Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County Ct. No. GIC836002, John Meyer and Lillian Y. Lim, Judges.
IRION, J.
Shelly Woodall appeals the trial court's ruling granting summary judgment against her on her claim of wrongful termination in violation of public policy, and in favor of her former employer, Asset Marketing Systems Insurance Services, LLC (AMS). The trial court ruled that Woodall failed to identify any established public policy embodied in an applicable statute, regulation or constitutional provision that would support such a claim. Woodall contends that the trial court's ruling was erroneous because she adequately identified "areas of law" that could support a wrongful termination claim and, in the alternative, the trial court erred by declining to grant leave to amend her complaint to specify an applicable statutory basis for the claim.
As discussed in more detail below, we conclude that Woodall's contentions are without merit. Woodall's vague assertions of public policy violations by her former employer were insufficient to establish a triable issue of material fact at the summary judgment stage. Woodall also fails to establish that the trial court abused its discretion in declining to grant leave to amend her complaint, primarily because Woodall never requested an opportunity to do so. Consequently, we affirm.
I
FACTS
Woodall's former employer, AMS, is a "field-marketing organization" that "assists life insurance sales personnel and financial planners in their sales and marketing efforts." As one of its services, AMS provides sales/marketing scripts to insurance agents and financial planners that have been preapproved by the National Association of Securities Dealers (NASD).
AMS hired Woodall as a "Compliance Manager" in February 2003, in part, to facilitate submission of its scripts to the NASD for approval. The NASD requires that a "registered principal," such as Woodall, sign off on materials prior to their submission to the NASD for review.
In late 2003, Woodall received two scripts from AMS, entitled "Tax Max" and "Enlightened Educator," that AMS sought to submit to the NASD. Woodall refused to sign off on the scripts and subsequently submitted a letter of resignation. Prior to the effective date of the resignation letter, AMS terminated Woodall's employment.
In July 2005, after Woodall filed a lawsuit against AMS, the company moved for summary judgment. The trial court granted the motion with respect to Woodall's wrongful termination claim, and Woodall appeals.
II
DISCUSSION
Woodall contends that the trial court improperly granted summary judgment on the wrongful termination claim because, contrary to the court's ruling, she adequately identified a public policy that was violated by AMS's termination of her employment. Woodall also contends that even if she failed to properly identify an applicable public policy supporting her wrongful termination claim, the trial court should have granted her leave to amend her complaint to do so. We address these arguments below after setting forth the applicable procedural history and legal principles.
A. Relevant Procedural History
Woodall filed her complaint against AMS in September 2004, asserting causes of action for breach of contract, fraud and wrongful termination; AMS filed its answer to the complaint in November. The parties then proceeded with discovery, and AMS subsequently moved in July 2005 for summary judgment with respect to each of Woodall's causes of action. After receiving AMS's motion and evidence in support of the motion, as well as Woodall's opposition to the motion and evidence in opposition, the trial court issued a tentative ruling. In its ruling, later made final, the court found in favor of Woodall on the contract and fraud causes of action, and against her on the wrongful termination cause of action.
With respect to the wrongful termination claim, the court's ruling stated that Woodall failed to carry her burden of demonstrating a triable issue as to whether her termination violated an established public policy, a prerequisite for a wrongful termination claim by an at-will employee. The court noted that the only specific rule cited by Woodall in her pleadings or during discovery was a "Conduct Code" of the NASD — a nongovernmental entity whose Code could not set forth the requisite public policy basis for a wrongful termination claim.
Woodall does not challenge the trial court's implicit finding that she was an at-will employee.
B. Legal Principles on Summary Judgment
Under section 437c of the Code of Civil Procedure, if a defendant makes "a prima facie showing" that one or more elements of the plaintiff's cause of action cannot be established, this showing "causes a shift, and the [plaintiff] is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) To meet that burden, the plaintiff "must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action.' " (Id. at p. 849.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850.)
While we review a grant of summary judgment de novo, "de novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.) Further, we will not entertain arguments on appeal that were not raised before the trial court. " '[U]nless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create "triable issues of material fact" may not be raised or considered on appeal.' " (Peart v. Ferro (2004) 119 Cal.App.4th 60, 70 (Peart).)
C. The Trial Court's Summary Judgment Ruling Was Not Erroneous
Woodall contends that the trial court's summary judgment ruling was erroneous because, although she failed to identify specific statutes or regulations that could provide the requisite public policy basis for her claim, her reference to potentially applicable "areas of law" was sufficient. We disagree.
On appeal, Woodall does not challenge the trial court's ruling that a violation of an NASD rule is an inadequate basis for a wrongful termination claim.
An employer may discharge an at-will employee "for no reason, or for an arbitrary or irrational reason," but is precluded from doing so "for an unlawful reason or a purpose that contravenes fundamental public policy." (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1094.) A discharge is actionable as against public policy if it violates a policy that is: "(1) delineated in either constitutional or statutory provisions; (2) 'public' in the sense that it 'inures to the benefit of the public' rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) 'substantial' and 'fundamental.' " (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 901-902 (Stevenson).)
The requirement that the policy underlying employer liability be "tether[ed]" to "specific constitutional or statutory provisions serves not only to avoid judicial interference with the legislative domain, but also to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge." (Stevenson, supra, 16 Cal.4th at p. 889.) "This limitation recognizes an employer's general discretion to discharge an at-will employee without cause . . ., and best serves the Legislature's goal to give law-abiding employers broad discretion in making managerial decisions." (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79-80, 82 (Green).)
Applying the above legal standards, we conclude that Woodall failed to make the requisite showing of a triable issue of material fact with respect to her claim that AMS violated an established public policy in terminating her employment.
In her discovery responses and pleadings, the sole specific basis identified by Woodall to support her wrongful termination claim was a rule of the NASD that requires a "registered principal" to approve sales literature before that literature is submitted to the NASD for approval. In its motion for summary judgment, AMS contended that, as a nongovernmental entity, the NASD's rules did not set forth an adequate "public policy" for purposes of a wrongful termination action, and that Woodall failed to identify any other source of public policy that could support her claim. This "subjected [Woodall] to a burden of production" to " 'set forth the specific facts' " that would establish "a prima facie showing of the existence of a triable issue of material fact" as to whether her termination violated an established public policy. (Aguilar, supra, 25 Cal.4th at pp. 849-850.) Woodall failed to do so.
Woodall's responsive pleading did not identify any statute or regulation that could form the basis for her wrongful termination claim, simply asserting, without citation to authority, that "[t]he orders . . . for Ms. Woodall to approve the seminar scripts . . . without first revising the scripts constitute a violation of public policy." At the subsequent hearing on AMS's motion, the trial court repeatedly asked Woodall's counsel to identify the specific statutory or regulatory basis for the wrongful termination claim. The court emphasized that it was insufficient to simply label AMS's conduct "immoral or fraudulent or bad"; Woodall needed to "point to some rule or some regulation or something," and explain how it applied. Woodall's counsel responded, "Well, I would submit that there are fraud statutes and those are rules and regulations. I mean, I don't think it has to be a governmental regulation." We believe these arguments were insufficient to carry Woodall's burden on summary judgment.
We recognize that, as noted above, Woodall's counsel periodically referenced amorphous concepts of potentially applicable public policy to support her claim, asserting, for example, that AMS's actions were "fraudulent" and could potentially have led to financial "elder abuse." These vague assertions, however, without any citation to specific statutory, regulatory or constitutional provisions and devoid of any analysis as to how AMS's actions could be found by a "reasonable trier of fact" to violate the (unstated) provisions, are insufficient at the summary judgment stage. (Aguilar, supra, 25 Cal.4th at pp. 849-850; see Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1257 (Turner) [holding that plaintiff's "vague charge of 'Alcohol, Tobacco and Firearms laws' violations, largely unaccompanied by citations to specific statutory or constitutional provisions, puts [the defendant] and the court in the position of having to guess at the nature of the public policies involved, if any," and "is plainly insufficient to create an issue of material fact justifying a trial on the merits of [wrongful termination] claims"].) Indeed, Woodall submitted 81 pages of sales scripts to the court, but never explained what portion of those scripts were "fraudulent" (i.e., violated an applicable fraud statute or regulation) or otherwise unlawful. Woodall further failed to explain how the preliminary submission of the scripts to the NASD for approval would have constituted a fraudulent or otherwise prohibited act in violation of any statute, regulation or constitutional provision (apart from the NASD Code of Conduct). By leaving these questions not only unanswered, but unaddressed, Woodall's showing at the summary judgment stage left the trial court "having to guess at" the triable issue presented — a showing that is clearly inadequate to warrant a trial on the merits. (Turner, supra, 7 Cal.4th at p. 1257, fn. 7; Green, supra, 19 Cal.4th at p. 83 ["Clearly, a claim that does not identify the basis of its wrongful termination allegations will not prevail on summary judgment"].) Consequently, we conclude that the trial court did not err in granting AMS's motion for summary judgment on Woodall's wrongful termination claim.
Although not cited by Woodall on appeal, Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623 holds that the termination of an employee for refusal to perpetrate a fraud does implicate public policy concerns. In that case, however, the plaintiff did not simply rely on broad assertions that his employer's actions were "fraudulent," but rather argued that the employer's specific billing practices (such as charging customers for products they did not receive) violated specific California fraud statutes, citing sections of the Civil Code and Penal Code section 484. (Haney, at pp. 630, 642-643.)
Citing Green, supra, 19 Cal.4th 66, Woodall contends that "[c]itation to specific statutes need not be required" in a wrongful termination action to survive a defense motion for summary judgment. Green, however, does not support this contention, emphasizing instead that the court of appeal in that case "did find that plaintiff adequately identified the statutes and regulations supporting his public policy claim in his opposition to defendant's summary judgment motion." (Green, at p. 83, fn. 7.) The court added, "Clearly, a claim that does not identify the basis of its wrongful termination allegations will not prevail on summary judgment." (Ibid.; Turner, supra, 7 Cal.4th at p. 1257 [ruling that vague charges of statutory violations are "insufficient to create an issue of material fact justifying a trial on the merits of [wrongful termination] claims"].)
Woodall notes in her appellate brief that she stated in her statement of undisputed material facts that she had until October 15, 2005, to "clarify and expand" her discovery responses to include other sources of public policy. Woodall, however, fails to identify any part of the record that indicates that she did supplement those responses, and provides no explanation for why, independent of her discovery obligations, she did not identify the pertinent public policy basis for her claim prior to the court's summary judgment ruling on October 21, 2005.
D. The Trial Court Was Not Required to Provide Woodall Leave to Amend Her Complaint
Woodall next contends that even if the trial court properly ruled that she had failed to carry her burden on summary judgment, it abused its discretion in declining to provide an opportunity for her to amend her complaint to "set forth specific statutorily-based public policy upon which her wrongful termination was based." Woodall contends that had she been given the opportunity, she would have "pleaded specific statutory violations based on the Insurance Code [sections 781, 785, subdivision (a), 790.03, 10509.8, subdivision (a)] and elder abuse law [Welfare and Institutions Code section 15610.30, subdivision (a)]." Our review of a trial court's determination of whether to grant leave to amend a complaint is for abuse of discretion. (Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059 (Kirby).)
We conclude that Woodall fails to demonstrate any abuse of discretion. We reach this conclusion primarily on the ground that Woodall never sought leave to amend, and consequently there was no basis for the court to have concluded that an amendment to the complaint was necessary for Woodall to properly oppose AMS's summary judgment motion.
If a court sustains a demurrer without leave to amend, "the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made." (Code Civ. Proc., § 472c, subd. (a).) At the summary judgment stage, however, it is well established that "the plaintiff forfeits an opportunity to amend to state new claims by failing to request it." (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1664; Lee v. Bank of America (1994) 27 Cal.App.4th 197, 216 (Lee) [on summary judgment, "[i]n the absence of . . . a request" to amend, "the court is under no duty to inquire whether there are causes of action or defenses inherent in the facts but not articulated"]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18 [if a party seeks to offer different factual assertions than alleged in the complaint, it must move to amend the complaint "prior to the hearing on the summary adjudication motion"]; Krupp v. Mullen (1953) 120 Cal.App.2d 53, 57 [same]; cf. Code Civ. Proc., § 437c, subd. (c) [requiring trial court to grant a motion for summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"].) Stated another way, there is no basis to find an abuse of discretion in a trial court's failure to sua sponte grant leave to amend at the summary judgment stage because " ' " '[i]n the absence of some request for amendment there is no occasion' " ' " for the trial court " ' " 'to inquire about possible issues not raised by the pleadings.' " ' " (Bostrom, at p. 1664.)
Woodall relies on Kirby, supra, 11 Cal.App.4th 1059, for her contention that the trial court was required to grant leave to amend in the instant case. However, Kirby is easily distinguished as the plaintiffs in Kirby requested leave to amend their complaint in the trial court; here, Woodall did not. (Id. at p. 1069 [emphasizing in its analysis that plaintiffs "did request leave to amend prior to entry of judgment" in ruling that the trial court abused its discretion by failing to grant leave to amend].) In addition, the Kirby court highlighted that the defendant's motion in that case was essentially a demurrer as it was "unsupported by declarations or other evidentiary material." (Id. at p. 1067.) Here, AMS's motion for summary judgment, which was both supported and opposed by evidence submitted by the parties, cannot be fairly characterized as anything other than a summary judgment motion.
In sum, "[w]hile there is authority for a reviewing court to treat a summary judgment motion in some circumstances as the functional equivalent of a motion for judgment on the pleadings and reverse to allow leave to amend, that authority requires a prior request to amend at the trial court." (Lee, supra, 27 Cal.App.4th at p. 215.) Here, where there was no "request to amend at the trial court," there is no authority to support Woodall's contention that the trial court abused its discretion by failing to sua sponte grant Woodall leave to amend her complaint. (Ibid.) We, therefore, reject Woodall's alternative contention.
As noted earlier, Woodall includes various statutory sections in her appellate brief that she contends supply the requisite public policy for purposes of her wrongful termination claim. As she did not present these theories to the trial court, they cannot form the basis for reversal on appeal. (Peart, supra, 119 Cal.App.4th at p. 70.)
DISPOSITION
Affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.