Saenz v. City of San Bernardino

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GARY SAENZ, Plaintiff and Appellant, v. CITY OF SAN BERNARDINO, Defendant and Respondent.

D080378

California Court of Appeals, Fourth District, First Division

June 30, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Bernardino County No. CIVDS2003802, Gilbert G. Ochoa, Judge. Affirmed in part, reversed in part.

Wagner Zemming Christensen, Daniel Moussatche, and Dennis E. Wagner for Plaintiff and Appellant.

Lynberg & Watkins, S. Frank Harrell, and Jonathan C Bond, for Defendant and Respondent.

HUFFMAN, J.

INTRODUCTION

Gary Saenz was elected San Bernardino city attorney in November 2015. In November 2016, the city council changed its charter to, among other things, eliminate the position of city attorney. The position's elimination was scheduled to become effective at the end of Saenz's term, March 5 2020.

While in office, Saenz provided advice and counsel to city councilmembers, staff, and the mayor, John Valdivia, a former councilmember elected to the Office of Mayor in 2018. In August 2018, the city council engaged an outside law firm for municipal legal services and city attorney services.

Saenz and the mayor clashed, and Saenz repeatedly advised the council against following the mayor's requests. The mayor and his chief of staff told Saenz that Saenz should not criticize the mayor and that Saenz was overstepping his role as city attorney. Saenz ignored the mayor and his chief of staff. In June 2019, the mayor created an ad hoc economic development committee, and it recommended the city reduce the city attorney's salary beginning July 1, 2019. The council voted to reduce the salary. Saenz's anticipated salary reduction was reversed following the issuance of a writ of mandate.

In February 2020, Saenz filed suit against the City of San Bernardino (San Bernardino) and the mayor, alleging whistleblower retaliation in violation of Labor Code^[1] section 1102.5, subdivision (b) (1102.5(b)) and seeking declaratory relief. The court granted San Bernardino's demurrer with leave to amend the first cause of action and without leave to amend the cause of action for declaratory relief. San Bernardino then demurred to Saenz's first amended complaint (FAC), and the court sustained it with leave to amend. In Saenz's second amended complaint (SAC), he added a cause of action for whistleblower retaliation under section 1102.5, subdivision (c). San Bernardino again demurred, and the court granted the demurrer without leave to amend.

On appeal, Saenz contends the court erred by improperly applying a heightened pleading standard to the SAC and by rejecting the addition of the second cause of action. We conclude the court identified the appropriate pleading standard, but in light of the Supreme Court's holding in People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 721 (Kolla's), the trial court erred in its application. Thus, we reverse the judgment dismissing the first cause of action without leave to amend. We also conclude the court did not abuse its discretion by rejecting the additional cause of action. Accordingly, we affirm that portion of the judgment.

BACKGROUND AND PROCEDURAL FACTS

Saenz filed suit against San Bernardino and its mayor on February 4, 2020. In his complaint, Saenz alleged causes of action against San Bernardino for retaliation for whistleblowing in violation of section 1102.5(b) and against the mayor and San Bernardino for declaratory relief. San Bernardino and the mayor demurred, arguing the complaint failed to state a cause of action (Code Civ. Proc., § 430.10) and inadequately specified which causes of action were stated against which defendants (id., subd. (f)). The court sustained the demurrer as to the first cause of action, with leave to amend. It also sustained the demurrer as to the second cause of action without leave to amend.

Saenz filed an FAC containing a single cause of action against San Bernardino: retaliation for whistleblowing activities in violation of section 1102.5(b). San Bernardino again demurred, arguing Saenz failed to allege sufficient facts to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) San Bernardino also argued that the first cause of action was barred by legislative immunity. The court sustained the demurrer with leave to amend.

Saenz then filed an SAC, the operative complaint. It alleges two causes of action: retaliation for whistleblowing activities in violation of section 1102.5(b) and retaliation for whistleblowing activities in violation of section 1102.5, subdivision (c).^[2]

In the SAC, Saenz alleges that he was elected in a recall election of the previous city attorney in November 2013 and returned to office by voters in November 2015. His four-year term was scheduled to continue through the first Monday of March 2020, in accordance with the city charter.

In November 2016, the city council changed its charter, and its newly adopted charter eliminated the position of city attorney, to become effective at the conclusion of the term of office. In 2018, city council member Valdivia was elected to the Office of Mayor.

In August 2018, San Bernardino contracted with an outside law firm for municipal legal services and city attorney services. The contract specified that Saenz would remain the elected city attorney until March 5, 2020, at which time an attorney from the outside law firm would serve as San Bernardino's city attorney.

While in office, Saenz counseled, advised, and warned elected officials and staff when they inadvertently or intentionally violated the city charter or the Ralph M. Brown Act (Brown Act), Government Code section 54950 et seq. He raised issues with "all members of the City Council" about the specificity of their meeting agendas' compliance with the Brown Act and told them they risked having their actions overturned for failure to comply with that law. Some employees ignored this advice, there were some "recalcitrant members of the City Council," and "the City Council beg[an] to undermine and usurp the authority of the City Attorney...."

Saenz told the city council at one of the first meetings after the mayor assumed office that increasing the mayor's staff size from three to nine employees could violate the city charter or a bankruptcy court order, and Saenz once criticized the mayor for attempting to call a special meeting to amend the municipal code. Saenz also told councilmembers from the fourth and seventh wards that the mayor was illegally attempting to remove the city manager so he could replace her with someone who was more subservient to the mayor.

In a private meeting, the mayor and his chief of staff told Saenz that they "would go to war" if Saenz continued to advise the city council against the mayor's requests. The chief of staff also told Saenz not to criticize the mayor during open session meetings. The mayor told the city attorney that Saenz was overstepping his role as city attorney. Saenz interpreted these comments to be instructions not to perform his duties, and he ignored them.

Saenz stated to the entire city council at a special meeting in March 2019 (the "Budget Study Workshop") that the meeting had not been properly agendized and violated the Brown Act, but the meeting was "conducted, nonetheless by the Mayor and City Council members." The mayor disagreed with Saenz and pulled aside Saenz to say that Saenz was "out of line." Saenz described the mayor and his chief of staff as "angry and hostile" to him.

The SAC also alleges that the mayor "frequently and continuously for months" harassed Saenz by saying Saenz was "out of line," and by demanding Saenz cease providing the city council advice contrary to the mayor's proposals. It further alleges that the mayor "allowed his staff" to harass Saenz, and that some employees and city councilmembers began a campaign to retaliate against him. Plus, "certain members" of the city council began to "undermine and usurp the authority" of the city attorney. The SAC alleges that Saenz "spoke out about the illegal and unethical activities within the city government, including illegal treatment of employees, hostile work environment, violations of the city charter and the Brown Act."

In June 2019, after the mayor asked if Saenz would agree to reduce his salary, the mayor created an ad hoc economic development committee comprised of three councilmembers. At a council meeting, the committee recommended the city reduce the city attorney's salary beginning July 1, 2019. Saenz told the council the action was illegal, and the mayor's chief of staff, also an attorney, disagreed. The council voted to reduce the salary, effective July 1, 2019, from $184,000 to $100,000 annually. In July 2019, Saenz successfully petitioned for writ of mandate against San Bernardino contesting the expected pay reduction. San Bernardino accepted the judgment.

The SAC includes two causes of action: retaliation in response to whistleblowing, in violation of section 1102.5(b), and retaliation in response to the refusal to comply with illegal orders, in violation of section 1102.5, subdivision (c). The second cause of action was not in the original complaint or the FAC.

San Bernardino demurred to the SAC for failure to allege sufficient facts to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) It also argued both causes of action were barred by legislative immunity, and the second cause of action was barred because Saenz was not granted leave to amend by adding a new cause of action. After a hearing on the matter, the court granted the demurrer without leave to amend.

In its ruling, the superior court concluded that the SAC lacked the required particularity. It also explained that because...