Judge: Barbara M. Scheper, Case: 20STCV31818, Date: 2023-10-20 Tentative Ruling

Case Number: 20STCV31818    Hearing Date: October 20, 2023    Dept: 30

Dept. 30

Calendar No.

Bunag vs. City of Los Angeles Police Department, et. al., Case No. 20STCV31818

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

Defendant City of Los Angeles Police Department (Defendant) moves for summary judgment, or, in the alternative, summary adjudication against Plaintiff Mary Ann Bunag (Plaintiff). Summary judgment is granted for Defendant.

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 has been employed by Defendant as an LAPD officer since 2004, and began working in the West Traffic Division in February 2018. (Defendant’s Undisputed Material Facts (DUMF) 1.) Around February 2020, Plaintiff applied for a promotional position as a “Police Officer III-Collision Investigator” (P3-CO) in West Traffic Division. Twelve applicants, including Plaintiff, were interviewed for the position by a panel of three interviewers: Lt. Anthony Verret, Lt. Theodore Edwards, and Sgt. Douglas Panameno. (DUMF 9.) Plaintiff was the only woman interviewed. (Plaintiff’s Evidence (PE), Ex. 2 [12].)

To assess the applicants, after conducting the interview, the interviewers each assigned the interviewee numerical scores on the scale of 0 to 3 based on four categories: “Technical Knowledge,” “Training Skills,” “Communication and Interpersonal Skills,” and “Personal Characteristics.” The panel members then collectively discussed the applicant, having the chance to revise their scores. The average of the three panel members’ scores became the applicant’s final score. (Defendant’s Evidence (DE), Ex. 3, ¶ 2 [111].)

On March 3, 2020, Officer Loi T. Hinh (Hinh) was chosen for the P3-CO position. Hinh received a final rating of 3.0 from the interview panel. Plaintiff received a rating of 2.5. (PE, Ex. 2 [12].) On March 16, 2020, Plaintiff filed an internal complaint of gender discrimination with the LAPD Internal Affairs Division, which concerned her P3-CO application and other incidents. (PE, Jingozian Decl. ¶ 6, Ex. 4 [16].)

Pursuant to CCP Section 437c(b)(3), “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed.  The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed.  Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.  Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”

            Pursuant to CRC 3.135(e), the opposition’s separate shall set forth in the right hand column, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, an unequivocal response stating whether the fact is disputed or undisputed. An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted.  Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line number.

            Here, Plaintiff’s response separate statement is almost wholly improper.  Defendant’s separate statement set forth 57 facts in 30 pages.  Plaintiff’s response was 89 pages long.  More importantly, Plaintiff’s response to Defendant’s material facts is replete with objections and legal arguments and often entirely unresponsive to the fact alleged.  Plaintiff frequently stated a fact was undisputed but also disputed.  For example, Undisputed Fact No. 4 states that Plaintiff’s previous lawsuit was dismissed with prejudice on January 31, 2020.  Plaintiff responds that the fact is undisputed that her case was dismissed with prejudice but disputed “to the extent that this case arises from different facts and leadership, showing that any inferences that Defendant draws from this are unsubstantiated.”  Plaintiff then cites to the complaint.  The complaint is not evidence and Plaintiff’s purported dispute is nothing more than argument utterly unresponsive to the fact in question.  Similarly, Undisputed Fact No. 6 simply quotes an allegation from the complaint.  Plaintiff responds that it is undisputed that this is an allegation of her complaint but disputed to the extend Plaintiff was not promoted because of her gender.  As a result of Plaintiff’s violations, the Court deems the following material facts undisputed;  4, 6, 7, 9-16, 18-20, 23,25-30, 32-35, 38-46, 49-50, and 52-56.

            More damaging still is that Plaintiff has not laid a foundation for any of the evidence she purports to offer.  All of Defendant’s objections are sustained eliminating from consideration Plaintiff’s Exhibits 2, 3, 4, 5, 6, 8, 10, 11, 12, 13, 16 and 19.

First Cause of Action for Gender Discrimination

Plaintiff’s first cause of action for discrimination under FEHA alleges that Defendant’s selection of Hinh over her was due to her gender. (Comp. ¶¶ 10, 22.)

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) A qualified individual is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation. (Nealy, 234 Cal.App.4th at 378.)

“A defendant employer's motion for summary judgment slightly modifies the order of these [prima facie] showings. If, as here, the motion for summary judgment relies in whole or in part on a showing of nondiscriminatory reasons for the [adverse employment action], the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the [action]. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.] In determining whether these burdens were met, we must view the evidence in the light most favorable to plaintiff, as the nonmoving party, liberally construing her evidence while strictly scrutinizing defendant's.” (Wilkin v. Community Hospital of the Monterey Peninsula (2021) 71 Cal.App.5th 806, 822 [quoting Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097].)

Once a plaintiff has established a prima facie case, there is a “rebuttable” but “legally mandatory” presumption of discrimination. (Guz, 24 Cal.4th at 355.) The burden then shifts to the defendant to rebut the presumption by producing admissible evidence that the defendant’s “action was taken for a legitimate, nondiscriminatory reason.” (Id. at 355-356.) If the defendant meets its burden, “the presumption of discrimination disappears,” and the plaintiff must then show that the defendant’s legitimate reason was merely pretextual. (Ibid.) “The [employee] cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. [Citations.] Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer did not act for the [the asserted] non-discriminatory reasons.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 863.)

Here, Defendant has met its initial burden to present evidence of nondiscriminatory reasons for selecting Hinh over Plaintiff. It is undisputed that the interview panel assigned Hinh a higher rating than Plaintiff for the assessment. (DUMF 11; DE, Ex. C.) The interview ratings show a nondiscriminatory reason for Hinh’s selection, which would permit a trier of fact to find that those ratings were the basis for choosing Hinh over Plaintiff.

To raise a triable issue, Plaintiff must point to evidence that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. (Wilkin, supra, 71 Cal.App.5th at 822.) Plaintiff argues that Defendant’s reasons for selecting Hinh were pretextual based on the fact she was an objectively more qualified candidate than Hinh. Plaintiff was certified as a traffic collision investigator, and had worked in the traffic division for two years at the time of the P3-CO interview. (PE, Ex. 3.)  However, while Plaintiff claims that Hinh did not have this certification and had not worked in the traffic division for eight years, Plaintiff has not produced any admissible evidence in support of these facts. The only evidence cited by Plaintiff on this subject is from Plaintiff’s counsel’s own questions during Douglas Panameno’s deposition. (PE, Ex. 15 [54]; DUMF 7.) Absent proper evidence of Hinh’s qualifications, Plaintiff has not shown that she was a more qualified candidate, so as to support a finding of intentional discrimination.

            Plaintiff also challenges the rating system used by the interview panel, arguing that it failed to consider her qualifications and experience. While the interview evaluation appears to have been largely subjective, “[t]he fact that [an] assessment was based upon subjective criteria does not, by itself, demonstrate pretext. . . . absent some evidence that the station made its decisions based upon [the protected characteristic], the mere use of subjective criteria does not permit us to second guess the employer's business judgment.” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1005.) Although Plaintiff questions the interviewers’ failure to consider her relative experience and qualifications, she has not produced evidence of “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action.” (Serri, supra, 226 Cal.App.4th at 863; see Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009 [“[plaintiff] raised triable issues concerning whether the actions of Department were reasonable and well considered. . . . What a trier of fact could not reasonably conclude, however, was that [employer’s] stated reasons were implausible, or inconsistent or baseless”].) Plaintiff “must do more than establish a prima facie case and deny the credibility of the [defendant's] witnesses.” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 76.)

Plaintiff also argues that she was discriminated against when she was required to complete six Deployment Periods (DP) to move out of Watch 3 (a less favorable shift), whereas two male officers were moved out of Watch 3 after three DPs. However, this claim was not raised in Plaintiff’s Complaint (see Comp. ¶¶ 18-24), and Plaintiff has not shown how the alleged incident reflects discrimination in her application for the P3-CO position.  Moreover, Plaintiff has not properly disputed, with admissible evidence, Defendant’s explanation that the other two officers were transferred before Plaintiff was because they applied for a transfer before she did.

Second Cause of Action for Retaliation

“[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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] 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.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Plaintiff’s second cause of action alleges that she was retaliated against for her March 16, 2020 internal gender discrimination complaint when, on April 28, 2020, she received an Employee Comment Card from Sergeant La Nita Elias regarding an incident in which she did not perform a pre-deployment check of her body camera. (Comp. ¶ 32.) Plaintiff also alleges that she was retaliated against when she was warned by Lieutenant Anthony Verret for taking family illness leave on July 4, 2020. (Comp. ¶ 34.) Plaintiff had also filed an April 12, 2018 lawsuit against Defendant for gender discrimination, sexual harassment, and retaliation, which she argues motivated the reprimands. (Defendant’s RJN, Ex. A.)

Defendant has presented evidence that the two disciplinary actions were taken for legitimate, non-retaliatory reasons. For the body camera incident, Elias states, “in early 2020, I recall there was a concerted effort to ensure officers complied with the BWV [Body Worn Video] procedures and it was communicated to officers that command staff wanted Comment Cards to be issued for an officer’s failure to comply with the BWV procedure.” (DE, Ex. 5, Elias Decl. ¶ 3.) Elias states that she issued the Comment Card to Plaintiff after an audit found that Plaintiff failed to comply with the BWV procedures on March 26, 2020. (Id. ¶ 4.) Verret states that he did not think that Plaintiff had notified anyone of her absence on July 4, 2020, and was unable to contact her. (DE, Ex. 3, Verret Decl. ¶ 7.) Verret decided not to issue a Comment Card to Plaintiff for the absence because another sergeant could not recall whether Plaintiff had informed him of her work status on July 4. (Ibid.)

Defendant also presents evidence showing that the supervisors involved were unaware that Plaintiff had complained about gender discrimination or that Plaintiff had previously filed suit against Defendant. In her declaration, Elias states that she was unaware of Plaintiff’s internal complaint or prior lawsuit at the time that she issued the body camera warning to Plaintiff. (DE, Ex. 5, Elias Decl. ¶ 5.) Verret likewise states that he did not learn of Plaintiff’s complaint or prior suit until after the July 4, 2020 reprimand. (DE, Ex. 3, Verret Decl. ¶ 10.) Plaintiff has not produced any evidence disputing her supervisors’ lack of knowledge. (DUMF 36-37.) Plaintiff argues that the officers’ knowledge may be inferred circumstantially, but has presented no evidence demonstrating that such an inference would be appropriate. Plaintiff’s evidence that another officer, Wilian Franco, heard “rumors” about the investigation into Plaintiff’s internal complaint does not create a triable dispute as to Elias’s or Verret’s knowledge of the complaint or suit. (PE, Ex. 19 [90].)

The undisputed fact that neither Elias nor Verret were aware of Plaintiff’s protected activity precludes her claim for retaliation. “Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 70.) Given that both decisionmakers lacked knowledge of Plaintiff’s underlying protected activity, Plaintiff has not shown any dispute as to whether the adverse actions were motivated by that activity.