Judge Robert B. Broadbelt, Case 19STCV40365 2023-03-27 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 19STCV40365, Date: 2023-03-27 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

MOVING PARTIES: Defendants Baldwin Park Unified School District, Froilan N. Mendoza, Santos Hernandez Jr., and Deanna Robles

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court rules on plaintiff Jill Poe’s evidentiary objections, filed on March 13, 2023, as follows:

The court rules on defendants Baldwin Park Unified School District, Froilan Mendoza, Santos Hernandez, Jr., and Deanna Robles’s evidentiary objections, filed on March 20, 2023, as follows:

The court grants Defendants’ request for judicial notice. (Evid. Code, § 452, subd. (d).)

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. (2001) 25 Cal.4th 826, 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.)

“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 or cross-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 or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant 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).) “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.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendants Baldwin Park Unified School District (“BPUSD”), Froilan Mendoza (“Mendoza”), Santos Hernandez, Jr. (“Hernandez”), and Deanna Robles (“Robles”) (collectively, “Defendants”) move for an order granting their motion for summary adjudication as to the first, second, fourth, fifth, and eighth causes of action alleged by plaintiff Jill Poe (“Plaintiff”) in her Second Amended Complaint.

1. First Cause of Action for Violation of Labor Code section 1102.5 (Claim for Complaints Relating to Extortion) against defendant BPUSD

“An 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).) Thus, “[u]nder this statute, an employer cannot retaliate against an employee for disclosing information that the employee has reasonable cause to believe reveals a violation of a local, state, or federal law.” (Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 371.) Section 1102.5 also prohibits an employer from retaliating “against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Lab. Code, § 1102.5, subd. (c).)

Plaintiff does not allege any specific facts in connection with this cause of action, and instead generally alleges that Plaintiff made complaints of illegality, causing BPUSD to retaliate against her. (SAC ¶¶ 28-29.) However, this cause of action is entitled “Labor Code § 1102.5 Claim for Complaints Relating to Extortion” and therefore appears to assert this cause of action is based on the allegations that Plaintiff complained to BPUSD officials about Paul Cook’s extortion. (SAC p. 12:1-4; SAC ¶¶ 15, subds. (a), (c), 16, subd. (d) [Defendants effectively told Plaintiff “that she was being retaliated against for complaining about extortion”], subd (h), 17.)

The court finds that BPUSD has met its burden of showing that the first cause of action for violation of Labor Code section 1102.5 has no merit because BPUSD has shown that it would have placed Plaintiff on administrative leave for legitimate, independent reasons, even if Plaintiff had not engaged in activities protected by section 1102.5. (Lab. Code, § 1102.6.)

“[O]nce it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.” (Lab. Code, § 1102.6; Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 [“Section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5”].)

BPUSD contends that Plaintiff was placed on administrative leave for political reasons—i.e., so that BPUSD could “save face” following the publication of the September 4, 2019 article entitled “Ex-felon, Fraudster, & Sexual Predator: The Secret Life of Baldwin Park’s School Police Chief-Jill Marie Poe” (the “Cook Article”) by Paul Cook (“Cook”) on his blog The Legal Lens. Defendant presents the following evidence.

The Cook Article was published on September 4, 2019, and stated that Plaintiff is “an ex-felon, who pled guilty to auto insurance fraud and filing a false police report.” (Undisputed Material Fact (“UMF”) No. 10; Storti Decl., Ex. 4.) Plaintiff suffered the alleged adverse employment action when she was placed on paid administrative leave on September 5, 2019. (UMF No. 13; SAC ¶ 16, subd. (h) [alleging that “BPUSD’s decision to put her on administrative leave was an adverse employment action and actually and constructively terminated her employment in a punitive manner”].)

Defendant presents evidence showing that the Cook Article generated controversy in the community, and that the decision to place Plaintiff on administrative leave was based on the negative public response following its publication. (Def. Material Fact Nos. 12, 15.) Defendant Mendoza, who is the Superintendent for BPUSD, testified that BPUSD started to receive information from the public, “and the—sort of public outcry,” from social media and phone calls expressing concern that BPUSD “had a chief of police who had committed fraud.” (Storti Decl., Ex. 6, Mendoza Dep., pp. 85:1-86:17.) The Cook Article also led to inquiries from the press. (Mendoza Decl., ¶ 8.) Mendoza states, in his declaration, that he “made [the decision to place Plaintiff on administrative leave] based on the public outcry resulting from the disclosure of [P]laintiff’s felony conviction and professional misconduct at the Los Angeles Police Department.” (Mendoza Decl., ¶ 12.) Mendoza further states that, because Plaintiff held the position as Chief of Police, she could not fulfill her responsibilities in the absence of public trust, and therefore decided to place Plaintiff on paid administrative leave to allow the District Attorney’s Office to investigate Cook’s emails, with the aim of addressing the matter further once the District Attorney’s Office acted. (Mendoza Decl., ¶ 13-14; Storti Decl., Ex. 6, Mendoza Dep., p. 87:1-11 [testifying that he felt “that it would be difficult for [Plaintiff] to be out there in a – in a position of trust with that type of information out in the public”].) It is undisputed that Mendoza made the decision to place Plaintiff on paid administrative leave. (UMF No. 14; Mendoza Decl., ¶ 11.)

The court finds that BPUSD has met its burden to demonstrate, by clear and convincing evidence, that the decision to place Plaintiff on administrative leave would have occurred for legitimate, independent reasons (i.e., to address (i) the public outcry following the publication of the Cook Article, and (ii) Mendoza’s concern that Plaintiff would not be able to perform her duties without public trust) even if Plaintiff had not reported Cook’s alleged attempts of extortion and refused to acquiesce to Cook’s demands.

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to whether the alleged adverse action would have occurred for legitimate, independent reasons, even if Plaintiff had not engaged in activities protected by section 1102.5. (Lab. Code, § 1102.6.)

First, Plaintiff contends that BPUSD failed to meet its initial burden by failing to address each of the adverse actions alleged by Plaintiff in her Second Amended Complaint. Plaintiff contends that the complaint alleges four separate adverse employment actions in support of her first and second causes of action: “(i) failure to allow [Plaintiff] to return to work; (ii) placing [Plaintiff] on an involuntary administrative leave; (iii) constructive discharge; and (iv) actual discharge.” (Opp., p. 14; Pl. Additional Material Fact No. 106.)

The court disagrees with this interpretation of the Second Amended Complaint. Fairly read, Plaintiff has alleged only one adverse employment action (her placement on administrative leave) which Plaintiff has also characterized as a failure to return to work and constructive or actual discharge. Plaintiff has made the following pertinent allegations: (1) BPUSD failed to allow Plaintiff to work “and thereby subjected her to adverse employment actions and both actually and constructively terminated” her employment with BPUSD; (2) on September 5, 2019 Plaintiff was asked if she was amenable to being placed on leave but she said she was not amenable and wanted to work; (3) Mendoza retaliated against Plaintiff and placed her on administrative leave and “[t]herefore Mendoza was a decision maker in the constructive and wrongful termination” of Plaintiff; (4) “BPUSD did not care for [Plaintiff’s] preference to return to work” and had already planned to remove her; (5) “BPUSD’s decision to put her on administrative leave was an adverse employment action and actually and constructively terminated her employment” with BPUSD; (6) Plaintiff’s inability to return to work is an actual and constructive termination of her employment; and (7) Robles was involved in the decision to place Plaintiff on leave and to terminate her employment actually and constructively. (SAC ¶¶ 14, 16, subds. (a), (h), 17, 20, 28, subd. (b), 29, 34.) Thus, although Plaintiff uses different labels to describe the adverse employment action (i.e., “constructive termination,” “actual termination,” or the prevention of Plaintiff’s return to work), the facts establish that Plaintiff has alleged only one, single adverse employment action: her placement on administrative leave.

The court therefore finds that BPUSD has not improperly challenged only one adverse employment action in an effort to seek summary adjudication on a portion of a cause of action in violation of Code of Civil Procedure section 437c. (Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action”].)

Moreover, to the extent that Plaintiff takes issue with the absence of argument relating to (1) Plaintiff’s reassignment to the Tri-Cities location, (2) her administrative leave in November 2020, and (3) Plaintiff’s actual discharge in 2021, Plaintiff did not plead those facts in the Second Amended Complaint. (Opp., p. 14:25-27.) “‘ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues” ’ and to frame ‘the outer measure of materiality in a summary judgment proceeding.” (White v. Smule, Inc. (2022) 75 Cal.App.5th 346, 354.) Thus, a defendant moving for summary judgment or adjudication need only “‘negate the theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.’” (Ibid.) Because Plaintiff did not allege that she suffered adverse employment actions based on the alleged reassignment, administrative leave in November of 2020, or actual discharge in 2021, BPUSD was not obligated to raise them in its motion.

Second, the court finds that Plaintiff has not met her burden of producing evidence sufficient to show a triable issue of material fact exists as to whether the adverse employment action would have occurred for legitimate, impendent reasons. (Lab. Code, § 1102.6.)

Plaintiff presents evidence showing that (1) Mendoza, and thus BPUSD, knew of Plaintiff’s criminal history before hiring her; (2) BPUSD’s violation of its own policy, the temporal proximity, and Plaintiff’s past performance indicates that the decision to place her on administrative leave supports an inference of pretext; and (3) Mendoza pressured Plaintiff to acquiesce to Cook’s extortion demands.

The court acknowledges that Plaintiff has presented evidence showing that BPUSD knew of Plaintiff’s history with Los Angeles Police Department and the criminal charges. (Poe Decl., ¶ 24; Pl. Appendix of Evidence, Vol. I, Ex. 2, ¶ 4, Pre-Investigative Questionnaire for BPUSD [checking “Yes” to question “Have you ever[] been arrested or convicted of any crime not previously mentioned”], ¶ 21 [stating she was terminated for inappropriate comments in April 2000].) Plaintiff argues that this knowledge shows that BPUSD’s proffered reason for placing her on administrative leave are false since BPUSD had knowledge of her history and was unconcerned with her ability to perform her job duties. While the court notes that Plaintiff has submitted some evidence of knowledge, it is not responsive to BPUSD’s “legitimate, independent reason[]” for the challenged employment action. As set forth above, BPUSD has submitted evidence showing that its reason for placing Plaintiff on the administrative leave was not due to the fact that Plaintiff had a criminal history or had been terminated from her prior position, but was instead “based on the public outcry resulting from the disclosure of” this information to the public and on Mendoza’s determination that Plaintiff “could not fulfill her responsibilities in the absence of public trust.” (Mendoza Decl., ¶¶ 11-13.)

Thus, the court finds that Plaintiff has not met her burden of showing a triable issue of material fact as to whether BPUSD would have terminated her for legitimate, independent reasons, even if Plaintiff had not made complaints of Cook’s extortion or refused to acquiesce to his demands.

The court also notes that Plaintiff submits evidence in order to show that there is an inference of pretext. (Opp., pp. 17-19, headings (c), (d), (e), (f), (g).) However, “[u]nder section 1102.6, a plaintiff does not need to show that the employer’s nonretaliatory reason was pretextual.” (Lawson, supra, 12 Cal.5th at p. 715-716; Vatalaro, supra, 79 Cal.App.5th at p. 383.) The court therefore may not evaluate Plaintiff’s evidence to determine whether BPUSD’s reason for placing Plaintiff on administrative leave is pretextual. The court instead evaluates Plaintiff’s evidence to determine whether it is sufficient to show a triable issue of material fact as to whether the alleged adverse action would have occurred for legitimate, independent reasons even if Plaintiff had not engaged in protected activities. The court finds that Plaintiff has not met this burden.

Next, Plaintiff argues that BPUSD violated its own policy on administrative leave. Plaintiff submits the BPUSD Police Department Manual, which states, pursuant to Policy 1010 (entitled “Reporting of Employee Convictions”), that “[a]ny person whose criminal conviction unduly restricts or prohibits that member from fully and properly performing his/her duties may be disciplined including, but not limited to, being placed on administrative leave….” (Pl. Appendix of Evidence, Vol. III, Ex. 10, p. 448, § 1010.4.) Plaintiff contends that, because she was willing and able to continue working as Chief of Police, administrative leave was not warranted. (Poe Decl., ¶ 22.) This evidence, however, is not responsive to the reason established by BPUSD for the adverse employment action. As set forth above, BPUSD has established that it placed Plaintiff on administrative leave to address the concerns raised by the public, and, consequently, the lack of public trust in Plaintiff. The adherence to this policy—which appears to relate to administrative leave based on the discovery of a criminal conviction and does not appear to relate to administrative leave based on distrust by the public—does not show a triable issue of material fact exists as to whether BPUSD would have placed Plaintiff on administrative leave had she not made complaints about extortion or failed to acquiesce to Cook’s unlawful demands.

Plaintiff also argues that the inconsistent reasons offered for her placement on administrative leave show a triable issue of material fact as to this issue. Specifically, Plaintiff contends that BPUSD cannot reconcile the evidence establishing that (1) she was initially told that she was being placed on administrative leave for her own well-being; (2) Mendoza testified that Plaintiff had done nothing wrong; and (3) BPUSD’s position now that she was placed on administrative leave based on public outcry.

The court finds that this evidence is insufficient to show a triable issue of material fact as to whether BPUSD would have placed Plaintiff on administrative leave even if she had not engaged in protected activity. First, although Plaintiff states that she was told by Alfonso Estrada, BPUSD’s legal counsel, that she was being placed on leave for her wellbeing, it is undisputed that it was Mendoza, and not Estrada, who made the decision to put her on administrative leave. (Poe Decl., ¶¶ 16, 23; UMF Nos. 14, 30.) Thus, Estrada’s statement, alone, is insufficient to show a triable issue of material fact exists as to whether BPUSD would have placed Plaintiff on administrative leave irrespective of her engaging in protected activity. Second, the court notes that Mendoza (1) stated in deposition that Plaintiff “did nothing wrong to be[] placed on administrative leave” and (2) states in his declaration that he made the decision to place Plaintiff on administrative leave based on public outcry. (Pl. Appendix of Evidence, Vol. IV, Ex. 33, Mendoza Dep., p. 100:2-10; Mendoza Decl., ¶¶ 12-13.) The court does not view these statements as inconsistent. BPUSD does not appear to argue that Plaintiff “did [something] wrong” to be placed on administrative leave. Instead, BPUSD has presented evidence showing that it is merely the public response to the Cook Article which led to its decision. The court therefore finds that these statements do not show that a triable issue of material fact exists as to whether BPUSD would have taken the alleged adverse action had she not engaged in protected activity.

Plaintiff further contends that the timing of events is instructive, as BPUSD placed Plaintiff on administrative leave “within weeks of” her engaging in protected activity. The court disagrees. The evidence shows that (1) Plaintiff was forwarded an email from Cook regarding the traffic ticket on August 1, 2019; (2) Plaintiff received an email from Cook on August 5, 2019; (3) upon receipt of the August 5, 2019 email, Plaintiff informed Mendoza and Lydia Cano of the correspondence; (3) in August 2019, Plaintiff was asked by Mendoza if the citation “could just be dismissed,” to which Plaintiff said no; (4) on August 27, 2019, Plaintiff received another email from Cook; (5) upon receiving the August 27, 2019 email, Plaintiff told Mendoza and Cano about the correspondence; (6) on September 4, 2019, the Cook Article was published; (5) on September 5, 2019, Plaintiff was placed on an administrative leave. (Poe Decl., ¶¶ 14-16, 18-19, 21, 23.) Although the decision to place Plaintiff on administrative leave is close in time to the dates on which Plaintiff informed BPUSD of Cook’s emails, it is also temporally proximate to the date on which the Cook Article was published. Thus, the timing of the adverse employment action—close in time to both Plaintiff’s protected activity and the public outcry following the publication of the Cook Article—is insufficient to show that BPUSD would not have placed Plaintiff on administrative leave had she not engaged in the protected activities.

Finally, Plaintiff has stated, in her declaration, that “Mendoza twice asked [her] in a suggestive and leading manner whether the citation issued to Cook could just be dismissed, even after [Plaintiff] said ‘no’ the first time.” (Poe Decl., ¶ 18.) Plaintiff further states that “[b]ased on the tone of his voice and visible reaction, Mendoza appeared upset and frustrated by [her] refusal to dismiss Cook’s ticket.” (Ibid.) Because Mendoza is the person who made the decision to place her on administrative leave, Plaintiff contends that this evidence shows that the decision was made with retaliatory intent since Plaintiff refused to acquiesce to Cook’s extortion demands.

The court notes that this evidence is sufficient to establish a prima facie case of retaliation under section 1102.6. This section “requires whistleblower plaintiffs to show that retaliation was a ‘contributing factor’ in their termination, demotion, or other adverse action. This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Lawson, supra, 12 Cal.5th at pp. 713-714; Id. at p. 716 [“Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action”].) However, after the employee meets this burden, under Lawson, the employer has the burden to demonstrate that it would have taken the action in question for legitimate, independent reasons even if the employee had not engaged in protected activity by clear and convincing evidence. (Id. at p. 718.) Because BPUSD has met this burden in its moving papers, Plaintiff must present evidence to show a triable issue of material fact as to that issue. The court finds that the evidence that Mendoza pressured Plaintiff to acquiesce to Cook’s demands by dismissing the ticket does not meet this burden.

Plaintiff does not meaningfully dispute that the Cook Article “generated significant controversy within the Baldwin Park community, including numerous posts on social media and text messages to members of the Board of Education.” (Pl. Response to Material Fact No. 28.) Moreover, BPUSD has submitted evidence of Plaintiff’s deposition testimony, in which she testified that she “became aware that some parents were raising the concerns” and knew that parents were emailing Board of Education members and BPUSD’s Superintendent demanding that Plaintiff be removed from her position upon reading the Cook Article. (Storti Decl., Ex. 2, Poe Dep., pp. 201:17-202:8.) BPUSD has presented evidence showing that the decision to place her on administrative leave was in response to the negative response and pressures put on the district by the public. Plaintiff has not presented evidence sufficient to show a triable issue of material fact as to whether (1) the public did have this negative response to the Cook Article and subsequently put significant pressure on BPUSD, or (2) this response would not have led Mendoza—as BPUSD’s Superintendent—to make the same decision to place Plaintiff on administrative leave.

Thus, although Plaintiff has presented evidence that is sufficient to meet her initial burden “that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against” her based on the evidence that Mendoza had twice pressured her to acquiesce to Cook’s demands, Plaintiff has not met her burden to present evidence to show a triable issue of material fact exists as to whether “the alleged action would have occurred for legitimate, independent reasons even if [Plaintiff] had not engaged in activities protected by Section 1102.5.” (Lab. Code, § 1102.6.)

The court therefore grants BPUSD’s motion for summary adjudication as to the first cause of action for violation of Labor Code section 1102.5 (Claim for Complaints Relating to Extortion).

2. Second Cause of Action for Retaliation in Violation of Labor Code section 1102.5 (Testifying as Witness in Judicial Proceeding) against defendant BPUSD

“An 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, . . . 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).) In connection with this cause of action, Plaintiff alleges that (1) she testified in an official proceeding in a criminal case against defendant Robles, and (2) defendant Robles, in her position as a board member for BPUSD, retaliated against Plaintiff by subjecting her to adverse employment actions and causing her employment to be actually and constructively terminated. (SAC ¶¶ 33, 2.)

The court finds that BPUSD has met its burden of showing that the second cause of action for retaliation in violation of Labor Code section 1102.5 (retaliation in connection with being a witness in any judicial proceeding) has no merit because BPUSD has shown that (1) Robles did not make the decision to place Plaintiff on administrative leave, and (2) Plaintiff would still have been placed on leave for independent reasons even if she had not engaged in activities protected by section 1102.5.

First, it is undisputed that the decision to place Plaintiff on administrative leave was made by defendant Mendoza, and not defendant Robles. (UMF No. 30.) Second, as set forth above, BPUSD has submitted evidence showing that it would have placed Plaintiff on administrative leave even if she had not engaged in protected activities in order to address concerns raised by the public after Cook published the Cook Article on his blog. (Def. Material Fact No. 31; Mendoza Decl., ¶¶ 12-14.)

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to whether “the alleged action would have occurred for legitimate, independent reasons even if [Plaintiff] had not engaged in activities protected by Section 1102.5” for the same reasons set forth in connection with the court’s discussion on the first cause of action, above. (Lab. Code, § 1102.6.)

The court therefore grants BPUSD’s motion for summary adjudication as to the second cause of action for retaliation in violation of Labor Code section 1102.5 (retaliation in connection with being a witness in any judicial proceeding).

“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.) “‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. [Citation.]’” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [internal citation omitted].) Plaintiff alleges that Defendants defamed Plaintiff by issuing a statement in response to the Cook Article, falsely informing individuals that Plaintiff was suspended and place on leave because of information disclosed in the Cook Article, and making statements about Plaintiff’s violation of criminal laws in her capacity of Chief of Police. (SAC ¶¶ 19, 45.)

The court finds that Defendants have met their burden of showing that the fourth cause of action for defamation has no merit because Defendants have shown that (1) as to defendants Hernandez and Robles, an element of the cause of action (publication of the allegedly defamatory statement) cannot be established, and (2) as to Mendoza and BPUSD, the absolute defense of privilege of Civil Code section 47, subdivision 1 applies.

First, defendants Hernandez and Robles present evidence showing that they did not have any role in publishing this statement. (UMF No. 44; Robles Decl., ¶ 7 [“I had no role in the drafting or dissemination of the statement [BPUSD] released in response to press inquiries after Paul Cook’s September 4, 2019 article”]; Hernandez Decl., ¶ 3 [“I had no role in the drafting or dissemination of the statement [BPUSD] released in response to press inquiries after Paul Cook’s September 4, 2019 article”].) “To support a claim for defamation, [the plaintiff] need only establish that the individual defendants took a ‘responsible part’ in the publication of defamatory matter.” (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 275-276; Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245 [“each person who takes a responsible part in a publication of defamatory matter may be held liable for the publication”].) The court therefore finds that defendants Hernandez and Robles have met their burden of showing that Plaintiff cannot establish the element of publication as to those defendants, since they had no part in drafting or disseminating the allegedly defamatory statement.

Second, defendants BPUSD and Mendoza have presented evidence and argument showing that the allegedly defamatory statement is privileged.

BPUSD, at the direction of Mendoza, released the following statement: “BPUSD places the highest priority on the safety and security of our students . . . BPUSD school police serve an important role in securing our schools and supporting the safety of our students. A question has been raised about the past work history of a member of our school police department, the district is looking into it.” (UMF Nos. 42 [undisputed that statement was made], 43; Mendoza Decl., ¶¶ 9-10.) BPUSD and Mendoza contend that this statement was released pursuant to Mendoza’s official duties.

“A privileged publication or broadcast is one made: [¶] (a) In the proper discharge of an official duty.” (Civ. Code, § 47, subd. (a).) The executive officer privilege of Civil Code section 47, subdivision (a) “broadly ‘encompass[es] all discretionary acts essential to the proper exercise of an executive function decision.’” (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1442.)

The court finds that the allegedly defamatory statement made by BPUSD, at the direction of Mendoza, is privileged.

Mendoza is the Superintendent for BPUSD and is therefore covered by the executive officer privilege. (Mendoza decl., ¶ 2 [“I am currently the Superintendent for defendant [BPUSD]”]; Morrow, supra, 149 Cal.App.4th at p. 1443 [finding that superintendent’s statements were protected by privilege of Civil Code section 47,subdivision (a)].) As Superintendent, Mendoza issued the alleged statement on behalf of BPUSD in response to the concerns raised by the public following publication of the Cook Article and in response to inquiries from the press. (Mendoza Decl., ¶¶ 7-9.) The court finds that Defendants have presented evidence and argument sufficient to show that the issuance of BPUSD’s response to these concerns and inquiries was made in the discharge of Mendoza’s official duty and is therefore privileged. (Morrow, supra, 149 Cal.4th at p. 1443 [“as superintendent [defendant] was publicly explaining the district’s response to a matter of widespread concern, which was one of his official duties”].)

Thus, the court finds that Mendoza has met his burden of showing that the statement was issued “[i]n the proper discharge of [his] official duty” as Superintendent, and is therefore protected by the privilege of Civil Code section 47, subdivision (a).

The court further finds that BPUSD has met its burden of showing that it cannot be held liable for the privileged statement made by its employee. “[A] public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” (Gov. Code, § 815.2, subd. (b).) Because Mendoza has shown that he is immune from liability since the subject statements are privileged, BPUSD has shown that it cannot be held liable for an injury to Plaintiff resulting from Mendoza’s act in issuing the allegedly defamatory statements. (Ibid.)

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to (1) defendant Hernandez and Robles’s publication of the statement, or (2) whether the publication was privileged as to Mendoza and BPUSD.

First, Plaintiff does not dispute that Hernandez and Robles “played no part in the drafting or dissemination of the statement.” (UMF No. 44.) Further, Plaintiff does not address this cause of action as to Hernandez and Robles in her opposition papers. The court therefore finds that Plaintiff has not met her burden to show a triable issue of fact exists as to the element of their publication of the defamatory statement.

Second, Plaintiff contends that the privilege does not apply to statements made by Mendoza, relying on Frisk v. Merrihew (1974) 42 Cal.App.3d 319 and Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406.

Although Frisk appears to limit the applicability of the privilege “to high ranking federal and state officials such as the President of the United States, governors of the states and territories, the members of the President’s cabinet, heads of federal agencies, and comparable state officers[,]” the court agrees with the reasoning of Morrow. (Frisk, supra, 42 Cal.App.3d at p. 323.) The Morrow Court explained that—while some decisions such as Frisk declined to apply the privilege to officials below cabinet rank—“‘the weight of authority follows federal precedents in extending the privilege to lower ranking officials.[,]” including the United States Supreme Court’s decision to extend the privilege “to the ‘Acting Director of the Office of Rent Stabilization—an office well below cabinet rank.’” (Morrow, supra, 149 Cal.App.4th at pp. 898-899.) Thus, the court finds that Frisk does not compel the finding that the statement issued by BPUSD on the direction of Mendoza is not privileged based on Mendoza’s position as Superintendent.

Further, Sanborn merely recognized that “courts of this state have thus far extended the protections of [Section 47] only to highranking state and federal officials….” (Sanborn, supra, 18 Cal.3d at p. 412 [emphasis added].) However, Sanborn also concluded that the privilege did not apply to the facts presented there because the defendant “was not exercising policy-making functions when he defamed plaintiff, and thus he [was] not protected by the absolute privilege contained in Civil Code section 47, subdivision 1.” (Id. at p. 413; Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 616 [explaining that Sanborn determined the privilege not to apply because they were not made in furtherance of any policy-making function].) Sanborn does not require the court to refuse to extend the privilege to Mendoza and BPUSD.

The court therefore finds that Plaintiff has failed to produce evidence or argument showing a triable issue of material fact as to whether (1) Mendoza is Superintendent of BPUSD, and (2) as Superintendent, Mendoza (and by extension, BPUSD) published the allegedly defamatory statement in the proper discharge of this official duty. (Civ. Code, § 47, subd. (1); Morrow, supra, 149 Cal.App.4th at p. 1442-1443.)

The court therefore grants Defendants’ motion for summary adjudication as to the fourth cause of action for defamation.

“For a valid defamation claim, the general rule is that ‘the publication must be done by the defendant.’ [Citation.] There is an exception ‘[w]hen it [is] foreseeable that [the] defendant’s act would result in [a plaintiff’s] publication to a third person.’ [Citation.] For the exception to apply, the defamed party must operate under a strong compulsion to republish the defamatory statement, and the circumstances creating the compulsion must be known to the originator of the statement at the time he or she makes it to the defamed individual.” (Tilkey v. Allstate Insurance Company (2020) 56 Cal.App.5th 521, 542.)

The court finds that BPUSD has met its burden of showing that the fifth cause of action for compelled self-defamation has no merit because BPUSD has shown that the alleged defamatory statements are privileged. As set forth above, BPUSD, as a public entity, cannot be liable for the acts of its employee if the employee is immune from liability. (Gov. Code, § 815, subd. (b).) Because Mendoza has shown that the subject statements were privileged pursuant to Civil Code section 47, subdivision (a), BPUSD has shown that it cannot be liable for those statements.

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to the absolute privilege of Section 47, subdivision (1), for the same reasons set forth in connection with the court’s discussion on the fourth cause of action for defamation, above.

The court therefore grants BPUSD’s motion for summary adjudication as to the fifth cause of action for compelled self-defamation.

5. Eighth Cause of Action for Hostile Work Environment Harassment on Basis of Sexual Orientation against Mendoza[1]

It is an unlawful employment practice “[f]or an employer . . . or any other person, because of . . . sexual orientation . . . to harass an employee . . . .” (Gov. Code, § 12940, subd. (j)(1).) To establish a prima facie case of a hostile work environment, a plaintiff must show that (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on the protected characteristic; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, of offensive work environment; and (5) the defendant is liable for the harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b).)

The court finds that Mendoza has met his burden of showing that the eighth cause of action for hostile work environment harassment on the basis of sexual orientation has no merit because Mendoza has shown that an element of the cause of action (that Mendoza subjected Plaintiff to harassment based on her sexual orientation) cannot be established. Mendoza introduces Plaintiff’s deposition testimony, in which she testified that, from the time she was hired until the present day, she had never heard Mendoza make a negative or derogatory comment about any person’s sexual orientation. (Storti Decl., Ex. 2, Poe Dep., p. 85:1-10.) The court finds that this evidence is sufficient to show that Plaintiff cannot establish the element of harassing conduct on the part of Mendoza based on sexual orientation.

The court finds that Plaintiff has not met her burden to show that a triable issue of material fact exists as to the element of Mendoza’s harassment of Plaintiff based on her sexual orientation.

Plaintiff contends that Mendoza failed to address Plaintiff’s complaints about sexual-orientation-based harassment in violation of BPUSD’s policy and BPUSD’s denial of evidence of those complaints, as well as Mendoza’s disparate treatment of Plaintiff in communications with POST (i.e., by failing to provide POST with documents as to the eligibility of heterosexual males but declining to do so in regard to Plaintiff). (Pl. Response to Material Fact No. 58; Opp., pp. 19:23-20:2.)

First, Plaintiff presents evidence showing that she raised complaints to Mendoza about harassment based on her sexual orientation, and in particular, about defendant Hernandez’s harassment. (Poe Decl., ¶ 12.) However, Plaintiff fails to present (1) evidence showing that Mendoza also harassed Plaintiff based on her sexual orientation or encouraged others to harass Plaintiff, or (2) argument establishing that Mendoza’s failure to address her complaints constitutes harassing conduct. While an employer can be liable for the failure to prevent harassment, Plaintiff has not cited any authority showing that Mendoza, as the Superintendent, can be liable for the failure to prevent harassment. (Gov. Code, § 12940, subds. (j)(1) [“An entity shall take all reasonable steps to prevent harassment from occurring”] [emphasis added], (k) [it is an unlawful employment practice “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring”].) Further, Plaintiff does not meaningfully dispute her prior testimony in which she stated that she had never heard Mendoza make derogatory comments about another person’s sexual orientation.

Second, to the extent she takes issue with BPUSD’s failure to address those complaints, the court notes that BPUSD has not moved for summary adjudication as to this cause of action. (Mot., p. 6, fn. 2.)

Third, Plaintiff takes issue with “Mendoza’s disparate treatment” of Plaintiff as to communications with the Commission on Peace Officers Standards and Training. This evidence and argument concerns conduct that occurred in late 2020. (Opp., pp. 12:9-13:3; Pl. Material Fact Nos. 95-103.) However, Plaintiff’s operative Second Amended Complaint—filed on February 26, 2020—does not allege these facts as a basis for her eighth cause of action for harassment. As set forth above, on summary judgment or adjudication, a defendant need only “‘negate the theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.’” (White, supra, 75 Cal.App.5th at p. 354.) Thus, the evidence as to Mendoza’s alleged disparate treatment of Plaintiff cannot be relied on in order to create a triable issue of material fact as to the element of harassment.[2]

The court therefore grants Mendoza’s motion for summary adjudication as to the eighth cause of action for hostile work environment harassment on the basis of sexual orientation.

The court grants defendants Baldwin Park Unified School District, Froilan Mendoza, Santos Hernandez, Jr., and Deanna Robles’s motion for summary adjudication.

The court grants defendant Baldwin Park Unified School District’s motion for summary adjudication as to plaintiff Jill Poe’s first, second, fourth, and fifth causes of action.

The court grants defendant Froilan Mendoza’s motion for summary adjudication as to plaintiff Jill Poe’s fourth and eighth causes of action.

The court grants defendants Santos Hernandez, Jr., and Deanna Robles’s motion for summary adjudication as to plaintiff Jill Poe’s fourth cause of action.

The court orders defendants Baldwin Park Unified School District, Froilan Mendoza, Santos Hernandez, Jr., and Deanna Robles to give notice of this ruling.

[1] Plaintiff alleges the eighth cause of action “Against All Defendants….” (SAC p. 20:9.) However, Defendants’ motion is directed to the eighth cause of action as alleged against Mendoza only. (Def. Mot., p. 6, fn. 2.)

[2] The court further notes that Plaintiff appears to be making arguments that would support a claim for discrimination, rather than harassment, based on discriminatory treatment of Plaintiff because of her sexual orientation.

jill m. poe ; Plaintiff, vs. baldwin park unified school district , et al.; Defendants.	Case No.:	19STCV40365

	Hearing Date:	March 27, 2023

	Time:	10:00 a.m.

	[Tentative] Order RE: defendants’ motion for summary adjudication