Gonzalez v. County of Los Angeles CA2/2 ( 2023 )

Filed 7/28/23 Gonzalez v. County 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
AUSTREBERTO GONZALEZ, B317794
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No.
20STCV35594)
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. William F. Fahey, Judge. Affirmed.
Alexander Morrison + Fehr, Tracy L. Fehr; Romero Law,
Alan Romero and Edward Wells for Plaintiff and Appellant.
Miller Barondess, Mira Hashmall, Eleanor S. Ruth and
Jamil M. Aslam for Defendant and Respondent.
_____________________________________
Austreberto Gonzalez (plaintiff) is a Los Angeles County
sheriff’s deputy. Plaintiff appeals from the judgment entered in
favor of his employer, the County of Los Angeles (the County).
Plaintiff’s operative second amended complaint asserts causes of
action against the County for whistleblower retaliation (Lab.
Code, §1102.5) and for violations of the Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.1) and the Tom
Bane Civil Rights Act (Bane Act) (Civ. Code, § 52.1). The second
amended complaint stems from alleged incidents of
discrimination, workplace harassment, and retaliation by fellow
deputies and supervisors. Three causes of action were dismissed
on demurrer. The others were limited to a time period not barred
under Government Code section 911.2 and decided against
plaintiff on summary judgment. Plaintiff challenges the rulings
on the demurrer and the summary judgment motion, as well as
those on discovery issues and costs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
Plaintiff was hired as a deputy sheriff by the County in
November 2007. He was assigned to the Compton station in
January 2015. Plaintiff was divorced and the father of a
daughter. She has serious health issues. Plaintiff’s work
schedule coincided with his court-ordered visitation. He was
therefore able to care for his daughter’s medical needs.
In 2016, plaintiff began to experience a series of job-related
incidents at the Compton station. He attributed the incidents to
his refusal to join a deputy gang known as the Executioners.
1 Undesignated statutory references refer to the
Government Code.
2
First, Deputy Jaime Juarez, the deputy in charge of shift
scheduling, refused to allow plaintiff to keep his current work
schedule. Plaintiff had no choice but to take CFRA/FMLA leave
to care for his daughter.2 According to plaintiff, Deputy Jaime
Juarez is a leader of the Executioners.
In 2017, plaintiff was reprimanded and placed on traffic
duty after he protested an “illegal quota program” for
misdemeanor arrests favored by the deputy gang.
In June or July 2019, plaintiff submitted a formal request
to leave the Compton station for the Pico Rivera station. It was
placed on hold while one of his traffic stops was being
investigated.
In October 2019, plaintiff became a field training officer
(FTO). He was assigned his first trainee for three months and
received a bonus.
In early February 2020, plaintiff’s friend, Deputy Thomas
Banuelos, got into a fistfight with another deputy at the Compton
station. Banuelos told plaintiff about the fight. The other deputy
2 The California Family Rights Act of 1993 (CFRA),
Government Code section 12945.2, entitles eligible employees to
take up to 12 unpaid workweeks in a 12-month period for family
care and medical leave to care for their children, parents, or
spouses, or to recover from their own serious health condition.
The CFRA closely parallels its federal counterpart, the Family
and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 et seq.),
which also provides that an eligible employee “shall be entitled to
a total of 12 workweeks of leave during any 12-month period”
due, among other things, to “a serious health condition that
makes the employee unable to perform the functions of the
position of such employee.” (29 U.S.C. § 2612(a)(1)(D).)
3
was known to be an Executioner. Plaintiff called the internal
affairs bureau and reported the fight anonymously.
Master FTO Saul Romero had plaintiff select a new trainee
at the training academy. While there, plaintiff was told the
Executioners knew he had reported the fistfight to internal
affairs. Plaintiff feared reprisals from the deputy gang. He was
given time off work. While at home, plaintiff received a text
message from another deputy, who was also a friend. The text
message included a photograph of graffiti at the Compton station.
The graffiti read: “ ‘ART IS A RAT.’ ” Plaintiff took more time
off.
Later, plaintiff was interviewed twice about the fistfight by
a special detail of investigators.
Plaintiff returned to the station in late February. He was
called into the office of Sergeant Frank Barragan and relieved of
his FTO position. Plaintiff signed a memorandum that he
“currently [has] FMLA submitted and approved,” was “unable to
fully dedicate” himself to his FTO position, and his “family
requires [his] undivided attention.” Plaintiff’s previously selected
trainee was taken from him.
Plaintiff asked his captain to be transferred to the Pico
Rivera station. He was still fearful. The captain said she could
immediately transfer him to the East Los Angeles station, but
not to Pico Rivera. Plaintiff declined.
In mid-March to early April 2020, plaintiff was working the
day shift. Sergeant Barragan asked if plaintiff could switch to
the graveyard shift in exchange for his choice of days off.
Plaintiff declined. The shift change would prevent him from
caring for his disabled daughter.
4
On March 26, 2020, plaintiff was deprived of one hour of
overtime pay that had not been preapproved.
Plaintiff began receiving excessive calls for service
whenever a deputy gang member was working dispatch. Other
deputies would not partner with plaintiff because he was an
Executioners’ target.
In March or April, plaintiff agreed to be “on loan” to the
detective bureau to file cases at the courthouse.
Plaintiff was passed over for the position of watch deputy,
which he believed was to have gone to him. The deputy who was
awarded the position was unqualified and an Executioners
member.
On August 20, 2020, a dead rat was left at the home of
plaintiff’s friend, Deputy Banuelos. Plaintiff was frightened,
fearing it was also a threat to him.
On or about August 30, 2020, Sheriff Alex Villanueva
identified plaintiff by name during a news interview and said
plaintiff was not a whistleblower.
In September 2020, the administrative investigation into
plaintiff’s traffic stop was completed and he received a written
reprimand. Plaintiff was then transferred to the Pico Rivera
station, where he is still assigned, but on medical leave.
II. Proceedings
Plaintiff filed a government claims letter, which was
largely rejected as untimely. Months later, he filed an
administrative complaint with and received a right-to-sue letter
from the Department of Fair Employment and Housing under
FEHA.
Plaintiff initiated this suit in September 2020. After
stipulated extensions to file amended complaints, the second
5
amended complaint became the operative complaint.3 It alleged
six causes of action for damages, four of which are claims under
the FEHA: (1) associational disability discrimination (Gov. Code,
§§ 12926, subd. (o), 12940, subd. (a)); (2) harassment and/or
hostile work environment (id., §§ 12923, 12926, subd. (o));
(3) workplace retaliation (id., § 12940, subd. (h)); and (4) failure
to prevent retaliation (id., § 12940, subd. (h)). The fifth cause of
action alleged whistleblower retaliation (Lab. Code, § 1102.5).
The sixth cause of action alleged a violation of the Bane Act (Civ.
Code, § 52.1).
Following the County’s demurrer, three causes of action
remained in the second amended complaint: workplace
retaliation and failure to prevent retaliation under FEHA and
whistleblower retaliation under Labor Code section 1102.5. The
trial court found the causes of action rested on many alleged
events that were time-barred. The events had occurred years
before plaintiff’s submission of his government claims letter.
(Gov. Code, § 911.2.) The court limited plaintiff’s remaining
causes of action to alleged events that were timely—specifically
his February 2020 report of the fight between two deputies and
allegations of subsequent retaliation. The court declined to allow
plaintiff leave to amend.
3 In response to the County’s demurrer to the second
amended complaint, rather than file opposition, plaintiff
attempted to file an unauthorized third amended complaint. The
trial court dismissed the County’s unopposed demurrer without
leave to amend and dismissed the case. Later the court granted
plaintiff’s motion for relief from dismissal and considered his late
opposition to the demurrer.
6
The parties stipulated to a protective order, which the court
signed on June 25, 2021.
On July 29, 2021, the County moved for summary
judgment, or alternatively, summary adjudication of issues.
On August 21, 2021, plaintiff moved to compel the County’s
responses to written discovery and for an in-camera review of law
enforcement personnel records pursuant to Pitchess v. Superior
Court (1974) 11 Cal.3d. 531 (Pitchess). Within the week, plaintiff
filed an ex parte application to continue the summary judgment
hearing for further discovery. On September 20, 2021, plaintiff
filed a motion to compel the deposition testimony of Deputy
Jaime Juarez.
On September 23, 2021, the trial court denied plaintiff’s
first motion to compel except for one interrogatory response. The
court denied the Pitchess motion and the application to continue
the summary judgment hearing. Days later, plaintiff filed his
opposition to the summary judgment motion.
On October 8, 2021, the trial court advanced the motion to
compel Juarez’s deposition and took it off calendar because
plaintiff had failed to provide the court with a courtesy copy.
Following a hearing in November 2021, the trial court
granted summary judgment for the County.
Shortly thereafter, the County filed a memorandum of
costs, and plaintiff moved to strike costs. Ultimately, the court
awarded costs to the County in the amount of $13,943.
Plaintiff timely filed an appeal in which he contests most of
the trial court’s rulings. We discuss each ruling in turn.
7
DISCUSSION
I. Sustaining the Demurer to the Second Amended
Complaint
A. Applicable Law and Standard of Review
A general demurrer challenges whether the allegations of a
complaint are sufficient to state a cause of action. (Code Civ.
Proc., § 430.10, subd. (e); SLPR, L.L.C. v. San Diego Unified Port
Dist. (2020) 49 Cal.App.5th 284, 316.) In opposing a demurrer,
“the plaintiff must show the complaint alleges facts sufficient to
establish every element of each cause of action.” (Rakestraw v.
California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) In
assessing the sufficiency of the allegations, the trial court must
accept the truth of all material facts properly pleaded, but not
contentions, deductions, or conclusions of fact or law, and may
also consider matters that may be judicially noticed. (SLPR,
supra, 49 Cal.App.5th at p. 316.)
Our review is de novo. We independently determine
whether the operative pleading states a cause of action as a
matter of law. We give “the complaint a reasonable
interpretation, reading it as a whole and its parts in their
context.” (Stearn v. County of San Bernardino (2009) 170
Cal.App.4th 434, 439.) We review the trial court’s result for
error, not its legal reasoning. (Mendoza v. Town of Ross (2005)
128 Cal.App.4th 625, 631.)
The second amended complaint is far from a model
pleading. Instead of stating the elements for each cause of action
and the factual allegations to support them, plaintiff includes
8
irrelevant information,4 adopts a shotgun pleading format,5 and
in numerous instances, relies on conclusions rather than factual
allegations.6 Indeed, the second amended complaint is peppered
4 For example, the second amended complaint describes at
length the genesis and impact of the “illegal arrest quotas” and
the on-duty interaction between other deputies and supervisors
unrelated to plaintiff’s claims.
5 “Shotgun pleadings are pleadings that overwhelm
defendants with an unclear mass of allegations and make it
difficult or impossible for defendants to make informed responses
to the plaintiff’s allegations. They are unacceptable.” (Sollberger
v. Wachovia Securities, LLC (C.D.Cal. June 30, 2010, No. SACV
09-0766) 2010 U.S. LEXIS 66233, *11 [2010 WL 2674456]);
Mason v. County of Orange (C.D.Cal. Aug. 19, 2008, No. SACV
08-0235) 251 F.R.D. 562, 563–564.) For example, the first, third,
and fifth causes of action set forth a laundry list of adverse
employment actions attributed to the County: Plaintiff was
“(1) asked impermissible non-job-related questions; (2) demoted;
(3) denied any employment benefit or privilege; (4) denied family
care or medical leave (CFRA); (5) denied hire or promotion;
(6) denied or forced to transfer; (7) denied work opportunities or
assignments; (8) reprimanded; and/or (9) being subjected to a
threat of being murdered for being a witness to illegal acts and
protesting same.” The second amended complaint’s “Factual
Allegations” section and fifth cause of action set forth numerous
provisions of the sheriff’s department Manual of Policies and
Procedure and local, state, and federal laws or regulations
unencumbered by any explanation as to their substance or how
they pertain to the alleged causes of action.
6 For example, the second amended complaint alleges the
Compton station “has been permeated by a violent Deputy gang
which calls itself ‘The Executioners,’ ” and “operate[s] . . . with
impunity, its members use violence against other Deputies and
members of the public in order to increase their standing within
9
with years of allegations detailing a litany of events and acts,
with virtually no effort to specify the facts that support each
cause of action.
B. Section 911.2 Limitation of the Government
Claims Act and the Continuing Violation
Doctrine
Based on the six-month time limitation in section 911.2,
subdivision (a) of the Government Claims Act (§ 810 et seq.), the
trial court ruled that plaintiff was barred from pursuing any
causes of action based on misconduct predating December 16,
2019—six months before the submission of the Government
Claims letter with the County.7
Section 911.2 requires a plaintiff to present a claim for
money or damages to a public entity as a condition precedent to
pursuing a lawsuit. As relevant here, personal injury claims
must be presented no later than six months after the accrual of
the cause of action or be barred. (§ 911.2, subd. (a);8 Willis v. City
of Carlsbad (2020) 48 Cal.App.5th 1104, 1118.)
the criminal organization.” The complaint further alleged the
County engaged in a “Sham Investigation” of his reports to the
internal affairs bureau without supporting facts.
7 Although the government claims letter was filed on
June 23, 2020, the trial court used June 16, 2020, the date
plaintiff signed the letter, to compute the six-month period.
8 Section 911.2, subdivision (a) reads: “A claim relating to
a cause of action for death or for injury to person or to personal
property or growing crops shall be presented as provided in
Article 2 (commencing with Section 915) not later than six
months after the accrual of the cause of action. A claim relating
to any other cause of action shall be presented as provided in
Article 2 (commencing with Section 915) not later than one year
10
The parties agree that Government Code section 911.2
should not have been applied to the FEHA causes of action.
However, plaintiff wrongly claims FEHA’s current three-year
limitation, rather than FEHA’s one-year limitation then in effect,
applies. The FEHA causes of action were limited to actionable
allegations arising from conduct occurring September 15, 2019, to
September 15, 2020. (Gov. Code, § 12960, former subd. (d);
Pollack v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th
918, 929.) The causes of action for violation of Labor Code section
1102.5 and the Bane Act were limited to actionable allegations
arising from conduct occurring after December 16, 2019.
In any event, a complaint must allege facts that
demonstrate timely presentation of a claim or that belated
presentation is excused to avoid being subject to a demurrer for
failure to state a cause of action. (Willis v. City of Carlsbad,
supra, 48 Cal.App.5th at p. 1119; see also Acuna v. San Diego
Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1415 [affirming
order sustaining a demurrer and holding “the continuing
violations doctrine is inapplicable” to a disability discrimination
claim].)
after the accrual of the cause of action.” Section 901 provides
that “[f]or the purpose of computing the time limits prescribed by
Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of
a cause of action to which a claim relates is the date upon which
the cause of action would be deemed to have accrued within the
meaning of the statute of limitations which would be applicable
thereto if there were no requirement that a claim be presented to
and be acted upon by the public entity before an action could be
commenced thereon.”
11
Plaintiff invoked the continuing violation doctrine in the
second amended complaint as a basis for asserting his allegations
were not time-barred. Putting aside the initial claim
presentation deadlines of section 911.2 and FEHA, the question
is whether the continuing violation doctrine applies to salvage
the misconduct plaintiff alleged to have occurred in 2016 and
2017. The continuing violation doctrine “allows liability for
unlawful . . . conduct occurring outside the statute of limitations
if it is sufficiently connected to unlawful conduct within the
limitations period.” (Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798, 802 (Richards); see also Yanowitz v. L’Oreal USA,
Inc. (2005) 36 Cal.4th 1028, 1056.)
For the continuing violation doctrine to apply, the plaintiff
must show (1) the misconduct occurring within the limitations
period is similar in kind to the misconduct that falls outside the
period; (2) the misconduct was reasonably frequent; and (3) it had
not yet acquired a degree of permanence. (Richards, supra, 26
Cal.4th at p. 823.) “Permanence” in this context means that an
employer’s actions make clear to a reasonable employee that any
further efforts to end the alleged unlawful conduct will be futile,
or the employer “mak[es] clear to the employee in a definitive
manner” that the employee’s requests have been rejected. (Ibid.)
The earlier misconduct claimed by plaintiff consists of
being refused certain days off by Deputy Juarez for scheduled
childcare in 2016 and being reprimanded and transferred to
traffic duty in 2017 after protesting the arrest quotas. We need
not address whether these acts, while different in kind, are
sufficiently closely related to constitute a continuing violation of
the acts claimed within the one year (FEHA) or six months
(§911.2). (Dominguez v. Washington Mutual Bank (2008) 168
12
Cal.App.4th 714, 722.) Neither alleged act acquired a degree of
permanence to preclude the application of the continuing
violation doctrine. According to the second amended complaint,
plaintiff was reassigned to an FTO position in October 2019. In
2020, plaintiff was offered his choice of days off if he accepted the
graveyard shift, which he turned down. And plaintiff was never
denied his requested days off in 2020, and he continued to receive
his intermittent CFRA/CMLA leave. We agree with the trial
court in rejecting the application of the continuing violation
doctrine.
C. Causes of Action: Elements and Sufficiency of
the Allegations
Plaintiff argues the trial court erroneously ruled his causes
of action for associational disability discrimination and violation
of the Bane Act did not withstand demurrer.9 We disagree.
1. Associational disability discrimination
Plaintiff’s first cause of action is for associational disability
discrimination. It is an unlawful employment practice under the
FEHA to discriminate against any person because of a physical or
mental disability. (§ 12940, subd. (a).) Associational disability
discrimination prohibits discrimination against persons who are
so closely associated with a disabled person that they are, in
effect, disabled for purposes of employment under FEHA.
(Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2
Cal.App.5th 1028, 1036 (Castro-Ramirez).) A prima facie case
based on associational disability discrimination requires a
showing that: “(1) the plaintiff suffered from a disability, (2) the
9 Plaintiff does not contest the dismissal of the cause of
action for harassment and/or hostile work environment.
13
plaintiff was otherwise qualified to do his or her job, with or
without reasonable accommodation, and (3) the plaintiff was
subjected to adverse employment action because of the
disability.” (Id. at p. 1037.) Under the third element, “the
disability must be a substantial factor motivating the employer’s
adverse employment action.” (Ibid.; see Castro-Ramirez, supra,
at pp. 1042–1043 [holding that an employee had associational
disability claim for being terminated after requesting scheduling
accommodations to administer daily dialysis to his disabled son];
Rope v. Auto-Chlor System of Washington, Inc. (2013) 220
Cal.App.4th 635, 642 (Rope) [holding that an employee had a
claim for associational disability discrimination after he was fired
for requesting time off to donate a kidney to his ailing sister].) In
addition, effective January 1, 2016, section 12940, subdivision
(m)(2) prohibits an employer from discriminating or retaliating
against an employee for requesting accommodation for
associational disability, “regardless of whether the request was
granted.”
The gravamen of this cause of action appears to be that
plaintiff was being discriminated against because Deputy Juarez
denied plaintiff his original childcare schedule. Plaintiff was not
fired, unlike the Castro-Ramirez and Rope plaintiffs. Instead,
plaintiff received the CFRA/FMLA leave to which he was
entitled. This is not an adverse employment action.
Plaintiff alleges his association with his disabled daughter
was a “substantial factor” in subjecting him to one or more of
nine adverse employment actions. However, no supporting facts
are alleged demonstrating “a causal link” between plaintiff’s
taking leave to care for his daughter and any of the assorted
14
adverse actions he alleges. The cause of action for associational
disability discrimination fails as a matter of law.
2. Bane Act violation
The sixth cause of action is based on an alleged violation of
Civil Code section 52.1, known as the “Tom Bane Civil Rights
Act.” The Bane Act provides a private cause of action for “[a]ny
individual whose exercise or enjoyment of rights secured by the
Constitution or laws of the United States, or of rights secured by
the Constitution or laws of this state, has been interfered with, or
attempted to be interfered with” by a person “whether or not
acting under color of law,” who uses “threat, intimidation, or
coercion.” (Civ. Code, § 52.1, subds. (a)–(c).)
“The essence of a Bane Act claim is that the defendant, by
the specified improper means (i.e., ‘threats, intimidation, or
coercion’), tried to or did prevent the plaintiff from doing
something he or she had the right to do under the law or to force
the plaintiff to do something that he or she was not required to do
under the law.” (Austin B. v. Escondido Union School Dist.
(2007) 149 Cal.App.4th 860, 883.) A violation of the Bane Act
does not require any discriminatory animus. (Venegas v. County
of Los Angeles (2004) 32 Cal.4th 820, 843.)
The specific allegations plaintiff states as the basis for his
Bane Act cause of action are that County employees threatened
“to murder [him].” The only bases for that allegation were the
“ART IS A RAT” graffiti written on the entry gate key pad while
plaintiff was off work and the dead rat delivered to a fellow
deputy and friend. (Nothing in the second amended complaint
states why the rat was not presumed to have died either of
natural causes or as the victim of a nonhuman animal.) In any
event, there was no factual allegation of any physical threat,
15
intimidation, or coercion made directly against plaintiff by
anyone. A plaintiff must be personally threatened; there is no
derivative liability for individuals who are not present and
witnessing the actionable conduct. (Bay Area Rapid Transit Dist.
v. Superior Court (1995) 38 Cal.App.4th 141, 144 [Bane Act is
“limited to plaintiffs who themselves have been the subject of
violence or threats”].)
Even assuming the graffiti and dead rat amounted to a
sufficient threat of murder as plaintiff argues, nowhere does the
second amended complaint identify the violation of rights
amenable to Bane Act enforcement. Instead, there is only a
general reference to plaintiff’s “protected whistleblowing
activities” and his “protest[s]” about FEHA violations by the
County. Because the Bane Act cause of action “is based on
statute, the general rule that statutory causes of action must be
pleaded with particularity is applicable.” (Lopez v. Southern Cal.
Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) “ ‘[T]he plaintiff
must set forth facts in his complaint sufficiently detailed and
specific to support an inference that each of the statutory
elements of liability is satisfied. General allegations are
regarded as inadequate.’ ” (Shields v. County of San Diego (1984)
155 Cal.App.3d 103, 112.) Accordingly, plaintiff’s Bane Act cause
of action fails as a matter of law.
D. The Court’s Time Limitation on the Remaining
Causes of Action
Plaintiff asserts the trial court committed reversible error
by limiting the three remaining causes of action to include only
timely allegations. This was improper, plaintiff argues, because
a demurrer does not lie to part of a cause of action. (Cornejo v.
Lightbourne (2013) 220 Cal.App.4th 932, 944.)
16
Plaintiff did not raise this argument in the trial court. It has
thus been forfeited on appeal. (See Thompson v. Ioane (2017) 11
Cal.App.5th 1180, 1191–1192 [forfeiture applied to plaintiff’s argument
not raised in opposition to demurrer]; Wittenberg v. Bornstein
(2020) 51 Cal.App.5th 556, 567–568 [finding courts are not
required, and may properly decline, to consider arguments not
raised in demurrer even if based on purely legal questions].)
Nonetheless, we note the alleged 2016 and 2017 events did
not survive the continuing violation doctrine. The trial court’s
limitation of the remaining causes of action to plaintiff’s report of
the fight in 2020 was in keeping with the timeline of actionable
events from February to September 2020 and did not prejudice
plaintiff.
E. Denial of Leave to Amend
Leave to amend a complaint is entrusted to the sound
discretion of the trial court, and “ ‘ “[t]he exercise of that
discretion will not be disturbed on appeal absent a clear showing
of abuse.” ’ ” (Branick v. Downey Savings & Loan Assn. (2006) 39
Cal.4th 235, 242.) Plaintiff argues the trial court abused its
discretion in denying him leave to amend because an amendment
would clear up the court’s “confusion as to timing and the
connection between protected activities and adverse actions.”
At the hearing on the demurrer, plaintiff urged that he
should be given leave to amend to add a claim that he was a
victim of racial discrimination under FEHA. Plaintiff argued
that, as a Hispanic, he was the victim of racial discrimination by
a predominantly Hispanic gang, who had targeted him because
he had refused to join his fellow Hispanics. The court pointed out
that plaintiff had not included this theory in his government
claim letter or administrative complaint or in previously filed
pleadings.
17
In denying leave to amend, the trial court remarked that
plaintiff already attempted to file four complaints with no
substantive changes. The court added that allowing another
opportunity to amend would be futile because plaintiff failed to
show the dismissed causes of action could be amended to state
viable claims.
II. Discovery Motions
Plaintiff next disputes the correctness of the denial of his
motions to compel production of written discovery and Deputy
Juarez’s deposition testimony. He also contests the denial of his
Pitchess motion, which we discuss separately. We perceive no
error.
A. Additional Background
The parties engaged in several rounds of discovery.
Plaintiff propounded extensive written discovery to the County.
Between June and August 2021, the parties exchanged “meet and
confer” e-mails and letters concerning the County’s responses and
objections to the written discovery. In the meantime, on July 9,
2021, plaintiff’s counsel sent a letter to the County to coordinate
proposed video-deposition dates for 19 employees of the sheriff’s
department, including then-Sheriff Alex Villanueva. Plaintiff’s
counsel stated the depositions were to be used in five named
cases that were pending against the County. On July 19, 2021,
the County’s counsel e-mailed plaintiff’s counsel, rejecting the
proposal. She asked him to designate the depositions he was
noticing for the instant case only and agreed to follow up with
available dates. Plaintiff’s counsel stated he wanted all 19
depositions, the County’s counsel began scheduling them, with
18
the exception of the apex depositions of the sheriff and
undersheriff.10
After taking plaintiff’s video deposition in June, the County
filed a motion for summary judgment on July 29, 2021.
On August 11, 2021, plaintiff’s counsel began taking
Deputy Juarez’s video deposition. After the County’s counsel
instructed Juarez not to answer multiple questions, she halted
the deposition. In response, plaintiff’s counsel canceled all
scheduled depositions.
On August 23, 2021, plaintiff filed a motion to compel
written discovery. Two days later, plaintiff filed a Pitchess
motion. On September 20, 2021, plaintiff moved to compel
Deputy Juarez’s deposition testimony. All three motions were
opposed by the County. All three motions were denied by the
trial court.
B. Motions to Compel: Standard of Review
“We review a trial court’s discovery orders for an abuse of
discretion. ‘ “ ‘The trial court’s determination will be set aside
only when it has been demonstrated that there was “no legal
justification” for the order granting or denying the discovery in
question.’ ” ’ ” (MacQuiddy v. Mercedes-Benz USA, LLC (2015)
233 Cal.App.4th 1036, 1045.)
10 Under the “apex deposition doctrine” or “apex
witness rule,” the plaintiff must show the apex official of the
defendant corporation or government agency has unique or
superior personal knowledge that is unobtainable through
less intrusive discovery means. (Liberty Mutual Ins. Co. v.
Superior Court (1992) 10 Cal.App.4th 1282, 1287–1290
[corporation]; Nagle v. Superior Court (1994) 28 Cal.App.4th
1465, 1467–1468 [government agency].)
19
C. Orders Denying Motions to Compel
1. Trial court did not abuse its discretion in
denying the motion to compel written
discovery
Plaintiff moved to compel the County’s responses to two
sets of special interrogatories, one set of form interrogatories, one
set of requests for admission, and one set of requests for
production of documents. At the August 30, 2021 hearing,
plaintiff’s counsel did not deny the discovery requests were broad.
He explained to the trial court that the civil discovery rules
allowed him to conduct broad discovery (“a fishing expedition”)
that may prove relevant in his other pending cases. Nor is such
discovery limited to the narrow issues imposed by the court. In
his written motion, counsel argued the facts and circumstances of
the leak of the voice recording of the deputies’ fight that are at
issue in this case. According to his “cat’s paw” theory of
causation,11 “the Executioners illicitly obtained a recording of the
call” and used it and their influence to retaliate against him.12
11 Under the cat’s paw theory, the actor who acted without
animus “may be found to have operated as a mere
instrumentality or conduit for others who acted out of
discriminatory or retaliatory animus, and whose actions were a
but-for cause of the challenged employment action.” (Reeves v.
Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112–113; see also
Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th
444, 461.)
12 Plaintiff asserted:
“Thus, the following topics are fair
game for discovery: the Executioners gang, its leadership,
membership, aims, actions, motivations, and the same for its
individual members; the command influence, if any, wielded by
the Executioners or particular Executioners members, whether to
20
In denying the motion, the trial court reminded plaintiff’s
counsel of the narrow scope of the litigation and admonished him
not to engage in discovery exceeding the previously ordered
parameters: “for the several months at issue, his reporting of the
hearsay incident, and whether, if at all, he was retaliated
against.”
There was no abuse of discretion. First, had plaintiff
wanted to depose witnesses that were also named in five “other
cases” represented by “other attorneys,” he could have filed a
motion under Code of Civil Procedure section 1048, subdivision
(a). The statute provides: “When actions involving a common
question of law or fact are pending before the court, it may order
a joint hearing or trial of any or all the matters in issue in the
actions; it may order all the actions consolidated and it may make
such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.” (See, e.g., State of California v.
Altus Finance (2005) 36 Cal.4th 1284, 1293 [cases consolidated
for discovery and pretrial matters]; Austin B. v. Escondido
Unified School Dist., supra, 149 Cal.App.4th at p. 870 [cases
Plaintiff’s detriment or otherwise; the ratification of misconduct
of the Executioners or its members by the Sheriff’s Department,
whether to Plaintiff’s detriment or otherwise; Sheriff Villanueva’s
public comments qua Sheriff about Plaintiff and the factual merit
of Plaintiff’s case; the documents and communications in the
County’s possession relating to Plaintiff’s case. Jaime Juarez is
the leader of the Executioners, and has wielded undue command
influence on multiple occasions, on behalf of himself and the
Executioners. . . . Thus, discovery into the County’s special
treatment of him, including re-authorizing him to carry a firearm
and return to patrol duties is within the scope of discovery of this
case.”
21
consolidated for discovery and trial]; Frieman v. San Ravael Rock
Quarry, Inc. (2004) 116 Cal.App.4th 29, 33 [cases consolidated for
discovery and pretrial determinations].) Plaintiff cites no
authority obligating the County to agree to written discovery or
depositions that would possibly serve to obtain relevant discovery
in other cases.
Second, plaintiff’s arguments to justify conducting wide-
ranging discovery were extensive. However, such arguments
manifested a palpable failure to acknowledge the limits of the
scope of litigation imposed by the court. None of plaintiff’s
written discovery, excepting special interrogatory 35, were even
remotely addressed to the dispositive issue of whether plaintiff
was retaliated against by the County as a result of his report of
the fight. Most discovery was aimed at the nature and extent of
the alleged Executioners’ existence, practices, and authority in
the sheriff’s department and the City of Compton, which were
irrelevant to his cat’s paw theory as it pertained solely to his
hearsay report of the deputies fight and ensuing retaliation. (See
Code Civ. Proc., § 2017.010 [discovery allowed only where the
matter is relevant in the pending action].) Ultimately, the court
compelled the County to respond to special interrogatory 35,
regarding the chain of custody for plaintiff’s recording of his
report of the deputies’ fight.
2. The trial court did not abuse its discretion
in denying the motion to compel Deputy
Juarez’s deposition testimony
The trial court advanced the motion to compel Deputy
Juarez’s deposition testimony and took it off calendar. Despite
repeated admonishments to comply with court rules, plaintiff’s
counsel failed to submit required courtesy copies to the court.
22
Plaintiff contends the trial court abused its discretion by
resolving the motion on procedural grounds rather than on the
merits. We are not persuaded.
“Every court has the inherent power, in furtherance of
justice, to regulate the proceedings of a trial before it; to effect an
orderly disposition of the issues presented; and to control the
conduct of all persons in any manner connected therewith.
[Citations.] The exercise of this power is a matter vested in the
sound legal discretion of the trial court, subject to reversal on
appeal only in those instances where there has been an abuse of
that discretion.” (People v. Miller (1960) 185 Cal.App.2d 59, 77;
see also Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1351.)
A litigant’s failure to comply with local court rules may properly
result in a court’s refusal to consider the litigant’s position. (See
People v. Lewis (1977) 71 Cal.App.3d 817, 820–821.)
Plaintiff attacks the conduct of the County’s counsel in
representing Juarez during his deposition. However, plaintiff
fails to show the trial court abused its broad discretion. Nor does
he defend his own counsel’s repeated failure to comply with the
court’s rules. We find no abuse of discretion in these
circumstances.
D. Order Denying the Pitchess Motion
Plaintiff contends the trial court prejudicially erred in
denying his Pitchess motion, which sought to compel discovery of
information from the personnel files of 17 sheriff’s deputies. Not
so.
Generally, the personnel files of a law enforcement officer
are confidential and precluded from discovery in any legal
proceeding. (Pen. Code, §832.7, subd. (a).) Under Pitchess and
its progeny, however, discovery of certain information in the
23
personnel files of an officer accused of misconduct is permitted
upon a showing of good cause. (Warrick v. Superior Court (2005)
35 Cal.4th 1011, 1016; Pitchess, supra, 11 Cal.3d at pp. 536–538.)
Requiring a showing of good cause serves to balance a litigant’s
right to discovery and an officer’s right to privacy. (City of Santa
Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81–84.) “Good
cause for discovery exists when the defendant shows both
‘ “materiality” to the subject matter of the pending litigation and
a “reasonable belief” that the agency has the type of information
sought.’ ” (Warrick, supra, 35 Cal.4th at p. 1016.)
We review the trial court’s summary denial of discovery of
information from police officer personnel records for an abuse of
discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970,
992.)
Having examined plaintiff’s Pitchess motion in its entirety,
we agree with the trial court. While the good cause showing is
“relatively relaxed,” plaintiff has failed to meet it. There is no
materiality because there is no evidentiary connection between
the limited issues in this case and the information he seeks.
The County offered to provide plaintiff one item he sought
in his motion—the list of March 2020 qualified watch deputy
candidates. It is unclear whether plaintiff pursued this
discovery. Plaintiff also sought the deputies’ use-of-force history.
We note use-of-force incidents by law enforcement leading to
serious bodily injury or death were available at the time under
Penal Code section 832.7, former subdivision (b)(1)(A) through
California’s Public Records Act. (Gov. Code, former § 6250
et seq., repealed eff. Jan. 1, 2023, now id., § 7920.000 et seq.)
24
III. Motion for Summary Judgment
The County moved for summary judgment/summary
adjudication on the remaining three causes of action: workplace
retaliation and failure to prevent retaliation under FEHA and
whistleblower retaliation under Labor Code section 1102.5. As
the trial court previously ruled, the litigation was limited to
plaintiff’s “ ‘claim that he reported a fight between two deputies
and was thereafter subject to retaliation.’ ”
A. Supporting Evidence, Objections, Rulings
In support of its motion, the County filed a “Compendium
of Evidence” and a “Separate Statement of Undisputed Facts.”
The evidence included declarations of Deputy Romero, Master
FTO, and Sergeant Rene Barragan of the sheriff’s department,
partial transcripts of plaintiff’s depositions, photographed text
messages from plaintiff, and his responses to written discovery.
Plaintiff’s opposition papers included an “Opposition Separate
Statement” and an “Index of Evidence in Opposition” to the
motion. The evidence consisted of declarations of plaintiff,
Lieutenant Waldie, and former Commander Robert Olmsted of
the sheriff’s department, excerpted public statements of former
Sheriff Alex Villanueva, and partial transcripts of plaintiff’s
depositions. Plaintiff also filed over 100 “Additional Material
Facts in Dispute.”
The trial court sustained most of the County’s objections to
plaintiff’s and Olmsted’s declarations. The court also struck
plaintiff’s additional material facts as neither material nor
pertaining to the court-ordered time frame, and his Opposition
Separate Statement as based on argument or objections. The
court overruled plaintiff’s objections to the evidence in the
25
County’s Separate Statement of Undisputed Facts as
“noncompliant” with California Rules of Court, rule 3.1354(b).
Plaintiff does not challenge these rulings on appeal.
Following the hearing, the court granted the County’s
motion for summary judgment, concluding the County had
carried its burden on each of plaintiff’s causes of action and
plaintiff had failed to raise a triable issue of material fact as to
any of them.
B. Standard of Review
A motion for summary judgment or summary adjudication
is properly granted only when “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).) We review a grant of summary
judgment or summary adjudication de novo and decide
independently whether the facts not subject to triable dispute
warrant judgment for the moving party or a determination a
cause of action has no merit as a matter of law. (Hartford
Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277,
286.) The evidence must be viewed in the light most favorable to
the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 697,
703.)
C. Plaintiff’s FEHA Retaliation Causes of Action
FEHA protects an employee from retaliation who has
“blown the whistle” on a discriminatory employer practice
forbidden by section 12940, subdivision (a), e.g., discrimination
based on “race, religious creed, color, national origin, ancestry,
physical disability, mental disability, reproductive health
decisionmaking, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age,
26
sexual orientation, or veteran or military status.” The elements
of a FEHA retaliation cause of action are: (1) the plaintiff
engaged in a protected activity; (2) the employer subjected the
plaintiff to an adverse employment action, and (3) a causal link
exists between the protected activity and the employer’s action.
(Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.) An
employee engages in protected activity when she or he has
opposed any practices forbidden under FEHA, or testified, or
assisted in any proceeding under FEHA. (§ 12940, subd. (h).) An
employer who discharges, expels, or otherwise discriminates
against an employee for having engaged in protected activity has
committed an adverse employment action. (Ibid.)
The County argued plaintiff could not satisfy a prima facie
case for protected activity, much less a claim for FEHA
retaliation. Plaintiff acknowledged the fistfight he reported was
unrelated to FEHA violations or discrimination. Instead, he
testified, the fight allegedly occurred because one deputy was
angry with plaintiff’s friend for injuring another deputy in a
traffic collision and failing to detain an armed suspect. Reporting
the fight was not forbidden FEHA activity.
As for any adverse employment actions, the county argued
far from being able to show a nexus between any protected
activity and adverse employment actions, plaintiff could not show
he suffered any adverse employment actions at all under FEHA.
Plaintiff’s deposition testimony shows he became an FTO in 2019,
supervised a trainee for three months, and was paid the standard
bonus until his phase of the supervision ended. Like all FTO’s,
plaintiff received the bonus only when he was training. In
January 2020, there were no more trainees available, and
plaintiff welcomed “a break.” When deposed, plaintiff testified
27
that he was not demoted from his FTO position, he was just no
longer receiving the bonus. Plaintiff acknowledged during
deposition that he was currently listed as an FTO for the sheriff’s
department. He had not been assigned a trainee, but he had not
ask for one either. In his declaration, Master FTO Romero
confirmed he told plaintiff when he was ready to supervise he
would be assigned a trainee.
In June or July 2019, plaintiff requested a transfer to the
Pico Rivera station. During deposition, plaintiff testified that
although he “loved working in [Compton] at that station,” he felt
“it was enough time to do five years at a fast station.” Plaintiff’s
transfer was put on hold because of an investigation into an on-
duty traffic stop he conducted in September 2020. Plaintiff
testified that was standard procedure.
In March 2020, plaintiff asked to be transferred out of the
Compton station. His captain said she could transfer him
overnight to the East Los Angeles station, but she had no
authority to move him to the Pico Rivera station, which was out
of the district. Plaintiff declined, saying “[h]owever long it took,”
he wanted to go to the Pico Rivera station.
Plaintiff testified that in April or May 2020, Lieutenant
Ruiz offered “to send [him] on loan” to the detective bureau to
file cases for the station. Ruiz said the assignment is “almost the
same hours” so plaintiff would “keep the same shift.” Plaintiff
accepted the transfer. Plaintiff testified the filing position
involved a lot of paperwork, but “it wasn’t bad” and he “learned
some things.” When the investigation into his traffic stop was
completed in September 2020, plaintiff was transferred to the
Pico Rivera station. He is still assigned at that station, although
28
he is out “on medical leave.” Plaintiff is a “deputy sheriff
generalist.” He has not applied for a promotion since 2020.
This evidence shifted the burden to plaintiff to raise a
triable issue of fact on the issues of the alleged FEHA retaliation
cause of action. (See Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 361 [an employer moving for summary judgment on
a FEHA cause of action may satisfy its initial burden of proving
a cause of action has no merit by showing either that one or more
elements of the prima facie case is lacking, or that the adverse
employment action was based on legitimate nondiscriminatory
factors]; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th
1031, 1038 [same].)
Plaintiff did not address the protected activity element
other than to assert the fistfight related to “the Executioners and
intra-station politics.” Instead, plaintiff argued triable issues of
material fact exist as to whether he suffered adverse
employment actions in retaliation for reporting the fight—
specifically being forced out of the FTO position, denied a
trainee, and “relegated to the junior position of Assistant Filing
Deputy.”
Plaintiff testified that other deputies knew about the
anonymous report within days of his call to internal affairs,
although he had believed it would remain confidential. Then, as
an FTO, plaintiff was told to select a new trainee, and he did so
on February 13, 2020. Shortly thereafter, Sergeant Barragan
met with plaintiff and said, while he understood plaintiff needed
to take CFRA/FMLA leave, plaintiff’s absences were a disservice
to trainees. Plaintiff could choose either to remain an FTO and
be subject to “documenting” (for potential discipline), or he could
relinquish his FTO position in writing. Sergeant Barragan had
29
prepared the memorandum, which plaintiff edited slightly before
signing. The memorandum was “not accurate” in stating that
plaintiff had to stop supervising trainees because of CFRA/FMLA
leave and family needs. As a result of the memorandum, plaintiff
was not able to supervise his chosen trainee. According to
Lieutenant Waldie’s declaration, it is a demotion for an FTO to
have his trainee taken away and to be denied any future
opportunities to supervise a trainee. Plaintiff named other FTO’s
whose greater number of absences were not considered an issue
for trainees. Plaintiff acknowledged being unaware of their
individual circumstances.
In his declaration, Lieutenant Waldie stated that it is a
demotion for an FTO to be moved to assistant filing deputy. For
that reason, plaintiff argues he suffered an adverse employment
action.
We conclude the trial court properly found there was no
evidence of any adverse employment actions to support a FEHA
violation. (Hersant v. Department of Social Services (1997) 57
Cal.App.4th 997, 1009 [triable issue of fact as to whether
employer’s reasons for termination were unwise or incorrect is
immaterial; the proper question is whether termination violated
FEHA].) An adverse employment action “ ‘materially affect[s] the
terms and conditions of employment.’ ” (Featherstone v. Southern
California Permanente Medical Group (2017) 10 Cal.App.5th
1150, 1161, quoting Yanowitz v. L’Oreal USA, Inc., supra, 36
Cal.4th at p. 1051, fn. 9, italics added by Featherstone.) “A
change that is merely contrary to the employee’s interests or not
to the employee’s liking is insufficient.” (Akers v. County of San
Diego (2002) 95 Cal.App.4th 1441, 1455.) “ ‘If every minor change
in working conditions or trivial action were a materially adverse
30
action then any “action that an irritable, chip-on-the-shoulder
employee did not like would form the basis of a discrimination
suit.” [Citation.]’ [Citation.] The plaintiff must show the
employer’s retaliatory actions had a detrimental and substantial
effect on the plaintiff’s employment.” (McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)
As for the FTO position, as stated, plaintiff insists that
Sergeant Barragan forced him to relinquish the position and
typed the memorandum to that effect. Barragan and Master
FTO Romero attested in their declarations that it was plaintiff’s
idea to “pause” his FTO duties and plaintiff typed the
memorandum himself. That evidentiary conflict is beside the
point. There is no triable issue of fact that plaintiff was never
told he could not return as an FTO, was paid while he was an
FTO, is still identified by the sheriff’s department as an FTO, and
has not asked to reassume his position as an FTO. There was no
adverse employment action.
Whether the position of assistant filing deputy is a
“demotion” or a subordinate position does not raise a triable issue
of material fact. Although plaintiff did not request the transfer,
it was offered to him. This happened while his transfer to the
Pico Rivera station was pending. Plaintiff points to Patten v.
Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378[disapproved on another ground in Lawson v. PPG Architectural
Finishes, Inc. (2022) 12 Cal.5th 703, 712, 718, fn. 2] as
dispositive. However, that case does not help him for many
reasons, the least of which is it involved a transfer that was not
voluntarily accepted. (Patten, at p. 1382.) Further, the case does
not support the proposition that assignment to a less preferred
position alone constitutes an adverse employment action.
31
Finally, even if there were solid undisputed evidence to
support plaintiff’s claim that he was retaliated against by the
Executioners, the FEHA antiretaliation provision does not
protect against retaliation for opposing conduct that is not
forbidden by FEHA—like reporting the fistfight. (Chen v. County
of Orange (2002) 96 Cal.App.4th 926, 950.)
FEHA creates an actionable tort for an employer’s failure
to take all reasonable steps to prevent unlawful discrimination,
harassment, or retaliation, which is plaintiff’s second FEHA
cause of action. (Trujillo v. North County Transit Dist. (1998) 63
Cal.App.4th 280, 286; §12940, subd. (k).) It is, however, a
derivative claim; a failure to prevent cause of action necessarily
requires the underlying unlawful retaliatory conduct. Without it,
the employer cannot be held liable. (Trujillo, at p. 289.)
D. Plaintiff’s Whistleblower Retaliation Cause of
Action under Labor Code Section 1102.5.
By its very terms, Labor Code section 1102.5, subdivision
(b) prohibits employer retaliation when an employee discloses
information if the employee “has reasonable cause to believe”
that the information discloses a violation of a statute, rule or
regulation. (See Lab. Code, § 1102.5, subd. (e) [which applies to
“[a] report made by an employee of a government agency to their
employer”].) Thus, an employee engages in protected activity
when he or she reports “ ‘ “reasonably based suspicions” of illegal
activity.’ ” (See Ferrick v. Santa Clara University (2014) 231
Cal.App.4th 1337, 1345.)
“The elements of a [Labor Code] section 1102.5(b)
retaliation cause of action require that (1) the plaintiff establish a
prima facie case of retaliation, (2) the defendant provide a
legitimate, nonretaliatory explanation for its acts, and (3) the
32
plaintiff show this explanation is merely a pretext for the
retaliation.” (Patten v. Grant Joint Union High School Dist.,
supra, 134 Cal.App.4th at p. 1384.) The first element,
establishing a prima facie case, requires a plaintiff to show (1) he
engaged in a protected activity, (2) his employer subjected him to
an adverse employment action, and (3) there is a causal link
between the two. (Ibid.)
As discussed, no genuine issue of material fact exists that
plaintiff was subjected to an adverse employment action.
Summary judgment was proper. For that reason, we need not
decide whether plaintiff was engaged in protected activity for
purposes of a Labor Code section 1102.5 violation. Plaintiff did
not witness the fight he reported; he was told about it. Plaintiff
maintained he was calling internal affairs about a crime, assault
and battery, a violation of state law.13 However, rather than
acting as a whistleblower, plaintiff’s conduct could be construed
as complaining about an internal personnel matter between two
work colleagues. (See Patten v. Grant Joint Union High School
Dist., supra, 134 Cal.App.4th at p. 1385.)
IV. Award of Costs
The trial court denied plaintiff’s motion to strike the
County’s costs and awarded the County $13,943.84 in costs. An
award of fees to a defendant is appropriate under section 12965,
subdivision (c)(6) when “ ‘ “the action brought is found to be
unreasonable, frivolous, meritless or vexatious.” ’ ” (Bond v.
13 The cause of action does allege plaintiff suffered adverse
employment actions for “protesting or opposing” violations of
Penal Code section 240 (assault) and Penal Code section 243,
subdivision (d) (aggravated battery), which suggests protected
activity.
33
Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921–922);
see Cummings v. Benco Building Services (1992) 11 Cal.App.4th
1383, 1387.) “Meritless” is defined as “groundless or without
foundation, rather than simply as the fact that the plaintiff
ultimately lost.” (Bond, supra, at p. 922.) “ ‘[V]exatious’ does not
imply that plaintiff’s subjective bad faith is a necessary
prerequisite to an award of attorney fees to defendant” (ibid.), but
“ ‘if a plaintiff is found to have brought or continued such a claim
in bad faith, there will be an even stronger basis for charging him
with the attorney’s fees incurred by the defense.’ ” (Id. at p. 925.)
We review the trial court’s ruling for an abuse of discretion.
(Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989.)
Following a hearing, the trial court issued a lengthy minute
order expressly finding that plaintiff’s action was “frivolous,
unreasonable, and groundless,” and detailing its reason for those
findings. Plaintiff does not seriously dispute the court’s findings
on appeal, merely contending that reversal of the summary
judgment requires reversal of the cost award for the County.
Having reviewed the entire record, we agree with the trial
court for the reasons it stated. There was no abuse of discretion.
Additionally, we are troubled by the conduct of plaintiff’s counsel
toward both the County’s counsel and particularly the court. We
appreciate the vigorous advocacy of attorneys in representing
their clients, but sarcasm, personal attacks, and an obvious lack
of respect are not acceptable in the courtroom. Such behavior
undermines the attorneys’ credibility and hurts the clients.
34
DISPOSITION
The judgment is affirmed. The County is entitled to its
costs on appeal.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
35