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1 DENNIS J. HERRERA, State Bar #139669
City Attorney
2 KATHARINE HOBIN PORTER, State Bar #173180 ELECTRONICALLY
Chief Labor Attorney F I L E D
3 LISA BERKOWITZ, State Bar #167657 Superior Court of California,
County of San Francisco
Deputy City Attorney
4 Fox Plaza 01/10/2020
1390 Market Street, 5th Floor Clerk of the Court
BY: EDNALEEN ALEGRE
5 San Francisco, California 94102-5408 Deputy Clerk
Telephone: (415) 554-3825
6 Facsimile: (415) 554-4248
E-Mail: lisa.berkowitz@sfcityatty.org
7
8 Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO
12 UNLIMITED JURISDICTION
13 BRADLEY NOVAK, Case No. CGC-19-573659
14 Plaintiff, DEFENDANT CITY AND COUNTY OF
SAN FRANCISCO’S REPLY TO PLAINTIFF’S
15 vs. OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE,
16 THE CITY AND COUNTY OF SUMMARY ADJUDICATION
SAN FRANCISCO, a public entity,
17 SAN FRANCISCO COUNTY Reservation No. 009300116-06
DEPARTMENT OF AGING AND ADULT
18 SERVICES, a public entity, and DOES 1-20, Hearing Date: January 16, 2020
inclusive, Hearing Judge: Hon. Ethan P. Schulman
19 Time: 9:30 a.m.
Defendants. Place: Department 302
20
Date Action Filed: February 8, 2019
21 Trial Date: February 18, 2020
22 Accompanying Document: Defendant’s Reply to
Plaintiff’s Further Statement of Undisputed Facts In
23 Support of Opposition to Motion for Summary
Judgment
24
25
26
27
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1 INTRODUCTION
2 It is clear from Plaintiff Novak’s Opposition brief that the relevant material facts of this case
3 are simple and undisputed. The City, through Public Conservator Manager Sandra Teixeira, had
4 instructed the City’s expert psychiatrist witness – Novak - to limit his testimony to the issue of grave
5 disability when testifying in certain conservatorship hearings. However, Novak believed that he had
6 some obligation under statute and based on his professional ethical obligations to testify to subject
7 matter that was outside of this designated testimony. This dispute between the City and Novak began
8 to manifest in early 2018 and came to a head during conservatee Patrick McNulty’s Lanterman-Petris
9 Short (“LPS”) hearing in August of 2018. It is undisputed that McNulty’s two treating physicians had
10 opined that McNulty was gravely disabled under the applicable law. However, after interviewing
11 McNulty during the hearing, Novak, who was retained by the City to testify as to whether McNulty
12 was gravely disabled, opined that McNulty was not gravely disabled. It is undisputed that he informed
13 Sandra Teixeira and the City’s Assistant District Attorney Leslie Cogan, who was handling the case
14 for the City, of this opinion in a hallway outside the courtroom. The content of that brief conversation
15 is also undisputed. The women questioned Novak on two points regarding his opinion, obviously
16 frustrated that his opinion differed from McNulty’s treating physicians’ opinion on this issue. It is also
17 undisputed that Novak’s opinion was not going to further the District Attorney’s case, and so she did
18 not call him as a witness. It is undisputed that no one from the City asked Novak to testify and lie on
19 the stand at any point in time. It is undisputed that Novak took a seat on the bench outside the
20 courtroom and later left without testifying.
21 It is also undisputed that the issues that Teixeira had with Novak refusing to limit his testimony
22 motivated her to look at how and why the Department was using Novak in the first place. She
23 discovered that it was much more cost effective for the Department to request that the conservatee’s
24 treating physicians testify. It would also eliminate the appearance of bias that had occurred when
25 Novak consistently testified as the City’s expert witness. Accordingly, the City released Novak from
26 his employment with the City.
27
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1 Based on these undisputed facts, Novak contends that he has set forth a prima facie Labor
2 Code § 1102.5 retaliation claim for whistleblowing activity. Novak is wrong. His argument falters at
3 the first prong of the analysis: He cannot show that he engaged in a protected activity under the
4 statute. Novak primarily bases his argument that he engaged in protected activity on analogizing his
5 actions to those of the Plaintiff in Ross v. County of Riverside (2019) 36 Cal.App.5th 580. However,
6 Novak’s role and actions here, as an expert witness for the City on the issue of grave disability, were
7 not the same as the Plaintiff in Ross – who was an Assistant District Attorney who had learned of
8 exculpatory evidence against a defendant and based on that evidence had recommended to his
9 superiors dismissing the case, and was then allegedly constructively discharged after that time. Nor
10 can Novak show that he was released because the City instructed him to participate in illegal activity,
11 as argued in Novak’s Opposition Brief. It is undisputed that no City employee ever asked Novak to lie
12 on the witness stand. Finally, the City presented legitimate business reasons as to why it released
13 Novak from employment. Novak failed to prove that these reasons were actually pretext for
14 whistleblowing retaliation.
15 The City is entitled to summary judgment on Novak’s defamation claim for the reasons set
16 forth in the City’s motion. Novak does not offer any persuasive authorities or argument in his
17 Opposition Brief sufficient to defeat the City’s arguments on this claim.
18 LEGAL ARGUMENT
19 I. NOVAK CANNOT ESTABLISH HIS LABOR CODE SECTION 1102.5
WHISTLEBLOWER RETALIATION CLAIM AS A MATTER OF LAW
20 California Labor Code Section 1102.5(b) prohibits an employer from retaliating “against an
21 employee for disclosing information… to a government or law enforcement agency, …if the employee
22 has reasonable cause to believe that the information discloses a violation of state or federal statute, or a
23 violation of or noncompliance with a local, state or federal rule or regulation.” Subsection (c)
24 provides that an employer … “shall not retaliate against an employee for refusing to participate in an
25 activity that would result in a violation of state or federal statute, or a violation or noncompliance with
26 a local, state or federal rule or regulation.”
27
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1 As set forth in the City’s moving papers, California courts apply a shifting burdens model of
2 proof for Labor Code Section 1102.5 retaliation claims. Akers v. County of San Diego (2002) 95
3 Cal.App.4th 1441, 1453; Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378,
4 1383-1384. The plaintiff bears the initial burden of establishing a prima facie case of retaliation by
5 showing that: (a) he engaged in protected activity; (b) the employer subjected him to an adverse
6 employment action; and (c) there is a causal link between the two. Patten, supra, at 1383-4. If the
7 plaintiff satisfies these prongs, the burden shifts to the employer to articulate a nondiscriminatory
8 reason for its actions. Once the employer offers that reason, the burden shifts back to the plaintiff to
9 prove that discrimination was the real reason for the adverse action. Hersant v. Department of Social
10 Services (1997) 57 Cal.App.4th 997, 1003.
11 Novak’s retaliation claim fails at the first step of this analysis. He did not disclose information
12 to a government agency where he had reasonable cause to believe the information disclosed a violation
13 of state or federal statute, or a violation of or noncompliance with a local, state or federal rule or
14 regulation within the meaning of the statute. See Labor Code § 1102.5(b). He also fails to show that
15 he refused to participate in an activity that would result in a violation of state or federal statute. See
16 Labor Code § 1102.5(c).
17 A. NOVAK DID NOT DISCLOSE INFORMATION TO THE CITY THAT HE
REASONABLY BELIEVED TO VIOLATE STATE OR FEDERAL LAW
18 Novak first argues that his internal complaints to Teixeira regarding his testimony in
19 conservatorship cases fall within the scope of Section 1102.5(b). (Opposition Brief at 9:9-21.) Novak
20 relies on Ross, supra, to argue that in disputing Teixeira’s instruction to him to limit his testimony to
21 omit discussing the quality of medical records and his opinion as to the level of care facility, Teixeria
22 was asking Novak to engage in conduct that he believed violated the LPS Act, a conserved
23 individual’s civil and constitutional due process rights and his own ethical standards of care as a
24 psychiatrist. Novak’s reliance on Ross for this point is incorrect.
25 In Ross, the Plaintiff, an Assistant District Attorney, disclosed to his superiors evidence that
26 exculpated a Defendant from a crime – evidence that showed the Defendant’s confession was coerced
27 and DNA evidence that exculpated him, among other things. Ross, supra, at 592. The Court in that
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1 case found a triable issue of fact on Ross’ Labor Code § 1102.5(b) claim because it found that Ross
2 had a reasonable belief that continued prosecution in light of this exculpatory evidence violated his
3 prosecutorial ethical obligations under Business and Professions Code § 6808 and his prosecutorial
4 duties under Government Code § 26501. Id. (The Court did not reach the issue of Ross’ Labor Code
5 § 1102.5(c) claim. Id. at 593.)
6 Contrary to the Plaintiff’s actions in Ross, it was not Novak’s job to opine on issues outside of
7 his designated expert witness testimony subject matter. It was Ross’ job as an Assistant District
8 Attorney to prosecute cases fairly. Novak was not an Assistant District Attorney tasked with
9 prosecuting a case, as in Ross. He was an expert witness retained to testify on a discrete issue in a
10 conservatorship hearing.
11 Additionally, Novak did not inform Teixeira of “information” that “discloses a violation of
12 state or federal law”. Labor Code § 1102.5(b). Novak incorrectly relies first on California Welfare
13 and Institutions Code § 5150 as the statute on which he bases his Section 1102.5(b) claim. That
14 statute addresses involuntary civil commitments and grave disability. Novak informing the City that
15 limiting his testimony to grave disability clearly does not violate this statute, nor is it clear why Novak
16 would reasonably believe this to be so.
17 Novak next incorrectly argues that Ms. Teixeira’s instructions constituted obstruction of justice
18 under 18 U.S.C. § 1505. This argument likewise fails. Novak was not withholding or concealing
19 evidence from the Court. It is not an expert witness’ job to opine on matters outside of their
20 designated testimony and which they are not asked. In requesting that he limit his testimony, Teixeira
21 was not instructing Novak to “corruptly” obstruct a pending proceeding, and it would not be
22 “reasonable” under Labor Code § 1102.5(b) for Novak to think so. See 18 U.S.C. § 1505. It would
23 be a wildly speculative stretch to interpret these facts as compelling an obstruction of justice. See
24 Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-20 (speculations, suspicions,
25 opinions and conclusory allegations are inadmissible and cannot constitute evidence in support of
26 pretext or discriminatory or retaliatory animus.)
27
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1 In sum, Novak fails to establish a violation of Labor Code § 1102.5(b) because he cannot show
2 that he disclosed information to the City that he had reasonable cause to believe constituted a violation
3 of state or federal law.
4 B. NOVAK DID NOT REFUSE TO PARTICIPATE IN AN ACTIVITY THAT
WOULD RESULT IN A VIOLATION OF STATE OR FEDERAL LAW
5 Whether Novak can show that he refused to participate in an activity that would result in a
6 violation of state or federal law for purposes of Labor Code § 1102.5(c) is “quintessentially a legal
7 question.” Nejadian v. County of Los Angeles (October 31, 2019) 40 Cal.App.5th 703, 718. In order
8 for the Court to make that determination, Novak must “identify what specific activity he or she refused
9 to participate in and what specific statute, rule or regulation would be violated by that activity.” Id. at
10 719.
11 Novak argues first that Teixeira illegally requested that he withhold evidence about the
12 appropriate level of care of conservatee in violation of California Welfare & Institutions Code § 5358.
13 Again, it was not Novak’s job to opine on this issue. It is not illegal under that statute or any other
14 statute, for an expert witness to be instructed to limit his testimony to a designated subject matter.
15 Novak next argues that Teixeira and Cogan illegally pressured him to change his opinion that
16 McNulty was not gravely disabled. (Opposition Brief at p. 12.) This statement is contrary to the
17 undisputed facts. It is undisputed - from Plaintiff’s own deposition testimony - that Teixeira and
18 Cogan asked Novak two questions when he informed them of his opinion that McNulty was not
19 gravely disabled. (See City’s Undisputed Fact 31.) When Novak stuck to his opinion, it is undisputed
20 that neither woman attempted to convince Novak to change his mind. (Undisputed Fact 32.) There
21 was no “pressuring” involved. No City employee instructed Novak to perjure himself. The women
22 went back to the hearing and Novak sat on a bench outside the room. (Undisputed Fact 33.)
23 Accordingly, Novak fails to establish his Labor Code § 1102.5(c) claim. 1
24
1
25 Novak’s reliance on Ferretti v. Pfizer, Inc. (N.D. Cal. 2012) 855 F.Supp.2d 1017, 1025-6 is
not applicable here. In that case, the Court denied Defendants’ motion to dismiss the Complaint,
26 finding that the Plaintiff has sufficiently alleged that she engaged in protected activity when she
reported violations of federal regulations in the conducting of clinical drug trials to her superiors. That
27 decision was not a summary judgment decision, and the facts are so dissimilar to the facts at bench to
render it inapplicable here.
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C. THE CITY HAD LEGITIMATE NONRETALIATORY REASONS FOR
1 RELEASING NOVAK FROM EMPLOYMENT AND NOVAK CANNOT SHOW
PRETEXT FOR RETALIATION
2
As stated in the City’s moving papers, if Novak had established a prima facie claim, then the
3
burden shifts to the City to articulate a legitimate, non-retaliatory reason for its decisions. Once the
4
City makes that showing, Novak must offer substantial evidence that the City's stated reasons for the
5
adverse action are untrue or pretextual, or evidence that the City acted with a retaliatory animus, or a
6
combination of the two, such that a reasonable trier of fact could conclude that the City engaged in
7
retaliation. Hersant, supra, at 1003. Speculation does not constitute substantial evidence sufficient to
8
rebut the City’s legitimate, nondiscriminatory reasons. Horn v. Cushman & Wakefield Western, Inc.
9
(1999) 72 Cal.App.4th 798, 807-808.
10
In his Opposition Brief, Novak argues that the City’s proffered legitimate, non-retaliatory
11
reasons for releasing him were actually pretext for retaliation for whistleblowing activity. Novak
12
essentially argues 1) that because he had not been released prior to August of 2018 that his termination
13
must be based on his alleged protected activity and 2) his own self-serving opinion that treating
14
doctors do not provide better testimony that he himself can provide as a forensic psychiatrist.
15
As to Novak’s first argument, Teixeira testified that the problems she was having with Novak
16
not limiting his testimony to the subject matter requested motivated her to look at how and why the
17
Department was using Novak in the first place. She found that it was much more cost effective to use
18
treating physicians from the Department of Public Health instead of Novak. (See the City’s Response
19
to Plaintiff’s Undisputed Fact 46.) There is no evidence that anyone even looked at whether there was
20
a more effective way to present the Department’s case prior to that time.
21
As to Novak’s second argument, Novak’s opinion that a forensic psychiatrist is a better witness
22
for the Department on the issue of grave disability than a treating physician is just his opinion. This
23
opinion does not establish retaliatory pretext. An equally compelling argument can be made that the
24
patient’s treating doctor, who has knowledge of the patient’s health history, illnesses, etc., is the better
25
witness for the Department in regards to grave disability.
26
Accordingly, for the all of the preceding reasons, and the arguments set forth in the City’s
27
moving papers, the City is entitled to summary judgment on Novak’s retaliation claim.
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1 II. NOVAK’S DEFAMATION CLAIM FAILS AS A MATTER OF LAW BECAUSE THE
ALLEGED DEFAMATORY STATEMENTS ARE TRUE AND BECAUSE THE
2 STATEMENTS ARE BARRED BY CIVIL CODE SECTION 47(C)
3 Novak argues in his Opposition Brief that the alleged defamatory statements are true and that
4 the statements were not privileged under Civil Code Section 47(c.) Neither claim has merit under the
5 well established case authority cited in the City’s moving papers.
A. NOVAK’S DEFAMATION CLAIM FAILS AT THE OUTSET BECAUSE THE
6 ALLEGED DEFAMATORY STATEMENTS ARE NOT FALSE
7 “Truth is a complete defense to a defamation action regardless of the malice or ill will of the
8 publisher.” Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 541; Smith v. Maldonado
9 (1999) 72 Cal.App.4th 637, 646-647. To support a defamation claim, a publication must constitute a
10 false statement of fact. “[T]he dispositive question . . . is whether a reasonable fact finder could
11 conclude that the published statements imply a provably false assertion.” Jensen v. Hewlett-Packard
12 Co. (1993) 14 Cal.App.4th 958, 970 (quotations omitted).
13 Novak claims that the alleged defamatory statements were false because Teixeira stated on
14 August 10, 2018 that she had separated Novak on that date, and yet the notice of release letter sent to
15 Novak on August 10, 2018 stated that his release would be effective two weeks later – on August 24,
16 2018. (Opposition Brief at p. 18.) This is a distinction without a difference. It is undisputed that the
17 City intended to release Novak prior to him deciding to resign. (City’s Undisputed Fact 42.) It is a
18 true statement to state that Novak was notified on August 10, 2018 that he was to be released from
19 City employment as of two weeks later.
20 B. THE MEMORANDUM ARE PRIVILEGED UNDER CIVIL CODE § 47(c)
21 Novak's defamation claim is also barred by the qualified privilege established by Civil Code
22 section 47(c). The privilege protects statements made
23 [i]n a communication, without malice, to a person interested therein, (1) by one
who is also interested, or (2) by one who stands in such a relation to the person
24 interested as to afford a reasonable ground for supposing the motive for the
communication to be innocent, or (3) who is requested by the person interested
25 to give the information.
26 Civil Code § 47(c); Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203-1204; Brown v. Kelly
27 Broadcasting Co. (1989) 48 Cal.3rd 711, 724.
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1 As the City stated in its moving papers, this privilege has been applied to all manner of torts
2 where the communication is between parties with an interest in the shared information. Begier v.
3 Strom (1996) 46 Cal.App.4th 877, 882. The privilege applies to a manager’s statements about a
4 plaintiff’s job performance. Deaile v. General Tel. Co. (1974) 40 Cal.App.3d 841, 846-847
5 (managers' statements to employees regarding plaintiff’s forced retirement); Neal v. Gatlin (1973) 35
6 Cal.App.3rd 871, 877 (manager's response to potential employer regarding plaintiff’s performance);
7 Kacludis v. GTE Sprint Comm. Corp. (N.D. Cal. 1992) 806 F.Supp. 866, 872-873 (manager's
8 disparaging comments to others in organization regarding plaintiff’s qualifications). As explained in
9 Deaile, the privilege protects various workplace interests, including the employer's own economic
10 interests. Deaile, supra, at 849-850. The privilege likewise extends to an employer’s statements to
11 employees regarding the reason for an employee’s release. King v. United Parcel Service, Inc. (2007)
12 152 Cal.App.4th 426, 440.
13 The statements that Novak alleges were defamatory – communications between employees at
14 the City who worked with Novak that he was released from employment – fall squarely within the
15 privilege of Civil Code section 47(c). See Id. Plaintiff’s Opposition Brief fails to cite any authority
16 contrary to this argument. In this case, the alleged defamatory communications were quite innocuous.
17 Novak alleges that he was informed that he was terminated by an employee at DAAS via an email.
18 (City’s UF 41.) The only other undisputed evidence of communications regarding Novak’s release
19 from employment are between employees at DAAS and Cogan – all of whom had a work related
20 reason to know of Novak’s employment status. None of these communications discussed the reason
21 for Novak’s release – just that he had been released. All communications undisputedly fall within the
22 ambit of Civil Code § 47(c). See Deaile, supra, at 849-50.
23 1. Novak Has Not Demonstrated Malice Sufficient To Overcome the Privilege
24 To overcome the qualified privilege, Novak must produce specific evidence that the alleged
25 statements were made with malice. Lundquist, supra, at 1208 (plaintiff bears burden of showing
26 statement was made with malice). For the purposes of the qualified privilege, malice is defined as “‘a
27 state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another.’”
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1 Id. at 1204. To satisfy this test, Novak must do more than plead "routine general allegations of malice
2 .... " Martin v. Kearney (1975) 51Cal.App.3rd309, 312. Rather, he bears the burden of producing
3 actual evidence that establishes malice. Id. Malice may not be inferred from statements protected by
4 qualified privilege. Ciy. Code§ 48.
5 Novak has not presented any evidence of malice to overcome the privilege. In fact, Teixeira
6 assumed when she made the announcement at a staff meeting that Novak had been released that
7 Human Resources had already contacted Novak. (City's Undisputed Fact 46.) See Martin, supra, at
8 312. Teixeira's deposition testimony also contradicts any assumption of malice. She testified the text
9 was not an appropriate message to sena in retrospect. (UF 47.) She did not find the situation funny,
10 but felt that since Novak did not appear to care about being open to feedback, she did not care either.
11 (UF 47 .) None of these undisputed facts illustrate hatred or ill will, or evidence any intent to injure
12 Novak. See Martin, supra, at 312. Because Novak cannot overcome the qualified privilege, the City
13 is entitled to summary judgment on his defamation claim.
14 CONCLUSION
15 Based on the foregoing, on the arguments set forth in the City's moving papers, and all
16 arguments set forth at the hearing on this matter, the City respectfully requests its motion for summary
17 judgment, or in the alternative summary adjudication as to any cause of action, be granted.
18
19 Dated: January 10, 2020 DENNIS J. HERRERA
City Attorney
20 KATHARINE HOBIN PORTER
Chief Labor Attorney
21 LISA BERKOWITZ
Deputy City Attorney
22
23
24
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Preview
1 DENNIS J. HERRERA, State Bar #139669 City Attorney 2 KATHARINE HOBIN PORTER, State Bar #173180 ELECTRONICALLY Chief Labor Attorney F I L E D 3 LISA BERKOWITZ, State Bar #167657 Superior Court of California, County of San Francisco Deputy City Attorney 4 Fox Plaza 01/10/2020 1390 Market Street, 5th Floor Clerk of the Court BY: EDNALEEN ALEGRE 5 San Francisco, California 94102-5408 Deputy Clerk Telephone: (415) 554-3825 6 Facsimile: (415) 554-4248 E-Mail: lisa.berkowitz@sfcityatty.org 7 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 UNLIMITED JURISDICTION 13 BRADLEY NOVAK, Case No. CGC-19-573659 14 Plaintiff, DEFENDANT CITY AND COUNTY OF SAN FRANCISCO’S REPLY TO PLAINTIFF’S 15 vs. OPPOSITION TO MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, 16 THE CITY AND COUNTY OF SUMMARY ADJUDICATION SAN FRANCISCO, a public entity, 17 SAN FRANCISCO COUNTY Reservation No. 009300116-06 DEPARTMENT OF AGING AND ADULT 18 SERVICES, a public entity, and DOES 1-20, Hearing Date: January 16, 2020 inclusive, Hearing Judge: Hon. Ethan P. Schulman 19 Time: 9:30 a.m. Defendants. Place: Department 302 20 Date Action Filed: February 8, 2019 21 Trial Date: February 18, 2020 22 Accompanying Document: Defendant’s Reply to Plaintiff’s Further Statement of Undisputed Facts In 23 Support of Opposition to Motion for Summary Judgment 24 25 26 27 28 1 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 1 INTRODUCTION 2 It is clear from Plaintiff Novak’s Opposition brief that the relevant material facts of this case 3 are simple and undisputed. The City, through Public Conservator Manager Sandra Teixeira, had 4 instructed the City’s expert psychiatrist witness – Novak - to limit his testimony to the issue of grave 5 disability when testifying in certain conservatorship hearings. However, Novak believed that he had 6 some obligation under statute and based on his professional ethical obligations to testify to subject 7 matter that was outside of this designated testimony. This dispute between the City and Novak began 8 to manifest in early 2018 and came to a head during conservatee Patrick McNulty’s Lanterman-Petris 9 Short (“LPS”) hearing in August of 2018. It is undisputed that McNulty’s two treating physicians had 10 opined that McNulty was gravely disabled under the applicable law. However, after interviewing 11 McNulty during the hearing, Novak, who was retained by the City to testify as to whether McNulty 12 was gravely disabled, opined that McNulty was not gravely disabled. It is undisputed that he informed 13 Sandra Teixeira and the City’s Assistant District Attorney Leslie Cogan, who was handling the case 14 for the City, of this opinion in a hallway outside the courtroom. The content of that brief conversation 15 is also undisputed. The women questioned Novak on two points regarding his opinion, obviously 16 frustrated that his opinion differed from McNulty’s treating physicians’ opinion on this issue. It is also 17 undisputed that Novak’s opinion was not going to further the District Attorney’s case, and so she did 18 not call him as a witness. It is undisputed that no one from the City asked Novak to testify and lie on 19 the stand at any point in time. It is undisputed that Novak took a seat on the bench outside the 20 courtroom and later left without testifying. 21 It is also undisputed that the issues that Teixeira had with Novak refusing to limit his testimony 22 motivated her to look at how and why the Department was using Novak in the first place. She 23 discovered that it was much more cost effective for the Department to request that the conservatee’s 24 treating physicians testify. It would also eliminate the appearance of bias that had occurred when 25 Novak consistently testified as the City’s expert witness. Accordingly, the City released Novak from 26 his employment with the City. 27 28 2 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 1 Based on these undisputed facts, Novak contends that he has set forth a prima facie Labor 2 Code § 1102.5 retaliation claim for whistleblowing activity. Novak is wrong. His argument falters at 3 the first prong of the analysis: He cannot show that he engaged in a protected activity under the 4 statute. Novak primarily bases his argument that he engaged in protected activity on analogizing his 5 actions to those of the Plaintiff in Ross v. County of Riverside (2019) 36 Cal.App.5th 580. However, 6 Novak’s role and actions here, as an expert witness for the City on the issue of grave disability, were 7 not the same as the Plaintiff in Ross – who was an Assistant District Attorney who had learned of 8 exculpatory evidence against a defendant and based on that evidence had recommended to his 9 superiors dismissing the case, and was then allegedly constructively discharged after that time. Nor 10 can Novak show that he was released because the City instructed him to participate in illegal activity, 11 as argued in Novak’s Opposition Brief. It is undisputed that no City employee ever asked Novak to lie 12 on the witness stand. Finally, the City presented legitimate business reasons as to why it released 13 Novak from employment. Novak failed to prove that these reasons were actually pretext for 14 whistleblowing retaliation. 15 The City is entitled to summary judgment on Novak’s defamation claim for the reasons set 16 forth in the City’s motion. Novak does not offer any persuasive authorities or argument in his 17 Opposition Brief sufficient to defeat the City’s arguments on this claim. 18 LEGAL ARGUMENT 19 I. NOVAK CANNOT ESTABLISH HIS LABOR CODE SECTION 1102.5 WHISTLEBLOWER RETALIATION CLAIM AS A MATTER OF LAW 20 California Labor Code Section 1102.5(b) prohibits an employer from retaliating “against an 21 employee for disclosing information… to a government or law enforcement agency, …if the employee 22 has reasonable cause to believe that the information discloses a violation of state or federal statute, or a 23 violation of or noncompliance with a local, state or federal rule or regulation.” Subsection (c) 24 provides that an employer … “shall not retaliate against an employee for refusing to participate in an 25 activity that would result in a violation of state or federal statute, or a violation or noncompliance with 26 a local, state or federal rule or regulation.” 27 28 3 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 1 As set forth in the City’s moving papers, California courts apply a shifting burdens model of 2 proof for Labor Code Section 1102.5 retaliation claims. Akers v. County of San Diego (2002) 95 3 Cal.App.4th 1441, 1453; Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 4 1383-1384. The plaintiff bears the initial burden of establishing a prima facie case of retaliation by 5 showing that: (a) he engaged in protected activity; (b) the employer subjected him to an adverse 6 employment action; and (c) there is a causal link between the two. Patten, supra, at 1383-4. If the 7 plaintiff satisfies these prongs, the burden shifts to the employer to articulate a nondiscriminatory 8 reason for its actions. Once the employer offers that reason, the burden shifts back to the plaintiff to 9 prove that discrimination was the real reason for the adverse action. Hersant v. Department of Social 10 Services (1997) 57 Cal.App.4th 997, 1003. 11 Novak’s retaliation claim fails at the first step of this analysis. He did not disclose information 12 to a government agency where he had reasonable cause to believe the information disclosed a violation 13 of state or federal statute, or a violation of or noncompliance with a local, state or federal rule or 14 regulation within the meaning of the statute. See Labor Code § 1102.5(b). He also fails to show that 15 he refused to participate in an activity that would result in a violation of state or federal statute. See 16 Labor Code § 1102.5(c). 17 A. NOVAK DID NOT DISCLOSE INFORMATION TO THE CITY THAT HE REASONABLY BELIEVED TO VIOLATE STATE OR FEDERAL LAW 18 Novak first argues that his internal complaints to Teixeira regarding his testimony in 19 conservatorship cases fall within the scope of Section 1102.5(b). (Opposition Brief at 9:9-21.) Novak 20 relies on Ross, supra, to argue that in disputing Teixeira’s instruction to him to limit his testimony to 21 omit discussing the quality of medical records and his opinion as to the level of care facility, Teixeria 22 was asking Novak to engage in conduct that he believed violated the LPS Act, a conserved 23 individual’s civil and constitutional due process rights and his own ethical standards of care as a 24 psychiatrist. Novak’s reliance on Ross for this point is incorrect. 25 In Ross, the Plaintiff, an Assistant District Attorney, disclosed to his superiors evidence that 26 exculpated a Defendant from a crime – evidence that showed the Defendant’s confession was coerced 27 and DNA evidence that exculpated him, among other things. Ross, supra, at 592. The Court in that 28 4 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 1 case found a triable issue of fact on Ross’ Labor Code § 1102.5(b) claim because it found that Ross 2 had a reasonable belief that continued prosecution in light of this exculpatory evidence violated his 3 prosecutorial ethical obligations under Business and Professions Code § 6808 and his prosecutorial 4 duties under Government Code § 26501. Id. (The Court did not reach the issue of Ross’ Labor Code 5 § 1102.5(c) claim. Id. at 593.) 6 Contrary to the Plaintiff’s actions in Ross, it was not Novak’s job to opine on issues outside of 7 his designated expert witness testimony subject matter. It was Ross’ job as an Assistant District 8 Attorney to prosecute cases fairly. Novak was not an Assistant District Attorney tasked with 9 prosecuting a case, as in Ross. He was an expert witness retained to testify on a discrete issue in a 10 conservatorship hearing. 11 Additionally, Novak did not inform Teixeira of “information” that “discloses a violation of 12 state or federal law”. Labor Code § 1102.5(b). Novak incorrectly relies first on California Welfare 13 and Institutions Code § 5150 as the statute on which he bases his Section 1102.5(b) claim. That 14 statute addresses involuntary civil commitments and grave disability. Novak informing the City that 15 limiting his testimony to grave disability clearly does not violate this statute, nor is it clear why Novak 16 would reasonably believe this to be so. 17 Novak next incorrectly argues that Ms. Teixeira’s instructions constituted obstruction of justice 18 under 18 U.S.C. § 1505. This argument likewise fails. Novak was not withholding or concealing 19 evidence from the Court. It is not an expert witness’ job to opine on matters outside of their 20 designated testimony and which they are not asked. In requesting that he limit his testimony, Teixeira 21 was not instructing Novak to “corruptly” obstruct a pending proceeding, and it would not be 22 “reasonable” under Labor Code § 1102.5(b) for Novak to think so. See 18 U.S.C. § 1505. It would 23 be a wildly speculative stretch to interpret these facts as compelling an obstruction of justice. See 24 Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-20 (speculations, suspicions, 25 opinions and conclusory allegations are inadmissible and cannot constitute evidence in support of 26 pretext or discriminatory or retaliatory animus.) 27 28 5 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 1 In sum, Novak fails to establish a violation of Labor Code § 1102.5(b) because he cannot show 2 that he disclosed information to the City that he had reasonable cause to believe constituted a violation 3 of state or federal law. 4 B. NOVAK DID NOT REFUSE TO PARTICIPATE IN AN ACTIVITY THAT WOULD RESULT IN A VIOLATION OF STATE OR FEDERAL LAW 5 Whether Novak can show that he refused to participate in an activity that would result in a 6 violation of state or federal law for purposes of Labor Code § 1102.5(c) is “quintessentially a legal 7 question.” Nejadian v. County of Los Angeles (October 31, 2019) 40 Cal.App.5th 703, 718. In order 8 for the Court to make that determination, Novak must “identify what specific activity he or she refused 9 to participate in and what specific statute, rule or regulation would be violated by that activity.” Id. at 10 719. 11 Novak argues first that Teixeira illegally requested that he withhold evidence about the 12 appropriate level of care of conservatee in violation of California Welfare & Institutions Code § 5358. 13 Again, it was not Novak’s job to opine on this issue. It is not illegal under that statute or any other 14 statute, for an expert witness to be instructed to limit his testimony to a designated subject matter. 15 Novak next argues that Teixeira and Cogan illegally pressured him to change his opinion that 16 McNulty was not gravely disabled. (Opposition Brief at p. 12.) This statement is contrary to the 17 undisputed facts. It is undisputed - from Plaintiff’s own deposition testimony - that Teixeira and 18 Cogan asked Novak two questions when he informed them of his opinion that McNulty was not 19 gravely disabled. (See City’s Undisputed Fact 31.) When Novak stuck to his opinion, it is undisputed 20 that neither woman attempted to convince Novak to change his mind. (Undisputed Fact 32.) There 21 was no “pressuring” involved. No City employee instructed Novak to perjure himself. The women 22 went back to the hearing and Novak sat on a bench outside the room. (Undisputed Fact 33.) 23 Accordingly, Novak fails to establish his Labor Code § 1102.5(c) claim. 1 24 1 25 Novak’s reliance on Ferretti v. Pfizer, Inc. (N.D. Cal. 2012) 855 F.Supp.2d 1017, 1025-6 is not applicable here. In that case, the Court denied Defendants’ motion to dismiss the Complaint, 26 finding that the Plaintiff has sufficiently alleged that she engaged in protected activity when she reported violations of federal regulations in the conducting of clinical drug trials to her superiors. That 27 decision was not a summary judgment decision, and the facts are so dissimilar to the facts at bench to render it inapplicable here. 28 6 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 C. THE CITY HAD LEGITIMATE NONRETALIATORY REASONS FOR 1 RELEASING NOVAK FROM EMPLOYMENT AND NOVAK CANNOT SHOW PRETEXT FOR RETALIATION 2 As stated in the City’s moving papers, if Novak had established a prima facie claim, then the 3 burden shifts to the City to articulate a legitimate, non-retaliatory reason for its decisions. Once the 4 City makes that showing, Novak must offer substantial evidence that the City's stated reasons for the 5 adverse action are untrue or pretextual, or evidence that the City acted with a retaliatory animus, or a 6 combination of the two, such that a reasonable trier of fact could conclude that the City engaged in 7 retaliation. Hersant, supra, at 1003. Speculation does not constitute substantial evidence sufficient to 8 rebut the City’s legitimate, nondiscriminatory reasons. Horn v. Cushman & Wakefield Western, Inc. 9 (1999) 72 Cal.App.4th 798, 807-808. 10 In his Opposition Brief, Novak argues that the City’s proffered legitimate, non-retaliatory 11 reasons for releasing him were actually pretext for retaliation for whistleblowing activity. Novak 12 essentially argues 1) that because he had not been released prior to August of 2018 that his termination 13 must be based on his alleged protected activity and 2) his own self-serving opinion that treating 14 doctors do not provide better testimony that he himself can provide as a forensic psychiatrist. 15 As to Novak’s first argument, Teixeira testified that the problems she was having with Novak 16 not limiting his testimony to the subject matter requested motivated her to look at how and why the 17 Department was using Novak in the first place. She found that it was much more cost effective to use 18 treating physicians from the Department of Public Health instead of Novak. (See the City’s Response 19 to Plaintiff’s Undisputed Fact 46.) There is no evidence that anyone even looked at whether there was 20 a more effective way to present the Department’s case prior to that time. 21 As to Novak’s second argument, Novak’s opinion that a forensic psychiatrist is a better witness 22 for the Department on the issue of grave disability than a treating physician is just his opinion. This 23 opinion does not establish retaliatory pretext. An equally compelling argument can be made that the 24 patient’s treating doctor, who has knowledge of the patient’s health history, illnesses, etc., is the better 25 witness for the Department in regards to grave disability. 26 Accordingly, for the all of the preceding reasons, and the arguments set forth in the City’s 27 moving papers, the City is entitled to summary judgment on Novak’s retaliation claim. 28 7 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 1 II. NOVAK’S DEFAMATION CLAIM FAILS AS A MATTER OF LAW BECAUSE THE ALLEGED DEFAMATORY STATEMENTS ARE TRUE AND BECAUSE THE 2 STATEMENTS ARE BARRED BY CIVIL CODE SECTION 47(C) 3 Novak argues in his Opposition Brief that the alleged defamatory statements are true and that 4 the statements were not privileged under Civil Code Section 47(c.) Neither claim has merit under the 5 well established case authority cited in the City’s moving papers. A. NOVAK’S DEFAMATION CLAIM FAILS AT THE OUTSET BECAUSE THE 6 ALLEGED DEFAMATORY STATEMENTS ARE NOT FALSE 7 “Truth is a complete defense to a defamation action regardless of the malice or ill will of the 8 publisher.” Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 541; Smith v. Maldonado 9 (1999) 72 Cal.App.4th 637, 646-647. To support a defamation claim, a publication must constitute a 10 false statement of fact. “[T]he dispositive question . . . is whether a reasonable fact finder could 11 conclude that the published statements imply a provably false assertion.” Jensen v. Hewlett-Packard 12 Co. (1993) 14 Cal.App.4th 958, 970 (quotations omitted). 13 Novak claims that the alleged defamatory statements were false because Teixeira stated on 14 August 10, 2018 that she had separated Novak on that date, and yet the notice of release letter sent to 15 Novak on August 10, 2018 stated that his release would be effective two weeks later – on August 24, 16 2018. (Opposition Brief at p. 18.) This is a distinction without a difference. It is undisputed that the 17 City intended to release Novak prior to him deciding to resign. (City’s Undisputed Fact 42.) It is a 18 true statement to state that Novak was notified on August 10, 2018 that he was to be released from 19 City employment as of two weeks later. 20 B. THE MEMORANDUM ARE PRIVILEGED UNDER CIVIL CODE § 47(c) 21 Novak's defamation claim is also barred by the qualified privilege established by Civil Code 22 section 47(c). The privilege protects statements made 23 [i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person 24 interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested 25 to give the information. 26 Civil Code § 47(c); Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203-1204; Brown v. Kelly 27 Broadcasting Co. (1989) 48 Cal.3rd 711, 724. 28 8 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 1 As the City stated in its moving papers, this privilege has been applied to all manner of torts 2 where the communication is between parties with an interest in the shared information. Begier v. 3 Strom (1996) 46 Cal.App.4th 877, 882. The privilege applies to a manager’s statements about a 4 plaintiff’s job performance. Deaile v. General Tel. Co. (1974) 40 Cal.App.3d 841, 846-847 5 (managers' statements to employees regarding plaintiff’s forced retirement); Neal v. Gatlin (1973) 35 6 Cal.App.3rd 871, 877 (manager's response to potential employer regarding plaintiff’s performance); 7 Kacludis v. GTE Sprint Comm. Corp. (N.D. Cal. 1992) 806 F.Supp. 866, 872-873 (manager's 8 disparaging comments to others in organization regarding plaintiff’s qualifications). As explained in 9 Deaile, the privilege protects various workplace interests, including the employer's own economic 10 interests. Deaile, supra, at 849-850. The privilege likewise extends to an employer’s statements to 11 employees regarding the reason for an employee’s release. King v. United Parcel Service, Inc. (2007) 12 152 Cal.App.4th 426, 440. 13 The statements that Novak alleges were defamatory – communications between employees at 14 the City who worked with Novak that he was released from employment – fall squarely within the 15 privilege of Civil Code section 47(c). See Id. Plaintiff’s Opposition Brief fails to cite any authority 16 contrary to this argument. In this case, the alleged defamatory communications were quite innocuous. 17 Novak alleges that he was informed that he was terminated by an employee at DAAS via an email. 18 (City’s UF 41.) The only other undisputed evidence of communications regarding Novak’s release 19 from employment are between employees at DAAS and Cogan – all of whom had a work related 20 reason to know of Novak’s employment status. None of these communications discussed the reason 21 for Novak’s release – just that he had been released. All communications undisputedly fall within the 22 ambit of Civil Code § 47(c). See Deaile, supra, at 849-50. 23 1. Novak Has Not Demonstrated Malice Sufficient To Overcome the Privilege 24 To overcome the qualified privilege, Novak must produce specific evidence that the alleged 25 statements were made with malice. Lundquist, supra, at 1208 (plaintiff bears burden of showing 26 statement was made with malice). For the purposes of the qualified privilege, malice is defined as “‘a 27 state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another.’” 28 9 DEFENDANT’S REPLY TO PF’S OPP. TO MSJ n:\labor\li2019\190528\01414175.docx Case No. CGC-19-573659 1 Id. at 1204. To satisfy this test, Novak must do more than plead "routine general allegations of malice 2 .... " Martin v. Kearney (1975) 51Cal.App.3rd309, 312. Rather, he bears the burden of producing 3 actual evidence that establishes malice. Id. Malice may not be inferred from statements protected by 4 qualified privilege. Ciy. Code§ 48. 5 Novak has not presented any evidence of malice to overcome the privilege. In fact, Teixeira 6 assumed when she made the announcement at a staff meeting that Novak had been released that 7 Human Resources had already contacted Novak. (City's Undisputed Fact 46.) See Martin, supra, at 8 312. Teixeira's deposition testimony also contradicts any assumption of malice. She testified the text 9 was not an appropriate message to sena in retrospect. (UF 47.) She did not find the situation funny, 10 but felt that since Novak did not appear to care about being open to feedback, she did not care either. 11 (UF 47 .) None of these undisputed facts illustrate hatred or ill will, or evidence any intent to injure 12 Novak. See Martin, supra, at 312. Because Novak cannot overcome the qualified privilege, the City 13 is entitled to summary judgment on his defamation claim. 14 CONCLUSION 15 Based on the foregoing, on the arguments set forth in the City's moving papers, and all 16 arguments set forth at the hearing on this matter, the City respectfully requests its motion for summary 17 judgment, or in the alternative summary adjudication as to any cause of action, be granted. 18 19 Dated: January 10, 2020 DENNIS J. HERRERA City Attorney 20 KATHARINE HOBIN PORTER Chief Labor Attorney 21 LISA BERKOWITZ Deputy City Attorney 22 23 24 By: Q tt.Llttf ,. 1 LISJ.