2017-00207211-CU-CR

Gabriel Ullrich vs. Michelle Angus

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Sarno, Cori R.

Defendants Michelle Angus, et al.’s motion for judgment on the pleading is ruled upon as follows.

In this action, self-represented Plaintiff Gabriel Ulrich alleges a single unlabeled “claim for relief” in connection with allegations regarding his position as an attorney in the Correctional Law Section at the Department of Justice. He alleges that Defendants who were in his supervisory chain of command created false probationary reports indicating termination was imminent in retaliation for his raising concerns that he was given unnecessary work and being unnecessarily micromanaged and that taxpayer dollars were being wasted. He also claims that he raised numerous litigation strategy questions and raised issues regarding unethical, improper and unlawful conduct. He alleges that he was essentially forced to resign prior to the end of his probationary period. Plaintiff’s single claim for relief alleges that Defendants’ violated the state constitutional right to free speech, due process, Government Code § 8547, negligence, etc. (Comp. ¶ 18.) He alleges that he was constructively discharged, that he did not formally submit a resignation but if he did it was coerced. (Id. ¶ 17.)

The Legislature enacted the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.) to protect the right of state employees “to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution.” (§

8547.1.) In adopting the Act, the Legislature expressly found “that public servants best serve the citizenry when they can be candid and honest without reservation in conducting the people’s business.” (Ibid.) Therefore, the Act authorizes a state employee who is the victim of whistleblower retaliation to bring “an action for damages” in superior court (§ 8547.8, subd. (c); and to recover, if appropriate, punitive damages and attorney fees (ibid.). Section 8547.1 provides that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution. Prior to January 1, 2010, “employee” was defined as any

individual appointed by the Governor or employed or holding office in a state agency as defined by Government Code section 11000. (Former Gov. Code, § 8547.2, subd. (a)).

Although the Gov. Code sec. 8547.2 was amended effective 2010 to include former employees, no indication that the Legislature intended that amendment to be retroactive is shown. The silence of the enactment is an authoritative indication that the Legislature intended it to have prospective application only. Nelson v. A. H. Robins Co. (1983) 149 Cal. App. 3d 862, 870.

A defendant may move for judgment on the pleadings if the complaint does not state facts sufficient to constitute a cause of action against that defendant. (See Code Civ. Proc. §438(b)(l), (c)(l)(B)(ii).) Except as provided by statute, a motion for judgment on the pleadings is analyzed like a general demurrer. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Thus, on a motion for judgment on the pleadings, the Court may extend consideration to matters that are subject to judicial notice; in doing so, the Court performs essentially the same task as ruling on a general demurrer. (Smiley v. Citibank (1995) 11 C.4th 138, 146.)

Here, because the complaint alleges only a single “claim for relief” although referring to a number of legal theories, Defendants move for judgment on the pleadings as to the potential causes of action that could be read into the complaint. That is, they have interpreted the single cause of action as potentially setting forth numerous causes of action based on the numerous references to the state constitutional right to free speech, due process, Government Code § 8547, negligent, etc. within the single “claim for relief”. This is proper. Defendants may properly seek judgment on the pleadings as to the separate claims set forth in the single “claim for relief” cause of action. ( Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854.)

Civil Code § 47

Defendants first argue that any claim that is raised in the complaint is barred by the absolute litigation privilege in Civil Code § 47(b). Civil Code § 47(b) bars a civil action for damages for communications made “in any other official proceeding authorized by law.” (Civ. Code § 47(b)(2), (3).) The privilege is absolute and applies regardless of whether the communication was made with malice or the intent to harm. (Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1302.)

To that end they argue that the rejection of a probationary public employee is a proceeding authorized by law given the statutory provisions in the Government Code governing probationary public employees. (Gov’t. Code §§ 19171-19173.). For example, Government Code section 19173 states that any probationer may be rejected by the appointing power during the probationary period for reasons relating to the probationer’s qualifications, the good of the service, or failure to demonstrate merit. Defendants cite to case law finding that a hospital’s peer review procedures, which are required by statute, are a “proceeding authorized by law” in addition to case law finding that the University of California’s grievance procedures are also a “proceeding authorized by law.” (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 198; Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1396.)

Plaintiff argues that since Defendants failed to set forth Civil Code § 47(b) as an affirmative defense in their answer that they cannot rely upon it. The Court need not

resolve this issue as the Court finds that Defendants have failed to demonstrate that Civil Code § 47(b) precludes all theories encompassed in the complaint, to wit, the claim that Defendants violated Government Code § 8547 by retaliating against him for making complaints regarding their alleged unethical and improper conduct.

Here the Court agrees that Civil Code § 47(b) does not apply to bar Plaintiff’s retaliatory whistleblower claim under Government Code § 8547 on the facts as alleged in the complaint. Indeed, as will be discussed in more detail, the very case cited by Defendants for the proposition that a plaintiff cannot escape the privilege by labeling communications as retaliatory actually supports Plaintiff and not Defendants. (Brown v. Department of Corrections (2005) 132 Cal.App.4th 520, 527.) “The courts have concluded the litigation privilege does not bar an action filed under a more specific statute when the application of the privilege would render the specific provision ‘significantly or wholly inoperable.’” (People ex rel. Alzayat v. Hebb (2017) 18 Cal.App.5th 801, 808.) For example, § 47 has been found not to apply to claims under the Fair Debt Collections Practices Act based on the contention that the defendant filed actions which improperly contained personal information of debtors. (People v. Persolve, LLC (2013) 218 Cal.App.4th 1267.) The Court concluded that FDCPA was more specific that Civil Code § 47 and that applying the litigation privilege to specific violations of the FDCPA would effectively render the protections afforded by the FDCPA. A similar result was reached in Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323 where it was found that the litigation privilege would not apply to retaliatory eviction suits under Civil Code § 1942.5 again because even if eviction proceedings were conduct that fell within the scope of the litigation privilege, § 1942.5 was more specific and application of the litigation privilege would “effectively immunize conduct that [section 1942.5] prohibits.” (Id. at 332.)

As noted above, but it bears repeating here, the purpose of the Whistleblower Protection Act is to ensure that state employees are “free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of

retribution.” (Gov’t. Code § 8547.1.) Government Code § 8547.8(c) provides that any person who engages in certain retaliatory acts against “a state employee or applicant for state employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party.” According to Defendants, since public employee probation is governed by statute, statements made in any probation reports would be pursuant to a “proceeding authorized by law.” However, the WPA is a more specific statute governing conduct in a specific circumstance. In addition, application of the litigation privilege to this WPA cause of action as pled in the complaint would “effectively immunize conduct that [the WPA] prohibits.” (Banuelos, supra, 219 Cal.App.4th at 332.) Indeed, if Defendants were correct, then essentially any time that a public employer took retaliatory personnel action against an employee during a probationary period, the employer would have no liability. The case cited by Defendants where the privilege was applied to a WPA cause of action is inapposite and involves facts not alleged here, which made clear that there was no conflict between applying the privilege and the WPA. (Brown, supra, 132 Cal.App.4th at 527.) In that case the defendant reported a plaintiff’s criminal threats to the police. Our Third District Court made clear that there was no conflict because the defendants there did not retaliate against the employee for “blowing the whistle about supervisorial misbehavior, but for making apparent criminal threats of violence against the supervisors, threats whose seriousness was documented in the allegations of Brown’s complaint and in matters judicially noticed without dispute. (Id. at 528.) The Third District Court explicitly noted the distinction between retaliation

based on complaint regarding supervisorial misbehavior, which is what Plaintiff is alleging here, and retaliation for reporting criminal threats, which is not the case here. Brown therefore assists Plaintiff’s stated argument, not Defendants.

In reply Defendants argue that application of the litigation privilege would not eviscerate the protections set forth in the WPA. To that end they argue that Plaintiff only alleged that Defendants engaged in a creation of “pretextual, retaliatory, fraudulent, materially misleading and erroneous probation reports.” (Comp. ¶ 10.) They argue that Brown made clear that the determination of the privilege in the context of the WPA must focus on the nature of the alleged acts of retaliation. They again that these probation reports were made in connection with the probation process which is governed by statute and thus the privilege applies. But again, Brown actually runs counter to any argument that the privilege should be applied here. As discussed above, Brown found that the defendants did not report on or retaliate against the state employee for blowing the whistle about supervisorial misconduct but instead for making criminal threats. In that circumstance there was no conflict between Civil Code

§ 47 and the WPA. Again, here it is alleged that Defendants retaliated against Plaintiff for reporting supervisorial misconduct by creating the subject probation reports. Indeed, Brown, itself contrasted the situation regarding reporting criminal threats from the situation where the whistleblower as allegedly retaliated against for reporting misconduct. To that end, it cited to Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 which involved a plaintiff’s whistleblower claim under the former but similar WPA where the employee claimed a retaliatory termination for whistleblowing by way of an administrative proceeding. Brown noted that the coverage of an immunity statute and the whistleblower statute, where, as in Shoemaker, “public employees [and their employers] [were] accused of using official authority to ‘discourage, restrain, interfere with, coerce and discriminate against’ [a whistleblowing] public employee by means of a judicial or administrative proceeding.” (Brown, supra, 132 Cal.App.4th at 528 [citing Shoemaker, supra, 2 Cal.App.4th at 1423].) Where an immunity statute conflicts with the whistleblower statute, the whistleblower statute prevails. (Id.) This is the case here.

Again, the WPA prohibits retaliation against state employees who “report waste, fraud, abuse of authority, violation of law, or threat to public health.” (Gov’t Code § 8547.1). Plaintiff here has specifically alleged that he raised complaints of waste of resources and that Defendants retaliated against him for doing so by creating false probation reports. In this circumstance Civil Code § 47 and the WPA directly conflict. Given that the WPA is narrower in purpose, it prevails over Civil Code § 47.

Defendants’ argument in reply that the WPA shows that the Legislature did not intend to abrogate Civil Code § 47 with respect to the WPA is not persuasive. Indeed, to that end they cite to Government Code § 8547.8(f) which provides that “[n]othing in this article shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or state law or under any employment contract or collective bargaining agreement.” This has no application to Defendants. This provision relates to the employee who is the subject of the alleged retaliation, not employees alleged to have retaliated against the employee.

In short the Court finds that based on the allegations of the complaint, the litigation privilege does not apply. Plaintiff raises a claim for retaliation under the WPA which is a more specific statute that Civil Code § 47. Further, application of the privilege based on the specific facts here, that is that Plaintiff was retaliated against for complaining

about the misconduct of his supervisors, would render the WPA meaningless.

The Court need not reach Plaintiff’s other arguments in opposition as to why the litigation privilege is inapplicable.

The motion for judgment on the pleadings the entire FAC on the basis that it is barred by the litigation privilege is denied.

Other Claims

To the extent that the first cause of action sets forth a cause of action for violation of the right to free speech and the due process clause, negligence, negligent supervision, training, retention and hiring, the motion is granted for the reasons stated in the moving papers. Plaintiff did not address these arguments in his opposition and the Court construes Plaintiff’s silence as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].)

To the extent that the first cause of action sets forth a claim based on a liberty interest under the California Constitution, the motion is granted. While Plaintiff does address this point in the opposition, he only does so on the basis that Defendants incorrectly argue that he was not a permanent employee. However, Defendants first argued that there was no private right of action for damages for deprivation of a liberty interest. ( Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 329.) Plaintiff presented no contrary argument.

In short, the motion is denied as to the entire FAC on the basis that it is barred by the litigation privilege. However, it is granted to the extent that Plaintiff attempted to set forth cause(s) of action for violation of the right to free speech and the due process clause, negligence, negligent supervision, training, retention and hiring, and/or claim based on a liberty interest under the California Constitution.

Leave to amend was not requested and is not given.