Opinion
B297559
12-29-2020
KEVIN OKAMOTO, Plaintiff and Appellant, v. CITY OF PASADENA, Defendant and Respondent.
Curd, Galindo & Smith, Maximiliano Galindo, Tracy Labrusciano and Alexis Galindo for Plaintiff and Appellant. Michele Beal Bagneris, City Attorney, Arnold F. Lee, Deputy City Attorney; Burke, Williams & Sorensen, Susan E. Coleman and Traci I. Park for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC602657) APPEAL from an order of the Superior Court of Los Angeles County, Daniel S. Murphy, Judge. Affirmed. Curd, Galindo & Smith, Maximiliano Galindo, Tracy Labrusciano and Alexis Galindo for Plaintiff and Appellant. Michele Beal Bagneris, City Attorney, Arnold F. Lee, Deputy City Attorney; Burke, Williams & Sorensen, Susan E. Coleman and Traci I. Park for Defendant and Respondent.
Plaintiff and appellant Kevin Okamoto, formerly a detective with the Pasadena Police Department (the Department) appeals from a summary judgment in favor of defendant and respondent City of Pasadena (the City), on Okamoto's whistleblower claim under Labor Code section 1102.5, subdivision (b). Okamoto contends the trial court erred in finding no triable issue of fact as to whether Okamoto engaged in protected whistleblowing activity when he testified at a criminal trial that the Department had not trained him regarding the disclosure obligations Brady v. State of Maryland (1963) 373 U.S. 83 (Brady) imposes, and/or when he later informed his superiors about a lack of such training for detectives in the Department more broadly. We disagree and affirm.
Unless otherwise indicated, further unspecified statutory references are to the Labor Code.
FACTS AND PROCEEDINGS BELOW
A. Damas Investigation, Trial, and Resulting Internal Affairs Investigation
Okamoto began working as a police officer at the Department in 2001 and began working as a detective there in 2007. In this capacity, Okamoto investigated an assault that led to the criminal trial in People v. Edward Damas et al. (Super. Ct. L.A. County, No. GA079201) (Damas), which began in 2012. In the course of the trial, it came to light that Okamoto had not disclosed his interviews with a particular witness, including audio recordings of the witness's interviews and related materials. This became a "focal point for the defense" at the Damas trial, following which defense counsel made a series of complaints to the Department regarding Okamoto, including complaints based on Okamoto's failure to turn over potentially exculpatory evidence as required by Brady, supra, 373 U.S. at p. 87 ["the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment"].)
The Department retained the Los Angeles County Sheriff's Department to investigate the complaints. Beginning in May 2012, Okamoto voluntarily went on paid administrative leave during the pendency of that investigation.
On January 30, 2013, the Department conducted the disciplinary review stemming from the Damas case. At that time, Okamoto was informed by an internal affairs investigator for the case that his discipline would likely be 20 hours of unpaid leave, although the internal investigation and proposed discipline were not yet final.
B. Okamoto's Complaints Regarding Training at the Department
In an alleged effort to better understand the complaint against him regarding his Brady obligations, Okamoto "took it upon [himself] to inquire from [sic] other detectives regarding their knowledge of Brady," and ascertained that "some knew a little bit more than others, and the majority didn't even know what Brady was." (Italics added.) According to Okamoto, he then complained to two of his superiors that the Department was not formally training its officers regarding what Brady requires, and that the Department was not properly training them to handle evidence in criminal investigations.
C. Okamoto's Testimony in Sanford and the Related Internal Investigation
In February 2013, the defense in a different criminal case, People v. Sanford (Super. Ct. L.A. County, No. GA072292) (Sanford), called Okamoto to testify at the Sanford trial in connection with allegations that Okamoto and his partner had violated Brady. On February 4, 2013, Sergeant Ernesto Devis contacted Okamoto regarding the Sanford case, telling him " 'something similar to, "I think one of you guys need[s] to take the fall; evidence is missing." ' " Okamoto never reported this comment to anyone.
The next day, while Okamoto was testifying, at least two of Okamoto's superiors at the Department were present. Okamoto testified:
"[Counsel:] Okay. And while you were at the Orange County academy, do you have any training as it relates to the obligations of a police officer to turn over evidence to the prosecution and/or the defense?
"[Okamoto:] I don't recall.
"[Counsel:] . . . [B]etween the year 2001 and the date of February 20th, 2008, did you attend any conferences, seminars—talking formal right now—that dealt with law enforcement obligation to turn over exculpatory evidence to either the prosecution and/or the defense?
"[Okamoto:] Again, nothing jumps out at me, so I can't recall.
"[Counsel:] Prior to February 20th, 2008, had you ever heard the term 'Brady evidence'? [(Italics added.)]
"[Okamoto:] Never.
"[Counsel:] Prior to February 20th, 2008, were you aware . . . what your obligation was as far as turning over the information to the prosecution?
"[Okamoto:] I would document it in my report, yes."
Due to mishandling of evidence by the Department, including by Okamoto specifically, the court declared a mistrial, in connection with which it found Okamoto's testimony to be "not credible" because the information Okamoto stated he did not know was "Detective 101." The media covered this aspect of the Sanford case extensively, resulting in a public outcry against both the Department and Okamoto specifically.
On February 7, 2013, the Department placed Okamoto on paid administrative leave, reassigned his partner, and initiated an investigation into the handling of evidence in Sanford. That same day, the Department issued a press release announcing Okamoto's leave and the related internal investigation. Later in February 2013, the Department also initiated a department-wide audit, known as the Veritas Audit, to investigate evidence training and procedures at the Department.
D. Conclusions of Damas and Sanford Internal Investigations and Resulting Discipline
The internal investigation regarding Okamoto's conduct in the Damas matter involved both the failure to disclose evidence discussed above and other alleged misconduct unrelated to Brady disclosure obligations. The district attorney's office had initially requested that the Department investigate the possibility of a Brady violation in the Damas case, but later rescinded the request while the Department's investigation was still pending. The Department, however, did not drop the possible Brady violation from the scope of its investigation.
In March 2013, the Department concluded its investigation involving the Damas case. The investigators found that, although Okamoto's failure to disclose the evidence at issue did not reflect a Brady violation, Okamoto nevertheless erred by failing to disclose it. The Department ultimately sustained two allegations against Okamoto for "[u]nsatisfactory work performance."
The proposed discipline was a 160-hour suspension, not the 20 hours that had initially been discussed during his disciplinary hearing approximately two months earlier (i.e., before Okamoto's testimony in Sanford and the resulting initiation of another internal investigation). Prior Brady violations by other officers in the Department did not result in discipline of this severity, but rather a written warning or adverse comment, the lowest forms of discipline. Okamoto pursued review of the proposed discipline through the appropriate procedures, and approximately two years later, his suspension was reduced to a written warning.
The disciplinary review in the separate Sanford investigation took place in August 2013. Ultimately, the discipline imposed was a 30-hour suspension, which reflected a reduction via the appropriate grievance procedures from an initial recommendation of 60 hours.
E. Okamoto's Work at the Department Following the Internal Investigations
When Okamoto returned to work following his suspensions, he was reassigned to the neighborhood outreach unit. The Department explained that this transfer was based in part on concerns that, if he were to remain in the detective unit, he would have difficulty consistently following procedures, and would have difficulty testifying in support of the cases he investigated, given that his veracity had been called into question in open court. Okamoto admits that, as a result of his testimony in Sanford, the " 'district attorney didn't even want [him] to testify,' " and that his reputation with judicial officials was diminished.
Okamoto was later assigned to the role of police activities league coordinator, and thereafter to the safe school team. Over the course of his time in these various positions, Okamoto received pay raises and positive performance reviews. He was not permitted to work overtime on assignments that primarily involved enforcement, but he could and did work overtime. Okamoto challenged this restriction on overtime through the Department's grievance process, but the restriction was upheld.
F. Okamoto's Medical Retirement from the Department
Okamoto "was placed on temporary total disability" in September 2014, based on severe anxiety and stress resulting from "workplace incidents" that a Department psychologist ultimately confirmed rendered Okamoto mentally unfit to perform his duties as a peace officer.
G. Okamoto's Whistleblower Lawsuit
On November 30, 2015, Okamoto filed suit against the City. Okamoto's operative complaint alleges the City violated section 1102.5, subdivision (b), by retaliating against him for engaging in whistleblowing activity protected under that statute. Specifically, Okamoto alleged he engaged in such activity when he reported during his testimony in Sanford that the Department had not trained him on what Brady requires, as well as when he later complained to his superiors about the broader lack of such training and knowledge regarding Brady at the Department. He alleged the Department retaliated against him for this by imposing unusually harsh discipline in connection with the Damas investigation and by limiting his work assignments and ability to work overtime thereafter, and that as a result, Okamoto experienced severe anxiety, which resulted in his ultimate medical discharge from the Department.
1. Okamoto's Deposition Testimony
At his deposition, Okamoto testified that he never believed anyone at the Department was doing or had done anything illegal. Specifically, he testified as follows:
"[Counsel:] . . . [A]t any point when you were talking to your coworkers, did you ever say that this is, you know, their—'[the Department] is violating the law. They are teaching us to do the wrong thing'? Anything like that?
"[Okamoto:] No, I would never say that.
"[Counsel:] Okay.
"[Okamoto:] I never felt that. [¶] . . . [¶] . . . There's nobody that I can—I can confidently say that there was nobody that worked at the Department that I believe would do anything illegal."
2. The City's Summary Judgment Motion
The City moved for summary judgment, which the court granted. In its written order, the court explained that the evidence did not create a triable issue as to whether Okamoto engaged in the kind of protected conduct necessary to establish a prima facie case for whistleblower liability under section 1102.5. Specifically, the court found that, during Okamoto's testimony in Sanford, Okamoto had disclosed not a failure to provide training, but rather "his personal lack of familiarity with the law." The court further considered whether Okamoto asking his colleagues about what Brady required could constitute protected activity, and concluded they were more akin to "personnel disclosures" than reporting to an agency or individual with authority to investigate. Finally, the court concluded that a 2014 amendment to section 1102.5, which expanded the law to protect disclosures that are part of an employee's job duties, did not apply retrospectively to Okamoto's claims. On this basis as well, the court concluded that the conduct at issue was not protected and could not form the basis for a whistleblower claim.
The court entered judgment in favor of the City, and Okamoto timely appealed.
DISCUSSION
A. Standard of Review
"To secure summary judgment or adjudication, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action." (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 786.) "Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists." (Id. at pp. 786-787.) We review a grant of summary judgment de novo and "exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment or adjudication as a matter of law." (Id. at p. 787.) We " ' "consider[ ] all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." ' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
B. Elements of Prima Facie Whistleblower Claim Under Section 1102 .5 , Subdivision (b)
Section 1102.5, subdivision (b) provides that "[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee, or another employee who has the authority to investigate, discover, or correct the violation or noncompliance . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation." (§ 1102.5, subd. (b).) In order to make a prima facie case for whistleblower liability under section 1102.5, subdivision (b), the employee must show that: (1) he made the type of disclosure described in the statute, and thus engaged in protected whistleblowing activity; (2) he was thereafter subject to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action. (Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, 1540 (Hager).)
Once a whistleblower plaintiff makes a prima facie case, the burden shifts to the defendant under the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green (1973) 411 U.S. 792, 802-803. This appeal does not require us to reach this portion of the analysis, however.
For the purposes of determining whether an employee made a disclosure protected under section 1102.5, "[a] report made by an employee of a government agency to his employer is a disclosure of information to a government or law enforcement agency." (Hager, supra, 228 Cal.App.4th at p. 1548.) In order for such a report to constitute protected activity, it need not disclose an "actual violation of law" (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87 (Green)); rather, it is enough that the report be based on the employee's " ' "reasonably based suspicions" of illegal activity. [Citation.]' " (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592, quoting Green, supra, 19 Cal.4th at p. 87.) " 'To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed. [Citation.]' " (Ross, supra, 36 Cal.App.5th at p. 592.) The report itself need not contain an "express statement" that the employee believes unlawful activity has occurred. (Id. at p. 593.) In sum, an employee engages in protected conduct when he reports information he "reasonably believe[s] . . . discloses unlawful activity" under a specific law or regulation. (Ibid.) This focus on reasonable belief, as opposed to actual violations, is consistent with "the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation." (Green, supra, 19 Cal.4th at p. 77.)
Under the version of section 1102.5 in effect at the time of Okamoto's alleged disclosures, a disclosure made as part of an employee's job duties was not protected. (See Edgerly v. City of Oakland (2012) 211 Cal.App.4th 1191, 1207.) The Legislature amended section 1102.5 as of January 1, 2014 to expand the scope of the law and protect disclosures of unlawful activity "regardless of whether disclosing the information is part of the employee's job duties." (§ 1102.5, subd. (b).)
C. Okamoto Did Not Establish a Triable Issue as to Whether He Made a Disclosure Protected Under Section 1102 .5 , Subdivision (b)
On appeal, Okamoto takes the position that the trial court erred in concluding there was no triable issue as to whether he made a disclosure protected by section 1102.5. To support his position, Okamoto argues that he reported actual unlawful activity, and that he reasonably believed the training deficiencies he described to be unlawful. He further argues that, to the extent he made his reports in the course of performing his job duties, the post-2014 version of section 1102.5 applies to his claims. The City disputes that the record establishes a triable issue of fact not only as to protected conduct, but as to the other elements of Okamoto's prima facie case as well (adverse employment action and causation). We need not reach the majority of the arguments raised by the parties in order to resolve this appeal, as we conclude the trial court correctly found no triable issue as to whether Okamoto made disclosures protected by section 1102.5, subdivision (b).
To support his argument to the contrary, Okamoto contends that the Department's reported failure to train detectives regarding what Brady requires constitutes a violation of Brady, Penal Code section 1054.1, and due process more broadly. As a preliminary matter, none of these sources of law imposes a duty on police departments to train their police officers in a particular way; a failure to do so is thus not itself unlawful. (See Pen. Code, § 1054.1 [requiring "[t]he prosecuting attorney" to "disclose to the defendant or his or her attorney" certain materials "if [the materials are] in the possession of the prosecuting attorney or if the prosecuting attorney knows [them] to be in the possession of the investigating agencies"]; Brady, supra, 373 U.S. at p. 87 [addressing "suppression by the prosecution of evidence"].) Nevertheless, the existence of protected activity under section 1102.5, subdivision (b) depends not on whether Okamoto reported actual unlawful conduct, but rather on whether Okamoto reasonably believed or suspected that the Department's reported failure to train violated the law. (See § 1102.5, subd. (b) [describing protected disclosure as one of information "the employee has reasonable cause to believe . . . discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation"]; Green, supra, 19 Cal.4th at p. 87; Ross, supra, 36 Cal.App.5th at pp. 592-593.)
Okamoto cites a single case to support the idea that such a failure to train is unlawful: City of Canton, Ohio v. Harris (1989) 489 U.S. 378 (Canton). Canton is inapposite. It holds only that under "limited circumstances" "an allegation of a 'failure to train' can be the basis for liability under [section] 1983." (Canton, supra, 489 U.S. at p. 387.) Conduct that may be the basis for section 1983 liability is not necessarily the same thing as unlawful conduct. Moreover, in order for "inadequacy of police training [to] serve as the basis for [section] 1983 liability" under Canton, "the failure to train [must] amount[ ] to deliberate indifference to the rights of persons with whom the police come into contact." (Canton, supra, at p. 388.) The record supports no such finding, particularly given that there is no dispute that the Department trained its officers, including Okamoto, to disclose all evidence from an investigation.
But there can be no triable issue of fact on this point in light of Okamoto's deposition testimony that expressly disavows such a belief or suspicion. Specifically, Okamoto testified that he not only "never would say," but also "never felt," that the Department was " 'violating the law' " or that it was " 'teaching [its officers] to do the wrong thing,' " and further testified that he could "confidently say that there was nobody that worked at the department that [he] believe[s] would do anything illegal." Okamoto cannot establish protected activity in the face of his own testimony denying a necessary factual predicate to such activity.
On this basis alone, the court's summary judgment decision was correct, and we need not consider the parties' remaining arguments. (See Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975 ["We are obligated to uphold the trial court's decision if it is correct on any ground, regardless of the reasons the trial court gave."].)
It is not relevant to our analysis whether, as Okamoto contends, his reports of a lack of "Brady training" were accurate—for example, that the Veritas Audit investigators determined Okamoto's superiors "could [not] recall providing [Okamoto] with any specific Brady training." (Italics added.) Whether or not the Department's training was deficient, either with respect to Okamoto's training specifically or training of all detectives, Okamoto clearly testified that he did not perceive a violation of any law or regulation by the Department. As such, Okamoto cannot meet his burden of establishing protected conduct under section 1102.5, subdivision (b).
Accordingly, we affirm.
DISPOSITION
The judgment of the trial court is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------