Tentative Ruling: Mark Signa et al vs The Regents of the University of CA et al

Case Number

18CV05728

Case Type

Hearing Date / Time

Fri, 03/27/2026 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

Mark Signa v. The Regents of the University of California, et al. 

Lead Case No. 18CV05728 (Consolidated for Pre-Trial Purposes Only with Case Nos. 19CV01431, 19CV01625, 19CV02586, 19CV04418, 21CV01256)

           

Hearing Date:      March 27, 2026                                                     

HEARING:              Motion of David Millard and Gregory Smorodinsky for Summary Judgment or in the Alternative Summary Adjudication (Reyes v. UC Regents, Case No. 19CV02586)

ATTORNEYS:        For Plaintiffs Mark Signa, Michael Little, Tiffany Little, Matthew Sterne, and Jonathan Lee Reyes: Ognian Gavrilov, Jamie Keeton, Gavrilov & Brooks, Darren M. Richie, DRE Law, A.P.C.

                                    For Defendants Dustin Olson, Cathy Farley, David Millard, Robert Romero, Gregory Pierce, and Gregory Smorodinsky: Daphne M. Anneet, Blithe S. Bock, Burke, Williams & Sorensen, LLP

                                    For Defendant The Regents of the University of California: David M. Huff, Enrique M. Vassallo, Jaqueline Orozco, Kevin E. Gilbert, Orbach Huff + Henderson LLP

                                   

TENTATIVE RULING:

For all reasons stated herein, the motion of defendants David Millard and Gregory Smorodinsky for summary judgment or in the alternative summary adjudication is granted in part. Summary adjudication is granted as to the second cause of action for violation of Labor Code section 1102.5 (as to moving defendants Millard and Smorodinsky only). The motion is denied in all other respects.

Background:

Plaintiff Jonathan Lee Reyes (Reyes) initiated this action on May 17, 2019, by filing his complaint against defendants The Regents of the University of California (UC Regents), David Millard (Millard), and Gregory Smorodinsky (Smorodinsky), setting forth two causes of action for (1) violation of Whistleblower Protection Act and (2) violation of Labor Code section 1102.5.

As alleged in the complaint:

Reyes is a police officer employed by UC Regents at the University of California, Santa Barbara (UCSB) in Goleta. (Compl., ¶ 10.) Reyes was supervised by Millard (a lieutenant), Smorodinsky (a sergeant), and others. (Ibid.)

In June 2017, Millard informed Reyes that a trainee would be assigned to Reyes. (Compl., ¶ 11.) Reyes worked with this trainee as a field training officer (FTO) from June 15 to June 16 and from June 21 to June 23. (Compl., ¶ 13-14.) Other officers also worked with this trainee. (Compl., ¶ 17.)

Reyes expressed concerns to Millard that placing the trainee on day training would not benefit the trainee. (Compl., ¶ 11.) Reyes also informed Millard that the trainee was not ready for “ghost phase” training in the field. (Compl., ¶ 15.) Reyes’ concerns were not shared by Millard. (Compl., ¶ 11.)

The trainee had not passed the California Commission on Peace Officer Standards and Training (POST) program. (Compl., ¶ 17.) Multiple evaluations by FTO’s indicated the trainee was failing his training program. (Ibid.) The trainee had been recommended for termination by one of the FTOs. (Ibid.)

On June 27, 2017, Reyes attended an FTO meeting. (Compl., ¶ 17.) Millard also attended. (Ibid.) Following this meeting, Millard emailed the department and indicated the trainee had successfully been released from FTO training despite the concerns and objections from the FTOs. (Ibid.)

On June 29, 2017, Reyes emailed the POST region coordinator, Christina Ford, and expressed concerns over the trainee’s improper release from FTO training. (Compl., ¶ 19.) Reyes indicated the FTO supervisor had not singed the POST attestation of completion and the trainee had not passed the POST FTO program. (Ibid.)

Reyes believed that releasing an unqualified officer with full arrest authority was a threat to the safety of the UCSB and the general public. (Compl., ¶ 19.) Reyes believed that UC Regents had violated Penal Code section 832 and allowed unsafe work practices by releasing an unqualified officer with full arrest authority. (Ibid.)

Based on the court’s research, Penal Code section 832, subdivision (a) provides in part, “[e]very person described in this chapter as a peace officer shall satisfactorily complete an introductory training course prescribed by the Commission on Peace Officer Standards and Training.”

At a meeting in July 2017, Millard expressed concerns about Reyes being vocal about the trainee’s release from the POST training. (Compl., ¶ 20.) Millard accused Reyes of not following an order to place the trainee on ghost phase training and expressed concerns about losing POST certification and funding based on Reyes’ conduct. (Ibid.)

On July 19, 2017, Reyes attended a meeting with Millard and other FTOs. (Compl., ¶ 21.) Millard expressed that some people did not abide by his plan pertaining to the trainee and Reyes felt these comments were directed at him. (Ibid.)

On July 20, 2017, an administrative memo was distributed stating that a new corporal selection process would begin within Reyes’ department. (Compl., ¶ 22.) Current corporals were required to send a letter indicating their continued interest. (Ibid.) Reyes had recently obtained the position of corporal four months earlier and indicated his continued interest in the position. (Ibid.)

On August 25, 2017, corporate selections were announced. (Compl., ¶ 23.) Reyes was not selected for corporal despite UC Regents increasing the corporal positions in Reyes’s department from five to seven. (Ibid.) Reyes had never received any negative remarks as corporal and was better qualified for the position than other candidates selected. (Ibid.)

On September 6, 2017, Reyes applied for a sergeant position. (Compl., ¶ 24.) In March 2018, Reyes was informed by Millard that Reyes was not selected despite being more qualified than other selected candidates. (Compl., ¶¶ 24-26.) Reyes asked to see his scores pertaining to the selection process but Millard denied this request. (Ibid.)

On September 3, 2018, Reyes received his annual performance evaluation from Smorodinsky, who had supervised Reyes for three months at this point after Smorodinsky was selected for the sergeant position. (Compl., ¶ 27.) The review was very critical of Reyes and gave Reyes low marks. (Ibid.) Smorodinsky refused to change the negative performance review after Reyes objected to a number of points. (Compl., ¶ 28.)

On October 1, 2018, Reyes notified Smorodinsky of Reyes’ intention to file a grievance. (Compl., ¶ 30.) Smorodinsky then informed Reyes that an internal investigation into a minor traffic collision that occurred in August 2018 would be conducted despite a prior determination that Reyes followed protocol for this accident. (Ibid.) Reyes received a letter of warning as a result of this internal investigation. (Ibid.)

On October 1, 2018, Reyes filed a grievance statement to have his performance review properly evaluated. (Compl., ¶ 31.) On January 23, 2019, the negative performance review was overturned. (Compl., ¶ 32.)

Reyes alleges that the various adverse employment actions he suffered were initiated in retaliation to his whistleblower complaints in violation of California law. (Compl., ¶¶ 33-34.)

On September 17, 2021, the court ordered that six actions pending in the Superior Court for the County of Santa Barbara be consolidated for pretrial purposes and transferred to department 4: Signa v. UC Regents, Case No. 18CV05728; Little v. UC Regents, Case No. 19CV01431; Stern v. UC Regents, Case No. 19CV04418; Reyes v. UC Regents, Case No. 19CV02586; Smith v. UC Regents, Case No. 19CV01625; and Hashimoto v. UC Regents, Case No. 21CV01256. The court designated the Signa v. UC Regents action (Case No. 18CV05728) as the lead case.

On December 24, 2025, Millard and Smorodinsky filed this motion seeking summary judgment as to Reyes’ complaint or in the alternative summary adjudication as to each cause of action asserted against them. Millard and Smorodinsky argue that they cannot be personally liable for personnel management decisions made on behalf of their employer, UC Regents. Millard and Smorodinsky argue that while an employer may be liable for such acts if they turn out to be discriminatory, individual supervisors cannot. Millard and Smorodinsky argue that they cannot be liable in their personal capacity under Labor Code section 1102.5 as a matter of law. Smorodinsky argues that he cannot be liable for retaliation because he did not have knowledge of facts pertaining to Reyes’ alleged protected activity. This motion is opposed by Reyes. UC Regents did not join this motion or take a position pertaining to this motion.

Analysis:

(1)       Standard on Summary Judgment

A defendant may move for summary judgment if the defendant contends the action against it has no merit. (Code Civ. Proc., § 437c, subd. (a).) To obtain summary judgment, a defendant must show “there is no triable issue as to any material fact and [the defendant] is entitled to a judgment as a matter of law.” (Id., subd. (c).)

A defendant has “met that party’s burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met that burden, “the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) However, “[f]rom commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 (Aguilar).)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(1).) “ ‘Material facts’ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Cal. Rules of Court, rule 3.1350(a)(2).) “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (Id., rule 3.1350(d)(2).) Litigants are to “[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied! [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).)

(2)       Millard and Smorodinsky’s Separate Statement (Issues One through Six)

Millard and Smorodinsky submit a separate statement (SSUMF) containing 70 material facts they contend are undisputed. The first three material facts are entitled, “background facts.” (SSUMF, Nos. 1-3. p. 4, ll. 1-25.)

Material fact Nos. 4 through 65 are submitted as to, “Issue One: First Cause Of Action Under The California Whistleblower Act [Citation] Fails Because These Claims Are Based Upon Personnel Management Decisions That Millard And Smorodinsky Undertook, Which Cannot Lead To Individual Liability As A Matter Of Law.” (SSUMF, Nos. 4-65, p. 5, l. 1 – p. 36, l. 21; see Motion, p. 3, ll. 22-26.)

Material Fact Nos. 4 through 66 are submitted as to, “Issue Two: Second Cause Of Action For Whistleblower Retaliation Under §[] 1102.5 Fails Because These Claims Are Based Upon Personnel Management Decisions That Millard And Smorodinsky Undertook, Which Cannot Lead To Individual Liability As A Matter Of Law.” (SSUMF, Nos. 4-66, p. 37, ll. 1-16; see Motion, p. 3, l. 27 – p. 4, l. 2.)

Material Fact Nos. 4 through 65 and 67 are submitted as to, “Issue Three: Reyes’ First Cause Of Action For Whistleblower Retaliation Under §[] 8547.10 Fails Because Even If Reyes Could State A Prima Facie Case, Clear And Convincing Evidence Confirms That Millard And Smorodinsky Reasonably Believed That All Personnel Actions They Took In Relation To Reyes Were Justified By The Evidence They Had Before Them So They Are Entitled To Judgment Pursuant To §[] 8547.10, Subd. (d).” (SSUMF, Nos. 4-66, p. 37, ll. 11-22; see Motion, p. 3, l. 27 – p. 4, l. 2.)

Material Fact No. 68 is submitted as to, “Issue Four: Reyes’ Second Cause of Action for Whistleblower Retaliation Under §[] 1102.5 Fails Because This Claim Cannot Be Asserted Against an Individual As a Matter of Law.” (SSUMF, No. 68, p. 37, l. 23 – p. 38, l. 8; see Motion, p. 4, ll. 8-10.)

Material Fact Nos. 53 through 65 are submitted as to, “Issue Five: Reyes’ First Cause Of Action For Whistleblower Retaliation Under §[] 8547.10 Fails Against Smorodinsky Because The Undisputed Facts Confirm That Smorodinsky Was Not Aware That Reyes Had Engaged In Any Protected Activity, So None Of The Personnel Actions That He Took Could Have Been Related In Any Way To Such Protected Activity.” (SSUMF, Nos. 53-65, p. 38, ll. 9-18; see Motion, p. 4, ll. 11-14.)

Material Fact Nos. 53 through 65 and 70 are submitted as to, “Issue Six: Reyes’ Second Cause Of Action For Whistleblower Retaliation Under The California Labor Code §[] 1102.5 Fails Against Smorodinsky Because The Undisputed Facts Confirm That Smorodinsky Was Not Aware That Reyes Had Engaged In Any Protected Activity, So None Of The Personnel Actions That He Took Could Have Been Related In Any Way To Such Protected Activity.” (SSUMF, Nos. 53-65, 70, p. 39, ll. 1-10; see Motion, p. 4, ll. 15-19.)

(3)       Non-Employer Individual Liability under Reyes’ Second Cause of Action for Violation of Labor Code Section 1102.5 (Issue Four)

“[T]he operative pleading frames the issues for purposes of summary judgment and a defendant need address only the claim(s) alleged and need not anticipate new, unpled claim.” (Restivo v. City of Petaluma (2025) 111 Cal.App.5th 267, 279.) The second cause of action seeks to impose liability on Millard and Smorodinsky in their individual capacity based solely on Labor Code section 1102.5. (Compl., ¶¶ 46-52; Reyes Resp. SSUMF, No. 68, p. 40, ll. 20-28.) Millard and Smorodinsky argue that Labor Code section 1102.5 does not create liability for supervisors in their individual capacities who are not themselves employers. (Motion, p. 12, l. 5 – p. 6, l. 10.) Reyes argues that individual liability can be based on section 1102.5. (Opp., p. 9, l. 24 – p. 11, l. 21.) If successful in their arguments, this legal issue raised by Millard and Smorodinsky would dispose of the second cause of action against them. (See Code Civ. Proc., § 437c, subd. (f)(1); Compl., ¶¶ 46-52.) The court will address this issue of law.

Under Labor Code section 1102.5, subdivision (b): “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information …to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance ….” (Lab. Code, § 1102.5, subd. (b), italics added.) The legal issue presented is whether this statute establishes liability for damages in a civil action for clams brought by employees, such as Reyes, against supervisors acting on behalf of their employers, such as Millard and Smorodinsky, in their individual capacity.

Given there is no clear definition of the phrase, “any person acting on behalf of the employer,” or whether there is individual liability for such a person in a civil action seeking monetary damages brought pursuant to Labor Code section 1102.5, it is helpful to look at the implementing provisions of this statute contained in the same chapter. “We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment….” (People v. Porter (2025) 111 Cal.App.5th 927, 934-935.)

As to civil penalties under Labor Code section 1102.5, “an employer is liable for a civil penalty … for each violation of this section to be awarded to the employee who was retaliated against.” (Lab. Code, § 1102.5, subd. (f)(1), italics added.) The statute indicates that only employers are liable for civil penalties.

As to the burden of proof in civil actions for damages, “once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.” (Lab. Code, § 1102.6, italics added.) The burden of proof in civil actions is established only as to employees and employers.

As to the recovery of civil damages, “[n]othing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.” (Lab. Code, § 1105, italics added.) This provision discussing damages in civil actions only discusses damages in the context of a litigation between an employee and employer.

By comparison to the provisions discussing civil liability, as to criminal penalties, “[a]n employer or any other person or entity that violates this chapter is guilty of a misdemeanor punishable, in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine ….” (Lab. Code, § 1103, italics added.) Notably, unlike civil penalties and the burden of proof in civil actions for damages, as to criminal penalties, employers or other persons or entities can be guilty of such misdemeanors. (See ibid.)

The court has not located any published California appellate decision addressing whether supervisors are individually liable for their own violations of Labor Code section 1102.5 in a civil action for damages. However, “most district courts that have addressed the issue have held that section 1102.5 does not impose individual liability on supervisors.” (Mewawalla v. Middleman (N.D. Cal. 2022) 601 F.Supp.3d 574, 608.) According to one district court, “the alleged violations under Section 1102.5 are predicated upon an employer/employee relationship … [and] [t]he relevant portions of the statute clearly indicate that the statute is meant to establish prohibited activity by employers, rather than individuals.” (Vierria v. California Highway Patrol (E.D. Cal. 2009) 644 F.Supp.2d 1219, 1244.)

Another district court concluded, “[t]he language of the statute on which plaintiff relies does not include clear language imposing individual liability, but rather uses the kind of language consistently associated with imposition of liability on an employer alone.” (Tillery v. Lollis (E.D. Cal., Aug. 13, 2015) 2015 WL 4873111, at *10; see also Vera v. Con-way Freight, Inc. (C.D. Cal., Apr. 6, 2015) 2015 WL 1546178, at *1 [“The statutory text, structure, and legislative history all indicate that only employers—not individual employees—are liable for violations of the statute.”]; Conner v. Aviation Serv. of Chevron U.S.A. (N.D. Cal. Nov. 5, 2014) 2014 WL 5768727, at *5 [“Plaintiffs have failed to point to any authority that establishes that individual liability exists for violations of Section 1102.5 ….”].)

Millard and Smorodinsky also cite cases interpreting the term “person” in the context of retaliation and discrimination claims under the Fair Employment and Housing Act (FEHA). In Jones v. Lodge at Torrey Pines P’ship (2008) 42 Cal.4th 1158, 1173, the court held in the context of FEHA that an “employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation.” Similarly, in Reno v. Baird (1998) 18 Cal.4th 640, 643, the court held that “FEHA, like similar federal statutes, allows persons to sue and hold liable their employers, but not individuals.”

Reyes argues that the 2013 amendments (effective January 1, 2014) of Labor Code section 1102.5 expanded the reach of this statute to include any person acting on behalf of the employer. Reyes argues “[i]f ‘any person’ does not refer to individual supervisors, the amendment adds nothing to the law.” (Opp., p. 10, ll. 13-14.)

Reviewing the case law and statutory language presented by the parties and based on the court’s independent research, the court concludes that Labor Code sections 1102.5 and 1102.6 do not permit civil actions by employees against non-employer-supervisors in their individual capacities. Of particular note, section 1102.6 addressing the burden of proof in civil actions only speaks in terms of suits by employees against employers. (See Lab. Code, § 1102.6.) There is no mention of the burden of proof in civil actions pertaining to non-employer individuals who violated section 1102.5. (See ibid.)

Also of importance, the provision addressing criminal penalties under this chapter was amended in 2013 to include liability for “[a]n employer or any other person or entity,” but the civil action provision under Labor Code section 1102.6 and the civil damages provision under Labor Code section 1105 were not so amended. (See Lab. Code, §§ 1102.6, 1103, 1105.) The court notes that in each circumstance in this chapter addressing civil liability for damages or civil penalties, such civil liability is discussed in terms of liability for the employer. (See Lab. Code, §§ 1102.5, subd. (f)(1),1102.6, 1105.) None of these provisions discuss civil liability for supervisory employees in their individual capacities or persons other than employers. (See ibid.)

In evaluating a statutory amendment, a court “must explore whether the amendment changed or merely clarified existing law.” (Carter v. California Dep’t of Veterans Affairs (2006) 38 Cal.4th 914, 922.) “While an intention to change the law is usually inferred from a material change in the language of the statute, a consideration of the surrounding circumstances may indicate, on the other hand, that the amendment was merely the result of a legislative attempt to clarify the true meaning of the statute.” (Dep’t of Corr. & Rehab. v. Workers' Comp. Appeals Bd. (2008) 166 Cal.App.4th 911, 917-18.) “[T]he plain language of [section] 1102.5 and the legislative history of the 2013 amendment do not demonstrate an expansion of liability to permit whistleblowers to seek money damages from non-employers. To the contrary, the legislature’s decision not to amend [section] 1105 to allow recovery of damages from anyone other than employers forecloses Plaintiff’s theory, particularly when the legislature did amend [section] 1103 to impose criminal liability on non-employer individuals.” (Dawson v. Caregard Warranty Service, Inc. (C.D. Cal., Jan. 12, 2024) 2024 WL 661198, at *6.)

For all these reasons, the court agrees with Millard and Smorodinsky that Reyes’ second cause of action for violation of Labor Code section 1102.5 asserted against them in their individual capacity fails as a matter of law. The court will grant summary adjudication of the second cause of action in favor of Millard and Smorodinsky. (Code Civ. Proc., § 437c, subd. (f)(1).) This ruling does not address this cause of action as to non-moving defendant UC Regents.

(4)       Issues One and Six Are Moot                  

Having determined that there is no individual liability for Millard or Smorodinsky under Labor Code section 1102.5, the court will deny their remaining arguments as to the second cause of action as moot.

(5)       Triable Issues of Fact as to the First Cause of Action for Violation of the Whistleblower Protection Act (Issues One, Three, and Five)

Reyes’s first cause of action is asserted pursuant to California Government Code section 8547, et seq. (Compl., ¶¶ 39-45.) “The California Whistleblower Protection Act [the Act] … prohibits retaliation against state employees who “report waste, fraud, abuse of authority, violation of law, or threat to public health” [Citation.] The Act authorizes ‘an action for damages’ to redress acts of retaliation. [Citation.]” (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 882.)

Pertaining to University of California employees, the Act provides that “any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party.” (Gov. Code, § 8547.10, subd. (c).)

“This section is not intended to prevent a manager or supervisor from taking, directing others to take, recommending, or approving any personnel action or from taking or failing to take a personnel action with respect to any university employee, including an officer or faculty member, or applicant for employment if the manager or supervisor reasonably believes any action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure.” (Gov. Code, § 8547.10, subd. (d).)

“In any civil action … once it has been demonstrated by a preponderance of the evidence that an activity protected by this article was a contributing factor in the alleged retaliation against a former, current, or prospective employee, the burden of proof shall be on the supervisor, manager, or appointing power to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order.” (Gov. Code, § 8547.10, subd. (e).) “Government Code section 8547.10, subdivision (e), rather than McDonnell Douglas, provides the relevant framework for analyzing claims under Government Code section 8547.10.” (Scheer v. Regents of the University of California (2022) 76 Cal.App.5th 904, 916.)

Unlike the provisions in Labor Code sections 1102.5 and 1102.6, Government Code section 8547.10 expressly provides for supervisor liability in an action brought by the affected employee. Moreover, as discussed below, it is apparent there are triable issues of material fact that preclude summary adjudication as to the first cause of action for violation of the Act.

In evaluating the evidence presented by the parties on summary judgment, “ ‘[w]e accept as true the facts ... in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘view the evidence in the light most favorable to plaintiff[ ] …’ and ‘liberally construe plaintiff[‘s] evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[‘s] favor.’ ” (Nazir, supra, 178 Cal.App.4th at p. 254.) In resolving the motion, the court may not weigh the evidence to determine whose version is more likely true. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

Millard and Smorodinsky fail to carry their burden of production as to material fact No. 21 that “[n]either Millard nor Smorodinsky was involved in the August 2017 selection of corporals.” (See SSUMF, No. 21; Reyes Resp. SSUMF, No. 21; Code Civ. Proc., § 437c, subd. (p)(2); Evid. Code, § 110.) Millard and Smorodinsky cite Millard’s declaration that his “only involvement in the process of selecting officers for those specialty assignments was to tabulate each officer’s scores; at best, I was the messenger in this process.” (See SSUMF, No. 21.) This cited declaration testimony does not establish that Millard was not involved. (See Evid. Code, § 110.) To the contrary, this declaration testimony indicates that Millard did have some involvement. (See Millard Decl., ¶ 18.) Reyes cites evidence indicating that Millard drafted an email pertaining to the selection process as well as Millard’s declaration indicating that Millard “conveyed everyone’s scores to Chief Olson, who made the final selections.” (Reyes Resp. SSUMF, No. 21; Millard Decl., ¶ 18, Ex. 5 at pp. 043-045 [UCRegents_Reyes 304-306].) Even assuming Millard and Smorodinsky carried their burden of production, Reyes has established a triable issue of fact. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 845.) There are triable issues as to material fact No. 21.

As to material fact No. 34, that Reyes cites only his own qualifications and not

the comparative qualifications of other candidates for sergeant in written discovery, Reyes cites his response to Special Interrogatory Nos. 96 and 141. (Reyes Resp. SSUMF, No. 34.) In these responses, Reyes compared his qualifications as to “patrol supervisory experience” to Smorodinsky: “As an FTO and corporal I had patrol supervisory experience over Sergeant Smorodinsky.” (Reyes Resp. SSUMF, No. 34; Millard and Smorodinsky Appendix [Appx.], Ex. 31 at pp. 23, 30.) This material fact is disputed.

As to material fact No. 40, that Smorodinsky had supervised Reyes

for only one shift when completing the performance evaluation, this fact is contradicted by the evidence submitted by Reyes that Smorodinsky had supervised Reyes for a few months at that time. (Reyes Resp. SSUMF, No. 40; Millard Decl., ¶ 31; Smorodinsky Decl., ¶ 10.) There are triable issues as to material fact No. 40.

As to material fact No. 41, that Millard was not involved in the completion of Reyes’ personnel evaluation, Millard’s declaration cited by Reyes indicates that Millard was involved in approving the evaluation. (Reyes Resp. SSUMF, No. 41; Millard Decl., ¶ 31.) According to Millard: “I did not prepare Reyes’ evaluation in any way, but I reviewed and approved it.” (Millard Decl., ¶ 31.) The extent of Millard’s involvement with Reyes’ performance evaluation is disputed.

As to material fact No. 64, that Smorodinsky did not know that Reyes had

communicated with Ford or anyone at POST, Reyes cites his performance evaluation which criticized Reyes for being “quick to point out any perceived wrong doings.” (Reyes Resp. SSUMF, No. 64, Appx., Ex. 11 at p. REY000038.) Smorodinsky is the “rater” on this review. (Appx., Ex. 11 at pp. REY000032-33.) The review states in part that, “Cpl. Reyes is quick to point out any perceived wrong doings by the department administration or staff…. I would advise Cpl. Reyes to either bring this up to his superiors in a private setting or away from other department employees. Often times the perceived wrong doing was in fact proven to be either wrong or inaccurately perceived by Cpl. Reyes….” (Appx., Ex. 11 at p. REY000038.) There is a triable issue of fact as to whether Smorodinsky retaliated against Reyes in this performance review for communicating about the trainee not passing the POST training, or based on other related protected activity by Reyes. (See Nazir, supra, 178 Cal.App.4th at p. 254.) This is not an issue that can be resolved on summary judgment.

Based on the foregoing, which is not an exhaustive list of the disputed material facts, there are triable issues of material fact as to the first cause of action for violation of the Act as to Millard and Smorodinsky. Millard and Smorodinsky have not established that they are entitled to adjudication of this claim as a matter of law. The court will deny Millard and Smorodinsky’s motion for summary adjudication as to the first cause of action and their motion for summary judgment as to the entire complaint. (See Code Civ. Proc., § 437c, subds. (c), (f)(1); Aguilar, supra, 25 Cal.4th at p. 845; Gov. Code, § 8547.10, subd. (e).)

(6)       Millard and Smorodinsky’s Evidentiary Objections

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).) The court has reviewed the evidentiary objections of Millard and Smorodinsky and they do not pertain to evidence the court deems material to its disposition of this motion.