throbber
Filed 5/23/19 Blasdell v. Space Exploration Technologies CA2/2
`NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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`has not been certified for publication or ordered published for purposes of rule 8.1115.
`
`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`SECOND APPELLATE DISTRICT
`
`DIVISION TWO
`
`
`
` B285998
`
` (Los Angeles County
` Super. Ct. No. BC615112)
`
`
`Plaintiff and Appellant,
`
`v.
`
`JASON BLASDELL,
`
`
`
`
`
`SPACE EXPLORATION
`TECHNOLOGIES, CORP.,
`
`Defendant and
`
`Respondent.
`
`
`
`APPEAL from a judgment of the Superior Court of Los
`Angeles County. William F. Fahey, Judge. Affirmed.
`
`Shegerian & Associates, Carney R. Shegerian and Jill P.
`
`McDonnell for Plaintiff and Appellant.
`
`Orrick, Herrington & Sutcliffe, Lynne C. Hermle, Julia C.
`
`Riechert, Elizabeth R. Moulton and Brian P. Goldman for
`Defendant and Respondent.
`
`
`

`

`* * * * * *
`An avionics test technician sued his former employer for
`
`
`
`wrongful termination in violation of public policy and a jury
`
`returned a verdict for the employer. On appeal, the technician
`
`challenges dozens of the trial court’s evidentiary rulings, assails
`
`several other rulings, and argues that the court’s time limits on
`
`the presentation of evidence violated due process. None of his
`
`arguments has any merit or otherwise warrants disturbing the
`
`jury’s verdict. Accordingly, we affirm the judgment.
`
`FACTS AND PROCEDURAL BACKGROUND
`
`I.
`
`Facts
`
`
`
`
`
`A.
`
`SpaceX
`
`Defendant Space Exploration Technologies, Corp. (SpaceX)
`
`develops and builds rockets. SpaceX does not sell its rockets;
`
`instead, it offers the service of launching cargo and personnel into
`
`space. In 2011, NASA became one of SpaceX’s customers.
`
`
`
`SpaceX’s engineers develop parts for their rockets, and
`
`SpaceX’s 30 to 40 avionics test technicians subject parts with
`
`electronic components to a battery of tests aimed at assessing
`
`each part’s functionality, visual appearance and resistance to the
`
`rigors of space flight (so-called “shock testing”). The engineer
`
`responsible for developing each part, sometimes with the aid of
`
`technical writers, drafts written instructions as to how each test
`
`should be conducted. Following these written instructions, the
`
`technicians “perform[] [the] test” and “record[] [the] test results.”
`
`If a technician encounters a problem during testing, he or she
`
`may (1) file an “issue ticket” detailing a problem with the part or
`
`the written instructions, or (2) make a proposed “‘redline’”
`
`correction to the instructions. The responsible engineer then
`
`decides what, if anything, to do with that feedback. All testing,
`
`feedback and responses are tracked in a database called the
`
`
`
`2
`
`

`

`“WARP Drive.” Once a part passes all tests in the avionics lab, it
`
`is subjected to further testing by SpaceX’s quality assurance
`
`personnel and by other SpaceX personnel once that part is
`
`combined with other component parts.
`
`
`
`SpaceX has promulgated an ethics policy for its employees.
`
`The policy states that SpaceX “provides only complete, accurate
`
`and truthful information to its customers” and the company
`
`“[d]oes not make false statements.” The policy further provides
`
`that “[d]isregard of the law will not be tolerated.”
`
`
`
`
`
`B. Plaintiff’s employment with SpaceX
`
`On November 1, 2010, Jason Blasdell (plaintiff) started
`
`working in SpaceX’s avionics lab as an avionics test technician.
`
`His employment was “at will.”
`
`
`
`Although plaintiff started out as a well-regarded employee,
`
`that began to change in late 2011. Around that time, plaintiff
`
`started to find that many of the engineers’ written instructions
`
`for testing parts could not be followed as written; the deficiencies
`
`were so bad, plaintiff believed, that they required him to file
`
`issue tickets and to “stop most of the work that [he] was working
`
`on.” Plaintiff’s newfound concern greatly slowed his productivity.
`
`While most avionics test technicians completed anywhere from
`
`one to seven tests per shift, plaintiff was barely able to complete
`
`one and was rapidly falling behind in his assignments. He
`
`dropped to the “bottom 10 percent” of test technicians.
`
`
`
`As plaintiff’s supervisors would urge him to be less
`
`“fixated” on the “minutiae” of the instructions, plaintiff would
`
`become “aggressive” and “loud” and sometime raise his voice. He
`
`even told his supervisors that his “main job was to watch over”
`
`and “monitor[]” the supervisors.
`
`
`
`3
`
`

`

`
`
`Toward the end of the summer of 2013, plaintiff engaged in
`
`conduct that ultimately resulted in one of his supervisors issuing
`
`him a verbal warning. That supervisor had been instructing
`
`other avionics test technicians on how to test a particular part
`
`using the written instructions when plaintiff interrupted and, in
`
`an “insubordinate and disrespectful” tone, told the supervisor
`
`that the instructions were deficient because they did not say how
`
`long the technician should wait for the test equipment to finish
`
`its analysis of the part. After the supervisor informed the other
`
`technicians that the instructions were fine, plaintiff later
`
`remarked to him that the supervisor’s testing was “all bullshit”
`
`because he “wasn’t following the [written] procedure.” That
`
`supervisor reported the verbal warning, including that plaintiff
`
`was being “argumentative” and “insubordinate,” to SpaceX’s
`
`human resources staff. Another supervisor also informed human
`
`resources that plaintiff was being insubordinate, and further
`
`reported on plaintiff’s lack of efficiency and productivity.
`
`
`
`SpaceX fired plaintiff on April 1, 2014.
`
`II. Procedural Background
`
`
`
`
`
`A. Complaint
`
`On April 1, 2016, plaintiff sued SpaceX for (1) wrongful
`
`termination in violation of public policy, (2) whistleblower
`
`retaliation in violation of Labor Code section 1102.5, and (3)
`
`defamation.1 With respect to the first two claims, plaintiff
`
`alleged that SpaceX had a “culture” of (1) “ignoring procedures
`
`and deviating from protocols in order to pass tests through and
`
`not hold up production,” and (2) “falsify[ing]” documentation “to
`
`
`Plaintiff also sued two of his former supervisors, but later
`1
`dismissed them.
`
`
`
`4
`
`

`

`make it look like [technicians] followed specific testing
`
`requirements when in fact [they] had not.”
`
`
`
`
`
`B.
`
`Summary judgment / adjudication
`
`SpaceX moved for summary judgment and/or summary
`
`adjudication on all of plaintiff’s claims. In his opposition to the
`
`motion, plaintiff for the first time articulated that he was fired in
`
`retaliation for reporting a violation of federal law—namely, that
`
`any “deviat[ion] from . . . [the] written test procedures” amounted
`
`to “falsely representing that such procedures were being
`
`successfully completed,” and hence violated title 18 of the United
`
`States Code, section 38.2 Among other things, that provision
`
`makes it a crime to “falsif[y] or conceal[] a material fact
`
`concerning any . . . space vehicle part” or “make[] . . any
`
`materially false . . . record . . . concerning any . . . space vehicle
`
`part.” (18 U.S.C. § 38(a).)
`
`
`
`The trial court granted SpaceX’s motion as to plaintiff’s
`
`defamation claim, but denied the motion as to his remaining
`
`claims.3 However, because the claim for wrongful termination in
`
`violation of public policy must be “specifically tethered” to a
`
`violation of “statutory or constitutional provision,” the court ruled
`
`that plaintiff’s remaining claims were invalid to the extent they
`
`were grounded in “complaints about personnel issues and work
`
`
`Plaintiff also for the first time alleged that the failure to
`2
`follow the written testing instructions constituted unfair
`competition in violation of Business and Professions Code section
`17200, but the trial court rejected this as a basis for proceeding
`and plaintiff does not challenge that ruling on appeal.
`
` 3
`
`Plaintiff does not challenge the trial court’s dismissal of his
`
`defamation claim on appeal.
`
`
`
`5
`
`

`

`place ‘inefficiencies’”—that is, to the extent they “challenge[d] the
`
`nature, scope or correctness of the engineering protocols and
`
`procedures of SpaceX.” Plaintiff’s claims could go forward, the
`
`court reasoned, “solely on the issues of (1) whether plaintiff had a
`
`reasonable belief that SpaceX was falsifying test documents and
`
`(2) whether plaintiff was terminated for cause or for pretextual
`
`reasons.”
`
`
`
`
`
`
`
`C. Trial
`
`
`
`1.
`
`Length of trial
`
`The matter proceeded to a 10-day jury trial, and the
`
`evidence was presented over seven days.
`
`
`
`
`
`
`
`2.
`
`Scope of trial
`
`Consistent with its earlier ruling on SpaceX’s summary
`
`judgment / adjudication motion, the court drew a distinction
`
`between evidence regarding any failures to follow SpaceX’s
`
`“internal policies and procedures” and evidence showing the
`
`falsification of documentation regarding test results; the court
`
`ruled that the former was not “relevant,” while the latter was. As
`
`to evidence of falsification of documentation regarding test
`
`results, the court ruled that plaintiff could present evidence
`
`showing that he had personally falsified such documentation or
`
`had personally witnessed other test technicians doing so, but
`
`could not present evidence that other technicians had falsified
`
`documentation based solely on plaintiff’s review of those other
`
`technicians’ testing results as reported in the WARP Drive. The
`
`court imposed this limitation because (1) plaintiff did not have
`
`personal knowledge of what actions the other technicians had
`
`performed in order to obtain the test results reported in the
`
`WARP Drive, such that any opinion he offered regarding
`
`“falsification” was impermissible, and (2) plaintiff’s testimony
`
`
`
`6
`
`

`

`regarding the contents of the WARP Drive was impermissible
`
`secondary evidence.
`
`
`
`
`
`
`
`3.
`
`Presentation of evidence
`
`Consistent with these rulings, plaintiff testified that (1) he
`
`witnessed four other SpaceX technicians complete tests on parts
`
`without precisely following the written test instructions and
`
`instead “using their own judgment and experience to change the
`
`way the test was performed,” which in his view rendered “false”
`
`the documentation of the tests being “pass[ed]”; (2) he complained
`
`about such “falsification” and “glaring errors in . . .
`
`document[ation]” to his superiors and to human resources
`
`personnel at SpaceX; (3) he was pressured by his supervisors to
`
`similarly “falsif[y]” documentation; and (4) he succumbed to that
`
`pressure and “falsified” documents in the last 30 days of his
`
`employment at SpaceX because he “pass[ed]” a part that had the
`
`word “QUAL” etched on it rather than stamped on it in orange
`
`paint. Plaintiff also testified that, in March 2014, someone else
`
`signed off on a test that he had halted using his initials. As part
`
`of its case, SpaceX clarified with plaintiff what he meant by
`
`“falsification” of documentation—namely, that a particular test
`
`“could not be performed” by looking solely to the written
`
`instructions; that technicians were “deviat[ing]” from the
`
`instructions by “us[ing] their judgment and experience to
`
`interpret” them; and that the technicians were “sign[ing] off” on a
`
`part without “not[ing]” how they had deviated from the
`
`instructions. Under plaintiff’s definition, “falsification” did not
`
`involve reporting any inaccurate test results. SpaceX also
`
`introduced evidence that none of the four technicians plaintiff
`
`named had ever falsified any test documentation; that plaintiff
`
`did not complain of “falsification” of documents to two of his
`
`
`
`7
`
`

`

`immediate supervisors; and that none of his supervisors had ever
`
`pressured plaintiff to falsify test documentation.
`
`
`
`
`
`
`
`4.
`
`Dismissal of claim and jury instructions
`
`Immediately before closing arguments, plaintiff dismissed
`
`with prejudice his claim for retaliation under Labor Code section
`
`1102.5.
`
`
`
`On the remaining claim for wrongful termination in
`
`violation of public policy, the trial court instructed the jury that
`
`“[i]t is a violation of public policy to discharge an employee” (1) “if
`
`he reported a reasonably based suspicion that his employer was
`
`violating the law” or (2) if he “refuse[d] to violate the law.” The
`
`court explained that plaintiff had the burden of proving that (1)
`
`he was employed by SpaceX; (2) that SpaceX discharged him; (3)
`
`that his “reporting of his reasonably based suspicion of a violation
`
`of law and/or his refusal to violate the law was a substantial
`
`motivating reason for his discharge,” and (4) his discharge
`
`“caused him harm.”4 Borrowing from title 18 United States Code
`
`section 38, the court then instructed that “[i]t is against the law
`
`to knowingly and with intent to defraud a third party . . . to” (1)
`
`“falsify or conceal a material fact concerning any . . . space vehicle
`
`part,” (2) “make any materially false representation concerning
`
`any . . . space vehicle part,” or (3) “to make or use any materially
`
`false writing, entry, . . . document [or] record . . . concerning any
`
`. . . space vehicle part.”
`
`
`
`
`
`
`
`5.
`
`Jury verdict
`
`By special verdict, the jury found by a 9-to-3 vote that
`
`plaintiff’s “reporting of his reasonabl[y] based suspicion of a
`
`
`The jury was instructed that the parties agreed plaintiff
`4
`had proven the first two facts.
`
`
`
`8
`
`

`

`violation of a law and/or his refusal to violate the law” was not “a
`
`substantial motivating reason for his discharge” from SpaceX.
`
`
`
`
`
`D. Post-trial matters
`
`Plaintiff moved for a new trial on several grounds, but the
`
`trial court denied his motion.
`
`
`
`After the court entered judgment, plaintiff filed this timely
`
`appeal.
`
`Evidentiary Challenges
`
`DISCUSSION
`
`We review challenges to the trial court’s evidentiary rulings
`
`I.
`
`
`
`for an abuse of discretion. (People v. Powell (2018) 5 Cal.5th 921,
`
`961.) Where a party challenges the exclusion of evidence, a
`
`single viable basis for exclusion is sufficient to affirm the
`
`exclusionary ruling. (E.g., Lockheed Litigation Cases (2004) 115
`
`Cal.App.4th 558, 565.)
`
`
`
`
`
`A. Relevance-based challenges
`
`Plaintiff argues that the trial court erred in excluding as
`
`irrelevant (1) evidence of his complaints to management that
`
`SpaceX test technicians were not complying with SpaceX’s
`
`internal mandate that technicians strictly follow written test
`
`instructions, and (2) evidence that SpaceX did not conduct an
`
`internal investigation of his complaints. Evidence is “relevant” if
`
`it has “any tendency in reason to prove or disprove any disputed
`
`fact that is of consequence to the determination of the action.”
`
`(Evid. Code, § 210, italics added.) Irrelevant evidence is
`
`inadmissible. (Id., § 350.) In assessing the propriety of the trial
`
`court’s relevance rulings, we necessarily ask two questions: (1)
`
`Did the trial court correctly determine which facts were “of
`
`consequence to the determination of the action,” and (2) did the
`
`court correctly apply its determination to the evidence at issue?
`
`
`
`9
`
`

`

`Violations of SpaceX’s internal rules requiring
`1.
`
`
`strict compliance with written test instructions
`
`
`
`a.
`Facts of consequence
`
`
`
`An employer who hires an employee “at will” may discharge
`
`that employee for any reason except for “performing an act that
`
`public policy would encourage, or for refusing to do something
`
`that public policy would condemn.” (Gantt v. Sentry Insurance
`
`(1992) 1 Cal.4th 1083, 1090 (Gantt), overruled on other grounds,
`
`Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 (Green);
`
`Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172; Lab.
`
`Code, § 2922 [defining at-will employment].) To avoid “judicial
`
`policymaking,” however, this limitation on discharging employees
`
`in violation of public policy is confined to public policies that (1)
`
`are codified in (and hence “tethered” to) a constitutional or
`
`statutory provision, (2) “inure[] to the benefit of the public,” (3)
`
`are “fundamental” and “substantial” and (4) are “well-
`
`established.” (Stevenson v. Superior Court (1997) 16 Cal.4th 880,
`
`889-890; Gantt, at p. 1095; Turner v. Anheuser-Busch, Inc. (1994)
`
`7 Cal.4th 1238, 1256 (Turner).)
`
`
`
`In this case, plaintiff’s claim for wrongful termination rests
`
`on the public policy condemning retaliation against an employee
`
`for reporting conduct that he “has reasonable cause to believe”
`
`constitutes “a violation of state or federal” law (Lab. Code,
`
`§ 1102.5, subd. (b)), where the pertinent violation of law was the
`
`federal statutory prohibition on falsifying or concealing material
`
`facts or otherwise making materially false writings, entries,
`
`documents or records regarding space vehicle parts (18 U.S.C.
`
`§ 38(a)). The public policy against retaliating against
`
`whistleblowers is sufficiently “fundamental” to support a claim
`
`for wrongful termination. (E.g., Green, supra, 19 Cal.4th at pp.
`
`76-77 [so holding].)
`
`
`
`10
`
`

`

`
`
`However, just like a direct claim for retaliatory discharge
`
`under Labor Code section 1102.5, plaintiff’s claim for wrongful
`
`termination in violation of the public policy against retaliatory
`
`discharge is also limited to discharge for reporting (1) conduct
`
`that actually violates the law or (2) conduct that plaintiff had
`
`“reasonable cause to believe” violates the law, which in this case
`
`is title 18 United States Code section 38. (Lab. Code, § 1102.5,
`
`subd. (b); Green, supra, 19 Cal.4th at p. 87 [wrongful discharge
`
`based on retaliation applies when an employee reports “an actual
`
`violation of law” or “for reporting his ‘reasonably based
`
`suspicions’ of illegal activity”]; Mokler v. County of Orange (2007)
`
`157 Cal.App.4th 121, 138 [same]; Barbosa v. IMPCO
`
`Technologies, Inc. (2009) 179 Cal.App.4th 1116, 1122 [same].)
`
`Reporting “dissatisfaction” with, disagreement over or
`
`disobedience of “an employer’s internal policies” and practices
`
`does not support a claim for retaliatory discharge (and hence does
`
`not support a retaliation-based claim for wrongful termination)
`
`because such dissatisfaction, disagreement or disobedience does
`
`not itself violate the law. (Turner, supra, 7 Cal.4th at p. 1257
`
`[“The tort of wrongful discharge is not a vehicle for enforcement
`
`of an employer’s internal policies”]; Patten v. Grant Joint Union
`
`High School Dist. (2005) 134 Cal.App.4th 1378, 1384-1385
`
`(Patten); Read v. City of Lynwood (1985) 173 Cal.App.3d 437, 444-
`
`445.) This distinction between actionable claims for wrongful
`
`termination based on actual or reasonably perceived violations of
`
`the law and non-actionable claims based solely on violations of an
`
`employer’s internal rules is an important one; without it, “the
`
`judiciary” would be “thrust . . . into micromanaging employment
`
`practices.” (Patten, at p. 1385.)
`
`
`
`11
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`

`

`
`
`Under this precedent, the trial court did not abuse its
`
`discretion in excluding as irrelevant evidence pertaining to
`
`SpaceX’s technicians’ failure to follow the company’s “internal
`
`policies and procedures” requiring strict adherence to written test
`
`instructions.
`
`
`
`
`
`
`
`
`
`b.
`
`Proper application of relevance ruling
`
`As pertinent to this appeal, the trial court excluded as
`
`irrelevant the following 10 items of evidence because those items
`
`dealt solely with the alleged failure of SpaceX employees to follow
`
`SpaceX’s internal procedures and had “nothing” to do with
`
`“issues of falsification” of documentation:
`
`
`
`●
`
`Testimony regarding plaintiff’s attendance at a
`
`“Lunch with Elon [Musk, SpaceX’s chief executive officer]” in
`
`June 2011, where plaintiff raised the issue that “[the] written
`
`test instructions . . . could not be followed.”
`
`
`
`●
`
`Exhibit 198. This was an early June 2013 e-mail
`
`chain between plaintiff and SpaceX’s president inviting her to
`
`visit the avionics testing lab, and recounting problems with
`
`“documentation workload” and “redundant data entry.”
`
`
`
`●
`
`Testimony regarding plaintiff’s June 2013 meeting
`
`with SpaceX’s president, where plaintiff showed her he was
`
`unable to obtain a passing test result on a camera part based on
`
`the written test instructions while other technicians had passed
`
`the part, and where the president allegedly responded, “Don’t tell
`
`Elon [Musk].”
`
`
`
`●
`
`Exhibit 207. This was a mid-June 2013 e-mail chain
`
`between plaintiff’s supervisor and a member of higher
`
`management regarding higher management’s visit to the avionics
`
`testing lab, which occurred at plaintiff’s request.
`
`
`
`12
`
`

`

`
`
`●
`
`Exhibit 210. This was a late June 2013 e-mail chain
`
`between plaintiff and his supervisor in which plaintiff reports
`
`that he was “told by all of my managers to stop sending emails
`
`and stop rocking the boat.”
`
`
`
`
`
`●
`
`Exhibit 253. This was an August 2013 e-mail that
`
`plaintiff sent to himself regarding the verbal warning he
`
`received, and which addresses “incorrect” “procedures.”
`
`
`
`●
`
`Exhibit 314. This was an October 2013 e-mail from
`
`Musk to all SpaceX employees in which Musk indicates he “would
`
`like to try a more accessible approach to interact with people at
`
`SpaceX.”
`
`
`
`●
`
`Exhibit 441. This was a January 2014 e-mail chain
`
`between plaintiff and a human resources employee, in which
`
`plaintiff forwarded e-mails with SpaceX’s president regarding
`
`“actual test lab efficiency problems”—namely, “too much
`
`redundant documentation,” “pretending that test procedures are
`
`already accurate,” and “technicians are pressured to deviate from
`
`policy.”
`
`
`
`●
`
`Exhibit 460-1. This was a January 2014 e-mail from
`
`plaintiff to Musk listing ten “key politic points” regarding
`
`“efficiency problems with the production line.” Among these,
`
`plaintiff recommended that “test procedures” be “more accurate,”
`
`and reported that test documentation is “still inefficient,” that
`
`the “issue ticket system is awkward,” and that “data entry” is
`
`“redundant.”
`
`
`
`●
`
`Exhibit 507. This was a March 2014 e-mail chain
`
`between plaintiff and his supervisor. The trial court admitted
`
`the portion in which plaintiff complains that “somebody used
`
`[his] initials to close out 3 shock functional tests after [he]
`
`specifically noted in [the] WARP [Drive] that [he] wasn’t willing
`
`
`
`13
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`

`

`to close them out yet,” but excluded the portions regarding
`
`SpaceX’s procedures for how approvals should be authorized in
`
`the WARP Drive system.
`
`
`
`Because the excluded exhibits (or excluded portions of
`
`exhibits) dealt solely with violation of internal SpaceX policies or
`
`procedures, the trial court did not abuse its discretion in
`
`excluding them.
`
`
`
`
`
`
`
`
`
`c.
`
`Plaintiff’s arguments
`
`Plaintiff offers what boils down to five arguments as to why
`
`the trial court should have nevertheless admitted evidence
`
`regarding violations of SpaceX’s internal policies and procedures.
`
`
`
`First, plaintiff contends that the violations of SpaceX’s
`
`internal policies and procedures were relevant because they
`
`supplied him with “reasonable cause to believe” that SpaceX
`
`employees were “falsifying” material facts and making
`
`“materially false” “documents” in violation of title 18 United
`
`States Code section 38. Thus, plaintiff continues, violations of
`
`SpaceX’s internal procedures and violations of the law were
`
`“intertwined.”
`
`
`
`We reject this contention as legally and factually invalid. It
`
`is legally invalid because California’s protection of employees who
`
`make reports of what they have “reasonable cause to believe” is a
`
`“violation of” law provides whistleblower protection when they
`
`reasonably get the facts wrong, but does not provide protection
`
`when they get the law wrong because unilateral mistakes as to
`
`what the law is are not “reasonable.” (See Carter v. Escondido
`
`Union High School Dist. (2007) 148 Cal.App.4th 922, 933-934
`
`[anti-retaliation protections do not apply when employee reports
`
`a coach’s use of protein shakes, which is not illegal]; TRW, Inc. v.
`
`Superior Court (1994) 25 Cal.App.4th 1834, 1853-1854 [anti-
`
`
`
`14
`
`

`

`retaliation protections do not apply when employee reports denial
`
`of attorney during administrative interview, which is not
`
`unconstitutional]; DeSoto v. Yellow Freight Systems (9th Cir.
`
`1992) 957 F.2d 655, 658-659 [California’s anti-retaliation
`
`protections do not apply when employee reports operation of
`
`trailers without registration papers, which is not illegal].)
`
`Plaintiff’s contention that violations of SpaceX’s internal policy
`
`requiring strict adherence to written test procedures are
`
`intertwined with his view that SpaceX was violating the law is
`
`also factually invalid. That is because at no point prior to his
`
`termination from SpaceX did plaintiff ever state or imply to his
`
`superiors at SpaceX that the “falsification” of documentation he
`
`complained of was unlawful. Accordingly, evidence showing that
`
`SpaceX was violating its own policies was not relevant to show
`
`the reasonableness of a belief in illegality that plaintiff did not
`
`hold at the time.5
`
`
`
`Second, plaintiff asserts that his reports that SpaceX’s
`
`internal procedures were being violated was relevant to prove
`
`that he was discharged for pretextual reasons—ostensibly, that
`
`he was fired for complaining about the violations of internal rules
`
`rather than fired for the reasons cited by SpaceX (that is,
`
`insubordination and lack of productivity). This assertion is
`
`without merit because none of these reasons for firing plaintiff
`
`(violation of internal rules, insubordination or lack of
`
`
`Plaintiff’s trial testimony that he now believes the
`5
`“falsification” of documents violates federal law does not fill this
`evidentiary gap because what matters is whether plaintiff was
`discharged for reporting what he reasonably believed to be
`violations of the law. (Lab. Code, § 1102.5, subd. (b); McVeigh v.
`Recology San Francisco (2013) 213 Cal.App.4th 443, 468-472.)
`
`
`
`15
`
`

`

`productivity) is protected by the statute prohibiting retaliatory
`
`discharge. Because “[t]he pertinent statutes do not prohibit
`
`lying” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 360-
`
`361), the fact that SpaceX may not have been truthful about
`
`which one of several permissible grounds for firing plaintiff
`
`underlie its decision is of no moment. It does not breathe
`
`relevance into the evidence regarding violations of SpaceX’s
`
`internal rules.
`
`
`
`Third, plaintiff posits that the trial court excluded items of
`
`evidence merely because they did not include the proper “buzz
`
`words” (such as “illegality”). To be sure, in assessing whether a
`
`plaintiff was reporting unlawful activity, courts are to focus on
`
`the “conduct” reported rather than “the label attached to th[at]
`
`. . . conduct.” (Casella v. Southwest Dealer Services, Inc. (2007)
`
`157 Cal.App.4th 1127, 1138.) But the trial court was well aware
`
`of this principle, and specifically noted that it was evaluating the
`
`relevance of the various items of evidence without insisting upon
`
`the use of any “magic words.” More to the point, the court
`
`focused on the conduct plaintiff reported in the excluded evidence
`
`and concluded that that conduct—namely, the failure to follow
`
`SpaceX’s rules requiring strict adherence to written test
`
`instructions—was not relevant to proving a suspected violation of
`
`the pertinent federal statute. This was correct.
`
`
`
`Fourth, plaintiff argues that the court mistakenly
`
`“conflat[ed] . . . materiality with relevance” and made
`
`admissibility contingent upon a showing of materiality. (People
`
`v. Lewis (2009) 172 Cal.App.4th 1426.) The court did no such
`
`thing. It concluded that evidence of violations of SpaceX’s
`
`internal procedures was not relevant; again, this conclusion was
`
`correct.
`
`
`
`16
`
`

`

`
`
`Lastly, plaintiff’s contention that the court erred in striking
`
`the portions of his complaint pertaining solely to violations of
`
`SpaceX’s internal procedures under Code of Civil Procedure
`
`section 436 lacks merit. That provision empowers a court to
`
`“[s]trike out any irrelevant . . . matter” from a pleading. (Code
`
`Civ. Proc., § 436, subd. (a); County of Los Angeles v. State Water
`
`Resources Control Bd. (2006) 143 Cal.App.4th 985, 1001.) In
`
`light of our conclusion that the court did not abuse its discretion
`
`in excluding as irrelevant evidence of violations of SpaceX’s
`
`internal policies, the court acted well within its discretion in
`
`striking as irrelevant allegations mirroring that evidence.
`
`(People v. Nelson (2008) 43 Cal.4th 1242, 1265 [“Questions of
`
`relevanc[e] . . . have never been outside of judicial competence.
`
`Determining what evidence is and is not relevant is a hallmark
`
`responsibility of the trial judge . . . .”].)
`
`Evidence that SpaceX did not conduct any
`2.
`
`
`investigation in response to plaintiff’s complaints
`
`
`
`a.
`Facts of consequence
`
`
`
`To establish a claim for retaliatory discharge (and hence a
`
`claim for wrongful termination in violation of public policy based
`
`on the same), the plaintiff-employee must prove “a causal link”
`
`between the “protected activity” he “engaged in” and his
`
`subsequent discharge by the employer. (Patten, supra, 134
`
`Cal.App.4th at p. 1384.) That “causal link” can be proven in part
`
`by evidence that the employer only half-heartedly investigated
`
`the unlawful behavior of which the employee complained
`
`because, the reasoning goes, the employer’s lack of commitment
`
`to getting to the bottom of the unlawful behavior tends to show
`
`that the employer “did not value the discovery of the truth so
`
`much as a way to clean up the mess that was uncovered when
`
`[the plaintiff] made his complaint.” (Mendoza v. Western Medical
`
`
`
`17
`
`

`

`Center Santa Ana (2014) 222 Cal.App.4th 1334, 1343-1344.)
`
`However, this principle does not apply when what the plaintiff
`
`reports to the employer is not conduct that an employer would
`
`understand to be unlawful behavior. (See Morgan v. Regents of
`
`University of California (2000) 88 Cal.App.4th 52, 69 [retaliatory
`
`discharge is a valid claim only where the employer is “aware of
`
`the protected activities”].) The failure to investigate a violation of
`
`internal procedures does not somehow transform lawful behavior
`
`into unlawful behavior; thus, the failure to investigate in such a
`
`circumstance is not relevant.
`
`
`
`In line with this precedent, the trial court ruled that
`
`SpaceX’s failure to investigate plaintiff’s complaints that other
`
`avionics test technicians were using their judgment and
`
`experience in interpreting test instructions rather than following
`
`those instructions strictly was not relevant because the
`
`complaints did not involve any unlawful conduct. This ruling
`
`was not an abuse of discretion.
`
`
`
`
`
`
`
`
`
`b.
`
`Proper application of relevance ruling
`
`As pertinent to this appeal, the trial court excluded (1) a
`
`portion of Exhibit 383, which was the handwritten notes of the
`
`SpaceX human resource staff member who met with plaintiff
`
`several times; and (2) the testimony of a legal expert who would
`
`have testified that SpaceX failed to follow standard practices in
`
`not investigating plaintiff’s complaints. These specific rulings
`
`were consistent with the court’s more general relevance ruling
`
`regarding the failure to investigate where what was reported was
`
`not a suspected violation of law. There was no abuse of discretion
`
`in excluding this evidence.
`
`
`
`
`
`
`
`18
`
`

`

`
`
`
`
`B. Competence-based challenges
`
`Plaintiff argues that the trial court erred in excluding his
`
`testimony that SpaceX avionics test technicians were “falsifying”
`
`documents when that testimony was based on (1) plaintiff’s
`
`inability to comply with the written test instruction for a
`
`particular part, and (2) the other technicians’ ability to conclude
`
`that the part

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