Filed 7/22/15 Gonzalez v. Mission Neighborhood Health Center CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


CINTYA GONZALEZ,
         Plaintiff and Appellant,
                                                                     A140075
v.
MISSION NEIGHBORHOOD HEALTH                                          (San Francisco County
CENTER et al.,                                                       Super. Ct. No. CGC-12-517610)
         Defendants and Respondents.


         Plaintiff Cintya Gonzalez was terminated from her employment with defendant
Mission Neighborhood Health Center (Mission) after receiving a series of written
reprimands spanning a period of about 20 months. She brought this action against
Mission and some of its officers1 for wrongful termination, alleging claims including age
and disability discrimination, family-leave retaliation, and breach of contract. The trial
court granted summary judgment in defendants’ favor. Before doing so, it imposed
sanctions against Gonzalez and her attorney for spoliation of evidence. We affirm the
trial court’s rulings, except we reverse the portion of the sanctions order imposing
monetary sanctions against Gonzalez’s attorney.




1
 The individual defendants are Brenda Storey, Mission’s chief executive officer;
Fernando Gomez-Benitez, its chief administrative officer and deputy director; and
Charles Moser, the president of its board of directors.


                                                             1
                                     BACKGROUND
       A.     The Facts.
       The facts are largely undisputed, although the parties disagree about how they
should be interpreted. Mission is a “community health center” that provides health care
services to the medically underserved. Gonzalez began working at Mission in 2002. At
the time of her termination in 2010, she was a patient service coordinator at a medical
clinic on Mission Street in San Francisco. It appears that many of the clinic’s patients are
native or fluent Spanish speakers, as are Gonzalez and many of the clinic’s other
employees.
       Gonzalez received the first in the series of reprimands in February 2009 after she
got into an argument with two other employees. Her supervisor intervened to stop the
argument and directed the three employees to meet in the supervisor’s office, but
Gonzalez refused to attend the meeting. As a result of the argument and her
insubordination, Gonzalez received a written warning and was required to attend an
anger-management program.
       In January 2010, Gonzalez got into another argument, this time with a different
coworker, a supervising physician, after she refused to obey the physician’s directions.
An investigator consultant was hired by Mission, and the consultant reported that
Gonzalez’s coworkers believed that Gonzalez was unprofessional in dealing with others,
did not assist in busy times, was absent for long periods during the day, and gave
preferential treatment to certain patients. As a result of the argument and report,
Gonzalez received another written warning, and her continued employment was made
subject to a written “performance plan” (the plan). The plan required Gonzalez to
conduct herself in a professional manner, including speaking respectfully to others, using
a “normal tone of voice,” and dealing with conflicts in an “unemotional way.” A copy of
her job description was attached, and she was reminded that her job was to coordinate
patients, not to supervise other employees. The final paragraph stated, in part, “If you do
not meet the requirements of this plan, further disciplinary action may be taken, up to
an[d] including termination of your employment.” Gonzalez refused to sign the warning.


                                             2
       A week after she was given this second written warning, Gonzalez took a
previously approved two-month leave of absence for bunion surgery. When she returned,
she assumed her prior position.
       In June 2010, Gonzalez’s supervisor learned that Gonzalez had told a coworker, a
person who Gonzalez did not supervise, that the coworker’s performance was deficient
and that the coworker’s name could be placed on a lay-off list if the coworker’s
performance failed to improve. The union shop steward reported that the remark upset
the coworker. After Gonzalez acknowledged making the remark, she was given a third
written reprimand. This one stated that Gonzalez had violated the terms of the plan, and
it admonished her, “This memo will serve as a final reminder that you must meet the
expectations of [the plan] at all times. If you do not meet the requirements of this plan
going forward, further disciplinary action may be taken, up to and including termination
of your employment.” The next month, Gonzalez began a two-month, stress-related
leave of absence.
       Two weeks after Gonzalez returned to work, in October 2010, a male coworker
complained that she had used the Spanish word “chingado”—a word he viewed as
equivalent to the English word “fuck”—in front of clients. As he explained, “when
[Gonzalez] came in to the work area and saw the long line of patients waiting [she] said
‘Chingado!’ [The coworker] stated that patients heard [Gonzalez] as she was standing
right behind him and he was helping a patient not more than 2 feet away from their work
space.” At a meeting on a Friday following the incident, Gonzalez did not deny using the
word, and she was told the matter would be discussed again at a meeting on the following
Monday. Gonzalez responded she would not be at work on Monday because she had an
appointment with her psychologist. Mission ultimately decided to terminate Gonzalez on
the ground that her language constituted a violation of the plan and prior warnings.
When Gonzalez returned to work on Tuesday, she was told that she had been terminated.
Although her psychologist had placed her on disability leave at the prior day’s
appointment, Gonzalez did not mention this when she was told that she was being
terminated.


                                             3
       In a declaration filed in opposition to the summary judgment motion, Gonzalez
disputed some circumstances surrounding her reprimands. Regarding the argument with
the physician, she stated that the physician had given her directions that she was required
to disobey because they directly contradicted instructions from her supervisor who was
absent that day. When Gonzalez “tried to discuss this” with the physician, the physician
“treated [her] badly.” She claimed that Mission officials refused to listen to her side of
the story during the subsequent investigation. And she claimed that when she returned
from foot surgery, she was “punished” by having her desk put into a storage room, which
she was forced to share with a coworker, and being given reduced supervisory duties.
Gonzalez reported that Mission’s deputy director, defendant Fernando Gomez-Benitez,
told another worker that Gonzalez’s leave for foot surgery was an intentional attempt on
Gonzalez’s part “to make the Clinic suffer without a supervisor.” According to
Gonzalez, when she returned from leave, Gomez-Benitez began to “harass” her on a
“weekly basis.”
       Gonzalez claimed that another employee, Millie Cuevas, functioned as a “spy” for
Gomez-Benitez and spread lies about her, and she claimed that substantial misconduct by
Cuevas was tolerated, including the use of foul language at work. According to
Gonzalez, instead of helping Gonzalez, Gomez-Benitez “called her names, incessantly
criticized her work in an unreasonable manner, ignored pleas for help, and failed to
develop a plan to enhance work performance.” Gonzalez attested that Gomez-Benitez
criticized her “otherwise satisfactory work performance” and called her a “witch” after
she returned from disability leave in September 2010.2
       Regarding the third incident, in which Gonzalez was reported to have told a
coworker her performance was deficient, Gonzalez’s declaration claimed that the
subsequent warning was issued “without good reason” but did not dispute Mission’s
2
  As Gonzalez explained in her deposition, when she answered a telephone at work after
returning from leave, Gomez-Benitez was on the line. He said to Gonzalez, “It’s nice to
know that you’re back at work. I have nothing personal against you. I don’t go around
cutting witches’ head [sic] off.” Gonzalez testified that she had no idea what he meant by
the reference to “witches’ heads.”


                                             4
account of the incident or otherwise explain Gonzalez’s position.3 Gonzalez asserted her
termination for foul language was a “pretext,” since her understanding of the word
“chingado” is merely the equivalent of “I’m screwed,” but she did not dispute having
used the word in the presence of patients. She contended that Mission management
intentionally distorted the true meaning of the word as a pretext for terminating her
because of her “stress disability.” According to Gonzalez, Gomez-Benitez had at one
point told her that “taking leave for health reasons could get [her] fired.”
       B.     The Procedural Background.
       In January 2012, Gonzalez brought this suit alleging 10 causes of action. Over the
course of the litigation, she dismissed all of the claims against the individual defendants
except a claim for harassment under the Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12900 et seq.). In addition, her claims for intentional and negligent
emotional distress were dismissed in their entirety. At the time of the hearing on the
summary judgment motion, in addition to the harassment claim, the remaining causes of
action were for wrongful termination in violation of public policy, discrimination in
violation of the California Family Rights Act (CFRA) (Gov. Code, §§ 12945.1, 12945.2),
age discrimination, disability discrimination, retaliation, failure to prevent discrimination
and harassment, and breach of an express contract not to terminate except for cause.
       In May 2013, about a month before they filed their motion for summary judgment,
defendants filed two motions for sanctions. We need not discuss the first one because it
is not challenged on appeal. The second one sought “issue, evidentiary, terminating, and
monetary sanctions” against Gonzalez as a result of her alleged spoliation of evidence.
The notice of motion filed in connection with this motion sought monetary sanctions only
against Gonzalez, but the discussion of sanctions in the supporting memorandum of law
concluded, “As a result of Plaintiff’s abusive discovery tactics, Defendants request that
this Court sanction Plaintiff and her attorney in the amount of $1,500.00 . . . .” (Italics

3
 Gonzalez also submitted a declaration from the coworker to whom she made the
comments. The coworker confirmed that Gonzalez told her “that I better do my work
well because they might put me on a list to be laid-off.”


                                              5
added.) On the same page, the memorandum requested an order imposing sanctions only
against Gonzalez.
       According to two attorney declarations filed in support of the second sanctions
motion, Gonzalez had filed an administrative charge of discrimination a year before she
filed the complaint. After she decided to file suit in August 2011, she asked for the
charge to be dismissed. At her deposition in August 2012, Gonzalez testified she had
kept a journal while working at Mission in which she “wrote about [her] problems with
[her] employment.” Gonzalez said she threw the journal away six months earlier, or
around February 2012. At the continuation of her deposition in March 2013, Gonzalez
changed her testimony about the journal, stating she had discarded it “sometime after
October 2011.” The declarations also detailed other, lesser events of alleged destruction
of evidence by Gonzalez.
       In declarations filed in opposition, Gonzalez’s attorney stated that Gonzalez had
no journal at the time she retained him in January 2012. Gonzalez explained that the
journal reminded her of her traumatic experiences at work. By “the beginning of 2012,”
she put the journal in a box and gave it to her husband, telling him “to put it away as I did
not want to be depressed about it anymore.” She did not learn until “months later” that
he threw it away. She explained that when she was first deposed she had testified that the
journal was discarded after the litigation began because “I thought then that my husband
had kept the journal in storage for me until about February 2012.” At her second
deposition, she testified that the journal had probably been thrown away in October 2011
because “my husband told me at the end of 2012 that he had thrown the journal away
much earlier than what I had thought in August.”
       The trial court partially granted the sanctions motion by entering the following
order: “Plaintiff admitted destroying or allowing to be destroyed a journal relating to her
claims. [¶] . . . [¶] As such, Defendants are entitled to a jury instruction pursuant to
Evidence Code [section] 413 and CACI No. 204 stating that the jury may infer that the
destroyed journal was intentionally destroyed by Plaintiff and that the journal contained
evidence unfavorable to Plaintiff’s claims of (1) Disability Discrimination;


                                              6
(2) Harassment; (3) Negligent Infliction of Emotional Distress; and (4) Intentional
Infliction of Emotional Distress and the exact language of the instruction shall be
determined by the trial judge.” Although defendants’ proposed order included monetary
sanctions only against Gonzalez, the court revised the order and awarded monetary
sanctions against both Gonzalez and her attorney. Gonzalez’s motion for reconsideration
was denied on the ground that Gonzalez failed to “offer any new facts, or at least ones
that do not contradict the sworn evidence already in the record from [her], and no new
circumstances or law.”
       In June 2013, defendants filed their motion for summary judgment. Regarding the
discrimination and retaliation claims, they argued that there was a nondiscriminatory
motive for terminating Gonzalez, and Gonzalez could not demonstrate a causal nexus
between the termination and a discriminatory animus. Regarding the harassment claim,
defendants argued that any improper conduct on their part was not of the nature and
magnitude necessary for a statutory violation. Finally, defendants argued that Gonzalez
did not have an employment contract requiring good cause for her termination.
       The trial court granted the motion after issuing a tentative ruling explaining the
basis of its order. The court generally found no evidence supporting Gonzalez’s
allegations that her termination was motivated by unlawful discrimination. Gonzalez
filed a motion for reconsideration accompanied by a series of declarations. In denying
reconsideration, the court held it “was not persuaded that its ruling granting the Motion
for Summary Judgment was incorrect in any respect.” It also found that “there were no
new issues of fact or law presented that were not previously considered by the court in
granting the motion.”
                                      DISCUSSION
       Gonzalez appeals the trial court’s grant of summary judgment, the denial of her
motion for reconsideration, the award of monetary sanctions against her attorney, and the
grant of instructional sanctions. We reject Gonzalez’s claims and affirm the trial court’s
orders, except we reverse the portion of the sanctions order imposing monetary sanctions
against Gonzalez’s attorney.


                                             7
       A. Summary Judgment.
       We begin by reviewing the applicable legal standards governing our review of a
summary judgment. “ ‘ “ ‘A trial court properly grants a motion for summary judgment
only if no issues of triable fact appear and the moving party is entitled to judgment as a
matter of law. [Citation.] . . .’ ” We review the trial court’s decision de novo, liberally
construing the evidence in support of the party opposing summary judgment and
resolving doubts concerning the evidence in favor of that party.’ ” (Ennabe v. Minosa
(2014) 58 Cal.4th 697, 705.)
       On a motion for summary judgment brought by an employer on a claim of
employment discrimination, the employer has the initial burden of “conclusively
negat[ing] a necessary element of the plaintiff’s case, . . . such that the defendant is
entitled to judgment as a matter of law.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334 (Guz).) Because “[t]he ultimate issue when discriminatory discharge is alleged
is what the employer’s true reasons were for terminating the employee,” the employer
ordinarily must negate the element of wrongful motive “by producing evidence of one or
more reasons for the adverse employment action that were ‘unrelated to unlawful
discrimination.’ ” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th
1510, 1524.) If the defendant is able to carry this burden, to avoid summary judgment
“ ‘the employee must demonstrate a triable issue by producing substantial evidence that
the employer’s stated reasons were untrue or pretextual, or that the employer acted with a
discriminatory animus, such that a reasonable trier of fact could conclude that the
employer engaged in intentional discrimination or other unlawful action.’ ” (Id. at
p. 1529, italics in original.)
       As the Supreme Court elaborated in Guz, “an employer is entitled to summary
judgment if, considering the employer’s innocent explanation for its actions, the evidence
as a whole is insufficient to permit a rational inference that the employer’s actual motive
was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.) The court illustrated the nature
of the analysis by quoting a decision of the United State Supreme Court, Reeves v.
Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133: “Reeves made clear that even


                                              8
where the plaintiff has presented a legally sufficient prima facie case of discrimination,
and has also adduced some evidence that the employer’s proffered innocent reasons are
false, the fact finder is not necessarily entitled to find in the plaintiff’s favor. Thus, the
court admonished, its holding should not be interpreted to mean ‘that such a showing will
always be adequate to sustain a . . . finding of liability. Certainly there will be instances
where, although the plaintiff has established a prima facie case and set forth sufficient
evidence to reject the defendant’s explanation, no rational factfinder could conclude that
the action was discriminatory. For instance, an employer would be entitled to judgment
as a matter of law if the record conclusively revealed some other, nondiscriminatory
reason for the employer’s decision, or if the plaintiff created only a weak issue of fact as
to whether the employer’s reason was untrue and there was abundant and uncontroverted
independent evidence that no discrimination had occurred. [Citations.] . . . [¶] Whether
judgment as a matter of law is appropriate in any particular case will depend on a number
of factors. These include the strength of the plaintiff’s prima facie case, the probative
value of the proof that the employer’s explanation is false, and any other evidence that
supports the employer’s case . . . .’ ” (Guz, at pp. 361-362, italics added by Guz.)
       Here, Gonzalez does not seriously dispute that Mission established a
nondiscriminatory basis for her termination. The record demonstrates a pattern of
performance problems giving rise to three separate written warnings. Although Gonzalez
characterizes the incidents as trumped-up charges intended to cover for discriminatory
motives and contends Mission failed to listen to her side of the story about the incidents,
she does not dispute her two angry confrontations or her insubordination. Further,
Mission had reason to believe, on the basis of the outside consultant’s report, that
Gonzalez was unpopular with her coworkers, who had complained before she ever went
on leave that she did not pull her weight. Thus, the burden therefore shifted to Gonzalez
to produce “substantial evidence that the employer’s stated reasons were untrue or
pretextual, or that the employer acted with a discriminatory animus.” (McGrory v.
Applied Signal Technology, Inc., supra, 212 Cal.App.4th at p. 1529, italics in original.)



                                               9
                1. Retaliation Under CFRA.
       The purpose of CFRA “is to allow employees to take leave from work for certain
personal or family medical reasons without jeopardizing their job security. [Citations.]
The CFRA has two principal components: a right to leave of up to 12 weeks in any 12-
month period to care for a family member or for the employee’s own medical condition
[citation], and a right to reinstatement in the same, or a comparable, position at the end of
the leave [citation]. [¶] . . . [¶] . . . [C]ourts have distinguished between two theories of
recovery under the CFRA. . . . ‘Interference’ claims prevent employers from wrongly
interfering with employees’ approved leaves of absence, and ‘retaliation’ or
‘discrimination’ claims prevent employers from terminating or otherwise taking action
against employees because they exercise those rights.” (Richey v. AutoNation, Inc.
(2015) 60 Cal.4th 909, 919-920.) “A plaintiff can establish a prima facie case of
retaliation in violation of the CFRA by showing the following: (1) the defendant was a
covered employer; (2) the plaintiff was eligible for CFRA leave; (3) the plaintiff
exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an
adverse employment action because he or she exercised the right to take CFRA leave.”
(Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480, 491, italics in original.)
       Gonzalez took two CFRA leaves. The first, beginning in February 2010, was
because of her foot surgery. This leave was preplanned, and it began almost immediately
after she received her second written reprimand and was placed on the plan. Gonzalez
claims that when she returned to work her desk had been relocated to a less desirable
location, and her duties were reduced. She also claims that Gomez-Benitez began
harassing her. The second leave began in late July 2010 after Gonzalez had received her
third written reprimand. She was terminated within three weeks after returning from this
second leave.
       The fact that Gonzalez’s termination came after the two leaves might support an
inference of leave-based retaliation if there were no evidence of Gonzalez’s prior
disciplinary history. But Gonzalez had already been given two written reprimands before
her first CFRA leave. There is no reason to infer causation from the simple temporal fact


                                              10
that the termination occurred after the leaves.4 “[T]emporal proximity alone is not
sufficient to raise a triable issue as to pretext once the employer has offered evidence of a
legitimate, nondiscriminatory reason for the termination. [Citations.] This is especially
so where the employer raised questions about the employee’s performance before [the
employee] disclosed . . . symptoms, and the subsequent termination was based on those
performance issues. [Citations] . . . [¶] This is not to say that temporal proximity is
never relevant in [deciding whether the employer’s stated reasons for the termination
were untrue or pretextual]. In the classic situation where temporal proximity is a factor,
an employee has worked for the same employer for several years, has a good or excellent
performance record, and then, after engaging in some type of protected activity—
disclosing a disability—is suddenly accused of serious performance problems, subjected
to derogatory comments about the protected activity, and terminated. In those
circumstances, temporal proximity, together with the other evidence, may be sufficient to
establish pretext. [Citations.]” (Arteaga v. Brink’s, Inc. (2008) 163 Cal. App. 4th 327,
353-354, italics in original.) Here, those circumstances are simply not present.
       Gonzalez also argues that the reasons given for her third reprimand and
termination were pretextual because they were not sufficiently serious. But again, these
reasons must be viewed in the context of Gonzalez’s work history. At the time of her
third reprimand and termination, she had already been given prior written warnings.
Furthermore, even if these reasons were pretextual, Gonzalez presented no evidence to
support an inference they were a pretext for unlawful discrimination. She presented no
evidence of other conduct suggesting her alleged mistreatment was motivated by animus
resulting from her CFRA leaves. As discussed above, two of the three warnings occurred



4
  Gonzalez also cited the example of other workers who allegedly had suffered adverse
employment events after taking CFRA leave. Without more information about those
employees’ circumstances than is provided in the evidence submitted by Gonzalez, most
of which is hearsay and speculation, we cannot infer a pattern of retaliation. Gonzalez
also contends her CFRA leave was not properly handled by Mission, but this claim was
not pleaded, and she has not demonstrated any associated harm.


                                             11
before she took any leave, and the final warning occurred after a leave for foot surgery.
No evidence supports an inference that her leaves resulted in discriminatory retaliation.
              2. Age Discrimination
       FEHA prohibits an employer from, among other things, discriminating against a
person on the basis of age in compensation, terms, conditions, or privileges of
employment. (§ 12940, subd. (a).) We found no reference to Gonzalez’s age in the
record, but the complaint alleges she is over the age of 45 years. In her opening brief,
Gonzalez claims to be 48 years old.
       In her deposition, Gonzalez acknowledged that she had no reason to believe that
Gomez-Benitez had criticized her job performance because of her age, and there is no
evidence in the record to suggest the various events leading to her termination were
influenced by age-related animus.
       Gonzalez contends her claim of age discrimination is supported by the deposition
testimony of a former Mission employee, Rafael Ildefonzo, who claimed Mission had
retaliated against other employees. In the testimony cited by Gonzalez, Ildefonzo
described retaliation against three workers, one for pregnancy leave, one for political
activity, and one for whistleblowing. Gonzalez characterizes the testimony as describing
discrimination against “older workers who went on disability leave,” but Ildefonzo did
not ascribe any of the discriminatory conduct to age nor did he even state the ages of any
of the alleged victims. Accordingly, this testimony provides no evidence to support the
finding of a nexus between Mission’s various disciplinary acts and discrimination based
on Gonzalez’s age. Gonzalez attempts to create a triable issue by contending she was
replaced by a young worker, but at her deposition she testified she was replaced by
Cuevas, who is several years older. Gonzalez cannot create a triable issue of fact merely
by contradicting her own testimony. (D’Amico v. Board of Medical Examiners (1974)
11 Cal.3d 1, 21, disapproved on other grounds in Woodland Hills Residents Assn., Inc. v.
City Council (1979) 23 Cal.3d 917, 944.)




                                            12
              3. Disability Discrimination.
       “On a disability discrimination claim, the prima facie case requires the plaintiff to
show ‘he or she (1) suffered from a disability, or was regarded as suffering from a
disability; (2) could perform the essential duties of the job with or without reasonable
accommodations, and (3) was subjected to an adverse employment action because of the
disability or perceived disability.’ ” (Wills v. Superior Court (2011) 195 Cal.App.4th
143, 159-160.)
       Gonzalez claims to have suffered from a stress-related disability brought on by her
treatment at work.5 As with her claim of age-related discrimination, there is little
evidence in the record connecting her treatment with discrimination on the basis of any
disability. Her reprimands began long before she claimed to suffer from stress, and she
even acknowledged in her deposition that the written warnings issued prior to her
termination were not motivated by disability-based discrimination.
       The only evidence identified by Gonzalez is the temporal fact that her termination
occurred after she returned from a stress-related leave. There is no evidence in the
record, however, to demonstrate that Mission was aware Gonzalez was disabled by stress
when the decision was made to terminate her. Mission’s director of human resources
testified she was unaware of the reason for Gonzalez’s leave, and Gonzalez does not
claim to have told anyone in authority at Mission. When she returned to work after her
leave in September 2010, she returned without restrictions on her activities, and she did
not inform anyone at Mission that she was in any way disabled. Nor did she believe
Mission had any way to learn, other than from her, of her disability. Gomez-Benitez,
who was ultimately responsible for the decision to terminate Gonzalez, declared that
when Gonzalez returned to work in September 2010, she did not notify Mission that she
continued to be disabled, and he did not consider her so. Because there is no evidence
5
  Gonzalez is vague about the disability she claims, but the only other disability would be
from her foot surgery. Because there is no evidence in the record to suggest that this
surgery had any physical effects that lingered more than a few weeks after the end of her
disability leave, there is no reason to believe it would have motivated some type of
unlawful discrimination.


                                              13
that Mission was aware of Gonzalez’s disability at the time of her termination, there is no
reason to believe that Gonzalez was terminated because of it.
               4. Retaliation.
       Under FEHA, “[i]t is an unlawful employment practice for an employer to
‘discharge, expel, or otherwise discriminate against any person because the person has
opposed any practices forbidden under this part . . . .’ ” (Kelley v. The Conco Companies
(2011) 196 Cal.App.4th 191, 209.) At trial, such a claim is subject to a three-part
analysis. Initially, the employee must establish a presumption of wrongful conduct by
demonstrating a prima facie case of retaliation. To establish the prima facie case, “ ‘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.’ ” (Ibid.)
       Gonzalez’s evidentiary arguments for retaliation are the same as her arguments in
support of her claims of discrimination. Thus, for the same reasons we have rejected her
discrimination claims, we find no substantial evidence to support a conclusion that
Gonzalez’s treatment at work was caused by her engaging in protected activities.
               5. Harassment and Failure to Prevent Harassment.
       “In the FEHA, the terms ‘discriminate’ and ‘harass’ appear in separate provisions
and define distinct wrongs. [Citations.] . . . Subdivision (j)(1) [of section 12940] makes
it unlawful . . . ‘[f]or an employer . . . or any other person, because of . . . physical
disability, mental disability, [or] medical condition . . . to harass an employee . . . .’ ”
(Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705-706, italics in original.)
“[H]arassment often does not involve any official exercise of delegated power on behalf
of the employer. . . . [H]arassment focuses on situations in which the social environment
of the workplace becomes intolerable because the harassment (whether verbal, physical,
or visual) communicates an offensive message to the harassed employee.” (Id. at p. 706.)
“ ‘ “[H]arassment consists of conduct outside the scope of necessary job performance,
conduct presumably engaged in for personal gratification, because of meanness or
bigotry, or for other personal motives.” ’ ” (Id. at. p. 707.)


                                               14
       The law of harassment has been developed largely in the context of sexual
harassment. “California’s FEHA ‘recognize[s] two theories of liability for sexual
harassment claims . . . “. . . quid pro quo harassment, where a term of employment is
conditioned upon submission to unwelcome sexual advances . . . [and] hostile work
environment, where the harassment is sufficiently pervasive so as to alter the conditions
of employment and create an abusive work environment.” ’. . . [¶] . . . In construing
California’s FEHA, [our state Supreme Court] has held that the hostile work environment
form of sexual harassment is actionable only when the harassing behavior is pervasive or
severe.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043, italics in original.)
       Gonzalez bases her claim of harassment on the conduct of Gomez-Benitez, who
Gonzalez says called her names, criticized her work in an unreasonable manner, ignored
her pleas for help, failed to develop a plan to enhance her work performance, moved her
office, and exaggerated her alleged misconduct.
       The claim fails for two reasons. First, most of the behavior described by Gonzalez
was undertaken within Gomez-Benitez’s duties as her supervisor. Her description of
harassing behavior outside of Gomez-Benitez’s “exercise of delegated power on behalf of
the employer” (Roby v. McKesson Corp., supra, 47 Cal.4th at p. 706) is simply too
limited and vague to support a finding that such behavior was pervasive or severe.
Second, as discussed above, Gonzalez has presented no substantial evidence to suggest
Gomez-Benitez’s conduct was associated with her protected statuses under FEHA.
       Because we find no triable issue of fact regarding actionable harassment or
discrimination, Gonzalez’s claim for failure to prevent harassment and discrimination
also fails. And since this cause of action was the only remaining claim pleaded against
the individual defendants, the award of summary judgment in their favor is affirmed.
              6. Termination Contrary to Public Policy.
       Gonzalez recognizes that an affirmance of summary adjudication with respect to
her discrimination claims forecloses much of her claim for wrongful termination in
violation of public policy, but she argues she is entitled to plead her claim for breach of



                                             15
her employment contract, discussed below, as a tort claim for termination in violation of
public policy under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).
       In Tameny, supra, 27 Cal.3d 167, a former employee of the oil company alleged
he had been terminated because he refused to participate in an illegal scheme to fix retail
gasoline prices. (Id. at p. 171.) Our state Supreme Court reversed the dismissal of the
plaintiff’s claim for wrongful termination in violation of public policy, reasoning that
although employers have broad discretion to terminate employees, “fundamental
principles of public policy and adherence to the objectives underlying the state’s penal
statutes require the recognition of a rule barring an employer from discharging an
employee who has simply complied with his legal duty and has refused to commit an
illegal act.” (Id. at p. 174.) In concluding the plaintiff’s claim sounded in both contract
and tort, the court noted, “California decisions . . . have long recognized that a wrongful
act committed in the course of a contractual relationship may afford both tort and
contractual relief, and in such circumstances the existence of the contractual relationship
will not bar the injured party from pursuing redress in tort.” (Id. at pp. 174-175.)
       Tameny does not permit Gonzalez to convert her claim for breach of her
employment contract into a tort claim. As Tameny supra, 27 Cal.3d 167 recognized,
“[n]umerous decisions . . . confirm that ‘ “it [is] well established in this state that if the
cause of action arises from a breach of a promise set forth in the contract, the action is ex
contractu [from a contract], but if it arises from a breach of duty growing out of the
contract it is ex delicto [from a tort].” ’ ” (Id. at p. 175, italics in original.) As the court
explained, if a duty depends on express or implied promises in the contract itself, any
action on the duty sounds in contract, but if the cause of action depends upon “a duty
imposed by law upon all employers in order to implement the fundamental public
policies embodied in the state’s penal statutes,” it may also be pleaded in tort. (Id. at
p. 176.)
       Gonzalez’s claim for wrongful termination in violation of a contractual term
requiring “cause” for her termination is based directly on the alleged terms of her
contract. There is no larger public policy requiring “cause” for the dismissal of


                                               16
employees. On the contrary, the Labor Code holds that employment contracts of
indefinite terms are presumed to be terminable at will by either party. (Id., § 2922.)
Accordingly, her claim for wrongful termination under contract provides no basis for a
tort claim under Tameny supra, 27 Cal.3d 167.6
              7. Breach of Contract.
       Gonzalez’s claim for wrongful termination in violation of her employment
agreement is premised on Mission’s “Human Resources Policies & Procedures Employee
Manual” (manual) (boldface omitted).7 Under the section entitled, “Separation from
Employment” (boldface omitted, upper case lettering changed to initial capitalization),
the manual discusses voluntary resignation, reduction in work force, and involuntary
separation. Under the heading entitled “involuntary separation,” (italics omitted, upper
case lettering changed to lower case), the manual differentiates between probationary,
temporary, and regular employees. It states that probationary employees “may be
terminated for any reason” and “[t]emporary, hourly, or casual employees” may be
terminated “due to a change in the Center’s workload requirements and/or failure of the
employee to perform in a satisfactory manner.” But it also states that “Regular
employees,” such as Gonzalez, “may be terminated for cause.” According to the manual,
“cause” includes, but is not limited to, “[g]ross misconduct and dishonesty,” commission
of a felony or serious misdemeanor, misuse of Mission funds, conflict of interest, failure

6
  Gonzalez also asserts additional public policy claims under Tameny, supra, 27 Cal.3d
167, which she contends allow broader claims than FEHA, but she does not clearly
articulate what public policy was violated by Mission other than those given statutory
protection.
7
  Although Gonzalez characterizes her claim as one for breach of an “express”
employment contract, there is no evidence she had a formal employment contract.
Claims based on a violation of an employer’s personnel policies are characterized as
breach of an implied contract since the policies themselves do not constitute an express
contract. (See Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 682.) We consider
Gonzalez’s arguments regarding the claim notwithstanding her mischaracterization
because the complaint clearly alleges that the claim is based on the provisions of the
employee manual, and Mission does not assert a defense based on the
mischaracterization.


                                            17
to complete work assignments in a satisfactory manner, substance abuse, fraud, excessive
absences, insubordination, and other “serious infractions.”
       Under Labor Code section 2922, there is a “strong” presumption that the
employment of a worker without a contract for a set term is terminable at will by both
employer and employee. (Guz, supra, 24 Cal.4th at p. 335.) Nonetheless, “[t]his
presumption may . . . be overcome by evidence that despite the absence of a specified
term, the parties agreed that the employer’s power to terminate would be limited in some
way, e.g., by a requirement that termination be based only on ‘good cause.’ ” (Foley v.
Interactive Data Corp., supra, 47 Cal.3d at p. 677.) “In the employment context, factors
apart from consideration and express terms may be used to ascertain the existence and
content of an employment agreement, including ‘the personnel policies or practices of the
employer, the employee’s longevity of service, actions or communications by the
employer reflecting assurances of continued employment, and the practices of the
industry in which the employee is engaged.’ ” (Id. at p. 680.) “[A]n allegation of breach
of written ‘Termination Guidelines’ implying self-imposed limitations on the employer’s
power to discharge at will may be sufficient to state a cause of action for breach of an
employment contract. . . . [T]he trier of fact can infer an agreement to limit the grounds
for termination based on the employee’s reasonable reliance on the company’s personnel
manual or policies.” (Id. at pp. 681-682; see also Asmus v. Pacific Bell (2000) 23 Cal.
4th 1, 11 [“California law permits employers to implement policies that may become
unilateral implied-in-fact contracts when employees accept them by continuing their
employment”].) The existence of an implied contract limiting an employer’s right to
terminate at will is based on an examination of the totality of circumstances. (Guz, at
p. 337.) “ ‘Generally, the existence of an implied-in-fact contract requiring good cause
for termination is a question for the trier of fact.’ ” (Stilwell v. The Salvation Army
(2008) 167 Cal.App.4th 360, 380.)
       Although the parties dispute whether Mission’s manual created an implied
contract, the issue is immaterial because we shall assume for purposes of reviewing the
summary judgment that it did. Our assumption is based on the language of the manual,


                                             18
which states that probationary employees may be terminated for any reason and regular
employees may be terminated for cause. A logical interpretation of this distinction is that
Mission employees could anticipate that their employment would be terminated only for
cause upon the expiration of their probationary period. The reading suggested by
Mission, that regular employees “may” be terminated for cause, but “may” also be
terminated for other reasons, is implausible and fails to explain why categories of
employees are treated differently or why the manual describes the kinds of conduct that
constitutes cause.
       We therefore turn to consider what constitutes sufficient cause for termination.
“ ‘Good cause’ ” is ordinarily defined as “ ‘ “ ‘a fair and honest cause or reason,
regulated by good faith . . .’ ” ’ [citation], as opposed to one that is ‘trivial, capricious,
unrelated to business needs or goals, or pretextual . . . .’ ” (Guz, supra, 29 Cal.4th at
p. 336.) But here the manual can be understood to state a more exacting definition
because it refers to relatively serious misconduct. As noted above, the first example cited
is not merely misconduct, but “gross misconduct and dishonesty.” Additional examples
are serious crimes, defalcation and fraud, unsatisfactory work performance, substance
abuse, insubordination, and other “serious infractions.”
       Still, there is little doubt Mission could have terminated Gonzalez even under this
more exacting definition when she refused her supervisor’s instruction to meet in 2009,
and again when she became embroiled in the argument with the physician in early 2010.
This conduct, at the very least, constituted insubordination and unsatisfactory work
performance. But the incidents in June and October 2010 were less egregious and
arguably failed to meet this more exacting standard. In June, Gonzalez ignored her
directions to refrain from supervising others when she threatened a coworker about the
coworker’s job performance. And in October, she used a vulgar exclamation in front of
clients and at least one coworker, although the exact degree of vulgarity is a matter of




                                               19
dispute.8 Although the June and October incidents were less egregious than the earlier
ones, we need not decide whether they, standing alone, would constitute sufficient cause
for termination under Mission’s manual because they occurred when Gonzalez was under
the plan.
       In California, employers are permitted to unilaterally modify terms of unilateral
implied contracts so long as reasonable notice is provided to the employee. (Asmus v.
Pacific Bell, supra, 23 Cal.4th at pp. 11, 14.) Although Mission provided little advance
notice to Gonzalez of its decision to substitute the good-cause standard of the manual
with the plan, the substitution was permissible in light of its forbearance from terminating
Gonzalez.9 As Asmus noted in quoting with approval an out-of-state decision, “ ‘[w]hen
the employer chooses in good faith, in pursuit of legitimate business objectives, to
eliminate an employee policy as an alternative to curtailment or total shutdown, there has
been forbearance by the employer. Such forbearance constitutes a benefit to the
employee in the form of an offer of continuing employment. The employer who provides
continuing employment, albeit under newly modified contract terms, also provides
consideration to support the amended policy manual.’ ” (Id. at p. 14.) Mission could
have fired Gonzalez in January 2010. Its decision not to do so provided consideration for
its modification of the manual by instituting the plan.
       The plan in effect at the time of Gonzalez’s termination required Gonzalez to
satisfy the following standards:




8
  In connection with her motion for reconsideration, Gonzalez submitted a declaration
from a linguist who opined that “the word chingado does not constitute a curse word
particularly when it is used as a self directed expression of frustration.” (Italics and
underlining in original.)
9
  The requirement of reasonable notice in Asmus, supra, 23 cal.4th 1 arose in the context
of a unilateral change to an employee manual in the absence of any triggering event. (Id.
at p. 12.) The court concluded consideration for the change was unnecessary if the
employer waited a “reasonable time” and provided “reasonable notice of the change.”
(Id. at p. 14.) Here, Mission’s forbearance provided ample consideration for the change.


                                             20
       1.     First, and foremost, you are expected to conduct yourself in a professional
              demeanor, at all times. This means:
                     You will conduct yourself in a respectful manner to all employees,
                     managers, nurses, doctors, and patients.
                     You will speak to your team members and clinic managers in a
                     professional and respectful way.
                     You will speak in a normal tone of voice, and will request a meeting
                     to discuss any concerns you may have . . . .
                     ...
                     Refusal to speak respectfully to a team member (or clinic manager),
                     i.e.[,] going quiet[,] yelling, or inappropriate displays of anger, will
                     not be tolerated.
       2.     Derogatory statements, condescending remarks, and off-color joking are
              examples of inappropriate behavior in the work place. You will refrain
              from behaving this way with your co-workers, managers, and/or doing so in
              front of patients.”
(Underlining in original.)
       These terms plainly notified Gonzalez that she needed to be especially vigilant
regarding her demeanor and professional relations with her coworkers and superiors.
Furthermore, she was pointedly given “a final reminder that [she] must meet the
expectations of [the plan] at all times.” And she was told that if she did “not meet the
requirements of this plan going forward, further disciplinary action may be taken, up to
and including termination of [her] employment.”
       The uncontradicted evidence is that Gonzalez did not conform her behavior to the
plan’s directives when she threatened a coworker about the coworker’s job performance
and when she exclaimed “chingado” within earshot of clients and a coworker. Gonzalez
does not dispute these behaviors, although she contends that Gomez-Benitez was hostile,
failed to consider her circumstances fairly, and used the vulgar remark as a pretext for
Mission to rid itself of a difficult employee. Although she claims that other employees
engaged in behavior similar to hers and were not disciplined, she presents no evidence
that any of them engaged in unprofessional behavior after having been placed on a
performance plan strictly prohibiting such behavior. Accordingly, even if the manual is
considered to have created an implied contract, and even if the final two incidents of



                                             21
misconduct would have been insufficient cause for termination under such a contract, the
uncontroverted incidents nonetheless constituted sufficient grounds for termination under
the plan.
       We reject the notion that an employer who places an employee on a performance
plan cannot terminate the employee for violating the plan without showing that the
violation would also have constituted sufficient cause regardless of the plan. A ruling
otherwise would tacitly encourage employers not to give employees who have given
cause for their termination a second chance by putting them on a performance plan. We
decline to adopt a rule that would send such a message.
       C.     Motion for Reconsideration.
       We find no abuse of discretion in the trial court’s conclusion that Gonzalez
presented no new facts or law sufficient to justify reconsideration of its grant of summary
judgment. (Code Civ. Proc., § 1008; Hudson v. County of Los Angeles (2014)
232 Cal.App.4th 392, 408 [standard of review].) Gonzalez submitted three new
declarations, but the trial court could readily have concluded that they did not contain
new information material to the motive for her termination.
       D. The Sanctions Motion.
       Gonzalez challenges the trial court’s award of sanctions in connection with the
destruction of her journal, arguing there was insufficient notice of a request for monetary
sanctions against her attorney, and the award of sanctions against her constituted an abuse
of discretion. We review an award of sanctions for abuse of discretion. (Martorana v.
Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698.)
              1. Sanctions Against Counsel.
       As discussed above, neither the notice of motion for the second sanctions motion
nor the proposed order submitted with the motion sought sanctions against Gonzalez’s
counsel. The only reference to sanctions against counsel was a line in the memorandum
of law accompanying the motion, which was contradicted by the memorandum’s
conclusion seeking sanctions only against Gonzalez. Nor was the motion focused on
counsel’s conduct. Mission sought sanctions against Gonzalez on the basis of her


                                             22
destruction of evidence, without demonstrating counsel’s connection to any spoliation.
On this record, we agree with Gonzalez that the court erred in awarding sanctions against
counsel.
       The notice of motion is critical in providing notice to an opposing party of the
relief sought by a motion and the grounds for that relief. (E.g., Luri v. Greenwald (2003)
107 Cal.App.4th 1119, 1125.) Accordingly, principles of due process preclude an award
of sanctions against an opposing attorney when the notice of motion seeks sanctions only
against the opposing party. (Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317,
318-320.) Because Mission did not seek sanctions against counsel in its notice of motion,
we conclude that the trial court erred in awarding them.
       Defendants argue they provided notice through the one-line reference in their
memorandum of law, but there is no reason to believe this would have placed counsel on
notice that sanctions were sought against him, especially since the reference contradicts
the other documents filed in connection with the motion, including the concluding
sentence of the very same memorandum of law. The portion of the sanctions order
imposing sanctions on counsel must be annulled.
                 2. Sanctions Against Gonzalez.
       Gonzalez also contends the trial court abused its discretion in awarding monetary
sanctions and a jury instruction on spoliation of evidence as a result of the destruction of
her journal.10
       “Spoliation occurs when evidence is destroyed or significantly altered or when
there is a failure to preserve property for another’s use as evidence in current or future
litigation.” (Strong v. State of California (2011) 201 Cal.App.4th 1439, 1458.) In
precluding a tort cause of action for spoliation, the Supreme Court emphasized the
importance of the available nontort remedies, the “[c]hief” of which “is the evidentiary
inference that evidence which one party has destroyed or rendered unavailable was

10
  We do not separately address the appropriateness of the jury-instruction sanction
because it has been mooted by our affirmance of the trial court’s grant of summary
judgment.


                                             23
unfavorable to that party . . . [as] set forth in Evidence Code section 413 and in the
standard civil jury instructions.” (Cedars-Sinai Medical Center v. Superior Court (1998)
18 Cal.4th 1, 11.)
       We find no abuse of discretion in the trial court’s award of sanctions. There was
substantial evidence that Gonzalez destroyed, or permitted to be destroyed, her personal
record of the events at issue, recorded contemporaneously with those events. This
evidence was potentially of critical importance. Furthermore, the destruction occurred at
a time when Gonzalez decided to file suit.
       Gonzalez contends the journal contained material protected by the patient-
psychotherapist privilege or the constitutional right to privacy. But whether the journal
was confidential in whole or in part was an issue for the trial court to resolve. Gonzalez
was not entitled, in effect, to avail herself of self-help in asserting those privileges. On
the contrary, she had a duty to preserve the evidence while asserting whatever defenses
she might have to its production during the civil discovery process.
       Gonzalez also contends she was unaware she should preserve the journal. At the
time of its destruction, however, she had already filed an administrative charge of
discrimination, decided to file suit, and then asked to have her administration charge
dismissed as a prelude to suit. Regardless whether she was aware of her legal duty to
preserve evidence, the trial court was entitled to conclude that she was sophisticated
enough to recognize the importance of the journal in the context of litigation and the
bearing it might have on her claims.
                                       DISPOSITION
       The trial court’s grant of summary judgment is affirmed. The trial court’s award
of monetary sanctions against Gonzalez is affirmed, but its award of monetary sanctions
against Gonzalez’s attorney is annulled.




                                              24
                                                           _________________________
                                                           Humes, P. J.


We concur:


_________________________
Margulies, J.


_________________________
Banke, J.




Gonzalez v. Mission Neighborhood Health Center (A140075)




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