MILLER, J.
In a second amended complaint, plaintiff and appellant Valerie Whitaker (Employee) sued her former employer, defendant and respondent State of California Department of Food and Agriculture 46th District Agricultural Association (CDFA) and two people who work for CDFA. Employee brought 12 causes of action primarily related to alleged discrimination. The trial court sustained a demurrer, without leave to amend, on two of the causes of action (Code Civ. Proc., § 430.10) and granted summary judgment on 10 of the causes of action (Code Civ. Proc., § 437c). Employee raises 17 issues on appeal. We modify the award of costs, but otherwise affirm the judgment.
The facts in this subsection are taken from Employee's second amended complaint (SAC). Employee worked as an office clerk for CDFA. Employee began working for CDFA in June 2012. Employee is a white female. Employee was 42 years old in 2012.
At some point between June and September 2012, Employee suffered paralysis causing Employee to be disabled. Employee's physician wrote her a note thereby giving Employee a medical or disability leave of absence from work. When Employee later returned to work she did not have any medical restrictions, but CDFA did not give her a 40-hour schedule. CDFA explained that Employee was not being scheduled for full time work because Employee would be replaced with younger, bilingual, Latina office clerks. CDFA said Employee was not qualified for the office clerk position because Employee was white and did not speak Spanish. Employee explained that she was not fluent in Spanish, but did "have the ability to speak and understand a sufficient amount of Spanish."
CDFA "internally terminated" Employee's employment. Employee was not informed of the termination. CDFA told Employee it would contact her "when work was available." CDFA did not contact Employee.
Employee applied for work at other employers. A prospective employer did not consider Employee for a job due to a reference provided by CDFA's District Accountant (the Accountant). "In late May 2013," Employee obtained a copy of the written reference. The reference was dated April 25, 2013. The reference reflected (1) Employee had been fired on September 28, 2012 "`due to attitude'"; (2) after being fired, Employee sent threatening letters to CDFA employees; (3) Employee was not eligible for rehire due to a restraining order protecting CDFA employees; (4) Employee was often absent from work; (5) Employee was not dependable; and (6) Employee followed instructions poorly.
On May 31, 2013, Employee contacted the CDFA district director (the Director) and complained about the reference. The Director said the reference would not be removed from Employee's personnel file but "the matter would be kept `confidential.'" The Director told Employee she would not be given future employment with CDFA.
On November 11, 2013, Employee filed a complaint against CDFA with the California Department of Fair Employment and Housing (DFEH). Employee requested an immediate right to sue notice, and therefore DFEH issued the right to sue notice and took no further action on the complaint. Also on November 11, Employee filed a claim with the California Government Claims Board. Employee's claim was rejected on December 12. Employee's original complaint was filed at the trial court on March 6, 2014.
In Employee's SAC, she brought 12 causes of action: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) wrongful termination; (4) "[v]iolation of the California Constitution"; (5) age discrimination; (6) discrimination based upon color; (7) race discrimination; (8) disability discrimination; (9) discrimination based upon a perceived disability; (10) failure to provide accommodations; (11) defamation and libel; and (12) unfair business practices (Bus. & Prof. Code, § 17200).
The trial court, in particular Judge Waters, sustained CDFA's demurrer, without leave to amend, as to the breach of contract and breach of implied covenant causes of action. The trial court concluded Employee's government tort claim form did not include facts related to the breach of contract and breach of implied covenant causes of action, and therefore, Employee could not bring such actions in the trial court.
The trial court, specifically Judge Molloy, granted summary judgment on the remaining 10 causes of action. The trial court found Employee failed to timely file her government tort claim form, failed to timely file her administrative complaint with the DFEH, and the CDFA was immune from liability for alleged unfair business practices (Bus. & Prof. Code, § 17200) cause of action. The trial court, in particular Judge Molloy, ordered CDFA was entitled to collect $4,322.15 in costs from Employee.
Employee contends (1) CDFA failed to file and serve a notice of motion for summary judgment; and (2) CDFA failed to give notice of the relief they were seeking in their notice of motion for summary judgment and therefore the trial court lacked jurisdiction to consider the motion.
As to filing, the record reflects that on April 1, 2015, CDFA filed notice of its motion for summary judgment. The document is entitled "Notice of Motion for Summary Judgment or, alternatively, Summary Adjudication of issues." (All caps. omitted.) It gives a hearing date of June 25. The document is file-stamped. The register of actions for April 1, 2015, reflects the motion for summary judgment was filed that day; it does not separately list the notice of motion. In regard to service, a proof of service is attached to the notice. It reflects the document was served upon Employee's attorneys via first class mail on March 31, 2015. Employee filed an opposition to the motion on July 24.
Because (1) the notice of motion is file stamped, (2) the register of actions reflects the motion was filed the same day as the notice's file stamp date, and (3) Employee responded to the motion, we conclude notice was given. Additionally, because the proof of service reflects employee's attorneys were served with the notice, we conclude service occurred.
Next, we turn to the issue of the contents of the notice. California Rules of Court rule 3.1350(b) provides, "If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts."
In the SAC, Employee sought general damages, special damages, compensatory damages, punitive damages, and exemplary damages. Employee did not list any specific amounts; rather, she requested damages be awarded according to proof.
CDFA's notice of motion did not identify Employee's claims for damages. The notice reflected CDFA would be moving "for an order granting summary judgment in its favor and against plaintiff, Valerie Whitaker, as to the entire action. . . . Alternatively, the defendants will move for an order granting summary adjudication of each and every cause of action asserted in plaintiff's Second Amended Complaint." The trial court granted CDFA's motion for summary judgment.
The trial court has discretion to excuse non-compliance with California Rules of Court, rule 3.1350. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.) We examine the record to determine if the trial court abused its discretion. (Ibid.)
Because the trial court granted CDFA's motion for summary judgment, it could reasonably excuse the failure to comply with the procedural rules for notice of summary adjudication. (See Truong v. Glasser, supra, 181 Cal.App.4th at p. 118.) Because CDFA requested, and the trial court granted, summary judgment, thus disposing of all of Employee's causes of action, a specific listing of causes of action and damages being attacked was unnecessary. Such a list would be helpful for summary adjudication; however, this was a summary judgment case. Because CDFA sought disposal of all the causes of action, and the trial court granted that motion, the trial court reasonably excused the failure to include Employee's claims for damages in the notice of motion. In sum, the trial court did not err.
Employee contends CDFA "did not provide the trial court with undisputed material facts, [so] they were not entitled to judgment as a matter of law." CDFA's separate statement of undisputed material facts is included in the record and was filed on April 1, 2015. Accordingly, we are not persuaded that CDFA failed to provide a separate statement of undisputed facts.
Employee contends CDFA's "separate statement failed to set forth undisputed facts specifically related to the allegations of the Complaint, or any legal theory set forth therein." Employee provides no analysis of this issue. Employee fails to explain why the facts are unrelated to the SAC. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Employee's failure to provide a legal argument forfeits the issue on appeal. (Los Angeles Unified School Dist. v. Casasola (2010) 187 Cal.App.4th 189, 212 (Casasola); People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley).)
Employee contends CDFA relied upon non-credible and inadmissible evidence in support of its motion. Employee contends four declarations submitted by CDFA were "conclusory, filled with hearsay and double hearsay, and inadmissible." Employee further contends CDFA failed to properly authenticate its "documentary evidence." Employee contends that due to this problematic evidence, the burden of proof never shifted to Employee.
Employee's contention lacks legal analysis. Employee needs to explain what portion of which declaration is conclusory, what portion of which declaration is hearsay, and on what basis the declaration is inadmissible and what declaration or portion thereof is inadmissible. Employee then needs to explain what objections were made in the trial court and why the trial court allegedly erred in ruling on those objections. Because Employee fails to support her contention with legal analysis, we deem it forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Casasola, supra, 187 Cal.App.4th at p. 212; Stanley, supra, 10 Cal.4th at p. 793.)
Employee contends she disputed the facts presented by CDFA and therefore the trial court erred by granting summary judgment.
We apply the de novo standard of review. (County of Santa Clara v. Atlantic Richfield Co. (Santa Clara) (2006) 137 Cal.App.4th 292, 316.)
"A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (§ 437c, subd. (p)(2).)
Employee asserts, "The evidence presented by [Employee] placed all facts stated by [CDFA] in dispute, and clearly established triable issues therewith." Employee fails to explain how the evidence created triable issues of fact. Employee does not "set forth the specific facts" and explain how her evidence created a triable issue of fact in relation to CDFA's evidence, and to what elements of the causes of action she is referring. (§ 437c, subd. (p)(2).) Due to Employee's failure to support her assertion with reasoned, legal analysis, we deem the issue to be forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Casasola, supra, 187 Cal.App.4th at p. 212;Stanley, supra, 10 Cal.4th at p. 793.)
Employee contends the trial court erred by finding her defamation claim, which concerned a reference letter, was time-barred.
We apply the de novo standard of review. (Santa Clara, supra, 137 Cal.App.4th at p. 316.) "`While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.'" (Ibid.)
A defamation cause of action accrues "when the defendant communicates the defamatory statement to a person other than the person being defamed." (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247.) A government tort claim must be presented "not later than six months after the accrual of the cause of action." (Gov. Code, § 911.2, subd. (a); see also Shively, at p. 1247.) The statute of limitations may be tolled until a plaintiff is aware of her injury and its cause. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931.) When relying upon the delayed discovery rule, the plaintiff bears the burden of establishing the discovery could not have been made earlier if reasonable diligence had been used. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 833.)
The written reference is dated April 25, 2013. Employee filed her government tort claim on November 11, 2013. The six-month statute of limitations expired in October 2013.
In Employee's SAC and declaration she does not identify the date on which she learned of the defamatory statement. Employee writes that she learned of the April 25, 2013 statement "[w]hen applying for other work." Employee obtained a copy of the statement on May 31. Employee does not explain what happened between learning of the statement and obtaining a copy of the statement. Because Employee failed to establish exactly when she learned of the statement, why she did not obtain a copy of the statement prior to May 31, and why reasonable diligence would not have permitted her to obtain a copy of the statement prior to May 31, she has not established that the delayed discovery rule is applicable. Accordingly, the April 25, 2013 date remains the triggering date for the statute of limitations. As a result, Employee exceeded the statute of limitation, and the trial court did not err.
Employee contends CDFA forfeited the argument that Employee's claim was untimely. When a government tort claim is untimely, the body rejecting the claim has 45 days to provide the claimant written notice that the claim is untimely. (Gov. Code, § 911.3, subd. (a).) If notice is not given, then any defense concerning the statute of limitations is forfeited. (§ 911.3, subd. (b).)
Employee contends CDFA failed to give her notice that her claim was untimely and thus has forfeited the defense. In support of her argument, Employee cites to her memorandum of points and authorities in opposition to the motion for summary judgment. "Citing points and authorities filed in the trial court is not appropriate support for factual assertions in a brief." (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590.) In other words, Employee cannot rely on her points and authorities to prove the rejection letter omitted the issue of untimeliness. Because Employee bases her argument on her points and authorities, rather than the December 12 rejection letter, she has not shown that CDFA forfeited the issue of untimeliness.
At oral argument in this court, Employee asserted a deposition transcript was lodged as an exhibit at the trial court, and attached to that transcript was a copy of the rejection letter. Employee orally requested permission to submit an amended appendix that includes the transcript and attached letter. Employee relied on California Rules of Court, rule 8.124(b)(4), which provides, "All exhibits admitted in evidence, refused, or lodged are deemed part of the record, whether or not the appendix contains copies of them." Employee contends the letter makes no mention of her claim being untimely.
For the sake of judicial efficiency, we will assume the rejection letter is attached to a deposition transcript and the transcript was lodged as an exhibit at the trial court thus making the letter part of the record on appeal. Because the letter is part of a lodged exhibit, there is no need for permission to submit an amended appendix—the letter is already part of the record on appeal. (Cal. Rules of Court, rule 8.124(b)(4).) As a result, we understand Employee's request as one for supplemental briefing. Employee would like to reargue the issue now citing to the letter, rather than her points and authorities.
Employee had the opportunity to argue the issue and cite to the letter in her appellant's opening brief and appellant's reply brief, because the letter has always been part of the record. (Cal. Rules of Court, rules 8.204 (a)(1)(C) [provide record citations] & 8.124(b)(4) [exhibits are part of the record].) We will not permit supplemental briefing for sake of changing an argument to rely upon a different part of the record. Accordingly, Employee's request is denied. (Cal. Rules of Court, rule 8.200(a)(4); see Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 423, fn. 1 [there should be a good reason for supplemental briefing].)
Employee contends the trial court erred by granting summary judgment on her wrongful termination cause of action.
Governmental entities are only liable to the extent provided by statute. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899; Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1513-1514.) Wrongful termination is a common law tort. (Miklosy, at p. 899; Ross, at p. 1514.) Because CDFA is a state institution (Food & Agr. Code, § 3953), and wrongful discharge is not a tort based in statutory law, the cause of action fails—CDFA is immune from the common law tort of wrongful termination.
Further, to the extent Employee's constitutional cause of action is meant to raise the same issue of wrongful termination, the cause of action is untimely. (See Rojo v. Kliger (1990) 52 Cal.3d 65, 89-91 [constitutional basis for violation of public policy portion of wrongful termination claim].) As set forth ante, a government tort claim must be presented "not later than six months after the accrual of the cause of action." (Gov. Code, § 911.2, subd. (a); Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1320.) "[F]or purposes of filing a tort claim for wrongful termination, the cause of action accrues when the employment is actually terminated." (Colores, at p. 1320.) The delayed discovery rule is set forth ante, we do not repeat it here.
Employee was terminated on September 28, 2012. Employee filed her government tort claim on November 11, 2013. Employee's claim for wrongful termination was untimely because it was filed more than one year after her termination.
Employee contends the trigger date for the statute of limitations is May 31, 2013, when she obtained a copy of the reference letter. In a deposition on October 18, 2012 (for a different case), Employee was asked how long she worked for CDFA. Employee responded, "My last day of work was September 28th, 2012." Thus, employee was aware in October 2012 that she was no longer working for CDFA. To the extent Employee is implying that she knew she was laid-off, but was unaware until May 2013 that she was fired, such a distinction would not toll the statute of limitations.
A wrongful termination in violation of public policy cause of action requires proof of "an adverse employment action." (Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1109.) In October 2012, Employee knew she was no longer employed by CDFA but may have believed she would be rehired when full-time work became available. Thus, Employee may have believed she was laid off rather than fired. Assuming that to be true, the statute of limitations began to accrue when Employee was laid off because the layoff was an adverse employment action. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 44-45; see also Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 324.) The layoff was adverse not merely due to the loss of work but because Employee alleges she was told that she was being removed from the work schedule due to being white and so that she could be replaced by younger employees. Accordingly, the delayed discovery rule is inapplicable.
Employee contends the trial court erred by granting summary judgment on her cause of action for a violation of her constitutional rights.
In Employee's SAC, she cited "Article I, Sections 1 and 8 of the California Constitution." Article one, section one, of the California Constitution provides, "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." Article one, section eight, of the California Constitution provides, "A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin."
In Rojo v. Kliger, our Supreme Court explained that section eight can be the public policy basis upon which one sues for wrongful termination in violation of public policy. In other words, a wrongful termination cause of action can be based upon a violation of article 1, section 8. (Rojo v. Kliger, supra, 52 Cal.3d at pp. 89-91.)
In Employee's appellant's opening brief, she asserts, "[T]here is no claim filing prerequisite to this cause of action, thus [CDFA's] false assertion that [Employee] did not timely file her Government Tort Claim or DFEH Complaint has no impact on this [constitutional] claim." Employee provides no legal citations in support of her argument. It appears that Employee's cause of action concerns the tort of wrongful termination. As a result, the analysis ante, concerning wrongful termination would be applicable. Due to Employee's failure to provide legal citations and failure to provide an explanation as to why this cause of action differs from the tort of wrongful termination such that it would be exempt from the filing requirements of a government tort claim, we deem the issue to be forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Casasola, supra, 187 Cal.App.4th at p. 212; Stanley, supra, 10 Cal.4th at p. 793.)
Employee contends the trial court erred by granting summary judgment on her Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) claims for discrimination.
An administrative complaint for alleged FEHA violations must be filed within one year "from the date upon which the alleged unlawful practice or refusal to cooperate occurred." (Gov. Code, § 12960, subd. (d).) The elements of a prima facie case of discrimination are: (1) the employee was a member of a protected class; (2) the employee was performing her work competently; (3) the employee "suffered an adverse employment action, such as termination, demotion, or denial of an available job"; and (4) circumstances suggest a discriminatory motive. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354-355.)
In Employee's SAC, in the age discrimination cause of action, she alleges that upon returning to work from her disability leave, she was informed that she would be replaced by younger employees. Employee was then denied "normal work hours." Employee's last day at CDFA was September 28, 2012.
In sum, Employee was informed that she was being replaced by younger workers when she returned to work. Employee was denied an available job or laid off on September 28. The age discrimination cause of action accrued on September 28, 2012. On that date, Employee was aware that she was being replaced by younger employees and that an adverse employment action had occurred. Employee filed her administrative FEHA complaint on November 11, 2013. Because Employee's complaint was filed more than one year after September 28, her complaint was untimely. Accordingly, the trial court did not err by granting summary judgment on the age discrimination cause of action.
In regard to the failure to provide disability accommodations, Employee's cause of action lacks clarity. In the SAC, Employee alleges "she was disabled, and taken off work due to her disability by her physician." Employee further alleges, "She returned to work without restriction." We understand Employee's SAC as asserting she was on medical/disability leave, as ordered by her doctor, when she was disabled, and then she returned to work when she was no longer disabled. Thus, it is unclear at what point CDFA needed to provide disability accommodations, as it appears Employee did not work while she was disabled, per her doctor's orders.
Nevertheless, to the extent some disability accommodations needed to be provided, the statute of limitations for such FEHA claims is one year from the date of the alleged unlawful conduct. (Gov. Code, § 12960, subd. (d); Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811.)
As explained ante, Employee's last day at CDFA was September 28, 2012. At that time, Employee was "told . . . that she was being replaced by younger `bilingual' workers and she was not qualified for the position because she was a white, non-Latin woman who did not speak Spanish." At that point, on September 28, Employee knew she was being laid-off, knew she was being replaced with younger employees, and knew disability accommodations were not provided to her. Thus, the one-year statute of limitations began running on September 28, 2012. Employee exceeded the statute of limitations by not filing her administrative complaint until November 11, 2013. Therefore, the trial court did not err by granting summary judgment.
In Employee's appellant's opening brief, she presents a general, collective argument about her FEHA claims. Employee does not separate the different causes of action. Therefore, we will not continue to address the individual FEHA causes of action. We rely on the two representative analyses, ante, to explain why the trial court did not err. We deem an individual argument of each FEHA cause of action to be forfeited by Employee's failure to present a reasoned legal analysis of each claim. (Cal. Rules of Court, rule 8.204(a)(1)(B); Casasola, supra, 187 Cal.App.4th at p. 212; Stanley, supra, 10 Cal.4th at p. 793.)
Employee contends the trial court erred by granting summary judgment on her cause of action for unfair business practices (Bus. & Prof. Code, § 17200).
We apply the de novo standard of review. (Santa Clara, supra, 137 Cal.App.4th at p. 316.) "Nowhere in the Unfair Competition Act [Act]; Bus. & Prof. Code, § 17200, et seq.) is there a provision imposing governmental liability for violations of the act. Because there is no statute making public entities liable under the [Act], the general rule of governmental immunity must prevail." (Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198, 1202; see also People for the Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Bd. (2005) 125 Cal.App.4th 871, 878-879.) CDFA is a state institution (Food & Agr. Code, § 3935), and thus is immune from liability for alleged breaches of the Unfair Competition Act. Accordingly, the trial court did not err by granting summary judgment.
In its motion for summary judgment, CDFA asserted the unfair business practices cause of action was untimely. Employee asserts governmental immunity was not raised in CDFA's motion for summary judgment and therefore it cannot be relied upon on appeal. Because the issue of governmental immunity is purely a question of law, it may be raised for the first time on appeal. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983.)
Employee contends the trial court erred by granting summary judgment because CDFA violated discovery rules. We have explained ante that Employee's claims are time-barred or are claims that cannot be brought against a governmental entity. As a result, we can provide no relief by analyzing this discovery issue. Thus, the issue is moot. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 [an issue is moot when a decision cannot provide any effective relief].)
Employee contends that CDFA's failure to respond to this issue on appeal is a concession. It is Employee's burden to affirmatively demonstrate error on appeal. (Alki Partners, LP v. DB Fund Services, LLC, supra, 4 Cal.App.5th at p. 590.) A lack of response by CDFA does not mean Employee prevails.
Employee contends the trial court erred in ruling upon her evidentiary objections.
The one item of CDFA's evidence that we relied upon in this opinion was the deposition transcript of Employee, in a separate employment case brought by Employee against a different employer. On appeal, Employee raises no argument concerning this transcript. In the trial court, in Employee's written objections, Employee did not object to the deposition transcript.
As a result, a decision on this issue of evidentiary objections could not provide Employee with any effective relief because we did not rely upon the evidence to which Employee objects. As we have explained ante, Employee's claims are time-barred or are claims that cannot be brought against a governmental entity. Thus, the issue is moot. (MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at p. 214 [an issue is moot when a decision cannot provide any effective relief].)
Employee contends the trial court erred by sustaining the demurrer to her SAC because the issues raised in the second demurrer should have been raised in CDFA's demurrer to the original complaint and demurrer to the first amended complaint. In other words, Employee contends the trial court erred by permitting serial demurrers.
We apply the de novo standard of review. (Rose v. Hudson (2007) 153 Cal.App.4th 641, 648.) Code of Civil Procedure section 430.41, subdivision (b), provides, "A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer." This law became effective on January 1, 2016. (Sen. Bill No. 383 (2015-2016 Reg. Sess.) § 1.)
The trial court ruled on the demurrer to Employee's SAC on December 19, 2014. Because serial demurrers were not prohibited in December 2014, we find Employee's contention to be unpersuasive.
Employee contends the trial court erred by sustaining the demurrer to her breach of contract and breach of implied covenant causes of action because the trial court made an impermissible factual finding by concluding Employee failed to include a breach of contract claim on her government tort claim form.
We apply the de novo standard of review. (Rose v. Hudson, supra, 153 Cal.App.4th at p. 648.) "When a civil action is brought following denial of a government tort claim `the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.'" (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 223-224.)
The trial court concluded a breach of contract claim was "not even remotely referenced in [Employee's] government tort claim." In making that conclusion the trial court did not make a finding of fact, rather, it looked at the claim form to determine if it sufficiently stated facts that reflected a breach of contract. This is the same type of analysis that occurs when ruling on a demurrer; the court looks at the pleading to determine if it contains sufficient facts to state a cause of action. (See Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 [demurrer requires court to determine if the complaint contains sufficient facts to state a cause of action].) Such an analysis is legal in nature. Whether the facts are sufficient to state a cause of action is a question of law. (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1502.) Thus, the court did not make a finding of fact when ruling on the demurrer. Rather, the court determined that the tort claim form did not contain sufficient facts reflecting a breach of contract cause of action, which was a legal conclusion.
Employee contends the trial court erred in awarding costs to CDFA. In particular, Employee asserts the trial court erred by awarding CDFA $40 for demurrer continuance fees.
When awarding costs, the "costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient." (Code Civ. Proc., § 1033.5, subd. (c)(2).) We apply the abuse of discretion standard of review. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 77 (Gorman).)
Government Code section 6103, subdivision (a), provides in relevant part, "Neither the state nor any county, city, district, or other political subdivision, nor any public officer or body, acting in his or her official capacity on behalf of the state, or any county, city, district, or other political subdivision, shall pay or deposit any fee for the filing of any document or paper, for the performance of any official service, or for the filing of any stipulation or agreement that may constitute an appearance in any court by any other party to the stipulation or agreement." CDFA is a state institution. (Food & Agr. Code, § 3953.)
In CDFA's memorandum of costs, it included two entries under the section for filing and motion fees. Both entries were for $20 fees for continuing a demurrer reservation. CDFA attached one $20 receipt to its memorandum, dated August 1, 2014, reflecting "motion to strike reservation continued."
Employee moved to strike and/or tax CDFA's costs. Employee asserted CDFA was exempt from filing and service fees. Employee attached a printout of the trial court's website to her opposition. The printout reflects a $20 motion postponement fee will be charged when a motion is continued, but provides an exemption option for agencies that are exempt from filing fees.
CDFA filed an opposition to Employee's motion, but made no argument concerning the $40 in continuance fees. At the hearing on Employee's motion to tax costs, CDFA said, "We had set a demurrer hearing. Circumstances outside of our control, we had to move that demurrer hearing to a separate date, and the County charged us that $40. So again, we believe that's a legitimate cost." On appeal, CDFA makes no argument in response to this $40 fee issue.
In regard to filing fees, CDFA requested only two $20 continuance fees; it did not request any other filing fees. The register of actions reflects that on August 4, 2014, two $20 continuance fees were paid and two receipts were issued. It reflects that on November 12, 2014, a $450 filing fee was "waived—Exempt per Gov. Code 6103."
Because CDFA is a state institution, it is exempt from filing fees and fees performed for any official service. (Gov. Code, § 6103, subd. (a).) This exempt status was recognized by the trial court when it waived the $450 filing fee. As a result, the two $20 continuance fees appear to have been paid in error. Whether the continuance fee is viewed as a filing fee or service fee, CDFA was exempt. Accordingly, because the continuance fee did not need to be paid, it was not "reasonably necessary to the conduct of the litigation." (Code Civ. Proc., § 1033.5, subd. (c)(2).) Therefore, we conclude the trial court erred by awarding the two $20 continuance fees as costs.
Employee contends the trial court erred in awarding deposition costs because the court "simply rubber stamped the request."
When awarding costs, the "costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient." (Code Civ. Proc., § 1033.5, subd. (c)(2).) We apply the abuse of discretion standard of review. (Gorman, supra, 178 Cal.App.4th at p. 77.)
CDFA filed a memorandum of costs requesting $3,044.62 for the costs of three depositions. Employee argued the deposition costs should be taxed because they were unreasonable. CDFA opposed Employee's motion. CDFA asserted the costs were reasonable in that they reflected the charges for the court reporter and transcript fees. CDFA argued the three people deposed were necessary to the case.
At the hearing on the motion to tax costs, the trial court gave a tentative opinion denying Employee's motion to tax the deposition costs. Employee again argued that the deposition costs should be taxed. CDFA argued that the costs were reasonable. Employee then provided rebuttal argument about the deposition costs. At the end of the hearing, the court adopted its tentative ruling.
The court's tentative ruling itemized the disputed costs. For example, the trial court separately addressed deposition costs. The trial court also listened to argument at the hearing and asked questions of counsel. Given that the trial court was prepared for the hearing with a tentative ruling and asked questions related to the case, we conclude the trial court exercised its discretion in ruling on Employee's motion to tax costs. We are not persuaded that the trial court merely "rubber stamped" the order.
Employee contends the trial court erred by awarding two service of process fees because the two witnesses were served at the same time and at the same location.
When awarding costs, the "costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient." (Code Civ. Proc., § 1033.5, subd. (c)(2).) We apply the abuse of discretion standard of review. (Gorman, supra, 178 Cal.App.4th at p. 77.)
CDFA's memorandum of costs reflects it paid $107.53 for service of process upon Deputy Huskey and $30.00 for service of process upon Deputy Reynolds.
A second receipt from First Legal Network LLC was attached to the memorandum for service upon Deputy Reynolds. A line on the receipt reads "Base $30.00." A second line on the receipt reads "Docs: Depo A/P 12-2." A third line on the receipt reads, "Comment: Related Process." One address was listed on the receipt for Deputy Reynolds, and that address matched one of the addresses on the receipt for Deputy Huskey. Both receipts reflect "Sign: Lt. Bostrum 13:17"
It appears from the receipt that service on Deputy Huskey was unsuccessfully attempted at the first address listed on the receipt. That first address differed from the address on the receipt for Deputy Reynolds. Service upon both deputies was successful at the matching address. The trial court could reasonably conclude that attempting service at two addresses was reasonable. Perhaps Deputy Huskey had a different assignment or was on leave. For example, the checks for the two deputies' travel time were sent to two different Sheriff's Department addresses. Going to two addresses for service of process is reasonable. Accordingly, we conclude the trial court did not err.
Employee contends the trial court erred by awarding $1,100 for ordinary witness fees.
When awarding costs, the "costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." (Code Civ. Proc., § 1033.5, subd. (c)(2).) In 2015, costs that were permitted included "transcribing necessary depositions"; "travel expenses to attend depositions"; and ordinary witness fees for each day of a witness's "actual attendance, when legally required to attend a civil action or proceeding." (Former Code Civ. Proc., § 1033.5, subds. (a)(3) & (a)(7); Gov. Code, § 68093.) The trial court has discretion to award costs for items that are not specifically included in the statute. (Former Code Civ. Proc., § 1033.5, subd. (c)(4).) We apply the abuse of discretion standard of review. (Gorman, supra, 178 Cal.App.4th at p. 77.)
The daily witness fee for a subpoenaed sheriff's deputy is $275. (Gov. Code, § 68096.1, subd. (b).) If the actual cost to the sheriff's department is less than $275 then the sheriff's department must reimburse the excess amount to the subpoenaing party. (Gov. Code, § 68096.1, subd. (c).) If the actual cost to the sheriff's department is more than $275 then the subpoenaing party must pay the difference. (Gov. Code, § 68096.1, subd. (d).) A deputy sheriff cannot be ordered to return for subsequent proceedings beyond the date in the subpoena unless the party who requested the subpoena first pays the sheriff's department another $275 daily witness fee. (Gov. Code, § 68097.5.)
After deposition testimony is transcribed, the reporter must send notice to the deponent and the parties to inform them the transcript is available for proofreading and signing. (Code Civ. Proc., § 2025.520, subd. (a).) The deponent has 30 days from the date of the notice to approve the transcript by signing it, or refuse to approve it by not signing it. (Code Civ. Proc., § 2025.520, subd. (b).) Alternatively, the deponent may approve or refuse to approve the transcript via a certified or registered letter sent to the reporter. (Code Civ. Proc., § 2025.520, subd. (c).) If the deponent fails or refuses to approve the transcript within 30 days, then the transcript will be treated as though it were approved. (Code Civ. Proc., § 2025.520, subd. (f).)
In CDFA's memorandum of costs, it requested (1) $275 for Deputy Reynolds; (2) $275 for Deputy Reynolds; (3) $275 for Deputy Huskey; and (4) $275 for Deputy Huskey. The deputies were deposed for half a day, and then, on a different day, drove to Indian Wells likely from the Riverside and/or Perris area(s) to sign their deposition transcripts.
An e-mail attached to CDFA's memorandum of costs reflects the Sheriff's Department wanted $275 for each deputy traveling to sign their deposition transcript. CDFA paid $275 for each deputy ($550 total) as shown by checks attached to the memorandum. The e-mail is dated March 9, 2015. The checks for the Sheriff's Department are dated March 12. The motion for summary judgment was filed April 1.
The trial court could reasonably conclude that because the deputies were required to drive to Indian Wells, their time needed to be compensated. The statutory rate of compensation is $275. (Gov. Code, § 68096.1, subd. (b).) The trial court could reasonably conclude that signing the transcripts in person, rather than providing approval via mail or failing to sign, was appropriate because it presumably allowed the motion for summary judgment to be brought expeditiously, thus shortening the overall duration of the case. Accordingly, we conclude the trial court acted within the bounds of reason.
Employee contends the trial court included the $550 cost of signing the transcripts for the purpose of punishing Employee. When the trial court ruled on Employee's motion to tax costs, it said, "With respect to the witness fees and the additional $275 that was charged for the two officers, this Court does—is mindful that plaintiff refused to release the court reporter from having custody of the transcripts, which required that the officers had to drive to Indian Wells to review and sign them, taking away—taking them away from their regular jobs. Their fees appear to be reasonable to the Court under the circumstances, and so the Court does adopt its tentative as its ruling."
The trial court's comment that "plaintiff refused to release the court reporter from having custody of the transcripts" is not the reason for the trial court's ruling. Rather, the trial court was explaining why the deputies had to drive to Indian Wells—they drove to Indian Wells because they had to sign the transcript. The trial court's reason for permitting the $550 cost was that the deputies were "away from their regular jobs." Thus, the trial court did not include the cost as a means of punishing Employee; it included the cost because the Sheriff's Department needed to be compensated for the deputies' missed time.
Employee contends the statutory language does not permit recovery of costs related to signing a deposition transcript. Code of Civil Procedure section 1033.5 sets forth a list of costs that are and are not allowable. An allowable cost is "transcribing necessary depositions including an original and one copy." (Former Code Civ. Proc., § 1033.5, subd. (a)(3).) The costs related to a deponent signing a deposition are arguably part of the transcribing process.
However, the statute also includes the following subdivision, "Items not mentioned in this section and items assessed upon application may be allowed or denied in the court's discretion." (Former Code Civ. Proc., § 1033.5, subd. (c)(4).) Thus, the court had discretion to include the costs related to signing the transcripts, despite such costs not being explicitly included among the enumerated allowable items. Hence, we find Employee's argument to be unpersuasive.
Employee contends it was unreasonable to use a reporting service located in Indian Wells, and thus the trial court erred by including the $550 cost. At the hearing on the motion to tax costs, CDFA explained that it used an Indian Wells reporting service because "[t]he depositions were taken out in that area." Given that the depositions occurred in the Indian Wells area, the trial court could reasonably conclude it was appropriate to use an Indian Wells reporting service. Accordingly, we find Employee's argument to be unpersuasive.
Employee requests this court strike CDFA's respondent's brief due to a lack of record citations. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We decline the request. (Cal. Rules of Court, rule 8.204(e)(2).)
The amount of trial court costs respondents are entitled to collect from appellant is modified to $4,282.15. In all other respects, the judgment is affirmed. Respondents are awarded their costs on appeal.
