Filed 9/3/26 Renovato v. Carter’s CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ADRIANA RENOVATO, B340591
Plaintiff and Appellant, (Los Angeles County Super. Ct. No.
v. 22STCV15958)
CARTER’S INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle C. Kim, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. Rand-
Lewis and Timothy Rand-Lewis for Plaintiff and Appellant.
Littler Mendelson, Helene Wasserman and Nicole Vongchanglor for Defendants and Respondents.
______________________________
After resigning from her job, appellant Adriana Renovato (Renovato) sued her former employers, Carter’s Inc. and Carter’s Retail, Inc. (collectively, Carter’s), as well as her former manager, Lisa Quibilan (Quibilan), for 14 claims arising from her allegedly wrongful termination. Carter’s and Quibilan (respondents) moved for summary judgment as to all of Renovato’s claims. The trial court granted the motion.
On appeal, Renovato argues that the trial court erred by disregarding the lengthy, substantive “corrections” she made to her deposition testimony one week after respondents filed their motion for summary judgment. She also contests various evidentiary and procedural rulings, as well as the merits of the judgment. We find that the court properly disregarded the purported corrections, and did not abuse its discretion in making the challenged subsidiary rulings. Moreover, our de novo review confirms the court’s assessment of the evidence. Accordingly, we affirm the judgment.
BACKGROUND
I. Renovato’s Employment Carter’s is a retailer of baby and children’s clothing. In November 2008, Renovato was hired by Carter’s as a sales associate.
Upon her employment, Renovato received and read an employee handbook. The handbook was also made available online for employees. The handbook outlined Carter’s policies condemning unlawful discrimination, harassment, and retaliation. Carter’s Code of Ethics also outlined its antidiscrimination , anti-harassment, and anti-retaliation policies. Carter’s had an internal complaint system, and instructed
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employees who believed they or others had been harassed or discriminated against to immediately report the incident to Human Resources. Renovato completed five trainings on this material during her employment.
In October 2010, Renovato internally applied for a promotion to supervisor at a store in a new location, which would come with a raise. On her application form, she initialed the following items:
“I understand that Carter’s Retail, Inc. has no employment contracts and cannot guarantee the permanence of any position. I understand that, if I am employed by Carter’s Retail, Inc., my employment can be affected by such factors as business or economic conditions, changes in company policies, my job performance, etc. I also understand that I may choose to leave Carter’s Retail, Inc. on my own accord.
“I further understand that employment with Carter’s Retail, Inc., shall be an employment at will, and no terms, policies, procedures, or rules of employment are guaranteed. I understand that no employment contracts will be recognized unless they are expressly stated in writing and signed by an authorized officer of the company.” (Uppercase omitted.)
These policies are also reflected in the employee handbook. Renovato interviewed with Quibilan. Quibilan gave Renovato the promotion.
In January 2012, Quibilan again promoted Renovato to assistant store manager. In June 2013, Quibilan promoted Renovato to store manager. Both promotions included raises.
As a store manager, Renovato reported directly to Quibilan.
Six months after becoming store manager, Renovato received
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another raise. Quibilan later transferred Renovato to a new store, for which she received another raise.
Between September 2016 and November 2017, Renovato received another raise. In or around November 2017, Renovato was transferred to another store and received another raise.
In 2019, Quibilan called Renovato to tell her that she had been selected to apply for the Store Manager Leadership Academy (the Academy), an internal program that trained store managers to become district managers. Quibilan advised Renovato to apply for the Academy, but also told Renovato “to not get [her] feelings hurt if [she] wasn’t chosen[.]” Quibilan told Renovato that she “didn’t fit the standard” of the corporate office because she “was uneducated[,]” her handwriting looked like “kindergarten writing[,]” and she did not “look like someone [who worked] in corporate[]” because she was “fat” and “needed to change the way that [she] dressed” and “use better language[.]” Renovato was upset and started crying, and ultimately decided against pursuing a promotion to district manager. She did not make a complaint about Quibilan’s comments.
In June 2019, Renovato received another raise. In early 2020, Renovato was transferred to a store in Glendale, and was asked to manage two stores from that location. She received another raise. Quibilan also selected Renovato to close down the Hawaii store. Renovato understood that Quibilan kept transferring her to new stores and increasing her responsibilities because she “was capable” and had a proven track record of “fix[ing] the problem[s]” of different locations.
During the 12 years Renovato was employed at Carter’s Retail, Inc. she received eight raises. She took maternity leave twice, once in 2010 and once in 2016. Both times, there were no
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changes made to her position upon her return, except that Renovato received promotions after her maternity leaves. Renovato continued to receive regular raises after she returned from each maternity leave.
Renovato received annual reviews from Quibilan. Quibilan never gave Renovato a negative review. However, Renovato claimed that Quibilan occasionally made comments about Renovato’s weight, including that Renovato “needed to lose weight” and “get a Lap-Band[.]” She had also insinuated that Renovato was “dumb” or “stupid[.]” Renovato did not make any internal complaints about Quibilan’s conduct. II. Renovato’s Resignation; Subsequent Developments In March 2020, Renovato was placed on furlough due to the COVID-19 pandemic. She applied for and received unemployment benefits.
In early May 2020, Quibilan had four conversations with Renovato about transferring to a larger store in Commerce that remained open during the pandemic. In their fourth conversation, Quibilan pressured her to commit to the transfer. Renovato declined because her commute would be too long. Renovato claimed that Quibilan threatened to cut off her unemployment benefits if she did not comply.
Renovato did not report the conversation. Instead, she applied for an assistant store manager position at a hardware store.
On May 15, 2020, Renovato was hired at the hardware store, for a higher base salary than she made at Carter’s. The same day, she submitted her resignation to Lynette Gage (Gage), a human resources officer. Gage called her the same day.
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Renovato claimed that she told Gage that she was resigning because of Quibilan’s conversations with her earlier that month.
Renovato continued to receive unemployment benefits until she began work at the hardware store. She received several raises. By 2022, she was earning over $15,000 more than she had during her last year working at Carter’s. As of November 2023, Renovato was still working at the hardware store.
On March 4, 2021, Renovato requested her personnel file from Gage. On March 18, 2021, Gage informed her that she could pick up her file. Renovato did so. III. Complaint; Answer In May 2022, Renovato sued respondents for 14 claims:
(1) breach of express written contract; (2) breach of implied contract; (3) breach of the covenant of good faith and fair dealing; (4) wrongful termination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.); (5) discrimination in violation of FEHA and the California Family Rights Act (CFRA) (Gov. Code, § 12945.2); (6) retaliation in violation of FEHA and CFRA; (7) harassment in violation of FEHA and CFRA; (8) failure to provide time off for child-related activities (Lab. Code, § 230.8); (9) violation of statutory protections for whistleblowers (Lab. Code, § 1102.5); (10) failure to timely provide personnel records (Lab. Code, § 1198.5); (11) fraudulent inducement; (12) intentional infliction of emotional distress (IIED); (13) unfair competition (Bus. & Prof. Code, § 17200 et seq.); and (14) violation of the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.). Renovato also sought punitive damages.
Renovato alleged that respondents “discriminated against, harassed, retaliated against and wrongfully terminated [her],
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based upon her gender, marital status, disability, perceived disability, and association with others[.]” She claimed that Quibilan’s comments towards her constituted harassment, created a hostile work environment, and caused her extreme distress.
Renovato’s contract claims were based on her allegations that respondents promised “she would remain in their employ[,] would be treated fairly[,] . . . . [¶] would not be arbitrarily transferred[,] and w[ould] be[] considered for promotion if she remained at work during the” pandemic. Despite these promises, Quibilan “forced [Renovato] to transfer or be fired . . . [which] forced her termination[.]”
In August 2022, respondents filed an answer generally denying Renovato’s allegations. IV. Renovato’s Deposition On November 7, 2023, respondents deposed Renovato. In addition to the facts outlined above, Renovato denied that any health care provider had advised her that she had a disability. Renovato did not consider herself to be disabled, nor did anyone at Carter’s Retail, Inc. indicate that they thought of her as disabled. Renovato never asked for an accommodation because of her weight, or because of her young children.
Renovato said that none of her requests for time off were denied, and that no “action was taken against [her] because of any leave of absence[.]” Renovato also denied that “anything negative ever happen[ed] to [her] affecting [her] employment[.]” Specifically, she denied that her salary was ever cut, or that Quibilan ever “demote[d] [her], . . . wr[o]te [her] up, . . . coach[ed] [her] in a negative fashion[,] . . . . [or] treat[ed] [her] in any way that . . . impacted [her] employment[.]”
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V. Motion for Summary Judgment On December 1, 2023, respondents moved for summary judgment as to Renovato’s entire complaint. Renovato opposed the motion. VI. Corrections to Renovato’s Deposition; Continuance; Motion to Strike; Ruling On December 8, 2023, Renovato served respondents with corrections to her deposition. (Code Civ. Proc., § 2025.520, subd. (b).) Renovato listed over 70 corrections, many of which were substantial, contradicted her previous answers, and were not responsive to the question asked. For example:
1. When asked, “Did you reach out to human resources to complain that you . . . felt unsafe as a result of [Quibilan’s] comments?[,]” Renovato initially answered, “No.”
She corrected her answer to, “Yes. I told . . . Gage.”
2. When asked, “Did any health care provider ever advise you that you were disabled?[,]” Renovato initially answered, “No.”
She corrected her answer to: “Yes. During my employment [Quibilan] told me I had become obese due to post partum depression, and I was depressed. I began therapy and became aware that while I was working there I displayed obvious signs of my depression and health issues to [Quibilan] then to [Gage], these were causing my obesity which I am now aware are disabilities as I was advised by my therapist. I was being abused by [Quibilan] it caused me to be depressed anxious fearful, to cry in distress in front of her, and I told [Gage] of all
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of this including my distress, depression and fear, I asked [Gage] to accommodate me by not requiring me to return to work for her, she said she would accommodate me then never gave me the promised accommodation.”
3. When asked, “Was there any other conduct of [Quibilan] that you observed her engage into [with] anyone, other than directed at you, that you found to be inappropriate?[,]” Renovato initially answered “Yes.”
She corrected her single-word answer to a repetitive, confusing, 1,520-word diatribe describing dozens of instances of alleged misconduct, most of them targeting Renovato herself. For one example: “[Quibilan] touched me offensively repeatedly and poked at me with sharp finger nails repeatedly in an offensive manner that was demeaning and painful, literally needling me with her finger nails, which she though [sic] was funny, she would then smirk or laugh after she did it.” For another: “[Quibilan] threatened to illegally withhold my unemployment benefit, I then complained to [Gage] and told her I had no choice but to resign I could not continue to work for [Quibilan] because of all of her misconduct including forcing me to take over the Commerce Store and after I told her multiple times I could not work with her threatening me, that she had made me do her work for her the whole time I worked for her and took credit for my work, that many managers were mistreated by her and that I had to intervene to prevent them from quitting, told her of the abusive conduct, that I had been made to suffer break[]downs, that she made it seem like what she was doing was normal and that I had to
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accept it because she made so much money for the [c]ompany no one would believe me if I reported her.”
In February 2024, the trial court continued the hearing on respondents’ motion for summary judgment to July 2024. The court gave respondents the option of proceeding on the currentlyfiled motion, or filing a new motion.
Also in February 2024, respondents moved to strike Renovato’s deposition corrections, arguing, among other things, that the purported corrections “ ‘were not corrections at all, but rather purposeful rewrites tailored to manufacture an issue of material fact’ ” to defeat respondents’ motion for summary judgment.
In April 2024, the trial court denied respondents’ motion to strike Renovato’s corrections. The court opined that the corrections constituted “a completely egregious situation[,]” but determined that the law did not “give . . . [respondents a] remedy[.]” The court found that Renovato was permitted by statute to make substantive corrections to her deposition within 30 days (Code Civ. Proc., § 2025.250, subd. (b)), and that statute did not authorize the court to strike corrections. The court also concluded that the sham declaration doctrine did not support respondents’ motion to strike the corrections. VII. Renewed Motion for Summary Judgment; Opposition; Evidentiary Objections On April 17, 2024, respondents filed a substantially similar renewed motion for summary judgment of Renovato’s entire complaint. To their motion, respondents attached, among other things, portions of Renovato’s deposition and her corrections thereto; a declaration from Gage; a declaration for Quibilan;
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Renovato’s 2010 application for promotion; an employee handbook and various policies; multiple training certificates earned by Renovato during her employment; Renovato’s personnel files, documenting promotions, transfers, raises, and leaves of absence; and an email exchange between Gage and Renovato regarding personnel files.
Renovato opposed the motion. As an alternative to denial of the motion, Renovato sought a continuance of the hearing due to respondents’ alleged failure to produce necessary discovery. To her opposition, Renovato attached declarations from her counsel; a declaration from herself regarding her deposition corrections; and the deposition corrections.
Respondents filed a reply which argued, among other things, that Renovato should not be able to use sham deposition corrections to defeat summary judgment.
Both parties made a variety of evidentiary objections.
Respondents raised 25 objections to Renovato’s evidence. Renovato lodged over 120 objections to respondents’ evidence. VIII. Reassignment; Ruling; Judgment; Appeal In June 2024, the matter was reassigned to a new trial judge.
On August 2, 2024, the trial court granted respondents’
motion for summary judgment in a detailed, 18-page opinion. The court first addressed various preliminary issues raised by the parties. The court ruled that respondents’ renewed motion for summary judgment did not amount to an improper motion for reconsideration, as it was filed pursuant to the February 2024 order. The court also denied Renovato’s request for a continuance, finding that she “ha[d] not demonstrated any diligence in seeking the specific discovery sought [despite] . . .
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be[ing] acutely aware of the necessity of the depositions for at least eight months[.]”
Most important, the trial court ruled that it would disregard the corrections to Renovato’s deposition for the purposes of resolving the summary judgment motion. The court explained that, while Renovato “was permitted to change her deposition testimony pursuant to [Code of Civil Procedure, section] 2025.520, [she] cannot by so doing create a triable issue of fact in order to defeat a motion for summary judgment.” (Underlining omitted.)
As to the parties’ evidentiary objections, the trial court sustained one of Renovato’s objections and partially sustained another. It sustained five of respondents’ objections. The remainder of both parties’ objections were overruled.
Turning to the merits, the trial court found that respondents were entitled to summary judgment as to all of Renovato’s claims.
On August 12, 2024, the trial court entered judgment in favor of respondents.
Renovato timely appealed.
DISCUSSION
I. Preliminary Issues Renovato challenges several express and implied subsidiary rulings, namely: (1) whether respondents’ separate statement of facts complied with applicable statutory requirements; (2) the trial court’s rulings on the parties’ evidentiary objections; and (3) the denial of Renovato’s request for a continuance. We review these issues for abuse of discretion. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 67 [whether a “party failed to comply with
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the requirements for the separate statement is reviewed for abuse of discretion”]; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852 (Serri) [“According to the weight of authority, appellate courts ‘review the trial court’s evidentiary rulings on summary judgment for abuse of discretion’ ”]; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey) [“[W]e review the trial court’s denial . . . of a continuance [of a summary judgment hearing] for abuse of discretion”].)
Each of Renovato’s contentions are meritless. Respondents’
separate statement of facts complies with the applicable statute. (Code Civ. Proc., § 437c, subd. (b)(1) [the “supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed” and “[e]ach of the material facts stated shall be followed by a reference to the supporting evidence”].) Renovato’s contention that the separate statement “failed to set forth specific material facts as to each issue to be decided” is belied by the record. While the issue summaries in respondents’ separate statement incorporate by reference the facts set forth in the preceding enumerated list of material facts, that list “set[s] forth plainly and concisely all material facts that [respondents] contend[ed] [we]re undisputed[,] . . . . followed by a reference to the supporting evidence[,]” and thus complies with the applicable statutory requirements.1 (Code Civ. Proc., § 437c, subd. (b)(1).)
1 Renovato takes umbrage at the trial court’s criticism of her own separate statement of facts, which copied respondents’ method of incorporating by reference her listed material facts into her issue summaries. However, Renovato’s separate statement of facts is formatted differently; where respondents’ separate statement includes supporting evidence citations
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Even if the separate statements were defective, the summary judgment statute does not, as Renovato suggests, require the trial court to order the movant to submit compliant papers. (See Code Civ. Proc., § 437c, subd. (b)(1) [“The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion”] (italics added).)
Similarly, we find no merit in Renovato’s contention that the trial court “complete[ly] disregard[ed] . . . the Evidence Code” by overruling most of her objections to respondents’ evidence. The court sustained one of her objections and partially sustained another, expressly stating the ground for each ruling. Far from an abuse of discretion, this indicates that the court carefully considered each of Renovato’s objections. Moreover, Renovato’s broad arguments fail to identify error in specific evidentiary rulings, and thus are insufficient to facilitate appellate review of the more than 120 rulings to which she objects. (See City of Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 463 [“If a party contends that an evidentiary objection was improperly overruled by the trial court, the party must identify the specific objection, provide legal argument explaining why the trial court’s ruling
directly beneath each material fact listed, Renovato placed the majority of her supporting evidence citations beneath long lists of objections, often on separate pages from the facts she disputed. The trial court justifiably noted that this confusing layout, compounded by the fact that “none of [Renovato’s] contentions of material fact are presented in [her] memorandum of points and authorities[,]” “r[an] against the purpose of a separate statement to provide the [c]ourt a concise list of material facts and evidence upfront.”
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was in error, and support that argument with citation to pertinent legal authority”].)
Renovato does identify two of respondents’ objections which, she argues, were improperly sustained. Namely, she challenges the rulings that her declaration about her deposition (1) contained improper legal arguments, speculation, and a lack of personal knowledge to the extent that she characterized deposition questions as “confusing contention type legal questions” and said that the court reporter was having difficulty taking the deposition; and (2) was misleading, contradictory, lacked personal knowledge, and contained hearsay to the extent that it repeated the allegations in Renovato’s purported deposition corrections, made allegations about Quibilan’s thoughts, and repeated things she had heard Quibilan and Gage say. These rulings are eminently reasonable. (Serri, supra, 226 Cal.App.4th at p. 852 [the trial court abuses its discretion only if its order “ ‘exceeds the bounds of reason[]’ ”].) Moreover, Renovato makes no attempt to meet her burden to show that the exclusion of this evidence resulted in prejudice that would entitle her to a reversal of the summary judgment ruling. (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1538.)
Finally, the trial court did not abuse its discretion in denying Renovato’s request for a continuance. The summary judgment statute “mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion.” (Cooksey, supra, 123 Cal.App.4th at pp. 253–254; see also Code Civ. Proc., § 437c, subd. (h).) “[L]ack of diligence may be a ground for denying a request for a continuance of a summary judgment motion hearing . . . [as]
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[t]here must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented.” (Cooksey, supra, 123 Cal.App.4th at p. 257.)
Renovato first sought a continuance in her February 2024 opposition to respondents’ original summary judgment motion, alleging that she needed more time to pursue discovery because respondents stymied her initial attempts to schedule depositions and collect documentary evidence. She received the benefit of a five-month continuance. Yet, in that time, Renovato made no further attempts to complete the depositions and acquire the evidence she claimed she needed to defend against summary judgment. Under these circumstances, the trial court reasonably denied Renovato’s request for a further continuance due to lack of diligence. (Cooksey, supra, 123 Cal.App.4th at p. 257.) II. The Trial Court Properly Disregarded Renovato’s Purported Deposition Corrections By statute, a “deponent may change the form or the substance of the answer to a question” within 30 days after receiving notice that the deposition transcript is ready for review. (Code Civ. Proc., § 2025.520, subd. (b).)
However, substantive and material changes to damaging deposition testimony may be disregarded when evaluating a summary judgment motion. Our Supreme Court has long recognized that “admissions against interest have a very high credibility value . . . . especially . . . when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22 (D’Amico).) Therefore,
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“ ‘[w]here . . . there is a clear and unequivocal admission by the plaintiff, h[er]self, in h[er] deposition’ ” and the plaintiff contradicts that admission in a subsequent declaration, “ ‘we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.’ ” (Id. at p. 21; see also Tiffany Builders, LLC v. Delrahim (2023) 97 Cal.App.5th 536, 547 [“The sham declaration doctrine comes into play when a plaintiff makes a clear and unequivocal admission in a deposition but, in a later declaration, contradicts that admission. In this situation, the declaration’s previously contradicted assertion alone cannot establish a triable issue of fact.”].)
Taken together, these laws provide—as summarized by the trial court—that Renovato “was permitted to change her deposition testimony pursuant to [Code of Civil Procedure section] 2025.520, [but] [she] cannot by so doing create a triable issue of fact in order to defeat a motion for summary judgment.” (Underlining omitted.)
Renovato’s original deposition testimony was rife with damaging admissions, including that she had never been diagnosed with a disability, sought accommodations for a disability or familial obligations, or made complaints about Quibilan’s alleged harassment; she also admitted that respondents had never taken adverse actions against her. Her purported corrections directly contradicted those admissions. And her opposition to respondents’ summary judgment motion relied almost entirely on her corrected deposition testimony to assert triable issues of material fact.
Under these circumstances, the trial court reasonably disregarded the purported corrections. (See Jogani v. Jogani (2006) 141 Cal.App.4th 158, 177 [the D’Amico rule “says that a
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party cannot say one thing at a deposition only to reverse course when his deposition is used against him in a motion for summary judgment in the same litigation”]; Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 849–850 (Shapero) [where the plaintiff “took pages from her deposition, crossed out her original answers and supplanted with them answers more in keeping with her later recollection of events before submitting them to the trial court[,]” the court “properly rejected these emendations” at the summary judgment stage].)
Renovato raises several counterarguments, all of which are unavailing. She contends that because the purported corrections were timely filed per Code of Civil Procedure section 2025.520, the sham declaration doctrine does not apply. Renovato thus suggests that a deponent may make substantive, contradictory corrections to damaging deposition testimony without consequence, as long as the corrections are made within the 30- day period prescribed by statute. Not only is this contrary to case law (Shapero, supra, 191 Cal.App.3d at pp. 849–850), it is nonsensical. Depositions are important discovery tools because they enable litigants and attorneys to assess witness credibility and disposition, and to receive the benefit of unrehearsed answers to spontaneous questions. Renovato’s lengthy, contradictory “corrections” effectively replaced her deposition testimony with written discovery, which she had ample time to craft and review in the month following her deposition, after reviewing the motion for summary judgment. Allowing such corrections without limitation would not only give deponents an unfair advantage in summary judgment proceedings, but would also defeat the purpose of depositions.
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Renovato attempts to distinguish D’Amico and its progeny by drawing a distinction between corrected deposition testimony and subsequent sham declarations. But “[t]here is no reason to draw a distinction between an attempt to counter an admission by affidavit and an attempt to counter an admission by changing the content of an answer given by a party directly in the deposition[.]” (Gray v. Reeves (1977) 76 Cal.App.3d 567, 574.)
Renovato also argues that the trial court was precluded from applying the sham declaration doctrine to disregard her deposition corrections, citing the April 2024 order denying respondents’ motion to strike the corrections. Following this logic, she urges that respondents’ summary judgment motion amounted to an improper motion for reconsideration of the April 2024 order.
These arguments share the same flawed premise—namely, that the trial court’s summary judgment ruling conflicts with its prior April 2024 order. But there is no conflict. The April 2024 order explained that the sham declaration doctrine did not support respondents’ motion to strike Renovato’s admittedly “egregious” deposition corrections. The summary judgment ruling properly invoked the doctrine to disregard the purported corrections at the summary judgment stage. Read together, the two rulings consistently describe the remedies afforded by the sham declaration doctrine in the unique context of this case. When a summary judgment opponent proffers sham deposition corrections, the trial court does not strike the sham corrections from the record. Instead, it ignores them at the summary judgment stage.
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III. Respondents Are Entitled to Summary Judgment on the Merits Renovato concedes that consideration of her deposition corrections is “[t]he dispositive issue” of this appeal. Given the number and severity of damaging admissions made in Renovato’s original deposition, we agree. Nevertheless, we have independently reviewed the merits of her appeal. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz) [“On appeal after a [defendant’s] motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained”].)
Having reviewed the evidence, we agree that there are no triable issues as to the material facts required by Renovato’s claims. (Code Civ. Proc., § 437c, subd. (c); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 856 [a triable issue of material fact exists if the evidence and inferences therefrom would allow a reasonable juror to find the underlying fact in favor of the party opposing summary judgment].)
Renovato forfeited any argument as to the majority of her FEHA claims. Her appellate briefs make no effort to defend the portions of her discrimination and retaliation claims based on marital status, gender, reasonable accommodations, and the CFRA.2 (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [failure to discuss issue in opening brief results in forfeiture on appeal].)
2 For the same reason, Renovato forfeited any challenge regarding her whistleblower, fraudulent inducement, and CLRA claims.
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The remainder of Renovato’s discrimination and retaliation claims—based on disability or perceived disability—fail because she conceded that respondents took no adverse action against her during her employment. (Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 53, fn. 1 [disability discrimination requires showing that the plaintiff “was subjected to an adverse employment action because of [her] disability or perceived disability”], 55 [retaliation requires showing that the plaintiff “was subjected to an adverse employment action”].)
Renovato’s harassment claim falls short, as the evidence shows nothing beyond a few isolated (albeit offensive) comments made by Quibilan over a 12-year course of employment. (See Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 693 [“ ‘[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious)’ are not sufficient to create an actionable claim of harassment”].)
The failure of Renovato’s FEHA claims necessarily defeats her claim for wrongful termination in violation of public policy, because the latter is premised solely on respondents’ FEHA violations. Renovato argues that her wrongful termination claim goes beyond FEHA, as she also alleged violations of “ ‘the Labor Code, Cal[/]OSHA regulations, the California Constitution, and other criminal and common laws.’ ” These bodies of law are too broad to support a claim for wrongful termination in violation of public policy. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1257 [granting summary judgment because of the plaintiff’s “vague charge[s] of ‘Alcohol, Tobacco and Firearms law[]’ violations, largely unaccompanied by citations to specific statutory or constitutional provisions”].)
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Renovato’s IIED claim fails because respondents’ conduct, as a matter of law, does not rise to the level of “extreme and outrageous conduct” which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209–210; see also Gomon v. TRW, Inc. (1994) 28 Cal.App.4th 1161, 1172 [“Insults, indignities, annoyances, petty oppressions or other trivialities will not suffice”].)
Renovato’s breach of contract claims fail because undisputed evidence establishes that she was an at-will employee. (See Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 829 [an employee has no breach of contract claim where the employment contract specified at-will employment]; Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal.App.4th 1383, 1390 [same]; see also Guz, supra, 24 Cal.4th at p. 337 [“[W]here the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper”].)
Both of Renovato’s Labor Code claims fail. She conceded that she never suffered an adverse employment action, including “action[s] taken against [her] because of any leave of absence[.]” (Lab. Code, § 230.8 [prohibiting employers from “discharg[ing] or in any way discriminat[ing] against an employee who is a parent . . . for taking off up to 40 hours each year, for the purpose of [enumerated] child-related activities”].) And she admitted that she received her personnel records within 14 days of submitting a written request to Carter’s. (Lab. Code, § 1198.5, subd. (b)(1).)
Finally, Renovato’s unfair competition and punitive damages claims fail because they are derivative of her other defeated claims. (See Aleksick v. 7-Eleven, Inc. (2012)
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205 Cal.App.4th 1176, 1185 [“When a statutory claim fails, a derivative [unfair competition] claim also fails”]; Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 789, fn. 2 [“[T]here is no separate or independent cause of action for punitive damages”].)
In keeping with the rest of her appeal, Renovato’s final counterargument is meritless. She contends that reversal is compelled as to Carter’s, Inc., because respondents failed to prove that Carter’s Retail, Inc. was Renovato’s sole employer. Not so. Renovato’s claims are identical as to both corporate respondents. Assuming arguendo that Carter’s Inc. and Carter’s Retail, Inc. were Renovato’s joint employers, her claims as to Carter’s Inc. fail for the same reasons that they fail as to Carter’s Retail, Inc.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOORVITCH, J.
We concur:
LUI, P. J.
RICHARDSON, J.