Judge: Salvatore Sirna, Case: 21PSCV00703, Date: 2023-06-29 Tentative Ruling

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Case Number: 21PSCV00703    Hearing Date: August 17, 2023    Dept: G

Defendant City of El Monte’s Motion for Summary Judgment

Respondent: Plaintiff Christopher Cano

TENTATIVE RULING

Defendant City of El Monte’s Motion for Summary Judgment is DENIED.

BACKGROUND

This is an employment rights action. Plaintiff Christopher Cano is a member of the El Monte Police Department (EMPD) and served on the EMPD’s Special Weapons and Tactics (SWAT) team since 1998. In 2016, Plaintiff was promoted to the position of commander for EMPD’s SWAT team. On November 5, 2020, Plaintiff alleges EMPD’s chief, David Reynoso (Reynoso), issued a memorandum that backdated the effective dates of three EMPD promotions in order to circumvent the decision by Jessica Ancona (Ancona), the mayor for the City of El Monte (City), to not allow any further promotions.

On November 6, 2020, Plaintiff informed Ancona during an investigative interview that the promotion date in the November 5 memo was backdated. Plaintiff also informed Ancona that Plaintiff believed Reynoso’s actions were in violation of federal, state, or local law. The same day, Plaintiff then briefed Reynoso on Plaintiff’s interview with Ancona pursuant to EMPD protocols. On February 29, 2021, Plaintiff alleges the City retaliated against Plaintiff by removing Plaintiff from the SWAT team which resulted in Plaintiff’s demotion from SWAT team commander. Plaintiff alleges that during the proceeding twenty-five years, no SWAT team commander had ever been transferred out of the SWAT team without a promotion to the higher rank of captain.

On August 30, 2021, Plaintiff filed a complaint against the City and Does 1-25, alleging retaliation for whistleblowing activities in violation of Labor Code section 1102.5.

On April 17, 2023, the City filed the present motion for summary judgment. After a hearing on the motion was held on June 29, the court continued the hearing to August 17 for parties to submit supplemental briefing. A final status conference is set for March 19, 2024, with a jury trial on April 2, 2024.

ANALYSIS

The City moves for summary judgment on the grounds that (1) Plaintiff did not engage whistleblowing activity, (2) Plaintiff’s alleged whistleblowing activity did not cause the alleged retaliation, and (3) the City’s personnel management decisions are immunized.

For the following reasons, the court DENIES the City’s motion.

Legal Standard

Summary Judgment

A motion for summary judgment or adjudication provides “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.) It must be granted “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, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party 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.)

Retaliation

Labor Code section 1102.5, subdivision (b) prohibits an employer from retaliating “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.”

“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.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) Once plaintiff has met the burden and shown “by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action,” the defendant-employer must “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.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.)

Protected Activity

The City argues Plaintiff did not engage in protected activity because Plaintiff did not blow the proverbial whistle on anything. The court disagrees.

In retaliation actions pursuant to Labor Code section 1102.5, protected activity occurs when an “employee discloses ‘reasonably based suspicions of illegal activity. [Citation.]’” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592 (Ross), quoting Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.) “To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed. [Citation.]” (Ibid, quoting Fitzgerald v. El Dorado County (E.D. Cal. 2015) 94 F.Supp.3d 1155, 1172.)

In this case, the City suggests Plaintiff made the report to Mayor Ancona because Plaintiff disagreed with the promotions and had concerns about their financial impact. (MSJ, p. 4:8-14, 4:28-5:3, 7:4-16.) However, the City’s separate statement does not provide any factual support for this assertion. On the other hand, Plaintiff provided evidence showing Plaintiff informed Mayor Ancona of the nature of the allegedly backdated promotions because Plaintiff believed Reynoso’s actions constituted falsification of official records. (PAUMF[1], ¶ 17; Yu Decl., Ex. 1, ¶ 19-20, Ex. 2, p. 168:13-169:16, 177:17-178:18, 181:6-19, 183:14-20, 185:12-22, 208:14-209:4, 215:19-216:1, Ex. 3, ¶ 8-9.) While the City also argues Plaintiff failed to identify which code section was violated in making the report to Mayor Ancona, Labor Code section 1102.5 does not require such specificity. Instead, “it requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity.” (Ross, supra, 36 Cal.App.5th at p. 593.)

In supplemental briefing, the City argues protected activity does not include complaints, concerns, conversations, or criticisms about administrative and personnel matters. (Suppl. Memo., p. 2:23-25.) While such an exception exists, the court notes that the City’s argument fails to appreciate the nuance of the exception. While “debatable differences of opinion concerning policy matters are not protected disclosures,” this rule “does not, of course, apply to alleged violations of statutes or regulations. In that circumstance, there may be a reasonable belief that a violation has occurred, even though the existence of an actual violation may be debatable.” (Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832, 853, quoting White v. Department of Air Force (Fed. Cir. 2004) 391 F.3d 1377, 1382.)

In Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, the reporting of student complaints to a supervisor were not protected activity as they were made in the context of internal personnel matters rather than legal violations. (Id., at p. 1385.) But that same decision also noted that reports regarding legal issues with the school’s funding could constitute protected activity as the court noted the disclosures “present a whistleblowing archetype—disclosing the allegedly unauthorized use of public assets.” (Id., at p. 1385-1386; see also Levi v. Regents of University of California (2017) 15 Cal.App.5th 892, 904 [while complaints about violations of school policy and work environment were not protected activity, allegations of conflicts of interests, retaliation, and improper funding were protected because the policies violated had “force and effect of statutes”].)

As discussed above, Plaintiff does not challenge the City’s hiring or personnel decisions. Instead, Plaintiff allegedly believed Reynoso violated the law by backdating promotions, thereby falsifying official records.

Accordingly, based on Plaintiff’s statements and the declaration of Mayor Ancona, the court finds a triable issue of material fact exists as to whether Plaintiff reasonably believed the backdating of promotions constituted falsification of government records.

Causation

The City contends Plaintiff cannot establish a causal link between Plaintiff’s protected activity and Plaintiff’s transfer from the SWAT team. The court disagrees.

“The causal link may be established by an inference derived from circumstantial evidence, such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615, quoting Jordan v. Clark (9th Cir. 1988) 847 F.2d 1368, 1376.) “Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.” (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 70, quoting Cohen v. Fred Meyer, Inc. (9th Cir. 1982) 686 F.2d 793, 796.)

In this case, the City contends Plaintiff cannot establish a causal link because Plaintiff was denied a promotion to captain before Plaintiff made the report to Mayor Ancona. (MSJ, p. 9:10-18.) However, the adverse employment action alleged was not the City’s failure to promote Plaintiff but rather the City’s subsequent decision to remove Plaintiff from his position as commander of EMPD’s SWAT team. (PAUMF, ¶ 26.)

Thus, the City’s sole argument on the issue of causation fails.  The court finds a triable issue of material fact exists as to whether action taken by the City was a retaliatory employment decision.

Immunity

The City maintains it has immunity to make personnel management decisions. The court disagrees.

In maintaining it has immunity to make personnel management decisions, the City primarily relies on Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 (Jones). There, the California supreme court noted supervisors are not personally liable for the discriminatory acts of their employer. (Id., at p. 1162.) However, it is unclear how this authority supports the City’s argument.

First, Jones did not address retaliation claims pursuant to Labor Code section 1102.5 and instead dealt with harassment claims pursuant to FEHA. (Id., at p. 1173-1174.) Second, and most important, the Jones case did not deal with supervisory immunity as Chief of Police Reynoso is not a party to this action and only the City is a defendant. Thus, the court finds the City’s contention unpersuasive and without merit.

Accordingly, the City’s motion for summary judgment is DENIED.

CONCLUSION

Based on the foregoing, the court DENIES the City’s motion for summary judgment.