Judge: Gail Killefer, Case: 23STCV21785, Date: 2025-02-18 Tentative Ruling
Case Number: 23STCV21785 Hearing Date: February 18, 2025 Dept: 37
HEARING DATE: Wednesday, February 19, 2025
CASE NUMBER: 23STCV21785
CASE NAME: Uduak-Joe Ntuk v. State of California
MOVING PARTY: Defendant the California
Department of Conservation
OPPOSING PARTY: Plaintiff Uduak-Joe Ntuk
TRIAL DATE: 14 October 2025
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Adjudication
OPPOSITION: 17 January 2025
REPLY: 24 January
2025
TENTATIVE: Defendant’s motion for summary adjudication
is granted as to the 1st, 2nd, 3rd, and 6th causes of action. Defendant to
give notice.
Background
On September 22, 2023, Uduak-Joe Ntuk (“Plaintiff”) filed a Complaint
against the State of California’s Department of Conservation (“Defendant”) and
Does 1 to 25.
The Complaint alleges the following six causes of action:
1)
Wrongful termination,
2)
Violation of Lab. Code § 1102.5
3)
Violation of California
Whistleblower Protection Act (Gov. Code § 8547.1),
4)
Failure to prevent retaliation,
5)
Retaliation, and
6)
Constructive Termination.
Defendant now moves for summary adjudication as to the 1st, 2nd, 3rd, and
6th causes of action. Plaintiff opposed the Motion. The matter is now before
the court.
Evidentiary Objections
I. Defendant’s Evidentiary Objection.
Objection No. 1 to Plaintiff’s
Exhibit A is overruled. Defendant relies on the same evidence
(Defendant’s Compendium of Evidence Ex.
A) to support its Motion. (See Serri v. Santa Clara University (2014)
226 Cal.App.4th 830, 856.)
The court declines to rule on Objection No. 2 as the objection is
immaterial to the court’s disposition of this Motion. (CCP, § 437c(q).)
All objections not ruled upon are preserved for appeal.
REQUEST FOR JUDICIAL NOTICE
The court may
take judicial notice of “official acts of the legislative, executive, and
judicial departments of the United States and of any state of the United
States,” “[r]ecords of (1) any court of this state or (2) any court of record
of the United States or of any state of the United States,” and “[f]acts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” (Evid. Code, § 452, subds. (c), (d), and (h).) “Taking
judicial notice of a document is not the same as accepting the truth of its
contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
I. Defendant’s Request for Judicial Notice
Request Nos. 1 & 2: Declaration of Angelica Ramos and Records
from the Department of General Services-Government Claims Program. (See also
Defendant’s Compendium of Evidence Ex. A, B.)
As Angelica Ramos completed the
records as a Staff Service Analyst with the Government Claims Program in the
State of California, Department of General Services, the court may take
judicial notice of the records search because it is an official act and record
of a state administrative agency. (Fowler v. Howell (1996) 42
Cal.App.4th 1746, 1750 [“Evidence Code section 452, subdivision (c) permits the
trial court to take judicial notice of the records and files of a state
administrative board.”.)
Therefore, the request for judicial
notice Nos. 1 and 2 (“RJN1” and “RJN2”) is granted.
Request No. 3: No Records Letter from the State Personnel Board dated February 15, 2024,
titled “No
Records Letter” signed by Enessa Zhilovskiy, the
Custodian of Appeals Records for the California State.
The request for judicial notice no. 3 (“RJN3”) is granted.
I. Legal Standard
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. Atl. 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.) Summary
adjudication may be granted as to one or more causes of action within an
action, or one or more claims for damages. (CCP, § 437c(f).)¿¿¿¿¿¿¿¿¿¿¿
¿¿¿¿¿¿
A defendant moving for summary
judgment bears two burdens: (1) the burden of production – presenting
admissible evidence, through material facts, sufficient to satisfy a directed
verdict standard; and (2) the burden of persuasion – the material facts presented
must persuade the court that the plaintiff cannot establish one or more
elements of a cause of action, or a complete defense vitiates the cause of
action. (CCP, § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p.
850-851.) A defendant may satisfy this burden by showing that the claim “cannot
be established” because of the lack of evidence on some essential element of
the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574,
590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff
to show that a “triable issue of one or more material facts exists as to that
cause of action or defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿¿¿¿
¿¿¿¿¿¿
“On ruling on a motion for summary
judgment, the court is to ‘liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223
Cal.App.4th 736, 760.) On a summary judgment motion, the court must therefore
consider what inferences favoring the opposing party a factfinder could
reasonably draw from the evidence. While viewing the evidence in this manner,
the court must bear in mind that its primary function is to identify issues
rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999)
75 Cal.App.4th¿832, 839.)¿¿¿¿¿¿¿
¿¿¿¿¿¿
Defeating summary judgment
requires only a single disputed material fact. (See CCP, § 437c(c) [a motion
for summary judgment “shall 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”] [italics added].) Thus,
any disputed material fact means the court must deny the motion – the court has
no discretion to grant summary judgment. (Zavala v. Arce (1997) 58
Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991)
233 Cal.App.3d 1505, 1511-1512.)¿¿¿
II. Discussion
A. Factual Summary
In 2019, Plaintiff was appointed as the California State Oil and
Gas Supervisor and the California State
Oil and Gas Supervisor. (Compl., ¶¶ 9, 10.) Plaintiff was involved in drafting
SB 1137 and implementing the associated emergency regulations, which banned new
permits for oil wells within close proximity to sensitive sites like homes and
schools. (Id. ¶ 11.)
On January 1, 2023, SB 1137 went into effect but due to a
referendum, it was placed on hold on February 3, 2023. (Compl. ¶ 12.) Despite
the suspension of SB 1137, Plaintiff received directions from the Governor’s
office to continue to implement SB 1137 and use the referendum to stop issuing
new oil well drilling permits. (Ibid.) Plaintiff did not believe he had
the legal authority to do so and that it was unconstitutional. (Id.)
On January 4, 2023, Plaintiff filed a whistleblower complaint with
the Department of Conservation to express his concerns about the illegality of
enforcing SB 1137 while the law was on hold due to the referendum and the
illegal statewide moratorium on the issuance of new oil well drilling permits.
(Compl. ¶ 12.) Despite Plaintiff’s supervisor stating they would investigate
the matter further, Plaintiff was terminated on January 13, 2023, just 9 days
after filing his whistleblower complaint. (Id. ¶ 13.)
Defendant now moves for summary adjudication as to the 1st, 2nd, 3rd, and
6th causes of action on the basis that (1) the 1st and 2nd causes of action are
barred by Gov. Code § 815, (2) Plaintiff failed to satisfy the claim
presentation requirement of the Government Claims Act, and (3) the third cause
of action fails because Plaintiff failed to file a whistleblower retaliation
claim with the State Personnel Board.
B. Gov. Code § 815 Bars the 1st Cause of
Action for Wrongful Termination and the 6th Cause of Action for Constructive
Termination
First, Defendant asserts
that the 1st cause of action for wrongful termination and 2nd cause of action
for violation of Lab. Code § 1102.5 are barred under Gov. Code § 815. Gov. Code § 815 states in relevant part:
Except as otherwise provided by
statute:
(a) A public entity is not liable
for an injury, whether such injury arises out of an act or omission of the
public entity or a public employee or any other person. . .
Under Gov. Code § 815, the State’s liability “can only be
predicated on its vicarious liability, if any, for the wrongful acts of its
employees, as authorized by section 815.2, subdivision (a).” (Ross v. San
Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1514
[italics original].)
In Miklosy v. Regents of University of California (2008) 44
Cal.4th 876, the California Supreme Court explained that because individual
employees are not the employer, they cannot be liable for the employer’s
wrongful discharge, thus precluding a finding that a public entity can be held
vicariously liable for the employee's wrongful discharge under Gov. Code §
815.2:
Plaintiffs, however, overlook the
fact that a Tameny action for wrongful discharge can only be asserted
against an employer. An individual who is not an employer cannot commit
the tort of wrongful discharge in violation of public policy; rather, he or she
can only be the agent by which an employer commits that tort. . . [¶]
Thus, there can be no Tameny cause of action without the prior existence
of an employment relationship between the parties. . . . [¶] “There is
nothing in ... any ... case we have found to suggest that this tort imposes a
duty of any kind on anyone other than the employer. Certainly, there is no
law we know of to support the notion that anyone other than the employer can
discharge an employee.”
(Id. at pp. 900-901 [italics original].)
As the torts for wrongful termination and constructive discharge require
an adverse action to be taken by the employer rather than by an employee, Gov.
Code § 815 bars any claims for direct liability against the State. Similarly,
because only the employer can be held liable for wrongful termination and
constructive termination, the State cannot be held vicariously liable for these
claims under Gov. Code § 815.2.
Based on the above, summary adjudication is granted as to the first and
sixth causes of action.
C. Plaintiff’s Failure to Comply with the Government Tort Claims Act
Bar Plaintiff’s 1st, 2nd, and 6th Causes of Action
Defendant presents evidence from the Government Claims Program
(GCP) in the Department of General Services showing that GCP’s records only
show a March 8, 2023, government claim (the “March 8, 2023 Claim”) for damages
and an April 10, 2023 Notice of Defective Claim. (Ramos Decl., ¶ 4; Defendant’s
Compendium of Evidence (“DCOE”) Ex. A003-A004.) The government claim was filed
with the Department of General Services, and summarized Plaintiff’s complaints
regarding termination and retaliation due to raising concerns about SB 1137’s
enforcement. (DCOE Ex. A.)
On April 10, 2023, Plaintiff received a letter from the Department
of General Servies informing him that his claim “failed to comply with
Government Code section 905.2(c)” because he had failed to submit the $25.00
filing fee made payable to the GCP or failed to request a fee waiver. (DCOE Ex.
A-006.) The April 10, 2023 Notice of Defective Claim warned Plaintiff that: “In
order for tort claims to be considered timely, they must comply with the
requirement of Government Code section 905.2(c), 910 and 910.2 and be presented
within six months of the original date of incident[.]” (Id.) The April
10, 2023 Notice also warned that if the claim was presented after six months of
the original date of the incident, Plaintiff was required to apply for leave to
present a late claim under Gov. Code § 901 and § 911.2. (Id.)
Plaintiff does not dispute the fact he failed to submit the $25.00
filing fee along with his March 8, 2023 claim or that he was informed on April
10, 2023, that his claim was defective. (Undisputed Material Fact (“UMF”) Nos.
1, 2.) Plaintiff asserts the failure to pay the $25.00 filling fee is a
technical deficiency that does not justify the dismissal of his claims for
failing to present a claim under the Government Tort Claims Act.
Gov. Code § 905.2 “shall apply to claims against the state filed
with the Department of General Services” and requires claimants to pay a $25
fee. (Gov. Code § 905.2 subd. (a), (c).) Gov. Code § 905.2 further provides:
(d) The time for the
Department of General Services to determine the sufficiency, timeliness, or any
other aspect of the claim shall begin when any of the following occur:
(1) The claim is submitted
with the filing fee.
(2) The fee waiver is
granted.
(3) The filing fee is paid
to the department upon the department's denial of the fee waiver request, so
long as payment is received within 10 calendar days of the mailing of the
notice of the denial.
[. . . ]
(g) The filing fee required
by subdivision (c) shall apply to all claims filed after June 30, 2004, or
August 16, 2004. The surcharge authorized by subdivision (f) may be calculated
and included in claims paid after June 30, 2004, or August 16, 2004.
(h) This section does not
apply to claims made for a violation of the California Whistleblower Protection
Act[.]
“A plaintiff suing the state or a local public entity must allege
facts demonstrating either compliance with the claim presentation requirement
or an excuse for noncompliance as an essential element of the cause of action.”
(Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 65.) “The
plaintiff must prove compliance with the claim presentation requirement, or
establish an excuse for noncompliance, to establish the defendant's liability.”
(Ibid.) “The claim filing requirements of the Government Code, on the
other hand, stem from the legislative prerogative to impose conditions as a
prerequisite to the commencement of any action against the state for money
damages [citation]; they are specific and mandatory regulations which must be
strictly complied with.” (Bozaich v. State of California (1973) 32
Cal.App.3d 688, 697.)
Plaintiff asserts that the failure to pay the $25.00 filing fee
does not warrant dismissing the 1st, 2nd, and 6th causes of action. Plaintiff
appears to assert that failing to pay the $25.00 filing fee does not render his
claim untimely because he substantially complied with the claim presentation
requirement of the Government Tort Claims Act.
The doctrine of substantial compliance applies to the Government
Tort Claims Act. “The doctrine of substantial compliance prevents the public
entity from using the claims statutes as ‘traps for the unwary’ when their
underlying purposes have been met. [Citation.] However, the substantial
compliance doctrine applies only when there is a defect in form, but the
statutory requirements have otherwise been met.” (Nguyen v. Los Angeles
County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732–733 (Nguyen);
see also Castaneda v. Department of Corrections & Rehabilitation
(2013) 212 Cal.App.4th 1051, 1063 [“The doctrine of substantial compliance
‘applies only when there is a defect in form; it does not apply if a claimant
has not filed a tort claim at all.’ ”].) However, “[t[he doctrine has no
application when, as here, there has been a failure to comply with all
of the statutory tort claim requirements.” (Nguyen, at p. 733 [italics
original].)
Here, Plaintiff fails to show that failing to submit the $25.00
filing fee constitutes a defect in form rather than a failure to comply with a
mandatory statutory requirement. The payment or waiver of the filing fee
requirement is tied to the time given to the Claims Board to determine the
sufficiency, timeliness, and merits of the claims. (Gov. Code § 905.2(d).) Gov.
Code § 905.2(d) specifically states that the timeliness of a government claim
depends on when “[t]he claim is submitted with the filing fee.” (Id.
[italics original].) If Plaintiff had submitted a request for a fee
waiver, then when the Claims Board
denied the fee waiver request the time
would begin for the Claims Board to consider the claim “so long as payment is
received within 10 calendar days of the mailing of the notice of the denial.”
Gov. Code § 905.2(d)(3).)
Plaintiff does not allege that Gov. Code § 905.2(d) is vague and
that the Legislature intended government claims filed with the Department of
General Services to be considered timely even in the absence of a $25.00 filing
fee. “[A] defect in the form of compliance is not fatal so long as there is
substantial compliance with the essentials of the requirement. In the present
case, however, there is an entire failure on the part of the plaintiff to
comply with one of the mandates of the statute. Substantial compliance cannot
be predicated upon no compliance.” (Hall v. City of Los Angeles (1941)
19 Cal.2d 198, 202.) Because submitting a $25.00 filing fee was a mandatory
statutory requirement, Plaintiff has failed to comply with the Government Tort
Claims Act and fails to meet this prerequisite suit for maintaining a tort claim
for damages against the State.
The court finds the failure to pay the $25.00 filing fee was a
mandatory requirement of the Government Tort Claims Act, making Plaintiff’s
claim untimely under Gov. Code § 905.2. This warrants summary adjudication of
the 1st cause of action for wrongful termination, the 2nd cause of action for
violation of Lab.
Code § 1102.5, and the 6th cause of
action for constructive termination.
i. The Government Tort Claims Act Applies to the 2nd Cause of
Action for
Violation of Labor Code
§ 1102.5
Plaintiff asserts that
Labor Code § 1102.5 falls outside the claim presentation requirements of the
Government Tort Claims Act. The cases cited by Plaintiff in support of this
proposition are for claims under FEHA and not the Labor Code. Although FEHA
claims are exempt from the claim presentation requirements of the Tort Claim
Act, Labor Code violations are not. (See Garcia v. Los Angeles Unified
School Dist. (1985) 173 Cal.App.3d 701, 712. In Le Mere v. Los Angeles
Unified School Dist. (2019) 35 Cal.App.5th 237, the appellate court agreed
that a teacher was barred from alleging a cause of action against the school
district for harassment, discrimination, and retaliation under the Lab. Code §
1102.5 because she failed to timely file a government claim and failed to seek
leave to file a late claim. (Id. at p. 245.)
Therefore, Plaintiff’s
2nd cause of action is barred due to failure to comply with the claim
presentation requirement and summary adjudication of the 2nd cause of action is
proper.
D. 3rd Cause of Action - Violation of
California Whistleblower Protection Act (Gov. Code § 8547.1)
Gov. Code § 8547.8 states in relevant part:
(a) A state employee or applicant
for state employment who files a written complaint with his or her supervisor,
manager, or the appointing power alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts prohibited by Section
8547.3, may also file a copy of the written complaint with the State Personnel
Board, together with a sworn statement that the contents of the written
complaint are true, or are believed by the affiant to be true, under penalty of
perjury. The complaint filed with the board, shall be filed within 12 months of
the most recent act of reprisal complained about.
[ . . . ]
Defendant moves for summary adjudication of the third cause of action on
the grounds that Plaintiff failed to file a whistleblower retaliation claim
with the State Personnel Board. Plaintiff disputes this fact and points to the
March 8, 2023 Claim filed with the Department of General Services as evidence.
(Plaintiff’s Compendium of Evidence (“PCOE”) Ex. A; DCOE Ex. A.) However,
Plaintiff fails to show that the March 8, 2023, claim was filed with the State
Personal Board as required by Gov. Code § 8547.8. To establish a triable issue
of material fact, Plaintiff must produce substantial responsive evidence. (See Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Plaintiff fails to rebut
Defendant’s evidence that the March 8, 2023, Claim is not a whistleblower
complaint filed with the State Personnel Board within one year of his
termination. (UMF No. 5.)
Conversely, Plaintiff argues the summary adjudication should be denied as
to the third cause of action because equitable tolling applies to excuse his
failure to file a complaint with the State Personnel Board. In Bjorndal v.
Superior Court (2012) 211 Cal.App.4th 1100, the appellate court rejected
the application of equitable tolling to extend the for filing an administrative
complaint under the Whistleblower Protection Act. (Id. at p. 1109 [“we
conclude the doctrine of equitable tolling cannot rescue Pena from his failure
to meet the administrative deadline.”].) The Bjorndal Court reasoned
that “[a]llowing a plaintiff to toll the time for complying with an
administrative claim procedure while pursuing a lawsuit, whether in state or
federal court, would render the administrative remedy pointless.” (Id.
at p. 1110.)
As Plaintiff cannot rely on equitable tolling to excuse his failure to
file a whistleblower complaint with the State Personnel Board before bringing a
claim for Violation of the California Whistleblower Protection Act, summary
adjudication is granted as to the third cause of action.
Conclusion