Alvarez v. City of Delano CA5 ( 2021 )

Filed 4/6/21 Alvarez v. City of Delano CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
LEONEL ALVAREZ,
F079331
Plaintiff and Appellant,
(Super. Ct. No. BCV-17-101627)
v.
CITY OF DELANO, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
Randall Martin Rumph for Plaintiff and Appellant.
Liebert Cassidy Whitmore, Jesse J. Maddox and Michael D. Youril for Defendant
and Respondent.
-ooOoo-
Plaintiff appeals from an order granting summary judgment in favor of defendant
in an action alleging plaintiff’s employment with defendant was terminated in retaliation
for comments he made at an employee association meeting concerning a loan transaction
between the association and its president, which plaintiff believed violated federal law.
Defendant’s undisputed evidence demonstrated plaintiff did not make a protected
disclosure of information, one of the elements of a prima facie case of violation of the
whistleblower statute plaintiff sued under, because (1) his comments were made to the
association and its members, not to one of the persons or agencies designated in the
statute, and (2) he did not disclose any information, but merely opined, based on facts he
learned from the association and its members, that the transaction was illegal. Plaintiff
failed to raise a triable issue of fact concerning his alleged disclosure, and the trial court
properly granted summary judgment. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, plaintiff, Leonel Alvarez, was hired by defendant, City of
Delano, as a police officer, subject to a one-year probationary period. At three months
and six months, plaintiff received favorable evaluations of his work performance. Within
the first week of his employment, plaintiff joined the Delano Police Officers Association
(the association).1 Between December 5 and December 15, 2016, the association held a
meeting, which plaintiff attended; prior to the meeting, the association sent its members
an email, listing the topics to be covered at the meeting. Among those topics was a loan
the association had made to Corporal Jose Madrigal, who at the time of the December
2016 meeting was president of the association; plaintiff understood the loan was for the
purchase of a personal vehicle.
1 Plaintiff referred to the association as a union, and it apparently entered into a
memorandum of understanding with defendant on behalf of the association members.
2.
Plaintiff testified in his deposition that the association was a tax-exempt
organization under 26 United States Code section 501(c)(3), and Internal Revenue
Service (IRS) regulations prohibited the use of association funds for personal reasons.
The funds belonged to the association members and, when he learned of the Madrigal
loan around August or September of 2016, the fact that some of the members did not
know of the loan led plaintiff to believe it could be seen as embezzlement and was illegal.
At the December 2016 association meeting, the association treasurer, Sergeant
Mario Nunez, initiated a discussion of the loan to Madrigal. Nunez confirmed that the
loan had been made, stated it had been repaid,2 and said it was allowed by the bylaws. A
lot of other association members spoke about the loan before plaintiff did.
Plaintiff spoke near the end of the discussion. He stated the loan was outside the
legal requirements of the IRS under the 26 United States Code section 501(c)(3) charter
that the association worked under. He said the association was not in the business of
being a bank or loaning money, and the association’s money should be used for the
benefit of its members and not for one individual who was not in a needy position, that is,
when it was not an emergency. Plaintiff opined that, if it had been an emergency, the
association could have made a gift of the funds and it would have been acceptable by IRS
standards or regulations, but a loan was not acceptable because the association was not in
the business of making loans. About 20 members spoke about the loan at the December
2016 meeting; half or more of those expressed an opinion the loan was improper or
illegal. At the end of the meeting, plaintiff felt there were financial transactions that
needed an audit to determine whether they were legal or not; the members agreed the
association would talk to an attorney and determine whether the loan portion of the
bylaws needed to be removed.
2 It was undisputed Madrigal paid the loan back about a week after it was made.
3.
On January 9, 2017, plaintiff’s employment was terminated during his
probationary period. The decision to terminate his employment was made by Chief Mark
DeRosia. Plaintiff subsequently filed the complaint in this action, which alleged a single
cause of action for violation of Labor Code section 1102.5,3 a “whistleblower” statute
that protects employees who report conduct believed to be unlawful. The complaint
alleged plaintiff’s employment with defendant was terminated in retaliation for plaintiff
“speaking out about illegal conduct on the part of the [association]” that involved
Madrigal. It alleged Madrigal influenced DeRosia’s decision to terminate plaintiff’s
employment.
Defendant moved for summary judgment, asserting plaintiff could not establish
the elements of protected activity and causation to prove his cause of action. Defendant
also contended it had a legitimate, nonretaliatory reason for plaintiff’s termination that
defeated plaintiff’s claim of retaliation. It contended that, in September 2016, plaintiff
and three other officers traveled to Ridgecrest, California, for a Street Interdiction Team
(SIT) operation, a multi-agency operation for which they were paid overtime.
Subsequently, defendant questioned the amount of time the officers reported on their
timesheets for the SIT operation. When questioned, the officers indicated the time
recorded included the time they spent stopping for dinner on the way back; they thought
they were entitled to a second meal break because they had worked more than 12 hours
that day. On December 29, 2016, when he was told the travel time was excessive,
plaintiff signed a corrected timesheet. DeRosia declared he terminated plaintiff’s
probationary employment because plaintiff “did not meet the standard for what I
expected from a probationary officer,” in that he “falsely reported work time, [and] also
refused to correct it despite being unable to justify it when questioned by a superior.”
3 All further statutory references are to the Labor Code unless otherwise indicated.
4.
Plaintiff opposed defendant’s motion for summary judgment. The trial court
granted the motion, and plaintiff appealed from that order.
DISCUSSION
I. Appealability
Plaintiff purports to appeal from a judgment entered March 19, 2019, after an
order granting summary judgment. The record, however, does not contain a judgment;
March 19, 2019 is the filing date of the minute order granting the motion for summary
judgment. An order granting summary judgment is not an appealable order. The appeal
must be taken from a judgment entered on the basis of the summary judgment order.
(Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) Defendant has not
moved to dismiss the appeal. In the interests of justice and to avoid delay, we construe
the order granting summary judgment as incorporating an appealable judgment, and the
notice of appeal as appealing from that judgment. (H.N. & Frances C. Berger
Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 6–7, fn. 5; Levy, at pp. 761–
762, fn. 7.)
II. Standard of Review
We review the trial court’s grant of a motion for summary judgment de novo,
applying the same standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th
915, 925.) The motion must be granted “if all the papers submitted show that there is no
triable issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary
judgment has met its burden if it “has shown that one or more elements of the [plaintiff’s]
cause of action … cannot be established.” (Id., subd. (p)(2).) If the defendant makes this
showing, “the burden shifts to the plaintiff … to show that a triable issue of one or more
material facts exists as to the cause of action.” (Ibid.)
We consider all of the evidence the parties offered in connection with the motion,
except that which the trial court properly excluded. (Merrill v. Navegar, Inc. (2001)
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26 Cal.4th 465, 476.) “There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We strictly construe the evidence
of the moving party and liberally construe that of the opposing party; we resolve any
doubts as to the propriety of granting the motion in favor of the opposing party. (Zavala
v. Arce, supra, 58 Cal.App.4th at p. 926.)
III. Analysis of Retaliation Claims
In cases alleging retaliatory employment termination, courts apply the three-step
burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
(Bareno v. San Diego Community College Dist. (2017) 7 Cal.App.5th 546, 560; Sada v.
Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155.) First, the plaintiff
must establish a prima facie case of retaliation by showing (1) the employee engaged in a
protected activity, (2) the employer subjected the employee to an adverse employment
action, and (3) there was a causal link between the protected activity and the employer’s
action. (Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1109.)
“If the employee successfully establishes these elements and thereby shows a prima facie
case exists, the burden shifts to the employer to provide evidence that there was a
legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the
employer produces evidence showing a legitimate reason for the adverse employment
action, … the burden shifts back to the employee to provide ‘substantial responsive
evidence’ that the employer’s proffered reasons were untrue or pretextual.” (Ibid.)
In the summary judgment context, an employer/defendant moving for summary
judgment has the initial burden. “If the employer presents admissible evidence either that
one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment
action was based on legitimate, non[retaliatory] factors, the employer will be entitled to
summary judgment unless the plaintiff produces admissible evidence which raises a
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triable issue of fact material to the defendant’s showing.” (Bareno v. San Diego
Community College Dist., supra, 7 Cal.App.5th at p. 561.) To meet that burden, the
plaintiff must produce “ ‘substantial evidence that the employer’s stated reasons were
untrue or pretextual, or that the employer acted with a [retaliatory] animus, such that a
reasonable trier of fact could conclude that the employer engaged in [unlawful
retaliation].’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 861.)
IV. Plaintiff’s Retaliation Claim
Plaintiff’s complaint alleged defendant retaliated against him in violation of
section 1102.5. That section is a whistleblower statute, which “reflects the broad public
policy interest in encouraging workplace whistle-blowers to report unlawful acts without
fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.) It
provides:
“(b) An employer, or any person acting on behalf of the employer, shall not
retaliate against an employee for disclosing information, or because the
employer believes that the employee disclosed or may disclose information,
to a government or law enforcement agency, to a person with authority over
the employee or another employee who has the authority to investigate,
discover, or correct the violation or noncompliance, … if the employee has
reasonable cause to believe that the information discloses a violation of
state or federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation, regardless of whether disclosing the
information is part of the employee’s job duties.
“[¶] … [¶]
“(e) A report made by an employee of a government agency to their
employer is a disclosure of information to a government or law
enforcement agency pursuant to subdivisions (a) and (b).” (§ 1102.5,
subds. (b), (e).)
The complaint alleged that, in mid-December 2016, plaintiff spoke at an
association meeting, expressing concerns that the association president, Madrigal, “was
committing unlawful acts in the performance of his duties, including utilizing
[association] funds for personal use.” It alleged Madrigal influenced DeRosia to
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terminate plaintiff’s employment in retaliation for plaintiff’s statements about illegal
conduct by the association. Thus, the comments plaintiff made at the association meeting
form the basis of plaintiff’s claim of retaliatory termination.
A. Protected disclosure
The first ground defendant asserted in support of its motion for summary judgment
was that plaintiff could not establish a prima facie case of retaliation under section 1102.5
because he could not demonstrate he made a protected disclosure. Section 1102.5
protects the disclosure of a violation of law “to a government or law enforcement agency,
to a person with authority over the employee or another employee who has the authority
to investigate, discover, or correct the violation or noncompliance.” (§ 1102.5, subd. (b).)
Plaintiff’s claimed disclosure was not made to “a government or law enforcement
agency,” including the government agency by which plaintiff was employed. It was
made to the association of police officers. The association was not plaintiff’s employer,
or a government or law enforcement agency. The disclosure also was not made to “a
person with authority over the employee or another employee who has the authority to
investigate, discover, or correct the violation or noncompliance.” It was made to
members of the association and members of the governing board of the association
during an association meeting. Those attending the meeting were present as members
and board members of the association, not as representatives or employees of defendant,
and not as persons with authority over plaintiff as an employee.
Plaintiff also did not make a “disclosure,” as that term is used in section 1102.5.
In Mize-Kurzman v. Marin Community College Dist. (2012) 202 Cal.App.4th 832 (Mize-
Kurzman), a community college administrator sued her employer, alleging her
responsibilities were taken away and she was assigned to a different position in
retaliation for complaints she made to her immediate supervisor and to the president of
the district concerning actions by the college that the plaintiff believed were illegal. (Id.
at pp. 839–843.) The plaintiff alleged the actions the college took after her complaints
8.
violated section 1102.5. (Mize-Kurzman, at pp. 843–844.) The jury found in favor of
defendant, and plaintiff appealed. (Id. at p. 844.) She challenged certain of the jury
instructions, including an instruction that “ ‘[r]eporting publicly known facts is not a
disclosure of information’ ” under the statute. (Id. at pp. 844–845.)
The court found that, because of a dearth of California law on “what constitutes
‘disclosing information,’ ” as that term was used in section 1102.5, the trial court had
properly relied on federal law interpreting similar federal whistleblower statutes. (Mize-
Kurzman, supra, 202 Cal.App.4th at pp. 846–849.)4 The court found the instruction was
proper. It was supported by federal cases that held “the report of information that was
already known did not constitute a protected disclosure.” (Id. at p. 858.) The court
construed “the term ‘disclosure’ consistent with its ‘ordinarily understood meaning.’
[Citation.] ‘[T]he term “disclosure” means to reveal something that was hidden and not
known.’ ” (Ibid.) The court found “no reason to believe the terms [disclosing and
discloses] were being used in anything other than their ordinary sense.” (Id. at pp. 858–
859.)
Additionally, the court’s interpretation was consistent with “cases holding that the
employee’s report to the employee’s supervisor about the supervisor’s own wrongdoing
is not a ‘disclosure’ and is not protected whistleblowing activity, because the employer
already knows about his or her wrongdoing.” (Mize-Kurzman, supra, 202 Cal.App.4th at
p. 859.) “[C]riticism delivered directly to the wrongdoers does not further the purpose of
either the federal … or the California whistleblower laws to encourage disclosure of
wrongdoing to persons who may be in a position to act to remedy it.” (Ibid.) The court
4 “Although the language of the federal [Whistleblower Protection Act] describing the
conduct protected under that act [citation] and conferring an individual right of action on the
employee [citation], is not the same as used in the California statutes, the language and purpose
of the statutes are sufficiently close to permit the court to use federal authorities as a guide to
interpretation of these California whistleblower protection statutes.” (Mize-Kurzman, supra,
202 Cal.App.4th at pp. 848–849, fns. omitted.)
9.
concluded the trial court “did not err in instructing that reporting publicly known facts is
not a disclosure protected by the California whistleblower statutes.” (Ibid.)
The trial court cited Mize-Kurzman in making its ruling on defendant’s motion for
summary judgment. Plaintiff asserts that case represents outdated law because of a
subsequent amendment to section 1102.5. Effective in 2014, after the decision in Mize-
Kurzman, the Legislature amended section 1102.5, subdivision (b) to protect not only
disclosures of information “to a government or law enforcement agency,” but also
disclosures of information “to a person with authority over the employee or another
employee who has the authority to investigate, discover, or correct the violation or
noncompliance.” (Stats. 2013, ch. 781, § 4.1.) Plaintiff interprets the amendment as
extending protection to an employee’s report of alleged illegal conduct, made directly to
the supervisor who engaged in the wrongdoing. He contends reports of “already known”
information are now protected, and only reports of “publicly known” information are
outside the statute’s protection. We disagree with his interpretation.
Mize-Kurzman did not distinguish between “already” known information and
“publicly” known information. It discussed a jury instruction that “[r]eporting publicly
known facts is not a disclosure of information” for purposes of the statute. (Mize-
Kurzman, supra, 202 Cal.App.4th at pp. 845, 858–859.) The term “publicly known” was
the term used by the trial court in its jury instructions, which the appellate court, of
necessity, discussed in determining the propriety of the instruction. It concluded,
however, that a “report of information that was already known did not constitute a
protected disclosure.” (Id. at p. 858, italics added.) Contrary to plaintiff’s suggestion,
that conclusion was not based solely on the rule that an employee’s report to the
employee’s supervisor about the supervisor’s own wrongdoing was not a protected
disclosure under the statute. The Mize-Kurzman court’s conclusion was based on the
plain meaning of the term “disclosure” and on federal cases holding that a report of
information that was already known was not a protected disclosure. (Id. at pp. 858–859.)
10.
The court added that its conclusion was also consistent with the rule excluding protection
for reporting wrongdoing directly to the wrongdoing supervisor. (Id. at p. 859.)
At the time of the Mize-Kurzman decision, section 1102.5, former subdivision (e)
provided “that ‘[a] report made by an employee of a government agency to his or her
employer is a disclosure of information to a government or law enforcement agency …’
subject to the statute’s protections.” (Mize-Kurzman, supra, 202 Cal.App.4th at p. 856;
citing Stats. 2013, ch. 781 § 4.1.) The 2014 amendment of section 1102.5 changed
subdivision (b) by adding to the description of protected disclosures those made “to a
person with authority over the employee or another employee who has the authority to
investigate, discover, or correct the violation or noncompliance.” (Stats. 2013, ch. 781,
§ 4.1.) Unlike section 1102.5, subdivision (e), the provision added to section 1102.5,
subdivision (b) in 2014 was not limited to government agencies and their employees but
would apply to private employers. The amendment clarified the persons within the
employer’s organization to whom a protected disclosure could be made. It did not
address reports made directly to the wrongdoer or to any representative of the employer
who already knew of the allegedly illegal conduct. It continued to define the protected
behavior using variants of the term “disclose.” The amendment did not manifest a
legislative intent to expand whistleblower protection to include employee statements
concerning allegedly illegal conduct that was already well known to the employer.
In Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538 (Hager), the
plaintiff alleged his employment as a deputy sheriff had been terminated in retaliation for
disclosing information from an informant that a missing deputy sheriff had been
murdered and that another deputy might have been involved. (Id. at p. 1542.) In March
2000, the assistant sheriff was briefed on the plaintiff’s information and ordered the
plaintiff not to investigate the deputy’s disappearance or wrongdoing by other deputies;
he ordered the plaintiff to pass on any information the plaintiff obtained on those subjects
to the homicide bureau. (Id. at p. 1543.) In September 2000 and again in May 2001, the
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plaintiff prepared a summary of the information the task force he worked with had
received about the deputy’s disappearance. (Id. at pp. 1543–1544.) A subsequent
investigation of that information, conducted by another officer, discredited the
information. (Id. at pp. 1544–1545.) After an investigation and hearings, the plaintiff
was terminated for violating the order not to investigate the deputy’s disappearance and
for misrepresenting to his superiors the content of wiretapped conversations. (Id. at
pp. 1545–1546.)
Relying on Mize-Kurzman, the defendant argued the plaintiff did not disclose
information under section 1102.5 because other deputies had already reported that
information. (Hager, supra, 228 Cal.App.4th at p. 1548.) The court noted the question
was whether the plaintiff had disclosed protected information in March 2000, because
anything reported after that date was not “ ‘blowing the whistle,’ ” but was reported up
the chain of command because the plaintiff was ordered to do so. (Ibid.)
The Hager court rejected the defendant’s argument, based on Mize-Kurzman, that
only the first employee who disclosed a violation of law was protected from retaliation by
section 1102.5. (Hager, supra, 228 Cal.App.4th at p. 1549.) It noted Mize-Kurzman
“never considered whether a second employee who disclosed the same unlawful activity
… would or would not have been protected” by the statute. (Hager, at p. 1549.) The
Hager court accepted the dictionary definition of “ ‘disclosure’ ” that Mize-Kurzman
relied on, but also considered the language of section 1102.5, subdivision (e), which
provided that a “ ‘report’ ” by an employee of a government agency to the employing
agency was a disclosure of information, as that term was used in section 1102.5,
subdivision (b). (Hager, at pp. 1549–1550.) “A report does not necessarily reveal
something hidden or unknown.” (Id. at p. 1550.)
The court also concluded limiting the statutory protection to the first report of
information would be contrary to the legislative intent behind the statute. “Protection
only to the first employee to disclose unlawful acts would defeat the legislative purpose
12.
of protecting workplace whistleblowers, as employees would not come forward to report
unlawful conduct for fear that someone else already had done so. The ‘first report’ rule
would discourage whistleblowing.” (Hager, supra, 228 Cal.App.4th at p. 1550.) The
court noted “[t]he report of ‘publicly known’ information or ‘already known’ information
is distinct from a rule in which only the first employee to report or disclose unlawful
conduct is entitled to protection from whistleblower retaliation.” (Id. at p. 1552.)
Thus, at the outset, the Hager court recognized that any disclosures or reports of
information after March 2000 were not within the statutory protection. By focusing only
on disclosures in March 2000, the court implicitly determined that subsequent reports of
information were not protected because the basic information was already known to the
employer, and anything further was provided at the behest of the employer to update the
ongoing investigation.
While the employee’s report of allegedly unlawful conduct need not be the “first
report” in order to constitute a protected disclosure under section 1102.5, we have found
nothing in the cases to support a rule that any subsequent report by another employee of
the same information to a government agency, a law enforcement agency, or the
employer, is a protected disclosure unless the information is known to the general public.
In Hager, once the plaintiff and others disclosed the information to the plaintiff’s
employer in March 2000, it was known to the employing law enforcement agency and to
the other law enforcement agencies participating with it in the task force. Further
disclosures of the same information were not protected. There was nothing in the case
indicating the information was ever known to the general public.
The purpose of section 1102.5 is “to ‘encourag[e] workplace whistle-blowers to
report unlawful acts without fearing retaliation.’ ” (Soukup v. Law Officers of Herbert
Hafif (2006) 39 Cal.4th 260, 287.) Whistleblower protection is important because
employees are generally in the best position to observe and report unlawful activities in
the workplace. Hager rejected an interpretation of section 1102.5 that would protect only
13.
the first employee’s report of information regarding a violation of law, because it would
discourage employees from coming forward and reporting unlawful conduct out of fear
their report would not be the first, and therefore would not be protected. (Hager, supra,
228 Cal.App.4th at pp. 1549–1550.) That rationale would not support protecting every
subsequent report of the same information. There would be no need to encourage
disclosure by employees who actually know that the alleged wrongdoing has already
been reported or is already generally known by the employer, who is investigating or
acting on it. An employee would have no reason to believe he or she was acting as a
whistleblower, or was in need of protection from retaliation, when the employee merely
repeated information the employee knew had already been reported, or information the
employee had learned from the employer itself.
In this case, as previously discussed, plaintiff’s claim of retaliation is not based on
a report of information to a government agency, a law enforcement agency, or any
representative of his employer. Even assuming for the sake of argument that a disclosure
of information to the association concerning an alleged violation of law by the
association or its board could constitute a protected disclosure within the statute,
plaintiff’s statements at the association meeting were not “disclosures” within the
protection of the statute. Plaintiff had no personal knowledge of the loan transaction.
The uncontradicted evidence demonstrated the loan was made in 2015, before plaintiff
was employed by defendant or became a member of the association. Plaintiff testified in
deposition that he learned of the association’s loan to Madrigal from “a lot of people” and
from the association itself, when it sent a notice of the December 2016 meeting and a list
of the topics to be covered at the meeting. The list of topics included the loan from the
association to Madrigal. Plaintiff admitted he did not know for sure the loan had been
made until it was confirmed by a board member at the December 2016 association
meeting.
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Plaintiff presented no evidence showing that he disclosed or reported any facts
pertaining to the loan transaction at the meeting. Rather, he claims his protected
disclosure was his opinion that the loan transaction was illegal because it did not comply
with IRS regulations governing 26 United States Code section 501(c)(3) organizations
like the association. Mize-Kurzman, however, noted that under the federal whistleblower
statute, “where a government employee reports to a wrongdoer that the conduct engaged
in by the wrongdoer is unlawful, ‘the report would not be a protected disclosure.… [T]he
disclosure must pertain to the underlying conduct, rather than to the asserted fact of its
unlawfulness or impropriety, in order for the disclosure to be protected.’ ” (Mize-
Kurzman, supra, 202 Cal.App.4th at p. 859, fn. 11; accord, Lindsey v. Clatskanie
People’s Utility District (D.Or. 2015) 140 F.Supp.3d. 1077, 1092–1093 [“ ‘the disclosure
must reveal previously unknown conduct in order to be protected activity; it is
insufficient to merely identify or label conduct which is known to have occurred as either
unlawful or improper’ ”].)
When plaintiff spoke at the December 2016 association meeting, he had no reason
to believe he was acting as a whistleblower, making a protected disclosure of information
to bring to the association’s attention facts constituting a violation of state or federal
statute. Plaintiff knew the association, its board, and all the members who received
notice of the meeting were already aware of the loan transaction. The association’s
treasurer introduced the subject at the meeting and set out the facts surrounding the loan.
He explained there had been a loan to a board member, it had been paid back, and the
association’s bylaws allowed it. Other members spoke before plaintiff; 10 or more of the
20 who spoke expressed opinions like plaintiff’s, that the loan was improper or illegal.
Near the end of the discussion, plaintiff stated the loan was outside the requirements of a
26 United States Code section 501(c)(3) organization; because the association was not in
the business of making loans, its money should be used for the benefit of the association
and not for an individual member, unless it was an emergency. By the end of the
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meeting, plaintiff felt there were financial transactions that needed to be audited to
determine whether they were legal or not. He understood the association would talk to an
attorney and determine whether the bylaws regarding loans needed to be amended.
Plaintiff did not disclose information he believed was not yet known to the
association about a transaction he believed violated the law. Rather, he engaged in a
discussion with other members of the association about a transaction, the facts of which
the association had already disclosed to its members, including plaintiff. The discussion
and plaintiff’s participation in it did not constitute a disclosure within the statutory
protection.
We conclude defendant met its burden of demonstrating plaintiff could not
establish the elements of a prima facie case of retaliation under section 1102.5. The
undisputed facts demonstrated plaintiff made no disclosure of information to any of the
persons or entities specified in the statute. Further, he did not disclose any information
regarding the loan transaction. The facts of the transaction were already known by the
association, its board, and the members who were present when plaintiff allegedly made
his disclosure, and plaintiff was aware that those to whom his comments were made
already knew the facts of the transaction, which he simply labeled as illegal. Plaintiff
failed to raise a triable issue of material fact regarding the essential element of a protected
disclosure of information. As a result, he failed to raise a triable issue of material fact in
response to defendant’s showing that he could not establish a prima facie case of
retaliation in violation of section 1102.5. Consequently, the trial court properly granted
defendant’s motion for summary judgment.
Because the inability to establish a prima facie case of retaliation is dispositive of
plaintiff’s claim, we need not address defendant’s assertion that it had a legitimate,
nonretaliatory reason for terminating plaintiff’s employment, or plaintiff’s contention that
any such reason was pretextual.
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DISPOSITION
The judgment is affirmed. Defendant is entitled to its costs on appeal.
HILL, P.J.
WE CONCUR:
PEÑA, J.
SNAUFFER, J.
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