Filed 3/27/14 Barron v. National Mentor Healthcare CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BARBARA BARRON et al., D063482
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2011-00093906- CU-WT-CTL) NATIONAL MENTOR HEALTHCARE, LLC et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed.
A. David Mongan for Plaintiffs and Appellants.
Downey Brand, Daniel J. Coyle and Shaye Schrick for Defendants and
Respondents.
INTRODUCTION
Barbara Barron and Cecilia Bamba-Pura (collectively, plaintiffs) appeal from
summary judgment granted to National Mentor Healthcare, LLC and CareMeridian, LLC (collectively, defendants) on plaintiffs' retaliation-related claims. Plaintiffs contend the
trial court erred by sustaining defendants' evidentiary objections without explanation,
determining there were no triable issues of material fact as to plaintiffs' claims, and
denying plaintiffs' new trial motion. We are not persuaded by plaintiffs' contentions and
affirm the judgment.
BACKGROUND
Plaintiffs' Discharge
Defendants operate residential facilities providing subacute and skilled nursing
services for individuals suffering from traumatic brain injury, spinal cord injury, and
medically complex injuries, such as neuromuscular or congenital anomalies. Bamba-
Pura worked at one of defendants' facilities as a certified nursing assistant (CNA) and
Barron worked at the same facility as a charge nurse. The two women, along with
another CNA, worked the night shift from 7:00 p.m. to 7:00 a.m.
One of the facility's residents complained Bamba-Pura disturbed him by talking
loudly on the phone while he was trying to sleep. Janet Matzke, the facility's director of
nursing and Bamba-Pura's supervisor, informed Bamba-Pura about the complaint and
told her to be more careful and considerate of residents in the future. Approximately 90
minutes after Bamba-Pura learned of the resident's complaint, plaintiffs confronted him
about it. According to the resident, plaintiffs surrounded his bed, badgered him with
questions, and were unfriendly toward him. He felt pressured by the questions, became
angry, and told them to leave his room. He subsequently complained about the incident
to Matzke. Plaintiffs deny any confrontation occurred.
2 Matzke met with plaintiffs to inform them of the resident's complaint and issued
write-ups to them. The next day, Matzke instructed the facility's assistant director of
nursing, Julie Cottam, to interview the resident and find out what happened. During the
interview, Cottam learned the resident was afraid of plaintiffs and feared their retaliation.
Based on the resident's statements to her, Cottam, a mandated reporter, filed a complaint
with the State Department of Public Health (Department).1 Meanwhile, defendants
suspended plaintiffs pending further investigation. Several days later, defendants
discharged plaintiffs.2
Barron's Pre-Discharge Complaint History
Two years before her discharge, Barron complained of patient abuse or suspected
patient abuse to defendants. Defendants resolved Barron's complaint two months later.
A little over a year before her discharge, Barron complained about defendants to
the defendants' accrediting agency. Several months later, Barron received a write-up for
not processing a doctor's orders. Barron admitted the conduct, but believed the write-up
1 The Department subsequently investigated Cottam's report and concluded plaintiffs' conduct toward the resident was improper.
2 Bamba-Pura's previous employer also discharged her because of a patient abuse allegation. Following their discharge, plaintiffs filed complaints with the Department of Industrial Relations alleging retaliatory termination in violation of Labor Code section 1102.5. The Department of Industrial Relations investigated the complaints and concluded there was no reasonable cause to believe a violation of Labor Code section 1102.5 occurred.
3 was intended to be punitive rather than to help her be a better employee. She also
believed it was retaliatory because it followed her complaint to the accrediting agency.
A few months after Barron received the write-up, she made additional complaints
to both the accrediting agency and the Department. The Department investigated
Barron's complaint. As part of its investigation, the Department interviewed all of the
facility's employees, including Bamba-Pura. Two months after the interviews, Barron
received a write-up for failing to catheterize a resident every three to four hours as
directed. She admitted she waited longer than four hours to catheterize the resident
because she believed the resident could be catheterized every four to six hours and she
did not want to unnecessarily disturb his sleep. After receiving the write-up, Barron filed
another complaint with the Department alleging the write-up was retaliatory.
Bamba-Pura's Pre-Discharge Complaint History
Unlike Barron, Bamba-Pura never made a complaint to any governmental entity of
patient abuse at the facility, never made an internal complaint of patient abuse, and never
assisted Barron in making such complaints. Bamba-Pura also never told the defendants
she had made such complaints. However, the Department interviewed her along with the
other facility employees when the Department investigated one of Barron's complaints.
Additionally, a few months before plaintiffs' discharge, while Bamba-Pura was off
work because of an injury, Matzke purportedly remarked the facility had not had any
problems with the state or with the accrediting agency during Bamba-Pura's absence.
Matzke later purportedly described Bamba-Pura as a liability.
4 Lawsuit and Summary Judgment
Two years after their discharge, plaintiffs filed this lawsuit alleging causes of
action for wrongful discharge in violation of public policy, preemptive retaliatory
termination for disclosing information to a governmental agency in violation of Labor
Code section 1102.5, and unfair competition in violation of Business and Professions
Code section 17200 et seq. Defendants filed separate motions for summary judgment
against each plaintiff. The motions asserted plaintiffs' causes of action failed because
plaintiffs could not establish a prima facie case of retaliation or overcome defendants'
legitimate, non-retaliatory reasons for discharging them.3
The court granted both motions. As to Bamba-Pura, the court found defendants
established Bamba-Pura had not engaged in protected activity and her assertion
defendants believed she had was speculative. The court also found defendants met their
burden of establishing there was no causal connection between Bamba-Pura's cooperation
in the Department's investigation and her discharge. As to Barron, the court similarly
found defendants had met their burden of establishing there was no causal connection
between Barron's various complaints and her discharge. As to both plaintiffs, the court
found defendants established they had a legitimate, non-retaliatory basis for discharging
plaintiffs and plaintiffs did not provide sufficient evidence to create a triable issue of fact
3 The motions further asserted plaintiffs' claims for punitive damages failed. The court did not reach this issue and it is not before us in this appeal.
5 that the basis was pretextual or that defendants failed to conduct a good faith
investigation into the incident leading to their discharge.
DISCUSSION
"On appeal after a 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. [Citation.] Under
California's traditional rules, we determine with respect to each cause of action whether
the defendant seeking summary judgment has conclusively negated a necessary element
of the plaintiff's case, or has demonstrated that under no hypothesis is there a material
issue of fact that requires the process of trial, such that the defendant is entitled to
judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334
(Guz).)
I
Evidentiary Objections
A
Preliminarily, we address plaintiffs' contention the court erred in sustaining
defendants' objections to portions of declarations they submitted in opposition to the
summary judgment motions. "Evidence submitted for or against a motion for summary
judgment must be admissible if being offered at trial." (Kincaid v. Kincaid (2011) 197
Cal.App.4th 75, 82.) Although the California Supreme Court has not decided the matter
(Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535), the majority view is that an appellate
court reviews the superior court's evidentiary rulings on summary judgment for abuse of
6 discretion. (Kincaid v. Kincaid, supra, at pp. 82-83.) If we determine the court
improperly excluded any evidence, we consider the evidence in reviewing the correctness
of the court's summary judgment ruling. (See, e.g., Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 257 (Nazir).)
B
Written objections to evidence submitted in support or opposition to a motion for
summary judgment or summary adjudication must be in one of two acceptable formats,
be numbered consecutively, and: "(1) Identify the name of the document in which the
specific material objected to is located; [¶] (2) State the exhibit, title, page, and line
number of the material objected to; [¶] (3) Quote or set forth the objectionable statement
or material; and [¶] (4) State the grounds for each objection to that statement or material."
(Cal. Rules of Court, rule 3.1354(a) & (b).)4 In addition, the objections must be
submitted with a proposed order that includes "places for the court to indicate whether it
has sustained or overruled each objection" as well as "a place for the signature of the
judge." (Rule 3.1354(c).)
Here, defendants filed 35 written objections to evidence submitted by Bamba-Pura
and 42 written objections to evidence submitted by Barron. Since Bamba-Pura and
Barron relied on some of the same evidence, at least 31 of defendants' objections were
virtually identical. The objections to Bamba-Pura's evidence spanned five pages, and the
objections to Barron's evidence spanned seven pages. The objections quoted the
4 Further rule references are to the Rules of Court unless otherwise stated.
7 challenged evidence and specified the bases for the challenges, including citations to
applicable authority. The objections also included places for the court to indicate
whether it overruled or sustained them. However, the objections did not include a place
for the judge's signature.
As part of its rulings on defendants' motions, the court overruled four of
defendants' objections to Bamba-Pura's evidence and 10 of defendants' objections to
Barron's evidence. The court sustained defendants' remaining objections, but did not
specify which of the asserted bases it relied upon.
C
Plaintiffs contend we must treat defendants' objections as waived because the
court failed to expressly rule on each objection and instead "provided a blanket ruling
specifically overruling 14 of them and then sustaining all the rest." However, a court's
failure to expressly rule on evidentiary objections will not result in a waiver of the
objections on appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 526.) Rather, the
court's failure to rule will result in a presumption the court overruled the objections and
considered the evidence in ruling on the merits of the summary judgment motion. (Id. at
p. 535.)
We do not believe the presumption applies here because we do not agree with
plaintiffs' assertion the court's ruling amounted to a failure to rule. Nazir, supra, 178
Cal.App.4th 243, upon which plaintiffs rely, is readily distinguishable. In Nazir, the
"[d]efendants' reply included 764 objections, set forth in 324 pages." (Id. at p. 254.)
8 Although the court did not address the objections in its tentative ruling or at oral
argument, its final ruling overruled one of the objections and sustained the remainder.
(Id. at pp. 254-255.) The appellate court concluded the ruling was too cursory to provide
a meaningful basis for review. (Id. at p. 255.) The appellate court also concluded the
ruling was an abuse of discretion because "there is no way that the trial court could
properly have sustained 763 objections ' '' 'guided and controlled . . . by fixed legal
principles.' " ' '' (Ibid.) The appellate court reached the latter conclusion because some of
the sustained objections did not assert a basis for the objection; some of the sustained
objections were to plaintiff's testimony about his relevant personal information;
approximately one third of the objections did not quote the challenged evidence in
violation of rule 3.1354(b); more than two dozen of the objections were to plaintiff's
brief, not to his evidence; and many of the objections were patently frivolous. (Id. at
pp. 255-257.)
In this case, since most of defendants' objections included multiple bases, the court
should have specified which bases it relied upon for those it sustained. Nonetheless,
defendants' objections and their bases are sufficiently limited in number and scope that
we cannot conclude the court's ruling precludes meaningful appellate review. In
addition, while plaintiffs disagree with some of the court's rulings, plaintiffs have not
identified any deficiencies comparable to those in Nazir, supra, 178 Cal.App.4th 243.
Thus, we cannot conclude the court's ruling as a whole could not have been guided and
controlled by fixed legal principles.
9 2
Plaintiffs alternatively contend we must treat defendants' objections as waived
because the objections failed to include a place for the judge's signature. However, an
appellate court will not treat evidentiary objections as waived on procedural grounds
when, as here, the record shows the trial court ruled on their merits. (Herrera v.
Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1378.)
D
Turning to the merits of the objections, plaintiffs contend the court erred in
sustaining defendants' 27 objections to statements contained in the declaration of a
former coworker. The predominant grounds for the objections were lack of personal
knowledge, lack of foundation, hearsay, and irrelevancy. Rather than address specific
objections to specific statements, plaintiffs simply contend the court should have
overruled the objections because the excluded evidence was relevant and its admission
was necessary for them to establish their claims. Such analysis is not sufficient to meet
plaintiffs' burden on appeal, as they must establish both error and prejudice. (Morgan v.
Wet Seal, Inc. (2012) 210 Cal.App.4th 1341, 1369 (Morgan); see Cal. Const., art. VI,
§ 13 ["No judgment shall be set aside, or new trial granted, in any cause, on the ground
of . . . improper admission or rejection of evidence, . . . or for any error as to any matter
of procedure, unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a miscarriage of
justice."]) We cannot satisfy their burden for them. (Morgan, supra, at p. 1369, citing
10 Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 ["One cannot simply say the court
erred, and leave it up to the appellate court to figure out why"]; In re Marriage of
Schroeder (1987) 192 Cal.App.3d 1154, 1164 ["court is not inclined to act as counsel
for . . . any appellant and furnish a legal argument as to how the trial court's rulings in
this regard constituted an abuse of discretion."].)
Barron also contends the court erred in sustaining defendants' objections to two
portions of her declaration. Specifically, defendants made a hearsay objection to Barron's
statement that Bamba-Pura told the resident who complained about Bamba-Pura talking
on the phone too loudly, "she was sorry for disturbing him." Defendants also made lack
of personal knowledge, lack of foundation, and hearsay objections to Barron's statements
that the resident angrily and loudly said, "You're going to get fired, B! You get in too
many peoples' faces, B!"
Barron argues the court should have overruled the hearsay objections because the
statements were not offered for their truth. She contends the first statement was offered
to rebut the resident's assertion Bamba-Pura confronted him in his room and the second
and third statements were offered to show the resident participated in a conspiracy to
terminate plaintiffs. She further contends the court should have overruled the lack of
personal knowledge and lack of foundation objections to the second and third statements
because the resident made the statements in her presence and directed them to her.
Assuming, without deciding, Barron has satisfied her burden of establishing error,
she does not explain how exclusion of the evidence prejudiced her. More particularly, 11 she does not explain how the evidence affects her burden and, correspondingly, the
outcome of this case. As discussed previously, Barron must show both error and
prejudice. (Morgan, supra, 210 Cal.App.4th at p. 1369.) Because she has not done so,
she has not established the court abused its discretion in sustaining defendants' objections
to her declaration.
II
Summary Judgment
All three of plaintiffs' causes of action are premised on their claim defendants
retaliated against them for whistle-blowing activities. The analysis of a retaliation claim
is similar to the analysis of other employment-related claims, requiring consideration of
whether: (1) plaintiffs established a prima facie case of retaliation; (2) defendants
provided a legitimate, nonretaliatory explanation for its actions; and (3) plaintiffs showed
this explanation was merely a pretext for the retaliation. (See, e.g., Patten v. Grant Joint
Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384; accord McVeigh v.
Recology San Francisco (2013) 213 Cal.App.4th 443, 468; Akers v. County of San Diego
(2002) 95 Cal.App.4th 1441, 1453.)
Many of the arguments below and on appeal focused on whether plaintiffs can
establish a prima facie case of retaliation. We need not address this point because, even
if we assume plaintiffs can establish a prima facie case, defendants provided a legitimate,
nonretaliatory explanation for discharging plaintiffs and plaintiffs have not met their
burden of showing defendants' explanation was pretextual. (See Batarse v. Service
Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834 (Batarse).)
12 To meet their burden on this point, plaintiffs had to do more than show defendants'
explanation was wrong, mistaken or unwise. They had to demonstrate the explanation
was so weak, implausible, inconsistent, incoherent, or contradictory a reasonable
factfinder could find the explanation unworthy of credence and, consequently, infer
defendants did not act for the asserted nonretaliatory reasons. (Batarse, supra, 209
Cal.App.4th at p. 834; Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 75.)
Evidence defendants may not have conducted a reasonable investigation of the
resident's complaint is not sufficient to establish pretext because the record does not show
defendants could only discharge plaintiffs for good cause. (Halvorsen v. Aramark
Uniform Services, Inc. (1998) 65 Cal.App.4th 1383, 1390-1391 [requirement to conduct a
reasonable investigation before discharging an employee only applies where there is an
agreement not to discharge an employee except for good cause].) Plaintiffs do not
contend nor have they produced evidence defendants agreed not to discharge them except
for good cause. Absent such an agreement, plaintiffs' employment was presumptively at
will. (Lab. Code, § 2922; Guz, supra, 24 Cal.4th at pp. 335-336.) Where an employer
may discharge an employee at will, the employer's " 'motive and lack of care in doing so
are, in most cases at least, irrelevant.' [Citations.] Since an employer does not require
good cause to terminate an at-will employee, in the normal course of events an employer
need not either articulate or substantiate its reasons, except to provide an advance
refutation for any inference that the true reason was illegal. Unless at-will employers are
to be held to a good-cause standard for termination, no inference of [retaliation] can
13 reasonably be drawn from the mere lack of conclusive evidence of misconduct by the
employee." (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510,
1533.)
Evidence Barron engaged in protected activity as recently as a few months before
plaintiffs' discharge is also not sufficient to meet plaintiffs' burden because temporal
proximity by itself will not create a triable issue as to pretext after an employer offers a
legitimate, nonretaliatory explanation for its actions. (Arteaga v. Brink's Inc. (2008) 163
Cal.App.4th 327, 353, 357.) Evidence defendants may have made negative remarks in
the same time frame to Bamba-Pura and others about engaging protected activity is not
sufficient to meet plaintiffs' burden for the same reason.
III
New Trial Motion
After the court granted summary judgment for defendants, plaintiffs filed a new
trial motion in part on the ground of newly discovered evidence. The evidence included a
declaration from a long-term employee of defendants. The declaration stated plaintiffs
were the only employees defendants ever discharged because of a patient abuse claim.
As support for this statement, the employee claimed he was personally aware of a patient
abuse complaint against another person who still worked for defendants. The employee
also claimed he was a regular caregiver for the resident who complained of mistreatment
by plaintiffs, the resident was difficult, and the resident had falsely complained about
mistreatment by the employee. Although the resident's complaint was never investigated,
14 Matzke gave the employee a write-up for the complaint purportedly "just to make [the
resident] happy." After defendants discharged plaintiffs, the resident told the employee
that Matzke owed the resident for the resident's help.
Plaintiffs' counsel's declaration in support of the new trial motion stated plaintiffs'
counsel interviewed the employee, but did not state when the interview occurred. Then,
approximately one month before plaintiffs filed their oppositions to defendants' motions,
plaintiffs' counsel met with the employee to outline his statement. After plaintiffs'
counsel provided the statement to the employee to sign, the employee stopped
communicating with plaintiffs' counsel.
Defendants opposed the new trial motion, arguing the evidence was not "newly-
discovered" because it was available to plaintiffs before the summary judgment hearing.
The court denied the motion without elaborating on its reasons.
Code of Civil Procedure section 657 provides: "The verdict may be vacated and
any other decision may be modified or vacated, in whole or in part, and a new or further
trial granted on all or part of the issues, on the application of the party aggrieved, for any
of the following causes, materially affecting the substantial rights of such party:
[¶] . . . [¶] 4. Newly discovered evidence, material for the party making the application,
which he could not, with reasonable diligence, have discovered and produced at the trial."
Plaintiffs may properly bring a new trial motion challenging an order granting summary
judgment on the basis of newly discovered evidence. (Hall v. Goodwill Industries of
Southern California (2011) 193 Cal.App.4th 718, 730 (Hall).) For entitlement to a new
15 trial on this basis, plaintiffs must establish: (1) the evidence was newly discovered; (2)
they exercised reasonable diligence in discovering and producing the evidence; and (3)
the evidence was material to their case. (Id. at p. 731.) We review a court's order
denying a new trial motion for abuse of discretion. (Id. at p. 730.)
Here, the record shows the employee at issue was a long-term employee of
defendants and a regular caregiver to the resident whose complaint led to plaintiffs'
discharge. Thus, plaintiffs inferably knew of him and his potential for being a source of
relevant information when they filed their complaint. Although plaintiffs' counsel did not
state in his declaration precisely when he learned of the employee's existence, it is
nonetheless inferable from the sequence of events described in plaintiffs' counsel's
declaration that plaintiffs' counsel knew about the employee and interviewed him well
before plaintiffs had to file their oppositions to the summary judgment motions.
Plaintiffs, therefore, have not established the evidence at issue was newly discovered or,
consequently, that the court abused its discretion in denying their new trial motion.5
5 Since plaintiffs did not establish the evidence was newly discovered, we need not consider whether they exercised reasonable diligence in discovering or producing it, or whether it was material to their case. (Hall, supra, 193 Cal.App.4th at p. 731, fn. 4.) 16 DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.