Franklin v. County of Solano CA1/2

Filed 1/10/23 Franklin v. County of Solano CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FIRST APPELLATE DISTRICT
DIVISION TWO
TERESA FRANKLIN,
Plaintiff and Appellant, A162752
v. (Solano County
COUNTY OF SOLANO, Super. Ct. No. FCS052129)
Defendant and Respondent.
Plaintiff and appellant Teresa Franklin appeals following the trial
court’s order granting the motion for summary judgment of defendant and
respondent County of Solano (County). Franklin filed an action alleging age
and race discrimination as well as retaliation after she was terminated from
her part-time employment at the Solano County Probation Department.
The County moved for summary judgment based on Franklin’s lack of
evidence to support her claims of discrimination and retaliation. The trial
court granted the motion and found that Franklin failed to present direct or
substantial circumstantial evidence to support that her termination was
based on a discriminatory or retaliatory motive under the McDonnell
Douglas1 test. We affirm.
1 McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
1
BACKGROUND
I.
Relevant Facts
A. 2016 Incident with Teresa Franklin
In June 2007, Franklin began working in the County’s Probation
Department as an extra-help group counselor. This was a part-time, at-will
position. Franklin’s role was to assist the full-time group counselors and staff
in supervising, counseling, transporting and managing any assaultive
behavior of juvenile offenders. The County’s juvenile detention center had a
drug treatment program called “New Foundations” that Franklin assisted in
in her capacity as an extra-help counselor. In 2016, Jeffrey Ingram was the
supervisor of New Foundations. Carol Marves was the direct supervisor of
the extra-help counselors, but she was not responsible for supervising
Franklin’s day-to-day work. Richard Watson was the interim superintendent
of the Probation Department from September 2015 to March 2016. He was
previously the Department’s Director of Institutions before he retired in late
2013.
On February 16, 2016, Ingram instructed Franklin to accompany
Anthony White, a full-time group counselor and peace officer, in transporting
six juveniles from the detention center to the food bank in a van. As relevant
to her claims of discrimination, Franklin is African-American and was over
the age of 40. White is Caucasian and was 23 years old. During the trip,
Franklin sat in the front passenger seat while White drove. The six minors
(five boys and one girl) sat in the back. There was caging in the van such
that the two front seats were separated from the rest of the van. This made
it difficult to see into the back of the van if it was dark. There appeared to be
no issues during the drive to the two food banks.
2
On the way back to the detention center, it was dark and raining
outside. White was driving and played music at a low volume. At one point,
Franklin heard a noise or movement over the music and asked the minors
what they were doing. They replied they were only dancing, and Franklin
told them to stop. White asked Franklin if they could turn on the cabin light
but Franklin responded that the light control was at the rear of the van.
Franklin chatted with the minors for the remainder of the trip and did not
hear any other noises of concern.
When the minors arrived back at the detention center and exited the
van, they did not report any issues or problems to Franklin, and Franklin did
not observe any physical signs of injury when she spoke to them. Franklin
then left to park the van while the minors checked back into the detention
center. On February 22, 2016, a staff member noticed that one of the boys
from the trip had bruises around his eye. An investigation revealed that the
boy was punched several times and that the female minor on the trip had
been sexually assaulted in the van. An incident report was drafted that
detailed these assaults. Watson read the incident report and spoke to the
two minors who had been attacked. They informed him that there was loud
music playing and that everyone, including Franklin, was dancing in the v an
when things “went south.” The minors did not say anything about White.
Watson did not speak to White or Franklin about what had occurred in the
van. Watson concluded that Franklin failed to pay attention to what the
minors were doing in the back of the van and terminated her employment on
February 23, 2016. Watson did not expect White to be looking in the back of
the van since his responsibility was to drive. An investigation as to White
3
took place after Watson left his interim position as superintendent.2 White
received a formal reprimand from the next superintendent but was not
terminated.
B. 2013 Incident with William Franklin
As is relevant to Franklin’s claims of associational discrimination and
retaliation, Franklin’s brother, William,3 is a group counselor in the County’s
Probation Department and has been employed at the County for over
23 years. Watson worked with him in juvenile hall before initially retiring in
late 2013. In March 2013, two juveniles escaped from the detention center
while William and two other counselors (one Caucasian and one African-
American) were working there. All three counselors initially received 10-day
suspensions due to this incident. Following settlement discussions with the
County, the Caucasian counselor reduced his suspension to one day while the
other African-American counselor reduced his suspension to four days.
William filed a grievance with the union with respect to his suspension
and the matter proceeded to arbitration in June 2015. William argued that
the County did not have cause to discipline him at all since he was on a
lawful break when the escape occurred and was not negligent in his duties.
The arbitrator agreed for the most part and issued an opinion on January 8,
2016, that sustained the grievance in part and reduced William’s suspension
to two days.4
2 An investigation occurred as to White based on his union
membership as a full-time group counselor and based on the Peace Officers’
Bill of Rights.
3We refer to William Franklin by his first name to avoid confusion and
mean no disrespect by it.
4 The arbitrator denied the grievance in part after finding that William
neglected his duty after the escape and committed several policy violations
prior to the escape.
4
Watson admitted the escape was an embarrassing and humiliating
incident that no superintendent wanted to go through. Watson retired before
the initial suspensions were imposed on William and the two other counselors
and was not involved in William’s grievance process or arbitration. Watson
did not review the arbitrator’s opinion when it came out but recalled that he
probably heard about the outcome of the arbitration when he returned as
interim superintendent. He does not recall whether he heard about the
outcome before or after Franklin’s termination.
II.
Motion for Summary Judgment
Franklin filed a complaint for direct and associational race
discrimination, direct and associational retaliation, age discrimination and
failure to prevent discrimination and retaliation. These claims were all
brought under the Fair Employment and Housing Act (FEHA). Franklin’s
associational claims for discrimination and retaliation rested on allegations
that William’s race and grievance complaint were substantial motivating
reasons for the County’s decision to terminate Franklin. Franklin’s direct
retaliation claim vaguely alleged that she “reported and/or made complaints
to [the County] regarding race discrimination, associational race
discrimination, retaliation, and associational retaliation.”
The County filed a motion for summary judgment. As to age
discrimination, the County argued that the complaint failed to adequately
allege that Watson harbored any age bias when he terminated Franklin, or
that a younger person subsequently replaced her. As to race discrimination,
the County argued that Franklin failed to allege which specific decision-
maker at the County harbored racial bias or that disparate treatment of
similarly situated employees occurred since Franklin was a part-time helper
5
while White was a full-time sworn officer who was inexperienced with food
bank trips. The motion further argued that a claim for associational
discrimination does not apply to associates of the same race and that even if
it did, there was no factual support for the theory that the County suddenly
decided to discriminate against Franklin because her brother was African-
American after employing both for many years.
With respect to retaliation, the County argued a lack of factual
allegations to support the assertion that Franklin reported any
discrimination or retaliation to the County prior to her termination. With
respect to associational retaliation, the County argued that William’s
grievance as to his suspension did not qualify as protected activity and no
facts supported that the County terminated Franklin as retaliation for the
outcome of William’s arbitration. Finally, the County contended that the
cause of action for failure to prevent discrimination and retaliation could not
survive without any actionable, underlying discrimination or retaliation.
In opposition, Franklin briefly argued in support of her age
discrimination claim that she was over 40 years old at the time of the subject
incident while White was 23 years old. She then stated that additional
discovery was required “to determine the age of the other group counselors
and supervisors involved in [her] termination.” As to race discrimination,
Franklin generally argued that there were “disputed facts pertaining to
whether County’s adverse action against [her] was a legitimate business
reason for termination or was a pretext for discrimination.”
With respect to retaliation, the opposition alleged that Franklin had
complained to her supervisors about “dismissive and rude comments” Ingram
had previously made towards her. In support of associational retaliation,
Franklin cited to the proximity in time between the January 8, 2016
6
arbitration opinion in William’s case and her termination on February 23,
2016. Franklin then filed a supplemental opposition that included various
portions of Watson’s deposition testimony to support her claim for
associational retaliation.5 Specifically, Franklin argued that “[a] jury could
infer that Watson’s embarrassment and humiliation for the escape of the
juveniles in 2013 while under his watch as superintendent resurfaced when
the arbitrator ruled against the County” and that “[t]his defeat prompted
Watson to terminate [Franklin] within weeks of the arbitrator’s decision.”
Following oral argument, the trial court granted the County’s motion
for summary judgment. The court held that Franklin “presented no direct or
substantial circumstantial evidence of race or age discrimination” nor any
evidence to challenge the County’s race-neutral reason for the disparate
discipline as to White based on “his role as the driver, and his need to
concentrate his attention on driving.” Similarly, the court found a lack of
direct and circumstantial evidence to support a claim for retaliation.6 The
court further held that associational discrimination did not apply because
Franklin and William are the same race. Finally, the court held that even
assuming William’s grievance constituted a protected activity and that
Watson, the person who decided to terminate Franklin, knew about the
arbitration outcome, “this evidence alone is insufficient to survive summary
judgment.”
The trial court entered judgment in favor of the County and Franklin
now appeals.
5 Though Franklin refers to “associational discrimination” in her
supplemental opposition, the substance of the argument primarily supported
her claim for associational retaliation.
6 On appeal, Franklin makes no argument as to her claim for direct
retaliation. We therefore deem it forfeited.
7
DISCUSSION
I.
Standard of Review
Summary judgment is proper “if all the papers submitted show that
there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) A defendant seeking summary judgment “bears the burden of
persuasion that there is no triable issue of material fact and that [it] is
entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.) A defendant meets this burden by showing that
plaintiff “has not established, and cannot reasonably expect to establish,” an
essential element of his claim. (Saelzler v. Advanced Group 400 (2001)
25 Cal.4th 763, 768.)
We review a grant of summary judgment de novo, which means we
“decide independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law.” (Intel Corp. v.
Hamidi (2003) 30 Cal.4th 1342, 1348.) In deciding whether a material issue
of fact exists for trial, we “consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained by
the court, and all inferences reasonably deducible from the evidence.”
(Code Civ. Proc., § 437c, subd. (c).) We view the evidence in the light most
favorable to the plaintiff, as the nonmoving party. (Saelzler v. Advanced
Group 400, supra, 25 Cal.4th at p. 768.)
8
II.
McDonnell Douglas Burden Shifting Test
Under FEHA, it is unlawful for an employer to engage in adverse
employment practices against a person based on age or race. (Gov. Code,7
§ 12940, subd. (a).) Claims of discrimination based on disparate treatment
are subject to a three-stage burden-shifting test established by the high court
in McDonnell Douglas Corp. v. Green, supra, 411 U.S. 792. (Guz v. Bechtel
Nat. Inc. (2000) 24 Cal.4th 317, 354.) This test “reflects the principle that
direct evidence of intentional discrimination is rare, and that such claims
must usually be proved circumstantially. Thus, by successive steps of
increasingly narrow focus, the test allows discrimination to be inferred from
facts that create a reasonable likelihood of bias and are not satisfactorily
explained.” (Ibid.) The plaintiff bears “the initial burden to establish a
prima facie case of discrimination.” (Ibid.) Although the specific elements
may vary depending on the facts of a particular case, the plaintiff must
generally make an initial showing that “(1) he was a member of a protected
class, (2) he was qualified for the position he sought or was performing
competently in the position he held, (3) he suffered an adverse employment
action, such as termination . . . , and (4) some other circumstance suggests
discriminatory motive.” (Id. at p. 355.)
If the plaintiff establishes a prima facie case, a presumption or
inference of discrimination arises and “the burden shifts to the employer to
rebut the presumption by producing admissible evidence . . . that its action
was taken for a legitimate, nondiscriminatory reason.” (Guz v. Bechtel Nat.
Inc., supra, 24 Cal.4th at pp. 355-356.) If the employer meets this burden,
7 All further statutory references are to the Government Code unless
otherwise specified.
9
“the presumption of discrimination disappears. [Citations.] The plaintiff
must then have the opportunity to attack the employer’s proffered reasons as
pretexts for discrimination, or to offer other evidence of discriminatory
motive.” (Id. at p. 356.) Ultimately, the burden of persuasion remains with
the plaintiff. (Ibid.) Further, a plaintiff cannot “simply show the employer’s
decision was wrong, mistaken, or unwise” if it was based on a non-
discriminatory reason. (Horn v. Cushman & Wakefield Western, Inc. (1999)
72 Cal.App.4th 798, 807 (Horn).)
In the context of an employer’s motion for summary judgment, the
employer, as the moving party, bears the initial burden of showing that one
or more of the elements of a prima facie case for discrimination cannot be
established or that the adverse employment action was based on legitimate,
nondiscriminatory factors. (Abed v. Western Dental Services, Inc. (2018)
23 Cal.App.5th 726, 738; Caldwell v. Paramount Unified School Dist. (1995)
41 Cal.App.4th 189, 202.) If the employer meets this initial burden, the
burden then shifts to the plaintiff to “demonstrate a triable issue by
producing substantial evidence that the employer’s stated reasons were
untrue or pretextual, or that the employer acted with a discriminatory
animus, such that a reasonable trier of fact could conclude that the employer
engaged in intentional discrimination or other unlawful action.” (Cucuzza v.
City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)
III.
Age and Race Discrimination
Franklin contends that a prima facie case for discrimination was
established since she is an African-American woman over 40 years old, had
competently performed in the position she held, and suffered an adverse
employment action under circumstances that suggests a discriminatory
10
motive because White was given more favorable treatment.8 An inference of
discrimination to support a prima facie case may be established by showing
that employees similarly situated to the plaintiff engaged in the same
misconduct as the plaintiff but received less severe discipline. (McGrory v.
Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1535.)
Franklin further contends she met her second burden in establishing
that the County’s proffered reasons for her discharge were untrue. In
support, Franklin argues that Watson jumped to the conclusion that she
could see into the back of the van or that she was not paying attention. She
also argues that other factors contributed to the assaults occurring, including
Ingram’s decision to send juveniles on the food bank trip who did not qualify
for furlough and the County’s recent policy change that no longer allowed
female minors to sit in the front of the van with the counselors.
The County devotes much of its brief in arguing that Franklin failed to
establish a prima facie case for discrimination. The County argues that
Franklin failed to show that she was similarly situated enough with either
White or the Caucasian counselor involved in William’s incident, since the
latter two were full-time officers, and failed to show that they all engaged in
the same misconduct such that their disparate discipline should raise an
inference of discrimination. We need not reach these issues because, even
assuming Franklin established a prima facie case, the County proffered a
legitimate reason for its decision to terminate her employment and she has
not offered evidence sufficient to show or support an inference that this
reason was a pretext for discrimination.
8 Although we agree with the County that Franklin’s argument in
support of age discrimination both below and on appeal is perfunctory at best,
we do not deem the issue forfeited.
11
Watson made the decision to terminate Franklin after reading the
incident report and speaking with the two minors who had been attacked.
He concluded that injuries were allowed to occur to multiple minors because
Franklin was not paying attention to what the minors were doing in the van.
The incident report noted that the male minor was punched multiple times at
different points during the trip and that the female minor was physically
attacked while another male minor tried to pull down her pants. The minors
told Watson there was loud music playing and they and Franklin were
dancing in the van when, as Watson testified, things “went south.” Watson
did not find fault with White because his responsibility was to drive and not
to monitor what the minors were doing in the back. Watson was not involved
in any disciplinary decision as to White, which was left to the next
superintendent who replaced Watson.
Though Franklin contends that the County’s claimed reasons for
terminating her employment were untrue, she proffers evidence that, at
most, suggests the County’s decision was hastily and perhaps unfairly
reached. For example, she argues that Watson “jumped to the conclusion”
that she was not paying attention to the minors and that she could see into
the back of the van without first asking her or any other staff member about
what occurred during the trip. This shows that Watson’s decision may have
been rashly made or even ill-informed but not that it was due to any animus
based on Franklin’s age or race. Indeed, a plaintiff cannot “simply show the
employer’s decision was wrong, mistaken, or unwise” but must show that the
proffered reasons suffer from such inconsistencies or is so implausible that
“ ‘ “a reasonable factfinder could rationally find them ‘unworthy of credence,’
[citation], and hence infer ‘that the employer did not act for the [ . . . asserted]
non-discriminatory reasons.’ ” ’ ” (Horn, supra, 72 Cal.App.4th at p. 807,
12
quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1005.)
Franklin also attempts to shift the blame for the subject assaults to the
County. She argues that Ingram allowed juveniles who did not qualify for
furlough on the food bank trip, that Ingram failed to properly brief Franklin
and White as to this fact, and that the County had recently changed its policy
so that female minors were required to sit in the back of the van with the
male minors instead of in the front seat with the counselors. Again, although
these may have been poor decisions and may even have contributed to the
problems that led up to Franklin’s termination, they do not show the
County’s reasons for terminating Franklin’s employment were based on a
discriminatory motive.
Last, Franklin argues that certain “stray remarks” previously made by
Ingram constitute further evidence of the County’s discriminatory motive in
terminating her. For example, Franklin alleged that Ingram commented to
others that Franklin’s daughter was going to get pregnant and drop out of
college. Even assuming this was a racially motivated remark by Ingram, who
is also African-American, there is no evidence that he played any part in the
decision to terminate Franklin. In the absence of such evidence, these “stray
remarks” are not material to whether the County terminated Franklin’s
employment based on her race. (See King v. United Parcel Service, Inc. (2007)
152 Cal.App.4th 426, 434 [coworkers’ animosity or mistreatment toward
plaintiff has no bearing in summary judgment proceedings where they were
not involved in the decision to terminate plaintiff].)
13
IV.
Associational Discrimination
Franklin contends that the County engaged in associational
discrimination and associational retaliation based on her relationship with
her brother, William. We address these two claims separately even though
Franklin confusingly intertwines them into one argument in her briefs.
FEHA prohibits an employer from taking adverse employment action
against a person based on his or her race. (§ 12940, subd. (a).) “Race” is
defined to include a person’s association with another person of a particular
race. (§ 12926, subd. (o).) For example, an employer may not subject a
Caucasian employee to adverse treatment because she is married to an
African-American man. (See Watson v. Nationwide Ins. Co. (9th Cir. 1987)
823 F.2d 360.) Here, the complaint alleged that “[William’s] race was a
substantial motivating reason” for the County’s decision to terminate her.
Her opposition to the County’s motion however, made no argument in
support of associational discrimination, and her supplemental opposition
argued that Watson terminated Franklin in retaliation after finding out that
William received a favorable outcome in his arbitration.
On appeal, Franklin unsurprisingly conflates her unsupported
associational discrimination claim with associational retaliation and argues
that the County “intentionally discriminated and retaliated against her
because of her family relationship with William.” Franklin then goes onto
argue that both she and William suffered disparate treatment as African-
American counselors while Watson was the superintendent and that a
connection exists between “his racially disparate treatment of [William] and
retaliation against [Franklin].”
14
Putting aside the issue the County raises as to whether associational
discrimination applies to associates of the same race, Franklin has not
proffered any evidence that Watson’s decision to terminate her was motivated
by the fact that her brother William is African-American. That William filed
a grievance because he allegedly received disparate discipline due to his race
is material to whether he was engaged in protected activity for purposes of
associational retaliation but does not support a claim for associational
discrimination, which focuses on one’s association with another who
possesses a protected characteristic. (§ 12926, subd. (o).) Indeed, as the
County points out, Franklin and William were both employed by the County
for many years and both knew Watson, and there is no evidence to suggest
that Watson was suddenly motivated to terminate Franklin because he
disliked her association with William because he was African-American.
V.
Associational Retaliation
FEHA prohibits discrimination by an employer “against any person
because the person has opposed any practices forbidden under this part or
because he has filed a complaint, testified, or assisted in any proceeding
under this part.” (§ 12940, subd. (h).) Like discrimination, claims of
retaliation also follow the McDonnell Douglas burden shifting test. “[T]o
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.” (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If this burden is met, “the
employer is required to offer a legitimate, nonretaliatory reason for the
adverse employment action. [Citation.] If the employer produces a
15
legitimate reason for the adverse employment action, the presumption of
retaliation ‘drops out of the picture,’ and the burden shifts back to the
employee to prove intentional retaliation. (Ibid.)” (Ibid.)
As discussed above, Franklin bases her claim of associational
retaliation on her brother William’s prior grievance and arbitration, which
Franklin argues were forms of protected activity. The County argues that
FEHA only prohibits direct retaliation and does not have an associational
aspect to it, unlike discrimination under FEHA. Franklin references the high
court’s decision in Thompson v. North American Stainless, LP (2011)
562 U.S. 170 which recognized a prohibition against associational retaliation
under Title VII. The County contends that Thompson is not applicable
because case authorities interpreting Title VII are only instructive in
construing FEHA when the FEHA provision is similar to a provision in
Title VII, which is not the case here. We do not reach the merits of this
argument because, even assuming associational retaliation is actionable
under FEHA, Franklin has not established a prima facie case for retaliation
by proffering evidence that the County’s reason for terminating her was
motivated by a desire to retaliate for her brother’s protected activity.
To establish a prima facie case for retaliation, a person must have
necessarily engaged in protected activity under FEHA. (§ 12940, subd. (h).)
An employee’s conduct constitutes protected activity when he or she “has
complained of or opposed conduct that the employee reasonably believes to be
discriminatory, even when a court later determines the conduct was not
actually prohibited by FEHA.” (Yanowitz v. L’Oreal USA, Inc., supra,36 Cal.4th at p. 1043.) However, “an employee’s unarticulated belief that an
employer is engaging in discrimination will not suffice to establish protected
conduct for purposes of establishing a prima facie case of retaliation, where
16
there is no evidence the employer knew that the employee’s opposition was
based upon a reasonable belief that the employer was engaged in
discrimination.” (Id. at p. 1046, italics added.)
Here, William’s grievance was based on the claim that the County did
not have cause to discipline him because he was on a lawful break at the time
the two juveniles escaped from the detention center. The arbitrator’s opinion
contained no reference to any allegation by William of disparate treatment
based on race. William’s declaration in support of Franklin’s opposition to
the County’s motion for summary judgment states he believed all along that
he was treated differently from his Caucasian co-workers and that he
informed the union of this when he initially talked to union representatives
about filing a grievance. However, the declaration does not state that
William ever accused the County directly of discrimination or informed it of
his belief that its decision was discriminatory. Nor does Franklin point to
any other evidence suggesting the County knew that William had claimed the
County had discriminated against him.
In addition, Franklin proffered no evidence that Watson was aware of
any assertion by William that he believed his discipline was a product of race
discrimination. The evidence that Watson may have learned of the
arbitrator’s ruling prior to deciding to terminate Franklin’s employment
(Watson did not recall whether he learned about it before or after) does not
support such an inference because, again, the arbitrator’s decision makes no
reference to any claim of race discrimination.
In short, Franklin has failed to raise a triable issue as to either the
element of motivation or the element of causation. The evidence does not
show Watson’s decision regarding Franklin was motivated by a desire to
retaliate for William’s race-related protected activity or that there was a
17
causal link between such activity and the decision to terminate her
employment.
VI.
Failure to Prevent Discrimination and Retaliation
In her opposition to the County’s motion, Franklin argued that
summary adjudication as to the cause of action for failure to prevent
discrimination and retaliation should be denied based on her underlying
claims of discrimination and retaliation. The trial court ruled in favor of the
County with respect to Franklin’s claims of discrimination and retaliation
and accordingly held that Franklin’s failure to prevent claim also failed.
On appeal, Franklin raises a new argument in support of this claim:
that the County should have undertaken an adequate investigation before
terminating her employment and afforded her the same rights as White, even
though White was a full-time employee with union rights. We decline to
reach this new argument since it was not raised before the trial court and
cannot now create a “triable issue” on appeal from an order granting
summary judgment. (Johanson Transportation Service v. Rich Pik’d Rite Inc.
(1985) 164 Cal.App.3d 583, 588.)
DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal.
18
STEWART, P.J.
We concur.
RICHMAN, J.
MILLER, J.
Franklin v. County of Solano (A162752)
19