Judge Yolanda Orozco, Case 19STCV33158 2023-05-03 Tentative Ruling

Judge: Yolanda Orozco, Case: 19STCV33158, Date: 2023-05-03 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 19STCV33158 Hearing Date: May 3, 2023 Dept: 31

PROCEEDINGS:¿ MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

MOVING PARTY:¿ Defendant County of Los Angeles (“County”)

RESP.¿ PARTY: Plaintiffs Art Hernandez, Alfred Gonzalez, Benjamin Zaredini, David Casas, Louis Granados, Mario Contreras, Oscar Escobedo and Ariela Lemus

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

TENTATIVE RULING

The Court GRANTS the County’s request for summary adjudication as to Plaintiff Alfred Gonzalez’s first cause of action for discrimination, the third cause of action for retaliation in violation of the FEHA, the fourth cause of action for racial discrimination, and the fifth cause of action for failure to take all reasonable steps to prevent discrimination.

Because the County has failed to show that the Plaintiffs did not engage in a protected activity, the Court DENIES the County’s request for summary adjudication of the first, third, fourth, and fifth causes of action as to Plaintiffs David Casas, Mario Contreras, Oscar Escobedo, Louis Granados, Art Hernandez, Ariela Lemus, and Benjamin Zaredini.

The Court DENIES the County’s request for summary adjudication as to the second, seventh, and eleventh causes of action.

The Court GRANTS the County’s request for summary adjudication of the sixth, eighth, ninth, and tenth causes of action.

BACKGROUND

In this action, eight sheriff deputies who were formerly assigned to the East Los Angeles station—Plaintiffs Art Hernandez, Alfred Gonzalez, Benjamin Zaredini, David Casas, Louis Granados, Mario Contreras, Oscar Escobedo, and Ariela Lemus—allege that they were pressured to quit their jobs or leave the station and that they were otherwise harassed by other deputies who are alleged members of a gang known as the Banditos.¿

On September 18, 2019, the Plaintiffs filed suit against Defendant County of Los Angeles (“County”) and the Individual Defendants: Rafael “Rene” Munoz (“Munoz”), Gregory Rodriguez (“Rodriguez”), David Silverio (“Silverio”), and Michael Hernandez (“Hernandez”) (collectively “Individual Defendants”).¿

The operative Sixth Amended Complaint (“6AC”) asserts causes of action for:

1) Unlawful Retaliation: Labor Code § 1102.5 (Whistleblower Law);

2) Harassment and Hostile Work Environment in Violation of FEHA;

3) Retaliation in Violation of FEHA;

4) Racial Discrimination in Violation of FEHA;

5) Failure to Take All Reasonable Steps to Prevent Discrimination in Violation of FEHA;

6) Negligence—Vicarious Liability;

7) Intentional Infliction of Emotional Distress;

8) Assault;

9) Battery;

10) Conspiracy to Interfere with Civil Rights under 42 U.S.C. § 1985 and Deprivation of Civil Right under 42 U.S.C. § 1983;

11) Civil Rights Violation under state code § 52.1 (The Bane Act); and

12) Taxpayer Suit to Prevent the Illegal Expenditure of Funds.

On February 17, 2023, the County filed a motion for summary judgment, or summary adjudication, in the alternative.

On March 14, 2023, the Court SUSTAINED the County’s objection Plaintiffs’ separate statement and ordered the stricken portions to be refiled to comport with the Code of Civil Procedure section 437c subdivision (b)(1) and California Rules of Court, rule 3.1350 subdivision (e). Defendants were allowed to file a response to the separate statement.

On April 07, 2023, the Plaintiffs filed an amended separate statement.

On April 17, 2023, Individual Defendants again filed objections to Plaintiff’s Separate Statement

LEGAL STANDARD

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. Atl. 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.) The moving party is entitled to summary judgment if they can show that there is no triable issue of material fact or if they have a complete defense thereto. (Aguilar, supra, 25 Cal. 4th at 843.)¿ Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (Cal. Code of Civ. Proc. §437c(f).)¿¿¿¿¿¿¿

¿¿

A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this 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 defense thereto.”¿(Id.)¿“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.)¿¿¿¿

¿¿

On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿¿¿

¿¿

Defeating summary judgment requires only a single disputed material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”] [emphasis added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿

EVIDENTIARY OBJECTIONS¿¿

I. The County’s Objections to Plaintiffs’ Separate Statement.

On March 14, 2023, the Court found the Plaintiffs’ separate statement, which was more than 800 pages long, was deficient and SUSTAINED the Individual Defendants objections and ordered the following portions of the Plaintiffs’ separate statement stricken:

Response ¶¶ 1, 6, 16, 25, 29, 31, 46, 48, 50, 53, 65, 69, 71, 72, 74- 76, 84, 86, 90, 92, 102, 109, 114, 129, 130, 131, 134-36, 137 141, 143, 148, 150, 164, 165, 170, 172, 177, 183, 184, 198, 199, 201-10, 205-07, 209, 211, 247, 282, 371, 457, 544, 635, 781, and 887.

Plaintiffs were allowed to file an amended separate statement, which Plaintiffs did on April 17, 2023. The County again objected to Plaintiffs’ separate statement on the basis that the deficiencies outlined by the Court on March 14, 2023, remain.

The Court has the discretion to find that the Plaintiffs’ facts not stated in conformity to section 437c, subdivision (b)(3) will be deemed undisputed, which the Appeal Court found was appropriate in Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74. In addition, Plaintiff submitted additional facts which Plaintiffs argue remain disputed. (See Plaintiffs’ Additional Disputed Facts at 8-27 and pages 207-227.) However, the Court was able to ascertain whether material facts cited by Plaintiffs were indeed disputed and proceed to address the Motion on the merits.

“Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party.” (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.) Accordingly, the Court OVERRULES the County’s objections to the Plaintiffs’ separate statement.

II. The County’s Objections to Plaintiffs’ Notice of Lodgment

Objections Nos. 2, and 5 are SUSTAINED.

Objections. Nos. 1, 3, 4, and 6 are OVERRULED.

III. The County’s Objections to the Declaration of Dr. Catherin Barrett

Objections Nos. 1, 4, 5, 8, and 9 are SUSTAINED.

Objections Nos. 2, 3, 6, 7, and 10-53 are OVERRULED.

The Court finds that Dr. Barrett has special knowledge, skill, experience, training, or education to qualify her as an expert. Moreover, the Court finds that her meeting with the Plaintiffs through telehealth and review of the Sixth Amended Complaint is sufficient for her to render an opinion on the Plaintiffs’ mental health.

IV. The County’s Objections to the Declaration of Robert Olmsted

Objections No. 3 and 4 are SUSTAINED.

Objections Nos. 1, 2 and 5 are OVERRULED.

The Court declines to rule on objection No. 6 as it is not material. (Code Civ. Proc., § 437c subd. (q).)

V. The County’s Objections to the Declaration of Sean Kennedy

Objections Nos. 3, 4, 7, 8, 17, 19, 20, 22, 23, 24 to 29, 32, 37, 38, and 39 are SUSTAINED.

Objections Nos. 1, 2, 5, 6, 11 – 16, 18, 30, 31, and 33 are OVERRULED.

Objections Nos. 10, 21, 34, 35, and 36 are not material to the disposition of this Motion and the Court declines to rule on the objections. (Code Civ. Proc., § 437c subd. (q).)

VI. The County’s Objections to the Declaration of Britta Steinbrenner

Objections Nos. 1 to 3 are OVERRULED.

VII. The County’s Objections to the Declaration of Rosa Gonzalez

Objections Nos. 1 and 3-18 are SUSTAINED.

Objection No. 2 is OVERRULED.

VIII. The County’s Objections to the Declaration of Vanessa Chow

Objection No. 1 is SUSTAINED.

IX. The County’s Objections to the Declaration of Mathew Burson

Objections Nos. 4 -6, 12, 18, 19, and 24 are SUSTAINED.

Objections 1-3, 7, 8-11, 13-17, 20, 21, 22, 25, and 26 are OVERRULED.

The Court declines to rule on objection No. 23 as it is not material. (Code Civ. Proc., § 437c subd. (q).)

X. The County’s Objections to the Declaration of Vincent Miller

Objections Nos. 1 to 5 are SUSTAINED.

XI. The County’s Objections to the Declaration of David Casas

Objections Nos. 4, 15, 17, and 23 are OVERRULED and all other objections to the Declaration of David Casas are SUSTAINED.

XII. The County’s Objections to the Declaration of Mario Contreras

Objection No. 1 is SUSTAINED IN PART as to page 2 line 2 which states “because I was being a peacemaker.”

Objections No. 8, 9, and 27 are OVERRULED, all other objections to the Declaration of Mario Contreras are SUSTAINED.

XIII. The County’s Objections to the Declaration of Plaintiff Oscar Escobedo

Objections Nos. 1 to 37 are SUSTAINED.

Objection No. 20 is OVERRULED.

XIV. The County’s Objections to the Declaration of Plaintiff Alfred Gonzalez

Objections Nos. 1 to 3 and 40 to 45 are SUSTAINED.

Objection No. 39 is Overruled and Objection No. 46 is OVERRULED as to page 21, paragraph 41, lines 23 to 26 and SUSTAINED as to page 21, lines 26 to 27 beginning with “especially when someone . . ..”

XV. The County’s Objections to the Declaration of Plaintiff Louis Granados

Objections. Nos. 7, 10, 19, 21, 30 -33, 37, 48, and 58 are OVERRULED and all other objections to the Declaration of Louis Granados are SUSTAINED.

XVI. The County’s Objections to the Declaration of Plaintiff Art Hernandez

Objections Nos. 2 and 25 are OVERRULED and all other objections to the Declaration of Art Hernandez are SUSTAINED.

XVII. The County’s Objections to the Declaration of Plaintiff Ariel Lemus

Objection No. 7 is OVERRULED and all other objections to the Declaration of Plaintiff Lemus are SUSTAINED.

XVIII. The County’s Objections to the Declaration of Plaintiff Benjamin Zaredini

Objections Nos. 1, 7, 14, 17, and 19 are OVERRULED and all other objections to the Declaration of Benjamin Zaredini are SUSTAINED.

DISCUSSION

Summary of Case

The eight Plaintiffs are Los Angeles County Sherriff’s Department (“LASD”) deputies who worked at the East Los Angeles station. Plaintiffs allege they were harassed by a gang made of other Latino deputies called “Banditos” that effectively ran and controlled the East Los Angeles Station from 2017 to 2019.

Around 4:00 a.m. on September 28, 2018, after a party at Kennedy Hall celebrating the end of training for new deputies (the “Kennedy Hall incident”), Plaintiffs Casas, Contreras, Escobedo, Gonzalez, and Hernandez assert they were attacked by leaders of the Banditos gang (Individual Defendants: Rafael Munoz, Michael Hernandez, David Silverio, and Gregory Rodriguez).

The County asserts that the Individual Defendants were placed on administrative leave and then terminated following an investigation and that the Plaintiffs all received requested transfers to other stations or departments.

The County now moves for summary judgment, or summary adjudication, as to eleven of the twelve claims contained in the Sixth Amended Complaint.

1st, 3rd, 4th, and 5th COA: Discrimination, Failure to Prevent Discrimination, and Retaliation under FEHA and Labor Code Retaliation

A. McDonnell-Douglas Burden-Shifting Framework

For claims alleging discrimination and retaliation under FEHA, the plaintiff bears the initial burden of establishing a prima facie case for discrimination at trial. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (1973).) “The McDonnell-Douglas framework is modified in the summary judgment context. In a summary judgment motion in ‘an employment discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ (Citation.)” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861)

“If the employer meets its initial burden, the burden shifts to the employee to ‘demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were untrue or pretextual, or that the employer acted with a discriminatory animus, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination or other unlawful action.’” (Id. citing Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038 [italics original].)

“To state a prima facie case for discrimination in violation of the FEHA, a plaintiff must establish that (1) she was a member of a protected class, (2) she was performing competently in the position she held, (3) she suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 577.) FEHA makes it unlawful employment practice “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Cal. Gov't Code § 12940(k).)

To establish a prima facie case of retaliation under FEHA, Plaintiff must prove that “(1) [s]he 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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) To establish a prima facie case of retaliation under Labor Code section 1102.5, “a plaintiff must show that (1) he engaged in a protected activity, (2) his employer subjected him to an adverse employment action, and (3) there is a causal connection between the two.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)

B. Adverse Employment Action

The County argues that the Plaintiffs’ claims for Discrimination, Failure to Prevent Discrimination, and Retaliation in violation of the FEHA and Labor Code Retaliation fail because the Plaintiffs cannot show an adverse employment action.

An adverse employment action requires a “substantial adverse change in the terms and conditions of the plaintiff's employment.” (Holmes v. Petrovich Dev. Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054–1055.)

Plaintiffs allege eight categories of adverse employment actions: (1) withheld backup (6AC ¶ 32); (2) excessive calls (6AC ¶ 19); (3) unpaid overtime (6AC ¶ 37); (4) hostile MDC messages “purport[ing] to encourage hard work” (6AC ¶ 35); (5) forced “taxes” (6AC ¶ 161); (6) denied “earned” promotions (6AC ¶ 163); (7) denied, delayed, or unwanted transfers (6AC ¶ 57); and (8) unfair investigations (6AC ¶¶ 62, 163).

C. Plaintiffs Must Show the County Took an Adverse Employment Action

In Roby v. McKesson Corp. (2009) 47 Cal.4th 686, the California Supreme Court explained that “our case law makes clear that the FEHA's discrimination provision addresses only explicit changes in the ‘terms, conditions, or privileges of employment’ (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. [Citation.]” (Id. at 706 [italics original].) “In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action. (Id. at 706 [italics original].)

In Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, the employee argued that a supervisor, Dr. Castro, subjected the employee to an adverse employment action “by criticizing his work during the interrogation-like meeting, ordering a wellness check on him when he was out sick, suspecting him of bringing a cell phone into work, and assigning him the primary crisis person on the same day as a union meeting.” (Id. at 735.) The Appeal court found Dr. Castro’s action to be “relatively minor conduct” that “did not threaten to materially affect the terms, conditions, or privileges of his job. None of Dr. Castro's actions resulted in any sort of formal or informal discipline or demotion in job responsibilities.” (Id. at 735.)

Here, the Plaintiffs fail to show that the withholding of backup, hostile MDC messages, and forced “taxes” were official actions taken by County. Instead, the Plaintiffs’ evidence shows that these actions were taken by individual deputies rather than the County. Plaintiffs present no facts to show that the County sanctioned or ratified said conduct or that said conduct resulted in discipline or a demotion.

i. Excessive Calls and End-of-Shift Calls

The County presents evidence that the Plaintiffs fail to show that they received excessive calls.

Plaintiff David Casas never received an excessive call and could not identify a single end-of-shift call. (UMF 14, 15.) As to Plaintiff Mario Contreras, the County asked him to identify each excessive call. (DCOE Ex. 30.) Contreras did not identify a specific call but asserted that he was sent over 1600 calls from 2017 to 2018. (Id.) The County asserts that Plaintiff Oscar Escobedo could not identify a single day where he received excessive or end-of-shift calls. (UMF 63-64.) Plaintiff Alfred Gonzales testified that he only received end-of-shift calls “a couple times.” (UMF 81.) Plaintiff Louis Granados identified one-end-of shift call and identified a single shift in which he received excessive calls. (UMF 100, 101.) Plaintiff Art Hernandez admitted he never received an end-of-shift call. (UMF 128). Plaintiff Ariela Lemus identified one shift in which she received two end-of-shift calls, one which she did not take, and three routine calls that were handled by the next shift. (UMF 151-153.) Plaintiff Benjamin Zaredini admits that Defendants “could not pull this tactic on me and knew it . . . this is one form of harassment they could not pull on me.” (UMF 183; DCOE Ex. 63 Nos. 2-3.)

The burden shifts to the Plaintiffs to show that they received excessive calls and that calls materially altered the terms and conditions of employment. “[I]t is incumbent upon the employee to produce ‘substantial responsive evidence’ demonstrating the existence of a material triable controversy as to pretext or discriminatory animus on the part of the employer. [Citation.].” (Serri, supra, 226 Cal.App.4th at 861–862.) Here, each Plaintiff failed to produce substantive evidence that they received excessive calls and end-of-shift calls. Instead, Plaintiffs cited their own discovery responses and filed declarations asserting that they received excessive calls or end-of-shift calls without evidence. (See Great Am. Insur. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 450 [party cannot use his own discovery responses to oppose summary judgment]; Coyne v. Krempels (1950) 36 Cal.2d 257, 262 [party cannot rely on own pleadings]; and D'Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 20-22 [“a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.”].)

As a matter of law, the Plaintiffs responses to discovery must fully disclose evidence that is known to them, and on a motion for summary judgment, Defendants may point to the Plaintiffs lack of evidence as an admission that the Plaintiffs have discovered nothing. (See Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107.) “If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations” as Plaintiff did here, “the burden of production will almost certainly be shifted to [Plaintiffs] once defendants move for summary judgment and properly present plaintiffs' factually devoid discovery responses.” (Id. at 107.)

Therefore, the Plaintiffs have failed to produce evidence that they received excessive calls or end-of-shift calls or that the said calls altered the terms and conditions of employment.

ii. Unpaid Overtime

The County presents evidence that Casas could not identify a single time he was forced to work overtime without pay. (UMF 22.) Plaintiff Alfred Gonzalez was never forced to work overtime without pay. (DCOE Ex. 45 [Gonzalez Depo. 180:22-24].) Plaintiff Louis Granados recalled two instances when he was a trainee, where he was pressured to not request overtime but both times, he ignored the pressure and requested overtime. (UMF 103.) Plaintiff Art Hernandez admitted he was never told to put in overtime after he was off training and earned $48,000.00 in overtime in 2018. (UMF 133, 134.) Plaintiff Benjamin Zaredini admits that he was not forced to work overtime. (UMF 187.) Plaintiff Ariela Lemus admitted no one told her to not put in for overtime. (UMF 161.)

Since the County met its burden of showing that the Plaintiffs were not forced to work overtime without overtime pay, the burden is on the Plaintiffs to produce substantive responsive evidence. (Serri, supra, 226 Cal.App.4th at 861–862.) Here, the Plaintiffs fail to meet their burden of showing that they worked overtime without overtime pay.

iii. Denial of Promotions or Demotions and Unfair Investigations

The County asserts that Plaintiff Casas was ineligible for a promotion because he failed two sergeants exams (Casas Decl. ¶ 2.) It is also undisputed that Plaintiff Casas has never been demoted. (UMF 24.) Plaintiff Contreras admitted he was never denied an earned promotion. (DCOE Ex. 31 at Res. No. 5.) Plaintiff Gonzalez admitted he was never denied a promotion. (UMF 84.) The County asserts that Plaintiff Granados was offered a promotion to watch deputy but did not take the promotion and instead went to the training bureau. (DCOE Ex. 44 [Grandado Depo. 51:14016, 77:4-21].) Plaintiff Hernandez also admitted he was never denied a promotion for which he was eligible. (DCOE Ex. 53 at Response No. 5.) Plaintiff Lemus also admitted she was not denied a promotion. (DCOE Ex. 58 at Res. No. 9.) The County asserts that Plaintiff Zaredini failed the sergeant’s exam in 2017 and 2020. (Cardenas Decl. ¶ 2.)

Since the County met its initial burden, the burden shifts to the Plaintiffs to produce substantive evidence that they were denied earned promotions or suffered a demotion.

Here, Plaintiff Casas produced evidence that he did pass a sergeant exam in October of 2022 and was eligible for promotion as he was deemed to have an “Appraisal of Promotability” of 96.67% but was not promoted. (PCOE Ex. 66; Ex. 42 [Casa Depo. 98:12-15;99: 1-4; 100:1-99].) Plaintiff Zaredini states that he passed the sergeants exam in 2019 but his promotion was blocked by former Sheriff Villanueva due to his involvement in this action. (Ex. 31 [Vera Depo. 43:6, 45:3-6, 71:12-24]; Zaredini Decl. ¶ 10.)

Plaintiff Hernandez and Escobedo state they were given a fifteen-day suspension for not reporting the Kenney Hall incident despite reporting it to Lieutenant Mejia. (PCOE Ex. 33 [Tardy Dep. 130-16-20]; Ex. 35 [Mejia Depo. 97:11-16]; Hernandez Decl. ¶¶ 13, 27; Escobedo ¶¶ 2, 6, 13.). The Court notes that page 130 of Exhibit 30 is missing from Plaintiffs’ Compendium of Evidence. Accordingly, a triable issue of fact exists.

Plaintiff Granados asserts that his promotion to the Watch Deputy position was delayed and that he was forced to take an outside position earning less money. (Grandaos Decl. ¶¶ 3, 13.) Granados also presents the testimony of Sargent Rosa Gonzalez who states she witnessed Plaintiff Granados be denied a promotion to Veteran’s liaison deputy due to his filing of this suit. (PCOE Ex. 68; Rosa Gonzalez Decl. ¶¶ 14-17.)

Plaintiff Lemus asserts her promotions have been blocked by the County due to a rigged IAB investigation and includes a copy of disciplinary action taken against her due to her complaints about the Banditos. (Lemus ¶¶ 6, 8; PCOE Ex.15.) The County asserts that under St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, false allegations and investigations are not sufficient to show an adverse employment action. In St. Myers, “[a]ll the investigations concluded that the complaints against [the plaintiff] were unsubstantiated and no action was taken against her.” (Id. 305.) The plaintiff found another job and resigned claiming constructive termination due to intolerable working conditions. (Id.) Hence, the Appeal Court agreed that the employee “failed to raise a triable issue of fact that Dignity Health or its agents were behind the false allegations that led to investigations and rumors.” (Id. at 319.) Here, Plaintiff Lemus, unlike the Plaintiff in St. Myers, did have an employment action taken against her that resulted in her being suspended without pay from her position as deputy for five (5) days. (PCOE Ex. 15.) Moreover, Lemus asserts that has been relieved of duty for several months. (Lemus Decl. ¶ 6.) The County does not address Lemus’ assertion that she was suspended and then relieved of duty in connection to her complaints about the Banditos.

Moreover, Plaintiff Mario Contreras did present evidence that he was suspended without pay due to the Kennedy Hall incident. (PCOE Ex. 67.) The County’s reliance on Campbell v. Hawaii Department of Education (9th Cir. 2018) 892 F.3d 1005, to assert that an IAB investigation is not an adverse action, is unavailing because the facts in Campbell are distinguishable. In Campbell, the employee was investigated but the Department of Education “nonetheless took no action against her as a result” and the employee was unable to show a “resulting change to the conditions of her employment[.]” (Id. at 1013.) Here, Plaintiff Contreras can show that he was suspended without pay.

In its reply, the County fails to address Plaintiff Casas’ assertion that he passed the sergeants exam and earned a promotion or Plaintiff Granados’ assertion that he was forced to take another promotion for less pay due to delays in obtaining the watch deputy position. The County also fails to address Plaintiff Zaredini’s evidence that his prometon was blocked due to the filing of this action. Moreover, County fails to provide evidence that Contreras, Escobedo, Hernandez, and Lemus were not suspended due to the Kennedy Hall Incident or that the suspension was not an adverse employment action.

Therefore, triable issues of fact exist as to whether Plaintiffs Casa, Contreras, Escobedo, Hernandez, Granados, Lemus, and Zaredini suffered an adverse employment action due to their suspensions, denial, or delayed promotions.

iv. Transfers

The County argues that Plaintiffs cannot show that their transfers to other stations was an adverse employment action. “A transfer is not an adverse employment action when it is into a comparable position that does not result in substantial and tangible harm.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 393.)

Since the County met its burden, the burden is on Plaintiff to show that the transfers, even if forced, resulted in a substantial and tangible harm. Plaintiffs fail to do so.

D. Protected Activity

The County also argues that Plaintiffs’ retaliation claims fail because Plaintiffs cannot show they engaged in a protected activity.

“Specifically, section 12940(h) makes it an unlawful employment practice ‘[f]or any employer ... to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’” (Yanowitz, supra, 36 Cal.4th at 1042 [italics original].) An employee engages in a protected activity “‘when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381.)

The County presents Plaintiff Casas’ deposition testimony where he admits that he was interviewed by Lieutenant Mejia in the spring of 2018 but told Mejia nothing about the harassment or bullying because he did not trust Lieutenant Mejia. (UMF 6, DCOE Ex. 23 [Casas Depo. 75:22-76-4].) However, the County also presents evidence that all Plaintiffs, including Plaintiff David Casa, participated in and collaborated with investigators of the Internal Criminal Investigations Bureau (“ICIB”) regarding the] Kenney Hall incident. (DCOE Ex. 21, 22.) The County fails to explain why participation in an ICIB investigation does not qualify as a protected activity, given that Plaintiffs assert they were retaliated against for reporting the Banditos.

The County also fails to show that Plaintiff Escobedo did not report Munoz’s harassing actions to Lieutenant Mejia. (PCOE Ex. 70 [Mejia Depo. 102:14-22, 136:12-18].) The County also fails to show that Gonzalez did not speak to Lieutenant Mejia. (DCOE Ex. 45 [Gonzalez Depo. 98:15-18].) Gonzalez asserts that he spoke with Mejia on the phone after the Kenney Hall incident. (Id.) The County also fails to show that Gonzalez’s complaint to Mejia was not related to a FEHA Complaint.

At his deposition, Plaintiff Hernandez states that he did talk to Lieutenant Mejia about the Kennedy Hall incident but did not tell Mejia it was related to racial harassment. (DCOE Ex. 50 [Hernandez Depo. 346:8-24].) In his declaration, Plaintiff Hernandez assert that part of the reason he reported the Kenney Hall incident to Lieutenant Mejia was to report the Bandito’s criminal conduct. (Hernandez Decl. ¶¶ 3, 4.) Retaliation claims under Labor Code section 1102.5 are more expansive and include reports of criminal conduct to a government, law enforcement agency, or people with authority over the employee as a protected activity. (See Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592–593.)

Plaintiff Mario Contreras also admitted that he did not report any misconduct because he was afraid of being “black-balled.” (UMF 29,30; DCOE Ex. 28 [Contreras Depo. 39:6-8, 40:6-13, 41:2-6].) However, Contreras did tell ICIB investigators that he told his former training officer, Marc Elizondo about what happened at Kenney Hall. (DCOE Ex. 21 at 22, 21.) Elizondo advised Contreras not to say anything. (Id.) Despite this, Contreras did report the Kenney Hall incident to Mejia. (Id.) Nothing in Mejia’s testimony shows that Plaintiff Contreras failed to report the Kennedy Hall incident. (DCOE Ex. 70 [Mejia Depo. 149:21-24].) Thus, Contreras engaged in a protected activity.

The County also fails to show that Plaintiff Lemus did not make a complaint to Lieutenant Mejia. (DCOE Ex. 70.) Lemus’ reported alleged that Deputy Munoz created what she perceived to be a hostile work environment due to the manner he address less tenured deputies. (Id.)

The County asserts that Plaintiff Granados’ and Zaredini’s complaint to Lieutenant Mejia was not a protected activity because it did not report any illegal activity or FEHA violation. Lieutenant Mejia’s June 08, 2018 report states that Deputy Granados showed Mejia the MDC messages from Defendant Rafael Munoz because Granados found Munoz’s behavior to be “inappropriate, selective, and intimidating.” (PCOE Ex. 70 at 1285.) Mejia noted that Deputy Escobedo “also corroborated the information provided by Deputies Ayala and Granados as it pertained to Deputy Munoz allegedly creating a perceived hostile work environment.” (Id.) Plaintiff Zaredini also told Mejia that about several incidents that he believed created a hostile work environment. (Id. at 1281.) Mejia’s June 08, 2018 report is also entitled “Potential Hostile Work Environment,” with the title on the top of the report after the cover page. (PCOE Ex. 70.)

Accordingly, the County fails to show that the Plaintiffs did not engage in a protected activity when they participated and collaborated in the ICIB investigation and/or made complaints to Lieutenant Mejia. Moreover, the County fails to show that the Plaintiffs did not have a good faith belief they were reporting violations of FEHA or unlawful conduct.

Summary Adjudication of the 1st, 3rd, 4th, and 5th COA

Plaintiffs have failed to show that there is a triable issue of fact regarding an adverse employment action being taken against Plaintiff Alfred Gonzalez. Therefore, the Court GRANTS the County’s request for summary adjudication as to Plaintiff Gonzalez’s first cause of action for discrimination, third cause of action for retaliation in violation of the FEHA, fourth cause of action for racial discrimination, and fifth cause of action for failure to take all reasonable steps to prevent discrimination.

The County has failed to show that the Plaintiffs did not engage in a protected activity. Therefore, the Court DENIES the County’s request for summary adjudication of the first, third, fourth, and fifth causes of action as to Plaintiffs Casas, Contreras, Escobedo, Granados, Hernandez, Lemus, and Zaredini because triable issues of fact exist.

2nd, 4th, and 5th COA, Harassment and Hostile Work Environment, Racial Discrimination, and Failure to Prevent Discrimination

“To establish a prima facie case of a racially hostile work environment, [Plaintiffs are] required to show that (1) he was a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the Department is liable for the harassment.”

(Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) The McDonnell Douglas burden-shifting framework is not applied harassment claims because “there is no possible justification for harassment in the workplace,’ an employer cannot offer a legitimate nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927.)

The County states that the Plaintiffs’ claims for harassment, discrimination, and failure to prevent discrimination fail because there is no racial animus. The County asserts that the Plaintiffs began to experience harassment and discrimination only after they spoke out against the Banditos and not because they were Latino.

i. Evidence of Racial Animus

It is undisputed that the Banditos sub-group existed at the East Los Angeles station. (DCOE Ex. 20-22.) Defendant Rafael Munoz acknowledged to ICIb investigators that the Banditos Group existed at the East Los Angeles station. (DCOE Ex. 21 at 40.) Defendant Munoz denied being a member of the Banditos but admitted having a “Bandito” tattoo, which is described as a skeleton wearing a sombrero. (Id.) Defendant Gregory Rodriguez also admitted to ICIB that he had a Bandito tattoo but denied being a member of the Banditos. (Id. at 41.) Defendant David Silverio admitted to being a member of the Banditos and having a Bandito tattoo. (Id. at 42.)

Defendant David Silverio told ICIB investigators that he believes admittance into the “Banditos” was based on work ethic and that anybody could become a member of the group. (DCOE Ex. 21 at 42.) Plaintiff Art Hernandez described the groups at the East Los Angeles station as “either Bandidos, prospects, or associates” and people who were not liked by the Banditos and did not give into their “antics.” (DCOE Ex. 50 [Hernandez Depo.360:22-361:4. 360:22-361:4].) Plaintiff Alfred Gonzalez stated that based on his experience with gangs, the Banditos are a gang and as a gang, they targeted individuals of the same race. (PCOE Ex. 45 [Gonzalez Depo. 88:17-25].)

Plaintiff Louis Granados testified that he knew of an African American classmate, named James Barber, that was bombarded with work by Banditos in order to force him out of the station because he was Black. (DCOE Ex. 44 [Granados Depo. 139:9-18-140:3-9.].) Plaintiff Mario Contreras testified that Banditos targeted “Whites, Asians, and others” who defied them. (DCOE Ex. 28 [Contreras Depo. 150:23-151:7].) Contreras specified that based on his observations, Banditos members would try to remove Sherriff’s deputies from the station or tell them to transfer out if the deputies refused to be influenced by Banditos members. (DCOE Ex. 28 [Contreras Depo. at 150:23- 151:7].) Plaintiff Mario Contreras clarified that deputies who did not go against what the Banditos said had no issue with the Banditos. (Id.) However, if “you had a strong belief and you didn’t like what they were doing, and you were not just doing it, you were just working your job, and it wasn’t to their standards, then you had an issue.” (Id.) This was true of Whites, Asians, and others. (Id.)

Accordingly, the County has its burden of showing that any alleged harassing behavior was not based on racial animus but a race-neutral reason such as not being liked by the Banditos or not meeting their work standards. The burden shifts to the Plaintiffs to show that a triable issue of fact exists as to whether the harassing behavior was due to racial animus.

The relevant question is whether the harassment Plaintiffs allege they experienced was motivated by their race. Here, the Plaintiffs present evidence that the harassment they experienced was more severe or pervasive because they were Latino deputies who opposed the Banditos.

Deputy Justin Waites testified that because he is Black, he believed that he was not expected to conform to the Banditos group in contrast to the young Latino Deputies who did have that expectation based on cultural bonds and growing up in the same areas meaning that Latino Deputes who deviated from the Banditos were ostracized. (PCOE Ex. 23 [Waites Depo. 143-145].) Deputy Waites also testified that personally never experienced a situation where backup was withheld on a dangerous call. (Id. [Waites Depo. 12:20-23].)

Deputy Alan Soohoo, who is Asian, asserts that while he may not have received special treatment from the Banditos, because he just focused on his work, he could escape harassment. (PCOE Ex. 26 [Soohoo Depo. 31:2-8, 51:21-25].)

“Q: Did you try to stay clear of the Banditos while you¿did your job all those years at the station? ¿

A: No. I mean, I wouldn’t purposefully cause any problems, but I didn’t have a problem. I was never harassed.¿

Q: You were just focused on doing your work? ¿

A: Yes.”¿

(Id. [Soohoo Depo. 31:15-19])

Deputy James Duran also testified that it was Latino deputies who were harassed. “It was known that Deputy Munoz would either pressure these guys to be making more arrests or to be more aggressive. If that didn’t happen, it was common when he was working shifts at the desk that he would berate them with calls or with messages on the MDC, disparaging messages against them. That was well known by Deputies across the shifts.” (PCOE Ex. 24 [Duran Depo. at 93:7-17].) Deputy Duran asserted that Defendant Rafael Munoz’s behavior was only aimed at Latino deputies. “All the hostility coming from that group of people, the hostility in the station was not directed toward anyone except Hispanic Deputies.” (PCOE Ex. 24 [Duran Depo. at 96:15-17].)

Plaintiffs present evidence that non-Latino Deputies, like Justin Waites and Alan Soohoo, could escape harassment from the Banditos even though they were not Banditos members or did not go along with the Banditos. Non-Latino deputies would be left alone by the Banditos while Latino deputies were expected to conform to the expectations of the Banditos or else face harassment and retaliation for not conforming. In other words, the expectation to conform to the Banditos and the harassment Plaintiffs faced was due, in part, to the fact that they were Latino. Thus, there is evidence of racial animus.

Accordingly, the Plaintiffs succeed in showing that a triable issue of fact exists as to whether the harassment Plaintiffs faced was due to the fact that the Plaintiffs were Latino deputies who opposed the Banditos group or if they were harassed for a neutral non-racial reason.

ii. Severe and Pervasive Harassment

“[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.)¿Harassment occurs¿when the workplace is permeated¿with¿“discriminatory intimidation,¿ridicule and insult that is¿sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869.) The offensive conduct¿must be of a repeated, routine, or generalized nature when the harassing conduct is not severe. (See Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 283.) Harassment that is occasional, isolated or sporadic is insufficient. (Id.)¿¿¿

“The working environment must be evaluated in light of the totality of the circumstances: whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.”¿(Miller v. Dep’t of Corrections (2005) 36 Cal.4th 446,¿462.

The Court finds that while Plaintiffs provided or were peer pressured to give money for fundraisers, the Plaintiffs lack personal knowledge as to whether the fundraisers were a “shakedown” for taxes for the Banditos. (UMF 13, 42, 61, 79, 126, 149, 182.) The Plaintiffs fail to provide admissible evidence showing otherwise.

The County asserts that no backup was withheld from Plaintiffs and Plaintiffs cannot show they were harassed via MDC messages. The County cites Duncan v. Manager, Dept. of Safety, City and County of Denver (10th Cir. 2005) 397 F.3d 1300, for the proposition that “the failure to receive backup, an angry outburst by a lieutenant during an IAB investigation, and her general ostracization by other officers,” are insufficient to show that an adverse employment action took place. (Id. at 1314.) While it is true that the Tenth Circuit found the following to be “insufficient to support a retaliation claim” because it did not result in a demotion or change to employment benefits, the Tenth Circuit did not find the withholding of backup cannot be used as evidence to support a claim for discrimination or harassment or to show that the failure to receive backup materially affected the terms and conditions of employment.

The County asserts that there is no evidence that backup was withheld from the Plaintiffs as shown by the Incident History Reports involving the calls and the Plaintiffs’ testimony.

Deputy Bobby Olivarez testified that incident history reports involving patrol calls would show on the MDC if someone offered to assist as backup on a call, but not whether the person actually showed up to assist or if the backup was in fact received. (PCOE Ex. 25 [Olivarez Depo. at 87:4-21].) Deputy James Duran also testified that “[s]ometimes an assigned unit does not mean that unit is going to show up.” (PCOE Ex. 24 [Duran Depo. at 101].) In other words, deputies can refuse to assign themselves to calls or assign themselves to a call without actually showing up to provide backup. Accordingly, Plaintiffs have presented sufficient evidence that incident history reports are insufficient to show whether the Plaintiffs received adequate backup on specific calls. Moreover, the trier of fact could find that the withholding of backup, even on one single occasion, is sufficient evidence of severe harassment due to its physically threatening nature and interference with the Plaintiffs’ working conditions. (See Miller, supra, 36 Cal.4th at 462.)

Deputy Concepcion Garcia testified that while on patrol with Defendant David Silverio on a call involving domestic violence or a possibility of danger, Defendant Silverio would assign himself to the call. (PCOE Ex. 21 [Garcia Depo. at 119:21-25].) However, when Plaintiff Zaredini had a similar call, she and Defendant Silverio did not assign themselves to the call. (Id. [Garcia Depo. at 120:1-3].) Deputy Concepcion Garcia testified that after observing Defendant Silverio withhold backup she “feared the same, that I wasn’t going to be backed up in the event I had an emergency.” (Id. 37:12-14.)

Moreover, Deputy Justin Waites confirmed it was the practice of at East Los Angeles station to always go out on calls when a partner had a dangerous call, and the deputy was available to go out. (PCOE Ex. 23 [Waites Depo. at 12:8-13].) Deputy Waites testified that although he never had a call where he went out on a dangerous call and received no backup, he did observe an instance “[y]ears ago” where a deputy was struggling with a call involving a weapon and Deputy Munoz sent out a message “Don’t’ help him.” (Id. [Waites Depo. at 12:20-23; 13:5-16]). Deputy Waites adds that he had witnessed calls where deputies did not receive backup, and recalls one incident in particular where Plaintiff Zaredini went on a call “but there was no one there to back him up, so I – my partner and myself responded.” (Id. [Waites Depo. at 16:5-8, 16-19])

Plaintiff David Casas testified that he witnessed a call involving assault with a deadly weapon and a gunshot victim that was assigned to Plaintiff Art Hernandez and Defendant Munoz sending out an MDC message “All, do not help out Art Hernandez on this hot call.” (PCOE Ex. 43 [Casas Depo. 45:10-12]; Ex. 37 [Munoz Depo. 20:25; 21:1-12; 101:23-25; Ex. 47 [Art Hernandez Depo. 140:20-24, 142:10-13, 143:6-8].) The County fails to provide evidence that Defendant Munoz was someone who had the authority or discretion to order other deputies to not provide backup to certain individuals due to his job duties.

However, Plaintiffs do present evidence that Individual Defendants Rafael “Rene” Munoz, Gregory Rodriguez, David Silverio, and Michael Hernandez, did have such authority because they were “shot callers” for the Banditos. Plaintiffs assert that a “shot caller” is the person calling the shots, the leader of the gang. (PCOE Ex. 24 [Duran Depo. 23:3-5[.) In his deposition, Deputy Alan Soohoo asserted his belief based on his personal observation that all four Individual Defendants were each “shot callers” for the Banditos. (PCOE Ex. 26 [Soohoo Depo. at 11:9-4; 36:20-25-37:1-4].) At his deposition, Deputy James Duran testified that he either heard or observed Individual Defendants being referred to as “shot callers” at the station. (PCOE Ex. 24 [Duran Depo. at 23:11-25].) Sargent Rosa Gonzalez testified that Defendant Michael Hernandez himself informed her he was a shot caller. (PCOE Ex. 28 [R. Gonzalez Depo. at 25:20, 117:10-23].) “What I understood is that nothing gets done at the station on p.m. shift without his – without his approval.” (Id. [R. Gonzalez Depo. at 104:21-23].) Moreover, Defendants Munoz, Rodriguez, and Silverio, admitted to having the Bandito tattoo. (DCOE Ex. 21.)

ICIB investigators noted that Munoz believed he was a mentor for newer deputies and that he “tried to assist newer deputies by providing them guidance, but they would take it personally instead of constructively.” (DCOE Ex. 22 at 30.) However, in light of the fact that Munoz was associated with the Banditos and criticized the work ethic of deputies he did not like or feel were not working up to the Banditos standards, triable issues of fact exist as to whether Munoz used his influence as a Bandito member to try to push other deputies out of the East Los Angeles station by pressuring them to leave or transfer out of the East Los Angles station or by withholding backup.

For example, Deputy Justin Waites observed that Plaintiff Oscar Escobedo being harassed by Defendant Rafael Munoz via MDC messages:

“What I saw was Deputy Escobedo constantly getting messages from Deputy Munoz regarding his performance at work. And he was constantly telling Oscar what he needed to do, how he needed to do it, and it just became too much for Oscar, I think.”

(PCOE Ex. 23 [Waites Depo. at 21:1-9].) Deputy Justin Waites saw this behavior as an issue because Defendant Munoz was not Escobedo’s supervisor. (PCOE Ex. 23 [Waites Depo. at 21:16].) Deputy Waites asserts that he perceived the MDC messages as petty “and I would characterize them as harassing in nature” though not racist. (PCOE Ex. 23 [Waites Depo. at 23:6-15].) Deputy Waites also described the behavior as bullying. (PCOE Ex. 23 [Waites Depo. at 23:21].)

Defendant Rafael Munoz’s behavior regarding the work ethic of Latino Deputies and disparaging MDC messages was also observed by Deputy James Duran. (PCOE Ex. 24 [Duran Depo. at 93:7-17].) Deputy Alan Soohoo also observed Defendant Munoz having meetings with deputies to “[b]asically, to lay down the law and explain what to do and what not to do at the station.” (PCOE Ex. 26 [Soohoo Depo. at 30:2-9].) At his deposition, Deputy Soohoo asserted that the station’s leadership issue was that “deputies being told what to do and what not to do all the time and not by a supervisor, but by another peer.” (PCOE Ex. 26 [Soohoo Depo. at 27:23-25].) The Office of Inspector General (OIG) for the County of Los Angeles investigation into the Kennedy Hall incident expressed “the motive for these assaults [at Kennedy Hall] was intimidation and enforcement of standards of policing established by the veteran deputies who identified as Banditos.” (PCOE Ex. 12 at 27.)

When Lieutenant Richard Mejia interviewed Plaintiff Ariela Lemus regarding the June 08, 2018 inquiry into a Potential Policy of Equality Violation/Hostie Work Environment investigation, Plaintiff Ariela Lemus told Mejia that during the last phase of her training, Munoz threaten her “by stating that because of her attitude, deputy personnel were not going to respond to back-up requests once she was signed off training. (DCOE Ex. 75 at 1436.) Lemus states that Munoz told her: ”she was going to find herself along in an island with no help.” (Id.) Plaintiff Lemus told the same thing to ICIB investigators. (DCOE Ex. 22 at 17.)

Plaintiff Alfred Gonzalez stated that during the Kenney Hall incident, Defendant Rafael Munoz joined Defendant Silverio who told Gonzalez “‘You were a zero in custody” or “’You were a pussy in custody. You’re going to be a pussy out here.’” (DCOE Ex. 21 at 16.) According to the ICIB report:

“Subject M. Hernandez then said, ‘You know what, like I have no problem slapping you in front of everybody here because I know nothing's going to happen to me. Because I'm East LA.’ Witness Gonzalez said Subject M. Hernandez kept pointing to his fist saying, ‘You know what, I'm fucking East LA. And if anybody has a problem with it, you know, right here,’ as he pointed toward his fist[.]”

(DCOE Ex. 21 at 16.) Plaintiff Gonzalez told the ICIB investigators that he believed the fight was the result of deputies trying to intimidate him and get him to leave the station. (DCOE Ex. 21 at 18.)

The County fails to present evidence that, Defendants Rafael Munoz, Gregory Rodriguez, David Silverio, and Michael Hernandez, had a supervisory or managerial role with the authority to criticize or comment on the work ethic of East Los Angeles deputies. Without more, the Court cannot characterize Defendant Munoz’s and Seilverio’s behavior or any other behavior related to comments about the Plaintiffs’ work ethic as conduct within the scope of the Individual Defendants’ job performance rather than “conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Janken, supra, 46 Cal.App.4th at 63.)

Moreover, Plaintiff David Casas asserts that in a call involving a mentally ill person, two or three more units were expected to show up, but only Plaintiff Louis Granados and a sergeant showed up to provide assistance. (DCOE Ex. 23 [Casas Depo. 169-171].) Plaintiff Casas also asserts that he and Plaintiff Ariela Lemus were the only deputies that assisted Plaintiff Benjamin Zaredini on a March 06, 2019 call. (Id. 172:15-171:23.) Lemus had to drive all the way from Maywood to provide assistance despite other deputies being available nearby. (Id. 173:12-13.) Lemus also states that during the July 09, 2018 call assigned to the patrol unit of Plaintiffs Zaredini and Deputy Joel Garnica, Plaintiffs Lemus and Granados had to volunteer to assist by assigning themselves to provide backup on the call since no one else had volunteered to assist. (PCOE Ex. 48 [Lemus Deo. 187:22-188:1]; UMF 98.)

Similarly, on the June 29, 2018 call for an assault with a deadly, Plaintiff Lemus again had to volunteer to provide backup and drive out of her patrol area because no other deputies in the area signed up to assist. (PCOE Ex. 48 [Lemus Depo. 166:12-13.) It was not until Plaintiff Zaredini requested more help that other units showed up to assist. (Id. at 168:1-4.) On the October 27, 2018 call, Contreras stated that other deputies arrived after the danger had passed, meaning the traffic stop was executed and the suspect was in detention. (DCOE Ex. 35 [Contreras Depo. 184:1-5].)

Moreover, the Plaintiffs present evidence that backup was expected on routine calls, even the deputies did not specifically call in to request backup. “You expect your station, your fellow deputies to automatically go towards you, see if you need help, see what’s going on, any out standings [sic] or whatever. It’s not the desk’s job to say, “Hey, guys. This guy just got a Victor. Go help him out.’ It’s – you got to hear it. If we heard that someone had a Victor, we’re going to go straight to him and make sure he's okay.” (PCOE Ex. 47 [Hernandez Depo. 208:25-209:1-7].) This practice was confirmed by Deputy Justin Waites. (PCOE Ex. 23 [Waites Depo. at 12:8-13].) Therefore, the Plaintiffs did not specifically need to show that backup was requested and then withheld by dispatch when the practice was that deputies in the same patrol area would check in on other deputies. Deputy Escobedo testified that he received backup from his friends, but other deputies assigned to the same shift would purposefully not show up because they did not want anything to do with him. (Ex. 44 [Escobedo Depo. 113:8-16].)

Lastly, the Plaintiffs present evidence that the harassment culminated in Plaintiffs Art Hernandez, Oscar Escobedo, David Casa, and Mario Contreras being either hit or injured during the Kennedy Hall incident by Defendants Rafael Munoz, Gregory Rodriguez, David Silverio, and Michael Hernandez. (DCOE Ex. 21, 22.)

Given that the power and influence of the Banditos and how they exerted that power at the station is unknown, triable issues of fact exist regarding the harassment the Plaintiffs experienced.

Moreover, triable issues of fact exist regarding facts common to all Plaintiffs as to whether the harassment and discrimination had a basis in racial animus or was based on a race-neutral reason of not being liked by the Banditos. The OIG report noted that this is not the first lawsuit brought against the County pertaining to the Banditos. (PCOE Ex. 12 at 4.) There was another lawsuit in 2014 wherein the Interim Sheriff John Scott vowed to conduct a thorough investigation, but Inspector General is unaware of any such investigation. (Id.)

“[I]f the court concludes that the plaintiff's evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the defendants' motion.” (Aguilar, supra, 25 Cal.4th at 856.) Defeating summary judgment requires only a single disputed material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”] [italics added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿

Therefore, the Court DENIES the County’s request for summary adjudication as to the second cause of action.

6th COA: Negligence

The necessary elements for a negligence cause of action are: (1) legal duty of care; (2) a breach of that duty; (3) proximate cause resulting in injury; and (4) damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) The California Supreme Court has held, “[t]he threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.” (Paz v. State of California (2000) 22 Cal.4th 550, 559.)

The County argues that Plaintiffs cannot establish duty because there is no special relationship between all sheriff’s deputies. The County states that the Plaintiffs cannot cite a single legal authority that supports the proposition that law enforcement officers owe a duty of care to every other officer in their department at all times.

The burden shifts to the Plaintiffs to show that as a matter of law, the County owed a duty of care to the Plaintiffs. In their opposing papers, the Plaintiffs fail to address this issue or present triable issues of material fact.

Therefore, the County’s request for summary adjudication as to the sixth cause of action is GRANTED.

7th COA: Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress (IIED) is committed when the defendant's conduct is intentionally intrusive and outrageous and has a traumatic effect on the plaintiff’s emotional tranquility. (Alcorn v. Anbro Engineering (1970) 2 Cal. 3rd 493, 498.) “[B]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Bogard v. Employers Cas. Co. (1985) 164 Cal. App. 3d 606, 616.)

Emotional distress is defined to include all highly unpleasant emotional reactions, including fright, shock, nervousness, anxiety, worry, horror, grief, mortification, humiliation, embarrassment, indignity, apprehension, fear, terror, and ordeal. (Fletcher v. Western Nat’l Life Ins. Co. (1970) 10 Cal.App.3d 376, 379.) Plaintiffs need not have suffered any traumatic emotional distress of the character of shock, horror or nausea; “the requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.” (Id.) Whether Defendant’s conduct was outrageous, oppressive or malicious is a question of fact for the jury. (See Alcorn, supra, Cal.3d at 499.)

The County argues that the Plaintiffs IIED claim fails because there is no evidence of outrageous misconduct, the Plaintiffs cannot establish severe emotional distress, and the IIED claim is barred by the workers’ compensation exclusivity doctrine.

A plaintiff “may pursue a claim for intentional infliction of emotional distress in the employment context where the conduct at issue violates [the] FEHA and also satisfies the elements of the claim.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101; see also Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 945–946; Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347.) Violation of the FEHA involves conduct that exists outside of the employment environment such that it is not subject to the exclusivity provisions of the workers' compensation law. Therefore, the County’s claim that the workers’ compensation exclusivity doctrine bars Plaintiff’s IIED claim is without merit.

Summary adjudication as to the seventh cause of action is precluded because triable issues of fact exist as to how much power and influence Defendants Munoz, Rodriguez, Silverio, and Hernandez had at the station and if they directed other deputies to harass Plaintiffs in order to force Plaintiffs to leave the station. Moreover, Plaintiffs David Casas, Mario Contreras, Oscar Escobedo, Louis Granados, Art Hernandez, Ariela Lemus, and Benjamin Zaredini present that they suffered an adverse employment action due to their reporting of the Banditos and the Kennedy Hall incident. (See Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123 [“Behavior may be considered outrageous if a defendant abuses a position which gives him power to damage the plaintiff's interest.”].) Moreover, Plaintiffs present evidence that the County was aware of the Banditos but failed to conduct an adequate investigation. (PCOE Ex. 12; 13 at COLA009678; M. Burson Decl ¶¶ 5, 6. 7, 11, 15; S. Kennedy Decl. ¶ 4.)

Moreover, the testimonies of Deputy Conception Garcia and Deputy Justin Waites, raise triable issues of fact as to whether the Defendants withheld backup to Plaintiffs. Various Plaintiffs reported seeing Defendant Rafael Munoz order that backup be withheld to Plaintiff Art Hernandez. Furthermore, the extent of each Defendants’ influence over other deputies by virtue of being “shot callers” remains disputed. In addition, triable issues of fact exist as to whether the various injuries Plaintiffs suffered during the Kennedy Hall incident are sufficient to show extreme and outrageous conduct by the Defendants.

Lastly, triable issues of fact exist as to whether Plaintiffs suffered extreme emotional distress. (See Barret Decl; Cohen Decl; Casas Decl. ¶ 35; Contreras Decl. ¶ 27; Escobedo Decl. ¶ 3, Granados Decl. ¶¶ 3, 15; A. Gonzalez Decl. ¶¶ 21, 38, 41, A. Hernandez Decl. ¶ 26; Lemus Decl. ¶ 24; Zaredini Decl. ¶ 17.)

Therefore, summary adjudication is DENIED to the seventh cause of action.

8th and 9th COAs: Assault and Battery

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm. (Citation) The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.”

(Carlsen v. Koivumaki¿(2014) 227 Cal.App.4th 879, 890.)

The County asserts it is not liable for the assault and battery claims Plaintiffs David Casas, Oscar Escobedo, Alfred Gonzalez, and Art Hernandez assert due to the Kennedy Hall incident because no one involved in the fight was acting within the scope of the employment with the Department. Moreover, the County argues that the workers’ compensation exclusivity bars the Plaintiffs’ claims for assault and battery against the County. The Court agrees.

“A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code § 815(a).) “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Id. § 815.2(a).)

Labor Code section 3601(b) “unambiguously prohibits imposing civil liability on an employer for one employee's assault and battery of another.” (Fretland v. County of Humboldt¿(1999) 69 Cal.App.4th 1478, 1487.) “The prohibition against imposing vicarious liability on an employer does not apply when there was positive misconduct by the employer such as when the employer ratified the tortious conduct of its employee and thereby became liable for the employee's wrongful conduct as a joint participant.” (Id. at 1489; see also Jones, supra, 152 Cal.App.4th at 1384.

Here, if the Plaintiffs contentions are taken as true that the Kennedy Hall incident arouse within the scope of employment, Plaintiffs’ assault and battery claims against the County would nevertheless be barred by the workers’ compensation exclusivity doctrine. More importantly, the Plaintiffs failed to present admissible evidence that the County ratified the conduct of Defendants Rafael Munoz, Gregory Rodriguez, David Silverio, and Michael Hernandez.

Therefore summary adjudication is GRANTED as to the eighth and ninth cause of action.

10th COA: Deprivation of Civil Rights Under 42 U.S.C. § 1983

“To state a claim for relief in an action brought under 42 U.S.C. § 1983, plaintiffs must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” (Perez v. City of Roseville (9th Cir. 2019) 926 F.3d 511, 518.)

The County argues that the Plaintiffs cannot show a deprivation of a constitutional right to support their 1983 claim.

The County argues that any claims premised on violations of the First Amendment fail because Plaintiffs are public employees whose speech regarding complaints about the Banditos was made pursuant to their employment responsibilities. “The First Amendment does not protect speech by public employees that is made pursuant to their employment responsibilities—no matter how much a matter of public concern it might be.” (Coomes v. Edmonds School Dist. No. 15 (9th Cir. 2016) 816 F.3d 1255, 1260.) Plaintiffs’ fail to cite case law that shows that “speaking out about and opposing the wrongful conduct and law violations, including under FEHA” were made in the Plaintiffs’ capacity as a private citizen rather than as public employees such that their First Amendment rights were violated. (Id. at 1264.)

As to Plaintiffs’ 1983 claim under the Fourth Amendment, Plaintiffs Casas, Contreras, Gonzalez, Hernandez, and Escobedo cannot show that the Individual Defendants acted under the color of law. The County cites Vasquez v. County of Los Angeles (C.D. Cal., Oct. 3, 2012, No. CV113849PSGPJWX) 2012 WL 12930526, to show that the defendants in Vazquez acted similarly to the Individual Defendants in this instant action such that they did not act under the color of law. In Vasquez, the defendants were found to not have acted under the color of law because the offending conduct was not related to the defendants’ performance of their official duties since they attended the party voluntarily, were not expected to perform law enforcement duties, were off duty, and engaged in violence in violation of the Sheriff’s Department written policy forbidding deputies from engaging in violence. (Id. at *4, 5.) In response, the Plaintiffs fail to distinguish Vasquez, from the facts of this case and thereby fail to show that Individual Defendants were acting under the color of law when Plaintiffs Casas, Contreras, Gonzalez, Hernandez, and Escobedo were assaulted and battered.

The County also asserts that any Fifth Amendment violations premised on violation of the Due Process Clause, fail because the County is not a federal actor. (See Lee v. City of Los Angeles (9th Cir. 2001) 250 F.3d 668, 687 [“The Due Process Clause of the Fifth Amendment and the equal protection component thereof apply only to actions of the federal government—not to those of state or local governments.”].) Accordingly, Plaintiffs claims 1983 claim against the County cannot be premised on violations of the Fifth Amendment.

Moreover, the Plaintiffs fail to show that the County had an official policy, custom, or practice that resulted in the Plaintiffs’ harassment, discrimination, or retaliation such that the County should be held liable for violations of the Fourteenth Amendment.

“A section 1983 plaintiff may establish municipal liability in one of three ways. First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a ‘longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity.’ [Citations] Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with ‘final policy-making authority’ and that the challenged action itself thus constituted an act of official governmental policy. [Citation.] Whether a particular official has final policy-making authority is a question of state law. [Citations.] Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it. [Citations.]”

(Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1346.)

Therefore, the Court GRANTS the County’s request for summary adjudication as to the tenth cause of action.

11th COA: Violation of the Bane Act

“A defendant is liable [under the Bane Act] if he or she interfered with or attempted to interfere with the plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion.” (Shoyoye v. City. of Los Angeles, (2012) 203 Cal. App. 4th 947, 956.) “The statute was intended to address only egregious interferences with constitutional rights, not just any tort.” (Ctr. for Bio-Ethical Reform, Inc. v. Irvine Co., LLC (2019) 37 Cal. App. 5th 97, 115.)

The County argues that the Plaintiffs’ eleventh cause of action fails because the Plaintiffs cannot show a deprivation of a civil right through a violent threat.

Since triable issues of fact exist regarding the harassment and discrimination Plaintiffs experienced, including the denial of backup and the Kennedy Hall incident and whether the Plaintiffs’ suspensions were warranted, the County fails to meet its burden that no triable issues of fact exist as to the eleventh cause of action.

Therefore, summary adjudication is DENIED as to the eleventh cause of action.

Conclusion

The Court DENIES the County’s request for summary adjudication as to the second, seventh, and eleventh causes of action.

The Court GRANTS the County’s request for summary adjudication of the sixth, eighth, ninth, and tenth causes of action.

Moving party to give notice.