Filed 2/29/16 Ingrande v. Home Depot. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



MICHAEL INGRANDE,                                                   D066532

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2012-00092898-CU-WT-CTL)
HOME DEPOT U.S.A., INC.,
                                                                    ORDER MODIFYING OPINION
         Defendants and Respondents.
                                                                    NO CHANGE IN JUDGMENT



         THE COURT:

         It is ordered that the opinion filed herein on February 23, 2016, be modified as

follows:

         1. On page 1, in the counsel listing for Defendants and Respondents, "Akin Gump

Strauss Hauer & Feld and Rex S. Heinke" is added so the sentence reads:

         "Ogletree, Deakins, Nash, Smoak & Stewart, Michael J. Sexton, James T. Conley,

Christian A. Hickersberger; Akin Gump Strauss Hauer & Feld and Rex S. Heinke for

Defendants and Respondents.
      There is no change in the judgment.




                                                McDONALD, Acting P. J.

Copies to: All parties




                                            2
Filed 2/23/16 Ingrande v. Home Depot CA4/1 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



MICHAEL INGRANDE,                                                   D066532

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2012-00092898-CU-WT-CTL)
HOME DEPOT U.S.A., INC.,

         Defendants and Respondents.


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

Hayes, Judge. Affirmed in part and reversed in part.

         Mirch Law Firm, Kevin J. Mirch, Marie C. Mirch and Erin E. Hanson for Plaintiff

and Appellant.

         Ogletree, Deakins, Nash, Smoak & Stewart, Michael J. Sexton, James T. Conley

and Christian A. Hickersberger for Defendants and Respondents.

         Plaintiff Michael Ingrande was employed by defendant Home Depot U.S.A., Inc.

(Employer) for more than 22 years, rising to the position of assistant store manager,

before his employment was terminated by Employer in 2011. Employer's stated reason
for terminating Ingrande's employment was that he violated rules governing safe

operations for Employer's stores by either directing or knowingly permitting an employee

under his supervision to enter a trash compactor despite warning signs against entry and

the risks to the employee posed by that conduct. Ingrande disputed his employment was

terminated for that incident. Instead, his lawsuit claimed Employer terminated his

employment without cause, in violation of his implied contractual rights, and/or because

of his age and/or gender and/or as retaliation for his "whistle blowing" in violation of

public policy, asserting the stated reason for Employer's decision to terminate his

employment (the trash compactor incident) was pretextual. He also alleged claims for

fraud, unpaid wages, slander and libel (as against both Employer and several named

individual defendants), and sought punitive damages.

       Employer, and the individually named defendants, moved for summary judgment

on all of Ingrande's pleaded claims and alternatively sought summary adjudication on

each claim. Ingrande opposed the motion, asserting triable issues of material fact

precluded summary judgment. The trial court entered summary judgment against

Ingrande, and this appeal followed.




                                             2
                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

      A. Factual Background1

      The Employment Contract and Work Standards

      When Ingrande applied for employment with Employer in 1988, the application he

signed expressly provided his employment would be "at-will" and could be terminated by

either party at any time, for any reason, without notice or cause. The Employee's

Handbook issued by Employer, which Ingrande affirmatively alleged was binding,2 also

explicitly stated his employment was "at-will."

      At the time he was hired, Ingrande underwent an orientation at which Employer's

policies and procedures were explained to him. Employer's "Code of Conduct" included

guidelines describing conduct that would constitute a "Major Work Rule Violation,"

among which were "[a]ssigning work that places associates at risk of serious harm . . .

whether or not such harm or damage occurs," or "knowingly allowing associates to

perform work or assignments under unsafe conditions," or "directing any associate to

1      The facts we recite are drawn from Employer's separate statement of undisputed
material facts. Although Ingrande's opposition to Employer's summary judgment motion
claimed these facts were "disputed," our review of the record confirms he did not dispute
the factual statements, but only claimed other facts undermined the legal impact of the
facts on which Employer relied.

2     Ingrande's third amended complaint apparently alleged he and Employer were
bound by the employee handbook. Although he deleted that allegation from the fourth
amended complaint (FAC), the operative iteration of his complaint at which the summary
judgment motions were directed, the deletion did not relieve Ingrande of that judicial
admission. (See generally Thurman v. Bayshore Transit Management, Inc. (2012) 203
Cal.App.4th 1112, 1157-1158.)
                                            3
violate company safety standards." These "Major Work Violations" would normally

subject the offender to employment termination for a first offense.

       Employer also had written "Critical Operating Safety Standards" that included the

admonition "[n]ever enter or reach into the compactor for any reason." Those same

standards reiterated that "directing any associate to violate company safety standards,"

including "[e]ntering the compactor for any reason," constituted a "Major Work

Violation" normally subjecting the offender to employment termination for a first

offense.

       The Termination

       On the evening of February 18, 2011, Ingrande was the assistant store manager for

a Home Depot store in San Diego, California. That evening, Ingrande called Mr. Peralta

(the store manager) and told Mr. Peralta that an hourly employee, Mr. Jones, had gone

into the trash compactor at the store ("the trash compactor incident"). Peralta reported the

trash compactor incident to Mr. Campeau, the manager for Employer's "Associate Advice

and Counsel Group" (AACG). The AACG consults with district and/or regional staff

about, and provides recommendations concerning, potential discipline. After an

investigation by Campeau concerning the incident,3 including Campeau's review of

photographs and a video depicting the incident and his review of the written statements

from Jones and Ingrande about the incident that appeared to be consistent with the video

3      In opposing the motion for summary judgment, Ingrande did not contest the fact of
the investigation by Campeau, but instead claimed the investigation as conducted by
Campeau was inadequate.

                                             4
depiction of the incident, Campeau concluded that (at a minimum) Ingrande knowingly

permitted Jones to enter the trash compactor, and may have affirmatively instructed or

asked Jones to enter the trash compactor.

       Based on his review of the incident, Campeau concluded Ingrande violated

Employer's workplace safety rules and recommended Ingrande's employment be

terminated.4 On February 24, 2011, Campeau discussed his findings and

recommendations with Danielle Tillman (the regional human resources director for the

Pacific South region). Tillman concurred that termination of Ingrande's employment was

appropriate.

       Employer's records indicate that, on March 1, 2011, Ingrande contacted the AACG

department to ask about discipline for entering a trash compactor. He spoke with Ms.

Quattlebaum, who told Ingrande it was a major violation subject to employment

termination for a first offense. Employer's records also indicate, later that day, Ingrande

called back to the AACG department and told Employer he was taking a medical leave of

absence due to stress.5 When Ingrande returned from his leave of absence on April 25,

2011, Employer informed him his employment was to be terminated.



4       Campeau found Jones also violated safety rules. Campeau concluded that,
although Jones (an hourly associate) could also have been discharged for this violation, a
"final counseling" should be issued to Jones under the circumstances.

5     The records of Ingrande's March 1 calls indicate he expressed concerns that a
Mr. Powers did not like Ingrande's performance and Ingrande was concerned his
employment would be terminated, but those records contain no indication Ingrande raised
concerns about discrimination, harassment, retaliation, or safety violations at his store.
                                             5
       B. The Lawsuit

       Ingrande filed this action against Employer and the other defendants alleging a

variety of factual claims and legal theories. However, the overarching theory of

Ingrande's complaint appears to have been that his job performance made him a threat to

one of his superiors (Mr. Powers) because (1) Ingrande's exceptional job performance

made him a potential competitor to Powers for job promotions and (2) Ingrande's

complaints about safety violations would have harmed Powers's stature because

remedying those violations could reduce the profitability of stores under Powers's

supervision. Ingrande alleged Powers and others began a smear campaign directed at

undermining his position with Employer, including falsely attributing responsibility for

the trash compactor incident to Ingrande, and falsely claiming he was a violent person

who had assaulted or threatened others. Ingrande asserted his employment was

terminated without cause because he did not direct or knowingly permit Jones to violate

safety standards, and any evidence supporting that claim was manufactured to justify his

employment termination. He also alleged Employer fired him because Employer wanted

to replace him with someone both younger than Ingrande and female.

       The factual allegations contained in Ingrande's fourth amended complaint (FAC)

formed the basis for 11 causes of actions. The first cause of action, for breach of implied

contract, essentially alleged Employer's conduct and policies gave rise to an implied

obligation it would not terminate Ingrande's employment without adequate cause and that

the facts on which it based its decision to terminate Ingrande's employment did not


                                             6
constitute adequate cause because he did not violate Employer's standards of conduct.

Ingrande's seventh through 11th causes of action essentially alleged Employer harassed

Ingrande and terminated his employment in violation of public policy, including (1)

harassing and terminating him in retribution for exposing Employer's improper or

unlawful conduct (seventh through ninth causes of action), (2) terminating him because

of his age (seventh and 10th causes of action), and (3) terminating him because of his

gender (11th cause of action).

      Ingrande also alleged several tort claims. The second and third causes of action,

sounding in fraud, alleged Employer made numerous representations as to the advantages

of working for Employer on which Ingrande relied, but these representations were false

and caused injury to Ingrande. The fourth and fifth causes of action, sounding in

defamation, alleged Employer and several individual defendants made numerous false

and injurious statements (both orally and in writing) impugning Ingrande's conduct and

character. Ingrande also asserted a wage claim alleging Employer was required to, but

did not, pay him for overtime.

      C. The Summary Judgment Motion and Rulings

      Employer moved for summary judgment or, in the alternative, summary

adjudication as to each claim contained in Ingrande's FAC. By separate motion, the

individual defendants moved for summary judgment or (in the alternative) summary

adjudication on the libel and slander claims. Ingrande filed opposition to both motions,




                                            7
asserting triable issues of fact precluded summary adjudication on any of his claims, and

therefore necessarily precluded entry of summary judgment.

       Ruling on Individual Defendants' Motion

       The court, after sustaining numerous evidentiary objections by defendants to the

evidence proffered by Ingrande in opposition to the summary judgment motions,6

granted summary judgment in favor of the individual defendants on Ingrande's claims for

libel and slander. The court noted the individual defendants' motion argued (1) Ingrande

did not have admissible evidence supporting his pleaded defamation claims, (2) many of

the pleaded defamatory statements were true and/or privileged, and (3) Ingrande had no

evidence of malice. The court then found Ingrande's opposition, which "relies in large

measure on the allegations of his complaint, general statements by unidentified and

unspecified declarants, unsupported argument and purported evidence in his points and

authorities, and on Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255," did not create

a triable issue of material fact as to any of the individual defendants' undisputed facts.

After explaining the inapplicability of Rifkind, the court concluded Ingrande's showing

was inadequate to defeat the showing by the individual defendants that the defamation




6      On appeal, Ingrande makes no claim any of the evidentiary rulings was erroneous,
and we therefore may disregard all of the evidence as to which the objections were
sustained in our assessment of whether the order granting summary judgment was proper.

                                              8
claims were without merit, and granted the individual defendants' summary judgment

motion.7

       Employer's Motion

       The court next examined Employer's motion for summary judgment, and again

concluded Employer met its initial burden of demonstrating the undisputed facts

warranted judgment against Ingrande on his pleaded claims, and his opposition did not

create a triable issue of material fact as to any of the undisputed facts on which

Employer's motion for summary judgment was premised.8 The court granted summary

adjudication in favor of Employer on each of the 11 causes of action stated against it and,

because those rulings disposed of the entirety of the action as against Employer, the court

ordered the complaint dismissed. Following Ingrande's unsuccessful motion for

reconsideration, the court entered judgment in favor of Employer and the individual

defendants, and Ingrande timely appealed.




7      The court also granted Employer's motion for summary adjudication on the
defamation claims. Employer argued the undisputed facts showed Employer could only
be vicariously liable for the statements of the individual defendants and, because
summary adjudication of the claims against the individual defendants was warranted,
Employer was also entitled to summary adjudication insofar as Ingrande's alleged
defamation claims against Employer derived from the statements of the individual
defendants.

8      Because Ingrande challenges most of the court's rulings in this appeal, we
separately detail the showings below on each cause of action, and rulings thereon, when
evaluating Ingrande's appellate claims as to those separate causes of action.
                                              9
                                                II

                                   LEGAL FRAMEWORK

       "The purpose of the law of summary judgment is to provide courts with a

mechanism to cut through the parties' pleadings in order to determine whether, despite

their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 843.) "A trial court properly grants summary

judgment where no triable issue of material fact exists and the moving party is entitled to

judgment as a matter of law. [Citation.] . . . In the trial court, once a moving defendant

has 'shown that one or more elements of the cause of action, even if not separately

pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of

a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations

or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a

triable issue of material fact exists as to that cause of action . . . .' " (Merrill v. Navegar,

Inc. (2001) 26 Cal.4th 465, 476-477.) Code of Civil Procedure section 437c, subdivision

(o), provides that a cause of action has no merit if: (1) one or more elements of that cause

of action cannot separately be established; or (2) a defendant establishes an affirmative

defense to that cause of action. A defendant need not conclusively negate an element of

the plaintiff's cause of action, but must only show that one or more of its elements cannot

be established. (Aguilar, at p. 853.) "There is a triable issue of material fact if, and only

if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor

of the party opposing the motion in accordance with the applicable standard of proof."


                                               10
(Id. at p. 850, fn. omitted.) Although "the court may not weigh the plaintiff's evidence or

inferences against the defendants' as though it were sitting as the trier of fact, it must

nevertheless determine what any evidence or inference could show or imply to a

reasonable trier of fact." (Id. at p. 856.) "If [the] party moving for summary judgment

. . . would prevail at trial without submission of any issue of material fact to a trier of fact

for determination," the motion should be granted. (Id. at p. 855.)

       "On appeal after a motion for summary judgment has been granted, we review the

record de novo, considering all the evidence set forth in the moving and opposition

papers except that to which objections have been made and sustained." (Guz v. Bechtel

National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) "On appeal, we exercise 'an

independent assessment of the correctness of the trial court's ruling, applying the same

legal standard as the trial court in determining whether there are any genuine issues of

material fact or whether the moving party is entitled to judgment as a matter of law.'

[Citation.] 'The appellate court must examine only papers before the trial court when it

considered the motion, and not documents filed later. [Citation.] Moreover, we construe

the moving party's affidavits strictly, construe the opponent's affidavits liberally, and

resolve doubts about the propriety of granting the motion in favor of the party opposing

it.' " (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)




                                              11
                                              III

                   CLAIMS AGAINST INDIVIDUAL DEFENDANTS

       A. Background and Ruling

       Ingrande's claims against the individual defendants for defamation asserted these

defendants stated, either orally (the fourth cause of action for slander) or in writing (the

fifth cause of action for libel), that (1) Ingrande was having sexual relations with an

employee, independent contractor or customer; (2) Ingrande had a violent temper, carried

a concealed weapon, was dangerous, and an armed security guard had been hired to

protect associates against potential harm; (3) Ingrande "must have been on drugs"; and

(4) Ingrande did not enforce Employer's safety rules and regulations. Ingrande also

claimed they made false statements about him in his performance reviews.

       In their motion for summary judgment on the defamation claims, the moving

individual defendants, in their separate statement of undisputed material facts,

demonstrated one of the specified statements (that Ingrande was having sexual relations

with an independent contractor) was true, and Ingrande's opposition to the motion

conceded the statement was true. The moving individual defendants, in their separate

statement of undisputed material facts, also cited Ingrande's admissions in his deposition

that he had no competent evidence the remaining statements had been uttered by any of

the individual defendants, and Ingrande's opposition to the motion apparently failed to

rebut this showing.




                                              12
       The court granted summary judgment in favor of the individual defendants on

Ingrande's claims for libel and slander. The court found the individual defendants met

their initial burden of demonstrating (1) Ingrande did not have admissible evidence

supporting his pleaded defamation claims, (2) many of the pleaded defamatory statements

were true and/or privileged, and (3) Ingrande had no evidence of malice. The court then

found Ingrande's opposition did not create a triable issue of material fact as to any of the

individual defendants' undisputed facts and, because his showing was inadequate to

defeat the showing by the individual defendants that the defamation claims against the

individual defendants were without merit, the court granted the individual defendants'

summary judgment motion.

       B. Analysis

       On appeal, Ingrande's brief is devoid of any effort to demonstrate what triable

issue of material fact existed as to whether the defamatory statement regarding Ingrande's

sexual relations with an independent contractor was untrue, and Ingrande has not

attempted to show triable issues of material facts existed as to whether the individual

defendants actually made the remaining specified defamatory statements. Accordingly,

we conclude any claim of error regarding entry of summary adjudication as to Ingrande's

claims, insofar as the claims rested on the identified defamatory statements, is waived.9



9      Even though our review is de novo, it is limited to issues adequately raised and
supported in appellants' briefs. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn.
6.) We begin with the presumption the judgment appealed from is correct (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564) and adopt all intendments and inferences to
affirm the judgment unless the record expressly contradicts them. (See, e.g., Brewer v.
                                             13
       Ingrande instead limits his argument on appeal to the claim that entry of summary

adjudication on the libel and slander claims was improper because his defamation claims

pleaded defamatory statements by the individual defendants not addressed when the

individual defendants moved for summary judgment, and summary adjudication is

improper when it does not completely dispose of a cause of action. We reject Ingrande's

claim, for several reasons. First, at trial, Ingrande's opposition to the individual

defendants' motion for summary judgment contains no reference to this argument, and it

is therefore waived. (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131

Cal.App.4th 1466, 1488-1489.) Second, even had it been preserved, it is without merit.

Ingrande's opening brief identifies only one defamatory statement10 allegedly




Simpson (1960) 53 Cal.2d 567, 583.) These rules place on an appellant the burden of
overcoming the presumption of correctness, even when the appellate court is required to
conduct a de novo review, and " '[t]he reviewing court is not required to make an
independent, unassisted study of the record in search of error or grounds to support the
judgment. It is entitled to the assistance of counsel. Accordingly every brief should
contain a legal argument with citation of authorities on the points made. If none is
furnished on a particular point, the court may treat it as waived, and pass it without
consideration.' [Citation.] [¶] It is the duty of appellants' counsel, not of the courts, 'by
argument and the citation of authorities to show that the claimed error exists.' " (Sprague
v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050 (Sprague).)

10     Ingrande's opening brief purports to identify a second defamatory statement not
addressed by the individual defendants' motion for summary judgment—that he "violated
safety standards"—but his opening brief contains a citation to the record that contains no
mention of this alleged defamatory statement, and we accordingly will not further
consider it. (Sprague, supra, 166 Cal.App.3d at p. 1050; accord, United States v. Dunkel
(7th Cir. 1991) 927 F.2d 955, 956 [arguments can be deemed waived when inadequately
developed or supported because "[j]udges are not like pigs, hunting for truffles buried in
briefs"].)

                                              14
"unaddressed" by the individual defendants' motion:11 that various individual defendants

falsely accused Ingrande of having sexual relations with "employees, independent

contractors, or customers." That statement was specifically addressed in the individual

defendants' motion for summary judgment, including showing Ingrande admitted he was

in a sexual relationship with a female independent contractor. We conclude Ingrande has

not shown the order granting summary judgment in favor of the individual defendants

was error.

                                            IV

                            CLAIMS AGAINST EMPLOYER

       A. Defamation

       Ingrande's FAC also appeared to allege claims for defamation against Employer

premised on statements apart from and in addition to those attributed by Ingrande to the

individual defendants, and therefore pleaded defamation claims against Employer that

would not have been encompassed by the court's summary judgment in favor of the




11     We recognize that Ingrande, for the first time in his reply brief, asserts the "most
egregious defamatory statement[]" was that Ingrande was in the parking lot with a gun
and threatened Mr. Peralta. Although that statement was not addressed in the individual
defendants' motion for summary judgment, Ingrande has not identified where his
complaint alleges that statement was made and our independent search could not unearth
it. Moreover, even assuming that statement is somewhere alleged by Ingrande as a
defamatory statement and that statement had not been addressed in the individual
defendants' motion for summary judgment, Ingrande's election to ignore that defect until
his reply brief waives any argument that reversal of order granting the motion of the
individual defendants may be predicated on that alleged defect. (Katelaris v. County Of
Orange (2001) 92 Cal.App.4th 1211, 1216, fn. 4.)

                                            15
individual defendants.12 Although Ingrande's brief on appeal is somewhat opaque, it

appears he argues the court's summary adjudication in favor of Employer on Ingrande's

"additional" defamation claims against it was error. We separately assess the ruling on

those aspects of Ingrande's claims of error.

       Background and Ruling

       Employer's motion asserted Ingrande had no admissible evidence many of the

allegedly "additional" defamatory statements were made (e.g., he was violent and carried

a gun, or he must have been on drugs, or he failed to follow rules and regulations, or

employees feared him), and the only admissible evidence possessed by Ingrande of

harmful statements were statements that were true (he was having a sexual affair with a

person hired by Employer, Employer hired a guard because they were concerned

Ingrande might harm others at the store, and his employment was terminated because

Employer believed he violated its safety policies). The trial court agreed Ingrande had

not demonstrated a triable issue of fact existed, and therefore granted summary

adjudication as to these defamation claims asserted against Employer.




12     To the extent Ingrande's defamation claims against Employer rested on the
individual defendants' defamatory statements, our conclusion that summary judgment
was properly entered in favor of the individual defendants necessarily supports entry of
summary adjudication in favor of Employer. (Cf. Lathrop v. HealthCare Partners
Medical Group (2004) 114 Cal.App.4th 1412, 1423 ["Under the doctrine of respondeat
superior . . . [citations] [t]he employer's liability is wholly derived from the liability of the
employee. The employer cannot be held vicariously liable unless the employee is found
responsible."].)

                                               16
       Analysis

       On appeal, Ingrande makes no effort to demonstrate why the two arguments

posited by Employer below—he did not have admissible evidence as to some of the

statements and the other identified statements were true—would not support entry of

summary adjudication on his "additional" defamation claims against Employer. Instead,

Ingrande merely asserts entry of summary adjudication on the libel and slander claims

was improper because his defamation claims pleaded defamatory statements not

addressed by Employer's motion for summary judgment, and summary adjudication is

improper when it does not completely dispose of a cause of action. However, Ingrande's

opening brief identifies only a single defamatory statement purportedly pleaded but left

unaddressed by the Employer's motion for summary adjudication on the defamation

claims: that he "violated safety standards." However, because his opening brief cites only

a portion of the record containing no mention of this alleged defamatory statement, we

need not further consider it. (Sprague, supra, 166 Cal.App.3d at p. 1050; United States v.

Dunkel, supra, 927 F.2d at p. 956.) As stated in Lewis v. County of Sacramento (2001)

93 Cal.App.4th 107, 116, although we review de novo an order granting summary

judgment, "this de novo review does not obligate us to cull the record for the benefit of

the appellant in order to attempt to uncover the requisite triable issues. As with an appeal

from any judgment, it is the appellant's responsibility to affirmatively demonstrate error

and, therefore, to point out the triable issues the appellant claims are present by citation to

the record and any supporting authority. In other words, review is limited to issues which


                                              17
have been adequately raised and briefed." Because Ingrande has not satisfied this burden

on appeal, we do not further consider his only argument asserting it was error to grant

summary adjudication on his claims for defamation as against Employer.

       B. Breach of Implied Contract

       Ingrande's FAC, in its first cause of action for breach of implied contract, asserted

a claim that his employment was terminated without cause in breach of an implied

covenant of his employment contract with Employer that his employment would only be

terminated for cause. Ingrande argues the court erred when it entered summary

adjudication on this claim, arguing (1) he demonstrated triable issues of material fact on

whether his at-will employment contract included an implied covenant restricting

Employer to terminating his employment only for cause, and (2) he demonstrated triable

issues of material fact on whether Employer had cause to terminate his employment.

       Background

       Employer's motion for summary judgment argued Ingrande's employment

agreement, which California law ordinarily presumes to be at will (Guz, supra, 24 Cal.4th

at p. 335), was expressly an at-will contract. Employer showed Ingrande's employment

application (as well as the governing Employee Handbook that Ingrande judicially

admitted was binding on him) explicitly verified the parties understood and expressly

agreed Ingrande was an at-will employee.13 Employer argued Ingrande had no evidence


13     The language of his employment application expressly stated: "I understand that
employment at Home Depot, if offered, is for no definite term and it may be terminated,
with or without cause or notice, at any time . . . . I further understand that this condition
                                              18
creating a triable issue of fact of whether this express at-will contract had been

supplanted by a contract limiting Employer's right to terminate his employment, and

therefore Ingrande's breach of contract claim failed as a matter of law. Employer

alternatively argued that, even if Ingrande could raise a triable issue of fact that Employer

needed cause to terminate his employment, the undisputed facts showed Employer

honestly concluded Ingrande violated its safety guidelines, and an employer's belief that

the requisite cause to terminate exists (even if ultimately incorrect) cannot give rise to

liability if that belief was held honestly based on the facts revealed by an appropriate

investigation. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 438-439

["The question critical to UPS's liability is not whether plaintiff in fact violated the

integrity policy by encouraging a subordinate to falsify his timecard, but whether UPS,

acting in good faith following an appropriate investigation, had reasonable grounds for

believing plaintiff had done so."] (King).)

       The trial court recognized Ingrande's claim for breach of implied contract was

premised on a predicate—he was not an "at-will" employee but instead could only be

terminated for cause—and on the assertion there was a triable issue of fact of whether

Employer had cause to terminate his employment. The court, applying Guz, supra, 24

Cal.4th 317, concluded Ingrande's express contract declared he was an at-will employee



can only be altered by a written contract of employment . . . signed by both me and the
President of the Company. [¶] I hereby further acknowledge that I am expected to abide
by all Company rules and regulations . . . but that such rules and regulations do not create
a contract between me and the Company or otherwise restrict the right of the Company to
terminate my employment. . . ."
                                              19
and the facts cited by Ingrande to overcome the express at-will contract were inadequate

to limit Employer's right to terminate his employment without cause. The court

alternatively concluded, even if Ingrande had created a triable issue of fact on whether his

employment could not be terminated without cause, the undisputed facts showed the trash

compactor incident (if it occurred) would provide cause to terminate Ingrande's

employment, and Employer investigated the incident and reasonably believed the

incident occurred. Ingrande asserts the trial court erred as to both determinations.

       Analysis of "At-will" Holding

       Our Supreme Court in Guz recognized there is a presumption an employment

contract is at will but cautioned that although "the statutory presumption of at-will

employment is strong, it is subject to several limitations." (Guz, supra, 24 Cal.4th at

p. 335.) Guz explained the parties may agree to depart from an at-will agreement, either

expressly or by an agreement that is "implied in fact, arising from the parties' conduct

evidencing their actual mutual intent to create such enforceable limitations. [Citing Foley

v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680.] In Foley, we identified several

factors, apart from express terms, that may bear upon 'the existence and content of an . . .

[implied-in-fact] agreement' placing limits on the employer's right to discharge an

employee. [Ibid., italics added by Guz.] These factors might include ' "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." ' " (Guz, at pp. 336-337.)


                                             20
       "However, ' "[t]here cannot be a valid express contract and an implied contract,

each embracing the same subject, but requiring different results.' [Citations.] The

express term is controlling even if it is not contained in an integrated employment

contract. [Citation.] Thus, the . . . at-will agreement precluded the existence of an

implied contract requiring good cause for termination.' [Citations.] The California

Supreme Court recently observed in dictum that most California cases 'have held that an

at-will provision in an express written agreement, signed by the employee, cannot be

overcome by proof of an implied contrary understanding. [Citations.]' [Quoting Guz,

supra, 24 Cal.4th at p. 340, fn. 10.]" (Starzynski v. Capital Public Radio, Inc. ( 2001) 88

Cal.App.4th 33, 38.)

       Ingrande's employment application expressly provides he was an at-will employee,

and Employer's governing employee handbook expressly reiterated that agreement.

Ingrande argues that, notwithstanding the express language in his contract,14 he raised a


14      Ingrande also asserts that, under Harden v. Maybelline Sales Corp. (1991) 230
Cal.App.3d 1550, an at-will clause in an employment application is not controlling but
instead may be rebutted by evidence showing the parties intended to limit the employer's
ability to terminate the employee to "for cause" terminations. Ingrande misreads Harden.
In Harden, the plaintiff applied for a position and the application form stated the
employment was at-will. However, when the employer sent the plaintiff a written formal
job offer, it did not contain the at-will specification. (Id. at p. 1553.) Harden merely
concluded that, when there is an express written job offer accepted by the employee that
omits the at-will condition, there is a triable issue of fact whether the parties intended the
written offer to supersede the at-will condition contained in the job application. (Id. at
pp. 1555-1556.) Harden did not hold that, even absent this subsequent written contract,
an employee could avoid the express at-will condition contained in the application, and
the authorities would not appear to support that reading of Harden. (See, e.g., Wagner v.
Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1387-1394 [affirming
summary judgment, notwithstanding evidence from employee supporting implied
                                             21
triable issue of fact as to the existence of an implied agreement limiting Employer's

ability to terminate his employment except for cause by his evidence that (1) he was a

long-term employee, and (2) Employer had a "three rule write up policy for discipline."15

However, the length of Ingrande's employment is inadequate to raise a triable issue of

fact that the express terms of his at-will contract were superseded by an implied

agreement. (Guz, supra, 24 Cal.4th at pp. 343-344 [in opposing summary judgment, "the

undoubted length and merit of Guz's Bechtel career does not bolster his claim that his at-

will status had been altered by an implied contract. We must look elsewhere for evidence

raising a triable issue that Bechtel entered and breached an implied contract limiting its

right to terminate Guz's employment."].) Ingrande's "evidence" Employer had a three

agreement to limit termination to for-cause termination, because employment application
and employee handbook clearly stated employment was at-will and these writings were a
complete and final expression of this term and preclude evidence of a prior or
contemporaneous collateral agreement at variance with this term].) Harden is irrelevant
because there was no subsequent written contract with Ingrande that might have
superseded the employment application.

15      Ingrande also asserts on appeal that other evidence created a triable issue of fact
on whether Employer was required to have cause to terminate his employment. For
example, he cites the deposition of Ms. Tillman, the human resources director for the
Pacific South region who approved Ingrande's employment termination, as admitting
Ingrande's employment could only be terminated for cause. Ingrande's argument rests on
a misconstruction of Tillman's testimony. Tillman, after testifying Ingrande was "not
terminated at will," clarified that he was in fact terminated "for violating a policy,"
whereas "at will he could be terminated without cause." Her statement of the cause that
in fact led to Ingrande's termination is not an admission that Employer was required to
have a cause to terminate him. Ingrande also adverts to Ms. Quattlebaum's testimony
that, in light of his tenure and position as assistant store manager, he would not be
terminated without approval at the regional level. Although that testimony shows
regional approval to terminate an employee's employment was required, that is not the
equivalent of admitting the regional office could only give approval for such termination
if cause existed.
                                             22
rule write-up policy is even less persuasive, because the testimony he cites does not

support his claim Employer could only terminate an employee after multiple "write

ups."16 We conclude Ingrande produced no evidence raising a triable issue of fact that

the express declaration he was an at-will employee had been supplanted by an implied

agreement to limit Employer's right to terminate Ingrande's employment only for cause,

and therefore summary adjudication on Ingrande's First cause of action for breach of

implied contract was proper.

       Analysis of "Adequate Cause" Holding

       Even assuming Employer was required to have "cause" to terminate Ingrande's

employment, the undisputed material facts showed Employer's decision makers believed,

based on an investigation, Ingrande had committed a major safety violation that its own

policies stated were grounds for immediate employment termination.

       Our Supreme Court in Cotran v. Rollins Hudig Hall Internat., Inc. (1998) 17

Cal.4th 93 (Cotran) explained that " 'good cause' in the context of implied employment

contracts [means] . . . fair and honest reasons, regulated by good faith on the part of the

employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals,

or pretextual." (Cotran, at pp. 107-108.) Cotran explained that "[t]he proper inquiry . . .

is not, 'Did the employee in fact commit the act leading to dismissal?' It is, 'Was the

16     Ingrande cites the deposition testimony of Ms. Jorgenson (a human resources
manager for Employer) and Mr. Mendoza for his argument. However, the cited
testimony from Jorgenson shows that, in response to questions about the alleged "three
write-up rule," she replied, "I'm not sure what you're referring to." The cited testimony
from Mendoza shows that, when asked whether there was a three write-up rule before an
employee's employment could be terminated, he answered, "Not necessarily."
                                             23
factual basis on which the employer concluded a dischargeable act had been committed

reached honestly, after an appropriate investigation and for reasons that are not arbitrary

or pretextual?' " (Id. at p. 107.)

       Contrary to Ingrande's argument, the issue of whether an employer had "good

cause" under the Cotran standards may be resolved on summary judgment. (See, e.g.,

Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 873; accord, Silva v. Lucky

Stores, Inc. (1998) 65 Cal.App.4th 256, 264 ["All of the elements of the Cotran standard

are triable to the jury. [Citation.] However, if the facts are undisputed or admit of only

one conclusion, then summary judgment may be entered on issues that otherwise would

have been submitted to the jury."] (Silva).) Here, Employer's showing was that (1) the

decision makers decided to terminate Ingrande's employment only after an investigation,

(2) the investigation provided the decision makers reasonable grounds for believing

Ingrande had engaged in the misconduct on which the decision to terminate employment

was based, and (3) the cited reason for the termination was not trivial, arbitrary or

capricious, or unrelated to business needs or goals.17 Absent evidence raising a triable

issue of material fact as to one of these three elements, summary judgment in favor of

Employer, on the ground Employer had cause to terminate Ingrande's employment,

would be proper. (Serri v. Santa Clara University, supra, 226 Cal.App.4th at pp. 872-

874; Silva, supra, 65 Cal.App.4th at p. 264.)

17     We recognize Cotran also stated the reasons for the termination must not be
"pretextual." (Cotran, supra, 17 Cal.4th at p. 107.) We address Ingrande's claim that he
showed a triable issue of fact that the stated reasons were pretextual below. (See
Discussion, supra, at part IV.E.)
                                             24
       Ingrande asserts he raised a triable issue of fact on the first element because there

were triable issues of fact (1) whether he in fact directed or allowed Jones to violate any

safety standards, and (2) whether Employer's investigation reaching a contrary conclusion

was flawed. The former issue—whether there is a factual dispute over whether Ingrande

actually committed the misconduct—is irrelevant because, on the issue of "cause,"

Cotran is clear that "[t]he question critical to [an employer's] liability is not whether

plaintiff in fact violated the . . . policy . . . but [instead is whether employer], acting in

good faith following an appropriate investigation, had reasonable grounds for believing

plaintiff had done so." (King, supra, 152 Cal.App.4th at p. 438 [affirming summary

judgment despite appellant's evidence he did not in fact violate the policy].) As to the

latter issue, even assuming there was a dispute over whether Employer's investigation

could have been better, that dispute does not preclude summary judgment under Cotran's

standards. In Silva, supra, 65 Cal.App.4th 256, as here, the plaintiff attempted to defeat

the employer's summary judgment motion by contending that, although there was an

investigation that reached the conclusion there had been misconduct, there were "triable

issues of fact as to whether Lucky's investigation was appropriate under the

circumstances [based on] the evidence show[ing] that Lucky failed to interview key

people, ignored substantial exculpatory evidence and was swayed by rumor, gossip and

innuendo." (Id. at p. 273.) Silva noted the investigator, an uninvolved human resources

representative trained on how to conduct an investigation, obtained written statements,

interviewed others, and provided the employee the opportunity to provide his own


                                               25
statement, and reached his conclusions based on that investigation. (Id. at pp. 272-273.)

Rejecting the plaintiff's claim that summary judgment was improper because of disputed

issues over the adequacy of the investigation, Silva concluded that "[w]hile the

investigation was not perfect, it was appropriate given that it was conducted 'under the

exigencies of the workaday world and without benefit of the slow-moving machinery of a

contested trial.' " (Id. at p. 275, quoting Cotran, supra, 17 Cal.4th at pp. 105-106.) We

agree the investigation here was appropriate under the circumstances. Ingrande does not

dispute that Employer obtained a written statement from both Jones (who stated he was

asked to enter the compactor by Ingrande) and from Ingrande (who said he was present to

support Jones). More importantly, Ingrande does not dispute Employer reviewed a video

of the incident that clearly showed Ingrande was (at a minimum) an active participant

when Jones entered the door to the compactor, notwithstanding the warning signs on the

door. Because the undisputed material facts showed Employer conducted an

investigation appropriate under the circumstances, Ingrande's efforts to present triable

issues of fact on the alleged flawed nature of the investigation, or the conclusions reached

based on that investigation, do not preclude summary adjudication under the Cotran

framework.

       Conclusion

       We conclude the trial court correctly ruled Ingrande had not raised triable issues of

material fact on whether his employment contract included an implied covenant

restricting Employer to terminating his employment only for cause, and Ingrande did not


                                            26
demonstrate triable issues of material fact on whether it did have adequate cause to

terminate his employment. Accordingly, the court did not err in entering summary

adjudication in favor of Employer on Ingrande's first cause of action for breach of

implied contract.

       C. Fraud Claims

       Ingrande's FAC, in his second and third causes of action sounding in fraud, alleged

Employer made numerous representations that Ingrande relied on but the representations

were false and caused injury to him. Ingrande argues the court erred when it entered

summary adjudication on these claims because (1) he demonstrated triable issues of

material fact on certain of the fraud allegations, and (2) Employer's motion purportedly

did not address all of the alleged misrepresentations contained in the second and third

causes of action.

       Background

       Ingrande's claims sounding in fraud alleged a laundry list of allegedly false

representations: (1) Employer " 'always took care of their associates,' " " 'did the right

thing,' " wanted " 'career associates,' " and "was fair" (FAC, ¶¶ 78.a., 78.g. & 78.j.); (2)

Employer would pay 100 percent of Ingrande's salary for medical leaves of absence

(FAC, ¶ 78.b.); (3) Ingrande "would retire a wealthy man" (FAC, ¶ 78c.); (4) Employer

would not discriminate against its employees (FAC, ¶ 78.d.); (5) Employer would follow

safety procedures (FAC, ¶ 78.e.); and (6) Employer would follow state and federal law

(FAC, ¶ 78.i.). Employer's motion for summary judgment argued it was entitled to


                                              27
summary adjudication on Ingrande's fraud claims because (1) none of the alleged

representations were actionable representations of past or present facts but were instead

nonactionable "puffery" and/or predictions about the future or predictions about the

conduct of third parties, and/or (2) Ingrande could not show reliance on many of the

described representations because he knew (or became aware of) the true facts.

       Ingrande's opposition to Employer's motion for summary adjudication on his fraud

claims argued the motion should be denied because Employer did not address every

alleged misrepresentation, including the representations contained in the employee

handbook (which Ingrande incorporated by reference) that Ingrande claimed were false.

He also argued, without citation to authority, that representations he specifically alleged

were actionable representations of past or present facts rather than "puffery" and/or

predictions about the future, and that the fact he continued working for Employer showed

he detrimentally relied on those representations.

       The court concluded Ingrande had not shown a triable issue of fact on his claims

sounding in fraud, because Ingrande's opposition to the motion for summary judgment

did not identify any false representations by Employer as to past or present facts (rather

than statements that were predictions about the future or were mere "puffery") and he had

not shown any detrimental reliance on many of the alleged misrepresentations. Instead,

the court found Ingrande merely relied on the allegations of his complaint, along with

irrelevant argument, to avoid summary adjudication of these claims, which was

inadequate to avoid summary adjudication on them.


                                             28
       Analysis

       A claim for negligent misrepresentation, as asserted in Ingrande's third cause of

action, requires proof the defendant (1) made a misrepresentation of a past or existing

material fact, (2) the misrepresentation was made without reasonable ground for

believing it to be true, (3) the misrepresentation was made with intent to induce another's

reliance on the fact misrepresented, (4) the party to whom it was directed was ignorant of

the truth and justifiably relied on the misrepresentation, and (5) that reliance caused

resulting damage. (See, e.g., Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th

967, 983.) A claim for fraud, as asserted by Ingrande in his second cause of action,

requires proof of the same elements with one exception: fraud requires the defendant had

actual knowledge of falsity at the relevant time, rather than merely lacking reasonable

grounds for believing the representation to be true. (See, e.g., Apollo Capital Fund LLC

v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.)

       On appeal, Ingrande reargues that summary adjudication is improper when the

defendant does not refute the entire cause of action, and therefore summary adjudication

was improper because Employer's motion did not address the misrepresentations

contained in the employee handbook Ingrande incorporated by reference. However,

every element of a fraud cause of action must be specifically pleaded, including every

alleged misrepresentation. (See, e.g, Moncada v. West Coast Quartz Corp. (2013) 221

Cal.App.4th 768, 776.) Employer's motion did address every specifically pleaded

misrepresentation, and a party moving for summary judgment need not address issues not


                                             29
framed by the complaint. (Government Employees Ins. Co. v. Superior Court (2000) 79

Cal.App.4th 95, 98, fn. 4.) Ingrande cites no authority suggesting a plaintiff, by attaching

exhibits to his or her complaint, can avoid summary adjudication on a fraud claim unless

the moving defendant has ferreted out and addressed every potential factual statement

within those exhibits, including statements not specifically pleaded as part of the

plaintiff's fraud claim, and we decline to adopt that rule here.

       Ingrande alternatively argues he did raise triable issues of fact on three specific

representations: (1) Employer falsely represented Ingrande would not be terminated

unless it followed its policies and procedures for discipline; (2) Employer falsely

represented that he would receive 100 percent of his salary for medical leaves of absence;

and (3) Employer falsely represented Ingrande "would retire a wealthy man" from the

stock he was issued as part of his compensation. We are convinced Employer

demonstrated it was entitled to summary adjudication insofar as Ingrande's fraud claims

rested on these alleged statements. For example, his effort to predicate his fraud claims

based on the alleged representation Ingrande "would retire a wealthy man" from the stock

he was issued as part of his compensation fails because "[i]t is hornbook law that an

actionable misrepresentation must be made about past or existing facts; statements

regarding future events are merely deemed opinions." (San Francisco Design Center

Associates v. Portman Companies (1995) 41 Cal.App.4th 29, 43-44.) Because Ingrande




                                             30
cites no pertinent authority that predictions about the value of stock can support a fraud

claim, his fraud claim as to this representation fails.18

       Ingrande's fraud claim on the other two representations fare no better. His claim

that he was told he would receive 100 percent of his salary for a medical leave of absence

was, at best, a prediction how the third party administrator of Employer's disability

insurance program (Liberty Mutual) would react to his disability claim, and Ingrande's

opposition to Employer's motion for summary adjudication did not dispute (1) that

Employer's short-term disability policy explicitly states the third party administrator

makes the determination on whether to pay an employee during a leave of absence, (2)

Ingrande admitted he knew Liberty Mutual was "in charge of [his] claim and . . . they're

the ones that are going to make the decision and pay [him]." " '[P]redictions as to future

events, or statements as to future action by some third party, are deemed opinions, and

not actionable fraud.' " (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th

153, 158.)

       Ingrande's final claim—Employer misrepresented that his employment would only

be terminated after it followed its policies and procedures for disciplining employees—

also fails. First, the implied representation—Ingrande was promised his employment

would only be terminated after Employer followed its policies and procedures for

18     Although this ground is dispositive as to this specific alleged misrepresentation,
Employer went further and showed this aspect of Ingrande's fraud claim failed for an
additional reason: he did not reasonably rely on the representation as to stock values
because Ingrande admitted in his deposition that he knew (and received documents from
Employer advising him) stock values fluctuate and past performance of stock holdings
was no guarantee of future performance.
                                              31
disciplining employees—was a prediction of what Employer would do in the future. As

previously discussed, this is not actionable. More importantly, as discussed above,

Ingrande knew from the employment application (and was on notice from the governing

employee handbook) that the express terms of his contract made him an at-will employee,

which precludes an employee from interposing a fraud claim based on an implied

representation the employer would terminate the employee's employment only for

cause.19 (See, e.g., Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 807

[express at-will term in contract bars fraud claim because no justifiable reliance]; accord,

McCreery v. Seacor (W.D. Mich. 1996) 921 F.Supp. 489, 493-494 [summary judgment

on fraud claim proper where alleged misrepresentation was directly contrary to express

terms of employment contract].)

       We conclude the trial court correctly found there was no triable issue of material

fact on any of Ingrande's properly pleaded fraud claims, and therefore properly granted

summary adjudication on them.




19      Finally, although not necessary to our decision, Ingrande has not demonstrated a
triable issue of material fact that the representation (his employment would be terminated
only in accordance with Employer's policies and procedures) was false. Ingrande's
employment was terminated "in accordance" with Employer's policy (i.e. the policy that
"knowingly allowing associates to perform work under unsafe conditions," or "directing
any associate to violate company safety standards" would subject the offender to
termination for a first offense), and was done only after Employer adhered to its
procedures of investigating the incident and consulting with appropriate administrative
personnel.
                                             32
       D. The Wage Claims

       Ingrande's sixth cause of action asserted a wage claim alleging Employer was

required to, but did not, pay Ingrande for overtime, and did not provide the required

"break periods." The court granted summary adjudication as to these claims because it

concluded Ingrande improperly attempted to create a triable issue of fact (1) by his

declaration, which contradicted his deposition testimony; and (2) by claiming he was a

nonexempt employee without pleading in his sixth cause of action that Employer had

misclassified Ingrande as an exempt employee. Ingrande argues both conclusions are

erroneous, and that he raised triable issues of material fact precluding summary

adjudication on his sixth cause of action for unpaid wages.

       Background

       Employer's summary judgment motion noted the claims asserted by Ingrande—for

unpaid overtime and failure to have break periods—have a three-year statute of

limitations. Employer argued that, because it was undisputed Ingrande had been a

salaried assistant store manager for more than three years before filing his lawsuit, any

claims for unpaid overtime and failure to have break periods when he worked in a

nonexempt position were necessarily time-barred, and salaried managers who meet the

requirements of the administrative, executive or professional exemptions are not entitled

to overtime and break periods. Employer argued that, because Ingrande had no non-time-

barred claims for overtime or break periods, and admitted during discovery that




                                            33
Employer paid him all vacation and/or sick time due him, Ingrande had no facts

supporting his sixth cause of action.

       Ingrande, opposing the motion for summary adjudication of his sixth cause of

action, noted claims that had accrued within three years before the lawsuit was filed were

not time-barred. He also noted salaried employees are entitled to overtime unless they

are "exempt" and, because Employer made no effort to satisfy its burden of showing he

was an employee whose job responsibilities met the requirements for the administrative,

executive or professional exemptions from the required overtime and break period

protections, summary adjudication was improper.

       The court granted summary adjudication on this claim. It reasoned Ingrande's

claim—that he was entitled to overtime because he was not an exempt employee—was

an attempt to avoid summary judgment by interposing a theretofore unpleaded claim that

he had been "misclassified" as an exempt employee, and a party may not avoid summary

judgment by raising factual disputes on "unpleaded" claims.20


20     The court also concluded Ingrande had improperly tried to create a triable issue of
fact by his declaration averring he worked more than 40-hour work weeks as an assistant
manager without receiving overtime. The trial court concluded that "contradict[ion] [of]
his deposition testimony" could not be employed to avoid summary judgment. Our
search of the record for this contradiction—i.e., Ingrande's admission during his
deposition that he had been paid overtime while working as an assistant manager—has
been unsuccessful. The only possible passage we have found is, when asked in
deposition whether he was "not compensated for work you performed after you became
an assistant store manager," Ingrande responded, "I don't recall at this time." We are
unaware of any authority that makes Ingrande's deposition response fatally inconsistent
with his averment he was not paid overtime. However, we need not reach that issue
because Employer did not assert below that these responses warranted summary
adjudication, but instead relied on the combined impact of the statute of limitations and
                                            34
       Analysis

       Legal Framework

       "Any work in excess of eight hours in one workday and any work in excess of 40

hours in any one workweek . . . shall be compensated at the rate of no less than one and

one-half times the regular rate of pay for an employee." (Lab. Code, § 510, subd. (a).)

The regulatory scheme specifies that, when an employee is paid on a salaried basis, "[t]he

overtime rate of compensation required to be paid to a nonexempt full-time salaried

employee shall be computed by using the employee's regular hourly salary as one-fortieth

(1/40) of the employee's weekly salary." (Cal. Code Regs., tit. 8, § 11040, subd.

3(A)(1)(c).) Thus, the fact an employee is salaried does not, standing alone, preclude a

claim for overtime.

       However, "[t]he Industrial Welfare Commission may establish exemptions from

the requirement that an overtime rate of compensation be paid pursuant to Section[] 510

. . . for executive, administrative, and professional employees, if the employee is

primarily engaged in the duties that meet the test of the exemption, customarily and

regularly exercises discretion and independent judgment in performing those duties, and

earns a monthly salary equivalent to no less than two times the state minimum wage for

full-time employment." (Lab. Code, § 515, subd. (a).) Pursuant to the authority granted

by this section to establish exemptions to the overtime pay provision of Labor Code

section 510, the Industrial Welfare Commission has adopted rules applicable to


Ingrande's alleged exempt status to assert it was entitled to summary adjudication on his
sixth cause of action.
                                             35
professional, technical, clerical, mechanical, and similar occupations, and has established

a five-part test to determine whether the administrative employee exemption applies.

With minor variations, those exemptions apply if the employee (1) performs "office or

non-manual work directly related to management policies or general business operations"

of the employer or its customers, (2) "customarily and regularly exercise[] discretion and

independent judgment," (3) "performs under only general supervision work along

specialized or technical lines requiring special training" or "executes under only general

supervision special assignments and tasks," (4) is engaged in the activities meeting the

test for the exemption at least 50 percent of the time, and (5) earns twice the state's

minimum wage. (Cal. Code Regs., tit. 8, § 11040, subd. 1(A).) Because these criteria are

"[s]tated in the conjunctive, each of the five elements must be satisfied to find the

employee exempt as an administrative employee." (Eicher v. Advanced Business

Integrators, Inc. (2007) 151 Cal.App.4th 1363, 1372.)

       Under the regulatory scheme, a salaried employee like Ingrande is entitled to

overtime unless he is an exempt employee. The exemptions from overtime rules are to be

narrowly construed (Eicher v. Advanced Business Integrators, Inc., supra, 151

Cal.App.4th at p. 1374), and "the assertion of an exemption from the overtime laws is

considered to be an affirmative defense, and therefore the employer bears the burden of

proving the employee's exemption." (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th

785, 794-795.)




                                              36
       It is axiomatic that "[t]he burden on a defendant moving for summary judgment

based upon the assertion of an affirmative defense is [different] than the burden to show

one or more elements of the plaintiff's cause of action cannot be established. Instead of

merely submitting evidence to negate a single element of the plaintiff's cause of action, or

offering evidence such as vague or insufficient discovery responses that the plaintiff does

not have evidence to create an issue of fact as to one or more elements of his or her case

[citation], 'the defendant has the initial burden to show that undisputed facts support each

element of the affirmative defense' [citations] . . . . If the defendant does not meet this

burden, the motion must be denied." (Anderson v. Metalclad Insulation Corp. (1999) 72

Cal.App.4th 284, 289-290.) Stated differently, " '[t]here is no obligation on the opposing

party (plaintiffs here) to establish anything by affidavit unless and until the moving party

has by affidavit stated " 'facts establishing every element [of the affirmative defense]

necessary to sustain a judgment in his favor. (Citation omitted.)' " ' [Citation.] [¶] What

this means . . . is that if an affirmative defense has four elements, it does not suffice even

if the defendant produces overwhelming evidence as to three of those elements. If the

defendant fails to address the fourth element at all or to produce substantial evidence

supporting that element, the trial court cannot properly grant summary judgment.

Moreover, a summary judgment granted in those circumstances would have to be

reversed, even if the plaintiff failed to introduce a scintilla of evidence challenging that

element.'' (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830-831.)




                                              37
       Here, Ingrande's sixth cause of action pleaded a claim alleging he was entitled to,

but had not received, payment for overtime and for break periods that Employer had not

provided. Although Employer alleged (as an affirmative defense) Ingrande was exempt

from overtime laws, and its summary judgment motion peremptorily asserted summary

adjudication on Ingrande's sixth cause of action should be entered because any claims not

barred by the statute of limitations were barred because Ingrande was an exempt

employee, Employer's motion contained no effort to show that any of the required

elements necessary to establishing the affirmative defense of "exemption" under title 8,

section 11040, subdivision 1(A) of the California Code of Regulations was met, much

less that the undisputed material facts showed all of the required elements were met.

Accordingly, summary adjudication on Ingrande's sixth cause of action must be reversed

regardless of whether Ingrande "failed to introduce a scintilla of evidence" challenging

those elements. (Huynh v. Ingersoll-Rand, supra, 16 Cal.App.4th at pp. 830-831.)

       The trial court nevertheless entered summary adjudication on Ingrande's sixth

cause of action because it concluded he had not alleged he was a nonexempt employee

entitled to overtime under the Labor Code whom Employer had misclassified as exempt,

and therefore he could not raise this new, unpleaded theory to avoid summary

adjudication. However, exemption from the overtime laws is an affirmative defense on

which the employer bears the burden of proof (Ramirez v. Yosemite Water Co., supra, 20

Cal.4th at pp. 794-795), and Employer cites no authority suggesting an employee who

has pleaded a claim for unpaid overtime must also allege facts overcoming the employer's


                                            38
affirmative defense of "exemption." Because the ordinary rules of pleading are clear that

a plaintiff is not required to allege facts negating or anticipating possible affirmative

defenses (see, e.g., Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 422; accord, Cohen

v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1496 ["a complaint 'should not state

and attempt to controvert matters that the defendant might raise in [the] answer' "]), and

Employer cites no authority suggesting a different rule applies to an employee's

otherwise properly pleaded claim for alleging he or she was entitled to but was not paid

overtime, the core rationale for the trial court's order granting summary adjudication on

Ingrande's sixth cause of action was error. We reverse the trial court's ruling granting

summary adjudication on Ingrande's sixth cause of action.

       E. The "Termination in Violation of Public Policy" Claims

       Ingrande's seventh and 10th causes of action asserted his employment was

terminated in violation of public policy. In relevant part,21 he alleged his employment

termination was not due to his job performance but was instead because of his complaints

about safety violations (seventh cause of action) and/or because of his age (seventh and

10th causes of action).22 Ingrande argues that, because he demonstrated triable issues of


21     His complaint also pleaded wrongful employment termination claims based on
allegations he was terminated because of his gender and ethnicity. However, Ingrande on
appeal raises no claim of error as to the trial court's ruling on those claims, and we
therefore deem those claims abandoned (Schmidt v. Bank of America, N.A. (2014) 223
Cal.App.4th 1489, 1511) and do not further consider those aspects of Ingrande's pleaded
causes of action.

22     Ingrande's FAC alleged his employment was terminated in violation of public
policy because the true reason he was terminated was because of his age and/or in
                                              39
material fact on whether the true reasons Employer terminated his employment were

these improper reasons, the court erred when it entered summary adjudication on these

claims.

       Background

       Employer's motion asserted Ingrande was required to, but could not, satisfy his

initial burden of showing a prima facie case of discriminatory or retaliatory employment

termination, because his prima facie showing required evidence that (1) he was

performing competently at his position and (2) the adverse employment action occurred

because of the protected characteristic or activity. Employer argued (1) the undisputed

facts showed he was not performing competently at his position because he sent or

permitted Jones to enter the trash compactor, and (2) he had no evidence the person who

recommended the adverse employment action (Campeau) or ultimately approved the

adverse employment action (Tillman) knew, at the time of the recommendation and

approval, that Ingrande had made complaints about Employer's safety practices or even

knew (much less was motivated to terminate his employment because of) Ingrande's age.



retaliation for his complaints about safety violations. Because the standards for assessing
the propriety of granting summary judgment on such claims apparently employ similar
burden-shifting approaches (compare Guz, supra, 24 Cal.4th at p. 354 [applying three-
stage burden-shifting test established by McDonnell Douglas Corp. v. Green (1973) 411
U.S. 792 to evaluate age discrimination claim] and Loggins v. Kaiser Permanente
Internat. (2007) 151 Cal.App.4th 1102, 1108-1109 [when plaintiff alleges retaliatory
employment termination either as claim under the California Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.), or as claim for wrongful employment
termination in violation of public policy, California employs burden-shifting analysis of
McDonnell Douglas in evaluating summary judgment motion]), we examine Ingrande's
seventh and 10th causes of action together.
                                            40
Employer argued the absence of any evidence supporting Ingrande's prima facie case of

retaliatory or discriminatory employment termination alone warranted summary

adjudication on these claims.

       Employer's motion alternatively asserted that, even if there was a modicum of

evidence supporting the prima facie showing, thereby shifting the burden to Employer to

show Ingrande's employment was terminated for a legitimate and nonprohibited reason, it

was undisputed Employer's stated reason for the adverse employment action was a

legitimate reason to terminate an employee's employment, which then required Ingrande

to provide evidence raising a genuine issue of fact whether the proffered reason for his

employment termination was pretextual. Employer asserted that, because Ingrande did

not have any evidence the persons recommending or deciding the adverse employment

action knew, at the time the decision was made to terminate his employment, he had

made complaints about Employer's safety practices, or knew his age, Ingrande had no

evidence raising a triable issue of fact that the articulated reason for the termination was

merely a pretext to mask a prohibited reason.

       Ingrande's opposition asserted he had evidence showing prima facie he was

performing competently at his position, and there was evidence raising a triable issue of

fact Campeau and Tillman knew his age and decided to terminate his employment

because of his age, or decided to terminate his employment in retaliation for his

complaints about safety violations. He argued this shifted the burden to Employer to

show the decision to terminate his employment was based on considerations other than


                                             41
his age or other protected considerations. Although Ingrande acknowledged Employer

articulated a legitimate reason (the trash compactor incident), he claimed there was

evidence raising a triable issue of fact whether the articulated reason was pretextual,

because (1) there was evidence Employer was planning to terminate Ingrande's

employment before the compactor incident, and (2) there was evidence from which a jury

could conclude the articulated reason (the trash compactor incident) was a pretext

masking the actual reason (Ingrande's age) for the employment termination.23 Ingrande

argued triable issues of fact precluded summary adjudication on his seventh and 10th

causes of action.

       The trial court concluded Ingrande did not raise triable issues of fact either on

whether he was competently performing his job position or as to any causal connection

between his age and the decision to terminate his employment, which was fatal to both

his claim for age discrimination (10th cause of action) and his claim for wrongful

employment termination in violation of public policy (seventh cause of action) insofar as

it was premised on his assertion his employment was terminated because of his age.




23     Ingrande argued the evidence showed (1) Employer's investigation of the incident
was shoddy, (2) the decision makers did know Ingrande's age, (3) there was evidence
Employer held meetings to establish quotas for firing older (and hence higher paid)
employees where managers were instructed to " 'make up' reasons to terminate
employees," (4) he had been threatened with employment termination by district manager
Powers well before the compactor incident, and (5) Employer began laying the ground
work for terminating Ingrande's employment even before the trash compactor incident by
creating a series of "false write-ups" criticizing Ingrande's performance.

                                             42
       Legal Framework

       As we previously concluded, Ingrande was an at-will employee subject to

employment termination with or without cause. However, " '[although] an at-will

employee may be terminated for no reason, or for an arbitrary or irrational reason, there

can be no right to terminate for an unlawful reason or a purpose that contravenes

fundamental public policy.' " (Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097,

1104.) A termination violating FEHA's policy against age discrimination, as alleged by

Ingrande here, will support a claim for wrongful discharge in violation of public

policy.24 (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897.)



24      We are less sanguine that Ingrande's claim for wrongful termination, insofar as it
was predicated on his claim he was terminated in retaliation for his "complaints about
safety violations," would be equally viable. (Cf. Turner v. Anheuser-Busch, Inc. (1994) 7
Cal.4th 1238, 1257 [allegation of retaliation based on employee's complaints about
"violations," when unaccompanied by citations to specific statutory or constitutional
provisions embodying fundamental public policies involved, insufficient to create an
issue of material fact justifying a trial on the merits of wrongful discharge claims].)
However, it is unnecessary to definitively determine this issue, because Ingrande has not
satisfied his burden on appeal of showing he raised a triable issue of fact that Campeau
and Tillman even knew about his complaints about safety violations when they made the
decision to terminate his employment, much less that the decision was made in
retaliation for those complaints. Campeau and Tillman both averred they had no
knowledge of his safety complaints, and Ingrande's brief on appeal, although asserting
"there are a number of triable issues of material fact that prevent summary adjudication,"
attempts to support that assertion by a shotgun reference to 67 pages of the Clerks
Transcript without identifying which parts of the cited pages support which aspects of his
claims of error. The burden is on the appellant to affirmatively demonstrate error, and we
conclude Ingrande's failure to cite to the record with particularity waives any claim of
error. (Cf. Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799-800; see
Cal. Rules of Court, rule 8.204(a)(1)(C).) "When an appellant's brief makes no reference
to the pages of the record where a point can be found, an appellate court need not search
through the record in an effort to discover the point purportedly made." (In re S.C.
(2006) 138 Cal.App.4th 396, 406.) Because Ingrande's appellate brief does not identify
                                            43
       "An employee alleging age discrimination must ultimately prove that the adverse

employment action taken was based on his or her age. Since direct evidence of such

motivation is seldom available, the courts use a system of shifting burdens as an aid to

the presentation and resolution of age discrimination cases. [Citations.] That system

necessarily establishes the basic framework for reviewing motions for summary judgment

in such cases." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,

1002 (Hersant).) The applicable burden-shifting system involves a three-step analysis:

(1) the employee must first establish a prima facie case of age discrimination; (2) if the

employee establishes his or her prima facie case, the burden shifts to the employer to

provide a legitimate non-age-based reason for the adverse employment action; and (3) if

the employer satisfies its burden, the employee then must show the employer's articulated

reason for the adverse employment action was a pretext to mask the actual,

discriminatory reason for the adverse action. (Guz, supra, 24 Cal.4th at pp. 354-356;

Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148-150.) Under

this burden-shifting analysis, once the employer has met its burden of showing its action

was motivated by legitimate, non-age-based reasons, the employer is entitled to summary

judgment unless the employee produces "evidence supporting a rational inference that

intentional discrimination . . . was the true cause of the employer's actions. [Citation.]



what portions of the record demonstrate how he raised a triable issue of fact as to whether
Campeau and Tillman knew of his safety complaints, we deem waived (and do not
further examine) his claim that it was error to enter summary adjudication on his seventh
cause of action insofar as it was predicated on an alleged termination in retaliation for
such safety complaints.
                                             44
[T]he great weight of federal and California authority holds that 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, at p. 361, fn. omitted.)

       Analysis

       Under the applicable standards, it was Ingrande's burden in resisting Employer's

motion for summary judgment initially to produce evidence necessary to show a "prima

facie" case of age discrimination, which required evidence (1) he was a member of a

protected class, (2) he was performing competently in the position he held, (3) he

suffered an adverse employment action, and (4) some other evidence suggested the

adverse action occurred because of his age. (Guz, supra, 24 Cal.4th at p. 355; cf.

Deschene v. Pinole Point Steele Co. (1999) 76 Cal.App.4th 33, 44.) Although two of the

required elements of the prima facie case were shown,25 the court found Ingrande had

not met the required prima facie showing because he had not shown he was performing

competently in his job. The court also granted summary adjudication because he

produced no evidence raising a triable issue of fact that the decision made by Tillman and

Campeau to terminate Ingrande's employment was because of his age rather than because

of his violation of Employer's safety rules.




25      Ingrande contends, and Employer does not dispute, Ingrande adequately showed
he was a member of the protected class because he was over 40 years of age (element
(1)), and suffered an adverse action (element (3)).
                                               45
       Ingrande peremptorily asserts he satisfied element (2) because he averred he did

not direct or assist Jones to violate safety standards, and showed Employer's conclusion

to the contrary was based on a flawed investigation. Although he produced evidence

suggesting Employer's investigation could have been better, in either its scope or its

documentation, the conclusion reached by Employer—that Ingrande in fact was not

"performing competently" because he violated the type of safety standards Employer's

internal policies expressly caution are so serious as to warrant immediate termination—is

amply supported by both the videotape of the trash compactor incident and by the written

statements regarding that incident provided to Employer by Jones and Ingrande. Under

these circumstances, we reject Ingrande's implied contention, made without citation to

authority, that merely pointing out an employer's investigatory process was flawed is a

substitute for the affirmative showing required of the employee that he or she

demonstrate the employee was in fact "performing competently in the position" he or she

occupied with the employer. (Cf. King, supra, 152 Cal.App.4th at pp. 435-437.)

       Even assuming Ingrande showed he was otherwise competently performing his job

apart from the trash compactor incident, Employer produced evidence that its articulated

reason for discharging Ingrande was unrelated to his age (i.e. was based on his violation

of a safety standard Employer's internal policies expressly caution are so serious as to

warrant immediate termination of employment) and was reached after an investigation

that provided it a good faith reason for believing Ingrande had in fact violated those

policies. Under these circumstances, the burden then shifted to Ingrande to produce


                                            46
evidence this articulated reason was a pretext to mask the real, age-based reason for his

employment termination. (Guz, supra, 24 Cal.4th at pp. 354-356.) The court in King,

supra, 152 Cal.App.4th 426, explaining the element of the employer's burden to make a

sufficient showing of a legitimate reason for discharge in the context of a summary

judgment motion, reasoned that when the employer has shown it conducted an

investigation that led "the decision makers [to] entertain[] an honest belief that plaintiff

had either personally falsified a driver's timecard or directed the driver to do so[,] . . . [the

employer has met its burden and] it does not matter whether plaintiff actually did commit

an integrity violation as long as UPS honestly believed he did" (id. at p. 433), even

though the plaintiff claimed there was evidence the investigation was flawed or reached

wrong conclusion. (Id. at pp. 435-437.) The same rationale controls here: Employer

showed it reviewed the videotape of the trash compactor incident (and the written

statements regarding the trash compactor incident provided to Employer by both Jones

and Ingrande), all of which supported a legitimate, non-age-based reason for discharging

him, and therefore the burden shifted to Ingrande to produce evidence showing

Employer's articulated non-age-based reason for discharging him was pretext. (Morgan

v. Regents of University of California (2000) 88 Cal.App.4th 56, 68 (Morgan).)

       When the burden shifts back to the employee, " 'to avoid summary judgment, an

employee claiming discrimination must offer substantial evidence that the employer's

stated nondiscriminatory reason for the adverse action was untrue or pretextual, or

evidence the employer acted with a discriminatory animus, or a combination of the two,


                                               47
such that a reasonable trier of fact could conclude the employer engaged in intentional

discrimination.' [(Quoting Hersant, supra, 57 Cal.App.4th at pp. 1004-1005.)] [¶] Nor

can the employee simply show the employer's decision was wrong, mistaken, or unwise.

Rather, the employee ' "must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate

reasons for its action that a reason able factfinder could rationally find them 'unworthy of

credence,' [citation], and hence infer 'that the employer did not act for the [ . . . asserted]

non-discriminatory reasons.' [Citations.]" [Citations.]' [(Quoting Hersant, at p. 1005.)]"

(Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807, fn.

omitted.)

       We are convinced Ingrande did not satisfy his burden of raising a triable issue of

fact—either by direct evidence or by "[c]ircumstantial evidence of ' "pretense" [that is

sufficiently] "specific" and "substantial" in order to create a triable issue [of pretext]' "

(Morgan, supra, 88 Cal.App.4th at p. 69, quoting Godwin v. Hunt Wesson, Inc. (9th Cir.

1998) 150 F.3d 1217, 1222)—that the articulated reason for his employment termination

was merely a pretext to hide that he was actually discharged because of his age. The

record appears devoid of any direct evidence (Morgan, at p. 67 [" ' "Direct evidence is

evidence which, if believed, proves the fact [of discriminatory animus] without inference

or presumption" ' "], quoting Godwin, at p. 1221), such as any statements by the decision

makers expressly revealing the existence of bias (Godwin, supra), suggesting Tillman or

Campeau approved his discharge because of his age. We must examine whether


                                               48
Ingrande's circumstantial evidence was sufficiently specific and substantial to raise a

triable issue of fact whether Tillman or Campeau approved his discharge because of his

age. (See, e.g., Bergene v. Salt River Project Agric. Improvement & Power Dist. (9th Cir.

2001) 272 F.3d 1136, 1142 ["Circumstantial evidence of pretext must be specific and

substantial in order to survive summary judgment."].)

       The evidence cited by Ingrande on appeal does not raise a triable issue of fact that

the articulated reason for Tillman's and Campeau's approval of his employment

termination—the trash compactor incident—was merely a pretext for the alleged actual

reason (i.e. his age) they approved his employment termination. Ingrande first cites the

evidence that the department in which Campeau worked (Employer's AACG department)

generated a "ticket" around March 1, 2011, showing the AACG had been notified on that

date of Ingrande's claim that Mr. Powers had been "threatening [Ingrande] for a long

time." However, this was after Tillman and Campeau approved Ingrande's employment

termination, and contains no hint that Powers's threats were animated by Ingrande's age.

Ingrande makes no effort on appeal to explain how this "ticket" provides any basis for

inferring Tillman or Campeau in fact approved his employment termination because of

his age rather than because of the trash compactor incident. Ingrande next cites an e-mail

from Ms. Jorgenson (Employer's district human resources manager, who participated in

the discussions leading up to the discharge decision) to Mr. Peralta (the store manager),

which Ingrande claims demonstrated Employer engaged in a "deceitful attempt to

'document the file' in order to justify the [termination]." However, that e-mail merely


                                            49
contains Jorgenson's admonition that, in connection with the investigation of the trash

compactor incident, "please make sure that everyone writes a statement for review."

Although this e-mail may show a desire to insure the investigation was as complete as

possible, and indeed the absence of the statements requested in this e-mail would

undoubtedly have been additional fodder for Ingrande's claim of an inadequate

investigation, it is pure speculation and conjecture that an employer's request to document

the articulated reason for an employment termination shows the employer was attempting

to mask a prohibited reason for the termination. (Horn v. Cushman & Wakefield

Western, Inc., supra, 72 Cal.App.4th at p. 807 ["[A]n issue of fact can only be created by

a conflict of evidence[,] . . . not . . . by speculation or conjecture."].)

       Ingrande's remaining efforts to raise a triable issue of fact on pretext are equally

unavailing. For example, he notes he was terminated for the trash compactor incident

while Jones, an employee younger than 40, was not. Although pretext may be shown by

disparate treatment evidence (McDonnell Douglas Corp. v. Green, supra, 411 U.S. at p.

804), a plaintiff relying on such evidence "must show that the 'comparables' are similarly-

situated in all respects." (Mitchell v. Toledo Hosp. (6th Cir. 1992) 964 F.2d 577, 583,

italics added.) Ingrande was an experienced manager who directed Jones to go into the

compactor, while Jones was a recently hired subordinate who acted pursuant to his

manager's instructions. They are not similarly situated. (Cf. Hargett v. National

Westminster Bank, USA (2d Cir. 1996) 78 F.3d 836, 839-840 [managers may be held to

higher standards of conduct than lower level employees].) Ingrande also asserts on


                                                50
appeal that "[o]lder employees were terminated to save money," but his appellate brief

contains no citation to the record supporting this assertion,26 and we do not further

consider it. (Sprague, supra, 166 Cal.App.3d at p. 1050; Lewis v. County of Sacramento,

supra, 93 Cal.App.4th at p. 116.)

       Although Ingrande has demonstrated on appeal that he raised a triable issue of fact

over whether Employer's investigation was imperfect, that showing falls short of the type

of circumstantial evidence of pretext required to defeat a summary judgment motion

directed at a claim of discrimination: " 'The [employee] cannot simply show that the

employer's decision was wrong or mistaken, since the factual dispute at issue is whether

discriminatory animus motivated the employer, not whether the employer is wise,

shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate

such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them "unworthy of credence," [citation], and hence infer "that the

employer did not act for the [. . . asserted] non-discriminatory reasons." [Citations.]' "

(Hersant, supra, 57 Cal.App.4th at p. 1005.) Ingrande has not demonstrated on appeal

that his evidentiary showing below would permit a reasonable factfinder to rationally find

Employer's articulated reason for Ingrande's employment termination was so weak,

implausible, inconsistent, incoherent or contradictory that the articulated reason was

26    Instead, Ingrande supports this assertion solely by citing a comment by
Ms. Tillman that Home Depot stock had declined during the recession, and a comment by
Mr. Mendoza that bonuses not paid to Ingrande would be shared among other store
managers and assistant managers.
                                              51
unworthy of credence, and therefore he has not demonstrated on appeal that the trial

court's order granting summary adjudication on his seventh and 10th causes of action was

erroneous.

                                      DISPOSITION

       The judgment in favor of the individual defendants is affirmed, and the individual

defendants are entitled to recover their costs on appeal against Ingrande. The judgment

in favor of Employer is reversed, and the matter is remanded with directions that the

superior court enter a new and different order granting Employer's motion for summary

adjudication on all of Ingrande's causes of action except his sixth cause of action, and

denying Employer's motion for summary adjudication on Ingrande's sixth cause of action.

Ingrande and Employer shall bear their own respective costs on appeal.




                                                                           McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


NARES, J.




                                             52
