Alcocer v. City of Los Angeles CA2/1

Filed 1/22/21 Alcocer v. City of Los Angeles CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
STEFANIE ALCOCER, B296880
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC654793)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard L. Fruin, Jr., Judge. Judgment
reversed with directions.
McNicholas & McNicholas, Matthew S. McNicholas,
Courtney C. McNicholas, Douglas D. Winter; Esner, Chang &
Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiff and
Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Assistant City Attorney, Scott Marcus and Blithe S. Bock,
Assistant City Attorneys, and Matthew A. Scherb, Deputy City
Attorney, for Defendant and Respondent.
____________________________
Plaintiff and appellant Stefanie Alcocer, an officer of the
Los Angeles Police Department (LAPD), filed suit under the
Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940
et seq.) against defendant and respondent City of Los Angeles
(the City), alleging that a coworker, Officer Harry Lathrop,
subjected Alcocer to unwanted romantic advances and that the
LAPD failed to respond adequately to Lathrop’s behavior after
Alcocer had reported it. Although the caption of Alcocer’s
complaint against the City indicated that the complaint included
three claims under FEHA—i.e., sexual harassment,
discrimination, and retaliation—the body of the complaint
contained separate headings only for the discrimination and
retaliation causes of action.
The City moved for summary judgment or, in the
alternative, summary adjudication on Alcocer’s claims. In its
motion, the City addressed the merits of only Alcocer’s claims for
discrimination and retaliation, and argued that Alcocer had not
pleaded a sexual harassment claim. The trial court ultimately
agreed with the City that Alcocer’s complaint did not raise a
claim of sexual harassment and granted the City’s motion for
summary judgment on the grounds there was no triable issue of
material fact regarding whether: Alcocer suffered an adverse
employment action, the City had discriminatory intent, and there
existed a causal nexus between Alcocer’s complaints of sexual
harassment and the City’s alleged failure to investigate them.
On appeal, Alcocer argues, inter alia, that (1) her complaint
did contain a sexual harassment claim, (2) the City failed to meet
2
its initial burden of production on the sexual harassment claim,
and (3) the City was not entitled to judgment as a matter of law
on Alcocer’s discrimination and retaliation claims.
Although we acknowledge there is a discrepancy between
the causes of action listed in the caption and those specified in
the headings in the body of the complaint, we conclude that the
pleading provided adequate notice to the City that Alcocer
intended to assert a FEHA sexual harassment claim. To the
extent this potential ambiguity did, in fact, cause any confusion,
the City could have clarified the scope of Alcocer’s complaint
during the discovery process.
The City’s motion, moreover, never challenged the
evidentiary sufficiency of Alcocer’s sexual harassment cause of
action and, therefore, the burden did not shift to Alcocer to
establish a triable issue of material fact on that claim in her
opposition. On the other hand, Alcocer has not shown the trial
court erred in concluding that she failed to establish a triable
issue of material fact regarding whether she suffered an adverse
employment action, which is a necessary element of her
discrimination and retaliation causes of action. Accordingly, we
reverse the judgment in favor of the City, vacate the order
granting its motion for summary judgment, and remand to the
trial court with directions to deny summary adjudication as to
the sexual harassment claim but grant summary adjudication on
Alcocer’s discrimination and retaliation causes of action.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts pertinent to this appeal.
Immediately below, we also detail the allegations in the
complaint given the City’s contention that Alcocer did not plead a
sexual harassment claim.
3
On March 20, 2017, Alcocer filed a complaint for damages
against the City. The complaint alleges that Alcocer joined the
LAPD as a police officer on or about September 30, 1996, and
that she became a bomb technician in the LAPD Bomb Squad
sometime in or after late 2008.1 On or about April 20, 2016,
Officer Lathrop, a fellow bomb technician who knew that Alcocer
was a homosexual who had a same-sex partner, approached
Alcocer while on duty and revealed that “he was ‘madly in love’
with her and had been in love with her for over six years.”
Lathrop later told Alcocer that he intended to leave his wife
because of his “deep love” for Alcocer. “In response to Lathrop’s
revelation, Plaintiff told him she did not have any reciprocal
feelings for him of a romantic nature, [and] that ‘it was never
going to happen[.]’ Plaintiff told Lathrop to leave her alone and
‘give her space[.]’ ”
Alcocer averred that “[b]eginning in or around
April 20, 2016, and continuing on a daily basis thereafter, Officer
Lathrop stalked Plaintiff, engaging in behavior that included, but
was not limited to: he appeared at restaurants where Plaintiff
was eating; he drove by her work detail/location when he was
assigned to a different detail; he repeatedly and incessantly sent
her emails and text messages; he bombarded her with telephone
calls; he cornered her in an LAPD parking lot and when she
refused to speak to him he became visibly angry and violently
punched an LAPD truck; he contacted her co-workers and friends
to elicit confidential, personal information about her whereabouts
and her conversations; he appeared in public places while she
1 The remainder of this paragraph and the following eight
paragraphs summarize allegations from the complaint. We
express no opinion as to the veracity of these allegations.
4
was on duty, including Los Angeles International Airport, and
begged her to speak with him; he cried to her and pleaded that
she permit him to drive her to training; [and] he followed her
from her work detail to the training site.” Additionally, at a
work-related luncheon held on or about May 13, 2016, “Lathrop
approached Plaintiff and forced himself upon her and kissed her.
Plaintiff pushed him away.”
“On or about June 9, 2016, [Alcocer] met with [her
immediate supervisor, Bomb Squad Sergeant Mike] Salinaz in
person. Plaintiff reported all of the harassment and unwanted
advances of Officer Lathrop.” “On or about June 10, 2016,
Sgt. Salinaz sent [Alcocer] a te[x]t message stating that he had
met with [Captain Cathy] Meek[, the commanding officer of the
Bomb Squad,] as well as the Officer-In-Charge of Bomb Squad,
Lt. II Richard Smith. Salinaz advised Plaintiff that Lathrop was
supposed to ‘stay away’ from her.”
In the months following Alcocer’s initial report of
harassment to Sergeant Salinaz, Alcocer and her supervisors
discussed the prospect of making certain changes to Alcocer’s
schedule to prevent Lathrop and Alcocer from having contact
with one another. On or about June 16, 2016, Alcocer requested
that her schedule be arranged so that she was not scheduled to
work certain details with Lathrop,2 and on several occasions in
July and August 2016, supervisors asked Alcocer to change her
schedule and assignment to avoid having contact with Lathrop.
2 In connection with this request to rearrange Alcocer’s
schedule, the complaint alleges: “This action had NOT been
initiated by any supervisor in the Bomb Squad; [Alcocer] had to
make a specific request not to work in partnership with her
harasser.”
5
On or about November 30, 2016, Lieutenant Smith told Alcocer
he was “ ‘giving [Alcocer] the option’ not to attend weekly unit
meetings as Officer Lathrop would be attending the unit
meetings.” “On December 13, 2016, Lt. Smith told Plaintiff that
if she planned to attend the Bomb Squad Christmas Party, she
would have to leave no later than 12:30 p.m. ‘because [Lathrop]
has to have the opportunity to attend.’ ”
On or about July 18, 2016, Alcocer “advised Sgt. Salinaz
that she could not tolerate being around Officer Lathrop at
all[,] . . . requested that Lathrop’s desk be relocated from next to
hers to a different location,” and stated that “Lathrop was
violating Capt. Meek’s order to ‘stay away’ from” Alcocer because
“Lathrop found excuses to be in the office when she was there”;
“[n]o actions were taken in response” to this complaint. Although
supervisors “advised” Alcocer on or about August 20, 2016 that
Lathrop would not be at the Bomb Squad office when Alcocer was
present, Lathrop appeared at the office on August 23, 2016
“without a legitimate Bomb Squad business-related reason for
doing so.” While Lathrop was in the office on that date, he
“repeatedly walked back and forth slowly behind Plaintiff who
was seated at her desk.”
On August 31, 2016, Alcocer again expressed “her acute
discomfort in having to work around Lathrop,” and Lieutenant
Smith responded by “recommend[ing] that Plaintiff attend a
‘mediation’ with Lathrop” and advising Alcocer that her
supervisors “were going to ‘officially document things’ with a
Form 15.2 ‘Stay Away Order.’ ” Alcocer rejected the offer to
attend mediation, stated that “the Form 15.2 ‘Stay Away Order’
was not good enough[, and] repeated her fear of having Lathrop
in the Bomb Squad.”
6
On September 29, 2016 and November 1, 2016, Alcocer had
two different interviews with Internal Affairs investigators at
which she related her allegations against Lathrop; during the
second interview, Alcocer stated that “she wanted Lathrop to
leave the Bomb Squad and leave her alone.” When Alcocer
contacted the investigator assigned to the case on
December 21, 2016 to determine “the status of her reports, the
investigator replied that he had other cases and was very busy.”
“The investigator assured Plaintiff that he would ‘begin
interviewing’ soon.”
Alcocer spoke with Captain Meek on October 10, 25,
and 29, 2016 about her allegations against Lathrop. On
October 10, 2016, Captain Meek stated that Lathrop’s behavior
“ ‘does not rise to the level of misconduct’ and [the Captain]
refused to initiate a personnel complaint against
Officer Lathrop.” On October 25, 2016, Alcocer “reiterated the
incident on the rooftop when Lathrop had cornered her and
punched trucks.”3 On October 29, 2016, Captain Meek stated
that “she had given Lathrop a written ‘Stay Away’ order and that
their schedules would not intersect,” and Alcocer responded that
“the Bomb Squad was a small unit and that the damage had been
done.”
Although Lathrop was eventually removed from the Bomb
Squad on December 26, 2016, Captain Meek “issued a direct
order that Officer Lathrop’s Bomb Squad equipment and gear
‘was not to be reassigned’ and that it was ‘being stored for Officer
3 While the complaint does not specify when this incident
occurred, Alcocer claimed in her opposition to the City’s motion
that this event transpired on June 7, 2016.
7
Lathrop[.]’ Officer Lathrop was permitted to keep his City
vehicle and telephone.”
The body—as opposed to the caption—of Alcocer’s
complaint contains headings identifying only two causes of
action: “Discrimination in violation of FEHA, Cal. Gov’t C.
§§ 12940, et seq.” and “Retaliation in violation of FEHA, Cal.
Gov’t C. §§ 12940, et seq.” (Some capitalization omitted.) These
two headings follow the section titled “General Allegations” and
precede the prayer for relief. (Some capitalization omitted.)
Conversely, three causes of action appear in the column to the
right of the caption provided at the beginning of the pleading:
“1. Discrimination in Violation of FEHA [¶] (Cal. Gov’t Code
§ 12940 et seq.) [¶] 2. Sexual Harassment in Violation of FEHA
[¶] (Cal. Gov’t Code § 12940 et seq.) [and] [¶] 3. Retaliation in
Violation of FEHA [¶] (Cal. Gov’t Code § 12940 et seq.)”
On April 17, 2017, the City filed an answer, which
contained a general denial to “each and every allegation
contained in the Complaint,” and asserted various affirmative
defenses.
On February 13, 2018, the City filed a motion for summary
judgment or, in the alternative, summary adjudication on
Alcocer’s discrimination and retaliation causes of action. The
City argued that Alcocer’s cause of action for discrimination
failed because she had not suffered an adverse employment
action, there was no evidence that any of the City’s actions was
based on her sexual orientation, and the City’s actions “were
based on personnel management decisions, which constitute
legitimate, non-discriminatory reasons.”
Similarly, the City contended that the retaliation claim
failed because Alcocer had not suffered an adverse employment
8
action, and the City’s actions “were based on personnel
management decisions, which constitute legitimate, non-
retaliatory reasons.” Neither the City’s notice of motion nor its
supporting memorandum of points and authorities contended the
City was entitled to judgment as a matter of law on a claim of
sexual harassment. Instead, the City asserted: “Although the
Complaint’s caption claims to bring a third cause of action, the
actual pleaded claims are for discrimination and retaliation,
which as the only actionable claims are addressed by way of this
Motion.”
On January 4, 2019, Alcocer filed her opposition to the
City’s motion. Alcocer argued that “[t]he City’s motion d[id] not
address, challenge, or mention the ongoing, continuous, severe,
and pervasive admitted sexual harassment of Plaintiff . . . by
LAPD Officer Harry Lathrop[,] and the Department’s retaliation
against Plaintiff after she reported the harassment and the toxic
environment that the Bomb Squad Command permitted to exist.”
Alcocer also intimated that if the trial court “construe[d her]
pleading broadly,” it would find that a claim of sexual
harassment is “encompassed by the controlling pleading.” She
further contended there were triable issues of fact on her sexual
harassment, discrimination, and retaliation claims.
Of particular relevance to the instant appeal, Alcocer
claimed that “[t]he most egregious adverse [employment] actions
[she suffered] were 1) permitting the hostile work environment to
exist despite Plaintiff’s repeated complaints and 2) refusing to
take appropriate action as required by LAPD policy.” Alcocer
also complained that Lathrop was “given preferential treatment
over Plaintiff” with regard to scheduling, assignments, and unit
meetings. (Boldface & some capitalization omitted.)
9
On January 16, 2019, the City filed its reply brief, arguing,
inter alia, that Alcocer could not add a cause of action for sexual
harassment by way of her opposition papers.
On January 24, 2019, the trial court heard the City’s
motion. At the hearing, the court stated its belief that “[t]here
are two causes of action” that “are labeled in the operative
complaint,” and “[h]arassment is not one of them.” Alcocer’s trial
counsel responded that while the court was “correct that there
was not a separately-labeled cause of action [for harassment] in
the body of the complaint[,] that was a mistake, obviously,
because it [is] in the caption” and the pleading’s factual
averments “allege each of the elements of a harassment cause of
action under FEHA.” The parties and the trial court thereafter
discussed whether the City was entitled to judgment as a matter
of law on Alcocer’s retaliation and discrimination claims.
Later that day, the trial court issued a ruling granting the
City’s motion for summary judgment. The ruling did not address
the merits of the claim of sexual harassment discussed in
Alcocer’s opposition because, “[w]hile the CAPTION on the
pleading indicates that it includes a [second cause of action] for
‘sexual harassment,’ the body of the Complaint doesn’t include
any charging allegations re a harassment claim.” (Boldface
omitted.)
The trial court also ruled there were no triable issues of
material fact on Alcocer’s discrimination and retaliation claims
because “Plaintiff’s evidence [was] insufficient to demonstrate”:
Alcocer suffered an adverse employment action, the City’s
conduct was motivated by Alcocer’s sexual orientation, and “a
causal nexus between Plaintiff’s complaining about harassment
and the purported failure to investigate same.” In particular, the
10
trial court rejected the following purported adverse employment
actions identified by Alcocer: “[T]he CITY permitted a hostile
work environment to exist[,] . . . it ‘refused to take appropriate
action as required by LAPD policy[,]’ ” and “Lathrop was given
preferential treatment . . . .”
On February 20, 2019, the trial court entered a judgment in
favor of the City and against Alcocer in accordance with the
court’s January 24, 2019 order granting the City’s motion.
Alcocer appealed the judgment on April 5, 2019.
STANDARD OF REVIEW
Under Code of Civil Procedure section 437c, “[a] party may
move for summary judgment in an action or proceeding if it is
contended that the action has no merit or that there is no
defense to the action or proceeding.” (Code Civ. Proc., § 437c,
subd. (a)(1).) Similarly, “[a] party may move for summary
adjudication as to one or more causes of action . . . if the party
contends that the cause of action has no merit . . . .” (Id.,
subd. (f)(1).) “A motion for summary adjudication may be made
by itself or as an alternative to a motion for summary judgment
and shall proceed in all procedural respects as a motion for
summary judgment. . . .” (Id., subd. (f)(2).)
“A defendant . . . has met his or her 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 established, or that there is a complete
defense to the cause of action. Once the defendant . . . has met
that burden, the burden shifts to the plaintiff . . . to show that a
triable issue of one or more material facts exists as to the cause of
action or a defense thereto. The plaintiff . . . shall not rely upon
the allegations or denials of its pleadings to show that a triable
11
issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists
as to the cause of action or a defense thereto.” (Code Civ. Proc.,
§ 437c, subd. (p)(2); see also Laabs v. City of Victorville (2008)
163 Cal.App.4th 1242, 1250 (Laabs) [“[T]he moving party bears
the initial burden of production to make a prima facie showing
that no triable issue of material fact exists. Once the initial
burden of production is met, the burden shifts to the responding
party to demonstrate the existence of a triable issue of material
fact.”].)
“We review an order granting or denying summary
judgment or summary adjudication independently. [Citations.]
‘ “ ‘First, we identify the issues raised by the pleadings, since it is
these allegations to which the motion must respond; secondly, we
determine whether the moving party’s showing has established
facts which negate the opponent’s claims and justify a judgment
in movant’s favor; when a summary judgment motion prima facie
justifies a judgment, the third and final step is to determine
whether the opposition demonstrates the existence of a triable,
material factual issue.’ ” ’ [Citation.]” (Los Angeles Unified
School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th
480, 492 (Los Angeles Unified School Dist.).)
“ ‘ “[D]e novo review [of a ruling on a motion for summary
judgment and/or summary adjudication] does not obligate us to
cull the record for the benefit of the appellant in order to attempt
to uncover the requisite triable issues. As with an appeal from
any judgment, it is the appellant’s responsibility to affirmatively
demonstrate error and, therefore, to point out the triable issues
the appellant claims are present by citation to the record and any
supporting authority. In other words, review is limited to issues
12
which have been adequately raised and briefed.” ’ [Citation.]”
(See Los Angeles Unified School Dist., supra, 57 Cal.App.5th at
p. 492.)
DISCUSSION
The parties dispute whether Alcocer’s complaint included a
sexual harassment claim to which the City needed to respond in
its motion, and, if so, whether the City was nonetheless entitled
to judgment as a matter of law on that claim. They also dispute
whether Alcocer established triable issues of fact on her
discrimination and retaliation causes of action.
As discussed in greater detail below, we conclude the trial
court erred in finding that the complaint did not raise a sexual
harassment claim against the City. Accordingly, the trial court
erred in granting summary judgment because the City failed to
discharge its initial burden to show that there were no triable
issues of material fact as to the elements of that harassment
claim. On the other hand, Alcocer fails to show that the trial
court erred in finding that there was no triable issue of material
fact as to the absence of an adverse employment action, and that
her discrimination and retaliation claims therefore failed as a
matter of law.
A. The Trial Court Erroneously Ruled that Alcocer’s
Complaint Did Not Include a FEHA Sexual
Harassment Cause of Action
“ ‘To create a triable issue of material fact, the opposition
evidence must be directed to issues raised by the pleadings.
[Citation.] If the opposing party’s evidence would show some
factual assertion, legal theory, defense or claim not yet pleaded,
that party should seek leave to amend the pleadings before the
13
hearing on the summary judgment motion. [Citations.]’ ”
(Laabs, supra, 163 Cal.App.4th at p. 1253.) “In assessing
whether the issues raised by plaintiff in opposing summary
judgment are encompassed by the controlling pleading, we
generally construe the pleading broadly [citation]; but the
pleading must allege the essential facts ‘ “ ‘with reasonable
precision and with particularity sufficient to acquaint a
defendant with the nature, source and extent of [the] cause of
action.’ ” ’ [Citation.]” (Soria v. Univision Radio Los Angeles, Inc.
(2016) 5 Cal.App.5th 570, 585 (Soria); see also id. at pp. 585–586
[concluding that a plaintiff could not raise a FEHA claim of
discrimination based on medical condition in her opposition to
the defendants’ summary judgment motion because “even
viewing [her] pleading liberally, [plaintiff] did not allege
discrimination based on medical condition sufficiently to put
[defendants] on notice she was asserting” that claim].) This
rule is intended to ensure that the parties are “acting on a
known or set stage” such that “Code of Civil Procedure
section 437c . . . ha[s] procedural viability.” (See Laabs, supra,
163 Cal.App.4th at pp. 1258–1259, fn. 7.)
Construing the complaint broadly, we conclude that it put
the City on notice that Alcocer was asserting a claim of sexual
harassment under FEHA, notwithstanding the absence of a
separate heading expressly identifying this cause of action in the
body of the complaint. As we observed in the Factual and
Procedural Background, the complaint alleges that beginning in
April 2016, Officer Lathrop repeatedly subjected Alcocer to
unwanted romantic advances; Alcocer first reported this behavior
to Sergeant Salinaz on or about June 9, 2016; and the City’s
response to Alcocer’s complaints was slow and inadequate.
14
Consequently, Alcocer arguably pleaded the elements of a hostile
work environment sexual harassment claim.4 In light of these
averments, and the fact the complaint’s caption indicates that
“Sexual Harassment in Violation of FEHA [¶] (Cal. Gov’t Code
§ 12940 et seq.)” is one of the causes of action raised therein,
we conclude that Alcocer “allege[d] the essential facts ‘ “ ‘with
reasonable precision and with particularity sufficient to acquaint
[the City] with the nature, source and extent of [Alcocer’s FEHA
sexual harassment] cause of action.’ ” ’ ”5 (See Soria, supra,
5 Cal.App.5th at p. 585.)
The City resists this conclusion, claiming that “[a]
complaint’s caption ‘constitutes no part of the statement of the
cause of action.’ ” (Quoting Falahati v. Kondo (2005)
4 (See Lyle v. Warner Brothers Television Productions
(2006) 38 Cal.4th 264, 283 [“[T]o establish liability in a FEHA
hostile work environment sexual harassment case, a plaintiff
employee must show she was subjected to sexual advances,
conduct, or comments that were severe enough or sufficiently
pervasive to alter the conditions of her employment and create a
hostile or abusive work environment.”]; Gov. Code, § 12940,
subd. (j)(1) [“Harassment of an employee . . . shall be unlawful if
the entity, or its agents or supervisors, knows or should have
known of this conduct and fails to take immediate and
appropriate corrective action.”].)
5 The issue here is not whether the complaint sufficiently
states a cause of action for sexual harassment. As the City itself
argues, before us is a summary judgment motion and not a
motion for judgment on the pleadings. Under Soria and Laabs,
the proper inquiry is whether the complaint gave the City
sufficient notice that Alcocer intended to raise a sexual
harassment claim. As set forth in our discussion, we conclude
that it did.
15
127 Cal.App.4th 823, 829 (Falahati).) The City’s reliance on
Falahati is misplaced.
There, the Court of Appeal reversed an order denying a
defendant’s motion to vacate a default judgment in part because
the operative complaint failed to state a cause of action against
that defendant. (See Falahati, supra, 127 Cal.App.4th at p. 829.)
The appellate court reasoned that the pleading did “not allege
any conduct on [defendant’s] part caused any harm, loss or
damage on the plaintiffs’ part.” (See ibid.) The operative
complaint thus violated Code of Civil Procedure section 425.10,
subdivision (a), which provides that “ ‘[a] complaint . . . shall
contain . . . [a] statement of the facts constituting the cause of
action, in ordinary and concise language.’ ” (See Falahati, at
p. 829, fn. 4.) The court further concluded that the following did
not cure this pleading deficiency: “[A] boilerplate allegation
[that] each defendant was the agent and employee of the
others[,] . . . some charging allegations respecting ‘defendants
and each of them[,]’ ” and the inclusion of the defendant’s name
in the caption. (See id. at p. 829.)
Thus, the quotation from Falahati upon which the City
relies in fact supports only the unremarkable proposition that
simply adding a defendant’s name to the caption does not satisfy
the statutory requirement that the complaint contain the facts
constituting the cause of action. Falahati had no occasion to
consider whether the complaint’s caption may be considered in
conjunction with the pleading’s factual allegations in order to
ascertain which legal theories a plaintiff intends to raise and
whether a defendant had fair notice of those claims.
In addition, the City cites Belasco v. Wells (2015)
234 Cal.App.4th 409, and Kelecheva v. Multivision Cable T.V.
16
Corp. (1993) 18 Cal.App.4th 521, for the proposition that “courts
look to the actually-pleaded causes [of action] in the complaint’s
body, not those merely listed on a caption page” to “determine, on
summary judgment, what causes of action are specified
expressly.” In those decisions, the Court of Appeal merely noted
in passing that particular claims identified in the complaints’
caption were not reasserted in the body of those pleadings. (See
Belasco, supra, 234 Cal.App.4th at p. 413, fn. 4; Kelecheva, supra,
18 Cal.App.4th at p. 525, fn. 1.) In contrast, here, Alcocer’s
pleading is replete with allegations of sexual harassment, in
addition to reference to the claim in the caption. All that was
missing was a heading. We fail to discern how Belasco and
Kelecheva are instructive on the issues before us. (See Belasco at
pp. 413, 419 [discussing whether the plaintiff’s claims were
barred by a settlement agreement]; Kelecheva at pp. 524–525
[addressing whether the plaintiff’s claims fell within the
exclusive jurisdiction of the National Labor Relations Board
under the federal preemption doctrine].) Accordingly, these
decisions are of no assistance to the City.
Admittedly, the fact that Alcocer’s trial counsel identified a
cause of action for sexual harassment on the caption page but
failed to include a heading for it in the body of the complaint
could create a potential ambiguity in the pleading. Nevertheless,
the City indicated that it was aware of this discrepancy in the
pleading when it stated the following in its memorandum of
points and authorities in support of the motion: “Although the
Complaint’s caption claims to bring a third cause of action, the
actual pleaded claims are for discrimination and retaliation,
which as the only actionable claims are addressed by way of this
Motion.” Indeed, at Alcocer’s deposition, which was conducted
17
months before the filing of the instant motion, the City’s trial
counsel pursued several lines of inquiry related to Alcocer’s claim
of sexual harassment, including when she had first reported
Lathrop’s behavior to a supervisor and whether she believed that
the LAPD’s response to that behavior was adequate. Insofar as
the City was genuinely unsure as to whether Alcocer was leveling
a sexual harassment claim against it, the City could have
eliminated any such uncertainty during the discovery process.
(See A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019)
38 Cal.App.5th 677, 695 [“ ‘ “[W]here a complaint is in some
respects uncertain, . . . ambiguities can be clarified under modern
discovery procedures.” ’ ”]; cf. Soria, 5 Cal.App.5th at pp. 586–587
[concluding that “[i]t was [defendant’s] obligation through
discovery to learn the factual grounds for [a particular] theory of
liability,” even though that theory was supported by only “vague,
generalized assertions” in the complaint].) The City’s apparent
failure to conduct discovery on this issue does not warrant taking
away Alcocer’s day in court on her sexual harassment claim.
Finally, the City argues that although a paragraph in the
complaint alleges the City violated Alcocer’s “rights under both
state and federal law, including but not limited to the Fair
Employment and Housing Act (Cal. Gov’t C. §§ 12940, et seq.)”
and is “liable for retaliation in violation of public policy” and
“may be liable for constructive discharge,” “[n]o one suggests . . .
the City had to oppose summary judgment on all possible state
and federal law theories simply because they were mentioned
before the enumerated causes of action.” The City apparently
argues that the inclusion of this paragraph in the pleading
demonstrates that its reference to a sexual harassment cause of
18
action in the caption was merely a holdover “from a shell
pleading.”
This argument borders on hyperbole. Alcocer’s caption
does not include a non-FEHA cause of action; it does include a
FEHA sexual harassment claim, which is supported by many
specific factual allegations in the body of the pleading. The City
acknowledges in its appellate briefing that Alcocer’s complaint
does not plead a constructive discharge claim because she
does not allege she left her job, and, according to the City, she
could not have asserted a common-law claim because “a plaintiff
cannot allege a non-statutory cause of action against a
municipality.” Thus, while it is arguable that any references to
such non-FEHA claims in the complaint were “derive[d] from a
shell pleading,” Alcocer’s FEHA sexual harassment claim cannot
be tarred with the same brush.
B. The City Failed to Meet Its Initial Burden to Show
the Absence of a Triable Issue of Material Fact as to
Alcocer’s Sexual Harassment Claim and the Trial
Court Thus Erred in Granting Summary Judgment
As set forth in the Factual and Procedural Background, the
City’s motion did not address the merits of Alcocer’s sexual
harassment claim because it thought, albeit incorrectly, that
claim was nowhere in the operative pleading. Accordingly,
Alcocer argues the City did not satisfy its initial burden to show
the absence of a triable issue of material fact regarding her
sexual harassment claim and “it was [thus] inappropriate [for the
trial court] to grant summary judgment as to that claim, even
without any showing in opposition by” her. The City’s appellate
briefing apparently ignores Alcocer’s argument regarding the
City’s initial burden, but instead maintains that “Alcocer’s
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evidence in opposition to the City’s motion does not support the
[sexual harassment] claim.”
We agree with Alcocer that the City failed to meet its initial
burden of production, under which it was required to
“ ‘ “ ‘ “show[ ] the [trial] court that [Alcocer] ‘has not established,
and cannot reasonably expect to establish,’ ” the elements of . . .
her cause of action[,]’ ” ’ ” and that, as a consequence, the burden
did not “shift[ ] to [Alcocer] to demonstrate, by reference to
specific facts, . . . there is a triable issue of material fact as to the
cause of action.” (See Soria, supra, 5 Cal.App.5th at pp. 582–
583.) Accordingly, we reverse the trial court’s grant of summary
judgment without considering whether the evidence Alcocer
offered with her opposition was sufficient to establish a triable
issue of material fact on her sexual harassment cause of action.
(See id. at pp. 586–587 [holding that a defendant’s failure to
address a cause of action in its moving papers was “fatal to its
effort to obtain summary judgment/summary adjudication as to
th[at] claim”].) We express no opinion on the merits of her sexual
harassment claim at trial or upon a subsequent dispositive
motion, if any.
C. Alcocer Fails to Demonstrate the Trial Court Erred
in Concluding There Are No Triable Issues of
Material Fact on Her Discrimination and Retaliation
Causes of Action as to the Essential Element of an
Adverse Employment Action.
“To establish a prima facie case for unlawful discrimination
[under FEHA], a plaintiff must provide evidence that ‘(1) he [or
she] was a member of a protected class, (2) he [or she] was
qualified for the position he [or she] sought or was performing
competently in the position he [or she] held, (3) he [or she]
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suffered an adverse employment action, such as termination,
demotion, or denial of an available job, and (4) some other
circumstance suggests discriminatory motive.’ ” (See Soria,
supra, 5 Cal.App.5th at pp. 583–584.)
Likewise, an adverse employment action is an essential
element of a claim of retaliation under FEHA. (Husman v.
Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1192–
1193.) Specifically, “ ‘[e]mployees may establish a prima facie
case of unlawful retaliation by showing that (1) they engaged in
activities protected by the FEHA, (2) their employers
subsequently took adverse employment action against them, and
(3) there was a causal connection between the protected activity
and the adverse employment action.’ ” (Ibid.)
In her opening appellate brief, Alcocer asserts the City
was not entitled to judgment as a matter of law on her
discrimination and retaliation claims in part because she had
proffered evidence showing she suffered the following purported
adverse employment actions: “1) [the City] permitt[ed] the
hostile work environment to exist despite [her] repeated
complaints[;] . . . 2) [the City] refus[ed] to take appropriate action
as required by LAPD policy”; and 3) Lathrop “was given
preferential treatment over” Alcocer with regard to schedules,
work assignments, and attendance at work-related events (e.g.,
unit meetings).
The City challenges the first purported adverse
employment action, arguing Alcocer “had virtually no contact
with Lathrop” after she first reported his inappropriate behavior
to Sergeant Salinaz, and Alcocer saw Lathrop in the main
downtown office on only “a ‘few,’ sporadic occasions” during that
timeframe. Alcocer does not respond to this argument at all in
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her reply brief, and she did not anticipate and address this
contention in her opening brief. Alcocer thus “impliedly
concedes” that the City is correct on this point. (See Rudick v.
State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90
[concluding that the appellants made an implicit concession by
“failing to respond in their reply brief to the [respondent’s]
argument on th[at] point.”]; see also Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 582 [“ ‘[A]n employee claiming
harassment based upon a hostile work environment must
demonstrate that the conduct complained of was severe enough
or sufficiently pervasive to alter the conditions of employment
and create a work environment that qualifies as hostile or
abusive to employees because of their [protected status].’
[Citation.]”].)
In its ruling on the City’s motion, the trial court expressly
rejected Alcocer’s other two asserted adverse employment actions
concerning the LAPD’s alleged failure to follow its own policies
and its supposed preferential treatment of Lathrop. Alcocer
does not explain why—let alone cite any authority demonstrating
that—this aspect of the trial court’s ruling was erroneous. She
thus waives any appellate challenge to that decision. (See
Los Angeles Unified School Dist., supra, 57 Cal.App.5th at p. 492
[“ ‘As with an appeal from any judgment, it is the appellant’s
responsibility to affirmatively demonstrate error and, therefore,
to point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.’ ”]; Cahill v.
San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956
[“ ‘Appellate briefs must provide argument and legal authority for
the positions taken. . . . The absence of cogent legal argument or
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citation to authority allows this court to treat the contention as
waived.’ ”].)
For the foregoing reasons, we find that Alcocer has not
shown the trial court erred in ruling that she failed to establish a
triable issue of material fact on this essential element of her
discrimination and retaliation claims. Thus, upon remand, the
trial court should grant summary adjudication in favor of the
City on these two causes of action.
DISPOSITION
The judgment in favor of City of Los Angeles is reversed,
and the matter is remanded to the trial court with directions to
vacate the order granting summary judgment and enter a new
order denying summary adjudication as to Stefanie Alcocer’s
sexual harassment cause of action and granting summary
adjudication as to her discrimination and retaliation causes of
action. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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