Michael Marciano joined the Los Angeles Police Department (LAPD) in 2008. In 2014 and 2015, Marciano was a patrol officer in LAPD’s North Hollywood Division. One of Marciano’s regular patrol partners was Andrew Cota.
Between November 2014 and September 2016, Lieutenant Toledo verbally criticized Marciano and Cota’s productivity. During this period, Marciano and Cota requested to work as partners, which Toledo denied due to their low productivity. In January 2015, Marciano reported to a supervisor that Toledo imposed an unlawful ticket quota upon him due to low productivity.
In February 2015, Marciano became agitated during a conversation with Toledo, raised his voice, and requested desk duty. Marciano received desk duty in accordance with this request. Thereafter, Marciano asked his doctor to take him off work, and Marciano filed a worker’s compensation complaint for stress. That complaint was denied.
When Marciano returned from leave in March 2015, the patrol captain asked Marciano to transfer to another division and offered to put Marciano at the top of the list for the division of his choosing. When Marciano declined the offer, the matter was dropped. In November 2015, another Lieutenant advised Marciano that he and Cota could no longer work together because they were a “risk management issue.”
In May 2016, Marciano and Cota filed a complaint against the City for whistleblower retaliation in violation of Labor Code section 1102.5. The complaint made a number of allegations against the City, including that the City subjected Marciano and Cota to negative counseling sessions, threats of transfer, negative documentation about their refusal to comply with the unlawful quota, negative performance evaluations, denial of promotions, denying them to work together as patrol partners, and labeling them as risk management issues. They also alleged they lost in earnings and other benefits based on these actions.
During his deposition, Marciano admitted that many of the allegations in his complaint were not true. Specifically, Marciano admitted he never applied for any promotions, was not forced to transfer, never received negative counseling sessions or written performance evaluations, and actually was being paid more money at the time of his deposition than he was when he filed his suit. Marciano also admitted that it would be appropriate to split up two low performing officers (as was done to Marciano and Cota). Cota dismissed himself from the lawsuit following Marciano’s deposition.
The City moved for summary judgment against Marciano, which the trial court granted on two separate grounds. First, none of the City’s acts regarding Marciano constituted adverse employment actions as a matter of law. Second, Marciano failed to show any nexus between his reporting of the alleged ticket quota and any City actions referenced in the lawsuit. The trial court also granted the City’s motion for attorney fees, finding Marciano’s lawsuit was not brought in good faith, and without objectively reasonable cause. Marciano appealed both the granting of summary judgment and the award of attorney fees to the City.
On appeal, Marciano only addressed one of the trial court’s grounds for granting summary judgment—that none of the City’s actions were adverse employment actions. Marciano’s opening appellate brief made no reference, however, to the other independent reasons that the trial court gave for ruling against him, and therefore the Court of Appeal held that Marciano forfeited his ability to challenge the grant of summary judgment.
The Court of Appeal also affirmed the award of attorney fees. The Court of Appeal examined Marciano’s many admissions during deposition and found that Marciano had alleged actions in his complaint that were not true. All of these factors showed that Marciano did not bring his lawsuit against the City in good faith. Further, the allegations that were true—such as Marciano’s placement on desk duty—were either done at Marciano’s request or took place before Marciano complained of an alleged ticket quota. The Court of Appeal held that no reasonable person would believe, in good faith, that Marciano’s complaints, alone or in their totality, were substantial or detrimental enough to have materially affected any aspect of his career.
Marciano v. City of Los Angeles, 2019 WL 5690649 (2019).
Note:
This case is unpublished, and therefore generally not citable. It is a notable reminder that employers may recover attorney fees under those rare circumstances when an employee’s lawsuit is not brought in good faith or with reasonable cause.