Filed 9/26/24 Vargas v. City of Long Beach CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ALBERTO VARGAS, et al.,

Plaintiffs and Appellants,

v.

CITY OF LONG BEACH,

Defendant and 

Respondent.

 B321208

 (Los Angeles County

 Super. Ct. No. BC675610)

 ORDER MODIFYING

 OPINION AND DENYING

 PETITION FOR

 REHEARING

 [CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed on September 6, 2024, is 

modified as follows:

On page 32, the second sentence of section IV., is modified 

to read, “The parties are to bear their own costs on appeal.”
2

This modification changes the judgment. Plaintiffs’ 

petition for rehearing filed on September 23, 2024, is denied.

 BAKER, Acting P. J. KIM, J. LEE, J.

 Judge of the San Bernardino Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
Filed 9/6/24 Vargas v. City of Long Beach CA2/5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ALBERTO VARGAS, et al.,

Plaintiffs and Appellants,

v.

CITY OF LONG BEACH,

Defendant and 

Respondent.

 B321208

 (Los Angeles County

 Super. Ct. No. BC675610)

APPEAL from a judgment of the Superior Court of the 

County of Los Angeles, Holly J. Fujie, Judge. Affirmed.

Law Office of Gregory W. Smith, Gregory W. Smith and 

Diana Wang Wells, Benedon & Serlin, Douglas G. Benedon and 

Judith E. Posner, for Plaintiffs and Appellants.

Rutan & Tucker, Samantha Lamm, for Defendant and 

Respondent.
2

I. INTRODUCTION

Plaintiffs,1 two former City of Long Beach (the City) police 

officers, appeal from the judgment entered after the trial court 

granted summary judgment on their claims against the City for 

whistleblower retaliation under Labor Code section 1102.5 

(section 1102.5) and retaliation under FEHA.2 According to 

plaintiffs, the trial court erred when it: excluded evidence under 

the doctrine of issue preclusion; determined the City’s motion on 

their section 1102.5 claim under the wrong legal standard; and 

concluded that there were no triable issues of fact on their two 

claims. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiffs’ Prior Litigation

Vargas began his employment as a police officer for the 

City in 1994, and Orduno began his employment as an officer in 

1999.

In 1997, 2004, and 2006, Vargas sued the City for FEHA

violations. In August 2014 and April 2015, Vargas and Orduno

sued the City for FEHA and Labor Code violations, and those two 

cases were consolidated (consolidated action) and resolved 

against plaintiffs on summary judgment. Finally, on March 28, 

1 Plaintiffs are Alberto Vargas and Pablo Orduno.

2 FEHA is an acronym for the Fair Employment and Housing 

Act, Government Code section 12900 et seq.
3

2017, Vargas filed another action against the City for retaliation 

under FEHA.

B. Internal Affairs Investigation

On April 18, 2016—four days after the trial court in the 

consolidated action issued its order granting the City’s summary 

judgment motion—the City opened an internal affairs 

investigation into allegations that Vargas and Orduno had made 

untruthful statements in verified written discovery responses 

they submitted in support of their claims in that action.

The City’s administrative complaint against Vargas listed 

three allegations of untruthfulness: (1) in written discovery 

responses dated May 1, 2015, and December 1, 2015, Vargas was 

untruthful when he asserted that he had been selected for the 

role of acting sergeant on multiple occasions prior to complaining 

about detrimental comments made by Lieutenant Christopher 

Klein; (2) in written discovery responses dated February 27, 

2015, Vargas was untruthful when he asserted that he had 

previously filed a race discrimination complaint against the City 

that ended with a judgment in his favor; and (3) in written 

discovery responses dated April 7, 2016, Vargas was untruthful 

when he asserted that he was denied further access to overtime. 

City decision makers sustained the three allegations against 

Vargas.

The City’s administrative complaint against Orduno listed, 

among others, three allegations of untruthfulness: (1) in written 

discovery responses dated February 27, 2015, Orduno was 

untruthful when he asserted that he had complained about the 

City’s treatment of Vargas and Lieutenant Klein’s comments 
4

about Vargas; (2) in written discovery responses dated February 

27, 2015, Orduno was untruthful when he asserted that he 

experienced a lack of assistance on traffic stops which was a 

noticeable difference from the assistance he received prior to 

being required by the City to wear an audio recorder; and (3) in 

written discovery responses dated April 7, 2016, Orduno was 

untruthful when he asserted that he experienced difficulty in 

complying with the requirement to issue seven traffic violations 

in a five hour period. City decision makers sustained the three 

allegations against Orduno.

On April 5, 2017, Vargas and Orduno were notified in 

writing that the allegations of untruthfulness against them had 

been sustained. On May 23, 2017, Vargas and Orduno were both 

notified in writing that they had been dismissed from their 

employment as police officers with the City.

C. Instant Complaint

On September 13, 2017, plaintiffs filed the instant 

complaint against the City asserting causes of action for 

retaliation in violation of FEHA (Gov. Code, § 12940, subdivisions 

(a) and (h)) and violation of the whistleblower protections 

provided by section 1102.5.

In their FEHA claim, plaintiffs alleged that: (1) “In or 

about 2004, 2006, 2015, and 2017, . . . Vargas filed separate and 

distinct FEHA Discrimination and/or Retaliation cases and 

actively participated in litigation against the City . . . . Vargas 

also acted in the capacity of a witness and testified on behalf of 

Orduno in his FEHA case”; (2) “[i]n or about 2015, . . . Orduno 

filed a FEHA [r]etaliation case against the City . . . . Orduno also 
5

acted in the capacity of a witness and testified on behalf of 

Vargas in his FEHA case”; (3) “[a]s a result of multiple filings and 

lawsuits by Vargas pursuant to [FEHA], . . . the testimony of 

Vargas on behalf of Orduno in the 2015 FEHA lawsuit, and 

engaging in other protected activities as described above, the 

[City] retaliated against . . . Vargas by wrongfully terminating 

him”; and (4) “[a]s a result of filing a DFEH Complaint pursuant 

to [FEHA], testifying on behalf of Vargas, and being associated 

with Vargas, . . . Orduno was wrongfully terminated by the City 

. . . .”

In their section 1102.5 cause of action, plaintiffs alleged 

that: “[The City] retaliated against [them] for filing, engaging in 

litigation, and testifying in litigation as authorized by . . .

Government Code section 12940 et seq. Said retaliation was 

based upon [p]laintiffs’ disclosure of . . . Government Code section 

12940 violations and because [p]laintiffs refused to refrain from 

filing claims against the City . . . for violations [of] . . .

Government Code section 12940.” (Emphasis omitted.) Their 

disclosures were legally protected activities under section 1102.5 

and Labor Code section 1102.6 as they “had reasonable cause to 

believe” the information reported violated Government Code 

section 12940. The City retaliated against them by wrongfully 

terminating their employment.

D. Summary Judgment Proceedings

1. The City’s Motion

On August 31, 2021, the City filed a motion for summary 

judgment, arguing that there was no merit to the FEHA 
6

retaliation claim because plaintiffs could not show they had 

engaged in protected activities under FEHA. According to the 

City, Vargas’s 2004 and 2006 lawsuits were too remote in time to 

support an inference of retaliation and plaintiffs did not have an 

objectively reasonable belief that, by filing the consolidated 

action,3 they were reporting FEHA violations. They also argued 

that the doctrine of issue preclusion barred plaintiffs from 

relitigating the issues that were decided against them in the 

consolidated action.

The City also maintained that the section 1102.5 claim had 

no merit for similar reasons, namely, that plaintiffs could not 

show an objectively reasonable belief that, in pursuing the 

consolidated actions, they were engaging in activity protected by 

the whistleblower provisions of that statute.

In addition, the City asserted that there was no causal link 

between plaintiffs’ activities and their terminations; it had 

independent and nonretaliatory reasons for terminating 

plaintiffs; and plaintiffs could not show the City’s reasons were 

pretextual.

2. The City’s Evidence

The City supported its motion with, among other evidence, 

plaintiffs’ interrogatory responses and contradictory deposition 

testimony that the City decision makers considered in sustaining 

3 The City also argued that Vargas could not have had a 

reasonable belief that the City decided to terminate him on 

March 29, 2017, in retaliation for his act of filing of the 2017 

lawsuit, which he filed just one day earlier on March 28, 2017.
7

the allegations of untruthfulness and declarations from the City’s 

Chief of Police, Robert Luna, and Commander Jeff Berkenkamp.

a. Discovery Responses and Testimony

In supplemental responses to special interrogatories, set 

one, dated May 1, 2015, and verified responses to special 

interrogatories, set two, dated December 1, 2015, Vargas stated 

that prior to complaining about Lieutenant Klein’s detriment 

comments in February 2014, he “was selected for the acting 

sergeant role on a multitude of occasions; thus demonstrating 

that he [was] qualified to fill that position.” The verification form 

attached to the responses to special interrogatories, set two, bore 

Vargas’s signature and was undated. By signing the form, 

Vargas declared under penalty of perjury that he had read the 

responses, knew of their contents, and the responses were true. 

But, he later testified in deposition that he never served in the 

role of acting sergeant during his employment with the City, had 

never spoken to anyone about the process involved in being 

selected to serve in that role, and had never asked to be assigned 

to serve in that position.

In verified responses to form interrogatories dated 

February 27, 2015, Vargas stated that “[i]n or about 2008, [he]

filed a race/national origin lawsuit against the [City], and it

concluded with a judgment in his favor.” The verification form 

attached to the responses bore Vargas’s signature and was dated 

February 27, 2015. By signing the form, Vargas declared under 

penalty of perjury that he had read the responses, knew of their 

contents, and the responses were true. It was undisputed, 
8

however, that prior to the consolidated action, Vargas had never 

filed a race or national origin lawsuit against the City.

In verified responses to supplemental interrogatories dated 

April 7, 2016, Vargas stated multiple times that he was denied 

access to grant overtime. The verification form attached to the 

interrogatories bore Vargas’s signature and was dated April 7, 

2016. By signing the form, Vargas declared under penalty of 

perjury that he had read the responses, knew of their contents, 

and the responses were true. In his deposition, when asked if he 

had been denied grant overtime, Vargas answered, “No.” He also 

confirmed that on the one occasion when other officers were 

offered extra grant overtime of which he was not aware, the 

sergeant in charge of making those assignments offered him four 

slots of overtime to make up for it and that he never asked the 

sergeant if there was any additional grant overtime available or 

told him that he was interested in additional overtime if it was 

available.

In Orduno’s verified responses to special interrogatories

dated February 27, 2015, he stated that he complained to 

superiors about Lieutenant Klein’s alleged statement that Vargas 

was a detriment. The verification form bore Orduno’s signature

and was dated February 27, 2015. By signing the form, Orduno 

declared under penalty of perjury that he had read the responses, 

knew of their contents, and the responses were true. But in 

deposition, when asked if he had ever complained to his 

supervisor about Lieutenant Klein’s detriment statement, 

Orduno explained that he did not complain, as he had nothing to 

complain about; the statement had not been made about him or 

his performance. In the same verified responses, Orduno stated 

multiple times that he experienced a lack of assistance on traffic 
9

stops which was a noticeable difference from the assistance he 

received before he was required to wear an audio recorder. But 

in deposition, he testified that, during the six months that the 

City required him to wear an audio recorder, he never had an 

incident during which he asked for assistance with a traffic stop 

and “no one responded to the scene despite [his] request.”

Finally, in verified responses to supplemental 

interrogatories dated April 7, 2016, Orduno stated that he found 

it difficult to write seven traffic citations in a five-hour period. 

The verification form bore Orduno’s signature, was dated April 7, 

2016, and included the same declaration, under penalty of 

perjury, regarding Orduno’s knowledge of the content of the 

responses and their truthfulness. In his deposition, however, 

Orduno confirmed that, on average, he would write 12 to 20

citations in a five-hour period; it was not difficult to issue seven 

or eight citations in a five-hour overtime period; and the number 

was so low that it was “laughable.”

b. Chief Luna Declaration

According to Chief Luna, the City terminated plaintiffs 

after an internal affairs investigation determined that, during 

the consolidated action, they had made untruthful statements 

and had contradicted those responses in subsequent deposition 

testimony. He confirmed that the untruthful statements made by 

plaintiffs were the sole basis of the City’s decision to terminate 

plaintiffs.

Chief Luna also explained that he was appointed to his 

current position in November 2014, and since that time, in cases 

in which an internal affairs investigation resulted in a sustained 
10

finding of untruthfulness, it had been his “uniform practice . . . to 

recommend to the City [m]anager [that] the employee be 

dismissed.”

c. Berkenkamp Declaration

Commander Berkenkamp explained that he had been 

assigned to review the investigative materials prepared by the 

City’s internal affairs division and to prepare a letter of 

transmittal to Chief Luna containing his findings about whether 

the allegations of untruthfulness against plaintiffs were 

sustained or not sustained. On March 28, 2017, he submitted his 

letter of transmittal setting forth his findings and recommending 

plaintiffs’ termination. He based his recommendation on his 

findings and conclusion that plaintiffs had been untruthful.

Berkenkamp participated in the March 29, 2017, final 

meeting concerning the internal affairs investigation held in 

Chief Luna’s conference room attended by, among others, Luna, 

and Deputy Chiefs David Hendricks, Michael Beckman, and 

Richard Conant. He reviewed with those present his letter of 

transmittal, the allegations against plaintiffs, his findings, and 

his recommended disposition of each allegation, that is, sustained 

or not sustained. When asked by Chief Luna for his 

recommendation, Berkenkamp replied that he recommended 

dismissal of both plaintiffs based on the sustained allegations of 

untruthfulness. The three deputy chiefs all agreed with his 

recommendation to dismiss plaintiffs because of the sustained 

allegations of untruthfulness. Chief Luna then announced his 

decision to dismiss plaintiffs based on the sustained allegations of 
11

untruthfulness. On May 17, 2017, the City sent plaintiffs notice 

of their dismissal.

3. Plaintiffs’ Opposition

Plaintiffs filed an opposition to the motion, arguing that 

(1) their prior lawsuits constituted protected activity; (2) the only 

protected acts upon which they were relying were the prior 

lawsuits they filed against the City and the acts each of them 

took during those actions to support the other; (3) on their section 

1102.5 claim, the doctrine of issue preclusion did not prevent 

them from relying on the consolidated action to show that they 

engaged in protected activity because they had a reasonable and 

good faith belief that they were reporting FEHA violations; 

(4) there were triable issues of fact on both claims as to whether 

their engagement in protected activities was a contributing factor 

in their terminations; (5) on their section 1102.6 claim, the City 

failed to carry its burden by clear and convincing evidence that 

that it would have terminated plaintiffs for independent reasons 

that were unrelated to their prior lawsuits; (6) they were not 

collaterally estopped from explaining their interrogatory 

responses in the consolidated action because the court in that 

prior matter did not determine that they were untruthful; and 

(7) the trial court in this action was required to consider their 

explanations that they did not review or approve the 

interrogatory responses, that Vargas did not verify the May 1, 

2015, response, and that the verification forms were “[p]resigned”.
12

4. Plaintiffs’ Evidence

Plaintiffs supported their motion with, among other

evidence, deposition excerpts, documentary exhibits, and their 

own lengthy declarations with exhibits.4

a. Vargas Declaration

In his 112 paragraph declaration, Vargas provided the 

following relevant facts:

i. discovery responses

Vargas addressed each of the statements he made in 

written discovery in the consolidated action,5 providing the 

4 As explained below, the trial court sustained objections to a 

substantial portion of the evidence submitted by plaintiffs in 

opposition to the City’s summary judgment motion, and the City 

contends that plaintiffs do not raise adequate challenges to those 

objections on appeal. Consistent with our discussion of the 

court’s evidentiary rulings below, we summarize here only (1) 

those relevant portions of plaintiffs’ declarations to which the 

court did not sustain objections; and (2) those relevant 

paragraphs of their declarations that were excluded on issue 

preclusion grounds. Because, however, we will assume for 

purposes of this appeal that plaintiffs demonstrated that they 

engaged, or reasonably believed they were engaging, in protected 

activity when they filed their various complaints, we do not 

summarize the evidence they offered in support of that element.

5 Vargas’s three statements were: (1) he had been selected 

for the acting sergeant role on multiple occasions (acting sergeant 
13

following identical explanations for each such statement: His 

former attorney in the consolidated action, Ronald Zambrano, 

asked him to “pre-sign[ ]” verification forms that did not include 

the “name of the document reviewed, or the date and location of 

execution.” He did not insert any information on any of the forms 

and had no knowledge of who inserted the information. He did 

not expect his former attorney to use the signed forms in 

connection with any documents without first giving him an 

opportunity to review and approve the documents.

Other than at his deposition in this action, no one, 

including attorney Zambrano, gave Vargas the opportunity to 

correct inaccuracies or approve the subject written discovery 

responses prior to their submission to the City. He did not 

communicate with any of his former attorneys concerning the 

information to be included in the responses at any time prior to 

their submission.

During the internal affairs investigation, no one from the 

City asked Vargas: (1) whether he had signed the verification 

forms or dated them; (2) whether he received, reviewed, and 

approved the subject discovery responses; (3) whether he 

communicated with his attorneys about the subject discovery 

responses prior to their submission to the City; and (4) to explain 

any discrepancies between his deposition statements and his 

written discovery responses.

In addition, Vargas provided the following explanations as 

to the acting sergeant statement: During his deposition in the 

statement); (2) in 2008 he had filed a race or national origins 

lawsuit against the City that resulted in a judgment in his favor 

(race lawsuit statement); and (3) he had been denied access to 

grant overtime (grant overtime statement).
14

consolidated action, the City’s attorney asked Vargas if he had 

ever been acting sergeant prior to 2008, and he answered no.

Vargas misspoke when answering because the City’s attorney 

was visibly hostile toward him and asked him the question very 

quickly which led to his confusion. When he reviewed his 

deposition transcript, he corrected his testimony in an errata 

sheet in which he stated that he had acted as a sergeant by 

putting out the patrol watch in the 2000 to 2005 timeframe. In a 

subsequent deposition, he further explained that, in accordance 

with common practice, he was considered an acting sergeant on 

those occasions when he was required to put out the patrol watch 

due to the unavailability of any more senior officer and conceded 

that no one told him to assume the role of acting sergeant.

As to the race lawsuit statement, Vargas was truthful with 

the City’s attorney during his deposition in the consolidated 

action when he explained that he did not recall the years when he 

filed lawsuits against the City, did not know the type of wordage, 

terminology, or legal terms used in those suits, and he did not 

know the legal name of the lawsuit in question. He also pointed 

out that the City would have access to the records in question.

As to the grant overtime statement, Vargas explained that 

prior to the filing of the 2014 action, he learned of the existence of 

a list of secret overtime work opportunities, to which he did not 

have access, when he saw filled-out overtime slips for times that 

were not included in the regular overtime lists. When he later 

discussed the issue with a sergeant, he was shown the list of 

secret overtime opportunities.

According to Vargas, he testified in his deposition that he

was denied access to grant overtime based on the sergeant’s 

secret overtime. After Vargas gave that testimony, he further 
15

testified that he was not denied access to grant overtime, 

referring to the regular grant overtime sign-up meetings at which 

he was present. His testimony that he was not denied access to 

grant overtime clearly pertained to the regular grant overtime 

sign-up meetings that he attended. The City’s attorney did not 

ask him to clarify, and he had no idea that his testimony could be 

misunderstood or confusing to anyone.

ii. the internal affairs investigation

As noted, on March 28, 2017, Vargas filed a FEHA claim 

against the City. On March 31, 2017, in connection with the 

internal affairs investigation, the City reassigned Vargas, 

prohibited him from driving City vehicles, and prohibited him 

from wearing a police uniform in public. As a result of those 

punitive actions, he learned for the first time that there was an 

internal affairs investigation against him, but he still did not 

know the nature of the allegations that triggered it.

The internal affairs investigation resulted in Vargas’s 

dismissal from the City on May 23, 2017. He believed that his 

dismissal was an act of retaliation by the City for having filed 

prior lawsuits, for assisting Orduno in the consolidated action, 

and for testifying in Orduno’s favor in that action. He believed

that the internal affairs investigation was a set-up because at no 

time prior to his termination did the City give him copies of the 

responses to interrogatories forming the basis of the allegations 

of untruthfulness against him. He also based his belief that his 

termination was retaliatory on the fact that, following the 2004 

action, he was continually singled out by the City for various 

adverse employment actions and internal affairs investigations 
16

that were not justified by any performance deficiencies or any 

other legitimate reason.

b. Orduno Declaration

In his 66-paragraph declaration, Orduna provided the 

following relevant testimony:

i. internal affairs investigation

On April 18, 2016, the City initiated an internal affairs 

investigation against Orduno and Vargas for alleged 

untruthfulness and dishonesty in responses to written discovery 

in the consolidated action. 

ii. discovery responses

Orduno addressed each of the three verified statements he 

made in written discovery in the consolidated action,6 providing 

the following identical explanations for each such statement: His 

former attorney in the consolidated action, Ronald Zambrano, 

asked him to “pre-sign[ ]” verification forms that did not include 

the “name of [the] document reviewed, or the date and location of 

6 Orduno’s three statements were: (1) he complained to 

superiors about Lieutenant Klein’s detriment statement 

(complaint about Klein statement); (2) he experienced a lack of 

assistance on traffic stops once he was required to wear the 

recorder (lack of assistance statement); and (3) he found it 

difficult to issue seven citations in a five-hour time period (seven 

citations statement).
17

execution.” He did not insert any information on any of the forms 

and had no knowledge of who inserted the information. He did 

not expect his former attorney to use the signed forms in 

connection with any documents without first giving him an 

opportunity to review and approve the documents. Other than at 

his deposition in this action, no one, including attorney 

Zambrano, gave Orduno the opportunity to correct inaccuracies 

or approve the subject written discovery responses prior to their 

submission to the City.

During the internal affairs investigation, no one from the 

City asked Orduno: (1) about the alleged inconsistencies between 

the statements in his written discovery responses and his 

deposition testimony concerning those statements; (2) whether he 

had signed the verification forms or dated them; (3) whether he 

received, reviewed, and approved the subject discovery responses;

and (4) whether he communicated with his attorneys about the 

subject discovery responses prior to their submission to the City.

In addition, Orduno provided the following specific 

explanations as to the complaint about Klein’s statement: In his 

prior deposition in the consolidated action, Orduno denied 

“‘making a complaint’” about Lieutenant Klein because the City’s 

attorney had asked, “‘did you make a complaint’”, as opposed to 

asking “‘did you complain’”. Orduno answered in the negative 

because he understood her question to mean to “‘make’” a formal 

internal affairs complaint about Klein. He did, however,

complain about Klein’s “‘detriment’” comment, as stated in the 

interrogatory responses. Any inconsistency between the 

interrogatory responses and the deposition testimony was a 

result of Orduno interpreting the question “‘did you make a 

complaint’” to mean a formal internal affairs complaint. Orduno 
18

also explained that he never met or communicated with the 

attorney who signed the interrogatory responses containing the 

complaint about Klein’s statement.

As to the lack of assistance statement, Orduno explained 

that in his deposition in the consolidated action, he “truthfully 

testified that [he] did receive assistance when [he] requested it in 

the field even after [the City] required [him] to wear an audio 

recorder.”

And, as to the seven citations statement, Orduno explained 

that, in his deposition in the consolidated action, he testified that 

he “had no problem issuing the required citations, and [he] 

confirmed in [his] deposition in the instant case that [his] prior 

deposition testimony . . . about issuing citations was truthful.” 

He also claimed that the signature on the verification form 

attached to the interrogatory responses containing his seven 

citations statement was not his and that he did not believe he 

signed that form or inserted any of the information on it.

c. Other Discovery

Plaintiffs also submitted deposition testimony from 

Commander Steven Lauricella in which he stated that officers 

under investigation were usually interviewed during the course 

of the internal affairs investigation and that it was rare that they 

were not.

5. The City’s Evidentiary Objections

In response to plaintiffs’ opposition, the City filed written 

objections to plaintiffs’ evidence, asserting 258 numbered 
19

objections. Each numbered objection asserted multiple grounds

for excluding the testimony specified in that objection, including,

for example, that the testimony was: barred under the doctrine 

of issue preclusion; lacking in foundation; not relevant; 

conclusory; impermissible opinion; and speculation. Not all of the 

objections, however, included issue preclusion as a ground for 

exclusion.

6. Ruling on Motion

On March 24, 2022, the trial court held a hearing on the 

City’s summary judgment motion and, after taking the matter 

under submission, issued a written order that same day making 

the evidentiary rulings discussed below and granting the motion 

on the grounds that there were no triable issues of fact as to 

either of plaintiffs’ claims.

III. DISCUSSION

A. Standard of Review

The standard of review for summary judgment is well 

settled. “[T]he party moving for summary judgment bears an 

initial burden of production to make a prima facie showing of the 

nonexistence of any triable issue of material fact; if he carries his 

burden of production, he causes a shift, and the opposing party is 

then subjected to a burden of production of his own to make a 

prima facie showing of the existence of a triable issue of material 

fact. . . . A prima facie showing is one that is sufficient to support 
20

the position of the party in question.” (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 850–851 (Aguilar).)

“In reviewing a grant of summary judgment, we 

independently evaluate the record, liberally construing the 

evidence supporting the party opposing the motion, and resolving 

any doubts in his or her favor. [Citation.] As the moving party, 

the defendant must show that the plaintiff has not established, 

and reasonably cannot be expected to establish, one or more 

elements of the cause of action in question.” (Patterson v. 

Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499–500.)

In conducting its de novo review, the appellate court 

considers “all of the evidence the parties offered in connection 

with the motion (except that which the court properly excluded) 

and the uncontradicted inferences the evidence reasonably 

supports.” (Merrill v. Naveger, Inc. (2001) 26 Cal.4th 465, 476 

(Merrill).)

B. Legal Principles

1. Section 1102.5

“Section 1102.5 provides whistleblower protections to 

employees who disclose wrongdoing to authorities.” (Lawson v. 

PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 

(Lawson).) “The purpose of [this statute] is to ‘encourag[e] 

workplace whistle-blowers to report unlawful acts without 

fearing retaliation.’” (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 287.)

In Lawson, supra, 12 Cal.5th 703, the court clarified “the 

applicable framework for litigating and adjudicating section 
21

1102.5 whistleblower claims,” holding that the provisions of 

Labor Code section 1102.6 govern that analysis, not the threepart burden shifting construct developed under McDonnell 

Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). 

(Lawson, supra, 12 Cal.5th at p. 712.) The court explained, 

“[s]ection 1102.6 provides the governing framework for the 

presentation and evaluation of whistleblower retaliation claims 

brought under section 1102.5. First, it places the burden on the 

plaintiff to establish, by a preponderance of the evidence, that 

retaliation for an employee’s protected activities was a 

contributing factor in a contested employment action. The 

plaintiff need not satisfy McDonnell Douglas in order to 

discharge this burden. Once the plaintiff has made the required 

showing, the burden shifts to the employer to demonstrate, by 

clear and convincing evidence, that it would have taken the 

action in question for legitimate, independent reasons even had 

the plaintiff not engaged in protected activity.” (Id. at p. 718.)

2. FEHA Retaliation

Plaintiffs’ FEHA retaliation claim is evaluated under the 

three-part burden shifting construct that has evolved from 

McDonnell Douglas, supra, 411 U.S. 792. “[I]n order to establish 

a prima facie case of retaliation under the FEHA, a plaintiff must 

show (1) he or she engaged in a ‘protected activity,’ (2) the 

employer subjected the employee to an adverse employment 

action, and (3) a causal link existed between the protected 

activity and the employer’s action. [Citations.] Once an 

employee establishes a prima facie case, the employer is required 

to offer a legitimate, nonretaliatory reason for the adverse 
22

employment action. [Citation.] If the employer produces a 

legitimate reason for the adverse employment action, the 

presumption of retaliation ‘“‘drops out of the picture,’”’ and the 

burden shifts back to the employee to prove intentional 

retaliation. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 

Cal.4th 1028, 1042 (Yanowitz).)

C. Analysis

1. Evidentiary Rulings

Citing to the standard on review that precludes us from 

considering evidence that the trial court properly excluded, the 

City maintains that plaintiffs failed to address adequately in 

their opening brief the court’s adverse evidentiary rulings. 

According to the City, although the court sustained 176 of its 258

numbered objections, plaintiffs failed to raise a challenge to any 

of those specific objections, choosing instead to argue generally 

that the court committed legal error to the extent it sustained the 

City’s objections based on the doctrine of issue preclusion. 

Because plaintiffs failed to identify specific objections or provide 

reasoned explanation as to why the court erred in excluding a 

specific portion of their proffered testimony, the City concludes 

they waived any challenge on appeal to the court’s evidentiary 

rulings.

For purposes of our analysis, we will assume, without 

deciding, that (1) plaintiffs adequately preserved their issuepreclusion challenges to the paragraphs of their declarations 

specified in their opening brief; (2) the trial court erroneously 
23

excluded that testimony relying only on that ground7; and (3) the 

testimony excluded on such grounds should therefore be 

considered in our analysis of the issues.

2. Section 1102.5 Claim

a. Failure to Move Under Lawson Standard

Plaintiffs contend that the trial court erred when 

considering the motion on their section 1102.5 claim because the 

City moved for summary judgment under the wrong standard, 

namely, the three-part burden shifting construct outlined in 

McDonnell Douglas, supra, 411 U.S. 792. Citing Scheer v. 

Regents of the University of California (2022) 76 Cal.App.5th 904 

(Scheer), plaintiffs conclude that “the City’s failure to use the 

correct standard in its motion, a mistake the trial court did not 

address in its ruling, requires reversal of the summary resolution 

of the section 1102.5 cause of action.” We disagree.

7 At page 48, footnote 4, of the opening brief, plaintiffs

concede that the trial court excluded other paragraphs of their 

declarations “for which there was no issue preclusion objection”,

but they do not adequately address the other grounds upon which 

those exclusionary rulings were based. We therefore conclude 

plaintiffs waived any challenges to the exclusion of that 

testimony and do not consider it in our analysis of the issues. 

Plaintiffs also concede in their reply that they did not address the 

trial court’s exclusion of certain testimony of Alexander 

Lawrence, James Willis Morgan, and Berkenkamp in their 

opening brief. They have thereby waived any reliance upon that 

testimony on appeal.
24

Here, unlike in Scheer, supra, 76 Cal.App.5th 904, 

plaintiffs argued in their opposition that the Labor Code section 

1102.6 clear and convincing evidence standard should apply to 

their whistleblower claim and, following the issuance of the 

decision in Lawson, supra, 12 Cal.5th 703, briefed that decision 

for the trial court before the summary judgment hearing. We 

therefore assume the court followed the Lawson analytical 

framework, and plaintiffs do not affirmatively demonstrate 

otherwise. (See Sweetwater Union High School Dist. v. Julian 

Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 981

[The reviewing court is required to presume the order is correct 

and indulge all presumptions to support it on matters as to which 

the record is silent. The appellants bear the burden of

affirmatively showing error].)

In addition, because we review the trial court’s ruling de 

novo, we can apply the Lawson, supra, 12 Cal.5th 703 standard 

to the evidence in the record on the motion and review the trial 

court’s ruling under the correct analytical framework, without 

reversing on procedural grounds and remanding for a 

redetermination of the motion. (See Vatalaro v. County of 

Sacramento (2022) 79 Cal.App.5th 367, 379–380 [trial court 

decided a summary judgment motion prior to Lawson, applying 

the incorrect three-part standard, and appellate court applied 

correct Lawson standard de novo].)

b. Plaintiffs’ Burden

We first consider whether plaintiffs met their initial burden 

to establish a case of whistleblower retaliation under section 
25

1102.5.

8 As we discuss above, plaintiffs had the initial burden of 

establishing, by a preponderance of the evidence, that (1) they 

engaged in protected activity; (2) they suffered an adverse 

employment action; and (3) retaliation for the protected activity 

was a contributing factor in the adverse employment action. 

(Lawson, supra, 12 Cal.5th at p. 718.)

i. protected activity

To show engagement in protected activity under section 

1102.5, subdivision (b), an employee must only produce evidence 

of a reasonable belief that there was a violation of a statute, 

regulation, or rule. (See Nejadian v. County of Los Angeles (2019) 

40 Cal.App.5th 703, 719 [“under subdivision (b) of section 1102.5 

. . . the employee must show only that he or she reasonably

believed that there was a violation of a statute, rule, or 

regulation”]; Ross v. County of Riverside (2019) 36 Cal.App.5th 

580, 583 [section 1102.5, subdivision (b) “requires only that an 

8 Section 1102.5, subdivision (b) provides: “An employer, or 

any person acting on behalf of the employer, shall not retaliate 

against an employee for disclosing information, or because the 

employer believes that the employee disclosed or may disclose 

information, to a government or law enforcement agency, to a 

person with authority over the employee or another employee 

who has the authority to investigate, discover, or correct the 

violation or noncompliance, or for providing information to, or 

testifying before, any public body conducting an investigation, 

hearing, or inquiry, if the employee has reasonable cause to 

believe that the information discloses a violation of state or 

federal statute, or a violation of or noncompliance with a local, 

state, or federal rule or regulation, regardless of whether 

disclosing the information is part of the employee’s job duties.”
26

employee disclose information and that the employee reasonably 

believe the information discloses unlawful activity”].)

We will assume that both plaintiffs presented sufficient 

evidence showing that, when they filed the consolidated action, 

they were protesting and seeking redress for perceived violations 

of their rights under Government Code section 12940, subdivision 

(h)9 and, thus, that they established they engaged in protected 

activity.

ii. adverse action

It is undisputed that plaintiffs were subjected to an 

internal affairs investigation and terminated from their 

employment. Those facts were sufficient to satisfy plaintiffs’ 

burden of showing that they were subjected to an adverse 

employment action. (See St. Myers v. Dignity Health (2019) 44 

Cal.App.5th 301, 315 [actual discharge is a materially adverse 

employment action].)

iii. contributing factor

“Section 1102.6 requires whistleblower plaintiffs to show 

that retaliation was a ‘contributing factor’ in their termination, 

demotion, or other adverse action. This means plaintiffs may 

9 Government Code section 12940, subdivision (h) makes it 

unlawful for an employer “to discharge, expel, or otherwise 

discriminate against any person because the person has opposed 

any practices forbidden under this part or because the person has 

filed a complaint, testified, or assisted in any proceeding under 

this part.”
27

satisfy their burden of proving unlawful retaliation even when 

other, legitimate factors also contributed to the adverse action.

(See, e.g., State Comp. Ins. Fund v. Ind. Acc. Com. (1959) 176 

Cal.App.2d 10, 17 . . . [describing a contributing factor standard 

as one in which the conduct at issue need not be the ‘exclusive 

cause’ of the plaintiff’s injuries]; Rookaird v. BNSF Ry. Co. (9th 

Cir. 2018) 908 F.3d 451, 461 . . . [‘“A ‘contributing factor’ includes 

‘any factor, which alone or in connection with other factors, tends 

to affect in any way the outcome of the decision’”’].)” (Lawson, 

supra, 12 Cal.5th at pp. 713–714.)

Plaintiffs contend that they met their initial burden of 

showing, by a preponderance of evidence, that their pursuit of the 

consolidated action was a contributing factor to their 

terminations. According to plaintiffs, the timing of the internal 

affairs investigation against them—four days after the adverse 

ruling in the consolidated action—together with the City’s failure 

to interview them or provide an opportunity to explain their 

inconsistent discovery responses, supported a reasonable 

inference that they were terminated “as a result of [that] action.” 

We disagree.

The timing of the internal affairs investigation does not 

support a reasonable inference that retaliation for plaintiffs’ 

lawsuits was a contributing factor to the adverse employment 

action. Beginning in 1997, Vargas filed a total of five prior 

lawsuits against the City and Orduno filed the first of his two 

prior lawsuits in 2014. Yet the City did not initiate the internal 

affairs investigation until years later, in April 2016. Moreover, 

the written discovery responses which prompted the internal 

affairs investigation came to light during the summary judgment 

proceedings in the consolidated action and were expressly relied 
28

upon by the trial court in that action in making its April 14, 2016, 

summary judgment ruling. Thus, the opening of an investigation 

shortly after the issuance of that ruling does not, by itself, 

suggest a link between plaintiffs’ terminations, over a year later, 

and their pursuit of the consolidated action. If anything, the 

timing is inconsistent with an inference of retaliation because

once the problematic responses came to light, the City took them 

seriously by immediately undertaking formal administrative 

action in response and considering the issue for over a year.

Similarly, the failure of the Department to interview the 

officers during the internal phase of the investigation, and before 

the Skelly hearings,10 did not support a reasonable inference of 

retaliation. Given the serious nature of the allegations of 

dishonesty and the straightforward evidence that it occurred, a 

trier of fact could infer little, if anything, from the City’s decision 

to forego interviews.

10 A Skelly meeting or hearing refers to the due process rights 

afforded to public employees prior to adverse employment actions 

by their employer under Skelly v. State Personnel Bd. (1975) 15 

Cal.3d 194 (Skelly). “‘What Skelly requires is unambiguous 

warning that matters have come to a head, coupled with an 

explicit notice to the employee that he or she now has the 

opportunity to engage the issue and present the reasons opposing 

such a disposition. Moreover, the opportunity to respond must 

come after the notice of intention to dismiss.’ [Citation.]” 

(LaMarr v. Regents of the University of California (2024) 101 

Cal.App.5th 671, 675.)

Here, plaintiffs were each given the opportunity to explain 

their inconsistent discovery responses at a Skelly hearing after 

their notices of termination, a fact that serves to undercut any 

inference of retaliation from the City’s failure during the 

investigation to seek such explanations from them.
29

The serious nature of the dishonest conduct at issue also 

renders the excuses plaintiffs proffered for the misleading 

discovery responses implausible. Chief Luna’s undisputed 

testimony established that the City treated any act of 

untruthfulness by its officers as a terminable offense. 

Notwithstanding that policy, plaintiffs both maintained that they 

pre-signed verification forms stating under oath that the matters 

in “the foregoing document” to which the form was attached were 

true and “[knew] its contents.” But in their subsequent 

declarations explaining their responses, they maintained that 

they had no knowledge at the time they made those verifications 

as to which documents their forms would be attached, much less 

the content of those documents. Thus, their pre-signing excuse 

was itself an admission to an act of dishonesty.11

In addition, the verification forms had different dates, some 

of which were handwritten, others of which were typed, and one 

of which was undated. Those facts contradict plaintiffs’ 

suggestion that they were all signed on the same occasion 

without any other information included on the forms.

Finally, plaintiffs’ assertion that they did not provide any of 

the information in the discovery responses and did not know who 

had supplied such information was facially incredible. (See 

People v. Schlimbach (2011) 193 Cal.App.4th 1132, 1142, fn. 9 

11 Orduno states in his declaration that the signature on one 

verification form, attached to the response containing his seven 

citations statement, does not appear to be his. But even if we 

assume that testimony raised a triable issue concerning whether 

he gave false testimony based on that particular statement, he 

nevertheless admits that he signed the other forms on which the 

other sustained allegations of dishonesty were based.
30

[“trial court may weigh the credibility of a declaration submitted 

in opposition to a summary judgment motion and grant the 

motion ‘where the declaration is facially so incredible as a matter 

of law that the moving party otherwise would be entitled to 

summary judgment.’ (Estate of Housely (1997) 56 Cal.App.4th 

342, 359–360.)”].) The misstatements in the discovery responses 

were not created out of whole cloth. Instead, in many instances,

they were consistent with the facts alleged in the complaints filed 

in the consolidated action, including, for example, Vargas’s acting 

sergeant and race lawsuit statements and Orduna’s lack of 

assistance statement. Further, the discovery misstatements

were included within responses containing other accurate 

information in terms of the described events, such as Klein’s 

detriment comment and whether plaintiffs were required to wear 

audio recorders. There is no plausible explanation for who else, 

aside from plaintiffs, could have provided that information. 

Moreover, plaintiffs’ assertion that they did not provide the 

content of the discovery responses was inconsistent with their 

suggestion that their later contrary deposition testimony was 

based on their misunderstanding of a question. We therefore 

conclude that plaintiffs did not meet their initial burden to 

establish, by a preponderance of the evidence, that retaliation for 

plaintiffs’ protected activities was a contributing factor in their 

adverse employment actions.
31

3. FEHA Retaliation Claim

For the reasons discussed above, plaintiffs also did not 

submit sufficient evidence to satisfy their prima facie burden 

under their FEHA retaliation claim to show there was a causal 

link between their protected activities and the adverse action. 

(Yanowitz, supra, 36 Cal.4th at p. 1042.)
32

IV. DISPOSITION

The judgment is affirmed. The City is awarded costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

LEE, J.

 Judge of the San Bernardino Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.