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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

s heriff’s d eputy. Plaintiff appeals from the judgment entered in

favor of his employer

, the County of Los Angeles (the C ounty )

. 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

Hous ing 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

plai ntiff 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. Fact s

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

the refore able to care for his daughter’s medical needs.

In 2016, p laintiff 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 U ndesignated statutory references refer to the

Government Code.3

First, Dep uty 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 reprimande d 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

pla ced on hold while one of his traffic stops was being

investigated.

In October 2019, plaintiff became a f ield t raining o fficer

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

received a bonus.

In early February 2020, plaintiff’s friend , Depu ty Thomas

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

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

2 T he 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, o r

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. § 26 01 et seq.)

, which also provides that an eligible employee “shall be entit led 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 anonymousl y.

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 sig ned 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 L os A ngeles 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 bec ause 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. T he de puty 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 writ ten

re pri mand. 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 a n

adm inistrative 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 second6

amended complaint became the operative complaint. 3 It alleged

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

the FEHA : (1) assoc iational 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 allege d whistleblower retaliation (Lab

. Code, § 1102.5).

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

Code, § 52.1).

Following the County’s demurre r, 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 ma ny 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 I n response to the County’s demurrer to the second

amended complaint, rather than file opposition, p laintiff

attempted to file an unauthorized third amended complaint. The

trial court dismissed the County’s unopposed demurrer without

leave to amend and dis missed the case. Later the court granted

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

opposition to the demurrer.7 The parties stipulate d 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 dis covery 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, p laintiff

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

p laintiff 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 p laintiff 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 ru lings. 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 r easoning. ( 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, p laintiff include s9

irrelevant information, 4 adopt s a shotgun pleading format, 5 and

in numerous instances

, relie s on conclusions rather than factual

allegations. 6 Indeed, the second amended complaint is peppered

4 F or 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 p laintiff

’s claims.

5 “S hotgun 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 act ion 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 (C F RA); (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 explana tion as to their substance or how

they pertain to the alleged causes of action.

6 F or example, the second amended complaint alleges the

Compton s tation “has been permeated by a violent D eputy 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 within10

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 p laintiff was barred from pursuing any

causes of action based on mis conduct predating December 16

,

20 19

— six months before the submission of the Government

C laims 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 caus e 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 “ S ham I nvestigation” of his reports to the

internal affairs bureau without supporting facts.

7 A lthough the government claim s letter was filed on

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

p laintiff signed the letter, to compute the six

- month period.

8 S ection 911.2, subdiv ision (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 year11 The parties agree that Government Code section 911.2

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

However, p laintiff wrongly claims FEHA’s current three

- year

limitation, rather than FEHA’s one

- year limitation then in effect

, applies. T he 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 co nduct 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. ( Wil lis 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

violation s 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 c omputing 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 requiremen t 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 co mplaint 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 p laintiff alleged to have occurred in 2016 and

2017. T he 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. ” ( Ri chards 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 mis conduct that falls outside the

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

not yet acquired a degree of permanence. ( Richards

, supra, 26

Cal.4th at p. 823 .) “Perm anence” 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 employ ee ’ s requests have been rejected. ( Ibid. )

The earlier misconduct claimed by p laintiff 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) 16813

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,

p laintiff was reassigned to an FTO position in October 2019. In

2020, p lainti ff was offered his choice of days off if he accepted the

graveyard shift, which he turned down. And p laintiff 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 viola tion

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

d iscrimination 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 P laintiff 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 emplo yment 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) 22 0

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

additi on, 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 gr avamen of this cause of action appears to be that

p laintiff 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 p laintiff ’s

taking leave to care for his daughter and any of the ass orted15

adverse actions he alleges . The cause of action for associational

disability discrimination fails as a matter of law.

2. Bane Act v iolation

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 secure d 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 plai ntiff 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 An geles (2004) 32 Cal.4th 820, 843.)

The specific allegations p laintiff 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

p laintiff 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 th e victim of a nonhuman animal.) In any

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

intimidation, or coercion made directly against p laintiff by

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

derivative liability for ind ividuals 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 ass uming the graffiti and dead rat amounted to a

sufficient threat of murder as p laintiff 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 p laintiff ’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 ap plicable. ” ( 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 sa tisfied. General allegations are

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

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

of action fails as a matter of law.

D. The Court’s Time Limitation on the Remaining

Cau ses 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, p laintiff argues, because

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

Lightb ourne (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 Thom pson 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 p laintiff ’s report of

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

events from Februa ry to September 2020 and did not prejudice

p laintiff

.

E. Denial of Leave t o Amend

L eave 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, p laintiff 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, a s 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 p laintiff 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

p laintiff already attempted to file four complaints with no

substantive changes. The court added that allowing another

opportunity to amend would be futile because p laintiff 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 h is

motion s 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

- mail s 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

depar tment, 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 p laintiff ’s counsel, rejecting the

proposa l. 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, with19

the exception of the a pex depositions of the sheriff and

undersheriff. 10

After taking p laintiff

’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, p laintiff ’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 Cou nty. All three motions were denied by the

trial court.

B. Motions to Compel: Standard of R eview

“ 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 depositi on 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 In s. 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,

p laintiff ’s counsel di d 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 “t he Executioners illicitly obtained a recording of the

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

11 Under t he cat’s paw theory

, the actor who acted without

animus “m ay 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 P laintiff 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 Exec utioners members, whether to21 In denying the motion, the trial court reminded p laintiff ’s

counsel of the narrow scope of the litigation and admonished him

not to eng age 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 retaliat ed

against.”

There was no abuse of discretion. First, had p laintiff

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 provide s : “ When actions involving a common

ques tion 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 a void

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

P laintiff’s detriment or otherwise; the ratification of misconduct

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

whether to P laintiff’s detriment or otherwise; Sheriff Villanueva’s

public comments qua Sheriff about P laintiff and the factual merit

of P laintiff’s case; the document s and communications in the

County’s possession relating to P laintiff’s case. Jaime Juarez is

the leader of the Executioners, and has wielded undue command

influence on multiple occasi ons, 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 dis covery or

depositions that would possibly serve to obtain relevant discovery

in other cases.

Second, p laintiff

’s arguments to justify conducting wide

ranging 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 p laintiff ’s

written discovery, excepting s p ecial i nterrogatory 35, were even

remotely addressed to the dispositive issue of whether p laintiff

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 C ity 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 p laintiff ’s recording of his

report of the deputies’ f ight.

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

repeat ed admonishments to comply with court rules, p laintiff ’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 conne cted 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 C al.App.3d 817, 820

– 821.)

P laintiff attacks the conduct of the County’s counsel in

representing Juarez during his deposition. However, p laintiff

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 disc overy in any legal

proceeding. (Pen. Code, §832. 7, subd. (a) .) Under Pitchess and

its progeny, however, discovery of certain information in the24

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 exist s 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 p laintiff ’s Pitchess motion in its entirety,

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

“relatively relaxed,” p laintiff 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 p laintiff one item he sought

in his motion

— the list of March 2020 qualified watch deputy

candidates. It is unclear whether p laintiff pursued this

discovery. Plaintiff also sought the deputies’ use

- o f

- 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, f ormer § 6250

et seq

., repealed eff. Jan. 1, 2023, now id.

, § 7920.000 et seq. )25

III. Motion f

or 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 prev iously ruled, the litigation was limited to

p laintiff ’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 “ Compend ium

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 p laintiff ’s depositions, photographed text

mes sages from p laintiff , 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 p laintiff

,

Lieutenan t Waldie, and former Commander Robert Olmsted of

the sheriff’s department, excerpted public statements of former

Sheriff Alex Villanueva, and partial transcripts of p laintiff ’s

depositions. Plaintiff also filed over 100 “Additional Material

Facts in Dispu te.”

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

p laintiff ’s and Olmsted’s declarations. The court also struck

p laintiff ’s a dditional m aterial f acts 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 p laintiff ’s objections to the evidence in the26

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, t he court granted the County’s

motion for summary judgment, concluding the County had

carried its burden on each of p laintiff ’s causes of action and

p laintiff had failed to rais e 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

war rant 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 n onmoving 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, subdiv ision (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 ident ity, 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 fo rbidden under FEHA, or testified, or

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

employer who discharge s , expel s , or otherwise discriminate s

against an employee for having engaged in protected activity has

committed an adverse employm ent action. ( Ibid. )

The County argued p laintiff could not satisfy a prima facie

case for protected activity, much less a claim for FEHA

retaliation. Plaintiff acknowledged the fist fight he reported was

unrelated to FEHA violations or discrimination. Ins tead, 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, p laintiff 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

,

p laintiff received the bonus only when he was training. In

January 2020, there were no more trainees available

, and

p laintiff welcomed “a break.” When deposed, p laintiff testified28

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

longer receiving the bonus. Plaintiff acknowledged during

deposition that he was cur rently 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 p laintiff when he was ready to supervise he

would be assigned a trainee.

I n June or July 2019, p laintiff requested a transfer to the

Pico Rivera station. During deposition, p laintiff 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.” Plainti ff ’s

transfer was put on hold because of an investigation into an on

duty traffic stop he conducted in September 2020. Plaintiff

testified that was standard procedure.

In March 2020, p laintiff asked to be transferred out of the

Compton station. His capta in said she could transfer him

overnight to the East L os A ngeles 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 p laintiff would “keep the same shi ft.” 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, p laintiff was tran sferred to the

Pico Rivera station. He is still assigned at that station, although29

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 p laintiff 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

int ra

- station politics.” Instead

, p laintiff 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 A ssistant F iling

D eputy.”

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, p laintiff was told to select a new trainee

, and he did so

on February 13, 2020. Shortly thereafter, Sergeant Barragan

met with p laintiff and said, while he understood p laintiff needed

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

to trainees. Plaintiff could choose either to rem ain an FTO and

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

relinquish his FTO position in writing. Sergeant Barragan had30

prepared the memorandum, which p laintiff edited slightly before

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

p laintiff had to stop supervising trainees because of CFRA/FMLA

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

was not able to supervise his chosen trainee. According to

Lieutenant Waldie’s declaration, it is a demotion fo r 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 thei r

individual circumstances.

In his declaration, Lieutenant Waldie stated that it is a

demotion for an FTO to be moved to a ssistant f iling d eputy. For

that reason, p laintiff argues he suffered an adverse employment

action.

We conclude the trial court prop erly 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 adverse31

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 pl aintiff must show the

employer ’ s retaliatory actions had a detrimental and substantial

effect on the plaintiff

’ s employment. ” ( Mc R ae v. Department of

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

As for the FTO position, as stated, p laintiff 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 “paus e” his FTO duties and plaintiff typed the

memorandum himself

. That evidentiary conflict is beside the

point. There is no triable issue of fact that p laintiff 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 a ssistant f iling d eputy is a

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

of material fact. Although p laintiff 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 pre ferred

position alone constitutes an adverse employment action.32 Finally, even if there w ere solid undisputed evidence to

support p laintiff

’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 W histleblower Retaliation Cause of

Action under Labor Code S ection 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 believ e”

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, a n employee engages in protected activity

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

activity.’ ” ( See Ferrick v. Santa Clara University ( 20 14 ) 231

Cal.App.4th 1337, 1345.)

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

r etaliation 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) the33

plaintiff show this explana tion 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

p laintiff was subjected to an adverse employment action.

Summar y judgment was proper. For that reason, w e need not

decide whether p laintiff 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 in ternal 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 T he cause of act ion 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 Prod uction s (19 96) 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 detail ing 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 C ounty.

Having reviewed the entire record, we agree w ith 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 atto rneys in representing

their client s , but sarcasm, personal attacks

, and an obvious lack

of respect are not acceptable in the courtroom. Such behavior

undermines the attorney s ’ credibility and hurts the client s

.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.