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, 04/24/2026 - 10:00
Nature of Proceedings
Motions for Summary Judgment
Tentative Ruling
For the reasons set forth herein, the motions of defendants Dustin Olson, Cathy Farley, David Millard, Robert Romero, Greg Pierce, and Greg Smorodinsky for Summary Judgment or, in the alternative, Summary Adjudication as to Tiffany Little’s complaint and as to Michael Little’s complaint are granted in part and denied in part as follows:
- 1. The motions for summary judgment are denied.
- 2. The motions for summary adjudication of the first cause of action for Violation of California Whistleblower Protection Act (Gov. Code, § 8547.10) is denied.
- 3. The motions for summary adjudication of the second cause of action for Violation of Labor Code section 1102.5 is granted as to the moving defendants.
Background:
As relevant to the present motions, on March 19, 2019, in Case No. 19CV01431, plaintiffs Michael Little (Michael) and Tiffany Little (Tiffany) (collectively “plaintiffs”) filed their complaint against defendants The Regents of the University of California (UC Regents), Dustin Olson (Olson), Cathy Farley (Farley), David Millard (Millard), Robert Romero (Romero), Gregory Pierce (Pierce), and Gregory Smorodinsky (Smorodinsky) for (1) Violation of California Whistleblower Protection Act, and (2) Violation of Labor Code section 1102.5. (Note: As plaintiffs have the same surname, they will be referred to by their first names for clarity. No disrespect is intended.)
As alleged in the complaint:
Olson, Farley, Millard, Romero, Pierce, and Smorodinsky are, and at all times mentioned in the complaint were, employees of University of California Police Department, Santa Barbara Police Department (UCSB-PD). (Compl., ¶¶ 4-9.)
Michael has been employed by UC Regents from approximately March 2014 through the present and Tiffany has been employed by UC Regents from approximately November 2014 through the present. (Compl., ¶ 15.) Plaintiffs worked at UC Regents’ location at University of California Santa Barbara Public Safety Building 574, Mesa Road, Goleta. (Id. at ¶ 16.)
Plaintiffs job titles were “Police Officer”, and they worked under managers and supervisors including Olson, Farley, Millard, Romero, Pierce, Smorodinsky, and Ryan Smith (Smith). (Compl., ¶ 17.)
In December 2015 and January 2016, Tiffany informed her direct supervisor, Smith, that a subordinate officer was spending an inexplicable amount of time in the UCSB Freshman Residence Halls while on duty. (Compl., ¶ 18.) Tiffany reported the subordinate officer’s suspicious behavior of turning off his radio and refusing to respond to calls for service or other officer’s requests for assistance for multiple hours at a time, as this posed a public safety risk to those that UCSB-PD was intended to serve and protect. (Ibid.)
On January 10, 2017, Smith and several other officers were present at a University of California, Los Angeles (UCLA) mutual aid event. (Compl., ¶ 19.) The officers were separated into two vehicles and Smith instructed the officers to drive “code-three,” meaning that the officers were to use their emergency lights on top of their vehicles to evade traffic. (Ibid.) Both vehicles proceeded to drive unsafely around vehicles and crossed intersections with only lights, no sirens. (Ibid.) UCLA did not request the officers to drive code-three, and the officers were not responding to an emergency, rather, Smith was attempting to get to UCLA in time for a breakfast event. (Ibid.)
On February 15, 2017, Tiffany informed Millard that Smith was involved in an intimate relationship with a subordinate officer, and informed him that Smith gave the subordinate officer preferential treatment by dismissing a vehicle accident that caused damage to UC Regents’ property, which would constitute a violation of UCSB-PD’s and UC Regents’ policy against nepotism and conflicting relationships. (Compl., ¶ 20.) Tiffany informed Millard that Smith intervened when Corporal Stern and Tiffany attempted to exercise normal supervisory duties over the officer. (Ibid.) Tiffany expressed to Millard that Smith’s actions were illegal, unethical, and violated department policy. (Ibid.)
In May 2017, Smith was present at a University of California, San Francisco (UCSF) mutual aid and requested to use a UC Regents’ rental vehicle to drive to Oakland. (Compl., ¶ 21.) Smith did not drive to Oakland, but instead drove to Santa Cruz and used a UC Regents’ gas card to purchase gas and used the vehicle for non-job-related purposes. (Ibid.)
On May 19, 2017, Tiffany informed Millard that Smith had used a UC Regents rental vehicle to drive to Santa Cruz for non-job-related purposes, and that Smith had attempted to intervene in an administrative investigation. (Compl., ¶ 22.)
On June 6, 2017, Smith drove recklessly during a pursuit, hit a parked car, and did not stop, in violation of Vehicle Code section 20002. (Compl., ¶ 23.) In June 2017, Tiffany informed Millard that Smith was potentially witnessed committing a hit-and-run while on duty and that Smith had committed timecard fraud. (Id. at ¶ 24.) Tiffany also informed Millard that in January 2017, Smith ordered an unsanctioned and unnecessary code-three emergency response that resulted in the involved vehicles dangerously maneuvering through traffic in an unsafe manner. (Ibid.) Tiffany again expressed to Millard that Smith’s actions were unethical, against departmental policy, and were creating a risk of harm to the public. (Ibid.)
In June 2017, Tiffany met with Millard and reported possible legal violations committed by Smith including misappropriations of department funds, improper use of emergency vehicles during mutual aid events, and a possible hit and run that was reported to Tiffany by a subordinate. (Compl., ¶ 25.) Millard informed Tiffany that he would review the documents that Tiffany had submitted. (Ibid.)
In June 2017, Smith was placed on leave from his employment with UCSB-PD. (Compl., ¶ 26.)
On July 31, 2017, Millard requested that Michael submit a memorandum for a Corporal position. (Compl., ¶ 27.) At the time, Michael was assigned as a Detective, which was a secure multi-year position and a development position for career advancement. (Ibid.) A move from a Detective assignment in investigations to a Patrol Corporal was in effect a demotion because it did not offer similar opportunities for advancement and development. (Ibid.)
In September 2017, Tiffany was informed that Smith returned to work, so she sent a text message to Millard about her concerns about potential retaliation by Smith. (Compl., 28.) Millard informed Tiffany that Smith was placed on leave for things unrelated to the complaint Tiffany had made in June 2017. (Ibid.)
In October 2017, Tiffany returned to work. (Compl., ¶ 29.)
In December 2017, Smith left UC Regents and an investigation into Tiffany’s complaint regarding Smith was never performed. (Compl., ¶ 30.)
On December 7, 2017, Smorodinsky sent an email to members of UC Regents’ range staff that indicated that Michael was not included as an instructor at the upcoming range training on December 10, 2017. (Compl., ¶ 31.) Past practice for range training was that all instructors attend scheduled range training. (Ibid.)
In December 2017, Tiffany received a subpoena from an attorney in relation to a criminal case involving a former UCSB-PD officer who was being investigated for sexual assault, providing alcohol to students, and other inappropriate conduct. (Compl., 32.) Tiffany notified Millard prior to and after speaking with the attorney. (Ibid.) After Tiffany met with the attorney, Tiffany told Millard that she told the truth regarding the former officer and, in response, Millard told Tiffany that she talked too much. (Ibid.)
On December 20, 2017, Michael submitted a training request to Pierce but, despite repeated inquiries and requests by Michael, Pierce did not take any action on the training request until March 27, 2018. (Compl., ¶ 33.)
On February 13, 2018, Michael met with Romero, who expressed that he was furious at Michael for reporting Smith, and Romero told Michael that Smith did not do anything wrong. (Compl., ¶ 34.)
In March 2018, Tiffany submitted a resume and participated in an interview for a Detective position within the Problem-Solving Unit supervised by Romero. (Compl., ¶ 35.) Two other individuals were also considered for the position and each of them had approximately three years of experience as an officer. (Ibid.) Tiffany had approximately eight years of experience as an officer, had attended search warrant and advanced investigations classes, and had received stellar reviews. (Ibid.) Romero selected an applicant for the position that was less qualified than Tiffany for the Detective position. (Ibid.) Tiffany asked Romero about what more the Problem-Solving Unit required from her in addition to extensive patrol experience, supervisory experience, experience training others, well written reports, and good performance reviews. (Ibid.) Romero informed Tiffany that Romero wanted to see more warrants from Tiffany. (Ibid.) Romero was aware that Tiffany missed time the previous year due to FMLA leave and that Tiffany’s leave directly affected how many warrants Tiffany wrote. (Ibid.)
In March 2018, Tiffany sent Millard a request to move her to E-schedule after recent openings, but Millard informed Tiffany that the department was not going to have a Corporal on E-schedule shift. (Compl., ¶ 36.) However, after shifts were changed, Millard placed a less senior Corporal on the E-schedule shift. (Ibid.) Tiffany was a senior Corporal and normally would have been among the first to request an open position. (Ibid.)
In April 2018, Romero expressed discontent over Tiffany’s reporting of misconduct by Smith. (Compl., ¶ 37.) Romero told Tiffany that he and Millard believed Tiffany throws a fit when Tiffany does not get what she wants. (Ibid.)
On May 11, 2018, Smorodinsky expressed to Tiffany that Smith’s misconduct was not that bad, and Tiffany responded that Smorodinsky did not have first-hand knowledge of the situation. (Compl., ¶ 38.) Smorodinsky asked Tiffany for examples of what she witnessed, and Tiffany provided several examples of Smith’s misconduct. (Ibid.) Smorodinsky told Tiffany that she should have gone to Smith directly instead of reporting Smith, to which Tiffany expressed that she went through the proper chain of command to report misconduct by a supervisor. (Ibid.) Following the conversation, Tiffany spoke with Sgt. Wilson and Sgt. Bly and explained that she was facing repercussions for reporting misconduct by Smith and that Smorodinsky told Tiffany that she should not have reported Smith’s misconduct. (Ibid.)
On May 12, 2018, Tiffany discovered that Smorodinsky had intentionally excluded Tiffany from assisting in an overtime assignment, by choosing less senior and less experienced officers to assist in executing a search warrant. (Compl., ¶ 39.)
On May 12, 2018, Tiffany was informed by Sgt. Wilson that Sgt. Wilson had informed Millard about Smorodinsky’s discontent and his discouraging her from making reports of misconduct in the future. (Compl., ¶ 40.) Millard did not investigate Smorodinsky’s conduct toward Tiffany. (Ibid.)
On June 13, 2018, Pierce sent out assignments for the quarterly active shooter training, but Michael was not assigned to either of the active shooter training days for the department. (Compl., ¶ 41.) In previous practice, all range instructors participated in this department training, and Michael was the only range instructor not assigned. (Ibid.)
In July 2018, Tiffany was not invited to participate or coordinate new hire post academy training, despite Tiffany creating, scheduling, and facilitating the training for the past several years. (Compl., ¶ 42.)
On August 15, 2018, Tiffany attended a union meeting and expressed discontent with Millard’s failure to address complaints, specifically Tiffany’s discontent was in relation to Millard’s handling of complaints by her about Smith’s misconduct and Millard’s handling of Smorodinsky’s conduct towards her. (Compl., ¶ 43.)
On August 16, 2018, Millard told Tiffany that he was upset about comments that were made about him at the union meeting held the previous night and said that he knew exactly what was said at the meeting. (Compl., ¶ 44.) Tiffany expressed that she felt the department failed to properly investigate Smith’s reported actions appropriately and that it was a failure of leadership to avoid proceeding with a proper investigation. (Ibid.)
On August 21, 2018, Farley issued memorandums for Corporal and Field Training Officer (FTO) positions that indicated plaintiffs were demoted from Corporal and FTO positions, while several other less experienced officers were promoted to Corporal and FTO positions at the same time. (Compl., ¶ 45.)
On September 1, 2018, Tiffany submitted an Ethics Point Incident complaint to the UCSB Local Designated Officer under the UC Whistleblower Protection Policy, and on September 3, 2018, Michael did the same. (Compl., ¶¶ 46, 47.)
On September 3, 2018, Smorodinsky and Romero denied Michael a Computer Forensic Analyst position despite Michael having been previously selected to fill that role during his time as a Detective and having 25 years of computer programming and software development experience in the technology industry. (Compl., ¶ 48.)
On September 17, 2018, Tiffany met with UC Regents’ Title IX office and expressed her concerns regarding her previous reports of Rothermel’s behavior to Smith that was ignored by UC Regents. (Compl., ¶ 49.) Tiffany also reported her concerns that Smith was engaged in a sexual relationship with a subordinate causing a hostile work environment and sexual harassment claims. (Ibid.)
On October 11, 2018, Tiffany was interviewed by a UCSB Senior Investigator regarding Tiffany’s whistleblower retaliation complaint. (Compl., ¶ 50.)
In September and October 2018, Pierce made assignments for the annual ROTC range training and Michael was not assigned. (Compl., ¶ 51.) Pierce did not send an email notifying the range staff of the assignment and made no notation on UC Regents’ calendar that a range activity was being assigned to other instructors. (Ibid.) Pierce, after being notified that Michael was short on hours due to a shift change, suggested that Michael work patrol rather than contribute to the range instruction. (Ibid.)
On November 27, 2018, Tiffany emailed Karen Kramer, an outside investigator hired by UC Regents, that since filing the whistleblower complaint, Tiffany has had her personal belongings thrown in the trash, her house had been egged, and sergeants had ignored Tiffany. (Compl., ¶ 52.) Since being interviewed by the investigator, no action has been taken to address plaintiffs’ complaints, nor has UC Regents done anything to protect plaintiffs from further retaliation. (Ibid.)
On January 14, 2019, Michael was instructed by Millard to make a bid for shift and vacation requests for the upcoming 2019 year. (Compl., ¶ 53.) Millard emailed a schedule to choose from and gave Michael only two hours to make the shift selection choices. (Ibid.) Millard’s schedule limited Michael’s choices and did not provide all shift slots available to Patrol Corporals, so Michael emailed Millard regarding the limited choices. (Ibid.) Millard dismissed Michael’s concerns regarding the limited choices. (Ibid.)
On January 25, 2019, Pierce emailed assignments for the Department range training instructors, which assigned Michael a single day of instruction of the five scheduled days. (Compl., ¶ 54.) Even after two more days of instruction were added because of inclement weather, Michael was assigned only that single day. (Ibid.)
On February 4, 2019, Tiffany was removed from working a previously approved overtime shift for February 6, 2019. (Compl., ¶ 55.) Tiffany was informed that Millard ordered her removal from the overtime shift. (Ibid.)
On March 13, 2019, Michael was informed of a complaint made against him by a co-worker, stating that Michael had turned around in a hallway at a UCSB-PD building, noticed his co-worker, and then turned around without saying anything. (Compl., ¶ 56.) The co-worker allegedly told his supervisors that he felt threatened and fearful by Michael’s action in ignoring him. (Ibid.)
UC Regents, and the individually named defendants, retaliated against plaintiffs based on plaintiffs’ reports of activities that would result in violation of, or noncompliance with, state or federal laws and regulations, including Penal Code section 424, Vehicle Code section 21055, Vehicle Code section 23104, Vehicle Code section 20002, and policies of UCSB-PD and UC Regents’ regarding nepotism. (Compl., ¶ 57.)
As relevant to the present motions, on February 16, 2021, defendants Olson, Farley, Romero, Pierce, and Smorodinsky (collectively the “individual defendants”) answered the complaint with a general denial and 27 affirmative defenses.
The individual defendants now move for summary judgment or, in the alternative, summary adjudication, to the complaint as to each plaintiff.
Plaintiffs oppose the motions.
Analysis:
Standard on Summary Judgment
A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable 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, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e 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.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)
“A defendant . . . has met his or her 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. 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.” (Code Civ. Proc., § 437c, subd. (p)(2).)
In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)
Role of Pleadings and Application of Law
“The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations.]” (Hutton, supra, 213 Cal.App.4th at p. 493.)
Separate Statement
“Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by 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.’ ” California Rules of Court, rule 3.1350(d)(2)4 states: “ ‘The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.’ ” Under the Rules of Court, “ ‘ “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.’ ” (Rule 3.1350(a)(2).)” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 874-875.)
“The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “ ‘The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ ” [Citation.]” (Beltran v. Hard Rock Hotel Licensing, Inc., supra, 97 Cal.App.5th at page 875.)
“The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.” (Beltran v. Hard Rock Hotel Licensing, Inc., supra, 97 Cal.App.5th at page 875, italics added.)
“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)
The individual defendants and the plaintiffs are all guilty of failing to strictly comply with the rules regarding separate statements, which has resulted in the court expending much more of its limited time in determining which facts are truly in dispute. All parties have evaded simply admitting facts that are clearly true, seek to improperly include additional details to the facts, and have improperly interjected legal argument and conclusions in their separate statement papers. Counsel is reminded that this is improper, and they should refrain from this unnecessary and unhelpful practice in the future.
Separate Statement as to Tiffany
As to Tiffany, the individual defendants submit a separate statement (SSUMF) containing 70 material facts they contend are undisputed. The first 14 material facts are entitled, “background facts.” (SSUMF, Nos. 1-14, p. 3, l. 15 – p. 6, l. 21.)
Material fact Nos. 15 through 54 are submitted as to: “Issue One: Mrs. Little’s first cause of action under the California Whistleblower Act (Cal. Govt. Code § 8547.10 [‘§8547.10’] fails against the Individual Defendants because these claims are based upon personnel management decisions that the Individual Defendants undertook, which cannot lead to individual liability as a matter of law.” (SSUMF, Nos. 15-54, p. 7, l. 1 – p. 25, l. 5.)
Material fact Nos. 15 through 54 are submitted as to: “Issue Two: Mrs. Little’s second cause of action for whistleblower retaliation under §1102.5 fails against the Individual Defendants because these claims are based upon personnel management decisions that the Individual Defendants undertook, which cannot lead to individual liability as a matter of law.” (SSUMF, Nos. 15-54, p. 7, l. 1 – p. 25, l. 5.)
Material fact Nos. 15-54 are submitted as to: “Issue Three: Mrs. Little’s first cause of action for whistleblower retaliation under §8547.10 fails against the Individual Defendants because even if Mrs. Little could state a prima facie case, clear and convincing evidence confirms that the Individual Defendants reasonably believed that all personnel actions they took in relation to Mrs. Little were justified by the evidence they had before them so they are entitled to judgment pursuant to §8547.10, subd. (d).” (SSUMF, Nos. 15-54, p. 7, l. 1 – p. 25, l. 5.)
Material fact No. 55 is submitted as to: “Issue Four: Mrs. Little’s second cause of action for whistleblower retaliation under §1102.5 fails against the Individual Defendants because this claim cannot be asserted against an individual defendant as a matter of law.” (SSUMF, No. 55, p. 25, ll. 6-17.)
Material fact No. 56 is submitted as to: “Issue Five: Mrs. Little’s first cause of action under §8547.10 fails against Farley and Pierce because Mrs. Little failed to name Farley or Pierce in her Whistleblower Complaint filed with UCSB-PD and thus failed to exhaust her internal administrative remedies against these defendants.” (SSUMF, No. 56, p. 25, l. 18 – p. 26, l. 8.)
Material fact Nos. 56 and 57 are submitted as to: “Issue Six: Mrs. Little’s second cause of action under §1102.5 fails against Farley and Pierce because Mrs. Little failed to name Farley or Pierce in her Whistleblower Complaint filed with UCSB-PD and thus failed to exhaust her internal administrative remedies against these defendants.” (SSUMF, Nos. 56-57, p. 25, l. 24 – p. 26, l. 17.)
In response to the SSUMF, Tiffany admits some facts, denies some facts, and objects to some facts. Tiffany also submits an additional 13 facts she contends are material to the disposition of the present motion.
In reply to Tiffany’s additional facts, the individual defendants admit some facts, deny some facts, and object to some facts.
Separate Statement as to Michael
As to Michael, the individual defendants submit a SSUMF containing 44 material facts they contend are undisputed. The first 11 material facts are entitled, “background facts.” (SSUMF, Nos. 1-11, p. 4, l. 1 – p. 6, l. 23.)
Material fact Nos. 12 through 40 are submitted as to: “Issue One: Mr. Little’s first cause of action under the California Whistleblower Act (Cal. Govt. Code §8547.10 [‘§8547.10’] fails because these claims are based upon personnel management decisions that the Individual Defendants undertook, which cannot lead to individual liability as a matter of law.” (SSUMF, Nos. 12-40, p. 6, l. 24 – p. 21, l. 22.)
Material fact Nos. 12 through 41 are submitted as to: “Issue Two: Mr. Little’s second cause of action for whistleblower retaliation under §1102.5 fails against the Individual Defendants because these claims are based upon personnel management decisions that the Individual Defendants undertook, which cannot lead to individual liability as a matter of law.” (SSUMF, Nos. 12-41, p. 7, l. 3 – p. 22, l. 6.)
Material fact Nos. 12-43 are submitted as to: “Issue Three: Mr. Little’s first cause of action for whistleblower retaliation under §8547.10 fails against the Individual Defendants because even if Mr. Little could state a prima facie case, clear and convincing evidence confirms that the Individual Defendants reasonably believed that all personnel actions they took in relation to Mr. Little were justified by the evidence they had before them so they are entitled to judgment pursuant to §8547.10, subd. (d).” (SSUMF, Nos. 12-43, p. 7, l. 3 – p. 22, l. 25.)
Material fact No. 44 is submitted as to: “Issue Four: Mr. Little’s second cause of action for whistleblower retaliation under §1102.5 fails against the Individual Defendants because this claim cannot be asserted against an individual defendant as a matter of law.” (SSUMF, No. 44, p. 22, l. 26 – p. 23, l. 9.)
In response to the SSUMF, Michael admits some facts and denies some facts. Michael also submits an additional 18 facts he contends are material to the disposition of the present motion.
In reply to Michael’s additional facts, the individual defendants admit some facts, deny some facts, and object to some facts.
Personnel Management Actions (Issues One, Two, and Three as to both Tiffany and Michael)
As the arguments regarding personnel management actions applies to both plaintiffs, and both causes of action, the argument will be analyzed concurrently for both motions.
The individual defendants argue that both causes of action are barred because all the alleged actions of the individual defendants were personnel actions. The argument is supported by self-serving declarations. Without substantially more, by way of admissible evidence, the argument is misplaced on summary judgment.
The relevant statute “places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718, italics added.)
Plaintiffs’ allegations, as supported by evidence provided by the individual defendants, is enough to show that there are triable issues of material fact as to whether the individual defendants, either separately or in conjunction with each other, engaged in retaliatory conduct, rather than good-faith personnel management actions, that at least contributed to adverse employment actions. The individual defendants do not deny that many of the employment actions plaintiffs allege to have occurred took place, and they have not proven by clear and convincing evidence that the actions would have been taken for legitimate, independent reasons even had the plaintiffs not engaged in protected activity. This conflict regarding reasoning and intent would almost necessary be required to be decided by a trier of fact, rather than decided as a question of law on summary judgment.
First Cause of Action for Violation of the California Whistleblower Protection Act
The first cause of action, asserted against all defendants, alleges violations of Government Code section 8547, et seq.
As the arguments pertain to both motions, the first cause of action will be analyzed concurrently for both motions unless otherwise specified.
“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.)
Government Code section 8547.10 provides in full:
“(a) A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with his or her supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. The complaint shall be filed within 12 months of the most recent act of reprisal complained about.
“(b) Any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a University of California employee, including an officer or faculty member, or applicant for employment for having made a protected disclosure, is subject to a fine not to exceed ten thousand dollars ($10,000) and imprisonment in the county jail for up to a period of one year. Any university employee, including an officer or faculty member, who intentionally engages in that conduct shall also be subject to discipline by the university.
“(c) In addition to all other penalties provided by law, 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. Punitive damages may be awarded by the court where the acts of the offending party are proven to be malicious. Where liability has been established, the injured party shall also be entitled to reasonable attorney’s fees as provided by law. However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer identified pursuant to subdivision (a), and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the regents. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months.
“(d) 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.
“(e) In any civil action or administrative proceeding, 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. If the supervisor, manager, or appointing power fails to meet this burden of proof in an adverse action against the employee in any administrative review, challenge, or adjudication in which retaliation has been demonstrated to be a contributing factor, the employee shall have a complete affirmative defense in the adverse action.
“(f) Nothing in this article shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or state law or under any employment contract or collective bargaining agreement.”
“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.
Triable Issues of Material Fact Pertaining to Tiffany and Michael
Importantly here, the individual defendants made a choice to file the two motions as joint motions.
“The summary judgment statute was amended in 1990 to restrict the summary adjudication remedy to motions that would adjudicate an entire cause of action or affirmative defense, or the issues of duty or punitive damages. Section 437c, subdivision (f)(1) (as amended in 1993) provides: “ ‘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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or 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.’ ”
The Legislature declared the purpose of the amendment to subdivision (f): “ ‘to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or defense.’ ” (Stats.1990, ch. 1561, § 1).” (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323.)
Several of the individual defendants’ arguments pertain to specific acts, or lack of action, on the part of certain defendants but not others. Even if the court were to find, as a matter of law, that there was merit to some of those arguments, granting summary adjudication as to one or more of the individual defendants, and not others, would subvert the purpose of the requirement that the summary adjudication completely dispose of a cause of action.
The individual defendants have failed to establish, by clear and convincing evidence, that the individual defendants did not act, either individually or in concert, in retaliation towards Tiffany and Michael as alleged in the complaint.
In fact, the individual defendants’ reply to the oppositions reinforces that there are triable issues of fact. As an example, the individual defendants argue: “The only way to impugn such a personnel management action is with evidence – not speculation and assumptions, but evidence – that the individual supervisor took the personnel action for nefarious reasons.” (Reply to Tiffany Opp., p. 3, ll. 22-24.) The argument does not have the effect that the individual defendants apparently intend. Rather, it demonstrates to the court that there is evidence to be weighed. Which, as explained above, is not proper on summary judgment.
Based on the foregoing, which is not exhaustive, there are triable issues of material fact as to the first cause of action for violation of Government Code section 8547.10 by the individual defendants. The individual defendants have not established that they are entitled to adjudication of this claim as a matter of law. The court will deny the individual defendants’ 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).)
Second Cause of Action for Violation of Labor Code Section 1102.5
As the arguments pertain to both motions, the second cause of action will be analyzed concurrently for both motions unless otherwise specified.
Labor Code section 1102.5 provides, in full:
“(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
“(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.
“(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.
“(d) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised their rights under subdivision (a), (b), or (c) in any former employment.
“(e) A report made by an employee of a government agency to their employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).
“(f) (1) In addition to other remedies available, an employer is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section to be awarded to the employee who was retaliated against.
“(2) In assessing this penalty, the Labor Commissioner shall consider the nature and seriousness of the violation based on the evidence obtained during the course of the investigation. The Labor Commissioner’s consideration of the nature and seriousness of the violation shall include, but is not limited to, the type of violation, the economic or mental harm suffered, and the chilling effect on the exercise of employment rights in the workplace, and shall be considered to the extent evidence obtained during the investigation concerned any of these or other relevant factors.
“(g) This section does not apply to rules, regulations, or policies that implement, or to actions by employers against employees who violate, the confidentiality of the lawyer-client privilege of Article 3 (commencing with Section 950) of, or the physician-patient privilege of Article 6 (commencing with Section 990) of, Chapter 4 of Division 8 of the Evidence Code, or trade secret information.
“(h) An employer, or a person acting on behalf of the employer, shall not retaliate against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any acts protected by this section.
“(i) For purposes of this section, “ ‘employer’ ” or “ ‘a person acting on behalf of the employer’ ” includes, but is not limited to, a client employer as defined in paragraph (1) of subdivision (a) of Section 2810.3 and an employer listed in subdivision (b) of Section 6400.
“(j) The court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.” (Italics added.)
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.
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 . . ..”].)
The individual defendants 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.”
Plaintiffs argue 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. Tiffany argues “[i]f ‘any person’ does not encompass individual supervisors, the 2014 amendment adds nothing to the law.” (Tiffany Opp., p. 9, ll. 4-5; .) Michael argues: “Because Labor Code § 1104 already establishes vicarious employer liability for the acts of agents, the 2013 amendment would be rendered meaningless surplusage if it added no individual liability beyond what already existed.” (Michael Opp., p. 10, ll. 8-10.)
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 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.
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.
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 the individual defendants that plaintiffs’ 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 the individual defendants. (Code Civ. Proc., § 437c, subd. (f)(1).) This ruling does not address this cause of action as to non-moving defendant UC Regents.
Identification of Farley or Pierce
The individual defendants’ final argument is that Tiffany’s claims against Farley and Pierce are barred by Tiffany’s failure to exhaust the required internal administrative complaint process because she did not identify Farley and Pierce as respondents when she filed her initial internal Whistleblower Complaint.
“A University of California employee, including an officer or faculty member, or applicant for employment may file a written complaint with his or her supervisor or manager, or with any other university officer designated for that purpose by the regents, alleging actual or attempted acts of reprisal, retaliation, threats, coercion, or similar improper acts for having made a protected disclosure, together with a sworn statement that the contents of the written complaint are true, or are believed by the affiant to be true, under penalty of perjury. The complaint shall be filed within 12 months of the most recent act of reprisal complained about.” (Gov. Code, § 8547.10, subd. (a).)
The individual defendants provide no authority that failure to specifically mention each and every individual by way of the initial written complaint bars an action against them. While in the FEHA context, Nazir v. United Airlines, Inc. (2009) 1778 Cal.App.4th 243, 266-268, is instructive. It explains that the complaint must be construed liberally in favor of the plaintiff and that if a reasonable agency investigation would have identified the correct parties, the complaint is good and exhausts the required administrative remedies.
Tiffany’s initial internal Whistleblower Complaint is attached as Exhibit 27 to the individual defendants’ Joint Appendix of Evidence in Support of their motions. The document is thorough and identifies, in an easy to follow fashion, the series of alleged events and actions. Any reasonable investigation would disclose any additional parties or events that led to the filing of the initial complaint. It is sufficient.
Further, as noted above, the individual defendants made the choice to file a joint motion. Granting summary adjudication in favor of Farley, Pierce, or both, would not completely dispose of any cause of action.
Requests for Judicial Notice
The individual defendants request that the court take judicial notice of the University of California Whistleblower Protection Policy, issued April 23, 2015, pursuant to Evidence Code sections 452 and 453. Plaintiffs have not objected to the request.
“ ‘Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.’ ” [Citation.]” (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)
The court will take judicial notice of the document.
Evidentiary Objections
The individual defendants object to nearly all evidence submitted by plaintiffs, as well as plaintiffs’ declarations and the attorney declarations.
“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 and considered all the individual defendants’ objections. As the rulings herein are the result of the individual defendants either failing to meet their initial burden regarding the first cause of action, or the defendants meeting their burden on the legal issue pertaining to the second cause of action, none of the evidence objected to was material to the disposition of this motion.