Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS03695
CANTIL-SAKAUYE, J.
Parvin Patty Olfati appeals a judgment against her awarding $221,452 in attorney fees and costs to defendant State Board of Equalization (BOE) after her complaint against the BOE and three individual employees of the BOE (defendants) was resolved against her on motions for summary judgment, summary adjudication, and demurrer. Olfati claims her notice of appeal, in which she appeals specifically the judgment of fees and costs as well as “all previous and subsequent orders” of the trial court should be liberally construed to allow her to raise issues regarding the trial court’s underlying judgment of dismissal and resolution of the motions for summary judgment, summary adjudication, and demurrer. Defendants move to dismiss the portion of the appeal relating to these latter matters.
We shall liberally construe the notice of appeal, deny defendants’ motion to dismiss, and consider the issues raised by Olfati. Upon such consideration, we shall affirm both the underlying judgment of dismissal and the judgment awarding fees and costs.
FACTUAL BACKGROUND
Olfati is a middle-aged, Iranian female employee of the BOE. She has worked at the Sacramento headquarters of the BOE since 1989. Kayvan Kazeminejad, an Iranian male employee of the BOE in Sacramento, and Olfati were at one point friends. A falling-out occurred.
Olfati claimed Kazeminejad, in December 2002, abruptly moved out of the room she was renting him in a Sacramento residential property she owned. She claimed he failed to pay her the rent he owed. She eventually filed a small claims court action against him.
Olfati complains Kazeminejad stated in the small claims court proceedings that he had received a police report filed against him by Olfati from high level management at the BOE. Olfati claimed she never filed a police report against Kazeminejad.
Kazeminejad, however, claimed a more intimate relationship with Olfati and contended Olfati was harassing him because she was upset over the break up of their domestic relationship. At the end of March 2003, Kazeminejad filed a report of harassment with the Sacramento Police Department. According to Kazeminejad, he was advised by the police to consider filing for a restraining order and when Olfati’s harassment, including incessant telephone calls, did not stop, he did so at the urging of his friends.
A day prior to filing the police report, Kazeminejad also made a complaint to his supervisor at the BOE about Olfati harassing him at work by cussing at him in Persian and slapping him on his head. Kazeminejad’s work supervisor reported Kazeminejad’s complaint to the Equal Employment Opportunity (EEO) office of the BOE, who interviewed Kazeminejad and then met with Olfati. Olfati became very irate and emotional. The EEO office advised Olfati to stay away from Kazeminejad at work and not to call him at work about personal business.
On April 21, 2003, Olfati’s friend, BOE attorney Steve Kamp reported to the chief of the division in which Kazeminejad worked that Kazeminejad was misusing state time by working for an outside contractor during his state working hours. Olfati was the source of Kamp’s information. Kazeminejad complained Olfati was retaliating against him because of his EEO complaint against her. The chief of the division ordered an investigation, which determined Kazeminejad was working for an outside vendor on his own time and with his supervisor’s approval. The chief of the division discussed this matter with defendant Timothy Boyer, who was acting as the BOE’s Interim Director.
On April 24, 2003, Olfati was served by Sacramento police with a copy of Kazeminejad’s temporary restraining order (TRO) issued the previous day. Olfati claimed the order contained numerous false statements about her actions and was obtained by Kazeminejad during his state working hours.
The BOE has an internal security and audit division (ISAD) that conducts investigations and works to secure the safety of the BOE’s employees. The ISAD monitors situations where a BOE employee has obtained a restraining order protecting the employee while at work. When the ISAD received a copy of the TRO involving Kazeminejad and Olfati, an investigator was assigned to monitor the TRO process. An e-mail was sent to BOE managers and supervisors informing them of the TRO. The investigator attended subsequent court proceedings without speaking to either party. When the TRO was subsequently dissolved in July 2003, the investigator informed his supervisors and told Olfati that he had done so. Olfati complained that no e-mail or other written communication was sent to BOE managers, supervisors, and employees informing them of the dissolution of the TRO.
As time passed, Boyer received a number of reports that Olfati was having problems with her supervisors and some of her coworkers who were reporting Olfati would engage in angry outbursts and accuse other staff of “sabotaging” her work and trying to “get rid of her.” He also received a report from one of the attorneys in the BOE’s legal department, defendant John Thiella, of a bizarre interaction with Olfati at a BOE picnic. Thiella claimed Olfati motioned for him to approach her at the picnic, but when he did so, she told him she did not want to talk to him. When Thiella asked Olfati’s friend Kamp what that was all about, Kamp told Thiella he should go and talk to Olfati. Thiella, who had often been the object of profanity used by Olfati, told Kamp he did not think it would do any good as Olfati was mentally ill. Olfati claims Thiella referred to her as a “psychotic bitch” in front of numerous other BOE employees. Thiella denied doing so.
On September 2, 2003, Boyer asked the ISAD to investigate the reports he was receiving.
At about the same time, Olfati began a stress leave of absence. The medical release from Olfati’s physician stated he advised Olfati to rest for a month while she saw a psychiatrist for treatment. Olfati did not go to see a psychiatrist.
On September 17, 2003, Boyer was informed by a manager of Olfati’s division of a conversation the manager had with Olfati in which Olfati had become emotional and made a statement that she “would rather be dead than return to work at the BOE.” When asked if she really wanted to die, Olfati responded “yes.” The manager told Boyer she once had an employee commit suicide after making a similar statement and she was concerned for Olfati’s personal safety. Boyer authorized the manager to contact the ISAD to have them call the police to request a “wellness” check on Olfati. When the police were called, they were told, according to Olfati, that Olfati was “‘acting dangerously’” and “‘strangely.’” The police went to Olfati’s Sacramento residence, but Olfati was in Los Angeles. Olfati claimed the manager knew she was in Los Angeles and that the police wellness check surprised and frightened Olfati’s sister, who shared Olfati’s Sacramento residence.
Meanwhile, the ISAD investigation was progressing. After conducting a number of interviews with Olfati’s coworkers and supervisors, an ISAD report was sent to Boyer in October 2003. The report concluded there were an increasing number of incidents involving Olfati in which she appeared to be emotional and irrational. “A consistent pattern of behavior that can be described as paranoid exists in all the incidents reported . . . . Ms. Olfati has expressed to more than one person that specific individuals or ‘management’ are involved in a conspiracy to discredit her or they are ‘out to get her.’ However, based on the incidents reported . . ., there does not appear to be any rational basis for this opinion.” The report also concluded Olfati’s behavior had become a disruptive factor in the workplace. Staff was concerned for workplace safety when Olfati became emotional. The report expressed concern that there appeared to be a “‘hands-off’” policy towards Olfati that failed to hold her accountable for her actions.
Olfati claimed the investigation was biased, based on false statements by other BOE employees, and conducted without communicating with her.
Boyer asked defendant Brian Branine, an attorney for the BOE, for legal advice regarding Olfati’s situation. Branine advised one option would be to place Olfati on administrative time off (ATO) and send her to a psychiatric fitness for duty examination under Government Code section 19253.5. Boyer authorized staff to place Olfati on ATO and to arrange a psychiatric fitness for duty exam. Olfati’s employee badge and access to the workplace were suspended.
Olfati refused to attend a fitness for duty examination scheduled with a male doctor, claiming she would not see a male doctor. An examination was scheduled with a female doctor, but Olfati twice failed to attend. Branine and Boyer discussed the situation and decided to give Olfati a third chance to attend a fitness for duty examination with the female doctor. Olfati said she was too ill to attend.
Boyer then authorized BOE staff to file a disability retirement application on behalf of Olfati with the Public Employees’ Retirement System (PERS). Olfati, through her attorney, sent PERS the reports of two male doctors who had evaluated her and found she could perform the essential functions of her position. Her attorney argued PERS had no right to send her to an independent psychiatric examiner. In May 2004, Boyer was notified that Olfati had refused to be examined by a PERS psychiatrist and, on that basis, PERS had cancelled the disability retirement application.
Olfati claimed that in the course of these proceedings, the BOE published a series of false statements to medical doctors, officials at the Department of Personnel Administration and PERS. She claimed BOE management and Branine published false statements about her within the BOE. She complained Branine retroactively cancelled her teleworking approval. When the disability retirement application was cancelled by PERS, Olfati had her attorney contact the BOE to request immediate reinstatement with back pay, interest, service and leave credit.
Boyer authorized Branine to contact Olfati’s attorney to state the BOE would be terminating Olfati’s employment for insubordination and her angry outbursts if she did not agree to attend a fitness for duty examination to confirm she was not a threat to herself or others. Olfati agreed to the examination and was found by the doctor mentally fit to perform her duties at the BOE.
Branine thereafter advised Boyer and the BOE staff that Olfati could be placed in a new position, with new supervision, in an area where she would not encounter Kazeminejad, as long as her job classification, status and pay were the same. Olfati returned to work in July 2004 and was assigned to a position in the Special Procedures Section of the BOE, instead of her previous position in the Tax Policy Division. Boyer had Olfati’s new supervisors explain to her the BOE’s expectations for her work productivity and interactions with others. The BOE tried to get Olfati to sign a two-page “‘workplace etiquette’” memorandum, but she refused.
The State Personnel Board issued a settlement order in late 2005/early 2006 directing the BOE to pay Olfati 100 percent of the back pay owed, together with interest, and to restore her leave credits for the period between January 20 and July 1, 2004. The settlement order expressly does not affect any of the claims in this action.
PROCEDURAL BACKGROUND
In September 2004, Olfati filed a civil complaint against the BOE and in October 2004 filed a first amended complaint against the BOE, Boyer, Thiella, and Branine for (1) fraud and deceit, (2) defamation, (3) retaliation in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.), (4) retaliation in violation of the False Claims Act (Gov. Code, § 12650 et seq.), and (5) discrimination and harassment in violation of the FEHA.
The BOE, Boyer, Branine, and Thiella each filed a motion for summary judgment or, in the alternative, summary adjudication. Olfati’s attorney withdrew from the case a few days after the motions were filed. The trial court granted Olfati a continuance of the hearing on the motions and after new counsel substituted into the case to represent Olfati, granted an extension of time for filing opposition. The trial court subsequently granted each of the individual defendants’ motions for summary judgment. The trial court granted the BOE summary adjudication on all causes of action, but declined to grant summary judgment since it granted Olfati leave to amend her complaint to add a cause of action against the BOE for retaliation in violation of Labor Code section 1102.5. The trial court expressly noted the amendment was to add a new legal theory, not new facts.
Olfati filed a second amended complaint alleging a violation of Labor Code section 1102.5, naming as defendants the BOE, Boyer, Thiella and Branine. Defendants filed a demurrer and motion to strike based inter alia on Olfati naming the individual defendants, adding new facts, her failure to exhaust administrative remedies, and statutory immunities. The trial court granted the motion to strike and sustained the demurrer without leave to amend.
Defendants filed a motion for attorney fees and costs pursuant to Code of Civil Procedure section 1038 (allowing defense fees and costs for government tort actions not brought or maintained in good faith and with reasonable cause, hereafter section 1038) and Government Code section 12965, subdivision (b) (allowing in a FEHA action the prevailing party reasonable attorney fees and costs in the discretion of the trial court, hereafter section 12965(b)). The trial court found the award of fees was appropriate under both statutes and granted the BOE attorney fees and costs in the amount of $221,452 to be paid by Olfati alone. A judgment against Olfati for fees and costs was entered.
After the judgment for fees and costs was entered, a “Judgment Sustaining Defendants’ Demurrer to Plaintiff’s Second Amended Complaint and Dismissing Defendants” (capitalization changed) was entered. This judgment reflected the order of the court granting defendants’ demurrer and motion to strike and then entered a judgment of dismissal dismissing all defendants.
DISCUSSION
I.
Scope Of Appeal
Olfati’s notice of appeal in this action states that she appeals “from the Judgment of August 22, 2006 and also appeals from all previous and subsequent orders of this court.” The judgment of August 22, 2006, is the judgment for fees and costs. In her opening brief, Olfati seeks to raise not only issues relating to the trial court’s award of fees and costs, but issues regarding the trial court’s underlying judgment of dismissal and resolution of the motions for summary judgment, summary adjudication, and demurrer.
Defendants have filed a motion to dismiss the latter portion of the appeal. Defendants argue this court lacks jurisdiction to consider the judgment sustaining defendants’ demurrer and dismissing defendants because Olfati’s notice of appeal omits any reference to that judgment. Defendants note that an appeal does not lie from nonappealable orders granting a motion for summary judgment and sustaining a demurrer.
The trial court entered orders granting each of the individual defendants’ motions for summary judgment. Defendants are correct; such orders are not themselves appealable. (Modica v. Merin (1991) 234 Cal.App.3d 1072.) Appeal lies only from the subsequent summary judgment of dismissal entered based on such order. (Ibid.) With respect to the BOE, the trial court granted summary adjudication on all causes of action, but declined to grant summary judgment since it granted Olfati leave to amend her complaint to add a cause of action. The order granting summary adjudication with leave to amend was not an appealable final judgment. (Sullivan v. Delta Air Lines (1997) 15 Cal.4th 288, 307.) Subsequently, the trial court granted defendants’ motion to strike and sustained the demurrer to the second amended complaint without leave to amend. Again, defendants are correct; an order sustaining a demurrer is not appealable. (Code Civ. Proc., § 904.1; Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457.) An appeal can be taken after entry of such an order only after the court enters a judgment of dismissal. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.)
After the entry of these nonappealable orders, the BOE sought attorney fees under section 1038 and section 12965(b). The BOE was required to, and did, file its motion under section 1038 prior to entry of judgment in the underlying action. (§ 1038, subd. (c).) The trial court entered a judgment granting the BOE its attorney fees and costs.
The trial court then entered a “Judgment Sustaining Defendants’ Demurrer to Plaintiff’s Second Amended Complaint and Dismissing Defendants.” Such judgment reflects the trial court’s order sustaining defendants’ demurrer, but it also reflects an unqualified judgment of dismissal dismissing all defendants. Such judgment of dismissal was the final determination of the rights of the parties in the action. (Code Civ. Proc., § 577.)
At the time Olfati filed her notice of appeal there existed both the judgment awarding fees and costs and the judgment dismissing all defendants. Olfati’s notice of appeal expressly appeals only the judgment awarding fees and costs. Olfati claims she was unsure of whether any other judgment had been submitted for signature as “the file [was] rather large and there had been other judgments and orders issued.” She points the finger of blame at defendants, claiming they should have submitted a judgment after the trial court granted their motions for summary judgment and summary adjudication and that they either negligently or intentionally created a lengthy delay between the order sustaining the demurrer and the judgment entered on that order. She claims defendants should have filed an all-encompassing judgment for all the orders entered by the trial court prior to entry of the judgment awarding fees and costs. Olfati’s arguments ignore the fact a final judgment could not have been entered after the trial court sustained defendants’ motion for summary adjudication with leave to amend and that defendants could not have earlier submitted a final judgment for entry after the trial court sustained the individual defendants’ motions for summary judgment or defendants’ subsequent demurrer to the second amended complaint without foreclosing their ability to seek attorney fees pursuant to section 1038. Olfati’s later uncertainty as to what had been filed is simply no excuse.
Nevertheless, “‘notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’” (In re Joshua S. (2007) 41 Cal.4th 261, 272, quoting Luz v. Lopes (1960) 55 Cal.2d 54, 59; Cal. Rules of Court, rule 8.100(a)(2); 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 460, p. 507.) Although Olfati named only the judgment awarding fees and costs in her notice of appeal, she also stated she appealed “from all previous and subsequent orders of this court.” This language did not unambiguously demonstrate an intent to appeal only from the judgment awarding fees. (Cf. Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47 [“The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders”].) It is reasonably clear from such language that Olfati intended to include in her appeal the rulings on defendants’ motions for summary judgment and summary adjudication and their demurrer.
Further undesignated rule references are to the California Rules of Court. We note the California Rules of Court were amended and renumbered effective January 1, 2007. Olfati’s briefs were filed in this case in December 2007 and July 2008, well after the effective date of the new rules. Despite this fact, Olfati continues in her briefs to improperly refer to former versions of the rules.
Nor does it appear defendants were misled or prejudiced by Olfati’s ambiguous notice of appeal. (D’Avola v. Andersen (1996) 47 Cal.App.4th 358, 362-363.) Olfati indicated in her civil case information statement that her appeal was not only from the judgment awarding fees, but from the judgments of dismissal after an order sustaining a demurrer and after an order granting a summary judgment motion. She attached to her statement copies of the trial court’s orders on defendants’ various motions and demurrer. Olfati’s designation of the clerk’s transcript on appeal included the papers filed in connection with defendants’ motions and demurrer. Defendants’ brief on appeal responds to Olfati’s claims regarding the underlying orders of the trial court.
We shall liberally construe the notice of appeal to include the final judgment of dismissal. Defendants’ motion to dismiss is denied. We turn to the merits of Olfati’s appeal.
II.
Olfati Has Not Shown An Abuse Of Discretion In The Trial Court’s Denial Of Her Request For A Further Continuance On Defendants’ Motion For Summary Judgment
The trial court granted Olfati a 30-day continuance of the hearing on defendants’ motions for summary judgment. After new counsel substituted into the case to represent Olfati, the trial court granted an extension of time for Olfati to file her opposition to the motions. In her points and authorities filed in opposition, Olfati contended a continuance was mandatory under Code of Civil Procedure section 437c, subdivision (h) (section 437c, subdivision (h)) to permit time for further discovery.
Section 437c, subdivision (h) provides, in relevant part: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist, but cannot, for reasons stated, then be presented, the court shall . . . order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” (Italics added.)
Olfati did not submit an affidavit supporting her request for a continuance, but argued a continuance was necessary in order for her to take the depositions of Boyer, Thiella, and Branine. She outlined a number of areas of inquiry for such depositions. Olfati also noted she was waiting to receive defendants’ response to her request for admission of the authentication of the documents attached to her opposition to the motion for summary judgment.
The trial court denied Olfati’s request for continuance. It found Olfati had failed to comply with the statutory requirement of providing a declaration under oath supporting the request. Thus, a continuance was not mandatory. Consistent with Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716, the trial court proceeded, in the exercise of its discretion, to consider whether Olfati had nonetheless established good cause for a continuance. The trial court stated: “Here, the Court finds no sufficient excuse for [Olfati’s] failure to depose the named defendants in the months between the initiation of this action on Sept. 14, 2004 and the hearing on this motion shortly before trial. The court notes that plaintiff was in propria persona status only two months out of the 18 months that the case was pending. If plaintiff’s prior attorney failed to properly prepare the case by failing to take the depositions of the defendants, such failure to act does not create a basis to continue the motion to take the deposition at this late date. Any remedy for such failure is more properly asserted against the former attorney rather than serve as a basis to further continue the hearing.”
“[I]n the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion. [Citation.]” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) Olfati has the burden to show such an abuse of discretion. (Forthman v. Boyer (2002) 97 Cal.App.4th 977, 984-985.) She has not met her burden.
Olfati complains the trial court ignored the fact that her prior counsel had abandoned her immediately after defendants’ motion for summary judgment was filed and that her present counsel had just recently substituted into this complex and complicated case. Olfati then claims the trial court erred in denying her a continuance because her request provided “adequate reasons and arguments to apprise the court of the information to rule in favor of [Olfati’s] request.”
With respect to the question of whether the trial court improperly ignored her situation with legal counsel, we first note Olfati’s request for continuance differs from her present claim. That is, in her request she mentioned her prior counsel’s abrupt withdrawal from the case after the filing of defendants’ motions for summary judgment. She then claimed, oddly, she had not yet been able to retain a new attorney and needed a continuance to do so (the opposition containing such statement and request was filed by her current counsel who stated he was “Attorney for Plaintiff” on the face page of such opposition). Setting aside the apparent contradictions in Olfati’s papers, what is clear is that Olfati did not make the same argument in the trial court that she now asserts it ignored.
Nevertheless, it is also obvious the trial court was well aware of the situation involving Olfati’s legal representation since it referenced in its ruling both Olfati’s representation by her prior attorney and Olfati’s short period of pro per status. Olfati was represented by new counsel at the hearing on defendants’ motions. After the hearing, the trial court took the matter under submission and later confirmed its tentative ruling, finding the critical point to be Olfati’s unexplained delay in deposing the named individual defendants in the months before her prior attorney withdrew from the case. The record does not support Olfati’s claim that the trial court ignored her situation with counsel.
Olfati has provided no reasoned argument, with any supporting authority, that the trial court could not deny her continuance on the basis of her prior attorney’s lack of diligence in pursuing obviously relevant discovery for the almost 15 months the case was pending before the filing of defendants’ motions. We need not consider any such potential claim (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384), although we note in any event, “the majority of courts hold that lack of diligence may be a ground for denying a request for a continuance.” (Cooksey v. Alexakis, supra, 123 Cal.App.4th 246, 257.)
As to the “adequate reasons and arguments” for continuance that she presented below, Olfati provides no further explanation of those reasons or arguments or why they met the requirements of section 437c, subdivision (h). Olfati’s perfunctory assertion does not require our further consideration. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
III.
Summary Judgment
A. General Principles Regarding Summary Judgment/Adjudication
A defendant may move for summary judgment contending the action has no merit. (Code Civ. Proc., § 437c, subd. (a).) A defendant may move for summary adjudication contending one or more causes of action within an action have no merit. (Id., subd. (f)(1).) A motion for summary adjudication may be made as an alternative to a motion for summary judgment and proceeds in all procedural respects as a motion for summary judgment. (Id., subd. (f)(2); Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.)
A motion for summary judgment (summary adjudication) will be granted if the submitted papers show that “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant meets its burden of showing that a cause of action has no merit if the defendant shows plaintiff cannot establish one or more elements of the cause of action or cannot refute an affirmative defense established by the defendant. (Id., subd. (p)(2).) Once the defendant has met its burden of production, the burden shifts to the plaintiff to show a triable issue of material fact. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 464.)
Our review is de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “[W]e examine the facts presented to the trial court and determine their effect as a matter of law.” (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 464.) Even on review of a summary judgment, however, “[t]he appellant has the burden of showing error occurred.” (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) “[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed. [Citations.]” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
B. Statutory Immunities And Privileges Bar Olfati’s Defamation Cause Of Action
Olfati challenges the trial court’s ruling that statutory immunities and privileges barred her defamation cause of action. To place her arguments in context, we summarize defendants’ positions.
Thiella contended the only defamatory statement he was alleged to have made - that Olfati was a “psychotic bitch” - was not an actionable statement of fact, but of opinion and hyperbole.
Boyer and Branine contended they were statutorily immune for all their alleged actions pursuant to Government Code section 820.2 (section 820.2) because their actions were part of their exercise of discretion in the scope of their employment. Boyer and Branine also asserted immunity under Government Code section 821.6 (section 821.6) for their actions instituting or prosecuting any judicial or administrative proceeding within the scope of their employment. Boyer and Branine contended the absolute and conditional privileges of Civil Code section 47, subdivisions (a), (b), and (c) (section 47(a), section 47(b), section 47(c)) barred Olfati’s defamation claim.
The BOE argued it was statutorily immune under Government Code section 815.2, subdivision (b) (section 815.2(b)), because Branine and Boyer were immune under section 820.2 and section 821.6. The BOE also asserted immunity under Government Code section 818.8 (section 818.8). The BOE asserted section 47(a), section 47(b), and section 47(c) privileges. The BOE denied Olfati had shown any false and unprivileged statement of fact.
The trial court agreed with defendants’ arguments. We discuss the issues in a slightly different order.
1. Section 47(a) Privilege
Section 47(a) states a privileged publication is one made “in the proper discharge of an official duty.”
Accepting defendants’ arguments, the trial court concluded this privilege applied to this case because Olfati alleged “defendants published false official documents, claims, complaints and police reports against her” and alleged both Boyer and Branine were acting in the course and scope of their agency at all times. The trial court found the cases relied upon by Olfati, Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406 and H & M Associates v. City of El Centro (1980) 109 Cal.App.3d 399, to be factually distinguishable because in those cases the governmental officer’s communication with the press was not a “discretionary” act made in the discharge of his official duty, but here there was no publication “beyond those with a need to know.” Olfati claims the trial court’s ruling was in error. Naturally, defendants disagree.
“Enacted in 1872, [section 47(a)] ‘confers privileged status upon any statement made by a public official in the course of discharging his [or her] official duties.’ (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 500 [153 Cal.Rptr. 499] (Royer).) As the court summarized in Royer: ‘[T]he policy of protecting the free exercise of governmental decision-making mandates that the privilege of [] section 47, subdivision 1 [(now subd. (a))] must be granted not only to “high-level” state executive officers, but also to all state and local officials who engage in the policy-making process. We therefore hold that the privilege . . . protects any statement by a public official, so long as it is made (a) while exercising policy-making functions, and (b) within the scope of his [or her] official duties.’ (Royer, at p. 501, citation omitted.)” (Maranatha Corrections, LLC v. Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1087.)
Thus, the section 47(a) privilege does not apply to all communications made as part of official government acts. The privilege requires both a qualifying executive officer (one who engages in the policy-making process) and that “the communication ‘was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively.’” (Copp v. Paxton (1996) 45 Cal.App.4th 829, 843-844, quoting Barr v. Matteo (1959) 360 U.S. 564, 575 [3 L.Ed.2d 1434, 1443].) To be engaged in the exercise of such discretion “the official must reach a basic policy decision, as distinct from an operational decision, after balancing risks and advantages. [Citation.]” (Neary v. Regents of Univ. of Cal. (1986) 185 Cal.App.3d 1136, 1142; see Sanborn v. Chronicle Pub. Co., supra, 18 Cal.3d at p. 413; H & M Associates v. City of El Centro, supra, 109 Cal.App.3d at pp. 407-408.)
Part of the difficulty in applying this law to Olfati’s defamation claim is the conclusory and indefinite manner in which Olfati alleged defamation by the defendants. With the exception of the “psychotic bitch” statement purportedly made by Thiella, Olfati mostly alleged amorphous and often unspecified false and defamatory statements made in various incidents by various BOE employees. It is not clear whether she claimed Branine and Boyer themselves made the defamatory statements and/or whether she alleged they were, or more generally the BOE was, responsible for republication of other employees’ defamatory statements. Defendants did not, however, demur to this cause of action on the ground of uncertainty. (Code Civ. Proc., § 430.10, subd. (f).) Defendants asserted by motion for summary judgment/adjudication, inter alia, the absolute privilege of section 47(a).
Although Olfati incorporated by reference all her preliminary factual allegations, in her second cause of action for defamation Olfati specifically alleged only that defendants published defamatory statements orally and in writing when employees of the BOE filed the EEO harassment complaint on behalf of Kazeminejad, delivered to Kazeminejad a forged police report purportedly filed by Olfati, orchestrated and assisted Kazeminejad in filing for the TRO, circulated an e-mail to BOE officials and managers regarding the issuance of the TRO against Olfati, attended the hearings on Kazeminejad’s application for a restraining order, failed to later clarify the status of the TRO, conducted a subsequent sham investigation of Olfati, and used the results as one basis to justify their order that Olfati submit to a psychological fitness for duty exam. The only specific statement directly alleged by Olfati to be defamatory was Thiella’s calling her a “psychotic bitch.”
We are not persuaded defendants established such privilege. To show section 47(a) was applicable, defendants needed to show more than Olfati’s defamation cause of action was based on “official documents, claims, complaints and police reports.” To prevail on summary judgment/adjudication, defendants needed to establish each of the alleged defamatory communications were made by Boyer and Branine as qualifying executive officers of the BOE in the exercise of their necessary policy discretion as the case law requires. However, even if defendants could not prevail on their claim of privilege under section 47(a), the grant of summary judgment/adjudication was appropriate as the alleged defamatory communications were patently privileged under both section 47(b) and section 47(c).
2. Section 47(b) Privilege
“Section 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made ‘[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],’ with certain statutory exceptions that do not apply to the present case. The privilege established by this subdivision often is referred to as an ‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious prosecution.” (Hagberg v. Cal. Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg); see Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216 (Silberg).) The privilege applies to any communication made in the statutorily identified kinds of proceedings by a participant to achieve the object of the proceeding and that has some connection or logical relation to the proceedings. (Silberg, supra, at p. 212; Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 478.) Section 47(b) is given broad application in furtherance of the public policy purposes it is designed to serve. (Silberg, supra, at p. 211.)
Olfati claims section 47(b) does not apply to her defamation cause of action. She quotes a portion of her points and authorities submitted in opposition in the trial court in which she purported to summarize the false statements made, but which failed to cite to any evidence supporting her claims. She provides no references to the record now to support her claims. She also quotes the argument portion of her points and authorities submitted in opposition in the trial court in which she argued the BOE investigations, fitness for duty medical examinations and disability retirement applications were not “official proceedings” because they were not final proceedings reviewable by writ of mandate. Then, Olfati repeats her opposition cite to a portion of a case considering whether certain statements made outside the government agency context are covered by the section 47(b) privilege as quasi-judicial proceedings reviewable by mandate. (Cuenca v. Safeway San Francisco Employees Federal Credit Union (1986) 180 Cal.App.3d 985, 994, fn. 2 (Cuenca).)
Not only is it inappropriate to use points and authorities submitted to the trial court as an appellate brief (this merely reiterates the appellant’s arguments to the trial court without establishing the manner in which the trial court erred in ruling against the appellant) and inappropriate to fail to provide citations to the record for factual claims (rule 8.204(a)(1)(C)), Olfati’s argument has missed the point.
Section 47(b) does not just include proceedings authorized by law and reviewable by writ of mandate. (§ 47(b), item (4).) It also covers “official” proceedings authorized by law. (§ 47(b), item (3).) This portion of section 47(b) refers to proceedings by governmental agencies. (Hackethal v. Weissbein (1979) 24 Cal.3d 55, 61.) “The term ‘official proceeding’ extends to investigatory activities by public agencies. [Citation.] The privilege is not restricted to statements made once a proceeding has been commenced, but may apply to statements made in advance. ‘“The ‘official proceeding’ privilege has been interpreted broadly to protect communication to or from governmental officials which may precede the initiation of formal proceedings.”’ [Citations.]” (Garamendi v. Golden Eagle Ins. Co., supra, 128 Cal.App.4th at p. 478; accord Hagberg, supra, 32 Cal.4th 350, 362-370.)
Olfati’s claims of defamatory statements made in the course of an allegedly false EEO complaint to the BOE, a subsequent BOE investigation for purposes of possible civil service employee discipline, a requirement that Olfati submit to a fitness for duty examination authorized by Government Code section 19253.5, and the initiation of official disability retirement proceedings with PERS are all privileged “official” proceedings authorized by law.
We also note the call to police for a wellness check was an investigatory step prior to either official proceedings by the police under Welfare and Institutions Code section 5150 or potential judicial proceedings under Welfare and Institutions Code section 5200. (§ 47(b), items (2) & (3).) (Rubin v. Green (1993) 4 Cal.4th 1187, 1194-1195 [prelitigation communications covered by litigation privilege].)
The absolute privilege of section 47(b) barred nearly all of Olfati’s defamation claims.
3. Section 47(c) Privilege
It is also clear the qualified privilege of section 47(c) applies to Olfati’s defamation claims.
Section 47(c) provides a privilege for a publication made “[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” Workplace communications regarding the conduct of an employee fall squarely within this privilege. (Cuenca, supra, 180 Cal.App.3d at p. 995; Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846-847.)
Defendants’ communications were privileged unless Olfati met her burden to show malice. (Taus v. Loftus (2007) 40 Cal.4th 683, 721; Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202.) “‘“The malice necessary to defeat a qualified privilege is ‘actual malice’ which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights [citations].”’” (Taus v. Loftus, supra, at pp. 721-722, quoting Sanborn v. Chronicle Pub. Co., supra, 18 Cal.3d at p. 413.) It is only when the defendant’s conduct amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a willful disregard for or avoidance of accuracy, that malice is shown. (Roemer v. Retail Credit Co. (1970) 3 Cal.App.3d 368, 370-371; Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 9.) Malice may not be inferred from the communication alone. (Civ. Code, § 48.)
Failing to recognize these principles, Olfati argues the defendants only offered “self-serving declarations” to establish their statements were not made with malice, that the defendants knew or should have known their statements were untrue and unfounded, and that calling someone a psychotic bitch “is meant to hurt.” Olfati has not come close to raising a triable issue regarding malice.
Olfati also references a statement calling her “a spaghetti strapped bimbo[.]” We have no idea who, if anyone, made such a statement as this comment appears nowhere else in the briefs or materials referenced in the briefs and Olfati provides no citation to the record for her claim.
4. Thiella’s Statement Regarding Olfati
The only alleged defamation by a BOE employee arguably not covered by the section 47(b) or section 47(c) privileges is Thiella’s purported statement at a BOE annual picnic calling Olfati a “psychotic bitch.”
Statements of opinion, rather than fact, are not actionable as defamation. (Campanelli v. Regents of the Univ. of California (1996) 44 Cal.App.4th 572, 578.) Buried in Olfati’s discussion of section 47(c) is an assertion that “viewed in the context of all the facts,” Thiella’s statement “is a statement of fact, not an opinion or ‘hyperbole[.]’” According to Olfati, “[t]his is a question of fact to be determined by the trier of fact, not the court.” Further explanation of Olfati’s argument appears in her statement of “facts” in connection with attorney fees. Olfati there argues Thiella’s statement was a statement of fact because it was not “hyperbole” as defined by the American Heritage Dictionary to be “an exaggeration or extravagant statement used as a figure of speech,” but an “articulate, discriminating appraisal[] of Thiella’s judgement [sic] of [Olfati].”
We note it is inappropriate to place argument in a statement of facts. We also note Olfati does not actually cite to any evidentiary portion of the record for her statement of facts, but simply quotes her points and authorities submitted in opposition to defendants’ motion for attorney fees. It is improper to cite to counsel’s arguments in the trial court to support a factual statement on appeal. (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578; Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 153-154.) Argument is not evidence. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1319.)
Appellate briefs must state each point raised under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B).) If not, the arguments need not be considered. (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345-1346.) A logical corollary is that all argument regarding an issue should be located under its separate heading, not scattered throughout the brief. In any event, Thiella’s statement, assuming it was made, was clearly, as a matter of law, a statement of opinion, not fact. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 [issue is question of law]; Good Government Group of Seal Beach, Inc. v. Superior Court of Los Angeles County (1978) 22 Cal.3d 672, 682 (Good Government Group) [if statement unambiguously constitutes either fact or opinion, issue is question of law]; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 602 [issue is question of law.) Thiella was not making a factual diagnosis of Olfati’s actual mental illness and no reasonable person hearing the statement would have understood otherwise. His statement can only be described as an epithet expressing Thiella’s opinion and judgment of Olfati’s behavior and character. (Good Government Group, supra, at p. 681 [characterizations of conduct are statements of opinion].) It was not actionable defamation.
5. Section 820.2 Immunity
Section 820.2 provides immunity for a public employee’s conduct as follows: “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
However, “not all acts requiring a public employee to choose among alternatives entail the use of ‘discretion’ within the meaning of section 820.2.” (Barner v. Leeds (2000) 24 Cal.4th 676, 684-685.) “Rather, immunity should attach to those decisions which involve ‘basic policy’ choices which, because they constitute an exercise of governmental administration, should ‘“remain beyond the range of judicial inquiry.”’ [Citations.]” (Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 896.) While it is well settled that immunity for discretionary acts extends “to fundamental decisions within the executive or administrative authority of the agency or official” (Caldwell v. Montoya (1995) 10 Cal.4th 972, 983, fn. 5 (Caldwell)), “there is no basis for immunizing lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated. [Citation.] Moreover, . . . immunity applies only to deliberate and considered policy decisions, in which a ‘[conscious] balancing [of] risks and advantages . . . took place. The fact that an employee normally engages in “discretionary activity” is irrelevant if, in a given case, the employee did not render a considered decision. [Citations].’” (Id. at p. 981, quoting Johnson v. State of California (1968) 69 Cal.2d 782, 795-796 & fn. 8.)
In this case, it is apparent that various reports concerning Olfati and her interactions with other employees (including Kazeminejad), supervisors and managers, traveled up the chain of authority in the BOE, eventually being reported to Boyer as the acting Interim Director. After receiving a number of reports, Boyer in his capacity as Interim Director asked the ISAD to investigate the complaints he was receiving, triggering the investigation that Olfati complains was so one-sided and biased. Boyer later authorized a manager to contact the ISAD to have them call the police to request the “wellness” check of which Olfati complains. Boyer consulted with Branine, seeking legal advice regarding the BOE’s options for responding to Olfati’s situation. Based on Branine’s legal advice, Boyer authorized staff to place Olfati on ATO and to arrange a psychiatric fitness for duty exam. Subsequently, Boyer authorized BOE staff to file a disability retirement application on behalf of Olfati with PERS. When PERS cancelled that application, Boyer authorized Branine to contact Olfati’s attorney to state the BOE would be terminating Olfati’s employment if she did not agree to attend a fitness for duty examination. After receiving the results of such exam, Branine advised Boyer regarding Olfati’s placement when she returned to work. Boyer had Olfati’s new supervisors explain to her the BOE’s expectations for her work productivity and interactions with others.
These decisions by Boyer, advised in part by Branine, involved basic policy choices regarding sensitive personnel issues that had been taken up for resolution to top level management. Branine’s legal advice and Boyer’s decisions required the exercise of analysis and judgment as to what was a just and appropriate solution to a difficult situation affecting the BOE workplace. Under the circumstances, Boyer’s and Branine’s considered exercise of discretion entitled them to immunity under section 820.2. (Caldwell, supra, 10 Cal.4th at pp. 979-984; Hardy v. Vial (1957) 48 Cal.2d 577, 582-583; Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1438.)
In contrast to our earlier discussion of section 47(a), which focused on applicability of the section 47(a) privilege to each alleged defamatory publication, the application of section 820.2 immunity here focuses on the liability of Boyer and Branine, and through them the BOE, for their acts in the broader creation of the situations in which the alleged defamatory statements were then made. When viewed with such focus, section 820.2 applies.
6. Section 821.6 Immunity
Government Code section 821.6 states that “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
“California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits.” (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1048.) Thus, section 821.6 has been found to cover not only the act of filing or prosecuting a judicial or administrative complaint, but investigations preliminary to such formal proceedings, even if it is later decided not to pursue the formal action. (Richardson-Tunnell v. Schools Insurance Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1062; Gillan v. City of San Marino, supra, at p. 1048; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1293.) Public employment investigations for the purpose of possible disciplinary proceedings fall within this coverage. (Kemmerer v. County of Fresno, supra, 200 Cal.App.3d 1426, 1438.)
The actions of Boyer and Branine come within the scope of this immunity as virtually all of their decisions were within the context of actual or contemplated judicial or administrative proceedings.
7. Section 815.2(b) Immunity
Section 815.2(b) provides a public entity with immunity where its employees are immune from liability. To the extent Boyer and Branine were statutorily immune for any injury to Olfati, the BOE was immune from liability.
Section 815.2(b) states: “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
8. Section 818.8 Immunity
Section 818.8 provides: “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” The immunity of a public entity under section 818.8 is absolute. (Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 43.)
Although in the trial court Olfati contested defendants’ other claims of statutory immunity, it does not appear she opposed BOE’s claim of immunity under section 818.8. Nevertheless, on appeal Olfati now seems to assert (1) “immunity did not apply because defendants were seeking dismissal based on jurisdictional grounds[]” and (2) “[section] 818.8 only applies to instances related [to] commercial and financial contexts.”
Olfati claims she made two arguments regarding section 818.8 to the trial court, but does not include a record citation to such arguments. We have reviewed her opposition filed with the trial court and find no such arguments, but defendants, who should know what Olfati argued in the trial court, do not argue Olfati has forfeited the issue.
Olfati provides no explanation of her first claim. We do not consider arguments not supported by legal analysis or authority. (In re S.C. (2006) 138 Cal.App.4th 396, 408; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
With respect to her second point, Olfati provides us with several pages of quotation from two cases, Burden v. County of Santa Clara (2000) 81 Cal.App.4th 244 and Tokeshi v. State of California (1990) 217 Cal.App.3d 999, a recitation of the legal principle that section 818.8 applies where governmental misrepresentations interfere with either a commercial or a financial interest (Johnson v. State of California (1968) 69 Cal.2d 782, 800; Lundeen Coatings Corp. v. Dep’t of Water & Power (1991) 232 Cal.App.3d 816, 832) and a statement that “[i]t is clear [section] 818.8 does not apply to [Olfati’s] defamation cause of action.”
Olfati does not explain why her cause of action for alleged false statements by employees of the BOE made to other BOE employees and/or various government agencies relating to her workplace and employment issues does not involve a sufficient financial interest to trigger the immunity of section 818.8. We conclude they do. (Burden v. County of Santa Clara, supra, 81 Cal.App.4th at pp. 251-252 [misrepresentation claims regarding recruitment and hiring as an employee of the county involved sufficient financial interest to trigger section 818.8].) This case involves neither child placement (Johnson v. State of California, supra, 69 Cal.2d 782, 800) nor misrepresentations in the context of the social service area (Michael J. v. Los Angeles County Dep’t of Adoptions (1988) 201 Cal.App.3d 859, 872), which have been found to be outside the scope of section 818.8. Rather, the alleged defamation injured Olfati in her ability to perform, compete, promote, transfer and retain her employment, a primarily financial interest. Olfati’s first amended complaint recognizes this in its allegation that defendants’ defamation caused her “past, present and future loss of income[.]”
9. Summary Adjudication Of Defamation Cause of Action
To summarize, Thiella’s purported comment that Olfati was a “psychotic bitch” was not actionable defamation. All of Olfati’s other allegations of defamation were barred by multiple privileges and immunities. The trial court properly granted summary adjudication of this cause of action.
C. Olfati’s Fourth Cause Of Action For Retaliation In Violation of Government Code Section 12653
Under a subheading that states “the court should have denied summary adjudication as to the fourth cause of action” (capitalization omitted), Olfati recites the trial court’s tentative ruling and then its final ruling regarding her fourth cause of action for retaliation in violation of Government Code section 12653 (section 12653). Her entire argument follows: “Plaintiff incorporates all of the previous arguments submitted above to Issue (5) regarding her 4th cause of action. The trial court committed error with regard to this cause of action.”
In referring to “all” of the previous arguments submitted “above,” Olfati may be referring to her arguments just made under subheadings for issues relating to the trial court’s grant of summary adjudication for her cause of action for defamation. We have addressed those issues and rejected Olfati’s claims. On the other hand, Olfati’s reference to “Issue (5)” appears to refer to the numbering system used by the trial court in its ruling on defendant BOE’s motion for summary judgment/adjudication and may be directing us to the arguments she made in the trial court. We are left to guess. We will not do so. It is not our role to construct possible issues, which we can then answer. It is up to the appellant to clearly raise the issues on appeal and support her position with reasoned arguments, including citations to applicable legal authority and facts in the record on appeal to support the claim of error. When an appellant fails to do so, we give the point no further consideration or discussion. (People v. Stanley (1995) 10 Cal.4th 764, 793; In re S.C., supra, 138 Cal.App.4th at p. 408; Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
IV.
The Demurrer To Olfati’s Second Amended Complaint
A. Standard of Review
When a trial court enters a judgment of dismissal after sustaining a demurrer without leave to amend, “the only question before us is whether plaintiff can state a cause of action. In reviewing the complaint to answer that question, we treat the demurrer as admitting the complaint’s well-pleaded allegations of material fact, but not its contentions, deductions or conclusions of law.” (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 924.)
B. Olfati’s Second Amended Complaint
The trial court granted the BOE summary adjudication on all causes of action in the first amended complaint, but granted Olfati leave to amend her complaint to add a cause of action against the BOE for retaliation in violation of Labor Code section 1102.5 (section 1102.5).
Section 1102.5 provides, in relevant part, that “[a]n employer may not retaliate against an employee for disclosing information to a government . . . agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (§ 1102.5, subd. (b).)
Olfati filed a second amended complaint alleging a violation of section 1102.5, naming as defendants the BOE, Boyer, Thiella and Branine. Defendants filed a demurrer and motion to strike based inter alia on Olfati naming the individual defendants when leave had not been granted as to them, adding new facts contrary to the express order of the trial court, her failure to exhaust administrative remedies, and statutory immunities. With respect to statutory immunities, the BOE claimed immunity under section 818.8 and, through section 815.2(b), the immunities of Boyer and Branine under section 820.2 and 821.6. The trial court granted the motion to strike and sustained the demurrer without leave to amend on the alternate grounds that the action was barred by section 818.8 and Olfati had failed to exhaust her administrative remedies.
Olfati claims the immunity of section 818.8 does not apply to her claim of section 1102.5 violations because section 818.8 is reserved for commercial and financial interests. Her argument is a cut and paste of the earlier section in her brief that argued this position with respect to her defamation cause of action, with no editing to tailor the claim to her section 1102.5 cause of action. Olfati then concludes the trial court did not understand the difference between a commercial or financial interest and retaliation in violation of section 1102.5 in an employment setting.
As Olfati’s argument simply reiterates her earlier claim, our earlier discussion and rejection of that claim (Part III, B., § 7, ante), suffices to reject the claim here.
In her reply brief, Olfati challenges defendants’ passing assertion in their respondents’ brief that Olfati, through her counsel, conceded during the trial court hearing on the demurrer that the gravamen of Olfati’s second amended complaint was misrepresentations by the defendants to her and about her, bringing it within the scope of section 818.8. Olfati claims, without explanation, the statements she alleged in her second amended complaint “are not of the kind addressed in [section] 818.8.” Having reviewed the reporter’s transcript of the hearing, we agree Olfati made the concession argued by defendants, but even if she did not, Olfati is trying to raise a new issue for the first time in her reply brief and we decline to address it. Not only is it untimely (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8), but Olfati has failed to provide any meaningful argument and authorities to support it. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
Having rejected Olfati’s claim, we conclude she has not shown error in the trial court’s sustaining of the BOE’s demurrer to her Second Amended Complaint without leave to amend on the ground of section 818.8 immunity. We need not reach the trial court’s alternate ground of failure to exhaust administrative remedies.
V.
The Award Of Attorney Fees Against Olfati
The trial court determined Olfati’s action “was ‘meritless[,]’ groundless and without foundation, as that term is used in assessing lawsuits based on alleged violation of laws administered by DFEH [Department of Fair Employment & Housing].” Elsewhere, the court specifically stated Olfati’s FEHA claims and section 12653 whistleblower retaliation claim “were unreasonable, frivolous, meritless or vexatious.” The trial court found Olfati’s claims of fraud and defamation were not brought or maintained in good faith and with reasonable cause. “As to the Labor Code section 1102.5 retaliation alleged in the Second Amended Complaint on the same facts, [Olfati] had no reasonable basis to make the allegations against the individually named defendants, as to whom summary judgment had already been granted. Although leave of court was granted to plead against the BOE, counsel for the defendants was required to demur on behalf of each named defendants, [sic] thus the Court finds that the attorneys’ fees actually incurred are reasonable.” The trial court ordered Olfati, alone, to pay the BOE $221,452 in attorney fees and costs under both section 12965(b) and section 1038. Judgment was entered against Olfati and in favor of the BOE to this effect. We reject Olfati’s challenge to the award and ensuing judgment.
We could do so on the simple basis that Olfati has forfeited the issue by her failure to support her contentions with citations to the record. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th 974, 979.) If the award of attorney fees had been imposed on Olfati and her counsel, we would be so inclined, since then the consequences of counsel’s violations of the appellate rules would also fall on counsel. Here, however, the trial court ordered the fees payable by Olfati alone. In fairness to her, we will consider the merits.
“Attorney fees are allowable as costs to a prevailing party when authorized by statute. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10)(B).) Government Code section 12965 authorizes an award of attorney fees and costs to the prevailing party in any action brought under FEHA. Section 12965[(b)] provides, in pertinent part, ‘In actions brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs except where such action is filed by a public agency or a public official, acting in an official capacity.’ A trial court’s award of attorney fees and costs under this section is subject to an abuse of discretion standard. [Citation.]” (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921 (Bond).)
An award of fees to a defendant is appropriate under section 12965(b) when the action brought is found to be “unreasonable, frivolous, meritless or vexatious.” (Bond, supra, 50 Cal.App.4th at pp. 921-922; see Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.) “Meritless” is defined as “groundless or without foundation, rather than simply as the fact that the plaintiff ultimately lost.” (Bond, supra, at p. 922.) “‘[V]exatious’ does not imply that plaintiff’s subjective bad faith is a necessary prerequisite to an award of attorney fees to defendant” (ibid), but “‘if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense.’” (Id. at p. 925, quoting Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 422 [54 L.Ed.2d 648, 657], italics omitted.)
The trial court did not abuse its discretion here.
In her first amended complaint, Olfati alleged as her third cause of action a claim of retaliation in violation of FEHA (§ 12940 et seq.) based on her “protected activity by reporting improprieties by BOE employees and by a BOE contract-vendor to BOE management.” She did not allege any purported retaliation based on a FEHA protected status (race, religious creed, national origin, sex, age, etc.). (§ 12940.) The BOE sought summary adjudication on Olfati’s third cause of action based on her inability to show she engaged in any FEHA protected activity and her inability to show a causal connection between protected activity and any alleged adverse action taken against her. In her opposition, Olfati did not address the BOE’s claims, but asserted she had misnamed the cause of action and requested leave to amend to state a claim under section 1102.5. The trial court granted summary adjudication of the third cause of action in favor of the BOE, but granted Olfati leave to amend to state her claim against the BOE under section 1102.5. The trial court limited Olfati to amending her legal theory and did not grant her leave to add new facts. Instead of filing a second amended complaint alleging a section 1102.5 claim against the BOE alone on the facts previously pled, Olfati named the individual defendants again and added new facts. Defendants successfully moved to strike.
Olfati’s fifth cause of action in her first amended complaint was a claim for discrimination and harassment in violation of FEHA. Olfati admitted, however, in her response to the BOE’s motion for summary adjudication that it was undisputed the BOE did not discriminate against her because she was female or over 40 years of age; she was not a religious person nor did she practice any religion; she is not and never has been disabled; and no one discriminated or harassed her on the basis of her religion or being Iranian. The trial court, noting these admissions and the evidence that Olfati was not performing her work duties in a satisfactory manner, granted the BOE’s motion for summary adjudication of the fifth cause of action.
It is clear from these rulings that Olfati from the beginning had no factual basis for an action under FEHA. Her attorney could easily have determined from Olfati that this was the case. Indeed, Olfati’s FEHA retaliation allegations did not state a claim under that statute on their face. Olfati’s FEHA claims were entirely groundless from the start. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1126.) Yet, the BOE was required to pursue discovery to uncover Olfati’s lack of factual basis for her complaint and then required to expend time and effort to bring its motion for summary judgment/adjudication to dispose of her FEHA claims.
On appeal, Olfati claims, however, the award of fees pursuant to section 12965(b) is inappropriate under Hon v. Marshall (1997) 53 Cal.App.4th 470 (Hon). In Hon, the plaintiff’s FEHA action was barred by her failure to exhaust her administrative remedies. (Id. at p. 474.) The appellate court reversed an award of section 12965(b) attorney fees to the defendants, concluding they were not prevailing parties for purposes of section 12965(b) when they were granted summary judgment as a result of the “jurisdictional” defect of exhaustion of administrative remedies; “a determination which required no consideration of the merits of appellant’s discrimination and harassment claims.” (Hon, supra, at p. 478.) Hon is inapplicable here because, contrary to Olfati’s claim, the trial court did not just determine governmental immunities barred Olfati’s action, but resolved Olfati’s FEHA claims against her on the merits. Olfati lacked facts to support the basic elements of her causes of action.
B. Section 1038
Section 1038 provides for an award of defense costs, including attorney fees, in any civil proceeding under the California Tort Claims Act, if the trial court determines that the plaintiff did not bring “the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint . . . .” (§ 1038, subd. (a).) In such case, “the court shall render judgment in favor of [the defendant] in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party.” (Ibid., italics added.)
“[D]efendants may recover defense costs under section 1038 if the trial court finds the plaintiffs lacked either reasonable cause or good faith in filing or maintaining the lawsuit.” (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 853.)
The question of reasonable cause asks whether any reasonable attorney would have thought the claim tenable. (Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1586.) It is to be determined objectively, as a matter of law, and is subject to de novo review. (Ibid.) The question of good faith is a factual inquiry into the plaintiff’s subjective intent or purpose in pursuing the action and whether the plaintiff believed that the action was valid. (Ibid.) Because it is a factual question, it is reviewed for substantial evidence. (Ibid.)
We have held that in a malicious prosecution action, where a plaintiff must prove, inter alia, that the action was brought without probable cause, the test is “not whether defendant had reasonable grounds to seek some kind of relief in the original action; it is instead whether he had reasonable grounds for asserting the theory for relief contained in the complaint and tried to the factfinder. [Citation.]” (Williams v. Coombs (1986) 179 Cal.App.3d 626, 644, disapproved on other grounds in Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 882-883 & fn. 9.) Similarly, we conclude the test for determining whether a reasonable attorney would have thought the claim tenable for purposes of section 1038 depends upon the tenability of the action actually brought. (See Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 571.)
Here Olfati alleged two common law tort causes of action; one for fraud and one for defamation.
The elements of fraud are (1) misrepresentation (false representation, concealment, or nondisclosure) of a material fact; (2) scienter or knowledge of the falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) In addition to asserting statutory immunities to all of Olfati’s causes of action, defendants specifically contended Olfati could not establish all the required elements of fraud because she had no evidence showing any employee of the BOE made a misrepresentation to her on which she justifiably relied to her detriment. Olfati did not respond in her opposition to defendants’ contentions regarding her lack of proof for the elements of her fraud cause of action, apparently conceding the point. Noting the lack of both evidence and opposition, the trial court granted summary adjudication and later assessed fees pursuant to section 1038.
After recounting, without any citation to the record, a version of the facts she claims are undisputed (although even a cursory review of the parties’ statements of undisputed facts shows they are very much in dispute), Olfati claims generally there were reasonable grounds for an attorney to objectively believe in prosecuting the action. She does not suggest, however, any grounds for an attorney to objectively believe a “fraud” claim was tenable. She merely argues the BOE’s actions were not reasonable or justified and that this supported her belief that she “had been legally wronged” by the BOE and its employees. This is not sufficient to show she had “reasonable cause” within the meaning of section 1038 for the specific action she brought. “If a legislative purpose to protect public entities from meritless claims is to be served, a plaintiff must bear a burden of investigation sufficient to establish at least a basis for reasonable belief that all elements exist.” (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 933.) Based on the record here, we conclude Olfati lacked reasonable cause to sue for fraud.
“[A]ny reference in the brief must be supported by a citation, regardless of where in the brief that reference appears.” (City of Lincoln v. Barringer, supra, 102 Cal.App.4th 1211, 1239, fn. 16 [referring to former rule 14, previously rule 15, now rule 8.204(a)(1)(C)].) This “is the only construction consistent with the purpose of the citation requirement, which is to enable appellate justices and staff attorneys to locate relevant portions of the record expeditiously without thumbing through and rereading earlier portions of a brief.” (Ibid.)
We reach the same conclusion as to Olfati’s defamation cause of action. As we have previously discussed, Thiella’s statement was not actionable defamation and the other alleged defamatory communications were covered by at least two privileges and multiple statutory immunities. Objectively considered, no reasonable attorney would have concluded Olfati’s defamation action was tenable. (Hall v. Regents of University of California, supra, 43 Cal.App.4th at p. 1586.)
Olfati again claims Hon, supra, 53 Cal.App.4th 470, should be applied to bar any fees under section 1038 when a plaintiff’s action is barred by statutory immunities because such defenses are “jurisdictional in nature.” (Gates v. Superior Court (1995) 32 Cal.App.4th 481, 509.) We are not persuaded. A failure to exhaust administrative remedies, as found in Hon, requires no consideration of the facts of the underlying action. Such a situation is distinctly different from a finding of statutory immunity, which requires an analysis of the underlying factual situation and reaches the merits of the action.
Indeed, Olfati fails to acknowledge that section 1038 awards have been found appropriate in statutory immunity cases. For example, in Kobzoff v. Los Angeles County Harbor/UCLA Medical Center, supra, 19 Cal.4th 851, 854, 863-864, the California Supreme Court permitted an award under section 1038 where the county defendant was immune from liability for malpractice and negligence when a mental patient escaped and died because of Government Code section 856.2, which provides immunity for the injury or death of an escaping mental patient. The Supreme Court concluded that “[i]n light of the County’s indisputable immunity, plaintiffs’ decision to pursue the action against it notwithstanding that immunity was unreasonable as a matter of law.” (Id. at p. 863.) And, in Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934, an award under section 1038 was upheld where the plaintiff claimed she had suffered a wrongful arrest, but she had stipulated in an earlier criminal action that the officer had probable cause to arrest her, and Penal Code section 836.5, subdivision (b) provided immunity where the arrest was made with probable cause.
Moreover, the trial court here did not grant summary judgment/adjudication solely on the basis of statutory immunity. The trial court determined Olfati had no evidence to prove all the elements of fraud; a clear resolution of the merits of that cause of action. The trial court also found Olfati’s defamation action barred by privileges, as defamation is defined as an “unprivileged” communication. (Civ. Code, §§ 45, 46.) A finding of privilege, therefore, is a finding on the elements of the action. (Stockton Newspapers, Inc. v. Superior Court (1988) 206 Cal.App.3d 966, 975, disapproved on a different ground in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 732-733, fn. 18 [“By . . . definition, the absence of a privilege is an element of the tort”].) Hon, supra, 53 Cal.App.4th 470 is not applicable to Olfati’s tort action.
As Olfati’s tort claims were not brought with reasonable cause, the trial court was required to award “all reasonable and necessary defense costs,” including attorney fees. (§ 1038, subd. (a).)
C. The Amount of Attorney Fees
In a single paragraph at the end of her argument regarding “reasonable cause,” Olfati argues defendants should not be awarded attorney fees because the amount of time spent by defendants’ counsel working on the case was “hugely suspicious” and the amount of billing was “not reasonable[.]” Olfati complains the trial court believed defendants’ counsel and ignored her counsel’s declaration and comments that defendants’ counsel billed for hearings that did not occur.
Yet again, this contention is set forth without an appropriate heading and without citations to supporting evidence in the record. In response to defendants’ notation of this failure, Olfati appears to suggest her failure has been condoned by this court’s failure to return or strike her brief pursuant to rule 8.204(e)(2). She then purports to correct the problem by citing us to the reporter’s transcript of the hearing on defendants’ motion for fees and costs during which she made the same accusations and, belatedly, to a chart of challenges to defense counsel’s bill submitted by Olfati’s counsel in a supplemental opposition to defendant’s motion for fees.
First, as the Advisory Committee comment to subdivision (e) of rule 8.204 explains, rule 8.204(e)(2) “recognizes steps the reviewing court may take to obtain a brief that does comply with the rule. Subdivision (e)(2) does not purport to limit the inherent power of the reviewing court to fashion other sanctions for such noncompliance.” (Advisory Com. com., 23 pt. 3 West’s Ann. Codes, Rules (2006 ed.) foll. rule 8.204, p. 11, italics added.) Our failure to return or strike Olfati’s brief does not approve her violation of the appellate rules; nor does it restrict our ability to deem the issue forfeited by appellant’s failure to support her claim in her opening brief under a separate heading with citations to the record. (See Hansen v. Sunnyside Products (1997) 55 Cal.App.4th 1497, 1504, fn. 2.; Opdyk v. Cal. Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, & fn. 4.)
Second, defense counsel replied to Olfati’s same claims in the trial court with a declaration disputing those claims. Thus, this issue presented a classic situation of disputed facts, which was resolved by the trial court. “We may not reweigh on appeal a trial court’s assessment of an attorney’s declaration. [Citation.] ‘The trial court, with declarations and supporting affidavits, [is] able to assess credibility and resolve any conflicts in the evidence. Its findings . . . are entitled to great weight. Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court’s ruling is based on oral testimony or declarations. [Fn. omitted.]’ [Citation.]” (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323 [affirming trial court’s reduction of compensable attorney fees].)
Olfati has failed to show error in the trial court’s setting of the amount of attorney fees and costs.
DISPOSITION
The “Judgment Sustaining Defendants’ Demurrer to Plaintiff’s Second Amended Complaint and Dismissing Defendants” is affirmed. The “Judgment Against Plaintiff Parvin Patty Olfati Awarding Attorneys’ Fees And Costs To Defendant Board Of Equalization” is affirmed. Costs on appeal are awarded to respondents. (Cal. Rules of Court, rule 8.278(a).)
We concur: RAYE, Acting P.J. HULL, J.