Judge: Armen Tamzarian, Case: 19STCV18893, Date: 2023-10-02 Tentative Ruling
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Case Number: 19STCV18893 Hearing Date: October 2, 2023 Dept: 52
Defendant City of Los Angeles’s
Motion to Seal Portions of Defendant’s Motion for Summary Judgment
Defendant City of Los
Angeles moves to seal portions of records filed in support of its motion for
summary judgment. Defendant moves to
seal portions of three deposition transcripts (Cadena Decl., Exs. 9, 13, 14), an
“employee comment sheet” (id., Ex. 17), and portions of an email from
plaintiff Rocio Moreno to other police officers (id., Ex. 20). Defendant also moves to seal portions of the
memorandum and separate statement in support of its motion for summary
judgment.
California Rules of Court, rule
2.550(d) provides:
A court may order that a record be
filed under seal only if it expressly finds facts that establish:
(1) There exists an overriding interest
that overcomes the right of public access to the record;
(2) The overriding interest supports
sealing the record;
(3) A substantial probability exists
that the overriding interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly
tailored; and
(5) No less restrictive means exist to
achieve the overriding interest.
An overriding interest overcomes the
right of public access to the subject records.
These records all contain or refer to confidential personnel records of
peace officers. (Pen. Code, § 823.7 et
seq.; see City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-84.) That overriding interest supports sealing the
record. A substantial probability exists
that disclosing these records would prejudice that interest. These records contain or refer to information
“required to be kept confidential by law” that could be sealed without making
the findings required in the normal procedure to seal records. (Cal. Rules of Court, rule 2.550(a)(2).) These records must be sealed because the
personnel records themselves cannot be publicly disclosed.
The proposed sealing is narrowly
tailored. Defendant moves to seal only appropriately
selected portions of the evidence and papers in support of its motion for
summary judgment. No less restrictive
means exist to achieve the overriding interest.
Plaintiff opposes this motion only as
to sealing an email chain between Lt. Clinton Dohmen and Mark Dibell. (Partial Joinder, pp. 2-3.) Defendant did not move to seal those
exhibits. Defendant publicly filed the
emails with no redactions. (Cadena
Decl., Ex. 22; Def. MSJ Compendium, pp. 264-266.)
Disposition
Defendant
City of Los Angeles’s motion to seal records is granted. The court hereby seals the documents
defendant lodged conditionally under seal in support of its motion for summary
judgment.
Defendant City of Los Angeles’s Motion for Summary Judgment
Defendant City of Los Angeles moves for summary judgment of plaintiff’s sole cause of action for whistleblower retaliation under Labor Code section 1102.5.
Legal Standard for Summary Judgment
Summary judgment should be granted where no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (CCP § 437c(c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) Courts use a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)
Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) “The evidence presented by the moving party is strictly construed while that of the opposing party liberally construed to include any inferences reasonably deducible from the evidence.” (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119.)
Whistleblower Retaliation
In claims for violation of Labor Code section 1102.5, the plaintiff bears the initial burden “to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Lawson).) “Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Ibid.) “[A] plaintiff does not need to show that the employer's nonretaliatory reason was pretextual. Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” (Id. at pp. 715-716.)
Adverse Employment Action
Plaintiff presents triable issues of material fact on whether she was subjected to an adverse employment action. “To prove a claim of retaliation under this statute, the plaintiff ‘must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment.’ ” (Francis v. City of Los Angeles (2022) 81 Cal.App.5th 532, 540–541.) “ ‘Minor or relatively trivial adverse actions by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee do not materially affect the terms or conditions of employment.’ ” (Id. at p. 541.)
“The ‘materiality’ test of adverse employment action … looks to ‘the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,’ and the test ‘must be interpreted liberally ... with a reasonable appreciation of the realities of the workplace... .’ ” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389 (Patten) overruled on other grounds by Lawson, supra.)
The parties do not dispute most of the facts relating to this element. After plaintiff complained about other police officers (the protected activity), defendant reassigned her from one unit to another within the South Bureau Administration in the Los Angeles Police Department (the potential adverse employment action). Specifically, plaintiff was reassigned from the Special Events Unit (SEU) to the digital in-car video system review unit (DICVU). SEU coordinates police activities at large events such as football games at the Coliseum. DICVU’s chief purpose was to perform a “rigorous audit program to ensure compliance with the usage of the in car video and body worn” camera requirements “to ensure that officers were turning on the cameras, turning them off at the proper time, [and] were not tampering with the video.” (Opp. Ex. 18, Kato Depo., p. 42:16-22.) Before plaintiff was assigned there, the unit consisted solely of “three civilian personnel.” (Id., p. 43:3.) The assignment did not cause plaintiff to lose any pay, benefits, or rank.
The parties dispute whether plaintiff’s reassignment materially affected her employment. The court concludes this dispute raises a triable issue of fact. Whether plaintiff’s employment was materially affected depends on the inferences and conclusions made about what happened. For example, in Patten, the Court of Appeal held there was a triable issue of fact on this element where a school principal was transferred from a large “underperforming school” to a small “high-achieving” school that “does not present the kinds of administrative challenges an up-and-coming principal wanting to make her mark would relish.” (Patten, supra, 134 Cal.App.4th at p. 1389.)
The court cannot decide that, as a matter of law, no reasonable factfinder could conclude plaintiff’s reassignment was not an adverse employment action. Being a police officer is not an ordinary job. A police officer acquires a badge, uniform, and authority. A reasonable factfinder could conclude that assigning a police officer to do work previously done exclusively by civilians is materially adverse. That plaintiff retained the official status of being a sworn peace officer does not preclude a finding that the transfer was an adverse employment action. “[T]he realities of the workplace” (Patten, supra, 134 Cal.App.4th at p. 1389) take precedence over an employee’s nominal designation.
Moreover, a reasonable trier of fact could conclude the transfer was adverse based on the evidence of the duties performed by employees at DICVU. The record shows that unit’s primary task was to review digital video files and watch footage to audit officers’ compliance with camera requirements. When making all reasonable inferences in favor of plaintiff, a trier of fact could conclude the assignment was simple and routine such that it both was objectively worse in terms of day-to-day duties and it reduced plaintiff’s opportunities for advancement.
Causation
Plaintiff raises triable issues of material fact on the element of causation. To succeed on a claim for whistleblower retaliation, the plaintiff must show “that retaliation for an employee’s protected activities was a contributing factor in a contested employment action.” (Lawson, supra, 12 Cal.5th at p. 718.) “Plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Id. at pp. 713-714.)
Defendant argues plaintiff cannot prove causation because the people who decided to reassign her, Deputy Chief Dennis Kato and Lt. Clinton Dohmen, did not know about her protected whistleblowing activity. “[I]f a worker’s protected activities are completely unknown to his or her employer, no act by the employer can be said to have been taken ‘because of’ those activities.” (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 107.) But in most organizations, “decisions significantly affecting personnel are rarely if ever the responsibility of a single actor. As a result, unexamined assertions about the knowledge, ignorance, or motives of ‘the employer’ may be fraught with ambiguities, untested assumptions, and begged questions.” (Id. at p. 108.)
Deputy Chief Kato testified he did not know about plaintiff’s protected activities of making complaints about Sgt. Randy Rangel and Officer Al Martinez. (Cadena Decl., Ex. 12, Kato Depo., pp. 19-20.) During his deposition, Kato testified he had not heard of plaintiff’s complaint against Martinez until plaintiff’s counsel asked him about it. (Id., p. 20:6-10.) Lt. Dohmen similarly testified he knew nothing about plaintiff’s protected activities until after they began the process of reassigning her to DICVU. (Cadena Decl., Ex. 11, Dohmen Depo., pp. 25-28, 35, 48-49.)
Plaintiff, however, presents evidence raising triable issues of material fact on whether Deputy Chief Kato and Lt. Dohmen learned about her complaints from Lt. Darrel Belthius. Lt. Belthius testified that he and Lt. Dohmen spoke repeatedly about employees, including plaintiff, and could not recall whether he informed Dohmen about plaintiff’s protected activity. (Opp. Ex. 14, Belthius Depo., pp. 121-122.) He stated he did not recall telling Lt. Dohmen about plaintiff’s complaint against Officer Martinez, but “we had lots of conversations about lots of employees, so good, bad and indifferent.” (Opp. Ex. 14, Belthius Depo., p. 122:17-20.)
Lt. Belthius further testified, “I may have had a conversation with [Lt. Dohmen] about complaints but I don’t know specifically what incidents, you know, over what those regards would have been. So I’ve had conversations with Clint Dohman almost daily or every other day or so about personnel stuff. So did I? Possibly. … I may have said it. I may not.” (Opp. Ex. 14, Belthius Depo., p. 130:15-25.) He also testified that he “probably” told Lt. Dohmen “that Officer Moreno had a problem getting along with people.” (Opp. Ex. 14, Belthius Depo., p. 141:13-16.)
Lt. Belthius gave similar unclear testimony about his communications with Deputy Chief Kato. When asked if he “ever talk[ed] to Chief Kato about Officer Moreno,” Lt. Belthius testified, “Probably so, yes.” (Opp. Ex. 14, Belthius Depo., p. 144:20-22.)
Lt. Belthius did not directly testify that he informed Deputy Chief Kato or Lt. Dohmen about plaintiff’s protected activity. But he did not deny it when given the opportunity to do so. When liberally construing the evidence and making all reasonable inferences in plaintiff’s favor, this record suffices to raise a triable issue on whether the people who ultimately decided to reassign plaintiff knew about her protected activity. Plaintiff presents enough evidence to permit a reasonable factfinder to conclude Lt. Belthius bore some animus against plaintiff because of her protected activity and that he influenced the decision to reassign her to DICVU. The court cannot conclude that, as a matter of law, no reasonable trier of fact could infer retaliation was a contributing factor in reassigning plaintiff.
Legitimate, Independent Reasons
Finally, there are triable issues of material fact on whether defendant would have reassigned plaintiff even if she had made no protected disclosures. Defendant must “demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson, supra, 12 Cal.5th at p. 718.) “Under the clear and convincing standard, the evidence must be so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158, internal quotes omitted.) Courts must take this heightened burden into account when ruling on a motion for summary judgment or adjudication. (Ibid. [clear and convincing standard for punitive damages]; see Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 386 [Labor Code § 1102.6].)
Defendant presents evidence it reassigned plaintiff to DICVU for a legitimate reason: the unit needed more people. Deputy Chief Kato testified the unit had “three civilian personnel, and we were in the process of trying to hire more, but there was not going to be enough manpower to look at that many hours of video, and so I had to scramble and move people in there to support the -- the requirements of the Department.” (Opp. Ex. 18, Kato Depo., p. 43:3-8.) He further testified that “the civilian in charge” of the unit “was always asking for additional personnel.” (Id. at p. 43:16-21.)
This evidence is not enough for summary judgment. Though it is undisputed that the unit needed more people, defendant does not present undisputed evidence showing it would have assigned plaintiff, rather than someone else, there even if she had never engaged in protected activity. Defendant does not provide evidence showing it could not have hired more civilians to work in DICVU or reassigned someone else (civilian or sworn officer) there.
As for plaintiff’s performance in SEU, defendant presents disputed evidence of relatively minor and sporadic issues. For example, on two occasions, SEU could not revise a plan for an upcoming event because plaintiff was not there and had not shared the documents with others in SEU. (UMF Nos. 23, 24.) Defendant also presents testimony that plaintiff had conflicts with coworker Officer Arin Harrty. (UMF No. 12; Cadena Decl., Ex. 8, Moreno Depo., pp. 213-214.) Even if plaintiff did not dispute the underlying facts about these potential performance issues, these problems are not serious or extensive enough to meet defendant’s burden on summary judgment. Based on this record, a reasonable factfinder could conclude that defendant did not prove by clear and convincing evidence that it would have reassigned plaintiff regardless of her protected activity.
Disposition
Defendant City of Los Angeles’s motion for summary judgment is denied.