 46 days, rather than 75 days, after it was served.
As we will explain, we agree that the trial court erred. However, because Bratcher has not carried her burden to demonstrate prejudice resulting from the error, we conclude that the error does not provide a ground to reverse the judgment.
1. The Trial Court Erred by Hearing the Second Summary Judgment Motion on Shortened Notice
We begin our analysis with a review of the applicable statute. Code of Civil Procedure section 437c, subdivision (a) states that a motion for summary judgment "shall be served on all other parties to the action at least 75 days before the time appointed for hearing." The statute makes no distinction between the notice period required for (1) an initial summary judgment motion and (2) a subsequent summary judgment motion filed after the trial court has denied an initial summary judgment motion without prejudice pursuant to Code of Civil Procedure section 437c, subdivision (h) to allow the parties to conduct further discovery. Accordingly, we conclude that the plain language of the statute requires a 75-day notice period for all summary judgment motions, regardless of whether a previous summary judgment motion has been denied without prejudice.
Case law establishes that a trial court does not have the authority to shorten the minimum notice period required by Code of Civil Procedure section 437c, subdivision (a). Most specifically on point is Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, which reversed a summary judgment ruling because the trial court had heard the motion on shortened notice without obtaining the consent of the opposing party. Urshan explained that "a trial court's inherent power does not provide authority for a trial court to shorten minimum time periods when specified as mandatory by the Legislature," and "the express mandatory language of Code of Civil Procedure section 437c, subdivision (a) makes clear the Legislature intended to deprive trial courts of the power to shorten the notice period for hearing summary judgment motions." (Id. at p. 767.)
Similarly, McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118, concluded that "in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings." Based on this principle, McMahon granted a petition for writ of mandate requiring the trial court to afford the statutory notice period before hearing the summary judgment motion. McMahon explained that "[b]ecause it is potentially case dispositive and usually requires considerable time and effort to prepare, a summary judgment motion is perhaps the most important pretrial motion in a civil case. Therefore, the Legislature was entitled to conclude that parties should be afforded a minimum notice period for the hearing of summary judgment motions so that they have sufficient time to assemble the relevant evidence and prepare an adequate opposition." (Id. at pp. 117-118.)
Based on these authorities, we conclude that the trial court erred in ruling on the merits of the summary judgment motion, over Bratcher's objection, because Bratcher did not receive the required 75-day notice period prior to the hearing.
2. The Error Does Not Warrant Reversal
We next explain that although the trial court erred in entertaining the summary judgment motion when Bratcher had not received sufficient notice, Bratcher has not met her burden to show that she was prejudiced by the error.
A judgment will not be reversed unless the appellant established prejudice and a miscarriage of justice. Code of Civil Procedure section 475 provides in part that "[n]o judgment, decision, or decree shall be reversed or affected by reason of any error . . . unless it shall appear from the record that such error . . . was prejudicial, and also that by reason of such error . . ., the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown." Further, our Constitution provides that "[n]o judgment shall be set aside . . . in any cause . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)
As the appellant, Bratcher has the burden to show that she was prejudiced by the trial court's error. (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 347 ["an appellant has the burden to show not only that the trial court erred but also that the error was prejudicial"].) "Error is prejudicial if it is reasonably probable that a result more favorable to the appellant would have been reached absent the error." (Id. at p. 348.) Bratcher "bears the duty of spelling out in [her] brief exactly how the error caused a miscarriage of justice." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 (Paterno).)
Here, Bratcher has not carried her burden to show prejudice. Bratcher's opening brief makes no attempt whatsoever to show that she was prejudiced by the fact that she did not receive the 75 days of notice required by statute. Further, Bratcher did not file a reply brief, and thus did not even attempt to address ACSC's argument that she made no showing of prejudice. The record also contains no argument by Bratcher in the trial court concerning how she would be prejudiced by receiving less than 75 days of notice. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties" (Paterno, supra, 74 Cal.App.4th at p. 106), and we will not do so here.
At oral argument, Bratcher argued, for the first time and without citation to authority, that the type of error committed by the trial court presented a situation of "prejudice per se." "We will not consider an issue not mentioned in the briefs and raised for the first time at oral argument." (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 854.)
Because Bratcher did not meet her burden to establish prejudice, we conclude that the trial court's error in hearing the second summary judgment motion on shortened notice does not warrant reversal of the judgment.
B. ACSC's Motion for Summary Judgment
Bratcher contends that the trial court erred by granting summary judgment in favor of ACSC, as Bratcher has identified triable issues of material fact as to each of the three causes of action in the operative complaint. We thus turn to an analysis of whether a triable issue of material fact exists as to any of the three causes of action.
1. The First and Second Cause of Action
The first and second causes of action allege that ACSC discriminated against Bratcher based on her membership in a protected class in violation of FEHA. The first cause of action alleges that Bratcher was harassed and discriminated against because of her age. The second cause of action alleges that Bratcher was wrongfully terminated, in violation of public policy, because she had a physical disability consisting of severe migraine headaches.
a. Standards Applicable to an Employment Discrimination Claim Challenged by a Motion for Summary Judgment
The same general approach is applicable to both of these employment discrimination claims in the context of a summary judgment motion. "Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) To analyze disparate treatment of employment discrimination claims brought under the FEHA, California courts follow the three-stage burden-shifting analysis established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) for federal discrimination cases. (See Guz, at p. 355 & fn. 21.)
" 'Disparate treatment' is intentional discrimination against one or more persons on prohibited grounds" as opposed to " 'disparate impact,' " which focuses on the adverse effect of a "facially neutral" employment practice. (Guz, supra, 24 Cal.4th at p. 354, fn. 20.) Bratcher has not identified any facially neutral employment practice that she is challenging in this action.
Under that burden-shifting analysis, "[f]irst, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' [Citation.] Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-253, citing McDonnell Douglas, supra, 411 U.S. at pp. 802, 804.)
In conducting our de novo review of the trial court's summary judgment ruling, we apply McDonnell Douglas's three-stage burden-shifting analysis together with the burden-shifting analysis applicable to a summary judgment motion. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar) [a defendant satisfies its burden on summary judgment by showing " 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' " to that cause of action. If the defendant meets his initial burden, "the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact"].) ACSC may meet its burden on summary judgment as to McDonnell Douglas's first step by pointing to a lack of evidence in support of plaintiff's prima facie case, and ACSC will prevail if Bratcher is unable to rebut that showing by establishing that there is a triable issue of material fact as to her prima facie case. (See Guz, supra, 24 Cal.4th 317, 374 (conc. opn. of Chin, J.) [concluding that the burden shifts to the plaintiff to produce a prima facie case of discrimination when the defendant satisfies its initial burden to show that the plaintiff "cannot reasonably expect to obtain a prima facie case"]; Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203 ["If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing"].)
ACSC may also meet its burden by setting forth admissible evidence sufficient to support a finding in its favor that it had a legitimate nondiscriminatory basis for Bratcher's termination, which will satisfy the second step of the McDonnell Douglas framework and also carry its initial burden on summary judgment. (See Guz, supra, 24 Cal.4th at p. 357.) In that case, the burden shifts both under the summary judgment analysis and under the McDonnell Douglas framework, and our inquiry becomes whether Bratcher has met her burden "to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Guz, at p. 357.)
b. ASCS Established that Bratcher Cannot Prove a Prima Facie Case of Employment Discrimination
ACSC argues that Bratcher cannot establish a prima facie case of age discrimination or discrimination based on physical disability because she cannot establish one of the necessary elements, namely, that she was performing competently in her job.
Although "[t]he specific elements of a prima facie case may vary depending on the particular facts," a prima facie case of disparate treatment employment discrimination generally includes evidence showing "(1) [plaintiff] was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz, supra,24 Cal.4th at p. 355, italics added.) As we will explain, we agree with ACSC that Bratcher cannot establish a prima facie case of employment discrimination based either on age or physical disability because the evidence shows that she was not performing competently in the position that she held.
In the contest of a claim for discrimination based on age, "[b]ecause it lacks probative value, the fact that an [age discrimination] plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case[,]" but rather "the prima facie case requires 'evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion . . . .' " (O'Connor v. Consolidated Coin Caterers Corp. (1996) 517 U.S. 308, 312, 313.)
Accordingly, we need not proceed to the other two steps of McDonnell Douglas's three-stage burden-shifting analysis.
ACSC produced unrebutted evidence that Bratcher was not performing competently in her position. ACSC established that in the year leading up to her October 2003 termination, Bratcher was repeatedly counseled and warned about her deficient performance under the progressive discipline policy followed by ACSC, consisting of a verbal warning, an initial written warning, a final written warning, and finally, termination.
In October 2002, before she took a six-week medical leave because of her migraine headaches, Bratcher was given a verbal warning by her supervisor, Dane Clark, in accordance with ACSC's progressive discipline policy for failing to meet the minimum standards of her job in the area of claimant and insured contact requirements, investigation standards and case management guidelines. In late February 2003, two months after Bratcher returned from her medical leave, her new supervisor, Henning Jonsson, audited Bratcher's files and discovered that the same unacceptable performance issues were persisting. Instead of giving Bratcher a written warning, Jonsson gave Bratcher another formal verbal warning.
In March 2003, Jonsson received complaints that Bratcher was not returning telephone calls in the course of performing her job, and in April 2003 he conducted another review of Bratcher's files, which showed the same performance deficiencies as existed earlier. Bratcher also had failed to turn in her time card during one pay period. In accordance with ACSC's progressive discipline policy, Jonsson gave Bratcher a first written warning on April 16, 2003.
During late April 2003, Jonsson received complaints about Bratcher's failure to respond to telephone calls and mail and to follow procedures, and he noticed that the number of her pending files was increasing. He gave her a verbal warning about the problems on May 8, 2003. On May 30, 2003, Jonsson provided Bratcher with another verbal warning after finding out that she had conducted a poor investigation of a particular matter, which required that he transfer the matter to another adjuster.
In July 2003, Jonsson conducted reviews of Bratcher's open and closed files. He discovered that Bratcher had not been following proper procedures, had numerous delays in closing her files, and was not working in the field as required of mobile claim adjusters. He also noticed that Bratcher had failed to turn in one of her time cards and had errors on two other time cards since she received her first written warning. Jonsson thus gave Bratcher a final written warning on July 29, 2003, in accordance with ACSC's progressive discipline policy. To allow Bratcher to attempt to catch up with her pending files, Jonsson excused Bratcher from receiving new files for three work days and assigned 10 of her files to other adjusters.
In the two months after Bratcher received the final written warning, Jonsson continued to receive complaints about how Bratcher handled her files, and Bratcher made another mistake on her time card. Jonsson conducted other reviews of Bratcher's files and found that nearly two-thirds of her open files had deficiencies. He met with Bratcher on September 10, 2003, to tell her that she was not meeting the standards expected of an ACSC mobile claim adjuster. During Bratcher's two-week vacation that ended on October 6, 2003, Jonsson reviewed Bratcher's pending files and determined that her performance had not improved. Therefore, after receiving approval from his supervisor and ACSC's human resources department, Jonsson terminated Bratcher's employment on the day that she returned from vacation.
Bratcher submitted no evidence that would create a triable issue of material fact on the issue of her deficient performance. Indeed, the record shows that Bratcher admitted during her employment that she had performance deficiencies. In response to the first written warning, she responded in writing, citing the fact that she had been unable to work because of a cold or flu and some "tragic issues" she had to deal with. She stated, "I feel now since my migraines are under control, my daughter's lawsuit is almost over, [and] I've already had a viral attack — this is behind me. I will definitely improve my mobile standards [and] have been so for a few weeks now." After her final written warning, Bratcher stated, "I am aware that my 'work in progress' list has become out of control [and] I am trying to get caught up to an acceptable level."
In her appellate briefing, Bratcher does not dispute the truth of the description of her performance presented by ACSC. Nor does she present any evidence calling into question any of the problems with her work performance documented by ACSC. Instead, Bratcher argues in her appellate briefing that ACSC's showing in support of its summary judgment motion is insufficient because it is based on Jonsson's declaration, which she argues should not be considered.
First, Bratcher argues that Jonsson's declaration should not be considered because it contains "many" hearsay statements. Bratcher makes no effort to identify which statements in Jonsson's declaration are the subject of her objection. Instead, she refers to the evidentiary objections that she filed in the trial court. Bratcher's reliance on her objections in the trial court is not sufficient to raise the issue on appeal. Moreover, because the record contains no indication that the trial court expressly ruled on Bratcher's objections, the evidence to which Bratcher objected is considered part of the record on appeal and Bratcher's evidentiary objections are deemed to have been waived and not preserved for appeal. (See Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566 (Demps).)
Courts have recognized an exception to the waiver rule "when counsel specifically requests a ruling on evidentiary objections and the trial court nonetheless declines to rule." (See, e.g., Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 624, fn. 7, citing City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784; see also Demps, supra, 149 Cal.App.4th at p. 579 [discussing exception to waiver rule, but declining to decide whether to adopt it].) Here, the record contains no indication that Bratcher sought to obtain a ruling on her evidentiary objections.
Second, Bratcher argues that Jonsson's declaration should be discounted because it "continually presented 'clear statements of opinion as fact' " and "[t]here is not a single shred of corroborating evidence to show that these statements are anything other than the opinions and beliefs of one man." We disagree. Jonsson's declaration describes the facts that constitute Bratcher's employment history, including the progressive discipline imposed on her by ACSC, and the statements of fact set forth in Jonsson's declaration are supported and corroborated by attached documents from Bratcher's personnel file, including the warnings provided to Bratcher and Bratcher's own admissions of her deficient performance.
Similarly, Bratcher argues that we should disregard Jonsson's declaration pursuant to Code of Civil Procedure section 437c, subdivision (e), which states that "summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where 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." Bratcher argues that "Jonsson's declaration continually states material facts that go directly to his 'state of mind,' opinion, and belief. As we have explained, the probative value of Jonsson's declaration does not rest on its expression of Jonsson's state of mind. Instead, the declaration sets forth facts concerning the progressive discipline imposed on Bratcher and authenticates supporting documents. This evidence carries ACSC's burden to show that Bratcher was not performing competently in her job.
In sum, the evidence presented by ACSC is sufficient to carry ACSC's burden to show that Bratcher cannot establish a prima facie case of employment discrimination because she was not performing competently in her job. Bratcher has identified no evidence that would create a triable issue of material fact on that issue, and summary judgment in favor of ACSC is warranted on the first and second causes of action for discrimination based on age and wrongful termination in violation of public policy based on physical disability.
c. Summary Judgment Was Properly Granted with Respect to Any Claim Asserted in the Second Cause of Action that ACSC Failed to Reasonably Accommodate a Physical Disability
Our previous discussion addressed the second cause of action insofar as it asserts a theory that ACSC wrongfully terminated her in violation of public policy by terminating her based on a physical disability. However, in opposing ACSC's summary judgment motion in the trial court, Bratcher contended that the second cause of action asserted an additional theory of liability based on her alleged physical disability. Bratcher argued that ACSC unlawfully failed to engage in an interactive process with her to accommodate her disability. Specifically, in the trial court Bratcher cited Government Code section 12940, subdivision (n), which states that it is unlawful "[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition."
As ACSC points out, this theory of liability is not raised in the complaint and thus Bratcher may not attempt to identify a triable issue of material fact on this issue in order to avoid summary judgment. (See Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 ["summary judgment cannot be denied on a ground not raised by the pleadings" (italics omitted)].)
However, even if Bratcher had pled in her complaint that ACSC failed to accommodate her alleged disability, summary judgment in favor of ACSC would properly be entered as to that allegation as well. The record contains no evidence that, after returning from her six-week medical leave in December 2002 and leading up to her termination in October 2003, Bratcher ever advised management that she had a disability that needed to be accommodated. On the contrary, Bratcher stated in response to her first written warning that her migraines were now "under control"; she did not mention anything about a physical disability that needed to be accommodated in response to her final written warning; and she admitted in her deposition that she did not ask to take another medical leave after she returned in December 2002. In addition, Bratcher testified that she understood she could take sick days if necessary, and on her sick days she would not be assigned new files, which would have prevented some of her backlog of files, but she did not do so. With no indication from Bratcher that she had any disability that needed to be accommodated, ACSC was not required to inquire independently of Bratcher whether it needed to accommodate her. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 [the interactive process between employer and employee to find a reasonable accommodation " 'is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation' "].)
d. Summary Judgment Was Properly Granted with Respect to Any Claim Asserted in the First Cause of Action that Bratcher Suffered Harassment Based on Her Age
In addition to alleging discrimination based on age, the first cause of action alleged age-based harassment. ACSC argued in its motion for summary judgment that summary judgment was warranted as to that claim because Bratcher was unable to establish that she was harassed because of her age. We agree.
Government Code section 12940, subdivision (j)(1) makes it unlawful for an employer to harass an employee based on a protected characteristic, including age. Here, ACSC established that Bratcher had not identified any harassment that occurred because of her age. At her deposition, the only instance of perceived harassment that Bratcher was able to identify was an incident in which a manager berated her for questioning ACSC's policy of giving employees a candy gift certificate during the winter holidays, which she did not believe had anything to do with her age. In her response to ACSC's motion for summary judgment in the trial court, Bratcher did not identify any evidence indicating that she was harassed based on her age. Further, Bratcher's appellate briefing identifies no evidence to support such an allegation.
Bratcher contended in the trial court and contends on appeal that random audits of employee files were "targeted toward older employees" and were "a vehicle" to terminate them. However, Bratcher produced no evidence to support this assertion.
Accordingly, summary judgment was properly entered with respect to the portion of the first cause of action which alleges that Bratcher was subjected to harassment based on her age.
2. The Third Cause of Action
The third cause of action alleges that ACSC failed to comply with the CFRA. (Gov. Code, § 12945.2, subd. (a).) The CFRA makes it unlawful for an employer "to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave." (Gov. Code, § 12945.2, subd. (a).) Further, an employer is prohibited from discriminating or retaliating against an employee for taking a leave permitted by the CFRA. (Id., subd. (l)(1).)
Here, undisputed evidence in the record shows that the only leave Bratcher requested from ACSC was the six-week medical leave that ACSC authorized in late 2002. Bratcher did not request to take a leave at any time after she returned from her medical leave in December 2002. Bratcher's appellate brief contains no argument with respect to her third cause of action and makes no attempt to argue that she was denied her right to take a leave under the CFRA or that she was penalized for the exercise of her rights under the CFRA. Accordingly, summary judgment was properly granted on Bratcher's claim in the third cause of action that ACSC failed to comply with the CFRA.
ACSC also argues that summary judgment was warranted on the third cause of action because the undisputed evidence showed that Bratcher did not file a claim for violation of the CFRA, which is a prerequisite for bringing a lawsuit based on a statutory cause of action under the FEHA. (Gov. Code, § 12965, subd. (b); Rojo v. Kliger (1990) 52 Cal.3d 65, 83.) Because we have determined that summary judgment was properly granted on other grounds, we need not and do not reach this issue.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, Acting P. J., AARON, J.
In addition to challenging Jonsson's declaration, Bratcher's appellate brief also makes a cursory argument challenging a declaration filed in support of ACSC's summary judgment motion by ACSC's counsel, Derek Lipscombe. Bratcher argues that she objected in the trial court that "many, if not all, of the statements made in the declaration lack foundation or any basis of personal knowledge." We reject this argument for the same reasons that we reject Bratcher's evidentiary objections to Jonsson's declaration. First, Bratcher does not specify the portions of the declaration to which she objects. Second, because the record contains no indication that she received a ruling from the trial court on the objections, they are not preserved for appeal. Moreover, we note that Bratcher does not attempt to establish that any portion of the Lipscombe declaration is material to the issues that are dispositive of this appeal.