Filed 4/21/17 Elias v. Pacific Alliance Medical Center CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


DAVID ELIAS,

Plaintiff and Appellant,

v.

PACIFIC ALLIANCE MEDICAL CENTER et al.,

Defendants and Respondents.


G052823

(Super. Ct. No. 30-2013-00670766)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
David Elias, in pro. per.; Law Office of Christopher A. Markelz and Christopher A. Markelz for Plaintiff and Appellant.
Doyle Schafer McMahon, Raymond J. McMahon and A. Elena Schionning for Defendant and Respondent.
* * *
Plaintiff David Elias sued his former employer, defendant Pacific Alliance Medical Center (Pacific), for wrongful termination in violation of public policy. Elias alleged he was retaliated against for reporting thefts by certain coworkers. He was fired, however, when he gave a female coworker underwear as a birthday gift. The matter proceeded to a bench trial and, after Elias presented his case, the court granted Pacific’s motion for judgment under Code of Civil Procedure section 631.8. Elias appeals, contending the evidence does not support the judgment, and he challenges the subsequent costs award. We affirm.

FACTS

The record in this case presents considerable difficulty in setting forth the facts. There was only one witness at trial: Linda Lopez, the director of human resources for Pacific. The limited testimony Elias elicited from her leaves gaping holes in the narrative Elias attempted to craft. Most of the trial transcript consists of Elias offering his own commentary on his opaque questions for Lopez and the trial court struggling to make sense of the questions being asked. We do not incorporate Elias’s editorializing into our statement of facts, as it is not admissible evidence. Elias did not testify under oath. Further, Elias’s brief provides scant record references in his statement of facts, and even scanter references to admissible evidence. What follows is our best attempt at setting out a coherent chronology based on the admissible evidence.
Elias was a security guard for Pacific. His car had been vandalized on multiple occasions while in his designated employee parking lot and he asked permission to park his car in a lot closer to the hospital. Elias presented Lopez with a copy of a police report regarding the vandalism. He contended that employees of Pacific were responsible (though there was no evidence presented to support this). Lopez denied his request to park closer to the hospital, because if Elias were given permission, she would also have to permit other employees, and there would be insufficient parking. Lopez attempted to follow up on Elias’s complaint by viewing surveillance footage but was told that from the camera’s vantage point there would be no way to substantiate who vandalized the car.
On one occasion a doctor on staff bought dinner for some of the security guards. Elias apparently complained to human resources that he “didn’t get dinner or he didn’t get as much or he didn’t get called to eat in the first round or something to that extent.” Elias wrote a memorandum around that time to Lopez claiming that a certain doctor gave a security guard money to buy dinner for all the guards on shift, but the guard only brought Elias “left over’s some[one] gave him from the cafeteria and promised to buy [Elias] lunch ‘tomorrow.’” This is apparently the theft that Elias claims he was fired for reporting.
On another occasion Elias was given a written warning for excessive tardiness to work. He complained that the real reason for the warning was that a coworker did not like him, but Lopez responded that a coworker’s dislike does not impact the time stamps showing when he clocked in for his shifts.
Elias was fired when he gave a female coworker underwear as a gift. Elias asked the coworker if he could give her a gift, without specifying what the gift was, and she agreed to receive it. The coworker found the gift to be highly offensive and it made her feel very uncomfortable and anxious. The personnel memorandum Lopez drafted explaining the firing states, “As a security officer he was responsible for the safety of employees, patients and visitors . . . his behavior demonstrated that he could no longer be trusted to use sound judgment.”
After Elias rested, Pacific moved for judgment under section 631.8. The court granted the motion and subsequently issued a statement of decision. The court noted that Elias “admitted to the court during argument that he was an at-will employee.” The court found that the public policies allegedly violated by Elias’s firing were insufficient to trigger liability. “Even if there were a true public policy involved, the evidence simply did not show that the alleged conduct occurred. Further, the evidence showed that the alleged conduct was not a substantial motivating factor in Mr. Elias’ discharge.” “The court finds, unequivocally, that the law entitled [Pacific] to discharge Mr. Elias for his inappropriate gift to a co-worker and thus [Pacific] had a legitimate reason to discharge Mr. Elias.”
In announcing its ruling, the court also set an order to show cause regarding sanctions for filing a frivolous lawsuit under . . . section 128.5.
The court subsequently sanctioned Elias $250 in favor of each party named in the lawsuit. Elias timely appealed.

DISCUSSION

Elias first contends the evidence does not support the judgment. We disagree.
Section 631.8 provides, “After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party.”
“‘The purpose of . . . section 631.8 is to enable a trial court which, after weighing the evidence at the close of the plaintiff’s case, is persuaded that the plaintiff has failed to sustain his burden of proof, to dispense with the need for the defendant to produce evidence.’” (National Farm Workers Service Center, Inc. v. M. Caratan, Inc. (1983) 146 Cal.App.3d 796, 807.) “An order granting a defense motion for judgment under . . . section 631.8 in a nonjury trial is reviewed under the substantial evidence standard.” (Fink v. Shemtov (2012) 210 Cal.App.4th 599, 608.)
Elias pleaded a single cause of action for wrongful discharge in violation of public policy. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).) “[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action . . . .” (Id. at p. 170.) The policy “must be: (1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.)
The only claim Elias makes that comes close to satisfying these elements is that he was fired for reporting the theft of his lunch money. Assuming, without deciding, that such a claim embodies the requisite public policy characteristics, there was no compelling evidence his lunch money was stolen, or that he was fired as a result. Our review of the trial court’s findings are highly deferential under the substantial evidence standard, and since the court was entitled to weigh the evidence, it was within its authority in determining the evidence did not support Elias’s claim.
Plaintiff also contends the recipient of the underwear consented to the gift. However, his argument misses the point. Even if the recipient had consented, as an at-will employee, Pacific could lawfully fire Elias for giving underwear as a gift. There is no public policy protecting workplace gifts of underwear.
Elias next contends the award of costs in favor of Pacific was improper under the California Fair Employment & Housing Act (FEHA) (Gov. Code, § 12900 et seq.). “Costs that would be awarded as a matter of right to the prevailing party under . . . section 1032[, subdivision (b)] are instead awarded in the discretion of the trial court under Government Code section 12965[, subdivision (b)]. By making a cost award discretionary rather than mandatory, Government Code section 12965[, subdivision (b)] expressly excepts FEHA actions from Code of Civil Procedure section 1032[, subdivision (b)’s] mandate for a cost award to the prevailing party.” (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 105.)
But Elias did not bring a FEHA claim. He asserted a single cause of action for wrongful discharge in violation of public policy. And while he cited Government Code section 12900 in his complaint in a general way, he did not articulate any claim for employment discrimination based on a category protected under FEHA. (See Gov. Code, § 12921, subd. (a) [“The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status is hereby recognized as and declared to be a civil right”].) This simply is not a discrimination case, or any other type of FEHA case, and thus the FEHA cost provision does not apply.
On appeal, Elias asserts various theories of negligence against Pacific arising out of the vandalism of his vehicle. However, he did not litigate those claims in the trial court and may not assert new theories of liability for the first time on appeal. We thus do not consider those claims. Moreover, his only argument is that, statistically there is a “1 in 640,000,000 chance, of being a victim of vandalism five times, in the zip code, in 2013,” and that this “proves his case.” Assuming that is an accurate statistic, that only proves, at most, the vandalism was nonrandom, not that Pacific had anything to do with it.

DISPOSITION

The judgment is affirmed. Pacific shall recover its costs incurred on appeal.



IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



THOMPSON, J.