Filed 1/21/14 Plummer v. Coen CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

EDWARD PLUMMER, JR.,

Plaintiff and Appellant,

v.

LAVONNE COEN, et al.,

Defendants and Respondents.

 B243224

 (Los Angeles County

 Super. Ct. No. KC052996)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Salvatore Sirna, Judge. Affirmed.

Edward Plummer, Jr., in pro. per; and Jon Dieringer for Plaintiff and Appellant. 

Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant 

Attorney General, Michael E. Whitaker and Bruce Reynolds, Deputy Attorneys General, 

for Defendants and Respondents.

_______________________
2

Edward Plummer, Jr. sued the Department of Health Care Services (DHCS) and 

one of its employees, and the trial court granted summary judgment in the defendants’

favor. Plummer appeals, and we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Plummer, a former employee of DHCS, sued DHCS and its employee LaVonne 

Coen, alleging that they discriminated against him based on age and race, and also that 

they retaliated against him. The defendants moved for summary judgment, asserting that 

the causes of action were barred by the statute of limitations, res judicata, and collateral 

estoppel; that Plummer could not establish a prima facie case of discrimination or 

retaliation; that the employment decisions Plummer complained of were based upon 

legitimate management concerns and were not discriminatory or retaliatory; and that the 

causes of action against Coen all failed because claims under the California Fair 

Employment and Housing Act (FEHA) may only be raised against employers. 

Instead of filing a substantive opposition to the motion for summary judgment, 

Plummer requested a continuance of the hearing pursuant to Code of Civil Procedure1

section 437c, subdivision (h). The trial court denied the request because Plummer had 

not made the showing required by that section. The court concluded that the defendants 

had satisfied their burden as the moving party and that Plummer had not provided any 

substantive opposition to demonstrate any triable issues of material fact. Accordingly, 

the court granted the motion for summary judgment. Plummer appeals. 

DISCUSSION

I. Service of the Reply Brief

At the hearing on the motion for summary judgment, Plummer told the court that 

he had not been served with the defendants’ reply brief. The court consulted the proof of 

service that had been filed by the defendants, confirmed that the address on the proof of 

 

1 Unless otherwise indicated, all further statutory references are to the Code of Civil 

Procedure. 
3

service was Plummer’s, and then continued with the hearing. Plummer contends on 

appeal that he “testified” that he was not served; that any evidence to the contrary “must 

be considered false, misleading, and contrary to what is lawful in a court of law”; and that 

he was denied due process when the court continued with the summary judgment hearing

despite his assertion that he was not served with the reply brief.

Plummer’s contentions lack merit. The defendants submitted a proof of service 

executed by Yuriko Cuan-Claro, an employee of the Office of the Attorney General, in 

which she declared that on May 29, 2012, she served the reply memorandum by 

overnight FedEx delivery. Pursuant to section 1013, subdivision (c), service by overnight 

service is complete when the item to be served, properly addressed and prepaid, is 

deposited in a box or facility maintained by the express service carrier or given to the 

carrier’s driver or courier. The sender does not have the burden of showing that the 

served document was actually received by the addressee. (Sharp v. Union Pacific R.R. 

Co. (1992) 8 Cal.App.4th 357, 361.) Plummer has not established any error in the court’s 

reliance upon the proof of service, with confirmation from Plummer that the address 

listed there was his correct residential address, to conclude that the defendants had served 

the reply brief. 

II. Continuance Request

Plummer argues that the summary judgment must be reversed because the trial 

court failed to grant a continuance for additional discovery pursuant to section 437c, 

subdivision (h). Section 437c, subdivision (h) provides that “[i]f it appears from the 

affidavits submitted in opposition to a motion for summary judgment . . . that facts 

essential to justify opposition may exist but cannot, for reasons stated, then be presented,” 

the court shall deny the summary judgment motion or grant a continuance to allow 

additional discovery to be conducted. The party opposing the summary judgment motion 

must demonstrate by declaration that the facts to be obtained are essential to opposing the 

motion; that there is a reason to believe that the facts may exist; and the reasons why 

additional time is needed to obtain the facts. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 
4

633; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) A trial court’s decision 

whether to grant a continuance is reviewed for an abuse of discretion. (Frazee, at p. 635.)

Plummer declared that he “is informed and believes that there is essential 

controverting evidence to the defendants’ motion for summary judgment/summary 

adjudication of the issues which exist but cannot be presented at this time because the 

defendants have not produced the evidence, or will not produce the evidence for reasons 

such as the defendants[’] belief that said evidence is ‘equally available’ to both parties.” 

He wrote that the “defendants have asserted that there was an agreement, assumedly 

between the plaintiff and DHCS, regarding his retirement” and that this assertion was 

false. Plummer declared that he had requested “documents and admissions” from the 

defendants, and that he believed that “these and other discovery items are essential and 

may prove to be not only supportive of his opposition to the defendants’ motion, but may 

prove to be dispositive as well in terms of disputing” eight facts asserted by the 

defendants to be undisputed and material. He stated that his copy of his deposition 

transcript was incomplete and that he needed the complete transcript “to dispute 

defendants’ undisputed material facts relative to the evidence referenced in said 

transcripts.” Finally, he declared that the discovery could be finished by June 26, 2012.

Plummer’s declaration lacked a clear statement of what facts essential to the 

opposition existed. He made no reference to any specific facts or evidence except to say 

that he disputed the allegation that there had been an agreement between himself and 

DHCS as to his retirement. He did not identify what facts his outstanding discovery was 

expected to yield, what rebutting facts were expected to be developed through further 

discovery, or why these facts were essential to oppose the summary judgment motion. “It 

is not sufficient under the [summary judgment] statute merely to indicate further 

discovery or investigation is contemplated. The statute makes it a condition that the party 

moving for a continuance show ‘facts essential to justify opposition may exist.’ The 

declaration indicates [that] . . . depositions remained to be completed and [plaintiff] had 

not yet received his expert opinions. However, there is no statement which suggests what 

facts might exist to support the opposition to the motions.” (Roth v. Rhodes (1994) 25 
5

Cal.App.4th 530, 548.) Plummer attempts to distinguish Roth from the present case, but 

the cases are similar in that in each case the declaration submitted to support the request 

for a continuance of the summary judgment hearing failed to meet the substantive 

requirements of section 437c, subdivision (h). (See ibid.) Because Plummer provided 

only general information that discovery was not yet complete and conclusory assertions 

that the discovery would permit him to oppose the motion, as opposed to a declaration of 

the facts that he believed to exist and how they would be essential to justify opposing the 

motion for summary judgment, the trial court did not abuse its discretion in failing to 

grant his request for a continuance.

III. Substantive Challenges to the Summary Judgment Ruling

A motion for summary judgment is properly granted only when “all the papers 

submitted show that there is no triable issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) 

A defendant moving for summary judgment begins with the burden of showing that there 

is no merit to a cause of action, and the defendant satisfies this burden by showing that 

one or more elements of the cause of action cannot be established or that there is a 

complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once 

the defendant has made such a showing, the burden shifts to the plaintiff to show that a 

triable issue of one or more material facts exists as to that cause of action or as to a 

defense to the cause of action. (Ibid.) If the plaintiff does not make this showing, 

summary judgment in favor of the defendant is appropriate. If the plaintiff makes such a 

showing, summary judgment should be denied. 

Here, because Plummer does not contend that the defendants failed to meet their 

initial burden of showing there was no merit to his causes of action, we proceed to the 

analysis of the second step of the summary judgment analysis: whether Plummer 

demonstrated that a triable issue of material fact existed, precluding summary judgment. 

While we review a grant of summary judgment de novo (Intel Corp. v. Hamidi (2003) 30 

Cal.4th 1342, 1348), it is always the appellant’s burden on appeal to demonstrate that the 
6

trial court erred. (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650 

[party asserting trial court error may not rest on the bare assertion of error but must 

present argument and legal authority on each point raised].) 

A. Opposition Papers 

Plummer contends that his opposition papers were sufficient to meet his burden to 

demonstrate a triable issue of material fact. He argues that his “opposition paper clearly 

states, and where it does not state it infers, that the defendants in this case did explore, 

plan, or conspire[] to employ a hiring scheme so as to ‘circumvent’ the usual method of 

hiring so as to exclude Plummer from the hiring process.” Here, Plummer cites to two 

pages of his argument in his points and authorities filed in the trial court in opposition to 

the summary judgment motion. We have reviewed these pages and find that they do not 

set forth “specific facts showing that a triable issue of material fact exists” (Code Civ. 

Proc., § 437c, subd. (p)(2)) as to any of his causes of action. 

First, Plummer asserted, without reference to supporting evidence, that if the 

defendants had “adhered to” the “statutory constraints” that they ignored, this “would 

have prevented each and every harmful event mentioned in the plaintiff’s pleading.” This 

contention, not supported by evidence or explained in any detail, was insufficient to 

establish any triable issue of material fact. 

Next, Plummer observed that the defendants asserted that employment with the 

State of California is statutory, but that they had not identified any statute that authorized 

“the manner and methods by which the application and hiring process relative to this 

action was conducted.” He then noted that the defendants had stated that statutory 

provisions controlling the terms and conditions of his employment could not be 

circumvented. Although Plummer argues on appeal that this passage “infers” that there 

was a conspiracy to circumvent the usual method of hiring, he made no such argument in 

this passage, and he neither presented nor described any evidence of any conspiracy or 

circumventing conduct by the defendants. This argument is insufficient to demonstrate a 

triable issue of material fact. 
7

Finally, Plummer included in his opposition papers a paragraph concerning an 

alleged agreement between himself and DFCS concerning his employment in which he 

contended that there was no such agreement and that the “associated facts are disputed.” 

He provided no reference to any evidence to demonstrate a factual dispute; instead, he 

stated that discovery had been requested and that he believed it was essential, would 

support his opposition, and “may prove to be dispositive” in terms of disputing some of 

the defendants’ statements of undisputed material fact. Here, Plummer merely stated that 

he disagreed with one of the defendants’ contentions, but he identified no evidence that 

would tend to show that a triable issue of material fact existed. Plummer’s opposition 

papers failed to demonstrate that triable issues of material fact existed as to the causes of 

action in his complaint. 

B. Plummer’s Beliefs About Retaliation

In Plummer’s other paragraph of argument concerning the merits of the summary 

judgment motion, he argued that he “believes that there is a causal link between his past 

participation in protected activity and the DHCS’[s] efforts to hire around him in spite of 

his knowledge, skills and experience,” and that he “believes that his failed attempts at 

restoring his employment ha[ve] been thwarted by retaliatory actions on the part of 

DHCS staff, particularly” defendant Coen. Plummer did not support these statements of 

belief with supporting evidence. 

Plummer then stated that the actions of Coen and unnamed others “resulted in the 

but-for cause of Plummer’s problems.” He asserted that Coen was “the conduit of the 

retaliatory animus toward Plummer.” He claimed that Coen worked in the DHCS 

personnel office at all times when actions were taken against him, although to support 

these factual assertions he cited to his complaint and to a page of the defendants’ points 

and authorities. Plummer asserted, without citation to any evidence, that “Coen was at all 

times aware of Plummer’s conduct and grievances due to her position in the DHCS 

personnel section,” and concluded that “[t]o what extent Coen was involved with 

Plummer’s constructive dismissal, can only be determined through additional discovery.” 
8

At best, Plummer demonstrated that Coen worked in the personnel section of DHCS at 

times relevant to the litigation, but he did not identify any specific facts or evidence that 

tend to support an allegation of retaliatory animus, retaliation, or discrimination, and he

conceded that he had no evidence of her involvement in what he describes as his 

constructive dismissal. By this argument, Plummer has not established any error by the 

trial court in granting summary judgment, nor has he demonstrated any triable issue of 

material fact. 

IV. Request for Judicial Notice

Plummer filed a request that this court take judicial notice of a number of 

documents. First, in conjunction with his argument concerning service, Plummer 

requested that this court take judicial notice of the FedEx Airbill for the May 29, 2012,

shipment and a letter from FedEx to counsel for the defendants in which FedEx recounted

its three efforts to deliver the package and its conversations with Plummer in which 

Plummer refused delivery of the package. We deny Plummer’s request with respect to 

Exhibits A and B because these documents may not properly be judicially noticed. (Evid. 

Code, §§ 450-452.) 

Next, Plummer has requested that we take judicial notice of a series of California 

statutes and Rules of Professional Conduct (Exhibits C through F). Pursuant to Evidence 

Code section 451, subdivisions (a) and (c), we must grant Plummer’s request to take 

judicial notice of California’s statutory law and rules of professional conduct. 

Finally, Plummer asks us to take judicial notice of Exhibit G, a letter dated June 

27, 2006, addressed to the Department of Fair Employment and Housing that he contends 

demonstrates that he had “complained timely” to the Department of Fair Employment 

and Housing. This document, which appears not to have been presented to the trial court 

and therefore to be outside the record, is not a proper subject of judicial notice. (Evid. 

Code, §§ 450-452.) 
9

DISPOSITION

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

ZELON, J.

We concur:

WOODS, Acting P. J.

SEGAL, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.