Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC033380, Patrick T. Madden, Judge.
Henry J. Josefsberg for Plaintiff and Appellant.
Office of the Long Beach City Attorney, Robert E. Shannon, City Attorney, and Randall C. Fudge, Deputy City Attorney, for Defendant and Respondent.
JACKSON, J.
INTRODUCTION
Plaintiff Earl Hobbs appeals from a summary judgment entered against him in his wrongful termination lawsuit against defendant City of Long Beach (City). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The City employed plaintiff, beginning in 1981 as a staff auditor, and then as a deputy city auditor. He worked under city auditor Gary Burroughs (Burroughs) and assistant city auditor J.C. Squires (Squires). Plaintiff was a certified public accountant and, unrelated to his employment, an attorney licensed to practice law in California.
As deputy city auditor, plaintiff investigated the collection of utility user’s tax (UUT) by the five cellular telephone companies serving the City: Sprint, AT&T, Verizon, Pac Bell, and Cingular. He assembled considerable information on the billing and tax practices of the companies. Plaintiff reported to Burroughs that the UUT collection practices of three of the companies were in violation of state, federal and municipal law, resulting in under-collection of the tax.
Burroughs sent letters to the companies demanding that they bring their practices into compliance with the law. The companies did not do so. As a result, the city auditor’s office began a compliance audit of one of the companies, AT&T. Plaintiff headed the audit team.
Also, Squires began working to resolve the collection issues with a consortium of other similarly affected cities, including the City of Los Angeles. They formed a task force to negotiate settlements with the noncomplying companies. During this period, Verizon sent plaintiff a response to a letter he had sent in June 2000. In the response, Verizon provided plaintiff with documents about a class action settlement with the City of Los Angeles for over-collecting the UUT and a related letter written by counsel for Verizon. In the course of the consortium negotiation activities, plaintiff came to believe that the City of Los Angeles did not plan to require two of the noncomplying companies to pay the taxes they owed for a two-year period.
In April 2002, in his capacity as a private attorney, plaintiff filed a putative class action lawsuit against the City of Los Angeles, AT&T, and Verizon on behalf of Diana Sanchez and other citizens of the City of Los Angeles who were cellular customers of Sprint, Nextel and Cingular (the Sanchez suit). The complaint alleged, inter alia, that AT&T and Verizon had under-collected UUT which resulted in the class members paying more tax than AT&T and Verizon customers. It alleged further that the City of Los Angeles failed to enforce its UUT law and collect the unpaid taxes from the cellular telephone companies. Plaintiff was pursuing substantial attorney’s fees for his representation of the class; the complaint included, as part of the relief sought, a request for attorney’s fees equal to 25 percent of the common fund recovered as a result of the lawsuit. One effect of the lawsuit was to halt the task force negotiations on behalf of the consortium of affected cities.
Diana M. Sanchez v. City of Los Angeles, AT&T Wireless, Verizon Wireless (Super. Ct. Los Angeles County, No. BC272529) originally filed on April 23, 2002, with first amended complaint filed on August 7, 2002.
Plaintiff then told Burroughs and Squires that he had filed the Sanchez suit. Burroughs told plaintiff that he should cease serving as the plaintiffs’ attorney in the Sanchez suit. Plaintiff refused. Subsequently, in June 2002, acting on behalf of his clients in the Sanchez suit, plaintiff filed opposition to the City of Los Angeles’s demurrer.
On June 20, 2002, Burroughs gave plaintiff written notice that his employment was terminated. In the notice, Burroughs offered to permit plaintiff to continue employment on special assignment until September 30, given that improved retirement benefits were to become effective in August. Plaintiff accepted the offer in writing. On August 16, 2002, Burroughs terminated plaintiff’s employment, effective immediately, after learning that plaintiff was continuing to pursue the Sanchez suit.
In the notice, Burroughs stated: “For the reasons explained to you in several recent conversations, I have lost confidence in your ability to perform your duties as a Deputy City Auditor. I am therefore terminating your employment with this office.”
In the August 16 notice, Burroughs stated: “It has come to my attention that you have, without authorization, taken confidential audit documents from the City Auditor’s office and referenced them in a lawsuit filed against the City of Los Angeles and others. This serious misconduct has caused me to reconsider the effective date of your termination and to conclude that your employment with my office must terminate immediately.”
Plaintiff filed suit against City and other defendants in December 2002. The operative complaint here is the second amended complaint filed in April 2004. Plaintiff alleged four causes of action: first, violation of Labor Code section 1102 (section 1102) because City fired plaintiff for his political activity in filing the Sanchez suit; second, violation of Labor Code section 1102.5 (section 1102.5) because City fired plaintiff for being a whistleblower by filing the Sanchez suit; third, common law wrongful termination; and fourth, breach of contract, alleging that his acceptance of Burroughs’s offer to permit plaintiff’s employment to continue to September 30, 2002 constituted a contract.
Plaintiff moved to amend the complaint to add causes of action for retaliatory termination in violation of plaintiff’s First Amendment rights under 42 United States Code section 1983 (section 1983) and malicious prosecution pursuant to section 1983. The trial court rejected the first and second amended versions. When plaintiff filed the third amended version, he also filed an “amended” notice of motion in contravention of the court’s prior order prohibiting further briefing. The court ordered the motion be taken off calendar.
In June 2004, City filed a motion for summary judgment. In its concurrently-filed separate statement of undisputed facts, based in part on Burroughs’s deposition testimony, City explained that plaintiff was fired for his conduct in bringing and maintaining the Sanchez suit. To summarize City’s related facts statements, City was working with the City of Los Angeles and other cities in a consortium regarding the telephone companies’ UUT practices. (Statement 14.) As City’s employee, plaintiff conducted an investigation and audit of UUT practices by the companies on behalf of City. Then, as a private attorney, he used the information gathered to file a class action lawsuit for his private clients against the City of Los Angeles with regard to the practices, the Sanchez suit. (Statement 15.) The information was actually the “work product from” the City Auditor’s office, and included information which “was confidential[] and not subject to public disclosure.” (Statement 16.) Plaintiff’s action in providing private attorney services to his clients by filing the Sanchez lawsuit “was inconsistent with the position taken by” City and the City of Los Angeles, together with the other cities in the consortium, in their joint efforts to bring the telephone companies’ UUT collection practices into compliance. (Statement 17.) Plaintiff’s action “harmed the reputation of” City with respect to the other cities in the consortium. (Statement 18.) Therefore, “plaintiff was fired as a result of his filing the Sanchez lawsuit and maintaining it.” (Statement 19.) His “final termination... and cut-off from the enhanced retirement benefits was made as a result of the refiling and maintenance of the amended Sanchez lawsuit.” (Statement 20.)
In his deposition, Burroughs explained the reasons for plaintiff’s termination as follows: “Mr. Hobbs was a member of our engagement team, working... with a consortium of cities, including the City of Los Angeles.... And we were basically taking action against various utility companies, telephone companies. [¶] And Mr. Hobbs took the information that he had received while working on our staff, on that engagement and reversed the position, and sued-rather than going after or suing the utility companies, [he] was suing the City of Los Angeles on behalf of a private citizen. [¶] So I viewed it as a substantial breach of conflict of interest, or professional standards within our office, a violation or conflict of interest, and it was... a very serious breach, and I tried to express that to him.”
The trial court granted City’s motion for summary judgment on February 26, 2009 and entered judgment against plaintiff. As to the first cause of action, the court determined that an attorney filing a lawsuit for substantial attorney’s fees did not constitute political activity protected from adverse employment action under section 1102, and the cause of action failed as a matter of law. On the second cause of action, the court determined that, pursuant to section 1102.5, subdivision (b), a protected whistleblower was defined as an employee who reported his employer’s violation of law to a government or law enforcement agency, and plaintiff had not made any such report imputing City. As to the third cause of action for common law wrongful termination, the court ruled that, as a matter of law, such a cause of action cannot stand against a public entity, pursuant to Miklosy v. Regents of University of California (2008) 44 Cal.4th 876 at pages 899 through 900. Plaintiff did not oppose City’s challenge to the third cause of action and, on appeal, concedes the judgment as to it. For the fourth cause of action, the court determined that, as a matter of law, plaintiff was an at-will public employee pursuant to the Long Beach City Charter (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1693) and such a statutory condition of public employment could not, as a matter of law, be superseded by a conflicting contract (Miller v. State of California (1977) 18 Cal.3d 808, 814).
DISCUSSION
Code of Civil Procedure section 437c, subdivision (c), requires the trial court to grant summary judgment in the action if the papers submitted on the motion show that no triable issue exists as to a material fact and the moving party is entitled to judgment as a matter of law, “that is, there is no issue requiring a trial as to any fact that is necessary under the pleadings and, ultimately, the law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
We review the trial court’s entry of summary judgment de novo and independently determine if summary judgment is merited based on the record before us. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We must view the evidence and inferences from it in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
A. Section 1102: Political Activity Protection
Plaintiff maintains that, as counsel in the Sanchez suit, he sought to vindicate public policy-lawful collection of taxes, which is a political activity, and the City terminated his employment in retaliation for these activities, in violation of section 1102. Pursuant to section 1102, an employer may not discharge or threaten to discharge an employee for the purpose of causing the employee to follow or refrain from following “any particular course or line of political action or political activity.” We disagree with plaintiff’s contention that the actions for which he was terminated constituted such “political activity.” (Ibid.)
Section 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”
Before otherwise discussing reasons plaintiff’s termination was not for engaging in “political activity,” we should first point out that plaintiff oversimplifies the issue by focusing on City’s statement that he was “fired as a result of his filing the Sanchez lawsuit and maintaining it.” Plaintiff is correct that the statement appears in City’s statement of undisputed facts submitted in support of the summary judgment motion. (See Statements 19 and 20.) But plaintiff ignores the context provided by City’s related statements of fact and Burroughs’s deposition statements on which they were based.
By virtue of his employment as Deputy City Auditor, plaintiff was part of City’s team working with the City of Los Angeles and the other consortium cities to take action against certain cellular telephone companies with respect to their UUT collection practices. (See Statement 14.) Then plaintiff used the considerable information he received and developed as work product through his employment to take, in effect, the reverse position, in pursuit of his private professional endeavors as an attorney. (See Statements 15, 16 and 17.) That is, in the Sanchez suit, plaintiff provided legal services on behalf of private individuals to sue one of the cities, the City of Los Angeles, for damages and substantial attorney’s fees with respect to its collection of UUTs through the companies. As he testified in his deposition, Burroughs considered, and tried to express to plaintiff, that his private attorney activities with respect to the Sanchez suit were a very serious breach of professional standards within the office of the City Auditor and presented a substantial conflict of interest with plaintiff’s position as Deputy City Auditor involved with the consortium’s efforts. When plaintiff took action against one of the consortium cities, it would be reasonable to infer that City’s reputation with the consortium cities was harmed. (See Statement 18.) Indeed, the consortium efforts were significantly disrupted, signaling a loss of trust in City’s leadership role.
When the basis for plaintiff’s termination is viewed in context, there is little, if anything, to support plaintiff’s contention that he was terminated for engaging in “political activity.” The legal authority plaintiff cites does not support the conclusion that plaintiff was fired for engaging in “political activity,” as prohibited by section 1102.
Plaintiff mistakenly relies on Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458 as authority that engaging in litigation as an attorney representing parties for remuneration constitutes political activity. In GLSA, the plaintiffs were engaged in political activity, in that their litigation was a part of their espousal of a cause and seeking its acceptance; they were litigating allegations of unlawful employer discrimination in employment decisions on the basis of sexual orientation in violation of Labor Code sections 1101 and 1102. (Id. at pp. 487-488; see also Mallard v. Boring (1960) 182 Cal.App.2d 390, 395.) Thus, under the GLSA holding, plaintiff’s clients could be deemed to be engaging in political activity. Nothing in GLSA indicated, however, that the holding that the plaintiffs were engaged in political activity has any application to the lawyers representing them.
Plaintiff cites N.A.A.C.P. v. Button (1963) 371 U.S. 415 [83 S.Ct. 328, 9 L.Ed.2d 405] as authority that political activity includes not only the litigants, but also their lawyers, when they “associate for the purpose of assisting persons who seek legal redress for infringements of their constitutionally guaranteed and other rights.” (Id. at p. 428.) At issue was the constitutionality of a state statute regulating the legal profession by making it a criminal violation to advise a person that his legal rights have been infringed and refer him to a particular attorney or group of attorneys for assistance or to render legal assistance to a person so referred. The lawyers whose conduct was at issue were attorneys on the staff of the plaintiff NAACP. They were part of an organization which advocated civil rights for Black people and encouraged members of the Black community to use them to litigate in order to protect their civil rights. (Id. at pp. 434-436.) The court ruled that the statute unconstitutionally restricted the organization’s freedom of association and expression guaranteed by the First Amendment. (Id. at p. 437.)
Rather than speaking of “political activity,” the Supreme Court refers to the exercise of First Amendment rights such as “vigorous advocacy... against governmental intrusion.” (N.A.A.C.P. v. Button, supra, 371 U.S. at p. 429.) The Court explains that “[i]n the context of NAACP objectives, litigation... is a means for achieving the lawful objectives of equality of treatment by all government.... It is thus a form of political expression.” (Ibid.)
Plaintiff’s role differs significantly from the NAACP lawyers. He was not providing litigation services as a staff member of an organization that was espousing the cause of lawful tax collection practices. Rather, he was providing litigation services as a private attorney seeking substantial compensation for his services. The NAACP principles do not apply to such conduct.
The remainder of plaintiff’s arguments also fail, in that he was not a plaintiff in the Sanchez suit seeking to vindicate public policy, but rather only a private individual providing attorney services to the plaintiffs in expectation of being compensated for his services. Plaintiff quotes Van Atta v. Scott (1980) 27 Cal.3d 424 that Code of Civil Procedure section 526a “provides ‘a general citizen remedy for controlling illegal governmental activity.’” (Van Atta, supra, at p. 447.) Section 526a empowers only a citizen who is a resident in the county, town or city being sued or by a corporation who is liable to pay a tax therein to seek such remedy. It is the citizen or corporation, not attorneys representing them, in such a taxpayer lawsuit who may be engaged in political activity.
Code of Civil Procedure section 526a provides in pertinent part: “An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein.”
Plaintiff makes a tenuous and meritless argument that Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 supports his contention that his conduct constituted political activity. As plaintiff asserts, Tameny held that, regardless of the employee’s “at-will” status, a common law cause of action for wrongful termination exists when termination of the employee contravenes public policy. (Id. at p. 178.) In Miklosy v. Regents of University of California, supra, 44 Cal.4th 876, however, the California Supreme Court later held that Government Code “section 815 bars Tameny actions against public entities,” and no such common law cause of action lies against a public employer. (Id. at pp. 899-900.)
In sum, plaintiff has presented no authority that supports his contention that his actions as a private attorney in filing and maintaining the Sanchez suit for remuneration constitute “political activity” protected by section 1102. Even if in other contexts and for other purposes, a private attorney might be engaging in “political activity” in representing his or her clients for compensation, plaintiff’s actions here do not implicate that principle. Accordingly, we conclude that summary judgment was properly granted as to plaintiff’s first cause of action for violation of section 1102. (Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
B. Section 1102.5: Whistleblower Protection
Plaintiff contends that the trial court erred in ruling that his representation of the plaintiffs in the Sanchez suit did not constitute whistleblower conduct protected under section 1102.5. We disagree.
The whistleblower protection afforded by section 1102.5, subdivision (b), provides that “[a]n employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” To interpret the statute, we look to “the apparent purpose and intention of the lawmakers.” (Mallard v. Boring, supra, 182 Cal.App.2d at p. 395.) The Legislature expressed its intent in enacting subdivision (b) of section 1102.5 as follows: “The Legislature finds and declares that it is the public policy of the State of California to encourage employees to notify an appropriate government or law enforcement agency when they have reason to believe their employer is violating laws enacted for the protection of corporate shareholders, investors, employees, and the general public.” (Stats. 2003, ch. 484, §1.) Section 1102.5, subdivision (b), therefore, applies solely to situations in which an employee reports alleged violations of his employer.
Plaintiff alleged that City terminated his employment in retaliation for his representing the plaintiffs in the Sanchez lawsuit. The lawsuit, however, alleged that the City of Los Angeles violated the law and was unrelated to plaintiff’s employer, the City of Long Beach. Plaintiff did not provide any evidence that his employer terminated his employment in retaliation for plaintiff reporting to a government or law enforcement agency that the City violated a state or federal law. Thus, we conclude that the whistleblower protection afforded by section 1102.5, subdivision (b), does not apply, and, as a matter of law, the City is entitled to judgment as to plaintiff’s second cause of action. (Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
C. Violation of First Amendment Rights
Plaintiff’s third cause of action was for common law wrongful termination. Plaintiff agreed with the trial court that, pursuant to Miklosy v. Regents of University of California, supra, 44 Cal.4th 876, no common law wrongful termination claims may be made against employers which are public entities. (Id. at pp. 899-900.) On appeal, plaintiff concedes the judgment as to his third cause of action.
In his third cause of action, plaintiff also alleged that, in discharging him, City violated the well-established public policies embodied in the California Constitution, article I, section 1 (beginning “All people are by nature free and independent...”) and Business and Professions Code section 6068 (statutory duties of attorneys). Plaintiff does not address these issues on appeal. Further, plaintiff concedes judgment as to his third cause of action. We deem the issues as waived. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
Nevertheless, inasmuch as the trial court addressed the issue in its written decision, plaintiff contends that his filing and prosecution of the Sanchez suit was protected speech under the First Amendment, based on section 1983, in that the suit was about a matter of public concern. We agree with the trial court’s determination that the complaint did not include a properly pled cause of action under the First Amendment or section 1983.
Furthermore, as previously noted, plaintiff concedes that there was no merit to his third cause of action. Accordingly, we decline to address plaintiff’s contentions regarding his First Amendment rights under section 1983. We conclude that, as a matter of law, City is entitled to judgment as to plaintiff’s third cause of action and, accordingly, the trial court was required to grant summary judgment. (Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
D. Breach of Contract
Plaintiff contends that summary judgment was not proper as to his breach of contract cause of action. As we previously noted, plaintiff alleged that Burroughs’s letter in June 2002 terminating plaintiff’s employment included an offer to continue plaintiff’s employment through September. According to plaintiff, when he accepted the offer, it became an enforceable contract and City breached it when Burroughs subsequently terminated plaintiff’s employment effective immediately in August. We agree with the trial court’s determination that, as a matter of law, no such cause of action can stand.
Plaintiff acknowledges that, pursuant to the Long Beach City Charter, “[t]he City Auditor shall appoint all employees in his office, for whose acts he shall be responsible. Such appointees shall serve at the pleasure of the City Auditor.” (Long Beach City Charter, § 802.) Plaintiff makes the semantic argument that the provision constituted City’s authorization of Burroughs to do what he pleased with respect to employees, specifically “to act to his pleasure by entering” into the contract on behalf of City.
Plaintiff’s argument is not supported by law. In Hill v. City of Long Beach, supra, 33 Cal.App.4th 1684, the court interpreted a similar Long Beach City Charter provision. The court stated that “[s]erving at pleasure means one is an at-will employee who can be fired without cause.” (Id. at p. 1693.) It is well-established that the terms and conditions of public employment, including the duration of employment, are governed by statute, not by contract. (Miller v. State of California, supra, 18 Cal.3d at pp. 813-814.) “Indeed, ‘[the] statutory provisions controlling the terms and conditions of civil service employment cannot be circumvented by purported contracts in conflict therewith.’ [Citation.]” (Id. at p. 814.)
Any contract purporting to alter plaintiff’s at-will status by setting a specific date for termination of employment would be in conflict with the City Charter. The City Auditor had no authority to enter into any such contract. As a matter of law, there could be no contract as plaintiff alleged and, therefore, no cause of action for breach of it. (Miller v. State of California, supra, 18 Cal.3d at pp. 813-814.)
Plaintiff also asserts that the City Auditor had the authority to enter into contracts for labor in an amount not to exceed $50,000 and the breached contract which was for less than that amount. The alleged contract was, however, an employment contract, not a contract for labor by an independent contractor. For the reasons previously discussed, as a matter of law, there could be no such employment contract and, therefore, no cause of action for breach of it. (Miller v. State of California, supra, 18 Cal.3d at pp. 813-814.) The trial court properly granted summary judgment as to that cause of action. (Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.