Judge Robert B. Broadbelt, Case Number: BC604336, Date: 2025-05-01 Tentative Ruling

RESPONDING PARTIES: Plaintiffs Johneen Jones, Kristen Kenney, Debra Kane, and Robert Plourde

The court considered the moving, opposition, and reply papers filed in connection with this motion.[1]

The court grants defendant City of Los Angeles’s request for judicial notice. (Evid. Code, § 452, subds. (c), (d); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 368, n. 1 [“The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim”].)

The court rules on defendant City of Los Angeles’s evidentiary objections, filed on April 18, 2025, as follows:

The court does not rule on Objections Nos. 24-37 because they are directed to evidence that is not material to the court’s disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)

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).)

Defendant City of Los Angeles (“Defendant”) moves the court for an order granting summary adjudication in its favor on the following causes of action: (1) the third cause of action for retaliation in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (“FEHA”) as alleged by plaintiff Debra Kane (“Kane”); (2) the fourth cause of action for retaliation in violation of Labor Code section 1102.5 as alleged by plaintiff Kane; (3) the first cause of action for disability discrimination as alleged by plaintiff Robert Plourde (“Plourde”); (4) the third cause of action for retaliation in violation of FEHA as alleged by plaintiff Plourde; and (5) the fourth cause of action for retaliation in violation of Labor Code section 1102.5 as alleged by plaintiff Plourde.

Because the parties have first addressed the causes of action alleged by plaintiff Kane, the court discusses her causes of action first.

1. Plaintiff Kane’s Third Cause of Action for Retaliation in Violation of FEHA

“‘[T]o establish a prima facie case of retaliation under the FEHA, a 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 existed between the protected activity and the employer’s action.’” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879 [internal citation omitted].)

First, the court finds that Defendant has not met its burden of showing that Kane’s third cause of action for retaliation in violation of FEHA has no merit because Defendant has not shown that the element of causation cannot be established.

In support of this cause of action, Kane has alleged that (1) she was transferred to the sex crimes table in or around November 2014; (2) on or around November 5, 2014, Kane reported to Captain Dominic Choi, Captain Ernest Eskridge, and Lt. Espinosa that she believed that her transfer was discriminatory based on her race and gender, and wrote a letter reporting that the transfer of plaintiffs Kenney and Jones was retaliatory and discriminatory; (3) Kane was transferred to Devonshire division, where she is the Detective III supervisor of the less prestigious theft table; and (4) on or around May 18, 2015, Kane met with Captain Green and reported that she believed that she was being retaliated against based on her reporting discrimination and retaliation in November 2014. (Compl., ¶¶ 45-47, 56, 59.)

As to Kane’s transfer to the sex crimes table in or around November 2014, the court agrees that such transfer cannot serve as the basis of her retaliation claim because (1) she has alleged the protected activity to be her conduct (i) in reporting, on or around November 5, 2014, that she believed that her transfer to the sex crimes table was discriminatory based on her race and gender, and (ii) in writing a letter reporting that the transfer of plaintiffs Kenney and Jones was retaliatory and discriminatory based upon their race and gender, and (2) Defendant’s conduct in transferring Kane to the sex crimes table occurred on or around November 3, 2014, which is before that the alleged protected activity took place. (Compl., ¶¶ 46-47; Kourounian v. California Dept. of Tax & Fee Administration (2023) 91 Cal.App.5th 1100, 1113 [“As a matter of both logic and law, acts of retaliation must occur after the protected activity”], 1114 [“‘Because retaliation under FEHA requires the plaintiff to show that the employer was motivated to retaliate by the plaintiff’s protected activity, actions the employer took before the plaintiff engaged in the protected activity necessarily are irrelevant’”] [internal citation omitted].)

The court, however, finds that Defendant did not meet its burden to show that there was no causal link between Kane’s protected activity and her transfer to the Devonshire division (which occurred after Kane made her report) on the ground that the transfer occurred six months after Kane made her report. (Compl., ¶¶ 47 [alleging that Kane made the subject report in November 2014], 59; Ferrouillet Decl., Ex. 1-B, Kane Dep., pp. 136:5-140:18 [testifying that in April 2015, she was told that she was being administratively transferred from Foothill and was subsequently assigned to Devonshire].)

The court acknowledges, as Defendant argues, that “[a] long period between an employer’s adverse employment action and the employee’s earlier protected activity may lead to the inference that the two events are not causally connected.” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421.) But Defendant did not cite authority establishing that a six-month period of time between protected activity and an adverse employment action is a “long period” of time that creates an inference that the two events are not causally connected.[2] (Ibid.; Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353 [“the temporal proximity between an employee’s [protected conduct] and a subsequent termination may satisfy the causation requirement at the first step of the burden-shifting process”] [emphasis in original].)

Second, the court finds that Defendant has met its burden of showing that Kane’s third cause of action for retaliation in violation of FEHA has no merit because Defendant has shown that an element of the cause of action (that Kane was subjected to an adverse employment action) cannot be established since Defendant has submitted evidence showing that Kane’s rank, salary, benefits, and retirement were not affected by her transfer from the Foothill Division to Devonshire station in April 2015. (Meeks, supra, 24 Cal.App.5th at p. 879 [an adverse employment action requires a substantial adverse change in the terms and conditions of a plaintiff’s employment]; Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357-358; Ferrouillet Decl., Ex. 1-B, Kane Dep., pp. 155:14-20 [testifying that she did not lose salary or benefits upon being transferred to Devonshire].)

Third, the court finds that plaintiff Kane has met her burden to show that a triable issue of material fact exists as to the element of an adverse employment action because Kane has submitted evidence showing that her transfer to Devonshire substantially and adversely changed her employment since (1) she became a supervisor of the Theft table, which is a less prestigious position, (2) the view in the Department is that those who receive an administrative transfer (such as Kane’s transfer) has “done something wrong[,]” (3) an administrative transfer affects an officer’s ability to promote in the future, and (4) her new assignment had fewer overtime opportunities, such that Kane has shown that a triable issue of material fact exists as to whether the transfer affected her job performance and opportunity for advancement. (Kane Decl., ¶¶ 18-20; Meeks, supra, 24 Cal.App.5th at p. 879 [adverse employment acts include “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for career advancement”] [internal quotation marks and citation omitted]; Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389, disapproved of on other grounds in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718, n. 2 [finding triable issue of fact as to adverse employment action despite principal’s lateral transfer, which was, based on the circumstances, essentially a demotion].)

The court therefore denies Defendant’s motion for summary adjudication as to Kane’s third cause of action for retaliation in violation of FEHA.

2. Plaintiff Kane’s Fourth Cause of Action for Retaliation in Violation of Labor Code section 1102.5

“An employer . . . shall not retaliate against an employee for disclosing 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).) Labor Code section 1102.6 provides the governing framework for evaluating claims brought under Labor Code section 1102.5. (Lab. Code, § 1102.6; Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 379.)

First, the court finds that Defendant has not met its burden of showing that Kane’s fourth cause of action retaliation in violation of Labor Code section 1102.5 has no merit because Defendant has not shown that the element of causation (i.e., that activity proscribed by section 1102.5 was a contributing factor in the alleged prohibited actions against Kane) cannot be established since, as set forth above, Defendant has not shown that the six-month period of time between Kane’s engaging in protected activity and her transfer to Devonshire is too remote to support Kane’s prima facie claim for retaliation. (Wysinger, supra, 157 Cal.App.4th at p. 421; Arteaga, supra, 163 Cal.App.4th at p. 353.)

Second, the court finds that Defendant has met its burden of showing that Kane’s fourth cause of action retaliation in violation of Labor Code section 1102.5 has no merit because Defendant has shown that an element of the cause of action (that Defendant subjected Kane to a prohibited adverse employment action) cannot be established since Defendant has submitted evidence showing that Kane’s rank, salary, benefits, and retirement were not affected by her transfer from the Foothill Division to Devonshire station in April 2015. (Meeks, supra, 24 Cal.App.5th at p. 879; Ferrouillet Decl., Ex. 1-B, Kane Dep., pp. 155:14-20.)

The court therefore denies Defendant’s motion for summary adjudication as to Kane’s fourth cause of action retaliation in violation of Labor Code section 1102.5.

3. Plaintiff Plourde’s First Cause of Action for Discrimination in Violation of FEHA

“The specific elements of a prima facie case [for discrimination under FEHA] ‘may vary depending on the particular facts,’ but generally include evidence that the plaintiff: (1) was a member of a protected class; (2) was qualified for the position he or she sought or was performing competently in the position he or she held; (3) suffered an adverse employment action; and (4) was subject to some other circumstance suggesting discriminatory motive.” (Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 350 [internal citation omitted].)

The court finds that Defendant has not met its burden of showing that Plourde’s first cause of action for discrimination has no merit because Defendant has not shown that the entire cause of action, as pleaded, has no merit, and has instead challenged only a portion of this cause of action by arguing that his claims for disability discrimination have no merit. (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 . . . .”] [emphasis added].)

The court acknowledges that Plourde has alleged that he was subjected to discrimination on the basis of his disability and medical condition beginning in or around September 2012. (Compl., ¶¶ 62-65.) However, Plourde has also alleged that Defendant discriminated against him on the bases of his race, ethnicity, color, and association with a protected class. (Compl., ¶¶ 34, 82.) In its motion, Defendant argues only that Plourde’s claim for “disability discrimination” is barred by the statute of limitations. (Notice of Mot., p. 2:12-14; Mot., p. 9:7 and pp. 9:9-10:6 [arguing that Plourde’s claims of disability discrimination are barred by the statute of limitations].) Defendant did not (1) address Plourde’s claims for discrimination on the bases of race, ethnicity, color, and association with a protected class, (2) argue that such claims have no merit, or (3) submit evidence, such as discovery responses or Plourde’s testimony, to show that he does not intend to pursue his claims for discrimination on the bases of race, ethnicity, color, and association with a protected class.

Thus, Defendant did not meet its burden to address every theory on which Plourde’s first cause of action for discrimination is based. (Code Civ. Proc., § 437c, subd. (f)(1).)

The court therefore denies Defendant’s motion for summary adjudication as to Plourde’s first cause of action for discrimination in violation of FEHA.

4. Plaintiff Plourde’s Third Cause of Action for Retaliation in Violation of FEHA

“‘[T]o establish a prima facie case of retaliation under the FEHA, a 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 existed between the protected activity and the employer’s action.’” (Meeks, supra, 24 Cal.App.5th at pp. 878-879 [internal citation omitted].)

The court finds that Defendant has not met its burden of showing that Plourde’s third cause of action for retaliation in violation of FEHA has no merit because Defendant has not shown that the entire cause of action, as pleaded, has no merit, and has instead challenged only a portion of this cause of action by arguing that his claims for retaliation based on his disability have no merit. (Code Civ. Proc., § 437c, subd. (f)(1).)

Plourde has alleged, in addition to the claims regarding his disability, that his transfer in April 2015 was retaliatory. (Compl., ¶ 58 [“Plaintiff Plourde reported that his and the other transfers were discrimination and retaliation to Deputy Chief Green on or around April 20, 2015, and again reported it to Deputy Chief Green on or around July 7, 2015”].) Plourde has also alleged that (1) in late 2015, the Los Angeles Police Department implemented a plan to consolidate all of Valley Bureau homicide divisions into one central office; (2) Plourde was informed that he would be transferred into central and provided with schedules; (3) Plourde subsequently filed a Department of Fair Employment and Housing complaint and government claims in or around August and September 2015; and (4) on or around December 1, 2015, plaintiff Jones was informed that it had been decided that Jones and Plourde “would not be transferred into central because of this pending lawsuit[,]” which Plourde alleges is “further retaliation for engaging in a protected activity, and discrimination based upon race, gender, and association with a protected class.” (Compl., ¶ 61 [emphasis added].)

Plourde has therefore based his third cause of action for retaliation in part on the conduct described above. However, Defendant did not address those theories of relief in its moving papers. (Mot., pp. 9:7-10:6 [arguing that Plourde’s disability discrimination and retaliation claims are barred by the statute of limitations based on the alleged conduct that occurred in 2011, 2012, and 2013].) Thus, even if Defendant had met its burden to show that the conduct that occurred in 2011-2013 cannot be the basis of this cause of action, Defendant has not addressed this allegation and therefore has not shown that the retaliation cause of action, in its entirety, has no merit on the ground that it is barred by the statute of limitations.

The court therefore denies Defendant’s motion for summary adjudication as to Plourde’s third cause of action for retaliation in violation of FEHA.

5. Plaintiff Plourde’s Fourth Cause of Action for Retaliation in Violation of Labor Code section 1102.5

The court finds that Defendant has not met its burden of showing that Plourde’s fourth cause of action for retaliation in violation of Labor Code section 1102.5 has no merit because Defendant has not shown that the entire cause of action, as pleaded, has no merit, and has instead challenged only a portion of this cause of action. (Code Civ. Proc., § 437c, subd. (f)(1).)

The court recognizes that Defendant addressed the following allegations on which Plourde bases this cause of action: (1) Plourde reported disability discrimination and harassment in or around August 2013, and was thereafter transferred to the homicide table, and (2) on December 1, 2015, plaintiff Jones learned that it had been decided that Plourde “would not be transferred into central because of this pending lawsuit.” (Compl., ¶¶ 66-67, 61.) Defendant did not, however, address the claim that Plourde made a report of misconduct in May 2014.

Specifically, Plourde has alleged that (1) certain of his colleagues interfered with his investigation into the Denise Moe murder by hiding evidence and refusing to provide to Plourde certain information and evidence, which was “a violation of state and federal law, [and] the state and federal constitutions,” and (2) in May 2014, Plourde “reported this misconduct to Lt. Jay Roberts, Lt. Patricia Blake, and then Captain, now Commander, Sean Malinowski.” (Compl., ¶ 35.) Plourde further alleged, in connection with the fourth cause of action, that he (and the other plaintiffs) made complaints to the Los Angeles Police Department that he had reasonable cause to believe disclosed violations of law, and that Defendant retaliated against him (and the other plaintiffs) for disclosing such information, including by forcing transfers. (Compl., ¶¶ 107-109.) Plourde has also alleged that his April 2015 transfer was retaliatory.[3] (Compl., ¶ 58.) Thus, it appears that plaintiff Plourde has based this cause of action on the allegation that he was retaliated against for making a complaint of misconduct in May 2014.

Defendant neither addressed the theory that Plourde was retaliated against for reporting this misconduct in its moving papers nor submitted evidence (e.g., discovery responses) to show that Plourde no longer intends to pursue this theory.[4] Further, Plourde has objected to Defendant’s motion for summary adjudication by arguing that he “has alleged other acts of retaliation beyond those that occurred while a member of the narcotics unit in 2012 and 2013, that are actionable[,]” such that the fourth cause of action cannot be summarily adjudicated even if those claims are not actionable. (Opp., p. 17:8-12.) Although Plourde did not address this claim specifically, Plourde cited this allegation in support of this assertion. (Opp., pp. 17:12 [stating, in connection with the argument regarding this cause of action, “See F. above”], 16:23-27 [citing, inter alia, paragraph 35 in support of Plourde’s argument that the FEHA causes of action cannot be summarily adjudicated on the ground that Defendant did not challenge events that occurred after he was transferred to Foothill Homicide].)

The court therefore denies Defendant’s motion for summary adjudication as to Plourde’s fourth cause of action for retaliation in violation of Labor Code section 1102.5.

The court denies defendant City of Los Angeles’s motion for summary adjudication.

The court orders plaintiffs Debra Kane and Robert Plourde to give notice of this ruling.

[1] The court did not consider “Defendant’s Response to Plaintiffs’ Separate Statement of Disputed, Undisputed, and Additional Material Facts in Opposition to City’s Motion for Summary Adjudication” because a reply separate statement is not authorized by statute. (Code Civ. Proc., § 437c, subd. (b)(4) [“The reply shall not include any new evidentiary matter, additional facts, or separate statement submitted with the reply and not presented in the moving or opposing papers”].)

[2] The court notes that “temporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory [or nonretaliatory] reason for the termination [or other adverse action].” (Arteaga, supra, 163 Cal.App.4th at p. 353.) But Defendant has not offered a legitimate, nonretaliatory reason for the alleged adverse employment action, and has instead argued that Kane cannot make a prima facie showing of retaliation on this ground.

[3] Defendant argued that the April 2015 transfer cannot support this claim on the ground that Plourde “complained to Green after he had already been notified of his transfer[,]” such that there exists no causal connection between that complaint and his transfer. (Mot., p. 12:21-23.) But Defendant did not show that Plourde contends that this transfer was done in retaliation of his later complaint about that transfer.

Moreover, although Defendant argues that it planned to transfer the affected detectives in March 2015 for the legitimate and non-retaliatory reasons of restoring order to Foothill and providing the officers with a fresh start, Defendant did not argue that such evidence shows that Defendant “would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity[,]” and instead appears to be arguing that it meets its burden under the McDonnell-Douglas standard requiring an employer show only a legitimate, non-retaliatory reason for the action. (Vatalaro, supra, 79 Cal.App.5th at pp. 378 [setting forth McDonnell Douglas burden-shifting test], 379; Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 914 [defendant did not meet its burden to summarily adjudicate 1102.5 cause of action by failing to employ the framework of 1102.6].)

[4] The court notes that Plourde has asserted, in his opposition papers, that he “does not intend to pursue the 2012 and 2013 discrimination and retaliation allegations (neither FEHA nor Labor Code § 1102.5) while in the Narcotics unit as an actionable basis for damages.” (Opp., p. 17, n. 4.) Based on the facts alleged in the Complaint and his government claim, it appears that the May 2014 report of this unlawful behavior was made after Plourde was transferred from the narcotics unit to the Foothill division. (Compl., ¶¶ 66-67 [Plourde was reassigned to the homicide table following his August 2013 report of discrimination and harassment]; RJN Ex. D, Plourde Government Claim, p. 3:1-3 [alleging that he was transferred in August 2013].)

johneen jones , et al.; Plaintiffs, vs. city of los angeles , et al.; Defendants.	Case No.:	BC604336

	Hearing Date:	May 1, 2025

	Time:	10:00 a.m.

	[Tentative] Order RE: defendant’s motion for summary adjudication