Magnandonovan v. City of Los Angeles, B192892 (Cal. App. 10/29/2008)

• Decision Date: 29 October 2008
• Docket Number: B192892
• Parties: LYNN MAGNANDONOVAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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LYNN MAGNANDONOVAN, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Appellant.

B192892

Court of Appeals of California, Second Appellate District, Division Five

October 29, 2008

Not to be Published

Appeals from a judgment of the Superior Court of Los Angeles County, No. BC286908, W. Michael Hayes, Judge. (Assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions.

Eisenberg and Hancock, Jon B. Eisenberg, William N. Hancock; Samuel J. Wells; and Michael P. King for Plaintiff and Appellant

Rockard J. Delgadillo, City Attorney (Los Angeles County), and Claudia McGee Henry, Senior Assistant City Attorney, for Defendant and Appellant.

TURNER, P.J.

I. INTRODUCTION

In People v. Hill (1998) 17 Cal.4th 800, 819-820, Associate Justice Kathryn Mickle Werdegar, speaking for a unanimous Supreme Court wrote: "Prosecutors . . . are held to an elevated standard of conduct. `It is the duty of every member of the bar to "maintain the respect due to the courts" and to "abstain from all offensive personality." (Bus. & Prof. Code, § 6068, subds. (b) and (f).) A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. (People v. Kelley (1977) 75 Cal.App.3d 672, 690.) As the United States Supreme Court has explained, the prosecutor represents "a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." (Berger v. United States (1935) 295 U.S. 78, 88.) Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve. [Citations.]' [Citations.]" Here, we address a retaliation case in which plaintiff, a now terminated deputy city attorney, among other things admitted she angrily threatened a superior court commissioner that he would have to answer to his creator for a judicial ruling.

Defendant, the City of Los Angeles, appeals from a judgment, after a jury trial, in favor of plaintiff, Lynn Magnandonovan. Defendant contends: plaintiff failed to exhaust her administrative remedies under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.) and Labor Code section 1102.5; plaintiff failed to comply with the Government Claims Act (Gov. Code, § 810 et seq.); and there was no substantial evidence defendant's reasons for discharging plaintiff were a pretext for retaliation. Plaintiff appeals from the judgment solely with respect to attorney fees. We conclude: defendant, a public entity, is not subject to liability on a common law wrongful discharge in violation of public policy claim; defendant waived its exhaustion arguments; a Fair Employment and Housing Act cause of action is not subject to the government claim requirement; and defendant presented strong, uncontradicted evidence of a legitimate, non-retaliatory reason for discharging plaintiff, in the face of which plaintiff's weak pretext evidence was insufficient as a matter of law to support a reasonable inference of intentional retaliation; therefore, the judgment must be reversed with directions to enter a judgment in defendant's favor. Plaintiff's appeal relating to attorney fees thus has no merit.

II. BACKGROUND

Plaintiff joined the Los Angeles City Attorney's office as a law clerk in 1987 and as a Deputy City Attorney I in 1990. She received "paygrade" advances to Deputy City Attorney II in 1992 and to Deputy City Attorney III in 1998. On March 22, 2001, plaintiff filed an administrative complaint with the Department of Fair Employment and Housing alleging harassment and discrimination on the basis of gender, race, and national origin. The administrative complaint was settled on May 2, 2001. The settlement agreement provided, among other things, "[Plaintiff] shall be appointed the attorney in and supervisor over the newly established Hate Crimes Unit within the Criminal Branch of the [city attorney's office]." Nearly eight months later, on December 20, 2001, plaintiff was placed on paid administrative leave. This followed an incident in which plaintiff said a superior court commissioner would have to answer to his creator for a judicial ruling she disliked. Plaintiff filed a second administrative complaint on May 1, 2002, and received a right to sue letter. In her second administrative complaint, plaintiff alleged, "I believe I was subjected to employment discrimination and a hostile work environment because of my sex (female), race (Caucasian), and national origin (American) and in retaliation for complaining of discrimination and harassment and filing and resolving a claim pursuant to the Fair Employment and Housing Act." Also on May 1, 2002, plaintiff filed a government claim. On June 12, 2002, plaintiff's claim was denied. Defendant issued a June 28, 2002 notice of proposed termination. This was followed by a November 6, 2002 revised notice. Plaintiff filed this lawsuit on December 12, 2002. She was discharged one year later, on December 29, 2003.

The operative pleading is a March 19, 2004 third amended complaint. It contains six causes of action: gender discrimination in violation of the Fair Employment and Housing Act; retaliation in violation of the Fair Employment and Housing Act; retaliation in violation of public policy (Cal. Const., art. I, § 8; Fair Employment and Housing Act; Labor Code, § 1102.5; Los Angeles Admin. Code, Div. 4, Ch. 7, Art. 9.5; and 42 U.S.C. § 1983); discrimination and harassment in violation of public policy; intentional severe emotional distress infliction; and injunctive relief. The matter went to trial, however, only on two retaliation causes of action—in violation of the Fair Employment and Housing Act and in violation of public policy. The jury was instructed: "[Plaintiff's] claims for gender discrimination and harassment in violation of [the Fair Employment and Housing Act], discrimination and harassment in violation of public policy, intentional infliction of emotional distress, slander per se, invasion of privacy, declaratory relief and for an injunction are no longer issues in this case."

III. DISCUSSION

A. Defendant, A Public Entity, Is Immune From Liability On A Common Law Wrongful Discharge In Violation Of Public Policy Claim

It was error to submit the common law retaliation in violation of public policy cause of action to the jury. A common law claim for wrongful discharge in violation of public policy is unavailable against a public entity such as defendant. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 898-899.) Defendant noted this issue in a footnote to its new trial motion stating, "Plaintiff's public policy claim is also barred based on governmental immunity. Kemmerer v. County of Fresno, 200 Cal.App.3d 1426 (1988)." As discussed below, however, the error does not require that the judgment, insofar as it is premised on a violation of the Fair Employment and Housing Act, be reversed.

Under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, a common law tort action lies for wrongful discharge in violation of a firmly established public policy. This includes the public policies reflected in the Fair Employment and Housing Act. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160-1161 [disability discrimination]; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897 [age discrimination].) In Miklosy v. Regents of University of California, supra, 44 Cal.4th at pages 898-899, however, our Supreme Court held a Tameny claim does not lie against a public entity. (Accord, Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1514; Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 909; see Kemmerer v. County of Fresno, supra, 200 Cal.App.3d at p. 1437.) As noted above, this case was tried on two causes of action—retaliation in violation of the Fair Employment and Housing Act and a violation of fundamental public policy. The cause of action for retaliation in violation of public policy is a common law claim under Tameny. But a public policy violation claim does not lie against defendant, a public entity. (Miklosy v. Regents of University of California, supra, 44 Cal.4th at pp. 898-899; Ross v. San Francisco Bay Area Rapid Transit Dist., supra, 146 Cal.App.4th at p. 1514; Palmer v. Regents of University of California, supra, 107 Cal.App.4th at p. 909.)

But the error in submitting the Tameny cause of action to the jury does not require that the judgment be reversed insofar as it is premised on the Fair Employment and Housing Act. It is the general rule that, "[A] judgment will not be reversed on appeal if there is substantial evidence to support the verdict on any theory on which it might have been reached." (Clement v. State Reclamation Bd. (1950) 35 Cal.2d 628, 643, limited by Albers v. Los Angeles County (1965) 62 Cal.2d 250, 262, as discussed in Belair v. Riverside County Flood Control District (1988) 47 Cal.3d 550, 562-563; accord, Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673 [stating general rule]; Gillespie v. Rawlings (1957) 49 Cal.2d 359, 368-369, disapproved on another point in Nevarez v. Carrasco (1969) 1 Cal.3d 518, 522, as explained in Bozanich v. Kenny (1970) 3 Cal.3d 567, 570-571 [evidence supported one of two theories that went to the jury; error not prejudicial].) As explained in Rather v. City & County of San Francisco (1947) 81 Cal.App.2d 625, 636: "It is settled law that `a general verdict imports findings in favor of the prevailing party on all material issues, and if upon such a verdict one issue alone is sustained by the evidence and is not affected by any error, the want of evidence to...