Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC370326, Maureen Duffy Lewis, Judge.
Law Offices of Richard A. Love, Richard A. Love and Beth A. Shenfeld for Plaintiff and Appellant.
Hurrell Cantrall, Thomas C. Hurrell, and Melinda Cantrall for Defendants and Respondents.
ALDRICH, J.
INTRODUCTION
Plaintiff Darren Hager appeals from a summary judgment against him in his lawsuit for wrongful retaliatory discharge from employment as a Los Angeles County Deputy Sheriff. The trial court ruled that a prior federal court summary judgment in favor of defendants the County of Los Angeles and the Los Angeles County Sheriff’s Department (hereinafter defendants) of Hager’s claim under title 42 of the United States Code section 1983 collaterally estopped Hager from litigating his state law cause of action for wrongful retaliatory termination in violation of Labor Code section 1102.5. We conclude that the trial court erred in its application of res judicata, and triable issues of material fact preclude summary judgment of the substantive state law cause of action. Accordingly, the judgment is reversed.
All further statutory references are to the Labor Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
1. The factual predicate
a. Hager’s career as a deputy sheriff
Hager was sworn in as a deputy sheriff in November 1988 and was continuously employed as such until he was terminated from employment effective July 28, 2003.
In June 1998, then off duty Deputy Sheriff Jonathan Aujay disappeared in the Devil’s Punchbowl area of the Antelope Valley. The Sheriff’s Department conducted an investigation into the disappearance. Hager declared he was unaware of the information developed during that inquiry.
In December 1999, Hager served an arrest warrant on a suspect who was eventually charged with multiple felony counts. The following month, the suspect called Hager wanting to “ ‘work off’ ” his prison time. The suspect told Hager, among other things, that the “ ‘word on the street’ ” was that Deputy Aujay was killed. Hager reported this information to Lieutenant Ron Shreves, his immediate superior, and was told to investigate the information.
Between February 2000 and March 23, 2000, the suspect met variously with Hager, Detective Brandenburg, and his partner Detective Wiereter, and Drug Enforcement Agency (DEA) Agent Bailey. During those meetings, the suspect listed the names of people who were bragging that Deputy Aujay was murdered, and named “dirty cops,” including Deputy X, who he stated was involved in methamphetamine laboratories.
On March 23, 2000, Hager attended a meeting at the Sheriff’s Department Headquarters. Present were, among others, Lieutenant Shreves, Agent Bailey, and Assistant Sheriff Waldie. At the meeting, Assistant Sheriff Waldie explained that the DEA would “ ‘run with the narcotics case’ ” as the lead agency. Hager would be the Sheriff’s Department investigator assigned to the DEA Joint Task Force and report directly to Lieutenant Shreves about the investigation. Lieutenant Shreves would serve as liaison between the DEA and the Sheriff’s Department, and was responsible for the oversight of the Sheriff’s Department personnel assigned to the Joint Task Force. The parties to this lawsuit agree that Assistant Sheriff Waldie ordered Lieutenant Shreves and Hager “to document – but not investigate – any information developed during the DEA narcotics investigation concerning ‘dirty deputies’ or [Deputy] Aujay, with any such information to be turned over at the end of the narcotics investigation to the ICIB [(Internal Criminal Investigation Bureau)] and the Homicide Bureau for a subsequent investigation.” (Italics added.) Hager and Lieutenant Shreves understood that the DEA Joint Task Force was “not to conduct an investigation into wrongdoing by personnel, other than to receive information as we came across it.” (Italics added.)
On April 11, 2000, Hager was sworn in as a task force officer for the DEA Joint Task Force in narcotics investigation, which was comprised of Agent Bailey, DEA Agent Mark Cory, and Hager as principal investigators. During the period this Joint Task Force was in operation, Hager orally related to Lieutenant Shreves only, on a weekly and daily basis, information he received during the investigation, and provided written summaries to Lieutenant Shreves only. Hager remained in this position until April 23, 2002, when the Sheriff’s Department ordered him transferred to its Custody Division. Defendants asserted in their moving papers that “In the course of one of his investigations, Hager obtained information about possible deputy involvement in both the disappearance of Deputy Sheriff Jonathan Aujay and the narcotics trade in the Antelope Valley.” (Italics added.) Hager says this information came to him before he joined the task force.
b. The Departmental investigations into the information that Hager had relayed
Meanwhile, in early September 2001, the Internal Criminal Affairs Bureau (ICAB) commenced its own investigation. Sergeant Rodriguez of the Sheriff’s Department was assigned to conduct a criminal investigation into an allegation that the DEA Joint “task force received information alleging that Department personnel may be involved in drug trafficking.” In the course of his investigation, Rodriguez interviewed Hager and received from Hager all of the memoranda Hager had sent to Lieutenant Shreves. Hager described the DEA Joint Task Force’s mission to Rodriguez as “targeting the methamphetamine trade in the Antelope Valley. The [DEA Joint] Task Force conducted surveillances, wire taps, undercover buys, and cultivated informants, to gain information into the targeted suspects.” Asked by Rodriguez whether he conducted any follow up investigation of the allegations, Hager responded that Lieutenant Shreves directed him “to document the informants’ allegations and to forward them to [Shreves] and not do any follow up.” (Italics added.) Rodriguez closed the investigation on November 20, 2001, after concluding that “there appear[ed] to be no evidence to support that any of the named Department personnel committed any criminal acts. The investigation determined that many of the inferences were based on unsubstantiated hearsay and no corroborating evidence was discovered that showed any violations of the law had occurred.”
In mid-December 2001, the Ombudsman’s Office received several complaints by Sheriff’s Department personnel that members of the DEA Joint Task Force had disparaged their names and “ ‘caused them difficulty in their jobs’ ” and so the investigation was expanded to include “ ‘performance to standards issues’ ” relating to the DEA Joint Task Force. In January 2002, the scope of the ongoing ICAB investigation was expanded to include Hager’s statements about Deputy Aujay’s disappearance and potential deputy involvement. Ultimately, the investigation lasted nearly a year and consisted of 101 interviews and reviews of voluminous documents, tape recorded interviews and personnel files.
Also in December 2001, the ICAB, headed by investigator Gregg, began an inquiry into Lieutenant Shreves’s statements about Deputy X’s involvement in Deputy Aujay’s disappearance.
In April 2002, Hager met with a Federal Bureau of Investigation (FBI) agent to whom he passed on documents and reported all of the information he knew concerning Deputy Aujay’s disappearance and potential deputy involvement in narcotics. That same month, Hager met with Richard Fausset, a Los Angeles Times reporter, four to six times and discussed the same information without including the names of deputy sheriffs or handing over documents. The Los Angeles Times published an article on Deputy Aujay’s disappearance.
c. Hager’s termination from employment with the Sheriff’s Department
In December 2002, Hager received a letter announcing the Sheriff’s Department’s intention to terminate him from employment. The Sheriff’s Department held two Skelly hearings into Hager’s termination, in January and July 2003, at which hearings Hager was represented by counsel. After the second such hearing, the Sheriff’s Department decided to terminate Hager from employment with the Sheriff’s Department. Hager learned on July 28, 2003 of his discharge.
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
The letter discharging Hager states that the grounds for this employment action were: (1) “in violation of [Sheriff’s Department] Manual of Policy and Procedures Sections 3-01/030.15, Conduct Toward Others and/or 3-01/030.35, Unnecessary Interference, on or between December 1999 and October 2001, you conducted a personnel investigation regarding Deputy [X] and recklessly accused Deputy [X] of associating with drug dealers and having knowledge/involvement in the alleged murder of Deputy Jonathan Aujay. Moreover, you made these allegations to your supervisors. [¶] 2. That in violation of Manual... Sections 3-01/040.70, False Statements and/or 3-01/050.10, Performance to Standards, you made false statements to your supervisor, Lieutenant Ronald Shreves, concerning information gleaned from Federal wire taps and/or various informants, which was used to support your theory that Deputy [X] was involved in criminal acts with known drug dealers and may have been involved in the alleged murder of Deputy Aujay.”
2. The procedural predicate
a. The federal action
Insisting the accusations against him were false and that he did not investigate Deputy X or Deputy Aujay’s disappearance but merely reported information he came across, Hager filed his wrongful termination action in federal district court against the County, the Los Angeles Sheriff’s Department, and numerous individual employees of the Sheriff’s Department. Cast as five federal and state law claims, Hager “allege[d] he was discharged In retaliation for truthfully and accurately reporting to his superiors information that implicated fellow Deputies in various criminal activities, including the manufacture, sale, and distribution of illegal narcotics, and the unsolved murder of Deputy... Aujay.” Hager sought damages for (1) violation of title 42 of the United States Code section 1983 (§ 1983) based on defendants’ alleged abridgment of Hager’s First Amendment right to freedom of speech and Fifth Amendment right to due process; (2) retaliatory discharge in violation of section 1102.5, subdivision (b); (3) wrongful termination in violation of public policy (Tameny ); (4) invasion of privacy (Cal. Const., art. I, § 1); and (5) emotional distress. Hager alleged that defendants “established... an unconstitutional policy... to deprive plaintiff of his constitutional rights... in retaliation for [his] discovering, investigating, or reporting the informationto” the (1) FBI, (2) Los Angeles Times, (3) Sheriff’s Department, and (4) DEA.
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.
The federal court entered summary judgment in favor of defendants of Hager’s section 1983 First Amendment and substantive due process claims, and his state law causes of action for invasion of privacy and emotional distress. In an exhaustive analysis, the federal court separately analyzed Hager’s statements to each of the following audiences: (1) the FBI, (2) the Los Angeles Times reporter (3) the Sheriff’s Department, and (4) the DEA. The federal court concluded that Hager’s oral and written communications to the Sheriff’s Department and the DEA were not constitutionally protected speech (Garcetti v. Ceballos (2006) 547 U.S. 410) and hence did not give rise to a claim under section 1983. As for Hager’s communications to the FBI, although the federal court found triable issues of fact about whether that speech was constitutionally protected, it ruled that Hager’s communications to the FBI were not a substantial or motivating factor in the Sheriff’s Department’s decision to discharge him from employment because he spoke to the FBI after the Sheriff’s Department had commenced its inquiry into Hager’s conduct. The federal court explained that “the genesis of the decision to terminate [Hager] cannot be pretextual because the process began prior to [Hager’s] protected speech to the FBI.” Likewise, the court ruled that Hager’s communications to the Los Angeles Times were not a substantial factor in the Sheriff’s Department’s decision to terminate him from employment because no one at the Sheriff’s Department knew Hager had spoken to the newspaper.
Significantly, the federal court declined to consider or adjudicate Hager’s state law Tameny claim or his cause of action for wrongful retaliatory termination in violation of section 1102.5. Although the federal court had adjudicated two of Hager’s state law causes of action, at the close of its ruling, because it dismissed all of the federal claims, pursuant to title 28 of the United States Code section 1367(c)(3) and noting the state law causes of action “involve vastly different legal issues from the § 1983 claims, ” and had not been briefed in the moving papers, the federal court exercised its discretion and declined to retain supplemental jurisdiction over the remaining state law causes of action for retaliatory discharge. (Italics added.) The court quoted from Acri v. Varian Associates, Inc. (9th Cir. 1997) 114 F.3d 999, that “ ‘in the usual case in which all federal-law claims are eliminated before trial, the balance of factors... will point toward declining to exercise jurisdiction over the remaining state-law claims.’ [Citation.]” (Id. at p. 1001.)
b. The instant state-court wrongful termination suit
Immediately after the federal court’s ruling, in April 2007, Hager brought the instant state action against the County and the Sheriff’s Department. The operative complaint is cast as two causes of action, one for wrongful retaliatory discharge in violation of section 1102.5 and the other for wrongful termination in violation of public policy. Therein, Hager alleged that he was terminated from employment because he followed orders and truthfully reported as directed by Sheriff’s Department executives, information to his supervisor, and the DEA or FBI, information indicating the involvement of Deputy X in illegal activity such as the manufacture or distribution of methamphetamine or other drugs, and the implication of Deputy X in the unsolved disappearance or homicide of Deputy Aujay. Hager has withdrawn his cause of action for wrongful termination in violation of public policy as public entities are immune to Tameny suits (Gov. Code, § 815, subd. (a); Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899-900; Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 329). Therefore, the only claim at issue in this appeal is Hager’s cause of action under section 1102.5. (§ 1106; Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 241; see Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1312-1313.)
See page 17, infra.
Defendants moved the trial court for summary judgment on the grounds that (1) Hager could not establish that his termination from employment with the Sheriff’s Department was retaliatory, and (2) the issue of whether Hager’s termination was retaliatory has already been adjudicated in defendants’ favor in the federal court. In support of their contention that Hager could not establish a prima facie case of retaliatory termination under section 1102.5, defendants asserted that they discharged Hager from employment for cause because he violated four sections of the Sheriff’s Department’s Manual of Policy and Procedures, namely, Policy Manual sections 3-01/030.15 (officers must conduct themselves in a manner that will foster greatest harmony and cooperation), 3-01/030.35 (deputies shall not knowingly meddle, interfere, and/or unnecessarily interject themselves beyond the scope of their duties to the investigations or other matter that are the responsibility of another member or another law enforcement agency), and 3-01/040.70 (members shall not make false statements when questioned, interviewed, or in reports).
In opposition, Hager noted that defendants effectively conceded that Hager engaged in protected activity by reporting the information of illegal activity as he was ordered to do. And, defendants conceded that Hager suffered an adverse employment decision. Defendants’ argument that there was no causal connection between his reports and his termination was based on their assertion that they discharged him for cause for conducting a “personnel investigation.” However, Hager observed that defendants pointed to no actual evidence of this “personnel investigation,” and in any event, he denied he conducted a “personnel investigation.” Hager also denied that the DEA Joint Task Force was assigned to do anything other than investigate narcotics activity in the Antelope Valley. Hager further denied falsely reporting the information he received. Finally, Hager set forth his evidence disputing that defendants’ stated reasons for terminating him were not pretext for unlawful retaliatory termination.
The trial court granted defendants’ motion for summary judgment on the ground that Hager’s complaint was barred by the doctrine of collateral estoppel. The trial court reasoned that the federal court had already determined that Hager had not shown, beyond mere speculation, that defendants’ reasons for terminating him from his job were false or pretextual. Hager filed his timely appeal.
CONTENTIONS
Hager contends that the trial court erred in granting summary judgment because (1) neither res judicata nor collateral estoppel bind him to the federal court judgment, and (2) triable issues of fact preclude summary judgment.
DISCUSSION
1. The standard of review
“ ‘ “Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court’s decision to grant [defendants] summary judgment de novo.” [Citation.]’ [Citation.]” (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)
In moving for summary judgment, “[a] defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) Once the moving party defendant meets its burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).) To meet that burden, the plaintiff “ ‘ “shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....” ’ [Citations.] Where the plaintiff fails to satisfy this burden, judgment in favor of the defendant shall be granted as a matter of law. [Citation.]” (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014.)
Our task is to “view the evidence in a light favorable to plaintiff as the losing party [Hager] [citation], liberally construing [Hager’s] evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in [Hager’s] favor. [Citations.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) With these rules in mind, we turn to the papers presented in the summary judgment procedure.
2. The trial court erred in applying the doctrine of res judicata.
a. The federal court declined to exercise discretionary pendent jurisdiction over Hager’s state law cause of action under section 1102.5 and so res judicata does not apply.
Res judicata precludes relitigation of the same cause of action and piecemeal litigation by splitting a single cause of action. (Merry v. Coast Community College Dist. (1979) 97 Cal.App.3d 214, 221 (Merry).) It also bars relitigation of the same cause of action on a different legal theory or for different relief. (Id. at p. 222.) “The prior final judgment on the merits settles issues which were not only actually litigated but every issue that might have been raised and litigated in the first action. [Citations.]” (Ibid.) Thus, a “final valid judgment is ‘conclusive on the parties,... as to all matters, fact and law, that were or should have been adjudicated in the proceeding.’ [Citation.]” (Id. at pp. 224-225.)
Principles governing the federal court’s power to exercise pendent jurisdiction over nonfederal claims come into play when we determine the preclusive effect of a prior federal judgment in a subsequent state court action on the state claims. (Merry, supra, 97 Cal.App.3d at p. 222.) Dismissal of a federal claim on the merits by summary judgment “either defeats or requires a federal court to refuse to exercise its pendent jurisdiction over nonfederal claims. [Citations.]” (Id. at pp. 225-226.) Thus, “ ‘[a] federal court’s discretionary refusal to exercise pendent jurisdiction over a state claim does not bar further litigation of the state claim in state court.’ [Citation.]” (Harris v. Grimes (2002) 104 Cal.App.4th 180, 188, quoting from Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 287.)
In Merry, the plaintiff brought actions in federal and state court. The federal court granted summary judgment of the plaintiff’s claims under section 1983 of the Fifth and Fourteenth Amendments and article I, section 8, clause 8 of the United States Constitution in favor of the defendants for failure to state a claim. The trial court sustained the defendants’ demurrer of the plaintiff’s state common law causes of action based on the same transactions and injuries as alleged in the federal suit, on the basis of res judicata. The appellate court reversed. Merry explained that although the plaintiff could have brought his state causes of action along with his federal ones under the federal court’s pendent jurisdiction, the federal court would have declined to exercise discretionary pendent jurisdiction to retain and decide the state claims, the Merry court surmised, because the federal court had summarily adjudicated that the federal claims lacked merit. (Merry, supra, 97 Cal.App.3d at p. at p. 227.) The plaintiff’s state claims would not have been litigated, as a jurisdictional matter, and hence res judicata did not bar them. (Id. at pp. 225-231.)
Although the Merry court was required to discern whether the federal court would have declined to take pendent jurisdiction over the state law claims, here we know what the federal court was thinking. As in Merry, the federal court here disposed of all of Hager’s federal claims and resolved two of his state causes of action by summary judgment, but explicitly declined to take pendent jurisdiction over Hager’s state law causes of action for wrongful termination in violation of public policy and in violation of section 1102.5, taking the time to point out that the remaining two state causes of action “involve vastly different legal issues from the § 1983 claims.” (Italics added.) Therefore, pursuant to Merry, where Hager’s federal action was determined by summary judgment, and where that court deliberately declined to take jurisdiction over and address two of Hager’s state law causes of action, Hager is not barred from litigating those causes of action in state court.
Defendants counter that the rule of Merry that the federal court’s refusal to exercise pendent jurisdiction over a state cause of action does not preclude filing in state court does not apply where the causes of action in both courts are based on the same primary right. Citing Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441 and City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, defendants assert that “the cases cited by plaintiff merely find that the fact that a court declines to exercise supplemental jurisdiction does not,in [and] of itself, bar a party from litigating the severed state claim in state court.” (Original emphasis.) Effectively, defendants argue that we should apply res judicata to bar this lawsuit because the elements of that doctrine are present, notwithstanding the conclusion in Merry that the federal court’s failure to exercise pendent jurisdiction does not bar litigation of the issue in state court. We disagree.
Mattson is distinguished because the federal claim there was fully adjudicated by trial. (Cf. Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 508 [federal judgment after trial barred state court judgment].) Mattson distinguished Merry, because, just as here, Merry was disposed of by summary judgment. (Mattson v. City of Costa Mesa, supra, 106 Cal.App.3d at pp. 453-454.) Nor are we faced with the worry in Mattson of encouraging gamesmanship. Mattson imagined that plaintiffs could halfheartedly request the federal court exercise pendent jurisdiction in the hopes the federal court would decline the request thereby enabling plaintiffs to take a second chance in state court. (Id. at p. 455.) We are not faced with that concern here because Hager asserts he had no prior notice that the federal court would decline to exercise pendent jurisdiction.
Simi Valley is also distinguished. The federal court in Simi Valley had ruled that the officers’ conduct was objectively reasonable (City of Simi Valley v. Superior Court, supra, 111 Cal.App.4th at p. 1083), the very issue at the heart of the plaintiffs’ state law cause of action. By contrast, here, the federal court purposefully declined to exercise its discretionary pendent jurisdiction exactly because the state law causes of action raised different issues than those actually litigated by the federal court. Therefore, as Hager has not yet had an opportunity to litigate his wrongful retaliatory termination cause of action (§ 1102.5), res judicata cannot be raised as a bar to resolution of this state law cause of action by a state court.
b. Collateral estoppel does not apply because the issues actually litigated in and decided by the federal court are not identical to the issues to be determined in state court.
Collateral estoppel, also known as issue preclusion, is one aspect of the res judicata effect of a final judgment on the merits. (Merry, supra, 97 Cal.App.3d at p. 221.) Collateral estoppel “precludes the relitigation of an identical issue necessarily decided in previous litigation. [Citation.]” (Huber v. Jackson (2009) 175 Cal.App.4th 663, 677.) Stated otherwise, “ ‘[f]or a prior adjudication to give rise to issue preclusion, it must appear that the identical issue was actually litigated and necessarily decided in a prior proceeding.’ [Citation.] ‘Unless the issue or cause of action in the two actions is identical, the first judgment does not stand as a bar to the second suit. [Citations.] “ ‘If “anything is left to conjecture as to what was necessarily involved and decided” there can be no collateral estoppel [citations].... “[I]t must appear... that the precise question was raised and determined in the former suit....” ’ [Citation.]” [Citation.]’ [Citation.]” (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1520.) (Original italics omitted; italics added.) “The ‘identical issue’ requirement addresses whether ‘identical factual allegations’ are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 342, italics added.)
In moving for summary judgment, defendants relied on collateral estoppel to bar Hager from relitigating the issue of pretext. Defendants asserted that the federal court had already actually litigated and decided that the Sheriff’s Department’s proffered explanations for terminating Hager, namely, that he conducted a “personnel investigation” of Deputy X and recklessly accused Deputy X of associating with drug dealers and having knowledge of or involvement in Deputy Aujay’ death, were not false or a pretext masking unlawful retaliation. The federal court stated inter alia, “there is no evidence that the proffered reasons for his termination are pretextual” and “based on this record,” the federal court ruled, “no reasonable jury could find that the proffered reasons for [Hager’s] termination were pretextual.”
“[A] plaintiff alleging retaliation for the exercise of constitutionally protected rights must initially show that the protected conduct was a ‘substantial’ or ‘motivating’ factor in the defendant’s decision. [Citation.] At that point, the burden shifts to the defendant to establish that it would have reached the same decision even in the absence of the protected conduct. [Citation.]” (Soranno’s Gasco, Inc. v. Morgan (9th Cir. 1989) 874 F.2d 1310, 1314, quoting from Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 287, superceded by statute on other grounds as stated in Rivera v. U.S. (9th Cir. 1991) 924 F.2d 948, 954, fn. 7.)
However, we conclude that collateral estoppel does not apply here to bind Hager to the federal court’s finding of lack of pretext because the federal court did not actually litigate or necessarily decide an issue posed by Hager’s state law cause of action for termination in violation of section 1102.5. “Precisely defining the issue previously decided and the one sought to be precluded is critical.” (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1513.) Defendants’ definition of the issue actually litigated is sloppy. What the federal court did litigate and determine was that Hager’s speech to the FBI was not a substantial motivating factor in the Sheriff’s Department’s decision to discharge him. That court determined that Hager could not show pretext in that he could not demonstrate “that he was terminated for his protected speech to the FBI.” (Italics added.) Having concluded that Hager’s communications to the Sheriff’s Department and the DEA were not constitutionally protected and hence were not actionable under section 1983 (Garcetti v. Ceballos, supra, 547 U.S. 410), the federal court never reached and hence never decided whether Hager’s speech to the Sheriff’s Department or the DEA was a motivating factor in his termination from employment, or whether the proffered reasons for Hager’s termination were pretext for his speech to the Sheriff’s Department or DEA, issues that are essential to Hager’s cause of action for wrongful retaliatory termination in violation of section 1102.5.
Under California law, Hager’s reports to his employer and the DEA are protected by section 1102.5. (Colores v. Board of Trustees, supra, 105 Cal.App.4th at pp. 1312-1313 [§ 1102.5 concerns employees who report to public agencies; public employee qualifies as whistleblower when reporting to employer].) The federal court never made a determination whether Hager was engaged in protected whistleblowing activity under section 1102.5 when he reported to his employers, the issue raised by his state law claim. Nor did the federal court determine whether Hager’s discharge from employment was motivated in whole or in part by his reports to the Sheriff’s Department or the DEA.
Another reason Hager is not barred from litigating his state law cause of action under section 1102.5, is that “ ‘[c]ollateral estoppel does not apply where there are changed conditions or new facts which did not exist at the time of the prior judgment, or where the previous decision was based on different substantive law.’ [Citation.]” (Huber v. Jackson, supra, 175 Cal.App.4th at p. 678.) This is so because “[a] corollary of the rule that collateral estoppel is confined to issues ‘actually litigated’ is the requirement that the issue decided previously be ‘identical’ with the one sought to be precluded. [Citations.]” (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 616 & 618-619 [no collateral estoppel where prior federal court applying New Jersey law required proof of direct competition, whereas California law did not].) In defending section 1983 claims, the employer must show by a preponderance of the evidence that it would have reached the same employment decision in the absence of protected conduct. (Mt. Healthy City Board of Ed. v. Doyle, supra, 429 U.S. at p. 287; Yartzoff v. Thomas (1987) 809 F.2d 1371, 1376 [“Only the burden of production shifts; the ultimate burden of persuasion remains with the plaintiff.”].)
In California, by contrast, the burden of proof on the employer is higher. Once the employee demonstrates, by a preponderance of the evidence, that a proscribed activity “was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in the activities protected by Section 1102.5.” (§ 1102.6, italics added.) Therefore, the federal court did not apply the same burden of proof. For these reasons, Hager is not collaterally estopped from litigating whether he was wrongfully terminated for whistle blowing to the DEA and the Sheriff’s Department. (§ 1102.5.)
3. Triable issues of material fact preclude summary adjudication of Hager’s cause of action for wrongful retaliatory termination under section 1102.5 .
Preliminarily, we reject as specious, defendants’ contention that Hager waived his contention that he raised triable issues of fact below by failing to cite to the specific facts listed in defendant’s separate statement that he claims were disputed. “It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. [Citation.]” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Specific pinpoint page references, rather than block references are required. (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) While Hager did not cite to the separate statement itself, he provided pinpoint page references to the record for each of his contentions and appropriately related them to his argument.
a. The law
Section 1102.5, subdivision (b) provides, “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.”
The plaintiff/employee’s prima facie case of retaliation requires a showing that the employee (1) engaged in a protected activity, (2) the employer subjected the employee to an adverse employment action, and (3) a causal link between the two exists. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) “[A]n employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity. [Citation.]” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.)
Retaliation plaintiffs may prove their claims in different two ways: “[R]etaliation may be proved by direct evidence. ‘Where a plaintiff offers direct evidence of discrimination that is believed by the trier of fact, the defendant can avoid liability only by proving the plaintiff would have been subjected to the same employment decision without reference to the unlawful factor.’ [Citation.]” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138; accord, Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68.) We disagree with Hager that the Sheriff’s Department’s termination letter constitutes direct evidence of retaliation. At best, because it lists both lawful grounds (conducting a personnel investigation in violation of the policy manual) and unlawful grounds (reporting information of illegal activity to superiors) for an adverse employment action, it raises a triable issue of fact about the actual reasons for termination.
The other way to prove retaliation is by circumstantial evidence. (Mokler v. County of Orange, supra, 157 Cal.App.4th at p. 138.) In the absence of direct evidence of the employer’s discriminatory intent, the system of shifting burdens is applied to aid in the presentation and resolution of retaliation suits, pursuant to the three-part test developed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. First, the plaintiff establishes a prima facie case of retaliation. Then, the burden shifts to the employer to demonstrate that the employment action would have been taken for legitimate, independent reasons, even if the employee had not engaged in activities protected by section 1102.5. (§ 1102.6.) Finally, the burden returns to the plaintiff to prove that the employer’s proffered reason was a pretext to mask an illegal motive. (Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 68; Mokler, supra.)
b. Application to this case
In support of his initial burden, Hager submitted evidence that he engaged in activity protected by section 1102.5 because he conveyed information to a law enforcement agency, the DEA and the Sheriff’s Department, that he had reasonable cause to believe disclosed violations of state law. Assistant Sheriff Waldie and Lieutenant Shreves ordered Hager to document, without investigating or following up on, any information related to him about the death of Deputy Aujay or any potential involvement of deputies in criminal conduct. Hager declared he reported information to Lieutenant Shreves that he obtained during his ongoing narcotics operation authorized by the Sheriff’s Department with the DEA Joint Task Force. That information disclosed potential violations of narcotics and homicide statutes, including Penal Code section 187; Health and Safety Code sections 11378, 11379, and 11379.6.
Indeed, defendants admit that Hager’s conduct of transmitting to Lieutenant Shreves and the DEA Joint Task Force information he received implicating deputies in the death of Deputy Aujay and in drug trafficking constituted protected activity under section 1102.5. The notice of termination sent by the Sheriff’s Department reads in relevant part: “1. That in violation of Manual of Policy and Procedures... you conducted a personnel investigation... and recklessly accused Deputy [X] of associating with drug dealers and having knowledge/involvement in the alleged murder of Deputy Jonathan Aujay. Moreover, you made these allegations to your supervisors.” (Italics added.) The fact that the information Hager received was corroborated by Detective Brandenburg’s independent investigation only supports the conclusion that Hager reasonably understood he had reasonable cause to believe the information disclosed violations of state law and so he was engaging in protected activity. (§ 1102.5, subd. (b); Patten v. Grant Joint Union High School Dist., supra, 134 Cal.App.4th at p. 1384.)
Next, there is no dispute that the Sheriff’s Department subjected Hager to adverse employment action. (Patten v. Grant Joint Union High School Dist., supra, 134 Cal.App.4th at p. 1384.) Hager was demoted to the Sheriff’s Department’s Custody Division and then he was discharged from employment. Defendants concede this.
Finally, Hager presented evidence of a causal link between his reports and his discharge. (Ibid.) Among other evidence raised in his opposition to the summary judgment motion, Hager asserted that defendants’ proffered reasons for their decision to discharge Hager were false. (See Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 147 [“it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation”]; Mokler v. County of Orange, supra, 157 Cal.App.4th at p. 140 [plaintiff may establish pretext indirectly by showing employer’s explanation unworthy of credence].) In particular, defendants asserted two reasons for Hager’s discharge from employment. First, they claim that Hager “was not fired for reporting the suspected criminal activity, but for going above and beyond the reporting and conducting a personal ‘personnel’ investigation into fellow deputies.” For this proposition, they cited a portion of Chief Tyler’s deposition; the nearly year-long ICAB investigation conducted by Sergeant Gregg; Chief Tyler’s review of the ICAB investigation; and Chief Tyler’s review of Hager’s personnel file and discussions with other deputies in the Department. Second, defendants argued they terminated Hager from employment for making false statements to his supervisor “concerning information gleaned from Federal wire taps and/or various informants, which was used to support [Hager’s] theory that Deputy [X] was involved in criminal acts with known drug dealers and may have been involved in the alleged murder of Deputy Aujay.” In support of this ground, defendants cited Chief Tyler’s deposition.
However, Hager disputed these two proffered reasons. In his 42-page declaration, filed under penalty of perjury, Hager stated not only does he not understand what a “personnel investigation” is, but neither he nor the DEA Joint Task Force conducted a “personnel” investigation on any deputy sheriff in general, or Deputy X in particular. Although defendants state their view that Hager understood the purpose of the DEA Joint Task Force was to target the disappearance of Deputy Aujay, it is undisputed that the mission of the DEA Joint Task Force was to conduct an investigation into narcotics in the Antelope Valley, and Hager declared as such. More important, Hager cited Sergeant Gregg’s admission in his deposition that he had been told by Hager and Lieutenant Shreves that they had been ordered to document but not investigate, and that Sergeant Gregg never developed any information from any source that those statements Hager and Lieutenant Shreves made were false.
Additionally, Hager observed that defendants had failed to carry their burden on summary judgment to demonstrate actual facts to support Sergeant Gregg’s conclusion that Hager had conducted a “personnel investigation.” Hager also cited facts to undermine the basis for Sergeant Gregg’s and Chief Tyler’s conclusions. For example, Hager observed that, during his investigation for ICAB, Sergeant Gregg never interviewed DEA Agent Bailey who worked with Hager on the DEA Joint Task Force. Sergeant Gregg never saw Detective Brandenburg’s search warrant affidavit or report referring to Detective Brandenburg’s investigation and conclusion that Deputy X “ ‘murdered Deputy Aujay to prevent him from arresting them or exposing their criminal activity.’ ”
Additionally, Hager declared that rather than to conduct an investigation or make “reckless accusations,” he simply documented and reported to Lieutenant Shreves all information received from his informants, which referred to Deputy X or Deputy Aujay’s disappearance, just as ordered by Assistant Sheriff Waldie on March 23, 2000. Hager asserted and supported by declaration that information on “dirty deputies” or Deputy Aujay, which arose during the DEA narcotics investigation, was documented and turned directly over to Lieutenant Shreves, as ordered by Assistant Sheriff Waldie. Hager supported his assertion with citation to the numerous documents he had forwarded to Lieutenant Shreves during the course of his tenure with the DEA Joint Task Force. Hager observed that it was Detective Brandenburg, not he, who asked Williams about “ ‘dirty deputy’ ” information. Otherwise, Hager only obtained information incidental to and part of the DEA narcotics investigation.
Finally, Hager disputed that he made false statements concerning the FBI wiretaps, defendants’ second proffered justification for discharging Hager from his position with the Sheriff’s Department. Hager observed that Chief Tyler never identified the false statements concerning information from federal wiretaps were during the Skelly hearings in January and July 2003. Only after his termination, Hager declared, did he hear for the first time that Chief Tyler alleged 10 wiretap conversations that were falsely reported and supported the termination. The wiretap transliterations are included in Hager’s opposition to the summary judgment motion.
The point of our litany is that numerous material, factual issues here preclude summary judgment of Hager’s cause of action for wrongful retaliatory termination in violation of section 1102.5. We name only a few of the pertinent disputed facts that we perceive in our analysis of this appeal. Because the trial court granted summary judgment erroneously relying on the doctrine of res judicata and collateral estoppel, it never reached the substance of Hager’s case.
DISPOSITION
The judgment is reversed. Respondent to bear costs of appeal.
We concur: CROSKEY, Acting P. J.KITCHING, J.