Willis v. City of Carlsbad

• Decision Date: 22 April 2020
• Docket Number: D074988
• Parties: James WILLIS, Plaintiff and Appellant, v. CITY OF CARLSBAD, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

48 Cal.App.5th 1104

262 Cal.Rptr.3d 528

James WILLIS, Plaintiff and Appellant,

v.CITY OF CARLSBAD, Defendant and Respondent.

D074988

Court of Appeal, Fourth District, Division 1, California.

Filed April 22, 2020

Gilleon Law Firm and James C. Mitchell for Plaintiff and Appellant.

Daley & Heft and Lee H. Roistacher, Mitchell D. Dean, Heather E. Paradis, Garrett A. Smee ; Office of the City Attorney and Celia A. Brewer, Walter C. Chung for Defendant and Respondent.

O'ROURKE, J.

Plaintiff and appellant James Willis, a peace officer employed by the Carlsbad Police Department (Department), sued defendant and respondent City of Carlsbad (City) alleging in part that it engaged in whistleblower retaliation against him in violation of Labor Code section 1102.5, subdivision (b) by denying him promotions after he reported what he perceived was misconduct by another officer and complained about a Department program he believed was an unlawful quota system. Before trial, City successfully moved to strike allegations of other assertedly retaliatory acts within Willis's cause of action on grounds he had not timely presented a government tort claim within six months of the acts as required by the Government Claims Act ( Gov. Code,¹ § 911.2 ). Thereafter, the trial court in limine excluded evidence of any violations by City of the Public Safety Officers Procedural Bill of Rights Act (POBRA, or at times, the Act; § 3300 et seq.), while at the same time permitting City to present evidence Department had denied Willis promotion because of a June 2012 e-mail he wrote under an assumed name lodging the officer misconduct accusations. The jury returned a verdict finding in favor of Willis that his reporting of City's violation of law was a contributing factor in City's decision to deny him the promotion. However, it also found City would have denied Willis his promotion anyway for legitimate independent reasons. Accordingly, the court entered judgment in City's favor on the whistleblower retaliation claim.

Willis contends the trial court erred as a matter of law by striking those portions of his section 1102.5 cause of action because the Government Claims Act's six-month statute of limitations was either equitably tolled or his cause of action had not accrued by reason of the continuing tort/continuing violation doctrine. He further contends the court's evidentiary rulings were a prejudicial abuse of discretion. We conclude the trial court did not err, and accordingly affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Willis, a peace officer since 2000, was hired by City in 2008. In 2009 and 2010 his supervisors gave him overall exceptional performance ratings. In 2011, Willis applied for and was selected to be a detective in the Department's crimes of violence unit, where he worked with two other detectives. He received exceptional performance evaluations in that position as well.

In June 2012, Willis created a fictitious e-mail account under a pseudonym and wrote a critical e-mail about another detective who worked in his unit, sending it to various government entities, public information officers and news organizations.² Several months later, during an investigation about the e-mail, Willis admitted he wrote it. In late 2012, Willis took family leave for the birth of his child. When he returned to work in January 2013, Willis's captain informed him he was being reassigned from the crimes of violence unit to patrol.³

In April 2013, Willis received an exceptional performance rating for his work in 2012. But he was also investigated and interviewed about the other officer's possible misconduct and received a written reprimand stating he had violated Department policy by failing to promptly bring his allegations to a Department manager or supervisor. Willis appealed that decision.

In September 2013 and December 2013, Willis applied for open detective positions in the crimes of violence unit but was passed over in favor of other candidates.

In March 2014, Willis was promoted to corporal. That month, Willis missed receiving an overall exceptional performance review by one criteria; his supervisors rated him as meeting standards. The following month, a Department captain found Willis's appeal of his written reprimand had merit. He advised Willis the document would be removed from his personnel file and destroyed. However, the sustained finding of misconduct remained in Willis's file. Willis received exceptional overall performance ratings on his next few evaluations.

In early 2015, Willis, who had since been elected president of the local police officer's association, learned that Department had implemented a monthly performance review for officers working patrol and traffic. Willis believed the review program was an illegal quota under the Vehicle Code because it collected statistical data, including about arrests and citations. At the next meeting between Department and the association, Willis complained about the review program and its implementation. The management disagreed that the program was illegal. Eventually the police officer's association demanded that Department stop the program.

In July 2015, Willis's supervisors passed him over for a promotion to sergeant. In December 2015, Willis brought a complaint with the Department of Fair Employment and Housing as well as a government tort claim against City, alleging he had suffered continued retaliation by City and Department, evidenced by his 2013 transfer to patrol; his October 2013 written reprimand; denials of requests for transfer he made in 2013, 2014 and 2015; and the July 2015 denial of his promotion to sergeant. City deemed all acts occurring before June 29, 2015—six months before the date it received Willis's claim—untimely as occurring beyond the six-month period in which to present a claim under the Government Claims Act. City denied Willis's claim with regard to the July 2015 denial of promotion to sergeant.⁴

In February 2016, Willis filed a complaint against City. He alleged various causes of action, including for retaliation in violation of section 1102.5 for his actions in (1) reporting misconduct of the other officer in 2012 and (2) reporting City's violation of the Vehicle Code for its performance review program.⁵ With regard to Willis's section 1102.5 retaliation cause of action, City moved to strike allegations Willis had made of various assertedly retaliatory acts that had occurred before June 24, 2015, including actions taken in response to Willis's 2012 e-mail, on grounds they were time-barred by the six-month government claims presentation requirement and thus irrelevant, false or improper within the meaning of Code of Civil Procedure section 436. In opposition, Willis argued he had pleaded sufficient facts to invoke the continuing violation doctrine set forth in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 111 Cal.Rptr.2d 87, 29 P.3d 175. Pointing out he alleged he had a pending administrative complaint to the Labor Commissioner for City's January 2013 retaliation, Willis also argued the six-month period for filing a government claim had been equitably tolled.

The trial court struck the allegations, ruling Willis could recover only for acts of retaliation occurring within six months of the day he filed his government tort claim; that neither tolling of that limitations period nor the continuing violation doctrine applied to excuse Willis's untimely claims.⁶

The matter proceeded to trial on Willis's retaliation causes of action. Willis's section 1102.5 whistleblower claim was based solely on the theory that City denied him his sergeant promotions in retaliation because of his 2015 complaint about the program that he perceived was an unlawful quota. The trial court instructed the jury that if Willis proved his disclosure of an unlawful act was a contributing factor to City's denials of promotions in July 2015 and March 2016, City was not liable if it proved by clear and convincing evidence it would have denied Willis promotion anyway at those times for legitimate independent reasons.

The jury returned a special verdict finding in Willis's favor that his reporting of City's violation of law was a contributing factor in City's decision to deny him the promotions. It also found City would have denied Willis his promotions in July 2015 or March 2016 anyway for legitimate independent reasons. Accordingly, the court entered judgment in City's favor on Willis's claims, ordering that Willis would take nothing on this complaint and awarding City its costs.

Willis timely filed this appeal from the judgment and the trial court's order granting City's motion to strike.

DISCUSSION

I. City's Motion to Strike

Willis contends the trial court erred as a matter of law by striking the portions of his pleading alleging retaliation for his 2012 reports to Department management that another officer had committed timecard fraud and perjury. He first argues the statute of limitations for filing his section 1102.5(b) cause of action was equitably tolled by his June 2013 retaliation complaint to the Labor Commissioner, permitted under Labor Code sections 98 and 98.7, rendering his government tort claim timely as to City's actions. He additionally contends the six-month period to file a government claim had not run because his claims, assertedly based on similar retaliatory acts, were subject to the continuing tort or continuing violation doctrines⁷ such that they did not accrue for purposes of filing his government claim. According to Willis, the trial court should have ruled the accrual date for his section 1102.5 action did not occur until July 2015, when he was denied promotion to sergeant.

A. Standard of Review

Code of Civil Procedure section 436 permits a court on its own motion or on motion by a party to "[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." ( Code Civ. Proc., §...