Markosyan v. Superior Court

HOVHANNES MARKOSYAN, Plaintiff and Appellant, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Defendant and Respondent.

B303211

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

December 24, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC706828)

APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth R. Feffer, Judge. Affirmed.

Hovhannes Markosyan, in pro. per., for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Nate J. Kowalski, Jorge J. Luna and Jennifer D. Cantrell for Defendant and Respondent.

* * * * * * The local superior court terminated one of its probationary employees after he searched for his brother's pending criminal case in the court's database and wrote a letter to the judge presiding over that case emphasizing his job with the court and urging leniency. The employee subsequently sued the court, claiming that he was fired for reporting various violations of law. The trial court granted summary judgment for the superior court after concluding that the employee did not make out a prima facie case for retaliation; the court also refused to entertain the employee's requests to add new claims. We conclude there was no error, and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Plaintiff's employment and promotion to Judicial Assistant

The Los Angeles Superior Court (the Superior Court) hired Hovhannes Markosyan (plaintiff) in December 2014. On June 14, 2016, plaintiff was promoted to the position of Judicial Assistant in the main criminal courthouse in downtown Los Angeles. As part of the promotion, plaintiff was placed on probationary status for one year—that is, until June 13, 2017.¹

B. Improper conduct

In 2015, the People filed charges against plaintiff's brother in the Superior Court for the crime of robbery.

Between the time he was promoted to a probationary Judicial Assistant and June 2017, plaintiff used his access to the Superior Court's docketing system to search for his brother's case 39 times. He also searched for himself one time, and for "defendant O.J. Simpson" two times.

On August 12, 2016, plaintiff sent a letter to the trial judge presiding over his brother's still-pending case. In the first and last paragraphs of the letter, plaintiff identified himself as being a Judicial Assistant with the Superior Court. Plaintiff acknowledged that his brother had entered a "no contest" plea to the robbery charge. However, plaintiff expressed his "belief and conviction" that his brother entered that plea to avoid "losing his daughter for a longer period of time" and that the "heavy emotional and psychological burden" of possibly losing his daughter meant that the plea was not "freely and voluntarily" given. Plaintiff also maintained that his brother was "innocent" because plaintiff had not noticed "anything suspicious" about his brother when he saw him on the night of the robbery and because his brother did not need the money. Simultaneously and somewhat inconsistently, plaintiff also wrote that he did not want to "discredit the plea" and thus asked the judge to impose a more lenient sentence, including any "alternative to sending [his brother] to prison." At no point in the letter did plaintiff state that his brother's plea was unlawful, illegal or otherwise improper.²

C. Investigation

In September 2016, the Superior Court's Labor, Equity and Performance Division (Labor Division) opened an investigation into whether plaintiff's letter violated the Code of Ethics applicable to court employees. As part of its investigation, the Labor Division asked the Superior Court's Internal Affairs Department to audit plaintiff's use of the Superior Court's docketing system to determine whether plaintiff had used his access in an unauthorized manner.

The Code of Ethics applicable to Superior Court employees prohibits the "misuse of court . . . facilities for personal business," obligates employees to "[s]afeguard confidential information," and prohibits them from "using [their] position at [the] court to benefit self, friends, or relatives." The Guidelines that interpret the Code of Ethics more specifically prohibit employees from "us[ing]" the "special access" of their position "for personal gain" or to "facilitate a favorable disposition to a case, or provide access to confidential case information to benefit self, friends, or family members." Along similar lines, the Superior Court's personnel policy governing Internet, E-Mail, Telephone and Other Electronic Communications Systems prohibits employees from "improperly us[ing]" the court's "confidential and proprietary information" and from "[u]sing the Court's electronic . . . systems for personal gain." Plaintiff acknowledged that he was aware of—and familiar with—the Code of Ethics and Internet policy, although once litigation began he denied that his signature on the forms acknowledging his receipt of physical copies of these policies was authentic.

On June 1, 2017, the Labor Division interviewed plaintiff about the results of its investigation. With regard to the letter,plaintiff told the investigators that "the purpose of [his] letter was to inform the Judge of [his brother's] illegal plea." With regard to accessing the court's docketing system to look up his brother, himself, and O.J. Simpson, plaintiff first denied doing so, then later said he did not recall doing it or recall doing it so many times. When the investigators confronted plaintiff with his inconsistent answers, he walked out of the interview.

D. Plaintiff's termination

On June 8, 2017, the Superior Court released plaintiff from his probationary position as a Judicial Assistant, effectively terminating his employment.

E. Plaintiff's pre-termination complaints

While he served as a Judicial Assistant on probation, plaintiff "floated" to different courtrooms on an as-needed basis. During this time, plaintiff reported three violations of law he witnessed to his superiors at the Superior Court—namely, (1) he reported to the Court Operations Manager, Court Administrator, and the Senior Judicial Assistant that he was being required to work through part of his 90-minute lunch break, (2) he reported to "the entire management" that he was being required to work overtime without pay, and (3) he reported that criminal defendants who were charged with both felonies and misdemeanors were sometimes being held pending trial longer than the maximum sentence permitted for a misdemeanor.³

Although plaintiff conceded that he suffered no "negative action" from reporting the third alleged violation, he suspected that he was being punished for reporting the first two alleged violations because, after his reports, he was floated into courtrooms with high-volume misdemeanor calendars rather than being floated into a felony courtroom.

However, plaintiff was ultimately floated into a courtroom that he liked and was invited by the judge to stay.

II. Procedural Background

A. Pleadings

In May 2018, plaintiff sued the Superior Court. In the operative first amended complaint, plaintiff brought a claim for retaliatory termination in violation of Labor Code section 1102.5.⁴

B. Summary judgment

In August 2019, the Superior Court moved for summary judgment or summary adjudication of plaintiff's retaliation claim. After plaintiff filed an oversized opposition brief without leave ofcourt, after the Superior Court filed its reply brief, and after a hearing in mid-November 2019, the trial court granted the Superior Court's motion because plaintiff could not "establish a prima facie" case of retaliation.

C. Leave to amend

While the Superior Court's motion for summary judgment was pending, plaintiff made efforts to seek leave to file a second amended complaint that would allege two additional claims for breach of contract and wrongful termination in violation of public policy. Initially, plaintiff filed an ex parte application for leave to file his proposed second amended complaint. The trial court denied the application on the ground that the request must be made in a noticed motion. Plaintiff then filed a noticed motion for leave to file his proposed second amended complaint, and the motion was calendared for January 2020. Because the January 2020 date was after the mid-November 2019 date set for the hearing on the Superior Court's pending summary judgment motion, plaintiff filed an ex parte application to advance the date of the January 2020 hearing. The trial court denied the application, which left plaintiff's motion on calendar for January 2020.

When the trial court granted summary judgment for the Superior Court in mid-November 2019, it vacated the January 2020 hearing date for plaintiff's motion for leave to file a second amended complaint. Plaintiff did not object, either at the hearing or thereafter.

D. Judgment and appeal

Following entry of judgment in December 2019, plaintiff filed this timely appeal.

DISCUSSION

Plaintiff argues that the trial court erred in (1) summarily adjudicating his retaliation claim, and (2) not allowing him to file his second amended complaint.

I. Summary Judgment of Retaliation Action

A. The law, generally

Among other things, California law prohibits an employer from "retaliat[ing]" against an employee because the employee "disclos[ed] information" to his employer, if the employee has "reasonable cause to believe that the information discloses a violation of state or federal statute." (§ 1102.5, subd. (b); id., subd. (e) [for public employees, disclosing to employer is enough].)

To "'sharpen[] the inquiry into the elusive factual question[s]'" that predominate employment cases (St. Mary's Honor...