Judge: Gail Killefer, Case: 20STCV15371, Date: 2022-08-05 Tentative Ruling
Case Number: 20STCV15371 Hearing Date: August 5, 2022 Dept: 37
HEARING DATE: August 5, 2022
CASE NUMBER: 20STCV15371
CASE NAME: Edil Vazquez, et al.
v. Michael Olivieri, et al.
MOVING PARTY: Defendant, City of Pomona
OPPOSING PARTY: Plaintiff Edil Vazquez
TRIAL DATE: January 24, 2023
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment, or in the Alternative, Summary Adjudication
OPPOSITION: June 15, 2022
REPLY: June 24, 2022
TENTATIVE: Defendant’s motion is
granted as to the sixth cause of action and otherwise denied. Defendant is to
give notice.
This action arises out of Plaintiffs,
Edil Vazquez’s (“Vazquez”) and Steve Congalton’s (“Congalton”) employment as
police officers with Defendant, the City of Pomona. (“City”) Plaintiffs’
Complaint also named as Defendants police chief Michael Olivieri (“Olivieri”)
and police captain Dennis Cooper. (“Cooper”). Plaintiffs allege that they participated
in the City’s promotional process but were not selected for the promotions they
sought due to Olivieri’s and the City’s alleged favoritism for certain
employees over others. Further, Plaintiffs allege that Olivieri engaged in
other forms of favoritism and nepotism during his employment as police chief,
allegedly socializing with certain employees but not others and assigning
unfavorable shifts to officers he did not like. Additionally, Plaintiffs’
Complaint alleges that Cooper was part of Olivieri’s favored employees, and
that Cooper allegedly made false accusations against Plaintiff such that they
were prevented from receiving promotions and were subject to negative treatment
from Olivieri and other management at City.
On November 25, 2020, Plaintiffs filed
their operative First Amended Complaint. (“FAC”) The FAC alleges the following
causes of action: (1) retaliation in violation of Labor Code § 1102.5 (against
City), (2) violation of rights protected under Government Code § 3300 (against
City), (3) intentional infliction of emotional distress (against Olivieri and
Cooper), (4) discrimination on the basis of race/national origin in violation
of the Fair Housing Employment Act (“FEA”) by Vazquez against City only), (5)
failure to prevent discrimination in violation of FEHA (by Vazquez against city
only), (6) declaratory relief (against City only).
On April 29, 2021, Defendant
City’s demurrer was granted as to the
fourth and fifth causes of action.
On
May 3, 2022, Defendant City’s motion for summary judgment and/or summary
adjudication against Congalton was denied as to the first and second causes of
action, and granted as to the sixth cause of action. (Minute Order, May 3,
2022) (“May 3 Order”).
On
June 10, 2022, the Court granted summary judgment in favor of Defendants
Olivieri and Cooper.
Defendant City now moves for summary judgment
or, in the alternative, summary adjudication on all of the following issues:
1.
Vazquez's first cause of action for retaliation
in violation of Labor Code § 1102.5 is without merit because Plaintiff cannot
establish that retaliation for the purported protected activities was a
contributing factor in the alleged adverse employment actions;
2.
Vazquez’s first cause of action is further
without merit because City would have taken the alleged adverse employment actions
for legitimate, independent reasons even had Vasquez not engaged in purported
protected activities;
3.
Plaintiff Vazquez's second cause of action for violation
of rights protected under Government Code §§ 3300, et seq., is without merit
because Plaintiff cannot establish that any of his rights under different
provisions of the Public Safety Officers Procedural Bill of Rights Act (“POBR”)
were violated;
4.
Plaintiff’s sixth cause of action for declaratory
relief is without merit because declaratory relief is not a cognizable cause of
action under California law;
5.
Vazquez’s sixth cause of action for declaratory
relief is further without merit because Plaintiff cannot establish a prima
facie case for declaratory relief;
6.
Plaintiff’s sixth cause of action is further
without merit to the extent it is derivative of the first and second causes of
action.
City’s notice of motion does not comply
with CCP § 437c(f)(1), which provides: “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 for damages, or one or more issues of
duty.” City’s notice motion either address multiple causes of action within one
issue, or one cause of action is addressed across multiple issues. Thus, the
court will address the motion pertaining to each cause of action.
Plaintiff Vazquez opposes the motion.
Request for
Judicial Notice
Plaintiff requests
judicial notice of the following in support of his opposition:
Defendant opposes
the requests and contends they are unauthenticated, partial portions of any
relevant documents. (RJN Opp., 2.) City also contends that “it cannot ascertain
whether the foregoing items are what they purport to be because they are only
listed in, but not actually attached to, the Moussatche Request for Judicial
Notice Declaration.” (Id.)
The court agrees. Plaintiff
has failed to show how he has complied with Cal. Evid. Code §§ 452 and 453, has
failed to authenticate the documents or explain them to be legislative
instruments, and has failed to attach the documents to the Declaration such
that the opposing party can ascertain these documents. The request is therefore
denied.
Overruled:
2, 14, 17-19, 39, 47, 49, 53, 54, 55, 57, 75-78, 106, 112-113, 120, 130, 181,
213, 229, 237-242, 245, 247, 262, 274, 277-280, 313, 334, 338, 350-352, 371-374,
397, 399, 402-407, 411-412
Sustained
in part: None.
Sustained:
All remaining objections.
Plaintiff’s
Evidentiary Objections
Overruled:
1-45, 47-52, 56-58
Sustained
in part: None.
Sustained:
All remaining objections.
“The purpose of the law of
summary judgment 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.) Pursuant to CCP § 437c(a):
A party may move for
summary judgment in any action or proceeding if it is contended that the action
has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60
days have elapsed since the general appearance in the action or proceeding of
each party against whom the motion is directed or at any earlier time after the
general appearance that the court, with or without notice and upon good cause
shown, may direct…. The motion shall be
heard no later than 30 days before the date of trial, unless the court for good
cause orders otherwise. The filing of
the motion shall not extend the time within which a party must otherwise file a
responsive pleading.
A motion for summary judgment
may be granted “if all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a judgment as
a matter of law.” (CCP § 437c(c).)
“The motion shall be supported
by affidavits, declarations, admissions, answers to interrogatories,
depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a
separate statement setting forth plainly and concisely all material facts that
the moving party contends are undisputed.
Each of the material facts stated shall be followed by a reference to
the supporting evidence. The failure to
comply with this requirement of a separate statement may in the court’s
discretion constitute a sufficient ground for denial of the motion.” (CCP § 437c(b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).) While
admissions, answers to interrogatories, depositions, and other facts uncovered
through discovery may support or oppose a motion for summary judgement, a party
cannot use its own interrogatory responses, or denials to requests for
admission, to create a genuine issue of material fact on a motion for summary
judgement, or adjudication. (Bayramoglu v. Nationstar Mortgage LLC (2020)
51 Cal.App.5th 726; Victaulic Co. v. American Home Assurance Co. (2018)
20 Cal.App.5th 948, 973.)
In analyzing motions for summary
judgment, courts must apply a three-step analysis: “(1) identify the issues
framed by the pleadings; (2) determine whether the moving party has negated the
opponent's claims; and (3) determine whether the opposition has demonstrated
the existence of a triable, material factual issue.” (Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).)
CCP § 437c(p)(2) provides:
A defendant or
cross-defendant 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,
even if not separately pleaded, cannot be established, or that there is a
complete defense to the cause of action.
Once the defendant or cross-defendant has met that burden, the burden
shifts to the plaintiff or cross-complainant to show that a triable issue of
one or more material facts exists as to the cause of action or a defense
thereto. The plaintiff or
cross-complainant shall not rely upon the allegations or denials of its
pleadings to show that a triable issue of material fact exists but, instead,
shall set forth the specific facts showing that a triable issue of material
fact exists as to the cause of action or a defense thereto.
The court must “view the
evidence in the light most favorable to the opposing party and accept all
inferences reasonably drawn therefrom.”
(Hinesley, 135 Cal.App.4th at p. 294; Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied
where the moving party’s evidence does not prove all material facts, even in
the absence of any opposition (Leyva v.
Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990)
222 Cal.App.3d 379, 384, 387).
A.
Labor
Code Section 1102.5 and Summary Judgment
“In a civil action or administrative
proceeding brought pursuant to Section 1102.5, once it
has been demonstrated by a preponderance of the evidence that an activity
proscribed by section 1102.5 was a
contributing factor in the alleged prohibited action against the employee, the
employer shall have the burden of proof to demonstrate by clear and convincing
evidence that the alleged action would have occurred for legitimate,
independent reasons even if the employee had not engaged in activities
protected by section 1102.5” (Lab. Code, §
1102.6.)
B.
First Cause of Action:
Whistleblower Retaliation
To establish a prima facie case for retaliation under Labor
Code § 1102.5(b), “a plaintiff must show (1) she engaged in a protected
activity, (2) her employer subjected her to an adverse employment action, and
(3) there is a causal link between the two.”¿ (Patten v. Grant Joint Un.
High Sch.¿(2005) 134 Cal.App.4th 1378, 1384 (Patten).)¿¿¿
Here, Defendant City argues
that Vazquez was never subjected to an adverse employment action, Vazquez did
not engage in any protected activity for the purposes of Section 1102.5, and his
purported protected activities were not
contributing factors to the promotional process. (Motion, 16-24.) Further, City
contends that it had legitimate, independent reasons for promoting other
candidates, and had legitimate, independent business reasons for the alleged
adverse employment actions. (Motion, 22-24.)
Defendant contends
that the only purported protected activity alleged by Vazquez is the December
26, 2018 Complaint, as the retaliatory consequences he alleges predate the
second December 10, 2019 Complaint he made. (Motion, 17-18.) City further
contends that even if the December 26, 2018 Complaint is a protected activity,
the night shift reassignment, internal investigations, and isolation he alleges
he faced are not adverse actions. (Motion, 18-19.)
Regarding the 2019
promotions to captain, Defendant explains that its decision to promote Rodriguez,
Hsu, and Cooper in 2017, 2018, and 2019,
respectively, for legitimate reasons due to factors such as positive working
relationships, emotional intelligence, observations regarding work performance,
and qualifications. (Motion, 20-21.) City further points out that some of Vasquez’s
alleged adverse employment actions occurred before his protected activities. (Id.)
City further contends that Vazquez’s 2018 Complaint played no role in the
promotion of Ellis to Deputy Chief and the promotion of Cooper to captain.
(Motion, 22-23.)
City again contends that it had
legitimate, non-discriminatory reasons for reassigning Vazquez to the Night
Shift, removing his collateral duties, and not inviting him to the Implicit
Bias and Sky Breathing and Meditation Trainings. (Motion, 23-24.) Regarding the
AIC 2019-053 investigation, Defendant City explains that Vazquez received a
counselling memorandum regarding racial comments as the extent of the
discipline carried out, and City had a legal obligation to launch an
administrative investigation. (Motion, 24.)
City further explains the events as
described above, namely that several of Vasquez’s alleged adverse employment
actions happened prior to his purported protected activities or happened both
before and after the purported protected activities. (Motion, 19-22.) Further,
Defendant again explains that it had legitimate reasons for selecting other
candidates for promotion, and has legitimate, independent business reasons in
determining personnel rotations, trainings, and administrative investigations.
(Motion, 19-22.)
In opposition, Vazquez
alleges that the December 2018 Complaint does operate as a whistleblower
complaint and is a protected activity. (Opposition, 13-14.) Vazquez further contends
the “totality of Plaintiff’s employment clearly demonstrate he was subjected to
adverse employment actions,” noting the denial of Plaintiff’s promotion and
allegations of policies by Olivieri to shun Vazquez after his alleged
complaints (Id., 11.) “The totality of the actions taken against
Plaintiff clearly shows that he was retaliated [against].” (Id.)
Plaintiff further contends that Chief
Olivieri made several personnel decisions that were allegedly unorthodox
compared to department routines, and infers that City has not met the clear and
convincing standard in showing it had legitimate, business reasons for making
the personnel decisions against Vazquez. (Opposition, 12-13.) Plaintiff further
continues by alleging he “believed there were various violations of law, and
that was the basis of the whistleblowing activities.” (Id., 14.)
In reply, City reaffirms that Plaintiff
has failed to raise any triable issues of material fact as to the City’s
legitimate, independent reasons for its personnel decisions, as well as
Vazquez’s alleged protected activities and resulting adverse employment actions.
(Reply,7-13.)
On May 3, 2022, the court denied
summary adjudication as to the first cause of action for Congalton, finding
that “[r]eporting retaliation to a police department and being retaliated
against for doing so violates several statutes.” (May 3 Minute Order, 9.) Here,
the court similarly acknowledges that Vazquez alleges that he faced retaliatory
consequences after complaining in December 2018 of retaliation in the
department. The court also determined that the investigation of Congalton was “a
part of his permanent record that may affect promotion opportunities,” in
finding that Congalton had satisfied his obligation to state a prima facie case.
(Id.) Here, Vazquez has similarly
shown that he was also investigated, that such investigations may affect
promotional opportunities, and does state a prima facie case of retaliation.
Lastly, the court determined,
“The City has stated various reasons for
each of the actions it took relating to Plaintiff. Plaintiff argues that many
are pretextual, but he has scant evidence to that effect. However, clear and
convincing evidence is a high standard that the City has not met to prove that
those decisions were not, in part, in retaliation for Plaintiff’s complaints.
Several facts in the separate statement were disputed based on admissible
evidence to negate a clear and convincing showing, e.g., SS 1, 10, 15, 18, 32,
35 to name a few.” (Id.)
Here, there are similarly numerous
disputed facts in the separate statement which are based on admissible evidence
to negate a clear and convincing showing — 6, 12-14, 19, 22, 24-27 to name a
few. As such, the court maintains consistency with its prior ruling in finding
that even though Vazquez has shown “scant evidence,” clear and convincing
evidence remains a high standard that City has not met to show the decisions
were not even partially retaliatory.
For these reasons, City’s motion is denied with respect to
the first cause of action.
C.
Second Cause of Action: Violation
of Rights Protected under Govt. Code § 3300 et seq.
The Public Safety Officers Procedural Bill of Rights Act
(“POBR”) 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.) Pursuant to
Government Code § 3304, “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.” 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(d)(1).)
Here, Defendant contends it did not violate Plaintiff’s
rights under Government Code §§ 3303(j), 3304(a) and (b), and 3309.5(a).
(Motion, 25-27.)
Gov. Code § 3303(j)
states, “No public safety officer shall be loaned or temporarily reassigned to
a location or duty assignment if a sworn member of his or her department would
not normally be sent to that location or would not normally be given that duty
assignment under similar circumstances.”
Gov. Code § 3304(a)
states, “No 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.” Here,
Defendant reaffirms the analysis of Plaintiff’s first cause of action in
reiterating that it has not violated Plaintiff’s rights under Gov. Code § 3304(a).
(Motion, 27.)
Gov. Code § 3304(b) states, “No
punitive action, nor denial of promotion on grounds other than merit, shall be
undertaken by any public agency against any public safety officer who has
successfully completed the probationary period that may be required by his or
her employing agency without providing the public safety officer with an
opportunity for administrative appeal.”
In the May 3 Order, the court
determined “[b]ecause the City did not prevail on the first cause of action a
triable issue remains as to the second which is based on the same purported
undisputed facts, many of which were disputed.” (May 3 Order, 11.)
As the court has
determined the City did not prevail on the first cause of action here, a
triable issue also remains as to the second cause of action based on the same
set of disputed facts.
For these reasons, Defendant’s motion is denied with respect
to the second cause of action.
D.
Sixth Cause of Action: Declaratory
Relief
Pursuant to CCP § 1060, any person interested under a
contract may, ““in cases of actual controversy relating to the legal rights and
duties of the respective parties,” bring an action for a¿declaration of his or
her rights.¿“‘It is clear that¿declaratory relief¿may be asked for alone or
with other relief…that the mere fact that the¿contract has already been
breached and a cause of action therefor (one of the traditional remedies) has
accrued, does not necessarily deprive the court of the power to
grant¿declaratory relief¿under the law.’” (Bertero¿v. Nat’l General
Corp.¿(1967) 254 Cal.App.2d 126, 136 [quoting¿Ermolieff¿v. R.K.O.
Radio Pictures¿(1942) 19 Cal.2d 543, 547].)¿“The actual controversy language in
section 1060¿encompasses a probable future controversy relating to the legal
rights and duties of the parties that is ‘ripe’ when it has reached, but has
not passed, the point that the facts have sufficiently congealed to permit an
intelligent and useful decision to be made.” (Transparent Gov¿Novato
v. City of Novato¿(2019) 34 Cal.App.5th 140, 148 [internal citations
omitted, emphasis in original].)¿
The court in its May 3 Order also found:
“In
opposition, Plaintiff contends that because City allegedly “lacks a policy that
allows officer [sic] to challenge before a neutral factfinder a
promotional decision which was not based on merit,” that Plaintiff is entitled
to declaratory relief. (Opposition, 20.) Plaintiff’s argument seeks to rehash
his proffered analysis regarding the second cause of action. However, Plaintiff
suggests “as long as any cause of action against the city remains,” that
declaratory relief is proper, which is a tacit admission of the derivative
nature of the sixth cause of action. (Id.) As Defendant’s reply
correctly points out that Plaintiff’s arguments here are the same arguments
underlying his second cause of action, Plaintiff’s declaratory relief claim is
superfluous to his first two claims.”
As Plaintiff’s arguments are identical here, the court
affirms its understanding as Vazquez’s tacit admission of the derivative nature
of the sixth cause of action. (Opposition, 17.)
Therefore, Defendant’s motion is
granted as to the sixth cause of action.
Conclusion
Defendant’s motion is granted as to the sixth cause of action and
otherwise denied. Defendant is to give notice.