This case was last updated from Los Angeles County Superior Courts on 02/29/2020 at 00:46:14 (UTC).

ALBERTO VARGAS ET AL VS CITY OF LONG BEACH

Case Summary

On 09/13/2017 ALBERTO VARGAS filed a Labor - Other Labor lawsuit against CITY OF LONG BEACH. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD FRUIN and RAFAEL A. ONGKEKO. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5610

  • Filing Date:

    09/13/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD FRUIN

RAFAEL A. ONGKEKO

 

Party Details

Plaintiffs and Petitioners

VARGAS ALBERTO

ORDUNO PABLO

Defendants and Respondents

LONG BEACH CITY OF

DOES 1 TO 50

CITY OF LONG BEACH

Other

TROCK YAEL ESQ.

Interested Parties and Not Classified By Court

NAGY CHRISTIAN E. FOY

COUNTY OF LOS ANGELES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SMITH GREGORY W. ESQ.

TROCK YAEL ESQ.

TROCK YAEL

SMITH GREGORY W.

Defendant and Respondent Attorneys

SILCOX VICTORIA A.

SHAEFFER GEORGE BILL

JENKINS HALEH R.

SHAEFFER JR. GEORGE W. "BILL"

WEBB EMILY

SHAEFFER GEORGE W.BILL JR.

Not Classified By Court Attorney

NAGY CHRISTIAN E

 

Court Documents

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

8/14/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

8/14/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Jury Instructions

8/15/2019: Jury Instructions

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

8/21/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

8/21/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Status Report

10/22/2019: Status Report

Order - ORDER [PROPOSED] ORDER REGARDING CONTINUANCE OF FINAL STATUS CONFERENCE

10/25/2019: Order - ORDER [PROPOSED] ORDER REGARDING CONTINUANCE OF FINAL STATUS CONFERENCE

Opposition - OPPOSITION PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

5/28/2019: Opposition - OPPOSITION PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION

Opposition - OPPOSITION PLAINTIFF'S COMPENDIUM OF EXHIBITS IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

5/28/2019: Opposition - OPPOSITION PLAINTIFF'S COMPENDIUM OF EXHIBITS IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

Opposition - OPPOSITION PLAINTIFFS' OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

5/28/2019: Opposition - OPPOSITION PLAINTIFFS' OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS

Separate Statement

5/28/2019: Separate Statement

Reply - REPLY DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

6/5/2019: Reply - REPLY DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION DECLARATION OF DARREN LANCE

6/5/2019: Declaration - DECLARATION DECLARATION OF DARREN LANCE

Proof of Service by Mail

6/5/2019: Proof of Service by Mail

Objection - OBJECTION DEFENDANT'S EVIDENTIARY OBJECTIONS TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

6/5/2019: Objection - OBJECTION DEFENDANT'S EVIDENTIARY OBJECTIONS TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION SUPPLEMENTAL DECLARATION OF GEORGE W. "BILL" SHAEFFER

6/5/2019: Declaration - DECLARATION SUPPLEMENTAL DECLARATION OF GEORGE W. "BILL" SHAEFFER

Opposition - OPPOSITION TO MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL RECORDS

6/7/2019: Opposition - OPPOSITION TO MOTION FOR DISCOVERY OF PEACE OFFICER PERSONNEL RECORDS

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

6/12/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

140 More Documents Available

 

Docket Entries

  • 03/03/2020
  • Hearing03/03/2020 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/29/2019
  • Docketat 09:30 AM in Department 56; Jury Trial - Not Held - Vacated by Court

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  • 10/29/2019
  • Docketat 08:30 AM in Department 56; Final Status Conference - Not Held - Continued - Stipulation

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  • 10/25/2019
  • DocketOrder ([Proposed] Order Regarding Continuance of Final Status Conference); Filed by City of Long Beach (Defendant)

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  • 10/22/2019
  • DocketStatus Report; Filed by City of Long Beach (Defendant)

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  • 08/26/2019
  • Docketat 09:30 AM in Department 56; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 08/21/2019
  • Docketat 08:30 AM in Department 56; Final Status Conference - Held - Continued

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  • 08/21/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Clerk

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  • 08/21/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 08/15/2019
  • DocketJury Instructions; Filed by Alberto Vargas (Plaintiff); Pablo Orduno (Plaintiff)

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216 More Docket Entries
  • 10/17/2017
  • DocketAssociation of Attorney; Filed by Alberto Vargas (Plaintiff); Pablo Orduno (Plaintiff)

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  • 10/17/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Alberto Vargas (Plaintiff); Pablo Orduno (Plaintiff)

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  • 09/19/2017
  • Docketat 00:00 AM in Department 15; Unknown Event Type - Held - Motion Granted

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  • 09/19/2017
  • DocketMinute Order

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  • 09/19/2017
  • DocketMinute order entered: 2017-09-19 00:00:00; Filed by Clerk

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  • 09/14/2017
  • DocketDECLARATION UNDER C.C.P. SECTION 170.6 (PEREMPTORY CHALLENGE)

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  • 09/14/2017
  • DocketDeclaration; Filed by Plaintiff/Petitioner

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  • 09/13/2017
  • DocketComplaint; Filed by Alberto Vargas (Plaintiff); Pablo Orduno (Plaintiff)

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  • 09/13/2017
  • DocketCOMPLAINT FOR DAMAGES: 1. VIOLATIONS OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT (RETALIATION); ETC

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  • 09/13/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: ****5610 Hearing Date: March 24, 2022 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALBERTO VARGAS, et al.,

Plaintiffs,

vs.

CITY OF LONG BEACH, et al.,

Defendants.

CASE NO.: ****5610

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Date: March 24, 2022

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant City of Long Beach (“Defendant” or “City”)

RESPONDING PARTY: Plaintiffs Alberto Vargas (“Vargas”) and Pablo Orduno (“Orduno”) (collectively, “Plaintiffs”)

BACKGROUND

This case arises out of an employee/employer relationship. Plaintiff Vargas was first employed by the Long Beach Police Department (“LBPD”) in approximately 1994 and Plaintiff Orduno was first employed by LBPD in approximately 1999. (Defendant’s Separate Statement of Undisputed Material Facts (“UMF”) 1.) Plaintiffs’ employment with the LBPD was terminated on May 23, 2017. (UMF 2.)

Plaintiffs’ complaint (the “Complaint”) was filed on September 13, 2017 and alleges causes of action for: (1) violations of the California Fair Employment and Housing Act (“FEHA”) (retaliation); and (2) whistleblower retaliation under California Labor Code section 1102.5.

The Complaint alleges that: 1) Vargas filed FEHA discrimination and/or retaliation cases against Defendant in 2004, 2006, 2015 and 2017 and acted as a witness and testified on Orduno’s behalf in a FEHA retaliation case filed by Orduno against Defendant in 2015 [Complaint 7]; and 2) Orduno filed the aforementioned FEHA retaliation case against Defendant and acted as a witness and testified on the behalf of Vargas. (Complaint 8.) Plaintiffs allege that Defendant retaliated against Plaintiffs for these activities by wrongfully terminating them. (Complaint 9-10, 17-18.)

Defendant filed a motion for summary judgment or, in the alternative, summary adjudication as to each cause of action (the “Motion”) on the grounds that there are no triable issues as to any material fact with respect to either cause of action alleged in the Complaint because: (1) Plaintiffs did not have an objectively reasonable belief that they were opposing unlawful conduct under the FEHA in their 2015 lawsuits; and (2) Plaintiffs were terminated for making untruthful statements.

REQUEST FOR JUDICIAL NOTICE

Defendant’s Request for Judicial Notice is GRANTED.

EVIDENTIARY OBJECTIONS:

The Court SUSTAINS Defendant’s objections to Plaintiffs’ evidence numbers: 11, 14, 19-31, 33-36, 39-67, 69-95, 97-110, 114-117, 120-122, 124-156, 159-162, 164-194, 196-205, 218, and 220.

The Court OVERRULES Defendant’s objections to Plaintiffs’ evidence numbers: 1-10, 12-13, 15-18, 32, 37-38, 68, 83, 96, 111-113, 118-119, 123, 157-158, 163, 195, 206-217, 219, and 221-222.

DISCUSSION

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) California Code of Civil Procedure (“CCP”) section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, a defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Findings of Fact

Plaintiffs are former LBPD officers. (UMF 1.) Vargas has alleged that he and his former partner and fellow LBPD officer Asif Khan (“Khan”) filed a sexual harassment lawsuit against the City in 1997 as LASC Case No. BC201855 (the “Khan Lawsuit”) on which Khan and Vargas allegedly prevailed after a jury trial. (RJN, Exh. 3, 8.) In fact, the Kahn Lawsuit was filed in 1998, not 1997, and it resulted in a jury verdict in favor of the City and not in favor of the plaintiffs. (RJN, Exh. 2, p. 195; UMF 30.)

In 2004, Vargas and Kahn filed a FEHA retaliation complaint against the City as LASC Case No. BC318885 (the “2004 Lawsuit”). (RJN, Exh. 3.) Although the complaint in the 2004 Lawsuit mentions the plaintiffs’ ethnicity and national origins, it does not allege retaliation based upon either ethnicity or national origin but is only based on their filing of the Kahn Lawsuit for sexual harassment. (Id.) The 2004 Lawsuit did result in a jury verdict in favor of plaintiffs Vargas and Kahn. (RJN, Exh. 4, 7.) Orduno was not a party to either the Kahn Lawsuit or the 2004 Lawsuit. (Id.)

On December 4, 2006, Vargas filed a complaint as LASC Case No. BC362791 (the “2006 Lawsuit”) for FEHA retaliation against the City, in which he alleges that he was retaliated against by the LBPD for the filing of the 2004 Lawsuit. (RJN, Exh. 4.) The 2006 Lawsuit was dismissed with prejudice on May 30, 2008. (RJN, Exh. 2, p. 195.)

On August 14, 2014, Plaintiffs Vargas and Orduno filed an action against the LBPD as LASC Case No. BC554804 (the “2014 Lawsuit”) for discrimination and retaliation on the basis of race in violation of FEHA, retaliation in violation of Labor Code 11025 and retaliation in violation of Labor Code 1102.5. (RJN, Exh. 6, 16.) In another lawsuit, filed by Plaintiffs against the LBPD on April 27, 2015 as LASC Case No. BC579999 (the “2015 Lawsuit”), Plaintiffs allege that the “section 1102.5 causes of action [in the 2014 Lawsuit] [were] successfully demurred to without leave to amend the complaint without the allegations about the events of 2015 going forward [relating to retaliation by denial of overtime hours].” (Id.) In fact, the 2014 Lawsuit was consolidated with the 2015 Lawsuit (the consolidated 2014 and 2015 Lawsuits are referred to collectively herein as the “2014-15 Lawsuit”).

In the 2014-15 Lawsuit, Vargas and Orduno alleged retaliation by the LBPD against them under FEHA: 1) as to Vargas, because he filed a “race/national origin lawsuit” against the LBPD “[i]n or about 2008” (the “Alleged 2008 Lawsuit”) which “concluded in a judgment in his favor”; and 2) as to Orduno, because of “his association with VARGAS as his partner.” (RJN, Exh. 6, 10, 11 and 14.)

On May 4, 2016, the Honorable Michael P. Linfield granted Defendant’s motion for summary judgment in the 2014-15 Lawsuit as to all of Plaintiffs’ causes of action (the “2016 MSJ Order”). (RJN, Exh. 2, p. 193, et seq.) In doing so, the 2016 MSJ Order made a number of specific findings, including that the Kahn Lawsuit had not resulted in a verdict in favor of its plaintiffs and that the Alleged 2008 Lawsuit was not filed. Judge Linfield also found that although the 2014-15 Lawsuit alleged that Plaintiffs had opposed allegedly unlawful conduct by complaining after Plaintiffs’ supervisor, Lieutenant Klein (“Klein”), made a statement calling Vargas a detriment to the department (the “Detriment Statement”), Vargas’s belief regarding the motivation behind the Detriment Statement was insufficient on its own to establish that it was unlawful under FEHA, in the absence of additional evidence, which was not presented, because the Detriment Statement was not made until seven years following the conclusion of Vargas’s last lawsuit against Defendant. (RJN, Exh. 2, p. 196; UMF 102.) The 2016 MSJ Order further found that although the filing of the FEHA complaints was protected activity, Plaintiffs’ complaints about the Detriment Statement did not rise to the level of protected activity, and even if they did, the LBPD did not take any adverse actions that were causally connected to this allegedly protected activity. (RJN, Exh. 2, p. 196.)

The 2016 MSJ Order also addressed the acts by the LBPD that Plaintiffs alleged were done in retaliation for Plaintiffs’ objecting to the Detriment Statement. Plaintiffs had alleged that an order by the LBPD that Plaintiffs each carry a digital recorder for a six month period, which Plaintiffs alleged is equivalent to branding a police officer as incompetent, was made in retaliation for their having objected to the Detriment Statement. (RJN, Exh. 2, p 197.) The Court found that the order was the result of numerous citizen complaints about Plaintiffs and that the decision to make the order was made several months before the Detriment Statement, and therefore was not made in retaliation therefor. (Id.) The Court further found that after Plaintiffs were informed that they were no longer required to carry the recorders because no additional citizen complaints had been received while they were ordered to wear them, they both requested that they be allowed to keep the recorders and they voluntarily used them intermittently thereafter. (RJN, Exh. 2, pp. 196-197.)

Plaintiffs alleged in the Second Amended Complaint in the 2014-15 Lawsuit that prior to complaining about the Detriment Statement, Vargas was selected for the Acting Sergeant role, but that after the Detriment Statement was made he was never again selected to be Acting Sergeant. (RJN, Exh. 2, p. 198, 26.) The Court found, however, that Vargas admitted in his deposition that he had never been Acting Sergeant while employed by the LBPD and had never requested that he be assigned to that position. (Id.)

The Court also found that Plaintiffs’ allegation in the 2014-15 Lawsuit as to their being separated as partners in retaliation for objecting to the Detriment Statement was contradicted by their own testimony in the case, and that in fact they admitted to having only been separated as partners for four working days, during which time they assisted each other on calls. (Id.)

In the course of the 2014-15 Lawsuit, Plaintiffs made a number of statements in verified responses to written interrogatories that were contradicted by their sworn testimony in depositions. For example, in their responses under penalty of perjury to Special Interrogatories, Sets One and Two (Declaration of Howard Russell (“Russell Decl.”), Exh. A and Declaration of Jeff Berkenkamp (“Berkenkamp Decl.”), Exhs. A and B), Plaintiffs in separate responses each declared under oath:

  1. “In or about 2008, Plaintiff Vargas previously filed a race/national origin lawsuit against the present Defendant, the City of Long Beach Police Department, and concluded with a judgment in his favor.” (Russell Decl., Exh. A, p. 11, lines 19-20 and Berkenkamp Decl., Exhs. A and B.) This was found by Judge Linfield to be an untrue statement.

  2. “Since wearing the tape-recorders, Plaintiffs have requested assistance while out in the field and no one has responded to the scene despite their request. Plaintiffs have been told by fellow officers that they cannot be trusted while they are wearing the tape recorders. Plaintiffs have been shunned by their fellow officers when walking into rooms, or when plaintiffs respond to calls-for-assistance by their fellow peers. Because of the tape-recorders, plaintiffs were not assisted on calls, putting their physical well-being at risk; this has created a dangerous working environment, one motivated by their superiors for having complained about Lt. Klein’s statements, and their national origin.” (Russell Decl., Exh. A, p. 12, ll. 4-11 and Berkenkamp Decl., Exhs. A and B.) The Court found these statements made under oath to be untrue.

  3. Prior to complaining about Lieut. Klein’s comments in February 2014, plaintiff was selected for the Acting Sergeant role on “a multitude of occasions,” thus demonstrating that he is qualified to fill that position. (Russell Decl., Exh. A., p. 4, ll. 23-24 and p. 14, ll. 6-7 and Berkenkamp Decl., Exhs. A and B.) The Court found these statements made under oath to be untrue.

  4. Since mid-February 2015, Plaintiffs have been subjected to further retaliation by denial of overtime hours. (Russell Decl., Exh. A, p. 14, ll. 20-22 and Berkenkamp Decl., Exhs. A and B.) The Court found these statements made under oath to be untrue. (RJN, Exh. 2.)

In the 2016 MSJ Order, the Court found that in their deposition testimony, made under oath, Plaintiffs stated:

  1. No announcement was made to the entire squad about Plaintiffs’ recorders and they could have hidden the recorders. Plaintiffs could not recall specific occasions where they asked for assistance and other officers were available but did not respond. Plaintiffs do not dispute that no officers specifically told Plaintiffs that they cannot be trusted or that officers would not assist them because of the recorders. Although both Plaintiffs were informed that they were no longer required to carry the recorders as of August 2013, both Plaintiffs requested that they be allowed to keep the recorders. Vargas testified that he asked to keep the recorder to wear sometimes. Orduno testified that he still uses the recorder at his discretion. (RJN, Exh. 2, p. 197.) There is no showing that Orduno ever made a complaint about his safety regarding the Detriment Statement. There is evidence that Vargas complained about the statement to Klein and Beckman, and expressed a concern that he would not receive backup when he called for assistance. However, there is no evidence as to a good faith basis for Vargas’s fear. Vargas’s speculative belief that he might not receive backup is not sufficient. (Id.)

  2. Vargas admitted in his deposition that he has never been Acting Sergeant while employed by the LBPD. Vargas testified that he never spoke with a senior employee about the process involved in becoming the Acting Sergeant and has never seen documents identifying the selection process. Vargas admits that he has never requested that he be assigned to the position of Acting Sergeant. Vargas admits that he has never taken steps to get promoted in the LBPD, and Orduno is not making a claim for being passed over for Acting Sergeant. (Id. at 198.)

  3. In 2014 and 2015, Orduno worked the 2nd most special event overtime hours of any Traffic Section officer. Orduno worked more special event overtime hours in 2015 than he did in 2014. Vargas did not work as much overtime, but only because he chose to take fewer shifts and because he was on leave and therefore unavailable. Vargas only worked 93 hours less special event overtime in 2015 than in 2014. Vargas was offered and refused special event overtime on 2/22/15 and 3/4/14. There was at least one occasion in May 2015 where Vargas had to cancel special event overtime because he was on light duty. Vargas admits he was offered and declined special event overtime and 2014 on 1 to 5 occasions. Vargas has no recollection whether he worked any special event overtime in 2015. Vargas has no estimate as to how much special event overtime he was denied. Nobody has ever told Vargas that he was denied overtime in retaliation for his claims. Orduno does not know how many hours of special event overtime he was allegedly denied. It is undisputed that Plaintiffs’ request to work an available extra grant overtime slot was not denied by their supervisor. It also appears to be undisputed that both Plaintiffs worked more grant overtime in 2015 than they did in 2013 or 2014. Vargas testified that from 2013 until October 2015, he was not denied any grant overtime. “The evidence shows that plaintiffs were provided grant overtime when they requested it.… Both plaintiffs worked more grant overtime in 2015 than in 2013 or 2014.” (Id. at 201-203; UMF 26, 31, 36, 42, 48, 82-83.)

Plaintiffs contend that they had a reasonable explanation for the discrepancies in their sworn statements that would have been revealed in a pre-charge interview. Their stated explanation is that they did not read their interrogatory responses before they signed the verifications that were attached to those responses, such that they believe they can now disavow those responses completely. (Plaintiffs’ Compendium of Evidence in Opposition to the Motion (“Plaintiffs’ Evidence”), Declaration of Vargas (“Vargas Decl.”), 42 and 44.)

In support of this position, Plaintiffs admit, again under oath:

At the request of my former attorney for LASC Case number BC 554804 (the 2014/2015 cases), Mr. Zambrano, I pre-signed Verification forms which did not indicate the name of the document reviewed, or the date and location of execution. I never inserted any information on the Verification forms at any time later and have no knowledge of who inserted information on them. I did not expect Mr. Zambrano to use my signed Verification forms in connection with any document(s) without first giving me the opportunity to review and approve the document(s). (Plaintiffs’ Evidence, Vargas Decl., 40; see also, Plaintiffs’ Evidence, Declaration of Orduno, 16 and 20.)

Initially, the issue of whether Plaintiffs are bound by their sworn discovery responses was decided by Judge Linfield in the 2016 MSJ Order. Moreover, it strains the credulity of the Court to ask it to believe that seasoned and experienced litigants such as Plaintiffs would be so na ve as to “pre-sign” verification forms under oath for discovery responses.

Regardless of the truth of this explanation, however, Plaintiffs’ sworn statements to this effect are in themselves admissions of perjury. The verification forms which they now swear under penalty of perjury that they signed before seeing the accompanying discovery responses or having the name of those documents inserted therein read:

“I have read the foregoing . I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true.

Executed on , at , California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

By signing each of these verification forms, Plaintiffs declared under penalty of perjury that they had read the documents to which the forms were attached. By their declaration in opposition to the MSJ, they are admitting this was untrue. By signing the verification forms, they were also declaring under penalty of perjury that the matters stated in documents that they now deny they had read were true of their own knowledge except as to those matters which are stated on information and belief, and as to those matters they believed them to be true. As Plaintiffs are now denying the truth of the matters stated in the attached sworn interrogatory answers, they are now admitting that the verification forms they signed were untrue and therefore perjurious.

Allowing a party to disavow their written responses to discovery by saying that they pre-signed verification forms would render all written discovery useless. In any event, the Court cannot ignore the perjury involved in taking such a position. The Court also notes that the sworn statements which they now disavow were also contained in the allegations which they made in detail in the Second Amended Complaint in the 2014-15 Lawsuit. (RJN, Exh. 5.) Judge Linfield properly found that Plaintiffs had lied under oath in response to written discovery in the course of the 2014-15 Lawsuit.

Following entry of the 2016 MSJ Order and the conclusion of the 2014-15 Lawsuit, Defendant initiated an internal investigation (“IA-0017”) and concluded that Plaintiffs made untruthful statements under oath in the course of the 2014-15 Litigation. (UMF 2 and Berkenkamp Decl., Exhs. A and B.) As a result of the investigative findings in IA-0017, Plaintiffs were terminated on May 23, 2017.[1] (UMF 2.)

First Cause of Action: Unlawful Retaliation Under the FEHA

In order to establish a prima facie case of retaliation under 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. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Id.) 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. (Id.)

  1. Protected Activity

    FEHA makes it unlawful for an employer to retaliate against an employee who has opposed any discriminatory action (the “opposition” clause) or who has filed a complaint, testified, or assisted in a FEHA proceeding (the “participation” clause). (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489 (“George”) (emphasis in original).) A retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines that the conduct was not actually prohibited by FEHA. (Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at 1043.) The requirement that the employee reasonably believe the conduct was discriminatory does not apply to the participation clause of the statute. (George, supra, 179 Cal.App.4th at 1490.) This is because “[i]t has long been the law that whether an employee's formal or informal complaint is well founded is immaterial to a FEHA retaliation claim” and the filing of a complaint “is protected [activity] under the participation clause of the statute.” (Id.)

    Defendant argues that Plaintiffs did not engage in protected conduct when they brought the 2014-15 Lawsuit because Vargas’s underlying 2004 and 2006 Lawsuits against Defendant were too remote in time to form a reasonable basis for believing that the Detriment Statement constituted a violation of the FEHA. (Motion 10:13-17.) Defendant contends that substantive law at the time of the 2014-15 Lawsuit dictated that Plaintiffs had no viable causes of action based on alleged retaliatory conduct stemming from Vargas’s 2004 and 2006 lawsuits.

    In their opposition to the instant Motion (the “Opposition”), Plaintiffs argue that filing a FEHA lawsuit constitutes a protected act under the FEHA regardless of whether there was reasonable belief that the allegations therein constitute a violation of the law. (Opposition 13:10-15:1.) Plaintiffs argue that the holding of George is directly applicable to and dispositive of whether their 2014-15 Litigation constitutes protected activity under FEHA.

    The Court finds that while Plaintiffs engaged in potentially protected activity under the participation clause by filing and participating as witnesses on one another’s behalf in the 2014-15 Lawsuit, the facts here raise a different issue than the one in George. Here, Plaintiffs’ have been found to have lied under oath during the 2014-15 Lawsuit -- an activity that does not rise to the level of protected activity. In George and Yanowitz, the issue before the Court was whether the underlying complaint was “well-founded” i.e., whether the claimant had a good-faith belief that the underlying alleged facts constituted discriminatory conduct, and not whether the claimant had a good-faith belief in the truth of the underlying facts or whether the claimant committed perjury.

    The Court finds this case to be more analogous to the decision of the 2nd District Court of Appeal in Joaquin v. City of Los Angeles (2012) 202 Cal. App. 4th 1207. In Joaquin, the plaintiff, a Los Angeles Police Department (“LAPD”) officer, had complained of sexual harassment by an LAPD sergeant. This complaint led to an internal affairs investigation which found plaintiff’s complaint to be unfounded and found that he had made a false report, resulting in his termination. (Id. at 1209-1210.) Plaintiff then filed a petition for writ of mandate which was granted and plaintiff was ordered reinstated. (Id.)

    Following his reinstatement, the plaintiff was transferred to a less desirable assignment, which he testified was a “black mark” on his record. He was not promoted to sergeant and testified that he believed the LAPD had continued to retaliate against him. (Id., at 480.) Thereafter, the plaintiff filed a lawsuit against the City of Los Angeles, alleging that his termination had been in retaliation for filing a sexual harassment complaint in violation of FEHA. (Id.) A jury agreed and awarded the plaintiff more than $2 million in lost wages and emotional distress. (Id.) The City of Los Angeles appealed, contending, among other things, that the jury’s verdict was not supported by substantial evidence. (Id.)

    The Court of Appeal reversed, holding “Joaquin is correct that there was a direct causal connection between his report of sexual harassment and the Board of Right’s recommendation to terminate him. However, the Board of Rights did not recommend termination merely because Joaquin had reported sexual harassment, but rather because it concluded that he had fabricated the accounts of sexual harassment. In other words, the Board of Rights recommended termination not because Joaquin had reported sexual harassment, but because it concluded that he had done so falsely.” (Id.) (Emphasis in text.)

    The Court in Joaquin addressed a situation even more complex than the one here, where Judge Linfield found that Plaintiffs had lied under oath. In Joaquin, the record reflected that the Superior Court, in ruling on the writ petition, had found that the Board of Rights’ findings that the plaintiff had been untruthful were “simply not supported by the weight of the evidence… what is at issue is whether the events occurred as relayed by Joaquin or whether he made a false and spurious accusation. The Department did not carry its burden of proving before the Board of Rights that he did.” (Id. at 479.)

    In other words, the Court in Joaquin concluded that the allegation of lying was ultimately not proven. Nevertheless, the accusation of untruthfulness was sufficient to justify disciplinary proceedings and termination for the purpose of defending against a FEHA claim.

    As shown in the discussion of the facts herein, Defendant had overwhelming evidence before it began IA-0017, as confirmed by Judge Linfield’s decision, that Plaintiffs – police officers of longstanding employment – gave multiple instances of untruthful testimony under oath. Plaintiffs’ only attempt at justifying this behavior is based on their disingenuous assertion that they were not responsible for the untruthful statements because they had sworn untruthfully that they had read and reviewed multiple and substantial discovery responses before signing blank verification forms. Such behavior justifies on its own the termination after Judge Linfield’s 2016 MSJ Order and its findings.

    As the Court in Joaquin, quoted from Hatmaker v. Memorial Medical Center (7th Cir. 2010) 619 F.3d 741, 745-746:

    [W]hether to fire an employee for lying to the employer in the course of the business’s conduct of an important internal investigation is basically a business decision; this decision, as with most business decisions, is not for the courts to second-guess as a kind of super-personnel department… The EEOC argues that Defendant, to avoid liability under Title VII, must prove that Warren, in fact, lied. But we cannot agree that an employer must be forced to prove -- presumably in a court of law-- more than its good-faith belief that a false statement was knowingly made.… When an employer is told of improper conduct at its workplace, the employer can lawfully ask: is the accusation true? When the resulting employer’s investigation (not tied to the government) produces contradictory accounts of significant historical events, the employer can lawfully make a choice between the conflicting versions -- that is, to accept one as true and to reject one as fictitious-- at least, as long as the choice is an honest choice. And at least when the circumstances give the employer good reason to believe that the fictitious version was the result of a knowingly false statement by one of its employees, the law will not protect the employee’s job. False statements impair the employer’s ability to make sound judgments that may be important to the employer’ is legal, ethical and economic well-being. So, an employer is entitled to expect and to require truthfulness and accuracy from its employees in an internal investigation that is exploring possibly improper conduct in the business’s own workplace… And, in carrying out its business and in making business decisions (including personnel decisions), the employer can lawfully act to the level of certainty that might not be enough in a court of law. In the workaday world, not every personnel decision involving a false statement (or a cover-up) has to be treated as something like a trial for perjury. Therefore, an employer, in these situations, is entitled to rely on its good-faith belief about falsity, concealment, and so forth. [Citations.] Warren could properly be discharged based on Defendant’s good-faith belief that she lied in an internal investigation. In other words, Defendant offered a legitimate nondiscriminatory reason for Warren’s termination: Defendant concluded that she had lied in an internal investigation.” Joaquin, supra, at 1224-1225.

    The Court in Joaquin therefore concluded: “the ultimate question for the fact finder is whether the employer’s stated reason for discipline (i.e., that the employee was untruthful during an investigation) was pretextual or whether there is other evidence that, ‘as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.’ (Mamou [v. Trendwest Resorts, Inc. (2008)] 165 Cal.App.4th [686] at 715.)” (Joaquin at 486-87.) In this case, the issue is whether Defendant’s stated reason for discipline – that Plaintiffs lied under oath in the 2014-15 Lawsuit – was pretextual, not merely whether the 2014-2015 Lawsuit terminated close in time to their termination. The evidence supports a finding that Plaintiffs repeatedly lied under oath in the course of the 2014-15 Lawsuit – a circumstance that is established in Joaquin as a valid reason for termination.

    As Commander Jeff Berkenkamp (“Commander Berkenkamp”) stated in his Letter of Transmittal in IA-0017:

    Honesty and truthfulness are essential principles of law enforcement. There are continuously reinforced from the time a prospective candidate applies for a job as a police recruit, in the police academy and throughout an officer’s career. Honesty and truthfulness are clearly defined and clearly expected policies published in the Department Manual. Most importantly they are paramount to the public’s trust. Due to Brady disclosures an officer who has been previously proven to be untruthful in sworn testimony is a poison pill for any future case in which he/she provides testimony his/her integrity is assumed to be questionable. Officers who are proven to be untruthful in sworn testimony are completely ineffectual. (UMF 63.)

    Plaintiffs both agree that honesty is of crucial importance for law enforcement and that dishonesty is incompatible with the duties of a police officer. (UMF 64.) It is indisputable that Plaintiffs lied in sworn testimony in the 2014-15 Lawsuit and that even their excuse for giving sworn untrue statements in written discovery is an admission of their having lied under oath by stating that they had reviewed the documents verified before signing the verifications. Lying under oath is not a protected activity.

    LBPD Chief Robert Luna (“Chief Luna”) confirmed that he did not retaliate against Plaintiffs for litigation they had filed against Defendant in reaching his recommendation to dismiss Plaintiffs for untruthfulness, and that his decision was based solely upon the sustained findings that they were untruthful. (UMF 136.) Commander Berkenkamp confirmed that his decision to recommend Plaintiffs’ dismissal was also not in retaliation for their litigation against Defendant and was based solely upon Plaintiffs’ untruthfulness. Defendant has therefore produced substantial evidence of a legitimate reasons for Plaintiffs’ termination which has not been effectively refuted by Plaintiffs.

    Plaintiffs have not demonstrated “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s preferred legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer did not act for the […asserted] non-discriminatory reasons.’ [Citations.]” (Morgan v. Regents of University of Cal. (2000), 88 Cal.App.4th 52, 48, citing Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807.) Plaintiffs have not established that Defendant has not terminated other LABP officers when it has been established that they have repeatedly lied under oath. The fact is that their claims have been found to have been based upon numerous factual statements made under penalty of perjury that they admit have now been proven to be untrue, Plaintiffs cannot assert that Defendant had retaliatory intent in their termination.

    As the Court held in Joaquin, “Were we to adopt a different standard, an employee could immunize his unreasonable and malicious internal complaints simply by filing a discrimination complaint with a government agency. Similarly, an employee could assure himself unlimited tenure by filing continuous complaints with a government agency if he fears that his employer will discover his duplicitous behavior at the workplace… If we were to adopt [plaintiff’s] arguments, it would encourage the abuse of [the antidiscrimination laws] in the proceedings that [they] established.” (Joaquin, supra, at 1225-1226, citing Hatmaker v. Memorial Medical Center (7th Cir. 2010) 619 F.3d 741, 745-746.)

    Having found that Plaintiffs’ actions in lying under oath is not a protected activity, this analysis could end here; however, the following will assess the other elements of this claim.

  2. Adverse Employment Action

The parties do not dispute that Plaintiffs’ respective terminations constitute an adverse employment action.

  1. Causal Connection

The parties disagree whether there is a causal connection between Plaintiffs’ allegedly protected activity under the FEHA participation clause and their subsequent terminations. To show a causal link, a party must substantiate his allegations with sufficient probative evidence that would permit finding in his favor based on more than mere speculation, conjecture, or fantasy. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1537.) Both direct and circumstantial evidence can be used to show an employer’s intent to retaliate. (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153.) Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive. (Id.) Circumstantial evidence typically relates to such factors as the timing of events. (Id.) Substantial evidence of retaliation must be shown. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 479.)

Pretext may also be inferred from the timing of the company’s termination decision and by the identity of the person making the decision. (Id.) Pretext may be evidenced when such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the proffered non-discriminatory reasons. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.)

Once an employer presents a nonretaliatory reason for the discharge, the central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715.) The employer’s mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor. (Id.) Thus, citing a legitimate reason for the challenged action will entitle the employer to summary judgment only when the employee’s showing, while sufficient to invoke the presumption, is too weak to sustain a reasoned inference in the employee’s favor. (Id.)

The Court in Joaquin, supra, found that an allegation of lying in connection with a protected claim can support a finding that employment termination was not motivated by retaliatory animus, a necessary element of the plaintiff’s claim, and for reversal of the judgment in his favor. (Id.) As the Court held in Joaquin: “retaliatory intent is an essential element of a cause of action for unlawful termination under FEHA. (202 Cal.App.4th at 1230.)

Here, the Court finds that, as in Joaquin, Defendant has established a nonretaliatory reason for Plaintiffs’ discharge and Plaintiffs have failed to present substantial evidence that their termination was motivated by retaliatory animus.

Defendant presents evidence that Plaintiffs were terminated after and as a result of the findings in the investigation IA-0017 concerning Plaintiffs’ inconsistent testimony in the 2014-2015 Lawsuit. (UMF 2-3.) Defendant presents evidence that Vargas declared twice under oath in response to written interrogatories that he had been previously selected for the acting sergeant role. (UMF 23.) When he was deposed – again under oath -- Vargas contradicted that sworn response, stating that he had never been acting sergeant while employed by Defendant and had never spoken to anyone senior to him about pursuing the position and had never requested being assigned the position. (UMF 24.)

Defendant also provides evidence that Vargas twice swore in response to written interrogatories that he had filed a race/national origin lawsuit against Defendant that resulted in a favorable judgment in 2008. (UMF 27-28.) Vargas admits that this lawsuit was never filed. (UMF 30.)

Defendant additionally presents evidence that Vargas declared under oath that he was denied access to grant overtime in response to written interrogatories. (UMF 33.) In depositions, he later admitted that he was not actually denied any grant overtime between 2013 and October 2015. (UMF 34.) The 2016 MSJ Order specifically found that Plaintiffs were provided grant overtime when it was requested. (UMF 36-37.)

Defendant presents evidence that Orduno made inconsistent statements under oath regarding whether he complained about the Detriment Statement made by Lieutenant Klein. (See UMF 39-42.) Defendant additionally presents evidence of inconsistent statements made under oath by Orduno in the 2014-15 Lawsuit regarding his ability to issue citations in a five-hour time period and that he received noticeably less assistance with traffic stops when he began to be required to wear a tape recorder.

Commander Berkenkamp recommended Plaintiffs’ termination based on the finding that Plaintiffs each made untruthful statements in interrogatory responses made under penalty of perjury that were subsequently contradicted by their sworn deposition testimony. (UMF 54.) On March 29, 2017 during the final review of the investigation, Commander Berkenkamp reviewed the information in the letter of transmittal. After meeting with Plaintiffs, Chief Luna, Deputy Chief Hendricks, Commander Steven Lauricella (“Commander Lauricella”) and Commander Berkenkamp affirmed the recommendation of dismissal. (UMF 60.)

Defendant presents evidence that honesty and truthfulness are critical values in law enforcement and to LBPD. Since being appointed as chief of LBPD on or about November 22, 2014, Chief Luna’s uniform practice has been to recommend an employee be dismissed following an investigation finding untruthfulness. (UMF 71.)

In their Opposition, Plaintiffs dispute that there is a proper justification for their termination. Plaintiffs present evidence that IA-0017 was initiated by Deputy City Attorney Haleh Jenkins, the same attorney who defended Defendant in the 2014-15 Lawsuit. (Plaintiff’s Separate Statement of Material Facts (“PMF”) 26.) IA-0017 was opened four days after the Court granted summary judgment in Defendant’s favor in the 2014-15 Lawsuit. (PMF 27-28.) Plaintiffs further argue that not only is there a clear causal link between the 2014-15 Lawsuit and their termination, there is evidence that the termination was motivated by retaliatory animus related to their filing of that action. (Opposition 35:10-14.)

Plaintiffs present evidence that they were never interviewed during the course of the investigation in IA-0017, contrary to Defendant’s standard practice and procedure and they argue that the failure to interview Plaintiffs for exculpatory information is evidence of pretext. (Opposition 35:20:26.) Defendant submits form letters given to accused officers prior to being interviewed during an investigation. (PMF 160.) Commander Berkenkamp testified regarding the gravity of allegations of untruthfulness and the corresponding need to complete an accurate investigation. (PMF 162-63.) Commander Lauricella testified that it is rare for an accused not to be interviewed. (PMF 159.) Chief Luna additionally has stated that inconsistencies are not always tantamount to dishonesty. (PMF 168.) Sergeant Marchese stated that he was not curious about the discrepancies between the written and oral discovery responses. (PMF 171.)

The Court finds that Plaintiffs have failed to present sufficient evidence to show that there exists a triable issue of material fact as to whether the adverse employment action is causally related to the filing of the 2014-15 Lawsuit and whether Defendant had a retaliatory motive. The involvement of Deputy City Attorney Haleh Jenkins does not support a showing of such a motive when DCA Jenkins had firsthand knowledge of the discrepancies in Plaintiffs’ testimony under oath in the 2014-15 Lawsuit. The sworn interrogatory responses and deposition transcripts were part of the information considered in connection with IA-0017 and were relied upon by Defendant in making its decision to terminate Plaintiffs. Because those sworn documents spoke for themselves, the decision not to interview Plaintiffs before bringing the charges was not evidence of pretext.

Because Defendant has established that there is no material issue of material fact as to whether Plaintiffs can prevail on the First Cause of Action of the Complaint, Defendant is therefore entitled to Summary Judgment on their First Cause of Action.

Second Cause of Action: Retaliation Under Labor Code Section 1102.5

Under Labor Code section 1102.5, subdivision (b) an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)

The analysis for alleged retaliation in violation of Labor Code section 1102.5 involves a substantially similar analysis to whistleblower claims arising under FEHA. Defendant argues that Plaintiffs did not engage in protected conduct under the Labor Code because at the time they filed their cases that were ultimately consolidated in the 2014-15 Lawsuit, substantive law provided that Plaintiffs did not have a reasonable belief that they were opposing prohibited conduct or that they were subjected to an adverse employment action under FEHA, which forms the basis for their current claim.[2] Defendant further argues that Plaintiffs are barred from attempting to relitigate or clarify the evidence presented in the 2014-15 Lawsuit under the doctrine of res judicata.

Reasonable Belief

To be protected by the “opposition” clause of FEHA, an employee must have opposed an employment practice made unlawful by the statute. (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 381.) An employee’s conduct may constitute protected activity not only when the employee opposes conduct that is ultimately determined to be unlawfully discriminatory under FEHA but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate FEHA. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.) A mistake of fact or law may establish an employee’s good faith but mistaken belief that he is opposing conduct prohibited by FEHA. (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 209.) In such circumstances, the question is the reasonableness of the employee’s belief that he was opposing a practice prohibited by FEHA. (See Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477.)

In Dinslage v. City and County of San Francisco, (2016) 5 Cal.App.5th 36, the court discussed federal courts’ analysis of the reasonableness of an employee’s belief and described the reasonableness of an employee’s belief as having both a subjective and objective component. (Id. at 381.) The objective reasonableness of an employee’s belief is evaluated in light of the facts and record presented and must be measured against existing substantive law. (Id. at 382 (citations omitted).)

A retaliatory motive may be proved by showing that the plaintiff engaged in protected activities, that his employer was aware of the protected activities and that the adverse action followed within a relatively short time thereafter. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 69.) The causal link may be established by an inference derived from circumstantial evidence, such as the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision. (Id.) As a general rule, close temporal proximity is sufficient to establish a prima facie causal connection between protected activity and an adverse employment action. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 334-35.)

Defendant argues that there was no good faith legal argument at the time Plaintiffs filed the 2014-15 Lawsuit, that the Detriment Statement could constitute discriminatory conduct under the FEHA given the multi-year gap between Vargas’s last lawsuit and the statement. Judge Linfield so found in the 2016 MSJ Order.

Plaintiffs argue that the issue of reasonable belief is a fact-specific inquiry. They further argue that Judge Linfield’s findings when ruling on the 2016 MSJ Order are not binding because Judge Linfield considered the ultimate merits of Plaintiffs’ asserted claims, not whether they reasonably believed that the 2014-15 Lawsuit disclosed violations of the law. (Opposition 20:17-25.) Plaintiffs further assert that a determination of whether they reasonably and in good faith believed they were opposing legal violations in the 2014-15 Lawsuit is a credibility question not properly decided on a motion for summary judgment. (Opposition 23:27-24:3.)

Plaintiffs’ argument does not address the points raised in the Motion regarding both the subjective and objective elements to a plaintiff’s reasonable belief that an employer has violated the FEHA. Further, Plaintiffs have not presented admissible evidence to support their contention that their belief that they were opposing the violations alleged in the 2014-15 Lawsuit was objectively reasonable in light of the governing law. Plaintiffs’ subjective belief on its own is insufficient to create an issue of material fact. In fact, applying applicable law when ruling on the 2016 MSJ, Judge Linfield found that Plaintiffs’ subjective beliefs about the motivation for Lieutenant Klein’s statement about Vargas, without further substantiating evidence, were legally insufficient to support a finding that Lieutenant Klein had violated FEHA. (See RJN, Exhibit A, p. 4.) Plaintiffs’ evidence concerning additional alleged adverse employment actions is irrelevant due to their failure to present evidence regarding the reasonableness of their belief that the Detriment Statement constituted a FEHA violation. That Lieutenant Klein knew of Vargas’s earlier litigation against Defendant does not automatically make it reasonable for Plaintiffs to have assumed his alleged statement was unlawful under the FEHA, particularly because of the passage of time from Vargas’s earlier cases.

The Court therefore GRANTS the Motion with respect to the second cause of action and grants Summary Judgment as to the Complaint.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 23rd day of March, 2022

Hon. Holly J. Fujie

Judge of the Superior Court


[1] On March 28, 2017 --after the issuance of the 2016 MSJ Order and before his termination by the LBPD – Vargas filed another lawsuit against Defendant as LASC Case No. BC655520 (the “2017 Lawsuit”). (RJN, Exh. 7.) In the 2017 Lawsuit, Vargas alleged a claim for FEHA retaliation based on Vargas’s having filed a lawsuit on or about July 22, 2004 “based on an earlier complaint for sexual harassment.” (RJN, Exh. 7, 7.) Vargas alleges in the 2017 Lawsuit complaint that this prior lawsuit went to trial and resulted in a jury verdict for Vargas. (Id.) On its own motion, the Court takes judicial notice of the fact that the 2017 Lawsuit was dismissed without prejudice by plaintiff Vargas on January 11, 2018 after a demurrer was sustained to the complaint with leave to amend, and after the filing of the instant lawsuit.

[2] Labor Code section 1102.5, unlike FEHA, does not contain a “participation” clause.



Case Number: ****5610    Hearing Date: March 10, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALBERTO VARGAS, et al.,

Plaintiffs,

vs.

CITY OF LONG BEACH, et al.,

Defendants.

CASE NO.: ****5610

[TENTATIVE] ORDER RE: MOTIONS IN LIMINE

Date: March 10, 2021

Time: 9:30 a.m.

Dept. 56

The Court has considered the moving, opposition and reply papers.

BACKGROUND

This is an action in which Plaintiffs allege they were terminated as Long Beach Police Department officers because they filed lawsuits and engaged in protected activities as witnesses for one another against Defendant. Plaintiffs filed a complaint against Defendant alleging causes of action for: (1) violations of the California Fair Employment and Housing Act (Retaliation) and (2) whistleblower retaliation pursuant to California Labor Code, Section 1102.5.

PLAINTIFFS’ MOTIONS IN LIMINE

Motion No. 1: Grant

Motion No. 2: Grant

Motion No. 3: Grant

Motion No. 4: Grant, conditioned upon the Court’s review prior to trial of the proposed redacted version of the order which Defendant proposes to introduce into evidence.

Motion No. 5: Grant, conditioned upon Plaintiffs’ being allowed to depose Mr. Zengler prior to trial.

DEFENDANT’S MOTIONS IN LIMINE

Motion Nos. 1 and 2 – Previously ruled upon; Plaintiff filed writ petitions which were denied

Motion No. 3: Grant

Motion No. 4: Grant

Motion No. 5: Deny

Motion No. 6: Grant

Motion No. 7: Grant

Each Moving Party is ordered to give notice of the rulings on their respective Motions.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 10th day of March, 2021

Hon. Holly J. Fujie

Judge of the Superior Court



Case Number: ****5610    Hearing Date: February 03, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALBERTO VARGAS, et al.,

Plaintiffs,

vs.

CITY OF LONG BEACH, et al.,

Defendants.

CASE NO.: ****5610

[TENTATIVE] ORDER RE: MOTIONS IN LIMINE

Date: February 3, 2021

Time: 9:30 a.m.

Dept. 56

The Court has considered the moving, opposition and reply papers.

BACKGROUND

This is an action in which Plaintiffs allege they were terminated as Long Beach Police Department officers because they filed lawsuits and engaged in protected activities as witnesses for one another against Defendant. Plaintiffs filed a complaint against Defendant alleging causes of action for: (1) violations of the California Fair Employment and Housing Act (Retaliation) and (2) whistleblower retaliation pursuant to California Labor Code, Section 1102.5.

PLAINTIFFS’ MOTIONS IN LIMINE

Motion No. 1: Grant

Motion No. 2: Grant

Motion No. 3: Grant

Motion No. 4: Grant, conditioned upon the Court’s review prior to trial of the proposed redacted version of the order which Defendant proposes to introduce into evidence.

Motion No. 5: Grant, conditioned upon Plaintiffs’ being allowed to depose Mr. Zengler prior to trial.

DEFENDANT’S MOTIONS IN LIMINE

Motion Nos. 1 and 2 – Previously ruled upon; Plaintiff filed writ petitions which were denied

Motion No. 3: Grant

Motion No. 4: Grant

Motion No. 5: Deny

Motion No. 6: Grant

Motion No. 7: Grant

Each Moving Party is ordered to give notice of the rulings on their respective Motions.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 3rd day of February, 2021

Hon. Holly J. Fujie

Judge of the Superior Court



Case Number: ****5610    Hearing Date: January 13, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALBERTO VARGAS, et al.,

Plaintiffs,

vs.

CITY OF LONG BEACH, et al.,

Defendants.

CASE NO.: ****5610

[TENTATIVE] ORDER RE: MOTIONS IN LIMINE

Date: January 13, 2021

Time: 9:30 a.m.

Dept. 56

The Court has considered the moving, opposition and reply papers.

BACKGROUND

This is an action in which Plaintiffs allege they were terminated as Long Beach Police Department (“LBPD”) officers on May 23, 2017 because they filed lawsuits and engaged in protected activities as witnesses for one another against Defendant. Plaintiffs filed a complaint against Defendant alleging causes of action for: (1) violations of the California Fair Employment and Housing Act (Retaliation) and (2) whistleblower retaliation pursuant to California Labor Code, Section 1102.5.

PLAINTIFFS’ MOTIONS IN LIMINE

Motion No. 1: Grant

Motion No. 2: Grant

Motion No. 3: Grant

Motion No. 4: Grant, conditioned upon the Court’s review prior to trial of the proposed redacted version of the order which Defendant proposes to introduce into evidence.

Motion No. 5: Grant, conditioned upon Plaintiffs’ being allowed to depose Mr. Zengler prior to trial.

DEFENDANT’S MOTIONS IN LIMINE

Motion Nos. 1 and 2 – Previously ruled upon; Plaintiff filed writ petitions which were denied

Motion No. 3: Grant

Motion No. 4: Grant

Motion No. 5: Deny

Motion No. 6: Grant

Motion No. 7: Grant

Each Moving Party is ordered to give notice of the rulings on their respective Motions.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 13th day of January, 2021

Hon. Holly J. Fujie

Judge of the Superior Court



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