Vargas v. City of Long Beach

1

ALBERTO VARGAS, et al., Plaintiffs and Appellants, v. CITY OF LONG BEACH, Defendant and Respondent.

B321208

California Court of Appeals, Second District, Fifth Division

September 6, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of the County of Los Angeles, No. BC675610 Holly J. Fujie, Judge. Affirmed.

Law Office of Gregory W. Smith, Gregory W. Smith and Diana Wang Wells, Benedon &Serlin, Douglas G. Benedon and Judith E Posner, for Plaintiffs and Appellants.

Rutan &Tucker, Samantha Lamm, for Defendant and Respondent.

KIM J.

I. INTRODUCTION

Plaintiffs,^[1] two former City of Long Beach (the City) police officers, appeal from the judgment entered after the trial court granted summary judgment on their claims against the City for whistleblower retaliation under Labor Code section 1102.5 (section 1102.5) and retaliation under FEHA.^[2] According to plaintiffs, the trial court erred when it: excluded evidence under the doctrine of issue preclusion; determined the City's motion on their section 1102.5 claim under the wrong legal standard; and concluded that there were no triable issues of fact on their two claims. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiffs' Prior Litigation

Vargas began his employment as a police officer for the City in 1994, and Orduno began his employment as an officer in 1999.

In 1997, 2004, and 2006, Vargas sued the City for FEHA violations. In August 2014 and April 2015, Vargas and Orduno sued the City for FEHA and Labor Code violations, and those two cases were consolidated (consolidated action) and resolved against plaintiffs on summary judgment. Finally, on March 28, 2017, Vargas filed another action against the City for retaliation under FEHA.

B. Internal Affairs Investigation

On April 18, 2016-four days after the trial court in the consolidated action issued its order granting the City's summary judgment motion-the City opened an internal affairs investigation into allegations that Vargas and Orduno had made untruthful statements in verified written discovery responses they submitted in support of their claims in that action.

The City's administrative complaint against Vargas listed three allegations of untruthfulness: (1) in written discovery responses dated May 1, 2015, and December 1, 2015, Vargas was untruthful when he asserted that he had been selected for the role of acting sergeant on multiple occasions prior to complaining about detrimental comments made by Lieutenant Christopher Klein; (2) in written discovery responses dated February 27, 2015, Vargas was untruthful when he asserted that he had previously filed a race discrimination complaint against the City that ended with a judgment in his favor; and (3) in written discovery responses dated April 7, 2016, Vargas was untruthful when he asserted that he was denied further access to overtime. City decision makers sustained the three allegations against Vargas.

The City's administrative complaint against Orduno listed, among others, three allegations of untruthfulness: (1) in written discovery responses dated February 27, 2015, Orduno was untruthful when he asserted that he had complained about the City's treatment of Vargas and Lieutenant Klein's comments about Vargas; (2) in written discovery responses dated February 27, 2015, Orduno was untruthful when he asserted that he experienced a lack of assistance on traffic stops which was a noticeable difference from the assistance he received prior to being required by the City to wear an audio recorder; and (3) in written discovery responses dated April 7, 2016, Orduno was untruthful when he asserted that he experienced difficulty in complying with the requirement to issue seven traffic violations in a five hour period. City decision makers sustained the three allegations against Orduno.

On April 5, 2017, Vargas and Orduno were notified in writing that the allegations of untruthfulness against them had been sustained. On May 23, 2017, Vargas and Orduno were both notified in writing that they had been dismissed from their employment as police officers with the City.

C. Instant Complaint

On September 13, 2017, plaintiffs filed the instant complaint against the City asserting causes of action for retaliation in violation of FEHA (Gov. Code, § 12940, subdivisions (a) and (h)) and violation of the whistleblower protections provided by section 1102.5.

In their FEHA claim, plaintiffs alleged that: (1) "In or about 2004, 2006, 2015, and 2017, . . . Vargas filed separate and distinct FEHA Discrimination and/or Retaliation cases and actively participated in litigation against the City ....Vargas also acted in the capacity of a witness and testified on behalf of Orduno in his FEHA case"; (2) "[i]n or about 2015, . . . Orduno filed a FEHA [r]etaliation case against the City .... Orduno also acted in the capacity of a witness and testified on behalf of Vargas in his FEHA case"; (3) "[a]s a result of multiple filings and lawsuits by Vargas pursuant to [FEHA], . . . the testimony of Vargas on behalf of Orduno in the 2015 FEHA lawsuit, and engaging in other protected activities as described above, the [City] retaliated against . . . Vargas by wrongfully terminating him"; and (4) "[a]s a result of filing a DFEH Complaint pursuant to [FEHA], testifying on behalf of Vargas, and being associated with Vargas, . . . Orduno was wrongfully terminated by the City ...."

In their section 1102.5 cause of action, plaintiffs alleged that: "[The City] retaliated against [them] for filing, engaging in litigation, and testifying in litigation as authorized by . . . Government Code section 12940 et seq. Said retaliation was based upon [p]laintiffs' disclosure of . . . Government Code section 12940 violations and because [p]laintiffs refused to refrain from filing claims against the City . . . for violations [of] . . . Government Code section 12940." (Emphasis omitted.) Their disclosures were legally protected activities under section 1102.5 and Labor Code section 1102.6 as they "had reasonable cause to believe" the information reported violated Government Code section 12940. The City retaliated against them by wrongfully terminating their employment.

D. Summary Judgment Proceedings

1. The City's Motion

On August 31, 2021, the City filed a motion for summary judgment, arguing that there was no merit to the FEHA retaliation claim because plaintiffs could not show they had engaged in protected activities under FEHA. According to the City, Vargas's 2004 and 2006 lawsuits were too remote in time to support an inference of retaliation and plaintiffs did not have an objectively reasonable belief that, by filing the consolidated action,^[3] they were reporting FEHA violations. They also argued that the doctrine of issue preclusion barred plaintiffs from relitigating the issues that were decided against them in the consolidated action.

The City also maintained that the section 1102.5 claim had no merit for similar reasons, namely, that plaintiffs could not show an objectively reasonable belief that, in pursuing the consolidated actions, they were engaging in activity protected by the whistleblower provisions of that statute.

In addition, the City asserted that there was no causal link between plaintiffs' activities and their terminations; it had independent and nonretaliatory reasons for terminating plaintiffs; and plaintiffs could not show the City's reasons were pretextual.

2. The City's Evidence

The City supported its motion with, among other evidence, plaintiffs' interrogatory responses and contradictory deposition testimony that the City decision makers considered in sustaining the allegations of untruthfulness and declarations from the City's Chief of Police, Robert Luna, and Commander Jeff Berkenkamp.

a. Discovery Responses and Testimony

In supplemental responses to special interrogatories, set one, dated May 1, 2015, and verified responses to special interrogatories, set two, dated December 1, 2015, Vargas stated that prior to complaining about Lieutenant Klein's detriment comments in February 2014, he "was selected for the acting sergeant role on a multitude of occasions; thus demonstrating that he [was] qualified to fill that position." The verification form attached to the responses to special interrogatories, set two, bore Vargas's signature and was undated. By signing the form, Vargas declared under penalty of perjury that he had read the responses, knew of their contents, and the responses were true. But, he later testified in deposition that he never served in the role of acting sergeant during his employment with the City, had never spoken to anyone about the process involved in being selected to serve in that role, and had never asked to be assigned to serve in that position.

In verified responses to form interrogatories dated February 27, 2015, Vargas stated that "[i]n or about 2008, [he] filed a race/national origin lawsuit against the [City], and it concluded with a judgment in his favor." The verification form attached to the responses bore Vargas's signature and was dated February 27, 2015. By signing the form, Vargas declared under penalty of perjury that he had read the responses, knew of their contents, and the responses were true. It was undisputed, however, that prior to the consolidated action, Vargas had never filed a race or national origin lawsuit against the City.

In verified responses to supplemental interrogatories dated April 7, 2016, Vargas stated multiple times that he was denied access to grant overtime. The verification form attached to the interrogatories bore Vargas's signature and was dated April 7, 2016. By signing the form, Vargas declared under penalty of perjury that he had read the...