This case was last updated from Los Angeles County Superior Courts on 03/23/2020 at 21:24:03 (UTC).

PATRICIA BILGIN VS CITY OF LOS ANGELES

Case Summary

On 08/28/2017 PATRICIA BILGIN filed a Labor - Other Labor lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC MARMARO and ALAN S. ROSENFIELD. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4034

  • Filing Date:

    08/28/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARC MARMARO

ALAN S. ROSENFIELD

 

Party Details

Plaintiff and Petitioner

BILGIN PATRICIA

Defendants and Respondents

LOS ANGELES CITY OF

DOES 1 TO 10

CITY OF LOS ANGELES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GIRARDI JOHN A. ESQ.

GIRARDI JOHN ALBERT

GIRARDI JOHN ALBERT ESQ.

Defendant and Respondent Attorneys

LEWIS BRISBOIS BISGAARD & SMITH LLP

STOCKLEY JEFFERY EDWARD

STOCKLEY JEFFERY E. ESQ.

 

Court Documents

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

11/22/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Stipulation and Order to use Certified Shorthand Reporter

11/22/2019: Stipulation and Order to use Certified Shorthand Reporter

Order - COURT'S RULING

11/22/2019: Order - COURT'S RULING

Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION RE THE MENTAL HEALTH EXAMINATION OF PLAINTIFF; PROPOSED ORDER

12/12/2019: Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION RE THE MENTAL HEALTH EXAMINATION OF PLAINTIFF; PROPOSED ORDER

Ex Parte Application - EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING/OR SHORTENING TIME ON PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES AND RESPONSIVE DOCUMENTS TO PLAINTIFF'

1/2/2020: Ex Parte Application - EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING/OR SHORTENING TIME ON PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES AND RESPONSIVE DOCUMENTS TO PLAINTIFF'

Ex Parte Application - EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING/OR SHORTENING TIME ON PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES AND RESPONSIVE DOCUMENTS TO PLAINTIFF'

1/3/2020: Ex Parte Application - EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING/OR SHORTENING TIME ON PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES AND RESPONSIVE DOCUMENTS TO PLAINTIFF'

Ex Parte Application - EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING/OR SHORTENING TIME ON PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL THE DEPOSITION OF CRISTINA SARABIA; DECLARATION OF MELAN

1/3/2020: Ex Parte Application - EX PARTE APPLICATION FOR ORDER SPECIALLY SETTING/OR SHORTENING TIME ON PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL THE DEPOSITION OF CRISTINA SARABIA; DECLARATION OF MELAN

Ex Parte Application - EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL RESPONSES

1/7/2020: Ex Parte Application - EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL RESPONSES

Notice of Ruling

1/9/2020: Notice of Ruling

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

1/28/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES; HEAR...)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/28/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

CIVIL DEPOSIT -

3/27/2018: CIVIL DEPOSIT -

NOTICE OF CASE REASSIGNMENT AND ORDER

4/12/2018: NOTICE OF CASE REASSIGNMENT AND ORDER

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO EXCEED PAGE LIMIT)

6/5/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO EXCEED PAGE LIMIT)

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

1/22/2018: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

NOTICE OF AUTOMATIC THIRTY-DAY EXTENSION PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(A)(2); DECLARATION OF BRENDAN T. SAPIEN IN SUPPORT THEREOF

11/9/2017: NOTICE OF AUTOMATIC THIRTY-DAY EXTENSION PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(A)(2); DECLARATION OF BRENDAN T. SAPIEN IN SUPPORT THEREOF

84 More Documents Available

 

Docket Entries

  • 04/28/2020
  • Hearing04/28/2020 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/21/2020
  • Hearing04/21/2020 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/25/2020
  • Docketat 10:00 AM in Department 37; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 02/18/2020
  • Docketat 08:30 AM in Department 37; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 02/14/2020
  • DocketReply ( to Motion to Compel the Deposition of Cristina Sarabia); Filed by Patricia Bilgin (Plaintiff)

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  • 02/05/2020
  • DocketNotice (of Parties to E-Serve on E-Filed Documents); Filed by Patricia Bilgin (Plaintiff)

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  • 01/29/2020
  • DocketNotice of Ruling (on Plaintiff's Motion to Compel The Deposition of Cristina Sarabia and Motion to Compel Further Responses to Request for Production of Documents, Set Two); Filed by City of Los Angeles (Defendant)

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  • 01/28/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion to Compel (Motion to Compel the Deposition of Cristina Sarabia) - Held

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  • 01/28/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion to Compel Further Discovery Responses - Held

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  • 01/28/2020
  • DocketMinute Order ( (Hearing on Motion to Compel Further Discovery Responses; Hear...)); Filed by Clerk

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136 More Docket Entries
  • 12/06/2017
  • DocketFirst Amended Complaint; Filed by Patricia Bilgin (Plaintiff)

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  • 12/06/2017
  • DocketFIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

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  • 11/09/2017
  • DocketNOTICE OF AUTOMATIC THIRTY-DAY EXTENSION PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(A)(2); DECLARATION OF BRENDAN T. SAPIEN IN SUPPORT THEREOF

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  • 11/09/2017
  • DocketNotice; Filed by City of Los Angeles (Defendant)

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  • 10/05/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 10/05/2017
  • DocketProof-Service/Summons; Filed by Patricia Bilgin (Plaintiff)

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  • 08/28/2017
  • DocketComplaint; Filed by Patricia Bilgin (Plaintiff)

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  • 08/28/2017
  • DocketCOMPLAINT AND DEMAND FOR JURY TRIAL 1. DISABILITY DISCRIMINATION IN VIOLATION OF FEHA ;ETC

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  • 08/28/2017
  • DocketSUMMONS

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  • 01/03/2017
  • DocketDeclaration; Filed by Plaintiff/Petitioner

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Tentative Rulings

Case Number: BC674034    Hearing Date: January 28, 2020    Dept: 37

HEARING DATE: January 28, 2020

CASE NUMBER: BC674034

CASE NAME: Patricia Bilgin v. City of Los Angeles

TRIAL DATE: April 28, 2020

MOTION: Motion to Compel the Deposition of Cristina Sarabia

MOVING PARTIES: Plaintiff, Patricia Bilgin

OPPOSING PARTY: Defendant, City of Los Angeles

PROOF OF SERVICE: OK

OPPOSITION: January 14, 2020

REPLY: N/A

TENTATIVE: Plaintiff’s motion to compel the deposition of Cristina Sarabia is GRANTED. The parties are ordered to meet and confer to schedule the deposition for a date after February 5, 2020, but by no later than March 30, 2020. Counsel for Plaintiff to give notice.

Background

This action arises out of Plaintiff, Patricia Bilgin (“Plaintiff”)’s employment with the Defendant, the City of Los Angeles (“City”) at the City Attorney’s office. Plaintiff alleges that she began working for City in 1995 and was promoted in approximately 2004 and again in 2008. As of 2008, Plaintiff was allegedly promoted to Supervising City Attorney. Plaintiff alleges that in the last several years of her employment, she disclosed information to various governmental agencies regarding what she believed to constitute violation of state, federal and/or local statutes that the City committed, and that the City retaliated against her in connection with these disclosures by, among other actions, excluding Plaintiff from critical meetings, removing Plaintiff from various projects, and eventually demoting her from her supervisory position in or about January 2015.

Plaintiff further alleges that as a result of the City’s conduct, she began suffering symptoms of stress, including high blood pressure and anxiety, which eventually required that she take a medical leave. Plaintiff alleges that while she was on medical leave, her colleague from the City, who covered her case load, failed to disclose to opposing counsel that she was taking protected medical leave and instead falsely implied that she had abandoned her duties. As a result of this, Plaintiff alleges that she was placed on “work plan,” which was “published” to Cristina Sarabia among others. Further, Cristina Sarabia is alleged to be one of the City employees who retaliated against Plaintiff.

Following the work plan, Plaintiff alleges that she again began experiencing symptoms of her illness, including dizziness, and subsequently went on another medical leave. During her medical leave, Plaintiff alleges that the City wrongfully terminated her, as evidenced by a December 2015 termination letter which allegedly contained numerous false statements. Further, Plaintiff alleges that the City violated its own policy to provide progressive discipline prior to termination, and that the City failed to fully pay her wages upon termination but instead reimbursed her approximately six months later.

Plaintiff’s Complaint, filed August 28, 2017, alleges nine causes of action: (1) disability discrimination in violation of the Fair Housing Employment Act (“FEHA”), (2) failure to provide a reasonable accommodation in violation of the FEHA, (3) failure to engage in the interactive process in violation of the FEHA, (4) retaliation in violation of the FEHA, (5) violation of the California Family Rights Act, (6) defamation, (7) retaliation in violation of Labor Code section 1102.5, (8) invasion of privacy, and (9) intentional infliction of emotional distress.

Plaintiff now moves to compel the deposition of Cristina Sarabia. City opposes the motion.

Discussion

I. Legal Standard

“If, after service of a deposition notice, a party to the action … without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).) The motion must set forth specific facts justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Id. § 2025.450, subd. (b)(1).)

II. Request for Judicial Notice

City requests as part of its opposition that the court take judicial notice, pursuant to Evidence Code sections 452 and 453, the following:

  1. Declaration of Vivienne Swanigan in support of City’s Opposition to Plaintiff Delia Sarmiento’s Ex Parte Application for Order Specially Setting or Shortening Time on Plaintiff’s Notice of Motion and Motion to Compel the Deposition of Cristina Sarabia.

The request for judicial notice is granted. The existence and legal effect of this document is a proper matter for judicial notice. (Evidence Code § 452 (d).)

II. Meet and Confer Efforts

The motion must be accompanied by a good faith meet and confer declaration under section 2016.040 or, “when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).)

A declaration under section 2016.040 must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)

Plaintiff submits the declaration of Melanie Rasic Savarese (“Savarese”) in support of its motion. Savarese attests that Cristina Sarabia (“Sarabia”) is an “extremely material witness” in the instant action as she was the Director of Human Resources from at least 2014 through early 2018. (Saravese Decl. ¶ 2.) Saravese attests that Sarabia’s name appears on over 1185 of the 3000 documents produced in this case to date and that there is testimony Plaintiff expects to get from Sarabia alone that she does not expect to get from other witnesses. (Id.)

Saravese further attests that Plaintiff began asking the City for dates for Sarabia’s deposition beginning February 2019, and that the City provided no dates, but eventually stated that Sarabia was on medical leave. (Saravese Decl. ¶ 3.) Thus, Plaintiff allegedly unilaterally noticed Sarabia’s deposition for August 16, 2019, “without much option.” (Id.; Exhibit 2.) Plaintiff was again allegedly informed that Sarabia was on medical lave and, as such, re-noticed the deposition for December 18, 2019. (Id.; Exhibit 3.) At this deposition, Plaintiff took a certificate of non-appearance. (Id.) According to Saravese, City has not served an objection to the notice of deposition to date, or otherwise filed a motion for protective order. (Saravese Decl. ¶ 4.)

The court finds that Plaintiff has sufficiently met and conferred pursuant to Code of Civil Procedure, section 2025.450, subdivision (b)(2). It is undisputed that Sarabia has not appeared for a session of deposition to date. Further, it appears from the Saravese Declaration that Plaintiff has inquired into Sarabia’s reasons for not appearing at deposition and have been told that Sarabia was on medical leave. Accordingly, this is sufficient under Code of Civil Procedure, section 2025.450, subdivision (b)(2).

III. Analysis

Plaintiff contends that an order compelling Sarabia’s deposition is required because the notice of deposition was properly served, and City never served an objection to the notice or sought a protective order. (Motion, 4-6.) Further, Plaintiff contends that she has made numerous attempts to work out the scheduling of Sarabia’s deposition with City but has not been provided with a date certain. (Motion, 6.) Plaintiff contends that therefore, the instant motion is necessary because Sarabia is a critical witness. (Motion, 4-6.)

City does not contend that Sarabia’s deposition should not go forward if she is medically able to attend, but they cannot compel her to appear while she is on medical leave. (Opposition, 4.) City submits the declarations of Jennifer Handzlick (“Handzlick”) and Jeffery E. Stockley (“Stockley”) in support of its opposition.

Handzlick attests that she is a deputy city attorney with the City and was assigned to oversee both this matter and the matter Sarmiento v. City of Los Angeles, in which Sarabia’s deposition was also requested. (Handzlick Decl. ¶¶ 2-4.) Handzlick attests that on January 8, 2018, the City received Sarabia’s most recent doctor’s note, which placed her off duty under Total Temporary Disability until February 5, 2020. (Handzlick Decl. ¶ 6.)

Similarly, Stockley attests that he is an attorney for the City. (Stockley Decl. ¶ 1.) Stockley attests that shortly after August 1, 2019, he informed Plaintiff’s counsel that Sarabia was out on medical leave. (Stockley Decl. ¶ 2.) Stockley attests that each time Saravese inquired regarding Sarabia’s medical leave on subsequent occasions, he informed Saravese that Sarabia was still out on leave. (Stockley Decl. ¶¶ 2-5.)

Plaintiff has demonstrated that the notice of Sarabia’s deposition was appropriately served, and that City never served an objection to the notice of deposition or otherwise moved for protective order. Plaintiff has also demonstrated, through the Saravese Declaration, that Sarabia is a critical witness. City does not appear to dispute any of these contentions, and instead contends only that an actual order compelling the deposition is not warranted because of Sarabia’s medical leave.

The court will issue an order compelling Sarabia to attend deposition, and further orders the parties to meet and confer on a date for the deposition to take place after February 5, 2020, but by no later than March 31, 2020.

Conclusion

Plaintiff’s motion to compel the deposition of Cristina Sarabia is GRANTED. The parties are ordered to meet and confer to schedule the deposition for a date after February 5, 2020, but by no later than March 31, 2020.

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HEARING DATE: January 28, 2020

CASE NUMBER: BC674034

CASE NAME: Patricia Bilgin v. City of Los Angeles

TRIAL DATE: April 28, 2020

MOTION: Motion to Compel Further Responses to Request for Production, Set Two

MOVING PARTIES: Plaintiff, Patricia Bilgin

OPPOSING PARTY: Defendant, City of Los Angeles

PROOF OF SERVICE: OK

OPPOSITION: January 14, 2020

REPLY: January 22, 2020

TENTATIVE: Plaintiff’s motion to compel further responses is DENIED. City to provide notice.

Background

This action arises out of Plaintiff, Patricia Bilgin (“Plaintiff”)’s employment with the Defendant, the City of Los Angeles (“City”) at the City Attorney’s office. Plaintiff alleges that she began working for City in 1995 and was promoted in approximately 2004 and again in 2008. As of 2008, Plaintiff was allegedly promoted to Supervising City Attorney. Plaintiff alleges that in the last several years of her employment, she disclosed information to various governmental agencies regarding what she believed to constitute violation of state, federal and/or local statutes that the City committed, and that the City retaliated against her in connection with these disclosures by, among other actions, excluding Plaintiff from critical meetings, removing Plaintiff from various projects, and eventually demoting her from her supervisory position in or about January 2015.

Plaintiff further alleges that as a result of the City’s conduct, she began suffering symptoms of stress, including high blood pressure and anxiety, which eventually required that she take a medical leave. Plaintiff alleges that while she was on medical leave, her colleague from the City, who covered her case load, failed to disclose to opposing counsel that she was taking protected medical leave and instead falsely implied that she had abandoned her duties. As a result of this, Plaintiff alleges that she was placed on “work plan,” which was “published” to Cristina Sarabia among others. Further, Cristina Sarabia is alleged to be one of the City employees who retaliated against Plaintiff.

Following the work plan, Plaintiff alleges that she again began experiencing symptoms of her illness, including dizziness, and subsequently went on another medical leave. During her medical leave, Plaintiff alleges that the City wrongfully terminated her, as evidenced by a December 2015 termination letter which allegedly contained numerous false statements. Further, Plaintiff alleges that the City violated its own policy to provide progressive discipline prior to termination, and that the City failed to fully pay her wages upon termination but instead reimbursed her approximately six months later.

Plaintiff’s Complaint, filed August 28, 2017, alleges nine causes of action: (1) disability discrimination in violation of the Fair Housing Employment Act (“FEHA”), (2) failure to provide a reasonable accommodation in violation of the FEHA, (3) failure to engage in the interactive process in violation of the FEHA, (4) retaliation in violation of the FEHA, (5) violation of the California Family Rights Act, (6) defamation, (7) retaliation in violation of Labor Code section 1102.5, (8) invasion of privacy, and (9) intentional infliction of emotional distress.

Plaintiff now moves to compel further responses to request for production of documents, set two. City opposes the motion.

Procedural History and Meet and Confer Efforts

On August 15, 2019, Plaintiff propounded request for production, set two. (Declaration of Melanie Savarese (“Saverese Decl.”), ¶ 2, Exhibit 1.) City served its responses on September 19, 2019. (Saverese Decl., ¶ 3, Exhibit 2.)

On October 2, 2019, Plaintiff sent a meet and confer letter outlining the deficiencies in City’s responses. (Saverese Decl. ¶ 4, Exhibit 3.) Thereafter, City’s counsel, Jeff Stockley allegedly indicated at a deposition that Defendant needed more time to respond. (Saverese Decl. ¶ 5, Exhibit 4.) Plaintiff allegedly agreed to issue an “open-ended extension,” and for Plaintiff to have two weeks from the time City responded to file a motion to compel, if any. (Id.) Specifically, Plaintiff’s meet and confer letter provided as follows:

“…You indicated that City needed more time. We agreed that City would have more time to respond to our letter and that Plaintiff would have two weeks from the date of said response in which to bring a motion to compel, if necessary. Obviously if amended responses are served, the motion to compel date would run from the date or service.”

(Saverese Decl., Exhibit 4.)

Thereafter, Plaintiff’s counsel allegedly inquired about City’s amended responses and additional responsive documents on numerous occasions but did not receive either amended responses or additional documents as of the date of this declaration. (Saverese Decl. ¶ 6, Exhibit 5.)

Plaintiff’s counsel contends that all of the requests at issue in this motion were drafted in response to City’s notice of proposed termination, in that they ask City to produce documents on how Plaintiff was disciplined compared to others working in the City Attorney’s office. (Saverese Decl. ¶ 7, Exhibit 6.)

Discussion

  1. Timeliness of Motions

Pursuant to Code of Civil Procedure section 2031.310, subdivision (c), a motion to compel further responses to request for production must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., §§ 1013, subd. (a); 2031.310, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2031.310, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).)

As described above, it appears from Plaintiff’s counsel’s meet and confer letters that Plaintiff’s counsel granted City an open-ended extension in which to provide supplemental responses, and that Plaintiff’s meet and confer deadline would be two weeks after City responded, if any. Further, it appears that City does not contend the instant motion is untimely. As such, the motion is timely.

  1. Discussion

Under the Discovery Act, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

On receipt of responses to requests for production, the propounding party may move for an order compelling a further response if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit. (See Code Civ. Proc., §§ 2030.310, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Plaintiff seeks an order compelling City to provide further responses to requests 1-3 and 15-17, as follows:

Request 1: Any and all notices of proposed termination YOU sent to any of YOUR employees working at the Los Angeles City Attorney’s Office in the last ten years.

Request 2: All documents that evidence, relate or pertain to discipline YOU imposed on any of YOUR employees working at the Los Angeles City Attorney’s Office in the last ten years for allegedly not reporting to work.

Request 3: All DOCUMENTS that evidence, relate to or pertain to discipline YOU imposed on any of YOUR employees working at the Los Angeles City Attorney’s Office in the last ten years for alleged attendance issues.

Request 15: All DOCUMENTS that evidence, relate to or pertain to any discipline YOU imposed on any of YOUR employees working at the City of Los Angeles City Attorney’s Office for “failure to follow established procedure or notification of inability to report for work.”

Request 16: All DOCUMENTS that evidence, relate to or pertain to any discipline YOU imposed on any of YOUR employees working at the City of Los Angeles City Attorney’s Office for “failure to provide information related to work to supervisors or others requiring the information.”

Request 17: All DOCUMENTS that evidence, relate to or pertain to any discipline YOU imposed on any of YOUR employees working at the City of Los Angeles City Attorney’s Office for “failure to adhere to [a] Work Plan.”

City responded to each request similarly by objecting that the requests were overbroad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. City further objected on the grounds that each request violated the privacy rights of third parties.

City’s opposition states that Plaintiff could have asked its chief of staff, Leela Kapur, regarding the information she sought to discover through these requests but did not do so in any detail. (Opposition, 4; Saverese Decl., Exhibit 7.) Specifically, the portion of Kapur’s deposition attached to the Saverese Declaration only demonstrates that Kapur was asked about what causes the City Attorney’s office to issue notices of proposed termination and whether any individuals offered proposed notices of termination were not then fired or offered resignation in lieu of termination. (Saverese Decl., Exhibit 7.)

Plaintiff contends that a further response and production of documents is necessary for each of the requests at issue because discovery of “comparable discipline” is routine and pretext for termination of employees may be discovered through such documents. Plaintiff relies primarily on three cases in support of this proposition: Colarossi v. Coty US, Inc. (2002) 97 Cal.App.4th 1142, 1154-1155 (Colarossi), Kotla v. Regents of the University of California (2004) 115 Cal.App.4th 283, 294 fn.6 (Kotla) and Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803 (Iwekaogwu). CITY contends that Plaintiff’s reliance on each of these cases is misplaced and, accordingly, that Plaintiff has failed to demonstrate good cause for a further response to each of these requests. (Opposition, 5-7.)

First, Plaintiff’s reliance on Colarossi is misplaced. In Colarossi, the Court of Appeal reversed the trial court’s grant of summary judgment in favor of the employer in an action alleging retaliation by Plaintiff, a former employee. (Colarossi, supra, 97 Cal.App.4th at 1155.) In doing so, the Court of Appeal noted that there was some evidence that the employer offered greater leniency to two other employees who were found to have engaged in fraudulent conduct. (Id. at 1154.) This case does not stand for the proposition that an employer is required to disclose disciplinary records of other employees in discovery, but it does stand for the proposition that such evidence can be relevant and admissible.

Second, Plaintiff’s reliance on Kotla is also misplaced. Kotla analyzed whether the trial court permitting Plaintiff Kotla’s human resources management expert to testify was error and concluded in part that it was. Specifically, the Kotla court founds that allowing the human resources expert to testifying to “indicators” of retaliation was improper because it invaded the province of the jury and lacked any foundation in the expert’s professional experience and expertise. (Kotla, supra, 115 Cal.App.4th at 291.) Accordingly, this case does not stand for the proposition that an employer was required to disclose disciplinary records regarding other employees as part of written discovery.

Third, Plaintiff’s reliance on Iwekaogwu is similarly misplaced. In Iwekaogwu, the court analyzed whether sufficient evidence supported the jury’s verdict in favor of Plaintiff on his retaliation claim. (Iwekaogwu, supra, 75 Cal.App.4th at 803.) In affirming the trial court’s judgment, the Court of Appeal found that Plaintiff offered sufficient evidence to create an inference that the employer’s reasons for its employment actions against Plaintiff were pretextual. (Id. at 817.) Again, the case does not address discoverability of private information about other employees, but it does suggest that such information may be relevant and admissible.

On reply, Plaintiff cites to Kerr v. U.S. District Court for the Northern District of California (9th Cir. 1975) 511 F.2d 192, 197-198 for the proposition that federal courts “frequently compel the personnel files of employees” in discrimination lawsuits. (Reply, 4.) However, Plaintiff’s reliance on this case is also misplaced. While Kerr did hold that a district court did not abuse its discretion in permitting discovery of other employees’ personnel files, the Ninth Circuit also noted that several documents requested were subject to a limited time period while others were to be disclosed only to plaintiff’s counsel and their staff. (Id. at fn.3.

While some limited discovery of treatment of similarly situated employees is probably warranted, it must be limited and subject of procedures to protect the privacy rights of third parties. Each of these requests ask City to produce documents for either the past ten years, or without a time limitation (as to requests 15-17). Plaintiff has provided no explanation for why she requires documents for this expansive time period, other than the general explanation that evidence of disciplinary actions done to other employees is necessary to investigate the proposed termination notice issued to her. This is insufficient for the court to issue an order compelling further responses.

Conclusion

Plaintiff’s motion to compel further responses is DENIED. City to provide notice.

Case Number: BC674034    Hearing Date: November 22, 2019    Dept: 37

HEARING DATE: November 22, 2019

CASE NUMBER: BC674034

CASE NAME: Patricia Bilgin v. City of Los Angeles et al.

MOVING PARTY: City of Los Angeles

OPPOSING PARTY: Plaintiff Patricia Bilgin

TRIAL DATE: February 25, 2020

PROOF OF SERVICE: OK

PROCEEDING: City of Los Angeles’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

OPPOSITION: Timely filed on November 8, 2019

REPLY: Timely filed on November 15, 2019

RECOMMENDATION: The court hereby GRANTS the City’s motion for summary adjudication as to Bilgin’s sixth, eighth, and ninth causes of action for defamation, invasion of privacy, and intentional infliction of emotion distress, DENIES the City’s motion for summary adjudication as to the remaining causes of action, and DENIES summary judgment.

Background

This whistleblower and disability discrimination case arises in connection with Patricia Bilgin (“Bilgin”)’s employment with Defendant City of Los Angeles (“City”).

The Second Amended Complaint (“SAC”) alleges that Bilgin was hired by City as a City Attorney in 1995. In 2004, Bilgin was promoted to the Environmental Protection Section, and in 2008 she was promoted to Supervising Assistant City Attorney in a specialized unit that she created, the Environmental Justice and Protection Unit. Bilgin suffered from a campaign of retaliation by her colleagues following several whistleblowing incidents in which she reported ethical issues regarding the conduct of her colleagues and the City Attorney’s Office to her supervisors and the State Bar. Moreover, Bilgin alleges that she was discriminated against and retaliated against for her use of mandatory medical leave. Specifically, the Deputy Chief of Complex and Special Litigation and Bilgin’s Supervisor, Tina Hess (“Hess”); her colleague Nicholas Karno (“Karno”); Chief of Staff, Leela Kapur (“Kapur”); and HR Director Cristina Sarabia (“Sarabia”) wrote reports and made defamatory statements to others about Bilgin because of her mental health issues while she was on protected medical leave. On December 3, 2015, City sent Bilgin a letter of proposed termination. In May 25, 2016, City filled Bilgin’s position with a younger, less-qualified City Attorney from the office, Jessica Brown. During this time, Bilgin remained on medical leave until her income dwindled to zero pay. According to Bilgin, she could have returned to work if City had engaged in a good faith interactive process and made reasonable accommodations because she has been working satisfactorily in an inferior position to the one she held before being demoted and retaliated against.

In the Second Amended Complaint, Bilgin alleges nine causes of action for: (1) disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to provide a reasonable accommodation in violation of the FEHA; (3) failure to engage in the interactive process in violation of the FEHA; (4) retaliation in violation of the FEHA; (5) violations of the California Family Rights Act (“CFRA”); (6) defamation; (7) retaliation in violation of Labor Code section 1102.5; (8) invasion of privacy; and (9) intentional infliction of emotional distress.

On March 26, 2018, the Honorable Marc Marmaro overruled City’s demurrer to the sixth and eighth causes of action of Bilgin’s First Amended Complaint (“FAC”) for defamation and invasion of privacy and sustained City’s demurrer to Bilgin’s ninth cause of action for intentional infliction of emotional distress.

Defendant City now moves for summary judgment, or in the alternative, summary adjudication.

Bilgin opposes the motion.

On November 15, 2019, the City filed its reply. The City’s reply asserts that Bilgin presents flawed arguments supported by inadmissible evidence that improperly conflate her causes of action for retaliation, wrongful termination, and discrimination in a futile attempt to defeat the City’s motion for summary judgment. The City asserts that Bilgin cannot raise an issue of triable material fact and that some of her claims are barred by governmental immunity. Additionally, in the case of her emotional distress claims, preempted by the Workers’ Compensation Act. More specifically, the City asserts that Bilgin was not disabled, Bilgin’s claims fail because City did not discriminate against her, Bilgin’s defamation, Labor Code section 1102.5, Invasion of Privacy, and Intentional Infliction of Emotional Distress claims are barred by the Government Claims Act, Bilgin’s defamation, invasion of privacy, and intentional infliction of emotional distress claims fail. All of Bilgin’s disputed facts and additional facts fail to demonstrate a triable issue of material fact. The City also objects to evidence submitted by Bilgin.

Evidentiary Objections [1]

Bilgin’s Objections to City’s Separate Statement

Bilgin makes several objections to the City’s evidence in her separate statement in opposition to City’s motion.

Pursuant to California Rules of Court, rule 3.1354, “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.”

The court additionally notes that courts have repeatedly held that objecting to the facts set forth by the moving party, rather than directly disputing the evidence itself, is grounds for deeming the material facts undisputed. (See Thompson v. Ioane (2017) 11 Cal.App.5th 1180, fn. 4 [“Briana and Michael filed separate statements in opposition to Thompson's motion for summary judgment. . . . Rather than unequivocally stating whether each material fact in Thompson's separate statement is disputed or undisputed, Michael objected to every fact on relevance grounds. We construe his separate statement as admitting all of the material facts set forth in Thompson's separate statement. . . . Briana also objected to certain facts instead of disputing them. We deem those facts to which she purported to object but did not dispute to be undisputed by her.”]; see also Catholic Healthcare West v. California Insurance Guarantee Association (2009) 178 Cal.App.4th 15, fn. 12; Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902.)

“If the moving party's statement rests on objectionable evidence, the opposing party's statement should state the objection by referring to the objection number of separately filed evidentiary objections.” (Cal. Rules of Court, rule 3.1354(b).) “The separate statement filed in opposition or reply to a motion may, in the right hand column, refer to specific evidentiary objections by objection number. However, the objection may not be restated or reargued in the separate statement.” (Ibid.) Furthermore, the Court can properly deny objections stated in separate statement: “a trial court is [not] obligated to give a party a second chance at properly formatting its evidentiary objections.” (Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8.)

Here, Bilgin’s response to City’s separate statement fails to comply with California Rules of Court, rule 3.1354. Bilgin’s responses to City’s separate statement argue objections that are not separately filed. For example, a review of Bilgin’s separate statement reveals that objections are embedded throughout the 95-page document, and these objections do not comply with California Rules of Court, rule 3.1354 as they are arguments regarding objections that have not been separately filed.

As such, these objections are improper. Thus, the court declines to rule on Bilgin’s objections improperly embedded within her separate statement. In reviewing the evidence, the court will discuss below whether City’s facts are accurately supported by the evidence.

Bilgin’s Evidentiary Objections to the Declaration of Tina Hess (“Hess Declaration”)

Objections 1-5: Overruled.

Bilgin’s Evidentiary Objections to the Declaration of Leela Kapur (“Kapur Declaration”)

Objections 1-6: Overruled.

City’s Evidentiary Objections to the Declaration of Melanie Savarese (“Savarese Declaration”)

Objections 1-11: Overruled.

Here, City’s objections that Bilgin’s counsel, Savarese, lacks personal knowledge of these documents and cannot properly authenticate them are overruled because these matters were produced during the course of this litigation. There is not true question of their authenticity.

City’s Evidentiary Objections to Bilgin’s Deposition, Volume I (“Bilgin Dep., Vol. I”)

Objection 12: Overruled.

City’s Evidentiary Objections to Bilgin’s Deposition, Volume II (“Bilgin Dep., Vol. II”)

Objection 13-16: Overruled.

City’s Evidentiary Objections to Bilgin’s Deposition, Volume III (“Bilgin Dep., Vol. III”)

Objection 17-31: Overruled.

Objection 32: Sustained as to “so then having a separate environmental nonprofit that’s going to be collecting money for these agencies creates the appearance of actual and real impropriety.” Overruled as to the balance.

City’s Evidentiary Objections to Bilgin’s Deposition, Volume IV (“Bilgin Dep., Vol. IV”)

Overruled: 34, 38-42,

Sustained: 33, 35-37, 43-44

Objection 45: Overruled as to “In a subsequent meeting between Josh Geller, myself, Leela Kapur and Cristina, they denied ever meeting with my ex-husband.” Sustained as to the balance.

City’s Evidentiary Objections to the Declaration of Patricia Bilgin (“Bilgin Declaration”)

Overruled: 49

Sustained: 46-47, 50-51, 53-54

Objection 48: Overruled as to “which I had done.” Sustained to the balance.

Objection 52: Sustained as to “I find it implausible that Ms. Hess had no idea where I was” and “Ms. Hess was aware” and “logic would dictate that I was still seeking care.” Overruled as to the balance.

City’s Evidentiary Objections to the Declaration of Jeffrey Isaacs (“Isaacs Declaration”)

Objection 55: Overruled.

City’s Evidentiary Objections to the Declaration of Elise Ruden (“Ruden Declaration”)

Overruled: 57-58, 60

Sustained: 56, 59.

City’s Evidentiary Objections to the Declaration of Delia Sarmiento (“Sarmiento Declaration”)

Overruled: 61-62.

City’s Evidentiary Objections to Exhibit 7, South LA Scrap Metal Facilities Document

Objection 63: Overruled.

City’s Evidentiary Objections to Exhibit 9, Sentencing Order

Objection 64: Overruled.

City’s Evidentiary Objections to Exhibit 24, Emails with Erwin Chemerinsky

Objection 65: Overruled.

City’s Evidentiary Objections to Exhibit 42, Email Conversation re: Fwd: Patty Bilgin 4017055

Objections 66-67: Overruled.

City’s Evidentiary Objections to Exhibit 45, Email Conversation re: Fwd: Patty’s rebuttal

Objection 68: Overruled.

City’s Evidentiary Objections to Exhibit 46, Transcript of People of State of California v. TDC

Objection 69: Overruled.

City’s Evidentiary Objections to Exhibit 48, Memorandum from Patty Bilgin to Tina Hess

Objection 70: Overruled.

City’s Evidentiary Objections to Exhibit 55, Letter re: Follow-up to 9-11-2015 Meeting from Patty Bilgin to Tina Hess

Objection 71: Overruled.

City’s Evidentiary Objections to Exhibit 65, Email from Bilgin’s counsel, Melanie Savarese, to City’s counsel, Jeffrey Stockley

Objection 72: Overruled.

City’s Evidentiary Objections to Exhibit 66, Email from Patty Bilgin to Leela Kapur

Objection 73: Overruled.

City’s Evidentiary Objections to Exhibit 70, Email Conversation re: Fwd: Patty Bilgin from Margaret Shikibu to Wanda Hudson

Objection 74: Overruled.

City’s Evidentiary Objections to Exhibit 73, [2] Complaint by Delia Sarmiento (BC710070)

Objection 75: Sustained.

City’s Evidentiary Objections to Exhibit 74, First Amended Complaint by Anthony Koutris (19STCV26947)

Objection 76: Sustained.

Request for Judicial Notice

The court “may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language…. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 939.)

The City requests the court take judicial notice of the complaint in this matter filed on August 28, 2017, Bilgin’s Second Amended Complaint filed on April 13, 2018, Bilgin’s Department of Fair Employment and Housing complaint and right-to-sue letter dated August 30, 2016,[3] and Bilgin’s government claim served upon City on November 8, 2016. (Defense Appendix, Exhs. 7-10.) The existence and legal effect of these documents are judicially noticeable; reasonably disputable assertions of fact contained therein are not. (Evid. Code, § 452, subd. (c).)

Discussion

I. Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

(Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the 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 the cause of action or a defense thereto.

(Code Civ. Proc., § 437c, subd. (p)(2).) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, supra, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

II. Analysis

A. First, Second, Third, and Fourth Causes of Action – Whether Any Alleged FEHA Violations that Accrued Prior to August 30, 2015 Are Untimely

The City argues that Bilgin’s claims of unlawful practices prior to August 30, 2015 are barred as untimely under Government Code section 12960 because she did not timely file a claim with the Department of Fair Employment and Housing (“DFEH”). Specifically, the City provides evidence of the notice of filing, which was sent to the City on August 30, 2016. The City contents that because Bilgin filed her DFEH compliant on August 30, 2016, any and all FEHA claims that occurred prior to August 30, 2015 are barred because Bilgin did not file a timely DFEH claim for such incidents.

“Under California law “an employee must exhaust the ... administrative remedy” provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) (Gov. Code, § 12960; cf. id., §§ 12901, 12925, subd. (b)) and obtaining the DFEH’s notice of right to sue (id., § 12965, subd. (b)), “before bringing suit on a cause of action under the act or seeking the relief provided therein.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 (Martin).)

A plaintiff asserting a FEHA claim must file an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) within one year from the date that the alleged unlawful practice or refusal to cooperate with the FEHA occurred. (Gov. Code, § 12960.) Acts occurring outside the one-year time frame cannot serve as the basis for liability unless an exception to the one-year limitations period applies. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1040.) The claimant must then file his complaint within one year of the date she receives a right to sue notice. (Gov. Code, § 12965; Hall v. Goodwill Industry of Southern California (2011) 193 Cal.App.4th 718, 723 (Hall).)

“Employees who believe they have been discriminated against generally have one year in which to file an administrative complaint with the DFEH, the agency charged with administering the FEHA.” (McDonald v. Antelope Valley Comm. College (2008) 45 Cal.4th 88, 106.)

In opposition, Bilgin argues that under the doctrine of continuing violations, causes of action one through four survive because the alleged conduct that occurred prior to August 2015 relates to the alleged conduct that occurred in 2016 and 2017.

“When an employer engages in a continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability harassment, and this course of conduct does not constitute a constructive discharge, the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 (Richards).)

An employer’s persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) if the employer’s unlawful actions are (1) sufficiently similar in kind (recognizing that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms); (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence. (Richards, supra, 26 Cal.4th at p. 823; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 [finding that continuing violation doctrine applies to limitations period for employment retaliation claims under the FEHA, and thus employee who claims a retaliatory course or conduct, rather than discrete act of retaliation, is not limited to employer’s alleged retaliatory acts occurring within one year of filing a claim].) “ ‘[P]ermanence’ in the context of an ongoing process of accommodation of disability or ongoing disability harassment, should properly be understood to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile. (Richards, supra, 26 Cal.4th at p. 823.)

Here, Bilgin filed her Department of Fair Employment and Housing (“DFEH”) claim on August 30, 2016. (Separate Statement in Support of City’s Motion for Summary Judgment (“DSS”) ¶ 119.) As such, generally, any claims prior to August 30, 2015 would be barred for failure to file a timely DFEH claim; however, Bilgin offers as evidence her deposition testimony in which she states that on February 2, 2015, Bilgin wrote a letter asking to be heard on her concerns about Nick Karno’s possible conflict and following her reports on Karno and Bilgin’s coworkers frequently made disparaging comments regarding Bilgin’s ability to do her job and maintain her composure. (Separate Statement in Opposition (“PSS”) ¶¶ 25-26, 66, 170, 177, 180-181, 185, 186-189, 197-199, 201, 210.) Furthermore, these comments and general conduct led to Bilgin’s mental breakdown in January 2016 which required hospitalization. (PSS ¶ 276; Savarese Decl., Exh. 1, Bilgin Dep. Vol. I, p. 90:1-2.) The after-effects of this breakdown continue today. (PSS ¶¶ 286-287.) This evidence shows that the City has engaged in similar harassment with a reasonable frequency. As such, Bilgin raises a triable issue of fact as to whether the continuing violation doctrine is applicable here.

Therefore, the City’s motion for summary adjudication based on Bilgin’s failure to timely file a claim with the Department of Fair Employment and Housing as to incidents that occurred prior to August 30, 2015 is denied.

B. First Cause of Action for Disability Discrimination in Violation of the FEHA[4]

The City argues that the first cause of action for disability discrimination in violation of the FEHA fails because Bilgin cannot establish a prima facie case because she did not qualify as a person with a disability under the FEHA, was not subject to an adverse employment action because of her disability, and all adverse employment actions were taken for legitimate business reasons.

Prima Facie Case of Disability Discrimination

McDonnell Douglas Test and Summary Judgment

“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden-shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964 (Swanson).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Swanson, supra, 232 Cal.App.4th at p. 964.)

California Courts have recognized that the McDonnell Douglas test was originally developed for use at trial, not in summary judgment proceedings. (Swanson, supra, 232 Cal.App.4th at p. 965.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiff’s claim or establish a complete defense to the claim.” (Id. at pp. 965–966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee’s prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.” (Id. at p. 966.) “[T]o avoid summary judgment [on the second of these two grounds], an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.” (Ibid.)

Accordingly, the court finds it is more appropriate to reverse the McDonnell Douglas burden on the present motion. Even if the court were to directly apply the McDonnell Douglas standard, however, the ultimate results would remain the same based on the record presented by the parties.

To establish a prima facie case for discrimination under the FEHA, a plaintiff must show that “(1) [she] was a member of a protected class, (2) [she] was qualified for the position [she] sought or was performing competently in the position [she] held, (3) [she] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 24 Cal.4th 317, 355 (Guz).)

“[T]he great weight of federal and California authority holds that an employer is entitled to summary judgment if, considering the employer’s innocent explanation for its actions, the evidence as a whole is insufficient to permit a rational inference that the employer’s actual motive was discriminatory.” (Guz, supra, 24 Cal.4th at p. 361.) “ ‘[L]egitimate’ reasons … are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Id. at p. 358.) An employer’s legitimate reasons “need not necessarily have been wise or correct.” (Ibid.) “It is the employer’s honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 436.) “In most cases of disparate treatment, the plaintiff will not have direct evidence of the employer’s discriminatory intent. … Thus, plaintiffs may demonstrate via indirect or circumstantial evidence that they were the victims of discrimination.” (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1749.)

“Once the employer makes a sufficient showing of a legitimate reason for [the adverse employment action] … then the [affected] employee seeking to avert summary judgment must demonstrate either (by additional facts or legal argument) that the defendant’s showing was in fact insufficient or (by competent evidentiary materials) that there was a triable issue of fact material to the defendant’s showing. With respect to the latter choice, the employee must produce substantial responsive evidence that the employer’s showing was untrue or pretextual. For this purpose, speculation cannot be regarded as substantial responsive evidence.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225 (Hanson).)

Whether There Was A Legitimate Reason for Adverse Employment Action Against Bilgin

The City contends that Bilgin was removed from her supervisory role after her supervisors investigated her ability to perform her position following employee complaints that she was acting erratically, having interpersonal issues with other employees, missing work, appointments, and hearing dates. (DSS ¶¶ 11-12, 17.) Bilgin’s direct supervisor, Hess, had numerous conversations with Bilgin about her performance in 2014, but her performance continued to deteriorate. (DSS ¶ 19.) In October 2014, Bilgin expressed that she was frustrated and feeling stressed by the responsibilities associated with supervising the Environmental Justice Unit and that such duties were distracting her from focusing on environmental justice matters, which was her area of interest. (DSS ¶¶ 21.) According to the City, pursuant to the concerns voiced by Bilgin and her increasing inability to perform well in her role as supervisor, City Attorney Michael Feuer and his Chief of Staff, Kapur, decided to relieve Bilgin of her supervisor duties on January 28, 2015. (DSS ¶¶ 23.) This evidence is sufficient for the City to meet its initial burden to present legitimate, nondiscriminatory reason for Bilgin’s demotion.

In opposition, Bilgin contends that the decision to demote her was prompted by protected complaints she made in 2012 about possible conflicts of interest with the City Attorney’s office. (PSS ¶ 23.) Bilgin also contends that the subsequent demotion of reassigning her cases in late 2015 and early 2016 was prompted by her use of protected medical leave. Either way, Bilgin asserts that whether these were the true reason for her demotion is a factual issue for the jury. (PSS ¶ 223.)

Bilgin cites to Humphrey v. Memorial Hospital Association (9th Cir. 2001) 239 F.3d 1128, 1139–1140 for the proposition that conduct resulting from a disability is considered part of the disability, including performance inadequacies resulting from said disability.

First, the court notes that Bilgin relies on federal authority. The Court of Appeal has found that, “[i]nasmuch as the FEHA and the interpretative regulations in California Code of Regulations were modeled on [these federal laws], decisions interpreting those laws may be useful in deciding cases under the FEHA.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 161.) However, when considering the same federal cases cited by Bilgin, the Court of Appeal determined that there was no analysis demonstrating why the federal courts held that the disability was equated to the disability-caused misconduct. The Court in Wills determined that an employer may discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability in the narrow context of threats of violence against coworkers. This holding left open to interpretation workplace conduct involving performance issues such as failing to submit timesheets and missing hearings and meetings. The court adopts the finding in Humphrey, that the conduct here, when related to missing work because of a disability, is conduct arising from the disability and therefore may be considered part of the disability.

Bilgin also cites to Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles & Ventura Counties (2009) 173 Cal.App.4th 740 for the proposition that evidence that the same employer discriminated against others is admissible to prove discrimination in a subsequent instance.

Johnson involved an employment discrimination action in which plaintiff was wrongfully terminated due to her pregnancy. At summary judgment, plaintiff introduced “me too” evidence of other women who were terminated while they were pregnant to demonstrate that her termination was made for pretextual reasons.

Johnson is distinguishable from the circumstances at hand so far as the FEHA complaints submitted by other City employees are concerned. As to the declaration of a former City Attorney’s Office employee that experienced similar circumstances and adverse employment action, the court finds that Johnson is applicable and those declarations are admissible evidence of the City’s pretextual reasons for removing Bilgin’s supervisory duties and reassigning her cases while she was on protected medical leave.

Bilgin provides evidence of emails sent internally about her mental health issues and inability to consistently appear at work and hearings because of unexpected medical leave. (PSS ¶ 211.) Bilgin also provides the declaration of a former City Attorney’s Office investigator, Delia Sarmiento (“Sarmiento”), who states that while she was on medical leave, she was forced to burn through all of her “benefit time” (sick time, vacation time, paid leave time, etc.) until she was paid nothing. (Savarese Decl. ¶ 7, Exh. 6, ¶ 10.) Ultimately, the City fired her on January 17, 2018 because they claimed they could not accommodate her, even though she presented it with multiple doctor’s notes clearing her to work without restrictions. (Id. at ¶ 11.) Sarmiento also states that she received emails while litigating her case against the City for FEHA violations of conversations between members of the City’s human resources department and union representatives colluded to ensure that she was not protected from adverse employment actions. (Id. at ¶ 12.) Taken together, the evidence Bilgin presents provides a showing that the employer’s showing was untrue or pretextual that is not merely speculative.

In sum, the court finds that the City meets its burden of presenting a legitimate, non-discriminatory reason for Bilgin’s demotion from supervisor to regular line deputy, but that Bilgin meets her responsive burden by demonstrating a triable issue of fact that the offered reason was untrue or pretextual and motivated by disability discriminatory bias, such that a reasonable trier of fact could conclude that the City engaged in intentional disability discrimination. (See, e.g, Swanson, supra, 232 Cal.App.4th at p. 966.) The court therefore DENIES summary adjudication on the first cause of action for disability discrimination under the FEHA.

  1. Second Cause of Action: Failure to Provide Reasonable Accommodation

The City argues that the second cause of action for failure to provide reasonable accommodation fails because Bilgin did not qualify as a person with a disability under the FEHA, she was not subject to an adverse employment action because of her disability, and that the City provided her with reasonable accommodations in the form of extended leave and a transfer to a different assignment.

Under the FEHA, employers must make reasonable accommodations for applicants’ and employees’ known disabilities so that they can perform a position’s essential functions, unless doing so would produce undue hardship to the employer's operations. (Gov. Code, § 12940(m); 2 Cal. Code Regs. (“CCR”) § 11068(a); see Fisher v. Superior Court (Alpha Therapeutic Corp.) (1986) 177 Cal.App.3d 779, 783.) “An employee cannot demand clairvoyance of his employer. First, the employee has a duty to inform the employer that he has a disability. An employer is not ordinarily liable for failing to accommodate a disability of which it had no knowledge.” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 349.) However, once an employer gains knowledge of the employee’s disability, either from the employee or some other means, the employer has an affirmative duty to make reasonable accommodations for the disability. The employer’s duty arises even if the employee does not request an accommodation. (2 CCR § 11068(a); see Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-950 [employer had duty affirmative duty to make known to disabled employee other job opportunities within company and to determine whether employee was qualified for those positions].) Thus, employers must proactively engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations. (Gov. Code, §§ 12940(n), 12926.1(e); Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.)

A reasonable accommodation may include:

(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.

(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

(Gov. Code, § 12926(p)(1), (2); see also 2 CCR § 11068 [providing additional examples and guidelines for reasonable accommodations].)

The court first notes that the City was under an affirmative duty to provide accommodation once on notice of Bilgin’s disability. (Prilliman, supra, 53 Cal.App.4th at 949-950; see also 2 CCR 11069(b)(2) [“An employer or other covered entity shall initiate an interactive process when… the employer… becomes aware of the need for an accommodation through a third party or by observation.”].) As such, the City’s contention that Bilgin never requested an accommodation does not itself defeat Bilgin’s claim because Bilgin presents evidence that shows that the City and its employees, including her supervisor, Hess, and HR Director, Sarabia, were aware of Bilgin’s medical conditions in November 2015. (Savarese Decl., Exh. 2, Bilgin Decl., ¶¶ 9, 21-24.) Bilgin also presents a triable issue of material fact as to whether the fact that she received a “read receipt” acknowledgment of her email to Sarabia, describing her “Status” on November 24, 2015, demonstrating that Sarabia was notified of Bilgin’s medical conditions. Prior to her demotion in January 2015, Bilgin also let Hess and Rosa Borrelli, her assistant, know that she would temporarily request medical leave to care for her partner and her attempt to mark her time as “medical leave” was rejected. (Savarese Decl., Exh. 2, Bilgin Decl., ¶¶ 8.)

Second, Bilgin offers sufficient evidence to raise a triable issue of fact as to whether she told Hess that she was unable perform her supervisory duties or whether she was just unable to supervise Nick Karno (“Karno”) and Jessica Brown (“Brown”) because they had been afforded a lot of autonomy during the prior administration and would not take direction from her and that they often accused Bilgin of favoritism toward Elise Ruden (“Ruden”). (DSS ¶¶ 21, contra Savarese Decl., Exh. 2, Bilgin Decl., ¶ 5.) Finally, Bilgin also testified and provided evidence that after Hess and Kapur were aware of Bilgin’s requests for leave to assist her partner, requests for medical leave to attend to her own health concerns, and accompanying doctor’s notes, Hess and Sarabia refused to provide Bilgin with the appropriate paperwork or approve Bilgin’s requests. (Savarese Decl., Exh. 2, Bilgin Decl., ¶¶ 9, 18-25; Exh. 1, Bilgin Dep. p. 515:14-21; Exh. 59; Exh. 63, Dr. Weiner off work note 11/24/15; Exh. 66, email to Kapur, 12/4/15; Exh. 67, fax of Dr. Weiner 11/24/15 note dated 12/4/15.) When Bilgin returned from medical leave, Hess’s assistant, Colleen Courtney, informed Bilgin that she would have no contact with defense attorneys and that she was transferred from the Environmental Justice Section to Central Filings as of May 2, 2017. (Savarese Decl., Exh. 1 Bilgin Dep. pp. 107:22-25, 337:10-15.) Moreover, when Bilgin returned, she was left with no choice but to consider other positions in the office because the City refused to remediate the issues with Karno and Hess. (Savarese Decl., ¶ 76.) Bilgin remained in those positions and was passed up for several promotions that she attempted to promote to since her return even though she believed she was qualified for those positions. (Savarese Decl., Exh. 1 Bilgin Dep. pp. 341:15-342:13.) From Bilgin’s evidence, a reasonable juror could conclude that the City failed to and continues to fail to make reasonable accommodations.

Therefore, the City’s motion for summary adjudication is DENIED as to the second cause of action.

  1. Third Cause of Action: Failure to Engage in Good Faith Interactive Process

The City argues that Bilgin’s claim for failure to engage in a good faith interactive process fails s a matter of law because Bilgin did not qualify as person with a disability under the FEHA and the City engaged in an interactive process with Bilgin resulting in providing her with extended leave and a transfer to a different assignment.

California Government Code section 12940(n) prohibits an employer from failing to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation.

As noted above in section C on page 16, the City was under an affirmative duty to provide accommodation once on notice of Bilgin’s disability. (Prilliman, supra, 53 Cal.App.4th at 949-950; see also 2 CCR 11069(b)(2) [“An employer or other covered entity shall initiate an interactive process when… the employer… becomes aware of the need for an accommodation through a third party or by observation.”].) As such, the City’s contention that Bilgin never requested an accommodation does not itself defeat Bilgin’s claim because Bilgin presents evidence that shows that the City and its employees, including her supervisor, Hess, and HR Director, Sarabia, were aware of Bilgin’s medical conditions in November 2015. (Savarese Decl., Exh. 2, Bilgin Decl., ¶¶ 9, 21-24.) Furthermore, as analyzed above, a triable issue of fact exists as to whether Plaintiff requested accommodation (by requesting her own medical leave starting in November 2015) for her medical conditions while she was employed by the City. Bilgin’s evidence that Hess and Savarese required Bilgin to use her own vacation time in order to take her own medical leave starting in November 2015, which was supported by a doctor’s note, further raise a triable issue of fact as to whether the City engaged in a timely, good faith, interactive process. (Savarese Decl., Exh. 2, Bilgin Decl., ¶¶ 9, 18-25; Bilgin Dep. p. 515:14-21; Exh. 27, August 17, 2015 off work note; Exh. 28, August 18, 2015 off work note; Exh. 31, August 25, 2015 off work note; Exhs. 29-30, 32, inter-office memos placing Bilgin on medical leave.)

As such, a triable issue of fact exists as to whether the Council engaged in a good faith interactive process as it relates to Plaintiff’s medical conditions and her job duties. Thus, the court DENIES the City’s motion for summary adjudication as to the third cause of action.

E. Fourth Cause of Action: Retaliation in Violation of the FEHA

The City argues that Bilgin’s fourth cause of action for retaliation in violation of the FEHA fails because (1) Bilgin was not subject to an adverse employment action because of her exercise of her rights under the FEHA; and (2) all adverse employment actions were taken for legitimate business reasons.

The elements of a prima facie case for retaliation are: (1) a plaintiff engaged in protected activities, (2) he was thereafter subjected to adverse employment action by her employer, and (3) there was a causal link between the two. (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 614 (Fisher).) “The retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.” (Id. at p. 615, internal quotation marks omitted.) As with a cause of action for discrimination under the FEHA, an employer may meet its initial burden by producing admissible evidence that the adverse employment action was taken for a legitimate, non-retaliatory reason. (Batarse v. Service Employees Int’l. Union, Local 1000 (2012) 209 Cal.App.4th 820, 831 (Batarse), citing Guz, supra, 24 Cal.4th at p. 355–356.)

As stated above in Section B, the City meets its initial burden to demonstrate that Bilgin was terminated for a legitimate, non-discriminatory reason, but Bilgin meets her responsive burden to demonstrate the existence of a triable issue of fact that the City’s asserted reason was untrue or pretextual and motivated by disability bias.

Bilgin presents evidence by way of her declaration, deposition testimony, and emails provided to her from the City in discovery in support of her retaliation claim. Bilgin provides evidence that she was engaged in protected medical leave beginning in August 2015. (Savarese Decl., Exh. 2, Bilgin Decl., ¶¶ 9, 18-25; Exh. 27, August 17, 2015 off work note; Exh. 28, August 18, 2015 off work note; Exh. 31, August 25, 2015 off work note; Exhs. 29-30, 32, inter-office memos placing Bilgin on medical leave.) Bilgin also presents evidence that she presented a doctor’s note to the City requesting time off from November 1, 2015 through January 1, 2016. (Bilgin Dep. p. 89:1-25.) She also provides evidence that during this time, City employees discussed removing her from all cases because of her mental health issues. (Savarese Decl., Exh. 34, email thread re: Patty Bilgin; Exh. 37, email 9/4/15, attaching “Bilgin Work & Conduct Concerns” including statements that Bilgin was “batshit crazy.”) These documents suggested that Bilgin’s mental health issues were actually a “work fitness issue” (Ibid.) Given that the conversation mentions her mental health issues and the fact that she was on medical leave that was supported by a doctor’s note, these internal discussions, which ultimately ended in her being removed from all cases and demotion to a “regular line deputy” in Central Filing upon her return from medical leave, presents a triable issue of material fact as to whether Bilgin was retaliated against on account of her disability and protected medical leave. (See Batarse, supra, 209 Cal.App.4th at pp. 832–833.)

Accordingly, the court DENIES summary adjudication on the fourth cause of action for disability-based retaliation in violation of the FEHA.

  1. Fifth Cause of Action for Retaliation in Violation of the California Family Rights Act (“CFRA”)

The City argues that Bilgin cannot establish a prima facie case for her fifth cause of action for violations of CFRA because (1) the City did not take any adverse employment action because of Bilgin’s exercise of her rights under CFRA; and (2) all adverse employment actions were taken for legitimate business reasons.

“[T]he elements of a cause of action for retaliation in violation of CFRA under the circumstances of this case are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.2 We shall address each of these elements in turn to determine whether Dudley's complaint states, or could be amended to state, facts sufficient to constitute a cause of action for retaliation in violation of CFRA.” (Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, 261.)

To be eligible for CFRA leave, an employee must have “more than 12 months of service with the employer....” (Gov. Code, § 12945.2, subd. (a).) Here, it is undisputed that Bilgin began working for the City in 1995. At the time of the alleged retaliation, Bilgin had been working for the City for over 15 years. Thus, Bilgin qualified for CFRA leave.

Under CFRA, an employer is generally required to grant an eligible employee’s request to take up to a total of 12 workweeks in any 12–month period for family care and medical leave. (Gov. Code, § 12945.2, subd. (a).) Here, Bilgin argues that she took leave in order to care for her domestic partner who was suffering from renal failure.

As discussed above on section B, although the City meets its initial burden to demonstrate that Bilgin was terminated for a legitimate, non-discriminatory reason, Bilgin meets her responsive burden to demonstrate the existence of a triable issue of fact that the City’s asserted reason was untrue or pretextual and motivated by disability bias. Moreover, Bilgin’s evidence of retaliation for her use of protected medical leave in January 2015 to care for her partner, Roberto Sotomayor “Sotomayor.” (Savarese Decl., ¶ 16, Exh. 15, ¶ 3, Exh. 2, Bilgin Decl., ¶¶ 8-9.) Bilgin presents a triable issue of material fact as to whether her use of time off to care for Sotomayor was protected under CFRA and whether any adverse employment action subsequent to that was retaliation in violation of CFRA. Given the timing of her use of medical leave in January 2015, this provides a more proximate causal result of her demotion from supervisor in January 2015 as discussed above. Moreover, this first attempt to use medical leave presents a triable issue of fact as to whether Bilgin’s absence in January impacted the managerial decisions made about Bilgin’s placement in the City Attorney’s Office later that year.

Accordingly, the court DENIES summary adjudication on the fifth cause of action for retaliation in violation of the California Family Rights Act.

  1. Sixth Cause of Action for Defamation

The City argues that Bilgin’s claims fail for common law claims for defamation fails because (1) Bilgin failed to comply with the Government Claims Act (Gov. Code, § 911.2, 945.4); (2) Government Code sections 815, 815.2, 820.2, 821.6, and 822.2 provide for immunity for the complained of conduct; and (3) Bilgin cannot establish a prima facie case for defamation because no third party was involved and the communications complained of are privileged and barred by Civil Code section 47.

Whether the City’s Claimed Government Immunity Bars Bilgin’s Claims

The City argues that all actions that would support defamation were predicated on the normal employment actions by City employees and are thus barred under the above mentioned governmental immunities.

Government Code section 821.6 provides that “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” (Govt. Code, § 821.6; see Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 496 (Kayfetz).) “If the employee is immune from liability, section 815.2 also immunizes the public entity.” (Gov. Code, § 815.2(b); Kayfetz, supra, 156 Cal.App.3d at p. 496.) Moreover, “A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” (Gov. Code, § 818.8.)

Here, Bilgin argues that City, by and through its employees acted with malice, thereby extinguishing any privilege. However, as above, even if it is proven that such conduct was conducted with malice, City would not be liable if said conduct was conducted in the scope of employment. Therefore, as a matter of law, if Bilgin asserts a vicarious liability theory to establish City’s liability for the torts of its employees, the City is immune for any false statements made, even if he or she acts maliciously or intentionally.

Bilgin presents evidence that her colleague, City Attorney Nick Karno, stated to opposing counsel that she was acting “crazy,” and was flaky and untrustworthy. (Savarese Decl., ¶ 34, Exh. 33, Nick Karno Memo 8/25/15; ¶ 61, Exh. 60, Nick Karno email re: Fwd: Incident with Patty Bilgin.) The City is immune even if these statements were made in the scope of his employment and with malice. Accordingly, the Court GRANTS summary adjudication of the sixth cause of action.

  1. Seventh Cause of Action for Retaliation in Violation of Labor Code, § 1102.5

The City argues that Bilgin’s seventh cause of action for violation of Labor Code section 1102.5 fails because (1) Bilgin failed to comply with the Government Claims Act (Gov. Code, § 911.2, 945.4); (2) there was no adverse employment action and any action cannot be linked to a protected activity; and (3) all employment actions were taken for legitimate business reasons.

Labor Code, section 1102.5, subdivision (b) prohibits an employer retaliating against an employee for “disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or violation or noncompliance with a state or federal regulation.”

The City contends that Bilgin’s seventh cause of action fails because she failed to comply with the Government Claims Act and there is no evidence that the City made an adverse employment action that can be linked to a protected activity under Labor Code section 1102.5. Specifically, the City presents evidence that Bilgin served her Government Claim on the City on November 8, 2016. (DSS ¶ 120, Defense Appendix, Exh. 10.) The City argues that Bilgin’s claims of whistleblower retaliation accrued to May 8, 2016, rendering her claim untimely.

Pursuant to Government Code sections 911.2 and 945.4, a suit brought against a public entity must be preceded by a written claim served on the entity and made not later than six months after the accrual of the cause of action.

A suit for “money or damages,” for purposes of the Government Claims Act’s notice of claim requirement, includes all actions where the plaintiff is seeking monetary relief, regardless whether the action is founded in tort, contract, or some other theory. (Hart v. Alameda County (1999) 76 Cal.App.4th 766, 778.)

As discussed above in section A, when an employer engages in a continuing course of unlawful conduct, the doctrine of continuing violation applies. Bilgin cites to Eng v. County of Los Angeles (C.D. Cal., June 14, 2006, No. CV0502686MMMSSX) 2006 WL 8442227, at *16 in which a federal court specifically applied of the doctrine of continuing violation to a plaintiff’s Labor Code section 1102.5. Although this unpublished federal opinion stands for merely persuasive authority, the court finds that the facts are analogous and that the analysis properly applies the doctrine of continuing violation to Labor Code section 1102.5 claims.

Bilgin also cites to Patten v. Grant Joint Union High School District (2005) 134 Cal.App.4th 1378 where the Court of Appeal applied a materiality test to determine whether a plaintiff had suffered an adverse employment action. In Patten, the Court found that a lateral transfer, taken in context of the plaintiff’s entire situation, met the materiality test for purposes of finding an adverse employment action. (Patten v. Grant Joint Union High School District (2005) 134 Cal.App.4th 1378, 1387.)

Here, Bilgin filed her Government Claim Act Claim on November 8, 2016. (DSS ¶ 120, Defense Appendix, Exh. 10.) As such, generally, any whistleblower retaliation claim Bilgin had prior to May 8, 2016 would be barred for failure to file a timely Government Claim; however, Bilgin offers as evidence her deposition testimony in which she states that on February 2, 2015, Bilgin wrote a letter asking to be heard on her concerns about Nick Karno’s possible conflict and following her reports on Karno, and Bilgin’s coworkers frequently made disparaging comments regarding Bilgin’s ability to do her job and maintain her composure. (PSS ¶¶ 25-26, 66, 170, 177, 180-181, 185, 186-189, 197-199, 201, 210.) Furthermore, these comments and general conduct led to Bilgin’s mental breakdown in January 2016 which required hospitalization. (PSS ¶ 276; Savarese Decl., Exh. 1, Bilgin Dep. Vol. I, p. 90:1-2.) The after-effects of this breakdown continue today. (PSS ¶¶ 286-287.) Additionally, Bilgin was subjected to a lateral transfer where she has been passed up for several promotions that she attempted to promote to since her return even though she believes she was qualified for those positions. (Savarese Decl., Exh. 1 Bilgin Dep. pp. 341:15-342:13.) Taken together, this evidence shows that the City has engaged in similar harassment with a reasonable frequency that meets the materiality test in Patten. As such, Bilgin raises a triable issue of fact as to whether the continuing violation doctrine is applicable to her Labor Code section 1102.5 claim.

Therefore, the City’s motion for summary adjudication based on Bilgin’s failure to timely serve it with a Government Claim as to incidents that occurred prior to May 8, 2016 is DENIED.

As discussed above in section A, Bilgin contends that she reported her ethical concerns about the City’s prosecution of then City Attorney Carmen Trutanich’s former client and Karno’s non-profit, “Climate Cents.” According to Bilgin, she reported these issues to her supervisors which upset her colleagues, especially Karno and Hess. (Savarese Decl., Exh. 1, Bilgin Dep. pp. 224:1-10, 427:10-23.) Bilgin’s repeated complaints demonstrate that she made a complaint of violation of ethical standards. (Savarese Decl., ¶ 2, Exh. 1, Bilgin Dep. pp. 223:8-224:13, 573:3-7, 597:2-5.) Bilgin’s evidence raises a triable issue of material fact as to whether the City retaliated against her for bringing these issues to her supervisor’s attention.

For these reasons, the court finds that Plaintiff demonstrates the existence of a triable issue that she engaged in protected activity under Labor Code, section 1102.5 and DENIES summary adjudication on the seventh cause of action.

I. Eighth Cause of Action: Invasion of Privacy

The City argues that Bilgin’s eighth cause of action for invasion of privacy fails because (1) Bilgin failed to comply with the Government Claims Act (Gov. Code, § 911.2, 945.4); and (2) Government Code sections 815, 815.2, 820.2, 821.6, and 822.2 provide for immunity for the complained of conduct.

As above in section G, Bilgin’s common law claims, including her claim for invasion of privacy, fail as a matter of law because any statement made by City’s employee’s in the scope of their employment entitles City to immunity under Government Code sections 815.2, 821.6, and 818.8.

For this reason, the court finds that Bilgin does not demonstrate the existence of a triable issue that the City is liable for the tort of invasion of privacy and GRANTS summary adjudication on the eighth cause of action. Having granted the motion on this basis, the court need not address the parties’ remaining arguments.

  1. Ninth Cause of Action: Intentional Infliction of Emotional Distress

The City argues that Bilgin’s ninth cause of action for intentional infliction of emotional distress fails because (1) Bilgin failed to comply with the Government Claims Act (Gov. Code, § 911.2, 945.4); (2) Government Code sections 815, 815.2, 820.2, 821.6, and 822.2 provide for immunity for the complained of conduct; (3) it is preempted by the Workers Compensation Act; and (4) Bilgin cannot establish a prima facie case because the City did not engage in any outrageous conduct.

As above in section G on pages 19 to 20 and I on page 22, Bilgin’s common law claims, including her claim for intentional infliction of emotional distress, fail as a matter of law because any statement, whether malicious or intentionally false, made by City’s employee’s in the scope of their employment as a prosecutor or otherwise entitles City to immunity under Government Code sections 815.2, 821.6, and 818.8.

For this reason, the court finds that Bilgin does not demonstrate the existence of a triable issue that the City is liable for the tort of intentional infliction of emotional distress and GRANTS summary adjudication on the ninth cause of action. Having granted the motion on this basis, the court need not address the parties’ remaining arguments.

III. Conclusion

For these reasons, the court GRANTS the motion for summary adjudication as to Bilgin’s sixth, eighth, and ninth causes of action for defamation, invasion of privacy, and intentional infliction of emotion distress, DENIES the motion for summary adjudication as to the remaining causes of action, and DENIES summary judgment.


[1] The court will only rule on the objections to evidence that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

[2] Objections 75 and 76 improperly refer to Exhibit Nos. 74 and 75, rather than Exhibit Nos. 73 and 74. The court considers the objections as to the Complaint by Delia Sarmiento, BC710070 (Exh. 73) and the First Amended Complaint by Anthony Koutris, 19STCV26947 (Exh. 74) and overlooks the scriveners error.

[3] The City improperly states that this complaint was filed on August 30, 2017 in its request for judicial notice. The document reflects a filing date of August 30, 2016.

[4] Because City does not break up its motion into discreet issues, the court organizes this motion by cause of action for clarity and ease of analysis.