GINA BROWNE PARTNER - Los Angeles County Bar Association · Labor and Employment Law Symposium • CELA Member Victories – Tales from the Trenches, CELA, 22nd Annual Employment

12400 WILSHIRE BOULEVARD SUITE 1100 LOS ANGELES, CA 90027 P. 310.207.8500 F. 310.207.8515 [email protected]

GINA BROWNE PARTNER


Gina Browne is a partner at the Feldman Browne Olivares law firm. Ms. Browne has devoted her entire practice to protecting the rights of California employees. Throughout her practice, Ms. Browne has successfully represented employees in employment disputes, including those involving discrimination, harassment, retaliation, wrongful termination in violation of public policy, and violations of the various medical, disability, and pregnancy leave and accommodation laws. Ms. Browne prides herself on her commitment to her clients and to making sure their voices are finally heard. Ms. Browne was an NCAA Division One conference champion long distance runner in college. After graduating, she was a competitive triathlete and runner and made the cover of Runner’s World magazine in November 2000. The same outstanding attributes that fueled her athletic success-hard work, endurance, perseverance and a single-minded focus-also equipped her to succeed in litigation. Drawing on these same traits, she diligently prepares and aggressively litigates her cases to achieve the best possible results for each of her clients, whether that means a quick settlement for maximum value or multi-million dollar jury verdict. Her hard work and dedication has earned her recognition as one of the top employee rights attorneys in California.

Honors and Awards • Named a Southern California Super Lawyer in 2013-2020 • Recognized in 2019 and 2020 by Best Lawyers in America for her work in Plaintiff’s Employment

Litigation • Named a 2013, 2018, and 2019 Top California Labor & Employment Lawyer by the Daily Journal • Honored as a 2014 Woman of Achievement by the Century City Chamber of Commerce • Finalist for CAOC’s 2012 Woman Trial Lawyer of the Year • Finalist for CAOC’s 2012 Street Fighter of the Year Award • Named a Southern California Rising Star in 2007-2012

Education and Bar Admissions • Loyola Law School, J.D., 2003

o Honors: Dean’s List (2002-2003) o Note and Comment Editor, Loyola of Los Angeles Entertainment Law Review

• Loyola Marymount University, B.A., 1993, magna cum laude

mailto:[email protected]



• Bar Admissions: o 2003 California State Courts and o United States District Court, 9th Circuit

Speaking/Training Engagements & Publications • Valuation of Discrimination/Retaliation Cases in Mediation, Los Angeles County Bar Association

(LACBA)’s 36th Annual Labor and Employment Law Symposium • A Primer for Bigger Verdicts, California Employment Lawyers Association’s (CELA) 27th Annual

Employment Law Conference • Presented at LACBA’s Trial Skills Workshop, May 2015 • Trainer at CELA’s Deposition Skills Seminar (October 2014) • Trainer at CELA’s Annual Trial College (June 2014; June 2015) • Proving Up Damages in Employment Cases: Developing a Compelling Emotional Distress Story

that Will Help Maximize Your Emotional Distress Award, CELA, 25th Annual Employment Law Conference

• Developing a Client’s Emotional Distress Story, CELA, Law Clerk Orientation • Employment: Year In Review – Important Case Law and Legislative Updates, Consumer Attorneys

of California (CAOC), 49th Annual Convention • The Year in Review: Recent Developments in Statutory and Case Law, LACBA’s 30th Annual

Labor and Employment Law Symposium • CELA Member Victories – Tales from the Trenches, CELA, 22nd Annual Employment Law

Conference • Simplifying The Medical Leave Case For Trial, Orange County Bar Association, Labor &

Employment Section • Discrimination and retaliation cases: Recent decisions expand the scope of evidence available to

employees. (The Advocate, April 2011 Issue) • Target Hiring To Reach a Target Audience, 23 Loy. LA Ent. L. Rev. 125 (2002)

Professional Associations and Committee Positions • California Employment Lawyers Association (CELA); member of CELA Legislative Committee • The Los Angeles County Bar Association’s (LACBA) Labor and Employment Law Section • Legal Eagles for Truth Justice and the American Way (LEFTJAW) • Consumer Attorneys of California (CAOC) • Consumer Attorneys of Los Angeles (CAALA)

Career Highlights • Brim v. International Union of Operating Engineers (Los Angeles Superior Court Case No.

BC445400), in which a Los Angeles jury awarded $5,500,000 ($4,500,000 for emotional distress damages) to Mr. Brim, who was retaliated against and wrongfully fired in violation of the Fair Employment and Housing Act (FEHA) for standing up for his female coworker who was being sexually harassed in the workplace and for refusing to lie about what he personally witnessed.

• Cordero-Sacks v. Housing Authority of City of Los Angeles (2011) 200 Cal.App.4th 1267 [the first appellate case in California holding that Government workers retaliated against for investigating possible false claims by their superiors under Gov. Code §12653 can sue under the California False Claims Act (CFCA).]


http://www.leefeldmanlaw.com/ADVOCATE_Employment_Law_Article.pdf

http://www.leefeldmanlaw.com/ADVOCATE_Employment_Law_Article.pdf

David P. Myers THE MYERS LAW GROUP, APC

9327 Fairway View Place, Suite 100 Rancho Cucamonga, CA 91730

909-919-2027 [email protected]

David P. Myers is the owner of The Myers Law Group, APC. For the past twelve years, the firm has represented employees and labor unions throughout Southern California. The firm currently has offices in Santa Barbara, Hollywood and Rancho Cucamonga. The firm’s civil litigation department is headed by attorney Ann Hendrix, while the appellate department is coordinated by attorney Doug Smith.

Prior to attending law school, Mr. Myers was a union organizer for the American Federation of Teachers. He received his undergraduate degree with honors from College of the Holy Names in Oakland, California. After graduating from the University of Missouri – Columbia, School of Law, Mr. Myers returned to his hometown of Santa Barbara, California. He was an associate with the law firm of Foley & Bezek which specialized in representing plaintiffs in complex business litigation, including toxic tort and lender liability class actions.

Prior to opening up his own practice, Mr. Myers served for six years as the head of the civil litigation department at the union-side labor firm of Levy, Stern and Ford. At Levy, Stern, and Ford, Mr. Myers was responsible for all of the firm’s civil litigation ranging from California’s wage and hour law, the Fair Employment and Housing Act (i.e. sexual harassment, discrimination, disability discrimination, etc.), class actions, and wrongful termination.

In addition to representing individual employees, Mr. Myers also represented various unions, including the American Federation of Teachers, California Teachers Association, Communications Workers of America, the International Union of Operating Engineers, the Southern California Allied Printing Trades Council, the Teamsters, and Foods Union, Local 2 (aka FU2).

Mr. Myers opened up The Myers Law Group, ACP, in 2008 to continue his practice of representing individual clients and the representation of various labor unions. Since opening his practice, the Myers Law Group, APC has represented various employees at trial as well as at the appellate level.

Mr. Myers and Mr. Smith were trial counsel for Hawkins/Kim v. City of Los Angeles. (2019) 40 Cal.App. 5th 384 The case was litigated to trial by Ann Hendrix. The appeal of Hawkins/Kim v. City of Los Angeles was handled primarily by Doug Smith.

Nancy YaffePartner

Los Angeles, CATel: 310.598.4160Fax: 310.556.9828

[email protected]

Nancy focuses her practice on labor and employment law counseling and litigation with an emphasis on problem

prevention.

Nancy defends all types of businesses against employee claims and lawsuits involving discrimination, harassment,

retaliation and wage-and-hour violations. She defends both single plaintiff and class or collective action matters. Her

clients include prominent southern California hotels, restaurants, retailers, as well as manufacturing, technology and all

types of service providing companies.

With the goal of helping clients prevent employment issues, she provides pre-litigation counseling and advice to clients

nationwide on employment-related issues including harassment, discrimination, ADA/disability compliance (including

leaves of absences, reasonable accommodations, and the interactive process), wage-and-hour issues (including

exempt classification analysis, overtime/meal break compliance, and pay audits), reduction-in-force planning and

WARN Act compliance. She also conducts training presentations on sexual harassment prevention, employee relations,

management training (and how to keep managers out of trouble), new legal developments and other timely employment

issues. Additionally, Nancy drafts and reviews client policies, agreements and handbooks to ensure legal compliance,

and conducts preventive audits and investigations into alleged workplace misconduct and pay practices.

Nancy also proudly serves as Co-Chair for the firm’s Women’s Initiative.

Client Resources

e-Book

Doing Business in California: A Guide for Employers

California Employment Law Blog

Nancy discusses a wide variety of legal challenges faced by California employers, including class actions, wage and

hour, discrimination, harassment and privacy issues, on the firm's California Employment Law blog.

Video Training

Nancy has developed video training modules that explain key requirements of California and Federal on topics such as

what supervisors need to know and wage and hour laws.

Watch previews of the videos and learn more about how to obtain them for your company on Nancy's Video Training

page.

Honors & Awards

• Named a California Trailblazer by The Recorder (2019)

• Named among the Los Angeles Business Journal's "Most Influential Women Lawyers" (2019)

• Named to the list of "Super Lawyers" for Employment & Labor in Southern California (2019,2020)

• Named in Southern California Women's Edition Super Lawyers (2020)

• Los Angeles Business Journal's Women Making a Difference Award Nominee (2014, 2015)

• L.A. Biz Women of Influence Award winner (2014)

• Named “Contributor with the Most Popular Article in the United States” by Mondaq (January 2014) and

"Contributor with the Second Most Popular Article in the United States" by Mondaq (February 2014) for her

article, "Want To Get Sued? Fire Someone and Say "You Aren't the Right Fit "

Before Fox Rothschild

Prior to joining the firm, Nancy was a partner in the Los Angeles office of Folger Levin & Kahn LLP. Before attending law

school, she worked in the entertainment and hospitality industries.

Beyond Fox Rothschild

Nancy is a dynamic and entertaining speaker who enjoys conducting management and employee training. She is also a

frequent presenter on HR and employment law issues to various HR organizations including the Los Angeles Hotels

Human Resources Association (LAHHRA).

Practice Areas

• Labor & Employment

• Employment Class Actions

• Employment Counseling, Policy Developments & Audits

• Employment Litigation

• Employment Training

• Hospitality

• Sexual Harassment Prevention Training

• Wage & Hour Law

Bar Admissions

• California

Court Admissions

• U.S. District Court, Central District of California

• U.S. District Court, Northern District of California

• U.S. District Court, Southern District of California

• U.S. Court of Appeals, Ninth Circuit

Education

• University of Southern California Gould School of Law (J.D., 1995)

• University of Southern California Gould School of Law (Graduate Certificate in the Study of Women and Men

in Society, 1995)

• University of California, Los Angeles (B.A., departmental honors, magna cum laude, Phi Beta Kappa, 1987)

Memberships

• California State Bar, Labor and Employment Section

• Legal Liaison, Los Angeles Hotels Human Resources Association (LAHHRA)

• Society of Human Resources Management (SHRM)

• Women Lawyers Association of Los Angeles

• Step Up Women's Network

Whistleblower Protections: Don’t Fire

the Messenger!Presented by:

Gina Browne, Feldman Browne OlivaresNancy Yaffe, Fox Rothschild LLP

David Myers, the Myers Law Group, APC

Whistleblowing in the News

• From politics and impeachment to #MeToo whistleblowing is a topical issue

• There isn’t just one whistleblowing statute in California, there are many

• The following slides set forth several of the whistleblowing and retaliation statutes

California Retaliation Statutes

• Gov. Code, §12940(h) [protects employees from retaliation for engaging in an activity protected by FEHA, for opposing any practices forbidden by FEHA, for participating in an investigation or for being perceived as a witness]

• Gov. Code, § 12940(m)(2) [protects employees from retaliation for requesting accommodation for a physical or mental disability, regardless of whether the request was granted]


• Gov. Code, § 12940 (l) [protects against retaliation for requesting religious accommodation]

• Gov. Code, §§ 12945 and 12945.2(l) [protects employees from retaliation for exercising rights under PDLL and CFRA]

• Labor Code, §1102.5 [protects employees from retaliation for reporting illegal conduct and/or refusing to participate in illegal conduct]


• Gov. Code, § 12653 [protects employees from retaliation for

engaging in lawful acts to stop conduct that violates the California

False Claims Act]

• Gov. Code, § 8547.8 [protects state employees against

whistleblower retaliation]

• Gov. Code, §§ 8547.10 and 8547.12 [protects employees of the

University of California and the California State University systems

from whistleblower retaliation]


• Labor Code, § 6310 [protects employees from retaliation for

filing a health & safety and/or workplace safety complaint]

• Health & Safety Code, § 1278.5 [protects employees from

retaliation for making a complaint or cooperating in an

investigation protected by § 1278.5]

• Labor Code, § 98.6 [protects employees from retaliation for

complaining of unpaid wages or participating in or filing a

complaint with the California Labor Commissioner]


• Labor Code, §§ 230, 230.1, 230.2, 230.5 [protect employees from

retaliation for taking time off for jury duty, court proceedings, or

retaliation against victims or crimes, domestic abuse, stalking]

• Labor Code, §1025 [protects employees from retaliation for taking

time off to enter drug or alcohol treatment program]

• Education Code, § 44110 [protects employees from retaliation for

disclosing improper government activities, including gross misconduct

or illegal, economically wasteful, inefficient, or incompetent activities]

• Labor Code, § 1197.5 [protects employees from retaliation for

discussing wages of others, inquiring about another employee’s wages,

or aiding or encouraging any other employee from exercising such

rights]


• When Does a Complaint to a Private Employer Reach the Level of

Protected Activity?

• When is the Employee’s Reasonable Belief Under Section 1102.5(b)

Reasonable?

• When Can Attorneys’ Fees (Under PAGA) be Applied to WhistleBlowing

Cases?

• What Constitutes a Complaint Sufficient to Trigger Section 1102.5 or

6310?

Frequently Litigated Issues in WhistleBlowing Cases

Types of Protected Activity

Active Conduct: Such as making/filing a complaint, disclosing information, or participating in an investigation.

Passive Conduct: Such as employees who speak out about discrimination, not on their own initiative, but by answering questions during another employee’s investigation.

Anticipatory Conduct: Labor Code §1102.5 was amended in 2014 to prohibit anticipatory conduct where the employer believes the employee may disclose unlawful activity even if s/he has not done so already.

Hypo #1 – Protected Activity

Sandy Server used to be a Restaurant Manager, but decided she could make more money just working weekend nights as a server in an upscale four-star restaurant. Sandy makes more money than the managers who manage her. She also has very little respect for their directions, since she believes she knows better (and in certain circumstances, she may be right).

Sandy complains to everyone about how inept her restaurant managers are. They don’t seat properly and disrupt the flow of service. They bark orders in an impolite manner. And they make servers take breaks early in the shift to avoid paying meal premium, which she thinks is cheap and unfair.

Sandy complains about these issues to the Regional HR Manager when she comes to visit. The Regional HR Manager looks into it and reports back to Sandy that the managers are acting well within their assigned duties, and while she may not agree with their management approach, she must follow it.

Sandy is angry, disruptive, and is terminated three months after her discussion with the Regional HR Manager for blowing up at a manager on the restaurant floor for sending another server home early but making her continue working, and walking off the job in a huff.

Hypo #1 – Protected Activity

Does Sandy’s complaint to the Regional HR Manager trigger an 1102.5 claim?

Change the facts: Sandy’s complaint is to an employer sponsored hotline, and no one at the restaurant knows for sure it was her. Is that sufficient to trigger an 1102.5 claim?

Change the facts: Instead of working at a four-star restaurant, Sandy works as a server at a University of California faculty dining facility, does that change the analysis?

Are attorneys’ fees available for this 1102.5 claim?

Hypo #1 - Protected Activity?

Labor Code 1102.5 (Standard for Reasonable Belief)

Under 1102.5(b), an employee is protected from retaliation for disclosing what s/he reasonably believes to be a violation of a specific statute, rule, or regulation. “[I]t is the good faith and reasonableness, not the fact of discrimination, that is the critical inquiry in a retaliation case.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.)

Labor Code 1102.5(c) (Standard for Refusal to Particiapte)

To be protected under 1102.5(c), an employee must show that the activity s/he refused to participate in would have actually “result[] in a violation or noncompliance with a statute, rule, or regulation”.

The employee must identify what specific activity he or she refused to participate in and what specific statute, rule or regulation would be violated by that activity. (Nejadian v. City of Los Angeles (2019) 40 Cal. App. 5th 703, 719.)

Labor Code 1102.5(c) (Who Decides?)

Who determines whether the activity complained of would result in a violation or noncompliance with a statute, rule, or regulation? The Court.

The jury then determines whether the plaintiff was retaliated against for refusing to participate in the activity. (Nejadian v. City of Los Angeles (2019) 40 Cal. App. 5th 703, 719.)

“Requires a showing that the activity in question actually would result in a violation or noncompliance with a statute, rule or regulation. That is a quintessentially legal question….because that is a question of law, the court is required to make the determination.”

Hypo #2 – Reasonable Belief

A Finance Manager at a car dealership notices that the loan application that is being submitted to him has the handwriting of two different people and is in different pen color. He is concerned that he recognizes the handwriting of one person as being his coworker. He knows that company policy prohibits employees from assisting in filling out credit applications.

After noticing the discrepancy, the Finance Manager approaches the employee whose handwriting it is. The employee confirms that the handwriting is his and that he was just helping the customer out as the customer was confused as to what his monthly income was. The Finance Manager reminds the employee of the company policy not to fill out the paperwork. The employee says that he will not do it again.


Did the employer believe that the employee had or might disclose to (1) governmental agency/law enforcement agency; (2) person with authority over the employee; or (3) an employee with the authority to investigate, discover or correct legal violations or non-compliance violation of or noncompliance with a local, state, or federal rule or regulation?

Did the employee provide information to or testify before a public body that was conducting an investigation, hearing, or inquiry violation of or noncompliance with a local, state, or federal rule or regulation?

If so, did the employee have reasonable cause to believe that the information disclosed was a violation or non-compliance?

The next week, the Finance Manager gets another credit application. When the Finance Manager approaches the salesperson, salesperson states the customer didn’t make enough money and so he told the customer to “leave that section blank.” The salesperson then inflated the customer’s income by including the customer’s spouse’s income despite that fact the spouse had bad credit, was not on the car loan and was not signing the credit application.

The Finance Manager brings the credit application to the General Manager, who says “well, it’s their household income, I think it’s ok…” The Finance Manager objects, and says, “I don’t think it’s correct, the credit application is just for him and it looks shady when my co-worker fills it out and I don’t want to be led out of here in cuffs.”



Does the Finance Manager have a reasonable belief that there is a violation of a specific statute, rule or regulation?

What factors could lead one to have a reasonable belief that there is a violation?

Hypo #2 – Reasonable Belief/Refusal to ParticpateThe next week, the Finance Manager is presented with another credit application with two different handwritings and learns from the salesperson that the income is inflated but that “they need to get the deal done” because he is a friend of the owner.

When the Finance Manager objects, and prior to sending it over to the General Manager, the owner of the dealership walks into the Finance Manager’s office and tells the Finance Manager that he can “either accept the application as it is, or he can pack his stuff, as he has heard that he is not a team player…’

The Finance Manager clears his desks and leaves.

Did the Finance Manager refuse to participate in an activity that would result in violation of or noncompliance with a local, state, or federal rule or regulation?

Hypo #2 – Reasonable Belief/Refusal to Particpate

Hypo #2 Continued – Protection for Family Members

The day after the Finance Manager leaves the dealership, he is told by his son that they also terminated the son.

He is informed that the only reason that the son had a job was because his dad was the Finance Manager.

Does the son have a retaliation claim? If so, under which statutes?

Hypo #3 - When is the employee’s reasonable belief under 1102.5(b) “reasonable?”

Shirley Sensitive is a veterinary technician. She is friendly with Doctor Dolly, one of her supervisors. Shirley house-and-pet sits for Dr. Dolly’s two dogs. Dr. Dolly has also come to Shirley’s home for house calls for her aged and beloved cat who is too scared to get into a carrier and come into the vet clinic. They send friendly texts and emails to each other consistently.

Shirley’s mother gets ill and her prior anxiety and depression resurface. She starts missing work. Dr. Dolly is very empathetic, sends her cards, comes to visit, and even attends Shirley’s mother’s funeral after she passes.


Then Dr. Dolly starts having a hard time because of a messy divorce involving infidelity by her spouse. Shirley is overwhelmed with her own loss and has no empathy for Dr. Dolly. When Dr. Dolly snaps directions to her at work, and tells her to move faster, Shirley’s feelings are hurt. When Dr. Dolly walks by her in a rush to get to a patient, and steps on her foot without saying “excuse me,” Shirley starts telling coworkers what a “*itch” Dr. Dolly is being. Yet she says nothing to Dr. Dolly.

Because Shirley is getting stressed at work which is exasperating her pre-existing anxiety and depression, she decides to go back to school. She asks to work evening shifts (part-time) to accommodate her school schedule. Her request is granted.

Hypo #3 -- When is the employee’s reasonable belief under 1102.5(b) “reasonable?”

Dr. Dolly feels a bit abandoned that Shirley is not working with her anymore, and has not been a good friend during her divorce. Tensions between them escalate at work. Shirley continues to complain to coworkers about Dr. Dolly, and her perceived “harassment” due to Dr. Dolly’s quick temper. When Dr. Dolly walks behind Shirley and bumps into her and doesn’t say “sorry,” that is the last straw. Shirley goes to the Hospital Manager and complains about perceived “harassment.”

Three months later, all part-time employees at the hospital, including Shirley, are laid off based on a corporate directive.


Is telling coworkers that Dr. Dolly is a “*itch” sufficient to trigger 1102.5(b)?

What about telling the Hospital Manager about perceived harassment?

Is Shirley’s belief that she was harassed (on the basis of her anxiety and depression), sufficient as a matter of law to support a 1102.5(b) cause of action? Should it be?

Does it matter that she never asked for any accommodation or time off?


What if Shirley also contacted the Vet Board and filed an anonymous complaint about Dr. Dolly’s treatment of a dog patient?

What if the complaint is not anonymous?

What if the complaint is totally bogus? What if the hospital thinks it was Shirley who filed the anonymous complaint, but it actually wasn’t? Is she still protected?


Does it make any difference that those corporate folks responsible for the layoff had no knowledge of Shirley’s complaint(s) about Dr. Dolly?

If Dr. Dolly was not involved at all?

Are attorneys’ fees available for this 1102.5 claim?

Remedies under Labor Code Section 1102.5

In Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, the court awarded the prevailing plaintiffs’ attorney’s fees under: (1) PAGA and (2) Code of Civil Procedure section 1021.5.

The court determined that a significant benefit was conferred on the public through the litigation (the benefit of receiving a fair and impartial hearing).

PAGA Exhaustion with LWDA

The City complained that the plaintiffs did not comply with the pre-filing notice requirements, citing Kahn v. Dunn-Edwards Corp., (2018) 19 Cal.App.5th 804 (Kahn).

In Kahn, the plaintiff referred to “my claims” regarding improper wage statements, and to a failure to pay “all of my earned wages.” The Kahn court stated that the plaintiff failed to give the LWDA or the employer proper notice of a representative claim.

Hawkins and Kim’s pre-filing notices were materially different than the Kahn notice. The Hawkins and Kim notices state that “officers” were being forced to change decisions and that managements actions included “coercing employees, including Claimant to change their decisions.”

PAGA Exhaustion with LWDA

The Court’s further comment on Kahn:

“We express no opinion as to the correctness of Kahn’s holding. Whether correct or not, we do not interpret Kahn so literally as to hold that a plaintiff whose pre-filing notice uses the incorrect pronoun – I instead of we and my instead of our – fails to comply with the Labor Code’s administrative procedures. Rather, we must determine whether the pre-filing notice, as a totality, gave the requisite notice.”

PAGA Exhaustion (Sample) – Crazy Making!

The provisions of subdivision (a) of Section 2699.3 apply to any alleged violation of the following provisions: subdivision (k) of Section 96, Sections 98.6, 201, 201.3, 201.5, 201.7, 202, 203, 203.1, 203.5, 204, 204a, 204b, 204.1, 204.2, 205, 205.5, 206, 206.5, 208, 209, and 212, subdivision (d) of Section 213, Sections 221, 222, 222.5, 223, and 224, paragraphs (1) to (5), inclusive, (7), and (9) of subdivision (a) of Section 226, Sections 226.7, 227, 227.3, 230, 230.1, 230.2, 230.3, 230.4, 230.7, 230.8, and 231, subdivision (c) of Section 232, subdivision (c) of Section 232.5, Sections 233, 234, 351, 353, and 403, subdivision (b) of Section 404, Sections 432.2, 432.5, 432.7, 435, 450, 510, 511, 512, 513, 551, 552, 601, 602, 603, 604, 750, 751.8, 800, 850, 851, 851.5, 852, 921, 922, 923, 970, 973, 976, 1021, 1021.5, 1025, 1026, 1101, 1102, 1102.5, and 1153, subdivisions (c) and (d) of Section 1174, Sections 1194, 1197, 1197.1, 1197.5, and 1198, subdivision (b) of Section 1198.3, Sections 1199, 1199.5, 1290, 1292, 1293, 1293.1, 1294, 1294.1, 1294.5, 1296, 1297, 1298, 1301, 1308, 1308.1, 1308.7, 1309, 1309.5, 1391, 1391.1, 1391.2, 1392, 1683, and 1695, subdivision (a) of Section 1695.5, Sections 1695.55, 1695.6, 1695.7, 1695.8, 1695.9, 1696, 1696.5, 1696.6, 1697.1, 1700.25, 1700.26, 1700.31, 1700.32, 1700.40, and 1700.47, Sections 1735, 1771, 1774, 1776, 1777.5, 1811, 1815, 2651, and 2673, subdivision (a) of Section 2673.1, Sections 2695.2, 2800, 2801, 2802, 2806, and 2810, subdivision (b) of Section 2929, and Sections 3073.6, 6310, 6311, and 6399.7.

PAGA limited to just multiple-plaintiff retaliation cases?

• What would have happened if the Court hadn’t consolidated Hawkins and Kim?

• What would have happened if just Hawkins was terminated?

• What would have happened if Hawkins was terminated, and filed suit, while Kim was demoted, but didn’t bring a lawsuit?

Attorneys’ Fees under CCP 1021.5

CCP section 1021.5 provides that a court may award attorney fees that has resulted in the enforcement of an important right affecting the public interest if: (1) a significant benefit, pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (2) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (3) such fees should not in the interest of justice be paid out of any recover.

Attorney Fees under CCP 1021.5

Enforcement through litigation of a constitutional or statutory policy does not necessarily confer a significant public benefit. Hawkins court citing Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939.)

In Hawkins, the court stated “the City argues that a significant benefit was not conferred on the public because all the action did was remedy retaliation for whistleblowing. However, the City ignores the trial court’s finding that the action also conferred a significant public benefit because the public is entitled to fair hearings with resect to parking violations.” (Vehicle Code Section 40215, subd. (c)(3) and Weiss v. City of Los Angeles (2016) 2 Cal.App. 5th 194, 220)

Going Back to Hypo #2 – Attorneys’ Fees Under CCP 1021.5

Does the Finance Manager complaining about a credit application meet the standard under CCP Section1021.5?

Does an employee complaining about patient to nurse ratio meeting that standard under CCP Section 1021.5?

Hypo #4 - Can Hawkins be extended to allow attorneys’ fees in any other fact scenario?

Professor Pete works at Cal. State University Northridge. Assistant Professor Pablo is gay and Hispanic and is up for tenure. Pete is told by Vice Chancellor Carol to make sure to support her position that Pablo is not qualified for tenure. Pete believe that Carol’s conclusions are unfounded and fears that her opinions are discriminatory based on Pablo’s race and/or sexual orientation.

Professor Pete files a whistle-blower complaint with the University’s hotline alleging perceived bias against him by Vice Chancellor Carol.


In the meantime, Pablo is given tenure. So Pete’s concerns were unfounded.

Yet, Pete still feels that Carol has retaliated against him by removing his two teaching assistant positions, and not supporting him for a grant he has received twice before.

Pete files a second whistle-blower complaint about that too.


What administrative hurdles, if any, must Pete meet before he can file a 1102.5 claim in court?

If he was still given tenure, can he still allege 1102.5 if he didn’t get a grant and his two TA positions?

Are attorneys’ fees available for his claim once filed under the Hawkinsprecedent? What are the arguments pro and con?

Assembly Bill 403 – Vetoed

AB 403: Retaliation and whistleblowing: attorneys’ fees. This bill would extend the statute of limitations for retaliation claims under Labor Code Section 98.7 from 6 months to 2 years and would allow prevailing plaintiffs to recover their attorney's fees under Section 1102.5.

Vetoed: ”I urge the Legislature to consider an approach that is consistent with other anti-retaliation statue of limitation in the Labor Code which are set to one year.”

The Governor was silent as to the attorney’s fees amendment to Labor Code Section 1102.5.

Exhaustion Updates

• FEHA – Exhaustion of Administrative Remedies: Time for filing a complaint of unlawful employment practices with the Department of Fair Employment and Housing (DFEH) was extended from one year to three years.

• Exhaustion of Judicial Remedies Not Required: Employees, including University of California employees, seeking relief under Gov. Code §§ 8547, 12653, Health & Safety § 1278.5, and Labor Code § 1102.5 are “not required to exhaust judicial remedies by filing a petition for a writ of mandamus before filing a civil action, and the administrative decision resulting from the process of exhausting administrative remedies does not have preclusive effect by application of the res judicata doctrine”. (Taswell v. Regents of Univ. of California (2018) 23 Cal. App. 5th 343, 355-362.)

Exhaustion under Gov. Code §§ 8547.10 and 8547.12

Although Gov. Code §§ 8547.10 and § 8547.12 require employees of the University of California and California State University systems to first file a complaint with the university officer and give the university the opportunity to reach a decision, it permits the employee to pursue other remedies” if the university has not satisfactorily addressed the complaint within 18 months”.

Exhaustion under Gov. Code §§ 8547.10 and 8547.12

What does it mean to “satisfactorily address” a complaint? Resolved to the “satisfaction of the complaint”. [Runyon v. Bd. of Trustees of California State Univ. (2010) 48 Cal. 4th 760, 773, in which the California Supreme Court held that the plaintiff was entitled to pursue his whistleblower claims in court once the university had rejected the internal complaint he filed.]

Hypo #5 - What constitutes a complaint sufficient to trigger 1102.5 / 6310?

Moe and Mark are Maintenance Workers at the plant.

Moe has been dating Mark’s sister, and not treating her very well. Moe also has a drinking problem.

Moe and Mark get into it at work. Mark threatens to “beat the crap out of Moe if he continues to disrespect his sister.”

Moe tells Mark to mind is own “f*ing business” and shoves him aside.


Later that night after work, Moe goes on a drinking binge, and shows up at Mark’s sister’s house drunk. Mark’s sister calls Mark in fear for her safety. Mark rushes over there and grabs Moe, punches him in the nose, and tosses him out onto the street.

With a bloody nose, and drunk, Moe falls down and he tries to stumble to the bus stop and passes out. A good Samaritan sees him lying on the street and calls an ambulance and he is taken to County hospital. He is treated there for a concussion and a broken nose.

From the hospital the next day, Moe calls the plant and tells Human Resources that Mark beat him up and broke his nose, and that Mark is dangerous. HR investigates and finds out that Mark did threaten Moe on the job, and Mark is terminated for making that threat.

Injured Moe is also terminated for shoving Mark on the job. Yet, Moe files a lawsuit alleging retaliation in violation for complaining about Mark’s violence to him, and telling the Plant he was dangerous.

Does Moe have a valid 1102.5 claim? 6310 claim?

If so, are attorneys’ fees available for his claim?


Thank You!And Don’t Fire the

Messenger!

Gina Browne, Feldman Browne Olivares

Nancy Yaffe, Fox Rothschild LLP

David Myers, the Myers Law Group, APC

1

Whistleblower Protections: Don’t Fire the Messenger!

Key Whistleblower Cases Under Cal. Labor Code Section 1102.5

Exhaustion of Internal Administrative Remedies- Section 1102.5 1

Satyadi v. W. Contra Costa Healthcare Dist., 232 Cal. App. 4th 1022 (2014) (holding that

allegations were sufficient to show director exhausted medical center's internal

administrative remedies prior to bringing action).

https://www.leagle.com/decision/incaco20141231007

1. Key Facts:

a. Satyadi informed the Doctor’s Medical Center (DMC) and its executive staff

about numerous operational practices she believed were violations of state and

federal laws relating to the laboratory's operations.

b. While employed at DMC, Satyadi refused to engage in these and other activities

she believed to be violations of the law.

c. Satyadi was terminated months later.

2. Key Findings:

a. Satyadi participated in DMC's internal administrative process and used that

process to object to the discipline her employer imposed. There was no further

administrative appeals process by which she could challenge the decision to

terminate her employment. It appears Satyadi exhausted her employer's internal

administrative remedies. Satyadi, 232 Cal. App. 4th at 1033.

1 Pre-2014 legislative amendments which eliminated the requirement to exhaust administrative remedies for section

1102.5 claims. (“An individual is not required to exhaust administrative remedies or procedures in order to bring a

civil action under any provision of this code, unless that section under which the action is brought expressly requires

exhaustion of an administrative remedy.” Labor Code section 244 (a))


2

Exhaustion of Internal Remedies- California Whistleblower Protection Act

Runyon v. Bd. of Trustees of California State Univ., 48 Cal. 4th 760 (2010) (holding that a

professor was not required to demonstrate through writ petition that CSU did not

“satisfactorily address” the internal complaint)

https://law.justia.com/cases/california/supreme-court/2010/s168950/

1. Key Facts:

a. Richard Runyon was a tenured professor in the College of Business

Administration at California State University Long Beach (CSU) and chair of that

college’s Finance, Real Estate and Law Department.

b. Following Runyon’s internal complaints regarding alleged misconduct by college

dean Luis Calingo, Runyon was removed as departmental chair.

c. Runyon filed a complaint with CSU’s vice-chancellor of human resources,

alleging he had been removed as departmental chair and subjected to other

adverse actions in retaliation for his having reported improper conduct by

Calingo.

2. Key Findings:

a. CSU employee who has complied with CSU's internal complaint and

investigation requirements and received an adverse decision from CSU may bring

a civil action for damages against those allegedly responsible for unlawful

retaliation, under California Government Code Section 8547.12. Runyon, 48 Cal.

4th at 775.

i. Section 8547.12 provides that a California State University employee may

file a written complaint with his or her supervisor or manager, alleging

actual or attempted retaliation or similar improper acts for having made a

protected disclosure, together with a sworn statement that the contents of

the written complaint are true, under penalty of perjury.

Taswell v. Regents of Univ. of California, 23 Cal. App. 5th 343 (2018) (holding that an

employee's claim under whistleblower statute was not barred by failure to file petition

for writ of mandamus to challenge administrative decision on employee's grievance)


1. Key Facts:

a. Taswell, a nuclear medicine physician, reported safety and compliance problems

to the University of California whistleblower hotline and met with the

https://law.justia.com/cases/california/supreme-court/2010/s168950/


3

University’s Associate Executive Vice Chancellor and the local designated

official responsible for receiving whistleblower complaints.

b. Taswell was informed that his contract would not be renewed.

c. Taswell filed an internal complaint for whistleblower retaliation.

2. Key Findings:

a. Following an administrative hearing, Taswell was not required to exhaust his

judicial remedies (by seeking a writ of mandamus) to challenge the university’s

rejection of his claims of retaliation. He went forward in filing the action instead.

Taswell, 23 Cal. App. 5th at 362.

b. After exhausting his administrative remedies, Taswell was statutorily authorized

to file this civil action and seek damages based on his statutory whistleblower

retaliation claims. Taswell, 23 Cal. App. 5th at 357. His internal complaint was

sufficient.

Bahra v. County of San Bernardino, 945 F.3d 1231 (9th Cir. Dec. 30, 2019) (applying Taswell

to the asserted Labor Code section 1102.5 claim, but not to claims for retaliation

brought under § 1983 of the Civil Rights Act).

Protected Report/Protected Activity

Patten v. Grant Joint Union High School Dist. 134 Cal.App.4th 1378, 1384-1385 (2005)

(holding there was an issue of fact whether disclosure of legal violations constituted

whistleblowing).

https://caselaw.findlaw.com/ca-court-of-appeal/1010810.html

1. Key Facts:

a. School principal disclosed internal complaints regarding inappropriate teacher

behavior and requested additional safety measures.

2. Key Findings:

a. It is not enough that the employee complains about conduct s/he deems

inappropriate; it must be conduct that violates a statute or regulation. Patten, 134

Cal. App. 4th at 1384.

b. The principal’s disclosure of internal complaints regarding inappropriate teacher

behavior and request for additional safety measures were not protected because


4

the conduct, even if inappropriate, did not involve the violation of any statue or

regulation. Patten, 134 Cal. App. 4th at 1384.

Ross v. Cty. of Riverside, 36 Cal. App. 5th 580 (2019) (holding that a genuine issue of material

fact as to whether attorney engaged in protected activity precluded summary judgment

on whistleblower retaliation claim)


1. Key Facts:

a. County deputy district attorney, Ross, provided evidence showing he disclosed

information to his superiors indicating the district attorney's office would not be

able to prove a particular murder case beyond a reasonable doubt and lacked

probable cause to continue prosecuting the case because the defendant's

confession was coerced.

b. Ross discovered DNA evidence exculpating the defendant, and the defendant's

roommate admitted in recorded phone calls to being the killer.

c. Based on this information, Ross recommended dismissing the case based on his

belief that continued prosecution would violate the defendant's due process rights

as well as a prosecutor's ethical obligations under state law.

2. Key Findings:

a. Ross engaged in protected activity because he disclosed information to a

governmental or law enforcement agency and to people with authority over him

which he reasonably believed disclosed a violation of or noncompliance with

federal and state law applicable to criminal prosecutions and prosecutors. Ross,

36 Cal. App. 5th at 592.

b. Although Ross did not expressly state in his disclosures that he believed the

County was violating or not complying with a specific state or federal law, Labor

Code section 1102.5, subdivision (b), does not require such an express statement.

It requires only that an employee disclose information and that the employee

reasonably believe the information discloses unlawful activity. Ross, 36 Cal.

App. 5th at 592-93.


5

Mathews v. Happy Valley Conf. Ctr., Inc., 43 Cal.App.5th 236 (Dec. 12, 2019) (plaintiff’s

email to the EEOC before he was terminated, complaining of retaliation in relation to

another employee's sexual harassment complaint, was substantial evidence that plaintiff

engaged in protected activity by reported retaliation to a government agency before he was

terminated.)

1. Key Facts:

a. Plaintiff worked as a maintenance supervisor and cook for the defendant, an

affiliate of Community of Christ church. A younger male employee confided in

plaintiff that the female executive director was sending him sexually inappropriate

text messages.

b. Plaintiff reported the allegation to a member of Happy Valley's board of directors

and to the Church's general counsel.

c. The executive director admitted sending the messages, was reprimanded, and was

allowed to continue supervising plaintiff and the younger male employee.

d. Plaintiff was terminated less than a month after his report. Plaintiff sued alleging

retaliatory termination and other legal theories.

2. Key Findings:

a. Defendant argued that the court committed reversible error when it instructed the

jury under the version of Labor Code section 1102.5 in effect at the time of trial

rather than the version in effect when plaintiff was terminated. The key difference

was that the 2014 version held the employer liable for anticipatory retaliation

before the employee reported the employer, while courts interpreting the 2012

version only held the employer liable for retaliation that occurred after the

employee had made the report.

b. The court of appeals held the error was harmless because there was substantial

evidence that an email plaintiff sent to the EEOC before his termination

constituted a protected report. Specifically, plaintiff stated he worked for a small

company in Santa Cruz, he believed he had been retaliated against in relation to

another employee's sexual harassment complaint and sought the assistance of the

EEOC to obtain to right to sue.

6

“Reasonable Belief”

Siri v. Sutter Home Winery, 31 Cal. App. 5th 598 (2019) -- (1.23.19) (reversing summary

judgment for defendant was based on Plaintiff’s purported inability to prove case

without tax returns subject to privilege)


1. Key Facts:

a. Plaintiff alleged termination in retaliation for telling management and Board of

Equalization about employer’s failure to pay taxes.

b. Plaintiff told defendant’s General Counsel about her concerns (internal

complaint), and indicated she had consulted with the CA State Board of

Equalization (external complaint).

c. Plaintiff alleged that she was wrongfully scrutinized after reporting to the General

Counsel and then terminated in violation of public policy and CA Labor Code

Section 1102.5.

2. Key Findings:

a. Summary judgment had been granted based on tax return privilege, but Court of

Appeals found the issue was whether Plaintiff was fired for communicating her

reasonable belief that defendant was not properly reporting its taxes. Siri, 31 Cal.

App. 5th at 605.

b. Finding there was a disputed issue under 1102.5, hence reversed and remanded.

Siri, 31 Cal. App. 5th at 606.

1102.5 (b) “Reasonable Belief” vs. 1102.5 (c) “Refusal to Act”

Patrick Nejadian v. County of Los Angeles, 40 Cal. App. 5th 703 (2019) -- (10.1.19) (reversing

judgment for Plaintiff of $300k on both 1102.5(c) and FEHA retaliation)

https://law.justia.com/cases/california/court-of-appeal/2019/b285016.html

1. Key Facts:

a. Plaintiff worked for County as Chief Environment Health Specialist in LA

County Department of Public Health. Plaintiff claimed he was retaliated against

for refusing to rebuild homes with an existing septic system because he believed



7

doing so would violate the CA Plumbing Code and/or County’s fire re-build

guidelines.

b. Case pled as a FEHA retaliation case, but was amended during trial to add claim

under 1102.5(c).

c. Core issue was a disagreement over a fire rebuild policy. The court contrasted

Section 1102.5(b), which was not in issue and which deals with retaliation for

disclosures or complaints of activities a plaintiff “reasonably believes” violate the

law, with Section 1102.5(c), relevant in this case, which prohibits retaliation for a

refusal to act in a way that would violate a law. (See 40 Cal.App.5th at 719). The

court held that neither of the two laws/rules the plaintiff identified (the CA

Plumbing Code and the County’s fire rebuild guidelines) were “state, federal, or

local statutes, rules or regulations” that would have been violated, within the

meaning of the statute, if plaintiff went along with the employer’s directives.

Complaining about that issue did not suffice for FEHA retaliation claim, but did

for 1102.5(c) claim.

2. Key Findings:

a. To prevail on a 1102.5(c) claim:

i. Plaintiff must identify both the specific activity and the specific statute,

rule or regulation at issue (Nejadian, 40 Cal. App. 5th at 719);

ii. Then Court must determine legal question whether the identified activity

would result in a violation or noncompliance with the identified statute,

rule or regulation (Nejadian, 40 Cal. App. 5th at 723); and if so

iii. The jury must determine the factual issue whether the plaintiff was

retaliated against for refusing to participate in the identified activity.

Nejadian, 40 Cal. App. 5th at 706.

b. Here Plaintiff didn’t show that the activity he purportedly refused to participate in

would have resulted in a violation of a federal or state statute, or noncompliance

with a local, state or federal rule or regulation. Accordingly, judgment reserved,

Nejadian, 40 Cal. App. 5th at 722.

Anticipatory Retaliation

Steele v. Youthful Offender Parole Board (2008) 162 Cal.App.4th 1241, 1254-55 (“Employer

retaliation against employees who are believed to be prospective complainants or

witnesses for complainants undermines this legislative purpose just as effectively as

retaliation after the filing of a [DFEH] complaint”).



8

Third Party Retaliation Claims

Thompson v. North American Stainless, 562 U.S. 170 (2011).

https://www.supremecourt.gov/opinions/10pdf/09-291.pdf

1. Key Facts:

a. After employee filed a sex discrimination charge with the EEOC against the

defendant, the employee’s fiancé, who also worked for the employer, was

terminated. The fiancé sued for retaliation but the district court granted summary

judgment on the ground that the third-party retaliation claims are not permitted by

Title VII of the Civil Rights Act. The Sixth Circuit affirmed, finding that the

fiancé was not entitled to sue because he did not engage in any protected activity

by the statute.

2. Key Findings:

a. The Supreme Court reversed and remanded, finding that Title VII's scope is broad

and prohibits any employer action that might dissuade a reasonable worker from

making or supporting a discrimination charge. The Court incorporated the zone

of interest test of the Administrative Procedures Act and ruled that the term

"person aggrieved" included the plaintiff.

California Application:

a. Retaliation Protections for Family Members (Labor Code §§ 98.6, 1102.5, 6310).

i. Labor Code § 98.6 (complaints made to Labor Commissioner)

ii. Labor Code § 1102.5 (regarding internal and external complaints made

about legal violations)

iii. Labor Code § 6310 (complaints made about unsafe working conditions)

b. Prohibit retaliation against family member of a person who engaged in, or who is

perceived to have engaged in, legally protected conduct (such as whistleblowing).

i. Example: If a married couple is working for the same employer, and the

husband complains that he is not being paid overtime wages, the employer

may not take adverse action against the wife.

https://www.supremecourt.gov/opinions/10pdf/09-291.pdf

9

Remedies- Attorney’s Fees

Todd Hawkins v. City of Los Angeles, 40 Cal. App. 5th 384 (2019) -- (9.19.19) (assessing PAGA

penalties for violation of 1102.5 and awarding attorneys’ fees)


1. Key Facts:

a. Plaintiffs worked in the Los Angeles Department of Transportation parking

adjudication division as part-time hearing officers, and blew the whistle on illegal

activity happening in that department. When people challenged parking tickets,

the two plaintiffs decided whether those people had in fact violated parking laws

or if the City needed to issue a refund for the fines as assessed.

b. Plaintiff Hawkins left anonymous messages in internal offices about being told to

change decisions (and reverse from not liable to liable), then met with internal

supervisors, and wrote a letter.

c. When not satisfied with the results, he took his complaints outside the DOT to the

City Ethics Commission and the members of the City Council.

d. Then he and another colleague who made similar complaints were fired.

2. Key Findings:

a. Jury found complaints were a contributing factor to termination decisions. The

city did not prove it would have fired Plaintiffs even if they had not complained.

Hawkins, 40 Cal. App. 5th at 392.

b. Jury awarded Hawkins over $238k, other Plaintiff Kim over $188k. The court

assessed a $20k PAGA penalty and awarded over $1 million in fees. Hawkins, 40


c. The Court upheld the award of attorney’s fees on two grounds.

i. First, in the unpublished portion of the decision, the Court found that the

Plaintiffs properly exhausted with the LWDA by referring to other

employees being forced to engage in conduct that would violate the Cal.

Vehicle Code. The Court took no position as to whether the Court in

Kahn v. Dunn-Edwards Corp, 2018, 19 Cal.App.5th 804, was right in

requiring the letter to the LWDA had to mention other employees beyond

just the claimant. After finding that the Plaintiffs properly exhausted with


10

the LWDA, it awarded attorney’s fees under Labor Code Section 2699

(g)(1).

ii. Second, in the published portion of the decision, the Court upheld the trial

Court’s award of attorneys’ fees under Code of Civil Procedure section

1021.5, which provides that a court may award attorney fees to a

successful party in any action which has resulted in the enforcement of an

important right affecting the public interest if: (1) a significant benefit,

pecuniary or non-pecuniary, has been conferred on the general public or a

large class of persons; (2) the necessity and financial burden of private

enforcement are such that as to make the award appropriate; and (3) such

fees should not in the interest of justice be paid out of any recovery. In

upholding the award of fees, the Court found that “the City ignores the

trial court’s finding that the action also conferred a significant public

benefit because the public is entitled to fair hearings with respect to

parking citations” and that, the public had been deprived of independent

and impartial hearings. The Court found that the beneficial right being

conferred wasn’t the non-retaliation rights of the Plaintiffs, but rather that

rights of the public that they were complaining on behalf of. Hawkins, 40


d. The Court did not make a finding about the Bane Act.

2019 Legislative Activity

Assembly Bill 333

Added section 5525 to the Welfare & Institutions Code to afford whistleblower

protections to county patients’ rights mental health advocates.

Assembly Bill 403

Was presented to the Governor for his signature in 2019. The bill would have

extended the period to file a whistleblower retaliation complaint with the Labor

Commissioner from six months to within two years of when the retaliation

occurred. The bill also permitted reasonable attorney’s fees under Labor Code

1102.5. Governor Newsom returned the bill without his signature. He stated that

his denial was based on the fact that it was inconsistent with one year limitations

periods of other retaliation statutes. It appears that Governor Newsom would

have signed the bill, including allowing reasonable attorney’s fees if the bill was

limited to a one year period to file a claim.

9327 Fairway View Place, Suite 100

Rancho Cucamonga, CA 91730

Tel: 909-919-2027

Fax: 888-375-2102

www.myerslawgroup.com

David P. Myers, Esq.

THE MYERS LAW GROUP, APC

9327 Fairway View Pl., Ste. 100

Rancho Cucamonga, CA 91730

(909) 919-2027

[email protected]

D. Smith, Esq., Of Counsel

D SMITH FIRM

1032 Santa Barbara Street

Santa Barbara, CA

(909) 919-2027

[email protected]

CASE BRIEF: Hawkins v. City of Los Angeles

Appearing at trial and on appeal: David P. Myers and D. Smith of the Myers Law Group, APC for

Plaintiffs and Respondents on Appeal.

Introduction

Division Three of the Second District Court of appeal filed the opinion for Hawkins v. City of Los

Angeles (2019) 40 Cal.App.5th 384 on September 9, 2019 and certified it for partial publication

shortly thereafter. Remittitur issued and the decision became final. The full opinion which includes

the unpublished portions can be found at Hawkins v. City of Los Angeles, 2019 Cal. App. Unpub.

LEXIS 5989. The 2DCA opinion in full is also attached.

At trial, the jury returned separate verdicts 1) awarding Mr. Hawkins $150K in general damages and

$88,531 in economic damages, and 2) awarding Mr. Kim $100,000 in general damages and $88,631

in economic damages. The trial court assessed a Cal. Labor Code Private Attorneys General Act

penalty of $20,000 against the City and awarded plaintiff counsel $1.054M in attorneys and paralegal

fees (a lodestar of $843,429.50 with a 1.25 multiplier).

On appeal, the Hawkins decision turned on the merits of the “pretext” element of the “same decision”

defense after Plaintiffs established their prima facie case of whistleblower retaliation before the jury.

The Hawkins court in essence concluded that a reasonable jury could have found that the reasons

given by the City for firing plaintiffs were simply not believable. The issue then being one of weight

and credibility of the evidence foreclosing reversal on appeal, the Hawkins court affirmed the

judgments resulting from the verdicts and related orders in plaintiffs’ favor.

Key Whistleblower Facts

Takeaways:

• Retaliatory Motive: “In short, the public had been deprived of independent and impartial

hearings. Instead, the City undermined the process provided by the Vehicle Code to generate

revenue.” Hawkins, supra, 40 Cal.App.5th at 398.

• “Mixed” Disclosure (i.e., protected v. potentially unprotected activity): Plaintiffs disclosed

both supervisor yelling and screaming mannerisms as well as the supervisor’s violation of

statute on behalf of the employer.

• Corroboration of Employer’s Law Violation: Virtually unanimous witness statements in the

internal investigation and trial testimony of co-workers in the same job title evidenced the

same employer law violation disclosed to upper management by plaintiffs.

• Inconsistent Internal Investigation: Final report of workplace complaint investigation

favoring the employer did not match witness statements or the internal investigation report to

upper management.

The plaintiffs Todd Hawkins and Hyung Kim filed separate lawsuits against the City of Los Angeles,

Department of Transportation, after their terminations in 2013. As employees, they were

Administrative Hearing Examiners who decided City parking citations after citizens lost their initial

review, paid the fine, and appealed. If the citizen won their appeal at hearing, the fine was refunded

to them.

City AHEs worked under three supervisors who respectively oversaw the City DOT’s three parking

adjudication division offices. Plaintiffs alleged that two of the three pressured AHEs to change

decisions so that citizens would not receive a refund. The City received approximately $150M in

annual revenue from parking violations at the time.

In 2012, Mr. Kim complained in writing about the pressure, along with one of the two supervisor’s

workplace bullying. About a year earlier, another AHE had complained in writing about the

supervisor bullying also. Mr. Hawkins likewise in 2012 reported the pressure to change decisions in

person to a senior supervisor and the third supervisor who had no complaints against him. Around

that time, Mr. Hawkins also left “anonymous” messages with the City DOT general manager’s office

about the pressure to change decisions. Mr. Hawkins’ complaints went unremedied by the City even

after Mr. Hawkins’ written complaints to the City’s Ethics Commission and City Council.

In May 2013, Mr. Hawkins filed an “anonymous” written complaint about the bullying and the

pressure to change decisions with the person in charge of the City’s DOT, the general manager. The

May 2013 complaint attached the two other written complaints (including the one from Mr. Kim),

and identified several AHE witnesses to his allegations. Mr. Hawkins followed up with a written

supplement to the initial written complaint in June 2013 identifying himself as the complainant and

adding additional AHE witnesses to the May 2013 list.

The City’s DOT general manager tasked his assistant manager with investigating the allegations in

or about Summer 2013. The assignment was passed down next in the line of command to the senior

supervisor who had heard Mr. Hawkins’ verbal complaints in 2012. In all, about 11 AHEs were

interviewed including plaintiffs. All corroborated plaintiffs’ complaints about pressure to change

decisions which were initially found to be substantiated and credible by the senior supervisor

investigating the claims.

After the senior supervisor submitted his written report however, the investigation was abruptly

concluded by the City DOT assistant manager on October 8, 2013 with written findings in favor of

the two supervisors. Mr. Hawkins was fired at the end of November 2013. Mr. Kim was fired at the

end of December 2013.

Key Adverse Employment Action Facts

Takeaways:

• Relevance of Prior Workplace Misconduct: The employer waited months and years to

terminate until a protected disclosure had been made in the interim and only then did the

employer use prior discipline as the reason for firing plaintiff when termination was not

previously imposed in response to the same alleged workplace misconduct.

• Disparate Adverse Action: When two employees contemporaneously disclosed the same

employer statutory violation, the employer’s proffered reason for terminating one plaintiff

was 5 years of behavior outside employer work etiquette policies while the other employee

was fired for only two instances of behavior outside employer work etiquette policies in a

short span of a few weeks.

• Plaintiffs “Singled Out” for Retaliation: Two of three workplace complainants who disclosed

supervisor unlawful revenue scheme and bullying were fired, but the third who only

mentioned bullying but not the employer’s unlawful revenue scheme was not fired.

The Hawkins court accepted the City’s contention that the plaintiffs were part-time as-needed AHE’s

and therefore not entitled to progressive discipline under civil service rules. Mr. Hawkins had a record

of discipline going back to at least 2008 regarding citizen complaints about his “brusque and

dismissive” manner while conducting hearings. Mr. Kim had no record of discipline except for

hearing irregularities on two occasions in or about May and June of 2013.

In June 2011, Mr. Hawkins had a verbal altercation with the AHE supervisor accused of workplace

bullying and pressuring AHEs to change decisions. They are both Black. The supervisor accused Mr.

Hawkins of “think[ing] [he] [is] White.” The supervisor also threatened Mr. Hawkins that when she,

as interim supervisor, became promoted to that position she was going to change things in the

workplace starting with him. She was in fact promoted to the supervisor position permanently shortly

thereafter. That incident was followed by a second verbal altercation between her and Mr. Hawkins

in August 2011 after she and the other supervisor accused of pressure to change decisions met with

Mr. Hawkins about a write-up for two citizen complaints concerning his hearing demeanor.

The August 2011 incident resulted in the City DOT assistant general manager requesting Mr.

Hawkins’ termination to City Personnel. Mr. Hawkins was placed off work in August 2011 pending

investigation. Three months later, Mr. Hawkins was placed back on the AHE calendar and resumed

working as an AHE for the City. He was not disciplined again until January 2013 after he had been

making several verbal complaints about the pressure to change decisions in or about late 2012.

Exactly one week before the October 8 closing report for the mid-2013 investigation of the two

supervisors, the City DOT assistant general manager requested that one of them discipline the three

AHEs that had written complaints forming the basis for Mr. Hawkins’ May and June 2013

disclosures.

Of those three AHEs with written complaints to the City, only Mr. Kim and Mr. Hawkins were fired.

The third AHE had not complained about the pressure to change decisions in his written complaint,

only the workplace bullying. The third AHE was not terminated, unlike Mr. Hawkins and Mr. Kim

who did reference the pressure to change decisions and were fired.

Key Claims and Defenses

Takeaways:

• Municipal Corporation Subject to $10,000 Penalty for Whistleblower Retaliation: When

seeking a PAGA penalty, the specific statute violated may provide a higher civil penalty than

the default penalties provided in the PAGA statute.

• Wrongful Termination May Be Coercion Under the Bane Act: See, e.g., Quezada v. City of

Los Angeles (2014) 222 Cal.App.4th 993, 1007-1008. Police were officers involved in an off-

duty shooting at a bar near their police station. Threats of violence or violence not required

under hate crime standard, but “requisite” coercion was not present because police officers

were required to take breathalyzer as part of employment when involved in an off-duty

shooting; cf., Stamps v. Sup. Ct. (2006) 136 Cal.App.4th 1441, 1444, 1456-1459 (Bane Act

applies in employment cases); see also Cabesuela v. Browning-Ferris Industries of

California, Inc. (1998) 68 Cal.App.4th 101 (“violence” or “threats of violence” required); but

see also, Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841-843 (Bane Act/Cal.

Civ. Code § 52.1 is independent of Ralph Act/Cal. Civ. Code § 57.1 violence/threats of

violence requirement) (interprets renumbered Cal. Civ. Code § 52.1 subd. (g) 2000

amendment as clarifying Cal. Civ. Code § 52.1 action “independent” of Cal. Civ. Code § 51.7

(Ralph Act), not just limited to protected minority status categories/hate crimes (Stats. 2000

ch. 98 § 3, AB 2719) (former Cal. Civ. Code § 52.1 subd. (b) now renumbered to subd. (c),

Stats. 2018 ch. 776 § 4, AB 3250). Cabesuela is thus questionable precedent in light of 2000

amendments clarifying that the Bane Act and Ralph Act operate independently of each other.

The plaintiffs’ separate suits were consolidated for jury trial. Plaintiffs prevailed on causes of action

for whistleblower retaliation in violation of Cal. Labor Code § 1102.5 and violation of the Bane Act

(Cal. Civ. Code § 52.1). On post-verdict motion, the trial court assessed $20,000 in PAGA penalties

against the City as a municipal corporation (see Cal. Lab. Code §§ 1102.5(f), 1102.6, 2699(f)), 75%

to the LWDA and 25% to be divided equally between plaintiffs. The trial court also awarded $1.054M

in attorneys and paralegal fees on three grounds: 1) PAGA, 2) Bane Act, and 3) CCP § 1021.5.

On appeal, the City claimed no substantial evidence supported either the Cal. Labor Code § 1102.5

or Bane Act causes of action. The City also claimed Bane Act instructional error because “violence”

or a “threat of violence” was not included in the Bane Act jury instruction or plaintiffs’ presentation

of evidence to the jury. The City also challenged the PAGA penalty and resulting fees claiming that

plaintiffs’ suits and LWDA pre-filing notices were not “representative” actions and only brought as

to each individual plaintiff on their own behalf and not on behalf of themselves and others. The City

also challenged the CCP § 1021.5 fee award by claiming no public benefit or benefit to a large class

of persons and the necessity and financial burden of private enforcement did not outweigh plaintiffs’

pecuniary stake in the outcome. Cf., Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215-1216

(necessity of private enforcement element satisfied if fees significantly greater than damages when

taking into account contingent risk).

Key Points in the Published Portions of Hawkins

Takeaways:

• Mixed Disclosure Nevertheless Protected Activity: A whistleblower complaint containing

both protected and unprotected disclosures may or does qualify as protected activity.

• Causal Link May Be Established by Timing or Pattern of Retaliatory Conduct: Even when a

long time elapsed between protected disclosure and adverse action, a pattern of retaliatory

conduct by the employer in the interim may still prove causal link between protected

disclosure and adverse action.

• Pretext Element Turns on Credibility: When the employer presents the jury with equivocal or

dubious witness testimony on its behalf, a reviewing court may or will defer to the jury’s

disbelief of the employer’s proffered reason for adverse action given by those witnesses.

• Mere Fact of Bringing Employer’s Attention To Law Violation May Satisfy Public Benefit

Prong of CCP § 1021.5 Attorneys Fees Provision: A public employee complaint to upper

management of a municipal government employer about mid-level management’s law

violations on behalf of the employer was sufficient to support a trial court finding of a public

benefit.

Cal. Labor Code § 1102.5 Retaliation

Plaintiffs proved their prima facie case at trial. They disclosed illegal activity, were fired, and showed

a causal link between the two. The City was required by state statue to provide fair and impartial

parking ticket hearings. Plaintiffs’ complaints about the City violating this statute (Cal. Veh. Code §

40215(c)(3)) constituted protected activity rather than mere internal personnel grievances about

workplace bullying. The plaintiffs only had to show that a portion of their complaints disclosed the

statutory violation to meet the first element. The fact that they also complained about supervisor

mannerisms (i.e., potentially internal personnel matter) was not material.

The Hawkins court identified two ways plaintiffs proved a causal link. First, there was closeness in

time between 2012 and 2013 complaints to the 2013 terminations. Second, even if a long time had

elapsed, the plaintiffs also proved a pattern of retaliatory conduct. Mr. Hawkins was disciplined in

January 2013 after his 2012 verbal complaints. Mr. Kim was required to get a doctor’s note for a

single absence following the 2013 investigation as was not usually the City’s practice. Plaintiffs’

prima facie burden being met, the burden then shifted to the City to establish legitimate,

nonretaliatory reasons for the terminations.

The Hawkins court concluded that the City did establish legitimate, nonretaliatory reasons for firing

plaintiffs. Mr. Kim conceded at trial that his two instances of hearing misconduct warranted

disciplinary counseling. Mr. Hawkins had been repeatedly counseled for his terse demeanor over the

course of several years. The burden then shifted back to plaintiffs to prove those reasons were pretext,

that the true reason for the terminations was retaliation for the protected activity.

As to Mr. Hawkins, the City had the same complaints against him for years and had not fired him.

The City had put him back to work after the June and August 2011 supervisor altercations. Ten

months had passed since the January 2013 counseling, and the May and June 2013 written complaints

were an intervening factor prior to his termination. The supervisor tasked with the January 2013

Hawkins discipline did not have Mr. Hawkins as his direct report for that alleged workplace

misconduct. The supervisor testified in effect that being tasked to discipline Mr. Hawkins for alleged

misconduct in a different office than the one he supervised was out of the ordinary and suspect. The

Hawkins court characterized Mr. Kim’s record of discipline, two hearings in 2013, as “miniscule”.

To prove pretext, a plaintiff must show “weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact

finder could rationally find them unworthy of credence, and hence infer that the employer did not act

for a nondiscriminatory reason.” A supervisor as well as all AHEs interviewed in the investigation

and several testifying at trial corroborated another supervisor’s workplace bullying, but that

supervisor denied it on the witness stand. This undermined the City’s denial by that same supervisor

that she pressured AHEs to change decisions. The City had a motive to fire plaintiffs when they

complained because there was “overwhelming” evidence to support those complaints. Virtually every

if not all AHEs testifying at trial confirmed that the two supervisors pressured AHEs to change

decisions.

Finally, of the three AHEs who made written complaints, only one limited the complaint to one of the

supervisor’s workplace bullying. Because Mr. Hawkins and Mr. Kim added the pressure to change

decisions, they were singled out for whistleblowing. The third AHE who did not report the pressure

to change decisions in writing was not fired even though he admitted while testifying at trial that the

pressure to change decisions was true and a concern of his at the time. And, the City’s PMK about

the City’s reasons for the terminations who testified at trial gave different reasons for termination at

deposition.

Fees

Hawkins may be the first reported case that at least acknowledges in the published portion that an

award of atttorneys fees may result under PAGA for a Cal. Labor Code § 1102.5 violation finding

by the jury upon an assessment of the PAGA penalty (in this instance, awarded by the trial court post-

verdict). Also, unlike the CCP § 1102.5 attorney fees awards in Weiss v. City of Los Angeles (2016)

2 Cal.App.5th 194 and Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, the plaintiffs in

Hawkins did not obtain injunctive relief at trial (the City terminated their standing as whistleblowing

employees when they fired them). Rather, the Hawkins court applied the abuse of discretion standard

to the trial court’s finding in the fee award that the public was benefited by the action in plaintiffs

disclosing to the City that AHEs were being pressured to change decisions. The Hawkins court

described this as “Plaintiffs’ action revealed that, for years, the City had been pressuring…hearing

examiners to change decisions, usually to find that refunds were not warranted.”

Key Points in the Unpublished Portion of Hawkins

Takeaways:

• “Representative” Action Requirement for PAGA Cause of Action Limited To Pre-Filing

Notice To the LWDA Rather than More Broadly To the Suit: The Hawkins plaintiffs argued

that PAGA applies to employers with a single employee and that any multiple-aggrieved

employee requirement must include an exception where there is only a single employee

instance of retaliation (i.e., not suitable for “class” or “representative” treatment).

• A Pre-Filing PAGA Letter To the LWDA May Benefit from at Least Presenting Potential

Multiple Aggrieved Employees: A plaintiff may be able to bring single aggrieved employee

suit if their PAGA Letter placed the state’s Labor and Workforce Development Agency on

notice of potential multiple aggrieved employees in setting forth the factual and legal theories

of the Labor Code violation(s) in the content of the PAGA Letter. Caution, however, no

published law on point and/or contrary/split authority may indicate contra.

Hawkins distinguished Kahn v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804 which held that a

plaintiff’s required pre-filing notice to the LWDA must place the agency on notice that the claims are

not limited to an individual aggrieved current or former employee. The Hawkins court parsed the

plaintiffs’ PAGA notices to the LWDA and found that because they specifically mentioned, for

example, multiple hearing examiners being pressured to change decisions in the summary of the

factual and legal theories supporting the pre-filing PAGA letters, the LWDA was sufficiently placed

on notice that there could be more than just individual claims (both other aggrieved employees and

the public). The Hawkins court was keen to note that, compared with the Hawkins plaintiffs who

challenged Kahn’s holding including a detailed recitation of legislative history argued at trial and on

appeal, it was not expressing an opinion on whether Kahn was correctly decided, but merely

distinguishing it on the limited ground of the pre-filing PAGA notice to the LWDA rather than whether

the suits themselves were “representative” actions.

The Hawkins court also declined to address the Bane Act issue, instead asserting the harmless error

doctrine as set forth in Cal. Const. art. VI, § 13. However, it was interesting that in the published

portion, the Hawkins court did note that “As to the Bane Act cause of action, the jury found that the

City engaged in conduct that interfered by threats, intimidation, or coercion with plaintiffs’ right to

complain about a supervisor engaging in conduct inconsistent with the Vehicle Code.”(emphasis

added) In other words, the Hawkins court did not dismiss out of hand plaintiffs’ Bane Act theory and

resulting verdicts, but rather passed on the issue as unnecessary to its holding.

Key Procedural Points

Takeaways:

• Contradicted Evidence May Be Substantial: Conflicts in evidence turning on credibility might

not or do not justify reversal of judgment resulting from a jury’s factual finding based on that

issue.

• Promptly Disclose Death of a Party: Counsel should not proceed with pending litigation upon

the known death of a party absent prompt disclosure to opposing counsel and the court. The

correct procedure is a motion for the court to appoint a substituted party in place of the

decedent which concurrently satisfies the notice requirement and allows the action to proceed

in the name of a properly substituted party.

• A Jury Verdict Award of Emotional Distress Damages Survives if Plaintiff’s Death is After

Entry of Judgment: It appears settled law that there is a bright line for whether emotional

distress damages abate on a plaintiff’s death. If a plaintiff dies before judgment is rendered,

her general damages abate. If death is after entry of judgment, those damages survive.

Substantial Evidence Standard on Review

The Hawkins court described substantial evidence review as “Neither conflicts in the evidence nor

testimony which is subject to justifiable suspicion justifies the reversal of a judgment, for it is the

exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the

facts upon which a determination depends. Thus our power begins and ends with a determination of

whether there is any substantial evidence contradicted or uncontradicted, which will support the

verdict.” (internal paraphrasing, elipses, citations and quotations omitted). And as a corollary, in

deferring to the jury’s credibility determination on the pretext issue, a “jury may weave cloth of truth

from evidence.”

Death of Plaintiff Kim Pending Appeal

Tragically, Mr. Kim passed away at only 42 years old in February of 2019 while the Hawkins appeal

was pending. Proceeding on appeal without notifying the Court and opposing counsel of the death of

a party could lead to attorney discipline. See In the Matter of: Steven Pabros, Case No. 17-O-05369

(30-day suspension). The emotional distress damages awarded by the jury as to the deceased

plaintiff’s chose in action at that point abates unless the plaintiff dies after entry of the judgment

pertaining to the jury’s verdict. Sullivan v. Delta Airlines, Inc. (1997) 15 Cal.4th 288, 305 and passim;

see also CCP §§ 377.20(a), 377.21, 377.34. Thus, it became an imperative that plaintiff counsel

preserve any putative estate interests by substituting a proper party in place of Mr. Kim to properly

move forward with the defense against appeal.

Plaintiff did so by filing an appellate motion for a short continuance of oral argument and leave to

file a trial court motion to appoint a substituted party (done by ex parte application to the trial court

for an order shortening time to bring the motion). Since, after brief investigation and due diligence,

plaintiff counsel discovered that the successor-in-interest and/or heirs were unascertained, plaintiff

counsel successfully proceeded under CCP §§ 373.5, 377.31, 373.33. Both the trial court and the

Court of Appeal granted respective motions to appoint a licensed fiduciary as guardian ad litem in

place of Mr. Kim’s unascertained heirs/successors. Otherwise, either a duly appointed estate

representative or successor-in-interest is normally substituted in place of the party decedent. See CCP

§ 377.31. Plaintiff counsel (now representing Mr. Hawkins and the guardian ad litem as the real party

in interest for Mr. Kim’s estate interest in his Hawkins chose in action) made sure to file a motion to

augment the record on appeal to include a certified copy of Mr. Kim’s death certificate (showing date

of death after entry of judgment) to preserve the jury’s general damages award in favor of Mr. Kim

on appeal. The Court of Appeal granted the motion and ultimately affirmed Mr. Kim’s judgment

including the jury’s general damages award.

Filed 9/9/19; Certified for Partial Publication 9/25/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

TODD HAWKINS et al.,

Plaintiffs and Respondents,

v.

CITY OF LOS ANGELES,

Defendant and Appellant.

B279719, B282416

(Los Angeles County

Super. Ct. Nos.

BC541066, BC543766)

APPEALS from judgments and orders of the Superior Court

of Los Angeles County, Ernest M. Hiroshige, Judge. Affirmed.

Michael N. Feuer, City Attorney, Blithe S. Bock, Assistant

City Attorney, and Paul L. Winnemore, Deputy City Attorney, for


The Myers Law Group, David P. Myers and D. Smith for

Plaintiffs and Respondents.

——————————

2

The City of Los Angeles (the City) fired Todd Hawkins and

Hyung Kim1 from their jobs as hearing examiners at the

Department of Transportation (DOT). Claiming they were fired for

whistleblowing on the City’s practice of pressuring hearing

examiners to change decisions, Hawkins and Kim sued the City for

violations of the Bane Act and for whistleblower retaliation. After a

jury found for Hawkins and Kim on those causes of action, the trial

court assessed a penalty under the Private Attorney General Act

(PAGA) and awarded them attorney fees. The City appeals,

contending the judgments must be reversed for insufficient evidence

and instructional error. They also contend that the awards of civil

penalties and attorney fees must be reversed. We reject these

contentions and affirm the judgments and orders.

BACKGROUND

I. The lawsuit

Hawkins and Kim (collectively plaintiffs) separately sued the

City for whistleblower retaliation under Labor Code section

1102.5,2 violation of the Bane Act (Civ. Code, § 52.1), violation of

federal civil rights (42 U.S.C. § 1983); and violation of Government

Code section 815.6.3 Hawkins, but not Kim, also alleged a cause of

action under the Fair Employment and Housing Act (FEHA).

1 During the pendency of this appeal, Kim died. Lawrence A.

Dean, II substituted in as guardian ad litem for Kim.

2 All further statutory references are to the Labor Code unless

otherwise indicated.

3 Government Code section 815.6 imposes liability on a public

entity for injury resulting from failure to discharge a mandatory

duty.

3

Plaintiffs, individually and “on behalf of the general public,” asked

for penalties under PAGA (§ 2698 et seq.). They also asked for

attorney fees. The cases were consolidated for a jury trial, at which

the following evidence was elicited.4

II. DOT’s parking adjudication division

The parking adjudication division of the DOT handles appeals

from individuals contesting parking fines, citations, and impounds.

After issuance of a notice of parking violation, a person may request

an initial review. (Veh. Code, § 40215, subd. (a).) If the person is

dissatisfied with the results of that review, he or she may request

an administrative hearing but must pay the parking penalty. (Id.,

subd. (b).) A hearing examiner presides over the hearing which

shall provide “an independent, objective, fair, and impartial review

of contested parking violations.” (Id., subd. (c)(3).) Hearings are

recorded, and the hearing examiner issues a written decision. If the

hearing examiner finds the individual not liable, then the City

issues a refund.

John Fick supervised the parking adjudication division until

he retired in 2012. Thereafter, Ricardo Sanchez, who managed the

Van Nuys parking adjudication office, and Kenneth Heinsius, who

managed the Civic Center parking adjudication office, rotated into

the supervisory position every four months. Walton-Joseph, who

had been a hearing officer, was promoted to acting office manager of

the West Los Angeles parking adjudication office in 2011.

Plaintiffs were part-time hearing examiners, used on an as-

needed basis. As such, they were at-will employees not entitled to

civil service protections, including progressive discipline. Plaintiffs

4 Hawkins also sued Carolyn Walton-Joseph, a DOT

employee, but she was dismissed before trial.

4

adjudicated parking citations and impounds. Hawkins began

working for the City in February 2000. Kim began working for the

City in 2006.

III. The June to August 2011 altercation between Hawkins and

Walton-Joseph

Walton-Joseph supervised Hawkins when he worked at the

West Los Angeles office after she took over as acting manager.

From the outset, they did not get along. In June 2011, Walton-

Joseph objected to language Hawkins used in a decision. When he

responded that nobody had objected to that language during his

11 years as a hearing examiner, she “stormed” into his office,

screaming and yelling that she did not care what other office

managers did. When Hawkins asked her to treat him

professionally and respectfully, she told him that his problem was

that he thought he was White.5 She warned him that she would be

promoted to office manager and when that happened “there will be

some changes around here and I’m going to start with you.”

Hawkins immediately reported the incident to Sanchez, who

told him to report it to Fick. Fick, however, merely advised

Hawkins to get along with Walton-Joseph, because she was going to

be promoted to office manager, which in fact happened later that

month.

Not long after this incident, Walton-Joseph called Hawkins

into a meeting on August 3, 2011 with Heinsius. She told Hawkins

that members of the public had complained about him. Believing

that Walton-Joseph had trumped up the charges to retaliate

against him, Hawkins complained again to Fick and, on August 9,

5 Walton-Joseph and Hawkins are Black.

5

filed a complaint with the Equal Employment Opportunity

Commission.

The next day, August 10, 2011, Walton-Joseph asked

Hawkins to review a notice to correct his inappropriate conduct at

hearings. This led to another angry confrontation between the two,

resulting in Hawkins being told to leave the office until the matter

was resolved. He was not scheduled to work again until

November 7, 2011. According to Oliver Quirante, who worked in

personnel and advised on human resource matters, Hawkins was

allowed to come back to work because they were shorthanded,

notwithstanding that the incident between Hawkins and Walton-

Joseph was unresolved.

As a result of Hawkins’s August 10, 2011 altercation with

Walton-Joseph, Robert Andalon, DOT’s assistant manager, asked

that Hawkins be disciplined. However, as we later discuss, no

action was taken on the request for discipline until years later.

IV. Complaints that hearing examiners were pressured to change

decisions

Around the time Walton-Joseph began managing the West

Los Angeles office, hearing examiners began to tell Sanchez that

Walton-Joseph and Heinsius were pressuring them to change

decisions, generally from not liable to liable, meaning that people

who had challenged their tickets were not getting refunds to which

hearing examiners had found they were entitled. Over the years,

approximately 14 hearing examiners, including Hawkins and Kim,

complained to Sanchez.

In July 2012, Hawkins started to leave anonymous messages

at the executive office that hearing examiners were being told to

change decisions. When nothing happened, he met with Sanchez

6

and Wayne Garcia, the division head for parking operation and

support, to voice his concerns, but nothing came of the meeting.

The next month, in a letter dated August 16, 2012, Kim

complained to Garcia about Walton-Joseph’s unprofessional

behavior. He also “raised other issues about . . . Walton[-

Joseph]. . . . I feel that one issue that must be mentioned is her

instances of having decisions changed. I myself have changed

decisions. However, this was based on valid grounds. I have heard

that some changes were not based on such concrete grounds. This

course of action would jeopardize the entire Administrative Hearing

process due to a lack of independence and undue coercion.”

Plaintiffs were not the only people to voice concerns. Hearing

examiner Surapong Kunkaew wrote a memorandum to Fick in

November 2011 about Walton-Joseph’s abrasive and aggressive

management style. Although he did not refer to being pressured to

change decisions in his memorandum, he admitted at trial that had

been a concern at the time.

On May 2, 2013, having received no response to his

complaints, Hawkins anonymously wrote to DOT’s General

Manager Jaime de la Vega about “ ‘the problem’ ” in the West Los

Angeles office. The problem was Walton-Joseph, who “scream[ed]

and yell[ed]” at hearing examiners to change their written decisions

from not liable to liable. Hawkins identified eight hearing

examiners who could corroborate his charges, including himself,

Kim, and Kunkaew. Hawkins also attached Kim’s August 16, 2012

letter to Garcia raising similar complaints. Although Hawkins did

not sign the letter, it was no secret he authored it: he told

colleagues he wrote it. Moreover, he sent a follow-up letter to

de la Vega on June 30, 2013 identifying himself as the author of the

7

May 2 complaint and referring de la Vega to two more hearing

examiners who could substantiate his claims about Walton-Joseph.

Not long after Hawkins sent that May 2, 2013 complaint,

Heinsius identified a hearing Kim had conducted in which Kim had

off the record discussions and found the hearing complainant not

liable because she was a member of the California State Bar in good

standing. Heinsius told Walton-Joseph about the hearing and that

they needed to monitor Kim’s hearings. Kim was then counseled

about his improper conduct during two hearings.

Meanwhile, Andalon asked Garcia to investigate complaints

that hearing examiners were being asked to change their decisions.

As part of that investigation, Garcia interviewed hearing

examiners. All said Heinsius or Walton-Joseph had asked them to

change decisions. They also complained about Walton-Joseph’s

management style, describing her as mean, a bully, and demeaning

to others. Garcia asked Walton-Joseph and Heinsius to respond to

the allegations. She denied them; he merely shook his head.

Garcia issued a written report in September 2013. Garcia

reported low morale and that Heinsius and Walton-Joseph did not

separate their administrative responsibilities from the quasi-

judicial function of hearing examiners. Garcia found the allegation

that Walton-Joseph and Heinsius forced hearing examiners to

change decisions substantiated. However, he also concluded that

they gave strong rationales for compelling different decisions and

found Walton-Joseph and Heinsius did not abuse their authority

under the Vehicle Code. Although his recommendations did not

include any discipline for Walton-Joseph and Heinsius, he did

recommend hiring a senior management analyst to oversee the

adjudication division, reminding managers not to engage in

rendering decisions on adjudicated parking citations, telling

8

hearing examiners to notify their division head if they felt forced to

change hearing decisions, and setting a new tone for working

relationships.

Garcia passed his report up the chain of command to Andalon

who, as assistant manager, was just below the general manager.

On October 8, 2013, Andalon found there was insufficient evidence

to support the allegations against Heinsius and Walton-Joseph.

However, he recommended reminding hearing examiners that their

decisions had to comply with the training manual and telling office

managers to verify that decisions complied with the law. The

matter was therefore considered closed.

Unsatisfied with this conclusion, Hawkins took his

complaints outside the DOT, to the City Ethics Commission and

members of the City Council.

V. The City fires plaintiffs

On October 1, 2013, just days before issuing his findings,

Andalon had Heinsius look into complaints about the “disruptive or

unprofessional conduct” of various employees. In response,

Heinsius identified Hawkins, Kim, and Kunkaew as subjects for

investigation.

The City fired Hawkins on November 19, 2013. At trial,

Quirante said that Hawkins was fired in November 2013 because of

the August 2011 request for discipline, which had remained an open

investigation. Because of staffing issues, human resources simply

never got around to it.

The City fired Kim on December 23, 2013, ostensibly because

of his conduct at two hearings in May and June 2013.

9

VI. The jury’s verdicts

The jury found for plaintiffs on their Bane Act and

whistleblower causes of action but against them on their federal

civil rights claims. The jury also found against Hawkins on his

FEHA cause of action. As to the Bane Act cause of action, the jury

found that the City engaged in conduct that interfered or attempted

to interfere by threats, intimidation, or coercion with plaintiffs’

right to complain about a supervisor engaging in conduct

inconsistent with the Vehicle Code. As to the section 1102.5 cause

of action for retaliation, the jury found that plaintiffs’ disclosure

that a supervisor pressured hearing examiners to change decisions

was a contributing factor to the City’s decision to fire plaintiffs. The

City, however, did not prove it would have fired plaintiffs for

legitimate, independent reasons even if they had not complained.

The jury awarded Hawkins $238,531 and Kim $188,631 in

damages, respectively.

The trial court assessed a $20,000 penalty under PAGA and

awarded plaintiffs $1,054,286.88 in attorney fees.

DISCUSSION

I. Sufficiency of the evidence of retaliation

The jury found for plaintiffs on their causes of action under

section 1102.5, subdivision (b), which is “California’s general

whistleblower statute.” (Carter v. Escondido Union High School

Dist. (2007) 148 Cal.App.4th 922, 933.) That section prohibits an

employer from retaliating against an employee for disclosing to a

government or law enforcement agency a violation of state or

federal statute. (§ 1102.5, subd. (b).) The section reflects a public

policy of encouraging workplace whistleblowers to report unlawful

10

acts without fear of retaliation. (McVeigh v. Recology San Francisco

(2013) 213 Cal.App.4th 443, 468.)

To establish a violation, a plaintiff must make a prima facie

case of retaliation. To do that, plaintiff must show he engaged in

protected activity, his employer subjected him to an adverse

employment action, and the existence of a causal link between the

two. If plaintiff meets his prima facie burden, defendant has the

burden to prove a legitimate, nonretaliatory explanation for its

actions. The plaintiff must then show that the explanation is a

pretext for the retaliation. (Hager v. County of Los Angeles (2014)

228 Cal.App.4th 1538, 1540.)

Where, as here, a party contends insufficient evidence

supports a jury verdict on retaliation, we apply the substantial

evidence standard of review. (Wilson v. County of Orange (2009)

169 Cal.App.4th 1185, 1188.) We view the evidence in the light

most favorable to the prevailing party, giving the evidence the

benefit of every reasonable inference and resolving all conflicts in

its favor. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959,

968.) “ ‘[N]either conflicts in the evidence nor “ ‘testimony which is

subject to justifiable suspicion . . . justif[ies] the reversal of a

judgment, for it is the exclusive province of the [jury] to determine

the credibility of a witness and the truth or falsity of the facts upon

which a determination depends.’ ” ’ ” (Ibid.) Thus, our power

begins and ends with a determination of whether there is any

substantial evidence, contradicted or uncontradicted, which will

support the verdict. (Reichardt v. Hoffman (1997) 52 Cal.App.4th

754, 766.)

A. Plaintiffs’ prima facie case

Plaintiffs established the three elements of their prima facie

case. First, disclosing an illegal activity is protected activity.

11

(§ 1102.5, subd. (b); Mize-Kurzman v. Marin Community College

Dist. (2012) 202 Cal.App.4th 832, 853–854.) Hawkins, in his May 2,

2013 complaint, and Kim, in his August 2012 complaint, disclosed

that Walton-Joseph pressured hearing examiners to change

decisions, in violation of the Vehicle Code. The City makes no

argument that such conduct complies with the Vehicle Code, and we

therefore treat this as a concession the conduct is illegal.

Instead, the City minimizes plaintiffs’ complaints as being

mere “personal grievances” about Walton-Joseph’s “management

style.” Certainly, Walton-Joseph’s management style concerned

plaintiffs and, by itself, might not be actionable. (See, e.g., Patten v.

Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378,

1385 [complaining about internal personnel matters not protected

activity].) However, plaintiffs simultaneously complained about

violations of the Vehicle Code. Therefore, whether plaintiffs

devoted the bulk of their written complaints to Walton-Joseph’s

poor management style or to her pressuring hearing examiners to

change decisions is irrelevant. The point is plaintiffs disclosed the

violations. Indeed, the City admitted the alleged violations of the

Vehicle Code formed the essence of plaintiffs’ case. The City’s

counsel, when examining Walton-Joseph at trial, referred to the

“heart of why we’re here. There are a lot of complaints made by

various hearing examiners as to you forcing them to change their

decisions.”

Next, plaintiffs established the second element of their prima

facie case: the City subjected plaintiffs to an adverse employment

action by firing them.

We therefore proceed to the third element of plaintiffs’ prima

facie case, whether a causal link exists between plaintiffs’

whistleblowing and their termination. Circumstantial evidence

12

such as proximity in time between protected activity and alleged

retaliation may establish a causal link. (Morgan v. Regents of

University of California (2000) 88 Cal.App.4th 52, 69, 105.) Here,

Kim raised his concerns in writing in August 2012. Hawkins raised

them in writing in May 2013. Hawkins’s complaint prompted a

formal investigation, which concluded in October 2013. Plaintiffs

were fired soon thereafter, Hawkins in November 2013 and Kim in

December 2013. The closeness in time from the complaints and

investigation to the City’s firing of plaintiffs establishes the

requisite causal link.

Even if we found that a long period elapsed between the

protected activity and the terminations, a causal connection

between them would still be established so long as the City engaged

in a pattern of conduct consistent with a retaliatory intent. (See

Wysinger v. Automobile Club of Southern California (2007)

157 Cal.App.4th 413, 421.) In 2013, after Kim complained about

being pressured to change decisions, he was counseled about how he

handled two hearings. Then, in August 2013, on a day when Kim

called in sick Heinsius made Kim get a doctor’s note, which was

unusual after just a one-day illness. Similarly, Hawkins had been

openly and anonymously complaining about violations of the

Vehicle Code since July 2012. Thereafter, he was counseled in

January 2013. The jury could have believed that the City’s pattern

of counseling Kim and Hawkins was part of a retaliatory conduct.

B. Legitimate, nonretaliatory reasons for the terminations

Plaintiffs having established their prima facie case, the

burden shifts to the City to establish legitimate, nonretaliatory

reasons for firing plaintiffs. We will assume that the City met that

burden. There was evidence plaintiffs had engaged in improper

conduct at times during hearings. Kim did not dispute at trial that

13

his conduct at two hearings warranted counseling. Hawkins also

had been counseled throughout his tenure at the City, the last time

in January 2013, and members of the public had complained about

his brusque and dismissive manner. We therefore proceed to the

final element of plaintiffs’ retaliation cause of action.

C. Pretext

In responding to an employer’s showing of a legitimate reason

for the complained-of action, a plaintiff cannot show merely that the

employer’s decision was wrong, mistaken, or unwise. (Morgan v.

Regents of University of California, supra, 88 Cal.App.4th at p. 75.)

Rather, the employee must 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 a

nondiscriminatory reason. (Ibid.)

Here, there was evidence to support the jury’s finding that the

City’s proffered reasons for firing plaintiffs were pretextual. First,

there was evidence plaintiffs were not fired because of how they

conducted hearings or for behavioral problems. As to Hawkins, in

2011 and before, issues had been raised about his behavior at

hearings and at the office. Yet, despite being placed on a months-

long leave in summer 2011, Hawkins was allowed to return to work

in November 2011. Also, Hawkins was last counseled about his

conduct in January 2013. Yet, he was not fired until 10 months

later, in November 2013. Thus, notwithstanding the supposed

problems with Hawkins’s work, he was allowed to continue working

time and again. Only after Hawkins complained in writing, thereby

prompting an investigation which found against him, was he fired.

To this, add Sanchez’s testimony about that last January 2013

14

counseling session. Sanchez, who was Walton-Joseph and

Heinsius’s fellow office manager, testified about irregularities

surrounding that counseling session. Specifically, although

Heinsius supervised the office where the alleged misconduct

occurred, Sanchez, and not Heinsius, was instructed to counsel

Hawkins. At trial, Sanchez openly wondered why he was told to

conduct the counseling session. From this, the jury could have

reasonably inferred that the City was punishing Hawkins for his

prior complaints rather than any improper conduct at hearings.

Similarly, Kim had just two counseling sessions between May

and July 2013. Before that, he was meeting standards and was

rated “competent” in a 2012 performance evaluation. Thus, the jury

could have found that Kim’s miniscule record of discipline was not

why he was fired.

Second, there was overwhelming evidence that Walton-Joseph

and Heinsius pressured hearing examiners to change decisions,

thereby giving the City a motive to fire people who complained.

Lily Mazala testified that Heinsius and Walton-Joseph told her to

change decisions: “Liable. Liable. Liable. Everything had to be

liable.” Harunobu Nishii testified that Walton-Joseph interfered

with his decisions, asking him to consider evidence not presented at

hearings. Sheri Ross refused Heinsius’s request that she change a

decision, telling him if he wanted it changed, he could sign his own

name. Kunkaew also had been asked to change decisions. Even the

City’s own witness, Cynthia Duenas, agreed that Walton-Joseph

told her to change a decision, albeit from liable to not liable. Of the

hearing examiners who complained, three put their complaints in

writing: Hawkins, Kim, and Kunkaew. All three complained about

Walton-Joseph’s management style. But only plaintiffs raised the

additional issue of interference with the impartial hearing process.

15

This evidence shows that the City singled out plaintiffs from others

who complained. Indeed, Walton-Joseph made statements to

Hawkins that the jury could have found were direct threats of

retaliation. After their altercation in August 2011, she told

Hawkins that when she became office manager there would be

changes, starting with him. Although Hawkins wasn’t fired until

two years after this threat, a reasonable inference is that Walton-

Joseph made good on it after Hawkins complained about her

interference in the hearing process.

Third, the City points to evidence that a supposedly

disinterested party, Shelly Del Rosario, decided to fire plaintiffs.

Del Rosario became the senior personnel analyst in August 2013.

She inherited a backlog of discipline matters going back to 2009,

including the August 2011 case pertaining to Hawkins. Based on

her review of plaintiffs’ files, she recommended firing them. The

jury could have found this explanation for firing plaintiffs

implausible. Quirante, the City’s designated person most

knowledgeable about the terminations, testified at trial that

Hawkins was fired in 2013 based on the 2011 request for discipline.

Yet, Quirante did not mention the 2011 request for discipline as the

basis for Hawkins’s 2013 termination at his deposition. The jury

was entitled to reject the City’s explanation that it fired Hawkins in

2013 for something he did in 2011. (See Stevens v. Parke, Davis &

Co. (1973) 9 Cal.3d 51, 67–68 [jury may weave cloth of truth from

evidence].)

Finally, we cannot discount that the jury may have resolved

credibility determinations against the City. Walton-Joseph, for

example, denied asking hearing examiners to change decisions and

denied that she yelled or otherwise behaved inappropriately.

However, Sanchez testified that numerous hearing examiners

16

complained about Walton-Joseph. Sanchez also personally saw

Walton-Joseph “lose it” after he admonished her about her comment

that Hawkins was not Black enough. Moreover, hearing examiners

uniformly testified about Walton-Joseph’s unprofessional behavior.

Thus, the jury could have weighed Walton-Joseph’s denials about

her misconduct against the testimony of numerous hearing

examiners and her fellow office manager to conclude that the City’s

proffered reasons for firing plaintiffs were implausible.

II. PAGA penalty

The trial court assessed $20,000 in penalties under PAGA

against the City, with $5,000 payable to plaintiffs and $15,000

payable to the Labor and Workforce Development Agency (LWDA).

The City contends that the penalty award must be reversed because

plaintiffs did not comply with prefiling notice requirements.6 We

disagree.

The Legislature enacted PAGA to further the public interest

of allowing aggrieved employees acting as private attorneys general

to recover civil penalties for Labor Code violations, with the

understanding that labor law enforcement agencies retain primacy

over private enforcement efforts. (Lopez v. Friant & Associates,

LLC (2017) 15 Cal.App.5th 773, 777–778.) Under PAGA, an

aggrieved employee may file a representative action on behalf of

himself or herself and other current and former employees to

recover civil penalties. (Id. at p. 777.) PAGA claims function “as a

substitute for an action brought by the government itself.” (Arias v.

6 Although plaintiffs take a more expansive view of the City’s

argument in their respondents’ brief, we view it as limited to the

adequacy of plaintiffs’ notice they were pursuing a representative

action.

17

Superior Court (2009) 46 Cal.4th 969, 986.) Before a plaintiff may

pursue a PAGA claim, he or she must comply with section 2699.3.

That section requires an aggrieved employee, before filing a civil

action, to give written notice to the LWDA and to his or her

employer of the “specific provisions of this code alleged to have been

violated, including the facts and theories to support the alleged

violation.” (§ 2699.3, subd. (a)(1)(A); Williams v. Superior Court

(2017) 3 Cal.5th 531, 545.)

The City complains that plaintiffs did not comply with

prefiling notice requirements, citing Kahn v. Dunn-Edwards Corp.

(2018) 19 Cal.App.5th 804 (Kahn). The terse prefiling notice in

Kahn referred to “ ‘my claims’ ” regarding improper wage

statements, and to a failure to pay “ ‘all of my earned wages,’ ” all

without reference to any other current or former employee. (Id. at

p. 807.) Because plaintiff Kahn’s notice “applied only to him, it

failed to give the [LWDA] an adequate opportunity to decide

whether to allocate resources to investigate Kahn’s representative

action.” (Id. at p. 809.) Because the notice suggested only an

individual violation, it also failed to give the employer notice that it

was a representative claim. (Ibid.)

We express no opinion as to the correctness of Kahn’s holding.

Whether correct or not, we do not interpret Kahn so literally as to

hold that a plaintiff whose prefiling notice uses the incorrect

pronoun—I instead of we and my instead of our—fails to comply

with the Labor Code’s administrative procedures. Rather, we must

determine whether the prefiling notice, as a totality, gave the

requisite notice.

Plaintiffs’ prefiling notices are materially different than the

notice in Kahn. Their notices referred to complaints that Walton-

Joseph had hearing officers change written decisions from not liable

18

to liable. Hawkins referred to Walton-Joseph’s actions “in coercing

employees, including Claimant to change their decisions.” (Italics

added.) Similarly, Kim referred to another hearing examiner who

had complained to government officials about the conduct. Thus,

the notices here expressly referred to conduct not limited to the

individual complainants. They complained about conduct that

impacted them and fellow hearing examiners, as well as the public.

We therefore conclude that plaintiffs complied with section 2699.3.

III. Attorney fees

The trial court found that plaintiffs were entitled to their

attorney fees under the Bane Act, PAGA, and Code of Civil

Procedure section 1021.5. The City contends that plaintiffs were

not entitled to attorney fees under those statutes. We have already

rejected the City’s claim that plaintiffs did not properly bring a

PAGA claim. Therefore, attorney fees were appropriate under that

law. (Lab. Code, § 2699, subd. (g)(1).) And, as we next discuss, fees

were also appropriately awarded under Code of Civil Procedure

section 1021.5.

Code of Civil Procedure section 1021.5 codifies the private

attorney general doctrine adopted in Serrano v. Priest (1977)

20 Cal.3d 25. The section provides that a court may award attorney

fees to a successful party in any action which has resulted in the

enforcement of an important right affecting the public interest if:

(1) a significant benefit, pecuniary or nonpecuniary, has been

conferred on the general public or a large class of persons, (2) the

necessity and financial burden of private enforcement, or of

enforcement by one public entity against another public entity, are

such as to make the award appropriate, and (3) such fees should not

in the interest of justice be paid out of any recovery. (Code Civ.

Proc., § 1021.5.) Whether a party claiming attorney fees has met

19

his or her burden of proving these prerequisites rests within the

trial court’s sound discretion, which shall not be disturbed on

appeal absent a clear abuse. (Ryan v. California Interscholastic

Federation (2001) 94 Cal.App.4th 1033, 1044.) Enforcement

through litigation of a constitutional or statutory policy does not

necessarily confer a significant public benefit. (Woodland Hills

Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939.)

Rather, the “significance of the benefit conferred is determined from

a realistic assessment of all the relevant surrounding

circumstances.” (Ryan, at p. 1044.)

Here, the City argues that a significant benefit was not

conferred on the public because all the action did was remedy

retaliation for whistleblowing. However, the City ignores the trial

court’s finding that the action also conferred a significant public

benefit because the public is entitled to fair hearings with respect to

parking citations.7 The Vehicle Code entitles the public to “an

independent, objective, fair, and impartial review of contested

parking violations.” (Veh. Code, § 40215, subd. (c)(3).) Plaintiffs’

action revealed that, for years, the City had been pressuring,

sometimes successfully, hearing examiners to change decisions,

usually to find that refunds were not warranted. In short, the

public had been deprived of independent and impartial hearings.

Instead, the City undermined the process provided by the Vehicle

Code to generate revenue. It is “difficult to imagine a more

fundamental public right than that the tribunal deciding a litigant’s

fate, even a tribunal convened at the first level of review to

7 The City also suggests that no benefit was conferred on the

public because the internal investigation Garcia conducted found no

instances of misconduct. In other words, the City did not engage in

misconduct because the City said so.

20

determine whether a litigant is liable for a parking violation, be a

tribunal properly convened under the law and authorized by law to

make the decision.” (Weiss v. City of Los Angeles (2016) 2

Cal.App.5th 194, 220; see Goldberg v. Kelly (1970) 397 U.S. 254.)

IV. Contentions regarding the Bane Act

The City has raised several contentions regarding the Bane

Act, including that there was insufficient evidence to support the

verdict on that cause of action and that instructional error requires

its reversal. Given that we have upheld the verdict on the

section 1102.5 cause of action for retaliation, we need not reach the

Bane Act issues. That is, the damages plaintiffs sought and were

awarded on the Bane Act cause of action were the same as on the

retaliation cause of action. Therefore, even if we reversed the

verdict on the Bane Act, there would be no impact on the damage

awards because we are not reversing the section 1102.5 verdict. In

addition, we have explained why the attorney fees award does not

depend on the viability of the Bane Act cause of action. No

miscarriage of justice thus could accrue to the City from any error

regarding the Bane Act. (See Cal. Const., art. VI, § 13.)

DISPOSITION

The judgments and orders are affirmed. Todd Hawkins and

Hyung Kim are awarded their costs on appeal.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J. EGERTON, J.

Filed 9/25/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

TODD HAWKINS et al.,

Plaintiffs and Respondents,

v.

CITY OF LOS ANGELES,


B279719, B282416

(Los Angeles County

Super. Ct. Nos. BC541066,

BC543766)

CERTIFICATION AND

ORDER FOR PARTIAL

PUBLICATION

The opinion in the above-entitled matter filed September 9,

2019, was not certified for publication in the Official Reports. For

good cause it now appears that the opinion should be partially

published in the Official Reports and it is so ordered.

DHANIDINA, J. LAVIN, Acting P. J. EGERTON, J.

* Pursuant to California Rules of Court, rules 8.1105 and

8.1110, this opinion is certified for publication with the exception of

parts II and IV of the Discussion.

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