Hancock v.
of Plumas
Filed 5/2/13
Hancock v. County of Plumas CA3
NOT TO BE
PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Plumas)
----
KAYE
HANCOCK,
Plaintiff and
Appellant,
v.
COUNTY
OF PLUMAS et al.,
Defendants and
Respondents.
C071084
(Super. Ct. No.
CV09-00255)
According
to the trial court’s register of actions, plaintiff Kaye Hancock initiated this
action on October
5, 2009, with a complaint that is not of
record. In the April 2010 pleading at
issue (the second amended complaint), plaintiff included seven counts
individual defendants Kelly Stane (now Kelly Murphy), a county employee who
oversaw worker compensation issues; Kathleen Williams, the County’s
Clerk-Recorder; and Melinda Rother, the Assistant Clerk-Recorder.
theories of disability, age, and sex discrimination in violation of the
(Gov. Code, § 12940 et seq.); harassment based on plaintiff’s handicap in
violation of the FEHA; a failure to prevent the harassment in violation of the
FEHA; retaliation against plaintiff in violation of the FEHA for reporting
the harassment; and the unauthorized disclosure of confidential medical
records in violation of the Confidentiality of Medical Information Act (Civ.
Code, § 56).
The
trial court granted defendants’ motion for summary judgment, finding that
plaintiff had failed to produce necessary evidence either to support her
theories or refute the affirmative defenses of defendants. It accordingly entered judgment for
defendants. Plaintiff filed a timely
In
her “Statement of the Case,†plaintiff identifies only the trial court’s
rulings in connection with the motion for summary judgment as the focus of her
appeal, and (with one exception) does not provide any argument in the remainder
of her brief about any of the trial court’s other rulings in this matter. We thus deem any other issues abandoned. (9 Witkin, Cal. Procedure
(5th 3d. 2008) Appeal, § 701, p. 769.)
We shall affirm the judgment.
PREFACE
A
judgment is presumed correct. (
2 Cal.3d 557, 564.) As a result, it is an appellant’s fundamental
burden to overcome this presumption with an affirmative demonstration of error;
an appellant must accordingly provide a sufficient record to support claims of
error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Foust v. San Jose Construction Co., Inc.
(2011) 198 Cal.App.4th 181, 187; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) Otherwise, the claim of
error is forfeited.
In
addition, an appellant must adequately develop arguments (with supporting
authority) in connection with any claim of error raised on appeal; failure to
do so forfeits a claim of error (Imagistics Internat., Inc. v. Department of General Services
(2007) 150 Cal.App.4th 581, 591, fn. 8, 593 (Imagistics Internat.); Craddock
v. Kmart Corp. (2001) 89 Cal.App.4th 1300, 1307;
[issues “do not have a life of their own,†and if not raised or supported by
argument or authority “we consider the issues waivedâ€]) because it is not appropriate for a
court to originate arguments on behalf of an appellant. As part of this duty, an appellant has the obligation to explain the perceived error in a trial court’s
reasoning (Imagistics
Internat., supra,
150 Cal.App.4th at p. 588), because even
where we exercise de novo review the trial court is not a “ ‘potted plant’ †to
be disregarded (Claudio v. Regents of University of California (2005)
134 Cal.App.4th 224, 230).
Further,
in order to allow an appellate court to evaluate a brief properly without
taxing scarce judicial resources (whether in issue-spotting or responding
to petitions for rehearing that assert overlooked issues), an appellant
must organize the argument under headings that clearly identify the issue
raised in each section, forfeiting “ ‘lurking’ †arguments that do not
have any logical connection with the heading.
(Imagistics
Internat., supra,
150 Cal.App.4th at p. 593, fn. 10; Smith v. City of Napa (2004) 120 Cal.App.4th 194,
202.) There must also be adequate citations to the record of the evidence supporting a claim
of error, or we will deem it to be forfeited.
(Duarte v.
Chino Community Hospital (1999) 72 Cal.App.4th 849, 856;
These
standards are not relaxed in the context of an appellant who chooses to appear
in pro se. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) It would otherwise be unfair to the
particular opponent, and to the demands of other litigants in this court to our
timely attention to their claims.
We
thus note that plaintiff initially failed to designate a record adequate for us
to review her claims of error regarding the ruling on the motion for summary
judgment (omitting, e.g., the operative pleading, most of the points and
authorities and supporting evidence, and the trial court’s ruling on the
motion). Defendants, however, cured this
defect in their counterdesignation of the record. Plaintiff also filed an opening brief that
either intentionally or inadvertently elided a section, because a widowed
heading at the bottom of page one (“Statement of Appealabilityâ€) is followed
with a mid-paragraph leap into the stream of her first contention, omitting
facts. (This first section of her
argument presumably lacked a heading identifying the claim of error, because
the other two sections lack such a heading.)
Plaintiff otherwise failed to comply for the most part in her brief with
any of the appellant’s duties we summarized above.
Given
this manner in which plaintiff has presented her issues to us, we do not have
any duty to give plenary consideration to her claims of error. We accordingly circumscribe our analysis.
FACTUAL AND PROCEDURAL BACKGROUND
Standard of Review
Under
the historic paradigm for our de novo review of a motion for summary judgment,
we would first identify the material issues framed in the pleadings. We then
ordinarily determine whether a defendant’s evidence establishes prima facie
entitlement to judgment in the defendant’s favor on these issues, after which
we consider whether the opponent’s evidence creates a factual conflict with
respect to any of them. (
case, we can omit these latter two steps because plaintiff’s only argument
directly relating to the ruling on the motion involves a question of law, and
she otherwise does not contend the trial court erred in failing to identify any
dispute about material facts. (
Pleadings
Plaintiff
started working for the County in July 2001 and eventually attained the
position of Records Management Technician II.
She went on an extended medical leave in mid-2004 as the result of a
poisonous spider bite. Though she was
preparing to return to work, the County fired her at the end of August
2005. She prevailed in a grievance over
this action in late 2005, and returned to full-time work in 2006. After her return to work, defendant Williams
“and others†harassed her in actions that included an October 2006 negative
performance evaluation and change in office location.
Plaintiff’s
employment “progressed†until a fall at work in July 2008, when she tripped on
a pencil. She underwent many months of
medical care, but was able to return to work while undergoing treatment. She continued to experience unspecified
adverse employment actions “culminating†in an October 2008 meeting, where the
individual defendants were sitting in a room with “numerous medical recordsâ€
that the County had received from plaintiff’s physician and made clear to
plaintiff that they had reviewed the confidential medical information in the
records.
In
March 2009, plaintiff admitted herself into an unspecified recovery
program. After her return to work in
June 2009, the County gave her a 30-day written layoff notice on September 15, 2009. As earlier noted, this
action commenced on October 5, 2009. Plaintiff alleged that she had exhausted her
administrative remedies under the FEHA, and either had complied (or was excused
from complying) with the Government Claims Act (Gov. Code, § 810 et
seq.).
The
pleading alleged that there was a course of discrimination against her based on
her ongoing medical disabilities, but specified only the 2009 layoff. With respect to age and sex discrimination,
the pleading averred only that plaintiff was female and over 40. In connection with the harassment based on her
physical disability, the pleading identified the 2005 termination, the October
2006 relocation of her work area and negative performance evaluation, and the
October 2008 meeting where her medical records were present. Plaintiff asserted the County had violated
its duty under the FEHA to prevent harassment because it did not take any
action in response to her complaints, save to lay her off. Alternately, plaintiff asserted the County
had retaliated against her in violation of the FEHA for complaining on “severalâ€
unspecified occasions about differential treatment; the complaints included her
responses to performance evaluations and grievance procedures, and “disclosing
to Gayla Trumbo†(a party not otherwise identified in the pleadings, but
identified in the motion for summary judgment as the head of the County’s
personnel department) “the numerous violations and [the] unlawful conduct which
occurred in October 2008.†The pleadings
listed only the change in her work area, negative performance evaluation
some unindicated manner) of her confidential medical information as the
incidents of differential treatment about which she had made complaints.
the events at the October 2008 meeting were a violation of Civil Code
section 56 et seq., because defendants disclosed and disseminated her
confidential medical records.
Plaintiff does not provide any analysis of the elements of her FEHA
or breach of medical confidentiality causes of action, and her sole substantive
argument does not require us to engage in this process. We thus proceed to the facts presented to the
trial court.
Evidence
Again,
plaintiff does not argue that the trial court erred in failing to identify any
material issue of triable fact. We
therefore rely on the parties’ separate statements of undisputed facts, without
delving into the evidentiary underpinnings or reiterating any arguments about
them.
In
December 2002, plaintiff unsuccessfully applied for the position of Assistant
Clerk-Recorder. In March 2003, she
unsuccessfully applied for the position of Election Specialist. (These two occasions were the basis for the
allegation above of a failure to promote).
When
the County fired plaintiff in 2005, it asserted she had failed to provide
timely medical excuses for her handicap leave, and it was also unable to
accommodate any modifications in her job duties for her ongoing
handicap. Plaintiff filed a grievance
about her dismissal, but did not assert it had any relation to handicap
discrimination. However, she spoke with
the DFEH about her perceived handicap discrimination, and she also testified to
this effect at the arbitration hearing on her grievance over her dismissal. The County reinstated her in 2006 after
plaintiff prevailed in the arbitration.
In
October 2006, the County changed plaintiff’s job site and gave her a negative
performance evaluation. Her response to
the evaluation did not assert any claim of handicap discrimination.
Defendant
Stane initiated a meeting with plaintiff in October 2008 (at which the other
individual defendants were present) in order to have plaintiff review
information in her worker compensation file from plaintiff’s doctor. Defendant Stane had received information from
plaintiff’s doctor about plaintiff’s prescription medications, which was
unrelated to plaintiff’s pending worker compensation claim. Defendant Stane wanted to notify plaintiff
about her doctor’s error, and let her know this information would be destroyed. Plaintiff thought the three defendants
smirked at her when she walked in.
Defendant Stane had the file in her lap, and handed it to plaintiff to
review. Plaintiff notified Trumbo about
the meeting, without providing any particulars, and stated she would be taking
appropriate action through other avenues.
Plaintiff never told Trumbo that she had any issues about
Stane had shared the contents of the medical records with the other individual
defendants present at the meeting, or that the medical information had also
been shared with three other people, all the individuals other than defendant
Stane denied any knowledge of the contents, and plaintiff could not otherwise
corroborate her speculation to the contrary.
Plaintiff
received a negative performance evaluation in July 2009. Her response did not raise any issue of
handicap discrimination.
In
August 2009, the County’s chief budget official wrote a memo to the County’s
Board of Supervisors that identified a budgetary shortfall, and recommended
eliminating all three positions in the records management department (along
with two other county positions). The
Board considered these recommendations at its open session, where defendant
Williams asked that at least one position be preserved to allow for maintenance
of the software system and accessing archived documents. On September 15, 2009, the County enacted a resolution eliminating the two existing
Records Management Technician positions (and the two other county positions),
citing the budget shortfall; it kept the position of Records Management
Coordinator, which was the most senior.
Neither the memo nor the resolution identified the affected incumbent
employees by name.
The
County gave plaintiff a 30-day notice of layoff on the date of the
resolution. At the same time, plaintiff
received a favorable evaluation with a recommendation for a merit increase.
Plaintiff
filed a tort claim against the County on September 28, 2009. Plaintiff filed an
administrative charge with the Department of Fair Employment and Housing (DFEH)
on October 4,
2009, which identified only the October
2008 meeting about the medical records, a withholding of unspecified salary
increases, and the elimination of plaintiff’s job position as the bases for her
claim. She designated theories of
discrimination on the basis of age and handicap, retaliation, failure to
prevent discrimination or retaliation, and a breach of medical record
confidentiality. She did not mention sex
discrimination. The DFEH issued an
immediate right-to-sue letter.
In
response to discovery requests, defendants established that plaintiff’s claim
of handicap discrimination was based on her 2005 termination, the October 2006
negative performance review and change in job site, the October 2008 meeting,
and her 2009 layoff. Her claim of
October 2008 meeting. The sole bases for
plaintiff’s claims of age and
stemmed from the decision to lay off plaintiff, a woman over the age of
40. However, all three employees in her
department were women over the age of 40, and the only employee not subject to
layoff was 13 years older than plaintiff.
The actions for which she claimed defendants retaliated against her were her grievance of the 2005 dismissal,
the response to the October 2006 negative performance evaluation, complaints to
her union representative (which did not mention discrimination or harassment),
complaints to Trumbo about the October 2008 meeting (which also did not mention
discrimination or harassment), an attempted grievance of the negative July
2009 performance evaluation, the September 2009 tort claim, and the October
2009 DFEH complaint.
Ruling
The
trial court concluded plaintiff’s claim of handicap discrimination could not
include anything other than the October 2008 meeting and her layoff, because
she had not included the remainder of the actions in her DFEH complaint and
therefore she had not exhausted her administrative remedies as to them. The October 2008 meeting was not any sort of
adverse action, because it did not affect any of the terms and conditions of her
employment. As for the layoff, the County
presented evidence of a legitimate business reason and plaintiff had failed to
produce any evidence from which an inference of pretext could be drawn.
discrimination foundered on the absence of any evidence that the County had
treated younger employees in a more favorable manner, and the uncontradicted
legitimate business reason for the layoffs.
The claim of sex discrimination was barred for failure to exhaust her
administrative remedies (because she did not include this theory in her DFEH
complaint) and, again, because the County had an uncontradicted legitimate
business reason for the layoff.
In
connection with the claim of harassment on the basis of handicap, the trial
court concluded that the statute of limitations barred the inclusion of
any acts that antedated plaintiff’s DFEH complaint by more than one year, which
excluded consideration of any conduct before the October 2008 meeting. The continuing violation exception did not
apply, because the acts overall were infrequent and dissimilar, and each act
had a degree of finality of its own (the court citing Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 (
insufficiently severe or pervasive enough to constitute an actionable
harassment. As a result, the County
could not be liable for failing to prevent harassment that did not occur.
Plaintiff’s
claim of retaliation for activity protected under the FEHA was limited to her
filing the tort claim against the County and the complaint with the DFEH,
because none of her other “reports†expressly specified any protected basis
under the FEHA. The tort claim and the
DFEH complaint succeeded any adverse action on the part of the County, and thus
could not be the basis of a claim for retaliation. The trial court also found that plaintiff had
failed to exhaust administrative remedies for conduct antedating October 2008,
and the statute of limitations precluded any consideration of it as well.
Finally,
with respect to the claim of a breach of
confidentiality, the trial court held that defendant Stane was entitled to
consider plaintiff’s confidential medical information in connection with her
processing of plaintiff’s worker compensation claim. Plaintiff had otherwise failed to establish
that anyone else was ever privy to the records.
DISCUSSION
I.
Continuing Violation Doctrine
In
the first argument, which as noted commences in midstream, plaintiff asserts
her “view†that defendants’ “2008 violation†of the law (presumably the meeting
that involved her medical records) “was directly attributable to†the 2005
dismissal that she now characterizes as disability-related, based on her
undisputed assertion that she had “contacted†DFEH and testified to this effect
in connection with the arbitration of her previous dismissal. She then asserts without any analysis that
the doctrine of continuing violation allows her to sue in the present action
for the previous dismissal, because there were unspecified “ongoing, sustained, disputed issues of discrimination
and retaliation.â€
This
argument is limited to an exception to the statute of limitations that it does
not analyze in light of the facts of the present case, and fails to identify
any evidence of incidents other than the ones to which we have previously
referred. We may thus confine ourselves
to observing that each of the earlier specified incidents acquired a sufficient
degree of permanence to preclude application of the theory of a continuous
violation. (Richards, supra,
26 Cal.4th at p. 823.)
The
argument also entirely disregards the finding that the October 2008 meeting was
not itself an adverse action (nor was it severe enough to constitute
harassment), or the finding that plaintiff had failed to produce any evidence
to rebut the County’s asserted legitimate business reason for the layoff. We therefore reject plaintiff’s claim of
error for failure to identify prejudicial error in the ruling of the trial
court regarding her theories of discrimination, harassment, and
retaliation.
II.
Denial of Continuance to Conduct Discovery
Under
“Second Cause of Appealability,†plaintiff asserts the trial court denied
“vital additional discovery time†to conduct various depositions (the exact subjects
of which we do not need to identify).
The sole factual basis plaintiff provides for this claim are the court’s
minutes at the unreported hearing on the motion, in which her trial counsel
requested leave to file “supplemental pleadings†that are not part of the
appellate record. (Her attorney had also
requested at the conclusion of the opposition brief that the trial court grant
leave to conduct additional discovery if
the court found it required additional evidence to rule on any issue.) In this vein, plaintiff asserts that
defendants had been “flouting†discovery requests in violation of various laws,
which led her to file a criminal complaint with the district attorney in April
2012 (a fact for which she does not supply any citation to the appellate
record, and which we accordingly disregard).
Out of the blue, she then cites an inapposite case only by name and
docket number (which also does not appear in her table of authorities) in which
(according to plaintiff’s digest of it) a plaintiff produced evidence of pretext sufficient to establish a triable
issue of fact on a claim of retaliation.
Plaintiff
has failed to identify the factual basis for her claim of error regarding the
supposed denial of a continuance to conduct additional discovery (including any
finding that defendants had flouted discovery requests, any actual request for
further discovery, any necessary affidavits in support, or any actual denial of
further discovery), or provide any analysis of the factors relevant to the
analysis of whether this supposed ruling was an abuse of discretion. (Cooksey
v. Alexakis (2004) 123 Cal.App.4th 246, 254-259; FSR Brokerage, Inc. v. Superior Court (1995)
35 Cal.App.4th 69, 75-76.) We
therefore decline to consider this claim of error further under the principles
we have set out in the Preface.
Plaintiff’s
tangential citation to Dawson
(9th Cir. 2011) 630 F.3d 928 is a lurking argument unrelated to the main
theme of her claim of error, and ignores the finding that she did not produce any evidence to rebut the County’s claim of a
legitimate business reason for the layoff (which renders the case
inapposite). As a result, we do not need
to respond to her citation of the case.
III.
Failure to Exhaust Administrative Remedies
Finally,
under “Closing Argument,†plaintiff contends the trial court erred in finding
that she had not exhausted her administrative remedies regarding the 2005
dismissal, the 2006 negative performance evaluation, and the 2006 change of
office, citing only the entirety of
her opposition to the motion without further specification of the
initiated an administrative action in connection with these events.
plaintiff adds a claim that the trial judge erred in failing to respond to
requests for alternative dispute resolution or a settlement conference (for
which she yet again does not provide any citation to the record in
support).
Again,
plaintiff has failed to identify evidence adequately in support of her claim
that she exhausted her administrative FEHA remedies in connection with these
other incidents, even if such evidence does exist in the record. Plaintiff has further failed to provide
adequate analysis of the finding that the statute of limitations bars any
liability for these other incidents in any event because the theory of
continuous violation does not apply. We
therefore decline to give further consideration to this claim of error.
Her
claim that the trial court erred in failing to honor requests for alternative
dispute resolution or a settlement conference is entirely unrelated to the main
thesis of her claim of error, and lacks proper identification of any evidence
in the record to support it. We
therefore decline to give it any further consideration.
DISPOSITION
The
judgment is affirmed. Defendants shall
recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
BUTZ , J.
We concur:
HULL , Acting P. J.
HOCH , J.
name="_ftn1" title="">[1] The pleading engages in the
common loose practice of calling these causes
of action without regard to whether each one actually constitutes a
separate invasion of a separate primary right, as opposed to
of liability. (Cullen v. Corwin (2012) 206 Cal.App.4th 1074, 1076, fn.
1.)
of Lab. Code, § 1102.5) was subject to a demurrer, which the trial court
sustained without leave to amend in July 2010.
