Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super Ct. No. CGC06-457865
Reardon, J.
After granting the motion for summary judgment filed by respondent City and County of San Francisco (city), the trial court entered judgment against appellant Willie Adams on his discrimination action. Adams appeals, contending that (1) he established a prima facie case of racial, disability and sexual orientation discrimination; and (2) he presented a viable claim for intentional infliction of emotional distress. We affirm the judgment.
I. FACTS
A. Background
In 1986, appellant Willie Adams—an African-American male—was serving as a reserve police officer in the San Jose Police Department. In 1987, he was arrested and charged with contributing to the delinquency of a minor. (Former Pen. Code, § 272 [as amended by Stats. 1979, ch. 373, § 237, p. 1349].) He pled guilty to a lesser charge of furnishing alcohol to a minor. (See, e.g., former Bus. & Prof. Code, § 25658 [as amended by Stats. 1984, ch. 403, § 1, pp. 1753-1754] [misdemeanor offense].) After his conviction, Adams was terminated from his reserve police officer position in December 1988.
In 1989, Adams worked as a counselor at a youth group home. In 1991, he was arrested and charged in Santa Clara County with two counts of oral copulation with a minor and one count of sodomy with a minor, alleged to have occurred in 1989. (Former Pen. Code, §§ 286, subd. (b)(1) [as amended by Stats. 1988, ch. 1243, § 6, pp. 4133-4135], 288a, subd. (b)(1) [as amended by Stats. 1988, ch. 1243, § 7, pp. 4135-4137].) Ultimately, he pled guilty to three counts of sexual battery. (Former Pen. Code, § 243.4, subd. (a) [as amended by Stats. 1987, ch. 828, § 12.5, pp. 2580-2581].) He was placed on probation for five years and ordered to serve a year in jail as a condition of probation. Among the conditions of probation was that he not own or possess firearms and that he not be employed in security, investigation or other occupation in which he would have unsupervised contact with minors. In February 2003, this felony conviction was reduced to a misdemeanor.
Meanwhile, in 2001, Adams began volunteering with the San Francisco Patrol Special Police in the city’s Mission District. The patrol special police is a private security force recognized under the San Francisco City Charter. (See S.F. City Charter, § 4.127 (as amended Mar. 2004).) The city charter empowers the city’s police commission (Commission) to appoint patrol special police officers (patrol specials) and designate them as owners of certain geographic beats or territories within city boundaries. These beat owners provide private security services to city businesses and residences. (San Francisco Police Commission Rules and Procedures for Patrol Special Officers and their Assistants, §§ 1.03(A), 2.01(I), 3.01(A) [1999 version] (hereafter Rules).) The beat owners may hire individuals known as assistant patrol specials to work directly for them. (Rules, §§ 1.04, 2.01(J).) The patrol specials must submit a written request identifying an assistant patrol special applicant to the chief of police, who may appoint qualified persons. (Rules, §§ 3.01(B), 3.09.) Assistant patrol special qualifications include being of good moral character and completion of a favorable background investigation. (Rules, § 3.04(B), (G).)
The Commission adopted rules and procedures governing the patrol specials and their assistant patrol special employees. It authorized the San Francisco Police Department (SFPD) and the chief of police to implement and administer the rules. (Rules, § 1.01.) It authorized the SFPD’s deputy chief of the Field Operations Bureau to administer the patrol special program. The deputy chief is also authorized to appoint a patrol special liaison officer to run the day-to-day operations of the patrol special program. (Rules, § 1.07(A).) A key task of the liaison officer is to assist candidates for assistant patrol specials through the appointment process.
In his volunteer work with the patrol special police, Adams was supervised by Patrol Special Police Officer and beat owner Jane Warner. He was candid about his homosexuality while he did this volunteer work. Late in 2001, Adams was diagnosed as HIV positive.
In 2003, Sergeant Thomas Martin of the SFPD served as the department’s liaison with the patrol special police. In August 2003, he received a request that the SFPD appoint Adams to serve as an assistant patrol special officer, to work directly for a patrol special. Sergeant Martin arranged for a private background report on Adams. That report contained criminal, employment and other history information about Adams during the previous seven-year period, but did not include a report of his prior convictions.
Adams submitted a personal history as part of the application process. In it, he reported that he resigned from the San Jose Police Reserves. He stated that he had never been fired from employment. He denied having been arrested or convicted of any crime, or having been placed on probation as an adult. He certified that the statements he made in the report were true and complete. Adams acknowledged that a misstatement of material fact would subject him to disqualification.
In October 2003, Sergeant Martin also conducted a computer check and checked Adams’s fingerprints to verify certain information. He concluded that Adams met the minimum qualifications for the assistant patrol special position. (See Rules, § 3.04.) He forwarded all the documents he received to Deputy Chief Gregory Suhr, who was then in charge of the Field Operations Bureau. Sergeant Martin suggested that Deputy Chief Suhr forward the application to the SFPD’s background investigations unit for review and recommendation.
When Deputy Chief Suhr received the results of that background check in November 2003, he learned of Adams’s 1987 and 1991 convictions, of his termination from the San Jose Police Reserves, and of the misrepresentations on the employment and criminal history aspects of his personal history statement. Deputy Chief Suhr agreed that Adams did not meet the Commission’s requirements for appointment as an assistant patrol special. (See Rules, § 3.04.) Then-Chief of Police Alex Fagan concurred with this recommendation and Adams’s request for appointment was formally denied.
B. 2005 Application for Appointment
In 2005, Sergeant Craig Tom of the SFPD took over as department liaison with the patrol special police. He met Adams briefly at a Mission Station meeting. Adams had again applied for an employment position as an assistant patrol special. Sergeant Tom reviewed the application packet, which included a letter from Officer Warner requesting Adams’s appointment as well as an incomplete and unsigned personal history from Adams.
Sergeant Tom contacted Adams about the incomplete responses in his personal history and Adams retrieved the application packet so that he could correct the personal history. A few weeks later, Adams returned a revised and signed personal history that was incompletely dated. Sergeant Tom also arranged for some documents missing from the application packet to be returned by Adams.
In his 2005 personal history, Adams stated that he was asked to resign from the San Jose Police Reserves. He also stated that he had never been fired or asked to resign from any employment. He disclosed the fact of his 1991 conviction, which he noted had been expunged. He did not state the nature of the 1991 conviction or offer any information about the 1987 conviction. When asked if he had ever been placed on probation, his response appears to have been negative. Adams signed this personal history, certifying that the statements in it were true, but he did not completely date it. He acknowledged that misstatements of material fact would subject him to disqualification.
Adams underwent a series of background checks. In June 2005, Adams, Officer Warner and Sergeant Tom met to discuss his application. According to Adams, he advised Sergeant Tom of two criminal convictions that had been expunged from his record more than 20 years earlier. He believed that Sergeant Tom agreed to conduct a preliminary investigation to determine Adams’s employment eligibility status. A fingerprint check was also run.
In July 2005, Officer Warner sent a written memorandum to the commander of the Mission Police District advising him that Adams would be joining the Mission beat after he spoke with Sergeant Tom and was formally sworn in. From August 2005 through May 2006, Adams filed repeated complaints with the Commission, alleging that he was being discriminated against because of his race, his sexual orientation, and his HIV status.
During this period, Sergeant Tom obtained a copy of Adams’s earlier application from SFPD files, to ensure that there were no inconsistencies between the two applications. In so doing, he learned of Adams’s arrests and the 1987 and 1991 convictions. This information was inconsistent with Adams’s 2003 personal history statement that he had no arrests or convictions. He found out that Adams’s 1991 conviction had been reduced to a misdemeanor. Sergeant Tom also observed that in his 2003 personal history, Adams had misrepresented his reason for leaving the San Jose Police Reserves. Sergeant Tom learned that Adams had been terminated after his 1987 conviction.
Sergeant Tom received the results of Adams’s criminal history check in late August 2005. He forwarded these results and the rest of Adams’s application packet to Acting Deputy Chief David Shinn for his review. Sergeant Tom noted that Adams had been denied a similar position in 2003 because of his 1987 felony conviction for sexual battery. He explained that Adams had obtained an order reducing this conviction to a misdemeanor since his earlier application. In his cover memorandum, Sergeant Tom opined that the conviction posed difficulties to an appointment, but asked that SFPD’s background investigations unit make the final determination after their review and recommendation.
In October 2005, Adams wrote to a member of the Commission, complaining that the hiring process appeared to be discriminatory and unfair. In November 2005, Adams learned from Sergeant Tom that he had yet to undergo a SFPD background check. By early 2006, this background check had not yet been completed, in part because the background investigations unit was understaffed. This led to delays in the review and recommendation process. In part to deal with this staffing issue, the SFPD established a set of written procedures governing the appointment process for assistant patrol specials in January 2006. After that time, the liaison officer—not the background investigations unit—conducted the background checks for assistant patrol special applicants.
In January 2006, Adams contacted Sergeant Tom for an update on his SFPD background check. By early February 2006, Deputy Chief Shinn assigned Sergeant Tom to conduct an independent background check on Adams. In March and April 2006, Adams complained to another member of the Commission that he was bring treated unfairly with regard to his application. Officer Warner sent supporting e-mails to the Commissioner. In May 2006, Adams’s counsel sent a letter to Sergeant Tom and Officer Warner demanding that his application be immediately approved and that he be sworn in with the patrol special police.
Based on his 1987 and 1991 convictions and his termination from the San Jose Police Reserves, Sergeant Tom concluded that Adams did not meet Commission requirements for appointment as an assistant patrol special. In June 2006, Police Chief Heather J. Fong and Deputy Chief Shinn agreed that Adams did not meet those requirements. That month, Deputy Chief Shinn advised Adams and Officer Warner that Adams’s application was denied based on his failure to meet the minimum qualifications for the position.
C. Lawsuit
In May 2006, Adams filed an administrative charge of discrimination against the SFPD with the Department of Fair Employment and Housing (DFEH). He alleged that the SFPD denied him employment because of his race, his sexual orientation and his HIV status. In June 2006, the DFEH issued a right to sue letter, authorizing Adams to bring a civil action.
In November 2006, Adams filed suit against the city, alleging causes of action for racial discrimination, discrimination based on physical disability (HIV), sexual orientation discrimination, and intentional infliction of emotional distress. He alleged that the city had violated the Fair Employment and Housing Act (FEHA) by failing to hire him for a discriminatory reason. Adams sought $5 million in general damages, punitive damages, an injunction requiring his appointment, interest and attorney fees.
In his complaint, Adams alleged that in August 2005, Sergeant Tom gave verbal approval to Officer Warner of Adams’s preliminary background check. He alleged that Officer Warner was also told that Deputy Chief Shinn had confirmed this approval. Adams confirmed this information with Sergeant Tom. He believed that his application had been forwarded to Police Chief Fong for formal signature. Expecting to be hired, Adams gave notice to his then-current employer and resigned from his position.
Adams alleged that when he spoke with Sergeant Tom about his application again during a January 2006 cell phone call, Sergeant Tom told him that his situation was similar to that of Rosa Parks, that “after you will come others that will benefit from your situation.” Adams was uncertain whether this comment referred to his African-American heritage, his homosexuality or both. Its implications humiliated and distressed Adams, but he feared that speaking out about it might adversely affect his application, so he did not tell Sergeant Tom of his discomfort. Adams also alleged that Sergeant Tom initially advised Officer Warner that his application was rejected on moral turpitude grounds. When he asked for clarification about this decision, he alleged that the city retracted the moral turpitude assertion.
Adams also made specific allegations about the application process at patrol special police. He alleged that no African-American applicant had been hired to work for the patrol special police for more than seven years. He alleged that African-American applicants were subjected to a more rigorous application process than non-African-Americans. Adams also alleged that the last homosexual applicant hired by the patrol special police was a Caucasian former SFPD officer hired in April 2004. Finally, he alleged that two Caucasian heterosexual males had been hired by the patrol special police during the time that Adams’s application was pending and that neither of them were required to submit to a SFPD background check. In January 2007, the city filed its answer to Adams’s unverified complaint.
Adams was deposed in April 2007. He testified that when he asked why his application process had become so difficult, Sergeant Tom said that he should consider his situation as similar to that of Rosa Parks. Adams interpreted this remark as a reference to his race. He also testified that he divulged his homosexuality and his HIV status to Sergeant Tom at their initial interview.
In a November 2007 declaration, Sergeant Tom denied that Adams had ever disclosed his homosexuality or his HIV status. He testified that he first learned of those facts when he received a copy of Adams’s June 2006 administrative filing with the DFEH. He also denied having made any reference to Adams about Rosa Parks, Adams’s race, his HIV status or his homosexuality. In a deposition, Sergeant Tom testified that Adams never told him about his arrests or his criminal offenses—the sergeant first learned of them when reviewing Adams’s application. He also denied ever telling Officer Warner that Deputy Chief Shinn had approved Adams’s background check.
In December 2007, the city moved for summary judgment or, in the alternative, summary adjudication. In February 2008, Adams filed his opposition to the motion for summary judgment, supported by his declaration. He declared that when he met with Sergeant Tom and Officer Warner about his 2005 application, he advised the liaison officer of his criminal record and the expungement of his 1991 conviction. Sergeant Tom told them that Adams’s criminal record should not pose a problem. Adams declared that he fully disclosed his termination from the San Jose Police Reserves on his personal history.
Officer Warner also filed a declaration in opposition to the city’s motion for summary judgment, supporting Adams’s factual allegations about his conversations with Sergeant Tom. The city filed objections to some of the statements made in the Adams and Warner declarations. It also objected to aspects of Adams’s opposition to its motion for summary judgment.
In March 2008, the trial court heard the motion for summary judgment. It found inter alia that Adams had lied on his 2003 personal history about his employment and criminal history, knowing that any misstatements would subject him to disqualification. It found that Adams based his racial discrimination claim on unsupported allegations of different treatment and on an allegation that Sergeant Tom made an isolated comment about Rosa Parks that Adams interpreted as referring to his race. It found that Adams’s disability discrimination claim was based on his claim that he informed Sergeant Tom of his HIV positive status, but that he offered no evidence that he was denied the assistant patrol special position on that basis. It found that Adams’s sexual orientation cause of action was based on his allegation that he divulged his homosexuality to Sergeant Tom at an initial interview.
The trial court granted the city’s motion, finding inter alia that (1) Adams lacked standing to sue the city under FEHA because the city is not the employer of an assistant patrol special; (2) he failed to establish a prima facie case of any alleged form of discrimination; and (3) the city was immune from liability on his claim of intentional infliction of emotional distress for Chief Fong’s discretionary decision not to appoint him. Judgment for the city on all causes of action was entered.
II. PRIMA FACIE CASE
A. Standard of Review
The trial court found that Adams did not establish a prima facie case of any of his FEHA discrimination claims. Adams urges us to find that the trial court erred. He argues that he established a prima facie case of discrimination based on race, disability and sexual orientation. He reasons that triable issues of material fact exist about what constitutes a prima facie case in this matter.
On appeal from an order granting summary judgment, we conduct an independent review of the facts before the trial court. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz); Lockheed Litigation Cases (2004)115 Cal.App.4th 558, 563; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 469-470.) We review that court’s ruling, not its rationale. (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (1999) 72 Cal.App.4th 366, 373.) In effect, we assume the trial court’s role and apply the same standards that governed the trial court’s determination of the motion. (Kelly v. First Astri Corp., supra, 72 Cal.App.4th at p. 470.) We review the ruling underlying the order granting summary judgment under the standard of review applicable to that ruling. (Lockheed Litigation Cases, supra, 115 Cal.App.4th at p. 563.)
On appeal, our review is limited to the facts contained in the documents presented in the trial court. We accept as true those facts alleged in Adams’s affidavits and exercise our independent judgment about the legal effect of the undisputed facts disclosed by the parties’ papers. (See Federal Deposit Ins. Corp. v. Superior Court (1997) 54 Cal.App.4th 337, 345.) We consider all evidence set forth in the motion for summary judgment and the opposition to it, except any evidence to which objections have been made and sustained. On each cause of action, we determine whether the city—as the party seeking summary judgment—has conclusively negated a necessary element of Adams’s case or has demonstrated that under no hypothesis is there a material issue of fact that warrants trial, such that the city is entitled to summary judgment as a matter of law. (See Guz, supra, 24 Cal.4th at p. 334; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612; see also Code Civ. Proc., § 437c, subd. (c).)
The city filed objections to some of Adams’s evidence. In its order granting summary judgment, the trial court included a statement of undisputed facts it relied on to make its decision. As the challenged evidence is absent from that statement of undisputed facts, we assume that the trial court sustained the city’s objections to it.
On appeal from a grant of summary judgment, we determine anew whether there is a triable issue of material fact or whether the moving party is entitled to summary judgment as a matter of law. (See Code Civ. Proc., § 437c, subd. (c); Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844; see also Villa v. McFerren (1995) 35 Cal.App.4th 733, 741; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) If the moving party meets its burden of showing a complete defense to the action, then the burden of proof shifts to the opposing party to show that a triable issue of material fact exists as to that cause of action or defense. (See Code Civ. Proc., § 437c, subd. (p)(2); Jambazian v. Borden, supra, 25 Cal.App.4th at pp. 843-844.)
Neither the moving party nor the opposing party may rely on the allegations or denials in the pleadings, but must set forth specific facts showing that a triable issue of material fact exists. (See Code Civ. Proc., § 437c, subd. (p)(1), (2); Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805 (Horn); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 590.) A triable issue of material fact is not raised by speculation or mere possibility. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.) Supporting and opposing affidavits or declarations must be based on personal knowledge, must set forth admissible evidence and must make an affirmative showing that the affiant is competent to testify on the matters stated in them. (See 437c, subd. (d); Stratton v. First Nat. Life Ins. Co. (1989)210 Cal.App.3d 1071, 1083.)
B. Law of Hiring Discrimination
Adams contends that the trial court erred in granting summary judgment on his causes of action for failure to hire him for a discriminatory reason. He alleged in his complaint that the decision to terminate him was based on race, sexual orientation and disability. (See Gov. Code, § 12940, subd. (a).) In California, the FEHA makes it unlawful for an employer to refuse to hire an applicant for these reasons. (Ibid.; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148 (Sada).) Although Adams alleged causes of action for discrimination in violation of state law, the similar purposes and objectives of the FEHA and title VII of the federal Civil Rights Act of 1964 allow California courts to look to pertinent federal precedent when applying our state law. (Guz, supra, 24 Cal.4th at p. 354; Sada, supra, 56 Cal.App.4th at p. 148; see 42 U.S.C. § 2000e-2(a)(1); Gov. Code, § 12940, subd. (a).)
California has adopted the three-stage burden-shifting approach established by the United States Supreme Court for trying discrimination claims based on disparate treatment claims. (Guz, supra, 24 Cal.4th at p. 354; Horn, supra, 72 Cal.App.4th at pp. 805-807; see Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-260 (Burdine); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 (McDonnell).) Adams’s initial burden is to prove a prima facie case of discrimination by a preponderance of evidence. (Sada, supra, 56 Cal.App.4th at p. 151; see Burdine, supra, 450 U.S. at pp. 252-253; McDonnell, supra, 411 U.S. at p. 802; Guz, supra, 24 Cal.4th at p. 354; Horn, supra, 72 Cal.App.4th at p. 806.) In a failure-to-hire context, a plaintiff may establish a prima facie case of discrimination by showing evidence that (1) he or she belongs to a protected class; (2) he or she applied for and was qualified for a position for which the employer was seeking applicants; (3) despite his or her qualifications, the plaintiff was rejected; and (4) after that rejection, the employer continued to seek applications from persons with the plaintiff’s qualifications. (Sada, supra, 56 Cal.App.4th at p. 149; see Burdine, supra, 450 U.S. at pp. 253-254 fn. 6, 258; McDonnell, supra, 411 U.S. at p. 802; Guz, supra, 24 Cal.4th at p. 355.) The adequacy of Adams’s prima facie case is initially a question of law for the trial court to resolve. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201-202.) On appeal, we consider anew whether he has established this prima facie case. (See Guz, supra, 24 Cal.4th at p. 334; Horn, supra, 72 Cal.App.4th at p. 807.)
We find that Adams did not establish a prima facie case of discrimination on any of the bases that he alleged—race, sexual orientation or disability. While he belongs to various protected classes and he was not hired, he cannot establish that he was qualified for the position. The city has adopted specific, objective requirements for job applicants, including that he or she be of good moral character and that he or she complete a favorable background investigation. (Rules, § 3.04(B), (G); see Sada, supra, 56 Cal.App.4th at p. 151.) He did not meet either of those requirements, for several reasons.
First, Adams’s prior employment history was not satisfactory. In both applications, Adams reported that he resigned or was asked to resign from the San Jose Police Reserves. He also stated that he had never been fired or asked to resign from employment. This was inaccurate, as Adams had been terminated from the reserve police after his misdemeanor conviction for furnishing alcohol to a minor. Prior termination from a similar type of employment constitutes proper grounds for rejecting a job applicant. Those grounds are only heightened when the prior termination was not disclosed and when the termination itself was grounded in criminal activity. (Rules, § 3.04(G).)
Second, Adams’s criminal history—particularly his lack of candor about his term of probation—was unsatisfactory. In his 2003 application, Adams denied having been arrested or convicted of any crime, or having been placed on probation as an adult. In his 2005 application, he disclosed the fact of his 1991 felony conviction and stated that it had been expunged. However, Adams twice denied having ever been placed on probation. This was inaccurate, as he had been placed on five years’ probation after his 1991 conviction. The fact of his prior term of probation was another sufficient, lawful basis to support the finding that he did not meet the minimum qualifications for the position. That basis is even stronger when we consider that the conditions of that term of probation precluded Adams from owning or possessing firearms and banned him from employment in the security field. (Rules, § 3.04(G).)
Third, Adams did not display good moral character when he repeatedly lied on his application for employment as a member of a private police patrol. Those inaccurate statements were material, as they hid employment and criminal history information that had a direct bearing on his qualifications to serve as an assistant patrol special. In both of his applications, Adams certified that the statements he made in the report were true and acknowledged that any misstatements of material fact would subject him to disqualification. (Rules, § 3.04(B).) Thus, the city could properly find that Adams did not meet the minimum qualifications for the assistant patrol special.
The fact that Adams failed to disclose key facts about his employment and criminal history, and the relevance of the omitted material to a proper evaluation of his fitness for the position sought make it clear that Adams did not meet the minimum qualifications for employment as an assistant patrol special. (See Rules, § 3.04(B), (G).) As such, he did not establish a prima facie case for any of his several causes of action for discrimination. (Sada, supra, 56 Cal.App.4th at p. 149; Burdine, supra, 450 U.S. at pp. 253-254 fn. 6, 258; McDonnell, supra, 411 U.S. at p. 802; Guz, supra, 24 Cal.4th at p. 355.) The trial court properly granted summary judgment to the city on the first three causes of action that Adams alleged.
III. EMOTIONAL DISTRESS
Adams also contends that he presented a viable cause of action for intentional infliction of emotional distress. The trial court found the city immune from any emotional distress claim, as Adams had not identified any authorizing statute as the basis for this cause of action.
We agree with the trial court’s assessment. In California, governmental tort liability depends on an authorizing enactment or statute. (Gov. Code, §§ 815, subd. (a), 815.6; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) In order to prevail on his tort claim for intentional infliction of emotional distress, Adams must show that the city violated a mandatory statutory or regulatory duty. The specific statutory or regulatory duty must be identified in the complaint. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638; Searcy v. Hemet Unified School Dist., supra, 177 Cal.App.3d at p. 802; see Gov. Code, § 815.6.) Adams’s complaint did not identify any statutory duty.
Nevertheless, Adams argues that the city is liable on a respondeat superior theory because the chief of police recommended that he not be hired. A city cannot be held liable for an employee’s acts or omissions, if the challenged decision was a discretionary one. (Gov. Code, § 818.4; see Inland Empire Health Plan v. Superior Court (2003) 108 Cal.App.4th 588, 592-593.) In this matter, the chief of police’s decision whether or not to recommend the hiring of an applicant for assistant patrol special is discretionary, not mandatory. (Rules, §§ 2.01(Q), 3.01(B).) When the employee is immune from liability, the city is also immune. Thus, the city is immune from liability on Adams’s intentional infliction of emotional distress cause of action. (Gov. Code, § 815.2, subd. (b).)
In his reply brief, Adams also challenges the trial court’s order granting summary judgment on procedural grounds. (See Code Civ. Proc., § 437c, subd. (g).) It is improper to raise an issue for the first time on appeal in a reply brief, as this deprives the respondent of any opportunity to respond to it. (See Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 329, fn. 5; see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, pp. 790-791.) Thus, we will not address this issue.
Summary judgment is appropriate if the moving and opposition papers show that there is no triable issue of material fact and the moving party is entitled to judgment as a mistake of law. (Code Civ. Proc., § 437c, subd. (c).) The trial court properly granted the city’s motion for summary judgment on all causes of action.
In light of this conclusion on the merits, we need not determine the correctness of the trial court’s alternative ground for its summary judgment—Adams’s lack of standing to bring the underlying action against the city.
The judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.