Judge: Joseph Lipner, Case: 22STCV35583, Date: 2025-04-10 Tentative Ruling

Case Number: 22STCV35583    Hearing Date: April 10, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant County of Los Angeles (“Defendant”) moves for summary judgment on the single cause of action for retaliation in violation of Labor Code, section 1102.5 asserted in the Second Amended Complaint (“SAC”) filed by Plaintiff William E. Jaeger (“Plaintiff”).

The Court DENIES the motion for summary judgment.

Background

This is an employment retaliation case. The following facts are taken from the parties’ separate statements. The Court resolves all disputes and ambiguities in favor of the nonmoving party.

Plaintiff was an employee with the Los Angeles Sheriff’s Department (“LASD”), a department of Defendant County of Los Angeles, since 1990. (Undisputed Fact (“UF”) 2.)

On June 10, 2021, LASD assigned Plaintiff to the Professional Standards Division as Acting Commander. (UF 3.) As Commander of the Professional Services Division, Plaintiff oversaw the Internal Affairs Bureau, the Internal Criminal Investigations Bureau, and the Advocacy Bureau. (UF 4.)

In April 2022, Plaintiff served on an Executive Force Review Committee (“EFRC”) charged with reviewing the Internal Affairs Bureau investigation of a police shooting that occurred on May 13, 2021 during the execution of a search warrant (the “Incident”). (UF 5, 10.) The EFRC consisted of three Commanders and was tasked with making recommendations as to any corrective action or discipline deemed necessary for any LASD personnel found to have violated the tactical policies of LASD that are designated to prevent excessive uses of force in violation of state and federal law. (UF 6.)

On April 7, 2022, the hearing on the Incident consisted of Plaintiff, Commander Jason P. Wolak, and Commander Alfred M. Reyes. (UF 7.) Plaintiff was the Chairperson of the EFRC. (UF 8.) Testimony from a variety of witnesses was presented. (UF 9.)

At the hearing, Chief Chris E. Marks of the Detective Division and Chief Jorge A. Valdez of the East Patrol Division repeatedly expressed their opinion that no discipline should be imposed on any of the individuals involved in the shooting. (UF 10.) Marks and Valdez insisted that the personnel involved were only in need of additional training. (UF 11.)

At the hearing, Plaintiff stated that many members of LASD’s Detective Division and elite units were going to act outside of the force policies because they thought they could get away with it. (UF 12.) Plaintiff also protested that discipline was rarely imposed on the LASD Detective Division even when such discipline was merited. (UF 13.)

At the conclusion of the April 7, 2022 hearing, the EFRC determined that the tactics used by various participants had been in violation of the LASD Tactical Operations Policy. (UF 14.) The EFRC found that Lieutenant David Auner had violated the LASD Tactical Operations Policy and recommended an eight-day suspension of pay and benefits. (UF 15.) Chief Marks did not concur with any of the findings or discipline recommended. (UF 16.) Because the EFRC and the Division Chief were not in agreement, the next step pursuant to LASD policy would have been for then-Sheriff Alex Villanueva to make a final decision as to the outcome. (UF 17; UF 22; RUF 22.)

On April 8, 2022, Assistant Sheriff Holly Francisco removed Plaintiff from the EFRC and convened a new EFRC. (UF 18.) A new hearing was scheduled, although the parties dispute when the scheduling occurred. (UF 18; Response to Undisputed Fact (“RUF”) 18; UF 21.)

On the same day, Plaintiff informed Chief Edwin Alvarez, to whom Plaintiff directly reported at the Professional Standards Division, that a new hearing was in violation of LASD’s rules, policies, or regulations. (UF 21, 24.) Alvarez responded by telling Plaintiff that he had shown the policy to Assistant Sheriff Francisco and that the decision to hold a new hearing was final. (UF 23.)

On the same day, April 8, 2022, Plaintiff spoke to Undersheriff Tim Murakami and reported to him that the new hearing on the Incident was against EFRC policies, rules, or regulations, and would discredit LASD’s commitment to proper investigations and oversight of major uses of force as required by California law. (UF 24.) Murakami told Plaintiff that he understood. (UF 25.)

On April 15, 2022, Murakami informed Plaintiff that Plaintiff was being transferred out of the Professional Standards Division to the Court Services Division. (UF 27; RUF 27.) Murakami stated that Plaintiff may have had a conflict of interest with respect to the Incident because Lieutenant Auner’s wife had named Plaintiff as a defendant in a lawsuit approximately five years prior to the EFRC hearing. (UF 28.) Plaintiff told Murakami that no such conflict of interest or bias existed and that this was the first time that anybody had raised the issue with him. (UF 29.) Plaintiff asked Murakami not to transfer him because doing so would send a “horrible message” (UF 30) to other members of the Professional Standards Division and to everyone in LASD who, fully aware of his transfer to the Court services division, would be afraid to properly oversee and review LASD uses of force. (UF 30.) Plaintiff further told Murakami that everyone in LASD was going to know why he had been transferred and it would do nothing but discourage others from speaking out about improper uses of force. (UF 31.) Plaintiff argued that the entire point of the EFRC was independent review of uses of force and that further communication with Chief Marks would have been useless because he was adamant in his position that no discipline was warranted. (UF 32.) Plaintiff told Murakami that LASD was covering up the Incident that had been a misuse of force. (UF 33.) Plaintiff believed that he was disclosing information regarding a violation of state law to Murakami – specifically, Plaintiff believed that Defendant’s conduct violated Penal Code, section 835a. (UF 43.)

Before leaving for the Court Services Division, Plaintiff met with every investigator in the Professional Standards Division and the Internal Affairs Bureau to tell each one that he or she had a duty to conduct proper investigations and to stand up and do the right thing. (UF 34.)

On April 17, 2022, Plaintiff’s pay was adjusted to be commensurate with his rank of Commander. (UF 26; RUF 26.)

On April 18, 2022, Plaintiff reported to the Court Services Division as ordered. (RUF 35.)

Lieutenant David Auner is married to Lucy Auner, who is also employed by LASD as a Sergeant. (AF 17.) In 2017, Lucy Auner and Kristen Aufdemberg filed a complaint for damages against Defendant County of Los Angeles. (AF 17.) Plaintiff was not named a defendant in Lucy Auner’s complaint. (AF 17.)

Although David Auner knew of Plaintiff’s assignment to the EFRC “several weeks or a few months prior” to the May 13, 2021 EFRC hearing, he did not accuse Plaintiff of a conflict of interest until after the hearing. (AF 15; see Plaintiff’s Ex. 9, Auner Dep. at 23:25-25:16.) The accusation that Plaintiff had a conflict of interest was never investigated by Francisco or Murakami. (RUF 51.) Although Chief Alvarez eventually ordered Captain Shawnee Hinchman to investigate the alleged conflict of interest after Plaintiff’s transfer, no such investigation ever happened and no determination of a conflict of interest was ever reached. (AF 16.) Plaintiff maintains that he did not have a conflict of interest. (AF 13.)

Francisco testified at her deposition that Plaintiff had asked to be removed from the EFRC. (RUF 51.) Chief Alvarez similarly testified that Plaintiff was removed from the EFRC at his own request. (Additional Fact (“AF”) 6.) However, Plaintiff had never asked to be removed. (RUF 51; AF 7.)

Alvarez and Murakami both stated that Plaintiff was transferred to the Court services division because Plaintiff was under a lot of stress. (AF 8.) However, Plaintiff was not under significant stress that required a transfer. (AF 9.)

Plaintiff filed this action on November 9, 2022. The operative complaint is now the SAC, which raises one claim for retaliation under Labor Code, section 1102.5.

On November 26, 2024, Defendant moved for summary judgment. Plaintiff filed an opposition and Defendant filed a reply.

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. Atlantic Richfield Co., supra, 25 Cal.4th at p. 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.) 

“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, at pp. 844-845 [quotation marks omitted].) 

“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.” (Code Civ. Proc., § 437c, subd. (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.” (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) “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.)

Discussion

The Labor Code’s whistleblower provision prohibits an employer from retaliating against an employee who reports a violation of state or federal statute or a local, state or federal rule or regulation or who refuses to participate in any activity that would result in a violation of law. (Lab. Code, § 1102.5.) To prevail on whistleblower retaliation claim, a plaintiff must establish that their alleged protected activated was a contributing factor in the adverse action taken against them. (Lab. Code, § 1102.5.)

Section 1102.5 “imposes a requirement of objective reasonableness and excludes from whistleblower protection disclosures that involve only disagreements over discretionary decisions, policy choices, interpersonal dynamics, or other nonactionable issues. Moreover, an employer accused of retaliation in violation of section 1102.5(b) can rebut the charge by ‘demonstrat[ing] by clear and convincing evidence that the alleged [retaliatory] action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.’ [Citation.]” (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 734.)

Protected Activity

In proving a retaliation claim, “an employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.)

Defendant contends that there is no law that Plaintiff could have reasonably believed was violated. Defendant argues that the EFRC’s activity “amounts to no more than internal personnel matters, and any disagreements Plaintiff may have had with his colleagues and superiors over meting out discipline to LASD personnel would involve internal policy decisions, not violations of federal, state, or local statutes, regulations, or rules[.]” (Motion at 14:12-16.)

The Court disagrees. Plaintiff could have reasonably believed that LASD had violated Penal Code, section 835a.  This statute reads as follows:

“The Legislature finds and declares all of the following:

(1) That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.

(2) As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.

(3) That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.”

(Pen. Code, § 835a, subd. (a) [emphasis added].)

            Thus, review of officer use of force is not mere internal personnel management of an average business; it is a matter on which the state legislature has prescribed clear state policy due to its impact on human life. In fact, the policies of LASD regarding use of force were formulated in order to ensure that state and federal laws regarding excessive force are not violated.

Defendant argues that Plaintiff could not reasonably have believed that he was disclosing a violation of law because there is no federal, state, or local statute or regulation that obligated Defendant to adopt Plaintiff’s recommendations on discipline. But Plaintiff is not contending that Defendant’s failure to adopt Plaintiff’s recommendations is the violation. It is not necessary for Plaintiff to show that he reasonably believed that the EFRC needed to toe the line of Plaintiff’s recommendations – Plaintiff need only show that he reasonably believed that the EFRC was not carefully and thoroughly evaluating a use of force incident. (Pen. Code, § 835a, subd. (a)(3).) While section 835a does not set an especially high or intensive standard, bad faith conduct to avoid a careful and thorough investigation, such as Plaintiff suspected, would violate it. The fact that Plaintiff was removed from the EFRC shortly after recommending discipline, and a new EFRC without Plaintiff was convened to evaluate the same incident, made it reasonable to believe that section 835a was being violated in that instance. It further made it reasonable for Plaintiff to believe that others in the department would be preemptively discouraged from carefully and thoroughly evaluating use of force incidents

The Court therefore finds that Plaintiff engaged in protected activity.

Adverse Employment Action

“An ‘adverse employment action,’ which is a critical component of a retaliation claim, requires a substantial adverse change in the terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063, quotation marks omitted.)

“Appropriately viewed, this provision protects an employee against unlawful discrimination with respect not only to so-called “ultimate employment actions” such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1054.) This standard is construed liberally – “although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Id. at p. 1052.)

“ ‘ “[A] materially adverse [employment] change might be indicated by ... significantly diminished material responsibilities” ’ ” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389–1390 [37 Cal.Rptr.3d 113, 121] disapproved of on other grounds by Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703.) In Patten, the plaintiff was transferred from a principal position in an underperforming middle school characterized as requiring immediate intervention to a magnet middle school for high-achieving students comprised of about 240 students. (Id. at p. 1389.) The Court of Appeal found triable issues as to whether this constituted an adverse action because the magnet school “does not present the kinds of administrative challenges an up-and-coming principal wanting to make her mark would relish.” (Ibid.)

Here, Plaintiff has presented evidence that his transfer out of the Professional Standards Division to the Court Services Division was detrimental to his career. The Professional Standards Division was more prestigious than the Court Services Division according to both Plaintiff and Auner, and the Court Services Division had previously served as an outlet for employees that sheriff leadership wanted to sideline. (AF 14.) The transfer was also detrimental to Plaintiff’s reputation. (AF 14.)

Plaintiff has therefore presented a triable issue of fact that the transfer was an adverse action.

Causation

            “Section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.)

Defendant contends that Defendant would have taken the allegedly adverse action for legitimate, independent reasons regardless of Plaintiff’s protected activity. In particular, Defendant contends that Plaintiff had a conflict of interest due to his involvement in Lucy Auner’s lawsuit and it was therefore improper for Plaintiff to sit on the EFRC.

The Court rejects this ground for summary judgment for two reasons. First, Plaintiff has presented evidence that LASD did not seriously investigate the potential conflict of interest and evidence that there may not have been a conflict of interest. Second, even if Plaintiff would have inevitably been removed from the EFRC, that is not the adverse action complained of in this action. Plaintiff contends that it was his transfer to the Court Services Division that was the adverse action taken in retaliation against Plaintiff for his complaints of unlawful conduct to Murakami.

Thus, it is not even necessary to resolve the question of whether Plaintiff had a conflict of interest to determine whether the transfer was retaliatory.  Plaintiff has presented evidence that it was. Plaintiff disputes Defendant’s contention that Plaintiff was transferred due to stress that he suffered in the Professional Standards Division. Further, the very close temporal proximity of the transfer to the EFRC hearing would allow a reasonable trier of fact to conclude that the two events were connected.

The Court therefore finds that there is a triable issue of fact that Plaintiff was transferred due to his protected activity.

The Court therefore denies the motion for summary judgment.