Weinstein v. City of Oakland CA1/3

Filed 12/9/21 Weinstein v. City of Oakland CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MARLENE G. WEINSTEIN, as
Trustee, etc., A161268
Plaintiff and Appellant,
v. (Alameda County
CITY OF OAKLAND, Super. Ct. No. RG17850153)
Defendant and Respondent.
James M. Gantt1 filed a lawsuit against his former employer, City of
Oakland (the City). Gantt alleged the Oakland Police Department (OPD)
retaliated against him for whistleblowing in violation of Labor Code section
1102.5 (further undesignated statutory references are to the Labor Code) and
the Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)).
The trial court granted the City’s motion for summary judgment, concluding
several of Gantt’s claims were time-barred and his remaining claims were
legally insufficient. It also denied Gantt’s motion for a new trial and entered
judgment for the City.
We affirm.
Marlene Weinstein, as the trustee of Gantt’s bankruptcy estate, is
1
pursing these claims but we refer to Gantt throughout for ease of reference.
1
BACKGROUND2
I. Gantt’s Homicide Division Placement
Gantt joined the OPD in 1988 and became a homicide detective in 2009.
In January 2014, Lieutenant A. became the head of the homicide division.
Lieutenant A. and Gantt had a contentious relationship. For example,
Lieutenant A. removed Gantt from an investigation into a June 2014
shooting death of an OPD officer’s wife after Gantt expressed suspicions that
the officer had killed his wife.3 After he was removed from the investigation,
Gantt asserted Lieutenant A. regularly pressured him to quickly finish his
work; asked Gantt to arrive at work and meetings on time; and refused to
authorize overtime. Gantt also alleged that, in late July 2014, junior officers
improperly accessed his electronic personnel file to view a “corrective
counseling” note written by Lieutenant A. Gantt believed the alleged
improper viewing of his personnel file was related to Lieutenant A.’s efforts
to embarrass him in the homicide unit.
Meanwhile, in May 2014, Gantt’s friend, Lieutenant B., sent a racist
image via text message to Gantt and a group of officers. Gantt told
Lieutenant B. the image offended him. In August 2014, Gantt requested a
transfer from the homicide division. After Lieutenant B. learned of the
transfer, he sent the same group various text messages about Gantt’s age.
2 We provide an overview here and additional detail in the discussion of
Gantt’s specific claims. We refrain from using names or presenting detailed
facts to comply with a trial court order sealing large portions of the record.
3 Gantt also describes an Internal Affairs Division (IAD) investigation
into statutory rape committed by an OPD officer. As these facts are
irrelevant to Gantt’s claims and our analysis, we do not discuss them.
(Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 668,
fn. 2.)
2
II. Gantt’s IAD Complaints
In December 2014, Gantt filed an IAD complaint claiming
Lieutenant A. created a hostile work environment by publicly disparaging
him. The following month, Gantt filed another IAD complaint asserting
Lieutenant B.’s August 2014 text messages constituted harassment of, and
discrimination against, Gantt because of his age.
A year later, in January 2016, Gantt received a supervisory note — a
non-disciplinary action documenting a conversation between supervisor and
officer — due to Gantt’s failure to respond to roster requests for an operation
headed by Lieutenant A. Based on this note, Gantt’s then-supervisor filed an
IAD complaint on Gantt’s behalf. He alleged the supervisory note was issued
in retaliation for Gantt’s December 2014 complaint alleging Lieutenant A.
created a hostile work environment. IAD concluded the allegations were
unfounded.
In April 2016, Gantt notified IAD of Lieutenant B.’s May 2014 racist
text messages. IAD opened a new investigation. During its investigation,
IAD discovered that Gantt sent homophobic text messages to the same group.
IAD ultimately concluded both Lieutenant B. and Gantt engaged in
unprofessional conduct. OPD suspended both officers for five days without
pay.
III. Additional IAD Investigations of Gantt
IAD also investigated several incidents related to Gantt’s conduct. For
example, in April 2016, Gantt and his wife had a domestic dispute during
which Gantt brandished a firearm. After Gantt reported the incident to IAD,
it opened an investigation. The next day, OPD placed Gantt on
administrative leave.
3
In June 2016, while IAD was investigating Gantt’s domestic dispute, a
civilian lodged a complaint that Gantt mishandled evidence in a 2011
homicide investigation. This triggered an additional IAD investigation. The
same month, Gantt’s girlfriend announced on social media that she possessed
homicide investigation materials. She also contacted Lieutenant B. and other
OPD officers and expressed concern that Gantt would harm her. OPD
dispatched officers to her apartment, and IAD opened yet another
investigation into whether Gantt improperly disclosed evidence in multiple
criminal investigations. Several days later, the City’s mayor issued a press
release announcing a district attorney investigation to determine whether an
OPD officer engaged in criminal misconduct.
In October 2016, IAD concluded there was insufficient evidence Gantt
engaged in domestic violence and exonerated him regarding the improper
firearm use allegation. But the other investigations remained ongoing. OPD
kept Gantt on administrative leave until February 21, 2017.
IV. Lawsuit Against the City
On November 1, 2016, while IAD investigations continued, Gantt
presented the City with a Government Claims Act claim (Gov. Code, § 910)
alleging retaliation. He alleged OPD retaliated against him for making
complaints about the 2014 homicide investigation and harassing conduct of
other officers; the City rejected the claim. Gantt also filed an administrative
complaint with the Department of Fair Employment and Housing (DFEH) on
February 7, 2017, alleging retaliation, among other things. He obtained a
right to sue letter the same day.
On February 21, 2017, Gantt sued the City, asserting whistleblower
and retaliation claims under the Labor Code and FEHA, and seeking
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damages and injunctive relief. Several months later, Gantt retired earlier
than expected, citing anxiety attributable to working at OPD.
The City moved for summary judgment, which trial court granted. It
concluded Gantt’s whistleblower retaliation claims based on conduct
occurring before May 1, 2016 — six months before Gantt filed his government
claim — were time-barred. (Gov. Code, § 911.2, subd. (a).) Similarly, it found
his FEHA causes of action based on conduct occurring before February 7,
2016, were untimely. As for Gantt’s section 1102.5 and FEHA claims, the
court determined Gantt either failed to establish a prima facie case of
retaliation or that the undisputed evidence established a legitimate,
nonretaliatory explanation for the adverse employment actions.
Gantt moved for a new trial, which the court denied. The court entered
judgment for the City.
DISCUSSION
I. Summary Judgment
FEHA protects “the rights of all persons to seek, obtain, and hold
employment without discrimination” on account of race, among other things.
(Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 420.) Relevant here, it
prohibits an employer from “discharg[ing], expel[ling], or otherwise
discriminat[ing] against any person because the person has opposed any
practices forbidden under [FEHA],” a protected activity. (Gov. Code, § 12940,
subd. (h).) Section 1102.5 similarly prohibits an employer from retaliating
against employees for engaging in protected activity, defined as disclosing to
a government or law enforcement agency information reasonably believed to
be “a violation of state or federal statute, or violation of noncompliance with a
local, state or federal rule of regulation.” (§ 1102.5, subd. (b).)
5
To establish a prima facie case of retaliation under either statute,
plaintiffs must demonstrate (1) they were engaged in protected activity;
(2) the employer subjected them to an adverse employment action — an
action that materially affects the terms, conditions, or privileges of
employment (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052
(Yanowitz); and (3) there is a causal link between the protected activity and
the adverse employment action. (Guthrey v. State of California (1998) 63
Cal.App.4th 1108, 1125; Patten v. Grant Joint Union High School Dist. (2005)
134 Cal.App.4th 1378, 1384 (Patten).)
Gantt asserts he engaged in protected activity by disclosing what he
reasonably believed were violations of the law. According to Gantt,
complaints regarding the following conduct were protected activities: OPD’s
handling of the 2014 homicide investigation; Lieutenant A.’s management;
junior officers’ improper access to personnel information; and Lieutenant B.’s
improper text messages. He also identifies his submission of a DFEH
complaint and Government Claims Act claim as protected activities.
Gantt argues OPD subjected him to several adverse employment
actions as a result of his protected activity, including: his 2014 removal from
a homicide investigation; OPD’s 2015 failure to investigate racist text
messages; his January 2016 supervisory note; OPD investigating his text
messages and the resulting suspension; the June 2016 investigation of his
disclosure of homicide materials; the press release issued by the City’s mayor
regarding this investigation; and his ten-month administrative leave.4 These
4In the trial court, Gantt argued Lieutenant A.’s alleged 2014
harassment and disparate enforcement of procedural rules also constituted
adverse employment actions. He also claimed a June 2016 press release
concerning an investigation into racist text messages was an adverse action.
Gantt does not renew these arguments on appeal, and we consider them
6
facts, Gantt argues, permit an inference that OPD retaliated against him for
engaging in protected activity.
But alleging protected activities, adverse employment actions, and a
causal link merely shifts the burden to the employer to “provide a legitimate,
nonretaliatory explanation for its acts.” (Patten, supra, 134 Cal.App.4th at
p. 1384; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476
(Flait).) That is, an employer must “demonstrate by clear and convincing
evidence that the alleged action would have occurred for legitimate,
independent reasons even if the employee had not engaged in activities
protected by Section 1102.5.” (§ 1102.6.) For FEHA claims, in contrast, an
employer must demonstrate a legitimate, nondiscriminatory reason for
making an employment decision by a preponderance of the evidence. (Harris
v. City of Santa Monica (2013) 56 Cal.4th 203, 239, 241.) If the employer
satisfies its burden, a plaintiff must then demonstrate the employer’s
explanation is pretextual or false. (Patten, at p. 1384; Flait, at p. 476.)
Gantt contends summary judgment was improper because there is a
triable issue of fact regarding whether OPD retaliated against him for
making protected disclosures within the meaning of FEHA and section
1102.5. He further asserts the City’s proffered explanations for its actions
were pretextual.
A court must grant summary judgment if there is no triable issue of
any material fact, and the moving party is entitled to judgment as a matter of
law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.) We review de novo whether there is a triable
issue of fact accepting as true the facts in evidence and reasonable inferences
forfeited. (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349,
361 [failure to raise issue in opening brief generally waives the issue].)
7
that can be drawn. (Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 67.) After construing the facts in the light most favorable to
Gantt, we conclude the trial court correctly granted the City’s motion for
summary judgment. (Aguilar, at p. 843.)
A. Time-Barred Claims
At the outset, several of Gantt’s retaliation claims are time-barred,
including those arising from his 2014 removal from a homicide investigation,
OPD’s 2015 failure to investigate Lieutenant B.’s alleged racist text
messages, and his January 2016 receipt of a supervisory note.
Consistent with the Government Claims Act, Gantt presented the City
with a whistleblower claim for damages on November 1, 2016. (Gov. Code,
§§ 905, 945.4.) The Government Code provides that a claim must be
presented “not later than six months after the accrual of the cause of action.”
(Id., § 911.2, subd. (a); Canova v. Trustees of Imperial Irrigation Dist.
Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1496 [date of accrual “is
generally the date the plaintiff incurred injury as a result of the defendant’s
alleged wrongful act or omission”].) Thus, Gantt’s section 1102.5 claims
accruing before May 1, 2016 are time-barred.
Similarly, as required by FEHA, Gantt filed a complaint with DFEH on
February 7, 2017, and he obtained a right to sue letter the same day.
(Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109, 1117 [filing a
DFEH complaint is required to exhaust administrative remedies before filing
a FEHA claim in court].) Government Code section 12960, former
subdivision (d) required complainants to submit FEHA complaints within one
8
year of the date upon which the alleged unlawful practice occurred.5 As a
result, any FEHA claims accruing before February 7, 2016, are also time-
barred.
Gantt acknowledges these statutory limitations, but he insists his
claims are timely under the continuing violation doctrine. Under that
doctrine, an employer is liable “for actions that take place outside the
limitations period if these actions are sufficiently linked to unlawful conduct
that occurred within the limitations period.” (Yanowitz, supra, 36 Cal.4th at
p. 1056.) Thus, “a series of separate retaliatory acts collectively may
constitute an ‘adverse employment action’ even if some or all of the
component acts might not be individually actionable.” (Id. at p. 1058.)
Conduct may constitute a continuing violation if the employer’s unlawful
actions are “(1) sufficiently similar in kind . . . (2) have occurred with
reasonable frequency; (3) and have not acquired a degree of permanence.”
(Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)
But Gantt does not identify any frequent and ongoing unlawful conduct
sufficiently similar to events that occurred after February 7 or May 1, 2016,
the relevant time period here. (Yanowitz, supra, 36 Cal.4th at p. 1056.)
Instead, he simply states the time-barred claims arise from his
disagreements with Lieutenant A. and Lieutenant B. This is insufficient.
Gantt filed his harassment claim against Lieutenant A. in December 2014,
and he received a supervisory note in January 2016 — more than one year
later. He does not contend Lieutenant A. thereafter imposed any additional
discipline or engaged in any additional unlawful conduct. As for Lieutenant
B., Gantt’s briefs only address allegations that Lieutenant B. instigated a
5 The Legislature amended the statute, effective January 1, 2020, to
allow for a limitations period of three years, but the amendment does not
revive lapsed claims. (Stats. 2019, ch. 709, §§ 1, 3.)
9
raid on the apartment of Gantt’s girlfriend in 2016. (Post, p. 13.) Gantt does
not identify any ongoing, frequent harassing conduct by Lieutenant B. (Id. at
p. 1056, fn. 16 [pervasive workplace harassment may constitute adverse
employment action].) Nor does he allege OPD engaged in ongoing
harassment resulting in his constructive discharge, i.e., his early retirement.
Gantt’s retaliation claims based on the homicide investigation removal,
failure to investigate Gantt’s complaint, and supervisory note thus constitute
“ ‘isolated employment decisions’ ” rather than pervasive workplace
harassment.6 (Morgan, supra, 88 Cal.App.4th at p. 66; Yanowitz, at p. 1056,
fn. 16.) The continuing violation doctrine does not apply, and the claims are
time-barred.
B. Investigating Gantt’s Text Messages and Suspension
Gantt argues his criticism of OPD’s failure to investigate his complaint
regarding the receipt of racist text messages caused OPD to subject him to
adverse employment actions — the investigation of his homophobic text
messages and resultant suspension. (Yanowitz, supra, 36 Cal.4th at p. 1061
[suspension is an adverse employment action].) Even assuming Gantt raised
a triable issue of fact regarding the elements for a retaliation claim, the City
presented clear and convincing evidence of a legitimate, non-retaliatory
reason for suspending Gantt: he engaged in misconduct. (Patten, supra, 134
Cal.App.4th at p. 1384; Flait, supra, 3 Cal.App.4th at p. 476.)
In 2015, IAD investigated text messages Lieutenant B. sent to a group
of officers, but it only addressed Gantt’s allegations of age-based harassment.
In April 2016, at Gantt’s urging, IAD investigated an alleged racist image
Lieutenant B. sent to Gantt and the same group of officers. Gantt emailed
6Because Gantt has not identified any sufficiently similar unlawful
conduct, we do not address his arguments that the claimed adverse
employment actions had not acquired a degree of permanence.
10
the investigator the image on May 19, 2016. Seven days later, Gantt emailed
the IAD investigator the entire text message thread, which included the
image, between the officers. But the thread also revealed that Gantt engaged
in improper conduct by sending homophobic text messages. As a result, IAD
investigated Gantt’s allegedly offensive text messages.
Investigating and ultimately suspending Gantt for making disparaging
homophobic comments are legitimate, nonretaliatory explanations for an
adverse employment action. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th
327, 354 [employees may not escape appropriate discipline by claiming
retaliation].) Indeed, there is no dispute that these messages violated OPD
policies. IAD concluded both Lieutenant B. and Gantt had engaged in
unprofessional conduct, and OPD suspended both without pay in July 2016.
From this evidence, there is no reasonable inference that the suspension was
retaliatory. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283
[“summary judgment should not be granted unless the evidence cannot
support any reasonable inference for plaintiff”].)
Arguing that this proffered explanation is merely pretextual, Gantt
asserts the timing of these events — IAD investigating and suspending
Gantt’s conduct after he made a complaint — demonstrates OPD punished
him in retaliation for making the complaint. But “a temporal relationship
alone is insufficient” to demonstrate retaliatory intent and avoid summary
judgment. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th
75, 94.) Once IAD investigated the text messages, it reviewed the
communications of the other officers involved to determine whether there was
any additional misconduct. Upon identifying Gantt’s improper text
messages, OPD imposed the same penalty on Lieutenant B. and Gantt rather
than treating them differently. (Wills v. Superior Ct. (2011) 195 Cal.App.4th
11143, 172 [“[s]howing disparate treatment or policy enforcement is a
permissible means to establish pretext”].) Gantt presents no evidence from
which a reasonable factfinder could infer that his own misconduct was a
factually baseless justification for suspension. (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 363.)
C. Investigating Gantt’s Disclosure of Homicide Materials
Gantt argues that, in retaliation for his April 2016 complaint about
Lieutenant B.’s text messages, Lieutenant B. instigated a raid on the
apartment of Gantt’s girlfriend. The raid, Gantt further argues, resulted in
IAD investigating his disclosure of homicide materials. Gantt fails to
establish a triable issue of fact on the causal link between his 2016 complaint
and the IAD investigation. (Guthrey v. State of California, supra, 63
Cal.App.4th at p. 1125; Patten, supra, 134 Cal.App.4th at p. 1384.)
In June 2016, Gantt’s girlfriend revealed on social media images of
compact discs containing homicide investigation materials. The woman then
phoned Lieutenant B. and claimed Gantt asked her to transcribe interviews
and jail calls of homicide suspects. Lieutenant B., in turn, conveyed this
information to other officers. The girlfriend also emailed another officer
claiming Gantt was “going to kill” her for disclosing this information.
Officers were dispatched to the girlfriend’s apartment based on a concern for
her safety and concern about the compromised homicide materials. And IAD
later investigated, among other things, whether Gantt disclosed or destroyed
evidence in multiple criminal investigations. Gantt admitted asking his
girlfriend, a civilian, to transcribe these materials, and IAD sustained the
allegations in June 2017, after he retired.
According to Gantt, this chain of events demonstrates Lieutenant B.
instigated the police response, and a jury must determine whether the
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lieutenant’s motive was retaliatory. This inference, however, is not
reasonably deducible from the evidence. (Joseph E. Di Loreto, Inc. v. O’Neill
(1991) 1 Cal.App.4th 149, 161 [“[w]hen opposition to a motion for summary
judgment is based on inferences, those inferences must be reasonably
deducible from the evidence, and not such as are derived from speculation”].)
Gantt’s girlfriend undisputedly disclosed the homicide materials, contacted
OPD, and reported a concern for her safety. After multiple officers received
the girlfriend’s communications, they notified OPD superiors. The assistant
police chief, not Lieutenant B., dispatched officers to her apartment.
Lieutenant B’s motives are not dispositive here.
Gantt insists his girlfriend did not actually fear him, thus undermining
Lieutenant B.’s general motives for instigating the “raid to protect” his
girlfriend. But whether the girlfriend feared Gantt when she contacted OPD,
a disputed fact, is not material. Her communications and her disclosures, not
Lieutenant B., prompted the department’s investigation. The evidence does
not support a reasonable inference that the complained-of actions were
retaliatory. (Nazir, supra, 178 Cal.App.4th at p. 283.)
D. Mayor’s Press Release
Gantt next contends that a press release issued by the City’s mayor
following the raid of his girlfriend’s apartment constitutes retaliation. We
disagree.
There is no meaningful factual dispute over the content of the press
release, which noted the district attorney was investigating alleged
misconduct by a member of the OPD. The release — a publication made “[i]n
the proper discharge of an official duty” and regarding OPD conduct — is
privileged as a matter of law. (Civ. Code, § 47, subd. (a); Vivian v.
Labrucherie (2013) 214 Cal.App.4th 267, 277 [police misconduct is a public
13
concern].) Privileged statements cannot form the basis of retaliation claims.
(Laker v. Board of Trustees of Cal. State Univ. (2019) 32 Cal.App.5th 745,
778; Howard v. Oakland Tribune (1988) 199 Cal.App.3d 1124, 1128
[summary judgment appropriate where applicability of privilege to
uncontradicted facts is a question of law].)
Gantt attempts to avoid the privilege, arguing the relevant inquiry is
whether OPD provided the mayor false information — that the case was
being referred to the district attorney even though OPD preliminarily
determined Gantt did not commit any crimes — that ultimately prompted the
mayor’s press release. This is unconvincing. Gantt’s claimed adverse
employment action is the reputational harm flowing from the press release,
not OPD’s disclosures. In addition, the press release does not mention
Gantt’s name, rendering his claimed damage speculative. (Cf. Akers v.
County of San Diego (2002) 95 Cal.App.4th 1441, 1456 [reduced promotional
opportunities caused by negative performance review directly identifying
plaintiff and damaging her reputation may constitute adverse employment
action].) The trial court properly granted the City summary judgment on this
claim.
E. Length of Administrative Leave
Gantt argues the length of his ten-month administrative leave during
IAD’s investigation of his domestic dispute was excessive, and thus an
adverse employment action. As an initial matter, Gantt fails to identify any
causal link between a protected activity and the length of his leave. And
even assuming this raises a triable issue of fact for the elements of a prima
facie case for retaliation, Gantt’s claim nonetheless fails. The City provided
clear and convincing evidence that Gantt was the subject of multiple,
simultaneous IAD investigations for alleged misconduct, a legitimate basis
14
for Gantt’s lengthy administrative leave. (Mize-Kurzman v. Marin
Community College Dist. (2012) 202 Cal.App.4th 832, 862 [employers satisfy
burden of providing a legitimate reason for adverse employment action if it
“reasonably believed their conduct was justified on the basis of evidence
separate and apart from the fact that the employee made a protected
disclosure”].)
On April 14, 2016, and based on Gantt’s own report, IAD opened an
investigation of Gantt’s domestic dispute with his wife. Gantt allegedly
pushed and kicked his wife and pointed a gun at her during this incident.
His wife was not injured, and she did not press charges against him. The
next day, OPD placed Gantt on administrative leave. Although the
investigation continued through October 2016, there were several weeks
when IAD officers did not appear to work on Gantt’s case. In any event,
IAD’s October 2016 report exonerated Gantt regarding the firearm allegation
and it concluded there was insufficient evidence he engaged in domestic
violence. But Gantt remained on administrative leave for four more months,
until February 21, 2017.
The City, however, produced evidence that OPD did not tie Gantt’s
administrative leave solely to this investigation. During his leave, IAD
investigated the June 11, 2016 complaint regarding Gantt’s disclosure of
homicide materials to his girlfriend. That same month, IAD opened a new
investigation into a civilian complaint that Gantt did not properly investigate
a 2011 homicide. During that investigation, IAD discovered several boxes of
evidence at Gantt’s desk that were not properly maintained or returned to
evidence. For that reason, IAD opened a related, secondary investigation in
September 2016.
15
These investigations extended beyond the timelines for investigating
Gantt’s domestic dispute. IAD sustained findings on the civilian complaint
that he violated OPD policies by failing to return homicide materials
containing witness testimony on November 28, 2016, and OPD agreed with
that conclusion on December 13, 2016. For the secondary investigation, OPD
agreed with IAD’s findings that Gantt failed to properly maintain evidence in
April 2017. And IAD completed its report regarding Gantt’s alleged
disclosure of homicide materials in December 2016. After Gantt retired, OPD
notified him in June 2017 that he would be subject to discipline if he returned
to work.
The evidence that OPD kept Gantt on excessive administrative leave to
retaliate against him is weak. (Colarossi v. Coty US Inc. (2002) 97
Cal.App.4th 1142, 1154.) Gantt argues the length of IAD’s domestic dispute
investigation violated OPD policy for completing investigations within six
months. But this timeline appears aspirational rather than based on any
statute. Generally, public agencies like IAD must complete their
investigations within one year of discovering misconduct. (Gov. Code, § 3304,
subd. (d).) Per the former head of IAD, the division strived to complete
investigations within six months but sometimes extended that deadline due
to the complexity of the issues. Here, the IAD investigation of the domestic
dispute did not exceed one year.
Relying on two IAD officer statements, Gantt also declares OPD uses
IAD investigations to retaliate against officers, including him. One
investigator questioned OPD’s insistence on investigating Gantt’s conduct
unrelated to his 2016 domestic dispute. Another investigator noted,
depending on the subject, some domestic violence investigations were narrow
and closed quickly, often without discipline, while others were expanded,
16
kept open for many months, and resulted in discipline. Reliance on these
declarations is misplaced. Rather than expanding Gantt’s domestic dispute
investigation, IAD initiated multiple investigations triggered by third-party
complaints unrelated to the domestic dispute. The City presented evidence
that OPD initiates IAD investigations when it receives information that
discloses any accusation of misconduct by OPD personnel, and that an officer
has a mandatory obligation to report information regarding potential
misconduct. Consistent with this policy, IAD opened additional
investigations after Gantt’s girlfriend and another civilian notified OPD of
Gantt’s misconduct.
Finally, there is no merit to Gantt’s speculative assertion that
Lieutenant A. improperly influenced these IAD investigations. Aside from
noting Lieutenant A. once worked in IAD and was a high ranking OPD
officer, Gantt fails to cite anything in the record to support this claim.
(Joseph, supra, 1 Cal.App.4th at p. 161.) The “evidence as a whole is
insufficient to permit a rational inference that [OPD’s] actual motive” in
keeping Gantt on extended administrative leave was discriminatory or
retaliatory. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 361;
Colarossi v. Coty US Inc., supra, 97 Cal.App.4th at p. 1153.) Summary
judgment for the City was proper.
II. Post-Summary Judgment Orders
We reject Gantt’s assertion that Judge Reilly erroneously denied his
motion for a new trial because he was not the one to rule on Gantt’s summary
judgment motion. Generally, the judge who presided at trial, in this case
Judge Markman, must hear motions for a new trial. (Code Civ. Proc., § 661.)
But a different judge of the same court may hear the motion if the original
judge is unable or absent at the time of the hearing. (Ibid.) After Judge
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Markman granted the City summary judgment, Gantt’s case was reassigned
to Judge Reilly for all purposes, indicating Judge Markman’s unavailability
or absence. (Mackey v. Superior Court (1990) 221 Cal.App.3d 1124, 1126
[under the direct calendaring system, “the judge normally assigned to that
department would, barring unforeseen circumstances, preside over all
matters in the case, including trial”].) The record does not indicate Judge
Markman was otherwise present or able to hear the motion for a new trial.
(Cf. Francis v. Superior Court of Los Angeles County (1935) 3 Cal.2d 19, 27
[new judge improperly heard motion for new trial where an affidavit noted
the original judge was “sitting in his department and was available for his
usual duties”].)
Nor did Judge Reilly err by entering the judgment rendered by Judge
Markman, contrary to Gantt’s assertions. A successor judge may enter a
judgment, a ministerial task, once the judgment has been rendered.
(Hayward Union High Sch. Dist. of Alameda County v. Madrid (1965) 234
Cal.App.2d 100, 114; Brown v. Superior Court of Los Angeles County (1925)
70 Cal.App.732, 735.) There was no impropriety in this sequence of events.
Gantt’s cited authorities do not alter this conclusion.
DISPOSITION
The judgment is affirmed. The City is entitled to its costs on appeal.
18
_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Brown, J.*
A161268
* Associate Justice of the Court of Appeal, First Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
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