Pang v. Beverly Hospital, Inc.

• Decision Date: 10 April 2000
• Citation: 79 Cal.App.4th 986,94 Cal.Rptr.2d 643
• Parties: (Cal.App. 2 Dist. 2000) MARJORIE PANG, Plaintiff and Appellant, v. BEVERLY HOSPITAL, INC., Defendant and Respondent. B127999 Filed
• Court: California Court of Appeals Court of Appeals

94 Cal.Rptr.2d 643 (Cal.App. 2 Dist. 2000)

MARJORIE PANG, Plaintiff and Appellant, v. BEVERLY HOSPITAL, INC., Defendant and Respondent.

B127999

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE

Filed 4/10/00

APPEAL from the judgment of the Los Angeles Superior Court. Reginald Dunn, Judge. Affirmed.

(Super. Ct. No. BC171878)

Gronemeier & Associates, P.C., and Dale L. Gronemeier for Plaintiff and Appellant.

Rushfeldt, Shelley & Drake LLP, and Linda C. Miller Savitt, Christine T. Hoeffner, and Dawn Cushman for Defendant and Respondent.

CERTIFIED FOR PUBLICATION

GODOY PEREZ, J.

Plaintiff Marjorie Pang appeals from the judgment of dismissal entered after the court granted its own motion for judgment on the pleadings on her claim for violation of her right to take a family care leave. (Gov. Code, 12945.2.) For the reasons set forth below, we affirm the judgment.

PROCEDURAL HISTORY

Plaintiff and appellant Marjorie Pang sued her employer, defendant and respondent Beverly Hospital, Inc. (the Hospital), after the Hospital fired Pang from her job as a physical therapist. Pang's operative first amended complaint alleged three causes of action: (1) she was fired in violation of the Moore-Brown-Roberti Family Rights Act (Gov. Code, 12945.1, 12945.2, hereafter CalFRA) for taking time off work to care for her mother; (2) she was fired because of her own medical condition or medical disability, in violation of the Fair Employment and Housing Act (Gov. Code, 12940, subd. (a)); and (3) she was fired in violation of public policy.

In July 1998 Pang brought a motion for summary adjudication of her CalFRA cause of action. The moving and opposing papers were supported by documentary evidence, witness declarations, and deposition testimony.

At the start of the August 21, 1998, hearing on Pang's summary adjudication motion, the court issued a written tentative decision denying the motion because Pang failed to properly refer to or argue the facts set forth in her separate statement of undisputed facts. (Code Civ. Proc., 437c, subd. (b).) The court, on its own motion, deemed the matter a motion for judgment on the pleadings. (Code Civ. Proc., 438, subd. (b)(2).)

The tentative decision granted the court's motion for judgment on the pleadings (MJOP) because the purpose of Pang's leave-to help her elderly mother move from one home to another-did not qualify as leave to care for a parent under CalFRA. After hearing argument from the parties, the court granted the MJOP on that ground and adopted the tentative decision as its final decision. Pang dismissed her two remaining causes of action without prejudice on September 17, 1998, and the court entered judgment for the Hospital on September 24, 1998.¹

STANDARD OF REVIEW

An MJOP is equivalent to a demurrer and is governed by the same standard of review. All material facts which were properly pleaded are deemed true, but not contentions, deductions, or conclusions of fact or law. If leave to amend was not granted, we determine whether the complaint states a cause of action and whether the defect can reasonably be cured by amendment. If the pleading defect can be cured, the trial court committed reversible error. If not, we affirm. The plaintiff bears the burden of proof on this issue. Finally, the judgment will be affirmed if it is proper on any grounds raised in the motion even if the court did not rely on those grounds. (Baughman v. State of California (1995) 38 Cal.App.4th 182, 187.)

In addition to the facts pleaded, we may consider matters which may be judicially noticed, including a party's admissions or concessions which can not reasonably be controverted. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548-549.) At the request of both parties, we will do so here as to certain evidence placed before the trial court by the summary adjudication motion. Specifically, we will judicially notice the declarations of Pang and her sister, excerpts of Pang's deposition testimony, and her separate statement of undisputed fact, to the extent they bear on her need for family leave.² As our discussion below makes clear, these items constitute judicial admissions and concessions which are fatal to Pang's CalFRA claim.

FACTS

Pang's complaint alleged that her mother, who lives in New York, suffered from numerous ailments, including narcolepsy,³ cataplexy,⁴ high blood pressure, arthritis, circulatory problems, and a heart condition. The mother suffered a stroke some years before, leaving her with balance problems. She also had neck pain and immobility of one arm due to a reverse curvature of her neckbones. The mother was periodically incapacitated by these conditions for more than three days at a time and was under the continuing supervision of a health care provider as a result. In late May 1996 Pang notified the Hospital she would soon have to go to the state of New York to help her mother move from one home to another. On June 4, 1996, Pang told the Hospital she needed to leave for New York that day. The Hospital fired Pang, claiming she abandoned her job.

Pang stated in her declaration that "the encroachments of age and medical problems" made it "increasingly difficult" for her mother to continue living in her two-story home. Pang's mother rented an apartment in May 1996, put her home up for sale and hired a moving company to take her belongings from her house to the new apartment. Pang handled many of her mother's business affairs and her mother asked that Pang help with packing and moving the mother's personal belongings because she was not able to do so herself. Pang spoke with her mother on June 3, 1996, and learned that the movers had just told her they were available only on June 7, 1996. "[W]hen I went to assist her in June 1996, I did assist her with matters such as moving and packing belongings which she was physically unable to do herself due to her medical conditions."

Jean Arnold, Pang's sister, confirmed their mother's various medical conditions. Arnold stated in her declaration that she lived in Florida. Her mother lived in a nearby trailer six months out of the year. During these periods, Arnold cared for and assisted her mother with her daily living activities. When her mother became incapacitated by one or more of her ailments, she was unable to leave the house without assistance. Her mother was unsteady on her feet and in February 1996 fell and injured herself, leaving her unable to care for herself for one week. When Arnold cared for her mother, she had her "under twenty-four hour watch. I would check on her in person and over the phone regularly several times a day; if she did not answer the phone because she was unable to get up to answer it, I would go see her immediately." Due to personal obligations, Arnold was unable to help her mother move in June 1996 and believed her mother was unable to move to her new apartment without help.

Pang's deposition testimony cast the circumstances surrounding her mother's move in a different light, however. Pang testified that her mother, then 81, was moving because "she was in failing health and decided to sell her home." She was having difficulty because of weakness and balance problems, used a walker, and was having trouble getting up and down the stairs of her two story home. She also had a lot of yard work which was difficult for her to do. "[S]he just found the house was getting to be too much for her to handle."

Pang admitted stating in a letter to the Hospital that she was the trustee of the trust which owned her mother's home and that she was the seller and had to sign the paperwork. She wrote this to show it was her responsibility to help her mother and denied going to New York in order to sign any documents.

Pang testified that her mother split her time living in Florida and New York. She drove a car, lived by herself, could bathe, use the bathroom, get out of bed, cook and get dressed by herself. Her mother never hired a nurse to care for her and had never lived in a rest home or other type of health care facility.

Pang testified that her mother hired movers and had a friend, Debbie, who was helping her pack and make phone calls. The movers notified Pang's mother on June 3 that they were available on June 7 but would not be available again until July 5. The mother told the movers that June 7 was acceptable. There was no reason why Pang's mother could not have waited another month. Instead, it was the mother's decision to move on June 7 and it was "[j]ust her choice." There was an offer made on the house as of June 14, 1996.

When Pang was in New York during June 1996, she and Debbie helped Pang's mother gather the mother's belongings for the move. Debbie did not do much because Pang knew where her mother would want her furniture placed and Pang made those decisions. Asked to specify what she did while there, Pang testified, "Oh, basically just helping my mother, we had a lot of cleaning out to do." This included gathering and packing her belongings. In the evening, after finishing discarding unwanted items and packing the rest, Pang went to bed. Pang's mother was able to think coherently and assisted in selecting what to keep and what to discard. Pang's sister arrived the next day to help. The sister, who lived in Canada part of the time, was unable to come the day before because she and her husband had unspecified "duties" to perform.

Pang's separate statement included three undisputed facts concerning the reason for Pang's trip to New York which we deem relevant. The first stated, "In June 1996, Mrs. Pang was needed to help her mother move because her mother could not move on her own due to her medical conditions and because her sister was not available to so assist their mother." The second stated, "The encroachments of [the mother's] medical conditions were making it increasingly difficult for [the mother] to continue to live where she was...