Shipman v. California Dept. of Corrections

Full title: JAMES SHIPMAN, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF…

Court: California Court of Appeals, Fifth District

Date published: Jan 3, 2008

No. F050317 (Cal. Ct. App. Jan. 3, 2008)

Opinion

JAMES SHIPMAN, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants and Respondents. F050317 California Court of Appeal, Fifth District January 3, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from judgments of the Superior Court of Tuolumne County, Super. Ct. No. CV51091, Eleanor Provost, Judge.

Law Offices of Lanny M. Tron, Lanny M. Tron for Plaintiff and Appellant.

Porter, Scott, Weiberg & Delehant, Michael W. Pott and Thomas L. Riordan for Defendants and Respondents California Department of Corrections and Rehabilitation, Matthew C. Kramer and Kathleen Prosper.

Mayall, Hurley, Knutsen, Smith & Green, Mark E. Berry and David M. Trent for Defendant and Respondent Jackson Scott Bollinger.

OPINION

Gomes, J.

Plaintiff James Shipman (Shipman) appeals summary judgments granted in favor of defendants California Department of Corrections and Rehabilitation (CDCR),¹ Matthew C. Kramer (Kramer), Kathleen Prosper (Prosper) (collectively the CDCR defendants), and Jackson Scott Bollinger (Bollinger) on Shipman’s lawsuit which alleged violations of the California Whistle blower Protection Act (WPA), Labor Code section 1102.5, and 42 United States Code section 1983, as well as claims of defamation and intentional infliction of emotional distress. We conclude the trial court properly granted summary judgment.

1 The events in question occurred under the CDCR’s former name, California Department of Corrections.

FACTUAL AND PROCEDURAL BACKGROUND

I. Summary of Facts

A. Shipman’s Receipt and Dissemination of the Bollinger Documents

Shipman is a CDCR correctional counselor who worked at the Sierra Conservation Center (SCC) in Jamestown. Bollinger also was employed by the CDCR and transferred to SCC in January 2001. In December 2001, Bollinger was laterally transferred to the position of facility captain at SCC. Bollinger had been disciplined in May 1999, when an adverse action was taken against him, which resulted in a 15 day suspension. According to the notice of adverse action, in December 1998, Bollinger gave a witness fifty dollars in cash immediately following an investigative interview and in January 1999, the Nevada Highway Patrol stopped him for driving a vehicle while under the influence of alcohol.

Shortly after Bollinger was appointed as facility captain, the California Correctional Supervisors Organization (CCSO) began to challenge Bollinger’s appointment. In April 2002, Kramer, the warden at SCC, received a letter from the CCSO which contained language that appeared to be taken from Bollinger’s notice of adverse action. Kramer asked Lieutenant Micheels to conduct an inquiry as a fact finder into whether the part of the adverse action quoted was confidential information. Bollinger also was advised that copies of portions of his confidential personnel file, including his notice of adverse action, resume and application for the facility captain position, had been stolen or otherwise improperly released and were being distributed within the institution.

In late July or early August 2002, Shipman anonymously received in his SCC mail slot a manila envelope which contained a copy of Bollinger’s 1999 notice of adverse action, as well as his job application and resume. Shipman opened the envelope and examined the contents. According to Bollinger, the documents contained confidential personal information such as his address, telephone number, social security number and other personal identifying information. Shipman admitted the documents “probably” included Bollinger’s social security number, his home address and his telephone number, as well as other personal information regarding his work history.² As a peace officer, Shipman “felt compelled to do something with this information,” but he did not want to give it to the CDCR because he believed they had swept it under the rug.

2 Before he received the documents, Shipman had heard rumors that Bollinger had an adverse action and had misrepresented his work experience.

At the time, Shipman was on the board of directors of the California Correctional Peace Officers Association (CCPOA), which is a separate organization from the CDCR, and also a job steward. Within a few days, Shipman spoke to co-worker Ralph Storm, a correctional officer who was not within Shipman’s reporting structure, about the Bollinger documents. Storm was president of the CCPOA chapter at SCC and on the board of directors with Shipman. Storm asked Shipman for a copy of the documents. According to Shipman, Storm told him he wanted a copy of the notice of adverse action so he could use it as comparable evidence when union members received discipline in the future.³ Without redacting anything or asking Storm to give the documents to anyone else, Shipman gave the documents to Storm.

3 When Shipman told Storm he also had Bollinger’s resume, Storm asked for a copy of it too.

Sometime later, Shipman spoke with CCPOA attorney Jeff Diamond about the Bollinger documents. Diamond recommended Shipman give the documents to Chuck Alexander, who was a CCPOA executive vice-president for the CDCR, so Alexander could give the documents to the union’s legal department. Alexander was a correctional officer at Pelican Bay and not within Shipman’s reporting structure.

In September 2002, Shipman attended a union convention in San Diego. Shipman told Storm he thought he would give Alexander the Bollinger documents at the convention, but he forgot to bring them. Storm had the copy Shipman gave him, so he gave it to Shipman. Shipman believed the CCPOA legal department should see the documents, so he gave Alexander Storm’s copy of the documents at the convention. When he gave Alexander the Bollinger documents, Shipman told Alexander he might want to look at them and if he felt he should give them to the union’s legal department, he should do so. After the convention, Shipman never had another conversation with Alexander about the Bollinger documents. When he returned from San Diego, Shipman gave Storm his copy of the Bollinger documents. Shipman never followed up with the union to find out whether anything had been done with the documents.

The only people Shipman ever gave the Bollinger documents to were Storm and Alexander. Shipman never transmitted the documents to a governmental entity or law enforcement agency, nor did he give them to a direct supervisor or commanding officer. The only people Shipman spoke to about the documents were Storm, Alexander, union attorney Diamond, the investigators and persons involved in the Office of the Inspector General (OIG) investigation and Shipman’s hearing in front of the State Personnel Board (SPB). Shipman did not have any information that the Bollinger documents were transmitted to the defendants for investigation. He believed, however, the documents would have been given to those who interviewed Bollinger for a correctional counselor position at SCC, and that although they knew about the adverse action, they hired him anyway.

B. The Investigation Into the Distribution of the Bollinger Documents

Sometime in 2002, Bollinger informed Prosper, who was the Chief Deputy Warden at SCC, that he had heard from Lieutenant Julie Chavez that his personal information was being distributed among employees. According to Bollinger, Kramer also was present during this conversation, and when he informed Kramer and Prosper the source of his information was Chavez, they laughed because they did not think Chavez was credible. Kramer and Prosper assured Bollinger more than once that the sharing of his confidential information at SCC was not illegal. Chavez also spoke directly to Prosper about the matter and prepared a memorandum on the issue, which was dated July 19, 2002. Sometime after Bollinger told Prosper what Chavez said, Storm approached Prosper and informed her he had been in possession of an adverse action regarding Bollinger, as well as his resume and job application. Storm advised Prosper he received the documents from Shipman. Prosper reported this information to Kramer.

In December 2002, Micheels, who had been conducting the fact finding inquiry into the possible disclosure of Bollinger’s notice of adverse action to the CCSO, issued a memorandum to Prosper which stated that the information the CCSO referred to was accurate and true, and was a public record which could have been accessed through the State Personnel Board. Micheels further concluded that “the probability of determining how or who actually revealed the information [was] unattainable.”

C. The OIG Investigation

In November 2002, Bollinger requested the OIG investigate the improper possession and dissemination of his confidential documents.⁴ Thereafter, OIG undertook an investigation as to how the documents had been taken and disseminated. Kramer claimed he also reported the matter to the OIG after he learned from Storm in January 2003 that Storm had been in possession of the Bollinger documents, which he had received from Shipman. According to Kramer, he was concerned that documents containing confidential, personal information regarding a peace officer were being distributed to unauthorized persons.

4 According to Kramer and Prosper, the OIG is a law enforcement investigation unit based out of the Governor’s Office that conducts independent investigations.

Neither Kramer nor Prosper had any role in directing the OIG investigation. They did not tell anyone how to conduct the investigation, who should be the subject of the investigation or what findings the investigator should make. Prosper never received a copy of the OIG’s findings, since she left SCC at the beginning of September 2003. Prosper, therefore, had no role in deciding what type of adverse action should be taken against Shipman or any other employees who possessed the Bollinger documents, nor did she have any involvement in the issuance of amended notices of adverse action to Shipman. Shipman does not have any information that either Prosper or Bollinger was involved in his termination or in the amendment of the adverse actions.

Shipman did not learn until around March or April of 2003 that Storm had shown the documents to Chavez, when Storm warned Shipman he might be noticed for an investigatory interview. Storm advised Shipman that he told Prosper he obtained the Bollinger documents from Shipman. When Shipman asked Storm why he told Prosper this, Storm responded he was not going to lie and he had to tell Prosper because he had shown the documents to Chavez. Shipman did not know why Storm would show the documents to anyone outside the union because the documents were confidential to them as a union issue.

D. Shipman’s Treatment During the OIG Investigation

During the summer of 2003, Shipman submitted a schedule request to his supervisor to take some Fridays off using vacation time. Although Shipman’s supervisor approved the request, Bollinger denied it and told Shipman he could try to “flex it off,” but he couldn’t use vacation time. In a declaration, Bollinger explained the request was denied because allowing Shipman to take multiple three and four day weekends would have created manpower difficulties and conflicted with institution needs and minimum staffing requirements. Bollinger claimed the decision was made by a managerial committee and not solely by him. Kramer and Prosper explained that they did not deny Shipman any shift modification request, and because the union contract covered the issue, it would have been dealt with by a supervisor. Shipman filed a union grievance and ultimately was able to receive some of the time off. Shipman thought “they” came up with “some kind of a policy to get vacation,” but he wasn’t sure.

On August 14, 2003, Captain Ty Rawlinson learned that Shipman had failed to respond to an alarm involving a fight among several prisoners. Rawlinson, who was responsible for security and safety at SCC, was concerned about Shipman’s inaction, so he requested his supervisor, Associate Warden Ivan Clay, investigate the matter. Clay advised Prosper about Rawlinson’s complaint. Prosper then requested an investigation be conducted because the information Clay conveyed suggested Shipman might have violated departmental policies. Thereafter a Category II investigation was conducted by someone unaffiliated with SCC. Prosper felt referral for a Category II investigation was appropriate because she knew Shipman was being looked at by the OIG’s office and she wanted to make sure he was afforded every due process in his capacity as a CCPOA representative. According to departmental policy, an outside investigatory unit was always brought in to conduct investigations involving union representatives so the employee being investigated could not accuse the institution of bias, which automatically made the investigation a Category II investigation. At no time did either Kramer or Prosper instruct anyone that specific findings were to be made regarding the investigation and they were not involved in the investigative process. Shipman was informed in the spring of 2004 that the Category II investigation resulted in a finding that the allegation was not sustained. Shipman has no information that Bollinger had any involvement in the Category II investigation and Bollinger had no such involvement.

E. The OIG’s Findings and Disciplinary Action Taken Against Shipman

In October 2003, Kramer received a copy of the OIG’s Administrative Investigative Report. The OIG sustained the allegations that Shipman gave Bollinger’s confidential documents to unauthorized persons, namely Storm, and that Shipman violated Penal Code section 5029, which prohibits the unauthorized removal from a state prison of documents containing personal information relating to CDCR employees, when Shipman took Bollinger’s personal employment documents to an office supply store in Turlock and made copies of them. After receiving the report, Kramer discussed it with the CDCR Associate Director of Personnel, CDCR Legal and the Office of Personnel Management (OPB) to determine what disciplinary action to take against Shipman. Based on the OIG’s findings, they decided to terminate Shipman due to the serious nature of the offense as he had shared confidential personal peace officer information with others. This decision was based in part on the understanding that Shipman had violated Penal Code section 5029. When Kramer recommended Shipman’s termination, he did not know that Shipman had ever filed a whistle blower complaint with anyone or understand that Shipman had ever made such a complaint.

On January 8, 2004, Kramer issued a Notice of Adverse Action to Shipman which stated he was being terminated effective January 21, 2004. In the adverse action, Kramer explained Shipman was being terminated for violations of the following subdivisions of Government Code section 19572: (d) inexcusable neglect of duty; (m) discourteous treatment; (o) willful disobedience; and (t) other failure of good behavior. Kramer further explained that he was being terminated for violating California Code of Regulations, title 15, section 3391 – employee conduct, and Penal Code sections 832.7, subdivision (a), 832.8, and 5029, among other things. On January 16, 2004, Kramer issued an Amended Notice of Adverse Action to Shipman, which stated his termination was effective March 2, 2004. Kramer issued the amended notice because a supplemental investigation needed to be conducted regarding Alexander’s appeal of the OIG’s findings.

Sometime after January 16, 2004, Kramer was advised that while Penal Code section 5029 had been enacted at the time Shipman distributed the documents to Storm and Alexander, the statute did not go into effect until after the distribution. Because of this, on June 9, 2004, Kramer issued a Second Amended Notice of Adverse Action to Shipman which changed his disciplinary action from termination to a 30-day suspension. As a result, Shipman returned to work after June 14, 2004. On April 12, 2005, Kramer issued a Third Amended Notice of Adverse Action to Shipman because it had been determined that Shipman violated additional Civil Code sections.⁵

5 The Second and Third Amended Notices of Adverse Action continued to list Penal Code section 5029 as one of the code sections Shipman violated.

F. Other Alleged Retaliatory Acts

In the first part of 2005, Warden Steven Ornowski placed Rawlinson over Shipman’s unit as facility captain. Shipman does not have any information that Ornowski did this to retaliate against him. Rawlinson applied for the position because he had been advised he needed additional experience to become an associate warden. Although Shipman believes Rawlinson was put into the facility captain position so he could gain necessary experience to became an associate warden, he was concerned about Rawlinson supervising him because Rawlinson had placed him under investigation in the past and he felt if Rawlinson “got a chance to take another shot” at him, he would. When Shipman found out Rawlinson was coming, he called his attorney, who wrote Ornowski a letter about it. Since Rawlinson became facility captain over Shipman’s unit, however, Shipman has not had any action taken against him that he felt was hostile. In addition, Shipman has not had any trouble with his schedule since he returned to work following his suspension.

Shipman claimed he was ostracized, as rumors were going around that he broke into Bollinger’s office and stole stuff off Bollinger’s computer and desk. Shipman has no information, however, that Kramer, Prosper or Bollinger ever said Shipman had broken into Bollinger’s office.

It is SCC’s policy to issue a memo that typically contains a picture of former employees who are either terminated or no longer welcome at the facility, which is done for security and safety purposes. Such memos are usually kept at the front gate so the officers working the gates will know who is no longer authorized to enter the facility. After Shipman was terminated, his picture from his identification card was posted at the entrances of SCC stating he was not allowed on the grounds. Shipman explained the employees “jokingly refer to [the picture] as a wanted poster because that’s what it looks like,” and “everybody” knows the picture means someone has been fired. To Shipman’s knowledge, the picture was posted during the 30-day period he was off work, but was down once he returned, and the only derogatory thing on the poster was that it said he was not allowed on the grounds. Shipman was concerned others thought he was “either a dope fiend or child molester,” since employees usually didn’t get fired unless they were caught with drugs or had done “something bad.”

Shipman also claimed he was denied administrative support, by which he meant he had problems reinstating his insurance when he came back from his suspension, as well as with the restoration of sick, vacation and holiday time. These issues were resolved within a couple of months of his return to work, although it required the assistance of his attorney. Shipman does not have any information that Kramer, Prosper or Bollinger were involved in any manner in these issues.

G. The Claimed Defamatory Statements

Shipman does not know any statements Bollinger made about his professionalism, skill, honesty, integrity or qualification for the job. When Shipman was asked in his deposition what specific statements he heard Bollinger make about him which impugned his character, Shipman responded he heard from other counselors that they didn’t think he was looking out for them. While these counselors didn’t indicate Bollinger made any such statements about Shipman, Shipman believed the counselors heard that from Bollinger. Shipman encouraged the counselors to come to him directly because “[t]hey’re trying to divide us as a union.” Shipman also stated his supervisor would say things to him “like I heard you’re out in the parking lot or I heard you were there,” which Shipman knew wasn’t coming from the counselor because he had not heard anything like that before Bollinger became captain.

The only statement Shipman ever “heard” Kramer make about his character, honesty and integrity was indirectly relayed to Shipman by SCC Employee Relations Officer (ERO) Rodney Kirkland on May 15, 2004. Kirkland said Kramer told him he did not think Shipman was being honest about where he got the Bollinger documents. Shipman never actually heard Kramer say this to anyone. Shipman understands Kramer and Kirkland were discussing the issue in conjunction with Shipman’s penalty or adverse action. Shipman is not aware that Kramer made any statements regarding his professionalism, skill or qualification for the job. Kramer claimed he never harbored any ill will or hatred toward Shipman.

When the decision was made to terminate Shipman, Kramer advised Kirkland about it. As the ERO, Kirkland’s responsibilities pertained to legal labor relations and his position is considered highly confidential. Kirkland also assisted in creating and reviewing adverse employment actions. After receiving a copy of the OIG report, Kramer and Kirkland reviewed it to determine whether further investigation was required. In doing so, they noticed inconsistencies in testimony regarding how Shipman received the Bollinger documents. Kramer understood that Shipman initially had stated he received the Bollinger documents from a friend, but by the end of the investigation he stated he received them anonymously. Kramer spoke with Kirkland and legal counsel at various times about the inconsistencies, and did not feel Shipman was being honest about from whom he had received the documents. Based on Kramer’s concern, they requested further investigation be conducted.

This investigation revealed two other employees were in possession of the Bollinger documents. According to Kramer, Shipman received a harsher penalty than the other employees for the following reasons: (1) Shipman constantly changed his story regarding from whom he received the Bollinger documents; (2) Shipman admitted he originally received the documents and took them off prison grounds to make copies of them; (3) Shipman brought the documents back on prison grounds and gave a copy to other CDCR staff; (4) Shipman provided a copy of the documents to Alexander in San Diego, although it was still disputed whether Storm actually took the documents to San Diego; (5) Shipman admitted providing copies to Storm and Alexander; (6) one of the other employees who was disciplined informed the SCC administrative staff that he had the documents while Shipman did not; and (7) the other employees did not provide copies to unauthorized individuals.

Shipman claims Kramer told Diamond and Mark Veatch he was “dishonest.” In mid-2004, shortly before a SPB hearing on Shipman’s appeal of his 30-day suspension, Kramer met with Diamond (Shipman’s CCPOA attorney) and Veatch (Shipman’s CCPOA field representative) to discuss Shipman’s adverse action in an attempt to settle the matter and avoid the need to commence the impending SPB proceeding. Kramer understood the discussions during that meeting were confidential and related to settlement negotiations. Diamond, however, stated he and Veatch told Kramer nothing said in the meeting would be confidential if they knew of, or had independent sources for, the information he might discuss, and Shipman could and would use any statements he made. During the meeting, Diamond and Veatch proposed that Shipman be issued a letter either of reprimand or instruction. Kramer responded that in his opinion, Shipman’s version of how he obtained the Bollinger documents was not as credible as the other parties’ versions.⁶ The meeting ended without a resolution, as they were unable to agree on an appropriate disciplinary action. According to Kramer, they were considering charging Shipman with dishonesty and in that context, he used the word “dishonest.”

6 According to Diamond, Kramer said Shipman was dishonest about how he had come to acquire the Bollinger documents.

H. Shipman’s Government Claim and Appeal

On July 6, 2004, Shipman filed a government claim with the State of California Board of Control. Nowhere in the government claim does he name Prosper as a person who took action against him that caused or contributed to his injuries, losses or damages. Although the claim stated it was based in part on the legal theory of defamation, nowhere in the claim does he state what defamatory statements were made about him or who made such statements.

Shipman appealed the disciplinary action to the State Personnel Board (SPB). On January 18, 2005, Shipman filed a whistle blower retaliation complaint with the SPB. The two matters, which were consolidated for hearing before an SPB administrative law judge (ALJ), were heard on August 31 and September 1, 2005. On December 12, 2005, the ALJ issued a written proposed decision in which she made findings of fact. In the decision, the ALJ granted the CDCR’s motion to dismiss the whistle blower retaliation complaint, finding that Shipman’s disclosures of the Bollinger documents were not protected disclosures under the WPA. The ALJ also sustained Bollinger’s 30 day suspension. On December 20, 2005, the SPB adopted the ALJ’s findings of fact, determination of the issues, and proposed decision as its decision.

II. This Lawsuit

Shipman filed a complaint in this action on January 20, 2005, and a first amended complaint in March 2005. The first amended complaint alleges five causes of action: (1) violation of the California Whistleblower Protection Act, Government Code sections 8547, et. seq. against all defendants; (2) violation of Labor Code section 1102.5 against the CDCR only; (3) violation of federally protected rights under 42 United States Code section 1983 against Kramer, Bollinger and Prosper; (4) defamation against Kramer and Bollinger; and (5) intentional infliction of emotional distress against Kramer, Bollinger and Prosper.

In November 2005, Bollinger and the CDCR defendants filed separate motions for summary judgment. Bollinger’s motion was brought on the following grounds: (1) the WPA claim fails because Shipman did not report improper government activity as defined in Government Code section 8547.2, subdivision (b); (2) the Labor Code claim fails because Bollinger did not subject Shipman to any adverse employment action or acts of retaliation; (3) the remaining claims fail because Shipman admits he has no facts to support them; and (4) Shipman’s exclusive remedy for his claims of defamation and intentional infliction of emotional distress is a workers’ compensation claim.

The CDCR defendants’ motion was brought on the following grounds: (1) the WPA claim fails because (a) Shipman did not exhaust his administrative and judicial remedies, (b) Shipman failed to file a tort claim naming Prosper, (c) Shipman did not make a protected disclosure, and (d) there is no evidence any of the defendants retaliated against Shipman for disclosing improper governmental activities; (2) the Labor Code claim fails because Shipman is unable to establish a prima facie case and the CDCR had legitimate, non-retaliatory reasons for its actions; (3) the 42 United States Code section 1983 action fails because Shipman is unable to show Kramer or Prosper violated his free speech or due process rights; (4) the defamation claim fails because Shipman failed to file a proper tort claim for defamation and is unable to prove a defamatory statement was made; and (5) the intentional infliction of emotional distress claim fails because the conduct was not outrageous, the CDCR is immune from tort liability, and the claim is barred by the exclusive remedy of workers’ compensation.

Shipman opposed both motions. Following oral argument, the trial court granted both motions.

DISCUSSION

I. Standard of Review

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal. App.4th 915, 925.) The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, sub d. (c).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.)

II. Evidentiary Rulings

As a threshold matter, we address Shipman’s argument that the trial court’s evidentiary rulings were an abuse of discretion. Shipman asserts “[t]he trial court abused its discretion in sustaining respondents’ objections to certain paragraphs of Shipman’s declaration in support of Shipman’s opposition” to the summary judgment motions, which objections “were hearsay, conclusory without foundation, and violation of the best evidence rule.” Shipman also contends the trial court abused its discretion in sustaining “respondents’ objection to certain pages of Shipman’s deposition on the grounds of hearsay.”

The record shows that the CDCR defendants filed written objections to 10 paragraphs of Shipman’s declaration and two excerpts from Shipman’s deposition based on various grounds, including hearsay, speculation, “conclusory without foundation,” the best evidence rule, and that the statements contradict prior deposition testimony, all of which the trial court sustained. Without citing us to the specific rulings he is challenging or evidence he contends was wrongly excluded, Shipman generally argues the statements in his declaration and deposition are not inadmissible hearsay, are not without foundation since the declaration is based on his personal knowledge, and those statements relating to the contents of Bollinger’s documents are admissible to prove the documents’ contents.

The CDCR defendants assert that Shipman has waived appellate review of this issue because he fails to identify the particular rulings he is challenging and on what specific basis. We agree. An appellant bears “the burden of showing error,” and it is incumbent on him “to make it affirmatively appear that error was committed.” (County Nat. Bank etc. Co. v. Sheppard (1955) 136 Cal.App.2d 205, 223.) This means that Shipman was required to plainly direct us to the points in the record where he contends error occurred. (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.) “‘It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.’” (Duarte v. Chino Community Hospital (1999) 72 Cal. App.4th 849, 856 ; Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal. App.3d 1203, 1205.) If no citation is furnished, the court may treat the point as waived. (9 Witkin, Cal. Procedure (4th ed. 1997) § 589, p. 624; Guthrey v. State of California (1998) 63 Cal. App.4th 1108, 1115; Mansell v. Board of Administration (1994) 30 Cal. App.4th 539, 545; see People v. Hyatt (1971) 18 Cal. App.3d 618, 624 [where brief fails to specify the portions of the record supporting the appellant’s factual assertions, the record is presumed to support the trial court’s rulings].)

Once the challenged trial court action has been identified clearly, the appellant must demonstrate that it violated the governing law. It is not enough to simply point at a ruling and assert that it was wrong. Rather, “‘[e]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’” (McComber v. Wells (1999) 72 Cal. App.4th 512, 522-523, quoting 9 Witkin, Cal. Procedure, supra, § 594, p. 627.)

Here, Shipman fails to identify clearly the trial court actions he is challenging on appeal, which constitutes a waiver of that issue on appeal. As the CDCR defendants point out, they raised numerous distinct objections to Shipman’s deposition and declaration. Without Shipman pointing out precisely the rulings he is challenging, there is no basis to determine whether the trial court abused its discretion as to each objection or whether Shipman was prejudiced by the purportedly erroneous rulings. Accordingly, we reject any contention Shipman may be making that the trial court erred in its evidentiary rulings.

III. The WPA Claim

The California Whistle blower Protection Act (Gov. Code, § 8547 et seq.)⁷ allows a whistle blower who is penalized for making a protected disclosure of wrongdoing to bring a civil action for damages after filing a complaint with the SPB and “the [SPB] has issued, or failed to issue, findings ….” (§§ 8547.3, 8547.8, sub d. (c).)⁸

7 Subsequent statutory references are to the Government Code unless otherwise noted.

8 The SPB is a statewide agency entrusted by the California Constitution to administer the civil service system. (Cal. Const., art. VII, § 3; see Alameida v. State Personnel Bd. (2004) 120 Cal. App.4th 46, 52-53; Gonzalez v. State Personnel Bd. (1995) 33 Cal. App.4th 422, 428.)

In his WPA claim, Shipman alleges he made a protected disclosure of improper governmental activities by Bollinger when he turned over the Bollinger documents, and after making those disclosures, he was retaliated against by being subjected to an arbitrary and capricious OIG investigation, being harassed and threatened on the job, being terminated for arbitrary and capricious reasons, and being suspended for 30 days without pay. The trial court granted summary judgment on this claim on the grounds that Shipman failed to exhaust his administrative and judicial remedies, he failed to name Prosper in his government tort claim, no evidence exists to show he made a protected disclosure under the WPA, and Kramer, Prosper and Bollinger had legitimate, non-retaliatory reasons for their actions. On appeal, Shipman attacks each of these grounds, arguing the trial court erred in finding in respondents’ favor on each one of them. As we shall explain, we conclude that Shipman has failed to exhaust his judicial remedies and therefore his WPA claim is barred by the adverse decision he received in the hearing before the SPB.⁹

9 We note that the issue of whether, under the WPA, a state employee may bring a civil action after suffering an adverse decision by the SPB without first seeking a writ of administrative mandamus is currently before the California Supreme Court in two cases: State Board of Chiropractic Examiners v. Superior Court, review granted June 27, 2007, S151705, and Ramirez v. Department of Health Services, review granted June 27, 2007, S152195.

The WPA embodies a strong public policy to deter and punish those who retaliate against public employees for reporting wrongdoing: “The Legislature finds and declares that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution. The Legislature further finds and declares that public servants best serve the citizenry when they can be candid and honest without reservation in conducting the people’s business.” (§ 8547.1.)

The WPA prohibits a state employee from “directly or indirectly us[ing] or attempt[ing] to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten coerce, or command any person for the purpose of interfering with the rights conferred pursuant to this article.” (§ 8547.3, sub d. (a).) An employee who violates this subdivision may be liable in an action for civil damages brought against the employee by the offended party. (§ 8547.3, sub d. (c).)

A state employee who is subject to retaliation as prohibited by section 8547.3, may file a written complaint with his or her supervisor, manager, or the appointing power, as well as with the SPB. (§ 8547.8, sub d. (a).) Any person who intentionally retaliates against a state employee “for having made a protected disclosure” is subject to fines, imprisonment, and disciplinary proceedings. (§ 8547.8, sub d. (b).) “In addition to all other penalties provided by law,” anyone who intentionally retaliates against a state employee “for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party.” (§ 8547.8, sub d. (c).) An injured employee also may recover punitive damages where the offending party’s acts are malicious, and also may recover reasonable attorney fees. (Ibid.) “However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the State Personnel Board pursuant to subdivision (a), and the board has issued, or failed to issue, findings pursuant to Section 19683.” (§ 8547.8, subd. (c).)

Section 19683, subdivision (a) directs the SPB to “initiate a hearing or investigation of a written complaint of reprisal or retaliation as prohibited by Section 8547.3 within 10 working days of its submission. The executive officer shall complete findings of the hearing or investigation within 60 working days thereafter, and shall provide a copy of the findings to the complaining state employee … and to the appropriate supervisor, manager, employee, or appointing authority. When the allegations contained in a complaint of reprisal or retaliation are the same as, or similar to, those contained in another appeal, the executive officer may consolidate the appeals into the most appropriate format. In these cases, the time limits in this subdivision shall not apply.” Pursuant to section 19683, subdivision (b), if the executive officer finds the complainant was retaliated against for engaging in protected whistle blower activities, the supervisor, manager, employee, or appointing power may request a hearing before the SPB. If the SPB determines a violation of section 8547.3 occurred after a hearing, or if no hearing is requested and the executive officer’s findings conclude improper activity occurred, the SPB “may order any appropriate relief, including, but not limited to, reinstatement, back pay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the state employee … who was the subject of the alleged acts of misconduct prohibited by Section 8547.3.” (§ 19683, sub d. (c).)

The CDCR defendants assert that Shipman failed to exhaust his administrative remedies before filing this action because although he filed a whistle blower complaint with the SPB two days before filing the complaint, no findings had been issued when the complaint was filed. Shipman responds that since section 8547.8, subdivision (c) provides that a civil action may be filed after a complaint is filed with the SPB and the SPB has failed to issue findings, the WPA requires nothing more of him than to file a complaint with the SPB before filing a civil action. Whatever the statute means by the words “failed to issue findings,” we do not believe it means that a complainant can file a complaint with the SPB and then two days later file a civil action without at least giving the SPB the time specified in section 19683, subdivision (a) to issue findings on the complaint. (See, e.g., California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1156 [holding that if the SPB fails to render a decision following a hearing or investigation of a state employee’s appeal from a departmental disciplinary action within the time specified in section 18671.1, an employee who has not waived the time limit may seek a writ of mandate either against the SPB to enforce compliance or directly against the employing power to compel reversal of the adverse action].)

We need not decide, however, whether Shipman failed to exhaust his administrative remedies by filing the complaint before he received the SPB’s findings because, even if he is correct in his position that he exhausted his administrative remedies, his WPA claim is barred because he ultimately received an adverse decision on this claim in the SPB proceedings which he failed to challenge by a writ of administrative mandamus. Potential plaintiffs ignore adverse administrative findings at their peril. As our Supreme Court has explained, it held in Westlake Community Hospital v. Superior Court (1976) 17 Cal.3d 465, “that unless a party to a quasi-judicial proceeding challenges the agency’s adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70 (Johnson).) “This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. [Citation.] Exhaustion of administrative remedies is ‘a jurisdictional prerequisite to resort to the courts.’ [Citation.] Exhaustion of judicial remedies, on the other hand, is necessary to avoid giving binding ‘effect to the administrative agency’s decision, because that decision has achieved finality due to the aggrieved party’s failure to pursue the exclusive judicial remedy for reviewing administrative action.’” (Id. at p. 70, italics in original.) The Court reasoned that “[r]efusing to give binding effect to the findings of administrative agencies in quasi-judicial proceedings would . . . undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation.” (Id. at p. 72.)

Shipman’s failure to pursue his judicial remedy and challenge the SPB’s rejection of his whistle blower complaint resulted in the finality of that decision, involving the application of the doctrine of collateral estoppel. (Page v. Los Angeles County Probation Dept. (2004) 123 Cal. App.4th 1135, 1142-1143.) “Johnson also ensures that employees who choose to utilize internal procedures are not given a second ‘bite of the procedural apple.’” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1090-1091.) The requirements for the application of the doctrine of collateral estoppel (or issue preclusion) are: (1) the issue sought to be precluded from relitigation is identical to an issue decided in a former proceeding; (2) the issue was actually litigated in the former proceeding; (3) the issue was necessarily decided in the former proceeding; (4) the decision in the former proceeding is final and on the merits; and (5) the party against whom preclusion is sought was a party (or in privity with a party) to the former proceedings. (Castillo v. City of Los Angeles (2001) 92 Cal. App.4th 477, 481; Knickerbocker v. City of Stockton (1988) 199 Cal. App.3d 235, 242 (Knickerbocker).) Collateral estoppel also bars re-litigation of issues resolved in a prior administrative hearing by an agency acting in a judicial capacity. (Id. at p. 242.)

The SPB is an administrative agency endowed by the California Constitution with quasi-judicial powers.¹⁰ (Larson, supra, 28 Cal. App.4th at p. 273.) Shipman’s complaint filed with the SPB alleged he was retaliated against by being terminated, which was later reduced to a 30-day suspension, after he submitted information to his union about Bollinger’s unlawful activities, and requested remedies in the form of monetary damages for physical and emotional pain, medical damages, impaired earning capacity and loss of reputation. This complaint was consolidated with Shipman’s appeal of his suspension. A hearing was held before an administrative law judge (ALJ), at which evidence was received and credibility determinations made.

10 Shipman contends the SPB does not act in a quasi-judicial capacity when investigating and hearing whistle blower retaliation complaints. Even if certain proceedings under the WPA could be characterized as non-judicial, however, the hearing Shipman received certainly was quasi-judicial. While an administrative hearing possessing all the attributes of a judicial proceeding certainly satisfies the quasi-judicial standard, as counsel rightly observes (Imen v. Glassford (1988) 201 Cal. App.3d 898, 906-907), an administrative hearing possessing less than all the attributes of a judicial proceeding may also be sufficiently quasi-judicial for collateral estoppel purposes. (People v. Sims (1982) 32 Cal.3d 468, 480-481.) It is well established that SPB hearings like the one Shipman received are quasi-judicial proceedings. (See Alameida v. State Personnel Bd., supra, 120 Cal. App.4th at pp. 52-53; Larson v. State Personnel Bd. (1994) 28 Cal. App.4th 265, 273 (Larson); see also, California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at pp. 1152-1153.) “Under its constitutional grant, the Board is empowered to review disciplinary actions and acts in an adjudicatory capacity. As such, the Board acts much as a trial court would in an ordinary judicial proceeding. Thus, the Board makes factual findings and exercises discretion on matters within its jurisdiction.” (Larson, supra, 28 Cal. App.4th at p. 273.)

Following the hearing, the ALJ issued written findings of fact. The ALJ dismissed the whistle blower retaliation complaint, finding that Shipman’s disclosure of Bollinger’s notice of adverse action was not a protected disclosure within the meaning of section 8547.2, subdivision (d), which defines the term “protected disclosure,” because Shipman had no knowledge of any further improper governmental activity on Bollinger’s part other than what was detailed in the notice of adverse action, and although Shipman’s stated intent was to share the information with the union’s legal office, he instead shared it with the local union chapter president, who thought it could be relevant to use as a comparable on a DUI charge, and to another union member at the convention. The ALJ concluded that for Shipman to expect his union to confront the CDCR with the notice of adverse action defies logic, since the CDCR obviously was aware of Bollinger’s conduct and Bollinger could not be disciplined again for the same acts. The ALJ further found the release of Bollinger’s resume and application was not a protected disclosure because Shipman should have understood they contained confidential information. The SPB considered the ALJ’s findings of fact, determination of issues and proposed decision, which it adopted as its decision. Shipman did not petition for rehearing of the decision, as provided in section 19586, so the SPB’s decision became final 30 days after the decision was served on the parties. (Cal. Code Regs., tit. 2, § 51.6.)

Since Shipman failed to set aside the SPB’s adverse ruling on Shipman’s WPA claim by way of writ of administrative mandamus, the doctrine of collateral estoppel, or issue preclusion, applies and the SPB’s decision bars his first cause of action based on the WPA. The issues in both proceedings are identical, i.e., whether Shipman was retaliated against for making a protected disclosure, the issue necessarily was decided in the SPB proceeding, the SPB’s decision is now final, and Shipman was a party to those proceedings.

Shipman contends he was not required to attempt to set aside the SPB’s decision through a writ of administrative mandamus because such a writ is available only in cases where a hearing is required by law. Code of Civil Procedure section 1094.5 provides: “Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury.”

Here, a hearing on Shipman’s WPA complaint was conducted before an ALJ based on evidence presented at the hearing and in the exercise of the ALJ’s fact finding powers. Shipman contends a writ of administrative mandamus to review the SPB’s decision is not available to him because under section 19683, subdivision (a), upon receiving a complaint of retaliation, the SPB must initiate either a hearing or an investigation (§ 19683, sub d. (a)), and therefore he reasons that no hearing was “required” by law. We disagree.

First, “[a] trial-type hearing is not necessary to satisfy the hearing requirement of section 1094.5 of the Code of Civil Procedure, so long as the agency is required to accept and consider evidence before making its decision.” (Las Virgenes Educators Assn. v. Las Virgenes Unified School Dist. (2001) 86 Cal. App.4th 1, 6-7.) Purely documentary proceedings can satisfy the hearing requirement of Code of Civil Procedure section 1094.5 “so long as the agency is required by law to accept and consider evidence from interested parties before making its decision.” (Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal. App.4th 1383, 1391-1392 (Old Trees).)

Second, assuming the executive officer elects to perform an investigation into the complaint, the SPB’s discretion over whether to hold a hearing was circumscribed carefully. Under the rules applicable when Shipman’s complaint was before the SPB,¹¹ Shipman was required to file a written statement under penalty of perjury of the whistle blower report and the alleged retaliation therefore, with supporting documentation and a list of witnesses. (Former rule 56.1, sub d. (d).) The CDCR was required to file a written response with similar detail, and Shipman could file a written reply. (Former rule 56.2, subds. (e), (f).) Where, as here, a whistle blower retaliation complaint was submitted and there was also an appeal from an adverse action, the two matters could be consolidated, and each individually named respondent in the retaliation complaint had the right to participate in the consolidated hearing. (Former rule 56.7, sub d. (a).) Otherwise, the SPB appeals division could continue investigation of the complaint after the responses, “with or without a hearing.” (Former rule 56.2, sub d. (g).) Within 60 days, unless the time was tolled or waived, the executive officer must issue a notice of findings. (Former rule 56.2, sub d. (i).) If the executive officer concluded the complainant failed to prove retaliation, the notice of findings must address specifically each of the complaint’s allegations unless the findings address jurisdictional or procedural matters. (Former rule 56.2, sub d. (j).) If questions of fact remained, the executive officer could “assign the case to an evidentiary hearing” before an administrative law judge. (Former rule 56.2, sub d. (l).)

11 On August 14, 2002, the SPB adopted regulations governing whistle blower complaints, effective immediately. Those regulations were amended substantially in March 2006. We will cite to the 2002 regulations, which governed the SPB proceedings at issue here, as “former rule ---” to distinguish them from current provisions of the California Code of Regulations.

If the executive officer finds retaliation occurred, the SPB is required to hold a hearing on the findings on request of the person or appointing power found to have retaliated against the complaining employee. (§ 19683, subds. (b), (c).) If the executive officer concludes no retaliation occurred, under the then applicable rules, the complainant could file a petition for hearing before the SPB. (Former rule 56.3, sub d. (a).) In reviewing the petition, the SPB “shall determine whether the Notice of Findings conforms to the requirements of [rule] 56.3(c), and whether the Notice of Findings is supported by substantial evidence.” (Former rule 56.3, sub d. (e).) If the petition is denied, the SPB “shall issue a Decision that adopts the findings of the Executive Officer as its own decision in the matter.” (Former rule 56.3, sub d. (f).) If the petition is granted, the SPB “shall issue a resolution rejecting the findings of the Executive Officer and assign the matter to an administrative law judge, who shall conduct an evidentiary hearing in accordance with those statutes and regulations governing the conduct of Board evidentiary hearings, and issue a Proposed Decision for the Board’s review and consideration.” (Former rule 56.3, sub d. (g).)

Under these rules, the SPB’s discretion whether to grant a hearing was not as broad as Shipman implies. A hearing could be granted only if the SPB determined substantial evidence did not support the executive officer’s findings or the findings were procedurally defective. (Former rule 56.3, sub d. (e).) If substantial evidence supported the findings and they adequately addressed the issues, the SPB would adopt the notice of findings “as its own decision in the matter.” (Former rule 56.3, subd. (f).) Otherwise, the SPB had to reject the notice of findings and assign the case to an ALJ for a new hearing, which could itself lead to an SPB decision. (Former rule 56.3, subds. (g)-(i).) Thus, the documentary hearing held before the executive officer, if challenged by a petition for a hearing by the SPB, would be reviewed and either adopted by the SPB or vacated and the matter re-examined by an ALJ. All in all, the SPB forum provided a facially fair and thorough hearing procedure “required by law” to evaluate retaliation claims.

Third, the fact the SPB had discretion whether to grant a hearing is a red herring. In People ex rel. Cal. Regional Wat. Quality Control Bd. v. Barry (1987) 194 Cal. App.3d 158, a state board declined to grant a petition for review of a regional board’s decision. The appellate court pointed out the fact the regional board’s decision could not be reviewed by “appeal” but only by “petition” meant the reviewing board was vested with discretion over whether to grant review. (Id. at p. 171.) But the fact the reviewing board had discretion to deny the petition did not undermine the validity of the underlying decision: “[W]hen the state board denied Barry’s petition for review, the regional board’s orders were final. At that point, Barry could have challenged those orders by way of mandate in the superior court.…” (Id. at p. 177.) Here, Shipman actually received a hearing and the SPB issued a decision, which became final and which could have been challenged by writ of mandate.

Even if we conclude a documentary hearing is not a sufficient hearing “required by law,” Shipman still would not be free to ignore the results of this procedure. “The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate. [Citation.] Statutes provide for two types of review by mandate: ordinary mandate and administrative mandate. (Code Civ. Proc., §§ 1085, 1094.5.) The nature of the administrative action or decision to be reviewed determines the applicable type of mandate. [Citation.] In general, quasi-legislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate. [Citations.] But judicial review via administrative mandate is available ‘only if the decision [] resulted from a “proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency. [Citations.]” [Citations.]’ [Citation.] Thus, ordinary mandate is used to review adjudicatory actions or decision when the agency was not required to hold an evidentiary hearing.” (Bunnett v. Regents of University of California (1995) 35 Cal. App.4th 843, 848, italics added, fn. omitted (Bunnett).)

“[T]he absence of an evidentiary hearing does not make mandate inapplicable: it merely affects the form of mandate that must be invoked,” either ordinary or administrative. (Bunnett, supra, 35 Cal. App.4th at p. 849.) Thus, the fact the SPB had discretion to deny a hearing does not have the legal effect Shipman asserts and does not give him leave to fail to seek judicial review of the SPB’s decision, which was reached after a full evidentiary hearing. (See DeCuir v. County of Los Angeles (1998) 64 Cal. App.4th 75, 82-83.)

The case Shipman relies on, Taylor v. State Personnel Board (1980) 101 Cal. App.3d 498 (Taylor), does not compel a different result. In that case, the court held that administrative mandamus was not available to review public employees’ suspensions without pay for 10 days or less, although the SPB affirmed the suspensions after a hearing, because neither section 19576, which at the time provided that when an employee is suspended without pay for 10 days or less the SPB “‘shall make an investigation with or without a hearing as it deems necessary,’” governs employee discipline in cases where an employee is suspended without pay for 10 days or less, section 19576, nor due process required a hearing and no evidence was required to be taken. (Taylor, supra, at pp. 502-505.)

In contrast to section 19576, the WPA essentially mandates either a documentary hearing or a hearing where testimony is received. Even if the SPB elects to initiate an investigation, under the rules applicable to Shipman’s claim, the investigation would be based on documentary evidence in the form of Shipman’s sworn statement and any documents, records or declarations on which his claim was based, and the respondents’ written response, which could include declarations, non-privileged documents and records. (Former rule 56.2, subds. (e), (f).) Based on that evidence, as well as any additional investigation, the executive officer would issue a notice of findings, in which the officer would determine whether the allegations of retaliation had been proven. (Former rule 56.2, sub d. (i).) Thus, the investigation becomes a contested proceeding based on opposing evidentiary submissions. The executive officer would serve as a neutral adjudicator and would be required to consider the parties’ documentary evidence as well as arguments. “[S]o long as the agency is required by law to accept and consider evidence from interested parties before making its decision,” the proceedings, even if entirely documentary, satisfy the hearing requirement of Code of Civil Procedure section 1094.5. (Old Trees, supra, 52 Cal. App.4th at pp. 1391-1392.)

Here, Shipman did receive a full hearing on his whistle blower retaliation complaint. When he failed to challenge the SPB’s decision dismissing his complaint because he had failed to prove he made a protected disclosure, that decision and the findings underlying it became final. Because Shipman has not set the decision aside, it precludes his civil action which is predicated on the same factual claims of retaliation. (Knickerbocker, supra, 199 Cal. App.3d at pp. 242-245.) Accordingly, the trial court did not err in granting summary judgment on Shipman’s WPA claim.

IV. The Labor Code section 1102.5 Claim

Shipman’s second cause of action is for violation of Labor Code section 1102.5. Labor Code section 1102.5, subdivision (b) protects “whistle blowers” by prohibiting an employer from “retaliat[ing] 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 trial court found this claim failed because Shipman did not disclose the Bollinger documents to a “government or law enforcement agency” within the meaning of the statute.

Here, Shipman showed the documents to only two individuals, namely Storm and Alexander, and he also told Diamond about them. Shipman does not dispute that Diamond is not part of a government or law enforcement agency. He does contend, however, that his disclosure of the documents to Storm and Alexander satisfied the requirement of disclosure to a government or law enforcement agency because they were correctional officers employed by the CDCR. While that is certainly true, neither Storm nor Alexander was in Shipman’s reporting structure and Alexander was not even employed at SCC. Moreover, the undisputed evidence shows that Shipman gave the documents to Storm and Alexander not in their capacity as correctional officers, i.e. so that the CDCR could investigate alleged misconduct, but in their capacity as union members. Significantly, Shipman admitted he never gave the documents to a governmental entity or law enforcement agency of any kind. In addition, Shipman never made a report to his government employer, the CDCR, so as to come within the meaning of Labor Code section 1102.5, subdivision (e), which provides that a “report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).”

Since Shipman failed to disclose the Bollinger documents to a government or law enforcement agency, he did not come within the protection of Labor Code section 1102.5, subdivision (b).

V. The 42 United State Code section 1983 Claim

Shipman claims Kramer, Prosper and Bollinger violated his First Amendment right to free speech and his Fourteenth Amendment right to due process in violation of 42 United States Code section 1983 (section 1983). We address each of these contentions in turn.

A. Freedom of Speech

Shipman contends the trial court erred in granting judgment on his free speech claim on the grounds that he did not engage in protected free speech, that Kramer and Prosper did not retaliate against him, and they were entitled to qualified immunity. Qualified immunity protects “government officials performing discretionary functions … from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818; see Ogborn v. City of Lancaster (2002) 101 Cal. App.4th 448, 457-458.) “[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” (Anderson v. Creighton (1987) 483 U.S. 635, 640.) Since qualified immunity is immunity from suit rather than a defense to liability, it is effectively lost if a case is erroneously permitted to go to trial. (Mitchell v. Forsyth (1985) 472 U.S. 511, 526.) Thus, the issue of qualified immunity is one that is properly resolved by way of a summary judgment motion. (Ibid.)

Claims of qualified immunity are evaluated using a two-step process. The threshold question is whether “[t]aken in the light most favorable to the party asserting the injury, … the facts alleged show the officer’s conduct violated a constitutional right.” (Saucier v. Katz (2001) 533 U.S. 194, 201 (Saucier).) If we determine the official’s conduct did not violate a constitutional right, we proceed no further and hold the official is entitled to qualified immunity. (Ibid.)¹² If we decide otherwise, however, we proceed to “ask whether the right was clearly established” at the time is was allegedly infringed. (Ibid.) “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” (Id. at p. 202.)

12 The Saucier analysis is applicable to section 1983 actions. (Bennett v. Murphy (3rd Cir. 2002) 274 F.3d 133, 136, fn. 4.)

At the first stage of our analysis under the Saucier framework, we consider the “threshold question” of whether any “constitutional right would have been violated were the [appellant’s] allegations established.” (Saucier, supra, 533 U.S. at p. 201.) Shipman contends his speech merits constitutional protection because it involved a matter of public concern. Since the United States Supreme Court decision in Pickering v. Board of Education (1968) 391 U.S. 563 (Pickering), it has been established that a public employee’s exercise of his or her “‘right to speak on issues of public importance’” may not furnish the basis for retaliation in public employment. (Havekost v. U.S. Dept. of Navy (9th Cir. 1991) 925 F.2d 316, 318; Burgess v. Pierce County (9th Cir. 1990) 918 F.2d 104, abrogated on other grounds by Johnson v. Jones (1995) 515 U.S. 304, 313-318; Barnes v. Small (D.C. Cir. 1988) 840 F.2d 972, 982.) Once a court finds an employee has spoken on a matter of public importance, the Pickering decision directs the court to balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Pickering, supra, 391 U.S. at p. 568.) Thus, the public employer can discipline an employee for speaking on a matter of public concern “if it can show that it reasonably believed that the speech would potentially interfere with or disrupt the government’s activities, [Citation], and can persuade the court that the potential disruptiveness was sufficient to outweigh the First Amendment value of that speech.…” (Heil v. Santoro (2nd Cir. 1998) 147 F.3d 103, 109.)

Before applying the balancing test, the threshold question “is whether the employee’s challenged speech may be ‘fairly characterized as constituting speech on a matter of public concern.…’” (Chico Police Officers’ Assn. v. City of Chico (1991) 232 Cal. App.3d 635, 643.) If the plaintiff’s speech “cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for [the employer’s alleged improper conduct].... When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” (Connick v. Myers (1983) 461 U.S. 138, 146, fn. omitted (Connick).) “‘[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” (Id. at p. 147.)

Whether an employee’s speech is constitutionally protected is a question of law. (Connick, supra, 461 U.S. at p. 148, fn. 7.) “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” (Id. at pp. 147-148.) Here, the trial court found that Shipman’s distribution of the Bollinger documents did not involve a matter of public concern. We agree.

“‘Speech by public employees may be characterized as not of “public concern” when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public’s evaluation of the performance of governmental agencies. [Citation.] On the other hand, speech that concerns “issues about which information is needed or appropriate to enable the members of society” to make informed decisions about the operation of their government merits the highest degree of first amendment protection.’” (Gray v. County of Tulare (1995) 32 Cal. App.4th 1079, 1090.)

Shipman contends his dissemination of the Bollinger documents to Storm and Alexander involved a matter of public concern because they exposed wrongdoing by Bollinger, namely his “felonious acts and possible resume fraud,” and the CDCR, in the form of its alleged attempt to cover up Bollinger’s wrongdoing. Shipman asserts his disclosure of this information was relevant to the public’s evaluation of CDCR’s performance, and therefore is protected speech.

The evidence shows, however, that the Bollinger documents revealed only that Bollinger previously had received a notice of adverse action which punished him for inefficiency, inexcusable neglect of duty, discourteous treatment of the public or other employees, willful disobedience and other failure of good behavior that caused discredit to the CDCR, and despite the prior discipline, the CDCR transferred Bollinger into the facility captain position. There is no evidence that the CDCR attempted to cover up Bollinger’s notice of adverse action or that Bollinger engaged in resume fraud. The CDCR’s transfer of one employee into one position is hardly a matter of public concern. To conclude otherwise would mean that any time a public employee challenges a hiring decision, even on the basis that the person hired previously had committed a crime, the challenge becomes a matter of public concern. However, “[t]o presume that all matters which transpire within a government office are of public concern would mean that virtually every remark – and certainly every criticism directed at a public official – would plant the seed of a constitutional case.” (Connick, supra, 461 U.S. at p. 149.)

Shipman argues that CDCR’s transfer of Bollinger is nonetheless important to the public’s evaluation of the CDCR’s performance. While CDCR’s hiring practices may be a matter of public concern, the highly individualized dispute that arose over Bollinger’s transfer simply is irrelevant to the public’s evaluation of the CDCR’s performance. (Compare Day v. South Park Independent School Dist. (1985) 768 F.2d 696, 699-700 [grievance filed by teacher was not matter of public concern because primary focus was on individual negative performance evaluation and not grievance procedures or policies as a whole] with Pickering, supra, 391 U.S. at p. 565 [teacher’s letter to the editor criticizing school board’s allocation of funding between athletics and academics was speech relating to a matter of public concern].)

For that reason, Shipman’s reliance on Blair v. City of Pomona (9th Cir. 2000) 223 F.3d 1074, is misplaced. In that case, it was uncontested that a police officer who had reported to his superiors misdeeds by officers in the major crimes task force, which included leaving early, drinking on duty, stealing money, throwing a couch on a suspect while executing a search warrant and taking heroin from one suspect and planting it on another, had a First Amendment right to inform his superiors of the misconduct. (Id. at pp. 1076, 1079.) In contrast here, by transmitting the Bollinger documents to fellow union members, Shipman was not informing his superiors of misconduct regarding Bollinger’s transfer that affected the public, but instead was, for union purposes, informing the union about discipline Bollinger had received over two years before the transfer. While as Shipman points out the public has an interest in the misuse of public funds, wastefulness or inefficiency in the management of public agencies (Chico Police Officers’ Assn. v. City of Chico, supra, 232 Cal.App.3d at p. 647; Roth v. Veteran’s Admin. of Government of U.S. (9th Cir. 1988) 856 F.2d 1401, 1405), the disclosure of the Bollinger documents in no way revealed any of those concerns.

Moreover, as in Connick, Shipman did not seek to inform the public that the CDCR was engaging in hiring practices that interfered with its obligations to taxpayers. (See Connick, supra, 461 U.S. at p. 148 [plaintiff’s conduct was not “of public import in evaluating the performance of the District Attorney as an elected official [because plaintiff] did not seek to inform the public that the District Attorney’s office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases”].)

In sum, the content, form and context of Shipman’s speech establishes, as a matter of law, that he was speaking “not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest.…” (Connick, supra, 461 U.S. at p. 147.) Therefore, we conclude that Shipman’s speech was not protected under the First Amendment. Given this finding, Kramer, Prosper and Bollinger automatically are entitled to qualified immunity and Shipman’s section 1983 free speech claim necessarily fails. (Saucier, supra, 533 U.S. at p. 201.)

B. Procedural Due Process

Shipman argues the trial court erred when it found that Kramer, Prosper and Bollinger did not violate his right to procedural due process. Shipman asserts that his due process rights were violated when (1) Kramer and Prosper failed to act with reasonable diligence in authorizing the investigation of the distribution of Bollinger’s documents before January 8, 2003, (2) discovered the alleged misconduct before January 8, 2003, but failed to initiate an investigation, (3) all of the reasons for Shipman’s termination were not stated in the notice of adverse action, (4) Shipman was charged with violating Penal Code section 5029, and (5) Kramer imposed harsher disciplinary action against Shipman than he did against Storm for the same misconduct. Shipman’s argument fails.

In analyzing a due process claim, we first determine whether the plaintiff had a property interest subject to due process protection under the Fourteenth Amendment of the United States Constitution. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 206 (Skelly).) If we find such an interest existed, we then determine whether the defendant met due process requirements when it deprived the plaintiff of that interest. (Id. at pp. 207-208.)

Under California law, an individual employed in the public sector who has attained the status of “permanent employee” has “a property interest in the continuation of his [or her] employment which is protected by due process.” (Skelly, supra, 15 Cal.3d at pp. 206-207.) Here, there is no assertion that Shipman was not a permanent employee whose property interest in his employment was protected by due process.

Once a court has determined that a party is entitled to due process, it must determine what process is due, and whether the party received it. (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal. App.4th 95, 112 (Bostean).) Those determinations are grounded in federal, not state, law. (Ibid.) “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” (Civil Service Assn. v. City & County of San Francisco (1978) 22 Cal.3d 552, 561, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 481.) Generally, it requires that an individual be afforded notice and an opportunity for a hearing before being deprived of a property interest. A predeprivation hearing is designed to assure reasonable grounds exist to support the deprivation. (Bostean, supra, 63 Cal. App.4th at pp. 112-113, citing Gilbert v. Homar (1997) 520 U.S. 924, 933.) Before discipline of a public employee becomes effective, the employee must be given “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Skelly, supra, 15 Cal.3d at p. 215.)

Here, Shipman received several notices of adverse action, which listed the reasons for the proposed discipline. Shipman was given the right to respond and ultimately, he requested a hearing. A hearing was held, in which he presented evidence and arguments, and the proposed discipline, i.e. a 30-day suspension, was upheld. Pursuant to Skelly, Shipman received all of the process due him.

Shipman nevertheless argues his due process rights were violated because Kramer and Prosper failed to authorize an investigation into the dissemination of the Bollinger documents earlier. Shipman asserts that he had a due process right to compliance with the statute of limitations set forth in section 3304, subdivision (d), which provides that subject to certain enumerated exceptions, a punitive action may not be undertaken for any alleged misconduct “if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.…” Even if an investigation should have been conducted earlier or was untimely, however, Shipman fails to explain how this deprived him of either notice or an opportunity to be heard. Shipman raised this argument before the SPB in the hearing on the notice of adverse action. The SPB rejected the argument, finding there was no evidence Kramer or Prosper were informed Shipman was the source of the documents before January 2003. Shipman was provided an opportunity to be heard on this issue.

Shipman also asserts essentially that the notices of adverse action failed to adequately advise him of the reasons for the action because some reasons were not listed on the notices and the notices asserted he violated Penal Code section 5029, which was not in effect at the time. Shipman neglects, however, to explain how or why these asserted shortcomings implicated his due process rights. Moreover, Shipman does not claim, much less attempt to demonstrate, that he was somehow deprived of a fair hearing even if all of the reasons for the proposed discipline were not included on the notices of adverse action or a statute was listed on them which he could not have violated. The notices of adverse action stated they were based on Shipman obtaining documents containing Bollinger’s personal and confidential information, taking the documents off prison grounds, photocopying them, and giving them to Storm. The decision issued following his hearing shows that he was disciplined for the same conduct, i.e. taking the Bollinger documents off site and photocopying them, and then distributing them to two union members without alerting Bollinger to the documents’ existence. Although Shipman was found to have violated certain statutes, he was not found to have violated Penal Code section 5029. Since Shipman was disciplined for the precise conduct listed on the notices of adverse action, and was not disciplined for violating Penal Code section 5029, he hardly can show that he was deprived of a fair hearing merely because other reasons for issuing the notices were not listed on them or an inapplicable statute was listed. Shipman is arguing a point he already won.

Finally, Shipman asserts he was deprived of due process because he received a harsher punishment than Storm. Shipman fails to explain, however, how unequal treatment constitutes a due process violation. Shipman received notice and a hearing, which was the process he was due.

For all of these reasons, we affirm the trial court’s rejection of Shipman’s procedural due process claim.

VI. The Defamation Claim

Shipman contends the trial court erred in finding in Kramer and Bollinger’s favor on his defamation claim because there were triable issues of fact regarding whether (1) Bollinger made defamatory comments and (2) Kramer’s comments were opinion or fact.

A. Bollinger

With respect to Bollinger, Shipman asserts he presented admissible evidence that Bollinger made defamatory statements which “challenged Shipman’s loyalty to his fellow officers and spread fallacious rumors regarding Shipman’s work ethic.” The evidence Shipman relies on, however, does not support this assertion. Shipman points first to his deposition testimony, given in response to the question of what Bollinger said to anyone that Shipman believed impugned his character, which he contends shows Bollinger made a defamatory statement: “I think that Bollinger tried to make me out … that I was out for myself, I didn’t really care about, you know, the other counselors, that I was doing this all for my own. I should be thinking about the institution and not all the issues that I have raised with them. Like on the initial breakdown and all, like what I was trying to do was have an effect on security, safety, and I wasn’t putting that ahead of other things.” Shipman also points to his testimony that he experienced hostility from Bollinger after he turned over the documents when “my supervisor would say things to me like I heard you’re out in the parking lot or I heard you were there, you know, and I knew it wasn’t coming from him because prior to Bollinger being the captain, I had never had anything like that happen.”

Defamation is the intentional publication of a false and unprivileged statement that has a natural tendency to injure or that causes special damage. (See Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179; see also Civ. Code, §§ 45, 46.) The testimony Shipman cites, however, does not show that Bollinger made any such statements, that he heard Bollinger make such statements, or that he has any other personal knowledge that such statements were made. At best, the evidence shows that Shipman believed Bollinger had made comments about his loyalty and work ethic because other employees were treating him differently. Significantly, Shipman did not offer into evidence the declaration or testimony of any of the counselors to whom the comments purportedly were made. Without evidence of an actual statement that Bollinger made, Shipman cannot establish any specific cause of action for defamation against him. As Shipman’s evidence is entirely speculative, Shipman has not raised a triable issue of material fact with respect to Bollinger sufficient to survive a summary judgment motion.

B. Kramer

Kramer asserts the defamation claim against him is barred because Shipman failed to state in his tort claim what defamatory statements he allegedly made. The Government Tort Claims Act bars any suit for money against a public entity unless and until the plaintiff submits a written claim to the public entity and the claim is either acted upon or deemed denied. (See § 945.4.) A cause of action against a public employee is barred if it is barred against the public entity. (See §§ 950.2, 950.6; Briggs v. Lawrence (1991) 230 Cal. App.3d 605, 612-613.) A written claim must include a statement of the factual basis for the claim, and, in the plaintiff’s ensuing action for damages, the complaint is subject to demurrer or motion for judgment on the pleadings if the action alleges a factual basis for recovery that was not included in the required pre-suit claim. (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447 (Stockett); Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal. App.3d 431, 434.)

Here, although Shipman’s pre-suit claim listed defamation as a ground or legal theory for his claim, the claim did not mention any allegedly defamatory statement. By failing to specify such statements, Shipman’s defamation claim is barred. Shipman’s only argument to the contrary is that a tort claim need not contain the detail and specificity required of a pleading, but need only “fairly describe what [the] entity is alleged to have done.” (Shoemaker v. Myers (1992) 2 Cal. App.4th 1407, 1426; Turner v. State of California (1991) 232 Cal. App.3d 883, 888 [explaining that the claim must “describe fairly” what the governmental entity is alleged to have done, with each of cause of action asserted in the complaint reflected in the claim and “‘the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’”].) Shipman further asserts the claims statute “should not be applied to snare the unwary where its purpose has been satisfied.” (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal. App.3d 70, 74.)

Shipman’s argument lacks merit. As the Supreme Court has stated, an action for damages is barred to the extent it is based on an “‘entirely different set of facts’” from those alleged in the pre-suit claim. (Stockett, supra, 34 Cal.App.4th at p. 447.) In particular, civil liability cannot be premised on “‘acts or omissions committed at different times or by different persons than those described in the [pre-suit] claim[.]’” (Ibid.) Here, the pre-suit claim does not allege any set of facts with respect to his defamation claim. Thus, under Stockett, the allegations in this lawsuit constitute an entirely different set of facts that cannot serve as the basis for the defamation claim. Since the defamation claim is barred, we need not address the alternative grounds for granting the motion on this claim as to Kramer, namely whether his statements were opinion or privileged.

VII. The Intentional Infliction of Emotional Distress Claim

Shipman’s claim for Intentional Infliction of Emotional Distress (IIED) as stated in his first amended complaint is based on three acts he alleges caused him severe emotional distress: (1) the OIG investigation into the dissemination of the Bollinger documents; (2) the allegedly defamatory statements made about him; and (3) his termination following the OIG investigation. Apparently recognizing that his IIED claim based on the first and third acts is barred because workers’ compensation is his exclusive remedy for any emotional distress he experienced based on those acts, on appeal he argues only that the trial court erroneously granted summary judgment on his IIED claim because he offered sufficient evidence that Kramer’s and Bollinger’s statements constituted the outrageous conduct necessary to support such a claim.¹³ Assuming without deciding that workers’ compensation is not the exclusive remedy for Shipman’s IIED based on the alleged defamatory statements, we find no error.

13 It is well-settled in California that employee injuries stemming from the employment relationship are not subject to a civil action but are pre-empted by the exclusivity provisions of the Workers’ Compensation Act, Labor Code section 3600 et seq. (See Shoemaker v. Myers (1991) 52 Cal.3d 1, 17-20.) This is so “[e]ven if [the alleged] conduct may be characterized as intentional, unfair or outrageous,...” (Id. at p. 25.) It has been held, however, that “defamatory statements which have no other purpose than to damage an employee’s reputation are neither a ‘normal part of the employment relationship’ nor a risk of employment within the exclusivity provision of the Workers’ Compensation Act,” and therefore claims based on those statements are not subject to workers’ compensation preemption. (Davaris v. Cubaleski (1993) 12 Cal. App.4th 1583, 1591; Howland v. Balma (1983) 143 Cal. App.3d 899, 905.)

An IIED cause of action requires a showing of extreme and outrageous behavior beyond all bounds of decency. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, disapproved on another point in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4.) The conduct must have been committed with the intention of causing, or reckless disregard of the probability of causing, emotional distress, and the plaintiff must have suffered severe emotional distress. (Agarwal, supra, at p. 946.) “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Ibid.) Whether behavior is extreme and outrageous is a legal determination to be made by the court, in the first instance. (Fowler v. Varian Associates, Inc. (1987) 196 Cal. App.3d 34, 44 .) However, “‘[w]here reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” (Lagies v. Copley (1980) 110 Cal. App.3d 958, 974-975, disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738.)

Here, Shipman contends Kramer’s statements to Kirkland, Diamond and Veatch that he believed Shipman was being dishonest about from whom he obtained the Bollinger documents and Bollinger’s “statements” that Shipman was disloyal and only looking out for himself were extreme and outrageous conduct because Kramer and Bollinger, who were several ranks above him, abused their superior employment relationship when they made the statements, they should have known the statements exposed him to potential harm due to the prison environment, and they would have recognized the statements likely would result in illness through mental distress. We disagree. First, as discussed above, since there is absolutely no evidence that Bollinger made any statements regarding Shipman’s loyalty or work ethic, there is no basis for a defamation claim against Bollinger, let alone one for IIED. With respect to Kramer’s statements, any action for IIED based on them arguably is barred for the same reason Shipman’s defamation claim is barred, namely his failure to include the statements in his government tort claim. Even if not barred on that basis, the IIED claim fails because the statements, which were made in the context of investigating the dissemination of the Bollinger documents, determining Shipman’s punishment, and discussing a resolution of the matter, were not so extreme as to exceed all bounds of that usually tolerated in a civilized community. Contrary to Shipman’s assertions, there is no evidence that Kramer abused his position in making these statements, that he knew Shipman was susceptible to injury, or that Shipman was likely to experience illness through mental distress. Making comments about an employee’s truthfulness in the course of a workplace investigation does not exceed all bounds of conduct usually tolerated in a civilized society. Thus, the trial court properly entered summary judgment against Shipman on his IIED claim.

VII. Judicial Bias

Shipman contends the bias of the trial judge mandates reversal. He bases his contention on the following comments the trial court made during oral argument on the summary judgment motion, which the court made after Shipman’s attorney presented his argument on the motion: “... I don’t know what outrageous action Bollinger did, but I thought Shipman’s behavior was far more outrageous. I don’t think he falls under any whistle blower statute, I don’t think he falls under Labor Code section 1102.5, and certainly, I don’t think there is anything dealing with free speech or due process going on here. And the fact that people involved in this litigation made comments about his credibility are certainly something that they would be expected to make comments on when they’re investigating what happened. [¶] ... I can’t think of any reason I wouldn’t grant this. Not a word that you have said has changed my opinion that this case is outrageous from the plaintiff’s point of view. [¶] And, in fact, I actually thought when I looked at this case that it was one of those lawsuits intended to intimidate everybody. Don’t dare fire me or don’t dare do a job action on me or I’ll sue you. And then look at the cost. And I now have five, count them, five court files on this case. And I think this case is outrageous. [¶] I was surprised, frankly, that an attorney would even file it. But I was then particularly blown away by the fact that it had gotten so out of hand with five files. I cannot find any questions of fact that I would let go to a jury in this case. I thought that the conduct of the plaintiff was outrageous in taking a correctional officer’s files with all that kind of personal information, and there is something about it being a correctional officer that makes it even more scary. This is not just somebody . . . who could have an identity theft case happening because of the dissemination of this information. It’s somebody who could be dead because of the dissemination of this information....”

Shipman asserts the court’s comments conveyed the impression the trial judge was biased against him and therefore he was deprived of his right to due process under the state and federal constitutions. We disagree as we do not deem the court’s comments to be indicative of bias or prejudice. “When reviewing a charge of bias, ‘... the litigants’ necessarily partisan views should not provide the applicable frame of reference. [Citations.]’ [Citation.] Potential bias and prejudice must clearly be established [citation] .... ‘Bias or prejudice consists of a “mental attitude or disposition of the judge towards [or against] a party to the litigation....”’ [Citations.] Neither strained relations between a judge and an attorney for a party nor ‘[e]xpressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are ... evidence of bias or prejudice.’” (Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal. App.4th 716, 724.) Thus, a party cannot premise a claim of bias on a judge’s statements made in his official capacity (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal. App.3d 1023, 1031 ), or a judge’s substantive opinion on the evidence (Kreling v. Superior Court (1944) 25 Cal.2d 305, 312), or the judge’s ruling (even erroneously) against him (McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11). (See also Haldane v. Haldane (1965) 232 Cal.App.2d 393, 395 [trial judge’s opinions regarding law and facts, reached after hearing in performance of judicial duty, do not constitute ground for disqualification].)

Here, the trial court’s remarks merely were ones made in the court’s official capacity based on its opinion of the evidence. Accordingly, the court did not deprive Shipman of a fair trial and there is no basis for reversal on the record before us. The case Shipman relies on, Hall v. Harker (1999) 69 Cal.App.4th 836, disapproved on another ground in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349, does not compel a different result. In that case, a malicious prosecution action, the trial judge made numerous comments throughout the trial which “strongly suggest[ed] the judge held preconceived ideas about the proclivity of attorneys to initiate and churn litigation for financial gain, regardless of the merit of the claims or the damage it might do to the defendant.” (Id. at pp. 842-843.) This case is a far cry from the present one, in which the trial judge merely offered her view of the evidence presented on the motion after reviewing the papers and hearing the oral argument. Perceiving no actual or apparent bias or prejudgment on the trial court’s part, we reject Shipman’s claim he was denied a fair hearing.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondents.

WE CONCUR: Cornell, Acting P.J., Dawson, J.