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Ex-San Bernardino City Attorney’s Action Against City for Retaliation Is Reinstated
C.A. Acts on Basis of May 23 State Supreme Court Decision
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal—fresh on the heels of a May 23 California Supreme Court opinion that changes the posture of the law on whistleblower retaliation—has reinstated an action brought by the then-city attorney of San Bernardino against the city and the City Council alleging persistent harassment based on his reports to the lawmaking body of unlawful activity, such as its violations of the Brown Act.
Justice Richard D. Huffman authored the opinion, filed Friday. It was not certified for publication.
San Bernardino Superior Court Judge Gilbert G. Ochoa had sustained demurrers, without leave to amend, to Gary Saenz’s second amended complaint. The first cause of action alleged violations of Labor Code §1102.5(b) (retaliation in response to whistleblowing); the second cause of action was for purported breaches of §1102.5(c) (retaliation in response to the refusal to comply with illegal orders).
Ochoa held that the first cause of action did not state facts showing that reports had been made to an entity other than the City Council, which was itself the alleged culprit along with then-Mayor John Valdivia, and the second cause of action “exceeds the permissible scope of amendment following the Court’s order on the prior demurrer.”
City’s Contention
Arguing for affirmance, the city set forth in its Oct. 20, 2022 brief on appeal, with respect to the first cause of action:
“As recognized by the trial court, what qualifies as ‘protected activity’ has been heavily refined by precedent….Applicable here, government agency employees who report illegal activity directly to their employer (rather than to a separate public agency) are protected by Section 1102.5 only if the employer or supervisor is not the suspected wrongdoer….The underlying logic being an employee reporting illegal conduct directly to the perpetrator(s) of the illegal conduct does not make any ‘disclosure’—the recipient is already aware of his or her own supposed wrongdoing.”
On June 1, Div. One requested letter briefs, to be submitted by June 9, “addressing the impact, if any, of the Supreme Court’s ruling in People ex rel. Garcia-Brower v. Kolla’s, Inc.” The parties complied; oral argument took place on June 14.
Opinion in Kolla’s
In Kolla’s, the high court reversed a decision of Div. Two of the Fourth District Court of Appeal in which it was held that a cause of action could not be maintained by the labor commissioner on behalf of a bartender who had complained to the owner of a night club about unpaid wages and was fired as a result. Justice Goodwin H. Liu said, for a unanimous court:
“It is undisputed that the employer’s conduct was prohibited by the Labor Code. The question here is whether a report of unlawful activities made to an employer or agency that already knew about the violation is a protected “disclosure” within the meaning of section 1102.5(b). We hold it is.”
He went on to say:
“The Court of Appeal held that the word ‘disclosure’ means ‘the revelation of something new, or at least believed by the discloser to be new, to the person or agency to whom the disclosure is made.’…
“Although the word ‘disclose’ often refers to sharing previously unknown information, the word also means bringing into view in a particular context a type of information to which the discloser tends to have special access.”
Reversal Ordered
Huffman found that Ochoa “identified the appropriate pleading standard”: a heightened one, requiring particularity in the allegations, where a governmental entity is sued based on statutory liability. But, he declared, “in light of the Supreme Court’s holding” in Kolla’s, the judge erred in applying that standard, requiring reversal as to the first cause of action.
Ochoa did not abuse his discretion, however, in disallowing the second cause of action given that it “identifies an entirely separate basis for the adverse employment action based on entirely different conduct” and the addition of such a claim was not authorized in the order granting leave to amend after demurrers were sustained to the previous pleading, Huffman wrote.
The case is Saenz v. City of San Bernardino, D080378.
Previous Litigation
Saenz became city attorney in a 2013 recall election, and was elected to a four-year term in 2015, commencing in March 2016. While he and then-San Bernardino City Clerk Georgeann “Gigi” Hanna were in office, the City Council voted to reduce their pay—slashing Saenz’s from $184,700 a year to $100,000 and lowering Hanna’s from $128,000 per annum to $52,500.
The office-holders sued, and San Bernardino Superior Court Judge David Cohn held that a pay-cut of the elected officials during the terms to which they were elected was impermissible. The city did not appeal the ruling.
Saenz and Hanna then brought their action for retaliation. Hanna was not a party to Saenz’s appeal from the dismissal of his whistleblower action.
In his opening brief on appeal, Saenz argued:
“In June 2019, the City Council in retaliation illegally reduced the salaries of the City Attorney in an attempt to undermine the ability to carry out his duties and to force him from his position.”
Saenz was unable to run for another term, and is now on voluntary inactive State Bar status. Voters in San Bernardino approved a Charter amendment, proposed by the City Council, rendering the position of city attorney appointive.
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