Opinion
C094249
07-31-2023
THOMAS BITZ, Plaintiff and Appellant, v. STOCKTON UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. STKCVUOE20171701
RENNER, J.
Thomas Bitz (Bitz) brought suit against his former employer, Stockton Unified School District (the District). He alleged the District retaliated against him for whistleblowing in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)) and Labor Code section 1102.5. [ The trial court granted the District's motion for summary judgment on the ground that Bitz's claims were both time-barred and legally insufficient. Bitz appeals, arguing there are triable issues of fact as to the date of his separation from employment. We disagree and conclude Bitz's claims are time-barred. In light of our conclusion, we need not and do not consider whether summary judgment was properly granted on the merits.
Undesignated statutory references are to the Government Code.
I. BACKGROUND
Bitz served as a police officer and sergeant with the Stockton Police Department (Department) from 1992 until his retirement in 2011. Following his retirement, Bitz began working for the District as a classified substitute police officer. He was promoted to sergeant in 2012. His employment with the District came to an end some years later. The exact end date of Bitz's employment is a matter of debate.
A. First Amended Complaint
Bitz commenced the instant action on February 21, 2017. The operative first amended complaint alleges Bitz was laid off on February 14, 2016, in retaliation for three instances of protected whistleblowing activity. We need not describe the first or second of these instances in any detail, as only the last will be relevant to our statute of limitations analysis. It suffices to say that the District hired a series of interim police chiefs during the relevant period, and the first amended complaint alleges Bitz engaged in protected whistleblowing activity by challenging the hiring process for some or all as having been tainted by racial discrimination and political favoritism.
As we shall discuss, Bitz now says he was laid off on February 17, 2016.
With respect to the last and most salient instance of whistleblowing activity, the first amended complaint alleges Bitz was a "[r]ange [m]aster," responsible for "qualifying" persons to carry firearms. (See generally Pen. Code, § 830.5, subd. (d).) According to the first amended complaint, one of the District's interim police chiefs, Bryon Gustafson, appeared before Bitz for a" 'carry exam'" and failed to perform as expected. The first amended complaint alleges Bitz was laid off, in part, for refusing to "qualify" Gustafson.
The first amended complaint mentions another issue, which will become relevant later. Specifically, the first amended complaint indicates Bitz's separation from employment was classified as a "discharge" or "termination," rather than a "lay off," in a "Peace Officer Standard Training Board (POST) filing." (See Pen. Code, § 13500, et seq.) The first amended complaint indicates the classification compromised Bitz's ability to secure alternative employment in law enforcement.
The first amended complaint says Bitz challenged the alleged retaliation in several ways. First, the first amended complaint alleges Bitz complained in writing to the District, prompting an internal affairs investigation. Second, the first amended complaint alleges Bitz filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) and received a right to sue letter on October 5, 2016. Third, the first amended complaint alleges Bitz filed a claim under the Government Claims Act on August 12, 2016, which was rejected as untimely.
The first amended complaint asserts causes of action for retaliation (first cause of action) and wrongful termination in violation of public policy (second cause of action). Though styled as a single cause of action, the first cause of action encompasses two theories of liability: (1) retaliation under FEHA, and (2) whistleblower retaliation in violation of Labor Code section 1102.5. Only the compound first cause of action remains at issue.
Bitz dismissed the second cause of action for wrongful termination in violation of public policy.
B. The District's Motion for Summary Judgment and Supporting Evidence
The record does not contain any of the evidence submitted by the District in support of the motion for summary judgment. Consequently, our discussion of the District's initial showing on summary judgment is based on the trial court's ruling (described in greater detail post) and the District's separate statement of undisputed facts. Although we do not have a complete record of the motion for summary judgment, the record is adequate to review the legal issues presented in this appeal.
The District moved for summary judgment or summary adjudication in October 2020. The District argued Bitz failed to timely exhaust his administrative remedies, and could not establish a prima facie case of retaliation under FEHA or Labor Code section 1102.5.
The District supported the motion with evidence that Bitz was terminated on September 2, 2014, well before the date alleged in the first amended complaint. That evidence appears to have included a letter from Police Chief Gustafson dated September 2, 2014, which states, in part: "This letter is a follow up to our telephone conversation around Noon today and provides official notice that your services as an at-will, classified substitute employee with the Stockton Unified School District are no longer needed effective today." The District also relied on verified responses to form interrogatories, in which Bitz averred: "I was terminated without the required 45 day notice . . . by Chief Brian [sic] Gustafson on September 2nd, 2014."
With respect to its exhaustion argument, the District presented evidence that Bitz filed an administrative complaint with DFEH and received a right to sue letter on October 5, 2016. The District also presented evidence that Bitz filed a Government Claims Act claim on August 12, 2016, which was rejected as untimely, and made no attempt to seek relief from the trial court pursuant to section 946.6.
C. Bitz's Opposition
Bitz opposed the motion. He argued the first cause of action for retaliation was based on an alleged denial of "reinstatement/continued employment," which was said to have occurred on February 17, 2016. He also argued the evidence established a continuous pattern of retaliation, with the last retaliatory act occurring on February 17, 2016. Working backwards from that date, Bitz argued the administrative complaint with DFEH was timely filed on October 5, 2016, and the District had sufficient notice of his claims for purposes of the Government Claims Act.
The opposition was supported by a declaration from Bitz. The declaration describes the incident involving Chief Gustafson, which assertedly occurred in 2014. The declaration goes on to say that Bitz was laid off by Gustafson, "soon thereafter." The declaration acknowledges that Bitz received Gustafson's letter dated September 2, 2014.
The declaration then describes events occurring after the lay-off. First, the declaration avers that Bitz complained to the District's interim superintendent, Julie Penn, in a letter dated March 7, 2015. The declaration attaches a copy of the letter, which alleges that Bitz was laid off in retaliation for the incident involving Chief Gustafson, and challenges the characterization of the lay-off as "discharged" in a report submitted to the POST Commission. The letter demands that the District change Bitz's classification and conduct an internal affairs investigation. The letter does not request or even mention reinstatement.
Next, the declaration avers that Bitz received a letter from the District on or about April 23, 2015. That letter, entitled "CLASSIFIED SUBSTITUTE EMPLOYEES REASONABLE ASSURANCE 2015-2016," states, in part: "You are hereby notified that you have reasonable assurance of returning to work in the 2015-16 school year, after the summer recess period." The declaration avers that Bitz understood from the letter that he would eventually be reinstated as he "had received similar documents from the District each year prior to commencing work the following school year."
Finally, the declaration says Bitz received a letter from interim superintendent Penn on February 17, 2016. Penn's letter reports that an internal affairs investigation had been conducted and no evidence had been found to substantiate Bitz's allegations. The letter concludes: "This matter is now considered to be closed." According to the declaration, Penn's letter caused him to understand for the first time that he had been terminated and would not be reinstated. He also understood that his change in status would not be reclassified for the POST Commission.
D. Trial Court's Ruling
A hearing was held on the motion for summary judgment on April 9, 2021. The trial court granted the motion by means of a detailed minute order issued that same day. The trial court found the District carried its initial burden to show Bitz was terminated on September 2, 2014, more than one year before filing the administrative complaint with DFEH. The burden thus shifted to Bitz to raise a triable issue of material fact. The trial court found the "reasonable assurance" letter of April 23, 2015, failed to raise a triable issue as to the termination date, and Bitz failed to show the doctrine of equitable tolling applied. Accordingly, the trial court found the first cause of action was untimely to the extent based on FEHA.
The trial court then considered whether the first cause of action was timely to the extent based on Labor Code section 1102.5. The trial court found the District presented evidence showing: (1) Bitz presented the District with a claim on August 12, 2016, which was rejected as untimely; (2) Bitz sought leave to file a late claim on September 15, 2016, which was rejected the next day; (3) Bitz was informed that his recourse was to file a petition for relief with the trial court (§ 946.6); and (4) no such petition was filed.
The trial court found Bitz failed to counter the District's showing. The trial court rejected Bitz's argument that his March 7, 2015 letter to interim superintendent Penn satisfied the Government Claims Act, noting that Bitz "failed to present competent evidence that the March 7, 2015 letter was a government claim." The trial court also rejected Bitz's argument that the March 7, 2015 letter established a basis for equitable tolling. Accordingly, the trial court found Bitz failed to exhaust administrative remedies and the District was entitled to summary adjudication of the first cause of action to the extent based on Labor Code section 1102.5.
The trial court entered judgment in favor of the District on May 18, 2021. This appeal timely followed.
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate when all the papers submitted show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c) &(f); Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 853; Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1179-1180.) This may be done by affirmatively proving that a specified fact does not exist or by showing that the plaintiff has no evidence to prove that fact. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756.)
Once the moving defendant has met its initial burden, the burden shifts to the nonmoving plaintiff to show that a triable issue of material fact exists. (Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists if, and only if, the evidence reasonably permits the trier of fact to find the contested fact in favor of the plaintiff in accordance with the applicable standard of proof. (Ibid.)
We review an order granting summary judgment de novo, applying the same three-step analysis as the trial court. (Aguilar, supra, 25 Cal.4th at p. 860; Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503.) First, we identify the issues framed by the pleadings, as those are the allegations to which the motion must respond. (Hamburg, supra, at p. 503.) We next determine whether the defendant's showing establishes facts which negate the plaintiff's claims and justify a judgment in the defendant's favor. (Ibid.) If the defendant has made such a showing, we then determine whether the plaintiff has demonstrated the existence of a triable, material issue of fact. (Ibid.)
We view the evidence in a light favorable to the party opposing summary judgment, liberally construing that party's evidence while strictly scrutinizing the moving party's showing and resolving all doubts concerning the evidence in favor of the opposing party. (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499-500.) We consider all of the evidence offered in connection with the motion except that which the trial court properly excluded. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717; Gin v. Pennsylvania Life Ins. Co. (2005) 134 Cal.App.4th 939, 946.)
Although our review is de novo," 'the appellant has the burden of showing error, even if he did not bear the burden in the trial court. [Citation.] . . . "[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed." '" (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.)
B. FEHA Retaliation
FEHA imposes liability on employers who retaliate "against any person because the person has opposed any practices forbidden under [the FEHA]." (§ 12940, subd. (h).) To prove retaliation under FEHA, the plaintiff must establish "(1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) An adverse employment action is one that "materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity." (Id. at p. 1051.)
An employee must exhaust his or her administrative remedies by filing a verified complaint with DFEH and obtaining a right-to-sue letter before filing a judicial action under the FEHA. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153.) At the relevant time, an employee bringing an action under FEHA was ordinarily required to file his or her administrative complaint within "one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred." (§ 12960, former subd. (d); see Acuna v. San Diego Gas &Electric Co. (2013) 217 Cal.App.4th 1402, 1412; § 12960, subd. (e), Stats. 2019, ch. 709, § 1, eff. Jan. 1, 2020 [employees now have three years to file administrative complaints]; Chin, Wiseman, Callahan &Lowe, Cal. Prac. Guide: Employment Litigation (The Rutter Group 2020) ¶ 16:260.) It is undisputed that the one-year period provided by section 12960, former subdivision (d) applies here.
The first amended complaint alleges the District violated FEHA by laying him off in retaliation for protected activity. Our Supreme Court has held that the one-year period for filing an administrative complaint for retaliatory termination with DFEH accrues at the time the employee is actually terminated. (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479, 493 (Romano).) "The Romano court explained that because the FEHA defines an improper' "discharge" as among the statute's unlawful employment practices,' and because the FEHA provides that DFEH complaints must be filed within one year from the date the 'unlawful practice "occurred,"' the limitations period for a claim alleging a termination in violation of FEHA begins to run at the time of the termination, even if the employee knew or should have known before that time that the employer was intending to terminate the employment for the alleged improper reasons." (Acuna v. San Diego Gas &Electric Co, supra, 217 Cal.App.4th at p. 1418.)
In moving for summary judgment, the District presented evidence that: (1) Bitz received "official notice" that his "services as an at-will, classified substitute employee" were "no longer needed effective today," by letter dated September 2, 2014; (2) Bitz admitted the September 2, 2014 termination date in verified discovery responses; and (3) Bitz filed an administrative complaint with DFEH on October 5, 2016, more than two years later. With this showing, the District established that Bitz failed to file his administrative complaint within one year of the allegedly retaliatory termination, and thereby carried its initial burden on summary judgment to establish a complete defense. (§ 12960, former subd. (d); Martin v. Lockheed Missiles &Space Co. (1994) 29 Cal.App.4th 1718, 1724 [in the context of FEHA, the "failure to exhaust administrative remedies is a ground for a defense summary judgment"].) The burden thus shifted to Bitz to raise a triable issue.
In opposing summary judgment, Bitz argued the one-year period for filing an administrative complaint with DFEH accrued on February 17, 2016, when interim superintendent Penn wrote that the District had completed its internal affairs investigation and the matter was "now considered to be closed." But Bitz offered no evidence to suggest he continued working for the District after September 2, 2014. Nor did he present evidence indicating he was placed on leave. Instead, he relied on evidence he believed he might one day be reinstated. Specifically, he relied on the District's April 23, 2015 letter giving "reasonable assurance" he would be reemployed in the coming school year. This evidence falls well short of creating a triable issue of fact as to Bitz's termination date.
Bitz suggests there was something about his status as a retired annuitant that meant he was continuously employed by the District, even after September 2, 2014. He offers no evidence or authority to support this argument, and we therefore have no cause to address it. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeited]"].)
That Bitz may have hoped to return to the District, or reasonably believed he would eventually be reinstated, does not change the fact that his employment was terminated, or the date on which the termination occurred. Thus, as the trial court observed, the District's April 23, 2015 letter could only be relevant to a claim for failure to rehire. However, no such claim was alleged. And even if traces of a claim for failure to rehire could be found in the first amended complaint (they cannot), the claim would require evidence that Bitz reapplied for employment with the District. (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 212 ["[Plaintiff] cannot show that [defendant] discriminated against him by failing to hire him for a job for which he did not apply].) No such evidence was presented.
Bitz asserts his March 7, 2015 letter sought reinstatement. It did not.
Based on our independent review of the record, we readily conclude that Bitz failed to raise a triable issue of material fact as to the date of his termination. It follows that the first cause of action for retaliation, to the extent based on FEHA, accrued on September 2, 2014 (Romano, supra, 14 Cal.4th at p. 493), more than one year before Bitz filed his administrative complaint with DFEH. It also follows that the first cause of action was untimely unless an exception applies. (§ 12960, form. subd. (d).)
That brings us to the continuing violation doctrine, "an 'equitable exception to the timely filing requirement.'" (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63-64.) "That doctrine," our Supreme Court has said, "allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 801.) To be "sufficiently connected," the unlawful employer conduct occurring outside the limitations period must: (1) be "sufficiently similar in kind" to conduct within the limitations period; (2) occur "with sufficient frequency"; and (3) "have not acquired a degree of 'permanence.'" (Ibid.) The plaintiff bears the burden to demonstrate his claims are timely under the continuing violation doctrine. (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.) Bitz makes no meaningful effort to carry this burden.
Though Bitz mentions the continuing violation doctrine in his appellate briefs, he does not set forth the elements of the doctrine, much less show how the evidence satisfies any element. He merely asserts without explanation that the District engaged in an ongoing course of retaliatory conduct that began in 2013 or 2014 and continued through February 17, 2016, when interim superintendent Penn reported that the District had completed its internal affairs investigation and the matter was "now considered to be closed." However, the letter merely reports the results of the District's internal affairs investigation, which was not alleged to have been retaliatory. (See Higdon v. Mabus (S.D. Cal. 2014) 5 F.Supp.3d 1199, 1212 ["An investigation by an employer, without disciplinary action, does not constitute an adverse employment action"].) Bitz does not explain how Penn's letter constitutes an act of retaliation at all, let alone one "sufficiently connected" to any retaliatory act alleged to have taken place outside the limitations period. We have no duty to develop such arguments for him. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) We therefore conclude that Bitz has forfeited the argument the trial court erred in refusing to apply the continuing violation doctrine. (See, e.g., Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
Bitz has also forfeited any argument that the one-year period provided by section 12960, former subdivision (d) was equitably tolled. Although Bitz argued that equitable tolling applied in the trial court, he does not mention that doctrine on appeal. Thus, we need not address that issue either. (Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)
For all of the foregoing reasons, we conclude the District established a complete defense to the first cause of action, to the extent based on FEHA. We next consider whether triable issues of fact preclude summary judgment of the extent based on Labor Code section 1102.5.
C. Whistleblower Retaliation
The first amended complaint alleges the District violated Labor Code section 1102.5 by terminating him in retaliation for engaging in protected activities. The purpose of Labor Code section 1102.5, the "whistleblower" statute, is to encourage employees to report unlawful employer activity without fear of retaliation." '" 'To establish a prima facie case of retaliation, a plaintiff must show that [he or] she engaged in protected activity, that [he or] she was thereafter subjected to adverse employment action by [his or] her employer, and there was a causal link between the two." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 287-288.) "Accordingly, a prerequisite to asserting a Labor Code section 1102.5 violation is the existence of an employeremployee relationship at the time the allegedly retaliatory action occurred." (Hansen v. Department of Corrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1546.) This last point will be critical to our analysis.
The Government Claims Act "establishes certain conditions precedent to the filing of a lawsuit against a public entity. As relevant here, a plaintiff must timely file a claim for money or damages with the public entity. (§ 911.2.) The failure to do so bars the plaintiff from bringing suit against that entity. (§ 945.4.)" (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) "Unless a specific exception applies, '[a] suit for "money or damages" includes all actions where the plaintiff is seeking monetary relief, regardless whether the action is founded in" 'tort, contract or some other theory.'" '" (California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 589; see also Le Mere v. Los Angeles Unified Sch. Dist. (2019) 35 Cal.App.5th 237, 245-247 [failure to comply with Government Claims Act bars claim for violation of Labor Code section 1102.5].)
Under the Government Claims Act," '[c]laims for personal injury must be presented not later than six months after the accrual of the cause of action, and claims relating to any other cause of action must be filed within one year of the accrual of the cause of action.'" (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118 (Willis).) Accrual for purposes of the Government Claims Act "is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants." (Ibid.; see also Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1496 [date of accrual "is generally the date the plaintiff incurred injury as a result of the defendant's alleged wrongful act or omission"].)
As previously discussed, the first amended complaint alleges acts of retaliation beginning in 2013 or 2014 and continuing through February 17, 2016. But posttermination retaliation is not actionable under Labor Code section 1102.5. (Hansen v. Department of Corrections and Rehabilitation, supra, 171 Cal.App.4th at p. 1546.) Therefore, any possible claim for retaliation under Labor Code section 1102.5 must have accrued, if at all, on or before the date of Bitz's termination. (Ibid.)
Here, as we have shown, the District presented evidence showing that Bitz was terminated on September 2, 2014, and Bitz failed to raise a triable issue as to that date. Thus, Bitz's claim for retaliation under Labor Code section 1102.5 accrued on or before September 2, 2014. (Willis, supra, 48 Cal.App.5th at p. 1118; Romano, supra, 14 Cal.4th at p. 493.) Bitz presented his claim to the District on August 12, 2016, just shy of two years after his termination. We have little difficulty concluding his claim was untimely.
Bitz suggests his March 7, 2015 letter to interim superintendent Penn qualifies as a government claim. We are not persuaded. Section 915 requires the government claim to be mailed or personally served on the clerk, secretary, or auditor of the public entity, or delivered in a manner specifically authorized by the public entity in a manner specifically authorized by the public entity in an ordinance or resolution. (§ 915, subd. (a).) Alternatively, the claim may be considered presented to the public entity if the entity's clerk, secretary, or auditor, or the Department of General Services actually receives it. (§ 915, subd. (e).) No evidence suggests Bitz complied with these requirements.
"If a claim is not timely presented, a written application may be made to the public entity for leave to present such claim. [Citation.] If the public entity denies the application, section 946.6 authorizes the injured party to petition the court for relief from the claim requirements." (Willis, supra, 48 Cal.App.5th at p. 1119.) The undisputed evidence establishes that Bitz sought leave to present an untimely claim, which was denied. The undisputed evidence also establishes that Bitz did not file a petition for relief pursuant to section 946.6. On the record before us, we are satisfied the District established a complete defense to the first cause of action to the extent based on Labor Code section 1102.5. We therefore conclude summary judgment was properly granted.
III. DISPOSITION
The judgment is affirmed. The District is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) &(2).)
We concur: DUARTE, Acting P. J., HORST, J. [*]
[*] Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.