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Ortiz v. Lopez

February 1, 2010


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


Defendant City of Orange Cove ("Defendant" or the "City") filed the instant motion for summary judgment, or summary adjudication in the alternative, on November 13, 2009. The matter was heard on January 15, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. H. Ty Kharazi appeared on behalf of Plaintiff Odilon Ortiz ("Plaintiff"). James McBrearty appeared on behalf of Defendant.


Plaintiff filed this wrongful termination action against Defendants Victor Lopez and the City of Orange Cove on January 25, 2008, in the Fresno County Superior Court. Defendants removed the action to this Court on March 12, 2008, on the basis of this Court's federal question jurisdiction.

On March 6, 2009, the Court granted the parties' stipulation to dismiss Victor Lopez with prejudice.

Defendant filed the instant motion for summary judgment, or summary adjudication in the alternative, on November 13, 2009. Plaintiff opposed the motion on December 31, 2009, and Defendant filed a reply on January 11, 2010.*fn1


In his verified complaint, Plaintiff alleges that he was hired by Defendants as an interim finance director in August 2005. On November 15, 2005, the position became permanent. Throughout his employment, he received no criticism and his work was often praised.

After finding evidence of embezzlement by a city employee, Plaintiff began an internal audit of the City. The audit resulted in the discovery of many discrepancies, including discrepancies related to Defendant Lopez, who was the Mayor during all relevant times, and his sons, as well as issues with Defendant Lopez's compensation. Plaintiff also discovered issues related to bidding for supplies and services, noncompliance of independent contractors and the City's failure to bill certain individuals for utility services. When Plaintiff informed his supervisor, William Little, of the issues, he was generally told not to take any action.

In February 2007, Defendant Lopez spoke to Plaintiff and objected to Plaintiff's request for a revenue/expense projection for a Cinco de Mayo celebration. Defendant Lopez questioned Plaintiff's contacts with Counsel Member Glenda Hill and "reminded" Plaintiff that he only needed two votes from the City Council to dismiss Plaintiff. Defendant Lopez denied that his statement was a threat and confirmed that Plaintiff was doing a good job.

While continuing to perform his job, Plaintiff discovered evidence of key employees incorrectly charging the City for personal expenses and failing to refund money spent. Some of the identified employees were relatives of Defendant Lopez, including his two sons. Plaintiff was told not to take any corrective action and alleges that Defendants prevented him from investigating individuals who were stealing money from the City.

Plaintiff began to set up meetings with various vendors to investigate the improper return of merchandise. On June 27, 2007, prior to conducting his meetings, Plaintiff was terminated. He alleges that he was terminated in retaliation for reporting illegal activities.

On November 26, 2007, he filed a tort claim with the City pursuant to California Government Code section 950, et seq. The claim was rejected on December 12, 2007.

Based on these facts, Plaintiff alleges causes of action for (1) wrongful termination in violation of public policy; (2) wrongful termination for whistleblowing, in violation of California Labor Code section 1102.5; (3) misrepresentation; (4) violation of 42 U.S.C. section 1983; (5) defamation; (6) breach of the implied covenant of good faith and fair dealing; (7) negligence and (8) intentional infliction of emotional distress.

As Defendant Lopez has been dismissed, the parties agree that the causes of action for misrepresentation, defamation and intentional infliction of emotional distress are moot.


Plaintiff was employed by the City, a public entity, as Finance Director beginning in August 2005. Verified Complaint, ¶¶ 2, 4 and 11. When he was hired, he was hired as "interim" Finance Director. Declaration of Odilon Ortiz ("Ortiz Dec."), ¶ 4. Months later, he was promoted to "permanent" Finance Director. Ortiz Dec., ¶ 4. He did not have an employment contract with the City. Deposition of Odilon Ortiz ("Ortiz Dep."), p. 56 at 3-5.

City Ordinance 2.08.090(B) provides that the City Treasurer "shall hold office at and during the pleasure of the City Council." Declaration of Alan Bengyel ("Bengyel Dec."), ¶ 4. City Ordinance 2.40.040(C) provides that the office of City Treasurer is exempt from the civil service system and serves at the Council's pleasure. Bengyel Dec., ¶ 6.

Plaintiff was terminated from his position on June 27, 2007. Verified Complaint, ¶ 29. Prior to the Council vote on his termination, he was afforded a public hearing. Ortiz Dep., p. 61. Plaintiff spoke at the hearing on his own behalf, as did some members of the public. Ortiz Dep., p. 61. The City voted 3-1 to terminate Plaintiff. Ortiz Dep., p. 62. Plaintiff was told he was terminated as a result of his perceived bad attitude and negative leadership. Ortiz Dep., p. 382.

Plaintiff's complaint does not allege that he made any complaint under California Labor Code section 1102.5 with the California Labor Commissioner. Verified Complaint, ¶ 33.


Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.Celotex Corp. v. Catrett, 477 U.S. 317 (1986). "If the party moving for summary judgment meets its initial burden of identifying for the court those portions of the material on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production shifts and "the non moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Electric Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed.R.Civ.P. 56(e)). As to the specific facts offered by the nonmoving party, the court does not weigh conflicting evidence, but draws all inferences in the light most favorable to the nonmoving party. Id. at 630-31.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e);Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine ...

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