Plummer v. Coen CA2/7

Filed 1/21/14 Plummer v. Coen CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

EDWARD PLUMMER, JR., B243224

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. KC052996)
v.

LAVONNE COEN, et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Salvatore Sirna, Judge. Affirmed.
Edward Plummer, Jr., in pro. per; and Jon Dieringer for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant
Attorney General, Michael E. Whitaker and Bruce Reynolds, Deputy Attorneys General,
for Defendants and Respondents.

_______________________
 Edward Plummer, Jr. sued the Department of Health Care Services (DHCS) and
one of its employees, and the trial court granted summary judgment in the defendants’
favor. Plummer appeals, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plummer, a former employee of DHCS, sued DHCS and its employee LaVonne
Coen, alleging that they discriminated against him based on age and race, and also that
they retaliated against him. The defendants moved for summary judgment, asserting that
the causes of action were barred by the statute of limitations, res judicata, and collateral
estoppel; that Plummer could not establish a prima facie case of discrimination or
retaliation; that the employment decisions Plummer complained of were based upon
legitimate management concerns and were not discriminatory or retaliatory; and that the
causes of action against Coen all failed because claims under the California Fair
Employment and Housing Act (FEHA) may only be raised against employers.
Instead of filing a substantive opposition to the motion for summary judgment,
Plummer requested a continuance of the hearing pursuant to Code of Civil Procedure 1
section 437c, subdivision (h). The trial court denied the request because Plummer had
not made the showing required by that section. The court concluded that the defendants
had satisfied their burden as the moving party and that Plummer had not provided any
substantive opposition to demonstrate any triable issues of material fact. Accordingly,
the court granted the motion for summary judgment. Plummer appeals.

DISCUSSION

I. Service of the Reply Brief

At the hearing on the motion for summary judgment, Plummer told the court that
he had not been served with the defendants’ reply brief. The court consulted the proof of
service that had been filed by the defendants, confirmed that the address on the proof of

1 Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure.

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service was Plummer’s, and then continued with the hearing. Plummer contends on
appeal that he “testified” that he was not served; that any evidence to the contrary “must
be considered false, misleading, and contrary to what is lawful in a court of law”; and that
he was denied due process when the court continued with the summary judgment hearing
despite his assertion that he was not served with the reply brief.
Plummer’s contentions lack merit. The defendants submitted a proof of service
executed by Yuriko Cuan-Claro, an employee of the Office of the Attorney General, in
which she declared that on May 29, 2012, she served the reply memorandum by
overnight FedEx delivery. Pursuant to section 1013, subdivision (c), service by overnight
service is complete when the item to be served, properly addressed and prepaid, is
deposited in a box or facility maintained by the express service carrier or given to the
carrier’s driver or courier. The sender does not have the burden of showing that the
served document was actually received by the addressee. (Sharp v. Union Pacific R.R.
Co. (1992) 8 Cal.App.4th 357, 361.) Plummer has not established any error in the court’s
reliance upon the proof of service, with confirmation from Plummer that the address
listed there was his correct residential address, to conclude that the defendants had served
the reply brief.

II. Continuance Request

Plummer argues that the summary judgment must be reversed because the trial
court failed to grant a continuance for additional discovery pursuant to section 437c,
subdivision (h). Section 437c, subdivision (h) provides that “[i]f it appears from the
affidavits submitted in opposition to a motion for summary judgment . . . that facts
essential to justify opposition may exist but cannot, for reasons stated, then be presented,”
the court shall deny the summary judgment motion or grant a continuance to allow
additional discovery to be conducted. The party opposing the summary judgment motion
must demonstrate by declaration that the facts to be obtained are essential to opposing the
motion; that there is a reason to believe that the facts may exist; and the reasons why
additional time is needed to obtain the facts. (Frazee v. Seely (2002) 95 Cal.App.4th 627,

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633; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) A trial court’s decision
whether to grant a continuance is reviewed for an abuse of discretion. (Frazee, at p. 635.)
Plummer declared that he “is informed and believes that there is essential
controverting evidence to the defendants’ motion for summary judgment/summary
adjudication of the issues which exist but cannot be presented at this time because the
defendants have not produced the evidence, or will not produce the evidence for reasons
such as the defendants[’] belief that said evidence is ‘equally available’ to both parties.”
He wrote that the “defendants have asserted that there was an agreement, assumedly
between the plaintiff and DHCS, regarding his retirement” and that this assertion was
false. Plummer declared that he had requested “documents and admissions” from the
defendants, and that he believed that “these and other discovery items are essential and
may prove to be not only supportive of his opposition to the defendants’ motion, but may
prove to be dispositive as well in terms of disputing” eight facts asserted by the
defendants to be undisputed and material. He stated that his copy of his deposition
transcript was incomplete and that he needed the complete transcript “to dispute
defendants’ undisputed material facts relative to the evidence referenced in said
transcripts.” Finally, he declared that the discovery could be finished by June 26, 2012.
Plummer’s declaration lacked a clear statement of what facts essential to the
opposition existed. He made no reference to any specific facts or evidence except to say
that he disputed the allegation that there had been an agreement between himself and
DHCS as to his retirement. He did not identify what facts his outstanding discovery was
expected to yield, what rebutting facts were expected to be developed through further
discovery, or why these facts were essential to oppose the summary judgment motion. “It
is not sufficient under the [summary judgment] statute merely to indicate further
discovery or investigation is contemplated. The statute makes it a condition that the party
moving for a continuance show ‘facts essential to justify opposition may exist.’ The
declaration indicates [that] . . . depositions remained to be completed and [plaintiff] had
not yet received his expert opinions. However, there is no statement which suggests what
facts might exist to support the opposition to the motions.” (Roth v. Rhodes (1994) 25

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Cal.App.4th 530, 548.) Plummer attempts to distinguish Roth from the present case, but
the cases are similar in that in each case the declaration submitted to support the request
for a continuance of the summary judgment hearing failed to meet the substantive
requirements of section 437c, subdivision (h). (See ibid.) Because Plummer provided
only general information that discovery was not yet complete and conclusory assertions
that the discovery would permit him to oppose the motion, as opposed to a declaration of
the facts that he believed to exist and how they would be essential to justify opposing the
motion for summary judgment, the trial court did not abuse its discretion in failing to
grant his request for a continuance.

III. Substantive Challenges to the Summary Judgment Ruling

A motion for summary judgment is properly granted only when “all the papers
submitted show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
A defendant moving for summary judgment begins with the burden of showing that there
is no merit to a cause of action, and the defendant satisfies this burden by 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, subd. (p)(2).) Once
the defendant has made such a showing, the burden shifts to the plaintiff to show that a
triable issue of one or more material facts exists as to that cause of action or as to a
defense to the cause of action. (Ibid.) If the plaintiff does not make this showing,
summary judgment in favor of the defendant is appropriate. If the plaintiff makes such a
showing, summary judgment should be denied.
Here, because Plummer does not contend that the defendants failed to meet their
initial burden of showing there was no merit to his causes of action, we proceed to the
analysis of the second step of the summary judgment analysis: whether Plummer
demonstrated that a triable issue of material fact existed, precluding summary judgment.
While we review a grant of summary judgment de novo (Intel Corp. v. Hamidi (2003) 30
Cal.4th 1342, 1348), it is always the appellant’s burden on appeal to demonstrate that the

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trial court erred. (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650
[party asserting trial court error may not rest on the bare assertion of error but must
present argument and legal authority on each point raised].)

A. Opposition Papers

Plummer contends that his opposition papers were sufficient to meet his burden to
demonstrate a triable issue of material fact. He argues that his “opposition paper clearly
states, and where it does not state it infers, that the defendants in this case did explore,
plan, or conspire[] to employ a hiring scheme so as to ‘circumvent’ the usual method of
hiring so as to exclude Plummer from the hiring process.” Here, Plummer cites to two
pages of his argument in his points and authorities filed in the trial court in opposition to
the summary judgment motion. We have reviewed these pages and find that they do not
set forth “specific facts showing that a triable issue of material fact exists” (Code Civ.
Proc., § 437c, subd. (p)(2)) as to any of his causes of action.
First, Plummer asserted, without reference to supporting evidence, that if the
defendants had “adhered to” the “statutory constraints” that they ignored, this “would
have prevented each and every harmful event mentioned in the plaintiff’s pleading.” This
contention, not supported by evidence or explained in any detail, was insufficient to
establish any triable issue of material fact.
Next, Plummer observed that the defendants asserted that employment with the
State of California is statutory, but that they had not identified any statute that authorized
“the manner and methods by which the application and hiring process relative to this
action was conducted.” He then noted that the defendants had stated that statutory
provisions controlling the terms and conditions of his employment could not be
circumvented. Although Plummer argues on appeal that this passage “infers” that there
was a conspiracy to circumvent the usual method of hiring, he made no such argument in
this passage, and he neither presented nor described any evidence of any conspiracy or
circumventing conduct by the defendants. This argument is insufficient to demonstrate a
triable issue of material fact.

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 Finally, Plummer included in his opposition papers a paragraph concerning an
alleged agreement between himself and DFCS concerning his employment in which he
contended that there was no such agreement and that the “associated facts are disputed.”
He provided no reference to any evidence to demonstrate a factual dispute; instead, he
stated that discovery had been requested and that he believed it was essential, would
support his opposition, and “may prove to be dispositive” in terms of disputing some of
the defendants’ statements of undisputed material fact. Here, Plummer merely stated that
he disagreed with one of the defendants’ contentions, but he identified no evidence that
would tend to show that a triable issue of material fact existed. Plummer’s opposition
papers failed to demonstrate that triable issues of material fact existed as to the causes of
action in his complaint.

B. Plummer’s Beliefs About Retaliation

In Plummer’s other paragraph of argument concerning the merits of the summary
judgment motion, he argued that he “believes that there is a causal link between his past
participation in protected activity and the DHCS’[s] efforts to hire around him in spite of
his knowledge, skills and experience,” and that he “believes that his failed attempts at
restoring his employment ha[ve] been thwarted by retaliatory actions on the part of
DHCS staff, particularly” defendant Coen. Plummer did not support these statements of
belief with supporting evidence.
Plummer then stated that the actions of Coen and unnamed others “resulted in the
but-for cause of Plummer’s problems.” He asserted that Coen was “the conduit of the
retaliatory animus toward Plummer.” He claimed that Coen worked in the DHCS
personnel office at all times when actions were taken against him, although to support
these factual assertions he cited to his complaint and to a page of the defendants’ points
and authorities. Plummer asserted, without citation to any evidence, that “Coen was at all
times aware of Plummer’s conduct and grievances due to her position in the DHCS
personnel section,” and concluded that “[t]o what extent Coen was involved with
Plummer’s constructive dismissal, can only be determined through additional discovery.”

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At best, Plummer demonstrated that Coen worked in the personnel section of DHCS at
times relevant to the litigation, but he did not identify any specific facts or evidence that
tend to support an allegation of retaliatory animus, retaliation, or discrimination, and he
conceded that he had no evidence of her involvement in what he describes as his
constructive dismissal. By this argument, Plummer has not established any error by the
trial court in granting summary judgment, nor has he demonstrated any triable issue of
material fact.

IV. Request for Judicial Notice

Plummer filed a request that this court take judicial notice of a number of
documents. First, in conjunction with his argument concerning service, Plummer
requested that this court take judicial notice of the FedEx Airbill for the May 29, 2012,
shipment and a letter from FedEx to counsel for the defendants in which FedEx recounted
its three efforts to deliver the package and its conversations with Plummer in which
Plummer refused delivery of the package. We deny Plummer’s request with respect to
Exhibits A and B because these documents may not properly be judicially noticed. (Evid.
Code, §§ 450-452.)

Next, Plummer has requested that we take judicial notice of a series of California
statutes and Rules of Professional Conduct (Exhibits C through F). Pursuant to Evidence
Code section 451, subdivisions (a) and (c), we must grant Plummer’s request to take
judicial notice of California’s statutory law and rules of professional conduct.
Finally, Plummer asks us to take judicial notice of Exhibit G, a letter dated June
27, 2006, addressed to the Department of Fair Employment and Housing that he contends
demonstrates that he had “complained timely” to the Department of Fair Employment
and Housing. This document, which appears not to have been presented to the trial court
and therefore to be outside the record, is not a proper subject of judicial notice. (Evid.
Code, §§ 450-452.)

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 DISPOSITION

The judgment is affirmed. Respondents shall recover their costs, if any, on appeal.

ZELON, J.

We concur:

WOODS, Acting P. J.

SEGAL, J.


Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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