Judge Theresa M. Traber, Case Number: 20STCV19714, Date: 2024-01-04 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV19714, Date: 2024-01-04 Tentative Ruling

Case Number: 20STCV19714 Hearing Date: January 4, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 4, 2024 TRIAL DATE: February 27, 2024

CASE: Brown v. City of Los Angeles

CASE NO.: 20STCV19714

(1) MOTION TO FILE UNDER SEAL

(2) MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

MOVING PARTY: (1)(2) Defendant City of Los Angeles

RESPONDING PARTY(S): (1) No opposition on eCourt as of 01/02/24 (2) Plaintiff Raymond Brown;

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for whistleblower retaliation that was filed on May 22, 2020. Plaintiff alleges that he was retaliated against for making internal complaints regarding racially discriminatory remarks made by one of his superiors as an officer of the Los Angeles Police Department.

Defendant moves for summary judgment or summary adjudication, and to have portions of that motion placed under seal.

TENTATIVE RULING:

Defendant’s Motion to File Under Seal is DENIED.

Defendant’s Motion for Summary Judgment is DENIED.

Defendant’s alternative Motion for Summary Adjudication is DENIED.

DISCUSSION:

Motion to Seal

Defendant moves to file portions of its Motion for Summary Judgment or Summary Adjudication under seal.

The sealing of court records is governed by California Rules of Court rules 2.550 and 2.551. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 68.) The presumption of open access to court records does not apply to “records that are required to be kept confidential by law.” (Cal. Rules of Court, rule 2.550(a)(3).) A party seeking to seal a court record or seeking to file a record under seal must do so by motion or application supported by a declaration showing facts justifying the record’s sealing. (Id., rule 2.551(b)(1).)

California Rules of Court rule 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

Once sealed, a record can only be unsealed by order of court. (Id., rule 2.551(h)(1).) So long as it remains under seal, all parties must refrain from filing anything not under seal that would disclose the sealed matter. (Id., rule 2.551(c).) If a party files a new document referring to sealed matter, it must submit an unredacted version of the document under seal and a redacted one for the public record. (Id., rule 2.551(b)(5); H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 889.)

Defendant moves to file portions of its Motion for Summary Judgment or Summary Adjudication under seal, including portions of the memorandum of points and authorities, portions of the separate statement of undisputed material facts, portions of fourteen separate exhibits, and portions of two supporting declarations. However, while Defendant filed a notice of motion and lodged the relevant documents with the Court, no memorandum of points and authorities in connection with this motion was ever submitted to the Court, nor were any supporting materials that might show the legal and factual basis for this motion. Without these materials, the Court has no basis to make the necessary factual determination that would entitle Defendant to have these documents placed under seal.

Accordingly, Defendant’s Motion to Seal is DENIED.

Motion for Summary Judgment

Defendant moves for summary judgment on Plaintiff’s Complaint. For the reasons stated below, Defendant has failed to demonstrate that it is entitled to summary adjudication of either cause of action asserted against it. Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

Motion for Summary Adjudication

Defendant moves in the alternative for summary adjudication of Plaintiff’s causes of action for retaliation under the Fair Employment and Housing Act and for whistleblower retaliation under Labor Code section 1102.5.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

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. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

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. 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.)

Defendant’s Separate Statement

Pursuant to Rule of Court 3.1350, subdivision (b), a motion for summary adjudication must set forth the specific causes of action, affirmative defenses, claims for damages, or issues of duty and must be repeated, verbatim, in the separate statement. (Cal. Rule of Court 3.1350(b).) Further, the separate statement must, with respect to each cause of action that is the subject of the motion, separately set forth each supporting material fact that is claimed to be without dispute with respect to the cause of action that is the subject of the motion. (Rule 3.1350(d)(1)(B).) Defendant’s separate statement does not reproduce the issues as framed in the notice of motion, verbatim. Instead, the separate statement improperly combines both causes of action and lists 71 items which purport to be facts material to all causes of action, without distinction. Defendant’s separate statement is not in compliance with the Rules of Court, and the Court would be within its authority to deny the motion on this defect alone. However, as Plaintiff has not objected to the motion on this basis and has instead substantively responded to the motion, the Court will overlook Defendant’s noncompliance and address the motion on its merits.

Plaintiff’s Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of the First Amended Complaint in Preciado v. City of Los Angeles, LASC Case No. 19STCV12061. Plaintiff’s request is GRANTED pursuant to Evidence Code section 452(d) (court records).

Plaintiff’s Evidentiary Objections

Plaintiff objects to paragraph 4 of the Declaration of Giselle Espinoza offered in support of Defendant’s Motion as lacking foundation and personal knowledge of the truthfulness of the explanation in the 2019 memorandum selecting Officer Jeffrey Lee as Police Officer III in the Media Relations Division. Plaintiff’s objection is OVERRULED. These objections go to the weight of the evidence, not its admissibility.

First Cause of Action: Retaliation in Violation of the Fair Employment & Housing Act

Defendant moves for summary adjudication of the first cause of action for retaliation in violation of the Fair Employment and Housing Act.

"[I]n order to 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. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation '" 'drops out of the picture, '"' and the burden shifts back to the employee to prove intentional retaliation." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4^th 1028, 1042.) “Protected activity” for the purposes of a retaliation claim occurs when a plaintiff “has opposed any practices forbidden under [FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA].” (Gov. Code § 12940(h).)

Defendant argues that Plaintiff cannot prevail on this cause of action because he cannot establish a causal link between the protected activity and the adverse employment actions alleged in the Complaint. Defendant also argues in the alternative that it had a legitimate, nonretaliatory reason for its actions.

1. Causation

Defendant first attacks Plaintiff’s prima facie case for retaliation under FEHA, arguing that he cannot establish a causal link between his protected activity and the adverse actions complained of.

The undisputed facts are these: Plaintiff is a Black officer in the Online Unit of the Los Angeles Police Department’s Media Relations Division, holding the rank of Police Officer II. (Separate Statement of Undisputed Material Fact Nos. 1-3.) In late 2017, LAPD Communications Director Josh Rubenstein twice greeted the Online Unit office with “how are you boys?” (SSUMF No. 7.) Plaintiff and another Black officer, Police Officer III Lyle Knight, asked Rubenstein not to address them as “boys” in light of the term’s derogatory history as applied to Black men. (Id. No. 8.) Plaintiff and Knight reported the incident to their supervisor, Sergeant Frank Preciado. (No. 9.) After a third incident, Sgt. Preciado complained to Captain Patricia Sandoval. (Nos. 11-12.) Captain Sandoval overheard Rubenstein address the Online Unit as “boys” a fourth time, after which she apologized to Plaintiff and Knight. (Nos. 13-14.) Captain Sandoval told Plaintiff that she had informed Rubenstein that it was “not cool” to greet Plaintiff and Knight in that manner. (No. 14.) After these incidents, Captain Sandoval and Rubenstein became “cold and dismissive” toward Plaintiff and Knight. (Nos. 15-16.) The Online Unit was given additional responsibilities and had their work schedules changed and office location moved. (No 17.) In 2018, Sandoval and Rubenstein both told Plaintiff and Knight that they would not be able to advance unless they left the Media Relations Division. (No. 18.)

Plaintiff applied for one of two Police Officer III positions within the Media Relations Division on October 9, 2018. (SSUMF No. 39.) Plaintiff was interviewed on October 18, 2018 by a three-person panel, composed of Lieutenant Chris Ramirez, Lieutenant Kevin Brawner, and Detective Meghan Aguilar. (SSUMF No. 21, 39.) Plaintiff received an average interview score of 2.33 out of 3, placing him behind eight other applicants for the position. (No. 39.) Lt. Brawner gave Plaintiff a perfect score of 3 out of 3, but the other interviewers gave Plaintiff a 2 out of 3. (Id.) Plaintiff was not selected for either opening. (SSUMF Nos. 41, 43.) Lt. Brawner told Plaintiff that he was the most qualified applicant and would have been accepted had he applied for a vacancy in any other division. (No. 40.) Brawner told Plaintiff that one of the officers who was selected, Officer Marroquin, was selected for the position because “he was allegedly Capt. Sandoval’s guy.” (No. 42.) Plaintiff applied for a second P3 vacancy on June 20, 2019, where he was again interviewed by Brawner and Ramirez. (SSUMF No. 58-59.) Plaintiff received a score of 2.75 out of 3 and was the third ranked applicant. (SSUMF No. 59.) Brawner again gave Plaintiff a score of 3 out of 3, but Ramirez ranked Plaintiff 2.5 out of 3. (Nos. 60-61.) Plaintiff was not selected for the 2019 opening. (No. 62.) Lt. Brawner told Plaintiff that one of LAPD command’s considerations regarding Plaintiff’s application was a separate discrimination lawsuit by Sgt. Preciado, Plaintiff’s former supervisor. (SSUMF Nos. 47, 64.)

Defendant contends that Plaintiff cannot prove a causal link between his complaints and his non-selection for the P3 position in either 2018 or 2019. Defendant relies principally on Plaintiff’s responses to Special Interrogatories, in which Plaintiff stated that the employees aware of his complaints were Rubenstein, Sandoval, Brawner, Preciado, Knight, and Officers Chris Noh. and Luis Garcia. (SSUMF No. 69.) Defendant argues that, of these individuals, only Brawner had any input into the selection process, and, each time, Brawner gave Plaintiff the highest interview score and favorable reviews. Thus, Defendant argues, the only person with knowledge of Plaintiff’s complaints was the one person who treated Plaintiff most favorably, and thus could not have retaliated against him. As Defendant has offered evidence that Plaintiff cannot show a causal relationship between his failure to promote and his protected activity, the burden of proof shifts to Plaintiff to demonstrate a triable issue of fact.

Plaintiff argues in opposition that he has unearthed additional evidence since those discovery responses were propounded which shows that Ramirez and Aguilar were aware of Plaintiff’s complaints before he applied for either vacancy. Plaintiff offers a sworn declaration from Sgt. Preciado, who states under penalty of perjury that he reported Plaintiff’s complaints and Rubenstein’s comments to both Ramirez and Aguilar before Plaintiff’s 2018 interview. (Statement of Additional Material Facts No. 37.) Plaintiff also offers evidence, including deposition testimony from both Sandoval and Aguilar that the interviewers for the 2018 promotion were selected by Sandoval. (AMF No. 36.) In reply, Defendant argues that this evidence is too far removed from the P3 interviews to show causality because a gap of nine months between Preciado’s report and the 2018 interview, much less eighteen months before the 2019 interview, is too distant to suggest a causal link under existing case law. However, none of Defendant’s authorities in support of that contention involve a failure to promote. (See Clark Cnty. Sch. Dist. v. Breeden (2001) 532 U.S. 268, 273-74 [transfer to different position]; Loggins v. Kaiser Permanente Intern., (2007) 151 Cal. App. 4th 1102, 1104 [termination].) Transfers and terminations may be carried out at any time, whereas the record shows that promotions to leadership positions only occur when vacancies arise. It therefore does not follow that retaliation should not be inferred when the undisputed facts show that Plaintiff was told he would not advance in the Media Relations Division and found that statement to be true at the first opportunity. Further, the evidence shows that Plaintiff was subjected to a pattern of retaliatory conduct which began soon after his initial complaints and continued through his promotional rejections. (AMF 21, 23, 24, 28, 30.)

Plaintiff has thus offered evidence that, contrary to Defendant’s position, the interviewers who scored Plaintiff negatively were aware of his complaints and, further, that there is a triable issue of fact as to the causal link between his protected activity and the failures to promote him to the first three openings available to him.

2. Legitimate Non-Retaliatory Reason

Defendant argues in the alternative that even if Plaintiff has demonstrated a prima facie case for retaliation under FEHA, Defendant nevertheless had legitimate, nonretaliatory reasons for the failure to promote Plaintiff.

An employer “has discretion to choose among equally qualified candidates, provided the discretion is not based upon unlawful criteria.” (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 259.) An employer may make these decisions “for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all” provided it does not act for a retaliatory reason. (Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 344.)

Defendant contends that Officer Marroquin was selected for one of the 2018 vacancies because he was the highest ranked applicant. (SSUMF No. 23.) Defendant points to the interviewer reports and promotion memorandum, which highlight Officer Marroquin’s skill with video creation, role in creating Critical Incident Videos, and understanding of the importance of his work in relations between LAPD and the public. (SSUMF Nos. 23-26, 41.) Defendant argues that Officer Lopez was selected for the other 2018 vacancy because he was the second ranked applicant, based on his experience providing information to media outlets, his passion for the job, and his relationship with the media. (SSUMF Nos. 28-31.) As for the 2019 position, Defendant argues that Officer Lee was selected for that P3 vacancy because he was the first ranked applicant because of his background in community relations and social media, his experience as a Press Relations Officer, and his personal interaction with his colleagues. (SSUMF Nos. 53-55.) Thus, Defendant argues, Plaintiff was not selected to fill any of the P3 vacancies because other candidates were judged to be more suitable based on their particularized experience, demeanor, and skillset, as reflected in their interview performance.

In opposition, Plaintiff argues that this evidence is not sufficient because, notwithstanding the performance of the other candidates, Defendant has not justified the low ratings Plaintiff received from two interviewers who knew about his protected conduct. He also contends that Defendant has failed to address the pattern of retaliation complained of by Plaintiff. (Opposition, p. 23.) The Court concurs. Defendant offers no evidence explaining why Plaintiff received a lower ranking or was a less-favorable candidate than the other officers. The heart of Plaintiff’s retaliation claim is that Plaintiff was given improperly low interview scores in retaliation for his protected activity which naturally resulted in non-promotion to the P3 positions he was seeking. Contrary to Defendant’s assertions in reply, Plaintiff need not prove that any of the other officers had their scores increased. It is sufficient for Plaintiff to show that his own scores were improperly deflated as that is the crux of his complaint.

Further, Defendant failed in any way to address Plaintiff’s broader contention that he was subjected to adverse employment actions well before his candidacy for promotion. Where only part of a plaintiff’s claim is challenged under section 437c, summary adjudication is not available because the motion does not dispose of an entire cause of action as is required under subdivision (t) of the statute. (Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 251 [“Summary adjudication must completely dispose of the cause of action to which it is directed.”].) Defendant’s failure to address all of the adverse employment actions alleged to be retaliatory means that its initial burden has not been satisfied so the burden does not shift to Plaintiff to raise a triable issue of fact. For this reason, the Court finds that Defendant has not properly shown a legitimate nonretaliatory reason for failing to promote Plaintiff.

Even if the Court reached the conclusion that Defendant had demonstrated a legitimate non-retaliatory reason for failing to promote Plaintiff, Defendant’s own evidence, in concert with Plaintiff’s production would demonstrate a triable issue of fact as to retaliation. By Defendant’s own admission, Lt. Brawner informed Plaintiff that his association with Sgt. Preciado, who brought a separate claim against Defendant for retaliation in response to a complaint regarding racial discrimination, was part of LAPD command’s decision in 2019. (SSUMF Nos. 47, 64.) This admission tends to suggest, drawing all inferences in favor of Plaintiff, that Plaintiff was not selected in part because Plaintiff made similar complaints, and thus was presumed to be aligned with Sgt. Preciado. Defendant contends in reply that Lt. Brawner subsequently denied discussing the lawsuit in his deposition, but this contradiction in Defendant’s own evidence merely reinforces the conclusion that a triable issue of fact exists. Defendant’s alternative assertion that this argument is too speculative is unsupported by any authority and, in any event, is not persuasive because Detective Aguilar’s denial that she knew what information Plaintiff possessed about the Preciado lawsuit has no bearing on Plaintiff’s argument. (See Defendant’s Exh. B. p. 45:20-25.) Indeed, Plaintiff’s argument is that Defendant failed to promote him based on his association with Preciado and the similarity of complaints despite Plaintiff being otherwise uninvolved with Preciado’s suit. At the least, this evidence creates a triable issue of fact as to the basis for Defendant’s decision in 2019 and whether that decision was motivated by retaliatory animus.

This conclusion is further supported by Plaintiff’s “me-too” evidence of a pattern of retaliation against officers in the Media Relations unit who complain about racial discrimination by the same senior staff members. (See Meeks v Autozone, Inc. (2018), 24 Cal. App. 5th 855, 871.) Sgt. Preciado offers a sworn declaration stating that he was subjected to extensive retaliation for complaining about an order from Captain Sandoval not to speak Spanish or broadcast Spanish language channels within the Media Relations Division, mirroring the allegations in his complaint. (AMF No. 73.) Defendant argues that this evidence does not show that Ramirez was specifically responsible for any of the alleged retaliatory conduct and does not address any of the other panelists’ decisions not to promote Plaintiff. The Court disagrees. Although allegations in a pleading are not evidence, a witness’s sworn statement that he was retaliated against by the same supervisor who selected the 2018 panel which interviewed Plaintiff is evidence of retaliation against Plaintiff as well.

Finally, Plaintiff also offers some evidence that Defendant failed to adhere to its own standards in selecting Officer Anibal Lopez for one of the 2018 vacancies. Captain Sandoval testified in deposition that professionalism, composure, and control of one’s own emotions were “important” in the interview process. (AMF No. 34.) However, both Ramirez and Sandoval admitted that Lopez lost his composure and cried during his interview. (AMF No. 47.) Defendant argues that “highly rating an applicant’s interview despite them exhibiting strong external emotions about their job” is not evidence of retaliation. To the contrary, a contradiction between the stated values and expectations and the ultimate decision is evidence that the reason for the decision was mere pretext. (See McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388-389 [pretext as pertaining to discrimination claims].)

Taken together, this evidence tends to show that Defendant’s reasons for selecting Officer Lopez in 2018 were not truthful, that Defendant’s senior officers engaged in a pattern of retaliation for complaints of racial discrimination, and that Plaintiff was not selected in 2019 because of his connection to Sgt. Preciado. Thus, even if Defendant had demonstrated a legitimate, non-retaliatory reason for its conduct, the Court would be inclined to find that there is a triable issue of fact as to whether Plaintiff was not promoted in retaliation for his complaints.

As the Court has found that there is a triable issue of fact as to both causation and whether Defendant’s reasons for its actions were legitimate, Defendant is not entitled to summary adjudication of this cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication of the First Cause of Action is DENIED.

Second Cause of Action: Whistleblower Retaliation

Defendant moves for summary adjudication of the second cause of action for whistleblower retaliation under Labor Code section 1102.5. The parties agree that this cause of action survives or fails on the same evidence and arguments as the first cause of action. Accordingly, for the reasons stated above in connection with the first cause of action, Defendant’s Motion for Summary Adjudication of the Second Cause of Action is DENIED.

CONCLUSION:

For the reasons explained above, Defendant’s Motion to File Under Seal is DENIED.

Defendant’s Motion for Summary Judgment is DENIED.

Defendant’s alternative Motion for Summary Adjudication is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: January 4, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.