Opinion
D056801 Super. Ct. No. 37-2008-00080855-CU-WM-CTL
10-13-2011
ALEKSEI E. SVIRIDOV, Plaintiff and Appellant, v. CITY OF SAN DIEGO et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Steven R. Denton, Judge. Affirmed in part; reversed in part and remanded with directions.
Aleksei Sviridov, a former police officer, appeals from a summary judgment in favor of defendants City of San Diego (City) and the San Diego Police Department (Department) on his complaint alleging, among other things, wrongful termination, discrimination on the basis of national origin, hostile working environment, and retaliation in violation of California's Fair Employment and Housing Act (FEHA; Gov. Code, § 12900, et seq.). He also challenges an order sustaining without leave to amend City's demurrers to his fifth and ninth causes of action. In part, Sviridov contends the trial court misapplied Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 in sustaining the demurrers, and erred by relying on standards for "at-will" employees in granting summary judgment on his discrimination and retaliation claims.
We hold as to Sviridov's ninth cause of action, which pertains to Department's alleged termination of Sviridov's employment in October 2008 on grounds he failed to report for duty, Sviridov should have been granted leave to amend to allege a cause of action for relief under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq., Bill of Rights Act). Sviridov should also be granted leave to amend his third amended complaint to seek a petition for writ of mandate (Code Civ. Proc., §§ 1094.5, 1085) challenging defendants' October 2008 termination decision and compelling them to provide him with required procedural protections, including an opportunity for an administrative hearing. Defendants' actions and inactions with regard to Sviridov's October 2008 termination, and the potential causes of action stemming from them, are not subject to governmental immunity nor was Sviridov required to meet California Tort Claims Act prefiling requirements for these claims. Further, we conclude Sviridov is not barred by judicial estoppel from asserting these claims.
We therefore reverse the judgment for the sole purpose of permitting the court to grant Sviridov leave to amend to allege those causes of action pertaining to his October 2008 termination. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On appeal from a summary judgment, we view all of the evidence and draw all inferences from that evidence in the light most favorable to Sviridov, the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The facts are taken from Sviridov's opposing summary judgment declaration, as well as undisputed facts set out in respondents' summary judgment separate statement of material facts.
Sviridov's declaration essentially duplicates the background allegations of his operative third amended complaint, and his opposing summary judgment separate statement of material facts is almost entirely supported by that declaration. City's reply separate statement disputes and labels immaterial virtually every paragraph of Sviridov's declaration, including uncontroversial statements such as Sviridov's citizenship, and dates of employment and termination. City also filed evidentiary objections to almost every paragraph in the declaration. The trial court overruled all of City's evidentiary objections with the exception of the last sentence in paragraph 20 and the third sentence of paragraph 39, to which City's objections were sustained. On appeal, City asks us to rule de novo on every one of its objections. We will pass on City's objections only to the extent City specifically challenges particular evidentiary rulings with meaningful argument and authority, and demonstrates an abuse of discretion. (See Code Civ. Proc., § 437c, subd. (c) [court shall consider all evidence set forth in summary judgment papers except that to which objections have been made and sustained]; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 [acknowledging de novo standard for review of summary judgments but applying abuse of discretion standard to court's final rulings on evidentiary objections]; see also Reid v. Google (2010) 50 Cal.4th 512, 535 [declining to "decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].)
Sviridov, who was born in the former Soviet Union and is a Russian-speaking United States citizen, was employed by Department from February 2001 to November 30, 2007, when he was terminated from employment. Beginning with his academy training in 2001, and during his assignments in the mid-city command and other squads, other employees and recruits subjected Sviridov to various derogatory comments, some of which referred to his Russian heritage. The comments included: "You are different vodka." "Russian Spy." "We beat up Russians." "I will break your fucking neck." "Urraa Chernobyl [a celebratory reference to the nuclear disaster]." "If they shoot my partner, I will shoot you." "We shoot defectors in our military." "How long have you been speaking English?" and, "Now they are hiring Russians who don't speak English."Sviridov filed a complaint with the "EEO" but it was ruled unfounded, and individuals began to refer to Sviridov as a "rat.".
In his summary judgment declaration, Sviridov stated the "key participants" in the discrimination were Sergeant Brian Goldberg, Sergeant Bob Christano, Sergeant William Albrektsen, Sergeant Sandy Rapalee, Officer Liz Webber, Lieutenant David Rohowitz, Lieutenant Marvin Shaw, Captain Boyd Long, Sergeant Kelly Johnson and Chief Joel Bryden. However, defendants pointed out that in Sviridov's deposition taken in the action, Sviridov admitted he had no evidence that Captain Long or Assistant Chief Bryden had taken any discriminatory actions against anyone of Russian ancestry, other than their participation in his termination. The rule is well settled that " '[a] party cannot create an issue of fact by a declaration which contradicts his prior [discovery responses].' " (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860.) As we explain below, Sviridov presented no evidence that either Captain Long or Assistant Chief Bryden participated in any of the remarks directed at Sviridov's Russian heritage.
The derogatory comments directed at Sviridov continued from 2002 through 2004, during which Sviridov was evaluated as below standard and placed on probation, was falsely accused of possessing an AK-47 assault rifle, became the subject of internal investigations and negative evaluations for incidents in which he eventually received commendations, and was accused of being involved in Russian organized crime. At some point, someone planted a large amount of marijuana in his patrol vehicle.
In or about 2004, Sviridov was assigned to a new field training officer after he complained to the Police Officer's Association (POA) director and his captain about evaluations accusing him of discrimination against African Americans, inability to drive a motor vehicle, and illiteracy. Sviridov had initially refused to sign the evaluation reports but did so with a notation, "under duress," after he was ordered to sign them. In or about 2005, Sviridov was transferred to a different command after he reported an act of discrimination against a Vietnamese officer to a field supervisor. An EEO complaint was filed, and Sviridov became known as a whistle blower against acts of discrimination in the mid-city division.
In April 2006, Sviridov was ordered to carry a ceramic monkey in his patrol vehicle. Two officers also referred to him as "RPS" in electronic messages and in front of the entire squad, which another officer told him meant "Russian Piece of Shit." Though Sviridov's sergeant witnessed some of the statements, he did nothing. In June 2006, Boyd Long was promoted to Captain and assigned to Sviridov's command.
By mid-2006, a criminal case had been filed against Sviridov as a result of an incident that occurred on March 23, 2006, in which Sviridov was alleged to have struck his daughter. Sviridov was stripped of his police powers.
In September 2006 Sviridov filed an internal discrimination complaint against Department, but was advised by an equal employment investigation manager that his allegations did not fall within the purview of that office. That same month, Sviridov was tried and convicted of battery in the criminal case. He was sentenced in October 2006. Sviridov complained to Captain Long and told him the child abuse accusation was the result of false accusations by a group of mid-city police officers, and that he had a long history as a victim of discrimination and targeting in mid-city. The captain told Sviridov he would make a fair decision.
In February 2007, a sergeant with internal affairs issued an investigation report accusing Sviridov of dishonesty. Sviridov rebutted the report in April 2007, and provided evidence of his innocence to Captain Long. In May 2007, Captain Long recommended Sviridov's termination and on June 16, 2007, issued an advance notice of termination. He advised Sviridov that his recommendation was based on Sviridov's use of force on his daughter, which was a violation of law resulting in the battery conviction, as well as Sviridov's untruthfulness to an administrative investigator, which was a violation of Department policy. Sviridov, represented by a POA attorney, appealed that recommendation before Lieutenant Marvin Shaw, who upheld the recommendation. Exercising his independent judgment, Lieutenant Shaw arrived at the conclusion that Sviridov had caused his daughter's injuries but lied about it. Sviridov then appealed his termination to Assistant Chief Bryden, who also upheld the termination decision. At that appeal, Assistant Chief Bryden allowed Sviridov to present his own version concerning what happened, and permitted testimony from expert and character witnesses. Assistant Chief Bryden concluded that the charges against Sviridov were well founded and termination was appropriate. Assistant Chief Bryden's decision was signed off on by Chief William Maheu, who had consulted with Chief William Landsdowne. Both Chief Maheu and Chief Landsdowne concluded there was enough evidence for them to believe Sviridov had struck his daughter and did not testify honestly in court and during the internal affairs investigation, warranting Sviridov's termination.
On October 17, 2007, during the pendency of Sviridov's internal appeals, Sviridov's criminal conviction was reversed on grounds of instructional error and remanded for a new trial.
On November 30, 2007, Department terminated Sviridov, and Captain Long recommended against Sviridov's future employment with City. In its notice of termination, Department stated Sviridov was untruthful about the facts of the March 23, 2006 incident to internal affairs investigators, which violated Department's truthfulness policy and a civil service rule. The same day, the city attorney's office notified Sviridov it was dropping the criminal charges against him.
Sviridov appealed his termination with City's Civil Service Commission (the Commission). Thereafter, he filed a petition in the superior court under Penal Code section 851.8 for an order determining that he was factually innocent of the criminal charges made against him. Following a hearing on Sviridov's motion in January 2008, San Diego Superior Court Judge Robert O'Neill determined that Sviridov was factually innocent of all five charges of child abuse, battery, and witness/victim intimidation.
City then moved the Commission to rescind Sviridov's termination, which Sviridov opposed. The Commission heard that motion in August 2008, during which Sviridov's counsel asked the commissioner to issue a finding as a matter of fact and collateral estoppel that Sviridov was fired by Department without cause. The hearing officer recommended in part that City's motion to rescind Sviridov's termination be granted and that Department rescind the termination and reinstate him as a Police Officer II.
On October 2, 2008, the Commission adopted the hearing officer's decision to rescind Sviridov's termination. On the same day, Department ordered Sviridov to return to work immediately. The next day, a sergeant telephoned Sviridov and gave him a direct order to return to work on October 6, 2008. Letters were sent to Sviridov on October 7, 2008, and October 15, 2008, ordering Sviridov to return to work. In the latter correspondence, Department notified him that his failure to return to work was a direct violation of an order, and that Department policy stated that "[a]bsence from duty without leave for a period of three days shall be considered a resignation and may be processed as such."
Sviridov refused to return to work. Instead, his attorney advised Department that Sviridov would move for a temporary restraining order and injunction challenging City's and the Commission's actions. He filed a petition for writ of administrative mandamus seeking a hearing on the merits with the Commission, as well as a ruling that City and the Commission did not have jurisdiction or authority to rescind his termination.
Sviridov also unsuccessfully sought ex parte to stay the Commission's decision as well as a temporary restraining order to enjoin Department from demanding he return to work and from taking any action affecting his past or future employment until the court adjudicated his writ petition. The trial court eventually denied Sviridov's petition, and this court affirmed that decision on appeal. (Sviridov v. San Diego City Civil Service Commission (Nov. 22, 2010, D055109 [nonpub. opn.].) We held once City had agreed Sviridov was entitled to all the relief he could obtain administratively, his administrative claim was moot and there was no need to determine whether he struck his daughter or was dishonest in denying that he had done so. (Ibid.) On our own motion, we take judicial notice of our prior unpublished appellate opinion and appellate records in these matters. (Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of court records], 459; Cal. Rules of Court, rule 8.1115(b)(1); Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1171-1173 [court may take judicial notice of prior unpublished opinions in related appeals on its own motion].)
Department terminated Sviridov effective October 18, 2008, for failing to report to work. At that time, Sviridov had not been medically cleared to return to duty; his police powers had not been restored; his uniforms, badge and duty weapon had not been returned; and his back pay, earned wages and vested vacation pay had not been tendered.
At some point before his motion hearing in the Commission, Sviridov sued City and Department, eventually filing a third amended complaint. The first five causes of action were based on his November 2007 termination, and alleged violations of FEHA for wrongful termination on the basis of national origin (first and second causes of action), hostile work environment on the basis of national origin (third cause of action), retaliation for his complaints of discrimination (fourth cause of action) and breach of contract (fifth cause of action). His sixth through ninth causes of action alleged the same FEHA violations based on his October 2008 termination. Sviridov alleged he had obtained a notice of rights letter from the Department of Fair Employment and Housing (DFEH) entitling him to pursue a private civil action against City and Department, had filed an administrative action with City, and sent a letter of appeal and request for a hearing with the Commission.
In connection with the latter termination, Sviridov alleged violations of the Labor Code (tenth cause of action) for Department's failure to pay his back pay and wages. The court later ruled Sviridov's tenth cause of action was barred as a matter of law by Labor Code section 220, subdivision (b) due to City's status as an " 'incorporated city, or town or other municipal corporation.' " It further ruled Sviridov could not recover damages in the nature of a penalty against City. Sviridov does not challenge summary adjudication of his tenth cause of action on appeal. Sviridov's eleventh cause of action alleged violations of the Unruh Civil Rights Act (Civ. Code, § 51 et seq., Unruh Act). Sviridov conceded this cause of action did not state facts sufficient to allege a viable ground for relief and was subject to demurrer without leave to amend, and the trial court ruled, based on that concession, the Unruh Act claim was without merit.
City demurred to Sviridov's complaint. In part, it argued all of the causes of action related to Sviridov's November 2007 termination were barred by Sviridov's failure to exhaust judicial remedies relating to the Commission's adverse findings. It maintained Sviridov had not obtained a final determination of his internal appeal to the Commission before filing the present complaint; that until he succeeded in overturning the Commission's decision, it had a preclusive effect on his causes of action based on that termination. City further argued the fifth and ninth causes of action failed to state causes of action for breach of contract because Sviridov was a public employee whose terms and conditions of employment were governed by statute and ordinance, not by any written employment contract. It argued Sviridov's collective bargaining agreement did not give rise to contract claims for damages against it. Finally, City argued the ninth cause of action and others were barred by judicial estoppel because in opposition to City's motion to rescind his November 2007 termination, Sviridov had taken the position that he was a private citizen not subject to Department orders at the time it ordered him to return to work in October 2008.
In opposition, Sviridov suggested his reference to a contract was a "mistake[]." He argued he had stated viable causes of action for "wrongful termination [in] violation of fundamental due process" by allegations he was a classified employee subject to removal only for cause and that Department did not follow municipal code procedural requirements for removal of classified employees in connection with his October 2008 termination. He asked the court to overrule the demurrer or afford him leave to amend to correct his theory of recovery.
The trial court sustained City's demurrers to Sviridov's fifth and ninth causes of action without leave to amend. It ruled with respect to the fifth cause of action, "any breach of contract was cured after the termination was rescinded and back pay provided." The court ruled both causes of action were without merit because civil service employees could not state a breach of contract cause of action, and a government entity could not be held liable for the common law claim of wrongful termination in violation of public policy. It overruled City's demurrers to Sviridov's remaining causes of action.
City then moved for summary judgment or alternatively summary adjudication of Sviridov's FEHA causes of action. It argued Sviridov could not make out a prima facie case of discrimination or retaliation because he could not show any connection between his terminations and his Russian heritage, and even if he made such a showing, it could demonstrate a legitimate, nondiscriminatory or non-retaliatory reason for his discharge. City also argued Sviridov had no evidence to show City's stated reason for his termination was a pretext for discrimination. It presented declarations from the chief of police and other department personnel involved in the decision to terminate Sviridov in November 2007 and October 2008, attesting they had no knowledge of the events Sviridov described in his third amended complaint and that no person involved in the alleged derogatory comments was involved in any of the decisions leading to his terminations in November 2007 and October 2008. The declarants denied any knowledge of any conspiracy against anyone of Russian ancestry, descent or national origin. They each averred that none of the actions they had taken against Sviridov were influenced by negative feelings toward him based on his Russian ancestry or by any desire to retaliate or discriminate against him because he opposed practices forbidden by FEHA or had filed any complaint or proceeding under FEHA or the Labor Code.
The court granted City's motion. It ruled as to Sviridov's wrongful termination cause of action under FEHA for his November 2007 termination, City had met its threshold burden of demonstrating it terminated Sviridov for being untruthful regarding the March 2006 incident, and Sviridov provided no evidence from which a trier of fact could find or infer that any of the five persons involved in that termination decision — Assistant Chief Bryden, Chief Lansdowne, Captain Long, Assistant Chief Maheu or Acting Captain Shaw — were motivated by his Russian ancestry. The court relied on the same absence of evidence of discriminatory motive to dispose of Sviridov's second cause of action. As for Sviridov's third cause of action, the court ruled as a matter of law the alleged derogatory comments did not give rise to a harassment claim; the conduct did not amount to ongoing conduct that was sufficiently severe or pervasive, and there was no evidence any of Sviridov's supervisors were aware of some of the conduct. The court found none of the persons involved in Sviridov's termination were aware of his EEO complaints or complaints about discrimination against himself or others, and there was no other circumstance from which a trier of fact could infer a causal connection between those complaints and Sviridov's termination.
As for the causes of action based on Sviridov's October 2008 termination, the court ruled City's evidence showed the reason for that termination was Sviridov's failure to report for work after being ordered to do so; City presented a legitimate reason for the termination; Sviridov did not demonstrate that the individuals involved in that termination decision — Chief Lansdowne and Captain Long — harbored any ill will toward him based on his Russian ancestry or acted in a discriminatory manner; Sviridov did not present evidence that the decision to terminate him was based on ancestry or national origin; and Sviridov presented no evidence from which a trier of fact could infer his October 2008 termination was retaliatory in that it was causally connected to his litigation activities.
Sviridov appeals from the ensuing judgment.
In February 2010, Sviridov filed a notice of appeal from the judgment entered in City's favor on January 29, 2010. On September 24, 2010, the superior court entered an amended judgment including an award of costs to City. City does not assert any claim with regard to the timing of Sviridov's appeal, and thus we will liberally construe it as from the amended judgment. (See Cal. Rules of Court, rules 8.100(a)(2), 8.104(e).)
DISCUSSION
I. Demurrers to Fifth and Ninth Causes of Action
Characterizing his fifth and ninth breach of contract causes of action as stating claims for wrongful termination, Sviridov contends the trial court erred by "assuming" that Miklosy, supra, 44 Cal.4th 876, eliminated all public employee causes of action for wrongful termination. He argues Miklosy does not apply where a public employee claims he has been deprived of a due process property or liberty interest in continued employment absent misconduct. Pointing out he had attained permanent status with Department, Sviridov maintains he was entitled to, but denied, a limited hearing prior to his termination and a more comprehensive posttermination hearing. Sviridov asserts he was denied pretermination due process in connection with his November 2007 termination and deprived of both pretermination and posttermination due process in connection with the October 2008 termination.
In reply, Sviridov modifies this argument, arguing he was entitled to a posttermination due process hearing "because when he was fired he was also defamed," and he has a "Fourteenth Amendment liberty and property interest when he is defamed in the course of being fired." We disregard this argument because it was made for the first time on appeal in Sviridov's reply papers, and Sviridov gives no reason for his failure to present it earlier. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3; DiCola v. White Brothers Performance Products (2008) 158 Cal.App.4th 666, 677.) A. Standard of Review
On review of an order sustaining a demurrer without leave to amend, the reviewing court assesses the superior court's order de novo, exercising our independent judgment as to whether, as a matter of law, the complaint states a cause of action on any available legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998; Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439-440.) We give the complaint a reasonable interpretation, and read it in context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We assume the truth of all properly pleaded facts alleged in the complaint and the reasonable inferences that may be drawn from those facts, as well as judicially noticed matters. (Miklosy, supra, 44 Cal.4th at p. 883; Schifando, at p. 1081.) "We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court's stated reasons." (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 848.)
In deciding whether there is a reasonable possibility that any insufficiency can be cured by amendment, we are not limited to Sviridov's theory of recovery or form of action pleaded. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 870.) B. Sviridov Cannot State Tort Causes of Action for Wrongful Termination
Sviridov properly abandoned his position that his fifth and ninth causes of action are contract claims. (Miller v. State of California (1977) 18 Cal.3d 808, 813 [civil service employment is fixed by statute and cannot be circumvented by purported contracts contrary to the terms and conditions fixed by law]; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1690 [city employee cannot sue for breach of contract based on termination of employment].) However, as we explain, he has failed to plead viable causes of action for tortious wrongful termination under any legal theory.
Sviridov's attempt to state tort causes of action for "wrongful termination" suffers from the same flaws found in Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, in which a public employee was terminated without warning or prior notice, but provided all of his accrued salary and vacation pay. (Id. at p. 1053.) The employee filed a written claim with the city under Government Code section 945.4, and the next day, the city notified him he was being reinstated due to the administrative errors, but the city still intended to terminate him. (Id. at pp. 1053-1054.) The plaintiff did not seek mandamus review of a later city council decision upholding both first and second terminations, but instead filed an action for wrongful termination two weeks before his city council hearing. (Id. at p. 1055.) He set forth causes of action for "wrongful termination" and "tortious denial of administrative due process" (capitalization omitted), alleging the city violated its own rules and its failure to conduct a hearing violated his right to due process. (Id. at p. 1056.)
On appeal of a summary judgment in the city's favor, the plaintiff's central contention was "that a classified employee has an actionable claim for damages, despite a subsequent reinstatement with back pay, if a public entity (1) terminates the employee without according him the pretermination procedural rights guaranteed by [Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly)] and then (2) fails to conduct a hearing to consider the employee's appeal of that termination, or reinstate the employee, until after the employee has filed a governmental tort claim against the public entity to recover damages for the improper termination." (Summers v. City of Cathedral City, supra, 225 Cal.App.3d at pp. 1057-1058.)
The Court of Appeal rejected these contentions, stating no cause of action for wrongful termination exists "unless that termination, if proven to be wrongful, will entitle him to recover damages over and above the thousands of dollars of back pay which he accepted upon his reinstatement." (Summers v. City of Cathedral City, supra, 225 Cal.App.3d at p. 1058.) It explained that the California Supreme Court had identified three theories under which a wrongful termination action may be brought: "an action in tort for a discharge in contravention of public policy; a contract action for a discharge in breach of an express or implied-in-fact employment agreement; and an action for breach of the implied-in-law covenant of good faith and fair dealing." (Id. at p. 1059, citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654.) The plaintiff could recover tort damages only if his discharge was in contravention of public policy, but in that case, the "plaintiff has neither alleged nor offered evidence to show that the City discharged him ' "for reasons violative of fundamental principles of public policy . . ." ' " (Summers, 225 Cal.App.3d at p. 1059.) It concluded the plaintiff was restricted to contract damages, and the alleged tort causes of action thus failed. (Ibid.)
This appeal is in a similar posture. In his fifth cause of action, Sviridov alleges his November 2007 termination violated a municipal code provision requiring cause for his termination, and that by virtue of his innocence of all charges, defendants had no cause to remove him from employment. Sviridov repeats those allegations with respect to his October 2008 termination, and additionally alleges his termination violated a municipal code provision requiring advance notice of charges, an opportunity to respond and notice of the right to representation. He further alleges defendants were obligated to, but did not, offer or conduct a Skelly hearing before his October 2008 termination. In short, Sviridov claims he was wrongfully terminated without cause because he was denied essential protections under the municipal code and fundamental due process. He seeks economic damages under both causes of action.
Sviridov cannot, however, state a cause of action for tortious "wrongful termination," because the sole available theory (apart from his FEHA based discrimination claims) is one of tortious discharge in violation of public policy, and Sviridov fails to identify a fundamental principle of public policy on which such a claim may be based. "In order to sustain a claim of wrongful discharge in violation of fundamental public policy, [the plaintiff] must prove that his [her] dismissal violated a policy that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or constitutional provision." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fns. omitted; see also Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1307.) "Tort claims for wrongful discharge typically arise when an employer retaliates against an employee for '(1) refusing to violate a statute . . . [,] (2) performing a statutory obligation . . . [,] (3) exercising a statutory right or privilege . . . [, or] (4) reporting an alleged violation of a statute of public importance.' " (Turner, 7 Cal.4th at p. 1256.) Even where there has been an alleged violation of a statute to support the claim, a court "must still inquire whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee." (Foley v. Interactive Data Corp, supra, 47 Cal.3d at p. 669.) As in Summers, Sviridov's attempt to allege a tort cause of action for wrongful termination fails. (Summers v. City of Cathedral City, supra, 225 Cal.App.3d at p. 1059.)
Even assuming Sviridov has identified the sort of firmly established public policy on which a Tameny claim may be based, on de novo review we conclude (as did the trial court) Sviridov's attempt to assert Tameny tort claims are barred by the California Tort Claims Act (Gov. Code, § 810 et seq.), which provides that a "public entity is not liable for an injury [arising] out of an act or omission," except as provided by statute. (Gov. Code, § 815; Miklosy, supra, 44 Cal.4th at p. 899; see also Ross v. Bay Area Rapid Transit (2007) 146 Cal.App.4th 1507, 1513-1514.) "The Legislative Committee Comment to section 815 states: 'This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. . . . ' " (Miklosy, 44 Cal.4th at p. 899.) Sviridov misunderstands the phrase "except for such liability as may be required by the state or federal constitution . . . ." (Legis. Com. com., 32 West's Ann. Gov. Code (1995 ed.) foll. § 815, p. 167, italics added.) The exception requires an express statutory or constitutional declaration of liability and authorization for recovery of civil damages. (See, e.g., Odello Bros. v. County of Monterey (1998) 63 Cal.App.4th 778, 792-793 [" 'public entities may be held liable only if a statute (not including a charter provision, ordinance, or regulation) is found declaring them to be liable,' " quoting Legis. Com. com., 32 West's Ann. Gov. Code (1995 ed.) foll. § 815, p. 167].) Sviridov seeks damages for City and Department's acts or failures to act but has not identified a statute or constitutional provision that would authorize such damages recovery. This deficiency is fatal to his claim. C. Sviridov's Fifth Cause of Action Pertaining to His November 2007 Termination Otherwise Cannot State a Viable Cause of Action
1. The Finding of Factual Innocence is Inadmissible
Sviridov's fifth cause of action is predicated on the theory that he was terminated without cause in view of his actual factual innocence of the battery and other charges. However, the trial court's Penal Code section 851.8 factual innocence finding is inadmissible in this action as a matter of law. (Pen. Code, § 851.8, subd. (i)(1) ["Any finding that an arrestee is factually innocent pursuant to subdivision (a), (b), (c), (d), or (e) shall not be admissible as evidence in any action"].) Accordingly, no evidence of Sviridov's factual innocence may properly be put before a court or jury.
We reject Sviridov's arguments to the contrary. Penal Code section 851.8, subdivision (c) states: "In any case where a person has been arrested, and an accusatory pleading has been filed, but where no conviction has occurred, the defendant may, at any time after dismissal of the action, petition the court that dismissed the action for a finding that the defendant is factually innocent of the charges for which the arrest was made. . . . If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall grant the relief as provided in subdivision (b)." Following the grant of new trial on Sviridov's criminal charges, Sviridov was placed "in the same position as if no trial had been had." (Pen. Code, § 1180.) Thus, no conviction had occurred for purposes of Penal Code section 851.8, subdivision (c).
Maintaining he was never arrested and thus not an "arrestee" within the meaning of the statute, Sviridov argues he was entitled under subsection (c) of Penal Code section 851.8 to petition for a finding of factual innocence (as the trial court so found), but that its admissibility provision is limited in application to arrestees. Sviridov, however, alleges in his complaint (and states in his opposing summary judgment declaration as well) that he and his wife were arrested in connection with the March 23, 2006 incident, and we accept as true that allegation for purposes of City's demurrer. Even if we were to disregard Sviridov's allegation of his arrest, we would decline to interpret Penal Code section 851.8, subdivision (i) in a manner to exclude from its reach findings of factual innocence made in favor of a person in Sviridov's position who was not actually arrested, but otherwise charged in an accusatory pleading that was later dismissed. (Pen. Code, § 851.8, subd. (c).)
2. Any Cause of Action Based on the November 2007 Termination is Barred by Collateral Estoppel
The foregoing conclusion is dispositive on City's demurrer as to Sviridov's fifth cause of action, which, as stated, alleges only his termination was without cause due to the finding of factual innocence. But assuming that cause of action claim extends to denial of other protections due him with respect to his November 2007 termination (i.e., that the Commission should have given him pretermination or posttermination "name clearing" hearings on the merits of the claims that led to his first termination), we squarely addressed those contentions in connection with his appeal of the trial court's denial of his petition for writ of mandate. (Sviridov v. Civil Service Commission, supra, D055109.) There, we held following Commission's reinstatement decision, Sviridov was no longer subject to the loss of any government benefit, and having been fully restored to his prior position, he could not claim further proceedings were needed to protect any constitutionally cognizable interest. (Ibid.) We also held Sviridov, who was afforded an opportunity to challenge his November 2007 termination by way of the civil service proceeding in which he prevailed, was not entitled to any statutory rights, including under the Bill of Rights Act. (Ibid.)
Sviridov is bound in this action by the adverse administrative findings. (See Schifando v. City of Los Angeles, supra, 31 Cal.4th at pp. 1089, 1090 [judicial economy is served by giving collateral estoppel effect to appropriate administrative findings]; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 76; Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477; Imen v. Glassford (1988) 201 Cal.App.3d 898, [giving preclusive effect to a ruling in a prior administrative proceeding in a subsequent fraud action].) "Issue preclusion prevents 'relitigation of issues argued and decided in prior proceedings.' " (Castillo, at p. 482, citing Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Smith v. Exxon Mobile Oil Corp (2007) 153 Cal.App.4th 1407, 1413-1414.) An issue is actually litigated when it is properly raised, submitted for determination, and is determined. (Castillo, 92 Cal.App.4th at p. 482.) In Castillo, a public employee appealed his discharge with the civil service commission and subsequently was denied mandate. (Castillo, at pp. 480-481.) The Court of Appeal held those determinations in the administrative proceeding barred his claims as to the wrongfulness of his discharge in his subsequent FEHA action. (Id. at pp. 481-482.)
Sviridov's claim that he was denied procedural due process with respect to his November 2007 termination raises precisely the same issues he seeks to raise in this case. Allowing Sviridov to relitigate the wrongfulness of his November 2007 discharge or his right to a name clearing hearing would diminish the value of the administrative process and the Commission's decision, which was reviewed on appeal and is sufficiently final for collateral estoppel purposes. (Mueller v. J.C. Penny Co. (1985) 173 Cal.App.3d 713, 719 [conviction that had been reviewed on appeal was sufficiently final for collateral estoppel purposes].) Under the circumstances, our prior opinion is binding on any possible cause of action or claim of due process violation arising from Sviridov's first termination. (See Gales v. Superior Court (City of Pasadena) (1996) 47 Cal.App.4th 1596, 1603 (Gales) [issues decided in police officer's mandamus action will be binding on other actions, including those authorized by the Bill of Rights Act].) D. Ninth Cause of Action Relating to Sviridov's October 2008 Termination
The question remains whether Sviridov can assert any other potential cause of action arising from his October 2008 termination, in which he contends he was denied the procedural protections required by the municipal code (advance notice of the charges, an opportunity to respond, and notice of the right to representation), as well as a Skelly hearing before his termination. Our prior opinion did not extend to Sviridov's rights and remedies relating to his October 2008 termination.
Respondents contend Sviridov cannot make out a cause of action because (1) it is barred for Sviridov's failure to comply with the Government Claims Act; (2) Sviridov did not pursue a Code of Civil Procedure section 1094.5 administrative writ and thus did not exhaust administrative remedies; City has immunity under Government Code sections 820.2 and 821.6 and Civil Code section 47; and (3) his second termination did not put his "good name, reputation, honor, or integrity" at stake, and thus he was not entitled to an opportunity to be heard. Respondents finally argue that Sviridov's October 2008 termination was not governed by Commission rules, as Sviridov had voluntarily resigned and was no longer a Department employee.
1. Sviridov May Amend His Complaint to Allege a Cause of Action under the Bill of Rights Act
With respect to the October 2008 termination, Sviridov specifically describes in his complaint the correspondence leading up to Department's decision, including its October 2, 2008 letter stating that his " '[f]ailure to return to work will be considered job abandonment and result in the processing of your resignation per Department Policy 9.17.' " Sviridov then alleges that "in the 14 days between the time [he] filed his writ petition and before, [sic] his request for a TRO came to hearing, the Police Department had again fired [him], this time for refusing to show up to work as ordered." He attaches a supervisor's employee separation reporting form signed by Captain Long, on which Long identified Sviridov's reason for leaving as "discharge." This form provided Captain Long with the option of checking a box indicating that Sviridov had "quit" but he did not choose that option. Thus, notwithstanding Department having notified Sviridov that it was entitled to treat his absence as a resignation, it characterized its actions as a discharge or termination, not a voluntary resignation.
In the Bill of Rights Act, the Legislature intended to provide basic rights and protections, including an opportunity for an administrative appeal, to a peace officer against whom disciplinary or punitive action is taken. (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 320; White v. County of Sacramento (1982) 31 Cal.3d 676, 682; James v. City of Coronado (2003) 106 Cal.App.4th 905, 909; Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209, 1220; Gov. Code, § 3304, subd. (b).) The various procedural protections " 'balance the public interest in maintaining the efficiency and integrity of the police force with the police officer's interest in receiving fair treatment.' " (Mays, at p. 320.) They are additional to the constitutional procedural due process that must be afforded an officer before being deprived of any significant property interest in his or her employment under Skelly. (Mays, at p. 321, fn. 6.)
The Bill of Rights Act makes it "unlawful for any public safety department to deny or refuse to any public safety officer the rights and protections guaranteed to him or her" (Gov. Code, § 3309.5) and permits an officer to bring an action in superior court for "appropriate injunctive or other extraordinary relief" — not damages — to remedy violations. (Gov. Code, § 3309.5, subds. (b), (c); Gales, supra, 47 Cal.App.4th at p. 1602.) Its protections extend to "actively employed police officers or officers whose employment is being or has been terminated by the police department." (Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 417-418.) The superior court is vested with initial jurisdiction over any proceeding for an alleged violation (Gov. Code, § 3309.5, subd. (c)), and has broad discretion to fashion an appropriate remedy under the Act. (Moore v. City of Los Angeles (2007) 156 Cal.App.4th 373, 381; Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 203-204; City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506, 1516.)
On City's demurrer, we must accept Sviridov's allegations that Department fired him in October 2008 without providing any required procedural protections, including a Skelly hearing. Those allegations are not contradicted by the Department documentation attached to the third amended complaint, which identifies Sviridov's absence as resulting from discharge. Because a cause of action for injunctive or extraordinary relief under the Bill of Rights Act is not one for "money or damages," Sviridov does not have to meet Government Claims Act prefiling requirements. (Gov. Code, § 905, 905.2.) We conclude the court should have granted Sviridov leave to amend his complaint to state a cause of action for violation of the Bill of Rights Act, and given an opportunity to request the legally available relief for such violation. The administrative exhaustion requirement would not apply if Sviridov were to proceed under Government Code section 3309.5. (Moore v. City of Los Angeles, supra, 156 Cal.App.4th at p. 382.)
City requests that we take judicial notice of section 9.17 of Department's policy manual as to absences from duty. The section provides that Department "may" process a three-day absence of duty without leave as a resignation. It presents a factual question whether Department in fact treated Sviridov's absence as a resignation or termination, as City's own document appended to Sviridov's complaint characterizes the absence as a discharge. Even assuming we may take judicial notice of the manual, we conclude it does not contradict Sviridov's allegation that he was fired in October 2008.
We deny City's request for judicial notice of portions of the San Diego City Charter, the city attorney policy, and excerpts from Sviridov's deposition. None of these items was presented to the trial court. (DiCola v. White Brothers Performance Products, supra, 158 Cal.App.4th at p. 676.) Additionally, they are not necessary to our resolution of Sviridov's appeal. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) We grant judicial notice of Sviridov's pleadings and trial brief in his criminal case (Evid. Code, § 452, subd. (d)), though those items do not change our resolution of Sviridov's appeal. Sviridov has asked us to take judicial notice of certain matters, including pleadings filed by City or Sviridov, a transcript of Sviridov's sentencing hearing in his criminal case, and the order reversing his criminal conviction and ordering a new trial. Only one of the items, City's response to Sviridov's objections to its request for judicial notice in support of its demurrer to the third amended complaint, was before the trial court in this case. We deny Sviridov's request for judicial notice of items that were not before the trial court in connection with City's demurrer or summary judgment motion. (DiCola, at p. 676.) The remaining item does not change our resolution of Sviridov's appeal
2. Sviridov May Amend His Complaint to Seek a Writ of Mandate
Sviridov's ninth cause of action can also be construed as a petition for writ of mandate to challenge Department's administrative findings (Code Civ. Proc., § 1094.5) and compel it to provide him required constitutional due process protections, including a posttermination Skelly hearing, in connection with his October 2008 termination. (Code Civ. Proc., § 1085; see Mays v. City of Los Angeles, supra, 43 Cal.4th at p. 321, fn. 6; City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 870.) A petition for traditional mandate compels "performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station . . . ." (Code Civ. Proc., § 1085; see Dinuba, at p. 868; People v. Picklesimer (2010) 48 Cal.4th 330, 339-340.) Such a writ petition seeks to enforce a mandatory and ministerial duty to act on the part of a public agency. (Picklesimer, at p. 340 [Code of Civil Procedure section 1085 writ is available to compel public agencies to perform acts required by law]; see Los Angeles County Professional Peace Officers' Assn. v. County of Los Angeles (2004) 115 Cal.App.4th 866, 869.) " 'Generally, a writ will lie when there is no plain, speedy, and adequate alternative remedy; the respondent has a duty to perform; and the petitioner has a clear and beneficial right to performance.' " (Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 583-584.)
City concedes that a writ of mandate was Sviridov's exclusive remedy, but argues it should have been a Code of Civil Procedure section 1094.5 writ brought against the Commission. We need not decide at this stage whether Sviridov's writ remedy is so limited. City was required to afford Sviridov the procedural protections under the Bill of Rights Act and Skelly. (See Mays v. City of Los Angeles, supra, 43 Cal.4th at p. 321, fn. 6; e.g., Moore v. City of Los Angeles, supra, 156 Cal.App.4th at p. 385; Crawford v. City of Los Angeles (2009) 175 Cal.App.4th 249, 251 [Government Code section 1094.5 writ brought against city and police chief challenging guilty findings of misconduct and an administrative decision to terminate him without pay].) We simply hold that Sviridov should be given an opportunity to amend his complaint to seek appropriate mandamus relief.
3. Governmental Immunity
We do not accept City's argument that it has governmental immunity for "anything related to" the Commission hearing or anything that Sviridov can possibly plead in his ninth cause of action, including its decision not to conduct any such hearing. In particular, City argues immunity applies to "all claims based upon the investigation or processing of [Sviridov's] termination" and this includes anything it "should have done." (Bold emphasis omitted.) But immunity pursuant to Government Code sections 820.2 or 821.6 only limits liability for specified acts and injuries, and will not shield public employees for violating specific duties required of them, including under the Bill of Rights Act.
Government Code section 820.2 provides for the discretionary immunity of the act or omission of a public employee only where "the act or omission was the result of the exercise of the discretion vested" in the employee. (Conn v. Wester Placer Unified School Dist. (2010) 186 Cal.App.4th 1163, 1178.) The section "is concerned with limiting government liability for an injury, which is defined in [Government Code] section 810.8 as 'death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.' " (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 867.) Such immunity is also reserved for quasi-legislative policy decisions; it has been rejected for lower-level, "operational" decisions that merely implement an already formulated policy. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1051.)
Government Code section 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."
The injury alleged by Sviridov in his ninth cause of action — due process violations stemming from City's failure to provide him with procedural protections as to his October 2008 termination — does not fall within the narrow meaning of injury in Government Code section 820.2. (Accord, City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 867.) We have already concluded that Sviridov is not entitled to seek damages; his viable causes of action are to compel City to perform express statutory duties. (Ibid.) Further, accepting the truth of allegations that Sviridov, a permanent employee, was fired, his supervisors had no discretion to terminate him without a posttermination hearing under Skelly, supra, 15 Cal.3d 194. City's decisions concerning whether or not it would offer Sviridov protections upon his termination are the sort of ministerial decisions that fall outside the immunity provided by Government Code section 820.2.
Government Code section 821.6 grants immunity to public employees for "instituting or prosecuting any judicial or administrative proceeding within the scope of his employment . . . ." (See Conn v. Wester Placer Unified School Dist., supra, 186 Cal.App.4th at p. 1178.) Immunity under this statute, which applies to police officers, is dependent on how the injury is caused. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 757.) Sviridov cannot state tort causes of action based on his October 2008 firing. Further, Sviridov's injury is his deprivation of due process as a result of City's inaction; this did not result from the institution of judicial or administrative proceedings or from actions taken in preparation for formal proceedings such as an investigation. We are not persuaded that immunizing defendants under the circumstances furthers the public policy concerns underlying Government Code section 821.6, or that the question is appropriate on demurrer. (Accord, Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 889.)
4. Judicial Estoppel is Inapplicable
Nor do we accept City's argument that Commission rules did not govern Sviridov's October 2008 termination, and that his ninth cause of action is barred by judicial estoppel due to Sviridov's inconsistent position below — made in a supporting declaration filed with his unsuccessful request for a temporary restraining order — that he was a private citizen at the time. In support of its demurrer, City conceded one of the elements of judicial estoppel was missing in that Sviridov did not succeed on that particular claim, but it maintained his success was unnecessary under the principles of Thomas v. Gordon (2000) 85 Cal.App.4th 113.
We have previously held that the equitable doctrine of judicial estoppel should be applied only when the person against whom it is asserted " 'was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true).' " (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1246.) Absent success, the later position introduces no risk of inconsistent court determinations and thus poses little threat to judicial integrity. (Ibid.) In Tuchscher, we declined to follow Thomas because, unlike Thomas, where the appellant egregiously sought to manipulate the legal system, there was no indication the respondents had gained any advantage in the present action by virtue of the inconsistent position taken in the prior matter. (Tushscher, at p. 1246.) Such is the case here. Judicial estoppel is not a bar to the viable causes of action stemming from Sviridov's October 2008 termination.
II. Summary Judgment
A. Governing Summary Judgment Principles and Standard of Review
Our Supreme Court described a party's burdens on summary judgment or adjudication motions as follows: "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. [Citation.] 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. . . . [¶] [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question." (Aguilar, supra, 25 Cal.4th at pp. 850-851.)
We review the trial court's decision to grant summary judgment de novo. (Johnson v. City of Loma Linda, supra, 24 Cal.4th at pp. 65, 67-68.) We review the court's ruling not its rationale, and thus are not bound by its stated reasons for granting summary judgment. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.) B. McDonnell Douglas Burden Shifting Test
"In California, courts employ at trial the three-stage test that was established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802 . . . to resolve discrimination claims . . . . [Citation.] At trial, the employee must first establish a prima facie case of discrimination, showing ' " 'actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a [prohibited] discriminatory criterion . . . " ' " ' [Citation.] Once the employee satisfies this burden, there is a presumption of discrimination, and the burden then shifts to the employer to show that its action was motivated by legitimate, nondiscriminatory reasons. [Citation.] A reason is ' "legitimate" ' if it is 'facially unrelated to prohibited bias, and which if true, would thus preclude a finding of discrimination.' [Citation.] If the employer meets this burden, the employee then must show that the employer's reasons are pretexts for discrimination, or produce other evidence of intentional discrimination." (Reid v. Google, supra, 50 Cal.4th at p. 520, fn. 2, italics omitted, quoting Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354358 (Guz).) The McDonnell Douglas framework also applies to workplace retaliation claims. (Guz, at pp. 354-355; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155 (Sada).)
This court recently reviewed operation of the McDonnell Douglas test in the summary judgment context: " ' "[T]he McDonnell Douglas test was originally developed for use at trial [citation], not in summary judgment proceedings. 'In such pretrial [motion] proceedings, the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. In short, by applying McDonnell Douglas's shifting burdens of production in the context of a motion for summary judgment, " ' " the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury." ' . . . Thus, ' "[a]lthough the burden of proof in a [discrimination] action claiming an unjustifiable [termination] ultimately rests with the plaintiff . . . , in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff's right to prevail on a particular issue. . . . In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion. . . . " ' " ' " (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 309, quoting Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343-344.)
Whether judgment as a matter of law is appropriate will depend on factors including " ' " the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case. " ' " (Sandell v. Taylor Listug, Inc., supra, 188 Cal.App.4th at p. 309, quoting Guz, supra, 24 Cal.4th at p. 362.) C. Sviridov's Causes of Action for National Origin Discrimination and Retaliation
1. Contentions
Sviridov does not initially engage in a traditional summary judgment analysis, discussing City's evidence and burdens and his responsive evidence. Rather, claiming the trial court erroneously applied standards for at-will employees, he advocates for application of a modified version of the McDonnell Douglas test for permanent civil service employees such as himself, who are subject to statutory protections or other standards upon termination. (S.D. City Charter, § 129; S.D. Mun. Code, § 23.1205.) He argues that in such cases, the second prong of the McDonnell Douglas test is "designed by statute" — i.e., City's Charter and the Municipal Code — and requires the court to determine whether the police officer "actually committed the act" or misconduct resulting in termination. Under Sviridov's proffered analysis, "[i]t doesn't matter if his Lieutenant or Captain or Assistant Chief or Chief thought he did it, or believed in good faith that he did[,] [t]he question is whether he actually committed misconduct, based on the evidence presented at the hearing before the . . . Commission." (Italics omitted.)
Sviridov maintains the sole purpose of judicial review is to assure the employee was discharged for cause. Applying the standard he advocates, he argues because he was "deprived of his right to a name clearing hearing" by the Commission at the "urging" of Department and the city attorney, his termination was without cause as a matter of law. He asks us hold "as a matter of law of the case" that City is collaterally estopped from asserting it fired him for good cause because Sviridov was found factually innocent and City did not appeal that decision.
Finally, Sviridov contends that even using the "erroneous" McDonnell Douglas "good faith" or "reasonable belief" standard, the trial court erred because his evidence raises a reasonable inference of pretext on the part of Department in terminating him. He asserts his discriminatory treatment in the six years during his employment was undisputed, as was the fact he was found factually innocent by a court. He argues a jury could reasonably conclude the Department, and especially those in its top tiers, knew of Sviridov's prior complaints of discrimination and did not truly believe Sviridov lied about striking his daughter, but rather terminated him because he "stood up against discrimination, complained, refused to be bullied, and therefore was a troublemaker." Sviridov argues a triable issue of fact is raised by his sworn declaration averring he told Captain Long he was innocent and being retaliated against for complaining about racial and ethnic discrimination.
2. The McDonnell Douglas Framework Applies
We perceive no basis to hold that a civil servant's FEHA causes of action for national origin discrimination and retaliation should be subject to any different trial or summary judgment standard than private at-will employees. The McDonnell Douglas framework is not intended to be " 'rigid, mechanized, or ritualistic' " (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1750), but that principle refers to the fact that the elements of a plaintiff's prima facie case may vary according to the differing factual situations. (Ibid.) Nor are we persuaded that proper application of the McDonnell Douglas framework — under which the trier of fact looks for evidence of an employer's prohibited motives for taking an adverse employment action (Guz, supra, 24 Cal.4th at pp. 355-356; King v. United Parcel Service (2007) 152 Cal.App.4th 426, 433-434) — in this case requires consideration of the procedural protections of the Municipal Code or a Commission decision as to whether or not Sviridov actually committed misconduct.
On summary judgment, the requirement that City have cause for Sviridov's termination from employment (S.D. Mun. Code, § 23.1202) bears only on City's burden to show it had legitimate reasons — that is, reasons constituting cause — for Sviridov's termination. With respect to Sviridov's November 2007 termination, City's proffered reason was that Sviridov's commanding officer believed he had lied to internal affairs investigators. In his opposing summary judgment papers, Sviridov does not dispute that untruthfulness during an internal affairs interview is grounds for termination. With regard to his October 2008 termination, City's stated reason was Sviridov's failure to report to work in disregard of a direct order to do so. Sviridov does not challenge the proposition that such a failure to report or comply with a direct order is sufficient cause for termination.
Sviridov's attempt to advocate a modified McDonnell Douglas approach for his case is, in substance, another effort to place his finding of factual innocence before a trier of fact. The purpose of the summary judgment procedure is to determine whether there are disputed factual issues requiring the process of a trial. (Aguilar, supra, 25 Cal.4th at p. 843.) Even assuming we were to adopt his unique McDonnell Douglas test, summary judgment would nevertheless be proper because as we have already explained, the superior court's factual innocence finding is not competent evidence available for consideration by the trier of fact at trial.
3. Sviridov's Evidence Does Not Raise a Rational Inference That the Real Reason for His Termination was Prohibited Discrimination based on his Russian Heritage or Retaliation for His Complaints of Discrimination
As we have explained, as the party moving for summary judgment, the burden rested with City to negate Sviridov's right to prevail. (Sada, supra, 56 Cal.App.4th at p. 150.) City was permitted to proceed directly to the second step of the analysis and present competent, admissible evidence of nondiscriminatory or nonretaliatory reasons for its challenged employment action. (Guz, supra, 24 Cal.4th at p. 357.) If City's explanation was creditable on its face, Sviridov had "the burden to rebut this facially dispositive showing by pointing to evidence which nonetheless raises a rational inference that intentional discrimination [or retaliation] occurred." (Ibid.) Very little evidence of the defendant's discriminatory [or retaliatory] intent is necessary to defeat summary judgment. That is, "summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff." (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 283.)
City's undisputed evidence (discussed ante in part II(C)(2)), demonstrated specific and legitimate, facially nondiscriminatory and nonretaliatory reasons for its decision to terminate Sviridov both in November 2007 and October 2008. Accordingly, to meet his burden and avoid summary judgment, Sviridov "must offer substantial evidence that the employer's stated reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination." (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1004-1005 (Hersant); see also Sandell v. Taylor-Listug, Inc., supra, 188 Cal.App.4th at p. 314; Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1108-1112 [applying McDonnell Douglas standards to FEHA retaliatory termination claim].) He "must do more than raise the inference that the employer's asserted reason is false. '[A] reason cannot be proved to be "a pretext for discrimination" unless it is shown both that the reason was false, and that discrimination was the real reason.' " (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003 [affirming summary judgment for employer because there was no evidence to support a finding that the employer's dissatisfaction with plaintiff's performance was pretextual], quoting St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 515.) " ' " The ultimate question is whether the employer intentionally discriminated, and proof that 'the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct.' . . . In other words, '[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination. ' " ' " (Arteaga v. Brink's, Inc., supra, 163 Cal.App.4th at p. 343; accord, Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 146147.)
Sviridov does not present or point to competent substantial responsive evidence (Hersant, supra, 57 Cal.App.4th at pp. 1004-1005; Loggins v. Kaiser Permanente Intern., supra, 151 Cal.App.4th at p. 1113) supporting a rational inference that intentional discrimination on the basis of his national origin, or retaliation for his complaints of discrimination, was the real reason for either termination. On appeal, Sviridov points to the finding of factual innocence, which is inadmissible for the reasons explained ante in part I(B)(2). He questions why he was ordered back to work if Department personnel truly believed he was guilty. He asserts Lieutenant Shaw, Captain Long, Chief Bryden and Chief Landsdowne were not honestly evaluating the evidence because their memos were "obvious[] cut and paste jobs." He points to evidence of his EEO complaints and all of the assertedly false accusations made against him, which are outside any applicable limitations period. He asserts that the evidence shows he informed Captain Long about his EEO complaints.
Even if the trier of fact could consider Sviridov's innocence of the criminal charges leveled against him for purposes of Sviridov's discrimination and retaliation claims, "the law does not condemn managerial mistakes so long as his employer honestly believed the reasons for his termination." (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 444.) Department's decision to terminate Sviridov in November 2007 was made before Sviridov obtained his factual innocence finding in 2008, and nothing in Sviridov's papers contradicts the evidence that each of the decisionmakers had reached the conclusion that Sviridov had lied to investigators, warranting his termination.
We further dispose of Sviridov's claim of retaliation on grounds he cannot demonstrate a triable issue of fact as to the required nexus between his assertedly protected action and the alleged retaliation. To establish a prima facie case of retaliation under FEHA, a plaintiff must show, among other elements, a causal link existed between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) The required link " ' " may be established by an inference derived from circumstantial evidence, 'such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision. ' " ' " (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70.) Case law suggests the employer's action must followwithin a relatively short time . . . " ' " (Loggins v. Kaiser Permanente Intern., supra, 151 Cal.App.4th at p. 1110, fn. 6.)
For example, in Loggins, an employee established a sufficient causal link to defeat summary judgment by showing the employer terminated her one week after she made a discrimination complaint against the employer. (Loggins, supra, 151 Cal.App.4th at p. 1110.) In Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, a four-month interval between the protected activity and adverse employment action established the necessary causal link. (Id. at pp. 478, 479.)
Here, the record does not support Sviridov's assertion that Captain Long knew of his prior EEO complaints. Sviridov's declaration only states he told Captain Long about his "long history as a victim of discrimination . . . ." Further, there is otherwise no sufficient temporal proximity to or connection between all of the past incidents, which occurred between 2001 and 2006, and Captain Long's decision in May 2007 to recommend Sviridov's termination in November 2007. Nor is there evidence establishing a causal nexus between these incidents and Sviridov's October 2008 termination.
The bare fact Captain Long was aware of the history of derogatory remarks against Sviridov permits no inference that Captain Long's true motivation for terminating him was retaliation. Sviridov's summary judgment declaration stated that it is his belief that his EEO complaints were a motivating factor in his termination. But Sviridov's subjective beliefs and his self-serving statements as to the defendants' motivations do not create a genuine issue of fact so as to defeat summary judgment. (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 444.) His evidence is thus insufficient to raise a triable issue as to his prima facie case of retaliation.
Viewing the evidence in the light most favorable to Sviridov as we must, it is apparent that Sviridov cannot meet his burden to raise a triable issue of material fact as to the existence of circumstances that would suggest a proscribed discriminatory or retaliatory motive on the part of the persons who made the decision to terminate him. There is no evidence any of the decisionmakers were at all involved in the prior taunts and negative evaluations to which Sviridov was subjected, and their declarations stated they were not aware such events had occurred or were occurring. Indeed, Sviridov admitted in his deposition that, other than their involvement in his firing, he had no evidence any of the persons involved in terminating him had ever discriminated against anyone of Russian ancestry. Sviridov does not refer us to any competent evidence that reasonably calls into question the validity of defendant's reasons for terminating him. His cited evidence does not demonstrate " ' " such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' . . . and hence infer 'that the employer did not act for the [asserted] non- discriminatory reasons. ' " ' " (Sandell v. Taylor-Listug, Inc., supra, 188 Cal.App.4th at p. 314.) E. Sviridov's Third Cause of Action for Hostile Work Environment/Harassment
" 'One form of employment discrimination is harassment on the basis of race or national origin.' " (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876, quoting Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129.) Government Code section 12940, subdivision (j)(1) makes it unlawful for "an employer . . . or any other person, because of . . . national origin [or] ancestry . . . to harass an employee." Government Code section 12940, subdivision (k) provides an employer must "take all reasonable steps necessary to prevent discrimination and harassment from occurring." (See Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 149.)
In challenging summary judgment on his third cause of action, Sviridov argues he "presented the lower court with an abundance of incidents of harassment that occurred over his almost seven years with [Department]" and "filed three EEO complaints" over the harassment. Sviridov asserts some of the harassment was witnessed by his supervisors, including some occasions when Sviridov was called RPS, and other times he told them about it.
As recounted above, many of the events of alleged harassment occurred between 2001 and 2006. In its reply separate statement, City points to Sviridov's concession that he could not recover damages for events alleged in his complaint predating the one-year statute of limitations applicable to his first FEHA complaint. A FEHA plaintiff ordinarily cannot recover for acts occurring more than a year before the filing of an administrative complaint of discrimination. (Gov. Code, § 12960, subd. (d); Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 810, 812.) Sviridov filed his first DFEH complaint on January 31, 2008, and a second DFEH complaint on March 23, 2009. Accordingly, recovery for the majority, if not all, of the alleged harassment is barred by the statute of limitations. (Thompson v. City of Monrovia, supra, 186 Cal.App.4th at p. 879.)
In the pleading referenced by City, Sviridov had argued he set forth the older instances of harassing conduct as a pattern or practice of discriminatory intent. Sviridov does not repeat that claim on appeal however. In any event, because Sviridov cannot identify at least one act of national origin harassment occurring within the one-year period preceding his complaint, the continuing violation doctrine cannot save his hostile work environment claim.
DISPOSITION
The judgment as to the trial court's order sustaining the demurrer to Sviridov's ninth cause of action is reversed. The matter is remanded with directions that the trial court grant Sviridov leave to amend his complaint to state a cause of action for injunctive or other appropriate relief under the Public Safety Officers Procedural Bill of Rights Act and to seek a writ of mandate under Code of Civil Procedure sections 1094.5 and/or 1085. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.
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O'ROURKE, J.
WE CONCUR:
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McCONNELL, P. J.
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HALLER, J.