Filed 4/30/13 Walker v. City of Los Angeles CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR




LARRY WALKER,                                                        B236376
                                                                     (Los Angeles County
                Plaintiff and Appellant,                             Super. Ct. No. BC412860)

v.

CITY OF LOS ANGELES,

              Defendant and Respondent.


         APPEAL from a judgment and order of the Superior Court of Los Angeles,
Ruth Ann Kwan, Judge. Affirmed.
         Law Offices of Leo James Terrell and Leo James Terrell for Plaintiff and
Appellant.
         Vanderford & Ruiz, Rodolfo F. Ruiz and Nathan V. Okelberry for
Defendant and Respondent.
       Appellant Larry Walker appeals the trial court‟s grant of summary judgment
in favor of respondent City of Los Angeles (the City) on his claim for invasion of
privacy. Appellant contends the court abused its discretion in denying his request
for continuance of the summary judgment motion, that the court‟s award of
attorney fees to the City based on the finding that he lacked reasonable cause to
assert his claim was unsupported, and that the fees awarded were unreasonable.
We affirm.


               FACTUAL AND PROCEDURAL BACKGROUND
       A. Original Complaint
       In April 2009, Walker, acting in propria persona, filed a complaint against
the City asserting a number of claims, including one for invasion of privacy. 1
Walker had been employed by the City as an Airport Police Officer since March
1988. The complaint alleged, among other things, that his privacy had been
invaded when “[d]efendants” told “the entire roll call” that Walker had suffered a
stroke.2


       B. Proceedings in Federal Court
       The City removed the matter to federal court. After the removal, Walker
filed three amended complaints to add new causes of action, including a claim
under the equal protection clause and claims under the Fair Employment and
Housing Act (Gov. Code, § 12940 et seq.; FEHA) for disability discrimination,
failure to accommodate and failure to engage in the interactive process. In April

1
        Other claims asserted were for breach of contract, wrongful discharge, intentional
infliction of emotional distress, violation of leave rights, and “denial of promotion.”
2
       Although the complaint did not specifically so state, it is undisputed that Walker
suffered a stroke in March 2007 and had been off work since May 2007.

                                             2
2010, attorney Leo Terrell substituted in as counsel for Walker.3 The district court
subsequently dismissed four of appellant‟s causes of action and the parties
stipulated to dismissal of one cause of action, leaving only the claims for breach of
contract and invasion of privacy.4
       The City moved for summary judgment in November 2010. By order dated
December 9, 2010, the district court granted summary adjudication with respect to
the breach of contract claim, finding Walker had failed to exhaust the grievance
procedures of the parties‟ collective bargaining agreement. Walker had not filed
an opposition to the motion but had instead filed a request for continuance under
Federal Rule of Civil Procedure 56(f). The court denied the request, finding
Walker had failed to identify any facts bearing on the breach of contract claim that
further discovery would reveal. The court remanded appellant‟s invasion of
privacy claim to state court, explaining that it had not “invested time familiarizing
itself with [Walker‟s] remaining invasion of privacy claim and the supporting
facts.”

3
       In December 2010, Walker filed a separate lawsuit in state court for disability
discrimination and retaliation in violation of FEHA, essentially contending that for a
period following the initiation of the original lawsuit, the City refused to reinstate him,
although his doctors approved his return to work. Prior to filing the December 2010
complaint, Walker had sought and been denied permission from the district court to add
those claims to the original action then pending in federal court. Walker subsequently
voluntarily dismissed the second suit.
4
       In denying the City‟s motion to dismiss the invasion of privacy claim, the court
stated: “The Court‟s research reveals no California case law holding that a supervisor‟s
dissemination of an employee‟s medical condition to his coworkers is a violation of a
legally protected privacy interest. However, „since enactment of the privacy provision,
the California Supreme Court has held that it protects one from the improper use of
information which has been properly obtained,‟ and that „the right to control circulation
of personal information is fundamental.‟ [Citations.] Furthermore, the „zones of privacy‟
created by the California Constitution extend to the details of one‟s medical history.
[Citation.] The Court therefore finds that Walker‟s allegations sufficiently implicate a
legally protected privacy interest.”

                                             3
       C. Original State Court Motion for Summary Judgment
       Within days of remand, the City moved for summary judgment on the sole
remaining claim for invasion of privacy, raising the same arguments made in its
motion for summary judgment before the district court. The City established that
although Walker had stated in responses to interrogatories that he had heard from
fellow employee Jesse Pharr that Sergeant Harold Evans -- who supervised
Walker‟s unit -- had “„disclosed to the entire “roll call” that [Walker] had a
stroke,‟” Walker subsequently admitted at his deposition that he did not know who
allegedly disclosed this information to Pharr, and that Pharr had not told him it was
Sergeant Evans.5
       In further support of the motion, the City submitted the declarations of
Sergeant Evans and Pharr, which had previously been submitted in support of the
motion for summary judgment filed in federal court. In his declaration, Sergeant
Evans denied knowing that Walker had suffered a stroke or had any other specific
medical condition. He further denied disclosing that appellant suffered from a
medical condition of any kind to anyone except his commanding officer,
Lieutenant Carolyn Smith, whom he was obliged to notify because Walker was
taking time off work. Pharr denied hearing from Sergeant Evans or any other
supervisor that Walker had suffered a stroke, denied being present at any roll call
during which any supervisor had said that Walker had suffered a stroke, and



5
        Walker testified in his deposition that Pharr had mentioned hearing about the
stroke at a roll call, but did not say who provided the information. Walker specifically
testified that the response to the interrogatory was an error and that “Harold Evans didn‟t
say it.” Walker also testified that when he suffered the stroke, which occurred when he
was at work, he experienced visible symptoms -- including the inability to speak
coherently -- in front of three co-workers. Thereafter, he returned to work for a brief
period, but continued to have difficulty speaking. Walker further testified he had told
another employee -- Officer McFraser -- about the side effects of the stroke.

                                             4
specifically denied telling Walker that information about his stroke had been
disclosed during a roll call.
       On January 3, 2011, Walker‟s counsel Terrell filed an ex parte application to
vacate the March 9 hearing date for the motion for summary judgment, claiming
that he had been unable to secure the depositions of essential witnesses. The court
vacated the hearing date and reserved the date of July 8, 2011 for the hearing on
the City‟s summary judgment motion.6


       D. Renewed Motion for Summary Judgment
       In April 2011, the City resubmitted its summary judgment motion, noticing
the reserved hearing date of July 8, 2011. The motion and supporting papers were
identical to those filed in December 2010, including the declarations of Sergeant
Evans and Pharr which had first been submitted in connection with the federal
motion.
       After receiving the renewed motion, Walker noticed the depositions of
Sergeant Evans, Pharr, and Lieutenant Smith. Walker also served notices of
deposition of the persons most knowledgeable (PMKs) with regard to the
Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.; ADA), the
Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191
(August 21, 1996) 110 Stat. 1936; HIPAA), and the Department of Fair
Employment and Housing (DFEH) rules re disability. The latter depositions were
scheduled for June 2. Contending that the categories were overbroad and
irrelevant to the pending invasion of privacy claim, the City sought a protective

6
       After the district court granted summary adjudication and remanded the invasion
of privacy claim to state court, attorney Terrell withdrew notices of deposition for five
witnesses scheduled for December 2010. He waited nearly six months to reschedule
them, despite knowing of the City‟s summary judgment motion and of the July 8, 2011
hearing date.

                                             5
order. Walker moved to compel, contending the notices were sufficiently specific
and that the depositions should go forward.
      On May 31, 2011, Terrell commenced the deposition of Sergeant Evans.
Terrell unilaterally terminated the deposition, however, contending counsel for the
City was using improper speaking objections to coach the witness and disrupt his
answers. Terrell then refused to go forward with the depositions of Pharr and
Lieutenant Smith, scheduled for the same day, despite the fact that Pharr was
present and Lieutenant Smith was en route.7
      On June 20, 2011, Walker applied ex parte to continue the motion for
summary judgment, contending the City‟s counsel had engaged in dilatory tactics,
disrupted witness depositions, and prevented Walker from obtaining necessary
discovery. In his application, Walker also sought to advance the hearing on the
City‟s motion for a protective order and his motions to compel. The court denied
the application.
      On June 24, 2011, Walker filed an “opposition” to the summary judgment
motion, consisting of a three-page memorandum of points and authorities and a
declaration from Terrell in which he contended that he needed additional time to
complete discovery to properly respond to the motion. To support this contention,
Terrell pointed to the ongoing disputes over the persons most knowledgeable
depositions and over defense counsel‟s alleged “unprofessional conduct and
dilatory tactics” at Sergeant Evans‟s deposition. Terrell asserted, without
elaboration, that the persons most knowledgeable depositions were essential to
opposing the summary judgment motion because they were “likely to present


7
        Terrell subsequently moved to compel the depositions of all three of the deponents
whose depositions he had unilaterally cancelled, as well as those of the PMKs. He
identified no question Sergeant Evans or any witness had refused to answer, and noticed
the hearing on his motion for a date after the summary judgment motion was to be heard.

                                            6
controverting evidence to show a triable issue of material fact exists.” He further
stated that he intended at the depositions of Sergeant Evans, Pharr and Lieutenant
Smith “to challenge their credibility by impeaching [their] declarations.” Terrell‟s
declaration provided no explanation for his failure to notice these depositions
earlier.
       Walker filed no counterstatement of facts and submitted no evidence with
the opposition. Terrell addressed the substance of the claim in a few sentences of
his own declaration, stating: (1) “Harold Evans admitted that he had never heard
of HIPAA and did not know what it was. Thus, when Harold Evans disclosed
[Walker‟s] medical condition, [Sergeant] Evans did so without knowing
[Walker‟s] privacy rights under HIPAA”; and (2) “[The City‟s] summary judgment
motion argues that Harold Evans‟ disclosure of [Walker‟s] medical condition was
necessary and thus not unlawful. However, Harold Evans also admitted in his
deposition testimony that [Walker] was not working at the time [Sergeant] Evans
. . . disclosed the stroke to third parties. Any argument for necessity is thus
without merit, as there existed no immediate urgency or threat that [Walker‟s]
medical condition would affect [Walker‟s] ability to perform his duties, because
[Walker] was not currently working.”8
       The court granted the motion for summary judgment. In a detailed written
order, the court stated that with respect to the motion to continue, Walker had not
established that facts essential to opposing the motion existed. He had, instead,
offered “speculative and conclusory” statements about what additional discovery
would reveal. The court explained: “[Attorney Terrell] failed to provide the Court


8
       No deposition transcripts were attached. The City objected to the statements of
counsel with respect to Sergeant Evans‟s testimony as inadmissible hearsay and as a
mischaracterization of the testimony. The court sustained the objections to Terrell‟s
declaration, and Walker does not challenge that ruling on appeal.

                                            7
with information to establish what evidence he expects to obtain from the
depositions and/or why the information sought is essential to opposing the motion
for summary judgment/adjudication,” merely stating in his declaration that the
noticed depositions were “„likely to present controverting evidence to show a
triable issue of material fact‟” and that he hoped to challenge the credibility of the
witnesses. The court also found a lack of diligence, pointing out that the City had
originally filed and served its motion for summary judgment in December 2010,
and that the court had provided Walker with additional time to conduct discovery
when it granted his ex parte application in January 2011.
      With respect to the merits, the court pointed to the evidence establishing that
Walker had suffered the stroke while at work and had been observed by multiple
fellow employees having difficulty speaking that day and on the days that
followed. In addition, the evidence established that Walker had discussed the
effects of the stroke with a fellow employee. Based on this evidence, the evidence
that Sergeant Evans denied telling anyone except his commanding officer,
Lieutenant Smith, that Walker had suffered from a medical condition, and the
evidence that Pharr had not heard any supervisor state that Walker suffered a
stroke or other medical condition, the court found the City had met its burden of
showing that Walker‟s invasion of privacy cause of action had no merit.


      E. City’s Request for Attorney Fees
      After the court granted summary judgment, the City moved for an award of
attorney fees and costs in the amount of $46,281. The City contended it was
entitled to attorney fees and costs under section 1038 of the Code of Civil
Procedure, which permits recovery of attorney fees by the defendant public entity
in an action brought under the California Tort Claims Act, if the trial court
determines that the action was not brought “in good faith and with reasonable
                                           8
cause.” The City contended Walker‟s claim for invasion of privacy lacked
reasonable cause because (1) there was no admissible evidence of public disclosure
of Walker‟s medical condition; (2) an oral disclosure could not form the basis for
an actionable invasion of privacy; and (3) disclosure during a roll call did not
constitute a public disclosure.
      The court awarded attorney fees in the amount of $15,000. In its written
order, the court explained: “[Walker] maintained the invasion of privacy claim
against [the City] without reasonable cause and/or without a good faith belief there
was a justifiable controversy under the facts and law which warranted the filing of
the complaint because there was no admissible evidence of disclosure. [Citation.]
In response to discovery, [Walker] contend[ed] he „was informed by [Pharr] that
[Pharr] heard [Evans] disclose[] to the entire „roll call‟ that [Walker] had a stroke,
a fact not already known to [Walker‟s] co-workers‟ and Evans . . . disclosed
[Walker‟s] stroke to Caroline Harris [sic]. [Citation.] However, [the City‟s]
motion for summary judgment contained overwhelming evidence showing Officer
Pharr never heard Evans state during roll call that [Walker] had a stroke or other
medical condition, Officer Pharr never informed [Walker] he was present at a roll
call during which Evans stated [Walker] had a stroke or medical condition, Evans
did not state in roll call that [Walker] had a stroke or other medical condition, and
Evans only informed Carolyn Smith about the information provided by [Walker]
because he was required to do so for administrative purposes. [Citation.]” (Fn.
omitted.)
      With respect to the amount of the award, the court concluded that the City‟s
request was “excessive” because it included attorney fees incurred in the district
court proceedings and because “some of the entries on the billing statement are
high and unnecessary.” The court found that $15,000 was “reasonable under the


                                           9
circumstances.” Walker appealed the judgment and the order granting attorney
fees.


                                    DISCUSSION
        A. Denial of Request for Continuance
              1. Standard of Review
        Subdivision (h) of Code of Civil Procedure section 437c (section 437c)
provides that if it appears “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 may be just.” The party seeking a continuance
“„“must show: (1) the facts to be obtained are essential to opposing the motion; (2)
there is reason to believe such facts may exist; and (3) the reasons why additional
time is needed to obtain these facts. [Citations.]” [Citation.]‟” (Desaigoudar v.
Meyercord (2003) 108 Cal.App.4th 173, 190, quoting Frazee v. Seely (2002) 95
Cal.App.4th 627, 633.) While many appellate courts apply an abuse of discretion
standard to the review of a trial court‟s determination under subdivision (h) of
section 437c (see, e.g., ibid.; Combs v. Skyriver Communications, Inc. (2008) 159
Cal.App.4th 1242, 1270; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100), some
courts have suggested that because 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” we
should apply a stricter standard in determining whether the submitted affidavit
made the requisite showing. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246,
253-254 (Cooksey); accord, Park v. First American Title Co. (2011) 201
Cal.App.4th 1418, 1428; see Yuzon v. Collins (2004) 116 Cal.App.4th 149, 167;
Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34.) We need not
                                          10
resolve whether a stricter standard applies to any aspect of our review because we
would uphold the trial court‟s ruling whichever standard applies.


             2. Adequacy of Terrell’s Declaration
      To support the continuance of an opponent‟s motion for summary judgment,
the moving party‟s affidavits must do more than parrot the language of the statute.
“[S]ection 437c, subdivision (h) requires more than a simple recital that „facts
essential to justify opposition may exist.‟ The affidavit or declaration in support of
the continuance request must detail the specific facts that would show the existence
of controverting evidence.” (Lerma v. County of Orange (2004) 120 Cal.App.4th
709, 715.) Otherwise, the statute could be “employed as a device to get an
automatic continuance by every unprepared party who simply files a declaration
stating that unspecified essential facts may exist.” (Id. at pp. 715-716; accord,
Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532
[attorney‟s assertion that “„discovery is reasonably necessary to determine who, if
not the presently named individual, is responsible‟ for the negligent failure to
design, fit, maintain, and inspect the door latch” inadequate to support
continuance]; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548 [declaration stating
that two depositions were incomplete and that plaintiff had not yet obtained expert
opinion did not establish that facts might exist to support opposition to summary
judgment].) Moreover, the declaration must explain how the facts expected to be
uncovered in the discovery process are related to the issues raised by the motion
and necessary to the opposition. (Cooksey, supra, 123 Cal.App.4th at p. 255;
Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 263.)
      In his declaration, Terrell made the conclusory assertion that the depositions
of persons most knowledgeable concerning the ADA, the HIPAA, and DFEH rules
re disability were “essential to opposing [the City‟s] summary judgment motion
                                          11
because they are likely to present controverting evidence to show a triable issue of
material fact exists.”9 With respect to Sergeant Evans, Pharr and Lieutenant Smith,
Terrell‟s declaration said nothing about the information to be obtained from these
individuals, but merely that he wished to attack their credibility.10 In moving for
summary judgment, the City established that Sergeant Evans, the sole person
Walker suspected of broadcasting private information during a roll call, had not
done so, and that Pharr had not heard about the stroke from any supervisor for
whose actions the City was potentially responsible. Terrell‟s declaration did not
suggest how deposing persons knowledgeable about certain laws would be relevant
to the invasion of privacy claim or necessary to the opposition. Nor did Terrell
provide any detail with respect to what controverting evidence the questioning of
Pharr and Lieutenant Smith or the additional questioning of Sergeant Evans would
likely uncover. Accordingly, the declaration was inadequate to support the
requested continuance, as the trial court found.


              3. Lack of Diligence
       Although the trial court‟s denial of the request for continuance was fully
justified by the inadequacy of counsel‟s supporting declaration, its determination
9
       Walker does no better on appeal, contending only that the depositions “would
potentially controvert evidence presented by [the City] to refute the first element of
invasion of privacy[:] engaging in conduct that invaded plaintiff‟s privacy interests.”
10
       In his opening brief, Walker discusses in detail the conduct of counsel which he
maintains justified terminating Sergeant Evans‟s deposition prematurely and cancelling
the depositions of Pharr and Lieutenant Smith, but says nothing about what he believed
these deponents might have revealed. In his reply brief, Walker discusses subjects of
inquiry that might have come up at these depositions, essentially inviting us to speculate
how the witnesses would have responded to inquiries never made. Such speculation fails
to establish that the witnesses were likely to reveal relevant controverting evidence.
Moreover, as the trial court noted, Terrell failed to file a “Motion to Compel Deposition
Answers” after unilaterally terminating Sergeant Evans‟s deposition and declining to take
the depositions of Pharr and Lieutenant Smith.

                                            12
that counsel‟s lack of diligence constituted further ground to deny the request is
also supported by the record and provides an alternate basis for affirmance.
       “Where a lack of diligence results in a party‟s having insufficient
information to know if facts essential to justify opposition may exist, . . . the trial
judge may deny the request for continuance of the motion.” (Desaigoudar v.
Mercord, supra, 108 Cal.App.4th at p. 190.) “A good faith showing that further
discovery is needed to oppose summary judgment requires some justification for
why such discovery could not have been completed sooner.” (Cooksey, supra, 123
Cal.App.4th at p. 257.)11 An attorney‟s decision to delay discovery for “tactical
reasons” is not an adequate justification. (Ibid.; see Tilley v. CZ Master Assn.
(2005) 131 Cal.App.4th 464, 490-491 [trial court did not abuse discretion in
denying second continuance when record made clear party was manipulating
circumstances to delay summary judgment for as long as possible].)
       The record in this case establishes an utter lack of diligence on Walker‟s part
and a desire to delay as a strategic device. The invasion of privacy claim was
included in the original complaint filed in April 2009. The City filed for summary
judgment in November 2010. The declarations of Sergeant Evans and Pharr made
clear the City‟s position with respect to the invasion of privacy claim: Sergeant

11
        As the parties discuss in their briefs, the Fourth District has questioned whether
lack of diligence alone “should make or break a continuance request under . . . section
437c, subdivision (h).” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398; see
Frazee v. Seely, supra, at p. 635 [“As we noted in Bahl v. Bank of America, the statute
makes no mention of a need to show diligence, „which raises obvious doubts about its
relevance.‟”].) The statements in both cases represented dicta, as the courts found that
both moving parties had been reasonably diligent. (See Bahl v. Bank of America, supra,
at p. 397; Frazee v. Seely, supra, at p. 635.) In any event, we agree with the analysis of
Division Five of this District in Cooksey, that the statutory requirement of a declaration
setting forth “reasons” why “„facts essential to justify opposition . . . cannot . . . then be
presented‟” necessarily signals that the reasons given must be valid and that “[a]n
inappropriate delay in seeking to obtain the facts” is not such a reason. (Cooksey, supra,
123 Cal.App.4th at p. 257, italics omitted.)

                                              13
Evans had told no one other than his supervisor about Walker‟s medical condition,
which he was unaware had been diagnosed as a stroke, and Pharr had not heard
about the stroke from Sergeant Evans or any other supervisor. The declarations
were refiled in support of the state court summary judgment motion after remand.
Walker sought a continuance and the court moved the hearing date forward to July
2011, giving Walker six months to conduct additional discovery. Walker did
nothing until the City resubmitted its moving papers in April 2011, at which time
he urgently noticed six depositions, including those of the key witnesses whose
identities and significance had been known since the case was filed. Terrell‟s
declaration gave no reason for the delay. Instead, he sought to shift the blame to
the City‟s counsel because in response to his last-minute deposition notices,
discovery disputes arose which could not be resolved in the time remaining. Such
disputes are commonplace and should have been anticipated when the court
granted the continuance.
      On appeal, Walker attempts to support his attorney‟s inaction with the
specious contention that he had “no way” of “decipher[ing] if [the City] would
have kept a consistent approach regarding the invasion of privacy claim” and that
he was being “held retroactively responsible for the fact that [the City] happened to
file an identical motion in April 2011, to the Motion that was previously vacated in
December 2010.” A plaintiff has an obligation to conduct all discovery necessary
to establish the essential facts of the claims alleged in the complaint without regard
to the defense‟s strategy with respect to summary judgment. The record indicates
that Walker filed the invasion of privacy claim based on the erroneous claim that
Sergeant Evans had revealed at a roll call that Walker had suffered a stroke. He
was made aware in late 2010 that Sergeant Evans denied knowing Walker had
been diagnosed as having suffered a stroke and denied having told anyone other
than Lieutenant Smith that Walker had suffered an incapacitating medical
                                          14
condition of any kind. Walker himself confirmed in his November 2010
deposition that Harold Evans had not revealed Walker‟s stroke to others at roll call.
Moreover, Pharr denied hearing about Walker‟s stroke from Evans or any other
supervisor. As the opposition to the summary judgment motion attests, Walker
was in possession of no admissible evidence to controvert these witnesses or to
support a claim that information about his medical condition had been
disseminated by anyone for whom the City was potentially liable. The court
granted him a continuance in order to allow him to obtain such evidence. He failed
to take advantage of the opportunity. The court was not required to provide a
second chance. “The statute does not provide for an unlimited number of
continuances.” (Roth v. Rhodes, supra, 25 Cal.App.4th at p. 547.) The lack of
diligence as well as the inadequacy of the showing justified the court‟s decision to
deny the second request for continuance of the motion for summary judgment.12


      B. Grant of Summary Judgment
      Although Walker does not purport to raise any issues concerning the merits
of the court‟s grant of summary judgment, his brief suggests the motion was
improvidently granted because Sergeant Evans‟s deposition testimony established
that when he disclosed to Lieutenant Smith that Walker had a medical condition,
Walker was no longer going into work, and there was no “immediate urgency or
threat that [Walker‟s] medical condition would affect [his] ability to perform his



12
       Walker contends that the trial court‟s abuse of discretion in refusing to grant a
continuance is established by reference to the fact that the same judge granted a defense
request for continuance of the trial in the related case filed in December 2010. The
court‟s decision to deny the second request for continuance was supported by the record.
Its decision to continue a trial in a related, but distinct, matter has no bearing on the
current appeal.

                                           15
duties.”13 Preliminarily, we point out that Walker‟s opposition contained no
separate statement of facts or exhibits, and the trial court sustained the City‟s
hearsay objections to the portions of Terrell‟s declaration purporting to paraphrase
Sergeant Evans‟s deposition testimony. Accordingly, no such evidence was
properly before the court. Additionally, the opposing party‟s failure to comply
with the requirement of filing a separate statement of facts alone constitutes
sufficient grounds to grant a summary judgment motion. (Code Civ. Proc., § 437c,
subd. (b)(3).) Finally, even had the deposition testimony been properly submitted,
it would not have raised a material issue of fact.
       The tort of invasion of privacy may be committed by “„(1) public disclosure
(2) of a private fact (3) which would be offensive and objectionable to the
reasonable person and (4) which is not of legitimate public concern.‟” (Shulman v.
Group W Productions, Inc. (1998) 18 Cal.4th 200, 214.) “Liability for the
common law tort requires publicity; disclosure to a few people in limited
circumstances does not violate the right.” (Ignat v. Yum! Brands, Inc. (2013) 214
Cal.App.4th 808, 820; see, e.g., Porten v. University of San Francisco (1976) 64
Cal.App.3d 825, 828 [university‟s disclosure of transcript to scholarship
commission did not constitute communication to public at large]; Timperley v.
Chase Collection Service (1969) 272 Cal.App.2d 697, 699 [creditor has limited
right to reveal to others existence of debtor‟s obligation in order to collect debt];
Schwartz v. Thiele (1966) 242 Cal.App.2d 799, 805-806 [defendant‟s


13
       Walker also attempts to attach significance to the evidence establishing that
Sergeant Evans was unfamiliar with the HIPAA, which, according to Walker, requires
employers to keep employees‟ medical conditions confidential. Walker identifies no
authority for this proposition; indeed, he cites to no specific provision of this statute in
either of his briefs. Regardless, evidence of Sergeant Evans‟s lack of familiarity with a
complex statute does not controvert his assertion that he did not disclose Walker‟s private
medical information to any unauthorized third party.

                                            16
communication to mental health counselor that plaintiff might be in need of care
and treatment not a public disclosure].)14
       We disagree that Sergeant Evans had no legitimate reason for disclosing to
his superior the reason an employee under his supervision was out on a prolonged
leave. Moreover, as the above authorities make clear, disclosure to a single person
cannot support the tort. The City presented evidence negating an essential element
of the claim -- public disclosure of a private fact by a person for whom the City
was potentially liable -- and establishing that Walker did not possess evidence
needed to support the element. (See Superior Dispatch, Inc. v. Insurance Corp. of
New York (2010) 181 Cal.App.4th 175, 186.) The burden shifted to Walker to
show that a triable issue of material fact existed. (Ibid.) He failed to do so. The
trial court did not err in granting summary judgment.


       C. Award of Attorney Fees
       Code of Civil Procedure section 1038 provides that “[i]n any civil
proceeding under the California Tort Claims Act,” the court shall “at the time of
the granting of any summary judgment . . . determine whether or not the plaintiff
. . . brought the proceeding with reasonable cause and in the good faith belief that
there was a justifiable controversy under the facts and law which warranted the
filing of the complaint . . . .” If the court determines the proceeding “was not

14
        The City cites a number of authorities for the proposition that the common law
right of privacy against public disclosure cannot be infringed by oral communications but
requires a writing. (See, e.g., Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th
1, 27, fn. 7; Grimes v. Carter (1966) 241 Cal.App.2d 694, 698.) Recently, the Fourth
District found that the requirement of a writing originated in dictum and was contrary to
the tort‟s purpose and therefore concluded a writing was not required to maintain an
action for public disclosure of a private fact. (Ignat v. Yum! Brands, Inc., supra, 214
Cal.App.4th at p. 819.) We need not choose sides in this debate as we resolve the issues
presented on other grounds.

                                            17
brought in good faith and with reasonable cause,” the court “shall render judgment
in favor of [the defendant] in the amount of all reasonable and necessary defense
costs,” including “reasonable attorneys‟ fees.” (Code Civil Proc., § 1038, subds.
(a)-(b).)
       “Good faith, or its absence, involves a factual inquiry into the plaintiff's
subjective state of mind [citations].” (Knight v. City of Capitola (1992) 4
Cal.App.4th 918, 932, disapproved on another ground in Reid v. Google, Inc.
(2010) 50 Cal.4th 512, italics omitted.) As a party‟s “subjective state of mind will
rarely be susceptible of direct proof[,] usually the trial court will be required to
infer it from circumstantial evidence.” (Ibid.) “Because the good faith issue is
factual, the question on appeal will be whether the evidence of record was
sufficient to sustain the trial court's finding.” (Ibid.) The term “„reasonable
cause‟” is generally considered synonymous with “„probable cause‟” and is
“defined under an objective standard as „“whether any reasonable attorney would
have thought the claim tenable.”‟” (Kobzoff v. Los Angeles County Harbor/UCLA
Medical Center (1998) 19 Cal.4th 851, 857 (Kobzoff), quoting Carroll v. State of
California (1990) 217 Cal.App.3d 134, 141.) “Because the opinion of the
hypothetical reasonable attorney is to be determined as a matter of law, reasonable
cause is subject to de novo review on appeal.” (Knight v. City of Capitola, supra,
at p. 932.) “Section 1038 applies not only to initiation of an action but also to steps
to pursue it after it has been filed.” (Id. at p. 931.)
       “[T]he statute quite clearly indicates plaintiffs must not only bring (or
maintain) their action „with reasonable cause,‟ but must also bring (or maintain) it
„in the good faith belief that there [is] a justifiable controversy under the facts and
law.‟” (Kobzoff, supra, 19 Cal.4th at p. 861, quoting Code Civ. Proc., § 1038,
subd. (a).) Accordingly, “before denying a section 1038 motion, a court must find
the plaintiff brought or maintained an action in the good faith belief in the action's
                                            18
justifiability and with objective reasonable cause.” (Kobzoff, supra, at p. 862,
italics added.) Here, the trial court found that Walker maintained the invasion of
privacy claim against the City without reasonable cause and without a good faith
belief in the existence of a valid claim. Because our independent review leads us
to conclude that reasonable cause was lacking, we need not consider whether
Walker acted in subjective bad faith.
      A plaintiff cannot meet the reasonable cause requirement “simply by
showing that he or she had no information, one way or the other, as to the
existence of one or more elements of the cause of action. If a legislative purpose to
protect public entities from meritless claims is to be served, a plaintiff must bear a
burden of investigation sufficient to establish at least a basis for reasonable belief
that all elements exist. Abstract hope is not reasonable belief . . . .” (Knight v. City
of Capitola, supra, 4 Cal.App.4th at p. 933.) “Once what the plaintiff (or his or her
attorney) knew has been determined, or found to be undisputed, it is for the court
to decide „“whether any reasonable attorney would have thought the claim tenable
. . . .”‟” (Id. at p. 932, quoting Carroll v. State of California, supra, 217
Cal.App.3d at p. 141.)
      The record makes clear that Walker‟s claim for invasion of privacy was
based on the erroneous belief that Sergeant Evans had revealed information about
his medical condition during a roll call. It is equally clear that Walker had no
objectively valid reason for that belief and based it solely on a conversation with
Pharr, during which Pharr allegedly stated that he had heard about Walker‟s stroke
at a roll call but did not identify who said it or the circumstances under which it
was said. By the time of the first summary judgment motion, it was apparent that
Sergeant Evans was not the party who revealed it to Pharr and that Walker had no
reason to believe that Pharr had heard it from any other supervisor. Moreover, the
evidence established that a number of Walker‟s fellow employees were aware of
                                           19
his condition, having been present when he suffered the stroke, when he attempted
without rehabilitation to resume his duties, and when he spoke about it himself,
suggesting that Pharr could have learned the information from a variety of sources.
Yet Walker continued to maintain the action and resist the City‟s efforts to obtain
judgment. Under these circumstances, the trial court was warranted in awarding
attorney fees to the defendant City.15
       Walker contends the amount awarded was arbitrary. We disagree. The City
presented the attorney‟s written bills as exhibits to its motion. The trial court
indicated it had reviewed the evidence and subtracted fees expended during
litigation in federal court, as well as unnecessary and excessive fees for services
rendered during the litigation in state court. Walker does not contend now, and did
not contend below, that counsel‟s rates were excessive or that any specific item
billed after the matter was remanded was unwarranted. “„“The experienced trial
judge is the best judge of the value of professional services rendered in his [or her]
court, and while his [or her] judgment is of course subject to review, it will not be
disturbed unless the appellate court is convinced that it is clearly wrong” --
meaning that [the court] abused its discretion.‟” (Thayer v. Wells Fargo Bank
(2001) 92 Cal.App.4th 819, 832.)




15
        Walker contends the district court‟s statements when it denied the motion to
dismiss supports the objective viability of the claim. The district court‟s statement was
based on the allegations of the pleadings, when the court had no information indicating
whether Walker was in possession of supporting evidence. As the court subsequently
stated, it had “invested [no] time familiarizing itself with [Walker‟s] . . . invasion of
privacy claim and the supporting facts . . . .”

                                            20
                                  DISPOSITION
      The judgment and order awarding attorney fees and costs are affirmed. The
City is awarded its costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                            MANELLA, J.


We concur:




WILLHITE, Acting P. J.




SUZUKAWA, J.




                                       21
