Opinion
B312977
03-02-2023
RODNEY DOUGLAS CARR, Plaintiff and Appellant, v. NOVO NORDISK, INC., et al., Defendants and Respondents.
Gary Rand &Suzanne E. Rand-Lewis and Suzanne E. Rand-Lewis for Plaintiff and Appellant. Morgan, Lewis & Bockius, Daryl S. Landy, Thomas M. Peterson, Kathryn T. McGuigan, and Nancy Nguyen for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC664703, Barbara M. Scheper, Judge. Affirmed.
Gary Rand &Suzanne E. Rand-Lewis and Suzanne E. Rand-Lewis for Plaintiff and Appellant.
Morgan, Lewis & Bockius, Daryl S. Landy, Thomas M. Peterson, Kathryn T. McGuigan, and Nancy Nguyen for Defendants and Respondents.
CHAVEZ, J.
Plaintiff and appellant, Rodney Douglas Carr (appellant), appeals from the summary judgment entered in favor of defendants and respondents, Novo Nordisk, Inc. (Novo Nordisk), Dan O'Neill (O'Neill), and Amanda Aguilos (Aguilos) in this action based on discrimination, harassment, and retaliation based on age, race, and disability. We affirm the judgment.
Novo Nordisk, O'Neill, and Aguilos are referred to collectively as respondents.
FACTUAL BACKGROUND
Appellant was employed by Novo Nordisk as a district business manager. Novo Nordisk sells products for the treatment of diabetes and obesity to physicians and other healthcare professionals. It sells these products through sales representatives, who are directed by district business managers, such as appellant.
Appellant's duties included the drafting of field coaching reports that described his observations on the performance of his sales representatives and his efforts to coach or discipline them. Appellant was supervised by O'Neill, a regional business manager. O'Neill noted in January 2016 that appellant was submitting field coaching reports that were nearly identical for a number of his sales representatives. O'Neill suspected appellant was fabricating the information in the reports and not accurately reporting on his management of his employees. O'Neill communicated this suspicion to a human resource (HR) representative, Aguilos.
After investigating appellant's work, Aguilos believed that appellant's reports did not reflect actual work. Novo Nordisk has policies that prohibit dishonesty, misstatements, or falsification in company business records. Based on his belief that appellant had violated these policies, O'Neill decided to terminate appellant's employment.
Appellant's employment was terminated effective March 22, 2016.
PROCEDURAL BACKGROUND
On June 12, 2017, appellant filed this action against Novo Nordisk, O'Neill, Aguilos, and Vincent Lamanna, alleging the following causes of action: (1) breach of express and implied contract (written and oral), (2) breach of the covenant of good faith and fair dealing, (3) wrongful termination in violation of public policy, (4) discrimination in violation of Government Code section 12900 et seq., (5) intentional infliction of emotional distress, (6) violation of Business &Professions Code section 17200, (7) violation of Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.), and (8) intentional misrepresentation (fraud), negligent misrepresentation and concealment.
Lamanna was a vice president who directed appellant's supervisor, O'Neill. The trial court dismissed the claims against Lamanna after granting his motion for summary adjudication or, in the alternative, a demurrer. Appellant did not appeal the dismissal of Lamanna.
Appellant claims that respondents discriminated against and harassed him when they terminated his employment because their decision was based on appellant's age, race, and disability. Respondents contend that appellant's employment was terminated for cause because he violated Novo Nordisk's policies by fabricating information in an e-mail and his field coaching reports.
Novo Nordisk, O'Neill, and Aguilos filed a motion for summary judgment or, in the alternative, summary adjudication, and their motion was heard on February 25, 2021. In his opposition papers, appellant did not file any evidence or make any evidentiary objections; instead, he argued respondents had not provided proper notice and requested a continuance under Code of Civil Procedure section 437c, subdivision (h).
The original hearing was January 26, 2021, but respondents filed an amended notice on December 8, 2020, that the hearing had been reschedule for February 25, 2021.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
After the hearing, the trial court took the matter under submission and then issued its order granting respondents' motion on February 26, 2021. The order noted that appellant "does not oppose the motion on the merits, has not submitted a responsive separate statement or any evidence." In addition, the order noted that appellant did not object to any of respondents' evidence.
The court granted summary adjudication of the first through seventh causes of action and the claim for punitive damages. On the eighth cause of action, the court exercised its discretion to treat respondents' motion as a motion for judgment on the pleadings and ruled that appellant failed to plead sufficient facts to state his theories of intentional misrepresentation, negligent misrepresentation, or concealment. The court then granted judgment on the pleadings as to appellant's eighth cause of action and dismissed the claims without leave to amend.
The court concluded its order by granting summary judgment in favor of Novo Nordisk, O'Neill, and Aguilos. Judgment was entered in respondents' favor on April 14, 2021. Appellant filed a timely notice of appeal from the judgment.
DISCUSSION
I. General legal principles and standard of review
We begin with an analysis of each cause of action in the order they were pleaded in appellant's complaint and end with an analysis of appellant's procedural arguments. Two standards of review apply.
First, we apply the de novo standard to review whether respondents established the right to entry of judgment. Summary judgment is granted when a moving party proves the right to entry of judgment as a matter of law. (§ 437c, subd. (c).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (§ 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar, supra, 25 Cal.4th at p. 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate. In order to obtain a summary judgment, "all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action .... [T]he defendant need not himself conclusively negate any such element ...." (Id. at p. 853.)
On appeal from a summary judgment, an appellate court makes "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) In doing so, we "consider[] all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
Second, we apply the abuse of discretion standard to procedural rulings. When a party requests a continuance under section 437c, subdivision (h), the determination to deny the request is reviewed for abuse of discretion. (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038.) As to evidentiary rulings, the California Supreme Court in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535, left open the question whether a trial court's ruling on objections to evidence supporting or opposing a summary judgment motion should be reviewed de novo or for an abuse of discretion. Appellate courts are divided on this issue. (Compare Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852 [applying abuse of discretion standard] with Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451 [de novo review].) The weight of authority, however, supports an abuse of discretion standard of review (see, e.g., Serri, at p. 852; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169), and we apply that standard here.
A trial court abuses its discretion only if its ruling is "'"so irrational or arbitrary that no reasonable person could agree with it."'" (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 154.) The appellant has the burden on appeal of establishing such an abuse of discretion. (Ibid.)
II. Contract causes of action
In his first cause of action for breach of contract and in his second cause of action for breach of the implied covenant of good faith and fair dealing, appellant pleads that he had an employment contract with Novo Nordisk. Appellant alleges that Novo Nordisk agreed that his employment would continue as long as he performed satisfactorily and that Novo Nordisk breached the contract by wrongfully terminating his employment.
The elements of a cause of action for breach of contract are "(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff." (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) "The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made." (Guz, supra, 24 Cal.4th at p. 349.)
An at-will employment agreement precludes the existence of an implied contract requiring good cause for termination. (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 630.) There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results. (Ibid.) The express term is controlling even if it is not contained in an integrated employment contract. (Ibid.) Thus, an at-will provision in an express written agreement, signed by the employee, cannot be overcome by proof of an implied contrary understanding. (Guz, supra, 24 Cal.4th at p. 340, fn. 10.)
Novo Nordisk provided evidence that appellant signed documents advising him that his employment was at-will and that he or Novo Nordisk could end the employment relationship at any time, for any reason, with or without cause. This evidence of an express contract that his employment was at-will precludes the existence of an implied contract or an implied covenant of good faith and fair dealing requiring good cause for termination. The evidence showed that appellant could not establish that an agreement or covenant existed that his employment would only be terminated for good cause.
Because Novo Nordisk met its initial burden of showing that there was an express at-will agreement, the burden shifted to appellant to present admissible evidence raising a triable issue of material fact as to the existence or enforceability of the express agreement. Appellant failed to identify evidence in his or respondents' papers that met his burden. Thus, there is no triable issue of fact with the evidence that appellant signed an express agreement that his employment was at-will.
Summary judgment was therefore properly granted as to the first and second causes of action because appellant failed to establish his claim that an implied contract or covenant existed regarding the termination of his employment.
III. Wrongful termination and FEHA causes of action
Appellant pleads in his third cause of action that the termination of his employment was wrongful because it violated fundamental public policies barring discrimination, harassment, and retaliation. Appellant's fourth cause of action alleges that the termination of his employment violated the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The following shows that (1) both causes of action are premised on the alleged violation of public policies identified in FEHA and (2) no triable dispute of fact exists that his employment was terminated for good cause, i.e., the falsification of business records.
A. Cause of action for wrongful termination is based solely on public policies identified in FEHA
"The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm." (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) The public policy involved may be supported by either constitutional or statutory provisions, must inure to the benefit of the public and not merely the interests of the individual, must have been articulated at the time of the discharge, and must be "'fundamental'" and "'substantial.'" (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 890.)
Appellant's pleadings failed to identify the specific constitutional or statutory provisions that were violated when his employment was terminated. Instead, appellant pleaded: "Defendant NOVO allowing Plaintiff to be subjected to discrimination, harassment and retaliation based upon his age, race, medical condition, perceived disability, associational disability, for having taken family leave and having complained about Defendant NOVO's wrongdoings was in violation of fundamental public policies of the State of California with respect to discrimination, harassment and retaliation. Said policies are stated in FEHA . . ., the Labor Code, Cal OSHA regulations, the California Constitution, and other criminal and common laws."
When compared to the conduct declared unlawful by FEHA, these allegations suggest the termination was based on public policies identified in FEHA because it is asserted that respondents engaged in conduct identified as unlawful under the subdivisions of Government Code section 12940. Subdivision (a) specifically prohibits an employer from discriminating against a person in compensation or in the terms, conditions, or privileges of employment on the basis of certain protected classes, including race, disability, medical condition, and age. Subdivision (h) states that it is unlawful to discriminate against a person because the person opposed practices prohibited by FEHA or because the person has filed a complaint. Subdivision (m)(2) provides that it is unlawful for an employer to retaliate or discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 [holding leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties].) Appellant's allegations are sufficient to plead a claim that the termination was wrongful for violating the policies against discrimination, harassment, and retaliation identified in these subdivisions of Government Code section 12940.
Appellant's reliance on FEHA as the basis for the wrongful termination claim is readily apparent when the third and fourth causes of action are compared. The fourth cause of action is for discrimination, harassment, and retaliation in violation of FEHA. There, appellant alleged he wanted to continue working for Novo Nordisk "until Defendants made it impossible for Plaintiff to do so by discriminating, harassing and retaliating against him based on his age, race, medical condition, perceived disability, associational disability, for having taken family leave and having complained about Defendant NOVO's wrongdoings." Appellant identifies the duties breached by Novo Nordisk as the termination of his employment based on his disability, race, age, requests for leave, and advocacy for people of color. These allegations identify the same wrongful conduct in the third cause of action, e.g., the termination of the appellant's employment due to discrimination, harassment, and retaliation based on age, race, medical condition, perceived disability, associational disability, taking family leave, and complaining about Novo Nordisk's wrongdoings.
Because appellant's claim for wrongful termination is based on the same allegations of ultimate fact in the claim for violation of FEHA, the wrongful termination claim is thus premised on the violations of the public policies identified in FEHA, i.e., the prohibitions barring discrimination, harassment, and retaliation based on appellant's age, race, medical condition, perceived disability, associational disability, for having taken family leave and having complained about Novo Nordisk's wrongdoings.
Appellant's pleadings, however, insufficiently identify any public policies in the other statutory schemes identified in his third cause of action. There are no allegations identifying the ultimate facts supporting a claim under any identified Labor Code section, Cal/OSHA regulation, California Constitution section, or other criminal and common laws. Further, there is no other cause of action in appellant's complaint that can be used to find that the third cause of action states a claim for the violation of public policies in the Labor Code, Cal/OSHA regulations, the California Constitution, or other criminal and common laws.
On summary judgment, the moving party "need not address a missing element or . . . respond to assertions which are unintelligible or make out no recognizable legal claim." (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1817.) Since the third cause of action does not plead a recognizable legal claim for the violation of public policies in the Labor Code, Cal/OSHA regulations, the California Constitution, or other criminal and common laws, the respondents needed to address solely the claim based on the public policies identified in FEHA to meet their burden on summary judgment.
B. Undisputed facts show causes of action for wrongful termination and violation of FEHA have no merit
Both the third and fourth causes of action, therefore, are based on showing respondents violated FEHA when it terminated appellant's employment.
When wrongful termination and FEHA claims are premised on the same prohibitions set forth in FEHA, the wrongful termination claim fails if the FEHA claim fails. (See Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 229 [affirming summary judgment of a FEHA and wrongful termination claim because there was no evidence that the nondiscriminatory business reason for terminating the employment was pretextual].) When FEHA is used as the source of public policy, the wrongful termination claim is premised on showing that FEHA was violated and is not established if FEHA was not violated. (See, e.g., Jennings v. Marralle (1994) 8 Cal.4th 121, 134-135 [reasoning that FEHA prohibition against employment discrimination based on age did not create a common law tort action for age discrimination against employers who were expressly exempted from FEHA coverage because they employed fewer than five employees].)
California courts follow a modified version of the burden shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 in resolving FEHA employment claims on summary judgment. The specific elements of a prima facie case vary depending on the particular claim and facts.
In a retaliation claim, for example, "[i]n the first stage, the '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.) If the employee successfully establishes these elements and thereby shows a prima facie case exists, the burden shifts to the employer to provide evidence that there was a legitimate, nonretaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) If the employer produces evidence showing a legitimate reason for the adverse employment action, 'the presumption of retaliation "'"drops out of the picture,"'"' (Yanowitz, supra, at p. 1042), and the burden shifts back to the employee to provide 'substantial responsive evidence' that the employer's proffered reasons were untrue or pretextual (Martin v. Lockheed Missiles &Space Co. (1994) 29 Cal.App.4th 1718, 1735)." (Loggins v. Kaiser Permanante Internat. (2007) 151 Cal.App.4th 1102, 1109.)
This burden-shifting approach applies also to a discrimination claim. Discrimination requires evidence that the employee was a member of a protected class, had satisfactory job performance, suffered an adverse employment action, and that similarly situated individuals outside the protected class were treated more favorably. (Guz, supra, 24 Cal.4th at p. 355.) After the employee makes this prima facie case, the burden shifts to the employer to set forth competent, admissible evidence of its reasons, unrelated to bias, that it had a legitimate business reason for the claimed adverse employment action. (Id. at p. 357.)
Here, Novo Nordisk provided evidence of a legitimate reason for the termination of appellant's employment. Its undisputed evidence showed that appellant's employment was terminated after an investigation revealed that appellant had violated Novo Nordisk's policies by falsifying documents. This evidence shows that Novo Nordisk had a legitimate reason for its decision to terminate appellant's employment. No discriminatory, harassing, or retaliatory animus, therefore, is apparent in this evidence.
The burden then shifted to appellant to offer substantial evidence that Novo Nordisk's reasons were untrue or pretextual. He failed to do so. There is no evidence in the record that appellant's employment was wrongfully terminated in violation of the public policies identified in FEHA.
The undisputed facts, therefore, show that appellant did not show a triable dispute of fact existed with the evidence that Novo Nordisk had a legitimate reason for its decision to terminate his employment. This demonstrates that appellant has no evidence that FEHA was violated and, since his wrongful termination claim is premised on the violation of the public policies in FEHA, both his wrongful termination and his violation of FEHA claims have no merit. Summary judgment was therefore properly granted as to the third and fourth causes of action.
IV. Intentional infliction of emotional distress claim
Appellant claims in his fifth cause of action that respondents' termination of his employment was intended to cause emotional distress to him. "The elements of the tort of intentional infliction of emotional distress are: '"(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."'" (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) "A defendant's conduct is 'outrageous' when it is so '"'extreme as to exceed all bounds of that usually tolerated in a civilized community.'"'" (Hughes v. Pair (2009) 46 Cal.4th 1035,10501051.)
As discussed above, respondents' evidence showed that appellant's employment was terminated after an investigation revealed that appellant had violated Novo Nordisk's policies by falsifying documents. This evidence of a legitimate reason for the termination of appellant's employment shows that appellant cannot establish that the termination was extreme and outrageous conduct; instead, it was a decision made after an investigation showed appellant had violated Novo Nordisk's policies against the falsification of records.
This shifted the burden to appellant to offer substantial evidence that Novo Nordisk's act of terminating his employment was so "'"'extreme as to exceed all bounds of that usually tolerated in a civilized community.'"'" (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) He did not do so. There is no evidence in the record that terminating appellant's employment after an investigation showed he was falsifying records was extreme and outrageous. Summary judgment was therefore properly granted as to the fifth cause of action.
V. Violation of Business and Professions Code section 17200 claim
Appellant claims in his sixth cause of action that "Defendant NOVO's acts as specifically stated herein, constitute unfair business practices which are illegal under California Business &Professions Code Section 17200 ...." The acts identified by appellant in his pleadings are the termination of his employment.
Business and Professions Code section 17200 prohibits unlawful and fraudulent business acts and practices. "'"The 'unlawful' practices prohibited by . . . section 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made."'" (South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 880.) Appellant does not allege with particularity any act that was forbidden by law, fraudulent, or unfair other than his claim that this employment was wrongfully terminated. When the complaint is read as a whole, this cause of action is a claim that the termination of his employment was an unfair business practice.
Respondents' evidence showed that appellant's employment was terminated after an investigation revealed that appellant had violated Novo Nordisk's policies by falsifying documents regarding the employees he supervised. This evidence of a legitimate reason for the termination of appellant's employment shows that appellant cannot establish that the termination violated Business and Professions Code section 17200 because it is not unlawful, fraudulent, or unfair to terminate an employee who falsified work records.
This shifted the burden to appellant to offer substantial evidence that Novo Nordisk's act of terminating his employment was an unlawful, fraudulent, or unfair act that violated Business and Professions Code section 17200. He did not do so. Summary judgment was therefore properly granted as to the sixth cause of action.
VI. Consumers Legal Remedy Act claim
Appellant claims in his seventh cause of action that he was a consumer of respondents' products and that the respondents breached their duties to consumers. The pleadings, however, allege claims based on the termination of appellant's employment and not his purchase of any products from respondents.
The trial court found that this cause of action failed because the evidence showed no transactions involving the sale of goods or services to consumers. Appellant does not identify any error with the trial court's order in his opening brief.
On review of summary judgment, appellant has the burden of showing error, even if appellant did not bear the burden in the trial court. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and point out the triable issues the appellant claims are present by citation to the record and any supporting authority. (Ibid.) In other words, review is limited to issues which have been adequately raised and briefed. (Ibid.)
Appellant did not adequately raise or brief any issues in the trial court's order on the seventh cause of action. Thus, appellant has not met his burden on appeal to demonstrate error in the order finding the seventh cause of action fails, and review is limited to the issues he adequately raised and briefed concerning other orders of the trial court.
VII. Fraud, negligent misrepresentation, concealment claim
Appellant claims in his eighth cause of action that Novo Nordisk made representations that were false and intended to induce appellant to act "as described herein The pleadings are legal conclusions that repeat the elements of a claim for intentional misrepresentation and do not identify any material facts that were concealed.
The trial court exercised its discretion and treated the motion for summary judgment as a motion for judgment on the pleadings It found the cause of action insufficiently pleaded because it did not plead any facts identifying a false statement or the particularity needed to state any claim based on the torts of deceit.
A. Trial court properly exercised discretion in treating motion for summary judgment as motion for judgment on the pleadings
A defendant's motion for summary judgment necessarily includes a test of the sufficiency of the complaint and may be considered, in legal effect, as a motion for judgment on the pleadings. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 (Bostrom).) When the court finds the complaint fails to state facts sufficient to constitute a cause of action as a matter of law, it need not reach the question whether plaintiff's opposition to the summary judgment motion raises a triable issue of fact. (Ibid.)
The eighth cause of action has the label "Intentional Misrepresentation [Fraud], Negligent Misrepresentation and Concealment." (Boldface omitted.) These are three separate torts of deceit, and different elements must be pleaded for each.
The first cause of action for intentional misrepresentation must include the following: (1) a representation, usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation; and (5) damage resulting from that justifiable reliance. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73.) The second claim for negligent misrepresentation must include the following: (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. (B.L.M. v. Sabo &Deitsch (1997) 55 Cal.App.4th 823, 834.) The third cause of action for fraudulent concealment has the following elements: (1) the defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Lovejoy v. AT&T Corp. (2004) 119 Cal.App.4th 151, 157-158.)
These causes of action are torts of deceit and the facts constituting each element must be alleged with particularity; the claims cannot be saved by referring to the policy favoring liberal construction of pleadings. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Since the claims must be pleaded with particularity, the causes of action based on misrepresentations must allege facts showing how, when, where, to whom, and by what means the misrepresentations were tendered. (Stansfield v. Starkey, supra, 220 Cal.App.3d at p. 73.)
Appellant did not plead the particular allegations needed to state the elements of the torts of deceit identified in the caption of his eighth cause of action. He does not identify a representation or when it was made by a specified individual. He does not identify a material fact that any respondent had a duty to disclose to him. The cause of action, therefore, fails to state facts sufficient to state any of the identified torts of deceit.
B. No error in denying leave to amend
When summary judgment is granted on the ground that the complaint is legally insufficient, and it appears from the materials submitted in opposition to the motion that the plaintiff could state a cause of action, the trial court should give the plaintiff an opportunity to amend the complaint before entry of judgment. (Bostrom, supra, 35 Cal.App.4th at p. 1663.) "The plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) This showing may be made for the first time in the appellate court. (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)
In his opposition to the motion for summary judgment and in his opening brief, appellant did not show how he can amend to state any cause of action. This is a case based on allegations that appellant's employment was wrongfully terminated because he suffered discrimination, harassment, and retaliation. There is no basis in the complaint to find that an intentional misrepresentation, negligent misrepresentation, or fraudulent misrepresentation claim can be pleaded based on allegations that the appellant suffered discrimination, harassment, and retaliation based on his age, race, disability, or medical condition.
In his opening brief, appellant argues that he can state a fraud claim by alleging that respondents made false promises that he would be provided compensation, that his work environment valued diversity and his values, that he would be treated with respect, and that his employment would continue as long as he performed his job duties. He does not identify how he can plead with particularity each element of a fraud or concealment claim based on these promises. For example, he does not identify who made these promises, how they were made, when they were made, where they were made, or by what means they were tendered.
Further, appellant's arguments concern promises concerning his compensation and the duration of his employment. The failure to perform these promises would be a breach of an employment contract, e.g., breach of obligations to pay the appellant for his work or to employ appellant for a specific term or until a specified condition occurred. Conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551.) An omission to perform a contractual obligation is never a tort, unless that omission is also an omission of a legal duty. (Ibid.) In his first cause of action, appellant pleaded that he had a contract regarding the conditions of his employment. The failure to perform those obligations, therefore, is not a tort and does not show that he can amend this cause of action to state a claim for fraud, negligent misrepresentation, or concealment.
The judgment on the pleadings, therefore, was properly granted by the trial court. Further, it was not an abuse of discretion to decline to grant leave to amend because appellant does not meet their burden of proving that an amendment would cure the defect.
The above shows that respondents were entitled to summary judgment of the first, second, third, fourth, fifth, sixth, and seventh causes of action and a judgment on the pleadings of the eighth cause of action.
VIII. Procedural issues
Appellant argues that the trial court abused its discretion with its decisions on the procedures for summary judgment. We disagree.
A. No error by hearing the motion for summary judgment on February 25, 2021
Appellant argues that the trial court erred by hearing respondents' motion for summary judgment on February 25, 2021, because respondents did not provide proper notice. Under section 437c, subdivision (a)(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. Section 437c, subdivision (a)(2), increases this 75-day period of notice by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. Further, if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.
Respondents' motion initially was set for January 26, 2021 When appellant objected that respondents had not complied with section 437c, subdivision (a)(2), respondents filed an amended notice for a hearing on February 25, 2021. Respondents sent the amended notice to three e-mail addresses.
Appellant argues that this electronic service did not comply with section 1010.6, former subdivision (a)(2)(A)(i) because appellant had not agreed to electronic service of papers. Former subdivision (a)(2)(A)(i) stated that, for cases filed on or before December 31, 2018, electronic service is not authorized unless a party has agreed to access electronic service or "the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)." Former subdivision (d) authorized a trial court, by local rule, to require electronic filing and service in civil actions. California Rules of Court, rule 2.251(c), also authorizes a court to require parties to serve documents by local rule or court order, as provided in section 1010.6.
This case was filed on June 12, 2017. However, the trial court found that the Los Angeles Superior Court had adopted mandatory e-filing through General Order 2020-GEN-023-00 regarding electronic service during the COVID-19 pandemic. The trial court found that respondents' use of electronic service was consistent with section 1010.6, former subdivision (d), California Rules of Court, rule 2.251(c), and the Los Angeles Superior Court's local requirements for mandatory electronic filing and its general order regarding electronic service during the COVID-19 pandemic. Appellant does not show that the trial court abused its discretion when it allowed electronic service of the papers.
Appellant also argues that General Order 2020-GEN-023-00 conflicted with section 1010.6, former subdivision (a)(2)(A)(i) because the order allows electronic service without agreement. Appellant, however, did not address the phrase "the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)" at the end of section 1010.6, former subdivision (a)(2)(A)(i) or California Rules of Court, rule 2.251(c), both of which authorized the Los Angeles Superior Court to allow electronic service of papers. Since the Legislature authorized the Los Angeles Superior Court to allow electronic service of papers, there is no conflict between section 1010.6 and the general order.
Appellant also does not show that he suffered any prejudice from the electronic service. Respondents served the papers on November 11, 2020, and December 8, 2020. Using the later date, appellant had at least 80 days to prepare his opposition papers. Appellant does not identify any evidence in the record that establishes he did not have an opportunity to prepare an opposition or that he was prejudiced by the manner of service.
Appellant, thus, has not shown that the trial court abused its discretion when it found that appellant had sufficient notice of respondents' motion for summary judgment.
B. No error in the denial of appellant's request for a continuance
Appellant argues that the trial court erred by denying his request for a continuance of the hearing. Under section 437c, subdivision (h), if it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.
The party's supporting declarations must show: "(1) 'Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion'; (2) 'The specific reasons why such evidence cannot be presented at the present time'; (3) 'An estimate of the time necessary to obtain such evidence'; and (4) 'The specific steps or procedures the opposing party intends to utilize to obtain such evidence.'" (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532, italics omitted.)
"'The purpose of the affidavit required by . . . section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion.'" (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397.) "It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show 'facts essential to justify opposition may exist.'" (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548 [affirming trial court that found declaration insufficient because there was no statement that suggests what facts might exist to support the opposition.)
Additionally, a trial court may properly deny continuance where the party had adequate time to secure additional evidence and offered no justification for failing to do so earlier. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) Section 437c, subdivision (h) "cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist." (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715-716.)
Appellant's attorney submitted a declaration stating that on November 30, 2020, "Plaintiff noticed the depositions of Defendants, Defendant Novo's PMK, in house counsel, and other key percipient witnesses, all essential witnesses to Plaintiff's opposition." She attached a notice of taking deposition as exhibit A identifying the witnesses as including O'Neill, Aguilos, Lynn Sullivan, and Scott Ross.
Counsel's declaration did not include facts justifying the failure to secure these depositions earlier. Appellant commenced this action by filing his complaint on June 12, 2017. No facts were supplied to justify the three-year delay in seeking the depositions of O'Neill, appellant's direct supervisor who decided to terminate appellant's employment, or Aguilos, who did the HR investigation that resulted in the termination of appellant's employment. Thus, the trial court did not abuse its discretion by denying the continuance as appellant knew that these depositions could yield information vital to proving his claims, he had adequate time to secure the depositions of these witnesses in the three years between the filing of the complaint and the filing of respondents' motion, and he offered no justification for failing to seek these depositions earlier.
Appellant argued there were grounds to allow him to obtain additional discovery because respondents had prevented him from obtaining facts essential to his opposition. First, appellant argued respondents have violated section 437c, subdivision (i), by unreasonably failing to allow discovery to be conducted. Section 437c, subdivision (i) states "If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication." (Italics added.)
There is nothing in the record showing appellant raised this issue with the trial court. More importantly, the trial court denied and did not grant a continuance of the summary judgment hearing to allow additional discovery. Since the condition in the antecedent clause had not been satisfied, i.e., that the trial court had continued the summary judgment hearing to allow specified discovery, there were no grounds to apply the consequent and deny respondents' motion for the failure to allow the specified discovery to be conducted. Section 437c, subdivision (i), therefore, did not apply and appellant fails to show any abuse of discretion.
Second, appellant argued that when he tried to seek the deposition of Novo Nordisk's person most qualified on the documents concerning the contentions in his complaint, respondents refused, and the trial court abused its discretion by continuing the motion repeatedly and then denying it. However, the record indicates that the trial court continued the hearing on April 22, 2019, April 29, 2019, September 16, 2019, October 21, 2019, and December 5, 2019, so that appellant could review the documents produced by Novo Nordisk and so the parties could confer on the deposition topics and schedule the depositions. There is nothing in the record showing that the trial court abused its discretion by continuing the hearing so that the parties could informally resolve the discovery disputes.
A review of the notice of deposition reveals appellant identified 51 topics for the persons most qualified and 49 document requests. Respondents served written objections to the topics on the grounds that they were unduly burdensome and would impermissibly violate the attorney-client and work product privileges.
The trial court then denied the motion without prejudice on February 5, 2020. The transcript for the hearing indicates that the trial court's grounds for denying the motion were concerns with the document production and the topics needed. There is no abuse of discretion in denying a motion to compel the deposition under section 2025.450, when the responding party serves valid objections or the meet and confer declaration is insufficient.
Also, appellant fails to demonstrate that he acted diligently to obtain the depositions and documents at issue in his motion. Nor does he show that he renewed or refiled the motion, which had been denied without prejudice.
In addition to the motion to compel, the trial court also set a status conference regarding discovery for the February 5, 2020 hearing. The record indicates that the trial court was effectively attempting to manage the discovery disputes between the parties by continuing hearings on discovery, holding status conferences, and ordering the parties to file joint status reports on their discovery progress. This record indicates that the trial court repeatedly noted problems with appellant and his obligations to identify the documents and witnesses he intended to use to prove his case at trial. During this effort to manage the discovery disputes, the trial court found that appellant failed to meet and confer properly, made procedurally improper requests for discovery, and made unsubstantiated accusations that respondents were withholding documents and acting fraudulently.
At a hearing where respondents' motion to continue trial was granted, the trial court found that "Plaintiff ha[d] thwarted Defendants' efforts to obtain necessary discovery to defend against Plaintiff's claims" by refusing to appear for his own deposition. At the February 5, 2020 hearing where it denied appellant's motion to compel the deposition of the person most qualified, the trial court noted appellant's refusal to identify witnesses and opined: "This is one of the most egregious refusals to participate in discovery that I have seen in 20 years on the bench."
Thus, the record shows that appellant had refused to participate in discovery and identify the facts he would need to meet his burden on summary judgment. This coupled with the above-mentioned lack of diligence in conducting his own discovery shows that the trial court did not abuse its discretion when it denied appellant's request for a continuance of the hearing on respondents' motion for summary judgment. Appellant had three years to secure the depositions of witnesses he knew would be needed for trial, e.g., O'Neill and Aguilos, and appellant failed to justify the failure to take these depositions diligently.
C. No error in the trial court's refusal to reject respondents' motion due to defects in the separate statement of facts
Appellant argues that the trial court should have denied respondents' motion because their separate statement was defective. Appellant identifies this defect as the failure to identify the location of evidence by page and line numbers.
In their separate statement, respondents cited evidence in deposition transcripts by page and line numbers. But when citing evidence in declarations, respondents used the common legal practice of identifying the numbered paragraph in the declaration, e.g., "Aguilos Decl., paragraph 13." This does not comply with California Rules of Court, rule 3.1350(d)(3), which states, "Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers."
In Truong v. Glasser (2009) 181 Cal.App.4th 102, the Court of Appeal considered the plaintiffs' argument that a motion for summary judgment should have been denied because the defendant's separate statement of material facts was procedurally defective. The court rejected the argument because the trial court's power to deny summary judgment on the basis of failure to comply with California Rules of Court, rule 3.1350 is discretionary, not mandatory. (Glasser, at p. 118.) Further, since the plaintiffs did not explain how any alleged deficiency in the separate statement impaired the plaintiffs' ability to marshal evidence and show that material facts were in dispute, the trial court did not abuse its discretion by declining to reject the summary judgment motion. (See Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1020 [no abuse of discretion when plaintiff did not explain how the alleged deficiency in the defendant's separate statement impaired his ability to demonstrate that material facts were in dispute].)
Appellant failed to provide any specific explanation in his briefing as to how the alleged deficiency in respondents' separate statement impaired his ability to show material facts were in dispute.
There is no showing that the trial court abused its discretion when it declined to reject the entire motion based on the defects in the separate statement.
D. No error in admitting facts in the declarations of O'Neill and Aguilos
Appellant argues that the trial court incorrectly admitted facts showing respondents lacked discriminatory animus because the evidence was in the declarations of O'Neill and Aguilos and it concerned their own state of mind. Both declared that they had no discriminatory animus towards appellant.
Section 437c, subdivision (e) allows a court, in its discretion, to deny summary judgment "if a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof." The abuse of discretion standard of review applies to a trial court's decision to grant summary judgment based upon state of mind evidence of a witness. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 900.)
First, appellant fails to show that he preserved this claim by making the necessary evidentiary objections to these declarations in the trial court. Second, he fails to show that the trial court abused its discretion by admitting the facts in these declarations. Third, he shows no prejudice because the evidence that respondents terminated his employment for falsifying business records was sufficient to meet their burden on summary judgment.
Finally, in wrongful termination claims, "[t]he decisionmaker's motive and state of mind will almost always be in dispute ...." (Horn v. Cushman &Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 817.) Since appellant claimed that respondents had wrongfully terminated his employment based on discriminatory animus, the trial court did not abuse its discretion under section 437c, subdivision (e), by considering the facts offered by O'Neill and Aguilos on their state of mind, i.e., lack of discriminatory animus.
Thus, there was no abuse of discretion in admitting this evidence.
DISPOSITION
We affirm the trial court's judgment. Respondents are awarded costs of appeal.
We concur: LUI, P. J., HOFFSTADT, J.