Case Number: 21STCV04472    Hearing Date: March 7, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Defendant City of Los Angeles.

OPPOSITION:                      Plaintiff George Wilson.

REPLY:                                 Defendant City of Los Angeles.

Plaintiff George Wilson sues the City of Los Angeles and Does 1 through 10 pursuant to claims of (1) FEHA Disability Discrimination, (2) FEHA Failure to Engage in the Interactive Process, (3) FEHA Failure to Grant Reasonable Accommodation, (4) FEHA Retaliation, and (5) FEHA Failure to Prevent Discrimination and Retaliation.

Now before the Court is the City of Los Angeles’s opposed Motion for Summary Judgment, or in the Alternative, Summary Adjudication of these five causes of action.

For the foregoing reasons, the Court:

(1) GRANTS summary adjudication as to the Complaint’s first, second, and third causes of action;

(2) DENIES summary adjudication as to the Complaint’s fourth cause of action;

(3) GRANTS summary adjudication, in Part, as to the Complaint’s fifth cause of action insofar as the claim is premised on the City’s failure to prevent discrimination against Plaintiff George Wilson; and

(4) DENIES summary adjudication, in Part, as to the Complaint’s fifth cause of action insofar as the claim is premised on the City’s failure to prevent retaliation against Plaintiff George Wilson.

Undisputed and Disputed Material Facts and Procedural Background

Plaintiff started his employment with the City of Los Angeles (“the City”) through the Los Angeles Police Department (“LAPD”) on February 20, 1996. Plaintiff graduated from the Police Academy on August 29, 1996, and started his career as Police Officer I. After Plaintiff’s 1-year probationary period was over, he was upgraded to a Police Officer II, and transferred to Hollenbeck Division where he was assigned to Hollenbeck Patrol.

In 2005, Plaintiff was diagnosed with a tumor on his brain. On April 11, 2005, Plaintiff had surgery to remove the tumor. As a result of the surgery, Plaintiff lost the hearing in his right ear.

On March 9, 2006, after returning to work, Plaintiff was placed on light duty status – indefinite desk duty—per the LAPD Medical Liaison under the advice of Dr. Staley, assigned to the City of Los Angeles Personnel Department - Medical Services Division. On April 24, 2007, the City through Dr. Staley also unilaterally imposed another restriction on Plaintiff, specifically: “Not to be placed in a position for which essential tasks include the ability to localize sounds or to understand speech in quiet settings or when there is background noise.” The City stated that this was a permanent restriction.

As a result of the imposed restrictions, Plaintiff was assigned to Hollenbeck Division Subpoena Control. However, at various times between 2006 and 2015, Plaintiff was assigned to the Hollenbeck Detectives from Hollenbeck Patrol to assist with the detective workload. Plaintiff started carrying his own caseload, which involved investigating cases in the field and arresting suspects. At the time that Plaintiff was assigned to the Detectives Section, his rank and pay remained that of a Police Officer II despite performing the same work as a Hollenbeck Detective.

After January 2015, Plaintiff was never re-assigned back to Subpoena Control or to Hollenbeck Patrol. Instead, Plaintiff was only assigned to work Hollenbeck Detectives. Plaintiff’s duties included interviewing victims, witnesses, and suspects; performing follow-up investigations in the field; collecting and preserving evidence to support his cases; writing and enforcing search warrants and arrest warrants; assisting in the training of new detectives; participating in the Mobile Field Force Cadre; and, working as a liaison with other law enforcement agencies regarding the investigation of criminal activity. Plaintiff performed these duties despite his rank as Police Officer II and despite Memoranda of Understanding between Plaintiff’s union and the City prescribing that a lower ranking officer could work in a higher ranking position for no more than 168 consecutive calendar days and that compensation should be commensurate with the duties performed by the lower ranking officer.

On September 15, 2016, Plaintiff was prescribed a Phonak Audio V-90 312 RIC, Asl, CROS-2 BTE Binaural fitting (Bicros) Hearing Aid to improve his hearing and ability to communicate by allowing his bad right ear to transmit sound to his receiver good ear (left).

On October 2, 2018, Plaintiff completed the Selection Process Requirements necessary for the promotion to detective. On or about October 22, 2018, Plaintiff received verification from the LAPD Informing him that based on his examination score, the LAPD ranked him in the Band 5 promotion group.

On February 12, 2019, Lieutenant Mayberry, LAPD Hollenbeck Division Detective Commanding Officer directed Plaintiff to contact Medical Liaison to request reconsideration to remove the Light Duty Restrictions (desk duty only) to enable Plaintiff to meet the criteria for promotion to detective. That same day, Plaintiff contacted Sgt. Derwin Henderson of the LAPD Medical Liaison Unit – Return-to-Work Section, and Plaintiff explained, in substance, that Plaintiff could not be promoted until his restriction was removed and that Plaintiff needed an appointment with Medical Services Division to remove his restriction.

To appeal his restrictions, on March 1, 2019, Plaintiff successfully completed a Hearing in Noise Test (HINT) at the Audiology and Speech Pathology Unit, Veterans Administration Loma Linda Hospital. The test was administered without the use of Plaintiff’s prescribed hearing aids.

On or about March 5, 2019, Plaintiff submitted his appeal to be formally returned to full duty.

On March 14, 2019, Plaintiff received a letter from Arthur Manoukian, MD Medical Services Division acknowledging receipt of his Letter of Appeal and specifying that Plaintiff could retake the HINT Exam with hearing aids. Also on March 14, 2019, Plaintiff received a phone call from Natalie Bakirci of the City of Los Angles Personnel Department, recommending that Plaintiff perform the HINT Test as part of the letter of the appeal, at Plaintiff’s expense. Plaintiff declined to take the exam due either to the risk of distorting the results with hearing aids (Plaintiff’s position) or on the grounds that the test “was not the right test for his disability” (Defendant’s position).

In or around March or April 2019, Hollenbeck Sergeant Amelia Martinez, Lieutenant Mayberry’s Adjutant, told Plaintiff he was no longer allowed to perform investigative duties in the field. Plaintiff was also told that he could not interview suspects, victims, and witnesses at the station. Sergeant Martinez told Plaintiff that these directives came from the LAPD Medical Liaison.

In spite of this directive, Plaintiff’s supervisors continued to send him out to the field to perform investigative duties or to work on Hollenbeck Detective cases.

Plaintiff made continued efforts to have the LAPD’s unilateral restriction removed so he could be taken off desk-duty status and be eligible for a promotion to detective, working through legal counsel, Larry Hanna, to contact senior members of LAPD Command Staff to assist him in getting the restriction removed. Through this effort, on April 24, 2019, Mr. Hanna received an email, consisting of an email chain in which Hollenbeck supervisors discussed Plaintiff Wilson being taken out of the field due to his restrictions.

On or about September 4, 2019, the Director of the Office of Support Services sent an Intradepartmental Correspondence entitled, “Order to Cooperate with the City Personnel Department Medical Evaluation Process” to Captain-3 Richard Stabile, Hollenbeck Area Commanding Officer. This document was directed to Plaintiff for review and signature. In substance, Plaintiff was directed to comply with Medical Services’ Division’s request for a hearing test to determine his fitness for duty. Plaintiff was to complete the hearing test by September 30, 2019.

On September 16, 2019, Plaintiff performed the first part of the HINT Exam. On September 30, 2019, Plaintiff returned to take the HINT Exam. After Plaintiff took the HINT test, the results were forwarded to Carolyn Alvarez of the City of Los Angeles Medical Services Division.

On October 10, 2019, a Notice 12.3.1 from the Commanding Officer Personnel and Training Bureau posted the Police Detective Promotional List Band 5. The list number started at candidate number 111 and ended at candidate number 161. Plaintiff was listed as Candidate No. 153. (Plaintiff argues the low ranking left him at a loss in light of his academic background and professional certifications in law enforcement training.)

On February 20, 2020, Plaintiff filed his DFEH Complaint alleging that because of his disability, he was discriminated and denied hire or promotion.

On February 4, 2021, Plaintiff filed this lawsuit against the City of Los Angeles and Does 1 through 10 pursuant to claims of (1) FEHA Disability Discrimination based on failure to promote Plaintiff to detective due to hearing disability in spite of performing detective duties from 2013 onwards, (2) FEHA Failure to Engage in the Interactive Process regarding failure to promote Plaintiff in spite of his hearing disability, (3) FEHA Failure to Grant Reasonable Accommodation allowing for Plaintiff’s promotion to detective in spite of his hearing disability, (4) FEHA Retaliation by forcing Plaintiff to take a hearing test as pretext for not promoting Plaintiff to detective and stripping Plaintiff of his field duties, and (5) FEHA Failure to Prevent Discrimination and Retaliation.

On June 6, 2021, Plaintiff was promoted to the rank of Detective I and was re-assigned to LAPD Central Division.

On November 18, 2021, Plaintiff Wilson was deposed by the City, at which time he testified to various matters, including assertions that Plaintiff was not passed over for promotion when Wilson was promoted on June 6, 2021, and had not been promoted around the time of the defund the police movement, in part, because of a departmental freeze in promotions at the time, with Plaintiff eventually being promoted commensurate to his position on the promotion list.

On June 7, 2022, Plaintiff retired from the LAPD.

Now before the Court is City of Los Angeles’s opposed October 14, 2022 Motion for Summary Judgment, or in the Alternative, Summary Adjudication of the Complaint’s five causes of action.  While Defendant contends that Plaintiff voluntarily agreed to dismiss the second and third causes of action, Plaintiff neither confirms nor denies that in his Opposition. Accordingly, the Court will reach all five causes of action.

Request for Judicial Notice

Per the request of the City of Los Angeles, the Court takes judicial notice of the DFEH Complaint and City of Los Angeles Charter pursuant Evidence Code sections 452, subdivisions (c) and (h), and 453.

Evidentiary Objections

Plaintiff George Wilson’s Evidentiary Objections

Objection to Kadomatsu Decl., ¶ 9: OVERRULED.

Defendant City of Los Angeles’s Evidentiary Objections

SUSTAINED: Objection Nos. 5-9, 14-15, 17-18.

OVERRULED: Objection Nos. 1-4, 10-13, 16.

Motion for Summary Judgment or Adjudication: GRANTED in Part; DENIED in Part.

Legal Standard

A motion for summary judgment shall be granted if 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 of Civ. Proc., § 437c, subd. (c).) A party may also seek summary adjudication of an entire a cause of action or, under certain circumstances, parts thereof, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t); see Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-55; see also Public Utilities Com. v. Superior Court (2010) 181 Cal.App.4th 364, 380.) The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) If the moving party meets this burden, the burden shifts to the opposing party to make converse prima facie showing that a triable issue of material fact exists. (Ibid.) The evidence of the moving party is strictly construed, and the evidence of the opposing party liberally construed. (Crouse v. Brobeck, Phleger & Harrison (1988) 67 Cal.App.4th 1509, 1524.) Doubts as to the propriety of granting the motion must be resolved in favor of the party resisting the motion. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417.)

First Cause of Action, FEHA Disability Discrimination: GRANTED.

California courts apply the burden-shifting formula set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, under which a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he or she was a member of a protected class, (2) that he or she was qualified for and performing competently in the position she held, (3) he or she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) It is sufficient to show that one of the employer’s motives was to discriminate, even if the employer had other lawful motives in causing the adverse employment action. (University of Texas Southwestern Medical Center v. Nassar (2013) 570 U.S. 338, 343.) If the plaintiff establishes this prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by offering a legitimate nondiscriminatory reason for the adverse employment action. (Ibid.) If the employer meets this burden, the presumption of discrimination disappears, and the burden shifts back to the plaintiff to produce evidence that the employer’s reasons for the adverse employment action were a mere pretext for discrimination. (Id. at p. 356.) On a defense motion for summary judgment against a disparate treatment claim, the defendant must show either that one of these elements cannot be established or that there were one or more legitimate, nondiscriminatory reasons underlying the adverse employment action.” (Jones v. Dep’t of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379 [internal citations omitted].)

The Complaint’s first cause of action alleges FEHA Discrimination on the grounds that “Defendants subjected Plaintiff to an adverse employment action by refusing to promote him to the rank of Detective even though he ha[d] been competently performing the duties of a Detective in his assignment to Hollenbeck Detectives Division since 2013” and because “[t]he acts and conduct of Defendants stated above were on the basis of Plaintiff’s [hearing] disability.” (Complaint, ¶ 39.)  In his brief in opposition, Plaintiff argues that due to his disability, he was “hounded and bullied” for seeking promotion and told he would not be given the promotion on account of his disability; that he was forced to undergo the “fitness-for-duty” examination and only was granted the promotion after an internal appeal; and that the promotional exam score was “arguably” the product of a tampered process motivated by disability discrimination.  (Opp’n, 9:16-21.)

The City of Los Angeles seeks summary adjudication of this claim on the ground that “the undisputed facts show that Plaintiff’s promotion to detective was neither denied nor delayed because of his hearing disability” given that “Plaintiff was promoted to detective along with the other officers with similar scores on their promotional exams.” (Mot., 6:9-13.)

To support this position, the City provides responses to special interrogatories by the Plaintiff to show that the Plaintiff Wilson was promoted to Detective I along with officers who had scored similar percentages in the Selection Process Requirements for a detective promotion. (Mot., Separate Statement, UMF. No. 13 [referring to Mot., Autrey Decl., Ex. 5, (at Comp. p. 90, showing Plaintiff’s scores for promotion selection process) & Mot., Autrey Decl., Ex. 4, (at Comp. p. 39, showing response by Plaintiff to special interrogatory indicating scores for Detective I’s promotion placed Plaintiff in the “Band 5” promotion group)] & UMF No. 19 [referring to Mot., Autrey Decl., Ex. 14 (at Comp p. 174-75, showing Plaintiff was placed in Band 5 promotion category based on scores secured in promotion examination) & Mot., Autrey Decl., Ex. 15 (at Comp. pp. 177-79, showing Special Transfer Order No. 6-A, dated May 2021, in which Plaintiff, along with other officers listed in Band 5, were listed for promotion to Detective I)].)

The Court finds that this evidence carries the City’s prima facie burden of establishing a nondiscriminatory reason for the delay in Plaintiff’s promotion to a detective position between October 2018 and June 2021—i.e., the period between Plaintiff’s application and promotion—because the evidence suggests that Plaintiff was promoted to Detective I at a pace commensurate with promotions for officers placed in Band 5 of the promotion list for the LAPD.

In Opposition, Plaintiff Wilson argues that the reasons given by the City for why there was a delay in Plaintiff’s promotion are pretextual, as shown by (1) the LAPD violating its “desk duty” policy toward Plaintiff, where Plaintiff was in practice made to perform the duties of a Detective and Mobile Field Force cadre member, (2) the City deviating from the Memoranda of Understanding entered with the Plaintiff’s union by not paying Plaintiff commensurate to his work with the Hollenbeck Detectives, and (3) the City finally promoting Plaintiff four months after this lawsuit was filed. (Opp’n, 16:19-17:10.) 

The Court finds that none of these positions, as supported by the referenced evidence, amount to prima facie evidence showing that Plaintiff’s non-promotion between October 2018 and June 2021 was not based on his test scores in the detective’s promotion exam. Plaintiff has thus failed to show triable issues of material fact relating to whether his promotion delay, as based on his detective qualification scores, was pretextual.  Moreover, given that there is undisputed evidence of a freeze on promotions during the period in question (Defendant’s Undisputed Fact number 5), there is no evidence that the Defendant could have promoted Plaintiff any more quickly.

Plaintiff Wilson alternately argues that the City has refused to produce discovery related to Plaintiff’s allegations that he was discriminated against in his promotional exam, i.e., that Plaintiff’s ranking in the promotional exam was influenced by discrimination against his hearing disability. (Opp’n, 18:2-23.) For this reason, Plaintiff Wilson requests that the Court deny this motion pursuant to Code of Civil Procedure section 437c, subdivision (h)—permitting denial of summary adjudication in favor of a continuance or other order deemed proper where briefing or affidavits point to need for further discovery in opposition to summary adjudication. (Opp’n, 17:15-17, 18:24-25.)

In support of this position, Plaintiff points to evidence showing that he propounded discovery from the City requesting documents relating to Plaintiff’s “examination for the LAPD Detective position in 2018” and interrogatory responses identifying the “decision-makers who placed Defendant in Band 5 to determine if … there were any issues of disability bias,” as well as evidence showing that the City has refused these requests on the grounds the discovery sought is “sensitive,” “confidential,” and does “not relate[] to the subject matter of the litigation.” (Opp’n, 18:9-20; Opp’n, Brown Decl., Exs. B, SROGS No. 13-14 & Ex. C, RPD No. 31.)

In Reply, the City argues that this motion should not be denied on these grounds because Plaintiff has failed to propound the discovery he needs to support his position—e.g., by filing a Pitchess motion for law enforcement records—or because Plaintiff was dilatory in seeking production of evidence, making his requests only after this motion was filed. (Reply, 8:27-9:24.)

The Court agrees with the City. The record fails to reflect that Plaintiff Wilson made a Pitchess motion seeking to obtain his law enforcement records. The record also fails to reflect that Plaintiff filed a motion to compel further discovery to the City’s responses to Plaintiff’s special interrogatories and requests for production, contained as Exhibits B and C of the Opposition’s Brown Declaration. The City of Los Angeles served responses to the special interrogatories and requests for production on December 23, 2022. (Opp’n, Brown Decl., Exs. B & C, Proofs of Service.) A motion to compel further responses to these discovery requests was due 45 days after December 23, 2022 (Code Civ., Proc., §§ 2030.300, subd. (c) [interrogatories], 2031.310, subd. (c) [production]), plus two court days for electronic service (Code Civ. Proc., § 1010.6, subd. (a)(3)(B) [two additional court days for right or duty to act where service made electronically].) 45 days after December 23, 2022 was Monday, February 6, 2023, with two additional court days for electronic service pushing the final date to compel further responses to Wednesday, February 8, 2023. Plaintiff failed to so compel further responses by February 8th. (See docket.) Plaintiff has therefore statutorily forfeited the ability to produce further discovery as to these requests. (Code Civ., Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c).) The Court therefore lacks grounds to deny this motion and continue a hearing thereon. (See Davis v. Nadrich (2009) 174 Cal.App.4th 1, 8, mod. May 21, 2009 [Trial court acted within its discretion in failing to continue hearing on summary judgment motion due to a defendant’s alleged refusal to appear for a deposition, in an attorney’s action against a law firm and its partners for intentional and negligent interference with economic relations, where the plaintiff attorney never requested a continuance and did not provide reasons that would support such a request].)

Lacking grounds to deny this Motion pursuant to Code of Civil Procedure section 437c, subdivision (h), the Court concludes that Plaintiff has failed to provide evidence showing triable issues of material fact as to whether his non-promotion to Detective I until June 2021 was not based on his promotional exam scores, but rather, on some discriminatory motive of the City’s.

Summary adjudication of the Complaint’s first cause of action is therefore GRANTED.

Second Cause of Action, FEHA Failure to Engage in Interactive Process: GRANTED.

No triable issues of material fact exist as to the Complaint’s second cause of action per the material facts provided by the parties. (See Opp’n, Separate Statement, UMF No. 24 [undisputed that Plaintiff has abandoned Failure to Engage claim].)

No dismissal of this cause of action pursuant to Civil form CIV-110 appears in the docket.

The Court thus GRANTS summary adjudication as to this claim.

Third Cause of Action, Failure to Grant Reasonable Accommodation: GRANTED.

No triable issues of material fact exist as to the Complaint’s third cause of action per the material facts provided by the parties. (See Opp’n, Separate Statement, UMF No. 25 [undisputed that Plaintiff has abandoned Failure to Grant Reasonable Accommodation claim].)

No dismissal of this cause of action pursuant to Civil form CIV-110 appears in the docket.

The Court thus GRANTS summary adjudication as to this claim.

Fourth Cause of Action, FEHA Retaliation: DENIED.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1042 [internal citations omitted].) “Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘“‘drops out of the picture,’” and the burden shifts back to the employee to prove intentional retaliation.” (Ibid.) “The protected activity element may be established by evidence that the plaintiff threatened to file a discrimination charge, by a showing that the plaintiff mistakenly, but reasonably and sincerely believed he was opposing discrimination, or by evidence an employer believed the plaintiff was a potential witness in another employee’s FEHA action.” (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652.) “A plaintiff … need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision” to prevail on her claim. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492.)

The Complaint’s fourth cause of action alleges FEHA Retaliation against the City on the grounds that “Plaintiff engaged in legally protected activities when he reported his concerns that he was being discriminated against due to his disability” and that the City retaliated against the Plaintiff by “requiring Plaintiff to take a hearing test not required by POST guidelines to set him up for failure and to justify its decision not to promote him” and by “stripping [Plaintiff] of his investigative duties in the field.” (Complaint, ¶ 62.)

The City moves for summary adjudication of this claim on the same ground for summary adjudication of the first cause of action: “[T]he undisputed facts show that Plaintiff’s promotion to Detective was neither denied nor delayed because of his hearing disability” given that “Plaintiff was promoted to detective along with the other officers with similar scores on their promotional exams.” (Mot., 6:9-13.)

The Court finds that this argument fails to carry the City’s burden on summary adjudication because it misses the points advanced by the Complaint. The “adverse employment action” the City responds to in its motion is the failure to promote Plaintiff to a Detective I position—at least prior to June 2021. (See Mot., 6:9-13.) However, the fourth cause of action is grounded on different adverse employment actions: The City retaliating against the Plaintiff by “requiring [him] to take a hearing test not required by POST guidelines to set him up for failure and to justify its decision not to promote him” and “stripping [Wilson] of his investigative duties in the field.” (Complaint, ¶ 62 [emphasis added].) The City’s arguments and supporting evidence on motion fail to address these points. The City therefore fails to show a lack of triable issues of material fact as to the FEHA Retaliation issues alleged in the Complaint.

Summary adjudication of the fourth cause of action is therefore DENIED.

Fifth Cause of Action, Failure to Prevent FEHA Discrimination and Retaliation: GRANTED in Part; DENIED in Part.

The fifth cause of action alleged in Plaintiff’s Complaint is derivative of the first and fourth causes of action alleged therein. (Complaint, ¶¶ 70-71.)

The Court thus (1) adopts its FEHA Discrimination discussion ante to find that the City of Los Angeles has carried its burden of making a prima facie showing of lack of triable issues of material fact as to Failure to Prevent FEHA Discrimination based on Plaintiff’s hearing disability and that Plaintiff Wilson has failed to make a converse showing and (2) adopts its FEHA Retaliation discussion ante to find that the City of Los Angeles fails to make a prima facie showing of lack of triable issues of material fact as to Failure to Prevent FEHA Retaliation. (See Lilienthal & Fowler v. Superior Court, supra, 12 Cal.App.4th at pp. 1854-55 [permitting summary adjudication of a portion of a cause of action where “a motion for summary adjudication challeng[es] a separate and distinct wrongful act even though combined with other wrongful acts alleged in the same cause of action”].)

Conclusion

Defendant City of Los Angeles’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is:

(1) GRANTED as to the Complaint’s first cause of action alleging FEHA Discrimination, second cause of action alleging FEHA Failure to Engage in the Interactive Process, and third cause of action alleging FEHA Failure to Grant Reasonable Accommodation;

(2) DENIED as to the Complaint’s fourth cause of action alleging FEHA Retaliation;

(3) GRANTED, in Part, as to the Complaint’s fifth cause of action alleging FEHA Failure to Prevent Discrimination and Retaliation insofar as the claim is premised on the City’s failure to prevent discrimination against Plaintiff George Wilson; and

(4) DENIED, in Part, as to the Complaint’s fifth cause of action alleging FEHA Failure to Prevent Discrimination and Retaliation insofar as the claim is premised on the City’s failure to prevent retaliation against Plaintiff George Wilson.