Torres v. Kaiser Foundation Hospitals CA2/7

Filed 2/2/21 Torres v. Kaiser Foundation Hospitals CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

RAFAELA TORRES, B291831

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC646517)
v.

KAISER FOUNDATION
HOSPITALS,

Defendant and
Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Randolph M. Hammock, Judge. Affirmed in
part; reversed in part and remanded.
Mancini & Associates, Marcus A. Mancini, Tara J. Licata;
Benedon & Serlin, Douglas G. Benedon, and Kelly Riordan
Horwitz for Plaintiff and Appellant.
Foster Employment Law; Apex Employment Law and
Michael E. Wilbur for Defendant and Respondent.
_________________________
 Plaintiff Rafaela Torres appeals from a judgment entered
after the trial court granted summary judgment in favor of
defendant Kaiser Foundation Hospitals (Kaiser). Torres was a
hospital kitchen worker for Kaiser. In 2013 Torres took a two-
week leave of absence to care for her seriously ill mother in
Mexico. Shortly after returning, Torres took two months of
medical leave for stress and anxiety. In 2014 Torres took a six-
month medical leave of absence for shoulder surgery and
recovery. When Torres returned to work in November 2014, she
repeatedly requested time off in January and February 2015 to
care for her mother in Mexico, who was dying. Kaiser denied
each of Torres’s requests, but Torres still traveled to Mexico.
When Torres failed to report for work, Kaiser classified her
absence as unauthorized and subsequently terminated her.
Torres brought claims under the California Fair
Employment and Housing Act (FEHA; Gov. Code, § 12900 et
seq.)1 for discrimination, retaliation, harassment, and wrongful
termination based on her actual or perceived mental and physical
disabilities. Torres also alleged interference with her right to
leave and retaliation in violation of the California Moore-Brown-
Roberti Family Rights Act (CFRA; §§ 12945.1, 12945.2). The trial
court granted summary judgment, finding Torres had failed to
rebut Kaiser’s showing it had a legitimate, nondiscriminatory
reason for terminating Torres (based on staffing needs), and
Torres’s CFRA claim failed because Torres had not met the
eligibility requirement she work at least 1,250 hours for Kaiser in
the 12 months prior to her requested leave.

1 All further undesignated statutory references are to the
Government Code.

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 We conclude there are disputed questions of fact as to
Torres’s claims for retaliation in violation of CFRA, wrongful
termination in violation of public policy based on CFRA, and
declaratory relief, but Torres has failed to raise a triable issue as
to her FEHA claims or her claim for punitive damages. We
reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

A. Torres’s Employment with Kaiser2
In 2008 Kaiser hired Torres as an on-call kitchen worker in
the food and nutrition services department at Kaiser’s Panorama
City Medical Center. Kaiser employs about 50 kitchen workers,
in a mix of full-time, part-time, and on-call positions. In 2012
Torres became a regularly scheduled part-time kitchen worker.
Since at least 2013, Sheila Sansano served as director of the food
and nutrition services department. Torres’s immediate
supervisor was Miguel Sanchez, who was the assistant director of
the department in charge of scheduling kitchen worker shifts.
According to Torres, she and Sanchez did not get along well.
Susan Yaller, a human resources consultant for Kaiser, conferred
with managers and supervisors regarding termination of Kaiser
employees.
As a Kaiser kitchen worker, Torres was represented by the
United Health Care Workers-West (union) and was employed
under the terms of a collective bargaining agreement (CBA)
between Kaiser and the union. The CBA provided that

2 The factual background is taken from evidence submitted
by the parties in support of or in opposition to Kaiser’s motion for
summary adjudication. We note where the facts are in dispute.

3
employees were entitled to a certain number of “life balance
days,” which “[i]nsofar as possible . . . will be granted on the
day(s) most desired by the Employee” with “[p]reference”
determined by seniority. The CBA provided further that
“[r]equests for Life Balance Days shall be granted in an
emergency situation,” and as to nonemergency situations,
requests “must be made forty-eight (48) hours in advance (not
including days that a department or work area is closed) for the
Employee to receive the time off. In the event that a non-
emergency request for a Life Balance Day(s) is denied, the next
request by the same Employee shall be granted provided the day
requested is at least forty-eight (48) hours after the day that was
denied.”
The CBA also provided for personal time off without pay:
“Where circumstances warrant, an Employee may request and
may receive personal time off without pay. Such requests shall
not be unreasonably denied. In a verifiable emergency, on duty
Employees may ask for personal time off which shall be granted
on momentary notice. It shall not be a condition to the granting
of personal time off that the Employee secure his/her own
replacement. Employees may not be denied personal time off
because they have accumulated Vacation, Life Balance Days, and
Sick Leave.” The CBA also stated that employees with at least
six months of service “shall be entitled to a leave of absence for
illness, injury, or pregnancy, critical or chronic illness or death in
the Employee’s immediate family.” Further, “[l]eaves of absence
for compelling or personal situations may be granted to
Employees at the discretion of the department manager and will
not be unreasonably denied without adequate cause. A leave of

4
absence without pay up to sixty (60) days with Management’s
approval may be granted to Employees for personal reasons.”

1. Torres’s 2013 and 2014 leaves
In May 2013 Torres requested two weeks of leave to care
for her mother, who was suffering from advanced pancreatic
cancer. In support of her request, Torres submitted proof of her
mother’s health condition on Kaiser forms. Kaiser approved
Torres’s request and designated her absence as family leave
under the Family and Medical Leave Act of 1993 (29 U.S.C.
§§ 2601–2654) (FMLA) and CFRA. At the time, Torres told
Sanchez her mother was ill and told Sansano she needed time off
because her mother was dying.
After Torres returned to work, in July 2013 she took leave
for about two months to treat her own stress and anxiety. Kaiser
again designated her absence as family leave under FMLA and
CFRA.
In March 2014 Torres was awarded vacation time for
September 2014 through a bidding process based on seniority in
accordance with the CBA. Beginning on May 6, 2014, Torres took
medical leave for an operation to her right shoulder. Kaiser
initially designated Torres’s leave of absence as family leave
under FMLA and CFRA. But Torres exhausted her CFRA leave
allowance on July 14, 2014. Torres remained on authorized leave
and did not return to work until November 3, 2014. Sanchez and
Sansano were aware Torres was on medical leave for a physical
injury.

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 2. Kaiser’s 2014 denials of leave for Torres to care for her
sick mother
Torres did not take her vacation leave in September 2014
because she was still on medical leave. Sometime before Torres
returned to work in November 2014, Torres contacted Sanchez
and requested to reschedule her September vacation time for
January or February 2015 so she could visit her mother. Sanchez
told Torres he could not approve any time off because too many
kitchen workers were out. According to Sanchez, “Torres did not
mention she needed time off to care for her mother.” But at his
deposition, Sanchez acknowledged Torres told him in 2013 she
wanted to see her mother because she was ill, and then “[a] little
bit after November” 2014 Torres said she wanted time off to visit
her sick mother.
During the period from November 2014 through January
2015, Torres made several more requests to Sanchez for time off,
but Sanchez denied each request “for operational needs.” In late
December 2014 Torres submitted a request through Kaiser’s
online portal to use accrued vacation days to take time off from
January 17 through February 15, 2015. Sanchez and Sansano
discussed Torres’s request, and Sanchez told Sansano he could
not approve the request due to staffing shortages and the fact the
vacation request was outside of the vacation bidding process.
Sansano agreed, and Torres’s request was denied “due to
operational needs.”
Sanchez explained his decision to deny Torres’s requests:
“At the end of the year it seems like a lot of people get sick,
people go on [l]eave, plus [there are] the vacations that have been
approved from the previous April.” Sanchez estimated he had “10
or 12 people out on almost a daily basis” from November 1, 2014

6
through the end of January 2015. However, Sanchez later
testified during an arbitration (as part of the CBA grievance
process) that in January 2015 the kitchen employed about 50
workers, only five of whom took any leave that month. Further,
in February 2015 only three kitchen workers were out on leave.
In his declaration in support of Kaiser’s motion for summary
judgment, Sanchez stated that during the period from
January 17 to February 15, 2015 (the specific dates for which
Torres requested leave), three kitchen workers were on long-term
medical leave (one full-time, one part-time, one on-call), one part-
time kitchen worker resigned, and three on-call kitchen workers
were not available for certain shifts.3
In early January 2015 Torres asked Sanchez why her
vacation request was denied, and Sanchez told her it was for
operational reasons. Sanchez asserted in his declaration Torres
did not say at this time the time off was to visit her sick mother.
Torres also met with Sansano in January to discuss the denial of
her request to use her vacation time. Sansano said she could not
grant Torres’s request because Sansano did not have someone to
cover for her. Torres explained she needed the time off to “go see
[her] mother because she was very sick.” According to Torres,
Sansano replied, “I don’t care.” Sansano and Torres also
discussed Torres’s request for additional family leave time.

3 In his declaration, Sanchez also identified additional
kitchen workers who took time off in November, December, and
January that did not conflict with Torres’s requested leave, as
well as absences by workers employed in positions other than
kitchen worker, such as cook, diet clerk, and cashier. Kaiser does
not explain how the absences of employees in different positions
impacted the decisions to deny Torres’s requests for leave.

7
Sansano told Torres she could not “fix the FMLA for her.”
Sansano did not recall whether she told Torres she could take an
unpaid leave of absence.

3. Kaiser’s continued denials of Torres’s requests for
leave in January and February 2015 and termination
of Torres
On January 24, 2015 Torres was not scheduled to work, but
she went to Kaiser to turn in a “caregiver status report,” which
she left with executive chef Jamby Martin. The report stated,
“This patient is the caregiver for a person who . . . [¶] [r]equires
supervision/attendant care for illness” and the “patient is placed
on caregiver release from 1/26/2015 through 2/8/2015.” The
report was signed by Juan Fernando Vargas, M.D. After giving
the note to Martin, Torres went to Mexico to care for her sick
mother. She did not show up for her shift the following Monday,
on January 26.
When Sanchez arrived to work on January 26, Martin gave
him the report. Sanchez testified he “didn’t understand that
note.” He added, “I never seen a note like that. I didn’t know
what to make of it. To me, the employee was gone, abandoned
her job, without any authorization from HR or from
[m]anagement.” But he understood Torres was requesting time
off to care for someone. Sanchez showed the report to Sansano,
who found the note was “inappropriate” and “weird” because it
did not come from the doctor for Torres’s mother. When Kaiser’s
lawyer asked Sansano at her deposition to confirm as to the
patient that she “couldn’t tell if it was a pet or a human being
because it didn’t identify who Ms. Torres wanted to care for,”
Sansano answered, “Right.” At Sansano’s direction, Sanchez

8
called Yaller to discuss the report. Yaller told Sanchez to call
Torres. Sanchez averred he tried to call Torres “two or three”
times that week but did not reach her. He left one voicemail
message. Sanchez did not document the calls, although Kaiser’s
policy required a supervisor to document the “time, method, [and]
result” of efforts made to reach an employee who failed to report
for work.
On January 27 Kaiser mailed a completed form letter to
Torres denying her request for leave. The letter acknowledged
Torres had requested leave “to care for [her] parent due to her
serious health condition,” but it stated Torres was not eligible for
leave under FMLA or CFRA because she had worked only 922.85
hours for Kaiser in the prior 12 months, fewer than the 1,250
hours required to qualify under the statutes. The box on the form
stating, “[y]ou failed to provide sufficient certification to support
your request,” was not checked. Torres failed to report for her
shifts on January 27, 28, and 29.
On January 29 Torres submitted an online request to use
her life balance days for time off from February 9 through 13,
2015. Sansano denied the request due to staffing levels. But
Sanchez acknowledged during his deposition that during the
period from January 26 through the end of February he did not
attempt to contact any on-call kitchen workers to see if they could
cover Torres’s shifts. Sanchez testified the kitchen had 12 to 20
on-call kitchen workers at the time, but his recollection was that
all of them were already scheduled to work.
Sometime between January 27 and 30, Sanchez, Sansano,
and Yaller met to discuss Torres’s absence from work. Yaller
drafted a letter to Torres, which Sanchez signed on January 30
and sent by messenger and mail. The letter stated, “You have

9
not been at work since January 23, 2015, nor have you provided
the employer with an appropriate off work certification. In
addition, you were scheduled to work on January 26, 2015 to
January 29, 2015 from 4:00 [p.m.] to 8:00 [p.m]. You did not
report to work as scheduled and did not contact us to report your
absence as required by our Attendance Program. At this time,
your failure to report to work is considered an ‘authorized [sic]
absence’. [¶] . . . [¶] It is imperative that you contact me . . . no
later than . . . February 2, 2015 . . . . Should you fail to comply
with this directive, we will assume that you no longer wish to
maintain your position with Kaiser . . . and will proceed with
processing your termination.” Torres’s son received the letter
and called Torres in Mexico to tell her she had received a letter
suggesting she would be fired.
On February 2 Torres submitted a second online request to
use her life balance days for time off from February 9 through 13,
2015. Sansano again denied the request based on staffing
shortages. On February 3 Torres and her daughter Arcelia
contacted Kaiser’s human resources department in Oakland.
Arcelia translated the conversation.4 The human resources
worker told Torres she could use up to 30 hours of accrued sick
time or take up to six weeks of unpaid personal leave to care for
her mother. Torres and Arcelia then called Sanchez on his work
cell phone. Torres told Sanchez she was in Mexico caring for her
sick mother. Torres explained she had spoken to human
resources about available leave. Torres requested to “pass . . . the
phone” to her daughter who could better explain what she was

4 Kaiser submitted an audio recording of the conversation
with its summary judgment papers.

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told, but Sanchez responded it was his day off and Torres could
call him the next day.
After the phone call, Sanchez e-mailed Yaller to confirm his
conversation with Torres. Sanchez wrote that Torres told him
“she got permission from HR in Oakland and her [d]octor to go
see her [m]om. I told her that her family leave and [v]acation
was denied and that she needed to report to work immediately.”
Sanchez did not mention that Torres’s mother was ill.
The next day Arcelia called Sanchez. She tried to explain
the leave options Kaiser’s human resources representative had
set out for Torres, but Sanchez responded, “HR has nothing to do
w[ith] how [I] run[] the dep[artment].” He added he “was not
going to put anything through and that was it.”
On February 6 Sanchez sent to Torres by messenger
another letter drafted by Yaller, which stated, “At this time, your
failure to report to work is considered an ‘unauthorized
absence’. . . . [¶] [W]e are directing you to report to work on
Monday, February 9, 2015 . . . . Should you fail to comply with
this directive, we will . . . proceed with processing your
termination.”
Torres remained in Mexico to care for her mother, who had
fallen into a coma. On February 10 Sanchez signed and sent to
Torres by messenger another letter drafted by Yaller stating,
“You did not report to work as scheduled on February 9, 2015 and
did not contact us to report your absence as required . . . . We
have made several attempts to reach you by phone, using the
phone numbers you provided, but were unsuccessful in making
direct contact with you. [¶] You failed to notify the Employer of
your inability to report for your scheduled shift and you failed to
respond to messages from the Employer inquiring about your

11
status. . . . [¶] At this time we are unclear of your employment
status and your intentions because you have not made direct
contact with management.” The letter concluded by stating
Kaiser would “proceed with processing [Torres’s] termination” if
Torres did not contact Sanchez by 5:00 p.m. the next day.
Yaller acknowledged in her deposition the statement in the
letter that Torres had failed to contact management was
inaccurate in light of Torres’s February 3 phone call to Sanchez.
Yaller stated she would not have recommended terminating
Torres before Torres’s return and instead would have conducted
an investigation before terminating her if Yaller had known
Torres was in Mexico caring for her mother who was dying of
pancreatic cancer. Sansano similarly testified she did not recall
Sanchez ever telling her Torres was in Mexico because her
mother was dying. Sansano acknowledged Torres’s purpose for
traveling to Mexico would have been an important piece of
information in the decision whether to terminate Torres.
On February 11, after Torres still did not report for work,
Sanchez, Sansano, and Yaller decided to terminate her. On
February 13 Sanchez messengered a letter to Torres stating she
was terminated as of that date. The letter stated, “As you are
aware, you have not provided me with an appropriate off work
certification and I have not received any documentation as of
today.” The letter also noted Torres failed to comply with the
call-in policy that an employee who cannot report for work give
notice to his or her manager prior to the start of the scheduled
shift. The February 13 letter attached a “corrective action
process” notice terminating Torres’s employment for
unauthorized absences and failure to comply with the call-in

12
policy. In total, Torres failed to report for 14 shifts between
January 26 and February 12.
Torres returned from Mexico on February 13, 2015. That
day she called Sanchez and inquired about her schedule. At
Sanchez’s instruction, on February 16 Torres met with a union
representative and Sanchez, at which Sanchez read Torres the
corrective action notice documenting her termination as of
February 13. On February 20 Torres’s mother died.
On January 15, 2016 Torres filed a complaint against
Kaiser with the Department of Fair Employment and Housing
(DFEH), alleging violations of FEHA and CFRA. Torres alleged
Kaiser took adverse actions against her, including discrimination,
harassment, retaliation, denial of family care or medical leave,
and termination. The DFEH complaint alleged Torres suffered
from a physical disability (right shoulder injury) and a mental
disability (anxiety and depression), and it alleged Kaiser
retaliated against Torres based on her use of CFRA leave.5

B. Torres’s Complaint
On January 11, 2017 Torres filed a complaint against
Kaiser6 alleging, among other things, Kaiser denied her requests
for leave and terminated her because of her disabilities and in

5 In February 2016 Torres was reinstated as a kitchen
worker without backpay following a grievance process under her
CBA. At the time of the hearing on the summary judgment
motion, Torres continued to work in Kaiser’s food and nutrition
services department.
6 The complaint also named Kaiser Permanente NPC, Kaiser
Foundation Health Plan Inc., and Doe defendants, but they were
not named in Kaiser’s motion for summary judgment.

13
retaliation for her use of medical leave. Torres alleged causes of
action against Kaiser for (1) discrimination, harassment, and
retaliation in violation of FEHA based on physical disability; (2)
discrimination, harassment, and retaliation in violation of FEHA
based on mental disability; (3) violation of CFRA; (4) retaliation
and wrongful termination in violation of public policy; and (5)
declaratory relief. Torres based her FEHA claims on her physical
and mental disabilities and Kaiser’s denial of medical leave for
her disabilities. Torres also alleged Kaiser retaliated against her
based on her request for, entitlement to, or taking leave under
CFRA and FMLA. Torres attached a copy of her DFEH
complaint, incorporating its allegations into her complaint. As to
her wrongful termination claim, Torres alleged Kaiser violated
the public policies embodied in FEHA, CFRA, and Labor Code
section 132a, which prohibits discrimination, harassment, and
retaliation based on an employee’s submission of a workers’
compensation claim.

C. Kaiser’s Motion for Summary Judgment or, in the
Alternative, Summary Adjudication
On March 22, 2018 Kaiser filed a motion for summary
judgment or, in the alternative, summary adjudication. In
support of its motion, Kaiser submitted deposition testimony,
declarations, and other evidence relating to Torres’s employment,
requests for leave, and work absences. Kaiser argued Torres’s
FEHA claims failed because Kaiser had no knowledge Torres
suffered from a disability and Kaiser had a legitimate,
nondiscriminatory business reason for its actions, namely,
Torres’s unauthorized absences. Kaiser also asserted Torres’s

14
FEHA claims were limited to conduct that occurred on or after
January 15, 2015, one year before she filed her DFEH complaint.
As to Torres’s CFRA claims, Kaiser argued Torres was not
eligible for CFRA leave in January 2015 and Torres’s
unauthorized absences were a legitimate, nondiscriminatory
business reason for its actions. Kaiser sought summary
adjudication of Torres’s claim for wrongful termination in
violation of public policy on the grounds Torres never submitted a
workers’ compensation claim under Labor Code section 132a and
Kaiser did not violate FEHA. Kaiser also argued Torres could
not prove her claim for declaratory relief because it was
derivative of her other claims, and her punitive damages claim
failed because Sanchez, Sansano, and Yaller were not officers,
directors, or managing agents of Kaiser.
In opposition to the motion, Torres submitted deposition
testimony and other evidence and argued there were disputed
questions of material fact whether Kaiser denied her requests for
leave and terminated her based on her physical or mental
disability or in retaliation for her taking medical leave under
CFRA. Torres asserted Kaiser had no legitimate business reason
for denying her request for leave to care for her mother. As to her
retaliation claims, Torres contended she “engaged in protected
activity when she requested and took medical leave in 2013 and
2014, for her mental disabilities and shoulder disabilities . . . .
Torres was subjected to adverse employment actions when she
was repeatedly denied leave to take care of her dying mother and
when she was terminated.” Torres failed to address Kaiser’s
request for summary adjudication of her request for punitive
damages.

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D. The Trial Court’s Ruling
After a hearing, on June 7, 2018 the trial court granted
summary judgment in favor of Kaiser. The trial court ruled
Torres’s discrimination, retaliation, and wrongful termination
claims under FEHA failed because Kaiser had shown a
legitimate, nondiscriminatory reason to terminate Torres based
on her unauthorized absences from work and failure to call in to
say she would not be reporting for work. Further, Torres had not
presented evidence to show pretext that Kaiser acted with a
discriminatory intent because of her physical and mental
disability in denying her leave. The trial court found Torres had
not established a prima facie case of interference or retaliation
under CFRA because Torres had not met the CFRA eligibility
requirement of having worked at least 1,250 hours for Kaiser in
the 12 months preceding her request for leave in January 2015.7
The trial court found Torres’s FEHA harassment claims
failed because Torres had not offered evidence of any harassing
conduct that occurred on or after January 15, 2015 (one year
before Torres filed the DFEH complaint).8 The court ruled

7 The trial court did not address Torres’s claim Kaiser
retaliated against her on the basis of her requesting and taking
CFRA leave.
8 Torres does not present an argument in her opening brief
in support of her harassment claims or her claim of wrongful
termination in violation of the public policy based on Labor Code
section 132a, thereby forfeiting the issues. (Aptos Council v.
County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7
[“Issues not raised in the appellant’s opening brief are deemed
waived or abandoned.”]; Altavion, Inc. v. Konica Minolta Systems
Laboratory, Inc. (2014) 226 Cal.App.4th 26, 63 [argument made
for the first time in reply brief is forfeited].)

16
Torres’s claim for wrongful termination in violation of the public
policy based on Labor Code section 132a also failed because
Torres did not submit a workers’ compensation claim with
Kaiser. The court concluded summary adjudication was proper
as to Torres’s declaratory relief cause of action because it was
derivative of Torres’s other claims. The court found Kaiser’s
request for summary adjudication of Torres’s request for punitive
damages was moot as a result of the court’s other rulings. The
trial court did not rule on Kaiser’s evidentiary objections.9
On June 28, 2016 the trial court entered judgment in favor
of Kaiser. Torres timely appealed.

DISCUSSION

A. Standard of Review on Summary Judgment
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618 (Regents); Delgadillo v. Television Center, Inc.
(2018) 20 Cal.App.5th 1078, 1085.) “‘“‘“We review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.”’ [Citation.] We liberally construe the

9 Where the trial court fails to rule on evidentiary objections
in the context of a summary judgment motion, on appeal the
court presumes the objections have been overruled, with the
objector having the burden to renew its objections in the Court of
Appeal. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.) Kaiser
does not raise its evidentiary objections on appeal.

17
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347;
accord, Husman v. Toyota Motor Credit Corp. (2017)
12 Cal.App.5th 1168, 1179 (Husman).)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853; Husman, supra, 12 Cal.App.5th at pp. 1179-1180.) If
the defendant satisfies this initial burden, the burden shifts to
the plaintiff to present evidence demonstrating there is a triable
issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, at p. 850; Husman, at pp. 1179-1180.) We must liberally
construe the opposing party’s evidence and resolve any doubts
about the evidence in favor of that party. (Regents, supra,
4 Cal.5th at p. 618; Husman, at p. 1180.) “‘[S]ummary judgment
cannot be granted when the facts are susceptible [of] more than
one reasonable inference . . . .’” (Husman, at p. 1180, quoting
Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)
In evaluating claims of discrimination under FEHA,
California courts apply the burden-shifting approach set forth in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Harris
v. City of Santa Monica (2013) 56 Cal.4th 203, 214 (Harris); Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The
same approach is applied in evaluating claims of retaliation
under FEHA and CFRA. (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1042 (Yanowitz) [applying McDonnell Douglas
burden-shifting to claim of retaliation under FEHA]; Bareno v.

18
San Diego Community College Dist. (2017) 7 Cal.App.5th 546,
560 (Bareno) [“CFRA retaliation claims . . . are subject to the
McDonnell Douglas burden-shifting analysis [citation].”].)
Under this approach, if the plaintiff establishes a prima
facie case supporting his or her discrimination or retaliation
claim, the burden shifts to the employer to rebut the presumption
of discrimination or retaliation by offering a legitimate,
nondiscriminatory reason for the adverse employment action.
(Harris, supra, 56 Cal.4th at p. 214; Guz, supra, 24 Cal.4th at
p. 355.) An employer may meet its initial burden in moving for
summary judgment or adjudication of an employment
discrimination or retaliation cause of action by presenting
evidence that one or more elements of a prima facie case is
lacking, or the employer acted for a legitimate, nondiscriminatory
reason. (Husman, supra, 12 Cal.App.5th at p. 1181; Featherstone
v. Southern California Permanente Medical Group (2017)
10 Cal.App.5th 1150, 1158 (Featherstone); Soria v. Univision
Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 591 (Soria).) A
legitimate, nondiscriminatory reason is one that is unrelated to
the prohibited bias and, if true, would preclude a finding of
discrimination or retaliation. (Guz, supra, 24 Cal.4th at p. 358.)
“[I]f nondiscriminatory, [the employer’s] true reasons need not
necessarily have been wise or correct. [Citations.] While the
objective soundness of an employer’s proffered reasons supports
their credibility . . . , the ultimate issue is simply whether the
employer acted with a motive to discriminate illegally.” (Ibid.)
If the employer satisfies its initial burden, the burden
shifts to the plaintiff to present evidence creating a triable issue
of fact showing the employer’s stated reason was a pretext for
unlawful animus in order to avoid summary judgment or

19
adjudication. (Husman, supra, 12 Cal.App.5th at p. 1182;
Featherstone, supra, 10 Cal.App.5th at pp. 1158-1159; Soria,
supra, 5 Cal.App.5th at p. 591.) “The plaintiff’s evidence must be
sufficient to support a reasonable inference that discrimination
[or retaliation] was a substantial motivating factor in the
decision. [Citations.] The stronger the employer’s showing of a
legitimate, nondiscriminatory reason, the stronger the plaintiff’s
evidence must be in order to create a reasonable inference of a
discriminatory [or retaliatory] motive.” (Featherstone, at p. 1159;
see Soria, at p. 591 [plaintiff must produce “‘“substantial
responsive evidence” that the employer’s showing was untrue or
pretextual’”].)
To meet his or her burden, the plaintiff may present
evidence showing the stated reason by the employer was
“unworthy of credence” as circumstantial evidence of pretext.
(Guz, supra, 24 Cal.4th at p. 361; see Reeves v. Sanderson
Plumbing Products, Inc. (2000) 530 U.S. 133, 147 [“In
appropriate circumstances, the trier of fact can reasonably infer
from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.”].) However,
in order to prevail, a plaintiff must present evidence to support a
rational inference that intentional discrimination or retaliation,
“on grounds prohibited by the statute, was the true cause of the
employer’s actions.” (Guz, at p. 361, italics omitted; Serri v.
Santa Clara University (2014) 226 Cal.App.4th 830, 863 [“‘“the
[employee] must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence’”’”].)

20
B. Triable Issues of Fact Exist Whether Kaiser’s Denials of
Torres’s Requests for Leave Beginning in September 2014
Constituted a Continuing Course of Conduct
Kaiser contends Torres can only recover under FEHA for
actions taken by Kaiser after January 15, 2015—the year
preceding the filing of her DFEH complaint. We agree with
Torres that Kaiser’s repeated denials of her requests for leave
starting sometime before November 2014 form a continuing
violation, allowing her to recover for acts that occurred more than
a year before the filing of her DFEH complaint.
“A plaintiff suing for violations of FEHA ordinarily cannot
recover for acts occurring more than one year before the filing of
the DFEH complaint.” (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1400; accord, Richards v. CH2M Hill, Inc.
(2001) 26 Cal.4th 798, 818 (Richards); see § 12960, subd. (e).)
However, “when an employer engages in a continuing course of
unlawful conduct under the FEHA . . . the statute of limitations
begins to run, not necessarily when the employee first believes
that his or her rights may have been violated, but rather, either
when the course of conduct is brought to an end, as by the
employer’s cessation of such conduct or by the employee’s
resignation, or when the employee is on notice that further efforts
to end the unlawful conduct will be in vain.” (Richards, at p. 823;
accord, Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th
1185, 1192 [“The continuing violation doctrine aggregates a
series of wrongs or injuries for purposes of the statute of
limitations, treating the limitations period as accruing for all of
them upon commission or sufferance of the last of them.”].)
In applying the continuing violation doctrine, “we consider
whether ‘the employer’s . . . actions [were] (1) sufficiently similar

21
in kind—recognizing . . . that similar kinds of unlawful employer
conduct, such as acts of harassment or failures to reasonably
accommodate disability, may take a number of different forms
[citation]; (2) have occurred with reasonable frequency; (3) and
have not acquired a degree of permanence.’” (Yanowitz, supra,
36 Cal.4th at p. 1059, quoting Richards, supra, 26 Cal.4th at
p. 823.) The plaintiff bears the burden to demonstrate her claims
are founded on a pattern or practice of employer conduct that
continued into the limitations period. (Jumaane v. City of Los
Angeles, supra, 241 Cal.App.4th at p. 1402.)
Here, Sanchez’s denials of Torres’s requests for leave to see
her sick mother in January 2015 began as early as September
2014 while Torres was still on medical leave for her shoulder
injury. The denials were sufficiently similar in kind—premised
on Kaiser’s operational needs—and continued into February
2015. As Sanchez testified in his deposition, “[F]rom the time
[Torres] came back in November all the way through January she
request[ed] vacation.” Torres continued to seek some form of
time off, alternatively requesting to use vacation time, medical
leave, “flexible personal days,” sick time, or personal unpaid
leave. Thus, the denials did not acquire a degree of permanence
at least until Torres went to Mexico and failed to report for work
on January 26, 2015. Under these facts, Torres has met her
burden to raise a triable issue of fact whether Kaiser’s repeated
denials constituted a continuous course of conduct beginning in
September 2014.

22
C. Torres Raised a Triable Issue of Fact Whether Kaiser
Retaliated Against Her for Exercising Her CFRA Rights
1. Torres adequately alleged Kaiser’s denials of leave
were in retaliation for exercising her CFRA rights
Kaiser argues Torres only alleged in her DFEH and
superior court complaints that her termination was an adverse
employment action taken in retaliation for the exercise of her
right to CFRA leave in May 2014, not Kaiser’s denials of her
requests for leave sometime before her return to work in
November 2014. Kaiser’s contention lacks merit.
“‘The complaint serves to delimit the scope of the issues
before the court on a motion for summary judgment [citation],
and a party cannot successfully resist summary judgment on a
theory not pleaded [citations].’” (Koussaya v. City of Stockton
(2020) 54 Cal.App.5th 909, 946, fn. 17; accord, WFG National
Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th
881, 888 [“The pleadings determine the issues to be addressed by
a summary judgment motion.”]; St. Myers v. Dignity Health
(2019) 44 Cal.App.5th 301, 313 [“‘[A] “defendant moving for
summary judgment need address only the issues raised by the
complaint; the plaintiff cannot bring up new, unpleaded issues in
his or her opposing papers.”’”].)
Although Torres’s complaint is not a model of clarity, it
does allege Kaiser retaliated against Torres based on her request
for CFRA leave. Further, the complaint incorporates the
allegations Torres made in her DFEH complaint into Torres’s
CFRA cause of action. Torres’s DFEH complaint identified both
denial of leave and termination as “adverse actions” Kaiser took
against Torres and alleged Kaiser retaliated against her based on
her use of CFRA leave. The complaint therefore reasonably

23
alleges Kaiser’s denials of Torres’s requests for leave were
retaliatory adverse employment actions based on her earlier use
of statutorily protected leave.10

2. Torres raised a triable issue of fact that Kaiser’s
proffered reasons for its adverse employment actions
were pretextual
In order to prove a cause of action for retaliation in
violation of CFRA, the plaintiff must prove: “‘“(1) the defendant
was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA [leave]; (3) the plaintiff exercised
[his or] her right to take leave for a qualifying CFRA purpose;
and (4) the plaintiff suffered an adverse employment action, such
as termination, fine, or suspension, because of [the] exercise of
[his or] her right to CFRA [leave].”’” (Bareno, supra,

10 The cases relied on by Kaiser are distinguishable, involving
plaintiffs who sought to rely on entirely new, unpled theories of
recovery to avert summary judgment. (See Bosetti v. United
States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th
1208, 1225 [affirming summary judgment without reaching
unpled theory where “[plaintiff] never alleged a cause of action in
which she sought the return of her insurance premiums”]; Van v.
Target Corp. (2007) 155 Cal.App.4th 1375, 1377, 1387 [affirming
trial court’s refusal to consider ownership question raised by
plaintiffs in opposition to summary judgment motion where
plaintiffs did not plead lack of ownership in lawsuit challenging
defendants’ refusal to allow plaintiffs to gather signatures in
front of defendants’ stores]; Tsemetzin v. Coast Federal Savings &
Loan Assn. (1997) 57 Cal.App.4th 1334, 1343 [“Plaintiff did not
allege a cause of action claiming that an open book account
existed between himself and [defendant] with respect to the
disputed rental arrearages.”].)

24
7 Cal.App.5th at p. 560; accord, Soria, supra, 5 Cal.App.5th at
p. 604.)
Kaiser does not dispute as to Torres’s claim it was an
employer covered by CFRA; Torres was eligible for and took
CFRA leave in May 2014 for surgery to her right shoulder; and
Torres exercised her right to take leave for the qualifying CFRA
purpose of shoulder surgery and recovery.11 Thus, the viability of
Torres’s CFRA retaliation claim turns on the fourth factor—
whether she suffered an adverse employment action because of
the exercise of her right to CFRA leave. (Bareno, supra,
7 Cal.App.5th at p. 560; accord, Soria, supra, 5 Cal.App.5th at
p. 604.)

11 “[T]o be eligible for CFRA leave an employee must have ‘at
least 1,250 hours of service with the employer during the
previous 12-month period . . . .’ (Gov. Code, § 12945.2, subd. (a).)”
(Dudley v. Department of Transportation (2001) 90 Cal.App.4th
255, 262; accord, Department of Fair Employment & Housing v.
Verizon California, Inc. (2003) 108 Cal.App.4th 160, 162, fn. 2.)
It is undisputed Torres qualified and was approved for CFRA
leave from May to July 2014. Further, in evaluating an
employee’s CFRA retaliation claim, “the issue is not whether [the
employee] was eligible to take CFRA leave at the time she
suffered the adverse employment action, but whether she was
eligible to take CFRA leave when she took the leave that resulted
in the adverse employment action.” (Dudley, at p. 262.)
Therefore, the trial court erred in ruling Torres’s retaliation
claim failed because she did not work at least 1,250 hours for
Kaiser in the 12 months preceding her request for leave. Kaiser
does not argue otherwise on appeal, instead asserting Torres
failed to show pretext for Kaiser’s legitimate reasons for denying
her requests for leave and later termination.

25
 Kaiser contends it denied Torres’s requests for leave and
later terminated her based on legitimate, nonretaliatory reasons,
including that Torres did not report to her scheduled shifts, she
was not eligible for CFRA leave when she requested time off in
January 2015, and Kaiser properly denied Torres’s request for
leave. Torres argues she has raised a triable issue of fact
whether Kaiser’s purported reasons were pretext for retaliation
against Torres for exercising her right to CFRA leave. Torres has
the better argument.
First, contrary to Kaiser’s contention, the temporal
proximity between Torres’s medical leave and Sanchez’s denials
of Torres’s leave requests raises an inference Sanchez was
motivated to deny Torres’s request because she recently exercised
her right to medical leave. (Le Mere v. Los Angeles Unified
School Dist. (2019) 35 Cal.App.5th 237, 243 [“close temporal
proximity between a plaintiff’s protected activity and the alleged
retaliatory conduct against the plaintiff has been found sufficient
to support a prima facie case of causation” with respect the
retaliatory animus and the adverse action]; Taswell v. Regents of
University of California (2018) 23 Cal.App.5th 343, 365 [temporal
proximity between protected disclosure of information and
adverse employment action supported whistleblower retaliation
claim].) Torres was still on medical leave for her shoulder injury
when Sanchez first denied her request to use her scheduled
vacation time in January instead of September. When Torres
returned to work in November 2014, Sanchez continued to deny
Torres’s repeated requests for time off to see her sick mother.
Further, Sanchez provided inconsistent testimony as to
whether his denials of Torres’s leave requests were based on
staffing needs. In his deposition, Sanchez estimated he had “10

26
or 12 people out on almost a daily basis” from the beginning of
November 2014 through the end of January 2015. Sanchez later
contradicted that testimony during the arbitration proceedings,
averring that only about five out of 50 total kitchen workers took
any leave in January 2015 and only three kitchen workers took
leave in February.
Sanchez also testified in his deposition the kitchen
employed 12 to 20 on-call kitchen workers, but none was
available at the time of Torres’s absences. But in his declaration
in support of Kaiser’s motion for summary adjudication, Sanchez
identified only one on-call kitchen worker who was on leave and
three who were unavailable for certain shifts at the time of
Torres’s requested leave. Further, Sanchez never attempted to
schedule on-call kitchen workers to cover Torres’s missed shifts
in January and February 2015.
As to Torres’s January 2015 caregiver status report,
Sanchez testified he “didn’t understand that note” despite being
aware since “[a] little bit after November” that Torres’s requests
for time off were for the purpose of seeing her sick mother.
Straining credulity, Sansano testified as to the asserted patient
that needed care, Sansano “couldn’t tell if it was a pet or a
human” despite the report stating Torres “is the caregiver for a
person who . . . [¶] [r]equires supervision/attendant care for
illness.” (Italics added.) Further, Torres told Sansano in early
January she needed to “go see [her] mother because she was very
sick,” to which Sansano replied, “I don’t care.” And despite
Sanchez’s and Sansano’s agreement the caregiver status report
was not adequate, Kaiser’s letter response on January 27 did not
identify insufficient certification as a ground for denying Torres’s
request. To the contrary, the January 27 letter acknowledged

27
Torres had requested leave “to care for [her] parent due to her
serious health condition.” Moreover, there is no evidence anyone
from Kaiser conveyed to Torres the report’s purported
insufficiencies, including Sanchez when he spoke to Torres by the
phone on February 3.
Torres also presented evidence Kaiser did not follow its
own policies in denying leave and terminating Torres. The CBA
required Kaiser to grant Torres’s emergency requests to use life
balance days or take personal time off without pay. But Sanchez
rejected Torres’s requests to use both types of leave, although he
knew Torres was in Mexico caring for her dying mother. When
Torres’s daughter Arcelia contacted Sanchez on February 4, 2015
to request Torres use one of the leave options Kaiser’s human
resources representative described to Torres the day before (use
of 30 hours of accrued sick time or up to six weeks personal leave
without pay), Sanchez stated “HR has nothing to do w[ith] how
[I] run[] the dep[artment]” and he “was not going to put anything
through and that was it.”
Finally, Sanchez failed to disclose to Yaller the purpose of
Torres’s requests for leave (for Torres to visit her sick mother).
And Yaller stated she would not have recommended terminating
Torres if she had known Torres was in Mexico caring for her
dying mother.
Viewing this evidence in the light most favorable to Torres,
as we must, Torres has raised a triable issue of fact as to whether
intentional retaliation on grounds prohibited by CFRA was the
true cause of the Kaiser’s actions in denying Torres leave and,
ultimately, terminating her.

28
D. Torres Failed To Raise a Triable Issue of Fact as to Her
FEHA Retaliation Claims
“‘[T]o establish a prima facie case of retaliation under the
FEHA, a plaintiff must show (1) he or she engaged in a “protected
activity,” (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the
protected activity and the employer’s action.’” (Cornell v.
Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942; accord,
Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 55.)
As discussed, the trial court ruled Torres’s FEHA claims
based on her physical and mental disabilities failed because
Kaiser had shown legitimate, nondiscriminatory reasons to
terminate Torres. Citing to the same evidence of pretext on
which she relies to prove her CFRA retaliation claim, Torres
argues she has raised a triable issue whether Kaiser’s reasons
were pretextual. She has not.
To prove her FEHA retaliation claim, Torres had to show
Kaiser’s stated reasons for taking adverse employment action
were pretexts for retaliation based on Torres’s opposition to “any
practices forbidden under [FEHA] or because [Torres] has filed a
complaint, testified, or assisted in any proceeding under” FEHA
based on Torres’s physical or mental disability. (§ 12940, subd.
(h); see Yanowitz, supra, 36 Cal.4th at p. 1042 [employee’s refusal
to follow supervisor’s order to terminate sales associate because
supervisor found the associate sexually unattractive was
protected activity for which she could not be subjected to
retaliation].)
While Torres’s evidence casts doubt on whether Kaiser’s
proffered reasons for denying leave and terminating her were
genuine, Torres has presented no evidence to support an

29
inference Kaiser’s actions were taken because Torres engaged in
protected activity under section 12940, subdivision (h). (See Serri
v. Santa Clara University (2014) 226 Cal.App.4th 830, 863
[“‘[D]isbelief of an [e]mployer’s stated reason for a termination
gives rise to a compelling inference that the [e]mployer had a
different, unstated motivation, but it does not, without more,
reasonably give rise to an inference that the motivation was a
prohibited one.’”]; McGrory v. Applied Signal Technology, Inc.
(2013) 212 Cal.App.4th 1510, 1531-1532 [same].) Nor has Torres
cited to any authority for the proposition an employee who
merely exercises her right to medical leave under CFRA “has
opposed any practices forbidden” by FEHA. (§ 12940, subd. (h).)

E. Torres Failed To Raise a Triable Issue of Fact as to Her
FEHA Disability Discrimination Claims
FEHA prohibits an employer from subjecting an employee
to an adverse employment action based on the employee’s
protected status, including his or her physical disability.
(§ 12940, subd. (a).) To prevail on her FEHA discrimination
claim, Torres needed to show “‘(1) [s]he was a member of a
protected class, (2) [s]he . . . was performing competently in the
position [s]he held, (3) [s]he suffered an adverse employment
action, such as termination, demotion, or denial of an available
job, and (4) some other circumstance suggests discriminatory
motive.’” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067-1068, quoting Guz, supra,
24 Cal.4th at p. 355.) Torres again argues she raised a triable
issue whether Kaiser’s reasons for denying her leave requests
and terminating her were pretexts for disability discrimination,
relying on the same evidence of pretext she offered to prove her

30
CFRA retaliation claim. The trial court did not err in granting
Kaiser summary adjudication of these claims.
As with Torres’s FEHA retaliation claim, she has failed to
present evidence raising a triable issue of fact whether Kaiser’s
proffered reasons were pretext for unlawful discrimination based
on her physical or mental disability. Torres did not present any
evidence to show Kaiser’s denial of her leave requests and later
termination were motivated by discriminatory animus based on
her shoulder injury or her stress and anxiety. Although Sanchez
and Sansano had knowledge that Torres took leave for her
mental health in 2013 and a shoulder injury in 2014, there is no
evidence Sanchez, Sansano, Yaller, or anyone else at Kaiser
made derogatory comments about her conditions or evidenced
discriminatory animus based on her disabilities.

F. Triable Issues of Fact Exist as to Torres’s Wrongful
Termination Claim Based on CFRA
Torres contends the trial court erred in summarily
adjudicating her claim for wrongful termination in violation of
public policy. “The elements of a claim for wrongful discharge in
violation of public policy are (1) an employer-employee
relationship, (2) the employer terminated the plaintiff’s
employment, (3) the termination was substantially motivated by
a violation of public policy, and (4) the discharge caused the
plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154;
accord, Haney v. Aramark Uniform Services, Inc. (2004)
121 Cal.App.4th 623, 641.) “The central assertion of a claim of
wrongful termination in violation of public policy is that the
employer’s motives for terminating the employee are so contrary
to fundamental norms that the termination inflicted an injury

31
sounding in tort.” (Roby v. McKesson Corp. (2009) 47 Cal.4th
686, 702; see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d
167, 176.) Protected conduct includes exercising a statutory right
or privilege. (Yau, at p. 155.) As discussed, Torres raised a
triable issue whether Kaiser terminated her in retaliation for the
exercise of her right to medical leave under CFRA.12

G. Triable Issues of Fact Exist as to Torres’s Declaratory Relief
Claim
To qualify for declaratory relief, a plaintiff must show “‘(1)
a proper subject of declaratory relief, and (2) an actual
controversy involving justiciable questions relating to the rights
or obligations of a party.’” (Lee v. Silveira (2016) 6 Cal.App.5th
527, 546; accord, Artus v. Gramercy Towers Condominium Assn.
(2018) 19 Cal.App.5th 923, 934 [“‘“‘“The fundamental basis of
declaratory relief is the existence of an actual, present
controversy over a proper subject.”’”’”].)
The trial court granted summary adjudication of Torres’s
declaratory relief claim because the claim was derivative of
Torres’s FEHA and CFRA claims. Because Torres has raised a
triable issue of fact as to her CFRA retaliation claim, the trial
court erred in granting summary adjudication of her declaratory
relief claim.

12 Because there is no triable issue as to Torres’s FEHA
claims, the trial court did not err in granting summary
adjudication of Torres’s claim for wrongful termination in
violation of public policy based on FEHA.

32
H. Torres Failed To Raise a Triable Issue of Fact as to Her
Punitive Damages Claim
“In an action for the breach of an obligation not arising
from contract, where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud,
or malice, the plaintiff . . . may recover damages for the sake of
example and by way of punishing the defendant.” (Civ. Code,
§ 3294, subd. (a).) “An employer shall not be liable for damages
pursuant to subdivision (a), based upon acts of an employee of the
employer, unless the employer had advance knowledge of the
unfitness of the employee and employed him or her with a
conscious disregard of the rights or safety of others or authorized
or ratified the wrongful conduct for which the damages are
awarded or was personally guilty of oppression, fraud, or malice.
With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, ratification or act of
oppression, fraud, or malice must be on the part of an officer,
director, or managing agent of the corporation.” (Civ. Code,
§ 3294, subd. (b).) The statutory term “managing agent” includes
“only those corporate employees who exercise substantial
independent authority and judgment in their corporate
decisionmaking so that their decisions ultimately determine
corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563,
566-567; accord, Colucci v. T-Mobile USA, Inc. (2020)
48 Cal.App.5th 442, 454 [substantial evidence supported jury
award of punitive damages against corporation where corporation
authorized supervisor to exercise substantial discretionary
authority to override general corporate policies].)
Kaiser moved for summary adjudication of Torres’s
punitive damages claim based on the lack of evidence any officer,

33
director, or managing agent of Kaiser “committed, authorized, or
ratified any act of fraud, oppression, or malice.” Torres did not
address punitive damages in her opposition brief, and the court
ruled the issue was moot based on its other rulings.
On appeal, Torres argues summary adjudication of her
punitive damages claim was error, contending her claim may be
premised on her CFRA and wrongful termination claims. Kaiser
renews its argument Torres lacks evidence any officer, director,
managing agent of Kaiser authorized, ratified, or knew of the
adverse employment actions taken against Torres. We agree
Torres has failed to raise a triable issue of fact as to her punitive
damages claim.13 As Torres’s attorney acknowledged at oral

13 Torres urges us to allow the parties an opportunity to
provide supplemental briefing on the issue of punitive damages
because the trial court did not reach the merits of Kaiser’s
argument, relying on Code of Civil Procedure section 437c,
subdivision (m)(2), which provides, “Before a reviewing court
affirms an order granting summary judgment or summary
adjudication on a ground not relied upon by the trial court, the
reviewing court shall afford the parties an opportunity to present
their views on the issue by submitting supplemental briefs.”
However, supplemental briefing is not appropriate where an
issue was raised and briefed below and on appeal. (Bains v.
Moores (2009) 172 Cal.App.4th 445, 471, fn. 39 [“[S]upplemental
briefing was not required in this case because the parties have
already been provided ‘an opportunity to present their views on
the issue.’”]; Byars v. SCME Mortgage Bankers, Inc. (2003)
109 Cal.App.4th 1134, 1147, fn. 7 [“We do not believe that
supplemental briefing is required in this case since the issue was
raised below and has already been briefed on appeal.”].) Kaiser
moved for summary adjudication of Torres’s request for punitive
damages and briefed the issue in the trial court and on appeal.

34
argument, she has presented no evidence Sanchez, Sansano, or
Yaller was an officer, director, or managing agent of Kaiser, nor
has she identified any officer, director, or managing agent of
Kaiser who had any involvement in the adverse employment
actions at issue in this case.

DISPOSITION

The judgment is affirmed in part and reversed in part. The
trial court is ordered to vacate its order granting Kaiser’s motion
for summary judgment and to enter an order denying summary
adjudication as to Torres’s third (CFRA retaliation), fourth
(wrongful termination in violation of public policy based on
CFRA), and fifth (declaratory relief) causes of action. The trial
court is to enter an order granting Kaiser’s motion for summary
adjudication as to the first and second causes of action (FEHA
physical and mental disability discrimination, retaliation, and
harassment), as well as Torres’s claim for punitive damages. The
matter is remanded for further proceedings consistent with this
opinion. The parties are to bear their own costs on appeal.

FEUER, J.
We concur:

PERLUSS, P. J. SEGAL, J.

Torres had an opportunity to brief this issue below and in her
reply brief, but elected not to respond to Kaiser’s argument.

35