Judge: Gary Y. Tanaka, Case: 20TRCV00048, Date: 2023-01-23 Tentative Ruling
Case Number: 20TRCV00048 Hearing Date: January 23, 2023 Dept: B
LOS ANGELES SUPERIOR COURT –
SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Monday,
January 23, 2023
Department B Calendar No. 6
PROCEEDINGS
Rachel
Muzatko v. City of Hermosa Beach, et al.
20TRCV00048
1. City of Hermosa Beach, et al.’s Motion for Summary
Judgment, or, Alternatively, for Summary Adjudication
TENTATIVE RULING
City of Hermosa Beach, et al.’s
Motion for Summary Judgment is denied.
City of Hermosa Beach, et al.’s Motion for Summary Adjudication
is denied, in part, and granted, in part.
Background
Plaintiff filed the Complaint on January 15, 2020. Plaintiff
alleges the following facts. Plaintiff was employed as a police officer with
the City of Hermosa Beach. Plaintiff was injured as an officer, and then improperly
investigated in contravention of her rights under the Public Safety Officers
Procedural Bill of Rights Act. Plaintiff was retaliated against for attempting
to exercise those rights and her due process rights were violated. Plaintiff alleges the following causes of
action: 1. Violation of the Public Safety Officers Procedural Bill of Rights
Act, Gov. Code Sections 3303, et seq.; 2. Declaratory Relief; 3. Whistleblower
Retaliation; 4. Violation of Due Process.
Objections
Plaintiff’s Objections
Declaration of Mick Gaglia – Objections 1 to 5 are
overruled.
Declaration of Landon Phillips – Objections 6 to 18
are overruled.
Declaration of Adam Smith – Objections 19 to 21 are
overruled.
Objection to the amended separate statement is
overruled, in part, and sustained, in part. The objection is overruled except
to the objection noting that the amended separate statement does not seek
summary judgment. That portion of the objection is sustained.
Defendants’ Objections
Defendants’ objections to matters set forth in
Plaintiff’s Separate Statement of Facts are overruled. Matters set forth in the
separate statement of facts do not consist of evidence. Defendants failed to
set forth proper evidentiary objections to specific pieces of evidence in the
format required by Cal. Rules of Court, Rule 3.1354.
Motion for Summary Judgment and/or Summary
Adjudication
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.
“A plaintiff or cross-complainant has met his or her
burden of showing that there is no defense to a cause of action if that party
has proved each element of the cause of action entitling the party to judgment
on the cause of action. Once the plaintiff or cross-complainant has met that
burden, the burden shifts to the defendant or cross-defendant to show that a
triable issue of one or more material facts exists as to the cause of action or
a defense thereto.” Code Civ. Proc., § 437c(p)(1).
“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).)
Defendants move for summary judgment of the Complaint.
Alternatively, Defendants move for summary adjudication of the first, second,
third, and fourth causes of action of the Complaint. The motion is made on the grounds that there
is no triable issue as to any material fact, and that Defendants are entitled to
judgment as a matter of law.
Cal Rules of Court, Rule 3.1350(b) states, in relevant
part: “If summary adjudication is sought, whether separately or as an
alternative to the motion for summary judgment, the specific cause of action,
affirmative defense, claims for damages, or issues of duty must be stated
specifically in the notice of motion and be repeated, verbatim, in the separate
statement of undisputed material facts.”
Cal. Rules of Court, Rule 3.1350(d)(3) states, in
relevant part: “The separate statement must be in the two-column format
specified in (h).”
Cal. Rules of Court, Rule 3.1350(h) outlines, with
specificity, the manner in which a separate statement for a motion for summary
judgment and motion for summary adjudication must be set forth. Defendants
failed to follow the requirements of Rule 3.1350(h). The amended separate
statement only sets forth a separate statement of facts in compliance with a
motion for summary adjudication. The separate statement of facts does not set
forth explicitly that a motion for summary judgment is being sought and the
specific facts that support a motion for summary judgment.
While Rule 3.1350 appears to require strict compliance
with the requirements by utilizing the mandatory language, “must,” the Court
notes that authority exists that the Court, in its discretion, may choose to
ignore procedural deficiencies with respect to a separate statement of facts. “The
statute governing the format of summary judgment moving papers, is permissive,
not mandatory: ‘[f]acts stated elsewhere [other than in the separate
statement] need not be considered by the court.” Brown v.
El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1019
(internal citations and quotations omitted; emphasis in original.) Here, in the
instant action, the separate statement is insufficient for the Court to proceed
with this motion as a motion for summary judgment. In addition, the Court has
already allowed Defendants one opportunity to file an amended separate
statement based on different defects set forth in the previously filed separate
statement. The Court declines to provide another opportunity to amend.
The Court exercises its discretion to deny the
alternative motion for summary judgment based on the procedural deficiency. In
addition, since the Court has also identified a triable issue of material fact
as to one cause of action, the Motion for Summary Judgment is denied on
substantive grounds.
The Court proceeds with this motion as a motion for
summary adjudication.
Issue 1: First Cause of Action for Violation of the
Public Safety Officers Procedural Bill of Rights Act (“POBRA”)
Issue 2: Second Cause of Action for Declaratory Relief
Issue 4: Fourth Cause of Action for Due Process
Defendants have met their initial burden to show that
Plaintiff’s causes of action have no merit by showing that an essential element
of the causes of action cannot be established and/or that a complete defense
exists to the causes of action. However, Plaintiff has met her burden to show
that a triable issue of material fact exists as to the causes of action. CCP §
437c(p)(2).
Gov. Code, § 3303(c) states, in relevant part:
“When any public safety officer is under investigation
and subjected to interrogation by his or her commanding officer, or any other
member of the employing public safety department, that could lead to punitive
action, the interrogation shall be conducted under the following conditions.
For the purpose of this chapter, punitive action means any action that may lead
to dismissal, demotion, suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment.
(c) The public safety officer under investigation
shall be informed of the nature of the investigation prior to any
interrogation.”
Plaintiff has submitted evidence to show the existence
of a triable issue of fact as to whether Defendants properly informed Plaintiff
of the nature of the investigation prior to any interrogation. (Plaintiff’s
Separate Statement of Facts and Supporting Evidence, 23.) Defendant argues, in the alternative, that any
purported violation consists of harmless error. However, the Court notes that the case
primarily relied upon by Defendant involved a review of a petition for writ of
mandate, and not a motion for summary judgment. Hinrichs v. City of Orange
County (2004) 125 Cal.App.4th 921 (finding that error in
complying with POBRA actually did not constitute harmless error). However, with a motion for summary judgment, a
determination of whether a procedural error in complying with POBRA is harmless
error will necessarily involve a determination of factual issues and the
weighing of evidence which is improper with a motion for summary judgment.
Defendants also argue that Plaintiff admitted that she
was properly informed of the nature of the investigation prior to any
interrogation. (Defendants’ Ex. 3 (Ex.
A); Depo of Plaintiff: 19-20). First,
the deposition testimony is vague as to what Plaintiff purportedly admitted and
recalled. The testimony is couched in vague language such as “I don’t recall”
when prompted to relay what was told to her regarding the reason for the
investigation, and “I believe so” when asked to confirm a purported reason relayed
by counsel. In addition, a triable issue
of material fact exists as to whether the nature of the investigation was
expanded at the time of the interrogation to include acts of insubordination.
Because the Court has identified a single triable
issue of material fact which defeats the motion for summary adjudication as to
the first cause of action, the Court declines to rule upon the merits of the
motion for summary adjudication as to every specific alleged violation of POBRA
which has been identified in the Complaint and outlined in the motion and
opposition. To do so may constitute an
advisory opinion as to the respective merits of the Plaintiff’s claims and
Defendants’ opposition.
As to Issue 2, with respect to the second cause of
action for Declaratory Relief, the Court notes that Defendants’ separate
statement of facts states specifically that this issue is derivative of the
first cause of action, and, therefore, the motion for summary adjudication as
to Issue 2 is also denied for the same reasons noted above. The Court notes that the text of this Issue
reads, as to the grounds for summary adjudication, tracks verbatim with Issue
1.
As to Issue 4, with respect to the fourth cause of
action for Due Process, while the text of the Issue sought to be adjudicated
does not track verbatim with Issue 1, the same facts were set forth in support
of adjudication of this Issue, and, importantly, essentially the same reasons
for why Defendants seek adjudication of this Issue mirrors the same reasons and
facts as Issues 1 and 2. Thus, for the
same reasons set forth above, the motion for summary adjudication of Issue 4 is
denied.
Issue 3: Whistleblower Retaliation
Defendants’ motion for summary adjudication of Issue 3
is granted. Defendants have met their
initial burden to show that Plaintiff’s cause of action has no merit by showing
that an essential element of the causes of action cannot be established and/or
that a complete defense exists to the causes of action. Plaintiff has not met her burden to show that
a triable issue of material fact exists as to the cause of action. CCP § 437c(p)(2).
Internal grievances regarding personnel matters are
not protected activities under the Whistleblower statute – Labor Code Section
1102.5. “[T]he activities of the department personnel of which plaintiff
complains in his suit do not rise to the level of whistle blower retaliation.
Matters such as transferring employees, writing up employees, and counseling
employees are personnel matters. To exalt these exclusively internal personnel
disclosures with whistleblower status would create all sorts of mischief. Most
damagingly, it would thrust the judiciary into micromanaging employment
practices and create a legion of undeserving protected ‘whistleblowers' arising
from the routine workings and communications of the job site.” Mueller v. County of Los Angeles (2009)
176 Cal.App.4th 809, 822 (internal citations and quotations omitted).
The motion for summary adjudication of Issue 3 is
granted.
Therefore, for the foregoing reasons, Defendants’
Motion for Summary Judgment is denied.
The Motion for Summary Adjudication of Issues 1, 2,
and 4 is denied.
The Motion for Summary Adjudication of Issue 3 is
granted.
Plaintiff is ordered to give notice of this ruling.