Judge: Martha K. Gooding, Case: 2021-01194060, Date: 2022-10-17 Tentative Ruling

Motion for Judgment on the Pleadings

Before the Court is a Motion by Defendant County of Orange for Judgment on the Pleadings on the Complaint filed by Plaintiff Jennifer Kearns in this Action (the “Complaint”). The Court GRANTS the Motion with 20 days leave to amend.

Plaintiff asserts a single cause of action for Whistleblower Retaliation under Labor Code §1102.5.

Plaintiff alleges she was a District Attorney Investigator beginning in 2017, and in 2017 and 2018 she was assigned to work on a criminal investigation involving two individuals, Grant Robicheaux (“Robicheaux”) and Cerissa Riley (“Riley”).  Complaint (“Compl.”)  ¶¶ 12-14, 17.  Charges ultimately were filed against both individuals by the Orange County District Attorney (“OCDA”) (Compl. ¶23), and in October 2018, a first amended criminal complaint was filed against them naming additional alleged victims.  Id. ¶ 28.  While the criminal action was pending, a new District Attorney (“DA”) was elected in Orange County, who assumed office in January 2019.   Beginning July 2019, the new DA began dismantling the prosecution team by removing the Deputy District Attorney (“DDA”) who had been assigned to the team and removing an assistant DA investigator from the team.  Id. ¶¶ 35-36. 

In October 2019, the DA initiated a de novo review of the evidence in the Robicheaux/Riley case.   Id. ¶ 39.  In late 2019, Plaintiff met with the DDAs who were conducting that review, and shortly thereafter Plaintiff was instructed not to conduct any further investigatory work on the case and to stop contacting the DDAs about the case.  Compl. ¶¶ 42-43.  Plaintiff alleges the meeting was a “setup” to scrutinize her performance, rather than to evaluate the state of the evidence in the case.  Id. ¶ 42.

The de novo review concluded on or about January 29, 2022.  The next day – January 30, 2022 – Plaintiff was removed from her role as lead investigator on the case and “placed on administrative leave without explanation, she was stripped of her peace officer status, and she was further escorted out of the OCDA under a cloud of suspicion.  Plaintiff remained on administrative leave for more than six months.”  Compl. ¶¶ 44-45.  “Thereafter, Plaintiff learned that she faced possible discipline related to her role investigating the case.”  Id. ¶ 46.

On or about July 2, 2020, Plaintiff filed a Government Claim for Damages Pursuant to Government Code sections 905 and 910, et seq., alleging claims against the OCDA/Orange County of whistleblower retaliation based on these events (the “Government Claim”).  Compl. ¶ 50.

On or about July 29, 2020, Plaintiff received an “unwarranted written reprimand” criticizing her performing related to the investigation of the Robicheaux/Riley case.  Id. ¶ 51.

(The Court notes Plaintiff does not allege when her administrative leave ended, whether it was with or without pay, when she returned to work, or whether she returned to work at the same position; it does not appear from the Complaint that Plaintiff was terminated at the end of her administrative leave period or demoted, but rather that she was only issued some kind of “written reprimand.”)

Plaintiff alleges that as a result of her disclosures of incriminating evidence against Robicheaux and Riley within the OCDA office, and because of her reports that she experienced retaliation for these disclosures, the DA and his subordinates “have continued to undermine Plaintiff’s credibility, reputation, and good standing as a DA investigator including by issuing her an unwarranted written reprimand and tainting Plaintiff’s personnel records as ‘Brady material’ without any proper basis or justification, thus significantly compromising Plaintiff’s ability both to perform her duties as a DA investigator and to advance or promote in her career.”  Id. ¶ 56.

A defendant may bring a motion for judgment on the pleadings where “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ. Proc., § 438(c)(1)(B)(ii). A motion for judgment on the pleadings is functionally equivalent to a demurrer and, therefore, governed by the same standards of review applicable to demurrers.  Code Civ. Proc., § 438(f); Templo v. State (2018) 24 Cal.App.5th 730, 735.  Among those standards is the maxim that the allegations of the complaint are taken as true.

As noted above, Plaintiff asserts a single cause of action for Whistleblower Retaliation under Labor Code §1102.5.  

Plaintiff alleges that she engaged in legally protected activities under Labor Code sections 1102.5 and 1102.6 by disclosing to the County of Orange and the Orange County District Attorney’s Office information which Plaintiff had reasonable cause to believe disclosed violations of California Penal Code sections 261(a)(3) (rape by use of drugs), 209(b)(1) (kidnapping for commission of sex offense), 220(a)(1) (assault with intent to commit sex offense), 261 (forcible rape), California Labor Code sections 1102.5 and 1102.6, and/or other applicable local, state, and federal statutes, rules, and regulations. Compl. ¶58.

To state a cause of action under Labor Code section 1102.5(b), a plaintiff must allege that

(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

Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.

Defendant argues Plaintiff has failed to allege facts showing she engaged in protected activity within the meaning of the statute.   The Court agrees.

Labor Code section 1102.5(b) reflects a legislative intent to provide protection to employees who “report workplace activity that may violate important public policies” by “encouraging employees to challenge employers who ignore those policies.  Green v. Ralee Engineering (1998) 19 Cal.4th 66, 77.

Section 1102.5(b) “reflects the broad public policy interest in encouraging workplace ‘whistleblowers,’ who may without fear of retaliation report concerns regarding an employer's illegal conduct” and “in encouraging employee reports of illegal activity in the workplace.” Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1123 (finding an employee was a “workplace whistleblower” where the employee alleged his employer was illegal distributing “clean” phonographs) (emphasis added); Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 (noting that Labor Code section 1102.5(b) applies to “workplace whistleblowers” and finding a “workplace whistleblower” where an employee reported his supervisor for asking the employee to engage in illegal business practices); McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468 (applying section 1102.5(b) to “workplace whistleblowers”); Gardenhire v. City of Los Angeles Housing Authority (2000) 85 Cal.App.4th 236, 242 (finding Labor Code section 1102.5(b) applies to “workplace activity”).

Thus, reporting that Robicheaux and Riley had, in her view, engaged in criminal conduct is not protected activity under the statute.

Plaintiff’s reliance on McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 471 is misplaced.  McVeigh found that section 1102.5 “protects employee reports of unlawful activities by third parties such as contractors and employees, as well as unlawful activity by the employer.”  (Emphasis added).  In other words, it found section 1102.5 extended to reports of unlawful activities by third parties related to the employer.  That is not the case here.  Plaintiff does not cite any case in which section 1102.5 has been applied to reports of unlawful activities by third parties that were in no way related to the employer. 

The Court notes that Defendant also argues that reporting done by Plaintiff as part of her job cannot be a protected activity, citing Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1382 and Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1542 (both disapproved on other grounds).  This argument has no merit.  In 2014, the California legislature amended section 1102.5 to provide that the whistleblower statute applies “Regardless of whether disclosing the information is part of the employee’s job duties.”  This allows employees to receive whistleblower protection for reporting legal violations, even when such reporting is part of the employee’s job duties.  Further, unlike Hager and Patten, Plaintiff contends that she reported statutory violations, not personnel matters.

Additionally, other than Plaintiff’s reporting of alleged third-party criminal conduct by Robicheaux and Riley that Plaintiff was investigating, Plaintiff points to two other actions that she contends constitute protected activity.

First, Plaintiff argues in her Opposition that her Complaint alleges the DA was sabotaging the criminal prosecution at issue, including “collud[ing] with the defense” and waiving the customary official information privilege in a related civil matter.  She points to the Complaint ¶¶ 29, 31-33, 35-37, 39, 40, 48.  But paragraph 58 – in which Plaintiff specifically identifies the legally protected activities on which she relies under section 1102.5 – does not allege that Plaintiff complained about or reported illegal conduct by the DA, as opposed to illegal conduct by third parties/criminal defendants Robicheaux and Riley. See e.g. Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592.

Moreover, Plaintiff argues in Opposition that the DA violated applicable local, state, and federal laws, citing Cal. Bus. & Prof. Code § 6128 (a) (attorney guilty of misdemeanor who “(a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party”); id. § 6068 (c), (d), (f) (duties of attorney: “(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just . . . ”; “(d) To employ, for the purpose of maintaining the causes confided in him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law”; “(f) To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged”); Cal. Penal Code § 1386 (“district attorney can[not] discontinue or abandon a prosecution for a public office, except as provided in Section 1385”); id. § 136.1 (crime to knowingly and maliciously dissuade witness from giving testimony).

But this is not alleged in the Complaint, and the Complaint does not allege that this was the subject of Plaintiff’s reporting.

Second, Plaintiff argues that her Complaint properly alleges that she was retaliated against for making a Government Claim.  Plaintiff asserts that she engaged in protected activity under section 1102.5(b) when she filed her Government Claim on July 2, 2020.

Defendant argues that Plaintiff’s Government Claim cannot be a protected activity, citing Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129 for the proposition “[t]he intent of the Government Claims Act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances.”

But Metcalf does not stand for the proposition that the filing of a Government Claim cannot be the basis for a retaliation cause of action under Section 1102.5 or that it is not a protected activity.   Neither do Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104 or Ross v. County of Riverside (2019) 36 Cal.App.5th 580. 

Even accepting that the filing of Plaintiff’s Government Claim was a protected activity (see Compl. ¶ 50), Plaintiff has not properly alleged a legally actionable adverse employment action that occurred after she submitted her Government Claim on 7/2/20. 

An “adverse employment action” for purposes of a whistleblower retaliation claim is an employment action that materially affects the terms and conditions of employment.  See Patten v. Grant Joint Union High School Dist. (2005) 134, Cal.App.4^th 1378. 

The Court is not persuaded that removing Plaintiff from her role as lead investigator on the Robicheaux/Riley case constitutes a legally actionable adverse employment action – i.e., that it materially affected the terms and conditions of Plaintiff’s employment.  In any event, Plaintiff alleges she had already been removed from her role as lead investigator (and placed on administrative leave, and “stripped of her peace officer status” and “escorted” out of the OCDA under a cloud of suspicion”) on 1/30/20, months before she filed her Government Claim.  Compl. ¶45.  Logically, those actions/events in January 2020 could not have been caused by the filing of Plaintiff’s Government Claim, which occurred months later. 

To the extent Plaintiff contends she was issued on July 29, 2020 some kind of a “written reprimand” in retaliation for filing her July 2, 2020 Government Claim, she still has not alleged an adverse employment action.  A “write up” is not an adverse employment action.  Mueller v. County of Los Angeles, (2009) 176 Cal.App.4^th 809, 822 (“[m]atters such as transferring employees, writing up employees, and counseling employees are personnel matters” which “do not rise to the level of whistle blower retaliation”).

Finally, the Court is not persuaded that identifying Constitutional “Brady material” related to Plaintiff and her investigation of the criminal case against Robicheaux and Riley is an adverse employment action that “materially affects the terms and conditions of [Plaintiff’s] employment.”  See Patten, 134 Cal.App.4th 1378.

Thus, the Motion is GRANTED with leave to amend.

Defendant is ordered to give notice.