Opinion
B192892
10-29-2008
LYNN MAGNANDONOVAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Appellant.
Eisenberg and Hancock, Jon B. Eisenberg, William N. Hancock; Samuel J. Wells; and Michael P. King for Plaintiff and Appellant Rockard J. Delgadillo, City Attorney (Los Angeles County), and Claudia McGee Henry, Senior Assistant City Attorney, for Defendant and Appellant.
Not to be Published
I. INTRODUCTION
In People v. Hill (1998) 17 Cal.4th 800, 819-820, Associate Justice Kathryn Mickle Werdegar, speaking for a unanimous Supreme Court wrote: "Prosecutors . . . are held to an elevated standard of conduct. `It is the duty of every member of the bar to "maintain the respect due to the courts" and to "abstain from all offensive personality." (Bus. & Prof. Code, § 6068, subds. (b) and (f).) A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. (People v. Kelley (1977) 75 Cal.App.3d 672, 690.) As the United States Supreme Court has explained, the prosecutor represents "a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." (Berger v. United States (1935) 295 U.S. 78, 88.) Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve. [Citations.] [Citations.]" Here, we address a retaliation case in which plaintiff, a now terminated deputy city attorney, among other things admitted she angrily threatened a superior court commissioner that he would have to answer to his creator for a judicial ruling.
Defendant, the City of Los Angeles, appeals from a judgment, after a jury trial, in favor of plaintiff, Lynn Magnandonovan. Defendant contends: plaintiff failed to exhaust her administrative remedies under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.) and Labor Code section 1102.5; plaintiff failed to comply with the Government Claims Act (Gov. Code, § 810 et seq.); and there was no substantial evidence defendants reasons for discharging plaintiff were a pretext for retaliation. Plaintiff appeals from the judgment solely with respect to attorney fees. We conclude: defendant, a public entity, is not subject to liability on a common law wrongful discharge in violation of public policy claim; defendant waived its exhaustion arguments; a Fair Employment and Housing Act cause of action is not subject to the government claim requirement; and defendant presented strong, uncontradicted evidence of a legitimate, non-retaliatory reason for discharging plaintiff, in the face of which plaintiffs weak pretext evidence was insufficient as a matter of law to support a reasonable inference of intentional retaliation; therefore, the judgment must be reversed with directions to enter a judgment in defendants favor. Plaintiffs appeal relating to attorney fees thus has no merit.
II. BACKGROUND
Plaintiff joined the Los Angeles City Attorneys office as a law clerk in 1987 and as a Deputy City Attorney I in 1990. She received "paygrade" advances to Deputy City Attorney II in 1992 and to Deputy City Attorney III in 1998. On March 22, 2001, plaintiff filed an administrative complaint with the Department of Fair Employment and Housing alleging harassment and discrimination on the basis of gender, race, and national origin. The administrative complaint was settled on May 2, 2001. The settlement agreement provided, among other things, "[Plaintiff] shall be appointed the attorney in and supervisor over the newly established Hate Crimes Unit within the Criminal Branch of the [city attorneys office]." Nearly eight months later, on December 20, 2001, plaintiff was placed on paid administrative leave. This followed an incident in which plaintiff said a superior court commissioner would have to answer to his creator for a judicial ruling she disliked. Plaintiff filed a second administrative complaint on May 1, 2002, and received a right to sue letter. In her second administrative complaint, plaintiff alleged, "I believe I was subjected to employment discrimination and a hostile work environment because of my sex (female), race (Caucasian), and national origin (American) and in retaliation for complaining of discrimination and harassment and filing and resolving a claim pursuant to the Fair Employment and Housing Act." Also on May 1, 2002, plaintiff filed a government claim. On June 12, 2002, plaintiffs claim was denied. Defendant issued a June 28, 2002 notice of proposed termination. This was followed by a November 6, 2002 revised notice. Plaintiff filed this lawsuit on December 12, 2002. She was discharged one year later, on December 29, 2003.
The operative pleading is a March 19, 2004 third amended complaint. It contains six causes of action: gender discrimination in violation of the Fair Employment and Housing Act; retaliation in violation of the Fair Employment and Housing Act; retaliation in violation of public policy (Cal. Const., art. I, § 8; Fair Employment and Housing Act; Labor Code, § 1102.5; Los Angeles Admin. Code, Div. 4, Ch. 7, Art. 9.5; and 42 U.S.C. § 1983); discrimination and harassment in violation of public policy; intentional severe emotional distress infliction; and injunctive relief. The matter went to trial, however, only on two retaliation causes of action—in violation of the Fair Employment and Housing Act and in violation of public policy. The jury was instructed: "[Plaintiffs] claims for gender discrimination and harassment in violation of [the Fair Employment and Housing Act], discrimination and harassment in violation of public policy, intentional infliction of emotional distress, slander per se, invasion of privacy, declaratory relief and for an injunction are no longer issues in this case."
III. DISCUSSION
A. Defendant, A Public Entity, Is Immune From Liability On A Common Law Wrongful Discharge In Violation Of Public Policy Claim
It was error to submit the common law retaliation in violation of public policy cause of action to the jury. A common law claim for wrongful discharge in violation of public policy is unavailable against a public entity such as defendant. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 898-899.) Defendant noted this issue in a footnote to its new trial motion stating, "Plaintiffs public policy claim is also barred based on governmental immunity. Kemmerer v. County of Fresno, 200 Cal.App.3d 1426 (1988)." As discussed below, however, the error does not require that the judgment, insofar as it is premised on a violation of the Fair Employment and Housing Act, be reversed.
Under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, a common law tort action lies for wrongful discharge in violation of a firmly established public policy. This includes the public policies reflected in the Fair Employment and Housing Act. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160-1161 [disability discrimination]; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897 [age discrimination].) In Miklosy v. Regents of University of California, supra, 44 Cal.4th at pages 898-899, however, our Supreme Court held a Tameny claim does not lie against a public entity. (Accord, Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1514; Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 909; see Kemmerer v. County of Fresno, supra, 200 Cal.App.3d at p. 1437.) As noted above, this case was tried on two causes of action—retaliation in violation of the Fair Employment and Housing Act and a violation of fundamental public policy. The cause of action for retaliation in violation of public policy is a common law claim under Tameny. But a public policy violation claim does not lie against defendant, a public entity. (Miklosy v. Regents of University of California, supra, 44 Cal.4th at pp. 898-899; Ross v. San Francisco Bay Area Rapid Transit Dist., supra, 146 Cal.App.4th at p. 1514; Palmer v. Regents of University of California, supra, 107 Cal.App.4th at p. 909.)
But the error in submitting the Tameny cause of action to the jury does not require that the judgment be reversed insofar as it is premised on the Fair Employment and Housing Act. It is the general rule that, "[A] judgment will not be reversed on appeal if there is substantial evidence to support the verdict on any theory on which it might have been reached." (Clement v. State Reclamation Bd. (1950) 35 Cal.2d 628, 643, limited by Albers v. Los Angeles County (1965) 62 Cal.2d 250, 262, as discussed in Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 562-563; accord, Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673 [stating general rule]; Gillespie v. Rawlings (1957) 49 Cal.2d 359, 368-369, disapproved on another point in Nevarez v. Carrasco (1969) 1 Cal.3d 518, 522, as explained in Bozanich v. Kenny (1970) 3 Cal.3d 567, 570-571 [evidence supported one of two theories that went to the jury; error not prejudicial].) As explained in Rather v. City & County of San Francisco (1947) 81 Cal.App.2d 625, 636: "It is settled law that `a general verdict imports findings in favor of the prevailing party on all material issues, and if upon such a verdict one issue alone is sustained by the evidence and is not affected by any error, the want of evidence to sustain the finding on the other issues or any errors committed in regard to them cannot be prejudicial. (2 Cal.Jur., p. 1029. See, also, 24 Cal.Jur., p. 885.)" (Accord, Bresnahan v. Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153.) The special verdict form did not ask the jury to find separately on the two causes of action at issue. If we were to conclude there was sufficient evidence to support the retaliation in violation of the Fair Employment and Housing Act claim, then the jurys verdict would stand.
B. Defendant Waived Any Claim Of Failure To Exhaust Administrative Remedies
1. Fair Employment and Housing Act
Defendant argues: plaintiff failed to exhaust her Fair Employment and Housing Act administrative remedies as to her statutory retaliation claim; she filed her administrative complaint prior to the date on which her employment was terminated, and her administrative complaint did not allege retaliatory discharge. Plaintiff counters that defendant waived this issue by failing to raise it except by a footnote in its new trial motion. We agree.
Exhaustion of Fair Employment and Housing Act administrative remedies before the Department of Fair Employment and Housing is a prerequisite to a civil action under the Fair Employment and Housing Act. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 395-396; Rojo v. Kliger (1990) 52 Cal.3d 65, 83-84.) But there is a split of authority in the Courts of Appeal as to whether failure to exhaust administrative remedies is a waivable defect, or whether it is jurisdictional in the sense that it is nonwaivable. In Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 440-441, we, in dicta, described the failure to exhaust administrative remedies as a nonwaivable jurisdictional defect. In Hood, the plaintiff alleged he was a whistleblower who suffered retaliatory employment actions. The administrative remedy at issue arose under Government Code section 8547.8. We cited Supreme Court authority including Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291-293, and Sampsell v. Superior Court (1948) 32 Cal.2d 763, 773, disapproved on other grounds in Robinson v. Superior Court (1950) 35 Cal.2d 379, 385, 386-387. We noted there was a split in the decisional authority as to the waiver question. We concluded, "We need not resolve the foregoing dispute in the decisional authority. In the present case, the issue was raised in the trial court and has been preserved." (Id. at p. 441.) Notwithstanding our unwillingness to resolve the split in the decisional authority, Hood has subsequently been cited for the proposition that, "Failure to exhaust administrative remedy is a jurisdictional defect that may be raised at any time by the parties or the court." (Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749, 770 [Gov. Code, § 8547.12].)
The weight of authority, however, is to the effect that the failure to exhaust administrative remedies is a waivable defect. Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 219-222, is the leading case for that proposition. The appeal in Green was from a jury verdict for the former city employee in a wrongful termination action. The employee had failed to exhaust his administrative remedies under an agreement between defendant and a city employees association. The Court of Appeal for the Fourth Appellate District, Division One, noted: "It is clear that Green did not challenge his discharge except by this lawsuit. It is equally clear the City failed to pursue the [exhaustion] argument even when invited to do so by the trial court. The issue we must confront, then, is whether the City can waive the defense of a failure to exhaust administrative remedies." (Id. at p. 219.) The Court of Appeal further explained: Abelleira v. District Court, supra, 17 Cal.2d at pages 287-293, does not stand for the proposition that failure to exhaust administrative remedies involves subject matter jurisdiction; Abelleira discussed jurisdiction solely in the context of when a writ of prohibition will issue; and "Abelleira makes it abundantly clear that the exhaustion doctrine does not implicate subject matter jurisdiction but rather is a `procedural prerequisite [that is] `jurisdictional only in the sense that a courts failure to apply the rule in a situation where the issue has been properly raised can be corrected by the issuance of a writ of prohibition." (Green v. City of Oceanside, supra, 194 Cal.App.3d at p. 222). The Green court held jurisdiction is a flexible dogma the application of which requires a case-by-case analysis. (Ibid.) The Court of Appeal concluded: "[W]e do not know whether Green failed to pursue his administrative remedies because he believed it would be futile to do so. Perhaps the City agreed, initially, but having lost its case before a jury has now reconsidered that judgment call. We think it would be grossly unfair to allow a defendant to ignore this potential procedural defense at a time when facts and memories were fresh and put a plaintiff to the time and expense of a full trial, knowing it could assert the failure to exhaust administrative remedies if it received an adverse jury verdict. The exhaustion doctrine is simply a `procedural prerequisite (Abelleira, supra, 17 Cal.2d at p. 288) the City decided to forego. Having elected to put Green to his proof before a jury, the Citys dissatisfaction with that result is an insufficient reason for reversal." (Green v. City of Oceanside, supra, 194 Cal.App.3d at p. 222-223.)
Green has been followed in: Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 133-138 (Lab. Code, § 1102.5); Holland v. Union Pacific R. Co. (2007) 154 Cal.App.4th 940, 946 (Fair Employment and Housing Act); Keiffer v. Bechtel Corp. (1998) 65 Cal.App.4th 893, 895-901 (Fair Employment and Housing Act); Mission Housing Development Co. v. City and County of San Francisco (1997) 59 Cal.App.4th 55, 66-67 (tax refund claim); Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 259-260 (sheriffs department manual of policies and procedures); see Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1215-1216 (dictum); Coachella Valley Mosquito and Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080 (exhaustion doctrine, which is grounded on administrative autonomy and judicial efficiency concerns, is subject to exceptions); and Styne v. Stevens (2001) 26 Cal.4th 42, 58 (purpose of exhaustion doctrine is to reduce burden on courts while benefiting from agency expertise).
We conclude defendant waived its argument plaintiff failed to exhaust her administrative remedies by failing to raise and litigate the argument during the trial. Defendant notes its answer included, as an affirmative defense, failure to state a cause of action. Defendant cites Horacek v. Smith (1948) 33 Cal.2d 186, 191, for the proposition it can raise failure to exhaust administrative remedies at any time, including for the first time on appeal. Horacek was a contract breach action in which the Supreme Court held, "The objection that a complaint does not state facts sufficient to constitute a cause of action may be raised at any stage of the proceedings and, even for the first time upon appeal. (Code Civ. Proc., § 434 [see now § 430.80, subd. (a)].)" (Ibid.) Horacek did not consider and is not authority for the proposition that the failure to exhaust administrative remedies under the Fair Employment and Housing Act is a defect that may be raised at any time. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 243 ["It is axiomatic that an opinion is not authority for an issue not considered therein"]; People v. Banks (1993) 6 Cal.4th 926, 945 [same].)
2. Labor Code Section 1102.5
Defendant argues plaintiff was required to exhaust internal administrative remedies as a prerequisite to her Labor Code section 1102.5 claims. We need not address this argument at length. First, as discussed above, defendant waived the exhaustion issue by failing to timely raise it. Second, also as discussed above, plaintiffs claim for retaliation in violation of public policy—premised in part on the public policy reflected in Labor Code section 1102.5—does not lie against a public entity defendant.
Labor Code section 1102.5 states: "(a) An employer may not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. [¶] (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. [¶] (c) An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. [¶] (d) An employer may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment. [¶] (e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b). [¶] (f) In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section. [¶] (g) This section does not apply to rules, regulations, or policies which implement, or to actions by employers against employees who violate, the confidentiality of the lawyer-client privilege of Article 3 (commencing with Section 950), the physician-patient privilege of Article 6 (commencing with Section 990) of Chapter 4 of Division 8 of the Evidence Code, or trade secret information."
C. Plaintiffs Fair Employment and Housing Act Claim Is Not Subject To The Government Claims Act
Defendant contends plaintiffs claims are barred because she failed to file a wrongful discharge claim under the Government Claims Act (Gov. Code, § 810 et seq.). We disagree. A Fair Employment and Housing Act cause of action is not subject to the claim filing requirements of the Government Claims Act. (Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 710-711; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 868; see Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1360.)
D. Sufficiency of the Evidence
Defendant contends there was no substantial evidence its reasons for discharging plaintiff were a pretext for illegal retaliation. We conclude that, viewing the evidence in the light most favorable to plaintiff (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, abrogated on another point as stated in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926)—and although plaintiff established a prima facie case, and set forth some evidence to reject defendants explanation—her pretext evidence was insufficient as a matter of law to support a reasonable inference defendant acted with an illegal motive.
Government Code section 12940, subdivision (h), is the statutory basis for a Fair Employment and Housing Act retaliation cause of action. (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1161-1162; Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1035.) Government Code section 12940, subdivision (h) states: "It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶] . . . [¶] . . . For any employer, labor organization, employment agency, or person 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."
A Fair Employment and Housing Act retaliation claim is subject, at trial, to the three-stage burden-shifting test set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805. (Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th at p. 1042; Arteaga v. Brinks, Inc. (2008) 163 Cal.App.4th 327, 356; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476-479.) First, the plaintiff must establish a prima facie case of retaliation: the employee engaged in a protected activity; the employer subjected the employee to an adverse employment action; and there was a causal link between the protected activity and the adverse action. (Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th at p. 1042; Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1252; Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 614.) If the plaintiff establishes a prima facie case, a rebuttable presumption of retaliation arises. (St. Marys Honor Center v. Hicks (1993) 509 U.S. 502, 506; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) Here, plaintiff established a prima facie case of retaliation: she engaged in a protected activity by filing an administrative complaint with the Department of Fair Employment and Housing; she was subject to an adverse employment action in that she was fired; and there was a causal link between the protected activity and the adverse action—she was placed on paid administrative leave pending an investigation into her conduct less than eight months after her first Department of Fair Employment and Housing administrative complaint was settled.
Second, once the employee establishes a prima facie case, the burden shifts to the employer to rebut the presumption of retaliation. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 355-356; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112.) The employer rebuts the presumption by producing evidence it took the adverse employment action for a legitimate, non-retaliatory reason. (Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th at p. 1042; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at pp. 355-356.) The employers explanation "need not necessarily have been wise or correct" (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 358) nor "sound, fair, or correct, but only colorable enough that a rational jury could believe it to have been the employers true motivation. [Citation.]" (Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 112, fn. 12.) If the employer meets this burden, if it offers a facially sufficient lawful reason for the challenged action, the presumption of retaliation disappears. (Yanowitz v. LOreal USA, Inc., supra, 36 Cal.4th at p. 1042; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 112.)
Here, defendant produced evidence it terminated plaintiffs employment because she lacked professionalism, disrespected judicial officers, and engaged in conduct that negatively reflected on the city attorneys office. The incident that was the immediate trigger of defendants investigation occurred on November 27, 2001, in Commissioner (now Judge) Joseph Bidermans courtroom. Plaintiff had noticed a motion to revoke a convicted child molesters probation. Commissioner Biderman called the case at 8:30 a.m., but plaintiff was not present. She was stuck in traffic. Plaintiffs secretary so notified the court. Commissioner Biderman called the case a second time at 9:15 a.m. Plaintiff still was not present. At 9:22 a.m., Commissioner Biderman placed the matter off calendar. At 10:30 a.m., plaintiff telephoned Commissioner Bidermans court clerk, Gatanya Jones, and made wholly inappropriate comments. Among the improper comments was the statement that Commissioner Biderman would have to answer to "the creator" for what he had done.
At trial, plaintiff admitted as follows. On November 27, 2001, she failed to timely appear for a probation violation hearing in Commissioner Bidermans courtroom. Plaintiff telephoned Commissioner Bidermans courtroom clerk, Ms. Jones. Plaintiff learned that when she failed to appear, Commissioner Biderman had taken the matter off calendar. Plaintiff believed that as a result of Commissioner Bidermans action, the defendants probation would be terminated. Ms. Jones read Commissioner Bidermans minute order to plaintiff. Thereupon, plaintiff told Ms. Jones that part of what Commissioner Biderman had written in the court file was a lie. Plaintiff accused Commissioner Biderman of having a "personal vendetta" against her. Plaintiff said she was so upset about what Commissioner Biderman had done that, "[M]aybe I would file a complaint against him." In the telephone conversation, plaintiff told Ms. Jones that Commissioner Biderman "would have to answer to the creator" for his actions.
Ms. Jones advised Commissioner Biderman about the telephone call. Ms. Jones told Commissioner Biderman plaintiff: "was very angry, agitated, [and] upset"; was yelling, arguing about why the case was taken off calendar; and demanded to know why the matter was taken off calendar. Ms. Jones also told Commissioner Biderman that plaintiff said he "would be answering to God for what" had occurred. Commissioner Biderman understood plaintiffs remarks as a "veiled reference" to his homosexuality. Commissioner Biderman "felt sick about" plaintiffs remarks. Commissioner Biderman testified he: "felt very personally insulted"; "was very upset about it"; and "was in shock about the whole thing." Commissioner Biderman reported the incident to Judge Stephanie Sauter. Judge Sauter in turn reported the matter to plaintiffs supervisor, Maureen Siegel. Maureen Siegel reported the incident to Earl Thomas. Mr. Thomas reported what had occurred to Chief Deputy City Attorney Terree Bowers. This was sufficient evidence defendant had a legitimate, non-retaliatory reason for terminating plaintiffs employment as a deputy city attorney.
Third, once the defendant provides evidence of a non-retaliatory reason for its action, the plaintiff must show the employers proffered reason was a pretext for retaliation or offer other evidence of retaliatory motive. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.) The plaintiff must show by a preponderance of the evidence that the adverse employment action was in fact the result of an illegal motive—in this case retaliation—rather than other causes. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356; Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 112.) The Supreme Court has held: "In an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias. [Citations.]" (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356; see California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1023.) Pretext may be shown by direct evidence, such as remarks by a decision-maker reflecting a retaliatory motive. Or pretext may be demonstrated by circumstantial evidence, such as the timing of the decision. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816-817; Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 479.) The plaintiff bears the ultimate burden of persuasion on the issue of actual retaliation. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 356; Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 990.)
Plaintiff presented evidence she was: a conscientious, determined, hardworking, honest, and courteous deputy city attorney who had never been disciplined, threatened with an adverse employment action, or given a notice to correct deficiencies; she was placed on paid administrative leave less than eight months after the parties settled her initial Department of Fair Employment and Housing administrative complaint; and defendants ensuing investigation fell below industry standards. Moreover, plaintiff presented evidence that—following the settlement of her first Department of Fair Employment and Housing administrative complaint and her appointment as "attorney in and supervisor over" the new Hate Crimes Unit—her superiors isolated her and undermined her authority. Members of the city attorneys office were not advised that the Hate Crimes Unit had been created or that plaintiff was supervising it. Plaintiff was described to others as the "deputy in charge" of the unit, rather than the unit supervisor. Plaintiff was told she was not supervising anyone and therefore should not be referred to as a supervisor. Plaintiffs business cards identified her as "deputy in charge." Plaintiff was advised that, because she was not supervising anyone, she did not need to attend supervisors meetings. A supervisor failed to advise plaintiff of a meeting with the Los Angeles Police Departments task force on hate crimes. Plaintiff was excluded from a meeting with the city attorney and a representative of the Los Angeles County Commission on Human Relations. This was a meeting plaintiff had proposed. Plaintiff was not advised the city attorneys office was proposing new hate crime legislation nor was her input sought. In addition, a superior asked a law clerk to contact the district attorneys office to inquire about their hate crime prosecutions. This caused plaintiff professional embarrassment.
Notwithstanding plaintiffs showing, we conclude that in the face of strong, extensive, largely unrebutted evidence defendant had a legitimate, non-retaliatory reason for terminating her employment, her evidence was insufficient as a matter of law to support a reasonable inference defendant acted with an illegal, retaliatory motive. Both the United States and the California Supreme Courts have recognized there may be instances in which the employees pretext evidence is insufficient as a matter of law to support a reasonable inference the employer acted with an illegal motive. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 141-149; Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 353-354, 362.)
Reeves involved an age discrimination claim under the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.) (ADEA). In Reeves, the United States Supreme Court held that in some cases, even when the plaintiff establishes a prima facie case and introduces evidence of pretext, the defendant may be entitled to judgment as a matter of law: "[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employers asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. [¶] This is not to say that such a showing by the plaintiff will always be adequate to sustain a jurys finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendants explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employers decision, or if the plaintiff created only a weak issue of fact as to whether the employers reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. [Citation.] . . . [¶] Whether judgment as a matter of law is appropriate in any particular case will depend on a number of facts. Those include the strength of the plaintiffs prima facie case, the probative value of the proof that the employers explanation is false, and any other evidence that supports the employers case and that properly may be considered on a motion for judgment as a matter of law." (Reeves v. Sanderson Plumbing Products, Inc., supra, 530 U.S. at pp. 148-149.)
Federal appellate court decisions relying on the foregoing language in Reeves are in accord. (Swackhammer v. Sprint/United Management Co. (10th Cir. 2007) 493 F.3d 1160, 1168-1174 [plaintiffs evidence of pretext (disparate treatment) did not raise a triable issue as to the stated reasons for termination—improper relationships with vendors]; Hossack v. Floor Covering Associates of Joliet, Inc. (7th Cir. 2007) 492 F.3d 853, 858, 863 [judgment notwithstanding the verdict order setting aside $250,000 plaintiffs verdict affirmed where the employees spouses threatened to make a co-employees life "miserable"]; Turner v. Honeywell Federal Mfg. & Technologies, LLC (8th Cir. 2003) 336 F.3d 716, 723-724 [employee failed to demonstrate that the stated justification was false or discriminatory]; Peters v. Lincoln Elec. Co. (6th Cir. 2002) 285 F.3d 456, 471-475 [employees evidence he had good rapport with subordinates and a sound management style did not show the stated reasons for alleged discrimination (lack of leadership and communication skills, inability to adequately interface with external auditors, and absence of international experience needed for employers expanding worldwide needs) were pretextual]; Zapata-Matos v. Reckitt & Colman, Inc. (1st Cir. 2002) 277 F.3d 40, 47 [where the explanations for "termination [were] themselves consistent and not contradicted by either contemporaneous documents or statements made at termination or later," Reeves mandated entry of summary judgment]; Gray v. Toshiba America Consumer Products, Inc.(6th Cir. 2001) 263 F.3d 595, 600-601 ["Toshiba articulated a non-discriminatory reason for firing Gray, namely, that she committed an intentional, premeditated assault on a fellow employee after being warned by several superiors not to do so. Gray, however, has produced no evidence casting doubt on the credibility of this articulated reason"]; Roge v. NYP Holdings, Inc. (2nd Cir. 2001) 257 F.3d 164, 167-169 [employers downsizing and supervisors conclusion there were irregularities in the plaintiffs disability claims were sufficient to overcome pretext evidence]; Cha v. Henderson (8th Cir. 2001) 258 F.3d 802, 805-806 [supervisors improper reliance on plaintiffs sexual harassment outside the workplace was a neutral nondiscriminatory reason sufficient to withstand a pretext claim]; Dammen v. UniMed Medical Center (8th Cir. 2001) 236 F.3d 978, 982 ["assuming [plaintiff] has presented a prima facie case of age discrimination, the weakness of his prima facie case and the low probative value of his evidence that [defendants] explanation is false convinces us that he has failed to present a submissible case of age discrimination"]; Schnabel v. Abramson (2d Cir. 2000) 232 F.3d 83, 87-88 [prima facie case of age discrimination overcome by showing of neutral grounds for termination: "plaintiffs asserted contempt for Legal Aid clients, difficulty following instruction, `outright insubordination, and `inept[] performance"]; Chapman v. AI Transport (11th Cir. 2000) 229 F.3d 1012, 1031 ["leaving several employers in a recent and short period of time, or job-skipping, is an [eminently] reasonable basis upon which to choose between job applicants"].)
Similarly, federal district courts have applied Reeves in the context of different forms of unlawful discrimination and pretext claim contexts. (Allen v. City of Sturgis (W.D.Mich. 2008) 559 F.Supp.2d 837, 849 ["Allen has not provided an evidentiary foundation for a finding that the Citys stated reason for terminating him was a pretext (for FMLA-violative conduct) and that the City would not have terminated him if he had not taken FMLA leave"]; Lightner v. City of Wilmington, North Carolina (E.D.N.C. (2007) 498 F.Supp.2d 802, 816 ["In this instance, considering plaintiffs weak prima facie case and his testimony of record and arguments acknowledging the Departments motivation for acting, no reasonable jury could" find unlawful discrimination]; Scuderi v. Monumental Life Ins. Co. (E.D.Mich. 2004) 344 F.Supp.2d 584, 597 ["The particularized facts that were before [defendant] at the time that [the supervisor] made the decision to terminate [p]laintiff clearly establish that the reason given for terminating [p]laintiff-i.e., alteration of Ms. Frenczlis JEPS test-has a basis in fact"]; Webber v. International Paper Co. (D.Me. 2004) 326 F.Supp.2d 160, 169-170 ["In this case, the evidence is conclusive that Mr. Webber was included in the reduction in force because of his lack of professional qualifications: there was no showing that Mr. Oettinger or any of the other decisionmakers involved harbored discriminatory animus, and no suggestion that the decision to eliminate two project engineer positions was influenced by impermissible discrimination." (Fn. omitted.)]; Hunter v. St. Francis Hosp. (E.D.N.Y. 2003) 281 F.Supp.2d 534, 547 [the fact that the plaintiff had received unwarranted bonuses and pay increases in the past was insufficient evidence of pretext]; Wright-Khan v. Peoples Bank (D.Conn. 2003) 274 F.Supp.2d 205, 215-216 ["Here, any issue of fact as to the accuracy of the Banks prof[f]ered reason would be at least `only a weak issue of fact, and there is `abundant and uncontroverted independent evidence that no discrimination ha[s] occurred, given the complete lack of evidence that the Bank was motivated by Wright-Khans disability when it took any action against her"]; Morris v. Charter One Bank, F.S.B. (N.D.N.Y. 2003) 275 F.Supp.2d 249, 259-260 [where the plaintiffs age claim rested almost exclusively on the fact a replacement was younger, the pretext evidence was weak and the employer was entitled to judgment]; Newsom-Lang v. Warren Intern., Inc. (S.D.N.Y. 2003) 249 F.Supp.2d 292, 301 [instances of unprofessional conduct were sufficient to overcome pretext evidence that termination was motivated by the plaintiffs age]; Brunelle v. Cytec Plastics, Inc. (D.Me. 2002) 225 F.Supp.2d 67, 81 ["the picture that emerges is one in which an employer has made a notably strong showing that the termination in question was animated by perceived misconduct, to which an employee has responded with a notably weak showing of pretext"]; Eugene v. Rumsfeld (S.D.Tex. 2001) 168 F.Supp.2d 655, 677-678 [reduction in force]; Steiner v. Envirosource, Inc. (N.D.Ohio 2001) 134 F.Supp.2d 910, 920 [same].)
The California Supreme Court adopted the foregoing reasoning in Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pages 361-362. In Guz, a summary judgment case, the California Supreme Court explained that the employer submitted "competent, admissible evidence" of a legitimate reason, unrelated to discrimination, for terminating the employee. (Id. at p. 357.) Our Supreme Court then held that, "[The employee] thus had the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination occurred." (Ibid.) Earlier in the opinion, our Supreme Court held, "To survive summary judgment, [the employee] was thus obliged to point to evidence raising a triable issue—i.e., permitting an inference—that, notwithstanding [the employers] showing, its ostensible reasons were a mask for prohibited age bias." (Id. at p. 353.) Our Supreme Court summarized its ultimate conclusion thusly: "In the face of [the employers] strong and unrebutted showing that it took its actions for nondiscriminatory reasons, the evidence of age favoritism on which [the employee] relies manifestly lacks sufficient probative force to allow a finding of intentional age discrimination." (Id. at pp. 353-354.) The California Supreme Court explained that the question is not whether the employers "true reasons" for the adverse employment action were wise or correct; the ultimate issue is whether the employer acted with an illegal, discriminatory motive. (Id. at p. 358.) If the employer presents evidence of reasons "manifestly unrelated to intentional [discrimination]," the employee then bears the burden of producing evidence sufficient to support a rational inference that the decision to terminate employment was actually made on a prohibited basis. (Id. at pp. 360-361.)
In the present case, defendant presented strong, extensive, largely uncontradicted evidence plaintiff, a public prosecutor, had repeatedly conducted herself in a wholly unacceptable manner—which conduct led four members of the city attorneys office to agree that plaintiffs employment should be terminated: deputy city attorneys Zna Portlock Houston, who conducted the citys investigation, and Patricia Tubert, who conducted the Skelly hearing; Chief Deputy City Attorney Terree Bowers; and City Attorney Rocky Delgadillo. There was substantially uncontradicted evidence plaintiff had a long history of inappropriate conduct before judicial officers, for which she had been counseled, and which culminated in the incident involving then Commissioner, now Judge, Biderman. This history of unprofessional conduct, and of complaints about plaintiffs behavior, was documented in the notice of proposed termination and its attachments, and corroborated by testimony at trial, including that of judges, coworkers, and supervisors in the city attorneys office. Much of the evidence came from superior court judges before whom plaintiff had appeared and who had been interviewed during the citys investigation. These judges had no knowledge of plaintiffs initial Department of Fair Employment and Housing administrative complaint. Or even if they did, none of the judges had any motivation to retaliate against plaintiff for filing the Department of Fair Employment and Housing administrative complaint. Moreover, Mr. Delgadillo, the city attorney, cannot be expected to retain as a public prosecutor—a position of great power and even greater responsibility—an attorney who conducts herself or himself in a manner antithetical to that position.
Under Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206, a civil service employee must be afforded certain procedural rights before he or she can be discharged.
The November 6, 2002 revised notice of proposed termination stated in part: "You are hereby notified that the Los Angeles City Attorneys Office proposes to terminate you from the position of Deputy City Attorney III because of your lack of professionalism in the courtroom, disrespect to judicial officers, improper behavior in relations with fellow employees and other members of the bar, and engaging in conduct which seriously reflects on the professionalism of this Office. [¶] A review of your conduct in a courtroom on November 27, 2001, has been completed. During the course of the investigation related to your conduct on November 27, 2001, other serious issues were raised regarding your performance in court which were also reviewed." The revised notice charged plaintiff with 15 separate acts of misconduct. We summarize the extensive allegations: making inappropriate, hateful and unprofessional comments about Commissioner Biderman through his court staff; failing to appear for the hearing in the probation revocation matter, People v. Newman; misleading Commissioner Biderman and his staff as to the reason you did not appear; going to Judge Patricia Schneggs courtroom every half-hour and repeatedly making demands; being disrespectful and unnecessarily argumentative with then Judge now Associate Justice Laurie Zelon; acting in a manner beyond zealous advocacy in the Newman matter; repeatedly antagonizing fellow deputies; being abusive and condescending toward them; claiming that only you and no one else can represent the People in cases assigned to you; failing to improve after having been counseled on numerous occasions as to lack of professionalism, hostility, confrontational attitude; inappropriately and unnecessarily subpoenaing a deputy public defender; being late to court on a regular basis and not calling or not appearing at all; being caustic and disrespectful to the court on several occasions, causing several judges to complaint; inappropriately and without legal cause dismissing an African-American female as a juror; mishandling the People v. Frierson trial in numerous respects including prosecuting it as a hate crime when defendant was willing to plead to battery; demonstrating a severe lack of professional judgment and an inappropriate visceral approach to prosecuting cases; and demonstrating a lack of professionalism in the Newman case.
Mr. Bowers testified at trial that he became chief deputy to the city attorney in August 2001. Mr. Bowers was Mr. Delgadillos "number two" in the office. As such, Mr. Bowers handled all of the day-to-day issues that arose in the various branches and sections of the city attorneys office. Mr. Delgadillo wanted to "clean up" the office and to improve its reputation. According to Mr. Bowers, a prosecutors reputation is crucial; a person with a reputation for dishonesty or untrustworthiness cannot be an effective prosecutor. Toward the end of September 2001, Mr. Bowers met with plaintiff as supervising attorney in the hate crimes unit. He had met with supervisors in other units as well. Mr. Bowers had learned plaintiff was making representations on Mr. Delgadillos behalf without authorization. Further, Mr. Bowers was concerned about her interaction with other law enforcement agencies. In addition, two of her supervisors—Mr. Thomas and Ms. Siegel—had expressed concern about plaintiff. Mr. Bowers wanted to get "some understanding" of exactly what plaintiff was doing, the nature of her caseload, and the types of cases she was handling. At the conclusion of the meeting, Mr. Bowers had serious doubts about plaintiffs judgment. He testified: "I had serious doubts about her exercise of judgment, I had concerns about the use of the limited resources since she was a unit of one, and I had some concerns about her approach. [¶] It seemed to me that she was too viscerally, emotionally involved, and whenever you have a prosecutor like that, there is a danger of a win-at-all-costs type of mentality." Mr. Bowers discussed with plaintiff her exercise of judgment, strategy, and use of resources.
Mr. Bowers prepared a memorandum after the meeting to record his concerns. The September 28, 2001 memorandum states: "My initial meeting with Ms. Magnandonovan left me with a number of concerns which I feel compelled to document. [¶] 1. By the time Ms. Magnandonovan and I met, she had already attended City and County Hate Crimes Task Force meetings. In light of the events of September 11, 2001, I would have expected Ms. Magnandonovan to have had some contact with the front office before attending these meetings. She apparently made representation[s] on behalf of City Attorney Delgadillo without having ever contacted the front office for guidance. [¶] 2. Ms. Magnandonovan later called an `emergency meeting of representatives from other agencies, which was not cleared with our front office. Having called the emergency meeting, she left before it was completed. [¶] 3. During our meeting, she complained about a judge mistreating her. When I finally got her to describe the case, it raised serious doubts as to whether the case was ever a hate crime case. (A black male got mad at a white female for honking her horn. He called her a `white bitch and punched her, resulting in serious injuries.) The [district attorneys office] did not view it as a hate crime. Ms. Magnandonovan filed it as a misdemeanor hate crime, when it probably should have been filed as a felony battery. [¶] 4. Another case Ms. Magnandonovan described also involved a white female victim. This raised concerns about our case selection and I have accordingly asked for her inventory of cases. [¶] 5. During this meeting, Ms. Magnandonovan, at times, became very emotional. Her overzealousness and overly emotional approach may interfere with her responsibility to analyze theses cases in an objective manner. Further inquiry required."
Sometime after the meeting with plaintiff discussed in the foregoing September 28, 2001 memorandum, Mr. Bowers learned about the events surrounding the hearing before Commissioner Biderman. Mr. Bowers was told that: plaintiff had failed to appear in Commissioner Bidermans courtroom; there was the possibility that she had misrepresented why she was not present; and she had insinuated that Commissioner Biderman had ruled in a particular way because of his sexual orientation. Mr. Bowers was "somewhat shocked" and extremely concerned. Mr. Bowers asked Mr. Thomas to contact Commissioner Biderman and find out what had happened and to apologize. In addition, Mr. Bowers asked Deputy City Attorney Zna Portlock Houston, who was head of the Labor Relations Branch, to investigate the November 27, 2001 events.
Ms. Houston interviewed Commissioner Biderman on January 10, 2002. She prepared a witness interview statement. Commissioner Biderman said that on November 27, 2001, at 8:30 a.m., he took the bench and called People v. Newman, a case involving a convicted child molester. Plaintiff, the deputy city attorney on the case, was not present. Commissioner Biderman took steps to ensure plaintiffs presence, but was unsuccessful. Later that morning, plaintiff called Commissioner Bidermans clerk, Ms. Jones. Around 10:30 a.m., Ms. Jones told Commissioner Biderman about the telephone conversation with plaintiff. Commissioner Biderman told Ms. Houston plaintiff had made inappropriate comments to the court through Ms. Jones. Commissioner Biderman was personally offended by plaintiffs remarks, which he described as unprofessional, disrespectful, and offensive. Ms. Houston reported: "[Commissioner Biderman] felt that since he believes [plaintiff] is aware that he is a gay bench officer that she was implying that gays have a soft spot for child molesters and therefore [he] would be lenient on the defendant. Commissioner Biderman further stated that it is ironic that [plaintiff] is assigned to handle hate crimes as he believes her remarks constituted hate speech." Commissioner Biderman shared his concerns with Supervising Judge Sautner and Mr. Thomas, Senior Assistant City Attorney, Criminal Branch Operations. Commissioner Biderman related that prior to November 27, 2001, he had been inclined to recuse himself from plaintiffs cases because she appeared to accuse him of being biased. Commissioner Biderman told Ms. Houston he believed plaintiff had behaved inappropriately while appearing before other judicial officers—Judges Patricia Schnegg, Carol H. Rehm, and James R. Brandlin. Commissioner Biderman believed those incidents should be investigated.
The transcript of the November 27, 2001 hearing showed Commissioner Biderman called the Newman case, but plaintiff was not present. He put the matter on "second call" in order to await plaintiffs arrival. Commissioner Biderman called the case a second time, after 9:15 a.m. A deputy city attorney advised the court he had not heard from plaintiff but, "[W]e just passed word to her in Division 40." Ms. Jones telephoned Division 40 and advised Commissioner Biderman, "Ive been told that no one [in Division 40] has seen her today." At 9:22 a.m. Commissioner Biderman ruled as follows: "The court has made inquiry regarding Ms. [Magnandonovans] whereabouts. The court staff has not received a call back. The court, additionally, called Division 40. Division 40 did not see Ms. [Magnandonovan] in the courtroom, although, apparently she had a case on calendar there today. The court has further requested the city attorney to attempt to contact Ms. [Magnandonovan], and that has not yielded any results, no calls from her. This case was calendared at her request for todays date for probation violation hearing. There being no appearance by the prosecution, the probation violation hearing is off calendar. Probation reinstated and bail ordered exonerated."
Commissioner Bidermans court clerk, Ms. Jones, provided a February 13, 2002 declaration to Ms. Houston. Ms. Jones declared: "On November 27, 2001, Commissioner Biderman took the bench promptly at 8:30 a.m. and began calling the calendar. At the time in which he called People v. David Newman, . . . Deputy City Attorney Ms. Lynn Magnandonovan was not present. Commissioner Biderman asked me to attempt to locate [plaintiff]. I called [plaintiffs] office and was told she would be in Division 40 and thereafter would arrive to Commissioner Bidermans courtroom in Division 141. I later called [plaintiffs] office again and was told she was stuck in traffic. [¶] At approximately 10:30 a.m. I received a telephone call from [plaintiff] regarding the Newman case. [Plaintiff] was very upset at the fact that the Court in her absence took the probation violation hearing off calendar. She asked me exactly what time Commissioner Biderman took the bench and I told her at 8:30 a.m. [Plaintiff] told me she had been in Division 40, and I told her that I called Division 40 and she was not there. [Plaintiff] then stated maybe she was stuck in traffic. She asked what time did the Court hear her case and I told her that I was not sure. She said that this was unconstitutional and that she had been in court many times and had to wait on defense counsel for hours and hours at a time. I responded, not in this court. She said that she was being prejudiced against and stated `you and I both know why and that Commissioner Biderman would have to answer to God for his actions. She also asked me how would I feel if I had a son and someone like Mr. Newman preyed on my son. She then stated `you would want the City Attorneys Office to do everything we could to keep him away from you son. [Plaintiff] said she was going to speak to her supervisor about the matter because the situation was unconscionable and that Commissioner Biderman would have to answer to his maker. [Plaintiffs] tone was argumentative and somewhat abrasive in my opinion. After stating to her that I was not going to argue with her regarding this matter and that I could not say why Commissioner Biderman ruled the way he did because I didnt know and that she should calm down, she then apologized to me for being upset and said that she realizes that it wasnt my fault and that she was sure that I had relayed all messages to Commissioner Biderman regarding her being late."
Ms. Houston interviewed Judge Schnegg on April 10, 2002. Judge Schnegg had been assigned to Division 40 in the Clara Shortridge Foltz Criminal Justice Center in 2001, where plaintiff frequently appeared. Judge Schnegg described plaintiffs "approach" as "often caustic and disrespectful" to the court. Prior to July 2001, Judge Schnegg had reported "her concerns about [plaintiffs] lack of judgment" to the city attorneys office. Judge Schnegg stated plaintiff was late to court on several occasions and did not telephone. Judge Schnegg described a particular case as an example of plaintiffs "failure to use adequate judgment": "The case of The People v. Timothy Frierson . . . involved an African-American male defendant who was charged with a hate crime for attempting to hit two Caucasian women in a parking lot. The defendant had admitted to a battery but insisted that it was not a hate crime. The case had been continued numerous times. The case passed through several public defenders and was finally at 10 of 10. The defense filed a 170.6 and it was unlikely that a court would become available. While waiting for an available courtroom, [plaintiff] came to Judge Schneggs courtroom every half-hour demanding a courtroom. At one point, Judge Schnegg stated that [plaintiff] demanded that Judge Schnegg call Judge Bascue, the Supervising Judge in order to get an open courtroom. Judge Schnegg further stated that [plaintiff] claimed to have information from the highest authority in the City Attorneys Office that the Presiding Judge must be called. Moreover, [plaintiff] claimed that judicial authority dictated that Judge Schnegg was obligated to call the Presiding Judge. Judge Schnegg queried [plaintiff] to determine if she was really implying that the City Attorney, Rocky Delgadillo[,] had actually required that [plaintiff] make such a demand."
On May 17, 2002, Ms. Houston interviewed then Superior Court Judge (now Court of Appeal Associate Justice) Zelon. Judge Zelon stated plaintiff had appeared in her courtroom in 2001 on a discovery motion. Judge Zelon said, "[Plaintiff] was very difficult and disrespectful to the court in that she insinuated that Judge Zelon either did not know or lacked understanding of the law." Plaintiff told Judge Zelon, "[S]he represented six million citizens of Los Angeles, and that Judge Zelon should explain to the people why it should take so long to decide the [discovery] matter." Judge Zelon said plaintiff took extreme positions regarding discovery, which were contrary to the citys attorneys "manner of handling discovery" disputes. Judge Zelon believed plaintiff was not being properly supervised. Judge Zelon stated, "[S]he would be concerned if the City Attorneys Office permitted [plaintiff] to make court appearances and to handle matters without close supervision to preserve the integrity of the proceedings."
In connection with the hearing before then Judge Zelon, plaintiff had subpoenaed a deputy public defender. On July 31, 2001, Deputy Public Defender Jerry A. Weil formally protested this treatment. Plaintiff was subsequently counseled by her superiors as to the inappropriateness of her actions, which violated office policy.
Ms. Houston interviewed Judge Brandlin on May 17, 2002. Commissioner Biderman had asked Judge Brandlin to transfer the Newman matter to another judge. Commissioner Biderman said he was uncomfortable presiding over the matter because plaintiff had implied he acted with an improper bias in the probation revocation hearing. Judge Brandlin handled the Newman matter himself. Judge Brandlin told Ms. Houston that in his opinion plaintiff acted in a manner beyond that expected of a zealous advocate. Ms. Houston reported: "[Judge Brandlin] felt [plaintiff] was personally embroiled in the matter and therefore lost objectivity. According to Judge Brandlin, [plaintiff], made strident claims, utilized an unprofessional tone of voice, and frequently cut off opposing counsel. She appeared to be obsessed with the case. In general, it is Judge Brandlins opinion that [plaintiffs] overall conduct was very unprofessional." Judge Brandlin felt strongly that plaintiff "lack[ed] civility" and was unprofessional.
Judge Brandlins witness interview statement further related as follows: "Judge Brandlin stated that he was concerned that [plaintiff] used improper motives by having the victims mother and, the investigator on the case present in Court for the Motion. He was left with the impression that she was attempting to stack the audience section of the court room. It was his distinct impression that [plaintiff] was trying to unduly influence a judicial officer. Moreover, [plaintiff] attempted to introduce on the record all the witnesses in the audience associated with the case. Judge Brandlin stated that he suspected that [plaintiff] encouraged the witnesses to be present, even though a hearing involving witnesses had not been scheduled. Interestingly, the investigator on the case was Kevin Berman who was Judge Brandlins wifes employer ten years ago. In addition, Kevin Bermans brother, Peter Berman was Judge Brandlins former supervisor ten years ago. While, Judge Brandlin states that he cannot prove that [plaintiff] was aware of these connections, he nevertheless felt that [plaintiff] was very subtly attempting to curry favor. The cumulative nature of [plaintiffs] actions relative to the witnesses left Judge Brandlin feeling that [plaintiffs] actions were intentionally taken to make an impact on him. [¶] . . . Judge Brandlin stated that although he would not recuse himself were [plaintiff] to make future appearances in front of him, he certainly would not allow her the same leniency. . . . . [¶] . . . He did not consider sanctioning [plaintiff] for her actions in his court room, however, he believes that sanctions may have been appropriate in that [plaintiff] claimed new facts in her moving papers dated October 16, 2001 filed after Judge Brandlin denied her motion heard on September 24, 2001. It is his impression that the pleadings stretched credibility and there was an appearance of vindictive prosecution. In addition, he felt her motivation was questionable in requiring bail to be posted by the defendant. Her declaration in support of the denial of bail was unclear as to time, or as to what terms of the probation had been violated. Judge Brandlin was particularly troubled by [plaintiffs] failure to produce discovery and to appear on her own motion as he believes that the City Attorney has a duty to ensure that the governmental power to prosecute violations of probation and deprive persons of their liberty is not abused by officers of the Court."
Mosk, J., Dissenting
I dissent.
I would affirm. I agree that the City has forfeited or is otherwise precluded from pursuing on appeal its arguments concerning exhaustion of remedies and compliance with the claims presentation requirement by not litigating those issues in the trial court prior to judgment. I also agree that if there is sufficient evidence to support the retaliation in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12900, et seq.) claim, the jurys verdict must stand. It is arguable that there was a forfeiture of the defense of immunity set forth in Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876, 898-899, because, other than a boilerplate allegation in the answer, the defense was only raised in a footnote in a new trial motion. Even if the defense was adequately raised so as, under Miklosy, to bar plaintiffs two common law wrongful termination causes of action, the judgment must nevertheless be affirmed because there is substantial evidence in the record to support her statutory claim of retaliation under FEHA. (See Clement v. State Reclamation Board (1950) 35 Cal.2d 628, 643.) I believe there is such sufficient evidence.
A. Standard of Review
The Citys challenge to the sufficiency of the evidence in support of the verdict is reviewed under a substantial evidence standard. (McRae v. Dept. of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389 ["a jurys verdict stands only if it is supported by substantial evidence"].) "Substantial evidence is evidence that a rational trier of fact could find to be reasonable, credible, and of solid value. We view the evidence in the light most favorable to the verdict and accept as true all evidence tending to support the verdict, including all facts that reasonably can be deduced from the evidence. We must affirm the award of damages based on the verdict if an examination of the entire record viewed in this light discloses substantial evidence to support the verdict. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 ; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633 .)" (Fassberg Construction Co. v. Housing Authority of the City of Los Angeles (2007) 152 Cal.App.4th 720, 746.)
B. Evidence of Pretext and Retaliation
Plaintiffs second cause of action under FEHA is premised on retaliation for engaging in a protected activity—i.e., complaining about the Citys failure to comply with the settlement agreement that settled, inter alia, her sex discrimination claim. (Cal. Gov. Code, § 12940, subd. (h.); Cal. Code Regs., tit. 2, § 7287.8, subd. (a); see Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1050-1051.) The City does not raise any issue of whether plaintiffs claim is proper under FEHA or whether her complaint qualifies as protected activity. The City only contends that there was little, if any, competent evidence that the Citys stated reasons for terminating plaintiff were pretextual or that the decision to terminate plaintiff was in any way related to her prior complaints about discrimination and retaliation. Focusing on the testimony of its decision-makers, such as Patricia Tubert, Terree Bowers, and City Attorney Rockard Delgadillo, the City argues there is nothing in the record to suggest that those decision-makers were motivated, in whole or in part, by plaintiffs complaints of discrimination and retaliation, or her settlement agreement with the City. As the City views the evidence, the decision-makers were motivated solely by plaintiffs acts of misconduct as specified in the proposed notices of termination.
Viewed in a light most favorable to the judgment, as it must be, the evidence was sufficient to support a rational inference that the Citys stated reasons for plaintiffs discharge were pretextual and that she was discharged in retaliation for one or more of her prior complaints of discrimination and retaliation.
An employers unlawful motive is most often established through circumstantial evidence. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 ["direct evidence of intentional discrimination is rare, and . . . such claims must usually be proven circumstantially"].) The record shows that plaintiff had not been disciplined, nor had she received any formal notices to correct deficient performance prior to being placed on administrative leave following the incident with Commissioner Bidermans clerk. That evidence, when coupled with plaintiffs evidence that the Citys conduct (treatment of plaintiff while she was in the Hate Crimes Unit) in purported violation of the settlement agreement (resolving a prior FEHA complaint) began almost immediately after plaintiff executed that settlement agreement, constitutes circumstantial evidence of both pretext and retaliatory motive. (See, e.g., Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140 [evidence supporting finding of pretext included that plaintiff had never been reprimanded or received a negative performance review]; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 [retaliatory motive is proved by showing plaintiff engaged in a protected activity, his employer was aware of that activity, and the adverse action followed within a relatively short time thereafter].)
There was also testimony that plaintiff was a dedicated, hard-working prosecutor from a number of witnesses. That evidence augmented plaintiffs testimony concerning her satisfactory job performance and served to call into question the Citys job actions against plaintiff following the incident with Commissioner Bidermans clerk. Moreover, the evidence showing that plaintiff, unlike other employees, was not progressively disciplined for the incident with Commissioner Bidermans clerk added further support to the inference that the Citys stated reasons for pursuing plaintiffs immediate termination were pretextual.
In addition, plaintiffs expert testified that Ina Houstons (of the City Attorneys office) investigation was not neutral and was deficient in several material respects, including Houstons failure to interview plaintiff to obtain her side of the story. That evidence supports a reasonable inference that the investigation was not initiated as a result of the incident with Commissioner Bidermans clerk, but rather by a desire to contrive reasons for discharging plaintiff. Similarly, plaintiffs union representative testified that the original proposed notice of termination was insufficient, as was the documentary information that was provided to plaintiff in the "Skelly package." That evidence allowed the jury reasonably to infer that the Skelly process was unfair, biased, and designed as a procedure by which the City could justify plaintiffs termination.
Notwithstanding the foregoing circumstantial evidence of pretext and retaliatory motive, the City emphasizes the other evidence showing specific instances of misconduct by plaintiff, including the testimony of the present and former superior court judges. Such evidence suggested that plaintiff engaged in inappropriate conduct in the courtroom. According to the City, that evidence demonstrates that the Citys job actions against plaintiff were triggered by the incident with Commissioner Bidermans clerk and the other documented incidents of misconduct, and were wholly unrelated to plaintiffs prior complaints or the settlement agreement. But plaintiff countered much of that evidence with plausible explanations. An example is her testimony that she did not intend her comment to Commissioner Bidermans clerk as a reference to his homosexuality and that she was not even aware that the Commissioner was homosexual.
Although reasonable minds could have differed concerning the nature and extent of plaintiffs alleged misconduct, there was sufficient evidence in the record to allow the jury to infer that the misconduct was not as severe or outrageous as the City portrayed it. For example, the transcript of the Wheeler hearing in the hate crime matter was sufficient to support an inference that plaintiff reasonably believed the juror in question had been "nodding off," notwithstanding Judge Yvette Palazueloss conclusion to the contrary. Thus, the jury could reasonably have inferred that the Citys reliance on that incident as a justification for its job action against plaintiff was pretextual. In light of the standard governing our substantial evidence review, this court cannot reweigh the evidence. This being so, there appears to be substantial evidence in the record to support the jurys finding that at least one of plaintiffs prior complaints of discrimination or retaliation was a motivating factor in her discharge.
The conduct of plaintiffs supervisors can be imputed to the ultimate decision-makers. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 113.) Therefore, even assuming that Tubert and Bowers had no retaliatory motive in discharging plaintiff, the evidence of their reliance on the information and investigations conducted by plaintiffs supervisors was sufficient to impute the retaliatory motives of those supervisors to the Citys decision-makers.
For this reason, I conclude that the jury in this case did not render an irrational verdict. Determining that there is sufficient evidence to support the jury verdict does not suggest that I believe or disbelieve any witness or party or that I condone any of the conduct attributed to any party.
C. Conclusion
I would affirm the judgment. There is no need for me to discuss the attorney fees issue, although my inclination would be to conclude that the trial court did not abuse its discretion in that regard.
The transcript of the September 24, 2001 hearing before Judge Brandlin was attachment No. 10 to the revised notice of proposed termination. Plaintiff argued a stipulation entered into by another deputy city attorney should be set aside. Plaintiff reasoned she was the prosecutor on the case and she was the only person who could represent the city in the matter. Plaintiff asserted the city attorneys office was not properly represented and had no meaningful opportunity to be heard because she, personally, was not present at the earlier hearing. At the earlier hearing, another deputy city attorney, who was unfamiliar with the case, had handled the matter. Plaintiff argued in part: "[Deputy City Attorney] Milne, since he does not understand how this case affected the minor children, since Mr. Milne does not understand how the parents feel, because Mr. Milne was not available during the sentencing proceeding to hear the parents come forward and talk about how distressed they were, if Mr. Milne had had the benefit of that, as I have, maybe Mr. Milne would not have acted the way he did. So the real issue, I think, . . . is what kind of hearing are we talking about? What is an opportunity to be heard? That is a due process concern. And Im sure that this court is very mindful of the due process rights of the defendant. The [P]eople happen to be very aware and support the due process of the defendant. [¶] But the due process of the defendant is never to minimize the due process of the [P]eople. I stand in front of you representing four million people. And those four million people expect their due process. And I do not think that thats what happened in this case. . . . [¶] . . . I am the prosecuting attorney. Mr. Milne was not the prosecuting attorney. He was not. I was. That was me. Youre looking at me. I am the prosecuting attorney."
Ms. Houston also interviewed Superior Court Judge Yvette Palazuelos. The interview took place on May 20, 2002. Judge Palazuelos had granted a mistrial on her own motion after plaintiff exercised a peremptory challenge to the sole African-American juror in the entire panel. Judge Palazuelos described plaintiffs general demeanor and certain remarks as "inappropriate." Judge Palazuelos described plaintiffs advocacy as sometimes being "overzealous." Judge Palazuelos staff did not want to assist plaintiff. This was because plaintiff was "irritating" and uncooperative. Judge Palazueloss clerk, Delia Rodriguez, told Ms. Houston that plaintiff "had a tendency to continue arguing" after the court had ruled and "was disrespectful" during proceedings. Judge Palazueloss court reporter, Veronika Green, told Ms. Houston that plaintiff was "very condescending" toward jurors, "very argumentative," would "snicker" at Judge Palazueloss rulings, and "exhibited a very controlled disrespect" of the court.
Ms. Houston presented the results of her investigation to Mr. Bowers. Based on his review of those materials and the totality of the information he had received, including the caseload review he had conducted with plaintiff, Mr. Bowers concluded she should be placed on administrative leave pending further investigation. He testified at trial, "I had serious doubts about whether she could be continued as an attorney in the office." Mr. Bowers subsequently recommended to Mr. Delgadillo that plaintiffs employment be terminated. Mr. Delgadillo approved that recommendation. Mr. Bowers testified at trial: "The reason I made the decision that she needed to be discharged or terminated had several aspects. I thought that there were some fundamental issues with [plaintiff] that could not be corrected with training, that she was not a new, inexperienced attorney. She had been in the office for a while; in fact, she was in a supervisory position. [¶] I personally felt that based on the information I had received from the judges and experienced myself, I thought that she was untrustworthy, I did not think she was honest, and I thought she was damaging the credibility of the office by her continued practice in superior court. I thought that so long as she continued to appear in the courts . . . as a member of the city attorneys office, it undermined our credibility as an office and . . . damaged our reputation significantly. [¶] I also learned that because of the way she treated her colleagues and occasional temper tantrums and outbursts of profanity, that essentially she poisoned the work environment and made it more difficult for other deputies to perform their responsibilities in what is always a very stressful situation when youre getting ready for trials, and you dont need to put up with that sort of abhorrent behavior. [¶] And then, again, her judgment in my mind was suspect in the way she was handling hate crime cases. When at times they could be better prosecuted as, lets say, an assault and battery by the [district attorneys] office, she would insist on bringing it in as a hate crime; and . . . based on my experience with these types of crimes where you had subjective intent, I just thought that was not appropriate and it was . . . very poor judgment on her part. [¶] So it was . . . a comprehensive evaluation of many, many problems, none of which could be resolved by just a transfer or training. I thought they were fundamental issues that just could not be resolved."
Mr. Bowers appointed Patricia Tubert, head of the Municipal Counsel Branch, to conduct a Skelly hearing. Ms. Tubert held a Skelly hearing on January 28, 2003. Plaintiff did not appear, but was represented by two union representatives and a private attorney. Plaintiffs representatives did not present any information to dispute or contradict the charges in the revised notice of proposed termination. Ms. Tubert subsequently recommended that plaintiff be discharged. Ms. Tubert found: "[T]he Skelly package materials provided to me in June and August of 2002, include sufficient information to support the termination of Lynn Magnandonovan for disrespect to judicial officers, demonstrated by (1) her inappropriate, hostile and contemptuous comments and arguments to the court and court personnel, failure to appeal in a timely manner, lying to the court about her whereabouts and submitting an intentionally misleading pleading and (2) lack of professionalism and professional judgment as demonstrated by her inappropriate, hostile and contemptuous comments and arguments to the court and court personnel, failure to appear in court in a timely manner, lying to the court about her whereabout[s] and submitting an intentionally misleading pleading, as well as, inappropriate demand that a bench officer be required to testify at a hearing, incorrect statements that only she can represent the People of the State of California in matters in which she has handled any portion of the prosecution, inadequate preparation for the Frierson case, including lack of judgment in filing the case, not accepting a plea and trying the case, inappropriate attempt to keep relevant discovery from defense counsel, inappropriate arguments with defense counsel in the Newman and Frierson cases, inappropriate handling of an unnecessary subpoena of a public defender, demeaning the legal performance of another Deputy City Attorney in arguments to the court, unresponsiveness to counseling by supervisors and inability to work with other members of the office; all of which seriously reflect badly on the professionalism of this office." (Italics substituted for underscoring.) Mr. Bowers and Mr. Delgadillo accepted Ms. Tuberts recommendation.
At trial, Judge Biderman testified he had been shocked by plaintiffs comments in the wake of the probation violation hearing. He understood her comments to refer to the nature of the charges—molestation of a child—and to be a veiled reference to his sexual orientation and personally insulting. Judge Brandlin testified that during the hearing before him, plaintiff had acted beyond zealous advocacy, and had been abrasive and unprofessional in her demeanor and tone of voice, including interrupting opposing counsel. In addition, Judge Brandlin concluded a reasonable person in plaintiffs position would have not believed in the merits of the legal position she took.
By the time of trial, Judge Zelon had been appointed to the Court of Appeal. Associate Justice Zelon described plaintiffs conduct during superior court proceedings. Associate Justice Zelon testified plaintiff: was at times disrespectful; crossed the line beyond zealous advocacy; and spoke in a "sharp" and "sarcastic" tone. Justice Zelon found plaintiffs tone and body language to be inconsistent with that expected of a lawyer in a courtroom. As noted above, plaintiff had appeared before then Judge Zelon. Justice Zelon described one incident: "As best I can recall it now, she referred to the fact that she represented the six million citizens of the City of Los Angeles and that I should explain to them why I was delaying the trial in this case." Justice Zelon testified, "I believe that remarks of that nature in open court on the record show a profound disrespect for the role of the court in a criminal prosecution and the rights of the parties."
Judge Palazuelos testified concerning the case in which she discharged a jury based on the discriminatory use of a peremptory challenge on her own motion. Judge Palazuelos described plaintiffs demeanor and remarks as inappropriate. Judge Palazuelos testified, "[Plaintiff] was rude at times, discourteous, argumentative after I had made a ruling, facial gestures, eye rolling, huffing and puffing kind of, speaking loudly to me almost to the point of yelling at me at sidebar." When asked to describe plaintiffs tone of voice, Judge Palazuelos testified, "Aggressively, sarcasm. Communicating—she says, `Ive always shown you the proper respect that the robe deserves, but the way she was saying it communicated the exact opposite of what she meant."
A supervisor with the city attorneys office, Alan Dahle, testified he once walked into a courtroom and found plaintiff screaming at a cowering woman. Further, contempt proceedings had been brought and sanctions imposed when plaintiff disobeyed an order to return evidence to a defendant. Police officers were reluctant to deal with plaintiff because she was abrasive. Court reporters complained about plaintiffs language in the courtroom. Mr. Dahle had seen plaintiff be rude and disrespectful to judicial officers. Mr. Dahle testified, "[Plaintiff would] roll her eyes, turn her back, talk to someone else when the judge was talking to her . . . ." Mr. Dahle attempted to counsel plaintiff about these problems, but her behavior did not change. There were judicial officers who did not want plaintiff in their courtrooms.
Another supervisor in the city attorneys office, Lara Bloomquist, testified plaintiff had a confrontational, disrespectful, and unprofessional attitude toward judicial officers. Plaintiff would roll her eyes, throw her head back, and otherwise make it obvious she found what the court was saying to be stupid. A city attorneys office legal assistant and interpreter, Patricia de Luna, once saw plaintiff "cuss[] out" a teenage witness. Ms. de Luna testified plaintiff was very upset and really agitated. In fact, plaintiff was stomping her feet. According to Ms. de Luna, plaintiff said to the witness: "`How can you fucking forget what we just talked about? We were right in the middle of the fucking trial and youre fucking everything up." Deputy City Attorney Bernie Brown had supervised plaintiff from 1993 to 1996. He testified plaintiff was the most difficult attorney he had ever supervised. He had received complaints about plaintiff from judges and court staff. There were several courtrooms where plaintiff could not be assigned. Plaintiff was antagonistic, rude, used profanity, and had an unprofessional attitude. Mr. Brown considered taking formal disciplinary action against plaintiff, but instead she was transferred into the special operations division.
Charles Goldenberg testified he was asked to take plaintiff into his unit because she was having problems elsewhere. Plaintiffs supervisor at the time of her termination was Mr. Thomas. Mr. Thomas testified he had received complaints about plaintiff from Superior Court Judges Patti Jo McKay and Veronica Simmons McBeth. Judge McKay told Mr. Thomas other jurists also did not want plaintiff in their courtrooms.
We conclude plaintiffs evidence her superiors undermined her position as supervisor over the Hate Crimes Unit was insufficient as a matter of law to support a finding defendants proffered reasons for discharging her were a pretext for retaliation. Defendant offered plausible, largely uncontradicted evidence plaintiff had behaved in a wholly unacceptable manner before superior court judges in her capacity as a deputy city attorney. Standing alone, the uncontradicted evidence of the bullying and hostile language directed at Commissioner Biderman, through his deputy clerk, Ms. Jones, was a legitimate nondiscriminatory reason to discharge plaintiff, a public prosecutor. Plaintiffs evidence raised, at best, a weak suspicion she was the subject of retaliation because she filed a Department of Fair Employment and Housing administrative complaint. Defendant is therefore entitled to a judgment in its favor.
IV. DISPOSITION
The judgment, including the attorney fee award, is reversed. Judgment is to be entered in defendants favor. Defendant, the City of Los Angeles, is to recover its costs on appeal from plaintiff, Lynn Magnandonovan. Plaintiffs appeal from the attorney fee award is dismissed as moot.
I concur:
KRIEGLER, J.