Scott v. Burbank Unified School District CA2/5 ( 2023 )

Filed 5/24/23 Scott v. Burbank Unified School District CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
SYLVIA VERONICA SCOTT, B314618
Plaintiff and Appellant, (Los Angeles County Super.
Ct. No. 19STCV08953)
v.
BURBANK UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William D. Stewart, Judge. Affirmed.
Sylvia Veronica Scott in pro per. for Plaintiff and
Appellant.
Atkinson, Andelson, Loya, Ruud & Romo, Marlon C.
Wadlington and Scott D. Danforth for Defendants and
Respondents.
___________________________
Plaintiff Sylvia Veronica Scott appeals from summary
judgment entered in favor of defendant Burbank Unified School
District in plaintiff’s lawsuit for wrongful termination and other
claims. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In early 2018, plaintiff worked as a substitute teacher for
about two months in the Burbank Unified School District
(District). During her employment, she twice emailed a detective
at the Monrovia Police Department, alleging there was student
drug use, missing children, as well as rapes and murders
committed by school district children. Plaintiff did not relay this
information to the District. On March 12, 2018, several days
after her second email to the detective, the District terminated
plaintiff’s employment.
1. Plaintiff’s Lawsuit for Defamation and Wrongful
Termination
On March 14, 2019, plaintiff sued the District, alleging the
District retaliated against her by terminating her employment
and defaming her. Her complaint alleged six employment-related
causes of action under both state and federal law, and one cause
of action for defamation.1
1 Plaintiff alleged violations of (1) 42 U.S.C. sections 2000-
2000e-17 (Title VII); (2) Government Code, sections 12900 -
12996 (Fair Employment and Housing Act, FEHA); (3) 29 U.S.C.
sections 201-219 (Fair Labor Standards Act, FLSA); (4) 5 U.S.C.
section 2302(b)(8) (Civil Service Reform Act, CSRA);
(5) Government Code, sections 8547 - 8547.15 (Whistleblower
Protection Act, WPA); (6) Labor Code, section 1102.5
(whistleblower retaliation); and (7) Civil Code, sections 45a and
48a (defamation).
2
The case was originally assigned to the Spring Street Los
Angeles Superior Court but was subsequently transferred to the
Burbank Superior Court. In July and September 2019, plaintiff
moved for a change of venue, requesting the case be sent to
Orange County “due to discrimination and hostility.” Both
motions were denied.
2. Motion for Summary Judgment
On February 11, 2021, the District moved for summary
judgment, or in the alternative, summary adjudication on each
cause of action. The District argued that plaintiff’s claims were
principally barred because she had not exhausted administrative
remedies or filed required government claims with the
appropriate agency. The District pointed out that in discovery
responses, plaintiff admitted she failed to file claims under the
Government Claim Act (§ 810 et seq.), or exhaust required
administrative remedies.
The District asserted (1) plaintiff did not exhaust her
administrative remedies as to her Title VII, FEHA, CSRA and
WPA claims; (2) plaintiff failed to file required claims under the
Government Claims Act for her defamation and retaliatory
whistleblower causes of action; (3) the District enjoyed sovereign
immunity under the Eleventh Amendment for claims under the
FLSA; and (4) the CSRA claims did not apply to a school district.
Plaintiff did not initially submit an opposition brief to the
motion. Instead, on May 13, 2021, she filed a document entitled
“Plaintiff’s Separate Statement of Undisputed Material Facts in
Opposition to Defendant’s Motion for Summary Judgment or
Summary Adjudication.” In it, plaintiff argued that on July 13,
All subsequent statutory references are to the Government
Code unless indicated otherwise.
3
2018, she sent an email to the District’s “Risk Management”
office, and this satisfied the government claim requirement.
Without evidentiary authentication, plaintiff attached to her
separate statement her purported email to risk management.
On May 17, 2021, the District filed its reply to plaintiff’s
separate statement. The District explained that plaintiff’s email
to risk management “cannot constitute a complaint to the
[Department of Fair Employment and Housing] DFEH, [Equal
Employment Opportunity Commission] EEOC, [Office of Special
Council] OSC, or State Personnel Board . . . and Plaintiff offers
no legal authority for such a contention.”
One day before the hearing, plaintiff filed an “opposing
motion” to the summary judgment and summary adjudication.
The brief did not address the District’s argument that she had
failed to exhaust administrative remedies and had failed to file
government claims.
3. The Court Grants Summary Judgment
On May 24, 2021, the trial court granted summary
judgment. At the same time, the court issued an order explaining
that it had reviewed plaintiff’s late-filed brief, which did not
change its ruling.
The court ruled: (1) Plaintiff failed to exhaust EEOC,
DFEH, and State Personnel Board administrative remedies
before filing her complaint based on Title VII, the FEHA, and the
WPA. (2) Plaintiff did not file the mandatory government claim
before pursuing her defamation and whistleblower retaliation
causes of action.2 (3) The District was entitled to Eleventh
2 The Court concluded that plaintiff’s only piece of evidence
that could conceivably create a triable issue of fact regarding the
4
Amendment Immunity for the FLSA cause of action. (4) The
CSRA claim could not be brought against the District.
On June 10, 2021, the trial court entered judgment.
Plaintiff appealed.
DISCUSSION
In her opening brief, plaintiff contends she did not assert
claims under the FLSA, CSRA, or the WPA. She mentioned them
only in passing. This eliminates three of her seven causes from
appellate consideration, and we do not discuss these claims
further. Our discussion is limited to plaintiff’s remaining four
claims brought under Labor Code section 1102.5 (whistleblower
retaliation), Civil Code sections 45a and 48a (defamation), FEHA,
and Title VII.
1. Standard of Review
Summary judgment is appropriate “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
satisfies its “burden of showing that a cause of action has no
merit if the party has shown that one or more elements of the
cause of action, even if not separately pleaded, cannot be
filing of a government claim was her July 13, 2018 email to risk
management. However, the court explained it could not consider
the email “directly as not being verified or attested, but the court
does examine it provisionally to determine if it may qualify as
such a claim meeting the claim-filing requirement, and
determines that it does not . . . .” The court observed, “There is
no indication that [the email recipient] or this [risk management]
department has the authority to accept claims against the district
or the power to rule on them. There is simply no suggestion that
a monetary claim was being made.”
5
established, or that there is a complete defense to the cause of
action. Once the defendant or cross-defendant has met that
burden, the burden shifts to the plaintiff or cross-complainant to
show that a triable issue of one or more material facts exists as to
the cause of action or a defense thereto.” (Code Civ. Proc., § 437c,
subd. (p)(2).)
The moving party must support the motion with evidence,
e.g. affidavits, declarations, depositions, admissions, and matters
subject to judicial notice, and the opposing party must oppose the
motion with the like. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843 (Aguilar); Code of Civ. Proc., § 437c,
subd.(b).) When ruling on the motion, the court must consider all
the evidence and all inferences reasonably drawn from it in the
light most favorable to the opposing party. (Aguilar, at p. 843;
Code of Civ. Proc., § 437c, subd. (c).)
“We review the trial court’s grant of summary judgment de
novo, applying the same statutory procedure followed in the trial
court.” (Taylor v. Elliott Turbomachinery Co. Inc. (2009)
171 Cal.App.4th 564, 574.)
2. Plaintiff’s Failure to File a Government Claim Bars
Her Defamation and Whistle Blower Retaliation
Causes of Action
Plaintiff sued the District, a public entity, for defamation
under Civil Code sections 45a and 48a and whistle blower
retaliation under Labor Code section 1102.5. The Government
Claims Act “ ‘ “establishes certain conditions precedent to the
filing of a lawsuit against a public entity. As relevant here, a
plaintiff must timely file a claim for money or damages with the
public entity. ([Gov. Code,] § 911.2.) The failure to do so bars the
plaintiff from bringing suit against that entity. ([Gov. Code,]
6
§ 945.4.)” ’ ” (J.J. v. County of San Diego (2014) 223 Cal.App.4th
1214, 1219.) The Government Claims Act filing requirement
applies to all tort actions, like defamation, and causes of action
alleging violations of Labor Code section 1102.5. (Watson v. State
of California (1993) 21 Cal.App.4th 836, 843 [“It is well settled
that a government claim must be filed with the public entity
before a tort action is brought against the public entity or public
employee.”]; Roger v. County of Riverside (2020) 44 Cal.App.5th
510, 523 [applying Government Claim Act to defamation]; Le
Mere v. Los Angeles Unified Sch. Dist. (2019) 35 Cal.App.5th 237,
245-247 [failure to comply with Government Claims Act barred
Labor Code Section 1102.5 violation].) “[F]ailure to file a claim is
fatal to the cause of action.” (City of San Jose v. Superior Court
(1974) 12 Cal.3d 447, 454.)
Here, plaintiff admitted in discovery responses that she
“did not file a California Tort Claim with Burbank Unified School
District” and that she did not file “a claim, complaint, or charge
with any governmental agency that involved any of the material
allegations made in the Pleadings.”
Plaintiff argues that her July 13, 2018 email to the
District’s “Risk Management” fulfilled the Government Claims
Act filing requirement. We disagree and observe the trial court
rightly declined to consider plaintiff’s purported email as
evidence because it was not authenticated under the Evidence
Code.3 (See Guthrey v. State of California (1998) 63 Cal.App.4th
1108, 1119–1120 [“A motion for summary judgment must be
decided on admissible evidence in the form of affidavits,
declarations, admissions, answers to interrogatories, depositions
3 Plaintiff does not argue on appeal that the email was
legally admissible.
7
and matters of which judicial notice may be taken.”].) Without
an affidavit, declaration, or testimony verifying the email, the
email was not authenticated and thus inadmissible. (J&A Mash
& Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 19 [“To
establish authenticity, the party introducing the writing must
introduce ‘evidence sufficient to sustain a finding that it is the
writing that the proponent of the evidence claims it is’ or
establish ‘such facts by any other means provided by law.’ (Evid.
Code, § 1400.) Simply put, section 1400 requires introduction of
evidence sufficient to find that the writing is as claimed. [T]he
proponent of the documents . . . ha[s] the burden of showing their
authenticity, including the absence of any material alteration.”].)
Plaintiff did not produce evidence that the email was authentic or
that she filed a government claim.
Even if the email were admissible, it would not qualify as a
government claim. Section 915 requires the government claim to
be mailed or personally served on the clerk, secretary, or auditor
of the public entity, or delivered in a manner specifically
authorized by the public entity in an ordinance or resolution.
(§ 915, subd. (a).) Alternatively, the claim is considered
presented to the public entity if the entity’s clerk, secretary, or
auditor, or the Department of General Services actually receives
it. (§ 915, subd. (e).) The “Risk Management” department of the
school district is not listed under the Government Code as an
authorized recipient of a Government Claim. Plaintiff also failed
to comply with the claim amount requirement. (See § 910,
subd. (f) [the government claim shall show the amount claimed if
less than $10,000, and, if the claim exceeds $10,000, whether it is
a limited civil case].) Nothing in the record before us suggests
compliance with these statutes, and plaintiff’s whistleblower
8
retaliation and defamation claims were properly dismissed.
(DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983,
990–992 [failure to comply with Government Claims Act compels
dismissal].)
3. Plaintiff Did Not Exhaust Administrative Remedies
Under FEHA and Title VII
Plaintiff’s FEHA and Title VII claims are barred because
the record does not disclose that plaintiff exhausted her
administrative remedies under either statute.
FEHA. “An employee who wishes to file suit under the
FEHA must exhaust the administrative remedy provided by the
statute by filing a complaint with the DFEH, and must obtain
from the [DFEH] a notice of right to sue. [Citation.] The timely
filing of an administrative complaint before the DFEH is a
prerequisite to the bringing of a civil action for damages.”
(Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th
918, 931 (internal quotation marks omitted); § 12960.)
In her discovery responses, plaintiff stated that she “did not
file a complaint with the Department of Fair Housing and
Employment.” Plaintiff admits her failure to exhaust
administrative remedies; accordingly, she may not pursue her
FEHA cause of action.
Title VII/EEOC. Plaintiff’s remaining claim under title
VII likewise fails. “Before filing suit on a claim under title VII, a
plaintiff must file a charge with the [Equal Employment
Opportunity Commission] and obtain a right-to-sue letter.”
(Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 325;
Fort Bend Cty. v. Davis (2019) ––– U.S. –––– [139 S.Ct. 1843,
1846]; 42 U.S.C. § 2000e-5(f)(1) [“a civil action may be brought”
“after a charge is filed with the Commission.”].)
9
Here, plaintiff’s discovery responses stated she “did not file
with the Equal Employment and Opportunity Commission.” This
admission is fatal to her title VII cause of action.4
DISPOSITION
The judgment is affirmed. Defendant Burbank Unified
School District is awarded costs on appeal.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
4 Plaintiff argues the trial court abused its discretion by
failing to give a discovery cutoff date, providing only three days to
respond to a tentative judgment, refusing to allow amendment of
pleadings, and denying her motions to change venue. We do not
reach the merits of these arguments as plaintiff’s complaint was
barred by her failure to file a Government Claim or exhaust
administrative remedies.
10