Filed 1/6/16 Koch v. Scientific Image Center Management CA1/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                     DIVISION 2


R. JAMES KOCH,
         Plaintiff and Appellant,
                                                                     A139372
v.
SCIENTIFIC IMAGE CENTER                                              (San Mateo County
MANAGEMENT, INC.; et al.,                                            Super. Ct. No. CIV513706)
         Defendants and Respondents.



BY THE COURT:
         It is ordered that the opinion filed herein on January 5, 2016, be modified as
follows:
         On page 20, footnote 8, the bolded and bracketed language “[re-check this before
filing]” should be deleted.
         There is no change in the judgment.




Dated:___________________                                                   _________________________
                                                                            Kline, P. J.
Filed 1/5/16 Koch v. Scientific Image Center Management CA1/2 (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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                     DIVISION 2


R. JAMES KOCH,
         Plaintiff and Appellant,
                                                                     A139372
v.
SCIENTIFIC IMAGE CENTER                                              (San Mateo County
MANAGEMENT, INC.; et al.,                                            Super. Ct. No. CIV513706)
         Defendants and Respondents.


                                                INTRODUCTION
         Plaintiff R. James Koch, a medical doctor and plastic surgeon, filed the instant
action against defendant Scientific Image Center Management, Inc. (SICM), and the
affiliated plastic surgery clinics for whom he worked, alleging that he was wrongfully
terminated for complaining about various policies and practices adopted by SICM. The
trial court granted summary judgment, finding that Koch had failed to demonstrate the
existence of a triable issue of fact as to whether SICM had terminated him. Koch
appeals, arguing that a triable issue of fact exists as to whether SICM terminated him and
whether this termination was causally related to his complaints, which he contends were
protected activity under Business and Professions Code section 2056 and Health and
Safety Code section 1278.5. Finding triable issues of fact as to each element of Koch’s
wrongful termination claims, we reverse the trial court’s grant of summary judgment and
remand this action for trial.




                                                             1
                 FACTUAL AND PROCEDURAL BACKGROUND
I.     Background of Koch and Scientific Image Center Management, Inc.
       Dr. David Kent, a facial plastic surgeon with a private practice in Troy, Michigan,
developed a minimally invasive facelift procedure that required only local anesthetic and
no hospitalization. Kent trademarked the phrase “Lifestyle Lift” to describe this
procedure. Between 2001 and 2006, Kent began opening clinics across the country to
perform facial plastic surgery operations, including Lifestyle Lift procedures. For each
clinic, Kent formed separate professional corporations and then negotiated with interested
doctors in the area to start the clinic. By 2006, there were approximately 19 clinics in
operation. Kent formed defendant Scientific Image Center Management, Inc. (SICM) to
manage the day-to-day administrative, non-medical, business operations of each clinic.
       Plaintiff R. James Koch is a facial plastic surgeon, board certified in
otolaryngology-head and neck surgery, facial plastic and reconstructive surgery, and
medical management. He is licensed to practice medicine in nine states, including
California and Florida. In 2006, Koch was serving as an associate professor of
otolaryngology at Stanford University School of Medicine as well as the assistant chief of
the otolaryngology section at the Department of Veterans Affairs Hospital in Palo Alto.
       In February 2006, Kent wanted to open a Lifestyle Lift clinic in the San Francisco
Bay Area. Kent and Koch discussed having Koch open such a clinic in San Mateo
County. These negotiations culminated in Kent forming defendant Golden Gate Surgical,
P.C. (Golden Gate Surgical), which then entered into a contract with Koch in August
2006. This contract described Koch as an independent contractor who was to provide
cosmetic surgery services to Golden Gate Surgical’s patients. The agreement provided
for a one-year term, which would automatically renew unless either party provided
written notice at least 45 days before the expiration of the term. Golden Gate Surgical
was obligated to provide Koch with “space, equipment and personnel customarily found
in plastic and cosmetic surgery practices” as well as medical malpractice insurance.
Koch was to be paid a minimum of $25,000 a month ($300,000 a year), adjusted monthly
to Koch’s actual earnings based on surgical procedures he performed that month. Either


                                             2
party was permitted to terminate the agreement for any reason or no reason after giving
30 days written notice.
       In 2007, Koch’s role in Kent’s Lifestyle Lift clinics expanded. Koch entered into
discussions with SICM to assume the role of SICM’s administrative medical director. On
April 25, 2007, Kent sent Koch’s corporation, R. James Koch, Inc. (Koch, Inc.),1 a letter
outlining the terms of their agreement to have Koch, Inc. perform the duties of
administrative medical director for SICM. On July 26, 2007, SICM and Koch, Inc.
executed a formal written agreement that reflected the terns contained in the April 25,
2007 letter (Medical Director Agreement).
       The Medical Director Agreement described Koch, Inc. as an “independent
contractor” and provided that the agreement “shall not constitute the formation of a
partnership, joint venture, employment or master/servant relationship.” The agreement
provided for a one-year term, which would renew automatically unless either party
provided 30 days’ written notice prior to the expiration of the term. Additionally, either
party could terminate the contract for any reason or no reason by giving 30 days’ written
notice to the other party. As compensation for providing the services of administrative
medical director, Koch, Inc. would receive a monthly “consultant fee” of $58,333.33 per
month ($700,000 a year).
       As administrative medical director, Koch provided medical and surgical
administrative support, provided medical advice to doctors, visited the Lifestyle Lift
clinics to observe the physicians and perform quality reviews, trained the physicians on
Lifestyle Lift procedures, investigated reports related to doctors’ quality of care, assisted
in the recruitment of new doctors, and served as an expert witness in Lifestyle Lift
litigation. Additionally, Koch became a member of SICM’s Senior Business Team and
attended weekly meetings and saw company decisions and policies be implemented.
Koch was required to report to the Senior Business team regarding problems that required
attention, such as a doctor with a high number of surgical complications.

       1
           Koch formed a corporation in February 2007.


                                              3
       In addition to becoming SICM’s administrative medical director, Koch also
executed contracts with defendants Coronado Surgery Associates, P.C.; Santa Ana
Surgery Associates, P.C.; and Beverly Hills Plastic Surgery Center, P.C. These contracts
provide that each professional corporation “desires to contract with [Koch] as an
employee to render certain cosmetic surgery services.” The contracts could be
terminated upon 45 days’ written notice by either party, for any reason or no reason.2
The $700,000 annual salary paid to Koch, Inc. under the Medical Director Agreement
compensated Koch for both his work as administrative medical director as well as for any
surgical work he performed under these contracts.
       In his declaration, Koch states that after assuming the role of administrative
medical director, he continued to perform surgeries at Golden Gate Surgical in San Mateo
as well as surgical repair of complications in other Lifestyle Lift clinics through the first
half of 2010. Koch’s time performing operations decreased as his administrative and
training duties as medical director increased.
       Also in 2007, Kent retained Gordon Quick as a consultant. Kent sought advice
regarding improving Lifestyle Lift’s infrastructure and being CEO of a rapidly growing
company. In 2008, Kent made Quick President of SICM. In early 2010, Quick became
CEO of SICM and Kent became President. Quick hired Steven Higginbotham as SICM’s
Chief Operating Officer (COO).
II.    Koch’s Concerns and Complaints Regarding Dr. Farhan Taghizadeh and
       SICM Policies and Procedures
       In 2006, Kent hired a doctor named Farhan Taghizadeh to work in the Lifestyle
Lift clinic in Albuquerque, New Mexico. In September 2007, Koch received an email
from the Albuquerque clinic’s office manager which stated that many of Taghizadeh’s
patients were experiencing major infections or skin breaking down after surgery because
of Taghizadeh’s surgical methods. Koch believed these issues were due to Taghizadeh’s
inexperience and counseled Taghizadeh regarding his “poor work.”

       2
         Koch entered into a similar agreement with Defendant Lifestyle Florida East,
P.C. in October 2009.


                                              4
       At some point, Taghizadeh recommended to Quick that the Albuquerque clinic
obtain a surgical laser to provide skin treatment services and thus increase the clinic’s
business and revenue. Quick, after consultation with Kent, agreed and Taghizadeh
borrowed a laser from the Lutronic company for use in the Albuquerque clinic. This
resulted in a significant increase in revenue at the Albuquerque clinic. Based on this,
SICM, in 2009, began exploring whether it should purchase lasers for use in the other
Lifestyle Lift clinics. The company was considering lasers manufactured by four
different manufacturers, including Lutronic. In his declaration, Koch states that
representatives of all four laser manufacturers came to SICM’s headquarters to make
presentations on their lasers. He asserts that during these presentations, “Taghizadeh
behaved as if he was part of the Lutronic entourage, and presented his results in such a
biased way that [Koch] asked him if he had a consulting agreement with them. [Koch]
was chastised by Quick for this.” Koch developed a laser comparison study that would
permit Lifestyle Lift physicians to provide feedback on the various lasers. He was,
however, not permitted to complete this evaluation study. While Koch was still
attempting to set up tests of the competing lasers in the clinics, he was informed that
Quick had approved the purchase of approximately 30 Lutronic lasers, costing
approximately $75,000 each. Koch protested this decision to Kent, but Kent stated it was
Quick’s decision.
       After the decision to purchase the lasers was made, Koch began developing a
“Safe Start” training program designed to assist the doctors in learning to use the lasers.
Under this training program, the doctors were instructed to use the lasers at a lower
density setting for approximately 3 to 4 months until they became comfortable with the
lasers. It was expected that a separate “Advanced Settings” training would be released at
that point. However, in August 2009, Koch learned that Taghizadeh had been giving
separate training sessions to Lifestyle Lift doctors without Koch’s knowledge and was
recommending to the doctors that they use the laser’s full density setting. Also in August
2009, Koch learned that Taghizadeh had begun conducting “business integration”
meetings at the various Lifestyle Lift clinics, including those in California. These


                                              5
business integration meetings included discussions regarding pricing structures for
various procedures, the company’s bonus program, and attempting to integrate the sale of
laser procedures into the existing price points and packages offered by the clinics.
       In September 2009, Koch began complaining to Kent and Quick about
Taghizadeh. On September 6, Koch sent Kent an email stating that he felt his position as
medical director had been undermined after the laser selection. Koch wrote that his
“choices for our company laser were disregarded despite my extensive experience in the
area” and that Taghizadeh had made many inaccurate statements in support of the
Lutronic lasers. Regarding Taghizadeh’s business integration visits, he stated that he had
“agreed that Dr. Taghizadeh could visit centers for laser ‘business integration’ purposes”
but that many of the topics covered in these meetings addressed medical issues without
Koch’s prior review. He wrote that the visits “encroach[] on my duties as Director of the
Lifestyle Lift Laser Program and Medical Director. . . . Having Dr. Taghizadeh meddle
with my authority . . . only undermines the unified teaching message that we are trying to
give to the doctors.” At the end of the email, Koch requested: “Dr. Taghizadeh should
have no input, now or later, into any medical issues or decisions (including laser-related).
Such involvement into medical issues should not be pursued by Dr. Taghizadeh . . .
whether by meetings, telephone conferences, or during his ‘business integration’ visits. I
have known [Taghizadeh] for 3 years and my sincere professional opinion of him is that
he is a mediocre doctor who is blatantly self-promotional. We even considered replacing
him when he had surgical problems that required an urgent visit from me for technical
support. Also, according to PRG he has been doing free procedures to avoid news of his
complications from reaching Corp. Finally, and most importantly with regard to who
should solely be making medical decisions, I currently hold the title of Medical
Director.”
       On September 11, 2009, Koch sent a similar email complaining about
Taghizadeh’s business integration visits. He wrote: “I am also very concerned that half
of the topics of . . . Dr Taghizadeh’s ‘business integration’ center visits involve medical
issues—basic laser training, laser capabilities, and ancillary services . . . . This serves to


                                               6
undermine the unified teaching message that we are trying to give to the doctors during
this laser roll-out, and puts safety at risk.”
       At the end of September, Koch met with Kent and Quick to reiterate the concerns
he had expressed in these emails. Koch gave a presentation that stated: “[o]nly the
Medical Director is authorized to provide medical information and guidelines” and that
this “helps ensure that a uniform message is sent.” Regarding Taghizadeh’s business
integration visits, Koch argued that Taghizadeh should not be discussing medical or
training issues and should also not be soliciting training or medical questions from the
doctors. According to Koch, “Quick became so angry at [Koch’s] criticisms of Dr.
Taghizadeh that he yelled at [Koch] and tried to stomp out of the meeting.”
       Koch’s complaints about Taghizadeh continued over the subsequent months. On
November 19, Koch sent Kent another email, stating that he had “continuing concerns
about my position being undermined.” He informed Kent that Taghizadeh “continues to
solicit and answer medical questions about the laser instead of directing them to me. In
addition, he is showing the physicians on his Center visits different laser settings than
what we taught during our ‘Safe Start’ program. The purpose of this ‘Safe Start’ program
is so all of the physicians have a basic laser experience for safety/medico legal reasons
prior to rolling-out the advanced settings.” Koch stated that the “Medical Director should
be the only person who dispenses medical information,” and yet Taghizadeh was
dispensing medical information “as if it is ‘official’ company information.” Koch
warned that this practice “would be difficult to defend should a lawsuit arise from our
doctors following his medical directions.” Finally, Koch expressed “concern[] about
Corp Practice of Medicine issues with his center visits and the mixing of business and
medicine.” Koch followed up this email by sending Kent a copy of Taghizadeh’s
business integration meeting itinerary, telling Kent it was “[i]n reference to my email
about undermining and Corp Practice of Medicine.”
       In December 2009, Koch learned that Taghizadeh had been observing surgeries in
other clinics. During a presentation to a business committee on December 11,
Taghizadeh referenced that he observed a surgery during one of his visits to a California


                                                 7
clinic. Koch interrupted Taghizadeh and asked why he had done this. Quick exclaimed
to Koch “God damn it Jim, this is all about ego!” That same day, Koch emailed Kent
asking about Taghizadeh observing surgeries. Kent replied to Koch’s question by stating
“We can keep him in his center. He’s not needed in the offices.” Koch also wrote to
Kent that he had spoken to an office manager of one of the clinics who had complained
about the doctors in her office. The office manager stated that these complaints would be
“straightened out soon” because Taghizadeh was coming to visit. Koch cited this as
“another example of what I have been talking about regarding being undermined.” Kent
replied by stating he was “not sure what . . . [Taghizadeh is] doing to straighten
something out. Will you let me know what’s going on. I hope it isn’t medical! Why
wouldn’t she just tell you what the issues are?”3
       In addition to Koch’s complaints regarding Taghizadeh undermining Koch’s
authority, in late 2009, Koch began to receive complaints regarding Taghizadeh’s
improper behavior with staff and patients. In September 2009, Pola Lichtmacher, the
office manager of the Albuquerque clinic, sent an email to SICM senior executives,
including Koch and Quick, about Taghizadeh’s behavior. She wrote of Taghizadeh’s
“lack of professionalism, . . . sexual bantering, and unsafe medical practices.” She gave
examples of Taghizadeh discussing sexual preferences and behaviors with support staff,
making derogatory comments about patients while they were lightly sedated, throwing
instruments, and speaking on his cellular phone during surgery. Complaints in October
2009 included claims that Taghizadeh had pushed a patient into a chair, and had a
sexually explicit conversation during a procedure.
       In February 2010, in response to inquiries from Kent regarding programs that
could be cut to reduce SICM’s expenses, Koch wrote that Taghizadeh’s visits to the

       3
         At his deposition, Kent addressed this email and denied that he meant that
Taghizadeh should not be addressing medical issues. Rather, he stated that his email
simply expressed a hope that the issues in the clinic referenced by the office manager
were business related (such as issues between staff), rather than medical related. He
stated that Taghizadeh had his “blessing to go out and take care of medical issues
especially with the lasers.”


                                             8
various clinics could be cut. Koch wrote that “Taghizadeh is a poor surgeon with several
claims of inappropriate sexual behavior against him. His representing the company puts
us at risk, and we cannot afford his association with more lawsuits likely coming.”
       In April 2010 and again in June 2010, Koch had exchanges with SICM’s counsel,
the former during an investigation into a complaint about Quick. Koch states that he told
counsel that he feared he would be targeted for termination because of his “continual
protests to the company and Dr. Kent about both Dr. Taghizadeh and questionable
practices of the company that may have violated the California corporate practice of
medicine restrictions.”
III.   SICM Cash Flow Problems and Conway MacKenzie Recommendations
       Despite being profitable in 2009, SICM began to experience what Quick described
as a “financial crunch” in the first quarter of 2010. Banks which had previously offered
lines of credit to SICM called in those lines, requiring SICM to pay off approximately
$10 million in bank loans. Additionally, a downturn in the economy resulted in the
number of new patients plummeting.
       In the wake of these developments, SICM sought to conserve cash in a number of
ways. Relevant to this appeal, in April or May 2010 SICM retained the consulting firm
of Conway MacKenzie to find ways to reduce SICM’s expenses. Representatives from
Conway MacKenzie met with senior SICM staff (not including Koch) and discussed a
number of options and recommendations regarding potential cuts to reduce expenses. On
June 30, 2010, Conway MacKenzie provided a draft report of its findings and
recommendations. The copy of this report in the record has SICM’s financial
information redacted. The report stated, however, that “[f]ollowing the development of
the detailed weekly cash flow budget, it was apparent that a significant cash burn would
take place in the remainder of 2010.”
       Consequently Conway MacKenzie made a number of recommendations to reduce
operational expenses. These recommendations were categorized into one of four tiers.
“Tier 1” recommendations were “[s]avings actions to be implemented regardless of
financial performance”—that is, changes that were recommended to be made regardless


                                            9
of their impact on the business. “Tier 4” recommendations, by contrast, were to be
implemented if “financial performance continues to deteriorate and would involve drastic
action.” Relevant to this appeal, one of the “Tier 1” recommendations in the Conway
MacKenzie report was to “Reduce Jim Koch Pay to $400k.” This would have
represented a 43 percent cut to Koch’s $700,000 salary. Conway MacKenzie
recommended that the other members of the Senior Business Team have their base pay
cut 5 to 15 percent. SICM’s COO, Higginbotham, testified that the recommendation to
cut Koch’s salary was the result of a “side bar” conversation between Kent, Quick, and
Higginbotham. During this conversation, Higginbotham stated that, in his experience,
the general salary for an administrative medical director was between $300,000 to
$400,000 a year. Quick testified that the sole motivating reason behind the decision to
reduce Koch’s salary was his view that the appropriate market-based compensation for a
medical director in similar companies was $400,000 a year.4
IV.    Koch’s Separation with SICM
       The decision that Koch’s $700,000 salary should be reduced set in motion a series
of communications and actions that ultimately resulted in Koch’s separation from SICM.
The following is a chronology of those communications and events.
       On July 7, 2010, Jeff Mosley, SICM’s Chief Financial Officer, called Koch and
informed him of the recommended $300,000 a year pay cut. Koch then sent an email to
SICM’s former COO, Ken Field, writing “Evidently I am being targeted with a huge
paycut. I understand that all Execs need to take a paycut but it should be uniform. The
one proposed to me is targeted and deeply insulting. I spoke with my wife about this
situation and this is something we will not take. [¶] . . . [¶] Looks like this is the end of
the line for me with [Lifestyle Lift]. There is a relief in many ways. I hope we can start
working on the next project.”




       4
         Koch disputes that $400,000 is appropriate market-based compensation given his
training, traveling, and expert witness responsibilities.


                                              10
       After being informed of the proposed reduction, Koch and Kent exchanged a
series of e-mails. On July 8, Kent wrote Koch that “No one is against you . . . [Quick]
and I have laid out a plan for 4 people in the organization to become equity owners and
your [sic] one of them along with [Higginbotham] and [Quick]. I want you part of the
inner circle as a stake holder. . . . As an owner I think you will think and work differently
with the business (not that you already don’t but it will be different.) The payoff as an
owner will be tremendous. Please let [Quick] explain what we both came up with. I
want you part of the top decision makers for the company going forward. We have to
have a coherent team at the top[.]”
       On July 15, 2010, Koch confirmed his itinerary and travel plans to conduct a fat-
grafting training session with Lifestyle Lift doctors in the Cherry Hill, New Jersey clinic
on July 20, 2010.
       On July 16, Quick and Koch spoke about the Koch pay reduction; Quick told
Koch that he would have to take a 43 percent pay cut and that this reduction was “market
based.” Quick also stated that Koch’s assistant, Homer Abaya, would be terminated. On
July 17, Kent sent Koch an email stating: “Jim I hope you had a good call with
[Quick]. . . . I really think a short term hardship will pay off big time in the next few
[years]! I really want you part of the team at the top. The company will be so strong
after we get through this hard time from a cash standpoint. The calls are already going
back up significantly and the business will follow soon. All should go as planned and the
ownership portion will allow you and the rest of the top team to make a lot of money and
retire comfortably if that’s what you want. Please don’t look short term but see the big
picture. Please call me to discuss if needed but I’m sure you can see the possibility.”
       Koch replied to Kent the following day. He wrote that taking a “43% paycut when
other Execs are taking a 10-15% paycut is certainly more than ‘taking one for the team.’
In fact, [Quick] said that this reduction was about having ‘market-based compensation’
. . . and not related to our current cash flow problems.” He then reiterated his view that
$400,000 did not adequately reflect his value to Lifestyle Lift, closing the email by
stating: “If you want to base my salary on value to the company, then I should be


                                             11
compensated more than $700k but all that I requested was that my paycut be equitable.”
Kent replied by stating that “the bottom line is we have no money (cash) and we need to
cut a ton of costs. The economy has really caught up to us. Your [sic] very important to
the company and critical to its function. The rest of the [Senior Business Team] makes in
the low hundred thousand dollars and can’t drop 50 percent. I tried to make up the
difference plus a ton more with bonus equity so it ends with way more than 700k a year.”
       Koch sent three emails early in the morning on July 20, 2010. At 12:44 a.m., he
emailed Barbara Zarankin, an HR representative, asking that she file a number of
attached documents in his personnel file. These attachments generally recounted a
conversation he had with SICM’s outside counsel in April 2010 during which he
“outlined [his] concerns related to Corporate Practice of Medicine.”5 Then, at 1:53 a.m.,
Koch emailed SICM employees who were scheduled to attend the Cherry Hill, New
Jersey fat-grafting training and stated that he would not be attending the training
scheduled for 8:00 a.m. that morning.
       A minute later, Koch responded to Kent’s July 19 email, writing that Quick had
“made it very clear that my 43% paycut was a correction to ‘market-based
compensation.’ ” Further, while the “Equity Plan was briefly mentioned . . . specifics
were TBD. Likewise, [Quick] mentioned a ‘performance-based’ bonus plan but the
metrics for that were also TBD. Since I have never received a pay increase or bonus in
my time at [Lifestyle Lift], I am skeptical that I would ever see this.” Koch then closed
the email: “All in all, this is completely unacceptable. Unless you come back with a fair
pay reduction number (I will take the high end of what other Execs are taking—15%) and
with Homer continuing in his position, then I will assume that I am being terminated for
refusing to accept a paycut. I have not taken any vacation time in 2010 so will take my
remaining time starting now and this will be applied to the remainder of July. I have
several pending depositions related to [Lifestyle Lift] so Legal will need to reach an


       5
       Koch sent hard copies of these attachments to Zarankin on Saturday, July 19,
2010. Zarankin states she only filed the requested attachments.


                                             12
agreement with me on these. I will not be checking my [Lifestyle Lift] email any longer
so can be reached at [my personal email].” Koch did not inform Kent that he had been
scheduled to present a training session at 8:00 a.m. that morning in New Jersey and had
canceled it.
       Later on July 20, 2010, SICM terminated Koch’s medical malpractice insurance.
       On July 21, Koch sent emails to Ken Field and Patient Relations Group manager
Sara Thibeault, stating: “I have refused a 43% paycut in addition to Homer (my only
employee) being terminated. So as of now I am not working for [Lifestyle Lift].”
       On July 22, Zarankin emailed Quick asking if she should shut down Koch’s IT
access and Quick stated she should, resulting in Koch losing access to his SICM email.
Later that day, Quick emailed the Lifestyle Lift doctors stating that Koch had “decided to
resign his position as the Chief Medical Officer of Lifestyle Lift,” due to SICM’s
restructuring. Koch obtained a copy of this email and then emailed SICM’s three
regional directors: “I just want you to know that I did not resign. I refused to take a 43%
paycut when other Execs were taking 10-15% They are also going to terminate Homer,
my only employee.”
       At some point, Kent attempted to call Koch and left him a message. On July 24,
Koch sent Kent an email asking Kent what he wanted to discuss. Kent replied that same
day: “Why you decided not to accept the offer or even call me before just saying you
quit? I couldn’t believe you wouldn’t trade some short term paycheck money for equity.
I don’t get it. Also I don’t know what your [sic] thinking and still want you part of the
company . . . ? I’m lost as to what made you just jump ship without even a discussion but
thought if there’s even a chance of you staying in some way we should talk about it.”
       On July 29, Quick emailed the Lifestyle Lift doctors to address rumors about
financial problems at SICM and the Lifestyle Lift clinics. This email stated that Koch’s
departure was “not at all financially motivated, but rather motivated by differences
regarding the direction of the company. Despite making every effort to get all members
of the management team on the same page, it simply was not possible. . . . [T]he



                                            13
members of the management team that did not share the same vision have left and we
wish them well in their next endeavors.”
       On July 31, Kent emailed Koch and asked him if they were going to talk after his
vacation. The next day, Koch replied by stating that if Kent had a “significant
proposition for me, then please email it. I am not going to do legal work for [Lifestyle
Lift] at an hourly rate.” On August 2, Kent replied: “I hate that this has gone downhill. I
tried to make an amazing offer for you because I value you and you’re a friend who has
worked so hard for [Lifestyle Lift]. We have no money for anything until we get back on
our feet. We budgeted everything to the penny. . . . I made something for you so the
sacrifice today could bring you millions of dollars but you took it as a personal attack by
[Quick] even though I tried to explain everything and the situation. I know you’re not
just out to make a buck living paycheck to paycheck and thought being part of my inner
team and having ownership would be great. I feel bad for where we are today. You
won’t even talk to me. Is there any hope?”
V.     Koch Files This Lawsuit
       Koch filed this action on May 9, 2012, alleging three wrongful termination causes
of action against SICM as well as the individual Lifestyle Lift clinic professional
corporations with which he had contracted (clinic defendants).6 First, Koch alleged that
he had been terminated from SICM and the Lifestyle Lift clinics in retaliation for his
advocating for medically appropriate health care, in violation of Business and Professions
Code section 2056. Second, he asserted a claim for retaliation for his complaint of unsafe
care at a health care facility, in violation of Health and Safety Code section 1278.5.
Finally, he claimed retaliatory termination in violation of public policy. Each cause of
action claimed that Koch had been terminated in retaliation for his complaints regarding
Taghizadeh, detailed above.



       6
        The so-called clinic defendants are Coronado Surgery Associates, P.C.; Santa
Ana Surgery Associates, P.C.; Beverly Hills Plastic Surgery Center, P.C.; Golden Gate
Surgical, P.C.; and Lifestyle Florida East, P.C.


                                             14
       Defendants moved for summary judgment on all of Koch’s claims or, in the
alternative, for summary adjudication. As to claims against it, SICM made three
alternative arguments. First, relying on the language of the Medical Director Agreement
that referred to Koch as an independent contractor, SICM argued that Koch was an
independent contractor and not an employee and could therefore not assert wrongful
termination claims. Second, it argued that even if Koch was an employee, SICM had not
terminated him, but rather Koch had resigned. Finally, SICM argued that even if Koch
was an employee, and even if he had been terminated by SICM, Koch had failed to
demonstrate that the termination was in violation of Business and Professions Code
section 2056, Health and Safety Code section 1278.5, or public policy. As to the clinic
defendants, SICM argued that Koch had failed to demonstrate that he had been
terminated from any of the clinics or that he had suffered any damage.
       Koch opposed SICM’s motion. He argued that regardless of the language used in
the Medical Director Agreement, he was SICM’s employee because of the control it
exercised over his performance of his duties. Koch then contended that whether he was
terminated or resigned, and whether his termination was causally related to protected
activity under the asserted statutes, were disputed issues of fact. Koch did not request
additional time to conduct discovery pursuant to Code of Civil Procedure section 437c,
subdivision (h) before responding to the defendants’ motion.
       Koch relied primarily on his own declaration and supporting exhibits in opposing
SICM’s summary judgment motion. He also submitted a declaration of an economist in
support of his asserted damages, and a declaration by a California attorney, who was also
a physician, who opined that SICM’s policies and procedures constituted “corporate
practice of medicine” in violation of California law.
       The trial court held two hearings on SICM’s motion. Prior to the first hearing on
April 11, 2013, the trial court issued a tentative ruling granting SICM’s motion in full.
The tentative ruling stated that the “undisputed facts show that Defendants neither
reduced Plaintiff’s compensation nor terminated him.” At the hearing, the court heard
argument from both sides, and ultimately requested additional briefing on whether SICM


                                             15
subjected Koch to an adverse employment action. Regarding these briefs, Koch’s
attorney agreed with the trial court that no further evidence would be submitted and the
parties and the court would “work with what [they] have.”
       In addition to arguing why Koch had suffered an adverse employment action,
Koch’s supplemental brief requested a “further continuance” to permit Koch to obtain
deposition testimony from additional witnesses and to obtain an unredacted version of the
Conway MacKenzie report. Koch explained that additional depositions were necessary
because facts which demonstrated that Koch’s pay cut was part of a retaliatory plan
“became known to counsel too late to present the evidence to the Court in opposition to
the motion.” SICM opposed the request for a continuance, arguing that the request was
untimely, irrelevant, and that Koch’s attorney had agreed at the first hearing that no
further facts would be submitted.
       The court issued a second tentative ruling prior to the second hearing on April 29,
2013. This tentative ruling denied Koch’s request for a continuance and again found that
Koch had failed to raise a triable issue of fact as to whether he had been actually or
constructively discharged. The tentative ruling declined to address the parties’
evidentiary objections because the parties had failed to comply with California Rules of
Court, rule 3.1354 by not submitting a proposed order along with the objections. At the
hearing, the trial court acknowledged that the written format of the objections was
“correct” under the rules, but because there was no signature line for the judge to sign the
objections as an order, the court “declines” to rule on the objections. This meant that all
of the evidence would be included as part of the record. After hearing argument, the
court took the matter under submission.
       In a written order, the trial court granted SICM and the clinic defendants summary
judgment.7 The trial court noted that “termination is the common theme among all [of


       7
        As to each issue in the first cause of action for which defendants sought
summary adjudication, the trial court employed the confusing construct of identifying by
“UMF” (undisputed material fact) number those “Matters raised by Plaintiff that were not
genuinely disputed facts” and “Matters raised by Plaintiff that were disputed but were not

                                             16
Koch’s] causes of action” and that Koch had failed to establish that he had been
terminated by any of the defendants. The court recognized that termination of
employment can be either actual or constructive. As to Koch’s actual termination theory,
the court found there was “no evidence of actual termination. The employment, if any,
was at-will and pursuant to a written contract that contained a 30-day notice of
termination provision. Plaintiff submits no evidence that Defendant informed him that he
was terminated or that Defendant invoked the 30-day notice provision under the written
contract.” Because Koch’s contracts provided a procedure for termination, the court
found that Koch’s reliance on SICM terminating his medical malpractice insurance or
access to the company’s email system was misplaced. It stated: “The termination of the
malpractice insurance and plaintiff’s company e-mail account are not indicia of
termination, because the contract defines the methodology for termination.”
       The court found that Koch’s constructive discharge theory relied on Koch’s
assertion that a “43 percent reduction in salary could constitute such a drastic
employment condition that a reasonable employee would have no choice but to quit.”
The court, however, found that this theory failed because it was “undisputed that
Defendant SICM informed Plaintiff of an intent to reduce his annual salary” and that


material facts.” The trial court described the difference: “In response to each of the
undisputed material facts offered by defendants, Plaintiff attempted to fully or partially
dispute various facts within each of the three issues. Some of the purportedly disputed
facts were not genuinely disputed. Other disputed facts raised by Plaintiff were not
material facts. Courts are not precluded from granting summary judgment merely
because the parties dispute immaterial facts.” As to the latter category (“disputed but . . .
not material facts”), it appears that the trial court in effect determined that many of
defendants’ UMF’s in their separate statement weren’t material at all, and thus plaintiff’s
disputes as to those “immaterial” facts were equally immaterial and did not preclude
granting summary adjudication for defendants. As a leading treatise has advised:
“PRACTICE POINTER: . . . Include only those facts which are truly material to the
claims or defenses involved because the separate statement effectively concedes the
materiality of whatever facts are included. Thus, if a triable issue is raised as to any of
the facts in your separate statement, the motion may be denied!” (Edmon, Rylaarsdam &
Karnow, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015)
¶ 10.95.1, p. 10-36.)


                                             17
“Plaintiff refused to accept the reduction and asked for another proposal.” It noted that
after requesting another proposal, Koch told colleagues that “as of now I am not working
for LSL” and that “[a]t the time Plaintiff’s employment ended, his $700,000 annual
salary was still in effect.” The court also rejected Koch’s argument that the “mere threat
to reduce his salary” could constitute an act of retaliation to support his wrongful
termination claims. Accordingly, the court concluded: “Plaintiff offers no evidence that
Defendant ever imposed the proposed pay reduction, or any pay reduction at all. Thus,
there is no merit to the claim that Defendants retaliated by ‘substantially reducing his
compensation.’ ” After having provided this reasoning, the trial court then noted that
“Plaintiff has alleged no such cause of action for retaliatory constructive termination in
his complaint.”
       Despite stating at the hearing that the parties had waived their evidentiary
objections by failing to submit a proposed order, the trial court ruled on the objections in
the summary judgment order, identifying the objection by paragraph number and stating,
without more, whether the objection was overruled or sustained. The trial court denied
Koch’s request for a continuance, stating: “discovery on the reasons for termination are
irrelevant. The Court makes this ruling given Plaintiff’s failure to establish the essential
element of termination as to each cause of action.”
                                        DISCUSSION
I.     Applicable Legal Principles
       A motion for summary judgment “shall be granted if all the papers submitted
show that there is no triable issue to any material fact and that the moving party is
entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment has the initial burden of showing either that
one or more elements of the cause of action cannot be established or that there is a
complete defense. (Id., § 437c, subd. (p)(2).) If that initial burden is met, the burden
shifts to the plaintiff to show the existence of a triable issue of fact with respect to that
cause of action or defense. (Ibid.; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 850-853.) On appeal, “ ‘we take the facts from the record that was before the trial


                                               18
court when it ruled on that motion. [Citation.] “ ‘We review the trial court’s decision de
novo, considering all the evidence set forth in the moving and opposing papers except
that to which objections were made and sustained.’ ” [Citation.] We liberally construe
the evidence in support of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party. [Citation.]’ [Citation.]” (Wilson v. 21st
Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.)
       In his complaint, Koch contends he was wrongfully terminated in violation of (1)
Business and Professions Code section 2056, (2) Health and Safety Code section 1278.5,
and (3) public policy. Each of these three wrongful termination causes of action alleges
that Koch complained of certain SICM policies and procedures, that these complaints
were protected under the respective statutes, and that SICM retaliated against Koch for
these complaints by terminating him.
       The legal standard applicable to these claims is well established: “When a plaintiff
alleges retaliatory employment termination either as a claim under the FEHA or as a
claim for wrongful employment termination in violation of public policy, and the
defendant seeks summary judgment, California follows the burden shifting analysis of
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [(McDonnell Douglas)] to
determine whether there are triable issues of fact for resolution by a jury. [Citation.] In
the first stage, ‘the plaintiff must show (1) he or she engaged in a “protected activity,” (2)
the employer subjected the employee to an adverse employment action, and (3) a causal
link existed between the protected activity and the employer’s action.’ (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If the employee successfully
establishes these elements and thereby shows a prima facie case exists, the burden shifts
to the employer to provide evidence that there was a legitimate, nonretaliatory reason for
the adverse employment action. (Morgan v. Regents of the University of California
(2000) 88 Cal.App.4th 52, 68.) If the employer produces evidence showing a legitimate
reason for the adverse employment action, ‘the presumption of retaliation “ ‘ “drops out
of the picture” ’ ” ’ [citation], and the burden shifts back to the employee to provide
‘substantial responsive evidence’ that the employer’s proffered reasons were untrue or


                                             19
pretextual.” (Loggins v. Kaiser Permanente International (2007) 151 Cal.App.4th 1102,
1108-1109 (Loggins).)8
       California courts have split regarding how the McDonnell Douglas burden-shifting
framework applies in the summary judgment context. On one hand, many decisions have
recognized that the McDonnell Douglas framework was “originally developed for use at
trial [citation], not in summary judgment proceedings” and, as a result, the burdens are
actually reversed at the summary judgment stage, requiring that the defendant seeking
summary judgment introduce evidence either that one or more of plaintiff’s prima facie
elements is lacking or that the adverse employment action was based on legitimate, non-
retaliatory reasons. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.)
“ ‘[A]lthough the burden of proof in a [discrimination] action claiming an unjustifiable
[termination] ultimately rests with the plaintiff . . . , in the case of a motion for summary
judgment or summary issue adjudication, the burden rests with the moving party to
negate the plaintiff’s right to prevail on a particular issue. . . . In other words, the burden
is reversed in the case of a summary issue adjudication or summary judgment
motion[.]’ ” (Ibid., quoting Sada v. Robert F. Kennedy Medical Center (1997) 56
Cal.App.4th 138, 150-151.) On the other hand, other courts have suggested that plaintiffs
can survive an employer’s motion for summary judgment only by introducing evidence at
the outset that they can satisfy their prima facie case. (See Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 356-357 [describing, but not resolving, this split].)


       8
         No published California case has articulated the standard to be applied in a
retaliatory termination claim brought pursuant to Business and Professions Code section
2056 or Health and Safety Code section 1278.5. [re-check this before filing] However,
both California and federal cases have employed the burden-shifting McDonnell Douglas
framework for analyzing discrimination or retaliation claims brought under a number of
statutes. (See, e.g., Harrington v. Aggregate Industries Northeast Region, Inc. (1st Cir.
2012) 668 F.3d 25, 30 [False Claims Act, 31 U.S.C. § 3730(h)(1)]; Akers v. County of
San Diego (2002) 95 Cal.App.4th 1441, 1453 [FEHA and Labor Code, § 1102.5, subd.
(b)].) Therefore, we apply this well-established framework to analyze Koch’s claims that
he was terminated in violation of Business and Professions Code section 2056 and Health
and Safety Code section 1278.5


                                              20
       We conclude that the former approach is most consistent with California summary
judgment law, which “places the initial burden on a moving party defendant to either
negate an element of the plaintiff’s claim or establish a complete defense to the claim.”
(Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 965.) Thus,
an “employer defendant may meet its initial burden on summary judgment, and require
the employee plaintiff to present evidence establishing a triable issue of material fact, by
presenting evidence that either negates an element of the employee’s prima facie case, or
establishes a legitimate nondiscriminatory reason for taking the adverse employment
action against the employee.” (Id. at p. 966.) This is the standard we will apply in
reviewing the trial court’s grant of SICM’s motion for summary judgment.
II.    Koch’s Evidentiary Challenges
       Koch argues that the trial court did not properly consider plaintiff’s evidence
because it sustained many of SICM’s objections to evidence. Koch does not make
complete arguments as to any specific objections, but rather generally states that “none”
of the trial court’s evidentiary rulings were correct and SICM’s evidentiary objections
were “in all respects entirely frivolous.” In support of this general argument, Koch
contends that the various theories SICM asserted in support of many of its objections—
for example, lack of foundation, hearsay, secondary evidence rule—were without merit,
and cites some examples. SICM does not address these issues in its respondent’s brief.
       Koch’s complaints against SICM’s approach to evidentiary objections have some
merit. SICM did not make just one objection to a given item of evidence. It took the
blunderbuss approach. SICM raised more than 85 numbered objections to the various
declarations Koch submitted in opposition to summary judgment, but frequently made
multiple objections to the same testimony: for example, lack of foundation, lack of
personal knowledge, speculation, improper opinion, improper legal conclusion, and the
secondary evidence rule. Conservatively estimating that SICM raised about four separate
objections to each of the approximately 85 numbered objections, SICM raised in excess
of 340 objections to the four declarations submitted by Koch. This approach to
objections leads us to ask the same question we did in Nazir v. United Airlines, Inc.


                                             21
(2009) 178 Cal.App.4th 243, 257 (Nazir): “Can this be serious? Can counsel see
themselves rising at trial with those objections while plaintiff is testifying before a jury?”
The answer is plainly no.
       This indiscriminate approach to making objections obviously made it difficult for
the trial court to rule on the objections. In the face of multiple objections to the same
material, the court was presented with a written document that asked it only to check the
line “sustained” or “overruled.” In its separate written order, the court simply listed by
objection number those objections it sustained and overruled, without more. A further
consequence of SICM’s approach is that we have no basis on this record to understand
the ground for the trial court’s rulings as to what amounts to hundreds of objections.
       Koch contends broadly that the “no foundation” objections appear to be frivolous,
and again SICM is notably silent in response. Koch asserts that twenty four of the
sustained objections to Koch’s declaration had “no foundation” as one of the multiple
grounds for objection, together with speculation, lack of personal knowledge, and
improper opinion. SICM does not dispute that assertion, either. But Koch’s assertions
are not sufficient to make the argument that the objections to evidence that were
sustained were thus all decided erroneously.
       In the same vein, it is not sufficient in this appeal for Koch to assert simply that
the “secondary evidence rule” is a “meritless” basis for seven objections to evidence, or
that “authentication” was not a proper basis for three others, or that the hearsay
objections are all “equally meritless.” First, this isn’t argument. “One cannot simply say
the [trial] court erred, and leave it up to the appellate court to figure out why.” (Niko v.
Foreman (2006) 144 Cal.App.4th 344, 368.) “It is the responsibility of the appellant . . .
to support claims of error with meaningful argument and citation to authority. (Cal.
Rules of Court, rule 8.204(a)(1)(B); Badie v. Bank of Am. (1998) 67 Cal.App.4th 779,
784-785.) When legal argument with citation to authority is not furnished on a particular
point, we may treat the point as forfeited and pass it without consideration. [Citations.]”
(Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Nor can we be expected to
search the record to determine whether there is support for Koch’s wide sweeping


                                              22
contentions. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-
546.) Second, even if we were to find merit in Koch’s assertions on these particular
points, it still doesn’t address the merits of the numerous other asserted evidentiary
grounds on which the trial court might have sustained an objection to certain testimony—
none of which he addresses.
       Further, Koch fails to inform us which evidentiary rulings actually matter to the
determination of this appeal. On this score, once again SICM remains silent. SICM does
not address the merits of Koch’s evidence argument, nor does it contend that any of the
evidence cited by Koch in its opening brief is outside the record.
       On this record and with the briefs before us, we decline to walk through each of
the objections sustained by the trial court to determine whether the ruling was correct.
Instead, to the extent that we find that evidence to which an objection was sustained is
relevant to our holding, we will address the evidentiary objections in the sections that
follow.
III.   Koch’s Prima Facie Case
       SICM argues in its brief, as it did before the trial court, that Koch cannot meet the
elements of a prima facie case for retaliation under any of his causes of action. It
contends that the undisputed evidence demonstrates that Koch did not engage in
“protected activity” for purposes of the statutes on which Koch relies, that SICM did not
discharge Koch, and that Koch cannot demonstrate any causal connection between any
protected activity and an adverse employment action. We disagree and find factual
disputes on each of these prima facie elements.
       A.     Protected Activity
       SICM contends that Koch’s various complaints, detailed above, do not constitute
“protected activity” under either Business and Professions Code section 2056 or Health
and Safety Code section 1278.5. We address each statute in turn.
              1.     Business and Professions Code Section 2056
       Business and Professions Code section 2056 is designed to “provide protection
against retaliation for physicians who advocate for medically appropriate health care for


                                             23
their patients.” (Bus. & Prof. Code, § 2056, subd. (a).) The statute defines “advocate for
medically appropriate health care” as including “to protest a decision, policy, or practice
that the physician, consistent with that degree of learning and skill ordinarily possessed
by reputable physicians practicing according to the applicable legal standard of care,
reasonably believes impairs the physician’s ability to provide medically appropriate
health care to his or her patients.” (Id., § 2056, subd. (b).)
       SICM argues that Koch’s complaints regarding Dr. Taghizadeh and the alleged
corporate practice of medicine do not fit within the protections of this statute because
Koch was complaining about his own influence and clout within SICM being eroded.
They assert that Koch was not complaining that SICM’s policies were interfering with his
ability to provide medically appropriate health care to his patients.
       As an initial matter, Koch contends that SICM failed to raise this argument in their
motion for summary judgment or separate statement of undisputed material facts. Not so.
SICM expressly argued in its motion for summary judgment that there “exists no
evidence that Plaintiff advocated medically appropriate health care for patients under
Business and Professions Code section 2056.” Further, in the section of its separate
statement devoted to Koch’s section 2056 claim, the third issue identified for resolution
was SICM’s contention that there was “no evidence of any causal connection between
Plaintiff’s alleged termination and activity protected under Business and Professions
Code Section 2056.” (Emphasis added.) The allegedly undisputed facts presented by
SICM in this section include descriptions of Koch’s complaints to SICM personnel
regarding Dr. Taghizadeh and the purported corporate practice of medicine. It is thus
apparent that this argument was properly presented to the trial court.
       SICM argues that Koch’s complaints about Dr. Taghizadeh or the alleged
corporate practice of medicine had nothing to do with Koch “providing medically
appropriate health care to [Koch’s] own patients.” We conclude that Koch has
demonstrated that there is a triable dispute of material fact on this point. Koch’s
complaints regarding Taghizadeh’s practices included concerns regarding patients
receiving “medically appropriate health care.” For example, Koch in his declaration


                                              24
described developing a “Safe Start” training program to roll out the newly purchased
lasers in Lifestyle Lift clinics and get the physicians used to operating them. Koch
discovered that Dr. Taghizadeh was going beyond this training program and advocating
the use of advanced settings beyond those covered in the Safe Start training program,
resulting in a patient being injured. Koch complained about this in an email to Kent,
writing that Taghizadeh was “showing the physicians on his Center visits different laser
settings than what we taught during our ‘Safe Start’ program. The purpose of this ‘Safe
Start’ program is so all of the physicians have a basic laser experience for
safety/medicolegal reasons prior to rolling-out the advanced settings.” The record
contains additional instances of Koch complaining that because of Dr. Taghizadeh’s
practices, SICM was unable to present a “uniform message” regarding training or
medical information and that this “puts safety at risk.”
       More generally, Koch’s complaints to Kent raised the concern that mixing
business and medical considerations would run afoul of restrictions on corporate practice
of medicine. For example, in an email to Kent, Koch expressed concerns that
Taghizadeh’s business integration visits improperly mixed business and medicine in
violation of corporate practice of medicine rules. Further, in his declaration, Koch
asserted that he told SICM’s counsel of his complaints regarding his “concerns about
California corporate practice of medicine restrictions” and “questionable practices of the
company that may have violated the California corporate practice of medicine
restrictions.” While the precise nature of these complaints is unclear, in the paragraphs
leading up to these statements, Koch outlines a number of SICM policies that, in his
opinion, constituted undue corporate influence into physician’s decisions—such as
supervising and controlling work schedules and employment conditions or basing a
physician’s compensation, in part, based on the number of surgeries performed by that




                                             25
physician compared to the number of patients that doctor saw. It is a reasonable
inference that these are the practices that Koch related to SICM’s counsel.9
       California’s restriction on the corporate practice of medicine is “meant ‘to protect
the professional independence of physicians and to avoid the divided loyalty inherent in
the relationship of a physician employee to a lay employer.’ ” (California Physicians’
Service v. Aoki Diabetes Research Institute (2008) 163 Cal.App.4th 1506, 1514, quoting,
       9
          It is unclear whether SICM objected to Koch’s assertion that he relayed
complaints to SICM’s attorney, and equally unclear whether the trial court sustained
these objections and, if so, on what ground. This was because SICM’s objections fail to
comply with California Rules of Court, rule 3.1354, which requires a party objecting to
evidence to “Quote or set forth the objectionable statement of material[.]” (See also
Nazir, supra, 178 Cal.App.4th at p. 256 [“Over 250 of the sustained objections failed to
quote the evidence objected to, in violation of California Rules of court, rule 3.1354.”])
Although SICM purported to list the paragraph number and lines of text to which it was
objecting, it repeatedly failed to quote the entirety of the statement. For example, SICM
purported to object to the entirety of Paragraph 59 of the declaration by Koch in
opposition to summary judgment, but it omitted material in the middle of and at the end
of Paragraph 59. This makes it unclear whether SICM intended to object to the entire
paragraph or only those portions of the paragraph that it chose to quote. This uncertainty
was compounded by SICM’s blunderbuss approach to making every conceivable
objection to every objected-to piece of evidence. Thus when the trial court simply stated
that a particular numbered objection was sustained, it is impossible for us to tell what
testimony is at issue and on what ground the objection was sustained. In any event, if
SICM in fact objected to Koch’s statements to the SICM attorneys as hearsay, and if that
is in fact an objection sustained by the trial court, this was error. The fact that Koch
discussed his concerns with SICM’s attorney is not offered to show the truth of his
complaints, but rather to demonstrate that he raised these concerns to SICM’s counsel.
Further, while SICM argues these paragraphs are inconsistent with his deposition
testimony because Koch allegedly “testified that he did not make any other complaints to
. . . anyone else at SICM . . . other than those related to Dr. Taghizadeh’s Business
Integration visits,” the cited portions of Koch’s deposition reveal no contradiction.
       Similarly, SICM apparently objected on multiple grounds to the paragraphs of
Koch’s declaration where he described various policies and practices by SICM that Koch
found objectionable. The trial court apparently sustained some of these objections as
well, for reasons unknown. To the extent Koch expressed legal opinions in these
paragraphs, the trial court properly sustained the objection. However, as discussed
above, given Koch’s position as SICM’s medical director and member of the Senior
Business Team, Koch could provide testimony as to SICM’s policies and practices, and it
was error to exclude it.


                                            26
California Medical Assn. v. Regents of University of California (2000) 79 Cal.App.4th
542, 550.) It is therefore a policy meant to protect patients. A jury could reasonably
conclude that Koch’s complaints regarding the corporate practice of medicine involved
his concern that SICM was improperly interfering with SICM’s physicians’ ability to
render medically appropriate care. Accordingly, SICM is correct that Koch complained
about his position as medical director being undermined by Taghizadeh and policies that
he felt violated the bar on the corporate of medicine. However, these complaints go
beyond what SICM describes as an internal struggle regarding the “distribution of power”
and included complaints that implicated patient safety and care.
       Further, a jury could reasonably conclude that these complaints related to Koch’s
ability to provide medically appropriate health care to “his” patients. First, it is
undisputed that Koch provided surgical services in five Lifestyle Lift clinics and
therefore saw patients. Because SICM’s policies and practices applied to these clinics, a
jury could thus conclude that the policies and practices affected Koch’s ability to provide
health care to his patients. Second, in his declaration, Koch stated that one of his duties
as SICM’s medical director was to provide “medical advice to physicians when requested
in the treatment of patients at Lifestyle Lift clinics.” Koch asserted that this established a
“doctor-patient relationship with these patients.”10 Koch’s role as consultant for
physicians treating patients is confirmed by the Medical Director Agreement which
provides that Koch would provide medical advice to physicians.
       SICM finally argues that Koch’s complaints regarding Dr. Taghizadeh and
Taghizadeh’s and SICM’s alleged violation of the ban on corporate practice of medicine
were not “reasonable” as required by the statute. However, SICM did not raise this
argument before the trial court. While SICM did argue in the trial court that there was
“no possible reasonable basis for believing Dr. Taghizadeh was an incompetent doctor,”
it did not argue that Koch’s complaints regarding the purported corporate practice of

       10
         SICM objected to the statement that Koch had a “doctor-patient relationship”
with these patients, but the trial court overruled this objection and SICM has not
challenged this ruling.


                                              27
medicine were unreasonable. Rather, SICM simply argued that “these complaints have
nothing to do with Plaintiff giving medically appropriate health care to his own
patients”—an argument we have now rejected. Accordingly, SICM has waived the
argument that Koch’s complaints regarding the corporate practice of medicine were
unreasonable. (See Newton v. Clemons (2003) 110 Cal.App.4th 1, 11 [“ ‘Generally,
issues raised for the first time on appeal which were not litigated in the trial court are
waived. [Citations.]’ ”)11
       As a result, Koch has demonstrated that a triable issue of fact exists as to whether
he engaged in activity protected under Business and Professions Code section 2056.
              2.      Health and Safety Code Section 1278.5
       Health and Safety Code section 1278.5 states that it is the “public policy of the
State of California to encourage patients, nurses, members of the medical staff, and other
health care workers to notify government entities of suspected unsafe patient care and
conditions. . . . The Legislature finds and declares that whistleblower protections apply
primarily to issues relating to the care, services, and conditions of a facility and are not
intended to conflict with existing provisions in state and federal law relating to employee
and employer relations.” (Health & Saf. Code, § 1278.5, subd. (a).) This provision
therefore prohibits a “health facility” from retaliating against any “patient, employee,
member of the medical staff, or any other health care worker of the health facility”
because the individual has “[p]resented a grievance, complaint, or report to the facility, to
an entity or agency responsible for accrediting or evaluating the facility, or the medical

       11
          Even if we were to address the merits of this argument, however, we would find
that Koch had demonstrated the existence of a genuine dispute on this point. Koch
presented the declaration of Kevin Jorgensen, an attorney whose practice focuses on
healthcare law representing physicians, who, after reviewing the evidence proffered at the
summary judgment stage, opined: “[T]he control which SICM has over the various
MEDICAL GROUPS in California impermissibly invades into medical decisions and
violates the corporate practice of medicine prohibition.” Jorgensen similarly opined that
SICM’s policies improperly resulted in the “commercialism of medicine.” Jorgensen’s
declaration provides a basis on which a jury could conclude that the corporate practice of
medicine concerns raised by Koch were reasonable.


                                              28
staff of the facility, or to any other governmental entity.” (Id., § 1278.5, subd. (b)(1)(A).)
While this section does “not explicitly limit the type of ‘grievance, complaint, or report’
for which retaliation is prohibited to one involving concerns about the quality of patient
care,” this limitation is “implicit in other provisions of the statute.” (Fahlen v. Sutter
Central Valley Hospitals (2014) 58 Cal.4th 655, 667, fn. 6.)
        SICM argues that Koch did not complain about unsafe patient care and therefore
did not engage in any protected activity for purposes of Health and Safety Code section
1278.5. Its arguments on this point mirror those it raised to argue why Koch did not
engage in protected activity under Business and Professions Code section 2056. We
conclude that Koch has demonstrated the existence of a triable issue of fact as to whether
he engaged in protected activity under Health and Safety Code section 1278.5. An
extended discussion is not necessary on this point. For the reasons discussed above, just
as a jury could reasonably conclude that Koch’s complaints constitute “advocacy for
medically appropriate health care” under Business and Professions Code section 2056, so
too could a jury conclude that his complaints sought to address issues of unsafe patient
care.
        SICM next contends that Health and Safety Code section 1278.5 is inapplicable
because SICM and the clinic defendants are not “health facilities” as defined by statute.
“Health facility” is defined in Health and Safety Code section 1250 as follows: “As used
in this chapter, ‘health facility’ means a facility, place, or building that is organized,
maintained, and operated for the diagnosis, care, prevention and treatment of human
illness, physical or mental, including convalescence and rehabilitation . . . for one or
more persons, to which the persons are admitted for a 24-hour stay or longer[.]”
(Emphasis added.) SICM argues that Lifestyle Lift patients are not admitted for a 24-
hour stay or longer.




                                              29
       SICM has failed to demonstrate the absence of a triable issue as to whether SICM
or the clinic defendants are “health facilities.”12 In its brief, SICM argues that there is
“no evidence that any Lifestyle Lift patient is admitted for 24-hour stays.” By this
statement, however, SICM seeks to shift its burden of demonstrating that Koch cannot
make his prima facie case to Koch. As discussed above, this is improper. Before the trial
court, SICM failed to introduce evidence showing that Lifestyle Lift patients are not
admitted for 24-hour stays. On appeal, SICM relies on Koch’s description of the
Lifestyle Lift procedure as being a “minimally invasive method of facial cosmetic
surgery requiring only a local anesthetic and thus no hospitalization.” This statement,
however, does not demonstrate that Health and Safety Code section 1278.5 is
inapplicable. A general description of the Lifestyle Lift procedure or the fact that
hospitalization was not “required” does not mean that patients were not admitted to a
Lifestyle Lift clinic for recovery periods in excess of 24-hours. Accordingly, SICM has
failed to meet its burden of demonstrating the absence of a triable issue on this point.
       B.     Adverse Employment Action
       Throughout this litigation, SICM has argued that it did not subject Koch to any
adverse employment action because SICM did not terminate him. Rather, it has
contended that Koch resigned his position. The trial court agreed with SICM and granted
SICM’s motion for summary judgment on the basis that Koch had failed to demonstrate
that he had been terminated by SICM.
       Koch first contends that the trial court erred in requiring him to show that he was
terminated (or constructively discharged) by SICM in order to proceed with his statutory
retaliation claims. Instead, Koch argues that his causes of action brought under Business
and Professions Code section 2056 and Health and Safety Code section 1278.5 merely


       12
         In any event, this issue is not properly before us on appeal. In their motion for
summary judgment and moving papers in the trial court, SICM did not raise the issue of
whether Lifestyle Lift clinics were “health facilities” for purposes of liability under
Health and Safety Code section 1278.5. The issue was not raised until SICM’s reply
brief. Counsel for SICM conceded this point at oral argument before us.


                                              30
require him to demonstrate that SICM subjected him to an adverse employment action,
short of termination, in retaliation for his protected activity. He states that he introduced
sufficient evidence of such adverse employment actions, such as SICM drastically
reducing his salary, cancelling his malpractice insurance, or terminating his
administrative assistant.
       Koch is correct that both Business and Professions Code section 2056 and Health
and Safety Code section 1278.5 generally prohibit retaliatory acts, including those short
of termination. Business and Professions Code section 2056 provides that “[n]o person
shall terminate, retaliate against, or otherwise penalize a physician and surgeon for that
advocacy [of medically appropriate care].” (Id., § 2056, subd. (c).) Health and Safety
Code section 1278.5 states that the discriminatory treatment of an employee barred by the
statute “includes, but is not limited to, discharge, demotion, suspension, or any
unfavorable changes in, or breach of, the terms or conditions of a contract, employment,
or privileges of the employee . . . or the threat of any of these actions.” (Health & Saf.
Code, § 1278.5, subd. (d)(2).) The plain text of these statutes reveal that both sections
prohibit an employer from taking any adverse action against an employee in retaliation
for that employee engaging in activity protected by the statutes.
       That Koch could have asserted retaliation causes of action under both statutes
based on adverse employment actions short of termination does not mean that he did so.
At the summary judgment stage, Koch’s claims are limited to those asserted in his
complaint. “ ‘The pleadings delimit the issues to be considered on a motion for summary
judgment. [Citation.]’ [Citation.] Thus, a ‘defendant moving for summary judgment
need address only the issues raised by the complaint; the plaintiff cannot bring up new,
unpleaded issues in his or her opposing papers.’ [Citation.]” (Laabs v. City of Victorville
(2008) 163 Cal.App.4th 1242, 1253.)
       Koch asserted three claims in his complaint and labeled each of them as a claim
for wrongful termination: (1) “Wrongful Termination in Violation of Business and
Professions Code Section 2056”; (2) “Wrongful Termination in Violation of Health and
Safety Code Section 1278.5”; and (3) “Wrongful Termination in Violation of Public


                                             31
Policy.” Under each cause of action, Koch alleged first that “Defendants retaliated
against Plaintiff by initially substantially reducing his compensation and then terminating
him” and second that the “actions of Defendants in retaliating against Plaintiff by
terminating his employment was malicious and oppressive.” (Emphases added.) Thus,
while the statutory provisions on which Koch relies prohibit retaliation in the form of any
adverse action, Koch’s complaint narrowly alleged that SICM retaliated against him by
terminating his employment.13 Accordingly, in order to defeat summary judgment, Koch
must demonstrate a triable issue of fact as to whether SICM retaliated against him by
discharging him. (Cf. Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337,
1343 [“To prevail on a claim for wrongful termination . . . a plaintiff must show . . . the
defendant discharged the plaintiff”].) As discussed below, however, these “lesser”
adverse employment actions are nonetheless relevant to determine whether SICM
terminated Koch.
       A termination can be either actual or constructive. (See Steele v. Youthful
Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [“ ‘Constructive discharge, like
actual discharge, is a materially adverse employment action.’ ”]) In the Title VII context
(42 U.S.C. § 2000e-3(a)), federal courts have noted that an actual discharge “ ‘occurs
when the employer uses language or engages in conduct that would logically lead a
prudent person to believe his tenure has been terminated.’ ” (Fischer v. Forestwood Co.

       13
          This reading of Koch’s complaint is supported by Koch’s briefing before the
trial court. In his brief opposing summary judgment, Koch argued: “Contrary to
Defendants’ arguments, the overwhelming undisputed facts in this case point to but one
conclusion: that Koch was an employee of Defendants who was terminated in retaliation
for repeatedly complaining about Defendants’ violations of California law involving
patient safety, the illegal corporate practice of medicine and sexual harassment of patients
and employees[.]” He further argued: “Whether Dr. Koch is deemed an employee or an
independent contractor, it is undeniable that he was in a contractual relationship with
SICM which was terminated after he opposed SICM’s illegal policies, practices and
procedures. This is exactly what Business and Professions Code section 2056 and Health
and Safety Code section 1278.5 were designed to protect against.” Nowhere in this brief
did Koch contend that the court should deny defendants’ motion for summary judgment
because his statutory claims were actionable without a showing of termination.


                                             32
(10th Cir. 2008) 525 F.3d 972, 979-980, quoting Chertkova v. Connecticut General Life
Ins. Co. (2d Cir. 1996) 92 F.3d 81, 88.)14 A constructive discharge, by contrast, “occurs
when the employer’s conduct effectively forces an employee to resign. Although the
employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily
by the employer’s acts, against the employee’s will. As a result, a constructive discharge
is legally regarded as a firing rather than a resignation.” (Turner v. Anheuser-Busch, Inc.
(1994) 7 Cal.4th 1238, 1244-1245.)
       Koch contends that he introduced sufficient evidence to create a triable issue as to
whether SICM actually or constructively discharged him. SICM contends that plaintiff
may not rely on a constructive discharge theory because he failed to plead it in his
complaint. SICM is correct that Koch’s complaint does not expressly plead constructive
discharge, but rather generally alleged that SICM “terminated” him. For example, he
alleged: “Immediately after the Company’s receipt of that letter, Quick terminated
Plaintiff from his positions with the Company.” In addition, Koch did not argue a
constructive discharge theory in his brief in opposition to SICM’s motion for summary
judgment. Instead, he simply argued that whether he “was fired or quit is a disputed
material fact.” It appears the question of whether SICM constructively discharged Koch
was first raised by the trial court. In its order granting summary judgment, the trial court
stated: “At the conclusion of the [first] hearing [on SICM’s motion for summary
judgment], this Court invited Plaintiff to submit further briefing to address the three
issues stated in the previous tentative ruling dated April 11, 2013: whether (1) plaintiff’s
salary was reduced, (2) Defendants discharged Plaintiff, and (3) Defendants
constructively discharged Plaintiff.” Ultimately, we need not reach the question of

       14
          Because California law prohibiting employment discrimination and retaliation is
similar to federal law, “California courts look to pertinent federal precedent when
applying our own statutes.” (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 354,
see also Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476
[“Lawsuits claiming retaliatory employment termination in violation of [FEHA] are
analogous to federal ‘title VII’ claims . . . , and are evaluated under federal law
interpreting title VII cases”].)


                                             33
whether Koch properly raised the issue of constructive discharge in his complaint,
because we find that Koch has demonstrated a triable issue as to whether SICM actually
terminated him.
       The triable issue on this question is created by the fact that both Koch’s and
SICM’s actions in July 2010 are subject to competing, and reasonable, interpretations.
On one hand, SICM argues that the 43 percent pay cut, which ultimately led to Koch’s
separation from SICM, was merely “proposed” and that Quick never told Koch “whether
or when” the pay cut could be implemented. Further, SICM can point to Koch’s July 20
email to Kent in which he stated that unless Kent came “back with a fair pay reduction
number . . . and with [Koch’s assistant] continuing in his position, then I will assume that
I am being terminated for refusing to accept a paycut.” In this same email Koch stated
that he would not be checking his work email “any longer” and that SICM’s legal
department would “need to reach an agreement with [Koch]” regarding several pending
depositions. It can then point to the fact that Koch suddenly cancelled a training he was
supposed to give that same morning and on July 21 emailed two colleagues stating “as of
now I am not working” for SICM because of his refusal to accept a 43 percent pay cut.
SICM could argue that its actions of terminating Koch’s malpractice insurance and IT
access was simply a response to Koch’s express resignation. As a result, there is
evidence from which a jury could conclude that Koch voluntarily resigned his position at
SICM.15
       On the other hand, however, Koch can use the party’s conduct during this same
time frame to support a reasonable inference that SICM terminated him. Contrary to
SICM’s assertion that the pay cut was only “proposed,” Koch testified in his deposition
that Quick said Koch “had to take” the 43 percent pay cut. Additionally, the July 20
email can be reasonably read as Koch expressing his view that the 43 percent pay cut was
unacceptable, that he wanted to negotiate a more equitable deal with Kent, and that he

       15
          In its brief, SICM argues that the alleged threat to cut Koch’s pay did not
constitute an anticipatory repudiation of the Medical Director Agreement. We need not
reach this question as Koch has not brought a breach of contract claim.


                                             34
was informing Kent that he was taking vacation for the rest of July. If the jury reads the
email in this way, it could reasonably conclude that Koch did not resign. This reading of
the July 20 email finds further support in Kent’s late-July and early-August emails to
Koch. Kent expressly acknowledged that Koch was on vacation in late July and
continued to engage Koch in an attempt to reach a deal. Such statements are arguably
inconsistent with a finding that Koch resigned.
       If a jury were to find that Koch did not resign on July 20, it could then reasonably
conclude that SICM terminated him because Quick terminated Koch’s medical
malpractice insurance, shut down his IT access, and informed Koch’s colleagues that
Koch had “resigned” in the immediate aftermath of the July 20 email. Finally, it is
undisputed that SICM did not pay Koch at the beginning of August, as called for under
the Medical Director Agreement. These actions by Quick prevented Koch from
performing his role as medical director and, based on these actions, a jury could conclude
they effectively terminated Koch. To the extent that Koch told two of his colleagues on
July 21 that “as of now I am not working for [SICM],” a jury could read this statement in
light of the fact that Quick had unilaterally terminated Koch’s medical malpractice
insurance the day before.
       At the summary judgment stage, “it is not our job to weigh the evidence, but,
rather, to consider whether the proffered evidence would provide a sufficient basis for a
finding in favor of the nonmoving party.” (Sandell v. Taylor-Listug, Inc. (2010) 188
Cal.App.4th 297, 326, fn. 16.) Koch, as the non-moving party, is entitled to have the
evidence viewed in the light most favorable to his position. (Chavez v. Glock, Inc. (2012)
207 Cal.App.4th 1283, 1302.) Viewing the evidence in this light, a jury could reasonably
conclude based on the evidence that Koch did not resign but rather was terminated by
SICM. As a result, a triable issue exists as to whether Koch was subject to an adverse
employment action for purposes of his wrongful termination claims.
       C.     Causal Link Between Protected Activity and Adverse Action
       The final element of Koch’s prima facie case requires that Koch demonstrate a
causal link between his protected activity and SICM’s decision to terminate him.


                                            35
“ ‘ “The causal link may be established by an inference derived from circumstantial
evidence, ‘such as the employer’s knowledge that the [employee] engaged in protected
activities and the proximity in time between the protected action and allegedly retaliatory
employment decision.’ ” [Citation.]’ [Citation.]” (Morgan v. Regents of University of
California, supra, 88 Cal.App.4th at pp. 69-70.)
       SICM argues that there is insufficient evidence to support an inference of
retaliation, because the temporal proximity between any protected activity and the alleged
termination is too attenuated. It contends that Koch complained about Taghizadeh and
raised his concerns about the corporate practice of medicine no later than April 21,
2010—three months before the alleged wrongful termination. SICM relies on the United
States Supreme Court case of Clark County School District v. Breeden (2001) 532 U.S.
268, where the Court stated in the Title VII context that cases that accept “mere temporal
proximity between an employer’s knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very close.’ ” (Id. at p. 273.) The
court cited federal cases suggesting that a three or four-month period between protected
activity and adverse employment action was insufficient to give rise to an inference of
causality. (Ibid.)
       SICM, however, both ignores applicable California law and fails to read the record
in a light most favorable to Koch. Notwithstanding the Supreme Court’s holding that a
three or four-month gap will generally not support an inference of retaliatory motive in
Title VII cases, Health and Safety Code section 1278.5 expressly provides a “rebuttable
presumption that discriminatory action was taken by the health facility . . . in retaliation
against an employee . . . if responsible staff at the facility . . . had knowledge of the
actions . . . and the discriminatory action occurs within 120 days of the filing of the
grievance or complaint by the employee[.]” (Health & Saf. Code, § 1278.5, subd. (d)(1).)
Because the alleged wrongful termination in this case occurred in July 2010, and SICM
concedes that Koch made complaints in April 2010, the rebuttable presumption of this
section 1278.5 applies.


                                              36
       As to Koch’s other causes of action, Koch stated in his declaration that in June
2010, SICM’s counsel asked him about his concerns that he was being terminated and, in
response, Koch told him about his “continual protests to the company, Quick and Dr.
Kent about both Dr. Taghizadeh and the concerns about California corporate practice of
medicine restrictions.” Taking this statement in the light most favorable to Koch, a jury
could conclude that he engaged in protected activity in June 2010—a mere month before
Koch was allegedly targeted for a substantial pay cut and then terminated. This close
temporal proximity is sufficient to give rise to the inference that Koch’s termination was
causally related to his protected activity. (Cf. Lakeside-Scott v. Multnomah County
(2009) 556 F.3d 797, 813 [“This close temporal proximity [approximately 1 month] was
probably sufficient evidence on its own to support the jury’s conclusion that Brown was
motivated by retaliatory animus when she reported Scott”].)16
IV.    SICM’s Asserted Non-Retaliatory Reason and Koch’s Evidence of Pretext
       SICM contends that even if Koch can establish a causal connection between his
protected activity and an adverse employment action, it has offered a legitimate, non-
retaliatory reason for its actions and Koch has not presented sufficient evidence of
pretext. Specifically, SICM contends that it requested that Koch take a 43 percent pay
cut in reliance on the recommendation contained in the Conway MacKenzie report, and
not out of retaliation for Koch’s various complaints.

       16
           As further evidence of retaliatory intent, Koch points to his declaration where
he stated that Jeff Mosley, SICM’s chief financial officer, told him on July 7 that “Quick
had targeted me for termination” by insisting on the pay cut “under the guise of the
Conway MacKenzie report.” SICM, as was typical of its practice in this motion, objected
to this evidence on multiple grounds: hearsay, lack of foundation, lack of personal
knowledge, speculation, improper opinion, improper legal conclusion. The trial court
sustained some objection to this evidence, although we cannot tell which one or on what
basis. Koch argues that this is “statutorily allowed hearsay as an admission by a
company officer” under Evidence Code Section 1220. Ultimately, we need not resolve
whether an exception to the hearsay rule has been established under Evidence Code
section 1220 (or § 1222, since Mosley was the chief financial officer), because Koch can
make his prima facie case for purposes of defeating summary judgment without this
evidence.


                                            37
       To begin, we note that SICM’s articulated legitimate reason addresses only the 43
percent pay cut SICM sought to impose on Koch. SICM has not argued it they had a
legitimate, non-retaliatory reason for terminating Koch. Rather, as we have discussed,
SICM has consistently taken the position that Koch was not terminated, but resigned. As
a result, SICM’s alleged non-retaliatory reason for imposing the 43 percent pay cut does
not squarely address its reason for terminating Koch were a jury to find it did terminate
him. At the same time, it appears that it was SICM’s attempt to impose a 43 percent pay
cut on Koch that set in motion a series of events that eventually led to Koch’s alleged
termination. Accordingly, we will address whether SICM has sufficiently supported its
purported non-retaliatory reason for imposing this pay cut and whether Koch has
introduced sufficient evidence that this reason is a mere pretext.
       SICM introduced sufficient evidence suggesting a legitimate, non-retaliatory
reason for requesting that Koch take a 43 percent pay cut. SICM introduced a copy of the
Conway MacKenzie report. While the precise financial details of the report are redacted,
the report indicates that SICM had “significant overhead structure and expenses” and that
given a “restrictive lending agreement” SICM had entered in February 2010, it was
“assumed that SICM will be in violation of the shareholder equity covenant as of June 30,
2010,” causing SICM to have to operate on cash receipts. In light of this, Conway
MacKenzie recommended a series of across the board cuts in salary for members of
SICM’s “Senior Business Team.” Both Kent and Quick testified in their depositions
about the “cash crunch” SICM experienced in 2010, and how it required cutting
expenses. Finally, in his emails to Koch regarding the pay cut, Kent emphasized that
SICM had “no money (cash) and we need to cut a ton of costs.”
       The burden thus shifts to Koch to “ ‘offer substantial evidence that the employer’s
stated [nonretaliatory] reason for the adverse action was untrue or pretextual, or evidence
the employer acted with a [retaliatory] animus, or a combination of the two.’ ” (Wills v.
Superior Court (2011) 195 Cal.App.4th 143, 160, quoting Hersant v. Department of
Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) While a close issue, we find
that Koch has introduced sufficient evidence from which a jury could reasonably


                                             38
conclude that SICM’s nonretaliatory justification is pretextual. (See McRae v.
Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 398
[“[P]laintiff must produce substantial evidence from which the jury can find that
defendants’ reasons for their actions are false or pretextual.”])
       First, there is the undisputed fact that SICM sought to reduce Koch’s salary by 43
percent while the Conway MacKenzie report recommended that the other members of the
Senior Business Team have their base salaries reduced by only 5 percent to 15 percent.
Additionally, Steve Higginbotham, SICM’s COO, testified in his deposition that Conway
MacKenzie did not independently arrive at the recommendation to cut Koch’s pay by 43
percent. Rather, he testified that the figure was arrived at in a “side bar conversation that
Dr. Kent, Gordon [Quick] and [Higginbotham] had in general as it relates to medical
director compensation.” Of course, there may be a perfectly legitimate reason for Koch
having his pay cut. Kent in one email to Koch expressly stated as such when he wrote
that the “rest of the [Senior Business Team] makes in the low hundred thousand dollars
and can’t drop 50 percent.” It is up to the jury, however, to determine whether this
reason asserted is credible.
       Second, as detailed above, there is the close proximity between Koch detailing his
complaints to SICM’s counsel and the alleged adverse employment action. SICM is
correct that case law states that “temporal proximity, although sufficient to shift the
burden to the employer to articulate a nondiscriminatory reason for the adverse
employment action, does not, without more, suffice also to satisfy the secondary burden
borne by the employee to show a triable issue of fact on whether the employer’s
articulated reason was untrue and pretextual.” (Loggins, supra, 151 Cal.App.4th at p.
1112.) At the same time, however, “[t]his is not to say that temporal proximity is never
relevant in the final step of the McDonnell Douglas test. In the classic situation where
temporal proximity is a factor, an employee has worked for the same employer for
several years, has a good or excellent performance record, and then, after engaging in
some type of protected activity . . . is suddenly . . . terminated. In those circumstances,
temporal proximity, together with the other evidence, may be sufficient to establish


                                             39
pretext.” (Arteaga v. Brinks, Inc., supra, 163 Cal.App.4th at pp. 353-354.) Here, Koch
worked for SICM for 2 years and apparently performed well enough to have Kent
promote him to medical director. In fact, Kent continually told Koch that he was a
valued member of the SICM team. The arguable temporal proximity between Koch’s
complaints and his alleged termination therefore is properly considered as a non-
dispositive factor that could support a finding of pretext.
       Finally, there is inconsistency in what SICM officials stated at the time regarding
the proposed pay cut and Koch’s departure. As detailed above, Kent told Koch in emails
that the 43 percent pay cut was needed because of SICM’s short-term financial problems.
At the same time, however, both Quick and Higginbotham testified that the
recommendation to cut Koch’s pay so substantially was because of their view that
$300,000 to $400,000 was more in line with what the market paid administrative medical
directors. Then, on July 29, Quick sent an email to SICM personnel to “dispel” a rumor
that the “reason for all the reductions and recent changes was because [SICM is] having
financial problems and [is] going out of business.” He stated that “nothing [was] further
from the truth” and the “company’s financial position has never been stronger.” In this
email, Quick wrote that Koch’s departure was “not at all financially motivated, but rather
motivated by differences regarding the direction of the company. Despite making every
effort to get all members of the management team on the same page, it simply was not
possible. As Abraham Lincoln said, ‘A house divided against itself cannot stand.’ Such
an outcome was not something that the management team was going to allow to happen
to Lifestyle Lift. Thus, the members of the management team that did not share the same
vision have left and we wish them well in their next endeavors.”
       SICM argues, however, that at most this evidence shows “some inconsistency”
and is not sufficient, without more, to establish pretext.17 It relies on McGrory v. Applied


       17
           SICM also argues that Koch has “waived” this inconsistency argument by not
raising it in his opening brief. In his opening brief, however, Koch specifically attacked
the reasoning employed by the trial court in granting summary judgment—that he had not
shown that he was terminated. In supporting the trial court’s grant of summary judgment,

                                             40
Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, where the court found that
plaintiff had not demonstrated that the employer “has offered fundamentally different
justifications for terminating” him. (Id. at p. 1531.) The court stated that “there must be
more than inconsistent justifications for an employee’s termination to support an
inference that the employer’s true motivation was discriminatory.” (Ibid.) It recognized
that while “[p]roof that the employer’s proffered reasons are unworthy of credence may
‘considerably assist’ a circumstantial case of discrimination,” there must still “be
evidence supporting a rational inference that intentional discrimination, on grounds
prohibited by the statute, was the true cause of the employer’s actions.” (Ibid.; see also
Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 360-361 [“Moreover, an inference
of intentional discrimination cannot be drawn solely from evidence, if any, that the
company lied about its reasons. The pertinent statutes do not prohibit lying, they prohibit
discrimination”].)
       Here, however, the discrepancies in SICM’s asserted reasoning are more than
“some inconsistency.” Rather the two justifications offered by SICM—first that the pay
cut was sought for financial reasons and then the assertion that Koch left for reasons that
were “not at all financially motivated, but rather motivated by differences regarding the
direction of the company”—are contradictory. Further, as detailed above, Koch does not
rely solely on SICM’s shifting reasons for its conduct, but has also introduced evidence
that he was targeted with a significantly more severe pay cut and that there is close
temporal proximity between his complaints and alleged termination. Combined, this
evidence is sufficient to have a jury decide whether SICM’s articulated reasons are
pretextual.
V.     Remaining Issues
       Defendants argue that summary judgment was proper as to Koch’s claims against
the various clinic defendants because (1) the undisputed record shows that he was not

SICM in its respondents’ brief raised many of the issues we address here, such as whether
Koch actually engaged in protected conduct and whether he could establish a causal
relationship. Koch was therefore entitled to reply to these arguments.


                                             41
terminated, and (2) even if he was terminated, Koch was unable to articulate a theory of
how he was damaged by that termination. The first argument is readily disposed of in
light of our holding that there is a triable issue of fact as to whether SICM terminated
him. The record establishes that the same decision makers are involved with both SICM
and the clinic defendants, and Koch’s SICM salary also compensated him for any work
done pursuant to his contract with the clinic defendants. During his deposition, Koch was
repeatedly unable to articulate how he was damaged by the clinic defendants separate and
apart from any damage he suffered by SICM. In light of the undisputed fact that Koch
was reimbursed for any work done at the Lifestyle Lift clinics through his SICM salary, it
is unclear how Koch suffered any separate damages by being terminated by the
individual clinics. SICM, however, has failed to cite any case law in support of the
proposition that they are entitled to summary judgment under the facts of this case due to
Koch’s failure to demonstrate damages as to these defendants.
       Further, in his opening brief, Koch argues that there is a triable issue of fact as to
whether he was an employee as opposed to an independent contractor. In its motion for
summary judgment, SICM argued that Koch’s claims failed because he was not an
employee of SICM, but rather an independent contractor. The trial court, however, did
not rule on this issue. Additionally, SICM has failed to respond to Koch’s arguments in
any way, an omission we construe as a concession that a triable issue exists on this point.
       Finally, Koch argues on appeal that the trial court erred in denying his request to
continue the summary judgment hearing to allow him to conduct additional discovery. In
light of our holding that the trial court erred in granting the summary judgment, Koch’s
challenge to the trial court’s order on this point is moot.
                                      DISPOSITION
       Triable issues of fact exist as to each of Koch’s causes of action against
defendants. Accordingly, the trial court erred in granting defendants’ motion for
summary judgment. The judgment is reversed and remanded for further proceedings.
Koch is awarded costs on appeal.



                                              42
                                 _________________________
                                 Miller, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




                            43
