Filed 9/3/26 Renovato v. Carter’s CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ADRIANA RENOVATO, B340591
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 22STCV15958)
CARTER’S INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michelle C. Kim, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. Rand-
Lewis and Timothy Rand-Lewis for Plaintiff and Appellant.
Littler Mendelson, Helene Wasserman and Nicole
Vongchanglor for Defendants and Respondents.
______________________________
After resigning from her job, appellant Adriana Renovato
(Renovato) sued her former employers, Carter’s Inc. and Carter’s
Retail, Inc. (collectively, Carter’s), as well as her former manager,
Lisa Quibilan (Quibilan), for 14 claims arising from her allegedly
wrongful termination. Carter’s and Quibilan (respondents)
moved for summary judgment as to all of Renovato’s claims. The
trial court granted the motion.
On appeal, Renovato argues that the trial court erred by
disregarding the lengthy, substantive “corrections” she made to
her deposition testimony one week after respondents filed their
motion for summary judgment. She also contests various
evidentiary and procedural rulings, as well as the merits of the
judgment. We find that the court properly disregarded the
purported corrections, and did not abuse its discretion in making
the challenged subsidiary rulings. Moreover, our de novo review
confirms the court’s assessment of the evidence. Accordingly, we
affirm the judgment.
BACKGROUND
I. Renovato’s Employment
Carter’s is a retailer of baby and children’s clothing. In
November 2008, Renovato was hired by Carter’s as a sales
associate.
Upon her employment, Renovato received and read an
employee handbook. The handbook was also made available
online for employees. The handbook outlined Carter’s policies
condemning unlawful discrimination, harassment, and
retaliation. Carter’s Code of Ethics also outlined its anti-
discrimination, anti-harassment, and anti-retaliation policies.
Carter’s had an internal complaint system, and instructed
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employees who believed they or others had been harassed or
discriminated against to immediately report the incident to
Human Resources. Renovato completed five trainings on this
material during her employment.
In October 2010, Renovato internally applied for a
promotion to supervisor at a store in a new location, which would
come with a raise. On her application form, she initialed the
following items:
“I understand that Carter’s Retail, Inc. has no employment
contracts and cannot guarantee the permanence of any position.
I understand that, if I am employed by Carter’s Retail, Inc., my
employment can be affected by such factors as business or
economic conditions, changes in company policies, my job
performance, etc. I also understand that I may choose to leave
Carter’s Retail, Inc. on my own accord.
“I further understand that employment with Carter’s
Retail, Inc., shall be an employment at will, and no terms,
policies, procedures, or rules of employment are guaranteed. I
understand that no employment contracts will be recognized
unless they are expressly stated in writing and signed by an
authorized officer of the company.” (Uppercase omitted.)
These policies are also reflected in the employee handbook.
Renovato interviewed with Quibilan. Quibilan gave
Renovato the promotion.
In January 2012, Quibilan again promoted Renovato to
assistant store manager. In June 2013, Quibilan promoted
Renovato to store manager. Both promotions included raises.
As a store manager, Renovato reported directly to Quibilan.
Six months after becoming store manager, Renovato received
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another raise. Quibilan later transferred Renovato to a new
store, for which she received another raise.
Between September 2016 and November 2017, Renovato
received another raise. In or around November 2017, Renovato
was transferred to another store and received another raise.
In 2019, Quibilan called Renovato to tell her that she had
been selected to apply for the Store Manager Leadership
Academy (the Academy), an internal program that trained store
managers to become district managers. Quibilan advised
Renovato to apply for the Academy, but also told Renovato “to not
get [her] feelings hurt if [she] wasn’t chosen[.]” Quibilan told
Renovato that she “didn’t fit the standard” of the corporate office
because she “was uneducated[,]” her handwriting looked like
“kindergarten writing[,]” and she did not “look like someone [who
worked] in corporate[]” because she was “fat” and “needed to
change the way that [she] dressed” and “use better language[.]”
Renovato was upset and started crying, and ultimately decided
against pursuing a promotion to district manager. She did not
make a complaint about Quibilan’s comments.
In June 2019, Renovato received another raise.
In early 2020, Renovato was transferred to a store in
Glendale, and was asked to manage two stores from that location.
She received another raise. Quibilan also selected Renovato to
close down the Hawaii store. Renovato understood that Quibilan
kept transferring her to new stores and increasing her
responsibilities because she “was capable” and had a proven track
record of “fix[ing] the problem[s]” of different locations.
During the 12 years Renovato was employed at Carter’s
Retail, Inc. she received eight raises. She took maternity leave
twice, once in 2010 and once in 2016. Both times, there were no
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changes made to her position upon her return, except that
Renovato received promotions after her maternity leaves.
Renovato continued to receive regular raises after she returned
from each maternity leave.
Renovato received annual reviews from Quibilan. Quibilan
never gave Renovato a negative review. However, Renovato
claimed that Quibilan occasionally made comments about
Renovato’s weight, including that Renovato “needed to lose
weight” and “get a Lap-Band[.]” She had also insinuated that
Renovato was “dumb” or “stupid[.]” Renovato did not make any
internal complaints about Quibilan’s conduct.
II. Renovato’s Resignation; Subsequent Developments
In March 2020, Renovato was placed on furlough due to the
COVID-19 pandemic. She applied for and received
unemployment benefits.
In early May 2020, Quibilan had four conversations with
Renovato about transferring to a larger store in Commerce that
remained open during the pandemic. In their fourth
conversation, Quibilan pressured her to commit to the transfer.
Renovato declined because her commute would be too long.
Renovato claimed that Quibilan threatened to cut off her
unemployment benefits if she did not comply.
Renovato did not report the conversation. Instead, she
applied for an assistant store manager position at a hardware
store.
On May 15, 2020, Renovato was hired at the hardware
store, for a higher base salary than she made at Carter’s. The
same day, she submitted her resignation to Lynette Gage (Gage),
a human resources officer. Gage called her the same day.
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Renovato claimed that she told Gage that she was resigning
because of Quibilan’s conversations with her earlier that month.
Renovato continued to receive unemployment benefits until
she began work at the hardware store. She received several
raises. By 2022, she was earning over $15,000 more than she
had during her last year working at Carter’s. As of November
2023, Renovato was still working at the hardware store.
On March 4, 2021, Renovato requested her personnel file
from Gage. On March 18, 2021, Gage informed her that she
could pick up her file. Renovato did so.
III. Complaint; Answer
In May 2022, Renovato sued respondents for 14 claims:
(1) breach of express written contract; (2) breach of implied
contract; (3) breach of the covenant of good faith and fair dealing;
(4) wrongful termination in violation of the Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12940 et seq.);
(5) discrimination in violation of FEHA and the California Family
Rights Act (CFRA) (Gov. Code, § 12945.2); (6) retaliation in
violation of FEHA and CFRA; (7) harassment in violation of
FEHA and CFRA; (8) failure to provide time off for child-related
activities (Lab. Code, § 230.8); (9) violation of statutory
protections for whistleblowers (Lab. Code, § 1102.5); (10) failure
to timely provide personnel records (Lab. Code, § 1198.5);
(11) fraudulent inducement; (12) intentional infliction of
emotional distress (IIED); (13) unfair competition (Bus. & Prof.
Code, § 17200 et seq.); and (14) violation of the Consumer Legal
Remedies Act (Civ. Code, § 1750 et seq.). Renovato also sought
punitive damages.
Renovato alleged that respondents “discriminated against,
harassed, retaliated against and wrongfully terminated [her],
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based upon her gender, marital status, disability, perceived
disability, and association with others[.]” She claimed that
Quibilan’s comments towards her constituted harassment,
created a hostile work environment, and caused her extreme
distress.
Renovato’s contract claims were based on her allegations
that respondents promised “she would remain in their employ[,]
would be treated fairly[,] . . . . [¶] would not be arbitrarily
transferred[,] and w[ould] be[] considered for promotion if she
remained at work during the” pandemic. Despite these promises,
Quibilan “forced [Renovato] to transfer or be fired . . . [which]
forced her termination[.]”
In August 2022, respondents filed an answer generally
denying Renovato’s allegations.
IV. Renovato’s Deposition
On November 7, 2023, respondents deposed Renovato. In
addition to the facts outlined above, Renovato denied that any
health care provider had advised her that she had a disability.
Renovato did not consider herself to be disabled, nor did anyone
at Carter’s Retail, Inc. indicate that they thought of her as
disabled. Renovato never asked for an accommodation because of
her weight, or because of her young children.
Renovato said that none of her requests for time off were
denied, and that no “action was taken against [her] because of
any leave of absence[.]” Renovato also denied that “anything
negative ever happen[ed] to [her] affecting [her] employment[.]”
Specifically, she denied that her salary was ever cut, or that
Quibilan ever “demote[d] [her], . . . wr[o]te [her] up, . . . coach[ed]
[her] in a negative fashion[,] . . . . [or] treat[ed] [her] in any way
that . . . impacted [her] employment[.]”
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V. Motion for Summary Judgment
On December 1, 2023, respondents moved for summary
judgment as to Renovato’s entire complaint. Renovato opposed
the motion.
VI. Corrections to Renovato’s Deposition; Continuance;
Motion to Strike; Ruling
On December 8, 2023, Renovato served respondents with
corrections to her deposition. (Code Civ. Proc., § 2025.520,
subd. (b).) Renovato listed over 70 corrections, many of which
were substantial, contradicted her previous answers, and were
not responsive to the question asked. For example:
1. When asked, “Did you reach out to human resources to
complain that you . . . felt unsafe as a result of [Quibilan’s]
comments?[,]” Renovato initially answered, “No.”
She corrected her answer to, “Yes. I told . . . Gage.”
2. When asked, “Did any health care provider ever advise you
that you were disabled?[,]” Renovato initially answered, “No.”
She corrected her answer to: “Yes. During my employment
[Quibilan] told me I had become obese due to post partum
depression, and I was depressed. I began therapy and became
aware that while I was working there I displayed obvious
signs of my depression and health issues to [Quibilan] then to
[Gage], these were causing my obesity which I am now aware
are disabilities as I was advised by my therapist. I was being
abused by [Quibilan] it caused me to be depressed anxious
fearful, to cry in distress in front of her, and I told [Gage] of all
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of this including my distress, depression and fear, I asked
[Gage] to accommodate me by not requiring me to return to
work for her, she said she would accommodate me then never
gave me the promised accommodation.”
3. When asked, “Was there any other conduct of [Quibilan] that
you observed her engage into [with] anyone, other than
directed at you, that you found to be inappropriate?[,]”
Renovato initially answered “Yes.”
She corrected her single-word answer to a repetitive,
confusing, 1,520-word diatribe describing dozens of instances
of alleged misconduct, most of them targeting Renovato
herself. For one example: “[Quibilan] touched me offensively
repeatedly and poked at me with sharp finger nails repeatedly
in an offensive manner that was demeaning and painful,
literally needling me with her finger nails, which she though
[sic] was funny, she would then smirk or laugh after she did
it.” For another: “[Quibilan] threatened to illegally withhold
my unemployment benefit, I then complained to [Gage] and
told her I had no choice but to resign I could not continue to
work for [Quibilan] because of all of her misconduct including
forcing me to take over the Commerce Store and after I told
her multiple times I could not work with her threatening me,
that she had made me do her work for her the whole time I
worked for her and took credit for my work, that many
managers were mistreated by her and that I had to intervene
to prevent them from quitting, told her of the abusive conduct,
that I had been made to suffer break[]downs, that she made it
seem like what she was doing was normal and that I had to
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accept it because she made so much money for the [c]ompany
no one would believe me if I reported her.”
In February 2024, the trial court continued the hearing on
respondents’ motion for summary judgment to July 2024. The
court gave respondents the option of proceeding on the currently-
filed motion, or filing a new motion.
Also in February 2024, respondents moved to strike
Renovato’s deposition corrections, arguing, among other things,
that the purported corrections “ ‘were not corrections at all, but
rather purposeful rewrites tailored to manufacture an issue of
material fact’ ” to defeat respondents’ motion for summary
judgment.
In April 2024, the trial court denied respondents’ motion to
strike Renovato’s corrections. The court opined that the
corrections constituted “a completely egregious situation[,]” but
determined that the law did not “give . . . [respondents a]
remedy[.]” The court found that Renovato was permitted by
statute to make substantive corrections to her deposition within
30 days (Code Civ. Proc., § 2025.250, subd. (b)), and that statute
did not authorize the court to strike corrections. The court also
concluded that the sham declaration doctrine did not support
respondents’ motion to strike the corrections.
VII. Renewed Motion for Summary Judgment;
Opposition; Evidentiary Objections
On April 17, 2024, respondents filed a substantially similar
renewed motion for summary judgment of Renovato’s entire
complaint. To their motion, respondents attached, among other
things, portions of Renovato’s deposition and her corrections
thereto; a declaration from Gage; a declaration for Quibilan;
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Renovato’s 2010 application for promotion; an employee
handbook and various policies; multiple training certificates
earned by Renovato during her employment; Renovato’s
personnel files, documenting promotions, transfers, raises, and
leaves of absence; and an email exchange between Gage and
Renovato regarding personnel files.
Renovato opposed the motion. As an alternative to denial
of the motion, Renovato sought a continuance of the hearing due
to respondents’ alleged failure to produce necessary discovery. To
her opposition, Renovato attached declarations from her counsel;
a declaration from herself regarding her deposition corrections;
and the deposition corrections.
Respondents filed a reply which argued, among other
things, that Renovato should not be able to use sham deposition
corrections to defeat summary judgment.
Both parties made a variety of evidentiary objections.
Respondents raised 25 objections to Renovato’s evidence.
Renovato lodged over 120 objections to respondents’ evidence.
VIII. Reassignment; Ruling; Judgment; Appeal
In June 2024, the matter was reassigned to a new trial
judge.
On August 2, 2024, the trial court granted respondents’
motion for summary judgment in a detailed, 18-page opinion.
The court first addressed various preliminary issues raised by the
parties. The court ruled that respondents’ renewed motion for
summary judgment did not amount to an improper motion for
reconsideration, as it was filed pursuant to the February 2024
order. The court also denied Renovato’s request for a
continuance, finding that she “ha[d] not demonstrated any
diligence in seeking the specific discovery sought [despite] . . .
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be[ing] acutely aware of the necessity of the depositions for at
least eight months[.]”
Most important, the trial court ruled that it would
disregard the corrections to Renovato’s deposition for the
purposes of resolving the summary judgment motion. The court
explained that, while Renovato “was permitted to change her
deposition testimony pursuant to [Code of Civil Procedure,
section] 2025.520, [she] cannot by so doing create a triable issue
of fact in order to defeat a motion for summary judgment.”
(Underlining omitted.)
As to the parties’ evidentiary objections, the trial court
sustained one of Renovato’s objections and partially sustained
another. It sustained five of respondents’ objections. The
remainder of both parties’ objections were overruled.
Turning to the merits, the trial court found that
respondents were entitled to summary judgment as to all of
Renovato’s claims.
On August 12, 2024, the trial court entered judgment in
favor of respondents.
Renovato timely appealed.
DISCUSSION
I. Preliminary Issues
Renovato challenges several express and implied subsidiary
rulings, namely: (1) whether respondents’ separate statement of
facts complied with applicable statutory requirements; (2) the
trial court’s rulings on the parties’ evidentiary objections; and
(3) the denial of Renovato’s request for a continuance. We review
these issues for abuse of discretion. (Collins v. Hertz Corp. (2006)
144 Cal.App.4th 64, 67 [whether a “party failed to comply with
12
the requirements for the separate statement is reviewed for
abuse of discretion”]; Serri v. Santa Clara University (2014)
226 Cal.App.4th 830, 852 (Serri) [“According to the weight of
authority, appellate courts ‘review the trial court’s evidentiary
rulings on summary judgment for abuse of discretion’ ”]; Cooksey
v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey) [“[W]e
review the trial court’s denial . . . of a continuance [of a summary
judgment hearing] for abuse of discretion”].)
Each of Renovato’s contentions are meritless. Respondents’
separate statement of facts complies with the applicable statute.
(Code Civ. Proc., § 437c, subd. (b)(1) [the “supporting papers shall
include a separate statement setting forth plainly and concisely
all material facts that the moving party contends are undisputed”
and “[e]ach of the material facts stated shall be followed by a
reference to the supporting evidence”].) Renovato’s contention
that the separate statement “failed to set forth specific material
facts as to each issue to be decided” is belied by the record. While
the issue summaries in respondents’ separate statement
incorporate by reference the facts set forth in the preceding
enumerated list of material facts, that list “set[s] forth plainly
and concisely all material facts that [respondents] contend[ed]
[we]re undisputed[,] . . . . followed by a reference to the
supporting evidence[,]” and thus complies with the applicable
statutory requirements.1 (Code Civ. Proc., § 437c, subd. (b)(1).)
1 Renovato takes umbrage at the trial court’s criticism of her
own separate statement of facts, which copied respondents’
method of incorporating by reference her listed material facts
into her issue summaries. However, Renovato’s separate
statement of facts is formatted differently; where respondents’
separate statement includes supporting evidence citations
13
Even if the separate statements were defective, the
summary judgment statute does not, as Renovato suggests,
require the trial court to order the movant to submit compliant
papers. (See Code Civ. Proc., § 437c, subd. (b)(1) [“The failure to
comply with this requirement of a separate statement may in the
court’s discretion constitute a sufficient ground for denying the
motion”] (italics added).)
Similarly, we find no merit in Renovato’s contention that
the trial court “complete[ly] disregard[ed] . . . the Evidence Code”
by overruling most of her objections to respondents’ evidence.
The court sustained one of her objections and partially sustained
another, expressly stating the ground for each ruling. Far from
an abuse of discretion, this indicates that the court carefully
considered each of Renovato’s objections. Moreover, Renovato’s
broad arguments fail to identify error in specific evidentiary
rulings, and thus are insufficient to facilitate appellate review of
the more than 120 rulings to which she objects. (See City of
Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 463 [“If a party
contends that an evidentiary objection was improperly overruled
by the trial court, the party must identify the specific objection,
provide legal argument explaining why the trial court’s ruling
directly beneath each material fact listed, Renovato placed the
majority of her supporting evidence citations beneath long lists of
objections, often on separate pages from the facts she disputed.
The trial court justifiably noted that this confusing layout,
compounded by the fact that “none of [Renovato’s] contentions of
material fact are presented in [her] memorandum of points and
authorities[,]” “r[an] against the purpose of a separate statement
to provide the [c]ourt a concise list of material facts and evidence
upfront.”
14
was in error, and support that argument with citation to
pertinent legal authority”].)
Renovato does identify two of respondents’ objections
which, she argues, were improperly sustained. Namely, she
challenges the rulings that her declaration about her deposition
(1) contained improper legal arguments, speculation, and a lack
of personal knowledge to the extent that she characterized
deposition questions as “confusing contention type legal
questions” and said that the court reporter was having difficulty
taking the deposition; and (2) was misleading, contradictory,
lacked personal knowledge, and contained hearsay to the extent
that it repeated the allegations in Renovato’s purported
deposition corrections, made allegations about Quibilan’s
thoughts, and repeated things she had heard Quibilan and Gage
say. These rulings are eminently reasonable. (Serri, supra,
226 Cal.App.4th at p. 852 [the trial court abuses its discretion
only if its order “ ‘exceeds the bounds of reason[]’ ”].) Moreover,
Renovato makes no attempt to meet her burden to show that the
exclusion of this evidence resulted in prejudice that would entitle
her to a reversal of the summary judgment ruling. (Lewis v. City
of Benicia (2014) 224 Cal.App.4th 1519, 1538.)
Finally, the trial court did not abuse its discretion in
denying Renovato’s request for a continuance. The summary
judgment statute “mandates a continuance of a summary
judgment hearing upon a good faith showing by affidavit that
additional time is needed to obtain facts essential to justify
opposition to the motion.” (Cooksey, supra, 123 Cal.App.4th at
pp. 253–254; see also Code Civ. Proc., § 437c, subd. (h).) “[L]ack
of diligence may be a ground for denying a request for a
continuance of a summary judgment motion hearing . . . [as]
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[t]here must be a justifiable reason why the essential facts cannot
be presented. An inappropriate delay in seeking to obtain the
facts may not be a valid reason why the facts cannot then be
presented.” (Cooksey, supra, 123 Cal.App.4th at p. 257.)
Renovato first sought a continuance in her February 2024
opposition to respondents’ original summary judgment motion,
alleging that she needed more time to pursue discovery because
respondents stymied her initial attempts to schedule depositions
and collect documentary evidence. She received the benefit of a
five-month continuance. Yet, in that time, Renovato made no
further attempts to complete the depositions and acquire the
evidence she claimed she needed to defend against summary
judgment. Under these circumstances, the trial court reasonably
denied Renovato’s request for a further continuance due to lack of
diligence. (Cooksey, supra, 123 Cal.App.4th at p. 257.)
II. The Trial Court Properly Disregarded Renovato’s
Purported Deposition Corrections
By statute, a “deponent may change the form or the
substance of the answer to a question” within 30 days after
receiving notice that the deposition transcript is ready for review.
(Code Civ. Proc., § 2025.520, subd. (b).)
However, substantive and material changes to damaging
deposition testimony may be disregarded when evaluating a
summary judgment motion. Our Supreme Court has long
recognized that “admissions against interest have a very high
credibility value . . . . especially . . . when, as in this case, the
admission is obtained not in the normal course of human
activities and affairs but in the context of an established pretrial
procedure whose purpose is to elicit facts.” (D’Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 22 (D’Amico).) Therefore,
16
“ ‘[w]here . . . there is a clear and unequivocal admission by the
plaintiff, h[er]self, in h[er] deposition’ ” and the plaintiff
contradicts that admission in a subsequent declaration, “ ‘we are
forced to conclude there is no substantial evidence of the
existence of a triable issue of fact.’ ” (Id. at p. 21; see also Tiffany
Builders, LLC v. Delrahim (2023) 97 Cal.App.5th 536, 547 [“The
sham declaration doctrine comes into play when a plaintiff makes
a clear and unequivocal admission in a deposition but, in a later
declaration, contradicts that admission. In this situation, the
declaration’s previously contradicted assertion alone cannot
establish a triable issue of fact.”].)
Taken together, these laws provide—as summarized by the
trial court—that Renovato “was permitted to change her
deposition testimony pursuant to [Code of Civil Procedure
section] 2025.520, [but] [she] cannot by so doing create a triable
issue of fact in order to defeat a motion for summary judgment.”
(Underlining omitted.)
Renovato’s original deposition testimony was rife with
damaging admissions, including that she had never been
diagnosed with a disability, sought accommodations for a
disability or familial obligations, or made complaints about
Quibilan’s alleged harassment; she also admitted that
respondents had never taken adverse actions against her. Her
purported corrections directly contradicted those admissions.
And her opposition to respondents’ summary judgment motion
relied almost entirely on her corrected deposition testimony to
assert triable issues of material fact.
Under these circumstances, the trial court reasonably
disregarded the purported corrections. (See Jogani v. Jogani
(2006) 141 Cal.App.4th 158, 177 [the D’Amico rule “says that a
17
party cannot say one thing at a deposition only to reverse course
when his deposition is used against him in a motion for summary
judgment in the same litigation”]; Shapero v. Fliegel (1987)
191 Cal.App.3d 842, 849–850 (Shapero) [where the plaintiff “took
pages from her deposition, crossed out her original answers and
supplanted with them answers more in keeping with her later
recollection of events before submitting them to the trial court[,]”
the court “properly rejected these emendations” at the summary
judgment stage].)
Renovato raises several counterarguments, all of which are
unavailing. She contends that because the purported corrections
were timely filed per Code of Civil Procedure section 2025.520,
the sham declaration doctrine does not apply. Renovato thus
suggests that a deponent may make substantive, contradictory
corrections to damaging deposition testimony without
consequence, as long as the corrections are made within the 30-
day period prescribed by statute. Not only is this contrary to case
law (Shapero, supra, 191 Cal.App.3d at pp. 849–850), it is
nonsensical. Depositions are important discovery tools because
they enable litigants and attorneys to assess witness credibility
and disposition, and to receive the benefit of unrehearsed
answers to spontaneous questions. Renovato’s lengthy,
contradictory “corrections” effectively replaced her deposition
testimony with written discovery, which she had ample time to
craft and review in the month following her deposition, after
reviewing the motion for summary judgment. Allowing such
corrections without limitation would not only give deponents an
unfair advantage in summary judgment proceedings, but would
also defeat the purpose of depositions.
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Renovato attempts to distinguish D’Amico and its progeny
by drawing a distinction between corrected deposition testimony
and subsequent sham declarations. But “[t]here is no reason to
draw a distinction between an attempt to counter an admission
by affidavit and an attempt to counter an admission by changing
the content of an answer given by a party directly in the
deposition[.]” (Gray v. Reeves (1977) 76 Cal.App.3d 567, 574.)
Renovato also argues that the trial court was precluded
from applying the sham declaration doctrine to disregard her
deposition corrections, citing the April 2024 order denying
respondents’ motion to strike the corrections. Following this
logic, she urges that respondents’ summary judgment motion
amounted to an improper motion for reconsideration of the April
2024 order.
These arguments share the same flawed premise—namely,
that the trial court’s summary judgment ruling conflicts with its
prior April 2024 order. But there is no conflict. The April 2024
order explained that the sham declaration doctrine did not
support respondents’ motion to strike Renovato’s admittedly
“egregious” deposition corrections. The summary judgment
ruling properly invoked the doctrine to disregard the purported
corrections at the summary judgment stage. Read together, the
two rulings consistently describe the remedies afforded by the
sham declaration doctrine in the unique context of this case.
When a summary judgment opponent proffers sham deposition
corrections, the trial court does not strike the sham corrections
from the record. Instead, it ignores them at the summary
judgment stage.
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III. Respondents Are Entitled to Summary Judgment on
the Merits
Renovato concedes that consideration of her deposition
corrections is “[t]he dispositive issue” of this appeal. Given the
number and severity of damaging admissions made in Renovato’s
original deposition, we agree. Nevertheless, we have
independently reviewed the merits of her appeal. (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334 (Guz) [“On appeal after
a [defendant’s] motion for summary judgment has been granted,
we review the record de novo, considering all the evidence set
forth in the moving and opposition papers except that to which
objections have been made and sustained”].)
Having reviewed the evidence, we agree that there are no
triable issues as to the material facts required by Renovato’s
claims. (Code Civ. Proc., § 437c, subd. (c); see also Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 856 [a triable
issue of material fact exists if the evidence and inferences
therefrom would allow a reasonable juror to find the underlying
fact in favor of the party opposing summary judgment].)
Renovato forfeited any argument as to the majority of her
FEHA claims. Her appellate briefs make no effort to defend the
portions of her discrimination and retaliation claims based on
marital status, gender, reasonable accommodations, and the
CFRA.2 (Christoff v. Union Pacific Railroad Co. (2005)
134 Cal.App.4th 118, 125 [failure to discuss issue in opening brief
results in forfeiture on appeal].)
2 For the same reason, Renovato forfeited any challenge
regarding her whistleblower, fraudulent inducement, and CLRA
claims.
20
The remainder of Renovato’s discrimination and retaliation
claims—based on disability or perceived disability—fail because
she conceded that respondents took no adverse action against her
during her employment. (Glynn v. Superior Court (2019)
42 Cal.App.5th 47, 53, fn. 1 [disability discrimination requires
showing that the plaintiff “was subjected to an adverse
employment action because of [her] disability or perceived
disability”], 55 [retaliation requires showing that the plaintiff
“was subjected to an adverse employment action”].)
Renovato’s harassment claim falls short, as the evidence
shows nothing beyond a few isolated (albeit offensive) comments
made by Quibilan over a 12-year course of employment. (See
Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663,
693 [“ ‘[S]imple teasing, offhand comments, and isolated incidents
(unless extremely serious)’ are not sufficient to create an
actionable claim of harassment”].)
The failure of Renovato’s FEHA claims necessarily defeats
her claim for wrongful termination in violation of public policy,
because the latter is premised solely on respondents’ FEHA
violations. Renovato argues that her wrongful termination claim
goes beyond FEHA, as she also alleged violations of “ ‘the Labor
Code, Cal[/]OSHA regulations, the California Constitution, and
other criminal and common laws.’ ” These bodies of law are too
broad to support a claim for wrongful termination in violation of
public policy. (See Turner v. Anheuser-Busch, Inc. (1994)
7 Cal.4th 1238, 1257 [granting summary judgment because of the
plaintiff’s “vague charge[s] of ‘Alcohol, Tobacco and Firearms
law[]’ violations, largely unaccompanied by citations to specific
statutory or constitutional provisions”].)
21
Renovato’s IIED claim fails because respondents’ conduct,
as a matter of law, does not rise to the level of “extreme and
outrageous conduct” which goes beyond all possible bounds of
decency so as to be regarded as atrocious and utterly intolerable
in a civilized community. (Davidson v. City of Westminster (1982)
32 Cal.3d 197, 209–210; see also Gomon v. TRW, Inc. (1994)
28 Cal.App.4th 1161, 1172 [“Insults, indignities, annoyances,
petty oppressions or other trivialities will not suffice”].)
Renovato’s breach of contract claims fail because
undisputed evidence establishes that she was an at-will
employee. (See Jersey v. John Muir Medical Center (2002)
97 Cal.App.4th 814, 829 [an employee has no breach of contract
claim where the employment contract specified at-will
employment]; Halvorsen v. Aramark Uniform Services, Inc.
(1998) 65 Cal.App.4th 1383, 1390 [same]; see also Guz, supra,
24 Cal.4th at p. 337 [“[W]here the undisputed facts negate the
existence or the breach of the contract claimed, summary
judgment is proper”].)
Both of Renovato’s Labor Code claims fail. She conceded
that she never suffered an adverse employment action, including
“action[s] taken against [her] because of any leave of absence[.]”
(Lab. Code, § 230.8 [prohibiting employers from “discharg[ing] or
in any way discriminat[ing] against an employee who is a
parent . . . for taking off up to 40 hours each year, for the purpose
of [enumerated] child-related activities”].) And she admitted that
she received her personnel records within 14 days of submitting a
written request to Carter’s. (Lab. Code, § 1198.5, subd. (b)(1).)
Finally, Renovato’s unfair competition and punitive
damages claims fail because they are derivative of her other
defeated claims. (See Aleksick v. 7-Eleven, Inc. (2012)
22
205 Cal.App.4th 1176, 1185 [“When a statutory claim fails, a
derivative [unfair competition] claim also fails”]; Coleman v. Gulf
Ins. Group (1986) 41 Cal.3d 782, 789, fn. 2 [“[T]here is no
separate or independent cause of action for punitive damages”].)
In keeping with the rest of her appeal, Renovato’s final
counterargument is meritless. She contends that reversal is
compelled as to Carter’s, Inc., because respondents failed to prove
that Carter’s Retail, Inc. was Renovato’s sole employer. Not so.
Renovato’s claims are identical as to both corporate respondents.
Assuming arguendo that Carter’s Inc. and Carter’s Retail, Inc.
were Renovato’s joint employers, her claims as to Carter’s Inc.
fail for the same reasons that they fail as to Carter’s Retail, Inc.
DISPOSITION
The judgment is affirmed. Respondents are entitled to
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOORVITCH, J.
We concur:
LUI, P. J.
RICHARDSON, J.
23
