Miller v. Danaher Corp.

• Decision Date: 09 November 2015
• Docket Number: H040128
• Court: California Court of Appeals Court of Appeals
• Parties: SELINE MILLER, Plaintiff and Appellant, v. DANAHER CORPORATION et al., Defendants and Respondents.

SELINE MILLER, Plaintiff and Appellant, v. DANAHER CORPORATION et al., Defendants and Respondents.

H040128

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

November 9, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. 1-11-CV213390)

Plaintiff Seline Miller appeals from the judgment following the granting of summary judgment in favor of defendants Danaher Corporation (Danaher) and Molecular Devices, LLC (MD), a subsidiary. (See Code Civ. Proc., § 437c.)¹ Miller, a former employee of MD, sued those companies for damages for wrongful retaliation in violation of public policy (first cause of action), wrongful termination in violation of public policy (second cause of action), and violation of Government Code section 12945.2 (third cause of action). Government Code section 12945.2 may be cited as the Moore-Brown-Roberti Family Rights Act (Gov. Code, § 12945.1) but it is commonly referred to as the California Family Rights Act (CFRA).² (See Cal. Code Regs., tit. 2, § 11087, subd. (b).)

The trial court granted MD's motion for summary judgment, in which Danaher sought to join. The court found defendants were entitled to summary judgment because MD's "adverse employment decision was reached no later than June 2011" and the only alleged protected activities occurred later and, consequently, there was no causal link between her alleged protected activity and the adverse employment decision.

Miller maintains that a trier of fact could reasonably find that the proffered reason of deficient performance was "fabricated and pretextual"³ based on the evidence and "multiple disputed issues of material fact" exist. Defendants assert that the trial court correctly concluded that there is no triable issue as to causation. We conclude that the evidence adduced on summary judgment raises triable issues of material fact as to causation, namely (1) whether the final decision to terminate Miller on December 13, 2011 was made after Miller's December 12, 2011 e-mail expressly invoking the CFRA and (2) whether Miller's attempt to exercise CFRA/FMLA rights was a substantial motivating reason for her termination on December 13, 2011.

In addition, the trial court did not consider Danaher's separate motion for summary judgment, finding it moot. Danaher brought its motion on the ground that it was not Miller's employer. Danaher's motion is not moot and the trial court must rule on it.

Accordingly, we reverse and remand for further proceedings.

IProcedural History

On November 17, 2011, plaintiff filed a complaint for wrongful retaliation. On December 15, 2011, defendants filed their answer to the complaint.

On July 5, 2012, Miller filed her first amended complaint. On July 18, 2012, defendants filed their answer to the first amended complaint.

Late in February 2013, MD filed its motion for summary judgment, or in the alternative summary adjudication, and Danaher filed its motion for summary judgment on the ground that Miller could not establish that Danaher was her employer. The same attorneys represented both defendants and signed the notices of motion. MD's notice of motion and Danaher's notice of motion stated: "Danaher Corporation—the parent company of Molecular Devices, LLC and also a named Defendant in this action—has filed a separate motion for summary judgment asserting that it was not the employer of Plaintiff. If its separate motion is not granted, Danaher Corporation hereby joins in Molecular Devices' Motion for Summary Judgment/Adjudication."⁴ The hearings on the motions were set for May 9, 2013.

On April 8, 2013, plaintiff filed an ex parte application for an order shortening time for hearing on a motion for an order compelling defendants to produce persons most qualified (PMQ) for deposition. On April 8, 2013, the trial court granted the application.

On April 12, 2013, plaintiff filed a motion to compel defendants to produce their PMQ's for deposition. In March of 2013, Miller had served 10 separate notices of deposition of MD's PMQ on various topics. One of the notices sought to depose MD's PMQ on the topic of complaints received regarding Miller, her work, or her errors from "any source" during December 1, 2009 through December 13, 2011 and requested production of documents pertaining to complaints regarding Miller. After a hearing on April 19, 2013, the matter was taken under submission.⁵

On April 25, 2013, Miller requested a continuance to permit her to obtain "essential evidence."

On May 9, 2013, the court held a hearing on defendants' motions for summary judgment.

On May 23, 2013, the trial court denied Miller's request for a continuance. It granted MD's motion for summary judgment. It denied as moot Danaher's separate motion for summary judgment and Miller's request for judicial notice submitted with her opposition to that motion.

IIMD's Motion for Summary Judgment or Summary Adjudication

A. Miller's Request for Continuance

Plaintiff requested a continuance under former section 437c, subdivision (h), due to defendants' alleged delay or failure to promptly produce requested discovery. The court deemed the request to be discretionary and denied it. The court explained that"[t]he declaration by Counsel Eric Kastner does not satisfy the requirements for a mandatory continuance under [section] 437c(h) and also fails to show good cause for a discretionary continuance."

At the time of the court's ruling on the request, former section 437c, subdivision (h), provided in pertinent part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just." (Stats. 2011, ch. 419, § 3, pp. 4223-4224 [former § 437c, subd. (h)]; see § 437c, subd. (h).)

"An opposing party's declaration in support of a motion to continue the summary judgment hearing should show the following: (1) 'Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion'; (2) 'The specific reasons why such evidence cannot be presented at the present time'; (3) 'An estimate of the time necessary to obtain such evidence'; and (4) 'The specific steps or procedures the opposing party intends to utilize to obtain such evidence.' (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group) ¶ 10:207.15.)" (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 (Johnson).)

" 'Code of Civil Procedure section 437c, subdivision (h) requires more than a simple recital that "facts essential to justify opposition may exist." ' (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715.) 'The statute cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist. The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.' (Id. at pp. 715-716.)" (Johnson, supra, 205 Cal.App.4th at p. 532.)

" 'When a party makes a good faith showing by affidavit demonstrating that a continuance is necessary to obtain essential facts to oppose a motion for summary judgment, the trial court must grant the continuance request. [Citation.] "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under [Code of Civil Procedure] section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court's denial of appellant's request for a continuance for abuse of discretion." ' (Park v. First American Title Co. (2011) 201 Cal.App.4th 1418, 1427.)" (Johnson, supra, 205 Cal.App.4th at p. 532.)

On appeal, Miller maintains that the continuance was necessary to take the depositions of MD's PMQ's because the declarations of Albert Acevedo, MD's Vice President of Finance, and Johann Noor Mohamed, MD's Global Controller, were too vague and identifying the complaints against Miller and assessing their gravity was "essential to flesh out Miller's opposition to summary judgment." Miller has deposed both Acevedo and Mohamed who were her superiors and the alleged decision makers. The declaration in support of a continuance did not demonstrate that complaints about her received by persons other than Acevedo and Mohamed were essential to opposing the motion. The declaration filed in support of her request for a continuance does not satisfy section 437c, subdivision (h), since it does not show that "facts essential to justify opposition may exist but cannot, for reasons stated, then be presented." (§ 437c, subd. (h), italics added.) In the absence of a mandatory right to a continuance, "we review the trial court's denial of appellant's request for a continuance for abuse of discretion. [Citation.]" (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)

"[D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]" (People v. Beames (2007) 40 Cal.4th 907, 920.) The party challenging a discretionary ruling on a request for a continuance bearsthe burden of establishing that the court abused its discretion. (Ibid.) Miller fails to demonstrate that the trial court abused...