Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-04-CV024689
Mihara, Acting P.J.
Plaintiff Bryan A. Cassell appeals from a judgment entered after the trial court granted defendant Walters & Wolf Glass Company’s motion for summary judgment. We concur with the trial court that several of plaintiff’s contentions in opposition to the summary judgment motion were not pleaded in the complaint and that plaintiff raised no triable issues of material fact on those claims properly pleaded. We therefore affirm the judgment.
I. Background
A. First Amended Complaint
In the First Amended Complaint for Damages dated October 5, 2004 (“First Amended Complaint”), plaintiff brought two causes of action against defendant: (1) employment discrimination in violation of the Fair Employment and Housing Act (“FEHA”) (Gov. Code, § 12940 et seq.) and (2) disclosure of plaintiff’s HIV status in violation of public policy. Plaintiff alleged that because he is HIV positive he is both “disabled” within the meaning of FEHA and has a recognized “medical condition,” and that defendant wrongfully terminated his employment due to his HIV positive status and his perceived sexual orientation. Plaintiff further alleged that defendant’s disclosure of his HIV positive status led directly to termination of his employment.
B. Summary Judgment Motion
Defendant filed a motion for summary judgment or, in the alternative, summary adjudication. Defendant argued that plaintiff cannot establish that anyone at the company knew of plaintiff’s HIV status at the time he was terminated or that his termination was based on that status or on plaintiff’s perceived sexual orientation.
Defendant submitted a statement of undisputed facts, supported by the following evidence. Defendant is a glass company that installs glass windows and doors on the exterior of commercial buildings up to 30 stories high. In the course of installation, “[l]arger, pre-assembled panels weighing hundreds of pounds are lowered to the designated location where the workers then put the glass in place and secure it.” Due to the nature of the work, the company “has a mandatory drug testing policy which is set forth in the company’s employee handbook.”
Plaintiff is a member of a glazier’s union and was employed by defendant as an apprentice glazier. After being loaned out to another employer, plaintiff was rehired by defendant in May 2004. Upon his rehire, plaintiff was provided a copy of the company’s handbook and required to take a drug test. Plaintiff tested positive for marijuana. The testing facility contacted Brian Wilbur, Director of Safety for defendant, who eventually learned the positive result may have been due to plaintiff’s use of a prescription drug called Marinol. Wilbur investigated Marinol and learned that it causes drowsiness and contains a warning not to operate heavy machinery. Defendant terminated plaintiff’s employment based on his use of the drug and the job safety concern the use posed.
Plaintiff also smoked medical marijuana, but did not disclose this fact to defendant.
Plaintiff attempted to remedy the situation by asking Stanford University Medical Center to fax a copy of his Marinol prescription to Dick Hessenflow. Hessenflow heads a program that contracts with labor unions to provide substance abuse services to union members. Instead of faxing the prescription, the nurse faxed a copy of plaintiff’s general medical marijuana authorization, which disclosed his HIV positive status. Hessenflow did not forward the fax to defendant or otherwise disclose plaintiff’s HIV status to defendant.
The three individuals involved in defendant’s decision to terminate plaintiff’s employment (Wilbur, Roger Ryan, Field Superintendent, and Skip Weltz, Vice-President of Operations) did not know of plaintiff’s HIV positive status at the time of the termination or at any time prior to the lawsuit. Defendant does not conduct HIV tests and did not disclose plaintiff’s HIV positive status to anyone. All three individuals denied having any knowledge of plaintiff’s “perceived sexual orientation” and stated that they did not give the subject any thought in making the decision to terminate his employment. Plaintiff began a new job two days after defendant fired him.
In opposition to the motion for summary judgment, plaintiff continued to assert that his HIV positive status was wrongfully disclosed and that he was terminated based on his HIV positive status and perceived sexual orientation. Plaintiff also argued that by terminating plaintiff for using medical marijuana, defendant violated the public policy of the state that gives ill Californians the right to obtain and use marijuana for medical purposes. Plaintiff further claimed that in firing him, defendant violated its own written drug policy and “discriminated against him on account of his medical condition and treatment.”
C. Trial Court’s Ruling
The trial court granted defendant’s motion for summary judgment. It found that plaintiff failed to raise a triable issue of fact with regard to the claim of employment discrimination in violation of FEHA: “[D]efendant showed that plaintiff could not prove that it terminated him because of his alleged disability, medical condition or perceived sexual orientation. Each type of alleged discrimination was predicated upon defendant having knowledge of plaintiff’s HIV status at the time the decision to terminate was made. Defendant showed that it did not possess any such knowledge, and that it terminated plaintiff for a legitimate, nondiscriminatory reason.”
The trial court also found no support for plaintiff’s claim that defendant wrongfully disclosed his HIV status and/or violated public policy: “It is undisputed that defendant did not conduct plaintiff’s HIV test or disclose/distribute the results thereof. . . . The court notes that plaintiff’s opposition papers contained contentions that defendant violated the public policy set forth in Health & Safety Code § 11362.5, as well as the internal policies of the company. Plaintiff, however, did not plead any such violations in the complaint. [Citation.] Furthermore, a cause of action for wrongful termination in violation of public policy cannot be predicated upon the violation of internal company policies. [Citation.]”
II. Discussion
“‘Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo.’” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 316.) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “The moving party’s burden on a motion for summary judgment is only to negate the existence of triable issues of fact in a fashion that entitles him to judgment on the issues raised by the pleadings; he is not required to refute liability on some theoretical possibility not included in the pleadings.” (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 156.)
On appeal, plaintiff relies on contentions similar to those raised for the first time in his opposition to defendant’s motion for summary judgment. In the First Amended Complaint, plaintiff alleged that he was wrongfully terminated due to his HIV positive status and perceived sexual orientation and that defendant wrongfully disclosed his HIV positive status. He claims on appeal, however, that defendant failed to accommodate his medical condition by prohibiting the off-duty use of prescribed medical marijuana, and that defendant discriminated against him under FEHA by firing him for that off-duty use. He further contends that defendant’s termination of his employment based on his use of prescribed medical marijuana violated California public policy as set forth in the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5). As the trial court found, these issues were not included in the First Amended Complaint and cannot be relied upon to oppose defendant’s motion for summary judgment.
The express purpose of the Compassionate Use Act is “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of . . . AIDS, . . . or any other illness for which marijuana provides relief.” (Health & Saf. Code, § 11362.5, subd. (b)(1)(A).)
“As we have recently reiterated, the pleadings set the boundaries of the issues to be resolved at summary judgment. A plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. . . . A summary judgment or summary adjudication motion that is otherwise sufficient cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdeclarations are no substitute for amended pleadings. Thus, a plaintiff wishing to rely upon unpleaded theories to defeat summary judgment must move to amend the complaint before the hearing.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648, internal citations and quotation marks omitted.) Plaintiff does not assert on appeal, nor does the record show, that he sought leave to amend his complaint before the hearing on the summary judgment motion. In ruling on the motion, the trial court therefore properly disregarded these new claims. Plaintiff does not even attempt to argue that the trial court’s finding on this matter was in error.
Plaintiff does contend, however, that the court erred in finding no triable issues of fact. “To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings.” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264.) Plaintiff alleged in the complaint that he was wrongfully terminated due to his HIV positive status and perceived sexual orientation. Yet, on appeal, plaintiff contends only that “there are triable facts on the issue of whether [plaintiff] was fired for using prescribed marijuana off duty.” Plaintiff appears to rely on this “triable fact[]” to support his new claims that FEHA requires an employer to accommodate private, off-duty medical marijuana use and that termination for off-duty use of medical marijuana violates public policy. As these claims were not pleaded in the First Amended Complaint, this “triable fact[]” is irrelevant to resolution of defendant’s summary judgment motion.
We note that these issues are currently pending before the California Supreme Court in Ross v. Ragingwire Telecommunications, Inc., review granted November 30, 2005, S138130.
Citing no legal authority, plaintiff further argues that defendant’s knowledge of plaintiff’s Marinol prescription is sufficient to show that defendant knew of plaintiff’s “medical condition” and discriminated against him on that basis in violation of FEHA. This argument—ostensibly related to the claim asserted in the complaint of wrongful termination based on plaintiff’s HIV positive status—does not persuade this court that the trial court overlooked a triable issue of material fact. The trial court found undisputed evidence that defendant had no knowledge of plaintiff’s HIV positive status at the time of termination and that plaintiff was fired “for a legitimate, nondiscriminatory reason” (i.e., use of a regulated drug presenting a job safety concern). Plaintiff does not challenge these findings. In this context, defendant’s awareness that a doctor had prescribed Marinol for some unspecified reason is insufficient to forestall summary judgment on the claim that defendant discriminated against plaintiff because of his “medical condition.”
We conclude the trial court properly granted defendant’s motion for summary judgment.
III. Disposition
The judgment is affirmed.
WE CONCUR: McAdams, J. Duffy, J.