APPEAL from a judgment of the Superior Court of Los Angeles County, John Shepard Wiley, Jr., Judge. Affirmed. (Los Angeles County Super. Ct. No. BC332099)
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Plaintiff Steve Mueller, a firefighter with the County of Los Angeles Fire Department (the department), appeals from a judgment entered in favor of the County of Los Angeles (the county) on plaintiff's complaint. The complaint charges the county and its department personnel with conducting a negligent investigation into his complaints of harassment and retaliation, and with breach of the firefighters' union contract with the county, whistleblower retaliation against plaintiff, and intentional infliction of emotional distress.*fn1
The county removed the case to the federal district court, where the cause of the action on plaintiff's federal claim (violation of plaintiff's federal rights under 42 U.S.C. § 1983) was adjudicated against him in a summary judgment and the case was then remanded back to state court for adjudication of plaintiff's remaining causes of action. Those claims were decided in the county's favor in the trial court's order granting the county's motion for summary judgment. It is from the judgment thereafter entered from which the plaintiff now appeals. We find no cause to reverse and therefore the judgment will be affirmed.
a. Allegations in the Complaint
Plaintiff's complaint, which was filed in April 2005, makes the following allegations:
Plaintiff began his employment with the department in August 1991 and thereafter established a reputation as an excellent and dedicated firefighter. In August 2002, plaintiff publicly stated his disapproval that two firefighters in the department, Captains Javier Murrieta and Michael Ponder, had been transferred, and thereafter their temporary replacements, Captains Tom Ray and James Lile, retaliated against plaintiff for his having expressed his opinion. Ray and Lile engaged in a continuing and systematic pattern of harassing plaintiff by, among other things, writing memoranda to him wherein they reprimanded him for inconsequential matters that plaintiff's colleagues would not be documented for, including alleged equipment loss, personnel rotations, and use of inappropriate language. Captain Ray stated to the crew at fire station number 118, where plaintiff was stationed, that it was his and Captain Lile's intent to drive plaintiff out of that fire station.*fn2 Plaintiff filed a grievance with Battalion Chief Peter Sylchak asking that this incident be investigated but no action was taken.
Plaintiff was subjected to derogatory comments and non-verbal gesturing by Ray, Lile and other firefighters. As hostile treatment of plaintiff by supervisory personnel and fellow firefighters escalated, the hostility was ratified by the department by its acts and omissions in failing to timely and effectively respond to plaintiff's grievances.
On October 1, 2002, Battalion Chief Sylchak and Assistant Chief John Nieto presented plaintiff with three options. Plaintiff could (1) remain at station 118 until the situation with Captains Ray and Lile was resolved by their planned move to different assignments, (2) be departmentally transferred to another fire station, or (3) be detailed to another station until the situation at station 118 was resolved. Plaintiff chose the latter option upon the assurance by Assistant Chief Nieto that being detailed to fire station 43 would last only a few weeks until Captains Ray and Lile were transferred out of station 118. However, on October 31, 2002, Battalion Chief Sylchak informed plaintiff that his placement at station 43 would be considered semi-permanent and plaintiff would maintain a permanent position at station 118. In reality though, the department and its agents had no intention of returning plaintiff to station 118.
On November 22, 2002, plaintiff experienced further retaliation when he was sent on a temporary departmental transfer to station 62 to replace a firefighter who was on long term disability. At the same time, plaintiff had his position at station 118 put out to bid and given away. In January 2003, when the position of the firefighter on long term disability became vacant, plaintiff was not given that position. Instead, on January 31, 2003, he was retaliated against again by being sent on a departmental transfer to station 82. After seven months of duty at station 82, plaintiff voluntarily transferred to station 64, but in May 2004, Battalion Chief Sylchak was transferred to plaintiff's battalion station and shift, which constituted continued harassment of plaintiff.
To exhaust his administrative remedies, plaintiff filed four grievances about his hostile work environment, which included the statement by Captain Ray that he would run plaintiff out of station 118, and the series of retaliatory transfers of plaintiff from station to station, because such actions are in violation of the Memorandum of Understanding entered into by the plaintiff's local union and the county. Although resolution of grievances was required to be resolved in ten days, the county took as long as a year to resolve them.
Arbitration was held on the issue of the transfers and the arbitrator, by decision dated June 17 2004, determined the Memorandum of Understanding was violated when plaintiff was sent to station 62.*fn3 The arbitrator ordered that plaintiff be made whole for any loss of credits for promotional purposes that he suffered. However, that remedy does not make plaintiff whole and for that reason plaintiff filed suit seeking compensatory and punitive damages. Plaintiff filed a government claim with the county that was denied.
Plaintiff's first cause of action against the county is the federal claim that has already been resolved. His second cause of action is for damages resulting from negligent investigation of the actions taken against plaintiff by the captains and other firefighters, including the misleading transfers imposed on plaintiff.*fn4
The third cause of action alleges breaches of the collective bargaining agreement between the local union to which plaintiff belongs and the county. The trial court ruled this third cause of action is not viable, and plaintiff does not challenge that ruling in this appeal.
Plaintiff's fourth cause of action is for declaratory relief (a declaration that he has been subjected to retaliatory treatment) and damages. It alleges the county violated the county and state whistleblower protection laws, first by retaliating against him for voicing his opinion about the transfer of Captains Murrieta and Ponder, and then by retaliating against him for filing formal grievances. The fifth cause of action is for intentional infliction of emotional distress.
2. The County's Motion for Summary Judgment
The county filed its motion for summary judgment on November 30, 2006. The county asserted a jurisdictional issue to recovery on the complaint, namely that plaintiff failed to timely comply with the requirement in the Government Claims Act (Gov. Code, § 900 et seq.) that he file a claim with the county. Regarding the individual causes of action, the county asserted plaintiff's second cause of action for damages for negligent investigation of his claims has no legal basis because plaintiff did not allege a specific enactment under which the county would be liable for damages, and if there were such a statute, the county asserted the evidence shows plaintiff's claims of harassing discipline and transfers were actually based on his own performance and behavior issues. Regarding the fourth cause of action which claims violation of the county and state whistleblower protection laws, the county asserted plaintiff had no evidence which would bring him within the parameters of those protection laws. Lastly, the county asserted the fifth cause of action for intentional infliction of emotional distress is barred by workers' compensation law.
Plaintiff's opposition papers asserted plaintiff did timely file his Government Claims Act claim with the county. Regarding his cause of action for negligent investigation of his claims, he argued that the county's own rules and regulations are the enactments that support it, and he disputed the factual accuracy of evidence presented by the county. Additionally, he asserted the facts of this case bring his claim of retaliation within the county and state ...