Opinion
C081800
11-16-2017
KAREN MORGAN, Plaintiff and Appellant, v. SACRAMENTO HEART AND VASCULAR MEDICAL ASSOCIATES, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2014-00160597-CU-WT-GDS)
Plaintiff and appellant Karen Morgan sued her employer defendant and respondent Sacramento Heart and Vascular Medical Associates (hereafter SH&V), inter alia, for claims arising from her employment and termination. She appeals following the trial court's entry of judgment in favor of SH&V following a grant of summary judgment. She contends on appeal that the trial court erred in excluding evidence on procedural grounds, in awarding summary judgment, in denying her motion for reconsideration of that order, in imposing sanctions on her counsel, and in sustaining a demurrer. We reverse the trial court's order imposing sanctions on Morgan's counsel, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Morgan was employed by SH&V from November 2005 until she went on medical leave in May 2011. She returned from leave on June 25, 2012, and remained employed until she was terminated on July 23, 2012, for failing to appear for work when she instead took a prepaid trip.
On March 20, 2014, Morgan filed suit against SH&V and two of its employees. Prior to any defendant's answering or demurring to that complaint, Morgan filed an amended complaint against only SH&V and one of its employees (a "lead" coworker). In that amended complaint, Morgan asserted causes of action for violations of California Constitution, article I, sections 1 and 8; Government Code section 12900 et seq. (California's Fair Employment and Housing Act; hereafter FEHA); Government Code section 12940, subdivisions (m) and (n); Business and Professions Code section 17200 et seq.; and Labor Code section 1198.5, subdivision (e); and for wrongful termination. Both defendants successfully demurred to the amended complaint with respect to the causes of action for violations of California Constitution, article I, section 1 (the right to privacy) and Labor Code section 1198.5, subdivision (e). This demurrer is discussed in further detail in part 4.0 of the Discussion, post.
Morgan then filed her second amended complaint, and the trial court sustained in part the defendants' demurrer to that complaint, including the only cause of action alleged against the individual defendant. Thus, in the operative complaint at the time SH&V filed its motion for summary judgment, Morgan alleged against SH&V causes of action for violations of Government Code section 12940, subdivisions (a) (disability discrimination), (m) (failure to provide reasonable accommodation), and (n) (failure to engage in the interactive process) and Business and Professions Code section 17200 et seq. (unfair practices), and for wrongful termination.
SH&V moved for summary judgment, or in the alternative, for summary adjudication. It argued Morgan could not establish the requisite causal connection between her race or alleged disability and an adverse employment activity to establish a violation of Government Code section 12940, subdivision (a), and that there was no triable issue of material fact with respect to Morgan's claims that SH&V failed to provide her reasonable accommodation (Gov. Code, § 12940, subd. (m)), failed to engage in the interactive process (Gov. Code, § 12940, subd. (n)), wrongfully terminated her in violation of public policy, or engaged in unfair practices (Bus. & Prof., § 17200 et seq.). Morgan opposed the motion for summary judgment, arguing SH&V discriminated against her on the basis of race and disability, failed to consider reasonable accommodation for her, and failed to engage in a timely, good faith interactive process.
A copy of SH&V's separate statement of undisputed facts in support of its motion for summary judgment is not contained in the record on appeal.
The trial court issued a tentative ruling granting summary judgment to SH&V. The trial court indicated it would award summary adjudication on the merits as to each of Morgan's causes of action, thereby entitling SH&V to summary judgment. Additionally, it sustained SH&V's evidentiary objection No. 22, inter alia, which sought to exclude "[a]ll 'evidence' " in Morgan's memorandum of points and authorities that was not presented in a separate statement for failure to comply with Code of Civil Procedure section 437c, subdivision (b)(3) and California Rules of Court, rule 3.1350(f). Morgan requested oral argument, but withdrew her request, and no parties appeared for a hearing on the motion for summary judgment. The trial court entered its order affirming its tentative ruling. Notice of entry of the order was served on November 12, 2015.
Undesignated statutory references are to the Code of Civil Procedure.
Further rule references are to the California Rules of Court unless otherwise indicated.
On November 16, 2015, Morgan moved for reconsideration of the trial court's order granting SH&V's motion for summary judgment. She claimed her motion was based on new facts and circumstances challenging the trial court's ruling excluding evidence cited in her memorandum of points and authorities on procedural grounds. The only new facts and circumstances Morgan presented, however, were that "counsel has never listed separate facts in a separate statement of undisputed, disputed and/or additional facts relating to the third prong of the burden-shifting scheme [applicable in SH&V's motion for summary judgment] in any opposition to motions for summary judgment in other cases," she last filed an opposition to a motion for summary judgment in an employment law case in 2013, and she has prevailed on most of her summary judgment motions in such cases. She also attempted to distinguish the present matter from the case relied upon by SH&V in its reply brief seeking exclusion of the facts not included in a separate statement—Batarse v. Service Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820 (Batarse)—and claimed she "could not expect the Court would follow [that] precedent."
Following the filing of Morgan's motion for reconsideration, on December 15, 2015, SH&V filed its motion for sanctions against Morgan pursuant to section 128.7, and also sought an award of expenses and attorney fees. SH&V argued Morgan's motion was frivolous, untimely, and did not present new or different facts, circumstances, or law. It claimed Morgan's argument that counsel did not know the trial court would apply the law set forth in a published decision from another appellate district was "completely devoid of factual or legal merit[, is] objectively unreasonable, [and] it is in bad faith." Morgan opposed the motion for sanctions, arguing the motion did not comply with the safe harbor provisions of section 128.7 because the version filed with the court was different from the one served on her and that her motion for reconsideration did not merit sanctions.
At the hearing on Morgan's motion for reconsideration and SH&V's motion for sanctions, the trial court denied Morgan's motion for reconsideration, finding she had not "provide[d] evidence of 'new or different facts, circumstances or law.' " The trial court granted SH&V's motion for sanctions, finding Morgan's motion for reconsideration was not warranted by existing law, was untimely filed, and "fail[ed] to set forth any new or different facts, circumstances or law" and that SH&V had complied with the procedural requirements of section 128.7 despite the additional "recitation of subsequent chronology" in the filed version of the motion that was not included in the version initially served on Morgan. The trial court granted sanctions in the amount of $2,500 "to be paid by plaintiff's counsel . . . personally."
The trial court had previously continued the hearing on Morgan's motion for reconsideration on SH&V's application so that its motion for sanctions could be heard simultaneously to avoid its being rendered moot. The hearing on both motions was continued again so that the same trial court judge who had awarded summary judgment could hear the motion for reconsideration.
The trial court entered judgment in favor of SH&V on February 2, 2016. Morgan timely appeals from that judgment.
DISCUSSION
Morgan challenges the trial court's order granting summary judgment to SH&V by attacking both the court's evidentiary rulings and its substantive ones. We are not persuaded by either. Morgan also asks this court to provide guidance regarding the timeliness of her motion for reconsideration, but we decline to provide an advisory opinion in that regard. Morgan too contends the trial court's order granting SH&V's motion for sanctions was erroneous because the motion filed was not the same as the one served prior to the safe harbor period. Because the procedural requirements of section 128.7 were not strictly adhered to, we reverse the order imposing sanctions. Finally, Morgan challenges the trial court's order sustaining the demurrer to her cause of action arising from the release of her personnel records. We conclude the trial court did not err in sustaining the demurrer.
1.0 Motion for Summary Judgment
The trial court granted summary judgment to SH&V. As part of its order granting SH&V's motion for summary judgment, the trial court sustained multiple objections to Morgan's offered evidence, her responses to SH&V's statement of undisputed facts, and portions of her memorandum of points and authorities. Morgan challenges these evidentiary rulings. Additionally, in part based on the excluded evidence, Morgan contends the trial court erred in granting summary adjudication as to her causes of action for disability discrimination, failure to accommodate, and failure to engage in the interactive process. We conclude Morgan has not demonstrated the trial court erred in excluding her evidence. We further conclude the trial court did not err in granting summary judgment to SH&V.
1.1 Evidentiary Rulings
We first address Morgan's challenge to the trial court's evidentiary rulings, which fall into three different categories. We address each category separately and conclude Morgan has not demonstrated error by the trial court.
While we generally review de novo the trial court's award of summary judgment (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1346), the standard of review for an evidentiary ruling in this context is less clear. In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 141 (Automobile Antitrust), notes that though the " 'weight of authority' " is that our review for evidentiary objections applies the abuse of discretion standard, Reid v. Google, Inc. (2010) 50 Cal.4th 512 acknowledged that an argument could be made that the de novo standard should apply when the evidentiary rulings are made in the context of a motion for summary judgment. Nevertheless, we need not decide the issue because our conclusions are sound under either an abuse of discretion or de novo review. (Automobile Antitrust, supra, 1 Cal.App.5th at p. 141 [noting that it is an abuse of discretion to apply an incorrect legal standard].)
First, Morgan claims it was error for the trial court to sustain SH&V's objections Nos. 4, 6, 7, 10-13, and 16-20 because she had complied with the basic requirements of section 437c, subdivision (b)(3) and rule 3.1350(f)(2). However, that was not the basis of any of those objections. Many of these objections included as a ground that Morgan had not complied with rule 3.1116(c) requiring that "[t]he relevant portion of any testimony in the deposition [included as an exhibit] must be marked in a manner that calls attention to the testimony." Nevertheless, the failure to comply with rule 3.116(c) was never the only basis on which SH&V objected, and the trial court's evidentiary rulings did not rely solely on that ground. Thus, even if Morgan was correct in her assertion that she had complied with the basic requirements of section 437c, subdivision (b)(3) and rule 3.1350(f)(2), which require a separate statement of facts, by failing to address the other grounds on which the trial court sustained objections Nos. 4, 6, 7, 10-13, and 16-20, Morgan has not demonstrated reversible error.
Second, Morgan challenges the trial court's ruling on SH&V's objection No. 22 to "[a]ll 'evidence' " in Morgan's memorandum of points and authorities that was not presented in a separate statement of facts. Section 437c, subdivision (b)(3) mandates that a party opposing a motion for summary judgment submit a separate statement that not only responds to the moving party's material facts but also "shall set forth plainly and concisely any other material facts the opposing party contends are disputed." Morgan failed to comply with this requirement. We acknowledge that "section 437c is a complicated, unforgiving statute with little flexibility and 'myriad requirements' " (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 632); nevertheless, the statute also plainly provides that "[f]ailure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion" (§ 437c, subd. (b)(3)).
Morgan argues that "the court abused its discretion by disregarding all of Morgan's evidence offered in support of her statements of fact and argument in her memorandum of points and authorities because it left Morgan with no evidence to prove her case." Furthermore, she claims objection No. 22 was overbroad as it "eliminated Morgan's evidence that had survived [SH&V's] other objections." We are not persuaded by these arguments because neither the fact that the ruling hurt Morgan's case nor that it excluded otherwise admissible evidence signifies that the ruling is erroneous. Nor are we persuaded by Morgan's efforts to factually distinguish this case from Batarse, supra, 209 Cal.App.4th 820, in which the court affirmed the trial court's award of summary judgment where the opposing party failed to submit a separate statement that complied with section 437c, subdivision (b)(3) or rule 3.1350(f) and did not present in its separate statement material facts demonstrating that the moving party's asserted legitimate reason for termination was pretext. (Batarse, at pp. 832-833.)
Third, and finally, Morgan challenges the trial court's ruling sustaining SH&V's objections Nos. 24 through 28, which she characterizes as objections to "specific statements in Morgan's memorandum of points and authorities." If we were to consider the statements that were the subject of the objections to be evidence, they would all fall within SH&V's objection No. 22 because they were presented only in Morgan's memorandum of points and authorities and not in her separate statement. Thus, she has not shown error in their exclusion. However, objections Nos. 24 through 28 are not aimed at evidence but are instead aimed at argument, which Morgan apparently concedes because she claims it was improper to sustain the objections because she "has the right to argue her own interpretation of the evidence." Thus, even if these objections had been overruled, it would not change the fact that Morgan failed to meet her evidentiary burden on the motion for summary judgment. Therefore, she has not demonstrated the requisite prejudice to warrant reversal. (Automobile Antitrust, supra, 1 Cal.App.5th at p. 141 ["erroneous exclusion of evidence by the trial court is not grounds for reversal unless we also determine that the error was prejudicial"].)
Accordingly, Morgan has not shown the trial court erred in its evidentiary rulings. Thus, we turn to her substantive challenges to the trial court's award of summary judgment.
1.2 Substantive Arguments
Morgan challenges the trial court's award of summary judgment, arguing SH&V was not entitled to judgment as a matter of law on her causes of action for disability discrimination (Gov. Code, § 12940, subd. (a)), failure to provide a reasonable accommodation (id., subd. (m)), and failure to engage in the interactive process (id., subd. (n)). We are not persuaded.
With respect to her challenge regarding the disability discrimination cause of action, Morgan argues the evidence she had to fulfill her evidentiary burden to prove SH&V's proffered legitimate reason for Morgan's termination was pretext was the evidence excluded by the trial court. Based on this "otherwise admissible evidence," Morgan claims she proved SH&V discriminated against her because of her disability. However, we have already concluded Morgan has not demonstrated any error by the trial court in excluding her evidence. Thus, she has also failed to show the trial court erred in finding SH&V was entitled to judgment as a matter of law on her disability discrimination cause of action.
With respect to her cause of action for failure to provide a reasonable accommodation, Morgan argues her disability was "indisputably known," and acknowledges SH&V did provide some accommodation by allowing her to take medical leave, but argues it could have allowed her to take time off for her prepaid trip or could have allowed her to start work when she returned from her trip. What Morgan has failed to argue is that the trial court erred in awarding judgment as a matter of law to SH&V on this cause of action.
The trial court found SH&V had offered evidence that Morgan "had been released to return to work by her physician without restrictions" and that Morgan did not inform SH&V of her trip before she returned to work, so that "permitting her to take a vacation is not a required reasonable accommodation." Thus, the trial court found SH&V "has submitted sufficient evidence to meet its initial burden of proof." Morgan does not dispute this finding. Additionally, the only material fact in support of the motion for summary adjudication as to this cause of action disputed by Morgan that was not the subject of a sustained evidentiary objection was that "[Morgan's] pattern of behavior caused [SH&V] repeatedly to search for and identify available positions that [Morgan] could fill, only, almost literally at the last minute, to be informed by [Morgan] that [her] leave would continue and [she] could not begin work as previously represented." Morgan's dispute was that it was her "medical providers who . . . determined whether she was fit to work part-time or full-time, not [her] 'pattern of behavior.' " The trial court concluded this was not a material dispute, and Morgan has not attempted to persuade us otherwise. Therefore, Morgan has not shown the trial court erred in awarding judgment as a matter of law to SH&V on Morgan's cause of action for failure to accommodate.
Finally, with respect to her cause of action for failure to engage in the interactive process, Morgan argues SH&V "did not fulfill its duty to engage in the interactive process." However, that is not the question before this court. Rather, we must determine whether the trial court erred when it found SH&V had presented sufficient evidence to meet its initial burden of proof by showing that it permitted Morgan to take a 13-month medical leave of absence, during which it "communicated on multiple occasions regarding available positions," and that Morgan had not "identif[ied] any facts to establish that [SH&V] failed to engage in the interactive process." Morgan had argued that though she had been "released by her physician to work full time without restrictions, [SH&V] had an affirmative obligation to inquire as to whether her preplanned vacation was part of [her] therapy." Again, the only fact in dispute was whether Morgan's pattern of behavior had caused SH&V to find positions for Morgan only to be told at the last minute that she could not yet return to work, a dispute which the trial court found to be immaterial. Morgan has not demonstrated that the trial court erred in awarding judgment as a matter of law as to her cause of action for failure to engage in the interactive process.
2.0 Motion for Reconsideration
Though Morgan argues on appeal that her motion for reconsideration was timely, she does not actually challenge the trial court's denial of her motion for reconsideration. Instead, she asks this court to provide guidance for Morgan, defendant SH&V, and the trial court, clarifying the timing for filing a motion for reconsideration. Morgan misunderstands the role of this court. If Morgan is not challenging the denial of her motion for reconsideration, there is no justiciable issue before this court. (See People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 ["The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court."].)
3.0 Motion for Sanctions
Morgan's counsel challenges the trial court's order granting SH&V's motion for sanctions pursuant to section 128.7 based on her filing of the above mentioned motion for reconsideration. As in the trial court, Morgan argues the motion for sanctions is procedurally deficient because the papers served prior to the inception of the statutory safe harbor period are not identical to those filed with the trial court. The trial court found SH&V had substantially complied with section 128.7 despite the additional "recitation of subsequent chronology" in the filed version of the motion. We conclude the trial court erred in granting the motion for sanctions.
Though counsel is not a named appellant on the notice of appeal, the sanctions order of which she is the sole subject was identified on the notice of appeal. In the absence of any claim of prejudice by SH&V, and in light of the requirement that we liberally construe notices of appeal, we will construe the notice of appeal in this case to name Morgan's counsel as an additional appellant and address her claim that the sanctions were improperly issued. (Rule 8.100(a)(2); see Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 974; see also Beltram v. Appellate Department (1977) 66 Cal.App.3d 711, 714-716; Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 15 (Cromwell); Kane v. Hurley (1994) 30 Cal.App.4th 859, 861, fn. 4; but see In re Marriage of Knowles (2009) 178 Cal.App.4th 35, 38 , fn. 1, citing Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39.)
We note the issue whether a court of appeal lacks jurisdiction over an appeal from an order imposing sanctions on an attorney when the notice of appeal is brought in the name of the client rather than the attorney is presently before the Supreme Court as a result of its grant of a petition for review in K.J. v. Los Angeles Unified School Dist. (Feb. 23, 2017, B269864) (nonpub. opn.), review granted June 14, 2017, S241057.
Section 128.7 provides that a motion for sanctions pursuant to that section is subject to certain procedural requirements. Specifically, "[n]otice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." (§ 128.7, subd. (c)(1), italics added.) This section "is 'modeled, almost word for word, on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.). In examining the provisions of section 128.7, California courts may look to federal decisions interpreting the federal rule.' " (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 413 (Hart).)
Decisions interpreting the federal rule have found application of the doctrine of substantial compliance to be inconsistent with the plain language of the safe harbor provisions. (Cromwell, supra, 65 Cal.App.4th at p. Supp. 15.) The same has been said of section 128.7: "By specifically requiring service of the 'motion and 'notice of motion,' the Legislature made clear that the papers to be served on the opposing party are the same papers which are to be filed with the court no less than 30 [(now 21)] days later." (Cromwell, at p. Supp. 15.) This means that " '[c]lose' is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute." (Hart, supra, 95 Cal.App.4th at p. 414.) As such, if the originally served version and the filed version of the motion for sanctions are not identical, the trial court abused its discretion in imposing sanctions.
Here, in reviewing the two sets of papers, it is clear there is additional information included in the filed version that was not included in the initially served version. This includes the amount of sanctions sought, which was left blank in the original version; a report of the hearing on SH&V's ex parte application for an order shortening time to hear the sanctions motion or continuing the hearing on the motion for reconsideration; the addition of a factual recitation that the safe harbor period had expired and the motion for reconsideration remained on calendar; additions to a declaration supporting these additions to the memorandum of points and authorities; and an additional exhibit evidencing the same. This information likely was not necessary to the trial court's decisionmaking process in determining whether to grant the sanctions award. Nevertheless its inclusion in the filed version signifies that SH&V's motion for sanctions did not comply with the requirements of section 128.7, so it was error for the trial court to grant the motion.
Additionally, we disagree with SH&V's claim that requiring strict compliance "would make it such that the trial court would not be aware of whether the moving party complied with the safe harbor provisions contained in . . . section 128.7." Aside from the fact that the trial court could look at its own docket to determine whether the motion for reconsideration was still on calendar, there is nothing in section 128.7 to prevent SH&V from providing additional evidence at the hearing on the motion or in the form of a supplemental declaration. What is precluded is the alteration of the original motion after the safe harbor period inducing service and prior to filing. SH&V was also not without recourse at the hearing on the sanctions motion. It could have, as in In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 827, moved to strike the additional information from its moving papers so that the court was ruling on a version of the motion identical to the one served on the opposing party.
In light of our conclusion that the trial court erred in imposing sanctions, and because Attorney Joanne DeLong (State Bar No. 237161) was referred to the State Bar as a result of the imposition of sanctions pursuant to Business and Professions Code section 6086.7, subdivision (c), we are forwarding a copy of this opinion to the State Bar for its inclusion in its record on this matter. 4.0 Dismissal of Labor Code Section 1198.5 , Subdivision (e) Claim
Morgan challenges on appeal the trial court's order sustaining SH&V's demurrer to her cause of action for a violation of Labor Code section 1198.5, subdivision (e) as alleged in her first amended complaint on statute of limitations grounds. We conclude Morgan has not demonstrated the trial court erred in sustaining the demurrer.
Labor Code section 1198.5, subdivision (a) provides that "[e]very current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records that the employer maintains relating to the employee's performance or to any grievance concerning the employee." Subdivision (e) of Labor Code section 1198.5 provides that "[t]he employer may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative. For purposes of this section, 'representative' means a person authorized in writing by the employee to inspect, or receive a copy of, his or her personnel records."
In her first amended complaint, Morgan alleged a violation of Labor Code section 1198.5, subdivision (e), when an agent of SH&V provided a written reprimand of Morgan to another employee in April 2010, causing Morgan "extreme embarrassment and stress." SH&V and the individual defendant demurred to the cause of action on the grounds that the claim was time-barred by the three-year statute of limitations set forth in section 338. Morgan, relying on Elkins v. Derby (1974) 12 Cal.3d 410 (Elkins), argued the statute of limitations had been tolled during the pendency of her administrative action with the Department of Fair Employment and Housing (the Department). The trial court sustained the demurrer as to this cause of action, finding that the claim was barred by the statute of limitations and that no tolling applied because "the [L]abor [C]ode violation is not related to the alleged FEHA claims."
Section 338, subdivision (a), provides that "[a]n action upon a liability created by statute, other than a penalty or forfeiture" must be filed "[w]ithin three years." --------
As stated in Elkins, supra, 12 Cal.3d at page 414, "whenever the exhaustion of administrative remedies is a prerequisite to the initiation of a civil action, the running of the limitations period is tolled during the time consumed by the administrative proceeding." This is true "regardless of whether the exhaustion of one remedy is a prerequisite to the pursuit of another, if the defendant is not prejudiced thereby, the running of the limitations period is tolled '[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.' " (Ibid.) Part of the justification for this equitable tolling of the limitations period is that it does not "compromis[e] defendants' significant 'interest in being promptly apprised of claims against them in order that they may gather and preserve evidence' because that notice interest is satisfied by the filing of the first proceeding that gives rise to tolling." (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100.) As such, one of the qualifying prerequisites for application of equitable tolling is that "the facts of the two claims be identical or at least so similar that the defendant's investigation of the first claim will put him in a position to fairly defend the second." (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 925.)
Here, the trial court found that equitable tolling was not appropriate because the cause of action for the Labor Code violation was not related to the FEHA claims. There is nothing in the record to contradict this finding. Rather, the record contains the precomplaint questionnaire Morgan submitted to the Department on March 20, 2012, in which she complained that she was discriminated against based on her race and disability, had been harassed between January and April 2011, retaliated against between January and April 2011, and denied an accommodation in March 2012. Nowhere in her precomplaint questionnaire does she mention the disclosure of her personnel records, identify the employee who released or received the copy of Morgan's written reprimand, or mention any events occurring in April 2010. Thus, nothing in the precomplaint questionnaire identified the events of April 2010 as a possible basis for a cause of action against SH&V. Accordingly, on this record, we cannot find the trial court erred in sustaining the demurrer to Morgan's cause of action for violation of Labor Code section 1198.5, subdivision (e) on statute of limitations grounds.
DISPOSITION
The trial court's order imposing sanctions on Attorney Joanne DeLong (State Bar No. 237161) is reversed. A copy of this opinion will be forwarded to the State Bar of California for inclusion in its record on this matter. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
BUTZ, J. I concur: ROBIE, Acting P. J. Concurring and Dissenting Opinion of Duarte, J.
I concur in the majority opinion except as to part 3.0 of the Discussion, from which I respectfully dissent. I disagree with the majority's conclusion that we have jurisdiction to hear the claim of error regarding appellant's attorney's sanctions, where the appellant was not sanctioned and the attorney did not separately appeal.
I do not see how liberal construction properly achieves jurisdiction. Nor does prejudice or lack thereof come into play. Because Morgan was not sanctioned, she is not aggrieved by the order. Her counsel did not appeal from the order, and counsel alone was aggrieved by the sanctions. We therefore lack jurisdiction to entertain counsel's challenge. (See People v. Indiana Lumbermens Mutual Ins. Co. (2014) 226 Cal.App.4th 1, 10-11 ["Indiana is not aggrieved by the sanctions ruling because it was not ordered to pay sanctions (Code Civ. Proc., § 902), and it cannot appeal the sanctions award on Rorabaugh's behalf"]; In re Marriage of Knowles (2009) 178 Cal.App.4th 35, 38, fn. 1 [same]; Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 41-42 [same].)
The majority assumes jurisdiction, citing as support cases where both the attorney and client were ordered to pay sanctions. I agree that in such cases, an appellate court may liberally interpret a notice of appeal that omits the attorney's name to embrace both the attorney and the client, because both are aggrieved by the sanctions order. (See Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 973-974 [joint liability for sanctions]; Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 12, 15 ["In the absence of prejudice to defendant, we deem the notice of appeal to include an undesignated attorney who was found jointly and severally liable for sanctions"].) But these authorities are inapposite because in this case only counsel was sanctioned. Likewise, Beltram v. Appellate Department (1977) 66 Cal.App.3d 711 at pages 714 to 716 is not on point here, but merely finds a prisoner aggrieved by the improper denial of his counsel's ability to confer with him.
Kane v. Hurley (1994) 30 Cal.App.4th 859 at page 861, footnote 4 arguably supports the majority's position here, but in a highly unusual case where sanctions were the sole issue on appeal and were clearly unauthorized. To the extent the Kane opinion can be read to support the majority's assumption of jurisdiction in this case, Kane is an outlier with which I disagree.
Accordingly, I am not persuaded that we can properly review the sanctions order in this case. Therefore, I respectfully dissent from part 3.0.
DUARTE, J.