NAVARRETA v. MT. SAN JACINTO COM. COLLEGE DIST.No. E049530.

RON NAVARRETA et al., Plaintiffs and Appellants,
v.
MT. SAN JACINTO COMMUNITY COLLEGE DISTRICT et al., Defendants and Respondents.

Court of Appeals of California, Fourth District, Division Two.
Filed April 20, 2011.
Holstein, Taylor and Unitt and Brian C. Unitt, for Plaintiffs and Appellants Ron Navarreta, Scott Jensen, and Pedro (Peter) Gonzalez.
Law Offices of Steven L. Stern and Steven L. Stern for Plaintiff and Appellant Chris Kuhl.
Carpenter, Rothans & Dumont, Steven J. Rothans and Jill W. Babington for Defendants and Respondents Mt. San Jacinto Community College District and Ryan Myers.
McCune & Harber, Stephen M. Harber and Garrett J. Hines for Defendant and Respondent Mark Medina.
Declues Burkett & Thompson, Jeffrey P. Thompson and Gregory A. Wille for Defendant and Respondent Kevin Segawa.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

HOLLENHORST Acting P. J.

Plaintiffs Ron Navarreta, Scott Jensen, Peter Gonzalez and Chris Kuhl (collectively referred to as Plaintiffs) appeal from a judgment in favor of defendants Mt. San Jacinto Community College District, Ryan Myers, Mark Medina, and Kevin Segawa, (collectively referred to as Defendants), entered after the trial court sustained without leave to amend the demurrer of Defendants to the second amended complaint of Plaintiffs. The trial court found that Plaintiffs' claims were barred because Plaintiffs were not in a protected category. Rather, they were "simply employees who were terminated while on probation." Plaintiffs challenge the trial court's ruling.

I. PROCEDURAL BACKGROUND AND FACTS

A demurrer admits all the truth of all facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) Accordingly, we will refer to the allegations in the complaint for the chronology of this matter. (See Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 954.)

The Mt. San Jacinto Community College District (District) has its own police force whose officers handle all criminal complaints occurring on or near District's property and perform the same duties as any other California peace officer. Plaintiffs were hired by District.

A. The Plaintiffs

1. Chris Kuhl

Chris Kuhl (Kuhl) was hired as a level one reserve police officer for the District's police department on May 20, 2006. In October 2007, he became a paid full-time temporary officer, until January 8, 2008, when he accepted a permanent full-time position as police officer. The following month, Kuhl attended field training officer school. Field training officers are charged with ensuring that new police officers are capable of operating as solo police officers. In March 2008, Kuhl was assigned the task of training a newly hired police officer named Ryan Myers (Myers). After a few weeks of training Myers, Kuhl noticed that Myers's officer safety habits were "extremely deficient" and that Myers had lied to cover his mistakes. Kuhl spoke with Chief Kevin Segawa (Chief Segawa, or "the chief") about Myers and was told to "keep working" with Myers. On several occasions during the first phase of Myers's training, Kuhl turned in daily observation reports to Chief Segawa rating Myers as "unacceptable." After five weeks under Kuhl's supervision, Myers was turned over to Corporal Mark Medina (Medina) to continue the second phase of training.

In or around April 2008, Chief Segawa told Kuhl that if Kuhl impounded 100 vehicles that month, he would be able to ride a brand new Honda motorcycle as his patrol vehicle. Chief Segawa instructed Kuhl to "exclusively" use Pirots Towing in San Jacinto for all vehicle impounds, even those impounded at the Menifee Valley campus, which was 25 miles away.

Myers returned to training with Kuhl after approximately four weeks with Medina. Myers's deficiencies in critical areas remained. Myers continued to unsafely and improperly search suspects and vehicles. When confronted by Kuhl, Myers lied and then became very agitated and attempted to change his story. During the third phase of Myers's training, Kuhl recommended to Chief Segawa that Myers be terminated based on his continual poor performance and integrity issues. In response, Chief Segawa removed Myers from Kuhl's supervision and placed Myers directly under his (the chief's) supervision. However, Chief Segawa was not a certified field training officer. Shortly thereafter, Kuhl noticed that other officers began to distance themselves from him. Kuhl later found out that Myers had falsely claimed Kuhl had planted narcotics on a subject. Ron Navarreta and Scott Jensen were both instructed by Chief Segawa and Medina to distance themselves from Kuhl.

On June 2, 2008, Chief Segawa informed Kuhl that his six-month evaluation was rated as poor. The chief also stated that the District was going to terminate Kuhl's employment during his probation period for "an excessive amount of citizen complaints." However, no citizen complaints were ever filed. When Kuhl informed Chief Segawa that a termination would mean that he (Kuhl) would never be hired anywhere, the chief's response was "`[w]ell, if you resign we can make this go away.'" Thus, Kuhl resigned, and Chief Segawa provided Kuhl with an "outstanding evaluation," which was back dated to May 30, 2008.

2. Peter Gonzalez

Peter Gonzalez (Gonzalez) was hired by the District as a reserve officer on December 1, 2006, but was later hired as a full time officer.

In April 2008, Gonzalez was on patrol with Chief Segawa when the chief made a pedestrian stop and investigation of an alleged illegal ice cream vender. Based on the chief's investigation, the vender was taken into custody and transported to the District's Menifee police station. Chief Segawa issued a citation to the vender and released him to immigration authorities. The chief asked Gonzalez to help load the ice cream into the chief's patrol car and accompany him in transporting the ice cream to a place for "safe keeping." Gonzales inquired whether Chief Segawa was going to photograph and then destroy the ice cream. The chief did not respond. Chief Segawa drove to his own residence and asked Gonzalez to help put the ice cream in the chief's freezer. The chief gave some of the ice cream to the neighbor and offered some to Gonzalez, who declined. After Gonzalez refused to accept the ice cream, Chief Segawa stopped talking to Gonzalez and began treating him as an outsider. The next day, Gonzalez reported to his superior, Medina, his concerns about the chief's actions. Medina did nothing.

On May 5, 2008, Gonzalez learned that Chief Segawa intended to fire him. Gonzalez chose to resign. When he went to retrieve his personal property (his sidearm, AR-15 rifle, duty belt and uniforms) from his locker, he found the lock had been cut off and the weapons were left unsecured in the chief's office. The chief had ordered Medina to cut the lock.

3. Ron Navarreta and Scott Jensen

Ron Navarreta (Navarreta) was hired in February 2008 as a campus safety officer, a civilian position. He was promoted to a police officer on May 12, 2008. Scott Jensen (Jensen) started working for the District on June 15, 2008. His training officer was Medina.

In July 2008 Medina began a sexual relationship with another District employee, Meredith Qualls from the Menifee Valley campus. Medina bragged about the affair to other officers and ordered them to look out while he and Qualls engaged in their sexual affair around the police department and campus. Because Medina was preoccupied with the affair, Jensen received little training but was required to act as a lookout while Medina pursued the affair. Jensen asked Navarreta to take over his training, and Navarreta said they should ask Chief Segawa. Navarreta also discussed the situation with Medina. Medina told both Jensen and Navarreta they should not make trouble, as they were still on probation and he could easily have them fired as he had done to others in the past.

On August 11, 2008, Chief Segawa asked Jensen to assist him in the investigation of possible stolen or embezzled District gas cards at the San Jacinto campus. They interviewed and then arrested Tomorrow Horton, taking her to the District station. While in custody, Horton professed her innocence and requested to make a telephone call so that someone would pick up her son from school. Chief Segawa said that if Horton told the truth, she could make the necessary telephone call. Horton confessed, saying she would say whatever they wanted her to say if they would let her call someone to pick up her son from school. The chief then ordered Jensen to leave the room while he (the chief) remained with Horton for 40 minutes behind closed doors. When Horton came out, she told Jensen that she had confessed and the chief typed a letter of resignation for her to sign in lieu of filing charges.

On September 24, 2008, Chief Segawa terminated Navarreta, based on a complaint of alleged sexual/racial harassment made by Myers against both Navarreta and Jensen. When Navarreta denied the charge and asked for a full investigation, he was told none would be conducted, since he was on probation. Later, Myers admitted the accusations were false, but Medina had told Myers that Navarreta and Jensen were trying to get him (Myers) fired. Medina told Jensen, "`I decided to save you . . . this time.'"

After the Horton incident and Navarreta's termination, the relationship between Jensen and Chief Segawa took a "noticeable turn for the wors[e]." Jensen had already reported to the District's attorneys his concerns regarding the false arrest of Horton. Thereafter, in fall 2008, Jensen reported all incidents of misconduct in writing and e-mail to the District, including human resources, the board of trustees, the president, and the District's attorneys. On December 8, 2008, Chief Segawa asked Jensen to write a supplemental report regarding the Horton matter. Jensen's report did not support the chief's handling of the Horton matter. The following day, the chief appeared to be angry with Jensen. On December 11, Jensen was called into a meeting with Chief Segawa and Irma Ramos of the District's human resources. Jensen was shown a letter of reprimand. He was then given a second document, a six-month evaluation indicating his overall performance was unsatisfactory. Jensen called the chief a coward and walked out.

B. The Complaint

This action was initiated on December 9, 2008. Following two demurrers, which were sustained with leave to amend, the second amended complaint (SAC) was filed on April 27, 2009. The SAC asserted 12 causes of action: (1) wrongful termination in violation of public policy (against District); (2) whistleblower retaliation in violation of Labor Code section 1102.5 (against District); (3) hostile environment sexual harassment in violation of California's Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) (against District); (4) retaliation in violation of FEHA (against District); (5) failure to investigate and prevent discrimination in violation of FEHA (against District); (6) violation of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) (hereafter, Bill of Rights Act) (against District); (7) breach of written employer policies (against District); (8) negligent supervision, training and hiring (against District); (9) defamation and slander per se (against Medina and Myers); (10) interference with economic advantage and contractual relationships (against Medina and Myers); (11) intentional infliction of emotional distress (against Defendants); and (12) negligent infliction of emotional distress (against Defendants). Defendants again demurred, and on July 16, 2009, the trial court sustained the demurrer without leave to amend. In reaching its decision, the trial court stated: "Four people were on probation. Four people did not make probation. And that appears to be it when all is said and done." When counsel argued that Plaintiffs' probationary status was irrelevant, the trial court replied, "They are entitled to protection, provided they fall into some protected class of some kind; either by their status of race, age, national origin or they are entitled to protective status because of some thing, activity that they have done that qualifies them. [¶] I don't see either in this case. You say they are whistle-blowers, but they didn't blow any whistles." Following Plaintiffs' motion for reconsideration, the trial court stated, "There's no factual basis in which to take these plaintiffs away from their probationary status and give them a status such that there needs to be a cause for their termination." Plaintiffs appeal.

II. STANDARD OF REVIEW

"`On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, "i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law." [Citation.]' [Citation.] `"`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.]"' [Citation.] `We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory. [Citations.] We are not bound by the trial court's stated reasons, if any, supporting its ruling; we review the ruling, not its rationale. [Citation.]' [Citation.]" (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 433.)

III. DID THE TRIAL COURT ERR IN SUSTAINING THE DEMURRER?

On appeal, Plaintiffs limit their challenges to the trial court's decision to the following claims: (1) whistleblower retaliation (Jensen, Gonzalez, and Kuhl against District); (2) retaliation in violation of FEHA (Jensen against District); (3) violation of the Bill of Rights Act (Plaintiffs against District); (4) breach of written employer policies (Kuhl against District); (5) defamation and slander per se (Kuhl against Medina and Myers); and (6) fraudulent inducement of employment (Jensen against District and Chief Segawa).

A. Probationary Employee

Because the trial court based its decision on the status of Plaintiffs as probationary employees, we begin by considering the relevance of an employee's probationary status. Plaintiffs point out their alleged probationary status was not demonstrated by the allegations in the SAC but was raised by Defendants in what Plaintiffs describe as "speaking demurrers." We agree. The SAC was void of any judicial admission that any of Plaintiffs were in a probationary status at the times of their terminations. For example, Jensen was hired in June 2008 and was terminated in December 2008. There is no allegation that he was in a six-month probation period. Navarreta was hired in February 2008, promoted in May 2008, and allegedly accused of sexual harassment in September 2008, when he was immediately terminated. The only reference to a probationary period is Medina's statement to Jensen and Navarreta, stating, "The two of you are still on probation." Gonzales was hired in December 2006, promoted in March 2008, and then forced to resign in May 2008 after reporting Chief Segawa's actions regarding the ice cream vender. Kuhl was hired in May 2006, promoted to paid temporary police officer in October 2007, accepted as a permanent police officer in January 2008, and terminated in June 2008. Chief Segawa informed Kuhl that the District was going to terminate him during his probation period because of "an excessive amount of citizen complaints." However, the chief gave Kuhl the option of resigning with a letter of recommendation. Clearly, none of the allegations in the SAC amount to an admission that any Plaintiff was a probationary employee. Thus, we agree with Plaintiffs' claim that Defendants, without any proof, led the trial court to believe Plaintiffs were terminated during their probationary period.

Notwithstanding the above, even if we assume Plaintiffs were probationary employees, given the facts before this court, such status is irrelevant. "It is settled law that a probationary (or nontenured) civil service employee, at least ordinarily, may be dismissed without a hearing or judicially cognizable good cause. [Citations.] Such a dismissal does not deprive the employee of a vested, or property, right. [Citations.] A public agency may constitutionally `employ persons subject to removal at its pleasure' [citation], for `"[u]nquestionably, a broad discretion reposes in governmental agencies to determine which [probationary] employees they will retain'" [citation]. [¶] But there is an important exception to this rule, which is founded upon the Fourteenth Amendment. It arises where there is a deprival of the `liberty' guaranteed all persons by that amendment's due process clause. The exception will be applied where the probationary employee's job termination, or dismissal, is based on charges of misconduct which `stigmatize' his reputation, or `seriously impair' his opportunity to earn a living [citation], or which `might seriously damage his standing or associations in his community' [citations]." (Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 345-346, fn. omitted (Lubey).)

"Another exception to the rule lies where the public employer's termination of the employment `was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, . . .' [Citations.]" (Lubey, supra, 98 Cal.App.3d at p. 346, fn. 1.)

"Where there is such a deprival of a `liberty interest' the employee's `remedy mandated by the Due Process Clause of the Fourteenth Amendment is "an opportunity to refute the charge" [and] "to clear his name."' [Citation.] He must be afforded `"`notice and opportunity for hearing appropriate to the nature of the case" before the termination becomes effective.'"' [Citation.]" (Lubey, supra, 98 Cal.App.3d at p. 346, fn. omitted.)

Here, Jensen and Navarreta were told that a formal sexual harassment complaint had been initiated against them, resulting in the immediate termination of Navarreta. Later, Jensen was reprimanded for not reporting "alleged misconduct" by Medina and Myers, resulting in Jensen's termination. Gonzalez resigned after he complained about Chief Segawa's handling of the alleged illegal ice cream vendor and was led to believe that the chief planned to fire him (Gonzalez). The chief had Gonzalez's lock cut off his locker and its contents removed. When Gonzalez questioned the chief's actions, the chief yelled that he had fired Gonzalez for "lack of [o]fficer safety reasons." Kuhl was told he was being terminated because of "an excessive amount of citizen complaints." Clearly, charges of misconduct were given as the reasons for each officer's termination. However, not one officer was provided with his due process rights. There was no notice or opportunity for a hearing, nor were the officers given the opportunity to refute the charges or to clear their names. Thus, it is fair to say Plaintiffs' reputations were "stigmatized," their chances of future employment impaired, and their standings in the community were damaged. (Lubey, supra, 98 Cal.App.3d at pp. 346-347.)

Based on the above, we conclude the probationary status of Plaintiffs was irrelevant, given the fact that each officer was charged with misconduct as the reason for termination.

B. Whistleblower Retaliation—Labor Code Section 1102.5

Labor Code section 1102.5 prohibits termination of an employee "for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." (Lab. Code, § 1102.5, subds. (b), (d), (e).) Here, Jensen, Gonzalez, and Kuhl contend the allegations in the SAC are sufficient to state their claims for whistleblower retaliation against the District; however, to the extent they are not, Plaintiffs argue they can amend the SAC to state their claims. In response, the District argues Plaintiffs failed to report the alleged misconduct to a government agency for purposes of Labor Code section 1102.5. As to Jensen and Gonzales, the District argues they resigned, and the SAC fails to allege facts sufficient to support an adverse employment action.

In order for Plaintiffs to make a prima facie case for retaliation, they must show they engaged in a protected activity, their employer subjected them to an adverse employment action, and there was a causal link between the two. (Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1546.) Regarding the first element, "[a]n employee engages in protected activity when [he or] she discloses to a governmental agency `"reasonably based suspicions' of illegal activity.' [Citation.]" (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) Here, Plaintiffs informed their immediate supervisors of the illegal activity they had witnessed while working. Jensen reported that he believed Chief Segawa had unlawfully arrested and obtained a confession from Tomorrow Horton. According to Plaintiffs, these allegations suggest a violation of Penal Code sections 236 and 237. Gonzales reported Chief Segawa's conduct in the arrest of an alleged illegal ice cream vendor and confiscation of the ice cream, suggesting a violation of Penal Code sections 135 and 487. As for Kuhl, the SAC is silent on his reporting; however, he argues he should have been given leave to amend in light of the criminal charges filed against certain Defendants, his interaction with the district attorney's office, and his declaration stating he had spoken to his supervisor, Medina, about the chief's action prior to termination.

In response, the District argues Plaintiffs failed to report the alleged misconduct to the District trustees and attorneys before any adverse employment action. Basically, the District maintains that Plaintiffs needed to do more than report the conduct to Medina, their immediate supervisor. Under the facts of this case, we disagree. While Labor Code section 1102.5, subdivision (b) concerns employees who report unlawful acts to public agencies, the facts of this case suggest there was insufficient time for such reporting. Plaintiffs initially reported their concerns to Medina, their immediate supervisor. However, Plaintiffs were unaware that Medina was in partnership with Chief Segawa when it came to covering up alleged unlawful acts. Before Plaintiffs could make their reports to the necessary public agencies,1 they were terminated or forced to resign. The only exception was Jensen, who was able to make a report about the chief's actions regarding Tomorrow Horton prior to his adverse employment action. We find the holding in Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236 (Gardenhire) helpful.

In that case, the plaintiff began working for the housing authority in October 1990. (Gardenhire, supra, 85 Cal.App.4th at p. 237.) She was continuously promoted each year until 1996. (Id. at pp. 238.) In September 1996, she reported to her direct supervisor her concerns about a colleague's wrongdoing. (Ibid.) From that point on, the plaintiff was demoted and criticized, and in March 1997, she was told by her supervisor that she would start documentation to have the plaintiff terminated. (Id. at p. 239.) In May 1997 the plaintiff reported the wrongdoing to the housing authority's commissioners. (Id. at p. 240.) In December the plaintiff filed suit. (Ibid.) The adverse employment actions taken against the plaintiff occurred after she initially reported to her immediate supervisor the unlawful activity. The same can be said of Plaintiffs in this case. Shortly after reporting unlawful activity to their immediate supervisor, Medina, Plaintiffs suffered adverse employment actions. The only difference between the facts in Gardenhire and this case is the timing. The plaintiff in Gardenhire endured adverse employment actions from September 1996 through 1997, allowing her time to further report the unlawful activities to those above her immediate supervisor. Here, the adverse employment action was immediate. The only plaintiff with time to report his concerns was Jensen.

Moreover, we note the Gardenhire court rejected the argument that the plaintiff, a housing agency employee, had to report her concerns to another public agency: "[Labor Code] Section 1102.5 clearly covers employees who report their concerns to public agencies. [Plaintiff] reported directly to the commissioners of a public agency which happened to also be her employer. The commissioners of the agency, themselves public employees and charged with the protection of the public interest, commenced an investigation. [Plaintiff] could not have expected there was any further need to report her suspicions to higher authorities." (Gardenhire, supra, 85 Cal.App.4th at p. 242; See also Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1123-1124.)

The second element, that the employer subjected the employees to an adverse employment action, was shown by the fact that Plaintiffs were no longer employed by the District.

The third element, the causal link, requires a showing that the employer was aware that plaintiff was engaged in the protected activity. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70.) According to the SAC, immediately after Plaintiffs reported their concerns of unlawful conduct to their immediate supervisor, they were treated differently, and in some cases, terminated or forced to resign. The District, through its agent, Chief Segawa, claimed there were complaints about Plaintiffs that necessitated adverse employment action. However, there was no notice or opportunity for a hearing, nor were Plaintiffs given the opportunity to refute the charges or clear their names. From the facts alleged in the SAC, Chief Segawa knew that Plaintiffs' reports would disclose the corruption in his office. In order to shield himself and Medina from being exposed, he and/or Medina trumped up charges against Plaintiffs to support the decision to terminate their employment with the District.

Given the above, the trial court erred in granting demurrer without leave to amend to this cause of action. Rather, it appears Plaintiffs could amend the SAC to state a cause of action for whistleblower retaliation. (See Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967 ["it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect . . . can be cured by amendment"].) In reaching this decision, we must stress that we are not deciding the merits of Plaintiffs' claim of whistleblower retaliation. This case has come to us at the demurrer stage, prior to the resolution of factual disputes.

C. Retaliatory Termination for Reporting of Sexual Harassment—FEHA

"The FEHA expressly prohibits sexual harassment in the workplace. It is an unlawful employment practice `[f]or an employer . . . because of . . . sex . . . to harass an employee . . . .' [Citation.] The FEHA also provides that `[sexual] [h]arassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.' [Citation.] For the purposes of the relevant provisions of the FEHA, `"harassment" because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.' [Citation.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460-461, fn. omitted, (Miller).)

The FEHA protects employees against retaliation for opposing conduct made unlawful by the act. (Gov. Code, § 12940, subd. (h).) The same three elements identified in establishing a whistleblower claim apply to a FEHA claim. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) Sexual harassment includes the creation of a hostile work environment. "Such a hostile environment may be created even if the plaintiff never is subjected to sexual advances. [Citation.]" (Miller, supra, 36 Cal.4th at pp. 461-462.)

Our state's highest court has agreed with the United States Supreme Court that, "to prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. [Citations.] The working environment must be evaluated in light of the totality of the circumstances: `[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' [Citation.]" (Miller, supra, 36 Cal.4th at p. 462, italics added.)

Here, Jensen and Navarreta contend the trial court erred in denying their request to amend their FEHA claims. They argue that Medina's sexual liaison with a coworker interfered with their and Medina's work performance because Jensen was not being trained while Medina was conducting his affair while on duty. Also, Jensen was subjected to viewing "pictures of Qualls in suggestive and sexual positions. Some of the images depicted Qualls in the shower, Qualls on the floor near the shower, Qualls on her bed and standing up. In the various images Qualls was wearing anything from a towel to nothing at all." Jensen and Navarreta reported Medina's conduct to Chief Segawa and requested that Navarreta be substituted as Jensen's training officer. When Medina criticized Jensen's ability to perform on the job, Jensen pointed out he was not being trained because Medina was too busy engaging in a sexual liaison with Qualls. In reply, Medina threatened to have both Jensen and Navarreta fired.

The District contends Plaintiffs abandoned this claim and are barred from attempting to reassert it. We disagree. What the District claims to be abandonment was merely Plaintiffs' concession that the cause of action needed to be amended. Plaintiffs stated their claims for "FEHA Violations are Conceded to refine the pleadings." We interpret that to mean Plaintiffs agreed the pleadings were insufficient and needed to be amended.

The District next argues Jensen and Navarreta are male police officers complaining about Medina's extramarital affair with a female employee of the District. It points out that Plaintiffs do not allege the female received preferential treatment or favoritism; nor do Plaintiffs claim they were denied promotions or that they were fired because they did not engage in sexual favors with Medina. While this is true, the District fails to recognize that our state Supreme Court has identified an environment as being "hostile" or "abusive" when "`it unreasonably interferes with an employee's work performance.'" (Miller, supra, 36 Cal.4th at p. 462, italics added.) According to the facts alleged in the SAC, such was the case.

Given the above, and because Plaintiffs conceded the need to amend at the lower level, the trial court erred in not granting such leave. Again, we note that at the demurrer stage, Plaintiffs are not required to prove their claims. Rather, they are merely required to allege facts sufficient to constitute their claims against the District.

D. Violation of Peace Officers Bill of Rights (Sixth Cause of Action)

"The [Bill of Rights] Act sets forth a list of basic rights and protections which must be afforded all peace officers [citation] by the public entities which employ them. [Citations.] `It is a catalogue of the minimum rights [citation] the Legislature deems necessary to secure stable employer-employee relations [citation].' [Citation.]" (Gales v. Superior Court (1996) 47 Cal.App.4th 1596, 1600, fn. omitted.) While it is unclear whether Plaintiffs were probationary officers, we note the Bill of Rights Act applies to probationary peace officers. (Barnes v. Personnel Department (1978) 87 Cal.App.3d 502, 504.) It permits the probationary peace officer the chance to establish a formal record of the circumstances surrounding his or her termination. (Id. at p. 506.) Also, Government Code section 3304 provides a peace officer "a chance to . . . try to convince his employer to reverse its decision . . . ." (Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1359.)

Here, the SAC alleges an action under Government Code section 3309.5,2 which provides a private right of action for police officers who claim a violation of their rights under the Bill of Rights Act. As previously noted, Plaintiffs were initially accused of misconduct, which allegedly supported their dismissals.3 However, they were never afforded their procedural due process rights guaranteed under the Bill of Rights Act. Thus, it appears a claim for violation of the Bill of Rights Act is warranted.

Notwithstanding the above, the District contends this claim is barred by the Tort Claims Act, which "requires the timely filing of a written claim presented to a public entity and the rejection of the claim before a suit for money or damages may be brought against the public entity." (Gov. Code, § 945.4.) Acknowledging that Plaintiffs had filed claims for damages, the District faults Plaintiffs for not asserting "how they believe their rights under the [Bill of Rights Act] were violated other than the cursory allegation that their unspecified `interrogation was not recorded' and that they were `not afforded an opportunity to participate in the investigative review.'"4 Turning to the record before this court, it is unclear whether or not Plaintiffs are seeking monetary damages. While the SAC notes Plaintiffs "have suffered the injuries and damages alleged herein," it also states: "The Court is empowered to and should exercise its equitable jurisdiction to issue a permanent injunction against [the District] and the individual Defendants enjoining the illegal activities." To the extent Plaintiffs are seeking nonmonetary damages, they did not need to file claims with the District. (Gales v. Superior Court, supra, 47 Cal.App.4th at pp. 1601-1603.) However, the SAC also asserts that "Plaintiffs have suffered the injuries and damages alleged herein."

Because it is unclear whether Plaintiffs are alleging monetary damages, in addition to injunctive relief, it appears this cause of action needs to be amended for clarification. Although the District failed to assert Plaintiffs' noncompliance with the Tort Claims Act at the lower level, they have raised it on appeal. Given the unclear pleadings supporting this cause of action, Plaintiffs should be allowed leave to amend to cure the defects, if any, in their pleadings.

E. Breach of Employer Policies (Seventh Cause of Action)

Plaintiffs alleged a claim for breach of the District's policies. On appeal, Kuhl admits this claim is "not a model of clarity." In support of this claim, he references certain paragraphs in the SAC that discuss the Bill of Rights Act and the District's written policies. However, there is no copy of the District's policies attached to the SAC. The District argues this cause of action is "essentially a cause of action for wrongful termination in violation of public policy in disguise and cannot be maintained against [the District]." We agree with the District.

"The Government Claims Act [citations] establishes the limits of common law liability for public entities, stating: `Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.' [Citation.] The Legislative Committee Comment to [Government Code] section 815 states: `This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. . . .' [Citation.] Moreover, our own decisions confirm that section 815 abolishes common law tort liability for public entities. [Citations.]" (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899 (Miklosy).)

As the District points out, Plaintiffs' claim for wrongful termination in violation of public policy, artfully labeled breach of employer policies, is a common law judicially-created tort. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 176-178 ["when an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions"]; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095 [a Tameny claim must be "carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions"], overruled on other grounds by Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80, fn. 6 ["To the extent one can read [Gantt], at page 1095, to conclude that important administrative regulations implementing fundamental public policies as reflected in their enabling statutes are not `tethered to' legislative enactments, we overrule it."].) Government Code section 815 bars Tameny claims against public entities. (Miklosy, supra, 44 Cal.4th at p. 900.)

For the above reasons, the trial court correctly sustained the demurrer without leave to amend to this cause of action.

F. Defamation; Slander Per Se (Ninth Cause of Action)

"Slander is a species of defamation. `Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. [Citation.] . . . [Citations.] A false and unprivileged oral communication attributing to a person specific misdeeds or certain unfavorable characteristics or qualities, or uttering certain other derogatory statements regarding a person, constitutes slander.' [Citation.] In addition to false statements that cause actual damage [citation], the Legislature has specified that slander includes a false statement that: `1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [¶] 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [or] [¶] 4. Imputes to him impotence or a want of chastity. . . .' [Citation.]" (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 867, fn. omitted.)

Kuhl concedes the allegations in the SAC were not a model pleading as to the defamation/slander per se cause of action; however, he contends the basic allegations were present. The SAC alleges Myers and Medina communicated false and defamatory statements regarding Plaintiffs' trade or profession, causing "loss of reputation, loss of income, shame, ridicule, and mortification." According to the SAC, Medina said that Myers was accusing Navarreta and Jensen of sexually harassing him and using racial slurs and epithets. Later on, Myers informed Chief Segawa that he (Myers) had made up the allegations against Navarreta and Jensen. Kuhl argues that, if this court concludes this cause of action was "too sparsely pleaded, it is likely that the defects can be remedied by a more specific pleading setting forth the content of the communications that are alleged to be defamatory in nature," and thus, he should be granted leave to amend. No other Plaintiff challenges the trial court's decision to sustain the demurrer without leave to amend to this cause of action.

Medina points out that Plaintiffs failed to identify any statements he made and that would qualify as slander. We agree. As for Myers, the above statements attributed to Myers in the SAC do not pertain to Kuhl, nor has Kuhl provided this court with any additional facts that could be pled to revive this cause of action. Accordingly, we conclude the trial court correctly sustained the demurrer without leave to amend to this cause of action.

G. Fraudulent Inducement of Employment

The SAC alleges that, while Jensen was working for AT&T and Verizon, Chief Segawa recruited him to work for the District and offered a starting pay of $27 per hour. Jensen accepted the offer and began working for the District; however, he was paid $21 per hour. On appeal, Jensen contends he should be allowed to amend the SAC to assert a claim for fraudulent inducement of employment (promissory fraud).

In reply, the District asserts this claim is barred by Government Code sections 818.8 and 822.2 and the Tort Claims Act. Government Code section 822.2 provides: "A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice." "`"[T]he immunity afforded by Government Code section 822.2 applies unless, in addition to the essentials of common law deceit, a public employee is motivated by corruption or actual malice, i.e., a conscious intent to deceive, vex, annoy or harm the injured party." [Citations.]' [Citation.]" (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 649.) Conclusory allegations of corruption or actual malice are insufficient to bring the action within the exception. Rather, the plaintiff must "allege facts showing that the fraud was motivated by corruption or actual malice. [Citation.]" (Ibid.)

In order to fit in the exception, Jensen claims that "it is evident from the allegations of the SAC that Segawa was running the department for his personal gain and benefit, and was motivated to recruit officers who, if they did not participate in his misdeeds, could at least be cowed into silence by threats of firing, loss of standing in the department, denial of raises, and other tactics designed to quell dissent." These allegations allege in a conclusory manner that the chief's representations regarding Jensen's hourly wage were done for corrupt purposes, albeit, not necessarily with the intent to cause injury to Jensen. However, conclusory allegations are insufficient to survive demurrer. (Curcini v. County of Alameda, supra, 164 Cal.App.4th at p. 650; Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 42.)

Having found Government Code section 822.2 applicable, we need not consider the remaining arguments raised by Defendants. Accordingly, Jensen is unable to state a claim for fraudulent inducement of employment.

IV. DISPOSITION

The judgment is reversed and the matter is remanded to the trial court. The order sustaining the demurrer without leave to amend is affirmed with respect to the claims for breach of written employer policies (against District) and defamation/slander per se (Kuhl against Medina and Myers), and reversed with respect to the claims for whistleblower retaliation (against District), retaliation in violation of FEHA (against District), and violation of the Bill of Rights Act (against District). As for Jensen's claim for fraudulent inducement of employment (against District and Chief Segawa), we conclude Jensen should not be allowed leave to assert this cause of action. The trial court is directed to enter a new order sustaining the demurrer with leave to amend, only with respect to the claims for whistleblower retaliation (against District), retaliation in violation of FEHA (against District), and violation of the Bill of Rights Act (against District). All parties are to bear their own costs on appeal.

We concur:

MILLER, J.

CODRINGTON, J.

FootNotes


1. On May 5, 2010, Kuhl requested this court take judicial notice of the criminal charges filed against Chief Segawa. On May 18, 2010, Chief Segawa (joined by the remaining Defendants on May 20, 2010) opposed the request. On May 27, 2010, we reserved ruling for consideration with the appeal. We deny the request. Likewise, we deny Plaintiffs' request that we take judicial notice of the guilty pleas entered by Chief Segawa on June 23, 2010. We are able to resolve the issue raised on appeal without considering the documents of which we have been requested to take judicial notice.
2. In relevant part, Government Code section 3309.5 provides: "(a) It shall be unlawful for any public safety department to deny or refuse to any public safety officer the rights and protections guaranteed to him or her by this chapter. [¶] . . . [¶] (c) The superior court shall have initial jurisdiction over any proceeding brought by any public safety officer against any public safety department for alleged violations of this chapter. [¶] (d)(1) In any case where the superior court finds that a public safety department has violated any of the provisions of this chapter, the court shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer. [¶] . . . [¶] (e) In addition to the extraordinary relief afforded by this chapter, upon a finding by a superior court that a public safety department, its employees, agents, or assigns, with respect to acts taken within the scope of employment, maliciously violated any provision of this chapter with the intent to injure the public safety officer, the public safety department shall, for each and every violation, be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) to be awarded to the public safety officer whose right or protection was denied. . . . If the court so finds, and there is sufficient evidence to establish actual damages suffered by the officer whose right or protection was denied, the public safety department shall also be liable for the amount of the actual damages. . . ."
3. We recognize that some of Plaintiffs resigned; however, the facts suggest their resignations were forced.
4. District requests that we take judicial notice of the claims for damages filed on behalf of Navarreta, Gonzales, and Kuhl. On July 27, 2010, Kuhl (joined by the remaining Plaintiffs on August 9, 2010) opposed the request. On August 13, 2010, we reserved ruling for consideration with the appeal. We deny the request.

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