Filed 7/28/23 Gonzalez v. County of Los Angeles CA2/2

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

AUSTREBERTO GONZALEZ,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent.

 B317794

 (Los Angeles County

 Super. Ct. No.

 20STCV35594)

 

APPEAL from a judgment of the Superior Court of 

Los Angeles County. William F. Fahey, Judge. Affirmed.

Alexander Morrison + Fehr, Tracy L. Fehr; Romero Law, 

Alan Romero and Edward Wells for Plaintiff and Appellant.

Miller Barondess, Mira Hashmall, Eleanor S. Ruth and 

Jamil M. Aslam for Defendant and Respondent.

_____________________________________
2

Austreberto Gonzalez (plaintiff) is a Los Angeles County 

sheriff’s deputy. Plaintiff appeals from the judgment entered in 

favor of his employer, the County of Los Angeles (the County). 

Plaintiff’s operative second amended complaint asserts causes of 

action against the County for whistleblower retaliation (Lab. 

Code, §1102.5) and for violations of the Fair Employment and 

Housing Act (FEHA) (Gov. Code, § 12900 et seq.1) and the Tom 

Bane Civil Rights Act (Bane Act) (Civ. Code, § 52.1). The second 

amended complaint stems from alleged incidents of

discrimination, workplace harassment, and retaliation by fellow 

deputies and supervisors. Three causes of action were dismissed 

on demurrer. The others were limited to a time period not barred 

under Government Code section 911.2 and decided against 

plaintiff on summary judgment. Plaintiff challenges the rulings 

on the demurrer and the summary judgment motion, as well as 

those on discovery issues and costs. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts

Plaintiff was hired as a deputy sheriff by the County in 

November 2007. He was assigned to the Compton station in 

January 2015. Plaintiff was divorced and the father of a 

daughter. She has serious health issues. Plaintiff’s work 

schedule coincided with his court-ordered visitation. He was 

therefore able to care for his daughter’s medical needs.

In 2016, plaintiff began to experience a series of job-related 

incidents at the Compton station. He attributed the incidents to 

his refusal to join a deputy gang known as the Executioners. 

1 Undesignated statutory references refer to the 

Government Code.
3

First, Deputy Jaime Juarez, the deputy in charge of shift 

scheduling, refused to allow plaintiff to keep his current work 

schedule. Plaintiff had no choice but to take CFRA/FMLA leave 

to care for his daughter.2 According to plaintiff, Deputy Jaime 

Juarez is a leader of the Executioners.

In 2017, plaintiff was reprimanded and placed on traffic 

duty after he protested an “illegal quota program” for 

misdemeanor arrests favored by the deputy gang.

In June or July 2019, plaintiff submitted a formal request 

to leave the Compton station for the Pico Rivera station. It was 

placed on hold while one of his traffic stops was being 

investigated.

In October 2019, plaintiff became a field training officer 

(FTO). He was assigned his first trainee for three months and 

received a bonus.

In early February 2020, plaintiff’s friend, Deputy Thomas 

Banuelos, got into a fistfight with another deputy at the Compton 

station. Banuelos told plaintiff about the fight. The other deputy 

2 The California Family Rights Act of 1993 (CFRA), 

Government Code section 12945.2, entitles eligible employees to 

take up to 12 unpaid workweeks in a 12-month period for family 

care and medical leave to care for their children, parents, or 

spouses, or to recover from their own serious health condition. 

The CFRA closely parallels its federal counterpart, the Family 

and Medical Leave Act of 1993 (FMLA) (29 U.S.C. § 2601 et seq.), 

which also provides that an eligible employee “shall be entitled to 

a total of 12 workweeks of leave during any 12-month period” 

due, among other things, to “a serious health condition that 

makes the employee unable to perform the functions of the 

position of such employee.” (29 U.S.C. § 2612(a)(1)(D).)
4

was known to be an Executioner. Plaintiff called the internal 

affairs bureau and reported the fight anonymously.

Master FTO Saul Romero had plaintiff select a new trainee 

at the training academy. While there, plaintiff was told the 

Executioners knew he had reported the fistfight to internal 

affairs. Plaintiff feared reprisals from the deputy gang. He was 

given time off work. While at home, plaintiff received a text 

message from another deputy, who was also a friend. The text 

message included a photograph of graffiti at the Compton station. 

The graffiti read: “ ‘ART IS A RAT.’ ” Plaintiff took more time 

off.

Later, plaintiff was interviewed twice about the fistfight by 

a special detail of investigators.

Plaintiff returned to the station in late February. He was 

called into the office of Sergeant Frank Barragan and relieved of 

his FTO position. Plaintiff signed a memorandum that he 

“currently [has] FMLA submitted and approved,” was “unable to 

fully dedicate” himself to his FTO position, and his “family 

requires [his] undivided attention.” Plaintiff’s previously selected 

trainee was taken from him.

Plaintiff asked his captain to be transferred to the Pico 

Rivera station. He was still fearful. The captain said she could 

immediately transfer him to the East Los Angeles station, but 

not to Pico Rivera. Plaintiff declined.

In mid-March to early April 2020, plaintiff was working the 

day shift. Sergeant Barragan asked if plaintiff could switch to 

the graveyard shift in exchange for his choice of days off. 

Plaintiff declined. The shift change would prevent him from 

caring for his disabled daughter.
5

On March 26, 2020, plaintiff was deprived of one hour of 

overtime pay that had not been preapproved.

Plaintiff began receiving excessive calls for service 

whenever a deputy gang member was working dispatch. Other 

deputies would not partner with plaintiff because he was an 

Executioners’ target.

In March or April, plaintiff agreed to be “on loan” to the 

detective bureau to file cases at the courthouse.

Plaintiff was passed over for the position of watch deputy, 

which he believed was to have gone to him. The deputy who was 

awarded the position was unqualified and an Executioners 

member.

On August 20, 2020, a dead rat was left at the home of 

plaintiff’s friend, Deputy Banuelos. Plaintiff was frightened, 

fearing it was also a threat to him.

On or about August 30, 2020, Sheriff Alex Villanueva 

identified plaintiff by name during a news interview and said 

plaintiff was not a whistleblower.

In September 2020, the administrative investigation into 

plaintiff’s traffic stop was completed and he received a written 

reprimand. Plaintiff was then transferred to the Pico Rivera 

station, where he is still assigned, but on medical leave.

II. Proceedings

Plaintiff filed a government claims letter, which was 

largely rejected as untimely. Months later, he filed an

administrative complaint with and received a right-to-sue letter

from the Department of Fair Employment and Housing under

FEHA.

Plaintiff initiated this suit in September 2020. After

stipulated extensions to file amended complaints, the second
6

amended complaint became the operative complaint.3 It alleged

six causes of action for damages, four of which are claims under 

the FEHA: (1) associational disability discrimination (Gov. Code, 

§§ 12926, subd. (o), 12940, subd. (a)); (2) harassment and/or 

hostile work environment (id., §§ 12923, 12926, subd. (o)); 

(3) workplace retaliation (id., § 12940, subd. (h)); and (4) failure 

to prevent retaliation (id., § 12940, subd. (h)). The fifth cause of 

action alleged whistleblower retaliation (Lab. Code, § 1102.5). 

The sixth cause of action alleged a violation of the Bane Act (Civ. 

Code, § 52.1).

Following the County’s demurrer, three causes of action 

remained in the second amended complaint: workplace 

retaliation and failure to prevent retaliation under FEHA and 

whistleblower retaliation under Labor Code section 1102.5. The 

trial court found the causes of action rested on many alleged 

events that were time-barred. The events had occurred years 

before plaintiff’s submission of his government claims letter. 

(Gov. Code, § 911.2.) The court limited plaintiff’s remaining 

causes of action to alleged events that were timely—specifically 

his February 2020 report of the fight between two deputies and 

allegations of subsequent retaliation. The court declined to allow 

plaintiff leave to amend.

3 In response to the County’s demurrer to the second 

amended complaint, rather than file opposition, plaintiff

attempted to file an unauthorized third amended complaint. The 

trial court dismissed the County’s unopposed demurrer without 

leave to amend and dismissed the case. Later the court granted 

plaintiff’s motion for relief from dismissal and considered his late 

opposition to the demurrer.
7

The parties stipulated to a protective order, which the court 

signed on June 25, 2021.

On July 29, 2021, the County moved for summary 

judgment, or alternatively, summary adjudication of issues.

On August 21, 2021, plaintiff moved to compel the County’s 

responses to written discovery and for an in-camera review of law 

enforcement personnel records pursuant to Pitchess v. Superior 

Court (1974) 11 Cal.3d. 531 (Pitchess). Within the week, plaintiff

filed an ex parte application to continue the summary judgment 

hearing for further discovery. On September 20, 2021, plaintiff

filed a motion to compel the deposition testimony of Deputy 

Jaime Juarez.

On September 23, 2021, the trial court denied plaintiff’s 

first motion to compel except for one interrogatory response. The 

court denied the Pitchess motion and the application to continue 

the summary judgment hearing. Days later, plaintiff filed his 

opposition to the summary judgment motion.

On October 8, 2021, the trial court advanced the motion to 

compel Juarez’s deposition and took it off calendar because 

plaintiff had failed to provide the court with a courtesy copy.

Following a hearing in November 2021, the trial court 

granted summary judgment for the County.

Shortly thereafter, the County filed a memorandum of 

costs, and plaintiff moved to strike costs. Ultimately, the court 

awarded costs to the County in the amount of $13,943.

Plaintiff timely filed an appeal in which he contests most of 

the trial court’s rulings. We discuss each ruling in turn.
8

DISCUSSION

I. Sustaining the Demurer to the Second Amended

Complaint

A. Applicable Law and Standard of Review

A general demurrer challenges whether the allegations of a

complaint are sufficient to state a cause of action. (Code Civ.

Proc., § 430.10, subd. (e); SLPR, L.L.C. v. San Diego Unified Port

Dist. (2020) 49 Cal.App.5th 284, 316.) In opposing a demurrer,

“the plaintiff must show the complaint alleges facts sufficient to

establish every element of each cause of action.” (Rakestraw v.

California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) In

assessing the sufficiency of the allegations, the trial court must

accept the truth of all material facts properly pleaded, but not

contentions, deductions, or conclusions of fact or law, and may

also consider matters that may be judicially noticed. (SLPR,

supra, 49 Cal.App.5th at p. 316.)

Our review is de novo. We independently determine

whether the operative pleading states a cause of action as a

matter of law. We give “the complaint a reasonable

interpretation, reading it as a whole and its parts in their

context.” (Stearn v. County of San Bernardino (2009) 170

Cal.App.4th 434, 439.) We review the trial court’s result for

error, not its legal reasoning. (Mendoza v. Town of Ross (2005)

128 Cal.App.4th 625, 631.)

The second amended complaint is far from a model

pleading. Instead of stating the elements for each cause of action

and the factual allegations to support them, plaintiff includes
9

irrelevant information,4 adopts a shotgun pleading format,5 and

in numerous instances, relies on conclusions rather than factual

allegations.6 Indeed, the second amended complaint is peppered

4 For example, the second amended complaint describes at 

length the genesis and impact of the “illegal arrest quotas” and 

the on-duty interaction between other deputies and supervisors 

unrelated to plaintiff’s claims.

5 “Shotgun pleadings are pleadings that overwhelm 

defendants with an unclear mass of allegations and make it 

difficult or impossible for defendants to make informed responses 

to the plaintiff’s allegations. They are unacceptable.” (Sollberger 

v. Wachovia Securities, LLC (C.D.Cal. June 30, 2010, No. SACV 

09-0766) 2010 U.S. LEXIS 66233, *11 [2010 WL 2674456]); 

Mason v. County of Orange (C.D.Cal. Aug. 19, 2008, No. SACV 

08-0235) 251 F.R.D. 562, 563–564.) For example, the first, third, 

and fifth causes of action set forth a laundry list of adverse 

employment actions attributed to the County: Plaintiff was 

“(1) asked impermissible non-job-related questions; (2) demoted; 

(3) denied any employment benefit or privilege; (4) denied family 

care or medical leave (CFRA); (5) denied hire or promotion; 

(6) denied or forced to transfer; (7) denied work opportunities or 

assignments; (8) reprimanded; and/or (9) being subjected to a 

threat of being murdered for being a witness to illegal acts and 

protesting same.” The second amended complaint’s “Factual 

Allegations” section and fifth cause of action set forth numerous 

provisions of the sheriff’s department Manual of Policies and 

Procedure and local, state, and federal laws or regulations 

unencumbered by any explanation as to their substance or how 

they pertain to the alleged causes of action.

6 For example, the second amended complaint alleges the 

Compton station “has been permeated by a violent Deputy gang 

which calls itself ‘The Executioners,’ ” and “operate[s] . . . with 

impunity, its members use violence against other Deputies and 

members of the public in order to increase their standing within 
10

with years of allegations detailing a litany of events and acts,

with virtually no effort to specify the facts that support each

cause of action.

B. Section 911.2 Limitation of the Government

Claims Act and the Continuing Violation

Doctrine

Based on the six-month time limitation in section 911.2, 

subdivision (a) of the Government Claims Act (§ 810 et seq.), the 

trial court ruled that plaintiff was barred from pursuing any 

causes of action based on misconduct predating December 16, 

2019—six months before the submission of the Government 

Claims letter with the County.7

Section 911.2 requires a plaintiff to present a claim for 

money or damages to a public entity as a condition precedent to 

pursuing a lawsuit. As relevant here, personal injury claims 

must be presented no later than six months after the accrual of 

the cause of action or be barred. (§ 911.2, subd. (a);8 Willis v. City 

of Carlsbad (2020) 48 Cal.App.5th 1104, 1118.)

the criminal organization.” The complaint further alleged the 

County engaged in a “Sham Investigation” of his reports to the 

internal affairs bureau without supporting facts.

7 Although the government claims letter was filed on 

June 23, 2020, the trial court used June 16, 2020, the date 

plaintiff signed the letter, to compute the six-month period.

8 Section 911.2, subdivision (a) reads: “A claim relating to 

a cause of action for death or for injury to person or to personal 

property or growing crops shall be presented as provided in 

Article 2 (commencing with Section 915) not later than six 

months after the accrual of the cause of action. A claim relating 

to any other cause of action shall be presented as provided in 

Article 2 (commencing with Section 915) not later than one year 
11

The parties agree that Government Code section 911.2 

should not have been applied to the FEHA causes of action. 

However, plaintiff wrongly claims FEHA’s current three-year 

limitation, rather than FEHA’s one-year limitation then in effect,

applies. The FEHA causes of action were limited to actionable 

allegations arising from conduct occurring September 15, 2019, to 

September 15, 2020. (Gov. Code, § 12960, former subd. (d);

Pollack v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 

918, 929.) The causes of action for violation of Labor Code section 

1102.5 and the Bane Act were limited to actionable allegations 

arising from conduct occurring after December 16, 2019.

In any event, a complaint must allege facts that 

demonstrate timely presentation of a claim or that belated 

presentation is excused to avoid being subject to a demurrer for 

failure to state a cause of action. (Willis v. City of Carlsbad, 

supra, 48 Cal.App.5th at p. 1119; see also Acuna v. San Diego 

Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1415 [affirming 

order sustaining a demurrer and holding “the continuing 

violations doctrine is inapplicable” to a disability discrimination 

claim].)

after the accrual of the cause of action.” Section 901 provides 

that “[f]or the purpose of computing the time limits prescribed by 

Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of 

a cause of action to which a claim relates is the date upon which 

the cause of action would be deemed to have accrued within the 

meaning of the statute of limitations which would be applicable 

thereto if there were no requirement that a claim be presented to 

and be acted upon by the public entity before an action could be 

commenced thereon.”
12

Plaintiff invoked the continuing violation doctrine in the 

second amended complaint as a basis for asserting his allegations 

were not time-barred. Putting aside the initial claim 

presentation deadlines of section 911.2 and FEHA, the question 

is whether the continuing violation doctrine applies to salvage 

the misconduct plaintiff alleged to have occurred in 2016 and 

2017. The continuing violation doctrine “allows liability for 

unlawful . . . conduct occurring outside the statute of limitations 

if it is sufficiently connected to unlawful conduct within the 

limitations period.” (Richards v. CH2M Hill, Inc. (2001) 26

Cal.4th 798, 802 (Richards); see also Yanowitz v. L’Oreal USA, 

Inc. (2005) 36 Cal.4th 1028, 1056.)

For the continuing violation doctrine to apply, the plaintiff 

must show (1) the misconduct occurring within the limitations

period is similar in kind to the misconduct that falls outside the

period; (2) the misconduct was reasonably frequent; and (3) it had

not yet acquired a degree of permanence. (Richards, supra, 26

Cal.4th at p. 823.) “Permanence” in this context means that an 

employer’s actions make clear to a reasonable employee that any

further efforts to end the alleged unlawful conduct will be futile, 

or the employer “mak[es] clear to the employee in a definitive 

manner” that the employee’s requests have been rejected. (Ibid.)

The earlier misconduct claimed by plaintiff consists of 

being refused certain days off by Deputy Juarez for scheduled 

childcare in 2016 and being reprimanded and transferred to 

traffic duty in 2017 after protesting the arrest quotas. We need 

not address whether these acts, while different in kind, are 

sufficiently closely related to constitute a continuing violation of 

the acts claimed within the one year (FEHA) or six months 

(§911.2). (Dominguez v. Washington Mutual Bank (2008) 168 
13

Cal.App.4th 714, 722.) Neither alleged act acquired a degree of 

permanence to preclude the application of the continuing 

violation doctrine. According to the second amended complaint, 

plaintiff was reassigned to an FTO position in October 2019. In 

2020, plaintiff was offered his choice of days off if he accepted the 

graveyard shift, which he turned down. And plaintiff was never 

denied his requested days off in 2020, and he continued to receive 

his intermittent CFRA/CMLA leave. We agree with the trial 

court in rejecting the application of the continuing violation 

doctrine.

C. Causes of Action: Elements and Sufficiency of

the Allegations

Plaintiff argues the trial court erroneously ruled his causes 

of action for associational disability discrimination and violation 

of the Bane Act did not withstand demurrer.9 We disagree.

1. Associational disability discrimination

Plaintiff’s first cause of action is for associational disability 

discrimination. It is an unlawful employment practice under the 

FEHA to discriminate against any person because of a physical or 

mental disability. (§ 12940, subd. (a).) Associational disability 

discrimination prohibits discrimination against persons who are 

so closely associated with a disabled person that they are, in 

effect, disabled for purposes of employment under FEHA. 

(Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 

Cal.App.5th 1028, 1036 (Castro-Ramirez).) A prima facie case 

based on associational disability discrimination requires a 

showing that: “(1) the plaintiff suffered from a disability, (2) the 

9 Plaintiff does not contest the dismissal of the cause of 

action for harassment and/or hostile work environment.
14

plaintiff was otherwise qualified to do his or her job, with or 

without reasonable accommodation, and (3) the plaintiff was 

subjected to adverse employment action because of the 

disability.” (Id. at p. 1037.) Under the third element, “the 

disability must be a substantial factor motivating the employer’s 

adverse employment action.” (Ibid.; see Castro-Ramirez, supra, 

at pp. 1042–1043 [holding that an employee had associational 

disability claim for being terminated after requesting scheduling 

accommodations to administer daily dialysis to his disabled son]; 

Rope v. Auto-Chlor System of Washington, Inc. (2013) 220

Cal.App.4th 635, 642 (Rope) [holding that an employee had a 

claim for associational disability discrimination after he was fired 

for requesting time off to donate a kidney to his ailing sister].) In 

addition, effective January 1, 2016, section 12940, subdivision 

(m)(2) prohibits an employer from discriminating or retaliating 

against an employee for requesting accommodation for 

associational disability, “regardless of whether the request was 

granted.”

The gravamen of this cause of action appears to be that 

plaintiff was being discriminated against because Deputy Juarez 

denied plaintiff his original childcare schedule. Plaintiff was not 

fired, unlike the Castro-Ramirez and Rope plaintiffs. Instead, 

plaintiff received the CFRA/FMLA leave to which he was 

entitled. This is not an adverse employment action.

Plaintiff alleges his association with his disabled daughter 

was a “substantial factor” in subjecting him to one or more of 

nine adverse employment actions. However, no supporting facts 

are alleged demonstrating “a causal link” between plaintiff’s 

taking leave to care for his daughter and any of the assorted
15

adverse actions he alleges. The cause of action for associational 

disability discrimination fails as a matter of law.

2. Bane Act violation

The sixth cause of action is based on an alleged violation of 

Civil Code section 52.1, known as the “Tom Bane Civil Rights 

Act.” The Bane Act provides a private cause of action for “[a]ny 

individual whose exercise or enjoyment of rights secured by the 

Constitution or laws of the United States, or of rights secured by 

the Constitution or laws of this state, has been interfered with, or 

attempted to be interfered with” by a person “whether or not 

acting under color of law,” who uses “threat, intimidation, or 

coercion.” (Civ. Code, § 52.1, subds. (a)–(c).)

“The essence of a Bane Act claim is that the defendant, by

the specified improper means (i.e., ‘threats, intimidation, or

coercion’), tried to or did prevent the plaintiff from doing

something he or she had the right to do under the law or to force

the plaintiff to do something that he or she was not required to do

under the law.” (Austin B. v. Escondido Union School Dist.

(2007) 149 Cal.App.4th 860, 883.) A violation of the Bane Act

does not require any discriminatory animus. (Venegas v. County

of Los Angeles (2004) 32 Cal.4th 820, 843.)

The specific allegations plaintiff states as the basis for his

Bane Act cause of action are that County employees threatened

“to murder [him].” The only bases for that allegation were the

“ART IS A RAT” graffiti written on the entry gate key pad while

plaintiff was off work and the dead rat delivered to a fellow

deputy and friend. (Nothing in the second amended complaint

states why the rat was not presumed to have died either of

natural causes or as the victim of a nonhuman animal.) In any

event, there was no factual allegation of any physical threat,
16

intimidation, or coercion made directly against plaintiff by

anyone. A plaintiff must be personally threatened; there is no

derivative liability for individuals who are not present and

witnessing the actionable conduct. (Bay Area Rapid Transit Dist.

v. Superior Court (1995) 38 Cal.App.4th 141, 144 [Bane Act is

“limited to plaintiffs who themselves have been the subject of

violence or threats”].)

Even assuming the graffiti and dead rat amounted to a

sufficient threat of murder as plaintiff argues, nowhere does the 

second amended complaint identify the violation of rights 

amenable to Bane Act enforcement. Instead, there is only a 

general reference to plaintiff’s “protected whistleblowing 

activities” and his “protest[s]” about FEHA violations by the 

County. Because the Bane Act cause of action “is based on 

statute, the general rule that statutory causes of action must be 

pleaded with particularity is applicable.” (Lopez v. Southern Cal.

Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) “ ‘[T]he plaintiff 

must set forth facts in his complaint sufficiently detailed and 

specific to support an inference that each of the statutory 

elements of liability is satisfied. General allegations are 

regarded as inadequate.’ ” (Shields v. County of San Diego (1984) 

155 Cal.App.3d 103, 112.) Accordingly, plaintiff’s Bane Act cause 

of action fails as a matter of law.

D. The Court’s Time Limitation on the Remaining

Causes of Action

Plaintiff asserts the trial court committed reversible error 

by limiting the three remaining causes of action to include only 

timely allegations. This was improper, plaintiff argues, because 

a demurrer does not lie to part of a cause of action. (Cornejo v.

Lightbourne (2013) 220 Cal.App.4th 932, 944.)
17

Plaintiff did not raise this argument in the trial court. It has 

thus been forfeited on appeal. (See Thompson v. Ioane (2017) 11 

Cal.App.5th 1180, 1191–1192 [forfeiture applied to plaintiff’s argument 

not raised in opposition to demurrer]; Wittenberg v. Bornstein

(2020) 51 Cal.App.5th 556, 567–568 [finding courts are not 

required, and may properly decline, to consider arguments not 

raised in demurrer even if based on purely legal questions].)

Nonetheless, we note the alleged 2016 and 2017 events did 

not survive the continuing violation doctrine. The trial court’s 

limitation of the remaining causes of action to plaintiff’s report of 

the fight in 2020 was in keeping with the timeline of actionable 

events from February to September 2020 and did not prejudice 

plaintiff.

E. Denial of Leave to Amend

Leave to amend a complaint is entrusted to the sound 

discretion of the trial court, and “ ‘ “[t]he exercise of that 

discretion will not be disturbed on appeal absent a clear showing 

of abuse.” ’ ” (Branick v. Downey Savings & Loan Assn. (2006) 39 

Cal.4th 235, 242.) Plaintiff argues the trial court abused its 

discretion in denying him leave to amend because an amendment 

would clear up the court’s “confusion as to timing and the

connection between protected activities and adverse actions.”

At the hearing on the demurrer, plaintiff urged that he 

should be given leave to amend to add a claim that he was a 

victim of racial discrimination under FEHA. Plaintiff argued 

that, as a Hispanic, he was the victim of racial discrimination by 

a predominantly Hispanic gang, who had targeted him because 

he had refused to join his fellow Hispanics. The court pointed out 

that plaintiff had not included this theory in his government 

claim letter or administrative complaint or in previously filed 

pleadings. 
18

In denying leave to amend, the trial court remarked that 

plaintiff already attempted to file four complaints with no 

substantive changes. The court added that allowing another 

opportunity to amend would be futile because plaintiff failed to 

show the dismissed causes of action could be amended to state 

viable claims.

II. Discovery Motions

Plaintiff next disputes the correctness of the denial of his

motions to compel production of written discovery and Deputy 

Juarez’s deposition testimony. He also contests the denial of his 

Pitchess motion, which we discuss separately. We perceive no 

error.

A. Additional Background

The parties engaged in several rounds of discovery. 

Plaintiff propounded extensive written discovery to the County. 

Between June and August 2021, the parties exchanged “meet and

confer” e-mails and letters concerning the County’s responses and

objections to the written discovery. In the meantime, on July 9,

2021, plaintiff’s counsel sent a letter to the County to coordinate

proposed video-deposition dates for 19 employees of the sheriff’s

department, including then-Sheriff Alex Villanueva. Plaintiff’s

counsel stated the depositions were to be used in five named

cases that were pending against the County. On July 19, 2021,

the County’s counsel e-mailed plaintiff’s counsel, rejecting the

proposal. She asked him to designate the depositions he was

noticing for the instant case only and agreed to follow up with

available dates. Plaintiff’s counsel stated he wanted all 19

depositions, the County’s counsel began scheduling them, with
19

the exception of the apex depositions of the sheriff and

undersheriff.10

After taking plaintiff’s video deposition in June, the County

filed a motion for summary judgment on July 29, 2021.

On August 11, 2021, plaintiff’s counsel began taking

Deputy Juarez’s video deposition. After the County’s counsel

instructed Juarez not to answer multiple questions, she halted

the deposition. In response, plaintiff’s counsel canceled all

scheduled depositions.

On August 23, 2021, plaintiff filed a motion to compel

written discovery. Two days later, plaintiff filed a Pitchess

motion. On September 20, 2021, plaintiff moved to compel

Deputy Juarez’s deposition testimony. All three motions were

opposed by the County. All three motions were denied by the

trial court.

B. Motions to Compel: Standard of Review

“We review a trial court’s discovery orders for an abuse of 

discretion. ‘ “ ‘The trial court’s determination will be set aside

only when it has been demonstrated that there was “no legal

justification” for the order granting or denying the discovery in

question.’ ” ’ ” (MacQuiddy v. Mercedes-Benz USA, LLC (2015)

233 Cal.App.4th 1036, 1045.)

10 Under the “apex deposition doctrine” or “apex 

witness rule,” the plaintiff must show the apex official of the 

defendant corporation or government agency has unique or 

superior personal knowledge that is unobtainable through 

less intrusive discovery means. (Liberty Mutual Ins. Co. v. 

Superior Court (1992) 10 Cal.App.4th 1282, 1287–1290 

[corporation]; Nagle v. Superior Court (1994) 28 Cal.App.4th 

1465, 1467–1468 [government agency].)
20

C. Orders Denying Motions to Compel

1. Trial court did not abuse its discretion in

denying the motion to compel written

discovery

Plaintiff moved to compel the County’s responses to two 

sets of special interrogatories, one set of form interrogatories, one 

set of requests for admission, and one set of requests for 

production of documents. At the August 30, 2021 hearing, 

plaintiff’s counsel did not deny the discovery requests were broad. 

He explained to the trial court that the civil discovery rules 

allowed him to conduct broad discovery (“a fishing expedition”) 

that may prove relevant in his other pending cases. Nor is such 

discovery limited to the narrow issues imposed by the court. In 

his written motion, counsel argued the facts and circumstances of 

the leak of the voice recording of the deputies’ fight that are at 

issue in this case. According to his “cat’s paw” theory of 

causation,

11 “the Executioners illicitly obtained a recording of the 

call” and used it and their influence to retaliate against him.12

11 Under the cat’s paw theory, the actor who acted without 

animus “may be found to have operated as a mere 

instrumentality or conduit for others who acted out of 

discriminatory or retaliatory animus, and whose actions were a 

but-for cause of the challenged employment action.” (Reeves v.

Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112–113; see also 

Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 

444, 461.)

12 Plaintiff asserted: “Thus, the following topics are fair 

game for discovery: the Executioners gang, its leadership, 

membership, aims, actions, motivations, and the same for its 

individual members; the command influence, if any, wielded by 

the Executioners or particular Executioners members, whether to 
21

In denying the motion, the trial court reminded plaintiff’s 

counsel of the narrow scope of the litigation and admonished him 

not to engage in discovery exceeding the previously ordered 

parameters: “for the several months at issue, his reporting of the 

hearsay incident, and whether, if at all, he was retaliated

against.”

There was no abuse of discretion. First, had plaintiff

wanted to depose witnesses that were also named in five “other 

cases” represented by “other attorneys,” he could have filed a 

motion under Code of Civil Procedure section 1048, subdivision 

(a). The statute provides: “When actions involving a common

question of law or fact are pending before the court, it may order

a joint hearing or trial of any or all the matters in issue in the

actions; it may order all the actions consolidated and it may make

such orders concerning proceedings therein as may tend to avoid

unnecessary costs or delay.” (See, e.g., State of California v. 

Altus Finance (2005) 36 Cal.4th 1284, 1293 [cases consolidated 

for discovery and pretrial matters]; Austin B. v. Escondido 

Unified School Dist., supra, 149 Cal.App.4th at p. 870 [cases 

Plaintiff’s detriment or otherwise; the ratification of misconduct 

of the Executioners or its members by the Sheriff’s Department, 

whether to Plaintiff’s detriment or otherwise; Sheriff Villanueva’s 

public comments qua Sheriff about Plaintiff and the factual merit 

of Plaintiff’s case; the documents and communications in the 

County’s possession relating to Plaintiff’s case. Jaime Juarez is 

the leader of the Executioners, and has wielded undue command 

influence on multiple occasions, on behalf of himself and the 

Executioners. . . . Thus, discovery into the County’s special 

treatment of him, including re-authorizing him to carry a firearm 

and return to patrol duties is within the scope of discovery of this 

case.”
22

consolidated for discovery and trial]; Frieman v. San Ravael Rock 

Quarry, Inc. (2004) 116 Cal.App.4th 29, 33 [cases consolidated for 

discovery and pretrial determinations].) Plaintiff cites no 

authority obligating the County to agree to written discovery or 

depositions that would possibly serve to obtain relevant discovery 

in other cases.

Second, plaintiff’s arguments to justify conducting wideranging discovery were extensive. However, such arguments 

manifested a palpable failure to acknowledge the limits of the 

scope of litigation imposed by the court. None of plaintiff’s 

written discovery, excepting special interrogatory 35, were even 

remotely addressed to the dispositive issue of whether plaintiff

was retaliated against by the County as a result of his report of 

the fight. Most discovery was aimed at the nature and extent of 

the alleged Executioners’ existence, practices, and authority in 

the sheriff’s department and the City of Compton, which were 

irrelevant to his cat’s paw theory as it pertained solely to his 

hearsay report of the deputies fight and ensuing retaliation. (See 

Code Civ. Proc., § 2017.010 [discovery allowed only where the 

matter is relevant in the pending action].) Ultimately, the court 

compelled the County to respond to special interrogatory 35, 

regarding the chain of custody for plaintiff’s recording of his 

report of the deputies’ fight.

2. The trial court did not abuse its discretion

in denying the motion to compel Deputy

Juarez’s deposition testimony

The trial court advanced the motion to compel Deputy 

Juarez’s deposition testimony and took it off calendar. Despite 

repeated admonishments to comply with court rules, plaintiff’s 

counsel failed to submit required courtesy copies to the court.
23

Plaintiff contends the trial court abused its discretion by 

resolving the motion on procedural grounds rather than on the 

merits. We are not persuaded.

“Every court has the inherent power, in furtherance of 

justice, to regulate the proceedings of a trial before it; to effect an 

orderly disposition of the issues presented; and to control the 

conduct of all persons in any manner connected therewith. 

[Citations.] The exercise of this power is a matter vested in the 

sound legal discretion of the trial court, subject to reversal on 

appeal only in those instances where there has been an abuse of 

that discretion.” (People v. Miller (1960) 185 Cal.App.2d 59, 77; 

see also Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1351.) 

A litigant’s failure to comply with local court rules may properly 

result in a court’s refusal to consider the litigant’s position. (See

People v. Lewis (1977) 71 Cal.App.3d 817, 820–821.)

Plaintiff attacks the conduct of the County’s counsel in 

representing Juarez during his deposition. However, plaintiff

fails to show the trial court abused its broad discretion. Nor does 

he defend his own counsel’s repeated failure to comply with the 

court’s rules. We find no abuse of discretion in these 

circumstances.

D. Order Denying the Pitchess Motion

Plaintiff contends the trial court prejudicially erred in 

denying his Pitchess motion, which sought to compel discovery of 

information from the personnel files of 17 sheriff’s deputies. Not 

so.

Generally, the personnel files of a law enforcement officer 

are confidential and precluded from discovery in any legal 

proceeding. (Pen. Code, §832.7, subd. (a).) Under Pitchess and 

its progeny, however, discovery of certain information in the 
24

personnel files of an officer accused of misconduct is permitted 

upon a showing of good cause. (Warrick v. Superior Court (2005) 

35 Cal.4th 1011, 1016; Pitchess, supra, 11 Cal.3d at pp. 536–538.) 

Requiring a showing of good cause serves to balance a litigant’s 

right to discovery and an officer’s right to privacy. (City of Santa 

Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81–84.) “Good

cause for discovery exists when the defendant shows both

‘ “materiality” to the subject matter of the pending litigation and

a “reasonable belief” that the agency has the type of information

sought.’ ” (Warrick, supra, 35 Cal.4th at p. 1016.)

We review the trial court’s summary denial of discovery of

information from police officer personnel records for an abuse of

discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970,

992.)

Having examined plaintiff’s Pitchess motion in its entirety,

we agree with the trial court. While the good cause showing is

“relatively relaxed,” plaintiff has failed to meet it. There is no

materiality because there is no evidentiary connection between

the limited issues in this case and the information he seeks.

The County offered to provide plaintiff one item he sought

in his motion—the list of March 2020 qualified watch deputy

candidates. It is unclear whether plaintiff pursued this

discovery. Plaintiff also sought the deputies’ use-of-force history.

We note use-of-force incidents by law enforcement leading to

serious bodily injury or death were available at the time under

Penal Code section 832.7, former subdivision (b)(1)(A) through

California’s Public Records Act. (Gov. Code, former § 6250

et seq., repealed eff. Jan. 1, 2023, now id., § 7920.000 et seq.)
25

III. Motion for Summary Judgment

The County moved for summary judgment/summary 

adjudication on the remaining three causes of action: workplace 

retaliation and failure to prevent retaliation under FEHA and 

whistleblower retaliation under Labor Code section 1102.5. As 

the trial court previously ruled, the litigation was limited to 

plaintiff’s “ ‘claim that he reported a fight between two deputies 

and was thereafter subject to retaliation.’ ”

A. Supporting Evidence, Objections, Rulings

In support of its motion, the County filed a “Compendium 

of Evidence” and a “Separate Statement of Undisputed Facts.” 

The evidence included declarations of Deputy Romero, Master 

FTO, and Sergeant Rene Barragan of the sheriff’s department, 

partial transcripts of plaintiff’s depositions, photographed text 

messages from plaintiff, and his responses to written discovery. 

Plaintiff’s opposition papers included an “Opposition Separate 

Statement” and an “Index of Evidence in Opposition” to the 

motion. The evidence consisted of declarations of plaintiff, 

Lieutenant Waldie, and former Commander Robert Olmsted of 

the sheriff’s department, excerpted public statements of former 

Sheriff Alex Villanueva, and partial transcripts of plaintiff’s 

depositions. Plaintiff also filed over 100 “Additional Material 

Facts in Dispute.”

The trial court sustained most of the County’s objections to 

plaintiff’s and Olmsted’s declarations. The court also struck 

plaintiff’s additional material facts as neither material nor 

pertaining to the court-ordered time frame, and his Opposition 

Separate Statement as based on argument or objections. The 

court overruled plaintiff’s objections to the evidence in the 
26

County’s Separate Statement of Undisputed Facts as 

“noncompliant” with California Rules of Court, rule 3.1354(b).

Plaintiff does not challenge these rulings on appeal.

Following the hearing, the court granted the County’s

motion for summary judgment, concluding the County had 

carried its burden on each of plaintiff’s causes of action and

plaintiff had failed to raise a triable issue of material fact as to

any of them.

B. Standard of Review

A motion for summary judgment or summary adjudication 

is properly granted only when “all the papers submitted show 

that there is no triable issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” (Code 

Civ. Proc., § 437c, subd. (c).) We review a grant of summary 

judgment or summary adjudication de novo and decide 

independently whether the facts not subject to triable dispute 

warrant judgment for the moving party or a determination a 

cause of action has no merit as a matter of law. (Hartford 

Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 

286.) The evidence must be viewed in the light most favorable to 

the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 

703.)

C. Plaintiff’s FEHA Retaliation Causes of Action

FEHA protects an employee from retaliation who has 

“blown the whistle” on a discriminatory employer practice 

forbidden by section 12940, subdivision (a), e.g., discrimination 

based on “race, religious creed, color, national origin, ancestry, 

physical disability, mental disability, reproductive health 

decisionmaking, medical condition, genetic information, marital

status, sex, gender, gender identity, gender expression, age, 
27

sexual orientation, or veteran or military status.” The elements 

of a FEHA retaliation cause of action are: (1) the plaintiff 

engaged in a protected activity; (2) the employer subjected the 

plaintiff to an adverse employment action, and (3) a causal link 

exists between the protected activity and the employer’s action. 

(Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.) An 

employee engages in protected activity when she or he has 

opposed any practices forbidden under FEHA, or testified, or 

assisted in any proceeding under FEHA. (§ 12940, subd. (h).) An 

employer who discharges, expels, or otherwise discriminates 

against an employee for having engaged in protected activity has 

committed an adverse employment action. (Ibid.)

The County argued plaintiff could not satisfy a prima facie 

case for protected activity, much less a claim for FEHA 

retaliation. Plaintiff acknowledged the fistfight he reported was 

unrelated to FEHA violations or discrimination. Instead, he 

testified, the fight allegedly occurred because one deputy was 

angry with plaintiff’s friend for injuring another deputy in a 

traffic collision and failing to detain an armed suspect. Reporting 

the fight was not forbidden FEHA activity.

As for any adverse employment actions, the county argued 

far from being able to show a nexus between any protected 

activity and adverse employment actions, plaintiff could not show 

he suffered any adverse employment actions at all under FEHA.

Plaintiff’s deposition testimony shows he became an FTO in 2019, 

supervised a trainee for three months, and was paid the standard 

bonus until his phase of the supervision ended. Like all FTO’s,

plaintiff received the bonus only when he was training. In 

January 2020, there were no more trainees available, and 

plaintiff welcomed “a break.” When deposed, plaintiff testified 
28

that he was not demoted from his FTO position, he was just no 

longer receiving the bonus. Plaintiff acknowledged during 

deposition that he was currently listed as an FTO for the sheriff’s 

department. He had not been assigned a trainee, but he had not 

ask for one either. In his declaration, Master FTO Romero 

confirmed he told plaintiff when he was ready to supervise he 

would be assigned a trainee.

In June or July 2019, plaintiff requested a transfer to the 

Pico Rivera station. During deposition, plaintiff testified that 

although he “loved working in [Compton] at that station,” he felt 

“it was enough time to do five years at a fast station.” Plaintiff’s 

transfer was put on hold because of an investigation into an onduty traffic stop he conducted in September 2020. Plaintiff

testified that was standard procedure.

In March 2020, plaintiff asked to be transferred out of the 

Compton station. His captain said she could transfer him 

overnight to the East Los Angeles station, but she had no 

authority to move him to the Pico Rivera station, which was out 

of the district. Plaintiff declined, saying “[h]owever long it took,” 

he wanted to go to the Pico Rivera station.

Plaintiff testified that in April or May 2020, Lieutenant 

Ruiz offered “to send [him] on loan” to the detective bureau to 

file cases for the station. Ruiz said the assignment is “almost the 

same hours” so plaintiff would “keep the same shift.” Plaintiff 

accepted the transfer. Plaintiff testified the filing position 

involved a lot of paperwork, but “it wasn’t bad” and he “learned 

some things.” When the investigation into his traffic stop was 

completed in September 2020, plaintiff was transferred to the 

Pico Rivera station. He is still assigned at that station, although 
29

he is out “on medical leave.” Plaintiff is a “deputy sheriff 

generalist.” He has not applied for a promotion since 2020.

This evidence shifted the burden to plaintiff to raise a 

triable issue of fact on the issues of the alleged FEHA retaliation 

cause of action. (See Guz v. Bechtel National, Inc. (2000) 24 

Cal.4th 317, 361 [an employer moving for summary judgment on 

a FEHA cause of action may satisfy its initial burden of proving 

a cause of action has no merit by showing either that one or more 

elements of the prima facie case is lacking, or that the adverse 

employment action was based on legitimate nondiscriminatory 

factors]; Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 

1031, 1038 [same].)

Plaintiff did not address the protected activity element 

other than to assert the fistfight related to “the Executioners and 

intra-station politics.” Instead, plaintiff argued triable issues of 

material fact exist as to whether he suffered adverse 

employment actions in retaliation for reporting the fight—

specifically being forced out of the FTO position, denied a 

trainee, and “relegated to the junior position of Assistant Filing 

Deputy.”

Plaintiff testified that other deputies knew about the 

anonymous report within days of his call to internal affairs, 

although he had believed it would remain confidential. Then, as 

an FTO, plaintiff was told to select a new trainee, and he did so 

on February 13, 2020. Shortly thereafter, Sergeant Barragan 

met with plaintiff and said, while he understood plaintiff needed 

to take CFRA/FMLA leave, plaintiff’s absences were a disservice 

to trainees. Plaintiff could choose either to remain an FTO and 

be subject to “documenting” (for potential discipline), or he could 

relinquish his FTO position in writing. Sergeant Barragan had 
30

prepared the memorandum, which plaintiff edited slightly before 

signing. The memorandum was “not accurate” in stating that 

plaintiff had to stop supervising trainees because of CFRA/FMLA 

leave and family needs. As a result of the memorandum, plaintiff 

was not able to supervise his chosen trainee. According to 

Lieutenant Waldie’s declaration, it is a demotion for an FTO to 

have his trainee taken away and to be denied any future 

opportunities to supervise a trainee. Plaintiff named other FTO’s 

whose greater number of absences were not considered an issue 

for trainees. Plaintiff acknowledged being unaware of their 

individual circumstances.

In his declaration, Lieutenant Waldie stated that it is a 

demotion for an FTO to be moved to assistant filing deputy. For 

that reason, plaintiff argues he suffered an adverse employment 

action.

We conclude the trial court properly found there was no 

evidence of any adverse employment actions to support a FEHA 

violation. (Hersant v. Department of Social Services (1997) 57 

Cal.App.4th 997, 1009 [triable issue of fact as to whether 

employer’s reasons for termination were unwise or incorrect is 

immaterial; the proper question is whether termination violated

FEHA].) An adverse employment action “ ‘materially affect[s] the 

terms and conditions of employment.’ ” (Featherstone v. Southern

California Permanente Medical Group (2017) 10 Cal.App.5th

1150, 1161, quoting Yanowitz v. L’Oreal USA, Inc., supra, 36 

Cal.4th at p. 1051, fn. 9, italics added by Featherstone.) “A

change that is merely contrary to the employee’s interests or not

to the employee’s liking is insufficient.” (Akers v. County of San

Diego (2002) 95 Cal.App.4th 1441, 1455.) “ ‘If every minor change

in working conditions or trivial action were a materially adverse
31

action then any “action that an irritable, chip-on-the-shoulder

employee did not like would form the basis of a discrimination

suit.” [Citation.]’ [Citation.] The plaintiff must show the

employer’s retaliatory actions had a detrimental and substantial

effect on the plaintiff’s employment.” (McRae v. Department of

Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386.)

As for the FTO position, as stated, plaintiff insists that 

Sergeant Barragan forced him to relinquish the position and 

typed the memorandum to that effect. Barragan and Master 

FTO Romero attested in their declarations that it was plaintiff’s 

idea to “pause” his FTO duties and plaintiff typed the 

memorandum himself. That evidentiary conflict is beside the 

point. There is no triable issue of fact that plaintiff was never 

told he could not return as an FTO, was paid while he was an 

FTO, is still identified by the sheriff’s department as an FTO, and 

has not asked to reassume his position as an FTO. There was no 

adverse employment action.

Whether the position of assistant filing deputy is a

“demotion” or a subordinate position does not raise a triable issue

of material fact. Although plaintiff did not request the transfer,

it was offered to him. This happened while his transfer to the

Pico Rivera station was pending. Plaintiff points to Patten v.

Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378

[disapproved on another ground in Lawson v. PPG Architectural

Finishes, Inc. (2022) 12 Cal.5th 703, 712, 718, fn. 2] as

dispositive. However, that case does not help him for many

reasons, the least of which is it involved a transfer that was not

voluntarily accepted. (Patten, at p. 1382.) Further, the case does

not support the proposition that assignment to a less preferred

position alone constitutes an adverse employment action.
32

Finally, even if there were solid undisputed evidence to

support plaintiff’s claim that he was retaliated against by the

Executioners, the FEHA antiretaliation provision does not

protect against retaliation for opposing conduct that is not

forbidden by FEHA—like reporting the fistfight. (Chen v. County

of Orange (2002) 96 Cal.App.4th 926, 950.)

FEHA creates an actionable tort for an employer’s failure 

to take all reasonable steps to prevent unlawful discrimination, 

harassment, or retaliation, which is plaintiff’s second FEHA 

cause of action. (Trujillo v. North County Transit Dist. (1998) 63 

Cal.App.4th 280, 286; §12940, subd. (k).) It is, however, a 

derivative claim; a failure to prevent cause of action necessarily 

requires the underlying unlawful retaliatory conduct. Without it, 

the employer cannot be held liable. (Trujillo, at p. 289.)

D. Plaintiff’s Whistleblower Retaliation Cause of 

Action under Labor Code Section 1102.5.

By its very terms, Labor Code section 1102.5, subdivision

(b) prohibits employer retaliation when an employee discloses

information if the employee “has reasonable cause to believe”

that the information discloses a violation of a statute, rule or

regulation. (See Lab. Code, § 1102.5, subd. (e) [which applies to 

“[a] report made by an employee of a government agency to their 

employer”].) Thus, an employee engages in protected activity

when he or she reports “ ‘ “reasonably based suspicions” of illegal

activity.’ ” (See Ferrick v. Santa Clara University (2014) 231

Cal.App.4th 1337, 1345.)

“The elements of a [Labor Code] section 1102.5(b)

retaliation cause of action require that (1) the plaintiff establish a

prima facie case of retaliation, (2) the defendant provide a

legitimate, nonretaliatory explanation for its acts, and (3) the
33

plaintiff show this explanation is merely a pretext for the

retaliation.” (Patten v. Grant Joint Union High School Dist.,

supra, 134 Cal.App.4th at p. 1384.) The first element,

establishing a prima facie case, requires a plaintiff to show (1) he

engaged in a protected activity, (2) his employer subjected him to

an adverse employment action, and (3) there is a causal link

between the two. (Ibid.)

As discussed, no genuine issue of material fact exists that

plaintiff was subjected to an adverse employment action. 

Summary judgment was proper. For that reason, we need not

decide whether plaintiff was engaged in protected activity for

purposes of a Labor Code section 1102.5 violation. Plaintiff did

not witness the fight he reported; he was told about it. Plaintiff

maintained he was calling internal affairs about a crime, assault

and battery, a violation of state law.13 However, rather than

acting as a whistleblower, plaintiff’s conduct could be construed

as complaining about an internal personnel matter between two

work colleagues. (See Patten v. Grant Joint Union High School

Dist., supra, 134 Cal.App.4th at p. 1385.)

IV. Award of Costs

The trial court denied plaintiff’s motion to strike the

County’s costs and awarded the County $13,943.84 in costs. An 

award of fees to a defendant is appropriate under section 12965, 

subdivision (c)(6) when “ ‘ “the action brought is found to be 

unreasonable, frivolous, meritless or vexatious.” ’ ” (Bond v.

13 The cause of action does allege plaintiff suffered adverse 

employment actions for “protesting or opposing” violations of 

Penal Code section 240 (assault) and Penal Code section 243, 

subdivision (d) (aggravated battery), which suggests protected 

activity.
34

Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921–922); 

see Cummings v. Benco Building Services (1992) 11 Cal.App.4th 

1383, 1387.) “Meritless” is defined as “groundless or without 

foundation, rather than simply as the fact that the plaintiff 

ultimately lost.” (Bond, supra, at p. 922.) “ ‘[V]exatious’ does not 

imply that plaintiff’s subjective bad faith is a necessary 

prerequisite to an award of attorney fees to defendant” (ibid.), but 

“ ‘if a plaintiff is found to have brought or continued such a claim 

in bad faith, there will be an even stronger basis for charging him 

with the attorney’s fees incurred by the defense.’ ” (Id. at p. 925.) 

We review the trial court’s ruling for an abuse of discretion. 

(Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989.)

Following a hearing, the trial court issued a lengthy minute 

order expressly finding that plaintiff’s action was “frivolous, 

unreasonable, and groundless,” and detailing its reason for those 

findings. Plaintiff does not seriously dispute the court’s findings 

on appeal, merely contending that reversal of the summary 

judgment requires reversal of the cost award for the County.

Having reviewed the entire record, we agree with the trial 

court for the reasons it stated. There was no abuse of discretion. 

Additionally, we are troubled by the conduct of plaintiff’s counsel 

toward both the County’s counsel and particularly the court. We 

appreciate the vigorous advocacy of attorneys in representing 

their clients, but sarcasm, personal attacks, and an obvious lack 

of respect are not acceptable in the courtroom. Such behavior 

undermines the attorneys’ credibility and hurts the clients.
35

DISPOSITION

The judgment is affirmed. The County is entitled to its

costs on appeal.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.