Opinion
G049994
03-10-2017
SHARY SAID, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.
Shary Said, in pro. per., for Plaintiff and Appellant. McCune & Harber, Stephen M. Harber and Jessica O. Gillette for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2011-00530219) OPINION Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed. Shary Said, in pro. per., for Plaintiff and Appellant. McCune & Harber, Stephen M. Harber and Jessica O. Gillette for Defendants and Respondents.
Shary Said appeals from the judgment in favor of the Regents of the University of California (the Regents) and Terry Belmont (collectively referred to as defendants). Despite identifying herself as a volunteer for the University of California, Irvine (UCI), Medical Center (Medical Center), she alleged numerous causes of action (COAs) based on assertions she was an employee. She also stated claims for breach of contract, defamation, and discrimination, among others. Many of the COAs were dismissed on demurrer, and the others were decided against Said on summary judgment.
Technically, Said appealed from the order granting summary judgment, and not the judgment, which was entered after she filed her notice of appeal. But after receiving Said's notice of appeal, we asked for and received from her a copy of the final judgment. We shall deem the appeal to be taken from the judgment.
Said challenges the rulings on the demurrers and summary judgment motions, as well as those on discovery issues, motions to continue the hearing on the motions for summary judgment, and ex parte applications. Having considered all of the issues raised by Said in her opening brief, we conclude no error occurred and affirm the judgment. We decline to address any contentions made for the first time in her reply brief or that conflict with her arguments asserted in her opening brief, as we consider them forfeited. (See Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1426.)
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal involves review of multiple orders, we provide a factual and procedural overview of the entire action in this section. For this purpose, we note that although Said filed an amended complaint a few days after filing her original complaint in December 2011, she ignores the amended complaint and refers to the second amended complaint (SAC) as the first amended complaint, the third amended complaint (TAC) as the SAC, and the fourth amended complaint (FAC) as the TAC. We shall use the appropriate titles. Further information relevant to the orders under review will be set forth in our discussion of the issues, post.
On the evening of December 5, 2010, Said was volunteering in the emergency department of the Medical Center when patients filled all three of the critical trauma bays. Joy Po, the Medical Center's emergency department nurse educator, determined there were too many people present and told all volunteers including Said to leave. Said refused, stating the volunteer guidelines allowed her to stay.
Two days later, nurse Marla Gain dismissed Said as an emergency room volunteer due to her defiance of Po's order. Gain suggested Said talk to the volunteer services manager, Valerie Wilcox, to see if a volunteer position was available in another department. Wilcox met with Said that day and told her that she had "exhibited unprofessional and insubordinate conduct." Said disagreed and declined Wilcox's offers of volunteer positions in other areas of the hospital.
On December 16, Said received an e-mail from Douglas Skarecky, a staff member in the urology department, where she had a prior unpaid appointment as a junior specialist. He forwarded an e-mail from emergency services instructing him to contact security if Said did not leave his department when requested and told her "this is not a supportive e[-]mail of."
The next day, Said e-mailed Wilcox for permission to volunteer in another department as Wilcox had previously offered. Said sent another e-mail to her the day after that, apologizing for "bugging [Wilcox] with all these e-mails" and acknowledging she should have left the room when asked to do so and then bring any concerns to the volunteer office afterwards. That same day, Said e-mailed Wilcox that she was "also willing to apologize to anyone you think I should apologize to." On December 19, Said e-mailed Wilcox again, stating she understood the rules and nurses should be obeyed.
Several days later, Said received a letter on behalf of a doctor stating that after reviewing her "information and discuss[ing her] dismissal from [v]olunteer [s]ervices at [the] Medical Center," he could not approve her "to perform clinical observation in [his] oncology practice nor have [her] volunteer in the Young Adult Program." Also in December, Said was terminated from her appointment as an unpaid junior specialist with the department of surgery at UCI, which began September 20, 2010, and had been scheduled to end on June 30, 2011.
On January 22, 2011, Wilcox received an e-mail from Said that she "very much wish[ed] to have reconsideration in this. Let me know if it's possible that we meet, and when you would be available." Due to Said's "numerous e-mails, phone calls, and visits," Wilcox believed Said "was engaging in stalking behavior" and became concerned about her own safety. When Wilcox filed a report with UCI security, she was told "Said was already on security alert following complaints from other departments regarding [Said's] persistence to continue volunteering despite her dismissal."
Belmont, the CEO of the Medical Ccnter, was not involved with Said's volunteer position in the emergency department. His only contact with Said was when she asked him for help in redressing the matter. After looking into the matter, Belmont e-mailed Said that he had decided not to intervene. Said believed Belmont was part of a conspiracy to discriminate against her because she is Middle Eastern and has a Muslim last name. This contention is based on Belmont's position as the CEO of the Medical Center and her belief that "[n]othing happens without his knowledge and permission."
Said initiated this action in December 2011. Following several demurrers and amendments to the complaint, the FAC became the operative complaint. It alleged 17 COAs: (1) defamation and false light; (2) discrimination and wrongful termination; (3) breach of written contract; (4) retaliation (Lab. Code, § 1102.5); (5) retaliation (Gov. Code, § 12940 et seq.); (6) harassment; (7) failure to prevent discrimination and harassment; (8) intentional interference with contractual relations; (9) intentional interference with prospective economic advantage; (10) violation of the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.; Whistleblower Act); (11) wage and hour: failure to reimburse employees for all necessary expenditures or losses incurred; (12) wage and hour: failure to pay minimum wages and expenses; (13) wage and hour: failure to timely pay compensation due and owing to employees, including those who are terminated or resigned; (14) wage and hour: failure to comply with itemized employee wage statement provisions; (15) unfair business practices; (16) violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.; Unruh Act); and (17) violation of Civil Code section 51.5.
Following several demurrers and dismissals, four COAs remained against defendants: defamation and false light, violation of the Whistleblower Act, violation of the Unruh Act, and violation of Civil Code section 51.5. Four additional COAs continued against Belmont individually: breach of written contract, interference with contractual relations, intentional interference with prospective economic advantage, and unfair business practices. Defendants separately moved for summary judgment or alternatively, summary adjudication of issues.
In June 2013, defendants sought a protective order to preclude Said from continuously contacting the Regents' employees and seeking to interview them without the presence of counsel. Said opposed the application but the trial court granted the protective order on June 3, 2013.
On September 5, 2013, this court issued a writ of mandate directing the trial court to set aside and vacate its June 3, 2013, order granting the protective order and to enter a new and different order denying the application for protective order or to show cause before this court. The trial court complied and reset the trial date to April 21, 2014, and the hearing on defendants' summary judgment motions to March 25, 2014.
In January 2014, Said moved to compel the deposition of the Regents' persons most knowledgeable (PMKs). The court denied the motion on January 31. Within the next week, Said filed ex parte applications to compel the depositions of the PMKs and individual witnesses, as well as to continue the summary judgment motions. The court denied the applications in early February. Said then applied ex parte for relief under Code of Civil Procedure section 473, subdivision (b), and for an order shortening time for defendants to serve responses to her additional special interrogatories. The court denied those applications as well.
We shall omit "subdivision" and "subd." from all further statutory references.
In March 2014, Said filed ex parte applications renewing her motion to continue the summary judgment hearing and to compel the deposition of a witness. Again, the court denied the applications. Said thereafter filed her oppositions to defendants' summary judgment motions.
Ultimately, the court granted summary judgment for defendants. On appeal, Said contests all of the above rulings, as well the court's orders sustaining demurrers to the SAC, TAC, and FAC.
DISCUSSION
MOTIONS FOR SUMMARY JUDGMENT
We address the summary judgment rulings first because our determination negates many of Said's claims of error regarding the sustaining of the demurrers.`
Said contends the court erred in granting summary judgment. It did not.. A. Standard of Review
Under Code of Civil Procedure section 437c(c), "summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law." A defendant moving for summary judgment has the burden of showing that "one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c(p)(2).)
A defendant may carry its initial burden by "present[ing] evidence that would require . . . a trier of fact not to find any underlying material fact more likely than not [or] . . . simply point out . . . the plaintiff does not possess, and cannot reasonably obtain, evidence that would allow such a trier of fact to find any underlying material fact more likely than not." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) The burden then shifts to the plaintiff to present evidence showing a triable issue of fact. (Id. at p. 850.) A triable issue of material fact exists if the evidence and its reasonable inferences would allow a reasonable juror to resolve the factual contention in favor of the party opposing summary judgment. (Id. at p. 856.) We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
"On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court[, and] 'to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.'" (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) We "affirm the judgment of the trial court if it is correct on any theory of law applicable to the case, including but not limited to the theory adopted by the trial court . . . [and] so long as any of the grounds urged by [defendants], either here or in the trial court, entitles [them] to summary judgment." (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) B. Evidentiary Objections
Before reaching the merits of the trial court's decision to grant summary judgment in defendants' favor, we address Said's contentions regarding the court's evidentiary rulings. When reviewing an order granting or denying a motion for summary judgment, we "'"consider[] all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.]" (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
Said argues defendants' written objections "must be deemed to have been overruled and even objectionable evidence must be considered on appeal" because the court did not rule on them. Not so. For summary judgment purposes, a "trial court's failure to rule expressly on [a party's] evidentiary objections [does] not waive them on appeal." (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 526 (Reid).) "[I]f the trial court fails to rule expressly on specific evidentiary objections, it is presumed that the objections have been overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal." (Id. at p. 534.)
But here, the court summarily overruled (not sustained as Said claims) Said's written objection to Po's declaration, which Said argued was not signed or dated, in violation of Code of Civil Procedure section 2015.5. Unlike a trial court's failure to expressly rule on evidentiary objections on summary judgment, the standard of review for evidentiary rulings actually made remains unsettled. In Reid, supra, 50 Cal.4th at page 535, the Supreme Court acknowledged but declined to decide whether the trial court's rulings on evidentiary objections in summary judgment proceedings are reviewed de novo or for abuse of discretion. The appellate courts are divided on the issue. (Cf. Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1450-1451 [de novo] with Shugart v. Regents of University of California (2011) 199 Cal.App.4th 499, 505 [abuse of discretion].) But as in Reid, we need not decide the issue because under any standard of review, the trial court properly overruled Said's objection.
Code of Civil Procedure section 1010.6(b)(2)(B) provides, "When a document to be filed requires the signature, under penalty of perjury, of any person, the document shall be deemed to have been signed by that person if filed electronically and if a printed form of the document has been signed by that person before, or on the same day as, the date of filing. The attorney or person filing the document represents, by the act of filing, that the declarant has complied with this section. The attorney or person filing the document shall maintain the printed form of the document bearing the original signature and make it available for review and copying upon the request of the court or any party to the action or proceeding in which it is filed." (Italics added.)
By filing the summary judgment motions electronically, defendants' attorneys represented that Po complied with this statute. Nothing in the record refutes this or shows the attorneys did not maintain the original document or make it available upon request. Thus, even under a de novo standard of review, the trial court did not err in overruling Said's objection to Po's declaration.
On appeal, Said makes the additional argument that Wilcox's declaration should be stricken because "Wilcox was the sole witness of [p]laintiff's alleged harassment." She cites Code of Civil Procedure section 437c(e), which gives the court discretion to deny summary judgment "if the only proof of a material fact offered in support . . . is an affidavit or declaration made by . . . the sole witness to that fact . . . ."
Defendants respond Said failed to raise this issue in the trial court. Said claims she did at the summary judgment hearing and in her opposing separate statement. But the one page of the reporter's transcript cited by Said makes no mention of Wilcox and the court overruled all objections made in her separate statement for failure to comply with California Rules of Court, rule 3.1350. In any event, Said provides no reasoned argument as to how the court abused its discretion in presumably overruling this specific objection (Reid, supra, 50 Cal.4th at p. 534), thereby forfeiting the point on appeal (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie)).
Turing now turn to Said's arguments, we address the claims against both defendants before proceeding to the individual ones against Belmont. C. Merits of Individual COAs
1. Defamation and False Light
a. The Regents
On the COA for defamation and false light, the court ruled the Regents was entitled to the common interest privilege under Civil Code section 47(c). Said argues this was error because the Regents "never established any of the elements of [Code of Civil Procedure, section] 47(c)." the privilege. She is incorrect.
"We refer to 'the Regents' in the singular because the California Constitution created a 'corporation known as 'The Regents of the University of California,'" a singular noun. (Cal. Const., art. IX, § 9, subd. (a).)" (De Vries v. Regents of University of California (2016) 6 Cal.App.5th 574, 580, fn. 2.)
"The tort of defamation 'involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.' [Citation.]" (Taus v. Loftus (2007) 40 Cal.4th 683, 720 (Taus).) The elements of a "false light" invasion of privacy claim are identical. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 277 (Hawran).)
Civil Code section 47(c), provides a qualified privilege in defamation actions for publications made "[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information." This common interest privilege has been held to apply to "[c]ommunications made in a commercial setting relating to the conduct of an employee" (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995), "statements by management and coworkers to other coworkers explaining why an employer disciplined an employee" (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538), and "uncomplimentary comments" or other statements made about the qualifications of a former or alleged employee to a prospective employer (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369 (Noel)).
A shifting burden is used to determine whether the common interest privilege applies. A defendant asserting the privilege "generally bears the initial burden of establishing that the statement in question was made on a privileged occasion, and thereafter the burden shifts to plaintiff to establish that the statement was made with malice. [Citation.]" (Taus, supra, 40 Cal.4th at p. 721; Lundquist v. Ruesser (1994) 7 Cal.4th 1193, 1210-1214 (Lundquist).) Whether the privilege arises is ordinarily a question of law. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 108, disapproved on another ground in Baral v. Schnitt (2016) 1 Cal.5th 376, 395; Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1119 (Hui).)
(i) The Regents' Burden to Show the Privilege Applies
The FAC alleged defendants falsely communicated to employees at the Medical Center and UCI Medical School that she "had been stalking others," "thrown out" of the emergency room, "interrupting business," "returning to departments that she was not part of to work/volunteer," and "harassing teachers at the UCI Medical School," as well as that she "deserve[d] to be on security alert," was "a risk," and "should be removed from the premises upon sighting."
In its moving papers, the Regents relied on these allegations to argue that Said's own complaint alleged "false statements were communicated to . . . Medical Center staff, security officers, and department heads both verbally and in e-mails. All of the statements purportedly involved [her] conduct and separation from UCI as a volunteer, as well as conduct that followed her 'dismissal[.']"
The Regents also presented Po's and Wilcox's declarations and e-mails confirming all the alleged communications related to Said's conduct, the disciplinary and security measures taken, and her subsequent conduct. Po described Said's refusal to leave the emergency bay when she asked her to do so and how Said insisted the volunteer guidelines entitled her to stay. Wilcox declared she was afraid for her safety and believed Said was engaged in stalking behavior based on Said's multitude of e-mails, phone calls, and requests to meet. And when Wilcox went to file a report, UCI security told her an alert had already been placed on Said due to complaints from other departments about her "persistence to continue volunteering despite her dismissal."
Said has not identified any external, non-Regents affiliated third parties to whom those statements were communicated and who might have understood them to have a defamatory meaning. Her own complaint shows otherwise and she has not claimed there were any statements made about her that arose on an occasion falling outside the scope of the common interest privilege. Said herself alleged the communications between the Regents and "others at the . . . Medical Center and the UCI Medical School" were made "within the scope of their employment."
We conclude the communications "were of a kind reasonably calculated to protect or further a common interest of both the communicator and the recipient." (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 847 (Deaile).) The Regents thus met its obligation to show the complained of communications fell within the common-interest privilege. The burden thus shifted to Said to show malice. (Taus, supra, 40 Cal.4th at p. 721; Lundquist, supra, 7 Cal.4th at p. 1208.)
Said also asserts the fact she offered to apologize for her behavior in the emergency room does not support the court's conclusion the alleged defamatory statements were privileged. She misunderstands the court's ruling. The court cited Said's apology as evidence the statements were not made with malice and thus were subject to the privilege under Civil Code section 47(c).
(ii) Said's Burden to Show Malice
Said maintains the Regents "never established . . . the element of non-malice." But that was not the Regents' burden. It was Said's.
Malice may not be inferred from the mere fact of the communication. (Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1558.) "'"The malice necessary to defeat a qualified privilege is 'actual malice' which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiffs rights [citations]."'" (Taus, supra, 40 Cal.4th at p. 721; Hui, supra, 222 Cal.App.4th at p. 1121.) This standard of malice focuses solely on the defendant's subjective state of mind at the time of publication and requires more than mere negligence or even "'gross or . . . extreme negligence.'" (Sutter Health v. UNITE HERE (2010) 186 Cal.App.4th 1193, 1210, 1211; Noel, supra, 113 Cal.App.4th at p. 1371 [unintentional error does not constitute malice].)
Said argues the issue of malice for purposes of a qualified privilege "is a question of fact for a jury." To the extent Said is arguing that summary judgment is never appropriate when the viability of a defamation COA turns on the presence or absence of malice to defeat the Civil Code section 47(c) privilege, she is incorrect. On a motion for summary judgment where the opposing party "raise[s] no facts from which . . . malice could reasonably be inferred" and "the facts alleged to give rise to the privilege are undisputed," "the applicability of the common-interest privilege provision is a question of law." (Noel, supra, 113 Cal.App.4th at p. 1372.)
The cases cited by Said are distinguishable because they contained facts from which malice could reasonably be inferred. (See Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 435 ["ample evidence" of actual malice in case involving public figure included lack of "'hot news' element," "little or no investigation," and ulterior motive], disapproved on another ground in McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846, fn. 9; McMann v. Wadler (1961) 189 Cal.App.2d 124, 129 ["evidence of prior defamation of similar import in this case was sufficient to justify submission of the question [of malice] to the jury"].) Said presented no such facts.
In the trial court, Said argued malice could be inferred because the Regents and its "employees knew that the statements . . . were untrue," "tried to conceal the false communications from" her, overpublished the communications by e-mail to over 100 individuals, and sent e-mails and communications to individuals at the Medical Center [who] had no legitimate interest to know, and . . . to individuals [who] were not even on the original recipient list, such as . . . security officers . . . [and] risk management." These claims lack either factual or legal support and do not give rise to an inference of malice.
(a) Knowledge the Statements Were Untrue
Said contends the Regents lacked reasonable grounds for believing the statements were true because its moving papers argued that "after [her] alleged conduct [i.e., harassing UCI employees "by sending e-mails, calling and visiting [them] to repeatedly discuss her situation"], she was "'[c]onsequently' placed on security alert." According to Said, "the BOLO [be on the lookout notice], reporting [her] to risk management and security, and sending out the mass e-mail, [were] all done prior to [her] alleged harassment" and the Regents "failed to explain how the publishers believed in the truth of their defamatory publications when [her] conduct occurred after and not prior to their allegedly privileged statements."
But an argument made in a motion is not the same as evidence. "' Evidence' means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." (Evid. Code, § 140.) "Statements and arguments by counsel are not evidence." (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139.) Thus, we do not consider the wording used by the Regents in evaluating Said's claim. Because Said cites no actual or implied evidence showing the Regents employees did not believe in the truth of their statements, no inference of malice arises from this theory.
(b) Concealment of False Communications
Next, Said asserts the Regents' attempt to hide the false communications from her demonstrates malice. Her failure to cite any supporting authority for this proposition forfeits it. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
(c) Excessive Publication
Excessive publication may defeat the common interest privilege. (Deaile, supra, 40 Cal.App.3d at p. 847.) Overpublication can occur when a defendant publishes statements "to those with no interest in the business or for any nefarious motives." (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 441-442 (King) [statements were not overpublished where they were "appropriately published to other employees at UPS, all of whom had a common interest in discharging their responsibilities"].)
Said contends that "[p]ublishing an e-mail to over a 100 individuals and departments is over-publication." But the e-mail she cites did not contain any defamatory statement. It simply read, "Per the director of Security, . . . , if . . . Said enters our department and does not leave when requested, please call Security . . . ." The e-mail did not state a provable falsehood. It merely told department members to contact security if Said entered their department and refused to leave. "A viable defamation claim requires the existence of a provable falsehood. [Citations.] '"'Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot "'reasonably [be] interpreted as stating actual facts' about an individual." [Citations.]'" (Hawran, supra, 209 Cal.App.4th at p. 289.)
Additionally, the e-mail was distributed to members of "our department," referring to the emergency department, and then forwarded to members of two other departments with instructions to call security if Said did not leave "your department" when requested. Said has not shown these departments did not have an interest in the subject matter of e-mail. Given Said's failure "to produce any evidence that [the Regents] overpublished statements about [her] to those who with no interest in the business or for any nefarious motives" (King, supra, 152 Cal.App.4th at p. 442), it cannot be said the e-mail "was so widely disseminated as to . . . defeat the privilege's purpose" (Hawran, supra, 209 Cal.App.4th at p. 288).
Said also asserts "posting a BOLO for thousands to see is also" overpublication. But nothing in the BOLO itself states anything defamatory about Said. It reads, "Said [¶] Was previously associated with [v]olunteer [s]ervices and has had her ID badge and privileges to serve as a volunteer revoked. [Said] continues to enter into various departments in the Medical Center to include the Emergency Department. Departments [a]ffected by her unauthorized entry have attempted to tell her to leave to which she ignores the request. [¶] Security may be called to assist in explaining to [Said] that she has no business on property, unless she is seeking medical care or has an appointment, and must leave immediately. If necessary Warn & Advise her of trespassing. No further."
Moreover, the BOLO itself contains no indication it was published to anyone other than security personnel. This view is supported by a subsequent e-mail from the director of security and parking department to security personnel informing them Said was no longer subject to the BOLO but would be allowed at the Medical Center aside from certain departments and the volunteer office. As with the BOLO itself, this e-mail contains no provable falsehood about plaintiff.
Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, cited by Said, did not address the issue of excessive publication. It is thus inapposite.
(d) Other Arguments and Conclusion
In her opening brief, Said raises new theories for inferring malice, i.e., failure to thoroughly investigate and the existence of former disputes and ill feelings against her. We do not consider them. "An argument or theory will . . . not be considered if it is raised for the first time on appeal. [Citation.] Specifically, in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal.' [Citation.]" (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676.)
Absent any showing of malice by Said, the common interest privilege provided the Regents a complete defense against defamation and false light.
b. Belmont
As to Belmont, the trial court determined the defamation and false light cause of action lacked merit because there was no evidence he made any defamatory statement. Said asserts this was error because "[i]t is not enough that Belmont merely 'alleges' that there is no evidence that he defamed [her] or that he was involved in defaming her." But that is not what Belmont did.
Belmont presented affirmative evidence showing he had no part in Said's volunteer position at the Medical Center or the incidents giving rise to the lawsuit, and his only contacts with Said all had to do with her request for help to address her issues. Wilcox provided a supporting declaration attesting Belmont was not a party to the service agreement allowing Said to work as a volunteer in the emergency room, and was not involved in Said's volunteer position. Attached to Wilcox's declaration were e-mails showing Said spoke in person with Belmont about the incident on January 11, 2011, sent a follow-up e-mail that day, and another one on the 20th. Belmont sent a reply e-mail on the 22nd stating he had looked into the matter but decided not to intervene because he thought "appropriate actions were taken." He invited Said to contact Wilcox if she desired reconsideration. In her deposition, Said admitted these were her only communications with Belmont and her allegations against Belmont were based on his position as the Medical Ccnter's CEO plus her belief "nothing happens without his permission or knowledge." These facts satisfied Belmont's initial burden on the defamation claim, and the burden shifted to Said to demonstrate a triable issue of material fact. She failed to do so.
An issue of material fact is created only by a conflict of evidence, not by speculation, conjecture, conclusory assertions, or mere possibilities. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 166 (Yuzon).) "The purpose of summary judgment is to separate those cases in which there are material issues of fact meriting a trial from those in which there are no such issues." (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) Said presented only assertions (including claims she did not understand the stated fact) and possibilities, which are insufficient to create a triable issue. The only disputed fact supported by evidence relates to Belmont being the CEO of the Medical Center. Said disputed this fact, claiming he also oversaw "UCI's Level I trauma center." But that has nothing to do with whether Belmont made a defamatory statement about Said. Absent any triable issue, Belmont was entitled to summary adjudication of this COA as a matter of law.
2. Violation of Whistleblower Act
The trial court ruled the violation of the Whistleblower Act COA lacked merit because defendants established Said was not their employee. Said contends defendants never made this showing. We disagree
The Whistleblower Act (Gov. Code, § 8547 et seq.) "prohibits retaliation against state employees who 'report waste, fraud, abuse of authority, violation of law, or threat to public health.' [Citation.]" (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 882.) It "authorizes a state employee who is the victim of whistleblower retaliation to bring 'an action for damages' in superior court [citation] . . . ." (State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 968.) Under the Whistleblower Act, "'Employee' means an individual appointed by the Governor, or employed or holding office in a state agency . . . ." (Gov. Code, § 8547.2(a), italics added.) Government Code section 8547.2(f) defines a "'State agency'" as "includ[ing] the University of California." But while UCI, which "is administered by the Regents" (Uriell v. Regents of University of California (2015) 234 Cal.App.4th 735, 738), fits within the statutory definition of a "state agency," the question remains whether it "employed" Said.
Defendants assert Said "was a volunteer only. At no time did [she] receive any compensation from [t]he Regents in exchange for providing volunteer services in various departments at the . . . Medical Center." Belmont's moving papers added that, "[t]he absence of remuneration (i.e., pay or substantial financial benefits such as health insurance, vacation pay, sick pay or retirement benefits in exchange for work) prevents a volunteer worker from attaining 'employee status' under FEHA," citing Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 636-637 (Mendoza). Mendoza held that a disabled school volunteer was not an employee under FEHA, where he "concede[d] that his position was unpaid, and does not allege that he received any other type of financial benefit he might have received, such as health, insurance, or retirement benefits. [Citation.]" (Id. at p. 637.)
Defendants presented evidence Said's position as a junior specialist was unpaid, no one ever told her the position would turn into a paid position, and she never received monetary compensation from UCI. In her oppositions to defendants' motions, Said claimed she "was an employee according to the statute of FEHA for the purpose of Gov[ernment] Code [section] 8547," relying on Labor Code section 3357 and Mendoza. Said argued, "while [she] did not receive monetary compensation, she did receive other forms of compensation or 'remuneration'" in the form of three free vaccines and the possibility of employment as a physician as a result of her research. In its order granting summary judgment, the trial court distinguished Labor Code section 3357 as relating to Workers' Compensation and Mendoza because it did not involve the Whistleblower Act.
Labor Code section 3357 states, for Workers' Compensation purposes, "Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee."
Notably, Labor Code section 3352(i) expressly excludes a public agency volunteer "who does not receive remuneration for the services, other than meals, transportation, lodging, or reimbursement for incidental expenses" from receiving workers' compensation coverage. (See Mendoza, supra, 128 Cal.App.4th at p. 635.)
In her opening brief, Said ignores Labor Code section 3357 and argues her receipt of "free vaccines etc. . . . is not relevant," as she had brought it up with regard "to her employment status under FEHA." She also agreed with the trial court that Mendoza is inapplicable. Said summarily asserts she "fit[s] the definition of an employee . . . since she was an employee of the Regents, . . . a state government entity." But calling herself an employee does not make it so.
Absent any persuasive guidance from the parties as to whether Said was employed by defendants, we look to Mendoza. Mendoza may have involved the definition of an employee under FEHA, but its analysis is nevertheless instructive on the question before us. Because FEHA did not clearly define who qualifies as an employee for its purposes, Mendoza looked to the definition of "employee" in regulations promulgated by the California Department of Fair Employment and Housing (DFEH), which defines "an employee as '[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.' (Cal. Code Regs., tit. 2, § 7286.5, subd. (b).)" (Mendoza, supra, 128 Cal.App.4th at p. 632.) "Thus, on its face, the FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices." (Id. at p. 633.)
Nevertheless, Mendoza rejected plaintiff's assertion he was an employee under this definition "because he was 'appointed' to his volunteer position." (Mendoza, supra, 128 Cal.App.4th at p. 633.) Mendoza explained, "even if he could meet one of these definitional standards, the absence of remuneration prevents him from attaining 'employee' status under the FEHA." (Id. at p. 637.) The same applies here. Accordingly, we need not address Said's claim she was an employee because she "had an official employment appointment letter with both departments" (i.e., surgery and urology) and a "contract of hire."
Mendoza found it "instructive to look to federal law." (Mendoza, supra, 128 Cal.App.4th at p. 635.) "Title VII [of the Civil Rights Act of 1964 (42 U.S.C. § 2000e; title VII] succinctly defines 'employee' as an 'individual employed by an employer.' [Citation.] The first prong of the title VII test in determining if someone is an employee requires the plaintiff to prove he or she was hired by the putative employer. [Citation.] . . . [T]o satisfy the hiring prong, a purported employee must establish the existence of remuneration, in some form, in exchange for work. [Citation.]" (Id. at pp. 635-636.)
Other jurisdictions also have held individuals who are not compensated for their services are not employees for purposes of title VII and similar statutes. (See, e.g., Juino v. Livingston Parish Fire Dist. No. 5 (5th Cir. 2013) 717 F.3d 431, 439 (Juino) [adopting "threshold-remuneration test" because it is "uniquely suited to assessing a plausible employment relationship within the volunteer context"]; O'Connor v. Davis (2nd Cir. 1997) 126 F.3d 112, 115-116 [unpaid intern]; Graves v. Women's Professional Rodeo Ass'n., Inc. (8th Cir. 1990) 907 F.2d 71, 72-73 [unpaid association members]; Keller v. Niskayuna Consol. Fire Dist. 1 (N.D.N.Y. 1999) 51 F.Supp.2d 223, 232 (Keller) [volunteer firefighters]; City of Fort Calhoun v. Collins (Neb. 1993) 500 N.W.2d 822, 826 [volunteer firefighters].)
Mendoza recognized "substantial indirect compensation can satisfy the threshold requirement of remuneration for purposes of employee status under title VII. If not direct salary, substantial benefits which are not merely incidental to the activity performed, such as health insurance, vacation or sick pay, are indicia of employment status. [Citation.]" (Mendoza, supra, 128 Cal.App.4th at p. 636, italics and fn. omitted.) The court concluded plaintiff was not an employee for FEHA purposes because he was unpaid and his complaint did not mention the receipt any substantial indirect compensation. (Id. at p. 637.)
Before arriving at this decision, Mendoza noted the "volunteer firefighters in Pietras v. Board of Fire Com'rs of Farmingville (2d Cir. 1999) 180 F.3d 468 [(Pietras)] were entitled to employee status, in part, based on their receipt of significant benefits, such as disability pensions, survivors' benefits, group life insurance, and scholarships for dependent children of deceased firefighters. [Citation.]" (Mendoza, supra, 128 Cal.App.4th at p. 636, fn. omitted.)
In like manner, Haavistola v. Community Fire Co. of Rising Sun (4th Cir. 1993) 6 F.3d 211 (Haavistola) reversed a summary judgment after determining factual issues existed regarding whether a volunteer firefighter was an employee. Although she was not paid monetary compensation, she received a "state-funded disability pension, [citation]; survivors' benefits for dependents, [citations]; scholarships for dependents upon disability or death, [citations]; bestowal of a state flag to family upon death in the line of duty, [citation]; benefits under the Federal Public Safety Officers' Benefits Act when on duty, [citation]; group life insurance, [citation]; tuition reimbursement for courses in emergency medical and fire service techniques, [citation]; coverage under Maryland's Workers Compensation Act, [citation]; tax-exemptions for unreimbursed travel expenses, [citation]; ability to purchase, without paying extra fees, a special commemorative registration plate for private vehicles, [citation]; and access to a method by which she may obtain certification as a paramedic. [Citation.]" (Id. at p. 221, fn. omitted.) The court concluded it was up to the trier of fact to decide "whether the benefits represent indirect but significant remuneration . . . or inconsequential incidents of an otherwise gratuitous relationship . . . ." (Id. at p. 222.)
By contrast, in Keller, supra, 51 F.Supp.2d 223, the only benefit provided to the volunteer firefighters was participation in a service awards program, which conferred a financial benefit upon reaching a certain age if the volunteer accumulated a specified amount of service credit. (Id. at p. 231.) Keller found the service awards program did "not provide a guarantee of consideration for the work performed" because a volunteer might perform work but not accumulate the requisite amount of service credit and therefore receive nothing. (Id. at p. 232.) Because the volunteers did not receive compensation for their work, the court concluded they were not employees. (Ibid.)
Similarly, in Juino, the volunteer firefighter suing for sexual harassment received $78 for responding to 39 calls, "a life insurance policy, a uniform and badge, and emergency/first responders' training." (Juino, supra, 717 F.3d at p. 439.) Juino held these benefits were "unlike the significant indirect benefits received by the volunteer firefighters in Haavistola and Pietras," and "as a matter of law" plaintiff "was not an 'employee' for purposes of Title VII because she has failed to make a threshold showing of remuneration." (Id. at pp. 439, 440.)
We shall apply the remuneration test here to determine whether Said was an employee of defendants. Said admitted she received no monetary compensation at any time from either defendant. That leaves the question of whether her research and three vaccines qualify as "substantial indirect compensation." (Mendoza, supra, 128 Cal.App.4th at p. 636.) They do not. As in Keller, Said's claimed benefit of her research possibly leading to medical school and becoming a doctor did "not provide a guarantee of consideration for the work performed" (Keller, supra, 51 F.Supp.2d at p. 232) because it might never happen, in which case she would therefore "receive nothing." (Ibid.) In any event, the theoretical possibility of doctorhood and the receipt of three free vaccines are far removed from the benefits received, yet still found inadequate in Juino. As such, they do not qualify as substantial indirect compensation. For the above reasons, we conclude Said was not defendants' employee "as a matter of law." (Juino, supra, 717 F.3d at p. 440.) The court correctly granted summary adjudication on the Whistleblower Act COA.
3. Violation of Unruh Act (Civ . Code, § 51)
The Unruh Act entitles all Californians "to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever" regardless of "their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status." (Civ. Code, § 51(b).)
The trial court determined the Unruh Act "does not apply to employer-employee relationships." Said failed to address this aspect of the court's ruling in her opening brief thereby forfeiting any argument on this ground. (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1237 [affirming based on defendant's failure to address on appeal independent bases justifying trial court's ruling].)
In any event, the court was correct. The Unruh Act does not apply to "the subject of discrimination in employment." (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500 (Alcorn); see Rojo v. Kliger (1990) 52 Cal.3d 65, 77.) We are bound by this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Said's opening brief makes clear her allegations are all employment related. Among other things, she argues there are triable issues regarding whether she performed her job duties satisfactorily, acted insubordinately on the job, harassed others about her job, and was validly terminated. Because the Unruh Act does not apply to such claims, the COA fails as a matter of law as to both defendants.
Citing the same reasons it did for the Unruh Act COA, the trial court ruled in defendants' favor on the Civil Code section 51.5 claim. Said refers us to her Unruh Act arguments. We reject them again for the reasons just explained.
Civil Code section 51.5(a) requires all "business establishment[s]" not to "discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of [s]ection 51, or of the person's partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers, or customers, because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics."
"Few California cases have construed [Civil Code section 51.5], originally passed in 1976. On its face, [Civil Code section] 51.5, like [Civil Code section] 51, appears to be aimed only at discrimination in relationships similar to the proprietor/customer relationship. All the forbidden acts referred to except 'discriminate' expressly refer to transactions of a proprietor/customer sort. Indeed, at least one California court has noted that [Civil Code section] 51.5 is an expansion upon [Civil Code section] 51. [Citation.] . . . Interpreting this provision consistently with [Civil Code section] 51, we hold that [a plaintiff], as either a partner or employee, cannot bring a claim under [Civil Code section] 51.5." (Strother v. S. Cal. Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 875 [applying California law to grant summary judgment on plaintiff's claims under both Civil Code sections 51 & 51.1]; see Semler v. General Electric Capital Corp. (2011) 196 Cal.App.4th 1380, 1404 ["the analysis under Civil Code section 51.5 is the same as the analysis . . . set forth for [Civil Code section 51]. This conclusion is compelled by the plain language of Civil Code section 51.5—which parallels that of [Civil Code section 51]—and the section's legislative history"].) We agree with Strother and Semler and conclude Civil Code section 51.5 does not apply to Said's employment-related claims. Summary adjudication was proper on this COA.
5. Breach of Contract (Belmont)
Said does not challenge the court's ruling on her COA for breach of contract against Belmont. She has thus forfeited any challenge to that ruling. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 ["[a]lthough . . . review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in [appellants'] brief"].)
6. Intentional Interference with Contractual Relations & Intentional Interference with Prospective Economic Advantage (Belmont)
Both intentional interference with contractual relations and intentional interference with prospective economic advantage require an intentional act by the defendant designed to induce a breach or disruption of the relationship. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 & fn. 2 (Pacific Gas); Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39, 51 (Popescu).) The court determined there was no evidence Belmont engaged in any intentional acts to disrupt contractual relations or a prospective economic relationship. Said contends this was error. According to her, the evidence cited by the court "don't establish that Belmont did not interfere with such. Belmont presented no evidence or even alleged that he didn't disrupt such relationships. Belmont also never argued that [she] wouldn't be able to obtain such evidence to prove her claim. So Belmont failed to carry his burden, and therefore there was no burden to shift to [her]." Said is incorrect.
To carry his initial burden, Belmont presented the material facts that (1) he was not involved with Said's volunteer position or "the incidents that are alleged to have resulted in this lawsuit, (2) "the only contact that ever occurred between [him] and [Said] occurred when subsequent to these events, [Said] sought redress with the upper management of [the] Medical Center . . . , including the CEO's office," and (3) Said's claims against him were based solely on his position as CEO of the Medical Center and her belief "nothing happens without his permission or knowledge." The last fact alone shows Said's allegations against Belmont are not based on the performance of any intentional act, much less one designed to interrupt any contractual or economic relationship with any third party. That fact is strengthened by the other facts demonstrating his limited contact and involvement with Said. The burden thus shifted to Said to establish a triable issue of material fact.
In her opposition to his motion, Said conceded Belmont was not involved in her position as a volunteer and she had contact with him only once. And without actually disputing the fact, she states she "doesn't understand what defendants are saying [when they stated her claims against him are based on him being the CEO] and the deposition citations that defendants mention do not show that [she] said that." But the statement speaks for itself and the record establishes that, when asked what information she had that Belmont played a role in her "firing," she answered: "[T]he hospital administration is behind what happened and I know . . . Belmont is the leader of that administration. Nothing happens without his knowledge and permission . . . ."
Said also claimed "she never said that Belmont was not involved in the incidents that led to this lawsuit. Belmont didn't have to come in contact with [her] in order for him to have a part in the actions taken against her. There are numerous people including hospital administration staff that have never come in contact with [her] (to the extent that [she] is aware) and they took part in the conspiracy against [her]." No evidence is cited, only her conclusory assertions, speculation and conjecture. Absent a conflict in the evidence, no triable issue of fact was created (Yuzon, supra, 116 Cal.App.4th at p. 166) and the court properly granted summary adjudication on the COAs for intentional interference with contractual relations and prospective economic advantage.
7. Unfair Business Practices (Belmont)
Said asserts the court erred in ruling her unfair business practices claim against Belmont "was . . . disposed of on demurrer." She misconstrues the court's order. In summarily adjudicating this COA, the trial court explained the wrongful conduct alleged in the operative complaint had been disposed of by way of demurrer or summary judgment. As such, it concluded Belmont "sufficiently established that he ha[d] not engaged in any unlawful conduct under the UCL [Unlawful Competition Law]" and "that there [wa]s no evidence of any wrongful conduct by him to support the UCL claim."
Said maintains, "Belmont never established that he didn't violate [Business and Professions Code section] 17200, or that there is no evidence of such" because his moving papers "are silent on this matter." She is mistaken. Belmont cited the same facts and evidence as he did for the intentional interference COAs, showing he had not committed any wrongful act and that all of Said's allegations against him were based on his position as the CEO. Since Said's opposition contained the same deficiencies as it did in response to the intentional interference claims, she failed to raise a triable issue of material fact and again the court's grant of summary adjudication was appropriate.
Because Said failed to raise a triable issue of material fact as to any COA, the court did not err in granting summary judgment as to both defendants.
DEMURRERS
A. Standard of Review
We review de novo the sustaining of a demurrer to a complaint, "'"treat[ing] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a [COA]. [Citation.]' [Citations.] [¶] . . . [¶] On appeal, we will affirm a 'trial court's decision to sustain the demurrer [if it] was correct on any theory' . . . [and] 'we do not review the validity of the trial court's reasoning but only the propriety of the ruling itself. [Citations.]' [Citation.]" (Popescu, supra, 1 Cal.App.5th at p. 50.) B. Employee Status
Said argues equitable estoppel applies to prevent defendants from denying she was their employee. The contention is moot.
When a grant of summary judgment or summary adjudication demonstrates the plaintiff cannot establish an element of a related COA, any error by the court in sustaining a demurrer to the related COA is deemed harmless. (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 664.) Here, in affirming the court's ruling for defendants on the COA for violation of the Whistleblower Act, we concluded Said was not defendants' employee as a matter of law. Although our analysis was for purposes of the Whistleblower Act, it necessarily encompassed FEHA by following the analysis set forth by Mendoza. And with regard to Labor Code section 1102.5, section 1106 of the Labor Code defines "employee" to mean in part "any individual employed by the State or any subdivision thereof," which we have already determined Said is not.
As a result, Said cannot establish any COA requiring employee status, making any error, assuming any occurred, by the court in sustaining a demurrer to such a COA moot. This includes her arguments regarding her COAs for violations of Labor Code section 1102.5, FEHA, California's wage and hour laws, and her unfair business practices claim against the Regents (Bus. & Prof. Code, § 17200), which is based on the Regents' alleged violation of the wage and hour laws.
It also includes her claim regarding her COA for harassment in the FAC. At first glance, Said's argument on appeal regarding harassment does not appear to be a moot issue. She argues she "didn't allege that Belmont's only violation was for inaction as the court inferred, but that he participated in harassment. So the court's ruling was erroneous on those grounds." But upon closer inspection, the harassment COA is one of Said's FEHA claims alleged under Government Code section 12940. The court sustained the demurrer without leave to amend because Said had "failed to allege sufficient facts showing that she is an 'employee' under FEHA." As with the other COAs dependent on her status as an employee, the court's ruling was correct and Said's contentions are moot. C. SAC - Breach of Contract
Said contends the trial court should have granted her leave to amend the breach of contract COA against the Regents. The argument fails.
The trial court correctly sustained the Regents' demurrer to the breach of contract claim in the SAC without leave to amend on the ground "public employment is not held by contract but by statute." "[I]t is well settled in California that public employment is not held by contract but by statute and that, insofar as the duration of such employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law. [Citations.]" (Miller v. State of California (1977) 18 Cal.3d 808, 813-814.)
Said contends this principle does not apply because "the duration of [her] employment d[oes] not conflict with any terms fixed by law." But that puts the cart before the horse. The length of one's employment is immaterial unless one is first employed, and one cannot hold public employment except by statute.
Said also attempts to distinguish Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1432 (Kemmerer), cited by the court, on the basis it involved "the county's civil service regulations . . . that a contract can't circumvent" whereas she is not attempting to "circumvent civil service statutes." Again, she misses the point that public employment in California is governed by statute, not by contract; thus, whether she was attempting to contractually circumvent a statute or not is irrelevant. D. SAC - Intentional Interference with Contractual Relations and Intentional Interference with Prospective Economic Advantage
The trial court sustained without leave to amend the Regents' demurrer to the COAs in the SAC for intentional interference with contractual relations and intentional interference with prospective economic advantage because under Government Code section 815(a), "A public entity is only liable for claims provided by statute." Said argues that under Government Code section 815.2(a), the Regents may be liable for the acts of its employees committed within the within scope of their employment, and she can amend her complaint accordingly. But the only employee Said sought to hold accountable for intentional interferences with contractual relations and prospective economic advantage was Belmont. Given our conclusion above that the court correctly ruled in Belmont's favor on those COAs, any claim of error regarding the demurrer to these COAs is moot, as is Said's request for leave to amend. E. Leave to Amend
When a demurrer is properly sustained on the ground that the complaint fails to state facts sufficient to constitute a COA, and leave to amend is denied, "we decide whether there is a reasonable possibility that the defect can be cured by amendment." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If it can be cured, we reverse; if not, we affirm. (Ibid.) The burden of demonstrating such reasonable possibility lies squarely with the plaintiff. (Ibid.)
Said asserts the trial court "abused its discretion when it sustained seven COA[s] without leave to amend for the FAC" because she is representing herself. Her contention is unavailing. It is well established that "[p]ro. per. litigants are held to the same standards as attorneys. [Citations.]" (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Courts must treat propria persona litigants as any other party, affording them "'the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
Said maintains there are sufficient facts to plead equitable estoppel and promissory estoppel. The equitable estoppel argument is moot and forfeited, as explained above. The promissory estoppel theory is based on Said's claim "[d]efendants promised [her] a position in the department of [s]urgery." But as noted, public employment in California is held solely by statute (Kemmerer, supra, 200 Cal.App.3d at p. 1432.) Such employment cannot be held by contract, much less by promise.
Finally, Said requests leave to amend to add claims under Fair Labor Standards Act of 1938 (29 U.S.C § 203(f); FLSA.) Defendants protest this argument was improperly made for the first time on appeal. But to establish an abuse of discretion regarding the denial of leave to amend, "a plaintiff may propose new facts or theories to show the complaint can be amended to state a [COA] . . . ." (Connerly v. State of California (2014) 229 Cal.App.4th 457, 460.) The "showing need not be made in the trial court so long as it is made to the reviewing court." (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
Even so, Said cannot carry her burden of showing the complaint can be amended to state a FLSA COA. "FLSA . . . generally applies to state employees [citation], and requires the state timely to pay the federally mandated minimum wage rate to nonexempt employees who do not work overtime and timely to pay full salary plus overtime to nonexempt employees who do work overtime. [Citation.]" (Gilb v. Chiang (2010) 186 Cal.App.4th 444, 453, fn. omitted.) Under FLSA, "[t]he term 'employee' does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if - [¶] (i) the individual receives no compensation . . . ; and [¶] (ii) such services are not the same type of services which the individual is employed to perform for such public agency." (29 U.S.C. § 203(4)(A), italics added.) Because it is undisputed Said never received monetary compensation from UCI, a FLSA COA cannot be stated and leave to amend is unwarranted.
DENIAL OF MOTIONS TO COMPEL DEPOSITIONS AND DOCUMENTS
Said next disputes the correctness of the denial of her motions to compel depositions filed in January, February, and March 2014. We perceive no error. A. Standard of Review
"We review a trial court's discovery orders for an abuse of discretion. '"'The trial court's determination will be set aside only when it has been demonstrated that there was "no legal justification" for the order granting or denying the discovery in question.'" [Citation.]' [Citation.] Moreover, when a plaintiff does not seek writ review of the trial court's discovery rulings and instead appeals from the judgment, he or she must 'show not only that the trial court erred, but also that the error was prejudicial'; i.e., the plaintiff must show that it is reasonably probable the ultimate outcome would have been more favorable to the plaintiff had the trial court not erred in the discovery rulings. [Citations.]" (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1045 (MacQuiddy).)
Although Said acknowledges abuse of discretion is the general standard of review, she argues "the discovery orders here involve interpretation of discovery statu[t]es and undisputed facts [and thus] the review by this court should be de novo." The question in this case, however, is whether the trial court abused its discretion in denying Said's motions to compel—a query that does not require statutory interpretation. Moreover, the facts were disputed, not undisputed. Said presented evidence she acted in good faith. Defendants submitted evidence to the contrary. Where, as here, '"the trial court reached its decision after resolving conflicts in the evidence, or inferences that could be drawn from the evidence, we review those factual findings to determine whether they are supported by substantial evidence. [Citation.]' [Citation.]" (Pomona Valley Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 693.)
The cases she cites are inapposite. People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 (Shamrock) involved interpretation of a non-discovery statute, i.e., whether "Section 32912 of the Food and Agricultural Code . . . , one of the provisions of the Milk and Milk Products Act of 1947, adopted the less stringent federal standards of identity for milk and milk products . . . ." (Shamrock, supra, at p. 421.) And Garamendi v. Executive Life Ins. Co. (1993) 17 Cal.App.4th 504 concerned the construction of a statute to determine whether a preliminary injunction should be granted or denied; under that circumstance, "the matter is purely a question of law, the standard of review is not whether discretion was appropriately exercised, but whether the statute was correctly construed." (Id. at p. 512.) This case, in contrast, does not involve the interpretation of any statute. B. January Order Denying Motion to Compel
Said contends the court erred in denying her January motion to compel PMK depositions because she made a good faith effort to meet and confer, she was not required "to meet and confer over every issue that might arise in the deposition" but only to contact the opponents, the witnesses were required to appear at the scheduled depositions absent a protective order, and she was denied "all" discovery. We disagree.
1. Background
In September 2013, defendants served objections to Said's initial PMK deposition notice, noting deficiencies in, among other things, her designation categories. They wrote to Said on November 7, referring her to those objections and repeating that "alternative dates will be provided to plaintiff once plaintiff provides proper PM[K] designation categories. Currently, as noted in the objections . . . , the designation categories are unintelligible, compound, ambiguous, overbroad, not proper subjects for deposition, burdensome and harassing to the extent that [d]efendants are left to speculate as to the exact category of PM[K] plaintiff is seeking to depose."
Instead of decreasing the scope of her PMK designation categories, Said increased them from 86 to 127. Despite that, defendants proposed a date for the depositions of two PMKs, Wilcox and Po. But Said served the PMK deposition notices too late and the date became unavailable.
By December 31, Said was seeking the depositions of three PMKs and served three separate PMK notices, which she continued to amend. Her final deposition notices for the three PMKs totaled 170 pages and increased the PMK categories from 616 to 829. Said then served amendments to the PMK 2 deposition notice, adding even more categories. Said denied she made any significant changes.
Defendants wrote to Said to inform her they "are not refusing to produce PM[K] deponents, and want those depositions to proceed. We are willing to continue our efforts to resolve this matter. However, without efforts on your part to address the deficiencies in your PM[K] deposition notices, [d]efendants do not know which PM[K] to produce for deposition, other than you want to depose everyone at the university." Said responded, "I have nothing to say to you . . . ."
In early January 2014, Said applied ex parte to compel the PMK depositions without limiting the PMK deposition notices. The court denied the application.
Said then filed a 601-page noticed motion to compel. At the hearing on January 28, the court noted "[d]efendants ha[d] served objections to the three [n]otices of [d]eposition . . . ," . . . stated that the voluminous categories (928 designated categories) are 'unintelligible, compound, vague, ambiguous, overbroad, not proper subject for deposition, burdensome, and harassing,' [and] . . . attempted to 'meet and confer' in good faith." Yet, "[b]ased on the documents submitted by [Said, she] continued to amend the categories for deposition and has failed to meaningfully engage in a 'good faith' meet and confer to address the concerns of [d]efendant (i.e., limiting the scope and categories of deposition). Pursuant to [Code of Civil Procedure] [s]ection 2025.450(b)(2), [Said] is required to engage in a meaningful and good faith 'meet and confer.'"
The court ordered the parties to meet and confer in good faith with Temporary Judge Emmett Raitt "to limit and agree on clear and concise categories of deposition. Moreover, as [d]efendant has already agreed to produce . . . Wilcox and . . . Po as the [PMK] for depositions, the parties are to agree on the date and time for those depositions."
On January 28 and 31, Raitt "facilitated two meet and confer sessions" but the parties were unable to reach an agreement. Additionally, at the continued hearing on the 31st, Said "refused [d]efendants' offer to take the depositions of . . . Wilcox and . . . Po." Said indicated that after she discovered Wilcox and Po had submitted "declarations in the motion of summary judgment, [she] really [did] not need to depose them. It is just going to be a waste of time and money for me." As a result, the court denied Said's motion for an order compelling the PMK depositions.
2. Analysis
a. Meet and Confer Efforts
Said contends the court erred in finding she did not she make a good faith effort to meet and confer. But she refers us to no evidence showing she attempted to meet and confer on limiting the scope and categories of the PMK depositions. The parts of the record she cites involve only choosing deposition dates.
The documents attached to Said's own motion shows she continued expanding the categories for the depositions instead of addressing defendants' concerns in good faith. This constitutes substantial evidence to support the court's ruling. And because Said failed to establish '"'"there was 'no legal justification' for the order'"'" (MacQuiddy, supra, 233 Cal.App.4th at p. 1045), we will not disturb the court's ruling.
b. Obligation Only to Contact Opposing Side
Citing Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109 (Leko), Said disputes whether she was required to meet and confer about her PMK categories. She argues her only obligation was "to contact the opposing side and resolve the scheduling problem." But that is not what Leko held.
In Leko, plaintiff's attorney (Pyfrom) argued it was unnecessary for him to attempt to informally resolve the scheduling of a deposition before moving to compel. He relied on former Code of Civil Procedure section 2025(j)(3)(B) (now Code Civ. Proc., § 2025.450(2) [Stats. 2004, ch. 182, § 22, pp. 659-660]), which stated, "a motion to compel attendance 'shall be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by it or, when the deponent fails to attend the deposition . . . by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.' [Citation.]" (Leko, supra, 86 Cal.App.4th at p. 1124, italics added by Leko.) Pyfrom submitted he had met this statute when he sent opposing counsel a blatantly unprofessional letter after she informed him that neither her nor her clients could attend the depositions as scheduled due to an oversight or misunderstanding but "to contact her office to arrange an alternative date." (Id. at p. 1123.)
Leko rejected Pyfrom's argument: "Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue. Here, the failure to appear was due to oversight and opposing counsel expressed a willingness to reschedule the depositions at a mutually convenient date. The trial court did not abuse its discretion when it determined that Pyfrom did not comply with his obligations under Code of Civil Procedure section 2025 . . . (j)(3)(B). [Citation.]" (Leko, supra, 86 Cal.App.4th at p. 1124.) The same applies here. Said had an obligation to "listen" and meet and confer about defendants' concerns regarding the scope and number of categories for the PMK depositions.
c. Requirement of Protective Order
Said argues defendants could not merely object to the deposition notices to avoid appearing at the depositions but were required to obtain a protective order. But all of the statutes she cites are permissive in nature. (See Code Civ. Proc., §§ 2025.440(b) ["If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent . . . sanctions"]; 2025.410(c) ["In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice"]; 2025.420(a) ["any party, any deponent, or any other affected natural person or organization may promptly move for a protective order"].) "It is a well-settled principle of statutory construction that the word 'may' is ordinarily construed as permissive, whereas 'shall' is ordinarily construed as mandatory . . . ." (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 443.) Accordingly, defendants were not obligated to file a motion for a protective order.
d. Denial of All Discovery
At the hearing on January 31, 2014, the trial judge stated that if Raitt could not help the parties arrive at a specific number of depositions and categories, "then I don't have the ability or the time to go through each one of these and determine who is going to be deposed and what categories. That's not my job." Said asked if it was possible for her to give the judge "a copy of [her] most recent revised categories and then . . . continue this until next Monday or Tuesday?" The judge responded it had "600 cases" and "this case has taken more time than any other case I've ever had."
Said asserts this denied her of "'all'" discovery, which was improper under Obregon v. Superior Court (1998) 67 Cal.App.4th 424 (Obregon). Obregon held that "discovery should not be automatically denied" when an effort at informal resolution is found wanting"; "instead the trial court should consider whether it would be more appropriate to specify additional efforts which will be required before the court will turn to the merits of the discovery dispute. . . . Inasmuch as judges are duty bound to manage court calendars with a view to minimizing both delay [citation] and unnecessary expense [Citation], the prospects that further informal efforts would be fruitful should also be considered. . . . [¶] In the instant case we do not know what ultimate resolution would have resulted from application of such considerations, for the trial judge denied the motion simply on the basis that plaintiff's lone letter was an insufficient effort at informal resolution. Hence we will grant plaintiff's writ petition to the extent of directing the trial court to consider the proper remedy for plaintiff's insufficient efforts, and to rule accordingly." (Id. at pp. 434-436, italics added.)
Seizing on the italicized language, Said argues that "while the court ordered a meet and confer, a resolution was not reached, so the court should have turned to the merits of [her] requested discovery." But Obregon does not stand for the proposition a trial court must itself take on the job of going through and determining which persons or categories were appropriate for deposition purposes.
Unlike the "lone letter" in Obregon, here the court did not automatically deny Said's motion to compel based on a single event. As Obregon suggested, the court specified additional efforts—i.e., the meet and confer meetings facilitated by Raitt—before it addressed the merits of the discovery dispute. Having done that and considering its duties of minimizing delay and unnecessary expense as well as the fruitfulness of further meet and confers, the court did not abuse its discretion in reaching the merits of the motion and denying it.
The court also did not deny "all discovery," as Said claims. It ordered the depositions of Wilcox and Po to go forward. Said was the one who said she "will not be able to depose them because they are of no benefit to me." To the extent she claims error based on not being able to depose them, she invited the error. "'Where a party by his conduct induces the commission of the error, he is estopped from asserting it as a ground for reversal' on appeal." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) C. February and March Ex Parte Motions to Compel
1. Background
On January 31, a few hours after the court denied Said's motion to compel the PMK depositions, Said gave defendants notice she would be applying ex parte to compel now five PMK depositions along with individual depositions of Paul Kronheim, Leonard Sender, Shahram Lotfipour, and Nicole Bernal. Said filed the applications on February 6, with the hearing to be held February 7.
Defendants opposed the "421-page ex parte application" to compel the PMK depositions on the ground it was an improper motion for reconsideration of the January 31 order. As to the individual witnesses, defendants argued they had provided alternative dates and times but Said had rejected them.
In her declaration in support of the opposition, defendants' counsel attested Said "demanded additional dates in late February for . . . Lotfipour and restricted the deposition start time to 9 a.m. She claimed that February 12, would not work for . . . Kronheim's deposition, as she does not want to start the deposition at 1:00 p.m., claiming it would not be sufficient time to finish the deposition." Defendants' counsel further explained: "The four deponents have very little involvement in this case. . . . Kronheim had two 1-2 minute conversations with plaintiff, . . . Lotfipour had a brief exchange with plaintiff and . . . Sender had minimal interaction with plaintiff. As to . . . Bernal, plaintiff testified at her deposition that Bernal is a witness to this case because Bernal was working on the night of December 5, 2010, when plaintiff refused to leave the trauma room when asked to leave. However, it was discovered that . . . Bernal never interacted with plaintiff and was not on trauma call the entire week of December 2-8. Accordingly, her deposition is not calculated to lead to the discovery of relevant or admissible evidence, and is unduly burdensome and harassing."
The court denied the ex parte applications on February 7. Said petitioned for a writs of mandate and requested a stay of the January 31 and February 7 rulings. This court denied both petitions.
Subsequently, on March 6, Said again applied ex parte to compel Lotfipour's deposition. Defendants filed opposition, arguing it was an improper motion for reconsideration of the court's February ruling on Said's motion to compel, and that they had provided dates to Said but she had rejected them.
On March 7, the trial court denied all of the ex parte applications stating, "I've never had a case with more ex parties in my 25 years." It threatened to impose sanctions if Said again brought "an ex parte that has been brought before" because "you can't do this trial by ex parte. . . . You have had almost two years to do this case and you are bringing everything at the last minute."
2. Analysis
Said presents no argument concerning the February 7 denial of her ex parte application to compel the PMK depositions. And her sole assertion of error as to the denial of the ex parte application to compel the depositions of the individual witnesses is that "[t]here was good reason to depose Sender, Lotfipour, and Bernal."
By failing to make any argument as to Kronheim, Said forfeited any claims as to him.
Essentially, Said is asking us to reweigh the evidence. In denying Said's ex parte applications, the trial court implicitly found a lack of good cause to grant them. Such a "determination is generally reviewed deferentially, solely for abuse of discretion." (Robinson v. U-Haul Company of California (2016) 4 Cal.App.5th 304, 327; Munroe v. Los Angeles County Civil Service Com. (2009) 173 Cal.App.4th 1295, 1303 [county agency's lack of good cause finding for late filing of administrative appeal entitled to deference].) Abuse of discretion is not shown "by merely arguing that a different ruling would have been better. Discretion is abused only when in its exercise, the trial court 'exceeds the bounds of reason, all of the circumstances before it being considered.'" (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.) Said does not argue that occurred. In any event, defendants' counsel's declaration provides ample evidence to support the court's order such that it cannot be said to it exceed the bounds of reason.
Because we conclude the trial court did not abuse its discretion in denying Said's motions to compel depositions, we need not address the issue of prejudice. While Said is correct discovery should be liberally granted, she must seek it in the proper manner as the trial court noted. And on appeal, she must carry her burden to show the court abused its discretion. She failed to do so.
DENIAL OF MOTIONS TO CONTINUE SUMMARY JUDGMENT MOTIONS
Said contends the court abused its discretion in denying her motion and renewed motion for a continuance of the summary judgment hearing. It did not. A. Background
On February 6, in addition to filing her ex parte applications to compel depositions, Said applied ex parte to continue the hearing on defendants' summary judgment motions. Defendants opposed the application, arguing Said had not shown good cause given that her complaint was filed on September 26, 2012, and trial had already been continued once before from the original trial date of November 12, 2013, to April 21, 2014. The court summarily denied the application on February 7.
On March 6, concurrently with her renewed ex parte application to compel Lotfipour's deposition, Said "renewed" her ex parte application to continue the summary judgment hearing date. In their opposition, defendants asserted they had been improperly served, the application was an improper motion for reconsideration of the February 7 ruling, and no good cause had been shown. The court denied this application as well. B. Analysis
Code of Civil Procedure section 437c(h) provides, in relevant part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or may make any other order as may be just." This provision "mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion. [Citations.]" (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254 (Cooksey).) "It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated." (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)
A declaration to support a request for continuance under Code of Civil Procedure section 473c(h) must show: "(1) 'Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion'; (2) 'The specific reasons why such evidence cannot be presented at the present time'; (3) 'An estimate of the time necessary to obtain such evidence'; and (4) 'The specific steps or procedures the opposing party intends to utilize to obtain such evidence.' [Citation.]" (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 (Johnson)). A continuance is not mandatory when no adequate affidavit has been submitted. (Cooksey, supra, 123 Cal.App.4th at pp. 253-254.) We review the denial of a continuance on these grounds for an abuse of discretion. (Ibid.)
Said's declaration in support of her first ex parte application stated that "due to [d]efendants' stalling of the discovery process" she "has not been able to complete the necessary discovery" to oppose defendants' summary judgment motions. She needed to question and depose unnamed witnesses, some of whom were "essential and . . . key witnesses." "[F]or strategic reasons," however, she asserted she could not "depose the individual witnesses until she depose[d] the PMK[s] which she is diligently working on as the court is aware," referring to her ex parte application to compel the PMK depositions.
Nothing in Said's declaration identified the specific facts to be obtained, or showed a likelihood, as opposed to pure speculation, the undisclosed witnesses would have information necessary to oppose summary judgment. Based on this deficiency alone, the court did not abuse its discretion in denying her request for a continuance. (See Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 263.)
Said claims that under Code of Civil Procedure section 1008(b), she was entitled to bring a "renewed motion to continue [the summary judgment motions] after she was in fact not able to obtain the necessary facts to oppose the motion." But Code of Civil Procedure section 1008(b), requires that a renewal motion be supported with new or different facts, circumstances, or law, and an affidavit or declaration giving a satisfactory explanation for having failed to produce the new or different facts, circumstances, or law at the original hearing. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 383.) Trial courts are jurisdictionally barred from considering a renewal motion that fails to comply with the requirements of Code of Civil Procedure section 1008. (Ibid.; Code Civ. Proc., § 1008(e).)
Said's declaration in support of her "renewed" application identified two "'essential' witnesses" she needed to depose—Lotfipour and Chennault. She stated "the different circumstances are that [she] was in fact not able and will not be able to depose at least two essential witnesses in this case before she files her opposition to summary judgment, which is due exactly [three] days from the hearing of this motion." But this mirrors her claim in her original request for a continuance, i.e., that she needed to depose "essential" witnesses. The fact she actually named the two witnesses she desired to depose in her renewal motion changes nothing given her failure to explain why she did not identify them in her first application.
Because Said's motion did not satisfy the requirements of Code of Civil Procedure section 1008(b), the court was barred from considering it. It follows that no abuse of discretion occurred. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
DENIAL OF MOTION FOR CODE OF CIVIL PROCEDURE SECTION 473 RELIEF
AND ORDER SHORTENING TIME FOR DEFENDANTS TO SERVE RESPONSES TO
ADDITIONAL INTERROGATORIES
Said argues the court erred in denying her ex parte applications, filed February 24, 2014, for (1) relief under Code of Civil Procedure section 473(b) to file a motion to compel further responses to interrogatories, and (2) for an order shortening the time for defendants to serve responses to additional interrogatories. No error occurred.
A motion for relief from a judgment, order, or other proceeding may be made on the ground that it was taken against the moving party as a result of mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473(b).) Whether to grant relief lies within the sound discretion of the trial court. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute on other grounds as described in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 978-980.) Discretionary relief under this statute is "applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations] In such situations 'very slight evidence will be required to justify a court in setting aside the default.' [Citations.]" (Ibid., italics added.) Because the law favors trial on the merits, doubts are to be resolved in favor of the party seeking relief. Thus, orders denying relief are more closely scrutinized on appeal than an order permitting trial on the merits. (Ibid.)
Said contends these policies should be applied in her favor because her "only option" was to obtain written discovery. In her Code of Civil Procedure section 473(b) application, Said explained that when she filed a motion to have defendants verify their responses, they stated "further responses are not possible because the 45-day deadline had passed." For that reason, when she received their "verification, she didn't bother filing a motion to compel further responses," thinking "it would probably be a lot fast to obtain answers to her interrogatories through questions at depositions." The problem was "defendants have been refusing to appear at depositions." Written discovery was "the only way [she] will be able to gather 'any' information from defendants since the court already denied her motions to compel deposition testimony and defendants instructed their employees not to come into contact with her.
Defendants provided Said with both written discovery and deposition dates with enough time to prepare her opposition, but she did not file a timely motion to compel further responses or accept the deposition dates provided. Despite being told the 45-day to file a motion to compel further responses had passed, Said intentionally did not make a Code of Civil Procedure section 473 motion within the six-month period allowed under the statute, opting instead to seek answers at depositions. That this strategy did not work out does not constitute surprise, inadvertence, surprise, or excusable neglect.
These facts distinguish this case from Berman v. Klassman (1971) 17 Cal.App.3d 900, Outdoor Imports, Inc. v. Stanoff (1970) 7 Cal.App.3d 518, and DeMello v. DeMello (1954) 124 Cal.App.2d 135, in which Said claims relief was granted under Code of Civil Procedure section 473 "even when there were no excuses, or it was past the 6-month deadline." In any event, the mere fact the courts in these cases found relief appropriate does not demonstrate the trial court in this case abused its discretion. Said did not move promptly to seek relief or show defendants would not be prejudiced if the application were granted at this late stage (one month before the discovery cut-off date and two months before the already continued trial). No abuse of discretion occurred.
As to her request for an order shortening time for defendants to serve their responses to additional special interrogatories, Said merely recites the facts from her application and argues its denial was an abuse of discretion. Inasmuch as she relies on the same facts as in her application for relief under Code of Civil Procedure section 473(b), we reject it for the same reasons just discussed.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
O'LEARY, P. J. WE CONCUR: MOORE, J. ARONSON, J.