Irvin v. City of Los Angeles CA2/2 ( 2023 )

Filed 5/23/23 Irvin v. City of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
TERESA IRVIN, B315165
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. BC690975)
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jon R. Takasugi, Judge. Reversed and
remanded.
Law Offices of Gregory W. Smith, Gregory W. Smith;
Koron & Podolsky, Boris Koron, Daniel J. Podolsky; Benedon &
Serlin, Douglas G. Benedon and Judith E. Posner for Plaintiff
and Appellant.
Hydee Feldstein Soto, City Attorney, Scott Marcus, Chief
Assistant City Attorney, Sara Ugaz and Shaun Dabby Jacobs,
Deputy City Attorneys, for Defendant and Respondent.
______________________________
Plaintiff and appellant Teresa Irvin (Irvin) filed this action
against her employer, defendant and respondent City of
Los Angeles (City), for whistleblower retaliation in violation of
Labor Code section 1102.5.1 Relying on the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792 (McDonnell Douglas) to analyze Irvin’s claim, the
City moved for summary judgment. The trial court likewise
applied the McDonnell Douglas framework and granted the City’s
motion. Irvin appealed.
While this appeal was pending, the California Supreme
Court issued its decision in Lawson v. PPG Architectural
Finishes, Inc. (2022) 12 Cal.5th 703 (Lawson), which clarified
that section 1102.6—not McDonnell Douglas—“provides the
governing framework for the presentation and evaluation of
whistleblower retaliation claims brought under section 1102.5.”
(Lawson, supra, at p. 718.)
Because its moving papers did not employ the correct legal
framework, the City failed to meet its burden on summary
judgment and its motion should have been denied. We therefore
reverse the judgment and remand for further proceedings.
1 All further statutory references are to the Labor Code
unless otherwise indicated.
2
BACKGROUND
I. The Complaint
Irvin, a Los Angeles Police Department detective, filed a
complaint asserting a single cause of action against the City for
retaliation in violation of section 1102.5. Irvin alleged that her
commanding officer “falsif[ied] . . . time-sheets . . . by claiming
hours worked while conducting personal errands.” Specifically,
the commanding officer “would routinely go home to cook and/or
take care of her ‘family’ of feral cats” and would also require other
officers to care for the cats during work hours. Irvin alleged that
when she reported this “unlawful conduct” she was subjected to
retaliation, including receiving numerous write-ups and being
transferred to another division.
II. Summary Judgment
A. The City’s motion
The City moved for summary judgment, contending that
“the burden[-]shifting analysis of McDonnell Douglas” applied.
The City explained that framework as follows: “[Irvin] carries
the initial burden of establishing a prima facie case by showing
that: (1) she engaged in protected activity; (2) the City subjected
her to an adverse employment action; and (3) there exists a
causal link between the protected activity and the adverse
employment action. [Citation.] Assuming a plaintiff can
establish a prima facie case, the defendant employer can then
produce evidence of a legitimate non-retaliatory reason for the
alleged adverse employment action, which the plaintiff can only
rebut with ‘substantial evidence of pretext.’ [Citation.]” (Italics
omitted.)
The City argued that Irvin could not establish a prima facie
case of retaliation because (a) she did not suffer an adverse
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employment action, and (b) there was no causal link between her
protected activity and the employment action. Alternatively, if
Irvin had made a prima facie case, the City contended that it was
still entitled to summary judgment because its actions were
taken for legitimate and nonretaliatory reasons and that Irvin
could not meet her burden of demonstrating that those reasons
were pretextual.
B. Irvin’s opposition
Irvin opposed the City’s motion, also following the
McDonnell Douglas framework. Addressing the arguments
raised by the City, Irvin contended that triable issues of material
fact existed as to whether she could make a prima facie case of
retaliation. She also argued that sufficient circumstantial
evidence established that the City’s proffered legitimate business
reasons for its employment actions were pretextual.
C. The City’s reply
The City filed a reply, which again employed the
McDonnell Douglas framework.
D. The trial court’s order
After entertaining oral argument, the trial court granted
the City’s motion for summary judgment Although the court did
not explicitly cite McDonnell Douglas, it analyzed Irvin’s claim
under that framework.
The trial court found that Irvin, having presented evidence
that an administrative transfer could limit her opportunities for
future promotion, had made a prima facie showing that she had
suffered an adverse employment action.2 The court also found
2 The trial court found that Irvin had not met her burden of
showing that the issuance of comment cards constituted an
adverse employment action, as her “evidence d[id] not support a
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that Irvin had made a prima facie showing, based on temporal
proximity, that a causal nexus existed between her protected
activity and the adverse employment action.
The City, however, had met its burden of showing that it
had a legitimate, nonretaliatory reason for transferring Irvin—
“to be given a ‘fresh start with new supervisors and coworkers.’”
The trial court then explained that the burden shifted to
Irvin to show that the City’s “reason was a pretext”—that is,
Irvin’s “transfer was at least in part motivated by the fact that
she had previously complained about improper practices by [her
commanding officer].” The court concluded that Irvin had failed
to meet this burden and therefore granted summary judgment for
the City.
III. Judgment; appeal
The trial court subsequently entered judgment in favor of
the City. This timely appeal ensued.
DISCUSSION
I. Standard of Review
Summary judgment is properly granted where “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.” (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment bears the burden of
showing that at least one element of a cause of action “cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “To carry its
initial burden when the motion is directed to the plaintiff’s case
reasonable inference that the issuance of four comment cards is
reasonably likely to adversely and materially affect an employee’s
opportunity for advancement in his or her career.”
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rather than an affirmative defense, a defendant must present
evidence that either ‘conclusively negate[s] an element of the
plaintiff’s cause of action’ or ‘show[s] that the plaintiff does not
possess, and cannot reasonably obtain,’ evidence necessary to
establish at least one element of the cause of action. [Citation.]
Only after the defendant carries that initial burden does the
burden shift to the plaintiff ‘to show that a triable issue of one or
more material facts exists as to the cause of action or a defense
thereto.’ [Citation.]” (Luebke v. Automobile Club of Southern
California (2020) 59 Cal.App.5th 694, 702–703.)
We review a trial court’s order granting summary judgment
de novo, liberally construing the evidence in support of the party
opposing summary judgment and resolving doubts concerning the
evidence in that party’s favor. (Gonzalez v. Mathis (2021)
12 Cal.5th 29, 39.)
II. Framework for Adjudicating Section 1102.5 Claims
Section 1102.5 is a whistleblower statute that, as relevant
here, “prohibits an employer from retaliating against an
employee for sharing information the employee ‘has reasonable
cause to believe . . . discloses a violation of state or federal
statute’ or of ‘a local, state, or federal rule or regulation’ with a
government agency, with a person with authority over the
employee, or with another employee who has authority to
investigate or correct the violation. (§ 1102.5, subd. (b).)”
(Lawson, supra, 12 Cal.5th at p. 709.)
As first enacted in 1984, section 1102.5 “supplied only a set
of substantive protections against whistleblower retaliation,
unaccompanied by any provision setting forth procedures for
proving retaliation. [Citation.]” (Lawson, supra, 12 Cal.5th at
p. 709.) In 2003, the Legislature filled this gap by adding
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section 1102.6. (Lawson, supra, at p. 709.) Section 1102.6
provides: “In a civil action or administrative proceeding brought
pursuant to Section 1102.5, once it has been demonstrated by a
preponderance of the evidence that an activity proscribed by
Section 1102.5 was a contributing factor in the alleged prohibited
action against the employee, the employer shall have the burden
of proof to demonstrate by clear and convincing evidence that the
alleged action would have occurred for legitimate, independent
reasons even if the employee had not engaged in activities
protected by Section 1102.5.”
After the enactment of section 1102.6, some courts
continued to apply the three-part McDonnell Douglas burden-
shifting framework to evaluate section 1102.5 claims. (See
Lawson, supra, 12 Cal.5th at pp. 707, 711–712.) “Under that
approach, the employee must establish a prima facie case of
unlawful discrimination or retaliation. [Citation.] Next, the
employer bears the burden of articulating a legitimate reason for
taking the challenged adverse employment action. [Citation.]
Finally, the burden shifts back to the employee to demonstrate
that the employer’s proffered legitimate reason is a pretext for
discrimination or retaliation. [Citation.]” (Id. at p. 708.)
Last year, our Supreme Court held “that section 1102.6,
and not McDonnell Douglas, supplies the applicable framework
for litigating and adjudicating section 1102.5 whistleblower
claims.” (Lawson, supra, 12 Cal.5th at p. 712.) Section 1102.6
first places the burden on the employee to establish, by a
preponderance of the evidence, “that the employee’s protected
whistleblowing was a ‘contributing factor’ to an adverse
employment action.” (Lawson, supra, at p. 712.) This burden
may be satisfied “even when other, legitimate factors also
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contributed to the adverse action. [Citations.]” (Id. at pp. 713–
714.) If the employee makes that threshold showing, the burden
shifts to the employer to demonstrate, by clear and convincing
evidence, “that the alleged adverse employment action would
have occurred ‘for legitimate, independent reasons’ even if the
employee had not engaged in protected whistleblowing activities.
[Citation.]” (Id. at p. 712.)
In contrast to the McDonnell Douglas framework, “[u]nder
section 1102.6, a plaintiff does not need to show that the
employer’s nonretaliatory reason was pretextual. Even if the
employer had a genuine, nonretaliatory reason for its adverse
action, the plaintiff still carries the burden assigned by statute if
it is shown that the employer also had at least one retaliatory
reason that was a contributing factor in the action.” (Lawson,
supra, 12 Cal.5th at pp. 715–716.)
III. The City Did Not Satisfy Its Burden on Summary Judgment
The parties agree that, as held in Lawson, section 1102.6
provides the proper framework for analyzing section 1102.5
whistleblower retaliation claims. The parties disagree, however,
on how this rule affects the outcome of this appeal. Relying on
Scheer v. Regents of the University of California (2022)
76 Cal.App.5th 904 (Scheer), Irvin urges us to reverse the grant
of summary judgment on the ground that the City’s moving
papers failed to employ the framework mandated by
section 1102.6. The City asks us to follow instead the example
set in Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th
367 (Vatalaro) and substantively review and affirm the summary
judgment using the section 1102.6 framework in the first
instance.
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In Scheer, the employer successfully moved to summarily
adjudicate a section 1102.5 cause of action utilizing the
McDonnell Douglas framework. (Scheer, supra, 76 Cal.App.5th
at p. 914.) Lawson was issued while the plaintiff’s appeal was
pending. (See Scheer, supra, at pp. 912–913.) Division Three of
the Second District Court of Appeal reversed, explaining that
because the employer’s moving papers in the trial court “failed to
employ the applicable framework prescribed by . . .
section 1102.6,” the employer had not met its initial burden on
summary adjudication and its motion should have been denied.
(Scheer, supra, at p. 914.) Rejecting the employer’s suggestion
that it could review the grant of summary adjudication and
affirm using the proper framework, the Scheer court stated: “Our
role as an appellate court is to review the trial court’s order on
the motion the [employer] actually made in the trial court, not to
rule in the first instance on whether the [employer is] entitled to
summary adjudication on the [section 1102.5] cause of action in
light of the . . . section 1102.6 framework.” (Scheer, supra, at
p. 915.)
In contrast, in Vatalaro, the Third District Court of Appeal
affirmed summary judgment in an action brought under
section 1102.5 even though the employer had pointed to the
wrong standard in its motion. (Vatalaro, supra, 79 Cal.App.5th
at pp. 371, 383–384.) The Vatalaro court “conclude[d] that the
[employer]’s undisputed evidence would require a reasonable
factfinder to find it ‘highly probable’ that the” adverse
employment action “would have occurred for legitimate,
independent reasons even if” the employee had not engaged in
allegedly protected conduct. (Vatalaro, supra, at p. 386, italics
added.) Thus, the employer had “supplied sufficient evidence to
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satisfy the more demanding standard under section 1102.6.”
(Vatalaro, supra, at p. 384.)
Under the circumstances present here, we elect to follow
Scheer. Because the City’s “moving papers in the trial court
failed to apply the . . . section 1102.6 framework, [the City] failed
to meet [its] threshold burden” and the motion for summary
judgment should have been denied. (Scheer, supra,
76 Cal.App.5th at p. 915; see also Ryan v. Real Estate of Pacific,
Inc. (2019) 32 Cal.App.5th 637, 642 [“If the defendant fails to
make [its] initial showing [of entitlement to summary judgment],
it is unnecessary to examine the plaintiff’s opposing evidence and
the motion must be denied”].)
Basic principles of fairness also support this approach.
“Where a remedy as drastic as summary judgment is involved,
due process requires a party be fully advised of the issues to be
addressed and be given adequate notice of what facts it must
rebut in order to prevail. [Citation.]” (San Diego Watercrafts,
Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) We
cannot foreclose the possibility that Irvin might have presented
different evidence or made different arguments in her opposing
papers had the City applied the proper legal framework below.
“Now that Lawson has clarified the law,” the City is not
precluded on remand from moving for summary judgment
utilizing the proper section 1102.6 framework. (Scheer, supra,
76 Cal.App.5th at p. 915.)
All other issues are moot.
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DISPOSITION
The judgment is reversed. On remand, the City may move
for summary judgment in accordance with the framework set
forth in section 1102.6. The parties are to bear their own costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.*
KWAN
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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