Judge Kerry Bensinger, Case Number: 23STCV10646, Date: 2025-02-13 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF’S COMPLAINT OR IN THE ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION OF ISSUES

Plaintiff Benjamin Graves (Graves or Plaintiff) was employed by defendant Pasadena Unified School District (PUSD) at Focus Point Academy. Most recently, Graves worked as a Special Education Teacher. As alleged in Graves’s Complaint, throughout his employment, Graves witnessed defendant Michael Bell (Bell), Focus Point Academy’s Principal, engage in sexually inappropriate and harassing behavior. Graves also witnessed Bell and Resource Teacher Donna Shepard (Shepard) falsifying attendance records and Individual Educational Programs records.

In October 2021, Graves complained of these practices to Bell and Shepard, but nothing was done in response. Graves also submitted a grievance to the union regarding Shepard’s falsification of records. The union refused to investigate the grievance.

Shortly thereafter, Bell presented Graves with a false write-up for being late to work. Plaintiff alleges he was not late to work.

In January 2022, union president Allision Steppes (Steppes) informed Plaintiff that Bell and PUSD had decided to terminate Plaintiff’s employment. No reason for the termination was given. Steppes told Graves he could either accept a letter of “non-reelection,” which would be reported to the California Teacher’s Commission, or, in the alternative, he could resign. Graves understood that being reported to the California Teacher's Commission would affect his teaching credential. On that basis, Graves believed he had no choice but to resign in a forced resignation. Graves’s resignation date was effective June 3, 2022. Plaintiff filed an administrative complaint against Defendants with the Department of Fair Employment and Housing (DFEH) on May 11, 2023 and received a Notice of Case Closure/Right-to-Sue Letter on the same day.

On May 11, 2023, Graves commenced this action against PUSD and Bell (hereafter, Defendants) for (1) Sexual Harassment/Hostile Work Environment in Violation of FEHA, (2) Retaliation in Violation of FEHA, (3) Failure to Prevent Discrimination, Harassment and/or Retaliation in Violation of FEHA, and (4) Retaliation for Reporting Illegal Violation, Cal. Lab. Code § 1102.5.

On May 3, 2024, Defendants filed this motion for summary judgment, or in the alternative, summary adjudication of issues. [1]

When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿ A motion for summary judgment must 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.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia 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 seeking summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) 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).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, 25 Cal.4th at p. 854.)¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 (Gaggero).)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “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.)¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz); Aguilar, 25 Cal.4th at pp. 844-45.)¿ “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.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

Plaintiff submitted eleven (11) objections (1-11) to the Declaration of Michael Bell (Bell Decl.) and eight (8) objections (12-19) to the Declaration of Dr. Sergio Canal (Canal Decl.) submitted in support of the reply.

The court notes at the outset, “If evidentiary objections are important to the ruling on a summary judgment motion, … [l]imit your objections to those that “really count”—i.e., items of evidence that may be outcome-determinative…. Moreover, blunderbuss objections to virtually every item offered by the opposing party may lead to “informal reprimands or formal sanctions for engaging in abusive practices.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2024) ¶ 10:210.3, citing Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.)

· identify the name of the document in which the objectionable material is located;

· state the exhibit, title, page and line number of the material objected to;

“The written objections must follow one of two formats set forth in CRC 3.1354(b):

· The first format places each item of evidence objected to in one paragraph, followed by a paragraph stating the objection;

· the second format places the evidence objected to in one column and the objection in an adjacent column. [See CRC 3.1354(b)]”

(Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2024) ¶ 10:212; see also Court Information Statement for Department 31 re: Evidentiary Objections and Cal. R. Ct., rule 3.1354.)

Here, Defendants submit five (5) objections to portions of Exhibits 1, 2, 4, and 5 which are attached to the Declaration Aku Sachani, nineteen (19) objections to the Declaration of Benjamin Graves, and sixty-two (62) objections to Plaintiff’s Opposing Separate Statement.

Defendants did not number their objections to the Sachani Declaration or Graves Declaration, nor did they quote the objected-to passages. Further, Defendants raise the same evidentiary objections in their response to Plaintiff’s separate statement. This practice is improper and duplicative. “The objection may not be restated or reargued in the separate statement.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2024) ¶ 10:211.2, citing Cal. R. Ct., rule 3.1354(b).) The court declines to rule on Defendants’ improperly formatted and presented objections. (See Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [a trial court does not abuse its discretion by declining to rule on improperly formatted objections or to deny an opportunity to reformat the objections].)

The Complaint alleges four causes of action. PUSD seeks summary judgment, or alternatively, summary adjudication of each cause of action. Bell seeks summary adjudication of the First and Fourth Causes of Action. The court addresses each in turn.

The First Cause of Action is based on the following allegations: Throughout Plaintiff’s employment, Plaintiff witnessed Defendant Michael Bell, Focus Point Academy’s Principal, engage in sexually inappropriate and harassing behavior. (Complaint, ¶ 19.) Defendant Bell referred to female coworkers using inappropriate and sexually charged names, discussed the physical features of coworkers in a sexual manner, and openly discussed his sexual fantasies of other co-workers. (Complaint, ¶ 20.) Plaintiff also witnessed Defendant Bell discuss the physical features of minor students in a sexual manner and speculate about their sex lives. (Complaint, ¶ 21.) Defendant made the aforementioned comments on a weekly basis to Plaintiff throughout Plaintiff’s employment. (Complaint, ¶ 22.) The harassment was based on Plaintiff’s gender. (Complaint, ¶ 33.)

The FEHA states: “It is an unlawful employment practice . . . [f]or an employer, …or …, any other person, because of …, gender, …, to harass an employee….” (Gov. Code, § 12940, subd. (j)(1).) “To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [he] is a member of a protected class; (2) [he] was subjected to unwelcome harassment; (3) the harassment was based on [his] protected status; (4) the harassment unreasonably interfered with [his] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hosp. Assn. (2019) 37 Cal.App.5th 568, 581.)

Defendants argue the sexual harassment/hostile work environment claim fails because Plaintiff cannot prove that any harassment or hostile work environment was based on Plaintiff’s protected status. The court agrees with this observation in considerable part. It is Plaintiff’s initial burden to establish a prima facie case of a hostile work environment. However, Plaintiff’s opposition eschews any discussion or application of the evidence with respect to the prima facie elements. And, as relevant here, Plaintiff offers zero evidence or argument to establish that the harassment was based on Plaintiff’s protected status (third element).

PUSD and Bell’s motions for summary adjudication of the First Cause of Action are GRANTED.

The Second Cause of Action is based on the following allegations: Throughout Plaintiff’s employment, Plaintiff witnessed Defendant Bell and Resource Teacher Donna Shepard falsifying attendance records and falsifying Individual Educational Program

records. (Complaint, ¶ 23.) In or around October 2021, Plaintiff openly questioned these practices and complained of them to Defendant Bell and Resource Teacher Donna Shepard, but nothing was done in response. (Complaint, ¶ 24.) On or about October 18, 2021, Plaintiff submitted a grievance to the United Teachers Pasadena President Allision Steppes regarding Donna Shepard’s falsifying of records and mocking his appearance to co-workers with reference to his race, among other complaints. Ms. Steppes told Plaintiff that United Teachers Pasadena refused to investigate Plaintiff’s grievance on the grounds that Ms. Shepard was in the same union as Plaintiff. (Complaint, ¶ 25.) Shortly thereafter, on or about October 26, 2021, Defendant Bell presented Plaintiff with a false write-up for being late to work when Plaintiff was not late to work. (Complaint, ¶ 27.) In or around January 2022, United Teachers Pasadena President Steppes informed Plaintiff that Defendant Bell and Defendant Pasadena Unified School District had decided to terminate Plaintiff’s employment. Ms. Steppes did not give Plaintiff a reason for the termination. (Complaint, ¶ 28.)

FEHA retaliation claims are subject to the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas) burden-shifting analysis. (Yanowitz, supra, 36 Cal.4th at p. 1042.) To establish a prima facie case of retaliation, a plaintiff must show that: (1) plaintiff engaged in protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer’s action were causally connected. (Yanowitz, supra, 36 Cal.4th at p. 1042.)

PUSD argues this cause of action fails because Plaintiff did not plead nor prove that he was retaliated against because he is a member of a protected class. PUSD is incorrect. To state a prima facie case of retaliation, a plaintiff does not need to establish membership in a protected class. Rather, a plaintiff must show he or she was engaged in a protected activity. (See Yanowitz, supra, 36 Cal.4th at p. 1042.)

PUSD next challenges Plaintiff’s prima facie showing. In a jumbled and confusing manner, PUSD argues Plaintiff did not engage in a protected activity under the FEHA because PUSD did not receive any complaints from Plaintiff about Bell nor is there evidence that Plaintiff complained about discrimination or harassment based on a protected class.

PUSD is misses the mark. As alleged, Plaintiff complained of Bell’s conduct to Bell. (Complaint, ¶ 24.) PUSD does not cite any authority for the proposition that a complaint must be made to some alternative supervisor/employer when complaining of another employee’s conduct. It is undisputed that Bell was the Principal of Focus Point Academy and Plaintiff’s superior. Given Bell’s status as Principal and as the person who was engaging in the alleged conduct for which Plaintiff complained, Bell undisputably had the authority and ability to correct the conduct. PUSD’s additional argument is similarly unsupported. There is no requirement the protected activity must be a complaint about discrimination or harassment based on a protected class.

Plaintiff states a prima facie case of retaliation. In his declaration, Plaintiff states that he complained about the hostile environment created by Bell’s behavior and “implored Mr. Bell to stop engaging in his sexualized behavior, on various instances.”[2] (Graves, Decl., ¶ 25.) Plaintiff also states that he witnessed Bell and Shepard engaged in illegal behavior, including falsifying attendance records and falsifying Individual Educational Programs (IEP). (Graves, Decl., ¶ 26.) On October 18, 2021, Plaintiff contacted United Teachers Pasadena (the union) to file a grievance against Shepard for falsifying IEP documents, among other things. (Graves, Decl., ¶ 30.) Bell provided Shepard with administrative authority and was allowed to exercise Bell’s authority by proxy. (Graves, Decl., ¶ 27.) On October 26, 2021, Bell retaliated against Plaintiff with a write-up for being late to work when, in fact, Plaintiff was not late to work. (Graves, Decl., ¶ 31.) Union representative Steppes informed Shepard and Bell about Plaintiff’s attempt to file a grievance against Shepard. (Graves, Decl., ¶ 32.) In late December 2022, Steppes informed Plaintiff that Bell and PUSD had decided to terminate his employment. (Graves, Decl., ¶ 33.)

Stated in another way, the foregoing evidence establishes that Plaintiff engaged in two instances of protected activity: complaining to Bell about Bell’s conduct and submitting a grievance to the union regarding Shepard’s alleged falsification of IEP documents. The evidence also establishes that Shepard and Bell had a close relationship. That relationship supports the inference that Bell falsely wrote Plaintiff up for being late because Plaintiff submitted a grievance to the union about Shepard’s conduct. Further, Plaintiff’s complaints about Bell and Shepard’s conduct are similarly connected to Plaintiff’s recommended non-reelection (termination) roughly two months after submitting the grievance. Plaintiff establishes all three prima facie elements. The burden shifts to PUSD.

PUSD argues that the shortfalls in Plaintiff’s job performance justified PUSD’s response. Bell attempted to coach Plaintiff to help correct his performance shortcomings, but to no avail. Plaintiff’s failures precipitated the recommendation for Plaintiff’s non-reelection. Specifically, Bell states he “recommend[ed] not to re-elect plaintiff to his employment due to the following reasons: Mr. Graves had not yet obtained a preliminary teaching credential or a permanent teaching credential in special education that was a requirement for a permanent teaching position at Focus Point Academy, and I also had concerns with his performance as noted on his last evaluation, which he did not show any improvement in after receiving constructive advice for improvement. I had no authority to hire any employee as that was done through human resources. I also had no authority to terminate any employee as that required the approval of human resources, I could only recommend non re-election when mandated.” (Bell Decl., ¶ 9.) The burden shifts.

Plaintiff’s evidence raises triable issues of material fact regarding pretext sufficient to preclude summary judgment. The close proximity between Plaintiff’s recommended non-reelection and submitting a grievance regarding Shepard’s conduct raises triable issues of material fact regarding pretext. As the appellate court stated in Moore, “the timing of the events leading up to Moore’s termination could suggest that something other than simple restructuring was at play.” (Moore, supra, 248 Cal.App.4th at p. 860.) Indeed, “[p]retext may … be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination.” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479.) “[M]any employment cases present issues of intent, ... motive, and hostile working environment, issues not determinable on paper. Such cases ... are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.)

PUSD’s motion for summary adjudication of the Second Cause of Action is DENIED.

3. Third Cause of Action for Failure to Prevent Discrimination, Harassment and/or Retaliation in Violation of FEHA

Plaintiff alleges that Defendants failed to take all reasonable steps necessary to prevent harassment based on Plaintiff’s sex and race. (Complaint, ¶ 57.) Plaintiff suffered and continues to suffer harm because of Defendants’ sexual harassment and hostile work environment, as well as Plaintiff’s forced resignation. (Complaint, ¶ 58.)

A cause of action for failure to prevent discrimination or retaliation requires the following elements: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to discrimination/retaliation in the course of employment; (3) defendant failed to take all reasonable steps to prevent the discrimination/retaliation; (4) plaintiff was harmed; and (5) defendant’s failure to take all reasonable steps to prevent discrimination/retaliation was a substantial factor in causing plaintiff’s harm. (CACI No. 2527; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.)¿ “The employer’s duty to prevent discrimination and retaliation is affirmative and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035.)

This cause of action is intertwined with Plaintiff’s retaliation claims. Given the court’s ruling regarding those claims (the Second Cause of Action), the court finds there are triable issues regarding Plaintiff’s claim for failure to prevent retaliation.

PUSD’S motion for summary adjudication of the Third Cause of Action is DENIED.

4. Fourth Cause of Action for Retaliation for Reporting Illegal Violation, Cal. Lab. Code § 1102.5

The Fourth Cause of Action is based on the same allegations as the Second Cause of Action. (Complaint, ¶¶ 23, 24, 25, 27, 28.) Plaintiff also alleges that he complained to Defendants regarding certain practices by Defendants that Plaintiff reasonably believed were unlawful, such as harassment and the falsification of documents. (Complaint, ¶ 65.) Plaintiff complained about those perceived illegal violations to persons with authority over Plaintiff and other employees of Defendants that had the authority to investigate, discover, or correct those

illegal violations. (Complaint, ¶ 66.) As a result of the foregoing complaints by Plaintiff, Defendants retaliated against Plaintiff by terminating Plaintiff, rather than taking appropriate actions to investigate or correct the perceived unlawful practices. (Complaint, ¶ 67.)

To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer's action. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387.) Protected activity includes an employee’s disclosure of what the employee reasonably perceives to be a violation of law. (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592.)

Defendants argue the Fourth Cause of Action fails for two reasons: (1) plaintiff did not comply with the claims presentation requirements as to this claim; and (2) plaintiff did not “blow the whistle” on anything. Even if he did, there is no causal connection between that activity and his recommended non-reelection. Further, as to Bell, the Fourth Cause of Action fails because Bell was not Plaintiff’s employer.

Beginning with the last argument, the court agrees the Fourth Cause of Action cannot be maintained against Bell. The plain language of the whistleblower statute directs this conclusion. It states, in pertinent part, “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee ….” (Labor Code §1102.5, subd. (b).) In other words, the employer is liable for violation of section 1102.5 if it retaliates, or if its employee retaliates against another employee. Defendant Bell cannot be held personally liable for this claim. Accordingly, summary adjudication of this Fourth Cause of Action as to Bell is GRANTED.

Defendants argue that Plaintiff failed to comply with the claim presentation requirement. In support, Defendants offer the Declaration of Nancy P. Doumanian, the attorney of record for Defendants. Ms. Doumanian states that she has reviewed the business records of PUSD and has not located any claim for damages that was presented by or on behalf of the plaintiff. (Doumanian Decl., ¶ 2.) Plaintiff submits evidence to show a claim for damages was presented to PUSD. (See Sachani Decl., Ex. 5.) In an apparent concession, Defendants do not raise the argument in reply. The Fourth Cause of Action does not fail on these grounds.

Labor Code section 1102.5, subdivision (b) provides, “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.”¿ (Lab. Code, § 1102.5, subd. (b).)¿¿¿

The court notes that Labor Code section 1102.6, and not the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, sets forth governing framework for evaluation of a whistleblower retaliation claim under Labor Code section 1102.5.¿ (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.)¿ “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 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.¿ (Id.)¿

Here, the court has already denied summary adjudication of the Second Cause of Action for retaliation in violation of FEHA. In so denying, the court found there were triable issues with respect to Plaintiff’s protected activity (complaining about Bell’s conduct and reporting Shepard’s conduct) and the recommended non-reelection. Plaintiff meets his burden to show the protected activity was a contributing factor in the contested employment action. The court further finds that Defendants have not met their burden to show by clear and convincing evidence that it would have recommended non-retention for legitimate, independent reasons even if Plaintiff had not engaged in protected activity.

PUSD’s motion for summary adjudication of the Fourth Cause of Action is DENIED.

As to the First Cause of Action, Defendants Pasadena Unified School District’s and Michael Bell’s motions for summary adjudication are Granted.

As to the Second and Third Causes of Action, Defendant Pasadena Unified School District’s motion for summary adjudication is Denied.

As to the Fourth Cause of Action, Defendant Michael Bell’s motion for summary adjudication is Granted.

As to the Fourth Cause of Action, Defendant Pasadena Unified School District’s motion for summary adjudication is Denied.

Kerry Bensinger

Judge of the Superior Court

[1] Defendants filed a Separate Statement that spans 104 pages. Plaintiff filed a Separate Statement that spans 125 pages. “The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) There is nothing convenient or expeditious about the parties’ separate statements. In Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 874–876 (Beltran), the Court of Appeal discussed the substantive and procedural complications presented by hyper-inflated separate statements. Needless to say, the appellate court was highly critical of the parties’ presentations. The separate statements at issue in Beltran exceeded 100 pages. Those same concerns and problems identified by the Beltran Court apply here.

[2] The court notes that Plaintiff does not establish when he complained to Bell.