Filed 9/2/26 Garza v. City of Parlier CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JOSE GARZA, F089052, F089874
Plaintiff and Respondent, (Super. Ct. No. 21CECG02953)
v.
CITY OF PARLIER, OPINION Defendant and Appellant.
APPEALS from a judgment and order of the Superior Court of Fresno County.
Jonathan M. Skiles, Judge.
Liebert Cassidy Whitmore, Joung H. Yim, David A. Urban, and Nicole A. Powell, for Defendant and Appellant.
Pine Tillett, Norman Pine, Scott Tillett, Neo Khuu; Romero Law and Alan Romero for Plaintiff and Respondent.
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Defendant City of Parlier (“City”) terminated plaintiff Jose Garza’s employment as the City’s chief of police. Garza sued for retaliation under Labor Code1 section 1102.5. A jury found for him on his single cause of action and awarded him $1 million in damages. The case was submitted to the jury under subdivision (c) of section 1102.5, which protects an employee who refuses to participate in an activity that would result in an actual violation of a law, rule, or regulation. The City appeals, contending among other things that Garza failed to identify any specific law, rule, or regulation that would have been violated by his participation in the activity at issue, as subdivision (c) requires. We agree and reverse the judgment. This conclusion renders moot the City’s two other claims of error and also renders moot the City’s separate appeal from a post-judgment order awarding Garza attorney fees.
FACTS
I. Background Facts Garza served as the City’s chief of police from September 2017 until his termination in April 2021. Before joining the Parlier Police Department, Garza spent 36 years with the Fresno Police Department, retiring on September 3, 2017. He began his tenure as the City’s chief the following day, on September 4, 2017. By all accounts, his tenure with the City was successful. Crime dropped 41% in 2019 and another 8% in 2020. Garza maintained a productive working relationship with the city council, Mayor Alma Beltran, and City Manager Sonia Hall through at least early 2020, and the entire council praised the police department at a meeting in early 2020. Hall, Garza’s direct supervisor, described him as “the best chief she’d ever worked with” and acknowledged she had never given him negative feedback.
1 Undesignated statutory references are to the Labor Code.
The Missing Funds and Investigation On September 22, 2020, Garza received a report from police department records supervisor R.S. that funds collected by the police department for public services were missing. Receipts indicated the department had collected more in fees than the finance department recorded as received, with the total shortfall ultimately determined to exceed $25,000. Garza promptly notified Hall and placed the initial suspect—records clerk, J.T., who worked the counter where the funds were stored—on administrative leave. Garza retained an outside investigative firm, Leist & Associates, to conduct an independent administrative investigation.
The firm assigned Dennis Montejano as the lead investigator. On January 18, 2021, Montejano provided Garza with a preliminary assessment identifying R.S.,2 not J.T., as the likely culprit. The following day, Garza and Montejano briefed the mayor, Hall, and others on that preliminary finding and informed them the matter would be referred to the Fresno County District Attorney’s Office. Garza opened a criminal investigation and placed R.S. on administrative leave. Once Montejano reported his preliminary findings to the District Attorney, that office ordered the administrative investigation suspended—the criminal investigation would take precedence.
Hall’s Directive to Stop the Investigation On January 29, 2021, Hall sent Montejano a letter directing him to cease all work on the investigation and terminate all contact with the District Attorney’s Office. Hall’s directive was addressed to Montejano, not to Garza. When Montejano relayed the directive to Garza, Garza was “upset” and was determined that he was not going to allow the embezzlement to be “swe[pt] under the rug,” stating that he was legally and ethically obligated to report the criminal act.
2 This is the same R.S. who reported the missing funds.
On February 1, 2021, Garza responded to Hall in a written memorandum. He argued that the embezzlement was a serious felony requiring the Department to proceed transparently and ethically to preserve public trust, and he warned that halting the investigation could expose the City to civil liability and damage the police department’s reputation. Garza declared he intended to direct Leist & Associates to continue the administrative investigation, explicitly acknowledging that doing so meant defying Hall’s directive and potentially jeopardizing his employment, stating: “I know, I may have jeopardized my employment by going against your decision, but I must do what is legally and ethically right.” Montejano separately wrote to Hall on the same day, stressing the importance of transparency and his intent to continue cooperating with the District Attorney.
Hall replied with a letter faulting Montejano’s investigation as inadequate, describing the evidence against R.S. as of “questionable credibility,” and demanding that Montejano turn over all evidence so the City could “draw our own conclusions.” Hall also ordered R.S., whom Garza had placed on administrative leave, back to work. R.S. returned to work after three days over Garza’s objection.
Termination Garza’s three-year employment contract had expired in September 2020. The city council approved a short extension through December 2020, after which Garza continued working without a contract while renewal negotiations proceeded. On March 18, 2021, the council voted four to one against renewing Garza’s contract. On April 1, 2021, the council voted three to two to remove Garza as chief of police. Hall issued Garza a formal termination memorandum on April 5, 2021, citing “incompatibility of management styles” as the reason for removal. Hall added that the council had determined that removing Garza was “necessary for the purpose of implementing the goals or policies of the City.”
Garza testified that the April 5, 2021 memorandum was the first time anyone had raised incompatibility of management styles as a concern. Neither the mayor nor the council had previously voiced such concern. To the contrary, both had previously praised his management style and performance. II. Trial and Verdict Garza filed suit in October 2021, alleging as his sole cause of action that the City terminated him in retaliation for whistleblower activity in violation of section 1102.5. Following a 10-day jury trial, the jury returned a verdict in Garza’s favor and awarded $1 million in damages.
The jury was instructed that to prevail, Garza had to prove among other elements that his “participation in failing to investigate would result in a violation of a local rule or regulation.” The verdict form asked the jury: “Would Chief Garza’s participation in terminating the investigation result in a violation of or noncompliance with a local, state, or federal rule or regulation?” The jury answered yes to that question.
The trial court entered judgment on the jury’s verdict, from which the City appealed. The trial court then entered a post-judgment order granting Garza’s motion for attorney fees in the amount of $246,573.75, from which the City also appealed. We ordered the appeals consolidated on the City’s motion.
DISCUSSION
Garza’s section 1102.5 claim was submitted to the jury under subdivision (c) of that statute, which protects an employee who refuses to participate in an activity that would result in an actual violation of a law, rule, or regulation. The City contends Garza failed to establish that predicate legal element; that is, that his “participation in terminating the investigation” would result in any such violation. We agree, and we conclude the judgment must be reversed on this ground. But before addressing this contention, we address Garza’s threshold contention that affirmance is required because the City fails to attack an independent section 1102.5, subdivision (b), theory on appeal.
As we explain, that argument fails because no subdivision (b) theory was submitted to the jury.
Since we are reversing on the City’s first ground, we need not address its two other claims of error: that Garza failed to exhaust his administrative remedies before filing suit and that the trial court erroneously admitted evidence protected by the attorney-client privilege. I. Statutory Framework Labor Code section 1102.5, a whistleblower protection statute, forbids an employer, or person acting on behalf of the employer, from retaliating against an employee for certain acts. (§ 1102.5; Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 718 (Nejadian).) The statute operates through several subdivisions that protect different categories of employee conduct.
Subdivision (b) prohibits an employer from retaliating against an employee who discloses information to a government or law enforcement agency, or to a person with authority to investigate or correct a violation, where the employee reasonably believes the information discloses a violation of a local, state, or federal rule or regulation. (§ 1102.5, subd. (b).) Critically, subdivision (b) does not require proof of an actual violation—it suffices that the employee reasonably believed that a violation occurred. (Contreras v. Green Thumb Produce, Inc. (2025) 116 Cal.App.5th 1251, 1259–1260.) Nor is the employee required to identify a specific statute or regulation in making the disclosure. (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592–593.)
Subdivision (c) provides different protection. It prohibits an employer from retaliating against an employee who refuses to participate in an activity that would result in a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. (§ 1102.5, subd. (c).) Unlike subdivision (b), subdivision (c) requires proof of an actual violation. (Ibid.; Nejadian, supra, 40 Cal.App.5th at p. 719.) To prevail under subdivision (c), the employee must identify both the specific activity the employer directed him to participate in and the specific statute, rule, or regulation that participation in that activity would have violated. (Nejadian, at p. 719.) The question of whether the directed activity would result in a legal violation is a question of law for the court. (Ibid.) The question of whether the employer retaliated against the employee for refusing is for the jury. (Ibid.)
A plaintiff’s section 1102.5 claim is evaluated under a burden-shifting framework.
(§ 1102.6.) The plaintiff must 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…. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718; § 1102.6.) II. Garza’s Threshold Claim As a threshold matter, we address Garza’s contention that the judgment must be affirmed because the jury was instructed on—and returned a verdict under—both subdivision (b) and subdivision (c) of section 1102.5, and the City failed to challenge the subdivision (b) theory on appeal. If Garza is correct, affirmance would be required regardless of the merit of the subdivision (c) argument.
Garza’s contention requires us to interpret jury instructions, a task which calls for de novo review. (See Martinez v. Rite Aid Corp. (2021) 63 Cal.App.5th 958, 969 (Martinez).)
The jury was instructed that to find for Garza, it was required to find all of the following:
“1. That the City of Parlier was Jose Garza’s employer;
“2. That Jose Garza disclosed to the Parlier City Council and/or the City Manager he refused to terminate an investigation into embezzlement of city funds, and that Jose Garza did, in fact, refuse to terminate the investigation;
“3. That Jose Garza’s participation in failing to investigate would result in a violation of a local rule or regulation;
“4. That the City of Parlier removed Jose Garza;
“5. That Jose Garza’s refusal to terminat[e] an investigation was a contributing factor in the City of Parlier’s decision to remove Jose Garza;
“6. That Jose Garza was harmed; and
“7. That the City of Parlier’s conduct was a substantial factor in causing Jose Garza’s harm.” These seven elements were conjunctive, not alternative. The jury was required to find each one of them. There was no path to a verdict for Garza that bypassed any single element, including element 3.
Element 3 is dispositive here. It asked whether Garza’s “participation in failing to investigate would result in a violation of a local rule or regulation.” That language tracks subdivision (c) exclusively—it requires proof of an actual violation, not merely a reasonable belief that a violation occurred. Subdivision (b)’s reasonable belief standard appears nowhere in the instruction.
The special verdict form is equally unambiguous. It asked the jury two questions directly relevant to this appeal:
“Question 2: Did Jose Garza refuse to terminate an investigation?
“Question 3: Would Chief Garza’s participation in terminating the investigation result in a violation of or noncompliance with a local, state, or federal rule or regulation?”3
3 We note that element 3 of the jury instruction and question 3 of the verdict form describe the predicate act slightly differently—the former references “failing to investigate” while the latter references “participation in terminating the investigation.” The difference is immaterial. Under either formulation, Garza was required to identify a specific law, rule, or regulation that the act would have violated, and he did not do so.
Question 3 is subdivision (c) language. It asks whether terminating the investigation would result in an actual legal violation, not whether Garza reasonably believed it would. The verdict form contained no question corresponding to a subdivision (b) theory––no question about reasonable belief, and no question about disclosure to a government agency.
We pause to note that question 3 should not have been submitted to the jury at all.4 As Nejadian makes clear, whether the directed activity would result in a legal violation is a question of law for the court, not a factual question for the jury. (Nejadian, supra, 40 Cal.App.5th at p. 719.) The Directions for Use accompanying the special verdict form used in this case confirm this. (Use Note to CACI VF-4602.) They instruct that the court, not the jury, must determine whether the activity in question would result in a violation of law, and that the special verdict form should accordingly omit that element for a section 1102.5, subdivision (c), theory. (Ibid.) Because this was a question of law, the jury’s affirmative answer to question 3 does not bind us and is not entitled to deference. We determine the question independently. (See Martinez, supra, 63 Cal.App.5th at p. 969.)
Garza contends the instruction’s reference in element 2 to his having “disclosed”
his refusal to the city council and city manager—“disclosure” being the operative concept under subdivision (b)––brings subdivision (b) into the picture. It does not. Element 2 describes the factual predicate—what Garza did and told his superiors—not the legal standard. The legal standard is set forth in element 3, which unambiguously tracks subdivision (c). Reading element 2 as independently submitting a subdivision (b) theory to the jury cannot be squared with element 3, since under subdivision (b) no showing of actual violation would be required. We decline to read the instruction that way.
4 As was pointed out in the City’s memorandum of points and authorities in support of the motion for judgment notwithstanding the verdict.
The jury’s verdict was therefore a subdivision (c) verdict. The City’s failure to challenge a subdivision (b) theory that was never submitted to the jury is not a ground for affirmance. III. The City’s Position To prevail under subdivision (c), Garza was required to identify a specific statute, rule, or regulation that “participation in terminating the investigation” would have violated.5 He did not do so. Under Nejadian, this failure is fatal to his claim.
In Nejadian, the plaintiff was a county environmental health chief who refused to approve certain building plans and claimed retaliation under section 1102.5, subdivision (c). (Nejadian, supra, 40 Cal.App.5th at pp. 708–709, 718.) The jury found in his favor on that claim. (Id. at p. 718.) The Court of Appeal reversed, holding that his claim failed because he “failed to present sufficient evidence to show that the approvals would result in a violation of any specific state, federal, or local statute, rule or regulation.” (Id. at p. 720.) The court emphasized that the employee must identify both “the specific activity he or she refused to participate in and what specific statute, rule, or regulation would be violated by that activity.” (Id. at p. 719.) General references to rule or vague assertions of illegality do not suffice. (Ibid.)
The same deficiency is present here. Garza cited three provisions at trial to support his claim, none of which establishes that his “participation in terminating the investigation” would have violated the law.
First, Garza cited Government Code section 38630, subdivision (a), which provides that the police department of a city is under the control of the chief of police. That provision establishes a general organizational principle; it does not make it unlawful
5 The quoted language is taken from question 3 of the verdict form. As noted above, element 3 of the jury instruction used slightly different language—“failing to investigate”––but the difference is immaterial to the analysis.
for a police chief to accede to a city manager’s direction regarding an outside investigator.
Second, Garza cited Parlier Municipal Code section 2.15.040, which sets forth the powers and duties of the chief of police. The provision states in relevant part that the chief of police “shall direct the administration and operations of the police department and in addition to policies transmitted to the chief of police by the city manager, shall establish such other policies, directives, rules, and regulations for the administration and operations of the department as the chief sees fit.” (Parlier Mun. Code, § 2.15.040.) Like Government Code section 38630, subdivision (a), this provision grants the chief authority over the police department, but it does not prohibit the chief from accepting a supervisory directive from the city manager. To the contrary, the provision’s express reference to “policies transmitted to the chief of police by the city manager” presupposes that the city manager has authority to transmit policies to the chief. Section 2.15.040 provides no support for the proposition that the chief would violate the law by acceding to the city manager’s directive to an outside investigator to stop an investigation.
Third, Garza cited Parlier Municipal Code sections 2.10.040 and 2.10.050, establishing the duties and powers of the city manager and the relationship between the city council and the city manager, respectively. Section 2.10.040 gives the city manager “the authority to control, order and give directions to all heads of departments[.]” (Parlier Mun. Code, § 2.10.040, subd. (B).) Neither section establishes any duty on Garza’s part to continue the investigation that Hall ordered terminated, and neither makes it unlawful for him to have deferred to Hall’s direction.
Garza argues that this court should look past the specific act at issue and instead characterize his refusal more broadly as a refusal to participate in a cover-up of an illegal act. He relies on Wadler v. Bio-Rad Laboratories, Inc. (N.D. Cal. 2015) 141 F.Supp.3d 1005 (Wadler), a federal district court decision in which the parties assumed without dispute that refusing to participate in a cover-up of unlawful activities is protected activity under section 1102.5, subdivision (c).
Wadler does not assist Garza. That case involved a suit filed by the former general counsel of the defendant company for, among other claims, retaliation under section 1102.5, subdivision (c). (Wadler, supra, 141 F.Supp.3d at pp. 1008, 1010.) Plaintiff was the company’s general counsel for 25 years and alleged he was terminated after raising concerns that certain of the company’s sales practices violated the Foreign Corrupt Practices Act and challenging the conclusions of an independent investigation the board had commissioned into those concerns. (Id. at pp. 1008–1009.) The narrow question before the Wadler court was whether the plaintiff had pleaded sufficient facts to establish that he refused to participate in a cover-up. (Id. at pp. 1011–1013.) The parties agreed that a refusal to participate in a cover-up could form the basis of a subdivision (c) claim. (Id. at p. 1027.) That legal premise was simply assumed, not decided.
Because Wadler never resolved the legal question Garza asks us to answer here—
whether refusing to participate in a cover-up is protected under section 1102.5, subdivision (c), as a matter of California law—it has no precedential value on that point. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) But even setting this aside, Wadler offers Garza no refuge from Nejadian’s requirement that the employee identify a specific statute, rule, or regulation that the directed activity would have violated. None of the provisions Garza cited establishes that his “participation in terminating the investigation” would have violated the law, and the cover-up characterization of Hall’s directive does not fill that gap.
The judgment must be reversed. This conclusion moots the City’s appeal from the post-judgment order awarding Garza attorney fees.
DISPOSITION
The judgment is reversed. Consequently, the award of attorney fees to Garza is also reversed. City is awarded its costs on appeal.
SNAUFFER, J.
WE CONCUR:
LEVY, Acting P. J.
FRANSON, J.