Judge: Barbara M. Scheper, Case: 20STCV22590, Date: 2023-01-19 Tentative Ruling

Case Number: 20STCV22590    Hearing Date: January 19, 2023    Dept: 30

Dept. 30

Calendar No.

Scott vs. County of Los Angeles, et. al., Case No. 20STCV22590

Tentative Ruling re:  Defendant’s Motion for Summary Judgment, or in the alternative, Summary Adjudication

Defendant County of Los Angeles (Defendant) moves for summary judgment, or, alternatively, summary adjudication, against Plaintiff Barbara Scott (Plaintiff). Summary judgment is granted.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and if not to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic Richfield).) Code of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc, § 437c, subd. (p)(2).) 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.)

Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

            The Court’s “role on summary judgment is simply to decide whether the parties possess evidence requiring the fact-weighing procedures of a trial. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492, 496.) “The purpose of the summary judgment procedure is not to try the issues, but merely to determine whether there are issues to be tried.” (Orser v. George (1967) 252 Cal.App.2d 660, 668.)

Plaintiff, an African American female, has been employed by Defendant since 1989. (UMF 6.) In the Second Amended Complaint (SAC), Plaintiff alleges that she was discriminated against and retaliated against during various incidents taking place from August 2017 to December 2018, during her employment as a probation officer at the Los Angeles County Probation Department. Plaintiff alleges that she filed two County of Policy of Equity complaints in July 2018 regarding mistreatment and discrimination by Defendant. (SAC ¶ 11.) The first complaint was based on an incident in which Plaintiff was “falsely accused of preferential treatment to black youth offenders” after distributing hair products to the offenders. (SAC ¶ 12.) In the second alleged incident, after Plaintiff requested a banana from kitchen staff on their break and the “matter was escalated,” the staff prominently displayed in the kitchen unspecified written comments regarding Plaintiff’s conduct. (SAC ¶ 13.) Plaintiff alleges that she was wrongfully reprimanded and then terminated by Defendant in retaliation for her filing of the complaints. (SAC ¶¶ 6-7.)

Plaintiff has asserted three causes of action against Defendant, for race discrimination under FEHA, failure to prevent discrimination under FEHA, and whistleblower retaliation under Govt. Code § 8547, et seq.

Defendant moves for summary judgment on Plaintiff’s first and second causes of action on the basis that Plaintiff has failed to show timely exhaustion of her administrative remedies under FEHA. The Court agrees.

Before filing a civil complaint under FEHA, a plaintiff must exhaust administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) and then obtain a right-to-sue notice. (Govt. Code §§ 12960, 12965; see Rojo v. Kliger (1990) 52 Cal.3d 65, 83.) “[T]he right-to-sue letter is a prerequisite to judicial action.” (Rojo, 52 Cal.3d at 83.) The administrative complaint must be filed within one year after the alleged unlawful act occurred. (Govt. Code § 12960; Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412.)

Here, it is undisputed that Plaintiff filed her complaint with the DFEH on December 14, 2019. Much of Defendant’s alleged discriminatory conduct took place prior to December 14, 2018, outside of the limitations period. (SAC ¶¶ 11-14.) Furthermore, Plaintiff’s FEHA claims would fail even if not time-barred, because she has failed to show that she has received a right-to-sue letter from the DFEH.

            Plaintiff has submitted an exhibit which she claims to be her right-to-sue letter. (Plaintiff’s Exhibits (PE), Ex. 1.)  The exhibit appears to be the printout of an online claim submission form from the website of the California Rights Department, and is entitled, “California Rights Department [¶] Right to Sue.” The text under the title reads, “This document is not your proof of submission. Complete the submission process within 30 days to initiate CRD review. After 30 days, all information will be erased from the CRD website.” At the end of the document, there is a disclaimer stating, “NOT A LEGALLY BINDING DOCUMENT. This document does not constitute proof of filing of a Right to Sue form with the CRD.” (Id. p. 2.) Though it is not clear precisely what this document is, it is not a right-to-sue notice. Plaintiff has not presented any other evidence of a timely right-to-sue notice for her claims, and so has failed to demonstrate exhaustion of the prerequisite administrative remedies under FEHA. Accordingly, the Court grants summary judgment for Defendant on the first and second causes of action.

            Even if Plaintiff had evidence of a right to sue letter, the Court would still grant the motion.  Plaintiff offers no admissible evidence in support of her opposition.  Plaintiff’s counsel purports to submit documents, including Plaintiff’s unsworn “narrative,” without laying any foundation and without offering a hearsay exception to many of the documents.  Furthermore, even if the documents were admissible, there is not a single suggestion that Plaintiff’s complained of treatment is related to her race.

            Plaintiff’s third cause of action is for retaliation under the California Whistleblower Protection Act (CWPA). (Govt. Code §§ 8547, et seq.) The CWPA “prohibits retaliation against state employees who ‘report waste, fraud, abuse of authority, violation of law, or threat to public health.” (Levi v. Regents of University of California (2017) 15 Cal.App.5th 892, 902.) The CWPA applies to “employees” of a “state agency,” where “state agency” is defined as “every state office, officer, department, division, bureau, board, and commission.” (Govt Code §§ 8547.2, subd. (f); 11000, subd. (a).)

            Defendant moves for summary judgment on the retaliation cause of action on the grounds that it is not a “state agency,” and that its employees, including Plaintiff, are not “employees” within the meaning of the CWPA. The Court agrees. It is undisputed that Plaintiff was not an employee of the State of California during the relevant time period. (UMF 6.) Plaintiff concedes that her claims do not fall within the scope of the CWPA, but suggests that she may still seek redress pursuant to Labor Code § 232.5(c) (prohibiting employers from retaliating against an employee who discloses information about working conditions). Plaintiff cannot assert a new cause of action through her opposition to Defendant’s motion for summary judgment. Accordingly, summary judgment is granted for Defendant on the third cause of action.