 


Filed 11/26/14 Fowler v. Cedars-Sinai Med. Center CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

ASIA FOWLER,                                                          B254874

                Plaintiff and Appellant,                              (Los Angeles County
                                                                      Super. Ct. No. BC480490)
         v.

CEDARS-SINAI MEDICAL CENTER,

                Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald
M. Sohigian, Judge. Affirmed.


         Louis P. Dell for Plaintiff and Appellant.


         Davis Wright Tremaine, Emilio G. Gonzalez and Elizabeth J. Carroll for
Defendant and Respondent.




 
 


       Plaintiff and appellant Asia Fowler (Fowler) appeals from the judgment entered in
favor of defendant and respondent Cedars-Sinai Medical Center (Cedars) after the trial
court granted Cedars’s motion for summary judgment in this action for violation of Labor
Code section 432.7 (section 432.7), violation of the Investigative Consumer Reporting
Agencies Act (Civ. Code, § 1786 et seq.) (ICRA), and intentional infliction of emotional
distress. We affirm the judgment.
                                     BACKGROUND
Factual background
       Fowler is and has been employed by Cedars as a housekeeper since December
2001. As a housekeeper, Fowler is responsible for cleaning patient rooms and disposing
of trash in many areas of Cedars’s medical center, including the pharmacy, offices, and
restrooms. All of those locations could contain private patient information such as
prescriptions, receipts, invoices, and medical bills.
       On or about October 16, 2009, Fowler was arrested and detained by the federal
government for conspiring to commit felony health care fraud in the case of United States
v. Iruke et al., case No. CR-09-01008-TJH. When Fowler was released, she verbally
informed Cedars of her arrest. On October 29, 2009, Cedars placed Fowler on a paid
administrative leave of absence.
       On November 3, 2009, while awaiting trial, Fowler met with Cedars’s employee
relations manager Diane Erickson, human resources consultant Raul Navarro (Navarro),
and union steward Lynn Bussey to discuss the criminal charges against her. At that
meeting, Fowler confirmed that she had been arrested for medical insurance fraud. She
denied committing Medicare fraud and said she may have been a victim of identity theft.
       On November 5, 2009, Cedars placed Fowler on an unpaid leave of absence. The
decision to place Fowler on unpaid leave was based on the conclusion that because the
charges against Fowler involved medical insurance fraud in billing Medicare for medical
equipment, Fowler should not have access to Cedars’s premises as an employee until she
was exonerated or provided exculpatory information. Navarro communicated Cedars’s



                                              2 
 


decision to Fowler by phone on November 5, 2009, and by letter dated November 13,
2009.
        In reaching its decision to place Fowler on unpaid leave, Cedars reviewed a
Los Angeles Times article dated October 22, 2009, and a press release issued by the U.S.
Department of Justice (DOJ) dated October 21, 2009. The DOJ press release reported
that 20 defendants, including Fowler, had been arrested and indicted for allegedly
participating in Medicare fraud schemes resulting in more than $26 million in fraudulent
bills. The press release identified Fowler as one of the alleged owners of three medical
supply companies using fraudulent prescriptions and documents to submit false claims to
Medicare. The Los Angeles Times article did not name Fowler or any of the other
defendants but described the defendants by their respective ages, gender, and places of
residence, as well as the charges filed against them.
        In January 2010, in response to an internal grievance filed by Fowler, Cedars’s
labor relations personnel met with Fowler and reiterated Cedars’s decision to place her on
unpaid leave until she was exonerated or exculpatory information was provided. During
this meeting, Fowler was given an opportunity to read two news articles documenting her
arrest and indictment.
        After Fowler was placed on unpaid leave, she made a claim for unemployment
benefits. Cedars protested the claim for unemployment benefits on the ground that she
was not unemployed but on a leave of absence. In July 2010, the Employment
Development Department denied Fowler’s application for unemployment benefits.
        After Fowler was indicted, Caryl Winter (Winter), a senior human resources
compliance specialist at Cedars, attended some of the pretrial proceedings and the first
two days of the jury trial in the criminal case against Fowler. None of the hearings
attended by Winter concerned Fowler’s arrest or indictment.
        On August 30, 2011, the United States District Court granted Fowler a judgment
of acquittal. Shortly thereafter, Fowler informed Cedars that the charges against her had
been dismissed. Cedars made an offer to have Fowler return to work following her
acquittal. Fowler did so and is currently employed by Cedars.


                                             3 
 


Procedural background
              Fowler commenced the instant action on March 9, 2012. In the operative third
amended complaint, she alleges causes of action for intentional and negligent violation of
section 432.7, violation of ICRA, and intentional infliction of emotional distress. Cedars
filed a motion for summary judgment, or alternatively, summary adjudication of issues,
as to each of the causes of action asserted in the third amended complaint. The trial court
granted Cedars’s motion in its entirety.1 Judgment was subsequently entered in Cedars’s
favor, and this appeal followed.
                                                                               DISCUSSION
I. Standard of review
              Summary judgment is granted when a moving party establishes the right to entry
of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the
law of summary judgment is to provide courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations, trial is in fact

                                                                                                                                                                                  
1
        This case has a rather involved procedural history not relevant to this appeal but
set forth here for informational purposes. After commencing this action, Fowler filed a
first amended complaint alleging, among other claims, a cause of action for breach of the
implied covenant of good faith and fair dealing. Cedars removed the matter to federal
court on the ground that the implied covenant of good faith and fair dealing claim arose
under section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a)), and filed
a motion for summary judgment. The federal district court granted Cedars summary
adjudication of this claim and remanded the remaining claims to the superior court. In
the superior court, Cedars filed its second motion for summary judgment. Before the
hearing on that motion, the trial court granted Fowler leave to file a second amended
complaint to add a cause of action for violation of the ICRA. On May 9, 2013, the trial
court thereafter granted Cedars’s second motion for summary adjudication as to all
causes of action with the exception of the ICRA claim. Fowler then filed a third
amended complaint and a motion to vacate the summary adjudication order, which the
trial court denied. Fowler filed a petition for writ of mandate, seeking to overturn the
order denying her motion to vacate, and on July 23, 2013, this court issued a “suggested
Palma” notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) In
response to that notice, Cedars stipulated to vacate the trial court’s May 9, 2013 summary
adjudication order, without prejudice as to its ability to file another motion for summary
judgment. The trial court then vacated its May 9, 2013 order, and Cedars filed the
summary judgment motion that is the subject of this appeal.

                                                                                              4 
 


necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843 (Aguilar).)
       A defendant moving for summary judgment bears the initial burden of proving
that there is no merit to a cause of action by showing that one or more elements of the
cause of action cannot be established or that there is a complete defense to that cause of
action. (Code Civ. Proc., § 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104
Cal.App.4th 1031, 1037.) Once the defendant has made such a showing, the burden
shifts to the plaintiff to show that a triable issue of one or more material facts exists as to
that cause of action or as to a defense to the cause of action. (Aguilar, supra, 25 Cal.4th
at p. 849.) If the plaintiff does not make such a showing, summary judgment in favor of
the defendant is appropriate. In order to obtain a summary judgment, “all that the
defendant need do is to show that the plaintiff cannot establish at least one element of the
cause of action . . . . [T]he defendant need not himself conclusively negate any such
element . . . .” (Id. at p. 853.)
       On appeal from a summary judgment, an appellate court makes “an independent
assessment of the correctness of the trial court’s ruling, applying the same legal standard
as the trial court in determining whether there are any genuine issues of material fact or
whether the moving party is entitled to judgment as a matter of law. [Citations.]”
(Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
II. Section 432.7
       A. Applicable law and legal principles
       Section 432.7 governs the access, use, and disclosure of arrest records.
Subdivision (a) of that statute provides in relevant part: “No employer, whether a public
agency or private individual or corporation, shall ask an applicant for employment to
disclose, through any written form or verbally, information concerning an arrest or
detention that did not result in conviction, or information concerning a referral to, and
participation in, any pretrial or posttrial diversion program, or concerning a conviction
that has been judicially dismissed or ordered sealed pursuant to law . . . . [N]or shall any
employer seek from any source whatsoever, or utilize, as a factor in determining any


                                               5 
 


condition of employment including hiring, promotion, termination, or any apprenticeship
training program or any other training program leading to employment, any record of
arrest or detention that did not result in conviction, or any record regarding a referral to,
and participation in, any pretrial or posttrial diversion program, or concerning a
conviction that has been judicially dismissed or ordered sealed pursuant to law . . . . As
used in this section, a conviction shall include a plea, verdict, or finding of guilt
regardless of whether sentence is imposed by the court. Nothing in this section shall
prevent an employer from asking an employee or applicant for employment about an
arrest for which the employee or applicant is out on bail or on his or her own
recognizance pending trial.”
          Fowler contends the DOJ press release, the Los Angeles Times article, and verbal
notification of her arrest constitute “record[s] of arrest or detention” within the meaning
of section 432.7 and that Cedars violated the statute by improperly considering those
items when making the decision to place her on an unpaid leave of absence. Whether the
news article, press release, and verbal notification of Fowler’s arrest are “records of arrest
or detention” within the meaning of section 432.7 is a legal issue that we review de novo.
(Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1491.)
          The fundamental rule of statutory construction is that the court should ascertain
    the intent of the Legislature so as to effectuate the purpose of the law. (Select Base
    Materials v. Board of Equalization (1959) 51 Cal.2d 640, 645 (Select Base).) In
    determining the intent of the Legislature, we first examine the words of the statute itself,
    giving them their usual, ordinary meaning. (California Teachers Assn. v. San Diego
    Community College Dist. (1981) 28 Cal.3d 692, 698; Garcia v. McCutchen (1997) 16
    Cal.4th 469, 476.) If possible, every word and phrase of the statute should be given
    meaning and effect. (Select Base, supra, at p. 645.) In addition, “‘every statute should
    be construed with reference to the whole system of law of which it is a part so that all
    may be harmonized and have effect.’ [Citation.]” (Ibid.) Finally, when the Legislature
    makes express statutory distinctions, we must presume it did so deliberately, and give



                                                 6 
 


    effect to those distinctions, unless the statutory scheme as a whole reveals the distinction
    is unintended. (Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1225.)
              B. Statutory distinction between “information” and “records” and between
    “applicants” and “employees”
              Subdivision (a) of section 432.7 distinguishes between a “record of arrest or
detention” and “information concerning an arrest or detention” as well as the
circumstances in which an employer is prohibited from seeking, requesting, or relying on
such “record” or “information.” An employer violates the statute by asking an applicant
for employment to disclose, either verbally or in writing, “information concerning an
arrest or detention” that did not result in conviction or by seeking or utilizing a “record of
arrest or detention” when making a hiring decision. (§ 432.7, subd. (a), italics added.) In
contrast, an employer violates section 432.7, subdivision (a) with regard to a current
employee only when the employer seeks or utilizes a “record of arrest or detention” as a
factor in determining a condition of employment. (Ibid.) Applicants for employment are
thus accorded broader statutory protection.
              Section 432.7 distinguishes between applicants and employees not only in the
scope of protection afforded, but also with regard to the available remedies. Treble
damages and certain other statutory remedies are available only to applicants, whereas
employees are entitled only to actual damages. (§ 432.7, subd. (c);2 Faria v. San Jacinto
Unified School Dist. (1996) 50 Cal.App.4th 1939, 1947.)
              C. Verbal notification of arrest is “information concerning an arrest”
              Consistent with the broader protection accorded to applicants for employment, the
term “information concerning an arrest or detention,” as used in section 432.7,
                                                                                                                                                                                  
2
       Section 432.7, subdivision (c) states: “In any case where a person violates this
section, or Article 7 (commencing with Section 11140 of Chapter 1 of Title 1 of Part 4 of
the Penal Code, the applicant may bring an action to recover from that person actual
damages or two hundred dollars ($200), whichever is greater, plus costs, and reasonable
attorney’s fees. An intentional violation of this section shall entitle the applicant to treble
damages, or five hundred dollars ($500), whichever is greater, plus costs, and reasonable
attorney’s fees. An intentional violation of this section is a misdemeanor punishable by a
fine not to exceed five hundred dollars ($500).”

                                                                                              7 
 


subdivision (a), has a broader meaning than the term “record of arrest or detention.”
“Information” includes verbal notification of an arrest or detention whereas the term
“record” does not. (§ 432.7, subd. (a) [“No employer . . . shall ask an applicant for
employment to disclose, through any written form or verbally, information concerning an
arrest or detention”], italics added.) Under the plain language of section 432.7,
subdivision (a), Fowler’s verbal notification of her arrest is “information concerning an
arrest or detention” and not a “record of arrest or detention.” The statutory proscription
against inquiry regarding “information concerning an arrest or detention” applies only to
an “applicant for employment,” and not a current employee such as Fowler. Fowler’s
voluntary disclosure of her arrest, absent any inquiry by Cedars, is another reason why
the statutory proscription does not apply.
       D. The news article and press release are not “records” of arrest
       The statutory prohibition against seeking or utilizing “any record of arrest or
detention” does not apply to the Los Angeles Times article and the DOJ press release
discussing Fowler’s arrest. Those items, like Fowler’s verbal notification, constitute
“information” concerning her arrest, and not a “record” of the arrest.
              1. Penal Code definitions concerning arrest records
       Section 432.7 does not define the term “record of arrest or detention.” That same
term is used, however, in provisions of the Penal Code, where one would expect to find
references to arrest records. (See, e.g., Pen. Code, §§ 851.7, 851.85, 851.86, 851.90
[concerning the sealing of criminal records “including any records of arrest and
detention” by minors and by persons acquitted of a criminal charge].) These Penal Code
provisions make clear that a “record” of arrest or detention means “official” documents
and information maintained by law enforcement agencies.
       Penal Code section 1203.45, subdivision (a) for example, allows certain juvenile
offenders to petition the court for an order “sealing the record of conviction and other
official records in the case, including records of arrests resulting in the criminal
proceeding and records relating to other offenses charged in the accusatory pleading.”
(Italics added.) Penal Code section 13301, subdivision (a), defines the term “record” as


                                              8 
 


“the master local summary criminal history information as defined in subdivision (a) of
Section 13300.” “Local summary criminal history information” is defined in Penal Code
section 13300 as “the master record of information compiled by any local criminal justice
agency pursuant to Chapter 2 (commencing with Section 13100) of Title 3 of Part 4
pertaining to the identification and criminal history of any person, such as name, date of
birth, physical description, dates of arrests, arresting agencies and booking numbers,
charges, dispositions, and similar data about the person.” (Pen. Code, § 13300, subd.
(a)(1).)
       Penal Code section 13102 defines “criminal offender record information” as
“records and data compiled by criminal justice agencies for purposes of identifying
criminal offenders and of maintaining as to each such offender a summary of arrests,
pretrial proceedings, the nature and disposition of criminal charges, sentencing,
incarceration, rehabilitation, and release. Such information shall be restricted to that
which is recorded as the result of an arrest, detention, or other initiation of criminal
proceedings or of any consequent proceedings related thereto.”
       Penal Code section 11105, subdivision (a)(1)(A) defines “State summary criminal
information” as “the master record of information compiled by the Attorney General
pertaining to the identification and criminal history of any person, such as name, date of
birth, physical description, fingerprints, photographs, dates of arrests, arresting agencies
and booking numbers, charges, dispositions, and similar data about the person.” (Italics
added.) Subdivision (b) of section 11105, which governs the furnishing of criminal
records to agencies and officers of the state, expressly refers to the limitations imposed
by Labor Code section 432.7.
       That the term “record of arrest or detention” as used in section 432.7 refers to a
specific category of information maintained by law enforcement agencies was recognized
by the court in Central Valley Chap. of 7th Step Foundation v. Younger (1979) 95
Cal.App.3d 212 (Central Valley). In that case, the plaintiffs alleged that prospective
employers had obtained their “arrest records” from the California Department of Justice,
and that based on these records, which listed arrests not resulting in convictions, they


                                              9 
 


were not hired, in violation of section 432.7. The court in Central Valley discussed each
plaintiff’s “arrest record” for purposes of the section 432.7 claim as the “State summary
criminal history information” as defined in Penal Code section 11105. (Central Valley, at
p. 220, fn. 2.)
       The Los Angeles Times article and the DOJ press release reviewed by Cedars do
not come within any statutory definition of a “record” pertaining to arrest or detention.
They are not official records and data compiled and maintained by law enforcement
agencies for the purpose of indentifying criminal offenders. The Los Angeles Times
article and the DOJ press release do not constitute “record[s] of arrest or detention”
within the meaning of section 432.7.
                  2. Fowler’s interpretation is legally unsupported
       Fowler claims that “record of arrest or detention” and “information concerning an
arrest or detention” as used in section 432.7 should have the same meaning. Her
interpretation would require us to insert the words “information concerning” before the
words “record of arrest or detention,” in violation of the “‘“cardinal rule of statutory
construction that . . . a court must not ‘insert what has been omitted’ from a statute.”
[Citation.]’ [Citation.]” (Boy Scouts of America National Foundation v. Superior Court
(2012) 206 Cal.App.4th 428, 446.) “When one part of a statute contains a term or
provision, the omission of that term or provision from another part of the statute indicates
the Legislature intended to convey a different meaning. [Citation.]” (Cornette v.
Department of Transportation (2001) 26 Cal.4th 63, 73.) In enacting section 432.7, the
Legislature distinguished between “information” concerning an arrest or detention and a
“record” of arrest or detention. Conflating the two terms would ignore this distinction
and would rewrite the statute in a manner not intended by the Legislature.
       Fowler contends the language in section 432.7 prohibiting an employer from
seeking “from any source whatsoever . . . any record of arrest or detention that did not
result in conviction” means that self-disclosure, press releases, and news articles qualify
as “record[s] of arrest or detention.” (Italics added.) The plain language of the statute
does not support this interpretation. The pertinent language states that for purposes of the


                                              10 
 


statutory prohibition against seeking or utilizing a “record of arrest or detention,” the
source of the arrest record is immaterial. The statute simply makes clear that an
employer who obtains an employee’s arrest record violates the statute, regardless of the
source or means used by the employer to obtain such records.
              There is no case that holds that “record of arrest or detention” includes self-
disclosure, a press release, or a newspaper article. Starbucks Corp. v. Superior Court
(2011) 194 Cal.App.4th 820, 827-828, on which Fowler relies, involved a precertification
discovery dispute in an attempted class action on behalf of job applicants whom
Starbucks allegedly failed to advise not to disclose minor marijuana convictions more
than two years old. (Id. at p. 822.) It did not concern the rights of current employees
under section 432.7, nor did it construe the terms “record of arrest or detention” under
that statute.
              E. Fowler raises no issue of material fact
              Fowler’s claim that Cedars obtained from the DOJ, in addition to the DOJ press
release, other records of her arrest or detention which were the basis for the decision to
place her on unpaid leave is unsupported by her proffered evidence. The deposition
testimony of Navarro cited by Fowler states that Cedars relied on information obtained
from the DOJ in making the decision to place Fowler on unpaid leave, but that Navarro
could not recall what that information consisted of or who obtained it. Navarro’s
testimony raises no issue of material fact as to whether Cedars obtained any “record of
arrest or detention” from the DOJ.
              F. Summary adjudication of the section 432.7 claim was proper
              Cedars did not violate section 432.7 because it did not seek or utilize any “record
of arrest or detention” in determining any condition of Fowler’s employment.3 The trial

                                                                                                                                                                                  
3
        In view of our holding, we do not address Cedars’s arguments that it produced
substantial evidence of a good faith basis for suspending Fowler while criminal charges
against her were pending, that Fowler failed to exhaust her administrative remedies, or
that an employer may utilize information concerning a current employee’s arrest as a
factor in determining a current employee’s condition of employment, so long as the arrest
is not the sole factor in making such determination.

                                                                                             11 
 


court did not err by summarily adjudicating Fowler’s claims for negligent and intentional
violation of section 432.7.
III. ICRA
       Fowler contends the trial court erred by summarily adjudicating her cause of
action for violation of Civil Code section 1786.53 of the ICRA. That statute provides, in
relevant part: “Any person who collects, assembles, evaluates, compiles, reports,
transmits, transfers, or communicates information on a consumer’s character, general
reputation, personnel characteristics, or mode of living, for employment purposes, which
are matters of public record, and does not use the services of an investigative consumer
reporting agency, shall provide that information to the consumer pursuant to subdivision
(b).” (§ 1786.53, subd. (a).) The statute defines “public records” as “records
documenting an arrest, indictment, conviction, civil judicial action, tax lien, or
outstanding judgment.” (Civ. Code, § 1786.53, subd. (a)(3).) A two-year statute of
limitations applies, which runs from the date of discovery of the conduct constituting the
alleged violation. (Civ. Code, § 1786.52.)
       The purpose of the ICRA is to protect consumers who are victims of identity theft
from harm, including adverse employment action, based on information attributable to
identity theft or that is otherwise erroneous. (Civ. Code, § 1786.) The statute was
enacted because “[t]he crime of identity theft in this new computer era has exploded to
become the fastest growing white collar crime in America” and because “[t]he unique
nature of this crime means it can often go undetected for years without the victim being
aware his identity has been misused.” (Civ. Code, § 1786, subds. (c), (d).)
       Fowler cites the following actions by Cedars that allegedly triggered disclosure
obligations under Civil Code section 1786.53: (1) obtaining and reviewing the DOJ press
release and Los Angeles Times article describing her arrest and pending criminal charges;
(2) attending in July 2011 pretrial criminal hearings and the first two days of the trial in
her criminal case, during which Cedars employees took notes of their observations; (3)
downloading a DOJ press release that discussed Fowler’s exoneration; and (4) viewing



                                              12 
 


and downloading Fowler’s “executive profile” from a website linking Fowler to one of
the business entities involved in the criminal case.
       The trial court properly concluded that there was no evidence that Cedars engaged
in any actionable conduct under the ICRA within the two-year statutory period. With
regard to the DOJ press release, the evidence showed that Fowler learned in November
2009, more than two years before she commenced the instant action, that Cedars had
obtained and reviewed information from the Department of Justice. There was also
undisputed evidence that Fowler was shown and given the opportunity to read two news
articles discussing her arrest and indictment in January 2010, more than two years before
she commenced this action. Fowler’s claims with regard to the DOJ press release and the
Los Angeles Times article are accordingly time-barred. (Civ. Code, § 1786.52.)
       Fowler’s allegation that Cedars’s representatives attended certain hearings in her
criminal case falls outside the scope of the ICRA. None of the hearings concerned
Fowler’s arrest or indictment for Medicare fraud and thus were not “matters of public
record” within the meaning of Civil Code section 1786.53. (Civ. Code, § 1786.53, subd.
(a)(3).)
       For the same reason, Fowler’s allegation that Cedars printed her “Corporation
Wiki” executive profile fails to establish an actionable claim under the ICRA. The
executive profile identifies Fowler as the president of Ladera Medical Supply, Inc. It
does not mention the criminal matter, nor any other “matter of public record” as defined
in Civil Code section 1786.53.
       The trial court did not err by summarily adjudicating Fowler’s ICRA claim.
IV. Intentional infliction of emotional distress
       To successfully resist a motion for summary judgment on a claim for intentional
infliction of emotional distress, a plaintiff must provide evidence of “conduct beyond the
bounds of human decency.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th
55, 80 (Janken).) Summary adjudication of Fowler’s claim for intentional infliction of
emotional distress was proper because Fowler failed to introduce any evidence of



                                             13 
 


“extreme and outrageous” conduct by Cedars. (Hughes v. Pair (2009) 46 Cal.4th 1035,
1050.)
         Cedars’s decision to place Fowler on unpaid leave in November of 2009 and
informing the Employment Development Department that she was on a leave of absence
in response to a claim for unemployment benefits in the summer of 2001 were personnel
management actions that do not support a claim for intentional infliction of emotional
distress. “Managing personnel is not outrageous conduct beyond the bounds of human
decency, but rather conduct essential to the welfare and prosperity of society. A simple
pleading of personnel management activity is insufficient to support a claim of
intentional infliction of emotional distress.” (Janken, supra, 46 Cal.App.4th at p. 80.)
The trial court did not err by summarily adjudicating Fowler’s claim for intentional
infliction of emotional distress in favor of Cedars.
V. Punitive damages
         Fowler contends the trial court erred by summarily adjudicating her claim for
punitive damages, which she sought for each of her causes of action. Punitive damages
may be awarded only as a remedy for conduct alleged in a particular cause of action.
(McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1163.)
Because Cedars established that Fowler cannot recover on any of the causes of action
asserted in the third amended complaint, punitive damages are unavailable to her. The
trial court did not err by summarily adjudicating Fowler’s claim for punitive damages.
VI. Continuance
         Code of Civil Procedure section 437c, subdivision (h) mandates a continuance of a
summary judgment hearing upon a good faith showing by affidavit that additional time is
needed to obtain facts essential to justify opposition to the motion. (Yuzon v. Collins
(2004) 116 Cal.App.4th 149, 167.) The statute provides: “If it appears from the
affidavits submitted in opposition to a motion for summary judgment or summary
adjudication or both that facts essential to justify opposition may exist but cannot, for
reasons stated, then be presented, the court shall deny the motion, or order a continuance
to permit affidavits to be obtained or discovery to be had or may make any other order as


                                             14 
 


may be just.” (Code Civ. Proc., § 437c, subd. (h).) The denial of a continuance under
section 437c, subdivision (h) is reviewed under the abuse of discretion standard. (Ace
American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.)
       Fowler contends the trial court erred by denying her request for continuance of the
summary judgment motion under Code of Civil Procedure section 437c, subdivision (h).
She claims a continuance was necessary because she needed to obtain two items of
evidence: the handwritten notes of Navarro, and notes taken by Winter while she
attended certain pretrial hearings and trial dates in Fowler’s criminal case.
       The record here discloses no abuse of discretion by the trial court. The Navarro
notes sought by Fowler were produced to her in November 2013, before Cedars filed the
summary judgment motion that is the subject of this appeal. Winter’s notes were the
subject of a previous unsuccessful motion by Fowler to compel their production. The
trial court denied Fowler’s motion to compel production of Winter’s notes at a hearing
held on November 20, 2013. Fowler did not appeal from the order denying her motion to
compel and accordingly forfeited the right to challenge the trial court’s ruling in this
appeal. As Fowler failed to make the necessary showing for a continuance under Code of
Civil Procedure section 437c, subdivision (h), the denial of her request for a continuance
was not an abuse of discretion.
                                      DISPOSITION
       The judgment is affirmed. Cedars is awarded its costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                   ____________________________, J.
                                                   CHAVEZ

We concur:

__________________________, P. J.
BOREN


__________________________, J.
HOFFSTADT


                                             15 
