Greg G. v. City of Lops Angeles CA2/3 ( 2014 )

Filed 11/19/14 Greg G. v. City of Lops Angeles CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
GREG G. et al., B248904
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC478101)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
David L. Minning, Judge. Reversed with directions.
McNicholas & McNicholas, Matthew S. McNicholas and Alyssa Schabloski;
Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney and Paul L. Winnemore for City of
Los Angeles.
_______________________________________
Plaintiffs and appellants Greg G., Mike B., Juan M., and Jesse S. appeal from
a judgment entered in favor of defendants and respondents City of Los Angeles (City)
and the Los Angeles Police Department (LAPD), after the trial court sustained without
leave to amend defendants’ demurrer to plaintiffs’ first amended complaint. On appeal,
plaintiffs contend that their complaint adequately states a cause of action for
whistleblower retaliation pursuant to Labor Code section 1102.5, subdivision (b). We
disagree. However, plaintiffs contend that they can amend their complaint to render it
adequate. We agree that if plaintiffs can amend their complaint in good faith to resolve
our concerns regarding specific reports of wrongdoing, the complaint would be
sufficient to survive demurrer. We therefore reverse with directions that the demurrer
be sustained with leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
1. Underlying Facts1
Plaintiffs are four LAPD officers who were assigned to the Internal Surveillance
Unit (ISU) in the Special Operations Division of the LAPD. The ISU conducts
surveillance on other LAPD officers suspected of criminal activity. As such, the
identity of officers assigned to ISU is kept confidential; their names do not appear on
official LAPD rosters and they are not permitted to enter LAPD buildings.
In April 2011, Captain Paul Hernandez took charge of the Special Operations
Division. Captain Hernandez was disappointed with the work of ISU, and indicated that
1
Because the case is on appeal from a judgment following an order sustaining
a demurrer without leave to amend, we consider the facts as pleaded in the operative
complaint, and matters which are judicially noticeable.
2
he would make some changes. On June 6, 2011, Captain Hernandez informed the ISU
officers that they all would be moved from a “4/10” work schedule (four days per week,
ten hour days) to a “9/80” work schedule (nine work days, total 80 hours worked).
Captain Hernandez indicated that this change was “ ‘not negotiable’ ” and if the officers
did not like it, they could “ ‘find new jobs.’ ”
The terms and conditions of employment with the LAPD were set forth in
a memorandum of understanding (MOU) between the City and the Los Angeles Police
Protective League (Union). The MOU does not permit a captain to unilaterally change
the shift times of the officers under his or her command.
Pursuant to the MOU, a “grievance is defined as a dispute concerning the
interpretation or application of [the] MOU or departmental rules and regulations
governing personnel practices or working conditions.” The first step to grievance
resolution is for the grievant to discuss the grievance informally with his or her
immediate supervisor. Plaintiff Mike B. reported to his immediate supervisor that
Captain Hernandez was trying to unilaterally change the schedule of all ISU members in
violation of the MOU. His supervisor told him that nothing could be done, and that
going to Captain Hernandez “would only make things worse.”
Plaintiff Mike B. then e-mailed a director of the Union regarding the improper
unilateral shift change. The Union director reported the information up the chain of
command. On June 14, 2011, Captain Hernandez was informed by a lieutenant that he
could not make the unilateral shift change.
3
Thereafter, Captain Hernandez called a meeting with 19 members of ISU.
Captain Hernandez stated that he was upset “that somebody had contacted the [Union]
and ‘exercised their rights.’ He was heard to say several times, ‘[S]omeone felt the
need to exercise their rights,’ and ‘now I’m going to follow the rules.’ ”2
Captain Hernandez’s comments were perceived as threats and a warning of retaliation.
In July 2011, Deputy Chief Mark Perez held a meeting with all members of ISU,
including plaintiffs. “The meeting concerned all of the on-going issues within ISU at
the time . . . . ” After the meeting, Deputy Chief Perez, “being aware of the retaliation
and the violation of law, did nothing to stop it.”
Thereafter, Captain Hernandez retaliated against all members of ISU, including
plaintiffs. For example, Greg G. lost rank from Sergeant II to Sergeant I; Mike B.’s
request for an extension of duty in ISU was denied; and when Mike B. was transferred,
he was identified on the monthly transfer list as leaving the Special Operations Division,
which exposed his identity as a former ISU officer.
2. The Instant Action
On January 26, 2012, plaintiffs filed their complaint in the instant action,
alleging a single cause of action for whistleblower retaliation under Labor Code
2
Captain Hernandez also “said, ‘okay, the bars are off,’ meaning ‘I’m not the
[c]aptain right now, tell it to me straight.’ ” Defendants suggest that “ ‘okay, the bars
are off,’ ” was a conciliatory statement which implied that Captain Hernandez wanted to
work out the dispute with the ISU officers openly and honestly. Plaintiffs, however,
perceived the statement as threatening. We cannot say, as a matter of law, that, in
context, the statement could not reasonably have been perceived as threatening.
4
section 1102.5, subdivision (b).3 Specifically, plaintiffs alleged that Captain Hernandez
retaliated against them for reporting his planned violation of the MOU to the Union and
Deputy Chief Perez. Plaintiffs’ complaint suggested the conduct they had reported
constituted a planned violation of the National Labor Relations Act (29 U.S.C.
§§ 151-169) and/or the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.)
(MMBA), which provides for collective bargaining and the creation of MOUs.
Defendants demurred. The demurrer was sustained. Plaintiffs were granted
leave to amend to identify the specific statutes Captain Hernandez’s reported conduct
had allegedly violated.
The operative pleading is plaintiffs’ first amended complaint, which eliminates
all reference to the National Labor Relations Act. Instead, plaintiffs allege that they
reported violations of seven specific provisions of the MMBA, and a violation of one
provision of the Public Safety Officers Procedural Bill of Rights Act.
Defendants again demurred, arguing that plaintiffs had failed to identify any
statute allegedly violated by the conduct they had reported. Defendants argued that
while plaintiffs had reported a planned violation of the MOU, such a violation
constituted a mere personnel matter, not a violation of state or federal law on which
a whistleblowing cause of action could be based.
3
At the time of the complaint, that subdivision provided: “An employer may not
retaliate against an employee for disclosing information to a government or law
enforcement agency, where the employee has reasonable cause to believe that the
information discloses a violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.” (Lab. Code, fmr. § 1102.5,
subd. (b).) The statute has since been amended. For the purposes of this opinion, all
references to Labor Code section 1102.5 refer to the former statute.
5
After a hearing,4 the trial court sustained the demurrer without leave to amend,
on the basis that plaintiffs “failed to plead a violation of any state or federal statute, law,
rule or regulation which would make Labor Code [§] 1102.5 applicable. [¶] Plaintiff[s]
never participated in a protected act and therefore, cannot substantiate a claim for
violation of Labor Code [§] 1102.5.”
Judgment was entered accordingly. Plaintiffs filed a timely notice of appeal.
ISSUE ON APPEAL
On appeal, plaintiffs decline to argue that their reports of Captain Hernandez’s
planned violation of the MOU constituted protected acts sufficient to trigger the
application of Labor Code section 1102.5, subdivision (b). Instead, they argue that their
protected act consisted of their purported report to Deputy Chief Perez that
Captain Hernandez had threatened to retaliate against them for exercising their union
rights, itself a violation of the MMBA. However, plaintiffs’ complaint fails to allege
they made such a report. At oral argument on appeal, plaintiffs represented that they
could, in fact, allege in good faith that they specifically reported to Deputy Chief Perez
that Captain Hernandez had threatened to retaliate against them for exercising their
union rights. Defendants correctly conceded that, if the plaintiffs could amend their
complaint in that manner, it would be sufficient to state a cause of action. As plaintiffs
4
There was no reporter at the hearing and no reporter’s transcript has been
prepared. The plaintiffs made no effort to obtain a settled statement in lieu of reporter’s
transcript on appeal. (Cal. Rules of Court, rule 8.137.) In the absence of a reporter’s
transcript of the hearing on demurrer, we make all reasonable inferences in favor of the
trial court’s ruling. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784,
1794.)
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have, to this point, only been given one opportunity to amend their complaint, and have
indicated an ability to amend to state a cause of action, we conclude that leave to amend
should be granted. We therefore reverse.
DISCUSSION
1. Standard of Review
“In reviewing the sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. ‘We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.] We also consider matters which may be judicially noticed.’ [Citation.]
Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we determine whether
the complaint states facts sufficient to constitute a cause of action. [Citation.] And
when it is sustained without leave to amend, we decide whether there is a reasonable
possibility that the defect can be cured by amendment: if it can be, the trial court has
abused its discretion and we reverse; if not, there has been no abuse of discretion and
we affirm. [Citations.] The burden of proving such reasonable possibility is squarely
on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To meet
[the] burden of showing abuse of discretion, the plaintiff must show how the complaint
can be amended to state a cause of action. [Citation.] However, such a showing need
not be made in the trial court so long as it is made to the reviewing court.”
(William S. Hart Union High School Dist. v. Regional Planning Com. (1991)
226 Cal.App.3d 1612, 1621.)
7
2. Whistleblower Retaliation
Labor Code “section 1102.5(b) protects an employee from retaliation by his
employer for making a good faith disclosure of a violation of federal or state law.
[Citations.] A report made by an employee of a government agency to his employer is
a disclosure of information to a government or law enforcement agency pursuant
to . . . section 1102.5(b). [Citations.] ‘This provision reflects the broad public policy
interest in encouraging workplace whistleblowers to report unlawful acts without
fearing retaliation.’ [Citation.]” (Hager v. County of Los Angeles (2014)
228 Cal.App.4th 1538, 1548.)
“ ‘To establish a prima facie case for whistleblower liability, a plaintiff must
show that he or she was subjected to adverse employment action after engaging in
protected activity and that there was a causal connection between the two. [Citation.]’
[Citation.] Protected activity is a disclosure of or opposition to ‘a violation of state or
federal statute, or a violation or noncompliance with a state or federal rule or
regulation.’ [Citation.] In other words, ‘[s]ection 1102.5 of the Labor Code requires
that to come within its provisions, the activity disclosed by an employee must violate
a federal or state law, rule or regulation. [Citation.]’ [Citation.]” (Edgerly v. City of
Oakland (2012) 211 Cal.App.4th 1191, 1199.) To constitute a protected disclosure, the
employee must have had reasonable cause to believe that the information reported
disclosed such a violation. (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th
809, 821-822.)
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In this case, there is no dispute as to whether plaintiffs alleged an adverse
employment action and a causal connection. The sole issue of dispute is whether
plaintiffs alleged any report that constituted protected activity.
3. Protected Activity
Before the trial court, much of the dispute surrounded reports of a possible
MOU violation, and whether such a report constituted protected activity. The trial court
concluded that it did not, and plaintiffs do not, on appeal, argue otherwise.5 Instead,
plaintiffs argue that Captain Hernandez “explicitly threatened retaliation” for going to
the Union, and such a threat is itself a violation of the MMBA. (Gov. Code, § 3506.5,
subd. (a).)6 Plaintiffs then argue that reporting that threat to Deputy Chief Perez
constituted protected activity under Labor Code section 1102.5, subdivision (b).
However, plaintiffs did not allege any such report to Deputy Chief Perez in their
operative pleading. We return to the language of the first amended complaint. It
alleges that, after Mike B. complained to the Union, Captain Hernandez met with
19 ISU members and made comments which were “perceived as threats and a warning
5
They are wise to not pursue this argument. While the MMBA authorizes the
creation of MOUs, MOUs are enforceable contracts (City of Los Angeles v. Superior
Court (2013) 56 Cal.4th 1086, 1092-1093); they do not rise to the level of statutes.
Thus, a violation of an MOU is not a statutory violation, and reporting such a violation
is not a protected act. Moreover, internal reports regarding personnel matters are not
considered to be protected acts. (Mueller v. County of Los Angeles, supra,176 Cal.App.4th at p. 822; Patten v. Grant Joint Union High School District (2005)
134 Cal.App.4th 1378, 1384-1385.)
6
Pursuant to Government Code section 3506.5, subdivision (a), a public agency
shall not “[i]mpose or threaten to impose reprisals on employees, to discriminate or
threaten to discriminate against employees, or otherwise to interfere with, restrain, or
coerce employees because of their exercise of rights [under the MMBA].”
9
of the retaliation to come.” It then alleges as follows: “In or around July 2011, Deputy
Chief Mark Perez held a meeting at Commerce Casino with all members of ISU,
including Plaintiffs Greg G., Mike B., Juan M., and Jesse S. The meeting concerned all
of the on-going issues within ISU at the time, including those listed above. After the
meeting, Deputy Chief Perez, being aware of the retaliation and the violation of law, did
nothing to change it or stop it. Thus, he ratified and condoned it.” Plaintiffs merely
allege that they were present at a meeting with Deputy Chief Perez which “concerned
all of the on-going issues within ISU at the time, including those listed above.” At no
time do plaintiffs allege that anyone at the meeting, much less plaintiffs themselves,
reported to Deputy Chief Perez that Captain Hernandez threatened retaliation for the
Union complaint.
At oral argument on appeal, plaintiffs indicated that, if granted leave, they could
amend their complaint in good faith to specifically allege that plaintiffs reported to
Deputy Chief Perez that Captain Hernandez had threatened to retaliate against them for
going to the Union. If so amended, their complaint would allege that they reported
a violation of Government Code section 3506.5, subdivision (a), and, in turn, it would
state a cause of action under Labor Code section 1102.5, for the alleged retaliatory acts
taken as a result of that report. Defendants did not disagree with this analysis.
10
Although plaintiffs made this argument for the first time on appeal,7 it is not too
late to do so at this time. Until now, plaintiffs have received only a single opportunity
to amend their complaint, and, at that time, their attention was drawn to their failure to
allege a statute, the violation of which they reported. It was not until this appeal that
plaintiffs’ attention was drawn to the fact that their complaint did not explicitly allege
that they reported a violation of law to Deputy Chief Perez. As such, we conclude
plaintiffs should be given an opportunity to amend their complaint to do so.
7
Plaintiffs’ opposition to the demurrer included boilerplate language requesting
leave to amend, but did not indicate the manner in which plaintiffs could amend to cure
the defects in their pleading.
11
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order
sustaining the demurrer without leave to amend, and to enter a new and different order
sustaining the demurrer with leave to amend. Each side is to bear its own costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUSSMAN, J.*
WE CONCUR:
KITCHING, Acting P. J.
ALDRICH, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
12