Opinion
B286660
04-07-2020
INGRI DURAN, Plaintiff and Appellant, v. ATLANTIC MEMORIAL HOSPITAL ASSOCIATES, INC., et al., Defendants and Respondents.
Law Office of Twila S. White and Twila S. White for Plaintiff and Appellant. Call & Jensen, Julie Trotter, and Delavan J. Dickson for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NC060366) APPEAL from a judgment of the Superior Court of Los Angeles County, Ross M. Klein Judge. Affirmed. Law Office of Twila S. White and Twila S. White for Plaintiff and Appellant. Call & Jensen, Julie Trotter, and Delavan J. Dickson for Defendants and Respondents.
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Plaintiff Ingri Duran appeals from a judgment entered after the trial court granted defendant Atlantic Memorial Healthcare Associates, Inc.'s (Atlantic) motion for summary adjudication. Duran was an activity director for Atlantic at its skilled nursing facility. After Duran became pregnant, she took leave, then resigned her position. Duran asserts she was constructively discharged due to the hostile work environment at Atlantic. Duran brought claims under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) for gender and disability discrimination; failure to accommodate; retaliation; harassment; failure to prevent discrimination, retaliation and harassment; and wrongful constructive discharge. Duran also alleged interference with her right to leave and retaliation in violation of the Pregnancy Disability Leave Law (§ 12945; PDLL); retaliation in violation of Labor Code section 1102.5 and Health and Safety Code section 1432; defamation; conversion; unfair business practices; and Labor Code violations.
All further undesignated statutory references are to the Government Code.
Duran also appeals from the trial court's denial of her ex parte application for reconsideration of the court's order appointing a discovery referee and requiring Duran to pay 50 percent of the referee's costs. Duran has not shown triable issues of fact exist as to her claims and has not met her burden to show the trial court abused its discretion in denying her request for reconsideration. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Duran's Employment with Atlantic
The factual background regarding Duran's employment, injury, and termination is taken from evidence submitted by the parties in connection with Atlantic's motion for summary adjudication. We note where the facts are in dispute.
Atlantic, which operates a skilled nursing facility in Long Beach, hired Duran as the facility's activity director on July 27, 2010. Duran's duties included programming and supervising activities for the patients, taking patients on field trips, conducting room visits, documenting administration of psychotropic medication, and conducting patient assessments. Duran regularly purchased supplies for patient activities and submitted those expenses to Atlantic on a monthly basis for reimbursement. Throughout her employment, Atlantic reimbursed Duran for all her expenses. Duran never waited longer than a month for a reimbursement.
In November 2010 Duran complained to her supervisor, administrator Rusty Marsh, about harassment she was experiencing at Atlantic. Duran told Marsh a medical records director named Lala asked Duran to be friendlier with the doctors at Atlantic, including to hug and kiss them. When Duran refused, Lala said, "You have to do it. It's good for the facility. They are going to give us patients."
Duran also complained to Marsh about Armida Faessler, the director of nursing. Upon learning Duran was engaged, Faessler demanded, "Why didn't you tell me you had a fiancé, and you were getting married? If [only] I knew that before I hired you." Faessler added, "I wanted you to be friendlier with the doctors." On another occasion, Faessler stopped Duran while at work to criticize her earrings, then slapped Duran hard in the face in front of the nursing staff. At an employee meeting, Faessler told Duran she had to "kiss the floor" Faessler walked on. Faessler also called Duran "young" and "stupid."
Duran also reported to Marsh the treatment Duran received from marketing director Judy Gonzalez and admissions coordinator Jasmine Patdu. Gonzalez made fun of Duran's weight and told her to wear less provocative, looser fitting clothing. Faessler, Gonzalez, and Patdu mocked Duran's accent.
In response to Duran's complaints about Faessler, Lala, Gonzalez, and Patdu, Marsh said, "I'll see what I can do," but Duran's coworkers continued to call her "fat, dumb, [and] stupid." Duran again complained to Marsh on multiple occasions, but the situation did not improve.
In 2011 Duran became pregnant. During Duran's pregnancy, Faessler continued to insult Duran's weight, questioned why she was sick so frequently, and forbid her from using the facility restrooms. In late 2011 Duran miscarried the pregnancy.
By the time Duran became pregnant in 2013, Faessler and Marsh had left Atlantic. With their departures, Duran's working conditions improved. In 2013 Duran requested and was granted leave for her second pregnancy, from August 26 to December 30, 2013. When Duran returned, Atlantic granted her temporary part-time status. Duran became a member of Atlantic's interdisciplinary team, which required her to attend one or two meetings a day. By the time of her return, Matt McClain had assumed the role of administrator. Duran liked McClain as the administrator, and "the situation was good under his direction." While McClain was administrator, no one insulted or harassed Duran at work.
In March 2015 Jake Rothey assumed the position of administrator and began to supervise Duran. Rothey required Duran to attend all interdisciplinary team meetings, along with the social service director, dietary supervisor, rehab director, rehabilitation therapists, and director of nursing. The change required Duran to attend meetings "the whole day." Rothey sometimes allowed Duran to have an assistant work extra hours to assist her, and sometimes he did not.
In April 2015 Duran made an anonymous complaint about patient care at Atlantic through its website. Duran stated Atlantic was failing to control a violent patient who had assaulted others, and Rothey and others told employees to misreport the incidents. In June 2015 Duran made a second anonymous complaint by phone. Duran requested the call be "confidential" and never told anyone she made the call. Duran complained Rothey had intimidated employees into falsifying patient documents, and she reported unhygienic conditions and patient neglect and abuse. Hannah Surh investigated both complaints for Atlantic, but she never learned the identity of the complainants. Surh concluded the claims were unsubstantiated.
In June 2015 Duran informed Rothey and her coworkers she was pregnant. Rothey replied, "Oh, okay," but he did not congratulate her. Rothey never made any comments to Duran about her pregnancy. During a meeting with Rothey, Duran complained she was expected to attend meetings all day, to run programs, and to perform room visits, but she could not be in three places at once. Duran requested staffing assistance, but Rothey denied her request and told her "to figure it out."
At another meeting, Rothey and the social service director (Sheila) told Duran she would need to take patients outside for smoke breaks. Duran refused, but Rothey and Sheila repeated their request three or four times during the meeting. Duran responded she was pregnant and she "wasn't going to put [her] baby in danger." Sheila accused Duran of using her pregnancy as an excuse. Duran never took a patient on a smoke break, and she was never asked to do it again. Instead, other employees took the patients out to smoke.
Although the facility was smoke free, patients were allowed to smoke approximately 25 feet from the entryways.
During Duran's pregnancy, one of Duran's coworkers called her "fat," and Duran overheard other coworkers state, "Look at [Duran]. She just came back from maternity leave. Now she's going to start taking days off. Lucky her. She shouldn't be here. They should fire her already. She's going to start coming in late. She can do whatever she wants." Another coworker told Duran, "Look at you. You can't complain. You are pregnant. You have a husband to take care of you." The coworker added, "You are too young and stupid." In June or July 2015 Gonzalez called Duran "fat" on two occasions.
In July 2015, when Duran was late to a morning meeting due to a doctor's appointment, a coworker named Linda announced, "Here comes the complainer," referring to Duran in front of all of the department heads. On another occasion, Linda commented to Sheila within earshot of Duran, "Look at [Duran], she's coming in late again. She's taking days off."
Based on her doctor's recommendation, Duran requested and was granted leave for her third pregnancy, between August 24 and September 19, 2015. When Duran called to check in during her leave, Duran's assistant Jackie told her Rothey had taken votes among department heads whether to terminate Duran. According to Jackie, Rothey stated, "I hope [Duran] doesn't come back," and he offered Duran's position to Jackie. When Duran returned to work on September 21, 2016, she overheard two nursing assistants say they "thought [Duran] [was] fired already." Duran told Rothey she "just couldn't be there anymore." Rothey replied, "Okay." Duran resigned from Atlantic that day and left without making arrangements to receive her final paycheck. B. Duran's Complaint
On October 8, 2015 Duran submitted a complaint to the Department of Fair Employment and Housing (DFEH). After receiving a right to sue letter, on November 16, 2015 Duran filed a complaint in the Los Angeles Superior Court against Atlantic, Rothey, and unnamed Doe defendants. The complaint alleged causes of action for (1) discrimination based on sex; (2) discrimination based on disability; (3) failure to accommodate; (4) violation of PDLL; (5) retaliation; (6) harassment; (7) hostile work environment; (8) failure to prevent discrimination, harassment, and retaliation; (9) retaliation in violation of Labor Code section 1102.5; (10) retaliation in violation of Health and Safety Code section 1432; (11) defamation; (12) failure to pay wages upon discharge; (13) failure to provide accurate wage statements; (14) failure to reimburse expenses; (15) conversion; (16) wrongful constructive discharge in violation of public policy; and (17) unfair business practices. As to her conversion claim, Duran alleged Atlantic "withheld . . . and failed to pay her wages and other compensation, . . . failed to compensate [Duran] for meal and rest breaks, and failed to provide other compensation due to [Duran]." C. Atlantic's Motion for Summary Judgment or, in the Alternative, Summary Adjudication
Duran's claims for harassment and hostile work environment in violation of FEHA, retaliation in violation of Health and Safety Code section 1432, and defamation were brought against both Atlantic and Rothey. Duran asserted the remaining causes of action only against Atlantic.
On February 17, 2017 defendants filed a motion for summary judgment or, in the alternative, summary adjudication. Defendants contended to the extent Duran's claims were based on conduct that took place before October 8, 2014, the claims were time-barred. Defendants also argued Duran could not show an adverse employment action because Duran was not constructively discharged and could not show any other adverse employment action because of her pregnancy. Defendants asserted Duran's failure to accommodate and PDLL claims failed because Duran could not show she was denied leave. Further, judgment was warranted on Duran's retaliation claims because she could not show she engaged in protected activity or suffered any adverse employment action. As to Duran's harassment claims, defendants argued the alleged conduct was not sufficiently severe or pervasive and was not based on Duran's pregnancy. Likewise, Duran had not shown her working conditions were sufficiently intolerable or aggravated at the time of her resignation to support a claim for constructive discharge. Defendants contended Duran could not prove her causes of action for failure to pay wages upon discharge and failure to reimburse expenses because Atlantic had reimbursed Duran for her expenses and she never returned to pick up her final paycheck. Finally, defendants argued Duran's conversion claim failed because it was not a cognizable claim to enforce violations of the Labor Code's meal and rest break requirements. D. Duran's Opposition
Duran argued in opposition defendants' acts of harassment in 2010 and 2011 were not time-barred under the continuing violation doctrine. Duran asserted as to her constructive discharge claim her treatment by Atlantic made her employment intolerable. Further, there were disputed questions of fact whether she was constructively discharged. With respect to her harassment claim, Duran argued she was subjected to severe or pervasive offensive conduct by Rothey and her coworkers. As to her failure to accommodate, Duran contended she was denied use of the facility bathrooms during her first pregnancy and was asked to take patients on smoke breaks during her third pregnancy. Duran also argued Atlantic retaliated against her during her third pregnancy by terminating her employment and subjecting her to harassment, in violation of FEHA, the PDLL, Labor Code section 1102.5, and Health and Safety Code section 1432. As to her Labor Code claims, Duran argued Atlantic failed to provide meal and rest breaks, accurate wage statements, and timely reimbursement, and failed to pay Duran her wages owed upon discharge. Duran also asserted Atlantic's failure to pay wages gave rise to a conversion claim.
In reply, defendants filed evidentiary objections to portions of Duran's deposition testimony submitted with her opposition. Defendants identified the challenged portion by listing the page and line numbers and describing the statements as "allegations regarding what [Duran] contends her assistant told her happened at Atlantic when [Duran] was out on leave in August/September 2015. . . ." Defendants objected the statements were "premised on double hearsay given (1) the statements allegedly made by [Duran's] assistant are hearsay; and (2) the statements allegedly made by the other Atlantic employees would be hearsay as well." E. The Trial Court's Hearing and Ruling
Defendants also objected based on lack of foundation to a September 23, 2015 employment record (prior to Duran's resignation) reflecting a payroll department request to stop payment on Duran's paycheck and to terminate her direct deposit authorization. Defendants objected based on speculation and lack of foundation to Duran's statement in her declaration she miscarried her first pregnancy due to stress caused by Atlantic's unlawful harassment and discrimination. The trial court sustained these objections, and Duran does not challenge these evidentiary rulings on appeal.
After a hearing, on June 29, 2017 the trial court granted summary adjudication in favor of defendants on all claims except for defamation and inaccurate wage statements. The court overruled defendants' evidentiary objection to Duran's deposition testimony, stating California Rules of Court, rule "3.1352 requires the objectionable material to be quoted verbatim and this was not done." The court found the harassment that took place before October 8, 2014 was time-barred. Further, the remaining alleged incidents of harassing conduct were not sufficiently severe or pervasive to support Duran's harassment claims. The court found Duran was not constructively discharged because she was not subjected to intolerable conditions at the time of her resignation, and likewise she had not suffered an adverse employment action for purposes of her FEHA discrimination and retaliation claims. The court rejected Duran's failure to accommodate and PDLL claims, finding Duran had received all the leave she had requested and she had not requested any other accommodation. The court concluded Duran's retaliation claims under Labor Code section 1102.5 and Health and Safety Code section 1432 failed because there was no evidence Duran reported her complaints to any governmental entity. Further, Duran had not shown she was denied reimbursement for her expenses, and Duran's conversion claim failed because premium wages for missed meal and rest breaks did not constitute tangible property for purposes of conversion.
The court also granted summary adjudication in favor of defendants on Duran's 12th cause of action for failure to pay wages upon discharge and her 17th cause of action for unfair business practices. In her opening brief, Duran does not present any argument as to these claims, thereby forfeiting any challenges. (Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 ["Issues not raised in the appellant's opening brief are deemed waived or abandoned."]; Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 63.)
On January 4, 2018 Duran voluntarily dismissed her remaining causes of action for defamation and failure to provide accurate wage statements, and on February 1, 2018 the trial court entered judgment in favor of defendants. Duran appealed.
Although Duran prematurely appealed on November 29, 2017, in response to our issuance of an order to show cause, Duran lodged the February 1, 2018 judgment, and we allowed Duran to proceed with her appeal. We deem Duran's notice of appeal to be from the final judgment.
DISCUSSION
A. The Trial Court Erred in Overruling Defendants' Evidentiary Objection to Duran's Hearsay Deposition Testimony
On appeal, Duran supports her harassment and other claims in part on the statements Rothey made during Duran's leave (as reported to Duran by Jackie) that Rothey wanted to terminate Duran and hoped she did not return from her leave. Defendants respond the trial court erred in overruling their evidentiary objection to Duran's deposition testimony because their objection adequately identified the challenged evidence and the statements were inadmissible hearsay. Defendants are correct.
The "[c]ourts are split regarding the proper standard of review for the trial court's evidentiary rulings in connection with motions for summary judgment and summary adjudication." (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368; accord, Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 (Reid) ["we need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].) However, "[t]he weight of authority . . . holds that an appellate court applies an abuse of discretion standard" to evidentiary issues arising in the context of a summary judgment motion, except evidentiary rulings turning on questions of law, such as hearsay rulings, which are reviewed de novo. (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226; but see Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451, 1451 , fn. 10 [interpreting Reid to require de novo review of evidentiary rulings on a summary judgment motion].)
Under either a de novo or abuse of discretion standard, the trial court erred in overruling defendants' objection on procedural grounds. The court based its ruling on defendants' failure to quote the objectionable material "verbatim" in their written objection. However, the applicable rule requires that the objecting party "[q]uote or set forth the objectionable statement or material . . . ." (Cal. Rule of Court, rule 3.1354(b)(3).) Defendants identified the page and line numbers of the objectionable statements and described the objectionable statements as those made by "[Duran's] assistant" telling "her [what] happened at Atlantic when [Duran] was out on leave in August/September 2015."
In its ruling, the trial court misidentified the relevant rule as California Rule of Court, rule 3.1352. Instead, rule 3.1354 sets forth the requirements for written objections.
"'"Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion. [Citation.] If the trial court is mistaken about the scope of its discretion, the mistaken position may be 'reasonable,' i.e., one as to which reasonable judges could differ. [Citation.] But if the trial court acts in accord with its mistaken view the action is nonetheless error; it is wrong on the law."'" (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 147; accord, Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1361 ["'A trial court's decision that rests on an error of law is an abuse of discretion.'"].)
Here, the trial court acted in accord with its mistaken view defendants were required to quote verbatim the objectionable material when it overruled defendants' objection. However, the rule provides no such requirement, and defendants' objection adequately identified the challenged material without ambiguity. The trial court therefore erred in overruling defendants' objection without considering its merits.
Further, we agree with defendants that Duran's deposition testimony regarding what Jackie told her Rothey had said about Duran's employment is inadmissible hearsay. Under the hearsay rule, evidence of a statement made by a person other than the testifying witness and offered to prove the truth of the matter stated is inadmissible, except as provided by law. (Evid. Code, § 1200, subds. (a) & (b).) The statement may be admissible if it is offered against a party that authorized the person to make the statement. (Evid. Code, § 1222, subds. (a) & (b).) Duran has provided no evidence defendants authorized Jackie to speak on their behalf concerning Duran's employment, and thus the evidence is inadmissible. (See Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 53 [affirming trial court's exclusion of hearsay statement by employee of defendant where plaintiff proffered no evidence the defendant authorized the employee to speak on its behalf]; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [statements by employees did not qualify for hearsay exception without evidence defendant authorized employees "to speak on the subject they addressed"]; cf. O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 572 [statement on behalf of organization admissible because author held a "particularly high place in the employer's hierarchy" and evidence showed authorization to speak on its behalf].)
Duran does not address defendants' evidentiary objection in her appellate briefs.
We therefore reverse the trial court's evidentiary ruling and proceed to the merits of Duran's appeal without considering the inadmissible hearsay evidence of Jackie's statements to Duran. B. Standard of Review on Summary Judgment
Summary judgment is appropriate only if there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents); Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1085.) "'"'"We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; accord, Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1179 (Husman).)
A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; Husman, supra, 12 Cal.App.5th at pp. 1179-1180.) If the defendant satisfies this initial burden, the burden shifts to the plaintiff to present evidence demonstrating there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Husman, at pp. 1179-1180.) We must liberally construe the opposing party's evidence and resolve any doubts about the evidence in favor of that party. (Regents, supra, 4 Cal.5th at p. 618; Husman, at p. 1180.) "'[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . . .'" (Husman, at p. 1180, quoting Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)
In analyzing discrimination claims under FEHA, California courts apply the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, under which at trial a plaintiff must establish a prima facie case of discrimination by showing (1) the employee was a member of a protected class; (2) he or she was qualified for and performing competently in the position he or she held; (3) he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) circumstances suggesting a discriminatory motive. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214 (Harris); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz); Husman, supra, 12 Cal.App.5th 1168, 1181 [reversing trial court's grant of employer's motion for summary judgment, finding triable issue of material fact as to whether impermissible bias based on the employee's sexual orientation was a substantial motivating factor for his termination]; Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591 (Soria) [reversing trial court's grant of employer's motion for summary judgment, finding triable issues of material fact as to whether the employer's stated reason for plaintiff's termination was a pretext for disability discrimination].)
If the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate, nondiscriminatory reason for the adverse employment action. (Harris, supra, 56 Cal.4th at p. 214; Guz, supra, 24 Cal.4th at p. 355.) If the employer meets its burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence the employer's reasons for the adverse employment action were a mere pretext for discrimination; the ultimate burden of persuasion on the issue of discrimination remains with the plaintiff. (Harris, at pp. 214-215; Guz, at p. 356.)
The three-step McDonnell Douglas burden shifting framework applies to a retaliation claim under FEHA. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Glynn, supra, 42 Cal.App.5th at p. 55; Cornell, supra, 18 Cal.App.5th at p. 942.)
An employer may meet its initial burden in moving for summary judgment or adjudication of an employment discrimination or retaliation cause of action by presenting evidence that one or more elements of a prima facie case is lacking, or the employer acted for a legitimate, nondiscriminatory reason. (Husman, supra, 12 Cal.App.5th at p. 1181; Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158 (Featherstone) [trial court properly granted employer's motion for summary judgment on FEHA claims because the employer's refusal to allow the plaintiff to rescind her resignation was not an adverse employment action]; Soria, supra, 5 Cal.App.5th at p. 591.) C. Duran Cannot Recover Under FEHA for Conduct Occurring Before October 8, 2014
"A plaintiff suing for violations of FEHA ordinarily cannot recover for acts occurring more than one year before the filing of the DFEH complaint." (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1400 (Jumaane), citing former § 12960, subd. (d); accord, Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 818 (Richards).) Duran filed a DFEH complaint on October 8, 2015, but contends the continuing violation doctrine creates an exception allowing her to recover for acts that occurred before the filing of her DFEH complaint. It does not.
"[W]hen an employer engages in a continuing course of unlawful conduct under the FEHA . . . the statute of limitations begins to run not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain." (Richards, supra, 26 Cal.4th at p. 823; accord, Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 ["The continuing violation doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them."].)
In applying the continuing violations doctrine, "we consider whether 'the employer's . . . actions [were] (1) sufficiently similar in kind—recognizing . . . that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059 (Yanowitz), quoting Richards, supra, 26 Cal.4th at p. 823.) The plaintiff bears the burden to demonstrate her claims are founded on a pattern or practice of employer conduct that continued into the limitations period. "[T]he plaintiff has the burden of proof to show his or her claims are timely under the continuing violation doctrine." (Jumaane v. City of Los Angeles, supra, 241 Cal.App.4th at p. 1402.)
Duran contends the alleged harassing and discriminatory conduct by Faessler, Lala, Gonzalez, Patdu, and Marsh occurring in 2010 and 2011 and the alleged conduct by Rothey and others during Duran's third pregnancy in 2015 form a single continuous course of conduct. But there is no evidence of allegedly unlawful conduct after Faessler's departure in 2012 until Rothey's arrival in 2015. More than two years passed in between, a period too long to support a showing of unlawful conduct continuing with "reasonable frequency" throughout Duran's employment. (Yanowitz, supra, 36 Cal.4th at p. 1059.)
Moreover, the earlier harassing conduct had "acquired a degree of permanence" before 2015. (Yanowitz, supra, 36 Cal.4th at p. 1059.) "Permanence" means "that an employer's statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to . . . end harassment will be futile." (Richards, supra, 26 Cal.4th at p. 823.) Futility is apparent if the employer ignores the employee's complaints on several occasions. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1035-1037, 1042-1043 [complaint became permanent after supervisor repeatedly refused plaintiff's request to work in a particular job and plaintiff's internal grievances challenging those decisions were denied]; Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1414-1415 [failure to accommodate claim became permanent when employer denied informal accommodation request for a second time and employee hired attorney].) Duran complained to Marsh multiple times about Faessler's conduct, but Marsh did nothing, and the harassment continued. Duran did not take legal action, even after Faessler and Marsh left Atlantic.
The authorities relied on by Duran are not to the contrary. In Draper v. Coeur Rochester, Inc. (9th Cir. 1998) 147 F.3d 1104, the plaintiff offered evidence her direct supervisor sexually harassed her on numerous occasions throughout "most of" her two-year employment and he assigned her unfavorable job duties when she declined his sexual advances. (Id. at p. 1109.) By contrast, the allegedly harassing conduct toward Duran ceased entirely during 2013 and 2014, a period including Duran's second pregnancy. The cessation of conduct is underscored by the departure of Faessler and Marsh. Duran has identified no common perpetrator of harassing conduct (or common supervisor) during her first and third pregnancies, and Rothey did not become Duran's supervisor until March 2015.
California courts often look to federal decisions interpreting federal antidiscrimination laws in interpreting FEHA. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 ["'"Because the antidiscrimination objectives and relevant wording of title VII of the Civil Rights Act of 1964 (Title VII) [(42 U.S.C. § 2000e et seq.)] [and other federal antidiscrimination statutes] are similar to those of the FEHA, California courts often look to federal decisions interpreting these statutes for assistance in interpreting the FEHA."'"]; Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 150 [same].)
Duran testified Gonzalez mocked her weight both in 2010 and June or July 2015. However, Duran was not pregnant in 2010, and she testified she did not believe Gonzalez's insults referred to her pregnancy.
Duran's reliance on Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and Accardi v. Superior Court (1993) 17 Cal.App.4th 341 is similarly misplaced. The plaintiff in Nazir suffered continuous harassment by his immediate supervisor and coworkers over the course of 13 years of employment based on his race, religion, and national origin. (Nazir, at pp. 257-261, 265.) Accardi likewise involved a plaintiff who alleged she was sexually harassed and retaliated against during her 11 years of employment as a police officer. (Accardi, at p. 353.) The Court of Appeal rejected the employer's argument the incidents within the limitations period differed from the earlier sexual harassment, concluding the plaintiff may be able to prove the "seemingly nondiscriminatory" later actions "were a continuation of prior discriminatory practices . . . used as a pretext to provide a deceptive cover of legitimacy." (Id. at p. 351.)
Because Duran failed to show the harassing conduct was continuous and the earlier conduct had not become permanent, we consider only evidence of conduct that occurred after October 8, 2014. D. Duran Failed To Raise a Triable Issue of Fact as to Her Sixth and Seventh Causes of Action for Harassment and Hostile Work Environment
Duran contends she has raised triable issues whether defendants harassed her due to her pregnancy. Defendants argue Duran failed to present evidence sufficient to demonstrate conduct that was sufficiently severe and pervasive to constitute harassment under FEHA. We agree with defendants.
We analyze Duran's sixth cause of action for harassment and her seventh cause of action for hostile work environment together because a hostile work environment claim is simply one theory on which to prove workplace harassment. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461 ["[T]he prohibition against sexual harassment includes protection from a broad range of conduct, ranging 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 on the basis of sex."].)
Under FEHA, it is unlawful "[f]or an employer . . . or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, [etc.,] to harass an employee . . . ." (§ 12940, subd. (j)(1).) "Actionable harassment consists of more than 'annoying or "merely offensive" comments in the workplace,' and it cannot be 'occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.' [Citation.] Whether the harassment is sufficiently severe or pervasive to create a hostile work environment 'must be assessed from the "perspective of a reasonable person belonging to [the same protected class as] the plaintiff."' [Citation.] In making this assessment, we consider several factors, including '"the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."'" (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 940 (Cornell); accord, Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 (Lyle); Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 38 (Caldera).) Whether the alleged conduct is sufficiently severe or pervasive is judged by the totality of circumstances. (Caldera, at p. 38.)
Effective January 1, 2019, the Legislature amended the Government Code to add section 12923, which in part altered the standard for unlawful harassment under FEHA. (See § 12923, subds. (b) [stating "[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment" and rejecting Ninth Circuit authority to the contrary] & (d) [stating standard "should not vary by type of workplace" and rejecting as contrary Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191].) The parties do not address whether the amendment applies to this case, and neither party contends the amendment alters the applicable standard as relevant to the issues on appeal. Under either the pre-amendment or post-amendment standard, Duran's harassment claims do not survive.
"'"[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. . . . [¶] . . . [¶] . . . [C]ommonly necessary personnel management actions . . . do not come within the meaning of harassment. . . . These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. . . . This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA."'" (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707; accord, Jumaane, supra, 241 Cal.App.4th at p. 1407 ["A disciplinary suspension does not constitute harassment under FEHA as a matter of law."]; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 879 ["The [employer's] statements and personnel decisions concerning Thompson do not create a material factual dispute as to harassment because '[h]arassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.'"].)
As part of Duran's harassment claim, she contends Rothey increased her workload to an unrealistic level without approving additional assistance for her while she was pregnant. But Duran testified Rothey's increase of her duties began in March 2015 when he assumed the role of administrator, three months before Duran disclosed her pregnancy (in June). At some point after Duran told Rothey she was pregnant, she met with him to ask for more staffing assistance. But Duran did not say she needed more help because she was pregnant, instead explaining she was in meetings all day and she "just couldn't be in all the places at the same time." Rothey laughed in response and said, "Well, you have to figure it out." Moreover, Rothey's setting of Duran's duties and level of staffing assistance constitute "'"[c]ommonly necessary personnel management actions"'" that do not support Duran's claims for harassment. (Roby v. McKesson Corp., supra, 47 Cal.4th at p. 707.)
Duran identifies other conduct by her coworkers suggesting a nexus between their actions and her pregnancy. Duran's coworkers called her "fat" and complained about her being late or absent due to her pregnancy. And on the day Duran returned from temporary pregnancy leave, two nursing assistants told her they "thought [she] [was] fired already." But there is no evidence Duran reported these comments to Rothey or any other supervisor, nor did she show why Atlantic should have known of this conduct. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1041 ["The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action."]; accord, Roby v. McKesson Corp., supra, 47 Cal.4th at p. 707.)
Atlantic had reason to know of just two incidents. First, when Rothey and Sheila told Duran she would need to accompany patients outside for smoke breaks, Duran refused, and Sheila accused Duran of using her pregnancy as an excuse. Second, when Duran arrived late to a meeting due to a pregnancy-related doctor's appointment, Linda mockingly referred to Duran as a "complainer" in front of the department heads and Rothey. These statements may have been hurtful to Duran, but "[FEHA] is not a civility code and is '"not designed to rid the workplace of vulgarity."'" (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 92; accord, Lyle, supra, 38 Cal.4th at p. 295 [FEHA "does not outlaw . . . language or conduct that merely offends."].) Further, Linda's and Sheila's comments were not extreme or "explicitly derogatory or threatening." (Cornell, supra, 18 Cal.App.5th at p. 940 ["Four comments over several months does not establish a pattern of routine harassment creating a hostile work environment, particularly given that the comments were not extreme."].) "[W]hen the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions." (Lyle, at p. 284.)
We reject Duran's contention Rothey's request she accompany patients on smoke breaks was impermissibly motivated by his animus toward her pregnancy. Duran was asked on only one occasion, refused, and never took any patient on a smoke break, while other presumably non-pregnant employees instead took the patients out for smoke breaks.
Duran has not raised a triable issue whether her coworkers' conduct, of which Atlantic was or should have been aware, was sufficiently severe or persuasive to constitute harassment based on her pregnancy. The evidence does not show behavior that a reasonable person working under the same conditions "'"would [have found] severely hostile or abusive."'" (Lyle, supra, 38 Cal.4th at p. 283; id. at p. 284 ["[A] plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff's position, considering all the circumstances, would not share the same perception."].) E. No Triable Issues of Fact Exist as to Whether Duran Was Constructively Discharged
Duran contends she was constructively discharged in September 2015, when her working conditions became intolerable. She supports this claim with the same evidence she presented to buttress her harassment claims: Rothey increased her workload and requested on one occasion she accompany patients on smoke breaks. Sheila told Duran she was using her pregnancy as an excuse not to accompany patients on smoke breaks; and Linda called Duran a "complainer" when Duran was late to a meeting due to a doctor's appointment. This claim fails.
Duran also relies on the comments of her coworkers calling her "fat," "young," and "stupid," complaining about her being late or absent, and telling her upon her return from leave they thought she was fired. But as discussed, there is no evidence Duran's supervisors or other managers were aware of these comments. Although Duran contends Atlantic intended and planned to terminate her during her leave, there is no admissible evidence to support this assertion.
Constructive discharge occurs "when the employer coerces the employee's resignation, either by creating working conditions that are intolerable under an objective standard, or by failing to remedy objectively intolerable working conditions that actually are known to the employer." (Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 737; accord, Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1245; Simers v. Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248, 1269.) "The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job . . . ." (Turner, at p. 1246.) "'Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job.'" (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1062 [supervisor's statements plaintiff deceived him about her pregnancy and her pregnancy was a hardship, and supervisor's forwarding of email with sensitive pregnancy information was not sufficiently severe or pervasive to support claims for harassment or constructive discharge].)
For the same reasons discussed as to Duran's harassment claims, Duran has not raised a triable issue that Atlantic created or failed to remedy conditions so intolerable a reasonable employee would have felt coerced to resign. F. No Triable Issues of Fact Exist as to Duran's First and Second Causes of Action for Sex and Disability Discrimination
FEHA prohibits an employer from terminating an employee based on the employee's protected status, including his or her sex or physical disability. (§ 12940, subd. (a).) To prevail on her FEHA discrimination claims, Duran must show "'(1) [s]he was a member of a protected class, (2) [s]he . . . was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.'" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067-1068, quoting Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)
Duran contends her constructive discharge and harassment on the basis of her pregnancy constitute adverse employment actions. But as discussed, Duran failed to raise a triable issue whether she was constructively discharged or subjected to actionable harassment. Duran has therefore failed to raise a triable issue whether she suffered an adverse employment action for purposes of her sex and disability discrimination causes of action. G. Duran Failed To Raise a Triable Issue of Fact as to Her Retaliation Claims
Duran also contends the trial court erred in failing to apply the cat's paw doctrine and consider the "stray remarks" of Duran's coworkers in considering her discrimination claims. Under the cat's paw doctrine, a "'showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.'" (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 743.) Duran is correct the stray remarks doctrine has been discredited, under which "'statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself'—do not constitute direct evidence of decision makers' 'substantial negative reliance on an illegitimate criterion in reaching their decision.'" (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 536, 540-544.) Neither doctrine is applicable here. Further, because we conclude Duran has not shown an adverse employment action, we do not reach whether Atlantic harbored discriminatory animus.
Duran's fifth, ninth, and tenth causes of action allege retaliation in violation of FEHA, Labor Code section 1102.5, and Health and Safety Code section 1432, respectively. Defendants contend summary adjudication was warranted on these claims because Duran has not shown Atlantic or Rothey subjected her to any adverse employment action. Defendants are correct.
1. Duran's FEHA retaliation claim
"'[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (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.'" (Cornell, at p. 942.) As discussed, Duran has not created a triable issue of fact that she suffered an adverse employment action under FEHA, defeating this retaliation claim.
2. Duran's retaliation claim under Labor Code section 1102 .5
An employer may not retaliate "against an employee for disclosing information . . . to a government or law enforcement agency [or] to a person with authority over the employee . . . if the employee has reasonable cause to believe that the information discloses a violation of [a] state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation . . . ." (Lab. Code, § 1102.5, subd. (b); accord, Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 591.) To show a prima facie case of retaliation under Labor Code section 1102.5, "the plaintiff must show (1) the plaintiff engaged in protected activity, (2) the defendant subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two." (Ross, at p. 592; accord, Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141.) FEHA's definition of an adverse employment action applies to retaliation claims under Labor Code section 1102.5. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1388.) Because Duran has not shown an adverse employment action, she has not raised a triable issue of fact as to this claim.
In addition, there is no evidence Surh or Atlantic was aware Duran made the complaints, which were made anonymously.
3. Duran's retaliation claim under Health and Safety Code section 1432
"No licensee shall . . . retaliate in any manner against any complainant, or any patient or employee in its long-term health care facility, on the basis or for the reason that the complainant, patient, employee, or any other person has presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding of any governmental entity relating to care, services, or conditions at that facility." (Health & Saf. Code, § 1432, subd. (a).)
Although no published opinion has discussed the elements of a retaliation claim under Health and Safety Code section 1432, Duran does not dispute this claim requires proof of an adverse employment action. Because Duran relies on the same constructive discharge and harassment theories to supply this element, she has failed to raise a triable issue of fact as to this claim. H. Duran Failed To Raise a Triable Issue of Fact as to Her FEHA Accommodation Claim
1. FEHA's requirements for reasonable accommodation
Under FEHA, it is an unlawful employment practice for an employer "to fail to make reasonable accommodation for the known physical or mental disability of an . . . employee" unless the accommodation would cause "undue hardship" to the employer. (§ 12940, subd. (m)(1); see Green v. State of California (2007) 42 Cal.4th 254, 262; Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1166 (Featherstone).)
The elements of a failure to accommodate claim are "'(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.'" (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969; accord, Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.) The plaintiff employee bears the burden of showing he or she was able to do the job with a reasonable accommodation. (Green v. State of California, supra, 42 Cal.4th at p. 262; Lui, at p. 971.)
"An employer's duty to reasonably accommodate an employee's disability is not triggered until the employer knows of the disability." (Featherstone, supra, 10 Cal.App.5th at pp. 1166-1167; accord, Cornell, supra, 18 Cal.App.5th at p. 938 ["'[t]he employee bears the burden of giving the employer notice of his or her disability'"].)
Although Duran also argues Atlantic failed to engage in a good faith interactive process (§ 12940, subd. (n)), the complaint does not allege this cause of action, and Duran may not raise the claim for the first time in opposing summary judgment. (See Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 585 ["A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers."].)
2. Duran did not present evidence Atlantic failed to accommodate her pregnancy
Duran argues Atlantic failed to accommodate her pregnancy by "overburden[ing]" her with work, denying her requests for assistance, "unreasonably criticiz[ing] . . . her performance," and "subject[ing] [her] to cigarette smoke" and "disparaging comments." Duran further contends Atlantic failed to accommodate her reasonable need for medical leave without "repercussion." Duran's contentions lack merit.
Pregnancy is considered a disability under FEHA when it limits the employee's ability to work. Here, Duran did not present evidence Atlantic was aware Duran's pregnancy limited her ability to work. Duran testified she met with Rothey sometime after he learned she was pregnant to request additional help with her job duties, which request Rothey denied. But, as discussed, there is no evidence Duran identified her pregnancy as an impediment to her job performance during this meeting. Rather, Duran told Rothey she could not be in three places at once, a complaint not related to Duran's pregnancy. Further, there is no evidence to support Duran's contention Rothey increased her workload once he learned she was pregnant because he made the changes when he became administrator in March 2015, three months before Duran told him she was pregnant. Because there is no evidence Atlantic was aware Duran's pregnancy limited her ability to work, Atlantic had no duty to accommodate her by reducing her workload. (Cornell, supra, 18 Cal.App.5th at p. 938; Featherstone, supra, 10 Cal.App.5th at pp. 1166-1167.)
FEHA defines a physical disability to include a physiological condition that affects the "reproductive" bodily system (§ 12926, subd. (m)(1)(A)) and "[l]imits a major life activity" (id., subd. (m)(1)(B)). A physiological condition "limits a major life activity if it makes the achievement of the major life activity difficult." (Id., subd. (m)(1)(B)(ii).) Working is a major life activity. (Id., subd. (m)(1)(B)(iii).)
Duran's argument Atlantic failed to accommodate her pregnancy by "subject[ing] [her] to cigarette smoke" also lacks evidentiary support. After Duran refused to accompany patients on their smoke breaks because of her pregnancy, Duran was never required to take a patient out to smoke. Duran has provided no authority for her contention Atlantic failed to accommodate Duran's disability by not taking action to silence her coworkers from making disparaging comments. Moreover, there is no evidence Rothey (or Atlantic) was aware of the coworkers' comments.
Finally, Duran does not dispute she received the leave she requested in August and September 2015. Her contention she suffered "repercussions" for taking leave is again without evidentiary support.
I. No Triable Issues of Fact Exist as to Whether Atlantic Violated the PDLL
"The PDLL provides that . . . an employer must 'allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work, as set forth in the commission's regulations. The employee shall be entitled to utilize any accrued vacation leave during this period of time. Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or a related medical condition . . . .' (§ 12945, subd. (a)(1).)" (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1337; see Cal. Code Regs., tit. 2, § 11042, subd. (a) ["All employers must provide a leave of up to four months, as needed, for the period(s) of time an employee is actually disabled because of pregnancy even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees."].)
In her fourth cause of action, Duran contends Atlantic violated the PDLL by terminating her employment in response to her taking pregnancy leave. As discussed, there is no support for Duran's assertion Atlantic terminated her, or sought to terminate her, for taking pregnancy-related leave. Rather, the record reflects Duran resigned the day she returned from approved leave, and Duran has not raised a triable issue of fact that she was constructively discharged.
Duran also contends Atlantic retaliated against her in violation of the PDLL when she returned from leave in early 2014 following her second pregnancy. But Duran's leave for her second pregnancy ended on December 30, 2013, outside the limitations period. Further, Atlantic approved Duran's return to work on a temporary part-time basis, and when Duran returned, the work environment improved under the supervision of administrator McClain. Duran did not present any evidence of retaliation by McClain or another supervisor during this period. J. The Trial Court Properly Granted Summary Adjudication of Duran's Eighth Cause of Action for Failure To Prevent Discrimination, Harassment, and Retaliation
Section 12940, subdivision (k), provides it is an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Further, "retaliation is a form of discrimination actionable under section 12940, subdivision (k)." (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1239, disapproved of on another ground by Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.) To prove a claim for failure to prevent, a plaintiff must show (1) plaintiff was subjected to discrimination, retaliation, or harassment; (2) the defendant failed to take all reasonable steps to prevent discrimination, retaliation, or harassment; and (3) the failure caused plaintiff to suffer injury, damage, loss, or harm. (Caldera, supra, 25 Cal.App.5th at pp. 43-44 [setting forth elements as to failure to prevent harassment claim].)
A claim for failure to prevent discrimination, retaliation, or harassment is derivative of a claim for the underlying violation. (See Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597; Featherstone, supra, 10 Cal.App.5th at p. 1166.) Because Duran's underlying claims of discrimination, harassment, and retaliation fail, so does her claim for failure to prevent. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1318 ["There cannot be a claim for failure to take reasonable steps necessary to prevent sex discrimination under section 12940, subdivision (k) if actionable sex discrimination has not been found."]; Thompson v. City of Monrovia, supra, 186 Cal.App.4th at p. 880 ["the employee has no cause of action for a failure to investigate unlawful harassment or retaliation, unless actionable misconduct occurred"]; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021 ["Because we affirm summary judgment on all of Scotch's FEHA causes of action, we also affirm summary judgment on the failure to provide an environment free from discrimination cause of action."].) K. No Triable Issues of Fact Exist as to Duran's 14th Cause of Action for Failure To Reimburse Expenses
Duran contends in support of her 14th cause of action for failure to reimburse expenses, in violation of Labor Code section 2802, that she incurred work-related expenses of up to $400 per month on supplies for patient activities for which she had to wait up to a month for reimbursement because Atlantic required her to submit her expense claims on a monthly basis. Duran does not contend Atlantic failed to reimburse her for these expenses, only that its reimbursements were untimely. Duran's argument lacks merit.
Labor Code section 2802, subdivision (a), provides, "An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . . ." (See USS-Posco Industries v. Case (2016) 244 Cal.App.4th 197, 205 [affirming summary adjudication for employer where expenditures were not "necessary" to employment duties]; Cochran v. Schwan's Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1143-1144 [employer must pay reasonable percentage of employee's cell phone bill where employer required use of personal cell phone for work purposes].)
Duran cites no authority for the proposition an employer must reimburse its employees' work-related expenses more frequently than once a month. Instead, Duran analogizes to Labor Code section 204, subdivision (a), which requires an employer to pay its employees' wages "twice during each calendar month." However, section 2802 contains no similar language and does not dictate a strict timeframe for reimbursement.
"In interpreting a statute, this court's '"fundamental task . . . is to determine the Legislature's intent so as to effectuate the law's purpose."'" (Jackson v. LegalMatch.com (2019) 42 Cal.App.5th 760, 767-768, quoting Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856.) "[W]e must rely on a statute's '"plain and commonsense meaning" unless the statute specifically defines the words to give them a special meaning.'" (Jackson, at p. 771.) "'When one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to convey a different meaning.'" (Romano v. Mercury Ins. Co. (2005) 128 Cal.App.4th 1333, 1343, quoting Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 73; see Cornette, at pp. 73-74 ["A court may not rewrite a statute, either by inserting or omitting language, to make it conform to a presumed intent that is not expressed."]; Walt Disney Parks & Resorts U.S., Inc. v. Superior Court (2018) 21 Cal.App.5th 872, 879 ["Where, as here, the Legislature has chosen to include a phrase in one provision of the statutory scheme, but to omit it in another provision, we presume that the Legislature did not intend the language included in the first to be read into the second."].)
We decline to read into Labor Code section 2802 an unwritten requirement parallel to that expressly contained in Labor Code section 204. If the Legislature had intended to require employers to reimburse employees' necessary work-related expenses twice during each calendar month, it would have said so. It did not. Further, even if Labor Code section 2802 impliedly imposed an outer time limit for a timely reimbursement, Duran has not shown that monthly reimbursement is untimely.
Duran's reliance on Stuart v. RadioShack Corp. (N.D. Cal. 2009) 641 F.Supp.2d 901, is unavailing. The court in Stuart held an employer's duty to indemnify its employee under Labor Code section 2802 is triggered once the employer knows or has reason to know of the expenditure, regardless of whether the employee formally requests reimbursement. (Id. at p. 903.) The court did not address the timeliness of reimbursement other than stating the employer "must exercise due diligence to ensure that [the] employee is reimbursed." (Ibid.) There is no dispute Duran requested reimbursement, which Atlantic approved and compensated within one month.
L. No Triable Issues of Fact Exist as to Duran's Conversion Cause of Action
Duran bases her 15th cause of action for conversion on Atlantic's failure to provide statutory wage premiums under Labor Code section 226.7 for her missed meal and rest breaks. We agree with defendants that a conversion claim cannot be based on Atlantic's alleged failure to pay premium wages under the Labor Code.
Labor Code section 226.7, subdivision (c), provides, "If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law . . . the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each workday that the meal or rest or recovery period is not provided." As Duran correctly notes, these payments are a form of wages. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114 [premium wages under Lab. Code, § 266.7, subd. (c), are wages subject to three-year statute of limitations, rather than penalties subject to one-year statute of limitations]; accord, Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 52 ["The additional hour of pay required by Labor Code section 226.7 is a premium wage."].)
"'"'Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. . . .'"'" (Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 551; accord, Voris v. Lampert (2019) 7 Cal.5th 1141, 1150 (Voris).)
As the Supreme Court held in Voris, supra, 7 Cal.5th at page 1144, a failure to pay wages cannot support a conversion claim. The Voris court reasoned, "The employee's claim is not that the employer has wrongfully exercised dominion over a specifically identifiable pot of money that already belongs to the employee—in other words, the sort of wrong that conversion is designed to remedy. Rather, the employee's claim is that the employer failed to reach into its own funds to satisfy its debt." (Id. at pp. 1152-1153; see Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 284 ["the simple failure to pay money owed does not constitute conversion"].) The Voris court observed that recognizing a conversion claim for unpaid wages would largely duplicate the remedies already provided by the Labor Code and traditional contract principles, and "to that extent [it] would serve little purpose." (Voris, at p. 1158.)
For purposes of whether a conversion cause of action can be maintained for premium pay under Labor Code section 226.7, there is no material distinction from the unpaid wages in Voris. By Duran's own argument, the monies Atlantic allegedly owed her for missed meal and rest breaks are unpaid wages.
Duran's reliance on Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084 (UI Video Stores) is misplaced. There, the Division of Labor Standards Enforcement (DLSE) brought a conversion claim to recover from an employer checks it had issued to employees that were returned as undeliverable. The employer had issued the checks to reimburse employees for the cost of uniforms under a settlement agreement between the employer and DLSE. (Id. at pp. 1088-1089.) The Court of Appeal rejected the employer's argument DLSE could not assert a conversion claim on behalf of the employees on the basis it lacked authority to exercise dominion and control over the checks. (Id. at pp. 1095-1096.) As the Voris court explained in distinguishing UI Video Stores, "The act of conversion that the court recognized in UI Video Stores was the defendant's misappropriation of certain checks that it had cut and mailed to employees as part of the settlement agreement—checks that at least arguably became the property of the employees at that time. The defendant's failure to pay wages in the first instance was not remedied through a conversion claim, but rather through DLSE's enforcement action under the Labor Code. Whether the employees could have sustained a conversion action for the unpaid uniform reimbursements themselves is a matter that was not at issue in UI Video Stores, and which the court did not address." (Voris, supra, 7 Cal.5th at p. 1155.) M. The Trial Court Did Not Abuse Its Discretion by Appointing a Discovery Referee and Requiring Duran To Pay 50 Percent of the Referee's Fees
1. The trial court's rulings
On July 5, 2017 defendants filed a motion to compel Duran to provide responses to interrogatories and requests for production. After a July 31 hearing, the trial court appointed retired Judge Chris Conway as an "evidentiary referee pursuant to Code of Civil Procedure section 639[, subdivision] (a)(5)," noting "[t]here appear to be over 100 items at issue." The minute order provided for each side to pay 50 percent of the referee costs, "subject to reallocation by the referee." On August 21 the court issued an "order appointing referee," in which the court formally appointed Judge Conway "to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation." The court found, "No party has established an economic inability to pay a pro rata share of the referee's fees."
On September 18, 2017 Duran filed an ex parte application for reconsideration of the court's appointment orders. Duran argued in her application the court had appointed the discovery referee "by its own motion" and she could not afford to pay 50 percent of the referee's fees due to "economic hardship." In an attached declaration, Duran stated, "I am not employed. [¶] . . . I struggle financially, and have very limited funds to pay for . . . basic living expenses, let alon[e] an expensive private discovery referee. At the moment, I cannot afford to pay any portion of discovery referee's fee." Duran submitted a bill from the referee for $3,195, covering a case management fee and 10-hour retainer.
Although Duran styled her papers as an "opposition to the court's appointment of discovery referee" (capitalization omitted), the application was not filed as a noticed motion, did not give defendants an opportunity to respond, and sought to revisit the court's earlier rulings. We therefore treat the filing as an ex parte application for reconsideration. (See J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1171 ["'The name of a motion is not controlling, and, regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under . . . section 1008.'"]; Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673, 681 ["The motion [for clarification], despite its label, was in substance a motion for reconsideration."].)
The next day the trial court denied Duran's application. The court noted it "read and considered [the] motion although it was not timely filed."
Under section Code of Civil Procedure 1008, subdivision (e), the trial court generally has no jurisdiction to hear a motion for reconsideration that does not comply with the requirements of the section. (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1278; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391.) However, there is an "exception to section 1008's 'jurisdiction[al]' [citation] exclusivity" where a trial court reconsiders its prior interim order on its own motion. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840 [Code Civ. Proc. § 1008 "'do[es] not limit a court's ability to reconsider its previous interim orders on its own motion,' even while it 'prohibit[s] a party from making renewed motions not based on new facts or law'" (quoting Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097)].) Here, the trial court acknowledged Duran's application was untimely because it was filed more than 10 days after the issuance of the appointment order (see Code Civ. Proc., § 1008, subds. (a) & (e)), but the court exercised its discretion to consider the late-filed motion. (See In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1303-1304 ["the trial court's inherent authority to correct its errors applies even when the trial court was prompted to reconsider its prior ruling by a motion filed in violation of [Code of Civil Procedure] section 1008"].)
2. Governing law
Code of Civil Procedure section 639, subdivision (a)(5), provides the trial court may appoint a referee to hear and decide discovery motions and to apportion payment of the referee's fees among the parties. Code of Civil Procedure section 639, subdivision (d)(6)(A), requires the trial court to determine whether any party "has established an economic inability to pay a pro rata share of the referee's fee." "[I]n determining whether a party has established an inability to pay the fees, [the court] shall consider, among other things, the estimated cost of the referral and the impact of the proposed fees on the party's ability to proceed with the litigation." (Code Civ. Proc., § 639, subd. (d)(6)(B).) In addition, Code of Civil Procedure section 645.1, subdivision (b), provides the court, in appointing a referee under section 639, "may order the parties to pay the fees of referees . . . in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties." Trial courts abuse their discretion in ordering allocation of referee fees where they fail to consider a party's financial inability to pay the costs of the referee. (McDonald v. Superior Court (1994) 22 Cal.App.4th 364, 370 (McDonald); Solorzano v. Superior Court (1993) 18 Cal.App.4th 603, 617.)
3. Duran has failed to carry her burden to show the trial court erred in appointing a discovery referee
Duran contends the trial court appointed a discovery referee "on the court's own motion" although "there was no necessity for a discovery referee" (bold and capitalization omitted). The record reflects the court appointed a referee after hearing defendants' motion to compel discovery responses. However, the record on appeal does not include the motion, Duran's opposition, defendants' reply, or any other record of the hearing on the motion. Although there was no reporter present at the July 25, 2017 hearing after which the trial court appointed the discovery referee, Duran could have filed an agreed or settled statement of the proceedings. (Cal. Rules of Court, rules 8.134 [agreed statement] & 8.137 [settled statement].) We have no record on which to assess the circumstances under which the trial court appointed the discovery referee.
On appeal, "'"(1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error."'" (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 996; accord, Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.) "'"Failure to provide an adequate record on an issue requires that the issue be resolved against appellant."'" (Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 940; accord, Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348 ["By failing to provide an adequate record, appellant cannot meet his burden to show error and we must resolve any challenge to the order against him."].) In the absence of a record showing otherwise, Duran has not carried her burden to show the trial court abused its discretion in appointing a discovery referee.
4. The trial court did not abuse its discretion in denying Duran's ex parte application for reconsideration
Duran contends the trial court abused its discretion in denying her request it reconsider the discovery referral requiring her to pay 50 percent of the referee's fees, arguing she is "impecunious" and cannot "pay thousands of dollars a day for a referee without extreme hardship." The trial court did not abuse its discretion. (See Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392, 408 ["An abuse of discretion standard applies to a court's denial of a motion for reconsideration."]; Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 106 [same].)
The trial court found in its August 21, 2017 order that no party had established an inability to pay a pro rata share of the referee's fees. In her declaration in support of her ex parte application, Duran stated she was not employed, she "struggle[d] financially, and [had] very limited funds to pay for . . . basic living expenses," and she could not afford to pay for any part of the discovery referee's fees. However, Duran did not state in her declaration what "limited funds" she had (that is, what income or assets she had), or what the impact would be from her having to pay her share of the referee fees (e.g., her inability to pay her other expenses). Further, Duran waited seven weeks after entry of the July 31 minute order—and until after receiving a bill from the referee for his services—to file her ex parte application for relief. Duran failed to explain why she raised her economic hardship by an ex parte application, which by its nature provided defendants with little opportunity to respond. The application also failed to comply with the requirement an ex parte application be supported by "an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." (Cal. Rules of Court, rule 3.1202(c).)
McDonald, supra, 22 Cal.App.4th 364, relied on by Duran, is distinguishable. In McDonald, after the plaintiff moved to compel the production of documents, the trial court referred the motion and all further discovery disputes to a referee and apportioned the costs equally between the parties. The plaintiff then brought a renewed motion supported by a declaration stating she was "'without any source of income whatsoever,'" was "'homeless and trying to find employment,'" was "'unable to afford any costs'" of a referee, and would be unable to continue prosecuting her lawsuit if required to bear costs. (Id. at p. 366.) After the trial court denied the plaintiff's renewed motion, the plaintiff petitioned for a writ of mandate, which the Court of Appeal granted, reasoning the plaintiff had made an adequate showing based on her declaration she did not have the ability to pay any referee fees. (Id. at p. 370.)
The trial court here had less information than the court in McDonald. Certainly a plaintiff who has no source of income and is homeless because she cannot pay her rent has no ability to pay any referee fees. (McDonald, supra, 22 Cal.App.4th at p. 366.) Further, the plaintiff in McDonald filed a motion in response to the court's order before the referee started working on her case. (Id. at p. 370 ["[W]henever the issue of economic hardship is raised before the commencement of the referee's work, the referring court must determine a fair and reasonable apportionment of reference costs before issuing its order."]; see also Solorzano v. Superior Court, supra, 18 Cal.App.4th at p. 609 [trial court abused its discretion by apportioning referee costs to plaintiffs who were proceeding in forma pauperis and objected at time of hearing based on indigence].) Although we are receptive to the plight of a plaintiff who is forced to pay the costs of a discovery referee absent an ability to pay, on the unique facts here, Duran has not met her burden to show the trial court abused its discretion in denying her belated motion for reconsideration.
DISPOSITION
The judgment is affirmed. Defendants are to recover their costs on appeal.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.