This case was last updated from Los Angeles County Superior Courts on 11/28/2022 at 11:32:34 (UTC).

DENISE BERTONE VS COUNTY OF LOS ANGELES

Case Summary

On 05/10/2017 DENISE BERTONE filed a Labor - Other Labor lawsuit against COUNTY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES R. DUNN. The case status is Disposed - Dismissed.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0736

  • Filing Date:

    05/10/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JAMES R. DUNN

 

Party Details

Plaintiff

BERTONE DENISE

Defendant

COUNTY OF LOS ANGELES

Not Classified By Court

REGENTS OF THE UNIVERSITY OF CALIFORNIA DBA U.C.L.A. RONALD REGAN MEDICAL CENTER DBA U.C.L.A. DAVID GEFFEN SCHOOL OF MEDICINE

Attorney/Law Firm Details

Plaintiff Attorneys

AL FAIZ LEILA K.

SMITH GREGORY W.

WELLS DIANA WANG

Defendant Attorneys

PETERSON GEORGE E

HALLORAN ALEXA LEIGH

MEGRABYAN ARMINEH

EKIMYAN H. JOHN

Not Classified By Court Attorney

KISESKEY KELLY L.

 

Court Documents

Declaration - PLAINTIFF DENISE BERTONES COMPENDIUM OF EVIDENCE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

2/26/2020: Declaration - PLAINTIFF DENISE BERTONES COMPENDIUM OF EVIDENCE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE FOR A FIFTH TIME

7/15/2021: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE FOR A FIFTH TIME

DEFENDANT COUNTY OF LOS ANGELES' ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES

8/7/2017: DEFENDANT COUNTY OF LOS ANGELES' ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGES

Order - RULING RE: DEFENDANT COUNTY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT

8/11/2020: Order - RULING RE: DEFENDANT COUNTY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT

Reply - REPLY DEFENDANT COUNTY OF LOS ANGELES REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

3/6/2020: Reply - REPLY DEFENDANT COUNTY OF LOS ANGELES REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES

Ex Parte Application - EX PARTE APPLICATION DEC COLA EX PARTE APPLICATION TO CONTINUE TRIAL

7/14/2021: Ex Parte Application - EX PARTE APPLICATION DEC COLA EX PARTE APPLICATION TO CONTINUE TRIAL

Motion for Summary Judgment

1/7/2020: Motion for Summary Judgment

Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO DEFENDANT'S EVIDENCE IN SUPPORT OF MSJ

2/26/2020: Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO DEFENDANT'S EVIDENCE IN SUPPORT OF MSJ

COMPLAINT FOR DAMAGES: 1. WHISTLEBLOWER RETALIATION (LABOR CODE 1102.5)

5/10/2017: COMPLAINT FOR DAMAGES: 1. WHISTLEBLOWER RETALIATION (LABOR CODE 1102.5)

Declaration - DECLARATION DECLARATION OF CHRISTINE MARDIKIAN

10/5/2021: Declaration - DECLARATION DECLARATION OF CHRISTINE MARDIKIAN

Ex Parte Application - EX PARTE APPLICATION DEF COLA EX PARTE APPLICATION TO SPECIALLY SET THE HEARING DATE OF DEF MJOP

10/5/2021: Ex Parte Application - EX PARTE APPLICATION DEF COLA EX PARTE APPLICATION TO SPECIALLY SET THE HEARING DATE OF DEF MJOP

Order - RULING RE MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION

10/6/2021: Order - RULING RE MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES; HEAR...)

10/6/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES; HEAR...)

Minute Order - MINUTE ORDER (COURT ORDER RE DISCOVERY RESPONSES)

10/7/2021: Minute Order - MINUTE ORDER (COURT ORDER RE DISCOVERY RESPONSES)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE DISCOVERY RESPONSES) OF 10/07/2021

10/7/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE DISCOVERY RESPONSES) OF 10/07/2021

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [MINUTE ORDER (COURT ORDER RE DISCOVERY RESPONSES)]

10/20/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [MINUTE ORDER (COURT ORDER RE DISCOVERY RESPONSES)]

Request for Dismissal - REQUEST FOR DISMISSAL - NOT ENTERED

10/25/2021: Request for Dismissal - REQUEST FOR DISMISSAL - NOT ENTERED

Motion in Limine - MOTION IN LIMINE #8 FOR AN ORDER EXCLUDING TESTIMONY, EVIDENCE, OR ARGUMENT RELATED TO PLAINTIFFS CONCLUSIONS ON STANDARDS OF CARE AND ON CAUSES OF DEATH; MEMORANDUM OF POINTS AND A

11/1/2021: Motion in Limine - MOTION IN LIMINE #8 FOR AN ORDER EXCLUDING TESTIMONY, EVIDENCE, OR ARGUMENT RELATED TO PLAINTIFFS CONCLUSIONS ON STANDARDS OF CARE AND ON CAUSES OF DEATH; MEMORANDUM OF POINTS AND A

238 More Documents Available

 

Docket Entries

  • 03/18/2022
  • Docketat 08:30 AM in Department 78; Hearing on Motion to Bifurcate - Not Held - Vacated by Court

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  • 01/13/2022
  • Docketat 08:30 AM in Department 78; Hearing on Motion for Judgment on the Pleadings - Not Held - Advanced and Continued - by Court

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  • 01/13/2022
  • Docketat 08:30 AM in Department 78; Hearing on Motion for Judgment on the Pleadings (_ CRS#020280592575) - Not Held - Rescheduled by Court

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  • 11/30/2021
  • Docketat 09:30 AM in Department 78; Jury Trial (10-day estimate) - Not Held - Vacated by Court

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  • 11/30/2021
  • Docketat 09:30 AM in Department 78; Jury Trial (, 10 day estimate,) - Not Held - Vacated by Court

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  • 11/16/2021
  • Docketat 08:30 AM in Department 78; Final Status Conference - Not Held - Vacated by Court

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  • 11/16/2021
  • Docketat 08:30 AM in Department 78; Final Status Conference - Not Held - Vacated by Court

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  • 11/08/2021
  • Docketat 08:30 AM in Department 78; Hearing on Motion for Judgment on the Pleadings (_ CRS#020280592575) - Not Held - Taken Off Calendar by Court

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  • 11/08/2021
  • Docketat 08:30 AM in Department 78; Hearing on Motion for Judgment on the Pleadings - Not Held - Vacated by Court

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  • 11/08/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by County of Los Angeles (Defendant)

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373 More Docket Entries
  • 06/20/2017
  • DocketPROOF OF SERVICE FOR DEFENDANT COUNTY OF LOS ANGELES

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  • 05/18/2017
  • Docketat 1:30 PM in Department 24; Unknown Event Type - Held

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  • 05/18/2017
  • DocketMinute Order

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  • 05/18/2017
  • DocketMinute order entered: 2017-05-18 00:00:00; Filed by Clerk

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  • 05/11/2017
  • DocketDECLARATION UNDER C.C.P. SECTION 170.6 (PEREMPTORY CHALLENGE)

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  • 05/11/2017
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Plaintiff

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  • 05/10/2017
  • DocketCOMPLAINT FOR DAMAGES: 1. WHISTLEBLOWER RETALIATION (LABOR CODE 1102.5)

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  • 05/10/2017
  • DocketComplaint; Filed by Denise Bertone (Plaintiff)

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  • 05/10/2017
  • DocketComplaint; Filed by Denise Bertone (Plaintiff)

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  • 05/10/2017
  • DocketSUMMONS

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Tentative Rulings

b"

Case Number: ****0736 Hearing Date: November 8, 2021 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DENISE BERTONE;

Plaintiff,

vs.

COUNTY OF LOS ANGELES., et al.;

Defendants.

Case No.:

****0736;

Consolidated with 18STCV04681

Hearing Date:

November 8, 2021

[TENTATIVE] RULING RE:

DEFENDANT COUNTY OF LOS ANGELES’ MOTION FOR JUDGMENT ON THE PLEADINGS ON THE Complaint in Case No. ****0736

Defendant County of Los Angeles’ Motion Judgment on the Pleadings on the Complaint in Case No. ****0736 is DENIED AS MOOT. The Court grants enters dismissal of the Complaint in Case No. ****0736 as requested by Plaintiff Denise Bertone.

Factual Background

This is a consolidated action for whistleblower retaliation. The 2017 and 2018 Complaints allege as follows. Plaintiff Denise Bertone (“Bertone”) worked as a coroner investigator with the Los Angeles county Department of the Coroner-Medical Examiner. (2017 Complaint ¶ 9.) Plaintiff used her nursing background to investigate the deaths of children. (2017 Complaint ¶¶ 12–18.)

In 2013, Bertone investigated the death of a child who had entered a coma after being submerged in a washing machine. (2017 Complaint ¶ 30.) It was planned for the boy to be taken off his ventilator, and for a nonprofit organ-harvesting organization with substantial ties to the LA County’s Coroner-Medical Examiner office (One Legacy) to then harvest certain of the boy’s organs. (2017 Complaint ¶ 32.) But when the boy was taken off the ventilator, he continued to gasp for air and did not enter cardiac arrest. The attending physician then administered a large dose of Fentanyl to induce the boy’s death while One Legacy’s harvesting team waited in the operating room. (2017 Complaint ¶ 34.)

Bertone, upon investigating the death, concluded that the boy had been killed by the administration of a large dose of Fentanyl, rather than cardiac arrest from being taken off his ventilator, and therefore that a homicide had been committed. (2017 Complaint ¶ 38.) Bertone communicated her conclusions to her supervisor and requested further testing of the boy’s blood. (2017 Complaint ¶¶ 37–43.) Further tests confirmed extreme levels of Fentanyl in the boy’s blood. (Complaint ¶ 43.) Bertone’s supervisor confirmed in discussions with Bertone that the boy had been killed to provide organs but told her that she “can’t say that” and refused to change the death certificate to reflect these conclusions. (2017 Complaint ¶¶ 47–48.)

Bertone had been removed from her former assignment following medical leave in January 2015. (2017 Complaint ¶ 44.) During her investigation and complaints regarding the boy’s death, Bertone repeatedly requested and was denied reinstatement to her old assignment. (2017 Complaint ¶¶ 52–61.) This denial was in retaliation for her whistleblowing. (2017 Complaint ¶ 61.) Plaintiff was also denied a promotion to lieutenant that she requested, again for retaliatory reasons. (2017 Complaint ¶ 68.)

After filing suit based on the above facts in May 2017, Bertone was constructively terminated in December 2017. (2018 Complaint ¶ 82.)

RELEVANT procedural history

Bertone filed the Complaint in Case No. ****0736 on May 10, 2017, alleging one cause of action for Whistleblower Retaliation under Labor Code ; 1102.5.

Bertone filed the Complaint in Case No. 18STCV04681 on November 13, 2018, alleging one cause of Action for Whistleblower Retaliation under Labor Code ; 1102.5.

On November 21, 2018, this Court found that Case No. ****0736 and Case No. 18STCV04681 are related, with Case No. ****0736 as the lead case.

On February 20, 2019, the parties stipulated to consolidate Case No. ****0736 and Case No. 18STCV04681.

On September 30, 2021, Defendant County of Los Angeles filed the instant Motion for Judgment on the Pleadings on the Complaint in Case No. ****0736.

On October 6, 2021, the Court granted County of Los Angeles’ ex parte application to advance the hearing date for the Motion for Judgment on the Pleadings.

On October 25, 2021, Bertone filed a request for dismissal of the Complaint in Case No. ****0736. The Clerk of Court did not enter that requested dismissal for the following reason: “Unable to enter a dismissal with language Stated in item 1b.(6) without the Court Order. 2/20/2019, ****0736 (lead) &18STCV04681 (non-lead), consolidated; all hearing dates under 18STCV04681 were advanced and taken off calendar.”

There is no filed opposition.

Discussion

  1. REQUESTS FOR JUDICIAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure ;438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)).

Judicial notice may be taken of ;“(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code ; 452.) ;

County requests that this Court take judicial notice of Exhibits A-G, which are follows:

(1) Exhibit A – Bertone’s claim filed on May 9, 2017;

(2) Exhibit B – Complaint in Case No. ****0736 filed on May 10, 2017;

(3) Exhibit C – letter dated June 7, 2017 notifying Bertone that her claim was rejected;

(4) Exhibit D – Bertone’s amended claim filed on May 11, 2018;

(5) Exhibit E – letter dated May 21, 2018 notifying Bertone that her claim was rejected;

(6) Exhibit F – Complaint in Case No. 18STCV04681 filed on November 13, 2018;

(7) Exhibit G – the parties’ stipulation to consolidate Bertone’s Complaints filed on May 10, 2017 and November 13, 2018.

The Court GRANTS the unopposed requests for judicial notice.

  1. MOTION FOR JUDGMENT ON THE PLEADINGS

“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.” (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321.) When considering a motion for judgment on the pleadings, the court not only should assume that all facts alleged in the pleading are true but also should give those alleged facts a liberal construction. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515–516.) In particular, the court should liberally construe the alleged facts “‘with a view to attaining substantial justice among the parties.’ [Citation.]” (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232.)

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., ;; 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. ; 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, the County moves for judgment on the pleadings on the grounds that the Complaint in Case No. ****0736 does not comply with Government Code section 954.4 and related provisions.

  1. Whether Bertone’s Request for a Dismissal Should Moot This Motion

As a preliminary matter, the Court independently questions whether Bertone’s request for a dismissal of the underlying Complaint assuming the Court grants that request should moot County of Los Angeles’ Motion. County of Los Angeles does not address this issue in the Motion because the request occurred after the Motion was filed. The Court will hear further from County of Los Angeles on this issue at the hearing. Nevertheless, as explained below, the Court does find this issue dispositive and appropriate here.

Code of Civil Procedure section 581 provides, in pertinent part, as follows:

(b) An action may be dismissed in any of the following instances:

(1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.

. . .

(c) A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.

. . .

(i) No dismissal of an action may be made or entered, or both, under paragraph (1) of subdivision (b) where affirmative relief has been sought by the cross–complaint of a defendant or if there is a motion pending for an order transferring the action to another court under the provisions of Section 396b.

Bertone’s request for dismissal was not entered purely for technical reasons because the Clerk of Court believed a request for dismissal in a consolidated case required a court order to do so. Regardless of whether the clerk needed to wait for a court order or could have acted on his or her own, the Court now finds that Bertone has the absolute right to dismiss her action. (Code Civ. Proc., ; 581, subd. (b)(1).) It is immaterial that the action is consolidated. (Aetna Casualty & Surety Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931 [“Finally, the fact that the coverage action had been consolidated with the damage action is of no consequence—a voluntary dismissal removes the court's jurisdiction over the dismissed suit even though it has been consolidated with another lawsuit for trial of common questions of fact.”].)

Accordingly, the Court is inclined to enter Bertone’s request for dismissal without reaching the merits of the Motion for Judgment on the Pleadings. However, before ultimately making that decision, the Court will hear further from County of Los Angeles on this issue at the hearing.

If the Court does not enter Bertone’s request for a dismissal, the Court reaches the merits of the application as follows.

  1. Merits

County of Los Angeles argues that Bertone did not comply with requirements of the Government Tort Claims Act.

Before suing a public entity, a plaintiff must present a written claim to the public entity. (Gov. Code, ; 945.4.) Government claims against a public entity for personal injury must be brought within six months of the accrual of the cause of action. (Id., ; 911.2.) After the denial of such a claim, a plaintiff must file a lawsuit no later than six months. (Id., ; 945.6, subd. (a)(1).)

Here, Bertone filed a tort claim on May 9, 2017 and filed the Complaint in Case No. ****0736 on May 10, 2017. Critically, Bertone filed the Complaint before the County of Los Angeles rejected her claim on June 7, 2017. This violates the Government Tort Claims Act. (Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211, 219; see also Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 247 [“Filing a government claim while simultaneously attempting to prosecute a cause of action based on that claim, as plaintiff did here, does not satisfy the purpose of the Government Claims Act, which is to give the public entity the opportunity to investigate and settle the claim without the cost of litigation.”].) Simply put, Bertone prematurely commenced this action.

There is a possible argument that County of Los Angeles is estopped from making this argument. In other words, Bertone could possibly argue that County of Los Angeles has allowed this action to go forward with significant motion practice resulting in Bertone believing that she had satisfied the requirements of the Government Tort Claims Act. However, Bertone has not opposed or made this argument. The Court declines to do so on its own.

Accordingly, if the Court were to reach the merits, the Court would grant County of Los Angeles’ Motion.

  1. Effect of Dismissal of Lead Case in a Consolidated Matter

Regardless of how the Court dismisses the Complaint in Case No. ****0736, it is necessary to discuss how the effect of a dismissal of a lead case affects the non-lead case in a consolidated action. The Court is unaware of any authority that controls this issue. In the absence of authority, the Court intends to proceed with the action by treating the dismissal as in effect a severance of the consolidation. Therefore, the action is no longer consolidated pursuant to February 20, 2019 minute order, and all subsequent filings should be filed under Case No. 18STCV0468.

  1. Conclusion

Accordingly, the Motion for Judgment on the Pleadings is DENIED AS MOOT. The Court grants enters dismissal of the Complaint in Case No. ****0736 as requested by Plaintiff Denise Bertone.

DATED: November 8, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

"


b'

Case Number: ****0736 Hearing Date: October 6, 2021 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DENISE BERTONE;

Plaintiff,

vs.

COUNTY OF LOS ANGELES, et al.;

Defendant.

Case No.:

****0736

Hearing Date:

October 6, 2021

[TENTATIVE] RULING RE:

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSE TO REQUEST FOR PRODUCTION NUMBERS 91-94; 96-99

Plaintiff’s Motion to Compel Further Responses is DENIED AS MOOT as to requests numbered 91-94, and DENIED as to requests 96-98, GRANTED as to request 99. The Court does not award sanctions.

Factual Background

Denise Bertone (“Plaintiff”) began her employment with the Los Angeles County Department of the Coroner-Medical Examiner as coroner investigator in or around 2002, where she investigated the deaths of infants and children. (Compl., ¶ 9.) Plaintiff alleges that One Legacy is a private non-profit organization that is the only organ and tissue harvesting in Southern California. (Id. ¶ 23.)

Plaintiff reviewed the death of a disabled boy (hereafter “Decedent”) who had entered a coma after being submerged in a washing machine. (Id. ¶¶ 29-30.) Upon his death, One Legacy obtained consent to have his guardians harvested for donation. (Id. ¶ 31.) Plaintiff alleges that the cause of death was the administration of Fentanyl. (Id. ¶ 37.) Plaintiff believed that this information disclosed violations of the California Penal Code, in that the physician that administered the Fentanyl committed a homicide. (Id. ¶ 38.) Plaintiff asserts that she was retaliated against for engaging in activities protected under the Labor Code through her admission of information which Plaintiff believed disclosed violations of the California Penal Code.

procedural history

Plaintiff commenced this action on May 10, 2017, against County of Los Angeles (“Defendant”) for whistleblower retaliation. On November 13, 2018, Plaintiff filed an action against Defendant for whistleblower retaliation in case number 18STCV04681. The Court found that the two cases were related on November 21, 2018.

Plaintiff filed the instant Motion to Compel Further Response to Request for Production Numbers 91-94 and 96-99 on September 10, 2021.

DiscussioN

  1. Motion to Compel Further Responses to Requests for Production

    California Rules of Court, Rule 3.1345 requires that motions to compel further responses to interrogatories and demands for inspection be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a).)

    Under the Code of Civil Procedure, Motions to Compel Further Responses must be accompanied by a meet and confer declaration. (CCP 2030.300(b)(1), 2031.310(b)(2).) These motions must be made within 45 days of the service of the verified response, or the propounding party waives any right to compel further responses. (CCP ;; 2030.300(c); 2031.310(c).)

    Under section 2031.310, a propounding party may move for an order compelling a further response if the propounding party deems that a statement of compliance with the demand is incomplete; a representation of the inability to comply is inadequate, evasive, or incomplete; or an objection in the response is too general or meritless. (CCP ; 2031.300(a).)

    Motions to compel further responses to requests for production of documents must set forth specific facts showing good cause justifying the discovery.

    The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to interrogatories or a demand for inspection, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of a sanction unjust. (CCP ;; 2030.300(d); 2031.310(h).)

  1. Request for Production Numbers 91-94

In opposition, Defendant states it provided code-complaint further responses to numbers 91-94 one day before the filing of the instant motion. Plaintiff does not dispute that this production moots her motion as to these requests.

  1. Request for Production Numbers 96-98

Defendant appears to state that it has provided further responses to Plaintiff’s Request for Production of Documents, numbers 96 through 98. However, it appears that Defendant did not provide Second Further Responses to these requests. Thus, the Court does not consider the motion moot as to these requests.

Requests 96, 97, and 98 relate to the production of communications about Plaintiff between Dr. Mark Fajardo, Dr. Lakshmanan, or Chief Brian Elias, and any employee of One Legacy from August 1, 2013, to March 31, 2016.

Defendant’s subject further responses indicate that no responsive documents exist.

The parties engaged in multiple IDCs regarding these requests. Following the first IDC, Plaintiff’s counsel provided search parameters, specifying that emails “about Plaintiff” were to include emails containing her first or last names in the subject heading or body of the email. (Wells Decl., Ex. 3.) Defense counsel later informed Plaintiff’s counsel that in order to find all email communications between the specified requests, Defendant would have to sift through every single email sent to and from County employees, which would be harassing, burdensome, oppressive, and unduly costly and time-consuming. (Id., Ex. 4.)

As to requests 96-99, Plaintiff later narrowed the emails to seek communications between the four named County employees and six specific One Legacy Employees. (Id., Ex. 5.) After additional IDCs, Defendant served the subject Further Responses stating that no responsive documents existed for requests 96 through 98 as to emails between the specified employees based on the search of the terms “Denise Bertone.” (Id., Ex. 6.) This production did not relate to Request 99.

Plaintiff states that this search is not in accordance with what was requested, and thus, warrants the instant motion.

Specifically, Plaintiff contends there is good cause to compel further responses and all responsive documents to these Requests for Production on the ground that the communications will help prove that her complaints about Decedent’s homicide and Dr. Fajardo’s cover up of the homicide caused her to be terminated as pediatric death investigator, and Defendant’s failure to later reinstate her. Plaintiff contends that all four named County employees – the four previous Coroner Department Chiefs – played a role in taking adverse actions against her. In her complaint, Plaintiff alleges that she was prohibited from returning to her former assignment by Dr. Fajardo, Chief Brian Elias, Dr. Rogers and Dr. Lakshmanan, and Dr. Lucas, at various times. (Compl., ¶ 84.)

Defendant state it stands by its Further Responses, arguing that the searches completed were proper, and that no responsive documents existed. Defendant suggests that Plaintiff’s motion shows that she is dissatisfied with the responses, which is not a proper basis for a motion to compel; Defendant argues that it cannot produce what it does not have.

Plaintiff, in reply, argues that Defendant has still failed to comport with the search terms identified by Plaintiff, such that court intervention is still necessary.

Plaintiff takes issue with the statement that no responsive documents exist as to the term “Denise Bertone,” not “Denise or Bertone.” (Reply, 4:6-10.) Plaintiff argues that Defendant’s supporting declaration confirms this noncompliance.

Defendant submitted the declaration of Wendy Myring, Administrative Deputy for Defendant, to explain the search process. Myring represents that 20 hours have been spent completing two sets of searches of 4 key terms/phrases as follows: Denise Bertone, 2013-05434, Cole Hartman [Decedent], and C. Hartman, within the email accounts of Dr. Lakshmanan, Dr. Fajardo, Dr. Rogers, and Brian Elias, while cross-referencing them with the specified One Legacy recipients and senders. (Myring Decl., ¶ 10.)

In using this system, Myring states that while the search terms can be searched with conjunctions such as “and/or,” searching “Denise Bertone” would bring up both first and last name, or first or last name. (Id. ¶ 11, emphasis added.) In contrast, a search using quotations around the name would only bring up communications containing the first and last name. (Id.) Defendant’s searches did not employ quotation marks. (Id. ¶ 12.)

Plaintiff appears to take issue with the fact that Defendant did not specifically search for “Bertone” or “Denise” but only “Denise Bertone.” However, based on the declaration of Wendy Myring, it appears to the Court that the method used by Defendant would in fact produce the same results. Myring stated in declaration that searching “Denise Bertone,” without quotations, would return results for both the first and last name, together, or separately, first name or last name, i.e., “Denise” or “Bertone,” which is what Plaintiff has asked of Defendant.

Accordingly, the Court decnies Plaintiff’s Motion to Compel Further Responses as to requests 96 through 98. Defendant has submitted evidence, through the declaration of Wendy Myring, that the search terms used were substantively compliant with Plaintiff’s request, despite not conforming to her request verbatim. Defendant has complied with the search parameters set forth by Plaintiff, and has found that no responsive documents exist. The Court cannot order Defendant to produce documents it does not possess.

  1. Request for Production Number 99

Defendant takes issue with this motion as it pertains to Request 99. In Plaintiff’s Request for IDC, Plaintiff identified the need to address all the above requests as well as number 99, but did not address this request in detail. As such, Defendant contends that it was unclear whether this request was at issue, and no representations were made regarding the completeness of its production. Defendant states that this demonstrates a failure to meet and confer, as required by the Code of Civil Procedure.

Plaintiff states that her July 1, 2021 Request for IDC did identify Request 99, and that while Plaintiff did not have the room in the request to discuss number 99, Plaintiff had previously filed requests for IDCs regarding this request. Plaintiff states that this is sufficient, and that if Defendant needed clarification as to this request, defense counsel should have communicated as such with Plaintiff.

The Court finds that there was sufficient meet and confer re: request 99. Defendant had the burden to justify its objections, but Defendant did not do so. (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220-221.) Defendant stated the burden to address the decencies of its responses is on Plaintiff. Because Defendant did not justify its objections, the Court finds that the objections to request 99 are meritless and grants the motion to compel further responses on this basis under section 2031.310. (CCP ; 2031.310(a)(3).)

  1. Sanctions

    Plaintiff requests the Court award sanctions in the amount of $10,950.00. Because the Court has denied a significant portion of her motion, the Court does not award Plaintiff sanctions.

    Plaintiff’s Motion to Compel Further Responses is DENIED AS MOOT as to requests numbered 91-94, and DENIED as to requests 96-98, GRANTED as to request 99. The Court does not award sanctions.

Plaintiff to give notice.

DATED: October 6, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

'


Case Number: ****0736    Hearing Date: August 11, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DENISE BERTONE;

Plaintiff,

vs.

COUNTY OF LOS ANGELES., et al.;

Defendants.

Case No.:

****0736;

Consolidated with 18STCV04681

Hearing Date:

August 11, 2020

[TENTATIVE] RULING RE:

DEFENDANT COUNTY OF LOS ANGELES’ MOTION FOR SUMMARY JUDGMENT

Defendant County of Los Angeles’ Motion Summary Judgment is DENIED.

Factual Background

This is a consolidated action for whistleblower retaliation. The 2017 and 2018 Complaints allege as follows. Plaintiff Denise Bertone (“Bertone”) worked as a coroner investigator with the Los Angeles county Department of the Coroner-Medical Examiner. (2017 Complaint ¶ 9.) Plaintiff used her nursing background to investigate the deaths of children. (2017 Complaint ¶¶ 12–18.)

In 2013, Bertone investigated the death of a child who had entered a coma after being submerged in a washing machine. (2017 Complaint ¶ 30.) It was planned for the boy to be taken off his ventilator, and for a nonprofit organ-harvesting organization with substantial ties to the LA County’s Coroner-Medical Examiner office (One Legacy) to then harvest certain of the boy’s organs. (2017 Complaint ¶ 32.) But when the boy was taken off the ventilator, he continued to gasp for air and did not enter cardiac arrest. The attending physician then administered a large dose of Fentanyl to induce the boy’s death while One Legacy’s harvesting team waited in the operating room. (2017 Complaint ¶ 34.)

Bertone, upon investigating the death, concluded that the boy had been killed by the administration of a large dose of Fentanyl, rather than cardiac arrest from being taken off his ventilator, and therefore that a homicide had been committed. (2017 Complaint ¶ 38.) Bertone communicated her conclusions to her supervisor and requested further testing of the boy’s blood. (2017 Complaint ¶¶ 37–43.) Further tests confirmed extreme levels of Fentanyl in the boy’s blood. (Complaint ¶ 43.) Bertone’s supervisor confirmed in discussions with Bertone that the boy had been killed to provide organs but told her that she “can’t say that” and refused to change the death certificate to reflect these conclusions. (2017 Complaint ¶¶ 47–48.)

Bertone had been removed from her former assignment following medical leave in January 2015. (2017 Complaint ¶ 44.) During her investigation and complaints regarding the boy’s death, Bertone repeatedly requested and was denied reinstatement to her old assignment. (2017 Complaint ¶¶ 52–61.) This denial was in retaliation for her whistleblowing. (2017 Complaint ¶ 61.) Plaintiff was also denied a promotion to lieutenant that she requested, again for retaliatory reasons. (2017 Complaint ¶ 68.)

After filing suit based on the above facts in May 2017, Bertone was constructively terminated in December 2017. (2018 Complaint ¶ 82.)

procedural history

Bertone filed the Complaint in Case No. ****0736 on May 10, 2017, alleging one cause of action for Whistleblower Retaliation under Labor Code ; 1102.5.

Bertone filed the Complaint in Case No. 18STCV04681 on November 13, 2018, alleging one cause of Action for Whistleblower Retaliation under Labor Code ; 1102.5.

County of Los Angeles filed the instant Motion for Summary Judgment on January 7, 2020.

Bertone filed an Opposition on February 26, 2020.

County of Los Angeles filed a Reply on March 6, 2020.

Discussion

  1. REQUESTS FOR JUDICIAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure ;438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). 

Judicial notice may be taken of ;“(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code ; 452.) ; 

County requests that this Court take judicial notice of: Exhibits A-F, H, L (seven documents and minute orders filed in the Delgado case); Exhibit G (the unpublished opinion from the California Court of Appeal in the Delgado case); Exhibits I-J (the Complaint filed in this case and the consolidated case), Exhibit K (a print-out from “Transparent California” showing Bertone’s salary from 2011-2019); Exhibit M (a print-out from Library.Municode.com showing Civil Service Rules, Rule 110.1, A, B, C, E).

The Court GRANTS the requests as to Exhibits A-J, and L. The Court DENIES the requests as to Exhibits K, and M, which are not authenticated and not the type of document of which the Court may take judicial notice.

  1. OBJECTIONS

Bertone submits objections to various of the County’s evidence submitted in Support of its Motion for Summary Judgment. Objections Nos. 12-13, and 18-20 are SUSTAINED, the remainder are OVERRULED.

The County submits (1) 151 objections to the Declaration of Bertone, to nearly every line of the declaration, many of which report “No Objection”; (2) 8 objections to the Declaration of Ortiz; (3) 11 objections to the Declaration of Castellino; (4) 80 objections to the Declaration of Wells; (4) 12 objections to the Declaration of Herron; (5) 17 objections to the Declaration of Pavek; (6) and 9 Objections to the Declaration of Kato.

The Court finds that the County’s objections constitute an abuse of the objection procedure. (Code Civ. Proc., ; 473c(q); Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532–533 [“at the summary judgment hearing, the parties—with the trial court's encouragement—should specify the evidentiary objections they consider important, so that the court can focus its rulings on evidentiary matters that are critical in resolving the summary judgment motion”].) To the extent that the objections are made to the facts stated below, they are overruled.

  1. MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “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).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. ; 437c, subd. (p)(2).) 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.)

Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Further, absent compliance with Code of Civil Procedure ;437c(t). “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., ; 437c(f)(1).)

Here, County moves for summary judgment on the single cause of action – Whistleblower Retaliation under Labor Code ; 1102.5.

  1. Collateral Estoppel

County argues that collateral estoppel bars Bertone’s claim that County retaliated against her by not returning her to her previous administrative assignment following her return from leave. (Motion at p. 13.) County contends Bertone’s former colleague, Raquel Delgado, claimed in prior litigation that the assignment should have been given to him when Bertone returned from leave but that the trial court granted summary judgment against Delgado, affirmed on appeal, based on a finding that the pediatric administrative assignment “could not have been given to Delgado because it never became available after the Department restructured its operations when Bertone” went on leave in April 2014.”

Citing Rodgers v. Sargent Controls & Aerospace (2006)132 Cal. App. 4th 82. 95 (as modified Feb. 7, 2006), County asserts that the ruling in the Delgado case that this ruling in the Delgado case collaterally estops Bertone from asserting that County retaliated against her when she returned from leave by not offering this assignment. The basis for this claim is that Bertone was a witness in the Delgado action and that Delgado was represented by the same attorney representing Bertone here. (Motion at p. 14.)This is a misstatement of both the ruling in Rodgers and of California law on collateral estoppel.

“In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding.” (Gikas v. Zolin (1993) 6 Cal.4th 841, 848.) The doctrine of collateral estoppel is only applied if several elements are satisfied:

“First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” (Id. at 849.)

The issue here is whether County can satisfy the fourth element—that there was privity between Delgado and Bertone. The sole case cited by County. Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, as modified (Feb. 7, 2006)., establishes that it cannot.

In Rodgers the Court held that “In the context of collateral estoppel, due process requires that the party to be estopped must have had an identity or community of interest with, and adequate representation by, the losing party in the first action as well as that the circumstances must have been such that the party to be estopped should reasonably have expected to be bound by the prior adjudication.” (Rodgers v. Sargent Controls & Aerospace, supra, 136 Cal.App.4th at 92.) A non-party should expect to be bound by the first case if he has control, or impact over the litigation, or could be charged with notice that he “avoided the prior proceedings at his peril.” (Id. at 93.) The Rodgers court further held that the fact that the plaintiff in a prior action shares counsel with the plaintiff in the current action does not “suffice to extend the doctrine of privity to his case”: “We also conclude that representation of different plaintiffs in different cases by the same attorneys is not a factor that justifies imposition of collateral estoppel to preclude litigation of an issue by appellant as a non-party to the prior actions, at least without evidence that through his attorney he participated in or controlled the adjudication of the issue sought to be relitigated.” (Id.) Based on these principles the court in Rodgers rejected the claim that collateral estoppel applied.

The County seems to rely the Rodgers’ reference to a Fifth Circuit case, Caufield v. Fidelity and Casualty Company of New York (5th Cir.1967) 378 F.2d 876, as support for its position. In Caufield in there was a previous trial in state court in which the plaintiffs retained the same lawyers as the lawyers plaintiffs retained in the federal case, the federal plaintiffs participated as witnesses in the state trial, the federal plaintiffs conceded that they would not be able to produce evidence different from that which had been produced in the first case, and the federal case had been stayed with the implicit understanding that the result in the State trial would resolve all identical claims. As the Court noted in Rodgers, even with all of these facts the Court in Caufield rejected the claim that collateral estoppel would apply, relying instead on judicial estoppel based on the “implicit understanding.” of the parties (Rodgers, supra.,136 Cal. App. 4th, at 94-5).

Here, the County presents no argument or evidence that Bertone had an interest in, or control of, the Delgado action, or that Delgado acted in a representative capacity for Bertone. The County presents no argument or evidence that Bertone’s evidence in this action does not extend beyond her witness testimony in the Delgado action. In the context of employment litigation, privity and collateral estoppel are generally found in cases involving classes or groups of employees, such as in wage and hour claims covering the same time period where the interests of all employees are intertwined such that the plaintiffs in the first action represented the interests of the plaintiffs in the second action. (Castillo v. Glenair, Inc. (2018) 23 Cal.App.5th 262, as modified on denial of reh'g (May 14, 2018), review denied (Aug. 8, 2018); Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223.) The County has presented no evidence that the interests of Delgado and Bertone are intertwined in a similar fashion.

Accordingly, the County is not entitled to a summary judgment based on collateral estoppel.

  1. Labor Code section 1102.5 – Whistleblower Retaliation

Labor Code ; 1102.5 is a statute for the protection of whistleblowing employees, and provides in pertinent part:

An employer . . . shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.

(Labor Code ; 1102.5(b).)

“The elements of a section 1102.5(b) retaliation cause of action require that the plaintiff establish a prima facie case of retaliation, and that if the defendant claims a legitimate, nonretaliatory explanation for its acts, that the plaintiff show this explanation is merely a pretext for the retaliation.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) To establish a prima facie case, “a plaintiff must show (1) plaintiff engaged in a protected activity, (2) plaintiff’s employer subjected plaintiff to an adverse employment action, and (3) there is a causal link between the two.” (Id.)

Here, the County argues that Bertone’s cause of action for violation of Labor Code section 1102.5 lacks merit because (1) there is no causal connection between Plaintiff’s protected activity and the alleged adverse employment actions; (2) the County had legitimate business reasons for its action, and (3) Plaintiff’s constructive termination claim is barred as a matter of law. (Motion at p. 14.)

  1. Protected Activity

The Complaint alleges that Bertone engaged in legally protected activities under Labor Code sections 1102.5 and 1102.6 by disclosing to the County information which Bertone believed constituted violations of California Penal Code sections 32, 135, 187, 192, and other laws. (Compl. ¶ 80.) Specifically, after investigating the death of the child, Bertone formed the opinion that the hospital’s administration of fentanyl caused the death of the child. (Compl. ¶ 37.) Bertone alleges that she emailed the Chief Medical Examiner-Coroner Dr. Mark Fajardo (“Fajardo”) on September 9, 2013 informing him of her opinion that the hospital physician’s actions violated Penal Code sections 187 and/or 192, in her reasonable belief. (Compl. ¶ 38.)

The County does not dispute that Bertone engaged in a protected activity. Accordingly, this element is not at issue in this Motion.

  1. Adverse Employment Action and Causal Link

Generally, the definition of adverse employment action for FEHA retaliation lawsuits is applied to retaliation lawsuits under Labor Code section 1102.5(b). (Patten, supra, 134 Cal.App.4th at 1387.)

Under FEHA, in Government Code section 12940(h), “it is an unlawful employment practice for an ‘employer ... to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049.)

Adverse employment actions are not limited to termination, rather, such action must “materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 367, review denied (Feb. 14, 2018).)

Bertone argues that “the totality of the circumstances in the fact-specific context of Bertone’s work environment reflects that Defendant subjected her to an adverse employment action.” (Oppo. at p. 9.)

“[T]here is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Yanowitz, supra, 36 Cal.4th at 1055.) It is appropriate to consider plaintiff’s allegations collectively because “[e]nforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the [retaliation] statute.” (Id. at 1056.)

Bertone presents evidence of various actions by the County: Dr. Fajardo eliminated her position as the pediatric death investigator and she became one of 50 coroner investigators assigned to conduct pediatric death investigations. (PMF ¶ 48.) After the elimination of her position, Bertone submitted evidence that she lost significant responsibility, she lost overtime, she never testified in a criminal trial again, her time working with homicide detectives was reduced, she never attended any ICAN Teen Suicide Review team meetings again, and she was not permitted to provide training to the other coroner investigator despite previously doing so and requesting to do so again. (PMF ¶¶ 49-52; Oppo. at p. 10.) Bertone also presents evidence that she lost the use of a department take-home vehicle and gas compensation, which she had from 2004-April 2014. (PMF ¶ 70; UMF ¶ 83.) Finally, Bertone presents evidence that she was passed over for a promotion to Supervising Coroner Investigator I, or “Lieutenant,” to a less qualified person. (UMF ¶ 170; PMF ¶ 135.)

Lastly, Bertone argues for constructive termination. “In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 315.) Bertone argues that she was forced to resign in 2017 after experiences a variety of negative treatments. (UMF ¶ 1; Bertone Evid., Bertone Decl. ¶¶ 156-158.) Bertone presents evidence that in addition to the above, throughout 2017 she was ignored by her colleagues when supervisors were nearby, and she was ignored and/or treated with open hostility by Chief Elias, Assistant Chief Ed. Winter, Lieutenant Yagerlender, and Lieutenant Fleak, which did not occur before she repeatedly complained to Dr. Fajardo regarding the death of the child. (PMF ¶¶ 140-151.) Additionally, Bertone offers the Declaration of Kim Pavek, a follow County coroner, who filed a sexual harassment complaint against another Lieutenant and then provided documentation to her supervisor regarding a disagreement with Bertone “because [she] was fearful that the Department would attempt to use the tiff between Denise and myself against me[.] (Bertone Evid., Patek Decl., ¶¶ 8-10.) Patek declares that her supervisor held up the document regarding the “tiff” with Bertone and said “’This is the icing on the cake – we’re trying to get rid of her’, or words to that effect.” (Bertone Evid., Patek Decl., ¶ 12.)

The County contends that “there is no common law constructive discharge allowed against a public entity” because the County is protected by governmental immunity. (Reply at p. 14.) The County misstates the law. Modern caselaw holds that actions against a public entity for claims of discharge from or termination of employment grounded on a whistleblower claim are not barred by governmental immunity. (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 365.) “To preclude a whistleblower from revealing improper conduct by the government based on confidentiality would frustrate the legislative intent underlying the whistleblower statutes. For reasons of public policy, actions against a public entity for claims of discharge from or termination of employment grounded on a whistleblower claim are not barred by governmental immunity.” (Id.)

The County also argues that Bertone cannot establish a causal link between her protected activity and any adverse employment actions. (Motion at pp. 20-21.) But circumstantial evidence may be used to establish a causal link between the plaintiff’s whistleblowing and their adverse employment action (Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 394.) Based on the evidence presented by Bertone a reasonable jury could find that there was a causal link between her whistleblowing activities and the retaliation against her. Rather than presenting evidence to the contrary, County inexplicably separates Bertone’s protected activity into pre- and post-2014, and only addresses causation as to a few specific adverse employment actions. (Motion at pp. 20-21.)

A causal connection can be established over a long period of time between the protected activity and the adverse employment actions, so long as the defendant “engaged in a pattern of conduct consistent with a retaliatory intent.” (Hawkins v. City of Los Angeles, supra, 40 Cal.App.5th at 394; McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468.) There is a material issue of disputed fact on this issue because a reasonable jury could believe that the County’s pattern of behavior over the course of 3-4 years constituted retaliatory conduct.

The County argues against Bertone’s evidence because it is largely comprised of “self-serving declarations.” (See, Reply at p. 10.) However, “Modern courts have recognized that all evidence proffered by a party is intended to be self-serving in the sense of supporting the party’s position, and it cannot be discounted on that basis.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1050.)

The evidence presented by County for its prima facie case largely establishes only a “he said/she said” credibility contest as to what events transpired with regards to Bertone’s employment with the County. (See, Kinsella v. Kinsella (2020) 45 Cal.App.5th 442, 450.)It is established law that on a summary judgment motion, ‘the court may not weigh the plaintiff's evidence or inferences against the defendants’ as though it were sitting as the trier of fact[.]’” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 113.)

Here, the County has either not addressed all of Bertone’s allegations in her complaint, or not rebutted Bertone’s evidence with a nondiscriminatory reason for each act. “Some [courts] have concluded an employee's prima facie case, even in the face of an employer's showing of a non-[discriminatory] reason for the adverse action, is alone sufficient to avoid summary judgment. Others have concluded Hicks requires the employee, once the employer has offered its non-discriminatory reason, show both that the reason is false and that the true reason for the adverse action was a discriminatory animus. What has been described as the predominant view, however, is somewhere in between and requires the employee rebut the employer's stated nondiscriminatory reason with substantial evidence of its falsity or present other evidence suggesting a discriminatory basis, or some combination of the two such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004.)

The County does not present a non-retaliatory reason for the acts supported by the evidence Bertone has presented. As in Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1060, the complaint here “alleges a pattern of systematic retaliation, and numerous cases recognize that adverse employment action includes treatment similar to that here at issue.” The County merely argues against many of the allegations of systematic retaliation (for example, the attitude of her supervisor, Dr. Fajardo suddenly becoming cold; or Bertone never testifying in a criminal trial against after the elimination of her previous position) on the basis of discrediting Bertone’s declaration as “self-serving.” (See, e.g., Reply SS, ¶¶ 29, 50.)

As discussed above, the evidence submitted by Bertone supports a claim that there was of a pattern of behavior extending for several years beginning at the time of her whistleblowing activity in 2013. Bertone presents evidence establishing her reduced interactions and opportunities not offered from 2013-2017 with Chief Elias, beginning when she disclosed her belief in the child’s true cause of death, and ultimately resulting in the County’s promotion of someone else for the permanent lieutenant position in 2017. (PMF ¶¶ 121-135.) Bertone also presents circumstantial evidence of a pattern of behavior among other supervisors that included additional overlooked/reduced opportunities, and hostility and isolation, and investigation, all of which began with her protected disclosures and complaints regarding the child’s cause of action and lasted up through 2017. (PMF 143-151, 168, 175-182.)

In Reply, the County does not present non-retaliatory reasons for these actions. (See, e.g., Reply SS, ¶¶ 50-70.) The County does make various claims about restructuring and promotions. (PMF, ¶¶ 49-54.) For example, the County alleges that “When plaintiff returned from leave and asked for her previous administrative assignment of primarily handling pediatric cases, Dr. Fajardo did not agree to go back to having only one pediatric investigator for the Department, and this decision was made a matter of best practices and because common sense dictates[…]” (PMF, ¶ 57.) This is contrasted with the evidence submitted by Bertone which the County does not provide any non-retaliatory reasons for, such as: “By late 2013, Dr. Fajardo’s attitude toward Bertone had become cold and aloof,” the fact that Bertone did not testify in trial after her position was eliminated, that she was not able to attend the “ICAN Teen Suicide Review Team meetings,” nor provide trainings to other coroner investigators. (Reply SS, ¶¶ 29, 50-52.)

After reviewing the materials and evidence, the Court finds that Bertone has offered evidence that raises triable issues of material fact as to whether Bertone suffered adverse employment actions and whether her protected whistleblower activity caused the adverse employment actions. The County has not rebutted this evidence by showing that there was a nondiscriminatory reason for each act. As the Court stated in Yanowitz v. L'Oreal USA, Inc., supra, 36 Cal.4th at 1061. ”We emphasize that we do not determine that the alleged adverse action occurred, or that it was not justified by bona fide concerns on the part of [the employer] with regard to [the plaintiff’s] general performance at work that might yet be proved at trial. We hold only that, at the summary adjudication stage, [plaintiff’s] evidence was sufficient to satisfy the adverse action element of her prima facie case. It remains for the trier of fact to decide whether [plaintiff’s] allegations are true.” The same is true here.

Accordingly, the Motion for Summary Judgment is DENIED.

DATED: August 11, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court



Case Number: ****0736    Hearing Date: January 31, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DENISE BERTONE;

Plaintiff,

vs.

COUNTY OF LOS ANGELES., et al.;

Defendants.

Case No.:

****0736;

Consolidated with 18STCV04681

Hearing Date:

January 31, 2020

[TENTATIVE] RULING RE:

DEFENDANT COUNTY OF LOS ANGELES’ MOTION FOR A PROTECTIVE ORDER, AND A REQUEST FOR MONETARY SANCTIONS

Defendant County of Los Angeles’ Motion for Protective Order is GRANTED as to questions (a) and (b) for Drs. Lakshmanan, Fajardo, and Brill [(a) To prohibit questions related to the standard of care for administration of Fentanyl by Dr. Brill, an employee of UCLA (not a County employee or a defendant); (b) To prohibit any testimony or opinion that Dr. Brill engaged in criminal conduct], and DENIED as to questions (c) for Drs. Lakshmanan, Fajardo, and Brill [(c) To prohibit questions related to whether Bertone’s assignment at the Coroner’s Office was available after her return from medical leave in 2016.]. Bertone and County of Los Angeles are to submit a stipulation agreeing that by reporting what she reasonably believed to be improper conduct by Dr. Brill, Bertone engaged in protected activity under Labor Code, Section 1102.5

Factual Background

This is a consolidated action for whistleblower retaliation. The 2017 and 2018 Complaints allege as follows. Plaintiff Denise Bertone (“Bertone”) worked as a coroner investigator with the Los Angeles county Department of the Coroner-Medical Examiner. (2017 Complaint ¶ 9.) Plaintiff used her nursing background to investigate the deaths of children. (2017 Complaint ¶¶ 12–18.)

In 2013, Bertone investigated the death of a child who had entered a coma after being submerged in a washing machine. (2017 Complaint ¶ 30.) It was planned for the boy to be taken off his ventilator, and for a nonprofit organ-harvesting organization with substantial ties to the LA County’s Coroner-Medical Examiner office (One Legacy) to then harvest certain of the boy’s organs. (2017 Complaint ¶ 32.) But when the boy was taken off the ventilator, he continued to gasp for air and did not enter cardiac arrest; the attending physician then administered a large dose of Fentanyl to induce the boy’s death while One Legacy’s harvesting team waited in the operating room. (2017 Complaint ¶ 34.)

Bertone, upon investigating the death, concluded that the boy had been killed by the administration of a large dose of Fentanyl, rather than cardiac arrest from being taken off his ventilator, and therefore that a homicide had been committed. (2017 Complaint ¶ 38.) Bertone communicated her conclusions to her supervisor and requested further testing of the boy’s blood. (2017 Complaint ¶¶ 37–43.) Further tests confirmed extreme levels of Fentanyl in the boy’s blood. (Complaint ¶ 43.) Bertone’s supervisor confirmed in discussions with Bertone that the boy had been killed to provide organs, but told her that she “can’t say that” and refused to change the death certificate to reflect these conclusions. (2017 Complaint ¶¶ 47–48.)

Bertone had been removed from her former assignment following medical leave in January 2015. (2017 Complaint ¶ 44.) During her investigation and complaints regarding the boy’s death, Bertone repeatedly requested and was denied reinstatement to her old assignment. (2017 Complaint ¶¶ 52–61.) This denial was in retaliation for her whistleblowing. (2017 Complaint ¶ 61.) Plaintiff was also denied a promotion to lieutenant that she requested, again for retaliatory reasons. (2017 Complaint ¶ 68.)

After filing suit based on the above facts in May 2017, Bertone was constructively terminated in December 2017. (2018 Complaint ¶ 82.)

procedural history

Bertone filed the Complaint in Case No. ****0736 on May 10, 2017, alleging one cause of action for Whistleblower Retaliation under Labor Code ; 1102.5.

Bertone filed the Complaint in Case No. 18STCV04681 on November 13, 2018, alleging one cause of Action for Whistleblower Retaliation under Labor Code ; 1102.5.

Bertone filed a Motion for Discovery of Peace Officer Personnel Records (Pitchess Motion) on July 19, 2019, which this Court granted.

Bertone filed the instant Motion to Compel Further Response and Production of Documents on July 22, 2019.

County of Los Angeles filed the instant Motion for Protective Order on January 24, 2020.

Bertone filed an Opposition to Defendant’s Motion for Protective Order on January 28, 2020.

County has not filed a Reply.

Discussion

  1. REQUESTS FOR JUDICIAL NOTICE

County requests that this Court take judicial notice of (1) Declaration of Dr. Mark Fajardo in support of the County’s Motion for Summary Judgment, or, in the Alternative, for Summary Adjudication of Issues; and (2) Declaration of Dr. Lakshmanan Sathyavagiswaran in support of the County’s Motion for Summary Judgment, or, in the Alternative, for Summary Adjudication of Issues. However, County has not attached these documents to the Request for the Court’s review, or otherwise provided sufficient information for the Court to assess these documents. Accordingly, the Requests are DENIED.

  1. MOTION FOR PROTECTIVE ORDER

County moves for a protective order pursuant to Code of Civil Procedures sections 2025.420(b), 2017.020, 2019.030(a), 2017.010. (Notice at p. 5.)

A party is entitled to take the oral deposition of any person, including any party to the action, regarding “any matter, not privileged, that is relevant to the subject matter involved in the pending action[.]” Cal. Code of Civ. Proc. ;;2017.010, 20205.010.

Upon motion and good cause court may issue a protective order preventing or limiting a deposition in order to protect a party or deponent from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Cal. Code of Civ. Proc. ;2025.420. Courts are explicitly prohibited from excluding parties to the action from attending a deposition. Cal. Code of Civ. Proc. ;2025.420(b) (12).

Further, pursuant to Code of Civil Procedure section 2017.020(a) “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

Bertone seeks to depose two former County Chief Medical Examiners-Coroners (Dr. Lakshmanan and Dr. Fajardo), and Dr. Judith Brill, the UCLA anesthesiologist who treated the decedent during his transition from life support. (Motion at p. 5.) In response, County seeks a protective order prohibiting the scope of questioning of Drs. Lakshmanan, Fajardo, and Brill as follows: “(a) To prohibit questions related to the standard of care for administration of Fentanyl by Dr. Brill, an employee of UCLA (not a County employee or a defendant); (b) To prohibit any testimony or opinion that Dr. Brill engaged in criminal conduct; and (c) To prohibit questions related to whether Bertone’s assignment at the Coroner’s Office was available after her return from medical leave in 2016.” (Motion at pp. 6-7.)

County argues that Bertone seeks to depose Drs. Lakshmanan and Fajardo regarding whether Dr. Brill committed a crime and that such questions do not establish retaliatory intent. (Motion at pp. 12-13.) County further argues that Bertone seeks to depose Dr. Brill, the UCLA doctor, in a manner essentially making her a “de facto defendant” regarding whether she committed an act of criminal conduct. (Motion at p. 14.) County argues that the intended questioning of Dr. Brill is irrelevant and collateral to an employment retaliation case, “especially when protected activity is not at issue.” County offers to “stipulate that Dr. Brill’s ‘actions in administering 500 mcg of Fentanyl to Code was a violation of Penal Code section 187’” and that Bertone “will not seek to depose Dr. Brill.” (Motion at p. 14.) Lastly, County argues that the collateral estoppel bars questioning Drs. Lakshmanan and Fajardo regarding whether Bertone’s former position was available after she returned from medical leave because Bertone was a witness in previous case Delgado v. County of Los Angeles wherein the issue of whether the position was available when Bertone return was decided in County’s favor. (Motion at p. 16.)

In Opposition, Bertone argues County has not established good cause for limiting her right to discovery. (Oppo. at p. 10.) Bertone contends that she is entitled to question Dr. Fajardo about why he resisted her requests to test the level of Fenanyl in the deceased’s blood, his state of mind and reasoning for rejecting, whether it was significant that the medical records reflected the administration of Fentanyl, why he closed the case after knowing the facts about the Fentanyl, and why he closed the case as a “near drowning” incident without testing the decedent’s autopsy blood. (Oppo. at p. 12.) Bertone also contends that she is entitled to question Dr. Lakshmanan why he change the decedent’s cause of death, and whether he was compelled by medical evidence to do so. (Oppo. at pp. 12-13.) Bertone argues that “if Plaintiff’s protected acts consist of disclosing what she reasonably believe to be the homicide of the boy and Dr. Fajardo's covering up of the boy's homicide-dearly much more than "innocuous workplace issues"-"it arguably [is more] likely supervisors [became] annoyed [and] angry at [her] for complaining and [sought] to retaliate against [her]." (Oppo. at p. 13.) Bertone does not address why the stipulation regarding protected activity will not suffice, Bertone also does not argue why she needs to depose Dr. Brill.

The right to privacy protects the “ ‘individual's reasonable expectation of privacy against a serious invasion.’ ” [citation] “If the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing interests, which include the interest of the requesting party, fairness to litigants in conducting the litigation, and the consequences of granting or restricting access to the information.” [citation] (Snibbe v. Superior Court (2014) 224 Cal.App.4th 184, 194.)

The Court finds that Bertone has not established sufficient necessity to depose all three deponents regarding (1) the standard of care, (2) Dr. Brill’s alleged criminal conduct. None of the questions that Bertone offers in her Opposition are regarding the above-two categories. Bertone has not offered any reason for needing to establish the standard of care for the administration of Fentanyl in an employment retaliation case unrelated to such standard of care, nor why it must be established that Dr. Brill engaged in criminal conduct, versus medical misconduct for example, to establish retaliation in an unrelated employment retaliation case not involving Dr. Brill’s workplace. County’s offered stipulation serves to accomplish Bertone’s stated goal in establishing that she was engaged in protected activity, without causing unwarranted annoyance, embarrassment, or oppression, or undue burden and expense to the deponents. Although the constitutional right to privacy is not absolute and may be outweighed by other concerns, a party seeking discovery of private matter must demonstrate a compelling need for the information. (Williams v. Superior Court (2017) 3 Cal.5th 531, 556.) Here, Bertone has not established, or even argued, a need for this information beyond it’s role in establishing her engagement in protected activity. This Court is not a criminal court engaged in the criminal prosecution of Dr. Brill.

However, the Court finds that County’s argument regarding collateral estoppel to prevent the depositions regarding the availability of Bertone’s position to be misplaced. The cases that County cites do not support its argument that collateral estoppel bars deposition questions. Bertone was not the plaintiff in the previous case and County has not provided the Court with sufficient documentation regarding Delgado v. County of Los Angeles for the Court to find otherwise.

Accordingly, Defendant County of Los Angeles’ Motion for Protective Order is GRANTED as to questions (a) and (b) for Drs. Lakshmanan, Fajardo, and Brill [(a) To prohibit questions related to the standard of care for administration of Fentanyl by Dr. Brill, an employee of UCLA (not a County employee or a defendant); (b) To prohibit any testimony or opinion that Dr. Brill engaged in criminal conduct], and DENIED as to question (c) for Drs. Lakshmanan, Fajardo, and Brill [(c) To prohibit questions related to whether Bertone’s assignment at the Coroner’s Office was available after her return from medical leave in 2016.]. Bertone and County of Los Angeles are to submit a stipulation agreeing that by reporting what she reasonably believed to be improper conduct by Dr. Brill, Bertone engaged in protected activity under Labor Code, Section 1102.5

As this Motion has only been granted in part, the Court declines to order sanctions.

DATED: January 31, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court



Case Number: ****0736    Hearing Date: January 14, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DENISE BERTONE;

Plaintiff,

vs.

COUNTY OF LOS ANGELES., et al.;

Defendants.

Case No.:

****0736;

Consolidated with 18STCV04681

Hearing Date:

January 14, 2020

[TENTATIVE]RULING RE:

Plaintiff Denise Bertone’s

SECOND Motion for Discovery of Peace Officer Personnel and Other Records of Los Angeles County Coroner’s Department Lieutenant Brian Kim and Plaintiff Denise Bertone

Plaintiff Denise Bertone’s Motion for Discovery of Peace Officer Personnel and Other Records of Los Angeles County Coroner’s Department Lieutenant Brian Kim and Plaintiff Denise Bertone is GRANTED, with the restriction that Requests 1(f) and 1(g) are limited to materials involving Kim’s conduct within five years of March 17, 2017.

Factual Background

This is a consolidated action for whistleblower retaliation. The 2017 and 2018 Complaints allege as follows. Plaintiff Denise Bertone (“Bertone”) worked as a coroner investigator with the Los Angeles county Department of the Coroner-Medical Examiner. (2017 Complaint ¶ 9.) Plaintiff used her nursing background to investigate the deaths of children. (2017 Complaint ¶¶ 12–18.)

In 2013, Bertone investigated the death of a child who had entered a coma after being submerged in a washing machine. (2017 Complaint ¶ 30.) It was planned for the boy to be taken off his ventilator, and for a nonprofit organ-harvesting organization with substantial ties to the LA County’s Coroner-Medical Examiner office (One Legacy) to then harvest certain of the boy’s organs. (2017 Complaint ¶ 32.) But when the boy was taken off the ventilator, he continued to gasp for air and did not enter cardiac arrest; the attending physician then administered a large dose of Fentanyl to induce the boy’s death while One Legacy’s harvesting team waited in the operating room. (2017 Complaint ¶ 34.)

Bertone, upon investigating the death, concluded that the boy had been killed by the administration of a large dose of Fentanyl, rather than cardiac arrest from being taken off his ventilator, and therefore that a homicide had been committed. (2017 Complaint ¶ 38.) Bertone communicated her conclusions to her supervisor and requested further testing of the boy’s blood. (2017 Complaint ¶¶ 37–43.) Further tests confirmed extreme levels of Fentanyl in the boy’s blood. (Complaint ¶ 43.) Bertone’s supervisor confirmed in discussions with Bertone that the boy had been killed to provide organs, but told her that she “can’t say that” and refused to change the death certificate to reflect these conclusions. (2017 Complaint ¶¶ 47–48.)

Bertone had been removed from her former assignment following medical leave in January 2015. (2017 Complaint ¶ 44.) During her investigation and complaints regarding the boy’s death, Bertone repeatedly requested and was denied reinstatement to her old assignment. (2017 Complaint ¶¶ 52–61.) This denial was in retaliation for her whistleblowing. (2017 Complaint ¶ 61.) Plaintiff was also denied a promotion to lieutenant that she requested, again for retaliatory reasons. (2017 Complaint ¶ 68.)

After filing suit based on the above facts in May 2017, Bertone was constructively terminated in December 2017. (2018 Complaint ¶ 82.)

procedural history

Bertone filed the Complaint in Case No. ****0736 on May 10, 2017, alleging one cause of action for Whistleblower Retaliation under Labor Code ; 1102.5.

Bertone filed the Complaint in Case No. 18STCV04681 on November 13, 2018, alleging one cause of Action for Whistleblower Retaliation under Labor Code ; 1102.5.

On August 15, 2019 the Court granted Bertone’s Motion for Discovery of Peace Officer Personnel and Other Records of Los Angeles County Coroner’s Department.

On November 15, 2019 Bertone filed this Second Motion for Discovery of Peace Officer Personnel and Other Records of Los Angeles County Coroner’s Department.

On December 2, 2019 Defendant County of Los Angeles (“County”) filed an Opposition.

On January 17,020 Bertone filed a reply.

Discussion

  1. PITCHESS MOTION

Evid. Code section 1043, subd. (a) requires that a party seeking disclosure of police officer “personnel records” file a particular motion, a Pitchess motion. (Cf. Pitchess v. Superior Court (1974) 11 Cal.3d 531.) “Personnel records” are defined as “primary records specific to each peace or custodial officer's employment, including evaluations, assignments, status changes, and imposed discipline.” (Pen. Code, ; 832.5, subd (d)(1).)

The Pitchess provisions “take precedence over the general discovery rules outlined in the Code of Civil Procedure.” (Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 400.)

Evid. Code section 1043, subd. (b) details what a Pitchess motion shall include:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard. (2) A description of the type of records or information sought. [And] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.

“A finding of ‘good cause’ under section 1043, subdivision (b) is only the first hurdle in the discovery process. Once good cause for discovery has been established, section 1045 provides that the court shall then examine the information ‘in chambers’ in conformity with section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the ‘conclusions of any officer investigating a complaint . . .’ and (3) facts which are ‘so remote as to make disclosure of little or no practical benefit.’” (City of Santa Cruz v. Municipal Court (“Santa Cruz”) (1989) 49 Cal.3d 74, 83.)

“Section 1043 clearly requires a showing of ‘good cause’ for discovery in two general categories: (1) the ‘materiality’ of the information or records sought to the “subject matter involved in the pending litigation,” and (2) a ‘reasonable belief’ that the governmental agency has the ‘type’ of information or records sought to be disclosed.” (Santa Cruz, supra, 49 Cal.3d at p. 83.) Courts have described that as a “relatively low threshold” for discovery, but have also noted that section 1045’s protective provisions offset that low threshold. (Id. at p. 83–84.)

Although Bertone’s motion requested a large series of documents, in Bertone’s Reply to limit to the motion to documents described in requests 2(a)-(c) and 3(b)-(c) with a statement under oath by the County that it has produced all of the documents requested in request 3(a). With respect to Requests2(a)-(c), the Court has already ordered production of the documents relating to this investigation. At the time of the initial production the County stated to the court that no final decision had been made. For the same reason the court initially ordered the production of documents, the court is also ordering production of the documents requested by requests 2(a)-(c) which would show whether any final conclusion has been made.

The County’s the documents requested in requests 3(b)-(c) involve a request for the identification of the individuals furnish information adverse to Bertone. The County’s principal justification for objecting to these requests is that the individuals complained about Bertone cannot be individually prosecuted. That contention, however, misses the point. If, in its investigation the County claims it received information from individuals which was adverse to Bertone, it is only fair that Bertone had notice of the identity of these individuals.

For these reasons and reasons stated in Bertone’s motion, the motion is GRANTED with respect to the documents requested in requests2(a)-(c) and 3(b)-(c). The County is also ordered to provide a statement under oath that all documents requested in request 3(a) have been produced.

Plaintiff to give notice.

DATED: August 15, 2019 ________________________________

Hon. Robert S. Draper

Judge of the Superior Court



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