Filed 2/10/16 Bekono v. Reed Group CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THOMAS BEKONO,                                                      D067705

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2013-00040946-
                                                                   CU-WT-CTL)
REED GROUP, LTD.,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Affirmed.



         Thomas Bekono, in pro. per., for Plaintiff and Appellant.

         Gordon & Rees, Roger M. Mansukhani, Blake R. Jones and Brian S. Fong for

Defendant and Respondent.

         In this appeal, the trial court granted a summary judgment in favor of defendant

Reed Group, Ltd. (the Reed Group) and against plaintiff Thomas Bekono as to two

causes of action. Earlier the court had sustained a demurrer to a third cause of action
without leave to amend. Bekono appeals from the resulting judgment, arguing error not

only as to causes of action alleged against the Reed Group, but also as to other claims he

contends he asserted against the Reed Group.

       Based on the record before us, Bekono asserted only three causes of action against

the Reed Group, and Bekono has not met his burden of establishing reversible error in the

disposition of any of the three causes of action. Accordingly, we affirm the judgment.

                                             I.

                                BURDENS ON APPEAL

       In the trial court, at times Bekono was represented by counsel, and at times he

represented himself. On appeal, Bekono has been representing himself. In both the trial

and appellate courts, the procedural rules apply the same to self-represented parties as to

parties represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

       The judgment of the trial court is presumed correct, and the appellant has the

burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557,

564.) Accordingly, where the record is silent, " 'error must be affirmatively shown.' "

(Ibid.; accord, Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 (Maria P.) [burden on

appellant to provide an adequate record of proceedings]; Gee v. American Realty &

Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [" 'if the record is inadequate for

meaningful review, the appellant defaults and the decision of the trial court should be

affirmed' "]; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th

498, 502 (Hernandez) ["Failure to provide an adequate record on an issue requires that

the issue be resolved against [appellant]."].) To overcome the presumption of

                                             2
correctness, "a party challenging a judgment has the burden of showing reversible error

by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (Ballard).)

       A party forfeits an argument raised for the first time on appeal unless the party

"demonstrate[s] either that it preserved these arguments in the trial court, or that it may

properly raise such arguments for the first time on appeal." (Dietz v. Meisenheimer &

Herron (2009) 177 Cal.App.4th 771, 798 (Dietz); see North Coast Business Park v.

Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31 ["theories not raised in the trial

court may not be raised for the first time on appeal"].) An appellate court has the

discretion to consider " 'a pure question of law on undisputed factual evidence' " for the

first time on appeal. (Dietz, at p. 800.) However, this "forgiving approach" (Sea & Sage

Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417) is limited to " 'either

(1) a noncurable defect of substance such as lack of jurisdiction or failure to state a cause

of action, or (2) a matter affecting the public interest or the due administration of

justice' " (Dietz, at p. 800). The present appeal does not involve either of these

exceptions.

       Additionally, in the briefing, an appellant must provide citations to the record for

purposes of directing the court to the pertinent evidence or other matters that demonstrate

reversible error. (Cal. Rules of Court, rule 8.204(a)(1)(C);1 City of Lincoln v. Barringer

(2002) 102 Cal.App.4th 1211, 1239.) We are not responsible for searching the appellate

record for facts to support the contentions on appeal. (Del Real v. City of Riverside


1      All further rule references are to the California Rules of Court.

                                              3
(2002) 95 Cal.App.4th 761, 768; Annod Corp. v. Hamilton & Samuels (2002) 100

Cal.App.4th 1286, 1301 [appellate court does not provide "an unassisted review of the

record"].) An appellant who fails to cite to the record forfeits the issue or argument on

appeal that is presented without the record reference. (City of Lincoln, at p. 1239; Del

Real, at p. 768; Annod Corp., at p. 1301.)

       Likewise, an appellate brief must "support each point by argument and, if possible,

by citation of authority." (Rule 8.204(a)(1)(B).) Where a party fails to cite authority or

present argument, the party forfeits the argument on appeal. (Estate of Cairns (2010) 188

Cal.App.4th 937, 949.)

       Pursuant to these procedures, we have considered only those portions of the briefs

that have been properly prepared. (Rule 8.204(e)(2)(C).) Further, as we explain post,

due to the limited record and briefing deficiencies, our ability to provide detailed

background or to reach the merits of many of Bekono's arguments is restricted

accordingly.2

                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

       "Because this case comes before us after the trial court granted a motion for

summary judgment, we take the facts from the record that was before the trial court when




2      The brief Bekono filed with the clerk is not the same brief that he submitted
electronically. We have relied on the brief filed with the clerk.

                                              4
it ruled on that motion.' "3 (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-

717.) We consider all the evidence in the moving and opposing papers, except evidence

to which objections were made and sustained, liberally construing and reasonably

deducing inferences from Bekono's evidence, resolving any doubts in the evidence in his

favor. (Id. at p. 717; Code Civ. Proc., § 437c, subd. (c).)

       Bekono has not provided copies of his original or first amended complaints.

Minute orders in the record reflect that Bekono initiated the underlying action in March

2013, and defendants other than the Reed Group brought a successful demurrer and

motion to strike the first amended complaint with leave to amend as to some of the causes

of action.

       By augmentation, the Reed Group has provided us with a copy of Bekono's

verified second amended complaint (SAC) served in March 2014. Bekono alleged 36

causes of action, 10 of which included a claim against the Reed Group. Other named

defendants included Rohr, Inc., dba Goodrich Aerospace (Rohr);4 United Technologies

Corporation, dba UTC Aerospace Systems (UTC); Goodrich Corporation (Goodrich), the



3      In his opening brief, Bekono does not raise any issue as to the one cause of action
in a superseded complaint for which the Reed Group's demurrer was sustained without
leave to amend.

4      In the caption and body of the SAC, Bekono refers to this entity as "Rohr, Inc.,
dba Goodrich Aerostructures." In the paragraph of the complaint identifying the
defendants, Bekono refers to the entity as "Rohr, Inc., dba Goodrich Aerospace." In a
cross-complaint, Rohr, Inc. identifies itself as "Rohr, Inc., dba UTC Aerospace Systems."
These differences do not affect this appeal. As we explain in greater detail at footnote 9,
post, Rohr is not a party to this appeal.

                                              5
alleged parent of Rohr and UTC; more than 25 individuals, most of whom are alleged to

be employees of Rohr or UTC; and Donald Kripke, M.D., who is alleged to be " 'the

company psychiatrist.' " Bekono asserted numerous claims allegedly resulting from or

related to his employment by Rohr. As relevant to the Reed Group, Bekono asserted

claims based on the allegation that the Reed Group was a "third-party administrator"

hired by Rohr "to administer employee leave." More specifically, Bekono complained

that the Reed Group did not properly handle the medical leave he took in 2011 and 2012,

"conflating" his statutory rights (under the California Family Rights Act (CFRA, Gov.

Code, § 12945.2)) and the federal Family and Medical Leave Act (FMLA, 29 U.S.C.

§ 2601 et seq.) with his employer-sponsored rights to short-term disability benefits

(STD). The Reed Group demurred to the SAC.

       Meanwhile, before the court heard the Reed Group's demurrer to the SAC, other

defendants' demurrers to the SAC were sustained in part with leave to amend, and

Bekono served his verified third amended complaint (TAC) as to all parties on May 19,

2014. Four days later, on May 23, 2014, the parties filed a stipulation to dismiss, and the

court dismissed, various parties and causes of action from the TAC. From what we can

discern from the stipulation, the TAC named parties and asserted causes of action the

court had precluded in its prior rulings. After the dismissals effected by the stipulation

and order, the TAC contained three causes of action against the Reed Group related to its

handling of Bekono's medical leave: (1) the 14th cause of action for violation of Civil




                                              6
Code section 56.26;5 (2) the 16th cause of action for invasion of privacy; and the 17th

cause of action for libel.

       About a month later, in late June 2014, the court heard the Reed Group's demurrer

to the SAC, ruled that the filing of the TAC mooted the Reed Group's demurrer, and set a

hearing date two months later for the Reed Group's demurrer to the TAC. In late August

2014, the court heard the demurrer and: (1) sustained without leave to amend the general

demurrer to the cause of action for violation of the CMIA;6 (2) overruled the general

demurrer to the cause of action for defamation; and (3) sustained with leave to amend the

special demurrer to the cause of action for libel.7

       In early September 2014, Bekono filed his verified fourth amended complaint

(FAC), the operative complaint, in which he alleged the same basic underlying facts

related to the Reed Group as in the SAC, described ante. Bekono asserted two causes of

action against the Reed Group: (1) the 16th cause of action, for invasion of privacy; and


5      The Confidentiality of Medical Information Act (the CMIA) provides in part: "No
person or entity engaged in the business of furnishing administrative services to programs
that provide payment for health care services shall knowingly use, disclose, or permit its
employees or agents to use or disclose medical information possessed in connection with
performing administrative functions for a program, except as reasonably necessary in
connection with the administration or maintenance of the program, or as required by law,
or with an authorization." (Civ. Code, § 56.26, subd. (a).)

6      At the hearing, Bekono (through retained counsel) "concede[d] the demurrer on
this point."

7      Bekono did not include in the record on appeal any pleadings from the demurrer
proceedings. According to the court's minute order, in opposition to the Reed Group's
demurrer to the libel cause of action, Bekono requested leave to amend to clarify the
allegations as to each defendant.

                                              7
(2) the 17th cause of action, for libel. More specifically, Bekono alleged that, in

administering his claims for medical leave, the Reed Group: (1) violated Bekono's right

to privacy by "demanding, obtaining, sharing, fraudulently creating and using [Bekono's]

confidential information beyond the limits allowed by [the CMIA]"; and (2) conspired

with others to defame Bekono by "alter[ing] or caus[ing] to be altered [Bekono's] medical

information so as to insinuate or lend 'credence' to the knowingly false insinuations of

employees of [Rohr] that [Bekono] was suffering from an HIV/AIDS-related medical

condition and that [Bekono] presented a 'risk of harm to himself or others.' " The Reed

Group answered the FAC, denying all material allegations and asserting various

affirmative defenses.

       In October 2014, the Reed Group filed a motion for summary judgment as to the

FAC or, in the alternative, summary adjudication as to each of the two causes of action in

the FAC. In support, the Reed Group filed a separate statement of undisputed material

facts, a memorandum of points and authorities, five declarations, a request for judicial

notice, and a notice of lodgment of 32 exhibits. With regard to the cause of action for

invasion of privacy, the Reed Group argued Bekono could not maintain such a claim

based either on the mental health evaluation form submitted to the Reed Group on

Bekono's behalf by Bekono's doctor or on the Reed Group's internal absence report.

With regard to the cause of action for defamation, the Reed Group argued that it neither

disclosed Bekono's confidential information to Rohr nor obtained more medical

information than it was entitled to in processing Bekono's application for benefits. As to

both causes of action, the Reed Group presented evidence in support of its position and

                                             8
argued that Bekono did not have contradictory evidence that raised a triable issue of

material fact.

       The record on appeal does not contain any opposition by Bekono.8 The Reed

Group tells us that Bekono apparently "served, but did not file, an Opposition" in the trial

court. Our review of the record suggests that the trial court had before it written

opposition from Bekono.

       In reply to what Bekono served, the Reed Group filed a memorandum of points

and authorities, a declaration, replies to two separate statements, evidentiary objections,

and a notice of lodgment of an additional exhibit.

       The court entertained oral argument, took the matter under submission and later

issued a minute order granting the Reed Group's motion for summary judgment. More

specifically, the court denied Bekono's request for judicial notice, disregarded Bekono's

evidentiary objections, declined to consider arguments raised for the first time at the

hearing, sustained the Reed Group's evidentiary objections, and ruled as follows on the

merits of the motion: The Reed Group met its burden of demonstrating that Bekono

could not establish essential elements of his causes of action alleging invasion of privacy

and libel, but Bekono did not meet his responsive burden of establishing a triable issue of

material fact.



8     In support of his opening brief on appeal, Bekono filed a Notice of Lodgment.
However, because there is no indication that the 17 exhibits attached to the notice were
submitted to the trial court, we have not considered them on appeal. (Pulver v. Avco
Financial Services (1986) 182 Cal.App.3d 622, 632.)

                                              9
       In March 2015, the court filed a judgment, the Reed Group gave notice of its

entry, and Bekono timely appealed.9

                                            III.

                                      DISCUSSION

       Bekono presents seven arguments on appeal, six of which contend that the trial

court erred: (1) in sustaining the Reed Group's objections to the evidence submitted by

Bekono in opposition to the motion for summary judgment; (2) in granting the Reed

Group's motion for summary judgment; (3) in "[p]rematurely [r]elieving" the Reed Group

from the allegations in the FAC after granting the Reed Group's motion for summary

judgment; (4) in allowing the Reed Group to challenge Bekono's claims; (5) in failing to

recognize Bekono's claim for violation of the Tom Bane Civil Rights Act, Civil Code

section 52.1; and (6) in failing to rescind or void the transfer of Bekono's medical

information to the Reed Group. In a seventh argument, Bekono asks that we enter

judgment in his favor against the Reed Group. None of Bekono's arguments provides a

basis on which to reverse the judgment.

9       In his FAC, Bekono also alleged 20 causes of action against some or all of the
defendants in the SAC (listed ante), again naming Rohr, UTC, Goodrich, numerous
employees of Rohr or UTC, and Kripke. Rohr and two of its employees previously had
named Bekono in an amended cross-complaint. They filed a motion for summary
judgment on their amended cross-complaint, which the court granted at the same time it
granted the Reed Group's motion for summary judgment. Bekono appealed from the
order granting summary judgment on the amended cross-complaint, and the cross-
complainants filed a protective cross-appeal in the event the appellate court had
jurisdiction over Bekono's appeal. Those appeals were part of the present appeal. By
order filed May 26, 2015, Bekono's appeal from the grant of summary judgment on the
amended cross-complaint and cross-complainants' cross-appeal were dismissed for lack
of jurisdiction.

                                             10
A.     Bekono Did Not Meet His Burden of Establishing Reversible Error in the Grant of
       Summary Judgment (FAC's 16th & 17th Causes of Action)

       The trial court did not err either in sustaining the Reed Group's evidentiary

objections or in granting summary judgment.

       1.     Sustaining Evidentiary Objections

       The Reed Group filed 68 separately numbered, specifically identified evidentiary

objections to statements Bekono proffered in support of his opposition to the Reed

Group's motion for summary judgment, as follows: (1) three objections to Bekono's

declaration; (2) 57 objections to Bekono's separate statement in opposition to the Reed

Group's separate statement of undisputed material facts in support of its motion for

summary judgment; and (3) eight objections to Bekono's separate statement of issues of

material facts. Bekono did not include in the record on appeal copies of his declaration,

his responsive separate statement, or his separate statement.10 The trial court sustained

all of the Reed Group's evidentiary objections.

       We review for an abuse of discretion the trial court's ruling on the exclusion of

evidence in summary judgment proceedings. (Park v. First American Title Co. (2011)

201 Cal.App.4th 1418, 1427.) A trial court abuses its discretion only when, in its

exercise, the ruling is arbitrary or the trial court " 'exceeds the bounds of reason, all of the


10      Bekono does not explain the difference(s) between his two separate statements. In
its response to Bekono's separate statement of issues of material fact, the Reed Group
objected to the document on the basis that, since Bekono did not have pending a motion
for summary judgment, Bekono's 70 allegedly undisputed material facts should be
disregarded. The Reed Group nonetheless responded, asserting evidentiary objections to
all but one of Bekono's statements.

                                              11
circumstances before it being considered.' " (Shaw v. County of Santa Cruz (2008) 170

Cal.App.4th 229, 281 (Shaw).)

       To succeed on appeal, Bekono is required to establish, at a minimum: (1) where

in the record he demonstrated "[t]he substance, purpose, and relevance of the excluded

evidence was made known to the [trial] court" (Evid. Code, § 354, subd. (a)); (2) the

error in excluding the evidence; and (3) how the error resulted in a "miscarriage of

justice" (often referred to as prejudice) (Cal. Const., art. VI, § 13; Evid. Code, § 354).

(See Code Civ. Proc., § 475; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)11

For purposes of this analysis, a "miscarriage of justice" may be found on appeal " ' "only

when the court, 'after an examination of the entire cause, including the evidence,' is of the

'opinion' that it is reasonably probable that a result more favorable to the appealing party

would have been reached in the absence of the error." ' " (Pool, at p. 1069; accord, Code

11      "No judgment shall be set aside . . . in any cause, on the ground of . . . the
improper . . . rejection of evidence . . . , unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13, italics added.)
        A judgment shall be reversed "by reason of the erroneous exclusion of evidence
unless the court which passes upon the effect of the error or errors is of the opinion that
the error or errors complained of resulted in a miscarriage of justice and it appears of
record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was
made known to the court by the questions asked, an offer of proof, or by any other
means; . . . ." (Evid. Code, § 354, italics added.)
        ". . . No judgment, decision, or decree shall be reversed or affected by reason of
any error, ruling, instruction, or defect, unless it shall appear from the record that such
error, ruling, instruction, or defect was prejudicial, and also that by reason of such error,
ruling, instruction, or defect, the said party complaining or appealing sustained and
suffered substantial injury, and that a different result would have been probable if such
error, ruling, instruction, or defect had not occurred or existed. There shall be no
presumption that error is prejudicial, or that injury was done if error is shown." (Code
Civ. Proc., § 475, italics added.)

                                              12
Civ. Proc., § 475; San Diego Gas & Electric Co. v. Schmidt (2014) 228 Cal.App.4th

1280, 1301-1302.) In this context, "reasonably probable" means "more than an abstract

possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 (College

Hospital).) Prejudice is not presumed (Code Civ. Proc., § 475), and the appellant bears

the burden of establishing both "a clear case of abuse and miscarriage of justice." (Shaw,

supra, 170 Cal.App.4th at p. 281.) Bekono has not attempted to meet, let alone met,

these requirements.12

       Thus, on both procedural and substantive grounds, Bekono has not met his burden

of establishing a prejudicial abuse of discretion in the trial court's exclusion of the

evidence sustained by the Reed Group's objections.

       2.     Granting Summary Judgment

       We review de novo whether the trial court erred in granting the Reed Group's

motion for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,

860 (Aguilar).) A defendant is entitled to a summary judgment on the basis that the

"action has no merit" (Code Civ. Proc., § 437c, subd. (a)(1)) only where the court is able

to determine from the evidence presented that "there is no triable issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law" (id., § 437c,


12     As a related procedural issue, Bekono's presentation on appeal violates the general
rule that requires an appellate brief to support each point by reference to the record on
appeal. (Rule 8.204(a)(1)(C).) On appeal, the appellant has a duty " 'to refer the
reviewing court to the portion of the record which supports appellant's contentions on
appeal. [Citation.] If no citation "is furnished on a particular point, the court may treat it
as waived." ' " (Lonely Maiden Productions, LLC v. Golden Tree Asset Management, LP
(2011) 201 Cal.App.4th 368, 384.)

                                              13
subd. (c)). A cause of action "has no merit" if one or more of the elements of the cause of

action cannot be established, or if an affirmative defense to the cause of action can be

established. (Id., § 437c, subd. (o).)

       Thus, a defendant like the Reed Group has the burden of persuasion that one or

more elements of the cause of action at issue "cannot be established" or that "there is a

complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2);

Aguilar, supra, 25 Cal.4th at pp. 849, 850, 853-854.) In attempting to meet this burden,

the defendant has the initial burden of production to make a prima facie showing of the

nonexistence of any triable issue of material fact. (Aguilar, at p. 850.) If the defendant

meets this burden, then the burden of production shifts to the plaintiff to establish the

existence of a triable issue of material fact. (Id. at pp. 850-851.)

       In this appeal from the grant of a summary judgment, therefore, we determine first

whether the Reed Group's showing establishes an entitlement to judgment in its favor;

and if so, we then determine whether Bekono's showing establishes a triable issue of

material fact. (Garcia v. W&W Community Development, Inc. (2010) 186 Cal.App.4th

1038, 1042 (Garcia).)

              a.     16th Cause of Action — Invasion of Privacy

       The elements of a cause of action for a violation of the right to privacy under

article I, section 1, of the California Constitution13 are: "(1) a legally protected privacy


13     "All people are by nature free and independent and have inalienable rights.
Among these are enjoying and defending life and liberty, acquiring, possessing, and
protecting property, and pursuing and obtaining safety, happiness, and privacy." (Cal.
Const., art. I, § 1.)
                                              14
interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a

serious invasion of the privacy interest." (International Federation of Professional &

Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 338.)

As applicable to the present appeal, the legally protected interests include Bekono's right

to be free from (1) public disclosure of private facts, and (2) intrusion into his private

affairs.14 (Shulman, supra, 18 Cal.4th at p. 214.)

       The elements of a claim for public disclosure of private facts include " '(1) public

disclosure (2) of a private fact (3) which would be offensive and objectionable to the

reasonable person and (4) which is not of legitimate public concern.' " (Shulman, supra,

18 Cal.4th at p. 214.) The elements of a claim for intrusion into private affairs include:

"(1) intrusion into a private place, conversation or matter, (2) in a manner highly

offensive to a reasonable person." (Id. at p. 231.) Based on the allegations in the FAC,

Bekono contends that the Reed Group publicly disclosed private facts and intruded into

his private affairs by "demanding, obtaining, sharing, fraudulently creating and using

[Bekono's] confidential information beyond the limits allowed by [the CMIA]."15




14     Additional legally protectable interests, which are not at issue here, include
"presentation of the plaintiff to the public in a false light and appropriation of image or
personality." (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214, fn. 4
(Shulman).)

15     Although Bekono further alleges that the Reed Group "coerced" the commission
of these intrusions, he does not allege how it may have done so. In his opening brief
Bekono argues that "it is possible for a fact finder to determine that the Reed Group's use
of [the] STD form was indeed coercive," but Bekono does not direct us to evidence of
what he contends is the STD form or the Reed Group's use of it.
                                              15
       In support of its motion for summary judgment, the Reed Group presented

evidence that it neither obtained more medical information than it was entitled to nor

disclosed the information to anyone not entitled to it. As such, the Reed Group met its

initial burden of producing evidence that established a prima facie showing of the

nonexistence of any triable issue of material fact entitling it to judgment in its favor.

(Aguilar, supra, 25 Cal.4th at p. 850; Garcia, supra, 186 Cal.App.4th at p. 1042.)

       The burden of production then shifted to Bekono to establish the existence of a

triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851; Garcia, supra,

186 Cal.App.4th at p. 1042.) Because the record on appeal does not contain Bekono's

opposition to the Reed Group's motion, we have no choice but to conclude that Bekono

did not meet his responsive burden. (Maria P., supra, 43 Cal.3d at pp. 1295-1296;

Hernandez, supra, 78 Cal.App.4th at p. 502; Ballard, supra, 41 Cal.3d at p. 574.) At oral

argument, Bekono suggested that his presentation to the trial court at the hearing on the

Reed Group's motion included his substantive opposition to the motion. However,

Bekono's presentation to the trial court was not evidence — which is what was required

in opposition to the Reed Group's evidence of a prima facie showing of the nonexistence

of a triable issue of fact (Aguilar, supra, 25 Cal.4th at pp. 850-851) — since argument is

not evidence. (Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1433

(Villacorta).) For this reason, Bekono did not establish error in the grant of summary

judgment as to the 16th cause of action for invasion of privacy.




                                              16
              b.      17th Cause of Action — Defamation (Libel)

       The elements of a cause of action for libel under Civil Code sections 45 and 45a16

are "a written communication that is false, that is not protected by any privilege, and that

exposes a person to contempt or ridicule or certain other reputational injuries . . . ."

(Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242; see 5 Witkin, Summary of Cal. Law

(10th ed. 2005) Torts, § 529, p. 782.) Based on the allegations in the FAC, Bekono

contends that the Reed Group altered certain entries on his medical records and shared an

altered diagnosis with people at Rohr (his employer). More specifically, Bekono alleged

that the Reed Group altered forms signed by his treating psychiatrist such that they

indicated Bekono had " 'suicidal' and 'homicidal' ideations" based on a diagnosis of

"HIV/AIDS or 'post-viral asthenic syndrome' " and then forwarded these forms to

employees of Rohr in the course of administering Bekono's leave — thereby

"publish[ing]" these false " 'diagnoses' or 'observations' " to third parties.

       In support of it motion for summary judgment, the Reed Group presented evidence

both that it did not make any changes to the allegedly defamatory statements on the

documents and that it did not disclose the purportedly objectionable documents to anyone

at Rohr. As such, the Reed Group once again met its initial burden of producing

16     "Libel is a false and unprivileged publication by writing, printing, picture, effigy,
or other fixed representation to the eye, which exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a
tendency to injure him in his occupation." (Civ. Code, § 45.) "A libel which is
defamatory of the plaintiff without the necessity of explanatory matter, such as an
inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory
language not libelous on its face is not actionable unless the plaintiff alleges and proves
that he has suffered special damage as a proximate result thereof. . . ." (Id., § 45a.)

                                              17
evidence that established a prima facie showing of the nonexistence of any triable issue

of material fact entitling it to judgment in its favor. (Aguilar, supra, 25 Cal.4th at p. 850;

Garcia, supra, 186 Cal.App.4th at p. 1042.)

       The burden of production then shifted to Bekono to establish the existence of a

triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851; Garcia, supra,

186 Cal.App.4th at p. 1042.) Once again, because the record on appeal does not contain

Bekono's opposition to the Reed Group's motion, and because Bekono's oral presentation

to the trial court was not evidence (Villacorta, supra, 221 Cal.App.4th at p. 1433), we

have no choice but to conclude that Bekono did not meet his responsive burden.

(Maria P., supra, 43 Cal.3d at pp. 1295-1296; Hernandez, supra, 78 Cal.App.4th at

p. 502; Ballard, supra, 41 Cal.3d at p. 574.)

       In his opening brief on appeal, Bekono presents the following six arguments that

are not based on evidence:17 "defendant's claim of innocent motive or mere repetition of

the code provided by treating physician or good faith does not establish a defense for

libel per se"; "creation of business record[s], even for internal consumption is publication

per se"; "the filling [sic] of this complaint and disclosure of DiLorenzo's[18] defamatory



17     On occasion Bekono cites to the reporter's transcript or to the (verified) FAC.
However, "the argument of [a party] does not constitute evidence." (Beagle v. Vasold
(1966) 65 Cal.2d 166, 176; Villacorta, supra, 221 Cal.App.4th at p. 1433 [same].) Also,
"a party cannot rely on the allegations of his own pleadings, even if verified, to make or
supplement the evidentiary showing required in the summary judgment context."
(College Hospital, supra, 8 Cal.4th at p. 720, fn. 7, italics added.)

18    At the relevant times, Kristi DiLorenzo was a nurse case manager with the Reed
Group.
                                              18
statement in this litigation is actionable as compelled self-publication"; "publication in

defamation can be proven by the defamed employee's testimony of his or her

knowledge"; "publication of defamation may be proven by hearsay since publication is an

operative fact"; and "DiLorenzo's publications motivated by malice." (Capitalization

omitted.) However, Bekono forfeited any right he may have had to assert such arguments

by not demonstrating that he preserved them for appeal by raising them first in the trial

court.19 (Dietz, supra, 177 Cal.App.4th at p. 798.) Even if we assume that these

arguments are purely legal, we decline to exercise our discretion to consider them,

because none involves a recognized exception to the forfeiture rule. (Id. at p. 800.) In

any event, we note that none of the six arguments raises a triable issue of material fact in

response to the Reed Group's evidence that the Reed Group did not make any changes to

the allegedly defamatory statements on the documents or that the Reed Group did not

disclose the purportedly objectionable documents to anyone at Rohr.

       For these reasons, Bekono did not establish error in the grant of summary

judgment as to the 17th cause of action for libel.

B.     Additional Arguments

       In somewhat of a scattershot approach, Bekono presents five arguments that are

not responsive to the grant of summary judgment. Once again, because Bekono has not

demonstrated that he preserved these arguments for appeal by first raising them in the

trial court, he has forfeited appellate review (Dietz, supra, 177 Cal.App.4th at p. 798);

19     Of note, at page 31 of his opening brief, Bekono expressly acknowledges this rule
of appellate procedure, citing a 1948 Court of Appeal opinion.

                                             19
and none involves a recognized exception to the forfeiture rule (id. at p. 800).

Nonetheless, we will deal briefly with each of the contentions.

       First, Bekono argues that the trial court erred in "prematurely relieving [the Reed

Group] from all allegations following its [summary judgment] ruling." (Capitalization

omitted.) More specifically, Bekono contends that, because he used the (plural) word

"defendants" throughout the FAC, the Reed Group is not "exclude[d] . . . from any

allegation" in the remaining 18 causes of action in the FAC. While the FAC may contain

allegations relating to the Reed Group in other causes of action, Bekono clearly labeled

each defendant he intended to name in each cause of action, and the Reed Group is not

named in any of the causes of action other than the 16th (for invasion of privacy) and

17th (for libel). In response to a related argument, we cannot accept Bekono's position

that the causes of action against the " 'Employer Defendant[s]' " also apply to the Reed

Group, because in the FAC Bekono expressly defined " 'Employer Defendants' " to

include only Rohr and UTC. Bekono further suggests that, on appeal, we must consider

true all material allegations in the FAC and determine whether he has stated, or could

possibly state, a cause of action under any legal theory. To the extent authority exists for

such a contention — and we express no opinion — the case cited by Bekono is

distinguishable on the basis it involved an appeal of a dismissal of an action after the

court sustained a demurrer without leave to amend. (Pollack v. Lytle (1981) 120

Cal.App.3d 931, 936.) Bekono has not cited authority, and we are aware of none, for

application of this principle in an appeal, as here, following the grant of a summary

judgment.

                                             20
       Second, Bekono argues that the Reed Group "forfeited any unchallenged

allegations or causes of action." (Capitalization omitted.) According to Bekono, the

Reed Group "understood or should have reason to understand that as co-defendant to the

complaint, all causable and properly pleaded allegations applied to it." As we just

explained, however, by expressly naming specific defendants in specific causes of action

— as Bekono does in the FAC — the claims in those causes action are not alleged against

any other defendant.

       Third, Bekono argues that the Reed Group's "polices and practice [are] tantamount

to interference with civil rights by threats, intimidation, coercion and constitute[] a cover-

up of Rohr's unlawful conduct (aiding and abetting)." (Capitalization omitted.) His

argument is based on a cause of action under Civil Code section 52.1, which allows for

the recovery of damages or injunctive relief by an individual whose constitutional or

statutory rights have been violated by threats, intimidation or coercion. (See Jones v.

Kmart Corp. (1998) 17 Cal.4th 329, 338 [§ 52.1 is a civil rights statute enacted "to stem a

tide of hate crimes"].) Once again, however, because Bekono has not asserted a claim

against the Reed Group for a violation of section 52.1, there was no such claim for the

Reed Group to defend against and there is no ruling of the trial court related to such a

claim for us to review on appeal.

       Fourth, Bekono contends the trial court erred in granting summary judgment

because the "transfer of medical information to [the] Reed Group should be rescinded or

void." (Some capitalization omitted.) In support of his position, Bekono analogizes his

written authorization for the Reed Group's access and use of his medical information to a

                                             21
contract. He then argues that, because he never had the requisite "consent . . . or mutual"

assent to contract, he is entitled to rescind or void his written authorization. He bases the

purported lack of consent on legal concepts associated with duress, menace and undue

influence/constructive fraud. The problem with this argument, as with the preceding few

arguments, is that the only causes of action Bekono asserted against the Reed Group in

the FAC were for invasion of privacy and libel.20 Thus, with regard to rescission based

on duress, menace or undue influence/constructive fraud, the Reed Group was not called

on to respond to such a claim, the trial court was not called on to rule on such a claim,

and there is no decision as to such a claim for us to review on appeal.

       Finally, in the summary of arguments in his opening brief, Bekono asks us to enter

a judgment in his favor against the Reed Group "on all allegations of interference with

civil rights afforded by the FMLA/CFRA as a matter of law." Although such a claim

may have been included in the SAC, before the Reed Group was required to answer the

SAC Bekono filed the TAC (and ultimately the FAC), which did not include such a claim

against the Reed Group. In any event, Bekono misunderstands the role of this court in

civil appeals: We do not issue judgments on superior court complaints in the first

instance.




20     In the TAC, Bekono also alleged a cause of action against the Reed Group for
violation of Civil Code section 56.26. (See fn. 5, ante.) The trial court sustained the
Reed Group's demurrer to this cause of action without leave to amend, and on appeal
Bekono raises no issues or arguments as to this ruling.

                                             22
                                 DISPOSITION

     The judgment is affirmed.



                                               IRION, J.

WE CONCUR:



McINTYRE, Acting P. J.



AARON, J.




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