Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC832737, Kevin A. Enright, Charles Hayes, Judges.
O'ROURKE, Acting P. J.
Rob Halliburton appeals from a summary judgment in favor of his former employer, Remington College – Denver Campus, Inc. (Remington), on Halliburton's complaint against Remington and his former supervisors for wrongful termination in violation of public policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172), defamation, and intentional and negligent infliction of emotional distress. The court initially granted summary adjudication of all but the defamation causes of action on grounds (1) Halliburton did not establish in his pleadings or in discovery responses that he was terminated for engaging in activity protected by an established and well-known constitutional provision, statute or governmental regulation; (2) Halliburton could not invoke certain Education Code provisions as a public policy basis; and (3) Halliburton's emotional distress cause of action was preempted by workers' compensation exclusivity (Labor Code, § 3200, et seq.). The trial court later corrected its ruling to encompass Halliburton's defamation cause of action; it then granted summary judgment, ruling Halliburton had not alleged Remington authorized or ratified the conduct of his supervisors and denied him leave to amend his complaint to allege such ratification on grounds his request was untimely.
On appeal, Halliburton contends summary judgment was improper because he identified provisions of the Private Postsecondary and Vocational Education Reform Act of 1989 (former Ed. Code, § 94700 et seq., hereafter the Reform Act), and the Maxine Waters School Reform and Student Protection Act of 1989 (former Ed. Code, § 94850 et seq., hereafter the Waters Act) in his opposing summary judgment papers and submitted evidence raising a dispute as to whether those statutes applied to Remington programs during his employment, and his emotional distress claims arose from Remington's retaliatory discharge and thus are not barred under the workers' compensation law. He further contends the trial court abused its discretion in denying him leave to amend his complaint to allege Remington's vicarious liability for his supervisors' defamatory statements. Finally, he contends the trial court abused its discretion in denying his motions to compel Remington to respond to certain discovery.
Statutory references are to the Education Code unless otherwise indicated. The provisions of the Reform Act and Waters Act in effect during Halliburton's employment became inoperative on July 1, 2007, after Halliburton filed his opening brief on appeal. (Stats. 2004, ch. 740 (S.B. 1544), § 7; see 28B pt. 4, West's Ann. Ed. Code (2008 supp.) under heading Private Postsecondary and Vocational Institutions (Repealed), pp. 1, 5.)
For reasons set forth below, we conclude summary judgment was improper on Halliburton's causes of action for wrongful discharge and intentional and negligent infliction of emotional distress. We direct the trial court on remand to grant Halliburton leave to amend his defamation cause of action as indicated below. Finally, we vacate the order denying Halliburton's motions to compel discovery and remand the matter with directions that the trial court consider the proper remedy for Halliburton's insufficient efforts to informally resolve the discovery disputes.
FACTUAL AND PROCEDURAL BACKGROUND
Halliburton was hired as a recruiter at Remington in November 2003. Remington terminated Halliburton's employment on April 30, 2004, after he was called into the office of Remington's acting President, Jose Cisneros, and told he was being fired because a student who Cisneros refused to identify complained Halliburton had sexually harassed her.
Halliburton sued Remington (and other related Remington entities), Cisneros, and his supervisor Lennor Johnson, alleging causes of action for wrongful termination in violation of public policy, defamation, and intentional and negligent infliction of emotional distress (among other voluntarily dismissed causes of action that are not at issue on this appeal). In a wrongful termination cause of action labeled " 'whistle blowing,' " Halliburton alleged his termination was in violation of public policy, and a nexus existed between his termination and certain complaints he had made about Remington's assertedly unscrupulous and fraudulent practices relating to sending false financial aid requests to the federal government, making representations to prospective students regarding Remington's history and job statistics for certain Remington graduates, and Remington's administration of entrance exams. He also alleged: "It is the public policy of the State of California (and presumably that of the other relevant states in the U.S.A.) that private post-secondary education and vocational institutions not engage in fraudulent activity in obtaining financial aid from the state and federal government for students who do not qualify, for the sole purpose of financial gain. Preventing fraud upon the taxpayers is a matter of clear public policy."
Remington moved for summary judgment and alternatively summary adjudication of issues. Asserting that Halliburton had never identified a specific statute, regulation or ordinance or any public policy violated by Remington in his complaint or discovery responses (other than generic references to the Education Code), it argued his Tameny wrongful termination cause of action failed because there were no statutes, ordinances or regulations requiring it to administer entrance exams to applicants or requiring it to impose time constraints on such exams. Nor, Remington argued, were there such laws or regulations setting a cutoff date for new student enrollment. Remington maintained Halliburton's allegations showed only that he was complaining to Remington internally about noncompliance with its own policies and procedures, and such internal complaints about an individual college's internal entrance exam, attendance, and other admission and related policies did not constitute protected activity under California law. Remington supported its motion with the declaration of Bill Moody, the director of compliance and ethics at Remington Administrative Services, Inc., who stated that from 1999 to June of 2004, Remington College's San Diego campus only offered degree programs, but in June of 2004, it began for the first time enrolling students for non-degree, i.e., diploma, programs. Finally, Remington argued Halliburton's emotional distress causes of action were preempted by the Workers' Compensation Act.
Summarizing his background experience and his familiarity with statutory, governmental and other legal regulations governing the admission of students for colleges like Remington, Moody stated he knew of no statute, ordinance or other governmental regulation in effect during the relevant period requiring prospective students to take any entrance exam, setting out required procedures for administering entrance exams to college applicants including the number of times such an exam may be taken or whether or not the exams must be timed, prohibiting Remington from starting new students after any particular date in a quarter, establishing minimum standards for student attendance, or mandating or limiting the criteria defining who was a qualified applicant for enrollment at Remington. Moody averred that for these matters, Remington had its own internal procedures and practices.
In opposition, Halliburton argued he was fired in retaliation for complaining to his supervisors about Remington's unlawful and unethical business practices; that Remington's claim he had engaged in sexual harassment was a pretext for his discharge, which was in violation of public policies and legislative intent expressed in sections 94852, 94853, 94859, 94898 and 94841 of the Waters Act, as well as provisions (§§ 94701, 94810-94812) of the Reform Act. Asserting Moody's declaration was false and misleading, Halliburton argued the Waters Act applied to Remington because in January 2004, it offered non-degree, i.e., "diploma" courses in January 2004 as demonstrated by its own 2004 catalog.
As Halliburton's counsel later attempted to point out to the trial court at oral argument, these references were to provisions of the Waters Act and Reform Act that had been repealed in 1997 and incorporated into former sections 94705, 94800 and 94832 of the Reform Act and former sections 94850, 94851 and 94872 of the Waters Act. (Stats. 1997, ch. 78 (A.B. 71) § 3.9; see Historical and Statutory Notes, 28B pt. 3, West's Ann. Ed. Code (2002 ed.) foll. § 94701, p. 326; Historical and Statutory Notes, 28B pt. 4, West's Ann. Ed. Code (2002 ed.) foll. §§ 94810, 94811, 94812, 94841, 94852, 94853, 94859, 94898, pp. 16-17, 46, 56-57, 71, 111-112.)
Halliburton submitted a declaration in which he stated that soon after he began working as a recruiter at Remington, he noticed instances of unethical business practices that to him appeared to be directed, controlled, condoned and orchestrated by Jose Cisneros. He stated he observed his immediate supervisor, Johnson, acting together with Cisneros in directing the practices. In particular, Halliburton averred that Remington was making what he viewed as false and misleading statements to prospective students in a PowerPoint presentation regarding its history and job statistics for Remington criminal justice graduates. According to Halliburton, in January 2004 he complained about the discrepancies to Cisneros, who responded Halliburton should not worry about it and just "do his job." Halliburton averred that in February 2004, he complained to both Johnson and Cisneros in Johnson's office about the untruthful PowerPoint representations, telling them he felt he was being asked to lie, was uncomfortable about it, and that Remington was misleading prospective students about job placement and their college. Johnson and Cisneros laughed about it and Cisneros walked out of Johnson's office telling Halliburton, "Don't be so serious."
Remington urges us to disregard Halliburton's opposing summary judgment declaration, reasserting in its opening brief evidentiary objections it made in the trial court. Because the trial court did not expressly rule on Remington's objections and Remington did not press for a ruling, however, the evidence to which Remington objected is considered part of the record on appeal and its evidentiary objections are deemed to have been waived and not preserved for appeal. (See Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1 (Sharon P.), disapproved on another point in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1 (Ann M.); Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566, 579 (Demps).) Preservation of evidentiary objections for appeal under these circumstances is presently before the California Supreme Court in Reid v. Google, Inc. (2007) 155 Cal.App.4th 1342, review granted January 30, 2008, No. S158965.
Halliburton stated that the presentation told students that Remington College – San Diego Campus had been in business since 1995, but in reality it had opened in 1999. He stated the presentation falsely represented that 95 percent of all criminal justice graduates received jobs in the same field; as of January 2004, when the statement was made, no Remington San Diego criminal justice student had graduated and thus no such student could have obtained a criminal justice job position.
Halliburton averred that, as a result of his conversations, he began looking into how business was being conducted and found Cisneros and Johnson were involved in what appeared to him to be a scheme to defraud the federal government in getting student loans for tuition. He stated he discovered Remington was required to give entrance exams to prospective students and used the "Wonderlich" standardized test, but it allowed students to cheat, gave students answers, changed or altered test scores, allowed the exam to be taken untimed or multiple times, and administered the test without using an independent proctor. He stated he had discovered Johnson was directly involved in changing test scores and Cisneros condoned it. According to Halliburton, he also discovered Remington submitted financial aid applications on behalf of students who were allowed to attend through fraudulent testing, though most of the students dropped out because they were not qualified to attend the college. He stated in some cases, he discovered students were counted as attending Remington when in fact they were absent.
In 2004, the Wonderlic Test was a standardized test consisting of 50 questions that had to be answered in 12 minutes. (See Lerner, "Accomodations" For the Learning Disabled: A Level Playing Field or Affirmative Action for Elites? (2004) 57 Vand. L.Rev. 1043, 1124, fn. 328, citing http://www.wonderlic.com (last visited May 18, 2004).
Halliburton stated that in February, March and April 2004, he spoke with Johnson about what he had learned, at times engaging in heated and loud conversations. In April 2004, Cisneros called Halliburton into his office and asked him if he was a team player, telling Halliburton he knew he had complained to Johnson about test scores and had accused Remington of " 'scamming' " the federal government. Halliburton asked Cisneros what he was going to do about it, because he felt it was wrong. Cisneros "blew up" and shouted at Halliburton to leave his office.
Halliburton averred that despite this meeting, he complained to Cisneros and Johnson about the fact that students were not getting catalogs at the time of their enrollment, but was ignored. Halliburton averred that in late April 2004, he complained to Cisneros and Johnson about two students, a married couple, who had failed their entrance exams but were allowed to enroll. Both told him not to worry about it. Halliburton described his further complaints about students who had failed the entrance exam (one who had taken it untimed multiple times), but who were still allowed to attend Remington and have their financial aid "activated," meaning the college was paid by the government for their tuition.
Halliburton averred that on April 30, 2004, Cisneros called him into his office and told him he was fired because a student had complained he was sexually harassing her. Although Halliburton responded he did not know what Cisneros was talking about and asked who had complained, Cisneros refused to identify the person or elaborate. Cisneros mentioned an incident several weeks earlier in which Halliburton had left a voice message for a woman in Remington's financial aid department and complimented her on her "phone voice." According to Halliburton, Cisneros had previously "falsely" stated that Halliburton was sexually harassing her. Halliburton stated he felt Cisneros had fabricated a sexual harassment claim to justify firing him.
Halliburton presented deposition testimony from other Halliburton employees including Katrina Shdeed, Manuel Gallegos and Terrence Peterson. Shdeed, an administrative assistant at Remington responsible for administering Remington's entrance exam, testified she was directed by Johnson to allow a student to retake a test, and that Johnson told her on 10 to 15 occasions to change the test scores, but she never did so. According to her, other Remington employees told her they were subjected to the same demands. On these occasions, Johnson never directly told her to change the score, he would tell her to "make sure the student passes." Shdeed understood that Johnson wanted his "numbers," and "numbers equals money." Though she believed Johnson's requests regarding test scores were illegal, she never complained about it because she was an easy person to replace and was afraid of losing her job. Gallegos, another Remington recruiter who was employed between October 2003 and May 2004, testified that he knew Halliburton was complaining to Johnson about unlawful or improper practices about testing issues and job placement statistics. Gallegos testified he had been trained by Johnson to tell students that there was a 95 percent job placement for criminal justice, even though that program had just started and no student had ever graduated from it. He testified the presentation was a "blatant lie." He was also instructed by Johnson to tutor students to help them get through their entrance exams, which students needed to pass to get into Remington and activate their student aid. He attended recruitment meetings in which Johnson directed recruiters to have students take the entrance exam on a Saturday for the purpose of allowing them unlimited time. Gallegos testified Remington did things unethically or illegally by falsifying attendance so it could activate financial aid applications; he believed Cisneros put pressure on the education department to make sure those students were made to appear to be in school whether they were present or not. Gallegos heard Halliburton complaining about these matters several months before his termination, and he believed Halliburton complained too much and there was no other reason he could think of as to why Halliburton would be fired.
Terrence Peterson, another Remington recruiter, testified in his deposition that Johnson gave him the answer key to the entrance exam so as to provide prospective students with answers, and also directed him to change a test score so that a prospective student could attend the college, and he complied while Johnson watched. According to Peterson, Johnson later told him that the sexual harassment charges against Halliburton were false and that Johnson was sorry "it [Halliburton's firing] had to happen the way that it did," and Johnson also told him for the right amount of money he would tell the truth about what was going on at Remington.
In his opposing separate statement, Halliburton pointed out that he had stated in supplemental discovery responses that he was terminated for complaining about illegal activities at Remington, that "[t]he public policy is his reporting to Remington College of illegal activity." Misciting to former section 94898 of the Waters Act (then incorporated in former section 94872, see footnote 3, ante), Halliburton disputed Remington's assertion that no law or regulation was in effect requiring it to administer entrance exams to prospective students. Halliburton asserted former section 94898 required such exams and governed their administration, including by preventing institutions from assisting students in taking the test. He argued summary judgment was improper because he presented circumstantial evidence raising a dispute as to whether a nexus or causal link existed between his complaints to Johnson and Cisneros and his firing via his own declaration as well as the deposition testimony from Gallegos, who had overheard Halliburton complain to Johnson. Halliburton argued his emotional distress causes of action were not preempted by workers' compensation exclusivity because his emotional distress damages resulted from Remington's retaliatory discharge. Finally, he argued his emotional distress damages based on alleged defamation by Johnson and Cisneros survived summary judgment because he presented evidence they made their allegedly defamatory statements with malice.
Halliburton stated: "In choosing to do business in California, Remington is subject to California's laws regulating post secondary vocational institutions, including the Maxine Waters Act . . . . [Section] 94898 requires a post secondary vocational institution like Remington to administer standardized tests for admission. The test must be approved by the State of California. Remington chose to administer the Wonderlich [sic] exam. [Section] 94898 governs how that exam is to be administered, and prohibits the institution giving answers, altering test scores, and providing any assistance. It establishes minimum test scores and how often the test can be taken if the prospective student fails. § 94898(a)-(g). Accordingly, Remington had no discretion to administer the test. Nor can it legitimately cheat or alter test scores with impunity, at least not in California."
At oral argument on the matter, Halliburton's counsel explained to the court that because he had erroneously cited superseded sections of the Waters Act and Reform Act in his opposing papers, he had filed a supplemental declaration providing the court with the provisions of those acts applicable to Remington in 2004, during Halliburton's period of employment. Remington objected both in writing and at the hearing to the declaration, which had apparently been served and filed only a few days before the hearing, arguing it was not a true errata, but an "eleventh hour" attempt to change Halliburton's legal theories to avoid summary judgment.
In March 2006, the trial court denied Remington's motion for summary judgment, but granted summary adjudication in Remington's favor on Halliburton's wrongful termination and emotional distress causes of action. It ruled Halliburton had not alleged in his pleadings or showed in discovery responses that he was terminated as a result of engaging in activity protected by an established and well-known constitutional provision, statute or governmental regulation. It ruled Halliburton could not show the Waters Act applied at the time of his employment because there was no admissible evidence Remington issued non-degree certificates until at least June of 2004, after Halliburton's termination. It ruled his intentional and negligent infliction of emotional distress causes of action were preempted by the Workers' Compensation Act. The trial court denied summary judgment on grounds a material fact issue existed as to whether Johnson and Cisneros made their alleged defamatory statements as agents for Remington within the course and scope of their employment or whether they made their statements with malice.
Remington thereafter moved for clarification, correction and/or reconsideration of the court's March 2006 order, arguing Remington was not named as a party to Halliburton's defamation cause of action. Halliburton opposed the motion on grounds he had incorporated the allegations of his wrongful termination cause of action into his defamation cause of action, including an allegation that at all times, Cisneros and Johnson were Remington employees and were managing agents for Remington College's San Diego campus. He also requested leave to amend his complaint to name Remington College – San Diego Campus as a party to his defamation cause of action, or alternatively asked the court to treat Remington's summary judgment motion as one for judgment on the pleadings so as to grant him leave to amend. Halliburton finally argued Remington's motion for reconsideration was procedurally defective for various reasons.
The trial court granted Remington's motion for clarification, correction or reconsideration, ruling Remington was entitled to summary judgment because it was not made a party to Halliburton's defamation cause of action. The court pointed out Halliburton's defamation cause of action did not allege that Remington authorized or ratified Johnson's or Cisneros's actions, and ruled it was too late to grant Halliburton leave to amend. Thereafter, the court entered judgment in Remington's favor. Halliburton filed this appeal.
DISCUSSION
I. Summary Judgment Ruling
A. Standard of Review
"[T]he party moving for summary judgment 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. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. [Citation.] There is 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 at p. 850, fn. omitted (Aguilar); Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 722.) "A defendant bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto." (Aguilar, at p. 850; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz); Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252.) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar, at p. 850; Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72 (Green); Code Civ. Proc., § 437c, subd. (p)(2).) A defendant seeking summary judgment "must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not — otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Aguilar, at p. 851, italics omitted.)
On appeal, we independently review the trial court's decision, considering all of the evidence in the supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Guz, supra, 24 Cal.4th at p. 334.) We liberally construe the evidence in support of Halliburton as the opposing party, resolving doubts concerning the evidence in his favor (Yanowitz, at p. 1037; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), and assess whether the evidence would, if credited, permit the trier of fact to find in his favor under the applicable legal standards. (Cf. Aguilar, supra, 25 Cal.4th at p. 850.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in Halliburton's favor, and we must deny the motion when there is some evidence that, if believed, would support judgment in his favor. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)
B. Wrongful Termination Cause of Action
In Silo v. CHW Medical Foundation (2002) 27 Cal.4th 1097, 1104, our high court explained the foundations of the public policy-based wrongful discharge cause of action: " '[W]hile an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy.' [Citations.] We have held that this public policy exception to the at-will employment rule must be based on policies 'carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions . . . . ' [Citation.] This requirement 'grew from our belief that " 'public policy' as a concept is notoriously resistant to precise definition, and that courts should venture into this area, if at all, with great care and due deference to the judgment of the legislative branch" in order to avoid judicial policymaking.' [Citation.] It also serves the function of ensuring that employers are on notice concerning the public policies they are charged with violating. 'The employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes . . . .' [Citations.] The public policy that is the basis of this exception must furthermore be ' "public" in that it "affects society at large" rather than the individual, must have been articulated at the time of discharge, and must be " 'fundamental' " and " 'substantial.' " ' "
"Tort claims for wrongful discharge typically arise when an employer retaliates against an employee for '(1) refusing to violate a statute . . . [,] (2) performing a statutory obligation . . . [,] (3) exercising a statutory right or privilege . . . [, or] (4) reporting an alleged violation of a statute of public importance.' " (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, emphasis added; see also Green, supra, 19 Cal.4th at p. 76; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090-1091, overruled in part on other grounds by Green, at p. 80, fn. 6; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889.)Thus, courts have recognized tortious wrongful discharge claims where an employee establishes he was "terminated in retaliation for reporting to his or her employer reasonably suspected illegal conduct by other employees that harms the public as well as the employer." (Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1119-1120; see also Green, at p. 87; Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1426; Gould v Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1150-1151; Blom v. N.G.K. Spark Plugs (U.S.A.), Inc. (1992) 3 Cal.App.4th 382, 388-389.)
Halliburton contends the court erred in granting summary judgment on his cause of action for wrongful termination in violation of public policy because he identified statutory sources of public policy violations both in his summary judgment opposition papers and in Corrales's supplemental declaration. Specifically, Halliburton points out he identified the Waters Act in his opposing summary judgment papers, and specific provisions of the Reform Act in a footnote of those papers. He points out he identified the correct, then currently applicableprovisions of the Reform Act (former §§ 94705, 94814, 94832, subds. (a)-(c), (h), and (l)) and Waters Act (former §§ 94850, 94872, 94881) in Corrales's supplemental declaration. He argues he presented disputed evidence, via Remington's catalog, as to whether the Waters Act applied to Remington at the time of his employment.
Remington responds with a discussion of the settled requirement that a plaintiff alleging a Tameny claim must identify a specific and applicable public policy underlying the alleged wrongful discharge. It argues because Halliburton did not mention either the Waters Act or Reform Act in his discovery responses or in the causes of action then pending in his complaint, and because the pleadings serve as the " 'outer measure of materiality' " in summary judgment motions, Halliburton's summary judgment motion was properly granted. Remington also argues, without addressing the statutory provisions identified in Halliburton's opposing summary judgment points and authorities, that it is unfair and inappropriate for Halliburton to raise particular sections of the Waters Act on this appeal when he did not mention those sections in his summary judgment separate statement. Remington characterizes Halliburton's failure to mention either statute in his initial or supplemental discovery responses as a "bait-and-switch" and a " 'shell game.' " Finally, Remington argues the trial court did not err in disregarding Halliburton's counsel's supplemental declaration, which was filed three days before oral argument and without leave of court. Remington argues the declaration was not a "true errata" but rather an attempt to change the fundamental basis of plaintiff's claim.
None of these arguments acknowledge or attempt to distinguish the California Supreme Court's discussion in Green, supra, 19 Cal.4th 66, which indicates a wrongful termination plaintiff facing a summary judgment motion may raise a public policy basis for such a cause of action for the first time in his or her summary judgment opposition. In Green, thecourt rejected the defendant's argument that an employee's wrongful discharge causes of action were subject to summary judgment because the employee "failed to identify a specific statute supporting his wrongful termination claim until he filed his opposition to [the employer's summary judgment] motion. . . . [The employer] contend[ed] that the Court of Appeal should have required [the employee] to specify his claim's statutory basis in his original complaint, or, at the very least, in his responses to discovery." (Id. at p. 83.) The Court of Appeal had rejected the employer's argument when it "concluded that [the employee] had adequately identified several . . . regulations as part of his opposition to summary judgment." (Id. at p. 84.) While declining to decide "the precise time at which a plaintiff must identify the particular [section of the constitution,] statutes [or regulations] forming the basis of a [wrongful termination in violation of public policy] claim" (id. at p. 83, fn. 7), Green concluded "the Court of Appeal properly held that [the employee] had met his burden to provide the specific statutes and regulations on which he based his claim." (Id. at p. 84.) Based on Green, we reject Remington's arguments suggesting that a wrongful termination plaintiff must allege a specific public policy within his or her complaint (or seek leave to amend to do so) or no later than in discovery responses, or be subject to summary judgment despite having raised a specific and applicable public policy basis in his or her summary judgment opposition.
The pertinent procedural question is whether it was too late for Halliburton to identify the correct provisions of the Waters Act and Reform Act in his attorney's supplemental declaration, which was filed only days before oral argument on Remington's summary judgment motion. We are compelled to conclude that for purposes of assessing the propriety of summary judgment, Halliburton did not untimely identify those provisions in his counsel's supplemental declaration. First, we disagree with Remington's assertion that the supplemental declaration was not a "true errata," but rather changed the "fundamental basis" of Halliburton's claim. Halliburton had alluded to the public policies underlying the statutes governing private post-secondary education and vocational institutions in his wrongful termination cause of action, and he identified the Waters Act and Reform Act by name in his complaint (albeit in connection with his unfair competition law cause of action). He identified a specific (though at that time repealed and renumbered) provision of the Waters Act in his opposing summary judgment separate statement, pointing out that the basis of his Tameny cause of action was the fact he was terminated for reporting violations of that act. He identified specific (though at that time superseded) provisions of the Reform Act in his opposing summary judgment papers, stating they provided "protection against fraudulent and unethical business practices regarding admissions, classes, job placement and financial aid." Halliburton's opposing summary judgment papers put Remington on notice that he sought to raise public policies expressed in the Waters Act and the Reform Act, and that the basis for his wrongful discharge claim was his termination for reporting violations of those laws. Halliburton's counsel's supplemental declaration provided the court with the Waters Act and Reform Act provisions in effect in 2004, proscribing the same conduct. Counsel's declaration did not change the fundamental legal theory of Halliburton's cause of action.
The circumstances here are not like those in Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th 1238, in which the plaintiff made vague and amorphous charges of " 'Alcohol, Tobacco and Firearms Laws' "without citing specific statutory or constitutional provisions, conduct that put the defendant and the court "in the position of having to guess at the nature of the public policies involved, if any." (Id. at p. 1257.) We cannot say Halliburton's showing before and at the summary judgment stage left the trial court or counsel "having to guess at" the triable issues presented. (Ibid.; Green, supra, 19 Cal.4th at p. 83 ["Clearly, a claim that does not identify the basis of its wrongful termination allegations will not prevail on summary judgment"].) Nor is there any indication Halliburton's counsel engaged in a willful attempt to conceal his position until after filing of the summary judgment papers; he explained at oral argument in the trial court that he had relied on an outdated edition of the statute in drafting his opposition.
The fact this matter is in a summary judgment context lends further support for our conclusion about the timeliness of Halliburton's showing. The question presented on summary judgment is not only whether a "defendant has shown that [the] plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess" needed evidence, but also whether that defendant has shown the plaintiff "cannot reasonably obtain[] needed evidence." (Aguilar, supra, 25 Cal.4th at p. 854, italics added; see also Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) "[T]he defendant must . . . show that the plaintiff cannot reasonably obtainneeded evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion (Code Civ. Proc., § 437c, subd. (h))." (Aguilar, supra, 25 Cal.4th at pp. 853-854, italics omitted.) It would have been insufficient for Remington to merely point out that the Education Code sections cited by Halliburton were repealed, when similar if not identical laws were in effect (albeit in renumbered form) at the time of Halliburton's employment. The trial court could have identified the presently applicable provisions independently in the face of such a summary judgment showing, as courts must judicially notice the law of this state. (Aguilar, supra, 25 Cal.4th at p. 848, fn. 6.)
We turn to the question of whether Remington has demonstrated that Halliburton's cited public policy bases do not apply to it; that it is somehow exempt from the reach of the Reform Act or Waters Act in effect at the time of Halliburton's employment, warranting summary judgment. (See e.g., Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 80 [statute's exclusion of certain employers from its requirements precludes a finding that a fundamental policy supported by that statute would extend to the excluded employers]; Jennings v. Marralle (1994) 8 Cal.4th 121, 135.) Importantly, Remington does not challenge Halliburton's assertions that the provisions of the Waters Act or Reform Act then in effect contained expressions of policy inuring to the benefit of the public at large, and it does not argue the public policies expressed in those acts are not fundamental or substantial. (Green, supra, 19 Cal.4th at p. 71; Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 272.) The Reform Act made willful violations of former section 94832 a crime. (Former §§ 94834, subd. (a).) The prospect of criminal sanctions to punish the violation of a policy has been a significant factor in the determination that a policy is substantial and fundamental. (Sullivan v. Delta Air Lines, Inc. (1997) 58 Cal.App.4th 938, 945; see Carter v. Escondido Union High School District (2007) 148 Cal.App.4th 922, 930-931 [recognizing principle].) Both the Waters Act and Reform Act in effect in 2004 expressed legislative policy to protect students and taxpayers from fraudulent business acts and practices engaged in by such institutions (former §§ 94705, 94850) and we presume for purposes of assessing summary judgment that the policies benefited the public, and were sufficiently fundamental and substantial.
Former section 94834 of the Reform Act provided: "Any person or business entity, regardless of the form of organization[,] that willfully violates . . . Section 94832 is guilty of a crime and shall be subject to separate punishment for each violation either by imprisonment in a county jail not to exceed one year, by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine; or by imprisonment in the state prison, by a fine not to exceed fifty thousand dollars ($50,000), or by both that imprisonment and fine."
As for the Reform Act, Remington argues Halliburton has not shown how it is directly applicable to his claims. It maintains he has not alleged any specific misrepresentations and even if he did, misrepresentations about a voluntary admissions test would be immaterial. Under the sections of the Reform Act in effect at the time of Halliburton's employment, Remington and its representatives were prohibited from "mak[ing] or caus[ing] to be made any statement that is in any manner untrue or misleading, either by actual statement, omission or intimation" (former § 94832, subd. (a)); "engage[ing] in any false, deceptive, or misleading, or unfair act in connection with any matter, including the institution's advertising and promotion, the recruitment of students for enrollment in the institution, the offer or sale of a program of instruction, course length, course credits, the withholding of equipment, educational materials, or loan or grant funds from a student, training and instruction, the collection of payments, or job placement" (former § 94832, subd. (b)); or "in any manner mak[ing] any untrue or misleading change in, or untrue or misleading statement related to, any test score, grade, record of grades, attendance record, record indicating student completion or enrollment, [and] financial information . . . ." (Former § 94832, subd. (h)(1).)
We reject Remington's argument that Halliburton's wrongful termination cause of action must fail because none of the subject students were required to take an entrance exam in order to be qualified to attend Remington, and thus any misrepresentations would be immaterial. The Reform Act did not limit its proscriptions to the type or nature of test; it included within its identification of documents "any test score, grade, [or] record of grades . . . ." (Former §§ 94832, subds. (a) & (h)(1), italics added, 94834.) On its face, the Reform Act did not apply only to statutorily required tests.
By his declaration, which we are required to credit absent express evidentiary rulings by the trial court (Sharon P., supra, 21 Cal.4th 1186-1187, fn. 1; Ann M., supra, 6 Cal.4th at p. 670, fn. 1; Demps, supra, 149 Cal.App.4th at pp. 566, 579), Halliburton demonstrated (or presented evidence supporting rational inferences) that: (1) he engaged in a protected activity, i.e., he complained to Cisneros and Johnson about the misleading PowerPoint presentation, about Remington manipulating test scores and improperly administering the entrance exam, and about students who were permitted to enroll despite having failed their entrance exams; (2) Remington subjected him to an adverse employment action, i.e., termination; and (3) there is a causal link between his protected activity and Remington's action based on the timing of his termination. (Lab. Code, § 1102.5, subd. (c); Green, supra, 19 Cal.4th at pp. 80-87; Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142, 1152; Holmes v. General Dynamics Corp., supra, 17 Cal.App.4th at p. 1426; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70 [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]; Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563, 571, fn. 2.) We conclude Halliburton met his burden to raise triable issues of material fact defeating summary judgment on the question of whether his employment was terminated because he complained about conduct he reasonably believed to be unlawful under the Reform Act.
For purposes of assessing summary judgment, we emphasize that Halliburton is not required to present particularized proof of a statutory violation. An employee need not prove an actual violation of law to support a claim of wrongful discharge against public policy; rather, the employee's assertion that his or her employer violated the law must be reasonably based. (Green, supra, 19 Cal.4th at p. 87, citing Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1121.) Nor must a statutory provision specifically prohibit the employer's precise act; instead it " 'must sufficiently describe the type of prohibited conduct to enable an employer to know the fundamental public policies that are expressed in that law.' " (Grinzi v. San Diego Hospice Corp., supra, 120 Cal.App.4th at pp. 80-81.) We conclude the specified provisions of the Reform Act meet this standard. Thus, it is sufficient that the evidence, construed in Halliburton's favor, demonstrates Halliburton held objectively reasonable suspicions that Remington's misrepresentations to prospective students and its manipulation of entrance exam scores encouraged by Remington management was unlawful. The trial court should have denied Remington's motion for summary adjudication of that cause of action.
Our conclusion disposes of the need to address whether Remington established for purposes of summary judgment that, at the time of Halliburton's employment, it was an institution exempt from the Waters Act, a question that we note is not purely one of law because its resolution depends upon a factual inquiry: whether Remington at that time "confer[red] degrees upon the completion of a course of study of two or more academic years that are scheduled to be completed in not less than 17 months or . . . confer[red] degrees, such as master's or doctorate degrees, on students who ha[d] completed a graduate course of study of one or more years at a college or university." (Former § 94790, subd. (a).) Once Halliburton raised triable issues of material fact on one theory supporting his wrongful termination cause of action, summary adjudication of this cause of action is improper.
Former section 94790 provides in part: "Except as otherwise provided in this section, Article 7 (commencing with Section 94850) does not apply to any of the following educational services: [¶] (a)(1) Except as provided in paragraph (2) [involving occupational associate degrees], educational services that confer degrees upon the completion of a course of study of two or more academic years that are scheduled to be completed in not less than 17 months or that confer degrees, such as master's or doctorate degrees, on students who have completed a graduate course of study of one or more years at a college or university."
C. Negligent and Intentional Infliction of Emotional Distress Causes of Action
Remington contends Halliburton's causes of action for negligent or intentional infliction of emotional distress are barred by the exclusivity provisions of the Workers' Compensation Act. The validity of these causes of action is in part dependent on Halliburton having a viable cause of action for wrongful termination. (Philips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563, 576-577.) That is because workers' compensation exclusivity does not bar claims for emotional distress where the employer steps out of its normal role and engages in conduct that "exceed[s] the normal risk of the employment relationship." (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 756 [emotional distress claim arising from unlawful harassment not preempted]; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1492 [emotional distress claim arising from unlawful discrimination not preempted]; Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 972 [emotional distress caused by employee's reliance on employer's fraudulent misrepresentations to induce employment not preempted].) Accordingly, to the extent Halliburton's emotional distress causes of action are based on Remington's actions in discharging him, they are not subject to summary adjudication.
But Halliburton's emotional distress causes of action appear to be largely based on the conduct of Johnson and Cisneros in, as Halliburton alleges, "falsely publishing to other staff members at [Remington], and others, that plaintiff sexually harassed two female employees" which publications were "unprivileged and understood by those persons to be defamatory." Because the underlying basis of Halliburton's emotional distress causes of action is defamation, the gist of which is damage to reputation, the harm flowing is not personal injury or a risk of employment within the purview of the workers' compensation law. (Howland v. Balma (1983) 143 Cal.App.3d 899, 904, cited with approval in Vacanti v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 814 & Shoemaker v. Myers (1990) 52 Cal.3d 1, 16; see also Operating Engineers Local 3 v. Johnson (2003) 110 Cal.App.4th 180, 185-186; Davis v. Cubalesk (1993) 12 Cal.App.4th 1583.) "[A]n injury to reputation is not the type of injury contemplated by the California Workers' Compensation Act." (Howland, at p. 904.)
Because they are not barred by workers' compensation exclusively, Halliburton's claims for intentional and negligent infliction of emotional distress are likewise not subject to summary adjudication.
II. Leave to Amend
Halliburton contends the trial court abused its discretion when it denied him leave to amend his complaint to allege Remington's vicarious liability for the assertedly defamatory statements of Johnson and Cisneros. He maintains his requests to amend his complaint (or treat Remington's motion as a motion for judgment on the pleadings) in opposition to Remington's request for clarification, correction or reconsideration was not untimely and did not raise new facts requiring additional discovery.
Conflicting policies arise in the context of our review of Halliburton's unsuccessful request to amend his pleading when faced with summary judgment: "[Code of Civil Procedure s]ection 473 provides that 'in furtherance of justice' a court may allow a party to amend its pleadings. When a request to amend has been denied, an appellate court is confronted by two conflicting policies. On the one hand, the trial court's discretion should not be disturbed unless it has been clearly abused; on the other, there is a strong policy in favor of liberal allowance of amendments. This conflict 'is often resolved in favor of the privilege of amending, and reversals are common where the appellant makes a reasonable showing of prejudice from the ruling.' [Citation.] Unfair surprise to the opposing party is also to be considered." (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296, quoting 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 1042, pp. 2620-2621; see also Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664 (Bostrom)[if either party wishes the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request leave to amend, and such requests are "routinely and liberally granted"].) It is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)
Here, the trial court ruled that in his operative complaint, Halliburton did not name Remington as a party to the defamation causes of action, nor did he allege it "authorized or ratified" Johnson's or Cisneros's actions. It further ruled Halliburton's request to amend was untimely because "[s]uch leave should have been sought before the Motion for Summary Judgment, not after same." The court relied upon Distefano v. Forester (2001) 85 Cal.App.4th 1249 for its ruling, reasoning that Distefano "trumps Bostrum[, supra, 35 Cal.App.4th at p. 1663], a [Fourth] District, Division Two[] case which by footnote expressed no opinion whether leave to amend should have been granted."
For several reasons, we disagree with this reasoning and conclude Halliburton should have been given leave to amend his complaint to add Remington as a defendant to his defamation cause of action, as well as allegations that Johnson and Cisneros made their allegedly defamatory statements within the course and scope of their employment. The Distefano court stated if the evidence presented by a party opposing summary judgment shows 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." (Distefano v. Forester, supra,85 Cal.App.4th at pp. 1264-1265, citing Zavala v. Arce (1997) 58 Cal.App.4th 915, 926; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) ¶¶ 10:257 & 10:257.2, pp. 10-87 to 10-88.) In Distefano, the plaintiff did not seek leave to amend in the trial court, and the courtheld the plaintiff there could not seek leave to amend for the first time on appeal. (Distefano, at p. 1265.) Its conclusion does not extend to circumstances in which a party seeks leave to amend in the trial court. (See also Dorado v. Knudsen Corp (1980) 103 Cal.App.3d 605, 611 [" 'If either party finds, on the hearing of [a summary judgment] motion, that his pleading is not adequate . . . the court may and should permit him to amend; but in the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings' " (italics added)].) Rather, on a motion for summary judgment " '[w]here the complaint is challenged and the facts indicate that a plaintiff has a good cause of action which is imperfectly pleaded, the trial court should give the plaintiff an opportunity to amend.' " (Soderberg v McKinney (1996) 44 Cal.App.4th 1760, 1773; Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1067; Williams v. Braslow (1986) 179 Cal.App.3d 762, 773-774.)
Here,Remington first pointed out the asserted deficiencies in Halliburton's pleadings in its motion to correct, clarify or reconsider the trial court's summary judgment ruling; Halliburton made his request to amend his pleading in opposition to that motion, before the hearing took place on Remington's request. Under these circumstances, Distefano does not prevent the trial court from considering Halliburton's request, nor does it compel the conclusion that Halliburton exercised unwarranted delay in seeking leave to amend his pleading.
Second, the cases relied upon by Distefano do not persuade us that a party opposing summary judgment must seek leave to amendhis or her pleadingbefore the summary judgment hearing for the request to be timely. (See Kirby v. Albert D. Seeno Construction Co., supra, 11 Cal.App.4th at p. 1069, fn. 7 [distinguishing cases relied upon by Distefano and observingan appellant's request to leave to amend in motion for reconsideration of summary judgment was timely because it was made before entry of judgment].) Indeed, motions to amend a pleading have been appropriately granted as late as the first day of trial or even during trial in the furtherance of justice. (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965.)
In view of Code of Civil Procedure section 473 and the principles cited by our high court in Mesler v. Bragg, supra, 35 Cal.3d at p. 296, the proper analysis is to decide whether Halliburton's proposed amendment did not seek to change the essential facts of his cause of action and refers to the same injuries (even if it constitutes a change in legal theory), and whether the amendment would not unduly prejudice Remington. (Honig v. Financial Corp. of America, supra, 6 Cal.App.4th at p. 965; Berman v. Bromberg, supra, 56 Cal.App.4th at p. 945 [on a party's motion for leave to amend his or her pleading, " 'it is irrelevant that new legal theories are introduced as long as the proposed amendments "relate to same general set of facts" ' "].) Remington argued in its motion for clarification that it should not be subjected to Halliburton's defamation cause of action because it was not named in that cause of action, and its discovery and defenses had not focused on it. In seeking leave to amend, Halliburton argued it would amend its complaint to name Remington in his defamation cause of action "for vicarious liability purposes only." We are not persuaded such an amendment would result in unfair surprise or prejudice. Halliburton alleged in the "general allegations" of his complaint, incorporated by reference into his second cause of action, that "[a]t all times herein mentioned, defendants Cisneros and Johnson were employed with defendants [Remington] . . . and were plaintiff's supervisors, and were managing agents for defendant [Remington]." (Italics added.) Remington has been on notice since the filing of Halliburton's complaint that he has claimed Cisneros and Johnson were Remington's managing agents, alleged to be acting in that capacity at all times they are mentionedin the complaint.
Under the doctrine of respondeat superior, an employer may be held indirectly or vicariously liable for an employee's torts committed within the scope of employment; in general, for such liability to attach, the employee's acts must be engendered by or arise from the work. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298; see Civil Code §§ 2330, 2338; Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1427; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 811-812.) Here, the operative facts underlying Halliburton's defamation cause of action – Johnson's and Cisneros's making of statements to other Remington staff and others that Halliburton sexually harassed two female employees – are left unchanged if Halliburton were permitted to amend that cause of action to allege that those acts were performed in the scope of Johnson's and Cisnero's employment with Remington. We direct the trial court to grant Halliburton's request to amend his pleading to add such allegations and add Remington as a party to Halliburton's second cause of action for defamation.
The trial court based its ruling in part on Halliburton's failure to allege Remington authorized or ratified either Johnson's or Cisneros's conduct. However authorization or ratification by the principal is required only where an agent's alleged wrongful actions are not committed within the course and scope of employment. (Civ. Code, § 2339; Delfino v. Agilent Technologies, Inc., supra, 145 Cal.App.4th at p. 810.)
III. Motions to Compel Discovery
A. Background
In March 2005, Halliburton served discovery on Remington including special and form interrogatories and a request for production of documents. Remington served responses on April 28, 2005, objecting to and refusing to answer many of the special interrogatories and other discovery requests on various grounds including that they sought confidential or proprietary information from Remington and constituted an invasion of third party privacy.
On June 7, 2005, Halliburton's counsel acknowledged receipt of the discovery responses, acknowledged Remington had refused to answer many of the questions, and stated he would detail his concerns in a separate letter. Counsel requested a 30-day extension of time – to July 17, 2005 – to file a motion to compel further responses. Two days later, Halliburton's counsel advised Remington he would move ex parte for a 30-day extension to file a motion to compel, and did so, supporting the request by a declaration averring that "[b]ecause of numerous depositions and other matters" he had been unable to send a detailed meet and confer letter to Remington's counsel regarding the discovery responses.
After continuing the matter, the trial court denied Halliburton's motion indicating it had left unchanged the 45-day deadline for filing a motion to compel further responses. Thereafter, on June 14, 2005, three days before the 45-day deadline, Halliburton's counsel sent a lengthy "meet and confer" letter attempting to point out the deficiencies in Remington's discovery responses and seeking supplemental responses. Counsel asked Remington to advise him within 24 hours that it would produce documents, and he threatened to move to compel and seek sanctions in the absence of a response.
On June 17, 2005, Halliburton filed motions to compel further responses to its first sets of special and form interrogatories, and request for production of documents. The court initially tentatively granted the motions in part, but in its final ruling it denied the motions "for [Halliburton's] failure to engage in a meaningful meet and confer process prior to the filing of the instant motions," citing Code of Civil Procedure sections 2016.040, 2030.300, subd. (b) and 2031.310, subd. (b)(2). It ruled: "Plaintiff's Counsel requested further responses to the 124 interrogatories and documents requests 2 1/2 days prior to the filing of the instant motions. This was insufficient time in which to engage in a meaningful informal attempt to resolve . . . the discovery disputes. Counsel's statement during oral argument that he intended to meet and confer with Defense Counsel following the filing of the motions to compel further responses is a tacit admission of non-compliance with the Discovery Act's pre-filing meet and confer requirements."
B. Standard of Review
We review the superior court's discovery orders for abuse of discretion. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171; Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533.) Where there is a basis for the trial court's ruling and the ruling is supported by substantial evidence, we will not substitute our opinion for that of the trial court. (Scripps Health, at p. 533; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430.) The trial court's determination will be set aside only if it is shown that there was "no legal justification" for the order granting or denying the discovery in question. (Scripps Health, at p. 533; see also Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1612, Obregon, at p. 430.) Halliburton has the burden to establish such an abuse of discretion. (Cf. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
C. Analysis
Halliburton appears to challenge two discovery rulings: the trial court's refusal to grant him a 30-day extension to bring a motion to compel further discovery responses and the decision to deny his motions to compel discovery on grounds he had not meaningfully met and conferred with Remington's counsel before filing his motions.
With regard to the former, we conclude the trial court did not err in refusing to grant an extension for Halliburton's motions. Prior to 1986, the discovery statutes had permitted a trial court to grant such an extension on noticed motion for good cause shown, but later amendments omitted any such authority, indicating the Legislature's intent not to vest such authority in the court. (E.g., Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1409 [noting legislative history in deciding whether a trial court must deny a late-filed motion to compel documents].) The 45-day time within which to file a motion to compel discovery responses (Code Civ. Proc., §§ 2030.300, subd. (c) [written interrogatories]; 2031.310, subd. (c) [document production requests]) is mandatory and the trial court was without authority to grant Halliburton his requested extension.
As for the latter ruling denying Halliburton's motions to compel further responses, we conclude the trial court's underlying factual findings are supported by substantial evidence. In moving to compel further responses to the discovery he had propounded, the discovery statutes required Halliburton to submit declarations stating facts showing a "reasonable and good faith" attempt to informally resolve each issue presented by the motion. (Code Civ. Proc., §§ 2016.040; 2030.300, subd. (b); 2031.310, subd. (b)(2), italics added.) The trial court implicitly ruled that Halliburton's attempt to informally resolve the disputes with a single letter so late in the relevant 45-day time period was unreasonable, i.e., that it did not provide counsel with a sufficient time to engage in a meaningful attempt to resolve the objections. That conclusion is amply supported by the record, which we have summarized above. (Accord, Obregon v. Superior Court, supra, 67 Cal.App.4th at pp. 432-433 [plaintiff's counsel's single brief letter regarding interrogatory responses late in the 45-day time period supported trial court's conclusion that a greater effort at informal resolution should have been made; "the level of effort [to informally resolve discovery disputes] that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court's discretion and judgment, with due regard for all relevant circumstances"].)
The question becomes whether the trial court's outright denial of further discovery was the proper remedy for Halliburton's lack of a meaningful meet and confer effort. (See Obregon v. Superior Court, supra, 67 Cal.App.4th at pp. 433-434.) An egregious failure to make a real effort at informal resolution may justify the kind of summary denial issued by the trial court here. (E.g., Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1433, 1438-1439 [heated discussions during a deposition did not constitute a serious effort at negotiation and informal resolution; informal resolution requirement was "not fulfilled when the proponent, immediately following an objection, merely debates with the deponent's counsel the propriety of the objection"]; see Obregon, at p. 433.) We agree, however, with the Obregon court that an inadequate effort at informal resolution does not require complete denial of the requested discovery. (Id. at p. 433.) "[N]ot every finding that additional informal resolution efforts are required can be categorized as a failure so egregious as to justify summary denial of discovery. Such categorical rulings should be reserved for cases of clear intent to burden or harass, cases of clear flaunting of statutory responsibilities, cases of established track records of lack of good faith, and the like. The range of a judge's discretion is broad, and litigants cannot always predict exactly where on that broad range a particular judge might alight in a particular case." (Id. at p. 434.)
Because a central precept of the discovery system is that the discovery statutes must be construed liberally in favor of disclosure (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1108; Obregon, supra, 67 Cal.App.4th at p. 434), we agree with the Obregon court that "discovery should not be automatically denied in such circumstances; instead the trial court should consider whether it would be more appropriate to specify additional efforts which will be required before the court will turn to the merits of the discovery dispute. Relevant factors will include the history of the case and the past conduct of counsel as it reflects upon the bona fides of their efforts, the nature and extent of the actual efforts expended, the nature of the discovery requested and its importance to the case, the size and complexity of the case, the effect of expense upon litigation of the case and whether unfeasible levels of expense might force resolution on a basis other than the merits, the margin by which the moving party deviated from a reasonable and good faith effort at informal resolution under the circumstances, the predictability that an effort of the type made would be found wanting, whether supplemental responses have been served, and such other factors as are relevant under all the circumstances presented. Inasmuch as judges are duty bound to manage court calendars with a view to minimizing both delay [citation] and unnecessary expense [citation], the prospects that further informal efforts would be fruitful should also be considered. When appropriate, the party whose efforts were found wanting may be assessed with monetary sanctions." (Obregon, at pp. 434-435.)
We do not know what resolution would have resulted from application of such considerations because the trial court denied the motion solely on the basis that Halliburton's letter was insufficient to meet the Code of Civil Procedure section 2016.040 requirements. Thus, we vacate the trial court's order denying Halliburton's motions to compel further responses, and direct the trial court on remand to consider the proper remedy for his insufficient meet and confer efforts and rule accordingly. (Obregon v. Superior Court, supra, 67 Cal.App.4th at p. 435.)
DISPOSITION
The judgment is reversed and the trial court is directed to deny Remington's motion for summary judgment and grant Halliburton leave to amend his complaint to add Remington to his second cause of action for defamation on a vicarious liability theory. The order denying Halliburton's motions to compel discovery is vacated and the trial court directed to consider the proper remedy for Halliburton's insufficient attempts at an informal resolution consistent with the views expressed above.
WE CONCUR: AARON, J., IRION, J.