Filed 5/23/23 Irvin v. City 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

TERESA IRVIN,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES,

Defendant and Respondent.

 B315165

 (Los Angeles County

 Super. Ct. No.

BC690975)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Jon R. Takasugi, Judge. Reversed and 

remanded.

Law Offices of Gregory W. Smith, Gregory W. Smith; 

Koron & Podolsky, Boris Koron, Daniel J. Podolsky; Benedon & 

Serlin, Douglas G. Benedon and Judith E. Posner for Plaintiff 

and Appellant.
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Hydee Feldstein Soto, City Attorney, Scott Marcus, Chief 

Assistant City Attorney, Sara Ugaz and Shaun Dabby Jacobs, 

Deputy City Attorneys, for Defendant and Respondent.

______________________________

Plaintiff and appellant Teresa Irvin (Irvin) filed this action 

against her employer, defendant and respondent City of 

Los Angeles (City), for whistleblower retaliation in violation of 

Labor Code section 1102.5.1 Relying on the burden-shifting 

framework set forth in McDonnell Douglas Corp. v. Green (1973) 

411 U.S. 792 (McDonnell Douglas) to analyze Irvin’s claim, the 

City moved for summary judgment. The trial court likewise 

applied the McDonnell Douglas framework and granted the City’s 

motion. Irvin appealed.

While this appeal was pending, the California Supreme 

Court issued its decision in Lawson v. PPG Architectural 

Finishes, Inc. (2022) 12 Cal.5th 703 (Lawson), which clarified 

that section 1102.6—not McDonnell Douglas—“provides the 

governing framework for the presentation and evaluation of 

whistleblower retaliation claims brought under section 1102.5.” 

(Lawson, supra, at p. 718.)

Because its moving papers did not employ the correct legal 

framework, the City failed to meet its burden on summary 

judgment and its motion should have been denied. We therefore 

reverse the judgment and remand for further proceedings.

1 All further statutory references are to the Labor Code 

unless otherwise indicated.
3

BACKGROUND

I. The Complaint

Irvin, a Los Angeles Police Department detective, filed a 

complaint asserting a single cause of action against the City for 

retaliation in violation of section 1102.5. Irvin alleged that her 

commanding officer “falsif[ied] . . . time-sheets . . . by claiming 

hours worked while conducting personal errands.” Specifically, 

the commanding officer “would routinely go home to cook and/or 

take care of her ‘family’ of feral cats” and would also require other 

officers to care for the cats during work hours. Irvin alleged that 

when she reported this “unlawful conduct” she was subjected to 

retaliation, including receiving numerous write-ups and being 

transferred to another division.

II. Summary Judgment

A. The City’s motion

The City moved for summary judgment, contending that 

“the burden[-]shifting analysis of McDonnell Douglas” applied.

The City explained that framework as follows: “[Irvin] carries 

the initial burden of establishing a prima facie case by showing 

that: (1) she engaged in protected activity; (2) the City subjected 

her to an adverse employment action; and (3) there exists a 

causal link between the protected activity and the adverse 

employment action. [Citation.] Assuming a plaintiff can 

establish a prima facie case, the defendant employer can then 

produce evidence of a legitimate non-retaliatory reason for the 

alleged adverse employment action, which the plaintiff can only 

rebut with ‘substantial evidence of pretext.’ [Citation.]” (Italics 

omitted.)

The City argued that Irvin could not establish a prima facie 

case of retaliation because (a) she did not suffer an adverse 
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employment action, and (b) there was no causal link between her 

protected activity and the employment action. Alternatively, if 

Irvin had made a prima facie case, the City contended that it was 

still entitled to summary judgment because its actions were 

taken for legitimate and nonretaliatory reasons and that Irvin 

could not meet her burden of demonstrating that those reasons 

were pretextual.

B. Irvin’s opposition

Irvin opposed the City’s motion, also following the 

McDonnell Douglas framework. Addressing the arguments 

raised by the City, Irvin contended that triable issues of material 

fact existed as to whether she could make a prima facie case of 

retaliation. She also argued that sufficient circumstantial 

evidence established that the City’s proffered legitimate business 

reasons for its employment actions were pretextual.

C. The City’s reply

The City filed a reply, which again employed the 

McDonnell Douglas framework.

D. The trial court’s order

After entertaining oral argument, the trial court granted 

the City’s motion for summary judgment Although the court did 

not explicitly cite McDonnell Douglas, it analyzed Irvin’s claim 

under that framework.

The trial court found that Irvin, having presented evidence 

that an administrative transfer could limit her opportunities for 

future promotion, had made a prima facie showing that she had 

suffered an adverse employment action.2 The court also found 

2 The trial court found that Irvin had not met her burden of 

showing that the issuance of comment cards constituted an 

adverse employment action, as her “evidence d[id] not support a 
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that Irvin had made a prima facie showing, based on temporal 

proximity, that a causal nexus existed between her protected 

activity and the adverse employment action.

The City, however, had met its burden of showing that it 

had a legitimate, nonretaliatory reason for transferring Irvin—

“to be given a ‘fresh start with new supervisors and coworkers.’”

The trial court then explained that the burden shifted to 

Irvin to show that the City’s “reason was a pretext”—that is,

Irvin’s “transfer was at least in part motivated by the fact that 

she had previously complained about improper practices by [her 

commanding officer].” The court concluded that Irvin had failed 

to meet this burden and therefore granted summary judgment for 

the City.

III. Judgment; appeal

The trial court subsequently entered judgment in favor of 

the City. This timely appeal ensued.

DISCUSSION

I. Standard of Review

Summary judgment is properly granted where “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).) A 

defendant moving for summary judgment bears the burden of 

showing that at least one element of a cause of action “cannot be 

established, or that there is a complete defense to the cause of 

action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “To carry its 

initial burden when the motion is directed to the plaintiff’s case 

reasonable inference that the issuance of four comment cards is 

reasonably likely to adversely and materially affect an employee’s 

opportunity for advancement in his or her career.”
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rather than an affirmative defense, a defendant must present 

evidence that either ‘conclusively negate[s] an element of the 

plaintiff’s cause of action’ or ‘show[s] that the plaintiff does not 

possess, and cannot reasonably obtain,’ evidence necessary to 

establish at least one element of the cause of action. [Citation.] 

Only after the defendant carries that initial burden does the 

burden shift to the plaintiff ‘to show that a triable issue of one or 

more material facts exists as to the cause of action or a defense 

thereto.’ [Citation.]” (Luebke v. Automobile Club of Southern 

California (2020) 59 Cal.App.5th 694, 702–703.)

We review a trial court’s order granting summary judgment 

de novo, liberally construing the evidence in support of the party 

opposing summary judgment and resolving doubts concerning the 

evidence in that party’s favor. (Gonzalez v. Mathis (2021) 

12 Cal.5th 29, 39.)

II. Framework for Adjudicating Section 1102.5 Claims

Section 1102.5 is a whistleblower statute that, as relevant 

here, “prohibits an employer from retaliating against an 

employee for sharing information the employee ‘has reasonable

cause to believe . . . discloses a violation of state or federal 

statute’ or of ‘a local, state, or federal rule or regulation’ with a 

government agency, with a person with authority over the 

employee, or with another employee who has authority to 

investigate or correct the violation. (§ 1102.5, subd. (b).)” 

(Lawson, supra, 12 Cal.5th at p. 709.)

As first enacted in 1984, section 1102.5 “supplied only a set 

of substantive protections against whistleblower retaliation, 

unaccompanied by any provision setting forth procedures for 

proving retaliation. [Citation.]” (Lawson, supra, 12 Cal.5th at 

p. 709.) In 2003, the Legislature filled this gap by adding
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section 1102.6. (Lawson, supra, at p. 709.) Section 1102.6 

provides: “In a civil action or administrative proceeding brought 

pursuant to Section 1102.5, once it has been demonstrated by a 

preponderance of the evidence that an activity proscribed by 

Section 1102.5 was a contributing factor in the alleged prohibited 

action against the employee, the employer shall have the burden 

of proof to demonstrate by clear and convincing evidence that the 

alleged action would have occurred for legitimate, independent 

reasons even if the employee had not engaged in activities 

protected by Section 1102.5.”

After the enactment of section 1102.6, some courts 

continued to apply the three-part McDonnell Douglas burdenshifting framework to evaluate section 1102.5 claims. (See 

Lawson, supra, 12 Cal.5th at pp. 707, 711–712.) “Under that 

approach, the employee must establish a prima facie case of 

unlawful discrimination or retaliation. [Citation.] Next, the 

employer bears the burden of articulating a legitimate reason for 

taking the challenged adverse employment action. [Citation.] 

Finally, the burden shifts back to the employee to demonstrate 

that the employer’s proffered legitimate reason is a pretext for 

discrimination or retaliation. [Citation.]” (Id. at p. 708.)

Last year, our Supreme Court held “that section 1102.6, 

and not McDonnell Douglas, supplies the applicable framework 

for litigating and adjudicating section 1102.5 whistleblower 

claims.” (Lawson, supra, 12 Cal.5th at p. 712.) Section 1102.6 

first places the burden on the employee to establish, by a 

preponderance of the evidence, “that the employee’s protected 

whistleblowing was a ‘contributing factor’ to an adverse 

employment action.” (Lawson, supra, at p. 712.) This burden 

may be satisfied “even when other, legitimate factors also 
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contributed to the adverse action. [Citations.]” (Id. at pp. 713–

714.) If the employee makes that threshold showing, the burden 

shifts to the employer to demonstrate, by clear and convincing 

evidence, “that the alleged adverse employment action would 

have occurred ‘for legitimate, independent reasons’ even if the 

employee had not engaged in protected whistleblowing activities. 

[Citation.]” (Id. at p. 712.)

In contrast to the McDonnell Douglas framework, “[u]nder 

section 1102.6, a plaintiff does not need to show that the 

employer’s nonretaliatory reason was pretextual. Even if the 

employer had a genuine, nonretaliatory reason for its adverse 

action, the plaintiff still carries the burden assigned by statute if 

it is shown that the employer also had at least one retaliatory 

reason that was a contributing factor in the action.” (Lawson, 

supra, 12 Cal.5th at pp. 715–716.)

III. The City Did Not Satisfy Its Burden on Summary Judgment

The parties agree that, as held in Lawson, section 1102.6 

provides the proper framework for analyzing section 1102.5 

whistleblower retaliation claims. The parties disagree, however, 

on how this rule affects the outcome of this appeal. Relying on 

Scheer v. Regents of the University of California (2022) 

76 Cal.App.5th 904 (Scheer), Irvin urges us to reverse the grant 

of summary judgment on the ground that the City’s moving 

papers failed to employ the framework mandated by 

section 1102.6. The City asks us to follow instead the example 

set in Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 

367 (Vatalaro) and substantively review and affirm the summary

judgment using the section 1102.6 framework in the first 

instance.
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In Scheer, the employer successfully moved to summarily 

adjudicate a section 1102.5 cause of action utilizing the 

McDonnell Douglas framework. (Scheer, supra, 76 Cal.App.5th 

at p. 914.) Lawson was issued while the plaintiff’s appeal was 

pending. (See Scheer, supra, at pp. 912–913.) Division Three of 

the Second District Court of Appeal reversed, explaining that 

because the employer’s moving papers in the trial court “failed to 

employ the applicable framework prescribed by . . . 

section 1102.6,” the employer had not met its initial burden on 

summary adjudication and its motion should have been denied. 

(Scheer, supra, at p. 914.) Rejecting the employer’s suggestion 

that it could review the grant of summary adjudication and 

affirm using the proper framework, the Scheer court stated: “Our 

role as an appellate court is to review the trial court’s order on 

the motion the [employer] actually made in the trial court, not to 

rule in the first instance on whether the [employer is] entitled to 

summary adjudication on the [section 1102.5] cause of action in 

light of the . . . section 1102.6 framework.” (Scheer, supra, at 

p. 915.)

In contrast, in Vatalaro, the Third District Court of Appeal 

affirmed summary judgment in an action brought under 

section 1102.5 even though the employer had pointed to the 

wrong standard in its motion. (Vatalaro, supra, 79 Cal.App.5th 

at pp. 371, 383–384.) The Vatalaro court “conclude[d] that the 

[employer]’s undisputed evidence would require a reasonable 

factfinder to find it ‘highly probable’ that the” adverse 

employment action “would have occurred for legitimate, 

independent reasons even if” the employee had not engaged in 

allegedly protected conduct. (Vatalaro, supra, at p. 386, italics 

added.) Thus, the employer had “supplied sufficient evidence to 
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satisfy the more demanding standard under section 1102.6.” 

(Vatalaro, supra, at p. 384.)

Under the circumstances present here, we elect to follow 

Scheer. Because the City’s “moving papers in the trial court 

failed to apply the . . . section 1102.6 framework, [the City] failed 

to meet [its] threshold burden” and the motion for summary 

judgment should have been denied. (Scheer, supra, 

76 Cal.App.5th at p. 915; see also Ryan v. Real Estate of Pacific, 

Inc. (2019) 32 Cal.App.5th 637, 642 [“If the defendant fails to 

make [its] initial showing [of entitlement to summary judgment], 

it is unnecessary to examine the plaintiff’s opposing evidence and 

the motion must be denied”].)

Basic principles of fairness also support this approach. 

“Where a remedy as drastic as summary judgment is involved, 

due process requires a party be fully advised of the issues to be 

addressed and be given adequate notice of what facts it must 

rebut in order to prevail. [Citation.]” (San Diego Watercrafts, 

Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) We 

cannot foreclose the possibility that Irvin might have presented 

different evidence or made different arguments in her opposing 

papers had the City applied the proper legal framework below.

“Now that Lawson has clarified the law,” the City is not 

precluded on remand from moving for summary judgment 

utilizing the proper section 1102.6 framework. (Scheer, supra, 

76 Cal.App.5th at p. 915.)

All other issues are moot.
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DISPOSITION

The judgment is reversed. On remand, the City may move 

for summary judgment in accordance with the framework set 

forth in section 1102.6. The parties are to bear their own costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.*

KWAN

* Judge of the Los Angeles County Superior Court, assigned 

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

California Constitution.