Filed 5/23/ 23 I rvin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b ). This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

TERESA IRVIN,

Plaintiff and Appellant,

v.

CITY OF L OS ANGELE S,

D efendant 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. Rever sed and
remanded

.

Law Offices of Gregory W . Smit h, Gregory W. Smith;
Koron & Podolsky, Boris Koron, Daniel J. Podolsky; Benedon & Serlin, Douglas G. Benedon and Judith E. Posner for Plaintiff and Appellant.2 Hydee Feldstein Soto, City Attorney, Scott Marcus, Chi ef Assistant City Attorney, Sara Uga z and Shaun Dabby Jacobs

, Deputy City Attorney s , 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 wh istleb lower 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)

4 11 U.S. 792 (

McDonnell Douglas ) to analyze Irvin’s claim , the City moved for summar y judgmen t

. Th e 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. (202 2) 12 Cal .5th 7 03 ( Lawson ), which clarified
that section 1102.6

— not McDonnell Douglas

— “provi des the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5.” ( Lawson

, supra , at p. 718.)
Beca use its m oving papers did not employ the correct legal framework, the City failed to meet it s 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 Compl aint
Irvi n , a L os 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 pe rsonal 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 all eged t hat
when she re ported this “unlawful conduct ” she was subjected to retaliation, including receiving numerous write

- ups and being
transferred to another division.
II

. Summary J udgment
A. The City’s motion
T he City moved for summary judgment

, contend ing th at “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 C ity su bjected 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 plaintif f can establish a prima facie case, the defendant employer can then

pro duce e vidence 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.)
T he City argued that Irvin could not estab lish a pr ima fa cie
case of retaliation because (a) she did not suffer an adverse4

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 co ntended t hat it was still entitled to summary judgment because it s actions were taken for legitimate and nonretaliatory reasons and that Irvin could not meet her burden of demonstrating that those reasons

were pr etextual

. B

. Irvin’s opposition Irvin oppos ed the Ci ty’s m otion , also following the McDonnell Douglas framework

. Addressin g the argu ments 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 argue d that su fficie nt circumstantial
evidence established that the Ci ty’s proffered legitimate business reasons for its employment actions were pretextual.
C

. The City’s reply The City file d a reply, which again employed the McDonnell Douglas framework.
D

. T he 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 tha t Irvin, having presented evidence that an administrative transfer could limit her opportunities for future promotion, had made a prima facie showing that she had

s uffered an adverse employment action. 2 The court also found

2 The trial cour t found that Irvin had not met her burden of show ing that the issuance of comment cards constituted an adverse emp loyment action, as her “evidence d[id] not support a5

that Irvin had made a prima fac ie showin g, bas ed 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, nonretal iatory reason for transferring Irvin

—

“ to be giv en 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 h ad previo usly c omplained 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

. Judg ment; appeal
The trial court subsequently entered judgment in fav or 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 entit led to a judgme nt as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A
defendant mo ving 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 caus e of

a ction.” (Code Civ. Proc., § 437c, subd. (p)(2).) “ T o carry its
initial burde n when the motion is directed to the plaintiff’s case

reasonable inference that the issuance of four comment cards is reasonably likely to adve r sely and materially affect an employee’s opportunity for advancement in his or her career.”6

rather than an affirmative defense, a defendant must present evidence that either ‘conclusively negate[s] an element o f 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 ini tial burd en doe s the burden shift to the plaintiff ‘to show that a triable issue of one or

mo re 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 69 4, 702

– 70 3.)
We review a trial court’s order granting summary judgment de novo, liberally con struing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in that party’s favor. ( Gonzalez v. Mathis (20 21)
12 Ca l.5th 29, 39.)
I I

. 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 belie ve

. . . discloses a violation of state or federal statute’ or of ‘a local, st ate, 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
investi gate or c orrect 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 setti ng forth proced ures for proving retaliation. [Citation.]” ( Lawson

, supra , 12 Cal.5th at

p. 709.) In 2003, the Legislature filled this gap by adding7

section 1102.6. ( Lawson

, supra , at p. 709.) Section 1102.6 provides : “In a civil action or administrat ive proce eding brought pursuant to Section 1102.5, once it has been demonstrated by a prepond erance 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 hav e the burden of proof to demonstrate by clear and convincing evidence that the alleg ed action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”
A fter t he enactm ent of se ction 1102.6, some courts continued to apply the three

- part McDonnell Douglas burden

shifting framework to evaluate section 1102.5 claims. ( See
Lawson

, supra , 12 Cal.5th at p p

. 707, 711

– 712 .) “Under that approach, the employee must establish a p rima faci e 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. [C itation.] Finally, the burden shifts back to the emplo yee to de monstr ate 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 fr amework
f or lit igating 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 preponde rance of the evidence, “that the employee’s protected

w histleblo wing w as a ‘contributing factor’ to an adverse employment action.” ( Lawson

, supra , at p. 712.) This burden may be satisfied “even when other, legitimate factors also8

contributed to the adver se action. [Citations.]” ( Id. at pp. 713

– 714.) If th e employe e make s 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 legitim ate, independent reasons’ even if the employee had not engaged i n prot ected 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 th e employe r 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 retaliator y reason that was a contributing factor in the action.” ( La wson , sup ra , 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. T he partie s dis a gree, however, on how this rule affects the outcome of this appeal. Relying on Scheer v. Regents of the Uni versity 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 mov i ng papers failed to employ the framework mandated by
section 1102.6. The City asks us to follo w 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 usin g the section 1102.6 framework in the first
instance.9 In Scheer

, the employer succes sfully 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 wa s iss u ed 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 applicab le fr a mework prescribed by

. . . section 1102.6,” the employer had not met its initial burden on summary adjudication and its motion should have been den ied. ( Scheer

, supra , at p. 914.) Rejecting the employer’s suggestion
that it could review th e grant o f sum m ary adjudication and affirm using the proper framework, the Scheer court stated: “Our role as an appellate court is to review the trial court’s or der on the motion the [employer] actually made in the trial court, not to
rule in the first in stance on whet h er the [employer is] entitled to summary adjudication on the [section 1102.5] cause of action in light of the

. . . section 1102.6 framework.” ( Sc heer

, supra , at

p. 915.)
In contrast , i n Vatalaro , the Third District Cour t of Appeal
affirmed summary judgm e nt 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.Ap p.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 r easons even if” the employee had not engaged in allegedly protected conduct. ( Vatalaro

, supra , at p. 3 86, i t alics added.) Thus, the employer had “ supplied sufficient evidence to10

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 Ci ty’s “mov ing p a pers 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 Ry an v. Rea l Est a te of Pacific,
Inc. (2019) 32 Cal.App.5th 637, 64 2 [“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 pri ncipl e s 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 or der to pr evail

. [Citation.]” ( San Diego Watercrafts,
Inc. v. W

ells 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 appl i ed the proper legal framework below. “Now that La wson 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 is sues a re moot.11 DISPOSITION The judgment is reversed . O n 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 OF FICIAL RE PORTS

.

_____________________, 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.