Soraya Vela v. Santa Clara County Office of Education

The operative verified second amended complaint (SAC) was filed in August 2024. The SAC alleges four causes of action: (1) retaliation (Lab. Code, § 1102.5); (2) retaliation (Lab. Code, § 6310); (3) retaliation (Gov. Code, § 12940, subds. (h), (i)); and (4) failure to prevent discrimination (Gov. Code, § 12940, subd. (k)). There are no exhibits attached to the SAC. SCCOE demurred to the SAC’s second, third, and fourth causes of action, which was heard by the court (Judge Chung) in January 2025. In its January 14, 2025 order, the court sustained the demurrer to all three challenged causes of action without further leave to amend. That left the first cause of action for retaliation in violation of Labor Code section 1102.5 as the only remaining cause of action. The court takes judicial notice of that order on its own motion. (Evid. Code, § 452, subd. (d).)

SCCOE answered the SAC in August 2025. Vela filed a petition for writ of mandate challenging both demurrer orders. The petition was summarily denied by the Court of Appeal.

At issue is SCCOE’s motion for summary judgment, opposed by Plaintiff. The motion was advanced to July 14 so that it could be heard before trial.

REQUEST FOR JUDICIAL NOTICE

SCCOE requests judicial notice of four documents in its three-volume compendium of supporting evidence. “Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code § 450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307.) Requests for judicial notice must be filed separately and the request could be denied on this basis alone. (Cal. Rules of Court, rule 3.1113(l).)

The four documents are submitted as exhibits A-D in the compendium of evidence. They consist of three court filings from this case and a copy of a Senate Bill. The request is denied as unnecessary and irrelevant to the material issues before the court. The court already considers the operative pleading in ruling on a motion for summary judgment. And the court has already taken judicial notice of the January 14, 2025 demurrer order.

LEGAL STANDARDS—SUMMARY JUDGMENT

The pleadings limit the issues presented for summary judgment or summary adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (Laabs); Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 (Nieto).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)

A motion for summary judgment or adjudication shall be granted only if it completely disposes of an entire cause of action, an affirmative defense, a claim for damages, or an “issue of duty.” (See Code Civ. Proc., § 437c, subd. (f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 (McClasky); Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action.” “The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.)

While the same standards of admissibility govern both sides’ supporting evidence, the opposition evidence is liberally construed while the moving party’s evidence is strictly construed. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).)

A reply “shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.” (Code Civ. Proc., § 437c, subd. (b)(4); Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

Labor Code section 1102.5

The sole remaining cause of action in the SAC alleges a violation of Labor Code section 1102.5, subdivision (b). (Unspecified statutory references are to the Labor Code.) Labor Code section 1102.5, subdivision (b) states. “An employer, or any person acting on behalf of the employer, shall not retaliate 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.”

Labor Code section 1102.6 states, “In a civil action or administrative proceeding 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 14

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.”

“Section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. 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 (Lawson).) “The first prong of the statute also tells us what plaintiffs must prove to establish liability, and by what evidentiary standard. Specifically, plaintiffs must show, by a preponderance of the evidence, that whistleblowing was a contributing factor in the employer’s decision. This is a complete set of instructions for the presentation and evaluation of evidence in section 1102.5 cases.” (Id. at p. 712.) A “contributing factor” is “any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.” (Id. at p. 714.)

“There is no language in section 1102.6 exempting certain claims for relief. By its terms, once the employee has met its burden to show that a protected disclosure was a ‘contributing factor’ in an adverse employment action, the statute simply shifts the burden to the employer. Thus, a straightforward reading of section 1102.6 is that if the jury finds the employer satisfies its second-step burden in a civil case, the employee is barred from all relief.” (Veverka v. Dept. of Veterans Affairs (2024) 102 Cal.App.5th 162, 1174 (Veverka), internal citations omitted, citing Vatalaro v.

County of Sacramento (2022) 79 Cal.App.5th 367, 387- 388 [affirming summary judgment for employer that met its burden under 1102.6 to make a same-decision showing].) “An interpretation of section 1102.6 that precludes liability where an employer has met its burden at the second step of the statute’s framework is consistent with its plain language and gives effect to every phrase and word, including ‘alleged’ and ‘contributing factor.’” (Id. at p. 176.)

“[T]he protections of section 1102.5[, subdivision] (b) apply only where the disclosing employee ‘has reasonable cause to believe that the information discloses a [legal] violation.’ (Ibid.) This clause imposes a requirement of objective reasonableness and excludes from whistleblower protection disclosures that involve only disagreements over discretionary decisions, policy choices, interpersonal dynamics, or other nonactionable issues. Moreover, an employer accused of retaliation in violation of section 1102.5[, subdivision] (b) can rebut the charge by ‘demonstrat[ing] by clear and convincing evidence that the alleged [retaliatory] action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.’ (§ 1102.6.)” (People ex rel.

Garcia- Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, 734 (Kolla’s).) “[S]ection 1102.5 claims are evaluated on the basis of a distinct evidentiary standard and framework set by statute.” (Id. at p. 732.)

DISCUSSION

SCCOE moves for summary judgment on the basis that “there is no triable issue of material fact” as to the one remaining cause of action for violation of Labor Code section 1102.5, subdivision (b). (See SCCOE’s notice of motion.) The notice also lists three “issues” for summary adjudication in the alternative that are not issues of duty and are not bases for summary adjudication; they are simply arguments for summary judgment of the one remaining cause of action. SCCOE argues that “there is no evidence that Plaintiff engaged in activity protected by Labor Code section 1102.5, or that any such activity contributed to her release from employment. Furthermore, even if Plaintiff did meet her burden, the undisputed evidence establishes that SCCOE had a legitimate, independent reason to release Plaintiff from her probationary employment.” (Memorandum at p. 14:17-20.)

The first cause of action is expressly based on an email Vela sent to coworkers on February 17, 2022. (See SAC at ¶¶ 53-59.) Vela alleges this email was the reason for her termination in violation of Labor Code section 1102.5, subdivision (b). (See SAC at ¶ 59 [“Ms. Vela’s email on or about 17 February 2022 was the reason SCCOE decided to terminate her employment.”]) Vela is bound by her verified allegations on summary judgment.

In sustaining the demurrer to the SAC’s second through fourth causes of action, the court found that this email (which is quoted in full on page 9 of the SAC) “does not indicate that Vela has any complaint about any safety issues; instead, it merely requests information from co-workers and then informs them of ways in which they can address any needs that they might have, including technological and ergonomic needs. The February 17 email does not articulate any of the safety issues alleged in the SAC and cannot fairly be construed as a report of health or safety issues in the workplace.” (Jan. 14, 2025 order at p. 6:17-22.)

The court further found that “not only does the February 17, 2022 email fail to set forth a complaint of discrimination or health and safety violations, but it also fails to set forth or describe any basis for a potential complaint of discrimination or health and safety violations. Again, the email merely requests information from coworkers and then informs them of ways in which they can ‘open a ticket with Technology to request your docking station [and other devices]’ or ‘open a ticket with Risk Management Department to request an ergonomic assessment,’ and then describes what that ergonomic assessment will provide them. (SAC, p. 9:14-28.)

No act of discrimination or safety violation is called out in this email. . . . Ultimately the court finds (as it did in its prior ruling) that because the February 17, 2022 email does not complain or warn against anything specific, it cannot be considered protected activity under Ferrick, supra; and it is likewise an insufficient basis for a claim of ‘anticipatory retaliation’ under Lujan.” (Id. at pp. 7:17-8:6.)

In sustaining the demurrer to the third cause of action without further leave to amend, the court also found that the February 17, 2022 email “is not and cannot be reasonabl[y] construed as an employee’s communication to the employer that sufficiently conveys the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner,” and that the email “is far too vague and non-specific (and was also never intended to be communicated to the employer).” (Id. at p. 9:14-16 and p. 10:8-9.)

The court agrees with and adopts Judge Chung’s findings regarding the February 17, 2022 email included in the SAC. The specific language of the February 17, 2022 email, and the express allegation in the SAC that the email was the reason for Vela’s termination in violation of Labor Code section 1102.5, controls over the more general allegations in the SAC and in the first cause of action. “Where a pleading includes a general allegation, such as an 16

allegation of an ultimate fact, as well as specific allegations that add details or explanatory facts, it is possible that a conflict or inconsistency will exist between the more general allegation and the specific allegations.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235.) “To handle these contradictions, California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation.” (Id. at pp. 1235–1236.) “Under this principle, it is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient.” (Id. at p. 1236.)

The specific language of the February 17, 2022 email Vela sent to coworkers, included in the body of the SAC, contradicts more conclusory allegations in the first cause of action that Vela “engaged in activity protected by Labor Code section 1102.5 by reporting to superiors and Human Resources”; that she “made a formal complaint to management or Human Resources about the suspected violations of law”; was engaged in “reporting unlawful activities”; was attempting to uphold “an employee’s rights to demand basic workplace protections”; was “terminated because she was engaged in protected activity”; and that the February 17, 2022 email “reflected that Plaintiff had been collecting concerns from coworkers about unlawful working conditions.” (See SAC at ¶¶ 52-59.) It also contradicts similar general allegations in the SAC incorporated by reference into the first cause of action.

Because Vela is bound by her pleading on summary judgment, specifically the text of the February 17, 2022 email, she cannot show by a preponderance of the evidence that by sending the email she engaged in “protected activity” that was a contributing factor to her termination. (Lab. Code, § 1102.6.)

Vela’s argument in opposition that the February 17, 2022 email reveals violations of state or federal statutes, or activity Vela reasonably believed revealed to be such, is unpersuasive. Her further argument that the evidence submitted with her opposition raises triable issues as to reasonableness of her beliefs is also unpersuasive. As SCCOE points out in its reply, that evidence improperly attempts to expand what is alleged in the first cause of action.

“A moving party seeking summary judgment or adjudication is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled, but for which no motion to amend or supplement the pleading was brought, prior to the hearing on the dispositive motion.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444.) “Declarations in opposition to a motion for summary judgment are not a substitute for amending the pleadings to raise additional theories of liability. ‘[S]ummary judgment cannot be denied on a ground not raised by the pleadings.’” (Nativi v.

Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 290, internal citation omitted; see also California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3 [“[a] party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings,” and “[e]vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings”].) Vela is bound by her choice to base her verified first cause of action on the February 17, 2022 email as being the reason for her termination.

The “protections of section 1102.5(b) apply only where the disclosing employee ‘has reasonable cause to believe that the information discloses a [legal] violation.’” (Kolla’s, supra, 17

14 Cal.5th at p. 734.) Section 1102.5 requires “objective reasonableness” (Id. at p. 734) and “does not protect employees who do not believe or who unreasonably believe that the information they are disclosing shows a violation of the law.” (Id. at p. 731.) Vela has not met that standard.

One appellate opinion has suggested that a determination of the reasonableness of an employee’s belief should generally be left to a jury. (See Contreras v. Green Thumb Produce, Inc. (2025) 116 Cal.App.5th 1251, 1261 (Contreras).) But that ignores the Supreme Court’s instruction in Kolla’s that section 1102.5(b) “imposes a requirement of objective reasonableness.” And the facts here are distinguishable from those in Contreras, where the employee claimed (albeit incorrectly) that there was a specific legal violation.

Here, the February 17, 2022 email does not disclose information; it requests information from coworkers. It cannot reasonably be construed as disclosing information identifying or suggesting a legal violation. Nor can it be reasonably construed as an act suggesting to SCCOE that Vela may disclose such information. Under an objective standard of reasonableness, sending the February 17, 2022 email cannot be construed as protected activity under Labor Code section 1102.5, subdivision (b).

SCCOE’s motion for summary judgment is granted on the basis that Vela did not make the required preliminary showing of protected activity by a preponderance of the evidence. Because summary judgment is granted on that basis, the burden never shifts to SCCOE to show by clear and convincing evidence that it would have terminated Vela for legitimate, independent reasons even if she had not engaged in protected activity. The court therefore does not reach the parties’ arguments and evidence on that point. SCCOE’s argument that the first cause of action is preempted by the Public Employment Relations Board (PERB) is forfeited for two reasons: (1) it was not asserted in the answer; and (2) it was not raised until the reply brief related to the instant motion. (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 807-810.)

OBJECTIONS TO EVIDENCE

Vela objected to portions of exhibits and declarations submitted by SCCOE in support of its motion. Because the motion for summary judgment has been granted on the basis that Vela did not make the required preliminary showing of protected activity by a preponderance of the evidence, the court does not rule on these objections. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).) The objections also do not fully comply with California Rules of Court, rule 3.1354.

CONCLUSION

SCCOE’s request for judicial notice is denied.

SCCOE’s motion for summary judgment on the SAC’s one remaining cause of action for retaliation in violation of Labor Code section 1102.5 is granted. SCCOE is ordered to submit a proposed judgment no later than August 14, 2026.

The August 10, 2026, trial date, and all other future court dates, are vacated.

The court will prepare the order.

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