Opinion
F085829
04-25-2024
SAMREEN RIAZ, Plaintiff and Appellant, v. FAMILY HEALTH CARE NETWORK, Defendant and Respondent.
Samreen Riaz, in pro. per., for Plaintiff and Appellant. Jackson Lewis, Andrew J. Kozlow and Dylan B. Carp for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCU288720, Bret D. Hillman, Judge.
Samreen Riaz, in pro. per., for Plaintiff and Appellant.
Jackson Lewis, Andrew J. Kozlow and Dylan B. Carp for Defendant and Respondent.
OPINION
PENA, Acting P. J.
Samreen Riaz (plaintiff) appeals from the granting of summary judgment in favor of her former employer, Family HealthCare Network (defendant). Plaintiff represented herself in the trial court and continues to do so on appeal. Although she opposed defendant's motion for summary judgment, plaintiff relied on the allegations in her pleadings and unauthenticated documents attached to the operative complaint. Her opposition papers contained no admissible evidence.
Besides challenging the summary judgment ruling, plaintiff assigns error to the granting of a trial continuance (which allowed defendant to timely move for summary judgment); the denial of a motion to disqualify the judge who made the subject rulings; and the denial of a motion for reconsideration of the summary judgment ruling. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Background information for the claims not directly pertaining to the summary judgment ruling is provided in the Discussion, post.
In January 2019, defendant hired plaintiff as a full-time, salaried dentist. In October 2019, plaintiff's employment was terminated. The current lawsuit was filed approximately 23 months later, in September 2021, after plaintiff obtained a right-to-sue letter from the Department of Fair Employment and Housing. Plaintiff's operative second amended complaint was filed in May 2022.
Plaintiff's Allegations
The operative complaint alleges nine causes of action, which are labeled as follows (some capitalization omitted): "Intentional Infliction of Emotional Distress"; "Retaliation in Violation of Labor Code 1102.5 and FEHA"; "Disability Discrimination (CGC) § 12940 (A)"; "Failure to Provide Accommodation Under CGC § 12940"; "Failure to Engage In an ... Interactive Process (CGC 12940(N))"; Failure to Prevent Discrimination: (CGC 12940 K)"; "Retaliation in Violation of . _ Labor (CGC 12940 (H)"; "Wrongful Termination"; and "Violation of Bus. &Prof. Code § 17200." The unverified pleading is 58 pages in length. An additional 123 pages of jumbled, unauthenticated documents are attached to the complaint as "Exhibit 1."
A combined reading of the complaint and its attachments indicates plaintiff worked for a company called "Altura" prior to her employment with defendant. Altura and defendant are both alleged to be "[f]ederal supported health center[s]," but the meaning of that designation is not explained. During the same month plaintiff was hired by defendant (January 2019), she filed a lawsuit against Altura for "wrongful termination and retaliation." Soon thereafter, defendant allegedly "unleashed an illegal organized covert harassing system ... with the intent to harm the plaintiff's health and inflict emotional distress on her with the unlawful motive of discrimination to interfere with the court proceedings against Altura."
Plaintiff claims to have experienced various forms of harassment while employed by defendant. Although pleaded with excessive detail, the allegations are nevertheless confusing and difficult to summarize. We will attempt to explain a few representative examples of the alleged "harassment."
The computer software used by defendant to maintain its patients' dental records (also known as "charts") included within the user interface a field labeled "Global Alert," which contained medical information such as whether the patient was pregnant or had a history of substance abuse. The words "Flasher add notes" appeared within some of the Global Alert fields, which plaintiff allegedly interpreted as having a sexual connotation associated with a slang meaning of "flash," i.e., to expose oneself. Plaintiff complained to management, but the issue was never resolved to her satisfaction. She later noticed the presence of flashlights in and around the workstations at defendant's various office locations, which she assumed were placed there to further antagonize and harass her- apparently because flashlight includes the word "flash." Plaintiff similarly took offense to an e-mail allegedly sent by her immediate supervisor to multiple dentists concerning "flash sterilization" (a subtopic of "Disinfection and Sterilization Guidelines.")
The appellate record does not explain what "Flasher add notes" actually means. However, in an attachment to the operative complaint, there is a purported e-mail message to plaintiff from an unidentified sender containing the following statement: "The Flasher Alert has been explained to you and the word Flasher is not able to be changed since it is part of the eClinicalWorks software program. The alert is designed to notify anyone going into the patient profile of an alert and does not go on your patient note."
Plaintiff also claimed to believe many of the patients she treated while working for defendant were "recruited" and "coached." Unidentified conspirators had allegedly told these patients what to say during their interactions with plaintiff to upset and offend her. Examples provided in the pleadings include multiple instances of patients using the "'F' word" and other coarse language while receiving treatment. One patient "stated [']My throat is hurting "Jesus Christ,"['] [and] kept repeating 'Jesus Christ.'" Another patient said their tooth had been "hurting since Christmas" and, as plaintiff perceived it, "went out of their way to discuss 'Christian or Christmas' ... to discriminate against and harass" plaintiff because of her Muslim faith.
Plaintiff describes herself as a whistleblower for informing defendant about "OSHA violations" and the "waste of resources involving recruited patients." The OSHA (Occupational Safety and Health Administration) issue arose from her colleagues wearing lab coats and protective equipment into the bathroom and/or hanging such items in the bathroom. Plaintiff's supervisor allegedly responded by telling plaintiff "this office [has] kept protective wear in a bathroom for 8 plus years" and that he had "confirmed . it was not violation of OSHA." Plaintiff alleges defendant was subsequently "cited by OSHA Compliance" for "keeping clean and soiled protective wears [sic] for staff in a bathroom."
Due to the "stress of organized harassment," plaintiff began seeing a psychiatrist. According to her own allegations, plaintiff was diagnosed with having "Delusional Disorder." She requested an accommodation for her disability, and her employment was terminated. Although defendant claimed the decision was based on performance and behavioral issues, plaintiff contends those reasons were pretextual. The pleadings allege her job performance record was "stellar."
Defendant's Motion and Supporting Evidence
In November 2022, defendant filed a motion for summary judgment or, in the alternative, summary adjudication. We note plaintiff chose not to designate the motion papers or any of defendant's evidence for inclusion in the record on appeal. "It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Although the omission would have been fatal to plaintiff's appeal, this court granted defendant's request to augment the clerk's transcript with the essential material.
Defendant's summary judgment motion was supported by an attorney declaration, which authenticated attached excerpts from plaintiff's deposition testimony in this case. The motion was further supported by the declaration of defendant's human resources manager, which authenticated several attached business records concerning plaintiff's employment and termination. (See Evid. Code, § 1271.)
Defendant's evidence included a written performance evaluation dated August 20, 2019. The document was signed by plaintiff and her supervisor, Dr. Mirenayat. Plaintiff's performance was evaluated using numerical scores for seven different categories. The following notation appears at the top of the document: "Scoring Scale: 1- Developing, 2- Competent, 3- Excelling." (Boldface omitted.) After approximately eight months on the job, plaintiff had scored a "1" in the categories of "Job Knowledge," "Customer Service," and "Commitment to Excellence &Quality." She received the score of "2" in the categories of "Organization Support," "Productivity," "Problem Solving," and "Communications." Plaintiff's overall score was 1.57.
Two weeks later, on September 3, 2019, defendant issued a written warning to plaintiff for insubordination and failure to "meet [her] job description." The insubordination section read as follows:
"A) [Plaintiff] refuses to lock progress notes after several discussion[s.]
"- On 06/23, Dr. Mirenayat emailed [plaintiff] to notify her to lock progress notes.
"- On 07/01, I verbally discussed with [plaintiff] to lock pending notes since May 2019 as Global Alerts are not dental notes and do not carry over into provider progress notes.
"- On 08/23, I emailed [plaintiff] to lock 45 open progress notes immediately as they have been open since May, 2019 and explained job expectation and policy of progress notes being locked in 72 hours.
"B) Clear defiance to cell phone and other electronic devices policy verbalized by [plaintiff].
"- On 08/23 the use of no phones, headphones during patient flow expectations was discussed and [plaintiff] verbally refused to follow policy after several attempts to explain. HR Director was present.
"- On 08/27, [plaintiff] continued to use cell phone on clinic floor during patient flow throughout the day."
The section regarding job performance listed the following deficiencies:
"A) Unable to behave with courtesy when interacting with support staff or work as part of a team.
"- 'Hushes' providers and staff.
"- Gets upset with support[] staff regarding common work place terminology, tools, and colors.
"- Displayed unprofessionalism regarding common workplace terminology with staff in front of patients[.]
"B) Unable to meet the responsibility for number of diagnostic, preventive, and restorative oral procedures:
"i) Does not discuss or explain treatment and treatment options to patients or inform patient on how to prevent dental problems. The expectation was addressed on 04/25/2019 by Dr. Mirenayat and on 07/01/2019 ....
"ii) On 03/04/2019, [plaintiff] communicated to patient and documented to complete root canal therapy for patient and when patient returned for treatment on 08/19[/]2019 (taking time off from work), [plaintiff] refused to complete treatment and stat[ed] 'She does not do molar endo.'
"-After review of progress notes, dental testing and dental assessment did not align.
"iii) On 06/25/2019, [plaintiff] failed to treat swollen dental emergency patient seen around 4:45 pm with with [sic] medication in an efficient manner. She notified the patient she will send the antibitotics [sic] the next morning. Concerned staff notified another provider and patient was brought back for immediate IV antibiotics and prescription. I discussed this encounter with [plaintiff] on 07/01/219 [sic], she admitted to her actions and that she was frazzled by staff using common dental terminology and just wanted to leave.
"iv) On 08/24/2019, [plaintiff] failed to diagnose a large carious lesion clearly visual on the radiograph and patient's symptoms. ... On 08/28, Dr. Mirenayat addressed case and provider expectations verbally with [plaintiff].
"v) On 08/24/2019, [plaintiff] failed to address chief complaint of patient and notes did not reflect reason for patient visit[.] [A]ll default answers in [template] were left in progress notes. Patient left very concerned and rescheduled with another provider. ... On 08/28, Dr. Mirenayat addressed case and provider expectations verbally with [plaintiff].
"C) Lacks General Development Attributions:
"- Daily occupies a closed door operatory and closes the door, leaving it unavailable for peds patients and limit staff communication regarding patients....
"- [Plaintiff] has verbally expressed she likes to be isolated and limit interaction, however communication is essential to a provider role.
"D) Unable to consistently behave with courtesy when interacting with patients/family members or show[] understanding of patient's need[s][.]
"- On 08/21/2019 [plaintiff] reports, 'In my observation some of these patient are not our regular patient, these patient usually come as a toothache and do not come for the sake of treatment. I always try to take care of patients clinical needs and establish good rapport. However there are number of cases where the sole purpose of visit is to lodge complaint against provider or harass provider and make them uncomfortable at work.' This was reviewed with [plaintiff] on 08/23 with HR and myself."
Defendant's written warning concluded with this statement: "Any additional performance concerns may result in further disciplinary action, up to and including termination." (Boldface omitted.)
On October 8, 2019, plaintiff submitted a health care provider's note to defendant in connection with an accommodation request for her disability. Her psychiatrist had allegedly recommended or prescribed the following work restrictions: "'Allow work of 2 days a week alternated with 3 days a week - 2 days one week &then 3 days the next week'" for at least six months. The actual note is not included in defendant's evidence. However, the information was partially corroborated by plaintiff's deposition testimony and is entirely consistent with the allegations in her complaint. In other unverified filings, plaintiff has admitted to "providing a reasonable accommodation medical certification on Oct. 8, 2019 thru email and phone text."
According to her employment records, plaintiff had a meeting the next day, October 9, 2019, with defendant's then "Interim Director of Human Resources." In a document entitled "Reasonable Accommodations Interactive Process Meeting Summary Form," plaintiff is alleged to have said that even under her proposed modified schedule, she would "only come in if she feels well enough and if the stress is bearable[,] otherwise she will not be able to provide good patient care." Plaintiff also allegedly admitted she was "not sure if[] the requested accommodation will relieve her stress." The document further states, in pertinent part: "After review by the Accommodations Committee on 10/10/2019, it has been determined the request for a reduced work schedule that [plaintiff] is unsure will resolve her issues, combined with [plaintiff] stating she will only come into work if she can bear the stress of working[,] is not a reasonable accommodation."
On or about October 11, 2019, defendant issued a formal written denial of plaintiff's accommodation request. The document states, in pertinent part: "The essential functions of a Staff Dentist require the employee to be 'Responsible for the direct provision of dental services meeting all established productivity expectations'. After a careful review of your request, the Accommodations Committee has determined that we are unable to provide you with a reasonable accommodation at this time because you state you are unsure if the accommodation will resolve the issues you are incurring and you are requesting that you will come into work only if you feel able, even with the alternate schedule."
On October 13, 2019, defendant's then Interim Director of Human Resources sent an e-mail to plaintiff regarding her allegations of harassment and other various grievances. The pertinent contents of the message were as follows:
"Dr. Riaz
"This e-mail summarizes the results of Family HealthCare Network's investigation into your allegations that Dr. Bhullar, Dr. Amin, Dr. Mirenayat and multiple other FHCN Dental, housekeeping, IS and HR team members acted inappropriately and/or violated company policy by:
"• Staring at you, but not in a sexual way
"• Not taking your complaints seriously
"• Violating your privacy
"• Desensitizing you to words/phrases
"• Including you in generic informational group e-mails
"• Placing items in or near the work area you are using for the day
"• Assigning you patients that show the Flasher Add Notes alert
"• Speaking about non-work related issues when you are nearby
"• Bringing you supplies that you do not use
"• Ordering supplies that you do not want to use due to the label or name
"• Not giving you time off work to write down your complaints
"• A male housekeeper walking into the women's bathroom inappropriately
"As we discussed, Family HealthCare Network takes such allegations very seriously and will not tolerate inappropriate behavior in the workplace. Employees are encouraged to bring such matters to our attention at any time, without fear of any adverse action being taken against them for doing so. In my capacity as the Interim Director of Human Resource, I have interviewed the employees identified as being involved, including you, and our investigation is now complete. As we have discussed, we could not confirm your allegations that inappropriate behavior and violations of company policy took place."
On October 15, 2019, defendant notified plaintiff in writing that her employment was being terminated. The reasons for her termination were poor job performance and unprofessional behavior. Numerous examples were detailed within the termination notice, and nearly all were incidents that had occurred subsequent to defendant's written warning in early September. These excerpts are illustrative:
"09/04/19 A Registered Dental Assistant was addressed by [plaintiff] in an unprofessional tone in front of patient regarding not putting a bib on patient. On that same date, [plaintiff] became upset with another Registered Dental Assistant in front of a patient because her chair was adjusted differently."
"09/05/19 A Registered Dental Assistant was addressed unprofessionally and loudly by [plaintiff] in front of a patient regarding preparation of a piece of equipment. The RDA explained that the equipment had not been set up because she did not know which configuration would be used by [plaintiff]."
"09/10/2019 [Plaintiff] sent out a mass email to dental department with an unprofessional response to a work related email."
"On 09/20/2019, [plaintiff] refused to accommodate a scheduled patient, and wanted to send the patient to the walk-in clinic instead of following through on the treatment plan she created for the patient on 09/11/2019. This situation caused a disruption to patient flow for the front office and to another Provider who voluntarily accommodated the patient."
"On 09/24/2019 [plaintiff] left a patient unattended during patient care and left the site. At the same time, an additional patient was on the way to her worksite for an appointment. [Plaintiff] failed to inform her direct supervisor or any of her peers at the site of her intention to leave."
"10/07/2019 [Plaintiff] sent an inappropriate response to another dental provider via e-mail."
"10/10/2019 [Plaintiff] instructed a Dental Patient Representative outside of established process to reassign patients because she was leaving without notifying the Assistant Dental Director. Additionally, [plaintiff] refused to allow a Dental Assistant to use an x-ray machine that is to be shared between two dental operatory's that was not in use."
Defendant's summary judgment evidence also included its written policies and procedures on antiharassment, antidiscrimination, antiretaliation, and reasonable accommodation of disabilities.
Plaintiff's Opposition
In December 2022, plaintiff filed two sets of papers in response to the summary judgment motion. The first document quoted extensively from defendant's briefing and then directed the reader to cross-reference plaintiff's second filing, entitled "Opposition to 'Defendant Separate Statement of Undisputed Material Facts ....'" (Boldface and some capitalization omitted.) Attached to the latter filing, and labeled as "Exhibit A," were 19 pages of unauthenticated documents. Plaintiff did not file any affidavits, declarations, or other admissible evidence.
Defendant objected in writing to the admission or consideration of plaintiff's unauthenticated attachments to her opposition papers.
Summary Judgment Ruling and Appeal
In February 2023, the trial court issued a 10-page ruling on defendant's motion. The ruling noted plaintiff's failure to proffer any admissible evidence and rejected plaintiff's attempt to rely on the allegations in, and attachments to, her pleadings. The ruling states, in relevant part: "For the Court to consider any attachments to the operative complaint, the Court would need, hearsay issues aside for the moment, a demonstration of authentication and/or foundation for the use of such documents."
Defendant was found to have met its initial evidentiary burden as to each cause of action. Plaintiff was found to have failed to meet her burden to show the existence of any triable issues. The motion for summary judgment was therefore granted.
A judgment for defendant was entered on February 17, 2023. Defendant filed and served a notice of entry of judgment on February 21, 2023. On the same day as the notice of entry, plaintiff attempted to file a motion for reconsideration of the summary judgment ruling on an ex parte basis. The motion was denied the next day. On March 2, 2023, plaintiff filed a notice of appeal.
DISCUSSION
I. Denial of Motion for Reconsideration
Plaintiff contends the trial court erred by denying her motion for reconsideration of the summary judgment ruling. The challenged order is not included in the record on appeal, but plaintiff alleges the trial court denied her motion for lack of jurisdiction. The ruling was correct.
"It is settled law that a motion for reconsideration is ineffectual if it is filed after entry of judgment." (Marshall v. Webster (2020) 54 Cal.App.5th 275, 281; accord, Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482 ["entry of judgment divests the trial court of authority to rule on a motion for reconsideration"].) Plaintiff's motion for reconsideration was filed after the trial court had already entered a judgment for defendant. As such, the motion was properly denied.
II. Denial of Motion to Disqualify
In December 2022, while the defense motion for summary judgment was pending, plaintiff filed a request entitled "Ex Parte Application For Motion to Disqualify A Judge." (Boldface and some capitalization omitted.) The record on appeal does not contain a ruling on this request. Plaintiff claims her request was erroneously denied.
"Code of Civil Procedure section 170.3, subdivision (d) provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory." (People v. Panah (2005) 35 Cal.4th 395, 444.) The denial of a disqualification motion is reviewable only by a petition for a writ of mandate. (Code Civ. Proc., § 170.3, subd. (d).) Therefore, no claims may be raised in this appeal regarding judicial disqualification rulings. (Ibid.; Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 671-672.)
III. Granting of Trial Continuance
A. Background
Plaintiff filed this lawsuit in September 2021. Because defendant successfully demurred to the original and first amended versions of the complaint, the operative pleading was not filed until May 2022. Defendant's answer to the second amended complaint was filed on June 9, 2022.
The record does not disclose when the original trial schedule was established. According to an attorney declaration in the clerk's transcript, a trial date of October 17, 2022, had already been set by July 2022. Within three months of the case finally being at issue, there was a change in defense counsel. Defendant's new counsel substituted into the case on September 8, 2022. Plaintiff was deposed five days later, on September 13, 2022. A mandatory settlement conference was held on September 29, 2022.
On October 3, 2022, defendant filed an ex parte application to continue the trial date from October 17, 2022, to April 3, 2023. A primary reason for the requested continuance was to allow defendant to move for summary judgment. Plaintiff opposed the request. On October 4, 2022, the trial court granted the continuance and set a new trial date of March 13, 2023.
B. Law and Analysis
"Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits." (Cal. Rules of Court, rule 3.1332(c).) An affirmative showing of good cause is required before the request can be granted. (Ibid.)
"The trial court must consider all relevant facts and circumstances surrounding the continuance, including: '[t]he proximity of the trial date' (rule 3.1332(d)(1)); '[t]he length of the continuance requested' (rule 3.1332(d)(3)); '[t]he availability of alternative means to address the problem that gave rise to the motion or application for a continuance' (rule 3.1332(d)(4)); '[t]he prejudice that parties or witnesses will suffer as a result of the continuance' (rule 3.1332(d)(5)); and '[w]hether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance' (rule 3.1332(d)(10))." (Qaadir v. Figueroa (2021) 67 Cal.App.5th 790, 813.)
"Trial courts generally have broad discretion in deciding whether to grant a request for a continuance." (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.) "The trial court's exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record." (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.)
Because trial court orders are presumed correct on appeal, an appellant must affirmatively demonstrate reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Plaintiff fails to meet this burden. Although she alleges the trial continuance was erroneously granted, her briefing lacks any substantive argument on the issue.
Furthermore, there is nothing in the record to suggest the trial court's ruling was unfair or unreasonable. A motion for summary judgment must be filed at least 105 days before trial. (See Code Civ. Proc., § 437c, subd. (a).) Assuming the original trial date (10/17/22) was already set when defendant answered the operative complaint on June 9, 2022, defendant had less than a month in which to prepare and file its summary judgment motion. The record does not affirmatively show a lack of diligence by the defense in conducting discovery, and the summary judgment filing deadline had already passed when new defense counsel substituted into the case on September 8, 2022. Substitution of counsel is a circumstance "that may indicate good cause." (Cal. Rules of Court, rule 3.1332(c)(4).)
Other circumstances weighing in defendant's favor included the fact there had been no prior continuances, the length of the continuance requested was less than six months, and there were no "alternative means to address the problem" of the summary judgment deadline having already expired. (Cal. Rules of Court, rule 3.1332(d)(1)-(4); see McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118 [holding "trial courts do not have authority to shorten the minimum notice period for summary judgment hearings"].) As for any potential prejudice to plaintiff, her opposition brief only vaguely alleged that continuing the trial would "impact [her] other pending court hearings [and] negatively affect the court's calendar . . .." We do not perceive a clear abuse of discretion in the trial court's decision to grant the continuance.
IV. Granting of Summary Judgment
A. Standard of Review
"A trial court should grant a defendant's motion for summary judgment if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. On appeal, we review the matter independently, resolving in the plaintiff's favor any doubts regarding the propriety of summary judgment." (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 415.) The standard of review requires that we scrutinize the defendants' motion papers and liberally construe those of the plaintiff to determine the existence of any triable issues. (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10.) "There is 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." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
B. Plaintiff's Deficient Briefing and Failure to Present Admissible Evidence
Defendant makes a forfeiture argument, contending plaintiff "preserved no issue because her [opening] brief is defective and incoherent." We agree in part. Plaintiff preserved her overall challenge to the summary judgment ruling, but the scope of our analysis is narrowed by her failure to present admissible evidence below and the inadequacy of her briefing on appeal.
"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851.) Meeting the initial burden of production "causes a shift, and the opposing party is then subjected to a burden of production of his [or her] own to make a prima facie showing of the existence of a triable issue of material fact. ... A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at pp. 850, 851.)
"It is fundamental that to defeat summary judgment a plaintiff must show 'specific facts' and cannot rely on allegations of the complaint." (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054; accord, Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) The summary judgment statute expressly forbids reliance "upon the allegations or denials of [the] pleadings to show that a triable issue of material fact exists." (Code Civ. Proc. § 437c, subd. (p)(2).) The motion "must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken." (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120; see Code Civ. Proc., § 437c, subd. (b).) As discussed, plaintiff did not file any affidavits, declarations, or other admissible evidence in opposition to defendant's motion for summary judgment.
The trial court appropriately refused to consider the various documents attached to plaintiff's operative complaint. "Documents used in support of a motion for summary judgment must be properly authenticated or they may not be considered." (Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 606; see Evid. Code, § 1401, subd. (a) ["Authentication of a writing is required before it may be received in evidence"].) "Unless the opposing party admits the genuineness of the document, the proponent of the evidence must present declarations or other 'evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.'" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855, quoting Evid. Code, § 1400.) Plaintiff made no attempt to authenticate the attachments to her complaint.
Plaintiff has also forfeited any claims regarding the admissibility of the documents attached to her complaint. "Where, as here, a proponent of evidence does not assert a particular ground of admissibility below, he or she is precluded from arguing on appeal that the evidence was admissible under a particular theory." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282.) Furthermore, the authentication issue is not substantively addressed in plaintiff's appellate briefing. She merely alleges, without further argument, that "Tulare superior court is in error and abuse discretion when failed to consider attached evidence to the operative complaint and put it on side by referring it a hearsay issue or not consider them authetic." (Sic.) A reviewing court "is not required to consider alleged errors where the appellant merely complains of them without pertinent argument." (Strutt v. Ontario Savings and Loan Assn. (1972) 28 Cal.App.3d 866, 873; accord, Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656.)
There is a separate issue regarding the 19 pages of assorted documents attached to plaintiff's opposition papers. Defendant objected to these documents for lack of foundation and authentication. The trial court's summary judgment ruling alternates between noting plaintiff's failure to produce any evidence ("no evidence") and her failure to produce "admissible evidence," and the ruling thus seems to impliedly sustain defendant's objections. However, "if the trial court fails to rule expressly on specific evidentiary objections, it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal." (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534, italics added.) Although we believe the presumption is rebutted by the trial court's stated analysis, defendant has taken the precautionary measure of reasserting its objections on appeal. (See ibid. [holding "presumptively overruled objections can still be raised on appeal, with the burden on the objector to renew the objections in the appellate court"].) The objections are well taken for the reasons discussed above regarding the necessity of authenticating documentary evidence. It should also be noted that plaintiff failed to respond to defendant's renewed objections.
The description of plaintiff's opening brief as "defective and incoherent" is generally accurate, and defendant's forfeiture argument is mostly correct. "We are not required to examine undeveloped claims or to supply arguments for the litigants." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Plaintiff's opening brief repeats a pattern of making conclusory assertions of error and then citing to large swaths of the 695-page clerk's transcript. For example:
"Tulare superior court is in error and abuse discretion when failed to consider that plaintiff met the burden of proof related to the triable issue of one or more material facts. (see record on appeal 521-602, 318-444, 604642, 259-458.)" (Sic.)
The appealing party "cannot simply say the court erred[] and leave it up to the appellate court to figure out why." (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) "'The reviewing court is not required to make an independent, unassisted study of the record in search of error . . .. [E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.'" (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Unexplained citations to the record and/or case law may be disregarded. (See Allen v. City of Sacramento, supra, 234 Cal.App.4th at p. 52 ["citing cases without any discussion of their application to the present case results in forfeiture"].) Although plaintiff has forfeited arguments in her appellate brief, we decline to simply affirm the judgment without any evaluation of defendant's motion.
On a motion for summary judgment, even in the absence of a formal opposition, the moving party must satisfy its initial burden to show there are no triable issues. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087.) "[T]he burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers. And because a reviewing court employs the same three-step process in the course of its de novo review of a summary judgment [citation], this conclusion applies with equal force on appeal." (Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 367, fn. omitted.) Despite plaintiff's inadequate briefing and evidentiary failures, we will analyze whether defendant met its initial burden for each cause of action.
C. Law and Analysis
1. First Cause of Action
"A cause of action for intentional infliction of emotional distress exists when there is '"'"(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct."'"'" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) "A defendant's conduct is 'outrageous' when it is so '"'extreme as to exceed all bounds of that usually tolerated in a civilized community.'"' [Citation.]" (Id. at pp. 1050-1051.) Discipline and criticism are considered "a normal part of the employment relationship" (Shoemaker v. Myers (1990) 52 Cal.3d 1, 25), and liability "'"does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities"'" (Hughes, at p. 1051).
Defendant's evidence showed it had an antiharassment policy, and that it investigated plaintiff's allegations of harassment and other complaints about her working environment. Her allegations were determined to be unfounded. Defendant therefore met its prima facie burden as to the essential element of extreme and outrageous conduct. Plaintiff offered no evidence to show defendant did not investigate her allegations, nor did plaintiff offer any evidence of outrageous conduct for which defendant could have been liable.
There is a question whether defendant unwittingly created a triable issue with its own evidence. Defendant introduced excerpts from plaintiff's deposition wherein plaintiff claimed to have met with a "Dr. Ayesha Amin" regarding her concerns about "recruited patients." Plaintiff attested to having told Dr. Amin these patients knew "very specific information related to [her] privacy," i.e., information they could not have known without having eavesdropped on her personal phone calls and/or Internet usage. Dr. Amin, whom plaintiff identified as "the dental director of Family HealthCare Network," allegedly responded by saying, "'Don't you understand? Your name has been flagged.'" Dr. Amin was further alleged to have said, "'One or two people monitor you because your name has been flagged.'"
While plaintiff may have been describing someone's ill-advised attempt at sarcasm, there is an arguable issue as to whether an admission was made that could be imputed to defendant. (See People v. Cortez (2016) 63 Cal.4th 101, 125 ["ambiguity regarding the meaning of a party's out-of-court statement" is not necessarily determinative of whether the statement may be introduced as an admission].) The alleged statements were not admissible as a party admission under Evidence Code section 1220 because Dr. Amin is not a party to the case. The closer question is whether the statements were admissible under Evidence Code section 1222 as an authorized admission.
"Evidence containing hearsay is not admissible evidence and will not raise a triable issue defeating summary judgment." (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1026-1027.) "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and [¶] (b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence." (Evid. Code, § 1222.)
The authorized admission exception to the hearsay rule "has been interpreted in California as only applying to high-ranking organizational agents who have actual authority to speak on behalf of the organization." (Snider v. Superior Court (2003) 113 Cal.App.4th 1187, 1203.) "Although place in an employer's hierarchy is important in determining authority to speak, [the declarant's] title, without more, is not sufficient to show he [or she] had authority to make admissions on behalf of a company." (O'Neill v. Novartis Consumer Health, Inc. (2007) 147 Cal.App.4th 1388, 1403.) Moreover, "[t]he proponent of hearsay has to alert the court to the exception relied upon and has the burden of laying the proper foundation." (People v. Livaditis (1992) 2 Cal.4th 759, 778.) Plaintiff did neither of those things.
Plaintiff made no attempt to lay the necessary foundation to admit Dr. Amin's alleged statements under Evidence Code section 1222, nor does the requisite foundation appear in the appellate record. Therefore, defendant's showing of entitlement to relief on the first cause of action is properly viewed as uncontroverted. As such, the trial court did not err by summarily adjudicating the claim in defendant's favor.
2. Second Cause of Action
Plaintiff's second cause of action alleges retaliation in violation of Labor Code section 1102.5. This statute "provides whistleblower protections to employees who disclose wrongdoing to authorities." (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709.) "As relevant here, section 1102.5 prohibits an employer from retaliating against an employee for sharing information the employee 'has reasonable cause to believe ... discloses a violation of state or federal statute' or of 'a local, state, or federal rule or regulation' with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation." (Ibid.)
In Lawson, the California Supreme Court clarified the respective burdens of the employer and employee for this type of claim. An employee-whistleblower has the burden to show, by a preponderance of the evidence, that retaliation was a contributing factor in the employee's termination or other adverse employment action. (Lawson v. PPG Architectural Finishes, Inc., supra, 12 Cal.5th at pp. 707, 712.) Put differently, "plaintiffs must show, by a preponderance of the evidence, that whistleblowing was a contributing factor in the employer's decision." (Id. at p. 712.) "[O]nce the employee has made that necessary threshold showing, the employer bears 'the burden of proof to demonstrate by clear and convincing evidence' that the alleged adverse employment action would have occurred 'for legitimate, independent reasons' even if the employee had not engaged in protected whistleblowing activities." (Ibid., quoting Lab. Code, § 1102.6.)
Defendant denied plaintiff had engaged in any whistleblower activity. Defendant's supporting evidence reflected a litany of complaints made by plaintiff and investigated by defendant's human resources department, but none of those grievances were suggestive of whistleblowing. Defendant's evidence also made a prima facie showing of legitimate, nonretaliatory reasons for the termination of plaintiff's employment. In the absence of any evidence that whistleblowing "was a contributing factor" (Lawson v. PPG Architectural Finishes, Inc., supra, 12 Cal.5th at p. 711), defendant's proffered evidence was sufficient to meet the clear and convincing standard and thus satisfied its initial burden of production.
Plaintiff's operative complaint alleged she had reported OSHA violations within weeks of being terminated. But plaintiff could not merely rely on the allegations in her pleadings. (Code Civ. Proc. § 437c, subd. (p)(2).) The trial court properly analyzed this failure of proof in its summary judgment ruling: "Plaintiff has not demonstrated by admissible evidence that Defendant had at least one retaliatory reason as a contributing factor in this action. [¶] ... [¶] Although Plaintiff pleads an OSHA claim was made in September 2019, there is no evidence presented to substantiate this claim or Defendant's knowledge of it prior to her termination, or any causal link thereto."
3. Third Cause of Action
Plaintiff's third cause of action alleges disability discrimination in violation of Government Code section 12940, which is part of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). The essential elements of a discrimination claim under the FEHA are (1) membership in a protected class, (2) competent performance in the position held, (3) "an adverse employment action, such as termination, ... and (4) some other circumstance suggests discriminatory motive." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) "Thus, a plaintiff must establish a causal nexus between the adverse employment action and his [or her] protected characteristic." (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 162.)
"An employer may meet its initial burden in moving for summary judgment by presenting evidence that one or more elements of a prima facie case are lacking, or the employer acted for a legitimate, nondiscriminatory reason. [Citations.] A legitimate, nondiscriminatory reason is one that is unrelated to unlawful bias and, if true, would preclude a discrimination finding." (Martin v. Board of Trustees of California State University, supra, 97 Cal.App.5th at p. 162.) "If the employer puts forth a legitimate basis for the adverse employment action, the burden of production shifts to the plaintiff to present evidence creating a triable issue of fact showing the employer's stated reason was a pretext for unlawful animus in order to avoid summary judgment." (Ibid.)
In moving for summary judgment, defendant permissibly "proceeded directly" to introducing evidence of nonbiased reasons for terminating plaintiff's employment. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 357.) The evidence showed plaintiff was fired because her performance issues and unprofessional behavior continued after defendant had issued a written disciplinary warning. Defendant met its initial burden of production, and the burden shifted to plaintiff.
"Pretext may be inferred from the timing of the discharge decision, the identity of the decisionmaker, or by the discharged employee's job performance before termination." (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224.) However, suspicious timing is not alone sufficient to raise a triable issue. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 353.) "In the classic situation where temporal proximity is a factor, an employee has worked for the same employer for several years, has a good or excellent performance record, and then, after engaging in some type of protected activity- disclosing a disability-is suddenly accused of serious performance problems, subjected to derogatory comments about the protected activity, and terminated. In those circumstances, temporal proximity, together with the other evidence, may be sufficient to establish pretext." (Id. at pp. 353-354.) Plaintiff failed to proffer any admissible evidence of pretext, and she thus failed to meet her own burden.
4. Fourth and Fifth Causes of Action
Plaintiff's fourth and fifth causes of action allege failure to accommodate a disability and failure to engage in the interactive process. These are separate claims, but "each necessarily implicates the other." (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) Under the FEHA, it is unlawful for an employer to fail to make reasonable accommodations for a known physical or mental disability of an employee. (Gov. Code, § 12940, subd. (m)(1).) "The elements of a failure to accommodate claim are '(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability.'" (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.) Employers have a concomitant duty to engage in a good faith interactive process with the disabled employee to explore ways to accommodate their disability. (Gov. Code, § 12940, subd. (n); Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424.)
Defendant's evidence included its policies for reasonably accommodating disability, which included timely and good faith engagement in an interactive process to determine "effective reasonable accommodations." The evidence further indicated the policy was followed when plaintiff asked for a modified work schedule. A face-to-face interactive process was conducted soon after plaintiff requested the accommodation, and the request was rejected in writing a few days later. Defendant's uncontroverted evidence included admissions by plaintiff that (1) she was unsure her proposed modified work schedule would accommodate her disability, and (2) she was proposing to "only come in if she feels well enough and if the stress is bearable."
Defendant cites Samper v. Providence St. Vincent Medical Center (9th Cir. 2012) 675 F.3d 1233 for the proposition that "[a]n accommodation that would allow [an employee] to 'simply ... miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law ... [is] not reasonable' on its face." (Id. at p. 1240.) We agree with the general principle "that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions." (Id. at p. 1237.) It is especially relevant here, where plaintiff's job required the face-to-face rendering of professional services to patients with scheduled appointments.
Defendant also correctly notes there can be no liability for failure to engage in the interactive process unless the employee shows a reasonable accommodation was possible. (Shirvanyan v. Los Angeles Community College Dist. (2020) 59 Cal.App.5th 82, 96-97; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 981.)
Defendant met its initial burden of production for the fourth and fifth causes of action. Plaintiff failed to proffer any admissible evidence and thus failed to meet her own burden. Therefore, defendant was entitled to have both causes of action summarily adjudicated in its favor.
5. Sixth Cause of Action
Plaintiff's sixth cause of action alleges failure to prevent discrimination, harassment, and retaliation under the FEHA. Government Code section 12940, subdivision (k), makes it unlawful for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." However, there is no liability for failure to prevent conduct prohibited by the FEHA "except where [such] actions took place and were not prevented." (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289; accord, Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597.) The sixth cause of action is derivative of plaintiff's other FEHA causes of action, and it fails for the same reasons discussed with respect to the third and seventh causes of action (see further discussion, post).
6. Seventh Cause of Action
Plaintiff's seventh cause of action alleges retaliation in violation of Government Code section 12940, subdivision (h). "[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Protected activities involve "engaging in opposition to any practices forbidden under FEHA or the filing of a complaint, testifying, or assisting in any proceeding under FEHA." (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 247; see Gov. Code, § 12940, subd. (h).)
"Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation '"'drops out of the picture,'"' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.)
Assuming plaintiff engaged in a protected activity under the FEHA, defendant's evidence showed a "legitimate, nonretaliatory reason for the adverse employment action." (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.) The burden then shifted to plaintiff to introduce evidence of retaliation, which she did not do. Defendant was therefore entitled to have the seventh cause of action summarily adjudicated in its favor.
7. Eighth Cause of Action
Plaintiff's eighth cause of action alleges wrongful termination in violation of public policy, which is commonly known as a Tameny claim. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.) In Tameny, the California Supreme Court held that "when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." (Id. at p. 170.) Such claims must be "carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions." (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095.) The policy upon which the claim is based "must involve a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer ...." (Id. at p. 1090.)
Plaintiff's theory of an underlying public policy violation was unclear to the trial court, and it is unclear to this court as well. Regardless, defendant satisfied its initial burden of production with evidence that plaintiff's employment was terminated for legal and nonretaliatory reasons. Plaintiff failed to proffer any admissible evidence to show a triable issue of material fact. Defendant was therefore entitled to summary adjudication.
8. Ninth Cause of Action
Plaintiff's ninth and final cause of action alleges defendant violated Business and Professions Code section 17200 et seq., also known as the unfair competition law or UCL. The claim is based on plaintiff's alleged reporting of OSHA violations and defendant's alleged retaliation and/or discrimination against her for that reason. "[W]hen the underlying legal claim fails, so too will a derivative UCL claim." (AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 950; accord, Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1185 ["When a statutory claim fails, a derivative UCL claim also fails"].) Plaintiff's UCL claim is derivative of her other retaliation and discrimination claims, so it necessarily fails based on defendant's entitlement to summary adjudication on those predicate causes of action. Therefore, the motion for summary judgment was properly granted.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: MEEHAN, J., SNAUFFER, J.