Opinion
B305661
05-09-2022
NICOLE MARIE HERMANSON, Plaintiff and Appellant, v. NOVO NORDISK, INC., et al., Defendants and Respondents.
Gary Rand & Susanne E. Rand-Lewis, Suzanne E. Rand-Lewis and Timothy D. Rand-Lewis for Plaintiff and Appellant. Morgan, Lewis & Bockius, Daryl S. Landy, Thomas M. Peterson, Kathryn T. McGuigan and Nancy Nguyen for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC705434 David Sotelo, Judge.
Gary Rand & Susanne E. Rand-Lewis, Suzanne E. Rand-Lewis and Timothy D. Rand-Lewis for Plaintiff and Appellant.
Morgan, Lewis & Bockius, Daryl S. Landy, Thomas M. Peterson, Kathryn T. McGuigan and Nancy Nguyen for Defendants and Respondents.
STRATTON, J.
After being terminated from her employment as a diabetes care specialist with Novo Nordisk, Inc. (NNI), Nicole Marie Hermanson brought this action against NNI and her former supervisor Sarah McLeish (collectively respondents) alleging 10 causes of action related to respondents' termination decision and their conduct prior to termination. The gist of her claims was that after she questioned a work assignment by McLeish, which Hermanson believed was contrary to NNI's policies, McLeish retaliated against her, caused her to become disabled, and refused to accommodate her disability. The basis for her gender discrimination and harassment claims is less clear, apart from a general claim that McLeish, a woman, felt threatened by other competent women and preferred to work with men. Respondents moved for and were granted summary judgment on Hermanson's complaint.
The 10 causes of action are: 1) breach of contract; 2) breach of the covenant of good faith and fair dealing; 3) wrongful termination in violation of public policy; 4) violation of the Fair Employment and Housing Act (FEHA), Government Code section 12900 (discrimination, harassment and retaliation); two violations of FEHA (Gov. Code, § 12940, subd. (a)), involving 5) refusal to accommodate her claimed disability and 6) failure to engage in an interactive process; 7) intentional infliction of emotional distress; 8) a violation of Business and Professions Code section 17200; 9) intentional and negligent misrepresentation and concealment; and 10) violation of Labor Code section 1198.5.
Hermanson now appeals the trial court's order granting summary judgment. The headings in her brief on appeal do not clearly or adequately convey the arguments advanced under each heading, which makes it difficult to ascertain her precise claims on appeal. In essence, she appears to contend summary judgment was improper because respondents' moving papers did not comply with court rules and procedural requirements of the summary judgment statute; respondents failed to comply with discovery; there were triable issues of material fact as to each cause of action; and the trial court's evidentiary rulings on both parties' objections were erroneous.
Appropriate headings require litigants to" 'present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.' [Citation]." (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 (Opdyk).) "Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading." (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.) Although we exercise our discretion to consider all the discernible issues in Hermanson's brief, any arguments not discussed in this opinion are deemed forfeited.
Hermanson has forfeited many of her claims by failing to adequately brief them. For those cognizable claims, we see no abuse of discretion in the trial court's evidentiary rulings and no error in the grant of summary judgment. Accordingly, the judgment is affirmed.
BACKGROUND
It is undisputed that NNI hired Hermanson in December 2013 as a diabetes care associate. She worked first in Las Vegas and then from 2014 until May 31, 2016 in Los Angeles County. In Los Angeles, she worked as a diabetes care specialist. Hermanson's job as a diabetes care specialist was to "call on" or speak to health care providers (HCP) and give them samples of NNI's product(s), in order to promote those products. Calling on an HCP meant having a face-to-face interaction with the HCP. NNI required Hermanson to keep a record of the calls she made.
It is undisputed that in the fall of 2015, Hermanson began reporting to McLeish, who was the district business manager.
In her complaint, Hermanson alleged: "At first, [she] had no problems with [McLeish], receiving good feedback from [her]. However, it was evident to [Hermanson] that [McLeish] was biased, preferred working with men and discriminated against women, especially women who appeared to do well within the company and might be her potential competitor." Hermanson further alleged that McLeish "began to harass, discriminate against and retaliate against [Hermanson]. [Hermanson] was asked by [McLeish], to make a call on a pharmacy which was outside [Hermanson's] territory. [Hermanson] questioned this request as she had been told many times . . . that they were never to call outside their territories." Hermanson alleged she sent an email to McLeish which stated in part:" 'I want to make sure I am following business rules as I know that the pharmacy is not in our territory so I want to make sure I am not overstepping my boundaries.'" McLeish responded:" 'You are following business rules by visiting this pharmacy'" because the team responsible for the territory is aware of Hermanson's visit. Hermanson alleged that after this email exchange McLeish's "demeanor towards [Hermanson] changed . . . [McLeish thereafter began to harass [Hermanson]. It was clear, [McLeish] was motivated by [Hermanson] challenging her regarding company policy, and because of [Hermanson's] gender, created a hostile work environment for her and other women she perceived as a threat."
NNI claimed it terminated Hermanson for poor record keeping, a problem which began before McLeish became her supervisor. It was undisputed that on December 14, 2015, McLeish issued a warning letter to Hermanson summarizing a Compliance Department review of Hermanson's record keeping, which found Hermanson had not accurately recorded the number of attendees at an in-office HCP meal. There was evidence this investigation had begun before McLeish became Hermanson's supervisor. Hermanson disputed that the underlying claim was true.
It was also undisputed that on March 22, 2016, McLeish visited a medical office and encountered Hermanson outside the office. Hermanson said she would return later to call on the HCP's. That night McLeish noticed Hermanson had noted a face-to-face call for an HCP at that office; McLeish, however, knew from her visit that the HCP was on vacation. In her declaration, Hermanson does not directly deny she created this inaccurate call record.
There is evidence that on March 28, 2016, Hermanson mentioned the call to McLeish and described details of a conversation with the HCP. McLeish told Hermanson that the HCP had not been in the office that day. According to McLeish, Hermanson admitted she should not have recorded a "professional" call with the HCP because they did not have face-to-face contact. McLeish coached Hermanson on proper reporting and summarized the coaching in a field coaching report. Hermanson electronically acknowledged receipt of the report. In her declaration, Hermanson denies that any discussion of the March 22 call took place.
It was undisputed that in early April, 2016, McLeish discussed an action plan for Hermanson with Amy Foshee, a manager in employment relations, to remedy Hermanson's call recording practices and other deficiencies. They found other instances in which Hermanson may have recorded her calls inaccurately or falsely, and decided to investigate further. They found three potential instances of what they believed were call falsification in the previous two months.
It is undisputed that on May 18, 2016, McLeish sent an email to Hermanson telling her she wanted to speak with Hermanson the next day about her sales call activities. There was evidence that McLeish scheduled a conference call which included Foshee for 8:00 a.m. on May 19.
It is undisputed Hermanson left a message on NNI's employee hotline at some point on May 18, 2016.
It is undisputed that on May 19, 2016, Hermanson called NNI's human resources hotline and stated she wanted to file a complaint against McLeish. The call occurred at 6:00 a.m. Later that same day, McLeish and Foshee spoke telephonically with Hermanson about allegations she had falsified some of her call records. In her declaration, Hermanson states she denied the accusations. McLeish and Foshee declared Hermanson admitted she recorded the calls inaccurately, but did not explain why.
It is undisputed McLeish decided to terminate Hermanson almost immediately after the telephone call.
It is undisputed Hermanson took a previously scheduled day off on May 20, 2016, and she never returned to work at NNI.
It is undisputed Hermanson visited a doctor on May 23, 2016, and requested medical leave. It is also undisputed May 23, 2016 was the first time she provided documentation of her medical condition to NNI.
On May 31, 2016, NNI officially terminated Hermanson.
DISCUSSION
A trial court grants summary judgment when a moving party shows there is no triable issues as to any material fact and the party is entitled to judgment as matter of law. (Code Civ. Proc., § 437c, subd. (c).) "[I]n moving for summary judgment, a 'defendant . . . has met' his 'burden of showing that a cause of action has no merit if' he 'has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, 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 or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' (Code Civ. Proc., § 437c, subd. (o)(2).)" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
On appeal from summary judgment, we exercise an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court. (San Diego Unified Port Dist. v. Gallagher (1998) 62 Cal.App.4th 501, 503.) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46]), liberally construing her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
" 'On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court.' [Citation.]' "As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed." '" (Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 301 (Abdulkadhim).) "[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." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.) Put differently, "to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record." (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287 (City of Santa Maria).) "We are not obliged to make other arguments for [appellant] [citation], nor are we obliged to speculate about which issues counsel intend to raise." (Opdyk, supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["We are not bound to develop appellants' arguments for them"].) We may and do "disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt." (City of Santa Maria, supra, at p. 287.)
I. Hermanson's Miscellaneous Opening Claims Either Lack Merit or Have Been Forfeited.
Under the vague heading "Respondents Did Not Establish Their Right to Judgment as a Matter of Law," Hermanson contends respondents' separate statement of facts did not comply with the rules of court; the motion did not set forth undisputed facts supporting each issue to be adjudicated; she objected to and disputed all of respondents' facts; and respondents' motion did not shift the burden to her. We address this jumble of contentions briefly and serially.
A. The Format of Respondents' Separate Statement Did Not Mandate Denial of Their Motion.
After initially acknowledging that it is within the trial court's discretion to deny a motion which does not comply with Code of Civil Procedure section 437c, subdivision (b)(1), Hermanson then contends the trial court was "mandate[d]" to strictly construe the separate statement's format because respondents were the moving party. She contends the trial court had to deny the motion on that ground. Hermanson cites no legal authority to support her contention, which contradicts the plain language of the statute conferring discretion on the trial court.
Further, the trial court expressly found the separate statement to be satisfactory. We have reviewed the separate statement: it provides page and line cites to depositions and paragraph numbers for declarations. It is effective at identifying the evidence supporting the asserted fact. Further, Hermanson used the same format herself. The trial court did not abuse its discretion in finding respondents' statement satisfactory.
B. Hermanson Has Forfeited Her Claim That Respondents' Separate Statement Did Not List Undisputed Facts.
Hermanson next claims broadly and conclusively that respondents' separate statement contains "only legal conclusions, misstatements of the legal standards applicable herein, hearsay statements and argument." She does not provide a single specific example of a listed fact which falls into any of those categories, and even a cursory examination of the separate statement of facts shows her extremely broad contention to be untrue. This claim is forfeited. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287.)
Under this same heading referring to undisputed facts, Hermanson claims respondents "completely ignored the central allegation in [her] Complaint," that McLeish tried to send Hermanson to visit a pharmacy outside her territory as part of a conspiracy "to obtain individually identifiable health information of patients . . . in violation of 42 U.S.C. §§ 1320d-6(a) and 1320-6(b)(3) [and] HIPAA rules." There are no such allegations in her complaint." 'The pleadings delimit the issues to be considered on a motion for summary judgment.'" (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)
Also under this same heading, Hermanson claims her separate statement disputed the facts submitted by respondents and provided evidence directly contradicting respondents' supporting evidence. Although she provides a string of record cites, she does not provide any reasoning to support this conclusory argument, let alone connect that reasoning to individual facts. This claim is forfeited. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287.)
C. Hermanson Has Forfeited Her Claim That She Objected to and Disputed All Respondents' Evidence.
Hermanson contends respondents' separate statement contained "no credible, admissible evidence." With only slightly more specificity, she claims respondents' evidence "states objectionable generalizations, unsupported legal opinion and conclusions", the McLeish, Foshee, Piccinetti and Lee declarations are completely inadmissible and "none of the documentary evidence" proffered by respondents was properly authenticated. Again, even a cursory examination of the separate statement of facts shows her extremely broad contention to be untrue. Further, she does not identify any specific instances of, for example, unsupported legal opinion and conclusions, or explain why any particular authentication was improper. She has forfeited these claims. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287.)
D. Respondents Were Not Required to Show Hermanson Could Not Establish Each Element of Her Case; She Has Forfeited the Remainder of Her Claims Under the Heading Concerning Shifting the Burden of Proof.
Hermanson contends respondents did not shift the burden of proof to her because they "failed to show that [she] could not establish each element of [her] prima facie case for each cause of action alleged in her Complaint." There is no requirement that respondents make such a showing. The summary judgment statute provides that a "defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established . . . ." (Code Civ. Proc., § 437c, subd. (p)(2); see also id., subd. (o)(1), italics added.)
Hermanson then discusses the law regarding inferences and summary judgment and contends that "[m]easured by these standards, Respondents' motion for summary judgment is clearly inadequate and should have been denied. Instead, the Trial Court disregarded the patent defects within Respondents' moving papers [citations], and supporting Declarations, ignored the clearly disputed facts [citations], and improperly shifted the burden of proof to Appellant." The defects are not patent and Hermanson is not excused from the requirement of explaining the reasoning by which she reaches her conclusions, and applying that reasoning to specific statements. She has forfeited this claim. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287.)
II. Hermanson's Discovery-related Claims Either Lack Merit or Have Been Forfeited.
Hermanson contends the trial court was required to deny respondents' motion because her trial counsel submitted a declaration to the court showing that facts essential to the opposition existed but could not be presented at that time, due to respondents' refusal to comply with discovery. It appears from her record citations that Hermanson is referring to a motion she filed after the deposition of McLeish.
Code of Civil Procedure section 437c, subdivision (h), upon which Hermanson relies, provides in full: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just."
The court had previously continued the summary judgment motion to allow Hermanson to take McLeish's deposition, and had instructed the parties to call the court during the deposition if there were problems. Hermanson took McLeish's deposition on February 12, 2020. She did not contact the court during that deposition. Two weeks later, she filed her declaration seeking to have respondents' motion denied because McLeish refused to answer, or was instructed by counsel not to answer, questions about a claimed Health Insurance Portability and Accountability Act of 1996 (HIPAA) violation. As the trial court correctly ruled, questions about HIPAA violations were not relevant to the summary judgment motion. The scope of such a motion is delineated by the pleadings, and Hermanson had not alleged her theory about a HIPAA violation in her complaint. Thus, facts about HIPAA violations, even assuming they existed, were not essential to justify Hermanson's opposition to summary judgment.
We note Hermanson raises other discovery issues at the end of her brief, in a section not included in her table of contents. We consider them here.
The trial court ordered NNI to produce the person most qualified (PMQ) to respond to Hermanson's deposition notice. Although NNI sent Steven McCord, its associate director of Employee Relations, Hermanson claims he was not knowledgeable about all categories in her notice of deposition. She contends the trial court erred in denying her motion for NNI to comply with the court's earlier order to produce a PMQ "knowledgeable as to all categories identified in [her] notice of deposition." She contends McCord was not a PMQ because he was fired after her termination and so had no personal knowledge of her or the basis for her termination, "could not respond to questions a PMQ would be expected to have knowledge of, and was not aware if any of the documents being produced at his deposition were in any way compliant with the Trial Court's prior Order."
As the trial court correctly explained, a PMQ need not have personal knowledge. Witnesses may familiarize themselves with the information and documents available to the corporate entity. (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396- 1397.) Further the PMQ need not personally make an inquiry to determine that all responsive documents are produced. (Ibid.) Another person in authority may do that. (Ibid.) As the trial court pointed out, Hermanson had scheduled the depositions of persons who did have personal knowledge of her termination. Thus, the trial court did not abuse its discretion in denying Hermanson's motion to compel.
Hermanson also contends the trial court abused its discretion in granting a protective order preventing her from deposing a PMQ #2. Respondents sought the order in pertinent part because the topics identified in the deposition notice involved legal contention questions. The trial court granted the motion in reliance on Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255 (Rifkind), which clearly and specifically holds that asking legal contentions at a deposition is "unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise. If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. The party answering the interrogatory may then, with aid of counsel, apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions. . . . It is a major reason why, as Professor Hogan puts it, '[t]aking the oral deposition of the adverse party is neither a satisfactory nor a proper way to satisfy' the interrogating party's desire to learn which facts a party thinks support its specific contentions . . . ." (Id. at p. 1262.)
Hermanson acknowledges "Rifkind holds that a party cannot ask contention questions at deposition, however, it does not preclude a party from listing categories of testimony for which a PMQ is to be designated that encompass contentions being made by another party." This statement lacks the context needed to make it intelligible. Respondents, reasonably enough, understand Hermanson to mean that she can list legal contention questions in the notice and have a PMQ show up, but then ask them other questions. This is what Hermanson's counsel argued with respect to Rifkind in the trial court. If this is what she meant, she is wrong. There is no authority in Rifkind or elsewhere which permits a party to notice a deposition for questions that cannot be asked, with the intent to ask other unspecified questions.
If by "contentions made by another party," Hermanson means she can ask questions about her own legal contentions, she did not make this argument in the trial court and there is no support for it in Rifkind. She would still be asking a legal contention question and it would suffer from all the flaws identified in Rifkind. It would require the deponent to "rationalize[] the facts as supporting a contention." (Rifkind, supra, 22 Cal.App.4th at p. 1262.) As the court explained in Rifkind, such information is properly obtained through interrogatories, which can be prepared with the assistance of counsel. (Ibid.)
We question whether this was Hermanson's primary objective in noticing the deposition. However, a number of her requests followed the format of asking for information "relating to, supporting or refuting" a contention by NNI, for example "[information] relating to, supporting or refuting that NNI's conduct towards Plaintiff was not sufficiently severe or pervasive as to alter the conditions of employment and create an abusive working environment." We will assume for the sake of argument that her requests for information "refuting" NNI's contentions is the equivalent of asking for information supporting her contentions.
Hermanson also contends the trial court erred in granting NNI's motion to prevent her from taking the deposition of NNI's in-house counsel who had been involved in the investigation of Hermanson's termination; NNI's chief compliance officer whose department was investigating McLeish for compliance issues; and the human resources officer responsible for investigating and processing Hermanson's disability claim. The trial court found Hermanson had failed to establish that counsel's participation in the investigation involved routine fact-finding, or that no other means existed to obtain information about the investigation. Hermanson makes no attempt to explain how the trial court was incorrect factually or legally. Similarly, the trial court found Hermanson had not met the requirements for deposing the chief compliance officer, who qualified as an "apex" employee without personal knowledge of the facts at issue. Again, Hermanson makes no attempt to explain how the trial court was incorrect factually or legally. She makes no attempt for the disability employee as well. She has forfeited all these claims. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287.)
III. Hermanson Has Forfeited Her Claims of Error Concerning the Trial Court's Rulings on Evidentiary Objections in Connection With the Summary Judgment Motion.
Hermanson contends the trial court erred in overruling her objections to respondents' evidence and sustaining respondents' objections to her evidence. She has forfeited these claims by making only broad legal arguments which she fails to connect to specific evidence in the record. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th at pp. 86-287.)
With regard to her objections, she claims statements in the McLeish's declaration were hearsay, were not within the personal knowledge of the declarant, were irrelevant, required speculation or were improper legal opinions or conclusions. This is the entirety of her claim of error. She has not identified any specific statement and explained how the trial court's ruling was incorrect. For example, as respondents point out, Hermanson twice objected on hearsay grounds to McLeish's descriptions of her own actions. Hermanson does not explain how these statements meet the legal definition of hearsay, which is "a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).)
The statements are: "Because I took over direct management of Ms. Hermanson, I continued assisting Compliance with their review" and "I completed a Termination Meeting Synopsis memorializing my termination telephone meeting with Ms. Hermanson."
Concerning respondents' objections, she contends the trial court abused its discretion in finding that Rodney Carr was not qualified as an expert. Carr worked in pharmaceutical sales and marketing for 20 years, including four years for NNI in a position similar to the one held by McLeish. Even assuming for the sake of argument that his work experience qualified him as an expert on supervising sales representatives at NNI, very little of his declaration is focused on that narrow area. As respondents point out, Carr opined, for example, that Hermanson was not an at-will employee; this is a legal opinion. He also opined that Hermanson "became disabled due to Defendant McLeish's conduct," which is a medical opinion. Hermanson makes no effort to separate the wheat from the chaff in her claim that the trial court abused its discretion in sustaining all of respondents' objections to Carr's declaration. She does not identify specific statements by Carr and explain how they related to his expertise gained from working in pharmaceutical sales.
IV. Hermanson Has Forfeited Most of Her Claims of Error Concerning the Grant of Summary Adjudication on Her Individual Causes of Action and the Remainder Lack Merit.
Hermanson contends triable issues of material fact exist as to all her claims and so the trial court erred in granting summary judgment.
A. Summary Adjudication on the First and Second Contract-based Causes of Action Was Properly Granted Because No Contract Existed to Terminate Only for Cause.
Hermanson contends the trial court erred in adjudicating her first cause of action for breach of contract and her second cause of action for breach of the implied covenant of good faith and fair dealing in favor of respondents because she offered facts sufficient to overcome the statutory presumption of at-will employment (Lab. Code, § 2922) and so created a triable issue of material fact. The statutory presumption is simply irrelevant where, as here, Hermanson signed an express at-will agreement. No presumption is necessary.
Hermanson's complaint alleged that when she was hired, NNI expressly and orally promised she would not be terminated as long as she "performed satisfactorily and obeyed all reasonable and lawful directions, rules and regulations of her employment." Respondents moved for summary adjudication of these causes of action on the ground that Hermanson had signed her offer letter which expressly specified she was an at-will employee. This letter also provided "any other written or oral promises made regarding employment are not effective unless it is expressly set forth in a document signed by an officer of the company."
Hermanson opposed the motion on the ground she did not know what an at-will employee was. She also stated in her declaration in opposition to the summary judgment motion that when she was promoted in 2015, NNI promised her she would not be terminated without cause, and her managers also promised her she would not be terminated without cause, although she did not clearly raise this claim in her opposition.
The trial court found a written at-will agreement cannot, as a matter of law, be overcome by an oral or implied agreement to only terminate for cause. We reach the same conclusion.
There"' "cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results." [Citations.] The express term is controlling even if it is not contained in an integrated employment contract. [Citation.] Thus, the . . . at-will agreement precluded the existence of an implied contract requiring good cause for termination.'" (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38.) We note the plaintiff in Starzynski relied on oral assurances from his supervisor as the basis of the claimed agreement to terminate only for cause, but the Court of Appeal held the written employment agreement forbade such a modification to the terms of employment. (Id. at pp. 38-39.) That is the case here as well.
On appeal, Hermanson acknowledges her claim for breach of the implied covenant of good faith and fair dealing was based on the existence of an agreement to terminate only for cause. Since we have found no such agreement existed, summary adjudication was properly granted on this cause of action as well. As the trial court correctly recognized, a contract is a prerequisite to a claim for a breach of the implied covenant of good faith and fair dealing. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350.)
B. Hermanson Has Forfeited Her Claim That Summary Adjudication on the Seventh Cause of Action for Intentional Infliction of Emotional Distress Was Improper.
Hermanson contends she presented evidence of conduct by respondents that exceeds "all bounds of that usually tolerated in a civilized community" and so the trial court erred in granting adjudication in favor of respondent on her claim for intentional infliction of emotional distress. She cites to approximately 17 pages of her separate statement of facts in opposition to respondents' motion, but does not explain how any act described therein is outrageous or excessive. To give just one example of the acts included in those pages, Hermanson stated that when McLeish sent her a calendar invitation requesting a conference call, McLeish did not tell her that Foshee, a manager in Employment Relations, "would be a party to the call and made the call seem routine." As a matter of law, this is not outrageous conduct. (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Because Hermanson's conclusory arguments that all acts in the 17 pages of her separate statement are excessive and outrageous "are not supported by pertinent legal authority or fail to disclose the reasoning by which [she] reached the conclusions [she] wants us to adopt," she has forfeited this claim. (City of Santa Maria, supra, 211 Cal.App.4th at p. 287; see Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed].)
To the extent Hermanson claims some of the (unspecified) listed actions constituted discrimination and harassment and so would constitute outrageous conduct, as we discuss below, summary adjudication in favor of respondents was properly granted on the separate claims of harassment and discrimination.
C. Hermanson Has Forfeited Her Claim That Summary Adjudication Was Improper on Some Issues in Her Extremely Broad Fourth Cause of Action for FEHA Violations and Has Not Shown Error on the Remaining Issues.
Hermanson's fourth cause of action includes allegations of gender discrimination and harassment, disability discrimination and harassment, and retaliation. She contends in heading D.3 that her discrimination, retaliation and harassment claims present genuine issues which prevent summary adjudication of all causes of action, but she devotes only two and a half pages of her brief to this argument. She contends very broadly that even assuming for the sake of argument that respondents produced sufficient evidence to shift the burden of proof to her, the evidence she offered established McLeish engaged in a continuous course of harassing and discriminating conduct which created a hostile work environment. She contends the evidence also established she was disabled within the meaning of FEHA. She contends the trial court simply ignored these facts.
1. Gender-based Discrimination and Harassment Claims.
Hermanson offers no analysis to support her contention that there was evidence of gender-based discrimination and harassment which was ignored by the court. She simply claims that her evidence established that McLeish engaged in "a continuous course of harassing and discriminating conduct throughout the time she was working with [Hermanson]." She does not expressly claim in her brief that this conduct was motivated by her gender. This broad hyperbole is not a substitute for legal analysis applied to the facts of the case. Further, with respect to the discrimination claim, Hermanson does not address the trial court's finding that respondents established a non-gender discriminatory reason for Hermanson's termination, specifically her falsification of call records, and that Hermanson failed to show the reason was pretextual. She has forfeited these claims. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287.)
2. Retaliation Claims.
Although Hermanson refers to the retaliation claim in a heading, she does not discuss this claim at all in the text under the heading. She has forfeited this claim. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th at pp. 286-287.)
3. Disability-based Discrimination and Harassment Claims.
Hermanson does address the trial court's finding that she did not have a disability within the meaning of FEHA, and does dispute specific factual findings of the court.
"To establish a prima facie case of mental disability discrimination under FEHA, a plaintiff must show the following elements: (1) She suffers from a mental disability; (2) she is otherwise qualified to do the job with or without reasonable accommodation; and (3) she was subjected to an adverse employment action because of the disability." (Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 84.) "[A]n employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a mental disability under FEHA." (Id. at p. 85.)
The trial court found Hermanson had not established a prima facie case of disability discrimination because she had not established she was disabled within the meaning of FEHA. The court found that what Hermanson described as a disability was an inability to work for McLeish due to McLeish's criticism of her, and this did not qualify as a disability under FEHA. We reach the same conclusion as the trial court.
Hermanson contends Higgins-Williams does not apply because she suffered physical effects that limited her life activities and caused her to lose 15 pounds. We see nothing in Higgins-Williams that limits its application to situations where an employee's stress and anxiety are only felt during work hours. It is almost certain an employee in the situation described in that case would continue to experience stress and anxiety after he left the workplace for the day, knowing he would return to the same situation the next work day. We also see nothing in Higgins-Williams which limits its application to situations where the stress and anxiety produce no physical effects such as sleeplessness or weight loss.
Further, even assuming that Hermanson were disabled, there is absolutely nothing to indicate she was terminated because of her stress-based disability. There is also no evidence she was harassed due to any such disability. McLeish declared she decided to terminate Hermanson almost immediately after the May 19, 2016, 8:00 a.m. phone call discussing Hermanson's record keeping practices. McLeish also declared she was not aware Hermanson had spoken to human resources or made any complaints about her. This evidence is undisputed. (See Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247 [plaintiff must show employer was aware of her disability].)
Hermanson claims she stated in her declaration in opposition to summary judgment that she reported her "illness" to NNI's human resources hotline on May 18, 2016, and so NNI had actual notice of her disability before May 19, but the trial court simply ignored this evidence. Hermanson actually declared that she left a "message" on the hotline stating in part that she was "suffering from stress, anxiety, having trouble sleeping, that I never had issues with my prior managers; and I was seeking medical assistance for the stress." Hermanson does not provide a record citation showing the time she left the message, or any evidence of when the message was heard by an NNI employee; she also fails to cite any legal authority for how rapidly an employer is expected to communicate notice of an employee's disability to the employee's supervisor or coworkers. Further, Hermanson's own account of the message does not use the word disability and does not describe a disability: It simply describes difficulty working for a particular manager. This was not sufficient as a matter of law to put NNI on notice that Hermanson had a disability under FEHA. (See Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237 (Brundage) ["While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. 'Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice . . .' "].) It is undisputed that Hermanson first provided documentation of her disability due to work to NNI on May 23, 2016.
To the extent that Hermanson contends respondents should have been aware of her disability because she lost 15 pounds in a few months, we have no way of assessing how visible such weight loss would have been. Further, weight loss is often viewed as desirable, and can occur because a person voluntarily changes behavior to lose weight. A loss of 15 pounds in a few months does not suggest a medical issue or disability. (Brundage, supra, 57 Cal.App.4th at p. 237 [knowledge is only imputed to employer when it is the only reasonable inference from the known facts].)
As for harassment, Hermanson did not describe any act of harassment occurring after May 18, 2016. This is not surprising as it is undisputed she took a pre-planned vacation day on May 20 and did not thereafter return to NNI. Thus, there is no evidence NNI harassed her due to disability.
To the extent Hermanson contends the May 19 phone call was harassment, simply including a person from Employment Relations and making the call sound routine are not harassment as a matter of law.
D. Summary Adjudication Was Proper for the Fifth and Sixth Causes of Action for Failure to Engage in the Interactive Process and Failure to Accommodate.
As we discuss above, even under Hermanson's account of events, the earliest NNI could possibly have known of any disability was May 18, 2016. Hermanson worked for one day after that, took a pre-planned vacation day, and never returned. Hermanson sought a leave of absence beginning May 20, and NNI processed her short-term disability application. Hermanson has not shown she requested any accommodation that NNI failed to provide. Hermanson does suggest NNI should have made known to her any other suitable job opportunities with NNI and determined whether she was interested in or qualified for such jobs. She has not offered any evidence that any such opportunities existed, let alone that she would have been interested in or qualified for the jobs. Summary adjudication was properly granted in favor of respondents.
She has forfeited any other claims related to this cause of action. (Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited to issues that are adequately briefed]; City of Santa Maria v. Adam, supra, 211 Cal.App.4th at pp. 286-287.)
E. Summary Adjudication Was Properly Granted on the FEHA-dependent Third and Eighth Causes of Action for Wrongful Termination and Unfair Competition.
Hermanson implicitly acknowledges her wrongful termination and unfair competition claims are based on her FEHA claims. Because we have found summary adjudication in favor of respondents was proper on the FEHA claims, summary adjudication in favor of respondents was necessarily also proper on the wrongful termination and unfair competition claims. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [wrongful termination]; Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [unfair competition].)
F. Hermanson Has Forfeited Her Claim That Summary Adjudication Was Improper for the Tenth Cause of Action for a Violation of Labor Code Section 1198.5 .
Under Labor Code section 1198.5, an employee has the right to inspect or receive a copy of his or her personnel file and records which relate to her performance. Hermanson did request her file, on July 18, 2016. She claimed she only received part of the file on August 22, 2016. Relying on subdivision (n) of section 1198.5, respondents moved for summary adjudication on this claim on the ground that they were not required to comply with this request because Hermanson had filed a workers' compensation claim on June 3, 2016. Hermanson did not present any argument on this issue, and so the trial court granted summary adjudication in favor of respondents.
Hermanson now contends on appeal that Labor Code section 1198.5, subdivision (n) does not apply to workers' compensation claims. She forfeited this claim by failing to raise it in opposition to the summary judgment motion. (Arnall v. Superior Court (2010) 190 Cal.App.4th 360, 373.)
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
We concur: GRIMES, Acting P. J., WILEY, J.