Opinion
B197195
6-24-2008
BETTY JONES, Plaintiff and Appellant, v. SOCIAL VOCATIONAL SERVICES, INC., Defendant and Respondent.
Shegerian & Associates, Carney R. Shegerian; Pine & Pine and Norman Pine for Plaintiff and Appellant. Law Office of Lawrence J. Lennemann and Lawrence J. Lennemann for Defendant and Respondent.
Not to be Published
Betty Jones took an unpaid medical leave from her job for hip replacement surgery. When she had not come back to work five months later, the employer fired her. Jones sued, claiming her employer discriminated against her in violation of the California Fair Employment and Family Rights Acts, failed to accommodate her disability, and breached an implied or express oral contract not to terminate her employment except for good cause. The employer moved for and the trial court granted summary adjudication of each claim. We conclude the court properly granted summary adjudication on the contract claims, because Joness employment was indisputably at will. But summary adjudication should not have been granted on the statutory causes of action because a disputed material fact exists: whether the employer had a policy that — upon expiration of the permitted leave period — the employee had to return to work at full capacity (that is, without any accommodation).
FACTS AND PROCEDURAL HISTORY
On appeal from summary judgment, we draw our factual summary from the undisputed facts in the parties moving and opposing papers. We resolve any evidentiary doubts or ambiguities in favor of Jones, the opposing party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Code Civ. Proc., § 437c, subd. (c).)
Jones worked for Social Vocational Services, Inc. (SVS), a nonprofit social services agency, from February 1988 until her termination on December 3, 2004. Angelo Villegas, Joness supervisor for the three years before she was fired, described her as "an adequate worker in what she did." Jones was an operations manager. In that job, she was responsible for scheduling workers and contracts; overseeing the repair of company vehicles, client payroll, and contract billings and summaries; conducting client wage assessments; and making field site visits. Jones spent most of her time at work on the phone, doing paperwork, or talking to clients and customers. Occasionally, operations managers were required to test-drive vehicles, to fill in for absent employees, or to go out in the field. At least once a month, Jones had to make field site visits. That task required her to walk a short distance. Even though her title included the word "manager," Jones did not perform any supervisory functions.
In 2004, Jones began to have pain in her hip. She was diagnosed with osteoarthritis and told she needed hip replacement surgery.
SVSs Personnel Policies provide that: "[In accordance with] [t]he California Family Rights Act (CFRA) and the [federal] Family and Medical Leave Act (FMLA) . . ., employees who have been employed with SVS for [a year] may request an unpaid leave of up to twelve (12) work weeks . . . per year for . . . [¶] . . . [¶] . . . [a] serious health condition that makes the employee unable to perform one or more of the essential functions of his/her job." SVSs "Rules Governing Unpaid Time Off" include, as pertinent here: (1) An employee returning from FMLA/CFRA leave will be reinstated to the position he or she held before the leave; (2) an employee returning to work from a medical or disability leave must — before returning — submit a certificate from a health care provider attesting to the employees "fitness for duty"; and (3) "[i]f an employee fails for any reason to return to work promptly upon the expiration of an approved leave of absence and has not obtained an extension prior to such expiration date, the employee will be considered to have voluntarily resigned." The policies do not specify from whom an employee must obtain an extension before his or her FMLA/CFRA leave expires. However, SVSs form "Response To Request For Leave" requires an employee who needs to extend a medical leave to "notify [his or her] supervisor of the situation prior to [his or her] initially anticipated date of return." Jones acknowledged in writing that she had received a copy of the policies and that she understood they governed her employment relationship with SVS.
In July 2004, Jones asked for and received approval from Rebecca Miller, SVSs director of personnel, for medical leave. Joness unpaid medical leave was scheduled to begin on July 6, 2004, and to end on October 1, 2004, when she was expected to return to work. The form approving Joness leave provided, "If this leave is for your own serious health problem, you will be required to provide a health care practitioner signed fitness for duty certificate before returning to work."
Jones had hip surgery on July 6, 2004. After the surgery began, it turned out Jones had an infection, and her hip could not be replaced until the infection had cleared up. Jones told Villegas about this complication and the concomitant delay in her hip replacement surgery. She spent the next month recuperating at home and taking antibiotics. Jones had a second surgery and successful hip replacement on August 10, 2004. Joness doctor told her she would not be able to return to work in October 2004. He set a new return date in January 2005.
In late September, Jones told Villegas she would not be able to return to work in October. She sent Villegas a statement from her surgeon, Dr. Jeffrey Spychalski, stating Jones would be temporarily totally disabled until January 10, 2005. Villegas received the note and sent it on to Miller. However, Miller later said she never received the doctors statement. Jones did not contact or provide documentation to Miller or anyone else at SVS about extending her leave because Villegas told her he would take care of contacting SVSs corporate office, and because Jones understood — based on the document granting her leave request — that she was to notify her immediate supervisor before her original return date of the need for an extension.
Jones did not return to her job at SVS in October 2004. Between October 1 and December 3, 2004, no one at SVS contacted Jones to ask why she had not come back as planned. On December 3, Miller called Jones and asked her how much longer she thought she would be out. Jones referred to the doctors note; Miller said she would call Villegas and call Jones back. Miller then called Jones back and told her she "[was being] terminated because [she] had taken off too long." Miller later explained that she had extended Joness leave for nine weeks beyond the 12-week maximum "[b]ecause Betty was a very good friend of mine and I was hoping that she would be able to come back, and I went off the policies and extended her leave on my own." Miller told Jones that, "since she had a doctors note now that said she was still totally disabled, we would keep her job open until January 10th and see what the doctor said at that time, and wed pay for her medical insurance for December and January and hold the position open and wait to see what happens when she goes to her appointment on January the 10th." While Miller said she had to "process the termination," SVS was "definitely" going to rehire her. An "Employee Separation Form" sent to Jones on December 3, states she "voluntarily resign[ed]" as a result of a "[l]eave of [a]bsence (FMLA) extended past the time allowed per [SVSs] policy." The form indicated that Jones was "[e]ligible for rehire."
At her deposition, Jones first testified that she did not recall whether Miller told her that she had to return to work without restrictions. Later, Jones testified that she "thought" Miller had said that. According to Villegas, SVS did not require Jones to be able "fully" to work — without restrictions — in order to return to work. However, Jones called Villegas and told him that "she needed a note" saying that she could not return to work until and unless she was "released to full duty." Villegas sent the requested letter to Joness doctor on January 3, 2005. The letter said that, for Jones to resume her position, she "must be able to return to work at Full Duty with No Restrictions." Villegas had no authority to send this letter. Villegass statements in the letter were "based entirely on what [Jones] told [him] to put in the document." Jones admits she asked Villegas for the letter. But, she says, she asked for it to confirm what Villegas had told her: that he had talked with the "corporate office" and "they" said Jones could return to work as long as she had no restrictions. Jones made a "conscious decision" not to go back to SVS.
Dr. Spychalskis September 20, 2004 note said Jones would be totally disabled until January 10, 2005. On November 15, 2004, Dr. Spychalski signed two documents stating that Jones would be totally disabled until January 28, 2005. (Jones never gave SVS a copy of these November documents, so when Miller fired Jones on December 3, she had only the earlier note anticipating a January 10 return date.) After seeing Jones on January 3, 2005, Dr. Spychalski wrote that Jones remained totally disabled and unable to work; he anticipated she would be able to return to work on March 5 or 10, 2005. Dr. Spychalski wrote, of that visit, that Jones was "doing well" but was "not really mobile" and "not ready to return to work." The doctor thought it would "be at least another couple of months." He noted that Jones had told him she was "going to seriously consider retiring at this point." (Jones objected to SVSs submission of all of these documents, including Dr. Spychalskis January 2005 note, as irrelevant and hearsay. The trial court overruled Joness objections.) Dr. Spychalski did not see Jones after January 3, 2005. So he did not make any assessments after that date of whether she remained disabled and, if so, whether that disability was total or partial.
More than a year later, on February 24, 2006, Dr. Robert Comer, Joness regular doctor, certified that she continued to be totally disabled and was undergoing regular treatment. When asked to specify how many more weeks or months Jones would be disabled, Dr. Comer indicated "[p]ermanent." On March 31, 2006, an insurance claim form Jones signed stated that she remained under treatment by Dr. Comer. In response to the question "Is the patient still totally disabled (unable to work)?", Jones, Dr. Comer, or someone from his office wrote: "yes — permanently disabled." On May 16, 2006, Dr. Comer wrote that Joness condition was "[u]nimproved" and that she remained totally disabled for "her regular occupation" (although not for any occupation). In response to the question when he thought Jones would be able to resume work, Dr. Comer checked the box for "[i]ndefinite," declining to state an approximate date. Jones never told Villegas that her doctor had released her to come back to work in any capacity. In fact, no doctor ever has released Jones to return to work.
Jones exhausted her administrative remedies and then filed this lawsuit in February 2006. After Jones served her complaint on SVS, Miller sent her a letter. Miller noted that the document Jones had provided from Dr. Spychalski had said she was totally disabled until January 10, 2005. "Thus," Miller wrote, "SVS understood that you remained `totally disabled six months after beginning your leave, which exceed[ed] the provided SVS leave by approximately three months." Miller noted that SVS had left Joness "position open until January 10, 2005 in the hopes that [Jones] would be able to return to work." But on January 10, "SVS was informed that [Jones] remained `totally disabled. " Miller went on: "I understand from your Complaint that you desire `reinstatement of employment. With that in mind and as, again, SVSs first notification that you were able to return to work was upon its receipt of your Complaint, SVS is pleased to offer to you a position of employment." According to Miller, SVS then waited for Jones to call. But Jones never responded to Millers March 2006 letter offering her job back.
In this lawsuit, Jones alleged causes of action for disability discrimination and failure to provide reasonable accommodation in violation of the Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq.; discrimination and retaliation for having taken leave under the CFRA, Government Code section 12945.2; and breaches of an implied or express oral employment contract. SVS answered the complaint and eventually moved for summary judgment. It argued Jones could not prevail on any claim because: (1) her employment was indisputably at will; and (2) at the time of her termination — after 21 weeks of leave (nine more than company policy allowed) — Jones remained temporarily totally disabled and unable to return to work. Jones opposed the motion, asserting that (1) factual disputes precluded summary adjudication of each of her claims; (2) the facts belied SVSs insistence that its policies required that Jones be fired and, even if SVS could substantiate that contention, a condition that she return at full capacity would violate FEHA; (3) Joness attestation of total disability on benefit application forms was irrelevant to her FEHA claims; and (4) SVSs reliance in its motion on Joness inability to answer deposition questions about her legal contentions was improper. Jones lodged evidentiary objections to materials SVS filed in support of its motion. Jones also moved to compel SVSs executive director to answer deposition questions about who served on SVSs board of directors, so that Jones could reopen discovery and depose the board members about SVS personnel policies.
SVS replied, lodged evidentiary objections to a declaration Jones filed in support of her opposition to the motion, and opposed Joness request to take further discovery.
After oral argument, the trial court denied Joness request to continue the hearing so she could take more discovery and overruled her evidentiary objections. The court sustained SVSs objections to parts of Joness declaration, and granted summary judgment to SVS.
SVS also moved for sanctions against Jones under Code of Civil Procedure section 2033.420, asserting that she unreasonably had denied SVSs requests for admission later proved true. The court granted that motion and ordered Jones to pay attorney fees of $3,000. Jones appeals from the judgment in favor of SVS and the order awarding sanctions.
DISCUSSION
I. Summary Judgment
"The grant and denial of summary judgment or summary adjudication motions are subject to de novo review." (Nakamura v. Superior Court (2000) 83 Cal.App.4th 825, 832.) "[I]n moving for summary judgment, a `defendant . . . has met his `burden of showing that a cause of action has no merit if [the defendant produces direct or circumstantial evidence to show] `that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. " (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar); Code Civ. Proc., § 437c, subd. (o)(2).) "Once the defendant . . . has met [his] burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Ibid.)
"While we must liberally construe plaintiffs showing and resolve any doubts about the propriety of a summary judgment in plaintiffs favor, plaintiffs evidence remains subject to careful scrutiny." (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 (King).) "We can find a triable issue of material fact `if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. " (King, supra, 152 Cal.App.4th at p. 433 [quoting Aguilar, supra, 25 Cal.4th at p. 850].) A plaintiffs subjective beliefs in an employment discrimination case do not create a genuine issue of fact, nor do uncorroborated and self-serving declarations. (Chiaramonte v. Fashion Bed Group, Inc. (7th Cir. 1997) 129 F.3d 391, 401.)
II. Disability Discrimination and Failure To Provide Reasonable Accommodation
FEHA outlaws several employment practices relating to physical disabilities. As relevant here, it is an unlawful employment practice:
• Because of a physical disability, "to discharge [a] person from employment . . . or to discriminate against [a] person in . . . terms, conditions, or privileges of employment." (Gov. Code, § 12940, subd. (a).) This provision does not prohibit the discharge of an employee with a physical disability where the employee "is unable to perform his or her essential duties even with reasonable accommodations . . . ." (Id., subd. (a)(1).)
• "[T]o fail to make reasonable accommodation for the known physical . . . disability of an . . . employee," unless the accommodation is shown to produce undue hardship to the employers operation. (Id., subd. (m).)
• "[T]o fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical . . . disability . . . ." (Id., subd. (n).)
Separate causes of action exist for each of these unlawful practices. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).)
To establish a prima facie case of physical disability discrimination under FEHA, Jones must show she is disabled, is otherwise qualified to do her job, and was subjected to an adverse employment action because of her disability. (King, supra, 152 Cal.App.4th at p. 432; Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) If Jones met this initial test, SVS would be required to demonstrate a legitimate nondiscriminatory reason for its employment decision. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) Jones then would have to come back with substantial evidence that SVSs stated reason was "untrue or pretextual," to raise at least an inference of discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005; Jones v. Department of Corrections (2007) 152 Cal.App.4th 1367, 1378 [plaintiff must demonstrate a nexus between the adverse employment action and her status as a member of a protected class].)
Under FEHA, as under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (ADA), a plaintiff must prove that she is a "qualified individual" — that is, that she can perform the essential functions of the job with or without reasonable accommodation. (Green v. State of California (2007) 42 Cal.4th 254, 260 (Green); 42 U.S.C. § 12112(a).) Here, Jones presented no evidence that she was able to perform the essential functions of her job, with or without reasonable accommodation. When Joness hip replacement surgery was delayed by an infection, her doctor — in a "Certificate of Disability — Work/School" — wrote on September 20, 2004 that she was "[t]emporarily totally disabled until" January 10, 2005. In that note, the doctor did not say whether Jones would be able to return to work with limitations or to full duty or at all. In mid-November 2004, Joness doctor apparently extended the "totally disabled until" date to January 28, 2005. When Jones saw her doctor on January 3, 2005, however, he concluded that she remained totally disabled; he thought she would be able to resume work on about March 5, 2005. Well into the spring of 2006, however, Joness doctors continued to write that she was totally disabled, and one of them stated she was permanently disabled.
Jones argues in essence that she did not pursue a return-to-work clearance from her doctor because SVS fired her before January 5, the date that her doctor had anticipated in his September 2004 note as a possible return-to-work date. SVS, Jones says, fired her for exceeding the 12-week maximum leave but, as she remained disabled, this amounted to an unlawful termination because of her disability and in violation of FEHA. It is undisputed that SVS terminated Joness employment after her initial return-to-work date but before the date on which her doctor later wrote that he anticipated she would be able to return to work. It also is undisputed that, when SVS terminated her, Jones remained totally disabled and unable to return to work in any capacity.
The trial court stated that SVS had "shown by undisputed facts that it granted [Jones] her full allowance (12 weeks) of unpaid FMLA/CFRA leave . . ., that [Jones] did not return to work on October 4 or thereafter, and that on December 3, 2004 [SVS] terminated [Jones] because she had taken off too long." Therefore, the court concluded, SVS had "thus made a prima facie showing that [Jones] cannot show at least one element of her cause of action — that [SVS] terminated [Jones] because of her disability." The problem with this analysis is that the reason Jones did not return to work was that she remained disabled. And, Jones says, she never presented SVS with a doctors certificate that she could return to work in some capacity because SVS told her that she could not come back with any restrictions — that she had to return "at full duty." "A policy requiring an employee be `100 percent healed before returning to work is a per se violation" of FEHA as well as the ADA, "because it permits an employer to avoid the required individualized assessment of the employees ability to perform the essential functions of the job with or without accommodation." (Gelfo, supra, 140 Cal.App.4th at p. 49, fn. 11, citing McGregor v. National R.R. Passenger Corp. (9th Cir. 1999) 187 F.3d 1113, 1116.)
This one material fact presents a genuine issue for trial. Even if Joness deposition testimony that she "thought" Miller told her that she had to return without restrictions were insufficient to raise a triable issue, Jones also testified that Villegas told her that "corporate" had told him that Jones could not return to work except at full duty. Jones says the letter Villegas sent her doctor reflected this policy. At his deposition, Villegas denied that SVS had any such policy or that he ever told Jones that the company required her to come back at full duty only. This factual dispute is for the jury to resolve.
The trial court concluded that SVS was not legally required to keep Joness job open beyond the leave of absence period the CFRA requires. While the CFRA contains no such explicit requirement, cases interpreting FEHA (of which the CFRA is part) and its federal counterpart, the ADA, have held that an extension of an unpaid medical leave may be a reasonable accommodation if it does not impose an undue hardship on the employer. (See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000) 212 F.3d 638, 647 (Garcia-Ayala) [reversing summary judgment for employer that fired employee who remained disabled after her one-year leave period had expired; "a medical leave of absence — [employees] proposed accommodation — is a reasonable accommodation under the [ADA] in some circumstances"]; Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, 1247 (Nunes).) Likewise, under FEHA, "[h]olding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation . . . where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future." (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263, citing Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 (Hanson).)
SVS correctly points out there is no requirement that an employer provide repeated leaves of absence for a disabled employee with a poor prognosis for recovery. However, "a finite leave of absence can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties." (Hanson, supra, 74 Cal.App.4th at p. 226.) Of course, an employer need not hold a disabled employees job open indefinitely, or where the employer would suffer undue hardship from the employees continuing absence. (Garcia-Ayala, supra, 212 F.3d at pp. 648-650; Nunes, supra, 164 F.3d at p. 1247.) The reasonableness of an accommodation — including the "reasonable" length of time for a medical leave — generally is a question of fact for the jury. (Hanson, supra, 74 Cal.App.4th at p. 228, fn. 11; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 953-954 (Prilliman).)
If the jury determines that SVS did not have a "fully healed return to work" policy and that the five months of leave it already had granted to Jones was reasonable, then SVS may well be entitled to judgment in its favor in response to the appropriate motion at that juncture. Given the various statements and certifications from Joness physicians, there appears to be a serious question whether Jones can establish that she was a "qualified individual" — that she was able to do her job even with accommodations. We recognize that "permanently disabled" and "totally disabled" have different meanings in different areas of the law (Prilliman, supra, 53 Cal.App.4th at pp. 962-963; Gelfo, supra, 140 Cal.App.4th at p. 48), and that even employees who claim to be "totally disabled" are not legally barred from asserting claims under FEHA or the ADA. (Cleveland v. Policy Management Systems Corp. (1999) 526 U.S. 795, 797-798, 803.) Nevertheless, it remains Joness burden to prove she was able to do her job, with or without reasonable accommodations. (Green, supra, 42 Cal.4th at p. 262.)
Moreover, while FEHA requires the employer to engage in a good faith interactive process with the employee "in response to a request for reasonable accommodation" (Gov. Code, § 12940, subd. (n)), "it is the employees burden to initiate the process . . . ." (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22.) It does not appear that Jones ever asked for an accommodation (again, she says, because she was told that she could not come back to work except at full capacity). Finally, we note that Jones may be unable to prove damages: Although Miller told Jones that she "had to process" the termination, it is undisputed that she also told her SVS would hold her job open until January and that it would continue to pay for her medical insurance. In short, while SVS technically terminated Jones, the sum and substance of Millers conversation with Jones was that the company would extend her leave until January, when she could return to her same position with no interruption of benefits or loss of seniority. And when Jones filed this lawsuit, SVS again offered her her job back. Jones never even responded to that offer.
III. Implied Contract Claim
Jones maintains that disputed factual issues preclude summary adjudication of her claim for breach of an implied-in-fact contract that her employment could only be terminated for good cause. She is mistaken.
In California, "[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other." (Lab. Code, § 2922.) Thus, employment is presumed to be at will, and an employee who claims the terms of her employment are otherwise has the burden to rebut this presumption. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1386.)
SVSs personnel manual unequivocally states this policy:
"The employment relationship between SVS and its employees is based upon their mutual consent and can be terminated at will by either party with or without cause or advance notice."
At her deposition, Jones testified she was aware of and had acknowledged in writing SVSs "at-will" policy. Indeed, her job duties included the orientation and training of new employees about SVSs personnel policies. Thus, a specific component of Joness job included "know[ing] all of the policies" of SVS. Jones also understood she was obligated to "abide by the Policies and Procedures of SVS." The record contains no evidence that any document altering Joness at-will status ever was signed or contemplated. Nor is there any evidence SVS gave Jones any oral assurance that she could expect continued employment. Jones conceded no one at SVS ever told her that her employment could be terminated only for good cause, and there is no indication this was, in fact, the companys practice. Rather, Jones admitted she held that personal belief and understanding merely as a matter of "common sense, common knowledge."
Throughout her 16-year tenure at SVS, Jones was considered a good employee. She received positive performance reviews and she advanced within the company. But these facts alone are insufficient to rebut the presumption that her employment was and continued to be at will. They are, in the end, no more than the " `natural occurrences of an employee who remains with an employer for a substantial length of time. [Citation.]" (Kovatch v. California Casualty Management Co. (1998) 65 Cal.App.4th 1256, 1276.) As the Supreme Court has explained: "Absent other evidence of the employers intent, longevity, raises and promotions are their own rewards for the employees continuing valued service; they do not, in and of themselves, additionally constitute a contractual guarantee of future employment security." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 341-342.) The trial court properly granted summary judgment on Joness implied contract claim.
The cause of action for breach of an express oral contract is no longer at issue.
DISPOSITION
The order granting summary adjudication of Joness first, second, and third causes of action for disability discrimination, failure to accommodate in violation of FEHA, and violation of the CFRA are reversed. The order granting summary adjudication on the fourth and fifth causes of action for breach of an implied or oral contract is affirmed. The parties shall bear their own costs on appeal.
In light of this disposition, Joness appeal from the trial courts award of sanctions to SVS for her failure to admit in discovery the truth of her doctors written statements about her continued disability is moot. Nothing in this opinion precludes the trial court from again considering a request by SVS for discovery sanctions depending on the outcome of the case on remand.
We concur:
RUBIN, Acting P. J.
FLIER, J.