Filed 11/3/15 Cline v. Time Warner Cable, LLC CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



LADON CLINE,

         Plaintiff and Appellant,                                        E060693

v.                                                                       (Super.Ct.No. CIVRS1208480)

TIME WARNER CABLE, LLC, et al.,                                          OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,

Judge. Affirmed in part; reversed in part.

         Portner Law Offices and Michael G. Portner for Plaintiff and Appellant.

         Hill, Farrer & Burrill, James A. Bowles and Casey L. Morris for Defendant and

Respondent Time Warner Cable, LLC.




                                                             1
       Plaintiff and appellant LaDon Cline appeals the grant of summary judgment

motion in favor of defendant and respondent Time Warner Cable, LLC (TWC).1

Beginning in 2007, Cline worked for TWC as a customer service representative.

Sometime in 2010, she developed carpal tunnel syndrome and took days off. In 2011,

she suffered from anxiety and stress. In 2012, she again was absent from work due to

wrist pain and anxiety. Cline qualified for leave under the California Family Rights Act

(CFRA) and/or the federal Family Medical Leave Act (FMLA). TWC terminated Cline

on May 25, 2012, on the basis that Cline took more days than she was allowed under the

CFRA and/or FMLA and that she failed to provide the proper medical certification to

justify the additional days in violation of CFRA and/or FMLA and company policy.

Cline filed her complaint alleging discrimination during employment, discrimination

resulting in termination of employment, violation of the California Fair Employment and

Housing Act (FEHA), failure to accommodate disability, failure to engage in interactive

process to accommodate disability, retaliation, and wrongful termination.

       The trial court granted TWC’s motion for summary judgment finding that Cline

had failed to meet her initial burden of demonstrating an adverse employment action due

to disability discrimination. Cline contends on appeal that the trial court erred by

granting TWC’s motion for summary judgment as follows: (1) There were triable issues

of fact as to her claims for violation of CFRA, disability discrimination, and failure to


       1 Summary judgment was also granted in favor of Cline’s supervisor, Saul
Vieyra; Cline does not appeal the grant of summary judgment as to her claims against
Vieyra (see fn. 3 post).


                                              2
accommodate; (2) the trial court erred by overruling her objection to the admission of

records and employee statements from a third-party company, Unum, which was charged

with administering employee leave for TWC, as the records were admitted without being

authenticated or without foundation, and were inadmissible hearsay; and (3) there was a

triable issue of fact as to whether she submitted the appropriate documentation of medical

certifications to support her leave time.

       We conclude the trial court should have sustained objections made by Cline to the

Unum records. Statements by Unum employees made in time records that detailed the

days Cline was absent from work and the determination by Unum that her medical

certification was insufficient within company policy, and to support she was covered by

FMLA and/or CFRA, were not qualified as business records under Evidence Code

section 1271 and no exception was provided to admit the statements. Without such

evidence, TWC could not meet its burden to negate an essential element of Cline’s prima

facie case of discrimination, or that there was a nondiscriminatory, legitimate reason for

her termination of employment. We reverse the grant of the summary judgment motion.

                     FACTUAL AND PROCEDURAL HISTORY

       A.     TWC’S STATEMENT OF UNDISPUTED FACTS

       Cline started working for TWC in August 2007 as a customer service

representative. On August 28, 2007, she received an employee handbook that detailed

that TWC had a policy prohibiting discrimination and that she could report any problems

to the human resources department. In July 2010, TWC granted Cline FMLA leave for




                                             3
carpal tunnel syndrome, and when Cline returned to work, TWC had an ergonomic

specialist set up her workspace.

       Between September 25, 2008, and February 22, 2012, Cline received 14 corrective

action notices regarding her absences from work. Unum, TWC’s third-party benefits

administrator, denied Cline’s request for FMLA and/or CFRA leave between June and

July 2011 because they determined that Cline had already exhausted her leave allotment

for the year. In addition, Unum determined Cline failed to provide proper documentation

to substantiate the need for the leave. Cline failed to complete an Americans with

Disabilities Act (ADA) packet as requested by TWC, to determine whether she qualified

for additional absences under that section.

       On November 2, 2011, TWC issued Cline a written warning for failing to follow

the leave of absence policy and the ADA information regarding her leave for June and

July 2011, which caused Cline to incur 35 days of unexcused absences in excess of her

approved FMLA and/or CFRA leaves.

       On February 22, 2012, TWC issued a final written warning to Cline about 11.5

additional unexcused absences that exceeded her FMLA and/or CFRA leave. In January

2012, Cline requested intermittent medical leave, but it took her until April 2012 to

submit the supporting documentation. After receiving medical certification, Unum

retroactively approved Cline’s request for intermittent FMLA and/or CFRA leave for the

period of January 2012 to January 2013, not to exceed four times per month for treatment

and four times per month for episodes of incapacity lasting up to one day each. In March

2012, Cline missed work on seven days; in April 2012, she missed work on 11 days; and


                                              4
in May 2012, she missed work on six days. TWC noted that Cline admitted in her

deposition that she exceeded the eight days each month and was advised by TWC and

Unum that she had to provide additional medical certification. Cline was informed on

April 5, 2012, that she was exceeding the time off approved by medical certification and

that she was exceeding her FMLA and/or CFRA allotment.

      On April 27, 2012, Unum sent a letter to Cline asking her to submit additional

medical certification by May 12, 2012, to support her need for additional absences. On

May 15, 2012, she was sent another letter informing her that because she did not submit

the required documentation, her leave was not approved after April 23, 2012. On May

25, 2012, she was terminated for failing to follow the leave of absence procedures.

      In support of these facts, TWC presented several exhibits. TWC attached excerpts

from a deposition of Cline. Cline had pain in her wrists in 2010. She developed anxiety

in July 2011. Cline acknowledged that in 2012 she was approved for FMLA and/or

CFRA leave for treatment four times each month, and four times each month for

episodes. Cline acknowledged that she took more than eight days each month and that

TWC human resource manager Anne Long advised her she had to provide additional

documentation in order to take more than eight days. Cline continued to take more than

eight days each month after the notice from Long due to carpal tunnel joint pain and

stress. Cline had no idea how many days in excess of her FMLA and/or CFRA days she

took. She had never seen a summary of her attendance. She noted that there were times

listed on warnings she received, where she was actually out on what she believed to be

approved leave, but was marked absent. Cline believed that in the middle of 2011 she


                                            5
was on leave and her doctor had sent in the appropriate paperwork. She received

additional documentation from her doctor after her termination to support being absent

more than eight days.

       TWC also presented corrective action notices and TWC performance feedback

forms. The corrective action forms provided by Unum detailed her absences, that she had

exhausted her FMLA and/or CRFA leave, and that she needed to provide additional

certification to take additional leave. She signed the forms acknowledging she had

received the documents. These forms also detailed that she had been given a packet to

submit to qualify under the ADA, but had not returned it according to Unum. Cline’s

performance evaluations also detailed that Unum had notified TWC that she had been

taking unauthorized leave.

       Exhibit No. 5 was a summary of Cline’s attendance for the period of January 1,

2009, through May 26, 2012. It detailed the days that she was absent, which were not

approved as FMLA and/or CFRA time.

       TWC submitted exhibit No. 32, which was a letter from TWC to Cline. Unum had

notified TWC that Cline had been denied FMLA and/or CFRA coverage beginning June

6, 2011, due to a lack of medical certification. Cline was advised to return the medical

certification or return to work by July 12, 2011. Long sent an email to Cline as to the

dates that Unum had approved her leave, but there were outstanding days from June 6 to

July 14, 2011, and August 30 to September 17, 2011, which were not approved.




                                             6
       Exhibit No. E was a medical certification from Kaiser that was sent to Unum. It

included the language, “Patient under medical management and care for a chronic health

condition and will require intermittent time off work of 2-4 times per month, 1 weekday

per week, with each episode lasting 4-8 hours for flare ups and or to go to dr appts

starting 1/19/12 and lasting for 1 year.” (All caps. omitted.)

       TWC also submitted a declaration from Elissa L. Gysi. She was an attorney that

represented TWC. Gysi essentially declared that the aforementioned exhibits were true

and correct copies. She subpoenaed records from Kaiser Hospital, which included

certification from the custodian of records from Kaiser. The records provided that Cline

received treatment between March and May 2012 for her disability. Gysi reviewed

Cline’s attendance records (exh. No. 5). Those records showed Cline missed seven days

in March 2012, 11 days in April 2012, and eight days in May 2012. Between March and

May 2012, Cline was in treatment only two days.

       Anne Long was employed by TWC as a human resource manager. She met Cline

in August 2007 when Cline was hired to be a customer service representative. Long

declared that on June 6, 2011, Cline went out on “FMLA leave” even though her FMLA

and/or CFRA allotment for the year had been exceeded. Long was notified by Unum on

June 27, 2011, that this was an unapproved absence. Further, TWC sent an ADA packet

to Cline and requested it be returned by July 12, 2011, with the appropriate medical

certification. Long met with Cline to provide the certification. Cline never provided the

certification for ADA qualification.




                                             7
       Long had a conference call with Cline on August 25, 2011, to resolve the

absences. Cline was informed she had to provide medical certification to Unum. Long

received an email from Unum regarding Cline’s August to October 2011 absences, which

Unum stated were not allowed under FMLA and/or CFRA (her 12 weeks were

exhausted) and she had no sick leave. Long sent Cline an email detailing the unapproved

absences. Long sent Cline a written warning on October 28, 2011, that she had not

complied with the absence procedure by failing to provide medical certification. The

warning detailed that Cline had 35 unexcused absences. Cline acknowledged that she

had received the warning.

       Another warning was sent on February 22, 2012. Cline had an additional 11.5

days unexcused either as absences or leaving work early. She had provided no medical

certification. Cline signed the warning. On April 4, 2012, Unum sent an email to Cline

that she had been certified for intermittent FMLA leave from January 19, 2012, to

January 19, 2013, of four times per month for treatment and four times per month for

possible episodes. Long declared, “I interpreted this certification to mean that Cline was

approved to take intermittent FMLA leave of up to eight days per month.” Long met

with Cline and Cline was advised that she had to comply with the FMLA and/or CFRA

requirements; she could take no additional leave unless she applied for an ADA

accommodation. Long also told Cline that she had to report all of her absences to Unum.

       On April 27, 2012, Cline was notified by Unum that she was taking more time off

than approved by FMLA. Unum requested that she provide medical certification for the

additional time off. Any time taken after April 22, 2012, was not approved. Unum


                                            8
received no certification by May 17, 2012. TWC also presented several letters from

Unum to Cline from March 2012 through May 15, 2012, detailing that she was not

approved for FMLA and/or CFRA leave and that she needed to provide proper medical

certification.

       Long attested a true and correct copy of Cline’s attendance record from August

2011 to May 2012 was attached as exhibit No. 5. On May 18, 2012, Long prepared a

termination letter; it was sent to Cline on May 25, 2012. Long attested that if Cline had

provided proper medical certification for the time period of March though May 2012, she

would not have been terminated. On May 25, 2012, Cline was terminated on the grounds

that she failed to “follow the leave of absence procedure.”

       Additionally, TWC presented evidence that in response to a request for admission,

Cline admitted that between February 2012 and May 2012 the only treatment she sought

for FMLA qualified medical treatment was from Kaiser.

       B.        CLINE’S OBJECTIONS TO SUMMARY JUDGMENT MOTION

       Since we conclude post that TWC did not meet its burden in their motion for

summary judgment, Cline was not required to present evidence in opposition to the

motion. We do note that Cline objected to the admission of statements by employees of

Unum and any documents from Unum. Cline provided in her opposition that TWC had

failed to provide any foundation or exception to the hearsay rule as to Unum’s documents

and statements by Unum’s employees. TWC could not rely on the statements of Unum

that Cline had exhausted her FMLA and/or leave and failed to provide medical

certification.


                                             9
       In addition, in her detailed separate statement of undisputed facts, Cline stated she

was objecting to every document prepared by Unum, and any statements made by

employees of Unum to TWC employees. Cline also filed separate objections to evidence

in which she objected to the evidence supporting the summary judgment motion,

including the declarations of Long and Gysi and the exhibits discussed in their

declarations, on the grounds of hearsay, foundation and lack of personal knowledge.

       C.     COMPLAINT

       Cline filed her complaint for damages on November 1, 2012. She alleged, as

pertinent to the claims in this appeal, as follows: First Cause of Action—disability

discrimination during employment in violation of FEHA (Gov. Code, § 12940);2 Second

Cause of Action—disability discrimination resulting in termination of employment in

violation of FEHA (§ 12940); Fourth Cause of Action—failure to accommodate

disability (§ 12940, subd. (m)); Seventh Cause of Action—violation of the CFRA

(§ 12945.2); and her Ninth Cause of Action—wrongful termination in violation of public

policy.3




       2 All further statutory references are to the Government Code unless otherwise
indicated.

       3  Cline only appeals these causes of action. As stated ante, she does not appeal
the grant of summary judgment as to her claims of harassment by her supervisor, Saul
Vieyra, and other causes of action. We will not review the evidence as to those claims.


                                             10
       Cline alleged that she was employed by TWC from August 2007 until May 25,

2012. She had exhausted her administrative remedies and was granted the right to sue on

June 27, 2012. She alleged that during her employment she suffered serious injuries,

which rendered her disabled. TWC was aware of her disabilities. Cline was

discriminated against because of her disabilities and for taking disability leave. Due to

her disability, she was terminated on May 25, 2012. TWC violated section 12940 by

terminating her employment. She was part of a protected class under FEHA. Further,

she alleged she was not provided accommodation for her disability. TWC terminated

Cline in retaliation for her disability. Cline had to take leave due to her disability under

CFRA and/or FMLA. When she returned, she was denied leave under section 12945.2.

She was harassed and ultimately terminated due to the leave. She also alleged that she

could not be terminated due to her disability; such discrimination violated public policy.

       TWC filed an answer raising 18 affirmative defenses.

       TWC filed its motion for summary judgment on September 25, 2012. TWC

claimed that Cline’s causes of action for disability discrimination, retaliation, violation of

CFRA, and wrongful termination under public policy fail because she was terminated for

legitimate business reasons. Further, her causes of action for failure to accommodate

disability and cause of action under the CFRA fail because she was granted every

accommodation that she properly requested.

       D.     TRIAL COURT RULING

       The matter was heard on December 20, 2013. Cline argued that TWC had not laid

a foundation for the records from Unum. Cline argued, “without the Unum forms, their


                                             11
entire motion fails, because they can’t show she didn’t comply with the requirements of

[CFRA].” TWC countered that Long had declared in her declaration that they were

business records of Unum. Unum was TWC’s agent for purposes of dealing with FMLA

issues. Further, Cline never denied receiving the records, and therefore, they were

properly authenticated. Cline’s counsel responded that the fact they were sent by email

or received by Cline did not make them business records; Unum must provide they were

true and correct copies made at the time of the events. The trial court took matter under

submission.

       In its written notice of ruling, the trial court first overruled Cline’s hearsay

objections without stating its reasoning. It then concluded that “Plaintiff failed to meet

her initial burden of demonstrating that she suffered an adverse employment action due to

disability discrimination under FEHA.” The trial court relied upon TWC’s material facts,

Cline’s additional facts, Cline’s deposition with supporting exhibits, and the declarations

of Gysi and Long with supporting exhibits.

       The trial court ruled, “Nothing in Plaintiff’s deposition or her documentary

evidence indicates that her employer discriminated against her because of her disability.

Instead, much of her testimony and evidence suggests that her employer allowed her to

use her allowable FMLA and/or CFRA leave time to obtain treatment for her injury and

to allow it to heal. Indeed, Plaintiff’s evidence establishes that she was not terminated

because of her disability, but rather because of her repeated failure to adhere to the

procedures for seeking, obtaining and taking FMLA and/or CFRA leave time. This led to

an excessive number of unexcused absences from work in violation of her employer’s


                                              12
attendance policy, and that despite repeated warnings, Plaintiff continued to take

unexcused time off from work. [¶] Plaintiff’s deposition and documentary evidence also

supports her employer’s argument that it gave her reasonable accommodations for her

disability, and properly engaged in an interactive process. Plaintiff’s documents indicate

that it was she, not her employer, who failed to follow the proper procedures for the

submission of documentation on the requisite forms. [¶] . . . [¶] In short, there are no

triable issues of material fact as to the failure to accommodate, harassment, retaliation,

violation of FMLA and/or CFRA, and wrong termination claims.”

                                        DISCUSSION

       A.     STANDARD OF REVIEW

       “A trial court may only grant a motion for summary judgment if no triable issues

of material fact appear and the moving party is entitled to judgment as a matter of law.”

(Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) “[G]enerally, from

commencement to conclusion, the party moving for summary judgment bears the burden

of persuasion that there is no triable issue of material fact and that [s]he is entitled to

judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,

850, fn. omitted.)

       In cases involving FEHA, “California has adopted the three-stage burden-shifting

test established by the United States Supreme Court.” (Guz v. Bechtel National, Inc.

(2000) 24 Cal.4th 317, 354; see also McDonnell Douglas Corp. v. Green (1973) 411 U.S.

792, 802-805.) This approach requires the plaintiff “to establish a prima face case of [an

unlawful employment practice.] [¶] If the plaintiff meets this burden, ‘“‘the burden


                                               13
shifts to the defendant to [articulate a] legitimate nondiscriminatory reason for its

employment decision. . . .’ . . .”’ . . . . [¶] . . . [I]f the defendant presents evidence

showing a legitimate, nondiscriminatory reason, the burden again shifts to the plaintiff to

establish the defendant intentionally [engaged in an unlawful employment practice]

against him or her. [Citation.] The plaintiff may satisfy this burden by proving the

legitimate reasons offered by the defendant were false, creating an inference that those

reasons served as a pretext for [the unlawful employment practice].” (Wills v. Superior

Court (2011) 195 Cal.App.4th 143, 159-160 (Wills).)

       “A defendant’s summary judgment motion ‘slightly modifies the order of these . . .

showings.’ [Citation.] Consequently, the [defendant] ha[s] the initial burden to either

(1) negate an essential element of [the plaintiff’s] prima facie case [citation] or (2)

establish a legitimate, nondiscriminatory reason for [the adverse action]. [¶] ‘[T]o avoid

summary judgment [once the employer makes the foregoing showing], an employee . . .

must offer substantial evidence that the employer’s stated nondiscriminatory reason for

the adverse action was untrue or pretextual, or evidence the employer acted with a

discriminatory animus, or a combination of the two, such that a reasonable trier of fact

could conclude the employer engaged in [an unlawful employment practice].’” (Wills,

supra, 195 Cal.App.4th at p. 160.)

       We note that the trial court applied the wrong standard in granting TWC’s

summary judgment motion. The trial court stated, “Plaintiff failed to meet her initial

burden of demonstrating that she suffered an adverse employment action due to disability

discrimination under FEHA.” It then recounted the evidence presented by Cline in


                                               14
opposition to the summary judgment motion as evidence that she failed to show

discrimination. However, the initial burden was on TWC to negate an essential element

of Cline’s prima facie case or to present evidence that the adverse employment action

was based upon legitimate, nondiscriminatory factors. (Wills, supra, 195 Cal.App.4th at

p. 160.)

       Nonetheless, we evaluate a summary judgment ruling de novo, independently

reviewing the record to determine whether there are any triable issues of material fact.

(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) “In practical effect, we

assume the role of a trial court and apply the same rules and standards that govern a trial

court’s determination of a motion for summary judgment.” (Distefano v. Forester (2001)

85 Cal.App.4th 1249, 1258.)

       B.     ANALYSIS

       We conclude that TWC did not meet its initial burden of presenting admissible

evidence showing either that one or more elements of Cline’s prima facie case was

lacking or that the employment action was based upon legitimate, nondiscriminatory

factors. TWC’s motion for summary judgment was based on its claim that Cline had

extensive absences in excess of her FMLA and/or CRFA credits and had failed to provide

medical certification for that leave. However, the evidence presented by TWC to support

its claim that Cline no longer had CFRA and/or FMLA leave credits, or that she had

failed to provide proper medical certification, consisted of Unum records and statements

by Unum employees, which were inadmissible hearsay. As such, the trial court




                                             15
improperly granted summary judgment on the First, Second, Fourth, Seventh and Ninth

Causes of Action.

       FMLA is the federal provision that allows an eligible employee to take medical

leave for “a serious health condition that makes the employee unable to perform the

functions of the position of such employee.” (29 U.S.C. § 2612(a)(1)(D).) “The CFRA

[FMLA’s state counterpart] is contained within the California Fair Employment and

Housing Act (FEHA).” (Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480,

487 (Rogers).) “The CFRA has two principal components: a right to leave of up to 12

weeks in any 12-month period to care for a family member or for the employee’s own

medical condition [citation], and a right to reinstatement in the same, or a comparable,

position at the end of the leave.” (Richey v. Autonation, Inc. (2015) 60 Cal.4th 909, 919;

see also § 12945.2.)

       “By prohibiting ‘employment discrimination based upon family and medical

leave, the CFRA strengthens the FEHA’s general goal of preventing the deleterious

effects of employment discrimination, and also furthers the CFRA’s specific goal of

promoting stability and economic security in California families.’ [Citation.]” (Faust v.

California Portland Cement Co. (2007) 150 Cal.App.4th 864, 878, fn. omitted (Faust).)

“An employee who takes CFRA leave is guaranteed that taking such leave will not result

in a loss of job security or other adverse employment actions.” (Rogers, supra, 198

Cal.App.4th at p. 487.)




                                            16
       “With respect to the requirements for requesting leave, section 12945.2 provides

in relevant part at subdivision (k): ‘(1) An employer may require that an employee’s

request for leave because of the employee’s own serious health condition be supported by

a certification issued by his or her health care provider. That certification shall be

sufficient if it includes all of the following: [¶] (A) The date on which the serious health

condition commenced. [¶] (B) The probable duration of the condition. [¶] (C) A

statement that, due to the serious health condition, the employee is unable to perform the

function of his or her position. [¶] (2) The employer may require that the employee

obtain subsequent recertification regarding the employee’s serious health condition on a

reasonable basis, in accordance with the procedure provided in paragraph (1), if

additional leave is required. [¶] (3)(A) In any case in which the employer has reason to

doubt the validity of the certification provided pursuant to this section, the employer may

require, at the employer’s expense, that the employee obtain the opinion of a second

health care provider, designated or approved by the employer, concerning any

information certified under paragraph (1).’” (Faust, supra, 150 Cal.App.4th at p. 880, fn.

omitted.)

       In order to prove a prima facie case of CFRA discrimination (Cline’s Seventh

Cause of Action) the employee must show that: (1) the employer was subject to the

CFRA; (2) the employee was eligible for CFRA leave; (3) the employee exercised his or

her right to take a qualifying leave; and (4) the employee suffered an adverse

employment action because he or she exercised the right to take CFRA leave. (Rogers,

supra, 198 Cal.App.4th at pp. 490-491.) “A prima facie case for discrimination ‘on


                                             17
grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers

from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to

adverse employment action because of his disability.” (Faust, supra, 150 Cal.App.4th at

p. 886.)

       As set forth ante, it was TWC’s burden to “either (1) negate an essential element

of [the plaintiff’s] prima facie case [citation] or (2) establish a legitimate,

nondiscriminatory reason for [the adverse action].” (Wills, supra, 194 Cal.App.4th at p.

160.) TWC relied almost exclusively on Unum records, information obtained from

Unum documents, and statements from Unum employees to support its motion for

summary judgment on the grounds that Cline took excessive leave and that she failed to

provide proper medical certification.

       Evidence Code section 1414 provides: “A writing may be authenticated by

evidence that: [¶] (a) The party against whom it is offered has at any time admitted its

authenticity; or [¶] (b) The writing has been acted upon as authentic by the party against

whom it is offered.” Authentication may be established by circumstantial evidence.

(People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.) For instance, the contents of

documents themselves and their physical location are valid means of authentication.

(People v. Smith (2009) 179 Cal.App.4th 986, 1001-1002; People v. Olguin (1994) 31

Cal.App.4th 1355, 1372-1373.) Unum’s records were properly authenticated.

       However, the trial court erred by relying upon the contents of those documents in

ruling on the motion for summary judgment. Evidence Code section 1271 provides:

“Evidence of a writing made as a record of an act, condition, or event is not made


                                               18
inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

[¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was

made at or near the time of the act, condition, or event; [¶] (c) The custodian or other

qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The

sources of information and method and time of preparation were such as to indicate its

trustworthiness.” We do not disturb evidentiary rulings made by the trial court in

connection with a motion for summary judgment in the absence of an abuse of discretion.

(Barnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)

       The trial court gave no reason for overruling Cline’s objections to the documents

prepared by Unum nor on any hearsay statements obtained from Unum’s employees that

were relied on by TWC. Moreover, TWC has made no attempt on appeal to establish that

the Unum records, including the documents that detailed Cline’s absences and for which

she had not provided proper medical certification, were business records. TWC only

argues that they were properly authenticated. These records were offered to support that

Cline was taking excessive absences but did not have FMLA and/or CRLA time and that

she failed to provide proper medical certification to cover the absences. This information

came from Unum, the third party company hired by TWC to administer leave. There was

no evidence of how Unum prepared their absence leave reports, or how it determined that

medical certifications Cline alleged to have submitted were improper. Documents

prepared by Unum and any statements relied upon by TWC that came from Unum

records or statements from employees clearly were inadmissible hearsay. TWC had the

burden of producing admissible evidence to negate an essential element of Cline’s prima


                                              19
facie case or establish a legitimate, nondiscriminatory reason for terminating Cline.

TWC failed to meet this burden.

       For the first time at oral argument, TWC argued that Long properly qualified the

records as business records and that the records were admitted for the non-hearsay

purpose of showing Long’s state of mind. We will not consider these new arguments

made for the first time at oral argument.

       TWC contends that this evidence merely corroborated other admissible evidence,

rendering the admission of Unum records, documents, and statements harmless. TWC

contends that the trial court would have reached the same conclusion based on Cline’s

deposition testimony, Long’s declaration, and TWC’s own records, which contain the

same factual assertions reflected in the Unum documents, that TWC granted Cline every

leave of absence for which she provided proper medical certification, and that Cline was

terminated because of her violation of TWC policy by failing to provide a medical

certification to substantiate her need for leave. Based on the citations in TWC’s

respondent’s brief, we disagree that these records were based solely on information

generated by TWC or were independent of the Unum evidence.

       TWC relies on Long’s declaration. However, her declaration specifically states

she was informed by Unum employees that Cline had failed to provide proper medical

certification for her absences and she knew of Cline’s excessive absences in violation of

TWC’s policies from Unum.




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       TWC also relies upon Cline’s deposition testimony. Cline acknowledged that

TWC did give her leaves of absence for medical conditions; she was asked by TWC and

Unum to provide medical certification to support her leave; that she received additional

medical certification from Kaiser after her termination; and that she was fired for failing

to follow the leave of absence procedures. She did acknowledge that TWC advised her

she was approved for taking eight days off each month from January 19, 2012, to January

19, 2013, and that she did take more than eight days in March, April and May 2012. She

also stated she returned a doctor note to substantiate that additional leave in which the

treating doctor stated, “I stated intermittent, which means intermittent.” Long told her

this was insufficient documentation. Cline had no idea how many days in excess of her

FMLA and/or CFRA leave she had taken.

       Based on Cline’s testimony, she did admit that she took more than eight days in

March, April and May 2012. However, she stated that she provided further medical

certification, but Long told her it was rejected. Nothing in Cline’s testimony shows that

she acknowledged she had exhausted her FMLA and/or CFRA leave for the time period

involved (2012) or that she was aware that she was taking leaves of absence improperly.

Cline’s deposition testimony does not support TWC’s summary judgment motion.

       TWC also relies upon the corrective action and performance forms given to Cline,

Kaiser Hospital records, subpoenas for medical records, the request for admission

answered by Cline, and the termination recommendations and letter of termination sent to

Cline. Even though these documents were generated by TWC, it is clear all of the

information contained in the documents was obtained from Unum. There is no way for


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this court to determine the reliability of that information. The records were not business

records and the statements made by Unum employees to Long were hearsay. TWC also

relies on exhibit No. 5, which is clearly a detailed absence report prepared by Unum. At

oral argument, TWC contended that exhibit No. 5 was a TWC document and that Cline

did not object to the exhibit. Initially, exhibit No. 5 has no heading or other marking that

indicates it was a TWC record. In fact, it is entirely unclear who prepared the document.

Further, Cline included in her objections to TWC’s evidence that she sought to have

exhibit No. 5 stricken from the evidence. Further, TWC relies on emails sent to Cline.

However, these all are based on statements made by Unum employees regarding Cline’s

absences and failure to obtain medical certification. Finally, TWC relies on deposition

testimony from Cline, which was attached to Cline’s opposition to the summary

judgment motion. Based on the burden of proof, TWC cannot rely on this evidence.

       Here, TWC based their summary judgment motion on their insistence that they

fired Cline because she had unexcused absences that exceeded her approved FMLA

and/or CFRA leave, or she had failed to provide proper medical certification within

company policy and FMLA and/or CFRA leave policy. However, the evidence presented

by TWC, that Cline had unexcused absences, all came from Unum. Without the records

from Unum, there was a triable issue as to whether Cline had taken an excessive number

of unexcused absences from work in violation of her employer’s attendance policy.

Further, there was an issue if she had violated company policy or failed to meet the

requirements of FMLA and/or CFRA.




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       In conclusion, TWC failed to meet its burden of establishing a legitimate,

nondiscriminatory reason for terminating Cline’s employment, or to negate an element of

Cline’s prima facie case. As such, summary judgment on Cline’s First, Second, Fourth,

Seventh, and Ninth Cause of Action should not have been granted.

                                      DISPOSITION

       The judgment is reversed with respect to the First, Second, Fourth, Seventh, and

Ninth Causes of Action, and the matter is remanded for further proceedings thereon; the

judgment is otherwise affirmed. Cline is awarded her costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                          J.

We concur:


RAMIREZ
                              P. J.


KING
                                 J.




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