King v.
Filed 7/3/13 King v.
County of Ventura CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KYLE KING,
Plaintiff and
Appellant,
v.
COUNTY OF VENTURA,
Defendant and
Respondent.
2d Civil No.
B242411
(Super. Ct. No.
56-2009-00357224-CU-OE-VTA)
(Ventura
County)
Appellant Kyle King's
employer, respondent County of
(County), dismissed him from probation less than two months after the County
investigated his complaints of misconduct by his initial training officer. King sued the County for retaliation under
the California Fair Employment and Housing
Act (FEHA). (Gov. Code, § 12940.)
for summary judgment.
As we shall explain,
King established a prima facie case giving rise to a rebuttable presumption of
that presumption by demonstrating a legitimate, non-retaliatory reason for
King's dismissal. Once the presumption
of retaliation disappeared, the burden shifted to King to raise a triable issue
of material fact that the County was more likely than not motivated by a
retaliatory intent. He failed to meet
that burden. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On May 4, 2008, King and coworker Cory Coffey began a
six-month employee probationary period as fire specialists with the Fire
Prevention Bureau (Bureau) of the Ventura County Fire Department
(Department). The fire marshal who headed
the Bureau assigned Larry Williams as their supervisor and Aaron Greer as their
training officer. At that time, the fire
marshal knew Greer "was not going to be happy and was not happy [with the]
assignment." Before King and Coffey
reported for work, Williams candidly told them that there were problems with
Greer and asked them to report any inappropriate communications or conduct by
Greer.
During the first week of training,
Greer started talking negatively about other Department employees, particularly
the fire marshal.
title="">
eight hours of negative and improper comments about the
[Department]." Greer told
them: "Nobody there knows what
they're doing. Everybody has their heads
up their [ass]." He described an affair
the fire marshal purportedly had, or was having, with the Department's
assistant chief. Greer told King and
Coffey that the assistant chief's wife, after learning of the affair, had
created a scene at the Department's headquarters and then vandalized the fire
marshal's home by spray-painting the word "whore" on her
driveway. Greer told them to watch the
couple's body language at the next meeting, as "the fire was still
burning."
Greer also described the fire
marshal's purported behavior with other Department employees, saying "she
sleeps around with everybody, all the line guys." He told King and Coffey that the fire marshal
had discovered that one of her former male sex partners, who also was a County
employee, had died from an AIDS-related illness. Greer stated the fire marshal subsequently
was tested for the HIV virus, and as word spread through the Department,
approximately 12 male officers with whom she had been sexually involved sought
reimbursement from the union for the costs of testing. Greer warned King that the fire marshal was
still "on the prowl," and was eyeing King as a possible partner.
Uncomfortable with these comments,
King and Coffey complained to Williams.
They reported that Greer was spending a great deal of training time discussing
the fire marshal's sex life and who was sleeping with whom in the
Department. Williams agreed that the
comments were inappropriate for the work place and discussed their concerns
with Pam Mack, the Department's Human Resources Director. Mack instructed Williams to obtain written
statements from King and Coffey. After
receiving the statements, Tom Dorch of the County Executive Office investigated
the complaints. Mack and Dorch
repeatedly assured King and Coffey that the complaints would remain
confidential. King and Coffey also were
told not to make any further complaints about Greer. The County acknowledges "that something
approximating the claimed misbehavior did occur."
After their meeting with Dorch, King
felt he was getting the "cold shoulder" from formerly friendly
coworkers. One of the coworkers,
Inspector Richard Martinez, approached Coffey and said he knew that she and
King had "told on" Greer. When
King and Coffey told Mack what Martinez
had said, Mack acknowledged a "leak" and said they were searching
through Department e-mails to determine its source.
Following the investigation, the
fire marshal, who was aware of the complaints, assigned Rodrigo Torres as King
and Coffey's supervisor. The fire
marshal told Torres she thought he "could provide a much better training
environment for [them]." Torres
claims he was not informed of either the complaints or the investigation.
At the time of the supervisorial
transfer on June 8, 2008,
Greer told Torres that both probationers were performing satisfactorily. Greer provided Torres with their training
verification checklists, which are used by the Bureau as a guide in the
training of new personnel. The checklists
showed the areas that needed to be covered during training and also verified
that such areas were covered. Torres
denied any knowledge of the checklists.
Torres assigned King to clerical
duties at the Department's main public counter and placed Coffey in a different
clerical position. Torres assigned an
experienced, trusted employee, Mark Enneking, to train King at the
counter. According to Enneking,
"[w]orking at the Public Counter can be stressful as the Counter can get
busy. As part of the duties I handled, I
would quote the public applicable fees for a permit. This entailed looking up the fee schedules
and making certain calculations. At
times the schedules themselves could be confusing." Enneking claims that Torres never asked him
for his input or opinion on King's work performance and that, in Enneking's
view, King's performance at the counter was satisfactory.
On July 15, 2008, Torres gave King a written probationary
performance review which stated King "need[s] improvement" in 7 of
the 25 categories. The review indicated
that King should continue to study and learn Department policies and
procedures, ensure that documents are completed accurately and in a timely
manner, improve on attention to detail, ensure that personal and public safety
is not compromised, complete tasks as assigned and display ability to make
appropriate decisions. The review did
not include any specific examples of performance deficiencies.
Torres and King orally discussed the
areas in which he needed to improve.
King agreed with some of the criticisms, particularly improving his
knowledge of certain codes. Torres
claims that he told King at that time, and again on August 4, 2008, that he was not on the road to
completing probation. King contends that
no one ever told him he was in danger of dismissal.
While observing King at the counter,
Torres noted "multiple transactions
. . . where the documents were
incomplete and the forms were incorrect."
On August 1, 2008, Torres discovered that King had not properly
"closed" the public counter.
King had left on the TVs and had stuffed the unfolded flags in a
drawer. Torres subsequently recommended
that King be dismissed from probation.
On August 28, 2008, the fire marshal called King into her office and gave
him a written notice of probationary dismissal, which she had signed. The notice gave no reasons for his
dismissal. When King asked why he was
being dismissed, Torres "showed [him] two mistakes that [he] had made
three weeks prior on charging somebody wrong at the counter." The fire marshal also stated: "We don't think you're a good fit for
this [D]epartment." The fire chief
denied King's request for a hearing to seek clarification of the reasons for
his termination. A few days after his
dismissal, Torres discarded King's training file. Approximately five weeks later, the County
dismissed Coffey from probation.
he was supervising King, Torres prepared an activity/event log documenting
King's performance. In addition to
noting the probationary performance review meeting on July 15, 2008, the log
lists three specific performance issues that occurred prior to King's
dismissal. The first and most
significant incident occurred when King was on arson patrol on July 5,
2008. King was having trouble seeing
while driving at night in a poorly lit area of Fillmore and asked permission to
leave his shift early. The log states
that Torres "offer[ed] to pick [King] up but he has already returned and
is in the HQ parking lot." It
further states that when King returned from patrol, Torres "explained
[his] concern with [King's] poor use of judgment in driving a county vehicle
when he was not able to see well at night."
King disputes Torres's account of
the incident. King testified that when
he called Torres to report the issue, Torres responded: "Oh, no problem. Just come on back." Torres also said: "It's not an issue. Don't worry about it." King claims he did not realize there was an
issue until it came up during his performance review.
The second incident in the log
occurred on July 8, 2008, when King "turn[ed] in his timecard unsigned and
without required ICS-214 for 4th of July."
According to Torres, he had to ask King three separate times to sign and
turn in his timecard. King claims he
signed and turned in his timecard as requested.
The third incident was King's
failure to turn off the TVs and to properly fold the flags when he closed the
office on August 1, 2008. King asserts
that after Torres counseled him on appropriate "closing" procedures,
King had a coworker show him how to correctly fold the flags.
The log further notes
that following King's dismissal, Torres received "copies of multiple
incoming transmittals, receipts and inspection request with mistakes and not
filled out completely." The log
reflects that the Department concluded that King was responsible for
"[a]ll discrepancies," and issued refunds to customers totaling
several thousand dollars.
Additionally, the record
reflects that King observed a "small grass fire" when he was on arson
patrol on July 5, 2008. King noted the
grass fire in his daily activity log but did not describe what he did in
response to the fire. King responds that
"[a]t the time, I had not been instructed on what to write in my log when
I came upon a scene where fire department personnel were already there. I did note the fire in my log, but did not
include any facts." King did,
however, record specific details about other matters, including his dinner
plans.
Following his dismissal, King filed
a complaint against the County for retaliation in violation of section 12940,
wrongful termination and breach of contract.
He claims he was dismissed because he was perceived as a
"snitch." The County moved for
summary judgment. King opposed the
motion, asserting that triable issues of material fact exist regarding whether
he was dismissed because of his complaints about Greer. The trial court granted the motion. Relying upon Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52 (
County had established "that the person responsible for the decision to
terminate plaintiff, Rod Torres, had no knowledge that [King] or anyone else
had made a complaint about Greer and was unaware of the investigation into
[King's] complaint." The trial
court determined that King "offers nothing but rank speculation in
response, and this is not specific or substantial enough to meet his
burden."
The trial court also determined that
Torres had legitimate, non-retaliatory reasons for recommending King's
dismissal. The court stated: "It is undisputed that his evaluation in
July, 2008, indicated [King] needed improvement. He had to be asked three times to turn in his
time card, and it wasn't signed.
Plaintiff omitted information from phone messages, inspection requests,
and applications and made fee calculation errors." The court observed that "[a]t best,
plaintiff complains that he received no training and was assigned to difficult
assignments. But there is no indication
that this occurred because of his complaint." King appeals.
DISCUSSION
We review an order granting summary
judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We apply the same rules and standards as the
trial court, but "'. . . are not bound by the trial court's stated reasons
or rationales. . . .'" (
(2009) 180 Cal.App.4th 430, 436.)
Summary judgment must be granted if "all the papers submitted show
that there is no triable issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "There is a triable issue of material
fact if, and only if, the evidence would allow a reasonable trier of fact to
find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof." (Aguilar,
at p. 850, fn. omitted.) We view the
facts in the light most favorable to the nonmoving party and assume that, for
purposes of our analysis, his version of all disputed facts is correct. (Sheffield
v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153,
159.)
1.
Shifting
Burdens in Retaliation Cases
King contends the
County violated FEHA by dismissing him from probation in retaliation for his
complaints about Greer. As the County
points out, a probationary employee ordinarily can be terminated without good
cause, notice or a hearing. (
Governing Bd. of East Side Union High School Dist. (2011) 193 Cal.App.4th
540, 543, fn. 2; see Phillips
Cal.App.3d 996, 1000 ["[a] probationary employee of a public agency may be
dismissed without a hearing and without judicially cognizable good
cause"].) It is unlawful, however,
to retaliate against an individual who has complained about, or filed a
complaint regarding, sexual harassment or hostile work environment. (§ 12940, subd. (h).)
Because plaintiffs in employment
retaliation cases generally lack direct evidence of the employer's retaliatory
intent, "courts rely on a system of shifting burdens to aid the
presentation and resolution of such claims." (Morgan,
supra, 88 Cal.App.4th at p. 68.)
Under the three-part test developed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, "(1) the
complainant must establish a prima facie case of [retaliation]; (2) the
employer must offer a legitimate reason for [its] actions; (3) the complainant
must prove that this reason was a pretext to mask an illegal motive." (Clark
v. Claremont University Center (1992) 6 Cal.App.4th 639, 662.)
To
establish a prima facie case of retaliation, a plaintiff must show that he
engaged in a protected activity, that his employer subjected him to an adverse
employment action, and that a "causal link" existed between the
protected activity and the employer's action.
(Yanowitz v. L'Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1042.) If the
plaintiff establishes a prima facie case, a rebuttable presumption of
retaliation arises and the burden shifts to the employer to rebut the
presumption with evidence that its action was taken for a legitimate
reason. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355-356;
retaliation disappears, and the burden shifts back to the plaintiff, who must
offer evidence demonstrating that the employer's justification is a pretext for
retaliation, or offer additional evidence of retaliation. (Guz, at
p. 356; Yanowitz, at p. 1042;
Rehabilitation (2006) 142 Cal.App.4th 377, 388-389 (McRae).)
"[W]hether
or not a plaintiff has met his or her prima facie burden, and whether or not
the defendant [employer] has rebutted the plaintiff's prima facie showing, are
questions of law for the trial court, not questions of fact for the
jury." (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th
189, 201 (Caldwell).) In other words, "if the plaintiff cannot
make out a prima facie case, the employer wins as a matter of law. If the employer cannot articulate a
nondiscriminatory reason for the adverse employment decision, the plaintiff
wins as a matter of law. In those instances, no fact finding is
required, and the case will never reach a jury." (Id.
at p. 204.)
2.
Prima
Facie Case of Retaliation
There is no
dispute that King engaged in a protected activity when he reported Greer's
misconduct, and that he suffered an adverse employment action when he was
dismissed from probation. The dispute
centers on whether King has met his prima facie burden of showing that a causal
link existed between the two. Direct
evidence of retaliatory intent is not required to prove causation. (Flait
v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 478.) Rather, "'[t]he causal link may be
established by an inference derived from circumstantial evidence, "such as
the employer's knowledge that the [employee] engaged in protected activities
and the proximity in time between the protected action and allegedly
retaliatory employment decision."'
[Citation.]" (
214 Cal.App.3d 590, 615.) This burden is
"not onerous" and the evidence required to sustain it is
minimal. (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th
1735, 1751; Caldwell, supra, 41
Cal.App.4th at p. 197.)
The County asserts that King cannot
show a causal link because the uncontroverted
evidence established that Torres was unaware of the protected activity when
he recommended King's dismissal. The
County relies heavily upon Morgan, in
which the plaintiff alleged that his layoff was due to racial
discrimination. After an arbitrator
found that legitimate business reasons motivated the layoff, the plaintiff
unsuccessfully applied to be rehired, and filed an employment discrimination
action. (88 Cal.App.4th at p. 62.) The Court of Appeal concluded that summary
judgment was proper because there was no evidence that plaintiff was qualified
for the positions he had sought or that the decision-makers who denied his
applications knew of his prior discrimination complaint. (Id.
at pp. 72-80.) Although plaintiff
established that certain employees were aware of the complaints, he was unable
to show that any of those employees were involved in the various departments'
decisions not to hire him. (
individuals who decided not to hire [plaintiff] for a particular position
disclaimed knowledge of the fact that [he] had previously filed a grievance
against the [employer]. Without such
knowledge, these individuals could not have acted in retaliation for
[plaintiff's] filing of the grievance."
(Id. at p. 74.)
The difference here is that Torres
was not the only individual involved
in King's dismissal. As King's
supervisor, Torres had authority to recommend King's rejection from probation,
but that decision had to be approved at a higher level. The fire marshal admitted during her deposition
that "[a] lot of [dismissal] decisions are based on recommendations from .
. . direct supervisors. So again,
there's multiple people included in the decision-making process." She acknowledged that if the fire chief said
we are not, you know, dismissing this person, then he would not be
dismissed.
Morgan court recognized that when
employment decisions involve more than one level of review, "the final
decision may be influenced by the discriminatory intent of individuals playing
a role at any point in the
decisionmaking process." (
italics added.) King established that
the fire marshal, as the head of the Bureau, was aware of the nature of the
protected activity and of the investigation.
She also was the principal target of Greer's inappropriate
comments. Following the investigation,
the fire marshal reassigned King and Coffey to Torres for supervision and
training. Less than two months later,
she authorized King's dismissal. Given
the fire marshal's knowledge of King's complaints and her personal involvement
in reassigning and dismissing King within a two-month period, we conclude that
King made the "minimal" evidentiary showing necessary to sustain a
prima facie case of retaliation. (See
Caldwell, supra, 41 Cal.App.4th at p.
197.)
3. Legitimate, Non-Retaliatory Reason for Dismissal
Once King
established a prima facie case of retaliation, the burden shifted to the County
to show a legitimate, non-retaliatory reason for his dismissal. (Caldwell,
supra, 41 Cal.App.4th at p. 201.)
This is a burden of production, not persuasion. (Ibid.) The employer need not persuade the court that
it was actually motivated by the proffered reasons. It is only required to raise a genuine issue
of fact as to whether it retaliated against the employee, by setting forth
admissible evidence of its reasons for the dismissal. (Id.
at pp. 200-201.) The employer's
explanation need not be "sound, fair, or correct, but only colorable
enough that a rational jury could believe it to have been the employer's true
motivation. [Citation.]" (Reeves
v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112, fn. 12.)
The
County proffered substantial evidence of King's substandard performance during
his probation. This included evidence
that King exercised poor judgment by driving a County vehicle while
experiencing night blindness, failing to report the outcome of a brush fire,
making numerous mistakes at the public counter, failing to sign and submit his
timecard in a timely fashion and leaving the office without properly
"closing" the counter. King
acknowledges that when he was dismissed, Torres showed him two calculation
errors he had made at the counter. This
evidence, if believed by a jury, could reasonably support a judgment in the
County's favor. We conclude that the
County satisfied its burden of articulating a legitimate, non-retaliatory
reason for King's dismissal.
Triable Issue as to Intentional Retaliation
After the County met its burden, the
presumption of retaliation "simply drops out of the picture" and the
burden shifts back to King to demonstrate a triable issue of material fact that
the County's proffered justification was mere pretext. (St.
Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 510-511;
388-389.) King cannot satisfy this
burden simply by submitting evidence that the County's decision was wrong or
unwise. He must demonstrate that its proffered
reasons were so inherently implausible that a reasonable factfinder could
rationally find them unworthy of credence, and infer that the County did not
act for the stated legitimate reasons. (
retaliatory reason for his termination, he must introduce "specific"
and "substantial" circumstantial evidence raising a triable issue of
material fact that the County was more likely than not motivated by a
discriminatory reason. (
First, King contends that a triable
issue exists regarding whether Torres or the fire marshal was the decisionmaker
in dismissing him from probation.
Although the fire marshal's involvement in his dismissal was relevant to
assess whether King had established a prima facie case, it did not by itself
create a triable issue as to whether the County, having presented legitimate
reasons for the dismissal, acted with retaliatory intent. King has no evidence that the fire marshal
did anything more than "rubber stamp" Torres's recommendation to
dismiss King from probation. Without any
additional evidence, a jury would have to speculate that the fire marshal
approved Torres's recommendation, not because of the reasons given by Torres,
but because she had a retaliatory motive due to her knowledge of the complaints
about Greer. A plaintiff's
"'suspicions of improper motives . . . primarily based on conjecture and
speculation' are not sufficient to raise a triable issue of fact to withstand
summary judgment." (
1563-1564.)
Next, King asserts that a triable
issue exists regarding whether Torres was aware of the complaints about Greer
when he recommended King's dismissal.
Torres adamantly denies having any knowledge of the complaints or the
investigation until King filed this lawsuit.
King testified that, to his knowledge, no one at the Department ever
said or wrote anything indicating that the complaints were the reason for his
dismissal. King further admitted that he
has no specific information that Torres ever knew about the complaints. His theory is that Torres must have known
because at least one other employee, Inspector Martinez, told Coffey that he
had heard that she and King had "told on" Greer. The County maintains that this statement is
inadmissible hearsay, but even if it is admissible, it does not create a
triable issue that Greer also heard about the complaints and then retaliated
based on such gossip. "[M]ere
workplace gossip is not a substitute for proof." (Beyda
v. City of Los Angeles (1998) 65 Cal.App.4th 511, 521.)
Finally, King devotes much of his
brief to explaining why all the reasons given for his rejection from probation
were illogical, weak or lacked merit, and why he was "on track" to
satisfactorily complete his probation.
He is correct that evidence showing that the employer's claimed reason
for dismissal is false may "suggest that the employer seeks to conceal the
real reason for its actions, and this in turn may support an inference that the
real reason was unlawful." (
165 Cal.App.4th 686, 715.) In
that the evidence supported such an inference because the employer "never
rested on a single coherent explanation for its firing of [the plaintiff], and
that several if not all of its explanations were, to put it mildly,
questionable." (
During his 2008 probationary
performance review, King acknowledged that he needed to improve in certain
areas. At his deposition, he admitted
certain deficiencies in his performance, including making "[a]n occasional
mistake at the counter" and miscalculating fees on three or four
occasions. King also admitted that,
except for creating an organizational chart, he was not assigned tasks above
his ability level. He claims that
certain criticisms of his performance were mistaken or unfair, but a
"plaintiff's subjective beliefs in an employment . . . case do not create
a genuine issue of fact; nor do uncorroborated and self-serving
declarations." (
152 Cal.App.4th 426, 433; Horn v. Cushman
& Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 816 ["[A]n
employee's subjective personal judgments of his or her competence alone do not
raise a genuine issue of material fact"].)
The plaintiff's evidence must relate to the motivation of the decisionmakers to establish, by nonspeculative
evidence, an actual causal link between the prohibited activity and
dismissal. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774.)
There is no question that the
Department's decision to assign King to a training officer who was causing
"problems" and who was unhappy with the assignment placed him in a
difficult situation. That the Department
could have done more to prevent the misconduct in the first place does not mean
that it retaliated against King once the complaints were made. The record reflects that the County investigated
the complaints and, as a result, transferred him to a new supervisor. King has no evidence that anyone in the
Department thought Greer's behavior was appropriate and should not have been
reported. To the contrary, even Greer
admits that King and Coffey were placed in a "hostile work
environment."
King did introduce evidence that
Greer thought King was performing satisfactorily before the transfer, and that
coworker Enneking believed King's performance at the counter was satisfactory
notwithstanding some mistakes. King
further claimed that after the investigation, he received the "cold
shoulder" from other coworkers and did not receive appropriate training
from Torres. This evidence does not,
however, refute the uncontroverted evidence that King displayed performance
deficiencies while working under Torres's supervision. It also does not demonstrate a causal link
between the complaints and King's dismissal.
At best, it shows that Torres and Greer had different training styles
and that Torres was more critical of King's performance issues than
Enneking. The trial court properly
concluded that the lack of any nonspeculative evidence linking the complaints
to the dismissal defeats King's retaliation claim.
King's second cause of action
alleges that he was wrongfully terminated in violation of the public policy
embodied in FEHA. The County correctly
observes that section 815, subdivision (a) abolishes common law tort liability
for public entities, including tort liability for wrongful termination in
violation of public policy. (
California (2008) 44 Cal.4th 876, 899-900.)
Miklosy affirmed a judgment of
dismissal after the sustaining of a demurrer, stating that the defendant public
entity could not be liable for wrongful termination in violation of a public
policy based on retaliation. (
King's failure to establish a triable issue of material fact regarding his
retaliation claim under FEHA similarly defeats his wrongful termination
claim.
King's third cause of action alleges
that his probationary employment contract with the County provided that he
would not be terminated for reasons which violate public policy. In addition to the previously discussed
retaliation allegations, King asserts the County violated section 19173,
subdivision (b), which states an employee dismissed or rejected from probation
must be given a written "statement of the reasons for the
rejection." As the County points
out, section 19173 does not create a private right of action or any civil
remedy in damages for its violation.
(See Moradi-Shalal
46 Cal.3d 287, 300 ["The fact that neither the Legislative Analyst nor the
Legislative Counsel observed that the new act created a private right of action
is a strong indication the Legislature never intended to create such a right of
action"].)
King further contends that the
County did not follow certain procedural requirements set forth in the County
personnel rules and the union contract.
Once again, King has not shown that such procedural violations, even if
true, create a private right of action.
Typically, such procedural and due process issues must be raised in an
administrative writ proceeding. (Code
Civ. Proc., § 1094.5; see Mola
Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405, 411
["Mandamus proceedings allow courts to flesh out the issues and factual
components of the dispute, including issues of procedural fairness"];
45 Cal.App.4th 1716, 1729-1730 [administrative mandamus review under section
1094.5 extends to the question of whether there was a "fair administrative
hearing"].) In the absence of any
triable issues of material fact, the trial court appropriately granted the
County's motion for summary judgment.
DISPOSITION
The judgment is affirmed. The County shall recover its costs on appeal.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
>
Rebecca S. Riley, Judge
Superior Court County of Ventura
______________________________
Law Office of Allen
Broslovsky, Allen Broslovsky for Plaintiff and Appellant.
Wisotsky, Procter &
Shyer, Alan E. Wisotsky, Jeffrey Held for Defendant and Respondent.
references are to the Government Code unless otherwise stated.
nature of Greer's comments, we refer to the fire
marshal by her title and identify other
Department personnel only where necessary.
The record reflects that Greer made derogatory comments about a number
of Department employees, but for the most part, their identities are irrelevant
to the resolution of this appeal.
