Frahm vs. City of Huntington Beach

Re MSJ/A concerning Plaintiff Robert Bowden ROA 216 – P’s Memo. Of Pts. & Auth. in Opposition ROA 217 – P’s Sep. Statement ROA 218 – P’s Evidence in Support of Opposition – Volume 1 of 2 ROA 219 – P’s Evidence in Support of Opposition – Volume 2 of 2 ROA 220 – Supplemental Declaration of Jason L. Oliver in Opposition

Re MSJ/A concerning Plaintiff Frank Gallant ROA 222 – P’s Memo. Of Pts. & Auth. in Opposition ROA 223 – P’s Sep. Statement ROA 224 – P’s Evidence in Support of Opposition – Volume 1 ROA 225 – P’s Evidence in Support of Opposition – Volume 2

ROA 226 – Supplemental Declaration of Jason L. Oliver in Opposition

Here, in addition to filing the 15 documents listed above conditionally under seal, Plaintiff filed 15 redacted documents also on 4/10/26. For the most part, the redacted documents appear to correspond to the unredacted documents filed conditionally under seal. The exception appears to be with the Supplemental Declarations of Jason L. Oliver. It appears that Plaintiffs intended to file a copy of the supplemental declaration as to each plaintiff but neglected to change the captions before filing to reflect such.

In any case, this apparent clerical error appears to be of no moment. The supplemental declarations appear to be duplicative. Each of the Supplemental Declarations of Jason L Oliver attach Exhibit 157. The redacted version of the supplemental declaration redacts specific portions of Exhibit 157. (See ROA 188 [redacted], ROA 208 [redacted]. ROA 214 [unredacted], ROA 220 [unredacted], ROA 226 [unredacted].)

A record cannot be filed under seal without a court order. (Cal. Rules Ct., rule 2.551(a).) To seal a record, the moving party must file a motion for such relief, along with a memorandum and a declaration containing facts sufficient to justify the sealing. (Cal. Rules Ct., rule 2.551(b)(1).) The party must also lodge a copy of the record unless good cause exists for not lodging it or the record has previously been lodged by a party not intending to file the motion. (Cal. Rules Ct., Rule 2.551(b)(4).)

California Rules of Court, rule 2.550(d) provides: “The court may order that a record be filed under seal only if it expressly finds facts that establish the following: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.

(Cal. Rules Ct., Rule 2.550(d); McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 988.) These findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. (See NBC Subsidiary (KNBC– TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217- 1218; Huffy Corp. v. Superior Court (2003) 112 Cal.App.4th 97, 104; People v. Jackson (2005) 128 Cal.App.4th 1009, 1026–27 [finding that in determining whether to seal records, courts must weigh constitutional requirements for disclosure against such factors as privacy rights].)

A sealing order must (a) specifically state facts supporting the above findings and (b) be narrowly tailored (i.e. it should direct sealing of only those documents and pages that contain material that needs to be placed under seal; all other portions of each document or page must remain in the public file. (Cal. Rules Ct., rule 2.550(e)(1); Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group) ¶ 9:418.1.)

Here, in conclusory form, Plaintiffs simply argue that certain information and materials referenced in support of Plaintiffs’ Oppositions constitute Confidential Materials or information derived from such. Plaintiffs make no affirmative showing that there is an overriding interest overcoming the right of public access to the record. Plaintiffs instead state in conclusory terms that these documents were produced by Defendant City pursuant to a Pitchess motion and have been designated as “Confidential” pursuant to the stipulated protective order. (ROA 199, ¶ 4.)

While personnel records are within the zone of privacy (see, e.g., El Dorado Sav. & Loan Ass’n v. Superior Court (1987) 190 Cal.App.3d 342; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, disapproved of on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531), Plaintiffs apparently seek to seal more than the personnel records.

Specifically, Plaintiffs appear to seek an order redacting references to certain alleged supervisors and retaliatory practices set forth in the Plaintiffs’ declarations, separate statements, and briefs. The names of these supervisors as

identified in Plaintiffs’ declarations and the briefs and do not appear to be confidential.

Plaintiffs’ own papers appear to belie their conclusion that the redactions are narrowly tailored and necessary to protect confidential information. For example, Plaintiffs’ publicly filed documents redact some references to a certain Sergeant’s name and practices (see, e.g., ROA 186 [unredacted opp’n brief re Gallant] at 8:26, 10:26, 17:13, 7:16-17) but also, in the unredacted portions, identifies the Seargent by name and describes the Sergeant’s alleged retaliatory practices (ROA 186 [unredacted opp’n brief] at 1:19-28, 4:13-5:3, 5:25-6:5, 6:25-28, 7:8-8:24, 8:26-9:1).

In sum, Plaintiff fails to show that the court should seal any portion of the opposing briefs (i.e., the Memorandum of Points and Authorities) and the separate statements.

And while Defendants filed a “Notice of Non-Opposition to Plaintiff’s Motion to Seal”(ROA 241), “[t]he court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties” (Cal. Rules of Ct., rule 2.551(a)).

Accordingly, the court GRANTS the motion to seal the following documents only: ROA 212, ROA 213, ROA 214, ROA 218, ROA 219, ROA 220, ROA 224, ROA 225, and ROA 226. As to these 9 documents only, the court finds the following: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest.

The court DENIES the motion to seal as to the remaining 6 documents: ROA 210, ROA 211, ROA 216, ROA 217, ROA 222, and ROA 223. These documents will be immediately unsealed.

Plaintiff to give notice.

2. MSJ/As

The motions for summary judgment/adjudication were continued from 5/1/26, to be heard with the motion to seal.

No tentative rulings will be posted for the motions for summary judgment/adjudication before a final ruling on the motion to seal.

If the parties submit on the tentative ruling for the motion to seal before the hearing, the court may issue tentative rulings on the motions for summary judgment/adjudication.

***Update after both sides submitted on tentative ruling for motion to seal:

1. MSJ/MSA – re Robert Bowden

The court DENIES Defendant CITY OF HUNTINGTON BEACH’s (the “City”) Motion for Summary Judgment on the Complaint filed by Plaintiff ROBERT BOWDEN. The court DENIES in part and GRANTS in part the City’s alternative motion for summary adjudication of issues. Specifically, the court DENIES summary adjudication on the first cause of action and GRANTS summary adjudication in favor of the City on the second cause of action (injunctive relief).

The Complaint asserts two causes of action on behalf of all three Plaintiffs against the City, the only named defendant:

1. Retaliation in violation of Labor Code § 1102.5 2. Injunctive relief under Labor Code §§ 1102.61- 1102.62

1st C/A (retaliation)

The first cause of action alleges the City retaliated against the Plaintiffs for disclosing information to the City or Huntington Beach Police Department (“HBPD”) and/or refusing to engage in an unlawful quota. (Compl. ¶ 33.)

The City argues Plaintiff cannot establish by a preponderance of evidence that his protected whistleblowing was a contributing factor to any adverse employment action, given his complaints were stale and the two alleged adverse employment actions identified by Bowden were not retaliatory.

Plaintiff argues triable issues remain as to whether his protected activities were a contributing factor in the adverse employment actions, including among others the denial of his application to become a field training officer (“FTO”).

Labor Code section 1102.5 prohibits retaliation against an employee who discloses or is believed to disclose information to any person with authority to investigate the matter, any public body conducting an invitations, hearing, or inquiry. (See Lab. Code, § 1102.5(b)-(c).) Specifically, subdivision (b) prohibits retaliation “against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”

Subdivision (c) continues, prohibiting retaliation “against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”

Section 1102.6 provides in relevant part,

“In a civil action . . . brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”

“[Labor Code] section 1102.6, and not McDonnell Douglas, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709.) “First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden.

Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.) The plaintiff “does not need to show that the employer’s nonretaliatory reason was pretextual” and satisfies his burden even where legitimate factors also contributed, unless the employer carries its affirmative burden of clear and convincing proof. (Id. at 715-716.)

“An ‘adverse employment action’ is one that ‘materially affects the terms, conditions, or privileges of employment.’” (Doe v. Dept. of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 734 [citing Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051].) “An adverse employment action refers to ‘actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement.’” (Id. [citing Yanowitz, 36 Cal.4th at 1054].)

The court may consider a plaintiff’s allegations collectively. (Yanowitz v. L’Oreal USA, 36 Cal.4th at 1055-1056.) “[T]here is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. [Citation.] Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” (Id. at 1055.)

Here, it is undisputed that Plaintiff Bowden engaged in protected activity, including reporting an illegal quota to his supervisors. (See Def.’s Sep. St. Nos. 2-3; Pltf.’s Sep. St. Nos. 2-3.) It is also undisputed that Plaintiff Bowden was not promoted to the FTO position. (Def.’s Sep. St. Nos. 13- 14; Pltf.’s Sep. St. Nos. 13-14.)

However, there are disputed material facts as to whether Plaintiff Bowden’s formal complaints regarding the “Warzen” quota were a contributing factor in the City’s decisions to deny the FTO position. (See Pltf.’s Add. Sep. St. Nos. 2, 22, 55, 62, 65, 81 [citing among others Bowden Decl. ¶¶ 3, 14, 15, 20; Liberman Depo, at 147:17-148:1].)

As such, the motion for summary judgment is DENIED and the motion for summary adjudication of the first cause of action is likewise DENIED.

2nd C/A (injunctive relief under Lab. Code §§ 1102.61 and 1102.62)

The second cause of action seeks an injunction restraining the City from continuing the unlawful quotas, restraining the City from retaliating against employees who oppose or fail to comply with those quotas, and requiring the City to implement policies and procedures to prevent further retaliation or use of quotas.

The City argues Plaintiff has no standing to seek injunctive relief, as the undisputed facts show Plaintiff Bowden is no longer an employee of the City.

Plaintiff argues that because sections 1102.61 and 1102.62 authorize injunctive relief in “any civil action . . . brought pursuant to Section 1102.5,” and Section 1102.5 prohibits

retaliation “in any former employment,” injunctive relief is necessarily available to former employees.

Labor Code sections 1102.61 and 1102.62 provide for preliminary injunctive relief in proceedings alleging retaliation under section 1102.5. Specifically, Labor Code section 1102.61 provides:

“In any civil action or administrative proceeding brought pursuant to Section 1102.5, an employee may petition the superior court in any county wherein the violation in question is alleged to have occurred, or wherein the person resides or transacts business, for appropriate temporary or preliminary injunctive relief as set forth in Section 1102.62.”

(Lab. Code, § 1102.61.) Section 1102.62, in turn, provides the conditions and considerations for issuing such temporary or preliminary injunctive relief. (Lab. Code, § 1102.62.)

Plaintiff’s argument that injunctive relief is available in all 1102.5 proceedings ignores the plain terms of 1102.61, which provides that “an employee may petition . . . for . . . preliminary injunctive relief.” (Lab. Code, § 1102.61 [emphasis added].) Plaintiff cites no case authority interpreting these statutes to provide a right to preliminary injunctive relief to former employees, and this court is aware of none.

Here, the undisputed facts show Plaintiff Bowden is no longer an employee of Defendant City, as he retired in March 2023. (See Pltf.’s Sep. St. No. 22.) Plaintiff does not require and would not benefit from any provisional or interim remedy.

In sum, the undisputed facts show Plaintiff cannot establish his second cause of action for injunctive relief.

As such, the motion for summary adjudication of the second cause of action is GRANTED.

Evidentiary Objections

The court SUSTAINS the City’s objection No. 8 to Bowden Declaration, as to only the sentences beginning with “Despite being the most qualified candidate . . .” and “I believe I was singled out....”

The court SUSTAINS the City’s objection No. 9 to Bowden Declaration, only as to all but the following: “I met individually with each supervisor involved in the FTO decision,” and “Sgt. Warken, who had final say, refused to answer my questions and could not articulate any suggestions for how I could improve.”

The court SUSTAINS the City’s objection No. 10 to Bowden Declaration as to all but the following: “I was present at most if not all of the meetings involving complaints/discussions about unlawful citation/arrest quotas, and Villegas did not complain.”

The City’s objection nos. 8-10 are otherwise overruled.

The remainder of the objections asserted by the parties are not material to the disposition of this motion. (See Code Civ. Proc., § 437c(q).)

2. MSJ/MSA – Mark Van Meter

The court GRANTS Defendant City’s Motion for Summary Judgment on the claims of Plaintiff Mark Van Meter. The City’s alternative Motion for Summary Adjudication as to Plaintiff Mark Van Meter’s claims are therefore MOOT.

1st C/A (retaliation)

Statute of Limitations

Defendant City argues Plaintiff Van Meter’s claim is barred by the three-year statute of limitations (Code Civ. Proc., § 438(d)), as he did not complain about the quota after being reassigned to patrol in March of 2018 (Def.’s Sep. St. No.

8), which is around the time Plaintiff was subjected to the alleged retaliation (see Def.’s Sep. St. No. 7).

The City meets its initial burden to show Plaintiff cannot establish a valid retaliation claim because any claim based on alleged retaliation in 2017-2018 is time-barred. (See Def.’s Sep. St. Nos. 7-8.)

Delayed Accrual

Plaintiff argues the continuing nature of the retaliation between 2018 and 2023 allows Plaintiff to recover for claims outside the limitations period.

Two branches of accrual rules apply to “continuing wrongs”: the continuing violation doctrine and the theory of continuous accrual. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197.)

The continuing violation doctrine allows a plaintiff to recover for actions that took place during the statute of limitations and misconduct that occurred outside that period provided it is “sufficiently linked” to the conduct within the limitations period. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812.) For example, in a retaliation case, the continuing violation doctrine applies to claims of retaliation reaching beyond the limitations period if the employer’s actions (i) are “sufficiently similar in kind,” (ii) occur with “reasonable frequency,” and (iii) they “have not acquired a degree of permanence.” (See Richards v. CH2M Hill, Inc., 2 Cal.4th at 802, 823.)

The continuing violation doctrine does not apply to a series of denied promotions. (See, e.g., Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104.) In Willis v. City of Carlsbad, the police offer alleged he reported fraud in 2012 and the City retaliated against him by forcing him in January of 2013 to transfer from investigations to patrol. (Id. at 1125- 1126.) In 2013, 2014, and 2015, the plaintiff attempted to transfer back to his role as an investigator; each time, the request for transfer was denied in favor of a less- qualified officer. (Id. at 1126.) The court found each denial became permanent when a different applicant was put in the position. (Id. at 1126; see also, e.g., Cucuzza v. City of Santa

Clara (2002) 104 Cal.App.4th 1031,1043 [the plaintiff’s loss of job duties became permanent when her job title changed]; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402-1404 [finding harassment and retaliation became permanent once plaintiff was served a 10-day suspension ordered by his chief after having endured reprimands, disciplines, transfers, and denials of grievances in response to his discrimination complaints]; cf. Brome v. California Highway Patrol (2020) 44 Cal.App.5th 786, 799 [concluding a jury could find absence of permanence where the supervisors never indicated they had reached an impasse on his claims of harassment, were rejecting his concerns, or that he should leave or give up].)

On the other hand, where the alleged wrong is continual or recurring, the cause of action is subject to continuous accrual for statute of limitations purposes. In other words, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period. (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 395-396 [alleging a series of negligent acts including the handling and use of hazardous substances to their disposal, release, and remediation]; Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1199 [technician wrongfully included charges for “test” copies in monthly bills].)

Plaintiff filed this action on 4/13/23. Plaintiff Van Meter shows no triable issues of material fact regarding the timeliness of his claim.

Events Occurring Before April 2020

Plaintiff submits evidence that in early 2018, Plaintiff Van Meter was coerced into transferring from his position as a traffic investigator to patrol, under threat of an Internal Affairs investigation, and simultaneously removed from the Major Accident Investigation Team (“MAIT”). (Van Meter Decl. ¶¶ 6, 15, 22; Baker Decl. ¶¶ 17-18; see also Pltf.’s Sep. St. No. 2.) These events cannot be part of a continuing violation because the loss of Plaintiff’s positions became permanent in 2018, when Plaintiff transferred to patrol and was formally removed from MAIT. (See Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1043 [the

plaintiff’s loss of job duties became permanent when her job title changed].)

Plaintiff argues the threat of an Internal Affairs investigation lacked a degree of permanence because the threat never resolved. Plaintiff’s evidence demonstrates the threat was made in early 2018 to coerce a certain action by Plaintiff (i.e., transfer), that coercion succeeded in securing a transfer by Plaintiff, and Defendant never mentioned the issue again. (See generally Van Meter Decl.). It appears from the evidence that a factfinder cannot find the potential Internal Affairs investigation materially affected Plaintiff’s employment over two years later, within the limitations (post-April 2020).

Plaintiff also submits evidence the Department denied overtime in 2017-2018 because overtime was reserved for “high ticket writers.” Plaintiff Van Meter admits he stopped asking for those specific shifts because of the predictable result (see, e.g., Pltf.’s Sep. St. No. 2), which shows that adverse employment action gained a degree of permanence shortly thereafter. Any claim for retaliation based on the Department’s refusal to give Plaintiff overtime opportunities accrued at that time.

Lastly, Plaintiff submits evidence that at unspecified dates occurring sometime after 2018, Plaintiff was twice denied a promotion to Field Training Officer (“FTO”). (Van Meter Decl. ¶¶ 57-58). Any claim for retaliation based on these denials accrued when Plaintiff’s application was denied. (See Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1126.)

Because Plaintiff does not show the above-mentioned employment actions took place within the limitations period, Plaintiff does not raise a triable issue of fact as to the timeliness of his retaliation claim.

Events Occurring After April 2023

Plaintiff submits evidence of events occurring during the limitations period (on or after April 2020) but does not show these events to constitute adverse employment actions or within any pattern retaliation.

2020 – 2021 Performance Evaluations. Plaintiff Van Meter’s 2020 annual performance review includes 16 categories for evaluation. He received the highest mark (“meets standard”) on 15 categories, and a single “below standard” mark for one item, Proactive Enforcement. (See Def.’s Ev. [ROA 54], Exh. 4.) Plaintiff’s 2021 annual performance review includes only the highest “meets standard” marks. (See Def.’s Ev. [ROA 54], Exh. 5.) The court finds that a single markdown on the performance evaluation, made over two years after the protected activity, is insufficient to raise triable issues of material fact regarding retaliation or a pattern of retaliation.

To the extent Plaintiff argues that forcing officers to work under those quotas itself constitutes retaliation, Plaintiff conflates the activity resulting in a violation of the law (i.e., working under the quota) with retaliation for failing to do so. Section 1102.5(c) provides an employer must not “retaliate against an employee for refusing to participate in [the] activity.” In other words, using the quota as an evaluation tool in the performance review does not in and of itself constitute retaliation, absent adverse employment actions materially affecting the conditions or terms of employment or opportunity for advancement.

2023 Locker Seizure. Plaintiff does not show or explain how the search of his locker, which admittedly took place four days before his retirement and while he was on disability leave (Opp. at 8:21), materially affected his employment. (See Def.’s Sep. St. No. 14; Pltf.’s Sep. St. No. 14 [not disputing these facts].)

The undisputed facts show the alleged pattern of retaliation ended before the limitations began in April 2020.

2nd C/A (injunctive relief under Lab. Code §§ 1102.61 and 1102.62)

Here, the undisputed facts show Plaintiff Van Meter is no longer employed by Defendant City, as Plaintiff retired on 5/31/23. (See Pltf. Van Meter’s Sep. St. No. 22.) Plaintiff

does not require and would not benefit from any provisional or interim remedy.

In sum, the undisputed facts show Plaintiff Van Meter cannot establish his claim for injunctive relief.

The evidentiary objections asserted by the parties are not material to the disposition of this motion. (See Code Civ. Proc., § 437c(q).)

3. MSJ/MSA – Frank Gallant

The court DENIES the City’s Motion for Summary Judgment on the claims of Plaintiff Frank Gallant. The court DENIES in part and GRANTS in part the City’s alternative motion for summary adjudication of issues. Specifically, the court DENIES summary adjudication on the first cause of action and GRANTS summary adjudication in favor of the City on the second cause of action (injunctive relief).

1st C/A (retaliation)

Here, there are disputed material facts as to whether the Department’s systematic interference with Gallant’s professional training duties and/or threatening increased scrutiny in calculating Motor Training Officer pay constitutes adverse employment actions. (See Gallant Depo. at 148:18-153:17, 150:5-155:16, 163: 13-18.) Given Plaintiff’s evidence that the first of these actions came after Plaintiff complained about the quota (Gallant Decl. ¶ 30, Garrett Depo. at 162:16-163:9, 166:5-167:16), triable issues of material fact also remain regarding whether Gallant’s complaints about the unlawful quotas were a contributing factor in those employment actions.

2nd C/A (injunctive relief under Lab. Code §§ 1102.61 and 1102.62)

Here, the undisputed facts show Plaintiff Frank Gallant is no longer employed by Defendant City, as Plaintiff retired in June of 2023. (See Pltf. Gallant’s Sep. St. No. 5.) Plaintiff

does not require and would not benefit from any provisional or interim remedy.

In sum, the undisputed facts show Plaintiff Gallant cannot establish his claim for injunctive relief.

The evidentiary objections asserted by the parties are not material to the disposition of this motion. (See Code Civ. Proc., § 437c(q).)

Defendant to give notice.

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