Judge: Jon R. Takasugi, Case: 21STCV00093, Date: 2023-08-15 Tentative Ruling

Case Number: 21STCV00093    Hearing Date: August 15, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s motion for summary judgment is DENIED.

On 1/4/2021, Plaintiff Timothy Colomey (Plaintiff) filed suit against the City of Los Angeles (Defendant), alleging whistleblower retaliation.

            Now, Defendant moves for summary judgment of Plaintiff’s Complaint.

Evidentiary Objections

CCP section 437c, subdivision (q) provides:

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

            In light of CCP section 437c, subd. (q), the Court declines to rule on the submitted objections.

Discussion

            Defendant argues that Plaintiff cannot establish a claim for retaliation under Labor Code section 1102.5 because he did not report conduct which constitutes a protected disclosure under the statute, or that he had reasonable cause to believe violated any statute rule or regulation.

            After review, the Court concludes that there is a triable issue of material fact as to whether Plaintiff disclosed activity which he had reasonable cause to believe violated any statute, rule, or regulation.

To establish a prima facie case under Labor Code 1102.5, a plaintiff must show (1) he engaged in protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal link between the two. (Ross v. County of Riverside (2019) 36 Cal. App.5th 580, 592 (citing Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141.)

Here, Plaintiff submitted evidence to show that:

-         He has been employed as a sworn peace officer in the Los Angeles Police Department (the “Department” or “LAPD”) since in or around 1995. He attained the rank of Sergeant in or around 2002. (AMF No. 1.) Colomey alleges that from in or around 2008 to in or around October 2019, Colomey served as a Sergeant II + 3 in the Department’s Special Weapons and Tactics Team (“SWAT” or “SWAT Team”). (AMF No. 2.)  

-         From in or around November 2018 to October 2019, Colomey was the most senior sergeant in SWAT, a status that conferred on him the honorary title of “20-David”. (AMF No. 3.)

-         In or around September of 2018, LAPD’s Internal Affairs Group (“IA”) began investigating a complaint that compared the culture within SWAT to the LAPD Rampart Scandal from the late 1990’s. (AMF No. 10.)

-         Colomey was interviewed for the IA investigation by investigator Sergeant Scott Moffitt on or about March 1, 2019. (AMF No. 11.) Colomey explained in detail to Sgt. Moffit how the Police Officer III + 1s who make up the SWAT Mafia operate and exert control over SWAT. (AMF No. 12.) During Plaintiff’s IA interview, he told Sgt. Moffit that as Plaintiff had acquired more responsibility in SWAT, he had learned that there was a group of powerful Police Officer III + 1s who wielded undue influence in SWAT, which they used to try to create a conformist culture within the unit. (AMF No. 13.) Colomey informed Sgt. Moffit that on multiple occasions, SWAT trainings conducted by SWAT Mafia members instructed SWAT officers that the use of deadly force was permissible in situations when Department policy clearly dictated that it was not. (AMF No. 14.)

-         At the time of his disclosures to Sgt. Moffit, Colomey was aware that the use of deadly force could be a violation of both LAPD policies and of laws, such as civil rights under 42 U.S.C. section 1983 and Penal Code section 835a. (AMF No. 15.) Colomey told Sgt. Moffitt that the Police Officer III + 1s pressure officers to shoot, and if you don’t, you’ll be labeled a coward. (AMF No. 16.) Colomey explained to Sgt. Moffitt that the powerful Police Officer III + 1s who make up the SWAT Mafia routinely made decisions during tactical incidents without consultation or input from their sergeants. (AMF No. 17.)

-         During Colomey’s IA interview, he brought up the 2014 SWAT call resulting in Carlos Ocana’s death, during which Ocana was on a ladder leading from a building rooftop to a billboard. During that incident, a SWAT Police Officer III + 1s who made the decision to use his TASER on Ocana without consultation or input from supervisors. The officer’s tasing of Ocana caused Ocana to let go of the ladder and fall to the ground, dying from the impact. The Los Angeles Board of Police Commissioners adjudicated the SWAT officer’s use of his TASER on Ocana as out of policy; concluded that a reasonable officer with similar training and experience would not have deployed the TASER at the time the officer did under the same or similar circumstances; and also concluded that the SWAT officer failed to articulate facts to support his deviation from the approved tactical plan. (AMF No. 18.)

-         Regarding the SWAT officer’s tasing of Ocana, Colomey told the IA investigator during his March 2019 IA interview that “we don’t tase people on top of roofs without a plan, and he did it on his own, and the person was dead”, and further stated that “in my view, [the SWAT officer] killed a person.” (AMF No. 19.) Colomey believed that his statements to IA about the Ocana incident disclosed violations of law in that Officer Scallon failed to carefully and thoroughly evaluate the option of tasing Ocana, as required by Penal Code section 835a(a)(3) and 42 U.S.C. section 1983. (AMF No. 20.)

-         Colomey also brought up with the IA investigator the May 8, 2017 SWAT call during which Anthony Soderberg lost his life and twelve (12) out of the thirteen (13) SWAT officers’ discharge of their firearms was ruled out of policy. Specifically, Plaintiff told the IA investigator that, “All that shooting was us. We were shooting at each other,” referring to the fact that at a critical point during that incident, Soderberg was not armed but was being fired upon by a large number of SWAT officers. (AMF No. 23.) Colomey believed that his statements to IA about the Soderberg incident disclosed violations of law in that the majority of the officers who fired their guns at Soderberg that day used deadly force when it was not necessary in defense of human life, as required by Penal Code section 835a(a)(2), and such force was a civil rights violation pursuant to 42 U.S.C. section 1983. (AMF No. 24.)

-         SWAT School is a several month-long training and simulation process in which a select number of SWAT candidates participate. During the SWAT School, candidates can be “deselected,” or disqualified, for poor tactics during training scenarios. (AMF No. 25.) Colomey told IA that during the selection process for new members of SWAT School, the Police Officer III + 1s had undue influence over which candidates were selected or not selected. (AMF No. 26.)

-         Specifically, Colomey explained to the IA investigator that Police Officer III + 1s were permitted to provide the lieutenants with a list of which candidates the Police Officer III + 1s wanted to be selected for SWAT School before the backgrounds on candidates were even completed, and before the supervisors decided which candidates would be selected for the SWAT School. (AMF No. 27.) Police Officers who are selected to join SWAT receive bonus pay amounting to 16.5%. (AMF No. 28.) Historically, the SWAT supervisors would limit their selections of which candidates could attend the SWAT School by choosing only officers whose names were on the list provided by the Police Officer III+1s. (AMF No. 29.) Moreover, in making their selections, the Police Officer III + 1s evaluated candidates not based on their actual performance, but based on who the Police Officer III + 1s believed were aggressive candidates who leaned towards shooting, over candidates who were more slow and methodical before using force. (AMF No. 30.)

-         Colomey believed that his statements to IA about the Police Officer III + 1s’ influence in selecting and disqualifying officer candidates for SWAT disclosed violations of law pertaining to nepotism and favoritism, and that these Police Officer III + 1s’ false evaluation of SWAT candidates based on who would fit into a more aggressive use of force culture constituted a misuse of the Police Officer III + 1s’ positions to create a financial advantage for candidates who were like-minded in their views on using force over exercising restraint. (AMF No. 31.) Los Angeles City Municipal Code section 49.5.5 makes it unlawful for City employees to misuse or attempt to misuse their positions to create or attempt to create a private advantage or disadvantage, financial or otherwise, for any person. (AMF No. 32.)

-         Colomey detailed to Sgt. Moffitt specific instances in which SWAT Mafia members who had engaged in improper uses of force were not being properly disciplined or otherwise held accountable. (AMF No. 33.)

-         On September 13, 2019, Lt. McMillion stated to about half the platoon during a briefing at Elysian Park, “I have a copy of the investigation on my desk. Every time I read it, it raises my blood pressure. We have enemies in the platoon, and we have enemies who just left the platoon.” (AMF No. 36.) Officer John Walker heard this comment. (AMF No. 37.) That same day, Officer Walker reported Lt. McMillion’s statement to Plaintiff by telephone. (AMF No. 38.)

Taken together, Plaintiff’s evidence supports a reasonable inference that he made disclosures which he had reasonable cause to believe constituted violations of law.

In its motion, Defendant contends that an alleged whistleblower must identify the legal foundation for his suspicion at the time of the complaint, citing cases like Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 593. However, Ross does not state that a whistleblower must identify the specific laws being violated at the time of disclosure. Rather, Ross holds only that an employee disclose information and that the employee reasonably believe the information discloses unlawful or non-compliant activity. (Ross, supra, 36 Cal.App.5th at p. 593.)

In Ross, a deputy district attorney assigned to the homicide unit sued the County and others for violations of Labor Code section 1102.5, and other claims. The trial court granted summary judgment in favor of the County on the plaintiff’s claims. On appeal, the court of appeal reversed finding that the plaintiff district attorney engaged in protected conduct when, on several occasions, he informed his supervisors that he did not believe the DA’s Office could prove the case against a criminal defendant beyond a reasonable doubt, recommended further DNA testing, and recommended that the case be dismissed. (Ross, supra, 36 Cal.App.5th at pp. 584-585.)

Importantly, in Ross, while the deputy district attorney believed the district attorney's office was violating the defendant's due process rights by engaging in a malicious prosecution against the defendant, “he never expressly informed his supervisor or the assistant district attorney he believed the district attorney's office was violating state or federal law.” (Ibid.)

Accordingly, the Court disagrees with Defendant that Plaintiff was required to identify any statutes in his IA interview in order for his statements as described above to be protected disclosures under Labor Code section 1102.5. Rather, it would be sufficient for Plaintiff to convey information to the IA investigator that Plaintiff reasonably believed violated federal, state, and laws. This interpretation of section 1102.5 makes sense from a policy standpoint. To require potential whistleblowers to expressly identify the legal foundation for their disclosure would create inequitable barriers to protection by protecting those individuals who have either a legal background or the educational, economic, or social resources to conduct legal research and interpret legal statutes.

The Court also disagrees with Defendant’s contention that Plaintiff’s disclosures do not rise to the level of protected activity because “this case is not about perceived violations of federal or state statutes, rules, or regulations, but about perceived violations of the LAPD’s own internal policies.” (Defendant, 10: 10-11.)  In support, Defendant cites cases like Carter v. Escondido Union High School Dist. (2007) 148 Cal.App.4th 922, and Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 821-822 to argue that Plaintiff’s disclosures concerned violation of internal policies, rather than federal or state law.

However, first, the cases cited by Defendant are distinguishable given that the disclosures in those cases, unlike those here, did not, in fact, rise to level of disclosures about violations of law.

For example, in the case Carter, supra, 148 Cal. App.4th, a probationary high school teacher and basketball coach sued for wrongful termination after the district refused to renew his contract. (Id. at p. 925.) The plaintiff alleged, inter alia, that he had “blow[n] the whistle” by complaining to the school’s athletic director that another coach had recommended a protein shake to a student that had made the student sick. (Id. at p. 933, fn. 13.) The court held that the conduct was not protected by Section 1102.5 because the disclosure did not involve a violation of any federal or state statute, rule, or regulation. (Id. at p. 933.) As explained by the court, “Carter’s disclosure here was not whistleblowing under section 1102.5, but rather a routine ‘internal personnel disclosure’ that was, at its core, a disagreement between the football and basketball coaches about the proper advice to give to student athletes. This type of disclosure is not encompassed by section 1102.5 … .” (Id. at p. 934.)

In Mueller, supra, 176 Cal.App.4^th, a firefighter sued the County, based on the alleged retaliation he suffered after he expressed disapproval of a decision to transfer two firefighters in the department to another division. (Id. at p. 812.) The court concluded that the plaintiff’s claims “[did] not rise to the level of whistleblower retaliation. Matters such as transferring employees, writing up employees, and counseling employees are personnel matters.” (Ibid.) In so holding, the court explained that “[s]ection 1102.5 of the Labor Code requires that to come within its provisions, the activity disclosed by an employee must violate a federal or state law, rule or regulation. [Citation] … [T]his case is not about perceived violations of federal or state statutes, rules or regulations but rather about perceived violations of the department’s own policies which are local policies.” (Id. at pp. 821-822.)

Here, by contrast, Plaintiff has submitted evidence that he reported conduct that he reasonably believed was in violation of California Penal Code section 835a, 42 U.S.C. section 1983, Los Angeles City Municipal Code section 49.5.5, and other applicable local, state, and federal statutes, rules, and regulations. While Defendant may contend that Plaintiff only believed he was disclosing perceived violations of the department’s own policies, Plaintiff’s evidence supports a reasonable inference otherwise and thus is sufficient to create a triable issue of material fact. 

Second, while these disclosures may have also overlapped with LAPD policy, the fact that a policy violation exists in addition to a legal violation does not change the nature of Plaintiff’s disclosures from protected under Labor Code section 1102.5 to unprotected.  (See Mize-Kurzman v. Marin Community College District (2012) 202 Cal.App.4th 832, disapproved on other grounds in People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, 734, holding that it was reversible error for the trial court to instruct the jury with the language that “[d]ebatable differences of opinion concerning policy matters” were not protected disclosures under Labor Code section 1102.5, subdivision (b).)

Third, while Defendant suggests that it was already aware of the disclosures Plaintiff purportedly “blew the whistle” about, the California Supreme Court recently decided in Kolla’s, supra, 14 Cal.5th at p. 731 that an employee’s report of unlawful activities made to an employer that already knew about the violation is nevertheless a protected disclosure within the meaning of Labor Code section 1102.5.

In sum, Defendant’s motion only challenged the protected activity element of Plaintiff’s Labor Code section 1102.5 claim. In opposition, Plaintiff submitted evidence which supports a reasonable inference that he made disclosures that he reasonably believed constituted violations of law within the protection of Labor Code section 1102.5. As such, there are triable issues of material fact as to whether or not Plaintiff engaged in protected activity.

Based on the foregoing, Defendant’s motion for summary judgment is denied.

It is so ordered.

Dated:  August    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.