Filed 7/2/20 Reaves v. County of L.A. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GALE REAVES,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent.

B287987

(Los Angeles County

Super. Ct. No. BC631171)

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara A. Meiers, Judge. Affirmed.

Law Offices of Akudinobi & Ikonte, Emmanuel C. Akudinobi, and Chijioke O. Ikonte for Plaintiff and Appellant.

Gutierrez, Preciado & House and Calvin House for Defendant and Respondent.

_______________________

Gale Reaves, a former deputy probation officer, filed suit against her employer, the County of Los Angeles (County), for retaliation in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et al.). Reaves contends the trial court erred in granting its own motion for judgment on the pleadings based on claim or issue preclusion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Reaves’s 2012 Case
B.
1. Allegations in the complaint
2.
On July 25, 2012 Reaves, who is Black, filed a complaint against the County and individual defendants Marina Rojas, Andrea Washington, and La Carla Williams alleging causes of action against the County for race discrimination and retaliation in violation of FEHA and against all defendants for conspiracy to interfere with her civil rights under title 42 United States Code sections 1983 and 1985(3). (Reaves v. County of Los Angeles Probation Dept. (Super. Ct. L.A. County, No. BC489065); first action). After the trial court sustained the demurrer filed by the individual defendants to the conspiracy causes of action without leave to amend, Reaves filed her operative second amended complaint against the County on July 10, 2013. Reaves alleged five causes of action for race and sex discrimination and retaliation in violation of FEHA and title 42 United States Code section 1981.

Reaves alleged as to her retaliation claim, “On or about June 14, 2010, [Reaves] engaged in a protected activity by complaining to Chief [Deputy Probation Officer] Blevins that Marina Rojas discriminated against her. On or about October 2010, [Reaves] engaged in another protected activity when she complained to the County office of affirmative action compliance that Marina Rojas was discriminating and retaliating against her. [¶] Following the first complaint Rojas threatened to get even with [Reaves]. She told her to expect more complaints from probationers. [Reaves] is informed and believes and thereon alleges that Rojas made good on her threat because shortly after her threat she started getting numerous complaints from her probationers. Shortly after [Reaves’s] second complaint, she was transferred away from her unit to another unit and was denied the training needed to function effectively in the new unit. [Reaves] is informed and believes and thereon alleges that her transfer and the subsequent denial of the training needed to effectively do her job were in retaliation for her complaints.” Reaves alleged she was suspended for 10 days in February 2011 and again for 10 days in October 2011 as a result of the probationers’ complaints, was given a negative performance evaluation, and was denied longevity pay. Reaves alleged these actions were “causally related to her protected activities.”

Reaves alleged she suffered further retaliation after she filed discrimination complaints with the Department of Fair Employment and Housing (DFEH) on July 27, 2011 and the Equal Employment Opportunity Commission on November 17, 2011 and was issued right-to-sue letters. Reaves alleged, “Starting from December 2011 to the present, [Reaves has] been treated differently at her place of employment by being falsely accused of loitering while her co-workers like DPO [(Deputy Probation Officer)] Jeffrey Keches, male Caucasian[,] and others are not subjected to the same treatment. [¶] Additionally, in January 2011, [Reaves] was threatened by DPO Keches in violation of the violence free work environment. When she complained nothing came of it. On July 18, 2012, DPO Keches violated the County time policy by signing in another employee who was not yet on duty. [Reaves] once again complained[;] nothing came of it.” Reaves was given another negative performance evaluation in June 2012, then in July 2012 she was reprimanded for wearing denim pants although the male deputy probation officers were allowed to wear chinos, which were similar to what she was wearing.

Reaves alleged probationers were recruited in 2012 to continue to file complaints against her to support her suspension and ultimate termination. As a result of the probationers’ complaints, Reaves received a 30-day suspension in December 2012, and in May 2013 Reaves was denied the opportunity to bid for an opening in the narcotics unit despite her qualifications. In June 2013 Reaves was given another negative evaluation “as part of the ongoing scheme to get her terminated.”

3. Trial court’s grant of the County’s motion for summary judgment
4.
On April 10, 2014 the trial court granted the County’s motion for summary judgment after striking Reaves’s late-filed opposition brief and supporting documents. After reviewing Reaves’s interrogatory responses submitted by the County, the court found Reaves had not shown the County’s disciplinary actions were motivated by race. The court also found Reaves did not present a prima facie case of retaliation. As to both claims, the court found the County provided sufficient evidence of legitimate reasons for its disciplinary actions based on the probationers’ numerous complaints about Reaves’s conduct. The court also found Reaves had not presented evidence to establish the County’s reasons were pretextual because the court had stricken Reaves’s opposition papers. The court found Reaves’s claim for sex discrimination lacked merit because she was only prohibited from wearing jeans, not pants.

5. Reaves’s Appeal
6.
On December 14, 2015 we affirmed the trial court’s grant of the County’s summary judgment motion, but we reversed the court’s earlier dismissal of the individual defendants and directed the trial court to grant Reaves leave to amend her complaint to state conspiracy claims against the individual defendants. (Reaves v. County of Los Angeles (Dec. 14, 2015, B255920) [nonpub. opn.] (Reaves I).)

C. Reaves’s 2016 Case
D.
1. Allegations in the complaint
2.
On August 23, 2016 Reaves filed this action against the County alleging causes of action for constructive wrongful termination in violation of public policy and retaliation in violation of FEHA (Reaves v. County of Los Angeles Probation Dept. (Super. Ct. L.A. County, 2018, No. BC631171); second action). On January 30, 2017 Reaves filed her first amended complaint asserting only a cause of action for retaliation.

As in the first action, Reaves alleged supervisors Rojas and Washington retaliated against her after she filed a complaint with Chief Blevins in April 2010. In addition, after Reaves filed complaints against Rojas and Washington in October 2010, Rojas and Washington retaliated against Reaves by soliciting probationers to file more complaints against her, and they issued her a letter of reprimand for the earlier complaints and a notice of intent to suspend her. Reaves repeated her other allegations from the first action, including that she did not receive retraining upon her transfer to the narcotics unit, she was suspended for 10 days on January 19, 2011, and she was given a notice of a 10-day suspension after she filed a discrimination and retaliation complaint with the DFEH in 2011. Reaves also included her previous allegations that other deputy probation officers were treated more favorably than her in 2011 and 2012, she was denied an opportunity to bid for a position in the narcotics testing unit in May 2013, and she received a negative evaluation in June 2013 in an effort to build a case for her termination.

Reaves included new allegations about conduct in 2014. In January 2014 the County conducted an investigation of Reaves “for numerous complaints filed against her by her co-workers and probationers,” but the County refused to provide her with the complaints. Reaves was suspended for 30 days, for which she filed a grievance, but the County “repeatedly continued the hearing date for [Reaves’s] grievance from May 2014 until she was forced to retire in August 2014.” Reaves alleged, “The more [she] complained of the discrimination and retaliation against her, the worse her condition became. [Reaves] was isolated and ostracized by [Williams] who micro-managed everything she did. . . . [¶] . . . [¶] . . . The more [Reaves] tried to hang in there and do her work, the more hostile she found her work environment. [¶] . . . [¶] . . . Because of the incessant harassment and threats of termination, [Reaves] was forced to retire effective August 30, 2014, to keep her sanity.” Reaves alleged her forced retirement was “actually and proximately caused by the [County] and it was in retaliation for her complaining against [Rojas] and her cronies and challenging the discriminatory practices within the County.” In addition, following her forced retirement, the County refused to give her a badge, although other retired probation officers were given their badges upon their retirement.

On October 5, 2017 the trial court consolidated Reaves’s second action against the County with her first action against Rojas, Washington, and Williams.

3. Imposition of evidentiary and monetary sanctions against Reaves
4.
On October 12, 2017 Rojas, Washington, and Williams filed a motion for monetary, evidentiary, and terminating sanctions against Reaves for multiple discovery abuses. In opposition, Reaves denied any willful discovery violations and argued the individual defendants did not informally attempt to resolve the discovery disputes in good faith. On November 29, 2017 the trial court granted the motion, imposed evidentiary sanctions, and awarded $4,750 against Reaves and her attorneys.

5. Trial court’s grant of motion for judgment on the pleadings
6.
On November 29, 2017 the trial court set a December 28 hearing on its own motion for judgment on the pleadings (Code Civ. Proc, § 438) and to strike the complaint. The court stated, “It appears to the [c]ourt that the [c]omplaint in this action against the County and its [p]robation [d]epartment alleging . . . discharge in violation of public policy, etc. is based upon all of the same facts and . . . matters which were previously pled against the County in case number BC489065 [(the first action)] and which were permanently resolved as against [Reaves] by virtue of a summary judgment rendered against her and in the County’s favor in that case (upheld on appeal).” The court set a briefing schedule on the motion.

On December 12, 2017 the County filed a brief in support of the trial court’s motion contending the complaint in the second action contained no allegations of actionable adverse actions beyond those alleged in the first action. The County argued, “Admittedly, Reaves makes new claims of constructive termination on August 30, 2014, and the County’s subsequent refusal to issue her a retirement badge, neither of which occurred at the time the [c]ourt granted summary judgment in the [first action]. . . . However, the end of Reaves’[s] employment with the County was in the form of retirement; to the extent Reaves claims she was forced to retire as a result of the County’s conduct, all such conduct has already been determined to have been done for legitimate reasons, and without pretext, pursuant to the summary judgment ruling in the [first action]. As such, it cannot support an allegation of retaliatory termination.” The County also argued Reaves’s claim she never received a retirement badge was not an adverse employment action under FEHA.

In opposition, Reaves argued she received a second right-to-sue letter in 2015, her retaliation claim was based on new facts occurring after judgment was entered in the first action, and the facts she previously alleged were necessary to provide context for her new retaliation claim.

On December 28, 2017 the trial court granted judgment on the pleadings. The court rejected Reaves’s argument her forced retirement was a result of the County’s retaliation, reasoning, “Any decision on [Reaves’s] part to take an early retirement is not an act or ‘adverse action’ by the County at all. Instead, given that she is seeking to allege that it is a harm suffered by her (that she was constructively forced to resign) by the allegedly wrongful County acts which had already been claimed and been found to be without merit in the first lawsuit, it would have been and had to have been alleged as a part of the damages sought in the first lawsuit, and recovered therein had it not been decided against her. . . . She clearly could not seek damages from the County from certain alleged acts, go to trial, collect damages, and then file suit for new and additional damages allegedly later suffered from the same acts. . . . [¶] . . . [¶] Having lost based on the same ‘wrongful acts’ claimed in a first lawsuit, a second suit based on the same alleged ‘wrongful acts’ cannot be brought . . . on the facts of this case.”

In addition, the court found the County’s refusal to give Reaves her badge upon retirement was not an adverse employment action, and further, this was “a harm caused by those acts which have already been found to be acts as to which the County is fault free and is, therefore barred.” The court also found the denial of the badge was a “trifle[]” that could not support a legal claim. The court concluded, “[T]he filing of this second action was an attempt by [Reaves] to bypass and avoid a ruling which was ‘the law of the case’ by filing a ‘sham pleading.’ In the court’s view, this filing was, on its face, so frivolous and patently spurious as to appear to even potentially constitute a violation of [section] 128.5 . . . .”

On January 8, 2018 the trial court entered judgment in favor of the County. The judgment provided Reaves is to take nothing, and the County “is to recover its attorney’s fees and costs of suit in the amount of $_____ according to law.”

7. Trial court’s award of costs to the County
8.
On January 26, 2018 the County filed a memorandum of costs. On February 20 Reaves filed a motion to tax costs, arguing her retaliation claim was neither frivolous nor meritless. Reaves also challenged the County’s claimed $607.95 in costs for transcripts of court proceedings because the court did not order a transcript. On March 19, 2018 the trial court denied Reaves’s motion to tax costs, explaining the court had “found this case to be totally frivolous and unmerit[o]rious and to have been instituted without good cause or probable cause.” The court awarded the County $2,413.95 in costs to be added to the judgment by the court clerk.

DISCUSSION

A. Standard of Review
B.
In an appeal from “the granting of a motion for judgment on the pleadings . . . , we accept as true the allegations of the complaint.” (Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 303; accord, Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166.) But we “‘disregard any allegations of [a] complaint that conflict with judicially noticed documents.’” (York v. City of Los Angeles (2019) 33 Cal.App.5th 1178, 1193; accord, Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83 [in ruling on a demurrer, a pleading’s “allegations may be disregarded when they conflict with judicially noticed discovery responses”]; Dondlinger v. Los Angeles County Regional Park & Open Space Dist. (2019) 31 Cal.App.5th 994, 997-998 (Dondlinger) [on a motion for judgment on the pleadings, “‘[t]he trial court must accept as true all material facts properly pleaded, but does not consider . . . allegations contrary to law or facts that are judicially noticed’”].)

We review a trial court’s ruling on a motion for judgment on the pleadings de novo. (York v. City of Los Angeles, supra, 33 Cal.App.5th at p. 1193 [“‘“‘A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review.’”’”]; Dondlinger, supra, 31 Cal.App.5th at p. 998.) “If a judgment on the pleadings is correct on any theory of law applicable to the case, we will affirm it regardless of the considerations used by the superior court to reach its conclusion.” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 185; accord, Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 703.)

C. Issue Preclusion
D.
“Issue preclusion . . . prevents ‘relitigation of previously decided issues,’ rather than causes of action as a whole. [Citation.] It applies only ‘(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.’” (Samara v. Matar (2018) 5 Cal.5th 322, 327; accord, DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) “For purposes of [issue preclusion], an issue was actually litigated in a prior proceeding if it was properly raised, submitted for determination, and determined in that proceeding. [Citation.] . . . [Citations.] ‘The “identical issue” requirement addresses whether “identical factual allegations” are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same.’” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511-512; accord, Textron Inc. v. Travelers Casualty & Surety Co. (2020) 45 Cal.App.5th 733, 747 [“the factual predicate of the legal issue decided in the prior case must be sufficient to frame the identical legal issue in the current case, even if the current case involves other facts or legal theories that were not specifically raised in the prior case”].) “Courts have understood the ‘“necessarily decided”’ prong to ‘require[] only that the issue not have been “entirely unnecessary” to the judgment in the initial proceeding’ [citation]—leaving room for a decision based on two grounds to be preclusive as to both.” (Samara, at p. 327; accord, Lucido v. Superior Court (1990) 51 Cal.3d 335, 342.)

E. Issue Preclusion Bars Reaves’s Retaliation Claim in the Second Action
F.
Reaves contends her retaliation claim was not barred by issue preclusion because the County’s wrongful retaliatory acts alleged in the second action occurred after she filed her second amended complaint in the first action (in July 2013), including the events leading up to Reaves’s forced retirement in 2014 and the County’s subsequent denial of her badge. But Reaves was barred from relitigating whether the County had a legitimate, nondiscriminatory reason for disciplining her based on the 2010 and 2011 complaints filed by probationers because the issue was finally adjudicated (affirmed by us in Reaves I), actually litigated and necessarily decided in the first action (on the County’s summary judgment motion), and asserted against a party in the first action (Reaves). (Samara v. Matar, supra, 5 Cal.5th at p. 327; DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 825.) Similarly, the trial court finally adjudicated the County’s stated reasons were not pretextual. Therefore, Reaves’s retaliation claim fails under the three-stage framework applicable to FEHA retaliation causes of action under McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 800 (McDonnell Douglas). (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz); Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 55 (Glynn).)

“Under McDonnell Douglas, the plaintiff has the burden of establishing a prima facie case of retaliation by showing: (1) he [or she] engaged in ‘protected activity’; (2) he [or she] was subjected to an adverse employment action; and (3) there is a causal link between the protected activity and the adverse employment action.” (Glynn, supra, 42 Cal.App.5th at p. 55; accord, Yanowitz, supra, 36 Cal.4th at p. 1042; Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942.) Once the plaintiff presents a prima facie case of retaliation, the burden shifts to the employer to establish it acted for a legitimate, nondiscriminatory reason. (Yanowitz, at p. 1042; Glynn, at p. 55; Cornell, at p. 942.) If the employer makes this showing, the burden shifts back to the employee to prove intentional retaliation. (Yanowitz, at p. 1042; Glynn, at p. 55; Cornell, at p. 942.)

Reaves relies on the same protected activity alleged in the first action to support the first element of a prima facie case of retaliation in the second action, including filing a complaint with Chief Blevins in April 2010 alleging discrimination, additional complaints against Rojas and Washington in October 2010, and a complaint with the DFEH in July 2011. Reaves relies on her new allegations she was subjected to a hostile work environment and forced to resign in 2014 to support the second element of an adverse employment action. It is true a “‘“[c]onstructive discharge, like actual discharge, is a materially adverse employment action.”’” (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 315; accord, Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253.) However, Reaves’s claim fails because the alleged hostile work environment is premised on the County’s investigation of the same probationers’ complaints that were the subject of the County’s disciplinary action alleged in the first action and her supervisors’ threats to terminate her based on the same complaints.

Constructive discharge occurs “when the employer coerces the employee’s resignation, either by creating working conditions that are intolerable under an objective standard, or by failing to remedy objectively intolerable working conditions that actually are known to the employer.” (Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.4th 731, 737; accord, Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1245; St. Myers v. Dignity Health, supra, 44 Cal.App.5th at p. 315.) “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job . . . .” (Turner, at p. 1246.)

In light of the trial court’s determination in the first action the County had a legitimate, nondiscriminatory reason for its discipline related to the probationers’ complaints, Reaves has not alleged facts sufficient to show she was constructively discharged based on the County’s further investigation and discipline based on the same complaints. Further, even if Reaves had sufficiently alleged a prima facie case of retaliation, the trial court’s finding the County’s discipline was for a legitimate, nondiscriminatory reason created an insurmountable hurdle to Reaves’s retaliation claim under the second stage of the McDonnell Douglas burden-shifting framework. (See Yanowitz, supra, 36 Cal.4th at p. 1042; Glynn, supra, 42 Cal.App.5th at p. 55.) Likewise, the trial court’s finding the County’s proffered reason was not pretextual causes Reaves’s retaliation claim to fail at the third stage of the McDonnell Douglas analysis because Reaves did not allege in the second action any basis for the continued discipline other than the 2010 and 2011 probationer complaints. On these alleged facts, the trial court did not err in entering judgment on Reaves’s retaliation claim in the second action.

G. This Court Lacks Jurisdiction To Review Denial of Reaves’s Motion To Tax Costs
H.
Reaves argues the trial court erred in denying her motion to tax costs. However, we have no jurisdiction to review the order because Reaves did not file a separate notice of appeal from the court’s postjudgment order. Reaves filed her notice of appeal on February 2, 2018, more than two weeks before she filed her motion to tax costs (on February 20), and more than a month before the trial court issued its order on Reaves’s motion to tax costs (on March 20). “‘A postjudgment order which awards or denies costs or attorneys’ fees is separately appealable . . . [citations], and if no appeal is taken from such order, the appellate court has no jurisdiction to review it.’” (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693 (Silver); accord, Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1007-1008 (Nellie Gail Ranch) [“‘“‘[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.’”’”].)

In Silver and Nellie Gail Ranch, the Courts of Appeal concluded the appellants were precluded from appealing an award of attorneys’ fees where the judgments stated the respondent “shall recover” attorneys’ fees but left a blank for the amount, and the trial court had not made a determination as to the appellant’s entitlement to attorneys’ fees before entering the judgment. (Nellie Gail Ranch, supra, 4 Cal.App.5th at p. 1009; Silver, supra, 190 Cal.App.4th at pp. 692-693.) As the court in Nellie Gail Ranch explained, the “narrow exception to the rule requiring a separate notice of appeal for a postjudgment attorney fees award . . . applies solely when ‘the entitlement to fees [is] adjudicated by the original judgment, leaving only the issue of amount for further adjudication.’” (Nellie Gail Ranch, at p. 1009; accord, Silver, at p. 692; cf. Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 996-997 [appellate court had jurisdiction to consider appeal from judgment and award of attorneys’ fees where trial court determined entitlement to fees before entering judgment but left the amount of the awards blank].)

Here, as in Silver and Nellie Gail Ranch, the judgment did not adjudicate the County’s entitlement to costs, instead only leaving a blank for any future amount of fees and costs to be awarded. Reaves was therefore required to file a separate notice of appeal of the postjudgment award of costs. (Nellie Gail Ranch, supra, 4 Cal.App.5th at p. 1009; Silver, supra, 190 Cal.App.4th at p. 692.) In her supplemental brief, Reaves argues Silver and Nellie Gail Ranch are distinguishable because Reaves provided notice of her intent to appeal from the postjudgment order in her notice of appeal. It is true we “may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).) But here, the trial court had not announced its intended ruling on Reaves’s later-filed motion to tax costs. (See Silver, at p. 691 [“notice of appeal filed before announcement of trial court’s intended ruling is untimely and cannot be treated as a premature but timely notice”], citing First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960.) Under these circumstances, Reaves was required to file a notice of appeal after the trial court ruled on her motion to tax costs.

DISPOSITION

The judgment is affirmed.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.