Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., No. BC376642, Aurelio Muñoz, Judge.
Law Offices of Leo James Terrell and Leo James Terrell for Plaintiff and Appellant.
K&L Gates, Thomas H. Petrides and Matthew B. O’Hanlon for Defendant and Respondent.
GRIMES, J.
INTRODUCTION
Plaintiff Paula Inman appeals from the judgment entered against her after the trial court granted the motion for summary judgment or summary adjudication brought by defendant Westwood College (Westwood). Inman contends that there remain triable issues of fact with regard to her claims of sexual harassment, failure to investigate sexual harassment, retaliation, intentional infliction of emotional distress, and negligence, all arising from her employment with Westwood as a sales representative. After a de novo review, we affirm the judgment of the trial court.
BACKGROUND
1. The First Amended Complaint
Inman’s first amended complaint (complaint) alleged five causes of action arising from alleged sexual harassment by coworkers and retaliation by her supervisor. Count 1 alleged sexual harassment under a hostile environment theory; count 2 alleged a failure to investigate Inman’s claim of sexual harassment; count 3 alleged retaliation for making her claim; count 4 alleged intentional and negligent infliction of emotional distress; and count 5 alleged negligence.
The complaint alleged that Inman was an African-American woman employed as a sales representative by Westwood in 2006. Before July 8, 2006, Inman had received good performance reviews and no complaints or disciplinary actions. Her employer had never criticized her performance or work production. Then, on July 8, 2006, a coworker, Omar Mares, made sexually explicit comments to her, which Inman reported the next day to her supervisor, Casey Fowlie. The complaint alleged that after Inman complained about the initial incident, Mares continued to sexually harass her until Westwood terminated his employment on August 8, 2006. Beginning August 3, 2006, Inman began receiving complaints about her work performance from her supervisors.
The complaint alleged that from August 14, 2006, to September 6, 2006, the terms and conditions of Inman’s employment were changed in retaliation for her complaint, and because she was African-American, as demonstrated by the following: She was not given information crucial to meeting her production goals; she was asked to sign an “EOM” letter; and on September 6, 2006, she was removed from her supervisor’s e-mail distribution list by which he communicated to other “team members.” The complaint also alleged that Inman’s supervisor refused to assign her “leads, ” ostensibly due to her low lead “workage, ” but continued to assign leads to other employees with lower lead “workage.” Then, when Inman requested a transfer to Westwood’s Texas facility, the request was denied August 17, 2006, on the grounds that her production was low and there was sufficient staff in Texas.
An EOM (end of month) letter is a spreadsheet showing a sales representative’s sales numbers and goals, marked with a supervisor’s comments.
Although not mentioned in the complaint, it was undisputed that Inman took a medical leave on September 6, 2006, and has not returned to work.
The complaint alleged that as a result of Westwood’s actions, Inman suffered emotional and mental anguish and a loss of earnings, and that she has incurred medical expenses. In September 2006, Inman filed a charge of discrimination with the California Department of Fair Employment and Housing and the Equal Employment Opportunities Commission and, in October 2006, received a right-to-sue letter.
Westwood entered a general denial to the allegations of the complaint and asserted several affirmative defenses.
2. Westwood’s Motion and Undisputed Facts
In October 2008, Westwood filed a motion for summary judgment or summary adjudication of each cause of action, on the ground that undisputed facts showed that Inman would be unable to prove her causes of action.
In addition to its statement of undisputed facts, Westwood admitted and denied Inman’s lengthy counterstatement of undisputed facts. Because the trial court did not rule on the parties’ evidentiary objections, we include partially admitted material facts, as well as facts neither admitted nor denied, but which merely drew an objection.
The parties did not obtain or demand rulings from the trial court on their objections, thus failing to preserve them for appeal. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236-238.)
Inman was employed by Westwood as a sales representative, beginning March 6, 2006. Her duties consisted of finding new students to enroll in Westwood’s various campuses in Southern California. To do so, she contacted leads either supplied to her via e-mail by Westwood management or generated on her own. In April, May, and June 2006, Westwood did not prepare EOM letters regarding Inman’s sales performance.
We strictly construe Westwood’s declarations and evidence, and liberally construe Inman’s declarations and evidence. (See Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)
In his declaration filed in support of Westwood’s motion, Fowlie, Inman’s supervisor, stated that he was a vice president of Westwood’s parent corporation, director of high school admissions for California, and the supervisor of 18 Southern California “admissions representatives.” He hired Inman at one of the highest base rates of pay for an admissions representative and expected her to produce a minimum number of student applications per month, but she never reached her monthly goals. Attached to Fowlie’s declaration are two e-mails dated June 20, 2006, and July 21, 2006, expressing concern that Inman was not achieving her sales goals.
On July 8, 2006, when Inman and another sales representative, Omar Mares, were working at a Westwood open house, Mares made an inappropriate sexual remark to Inman. He said, “When was the last time you had a Mexican all up in you?” In an attempt to end the conversation, Inman told Mares she was attracted only to Black men, but Mares replied, “Don’t underestimate the size of a Mexican.” When Inman repeated her statement, Mares said, “You need a tall big man to handle all of that you’re packing.”
Earlier that year, the assistant director of high school admissions, Raymond Alvarez, had reported to Fowlie and Jaelyn Young of Westwood’s human resources department that he had overheard Mares make an inappropriate remark to a woman employee about her sexual orientation, and that he had seen Mares give an overly long-lasting hug to a prospective female student while rubbing her back.
Inman complained to her supervisor, Fowlie, and he requested that she submit a written complaint. On July 9, 2006, Inman e-mailed a detailed account of her complaint to Fowlie, and on July 10, 2006, Fowlie forwarded a copy to Young. Young met with Mares on July 12, 2006, and Mares admitted to having made the comments. On July 17, 2006, Fowlie issued a written warning to Mares to have no personal contact while alone with Inman.
After he received Inman’s July 9, 2006, e-mail, Fowlie told Inman she would be expected to meet with a human resources representative. Although Inman informed Fowlie that she picked her son up everyday at 3:00 p.m., Fowlie told her to meet with Young the following Wednesday at 3:00 p.m. She complied, but no one showed for the meeting, the human resources employees knew nothing about it, and Young, the human resources manager, was unreachable. Young could not be reached because she was interviewing Mares about Inman’s complaint, and Mares had arrived late for the interview. Young interviewed Inman by telephone immediately after completing her interview of Mares.
Fowlie discussed the investigation with Young on July 12 and 13, 2006. Fowlie discussed two possible courses of action with Young and his supervisor, Bob Fingerlin -- either issuing a written warning to Mares or terminating his employment. Fowlie issued a written warning, which Mares signed and returned July 24, 2006.
A week or more later, after a sales meeting in which Inman perceived that Mares gave her “sexual looks, ” Inman telephoned Young to report the new incident. Shortly after that, a Westwood vice president displayed his middle finger to Inman while she was working. Inman reported the gesture to Fowlie.
A few days later, when Inman walked past the financial aid office, Mares smirked at her, looking her up and down, and made “eye contact in a sexual manner.” Inman reported the incident to Young, who did not ask for details or a written report.
In late July or early August, Fowlie sent Inman her first EOM letter, criticizing her sales performance. Fowlie admitted that he had failed to follow Westwood policy regarding EOM letters when he sent one to Inman.
Prior to August 2006, Inman had received sales leads everyday by e-mail. In August, Inman discovered a “glitch” in the system -- she was not receiving leads, and was the only sale representative not getting them. Fowlie then sent her 47 leads, but they were people who had already been contacted by Westwood sales representatives.
In late July 2006, Inman informed Fowlie that she wanted to transfer to Westwood’s Texas facility, and at Fowlie’s suggestion, Inman telephoned the director of admissions there, Ryan Daily. Daily then telephoned Fowlie, who told him that he was “okay” with the transfer, and that although Inman was one of the highest paid sales representatives, “‘she was not a top performer.’” After this conversation, Inman was not transferred to Texas.
In Young’s declaration filed in support of the motion, she stated that in 2006, she was Westwood’s Senior Human Resources Manager, assigned to both California and Texas. On July 12, 2006, the same day she interviewed Mares and Inman, Young discussed with Fowlie the alternatives of terminating Mares’s employment or issuing him a written warning. On July 22, 2006, Young learned that Fowlie had issued a written warning. After discussions with Fingerlin and Scott Ferguson, director of human resources, the three decided to terminate Mares’s employment, effective August 7, 2006. On August 15, 2006, after discussing with Fowlie his concerns about Inman’s sales performance, Young approved Fowlie’s intention to speak to Inman regarding her performance. Inman went on medical leave beginning September 6, 2006.
3. Additional Evidence Submitted by Inman
See footnote 3, ante, at page 4.
Among other evidence, Inman submitted her declaration and excerpts from the depositions of Mares and Fowlie. Mares admitted that he had been convicted of driving with a suspended license in 1997 and in March 2005. He began his employment with Westwood in August 2005. Fowlie testified that although sales representatives are required to have a driver’s license and automobile insurance, he did not know that Mares’s driver’s license had been suspended in March 2005, or that he had no insurance. After Fowlie discussed alternatives with Young in mid-July, he did not agree that Mares’s employment should be terminated, and he sent Mares a warning letter.
Fowlie admitted that in March, April, and May, he did not prepare EOM letters for Inman to sign. Fowlie did not remember what he had done in June, but he prepared such letters for July and August. However, he admitted that at the time he spoke to Ryan Daily about Inman’s request to transfer to Texas, there existed no negative written report regarding Inman’s work performance. On September 3, 2006, Inman complained to him that she felt that Westwood was retaliating against her. On the same day, Fowlie sent her an EOM letter regarding her August sales.
In her declaration, Inman stated that when she was hired, Fowlie told her that she would be promoted in 90 days, with a salary increase. However, after she complained about the Mares incident, Fowlie did not follow through on his promise. Soon after her complaint, Fowlie excused Inman from the next weekly meeting of sales representatives, but failed to inform her as to what was discussed. When she was required to attend another weekly meeting soon after that, Mares was there, and gave her “‘sexual looks’” during the meeting. It was a few days after she complained about the meeting that Westwood Vice-President Millman displayed his middle finger to Inman.
4. Judgment and Appeal
The trial court granted the motion for summary judgment and incorporated its tentative ruling as its written decision. The court held that Inman’s evidence did not show a pattern of continuous pervasive sexual harassment to amount to a hostile work environment, and that because Inman’s remaining causes of action were based upon the alleged hostile work environment, they failed as well. The court also held that there was no evidence of retaliation or negligence resulting in damages. Judgment was entered against Inman on February 17, 2009, and Inman filed a timely notice of appeal April 15, 2009.
DISCUSSION
1. Standard of Review
We review the trial court’s decision de novo, considering all of the uncontradicted inferences reasonably drawn from the evidence. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) Because the court granted a defense motion for summary judgment, “we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. [Citations.]” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We view the evidence in the light most favorable to the losing party, in this case, Inman. (Ibid.)
As the defendant who moved for summary judgment, Westwood was required to make a prima facie showing of the nonexistence of any triable issue of material fact, by producing evidence to show either that one or more elements of Inman’s cause of action cannot be established, or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) To make its prima facie showing, Westwood was required to produce evidence that either conclusively negated an element of Inman’s cause of action, or established that she did not possess, and could not reasonably obtain, sufficient evidence to establish her cause of action. (Id. at p. 855.) The latter showing can be made with evidence, such as admissions by Inman, “following extensive discovery to the effect that [s]he has discovered nothing.” (Ibid.)
Once Westwood successfully made a prima facie showing, the burden shifted to Inman to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th at p. 850.)
2. Count 1: Sexual Harassment
The California Fair Employment and Housing Act (FEHA) prohibits sexual harassment in the workplace. (Gov. Code, § 12940, subd. (j)(1); Hughes v. Pair (2009) 46 Cal.4th 1035, 1042 (Hughes).) “[T]he prohibited conduct ranges from expressly or impliedly conditioning employment benefits on submission to, or tolerance of, unwelcome sexual advances to the creation of a work environment that is ‘hostile or abusive to employees because of their sex.’ [Citation.] Thus, similar to the federal law’s Title VII, California’s FEHA ‘recognize[s] two theories of liability for sexual harassment claims... [including] “hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.”’ [Citations.]” (Hughes, at pp. 1042-1043.)
Inman first argues a respondeat superior theory. She contends that Westwood is liable for Mares’s sexual harassment, because management knew about the two incidents in early 2006, when Mares made an inappropriate comment to a coworker about her sexual orientation, and gave a female student an inappropriate hug. However, before reaching the issue of respondeat superior, it must appear that there was actionable sexual harassment in the first place. (Gov. Code, § 12940, subd. (j)(1); Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) Thus, the discussion must begin with Inman’s final contention that the trial court erred in finding that the conduct to which Inman was subjected was not actionable sexual harassment.
Westwood did not dispute that Mares subjected Inman to unwelcome abuse. Mares admitted that he made the sexual remarks Inman had described. In a sales meeting a week or two after reporting the incident, Inman perceived that Mares gave her “‘sexual looks, ’” and shortly after that, when Inman walked past the financial aid office, Mares smirked at her, looking her up and down, and made “‘eye contact in a sexual manner.’” It was also undisputed that a Westwood vice president, Ron Millman, extended his middle finger to Inman while she was working. Westwood did not seek to establish by its motion that the conduct did not happen, but asserted that the remarks and conduct were insufficiently severe or pervasive to create an abusive working environment.
Inman acknowledges that in order to establish a cause of action for sexual harassment, a plaintiff must show: “(1) she was subjected to verbal or physical contact of a sexual nature, (2) the conduct was unwelcome, and (3) the abusive conduct was sufficiently severe or pervasive so as to alter the conditions of her employment thus creating an abusive working environment. [Citation.]” (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 161, italics omitted.)
“Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. [Citation.]” (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 609.) Factors that may be considered in determining what is “sufficiently pervasive” are: “(1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred. [Citation.]” (Id. at pp. 609-610; see also Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 141-142 (Mokler).)
With such factors in mind, we note that Inman was not subjected to physical touching or even a threat of violence. There was one occasion on which Mares made sexually explicit comments, two incidents of sexual looks or leering, and one quick middle finger gesture by a manager. The incidents were few and took place during a four- or five-week period.
The facts in this case are comparable to those in Hughes, supra, 46 Cal.4th at pages 1046-1049, in which the California Supreme Court rejected a claim of sexual harassment brought under the analogous statute, Civil Code section 51.9. There, the defendant telephoned the plaintiff to invite her son to a private museum showing, called her “‘sweetie’” and “‘honey, ’” and said he thought of her “‘in a special way, if you know what I mean.’” (Hughes, at p. 1040.) In the same conversation he complimented the plaintiff’s beauty, suggested that he would do her a favor if she were “‘nice’” to him, and gave her his home telephone number to call when she was ready to give him “‘what I want.’” (Ibid.) When the plaintiff said that “his comments were ‘crazy, ’ defendant said: ‘How crazy do you want to get?’” (Ibid.) That evening at the museum, with his son and the plaintiff’s son present, the defendant told the plaintiff: “‘I’ll get you on your knees eventually. I’m going to fuck you one way or another.’” (Ibid.) The court held that the defendant’s conduct was neither severe nor pervasive.
These facts are also comparable to those found insufficient in Mokler, where, as in this case, there were no physical threats. (See Mokler, supra, 157 Cal.App.4th at p. 145.) In Mokler, a county supervisor had daily contact with the agency that employed the plaintiff. The supervisor asked plaintiff about her marital status and, when she said she was single, called her an “‘aging nun.’” (Id. at pp. 131-132, 145.) A few days later, the supervisor acted flirtatiously while holding the plaintiff’s arm, complimenting her suit and legs, and looking her up and down. (Id. at pp. 132, 145.) Finally, the following month, the supervisor put his arm around the plaintiff, rubbing her breast with his arm as he did so, and then making a crude but nonsexual remark when she pushed herself away. (Id. at pp. 132, 145.) These acts were found not sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. The Mokler court reversed the trial court’s order denying judgment notwithstanding the verdict on the claim for sexual harassment.
Inman contends that the abuse in this case was sufficiently severe or pervasive to create a hostile work environment, because it was worse than the abuse described in Mokler. We do not agree that the facts here are more egregious than in Mokler. Moreover, it remains that a few isolated incidents cannot be considered pervasive. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284 (Lyle).) Further, a few isolated incidents of harassing conduct may not be considered severe without a physical assault or the threat of violence. (Ibid.; see Hughes, supra, 46 Cal.4th at p. 1049.)
Inman contends that very little evidence is required to defeat a motion for summary judgment. To the extent she is suggesting that in employment cases the question whether sexual harassment is pervasive or severe must always be a question of fact for the jury, we disagree. When a defendant has shown that the employee-plaintiff cannot establish a prima facie case of hostile workplace environment sexual harassment, and the employee does not raise a triable issue of fact, summary judgment is properly granted. (See Lyle, supra, 38 Cal.4th at pp. 294-295.)
The undisputed facts established that the abuse Inman suffered was neither pervasive nor severe, and Inman failed to raise a triable issue of fact regarding hostile environment sexual harassment. We thus conclude that the trial court did not err in granting summary adjudication of the first cause of action.
3. Count 2: Failure to Investigate
Inman contends that she raised a triable issue of fact as to her second cause of action for failure to investigate sexual harassment. An employer who knows or should have known of sexually harassing conduct and fails to take immediate and appropriate corrective action may be liable for the resulting damages, pursuant to Government Code section 12940, subdivision (j)(1). However, because the statute does not create a stand-alone tort, the employee has no cause of action for a failure to investigate sexual harassment, unless actionable sexual harassment occurred. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 288.) As none occurred here, we conclude that the trial court did not err in granting Westwood’s motion for summary adjudication of the second cause of action.
In any event, it is undisputed that Westwood promptly investigated Inman’s complaint of sexual harassment and took corrective action.
4. Count 3: Retaliation
Inman contends that the trial court erred in granting summary adjudication of her third cause of action for retaliation for reporting sexual harassment. To establish a prima facie case of unlawful retaliation, an employee must show that “(1) he or she engaged in a ‘protected activity, ’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).) In its motion, Westwood sought to show that Inman would be unable to establish a prima facie case of unlawful retaliation, because the facts upon which she based her cause of action did not meet the accepted definition of “adverse employment actions, ” and Westwood’s evidence established “a legitimate, non-pretextual business reason [for] its decisions.”
“Adverse employment action” is a “shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action” for retaliation. (Yanowitz, supra, 36 Cal.4th at p. 1049.) The appropriate standard for determining whether an employment action is sufficiently adverse is whether it “materially affects the terms, conditions, or privileges of employment.” (Id. at p. 1051.) An action may materially affect the terms, conditions, or privileges of employment, even if it does not “impose an economic detriment or inflict a tangible psychological injury upon an employee.” (Id. at pp. 1052-1053 & fn. 11.)
In the complaint and in her deposition, Inman identified the following acts of retaliation: Westwood did not give her sales leads by e-mail in August 2006; Westwood did not grant her request in late July and August 2006 to make a lateral transfer to Texas; Inman’s supervisor sent the first EOM letter to her at the end of August, critical of her performance, and asked Inman to sign it; and after Inman went on medical leave on September 6, 2006, her supervisor removed Inman from the group e-mail distribution list.
In its motion, Westwood argued that these acts are not adverse employment actions as a matter of law. Westwood also offered evidence of legitimate, non-pretextual business reasons for each act and decision. In retaliation cases arising under FEHA, courts follow the burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.) Under that analysis, once the employee has shown a prima facie case of retaliation, the employer may produce evidence of a legitimate, nonretaliatory reason for the adverse employment action, which then requires the employee to produce evidence that the employer’s showing was false or pretextual. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224-225.) A reason is legitimate if it is facially unrelated to the activity protected under FEHA, honestly believed by the employer, and which, if true, would thus preclude a finding of retaliation. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358 [age discrimination].)
In opposing Westwood’s motion in the trial court, Inman did not argue that the facts alleged in her complaint in support of her retaliation cause of action or her deposition testimony provided evidence of retaliation, nor did Inman either argue or offer evidence that Westwood’s evidence explaining its acts and decisions was pretextual. Likewise, on appeal, Inman does not assert that any of the facts alleged in her retaliation cause of action or that any of the testimony she gave in her deposition about her retaliation claims creates a triable issue as to retaliation.
Instead, in opposing Westwood’s motion in the trial court, and also here on appeal, Inman urged two new “glaring examples” of adverse employment actions that she had never previously alleged or disclosed in discovery, including that she was not promoted to a position of higher salary as promised and that she was constructively discharged. Inman also asserted for the first time in opposing Westwood’s motion that she was denied the right to take a family leave of absence and that Westwood interfered with her right to take medical leave. Since these theories of retaliation were not pleaded in the first amended complaint, and Inman does not claim that she requested leave to amend prior to the hearing on Westwood’s motion for summary judgment, she cannot defeat summary judgment with these new theories. (See Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4; Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699.)
Moreover, Inman cites nothing in the record to support her new arguments that she was denied family leave or that Westwood interfered with her right to take medical leave. Inman cites nothing in the record to support her new argument that she was constructively discharged. “When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made.” (In re S.C. (2006) 138 Cal.App.4th 396, 406.) The undisputed evidence is that Inman took a medical leave on September 6, 2006, and is still on medical leave. There is no evidence in the record that Inman ever told Westwood that she is clear to return to work. There is no evidence in the record that Inman’s employment with Westwood ever terminated, constructively or otherwise. Indeed, appellant acknowledges that her employment was never terminated. We conclude the trial court did not err in granting Westwood’s motion for summary adjudication of the third cause of action.
5. Counts 4 and 5: Infliction of Emotional Distress and Negligence
Inman contends that the trial court erred in finding that there was no triable issue of fact with regard to her emotional distress and negligence causes of action. The elements of a prima facie case of intentional infliction of emotional distress are “‘(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress. [Citations.]’” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) The elements of any cause of action for negligence are duty, breach of duty, proximate cause and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.)
Inman makes little attempt to show that Westwood’s motion failed to show that she could not prove an element of these causes of action. Further, she makes little attempt to show that she raised a triable issue of fact in her response to the motion. Inman merely concludes, without analysis of the facts or law, that Westwood’s sexual harassment and retaliatory conduct created a factual dispute regarding the outrageousness element of intentional infliction of emotional distress. The only legal analysis with regard to intentional infliction of emotional distress was directed to whether the cause of action is preempted by workers’ compensation law. With regard to negligence, Inman merely attacks Westwood’s analysis and the trial court’s conclusion, without making a legal argument or setting forth all the facts supporting negligence. Not until her reply brief does Inman contend that the facts showed that Westwood was negligent in hiring Mares without sufficient investigation. However, she has not recited the facts that would establish that claim, and fails to discuss the proximate cause element.
“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.]” (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) “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. [Citations.]” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.) Because Inman’s arguments regarding counts 4 and 5 are inadequately briefed, and the factual analysis is cursory and conclusory, we decline to discuss or consider her claim of error.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: BIGELOW, P. J., FLIER, J.