Judge: Carolyn M. Caietti, Case: 37-2020-00008295-CU-OE-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Other employment Summary Judgment / Summary Adjudication (Civil) 37-2020-00008295-CU-OE-CTL VINSON VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 02/09/2024

Defendant City of San Diego's Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.

Background Plaintiff's Third Amended Complaint (TAC) alleges she started working for the City in 2011. In 2015, she started work as a Senior Homeland Security Coordinator. She was selected to lead the City's drone pilot program, had an excellent performance record and was nominated for several awards. However, on July 2, 2019, Plaintiff filed a complaint with the City Auditor's Fraud, Waste, and Abuse Hotline, identifying several City employees involved in alleging violating the Public Records Act, including the Chief of Police. That same day, Plaintiff learned a surgery (related to a previous work injury) was advanced and she needed to start her medical leave. She informed an SDPD captain and a program manager to let them know. On July 3, 2019, the City informed Plaintiff her employment was terminated. On July 16, 2019, Plaintiff learned she was no longer terminated, would report to another department and that her position or job responsibilities would be uncertain. The TAC asserts causes of action for: (i) whistleblower retaliation in violation of Labor Code section 1102.5; (ii) disability discrimination in violation of Government Code section 12940; and (iii) retaliation in violation of Government Code section 12940(h).

Preliminary Matters City's unopposed requests for judicial notice are granted and notice will be taken to the extent permitted.

The Court notes, however, that City incorrectly identified July 3, 2019 as a Tuesday. Exhibit C reflects July 3, 2019 was a Wednesday. (ROA 194.) The Court considered Plaintiff's late opposition. For further background, the Court requested courtesy copies of Plaintiff's opposition papers as none were received, including the exhibits attached to the Notice of Lodgment and a signed declaration by Plaintiff.

Plaintiff failed to comply with California Rules of Court, rule 3.1116(c) by not highlighting relevant portions of the deposition testimony.

The way the City framed the issues stated in the notice of motion makes ruling on the motion unmanageable. A defendant meets its burden of showing a cause of action lacks merit if the party shows one or more elements of the cause of action cannot be established or there is a complete defense to the Calendar No.: Event ID:  TENTATIVE RULINGS

3046450  38 CASE NUMBER: CASE TITLE:  VINSON VS CITY OF SAN DIEGO [IMAGED]  37-2020-00008295-CU-OE-CTL cause of action. (C.C.P., § 437c(p)(2).) If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, etc., 'must be stated specifically in the notice of motion...' (Cal. Rules of Court, rule (CRC) 3.1350(b).) For each issue, the City states each cause of action fails for two reasons. This is compound. Further, the issues stated in the notice go on to explain the two reasons and cite to eleven affirmative defenses. (Ex.

ROA 190 – Notice of Motion, at p. 2; cf. ROA 193 – Separate Statement,; see also, C.C.P., § 437f(1) ['A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims of damages, or one or more issues of duty....' (emphasis added)].) Even if the Court accepts the issues as framed by the first sentence in the notice, which is what is stated in the separate statement, the Court is precluded from adjudicating the issues and entering judgment.

Discussion In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must '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.) First Cause of Action – Labor Code Section 1102.5 Plaintiff's first cause of action is for violation of Labor Code section 1102.5, which protects whistleblowers in the workplace. In Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, the California Supreme Court clarified that '[Labor Code section] 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under [Labor Code] section 1102.5.' (Lawson, supra, 12 Cal. 5th at p. 718.) As the Lawson court explained, under Labor Code section 1102.6, '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.' (Lawson, supra, 12 Cal.5th at pp.

715–716.) Here, the City argues Plaintiff did not face an adverse employment action and genuine, nonretaliatory reasons exist for its adverse action. The City framed the first issue in the conjunctive ['...Fails for Two Reasons: The Cause of Action Has No Merit and the City Has Legitimate, Independent Reasons for the Unrealized Noticed Action'].

Disputed facts exist as to whether Plaintiff faced an adverse employment action. In liberally construing Plaintiff's evidence, she was terminated over the phone on July 3, 2019. Later, her email access was suspended and the HelpDesk informed her she had been terminated. Ron Villa had to direct Plaintiff's employment be reinstated. The City also acknowledges it 'initiated the separation process' and turning off Plaintiff's email. It was not until August 15, 2019, that Plaintiff's computer access and account were corrected and enabled. (UMF 46.) When Plaintiff returned from leave, she was told to report to an individual with less expertise in the same field. Upon her return from work, Plaintiff also was put in a different office space, assigned lesser duties, reported to someone with no experience in drone or cybersecurity, which was Plaintiff's expertise. The evidence that creates this dispute includes the Declaration of Tiffany Vinson, at ¶ 7; Plaintiff's Deposition at p. 128-129, 141; Plaintiff's Exhibit I – Calendar No.: Event ID:  TENTATIVE RULINGS

3046450  38 CASE NUMBER: CASE TITLE:  VINSON VS CITY OF SAN DIEGO [IMAGED]  37-2020-00008295-CU-OE-CTL Declaration of John Valencia, at ¶ 9-10; Plaintiff's Ex. K – Text Messages between Plaintiff and Ron Villa; Plaintiff's Exhibit L – Email from Ron Villa. Since the City framed the issue in the conjunctive, this alone requires the Court to deny adjudication on Issue No. 1.

Notwithstanding, disputed facts also exist as to whether the City had a genuine, nonretaliatory reason for its adverse action. The City's main argument is that the Integrated Pilot Program (IPP), of which Plaintiff was a part of, was transitioning to the Economic Development Department (EDD) and there was already a coordinator assigned in the Economic Development Corporation, a partner organization of the EDD on other commerce-related projects. Plaintiff's role would not be needed. But Plaintiff's evidence creates a factual dispute over whether Plaintiff and the other coordinator's roles, experience and missions were comparable. Per section 1102.6, the employer 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.) Here, even if the transition was to occur, disputed facts exist as to whether the City's decision to use an allegedly lesser experienced individual from a partner organization with less relevant experience was legitimate. (UMF 17-18, 21.) The evidence that creates this dispute includes Plaintiff's Exhibit F – Deposition of Harrison Pierce and Plaintiff's Exhibit M - Declaration of Samantha Troung.

For these reasons, summary adjudication as to the first cause of action is DENIED.

Second Cause of Action – Disability Discrimination As explained in Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32-33: 'When seeking summary judgment or summary adjudication in an employment discrimination case, the burdens established by the McDonnell Douglas framework are altered. The 'employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.' (Citation.) If the employer satisfies its initial burden, it ' ' 'will be entitled to summary [adjudication] unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. In short, by applying McDonnell Douglas's shifting burdens of production in the context of a motion for summary [adjudication], 'the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.' ' ... Thus, ' '[a]lthough the burden of proof in a [discrimination] action claiming an unjustifiable [termination] ultimately rests with the plaintiff ..., in the case of a motion for summary ... adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue.' ' ' ' (Citation.) '[F]rom commencement to conclusion, the party moving for summary [adjudication] bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.' (Citation.) Whether judgment as a matter of law is appropriate will depend on a number of factors, including the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case. (Citation.) However, many employment cases present issues of intent and motive, issues not determinable on paper. Such cases 'are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.' (Citation.)' Here, again, the issue is framed in the conjunctive. ['Fails for Two Reasons: Plaintiff Cannot Establish a Prima Facie Case and the City's Unrealized Noticed Action was Based on Legitimate, Nondiscriminatory Factors]. The City first reasserts Plaintiff did not suffer an adverse employment action. For the reasons discussed above, disputed facts exist and adjudication of the whole issue is precluded.

Notwithstanding, the City next argues Plaintiff 'cannot demonstrate others similarly situated and not within the protected class were treated more favorably than Plaintiff.' (Memo., at p. 17:18-29.) No legal authority is cited in support. Third, the City reasserts it had legitimate, nondiscriminatory reasons for moving the IPP and making the staffing decisions it did. Again, as discussed above, disputed facts exist.

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3046450  38 CASE NUMBER: CASE TITLE:  VINSON VS CITY OF SAN DIEGO [IMAGED]  37-2020-00008295-CU-OE-CTL For these reasons, summary adjudication as to the second cause of action is DENIED.

Third Cause of Action – Retaliation Plaintiff's third cause of action alleges retaliation in violation of Government Code section 12940(h), which prohibits employer retaliation against an employee as a result of the employee engaging in certain protected conduct. The TAC alleges Plaintiff engaged in protective activity when she complained she had been discharged due her disability and the City took adverse employment action against her. (E.g., TAC, at ¶¶ 74-75.) The City has not met its burden the claim is barred by the statute of limitations to file an administrative complaint and for failure to timely exhaust her administrative remedies. At the time of the alleged misconduct, FEHA provided a person claiming to be aggrieved by an alleged unlawful practice must file a verified complaint with the DFEH within one year from the date on which the alleged unlawful practice occurred. (Gov. Code, § 12960, former subd. (d).) Government Code section 12960 was amended in 2020 and amended again in 2022, each amendment extending the time frame to three years. 'The current statute uses virtually identical language but allows for a period of three years.' (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 930-31, citing Gov. Code, § 12960(e).) Before Plaintiff's time to file her first administrative complaint expired, Government Code section 12960 was amended from a one year limitation to three years. (See, Gov. Code, § 12960(e)(5).) The City has not explained how the change in the law impacts this case. Presumably, under both the 2020 and 2022 amendments, it allowed Plaintiff up to three years to file her administrative complaint. Plaintiff filed her first DFEH complaint alleging disability discrimination on January 23, 2020 and is clearly timely. Plaintiff filed her second DFEH complaint alleging retaliation on December 1, 2021, which falls within three years of both July 3, 2019 and September 16, 2019.

The City framed the third issue in the conjunctive ['...Fails on Two Grounds: It is Barred by the Statute of Limitations and for Failure to Timely Exhaust Administrative Remedies and the Claim Has No Merit.'].

Thus, as it did not meet its burden that the claim is time-barred, adjudication as to the whole issue as phrased is improper. For these reasons, adjudication of the third issue is DENIED.

Concluding Orders For these reasons, the motion is DENIED in its entirety.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

City is ordered to serve written notice of the Court's final order by April 30, 2024.

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