Plummer v. Coen
Filed 1/21/14 Plummer v.
Coen CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
EDWARD
PLUMMER, JR.,
Plaintiff and Appellant,
v.
LAVONNE COEN, et
al.,
Defendants and Respondents.
B243224
(Los
Angeles County
Super. Ct. No.
KC052996)
APPEAL from
a judgment of the Superior Court of Los
Angeles County, Salvatore Sirna, Judge.
Affirmed.
Edward
Plummer, Jr., in pro. per; and Jon Dieringer for Plaintiff and Appellant.
Kamala D.
Harris, Attorney General, Alicia M. B.
Fowler, Senior Assistant Attorney General, Michael E. Whitaker and Bruce
Reynolds, Deputy Attorneys General, for Defendants and Respondents.
_______________________
Edward Plummer,
Jr. sued the Department of Health
Care Services (DHCS) and one of its employees, and the trial court granted
summary judgment in the defendants’ favor.
Plummer appeals, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plummer, a former employee
of DHCS, sued DHCS and its employee LaVonne Coen, alleging that they
discriminated against him based on age and race, and also that they retaliated
against him. The defendants moved for
summary judgment, asserting that the causes
of action were barred by the statute of limitations, res judicata, and
collateral estoppel; that Plummer could not establish a prima facie case of
discrimination or retaliation; that the employment decisions Plummer complained
of were based upon legitimate management concerns and were not discriminatory
or retaliatory; and that the causes of action against Coen all failed because
claims under the California Fair Employment and Housing Act (FEHA) may only be
raised against employers.
Instead of filing a
substantive opposition to the motion for summary judgment, Plummer requested a
continuance of the hearing pursuant to Code of Civil Procedure
subdivision (h). The trial court denied
the request because Plummer had not made the showing required by that
section. The court concluded that the
defendants had satisfied their burden as the moving party and that Plummer had
not provided any substantive opposition to demonstrate any triable issues of
material fact. Accordingly, the court
granted the motion for summary judgment.
Plummer appeals.
DISCUSSION
Service
of the Reply Brief
At the hearing on the motion
for summary judgment, Plummer told the court that he had not been served with
the defendants’ reply brief. The court
consulted the proof of service that had been filed by the defendants, confirmed
that the address on the proof of service was Plummer’s, and then continued with
the hearing. Plummer contends on appeal
that he “testified†that he was not served; that any evidence to the contrary
“must be considered false, misleading, and contrary to what is lawful in a
court of lawâ€; and that he was denied due process when the court continued with
the summary judgment hearing despite his assertion that he was not served with
the reply brief.
Plummer’s
contentions lack merit. The defendants
submitted a proof of service executed by Yuriko Cuan-Claro, an employee of the
Office of the Attorney General, in which she declared that on May 29, 2012, she served the reply memorandum
by overnight FedEx delivery. Pursuant to
section 1013, subdivision (c), service by overnight service is complete when
the item to be served, properly addressed and prepaid, is deposited in a box or
facility maintained by the express service carrier or given to the carrier’s
driver or courier. The sender does not
have the burden of showing that the served document was actually received by
the addressee. (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 361.) Plummer has not established any error in the
court’s reliance upon the proof of service, with confirmation from Plummer that
the address listed there was his correct residential address, to conclude that
the defendants had served the reply brief.
Continuance
Request
Plummer argues that the summary judgment must be reversed because the trial
court failed to grant a continuance for additional discovery pursuant to
section 437c, subdivision (h). Section
437c, subdivision (h) provides that “[i]f it appears from the affidavits
submitted in opposition to a motion for summary
judgment . . . that facts
essential to justify opposition may exist but cannot, for reasons
stated, then be presented,†the court shall deny the summary judgment motion or
grant a continuance to allow additional discovery to be conducted. The party opposing the summary judgment
motion must demonstrate by declaration that the facts to be obtained are
essential to opposing the motion; that there is a reason to believe that the
facts may exist; and the reasons why additional time is needed to obtain the
facts. (Frazee v. Seely (2002) 95
Cal.App.4th 627, 633; Cooksey v. Alexakis
(2004) 123 Cal.App.4th 246, 254.) A
trial court’s decision whether to grant a continuance is reviewed for an abuse
of discretion. (Frazee, at p. 635.)
Plummer declared
that he “is informed and believes that there is essential controverting
evidence to the defendants’ motion for summary judgment/summary adjudication of
the issues which exist but cannot be presented at this time because the
defendants have not produced the evidence, or will not produce the evidence for
reasons such as the defendants[’] belief that said evidence is ‘equally
available’ to both parties.†He wrote
that the “defendants have asserted that there was an agreement, assumedly
between the plaintiff and DHCS, regarding his retirement†and that this
assertion was false. Plummer declared
that he had requested “documents and admissions†from the defendants, and that he
believed that “these and other discovery items are essential and may prove to
be not only supportive of his opposition to the defendants’ motion, but may
prove to be dispositive as well in terms of disputing†eight facts asserted by
the defendants to be undisputed and material.
He stated that his copy of his deposition transcript was incomplete and
that he needed the complete transcript “to dispute defendants’ undisputed
material facts relative to the evidence referenced in said transcripts.†Finally, he declared that the discovery could
be finished by June 26, 2012.
Plummer’s declaration lacked a clear statement of what facts
essential to the opposition existed. He made
no reference to any specific facts or evidence except to say that he disputed
the allegation that there had been an agreement between himself and DHCS as to
his retirement. He did not identify what
facts his outstanding discovery was expected to yield, what rebutting facts
were expected to be developed through further discovery, or why these facts
were essential to oppose the summary judgment motion. “It is not sufficient under the [summary
judgment] statute merely to indicate further discovery or investigation is
contemplated. The statute makes it a
condition that the party moving for a continuance show ‘facts essential to
justify opposition may exist.’ The
declaration indicates [that] . . . depositions remained to be completed and
[plaintiff] had not yet received his expert opinions. However, there is no statement which suggests
what facts might exist to support the opposition to the motions.†(Roth v. Rhodes (1994) 25 Cal.App.4th
530, 548.) Plummer attempts to
distinguish Roth from the present
case, but the cases are similar in that in each case the declaration submitted
to support the request for a continuance of the summary judgment hearing failed
to meet the substantive requirements of section 437c, subdivision (h). (See ibid.) Because Plummer provided only general
information that discovery was not yet complete and conclusory assertions that
the discovery would permit him to oppose the motion, as opposed to a
declaration of the facts that he believed to exist and how they would be
essential to justify opposing the motion for summary judgment, the trial court
did not abuse its discretion in failing to grant his request for a continuance.
Substantive
Challenges to the Summary Judgment Ruling
A motion for summary
judgment is properly granted only when “all the papers submitted show that
there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.†(Code Civ. Proc., § 437c, subd. (c).) A defendant moving
for summary judgment begins with the burden of showing that there is no merit
to a cause of action, and the defendant satisfies this burden by showing that
one or more elements of the cause of action cannot be established or that there
is a complete defense to that cause of action.
(Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing,
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 as to a defense to the
cause of action. (Ibid.) If the plaintiff does not make this showing,
summary judgment in favor of the defendant is appropriate. If the plaintiff makes such a showing,
summary judgment should be denied.
Here, because Plummer does not contend that the defendants failed to
meet their initial burden of showing there was no merit to his causes of
action, we proceed to the analysis of the second step of the summary judgment
analysis: whether Plummer demonstrated
that a triable issue of material fact existed, precluding summary
judgment. While we review a grant of
summary judgment de novo (Intel Corp. v.
Hamidi (2003) 30 Cal.4th 1342, 1348), it is always the appellant’s burden
on appeal to demonstrate that the trial court erred. (Boyle
v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650 [party asserting
trial court error may not rest on the bare assertion of error but must present
argument and legal authority on each point raised].)
A.
Opposition Papers
Plummer contends
that his opposition papers were sufficient to meet his burden to demonstrate a
triable issue of material fact. He argues
that his “opposition paper clearly states, and where it does not state it
infers, that the defendants in this case did explore, plan, or conspire[] to
employ a hiring scheme so as to ‘circumvent’ the usual method of hiring so as
to exclude Plummer from the hiring process.â€
Here, Plummer cites to two pages of his argument in his points and
authorities filed in the trial court in opposition to the summary judgment
motion. We have reviewed these pages and
find that they do not set forth “specific facts showing that a triable issue of
material fact exists†(Code Civ. Proc., § 437c, subd. (p)(2)) as to any of
his causes of action.
First, Plummer
asserted, without reference to supporting evidence, that if the defendants had
“adhered to†the “statutory constraints†that they ignored, this “would have
prevented each and every harmful event mentioned in the plaintiff’s pleading.†This contention, not supported by evidence or
explained in any detail, was insufficient to establish any triable issue of
material fact.
Next, Plummer
observed that the defendants asserted that employment with the State of California is
statutory, but that they had not identified any statute that authorized “the
manner and methods by which the application and hiring process relative to this
action was conducted.†He then noted
that the defendants had stated that statutory provisions controlling the terms
and conditions of his employment could not be circumvented. Although Plummer argues on appeal that this passage
“infers†that there was a conspiracy to circumvent the usual method of hiring, he
made no such argument in this passage, and he neither presented nor described
any evidence of any conspiracy or circumventing conduct by the defendants. This argument is insufficient to demonstrate
a triable issue of material fact.
Finally, Plummer included in his opposition papers a paragraph
concerning an alleged agreement between himself and DFCS concerning his
employment in which he contended that there was no such agreement and that the
“associated facts are disputed.†He
provided no reference to any evidence to demonstrate a factual dispute;
instead, he stated that discovery had been requested and that he believed it
was essential, would support his opposition, and “may prove to be dispositiveâ€
in terms of disputing some of the defendants’ statements of undisputed material
fact. Here, Plummer merely stated that
he disagreed with one of the defendants’ contentions, but he identified no
evidence that would tend to show that a triable issue of material fact existed. Plummer’s opposition papers failed to demonstrate
that triable issues of material fact existed as to the causes of action in his
complaint.
B.
Plummer’s Beliefs
About Retaliation
In Plummer’s other paragraph
of argument concerning the merits of the summary judgment motion, he argued
that he “believes that there is a causal link between his past participation in
protected activity and the DHCS’[s] efforts to hire around him in spite of his
knowledge, skills and experience,†and that he “believes that his failed
attempts at restoring his employment ha[ve] been thwarted by retaliatory
actions on the part of DHCS staff, particularly†defendant Coen. Plummer did not support these statements of belief
with supporting evidence.
Plummer then stated
that the actions of Coen and unnamed others “resulted in the but-for cause of
Plummer’s problems.†He asserted that
Coen was “the conduit of the retaliatory animus toward Plummer.†He claimed that Coen worked in the DHCS
personnel office at all times when actions were taken against him, although to
support these factual assertions he cited to his complaint and to a page of the
defendants’ points and authorities. Plummer
asserted, without citation to any evidence, that “Coen was at all times aware
of Plummer’s conduct and grievances due to her position in the DHCS personnel
section,†and concluded that “[t]o what extent Coen was involved with Plummer’s
constructive dismissal, can only be determined through additional
discovery.†At best, Plummer
demonstrated that Coen worked in the personnel section of DHCS at times relevant
to the litigation, but he did not identify any specific facts or evidence that
tend to support an allegation of retaliatory animus, retaliation, or
discrimination, and he conceded that he had no evidence of her involvement in
what he describes as his constructive dismissal. By this argument, Plummer has not established
any error by the trial court in granting summary judgment, nor has he
demonstrated any triable issue of material fact.
Request
for Judicial Notice
Plummer filed a
request that this court take judicial notice of a number of documents. First, in conjunction with his argument
concerning service, Plummer requested that this court take judicial notice of
the FedEx Airbill for the May 29, 2012, shipment and a
letter from FedEx to counsel for the defendants in which FedEx recounted its
three efforts to deliver the package and its conversations with Plummer in
which Plummer refused delivery of the package.
We deny Plummer’s request with respect to Exhibits A and B because these
documents may not properly be judicially noticed. (Evid. Code, §§ 450-452.)
Next, Plummer has requested
that we take judicial notice of a series of California statutes and
Rules of Professional Conduct (Exhibits C through F). Pursuant to Evidence Code section 451, subdivisions
(a) and (c), we must grant Plummer’s request to take judicial notice of California’s statutory law
and rules of professional conduct.
Finally, Plummer asks us to
take judicial notice of Exhibit G, a letter dated June 27, 2006, addressed to the
Department of Fair Employment and Housing that he contends demonstrates that he
had “complained timely†to the Department of Fair Employment and Housing. This document, which appears not to have been
presented to the trial court and therefore to be outside the record, is not a
proper subject of judicial notice. (Evid.
Code, §§ 450-452.)
DISPOSITION
The judgment
is affirmed. Respondents shall recover
their costs, if any, on appeal.
ZELON,
J.
We concur:
WOODS,
Acting P. J.
SEGAL, J.
name="_ftn1" title="">[1]
further statutory references are to the Code of Civil Procedure.
name="_ftn2" title="">* Judge of the Los Angeles Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
