Filed 8/5/26 Mata v. Kaiser Foundation Hospitals CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
GUSTAVUS MATA, B328606
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 21STCV23460
v.
KAISER FOUNDATION
HOSPITALS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Randolph M. Hammock, Judge. Affirmed.
Gustavus Mata, in pro. per.; Tajsha Thomas for Plaintiff
and Appellant.
Lagasse Branch Bell + Kinkead, and Lisa M. Magorien for
Defendant and Respondent.
_________________________
Appellant Gustavus Mata, a registered nurse, brought this
action against his employer, Kaiser Foundation Hospitals
(Kaiser), alleging 11 causes of action for violations of the
California Fair Employment and Housing Act (FEHA),
Government Code section 12900, et seq. Mata now appeals the
trial court’s grant of summary judgment in favor of Kaiser.
Mata has forfeited several of his claims by failing to
adequately brief them. For the remaining cognizable claims, we
find no error and affirm the grant of summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Second Amended Complaint (SAC)
On May 12, 2022, Gustavus Mata filed the operative second
amended complaint for damages (SAC). The SAC alleges
11 causes of action for 1) disability discrimination in violation of
FEHA; 2) failure to accommodate in violation of FEHA; 3) failure
to engage in the interactive process in violation of FEHA;
4) harassment in violation of FEHA; 5) retaliation in violation of
FEHA; 6) race discrimination in violation of FEHA; 7) national
origin harassment in violation of FEHA; 8) wrongful termination
in violation of FEHA and public policy; 9) failure to prevent
discrimination, harassment, and retaliation in violation of FEHA;
10) hostile work environment; and 11) gender discrimination in
violation of FEHA.
Factually, the SAC alleges that in January 2010, Mata was
hired and employed by Kaiser as a registered nurse at the
medical center (LAMC) located at 4867 W. Sunset Blvd. in Los
Angeles. Mata is a Filipino American. In 2016, Mata developed
“work-related psychiatric stress which led to chronic stable
angina.” In 2017, he filed for workers compensation benefits “for
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injuries arising out of his employment” with Kaiser. In June
2018 he requested industrial leave to undergo triple heart bypass
surgery. The leave was granted and he underwent the surgery.
By April 2019, Mata had recovered from surgery. He
returned to work between the first and second week of April
2019. On May 31, 2019, he was involved in a car accident and
suffered injuries to his neck, requiring surgery. He requested
and received another leave of absence on or about June 4, 2019.
On December 10, 2019, he underwent neck surgery for his
injuries.
On May 28, 2020, he was cleared to return to work with
modified duties. He was advised that he was scheduled to work
on July 26 and 27, 2020. However, on July 28, 2020, Kaiser
notified Mata that he should not have been scheduled for work
before he took and passed a new employee orientation and a
Prophecy Assessment Test.
We note here that according to the SAC, Mata objected to
imposition of the requirement that he take a Prophecy
Assessment Exam. On summary judgment, he objected to taking
an EKG exam that Kaiser said was mandatory for all employees,
like him, working in coronary care units. He apparently dropped
his claims about the Prophecy Assessment Exam. Mata never
formally amended the SAC to correct or add allegations to his
contentions. In this opinion we proceed on the assumption that it
is the taking of the EKG exam that is the basis of Mata’s claims.
Mata demanded to be paid for July 26 and 27 and to be
scheduled for work now that his doctor had cleared him to return
to work. Kaiser employees and managers told him that if he did
come to work before he had passed the test, they would escort
him out of the building and remove him from the schedule for the
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coronary care unit where he worked. Mata asked to be returned
to work without taking any of the exams Kaiser was insisting he
pass.
Mata took the Prophecy Exam [in fact, the EKG exam]
under protest on August 12, 2020. He was told he failed the
exam. Mata demanded to see the results but Kaiser refused
without offering any explanation. Kaiser refused to provide
reasonable accommodations and refused to engage in an
interactive process to determine what reasonable
accommodations could be made. Kaiser then removed him from
the nursing schedule. Mata further averred that a “White
Caucasian nurse” received favorable treatment because she was
permitted to return to work without taking any exams.
Mata alleged Kaiser’s actions resulted in discrimination
and disparate treatment against him based on his race, national
origin, and disability. Mata averred that his “race, the color of
his skin, and his national origin as a Filipino was a substantial
motivating factor in [Kaiser’s] decision to take adverse
employment actions against him.” He also alleged he was subject
to harassment and retaliation by his superiors and managers for
seeking accommodations for his disability, refusing to tolerate
bullying, abuse, and humiliation from other employees, and for
reporting the same behavior. Mata alleged he “was willing and
able to perform the essential job duties of his position or other
suitable positions if reasonable accommodation had been made.”
Mata’s FEHA claims arise from the allegation that Kaiser’s
refusal to allow him to return to work resulted in an “effective[]
terminat[ion.]”
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II. Kaiser’s Motion for Summary Judgment
On November 17, 2022, Kaiser moved for summary
judgment. In a nutshell, Kaiser contended it was entitled to
judgment as a matter of law because the undisputed facts
established that Kaiser had implemented the EKG exam as
mandatory for all employees (while Mata was on leave) and Mata
could not produce evidence of pretext, discrimination of any kind,
retaliation or failure to accommodate his disabilities. Kaiser
offered Mata assistance in retaking the exam he failed and
granted every medical leave he requested, resulting in 26 months
of medical leave.
Kaiser contended that at his deposition, Mata could not
identify a single negative comment or conduct based on race,
gender, or disability. He confirmed Kaiser readily accommodated
his disability and properly communicated with him along the
way. He confirmed he never received criticism for any of his
complaints and was not treated differently for lodging complaints
or requesting accommodations.
Kaiser argued it was undisputed that the hospital
implemented an EKG exam as a required competency exam for
registered nurses to continue practicing in EKG-related
departments, like Mata’s coronary care unit. On August 12,
2020, Mata took and failed the EKG exam. He was told he failed
the exam and that he could not return to work until he passed it,
as it was a required competency validator for his position in the
coronary care unit. The hospital scheduled him to retake it on
August 17, 2020. Mata acknowledged that management made
attempts to help him prepare for the EKG exam so he would pass
it on his second attempt.
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Kaiser contended Mata did not retake the exam on
August 17, 2020. He produced a doctor’s note taking him off
work from August 26, 2020 through September 3, 2020. Kaiser
approved the leave and rescheduled the exam for September 8,
2020 but Mata called in sick on that date. Kaiser rescheduled the
exam for September 16, 2020. Mata did not take the exam on
that date. He continued to submit doctor notes extending his
medical leave for over two years. Kaiser approved all his leave
requests.
In support of its motion, Kaiser presented a Declaration of
Julie Fisher, a human resources consultant at Kaiser Foundation
Hospitals’ Program Office. She stated that the LAMC Coronary
Care Unit currently employs 107 registered nurses, of which
87 are identified as Asian, representing 74 percent of the
workforce within the unit. Mata is a registered nurse for that
unit currently on medical leave. On April 16, 2019, she received
an email from Mata complaining that department administrator
Jill Frey acted inappropriately when she stood at a nursing
station and waved papers at him. Fisher investigated the
complaint and found no evidence of harassment or inappropriate
behavior. She told Mata she could not substantiate his claims.
Kaiser also presented a Declaration of Joyce Leido, the
Chief Nurse Executive at LAMC since 2021. She oversees
nursing clinical practice and ensures competency requirements
for safe patient care. From 2016 to 2022, Leido was Assistant
Medical Center Administrator for Nursing Practice at LAMC. In
that position Leido determined that LAMC did not have an
ongoing method in place to assess the competence of its nurses.
Specifically, unlike other Kaiser Hospitals, LAMC did not require
its nurses to take an EKG assessment exam annually to validate
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competency. In 2018, she implemented both the Prophecy
Assessment Exam and EKG exam at LAMC. The Prophecy
Assessment Exam is used by many leading hospitals across the
United States and has assessed the clinical knowledge and skills
of at least 30 percent of U.S. nurses in the last six years. The
Prophecy Assessment Exam is not punitive and is simply used to
determine whether nurses may need more training.
The EKG exam is a required competency exam for nurses
to continue practicing in EKG-related departments, like LAMC’s
coronary care unit where Mata worked. It is a standardized
exam and each nurse takes this exam based on the unit where
they work. Leido implemented the EKG and assessment exams
in 2018, after discovering LAMC did not administer the exam like
all other Kaiser hospitals.
The overall pass rate for the EKG exam on the first try is
95 percent. Nurses who fail the EKG exam have an opportunity
to retake it. Kaiser does not discipline or terminate anyone
because of their Prophecy Assessment Exam scores, nor did it
discipline or terminate Mata for refusing to take the Prophecy
Assessment Exam. Mata took the EKG exam on August 12, 2020
and failed. He has not retaken and passed the EKG exam and is
not currently qualified to perform work in the coronary care unit.
The policy applies to all nurses working in that unit. All
registered nurses, licensed vocational nurses and staff caring for
cardiac monitored patients must successfully complete an
ongoing EKG competency validation as appropriate.
Kaiser also submitted a Declaration of Oscar Garcia
Padilla, a human resources case manager with the Integrated
Disability management. On September 30, 2022, he personally
mailed a letter to Mata extending Mata’s medical leave through
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December 31, 2022, as a reasonable accommodation to him. Mata
had been on leave since August 26, 2020. Mata was entitled to a
two-year leave under his collective bargaining agreement and
that leave was set to expire September 28, 2022. The letter
informed Mata that if he did not contact Padilla by December 24,
2022, Kaiser would presume Mata did not intend or was unable
to return to work in any capacity. Mata never responded to the
letter.
Mata’s sworn deposition testimony was also submitted in
support of the motion for summary judgment.
• He could not recall if he observed anyone treating
him differently because of his specific medical
conditions.
• He could not recall if he heard anyone make any
specific negative comments about his specific medical
condition.
• No one discouraged Mata from taking a medical
leave.
• He understood that Kaiser extended his disability
leave for 26 months as an accommodation to him,
even though he was entitled to 24 months only.
• He could think of no time when Kaiser did not
promptly communicate with him about his request
for medical leave.
• He could not recall hearing anyone at Kaiser make
any comments or engage in any conduct that he
thought was negative about Filipino workers.
• He could not recall observing anyone treating him
differently because of his race.
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• Kaiser approved each of his medical leaves and never
denied him an accommodation.
• He was never disciplined for any complaint he
brought during his employment.
• He understood Kaiser would not clear him to return
to work as a nurse in the coronary care unit until he
passed the EKG exam.
• Kaiser reached out several times to discuss the EKG
exam with him and offered him assistance with exam
preparation from both the Director of Education at
Kaiser and an instructor.
• He was unaware of any coronary care nurses allowed
to report to work without passing the EKG exam.
• He agreed it was important to assess the clinical
knowledge and skills of a coronary care unit nurse to
ensure patient safety.
• He agreed he would take the exam once it is included
in the union collective bargaining agreement.
• He testified that he would not take the exam because
it was a “business scheme” impacting patient care
and the career of nurses.
• He did not know if anyone at Kaiser was terminated
for failing the Prophecy Assessment Exam.
• He presented no evidence that he had been
disciplined for filing grievances against staff at
LAMC, although he believed accusations made
against him for patient care infractions were
retaliatory.
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III. Mata’s Opposition to the Motion for Summary
Judgment
Mata opposed summary judgment. In support of his
opposition, Mata presented his sworn declaration which
contradicted much of the prior sworn testimony he gave during
his deposition. He was hired by Kaiser on January 18, 2010, and
was employed in the coronary care unit (CCU). In 2016, he
developed work-related psychiatric stress which led him to suffer
chronic stable angina. In November 2017, he applied for workers
compensation benefits for cumulative trauma injuries for
psychological injuries as well as for orthopedic and internal
injury. In July 2018 he asked for industrial leave to undergo
triple heart bypass surgery. On May 31, 2019, he was involved in
a non-work-related automobile accident and sustained injuries to
his neck which necessitated neck surgery. On December 10,
2019, he underwent neck surgery for the injuries sustained in the
automobile accident.
On May 29, 2020, his physician issued a medical clearance
allowing him to return to work with modified duties. At that
point, he had been on medical leave for less than one year.
Kaiser did not allow him to return to work and on July 29,
2020, he received a voice message advising him that he would not
be given a work schedule unless he underwent a new employee
orientation and passed a Prophecy Assessment Exam. He was
not permitted to return to work and he was harassed by
supervisors at Kaiser who told him if he did attempt to return to
work, he would be escorted out of the LAMC building.
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On August 12, 2020, he took the EKG exam. He was
advised that he failed it, but he was not allowed to inspect the
result to determine whether he actually failed the exam. Kaiser
refused to show him the exam. He objected to taking the exam as
he was not a new employee and he objected to Kaiser making the
EKG exam mandatory when it had not previously been
mandatory. Due to his psychological disability, including very
high levels of stress and anxiety, he objected that he could not
perform well while taking an exam under strict timed conditions
and he asked for accommodations to take the exam. His request
for accommodations was not met. He had not been permitted to
return to work and has obtained a medical leave from Kaiser. He
was never advised that it was a required competency exam and
was never previously advised he could not return to work without
passing the EKG exam. He argued Kaiser had no authority to
unilaterally impose a mandatory EKG exam on nurses employed
in the coronary care unit, as he was.
Mata “believed” the exam was used to force him out of
Kaiser. He believed Kaiser’s supervisory employees wanted to
get revenge against him for filing grievances and the EKG exam
was used as a tool to force him out of Kaiser. He believed false
accusations leveled at him by Kaiser’s supervisory employee were
intended to retaliate against him for filing grievances and
complaints of discrimination, harassment, and retaliation against
Kaiser’s supervisor employees. The false accusations were
intended to discourage him from taking medical leave and to
retaliate against him for having requested it. He believed he was
singled out, discriminated, and harassed due to his disability and
due to his physical and psychological medical conditions.
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Mata cited two instances of alleged discrimination. In May
2018, he asked a fellow employee for a copy of the previous EKG
exam. The employee refused to give it to him in a blunt and rude
manner. He believes the employee singled him out due to his
disability. He also heard that same employee say that middle
aged men were more prone to depression compared to people who
were not male and middle aged. He believes the employee was
singling him out for complaining about his own depression.
On another occasion, when he requested an N95 mask, a
Caucasian employee gave him a direct order to leave the hospital.
He complied with the order because he was afraid she would
make a false accusation against him.
Based on these facts and his “personal experiences at
Kaiser,” Mata believes he was targeted and discriminated against
and harassed due to his race and national origin and because he
speaks English with a Filipino accent and identifies as a Filipino-
American. He also believes he suffered discrimination due to his
male gender and because he was allegedly speaking “loudly” in a
hostile tone of voice. He generally observed female employees at
Kaiser were treated favorably compared to male employees.
In support of his allegations, Mata submitted several
exhibits.
• Exhibit 8 is a “[v]oice [t]ranscription” dated August
20, 2020, from the staffing office advising Mata that
he did not show up for the EKG Test that morning
and they were calling to make sure he was ok. The
message asked him to give the staffing office a call
because appearing for the test would otherwise be
considered a ‘no call no show.” A second voice
transcription from August 1, 2020, is also from the
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staffing office advising Mata that he showed up for
work the night before despite being told twice not to
return to work until he was cleared for re-orientation
setup scheduled for August 10 and 11. He was told
he would be escorted out of the building if he showed
up again that night.
• Exhibit 9 is a photograph of a security guard who
Mata alleges was harassing him and following him
into the building.
• Exhibit 10 is a photograph of a person filming him on
a phone on September 16, 2021.
• Exhibit 11 is an email chain. On August 12, 2020,
Beth Pell, Department Administrator, gave Mata a
work schedule for three shifts that needed to be
validated for competency in the coronary care unit.
She advised him that on Monday morning he should
report to her to retake his EKG test. She told him he
would not be placed on the schedule without
successful completion of the validation of competency.
Mata responded that he would only meet with
management on Monday in the presence of a nurse
representative of his choice. He reminded Pell that
he was under the supervision of the coronary care
unit, not her and he wanted the same treatment
extended to one Mika Lagman who completed her
associate degree without harassment, intimidation
and “well favorable scenarios.” He hoped “my race
and color of skin will not be hindrance in completing
my re-orientation in CCH.”
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• Exhibit 12 is an email chain between Mata and Paul
Martin, Director of Human Resources. On August 13,
2020, Mata wrote Martin to say he understood
Martin was acknowledging and taking accountability
for an employee’s “failure to act as an unbiased &
responsible HR Labor consultant.” On August 20,
2020, Mata wrote to Martin again that he had
complaints of “discriminatory, harassment,
retaliatory and threatening action” by Nory Sargeant
and Beth Pell. Martin responded on August 20, 2020,
stating that he understood “management has
attempted to engage you in the return to work
process, which includes completion of competency
requirements. It’s my understanding management
has been accommodating your request with respect to
your next EKG exam. In light of your claims of
harassment and discrimination I am attaching the
form you can complete which begins the internal
investigation process into those allegations.”
• Exhibit 13 is an email chain between Mata and Jill
Frey on April 22, 2019. Mata informs Frey that he
wants to complete his re-orientation on April 23 and
will let her know after his third night shift whether
he will need an extension. He advises he will
continue advocating “patient care and well being of
my would be patients.”
• Exhibit 14 is an email from Mata to hospital
administrators Paul A. Grassfield, J. Casey Smith,
and James A. Busalacchi advising them of the
“hostile work environment, discrimination and
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slander I received from the following people: Joyce
Leido, Jill Frey, Sarah Kwan and Bradley Howard.”
He alleged he objects to the Prophecy Assessment
and he experienced rudeness and disrespect from
them during employee gatherings. He asked that
they each be added to his pending grievance case.
• Exhibit 15 is an email Mata sent to human resources
complaining that a fellow employee, Wai Ning Mak,
interrupted his “power nap” in the break room. He
also objected to Jill Frey’s response that the break
room was a public place everyone was allowed to use
at any time. Mata felt like he was being harassed,
Frey was not protecting his rights, and management
was spying on him.
• Exhibit 16 is an email Mata sent to hospital
administrator Paul Grassfield on November 17, 2017,
about an incident that occurred on November 10,
2017, when he was accused by a nurse manager of
inappropriate behavior towards her when he
complained about her conduct.
• Exhibit 17 is a grievance filed on Mata’s behalf by his
union representative.
• Exhibit 18 is a text message Mata received from his
colleague Minda Alona on October 20, 2020, who told
him she agreed with him there were several versions
of the “test” and he was given the “difficult one.”
• Exhibit 19 is a grievance filed by Mata on January
15, 2016.
• Exhibit 20 is a series of two emails dated July 1 and
2, 2015 from Mata to hospital administrators
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detailing unfair labor activity and harassment
against which Kaiser was not protecting him.
• Exhibit 21 is a grievance dated April 22, 2015, that
he was written up for a mistake by another employee
who is also a leader of a union which opposes Mata’s
union. The write up was for the purpose of harassing
Mata and his union.
• Exhibit 22 is a grievance dated March 3, 2015,
directed to “whom it may concern” about a co-worker
representing an opposing union who harassed him
outside the medical center and the medical center
security guard refused to come to his assistance.
• Exhibit 23 is a grievance dated October 29, 2014,
addressed to “whom it may concern” about an
opposing union organizer mocking and harassing
Mata in the hallway outside the staff lounge.
• Exhibit 24 is an email chain dated September 14-16,
2020 between Mata and Hester Randle, CCU Nurse
Manager who is scheduling a meeting with Mata to
review the prior EKG test results the next day and
then scheduling the retaking of the EKG test the
following day. Mata responded by asking for a fellow
employee to be present during the scheduled
meetings. Randle responded that she was
unavailable at the times Mata wanted and continued
to suggest that she could review his answers to the
initial test on Tuesday morning with him and
schedule the retaking of the test on Wednesday.
Mata responded that he was “sick & sickened by the
harassment I’m receiving from management” and
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objected to the arrangements made for the retest, the
persons who were scheduled to help him and the
“threatening and infuriating voicemail” he received
from the person who rescheduled him to take the test
on August 25. He insisted on reviewing the questions
and answers in the presence of his nurse
representative and wanted only certain persons
present as proctors during the test and certain
persons excluded from helping him prepare for the
test. Randle responded that he was scheduled to
retake the test.
• Exhibit 25 is an email chain dated August 13, 2020,
between Mata and hospital administrators Julie
Fisher and Paul Martin in which Mata complains
Fisher racially discriminated against him in favor of
Jill Frey because they are the same race.
• Exhibit 26 is an email dated June 26, 2018, from
Mata to hospital administrators James Busalacchi
and Paul Grassfield wherein Mata believes members
of the staff are “trying to paint my personality as
rude, disrespectful, and intimidating creating hostile
environment.” He hoped his grievances would be
justly resolved before June 29, 2018, as “Justice
delayed is justice denied.”
• Exhibit 27 is an email to hospital administrators
Paul Martin and Paul Grassfield dated December 1,
2017, that Beth Pell “maliciously labeled those people
including me who filed or on work related injury as
‘HORRIBLE’ in front of number of witnesses.” He
asks human resources to investigate her and “include
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her on my case of workplace violence and
harassment.”
• Exhibit 28 is a complaint Mata filed with the EEOC
on April 2, 2021, complaining of Pell’s alleged
comments that employees who file for workers
compensation are “horrible people.” He also accused
Pell and Jill Frey of trying to trick him to prevent
him from obtaining a workers’ compensation claim
form. He alleged discrimination based on race, color,
national origin, gender, age, disability, and engaging
in protected activity. Exhibit 28 also includes a right
to sue letter from the EEOC dated April 9, 2021.
• Exhibit 29 is a return to work with restrictions letter
dated May 28, 2020, signed by Vu H. Le, M.D.
• Exhibit 30 is an email dated October 26, 2020, from
Arturo DeVera, a nurse in the coronary care unit, to
Mata stating out that on August 17, 2020, DeVera
witnessed management telling Mata he could not
work that day. In the email, Mata responded that he
has been racially harassed in the past and is
currently being harassed racially as well.
• Exhibit 31 is an email from Mata to several persons
describing the disrespect he has been subjected to by
human resources and management.
• Exhibit 32 is an email from Mata dated November 2,
2020, to Hester Randle accusing her of making
derogatory comments about him when she allegedly
maliciously accused him of, among other things,
insubordination on September 16, 2020.
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• Exhibit 33 is an email dated September 16, 2020,
from Hester Randle telling Mata that he failed to
report for the EKG retake exam on September 16 and
did not call to explain his absence. Randle sets out
that instead of reporting, Mata sent another email
with conditions under which he would agree to take
the EKG exam, conditions the hospital had
previously refused because they were not part of the
process applicable to all other employees. On
September 15, 2020, Mata ceased further
engagement and told the hospital to just terminate
him. Randle concluded the letter by asking him to
complete the paperwork to resign, if that was his
intention, or to report on September 18 to retake the
test as ordered by the hospital. She ended with a
hope that he would return to work.
• Exhibit 34 is a letter dated April 13, 2021, to Mata
from administrator Julie Fisher reminding Mata that
during his leave, there is no business reason for him
to be in patient care units. She noted that on April
12, 2021, he was seen on the floor handing out
literature to on-duty nurses.
• Exhibit 35 is an email dated July 4, 2018, from Mata
to administrators James A. Busalacchi, Paul
Grassfield and Paul Martin advising that he is
experiencing chest pains caused by the retaliation,
harassment, and verbal defamation and
discrimination that he has experienced which have
led to his health problems.
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• Exhibit 36 is an email chain dated around August 13,
2020, where administrator Beth Pell advises Mata of
the need to retake the EKG test and that he will not
be placed on the work schedule until successful
completion of the test. Mata responds that he will
only meet with management in the presence of a
nurse representative of his choice and requests that
he be treated without harassment, intimidation, and
well favorable scenarios. He notes he is not a
transferee or new employee so “please don’t treat me
like one with intimidation.”
• Exhibit 37 is a letter dated September 30, 2022, from
Oscar E. Garcia, Human Resources Case Manager, to
Mata asking Mata if there are any reasonable
accommodations Kaiser could provide that would
assist him in returning to work. Mata is also
informed that his leave was being extended to
December 31, 2022, to accommodate his condition.
• Exhibit 38 is a grievance dated March 25, 2014,
outlining Mata’s pending grievances.
• Exhibit 39 is a formal contract grievance on Mata’s
behalf by the union labor representative challenging
three corrective actions taken against him for
rudeness and threatening remarks.
Without supporting admissible evidence, Mata alleged
these triable issues of material fact: 1) the EKG exam was not
mandatory; 2) he never failed the EKG exam in August 2020;
3) he was never told the reason why he could not return to work;
4) he did not know he could not go back to work; 5) he believes he
has been terminated from Kaiser; 6) he recalls the employee
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would not give him a copy of the exam because she was biased
against disabled people and middle aged men; 7) he was
subjected to false allegations that he spoke too loudly, threatened
people and that he was not qualified to perform his professional
duties; 8) Kaiser refused to show him the exam he failed;
9) Kaiser did not grant him intermittent leave which he
requested in or about May 2019 due to his on and off chest
pains;10) Kaiser used the pretext he had failed the EKG exam to
prevent him from returning to work at Kaiser; 11) Kaiser refused
to accommodate his modified duties for a whole month. He was
ready to work on May 25, 2020, and they refused to allow him
back to work with pay until June 15, 2020; 12) Kaiser often failed
to promptly communicate with Mata with regards to his request
for medical leave; 13) Kaiser treated him, a Filipino employee,
differently because he speaks English with a Filipino accent and
was criticized for the tone of his voice and manner of speaking;
14) Kaiser spied on him while he was in the nurses’ lounge in
order to harass him; Frey spoke to him disrespectfully and
humiliated him by waiving a piece of paper in front of him in the
presence of others; 15) he denied his conduct was the cause of a
corrective action level 3; 16) he meant to testify at the deposition
that Charge Nurse Samantha Hanes acted in bad faith, not that
he acted in bad faith when he brought a harassment complaint
against her; 17) Kaiser frequently denied him accommodations
for his disability.
Mata argued he was “harassed” by his supervisors, believed
he did not actually fail the EKG exam because Kaiser refused to
show him the results, and objected to the recent implementation
of the EKG exam. Mata further contended his request for exam
accommodations, including more time, were not met. Mata
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averred he was “never made aware that the exam was supposed
to be mandatory, . . . never advised that it was supposed to be a
required competency exam, and . . . never previously advised that
[he] could not return to work without passing the EKG Exam”
and that pursuant to his collective bargaining agreement, “Kaiser
had no authority to unilaterally impose a mandatory EKG exam
on nurses employed in the Coronary Care Unit.” Mata declared
his belief that “the EKG Exam was introduced and used to force
me out of Kaiser and prevent me from working at Kaiser.”
Mata also contended “Kaiser’s supervisory employees
wanted to get revenge against [him] and wanted to discipline
[him] for filing grievances” and that he was subjected to
retaliation and a hostile workplace while employed at Kaiser.
Mata argued he was singled out due to his disabilities, and
suffered “discriminatory remarks during a lecture about both
disabled people and males where [a Kaiser employee] stated that
middle aged men were more prone to depression compared to
people who were not males and not middle aged.”
Mata averred he was singled out and harassed because he
speaks English with a Filipino accent, and suffered gender
discrimination since he was accused of speaking “loudly” and
female Kaiser employees “were treated favorably compared to
male employees.”
IV. Kaiser’s Reply in Support of Summary Judgment
Kaiser’s reply in support of its summary judgment motion
reiterated much of its argument in its initial brief. Kaiser argued
Mata “relies on his own sham declaration to create false
narratives that directly controvert his prior sworn deposition
testimony and the evidentiary record.”
22
Kaiser noted Mata’s declaration contradicted his prior
sworn deposition testimony. “A party cannot raise new issues of
materiality merely by submitting a declaration in opposition to a
summary judgment motion.” (Lewinter v. Genmar Ind., Inc.
(1994) 26 Cal.App.4th 1214, 1223.) When representations in a
plaintiff’s declaration contradict his prior deposition testimony,
the representations are insufficient to defeat summary judgment
and should be stricken by the court. (Collins v. Hertz Corp (2006)
144 Cal.App.4th 64, 79.) It is well settled that in resolving a
motion for summary judgment, courts “ ‘disregard contradictory
and self-serving affidavits of the party.’ ” (Whitmire v. Ingersoll-
Rand Co. (2010) 184 Cal.App.4th 1078, 1087.)
V. The Trial Court’s Ruling
On January 31, 2023, the trial court granted summary
judgment in favor of Kaiser. The trial court stated: “[T]he way it
boils down to is very simple, I think. Here he was required to
pass his exam. You [Kaiser] gave him a couple chances, he didn’t
pass it, that’s why we fired him or did not allow him to return to
work or whatever. That’s really pretty much – well, you do have
to confront, you know, race, gender, sexual, whatever it is, never
entered into play.”
In its written decision the trial court reasoned that Mata’s
“subjective beliefs as presented in this case, absent any
corroborating and competent evidence do not rise to the minimal
required level to create a triable issue of material fact” as to his
FEHA claims. Mata timely appealed from the judgment.
23
DISCUSSION
I. Standard of Review
A trial court grants summary judgment when a moving
party shows there are no triable issues of material fact and the
party is entitled to judgment as matter of law. (Code Civ. Proc.
§ 437c, subd. (c).) “[I]n moving for summary judgment, a
‘defendant . . . has met’ his ‘burden of showing that a cause of
action has no merit if’ he ‘has shown 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. Once the defendant . . .
has met that burden, the burden shifts to the plaintiff . . . to show
that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto. The plaintiff . . . may not
rely upon the mere allegations or denials’ of his ‘pleadings to
show that a triable issue of material fact exists but, instead,’
must ‘set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action or a defense
thereto.’ (Code Civ. Proc., § 437c, subd. (o)(2).)” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
On appeal from summary judgment, we exercise an
independent assessment of the correctness of the trial court’s
ruling, applying the same legal standard as the trial court. (San
Diego Unified Port Dist. v. Gallagher (1998) 62 Cal.App.4th 501,
503.) “In performing our de novo review, we must view the
evidence in a light favorable to plaintiff as the losing party
[citation], liberally construing [their] evidentiary submission
while strictly scrutinizing defendant[‘s] own showing, and
resolving any evidentiary doubts or ambiguities in plaintiff’s
favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763,
768.)
24
“ ‘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.’ ” (Claudio v. Regents of University of California
(2005) 134 Cal.App.4th 224, 230.) “ ‘ “As with an appeal from any
judgment, it is the appellant’s responsibility to affirmatively
demonstrate error and, therefore, to point out the triable issues
the appellant claims are present by citation to the record and any
supporting authority. In other words, review is limited to issues
which have been adequately raised and briefed.” ’ ”
(Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 301
(Abdulkadhim).) “ ‘[D]e novo review does not obligate us to cull
the record for the benefit of the appellant in order to attempt to
uncover the requisite triable issues.’ ” (Claudio, at p. 230.) Put
differently, “to demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal
analysis and citation to the record.” (City of Santa Maria v.
Adam (2012) 211 Cal.App.4th 266, 286–287 (City of Santa
Maria).) “We are not obliged to make other arguments for
[appellant] [citation], nor are we obliged to speculate about which
issues counsel intend to raise.” (Opdyk, v. California Horse
Racing Bd. (1995) 34 Cal.App.4th 1826, 1830−1831, fn. 4; In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“We
are not bound to develop appellants’ arguments for them”].) We
may and do “disregard conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the
reasoning by which the appellant reached the conclusions he
wants us to adopt.” (City of Santa Maria, at p. 287.)
Indeed, the pleadings play a key role and set the
boundaries of the issues to be resolved at summary judgment.
The scope of the issues to be properly addressed on summary
25
judgment is generally limited to the claim framed by the
pleadings. (Jacobs v. Coldwell Banker Residential Brokerage Co.
(2017) 14 Cal.App.5th 438, 444 (Jacobs).)
II. Analysis
A. Summary Judgment on Mata’s First and Sixth
Causes of Action for Disability and Race
Discrimination Was Properly Granted
Generally, to state a claim for discrimination under FEHA,
an employee must show “(1) he was a member of a protected
class, (2) he was qualified for the position he sought or was
performing competently in the position he held, (3) he suffered an
adverse employment action, such as termination, demotion, or
denial of an available job, and (4) some other circumstance
suggests discriminatory motive.” (Guz v. Bechtel National Inc.
(2000) 24 Cal.4th 317, 355 (Guz).) “[A] plaintiff must establish a
causal nexus between the adverse employment action and his
protected characteristic.” (Martin v. Trustees of California State
University (2023) 97 Cal.App.5th 149, 162 (Martin).)
In evaluating claims of discrimination under FEHA, we
apply the burden-shifting approach set forth in McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792. (Guz, supra,
24 Cal.4th at p. 354.) In the context of employment
discrimination cases decided on summary judgment, “[i]f the
employer presents admissible evidence either that one or more of
plaintiff’s prima facie elements is lacking, or that the adverse
employment action was based on legitimate, nondiscriminatory
factors, the employer will be entitled to summary judgment
unless the plaintiff produces admissible evidence which raises a
triable issue of fact material to the defendant’s showing.”
26
(Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344; Guz,
supra, 24 Cal.4th at pp. 355–356; Martin, supra, 97 Cal.App.5th
at p. 150 [“the burden of production shifts to the plaintiff to
present evidence creating a triable issue of fact showing the
employer’s stated reason was a pretext for unlawful animus in
order to avoid summary judgment”].)
1. Discrimination Based on Disability
Evidence of discriminatory motive must be examined
carefully in disability discrimination cases to determine “whether
there is direct evidence that the motive for the employer’s
conduct was related to the employee’s physical or mental
condition.” (Wallace v. County of Stanislaus (2016)
245 Cal.App.4th 109, 123.) “To establish a prima facie case of
mental disability discrimination under FEHA, a plaintiff must
show the following elements: (1) []he suffers from a mental
disability; (2) []he is otherwise qualified to do the job with or
without reasonable accommodation; and (3) []he was subjected to
an adverse employment action because of the disability.”
(Higgins-Williams v. Sutter Medical Foundation (2015)
237 Cal.App.4th 78, 84.)
In the trial court, Kaiser argued Mata had not stated a
prima facie case of disability discrimination because it was
undisputed that (1) the EKG exam was mandatory for all nurses
in Mata’s unit; (2) Mata failed the EKG exam and therefore was
not qualified for his job; and (3) Mata had not suffered any
adverse employment action because Kaiser granted his medical
leave requests, offered him an opportunity to go over the exam
with assistance before retaking it, and did not discipline him.
Kaiser persists in this position on appeal.
27
“If the employer presents admissible evidence either that
one or more of plaintiff's prima facie elements is lacking, or that
the adverse employment action was based on legitimate,
nondiscriminatory factors, the employer will be entitled to
summary judgment unless the plaintiff produces admissible
evidence which raises a triable issue of fact material to the
defendant's showing.” (Caldwell v. Paramount Unified School
Dist. (1995) 41 Cal.App.4th 189, 203; City of Santa Maria, supra,
211 Cal.App.4th at p. 287 [conclusory arguments not supported
by legal authority or analysis are generally disregarded].)
Mata has not refuted these assertions of fact with evidence
of his own. Mata contends his managers and supervisors knew of
his disabilities, “which hinder his ability to perform well in
examinations,” and purposefully imposed the EKG exam on him
as a means of forcing him out of the Coronary Care Unit because
they purportedly knew that he would fail it, and “therefore use[d]
this as a reason or a pretext to wrongfully terminate the
appellant from his employment.”
Mata’s newly proffered contention that he had a disability
that prevented him from taking the EKG test at all is not alleged
in the SAC. Even if it were, his speculative belief that the test
was a pretextual reason to fire him is not supported by any
evidence whatsoever. Mata offered no evidence upon which one
could infer or establish discrimination based on disability. The
trial court properly granted summary judgment in Kaiser’s favor.
2. Discrimination Based on Race
Turning to Mata’s racial discrimination claim, while the
first two elements remain the same, the third and fourth
elements required to state a prima facie case for racial
discrimination are that the plaintiff (3) suffered an adverse
28
employment action, such as termination, demotion, or denial of
an available job, because of his race, and (4) he was replaced by a
member outside of his protected class or other employees were
treated more favorably. (Guz, supra, 24 Cal.4th at p. 355.)
It is undisputed that Mata is a member of a protected class
because he is Filipino.
In the trial court, Kaiser again argued Mata had not stated
a prima facie case for race-based discrimination under FEHA
because 1) he had not passed the EKG exam and therefore was
not performing his job satisfactorily; 2) he has never been treated
differently due to his race; and 3) he could not establish a causal
connection between his race and any adverse employment action.
Kaiser argued Mata had not established pretext because Kaiser
had a legitimate, non-discriminatory reason for refusing to allow
Mata to return to work until after he passed the EKG exam,
because the EKG exam is a required competency assessment for
nurses at Kaiser LAMC and all nurses in Mata’s position must
pass the exam before reporting to work. We agree with the trial
court that Kaiser’s evidence precluded Mata from demonstrating
a dispute of fact as he could not demonstrate discriminatory
animus or pretext.
On appeal, Mata’s argument in support of his racial
discrimination claim is unsupported by legal authority and is
predicated on several conclusory statements and his own beliefs,
including that Mata was performing his job satisfactorily, he did
not receive complaints from patients, and he suffered
discriminatory treatment because he was accused of engaging in
rude, disrespectful, and intimidating behavior. His declaration
also expressly contradicts his prior sworn deposition testimony.
Mata contends he has a “strong Filipino accent while speaking in
29
English” and had “trouble understanding and answering” some of
the questions asked during his deposition.
Mata failed to present evidence that could create a triable
issue of fact as to pretext or racial discrimination. (Foroudi v.
The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1007–1008
[“ ‘The employee’s “subjective beliefs in an employment
discrimination case do not create a genuine issue of fact; nor do
uncorroborated and self-serving declarations”]; Benavidez v. San
Jose Police Dept. (1999) 71 Cal.App.4th 853, 860 [a party cannot
create an issue of fact by a declaration which contradicts his prior
discovery responses]; City of Santa Maria, supra,
211 Cal.App.4th at p. 287 [conclusory arguments not supported
by legal authority or analysis are generally disregarded].)
B. Summary Judgment on Mata’s Second Cause of
Action for Failure to Accommodate Was
Properly Granted
Under section 12940, subdivision (m), an employer must
provide a reasonable accommodation for the “known physical or
mental disability” of an employee. (Gov. Code, § 12940,
subd. (m).) The plaintiff must prove (1) he has a disability under
the FEHA; (2) he is qualified to perform the essential functions of
the position; and (3) the employer failed to reasonably
accommodate the plaintiff’s disability. (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1009–1010 (Scotch).) A
reasonable accommodation is a “ ‘modification or adjustment to
the workplace that enables the employee to perform the essential
functions of the job held or desired.’ ” (Id. at p. 1010.)
The trial court pointed out that in his SAC, Mata framed
this cause of action as a “failure to accommodate his ability to
work” and that Kaiser generally “failed to reasonably
30
accommodate his disability” but later raised a new argument in
his opposition to Kaiser’s motion for summary judgment,
contending that Kaiser instead failed to accommodate his EKG
exam requests for more time due to his “stress and anxiety.”
First, it is well established that the pleadings frame the
issues to be decided on summary judgment. (Jacobs, supra,
14 Cal.App.5th at p. 444.) In a motion for summary judgment,
the defendant need only address the issues raised in the
complaint (Government Employees Ins. Co. v. Superior Court
(2000) 79 Cal.App.4th 95, 98–99, fn. 4), and a plaintiff cannot
create a triable issue by presenting argument or evidence on
issues not raised by the pleadings. (Residential Capital v. Cal-
Western Reconveyance Corp. (2003) 108 Cal.App.4th 807, 829;
Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57
Cal.App.4th 1334, 1342 [“ ‘The [papers] filed in response to a
defendant’s motion for summary judgment may not create issues
outside the pleadings and are not a substitute for an amendment
to the pleadings’ ”] (Tsemetzin).) The trial court properly rejected
Mata’s new argument not alleged in the SAC.
In any event, even if the allegations were properly
presented in Mata’s SAC, the trial court determined Mata never
presented evidence that he informed Kaiser he needed more time
to take the EKG exam, except that he needed a “neutral place to
take the EKG Exam, free from harassment and intimidation . . .
before end of work hours tomorrow.” The trial court also
determined, and it is undisputed, Kaiser offered Mata several
opportunities for assistance with exam preparation before he
retook the exam.
31
Mata now argues on appeal that Kaiser failed to consider
his request for accommodation because it provided him with time
off from work to study for the EKG exam instead of adjusting or
modifying the EKG exam. Again, Mata presents no evidence he
asked for such a modification or adjustment at all. To the extent
Mata asks that he be exempt from the EKG exam, “FEHA does
not obligate the employer to accommodate the employee by
excusing him . . . from the performance of essential functions.”
(Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375.)
Finally, Mata argues Kaiser should have assigned him to a
different position or department that does not require him to pass
the EKG exam but provides no evidence indicating any suitable
position existed despite Kaiser's presentation of evidence, in the
form of Mata's doctor's notes and deposition testimony, that Mata
was off work due to medical leave through the time of the
summary judgment motion. (See Prilliman v. United Air Lines,
Inc. (1997) 53 Cal.App.4th 935, 952.) Mata has not presented a
triable issue of material fact. (Abdulkadhim, supra,
53 Cal.App.5th at p. 301 [review is limited to issues that are
adequately briefed]; City of Santa Maria, supra, 211 Cal.App.4th
at pp. 286–287; Tsemetzin, supra, 57 Cal.App.4th at p. 1342 [“The
[papers] filed in response to a defendant’s motion for summary
judgment may not create issues outside the pleadings and are not
a substitute for an amendment to the pleadings”].)
C. Summary Judgment on Mata’s Third Cause of
Action for Failure to Engage in Interactive
Process Was Properly Granted
FEHA provides a separate cause of action when an
employer fails “to engage in a timely, good faith, interactive
process with the employee . . . to determine effective reasonable
32
accommodations, if any, in response to a request for reasonable
accommodation by an employee . . . with a known physical or
mental disability or known medical condition.” (Gov. Code,
§ 12940, subd. (n).) “ ‘The “interactive process” required by the
FEHA is an informal process with the employee or the employee’s
representative, to attempt to identify a reasonable
accommodation that will enable the employee to perform the job
effectively.’ ” (Scotch, supra, 173 Cal.App.4th at p. 1013.)
“Although it is the employee’s burden to initiate the process, no
magic words are necessary, and the obligation arises once the
employer becomes aware of the need to consider an
accommodation.” (Gelfo v. Lockheed Martin Corp. (2006)
140 Cal.App.4th 34, 62, fn. 22.) “ ‘Liability hinges on the
objective circumstances surrounding the parties’ breakdown in
communication, and responsibility for the breakdown lies with
the party who fails to participate in good faith.’ ” (Scotch, at
p. 1014.)
The trial court again noted Mata’s attempt to introduce
new issues in his opposition to Kaiser’s motion for summary
judgment as to his request for accommodations for the EKG
exam. In his SAC, Mata alleged only that he was willing to
“participate in an interactive process to determine whether a
reasonable accommodation could be made so that he would be
able to perform the essential job requirements for his position or
any other positions” for which he was eligible, but that Kaiser
“failed to participate in a timely, good-faith interactive process[.]”
Kaiser presented evidence that it approved every leave
request and otherwise never denied any of Mata’s accommodation
requests. Mata provided no evidence that Kaiser did not engage
in the interactive process, and, as discussed above, never
33
presented evidence that he initiated the process by informing
Kaiser he needed more time to take the EKG exam, except that
he needed a “neutral place to take the EKG Exam, free from
harassment and intimidation . . . before end of work hours
tomorrow.” To that end, it is undisputed Kaiser engaged with
Mata, including offering him several opportunities for help with
exam preparation and to retake the exam. It is also undisputed
that in response to Kaiser’s offers, Mata requested and received a
subsequent leave of absence. There were no disputed issues of
material fact as to this cause of action and it was properly
rejected by the trial court.
D. Summary Judgment on Mata’s Fifth Cause of
Action for Retaliation Was Properly Granted
The FEHA provides that it is an unlawful employment
practice “[f]or any employer . . . to discharge, expel, or otherwise
discriminate against any person because the person has opposed
any practices forbidden under this part or because the person has
filed a complaint, testified, or assisted in any proceeding under
this part.” (Gov. Code, § 12940, subd. (h).) Employees may
establish a prima facie case of unlawful retaliation by showing
that (1) they engaged in activities protected by the FEHA;
(2) their employers subsequently took adverse employment action
against them; and (3) there was a causal connection between the
protected activity and the adverse employment action. (Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 472.)
On summary judgment, Kaiser offered undisputed
evidence, and the trial court determined, that Mata could not
establish a causal connection between its implementation of the
EKG exam and his protected activities.
34
Mata’s argument before us in support of his retaliation
claim consists of one paragraph, where he contends that Kaiser
committed an adverse employment action when it “sudden[ly]”
imposed the EKG exam on him when he tried to return to work,
thereby “making it impossible for him to get back his job” because
of his “prolonged leave of absence” after his surgeries. Mata’s
argument is entirely speculative and unsupported by any
evidence whatsoever. The trial court properly rejected this cause
of action.
E. Mata’s Eighth and Ninth Causes of Action for
Wrongful Termination and Failure to Prevent
Discrimination, All Derivative of FEHA,
Similarly Fail
Mata’s eighth and ninth causes of action for wrongful
termination in violation of public policy and failure to prevent
discrimination, harassment, and retaliation similarly fail because
these claims are specifically predicated on the same alleged
conduct that form the basis of his FEHA claims.
We note that in granting summary judgment in favor of
Kaiser, the trial court assumed Mata has been discharged or
terminated. (See Romano v. Rockwell Internat., Inc. (1996)
14 Cal.4th 479, 503 [a cause of action for wrongful discharge in
violation of public policy accrues at the time of termination of
employment].) Mata’s cause of action for wrongful termination in
violation of public policy fails because he has not established the
underlying FEHA claims. Because Mata’s underlying FEHA
claims fail, summary judgment was properly granted on the
FEHA-dependent wrongful termination cause of action. (Hanson
v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [“[B]ecause
35
[Mata’s] FEHA claim fails, his claim for wrongful termination in
violation of public policy fails”].)
Similarly, Mata’s ninth derivative cause of action for
failure to prevent discrimination, harassment, and retaliation
fails because he has not established the underlying FEHA claims.
For the same reasons, because Mata cannot establish his
underlying FEHA claims for discrimination, harassment, and
retaliation, the trial court properly granted summary judgment
on his derivative cause of action for failure to prevent the same.
(Scotch, supra, 173 Cal.App.4th at p. 1021 [“An actionable claim
under section 12940, subdivision (k) [for failure to prevent
discrimination or harassment] is dependent on a claim of actual
discrimination [or harassment]”.)
F. Mata Has Forfeited his Fourth, Seventh, Tenth,
and Eleventh Causes of Action
“A point not presented in a party’s opening brief is deemed
to have been abandoned or waived.” (Humes v. Margil Ventures,
Inc. (1985) 174 Cal.App.3d 486, 493.) “An appellate court can
deem an argument waived if it is not supported by analysis or
argument in the appellate briefs.” (Employers. Mutual Casualty
Co. v. Philadelphia Indemnity Ins. Co. (2008) 169 Cal.App.4th
340, 349–350; Associated Builders & Contractors, Inc. v. San
Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2;
Abdulkadhim, supra, 53 Cal.App.5th at p. 301 [review is limited
to issues that are adequately briefed].)
Mata’s opening brief lacks argument and analysis in
support of his claim of error on his fourth, seventh, tenth, and
eleventh causes of action. He has forfeited these claims.
36
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
VIRAMONTES, J.
SCHERB, J.
37