Case Name: Jacqueline Flippin v. County of Santa Clara, et al.
Case No.: 2013-1-CV-257316

Currently before the Court is the motion by defendants County of Santa Clara (“County”), Irene Lui (“Lui”), and Vinod Sharma (“Sharma”) (collectively, “Defendants”) for summary judgment or, alternatively, summary adjudication.

Factual and Procedural Background

This is an action for discrimination, harassment, and retaliation. Plaintiff Jacqueline Flippin (“Plaintiff”) filed her original complaint against her employer, the County, and co-workers, Lui and Sharma, on December 9, 2013.

Subsequently, on May 24, 2017, Plaintiff filed the operative second amended complaint (“SAC”). Plaintiff alleges that Defendants discriminated against her based on her race, gender, and age, harassed her based on her gender and race, and retaliated against her for engaging in protected activity. (SAC, ¶¶ 16-131.) Defendants’ alleged conduct spanned from 2009 through the date of the filing of the SAC. (Ibid.) Based on these allegations, the SAC alleges causes of action for: (1) violation of California Constitution, article 1, section 2; (2) violation of Labor Code section 1102.5; (3) discrimination based on gender or race in violation of the Fair Employment and Housing Act (“FEHA”); (4) harassment based on gender or race in violation of the FEHA; (5) retaliation in violation of the FEHA; (6) discrimination based on age in violation of the FEHA; (7) failure to maintain a workplace free of discrimination in violation of the FEHA; and (8) failure to investigate complaints of discrimination in violation of the FEHA.

On August 1, 2018, Defendants filed the instant motion for summary judgment or, alternatively, summary adjudication. Plaintiff filed papers in opposition to the motion on October 2, 2018. On October 11, 2018, Defendants filed a reply.

Discussion

Pursuant to Code of Civil Procedure section 437c, Defendants move for summary judgment of the SAC. (Ds’ Ntc. Mtn., pp. 1:20-2:16.) Alternatively, Defendants seek summary adjudication of eight “issues”:

Issue 1: Flippin’s Section 1102.5 Retaliation Claim Is Time Barred

Issue 2: Flippin’s 2010 Retaliation Claim Does Not Support Her FEHA Claim, Is Contrary to Flippin’s Own Admissions, and Is Time Barred

Issue 3: Flippin’s FEHA Retaliation Claim Based On a 2011 Interview in an Unrelated Discrimination Investigation Is Time Barred And Flippin Cannot Establish The Interview Resulted in Retaliatory Acts

Issue 4: Flippin’s Alleged Warning About Inexperienced Consultants Was Not Protected Activity Under FEHA of Section 1102.5

Issue 5: Flippin Cannot Establish a Causal Link Between Her Claims and Any Alleged Retaliation, Discrimination, and/or Harassment

Issue 6: The County Acted Based on Legitimate, Non-Retaliatory, and Non-Discriminatory Reasons

Issue 7: Absent a Viable Retaliation, Discrimination or Harassment Claim, Flippin Cannot Assert a Claim against the County for Failure to Prevent or Investigate Discrimination

[Issue 8:] Flippin Does Not State A Cognizable Claim Under The California Constitution

(Ds’ Ntc. Mtn. pp. 1:20-2:16.)

I. Request for Judicial Notice

Defendants ask the Court to take judicial notice of: excerpts of the County of Santa Clara Charter, Sections 700,701 and 708; County of Santa Clara Ordinance Code, Chapter III, Article 11; and a trial court order filed in the case of Bryant v. County of Santa Clara, et al. (Santa Clara County Superior Court, Case No. 2015-l-CV-278130) on August 25, 2017.

As an initial matter, trial court rulings are not proper subjects of judicial notice as they have no precedential value. (See Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 830–31 [declining to consider a written trial court ruling]; see also San Diego County Employees Retirement Ass’n v. County of San Diego (2007) 151 Cal.App.4th 1163, 1184 [“Retirement Association’s reliance on a 1998 superior court judgment is unhelpful. [Citation.] A trial court judgment cannot properly be cited in support of a legal argument, absent exceptions not applicable here.”]; Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 884–85 [declining to take judicial notice of a written trial court ruling]; Crab Addison, Inc. v. Super. Ct. (2008) 169 Cal.App.4th 958, 963 [same].) Thus, the trial court order filed in the case of Bryant v. County of Santa Clara, et al. (Santa Clara County Superior Court, Case No. 2015-l-CV-278130) is not a proper subject of judicial notice.

Next, the excerpts of the County of Santa Clara Charter and County of Santa Clara Ordinance Code are proper subjects of judicial notice under Evidence Code section 452, subdivision (b). (See Evid. Code, § 452, subd. (b) [courts may take judicial notice of “[r]egulations and legislative enactments issued by . . . any public entity in the United States”]; see also City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1077 fn.5 [taking judicial notice of city ordinance].)

Accordingly, Defendants’ request for judicial notice is DENIED IN PART and GRANTED IN PART. The request is DENIED as to the trial court order. The request is GRANTED as to the excerpts of the County of Santa Clara Charter and County of Santa Clara Ordinance Code.

II. Objections by the Parties

A. Plaintiff’s Objections

In connection with her opposition, Plaintiff submits objections to various evidence offered by Defendants in support of their motion.

Plaintiff’s evidentiary objections do not comply with California Rules of Court, rule 3.1354. Rather than submit two separate documents as required by the rule—one setting forth the objections and another setting forth a proposed order—Plaintiff submitted a single packet of objections signed by counsel, with blanks apparently for the Court to indicate its rulings, but with no place for the Court to sign. (See Cal. Rules of Ct., rule 3.1354(b) [a party must provide written objections that comply with one of the formats described in the rule] (c) [a party must provide a proposed order that complies with one of the formats described in the rule].) This hybrid document does not comply with California Rule of Court, rule 3.1354.

Because Plaintiff’s evidentiary objections do not comply with the California Rules of Court, the Court declines to rule on the objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 (Vineyard) [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 (Hodjat) [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

B. Defendants’ Objections

In connection with their reply papers, Defendants submit objections to Plaintiff’s responsive separate statement of undisputed material facts. Defendants also submit objections to various evidence offered by Plaintiff in support of her opposition to the motion.
First, the objections to Plaintiff’s responsive separate statement of undisputed material facts are improper because they are not directed to specific evidence proffered in support of the purported undisputed material facts. (See Cal. Rules of Ct., rule 3.1354 [providing that objections are to be directed at specific evidence].) Furthermore, Defendants do not cite any legal authority providing that the Court should disregard Plaintiff’s responsive separate statement due to the purported defects identified by Defendants. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-85 (Badie); see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaeffer) [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Next, Defendants’ evidentiary objections do not comply with California Rules of Court, rule 3.1354. Rather than submit two separate documents as required by the rule—one setting forth the objections and another setting forth a proposed order—Defendants submitted a single packet of objections signed by counsel, with blanks apparently for the Court to indicate its rulings, but with no place for the Court to sign. (See Cal. Rules of Ct., rule 3.1354(b) [a party must provide written objections that comply with one of the formats described in the rule] (c) [a party must provide a proposed order that complies with one of the formats described in the rule].) This hybrid document does not comply with California Rule of Court, rule 3.1354.

Because Defendants’ objections do not comply with the California Rules of Court, the Court declines to rule on the objections. (See Vineyard, supra, 120 Cal.App.4th at p. 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat, supra, 211 Cal.App.4th at p. 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

III. Legal Standard on Motions for Summary Judgment or Adjudication

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a).) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted.)

“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] §
437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005)
132 Cal.App.4th 458, 464 (Hartline).)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment or adjudication “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-18.)

IV. Motion for Summary Judgment

“Summary judgment is proper only if it disposes of the entire lawsuit.” (All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954 (All Towing); see Lopez v. Super. Ct. (1996) 45 Cal.App.4th 705, 713-14 [a defendant moving for summary judgment must negate each theory of liability alleged in the complaint]; see also Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228 [“If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. ‘The moving defendant whose declarations omit facts as to any such theory … permits that portion of the complaint to be unchallenged.’ ”].)

Here, the arguments raised by Defendants in their motion for summary judgment do not dispose of the SAC in its entirety. For example, Defendants’ motion does not dispose of the second cause of action for violations of Labor Code section 1102.5.

Plaintiff’s second cause of action alleges violations of Labor Code section 1102.5 subdivisions (a), (b), and (c). Those subdivisions prohibit: (a) making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation; (b) retaliation against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation; and (c) retaliation against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. (Lab. Code, § 1102.5, subds. (a)-(c).)

Plaintiff alleges that Defendants engaged in a wide variety of conduct from 2009 through the date of the filing of the SAC (May 24, 2017), which violated Labor Code section 1102.5, subdivisions (a), (b), and (c). (SAC, ¶¶ 16, 48-50, 126-131.)

In their motion, Defendants initially argue that the second cause of action is “time barred because [Plaintiff] failed to present a government claim to the County within six months of the accrual of the claim.” (Ds’ Mem. Ps. & As., p. 14:16-17.) However, Defendants fail to adequately explain when Plaintiff’s claim accrued. Defendants merely state that Plaintiff “did not present a claim to the County until November 6, 2014” and, “[a]s a result, [Plaintiff’s] Section 1102.5 claim is time barred because it accrued before May 6, 2014.” (Id. at p. 15:1-4.) Defendants do not present any reasoned argument or legal authority supporting their conclusory statement that Plaintiff’s claim for violations of Labor Code section 1102.5 accrued before May 6, 2014. (See Badie, supra, 67 Cal.App.4th at pp. 784-85; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Thus, this argument lacks merit.

Defendants further argue that “the statute of limitations on [Plaintiff’s] Section 1102.5 claim undoubtedly began to run no later than the December 10, 2013 filing of this lawsuit, when [Plaintiff] had abandoned any effort to resolve her claims other than through litigation.” (Ds’ Mem. Ps. & As., p. 15:22-24.) In support of this argument, Defendants cite cases discussing the statute of limitations for retaliation and discrimination claims brought under the FEHA. (Id. at p. 16:22-27, citing Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 [discussing the statute of limitations for a claim for retaliation in violation of the provisions of Government Code section 12940, subdivision (h)] and Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 [discussing the statute of limitations for a claim for disability discrimination and harassment under the FEHA].) Defendants’ argument is not well-taken. First, Defendants do not establish that the authority cited in support of their argument is applicable here. The second cause of action is not brought under the FEHA. Rather, the claim is for a violation of Labor Code section 1102.5. Defendants’ legal authorities do not discuss the statute of limitations applicable to claims for violations of Labor Code section 1102.5. Additionally, Defendants do not present any reasoned argument or legal authority demonstrating that the statute of limitations for FEHA claims and Labor Code violation claims is one and the same. Second, Defendants do not cite any undisputed material facts or evidence supporting their contention that “[Plaintiff] had abandoned any effort to resolve her claims other than through litigation” as of the date of the filing of her original complaint. Defendants do not present any reasoned argument or legal authority establishing that the filing of a complaint, in and of itself, means that “[Plaintiff] had abandoned any effort to resolve her claims other than through litigation.” (See Badie, supra, 67 Cal.App.4th at pp. 784-85; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) For these reasons, Defendants’ argument lacks merit.

Next, Defendants argue that “[t]he alleged retaliatory acts against [Plaintiff] occurring after December 2013 do not support her Section 1102.5 claim … .” (Ds’ Mem. Ps. & As., p. 16:6:8.) The second cause of action is based on numerous alleged acts of retaliation. (SAC, ¶¶ 16-131.) Defendants do not cite to portions of the SAC or interrogatory responses purporting to identify all of the alleged retaliatory acts occurring after December 2013, that form the basis of the second cause of action. Defendants only specifically discuss Plaintiff’s allegations that inferior candidates were promoted over her, she performed the duties of the Investment Officer without being given the title of Acting Investment Officer, and the County re-organized the Finance Agency. (Ds’ Mem. Ps. & As., pp. 16:6-17:10.) Defendants do not present argument or evidence showing that those allegations are the only allegations of retaliatory acts occurring after December 2013. Notably, Plaintiff also alleges that retaliatory acts against her as of the time of the filing of the SAC include, among other things, ostracizing and ignoring her in the workplace, excluding her from decisions within the scope of her work duties, and attempting to coerce false or fabricated evidence to present in this action. (SAC, ¶¶ 16-131.) Defendants do not specifically address these, and other, allegations of retaliatory conduct. Thus, Defendants’ argument lacks merit.

Lastly, Defendants argue that allegations about retaliation for Plaintiff’s statements regarding the competency of contractors and inexperienced consultants working on a software implementation project cannot form the basis of the second cause of action. As indicated above, these allegations do not form the only basis of the claim. Thus, even if Defendants’ argument was well-taken, it does not dispose of the claim as a whole.

In light of the foregoing, Defendants do not meet their initial burden with respect to the second cause of action. Consequently, Defendants are not entitled to summary judgment of the SAC. (See All Towing, supra, 220 Cal.App.4th at p. 954.)

Accordingly, Defendants’ motion for summary judgment is DENIED.

V. Alternative Motion for Summary Adjudication

As a threshold matter, Defendants’ alternative motion for summary adjudication is procedurally improper. As previously stated, Defendants move for summary adjudication of eight “issues.”

Generally, a party may only move for summary adjudication as to the following:
[O]ne or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

(Code Civ. Proc., § 437c, subd. (f)(1).)

As framed, Defendants’ motion does not seek summary adjudication of one or more of the causes of action alleged in the SAC, an affirmative defense, or a claim for damages as specified in Civil Code section 3294. Rather, Defendants seek to summarily adjudicate eight “issues.” Summary adjudication of general “issues” is prohibited. (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1136.) Only issues of duty may be disposed of under section 437c, subdivision (f). (See Code Civ. Proc., § 437, subd. (f)(1) [“[a] party may move for summary adjudication as to … one or more issues of duty, if that party contends … that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”]; see also Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal.App.4th 226, 244.) For example, this may apply in the insurance context where there is a duty to defend or duty to indemnify or negligence claims where a duty of care is at issue. In addition, at least one appellate court has held that “an issue of duty” as used in the summary adjudication rule includes duties under contracts. (See Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508.) Here, the eight issues of which Defendants seek summary adjudication are not issues of duty.

Consequently, the issues identified in the notice of motion, as framed by Defendants, are not proper subjects for summary adjudication absent compliance with the procedures set forth in subdivision (t) of Code of Civil Procedure section 437c. Under subdivision (t), a party may move for summary adjudication of a legal issue or a claim for damages (other than punitive damages), if the following requirements are met before the filing of the motion:

• the parties stipulate that such a motion may be brought;
• the parties each file a declaration justifying the filing of the motion on the ground “that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement”; and
• the court determines that the motion may be filed.

(Code Civ. Proc., § 437c, subd. (t)(1)- (2).) None of the foregoing actions occurred here and, therefore, Defendants are not entitled to summary adjudication of the eight issues set forth in their notice of motion.

The second, third, fourth, and fifth issues cannot be reframed as proper subjects of a motion for summary adjudication. Accordingly, Defendants’ motion for summary adjudication of those issues is DENIED.

The only issues that can be reframed as proper subjects of a motion for summary adjudication are the first, sixth, seventh, and eighth issues. The first issue—“Flippin’s Section 1102.5 Retaliation Claim Is Time Barred”—can be reframed as a motion for summary adjudication of the second cause of action for violation of Labor Code section 1102.5 on the ground that the claim is time-barred. Next, the sixth issue—“The County Acted Based on Legitimate, Non-Retaliatory, and Non-Discriminatory Reasons”—can be reframed as a motion for summary adjudication of the third, fifth, and sixth causes of action for discrimination and retaliation in violation of the FEHA on the ground that the County had legitimate, non-retaliatory, and non-discriminatory reasons for its conduct. The seventh issue—“Absent a Viable Retaliation, Discrimination or Harassment Claim, Flippin Cannot Assert a Claim against the County for Failure to Prevent or Investigate Discrimination”—can be reframed as a motion for summary adjudication of the seventh and eighth causes of action for failure to maintain a workplace free of discrimination and investigate complaints of discrimination on the ground that there is no viable claim for discrimination, harassment, or retaliation. Lastly, the eighth issue—“Flippin Does Not State A Cognizable Claim Under The California Constitution”—can be reframed as a motion for summary adjudication of the first cause of action on the ground that it does not state a legally cognizable claim as a matter of law.

Each of these issues as reframed is addressed below.

A. Summary Adjudication of the Second Cause of Action for Violation of Labor Code Section 1102.5 on the Ground that the Claim is Time- Barred

Defendants seek summary adjudication of the second cause of action for violation of Labor Code section 1102.5 on the ground that the claim is time-barred. For the reasons articulated above in connection with Defendants’ motion for summary judgment, Defendants’ arguments lack merit and Defendants fail to meet their initial burden with respect to this claim.

Accordingly, Defendants’ motion for summary adjudication of the second cause of action is DENIED.

B. Summary Adjudication of the Third, Fifth, and Sixth Causes of Action for Discrimination and Retaliation in Violation of the FEHA on the Ground that the County had Legitimate, Non-Retaliatory, and Non-Discriminatory Reasons for its Conduct

Defendants seek summary adjudication of the third, fifth, and sixth causes of action for discrimination and retaliation in violation of the FEHA on the ground that the County had legitimate, non-retaliatory, and non-discriminatory reasons for the alleged adverse employment actions that form the basis of the claims. (Ds’ Mem. Ps. & As., pp. 26:6-29:6.) In their motion, Defendants identify and discuss several alleged adverse employment decisions such as the August 2011 meeting, Plaintiff’s demotion and removal from her position in 2012, hiring someone other than Plaintiff for the permanent Investment Officer position, and relocating Plaintiff’s office. (Ibid.)

As is relevant here, Defendants also indicate that the hiring of a new Debt Management Officer, other than Plaintiff, is one of the alleged adverse employment actions that underlie the FEHA claims for discrimination and retaliation. (Ds’ Mem. Ps. & As., p. 27:27-28.) Specifically, Plaintiff alleges in the SAC that she was not considered for the position of Debt Officer. (SAC, ¶¶ 89, 133-139, 149-168.) However, Defendants do not attempt to demonstrate that they had a legitimate, non-discriminatory, and non-retaliatory reason for this alleged adverse employment action. (See Ds’ Mem. Ps. & As., pp. 26:6-29:6.) Thus, Defendants’ argument does not dispose of the third, fifth, and sixth causes of action in their entirety. (See Hartline, supra, 132 Cal.App.4th at p. 464 [summary adjudication is properly granted only if a motion completely disposes of a claim as a whole].)

Accordingly, the motion for summary adjudication of the third, fifth, and sixth causes of action is DENIED.

C. Summary Adjudication of the Seventh and Eighth Causes of Action for Failure to Maintain a Workplace Free of Discrimination and Investigate Complaints of Discrimination on the Ground that There is No Viable Claim for Discrimination, Harassment, or Retaliation

Defendants seek summary adjudication of the seventh and eighth causes of action for failure to maintain a workplace free of discrimination and investigate complaints of discrimination on the ground that there is no viable underlying claim for discrimination, harassment, or retaliation in violation of the FEHA.

Because Defendants’ motion fails to dispose of the third through sixth causes of action for discrimination, harassment, or retaliation in violation of the FEHA, Defendants’ argument lacks merit.

Accordingly, Defendants’ motion for summary adjudication of the seventh and eighth causes of action is DENIED.

D. Summary Adjudication of the First Cause of Action on the Ground that it Does Not State a Legally Cognizable Claim as a Matter of Law

Defendants seek summary adjudication of the first cause of action for violation of the California Constitution, article 1, section 2, on the ground that the claim does not state a legally cognizable cause of action as a matter of law. As is relevant here, Defendants argue that even if Plaintiff’s alleged conduct constitutes protected free speech, article 1, section 2 of the California Constitution does not provide for a private right of action for the monetary and injunctive relief that Plaintiff seeks.

In the first cause of action, Plaintiff seeks to recover monetary damages as a result of Defendants’ alleged discrimination, harassment, and retaliation against her for engaging in free speech. (SAC, ¶¶ 121-124 and Prayer for Relief.) Plaintiff also seeks injunctive relief in the form of reinstatement to the position of County Investment Officer or an equivalent position. (SAC, Prayer for Relief.)

Article 1, section 2(a) of the California Constitution also does not provide a private right of action for monetary damages under the facts alleged here. (See Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 391 [“There is no cause of action for damages for alleged violations of California Constitution, article I, section 2, subdivision (a) (freedom of speech) … when such an action is not tied to an established common law or statutory action … .”].)

The decision in McAllister v. Los Angeles Unified Sch. Dist. (2013) 216 Cal.App.4th 1198 (McAllister) accurately summarizes current California law. McAllister notes that the California Supreme Court, in its companion decisions in Katzberg v. Regents of the University of California (2002) 29 Cal. 4th 300 (Katzberg) and Degrassi v. Cook (2002) 29 Cal. 4th 333 (Degrassi), set forth the applicable analysis:

The Degrassi court undertook a two-step procedure in concluding that Constitution, section 2(a) did not create a private right of action for damages in that case. First, the court analyzed whether the language or legislative history of the provision disclosed an intent to include a damages remedy. After undergoing this analysis, the high court concluded, ‘there is no indication in the language of article I, section 2(a), nor any evidence in the history of that provision, from which we may find, within that provision, an implied right to seek damages for a violation of the free speech right set out therein. However, this analysis did not end the inquiry. The high court then proceeded to consider “ ‘whether a constitutional tort action for damages to remedy the asserted constitutional violation should be recognized.’ “ Applying the factors set forth in Katzberg, the court declined to recognize such a remedy for the asserted violation alleged in the case before it. The Katzberg factors are (1) the adequacy of existing remedies; (2) the extent to which a constitutional tort action would change established tort law; (3) the nature of the provision and the significance of the purpose that it seeks to effectuate; and (4) whether the creation of a damages action might produce adverse policy consequences or practical problems of proof.”

(McAllister, supra, 216 Cal.App.4th at pp. 1214-1215, internal citations omitted.)

Applying the Katzberg factors to Plaintiff’s allegations, the first fact weighs against recognizing a private right of action. The FEHA is an adequate existing statutory remedy expressly provided to address precisely what Plaintiff alleges occurred—discrimination, harassment, and retaliation by an employer against an employee for exercising her rights related to protected activity. Additionally, as was the case in McAllister, the second Katzberg factor also weighs against recognizing any private right of action under Article 1, section 2: “As set forth in Degrassi, California tort law does not support recognition of a constitutional tort action for damages under this provision. Thus, recognition of a constitutional tort action would significantly change established tort law.” (McAllister, supra, 216 Cal.App.4th at p. 1215, internal citation omitted.) These two factors are dispositive here as the remaining factors are not given great significance. (See Katzberg, supra, 29 Cal.4th at p. 328.)

Furthermore, the injunctive relief that Plaintiff seeks—reinstatement—is not available under article 1, section 2 of the California Constitution. Generally, injunctive relief is available under article 1, section 2 of the California Constitution. (See Degrassi, supra, 29 Cal. 4th at p. 338; see also McAllister, supra, 216 Cal.App.4th at p. 1216.) However, courts have declined to find that the California Constitution, article 1, section 2 supports the imposition of an employment-related injunction. (McAllister, supra, 216 Cal.App.4th at pp. 1216-1217.) In McAllister, the court pointed out that the constitutional provision at issue makes no mention of employment or an individual’s right to employment or rehiring. (Ibid.) “The provision at issue reads: ‘Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.’ ” (Ibid.)

Like the defendants in McAllister, there is no allegation that Defendants literally curtailed Plaintiff’s free speech, prevented her from speaking freely, or, in any way, prevented her from publishing her sentiments. Similarly, there is no allegation that Defendants passed a law or adopted some type of policy restraining or abridging speech. “It is these types of activities which the language of the Constitution, section 2(a) targets, and thus it is these types of activities which would likely be candidates for injunctive relief under this provision.” (McAllister, supra, 216 Cal.App.4th at p. 1217.) The constitutional provision at issue here cannot be read to support a cause of action for injunctive relief where an individual is seeking to be reinstated to a position by her employer. (See ibid. [“The Constitution, section 2(a) cannot be read to support a cause of action for injunctive relief where an individual is seeking to be rehired by her employer.”].)

Absent specific precedent that the California Constitution, article 1, section 2 supports a cause of action for such an employment-related injunction, the Court declines to create authority for such an action.
In light of the foregoing, Defendants meet their initial burden on summary adjudication with respect to the first cause of action.

In opposition, Plaintiff does not raise a triable issue of material fact. Plaintiff does not present any reasoned argument or legal authority in her papers demonstrating that the constitutional provision at issue here provides a private right of action for the monetary and injunctive relief sought in this case. Instead, Plaintiff contends that the motion as to the first cause of action is fatally flawed because Defendants’ separate statement does not set forth any undisputed material facts with respect to the first cause of action. This contention is not well-taken. Defendants’ argument only addresses the legal sufficiency of the allegations of the first cause of action. Because the argument is based solely on the allegations of the SAC, Defendant did not need to establish that a particular material fact was undisputed. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118 [a defendant’s motion for summary judgment or summary adjudication necessarily includes a test of the sufficiency of the complaint and its legal effect is the same as a demurrer or motion for judgment on the pleadings].)

Accordingly, Defendants’ motion for summary adjudication of the first cause of action is GRANTED.