Saenz v. City of San Bernardino CA4/1 ( 2023 )

Filed 6/30/23 Saenz v. City of San Bernardino CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GARY SAENZ, D080378
Plaintiff and Appellant,
v. (Super. Ct. No. CIVDS2003802)
CITY OF SAN BERNARDINO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Gilbert G. Ochoa, Judge. Affirmed in part, reversed in part.
Wagner Zemming Christensen, Daniel Moussatche, and Dennis E.
Wagner, for Plaintiff and Appellant.
Lynberg & Watkins, S. Frank Harrell, and Jonathan C. Bond, for
Defendant and Respondent.
INTRODUCTION
Gary Saenz was elected San Bernardino city attorney in November
2015. In November 2016, the city council changed its charter to, among other
things, eliminate the position of city attorney. The position’s elimination was
scheduled to become effective at the end of Saenz’s term, March 5, 2020.
While in office, Saenz provided advice and counsel to city councilmembers,
staff, and the mayor, John Valdivia, a former councilmember elected to the
Office of Mayor in 2018. In August 2018, the city council engaged an outside
law firm for municipal legal services and city attorney services.
Saenz and the mayor clashed, and Saenz repeatedly advised the council
against following the mayor’s requests. The mayor and his chief of staff told
Saenz that Saenz should not criticize the mayor and that Saenz was
overstepping his role as city attorney. Saenz ignored the mayor and his chief
of staff. In June 2019, the mayor created an ad hoc economic development
committee, and it recommended the city reduce the city attorney’s salary
beginning July 1, 2019. The council voted to reduce the salary. Saenz’s
anticipated salary reduction was reversed following the issuance of a writ of
mandate.
In February 2020, Saenz filed suit against the City of San Bernardino
(San Bernardino) and the mayor, alleging whistleblower retaliation in
violation of Labor Code1 section 1102.5, subdivision (b) (1102.5(b)) and
seeking declaratory relief. The court granted San Bernardino’s demurrer
with leave to amend the first cause of action and without leave to amend the
cause of action for declaratory relief. San Bernardino then demurred to
Saenz’s first amended complaint (FAC), and the court sustained it with leave
to amend. In Saenz’s second amended complaint (SAC), he added a cause of
action for whistleblower retaliation under section 1102.5, subdivision (c). San
Bernardino again demurred, and the court granted the demurrer without
leave to amend.
On appeal, Saenz contends the court erred by improperly applying a
heightened pleading standard to the SAC and by rejecting the addition of the
1 Statutory references are to the Labor Code unless otherwise specified.
2
second cause of action. We conclude the court identified the appropriate
pleading standard, but in light of the Supreme Court’s holding in People ex
rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, 721 (Kolla’s), the
trial court erred in its application. Thus, we reverse the judgment dismissing
the first cause of action without leave to amend. We also conclude the court
did not abuse its discretion by rejecting the additional cause of action.
Accordingly, we affirm that portion of the judgment.
BACKGROUND AND PROCEDURAL FACTS
Saenz filed suit against San Bernardino and its mayor on February 4,
2020. In his complaint, Saenz alleged causes of action against San
Bernardino for retaliation for whistleblowing in violation of section 1102.5(b)
and against the mayor and San Bernardino for declaratory relief. San
Bernardino and the mayor demurred, arguing the complaint failed to state a
cause of action (Code Civ. Proc., § 430.10) and inadequately specified which
causes of action were stated against which defendants (id., subd. (f)). The
court sustained the demurrer as to the first cause of action, with leave to
amend. It also sustained the demurrer as to the second cause of action
without leave to amend.
Saenz filed an FAC containing a single cause of action against San
Bernardino: retaliation for whistleblowing activities in violation of
section 1102.5(b). San Bernardino again demurred, arguing Saenz failed to
allege sufficient facts to constitute a cause of action. (Code Civ. Proc., §
430.10, subd. (e).) San Bernardino also argued that the first cause of action
was barred by legislative immunity. The court sustained the demurrer with
leave to amend.
Saenz then filed an SAC, the operative complaint. It alleges two causes
of action: retaliation for whistleblowing activities in violation of
3
section 1102.5(b) and retaliation for whistleblowing activities in violation of
section 1102.5, subdivision (c).2
In the SAC, Saenz alleges that he was elected in a recall election of the
previous city attorney in November 2013 and returned to office by voters in
November 2015. His four-year term was scheduled to continue through the
first Monday of March 2020, in accordance with the city charter.
In November 2016, the city council changed its charter, and its newly
adopted charter eliminated the position of city attorney, to become effective
at the conclusion of the term of office. In 2018, city council member Valdivia
was elected to the Office of Mayor.
In August 2018, San Bernardino contracted with an outside law firm
for municipal legal services and city attorney services. The contract specified
that Saenz would remain the elected city attorney until March 5, 2020, at
which time an attorney from the outside law firm would serve as San
Bernardino’s city attorney.
While in office, Saenz counseled, advised, and warned elected officials
and staff when they inadvertently or intentionally violated the city charter or
the Ralph M. Brown Act (Brown Act), Government Code section 54950 et seq.
He raised issues with “all members of the City Council” about the specificity
of their meeting agendas’ compliance with the Brown Act and told them they
risked having their actions overturned for failure to comply with that law.
Some employees ignored this advice, there were some “recalcitrant members
of the City Council,” and “the City Council beg[an] to undermine and usurp
the authority of the City Attorney. . . .”
2 The SAC includes factual allegations regarding retaliation against the
city clerk, including that the city clerk reported allegedly illegal activity by
the mayor’s staff to Saenz. We do not include details of these allegations
because the appeal before us does not regard the city clerk.
4
Saenz told the city council at one of the first meetings after the mayor
assumed office that increasing the mayor’s staff size from three to nine
employees could violate the city charter or a bankruptcy court order, and
Saenz once criticized the mayor for attempting to call a special meeting to
amend the municipal code. Saenz also told councilmembers from the fourth
and seventh wards that the mayor was illegally attempting to remove the city
manager so he could replace her with someone who was more subservient to
the mayor.
In a private meeting, the mayor and his chief of staff told Saenz that
they “would go to war” if Saenz continued to advise the city council against
the mayor’s requests. The chief of staff also told Saenz not to criticize the
mayor during open session meetings. The mayor told the city attorney that
Saenz was overstepping his role as city attorney. Saenz interpreted these
comments to be instructions not to perform his duties, and he ignored them.
Saenz stated to the entire city council at a special meeting in March
2019 (the “Budget Study Workshop”) that the meeting had not been properly
agendized and violated the Brown Act, but the meeting was “conducted,
nonetheless by the Mayor and City Council members.” The mayor disagreed
with Saenz and pulled aside Saenz to say that Saenz was “out of line.” Saenz
described the mayor and his chief of staff as “angry and hostile” to him.
The SAC also alleges that the mayor “frequently and continuously for
months” harassed Saenz by saying Saenz was “out of line,” and by demanding
Saenz cease providing the city council advice contrary to the mayor’s
proposals. It further alleges that the mayor “allowed his staff” to harass
Saenz, and that some employees and city councilmembers began a campaign
to retaliate against him. Plus, “certain members” of the city council began to
“undermine and usurp the authority” of the city attorney. The SAC alleges
5
that Saenz “spoke out about the illegal and unethical activities within the
city government, including illegal treatment of employees, hostile work
environment, violations of the city charter and the Brown Act.”
In June 2019, after the mayor asked if Saenz would agree to reduce his
salary, the mayor created an ad hoc economic development committee
comprised of three councilmembers. At a council meeting, the committee
recommended the city reduce the city attorney’s salary beginning July 1,
2019. Saenz told the council the action was illegal, and the mayor’s chief of
staff, also an attorney, disagreed. The council voted to reduce the salary,
effective July 1, 2019, from $184,000 to $100,000 annually. In July 2019,
Saenz successfully petitioned for writ of mandate against San Bernardino
contesting the expected pay reduction. San Bernardino accepted the
judgment.
The SAC includes two causes of action: retaliation in response to
whistleblowing, in violation of section 1102.5(b), and retaliation in response
to the refusal to comply with illegal orders, in violation of section 1102.5,
subdivision (c). The second cause of action was not in the original complaint
or the FAC.
San Bernardino demurred to the SAC for failure to allege sufficient
facts to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) It
also argued both causes of action were barred by legislative immunity, and
the second cause of action was barred because Saenz was not granted leave to
amend by adding a new cause of action. After a hearing on the matter, the
court granted the demurrer without leave to amend.
In its ruling, the superior court concluded that the SAC lacked the
required particularity. It also explained that because Saenz reported the
alleged illegal activity to the wrongdoer, it did not constitute an actionable
6
disclosure under section 1102.5(b). The court separately concluded the newly
added second cause of action exceeded the scope of the leave it had granted.
The court entered judgment in San Bernardino’s favor, and Saenz
timely appealed. While the appeal was pending, the Supreme Court issued
its opinion in Kolla’s, and we invited the parties to submit supplemental
briefs about the impact of that opinion, if any, on the judgment here.
DISCUSSION
A. Legal Principles
“On appeal from an order of dismissal after an order sustaining a
demurrer, the standard of review is de novo: we exercise our independent
judgment about whether the complaint states a cause of action as a matter of
law.” (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439.)
To establish adequate pleading, a plaintiff must show the facts pleaded are
“sufficient to establish every element of that cause of action.” (Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) In making our
determination, we admit all facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 967.) We also read allegations “in the
light most favorable to the plaintiff and liberally construed with a view to
attaining substantial justice among the parties.” (Venice Town Council v.
City of L.A. (1996) 47 Cal.App.4th 1547, 1557.) We review the trial court’s
refusal to grant leave to amend the pleading under the abuse of discretion
standard. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126
(Zelig).)
Section 1102.5(b) prohibits an employer from retaliating against an
employee for disclosing a violation of law to a government or law enforcement
agency, or to a person with authority to investigate, discover, or correct the
violation or noncompliance. (See also Kolla’s, supra, 14 Cal.5th at
7
pp. 720, 723-724.) To establish a prima facie claim for retaliation, an element
of section 1102.5(b), a “plaintiff ‘must show (1) [he or ]she engaged in a
protected activity, (2) [his or] her employer subjected [the plaintiff] to an
adverse employment action, and (3) there is a causal link between the two
[actions].’ [Citation].” (McVeigh v. Recology San Francisco (2013) 213
Cal.App.4th 443, 468.) A government employee’s report of legal violation to
his or her own public agency meets this requirement. (See Jaramillo v.
County of Orange (2011) 200 Cal.App.4th 811, 825-827.)
B. Statutory Liability Requires Pleading with Particularity
The parties disagree about whether the court properly applied the
pleading standards. Saenz argues he was required only to set forth the
“ ‘essential facts of his case with reasonable precision and with particularity
sufficiently specific to acquaint the defendant of the nature, source, and
extent of his cause of action.” (Goldstein v. Healy (1921) 187 Cal. 206, 210.)
He maintains that Lopez v. Southern California Rapid Transit District (1985)
40 Cal.3d 780 (Lopez) “stands for the proposition that common law causes of
action against a public entity are barred by the Government Tort Claims
Act.[3] A claim must be based on a statutory liability and the existence of a
statutory liability must be ple[aded] with particularity,” but when there is no
“uncertainty of liability,” there is no heightened pleading standard. Thus, he
contends the court incorrectly expected him to “provide the utmost detail to
every facet of the cause of action” when it should have applied “[a] traditional
liberal reading of the complaint” so that he could proceed with discovery to
3 Government Code section 815 provides that unless otherwise provided
by statute, a public entity is not liable for an injury, regardless of whether it
arises out of an act or omission of the public entity, a public employee, or
another person, and liability is subject to statutory immunity of the public
entity.
8
gather facts that San Bernardino possessed. San Bernardino argues that
because it is a government entity being sued under the Tort Claims Act for
statutory liability, all elements of the cause of action must be pleaded with
particularity.
Lopez addressed a negligence cause of action in which the duty was
defined by statute. (Lopez, supra, 40 Cal.3d at p. 795.) The primary issue
was whether a government bus company owed a duty of care to protect
passengers from violence by other passengers. The Supreme Court explained
that the duty at issue was established by Civil Code section 2100, which
requires a common carrier to “do all that human care, vigilance, and foresight
reasonably [could] do under the circumstances.” (Lopez, at p. 785.) The court
recognized that negligence generally does not need to be pleaded with
particularity, including the precise act or omission giving rise to the breach of
duty, but “statutory causes of action must be pleaded with particularity.” (Id.
at p. 795.) Accordingly, the facts related to the statutory duty had to be
pleaded under the heightened pleading standard. It explained: “ ‘[T]o state a
cause of action against a public entity, every fact material to the existence of
its statutory liability must be pleaded with particularity.’ [Citations.]”
(Ibid.)
Although Lopez was focused on the elements of duty and breach, we do
not understand the case to mean that the heightened pleading standard is
limited to those elements, as Saenz appears to contend. For example, in
State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339 (State
Dept.), the Supreme Court discussed causation. There, the plaintiff sued for
negligence and negligence per se following the parole of an inmate who raped
and murdered the plaintiff’s sister. The complaint alleged that the hospital
had a mandatory duty under the Welfare and Institutions Code to employ
9
two evaluators to review the inmate’s file before he could be considered for
parole, but only one evaluator completed the review. (Id. at p. 346.) The
defendants demurred, contending the plaintiff could not, as a matter of law,
establish that the breach of duty was the proximate cause of the victim’s
death. (Id. at p. 347.) The Supreme Court agreed. (Id. at p. 357.)
Though the majority did not detail the pleading standard, in her
concurring opinion, Justice Werdegar explained that because the causal
connection was not plainly apparent and “because plaintiff’s cause of action
under Government Code section 815.6 is a statutory one requiring every
material fact to be pleaded with particularity [Citations], plaintiff bore the
burden of pleading with particularity each fact necessary to show how the
agency’s alleged breach caused her injury . . . . [T]o the extent the complaint
included only conclusory or inferential claims of factual causation, rather
than particularized allegations of fact, it was subject to demurrer.” (State
Dept., supra, 61 Cal.4th at p. 358 (conc. opn. of Werdegar, J.).)
Further, to the extent Saenz contends that specificity is only required
where there is uncertainty regarding one of the elements of the tort, we
disagree. Saenz directs us to Landau v. Salam (1971) 4 Cal.3d 901 (Landau)
to explain that specificity is required, at least in negligence causes of action,
when there is “reasonable uncertainty.” Landau was a personal injury suit in
which the plaintiff alleged he was injured as the result of two separate
incidents, one involving negligent driving of an automobile and the other
involving negligent maintenance of property nearly four months later. (Id. at
p. 903.) The Supreme Court explained that in that circumstance, a plaintiff
could not simply allege he was uncertain about which event caused the
injury; he must plead specific facts to justify joining the two defendants,
including “the facts of the two accidents, the nature of the injuries, and the
10
interrelationship of the injuries.” (Id. at p. 909.) That level of specificity
would demonstrate that he was reasonably uncertain “as to the respective
liabilities of the defendants.” (Ibid.) Saenz argues that there is no
uncertainty regarding any of the elements giving rise to liability here, so he
does not need to plead with particularity. But Landau does not hold that
specificity is not required in pleadings based on statutory liability against
government entities. It simply explains that there are circumstances when
more specific facts are required regardless of the defendant’s status.
We recognize that facts demonstrating sufficient particularity may
depend on the individual case. Even under a heightened pleading standard,
plaintiffs are not expected to plead facts beyond the scope of their knowledge
in the absence of discovery. For example, in C.A. v. William S. Hart Union
High School District (2012) 53 Cal.4th 861 (C.A.), the Supreme Court
considered whether vicarious liability for negligent hiring, retention, and
supervision is a legally viable theory and concluded it is. (Id. at p. 865.) The
plaintiff alleged that the school district failed to properly hire, train, and
supervise a school counselor who engaged in sexual activities with the
plaintiff, a minor student. (Id. at p. 872.) The plaintiff alleged that the
district failed to provide reasonable supervision because the district had no
system or procedure for investigating and supervising personnel to prevent
sexual harassment and abuse. (Ibid.) The complaint did not identify by
name the district employees responsible, and the court commented that it
could not say from the face of the complaint that the district had no
supervisory or administrative employees responsible for hiring, training,
supervising, disciplining, or terminating a counselor. (Ibid.)
The Supreme Court explained that “Lopez does not stand for the
proposition that a plaintiff must specifically plead, before undertaking
11
discovery, the identity of a government employee whose alleged negligence is
made the basis for vicarious liability under section 815.2, and we doubt such
an impracticable rule would be consistent with the legislative intent in
enacting that statute.” (C.A., supra, 53 Cal.4th at p. 872; see also Roe v.
Hesperia Unified School Dist. (2022) 85 Cal.App.5th 13.) The court quoted
legislative commentary that explained that under Government Code
section 815.2, it would “ ‘not be necessary in every case to identify the
particular employee upon whose act the liability of the public entity is to be
predicated.’ ” (C.A., at p. 872.) Not only was the court’s discussion specific to
Government Code section 815.2, but it is not inconsistent with the rule that
“ ‘every fact material to the existence of [a public entity’s] statutory liability
must be pleaded with particularity.’ ” (Lopez, supra, 40 Cal.3d 795.) It
simply concluded that in that action the identity of the government employee
was not material to demonstrating liability. In other words, where a plaintiff
does not know the identity of a specific employee whose action or inaction is
the basis of a vicarious liability claim, the plaintiff may not be required to
name the employee.4
Other cases have similarly indicated that the specifics required to meet
the pleading burden depend on the circumstances. In Roger v. County of
Riverside (2020) 44 Cal.App.5th 510 (Roger), the plaintiff alleged a violation
of Title 42 United States Code section 1983. The complaint “alleged that
respondents had no procedure for accurately booking inmates who have
committed civil contempt, that they knew they had no such procedure, and
that these facts demonstrated” the training was inadequate enough to
4 The Supreme Court’s reference to the commentary language that it
would “ ‘not be necessary in every case’ ” also suggests there are instances in
which that detail is necessary. (C.A., at p. 872.)
12
implicate inmates’ civil rights. (Roger, at p. 533.) The court explained that
the plaintiff was required to plead facts with “ ‘ “ ‘reasonable precision,’ ” ’ ”
and it explained that the particularity required depended on the extent to
which the defendant needed detailed information. (Ibid.) The complaint
alleged there was no procedure for booking inmates who committed civil
contempt, and the lack of that procedure caused false charges against those
inmates. (Ibid.) “Those allegations were as specific as they could be at the
pleading stage, without the benefit of discovery” because the plaintiff was
“not privy to the details of respondents’ booking procedures. . . .” (Ibid.)
Thus, the court did not hold that there was no heightened pleading standard;
it concluded the standard had been met. As our court has previously
explained, “[t]he limited and statutory nature of governmental liability
mandates that claims against public entities be specifically pleaded.
[Citation.]” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.)
Saenz’s situation is not like the plaintiffs’ situations in C.A. or Roger,
where plaintiffs brought causes of action for negligence. In C.A. and Roger,
the plaintiffs needed discovery to discover factual details to support their
claims because their claims relied on policies and information outside the
scope of their personal knowledge. (C.A., supra, 53 Cal.4th at p. 872; Roger,
supra, 44 Cal.App.5th at p. 533.) In contrast here, Saenz’s whistleblower
cause of action is not based on government inaction or the existence of a
government policy about which he lacks personal knowledge. Saenz knows
what illegal conduct he observed; he knows to whom he reported that conduct
and when he reported it. He can identify what the specific adverse
employment action was, and he has knowledge about the temporal
relationship between the adverse action and his disclosure of illegal conduct.
13
Thus, Saenz could plead with particularity all the facts essential to the
statutory cause of action.
In his appellate briefs, Saenz explains that he “ple[aded] a cause of
action under Labor Code [section] 1102.5 and Labor Code [section] 1102.5
applies to public entities, therefore, public entities have statutory liability
under Labor Code [section] 1102.5. This is sufficient to meet the pleading
standards under Lopez.” Saenz argued in the trial court that the facts as
pleaded are sufficient to meet his burden, and he advances that argument on
appeal as well.5 Thus, we next consider whether the SAC complies with
Lopez.
C. The SAC Sufficiently Pleads Facts Essential to Statutory Liability with
Particularity
When the trial court applied the heightened pleading requirements
detailed in Lopez, it considered whether Saenz reported illegal activity to an
employer who was not the suspected wrongdoer, the rule identified in Mize-
Kurzman v. Marin Community College District (2012) 202 Cal.App.4th 832,
856-867 (disapproved of in Kolla’s, supra, 14 Cal.5th at p. 734.) Mize-
Kurzman reasoned that criticism delivered directly to a wrongdoer did not
further the purpose of the whistleblower statute because it did not encourage
disclosure to persons in positions to remedy the wrongdoing. (Mize-Kurzman,
at p. 859.) Kolla’s disapproves of Mize-Kurzman to the extent it excludes
from protection disclosures to wrongdoers of their unlawful conduct. (Kolla’s,
at p. 734.)
5 Saenz indicates in a footnote that he could amend the first cause of
action to plead he had a good faith belief that the city council could have
restrained the mayor or that they were not involved in the illegal activities.
14
In Kolla’s, the Supreme Court explained that the Legislature could
have believed the wrongdoers themselves were well positioned to correct their
own violations, and “that being confronted by an employee about violations
could motivate an employer to correct those violations.” (Kolla’s, supra, 14
Cal.5th at p. 729.) It also concluded that “whether or not such confrontation
leads to a remedy in a given case, providing employees with an internal
disclosure option and protecting those employees who disclose wrongdoing
directly to the wrongdoer further the purpose of whistleblower protection
laws.” (Ibid.) Thus, a whistleblower’s disclosure directly to a wrongdoer is
protected conduct under section 1102.5(b).
As San Bernardino points out, much of the SAC includes vague
allegations that do not meet the specificity requirements of Lopez, and many
allegations in the SAC emphasize the “internal personnel” battle going on
between the mayor and Saenz. For instance, the SAC alleges that Saenz
“spoke out about the illegal and unethical activities within the city
government, including illegal treatment of employees, hostile work
environment, violations of the city charter and the Brown Act.” These
allegations generally plead illegal conduct occurred, but they do not provide
facts to show what the illegal activity was, who engaged in the activity, or to
whom Saenz reported the conduct. Similarly, the SAC alleges that Saenz
criticized the mayor for attempting to remove the city manager so he could
replace her with someone who would be more subservient to the mayor, that
he reported that conduct to the councilmembers for the fourth and seventh
wards, and that he did so after the city manager was placed on a leave of
absence. These allegations do not identify what law the mayor violated, or
even if the mayor successfully engaged in the unlawful conduct, i.e., whether
15
the mayor removed the city manager. We note that unlike the plaintiffs in
C.A. and Roger, this missing information is within Saenz’s knowledge.
Yet, while the SAC is filled with vague allegations that do not meet the
requirements of Lopez, it nonetheless includes at least one allegation that is
sufficient—an allegation mentioned in the trial court’s order granting the
demurrer. The SAC alleges that Saenz stated to the entire city council at a
special meeting in March 2019 (the “Budget Study Workshop”) that the
meeting had not been properly agendized and violated the Brown Act, but the
meeting was “conducted, nonetheless by the Mayor and City Council
members.” This identifies the illegal conduct, when it occurred, and to whom
it was reported.6 Thus, although Saenz did not argue in his opening brief
how the SAC meets the heightened pleading standard of Lopez, our review of
the SAC demonstrates it does.
San Bernardino also argues the SAC fails to allege any adverse
employment action, and it does not plead causation with sufficient specificity
because it fails to identify dates to show temporal proximity between the
protected act and the retaliatory conduct. We disagree.
The SAC alleges that prior to the June 2019 city council meeting, the
mayor asked Saenz if he would be agreeable to reducing his salary, and
Saenz said he would not. The mayor then created an ad hoc economic
development committee comprised of three councilmembers, and the
committee recommended reducing Saenz’s salary effective July 1, 2019. The
mayor and a majority of the city council agreed to adopt a budget that
reduced Saenz’s salary from $184,000 to $100,000. A reduction in salary is
6 This allegation also provides a specific legal violation by identifying the
conduct and the law at issue, and Saenz’s disclosure of the unlawful activity
at a public hearing suggests he believed there was a legal violation.
16
an actionable adverse employment action because it materially affects the
terms, conditions, or privileges of employment. (See Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1051.)
San Bernardino contends the proposed salary reduction was not an
adverse employment action because Saenz successfully challenged its
imposition via a writ of mandate filed July 2, 2019, the outcome of which the
city accepted. We are not persuaded by San Bernardino’s reasoning.
Although the SAC references the salary reduction as “attempted,” we read
that in the context of the successful writ petition. The SAC alleges the salary
reduction became effective July 1, 2019, and Saenz filed his writ of mandate
the next day. Thus, the salary reduction occurred. The SAC also alleges
noneconomic damages as a result of San Bernardino’s conduct. We do not
construe the court’s interference via writ of mandate to be a “mere
inconvenience[ ] or annoyance.” Had San Bernardino not voted to reduce
Saenz’s salary, there would have been no need for Saenz to seek a writ of
mandate to protect it.
San Bernardino next contends the SAC does not allege causation with
sufficient specificity. Assuming specific dates are necessary to meet the
pleading requirements, Saenz’s complaint meets this requirement. The
March 2019 special meeting “Budget Study Workshop” at which Saenz stated
that the meeting violated the Brown Act and after which the mayor pulled
Saenz aside to say he was “out of line,” occurred about three months before
the mayor asked Saenz to reduce his salary, then created an ad hoc economic
development committee meeting. And it occurred less than four months
before the city council voted to reduce Saenz’s salary, effective July 1, 2019.
Because there is a sufficiently specific allegation regarding section 1102.5(b),
the court erred by entering a judgment of dismissal without leave to amend.
17
Finally, as it did in its demurrer, on appeal San Bernardino relies on
case law that addresses the separation of powers doctrine to offer legislative
immunity as an alternative basis for dismissal. “A . . . corollary of the
separation of powers doctrine as it impacts legislatures is legislators have
absolute immunity from damage suits based on legislative acts. [Citation.]”
(Steiner v. Superior Court (1996) 50 Cal.App.4th 1771, 1784 (Steiner); Gov.
Code, § 821 [public employee not liable for injury caused by adoption of
enactment].) Thus, “legal action may not be taken against [legislators] for
their activities involving planning or enacting legislation” because courts do
not consider the impetus or motive behind the legislative action. (Steiner, at
pp. 1783, 1785.)
San Bernardino contends the court cannot evaluate whether the city
engaged in unlawful retaliation because the legislators’ acts are absolutely
immune. (See Steiner, supra, 50 Cal.App.4th at p. 1784 [“[L]egal action may
not be taken against [legislators] for their activities involving planning or
enacting legislation”]; Gov. Code, § 821 [public employee not liable for injury
caused by adoption of enactment].) Further, San Bernardino reasons that
because Government Code section 815.2 states “a public entity is not liable
for an injury resulting from an act or omission of an employee of the public
entity where the employee is immune from liability,” that means that where
the individual has immunity, there can be no entity liability either.
However, there are two sources of potential liability under the Tort
Claims Act: “(1) the public entities’ liability based on their own conduct and
legal obligations, and (2) the public entities’ liability, based on respondeat
superior principles, for the misconduct of their employees that occurred in the
scope of their employment.” (Zelig, supra, 27 Cal.4th at p. 1127.) “[I]n a
retaliation case, it is the employer’s adverse employment action that
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constitutes the substance of the tort. . . .” (Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876, 901, fn. 8.) Here, the complaint alleges the
city council retaliated against Saenz by reducing his salary. While the
individual city councilmembers may have immunity, that immunity does not
extend to San Bernardino because the cause of action is not based on
respondeat superior.
D. The Court Did Not Abuse Its Discretion by Rejecting New Cause of Action
When a court sustains a demurrer with leave to amend, the plaintiff
may amend the complaint as authorized by the court’s order. (People ex rel.
Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.) To add a new
cause of action, a plaintiff should obtain the court’s permission. (Code Civ.
Proc., §§ 472, 473, subd. (a)(1); Leader v. Health Industries of America, Inc.
(2001) 89 Cal.App.4th 603, 613 [“ ‘[B]y virtue of its inherent power to prevent
abuse of its processes,’ a trial court may strike an amended complaint ‘filed in
disregard of established procedural processes,’ and may strike an amended
pleading ‘because no request for permission to amend was sought’ ”].) Thus,
when the sustention of the demurrer is with leave to amend, the leave to
amend is generally not to add a new cause of action. (Patrick v. Alacer Corp.
(2008) 167 Cal.App.4th 995, 1015 (Patrick).) However, that rule does not
apply if the new cause of action responds to the court’s reason for sustaining
the demurrer. (Ibid.)
For example, in Patrick, the court concluded the plaintiff failed to
allege she had standing as a beneficial shareholder to bring a shareholder
derivative claim. (Patrick, supra, 167 Cal.App.4th at p. 1015.) In response to
the requirement that she demonstrate she was a beneficial shareholder with
standing, she amended the complaint with a declaratory relief cause of
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action, seeking a declaration that she had a community property interest in
the shares, which would demonstrate standing. (Ibid.)
In Rope v. Auto-Chlor System of Washington, Inc. (2013) 220
Cal.App.4th 635 (Rope) (superseded by statute on other grounds), the
plaintiff alleged, among other claims, wrongful employment termination in
violation of public policy, associational discrimination, and failure to
maintain a workplace environment free from discrimination.7 (Id. at pp. 644,
654.) The court sustained with leave to amend those three causes of action.
(Id. at p. 644.) The plaintiff amended them and added a new cause of action
for discrimination based on actual or perceived disability. (Id. at p. 654.) On
appeal, the defendant argued that the plaintiff failed to obtain leave to
amend to add a new claim. The appellate court noted that it is error to
sustain a demurrer if the plaintiff can state a cause of action under any
possible legal theory and explained that the plaintiff “requested leave to
amend the FAC to allege new disability discrimination and perceived
disability claims,” and the “issue was also discussed at the hearing on the
demurrer.” (Ibid.) It concluded the new causes of action responded to the
court’s concern that the plaintiff needed to provide “a statutory predic[ation]”
for alleging the employer’s failure to give the employee requested “leave was
unlawful disability-based discrimination.” (Ibid.)
Saenz contends that his addition of a cause of action for section 1102.5,
subdivision (c) is his response to the court’s conclusion that he had failed to
“allege facts demonstrating what specific acts [Saenz was] aware of, when
[Saenz] made such complaints and to whom, and facts demonstrating a
7 The plaintiff also alleged violation of section 1102.5. (Rope, at p. 648.)
The appellate court concluded he could not plead a viable whistleblower claim
because he did not claim to report suspicions of unlawful activity to a
governmental agency or refuse to violate the law. (Id. at pp. 648-649.)
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causal link between the protected activity and the adverse action[,]” the
various elements of a cause of action under section 1102.5(b). He notes that
the court did not find that he failed to plead sufficient facts to sustain a cause
of action under section 1102.5, subdivision (c), and because he “ple[aded]
sufficient facts to sustain a cause of action[,] whether it was under Labor
Code section 1102.5, subdivisions (b) or (c) is immaterial. . . .” We disagree.
Saenz explains that the trial court concluded Saenz failed to “allege
facts demonstrating what specific acts [Saenz was] aware of, when [Saenz]
made such complaints, and to whom, and facts demonstrating a causal link
between the protected activity and the adverse action.” He contends that
adding a separate cause of action for violating section 1102.5, subdivision (c)
is his response to the court’s concern because he could “also seek relief under
the same statute for retaliation for [his] refusal to carry out illegal orders
without having to notify law enforcement or some other government agency.”
In other words, he contends he does not need to plead facts that demonstrate
illegal conduct, that he made complaints or to whom he made complaints—
the problems the trial court indicated—because he can, instead, plead that he
was asked to and refused to participate in an activity that would result in
violating a law or regulation. This does not correct the flaw with his cause of
action for violating section 1102.5(b), as the court granted leave to do. In
essence, Saenz seeks to add a replacement cause of action based on newly
added factual allegations about his refusal to engage in allegedly unlawful
activity. The SAC identifies an entirely separate basis for the adverse
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employment action based on entirely different conduct.8 Thus, the court did
not abuse its discretion by refusing to consider the second cause of action
when it granted demurrer and entered judgment dismissing the second cause
of action without leave to amend.
DISPOSITION
The judgment is reversed as to the first cause of action. In all other
respects, the judgment is affirmed. The parties shall bear their own costs on
appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
8 The addition of a cause of action for violating section 1102.5,
subdivision (c) could require pleading with particularity even under the
interpretation of Lopez offered by Saenz because it creates a “reasonable
uncertainty” by identifying two separate courses of conduct that could have
independently or together resulted in the adverse employment action. (See
Landau, supra, 4 Cal.3d at p. 909.)
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