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Clark v. Hoag Mem'l Hosp. Presbyterian

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Mar 30, 2017
G051949 (Cal. Ct. App. Mar. 30, 2017)

Opinion

G051949

03-30-2017

ROGENE CLARK, Plaintiff and Appellant, v. HOAG MEMORIAL HOSPITAL PRESBYTERIAN, Defendant and Respondent.

Workplace Justice Advocates, Tamara S. Freeze, Robert A. Odell and Allison A. Lin for Plaintiff and Appellant. Godes & Preis, Joseph M. Preis and Oliver B. Dreger for Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2013-00657443) OPINION Appeal from a judgment and discovery orders of the Superior Court of Orange County, Gregory H. Lewis, Judge. The judgment is affirmed in part and reversed in part; the discovery orders are affirmed. Workplace Justice Advocates, Tamara S. Freeze, Robert A. Odell and Allison A. Lin for Plaintiff and Appellant. Godes & Preis, Joseph M. Preis and Oliver B. Dreger for Defendant and Respondent.

* * *

Plaintiff and appellant Rogene Clark took a medical leave of absence from her job with defendant and respondent Hoag Memorial Hospital Presbyterian (Hoag) to recover from severe stress, anxiety, and depression. While Clark was on leave, Hoag sent her a letter explaining she had exhausted Hoag's six-month leave of absence policy, and gave Clark a deadline to return to work or lose her position. In response, Clark's psychologist sent Hoag a letter stating Clark was "totally and temporarily disabled" for the next five weeks, at which point she would be reevaluated. Hoag's human resources representatives who received this letter interpreted it as a request to extend Clark's leave for that five-week period. Hoag nonetheless terminated Clark's employment because she had exhausted the maximum amount of leave allowed under Hoag's leave of absence policy and failed to return to work by Hoag's deadline. Hoag never contacted Clark or her psychologist to discuss the psychologist's letter.

Clark sued Hoag alleging claims for unlawful discrimination, failure to reasonably accommodate a known disability or condition, and failure to engage in the interactive process under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA), violation of the California Family Rights Act (§ 12945.2; CFRA), wrongful termination in violation of public policy, and unfair competition under Business and Professions Code section 17200 et seq. Hoag moved for summary judgment or summary adjudication, arguing each of Clark's claims failed as a matter of law because Hoag terminated Clark for the legitimate nondiscriminatory reason that she was unable to perform her essential job functions with or without reasonable accommodations, Hoag reasonably accommodated Clark by providing her more than seven months of leave, and Clark did not request or otherwise identify any further accommodation that Hoag failed to provide. Hoag also sought summary adjudication that Clark was barred from recovering emotional distress damages on any of her claims because she already recovered those damages through the workers' compensation system. The trial court granted Hoag summary judgment, concluding Hoag had provided Clark significant leave and had no obligation to keep her position open indefinitely.

Statutory references are to the Government Code unless otherwise stated.

We reverse the judgment on Clark's FEHA claims. Under FEHA, an employer has an ongoing duty to work with a disabled employee to identify and implement reasonable accommodations that will enable the employee to perform her essential job functions. Extending a leave of absence may be a reasonable accommodation if it is likely the employee would be able to perform her essential job functions at the end of the extension, and providing the extension would not be an undue hardship on the employer. Whether a leave extension or other potential accommodation is reasonable presents a question of fact to be decided on a case-by-case basis. Here, Hoag failed to meet its initial burden to show extending Clark's leave was not a reasonable accommodation because it was unlikely she would have been able to perform her essential job functions at the end of the extension. That Hoag already had provided Clark more than seven months of leave does not necessarily mean extending the leave for an additional five weeks was unreasonable.

We affirm the judgment on Clark's CFRA claims. The CFRA guarantees an employee 12 weeks of leave to care for a family member or recover from a serious health condition, and reinstatement to the same or an equivalent position at the end of that leave period. Unlike FEHA, the CFRA does not require an employer to reasonably accommodate an employee's disability or health condition. If an employee is unable to perform her essential job functions at the end of a 12-week CFRA leave, the employer may terminate the employee without violating the CFRA. Here, it is undisputed Hoag provided Clark significantly more than 12 weeks of leave, and she still could not perform her essential job functions without accommodations. Moreover, contrary to Clark's contention, the CFRA does not prohibit an employer from counting an employee's 12 weeks of CFRA leave toward the maximum amount of leave authorized by the employer's leave policy, provided the policy grants more than 12 weeks of leave.

We reverse the court's judgment on Clark's wrongful termination and unfair competition claims because Hoag challenged those claims on the ground they failed for the same reason as Clark's FEHA claims. As explained above, Hoag failed to show Clark's FEHA claims failed as a matter of law. We do not reach the merits of Hoag's challenge to Clark's claims for emotional distress damages because the challenge does not completely dispose of a cause of action, and therefore may not be decided on a summary adjudication motion.

Finally, Clark also appeals two orders denying her motions to compel further responses to certain interrogatories and imposing monetary sanctions against her and her counsel for bringing those unsuccessful motions. As explained below, we affirm those orders because Clark failed to show the trial court abused its discretion.

I

FACTS AND PROCEDURAL HISTORY

In July 2010, Clark went to work for Hoag as an admitting representative in its imaging center. After several months, she began experiencing severe stress, anxiety, and depression that continued to worsen. On December 1, 2011, Clark began a medical leave of absence to address her deteriorating condition. In granting Clark's leave request, Hoag did not dispute that Clark was disabled and entitled to a leave of absence under the CFRA or Hoag's leave of absence policy. When Clark began her leave, she signed a form acknowledging that she could not return to work "without a release from [her] health care provider." Hoag's leave of absence policy provides, "The maximum allowable leave period for any [leave of absence] . . . is six (6) months in any twelve (12)-month period unless statutorily required."

Clark remained on leave throughout the first half of 2012 without any communication between her and Hoag. Hoag broke the silence on June 28, 2012, when a Hoag human resources representative sent a letter informing Clark she had reached her six-month maximum under Hoag's leave policy in late May 2012. The letter continued, "If you are unable to return to work by July 16, 2012, we will process your separation of employment effective on that date. Please respond as soon as possible but no later than 4:00 p.m. on Friday, July 13, 2012. If we do not hear from you by Friday, July 13, 2012, we will separate your employment effective on Monday, July 16, 2012. If this is the case, please accept our wishes for a healthy recovery, and we encourage you to re-apply for employment once you are able to return to work."

Clark informed her treating psychologist about Hoag's letter, but she did not directly respond to Hoag. On July 12, 2012, the day before Hoag's deadline, Clark's psychologist e-mailed Hoag a letter stating, "This letter serves to verify that [Clark] is totally and temporarily disabled effective today, until August 20, 2012, at which time she will be re-evaluated to determine her work status." The letter invited Hoag to contact Clark's psychologist if it had any questions about Clark's condition. Hoag acknowledged receipt of this letter and its human resources representatives later testified they understood the letter to mean that Clark remained temporarily disabled, and that she was requesting to extend her leave to August 20, 2012. Hoag's representatives did not interpret the letter as a request for an indefinite leave of absence.

After receiving this letter, Hoag's human resources representatives decided to terminate Clark's employment effective July 17, 2012. The personnel action form Hoag prepared to memorialize Clark's termination stated the reason was that Clark "exhausted maximum [leave of absence] time as per policy." Hoag did not contact Clark or her psychologist before terminating Clark's employment. When Hoag discharged her, Clark had been on leave for seven and a half months.

In June 2013, Clark filed this action against Hoag alleging claims for (1) disability discrimination under FEHA; (2) failure to accommodate under FEHA; (3) failure to engage in the interactive process under FEHA; (4) violation of the CFRA; (5) retaliation for exercising rights under the CFRA; (6) wrongful termination in violation of public policy; and (7) violation of Business and Professions Code section 17200 et seq. Clark alleges Hoag failed to reasonably accommodate her disability, failed to engage in the interactive process to identify possible accommodations, and unlawfully terminated her based on her condition and extended leave of absence.

Hoag moved for summary judgment, or alternatively, summary adjudication, arguing each of Clark's causes of action failed because Hoag terminated Clark for the legitimate nondiscriminatory reason that she could not perform her job with or without reasonable accommodations, Hoag reasonably accommodated Clark by providing her more than seven months of leave, and Clark did not request or otherwise identify any further accommodation that Hoag failed to provide. Hoag also sought summary adjudication on Clark's claim for emotional distress damages, arguing she previously recovered those damages through her workers' compensation claim and that was the exclusive means for her to recover those damages.

Clark opposed the motion on the ground that extending her medical leave as her psychologist had requested was a reasonable accommodation that would have allowed her to perform her essential job functions. In support, Clark submitted her own declaration explaining she had made significant progress toward her recovery before Hoag terminated her, and she "expected" to return to work following her August 20, 2012 evaluation. Clark's declaration also explained Hoag's termination of her employment exacerbated her condition and left her feeling "worthless, discarded, depressed and embarrassed." Based on this set back in her recovery, Clark's psychologist kept her on disability leave through January 2013.

The trial court granted Hoag summary judgment, explaining, "FEHA does not require an employer to leave a position open indefinitely to an employee who is still completely disabled when all her leave expires. Nor is there any further duty to 'investigate'. This bootstrapping argument would create an open ended, never closing period of disability. The CFRA, Retaliation, Wrongful Termination and [Business and Professions Code section] 17200 claims all fail because neither the FEHA or CFRA statutes were violated. The plaintiff's own inability to return to work or request accommodation bars the claims. Plaintiff is not entitled to indefinite leave as she is requesting. [¶] There are no triable issues or evidence offered by the plaintiff to indicate that the defendant Hoag had discriminated or in any way treated the plaintiff adversely because of her disability claim. When the plaintiff is unable to work, there is no requirement to accommodate when as here, the defendant had already provided leave in excess of what was required." This appeal followed.

In addition to challenging the trial court's summary judgment, Clark also challenges two discovery orders the court made denying her motions to compel further discovery responses and imposing monetary sanctions against her and her counsel. Those orders are discussed below.

II

DISCUSSION

A. Summary Judgment Standards for Employment Discrimination Cases

"'"The purpose of the summary judgment procedure is not to try the issues, but merely to determine whether there are issues to be tried."'" (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1285.) "A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. [Citation.] The defendant can meet that burden by either showing the plaintiff cannot establish one or more elements of his or her cause of action or there is a complete defense to the claim. [Citations.] To meet this burden, the defendant must present evidence sufficient to show he or she is entitled to judgment as a matter of law. . . . [¶] Once the defendant meets that burden, the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts." (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889, italics added.) "The plaintiff opposing the motion, however, has no burden to present any evidence until the defendant meets his or her initial burden." (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 963 (Swanson).)

In the employment discrimination context, "California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792." (Swanson, supra, 232 Cal.App.4th at p. 964.) "At trial, under the first step of the McDonnell Douglas framework, the plaintiff may raise a presumption of discrimination by presenting a 'prima facie case,' the components of which vary depending upon the nature of the claim . . . . 'A satisfactory showing to this effect gives rise to a presumption of discrimination which, if unanswered by the employer, is mandatory—it requires judgment for the plaintiff.'" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri).) The burden then shifts to the employer defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. (Swanson, at p. 965.) If the employer does so, "the presumption of discrimination created by the prima facie case '"simply drops out of the picture"' [citations] and the burden shifts back to the employee to prove intentional discrimination." (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) In the final stage, the plaintiff employee must prove discrimination by presenting evidence to show the employer's proffered reasons are a pretext for discrimination or the employer otherwise acted with a discriminatory motive. (Serri, at p. 861; Swanson, at p. 965.)

Because the McDonnell Douglas framework was developed for use at trial, the initial burden shifts to the employer defendant when bringing a summary judgment motion. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224 (Hanson).) As the moving party, the employer defendant bears "the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors." (Serri, supra, 226 Cal.App.4th at p. 861, italics added.) If the employer meets its initial burden, the burden then shifts to the employee plaintiff. (Ibid.) Where the employer negates an element of the employee's prima facie case, the employee must present substantial evidence establishing a triable issue of fact on that element. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202-203.) Where the employer established a legitimate nondiscriminatory reason for the adverse employment action, the employee must "'demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.'" (Serri, at p. 861.)

We review the trial court's decision to grant summary judgment de novo. We are not bound by the trial court's stated rationale, but independently determine whether the record supports the trial court's conclusion as a matter of law. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 161 (Wills).) "'[T]he evidence must be incapable of supporting a judgment for the losing party in order to validate the summary judgment. Thus even though it may appear that a trial court took a "reasonable" view of the evidence, a summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law in the circumstances presented.'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877.) B. Hoag Was Not Entitled to Summary Adjudication on Clark's FEHA Claims

1. FEHA

FEHA prohibits a number of unlawful employment practices. Its express purpose is "'to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons.'" (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 583 (Soria).) "'[B]ecause the FEHA is remedial legislation, which declares "[t]he opportunity to seek, obtain and hold employment without discrimination" to be a civil right [citation], and expresses a legislative policy that it is necessary to protect and safeguard that right [citation], the court[s] must construe the FEHA broadly, not . . . restrictively.'" (Soria, at p. 583.)

Clark alleges Hoag engaged in three unlawful employment practices that violated FEHA: (1) physical disability, mental disability, and medical condition discrimination (§ 12940, subd. (a)); (2) failure to reasonably accommodate a known condition or disability (§ 12940, subd. (m)); and (3) failure to engage in the interactive process to determine a reasonable accommodation for a known condition or disability (§ 12940, subd. (n)). As explained below, the existence of a reasonable accommodation that would allow Clark to perform the essential functions of her job is central to each of Clark's FEHA claims and Hoag's challenges to those claims. Nonetheless, each of these unlawful employment practices gives rise to a separate, independent cause of action under FEHA. (Swanson, supra, 232 Cal.App.4th at pp. 963-964; A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 463-464 (Albertsons).) We therefore separately address each cause of action despite their overlap.

2. Clark's FEHA Discrimination Claim

In her first cause of action, Clark alleges Hoag unlawfully discriminated against her by refusing to extend her leave of absence and terminating her employment when she failed to return to work by Hoag's July 2012 deadline. Hoag challenges this claim on two grounds, both of which rely on the same underlying premise: when Hoag discharged Clark, she was unable to perform the essential functions of her job even with reasonable accommodations. According to Hoag, Clark's inability to perform her job not only negates an essential element of her prima facie case, it also constitutes a legitimate nondiscriminatory reason for discharging her. Hoag failed to support its contentions with sufficient evidence or authority to meet its initial summary judgment burden.

FEHA makes it an unlawful employment practice for an employer to discharge or discriminate against an employee based on the employee's physical disability, mental disability, or medical condition, unless the disability or condition prevents the employee from performing his or her essential duties even with reasonable accommodations. (§ 12940, subd. (a); Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) The essential elements of an employee's prima facie case for disability discrimination therefore includes the employee's ability to perform the essential functions of his or her job with or without reasonable accommodations. The other elements are that the employee suffered from a disability and was subjected to an adverse employment action because of the disability. (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.)

A reasonable accommodation is any "'modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.'" (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010 (Scotch); Cal. Code Regs., tit. 2, § 11065, subd. (p)(1).) Some examples of a reasonable accommodation include a modified work schedule, reassignment to a vacant position, additional training, and assistive aids and services. (See, e.g., Hanson, supra, 74 Cal.App.4th at pp. 225-226; Cal. Code Regs., tit. 2, § 11065, subd. (p)(2) [listing other examples].) "'[A]n employer is not required to offer an accommodation that is likely to be futile because, even with accommodation, the employee could not safely and efficiently perform the essential functions of the job.'" (Hanson, at p. 226.)

Granting or extending a medical or other leave of absence also may be a reasonable accommodation. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263 (Jensen) ["Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation"]; Hanson, supra, 74 Cal.App.4th at p. 226 ["reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment"].) A leave of absence is a reasonable accommodation if it is likely the employee would be able to perform her essential job duties at the conclusion of the leave. (Hanson, at p. 226.) The FEHA implementing regulations explain, "When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the [Family and Medical Leave Act (29 U.S.C. § 2601 et seq.; FMLA)], other leave laws, or an employer's leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer." (Cal. Code Regs., tit. 2, § 11068, subd. (c).)

Whether it is reasonable to grant or extend a leave of absence is a question of fact that turns on the individualized circumstances of the particular employee and employer involved. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 (Prilliman); Nunes v. Wal-Mart Stores, Inc. (9th Cir. 1999) 164 F.3d 1243, 1247 (Nunes).) In general, FEHA does not require an employer to wait indefinitely for an employee's condition to improve (Hanson, supra, 74 Cal.App.4th at pp. 226-227), nor does FEHA require an employer to provide repeated leaves of absence for an employee with a poor prognosis for recovery (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 988 (Nadaf-Rahrov)). But even an extended leave of absence or an extension of an existing leave may constitute a reasonable accommodation if it is likely to enable the employee to return to work and does not pose an undue hardship on the employer. (Nunes, at p. 1247; see Nadaf-Rahrov, at p. 988; Cal. Code Regs., tit. 2, § 11068, subd. (c).) For example, in Hanson, the court concluded extending an injured employee's medical leave eight times, and providing an additional seven months of leave beyond the nine months required by the applicable collective bargaining agreement, was a reasonable accommodation because there was no showing the employee did not have a good prognosis for recovery when the leave began or that the leave extensions imposed an undue hardship on the employer. (Hanson, at pp. 220, 227; see Nadaf-Rahrov, at p. 968 [reasonable accommodation to extend leave of absence until open position became available].)

"'Resort to federal case law is particularly appropriate in connection with the duty to make reasonable accommodation because the provisions of the state regulations defining "reasonable accommodation" under the FEHA are virtually identical to language of the [Americans with Disabilities Act (42 U.S.C. § 12101 et seq.; (ADA)] reiterated in the regulations implementing that federal statute.'" (Swanson, supra, 232 Cal.App.4th at p. 969, fn. 3; see Wills, supra, 195 Cal.App.4th at p. 161 ["'Inasmuch as the FEHA and the interpretative regulations in California Code of Regulations were modeled on [ADA and the Rehabilitation Act], decisions interpreting those laws may be useful in deciding cases under the FEHA'"].)

Because extending a leave of absence may be a reasonable accommodation, the question posed by Hoag's attack on Clark's disability discrimination claim is not whether Clark could perform the essential functions of her job when Hoag terminated her employment in July 2012. Rather, the critical question is whether Clark likely would have been able to perform her essential job functions by late August 2012 if Hoag had extended her leave of absence another five weeks as requested by the July 12 letter from Clark's psychologist. (Nunes, supra, 164 F.3d at pp. 1246-1247.) At trial, Clark will bear the burden to establish the likelihood she would have been able to perform her essential job functions at the conclusion of the extended leave, but Hoag bears the initial burden on summary judgment to negate that likelihood. (Prilliman, supra, 53 Cal.App.4th at p. 952.)

To meet that burden, Hoag submitted the July 12 letter from Clark's psychologist and four progress reports the psychologist prepared concerning Clark's condition. According to Hoag, these documents showed Clark was "completely disabled through January 31, 2013," and therefore was unable to perform her essential job functions even with reasonable accommodations when Hoag discharged her in July 2012. These documents fail to satisfy Hoag's initial burden.

The July 12 letter simply states Clark is "totally and temporarily disabled effective today, until August 20, 2012," her ability to work will be reevaluated at that time, and Hoag should contact the psychologist if it has any questions about Clark's condition. Nothing in the letter suggests Clark would not be able to perform her essential job functions after the psychologist reevaluated her in August 2012, and Hoag did nothing to inquire about Clark's prognosis or condition after receiving the July 12 letter.

The four progress reports rely on evaluations of Clark that her psychologist performed after Hoag terminated Clark's employment. The final report states Clark "has been instructed to [¶] remain off work until [January 31, 2013]," but neither this report nor any of the other three explains why the psychologist instructed Clark to remain off work beyond the August date identified in the July 12 letter. Clark claims she "expected" to return to work in late August after her reevaluation because she diligently had been following her psychologist's instructions and was feeling better, but when Hoag terminated her employment her condition deteriorated, leaving her unable to work because it caused her to feel "worthless, discarded, depressed and embarrassed." These reports do not address the impact of Hoag's decision to terminate Clark on her mental condition and ability to return to work, and therefore they do not satisfy Hoag's initial burden to show extending Clark's leave to late August 2012 was not likely to allow her to return to work and perform her essential job functions if Hoag had not terminated her.

Each of these reports includes handwritten notations about Clark and her condition, but they are largely illegible and Hoag provides no testimony or other evidence to explain what these notations say.

Hoag denies the July 12 letter requested to extend Clark's leave, and also contends any extension the letter sought was an indefinite extension that Hoag had no obligation to provide. According to Hoag, the letter did not expressly request an extension, it gave no assurances Clark would be able to return to work when the purported extension expired, and Clark presented no evidence to show she would be able to return to work at the end of the extension. These arguments misconstrue the evidence, the law, and Hoag's summary judgment burden.

Although Hoag now contends the July 12 letter was not a request to extend Clark's leave of absence, Hoag's human resources representatives who received the letter and made the decision to discharge Clark testified that they interpreted the letter as a request to extend Clark's leave to August 20, 2012, not simply as a notice Clark remained unable to work or a request for an indefinite leave of absence. If Hoag was uncertain about Clark's prognosis for recovery or whether the letter sought to extend Clark's leave, the onus was on Hoag to seek clarification from Clark or her psychologist, as we explain below in discussing Clark's interactive process claim. (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 988-989; Prilliman, supra, 53 Cal.App.4th at pp. 948-949.)

Moreover, uncertainty about when an employee's condition will permit her to return to work does not necessarily make a request to extend a leave of absence an indefinite leave request. (Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000) 212 F.3d 638, 648 (Garcia-Ayala) ["Some employees, by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, but that does not necessarily make a request for leave to a particular date indefinite"].) "Each case must be scrutinized on its own facts. An unvarying requirement for definiteness again departs from the need for individual factual evaluation." (Ibid.)

Although we conclude the trial court erred in granting Hoag summary adjudication on Clark's discrimination claim, we reach that conclusion solely based on Hoag's failure to meet its initial burden to show extending Clark's leave to August 2012 was not a reasonable accommodation that likely would have allowed Clark to perform her essential job functions when that extension expired. We express no opinion on the factual question whether extending the leave actually was a reasonable accommodation.

The dissent suggests we should have applied the "'likelihood of return' standard" to determine whether further extending Clark's leave of absence constitutes a reasonable accommodation. (Dissent at p. 3.) That suggestion perplexes us. The foregoing discussion makes clear that extending Clark's leave may be a reasonable accommodation only if it is likely Clark would have been able to perform her essential job functions at the end of her extended leave. Our disagreement with the dissent apparently centers on who bears the burden of proof on the likelihood of return issue. The dissent concludes extending Clark's leave was not a reasonable accommodation because she failed to present sufficient evidence to establish the likelihood she could perform her essential job functions if Hoag had further extended her leave. The dissent, however, fails to recognize this case is before us on a summary judgment. As explained above, Hoag bore the initial burden to negate Clark's claim by showing there was no likelihood Clark would be able to return to work at the end of her extended leave. Hoag simply failed to meet that burden.

We also do not address whether granting Clark an extension would be an undue hardship for Hoag that would excuse it from doing so. Undue hardship is an affirmative defense (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 356), and Hoag did not rely on that defense or present any evidence to support it on the summary judgment motion.

3. Clark's FEHA Claim For Failure to Reasonably Accommodate

Clark alleges Hoag violated FEHA by failing to reasonably accommodate her condition because it refused to extend her leave of absence to give her additional time to recover. Hoag contends this claim fails because it reasonably accommodated Clark by providing her more than seven months of leave. Hoag again misconstrues the governing standards and fails to present sufficient evidence to meet its initial burden.

Under FEHA, an employer's "fail[ure] to make reasonable accommodation for the known physical or mental disability of an applicant or employee" is an unlawful employment practice. (§ 12940, subd. (m).) As explained above, a reasonable accommodation is any modification to the workplace that enables an employee to perform his or her essential job functions (Scotch, supra, 173 Cal.App.4th at p. 1010), and may include granting or extending a leave of absence (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 968; Hanson, supra, 74 Cal.App.4th at p. 227; Cal. Code Regs., tit. 2, § 11068, subd. (c)).

An employer's duty to accommodate a disabled employee is an affirmative and continuing duty that is not necessarily satisfied by a single effort or accommodation. (Swanson, supra, 232 Cal.App.4th at p. 969; Cal. Code Regs., tit. 2, § 11068.) A single failure to make a reasonable accommodation can support a cause of action even where an employer had a pattern or history of successfully accommodating the employee. (Albertsons, supra, 178 Cal.App.4th at pp. 457-458, 464-465 [employer liable for single instance of failing to accommodate employee whose medical condition required frequent bathroom breaks even though employer had continuously accommodated the employee for more than one year].)

The reasonableness of an accommodation is a question of fact that must be decided on a case-by-case basis. (Prilliman, supra, 53 Cal.App.4th at p. 954; Nunes, supra, 164 F.3d at p. 1247.) There are no per se rules that an employer necessarily discharges its ongoing duty to accommodate an employee by providing a leave of any particular length. (See Prilliman, at p. 948 ["'to read into the law a hard and fast rule that its effects stop at some artificial boundary would be to ignore the broad sweep of the law'"].) For example, a request for leave is not necessarily unreasonable under FEHA simply because the leave sought exceeds the amount of leave guaranteed under another law regarding the employee's specific condition. (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1339 [leave for pregnancy related disability that exceeds four months may be reasonable accommodation under FEHA even though California's Pregnancy Disability Leave Law (§ 12945) only guaranteed pregnant employee four months of leave].) Similarly, an employer's own leave policy cannot artificially limit the amount of leave FEHA requires an employer to provide a particular employee as a reasonable accommodation. (See Garcia-Ayala, supra, 212 F.3d at p. 646 ["The company's apparent position that the ADA can never impose an obligation on a company to grant an accommodation beyond the leave allowed under the company's own leave policy is flatly wrong under our precedent"].)

Here, it is undisputed Hoag provided Clark seven and a half months of leave, and that amount of leave exceeded what was required by the CFRA and Hoag's own leave of absence policy. Those facts, however, are insufficient to satisfy Hoag's initial summary judgment burden when the evidence also shows Clark's psychologist asked Hoag to further extend Clark's leave.

To meet its initial summary judgment burden, Hoag had to present evidence showing it was unreasonable to further extend Clark's leave beyond the seven and a half months already provided. (Swanson, supra, 232 Cal.App.4th at pp. 970-971.) To do so, Hoag could have presented evidence showing it was not likely Clark would have been able to return to work and perform her essential job functions even after Hoag extended Clark's leave. As explained above, the evidence Hoag presented failed to make that showing. The trial court therefore erred in granting summary adjudication on Clark's failure to accommodate claim.

To be clear, we do not suggest Hoag was required to provide Clark an indefinite or open-ended leave of absence. Rather, we merely reaffirm there is no firm and fast rule about the amount of leave an employer must provide to reasonably accommodate an employee under FEHA, and Hoag failed to show the extended leave Clark sought was unreasonable under these circumstances.

The dissent cites Markowitz v. United Parcel Service, Inc. (C.D.Cal. 2016) 2016 WL 3598728, as a case involving "indistinguishable circumstances" that led a United States District Court to conclude the employer defendant reasonably accommodated the employee plaintiff. (Dissent at p. 4.) Markowitz, however, is distinguishable based on its circumstances. The Markowitz court emphasized the employee's termination was not an "automatic termination" based on her leave of absence reached a certain length. (Markowitz, at p. *7.) Rather, the court explained the employer had presented evidence showing it considered the employee's case on an individualized basis and determined it was unlikely the employee would be able to return to work in the near future. (Ibid.) In contrast, Hoag automatically terminated Clark because her leave exceeded the amount authorized by Hoag's leave policy. Hoag did not conduct any individualized assessment concerning Clark's ability to return to work in the near future even though its human resources representatives acknowledged Clark sought a five-week extension of her leave. Moreover, we note an appeal in Markowitz is pending in the Ninth Circuit Court of Appeals. (Case No. 16-56083, filed July 29, 2016.)

4. Clark's FEHA Claim for Failure to Engage in the Interactive Process

Clark alleges Hoag also violated FEHA by failing to engage in the interactive process to identify a reasonable accommodation because Hoag responded to her psychologist's July 12 request to extend Clark's leave by terminating her employment rather than discussing Clark's prognosis and limitations with either her or her psychologist. Hoag contends this claim fails because Clark neither identified nor requested a further reasonable accommodation after Hoag provided her seven and a half months of leave. Hoag again failed to meet its initial summary judgment burden.

Under FEHA, it is an unlawful employment practice for an employer to "fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." (§ 12940, subd. (n).) "Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perform his or her job effectively [citation], an employer's failure to properly engage in the process is separate from the failure to reasonably accommodate an employee's disability and gives rise to an independent cause of action." (Swanson, supra, 232 Cal.App.4th at p. 971.)

"The employee must initiate the process unless his or her disability and the resulting limitations are obvious." (Swanson, supra, 232 Cal.App.4th at p. 971.) "An employee is not required to specifically invoke the protections of FEHA or speak any '"magic words"' in order to effectively request an accommodation under the statute. [Citations.] However, the employee must engage in the interactive process and '"'can't expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.'"'" (Soria, supra, 5 Cal.App.5th at p. 598; Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252 (Avila) ["no particular form of request is required"].)

"Once the interactive process is initiated, the employer's obligation to engage in the process in good faith is continuous. '[T]he employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.'" (Scotch, supra, 173 Cal.App.4th at p. 1013.) "'[T]he fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability . . . . If the employer is responsible for a later breakdown in the process, it may be held liable.'" (Swanson, supra, 232 Cal.App.4th at p. 972, quoting Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 985.)

"'Both employer and employee have the obligation "to keep communications open" and neither has "a right to obstruct the process." [Citation.] "Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith."'" (Swanson, supra, 232 Cal.App.4th at pp. 971-972.) "Thus, 'the employer cannot prevail on summary judgment . . . unless it establishes through undisputed facts that . . . the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.'" (Soria, supra, 5 Cal.App.5th at p. 598; see Jensen, supra, 85 Cal.App.4th at p. 263.)

As explained above, Hoag asserts the July 12 letter from Clark's psychologist was not a request to reasonably accommodate Clark's condition by extending her leave of absence. The letter stated Clark "was totally and temporarily disabled effective today, until August 20, 2012, at which time she will be re-evaluated to determine her work status. [¶] If you have any questions please call my office . . . ." The evidence showed Clark's psychologist sent this letter directly to Hoag at Clark's request after Hoag had sent Clark a letter explaining she must return to work or lose her job because she had exhausted her leave under Hoag's leave of absence policy. The evidence belies Hoag's claim the letter was not a request for an accommodation. Hoag's human resources representatives who received the letter testified they understood it as a request to extend Clark's leave to August 20, 2012, but they nonetheless terminated Clark's employment without contacting her or her psychologist because she had exhausted the amount of leave granted by Hoag's leave of absence policy. Hoag presented no evidence to show it otherwise understood the letter as anything other than a request to extend Clark's leave.

The dissent concludes the letter from Clark's psychologist was not a request for accommodation because it did not expressly request more time off or any other accommodation. The dissent acknowledges that Hoag's human resources representatives interpreted the letter as a request to extend Clark's leave for five weeks, but dismisses that testimony as subjective speculation and legally inadequate to require Hoag to engage in the interactive process. (Dissent at p. 1.) We fail to see what is speculative about Hoag's admission. The testimony of Hoag's human resources representatives establishes that a reasonable trier of fact could interpret the psychologist's letter as an accommodation request, and therefore there is a triable issue of fact precluding summary judgment. Perhaps a jury could reach the same conclusion as the dissent, but we may not do so on summary judgment.

Hoag also contends it had no obligation to follow up with Clark or her psychologist after receiving the July 12 letter because it already had provided her more leave than its leave of absence policy required, and FEHA does not impose an endless duty on employers to engage in the interactive process. Hoag misconstrues the governing legal standards. As explained, an employer's leave policy may not allow the employer to reject an employee's extension request if the request was a reasonable accommodation under FEHA. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 968; Hanson, supra, 74 Cal.App.4th at p. 227; Cal. Code Regs., tit. 2, § 11068, subd. (c); Garcia-Ayala, supra, 212 F.3d at p. 646.) Rather, what constitutes a reasonable accommodation is a factual question to be determined on a case-by-case basis. (Prilliman, supra, 53 Cal.App.4th at p. 954; Nunes, supra, 164 F.3d at p. 1247.)

Moreover, Hoag may not unilaterally determine that extending Clark's leave was not a reasonable accommodation without first engaging in the interactive process to determine the reasonableness of that potential accommodation. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 989.) "Although an employer need not provide repeated leaves of absence for an employee who has a poor prognosis of recovery [citation], the mere fact that a medical leave has been repeatedly extended does not necessarily establish that it would continue indefinitely. In some circumstances, an employer may need to consult directly with the employee's physician to determine the employee's medical restrictions and prognosis for improvement or recovery." (Id. at pp. 988-989; see Prilliman, supra, 53 Cal.App.4th at pp. 948-949 ["'An employer, to meet its burden under the Act, may not merely speculate that a suggested accommodation is not feasible. When accommodation is required to enable the employee to perform the essential functions of the job, the employer has a duty to "gather sufficient information from the applicant and qualified experts as needed to determine what accommodations are necessary to enable the applicant to perform the job"'"].)

Citing Allen v. Pacific Bell (9th Cir. 2003) 348 F.3d 1113, the dissent concludes Hoag's duty to engage in the interactive process did not require it to contact either Clark or her psychologist to inquire about Clark's ability to return to work after receiving the psychologist's July 12 letter. According to the dissent, the burden was on Clark to provide Hoag with information about her condition and her ability to return to work. (Dissent at pp. 4-5.) The dissent ignores the foregoing statements in Nadaf-Rahrov and Prilliman. Moreover, Allen is distinguishable because the employer in Allen requested specific medical information from the employee and the employee failed to provide the information. Based on that failure, the Ninth Circuit concluded the employer had no further obligation to engage in the interactive process. (Allen, at p. 1115.) Here, in contrast, Hoag never requested any information from Clark. Hoag's only response to the July 12 letter was to terminate Clark's employment.

Hoag places great emphasis on Hanson, where the Court of Appeal upheld a summary judgment in favor of an employer on an interactive process claim because the employer had reasonably accommodated the employee twice by granting him extended leaves of absence before the employer discharged the employee. Hanson is readily distinguishable. There, before making the decision to discharge the employee, the employer spoke directly with the employee's doctor to obtain clarification about the employee's condition and also spoke with the employee's vocational and rehabilitation specialists to confirm the employee's condition had stabilized and he could not perform the essential functions of the job to which he sought to return. (Hanson, supra, 74 Cal.App.4th at p. 229.) Here, Clark's psychologist invited Hoag to contact her if it had any questions about Clark, but Hoag failed to do so. Instead, without consulting Clark's psychologist or any other expert, Hoag unilaterally concluded it was not likely Clark would be able to perform her essential job functions in the foreseeable future, and terminated her employment. The trial court therefore erred in granting Hoag summary adjudication on this claim. C. Hoag Was Entitled to Summary Adjudication on Clark's CFRA Claims

1. The CFRA

"The CFRA was enacted in 1991 as a state counterpart to the FMLA. Its purpose is to allow employees to take leave from work for certain personal or family medical reasons without jeopardizing their job security." (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 919 (Richey).)

"The CFRA entitles eligible employees to take up to 12 unpaid workweeks in a 12-month period for family care and medical leave to care for their children, parents, or spouses, or to recover from their own serious health condition." (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 487 (Rogers); see § 12945.2, subd. (a).) "After the 12 weeks of CFRA leave expires, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment." (Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 517 (Neisendorf); see § 12945.2, subd. (a); Cal. Code Regs., tit. 2, § 7297.2, subd. (a); Rogers, at p. 487 ["An employee who takes CFRA leave is guaranteed that taking such leave will not result in a loss of job security or other adverse employment actions"].) "An employer[, however,] is not required to reinstate an employee who cannot perform her job duties after the expiration of a protected medical leave." (Rogers, at p. 487.)

"Violations of the CFRA generally fall into two types of claims: (1) 'interference' claims in which an employee alleges that an employer denied or interfered with her substantive rights to protected medical leave,[] and (2) 'retaliation' claims in which an employee alleges that she suffered an adverse employment action for exercising her right to CFRA leave." (Rogers, supra, 198 Cal.App.4th at pp. 487-488; see § 12945.2, subds. (l)(1) & (t); Richey, supra, 60 Cal.4th at p. 920.) Clark alleges both types of claims.

2. Clark's CFRA Interference Claim

Clark contends the trial court erred in granting summary adjudication on her CFRA interference claim because triable issues exist on whether Hoag interfered with her CFRA rights by terminating her employment in July 2012, and by counting Clark's 12 weeks of CFRA leave toward her six months of leave under Hoag's leave of absence policy. Clark overstates her rights under the CFRA.

The essential elements of a CFRA interference claim are "'"(1) the employee's entitlement to CFRA leave rights; and (2) the employer's interference with or denial of those rights."'" (Soria, supra, 5 Cal.App.5th at p. 601.) Hoag's summary judgment motion challenged Clark's ability to establish the second element, arguing Hoag neither interfered with nor denied Clark her CFRA rights because it granted her more leave than the CFRA required and only terminated her employment when she was unable to return to work after that extended period of leave expired. In support, Hoag presented evidence showing it granted Clark more than seven months of leave to recover from her health condition, it asked her to return to work when that extended period expired, Clark responded by asking Hoag to further extend her leave because she remained "totally and temporarily disabled," and Hoag terminated Clark's employment when she was unable to return to work.

This evidence satisfies Hoag's initial burden. "[T]he CFRA's reinstatement right only applies when an employee returns to work on or before the expiration of the 12-week protected leave." (Rogers, supra, 198 Cal.App.4th at p. 488.) An employer does not violate the CFRA "when it fires an employee who is indisputably unable to return to work at the conclusion of the 12-week period of statutory leave." (Neisendorf, supra, 143 Cal.App.4th at p. 518 [no interference with CFRA rights when employer terminated employee who could not return for 14 weeks and then required accommodations to perform job]; see Rogers, at pp. 488-490 [interference claim failed as matter of law when employee did not return to work at conclusion of 12-week leave].)

Clark does not dispute Hoag provided more than seven months of leave and she was unable to return to work when that leave expired. Nonetheless, she contends she presented evidence establishing two triable issues that prevented the trial court from granting summary adjudication on her CFRA interference claim. First, Clark contends a triable issue exists on whether she would have been able to return to work if Hoag had reasonably accommodated her by further extending her leave beyond the seven months it already had provided. Hoag, however, had no obligation to accommodate Clark's condition under the CFRA other than by granting her 12 weeks of leave.

"While an employer's duties under the FEHA include extending reasonable accommodations to an employee if reasonable accommodations will enable the employee to perform his or her essential duties [citation], there is no similar provision in the CFRA requiring an employer to provide reasonable accommodation to an employee returning from CFRA leave." (Neisendorf, supra, 143 Cal.App.4th at p. 517; see id. at p. 518 ["There is no obligation under the CFRA that an employer provide accommodations to an employee in order to allow the employee to return to work within the 12-week period"].) Whether Hoag had a duty to reasonably accommodate Clark by further extending her leave therefore presents a triable issue that prohibits summary adjudication on Clark's FEHA claims, but it does not present a triable issue that prohibits summary adjudication on Clark's CFRA claims.

Next, Clark contends a triable issue exists on whether Hoag interfered with her CFRA rights by counting her 12 weeks of CFRA leave toward the six months of leave provided by Hoag's own leave of absence policy, and then terminating her employment when she exceeded the six months allowed under that policy. Citing Avila, Clark argues the CFRA prohibited Hoag from counting her CFRA leave toward its leave of absence policy, and therefore Hoag interfered with her rights by failing to provide her 12 weeks of CFRA leave plus an additional 6 months of leave under Hoag's leave policy. Clark misconstrues the CFRA and Avila.

Avila explains that the CFRA "prevents employers from counting CFRA leave as absences under a no-fault attendance policy." (Avila, supra, 165 Cal.App.4th at p. 1254.) At issue in Avila was an attendance policy that provided an employee would be terminated if he or she accrued seven or more "'unrecordable'" absences in any rolling 12-month period. (Id. at p. 1244.) The CFRA therefore prevented the employer from counting any absences guaranteed by the CFRA toward the seven allowed under that no-fault policy.

Hoag's policy, however, is a leave of absence policy, not an attendance policy. Hoag's policy provides employees with significantly more leave than the CFRA, and Clark cites no authority that prohibits an employer from counting the 12 weeks guaranteed by the CFRA toward a longer period of leave the employer provides under its own leave policy. Counting Clark's CFRA leave toward the greater amount of leave provided by Hoag's leave policy in no way interferes with or diminishes Clark's CFRA rights. If anything, counting Clark's CFRA leave toward Hoag's leave policy interferes with or diminishes Clark's rights under Hoag's policy, but the CFRA only protects Clark's rights under that legislation, not under Hoag's leave policy.

3. Clark's CFRA Retaliation Claim

Clark contends the trial court erred in granting summary adjudication on her retaliation claim because a triable issue exists on whether Hoag terminated her because she exercised her leave rights under the CFRA. Clark failed to present any evidence to support this contention.

"The elements of a cause of action for retaliation in violation of CFRA are: '"(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA [leave]; (3) the plaintiff exercised her right to take [leave] for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA [leave]."'" (Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 248.) An employer defendant may negate the fourth element of causation by establishing a legitimate, nondiscriminatory reason for its challenged actions. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 264-265; see Rogers, supra, 198 Cal.App.4th at pp. 492-493.)

Hoag sought summary adjudication on this claim by arguing it terminated Clark's employment for the legitimate, nondiscriminatory reason that she could not perform the essential functions of her job even after Hoag provided significantly more leave than required by the CFRA and Hoag's own leave of absence policy. To meet its initial burden, Hoag presented evidence showing it provided Clark seven and a half months of leave, Clark remained disabled and was not capable of performing her essential job functions at the end of that leave, and Hoag terminated Clark's employment because she exceeded the maximum amount of leave allowed under Hoag's leave policy and still could not return to work. This evidence satisfies Hoag's initial burden.

Clark does not dispute those facts. Instead, she contends a triable issue exists because the evidence also shows Hoag terminated her employment without investigating or determining whether Clark could perform her essential job functions with reasonable accommodations, such as extending her leave of absence. Clark's argument lacks merit.

As explained above, the CFRA does not require Hoag to accommodate Clark's condition in any way other than providing her with up to 12 weeks of leave. (Neisendorf, supra, 143 Cal.App.4th at pp. 517-518.) If, at the end of those 12 weeks, Clark is unable to perform the essential functions of her job without accommodations, Hoag is free to terminate her employment without violating the CFRA. (Id. at p. 518.) Hoag's failure or refusal to further accommodate Clark's condition may support a claim under FEHA, but it does not support a claim under the CFRA.

Clark failed to present any evidence showing Hoag terminated her for any reason other than she was unable to perform her job after seven and a half month of leave. Clark's unsupported claim that the reason for her termination is highly disputed is not substantial evidence establishing a triable issue. (See Swanson, supra, 232 Cal.App.4th at p. 965 [employee must present substantial evidence to show employer's stated reasons for adverse employment action were untrue or pretextual].) The trial court therefore properly granted summary adjudication on Clark's CFRA retaliation claim. D. Hoag Was Not Entitled to Summary Adjudication on Clark's Wrongful Termination and Unfair Competition Claims

Clark contends the trial court erred in granting summary adjudication on her claims for wrongful termination in violation of public policy and unfair competition under Business and Professions Code section 17200 et seq. According to Clark, these claims stand or fall with her FEHA claims, and because the trial court erred in granting summary adjudication on her FEHA claims, it also erred in granting summary adjudication on these claims. We agree.

In California, an at-will employee may bring a common law tort claim against her employer for wrongful termination in violation of public policy if it is a substantial and fundamental policy embodied in a statutory or constitutional provision. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158-1159.) FEHA's provisions prohibiting disability and medical condition discrimination embody fundamental and substantial public policies that support a common law claim for wrongful termination in violation of public policy. (Id. at p. 1161; see Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885, 909 [FEHA's age discrimination provision support wrongful termination in violation of public policy claim].)

Similarly, Business and Professions Code section 17200 et seq. defines unfair competition as any unlawful, unfair, or fraudulent business act or practice. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 609-610.) The unlawful practices prong "'"borrows" violations of other laws and treats them as unlawful practices' that the unfair competition law makes independently actionable." (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180; see Graham, at p. 610.) An employee may rely on a violation of FEHA's prohibition against employment discrimination to support a claim for unlawful business practices under Business and Professions Code section 17200 et seq. (Herr v. Nestlé U.S.A., Inc. (2003) 109 Cal.App.4th 779, 789-790.)

Here, the trial court granted Hoag summary adjudication on both of these claims because the court determined there was no FEHA violation to support them once the court summarily adjudicated Clark's FEHA claims in Hoag's favor. As explained above, the court erred in granting Hoag summary adjudication on Clark's FEHA claims. Accordingly, the court also erred in granting Hoag summary adjudication on Clark's wrongful termination and unfair competition claims. (See Avila, supra, 165 Cal.App.4th at p. 1261 [when triable issue exists on underlying statutory claim, triable issue also exists on related wrongful termination in violation of public policy claim].) E. Clark's Entitlement to Emotional Distress Damages May Not Be Decided on Summary Adjudication

The final issue on which Hoag sought summary adjudication was whether Clark's "claim for emotional distress damages fails [as a matter of law]." Hoag argues Clark already recovered these damages through the workers' compensation system and her claim is barred by the exclusivity of the remedies that system provides. The trial court did not reach this issue because it granted Hoag summary judgment based on other issues. We do not reach the merits of this issue because it does not completely dispose of a cause of action, and therefore the trial court lacked authority to decide the issue on summary adjudication.

Code of Civil Procedure section 437c, subdivision (f)(1), allows a trial court to grant a summary adjudication motion "only if it completely disposes of a cause of action, an affirmative defense, a claim for [punitive] damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1); see DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 421 (DeCastro).) A trial court lacks authority to summarily adjudicate any other issue. (Rooz v. Kimmel (1997) 55 Cal.App.4th 573, 593-594; see McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975 ["there can be no summary adjudication of less than an entire cause of action. . . . If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered"]; Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323 [legislative purpose behind Code of Civil Procedure § 437c, subd. (f)(1) is "'to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or defense'"].)

In DeCastro, the plaintiffs sued their former attorneys for legal malpractice seeking $100 million in lost profit damages and several other lesser items of compensatory damages. Because the lost profit damages comprised the vast majority of the plaintiffs' damages, the attorneys moved for summary adjudication on whether the plaintiff could recover lost profits as an element of their damages on a legal malpractice claim. (DeCastro, supra, 47 Cal.App.4th at p. 415.) The Court of Appeal affirmed the trial court's denial of the motion because "Code of Civil Procedure section 437c, subdivision (f)(1), does not permit summary adjudication of a single item of compensatory damage which does not dispose of an entire cause of action." (DeCastro, at p. 422.)

Here, Clark has not alleged a cause of action for emotional distress. Instead, she seeks emotional distress damages as one element of her compensatory damages on every cause of action except her unfair competition claim. The other items of damages Clark seeks include her lost earnings and benefits. Deciding Clark's entitlement to emotional distress damages therefore would not completely dispose of any cause of action, and the trial court lacked authority to decide this issue on Hoag's motion. F. The Trial Court Did Not Abuse Its Discretion in Denying Clark's Discovery Motions and Imposing Monetary Sanctions

When Hoag moved for summary adjudication in 2014, Code of Civil Procedure section 437c, subdivision (s), allowed a party to seek summary adjudication on "a claim for damages other than punitive damages that does not completely dispose of a cause of action" if the parties stipulated to have the trial court decide the issue and the court approved the motion. (Former § 437c, subd. (s).) That subdivision does not apply to Hoag's motion because the parties did not enter into the required stipulation and the trial court did not approve the motion. Subdivision (s) expired under its own terms at the end of 2014, but the Legislature enacted a similar provision as Code of Civil Procedure section 437c, subdivision (t), that became effective January 1, 2016.

Clark also appeals from two trial court orders denying her motions seeking to compel Hoag to provide further responses to certain special and form interrogatories, and imposing monetary sanctions on Clark and her counsel for bringing those unsuccessful motions. Finding no abuse of discretion, we affirm these orders.

"[W]e review the trial court's ruling on a motion to compel discovery for an abuse of discretion, because the trial court is vested with wide statutory discretion to manage discovery." (Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) Similarly, we review the court's decision to impose discovery sanctions for an abuse of discretion. (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435 (Doe).) "Under this standard, a trial court's ruling 'will be sustained on review unless it falls outside the bounds of reason.' [Citation.] We could therefore disagree with the trial court's conclusion, but if the trial court's conclusion was a reasonable exercise of its discretion, we are not free to substitute our discretion for that of the trial court." (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.)

On the first motion, Clark sought to compel Hoag to respond further to three groups of special interrogatories. Interrogatory No. 20 asked Hoag to describe the efforts it took to accommodate Clark after her psychologist's July 12 letter sought to extend her leave of absence. Interrogatory Nos. 21 to 23 sought information about any undue hardship associated with extending Clark's leave beyond July 16, 2012. Hoag responded to these interrogatories by denying Clark asked to extend her leave, and by objecting to Nos. 21 to 23 because they were incomplete hypotheticals that failed to specify the length or type of extension to which they referred. Clark contends the trial court erred in denying her motion because the July 12 letter patently sought an extension, these interrogatories sought relevant information based on Hoag's affirmative defense of undue hardship, and Hoag's responses and objections sought to avoid responding to these interrogatories. The trial court agreed with Hoag. We find no abuse of discretion.

The propounding party's disagreement with the responding party's factual response to an interrogatory is not an appropriate basis for bringing a motion to compel further responses. Although we may agree with Clark that the July 12 letter was a request to extend her leave, Clark may not use a motion to compel further responses to force Hoag to accept her version of the facts. In responding to an interrogatory, a party may assert any version of the facts it chooses, even if the evidence does not support that version. The propounding party's remedy is to use the response to impeach or otherwise discredit the responding party, not to bring a motion to compel a further response. Moreover, Hoag was not required to describe the hardship associated with an unspecified extension of Clark's leave.

Interrogatory Nos. 52 and 53 asked whether Hoag had ever provided leave "beyond what is required under Government Code §12940 et seq., as a reasonable accommodation to any other employees?" Hoag objected that these interrogatories were vague, overbroad, and unintelligible because they did not specify the reason for the leave or which specific statute required the leave. The trial agreed and denied Clark's motion to compel further responses. We again find no abuse of discretion.

These interrogatories fail to identify the specific code section that required the leave to which they refer. FEHA is at sections 12900 to 12996 and requires an employer to reasonably accommodate various physical and mental disabilities. As described above, a leave of absence can be a reasonable accommodation, but FEHA does not require any specific type or length of leave, and the reasonableness of any specific accommodation must be determined on a case-by-case basis. The CFRA is section 12945.2 and requires an employer to provide up to 12 weeks of leave for an employee to recover from certain serious health conditions, but does not require any reasonable accommodations. Hoag cannot respond to these interrogatories without knowing the statute and the specific situation requiring the leave, but Clark did not provide that information.

Interrogatory Nos. 54, 58, and 60 asked Hoag whether it has ever terminated an employee who was on medical leave, who could not return to work after 12 weeks of medical leave, or who was deemed totally and temporarily disabled. Interrogatory Nos. 55, 59, and 61 asked Hoag to identify those employees. Hoag objected that these interrogatories were vague, unduly burdensome, and overbroad because they were not limited to similarly situated employees. Clark contends the trial court erred because so-called "me too" evidence is admissible circumstantial evidence in discrimination cases, and therefore discoverable. She also contends she offered to limit these interrogatories to a five- or seven-year period, but Hoag refused.

"Me too" evidence may be admissible—and therefore discoverable—in discrimination cases if the other employees belong to the same protected class and the circumstances surrounding the employer's treatment of those other employees is sufficiently similar to the employer's treatment of the plaintiff. (Hatai v. Department of Transportation (2013) 214 Cal.App.4th 1287, 1297-1298, disapproved on other grounds in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 115; Johnson v. United Cerebral Palsy/Spastic Children's Foundation (2009) 173 Cal.App.4th 740, 767.) The trial court denied Clark's motion for these interrogatories because they were not limited to similarly situated employees, and therefore were overbroad. We find no abuse of discretion.

Hoag granted Clark well over 30 weeks of leave, or nearly three times the 12 weeks described in these interrogatories, and terminated her employment for the undisputed reason that she exceeded the six months of leave granted by Hoag's leave of absence policy. The scope of these interrogatories are not limited to employees Hoag terminated under similar circumstances, and Clark's offer to limit the time period these interrogatories cover does not address that shortcoming.

On her second motion, Clark sought to compel a further response to a single interrogatory from the general set of form interrogatories. Form interrogatory No. 16.1 asked Hoag if it contended any person other than Hoag or Clark "contributed to the occurrence of the INCIDENT or the injuries or damages claimed by [Clark]," and if so, asked Hoag to provide information about each such contention and person. Clark checked the box that defined the term "incident" as "includ[ing] the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding." Hoag objected that this definition of "incident" rendered the interrogatory vague, ambiguous, and unintelligible in this case. Hoag nonetheless responded that it did not know what injuries Clark purportedly suffered, but any injuries she suffered were caused by Clark and the father of her child. Clark contends the trial court erred because this interrogatory sought information relevant to Hoag's defense that the father of her child contributed to her injuries, and she clarified any ambiguity concerning the incident by limiting it during the meet and confer process to her "'termination from employment by [Hoag].'"

The general set of form interrogatories are designed for cases involving a single event giving rise to a claim, such as an auto accident, slip and fall, or breach of contract. Thus, applying the same definition of incident to other types of cases may render the interrogatories "ambiguous and confusing." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 8:933.8, p. 8F-9.) That is the case here. What is the incident? Is it Clark's termination, Hoag's failure to accommodate her condition, or Hoag's failure to engage in the interactive process? Moreover, how can someone other than Hoag and Clark contribute to those occurrences? Another person potentially could contribute to the injuries Clark allegedly suffered, but it is unclear how another person could contribute to the termination, failure to accommodate, or failure to engage in the interactive process. For the same reasons, Clark's proposed clarification does not eliminate these issues. We therefore find no abuse of discretion.

Finally, on both motions, the trial court imposed monetary sanctions against Clark and her counsel—$2,160 on the special interrogatory motion and $2,700 on the form interrogatory motion. Clark contends the court erred because it imposed the sanctions without finding Clark or her counsel acted without substantial justification or willfully misused discovery. Clark misconstrues the governing standard for imposing monetary sanctions on a motion to compel further discovery.

In granting or denying a motion to compel further discovery responses, the trial court is required to impose monetary sanctions against the losing party unless it finds that party acted with substantial justification or other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.300, subd. (d) ["court shall impose a monetary sanction" (italics added)]; id. at § 2023.030, subd. (a) [same].) The party potentially subject to the sanction bears the burden to establish it acted with substantial justification or other circumstances render imposing the sanction unjust. (Doe, supra, 200 Cal.App.4th at p. 1434; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 8:1964, p. 8M-7.) To do so, the party must show its actions were "clearly reasonable because [they were] well grounded in both law and fact." (Doe, at p. 1434.)

Clark makes no effort to explain how she acted with substantial justification even though the trial court denied both of her motions. Her only arguments relate to the merits of the motions without explaining why she was substantially justified in bringing the motions. That is not sufficient to meet Clark's burden. The trial court therefore did not abuse its discretion in imposing monetary sanctions.

III

DISPOSITION

The judgment is reversed in part and affirmed in part. The judgment is reversed on Clark's FEHA claims for discrimination, failure to reasonably accommodate, and failure to engage in the interactive process. The judgment also is reversed on Clark's claims for wrongful termination in violation of public policy and unfair competition under Business and Professions Code section 17200 et seq. The judgment is affirmed on Clark's CFRA claims for interference and retaliation.

The two discovery orders denying Clark's motions to compel further responses and imposing monetary sanctions against Clark and her counsel are affirmed.

Clark shall recover her costs on appeal.

ARONSON, J. I CONCUR: O'LEARY, P. J. BEDSWORTH, J., concurring and dissenting.

I respectfully dissent. I think my colleagues read too much into the note Clark's therapist wrote after her leave expired, and I think Clark - having done nothing to advance an interactive process - cannot now complain that the hospital should have done more.

I believe the majority opinion misconstrues the therapist's obscure note of July 12, 2012. The note does not request more time. It does not say Clark will be able to return to work by a certain date. It does not suggest or request any accommodation. It does not even intimate Clark is getting better. All it says is that Clark is still not able to return to work, that she will be reevaluated in about five weeks, and that the hospital's phone calls to the therapist will not be refused.

Had the note asked for more time, given some indication Clark was improving, asked about an accommodation, or suggested she might be able to return to work in the foreseeable future, there might have been some obligation for Hoag to continue the interactive process and inquire further. But the note did none of those things, and - most importantly - offered no suggestion Clark was interested in anything but continuation of the status quo. Indeed, Clark never expressed any desire to return to work. She stayed completely mute through the entire seven months.

The majority opinion relies on the subjective interpretation of Hoag human resource representatives who concluded the note might be read as a request to continue Clark's leave for another five weeks. Even if, for sake of argument, such subjective speculation and the HR people's attempt to give Clark the benefit of any conceivable doubt could somehow redound against Hoag, that is still not enough under the law to put the burden on the employer to continue the interactive process under the circumstances of this case. If the employee has been given seven months leave (more than twice the legal standard) and has done nothing but request more (and even that requires a generous stretch), I think the employer is justified in finally just saying no.

The interactive process in this case began the previous December 2011, when Clark requested, and Hoag granted medical leave. As things were left at the time, Clark could not return to work without a release from her health care provider. Hoag continued that process into late June. Then, having given Clark seven months of the six-month leave originally extended, they gave her two more weeks to contact them if she was able to return to work. All they got for their efforts was a terse note from a therapist saying Clark still could not return to work and would be reevaluated in five weeks.

"Not yet; call back later" is not what the law requires of the employee. The interactive process is a two-way street. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266 ["it is the responsibility of both sides to keep communications open and neither side has a right to obstruct the process"].) Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954 (Swanson), emphasizes that courts should look to the "objective circumstances" surrounding any "breakdown in communication," in regard to the interactive process. The Swanson opinion notes liability for the breakdown is on the party "'who fails to participate in good faith.' [Citation.]" (Id. at pp. 971-972.) Here, the objective circumstances show it was Clark who failed to participate in good faith.

Time off for leave is a little different than the more typical reasonable accommodation interactive process cases. When an employee is out on leave because he or she cannot work at all, time off is the only possible reasonable accommodation. And, in a case where an employee is not able to work at all, California case law has, at least until today, been uniform in adhering to a "likelihood of return" standard in evaluating an employer's obligation to provide leave as a reasonable accommodation. (E.g., Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193-1194 (Wilson) [reasonable accommodation can include leave "provided it is likely that, at the end of such leave, the employee will be able to perform his or her employment duties."]; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 (Hanson) [source or likelihood standard cited in Wilson]; accord, Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1059 [employer "had no idea when" credit manager on extended medical leave "might be coming back"].)

The majority relies largely on Nadaf-Rahrov v. Nieman Marcus Group, Inc. (2008) 166 Cal.App.4th 952 (Nadaf-Rahrov) for their conclusion the summary judgment here must be reversed, but I find it inapposite. In that case there was evidence the employee could have done some kind of work at the time of termination, a far cry from our case in which not only was there no such evidence, but the employee had been incommunicado for seven months before an 11th-hour note from her therapist said she was still not able to return to work. In Nadaf-Rahrov, a department store clothes fitter out on leave because of joint pain continually asked the store's human resources manager to do "another job," but the human resources manager relied solely on a doctor's certification saying she could not do any work at all. The underlying problem was the employee's doctor had been inaccurate in filling out his certification. In his declaration opposing the store's summary judgment motion, he said he meant the employee could not work as a fitter at all. (Id. at pp. 965, 986.) The Nadaf-Rahrov court reasoned that the store could not obtain summary judgment because the doctor's declaration showed the employee's total inability to work was a disputed issue of material fact. The Nadaf-Rahrov court said a reasonable trier of fact could find the doctor's certification contained "overstatements," (id. at p. 966) particularly in light of the doctor's own notes saying the employee could do "'other jobs'" (id. at p. 965). In this case, Clark presented no evidence that her psychologist may have said "totally" disabled but only meant "totally disabled for her old job," which is the Nadaf-Rahrov situation. Clark presented only her therapist's note and the goodwill of her employer's HR people in trying to interpret the note.

This is a scenario that contrasts with the majority of interactive process-reasonable accommodation cases which involve employees who can do some kind of work, just not at the job they had been doing under the circumstances under which they had been doing it. (E.g., Swanson, supra, 232 Cal.App.4th 359 [school district could have offered elementary school teacher recovering from breast cancer surgery assignment in less stressful second grade rather than having her teach forcing her to teach more stressful and germ-ridden kindergarten]; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 [metal fitter with back injury could have worked as a fabricator]; Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344 [accounting supervisor with degenerative disc disease could have done sedentary job such as corporate relations manager].)

It is worth noting that what appears at first reading to be the strongest case cited by the majority opinion for its result, Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000) 212 F.3d 638 (Garcia-Ayala), is completely consistent with California's light-at-the-end-of-the-tunnel likelihood of return rule. In Garcia-Ayala, doctors certified that the employee requesting more leave (a breast cancer survivor who underwent an innovative bone marrow transplant procedure) would indeed be able to return to work on a certain date. (Id. at p. 642.) The First Circuit held that the trial court had erred in agreeing with the employer's argument that there had to be "absolute sssurances" the employee would be able to return on that date. (Id. at p. 648.) California of course does not require absolute assurance - our test is reasonable foreseeability, and that was present in Garcia-Ayala, but not here.

I believe Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th 245 expressed the rule quite well: "Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future." (Id. at p. 263, italics added.) So Hoag had offered reasonable accommodation, received no indication the employee would ever be able to return, had no request for accommodation except the one they had generously read into the therapist's note and is now faulted for not "reaching out" to the employee. As Judge Guilford, confronted with indistinguishable circumstances, put it, "[B]oth parties agree that 'a finite 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.' [(Hanson, supra, 74 Cal.App.4th at p. 226.)] The FMLA guarantees twelve weeks. UPS provided Markowitz more than twelve months. How much more did Markowitz want? It's not clear. . . . At the time Markowitz was terminated, there was no sign that it was any more 'likely that at the end of the leave, [she] would be able to perform . . . her duties' than it was when the leave began." (Markowitz v. United Parcel Service, Inc. (C.D.Cal. 2016) 2016 WL 3598728 at p. *7.)

Clark herself never contacted the hospital during the seven months of her leave.

The same is true of our case. I am unable to agree with the majority that Hoag's attempt to guess what Clark wanted put the "onus" on it to inquire further after receiving the therapist's note. Under the circumstances here, the burden was logically on Clark to give Hoag some indication she could return in the foreseeable future, not on Hoag to speculate as to what she wanted and what might happen after an evaluation five weeks into the future. Particularly when it comes to medical information uniquely in the possession of the employee out on leave, the burden of coming forward and showing information that the employee can return to do some kind of work is on the employee. (Allen v. Pacific Bell (9th Cir. 2003) 348 F.3d 1113.)

In Allen, a phone company service technician, according to his doctor, became disabled and could only do sedentary work at a desk. The employer searched for an alternative job for him, and while it was searching the employee asked several times to be reinstated into his old service technician job, a job which required climbing poles and ladders. The employer asked for documentation to substantiate his claim his condition had improved. The employee never submitted any such medical evidence and the employee was eventually terminated. Then Ninth Circuit held that the employer did not have duty to "engage in further interactive processes with respect" to the service technician job. (Id. at p. 1115.) The burden was properly on the employee to show he could go back to his old job. Likewise, as to possible desk jobs within the company, there was evidence the company worked with the employee's union to find an alternative position, but the employee failed to show up for a keyboard test. Said the court: "Because Allen failed to cooperate in the job-search process, we cannot say that Pacific Bell failed to fulfill its interactive duty." (Id. at p. 1116.) In the present case, Clark's disability was psychological and her ability to return to any kind of work was information which was solely in the possession of her and her therapist. She herself never took part in any job search or accommodation discussion with her employer. --------

My colleagues and I agree on the law to be applied. We just disagree on how to apply it. I would say the hospital did everything it could reasonably be expected to do - certainly all the law requires - and more. So I must respectfully dissent from the majority opinion to the degree it reverses the judgment on Clark's FEHA claims. In all other respects I concur.

BEDSWORTH, J.


Summaries of

Clark v. Hoag Mem'l Hosp. Presbyterian

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Mar 30, 2017
G051949 (Cal. Ct. App. Mar. 30, 2017)
Case details for

Clark v. Hoag Mem'l Hosp. Presbyterian

Case Details

Full title:ROGENE CLARK, Plaintiff and Appellant, v. HOAG MEMORIAL HOSPITAL…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Mar 30, 2017

Citations

G051949 (Cal. Ct. App. Mar. 30, 2017)