Pending - Other Pending
Labor - Wrongful Termination
LOS ANGELES CITY OF
DOES 1 TO 100
NOVELL TODD F.
FEUER MICHAEL N. CITY ATTORNEY
8/3/2018: STIPULATION AND ORDER TO CONTINUE TRIAL
8/3/2018: Minute Order
1/31/2017: COMPLAINT FOR DAMAGES FOR: 1. HARASSMENT, RETALIATION AND DISCRIMINATION IN VIOLATION OF CALIFORNIA FEHA; ETC
2/8/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
2/10/2017: PROOF OF SERVICE SUMMONS
3/29/2017: PLAINTIFF'S PROOF OF SERVICE OF NOTICE RE: CONTINUANCE OF HEARING (CONFERENCE-CASE MANAGEMENT]
4/25/2017: PLAINTIFF LILLIAN WOODFIN-PARKER'S NOTICE OF POSTING ADVANCE JURY FEES
4/27/2017: FIRST-AMENDED COMPLAINT FOR DAMAGES FOR: 1. RETALIATION IN VIOLATION OF CALIFORNIA FEHA; ETC.
5/10/2017: Minute Order
5/23/2017: DEFENDANT CITY OF LOS ANGELES' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES' DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT
5/23/2017: DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF LILLIAN WOODFIN-PARKER'S FIRST AMENDED COMPLAINT FOR DAMAGES; ETC
5/23/2017: DECLARATION OF MEET AND CONFER COMPLIANCE BY STACEY ANTHONY IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES' DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES
7/13/2017: PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF LOS ANGELES' DEMURRER TO FIRST AMENDED COMPLAINT; ETC
Docketat 09:00 AM in Department 61; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party[+] Read More [-] Read Less
Docketat 09:00 AM in Department 61; Post-Mediation Status Conference (Conference-Post Mediation Status; Continued by Stipulation) -[+] Read More [-] Read Less
DocketMinute order entered: 2018-09-10 00:00:00; Filed by Clerk[+] Read More [-] Read Less
Docketat 3:00 PM in Department 61; Court Order - Held[+] Read More [-] Read Less
DocketSTIPULATION AND ORDER TO CONTINUE TRIAL[+] Read More [-] Read Less
DocketMinute order entered: 2018-08-03 00:00:00; Filed by Clerk[+] Read More [-] Read Less
DocketStipulation and Order; Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketMinute Order[+] Read More [-] Read Less
DocketAnswer to First Amended Complaint; Filed by Los Angeles, City of (Defendant)[+] Read More [-] Read Less
DocketDEFENDANT CITY OF LOS ANGELES' ANSWER TO PLAINTIFF LILLIAN WOODFIN-PARKER'S FIRST AMENDED COMPLAINT FOR DAMAGES[+] Read More [-] Read Less
DocketDEFENDANT CITY OF LOS ANGELES' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES' DEMURRER TO PLAINTIFF'S COMPLAINT[+] Read More [-] Read Less
DocketProof-Service/Summons[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketOSC-Failure to File Proof of Serv; Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Case Management Conference; Filed by Clerk[+] Read More [-] Read Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE[+] Read More [-] Read Less
DocketORDER TO SHOW CAUSE HEARING[+] Read More [-] Read Less
DocketComplaint; Filed by Lillian Woodfin-Parker (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT FOR DAMAGES FOR: 1. HARASSMENT, RETALIATION AND DISCRIMINATION IN VIOLATION OF CALIFORNIA FEHA; ETC[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
Case Number: ****8736 Hearing Date: January 07, 2021 Dept: 61
Defendant City of Los Angeles’s Motion for Summary Judgment or Adjudication is GRANTED as to the first through fourth and tenth causes of action with respect to Plaintiff Woodfin-Parker’s suspension, and DENIED as to the same causes of action with respect to Plaintiff’s failure to promote claims. The motion is GRANTED as to the fifth through ninth causes of action.
Defendant to provide notice.
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.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. ; 437c, subd. (f)(2).)
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).)
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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) 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.)
COLLATERAL ESTOPPEL/ISSUE PRECLUSION
City argues that Plaintiff is collaterally estopped from arguing that her suspension was motivated by retaliatory or discriminatory animus because she failed to assert such claims in her appeal of the suspension. (Motion at pp.5–6.)
Issue preclusion prevents relitigation of issues argued and decided in prior proceedings. The threshold requirements for issue preclusion are: (1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding.
(Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481, internal quotation marks and citations omitted.)
City relies on the case Basurto v. Imperial Irrigation District (2012) 211 Cal.App.4th 866. In that case, an employee of the Imperial Irrigation District was terminated following a collision involving a district vehicle, and the employee appealed his decision to the district’s governing board. (Id. at p. 873.) After a thorough evidentiary hearing, the board found that the employee’s termination was justified. (Id. at pp. 874–75.) The employee initiated a writ petition and a complaint alleging FEHA violations. (Id. at pp. 875–76.) The trial court denied the petition for mandamus relief, which was based on due process complaints, and later granted the district’s motion for summary judgment on the grounds that issue and claim preclusion barred the employee’s claims, because he failed to raise issues of discrimination at his termination hearing. (Id. at p. 877.) The court of appeal affirmed, reasoning that identical factual issues — the wrongfulness of the employee’s termination — were “at stake” in the administrative and civil proceedings, and that the issue of whether he was disparately treated was necessarily decided in the administrative proceeding. (Id. at pp. 887–88.) “[T]he issue whether Basurto's termination was wrongful was actually litigated and necessarily decided by the District Board, when it determined that Basurto's conduct in violation of District policy justified his dismissal, and that he had not been treated differently than other employees in being terminated.” (Id. at p. 890.)
City’s interpretation of the Basurto case and the doctrine of issue preclusion is mistaken. The doctrine of issue preclusion prevented the Basurto plaintiff from pursuing his FEHA claims in civil court because the issue of his termination’s appropriateness had been actually and necessarily decided against him in a prior administrative proceeding. To put it another way, “[t]he administrative findings eliminated any question regarding the wrongfulness of the discharge because they concluded the reasons given for the discharge were legitimate.” (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1487.) Here, City points to no such prior adverse determination against Plaintiff. Indeed, it is undisputed that the board in Plaintiff’s case found in her favor and formally set aside her suspension as unjustified. (Motion at p. 3.) City identifies no determination on any issue that prevents Plaintiff from bringing her claims here.
It appears that City means to argue, not that a prior determination on a particular essential issue prevents Plaintiff from prevailing in this case, but that Plaintiff’s failure to raise FEHA claims in her administrative proceeding precludes her from attempting to raise them now. The issue is thus properly termed one of claim preclusion, which “precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” (Mycogen Corp. v. Monsanto Corp. (2002) 28 Cal.4th 888, 897.)
But as City raises no proper argument as to claim preclusion or authority related thereto, it would be inappropriate to grant dispositive relief upon such grounds here. What authority exists suggests that claim preclusion would not apply in any event, since civil service proceedings to challenge disciplinary actions and FEHA civil actions, although potentially targeting identical adverse employment conduct, have been held to rest upon different primary rights. (See George, supra, 179 Cal.App.4th at pp. 1484–85 [holding that “issue preclusion does apply in FEHA actions where there has been a prior determination of issues in an administrative proceeding,” but that does not mean “that res judicata [claim preclusion] applied to bar a subsequent FEHA action.”].)
Accordingly, neither issue nor claim preclusion provide any basis to grant City’s motion.
STATUTE OF LIMITATIONS
City argues that Plaintiff’s FEHA claims are barred by the requirement that administrative FEHA complaints be filed with the Department of Fair Employment and Housing (DFEH) within one year of the date the alleged unlawful practice occurred. (Motion at p. 8, citing Gov. Code ; 12960, subd. (d).) City notes that Plaintiff filed her DFEH charge in January 2017, many years after the alleged wrongful conduct commenced in April 2011, and almost three years after she was informed of the suspension decision in March 2014. (Motion at p. 9; FAC ¶ 80.)
Although Plaintiff argues that her FEHA claims were equitably tolled while she pursued the administrative remedy of appealing her discipline internally, City argues that for such tolling to apply, “the filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim.” (Motion at p. 9; McDonald v. Antelope Valley Cmty. Coll. Dist. (2008) 45 Cal.4th 88, 102 fn. 2.) City argues that it had no notice throughout Plaintiff’s appeal that her alleged discipline was harassing, retaliatory, or discriminatory. (Motion at p. 10.)
The doctrine of equitable tolling applies “[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100.) Its application requires three elements: “timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.” (Id. at p. 102, fn. 2.)
It is the timely notice requirement upon which City relies in its motion. Notice for the purposes of equitable tolling means that “the filing of the first claim must alert the defendant in the second claim of the need to begin investigating the facts which form the basis for the second claim.” (Id. at p. 102 fn. 2.) City argues that no such notice was provided because the administrative appeal that allegedly tolled the statute concerned only whether City had satisfied its burden to justify its suspension of Plaintiff — i.e. whether Plaintiff had committed the misconduct that purportedly justified her suspension — rather than any affirmative claim that the motive for Plaintiff’s suspension was retaliatory or discriminatory. (Motion at pp. 9–10.)
Plaintiff disputes this characterization of the hearing. She relies on statements from the Hearing Examiner’s Report and Board of Civil Service Commissioners to the effect that her supervisor, the one responsible for her discipline and predominantly associated with the allegations in the present complaint, was an “unreliable” witness, that the record reflected “real animus” on the part of the supervisor, that she had “an agenda to correct [Plaintiff’s] perceived shortcomings,” and decided to “demote her or punish her for their perception of her alleged misconduct.” (Opposition Exh. 5.) Plaintiff also cites statements from the Civil Service Commissioners stating that, “if there hasn’t been any attention paid to [the supervisor’s] behavior, then I would suggest and hope that that’s done as well.” (Opposition Exh. 32.)
This court previously rejected City’s argument when it overruled City’s demurrer on limitations grounds, noting that Plaintiff had argued equitable tolling from the voluntary pursuit of administrative remedies, and that City had failed to respond. (See 7/28/2017 Order.)
Now that City has addressed the argument, the court agrees that the FEHA causes of action are not equitably tolled by this administrative proceeding. Plaintiff concedes in opposition that “[t]he primary issue before the Civil Service Board was whether the proposed discipline of Plaintiff was justified or not,” i.e. whether Plaintiff had committed the claimed misconduct. (Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 7.) Plaintiff’s own filings in that proceeding, submitted by Defendants, make no mention of discrimination or retaliation, but rather emphasize City’s burden to prove that Plaintiff’s suspension was justified by her misconduct, and that it had failed to meet that burden. (Motion Exh. F [Plaintiff’s Written Closing Argument].) The statements regarding the “animus” or “bias” of her supervisor that Plaintiff highlights here do not indicate that her claim provided notice of a FEHA violation, but rather the Board’s grounds for believing that the supervisor was an unreliable witness in a proceeding concerning Plaintiff’s alleged misconduct.
City also argues that Plaintiff’s failure to promote claims are untimely, because they were not at issue in her administrative proceeding and could not have been tolled thereby. (Motion at p. 10.) City notes that Plaintiff’s rejected promotions occurred before 2005 and in 2015, and both are time-barred on their own accord. (Motion at p. 10.) Although Plaintiff applied once more in June 2018, the claim for such promotion is not mentioned in the FAC. (Motion at p. 11.)
This argument is unavailing, as Plaintiffs’ claims for failure to promote are alleged to have begun in 2016 when she attempted to test out of her position, but was prevented by the lingering presence on her record of the discipline wrongfully imposed against her. (FAC ¶ 90.) Plaintiff herself testified that she attempted such a promotion three times from 2016 through 2017. (Opposition Exh. 2 at pp. 189–91.)
Accordingly, while the motion is properly GRANTED as to the first through fourth and tenth FEHA causes of action as they relate to Plaintiffs’ suspension, it is DENIED as to her claims for failure to promote.
GOVERNMENT CLAIMS ACT
City argues that Plaintiff’s claims under the Labor Code fail because she failed to file a tort claim with the public entity that she intended to sue as required under Government Code ; 945.4. (Motion at pp. 11–13.)
This argument formed the partial basis for City’s prior demurrer to these same claims, which the court rejected in its order of July 28, 2017. The court pointed to the holding of Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, which stated, “[C]ase law has recognized there is no requirement that a plaintiff proceed through the Labor Code administrative procedure in order to pursue a statutory cause of action.” (Id. at p. 331.) This court recognized that Lloyd did not explicitly address Government Claims Act requirements, but noted that City had failed to distinguish Lloyd in reply.
City now points to the case Le Mere v. Los Angeles Unified School District (2019) 35 Cal.App.5th 237, in which the court of appeal affirmed dismissal of claims under Labor Code ; 1102.5 and 226.7, on the grounds that the plaintiff had failed to timely file a government claim. (Id. at pp. 246–47.) City also notes that the holding of Lloyd addressed a plaintiff’s purported failure to exhaust administrative remedies, while the procedural requirements of the Government Claims Act occupies an entirely different sphere of law. (See Bozaich v. State of California (1973) 32 Cal.App.3d 688, 698 [“The doctrine of exhaustion of administrative remedies has no relationship whatever to division 3.6 of the Government Code, and it follows that any exception to that doctrine is not controlling here.”].)
Plaintiff in opposition argues that she was not required to submit a tort claim with the City because under Lloyd, she is not required to exhaust administrative remedies before bringing a claim under the Labor Code. (Opposition at pp. 22–24.) Plaintiff does not address Le Mere or case authority presented by City pointing out that administrative exhaustion requirements are entirely different from requirements to file a tort claim.
Accordingly, the motion is GRANTED as to the fifth through eighth causes of action. No such adjudication is proper as to the ninth cause of action under Labor Code ; 2698, or PAGA, because the Government Claims Act specifically exempts from claim requirements “[c]laims by the state or by a state department or agency or by another local public entity or by a judicial branch entity.” (Gov. Code ; 905, subd. (i).) PAGA claims are not individual claims but qui tam actions brought on behalf of the real party in interest, i.e. the state. (See Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 671 [210 Cal.Rptr.3d 352, 354, 5 Cal.App.5th 665, 671 [“The government entity on whose behalf the plaintiff files suit is always the real party in interest in the suit.”].] City thus has not shown that this is an appropriate basis to adjudicate the ninth claim in its favor.
City argues that Plaintiff cannot prevail on her ninth cause of action under the Private Attorney General Act (PAGA) because she brings it solely on her own behalf, and because PAGA claims cannot be brought against public entities. (Motion at pp. 13–15.)
City points to authority stating that “unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.” (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729, 733.) City argues that the PAGA statute contains no provision for its applicability to public entities. (Motion at p. 14.)
Moreover, City notes that the sole PAGA violation at issue here is Labor Code ; 1102.5. (FAC ¶ 163.) Labor Code ; 2699 allows aggrieved employees to bring suits to enforce “any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code.” (Lab. Code ; 2699, subd (a).) Thus the penalty-providing Labor Code section that Plaintiff seeks to enforce here is Labor Code ; 1102.5, which allows for civil penalties not exceeding $10,000 for each violation of the section. (Lab. Code ; 1102.5, subd (f.) But that same provision limits the availability of penalties to a defendant employer “that is a corporation or limited liability company,” not a public entity. (Ibid.)
Plaintiff responds that courts have used less-than-definitive language to limit PAGA claims to representative relief, as opposed to purely individual claims. (Opposition at pp. 24–25, citing Tanguilig v. Bloomingdale's, Inc.
Specific authority favors City on its arguments here. First, City is correct that individual PAGA actions are infirm. A PAGA plaintiff must bring claims “on behalf of himself or herself and other current or former employees.” (Lab. Code ; 2699, subd. (a).) At least one case has specifically interpreted this language to exclude the possibility of “individual” PAGA claims. “A plaintiff asserting a PAGA claim may not bring the claim simply on his or her own behalf but must bring it as a representative action and include ‘other current or former employees.’ . . . The PAGA statute does not enable a single aggrieved employee to litigate his or her claims, but requires an aggrieved employee ‘on behalf of herself or himself and other current or former employees' to enforce violations of the Labor Code by their employers.” (Reyes v. Macy's, Inc. (2011) 202 Cal.App.4th 1119, 1123–1124.) Thus Plaintiff cannot pursue a PAGA action purely by virtue of a violation of Labor Code ; 1102.5 that is personal to her.
Plaintiff also fails to answer City’s argument that a PAGA action cannot lie against a public entity under Labor Code ; 1102.5, instead choosing to cite authority for the broader proposition that PAGA may apply to public entities in other circumstances. This may be true, but City’s argument is persuasive. PAGA allows the private enforcement of “any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency.” (Lab. Code ; 2699, subd. (a).) This includes, specifically, Labor Code ; 1102.5. (See Lab. Code ; 2699.5.) But while Labor Code ; 1102.5 allows for civil penalties, it does not allow them against public entities, but only against “an employer that is a corporation or limited liability company.” (Lab. Code ; 1102.5, subd. (f).)
The motion is therefore GRANTED as to the ninth cause of action.
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