Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. CV-264834, David R. Lampe, Judge.
Ganong Law Office, Philip W. Ganong; The Arkin Law Firm and Sharon J. Arkin for Plaintiff and Appellant.
Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, Catherine E. Bennett, Jeff W. Noe and Gary Logan for Defendant and Respondent.
OPINION
HILL, P.J.
Plaintiff appeals from the judgment against him in his wrongful termination action. He challenges only the summary adjudication of the second cause of action, arguing it presented triable issues of material fact regarding issues not raised or argued in the summary adjudication motion. We find the theory plaintiff now asserts was not within the scope of the claims alleged in plaintiff’s second cause of action, defendant was not required to address it in defendant’s motion for summary adjudication, and it therefore cannot give rise to material issues of fact. We affirm the judgment.
Because we do not consider plaintiff’s new theory on the merits, we deny plaintiff’s motion for judicial notice, filed June 2, 2010. The materials of which plaintiff requests judicial notice concern the legislative history of Labor Code section 98.6 and are not relevant to the resolution of this appeal. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276, stating only relevant matter may be judicially noticed.)
FACTUAL AND PROCEDURAL BACKGROUND
Both parties include in their briefs facts taken from the trial of the third cause of action. Our review of a summary judgment or summary adjudication motion, however, is limited to the facts contained in the documents presented to the trial court. (Truck Ins. Exchange v. Amoco Corp. (1995) 35 Cal.App.4th 814, 822.) Accordingly, in reviewing the summary adjudication of the second cause of action, we have considered only the facts contained in the moving and opposing papers presented in the trial court in connection with defendant’s motion for summary adjudication.
Plaintiff was employed by defendant, Wholesale Fuels, Inc. (defendant), from 2001 to 2007. In September 2007, female employees of defendant who left work after 6:30 p.m. complained that they did not feel safe walking to their cars in the dark after work and asked if they could park near the main gate. Defendant’s general manager, Charles McCan, decided to reserve the three parking spaces closest to the main gate for the three female employees who left work after dark; on October 3, 2007, he distributed an office memo stating that those designated spaces would be reserved “ONLY for the ladies who will be leaving after dark.” He also had signs posted on defendant’s fence stating, “Ladies Parking Only.” There were other parking spaces available to other employees along the street east and west of the reserved spaces. Plaintiff, who started work between 2:00 and 3:00 a.m., continued to park in the designated parking spaces. On October 12, 2007, McCan left a note on plaintiff’s windshield advising that the area designated “Ladies Parking Only” was reserved for ladies who left late in the evening. Plaintiff went to discuss the note with McCan; McCan told plaintiff he would be fired if he continued to park in the designated spaces. Plaintiff continued to park in one of the designated spaces. On October 19, 2007, McCan fired plaintiff for continuing to park in the designated area against his instructions.
On October 12, 2007, plaintiff contacted the City of Bakersfield and was told defendant could not legally regulate parking on a city street. On the same date, plaintiff also contacted the Department of Fair Employment and Housing (DFEH). The city removed defendant’s parking signs on October 22, 2007. McCan did not learn until after plaintiff’s termination that plaintiff had reported the parking policy to the city and the DFEH.
Plaintiff filed a complaint alleging three causes of action against Wholesale Fuels, Inc. and McCan. The first cause of action was for wrongful termination in violation of public policy; it alleged plaintiff’s termination violated the public policy expressed in Labor Code section 1102.5, which prohibits an employer from retaliating against an employee “from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” The second cause of action alleged “wrongful termination in retaliation for reporting unlawful employment conduct”; it alleged section 1105 authorizes a suit for damages by an employee who has been terminated for reporting to a government agency a reasonable belief that the employer is violating the law. The third cause of action alleged wrongful termination in violation of the public policy against gender discrimination.
All further statutory references are to the Labor Code, unless otherwise indicated.
On May 26, 2009, plaintiff filed a motion for summary adjudication, seeking an adjudication in his favor of certain issues presented by the third cause of action. On the same date, defendants filed a motion for summary judgment or summary adjudication of each cause of action. The court denied plaintiff’s motion for summary adjudication. It granted McCan’s motion for summary judgment; plaintiff does not challenge that ruling. The trial court denied defendant’s motion for summary judgment, but granted summary adjudication in defendant’s favor of the first and second causes of action. It found triable issues of fact remained as to the third cause of action. Jury trial of the third cause of action resulted in a verdict for defendant. Judgment was entered in favor of defendant. Plaintiff appeals, challenging only the judgment on the second cause of action, which was determined by summary adjudication.
DISCUSSION
I. Standard of Review
Summary adjudication of a cause of action must be granted when the cause of action has no merit; a cause of action has no merit if one or more elements of the cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (f), (o).) If the moving defendant demonstrates a cause of action has no merit, the burden of production shifts to plaintiff to show that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“As a summary judgment motion raises only questions of law regarding the construction and effect of supporting and opposing papers, this court independently applies the same three-step analysis required of the trial court.” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342 (Tsemetzin).) “First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) Next, we “determine whether the moving party’s showing established facts that negate the opponent’s claim and justify a judgment in the moving party’s favor.” (Tsemetzin, supra, at p. 1342.) If so, “we finally determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Ibid.) We review the trial court’s decision on the motion de novo, considering all of the evidence the parties offered in connection with the motion, except that which the court properly excluded. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We examine the documents presented in the trial court and independently determine their effect as a matter of law. (Tsemetzin, supra, at p. 1341.)
II. Allegations of Second Cause of Action
The first step of our analysis requires that we identify the issues framed by the pleadings. The first cause of action of plaintiff’s complaint alleges the termination of plaintiff’s employment violated section 1102.5. That section provides, in pertinent part:
“(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
“(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.
“(c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (§ 1102.5, subds. (a)-(c).)
The second cause of action of plaintiff’s complaint seems to allege a cause of action under section 1105, which provides: “Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.” “This chapter” encompasses sections 1101 through 1106. Section 1105, rather than defining substantive rights, creates a right of action for damages when the employer violates one of the substantive provisions of the chapter, such as section 1102.5. (See Lockheed Aircraft Corp. v. Superior Court of Los Angeles County (1946) 28 Cal.2d 481, 486.)
Plaintiff’s second cause of action alleges section 1105 “authorizes an employee who has been terminated by an employer for reporting a reasonable belief that their employer has or is violating the law to a governmental agency to sue that employer for the damages caused by such a termination.” It further alleges:
“Defendants terminated and thereby disparaged Plaintiff, when Plaintiff reported to the City of Bakersfield, Defendants’ placement of unlawful parking restriction signs in an attempt to unlawfully control public parking in a discriminatory fashion on a public street. Defendants’ conduct was also discriminatory in its effect, purporting to deny equal parking access to men in a preference to women.
“Defendants ordered Plaintiff to break the law by forbidding Plaintiff to park on a public street Defendants illegally attempted to regulate through the use of discriminatory parking signs, enforced by threats of termination if Plaintiff refused to participate in Defendants’ illegal policy and practice.
“Defendants terminated Plaintiff because Plaintiff refused to participate in Defendants’ unlawful and discriminatory policy and practice. Plaintiff refused to park in a location other than the public street Defendants had illegally attempted to regulate[] in a fashion that discriminated against men. Defendants’ conduct violated Labor Code section 2856.”
Thus, plaintiff’s second cause of action largely repeats the claim asserted in the first cause of action. It alleges the same facts regarding defendant’s parking policy and signs, and seems to assert his termination was in retaliation for reporting that policy to the city. It adds allegations that his termination was the result of his refusal to participate in defendant’s “unlawful and discriminatory policy and practice.” The second cause of action also mentions section 2856, which provides: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.”
In opposition to defendant’s motion for summary judgment, plaintiff summarized his claims as follows: “Plaintiff alleges he was wrongfully terminated in retaliation for refusing to participate in defendants’ unlawful and discriminatory employment policy and practice of restricting parking on a public street to female employees only. Plaintiff also complains of retaliation for reporting the unlawful policy and practice, both internally to the CEO and externally, to local enforcement agencies.” In his discussion of the second cause of action, plaintiff cited sections 1102.5 and 2856 and asserted he was terminated because he refused to participate in defendant’s unlawful and discriminatory employment practices and because he reported them.
In his opening brief on appeal, plaintiff raises a new issue: “Does California public policy permit an employer to terminate an employee for engaging in lawful conduct during nonworking hours and away from the employer’s premises?” He contends “the trial court erroneously granted summary adjudication of plaintiff’s second cause of action for termination in violation of public policy” because, if that cause of action had gone to trial, the evidence would have established that defendant discharged him “for lawful conduct occurring during nonworking hours away from the employer’s premises, ” in violation of section 98.6, subdivision (a), and section 96, subdivision (k).
Section 98.6, subdivision (a), provides, in pertinent part: “No person shall discharge an employee or in any manner discriminate against any employee … because the employee … engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96.” Section 96 provides, in pertinent part: “The Labor Commissioner and his or her deputies and representatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee … with the Labor Commissioner, take assignments of: [¶] … [¶] (k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” Thus, plaintiff claims he was wrongfully terminated in violation of the public policy expressed in these statutes.
“The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint. A ‘moving party need not’ … refute liability on some theoretical possibility not included in the pleadings. [Citation.]” (Tsemetzin, supra, 57 Cal.App.4th at p. 1342.) “‘[I]n reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a “triable issue” on appeal.’ [Citation.] ‘A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.’ [Citation.]” (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676.) “[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.)
Plaintiff’s second cause of action was based on allegations that defendant unlawfully attempted to control the parking on a public street, attempted to control that parking on a discriminatory basis, and terminated plaintiff’s employment when he refused to participate in that allegedly unlawful and discriminatory effort and reported it to government agencies. The second cause of action did not mention section 96 or 98.6 and did not include any allegations that plaintiff was terminated for lawful conduct he engaged in on his own time and away from defendant’s premises. Thus, defendant was not required to, and did not, address that theory of liability in its motion for summary adjudication. Plaintiff did not raise the issue of liability under these sections in opposition to defendant’s motion, nor did he move to amend the complaint to allege such a cause of action. Our review is limited to the issues framed by the pleadings and addressed in the motion for summary adjudication. A party cannot defeat a motion for summary adjudication by creating issues outside the pleadings. (Tsemetzin, supra, 57 Cal.App.4th at p. 1342.) The legal theory advanced by plaintiff in this appeal was not alleged in the complaint, and cannot be used to create a triable issue of material fact to defeat defendant’s summary adjudication motion.
III. Legal Question Based on Undisputed Facts
Our Supreme Court has held “that parties may advance new theories on appeal when the issue posed is purely a question of law based on undisputed facts, and involves important questions of public policy.” (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 3.) Plaintiff contends that “the issue of whether section 98.6(a) provides legal protections from wrongful discharge in violation of public policy is a legal question which can be assessed and determined on appeal on the basis of the undisputed facts, even if not raised in or decided by the trial court.”
Plaintiff has not shown that the facts he asserts in support of a claim of wrongful termination for lawful conduct occurring during nonworking hours away from the employer’s premises are undisputed. Plaintiff contends he was terminated for lawfully parking on a public street, which was not part of defendant’s premises, prior to his working hours. Defendant’s evidence, however, indicated plaintiff was terminated for insubordination, for refusing to follow defendant’s instructions regarding leaving certain parking spaces free for designated employees to park in, conduct which arguably occurred during working hours and on defendant’s premises.
More importantly, a determination that a cause of action for wrongful termination in violation of public policy may be based on a violation of section 98.6, subdivision (a), would not demonstrate that summary adjudication of the second cause of action was improper. The purpose of summary judgment is to separate those cases in which there are material issues of fact warranting the time and cost of factfinding by trial from those in which there are no such issues. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) “[U]nless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create ‘triable issues of material fact’ may not be raised or considered on appeal.” (Id. at p. 163.) Whether a cause of action for wrongful discharge in violation of public policy may be based on an alleged violation of section 98.6, subdivision (a), is a question that would be relevant only if plaintiff had attempted to allege such a cause of action in his complaint. The issue before this court is not whether plaintiff could have alleged a viable cause of action on that or any other legal theory; it is whether, in light of the evidence presented, the claims actually alleged in the complaint present triable issues of material fact that require the weighing process of a trial. Thus, even if we were to determine that wrongful discharge in violation of section 98.6, subdivision (a), is a viable cause of action, it would not change the outcome of defendant’s motion for summary adjudication, because such a cause of action was not alleged in plaintiff’s complaint, and was not addressed in defendant’s motion for summary adjudication and plaintiff’s opposition to it.
DISPOSITION
The judgment is affirmed. Defendant is awarded its costs on appeal.
WE CONCUR: WISEMAN, J., DETJEN, J.