Judge: Joseph Lipner, Case: 22STCV35583, Date: 2023-08-17 Tentative Ruling
Case Number: 22STCV35583 Hearing Date: August 17, 2023 Dept: 72
8/17/2023
22STCV35583
(4/11/23 Order pp.
1-2.)
Defendant
County of Los Angeles (“Defendant”) has filed a Demurrer to the Second Amended
Complaint. The Court OVERRULES the
demurrer. Defendant shall answer the
Second Amended Complaint within 10 days of this order.
Judicial Notice -
Defendant requests that this Court take judicial notice of
the following:
Pursuant to CEC §§ 452(c) and 452(d)(1), the request is
granted, and the Court takes judicial notice of the items listed above.
ALLEGATIONS OF THE SECOND AMENDED COMPLAINT:
This case
stems from an alleged wrongful termination of William E. Jaeger (“Plaintiff”)
who is suing Defendant for violation of Labor Code § 1102.5. Plaintiff filed his
Second Amended Complaint (SAC) on April 10, 2023, and the SAC is now the
operative complaint.
The Second
Amended Complaint alleges the following facts.
Since November 1990, Plaintiff was employed by the County of Los Angeles
Sheriff’s Department. (SAC, ¶ 7.) On April 17, 2022, Plaintiff was promoted to
the position of Commander of the Professional Standards Division, whereby Plaintiff
oversaw the Internal Affairs Bureau, the Internal Criminal Investigations
Bureau, and the Advocacy Bureau. (SAC, ¶ 8.)
In April
2022, Plaintiff served on an Executive Force Review Committee (“EFRC”) charged
with reviewing the Internal Affairs Bureau investigation of the execution of a
search warrant which resulted in 69 rounds of fire. (SAC, ¶ 12.) Prior to the hearing, Plaintiff told the chief
of the Professional Standards Division and his fellow EFRC members that he
thought that there had been many policy violations during the incident and that
discipline should be imposed. (SAC, ¶ 13.) On April 7, 2022, the EFRC determined that the
tactics used by various participants in the execution of the search warrant had
been in violation of the LASD Tactical Operations Policy. (Id.)
The chief
of the Detective Division disagreed with the findings and the discipline
recommended by the EFRC. (Id.) On April 8, 2022, an assistant sheriff
removed Plaintiff from the EFRC, convened a new EFRC, and scheduled a new
hearing regarding the incident. (SAC, ¶ 17.) Plaintiff informed the chief of
the Professional Standards Division that a new hearing was in violation of EFRC
policies, rules, and/or regulations. Alvarez told Plaintiff that he had shown
the policy to other officials but that they did not care. (SAC, ¶ 18.)
On April 8,
2022, Plaintiff reported to an undersheriff that the new hearing was against
EFRC policies, rules, and/or regulations. (SAC, ¶ 18.) On April 18, 2022, the undersheriff told Plaintiff
that Plaintiff was being transferred out of the Professional Standards Division
to the Court Services Division effective immediately. (SAC, ¶ 20.) The undersheriff told Plaintiff that Plaintiff
was under significant pressure and that there were complaints that Plaintiff
was unresponsive. (Id.) Plaintiff alleges that the transfer to a less
prestigious assignment was due to his finding that the LASD had acted in
violation of the Tactical Operations Policy and recommending fair discipline.
ANALYSIS:
Legal Standard for Demurrer –
“[A] demurrer
tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235
Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the pleading
that are judicially noticeable. (See Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a
demurrer, a court may not consider declarations, matters not subject to
judicial notice, or documents not accepted for the truth of their contents].)
For purposes of ruling on a demurrer, all facts pleaded in a complaint are
assumed to be true, but the reviewing court does not assume the truth of
conclusions of law. (Aubry v. Tri-City
Hosp. Dist. (1992) 2 Cal.4th 962, 967.)
Defendant argues that this Demurrer
should be sustained because the SAC is a sham pleading, the allegations of the First
Amended Complaint (“FAC”) and the current SAC are inconsistent, and that
Plaintiff failed to comply with the requirements of the Government Claims Act.
The SAC is not a “sham pleading” and the allegations are
not inconsistent –
“Generally,
after an amended pleading has been filed, courts will disregard the original
pleading. However, an exception to this rule is found…where an amended complaint
attempts to avoid defects set forth in a prior complaint by ignoring them. The
court may examine the prior complaint to ascertain whether the amended
complaint is merely a sham.” (Vallejo Development Co. v. Beck Development
Co. (1994) 24 Cal.App.4th 929, 946.)
Here, Defendant argues that the
current SAC is a sham pleading because in the SAC, Plaintiff has alleged
violations of state law, while in prior filings, Plaintiff only alleged
violations of internal Los Angeles Sheriff’s Department (LASD) policies. (Demurrer,
9:25-28 and 10:1-2.) State law violations are necessary to establish a prima
facie case of retaliation under Labor
Code §1102.5. (See McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468 [“the 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.”])
This lack of alleged violations of
state law was cited as a deficiency by the Court in sustaining the demurrer to
the FAC. (See 3/21/23 Minute Order, p.2) Plaintiff remedied that deficiency
here in the SAC, fulfilling the very purpose of leave to amend. Additionally,
as evidenced by Plaintiff’s August 23 Government Claim filing, the same foundational
facts were alleged there, as here in the SAC. (See Request for Judicial Notice,
Exh. D.) Finally, Plaintiff points to Ross v. County of Riverside (2019)
36 Cal.App.5th 580, 592-593, where the Ross Court noted that California
Labor Code § 1102.5 does not require an express statement of the state or
federal law that was violated, simply that an employee disclose what they
reasonably believe is unlawful activity. Therefore, the Court declines to apply
the sham pleading doctrine.
Plaintiff Complied with the Requirements of the
Government Claims Act –
The Government Claims Act, outlined in Gov't. Code §§
810-996.6, requires that a plaintiff present a timely claim to the appropriate
public entity and that claim be either acted upon or deemed rejected by the
board. (Gov't. Code § 945.4.) Here, Plaintiff had submitted a timely claim,
however, Defendant contends that the factual basis for recovery is not “fairly
reflected” in the government claim. (Demurrer, 12:1-2.) The Court disagrees. In
his August 23 government claim filing, Plaintiff asserts facts that makes clear
what was at issue, even if applicable statutes were not named. The facts
outlined in that government claim show that after the April 7th
hearing, internal policies had been violated, and that Plaintiff as a member of
the EFRC who favored discipline, was then removed from that position. Those
same facts underlie the current SAC. (See Request for Judicial Notice, Exh. D,
see p.4-5.) “…the purpose of the [government]
claim is to give the government entity notice sufficient for it to investigate
and evaluate the claim…” (Connelly v. County of Fresno (2006) 146
Cal.App.4th 29, 38.) The government claim need not contain the
specificity of a pleading. (Ibid.) Defendant was given sufficient
notice.