Filed 6/24/16 Goncalves v. San Diego Gas & Electric Co. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



MICHAEL GONCALVES,                                                  D067987

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2013-00055594-CU-WT-CTL)
SAN DIEGO GAS & ELECTRIC
COMPANY,

         Defendant and Respondent.


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

Hayes, Judge. Affirmed.

         Gilleon Law Firm and James C. Mitchell, Samuel Austin Clemens; Charles

Moore, for Plaintiff and Appellant.

         Wilson Turner Kosmo and Claudette G. Wilson, Michael S. Kalt, Martina Mende

Nagle, for Defendant and Respondent.

         Plaintiff Michael Goncalves sued his former employer, defendant San Diego Gas

& Electric Company (SDG&E), alleging causes of action for medical condition/physical

disability discrimination and failure to prevent physical disability discrimination under
the Fair Employment and Housing Act ((FEHA); Gov. Code,1 § 12900 et seq.); wrongful

termination of employment in violation of public policy; and retaliation.2 In 2008,

Goncalves was diagnosed with Lynch Syndrome and colorectal and other digestive tract

cancers. He alleged that in 2012, SDG&E terminated him after denying him reasonable

accommodation to use the restroom more frequently. The trial court granted SDG&E's

summary judgment motion.

      On appeal, Goncalves contends the trial court erred because he had raised triable

issues of material fact as to each cause of action so as to defeat summary judgment. He

also claims the court erred by not disregarding SDG&E's reply separate statement and

purportedly new evidence submitted with its reply papers. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

The Complaint

      In 2003, Goncalves started working at SDG&E, and within one year was promoted

to service technician, in which capacity he visited residential and commercial customers'

premises to check for natural gas leaks or carbon monoxide contamination. Goncalves

alleged that beginning in 2006, SDG&E required service technicians to use a gas

measurement instrument (GMI) to do their job; however, the GMI's were unreliable and




1     Statutory references are to the Government Code unless otherwise stated.

2     Goncalves also alleged but subsequently dismissed causes of action for wrongful
termination based on a violation of Labor Code section 1120.5, and remedies under
Labor Code section 2699.
                                            2
therefore dangerous to SDG&E employees and the general public, and he had

complained to SDG&E about the devices.

       In 2008, Goncalves's colon was surgically removed and therefore during working

hours he needed to use the bathroom for bowel movements six to eight more times than

before. He alleged that around March 2012, his supervisors "started denying [him]

reasonable accommodation for his medical condition/physical disability and did not offer

to engage in an interactive process to reach such accommodations." Goncalves alleged

that he consistently received above average job performance reviews. He alleged that

one supervisor told him in March 2012, "if you are physically unable to do the job 'we'll

let you go.' "

       Goncalves alleged that in September 2012, SDG&E accused him of falsifying

company records and suspended him without pay for "stacking" job orders, meaning he

reported being at a customer's premises when in fact he was elsewhere. Goncalves sued

for disability discrimination under section 12940 subdivision (a), alleging that in

September 2012, SDG&E had fired him for falsifying his attendance records, but that

was a pretext for the fact it discriminated against him based on his disability. Goncalves

further alleged SDG&E failed to accommodate his disability under section 12940,

subdivision (k), despite the fact it knew that following his surgery he had not accurately

recorded his numerous daily bathroom breaks in a company-issued device. Goncalves

also alleged SDG&E violated public policy set forth in FEHA by wrongfully terminating

him. Finally, he alleged SDG&E retaliated against him for complaining about the GMI

devices. He sought punitive damages.

                                             3
SDG&E's Summary Judgment Motion

       SDG&E moved for summary judgment or alternatively summary adjudication. It

claimed Goncalves's 2012 termination was unrelated to his colon surgery four years

earlier; rather, it properly terminated him for falsifying records by stacking orders in

violation of SDG&E's Code of Business Conduct, which states, "Falsifying company

records is not allowed and could result in disciplinary action, up to and including

termination of employment, as well as legal action against the company or you

personally."

       SDG&E presented evidence that it required service technicians to use a mobile

data terminal (MDT) to record their different activities, including their work start and

stop times, lunch breaks, and movements from one premises to another. The supervisors

were able to access that information remotely. Relying on declarations from its

supervisors, SDG&E also stated in its memorandum of points and authorities that its

policy against falsifying records applies to acts of stacking, such as when "a technician

delays inputting job-completion information into the MDT, or inputs false information

suggesting the technician is at a location other than where they actually are. . . . By

stacking, a Service Tech can finish work early then continue to be paid without taking on

new job orders, and can mean Service Techs 'sitting on jobs a lengthy period of time so

work would be removed by Dispatch. . . . It also results in Dispatch having inaccurate

information about the location and workload of Service Techs. . . . [¶] . . . [¶]

[Goncalves] understood that he would be terminated for falsifying SDG&E records,

including inputting inaccurate information in his MDT. . . . In fact [his] supervisors and

                                              4
his union had warned him and other service technicians up to twenty times that 'stacking'

would result in termination, and he knew of three other technicians terminated for

'stacking'."

       SDG&E presented evidence that it terminated Goncalves because on September

12, 2012, a supervisor saw Goncalves driving outside of his service territory during

working hours. SDG&E investigated the matter and concluded Goncalves had not

accurately reported his location on his MDT, and Goncalves later admitted he had

stacked orders. According to SDG&E, on September 14, 2012, SDG&E supervisors tried

to locate Goncalves for over an hour to check his MDT, but he was not at the place

indicated on his MDT. He was eventually located at a different place. That day,

Goncalves admitted to his supervisors that he had engaged in stacking on both September

12 and 14, 2012. At a subsequent meeting with his union representative present,

Goncalves admitted stacking on even more days, and explained he did it because he

needed to use the bathroom. SDG&E pointed out that Goncalves initially grieved his

termination through his union, and during the proceedings he again admitted to stacking

orders. However, his union subsequently withdrew the grievance.

       SDG&E argued it was not required to engage in the interactive process to

accommodate Goncalves's medical condition because following Goncalves's surgery, his

doctor had released him to return to work with no restrictions. In any event, SDG&E

stated it had accommodated Goncalves by allowing him to use the bathroom whenever

and wherever he wanted. In particular, it agreed to let Goncalves use the bathroom at a

coworker's home because that was more convenient for Goncalves. It also exempted

                                            5
Goncalves from a transfer to a different location in order for him to continue using the

bathroom at his coworker's home. Goncalves had never requested that SDG&E provide

him any further accommodation.

       SDG&E contended Goncalves's causes of action for failure to prevent disability

discrimination and wrongful termination were derivative, and therefore failed with the

FEHA disability claim. SDG&E denied retaliating against Goncalves, pointing out that

its supervisors and other service technicians had expressed similar concerns about the

GMI's functionality and need for frequent repair, and SDG&E encouraged employees to

discuss the matter at biweekly safety meetings. SDG&E eventually replaced the devices

company-wide, starting in September 2013. SDG&E also said its employees did not rely

exclusively on the GMI's; rather, they were trained to detect possible gas leaks or carbon

monoxide in multiple ways: scent, a soap test, a meter clock test, a drop test, a flame test,

and sooting. SDG&E concluded: "Likely because of [its] responsiveness, and because

[Goncalves] had alternative tests to test for gas, [he] never refused to use the GMI. . . .

Nor did he file any grievance with his union, or utilize any of numerous reporting

mechanisms SDG&E provided for safety concerns."

Goncalves's Opposition

       In opposing SDG&E's motion, Goncalves stated his supervisors had claimed that

he was "stacking orders" by leaving a work order "on-site" on the MDT, even after he

had completed the order. He admitted doing so, but explained he did it in order to use the

bathroom. Goncalves argued his supervisors "authorized and in many instances

encouraged employees to enter data into their MDT that was incorrect. . . . A reasonable

                                              6
inference from this evidence, if credited by a jury, is that entering incorrect information

into an MDT was not considered falsifying company records." Goncalves also claimed a

supervisor defined stacking as "an employee leaving a work order 'on-site' on the MDT,

even if the order was completed, so the employee could avoid work or conduct personal

business on company time and be paid. . . . This evidence and the reasonable inferences

from it permit the conclusion that Goncalves'[s] stacking was not against SDG&E policy

because it was not done to avoid work or to attend to personal business on the

company['s] time."

       Goncalves also admitted that his evidence showed "SDG&E provided reasonable

accommodations to him from January 2009 until September 2012." Specifically,

SDG&E allowed him to use his coworker's bathroom and did not transfer him in 2011.

However, Goncalves claimed that beginning in September 2012, SDG&E stopped

accommodating him based on its pretextual claim of stacking. He argued he had

presented a material issue of disputed fact to defeat summary adjudication of his

disability discrimination claim because a jury could conclude his "supervisors knew

Goncalves was not entering correct information about the time spent 'en route' into his

MDT. The deducible inference reasonably permitted from this evidence was the

supervisors allowed this because they knew [he] was not doing this to avoid work or to

attend to personal matters and get paid for it" but rather he did it due to his physical

disability.

       Goncalves claimed his supervisors knew about his medical condition and a jury

could conclude that he "was requesting SDG&E to allow him a minimum of three to five

                                              7
minutes or more for using a bathroom up to ten times in a day, a minimum of fifty

minutes of company time. Thus a jury could reasonably infer two things from this

evidence—Goncalves requested SDG&E to make reasonable accommodations for him so

he could perform his essential job duties, and/or SDG&E had an affirmative duty to

provide reasonable accommodations."

       Goncalves claimed SDG&E wrongfully terminated him in violation of public

policy, because he complained the GMI's "did not work properly and, after nearly five

years of SDG&E working with the manufactures to solve the defects, SDG&E finally, in

2013, replaced the defective tool. [¶] Also undisputed is the fact Goncalves was the

loudest complainer about the defective GMI tool, raising it once a month between 2007

and when he was terminated in September 2012. His response from SDG&E

management was 'we'll get the bugs worked out.' The other response from [a supervisor]

was an eye roll and [him] telling Goncalves 'you're just saying the same thing again.' "

The Trial Court's Ruling3

       The court concluded SDG&E had shown it had a legitimate business reason for

terminating Goncalves in light of his admission he had stacked orders. Moreover, the

evidence showed he did so even when he was not using the bathroom. The court found

Goncalves had failed to show SDG&E's reasoning was pretextual, pointing out that

following Goncalves's surgery, his doctor had released him to work without any


3     Despite its finding Goncalves's opposition to the summary judgment motion was
untimely filed and his separate statement violated Code of Civil Procedure section 437c,
subdivision (b)(3) and the California Rules of Court, rule 3.1300(d), the court ruled on
the motion's merits.
                                             8
restrictions, and Goncalves had not requested any medical accommodations. The court

summarily adjudicated the disability discrimination cause of action in SDG&E's favor.

       In light of that ruling, the court found that Goncalves's derivative causes of action

for failure to prevent discrimination and wrongful termination also lacked merit. The

court also summarily adjudicated the retaliation cause of action against Goncalves,

concluding he was not a whistle blower, and pointing out that other technicians, none of

whom SDG&E fired, had also widely reported the GMI's defects to SDG&E

management. The court also pointed out that at least five years had elapsed between

Goncalves's first complaints regarding the GMI's and his termination, negating any

inference of a causal relationship between the two events. The court concluded

Goncalves had abandoned his punitive damages claim by failing to meaningfully address

it in his opposition papers. Nonetheless, it denied the claim on the merits, ruling that he

had "failed to create triable issues of material fact, by clear and convincing evidence, that

[SDG&E] engaged in oppressive, fraudulent, or malicious conduct."

                                STANDARD OF REVIEW

       We review an order granting summary judgment de novo, "considering all the

evidence set forth in the moving and opposition papers except that to which objections

have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,

334 (Guz).) A defendant moving for summary judgment must show "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).) "In performing

our de novo review, we must view the evidence in a light favorable to plaintiff as the

                                              9
losing party [citation], liberally construing [his or] her evidentiary submission while

strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or

ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763,

768.) We accept as true both the facts shown by the losing party's evidence and

reasonable inferences from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 856; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138,

148.)

        Summary judgment is appropriate only when "all the papers submitted show that

there is no triable issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A triable issue of

material fact exists if the evidence and inferences therefrom would allow a reasonable

juror to find the underlying fact in favor of the party opposing summary judgment.

(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850, 856.)

                                       DISCUSSION

 I. The Court Did Not Err by Summarily Adjudicating the Medical Condition/Disability

                                    Discrimination Claim

        In employment discrimination cases, the California Supreme Court has adopted

the three-stage burden-shifting test established by McDonnell Douglas Corp. v. Green

(1973) 411 U.S. 792 (McDonnell Douglas). As explained in Guz, supra, 24 Cal.4th 317,

a plaintiff has the initial burden to make a prima facie case of discrimination by showing

that it is more likely than not that the employer has taken an adverse employment action

based on a prohibited criterion. A prima facie case establishes a presumption of

                                              10
discrimination. The employer may rebut the presumption by producing evidence that its

action was taken for a legitimate, nondiscriminatory reason. If the employer discharges

this burden, the presumption of discrimination disappears. The plaintiff must then show

that the employer's proffered nondiscriminatory reason was actually a pretext for

discrimination, and the plaintiff may offer any other evidence of discriminatory motive.

The ultimate burden of persuasion on the issue of discrimination remains with the

plaintiff. (See id. at pp. 354-356.)

       SDG&E, as the party moving for summary judgment, bears the initial burden of

demonstrating that at least one of the elements of plaintiff's employment discrimination

claim is without merit. (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510,

1518-1519 (Scalf).) We disagree with Goncalves that SDG&E failed to offer any

evidence to sustain its burden of proof. The trial court found SDG&E had fired him for a

legitimate reason—he breached the company's policy regarding stacking. The evidence

described at length above satisfies the employer's burden to make a " 'sufficient showing

of a legitimate reason for discharge.' " (Hanson v. Lucky Stores, Inc. (1999) 74

Cal.App.4th 215, 225 (Hanson).) We conclude that based on SDG&E's evidence, the

decision makers entertained an honest belief that Goncalves had engaged in stacking

orders, thus violating SDG&E's policy.

       Once an employer satisfies its initial burden of proving the legitimacy of its reason

for termination, the presumption of discrimination disappears. (Guz, supra, 24 Cal.4th at

p. 356.) The discharged employee seeking to avert summary judgment must present

specific and substantial responsive evidence that the employer's evidence was in fact

                                            11
insufficient or that there is a triable issue of fact material to the employer's motive.

(Hanson, supra, 74 Cal.App.4th at p. 225.) In other words, Goncalves must produce

substantial responsive evidence to show that SDG&E's ostensible motive was pretextual;

that is, "that a discriminatory reason more likely motivated the employer or that the

employer's explanation is unworthy of credence." (Chiaramonte v. Fashion Bed Group,

Inc. (7th Cir.1997) 129 F.3d 391, 398 (Chiaramonte).)

       While we must liberally construe plaintiff's showing and resolve any doubts about

the propriety of a summary judgment in plaintiff's favor, plaintiff's evidence remains

subject to careful scrutiny. (Scalf, supra, 128 Cal.App.4th at pp. 1518-1519.) We can

find a triable issue of material fact "if, and only if, the evidence would allow a reasonable

trier of fact to find the underlying fact in favor of the party opposing the motion in

accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co.,

supra, 25 Cal.4th 826.) Moreover, plaintiff's subjective beliefs in an employment

discrimination case do not create a genuine issue of fact; nor do uncorroborated and

self-serving declarations. (Chiaramonte, supra, 129 F.3d at p. 401; Villiarimo v. Aloha

Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1061.) And finally, plaintiff's evidence

must relate to the motivation of the decision makers to prove, by nonspeculative

evidence, an actual causal link between prohibited motivation and termination. (Saelzler

v. Advanced Group 400, supra, 25 Cal.4th at p. 774.)

       On appeal, Goncalves does not meet his burden of showing SDG&E's reasons for

terminating him were pretextual. He repeats many of the same objections raised in his

motion, and insists SDG&E knew he was disabled but discriminated against him.

                                              12
SDG&E rejoins that it "has never denied Goncalves had cancer, or that it was aware of

this unfortunate fact. SDG&E has consistently acknowledged these facts and cited to this

awareness and its undisputed accommodation efforts as evidence negating any rational

inference of intentional discrimination."

       By Goncalves's own admission, SDG&E accommodated him for over three years

after his surgery, including by allowing him the convenience of using a coworker's

bathroom and not transferring him in order for him to continue benefitting from that

bathroom arrangement. Goncalves also claims SDG&E had to have known that

following his surgery he was not correctly recording his bathroom use on the MDT;

therefore, he intimates, SDG&E permitted this. But SDG&E's failure to monitor his

bathroom use previously did not relieve him of his responsibility to accurately document

his activities on the MDT consistent with SDG&E's policies.

       Goncalves also claims that his use of an incorrect MDT code while he was using

the bathroom was not stacking or a violation of SDG&E's prohibition against "falsifying

company records" "unless the service technician was trying to avoid work or to be paid

while attending to personal matters or not taking on new job orders." But SDG&E's

policy against falsifying records contains no such qualification. Goncalves further

contends only the 2012-2013 version of SDG&E's Code of Business Conduct makes a

reference to falsification of records, and it appears in the form of a question and answer,

and therefore he claims SDG&E did not present evidence that "stacking orders violated a

settled company policy or is an offense that automatically results in termination." We

conclude that it is immaterial that the policy statement is included in a question and

                                             13
answer format. What matters is that SDG&E had a written policy against falsifying

company records, and Goncalves admitted he violated that policy.

       We conclude that in light of the approximately four-year gap between Goncalves's

return to work from surgery without restrictions (during which time SDG&E

accommodated him) and his termination, Goncalves's speculation that SDG&E's reasons

for terminating him were pretextual does not suffice to create a material issue of fact.

Therefore, the presumption that SDG&E discriminated against Goncalves disappears.

(Guz, supra, 24 Cal.4th at p. 356.)

    II. Goncalves Did Not Show SDG&E Failed to Engage in the Interactive Process

       Goncalves contends SDG&E failed to accommodate him, in part claiming "[n]o

request for a reasonable accommodation needs to be made when the employer is aware of

an employee's physical disability or medical condition."

       Having concluded Goncalves failed to show SDG&E's explanation for his

termination was pretextual, we further conclude that Goncalves's failure to accommodate

claim necessarily fails. It bears repeating that the issue here is falsifying records, not

discrimination. Further, as in Scotch v. Art Institute of California (2009) 173 Cal.App.4th

986, 1013-1014, SDG&E had no duty to provide accommodation when the doctor

released Goncalves to work with no restrictions and he requested no accommodation.

       "[T]he interactive process of fashioning an appropriate accommodation lies

primarily with the employee." (Spitzer v. Good Guys, Inc. (2001) 80 Cal.App.4th 1376,

1384.) An employee cannot demand clairvoyance of his employer. (Conneen v. MBNA

America Bank, N.A. (3d Cir.2003) 334 F.3d 318, 331 (Conneen).) " '[T]he employee

                                              14
can't expect the employer to read his mind and know he secretly wanted a particular

accommodation and sue the employer for not providing it. Nor is an employer ordinarily

liable for failing to accommodate a disability of which it had no knowledge.' " (Prilliman

v. United Airlines, Inc.(1997) 53 Cal.App.4th 935, 954.) "It is an employee's

responsibility to understand his or her own physical or mental condition well enough to

present the employer at the earliest opportunity with a concise list of restrictions which

must be met to accommodate the employee." (Jensen v. Wells Fargo Bank (2000) 85

Cal.App.4th 245, 266.) Plaintiff therefore was obliged "to tender a specific request for a

necessary accommodation." (Spitzer, supra, 80 Cal.App.4th at p. 1384.)

       The undisputed evidence shows that Goncalves did not make a specific request for

necessary accommodation. Rather, the doctor specifically released him to work with no

restrictions. While Goncalves describes in painful detail why he needed to use the

bathroom more frequently, he also indicates that SDG&E accommodated him by

allowing him to use a bathroom at a coworker's home rather than use a public bathroom.

Beyond that, he simply does not establish that he made the kind of specific request for a

modified work schedule required to trigger an employer's duty to provide

accommodation. We recognize that the interactive process compelled by FEHA requires

flexibility by both the employer and employee, and that no magic words are required to

necessitate accommodation. But Goncalves has presented far less than what FEHA

demands. We conclude he has not sustained his burden of demonstrating a genuine issue

of material fact. It was incumbent upon him to produce clear and unambiguous doctor's

orders specifying his need for further accommodation for his medical condition.

                                             15
      III. The Court Did Not Err by Summarily Adjudicating the Failure to Prevent

                                   Discrimination Claim

       Given our conclusion that Goncalves is not entitled to maintain a disability

discrimination cause of action, it necessarily follows he has not shown he is entitled to

maintain a failure to prevent disability discrimination claim. As this court pointed out in

a case where the trial court issued a judgment notwithstanding the verdict: " 'There's no

logic that says an employee who has not been discriminated against can sue an employer

for not preventing discrimination that didn't happen, for not having a policy to prevent

discrimination when no discrimination occurred.' " (Trujillo v. North County Transit

Dist. (1998) 63 Cal.App.4th 280, 289.)

          IV. The Court Did Not Err by Summarily Adjudicating the Wrongful

                               Discharge/Retaliation Claim

       The elements of a claim for wrongful discharge in violation of public policy are

(1) an employer-employee relationship, (2) the employer terminated the plaintiff's

employment, (3) the termination was substantially motivated by a violation of public

policy, and (4) the discharge caused the plaintiff harm. (Haney v. Aramark Uniform

Services, Inc. (2004) 121 Cal.App.4th 623, 641 (Haney).) At issue here is whether

Goncalves can show a triable issue of fact for a jury on the third element—that the

substantial motivation for his termination violates a public policy.

       The general legal principles governing this wrongful termination claim are set

forth in Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127,

(Casella): " '[W]hile an at-will employee may be terminated for no reason, or for an

                                             16
arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or

a purpose that contravenes fundamental public policy. Any other conclusion would

sanction lawlessness, which courts by their very nature are bound to oppose.' [Citation.]

In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172 . . . , the California

Supreme Court held that 'at-will employees may recover tort damages from their

employers if they can show they were discharged in contravention of fundamental public

policy.' " (Casella, supra, 157 Cal.App.4th at pp. 1138-1139.)

       "In Gantt v. Sentry Insurance [(1992)] 1 Cal.4th 1083, [overruled on another point

in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6,] the Supreme Court

described 'four categories of employee conduct subject to protection under a claim of

wrongful discharge in violation of fundamental public policy: "(1) refusing to violate a

statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a

statutory right or privilege [citation]; and (4) reporting an alleged violation of a statute of

public importance [citations]." ' [Citation.] The Supreme Court cautioned that 'courts in

wrongful discharge actions may not declare public policy without a basis in either

constitutional or statutory provisions. A public policy exception carefully tethered to

fundamental policies that are delineated in constitutional or statutory provisions strikes

the proper balance among the interests of employers, employees and the public.' "

(Casella, supra, 157 Cal.App.4th at p. 1139.)

       To establish a claim for wrongful termination in violation of public policy, an

employee must prove causation. (See CACI No. 2430 [using phrase "substantial

motivating reason" to express causation].) Claims of whistleblower harassment and

                                              17
retaliatory termination may not succeed where a plaintiff "cannot demonstrate the

required nexus between his reporting of alleged statutory violations and his allegedly

adverse treatment by [the employer]." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th

1238, 1258.)

       Here, in light of the fact Goncalves failed to rebut SDG&E's evidence that the

reason for its terminating him was his falsifying records, that reason stands. Goncalves

has similarly failed to show that the problems with the GMI were a separate cause of his

termination. Indeed, Goncalves claims that beginning in 2006, SDG&E started requiring

Goncalves and the other service technicians to use the GMI, and he complained about it

continuously from 2007 to 2012. But he was not terminated until September 2012,

making his complaints sufficiently remote from his termination as to preclude, as a matter

of law, a finding of causation by a trier of fact. (Accord, Fisher v. San Pedro Peninsula

Hospital (1989) 214 Cal.App.3d 590, 615 [ruling regarding a retaliation claim brought

under FEHA: " 'The causal link may be established by an inference derived from

circumstantial evidence, "such as the employer's knowledge that the [employee] engaged

in protected activities and the proximity in time between the protected action and

allegedly retaliatory employment decision." ' "].)4




4      In his complaint, Goncalves's retaliation claim incorporates by reference a FEHA
claim: "The conduct by the defendants was done with malice or oppression in conscious
disregard of Goncalves's rights under FEHA and violated the public policy of California."

                                            18
         V. Goncalves is Not Entitled to Maintain a Claim for Punitive Damages

       In his opposition to the summary judgment motion, Goncalves argued in a

footnote, "The punitive damages motion rehashes the other parts. If Goncalves' evidence

is credited by a jury, a finding of malice, oppression or fraud, normally a jury question, is

possible." On appeal he argues, "If this court finds [he] raised triable issues of fact that

preclude summary judgment on his four remaining causes of action, it follows he has

raised triable issues of fact on his punitive damages claim." In light of our conclusion he

has failed to show SDG&E was not entitled to summary judgment, it follows he cannot

maintain a claim for punitive damages.5




5       Goncalves contends the trial court should have sustained his objections and
disregarded SDG&E's 283-page reply statement, which violated California Rules of
Court, rule 3.1350(b) and Code of Civil Procedure, section 437c, subdivision (a). But we
conclude SDG&E complied with California Rules of Court, rule 3.1350 (b), which
permits a reply separate statement to refer to objections, provided the reply statement is
filed separately from the other summary judgment papers.
        Goncalves also contends that the court failed to rule on his objection to
"additional" evidence, in the form of deposition testimony, that SDG&E submitted in its
reply papers. SDG&E's unrebutted explanation of this matter states that after SDG&E
filed its summary judgment motion, Goncalves deposed some SDG&E employees many
months before the March 20, 2015 hearing date, and well outside the minimum 75-day
notice period. "Goncalves repeatedly cited to these depositions in his opposition papers
and separate statement, but he selectively edited them. . . . Accordingly, these
depositions were newly brought into the opposition papers but not on the reply, wherein
SDG&E simply responded to Goncalves's opposition evidence and cited to additional
excerpts to put Goncalves's excerpts from these very same depositions into context." In
light of the fact Goncalves first introduced these matters into evidence, we conclude that
he cannot be heard to complain when SDG&E moved to admit the full excerpts of the
depositions in its reply. Any evidentiary error was harmless. (See Shaw v. County of
Santa Cruz (2008) 170 Cal.App.4th 229, 280; 282.)
                                              19
                                   DISPOSITION

      The judgment is affirmed. San Diego Gas & Electric Company is entitled to costs

on appeal.




                                                                       O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


HUFFMAN, J.




                                         20
