Filed 1/27/16 Tigner v. Calif. Dept. of Corrections and Rehabilitation CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



LULA HEIGHT TIGNER,                                                 D068509

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. RIC534514)

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Riverside County, Daniel A.

Ottolia, Judge. Affirmed.

         Law Offices of Leo James Terrell and Leo James Terrell for Plaintiff and

Appellant.

         Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Chris A. Knudsen and

Patti W. Ranger, Deputy Attorneys General, for Defendant and Respondent.

         Plaintiff Lula Height Tigner appeals a judgment in favor of her employer, the

California Department of Corrections and Rehabilitation (CDCR). Tigner contends the

trial court erred by granting CDCR's motion for summary adjudication on Tigner's claims
for retaliation in violation of the federal Family and Medical Leave Act (FMLA;

29 U.S.C. § 2601 et seq.) and the California Family Rights Act (CFRA; Gov. Code,

§ 12945.1 et seq.). Tigner argues (1) the court erred by not striking CDCR's separate

statement of undisputed material facts for failure to comply with the California Rules of

Court and (2) triable issues of material fact precluded summary adjudication of her

retaliation claims. We disagree and affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Tigner's operative third amended complaint (TAC) alleged the following facts:

Tigner was employed by CDCR as an office technician. She received a promotion in

September 2007. After discussing the promotion and a related transfer with her

immediate supervisor, the supervisor accused Tigner of being disloyal. The supervisor

punished Tigner by changing her work hours in violation of CDCR policy. During this

discussion, and subsequent meetings with management, Tigner attempted to enlist aid

from her union. However, Tigner's supervisor and other managers instructed her not to

contact her union and threatened retaliation if she did so. When Tigner nonetheless

contacted her union and attempted to file a grievance, her supervisor and other managers

retaliated by (1) rescinding Tigner's promotion and related transfer and (2) removing

Tigner from her workplace and transferring her in violation of CDCR policy.

Approximately a year later, in October 2008, Tigner told her new supervisor she needed

time off to care for her mother, who was in the hospital. Tigner received authorization

and took the time off work. Tigner's supervisor later changed his mind about the

authorization and accused Tigner of being absent without leave (AWOL) during her time

                                              2
off. A month after that, in November 2008, Tigner again took time off to care for her

mother. Tigner was told that she did not correctly request time off under the FMLA, and

her pay was withheld for those days. As a result of these absences, Tigner was suspended

from work for 48 days.

       Based on these allegations, the TAC set forth six causes of action: (1) violation of

Tigner's civil rights under title 42 United States Code section 1983 by depriving her of

her right to associate with her union; (2) violation of Tigner's civil rights under title 42

United States Code section 1983 by retaliating against her for union activities; (3)

violation of the FMLA by not allowing Tigner to take leave to care for her mother in

October and November 2008; (4) violation of the FMLA by retaliating against Tigner for

taking leave to care for her mother; (5) violation of the CFRA by not allowing Tigner to

take leave to care for her mother in October and November 2008; and (6) violation of the

CFRA by retaliating against Tigner for taking leave to care for her mother. In pretrial

proceedings, the court dismissed Tigner's two causes of action under title 42 United

States Code section 1983.

       CDCR moved for summary judgment or, in the alternative, summary adjudication

on Tigner's remaining causes of action. As to Tigner's claims of retaliation, CDCR

argued that it had legitimate, nondiscriminatory reasons to impose a 48-day suspension

on Tigner, including Tigner's insubordination, discourtesy, inappropriate behavior in

front of prison inmates, and AWOLs. In support of its motion, CDCR filed a separate

statement of undisputed material facts. The separate statement listed two issues: first,

"the third and fifth causes of action for violation of Family Medical Leave Act rights and

                                               3
California Family Rights Acts [sic] are without merit," and second, "the fourth and sixth

causes of action for retaliation in violation of Family Medical Leave Act rights and

California Family Rights Acts [sic] are without merit."

       CDCR included in its separate statement two facts related to an earlier FMLA

request Tigner submitted in February or March 2007. The first fact stated, "Around

February or March 2007, Tigner submitted a request to take leave under the [FMLA] and

[CFRA] for the period of February 20, 2007 to February 19, 2008, to care for her ailing

father." The second fact stated, "Tigner knew how to properly request FMLA leave time

off at CRC[1]. For her 2007 FMLA request, Tigner correctly followed CRC procedure to

make the request, using CRC's standard authorized Request Packet. On or about

February 2007, Tigner signed acknowledgement of receipt the notice of rights [sic]. The

standard Certification of Health Care Provider form contained the required information

and certifications and was signed by the doctor. [¶] This FMLA of Tigner's request [sic]

was properly approved by all necessary levels of CRC administration." CDCR's motion

relied on these facts to show that Tigner knew the procedure for requesting FMLA and

CFRA leave and that her failure to follow the procedure for her later 2008 requests to

care for her mother should not be excused.

       Tigner opposed CDCR's motion, contending that triable issues of fact precluded

summary judgment or summary adjudication of her claims. Tigner argued that CDCR

"violated the FMLA/CFRA by not allowing [Tigner] to take a few days off from work to


1      CRC refers to the California Rehabilitation Center, a state prison in Norco,
California where Tigner worked.
                                             4
tend to her ailing mother in October 2008 and again in November 2008. [¶] . . . [¶]

Furthermore, [CDCR] retaliated against [Tigner] in violation of the FMLA/CFRA by

suspending her for 48 days because she took time off to tend to her ailing mother, which

was a qualified absence under the FMLA." Tigner also offered arguments in support of

her previously dismissed claims under title 42 United States Code section 1983.

       Tigner objected to the format of CDCR's separate statement. She argued that it

did not comply with the California Rules of Court, rule 3.1350(d),2 because it did not list

issues under the FMLA and CFRA separately. Tigner claimed the two statutes were

separate and distinct and should therefore be discussed separately.

       In her response to CDCR's separate statement, Tigner disputed the two facts

related to her 2007 request for FMLA leave to care for her father. Tigner argued the facts

were incomplete and not supported by the cited evidence. As to both facts Tigner also

stated, "The alleged uncontested fact is irrelevant. The Plaintiff's Complaint alleges

causes of action that the Defendant denied her rights and privileges under the FMLA and

CFRA for Plaintiff's requests made from November 2008 forward; subsequent to the

Plaintiff's request for union representation."

       After oral argument, the trial court granted summary adjudication in favor of the

CDCR on Tigner's causes of action for retaliation under the FMLA and CFRA. The

court wrote, "The Court finds that [CDCR] has offered a legitimate no[n]retaliatory

reason for the adverse employment action. But [Tigner] has failed to meet its burden of



2      Further rule references are to the California Rules of Court.
                                                 5
showing that the [proffered] reason was pretextual. [Tigner] has not put forward specific

and substantial evidence challenging the credibility of the employer's motives. [Citation.]

[Tigner] does not demonstrate that pretext applies to her CFRA and FMLA requests for

leave."

          The court denied summary adjudication on Tigner's causes of action for

substantive violations of the FMLA and CFRA. The court held a jury trial on those

causes of action, and the jury returned a verdict in favor of the CDCR. The court entered

judgment accordingly, and Tigner appeals.3

                                         DISCUSSION

                                                I

          Tigner first contends the court erred by not striking CDCR's separate statement

under rule 3.1350(d) because the separate statement combined, as one issue, Tigner's

causes of action for FMLA retaliation and CFRA retaliation. The rule provides, in

relevant part, as follows: "The Separate Statement of Undisputed Material Facts in

support of a motion must separately identify (A) each cause of action, claim for damages,

issue of duty, or affirmative defense that is the subject of the motion; and (B) each

supporting material fact claimed to be without dispute with respect to the cause of action,

claim for damages, issue of duty, or affirmative defense . . . ." (Rule 3.1350(d).) We

review the court's decision whether to strike a party's separate statement for abuse of

discretion. (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 118; Parkview Villas



3         Tigner does not challenge the jury verdict in this appeal.
                                                6
Association, Inc. v. State Farm Fire & Casualty Insurance Co. (2005) 133 Cal.App.4th

1197, 1208.)

       Tigner has not shown any abuse of discretion here. The relevant standards for

Tigner's retaliation claims under the FMLA and the CFRA were substantively identical,

as were the undisputed material facts that CDCR argued defeated each claim. (See

Moreau v. Air France (9th Cir. 2004) 356 F.3d 942, 945, fn. 1.) Tigner has provided no

evidence its opposition or the court's consideration of CDCR's motion was made more

difficult by the format of CDCR's separate statement. (See Truong v. Glasser, supra, 181

Cal.App.4th at p. 118 ["The facts critical to the ruling were adequately identified, and

Plaintiffs have not explained how any alleged deficiency in [defendant's] separate

statement of material facts impaired Plaintiffs' ability to marshal evidence to show that

material facts were in dispute . . . ."].)

       Tigner also claims CDCR's separate statement was improper because one of its

facts incorporated the 36 facts that preceded it. While internal references may be so

convoluted as to defeat the purpose of the separate statement (see, e.g., Collins v. Hertz

(2006) 144 Cal.App.4th 64, 72), Tigner has not shown the incorporation here impeded

her or the court's understanding of CDCR's motion or the undisputed facts on which it

was based. The court did not abuse its discretion by considering the substance of

CDCR's separate statement.

                                             II

       On the merits, Tigner contends the court erred by granting summary adjudication

on her FMLA and CFRA retaliation claims. Tigner claims the record shows triable

                                             7
issues of material fact that CDCR retaliated against Tigner for requesting FMLA and

CFRA leave to care for her father in 2007. CDCR responds that such a claim was not

framed by the pleadings (or pursued in the trial court) and therefore cannot provide

grounds for reversal. For reasons we will explain, we agree with the CDCR.

          " 'The pleadings delimit the issues to be considered on a motion for summary

judgment. [Citation.]' [Citation.] Thus, a 'defendant moving for summary judgment

need address only the issues raised by the complaint; the plaintiff cannot bring up new,

unpleaded issues in her or her opposing papers.' [Citation.] 'To create a triable issue of

material fact, the opposition evidence must be directed to issues raised by the pleadings.

[Citation.] If the opposing party's evidence would show some factual assertion, legal

theory, defense or claim not yet pleaded, that party should seek leave to amend the

pleadings before the hearing on the summary judgment motion. [Citations.]' [Citation.]"

(Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.)

          Tigner's operative complaint, the TAC, cannot reasonably be interpreted to allege

retaliation based on Tigner's 2007 leave request to care for her father. Tigner's TAC does

not mention the 2007 leave request. In each cause of action for retaliation, Tigner

alleged, "Each Defendant retaliated against Plaintiff in violation of the FMLA [or CFRA]

by suspending her for 48 days because she took time off to tend to her ailing mother,

which was a qualified absence under the FMLA [or CFRA]." Tigner's causes of action

therefore rested on her October and November 2008 leave requests to care for her

mother, rather than her February 2007 request (through February 2008) to care for her

father.

                                               8
       Tigner's separate statement in opposition to CDCR's motion confirms this

interpretation of Tigner's TAC. In response to CDCR's two facts related to the 2007

request, Tigner explicitly denied that her causes of action rested on that request. Tigner

stated, "The alleged uncontested fact is irrelevant. The Plaintiff's Complaint alleges

causes of action that the Defendant denied her rights and privileges under the FMLA and

CFRA for Plaintiff's requests made from November 2008 forward; subsequent to the

Plaintiff's request for union representation."

       Because Tigner's pleading did not raise any issue of retaliation related to her

February 2007 request to care for her father, CDCR was not required to address that issue

in its motion. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1253.) Tigner

has shown no error in the trial court's order granting summary adjudication.

       Tigner also may not challenge the trial court's order by raising the issue of her

February 2007 request for the first time on appeal. "The rule which forbids raising a new

issue for the first time on appeal takes on added significance in summary judgment

proceedings because '[t]he moving party's burden on a motion for summary judgment is

only to "negate the existence of triable issues of fact in a fashion that [entitles] it to

judgment on the issues raised by the pleadings. [Citation.] It [is] not required to refute

liability on some theoretical possibility not included in the pleadings." [Citation.]'

[Citation.] Accordingly, it would be unfair to a party who successfully moved for

summary judgment to permit the opposing party on appeal to raise a new theory not

included in the pleadings." (Munro v. Regents of the University of California (1989) 215

Cal.App.3d 977, 989; see Jordan-Lyon Productions, Ltd. v. Cineplex Odeon Corp. (1994)

                                                 9
29 Cal.App.4th 1459, 1472.)4 In light of this rule, we decline to consider whether a

triable issue of fact exists on the current record regarding any claimed retaliation based

on Tigner's February 2007 request for FMLA and CFRA leave.

                                      DISPOSITION

       The judgment is affirmed. Each party is to bear its own costs on appeal.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:


                        NARES, J.


                  McDONALD, J.




4      Although a defendant moving for summary judgment (or summary adjudication) is
no longer required to "conclusively negate an element of the plaintiff's cause of action"
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853), this change in the
substance of law governing summary judgment and summary adjudication does not affect
the rule that a plaintiff challenging summary judgment or summary adjudication on
appeal may not raise a new issue not framed by the pleadings or pursued in the trial court.
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