Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. BC360060, Aurelio Munoz, Judge.
Law Offices of Joseph Y. Avrahamy and Joseph Y. Avrahamy; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich, for Plaintiff and Appellant.
Hinshaw & Culbertson, John W. Sheller, Clint D. Robison, and Wendy Wen Yun Chang for Defendants and Respondents.
ALDRICH, J.
I.
INTRODUCTION
Corina Smith filed a civil lawsuit against the City of Los Angeles (the City) and a number of individuals stemming from her employment as an officer in the Los Angeles Police Department (LAPD or the Department).
The main issues in this appeal relate to whether the jurats in declarations Smith presented in opposing a summary judgment motion were defective and if they were defective, if there was other evidence in the record to raise triable issues of fact on her causes of action for hostile work environment and retaliation. We also address whether the trial court properly sustained a demurrer without leave to amend to Smith’s request for declaratory and injunctive relief. We affirm in part, reverse in part, and remand to the trial court with directions.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of the allegations brought by Smith.
The following facts come from the statement of undisputed facts. We have also added some historical facts (such as when and where Smith worked) as there does not appear to be a dispute about them and they are necessary to explain the factual premise of Smith’s lawsuit. If appropriate, we have indicated where the parties disagree.
Smith graduated from the Los Angeles Police Academy in September 1988. In the summer of 1989, Smith was engaged to a SWAT Team member. In October 1989, they broke up and the SWAT Team member returned to his wife. According to the City, Smith was upset and she put a gun to her mouth; another officer had to take the gun away from Smith. According to Smith, while she was upset, she was not suicidal and voluntarily relinquished her weapons. Smith talked to a LAPD psychologist that evening.
On October 31, 1989, the Swat Team member had a heart attack. Smith again relinquished her weapons. There is a dispute as to whether Smith temporarily gave up her weapons voluntarily or if she was mandated to do so by the LAPD. Smith spoke to a psychologist twice. During these sessions, Smith denied being suicidal and Smith was informed that the Swat Team member’s wife had made a death threat against her. Smith thought the therapy sessions went badly and refused to see the psychologist again.
Smith states that after these events, a rumor started in the LAPD that she was a “psycho” who had been found standing naked on a diving board while holding a gun to her head. According to Smith, she heard this rumor hundreds of times throughout her professional career. The City states that the rumor was about Smith’s suicide attempt.
Smith began her LAPD career at the Rampart Station and thereafter was stationed at the Foothill Division. When she was promoted to sergeant in 1994, she was assigned to the West Valley Station and subsequently to the Hollywood Station. In 1998, Smith was selected as the assistant watch commander in the West Valley Division. She eventually was promoted to lieutenant, working in risk management.
A promotional meeting was held around October 12, 2004, wherein assistant chiefs discussed potential candidates for captain. Smith alleges that when her name was mentioned in the meeting, Assistant Chief David Gascon alluded to the rumor by stating it would send the wrong message to the organization to promote someone with Smith’s personal history. The City denies this allegation. Smith’s name was not placed on the promotion list.
In October 2004, Smith complained to Assistant Chief Papa about the rumor and the unfairness and effects it had on her. According to Smith, Assistant Chief Papa did nothing and Smith “felt that it was unfair that [the rumor] was being used as a basis to not make [her] captain. And [she] was never made a captain then or even when [she] came out... on the next captain’s list. [¶] [Smith felt] nothing was done about it.”
Smith took the captain’s exam again and was placed on the 2004-2006 promotion list, but she was not selected.
On January 6, 2005, in an unrelated matter, Smith was deposed and asked questions about the rumor. About two weeks later, she suffered a miscarriage. According to Smith, after these events, she decided she was no longer “going to allow members of the LAPD to casually defame her without there being consequences.”
Smith alleges that in August 2006, she talked with Deputy Chief James McMurray about the fact that she had not been promoted and whether he thought it had anything to do with the rumor. According to Smith, it was at this time she learned that she had been promoted to lieutenant only after an investigation proved the rumor to be false. This investigation had been conducted at the directive of former Chief of Police Bernard C. Parks (Chief Parks). Smith also alleges she reported to her supervisor, Commander Maislin, that she wished to lodge a formal complaint about statements Officer Manuel Ortega had made, but Commander Maislin refused to take the complaint.
On October 10, 2006, Smith filed a civil complaint against the City and a number of individuals. At the time, Smith was in a supervisory position in the risk management group responsible for complex litigation. In her position, Smith had access to confidential information, including information relating to the other lawsuits being prosecuted by her attorneys against the City. After she filed her lawsuit, Smith was reassigned to the consent decree bureau.
According to the City, Smith was transferred temporarily out of the risk management group because once Smith sued the City, she had a conflict of interest. Also, according to the City, Smith’s assignment in the consent decree bureau involved tasks commensurate with her grade. According to Smith, the new assignment involved mundane tasks, not commensurate with her job level. Smith alleges that the reassignment was in retaliation for her filing her lawsuit and not because there was a conflict of interest. When Smith was transferred, she also was taken off the on-call status, wherein Smith had been on call one time per month to respond to certain police scenes. According to Smith, she lost between $600 and $1,200 per month when she was taken off the on-call status.
Smith also alleges that in addition to hearing the rumor over the years and being harassed and humiliated, there were many other events involving the rumor that precipitated this lawsuit. As example, she states that she received an anonymous, threatening letter and emails referencing the rumor.
On January 4, 2007, Smith went on sick leave.
B. Procedure.
1. The original complaint, DFEH claim, and demurrer.
As mentioned, Smith filed her civil lawsuit on October 10, 2006. On December 29, 2006, she filed a claim with the California Department of Fair Employment and Housing (DFEH). The DFEH claim included a single charge of retaliation for filing her lawsuit. In the DFEH filing, Smith named only the City of Los Angeles, Gerald Chaleff (commanding officer of the consent decree bureau), and Stuart Maislin (commander of the risk management group).
Smith filed her first amended complaint on January 16, 2007, seven days after she received a right to sue letter from the DFEH on January 9, 2007.
2. The third amended complaint.
Smith filed a third amended complaint on November 9, 2007, against the City, Police Chief William Bratton, Assistant Chief McDonnell, Assistant Chief Gascon, Commander Maislin, Officer Pulido and Officer Ortega. Smith alleged in the fourth cause of action that the rumor was spread by fellow officers and supervisors, creating a hostile work environment and depriving her of a promotion to captain. In Smith’s fifth cause of action for retaliation, Smith alleged the defendants retaliated against her for filing her October 10, 2006 civil complaint, by such actions as stripping her of a leadership and supervisory position, and decreasing her salary. She also alleged causes of action for declaratory relief and injunctive relief. (When necessary, we discuss the individual defendants by name. Otherwise, for simplicity, we address them collectively with the City as “the City.”)
3. The demurrer to the declaratory relief and injunctive relief causes of action.
On November 28, 2007, the City demurred to the declaratory relief and injunctive relief causes of action. The trial court sustained the demurrer without leave to amend.
4. The motion for summary judgment.
a. The City’s motion.
On December 24, 2007, the City filed a motion for summary judgment. The motion was set to be heard on January 18, 2008. Because the parties attended mediation, the civil court proceedings were stayed and the trial date vacated. Although the mediator made a proposal for settlement, it did not become an enforceable agreement.
Smith states that the Los Angeles City Council did not accept the mediated resolution. The City states it did not accept the mediator’s proposal.
On January 25, 2008, the hearing on the summary judgment motion was reset for the middle of March 2008.
b. The ex parte hearing and Smith’s opposition.
Smith filed an opposition to the summary judgment motion on Friday, February 29, 2008. In an ex parte motion set to be heard the following week, the City objected to Smith’s opposition because it exceeded the permissible page limit. At the ex parte hearing, Smith successfully opposed the City’s request to continue the trial date.
On the day of the ex parte hearing, Smith filed an opposition brief that was shorter than the one previously filed. She attached to her opposition nine declarations from current or former Los Angeles Officers – Bob Riley, Mark Pompano, Lydia Ward, Susana Padilla, Donovan Lyons, Brent Rygh, Neckole Malik, Robert Kirk, and Jose Maldonado (collectively the officer declarations). These declarations confirmed Smith’s assertion that a rumor about her being suicidal and standing on a diving board naked was prevalent in the Department.
Smith also submitted her declaration, the declaration of her attorney (Joseph Y. Avrahamy) and the declaration of Chief Parks, who was a current Los Angeles City Councilman. In attorney Avrahamy’s declaration, he sought to authenticate deposition excerpts from eight individuals, an anonymous letter received by Smith, and other documents.
c. The reply and evidentiary objections.
In its reply brief filed nine days before the March 19, 2008 hearing on the motion, the City objected to the three declarations of Smith, attorney Avrahamy, and Chief Parks. Citing Code of Civil Procedure section 2015.5 (Section 2015.5), the City argued that these three declarations should be stricken because the jurats were incomplete as they did not state that the declarations were executed in California, or if they were executed outside of California, that they were signed under the laws of the State of California.
The City also presented these arguments: (1) Smith had not properly authenticated the documents attached to her declaration; (2) attorney Avrahamy had not authenticated the deposition transcripts attached to his declaration because he had not attested that the transcripts were true and correct, and he had failed to attach the signature pages of the witness or the court reporter; and (3) Chief Parks’s declaration should be stricken because it contained improper opinions based on outdated information.
Smith filed no pleading addressing the City’s objections.
d. The hearing and the trial court’s ruling.
A hearing on the summary judgment motion was held on March 19, 2008. During the hearing, the City twice asked the trial court to rule on its evidentiary objections. The trial court stated it would do so when it issued its decision. Attorney Avrahamy, appearing for Smith, did not address the City’s evidentiary objections.
On March 21, 2008, the trial court granted the motion. The court stated, “[the City] filed objections to [Smith’s] declarations specifically [the City] objected that the declaration[s] did not comply with Code of Civil Procedure section 2015.5. [Smith] did not respond to this objection and did not address it at oral argument nine days later. The objections are well taken. [Smith’s] declarations although ostensibly made under penalty of perjury do not state whether they were signed in this state, or if outside of this state made pursuant to the perjury laws of this state. ([Code Civ. Proc., ] § 2015.5.) Thus they are not in compliance with the code and are inadmissible if objection is made. Here objection has been made. Therefore, the declarations are inadmissible. Thus, [Smith] has no admissible evidence to dispute [the City’s] evidence in support of the motion.”
5. Smith’s motion for new trial and Code of Civil Procedure section 473 motion.
On March 28, 2008, Smith filed a new trial motion arguing the trial court made an error of law because Chief Parks’s declaration met the statutory requirements. Smith further contended that even if the trial court properly excluded some declarations, triable issues of fact had been shown by facts contained in other evidence before the court such as her own 124 page deposition, the deposition transcripts of other individuals, and the officer declarations.
On April 3, 2008, Smith filed a motion for relief pursuant to Code of Civil Procedure section 473, subdivision (b) (Section 473) seeking discretionary relief. In support of her motion, Smith filed a 182 page amended separate statement of disputed and undisputed facts. She identified in bold the evidence contained in the City’s exhibits which Smith claimed demonstrated triable issues of fact. Smith attached evidentiary material. Smith argued the trial court was incorrect in its evidentiary rulings because the stricken declarations substantially complied with Section 2015.5. Smith filed amended declarations in which the jurats were corrected to meet the statutory requirements.
In a supporting declaration, attorney Avrahamy declared the following. After the case was not resolved through settlement, he had less than a month to prepare for trial and handle a flurry of activity, including depositions and motions in limine. Because he was a solo practitioner, he was overwhelmed with the workload and had failed to properly review the City’s evidentiary objections. Had he properly reviewed the objections, he would have immediately cured the errors in the jurats. According to attorney Avrahamy, he was “unaware of the need to address the objections at oral argument. Had the admissibility of the declarations been addressed at oral argument by either the Court or [the City’s] counsel, [he] would have either requested to immediately cure the declarations or would have been able to illustrate to the Court that there was other evidence, not in question, which established that there were triable issues of fact. [His] failure to address the objections at oral argument is therefore based on excusable inadvertence.”
On April 25, 2008, a hearing was held on Smith’s new trial motion and Section 473 motion. The trial court reversed its ruling that had excluded the declaration of retired Chief Parks, and then denied Smith’s motions.
On June 6, 2008, the trial court entered judgment in favor of the City of Los Angeles, Police Chief Bratton, Assistant Chief McDonnell, Assistant Chief Gascon, Commander Maislin, Detective Pulido, and Officer Ortega.
This appeal followed.
III.
DISCUSSION
A. Parties to this appeal and issues we may consider.
Before we discuss the substantive issues, it is necessary to sort out the parties and the arguments that we may address.
1. The proper parties to this lawsuit.
Gerald Chaleff was named in the DFEH charge filed on behalf of Smith. However, he was not named in the complaint and thus, as Smith concedes, he cannot be a party to this lawsuit. Correctly, he was not mentioned in the judgment.
The civil lawsuit did name as defendants, Police Chief Bratton, Assistant Chief McDonnell, Assistant Chief Gascon, Detective Pulido, and Officer Ortega. The trial court had before it the December 2006 DFEH complaint. The individually identified defendants were not named, identified, or discussed in the December 2006 DFEH complaint. Thus, even though a judgment was entered in their favor on the record properly before the trial court, these individuals could not be proper parties to this civil lawsuit. (Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1511; Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116, 118.) (At the hearing held on March 19, 2008, Smith conceded that Chief Bratton should be dismissed as an individual.) Additionally, Commander Maislin was named in the third amended complaint as well as the December 2006 DFEH complaint. Thus, he is a proper party.
Smith attached as an exhibit to her reply brief filed in this court a second DFEH complaint in which she complained about workplace harassment and an accompanying October 5, 2006 right to sue letter. This second DFEH complaint mentions Assistant Chief Gascon and Officer Ortega. However, as the City notes in its objection filed with this court, these documents were not before the trial court and cannot be considered by us. (Cal. Rules of Court, rule 8.204(b).) Further, in Smith’s statement of disputed and undisputed facts, Smith admitted she filed a complaint with the DFEH on December 29, 2006 and failed to mention any other filing. Thus, for purposes of this appeal, we will sustain the City’s objection and strike the exhibit attached to Smith’s reply brief.
However, on remand, the trial court is to identify the individual defendants who are proper parties to this lawsuit and determine the effect of the second DFEH complaint. As we explain in subsequent sections of this opinion, Smith concedes that other than the hostile work environment cause of action, the City is the only proper defendant.
a. The issues before us.
After the ruling on the demurrer, the trial court granted summary judgment in favor of the City on all remaining causes of action in Smith’s third amended complaint. On appeal, Smith only discusses the ninth and tenth causes of action for declaratory and injunctive relief, and her causes of action for retaliation and hostile work environment. Thus, as Smith concedes, she has waived any argument relating to all other causes of action, as well as her request for punitive damages.
The City suggests we cannot discuss Smith’s hostile work environment cause of action since Smith failed to exhaust her administrative remedies by not addressing it in the DFEH complaint. We disagree. The City waived this argument by failing to raise it in the trial court. (People ex rel. DuFauchard v. U.S. Financial Management, Inc. (2009) 169 Cal.App.4th 1502, 1512-1513 [noting that Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293 characterized exhaustion of administrative remedies as “jurisdictional, ” but “did not hold that the exhaustion doctrine implicated a court’s subject matter jurisdiction”]; Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 133-136 [noting some split in authority]; Mission Housing Development Co. v. City and County of San Francisco (1997) 59 Cal.App.4th 55, 67.)
Smith argues the City’s exhaustion of administrative remedies argument also fails because it is factually incorrect. For this argument, Smith relies upon the second DFEH complaint and accompanying right to sue letter that was attached to her reply brief. As we noted above, these documents were not before the trial court and cannot be considered by us. (Cal. Rules of Court, rule 8.204(b).)
B. There are triable issues of fact on Smith’s causes of action for hostile work environment and retaliation.
We now turn to the trial court’s granting summary judgment to the City on Smith’s causes of action for hostile work environment and retaliation.
1. The standard of review.
“ ‘Summary judgment is properly granted where there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision granting a summary judgment de novo. In doing so, we liberally construe all conflicting facts in the light most favorable to the party opposing the motion. [Citations.]’ [Citation.]” (Baudino v. SCI California Funeral Services, Inc. (2008) 169 Cal.App.4th 773, 781.)
“A defendant moving for summary judgment bears the burden of showing that a cause of action has no merit because plaintiff cannot establish an element of the claim or because defendant has a complete defense. If the defendant makes this showing, the burden then shifts to the plaintiff opposing the summary judgment motion to establish that a triable issue of fact exists as to these issues. [Citations.]” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741, citing among others, Code Civ. Proc., § 437c, subds. (a), (p)(2).)
The key to any summary judgment motion is whether there is admissible evidence demonstrating triable issues of fact. The court may only consider admissible evidence and supporting declarations demonstrating that the declarant is “competent to testify to the matters stated in the... declarations.” (Code Civ. Proc., § 437c, subd. (d).) Expert opinions having the proper foundation can create triable issues of fact. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 472.)
2. The evidence that was properly before the trial court.
The trial court struck almost all of the evidence submitted by Smith in opposing the motion for summary judgment. Before we determine if the trial court was correct in granting summary judgment, we examine the evidentiary rulings.
We first hold that the trial court correctly excluded Smith’s declaration and that of attorney Avrahamy. We also hold that the trial court should have considered the officer declarations and Chief Parks’s declaration. Additionally, we hold that in addressing the merits of the summary judgment motion, the trial court was not obligated to glean information from the vast record presented by the City, unless the parties had directed the court to specific information.
a. The trial court correctly excluded the declarations of Smith and attorney Avrahamy.
The City objected to the declarations of Smith and attorney Avrahamy. The premise of the objection was that the jurat in these documents failed to comply with the mandatory requirements of Section 2015.5 . As to these two declarations, the trial court’s ruling was correct.
Section 2015.5 details the requirements for declarations. It reads in part:
“Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration... or affidavit, in writing of the person making the same (other than a deposition...), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration... in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form:
“(a) If executed within this state:
“ ‘certify (or declare) under penalty of perjury that the foregoing is true and correct’
“___________________________ ________________________________
“(Date and Place) (Signature)
“(b) If executed at any place, within or without this state:
“ ‘certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct’:
“___________________________ _______________________________
“(Date) (Signature)”
Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601 (Kulshrestha) discussed at length Section 2015.5. In Kulshrestha, the plaintiff sued his ex-employer alleging he had been wrongfully terminated. The plaintiff sought to raise triable issues of fact and to prevent a summary judgment by filing his declaration. However, the declaration was executed out-of-state and did not indicate it had been made under the laws of California. (Kulshrestha, supra, at pp. 606-607.) The trial court excluded the plaintiff’s declaration and entered summary judgment for the defendant. Thereafter, the plaintiff filed a motion pursuant to Section 473, subdivision (b) to vacate the order granting summary judgment, and to obtain a trial on the merits. He also sought to file an amended declaration. The plaintiff “maintained that through mistake or other excusable circumstance, [his] counsel overlooked the omission, and forgot to offer to amend the declaration at the summary judgment hearing.” (Kulshrestha, supra, at pp. 607-608.) The trial court denied plaintiff’s relief motion. (Id. at p. 608.) On appeal, the plaintiff contended, among other contentions, that the declaration substantially complied with Section 2015.5. The appellate court disagreed and affirmed the judgment against the plaintiff. Kulshrestha affirmed. (Kulshrestha, supra, at pp. 606, 619.)
Kulshrestha recognized that the summary judgment statute permitted the use of affidavits and declarations. (Code Civ. Proc., § 437c, subd. (b)(1) & 2.) However, it and other statutes placed certain limits on the admissibility of affidavits and declarations. (E.g., § 437c, subd. (d) [contents must be based on personal knowledge and be otherwise admissible], Code Civ. Proc., §§ 2003, 2012-2013; Kulshrestha, supra, 33 Cal.4th at p. 609.) As noted, “[d]eclarations serve as a more streamlined means of ensuring that the witness understands ‘the grave responsibility he has assumed with respect to the truth[].’ [Citation.]” (Kulshrestha, supra, at p. 609.) With regard to the requirement that declarations signed out-of-state must comply with the statutory requirements, Kulshrestha concluded, “[i]t seems clear that out-of-state declarations offend section 2015.5, and are not deemed sufficiently reliable for purposes of that statute, unless they follow its literal terms.” (Kulshrestha, supra, at p. 611.)
Kulshrestha, supra, 33 Cal.4th at page 611found support for its conclusion by examining “section 2015.5’s description of declarations ‘executed within this state.’ (Italics added.) Under the... rules of [statutory] construction, in-state declarations must satisfy the same substantive requirements as their out-of-state counterparts, including an express facial reference to California’s perjury law. The latter requirement is met in one of two alternative ways: (1) by stating the ‘place of execution’ in California, or (2) by stating that the certification or declaration under penalty of perjury occurs ‘under the laws of the State of California.’ (Ibid.) Thus, where the face of the declaration shows execution occurred in California, the statute presumes the declarant’s knowledge that the act triggers California law -- i.e., that such understanding is adequately expressed by naming the ‘place of execution’ within this state. (Ibid.) Otherwise, the Legislature sought explicit reference to California’s ‘laws’ even from persons who signed their declarations here. (Ibid.) It follows that where a California site cannot be named because the declaration was signed elsewhere, the declarant is deemed to know that California law applies only if he explicitly invokes such law. [¶] Finally, the language of section 2015.5 indicates that unsworn declarations used in lieu of affidavits or other sworn statements may follow the format appearing in exemplars (a) and (b). Exemplar (a), which is limited to declarations executed ‘within’ California, shows that the document is signed, dated, and made under penalty of perjury at a particular place. Exemplar (b) more broadly covers declarations signed ‘within or without’ this state, including those not showing a place of execution in California and those showing they were signed in other states. Consistent with the view that out-of-state declarations cannot forgo such language, exemplar (b) recites, in the line above the signature and date, that the statements are certified or declared true under penalty of perjury ‘under the laws of the State of California.’ (§ 2015.5.) As to each sample declaration, section 2015.5 allows the prescribed contents to appear in ‘substantially’ the same ‘form’ on the printed page. However, it seems no item can be omitted altogether.” (Kulshrestha, supra, at p. 611, last italics added.)
Kulshrestha, supra, 33 Cal.4th 601 rejected the plaintiff’s argument that the “flaw in his declaration is de minimis, and does not threaten its reliability or admissibility as evidence on summary judgment.” (Id. at p. 612.) Rather, “[b]ased on the plain meaning of the statute, and consistent with the legislative history..., the courts have made clear that a declaration is defective under section 2015.5 absent an express facial link to California or its perjury laws.... [C]ourts do not find compliance with section 2015.5 to be both substantial and sufficient unless all statutory conditions appear on the face of the declaration in some form.” (Kulshrestha, supra, at p. 612, fns. omitted.)
Kulshrestha held that the trial court had correctly excluded the plaintiff’s declaration under Section 2015.5 and affirmed the judgment. (Kulshrestha, supra, 33 Cal.4th at p. 619.)
Here, the declarations of attorney Avrahamy and Smith did not comply with Section 2015.5. While the declarations stated that they had been signed under penalty of perjury, they did not indicate where they had been signed or if they had been executed “under penalty of perjury under the laws of the State of California, ” as required.
Smith argues her declaration substantially complied with the requirements of Section 2015.5 because it bore a case caption for the Superior Court of the State of California. Smith cites McCauley v. Superior Court (1961) 190 Cal.App.2d 562 (McCauley). McCauley concluded that a declaration that had a case caption “In the Justice Court of the Upland Judicial District County of San Bernardino, State of California” (italics added) and also contained the words “State of California [¶] County of San Bernardino” substantially complied with Section 2015.5 and was admissible. (McCauley, supra, at p. 563.) However, Kulshrestha, supra, 33 Cal.4th 601 specifically rejected a substantial compliance argument. (Id. at p. 612.) Further, although Smith’s declaration had a case caption, it did not state that it was “in” a particular court, nor did it have any other indication as to where it was executed.
To support her argument that a declaration is admissible as long as it included a case caption, Smith points to Hirschman v. Saxon (1966) 246 Cal.App.2d 589 which held that a declaration met the statutory requirements because it had been signed personally by the declarant, was dated, and indicated it was executed in Los Angeles County, “in the identical fashion approved in McCauley v. Superior Court[, supra, ]190 Cal.App.2d 562, 563.” (Hirschman, supra, at p. 593.) Smith then notes that Kulshrestha, supra, 33 Cal.4th at page 612, footnote 5 cited Hirschman with approval. Thus, according to Smith, the Supreme Court has implicitly approved McCauley. However, Kulshrestha characterized Hirschman as satisfying the statute even though the declaration differed in format from the exemplar (Kulshrestha, supra, at p. 612, fn. 5), to support Kulshrestha’s statement that “courts do not find compliance with section 2015.5 to be both substantial and sufficient unless all statutory conditions appear on the face of the declaration in some form.” (Kulshrestha, supra, at p. 612.) Given Kulshrestha’s explicit holding that substantial compliance with Section 2015.5 is inadequate and the manner in which Kulshrestha discussed Hirschman, we cannot accept Smith’s suggestion based on Hirschman that her declaration met the statutory requirements.
Smith suggests the trial court should have permitted her to cure the defects in the two declarations. However, any such argument is waived because Smith never asked to cure the defects in writing or at the hearing on the motion. Smith only asked to cure the defect after the trial court granted summary motion. (Compare with, Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1527-1528 [trial court should have permitted party to cure defect in attorney’s declaration when attorney offered to do so at oral argument].)
The trial court properly excluded the declarations of attorney Avrahamy and Smith.
b. Chief Parks’s declaration was properly before the court.
The trial court originally sustained the City’s objection to Chief Parks’s declaration, but subsequently reversed that ruling when it addressed Smith’s motions for relief. The court was correct in recognizing that Chief Parks’s declaration was admissible.
Before the signature line in Chief Parks’s declaration, he declared “the foregoing to be true to the best of my knowledge and belief under the penalties of perjury under the laws of the State of California that the foregoing is true and correct.” (Italics added.) Based on this line, the City argues the declaration was “technically defective” and inadmissible. The City is correct that an averment with the phrase “to the best of my knowledge” may indicate an element of uncertainty and result in the exclusion of a declaration. (Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1215; Bowden v. Robinson (1977) 67 Cal.App.3d 705, 719-720.) However, exclusion is not automatically mandated. Trial courts may “evaluate the phrase ‘to the best of my knowledge’ as used in... context and decide whether it injected uncertainty into [a] declaration.” (Katelaris v. County of Orange, supra, at p. 1216.)
Here, the trial court examined Chief Parks’s declaration in total and found no such uncertainty. This examination would have included the first line of the declaration in which Chief Parks declared, “[t]he following facts are personally known to me, and if called as a witness, I could and would competently testify thereto.” Given this statement and others contained in the declaration, we will not quarrel with the trial court’s conclusion that the declaration was admissible. (Katelaris v. County of Orange, supra, 92 Cal.App.4th at p. 1216.) Additionally, although the City argues this declaration should have been excluded, the City has failed to file a cross appeal challenging any of the court’s rulings.
Thus, the admissible information contained in Chief Parks’s declaration was to be considered in evaluating the motion for summary judgment.
c. The trial court should have considered the officer declarations.
It appears by its ruling that the trial court excluded the officer declarations. Like those from Smith and attorney Avrahamy, the officer declarations lacked compliance with Section 2015.5. However, the City never objected to the officer declarations. Thus, the trial court erred in striking them. (Code Civ. Proc., § 437c, subd. (b)(5) [evidentiary objections not made are waived]; Code Civ. Proc., § 437c, subd. (d) [parties must object to declarations not in proper form and those lacking a proper showing of competency, otherwise objections are waived]; Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 586, fn. 6 [“The summary judgment statute specifically provides that any evidentiary objections not made at the hearing ‘shall be deemed waived.’ [Citation.] Thus, the [plaintiffs] had the right to waive any hearsay objections and to acquiesce in the defendants’ evidentiary submissions. The trial court erred in interposing and sustaining its own hearsay objection to defendants’ moving papers.”].)
The City contends that even though it never objected to the officer declarations, the trial court had the inherent discretionary power to make evidentiary determinations and exclude evidence. The City also contends that there can be no waiver of the right to object to matter inadmissible by virtue of incompetency. However, in raising these contentions, the City fails to address Code of Civil Procedure section 437c, subdivision (d) which states: “Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.”
Therefore, the admissible information contained in the officer declarations was to be considered by the trial court in examining the City’s motion for summary judgment.
d. The trial court was not obligated to scour the record to find evidence.
Smith argues that in addressing the summary judgment motion, the trial court should have considered other items in the record. For example, Smith suggests that the contents of her 124 page deposition and the deposition testimony from Assistant Chiefs Papa and Gascon should have been considered because these items had been attached to the City’s moving papers and the City had authenticated them.
Courts may examine the entire record in deciding if a summary judgment is appropriate (see, Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112-113), and evidence contained in moving papers may help to defeat a motion (see, Ambriz v. Kelegian, supra, 146 Cal.App.4th at p. 1528 [party placing deposition transcript before the court foreclosed from arguing that opponent’s excerpts from same deposition are not properly authenticated]). However, it is not incumbent on either the trial court or this court to scour a voluminous record to find evidence. Rather, when Smith opposed the summary judgment motion, it was her responsibility to identify evidence in the record and demonstrate the significance of that evidence to support her position. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-32.)
Smith also suggests that even if attorney Avrahamy’s declaration was inadmissible, the deposition transcripts attached to his declaration were self-authenticating and admissible. However, “[a]uthentication of a writing is required before it may be received in evidence.” (Evid. Code, § 1401, subd. (a).) Documents are not presumed to be what they purport. (Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 65.) The deposition transcripts were inadmissible because they were not authenticated and thus, they could not be considered by the trial court in ruling on the summary judgment motion. Additionally, even if the City had authenticated certain excerpts from some depositions, it was incumbent upon Smith to direct the trial court to those portions of the depositions that were in support of her opposition to the City’s summary judgment motion.
We now turn to whether or not the evidence before the trial court raised triable issues of fact. Thus, we examine the officer declarations, the declaration of Chief Parks, the admitted facts, and those facts demonstrated by the City. As Smith concedes, we need only address the hostile work environment and retaliation causes of action.
3. There are triable issues of fact with regard to Smith’s cause of action for hostile work environment.
In her fourth cause of action for hostile work environment, Smith alleged that from October 1989 to August 2006, she was subjected to harassment by her fellow officers and her superior officers “in the form of a pernicious false rumor of a sexual nature that she was standing naked on a diving board with a gun pointed to her head because her boyfriend broke up with her. The rumor was sufficiently pervasive so as to alter the conditions of her employment and created an abusive environment.” Smith alleged this harassment had a broad array of consequences. On appeal, Smith narrows the focus of her hostile work environment cause of action and limits her argument. She states her “harassment claim is not based on the City’s overall failure to investigate or deal with the harassment arising from the prevalence of the rumor; it is based on the failure to deal with it at the point where she decided [in August 2006] to file a specific complaint based upon it against Officer Ortega, and on the effect that the rumor appears to have had on her attempt to obtain a promotion from Lieutenant to Captain.”
To maintain a cause of action based upon discrimination, retaliation, or failure to accommodate, an administrative charge must be filed within one year of the discriminatory act. (Gov. Code, § 12960.) Acts occurring outside this time frame cannot give rise of a claim. (Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1040 (Cucuzza).) Because Smith did not file her DFEH claim until December 29, 2006, the City argues Smith’s allegations of a hostile work environment are untimely.
Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 (Richards) discussed under what circumstances the Fair Employment and Housing Act (FEHA) one-year limitation period may be extended because an employer has engaged in a series of unlawful acts. Courts refer to this concept as the “continuing violation” doctrine. (Id. at pp. 811-812; see also, Cucuzza, supra, 104 Cal.App.4th at pp. 1040-1043.) Richards delineated the requirements of this doctrine as follows: “an employer’s persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in kind -- recognizing, ... that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.]” (Richards, supra, at p. 823; followed by, Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059.)
“[I]f the statute were to accrue when the first incident occurred, the pressure to file a lawsuit before the statute expired could easily inhibit meaningful efforts at conciliation. But when the situation reached a state of permanence, then the plaintiff no longer has any reason to delay filing.” (Cucuzza, supra, 104 Cal.App.4th at p. 1042, citing Richards, supra, 26 Cal.4th at pp. 820-823.) Richards holds that unless the unlawful conduct stops entirely or the employee leaves the job, permanence occurs “when an employer makes clear that it will not further accommodate an employee.... If the employer has made clear in word and deed that the employee’s attempted further reasonable accommodation is futile, then the employee is on notice that litigation, not informal conciliation, is the only alternative for the vindication of his or her rights. Barring a constructive discharge, it is at that point the statute of limitations for the violation begins to run.” (Richards, supra, at p. 823.)
“Thus, when an employer engages in a continuing course of unlawful conduct under the FEHA... the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Richards, supra, 26 Cal.4th at p. 823.)
The City argues all of the evidence before the court showed that, as a matter of law, the rumor had obtained a degree of permanence and thus, the statute of limitations for Smith’s hostile work environment cause of action expired prior to the filing of her DFEH claim.
In this appeal we are not determining if the City will be liable for a hostile work environment, but only if there are triable issues of fact with regard to this cause of action, and in particular, if the statute of limitations precludes this cause of action. The parties concede, as demonstrated through the officer declarations, that the rumor was prevalent. For example, Neckole Malik declared she had heard the rumor about Smith standing naked on a diving board and putting a gun to her head approximately one hundred times.
The City points to the prevalence of the rumor to argue the rumor had become permanent. The City suggests Smith believed that seeking redress through the LAPD was futile and Smith waited too long to file this lawsuit. This futility argument is premised upon an excerpt from Smith’s deposition in which she testified that “I just knew it wasn’t gonna do any good [to] report misconduct, because I had reported it before and they did nothing.” However, this excerpt cannot be read in isolation and misinterprets Smith’s argument.
The above quoted statement is only one part of Smith’s testimony relating to her complaints. Smith also testified that she complained about the rumor in 1999, an investigation was conducted, and she was promoted to lieutenant thereafter. The City admits that “[e]ach time [Smith] complained, the LAPD took appropriate action.” The City also admits that “[w]ith the exception of her October, 2004 conversation with Chief Papa, [Smith] testified that the only times she raised a complaint to the LAPD’s attention, the LAPD took action to deal with it.” These admissions support Smith’s suggestion that only toward the end of her employment did she not believe the Department would address problems when they arose. Consistent with Smith’s belief that she would be promoted, Smith took the captain’s exam again and was placed on the 2004-2006 list, but she was passed over repeatedly. Further, the premise of Smith’s hostile work environment argument, as discussed in this appeal, is not that the rampant rumor circulated for years. Rather, Smith’s argument is that as a result of the rumor she was not promoted to captain. These and other facts in the record raise a triable issue of fact as to when, or if, Smith was on notice that further efforts to end the unlawful conduct of denying her a promotion would have been in vain and she was obligated to begin litigation by filing a claim with the DFEH.
Thus, there are triable issues of fact with regard to Smith’s cause of action for hostile work environment.
4. There are triable issues of fact with regard to the retaliation cause of action.
Smith persuasively argues that she has raised triable issues of fact with regard to her fifth cause of action for retaliation.
It is an unlawful employment practice for an employer to retaliate against an employee for opposing any discriminatory practices forbidden by the FEHA or to retaliate because the employee has filed a complaint, testified, or assisted in any proceeding under the FEHA. (Gov. Code, § 12940, subd. (h).)
With particular reference to discrimination claims, California courts have adopted a burden-shifting test. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68-69.) “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity, ’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. [Citations.]” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042.)
Akers v. County of San Diego (2002) 95 Cal.App.4th 1441 held that an “employer’s retaliatory conduct must have had a substantial and material adverse effect on the terms and conditions of... employment.” (Id. at p. 1459.) “A few years later in Yanowitz, our Supreme Court stated: ‘[T]he determination of what type of adverse treatment [suffices]... is not, by its nature, susceptible to a mathematically precise test....’ (Yanowitz [v. L’Oreal USA, Inc.], supra, 36 Cal.4th at p. 1054.) The court should consider ‘plaintiff’s allegations collectively under a totality-of-the-circumstances approach’ (id. at p. 1052, fn. 11) by taking ‘into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions’ do not suffice. (Id. at p. 1054.) But an adverse action that ‘is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of’ FEHA. (36 Cal.4th at pp. 1054-1055.) The [Supreme Court] noted that the collective impact of a series of retaliatory acts may constitute sufficient adverse employment action even if some of the acts individually would not. (Id. at pp. 1055-1056.)” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 423.)
When the employer moves for summary judgment on a retaliation claim, the predominant view is that once the employer presents a legitimate, non-retaliatory reason for an adverse employment action, the burden shifts to the employee to offer substantial evidence to raise a triable issue of fact demonstrating that the employer’s stated reason for the adverse action was untrue and there was intentional discrimination. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.)
Here, Smith alleged she was retaliated against in two different ways for filing her lawsuit: (1) the City transferred her out of the risk management group to a mundane position in the consent decree bureau requiring performance not appropriate for someone of her rank; and (2) the City reduced her salary by removing her from the on-call status.
In the City’s motion for summary judgment it did not address the second allegation relating to the reduction of Smith’s salary. On appeal, the City also fails to discuss this aspect of Smith’s retaliation cause of action. Thus, the City did not meet its burden of proof and, therefore, the trial court erred in granting summary judgment on Smith’s cause of action for retaliation.
Additionally, there are triable issues of fact with regard to the first part of Smith’s retaliation allegations. The City showed that while Smith worked in the risk management group, Smith was responsible for handling litigation against the City and had access to confidential information involving employment litigation by officers against the LAPD, including information about other pending matters being handled by her own attorneys. Also, according to evidence presented by the City, the position in the consent decree bureau was not below Smith’s rank because the job required someone to have considerable experience and skills and it was valuable to have someone such as Smith who could discuss issues with other lieutenants. These facts demonstrate that the City met its burden of proof by bringing forth evidence that a temporary transfer to the risk management group was required because there was a conflict of interest.
In response, Smith presented her declaration (which was properly excluded by the trial court) and the declaration of Chief Parks, which was admissible. Chief Parks declared that there was, in fact “little to minimal likelihood of a conflict of interest....” He also declared that in his opinion, the tasks assigned to Smith in the consent decree bureau were not those “suitable for someone of the rank of senior lieutenant....” Chief Parks also attested that he was “aware that the... Risk Management Group has approximately 130 personnel assigned to it, and it seems unlikely that a job assignment that utilized... Smith’s considerable talents and experience could not and would not be found within that command.” Chief Parks concluded by declaring that “[t]he combination of removal from her customary duties, stripping... Smith of her command responsibilities, apparent deliberate underutilization of experience, and effective reduction in pay appear to be a combination of circumstances that could lead to an effective argument that... Smith is being subjected to retaliation by her supervisors.” Further, there is no disagreement that the transfer occurred soon after Smith filed her lawsuit against the City.
Thus, the timing of the transfer and the evidence derived from Chief Parks’s declaration that there was minimal likelihood of a conflict of interest had Smith remained in the risk management group, that there were other positions in the risk management group suitable for Smith, and that the transfer was not appropriate for someone of Smith’s rank, raise triable issues of fact as to if the transfer, an adverse job action, was the result of retaliation.
On appeal, the City argues the contents of Chief Parks’s declaration are substantively insufficient to create a triable issue of fact because Chief Parks’s historical knowledge as the former Chief of Police is outdated. In support of this argument, the City has filed a request that we take judicial notice of the July 17, 2009 federal court memorandum and order lifting the federal consent decree that governed the LAPD since 2001. The City argues as follows: (1) in response to the consent decree, conditions in the Department have changed since Parks was Chief; (2) Chief Parks cannot attest to the conditions in the LAPD during the time involved in this case; and (3) thus, the information contained in Chief Parks’s declaration is irrelevant and does not raise a triable issue of fact.
While we may take judicial notice of court records and decision law of federal courts (Evid. Code, § 452, subd. (d)), the admission of the consent decree does not prove the City’s point. The City has not shown that the specific facts discussed in Chief Parks’s declaration about the Department are based on outdated policies and practices. Rather, the City speculates that because the Department has been under a consent decree, all of its policies, practices, and culture have changed. Without additional facts, we cannot accept this speculation as fact. Therefore, we decline to take judicial notice of the July 17, 2009 memorandum and order as it is irrelevant. Further, it is reasonable to conclude that Chief Parks would have information about the current status of the Department as he is a sitting member of the Los Angeles City Council.
Therefore, the trial court erred in granting summary judgment to the City on Smith’s cause of action for retaliation. The City did not meet its burden of proof on the first aspect of Smith’s retaliation argument (that her pay was reduced). Additionally, Smith brought forth admissible evidence on the second aspect of her retaliation cause of action (that she was improperly transferred to a lower position) raising triable issues of fact.
However, nonemployer individuals may not be held personally liable under FEHA for retaliation. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158.) Thus, the City is the only viable defendant in this cause of action.
C. The trial court erred in denying Smith’s motion for new trial.
After the trial court granted summary judgment, Smith filed two motions for relief. The first was a motion for new trial, which can be utilized to challenge the granting of a summary judgment. (Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 229.) “A new trial may be granted under Code of Civil Procedure section 657, subdivision 7, if the original ruling was erroneous as a matter of law. [Citation.]” (Ibid.) Smith persuasively contends the trial court erred in denying her motion for new trial.
As shown above, the trial court erroneously excluded the officer declarations because the City never objected to these declarations. As the trial court recognized in ruling on the motions for relief, the trial court initially erred in excluding Chief Parks’s declaration. The facts from these declarations taken together with other facts before the trial court raised triable issues of fact with regard to Smith’s causes of action for hostile work environment and retaliation. Therefore, as a matter of law, the trial court erred in granting summary judgment on these two causes of action and it erred in not granting Smith’s new trial motion.
Smith also filed a motion for relief pursuant to Section 473 seeking to have the trial court consider her declaration, the declaration of attorney Avrahamy, the documents attached to attorney Avrahamy’s declaration, and the entire record before the trial court, such as Smith’s deposition transcript. Since the trial court erred in denying Smith’s motion for new trial, we need not address the trial court’s ruling on the Section 473 motion.
D. The trial court correctly sustained the demurrer to the declaratory relief action, but erred in sustaining the demurrer to the injunctive relief cause of action.
1. Additional facts.
In Smith’s ninth and tenth causes of action for declaratory and injunctive relief, Smith argued that the City’s method of selecting lieutenants for promotion to captain violated the Los Angeles City Charter, a California statute, and the California Constitution. The ninth cause of action was directed at the failure to promote Smith to captain in the 2004-2006 eligibility period, and the tenth cause of action addressed the selection system itself.
In the ninth cause of action for declaratory relief, Smith alleged that in 1983, the City’s charter amendment changed the promotion system thereby replacing a merit system with one based on favoritism and cronyism enabling LAPD management to choose who it wanted for promotions, rather than those most qualified. According to Smith, the assistant chiefs were able “to bypass [her] promotion to Captain during the 2004-2006 eligibility period, and... to handpick twenty three lieutenants for promotion who may not have otherwise been eligible for promotion under the old system.” Smith alleged that the revised selection system was unconstitutional, violated Government Code section 19057.1, and section 1010 of the Los Angeles City Charter. Smith sought a declaration that her rights had been violated and the trial court should issue a declaration that she should be entitled “to... promot[ion] to Captain and gain all the benefits and rights of the rank of Captain.”
In the tenth cause of action for injunctive relief, Smith asked for an injunction to stop the City from using the new promotion system and prevent the City from continuing to violate Smith’s rights and those of other similarly situated lieutenants in the LAPD who sought to be promoted to captain.
The City demurred to the ninth and tenth causes of action. The City asserted the “fatal flaw to [the] Ninth and Tenth Causes of Action is that [Smith] is not on the current Captain’s eligibility list, a precondition to her having any standing to bring any challenge to the captain’s exam system and to ask for a promotion to that position.” (Italics and bold omitted.) The City contended these two causes of action failed because they addressed past wrongs and not future conduct and there was no current controversy.
In opposing the motion, Smith stated that she had standing to assert the declaratory and injunctive relief causes of action because she “is still a lieutenant in the [LAPD] with aspirations to promote to captain.” She contended the causes of action could go forward because the issues were of great public importance and were the proper means to challenge the legality and constitutionality of the selection process.
The trial court sustained the demurrer without leave to amend. The court stated, “[Smith] is not on the list, did not try to apply for the current captain’s exam and is in essence using these two causes of action as supplements to the other tort actions she has alleged. That is not the purpose of either declaratory or injunctive relief.”
2. Standard of review.
On appeal from the sustaining of a demurrer, “ ‘ “ ‘[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citations.] 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: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]” ’ ” (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1424.)
3. The trial court properly sustained the demurrer as to the declaratory relief cause of action.
A request for declaratory relief permits parties to obtain a declaration of rights or duties. (Code Civ. Proc., § 1060 et seq.) It “ ‘operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.’ [Citations.]” (Babb v. Superior Court (1971) 3 Cal.3d 841, 848; see also, 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 850, p. 265.)
Although a declaratory relief action can challenge the constitutionality of ordinances or statutes, declaratory relief is not appropriate to review an administrative decision insofar as an individual seeks to challenge the application of an ordinance or statute as applied to the individual as that would be seeking review of the validity of an administrative decision. (State of California v. Superior Court (1974) 12 Cal.3d 237, 249, 251.) Thus, for example, in State of California v. Superior Court, supra, a number of entities challenged the California Coastal Zone Conservation Commission’s denial of a permit. The Supreme Court held that the entities could not obtain a declaration that they had vested rights to proceed with a development. They could, however, seek a declaration of rights that the California Coastal Zone Conservation Act was unconstitutional. (Ibid.)
With regard to Smith’s ninth cause of action for declaratory relief, she addressed only a past event as she focused on the fact that she had not been promoted “to Captain during the 2004-2006 eligibility period....” Smith sought a declaration of her rights. She asked for a declaration that she should be entitled “to... promot[ion] to Captain and gain all the benefits and rights of the rank of Captain.” In that Smith asked for redress for past wrongs and because she sought review of an administrative decision only as to her, she could not obtain declaratory relief, and the trial court did not err in sustaining the demurrer to this cause of action without leave to amend.
Smith points to Terry v. Civil Service Commission (1952) 108 Cal.App.2d 861 (Terry) and Kidd v. State of California (1998) 62 Cal.App.4th 386 (Kidd). Both are inapplicable. Terry is a writ of mandate proceeding, not a declaratory relief case. In Terry, the plaintiffs challenged a Civil Service Commission decision denying their right to sit for a particular exam. A hearing on the writ resulted in a mandate in plaintiffs’ favor. Prior to judgment being entered, the test results showed that each of the plaintiffs had failed to pass the test. (Terry, supra, at p. 863.) Terry rejected the mootness argument finding that the issue was whether the plaintiffs had the right to take the exam, not to pass it. Terry held that the plaintiffs had a right to take the examination in the future. (Id. at pp. 871-872.)
In Kidd, supra, 62 Cal.App.4th 386, the plaintiffs challenged an affirmative action program, naming as defendants a number of governmental entities, including the Department of Fish and Game. Plaintiffs appealed from a judgment on the pleading in their lawsuit seeking declaratory and injunctive relief. The defendants claimed the issues were moot because prior to trial, the affirmative action selection process had been suspended. (Id. at p. 391.) In part, Kidd held that plaintiffs were entitled to a determination as to if their rights had been violated and also held that the action was not moot because the Department of Fish and Game had reserved the right to reinstate the program. (Id. at p. 398.) Additionally, the issues addressing the future use of the selection process was of great public interest and should be addressed. (Id. at p. 399.)
In contrast to Terry and Kidd, Smith did not file a writ of mandate. In her request for declaratory relief, she did not ask for a declaration with regard to future benefits, but sought to address past wrongs with regard to the 2004-2006 eligibility period. Thus, the trial court correctly sustained the demurrer without leave to amend as to the ninth cause of action.
Before discussing the issue of mootness, the appellate court in Kidd, supra, 62 Cal.App.4th at page 397, stated that the plaintiffs were entitled to equitable relief because they suffered harm when they were denied positions. However, in this short discussion, Kidd never discussed the requirement that declaratory relief is limited to protecting against future harm.
4. Injunctive relief.
Actions for an injunctive relief also apply prospectively. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332.) “Where there is evidence that the acts will probably recur, injunctive relief is proper. [Citations.]” (6 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, § 343, p. 287; State v. Superior Court, supra, 12 Cal.3d at p. 252.)
The City claims that Smith does not have standing to obtain injunctive relief. Standing is a jurisdictional issue that can be raised at any time in the proceedings, even on appeal. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438.) The City states that Smith lacks standing to challenge the selection system because she has chosen not to take the exam, “was not a current candidate, and offered no facts to indicate she ever would be a candidate in the future – a status now impossible as [Smith] is no longer a LAPD employee.”
However, we are addressing this issue after the trial court sustained a demurrer. As such, we must accept the allegations in the complaint and all reasonable inferences to be drawn therefrom. Thus, for purposes of review, we accept as fact that Smith is an LAPD lieutenant with aspirations to become a captain. The City does not provide a citation to the record to support its factual statement that Smith is retired from the LAPD on a medical pension, and thus, is not eligible in the future to take the captain’s examination.
Therefore, the trial court erred in sustaining the demurrer as to the tenth cause of action.
Smith concedes, however, that the only proper defendant to this cause of action is the City.
IV.
DISPOSITION
The trial court’s order sustaining the demurrer with regard to the ninth cause of action for declaratory relief is affirmed. The trial court’s order sustaining the demurrer with regard to the tenth cause of action for injunctive relief is reversed. The order denying Smith’s motion for a new trial is reversed.
The matter is remanded to the trial court for further proceedings involving Smith’s causes of action for hostile work environment, retaliation, and injunctive relief. On remand, the trial court is directed to decide if any individual defendant is a proper party to the hostile work environment cause of action.
We deny the City’s request to take judicial notice of the July 17, 2009, federal court memorandum. The exhibit attached to Smith’s appellate reply brief is ordered stricken.
Corina Smith is awarded costs on appeal.
We concur: KLEIN, P. J., KITCHING, J.