Not to be published in the official reports


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.


We concur:

EPSTEIN, P. J.



SUZUKAWA, J.


1 There were six other individuals named in the complaint; all were dismissed by appellant prior to the hearing on the demurrer to the operative fourth amended complaint.

2 A school employee’s claim for retaliation for reporting criminal activity potentially implicates more than one statutory scheme. Labor Code section 1102.5, subdivision (b), which applies to any employer, provides that an employer may not “retaliate against 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.” In addition, Education Code section 44110 et seq., the “Reporting by School Employees of Improper Governmental Activities Act,” specifically protects public school employees and states that “any person” will be liable for an action for damages if that person “intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a public school employee or applicant for employment with a public school employer .for having made a protected disclosure.” (Ed. Code, § 44114, subd. (c); see id., § 44112, subd. (d) [definition of “person” for this act includes not only “any individual,” but also “any state or local government, or any agency or instrumentality of any of the foregoing”].) Education Code section 44113 further provides that “[a]n employee may not directly or indirectly use or attempt to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the right of that person to disclose to an official agent matters within the scope of this article.” An employee who violates those provisions “may be liable in an action for civil damages brought against the employee by the offended party.” In the fourth amended complaint, the retaliation was said to be in violation of both Education Code section 44110 et seq. and Labor Code section 1102.5.

3 Unlike the retaliation claim, which was asserted against all respondents, the non-whistleblower claims were asserted against the individual respondents, except the claim for abuse of process, which was asserted against LAUSD and Pitsker only, and the slander/defamation claim, which did not name Hewlett-Bloch.

4 According to the complaint, “[t]he [OIG] [wa]s only authorized to investigate ‘white collar crime’ and whistleblower allegations -- not allegations of pedophilia.”

5 The abuse of process was said to stem from the subpoena.

6 Government Code section 821.6 provides: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Section 820.2 provides that a public employee is not liable for injury resulting from an act or omission, where the act or omission was the result of the exercise of discretion, “[e]xcept as otherwise provided by statute.”

7 Government Code section 815.2 provides that a governmental entity is not liable for injury resulting from an act or omission of its employee if the employee is immune from liability.

8 Because the jury found that appellant had not made a protected disclosure when he reported the locker room incident, we limit our discussion to the facts relevant to that finding.

9 Appellant’s written report stated that at the time Hewlett-Bloch walked into the locker room, “the door leading to the locker room was open and you could hear the commotion of the boys’ football team getting dressed for the upcoming football game”; that immediately after Hewlett-Bloch walked through the locker room, appellant “personally went in and saw the football team in various stages of dress and undress as [he] had anticipated”; and that he reported what he had seen to Hodge and Medrano. In his testimony at trial, appellant did not recall saying anything to Medrano. Hodge did not recall appellant getting up and checking the locker room afterward. Medrano was not called to testify.

10 Hodge did not recall appellant helping him clear the locker room.

11 At trial, appellant acknowledged making complaints of sexual orientation discrimination, but testified he was not gay.

12 Prior to trial, respondents had moved in limine to exclude all evidence pertaining to the actions of OIG and its investigators. (As is discussed further below, the court had already ruled such evidence confidential and inadmissible in connection with the summary judgment motions filed by respondents.) The court ruled that the investigative file and communications between Moriel and Pitsker were confidential, and that confidentiality was not waived by placing Moriel’s draft reports in his personnel file. The motion in limine did not specifically address the letter to Hodge, although respondents’ trial brief contended that it was part of the investigative file because it communicated the result of the investigation and also contended it contained inadmissible hearsay and opinion. In response to an objection raised during appellant’s counsel’s opening statement, the court further ruled that Delling’s call to OIG’s hotline requesting that an investigation be initiated was part of the confidential investigative file.

13 OIG’s 2007 and 2008 Annual Reports included summaries of the investigations of appellant’s and Hodge’s whistleblower complaints. The 2007 Annual Report stated that OIG conducted an investigation into allegations that “a high school principal” had retaliated against “a teacher” for reporting improper governmental activity and that the investigation did not corroborate the allegations. It further stated that “the [a]ssistant [p]rincipal” did “enter the boys’ locker room,” but “did not violate any District policy or procedure.” The 2008 Annual Report, stated: “The OIG conducted an investigation into allegations that a Principal and Assistant Principal attempted to interfere, intimidate and retaliate against a Teacher at a high school for providing or attempting to provide information of improper government activity. [¶] Information provided by the whistleblower was deemed unreliable, and the subsequent investigation did not substantiate the allegations.” The trial court ruled that the Annual Reports themselves were not confidential.

14 Because a different Office of the Inspector General was involved in White, the governing provisions were found in Penal Code section 6126.3, which provides that certain documents shall not be released to the public and shall not be subject to discovery, and Penal Code section 6126.5 subdivision (d), which states that a record of an interview is “‘deemed confidential for use by the Inspector General and the Secretary of the Youth and Adult Correctional Agency only.’” (See White v. Superior Court, supra, 102 Cal.App.4th at Supp. 5.)

15 The jury instructions defined “‘protected disclosure’” to mean “‘a good faith communication’ that discloses or demonstrates an intention to disclose information that may evidence either of the following: [¶] (1) An improper governmental activity. [¶] (2) Any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.” “Improper governmental activity” was defined to mean “an activity by an employee that is undertaken in the performance of the employees’ official duties and meets either of the following descriptions: [¶] (1) The activity violates a state or federal law or regulation . . . . [¶] (2) The activity is economically wasteful or involves gross misconduct, incompetency, or inefficiency.” With respect to the law or regulation that might have been violated by Hewlett-Bloch’s conduct, the jury was instructed that an act “which is offensive to the senses so as to interfere with the comfortable enjoyment of life or property” could constitute a nuisance or an invasion of the male students’ right to privacy.

16 It is not entirely clear from the record, but it appears that question two originally asked: “Did Mike Bujko’s Whistleblower Complaint disclose that Angela Hewlett-Bloch engaged in an improper governmental activity, as that term is defined in the jury instructions?”

17 The jurors’ response to the clarified question was not surprising in view of the evidence. Appellant claimed to have seen football players getting ready for the game when he assisted Hodge in clearing the locker room of other students prior to Hewlett-Bloch’s walk through and to have looked into the locker room and observed players dressing and undressing after she left. However, Hodge did not recall appellant helping him clear the locker room prior to Hewlett-Bloch’s appearance or getting up and looking into the locker room afterward. Multiple witnesses testified that there were no boys in the locker room at the time, and that all the football players were dressed and awaiting Delling and Hewlett-Bloch in the meeting room. The evidence also established that appellant had a history of animosity toward Delling and Hewlett-Bloch, and that he had made multiple claims of retaliation and discrimination in the past.

18 The two jurors, Derek Martin and “Mr. Arias,” had revealed their employment and, in Martin’s case, his acquaintance with some of the witnesses, during voir dire.

19 There is no indication in the record that appellant sought to remove the two jurors employed by LAUSD or objected to their presence on the jury during voir dire.

20 On appeal, appellant contends only that the court erred in sustaining the demurrers of LAUSD and Pitsker. Appellant identifies no potentially actionable conduct by LAUSD and Pitsker other than that related to investigation of the hotline charges. Any argument that the court erred in sustaining the demurrers of the other respondents to the non-whistleblower claims or that any other conduct supported those claims is therefore forfeited.

21 Government Code section 821.6 immunity does not apply to whistleblower claims brought under Education Code section 44110 et seq. (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1423-1424; see also Conn v. Western Placer Unified School Dist. (2010) 186 Cal.App.4th 1163, 1180 [discretionary act immunity under Government Code section 820.2 does not apply to whistleblower claims brought under Education Code section 44110 et seq.].) The trial court overruled the demurrers to appellant’s claim for retaliation as a whistleblower.

22 The trial court took judicial notice of the policy.

23 All respondents moved for summary judgment. As Pitsker’s summary judgment motion was the only successful one and is the only one at issue on appeal, we limit our discussion to the specifics of his motion. The grant of summary judgment to Pitsker had the effect of precluding appellant from pursuing at trial any claim against LAUSD based on his conduct in connection with the investigation.

24 In separate declarations, Hewlett-Bloch and Delling stated that Hewlett-Bloch had walked through the boys’ locker room prior to a football game on the way to a meeting. Hewlett-Bloch explained that her foot was injured and in a cast or walking boot, and that the locker room was a shortcut to the meeting room. Both stated that prior to her entry, Delling and others checked the locker room to ensure that no boys were changing clothes.

25 In a July 2007 letter, LAUSD informed appellant that OIG “recently concluded its investigation into [appellant’s whistleblower complaint] and found that [he] did not qualify for Whistleblower protection under the District’s Whistleblower Protection Policy” because “[t]he OIG did not substantiate [his] complaint that [Delling and/or Hewlett-Bloch] harassed, threatened, intimidated or retaliated against [him] for reporting alleged improper government activity.”

26 Moriel attached a copy of his draft report to his declaration. Moriel found that Hewlett-Bloch had not violated any District policy or procedure. Nonetheless, he concluded that appellant had suffered retaliatory acts for reporting that she had, including the negative evaluation, Hewlett-Bloch’s refusal to accept him as department chair until she had been provided certain documentation, the disciplinary conference based on the students’ alleged misbehavior, and Delling’s call to the OIG hotline.

Pitsker’s declaration discussed OIG’s confidentiality policy at length. He stated: “Pursuant to the LAUSD Whistleblower Protection Policy, Education Code § 44110 et seq., and Education Code § 35401 et seq., all reports and other information obtained during the course of an investigation into alleged improper governmental activity are kept confidential by the OIG. During the course of an OIG investigation into a so[-]called ‘Whistleblower Complaint,’ all witnesses are informed of the confidential nature of the investigation and that personal information will be protected from disclosure pursuant to LAUSD policy and the above[-]referenced laws.” (Italics omitted.) He further stated that documents gathered or generated during an OIG investigation were not the property of individual employees, and that as an employee, he was “not authorized to disclose or release the contents of any such documents . . . .”



In response to respondents’ objection that any and all matters related to the OIG investigation were confidential, the court ruled that the draft report and statements in Moriel’s declaration concerning the specifics of his investigation were confidential and inadmissible under Education Code section 35401, subdivision (c).

27 In the remaining portion of the opening brief devoted to his appeal from the grant of Pitsker’s motion for summary judgment, appellant argues that Pitsker was not immune from liability under Education Code section 44110 et seq., as Pitsker and the other respondents had argued in support of their motions. The court rejected the contention that immunity precluded prosecution of appellant’s whistleblower retaliation claim when it overruled the demurrers to that claim. Nothing in its summary judgment order suggests the court granted Pitsker’s motion on statutory immunity grounds.

28 Although Moriel’s draft report was not admitted into evidence, we note that it indicated Moriel, too, looked into the pedophilia allegations to determine whether they were made for retaliatory purposes.




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