CURLING v. CBS BROADCASTING INC. No. B223145.

DEBORAH CURLING, Plaintiff and Appellant, v. CBS BROADCASTING INC., et al., Defendants and Respondents.

Court of Appeals of California, Second District, Division Seven.
Filed January 24, 2012.
Nick A. Alden for Plaintiff and Appellant.
Littler Mendelson, Maureen E. McClain and Lucas V. Munoz for Defendant and Respondent CBS Broadcasting, Inc.
Glaser, Weil, Fink, Jacobs, Howard, Avchen & Shapiro, Patricia L. Glaser, Sean Riley, and Stephen Y. Ma for Defendant and Respondent Bob Barker.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

Deborah Curling, a former employee of CBS Broadcasting who worked on the television game show "The Price is Right," sued CBS and show host Bob Barker. The trial court granted summary judgment in favor of Barker and CBS. Curling appeals, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

California Rules of Court, rule 8.204(a)(2)(C) requires the appellant's opening brief to include "a summary of the significant facts limited to matters in the record." Curling's statement of facts violates this rule. Curling recites her allegations against CBS and Barker rather than relating the procedural and factual background of the matter. This is inadequate to provide this court with the factual and procedural background of the case, and the problem is compounded by the massive size of the record designated on appeal. Moreover, the vast majority of the factual assertions made in the factual and procedural background section of the brief are unsupported by references to the record on appeal. Where record citations are provided, all but a few citations direct the reader to allegations in Curling's first amended complaint, which was the subject of successful demurrers and was superseded by a second amended complaint.

From our review of the record on appeal, it appears that Curling sued CBS and Barker in 2007. After successful motion practice, the causes of action were whittled down to claims that CBS committed retaliation and/or wrongful termination; created a hostile work environment; and intentionally inflicted emotional distress on Curling. Barker was also alleged to have engaged in hostile work environment discrimination.

Barker and CBS each filed summary judgment motions. Curling obtained a continuance of the summary judgment hearing and an order reopening discovery. As a result, the trial date was continued from June 1, 2009, to December 21, 2009. CBS and Barker filed amended motions for summary judgment in April 2009, with a hearing date on the summary judgment motions set for September 2009.

Curling sought to depose CBS's president and chief executive officer and other executives. CBS moved for protective orders prohibiting the depositions. The trial court granted the protective orders in May 2009 and sanctioned Curling.

With the summary judgment hearing date approaching, in August 2009 Curling applied ex parte for a second continuance of the summary judgment hearing and another reopening of discovery. The trial court denied her application on the basis that there was not good cause for a continuance; the case had previously been continued for similar reasons; and the information Curling requested was not new information.

The trial court granted summary judgment in favor of CBS and Barker. Curling appeals.

DISCUSSION

I. Denial of Second Continuance and Reopening of Discovery

Code of Civil Procedure section 437c, subdivision (h) authorizes the trial court to deny a summary judgment or summary adjudication motion or to continue a summary judgment or summary adjudication hearing when the responding party demonstrates by affidavit that facts essential to justify the opposition may exist but that "for reasons stated" cannot at that time be presented. Curling obtained relief once under this statute, but when she again moved for a continuance and the reopening of discovery, the trial court denied her motion. Curling contends that the trial court would have granted the requested continuance but for the difficulty finding a new date for the summary judgment hearing, and she argues that "the decision to deny a motion to continue and reopen discovery based on unavailability of dates based on the Court's calendar is an abuse of discretion and should be reversed on appeal."

We have reviewed the court's ruling and the transcript of the hearing on Curling's motion to continue and reopen discovery. The court expressed some initial skepticism about Curling's request, asking "Didn't I four months ago continue this because you wanted to take further discovery? I did that once already for you." Curling's counsel argued that further discovery was needed and that he had just learned about CBS investigations into Curling's claims. CBS responded that "every individual who was interviewed as part of the investigation into Ms. Curling's claims was identified the first time that [counsel] propounded form interrogatories back in 2008. There is no one new here."

The court said that it "reluctantly" was "inclined" to grant another continuance "to finally put this to rest." Barker's counsel argued against the continuance because the requested discovery did not relate to claims against his client, and it became obvious when calendars were consulted that the relief that Curling sought—a continuance of the summary judgment hearing but not of the trial date—would result in the summary judgment motions being heard less than two weeks before trial began. Counsel for CBS argued that backing the summary judgment motions up until a date shortly before trial would significantly and unnecessarily prejudice the defendants' trial preparations.

The trial court reminded Curling that it had continued the case already for the purpose of further discovery and said, "No. I'm going to deny the motion to continue and reopen discovery." Curling's counsel argued that CBS had frustrated his discovery attempts, and the court responded, "You had an opportunity to do discovery. You haven't done it, sir, since April. You have not done it." The court also stated, "The court finds this is not new information. This could have been previously done. This has been continued for a period of time, so the motion to continue the summary judgment is denied."

The court's minute order mirrors its statements at the hearing: "The Court does not find good cause for the requested continuance. The Court finds that this case has been continued previously for the same or similar reasons. The Court finds that the information requested is not new information."

This record does not support Curling's assertion that her meritorious motion was denied solely due to the court's calendar. The record suggests a skeptical court initially inclined to grant a continuance—despite doubts concerning its appropriateness—out of lenity or an abundance of caution, ultimately deciding against taking a permissive stance once the ramifications for the parties of granting a further continuance became clear. Because the record contradicts Curling's claim that the court denied the continuance because of its calendar, and because she has not offered any argument why the trial court's stated rationale for its ruling was incorrect, she has failed to demonstrate any error by the trial court. (See State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [appellant bears the burden of affirmatively demonstrating error].)

II. Protective Order

Curling argues that the trial court erred in granting the protective order sought by CBS to prevent the deposition of CBS's CEO Leslie Moonves and other CBS employees. In the caption for this argument and in the concluding language, she appears only to claim error in granting the protective order with respect to Moonves. At other places in the argument she seems to include executive Harvey Holt in the scope of her appeal. In other instances, Curling repeatedly refers to deposing Barker, but she has not identified any protective order in the record that would cover Barker. From this briefing we are unable to resolve this confusion concerning the scope of Curling's appellate argument, but we find that Curling has not demonstrated any abuse of discretion with respect to the protective order. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1286-1287 [protective orders reviewed for an abuse of discretion].)

First, Curling argues that because the trial court permitted the reopening of discovery, it had already "agreed that Curling had a good cause to depose those individuals" and therefore could not sanction her when it granted the protective order. Curling offers no authority to bolster this claim, and we are not aware of any authority that supports the proposition that a trial court's earlier finding that good cause exists to permit further discovery requires it to rule later that the party pursuing the discovery has acted with substantial justification and/or that sanctions would be unjust no matter what discovery tactics the party has employed. (Code Civ. Proc., § 2025.420, subd. (d) [court shall impose a monetary sanction to one who unsuccessfully makes or opposes a motion for a protective order unless it finds that the person acted with substantial justification or that other circumstances make the imposition of the sanction unjust].)

Next, Curling claims that the protective order issuance raises a question of first impression: whether case law concerning the deposition of executives "establish[es] a blanket prohibition against the taking of the depositions of Executives, or each case should be judged on its own facts?" We have reviewed the decisions Curling discusses, Liberty Mutual Ins. Co. v. Superior Court, supra, 10 Cal.App.4th 1282 and Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, and find that neither prohibits the deposition of executives; nor did the court here rely on any purported universal ban. To the contrary, the court concluded that Curling had not shown that the executives in question possessed personal knowledge relevant to the litigation that could not have been discovered by other, less intrusive means.

Curling claims that she wants to depose Moonves and Holt "about their own conduct, which constitutes sexual harassment and creates a hostile working environment." She asserts that these executives created "a widespread policy of sexual favoritism that is set from the top at CBS." Curling claims that the deposition is relevant to her case for a hostile work environment under Miller v. Department of Corrections (2005) 36 Cal.4th 446 (Miller). The Miller court concluded that widespread sexual favoritism can support a claim for sexual harassment based on a hostile work environment provided that the favoritism is "severe or pervasive enough to alter [the plaintiff's] working conditions and create a hostile working environment." (Id. at p. 466.) In Miller, a prison warden engaged in relationships with multiple employees, fondled one paramour in front of plaintiffs, and promoted his lovers over plaintiffs despite the plaintiffs' superior experience. (Id. at pp. 452-459.) The Miller court concluded that the plaintiffs had presented sufficient evidence of widespread sexual favoritism and its resultant impact on the work environment to survive a summary judgment motion. (Id. at p. 466.)

Miller, supra, 30 Cal.4th 446, may authorize the sort of case that Curling wants to present, but it does not suggest that the trial court abused its discretion in imposing the protective order for Moonves and Holt on the facts of this case. Curling made no showing in the trial court that Moonves's or Holt's alleged relationships affected her working environment. Curling claimed in her points and authorities in opposition to the protective order motion that an unwritten rule existed at CBS that women only advanced professionally if they dated executives, but she offered no citations to a declaration or other evidence to support that assertion. In light of the absence of any showing that the conduct of these executives impacted Curling's work environment, the trial court did not abuse its discretion by granting the protective order.

III. Unclean Hands

Curling's final argument is that the "defendants," which from context obviously means CBS, but may also include Barker, acted with unclean hands. She alleges that (1) during the window in which discovery was reopened, CBS frustrated her attempts at discovery; (2) CBS's counsel lied to the court at the hearing on Curling's second request for a continuance when she represented that CBS had previously disclosed the names of all the employees that Curling now wanted to depose; and (3) Curling was denied sufficient time to review and correct her deposition transcript.

Curling has failed to provide any evidentiary support for her first two contentions, and supports only a single assertion with respect to her final claim. We disregard factual statements that are unsupported by references to the record. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947.) Curling provides only one citation to the record for each of her first two claims in this portion of the brief—and those two citations are to pages of her amended memorandum of points and authorities in opposition to CBS's motion for summary judgment. Arguments of counsel in briefs are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [citation to points and authorities "obviously is not to admissible evidence in the record"].) Only one factual sentence in this section of the argument is properly supported by reference to evidence in the record: the assertion that Curling objected to the use of her deposition at summary judgment.

The legal analysis in this section of the brief is similarly deficient. Curling presents three paragraphs of citations to authority on the affirmative defense of unclean hands, but she fails to demonstrate by argument on what basis a plaintiff opposing or appealing summary judgment is aided by an affirmative defense that precludes plaintiffs from recovering on the merits of their cases when they have acted unfairly. Curling does not relate her complaints about unclean hands to any ruling of the trial court or explain how they pertain to an appeal of a grant of summary judgment. The failure to provide adequate factual support and legal argument is fatal to Curling's unclean hands claim. "We need not address points in appellate briefs that are unsupported by adequate factual or legal analysis." (Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814; see also City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1428-1429 [when a party fails to include argument and citation to authority in its brief, the court may treat issue as waived].)

IV. Triable Issue of Material Fact

In Curling's list of issues on appeal, she lists as one of four issues presented by the appeal whether triable issues of material fact required a trial. The remainder of her brief, however, does not address this issue: She provides a section on the standard of review, and then separate sections of the brief devoted to each of the other three issues listed as issues on appeal. By making a passing reference rather than an argument, Curling has failed to raise the issue of triable issues of material fact in her opening brief.

In her reply brief, Curling includes a section entitled "Whether Executives of CBS Created Hostile Working Environment," in which she sets forth CBS's harassment policy and recites some of the allegations in her original complaint in this action. Curling does not include any citations to evidence to support her claims or any argument as to whether or how the trial court erred when it granted summary judgment. To the extent that this section of the reply brief is intended to support her passing reference in the opening brief to the propriety of the summary judgment, it is inadequate to do so.

"An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. `Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; see also In re Phoenix H. (2009) 47 Cal.4th 835, 845.)

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

PERLUSS, P. J. and WOODS, J., concurs.


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