Frericks vs. City of Irvine

A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. A defendant seeking summary judgment meets the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action.

Code Civ. Proc. § 437c(p)(2); Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575. The scope of this burden is determined by the allegations of the plaintiff’s complaint. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 (pleadings serve as the outer measure of materiality in a summary judgment motion); 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 (respondent only required to defeat allegations reasonably contained in the complaint).

A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.

Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. Id. In making this determination, the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed. Villacres v. ABM Industries, Inc., 189 Cal.App.4th at 575. The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. Id.

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. Code Civ. Proc. §437c(f)(1). “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.” Id.

Discussion

First Cause of Action for Retaliation in Violation of Labor Code §1102.5(b) Under Labor Code § 1102.5, an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where 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. Lab. Code §1102.5(b).

The elements of a section 1102.5 retaliation cause of action are: (1) plaintiff engaged in a protected activity, (2) his/her employer subjected him/her to an adverse employment action, and (3) there is a causal link between the two. Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.

The standard for evaluating the parties’ evidence on these elements is statutory. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718. Labor Code section 1102.6 provides that:

In a civil action or administrative proceeding brought pursuant to Section 1102.5, 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.

Application – Protected Activity? Defendant contends that Plaintiff cannot show that her disclosures to management about safety and classification/pay issues were protected disclosures.

First, in its moving papers Defendant contends that Plaintiff’s disclosures are not protected under section 1102.5 because the issues were already known to management. But this does not matter. People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, 734. Plaintiff’s disclosures are protected even if others made the same disclosures before her. Id.

Second, Defendant objects that Plaintiff was not seeking to disclosure a violation of an applicable rule so much as she was just seeking a raise. But motivation does not count as long as the whistleblower has a reasonable suspicion that a violation of a constitutional, statutory or regulatory provision has occurred, his or

her motivation for reporting that conduct is irrelevant to whether the disclosure is a protected activity. Mize-Kurzman v. Marin Comm. College Dist. (2012) 202 Cal.App.4th 832, 850-852 (disapproved on other grounds by People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 C5th 719).

Finally, on the primary issue of whether Plaintiff’s disclosures simply about “internal personnel matters” and thus outside the ambit of section 1102.5, the court notes that until 2014 section 1102.5(b) protected disclosures of violations of state or federal statute or noncompliance or violation of a state or federal rule or regulation. See Labor Code §1102.5(b) effective January 1, 2004, to December 31, 2013.

As of 1/1/2014, however, section 1102.5(b) covers disclosures of a “violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” Lab. Code § 1102.5(b) (bold added).

The California cases cited by Defendant regarding “internal personnel procedures” -- Patten v. Grant Joint Union High Sch. Dist., 134 Cal.App.4th 1378 (2005) and Carter v. Escondido Union High Sch. Dist., 148 Cal.App.4th 922 (2007) – were decided before the statute was amended to add disclosures of violations of local rules and regulations. Similarly, the federal court case relied on by Defendant, Rodriquez v. Laboratory Corporation of America (C.D. Cal. 2022) 623 F.Supp.3d 1047, relies on Patten and Carter uncritically and contains no discussion or acknowledgement of the ramifications of the amendment to the statute.

At least as to the pay/classification issues, Plaintiff’s disclosure was that she was being required to work hours and teach classes that fell outside her job description without additional compensation or change in title, which she has contends she reasonably believed violated the City’s Personnel Rules. [See Lazarski Decl. (ROA #49), Ex. A (Plaintiff Depo.) at 77-80; Taylor Decl. (ROA #26), Ex. 9.]

The court finds that there is a triable issue of fact whether Plaintiff made disclosures protected under Labor Code §1102.5(b).

Contributing Factor As noted above, Plaintiff’s burden is to make a showing, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in her termination. “This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 713–714. In a mixed-motives case, the

plaintiff meets that burden, because there is at least one illicit motive that affected the decision. Lampkin v. County of Los Angeles (2025) 112 Cal.App.5th 920, 929.

The federal Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) (18 U.S.C. § 1514A(b)(2)(A)) — which was enacted shortly before the Legislature enacted section 1102.6 — contains a nearly identical burden-shifting framework for the adjudication of whistleblower cases. Id. 12 Cal.5th at 715. “The ordinary meanings of the words “contribute” and “factor” suggest that the phrase “contributing factor” is broad indeed. See Webster’s New World College Dictionary 317 (4th ed. 1999) (defining “contribute,” in the relevant sense, to mean “to have a share in bringing about (a result); be partly responsible for”); id., at 508 (defining “factor” as “any of the circumstances, conditions, etc. that bring about a result”).” Murray v. UBS Securities, LLC (2024) 601 U.S. 23, 37. It does not matter whether the employer was motivated by retaliatory animus. Id. 601 U.S. at 35.

Plaintiff first raised the issue of pay versus performance in October 2023, first with her supervisor Laura Murphy and then in a meeting with HR. [Taylor Decl., Ex. 1 (Plaintiff Depo.) at 69:11-72:19, 72:13- 19 77:10 – 79:16, 77:22-80:19, 79:8 – 82:5, 82:20 – 84:15, 86:8 – 88:23 and Ex. 6.] From here, there was back and forth communication between Plaintiff and the City about her required duties and pay/classification, with the City ultimately on 2/16/24 denying Plaintiff any re-classification or pay raise. [Taylor Decl., Exs. 7-11; Lazarski Decl. (ROA #49), Ex. 1 (Plaintiff Depo.) at ex. 8.]

A month later, on or about 3/13/24, Plaintiff was terminated. [Sep. Statement no. 28; Taylor Decl., Ex. 3 (Deposition of Laura Murphy) at 116:18 – 118:23.] This timing alone raises an inference of causation. Zirpel v. Alki David Productions, Inc. (2023) 93 Cal.App.5th 563, 578 (“We reject [the] claim that this evidence is insufficient because it is based solely on the “temporal proximity” between Zirpel’s disclosure and his termination. . . . Temporal proximity alone, ‘when very close, can in some instances establish a prima facie case of retaliation.’”) (citations omitted).

Plaintiff also points to evidence of Plaintiff’s supervisor’s reactions to her position:

“I couldn’t help but take it personally because I had been advocating just the same.” [Lazarski Decl. Ex. (Murphy Depo.) at 102:9-10, see also 99:2- 103:12.] Q. Okay.· When, in relation to this November 30th, 2023, conversation with Ms. Frericks, did you make the decision that she needed to be terminated?

A. I believe that was December -- no. More like January, February. [Murphy Depo at 103:8-12.]

Ms. Murphy’s March 12, 2024, email to Cory Hildebrand expressly states, regarding the discussions about Plaintiff’s assignments versus classification and pay: “Mary Ann’s response reflects insubordination on spring quarter class instruction assignments.” [Murphy Depo at 71:10-73:2 and ex.

4.

On this evidence, a trier of fact could find that Plaintiff’s disclosures were a contributing factor in the decision to terminate her.

Plaintiff also points to a number of other circumstances that support an inference that her complaints about classification/pay were a contributing factor in the decision to terminate her. [See Opp. (ROA #45) at 15-16.]

Accordingly, the court finds that there is a triable issue of fact whether Plaintiff’s disclosures were a contributing factor in the decision to terminate her.

Same-Decision This shifts the burden to Defendant to establish that, regardless of Plaintiff’s disclosures, it would have made the same decision. Again, this must be done with “clear and convincing” evidence. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718. See Lampkin v. County of Los Angeles (2025) 112 Cal.App.5th 920, 924.

While courts have determined this issue on summary judgment, the record here does not support that. See Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 386 (“[W]e conclude that the County’s undisputed evidence would require a reasonable factfinder to find it “highly probable” that the County’s decision to release Vatalaro from probation would have occurred for legitimate, independent reasons even if Vatalaro had not complained about working on low-level assignments. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012, 266 Cal.Rptr.3d 329, 470 P.3d 41 [discussing appellate review of findings made under the clear-andconvincing evidence standard].) We find, that is, that the County presented sufficient undisputed evidence to satisfy its burden under section 1102.6 on summary judgment.”).

In Valero, the defendant contended it terminated the plaintiff for insubordination and dishonest – and the plaintiff did not dispute the alleged acts of dishonesty and insubordination. 79 Cal.App.5th at 381, 385, 386.

In contrast, here, while Defendant points to a number of actions by Plaintiff to justify her termination, Plaintiff disputes each one. [Compare Motion MPA (ROA #26) at 11-12 with Opp. (ROA #45) at 17-20; Sep. Statement nos.28-27 and evidence cited there.]

Unavoidably, there is a triable issue of fact whether Defendant would have made the same decision as to Plaintiff’s employment in the absence of her disclosures about classification and pay. Accordingly, Defendant’s motion is denied.

8. 2024-1379301 The unopposed Motion for Summary Judgment brought by Defendant Galvez vs. Ronaldo Roque, M.D. is granted. Roque “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1571.)

In a medical malpractice action, it has consistently been held that “a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances.” (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of the layman.” (Id. at p. 410.)

Thus, in the context of medical malpractice, “[w]hen a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 985; See also Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412; and Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.)

In seeking summary judgment, Defendant offers the undisputed declaration of Richard Cho, M.D., a licensed physician, board- certified in internal medicine, with nearly 30 years of experience. (¶1- ¶2 of Cho Declaration.) Dr. Cho declares he has practiced in Southern California since 2006, as a Hospitalist and is “familiar with the standard of care applicable to hospitalists such as Dr. Roque, in