Arriola v. City of Oakland CA1/4

Opinion

Filed 8/26/26 Arriola v. City of Oakland CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ORLANDO ARRIOLA, Plaintiff and Appellant, A174302 v. (Alameda County CITY OF OAKLAND et al., Super. Ct. No. 24CV067515) Defendants and Respondents.

In this Fair Employment and Housing Act (FEHA) action, Plaintiff Orlando Arriola appeals from the trial court’s sustaining of a general demurrer to his second amended complaint without leave to amend. Arriola alleged that the defendants in the case, including respondent City of Oakland, retaliated against him because of his engagement in FEHA- protected activities when, as a City of Oakland Fire Marshal, he investigated into and reported about certain matters, testified before a grand jury, and would not tell his superior the content of his testimony. He appeals on the ground that he brought valid FEHA claims and that he deserves the opportunity to at least conduct discovery. Arriola does not show that the City took any adverse actions against him because he engaged in FEHA-protected activities. Accordingly, we will affirm.

1 I. BACKGROUND A. Arriola’s Second Amended Complaint Arriola sued the City of Oakland (City), the Oakland Fire Department (OFD), and alleged City employee Reginald Freeman in March 2024. In December 2024, after the court had sustained two demurrers with at least partial leave to amend, Arriola filed a second amended complaint (SAC) against the defendants.1 In the SAC, Arriola pleaded two causes of action: (1) retaliation in violation of Government Code section 12940, subdivision (h) of FEHA, and (2) failure to prevent retaliation in violation of Government Code section 12940, subdivision (k) of FEHA. The gist of Arriola’s SAC is that he was pushed out of his Fire Marshal position with the OFD after preparing an investigative report about certain OFD matters, testifying before a grand jury about the OFD, and refusing to tell his superior about the content of his testimony. Specifically, Arriola alleged as follows. In April 2019, he began working as an OFD Fire Marshal. He was “well aware that he was an elder Latino male but accepted the position,” and knew his CalPERS plan would vest in 2024. In May 2019, Arriola “initiated an administrative investigation of allegations of harassment, incompetence, insubordination, dereliction of duty, and failure to follow OFD policies for an Assistant Fire Marshal which resulted in a favorable result for OFD.” Also, at some point, the Fire Chief requested that Arriola “provide a report for information regarding division weaknesses, opportunities for improvement, support & attention needs of 1 The City contends that the court’s judgment does not extend to Freeman because he purportedly was never served with the complaint and summons, and that the “Oakland Fire Department” is a City department and not a separate entity.

2 the facility and its staff members.” According to Arriola, “the report correlated the 2020 FPB Audit Report recommendations and included staffing needs, Fire Protection Engineers . . . attrition and budget constraints, state mandated inspections . . . objectives, and records management issues.” Also, “the report referenced newly developed measures which were utilized thereafter as key performance indicators for the City Auditor’s Report.” Arriola further alleged that in December 2021, he was summoned to appear before a grand jury about the OFD. He complied with the summons and appeared, “providing [a] verbal report and . . . supporting documentation” to the grand jury. “Thereafter, Fire Chief through the Chief- of-Staff attempted order [Arriola] to provide a detailed report of his presentation before the Grand Jury, which [Arriola] had to decline given the confidentiality he had as a witness as well as his agreement with the Alameda County District Attorney’s Office.” Arriola alleged that his “testimony and statement created a perilous situation that was met with no avail” and that, “[d]ue to [his] participation in the Grand Jury, on January 7, 2022, [Freeman] sent [him] a letter stating that his employment release would be on February 4, 2022.” The letter stated “ostentatiously,” “ ‘Your service to the City of Oakland has been greatly appreciated and I regret that this action is necessary.’ ” It further stated, “ ‘the City is going in a different direction.’ ” Arriola alleged that “after this vague yet disturbing statement, Freeman presented [Arriola] with an ultimatum to either resign or be fired . . . .” At the time, Arriola “was the oldest and highest ranking sworn Latino officer in the [OFD] thus [he] was settled in the belief he was being discriminated against because he was reached fifty-eight (58) years of age;

3 on an eligible path to be vested in the CalPERS retirement system in 2024.” Arriola “was the only elder Latino Male with high-ranking seniority which caused the disparate treatment that [Arriola] endured in Defendants’ hostile work environment.” Arriola also alleged that he opted to resign “with hopes and confirmation that he could receive another job” with the City. He was placed on over ten eligibility lists, but “to no avail for well over a year.” He was then sent a letter stating that he was being removed from the eligibility list. According to Arriola, “included in the letter was false reasoning for the resignation, attempted termination, and unjustified removal from the eligibility list, because the removal was based upon the same Enhancement Plan that [Arriola] assisted with through the investigation, he was told to collaborate on for the OFD Audit Report. [¶] The most appalling of the coerced resigning termination was that CITY reasoned that it was proper to remove [Arriola] from the eligibility list due to allegedly unsatisfactory service which was an extreme falsehood made by CITY. [¶] It became noticeably clear that [Arriola] was a successful employee that gave genuine statements for OFD which was then used to wrongfully terminate him.” In first cause of action, Arriola alleged that it was “abundantly clear that OFD retaliated against [Arriola] after his whistleblowing investigation which began in May 2019 due to the discovery of the violations, policies and erred conduct of the Defendants.” He further alleged that his purported whistleblower report and his grand jury testimony were “protected activity.” In his other cause of action, Arriola alleged that the City and the OFD failed to enforce policies to prevent retaliation.

4 B. The Court’s Sustaining of the City’s Demurrer Without Leave To Amend The City filed a demurrer to the SAC. It argued Arriola had failed, again, to state a claim because the SAC did not sufficiently allege any protected activity, adverse acts, or a causal link between the two. The trial court sustained the City’s demurrer without leave to amend. It noted that Arriola’s SAC “is virtually identical to the First Amended Complaint . . . .” The court concluded that, although Arriola argued that he provided “ ‘extremely specific’ ” actions that are considered protected activity, his allegation that he conducted “an administrative investigation as a ‘whistleblower claim’ is conclusory and insufficient.” The court concluded that, because Arriola had not remedied the facial deficiencies with the SAC despite two chances to amend, giving him a further opportunity to amend would be futile. II. DISCUSSION A. Legal Standards 1. FEHA “The express purpose of FEHA is to provide effective remedies that will eliminate discriminatory practices in the workplace (§ 12920), and its provisions ‘are to be construed broadly and liberally’ to accomplish that purpose.” (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 626.) Accordingly, under FEHA, it is generally an unlawful employment practice for an employer, “because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person,” to, among other things, discharge a person from employment or discriminate against a 5 person in the terms, conditions, or privileges of employment. (Gov. Code, § 12940, subd. (a).) Arriola’s SAC contains two causes of action based on two related FEHA provisions. They are that, subject to exceptions not applicable here, it is an unlawful employment practice for an employer to (1) “discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under [FEHA]” (Gov. Code, § 12940, subd. (h)), or (2) “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring” (id., subd. (k)). Under FEHA, “[e]mployees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472.) 2. General Demurrers “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. ‘ “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]’ . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment . . . .” ’ [Citations.] ‘ “The burden of proving such reasonable 6 possibility is squarely on the plaintiff.” ’ [Citation.] Our examination of the complaint is de novo.” (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) B. Analysis Arriola first argues that the trial court erred in sustaining the City’s demurrer because “there are definitely valid claims in this matter.” In support, he characterizes his allegations as that “Respondents intentionally retaliated against Arriola because he provided a report of information regarding division weaknesses, opportunities for improvement and support and attention needs of the facility. Furthermore, the retaliation increased when Mr. Arriola adhered to being called a witness for a grand jury regarding his report. Most notably, the retaliation worsened when [Arriola] refused to share his testimony with Respondents, which he has the legal right to do as there is no law or protocol that requires Mr. Arriola share confidential statements with anyone but those within the Court. This caused an eruption of retaliatory acts.” Arriola contends his allegations show he “engaged in a protected activity and the subsequent immoral acts as articulated herein related to said protected activity.” Further, “the protected activity occurred in close proximity to the adverse action” and there is “an abundance of evidence . . . that undoubtedly demonstrates a highly probable retaliatory motive. Thus a causal connection between the protective activity and adverse employment action exists in this matter.” Arriola’s claim of error is unpersuasive. He simply repeats what the trial court—and we—find to be conclusory and insufficient contentions in his SAC of the City’s alleged retaliation for his “whistleblower” activities, without ever alleging how the City’s actions violated FEHA.

7 Arriola alleged in his SAC that he was Latino and 58 years old, and that he believed he was discriminated against because of these characteristics, but he does not base his causes of action on any City action related to these characteristics. Rather, he bases his two SAC causes of action on allegations that the City retaliated against him because of his alleged whistleblower activities. These allegations do not reference any FEHA protected activities, i.e., any activities related to “race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person.” (Gov. Code, § 12940, subd. (a).) Instead, Arriola himself contends he wrote “a report of information regarding division weaknesses, opportunities for improvement and support and attention needs of the facility,” that “the retaliation increased when he adhered to being called a witness for a grand jury regarding his report,” and that it worsened when he “refused to share his testimony with Respondents.” None of these alleged activities involve protected activities. Therefore, his appeal fails.2 Arriola also argues that because he has stated valid retaliation claims against defendants, “discovery should be conducted in this case.” Further, according to Arriola, “dismissal of the case is certainly premature given that 2 Arriola’s contentions are more akin to a claim of retaliation for whistleblower activity under Labor Code section 1102.5, subdivision (b), but he did not base any of his claims on that statute or argue its application below, nor does he argue its application on appeal. Therefore, we do not discuss it further, or express any view on whether such a claim would have been viable.

8 no discovery was completed in this case. It will be injustice if this case is not reversed for the ability to at the very least conduct discovery for the case.” Arriola offers no legal authority for his propositions. To the extent he intends these as a claim that he should be allowed another opportunity to amend his complaint allegations, he has not met his burden of showing there is a reasonable probability that he can cure the SAC’s defects by amendment. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Therefore, we reject these arguments as well. III. DISPOSITION The judgment is affirmed. The City is awarded costs of appeal.

STREETER, J.

WE CONCUR:

BROWN, P. J. GOLDMAN, J.