Said v. Regents of the Univ. of Cal.
| Decision Date | 10 March 2017 |
| Docket Number | G049994 |
| Court | California Court of Appeals |
| Parties | SHARY SAID, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAppeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed.
Shary Said, in pro. per., for Plaintiff and Appellant.
McCune & Harber, Stephen M. Harber and Jessica O. Gillette for Defendants and Respondents.
Shary Said appeals from the judgment1 in favor of the Regents of the University of California (the Regents) and Terry Belmont (collectively referred to as defendants). Despite identifying herself as a volunteer for the University of California, Irvine (UCI), Medical Center (Medical Center), she alleged numerous causes of action (COAs) based on assertions she was an employee. She also stated claims for breach of contract, defamation, and discrimination, among others. Many of the COAs were dismissed on demurrer, and the others were decided against Said on summary judgment.
Said challenges the rulings on the demurrers and summary judgment motions, as well as those on discovery issues, motions to continue the hearing on the motions for summary judgment, and ex parte applications. Having considered all of the issues raised by Said in her opening brief, we conclude no error occurred and affirm the judgment. We decline to address any contentions made for the first time in her reply brief or that conflict with her arguments asserted in her opening brief, as we consider them forfeited. (See Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1426.)
On the evening of December 5, 2010, Said was volunteering in the emergency department of the Medical Center when patients filled all three of the critical trauma bays. Joy Po, the Medical Center's emergency department nurse educator,determined there were too many people present and told all volunteers including Said to leave. Said refused, stating the volunteer guidelines allowed her to stay.
Two days later, nurse Marla Gain dismissed Said as an emergency room volunteer due to her defiance of Po's order. Gain suggested Said talk to the volunteer services manager, Valerie Wilcox, to see if a volunteer position was available in another department. Wilcox met with Said that day and told her that she had "exhibited unprofessional and insubordinate conduct." Said disagreed and declined Wilcox's offers of volunteer positions in other areas of the hospital.
On December 16, Said received an e-mail from Douglas Skarecky, a staff member in the urology department, where she had a prior unpaid appointment as a junior specialist. He forwarded an e-mail from emergency services instructing him to contact security if Said did not leave his department when requested and told her "this is not a supportive e[-]mail of."
The next day, Said e-mailed Wilcox for permission to volunteer in another department as Wilcox had previously offered. Said sent another e-mail to her the day after that, apologizing for "bugging [Wilcox] with all these e-mails" and acknowledging she should have left the room when asked to do so and then bring any concerns to the volunteer office afterwards. That same day, Said e-mailed Wilcox that she was "also willing to apologize to anyone you think I should apologize to." On December 19, Said e-mailed Wilcox again, stating she understood the rules and nurses should be obeyed.
Several days later, Said received a letter on behalf of a doctor stating that after reviewing her "information and discuss[ing her] dismissal from [v]olunteer [s]ervices at [the] Medical Center," he could not approve her "to perform clinical observation in [his] oncology practice nor have [her] volunteer in the Young Adult Program." Also in December, Said was terminated from her appointment as an unpaid junior specialist with the department of surgery at UCI, which began September 20, 2010, and had been scheduled to end on June 30, 2011.
On January 22, 2011, Wilcox received an e-mail from Said that she Due to Said's "numerous e-mails, phone calls, and visits," Wilcox believed Said "was engaging in stalking behavior" and became concerned about her own safety. When Wilcox filed a report with UCI security, she was told "Said was already on security alert following complaints from other departments regarding [Said's] persistence to continue volunteering despite her dismissal."
Belmont, the CEO of the Medical Ccnter, was not involved with Said's volunteer position in the emergency department. His only contact with Said was when she asked him for help in redressing the matter. After looking into the matter, Belmont e-mailed Said that he had decided not to intervene. Said believed Belmont was part of a conspiracy to discriminate against her because she is Middle Eastern and has a Muslim last name. This contention is based on Belmont's position as the CEO of the Medical Center and her belief that "[n]othing happens without his knowledge and permission."
Said initiated this action in December 2011. Following several demurrers and amendments to the complaint, the FAC became the operative complaint. It alleged 17 COAs: (1) defamation and false light; (2) discrimination and wrongful termination; (3) breach of written contract; (4) retaliation (Lab. Code, § 1102.5); (5) retaliation (Gov. Code, § 12940 et seq.); (6) harassment; (7) failure to prevent discrimination and harassment; (8) intentional interference with contractual relations; (9) intentional interference with prospective economic advantage; (10) violation of the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.; Whistleblower Act); (11) wage and hour: failure to reimburse employees for all necessary expenditures or losses incurred; (12) wage and hour: failure to pay minimum wages and expenses; (13) wage and hour: failure to timely pay compensation due and owing to employees, including those who are terminated or resigned; (14) wage and hour: failure to comply with itemized employee wage statement provisions; (15) unfair business practices;(16) violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.; Unruh Act); and (17) violation of Civil Code section 51.5.
Following several demurrers and dismissals, four COAs remained against defendants: defamation and false light, violation of the Whistleblower Act, violation of the Unruh Act, and violation of Civil Code section 51.5. Four additional COAs continued against Belmont individually: breach of written contract, interference with contractual relations, intentional interference with prospective economic advantage, and unfair business practices. Defendants separately moved for summary judgment or alternatively, summary adjudication of issues.
In June 2013, defendants sought a protective order to preclude Said from continuously contacting the Regents' employees and seeking to interview them without the presence of counsel. Said opposed the application but the trial court granted the protective order on June 3, 2013.
On September 5, 2013, this court issued a writ of mandate directing the trial court to set aside and vacate its June 3, 2013, order granting the protective order and to enter a new and different order denying the application for protective order or to show cause before this court. The trial court complied and reset the trial date to April 21, 2014, and the hearing on defendants' summary judgment motions to March 25, 2014.
In January 2014, Said moved to compel the deposition of the Regents' persons most knowledgeable (PMKs). The court denied the motion on January 31. Within the next week, Said filed ex parte applications to compel the depositions of the PMKs and individual witnesses, as well as to continue the summary judgment motions. The court denied the applications in early February. Said then applied ex parte for relief under Code of Civil Procedure section 473, subdivision (b),3 and for an order shorteningtime for defendants to serve responses to her additional special interrogatories. The court denied those applications as well.
In March 2014, Said filed ex parte applications renewing her motion to continue the summary judgment hearing and to compel the deposition of a witness. Again, the court denied the applications. Said thereafter filed her oppositions to defendants' summary judgment motions.
Ultimately, the court granted summary judgment for defendants. On appeal, Said contests all of the above rulings, as well the court's orders sustaining demurrers to the SAC, TAC, and FAC.
Said contends the court erred in granting summary judgment. It did not..
Under Code of Civil Procedure section 437c(c), "summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law." A defendant moving for summary judgment has the burden of showing that "one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c(p)(2).)
A defendant may carry its initial burden by "present[ing] evidence that would require . . . a trier of fact not to find any underlying material fact more likely than not [or] . . . simply point out . . . the plaintiff does not possess, and cannot...
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