Judge: Maurice A. Leiter, Case: 22STCV17208, Date: 2023-09-06 Tentative Ruling

Case Number: 22STCV17208    Hearing Date: September 6, 2023    Dept: 54

Hearing Date: September 6, 2023

Department 54, Judge Maurice Leiter

Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication

Moving Party: Defendant City of Los Angeles

Responding Party: Plaintiff Mario Cardona

T/R:     DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION OF THE CAUSES OF ACTION FOR RETALIATION IN VIOLATION OF THE LABOR CODE AND FEHA IS DENIED.

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION OF THE CAUSE OF ACTION FOR RACE DISCRIMINATION IN VIOLATION OF FEHA IS GRANTED.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers and opposition.

BACKGROUND

On November 22, 2022, Plaintiff Mario Cardona filed the operative first amendment complaint against Defendant City of Los Angeles, asserting causes of action for (1) whistleblower retaliation; (2) retaliation in violation of FEHA; and (3) discrimination in violation of FEHA. Plaintiff is a police officer with LAPD. Plaintiff alleges Defendant, via his supervisor Alcenda Neal, retaliated against him for refusing to rescind a parking violation by transferring him out of a specialty unit and initiating various complaints against him, impeding his ability to be promoted within the department.

ANALYSIS

“The purpose of the law of summary judgment 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. (2001) 25 Cal.4th 826, 843.) Trial judges are required “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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(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 that cause of action or a defense thereto.” (Id.)  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.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

A. Retaliation in Violation of Labor Code § 1102.5 and FEHA

Defendant asserts Plaintiff’s claims for retaliation fail because Defendant did not subject Plaintiff to an adverse employment action. To determine whether there has been an adverse employment action, courts use the “materiality” test, which “looks to ‘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,’ and the test ‘must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace . . . .’”  (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1386-90.)

Defendant represents that Plaintiff was removed from the Gang Enforcement Detail (“GED”) for a use of force incident and for being “disrespectful to members of the community.” Defendant argues that this removal was not “material” because it was caused by Plaintiff’s conduct. (UMF 104-108, 111-116.)

In opposition, Plaintiff presents evidence showing he refused to rescind a parking ticket for Neal, believing it to be a violation of law, and complained that Neal engaged in sexual harassment and made decisions based on race. (Pl. UMF 24-30.) Plaintiff subsequently was transferred from his assignment. Plaintiff also asserts that Defendant retaliated against him by making false complaints against him and denying him the opportunity to compete for an open GED position. This is sufficient to create a triable issue of fact as to whistleblower retaliation.

Defendant’s motion for summary judgment is DENIED. Defendant’s motion for summary adjudication of the causes of action for whistleblower retaliation is DENIED.

B. Discrimination in Violation of FEHA

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) 

Defendant asserts Plaintiff’s claim for race discrimination fails because Plaintiff cannot establish Neal made any decisions based on Plaintiff’s race. (UMF 98-100.) Defendant again asserts that Plaintiff was removed from GED due to his own conduct. Plaintiff does not address this issue in opposition. Plaintiff has failed to establish a triable issue of fact as to discrimination.

Defendant’s motion for summary adjudication of the cause of action for race discrimination is GRANTED.