Baker v. Charles R. Drew University of Med. and Science CA2/2

Filed 5/25/16 Baker v. Charles R. Drew University of Med. and Science CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
RICHARD BAKER, B264330
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC544253)
v.
CHARLES R. DREW UNIVERSITY OF
MEDICINE AND SCIENCE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. William
F. Fahey, Judge. Affirmed.
Law Offices of Mokri & Associates, Brad A. Mokri and Jennifer N. Harris; Law
Offices of Eric V. Luedtke and Eric V. Luedtke for Plaintiff and Appellant.
Peckar & Abramson, Eric M. Gruzen and Kerri Sakaue for Defendant and
Respondent.
Richard Baker (appellant) appeals from a final judgment entered after the trial
court granted summary judgment against appellant and in favor of Charles R. Drew
University of Medicine and Science (CDU) on appellant’s claims of age discrimination;
failure to prevent discrimination; whistle-blowing; retaliation under the Fair Employment
and Practices Act (FEHA) (Gov. Code, § 12900 et seq.); and termination in violation of
public policy.1
Appellant argues that the trial court erroneously sustained CDU’s objections to
appellant’s evidence in support of his opposition to the motion for summary judgment,
and that triable issues of fact exist as to his causes of action for age discrimination, failure
to prevent discrimination, whistle-blowing, and retaliation.
We find no reversible error and affirm the judgment.
FACTUAL BACKGROUND
CDU is a private, nonprofit, nonsectarian medical and health sciences institution.
David Carlisle, M.D., Ph.D. (Dr. Carlisle), is the President and Chief Executive Officer
(CEO) of CDU and has served in this capacity since July 2011. Dr. Carlisle is African-
American and was born on September 15, 1954.
Appellant is African-American and was born on October 22, 1952. He served as
dean of CDU from 2007 until June 4, 2012. In 2010, appellant was appointed provost,
and served in that capacity in addition to his role as dean. Appellant served in the
positions of provost and dean subject to termination at any time without cause. He served
at the pleasure of the president of CDU.
Daphne Calmes, M.D. is the current interim dean of CDU. She was appointed to
the position by Dr. Carlisle to replace appellant. Dr. Calmes is African-American and her
date of birth is August 3, 1956.
1 The trial court had previously sustained without leave to amend the demurrer of
CDU and individual defendants James Main and David Carlisle to appellant’s cause of
action for harassment under FEHA, and the demurrer of Main and Carlisle to appellant’s
cause of action for wrongful termination.
2
CDU receives monetary funds from the Regents of the University of California
(Regents or UC) through two sources. First, CDU receives funds from the Regents based
on the Undergraduate Medical Agreement (UME agreement) dated July 1, 2008. Second,
CDU receives funds from the Regents through Senate Bill No. 1026 (SB 1026) (Stats.
1973 (1973-1974 Reg. Sess.) ch. 1140, §§ 1-5, pp. 2341-2342).
The UME agreement provides that the funds received by CDU under the
agreement should be used for “‘financial support adequate for the success of the Program
and required capital improvements.’” The “Program” is the “‘cooperative medical and
health sciences education program(s) in which the University undergraduate students will
be admitted into and receive instruction as part of a cooperative CDU/UCLA program.’”
SB 1026 provides that funds appropriated under SB 1026 will be provided for the
support of a program of clinical health sciences, education, research and public service to
be conducted by the Charles R. Drew Postgraduate Medical School in conjunction with
the University of California at Los Angeles (UCLA). Specifically, the funds must be
used to implement the following programs:
“(a) A program of continuing education of physicians and other
health professionals and consumers of health services.
“(b) A program of community medicine designed to improve the
health status of the citizenry, the health care delivery system and health
sciences education program.
“(c) A program of internship and residencies including, specifically,
a family practice residency program at the Martin Luther King Hospital and
such other facilities and clinics as may be appropriate.
“(d) Such other programs of clinical health sciences education,
research, and public service as the regents and Charles R. Drew
Postgraduate Medical School deem in the public interest, provided that the
programs herein specified are first funded.”
(Stats. 1973, supra, ch. 1140, § 2, p. 2342.)
CDU provides an audit to the Regents on an annual basis stating how the funds
obtained as a result of the UME agreement and SB 1026 are used by CDU.
3
During appellant’s time as dean of CDU, he believed CDU may have been
misallocating state funds in violation of SB 1026.
In 2007, the County of Los Angeles closed Martin Luther King Hospital. When
the hospital closed, CDU closed the community medicine program and the residency
program.2 Appellant notified the State of California that CDU did not have a residency
program. Starting in 2007, appellant had conversations with the office of the president of
the UC system. Appellant was informed that CDU was out of compliance with respect to
the UME agreement and SB 1026.
Appellant testified that he repeatedly told Dr. Carlisle about the misallocation of
funds. Appellant claims that he complained about such misuse of funds throughout his
tenure as dean of CDU. He first raised it with Dr. Carlisle in July of 2011 shortly after
Dr. Carlisle became president of CDU. Appellant brought up the issue several times with
Dr. Carlisle with little response. In December 2011, and again in May 2012, appellant
sent emails addressing the noncompliance. The May 31, 2012 email to Dr. Carlisle
stated, in part:
“‘The budget allocation to the CDU College of Medicine for the
academic year 2011-2012 and the projected budget allocation for the
academic year 2012-2013 are significantly out of compliance with current
agreements between University of California (UC) and CDU relative to the
allocation and use of funds for the CDU/UCLA medical education
program.’”
Appellant did not complain to anyone outside of CDU that CDU was not in
compliance with its agreements with the Regents. Appellant stated that this was because
he was unsure whether or not CDU and the Regents had entered into another agreement
regarding the allocation of funds. When Dr. Carlisle took over the position of president
of CDU in 2011, appellant requested that they develop a plan to present to the Board of
Trustees to determine how to get back into compliance. Dr. Carlisle made it clear that
2 The hospital closure prevented CDU from having a residency program as set forth
under SB 1026. However, appellant testified that CDU could still have a health care
delivery system.
4
during his tenure appellant was not to communicate directly with the Board of Trustees or
with UC.
Appellant noticed that the budget proposal for 2011-2012 designated restricted
funds as unrestricted. The funds should have been designated as restricted to the
obligations set forth by the Regents. Appellant informed CDU Chief Financial Officer
(CFO) Ron Lau and others that the funds should have been designated as restricted.
Nevertheless, CDU continued to designate the funds as unrestricted. Appellant was
informed by the chief operating officer, James Main, that all funds were used at the
discretion of the president. During the budget discussions, appellant asked Mr. Main to
allocate more money to the College of Medicine. Appellant submitted a budget of over
$5 million. Mr. Main did not allocate the funds appellant requested, and appellant was
terminated.
Dr. Carlisle testified that he informed appellant during the 2011-2012 academic
year that CDU provides an accounting to UCLA and the Regents regarding the use of
funds. Dr. Carlisle informed appellant that the Regents were aware of how CDU was
allocating the funds received as a result of the UME agreement and SB 1026, and that the
Regents had agreed that CDU’s use of the funds was acceptable.
Appellant claimed that he refused to sign the last audit produced during his tenure
due to discrepancies.
Upon the commencement of Dr. Carlisle’s term as president and CEO of CDU in
July 2011, he decided to allow appellant to continue in his role as CDU’s dean and
provost. As the 2011-2012 academic year progressed, Dr. Carlisle began to lack
confidence in appellant’s ability to meet his expectations for those positions. In late
April 2012, Dr. Carlisle made the decision that appellant should no longer serve as dean
and provost. Dr. Carlisle decided to replace appellant with Dr. Calmes in the position of
dean while Dr. Carlisle took over the position of provost for the following year.
In his declaration, Dr. Carlisle stated his decision to remove appellant as CDU’s
dean and provost was not related in any way to appellant’s age or race. In addition,
Dr. Carlisle’s decision to remove appellant as CDU’s dean and provost was not in any
5
way related to any concerns or complaints appellant may have had or made regarding
CDU’s use of funds obtained by CDU via the UME agreement or SB 1026.
On June 4, 2012, Dr. Carlisle informed appellant that he would no longer serve as
dean and provost. While appellant was removed from these positions, he remained a
member of the faculty of CDU in an uncompensated position, though he continued to
receive compensation through June 30, 2013, as an accommodation by Dr. Carlisle to
ease the transition.
At no time during his employment with CDU did appellant complain of
discrimination based upon his age or race. Appellant is unaware of anyone making any
derogatory comments about him based upon his age or race. CDU maintains a policy of
no retaliation and is also partnered with MySafeCampus to operate an Alert Line.
Reports submitted to MySafeCampus are confidential and anonymous and are submitted
to CDU’s internal audit and control services department. Appellant never utilized this
service despite being informed of it by CDU’s chief human resources officer on May 25,
2012. Appellant had no belief that Dr. Carlisle harbored any animosity towards him
because of his age or race. In his complaint filed with the Department of Fair
Employment and Housing, appellant did not allege that he was subjected to
discrimination, retaliation or harassment because of his race. The complaint does allege
discrimination, harassment and retaliation on the grounds of age and engagement in
protected activity.
PROCEDURAL HISTORY
On April 30, 2014, appellant filed this lawsuit against CDU, Mr. Main and
Dr. Carlisle, alleging six causes of action: (1) age discrimination; (2) violation of
Government Code section 12940 (failure to prevent discrimination); (3) whistle-blowing;
(4) retaliation under FEHA; (5) harassment under FEHA; and (6) termination in violation
of public policy.
On July 7, 2014, CDU, Mr. Main and Dr. Carlisle filed a demurrer to the
complaint. The trial court sustained the demurrer without leave to amend as to the fifth
6
cause of action for harassment as to all defendants, and to the sixth cause of action for
wrongful termination in violation of public policy as to Mr. Main and Dr. Carlisle only.
On January 5, 2015, CDU filed its motion for summary judgment or, in the
alternative, summary adjudication (summary judgment motion). On March 6, 2015,
appellant filed his opposition to the summary judgment motion. On March 13, 2015,
CDU filed its reply brief. Appellant filed a supplementary declaration on March 18,
2015. CDU filed 68 evidentiary objections to the declarations filed by appellant in
opposition to the summary judgment motion.
At the March 20, 2015 hearing on the summary judgment motion, counsel
appeared and argued and the court took the matter under submission. On March 25,
2015, the court filed its ruling on CDU’s evidentiary objections, sustaining all but eight
of the 68 objections. On March 26, 2015, the court issued a minute order granting
CDU’s motion for summary judgment.
The court’s order stated that on October 7, 2014, the court sustained, without leave
to amend, the demurrers as to the fifth and sixth causes of action, leaving four causes of
action as to CDU only.3 The court noted that CDU filed three declarations and multiple
exhibits in support of its motion, and that appellant failed to file any objections to CDU’s
evidence, thus it was all fully admissible. The court also noted that CDU filed objections
to appellant’s declaration, most of which were well taken. Further, appellant’s attorney
was not qualified to authenticate certain items and CDU’s objections to this evidence
were sustained. The court pointed out that appellant provided no evidence that he was
replaced by a significantly younger person, or that he had engaged in protected activity
and was thereafter subject to an adverse employment action, or that there was a causal
link between the two. In addition, appellant provided no evidence that he had a
reasonable belief that CDU violated a state or federal statute, or was in noncompliance
with a state or federal rule or regulation; that CDU made or enforced any rule preventing
3 In fact, the demurrer to the sixth cause of action for wrongful termination in
violation of public policy was sustained as to the individual defendants Mr. Main and
Dr. Carlisle only, and remained viable as to CDU.
7
appellant from disclosing information to a government or law enforcement agency; that
appellant disclosed any such information to such an agency; or that appellant refused to
participate in an activity that would result in a violation of a state or federal statute or was
in violation of a federal rule or regulation. The court concluded that there were no
genuine issues of fact for trial.
On May 21, 2015, appellant filed his notice of appeal from the trial court’s
judgment.
DISCUSSION
I. Standards of review
We review a grant of summary judgment de novo, deciding independently whether
the facts not subject to triable dispute warrant judgment for the moving party as a matter
of law. (Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 253 (Nazir).) The
appellate court’s task is to make “‘an independent assessment of the correctness of the
trial court’s ruling, applying the same legal standard as the trial court . . . .’ [Citations.]”
(Brundage v. Hahn (1997) 57 Cal. App. 4th 228, 234-235.) We review evidentiary rulings
for abuse of discretion. (Nazir, supra, at p. 255.) We uphold the judgment if it is correct
on any ground, regardless of the reasons the trial court gave. (Bunnell v. Department of
Corrections (1998) 64 Cal. App. 4th 1360, 1367 (Bunnell).)
II. The evidentiary objections
We first address the trial court’s evidentiary rulings. CDU filed 68 objections to
appellant’s evidence submitted in opposition to CDU’s summary judgment motion.
Appellant disputes the trial court’s decision to sustain CDU’s objections to evidence
attached to the declaration of appellant’s attorney, Jennifer N. Harris, including exhibit R,
the SB 1026 legislation; exhibit S, the UME agreement; and exhibits P, Q, and T,
containing discovery responses. Appellant further disputes the trial court’s decision to
sustain objections to almost all of appellant’s declaration. Appellant maintains that the
excluded evidence raises triable issues of fact.
We address each of the evidentiary rulings separately, keeping in mind that under
the abuse of discretion standard of review, appellate courts will not disturb discretionary
8
trial court rulings absent a clear case of abuse and a miscarriage of justice. (Association
for Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC (2015) 239
Cal. App. 4th 808, 824.)
A. Harris declaration: exhibit R (SB 1026 legislation) and exhibit S (UME
agreement)
Attorney Harris stated in her declaration, “A true and correct copy of the SB 1026
legislation is attached hereto as Exhibit R.” CDU objected on the grounds of hearsay and
multiple hearsay (Evid. Code, §§ 1200, 1201); inadmissible opinion (§ 803); lacks
foundation (§ 403); and unauthenticated document (§§ 1271, subd. (c); 1401). The trial
court sustained CDU’s objection to this piece of evidence on the ground that Attorney
Harris was not qualified to properly authenticate this item.
Attorney Harris further declared: “A true and correct copy of the UME
Agreement is attached hereto as Exhibit S.” CDU objected to exhibit S on the same
grounds as it objected to exhibit R, and the objection was sustained.
Appellant points out that these two exhibits were also offered by CDU, and
admitted.4 In ruling on a summary judgment motion, a trial court is required to
“‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom
[citation].” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) We must
assume that the trial court followed the law and considered these two exhibits. In fact,
the court stated in its ruling that all of CDU’s evidence “has been considered by the
Court.”
Because SB 1026 and the UME agreement were admitted into evidence and
considered by the court in rendering its decision on the summary judgment motion, we
find appellant’s arguments to be moot. A question is moot if we cannot grant the
appellant any effectual relief. (Wilson & Wilson v. City Council of Redwood City (2011)
191 Cal. App. 4th 1559, 1574.) Where, as here, the court admitted and considered the
4 Appellant filed no evidentiary objections to CDU’s evidence, and the trial court
thus found CDU’s evidence “fully admissible.” All of CDU’s evidence was considered
by the court.
9
exhibits in question, there will be no change in the judgment if the contested evidentiary
rulings are reversed. Therefore we do not address them further.
B. Appellant’s declaration
CDU filed 16 objections to the declaration of appellant filed in support of
appellant’s opposition to the motion for summary judgment. Three of them were
overruled, the rest were sustained. We note that although the objections and rulings were
numbered, appellant does not specify which rulings he is addressing at any time
throughout his discussion. We therefore take our best guess as to the specific rulings
being referenced in appellant’s discussion.
Appellant argues that the trial court excluded evidence of appellant’s
accomplishments. Appellant argues that these accomplishments go straight to the
credibility of Dr. Carlisle’s testimony that appellant was terminated for lack of
confidence. We assume that appellant is referring to CDU’s objection No. 2, in which
CDU objected to evidence of “Examples of major CAO contributions to the COM
educational enterprise” listing seven such alleged contributions. CDU objected to the
evidence on the grounds of relevance, hearsay, vague and ambiguous as to “CAO,” lacks
foundation, and failure to state any facts upon which the evidence is based. Appellant
fails to address the merits of any of these objections, with the exception of relevance. As
the party challenging the court’s decision, it is appellant’s burden to establish an abuse of
discretion as to the court’s evidentiary rulings. (DiCola v. White Brothers Performance
Products, Inc. (2008) 158 Cal. App. 4th 666, 679 (DiCola).) Because appellant has failed
to address CDU’s objections that the evidence is vague as to “CAO,” lacks foundation,
and fails to identify any facts upon which it is based, we decline to find that the trial court
abused its discretion in excluding the evidence.
Appellant next notes that the court sustained an objection to appellant’s
declaration showing that Dr. Carlisle never complained about a lack of confidence until
the day appellant was terminated on or about June 4, 2012. We assume appellant is
addressing CDU’s objection No. 6, pursuant to which CDU objected to the following
testimony in appellant’s declaration:
10
“By his own testimony, Dr. Carlisle’s first communication of any
kind and to anyone about his ‘lack of confidence’ in me as the Dean and
Provost was during the meeting on 6/4/2012 when he removed me from
those positions. The date of my termination (6/4/2012) was the first
business day immediately subsequent to Dr. Carlisle’s receipt of documents
on 5/30/12, 5/31/12 and 6/1/12 that document and infer Dr. Carlisle’s
inappropriate allocation of funds from UC and the State. The temporal
relationship of the three documents received by the President and the COO
strongly speaks to the motivation for terminating me in an immediate and
abrupt manner on June 4, 2012.”
CDU objected to this testimony on the grounds of hearsay regarding all
discussions alleged or Dr. Carlisle’s “own testimony” (Evid. Code, § 1200), inadmissible
opinion (§ 803), lacks foundation as none of Dr. Carlisle’s testimony was attached
(§ 403), failure to identify any factual evidence on which the opinion is based (Taliaferro
v. Taliaferro (1962) 203 Cal. App. 2d 649, 651 (Taliaferro), speculation (§ 800), and
relevance (§§ 210, 350-351).
Again, appellant addresses none of these specific objections other than relevance,
and merely repeats the facts that are set forth in the declaration. Appellant cites no case
law addressing any of CDU’s other objections or suggesting that the trial court erred in
sustaining the objections under any of those provisions. This is insufficient to carry the
burden of showing an abuse of discretion.
Appellant argues that the trial court improperly excluded evidence that Dr. Carlisle
never explained to appellant why he was terminated or gave any business reason for the
termination. CDU’s objection Nos. 7 and 8 address references to emails and a letter in
which appellant allegedly expressed concerns about inappropriate allocation of funds, as
well as appellant’s testimony that “Dr. Carlisle had full opportunity over an extended
time period, to do a full performance evaluation of me . . . and/or to formally document
(in written communication) my alleged deficiencies relative to meeting expectations,
neither of which were done.” CDU objected to this evidence on the grounds of hearsay
(Evid. Code, § 1200), unauthenticated documents (§§ 1271, subd. (c), 1401),
inadmissible opinion (§ 803), lacks foundation (§ 403), fails to identify any factual
11
information to show what the opinion is based on (Taliaferro, supra, 203 Cal.App.2d at
p. 651), relevance (§§ 210, 350-351), and as to objection No. 8, improper expert
testimony (§ 720).
Again, appellant’s argument consists of mainly a repetition of the evidence and its
alleged significance. None of the specific objections are addressed with legal authority.
This fails to meet appellant’s burden of showing an abuse of discretion.
Appellant complains that the trial court excluded appellant’s testimony showing he
had reasonable cause to believe there was violation of a state statute. (See Labor Code,
§ 1102.5, subdivision (b) [an employer shall not retaliate against an employee for
disclosing information to anyone who has the authority to investigate or correct the
violation if the employee has reason to believe that the information discloses a violation
of a state or federal statute].) We assume appellant is addressing CDU’s objection Nos.
13 and 14, in which CDU objected to appellant’s testimony that he had complained about
the misallocation of UC and state funds and had provided Dr. Carlisle via email detailed
information on UC contractual obligations, UC GME funds, UCLA clerkship funds and
SB 1026, in support of an ensuing meeting between appellant and Dr. Carlisle on this
topic. Again, CDU provided at least six objections to this testimony, based on various
Evidence Code provisions. Appellant provides no legal argument establishing an abuse
of discretion.
Appellant next addresses the trial court’s exclusion of appellant’s testimony that at
the time he was terminated he was the oldest African-American on the senior
management team, and that all members who were as old or older than he who were
retained or subsequently hired were Caucasian. Appellant argues that he had knowledge
of his age and race at the time he was terminated, thus this evidence was not speculative.
In addition, appellant argues it was relevant to his discrimination claims. However, it is
not. The trial court noted in its decision that “at the March 20, 2015 hearing,
[appellant’s] counsel conceded that [appellant] is not making any claims based on his
12
race.” Appellant has not challenged or appealed this finding. Therefore, references to
appellant’s race are irrelevant, and the trial court did not abuse its discretion in so ruling.5
Finally, appellant raises the trial court’s exclusion of appellant’s testimony that
Dr. Carlisle explicitly forbade him from direct communication with the UC Office of the
President or with any members of the CDU Board of Trustees. Appellant argues that this
evidence shows a violation of Labor Code section 1102.5, subdivision (a), which makes it
unlawful for Dr. Carlisle to prevent appellant from disclosing this information to a
government agency.
Appellant’s argument appears to be a reference to CDU’s objection No. 15, in
which CDU objected to the following paragraph:
“Dr. Carlisle explicitly forbade me . . . from direct communication
with the UC Office of the President (UCOP) or with any members of the
CDU Board of Trustees. Despite the fact that all concerns relative to my
complaints could have been definitively addressed and all contractual
obligations to UC and the State clearly delineated in a meeting involving
UCOP, the CDU President, and the CDU Dean, this meeting was never
allowed to happen. Finally, on numerous occasions, I have asked Dr.
Carlisle to provide some written indication from the UCOP that the
prevailing agreements known to [appellant] are no longer in force and this
change has been approved by UC. No such document has ever been
produced.”
CDU objected to this paragraph on the grounds of hearsay (Evid. Code, § 1200) as
to what Dr. Carlisle said and what appellant allegedly asked Dr. Carlisle; lack of personal
knowledge (§ 702, subd. (a)), inadmissible opinion (§ 803), lacks foundation (§ 403),
failure to identify any factual evidence upon which the opinion is based (Taliaferro,
supra, 203 Cal.App.2d at p. 651), speculation (§ 800), and relevance (§§ 210, 350-351),
among other things.
Apart from one sentence addressing the relevance of this paragraph, appellant
again fails to address the specific statutory and legal objections to this evidence.6 As
5 Again, there were other objections to this evidence noted, but appellant primarily
argues that it was relevant. Even if it were relevant, appellant’s failure to address the
alternative bases for excluding the evidence leaves us with no choice but to affirm.
13
with appellant’s entire discussion of the evidentiary rulings, appellant fails to discuss the
statutes that form the basis of CDU’s objections or cite any relevant case law. Under the
circumstances, appellant has not met his burden of establishing an abuse of discretion,
and the trial court’s rulings will not be disturbed.7 (DiCola, supra, 158 Cal.App.4th at p.
679.)
C. Harris declaration: exhibits P, Q, and T
Attorney Harris attached as exhibit P to her declaration “[a] true and correct copy
of responses to Form Interrogatories, Employment Law Set one.” CDU objected on the
grounds of hearsay and multiple hearsay (Evid. Code, §§ 1200, 1201), inadmissible
opinion (§ 803), lacks foundation (§ 403), and unauthenticated document (§§ 1271, subd.
(c); 1401). Attached as exhibit T to the Harris declaration was a “true and correct copy of
[appellant’s] Responses to Special Interrogatories, Set one.” CDU lodged identical
objections to this evidence. Finally, attached as exhibit Q to the Harris declaration was
“[a] true and correct copy of excerpts of [appellant’s] Deposition Transcript,” to which
CDU also lodged identical objections. The trial court sustained all three objections on
the ground that Harris was not qualified to authenticate the exhibits.8
6 In his reply brief, appellant argues that the statements fall within the exceptions to
hearsay set forth under Evidence Code sections 1222 and 1224. Appellant has failed to
provide a citation to the record indicating that he raised these arguments before the trial
court, therefore they are forfeited. (People v. Mayham (2013) 212 Cal. App. 4th 847, 856.)
7 We note that evidence of Dr. Carlisle’s general instructions that employees not
communicate directly with the Board of Trustees or UC is contained in appellant’s
deposition transcript. As set forth in Section II.C. below, appellant’s deposition should
have been considered by the trial court. Therefore, our de novo review of the summary
judgment motion includes consideration of appellant’s testimony that Dr. Carlisle
instituted a general policy that his subordinates not communicate directly with those
entities.
8 Appellant argues that exhibit Q, like exhibits R and S, was relied upon by CDU in
support of its motion. Thus, the trial court admitted and, we must assume, considered the
evidence in making its decision.
14
Appellant cites The Luckman Partnership, Inc. v. Superior Court (2010) 184
Cal. App. 4th 30 (Luckman) as authority for his position that Attorney Harris was qualified
to authenticate the discovery responses attached as exhibits P and T. In Luckman, a
construction worker who fell through a suspended ceiling sued an architect for
negligence. In denying the architect’s motion for summary judgment, the trial court
sustained the plaintiffs’ objections to evidence that there was an intervening cause of
plaintiff’s harm. (Id. at p. 34.) Specifically, the trial court sustained the plaintiffs’
objections to the declaration of the architect’s counsel authenticating the City of
Los Angeles’s verified interrogatory responses in the action.
The Court of Appeal reversed this evidentiary ruling, holding that “the declaration
of [the architect’s] counsel sufficiently authenticated the documents.” (Luckman, supra,
184 Cal.App.4th at p. 34.) The court explained, “Here, [the architect’s] counsel in this
case declared that he had personal knowledge that the documents attached to his
declaration were the [City of Los Angeles’s] verified interrogatory responses in this
action, along with the exhibits which the City attached to its interrogatory responses.
Counsel represented a party in this action, and his declaration was sufficient to show that
interrogatory responses in this action were what they purported to be.” (Id. at pp. 34-35.)
CDU attempts to distinguish Luckman by arguing that Attorney Harris did not
declare personal knowledge of the responses. However, a review of Attorney Harris’s
declaration shows that she did in fact state that the “matters stated in this declaration are
within my personal knowledge.” Thus, CDU’s attempted distinction between Luckman
and the present matter is unavailing.
Luckman suggests, and we agree, that an attorney who is representing a party in an
action may properly authenticate discovery responses obtained in that action. Thus, we
conclude that the trial court abused its discretion in ruling that Attorney Harris was not
qualified to properly authenticate exhibits P, Q, and T, which contained CDU’s responses
to form interrogatories in this matter; appellant’s deposition transcript; and appellant’s
responses to special interrogatories in this matter. Those exhibits should not have been
excluded from evidence in ruling on the summary judgment motion.
15
However, as explained in further detail below, the error is not reversible. Under
the California Constitution, “reversal is not warranted unless an examination of ‘the
entire cause, including the evidence,’ discloses that the error produced a ‘miscarriage of
justice.’ (Cal. Const., art. VI, § 13.) This test is not met unless it appears ‘reasonably
probable’ the defendant would have achieved a more favorable result had the error not
occurred. [Citation.]” (People v. Breverman (1998) 19 Cal. 4th 142, 149.) In this case,
even considering the excluded evidence, appellant has failed to provide evidence
sufficient to create a triable issue of fact as to any of the causes of action at issue.
III. Summary judgment was properly granted
Appellant argues that triable issues of fact exist as to appellant’s first cause of
action for age discrimination; second cause of action for failure to prevent discrimination;
third cause of action for whistle-blowing; fourth cause of action for retaliation under
FEHA; and sixth cause of action for termination in violation of public policy. We review
each of these causes of action de novo, deciding independently whether the facts not
subject to triable dispute, warrant judgment for the moving party as a matter of law.
(Nazir, supra, 178 Cal.App.4th at p. 255.) Because, as discussed above, the trial court
erroneously excluded certain discovery which was properly authenticated by appellant’s
attorney, our review incorporates evidence not considered by the trial court.
A. First cause of action for age discrimination
The elements of a cause of action for age discrimination are: (1) at the time of the
adverse action the employee was 40 years of age or older, (2) an adverse employment
action was taken against the employee, (3) at the time of the adverse action the employee
was satisfactorily performing his or her job and (4) the employee was replaced by a
significantly younger person. (Hersant v. Department of Social Services (1997) 57
Cal. App. 4th 997, 1003 (Hersant).)9
9 This fourth element is not always an element of the plaintiff’s prima facie case.
(Hersant, supra, 57 Cal.App.4th at p. 1003, fn. 3.) Depending on the circumstances of
the case, the plaintiff needs to show that “some other circumstance suggests
discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317, 355.) In
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“When the employee has made this showing, the burden shifts to the employer to
go forward with evidence that the adverse action was based on considerations other than
age discrimination. When the employer offers evidence justifying the adverse action on a
basis other than age, the burden shifts back to the employee to meet his ultimate
obligation of proving that the reason for the adverse action was age discrimination.”
(Hersant, supra, 57 Cal.App.4th at p. 1003.)
In its opinion, the trial court stated that appellant had not provided evidence of his
age, nor had he provided evidence that he was replaced by a significantly younger person.
Appellant argues that his age was undisputed, pointing to the separate statement of
undisputed facts filed in opposition to CDU’s motion for summary judgment, in which
appellant states that he was born on October 22, 1952. The date was provided in a
response to a form interrogatory attached to the declaration of CDU’s attorney, Mr.
Sarris. No objection to this evidence was sustained, therefore it was fully admissible.
However, we agree with the trial court that there was no evidence that appellant
was replaced by a significantly younger person (nor was there any evidence of any other
circumstances suggesting a discriminatory motive). The parties agree that Dr. Calmes
replaced appellant as interim dean, and that her date of birth is August 3, 1956. Thus,
there was no evidence that appellant was replaced as dean by someone significantly
younger.
As to the provost position, CDU presented evidence that this position was filled
for the 2012-2013 year by Dr. Carlisle, who was born on September 15, 1954. Appellant
points out that in response to form interrogatories, CDU responded that Dr. Mary Boyce
is the “current” provost at CDU. These interrogatory responses were signed on January
30, 2015. Because the evidence shows that Dr. Carlisle was provost during the 2012-
2013 year, and that Dr. Boyce was the provost as of January 30, 2015, there is no conflict
this case, both parties raise the issue of the age of appellant’s replacements, therefore we
consider this an element of appellant’s prima facie case. Neither party has raised any
other facts which might suggest a discriminatory motive.
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in the evidence, as appellant suggests.10 Neither party has pointed out any evidence of
Dr. Boyce’s age.
Appellant has failed to set forth a prima facie case of age discrimination. While
appellant is over the age of 40, and suffered an adverse employment action, there is
simply no evidence that CDU had a discriminatory motive for the adverse action. Under
the circumstances, summary judgment was appropriate.
B. Second cause of action for failure to prevent discrimination
Appellant’s second cause of action for failure to prevent discrimination must fall
along with the first cause of action. To establish a claim for failure to prevent
discrimination, a plaintiff must first show that he was subjected to actionable
discrimination. (Dickson v. Burke Williams, Inc. (2015) 234 Cal. App. 4th 1307, 1314 [“a
finding of actual harassment is required for [plaintiff] to prevail on her claim based on the
failure to take reasonable steps to prevent sexual harassment”]; see also Scotch v. Art
Institute of California (2009) 173 Cal. App. 4th 986, 1021 [“[b]ecause we affirm summary
judgment on all of Scotch’s FEHA causes of action, we also affirm summary judgment
on the failure to provide an environment free from discrimination cause of action”].)
Because we have affirmed summary judgment on appellant’s first cause of action, his
second cause of action for failure to prevent discrimination also fails.
C. Third cause of action for whistle-blowing
1. Labor Code section 1102.5
In general, to establish a prima facie case of whistleblower liability, a plaintiff
must show “‘that he or she was subjected to adverse employment action after engaging in
protected activity and that there was a causal connection between the two. [Citation.]’
[Citation.]” (Edgerly v. City of Oakland (2012) 211 Cal. App. 4th 1191, 1199 (Edgerly).)
Labor Code section 1102.5, subdivision (a), provides that an employer shall not
“make, adopt, or enforce any rule, regulation, or policy preventing an employee from
10 Appellant’s testimony that neither the dean position nor the provost position has
been filled with a permanent replacement also does not create an inference of age
discrimination or a triable issue of material fact.
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disclosing information to a government or law enforcement agency, to a person with
authority over the employee, or to another employee who has authority to investigate,
discover, or correct the violation or noncompliance . . . if the employee has reasonable
cause to believe that the information discloses a violation of a state or federal statute, or a
violation of or noncompliance with a local, state, or federal rule or regulation, regardless
of whether disclosing the information is part of the employee’s job duties.”
Thus, to show a prima facie case of retaliation under Labor Code section 1102.5,
subdivision (a), appellant must prove that he was subjected to a rule or policy preventing
him from disclosing information, and that he had reasonable cause to believe that the
information disclosed a violation of or noncompliance with a statute, rule or regulation.
Labor Code section 1102.5, subdivision (b) prevents retaliation for whistle-
blowing. To show a prima facie case of retaliation under Labor Code section 1102.5,
subdivision (b), a plaintiff must show that (1) he engaged in a protected activity (i.e., he
disclosed information that he had reasonable cause to believe disclosed a violation of a
statute, rule or regulation), (2) his employer subjected him to an adverse employment
action, and (3) there is a causal link between the two. (Patten v. Grant Joint Union High
School Dist. (2005) 134 Cal. App. 4th 1378, 1384.)
Finally, under Labor Code section 1102.5, subdivision (c), an employer “shall not
retaliate against an employee for refusing to participate in an activity that would result in
a violation of a state or federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation.” Again, there must be a causal connection between
the plaintiff’s alleged refusal to participate and the adverse employment action. (Edgerly,
supra, 211 Cal.App.4th at p. 1199.)
2. Reasonable belief of a violation
Thus, the first question under Labor Code section 1102.5 is whether appellant had
reasonable cause to believe that there existed a violation of a state or federal statute, or a
violation of or noncompliance with a local, state, or federal rule or regulation. The trial
court held that appellant “cited no authority to support his argument that violation of a
40-year-old Senate appropriations bill and/or the UME could be a basis for violation of
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[Labor Code section 1102.5].” As CDU points out, the UME agreement is a contract,
and does not qualify as a statute, rule or regulation. CDU also points out that SB 1026
was never codified.
SB 1026 is found in volume 2 of the 1973 Statutes of California, chapter 1140. It
was approved by then-Governor Ronald Reagan. CDU has provided no information
suggesting that the statute was ever repealed or amended. Thus, we disagree with the
trial court’s decision that appellant’s protests regarding noncompliance with SB 1026
cannot provide a basis for violation of Labor Code section 1102.5. On the record before
us, it appears that appellant did disclose a possible violation of a California law.
However, as set forth below, while it appears appellant engaged in protected
activity, appellant did not provide sufficient evidence to create a triable issue of fact as to
CDU’s violation of Labor Code section 1102.5, under any subdivision of that statute.
3. No evidence that a policy was made or enforced to prevent appellant
from disclosing a violation
Under Labor Code section 1102.5, subdivision (a), appellant was also required to
show that he was subjected to a rule or regulation preventing him from reporting such
alleged violation. Appellant testified that during his time as dean, he had conversations
with Katherine Nation, the associate vice president of the UC system regarding the fact
that CDU was out of compliance with the UME agreement. Appellant testified in his
deposition that under the tenure of the new president, in 2012, he was not permitted to
speak to Dr. Nation. When Dr. Carlisle assumed the position of president, he informed
the entire staff that they were not to communicate directly with the Board or the UC.
This was because Dr. Carlisle did not think this was the way other institutions worked
and he did not feel it was appropriate. Appellant stated that he had no issues with this
direction. He did not object to being prohibited from speaking to these entities, as he felt
it was the president’s prerogative.
Appellant’s testimony thus shows that the policy was not in place for the purpose
of preventing him from disclosing information, as required by Labor Code section
1102.5, subdivision (a). Instead, this was part of a general policy regarding the
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president’s position as to the appropriate way institutions should work. Appellant did not
disagree with this policy. Nor is there any evidence that he attempted to communicate his
concerns to the Board or the UC during the time that this policy was in place. Thus, the
policy was not enforced in a way to prevent appellant from voicing his concerns. He
never attempted to do so. Instead, he willingly followed an existing policy of the current
president which outlined the proper hierarchy of communications.
In fact, when specifically asked in his deposition why he had not gone to someone
outside of CDU to complain about CDU’s alleged noncompliance, appellant responded
that he had not complained to outside sources because he was not sure if there was
“another agreement that has been forged.” Thus, by appellant’s own admission, his
reason for failing to report the alleged violation was that he did not have sufficient
information to know if a violation had in fact occurred -- not because of a policy
preventing him from doing so.
A prima facie case of violation of Labor Code section 1102.5, subdivision (a) has
not been shown, because there is no evidence that CDU made or enforced a policy
preventing appellant from disclosing the alleged violations.
4. No evidence of a causal link between appellant’s alleged protected
activities and the adverse employment action
Under Labor Code section 1102.5, subdivision (b), a plaintiff cannot merely show
that he or she engaged in whistle-blowing activities that were followed at some point by
his termination. There must be evidence of a causal connection between the protected
activity and the adverse employment action. Casual connection is usually shown with
circumstantial evidence and includes a consideration of the proximity in time between the
protected action and the allegedly retaliatory employment action. (Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal. App. 3d 590, 615.) The employee must present more
than speculation. “[A] material triable controversy is not established unless the inference
is reasonable. And an inference is reasonable if, and only if, it implies the unlawful
motive is more likely than defendant’s proffered explanation. [Citation.]” (Cucuzza v.
City of Santa Clara (2002) 104 Cal. App. 4th 1031, 1038 (Cucuzza).)
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Appellant has failed to provide evidence of the required causal link between his
reporting of the alleged violations and the adverse employment action to establish a cause
of action under Labor Code section 1102.5, subdivision (b). Appellant stated that his first
discussions with Dr. Carlisle regarding compliance were in 2011, and that senior
leadership heard him repeatedly voice his concerns. Appellant brought up the
noncompliance issue several times with very little response; it was put on the back
burner. In fact, appellant testified that he articulated concerns regarding the program
throughout his time as dean of CDU. Because appellant’s complaints had been ongoing
throughout his five-year tenure, there is no temporal connection between appellant’s
alleged protests about the noncompliance and the adverse employment action.
Appellant also claims that he complained to each CFO that the funds received
from UC should not be listed as “unrestricted” on CDU’s budget. When asked which
CFO he complained to, appellant responded “To Ron Lau and every CFO prior to him.”
Appellant was informed by Mr. Main that the funds are used at the discretion of the
president. Again, there is no evidence that Dr. Carlisle was involved in, or even aware
of, these conversations. In addition, because appellant had complained to every CFO
throughout his tenure, there is no specific temporal connection between appellant’s
complaints and the adverse employment action.
5. No evidence of a causal link between appellant’s alleged refusal to
participate and the adverse employment action
Appellant also attempts to assert a prima facie case under Labor Code section
1102.5, subdivision (c) for his refusal to sign the final audit during his tenure as dean.
Appellant testified that there is a general purpose audit relating to the contracts between
UC and CDU. The audit also relates to the funds that CDU receives through UC deriving
from SB 1026. Appellant agreed that UC had never claimed that the audits were
insufficient. However, appellant suggested that the audits were incorrect and stated that
he refused to sign the last audit during his tenure as dean.11 There is no evidence that
11 Appellant was unsure which year he had refused to sign an audit.
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Dr. Carlisle was aware of appellant’s refusal to sign the audit or whether appellant’s
action had any consequences at all. Thus, there is no evidence of a causal connection
between appellant’s alleged refusal to participate in the final audit of his tenure and any
adverse employment action.
Based on the evidence before the trial court, and the evidence improperly
excluded, we conclude that summary judgment was properly granted as to appellant’s
third cause of action for whistle-blowing.
D. Fourth cause of action for retaliation under FEHA
To establish a prima facie case of retaliation under FEHA, a plaintiff must show
“(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee
to an adverse employment action, and (3) a causal link existed between the protected
activity and the employer’s action. [Citations.]” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal. 4th 1028, 1042.)
A protected activity under FEHA includes the employee’s opposition to “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).) In
support of his claim for retaliation under FEHA, appellant points to his response to a
special interrogatory in which he made the following statement:
“Made official HR claim against President (David Carlisle)
concerning fear of retaliation in May 2012 (prior to dismissal). . . . No
evidence that his superiors were informed of claim or that an investigation
was undertaken.”
Appellant’s own response negates the required causal link. Appellant points to no
evidence that Dr. Carlisle ever knew of appellant’s alleged “HR claim” or that it ever left
the desk of the unknown human resources employee that accepted the claim. To survive
summary judgment, appellant must show more than the filing of an “HR claim.” He
must provide evidence of a causal connection between the alleged complaint and his
termination. He has not done so. Summary judgment was properly granted as to this
cause of action.
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E. Sixth cause of action for termination in violation of public policy
Appellant maintains that the trial court made no ruling regarding the sixth cause of
action against CDU. In its March 26, 2015 ruling granting summary judgment, the trial
court stated that there were only four remaining causes of action. However, appellant
maintains, this was incorrect. The sixth cause of action remained viable as to CDU.
Therefore, appellant argues, the sixth cause of action against CDU survived both the
demurrer and the summary judgment motion, and the judgment should be reversed and
remanded as to this cause of action.
CDU maintains that the court simply made a typographical error in its ruling in
stating that four causes of action were at issue, instead of five. Despite this typographical
error, CDU states, the fact remains that the parties briefed all five causes of action, and
the trial court clearly found that there were no genuine issues for trial and that the
summary judgment motion was granted in full. Had it been a partial ruling, the trial court
would have granted the alternative motion for summary adjudication, not summary
judgment.
The record shows that the trial court granted summary judgment in full. We may
affirm this ruling if it is correct on any ground. (Bunnell, supra, 64 Cal.App.4th at p.
1367.)12
12 Appellant complains that the trial court’s failure to specifically address the sixth
cause of action is in violation of Code of Civil Procedure section 437c, subdivision (g),
which requires that “[u]pon the grant of a motion for summary judgment on the ground
that there is no triable issue of material fact, the court shall, by written or oral order,
specify the reasons for its determination. The order shall specifically refer to the
evidence proffered in support of and, if applicable, in opposition to the motion which
indicates that no triable issue exists.” Appellant admits that failure to provide a sufficient
statement of reasons is not automatic grounds for reversal. (Santa Barbara Pistachio
Ranch v. Chowchilla Water Dist. (2001) 88 Cal. App. 4th 439, 448- 449 [court’s failure to
provide a sufficient statement of reasons is not automatic grounds for reversal, since it is
the validity of the ruling which we review, and not the reasons therefor].) Here, where
the evidence relating to the sixth cause of action was the same as the evidence relating to
the third and fourth causes of action for whistle-blowing and retaliation under FEHA, we
find that the trial court’s failure to specifically address the evidence relating to appellant’s
sixth cause of action is not reversible error.
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Wrongful termination in violation of public policy is a tort remedy available when
an employer’s discharge of an employee contravenes the dictates of public policy.
(Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d 167, 177.) In order to sustain a claim
of wrongful discharge in violation of public policy, a plaintiff must show that (1) the
employee engaged in a protected activity, (2) the employer subjected the employee to an
adverse employment action, and (3) a causal link existed between the protected activity
and the employer’s action. (Loggins v. Kaiser Permanente Internat. (2007) 151
Cal. App. 4th 1102, 1108-1109.)
In order to show a protected activity under this tort, an employee must have (1)
refused to violate a statute, (2) performed a statutory obligation, (3) exercised a
constitutional or statutory right or privilege, or (4) reported a statutory violation for the
public’s benefit. (Green v. Ralee Engineering Co. (1998) 19 Cal. 4th 66, 76.) In order to
avoid judicial policymaking, the public policy giving rise to the termination must have
“‘a basis in either constitutional or statutory provisions.’” (Id. at p. 80.) Internal reports
of wrongful activity may be considered to be protected activity. (Id. at p. 85.)
Assuming that appellant’s internal reports of noncompliance with the UME
agreement and SB 1026 qualify as a protected activity, appellant must also “demonstrate
the required nexus between his reporting of alleged statutory violations and his allegedly
adverse treatment.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1258,
overruled on other grounds in Romano v. Rockwell Internat., Inc. (1996) 14 Cal. 4th 479,
498.) Appellant’s cause of action for wrongful termination in violation of public policy
suffers from the same omission as the previous two causes of action discussed. Appellant
has failed to point to any evidence of a causal link between such complaints and his
termination from the positions of dean and provost.
As discussed above, appellant’s testimony that he complained of noncompliance
throughout his five-year tenure as dean undermines any suggestion of temporal
proximity. There is no evidence that his failure to sign the final audit report was ever
brought to the attention of the president, Dr. Carlisle, who had the sole authority to
terminate appellant from his position as dean and provost. In sum, there is simply no
25
evidence suggesting that an unlawful motive for appellant’s termination is more likely
than respondents’ proffered explanation. (Cucuzza, supra, 104 Cal.App.4th at p. 1038.)
The grant of summary judgment as to appellant’s sixth cause of action is therefore
affirmed.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
ASHMANN-GERST
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