Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC343953, Alice E. Altoon, Judge.
Franklin L. Ferguson, Jr., for Plaintiff and Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, Brandyn E. Stedfield and Howard L. Magee for Defendant and Respondent.
WILLHITE, J.
Plaintiff James E. Wesley appeals from the grant of summary judgment on his complaint against his former employer, defendant Wells Fargo. Wesley alleged claims for retaliation and discrimination under the California Fair Employment and Housing Act (“FEHA,” Gov. Code, § 12940, et seq.) and four other employment-related claims. He contends that the trial court erred in granting summary judgment, because he raised triable issues of material fact as to each of his six causes of action. He also contends that the trial court erroneously denied his motions to amend his complaint and to compel further discovery. We affirm.
Throughout his opening brief on appeal, Wesley fails to cite to the appellate record in support of his factual assertions. (See Cal. Rules of Court, rule 8.204 (a)(1)(C) [“any reference to a matter in the record [must be supported by] a citation to the volume and page number of the record where the matter appears”].) In his Statement of Facts, he inappropriately refers to the page numbers of the exhibits he submitted in opposition to the summary judgment motion, and includes only general references to the appellate record: “CT 1349-1736” and “CT 1215-1342.” In his arguments relating to the summary judgment motion, he fails to provide any record citations whatsoever. Wells Fargo noted these omissions in its respondent’s brief. Wesley, however, filed no reply brief and thus did not correct his violations of appellate procedure. We decline to disregard his entire brief, but conclude, as to certain of his contentions, that he has forfeited the issue because of his failure to cite to the record.
I. Wesley’s Claims
Wells Fargo hired Wesley, who is African American, in 1994, and in 2000 promoted him to the position of Vice President Branch Manager at the Wilshire/Ardmore Branch. In March 2004, a thief stole approximately $100,000 from the vault at the Wilshire/Ardmore branch. Federal agents interviewed employees, including Wesley, about the theft. In May 2004, a frequent customer of the Wilshire/Ardmore branch, Won Charlie Yi, sent a series of wire transfers resulting in an approximately $2.6 million loss to Wells Fargo. In the aftermath, Wesley’s transaction approval limits were reduced from $1.5 million to $150,000.
In November 2004, following four unrelated incidents in which Wells Fargo considered Wesley’s interaction with three customers and two Wells Fargo employees to be unprofessional, Wesley was given a written “Final Warning,” and told that any further misconduct would result in termination. A few days later, he engaged a private investigator to interview his subordinate employees on company time regarding what he believed to be his discriminatory treatment by Wells Fargo. Wells Fargo considered his conduct to be a violation of company policy, and terminated him in December 2004.
Wesley sued, alleging six causes of action: (1) retaliation for protected activity (Gov. Code, § 12940, subd. (h)); (2) wrongful termination in violation of public policy (Lab. Code, §§ 1102.5, 2856, 432.2); (3) racial discrimination (Gov. Code, § 12940, subd. (a)); (4) breach of implied-in-fact employment contract; (5) breach of the implied covenant of good faith and fair dealing; and (6) defamation.
We summarize the essentials of Wesley’s factual allegations as relevant to our discussion of the summary judgment motion.
A. Retaliation
Wesley alleged that he was unfairly disciplined for certain alleged incidents of misconduct. Further, “[c]onsistent with his fiduciary responsibilities as a Vice President, [Wesley] hired a third party to interview the employees about these allegations. [His] objective was to present the findings of this investigation to Human Resources, part of the process of filing an internal grievance for the manner in which he had been treated.” According to Wesley, by “exercising his right to investigate adverse employment consequences [and] examples of disparate treatment on the basis of race, [he] engaged in” protected activity under the FEHA. He alleged that Wells Fargo retaliated against him because of that activity, and terminated him.
B. Wrongful Termination in Violation of Public Policy
Wesley alleged that in May 2004, the Wilshire/Ardmore branch processed a series of wire transfers by a customer, Won Charlie Yi, resulting in a loss of $2.6 million. Wesley was interviewed by an internal investigator, and later called “wire investigations” and spoke to Ross Watts, who agreed to request stops on the transfers – a decision that would ultimately lead to reporting the transfers to a governmental or law enforcement agency. The transfer stops, however, were made too late.
Wesley learned that a Market Supports Analyst, Joy Flores, had improperly approved release of the wire transfers. Wesley informed his supervisor, Javier Puentes. Wesley was interviewed about his information by Puentes and another supervisor, and was told that they would get back to him. They never did.
To support his claim of wrongful termination, Wesley alleged that he suffered adverse employment consequences based on “his having attempted to stop the wire transfers and his refusal to state anything other than the truth about the transactions which led to extensive financial loss.” Wesley claimed that he was acting in furtherance of the policies manifested in Labor Code sections 1102.5, 2856, and 432.2.
In relevant part, these statutes provide as follows: “No employer shall demand or require... any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment” (Lab. Code, § 432.2); “An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of noncompliance with a state or federal rule or regulation” (Lab. Code, § 1102.5, subd. (b)); and “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee” (Lab. Code, § 2856).
C. Discrimination
Wesley alleged that despite his qualifications, Wells Fargo discriminated against him on the basis of his race, and did not expose non-African-American employees to the adverse employment consequences he suffered. The discipline and adverse consequences included being suspected of complicity in a March 2004 theft from the Wilshire/Ardmore branch, having the entire $2.6 million from the Won Charlie Yi wire transfers loss attributed to his branch in a published loss report, and having his transaction approval limit reduced from $1.5 million to $150,000.
D. Breach of Implied-in-Fact Employment Contract, and Breach of the Implied Covenant of Good Faith and Fair Dealing
Wesley alleged that Wells Fargo’s policies and procedures created an implied-in-fact contract that he would not be disciplined or terminated except for good cause. Although Wesley fulfilled his duties under the contract, Wells Fargo breached it by disciplining and terminating him in violation of its practices and procedures. At the same time, Wells Fargo breached the implied covenant of good faith and fair dealing.
E. Defamation
Wesley alleged that “Wells Fargo made false statements about [him] to more than one person.” Although he did not specify what those statements were, he was apparently referring to his allegations that Wells Fargo attributed the entire $2.6 million loss from the Yi wire transfers to his branch, and that “[s]ubseqent statements, made under penalty of perjury and with respect to litigation relating to Mr. Yi’s activities, falsely attributed the losses to the responsibility of... Wesley.”
II. Evidence in Support of Summary Judgment
Wells Fargo moved for summary judgment, and produced the following evidence.
As Manager of the Wilshire/Ardmore branch, Wesley was responsible for operations, sales, supervision, and bank compliance. Under the Wells Fargo employment handbook, his employment was at will, and he executed an express at-will agreement when his employment with Wells Fargo began in July 1994.
In March 2004, a masked thief stole approximately $100,000 from the vault at the Wilshire/Ardmore branch. Federal agents later interviewed employees about the theft. The investigation did not implicate any Wells Fargo employee in the theft, and Wells Fargo took no action against Wesley as a result of the theft.
In May 2004, a frequent customer of the Wilshire/Ardmore branch, Won Charlie Yi, sent approximately $2.6 million in wire transfers that were eventually returned to the bank as overdraft losses. The FBI interviewed several Wells Fargo employees, including Wesley. Wesley was not held responsible for the loss, and Wells Fargo took no disciplinary action against him or any other employee. The total $2.6 million loss was initially allocated to the Wilshire/Ardmore branch for accounting purposes. Wells Fargo’s Non-ECD Operating Losses reports, which attributed the loss to the Wilshire/Ardmore branch, are circulated every month to interested persons within Wells Fargo – Bank Managers, the District Manager, the Market President, and the Regional President.
On May 12, 2004, Joy Flores, a Market Support Consultant for Wells Fargo, came to the Wilshire/Ardmore branch in connection with the investigation of the $2.6 million loss. She was searching for documents relating to the Yi wire transfers. Without inquiring whether Flores had been instructed to visit the branch, Wesley asked her to leave, thus hindering the investigation. Flores was offended and felt interrogated by Wesley. According to Flores’ deposition testimony, Wesley said, in the presence of other employees, that he thought she had something to do with the loss and that he did not trust her. Javier Puentes, then Community Banking President and Wesley’s supervisor, verbally counseled Wesley about the incident, because Wesley did not have the authority to request Flores to leave, and by doing so hindered Wells Fargo’s investigation into the Yi wire transfers.
On June 2, 2004, Jacinto Aneille Rhines, Jr., founder of Nature’s Hotline, a community activist organization that banked at the Wilshire/Ardmore branch, sent a letter to Wells Fargo complaining of his treatment by Wesley in a dispute over Wesley’s refusal to clear a check. Puentes spoke to Wesley about the incident, and Wesley admitted that he could have handled the situation more professionally. At Puentes’ request, Wesley agreed to send a letter of apology.
In October 2004, Puentes counseled Wesley regarding his deteriorating sales performance. Wesley did not dispute that his sales numbers were low.
Also in October 2004, Wells Fargo received letters from two bank customers, Jung Lim and Dong Young Yu, complaining about Wesley’s conduct in a dispute concerning Wesley’s refusal to honor a check. The customers said that in a heated argument, Wesley yelled at them, said “f*** you,” called them “dirty Asians,” and told them to “go to [their] home country.”
Later in October 2004, Wells Fargo received an internal complaint from its own Corporate Properties Management department. Sue Hester, a dispatcher for that department, received a telephone call from Wesley regarding a rodent problem at the Wilshire/Ardmore branch. According to Hester, when she tried to assist him, he “went ballistic and irately demanded that I send an exterminator to the branch within the next thirty minutes or else he was going to close down the f***ing branch. During the entire conversation, [his] temper was out of control and he repeatedly used profanity.” Puentes spoke to Wesley about the incident. Wesley admitted being agitated and using inappropriate language.
Based on the complaints concerning Wesley’s conduct, Puentes met with Wesley on November 16, 2004, and gave him a written Final Warning concerning his behavior. The Final Warning cited the Flores, Rhines, Lim/Yu, and Hester complaints, and warned: “You are expected to cease this type of behavior immediately and to sustain a professional demeanor. Any further incidents of unprofessionalism and/or disrespect toward others will result in termination of your employment.”
Nonetheless, on November 19, 2004, Michele Jensen, a Human Resources Consultant, received a complaint from Eva Castillo, the Service Manager at the Wilshire/Ardmore branch. Castillo told Jensen that Wesley had retained a private investigator to investigate his having been counseled, and had asked her and other employees to speak with his private investigator during working hours. As Castillo stated in her declaration in support of the summary judgment motion, Wesley approached her at work and asked her to speak to his private investigator in an office on the 16th floor of the building in which the Wilshire/Ardmore branch was located. Castillo refused unless instructed to do so by Wells Fargo. Castillo observed Wesley speak to several tellers, who left work to talk to his investigator.
Jensen contacted Wesley, who admitted that he had asked his employees to speak with his investigator. Wesley was placed on administrative leave from November 20 to December 3, 2004. Jensen went to the Wilshire/Ardmore branch and spoke with at least five employees who acknowledged that Wesley had asked them to meet with his investigator during working hours.
Wesley’s hiring a private investigator to interview employees violated Wells Fargo’s written policy regarding third party representation. That policy provides that Wells Fargo conducts “team member communications and problem solving, as well as performance counseling and corrective action and internal investigations, without third-party representation of any kind. Confidential information relating to employment should be discussed only between the team member and his or her supervisor, or another authorized representative of Wells Fargo.” Further, Wesley did not pursue Wells Fargo’s internal grievance procedures, which includes workplace dispute resolution.
On December 3, 2004, Wesley was terminated.
III. Evidence in Opposition to Summary Judgment
Wesley’s separate statement of material facts in opposition to the summary judgment motion is not directly responsive to much of Wells Fargo’s evidence, and our review is also hampered by his failure to cite to the appellate record in his opening brief. Nonetheless, from our independent review of his trial court submissions we glean the following evidence relevant to this appeal.
A. Retaliation
Wesley did not dispute that he hired his own private investigator to talk to his employees during work hours. He believed, rather, that he had a right to investigate, based on his responsibility to maintain the truth and eradicate discrimination at Wells Fargo.
Although Wesley’s complaint expressly alleged that his retaliation claim was based on retaliation for having initiated his own investigation, he now asserted a second basis: an e-mail he sent to Javier Puentes on October 21, 2004, complaining of discrimination.
After being counseled for his comments to Sue Hester of Corporate Properties, Wesley e-mailed Puentes on October 21, 2004, and complained that he was being disciplined for using the same type of language that others used. He added: “I do believe at this point that after all the issues that have arisen at the Wilshire/Ardmore branch that I have been targeted for less than desirable treatment because of my ethnic background.” Wesley met with Puentes a week later. Puentes asked whether Wesley was serious and whether he really wanted a response to the e-mail. Wesley said he did. After Puentes did not pass along Wesley’s complaint to Human Resources, Wesley hired a neutral investigator.
Wesley disputed whether hiring an investigator violated Wells Fargo’s policy regarding third party representation. He produced a declaration from a former Vice President/Human Resources Manager at Wells Fargo, Jean Phillips Willhite. She stated that during her tenure, Wells Fargo did not have a policy absolutely precluding the use of third party investigations into allegations against Wells Fargo employees. She described one incident in which she believed her internal investigation of an employee’s complaints was hindered by a superior. On her recommendation, the superior authorized the use of a third party to conduct the final investigation of the employee’s allegations.
B. Wrongful Termination
Wesley conceded that his cause of action for wrongful termination in violation of public policy was based on his allegation that he attempted to stop the wire transfers by Won Charlie Yi, and that he refused to state anything other than the truth about the wire transfers. Wesley asserted that such conduct was in furtherance of the public policies manifested in Labor Code sections 1102.5, 2856, and 432.2. He did not produce evidence to support the allegations of his complaint, and he did not articulate precisely how his alleged conduct served the policies underlying these statutes.
C. Discrimination
In support of his cause of action for racial discrimination, Wesley did not dispute that Wells Fargo received complaints regarding the Flores, Rhines, Lim/Yu, and Hester incidents. Rather, he disputed the complainants’ accounts of the incidents. Joy Flores’ notes of her conversation with Wesley did not state that he was rude or hostile. Jacinto Rhines yelled at a teller because his checks were held, and Wesley simply helped the teller deal with Rhines. Wesley dealt with Jung Lim and Dong Young Yu calmly, even though one of them yelled profanities and racial epithets and was restrained by a security guard. Wesley was not unprofessional in dealing with Sue Hester concerning his request for an exterminator, though he did state that he was not “working in here with these god damn rats running around.”
Wesley also relied on his own declaration. In the declaration, Wesley asserted that in September 2003, he was the only African-American finalist for the position of Branch Manager/Vice President of the Beverly Hill’s branch. The job was given to a white male, who told Wesley that he had worked for Wells Fargo for less than 18 months (Wesley was a nearly-nine-year employee) and had less significant responsibilities than Wesley. When Wesley inquired why he had not been given the job, Javier Puentes and another supervisor told him that they had chosen a “better match,” but they did not describe the particular qualities that created the “better match.” Wesley considered himself to be the more qualified candidate.
Wesley stated that after the $2.6 million loss from the Won Charlie Yi wire transfers, his transaction approval limits were significantly reduced. Although Puentes later told him that he would not be held accountable for the loss, his transaction approval limits were not restored, leaving Wesley unable to service longstanding customers who required approvals over his limits. In the following months, Puentes falsely accused him of unprofessional behavior “relative to two customer incidents and two interactions with Wells Fargo personnel.” According to Wesley, this treatment contrasted with that of similarly-situated non-African American Branch Managers.
Wesley related three incidents in which he believed white Branch Managers were treated differently. A subordinate of one such manager, Steve Edwards, stole more than $1 million, but the loss “was never published,” “unlike the $2.6 million that was attributed in writing to [the] Wilshire/Ardmore branch loss report.” Another white manager, Vince Caballero, “sustain[ed] a loss of $185,000.00, for which he was not held accountable,” and he was later promoted to District Manager. Yet another, Kevin Dunbar, “failed a government compliance audit, which is a potential ground for closing a branch [but] was later promoted to the position of District Licensed Bankers Director.” Wesley declared: “I noticed that I was treated less favorably than my white Branch Manger peers, particularly in light of the fact that (a) I had played absolutely no role in the financial losses sustained by Wells Fargo; (b) Javier Puentes falsely accused me of each of the four... infractions outlined in my November 12, 2004 ‘Final Warning’ written notice; and (c) Javier Puentes and Human Resources refused and/or failed to investigate my allegations of discrimination.”
D. Breach of Implied-In-Fact Contract and Covenant of Good Faith and Fair Dealing
In support of his claims for breach of an implied-in-fact contract and of the implied covenant of good faith and fair dealing, Wesley asserted that the at-will agreement he executed when he began his employment with Wells Fargo as a part-time employee did not govern the terms of his employment as a manager.
E. Defamation
Although Wesley’s description of his evidence supporting his defamation claim is not entirely clear, it appears that he was relying on the following allegedly defamatory statements. First, he cited to a Loss Processing Report for Wells Fargo’s Los Angeles Bank Division relating to the Yi wire transfers. One entry on the report listed a loss of $600,000 on May 3, 2004. In the “Employee Responsible” box of the report, Wesley’s name appears. Second, he cited Wells Fargo Non-ECD Operating Losses reports that attributed the entire loss from the Yi transfers to the Wilshire/Ardmore branch. Third he referred to deposition testimony in the present case of Charles Jones, Vice President/Manager of Wire Transfer Operations at Wells Fargo, that Wesley had approved a $300,000 wire transfer by Yi.
F. The Trial Court’s Ruling
The trial court granted Wells Fargo’s summary judgment motion. As to the retaliation claim, the court concluded that Wesley could not rely on his e-mail of October 22, 2004 as protected activity, because he did not allege it in his complaint as a basis for the retaliation claim. Rather, the alleged basis for the claim was his initiating his own investigation of his discipline. However, the court concluded that “[i]t is undisputed that plaintiff’s outside investigation was during work hours, on company time, and at an offsite location.... Plaintiff presents no credible authority that he had the right to conduct an investigation on company time at an offsite location without the company’s permission.”
As to Wesley’s claim for wrongful termination in violation of public policy, the court found that Wesley relied on his assertion that he attempted to stop the Yi wire transfers and refused to state anything other than the truth about the transactions. But he failed to show how the wire transfers involved fundamental public policy.
As to the discrimination claim, the court concluded that Wells Fargo presented legitimate, non-discriminatory reasons for its discipline of Wesley and his termination, and that Wesley failed to present evidence raising a triable issue as to those reasons.
Concerning the claim for breach of an implied-in-fact contract, the court found that even if Wesley was employed under an implied contract that he could be terminated only for good cause, Wells Fargo had shown such good cause, and Wesley failed to raise a triable issue on the point. Because the claim for breach of the implied covenant of good faith and fair dealing depended on the viability of the contract claim, the implied covenant failed as well.
Finally, the court found the defamation claim fatally defective, because it relied on internal reports subject to the conditional, common-interest privilege of Civil Code section 47, subdivision (c), and plaintiff produced no evidence to show that the reports were made with malice.
DISCUSSION
I. Summary Judgment
Wesley contends that the trial court erred in granting summary judgment. We disagree. “We review the grant or denial of summary judgment de novo. [Citations.] We apply the same analysis as the trial court. When the moving party is a defendant, we first identify the issues framed by the pleadings; next, we determine whether the defendant has shown the plaintiff has not established, and cannot reasonably expect to establish, a prima facie case; if so, we determine whether the plaintiff party has demonstrated the existence of a triable, material issue of fact as to the cause or causes of action at issue. [Citations.] Summary judgment is appropriate when no triable issue of material fact exists and the defendant is entitled to judgment as a matter of law. [Citations.]” (Bourgi v. West Covina Motors, Inc. (2008) 166 Cal.App.4th 1649, 1662.)
A. Retaliation
Government Code section 12940, subdivision (h), makes it unlawful for an employee to retaliate against an employee “because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” “[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. [Citations.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)
According to Wesley, his October 21, 2004 e-mail to Javier Puentes protesting racial discrimination was protected activity. In summary judgment proceedings, however, “[a] defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4; see also Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) Here, Wesley’s complaint alleged only one instance of protected activity in support of his retaliation claim: his “exercising his right to investigate adverse employment consequences [and] examples of disparate treatment on the basis of race.” He did not mention his October 2004 e-mail. Indeed, that e-mail is mentioned nowhere in his complaint. Thus, as the trial court correctly concluded, he cannot rely on it to resist summary judgment.
Wesley also argues that by hiring a private investigator to investigate his claim of discrimination, he “opposed” racial discrimination within the meaning of Government Code section 12940, subdivision (h), and that therefore he engaged in protected activity. Even if hiring an investigator is a legitimate act of opposition to alleged discrimination, the protection does not extend to the conduct for which Wesley was disciplined: abusing his authority, disrupting the workplace, and violating company policy by asking subordinate employees (several of whom complied), during work hours, to speak to his investigator at an off-site location in an attempt to support his personal claim of discrimination.
Wesley argues, in substance, that the declaration of Jean Philips Willhite created a triable issue whether his hiring an investigator violated Wells Fargo’s policy regarding third party representation. We disagree. Willhite’s declaration described one instance in which, on her recommendation as a Human Resources manager, a superior at Wells Fargo authorized the use of an outside investigator to prepare the final investigation of an employee’s complaint. In that instance, the investigator was not a third party representing the complaining employee, but an authorized agent of Wells Fargo conducting an internal investigation. In the present case, by contrast, the investigator was hired by Wesley to represent him. Wells Fargo did not authorize the hiring. Nothing in the Willhite declaration suggests that Wesley’s conduct was permissible under Wells Fargo policy. Indeed, on the evidence presented, Wells Fargo’s policy is clear: Wells Fargo conducts “team member communications and problem solving, as well as performance counseling and corrective action and internal investigations, without third-party representation of any kind. Confidential information relating to employment should be discussed only between the team member and his or her supervisor, or another authorized representative of Wells Fargo.”
Because the conduct for which Wesley was disciplined did not constitute protected activity, the trial court properly adjudicated his retaliation claim against him.
Even if Wesley had established a prima facie case of retaliation, his claim would fail. “Once an employee establishes a prima facie case [of retaliation], 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. [Citation.]” (Yanowitz, supra, 36 Cal.4th at p. 1042, internal quotation marks omitted.) As we discuss in connection with Wesley’s discrimination claim, Wells Fargo produced evidence of legitimate, non-discriminatory reasons for his termination, and Wesley failed to raise a triable issue as to those reasons.
B. Discrimination Claim
“The specific elements of a prima facie case [of discrimination] may vary depending on the particular facts. [Citations.] Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 (Guz).)
Here, Wesley contends that he raised a triable issue “whether adverse employment consequences [he] suffered were motivated by race [because he] presented ample evidence in which similarly situated persons, outside of his African-American class, were treated more favorably.” He does not, in his argument, cite to the specific evidence and explain how that evidence supports his prima facie case. He has therefore forfeited the claim. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu); City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16 (Lincoln).)
In any event, the only evidence of disparate treatment we find in the record is contained in his declaration. Wesley considered himself more qualified than the white applicant who was hired to be the manager of the Beverly Hills branch. Wesley also related three incidents in which he believed white Branch Managers were treated differently. A subordinate of one such manager stole more than $1 million, but the loss “was never published,” “unlike the $2.6 million that was attributed in writing to [the] Wilshire/Ardmore branch loss report.” Another white manager “sustain[ed] a loss of $185,000.00, for which he was not held accountable,” and he was later promoted to District Manager. Yet another “failed a government compliance audit, which is a potential ground for closing a branch [but] was later promoted to the position of District Licensed Bankers Director.” Wesley declared: “I noticed that I was treated less favorably than my white Branch Manger peers, particularly in light of the fact that (a) I had played absolutely no role in the financial losses sustained by Wells Fargo; (b) Javier Puentes falsely accused me of each of the four... infractions outlined in my November 12, 2004 ‘Final Warning’ written notice; and (c) Javier Puentes and Human Resources refused and/or failed to investigate my allegations of discrimination.”
Assuming for the sake of argument that Wesley’s declaration is sufficient to create a prima facie case of discriminatory motive, it is insufficient to rebut Wells Fargo’s evidence of a legitimate, nondiscriminatory motive for Wesley’s treatment. The evidence is undisputed that Wells Fargo received complaints about Wesley’s behavior in the Flores, Rhines, Lim/Yu, and Hester incidents. Based on these complaints, in November 2004 Wells Fargo gave Wesley a written Final Warning concerning his behavior. He was admonished: “You are expected to cease this type of behavior immediately and to sustain a professional demeanor. Any further incidents of unprofessionalism and/or disrespect toward others will result in termination of your employment.” Nonetheless, three days later, Wesley engaged his privately retained investigator to interview his subordinates during work hours in violation of Wells Fargo policy.
Wesley vaguely disputes the merits of the complaints made about him. He asserts that he “demonstrate[d] that each of [his] alleged performance issues is subject to disbelief, due to the fact that Puentes failed to follow Wells Fargo’s own procedures with respect to contemporaneous discipline, [and] failed to investigate... Wesley’s allegations of discrimination and presented inconsistent testimony.” But even if such a showing was made (Wesley fails to cite specific evidence), it does not raise a triable issue concerning the legitimate reasons Wesley was terminated. “Proof that the employer’s proffered reasons are unworthy of credence may ‘considerably assist’ a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions. [Citation.] Accordingly, the great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.)
Here, Wesley’s showing of disparate treatment is exceptionally weak, and Wells Fargo’s showing of legitimate reasons for its actions is exceptionally strong. Even assuming Wesley presented sufficient evidence for a prima facie showing, the trial court correctly concluded that Wesley’s showing is inadequate to raise a triable issue of purposeful racial discrimination. (Guz, supra, 24 Cal.4that p. 362.)
C. Wrongful Termination Claim
According to Wesley’s opening brief on appeal, the basis of his wrongful termination claim was that he was discharged in violation of public policy for one or all of the following: (1) reporting wire transfer fraud information to the FBI and local law enforcement (Lab. Code, § 1102.5, subd. (b)); (2) refusing to comply with Puentes’ unreasonable demand that he allow two customer complaints to remain uninvestigated (Lab. Code, § 2856); and (3) his forced submission to a lie detector test in connection with the FBI investigation of the $100,000 theft from the vault at the Wilshire/Ardmore branch (Lab. Code, § 432.2). On appeal, his sole argument in support of the wrongful termination claim is that he “has demonstrated evidence that Wells Fargo frustrated [his] attempt to take advantage of Wells Fargo’s anti-discrimination policies.... [His] direct requests to his supervisor and his Human Resources Consultant were not only unheeded, but specifically rejected.” He does not cite to any evidence. He also fails to make any rational argument, with citation to appropriate authorities. He has therefore forfeited the claim. (Nwosu, supra, 122 Cal.App.4th at p. 1246.)
Even if the claim were not forfeited, however, it is not persuasive. To sustain a wrongful termination claim, there must be a nexus between the protected activity – that is, the activity which serves a specific public policy – and the termination. (Turner v. Anheuser Busch, Inc. (1994) 7 Cal.4th 1238, 1258.) Here, as we have discussed, the evidence leaves no triable issue as to the reasons Wesley was terminated: the complaints about his intemperate behavior, and his conducting his own investigation that disrupted the workplace and violated company policy. Thus, Wesley failed to raise a triable issue as to whether Wells Fargo terminated him for any of the reasons he alleged in support of his claim for wrongful termination in violation of public policy.
D. Breach of Implied-In-Fact Contract
Wesley contends that he raised a triable issue whether his employment was at will. He argues that “a material issue of genuine fact existed, relative to Mr. Wesley’s contractual rights, which should have precluded the grant of summary judgment.” He does not discuss the ground on which the trial court adjudicated his breach of contract claim: that even if he could be terminated only for good cause, Wells Fargo had such cause. He has therefore forfeited the issue. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 785 (Badie).)
In any event, the trial court was correct. “Good cause” for termination is defined “as fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.” (Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17 Cal.4th 93, 107-108.)
Here, Wells Fargo’s evidence showed that in terminating Wesley, Wells Fargo acted in good faith on the basis of (1) complaints about his intemperate behavior with three customers and two employees, and (2) his violating company policy in the manner in which he conducted his personal investigation. Although Wesley complains about Wells Fargo’s handling of the Flores, Rhines, Yu/Lim and Hester complaints, none of his evidence is adequate to raise a triable dispute on the essential point: in each of the four incidents involved, Wells Fargo reasonably questioned his temperament and professionalism. Further, concerning the key event leading to his termination – his improper personal investigation – Wesley offers no dispute concerning Wells Fargo’s evidence that he asked subordinate employees to speak with his investigator during work hours. As we have noted, there is no triable dispute as to whether such conduct violated Wells Fargo’s policy.
Moreover, Wells Fargo gave notice to Wesley of the misconduct and an opportunity to respond. The November 12, 2004 written Final Warning listed the Rhines, Lim/Yu, Flores, and Hester incidents, and warned that any future violation would result in termination. Javier Puentes met with Wesley and gave him a chance to respond to the Final Warning. When Wesley’s improper investigation activities were later discovered, Michele Jensen, a Human Resources Consultant for Wells Fargo, contacted Wesley to investigate. Wesley did not dispute the allegations regarding the manner in which he conducted the investigation. Jensen also interviewed five subordinate employees who stated that Wesley had asked him to meet with his investigator on company time.
On this record, as the trial court found, there is no triable issue that Wells Fargo had good cause to terminate Wesley.
E. Breach of the Implied Covenant of Good Faith and Fair Dealing
In the employment context, a claim for breach of the implied covenant of good faith and fair dealing is solely contractual. Such a claim does not exist in tort. (Guz, supra, 24 Cal.4th at p. 352.) Thus, because the court properly adjudicated Wesley’s claim for breach of an implied- in-fact contract, the court also properly adjudicated his claim for breach of the implied covenant.
F. Defamation
To support his defamation claim in the trial court, Wesley relied on the following allegedly defamatory statements: (1) a Loss Processing Report for Wells Fargo’s Los Angeles Bank Division that listed him as “Employee Responsible” for a loss of $600,000 on May 3, 2004, part of the loss related to the Yi wire transfers; (2) Wells Fargo’s Non-ECD Operating Losses reports attributing the entire loss from the Yi transfers to the Wilshire/Ardmore branch; and (3) deposition testimony in this case by Charles Jones, Vice President/Manager of Wire Transfer Operations at Wells Fargo, that Wesley had approved a $300,000 wire transfer by Yi.
Obviously, Wesley could not base his defamation claim on deposition testimony by Charles Jones in this action. That testimony is absolutely privileged by the litigation privilege of Civil Code section 47, subdivision (b) (see Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955-956 (Jacob B.). On appeal, Wesley does not attempt to support the defamation claim by referring to it.
As stated in Jacob B., supra, 40 Cal.4th at pages 955-956: “The [litigation] privilege ‘applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.’ [Citations.] ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’ [Citation.] [¶]... To further [the] purposes [of the statute], the privilege has been broadly applied. It is absolute and applies regardless of malice. [Citations.] Indeed, the privilege extends even to civil actions based on perjury. [Citation.] ‘“The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.”’ [Citation.]”
With respect to the accounting reports on which he relied, Wesley does not discuss the trial court’s conclusion that the allegedly defamatory statements are covered by the qualified, common-interest privilege of Civil Code section 47, subdivision (c), and that he failed to produce evidence of malice. He has therefore forfeited any challenge to the trial court’s reasoning. (Badie, supra, 67 Cal.App.4th at p. 785.)
In the alternative, we conclude that the trial court was correct. In relevant part, Civil Code section 47, subdivision (c), provides a conditional privilege for any “communication, without malice, to a person interested therein, (1) by one who is also interested.” Here, the evidence is undisputed that for internal accounting purposes, Wells Fargo initially attributed the entire loss from the Yi wire transfers to the Wilshire/Ardmore branch. The accounting reports on which Wesley relies are standard reports circulated among interested Wells Fargo employees. Thus, the reports are covered by the privilege of section 47, subdivision (c). (See King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440 [“Parties in a business or contractual relationship have the requisite ‘common interest’ for the privilege to apply”].)
Further, Wesley failed to produce evidence sufficient to raise a triable issue of malice. For purposes of Civil Code section 47, “malice” is defined as “a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or injure the person.” (Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1557.) Wells Fargo produced evidence that the reports were circulated for internal accounting purposes. Wesley failed to present any evidence that the reports were circulated for some other, malicious reason. Thus, he failed to raise a triable issue as to whether he could overcome the conditional privilege of section 47, subdivision (c).
II. Denial of Leave to Amend
Wells Fargo’s summary judgment motion was scheduled to be heard on March 7, 2007. On March 5, 2007, Wesley filed an ex parte application for leave to amend the complaint to allege a cause of action for “tortious deceit,” or, in the alternative, to amend the exiting defamation claim to allege malice.
As explained by Wesley’s attorney at the hearing on the ex parte application, he sought to amend the complaint to allege facts concerning Wells Fargo’s conduct in discovery. According to counsel, following the deposition of Charles Jones, who was designated as Wells Fargo’s Person Most Knowledgeable regarding wire transfers, Wells Fargo agreed to reopen the deposition and to provide a supplemental declaration from Jones regarding various topics, including the Wilshire/Ardmore branch’s rules governing wire transfers. Wells Fargo failed to comply, although it did provide a declaration from Jones covering some of the requested topics.
Wesley’s attorney stated: “[W]ith respect to the key issue, the local policies on wire transfers that govern the Wilshire/Ardmore branch, he [Jones] says [in his declaration] that... there are no policies which govern the wire transactions. The problem with that representation is that it is a deliberately false representation either in October [when, according to Wesley’s counsel, Jones testified that such policies existed] or February [when Jones provided a declaration stating that there were no such local policies]. They can’t be reconciled. The motion to amend is based upon the fact that Mr. Jones’ misrepresentation goes back in time [when Wells Fargo] stated, ‘We have never held him accountable for the wire transfer losses.’ But Mr. Jones... in his deposition, in October says, ‘Well, James Wesley approved... the wire transactions.’ That specifically indicates that Mr. Wesley was responsible for... the loss that occurred. By holding onto the declaration from October 16th of 2006 to February 23rd, 2007, what [Wells Fargo has] done is... misrepresented a crucial piece of evidence. They said for four months that there is a policy on wire transfers, and then on the eve before the MSJ is to be determined they say, ‘Oh, by the way, there’s no policy that governs the procedure.’ At a minimum that is an abuse of the discovery process. But I believe, Your Honor, that even more so it represents a fundamental misrepresentation of facts in that the tortious deceit cause of action lies. You have the misrepresentation about local... policies.... You have scienter. Charles Jones knew at the time that he made the representation in his deposition that they weren’t true. You have intent to defraud. And then you have reliance.”
The trial court denied the application to amend, concluding that it would add an entirely new claim and was not timely. On appeal, Wesley contends that the court erred. He is incorrect. A trial court cannot grant leave to amend to add new claims or change the nature of existing claims by ex parte application. Rather, a formal noticed motion is required. (Code Civ. Proc., § 473, subd. (a)(1); see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) § 6:636, p. 6-160, & § 6:619, p. 6-156.) Because Wesley made no formal noticed motion, his request for leave to amend was properly denied.
Further, even if the court erred, Wesley fails to show prejudice. The proposed amendment, whether to add a new fraud claim or to allege malice as part of the existing defamation claim, was fatally defective. As best we can tell, the asserted basis of liability was alleged misrepresentations made by Charles Jones in his deposition and in a declaration in the instant lawsuit regarding whether the Wilshire/Ardmore branch had rules regarding wire transfers. Those statements, however, are absolutely privileged by the litigation privilege of Civil Code section 47, subdivision (b). (Jacob B., supra, 40 Cal.4th at pp. 955-956; see fn. 3, ante.) Thus, as a matter of law, Wells Fargo could not be liable under the proposed amendments, and Wesley was not entitled to amend. (Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1721.)
III. Denial of Motions to Compel
In a series of arguments comprising approximately 28 pages of his opening brief, Wesley contends that the trial court erred in denying various motions to compel additional discovery. His sole citation to the record in support of his various contentions is: “All references to Mr. Wesley’s Motion [sic] to Compel are found within the Clerk’s Transcript, pages 657 through 821.” By failing to provide adequate citations to the record, Wesley has forfeited his claims that the trial court’s rulings on his motions to compel were erroneous. (In re S.C. (2006) 138 Cal.App.4th 396, 406; Lincoln, supra, 102 Cal.App.4th at p. 1239, fn. 16.)
DISPOSITION
The judgment is affirmed. Wells Fargo shall recover its costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.