Vargas v. City of Long Beach CA2/5 ( 2024 )

Filed 9/6/24 Vargas v. City of Long Beach 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
ALBERTO VARGAS, et al., B321208
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC675610)
v.
CITY OF LONG BEACH,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Holly J. Fujie, Judge. Affirmed.
Law Office of Gregory W. Smith, Gregory W. Smith and
Diana Wang Wells, Benedon & Serlin, Douglas G. Benedon and
Judith E. Posner, for Plaintiffs and Appellants.
Rutan & Tucker, Samantha Lamm, for Defendant and
Respondent.
I. INTRODUCTION
Plaintiffs,1 two former City of Long Beach (the City) police
officers, appeal from the judgment entered after the trial court
granted summary judgment on their claims against the City for
whistleblower retaliation under Labor Code section 1102.5
(section 1102.5) and retaliation under FEHA.2 According to
plaintiffs, the trial court erred when it: excluded evidence under
the doctrine of issue preclusion; determined the City’s motion on
their section 1102.5 claim under the wrong legal standard; and
concluded that there were no triable issues of fact on their two
claims. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiffs’ Prior Litigation
Vargas began his employment as a police officer for the
City in 1994, and Orduno began his employment as an officer in
1999.
In 1997, 2004, and 2006, Vargas sued the City for FEHA
violations. In August 2014 and April 2015, Vargas and Orduno
sued the City for FEHA and Labor Code violations, and those two
cases were consolidated (consolidated action) and resolved
against plaintiffs on summary judgment. Finally, on March 28,
1 Plaintiffs are Alberto Vargas and Pablo Orduno.
2 FEHA is an acronym for the Fair Employment and Housing
Act, Government Code section 12900 et seq.
2
2017, Vargas filed another action against the City for retaliation
under FEHA.
B. Internal Affairs Investigation
On April 18, 2016—four days after the trial court in the
consolidated action issued its order granting the City’s summary
judgment motion—the City opened an internal affairs
investigation into allegations that Vargas and Orduno had made
untruthful statements in verified written discovery responses
they submitted in support of their claims in that action.
The City’s administrative complaint against Vargas listed
three allegations of untruthfulness: (1) in written discovery
responses dated May 1, 2015, and December 1, 2015, Vargas was
untruthful when he asserted that he had been selected for the
role of acting sergeant on multiple occasions prior to complaining
about detrimental comments made by Lieutenant Christopher
Klein; (2) in written discovery responses dated February 27,
2015, Vargas was untruthful when he asserted that he had
previously filed a race discrimination complaint against the City
that ended with a judgment in his favor; and (3) in written
discovery responses dated April 7, 2016, Vargas was untruthful
when he asserted that he was denied further access to overtime.
City decision makers sustained the three allegations against
Vargas.
The City’s administrative complaint against Orduno listed,
among others, three allegations of untruthfulness: (1) in written
discovery responses dated February 27, 2015, Orduno was
untruthful when he asserted that he had complained about the
City’s treatment of Vargas and Lieutenant Klein’s comments
3
about Vargas; (2) in written discovery responses dated February
27, 2015, Orduno was untruthful when he asserted that he
experienced a lack of assistance on traffic stops which was a
noticeable difference from the assistance he received prior to
being required by the City to wear an audio recorder; and (3) in
written discovery responses dated April 7, 2016, Orduno was
untruthful when he asserted that he experienced difficulty in
complying with the requirement to issue seven traffic violations
in a five hour period. City decision makers sustained the three
allegations against Orduno.
On April 5, 2017, Vargas and Orduno were notified in
writing that the allegations of untruthfulness against them had
been sustained. On May 23, 2017, Vargas and Orduno were both
notified in writing that they had been dismissed from their
employment as police officers with the City.
C. Instant Complaint
On September 13, 2017, plaintiffs filed the instant
complaint against the City asserting causes of action for
retaliation in violation of FEHA (Gov. Code, § 12940, subdivisions
(a) and (h)) and violation of the whistleblower protections
provided by section 1102.5.
In their FEHA claim, plaintiffs alleged that: (1) “In or
about 2004, 2006, 2015, and 2017, . . . Vargas filed separate and
distinct FEHA Discrimination and/or Retaliation cases and
actively participated in litigation against the City . . . . Vargas
also acted in the capacity of a witness and testified on behalf of
Orduno in his FEHA case”; (2) “[i]n or about 2015, . . . Orduno
filed a FEHA [r]etaliation case against the City . . . . Orduno also
4
acted in the capacity of a witness and testified on behalf of
Vargas in his FEHA case”; (3) “[a]s a result of multiple filings and
lawsuits by Vargas pursuant to [FEHA], . . . the testimony of
Vargas on behalf of Orduno in the 2015 FEHA lawsuit, and
engaging in other protected activities as described above, the
[City] retaliated against . . . Vargas by wrongfully terminating
him”; and (4) “[a]s a result of filing a DFEH Complaint pursuant
to [FEHA], testifying on behalf of Vargas, and being associated
with Vargas, . . . Orduno was wrongfully terminated by the City
. . . .”
In their section 1102.5 cause of action, plaintiffs alleged
that: “[The City] retaliated against [them] for filing, engaging in
litigation, and testifying in litigation as authorized by . . .
Government Code section 12940 et seq. Said retaliation was
based upon [p]laintiffs’ disclosure of . . . Government Code section
12940 violations and because [p]laintiffs refused to refrain from
filing claims against the City . . . for violations [of] . . .
Government Code section 12940.” (Emphasis omitted.) Their
disclosures were legally protected activities under section 1102.5
and Labor Code section 1102.6 as they “had reasonable cause to
believe” the information reported violated Government Code
section 12940. The City retaliated against them by wrongfully
terminating their employment.
D. Summary Judgment Proceedings
1. The City’s Motion
On August 31, 2021, the City filed a motion for summary
judgment, arguing that there was no merit to the FEHA
5
retaliation claim because plaintiffs could not show they had
engaged in protected activities under FEHA. According to the
City, Vargas’s 2004 and 2006 lawsuits were too remote in time to
support an inference of retaliation and plaintiffs did not have an
objectively reasonable belief that, by filing the consolidated
action,3 they were reporting FEHA violations. They also argued
that the doctrine of issue preclusion barred plaintiffs from
relitigating the issues that were decided against them in the
consolidated action.
The City also maintained that the section 1102.5 claim had
no merit for similar reasons, namely, that plaintiffs could not
show an objectively reasonable belief that, in pursuing the
consolidated actions, they were engaging in activity protected by
the whistleblower provisions of that statute.
In addition, the City asserted that there was no causal link
between plaintiffs’ activities and their terminations; it had
independent and nonretaliatory reasons for terminating
plaintiffs; and plaintiffs could not show the City’s reasons were
pretextual.
2. The City’s Evidence
The City supported its motion with, among other evidence,
plaintiffs’ interrogatory responses and contradictory deposition
testimony that the City decision makers considered in sustaining
3 The City also argued that Vargas could not have had a
reasonable belief that the City decided to terminate him on
March 29, 2017, in retaliation for his act of filing of the 2017
lawsuit, which he filed just one day earlier on March 28, 2017.
6
the allegations of untruthfulness and declarations from the City’s
Chief of Police, Robert Luna, and Commander Jeff Berkenkamp.
a. Discovery Responses and Testimony
In supplemental responses to special interrogatories, set
one, dated May 1, 2015, and verified responses to special
interrogatories, set two, dated December 1, 2015, Vargas stated
that prior to complaining about Lieutenant Klein’s detriment
comments in February 2014, he “was selected for the acting
sergeant role on a multitude of occasions; thus demonstrating
that he [was] qualified to fill that position.” The verification form
attached to the responses to special interrogatories, set two, bore
Vargas’s signature and was undated. By signing the form,
Vargas declared under penalty of perjury that he had read the
responses, knew of their contents, and the responses were true.
But, he later testified in deposition that he never served in the
role of acting sergeant during his employment with the City, had
never spoken to anyone about the process involved in being
selected to serve in that role, and had never asked to be assigned
to serve in that position.
In verified responses to form interrogatories dated
February 27, 2015, Vargas stated that “[i]n or about 2008, [he]
filed a race/national origin lawsuit against the [City], and it
concluded with a judgment in his favor.” The verification form
attached to the responses bore Vargas’s signature and was dated
February 27, 2015. By signing the form, Vargas declared under
penalty of perjury that he had read the responses, knew of their
contents, and the responses were true. It was undisputed,
7
however, that prior to the consolidated action, Vargas had never
filed a race or national origin lawsuit against the City.
In verified responses to supplemental interrogatories dated
April 7, 2016, Vargas stated multiple times that he was denied
access to grant overtime. The verification form attached to the
interrogatories bore Vargas’s signature and was dated April 7,
2016. By signing the form, Vargas declared under penalty of
perjury that he had read the responses, knew of their contents,
and the responses were true. In his deposition, when asked if he
had been denied grant overtime, Vargas answered, “No.” He also
confirmed that on the one occasion when other officers were
offered extra grant overtime of which he was not aware, the
sergeant in charge of making those assignments offered him four
slots of overtime to make up for it and that he never asked the
sergeant if there was any additional grant overtime available or
told him that he was interested in additional overtime if it was
available.
In Orduno’s verified responses to special interrogatories
dated February 27, 2015, he stated that he complained to
superiors about Lieutenant Klein’s alleged statement that Vargas
was a detriment. The verification form bore Orduno’s signature
and was dated February 27, 2015. By signing the form, Orduno
declared under penalty of perjury that he had read the responses,
knew of their contents, and the responses were true. But in
deposition, when asked if he had ever complained to his
supervisor about Lieutenant Klein’s detriment statement,
Orduno explained that he did not complain, as he had nothing to
complain about; the statement had not been made about him or
his performance. In the same verified responses, Orduno stated
multiple times that he experienced a lack of assistance on traffic
8
stops which was a noticeable difference from the assistance he
received before he was required to wear an audio recorder. But
in deposition, he testified that, during the six months that the
City required him to wear an audio recorder, he never had an
incident during which he asked for assistance with a traffic stop
and “no one responded to the scene despite [his] request.”
Finally, in verified responses to supplemental
interrogatories dated April 7, 2016, Orduno stated that he found
it difficult to write seven traffic citations in a five-hour period.
The verification form bore Orduno’s signature, was dated April 7,
2016, and included the same declaration, under penalty of
perjury, regarding Orduno’s knowledge of the content of the
responses and their truthfulness. In his deposition, however,
Orduno confirmed that, on average, he would write 12 to 20
citations in a five-hour period; it was not difficult to issue seven
or eight citations in a five-hour overtime period; and the number
was so low that it was “laughable.”
b. Chief Luna Declaration
According to Chief Luna, the City terminated plaintiffs
after an internal affairs investigation determined that, during
the consolidated action, they had made untruthful statements
and had contradicted those responses in subsequent deposition
testimony. He confirmed that the untruthful statements made by
plaintiffs were the sole basis of the City’s decision to terminate
plaintiffs.
Chief Luna also explained that he was appointed to his
current position in November 2014, and since that time, in cases
in which an internal affairs investigation resulted in a sustained
9
finding of untruthfulness, it had been his “uniform practice . . . to
recommend to the City [m]anager [that] the employee be
dismissed.”
c. Berkenkamp Declaration
Commander Berkenkamp explained that he had been
assigned to review the investigative materials prepared by the
City’s internal affairs division and to prepare a letter of
transmittal to Chief Luna containing his findings about whether
the allegations of untruthfulness against plaintiffs were
sustained or not sustained. On March 28, 2017, he submitted his
letter of transmittal setting forth his findings and recommending
plaintiffs’ termination. He based his recommendation on his
findings and conclusion that plaintiffs had been untruthful.
Berkenkamp participated in the March 29, 2017, final
meeting concerning the internal affairs investigation held in
Chief Luna’s conference room attended by, among others, Luna,
and Deputy Chiefs David Hendricks, Michael Beckman, and
Richard Conant. He reviewed with those present his letter of
transmittal, the allegations against plaintiffs, his findings, and
his recommended disposition of each allegation, that is, sustained
or not sustained. When asked by Chief Luna for his
recommendation, Berkenkamp replied that he recommended
dismissal of both plaintiffs based on the sustained allegations of
untruthfulness. The three deputy chiefs all agreed with his
recommendation to dismiss plaintiffs because of the sustained
allegations of untruthfulness. Chief Luna then announced his
decision to dismiss plaintiffs based on the sustained allegations of
10
untruthfulness. On May 17, 2017, the City sent plaintiffs notice
of their dismissal.
3. Plaintiffs’ Opposition
Plaintiffs filed an opposition to the motion, arguing that
(1) their prior lawsuits constituted protected activity; (2) the only
protected acts upon which they were relying were the prior
lawsuits they filed against the City and the acts each of them
took during those actions to support the other; (3) on their section
1102.5 claim, the doctrine of issue preclusion did not prevent
them from relying on the consolidated action to show that they
engaged in protected activity because they had a reasonable and
good faith belief that they were reporting FEHA violations;
(4) there were triable issues of fact on both claims as to whether
their engagement in protected activities was a contributing factor
in their terminations; (5) on their section 1102.6 claim, the City
failed to carry its burden by clear and convincing evidence that
that it would have terminated plaintiffs for independent reasons
that were unrelated to their prior lawsuits; (6) they were not
collaterally estopped from explaining their interrogatory
responses in the consolidated action because the court in that
prior matter did not determine that they were untruthful; and
(7) the trial court in this action was required to consider their
explanations that they did not review or approve the
interrogatory responses, that Vargas did not verify the May 1,
2015, response, and that the verification forms were “[p]re-
signed”.
11
4. Plaintiffs’ Evidence
Plaintiffs supported their motion with, among other
evidence, deposition excerpts, documentary exhibits, and their
own lengthy declarations with exhibits.4
a. Vargas Declaration
In his 112 paragraph declaration, Vargas provided the
following relevant facts:
i. discovery responses
Vargas addressed each of the statements he made in
written discovery in the consolidated action,5 providing the
4 As explained below, the trial court sustained objections to a
substantial portion of the evidence submitted by plaintiffs in
opposition to the City’s summary judgment motion, and the City
contends that plaintiffs do not raise adequate challenges to those
objections on appeal. Consistent with our discussion of the
court’s evidentiary rulings below, we summarize here only (1)
those relevant portions of plaintiffs’ declarations to which the
court did not sustain objections; and (2) those relevant
paragraphs of their declarations that were excluded on issue
preclusion grounds. Because, however, we will assume for
purposes of this appeal that plaintiffs demonstrated that they
engaged, or reasonably believed they were engaging, in protected
activity when they filed their various complaints, we do not
summarize the evidence they offered in support of that element.
5 Vargas’s three statements were: (1) he had been selected
for the acting sergeant role on multiple occasions (acting sergeant
12
following identical explanations for each such statement: His
former attorney in the consolidated action, Ronald Zambrano,
asked him to “pre-sign[ ]” verification forms that did not include
the “name of the document reviewed, or the date and location of
execution.” He did not insert any information on any of the forms
and had no knowledge of who inserted the information. He did
not expect his former attorney to use the signed forms in
connection with any documents without first giving him an
opportunity to review and approve the documents.
Other than at his deposition in this action, no one,
including attorney Zambrano, gave Vargas the opportunity to
correct inaccuracies or approve the subject written discovery
responses prior to their submission to the City. He did not
communicate with any of his former attorneys concerning the
information to be included in the responses at any time prior to
their submission.
During the internal affairs investigation, no one from the
City asked Vargas: (1) whether he had signed the verification
forms or dated them; (2) whether he received, reviewed, and
approved the subject discovery responses; (3) whether he
communicated with his attorneys about the subject discovery
responses prior to their submission to the City; and (4) to explain
any discrepancies between his deposition statements and his
written discovery responses.
In addition, Vargas provided the following explanations as
to the acting sergeant statement: During his deposition in the
statement); (2) in 2008 he had filed a race or national origins
lawsuit against the City that resulted in a judgment in his favor
(race lawsuit statement); and (3) he had been denied access to
grant overtime (grant overtime statement).
13
consolidated action, the City’s attorney asked Vargas if he had
ever been acting sergeant prior to 2008, and he answered no.
Vargas misspoke when answering because the City’s attorney
was visibly hostile toward him and asked him the question very
quickly which led to his confusion. When he reviewed his
deposition transcript, he corrected his testimony in an errata
sheet in which he stated that he had acted as a sergeant by
putting out the patrol watch in the 2000 to 2005 timeframe. In a
subsequent deposition, he further explained that, in accordance
with common practice, he was considered an acting sergeant on
those occasions when he was required to put out the patrol watch
due to the unavailability of any more senior officer and conceded
that no one told him to assume the role of acting sergeant.
As to the race lawsuit statement, Vargas was truthful with
the City’s attorney during his deposition in the consolidated
action when he explained that he did not recall the years when he
filed lawsuits against the City, did not know the type of wordage,
terminology, or legal terms used in those suits, and he did not
know the legal name of the lawsuit in question. He also pointed
out that the City would have access to the records in question.
As to the grant overtime statement, Vargas explained that
prior to the filing of the 2014 action, he learned of the existence of
a list of secret overtime work opportunities, to which he did not
have access, when he saw filled-out overtime slips for times that
were not included in the regular overtime lists. When he later
discussed the issue with a sergeant, he was shown the list of
secret overtime opportunities.
According to Vargas, he testified in his deposition that he
was denied access to grant overtime based on the sergeant’s
secret overtime. After Vargas gave that testimony, he further
14
testified that he was not denied access to grant overtime,
referring to the regular grant overtime sign-up meetings at which
he was present. His testimony that he was not denied access to
grant overtime clearly pertained to the regular grant overtime
sign-up meetings that he attended. The City’s attorney did not
ask him to clarify, and he had no idea that his testimony could be
misunderstood or confusing to anyone.
ii. the internal affairs investigation
As noted, on March 28, 2017, Vargas filed a FEHA claim
against the City. On March 31, 2017, in connection with the
internal affairs investigation, the City reassigned Vargas,
prohibited him from driving City vehicles, and prohibited him
from wearing a police uniform in public. As a result of those
punitive actions, he learned for the first time that there was an
internal affairs investigation against him, but he still did not
know the nature of the allegations that triggered it.
The internal affairs investigation resulted in Vargas’s
dismissal from the City on May 23, 2017. He believed that his
dismissal was an act of retaliation by the City for having filed
prior lawsuits, for assisting Orduno in the consolidated action,
and for testifying in Orduno’s favor in that action. He believed
that the internal affairs investigation was a set-up because at no
time prior to his termination did the City give him copies of the
responses to interrogatories forming the basis of the allegations
of untruthfulness against him. He also based his belief that his
termination was retaliatory on the fact that, following the 2004
action, he was continually singled out by the City for various
adverse employment actions and internal affairs investigations
15
that were not justified by any performance deficiencies or any
other legitimate reason.
b. Orduno Declaration
In his 66-paragraph declaration, Orduna provided the
following relevant testimony:
i. internal affairs investigation
On April 18, 2016, the City initiated an internal affairs
investigation against Orduno and Vargas for alleged
untruthfulness and dishonesty in responses to written discovery
in the consolidated action.
ii. discovery responses
Orduno addressed each of the three verified statements he
made in written discovery in the consolidated action,6 providing
the following identical explanations for each such statement: His
former attorney in the consolidated action, Ronald Zambrano,
asked him to “pre-sign[ ]” verification forms that did not include
the “name of [the] document reviewed, or the date and location of
6 Orduno’s three statements were: (1) he complained to
superiors about Lieutenant Klein’s detriment statement
(complaint about Klein statement); (2) he experienced a lack of
assistance on traffic stops once he was required to wear the
recorder (lack of assistance statement); and (3) he found it
difficult to issue seven citations in a five-hour time period (seven
citations statement).
16
execution.” He did not insert any information on any of the forms
and had no knowledge of who inserted the information. He did
not expect his former attorney to use the signed forms in
connection with any documents without first giving him an
opportunity to review and approve the documents. Other than at
his deposition in this action, no one, including attorney
Zambrano, gave Orduno the opportunity to correct inaccuracies
or approve the subject written discovery responses prior to their
submission to the City.
During the internal affairs investigation, no one from the
City asked Orduno: (1) about the alleged inconsistencies between
the statements in his written discovery responses and his
deposition testimony concerning those statements; (2) whether he
had signed the verification forms or dated them; (3) whether he
received, reviewed, and approved the subject discovery responses;
and (4) whether he communicated with his attorneys about the
subject discovery responses prior to their submission to the City.
In addition, Orduno provided the following specific
explanations as to the complaint about Klein’s statement: In his
prior deposition in the consolidated action, Orduno denied
“‘making a complaint’” about Lieutenant Klein because the City’s
attorney had asked, “‘did you make a complaint’”, as opposed to
asking “‘did you complain’”. Orduno answered in the negative
because he understood her question to mean to “‘make’” a formal
internal affairs complaint about Klein. He did, however,
complain about Klein’s “‘detriment’” comment, as stated in the
interrogatory responses. Any inconsistency between the
interrogatory responses and the deposition testimony was a
result of Orduno interpreting the question “‘did you make a
complaint’” to mean a formal internal affairs complaint. Orduno
17
also explained that he never met or communicated with the
attorney who signed the interrogatory responses containing the
complaint about Klein’s statement.
As to the lack of assistance statement, Orduno explained
that in his deposition in the consolidated action, he “truthfully
testified that [he] did receive assistance when [he] requested it in
the field even after [the City] required [him] to wear an audio
recorder.”
And, as to the seven citations statement, Orduno explained
that, in his deposition in the consolidated action, he testified that
he “had no problem issuing the required citations, and [he]
confirmed in [his] deposition in the instant case that [his] prior
deposition testimony . . . about issuing citations was truthful.”
He also claimed that the signature on the verification form
attached to the interrogatory responses containing his seven
citations statement was not his and that he did not believe he
signed that form or inserted any of the information on it.
c. Other Discovery
Plaintiffs also submitted deposition testimony from
Commander Steven Lauricella in which he stated that officers
under investigation were usually interviewed during the course
of the internal affairs investigation and that it was rare that they
were not.
5. The City’s Evidentiary Objections
In response to plaintiffs’ opposition, the City filed written
objections to plaintiffs’ evidence, asserting 258 numbered
18
objections. Each numbered objection asserted multiple grounds
for excluding the testimony specified in that objection, including,
for example, that the testimony was: barred under the doctrine
of issue preclusion; lacking in foundation; not relevant;
conclusory; impermissible opinion; and speculation. Not all of the
objections, however, included issue preclusion as a ground for
exclusion.
6. Ruling on Motion
On March 24, 2022, the trial court held a hearing on the
City’s summary judgment motion and, after taking the matter
under submission, issued a written order that same day making
the evidentiary rulings discussed below and granting the motion
on the grounds that there were no triable issues of fact as to
either of plaintiffs’ claims.
III. DISCUSSION
A. Standard of Review
The standard of review for summary judgment is well
settled. “[T]he party moving for summary judgment bears an
initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he carries his
burden of production, he causes a shift, and the opposing party is
then subjected to a burden of production of his own to make a
prima facie showing of the existence of a triable issue of material
fact. . . . A prima facie showing is one that is sufficient to support
19
the position of the party in question.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850–851 (Aguilar).)
“In reviewing a grant of summary judgment, we
independently evaluate the record, liberally construing the
evidence supporting the party opposing the motion, and resolving
any doubts in his or her favor. [Citation.] As the moving party,
the defendant must show that the plaintiff has not established,
and reasonably cannot be expected to establish, one or more
elements of the cause of action in question.” (Patterson v.
Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499–500.)
In conducting its de novo review, the appellate court
considers “all of the evidence the parties offered in connection
with the motion (except that which the court properly excluded)
and the uncontradicted inferences the evidence reasonably
supports.” (Merrill v. Naveger, Inc. (2001) 26 Cal.4th 465, 476
(Merrill).)
B. Legal Principles
1. Section 1102.5
“Section 1102.5 provides whistleblower protections to
employees who disclose wrongdoing to authorities.” (Lawson v.
PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709
(Lawson).) “The purpose of [this statute] is to ‘encourag[e]
workplace whistle-blowers to report unlawful acts without
fearing retaliation.’” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 287.)
In Lawson, supra, 12 Cal.5th 703, the court clarified “the
applicable framework for litigating and adjudicating section
20
1102.5 whistleblower claims,” holding that the provisions of
Labor Code section 1102.6 govern that analysis, not the three-
part burden shifting construct developed under McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).
(Lawson, supra, 12 Cal.5th at p. 712.) The court explained,
“[s]ection 1102.6 provides the governing framework for the
presentation and evaluation of whistleblower retaliation claims
brought under section 1102.5. First, it places the burden on the
plaintiff to establish, by a preponderance of the evidence, that
retaliation for an employee’s protected activities was a
contributing factor in a contested employment action. The
plaintiff need not satisfy McDonnell Douglas in order to
discharge this burden. Once the plaintiff has made the required
showing, the burden shifts to the employer to demonstrate, by
clear and convincing evidence, that it would have taken the
action in question for legitimate, independent reasons even had
the plaintiff not engaged in protected activity.” (Id. at p. 718.)
2. FEHA Retaliation
Plaintiffs’ FEHA retaliation claim is evaluated under the
three-part burden shifting construct that has evolved from
McDonnell Douglas, supra, 411 U.S. 792. “[I]n order to establish
a prima facie case of retaliation under the FEHA, a plaintiff must
show (1) he or she engaged in a ‘protected activity,’ (2) the
employer subjected the employee to an adverse employment
action, and (3) a causal link existed between the protected
activity and the employer’s action. [Citations.] Once an
employee establishes a prima facie case, the employer is required
to offer a legitimate, nonretaliatory reason for the adverse
21
employment action. [Citation.] If the employer produces a
legitimate reason for the adverse employment action, the
presumption of retaliation ‘“‘drops out of the picture,’”’ and the
burden shifts back to the employee to prove intentional
retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36
Cal.4th 1028, 1042 (Yanowitz).)
C. Analysis
1. Evidentiary Rulings
Citing to the standard on review that precludes us from
considering evidence that the trial court properly excluded, the
City maintains that plaintiffs failed to address adequately in
their opening brief the court’s adverse evidentiary rulings.
According to the City, although the court sustained 176 of its 258
numbered objections, plaintiffs failed to raise a challenge to any
of those specific objections, choosing instead to argue generally
that the court committed legal error to the extent it sustained the
City’s objections based on the doctrine of issue preclusion.
Because plaintiffs failed to identify specific objections or provide
reasoned explanation as to why the court erred in excluding a
specific portion of their proffered testimony, the City concludes
they waived any challenge on appeal to the court’s evidentiary
rulings.
For purposes of our analysis, we will assume, without
deciding, that (1) plaintiffs adequately preserved their issue-
preclusion challenges to the paragraphs of their declarations
specified in their opening brief; (2) the trial court erroneously
22
excluded that testimony relying only on that ground7; and (3) the
testimony excluded on such grounds should therefore be
considered in our analysis of the issues.
2. Section 1102.5 Claim
a. Failure to Move Under Lawson Standard
Plaintiffs contend that the trial court erred when
considering the motion on their section 1102.5 claim because the
City moved for summary judgment under the wrong standard,
namely, the three-part burden shifting construct outlined in
McDonnell Douglas, supra, 411 U.S. 792. Citing Scheer v.
Regents of the University of California (2022) 76 Cal.App.5th 904(Scheer), plaintiffs conclude that “the City’s failure to use the
correct standard in its motion, a mistake the trial court did not
address in its ruling, requires reversal of the summary resolution
of the section 1102.5 cause of action.” We disagree.
7 At page 48, footnote 4, of the opening brief, plaintiffs
concede that the trial court excluded other paragraphs of their
declarations “for which there was no issue preclusion objection”,
but they do not adequately address the other grounds upon which
those exclusionary rulings were based. We therefore conclude
plaintiffs waived any challenges to the exclusion of that
testimony and do not consider it in our analysis of the issues.
Plaintiffs also concede in their reply that they did not address the
trial court’s exclusion of certain testimony of Alexander
Lawrence, James Willis Morgan, and Berkenkamp in their
opening brief. They have thereby waived any reliance upon that
testimony on appeal.
23
Here, unlike in Scheer, supra, 76 Cal.App.5th 904,
plaintiffs argued in their opposition that the Labor Code section
1102.6 clear and convincing evidence standard should apply to
their whistleblower claim and, following the issuance of the
decision in Lawson, supra, 12 Cal.5th 703, briefed that decision
for the trial court before the summary judgment hearing. We
therefore assume the court followed the Lawson analytical
framework, and plaintiffs do not affirmatively demonstrate
otherwise. (See Sweetwater Union High School Dist. v. Julian
Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 981
[The reviewing court is required to presume the order is correct
and indulge all presumptions to support it on matters as to which
the record is silent. The appellants bear the burden of
affirmatively showing error].)
In addition, because we review the trial court’s ruling de
novo, we can apply the Lawson, supra, 12 Cal.5th 703 standard
to the evidence in the record on the motion and review the trial
court’s ruling under the correct analytical framework, without
reversing on procedural grounds and remanding for a
redetermination of the motion. (See Vatalaro v. County of
Sacramento (2022) 79 Cal.App.5th 367, 379–380 [trial court
decided a summary judgment motion prior to Lawson, applying
the incorrect three-part standard, and appellate court applied
correct Lawson standard de novo].)
b. Plaintiffs’ Burden
We first consider whether plaintiffs met their initial burden
to establish a case of whistleblower retaliation under section
24
1102.5.8 As we discuss above, plaintiffs had the initial burden of
establishing, by a preponderance of the evidence, that (1) they
engaged in protected activity; (2) they suffered an adverse
employment action; and (3) retaliation for the protected activity
was a contributing factor in the adverse employment action.
(Lawson, supra, 12 Cal.5th at p. 718.)
i. protected activity
To show engagement in protected activity under section
1102.5, subdivision (b), an employee must only produce evidence
of a reasonable belief that there was a violation of a statute,
regulation, or rule. (See Nejadian v. County of Los Angeles (2019)
40 Cal.App.5th 703, 719 [“under subdivision (b) of section 1102.5
. . . the employee must show only that he or she reasonably
believed that there was a violation of a statute, rule, or
regulation”]; Ross v. County of Riverside (2019) 36 Cal.App.5th
580, 583 [section 1102.5, subdivision (b) “requires only that an
8 Section 1102.5, subdivision (b) provides: “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, or for providing information to, or
testifying before, any public body conducting an investigation,
hearing, or inquiry, 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.”
25
employee disclose information and that the employee reasonably
believe the information discloses unlawful activity”].)
We will assume that both plaintiffs presented sufficient
evidence showing that, when they filed the consolidated action,
they were protesting and seeking redress for perceived violations
of their rights under Government Code section 12940, subdivision
(h)9 and, thus, that they established they engaged in protected
activity.
ii. adverse action
It is undisputed that plaintiffs were subjected to an
internal affairs investigation and terminated from their
employment. Those facts were sufficient to satisfy plaintiffs’
burden of showing that they were subjected to an adverse
employment action. (See St. Myers v. Dignity Health (2019) 44
Cal.App.5th 301, 315 [actual discharge is a materially adverse
employment action].)
iii. contributing factor
“Section 1102.6 requires whistleblower plaintiffs to show
that retaliation was a ‘contributing factor’ in their termination,
demotion, or other adverse action. This means plaintiffs may
9 Government Code section 12940, subdivision (h) makes it
unlawful for an employer “to discharge, expel, or otherwise
discriminate against any person because the person has opposed
any practices forbidden under this part or because the person has
filed a complaint, testified, or assisted in any proceeding under
this part.”
26
satisfy their burden of proving unlawful retaliation even when
other, legitimate factors also contributed to the adverse action.
(See, e.g., State Comp. Ins. Fund v. Ind. Acc. Com. (1959) 176
Cal.App.2d 10, 17 . . . [describing a contributing factor standard
as one in which the conduct at issue need not be the ‘exclusive
cause’ of the plaintiff’s injuries]; Rookaird v. BNSF Ry. Co. (9th
Cir. 2018) 908 F.3d 451, 461 . . . [‘“A ‘contributing factor’ includes
‘any factor, which alone or in connection with other factors, tends
to affect in any way the outcome of the decision’”’].)” (Lawson,
supra, 12 Cal.5th at pp. 713–714.)
Plaintiffs contend that they met their initial burden of
showing, by a preponderance of evidence, that their pursuit of the
consolidated action was a contributing factor to their
terminations. According to plaintiffs, the timing of the internal
affairs investigation against them—four days after the adverse
ruling in the consolidated action—together with the City’s failure
to interview them or provide an opportunity to explain their
inconsistent discovery responses, supported a reasonable
inference that they were terminated “as a result of [that] action.”
We disagree.
The timing of the internal affairs investigation does not
support a reasonable inference that retaliation for plaintiffs’
lawsuits was a contributing factor to the adverse employment
action. Beginning in 1997, Vargas filed a total of five prior
lawsuits against the City and Orduno filed the first of his two
prior lawsuits in 2014. Yet the City did not initiate the internal
affairs investigation until years later, in April 2016. Moreover,
the written discovery responses which prompted the internal
affairs investigation came to light during the summary judgment
proceedings in the consolidated action and were expressly relied
27
upon by the trial court in that action in making its April 14, 2016,
summary judgment ruling. Thus, the opening of an investigation
shortly after the issuance of that ruling does not, by itself,
suggest a link between plaintiffs’ terminations, over a year later,
and their pursuit of the consolidated action. If anything, the
timing is inconsistent with an inference of retaliation because
once the problematic responses came to light, the City took them
seriously by immediately undertaking formal administrative
action in response and considering the issue for over a year.
Similarly, the failure of the Department to interview the
officers during the internal phase of the investigation, and before
the Skelly hearings,10 did not support a reasonable inference of
retaliation. Given the serious nature of the allegations of
dishonesty and the straightforward evidence that it occurred, a
trier of fact could infer little, if anything, from the City’s decision
to forego interviews.
10 A Skelly meeting or hearing refers to the due process rights
afforded to public employees prior to adverse employment actions
by their employer under Skelly v. State Personnel Bd. (1975) 15
Cal.3d 194 (Skelly). “‘What Skelly requires is unambiguous
warning that matters have come to a head, coupled with an
explicit notice to the employee that he or she now has the
opportunity to engage the issue and present the reasons opposing
such a disposition. Moreover, the opportunity to respond must
come after the notice of intention to dismiss.’ [Citation.]”
(LaMarr v. Regents of the University of California (2024) 101
Cal.App.5th 671, 675.)
Here, plaintiffs were each given the opportunity to explain
their inconsistent discovery responses at a Skelly hearing after
their notices of termination, a fact that serves to undercut any
inference of retaliation from the City’s failure during the
investigation to seek such explanations from them.
28
The serious nature of the dishonest conduct at issue also
renders the excuses plaintiffs proffered for the misleading
discovery responses implausible. Chief Luna’s undisputed
testimony established that the City treated any act of
untruthfulness by its officers as a terminable offense.
Notwithstanding that policy, plaintiffs both maintained that they
pre-signed verification forms stating under oath that the matters
in “the foregoing document” to which the form was attached were
true and “[knew] its contents.” But in their subsequent
declarations explaining their responses, they maintained that
they had no knowledge at the time they made those verifications
as to which documents their forms would be attached, much less
the content of those documents. Thus, their pre-signing excuse
was itself an admission to an act of dishonesty.11
In addition, the verification forms had different dates, some
of which were handwritten, others of which were typed, and one
of which was undated. Those facts contradict plaintiffs’
suggestion that they were all signed on the same occasion
without any other information included on the forms.
Finally, plaintiffs’ assertion that they did not provide any of
the information in the discovery responses and did not know who
had supplied such information was facially incredible. (See
People v. Schlimbach (2011) 193 Cal.App.4th 1132, 1142, fn. 9
11 Orduno states in his declaration that the signature on one
verification form, attached to the response containing his seven
citations statement, does not appear to be his. But even if we
assume that testimony raised a triable issue concerning whether
he gave false testimony based on that particular statement, he
nevertheless admits that he signed the other forms on which the
other sustained allegations of dishonesty were based.
29
[“trial court may weigh the credibility of a declaration submitted
in opposition to a summary judgment motion and grant the
motion ‘where the declaration is facially so incredible as a matter
of law that the moving party otherwise would be entitled to
summary judgment.’ (Estate of Housely (1997) 56 Cal.App.4th
342, 359–360.)”].) The misstatements in the discovery responses
were not created out of whole cloth. Instead, in many instances,
they were consistent with the facts alleged in the complaints filed
in the consolidated action, including, for example, Vargas’s acting
sergeant and race lawsuit statements and Orduna’s lack of
assistance statement. Further, the discovery misstatements
were included within responses containing other accurate
information in terms of the described events, such as Klein’s
detriment comment and whether plaintiffs were required to wear
audio recorders. There is no plausible explanation for who else,
aside from plaintiffs, could have provided that information.
Moreover, plaintiffs’ assertion that they did not provide the
content of the discovery responses was inconsistent with their
suggestion that their later contrary deposition testimony was
based on their misunderstanding of a question. We therefore
conclude that plaintiffs did not meet their initial burden to
establish, by a preponderance of the evidence, that retaliation for
plaintiffs’ protected activities was a contributing factor in their
adverse employment actions.
30
3. FEHA Retaliation Claim
For the reasons discussed above, plaintiffs also did not
submit sufficient evidence to satisfy their prima facie burden
under their FEHA retaliation claim to show there was a causal
link between their protected activities and the adverse action.
(Yanowitz, supra, 36 Cal.4th at p. 1042.)
31
IV. DISPOSITION
The judgment is affirmed. The City is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
LEE, J.
 Judge of the San Bernardino Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
32