CHARLENE ANDERSSON, Plaintiff and Appellant, v. NEWHALL SCHOOL DISTRICT et al., Defendants and Respondents.
B315894
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
August 4, 2023
Los Angeles County Super. Ct. No. 18STCV07659
[No change in judgment]
BY THE COURT:*
It is ordered that the petition for rehearing filed July 31, 2023, is denied and the opinion filed July 18, 2023, is modified as set forth below. There is no change in the judgment.
On page 29, first full paragraph, delete the following:
On appeal, Andersson attempts to argue that the District‘s act of placing her on administrative leave was also an adverse employment action. However, that ground was not alleged in the pleadings and thus may not be relied upon to oppose summary judgment. (See California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3 [“[a] party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings,” and “[e]vidence offered on an unpleaded
claim, theory, or defense is irrelevant because it is outside the scope of the pleadings”].)
Replace the deleted portion with the following:
In her reply brief, Andersson attempts to argue that the District‘s act of placing her on administrative leave was also an adverse employment action. However, this contention is conclusory and not developed in her briefing. Regardless, it is undisputed that Morse‘s understanding was that B.U.‘s file had not arrived from the other school district or had been misplaced at the time Andersson was placed on administrative leave. Andersson concedes in her opening brief that Morse‘s “understanding of the situation did not change until after Andersson filed her complaint with the CDE in April 2018.” Thus, the undisputed evidence would not permit a trier of fact to infer that the District placed Andersson on administrative leave in retaliation for the disclosure of Sorenson-Howe‘s intentional concealment of B.U.‘s IEP, of which Morse was not aware.
*EDMON, P. J. LAVIN, J. HEIDEL, J.1
CHARLENE ANDERSSON, Plaintiff and Appellant, v. NEWHALL SCHOOL DISTRICT et al., Defendants and Respondents.
B315894
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
July 18, 2023
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. 18STCV07659
Arthur Kim Law Firm and Arthur Kim for Plaintiff and Appellant.
McCune & Harber, Stephen M. Harber, and Amy A. Evenstad for Defendants and Respondents.
Plaintiff Charlene Andersson, a teacher, appeals following the grant of summary judgment in favor of her employer, Newhall School District (the District), her former principal, Kim Sorenson-Howe, and the former Assistant Superintendent of Human Resources with the District, Michelle Morse (together, defendants). Andersson‘s complaint alleged that the defendants gave her a notice of unsatisfactory performance and negative performance review in retaliation for her disclosure that Sorenson-Howe concealed that a student who transferred to the District had an Individualized Educational Plan (IEP) from his prior school district and delayed the student‘s access to services for several weeks. Andersson brought causes of action for retaliation under
The court granted summary adjudication of Andersson‘s
FACTS AND PROCEDURAL BACKGROUND
1. Factual Background
Andersson has been a teacher with the District for over 25 years. During the relevant period, Andersson was a fifth grade teacher at Meadows Elementary School (Meadows), Sorenson-Howe was the principal at Meadows, and Morse was the Assistant Superintendent of Human Resources with the District.
1.1. Concerns about Andersson‘s Conduct Raised to or by Sorenson-Howe Between 2016 and Early 2017
In October 2016, the parent of a child in Andersson‘s classroom, L.S., informed Sorenson-Howe that L.S. was so afraid of Andersson that the child wet himself rather than asking her for permission to use the restroom. His mother also reported that she was afraid of Andersson. L.S. was removed from Andersson‘s class.
In July 2017, the parents of a student, V.F., asked that V.F. not be placed in Andersson‘s class because V.F.‘s sister had been in Andersson‘s class and “had such a negative experience [they] had to have her moved to another class.”
In September 2017, Sorenson-Howe received an email from the parents of M.E. regarding their “extremely serious issues” with Andersson‘s treatment of their daughter. According to
Sorenson-Howe forwarded the email to Morse several days later. In it, she stated that when she entered the District the prior year, she had been told that Andersson “has a personnel/HR file that is thick,” but that she “ha[d] not experienced anything with this teacher that has been too alarming over the past year” and that Andersson typically corrects a situation immediately after Sorenson-Howe addressed it with her. Sorenson-Howe testified that she had “extensive conversations” with Andersson regarding M.E. and concluded that Andersson “had not intentionally done anything wrong” and that M.E. could remain in her class with appropriate support and coaching, although Sorenson-Howe “still had wonderings.” Several weeks later, M.E.‘s father emailed Sorenson-Howe stating that M.E. was enjoying school again. However, he also requested that a further meeting be set up with Andersson and Sorenson-Howe “to facilitate positive communication between us all, and to discuss any lingering issues.”
In December 2017, Andersson missed three and a half days of school to go to Paris, France but did not obtain permission from the District to take that time off in advance. Andersson testified
1.2. The Discovery of B.U.‘s IEP
At the beginning of the 2017–2018 school year, a student named B.U. was assigned to Andersson‘s classroom. B.U. had transferred from another school district. In September or October 2017,1 B.U.‘s parents asked Andersson why he had not been pulled out of class for services as he had been in the past. Andersson arranged a meeting with the parents and with Sorenson-Howe. After speaking with the parents, Andersson and Sorenson-Howe went to the main office to look for documentation concerning services for B.U. They located the cumulative file from the other district in the office manager‘s office. The file was in a folder with a stamp indicating that it had been received by the school district in August 2017. Andersson and Sorenson-Howe looked at the folder and saw that the child was autistic and had an IEP in place. Sorenson-Howe told Andersson that they should tell the parents that the IEPs had not yet arrived from the other district.2 Andersson asked, “How can we say that?” and “How
Andersson testified that she did not know whether anyone was in the office at the time they located the file. According to Sorenson-Howe, the assistant principal, Janette Van Gelderen, and two other employees were also present in the office, assisted in the search for the file, and were there when it was located. After the meeting with B.U.‘s parents concluded, Sorenson-Howe returned to the office and asked one of the office employees how this could have happened. After she read the IEP, Sorenson-Howe followed up with the office manager and told her they need to develop a system so that every cumulative file that came in would be reviewed before filing. Van Gelderen also participated in developing this system.
On October 9, 2017, Sorenson-Howe sent an email to the special education team stating that she had put B.U.‘s folder in the mailbox of one of the team members. She further stated: “At first glance, this student has an IEP that dictates both RSP and Speech services with an eligibility of Autism. The accommodations that are included in the IEP have been happening since for [sic] the first day of school, thanks to Charlene‘s consistent effort to meet the student‘s needs. [¶] Obviously, we need to schedule a 30 day IEP ASAP to ensure that the services outlined in his IEP accurately reflect his current needs. In the meantime, please resume sped. services immediately.” On October 23, 2017, an IEP meeting was held for B.U.
On or about January 22, 2018, Andersson had a meeting with Morse. Andersson‘s significant other also participated via conference call. They discussed B.U. and Andersson told Morse that, after discovering B.U.‘s cumulative file, Sorenson-Howe further delayed services for several weeks while pretending that the file had not arrived from the other district. Andersson did not remember whether Morse expressed surprise when she was informed of B.U. but stated that Morse “made a comment that the file was not misplaced, it didn‘t arrive from Burbank.”
Another meeting between Morse and Andersson took place on February 8, 2018. This meeting was also attended by two union representatives. One of the representatives took notes, which indicate that there was discussion regarding B.U: “[Michelle Morse]: Was there clarification about a student w/ a former AP [¶] Autistic student [—] file never received for 5 weeks.” Morse testified that she recalled the question of B.U. coming up at the February meeting with the union representatives. She did not recall the specifics but stated: “The knowledge I had at the time was that it had arrived late because he had come in from another school district.”
1.4. Additional Concerns about Andersson‘s Conduct Raised to Sorenson-Howe in January and February 2018
On January 23, 2018, the mother of M.S., a student in Andersson‘s classroom, spoke with Van Gelderen. Van Gelderen‘s notes on the call indicate that M.S. felt “miserable” and “targeted” in Andersson‘s class. In her email to Van Gelderen after they spoke, M.S.‘s mother expressed surprise that
On February 2, 2018, Sorenson-Howe had a meeting with Ms. Davis, who was the room mother for Andersson‘s class for the 2017–2018 school year. She stated that her son, G.B., reported that Andersson did not treat students the same when another adult was in the room. She also reported that G.B., who has asthma, felt targeted for coughing and sniffling and had been sent to the health office 11 times since the start of the school year. She stated that she and other parents were upset about Andersson being absent the last week of school in December as they had spent time arranging a holiday party and gift for Andersson. Davis stated that her son and other children were not enjoying their fifth grade year and that she was frustrated with how her son was being treated and how he felt targeted and disliked by Andersson. Davis confirmed that the summary of the meeting written by Sorenson-Howe was accurate.
In February 2018, Morse received two written complaints from teachers who felt intimidated and bullied because Andersson believed that they had exposed that she had gone to Paris while taking sick leave. On February 13, 2018, Van Gelderen sent an email to one of the teachers, Jennifer Bronstein, copying Sorenson-Howe, summarizing the conversation that the three of them had earlier that day. Bronstein informed Van Gelderen and Sorenson-Howe that Andersson had made her feel uncomfortable at a meeting that took place on February 9, at which Andersson stated: “I know when people go and speak to
Sorenson-Howe also prepared a summary of their February 13 conversation, which Bronstein signed on February 22. Bronstein had conveyed that she was now uncomfortable even saying “hi” to Van Gelderen and Sorenson-Howe because of the conversation with Andersson, that she felt that Andersson was accusing her and another teacher, that Bronstein was fearful of Andersson and intimidated by her, that she worried about her reputation and felt that her character was being called into question, and that she was afraid to speak to the administration for fear of what Andersson would think of her or do to her. Bronstein prepared her own written statement, also signed on February 22. It stated that, at a meeting with Andersson and another fifth grade teacher, Andersson had made a statement suggesting that the other teachers had looked at her Facebook page and said things about her, which made Bronstein very uncomfortable. Bronstein felt that she had to get Andersson‘s approval for any idea before even suggesting it for the group‘s consideration “because [she felt] like [Andersson] is angry about every decision” Bronstein made.
On February 23, 2018, another teacher, Nicole Packer, emailed Sorenson-Howe asking if they could talk alone. On February 27, Packer thanked Sorenson-Howe for meeting with her and asked that Sorenson-Howe attend the fifth grade teachers’ planning meeting that week. Packer stated that “[t]hings continue to be uncomfortable” and that “[j]ust sending this email [made her] uncomfortable because of how loosely the term ‘tattling’ is being thrown around by certain peers.”
1.5. Andersson is Placed on Paid Administrative Leave
On February 28, 2018, Andersson was placed on paid administrative leave so the District could conduct an investigation and to protect both Andersson and those who had brought complaints against her. Morse testified that the signed statements from the other teachers were only part of the decision to put her on leave. She also cited Andersson‘s concerns about C.V., a student who had recently been placed in her class, and about the request for a doctor‘s note justifying her absence in December. Morse followed up on these concerns and learned that parents were “having concerns around their students being bullied and mistreated in . . . Mrs. Andersson‘s classroom.” She was also informed of an allegation that Andersson had discussed
Morse sent Andersson an email asking her to come to a meeting at the District office after school. Andersson indicated that she could not attend because she had a prior engagement. Sorenson-Howe called Andersson on her classroom phone and yelled at her, instructing her to go the meeting. Andersson became upset and began experiencing anxiety. She called the office and asked for a substitute teacher and then left the building. Sorenson-Howe came out to the parking lot and told her not to leave and that Morse could meet them in the parking lot shortly. Andersson told Sorenson-Howe that she felt sick and that Sorenson-Howe was causing her anxiety. Sorenson-Howe was standing between Andersson and her car door and Andersson asked her to move. Andersson eventually made her way into the car and left.
Later that day, Andersson received a communication from the District informing her that she was being placed on administrative leave. The individual she spoke with did not know why she was being placed on leave but told her that it was for her own protection.
1.6. Andersson Files a Complaint with the California Department of Education Concerning B.U.
On April 12, 2018, while on administrative leave, Andersson filed a special education complaint with the California Department of Education (CDE). With respect to B.U., she alleged that, in October 2017, B.U.‘s parents approached her and asked why their son had not been pulled out of class for services.
In June 2018, the CDE issued its investigation report on these allegations, which was based on the investigator‘s review of documents provided by Andersson and the District, as well as conversations with Andersson, B.U.‘s parent, the District, and B.U.‘s previous district. The report found that B.U. entered the district with an IEP from the previous district, which was discovered October 9 and an IEP meeting was convened on October 23, 2017. The report concluded that the District was out of compliance with
1.7. The District Issues Andersson a Notice of Unsatisfactory Performance and Negative Performance Review
While Andersson was on leave, Morse investigated the claims against Andersson and concluded that they were substantiated. When Andersson returned to work in August 2018, she was presented with a “Notice of Unprofessional Conduct and Unsatisfactory Performance” (Notice) that was drafted and signed by Morse and received a negative performance review. The Notice identified approximately 70 instances of unprofessional conduct and unsatisfactory performance based on the observations of parents, students, behavior support
1.8. The District Investigates Andersson‘s Claims of Retaliation
In November 2018, an attorney for the District contacted an independent firm to investigate Andersson‘s allegations that she had been retaliated against. The firm interviewed District employees, parents, and reviewed emails and documents before issuing a report in January 2019. The report concluded that there was no evidence that Sorenson-Howe and Morse issued frivolous written discipline or retaliated against Andersson. It further concluded that there was no evidence that Sorenson-Howe concealed B.U.‘s IEP or falsely represented that it had not arrived.
2. Procedural Background
In December 2018, Andersson filed a complaint against the District, Sorenson-Howe, and Morse, asserting six causes of action: (1) retaliation under
In January 2021, the defendants filed a motion for summary judgment, or in the alternative, summary adjudication. The court granted the motion. With respect to the retaliation cause of action under the
Andersson timely appealed.
Following oral argument and the submission of this matter, the Supreme Court issued its opinion in Kolla‘s, which held that a protected disclosure under
DISCUSSION
Andersson contends that the court erred in its determination that she did not engage in protected activity because she disclosed facts that were already known. Andersson argues that summary adjudication of the
The defendants contend that the trial court‘s order with respect to the retaliation causes of action should be affirmed because Andersson‘s disclosure was not protected. The defendants argue that Kolla‘s is distinguishable on its facts. They claim that Andersson‘s disclosures were not protected because she did not blow the whistle on a violation of law but reported a disagreement with how her manager handled the IEP situation, and because the violation was already resolved at the time Andersson reported it. The defendants also argue that, even if Andersson‘s disclosures were protected under Kolla‘s, summary judgment was still appropriate on other grounds.
The defendants further contend that Andersson has failed to identify any statute authorizing the assertion of common law torts against the District. They also argue that the IIED claim against Sorenson-Howe fails because the confrontation in the parking lot was a management action and thus not unfair or outrageous conduct. Finally, the defendants contend that the NIED cause of action fails because Sorenson-Howe did not have a duty not to approach Andersson in the parking lot and because the retaliation statutes do not create a duty of care for purposes of a tort claim.
We hold that the court erred in granting summary adjudication of the
1. Standard of Review
The standard of review in an appeal from a summary judgment is well established. “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Id. at p. 850;
On appeal from a summary judgment, we review the record de novo and determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation]. ‘Thus, while the court in determining
“[I]t is well settled that on appeal following summary judgment the trial court‘s reasoning is irrelevant . . . . We exercise our independent judgment as to the legal effect of the undisputed facts [citation] and must affirm on any ground supported by the record. [Citation.]” (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140.) “[O]ur review is governed by a fundamental principle of appellate procedure, namely, that ‘ “[a] judgment or order of the lower court is presumed correct,” ’ and thus, ‘ “error must be affirmatively shown.” ’ [Citation.] Under this principle, plaintiff bears the burden of establishing error on appeal, even though defendants had the burden of proving their right to summary judgment before the trial court. [Citation.] For this reason, our review is limited to contentions adequately raised and supported in plaintiff‘s brief. [Citation.]” (Arnold v. Dignity Health (2020) 53 Cal.App.5th 412, 423.)
2. Andersson has failed to demonstrate that the court erred in granting summary adjudication of her Education Code cause of action.
Andersson begins her discussion of whether she made a protected disclosure without stating the cause or causes of action to which her arguments relate. From the first several pages, one might fairly assume that she is addressing only the
“It is the responsibility of the appellant, here plaintiff[], to support claims of error with meaningful argument and citation to authority. [Citations.] When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.] In addition, citing cases [or statutes] without any discussion of their application to the present case results in forfeiture.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) Andersson has forfeited her claim that the court erred in granting summary adjudication of her cause of action under the Education Code.
3. Although the court’s ground for granting summary adjudication of the Labor Code cause of action was error, summary adjudication was proper.
We turn to the issue of whether Andersson has established a triable issue of material fact with respect to her retaliation cause of action under the
“In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.” (
In other words, three elements must be satisfied to make out a prima facie case of whistleblower retaliation: (1) the plaintiff engaged in protected activity; (2) the plaintiff was subjected to adverse employment action; and (3) a causal link between the two previously stated elements. Once an employee makes a prima facie case under
The court granted summary adjudication of the
3.1. After Kolla’s, the court’s order granting summary adjudication on the ground that Andersson did not make a protected disclosure cannot stand.
Under prior Court of Appeal decisions, the reporting of already known facts did not constitute a protected disclosure under the
In Kolla’s, an employee complained to her supervisor that she had not been paid wages for her previous three shifts and her supervisor terminated her employment and threatened to report her to immigration authorities. (Kolla’s, supra, 14 Cal.5th at p. 721.) The employee informed the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations and, after the employer and supervisor declined to accept DLSE’s proposed remedies, the Labor Commissioner sued them for
The Supreme Court reversed. It agreed with the Labor Commissioner that, under dictionary definitions of “disclose,” “information disclosed need not be previously unknown to the recipient” and that “[t]o ‘make [something] openly known’ [citation] or ‘open [something] up to general knowledge’ [citation] does not require that the ‘something’ be unknown to the current recipient.” (Kolla’s, supra, 14 Cal.5th at p. 725.) The Supreme Court further observed that the legislative history of
In response to concerns from an amicus curiae that the court’s interpretation “threatens ‘to convert everyday workplace disputes into whistleblower cases[,]’” the Supreme Court noted
Under the Supreme Court’s interpretation of
The defendants contend that, unlike in Kolla’s, Andersson’s disclosure to Morse only concerned her assertion that Sorenson-Howe lied or mishandled the situation, which was not a violation of the law but a personnel matter. They further argue that the
It is not clear that Andersson’s disclosure to Morse was exclusively a personnel matter. The Supreme Court observed that additional reports regarding the same violation of law can corroborate or assist in the investigation or correction of a known violation. (Kolla’s, supra, 14 Cal.5th at pp. 730–731.) Kolla’s also reaffirms that
We agree with the defendants that, unlike in Kolla’s, the undisputed evidence supports that the District took steps to address the violation of law—the failure to timely provide B.U. with the services to which he was entitled under
Even if the disclosures to Morse pertained only to personnel matters, Andersson’s later disclosure to the CDE did not simply concern Andersson’s disagreement with how Sorenson-Howe managed the situation with B.U. Rather, Andersson reported her belief the District’s failure to provide B.U. with services prior to October 2017 violated
Thus, a reasonable jury could conclude that Andersson made at least one protected disclosure and that the court erred in granting summary adjudication of the
3.2. Summary adjudication of the Labor Code cause of action was nevertheless appropriate.
Having concluded that the ground on which the trial court relied in granting summary adjudication is not valid, we consider whether summary adjudication of the
Although we may affirm an order granting summary adjudication on any ground supported by the record (Jimenez v. County of Los Angeles, supra, 130 Cal.App.4th at p. 140),
Courts of Appeal have held that “[t]he purpose of
3.2.1. Causal Connection
With respect to the causal connection element, an employee need not show that retaliation was the “‘but for’ cause of the employment decision” but must show that retaliation was at least a “substantial motivating factor” for the decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 230, 232.) “‘“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.’” [Citation.]’ [Citation.] ‘Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.’ [Citation.]” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69–70 (Morgan).) A causal connection can also be demonstrated by a “sudden change of position” toward an employee after a disclosure is made. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 141, disapproved of on another ground by Lawson, supra, 12 Cal.5th 703.)
With respect to the first claimed act of retaliation, the undisputed evidence establishes that Sorenson-Howe was not
With respect to the Notice and negative performance review, the undisputed evidence does not establish any “sudden change of position” with respect to Andersson. (Mokler v. County of Orange, supra, 157 Cal.App.4th at p. 141.) By the time Andersson made her complaint to the CDE, the administration at Meadows had received multiple complaints from parents and teachers concerning Andersson and an investigation into the various complaints against her was already underway. However, a causal link may also be established by circumstantial evidence, such as “‘“‘the proximity in time between the protected action
3.2.2. Clear and Convincing Evidence of an Independent and Legitimate Reason for the Adverse Actions
Even where a plaintiff establishes a prima facie case of retaliation,
Under
The District has carried its burden. Approximately a month into the 2017–2018 school year, a parent wrote an email to Sorenson-Howe in which he claimed that Andersson’s treatment of his child was so bad that a classmate cried to her parents about it. He further stated that Andersson had called his child “stupid” in front of the class. The situation was only resolved following “extensive conversations,” coaching, and support from Sorenson-Howe. In early 2018, a parent called and spoke with Van Gelderen about how her child felt “miserable” and “targeted” in Andersson’s class. The student’s mother expressed surprise that Andersson had no problem with the child moving to another class. Shortly thereafter, a parent complained to Sorenson-Howe that she was frustrated with how her son was being treated in class and how he felt targeted and disliked by Andersson. In February 2018, two teachers also complained to Sorenson-Howe and Van Gelderen about Andersson’s behavior towards them. According to the teachers, Andersson intimated that she knew that they had revealed the contents of her Facebook page to Sorenson-Howe (a claim they denied) and suggested that they would get in trouble for “tattling,” which made the teachers uncomfortable and anxious. One of the teachers also felt that she
Andersson does not meaningfully dispute the conduct set forth in the Notice but simply asserts that the incidents therein are “untrue or unfairly characterized.” “[A]n issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ [citation] . . . .” (Sinai Memorial Chapel v. Dudler, supra, 231 Cal.App.3d at p. 196.)
Andersson contends that the District’s reasons for issuing a negative performance review were “false and pretextual” because she had not previously received a negative performance review or written discipline during her 20-year career and because of the timing of the adverse actions.6 However, the undisputed evidence does not support that the complaints identified in the Notice were unprecedented. A confidential memorandum from June 2010 records complaints received from two sets of parents whose children felt poorly treated and picked on by Andersson and who requested that their children not be placed in Andersson’s class again. Andersson signed the memorandum.7 Further, months
Andersson also presents a declaration from a former District employee who vaguely asserted that Sorenson-Howe mischaracterized facts relating to that employee’s work performance and attributed a fabricated statement to the employee. However, Andersson identifies no evidence suggesting that any of the parents, students, behavior support specialists, or teachers “fabricated” the incidents described in the Notice. The results of the independent investigation, which involved interviews with many parents and teachers, support that they were not fabricated.
Andersson further contends that certain isolated incidents of misconduct in the Notice “border[] on the absurd.” However, Morse repeatedly emphasized in her undisputed deposition testimony that it was not any single incident that justified the negative performance review, but the sum of the behaviors reflected in the Notice. Andersson does not meaningfully respond to this contention.
Andersson suggests that the negative performance review is not legitimate because Sorenson-Howe observed Andersson teaching in November 2017 and gave her positive feedback. However, Sorenson-Howe received multiple additional complaints from parents of students and Andersson’s colleagues after she
Finally, Andersson contends that the Notice and negative performance review were not legitimate because much of the unprofessional conduct identified was not discussed with her at the time it took place. Although there is a factual dispute as to whether Sorenson-Howe contemporaneously discussed all the issues identified in the Notice with Andersson, Andersson concedes that Sorenson-Howe discussed at least six of the incidents described in the Notice with her at the time they occurred. Several of the incidents in the Notice that Andersson claims were never raised to her were conversations between Andersson and Van Gelderen or Sorenson-Howe. Further, Andersson does not claim that she was unaware any of the actions described were inappropriate or unprofessional at the time they took place. Indeed, much of the alleged misconduct that Andersson claims she was not informed of was of a similar nature to misconduct that was discussed with her. For example, a jury could not reasonably find that Andersson was unaware that making unsupportive and embarrassing comments about a student in front of the class was inappropriate after she received feedback and coaching in connection with an earlier complaint that she had stated in front of the entire class that M.E. had gotten all the math problems wrong.
Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367 is instructive. The plaintiff, who had been promoted to a new position that was probationary for six months, claimed that she had been released from probation for complaining that her duties
4. Andersson forfeits her appeal of the IIED and NIED causes of action.
In her opening brief, Andersson does not identify the elements of the IIED and NIED causes of action or cite legal authority in support of her claim that the court erred in its rulings with respect to these causes of action.8 “The failure to
With respect to the IIED cause of action against Sorenson-Howe, Andersson asserts that Sorenson-Howe acted in an extreme and outrageous fashion that exceeded “normal personnel management activity” but does not include any citations to the record. Any statement in a brief concerning matters that are in the appellate record, whether factual or procedural, whether in the statement of facts, the procedural history, or the argument portion of the brief, must be supported by a citation to the record. (
Although Andersson includes some authority in her reply brief, she again fails to identify the elements of the IIED and NIED causes of action. Andersson contends that governmental immunity does not apply without specifying whether she is talking about the District, Sorenson-Howe, or both, and does not identify or discuss the relevant statutes concerning governmental immunity. Further, the scant record citations included are to the parties’ briefing of these issues below. The parties’ arguments are not evidence and cannot create a triable issue of material fact. (See Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139 [“Statements and arguments by counsel are not evidence. [Citations.]”]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [citation to footnote of memorandum of points and authorities “obviously is not to admissible evidence in the record that indicates a triable issue of fact exists”].)
“An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106, accord, Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [appellate court “will not develop the appellants’ arguments for
The judgment is affirmed. The defendants shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
HEIDEL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.