Opinion
D057583
01-03-2012
LUIS M. TORRES et al., Plaintiffs and Appellants, v. SCRIPPS HEALTH, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2008-00099564-CU-OE-SC)
APPEAL from a judgment of the Superior Court of San Diego County, William S. Cannon, Judge. Affirmed.
Plaintiffs and appellants Luis Torres, Martel Mesina, Burdella Thomas, David McElroy, Sheryl Greenaway, Carol Vrooman, and Milagros Fontillas appeal from a summary judgment entered in favor of Scripps Health (Scripps) after the trial court denied their motion for relief from its order that Scripps's discovery requests for admission be deemed admitted, and granted summary judgment based on those admissions. Plaintiffs contend the court erred by: (1) granting Scripps's ex parte application to continue the trial and pretrial deadlines so as to permit it to file a motion for summary judgment; (2) denying plaintiffs' motion under Code of Civil Proceduresections 473 and 2033 for relief from the discovery admissions; and (3) granting Scripps's motion for summary judgment. We affirm the judgment.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are current or former employees of Scripps Mercy Hospital Chula Vista (hospital) employed in hospital's emergency department. As of December 31, 2004, hospital had a policy entitled "Rest and Meal Periods" that stated in part: "Employees are provided with rest periods at the rate of 10 minutes net rest time for each four hours of work or major fraction thereof. Rest periods should be scheduled as close to the middle of the four (4) hour work period as is appropriate to departmental operations . . . ." The policy further provides: "Employees must obtain prior authorization from their supervisor if they believe they are unable to take their rest period in any workday. Additionally, employees must promptly report to their supervisor, no later than the end of their shift, any occasion on which they are unable to take their rest periods. Failure to obtain pre-authorization for missed rest periods may result in corrective action up to and including termination."
Plaintiffs' Lawsuit; Scripps's Discovery and Grant of Discovery Extensions
In December 2008, plaintiffs filed a lawsuit against Scripps alleging it failed to provide rest breaks under California labor laws and engaged in unfair competition under the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.) In August 2009, Scripps propounded four sets of discovery to each plaintiff, including six requests for admissions. These requests asked plaintiffs to admit that at all times during the period of December 31, 2004, through the present:
(1) "YOU were aware of SCRIPPS HEALTH's policy authorizing and permitting YOU to take ten-minute rest breaks";
(2) SCRIPPS HEALTH "authorized and permitted YOU to a ten-minute rest break for every four hours of work or a major fraction thereof";
(3) "YOU were aware of SCRIPPS HEALTH's rest break policy, which states that non-exempt SCRIPPS HEALTH employees must promptly report to their supervisor, no later than the end of their shift, any occasion on which they are unable to take their rest periods";
(4) "YOU were aware of SCRIPPS HEALTH's rest break policy, which states that all non-exempt SCRIPPS HEALTH employees must obtain prior authorization from their supervisor if they believe they are unable to take their rest periods in any workday"; and
(5) "YOU were never denied permission to take a rest break if you asked to take a rest break." Plaintiffs were also asked to admit: (6) "SCRIPPS HEALTH pays YOU one extra hour of pay at your regular hourly rate when YOU report that YOU were unable to take a rest break during your shift."
Thereafter, the parties engaged in settlement discussions. Scripps's and plaintiffs' counsel agreed to extend the deadline for all outstanding discovery several times, so that eventually, responses to that discovery were due on November 13, 2009.
Scripps Obtains an Order to Compel Discovery Responses, Deem Plaintiffs Admissions Admitted, and for Sanctions
When plaintiffs did not respond to the discovery by November 13, 2009, Scripps served objections and communicated with plaintiffs' counsel, Deborah Brady-Davis, concerning the matter. On November 30, 2009, having received no discovery responses, Scripps's counsel sent a meet and confer letter to Brady-Davis asking her to provide her clients' responses to the written discovery without objection by December 4, 2009. As of December 18, 2009, plaintiffs had not served their responses. Accordingly, on that day, Scripps filed a motion to compel and for sanctions, which plaintiffs did not oppose.
On January 15, 2010, the court granted Scripps's motion, ordered plaintiffs to provide verified responses without objections, and deemed Scripps's requests for admissions admitted. It ordered plaintiffs and their counsel jointly and severally to pay $1,125 in sanctions to Scripps's counsel.
The Court Vacates the Trial Date and Scripps Files a Motion for Summary Judgment/Summary Adjudication
On January 25, 2010, Scripps applied ex parte to continue the trial date and pre-trial deadlines. It sought a 90-day continuance to bring a motion for summary judgment. Following a short hearing unattended by plaintiffs' counsel, the court ordered the trial date stricken by the filing of Scripps's motion. Scripps served notice of entry of the minute order on the same day.
Thereafter, Scripps moved for summary judgment or alternatively summary adjudication of issues on grounds all of the undisputed material facts were conclusively established by plaintiffs' discovery admissions. In particular, Scripps argued the admissions established that "Scripps authorized and permitted" plaintiffs to take ten-minute rest breaks for every four hours of work or major fraction thereof during the relevant time period; plaintiffs were aware of the contents of Scripps's written policy authorizing and permitting their ten-minute rest breaks during the entire time period; plaintiffs knew they were required to promptly report to a supervisor if they ever felt they were unable to take their authorized rest breaks; and Scripps never denied any plaintiffs' request to take a rest break. Scripps argued plaintiffs' UCL claims fell with the underlying rest break claims.
Plaintiffs Move for Relief from the Discovery and Sanctions Order
In March 2010, plaintiffs moved under section 473 or alternatively section 2033.280 et seq. for relief from the January 15, 2010 sanctions order and the order deeming Scripps's discovery requests admitted, further asking for "any other relief that the court may consider in law or equity." In a supporting declaration, plaintiffs' counsel Brady-Davis recounted how, after agreeing to the extension of time for discovery and rejecting Scripps's settlement offer, she "became severely ill and was unable to work on a consistent basis." According to Brady-Davis, during the period from late October to mid-November 2009, she experienced extreme stomach and lower abdominal pains with significantly elevated blood pressure, and though she sought medical care while attempting to work, she did not tend to her physical condition as she should have. During that period, Brady-Davis had a few telephone conversations with defense counsel, Jeffrey Ames, and told him she was and had been ill. Brady-Davis stated that after she received a November 30, 2009 letter demanding responses to the outstanding discovery by December 4, 2009, she had her sister call Ames's office and request a further continuance to December 18, 2009, due to her illness.
Brady-Davis stated she unrealistically believed she would meet the December 18, 2009 deadline, but was unable to do so and realized she should have sought ex parte a 90-day continuance of all the trial dates. She averred that after Scripps filed its motion to compel, her plan was to respond to the discovery and avert the consequences of the motion, but because she was not fully functioning, she did not properly note the date of Scripps's motion or remember that it had served requests for admissions. Consequently, on the date of Scripps's motion, she was at a trial call in a different case. She stated, "Had I been thinking clearly and realized that this was also the date of the motion to compel, I would have at least called to notify the court of this conflict." Finally, Brady-Davis averred she was hospitalized on February 21, 2010, for internal bleeding and blood pressure so elevated that she was at risk for a heart attack or stroke, and was not released until February 25, 2010.
As for Scripps's request to continue the trial and pretrial dates, Brady-Davis stated in her declaration that, during their telephone conversation concerning the matter, Scripps's counsel had only asked to continue the trial date; he never told her he would also be seeking to move other pre-trial dates, including the deadline by which to move for summary judgment. According to Brady-Davis, she would have opposed the request had she known this, and agreed only because she knew the parties were past the filing date for such a motion. She attached defense counsel's letter notifying her that Scripps was appearing ex parte "to request a 90-day trial continuance," which concludes: "You indicated that you do not oppose a request for a trial continuance unless such a continuance puts the trial date in June 2010." Brady-Davis asked for relief under section 473 under either the discretionary or mandatory portions of that statute, acknowledging she should have had someone help her but her illness "made [her] light-headed and affected [her] ability to think properly, potentially due to the high blood pressure, or the anemia I now suffer due to the loss of blood."
Plaintiffs Oppose Scripps's Motion for Summary Judgment/Adjudication
Plaintiffs also opposed Scripps's summary judgment motion. They conceded the deemed admissions with the exception of the contents of admission No. 2: that "SCRIPPS HEALTH authorized and permitted YOU to a ten-minute rest break for every four hours of work or major fraction thereof." In part, they argued admission No. 2 as written was not consistent with the requirements of the law, and thus the deemed admission could not determine the outcome of the case. Plaintiffs pointed to California Industrial Welfare Commission Order No. 5.2001: "Every employer shall authorize and permit all employees to take rest periods . . . ." They argued that because admission No. 2 did not include the verb "take," it was unclear and subject to argument what exactly Scripps authorized and permitted each plaintiff to do.
Plaintiffs each submitted declarations asserting in part that at no time from December 31, 2004, until approximately 2008 (and for McElroy and Greenaway, until the time of their declaration) did Scripps schedule 10-minute rest breaks, even though the hospital's written rest and meal period policy during that time frame stated that rest periods would be provided and should be scheduled as appropriate to department operations. According to the plaintiffs, Scripps did not provide emergency room staff with any relief personnel to care for their patients and assume their duties so they could actually take the 10-minute break, and thus until some time in approximately 2008 they were forced to forego or waive their rest periods.
In their opposition papers, plaintiffs did not raise the issue of Scripps's ex parte notice for a trial continuance or the propriety of the court's order permitting it to timely move for summary judgment.
The Trial Court Denies Plaintiffs' Request for Section 473 and 2033 Relief
On April 16, 2010, the court heard argument on plaintiffs' motion for relief under sections 473 and 2033. It eventually denied the motion, finding counsel's "mistake, inadvertence, or neglect in failing to deny the [discovery] admissions prior to the hearing" inexcusable: "Plaintiff's counsel suggests she was caught by surprise by defense counsel's sudden demand for responses to the outstanding discovery. However, the record documents that due to settlement discussions the parties mutually agreed that discovery responses would not be due until November 13. Plaintiffs' counsel was subsequently reminded of that deadline before defendant filed its discovery motion. Even after plaintiffs were served with the motion they could have avoided the admissions by simply responding to the requests for admission prior to the hearing. Counsel then failed to appear at the hearing because she had a trial call in another department." The court further found, with a detailed explanation, counsel's illness did not excuse her handling of the discovery responses.
Scripps's Summary Judgment Reply
In its summary judgment reply papers, Scripps argued the law (Cal. Code Regs., tit. 8, § 11040, subd. 12(A)) only required it to "authorize and permit" rest breaks, which was what plaintiffs had admitted in their discovery responses. It maintained plaintiffs' self-serving declarations did not create a triable issue of fact because they directly contradicted their prior discovery admissions. Scripps objected to large portions of plaintiffs' declarations on those grounds.
The Court Grants Summary Judgment
Sustaining all of Scripps's objections to plaintiffs' declarations and ruling the discovery admissions foreclosed any triable issue of fact, the trial court granted summary judgment in Scripps's favor. In part, it reasoned: "Plaintiffs[] contend the omission of the word 'take' from admission number 2 renders the request ambiguous. However, the law does not currently require that the employer compel the employee to actually take a rest break. Employers must make a rest break available and may not coerce or encourage employees to forgo their rest break. The admissions establish that defendant had a policy, of which plaintiffs were aware, which authorized and permitted plaintiffs to take rest breaks. [Scripps's] policy reinforces the employees' right to rest breaks by requiring plaintiffs to notify by the end of their shift if they were unable to take their rest break. The facts that plaintiffs were never denied permission to take a rest break if they asked and they were paid one extra hour of pay at their regular hourly rate when plaintiffs report that they were unable to take a rest break during their shift further preclude plaintiffs from arguing that defendant did not in fact permit and authorize plaintiffs to take their rest breaks."
Thereafter, the court entered judgment in Scripps's favor. Plaintiffs appeal.
Plaintiffs' notice of appeal states they appeal from the "final judgment" entered in May 2010 and all separately appealable orders. As Scripps points out, the trial court's May 2010 order is a nonappealable minute order granting summary judgment. (See Davis v. Superior Court (2011) 196 Cal.App.4th 669; Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.) We asked plaintiffs to provide a judgment and thereafter they submitted an October 7, 2011 amended judgment. Though some courts choose not to do so (Modica v. Merin (1991) 234 Cal.App.3d 1072, 1074-1075), we will construe plaintiffs' notice of appeal as from the subsequently filed judgment. (Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 538-539; Aguilar v. Universal City Studios, Inc. (1985) 174 Cal.App.3d 384, 387, fn. 1; see Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18 [appellate court erred by dismissing an appeal from a nonappealable order denying a motion for new trial when it was " ' "reasonably clear what appellant was trying to appeal from . . . ." ' "].)
DISCUSSION
I. Claim Regarding Insufficient Notice of Scripps's Ex Parte Application to Continue the
Trial and Pre-Trial Dates
Plaintiffs contend the trial court erred by granting Scripps's ex parte application to continue the trial and pre-trial dates when Scripps's counsel assertedly did not provide specific notice of the nature of the relief requested or service of the moving papers, rendering void or voidable the court's ruling vacating the trial date and permitting the summary judgment motion. Pointing out they are entitled to procedural due process as a matter of fundamental fairness, plaintiffs argue Scripps violated those rights by engaging in "ex parte fraud," consisting of "failing to provide true notice of their intention . . . ." A. Standard of Review
Plaintiffs assert that the relevant standard of review is de novo. They rely on cases involving review of a trial court's determination that an order or judgment is void, including this court's decision in Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488. They also rely on the principle that independent appellate review applies where the decisive facts are undisputed. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
Scripps, on the other hand, argues the relevant standard of review is that applicable to either an order to continue the trial date or a reconsideration order (§ 1008), which are reviewed for abuse of discretion. It points out the trial court did not decide whether any judgment or order was void but rather declined to grant the plaintiffs' request made at the summary judgment hearing that it reconsider its order. As we explain, we apply an abuse of discretion standard to the court's ruling on the continuance request. B. Analysis
Plaintiffs' attack on defense counsel's actions, and their assertion that the trial court's ruling is void or voidable based on counsel's fraud, is essentially an equitable claim for relief from an order obtained by extrinsic fraud. (See, e.g., Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47.) However, plaintiffs only meaningfully develop a contention of extrinsic fraud with case authority in their reply papers, choosing instead in their opening brief to rely on general due process principles. The belated reliance on the theory of extrinsic fraud results in plaintiffs having forfeited the issue. (See Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388; Moore v. Shaw (2004) 116 Cal.App.4th 182, 200, fn. 10 ["Ordinarily, an appellant's failure to raise an issue in its opening brief waives the issue on appeal."]; see also Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["An appellate court is not required to examine undeveloped claims, nor to make arguments for parties"].)
Were we to nevertheless consider plaintiffs' claim, whether under principles of fundamental due process or extrinsic fraud, we would be compelled to reject it on this record. Concededly, Scripps's counsel's ex parte declaration and letter confirming his phone call with plaintiffs' counsel do not reveal he disclosed to counsel his intent to bring a summary judgment motion. Nevertheless, defense counsel plainly revealed his intentions in his ex parte papers, which were served by mail on plaintiffs' counsel on January 22, 2010, the Friday before the ex parte hearing on Monday, January 25, 2010. Mail service is complete at the time of deposit in the mail and receipt is presumed; thus, Scripps did not have the burden of showing that the notice was actually received by plaintiffs' counsel. (Code Civ. Proc., § 1013, subd. (a); Evid. Code, § 641; Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360.) On the day of the hearing, Scripps's counsel served plaintiffs' counsel a notice of the court's ruling, attaching the minute order vacating the trial readiness conference and trial date.
"Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding. . . . [¶] 'Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so.' " (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 140.) To qualify for equitable relief on the ground of extrinsic fraud or mistake, the moving party must demonstrate diligence in seeking to set aside the [judgment or order] once it was discovered. (Manson, Iver & York v. Black, supra, 176 Cal.App.4th at p. 49, citing Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.)
Plaintiffs raised the issue below in connection with their March 2010 motion for relief under sections 473 and 2033.300, in which plaintiffs' counsel submitted a declaration informing the court of defense counsel's alleged insufficient ex parte notice.When the court denied that motion, by implication it rejected plaintiffs' claim of insufficient notice or fraud, or ruled plaintiffs were not diligent in seeking to set aside the order once the fraud was discovered. (Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [court implies findings to support the judgment].) It is plaintiffs' burden to demonstrate the court abused its discretion in reaching those implied findings and thereafter vacating the trial date. (Accord, Manson, Iver & York v. Black, supra, 176 Cal.App.4th at p. 49; Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984 [grant or denial of request for continuance of trial is committed to sound discretion of the trial court].) Plaintiffs have not demonstrated how the trial court's implied findings constitute an abuse of discretion; indeed, as stated above, they do not discuss the standards for extrinsic fraud and whether the circumstances meet those standards here. Nor do plaintiffs argue that defense counsel's reasons for seeking a trial continuance under the circumstances did not constitute "an affirmative showing of good cause." (Cal. Rules of Court, rule 3.1332(c).) We uphold the court's order implicitly finding such good cause absent a showing otherwise. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.)
Plaintiffs' notice of motion states that plaintiffs were moving "for relief from the court's dismissal of the Plaintiffs' lawsuits, relief from the court's sanctions orders and reversal of the order deeming the admissions admitted . . . , and/or any other relief that the court may consider in law or equity." Plaintiffs' papers do not state that they sought relief from the order vacating the trial date, nor do they explain why they sought relief from the "dismissal of the Plaintiffs' lawsuits," as there is no dismissal appearing in the record by that time. Plaintiffs' counsel did not mention any issue of fraud at oral argument on her section 473 motion for relief.
In any event, on the merits we cannot say the court abused its discretion in denying plaintiffs' requested relief. Plaintiffs' counsel was not prevented from appearing at the ex parte hearing and could have then opposed Scripps's request, the full extent of which was revealed in its ex parte papers. Further, an attorney in the position of plaintiffs' counsel, by then aware the court had deemed Scripps's discovery requests admitted, would know that by agreeing to a 90-day trial continuance, any properly noticed pretrial motions, including a dispositive motion for summary judgment requiring 75 days notice, could thereafter be brought.
II. The Trial Court Did Not Abuse its Discretion in Denying Plaintiffs' Motion for Relief
From the Discovery Admissions
Plaintiffs contend the court abused its discretion in denying their sought-after relief from the deemed admissions under section 2033.300, because they presented evidence of their counsel's excusable neglect due to her illness and the fact she misplaced the discovery requests. According to plaintiffs, Scripps could not demonstrate the requisite prejudice because by the time plaintiffs moved for relief, it had received all of plaintiffs' discovery responses contradicting the deemed admissions. Asserting that the substance of plaintiffs' argument consists of mere disagreement with the court's ruling, Scripps responds that plaintiffs have waived the issue for failure to affirmatively demonstrate such an abuse of discretion. They further argue plaintiffs' counsel's actions do not rise to the level of excusable mistake, inadvertence or neglect. A. Legal Principles and Standard of Review
Section 2033.300 provides in pertinent part: "(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. [¶] (b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits." Thus, a party is entitled to withdraw or amend deemed admissions under section 2033.330 only if the court finds both that there was "mistake, inadvertence, or excusable neglect" and that "the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits." (§ 2033.300, subd. (b); see also Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 975 [applying former § 2033, subd. (m)]; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1421.)
We apply the abuse of discretion standard in reviewing the trial court's ruling denying Scripps's motion to withdraw deemed admissions. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) "The trial court's discretion in ruling on a motion to withdraw or amend an admission is not unlimited, but must be exercised in conformity with the spirit of the law and in a manner that serves the interests of justice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief. Accordingly, the court's discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits." (New Albertsons, Inc. v. Superior Court, supra, 168 Cal.App.4th at pp. 1420-1421.) An error is excusable if a reasonably prudent person under the same or similar circumstances might have made the same error. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) B. Analysis
We agree plaintiffs' appellate showing is not properly focused on affirmatively establishing the trial court abused its discretion in denying relief under section 2033.300. In order to show an abuse of discretion, plaintiffs must do more than summarize the evidence they presented on the issue of excusable neglect and assert we should reach a different result. (See Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 762 [trial court's decision will not be reversed merely because reasonable people might disagree]; Schall v. Lockheed Missiles & Space Co. (1995) 37 Cal.App.4th 1485, 1488, fn. 1.)
Here, the trial court made detailed findings concerning why plaintiffs' counsel's handling of the discovery responses was inexcusable, and why her illness did not forgive her inaction. As to her illness, it explained: "This is not a situation where counsel suddenly became ill the day before trial. Plaintiffs' counsel saw a doctor several times in November but did not seek further medical attention until she was hospitalized in February. She had over two months to serve the responses before the January 15 hearing date. Despite her illness counsel met with her nine clients to discuss a settlement offer and she had three cases with trial calls in November, December and January. Counsel chose to attend a trial call in another department rather than attend, or have someone attend, the hearing on the discovery motion. Counsel's illness made it more difficult to juggle a number of cases at the same time, but a reasonable person in the same position would not have allowed the requests to be deemed admitted."
Plaintiffs do not attack or challenge these specific factual findings. In Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275 (Transit Ads), relied upon by Scripps, counsel, a sole practitioner, for a party seeking to set aside a default judgment declared he had taken weight loss medication that caused him to become "nauseated, dizzy, in a general weakened condition," preventing him from doing paper work or working at a desk. (Id. at p. 286.) He said, "The effect of the medication on my physical condition as well as my mental condition was compounded by the fact that I was under the pressure of knowing that I was not properly able to attend to my law practice, resulting in a high state of nervousness accompanied by emotional problems." (Ibid.) Observing that "neglect to be excusable must be an act or omission which might have been committed by a reasonably prudent person under the same circumstances" (id. at p. 279), the court "examine[d] the nature of the illness as described and then consider[ed] if the illness was so disabling that the neglect consisted only of acts or omissions of a kind which a reasonably prudent sole practitioner caught in similar circumstances would commit." (Id. at p. 286).
The court noted that counsel had not presented a doctor's declaration and further observed that counsel "was able to go to his office at least intermittently. He made no effort to contact his client . . . to inform it of his condition and to explore possibilities of its obtaining another counsel to take over the responsibility for handling the case." (Transit Ads, supra, 270 Cal.App.2d at p. 287.) Based on those facts and others, the court found "no showing that disabling illness, and not inexcusable neglect, was the real cause for the default." (Id. at pp. 287-288; see also Lyons v. Swope (1957) 154 Cal.App.2d 598, 600 [appellate court upheld trial court's refusal to grant equitable relief from a default judgment where relief was sought based on counsel's workload and "virus influenza which prevented him from working evenings in his office"; press of business was not a reasonable excuse, and counsel's "illness was not a disabling one as he was able to continue with his other legal work"].)
In arguing that we should resolve doubtful cases in their favor, plaintiffs rely on Elston v. City of Turlock, supra, 38 Cal.3d 227, in which the California Supreme Court found the trial court abused its discretion by refusing to set aside deemed admissions on the ground of excusable neglect. There, the court denied discretionary relief under section 473 and eventually granted summary judgment in favor of the defendant on the basis of the admissions. (Id. at pp. 231-232.)
When Elston was decided, then section 2033, subdivision (a) provided for an automatic admission function if a party served with requests for admissions failed to respond within 30 days. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 232 & fn. 3; see Wilcox v. Birtwhistle, supra, 21 Cal.4th at pp. 979-980.) After the propounding party's service of a specified warning, the responding party had 30 days to move for relief from default under section 473. (Ibid.) The avenue for relief to plaintiffs here is a timely motion under section 2033.300, not section 473. (St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 852, disapproved on another ground in Wilcox, at p. 983, fn. 12.)
In reversing the judgment, the Elston court noted that in his supporting declarations, the plaintiffs' attorney explained that because two attorneys had recently left his firm, his office was understaffed at the time the request for admissions was received, the request for admissions was misplaced and he was not aware of it until he received the defendant's notice that the matters contained in the request were deemed admitted, and he was "extensively" involved in other business and litigation matters at the time. (Elston v. City of Turlock, supra, 38 Cal.3d at p. 234.) According to the Elston court, the motion for relief should have been granted based on this showing of excusable neglect. (Ibid.) "Where an attorney states that he was unaware of his duty to appear or answer because his employees misplaced papers or misinformed him as to the relevant date, relief is routinely granted." (Ibid.) Further, the court pointed out that press of business alone would not constitute excusable neglect, but that principle was inapposite because counsel in that case "does not allege that he was aware of the request for admissions and nevertheless failed to answer because he forgot or was too busy." (Ibid.)
Elston distinguished Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892 as "a good illustration of the type of conduct that constitutes inexcusable neglect." (Elston v. City of Turlock, supra, 38 Cal.3d at p. 236.) In Carroll, counsel had received multiple extensions of time to produce the requested documents, had failed to produce them despite two court orders compelling production, and had failed to appear at two court hearings. The Elston court contrasted that conduct with counsel in that case's "single, nonwillful oversight that was cured as soon as it was brought to counsel's attention." (Elston, supra, at p. 236.)
The circumstances presented here more closely resemble those of Carroll than Elston. Plaintiffs' counsel operated under multiple extensions of time, was informed of the passage of the final deadline, and still neglected to serve plaintiffs' discovery responses. She was at all times aware of the pending discovery requests, unlike counsel in Elston, who learned of the admissions for the first time he was notified they were deemed admitted by defense counsel. Plaintiffs' counsel waited almost two months after being served with Scripps's notice of ruling on the deemed admissions before moving for relief. We perceive no abuse of discretion in the court's denial of relief under the circumstances presented here.
Nor can we say the trial court clearly abused its discretion by concluding on the facts before it that Brady-Davis's illness did not excuse her initial failure to respond to discovery before the agreed upon deadlines, and later her failure to respond at all to Scripps's motion to deem the requests admitted. Though Brady-Davis presented some partial medical records showing she had doctor visits during the relevant time frame, like counsel in Transit Ads, there is no substantiating physician declaration attesting to the nature of her illness or her ability to work during that time. Further, as stated, Brady-Davis was indeed able to conduct other business in connection with her practice during the time she was assertedly experiencing her medical symptoms. Like counsel in Transit Ads, Brady-Davis knew she was sick, and someone in her position could reasonably be expected to obtain assistance. In sum, plaintiffs have not shown the trial court plainly abused its discretion in denying their motion for relief under section 2033.300.
III. Summary Judgment
Plaintiffs' first cause of action alleges that hospital failed to provide them with rest periods in violation of Labor Code section 226.7, and section 12 of Industrial Welfare Commission Order No. 4-2001, applicable to all persons employed in professional, technical, clerical, mechanical, and similar occupations. (Cal. Code Regs., tit. 8, § 11040, subd. 12; see Zelasko-Barrett v. Brayton-Purcell, LLP (2011) 198 Cal.App.4th 582, 585-586.) Plaintiffs' second cause of action derivatively alleges a violation of the UCL premised on Scripps's alleged rest break violations. A. Standard of Review
Plaintiffs' UCL claim is solely derivative of the allegations of Scripps's wage and hour violations. Accordingly, we need not separately address the propriety of summary judgment as to that cause of action because it stands or falls with plaintiffs' rest break claims. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 [UCL " 'borrows' violations from other laws by making them independently actionable as unfair competitive practices"].)
Our "review [of] a grant of summary judgment [is] de novo; we must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law." (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; see California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1590-1591.)
" 'The pleadings define the issues to be considered on a motion for summary judgment. [Citation.] As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. [Citation.]' [Citation.] 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' " (MacKay v. Superior Court (2010) 188 Cal.App.4th 1427, 1435.) We uphold the judgment if correct on any ground, regardless of the reasons given by the trial court. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
In conducting a summary judgment analysis, this court does not consider evidence "to which objections have been made and sustained." (§ 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) The trial court's evidentiary rulings are reviewed for abuse of discretion. (Miranda v. Bomel Const. Co., Inc. (2010) 187 Cal.App.4th 1326, 1335; Carnes v. Superior Court, supra, 126 Cal.App.4th at p. 694; compare with Reid v. Google (2010) 50 Cal.4th 512, 535 [declining to "decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].) Plaintiffs bear the burden of demonstrating that the trial court's evidentiary rulings were incorrect and prejudicial. (Carnes, 126 Cal.App.4th at p. 694.) B. Legal Principles Applicable to Plaintiffs' Claims
Labor Code section 226.7, subdivision (a) states: "No employer shall require any employee to work during any . . . rest period mandated by an applicable order of the Industrial Welfare Commission." Subdivision (b) of Labor Code section 226.7 further provides that, "If an employer fails to provide an employee a . . . rest period in accordance with an applicable order of the Industrial Welfare Commission, the employer shall pay the employee one additional hour of pay at the employee's regular rate of compensation for each work day that the . . . rest period is not provided."
"The Industrial Welfare Commission . . . is the state agency empowered to formulate wage orders governing employment in California." (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102, fn. 4.) With respect to rest periods, the applicable wage order provides in part: "(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages. [¶] (B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee's regular rate of compensation for each workday that the rest period is not provided." (Cal. Code Regs., tit. 8, § 11040, subd. 12(A)-(B).)
The California Supreme Court is presently considering the question of what employers must do under California statutes and regulations to comply with their duty to provide meal and rest breaks to hourly workers. (See Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, 31, review granted Oct. 22, 2008, S166350 [holding employers "need only provide, not ensure, rest periods are taken" but cannot impede, discourage, or dissuade employees from taking them]; Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278, review granted Jan. 14, 2009, S168806 [same]; Hernandez v. Chipotle Mexican Grill, Inc. (2010) 189 Cal.App.4th 751, review granted Jan. 26, 2011, S188755 [same]; Tien v. Tenet Healthcare Corp. (2011) 192 Cal.App.4th 1055, review granted May 18, 2011, S191756 [same].)
In keeping with the ordinary dictionary meaning of "provide," which means "to supply or make available" (Merriam-Webster's Collegiate Dictionary (11th ed. 2006) p. 1001), we remain convinced that the mandatory language does not mean employers must ensure employees take rest breaks. (See White v. Starbucks Corp. (N.D.Cal. 2007) 497 F.Supp.2d 1080, 1085-1087 [words "authorize" and "permit" only require that the employer make rest periods available; evidence that an employee decided not to take rest breaks on his own accord without being forced to forego them did not demonstrate a violation to defeat summary judgment]; Brown v. Federal Express Corp. (C.D. Cal. 2008) 249 F.R.D. 580, 585 [the word " 'provide' . . . does not suggest any obligation to ensure that employees take advantage of what is made available to them"].) Consistent with the purpose of requiring employers to provide employees with rest breaks, the Labor Code uses mandatory language (e.g., Lab. Code, § 226.7, subd. (a) ["No employer shall require any employee to work during any . . . rest period . . . ."]) precluding employers from pressuring or coercing employees to skip breaks, declining to schedule breaks, or establishing a work environment that discourages employees from taking their breaks. C. Plaintiffs' Declarations
Plaintiffs proffered substantially similar opposing summary judgment declarations. Luis Torres, a licensed vocational nurse, averred: "At no time from December 31, 2004 thorough the date of my termination of employment, were the nurses or other employees in the Emergency Department at [the hospital] ever 'provided' with scheduled 10-minute rest breaks, even though the hospital's written rest and meal period policy during that time frame says that rest periods will be 'provided' and should be 'scheduled' 'as is appropriate to department operations[.']" According to Torres, during this period and until approximately 2008, no emergency department supervisor or manager scheduled him or any other employee to take rest breaks, nor was there relief staff to care for his patients so he could take a 10-minute rest break every four hours or major fraction thereof. Further, Torres stated the emergency department was regularly understaffed with the defendant's knowledge, but defendants did nothing to correct the problem. Torres stated that without such relief staff, he was coerced or encouraged to forego or waive one or more rest periods during almost every shift during this time: "Because no replacement emergency department staff was provided to us to care for our patients, defendants . . . effectively and successfully forced me and the other Emergency Department employees, by coercion or encouragement, to involuntarily forego or waive our rest periods. As nurses and other Emergency Department professionals, we could not abandon our patients. Nor could we assume that just because the patient appeared to be 'stable', he/she would continue to be stable if we were to leave them unattended for 10-minutes while we took a well-deserved 10-minute rest break." He further avers: "Since there was no rest break schedule or any other procedure for providing rest breaks in the Emergency Department during this time, I had no idea if or when a rest break would be provided to me. Thus, neither I nor any other employee in the Emergency Department could obtain prior authorization from a supervisor about not being able to take a rest break since the supervisors had not scheduled any rest breaks for our department in the first place."
Torres also stated that Scripps and the hospital "paid no compensation to me or any of the other employees in the Emergency Department for not providing us with 10-minute rest breaks every four hours or major fraction thereof during this time." He stated, "Although I never freely chose, without coercion or encouragement, to forego or waive a rest period, I was rarely, if ever, compensated by [Scripps or the hospital] with one extra hour of pay at my regular hourly rate for the rest periods I was forced to forego or waive from December 31, 2004 until sometime in approximately 2008." Finally, Torres averred that Scripps's written rest break policy in effect as of December 31, 2004, "does not require employees to ask permission to take a rest break in order to receive a rest break."
Two emergency department unit secretaries, Burdella Thomas and Sherry Greenaway, testified to the same effect. Greenaway additionally stated she did not receive rest breaks even after January 2010 to the present date.
Registered nurses Martel Mesina, David McElroy, Carol Vrooman, and Milagros Fontillas included similar statements in their declarations They also averred: "In the emergency room, a nurse cannot walk away from a patient for 10-minutes [sic] or any other length of time unless another similarly skilled and appropriate certificated nurse relieves him/her by caring for those patients during the assigned nurse's absence. Even if the patient appears to be 'stable', the nature of emergency room care is that in a matter of a few minutes, anything can happen. A patient can easily go from being 'stable' to 'critical' in 10-minutes [sic] or less. . . . [I]t would be negligence on my part and patient abandonment in violation of the oath I took as a nurse, to simply leave for 10 minutes to take a rest break without there being adequate nursing coverage to take over my responsibilities to my patients during this time." Defendants did not object to these latter statements.
Like Greenaway, McElroy stated he had not received required rest breaks even after January 2010 to the present date: "Since January 2010, I have not been provided with a relief nurse to cover for me so that I can take my second break on at least 25 [percent] of the shifts I have worked though the current date during 2010. I did not freely or voluntarily choose to waive or forego these rest breaks." D. The Trial Court Ruled the Vast Majority of Plaintiffs' Evidence Inadmissible as Contrary to the Deemed Admissions, and Plaintiffs Have Shown No Abuse of Discretion In Those Evidentiary Rulings
1. Plaintiffs' Contentions
In their opening brief, plaintiffs do not squarely challenge the trial court's evidentiary rulings sustaining all of Scripps's objections to large portions of their summary judgment declarations, nor do they discuss principles concerning the applicable abuse of discretion standard of review. Based on this deficiency, Scripps argues plaintiffs have waived any challenge to the court's rulings, by which the court declined to consider plaintiffs' evidence contradicting the admissions. We agree that on appeal plaintiffs did not properly " 'identify the court's evidentiary ruling[s] as a distinct assignment of error' and . . . carry [their] burden on appeal to demonstrate the trial court's error." (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1492, fn. 14, citing Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1114 & Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.)
Rather, plaintiffs challenge the scope of the admissions, and the finding underlying the trial court's evidentiary ruling: that the objected-to portions of their declarations in fact contradicted each discovery admission, rendering the declarations inadmissible. Plaintiffs contend that, as worded, their admissions do not dispose of all triable issues of material fact in this case. Specifically, they argue omission of the verb "take" from admission No. 2 (in which they admit that Scripps "authorized and permitted [them] to a ten-minute rest break for every four hours of work or major fraction thereof") is a significant error rendering the admission unclear, ambiguous, and capable of more than one meaning, entitling them to clarify and explain their understanding of what they in fact admitted. Plaintiffs point to Fredericks v. Kontos Industries, Inc. (1987) 189 Cal.App.3d 272 (Fredericks), in which, despite a party's admission he had agreed to make contractual payments according to a payment schedule, the trial court admitted parol evidence establishing the performance of certain work. (Id. at p. 276.) The appellate court in Fredericks stated: "Although admissions are dispositive in most cases, a trial court retains discretion to determine their scope and effect. An admission of a fact may be misleading. In those cases in which the court determines that an admission may be susceptible of different meanings, the court must use its discretion to determine the scope and effect of the admission so that it accurately reflects what facts are admitted in the light of other evidence." (Id. at p. 277.) It further held "[t]he court must have discretion to admit evidence to elucidate and explain an admission, because the admission of a fact does not always reflect the party's reasonable understanding of that fact." (Id. at p. 278.)
Based on Fredericks, supra, 189 Cal.App.3d 272, plaintiffs argue their declarations in fact do not contradict admission Nos. 1, 3, 4 and 5, but explain their understanding of Scripps's rest break policy. As for admission No. 6 regarding Scripps's payment of an extra hour of pay when plaintiffs report their inability to take a rest break, plaintiffs argue that because it is written in the present tense, it does not apply to any period before the date the admissions were deemed admitted — January 15, 2010 — and is not dispositive of whether Scripps in fact paid the one-hour differential for rest breaks they could not take between December 31, 2004 and that date.
2. The Relevant Inquiry is Whether the Trial Court Abused its Discretion in Interpreting the Scope and Effect of the Admissions
In making the foregoing contentions, plaintiffs overlook the fact that the trial court had already exercised its discretion to interpret the scope and effect of the admissions, leading it to conclude that, as framed, they in fact disposed of all issues presented by plaintiffs' causes of action. (Fredericks, supra, 189 Cal.App.3d at p. 277; Milton v. Montgomery Ward & Co., Inc. (1973) 33 Cal.App.3d 133, 138 [after a matter is deemed admitted on a party's failure to answer a request for admissions, the trial court must decide the scope and effect of the admission and has "broad discretion" in that task].) In other words, the trial court's evidentiary rulings are based on an implicit finding that the requests for admissions and plaintiffs responses were unambiguous, and thus not susceptible to explanation or elucidation by plaintiffs' declarations. We review the lower court's determinations for abuse of discretion. (Ibid.) Doing so, we find none.
3. Admission Nos. 1-5
We find no abuse of discretion in the court's conclusion that omission of the verb "take" from admission No. 2 does not render it ambiguous and subject to explanation. The court could reasonably conclude, and we infer it did, that admission No. 2 presents a legal conclusion that mirrors the relevant standard discussed above: requiring employers only to "authorize and permit," but not ensure, rest breaks are taken. An argument that Scripps authorized and permitted them rest breaks — as plaintiffs unambiguously admitted occurred during the relevant time period — but that it nevertheless did not schedule breaks so as to allow plaintiffs to take them, amounts to an argument that Scripps must actively ensure plaintiffs actually take their breaks, which we have concluded above is not required by the law. The fact Scripps did not actually schedule breaks, particularly in this context where emergency room personnel may be occupied with a patient in distress during a scheduled break time, is not evidence of pressure, coercion or a practice of discouraging rest breaks.
Further, the trial court concluded, implicitly if not explicitly, that plaintiffs' admitted awareness of Scripps's policies (requiring them to promptly report to their supervisor no later than the end of their shift if they were unable to take their rest breaks, and obtain prior authorization if they believed they were unable to take their rest periods in any workday) foreclosed any testimony by plaintiffs that they were forced or coerced to forego their breaks due to inadequate scheduling, lack of staff, or any other practice. Plaintiffs unambiguously admitted they were never denied permission to take a break. The trial court reasonably concluded that these admissions demonstrated that the choice of whether or not to actually take advantage of their rest break was squarely placed in the control of plaintiffs, and not subject to Scripps's coercion or control. We conclude this is a reasonable interpretation of the admission's scope, and that the trial court did not err by disregarding the objected-to portions of plaintiffs' declarations based on its conclusion. In the summary judgment context specifically, admissions or concessions made during the course of discovery govern and control over contrary and self-serving declarations by a party submitted on a motion for summary judgment. (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 861; see D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613.)
2. Admission No. 6
Finally, plaintiffs argue that admission No. 6, as worded, does not encompass Scripps's past behavior in paying or not paying them for prior missed rest breaks. They point out the admission purposely excludes the phrase, "at all time[s] during the period of December 31, 2004 through the present," and maintain the admission is thus phrased only in the present tense. Accordingly, plaintiffs argue the admission applies only as of January 15, 2010, and cannot be dispositive on whether Scripps in fact paid plaintiffs the one-hour differential for breaks they could not take from December 31, 2004 to January 15, 2010. Also, plaintiffs maintain summary judgment was improper because they did not admit they freely chose to forego or waive their rest breaks, but rather their declarations established they did not so freely choose without encouragement or coercion to skip their breaks.
On this point, the trial court reasoned: "A Division of Labor Standards Enforcement Opinion Letter dated 1/28/02 interpreted the applicable regulations which require an employer to 'authorize and permit' rest periods. It stated, 'an employer is not subject to any sort of penalty or premium pay obligation if an employee who was truly authorized and permitted to take a rest break, as required under the applicable wage order, freely chooses without any coercion or encouragement to forego or waive a rest period.' " The court ruled: "The facts that plaintiffs were never denied permission to take a rest break if they asked and they were paid one extra hour of pay at their regular hourly rate when plaintiffs report that they were unable to take a rest break during their shift further preclude plaintiffs from arguing that defendant did not in fact permit and authorize plaintiffs to take their rest breaks."
Plaintiffs do not meaningfully challenge the substantive merit of the Division of Labor Standards Enforcement Opinion Letter's conclusions or interpretation of the relevant regulations. It is reasonable to conclude that plaintiffs' admission: "Scripps pays YOU one extra hour of pay . . . when YOU report that YOU were unable to take a rest break during your shift," combined with the other admissions, precluded any evidence that Scripps did not pay the differential pay under appropriate circumstances when plaintiffs reported an inability to take their breaks. "[W]hile courts may utilize evidence to elucidate and explain an admission, they cannot use such evidence to contradict the plain meaning of a response to a request for admissions. [Citation.] If a response to a request for admission is unambiguous, and is not subject to different meanings, the matter admitted is conclusively established." (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 259-260.) "A trial court's exercise of discretion is abused only when its ruling ' " ' "exceeds the bounds of reason, all of the circumstances before it being considered." ' " ' " (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1604.) We cannot say the court abused its discretion in concluding that plaintiffs' declarations stating they were forced or encouraged by Scripps to forego their breaks, expressly contradicted the discovery admissions.
DISPOSITION
The judgment is affirmed.
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O'ROURKE, J.
WE CONCUR:
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BENKE, Acting P. J.
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McDONALD, J.