KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

Tentative Ruling

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Department 16D Oral Argument Request Line at (916) 874-3056 by 4:00 p.m. the court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message (a) identifying themselves as the party requesting oral argument; (b) indicating the specific matter/motion for which they are requesting oral argument; and (c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

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The Department 16D Zoom Link is https://saccourt-cagov.zoomgov.com/j/16146506749 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

*** EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G STREET IN SACRAMENTO, CA 95814. ALL HEARINGS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT 16D OF THE NEW COURTHOUSE. ***

TENTATIVE RULING: Defendants California Department of Corrections and Rehabilitation (“CDCR”) motion for summary judgment, or in the alternative, summary adjudication is ruled upon as follows.

In this employment action, Plaintiff Joshua Kuzmicz alleges that he was employed by Defendant as a Correctional Counselor II. Plaintiff alleges that he filed administrative complaints of discrimination and illegal conduct by Associate Warden and EEO Coordinator Chad Parry and that these complaints caused Defendant to retaliate against him based on a false memorandum written by Parry. Plaintiff alleges causes of action for retaliation in violation of FEHA, failure to prevent retaliation, violation of Labor Code § 1102.5, violation of Government Code § 8547.8(c), and for injunctive relief.

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process. First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) The papers filed in response to a defendant's motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, quoting Code Civ. Proc. § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advanced Group 400 (2001) 25 Cal.4th 763, 780- 781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, at 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code Civ. Proc. § 437c(p); see, generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is found in CRC Rule 3.1350(b), which mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure §437c(f)(1) provides in its entirety:

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for [punitive] damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for [punitive] damages, or an issue of duty.

(Code Civ. Proc. § 437c(f)(1) [brackets added].)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

Finally, before turning to the specific issues raised by this motion and the oppositions, the Court reminds the parties of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (See, Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).)

Defendant’s separate statement includes the following facts which it asserts are undisputed. Plaintiff interviewed for a promotion to Correctional Counselor II Supervisor in December 2021 before a three person panel. (UMF 1) Plaintiff provided the names of two people he worked with in the past as personal references. (UMF 2) Plaintiff’s immediate past supervisor, Jayme Juneau, expressed reservations as to Plaintiff’s suitability for the promotion. (UMF 3) The panel identified Plaintiff as the second best candidate and recommended him for promotion in the event that Travis Campbell, the individual recommended for promotion, declined the promotion. (UMF 4) Plaintiff filed a Merit Issue Complaint regarding the promotion process on January 31, 2022.

The Complaint was found “invalid” on April 20, 2022 and advised Plaintiff that he received “unfavorable reference checks”. (UMF 5) Plaintiff asked Juneau whether she gave him a negative reference. Juneau denied that she gave Plaintiff a negative reference and states that it was “delusional” for Plaintiff to think people were trying to keep him from being promoted. Plaintiff was frustrated because he knew that the other two references gave him positive references. (UMF 8)

On July 6, 2022, Plaintiff sent an email to Parry, on which he blind-copied Warden Robertson about a June 6, 2022 conversation. In the email, Plaintiff made numerous negative allegations against Parry regarding the promotion process. Parry instructed Plaintiff to submit the allegations to Defendant’s Investigative Services Unit (“ISU-IA”) which Plaintiff did the next day. (UMF 9) Warden Robertson instructed ISU-IA to obtain memoranda from Campbell and Parry. (UMF 13) On July 8, 2022, Campbell submitted a memorandum to ISU-IA describing his conversations about promotion with Plaintiff. (UM 15) Parry also submitted a memorandum to ISU-IA describing his conversations with Plaintiff about the promotion process and denied that he ever told Campbell that he would hire him regardless of the interview or that he gave Campbell any advantage. (UMF 16) After reviewing the memoranda, Warden Robertson determined that no further action was needed. (UMF 17)

On October 24, 2022, Parry submitted a memorandum to Warden Robertson regarding

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

a conversation he had with Plaintiff on October 19, 2022, in which Plaintiff discussed accessing hiring documents and confronting Juneau regarding her reference. (UMF 19) Warden Robertson instructed ISU-IA to prepare a Form 989 requesting an Internal Affairs investigation. (UMF 20) ISU-IA requested a memorandum from Juneau regarding a conversation with Plaintiff regarding a “negative reference check” and also a forensic examination of Plaintiff’s email account. (UMF 21) On November 9, 2022, a forensic examination report (“FAST” report) stated that unauthorized personnel documents were located in Plaintiff’s email account, including the reference checks that Plaintiff’s personal references provided, and that Plaintiff received confidential materials in 2018 which he forwarded to another employee. (UMF 22) On October 25, 2022, Juneau submitted a memorandum to ISU-IA describing her conversation with Plaintiff.

She indicated that Plaintiff “accused” her of providing a purposefully negative reference and sabotaging his ability to promote. (UMF 23) On January 25, 2023, the Central Intake Unit (“CIU”) of the Office of Internal Affairs (“OIA”) advised that the matter had been returned to the Hiring Authority, the Warden, for Direct Action. (UMF 27) Stephen Smith took over as acting Warden in January 2023, after Warden Robertson retired. Warden Smith sustained two allegations of misconduct against Plaintiff for unauthorized possession of confidential hiring documents and discourteous conduct with respect to Juneau. (UMF 28) On May 11, 2023, Plaintiff was served with a Notice of Adverse Action (“NOAA”) indicating his wages would be reduced 10% for two years. (UMF 30)

After a Skelly hearing, Associate Warden Dave Barneburg recommended the adverse action proceed and Warden Smith sustained the discipline. (UMF 31) Robertson, Parry, Williams, Coppin and Smith believed that reference checks were confidential and could not be disclosed to the candidate without specific authorization, even after the hiring process was concluded. (UMF 32) Plaintiff appealed the NOAA to the State Personnel Board (“SPB”) and the Administrative Law Judge (“ALJ”) proposed a decision revoking the NOAA based on insufficient evidence that Plaintiff knowingly violated any policy or duty. The SPB adopted the ALJ’s proposed decision on March 11, 2024, which dismissed both allegations of misconduct against Plaintiff and ordered back pay to Plaintiff with interest. (UMF 33)

On May 20, 2022, Plaintiff submitted a verified discrimination complaint to the DFEH. On June 9, 2022, Plaintiff submitted an EEOC Charge of Discrimination. (UMF 34) Parry and Robertson were unaware of Plaintiff’s DFEH and EEOC complaints until Plaintiff filed the instant lawsuit. (UMF 35) The ISU-IA investigators were unaware of Plaintiff’s DFEH and EEOC complaints during their investigation of Plaintiff. (UMF 36) In September 2022, Defendant set a document preservation letter to Parry, Robertson, and others without stating the reasons for preserving documents related to Plaintiff. (UMF 37) Warden Smith had no knowledge of Plaintiff’s DEFH and EEOC complaints

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

until after Plaintiff filed his appeal with the SPB. (UMF 38)

The Court will address Defendant’s arguments in the order presented in the moving papers.

First, Third and Fourth Causes of Action (FEHA Retaliation, Labor Code § 1102.5 and Government Code § 8547.8)

Defendant’s motion for summary adjudication as to Plaintiff’s first, third and fourth causes of action is denied.

This motion is premised on UMFs 1-33. Defendant argues that all of Plaintiff’s retaliation-based causes of action fail because it had legitimate, non-retaliatory reasons for investigating and disciplining Plaintiff due to his behavior towards Juneau and because reference checks are confidential.

The California Supreme Court has held that to establish an action for discrimination in violation of FEHA, “the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1220.) The burden of showing a prima facie claim in a FEHA action is not “onerous” and the evidence necessary to meet the burden is “minimal.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 149.)

A “burden-shifting” analysis applies in evaluating FEHA claims for discrimination and retaliation in employment. (Guz, supra, 24 Cal.4th at 354; Dudley v. Dept. of Transp. (2001) 90 Cal.App.4th 255, 261; Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042) Under the three-part test developed in McDonnell Douglas Corp. v. Green (1972) 411 U.S. 792: '(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.” (Morgan v. Regents of University of California (2001) 88 Cal. App. 4th 52, 68.)

“The McDonnell Douglas framework is modified in the summary judgment context. In a summary judgment motion . . . 'the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

legitimate, nondiscriminatory factors.' [Citation.]” (Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 861; accord Jones v. Dep't of Corrections (2007) 152 Cal.App.4th 1367, 1379.) “If the employer meets its initial burden, the burden shifts to the employee to 'demonstrate a triable issue by producing substantial evidence that the employer's stated reasons were . . . pretextual, . . . such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination . . . .” (Serri, supra, at 861.)

To that end, where the employer meets its burden to show that it had legitimate, nondiscriminatory reasons for the adverse employment action, the employee has the burden to show pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. [citations omitted].” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 140.) The employee is required to produce “substantial responsive evidence that the employer’s showing was untrue or pretextual” thereby raising at least an inference of discrimination.” (Hersant v.

California Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005.) “The employee cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” (Id. at 1002.) The employee must “set forth specific facts demonstrating such weaknesses, implausibilities, incoherencies, or contradictions in the employer’s proffered legitimate reasons that a reasonable factfinder could rationally find them unworthy of credence.” (Cucuzza v.

City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.)

A retaliation claim under Labor Code section 1102.5 requires the plaintiff to first 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.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.) The employer must then establish, “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.” (Id.) “Under [Labor Code] section 1102.6, the employer must instead show ‘the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.’” (Vatalaro v.

County of Sacramento (2022) 79 Cal.App.5th 367, 379.) The employee need not establish that the employer's stated reasons are pretextual. (Lawson, supra, 12 Cal.5th at 715-716.) “Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by the statute if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.” (Id. at 716.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

The California Whistleblower Protection Act (“WPA”) was enacted to protect the right of state employees “to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution.” (State Bd. Of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 967-968.) Government Code § 8547.8(c) provides that any person who engages in certain retaliatory acts against “a state employee or applicant for state employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party.” Case law has indicated that, like claims under Labor Code § 1102.5, the McDonnell Douglas test does not apply to claims under the WPA. (Scheer v. Regents of University of California (2022) 76 Cal. App. 5th 904, 916.)

Primarily, the Court concludes that Defendant failed to meet its initial burden. This is true because the motion directed to these three causes of action is premised on the assumption that the McDonnell Douglas test applies to all three causes of action. As discussed above, it does not apply to the third or fourth causes of action for violations of Labor Code § 1102.5 and the WPA. Having failed to engage in the proper analysis, Defendant has failed to show that it is entitled to judgment as a matter of law on these three causes of action. Therefore, the burden never shifted to Plaintiff to demonstrate the existence of a triable issue of material fact. On this basis alone, the motion is denied.

However, even if Defendant had met its initial burden to demonstrate that it was entitled to judgment as a matter of law on these three causes of action, Plaintiff has met his burden to demonstrate the existence of a triable issue of material fact. To that end, Defendant’s UMF 32 states that Robertson, Parry, Williams, Coppin and Smith believed that reference checks were confidential and could not be disclosed to the candidate without specific authorization, even after the hiring process was concluded.

However, Plaintiff presents evidence that these individuals did not know if reference checks were confidential, did not know if there was any policy indicating that they were confidential, that none of them researched whether reference checks were confidential, and that the reference forms themselves did not state they were confidential. (Plf’s response to UMF 32.) Coppin did not believe that possession of reference checks violated any policy of Defendant. (Plf.’s Exh. 10 at 279:8-15 [Coppin Depo.].)

In addition, Captains Paul Vasquez and Jeremy Lacy, who had sat on numerous promotion panels, testified that the reference checks were not confidential. (Plf’s Exh. 27 at 1242:13-1243:20 and 1272:2-1273:13.) Plaintiff has disputed UMF 32. According to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Id. at 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1].)

In Insalaco

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, the trial court found that although the moving party “enumerated purportedly undisputed material facts in its separate statement, some of which [opposing party] disputed” those facts were not material and granted summary judgment. (Id. at 521.) However, the appellate court reversed, concluding that summary judgment was improper “[b]ecause a dispute as to any one of these facts means there was a dispute as to a concededly material fact.” (Id. at 522.) Thus, because Plaintiff disputed UMF 32, the motion must be denied.

While the Court need not proceed any further, Plaintiff has presented extensive evidence which raise triable issues of material facts as to whether Defendant’s stated reasons for investigating and disciplining Plaintiff were pretextual. Plaintiff filed discrimination complaints based on race against Defendant and Parry on February 24, 2022. The DFEH provided the complaint to Defendant on May 24, 2022 and requested documents. Plaintiff complained of Parry’s alleged fraud, coercion, extortion and quid pro quo on July 6-7, 2022.

On September 20, 2022, Defendant received the Notice of Case Closure/Right to Sue, naming Parry from DFEH. On October 19, 2022, Plaintiff had a discussion with Mr. Parry in which they discussed the DFEH complaint and criminal allegations against Parry. (Plaintiff’s Material Facts [“PMF”] 36). Parry submitted his complaint against Plaintiff on October 24, 2022, which was based on numerous false statements, including that Plaintiff was provided the hiring package from a friend at “Headquarters”, and “accost[ed]” Juneau. (PMF 36, 37).

The investigation into Plaintiff began the next day. No one was questioned during Plaintiff’s investigation, including Juneau, Plaintiff, Parry, or the two individuals who provided Plaintiff reference checks. Plaintiff also provides evidence that Defendant continued with the investigation even though it was aware that Parry knew he was under investigation by Internal Affairs, that Parry’s memorandum was based on inaccurate information and even though investigator Williams questioned Parry’s credibility. (PMF 54, 56) Defendant ultimately disciplined Plaintiff based on the information that was acknowledged to be false. (PMF 79) Reliance on inaccurate or false information to discipline an employee violates Defendant’s policy. (PMF 80) An employer’s Warden Robertson acknowledged that Plaintiff was disciplined using inaccurate facts and Investigator Williams does not believe that Plaintiff was treated fairly in the investigation and discipline process. (PMF 86) Here, the proximity of time between Plaintiff’s discussion of the DFEH complaint with Parry, and the start of the investigation process premised on Parry’s memorandum, coupled with the evidence that the investigation and ultimate discipline was admittedly premised on incorrect information in violation of Defendant’s own policy raises a triable issue of material fact as to whether the investigation and discipline of Plaintiff was pretextual.

The Court need not analyze each cause of action separately because even if the more onerous McDonnell Douglas burden shifting applied to all three (and as

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

discussed above, it does not,) Plaintiff has met that burden. The sum and substance of the evidence presented by Plaintiff constitutes specific facts for purpose of the instant motion which demonstrating weaknesses, implausibilities, incoherencies, or contradictions in Defendant’s proffered legitimate reason which could allow a reasonable trier of fact to find them unworthy of credence. On this additional basis, the motion is denied.

First Cause of Action (FEHA retaliation)

Defendant’s motion for summary adjudication is denied.

Defendant argues that the instant cause of action fails because Plaintiff cannot demonstrate a causal connection between any protected activity and an adverse employment action.

The motion is premised on UMFs 1-39. Thus, even if Defendant met its initial burden, the motion must be denied because as discussed above, Plaintiff demonstrated the existence of a triable issue of material fact as to UMF 32.

Although the Court need not proceed any further, Plaintiff has demonstrated additional triable issues of material fact. UMF 34 states that Plaintiff submitted a discrimination complaint to the DFEH on May 20, 2022. Plaintiff’s evidence shows that he filed the discrimination complaint with the DFEH on February 24, 2022. (Plf.’s Exh. 29.) This additional dispute is another basis upon which the motion must be denied. Again, Defendant cannot now assert that such discrepancies are immaterial given that its inclusion of facts in it separate statement concedes their materiality. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243; Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506.)

Further, UMF 35 states that neither Parry nor Warden Robertson were aware of Plaintiff’s DFEH or EEOC complaints before the instant lawsuit was filed. However, Plaintiff presents evidence that he discussed the DFEH complaint with Parry on October 19, 2022. (PMF 36) Plaintiff also presents evidence that Parry was the EEO Coordinator and that pursuant to Defendant’s Operation Manual, Parry is made aware of all discrimination complaints. (Plf.’s Exh. 1 at 17:1-8; 43:3-22 [Parry Depo].) This additional dispute is another basis upon which the motion must be denied.

Defendant’s UMF 38 states that Warden Smith had no knowledge of “any prior complaints” and did not learn about them until Plaintiff filed his SPB Appeal. However, prior to the SPB Appeal, Smith reviewed all of the investigation documents including

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

Parry’s October 24, 2022 memorandum which referenced Plaintiff’s DFEH complaint. (Plf.’s Exh. 18 at 92:4-14; 94:7-11; 94:22-95:6; 156:25-157:8; 184:11-23 [Smith Depo].)

Each of these disputed UMFs constitutes a separate and independent ground warranting denial of Defendant’s motion in this regard.

Second Cause of Action (Failure to Prevent Retaliation)

Defendant’s motion for summary adjudication is denied.

The motion is premised on UMFs 1-39. Thus, even if Defendant met its initial burden, the motion must be denied because as discussed above, Plaintiff demonstrated the existence of a triable issue of material fact as to UMF 32, 34, 35 and 38.

Third and Fourth Causes of Action (Labor Code § 1102.5 and WPA)

Defendant’s motion for summary adjudication is denied.

The motion is premised on UMFs 1-39. Thus, even if Defendant met its initial burden, the motion must be denied because as discussed above, Plaintiff demonstrated the existence of a triable issue of material fact as to UMF 32, 34, 35 and 38.

Finally, given that Defendant failed to meet its burden with respect to all causes of action, Defendant has necessarily failed to meet its burden with respect to the motion for summary judgment. The failure to dispose of all causes of action necessarily precludes summary judgment. Summary judgment may be granted where it is shown that the “action has no merit” and summary judgment lies only where the opponent has no case at all. (Code Civ. Proc. § 437c(c); 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1215.)

Defendant’s motion is denied in its entirety.

Plaintiff’s evidentiary objections are overruled.

Defendant’s evidentiary objections are overruled. The Court notes that Defendant objected to certain evidence on the basis that the evidence is privileged and/or protected attorney work product. Defendant references its pending motion for protective order, which the Court recently advanced to September 17, 2026. As of August 7, 2026, which is the date Plaintiff filed its opposition papers (including the evidence which Defendant now objects to), Defendant had not filed any motion for protective order,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV007860: KUZMICZ vs CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION 08/27/2026 Hearing on Motion of Summary Judgment/Adjudication against Joshua Kuzmicz in Department 16D

much less obtained any order indicating that that such evidence is privileged or subject to work product protection such that Plaintiff could not utilized such evidence in opposition. As the Court explained in its recent order of August 19, 2026 denying Defendant’s ex parte request for an order shortening time, Defendant was not diligent in pursuing its motion for protective order, which it did not file until August 13, 2026, despite knowing since March 14, 2026, that Plaintiff disagreed with Defendants’ claims of privilege and inadvertent waiver. Thus, the Court finds Defendant’s belatedly filed and still pending motion to be irrelevant for purposes of ruling upon Defendant’s current objections. The Court, at this point, has made no finding of privilege or work product.

Defendant’s request for judicial notice in support of reply is denied. The material was not relevant to the Court’s ruling.

This minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.