Judge: Craig Griffin, Case: Flores v. City of Westminster, Date: 2022-09-29 Tentative Ruling

I.        Motion to Seal (ROA 347)

Defendant City of Westminster’s Motion for an Order to File Records Conditionally Under Seal (ROA 347) is GRANTED. The document identified as Exhibit 3 (a 12-22-20 letter to Public Employees’ Retirement System re: Jose Flores) is sealed.

The letter contains confidential information regarding Plaintiff which would be protected by his right of privacy as well as Evidence Code §§ 832.5, 832.7, 832.8, and 1043. The Court finds there exists an overriding interest which would overcome the right of public access to the information; that such an overriding interest supports sealing the letter; that a substantial probability exists that the overriding interest will be prejudiced if the letter is not sealed; that the proposed sealing is narrowly tailored; and a less restrictive means is not apparent to achieve such overriding interest. (CRC, Rule 2.550(d).)

II.      Motion for Judgment on the Pleadings (ROA 344)

Defendant City of Westminster’s Motion for Judgment on the Pleadings (ROA 344) is DENIED.

Defendant moves for judgment on the pleadings as to Plaintiff’s Third and Fourth Causes of Action.

In his opposition to the motion, Plaintiff states he “is willing to dismiss the [4th] cause of action for declaratory relief.”) (ROA 378 at 2:8-9.) Plaintiff has not yet dismissed the cause of action, so the court dismisses the Fourth Cause of Action for Declaratory Relief without prejudice.

This leaves the Third Cause of Action for “Failure to Prevent Discrimination and Harassment FEHA and Gov. Code § 12940, et seq.”. Defendant argues the claim fails because Plaintiff has not alleged an underlying claim for FEHA harassment, discrimination or retaliation. (ROA 344 at 5:16-7:3.)

The cases cited by Plaintiff stand for the proposition that a § 12940(k) claim for failure to prevent discrimination, harassment or retaliation cannot stand without an underlying claim of § 12940 discrimination, harassment or retaliation. While this is true, the argument does not apply here because Plaintiff has alleged an underlying claim of § 12940 retaliation.

Plaintiff’s First Cause of Action asserts retaliation in violation of § 1102.5. Subsections (b) and (d) of § 1102.5 address retaliation and read, in full:

“(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

. . .

(d)An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised their rights under subdivision (a), (b), or (c) in any former employment.”

(Cal. Labor Code § 1102.5(b) and (d), emphasis added.)

A claim of retaliation under § 1102.5 necessarily implicates violations of statutes, rules and regulations outside of § 1102.4. This includes § 12940.

Plaintiff’s complaint alleges he was retaliated against for bringing a prior complaint of discrimination:

“For years the Westminster Police Department has, on a continuous basis, subjected Flores to a hostile work environment and retaliation for whistleblowing due to Flores obtaining a federal verdict in his favor for discrimination on the basis of age and race on August 11, 2014.” (Complaint, ¶ 8 at 2:21-23.)

“Mr. Flores has been the victim of constant, retaliation and a hostile work environment in his attempt to move his career forward. His retaliation relates to plaintiff prevailing in a federal lawsuit. Plaintiff was subject to discrimination and retaliation by management of the Department, including Commander Panella, who sat through the federal trial as the representative of the Department.” (Complaint, ¶ 10.)

“Although other officers have also been targeted by the Chief, Plaintiff has received special unwarranted and illegal scrutiny solely for the reason that he has previously brought a successful lawsuit against the Defendants.” (Complaint, ¶ 25 at 7:1-3.)

“Defendant also has an unwritten policy to retaliate and harass anyone that makes complaints for the City’s discrimination.” (Complaint, ¶ 49 at 10:11-13.)

The alleged retaliation for bringing a prior discrimination claim is a violation of Cal. Labor Code § 1102.5, only because it is an alleged violation of Cal. Govt. Code § 12940(h) which prohibits an employer from discriminating against any person who “has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”

The claim of retaliation under § 12940 is the basis of the § 1102.5 claim. Therefore, Plaintiff has sufficiently alleged § 12940(h) retaliation and may pursue his claim of failure to prevent retaliation under § 12940(k).

Plaintiff to give notice.