Lee v. Harbor Distrib., LLC

• Decision Date: 28 February 2013
• Docket Number: B238872
• Parties: RONNIE LEE, Plaintiff and Appellant, v. HARBOR DISTRIBUTING, LLC et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

RONNIE LEE, Plaintiff and Appellant, v. HARBOR DISTRIBUTING, LLC et al., Defendants and Respondents.

B238872

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

Dated: February 28, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. BC450405)

APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa Sanchez-Gordon, Judge. Affirmed in part, reversed in part, and remanded.

Law Offices of David Peter Cwiklo, David Peter Cwiklo for Plaintiff and Appellant.

Munger, Tolles & Olson, Katherine M. Forster and Alissa Branham, for Defendants and Respondents.

INTRODUCTION

Plaintiff and appellant Ronnie Lee brought an action against his former employer Harbor Distributing, LLC (Harbor) and Harbor employees Dave Jackson, Dean Murata (Harbor's West Coast Facility Manager), Ana Davison (Harbor's Human Resources Manager), and Jim Hughes (Harbor's Safety Manager) (defendants) alleging various theories of wrongful termination in violation of public policy, defamation, and intentional infliction of emotional distress in connection with the termination of his employment. Defendants moved for summary judgment or, in the alternative, summary adjudication (summary judgment motion).¹ After giving Lee two opportunities to correct a perceived procedural defect in his memorandum of points and authorities in opposition to defendants' summary judgment motion, the trial court struck Lee's second amended memorandum of points and authorities and amended separate statement of disputed facts and granted defendants' motion. The trial court also sustained defendants' blanket objections to all of Lee's opposing evidence. Lee appeals from the judgment.² We affirm the grant of summary adjudication as to Lee's first and second wrongful termination in violation of public policy causes of action, parts of his third cause of action for wrongful termination in violation of public policy³, his defamation cause of action,and his intentional infliction of emotional distress cause of action. We reverse the grant of summary adjudication as to part of Lee's third cause of action and as to his fourth cause of action for wrongful termination in violation of public policy and remand the matter to the trial court.

BACKGROUND

Lee brought an action against defendants asserting four causes of action against Harbor for wrongful termination in violation of various alleged public policies and causes of action for defamation and intentional infliction of emotional distress against all defendants, and alleging the following facts. Lee was a 53-year-old African American truck driver who worked for Harbor, a beer distributor, for about 10 years. He was injured in the course of his employment resulting in a physical disability for which he filed a workers' compensation claim. Lee exercised his rights under the California Family Rights Act, Government Code section 12945.2 (CFRA) to take medical leave for the diagnosis and treatment of his injuries. Harbor "unlawfully perceived" that he was incapable of returning to work, did not engage in an interactive process to determine if he could return to work with a reasonable accommodation, and did not reasonably accommodate his physical disability. Harbor terminated Lee's employment in retaliation for Lee exercising his rights to file a workers' compensation claim and take CFRA leave, and in part due to Lee's age, race, and physical disability. Lee alleged that the individual defendants made defamatory statements about his job performance and intentionally inflicted emotional distress by their retaliatory and discriminatory conduct.

Defendants moved for summary judgment. In support of their motion, defendants filed a memorandum of points and authorities in which they supported factual assertions with citations directly to the evidence they submitted in support of their motion. Lee filed his opposition to the motion. In his memorandum of points and authorities in opposition to defendants' motion, Lee also cited directly to evidence. Defendants filed an objection to all of the evidence Lee submitted in opposition to their motion on the ground that such evidence was not properly authenticated and was hearsay.⁴

At the October 3, 2011, hearing on defendants' summary judgment motion, the trial court ruled that the parties' respective memoranda of points and authorities in connection with "this complex motion for summary adjudication, consisting of 25 separate issues," were defective because they "fail[ed] to reference the facts in the separate statement, citing to the underlying evidence instead." The trial court's order stated, "A memorandum of points and authorities should demonstrate how each fact is material to the pleadings and how it supports positions asserted. (Juge v. County of Sacramento (1993) 12 Cal.App. 4th 59, 67-68.) The Court is not requried [sic] to expend efforts to ascertain the relationships between stated facts, and the law. (Ibid.)" The trial court continued the hearing to October 18, 2011, stating that it was not inclined to address the motion on the merits and giving the parties the opportunity to "correct" their memoranda of points and authorities by removing all citations to the underlying evidence and replacing them with citations to the facts in their separate statements. The amended memoranda were to be filed five court days before the hearing. The trial court stated that no other documents were to be filed.

Defendants and Lee filed amended memoranda of points and authorities.⁵ At the October 18, 2011, hearing, the trial court found that defendants had corrected the defect in their memorandum of points and authorities, but Lee had not because he "did not remove the citations to underlying issues but did add citations to issues for adjudication to some of the evidence citations." The trial court continued the hearing to October 28, 2011, giving Lee one last opportunity to "correct" his memorandum of points and authorities. Lee was to file an amended memorandum of points and authorities that did "not contain citations to evidence or issues but [did] contain citations to facts in the separate statement of facts." The trial court advised Lee that if he did not correct and timely file his memorandum of points and authorities, it would grant defendants' motion based on his failure to file a memorandum of points and authorities. The trial court did not order Lee to not file any other documents.

Lee filed a second amended memorandum of points and authorities. He also filed an amended separate statement of disputed facts. At the October 28, 2011, hearing, the trial court struck Lee's amended separate statement because it was filed in violation of the trial court's order that no other documents were to be filed. The trial court also struck Lee's second amended memorandum of points and authorities—which fully complied with the trial court's order not to cite to the underlying evidence but to facts in the separate statement—because it was not properly "redone" as it cited to facts in the stricken amended separate statement rendering the "citations meaningless as the original separate statement [was] the only document the court [would] consider." The trial court stated that it had given Lee "an opportunity to correct procedural errors, not a do over of the opposition."

Lee's counsel explained that he needed to file an amended separate statement of disputed facts because there were facts cited in the amended memorandum of points and authorities that were not cited in the original separate statement of disputed facts. In preparing the second amended memorandum of points and authorities, Lee removedthose facts from the amended memorandum and put them in an amended separate statement. According to Lee's counsel, there were no new facts cited, everything he had filed since his original opposition to defendants' summary judgment motion was essentially the same, the only difference was formatting. The trial court disagreed that the only difference was formatting, but did not identify any other difference. Defendants' counsel stated that she had identified two pages of deposition transcript that she claimed Lee had not previously cited. Lee's counsel stated those pages had been cited in Lee's memorandum of points and authorities. The trial court granted defendants' summary judgment motion without a hearing on the merits of the motion. The trial court did not address defendants' objections to Lee's evidence.

Counsel for defendants prepared an order granting summary judgment that the trial court signed. In the order, the trial court restated its ruling striking Lee's second amended memorandum of points and authorities and amended separate statement of disputed facts, and found that there were no triable issues of material fact as to any of Lee's causes of action. The trial court by that prepared order also sustained defendants' objections to Lee's evidence.

DISCUSSION

I. The Trial Court Erred When It Ordered Lee To File Amended And Second Amended Memoranda Of Points And Authorities

Lee contends that the trial court erred when it ordered him to prepare amended and second amended memoranda of points and authorities and when it struck his second amended memorandum of points and authorities and amended separate statement of disputed facts. The trial court erred because it imposed on Lee a procedural requirement in responding to defendants' summary judgment motion that was not contained in Code of Civil Procedure section 437c (section 437c) or California Rules of Court, rules 3.1113 and 3.1350⁶.

A. Standard of Review

"[G]ranting a motion for summary judgment based...