Judge Deirdre Hill, Case 20TRCV00045 2022-08-23 Tentative Ruling

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Moving Parties: Defendants City of Hermosa Beach and Hermosa Beach Police Department

Defendants City of Hermosa Beach and Hermosa Beach Police Department’s Motion for Summary Judgment or, in the alternative, Summary Adjudication of Issues

On January 15, 2020, plaintiff Michael Frilot filed a complaint against defendants City of Hermosa Beach (“City”), Hermosa Beach Police Department (“HBPD”), and Suja Lowenthal, City Manager (“Lowenthal”) for (1) violation of POBRA, (2) declaratory relief, (3) whistleblower retaliation (Labor Code §1102.5), and (4) writ of mandate (CCP §1085). On February 7, 2020, plaintiffs filed a substitution of attorney.

On September 3, 2020, the court granted defendants’ motion to bifurcate, determining The causes of action for writ of mandamus and POBRA are bifurcated for trial from the cause of action under Labor Code §1102.5. On September 3, 2020, the court entered an order of dismissal as to Lowenthal.

On September 14, 2020, plaintiff filed the operative First Amended Complaint (“FAC”) for (1) violation of POBRA, (2) declaratory relief, (3) Labor Code §1102.5, and (4) writ of mandate (CCP §1085.)

On October 20, 2020, the court granted defendants’ Pitchess motion. On January 13, 2021, the court conducted an in-camera review.

On June 3, 2022, the court granted defendants’ subsequent Pitchess motion. On June 21, 2022, the court conducted an in-camera review.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “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.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c). “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014 (citation omitted).

Defendants City and HBPD (collectively, “Movants”) request that the court to enter summary judgment in their favor and against plaintiff pursuant to CCP §437c on the ground that there is no triable issue of material fact and defendants are entitled to judgment as a matter of law. In the alternative, Movants request summary adjudication as to each of the causes of action. As Movants note in their motion, HBPD is a department of the City and not a separate entity. See Notice of Motion at pg. 2, fn. 2.

In the FAC, plaintiff alleges that he is a sworn police officer with the HB Police Department. During his career, he has not been subject to any disciplinary actions and was assigned as a Field Training Officer and was on the Acting Watch Commander list. Plaintiff completed and passed all relevant promotional examinations and was promoted to the position of Police Sergeant by now retired Chief Sharon Papa, on April 1, 2018. During his time as a Sergeant, he performed in a manner that generally met standards and was continually given special assignments. During the promotional process, plaintiff reported false statements made by Lt. Dorothy Scheid to Chief Papa and his immediate supervisor, the FTO Sergeant. Thereafter, Lt. Scheid and Captain Milton McKinnon orchestrated actions to circumvent Chief Papa’s promotional decision and remove plaintiff from his sergeant position.

Plaintiff further alleges that Scheid and McKinnon immediately began treating plaintiff differently from other probationary sergeants. On March 11, 2019, without any prior approval and without any apparent authority, McKinnon demoted plaintiff back to the rank of officer. The punitive action and/or denial of promotion was for reasons other than merit, and plaintiff was not afforded an opportunity for administrative appeal. McKinnon also placed him on paid administrative leave for two days, ordering him to leave immediately. The following day, McKinnon removed plaintiff form the Acting Watch Commander list, reducing plaintiff’s salary even though it is believed that McKinnon had allowed officers with less seniority than plaintiff and at least one officer that was under criminal investigation by the FBI to serve in the Acting Watch Commander capacity.

Movants’ objections to portions of the Declaration of Corey W. Glave are SUSTAINED as to objection nos. 1 and OVERRULED as to objection nos. 2-6.

Plaintiff initially contends that Movant’s motion should be denied because it does not comply with Code of Civil Procedure § 437c and it does not dispose of each cause of action to warrant summary judgment or summary adjudication. See Opposition at pp. 13-14.

In reply, Movants argue that these arguments are unsubstantiated and reason that they did not need to address the fourth cause of action for writ of mandate because it will proceed through a separate briefing schedule. See Reply at pg. 5, fn. 1.

Because the moving papers do not address plaintiff’s fourth cause of action for writ of mandate, summary judgment cannot be granted. See CCP § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 849-851. Thus, It is immaterial that plaintiff’s fourth cause of action will proceed separately from the remaining causes of action. However, the court finds that Movants may proceed with their motion for summary adjudication. The organization of claims in a complaint is irrelevant to determining the number of causes of actions. Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1276 fn.25. Each alleged “wrongful act” or “separate and distinct obligation[]” equates to a separate cause of action that is subject to adjudication. Lilienthal & Fowler v. Super. Ct. (1993) 12 Cal.App.4th 1848, 1854.

ii. Issues No. 1-6: Whether Movants are Entitled to Summary Adjudication of the First Cause of Action for Violations of the POBRA

The Public Safety Officers Procedural Bill of Rights Act (“POBRA”) provides “basic rights and protections” that must be afforded to all peace officers by their employers. California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 304.

Here, Movants contend that the first cause of action fails because plaintiff is unable to show that Movants violated any provision of the POBRA. See Notice of Motion at pp. 2-3. The court shall address each purported violation in turn.

a. Issue No 1: Whether plaintiff’s claim for violation of Government Code § 3303 has merit.

Movants argue that there is no triable issue of material fact as to whether they violation Government Code § 3303(b), (c), (g), and (j) because plaintiff cannot show that he was ever interrogated.

Government Code § 3303 sets forth the conditions and procedural safeguards which must be afforded police officers who are under investigation and subjected to an interrogation by his commanding officer or any member of the employing police department. These procedural safeguards include, among other things, the right to be informed of the nature of the investigation before being subjected to interrogation (Gov’t Code §3303(c)), the right to be represented at the interrogation by a representative of the officer’s choice (Gov’t Code § 3303(i)), and the right to bring a recording device and record the interrogation [§ 3303(g)]. Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492, 497.

“Whenever an interrogation focuses on matters that are likely to result in punitive action against any public safety officer, that officer, at his or her request, shall have a right to be represented by a representative of his or her choice who may be present at all times during the interrogation.” Gov’t Code § 3303(i); see also Van Winkle, supra, 158 Cal.App.4th at 497.

Government Code § 3303(i) provides that the POBRA protections do “not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer.” The exclusion applies to all of the protections under section 3303. The second paragraph of subdivision (i) modifies all of section 3303, not just subdivision (i).

The court in City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1513, explained the purpose of section 3303(i)’s exception: “The second paragraph of subd. (i) is intended to cover innocent preliminary or casual questions and remarks between a supervisor and an officer. It was included to avoid claims that almost any communication is elevated to an “investigation.” The subdivision excludes routine communication within the normal course of administering the department.” Id. at 1514.

By its express terms, section 3303’s procedural safeguards apply only to an interrogation. While there is no published case interpreting what constitutes an interrogation for purposes of POBRA, the courts interpret POBRA’s language so as to “give the words of the statute their ordinary and usual meaning.” Parra v. City and County of San Francisco (2006) 144 Cal.App.4th 977, 994). The term “interrogation” is a common term in criminal law. Black’s Law Dictionary (7th ed. 1999, p. 825) defines “interrogation” as “[t]he formal or systematic questioning of a person; esp., intensive questioning by the police, esp. of a person arrested for or suspected of committing a crime.” See Rhode island v. Innis (1980) 446 U.S. 291, 292 (interrogation includes police words or actions designed to elicit incriminating response).

An interrogation may occur in an informal setting and not an interrogation room. See Paterson v. City of Los Angeles (2009) 174 Cal.App.4th 1393, 1403 (where officer suspected of abusing sick leave, investigator went to his home and verified that he was not there, phone call to him asking questions about whether he was at home was interrogation, not a check to see if he was okay). It may also be brief and need not consist of extensive questioning. See id; Compare Labio, supra, 57 Cal.App.4th at 1513 (where lieutenant had sufficient information to investigate officer for driving past scene of serious accident without stopping to investigate or render aid, and for unauthorized use of police vehicle, questions about those issues were interrogation under POBRA), with Steinert v. Covina (2006) 146 Cal.App.4th 458, 465-466 (brief conversation intended to correct officer’s mistake in mis-designating purpose of records search as “training” and failure to include name in report was not interrogation under POBRA, and officer’s lie about whether she disclosed confidential information to crime victim properly led to her dismissal).

Here, Movants assert that, during the December 23, 2018 meeting regarding plaintiff’s second probationary performance evaluation, he was only asked “how do you think you’re doing?” UMF Nos. 12, 93, 191, 303, 426. Based on this information, Movants argue that plaintiff was not subjected to an interrogation, and even if they were, they were part of the normal course of duty and amounted to admonishment or counseling by plaintiff’s superiors. Motion at pg. 23. The court agrees that the purported question did not amount to an investigation. See Steinert, supra, 146 Cal.App.4th at pg. 465-466. Thus, Movants have met their burden in showing that there is no triable issue of material fact as to whether plaintiff was interrogated within the meaning of Government Code § 3303. As a result, the burden now shifts to plaintiff to present evidence to show that there is a triable issue of material fact.

In opposition, plaintiff argues that the meeting on December 23, 2018 amounted to an interrogation because it was a planned contract and reasons that it was not within the normal court of duties because no other employee had been issued a performance improvement plan and such a meeting had never occurred in the past with a Captain present. See Opposition at pg. 16. However, these arguments are not persuasive because plaintiff’s supervisors are charged providing input in these performance evaluations. Moreover, plaintiff fails to point to any lines of questioning that would imply he was being interrogated. Also, plaintiff argues that he was questioned in connection with a taser incident that he was involved in. Opposition at pg. 16. The only evidence submitted to support this argument is his supervisor, Lt. Scheid, informed him that they will need to discuss about the matter latter. PUMF No. 691. This is insufficient because the evidence clearly shows that Lt. Scheid declined to discuss the matter further and did not ask plaintiff any questions. Id., UMF No. 541. Furthermore, as Movants note in their reply, this incident was not alleged in plaintiff’s pleadings or included in any responses to written discovery. Thus, it is precluded from consideration. See Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98–99, fn. 4 (“A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.”)

Accordingly, the court grants Movants’ motion for summary adjudication as it pertains to Issue No. 1.

b. Issue No. 2-3: Whether plaintiff’s claim for violation of Government Code § 3304 has merit.

Movants also argue that there is no triable issue of material fact as to whether plaintiff was ever subjected to punitive action.

Pursuant to Government Code § 3304(a), it states “[n]o public safety officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under this chapter, or the exercise of any rights under any existing administrative grievance procedure.” Also, “no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.” Gov’t Code § 3304(b). Further, in the event that the public agency decides to discipline the public safety officer in connection with its investigation, “it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action” articulating the discipline to be applied. Government Code § 3304, subd. (d)(1).

Moreover, “not every action taken by a law enforcement agency in reviewing, evaluating or commenting upon the performance of one of its peace officers constitutes punitive action. For example, a routine performance evaluation would not constitute punitive action, even though it contained negative comments.” Otto v. Los Angeles Unified School Dist. (2001) 89 Cal.App.4th 985, 996. Also, courts have found that “a written reprimand that relates to a specific instance of misconduct and that imposes specific restrictions on the peace officer's powers as a result of that misconduct” amounts to a punitive action within the scope of the POBRA. Gordon v. Horsley (2001) 86 Cal.App.4th 336, 350.

Here, Movants first contend that plaintiff did not experience a punitive action because he was not demoted but denied a promotion for reasons of merit before the end of his probationary period, which does not trigger application of Government Code § 3304. Motion at pg. 24, relying on Conger v. County of Los Angeles (2019) 36 Cal.App.5th 262, 270-271; UMF Nos. 124-127, 217-220. Moreover, Movants argue that the decision by Acting Chief McKinnon not to place plaintiff on the Acting Watch Commanders list or a special assignment was not a punitive action but part of the “normal management of the department.” Motion at pg. 24, relying on Perez v. City of Westminster (2016) 5 Cal.App.5th 358, 364. Lastly, Movants assert that plaintiff did not encounter POBRA retaliation based on his written response to his second probationary performance evaluation and there is no indication that the decision maker saw his rebuttal. UMF Nos. 58-60, 53-66, 87-91, 97-99.

Based on this evidence, the court finds that Movants have met their burden in showing that there is no triable issue of material fact as to whether plaintiff was subjected to a punitive action. Thus, the burden now shifts to plaintiff.

In opposition, plaintiff argues that the applicable probationary period is only six-months, not twelve. Opposition at pp. 3, 17, relying on Hermosa Beach Municipal Code § 2.76.120; PUMF Nos. 531-536.) Thus, plaintiff reasons that, because his promotion occurred on April 1, 2018, his probationary period ended on October 1, 2018, and as a result, he claims that he suffered a demotion. Id. However, the court does not find this persuasive because Hermosa Beach Municipal Code § 2.76.120 merely establishes the floor for probationary periods; it does not prevent the implementation of a longer probationary period as enacted by the HBPD’s policy. Also, plaintiff argues that the written reprimand and reduction of pay constitute punitive actions. Opposition at pg. 18. While the negative comments regarding plaintiff’s performance was included in his personnel file, plaintiff fails to show that his peace officer powers were restricted or that the negative comments were related to a specific instance of misconduct. See Gordon, supra, 86 Cal.App.4th at 350. In terms of the reduction in salary, it is natural that plaintiff’s pay would be reduced upon being denied a promotion. There is no indication that plaintiff’s salary was reduced below what he was making as a police officer.

Lastly, plaintiff argues that he was retaliated against for deciding to file a grievance or legal action, and thus, the denial of his promotion was not based on reasons of merit. In this regard, plaintiff claims that Lt. Scheid and Acting Chief McKinnon took “punitive action against him in the form of written reprimands (on time off issue, calls for service issues, supervisors actions for watch commanders, and Taser usage).” Opposition at pg. 18; PUMF No. 629. Although, as state above, written reprimands are not necessarily instances of punitive actions, Lt. Scheid choice in expanding the performance improvement plan after learning of plaintiff’s decision to file a grievance is questionable. Ultimately however, this theory is being alleged for the first time in the opposition, which is improper. Reply at pg. 10, fn. 5; see also Government Employees Ins. Co., supra, 79 Cal.App.4th at 98–99, fn. 4

Accordingly, the court grants Movants’ motion for summary adjudication as it pertains to Issue Nos. 2-3.

c. Issue No. 4-5: Whether plaintiff’s claims for violation of Government Code §§ 3306 and 3306.5 have merit.

Movants argue that there is no triable issue of material fact as to whether plaintiff’s written response was attached to his December 19, 2018 performance evaluation and whether he was denied the right to inspect his personnel file.

Pursuant to Government Code § 3306, it states: “A public safety officer shall have 30 days within which to file a written response to any adverse comment entered in his personnel file. Such written response shall be attached to, and shall accompany, the adverse comment.” Also, under Government Code § 3306.5(a), “Every employer shall, at reasonable times and at reasonable intervals, upon the request of a public safety officer, during usual business hours, with no loss of compensation to the officer, permit that officer to inspect personnel files that are used or have been used to determine that officer's qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.”

Here, Movants present the following evidence. On April 4, 2019, plaintiff reviewed his personnel file and that his rebuttal to his performance evaluation was attached. UMF Nos. 238, 241. Based on this evidence, the court finds that Movants have met their burden in showing that there is no triable issue of material fact as to whether plaintiff’s claims for violation of Government Code §§ 3306 and 3306.5 have merit. Thus, the burden now shifts to plaintiff.

In opposition, plaintiff first argues that rebuttal response was not attached when he inspected his personnel file and contends that the pertinent evaluation and rebuttal were produced separately during discovery. Opposition at pg. 19; Glave Decl. ¶ 14. However, these arguments are not persuasive. Plaintiff admitted that he did not look at every page and wrote in his notes “nothing of importance.” UMF Nos. 236, 239. Thus, this undermines the contention that plaintiff did not find the rebuttal response. also, the assertion that the rebuttal was not attached to the pertinent evaluation based on the fact that the two documents were produced separately during discovery is solely based on speculation and cannot support plaintiff’s burden.

Second, plaintiff argues that he was denied a request for copies of his personnel file in conjunction with this request for administrative appeal following the denial of his promotion. Opposition at pg. 19; PUMF No. 726-728. However, this is immaterial because Government Code § 3306.5 does not require the production of a police officer’s personnel file. It merely permits an inspection.

Accordingly, the court grants Movants’ motion for summary adjudication as it pertains to Issue Nos. 4-5.

d. Issue No. 6: Whether plaintiff’s claim for violation of Government Code § 3309.5 has merit.

Movants also argue that there is no basis for remedy under Government Code § 3309.5 because plaintiff’s substantive POBRA claims fail.

Government Code § 3309.5(a) provides: “It shall be unlawful for any public safety department to deny or refuse to any public safety officer the rights and protections guaranteed to him or her by this chapter.”

Because the court has found that plaintiff’s claims for various violations of the POBRA lack merit, it cannot be found that Movants denied or refused plaintiff the rights and protections set forth under POBRA.

Accordingly, the court grants Movants’ motion for summary adjudication as it pertains to Issue No. 6

iii. Issue No. 7: Whether Movants are Entitled to Summary Adjudication as to the Second Cause of Action for Declaratory Relief under Government Code § 3300, et seq.

Movants argue that there is no triable issue of material fact as to the second cause of action on the grounds that the first cause of action fails and declaratory relief is not a substantive cause of action. The court agrees. Where a declaratory relief claim is “wholly derivative” of other failed claims, then it also fails. Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800. Because the first cause of action is subject to summary adjudication in Movant’s favor, there is no dispute regarding the construction of the POBRA statute.

Accordingly, the court grants Movants’ motion for summary adjudication as it pertains to Issue No. 7.

iv. Issue Nos. 8-9: Whether Movants are Entitled to Summary Adjudication as to the Third Cause of Action for Whistleblower Retaliation in Violation of Labor Code § 1102.5

Movants lastly argue that there is no triable issue of material fact as to the third cause of action on the grounds that Plaintiff did not engaged in a protected activity and the adverse employment action was based on non-retaliatory reasons.

Labor Code § 1102.5 provides that an employer, or “any person acting on behalf of the employer” shall not “make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance,” if the employee has reasonable cause to believe that the information discloses a violation of a federal or local statute, rule or regulation. Labor Code § 1102.5, subd. (a). Additionally, an employer or person acting on behalf of the employer “shall not retaliate” against any employee for disclosing such information, or for refusing to participate in an activity that would lead to violation of a statute, rule or regulation. Labor Code § 1102.5, subds. (b)-(c).

Perceived disclosures are protected and retaliation is forbidden if the employer believes an employee has disclosed illegality. In other words, there need not be an actual violation of law. “[A]s the Court of Appeal has held; an employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity. [Citation.]” (Green v. Ralee Eng'g Co. (1998) 19 Cal.4th 66, 87.) Importantly, to have a “reasonably based suspicion,” the employee must be able to point to a legal foundation—a statute, rule, or regulation, that may have been violated by the conduct disclosed. (Jadwin v. County of Kern (2009) 610 F.Supp.2d 1129,1154.) While whistleblower protection may be afforded where the alleged conduct is ultimately not illegal, it is well established that violations of non-legal standards are insufficient. Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 821-822 instructs that disclosure of perceived violations of internal policies are not protected. See also Patten v. Grant Union High School Dist. (2005) 134 Cal.App.4th 1378.

Here, Movants argues that the third cause of action lacks merit because there is no evidence to show that any local, state or federal statute, rule or regulation was violated or that an adverse employment action was taken against Plaintiff. Motion at pg. 27.

Based on plaintiff’s pleadings, he alleges that there were five alleged protected disclosures. First, plaintiff alleges that his refusal to train Officer Rodriguez during the day shift, per Lt. Scheid’s instructions, was a protected disclosure alleging violation of Department policy A.101vii(D), Penal Code sections 115, 135.5, 148.6, and Civil Code section 47. Exhibit 23, at p. 44:5-13. Movants contend that there no reasonable belief to suggest that Lt. Scheid’s account was false because it is true that plaintiff declined to train Officer Rodriguez as instructed. UMF No. 382. Also, Movant argues that Penal Code § 115 is inapplicable because there is no evidence to show that Lt. Scheid’s retelling of events was reduced to writing. Further, because there was no disciplinary proceeding, Movants argue that Penal Code § 135.5 is inapplicable. In terms of Penal Code § 148.6, Movants argue that there is no evidence to show that Lt. Scheid signed an acknowledgement that making a false complaint can lead to prosecution. Movants also assert that Civil Code § 47 does not apply because Lt. Scheid alleged statement is not a protected disclosure. Lastly, because plaintiff secured the probationary position, he did not suffer any adverse employment action.

Second, plaintiff claims that the confrontation of Acting Chief McKinnon in Lt. Scheid’s office on December 23, 2018 was a disclosure that violated Penal Code § 632. Exhibit 23, at p. 44:14-20. However, Movants argue that this statute does not apply because plaintiff does not assert that Acting Chief McKinnon used a recording device to eavesdrop on a confidential communication and plaintiff concedes that the alleged conduct was not illegal. UMF Nos. 317, 440.

Third, plaintiff asserts that his rebuttal to the December 23, 2018 performance evaluation is a protected disclosure. Exhibit 23, at p. 44:21-25. Movants argues the opposite because there is no allegation that a violation of state or federal law has occurred. Also, the rebuttal does not disclose any instances of illegality. UMF Nos. 321-323, 444-446. Furthermore, Movants contend that it was because of plaintiff’s poor performance that resulted in him failing his probation, not the rebuttal. UMF Nos. 268-269, 271, 273-276, 297-302, 307-309, 327, 331, 334, 391-392, 394, 396- 399, 420-425, 430-432, 450-451, 454, 458.

Lastly, plaintiff asserts that his formal complaints of “Lying, Falsifying Documents, and failure to Train/Supervise” against Acting Chief McKinnon and Lt. Scheid constitute a protected disclosure. Exhibit 23, at p. 43:12-14. In response, Movants argue these complaints do not allege violation of any local, state or federal statute, rule or regulation. Assuming that these complaints show that Acting Chief McKinnon and Lt. Scheid violated a provision of the POBRA, Movants argues that this lacks merit because the first cause of action is subject to summary adjudication.

Based on this evidence, the court finds that Movants have met their burden in showing that there is no triable issue of material fact as to whether plaintiff’s third cause of action has merit. Thus, the burden now shifts to plaintiff.

In opposition, plaintiff argues that Movants’ reliance on Mueller and Patten is misplaced because their holding was abrogated by the 2013 amendment to Labor Code § 1102.5. Opposition at pp. 20-21. However, plaintiff fails to cite to any legal authority to support this position. Thus, it is not persuasive, and as a result, any argument by plaintiff that a disclosure of an internal policy supports a claim of whistleblower retaliation is unsubstantiated. In terms of meeting his burden, plaintiff merely argues that the alleged improper conduct could fall under one of the various statutes identified in the pleadings, but he fails to identify any evidence to corroborate this speculative argument. Opposition at pg. 22. Moreover, plaintiff fails to rebut the contention that there was a nondiscriminatory reason for denying plaintiff’s promotion. Thus, plaintiff has failed to meet his burden.

Accordingly, the court grants Movants’ motion for summary adjudication as it pertains to Issue Nos. 7-8.

Accordingly, Movants’ motion for summary judgment is DENIED. The motion for summary adjudication is GRANTED in its entirety.