Buckman v. City of Los Angeles CA2/2

Filed 8/2/23 Buckman v. City of Los Angeles 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SHIRIN BUCKMAN, B305192

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC697003)
v.

CITY OF LOS ANGELES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Susan Bryant-Deason, Judge. Affirmed in part;
reversed in part and remanded.
Law Offices of Brian M. Brown, Brian M. Brown and
Rachel Goldstein for Plaintiff and Appellant.
Michael N. Feuer, Hydee Feldstein Soto, City Attorneys,
Kathleen A. Kenealy, Denise C. Mills, Chief Deputy City
Attorneys, Scott Marcus, Chief Assistant City Attorney, Blithe S.
Bock, Assistant City Attorney, and Michael M. Walsh, Deputy
City Attorney, for Defendant and Appellant.
 The City of Los Angeles (city) appeals from a judgment
entered following a court trial of this employment action brought
against the city by former city employee Shirin Buckman.
Buckman’s operative first amended complaint (FAC) alleged
seven claims against the city following her termination: (1)
retaliation for taking Family Medical Leave Act of 1993 (FMLA)
(29 U.S.C. § 2601 et seq.) leave in violation of the California
Family Rights Act (CFRA) (Gov. Code, § 12945.2), (2) disability
discrimination, (3) perceived disability discrimination, (4) failure
to prevent discrimination, (5) intentional infliction of emotional
distress (IIED), (6) failure to pay wages in violation of Labor Code
section 221, and (7) illegal collection back of employee’s wages in
violation of Labor Code sections 221 and 225.5. The trial court
found Buckman prevailed on four of the seven causes of action:
retaliation for taking FMLA leave, IIED, and the two causes of
action based on Labor Code violations. In addition to damages
and penalties, the trial court awarded Buckman attorney fees
under Government Code section 12965 (part of the California
Fair Employment and Housing Act, Gov. Code, § 12900 et seq.
(FEHA)).
The city argues the evidence does not support the judgment
in favor of Buckman on the retaliation claim, and she cannot
recover on the claim because her termination was inevitable. The
city further argues the judgment in favor of Buckman on the
IIED and the failure to pay wages claims were improper as a
matter of law.1 Finally, the city argues the trial court erred in

1 The city makes no argument concerning the judgment as to
Buckman’s seventh cause of action for illegal collection back of
employee wages, therefore we do not directly address this claim.

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failing to apportion the attorney fees to limit fees to those related
to the retaliation claim.
Buckman cross-appeals, arguing the trial court erred in
deducting from the attorney fee award 203 hours of counsel’s
travel time and declining to award a fee multiplier pursuant to
Ketchum v. Moses (2001) 24 Cal.4th 1122 (Ketchum).
We affirm the trial court’s judgment as to retaliation.
However, we reverse the judgment as to the IIED claim, as
Buckman failed to identify sufficiently extreme or outrageous
conduct as a matter of law. We also reverse the judgment as to
Buckman’s claim for unpaid wages, as we find that Buckman’s
oral agreement with personnel staff for additional sick and
vacation time was unauthorized and unenforceable as a matter of
law. We reverse the attorney fees award and direct the trial
court to reconsider the award of attorney fees on remand.

BACKGROUND
Buckman’s hiring in 2015
Buckman was first employed by the city from 2005 through
2012 in various capacities, including as a field representative for
City Councilmember Jack Weiss, and as a policy analyst with the
city’s Human Relations Commission under Patricia Villasenor.
She voluntarily left her employment with the city in 2012 to
attend Whittier Law School.
After graduating from Whittier Law School, Buckman
learned from Villasenor about a job opening at the city’s Housing
and Community Investment Department (HCID) for the
Commission on the Status of Women (CSW). There was a conflict
in evidence regarding the title of the position. While the position
was advertised as an opening for a “Project Coordinator,”

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Buckman testified she was under the impression that she was
applying for an executive director position. While she understood
the “classification” for the position was “project coordinator,” she
believed that the position title was different from the
classification. She heard various individuals refer to the position
as that of executive director. Buckman’s predecessor used the
title “Executive Director.” However, following a reorganization of
staff, HCID Executive Director Laura Guglielmo decided any new
person hired to this position would use the title “Project
Coordinator” to avoid confusion with Villasenor’s “Executive
Director” title and to more accurately describe the position.
Buckman was hired for the position on November 17, 2015,
and began her employment on January 4, 2016. She reported to
Villasenor.2 Buckman understood this was an exempt at-will
position and not a civil service job. Buckman was fired from this
position on March 9, 2017.
The CSW was established in 1975 as a commission
dedicated to promoting gender equality in Los Angeles. During
Buckman’s 2016-2017 employment at CSW, the commission was
staffed by seven appointed commissioners, including Erma
Bernard-Gibson, Pamela Bakewell and CSW President Jessica
Postigo. Among Buckman’s duties at CSW were overseeing
administrative functions and providing status reports;
facilitating and implementing the commissioners’ programs and
policy priorities; interacting with the public; raising awareness
about the CSW, including event planning and outreach; and

2 Villasenor’s full title was Executive Director for
Commissions and Community Engagement Unit. Villasenor did
not testify at trial, but portions of her deposition testimony were
read into the record.

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creating, implementing, and running the Transgender Advisory
Council (TAC), a program within the city’s Human Relations
Commission.
The oral agreement regarding sick leave and vacation pay
Marcia Ruiz, a personnel records supervisor, communicated
the job offer to Buckman, who sought to negotiate a higher
salary. However, the salary offered was determined by
Buckman’s previous city salary.
Buckman claimed she negotiated with Ruiz to use the
anniversary dates of her previous employment with the city to
calculate her accrued vacation and sick time. Ruiz denied having
made such an offer, confirming she lacked the authority to
negotiate salary or accrued time. The city took the position that
because Buckman’s gap between city employments exceeded six
months, she accrued vacation and sick time the same as a new
hire. Buckman acknowledged this condition of employment
during her orientation. However, Villasenor claims Buckman
informed Villasenor of the special oral agreement with Ruiz
regarding sick leave and vacation time shortly after Buckman
was hired.
The city’s internal payroll documents, known as PaySR
forms, reflected Buckman’s earlier anniversary dates were used
to calculate her sick leave and vacation time upon the
commencement of Buckman’s January 2016 employment.
Personnel director Alfonso Perez, the individual authorized to
approve these forms, signed off on the forms. Also Buckman
produced an October 20, 2016 letter she sent to HCID personnel
in response to HCID’s notification she had received an inaccurate
overcalculation of sick and vacation time. In the letter, Buckman
stated that in accepting the position of employment, she had

5
“reasonably relied” on the oral agreement with the personnel
department regarding sick and vacation time in lieu of the
increase in pay she had sought.
The city disputed the existence of an oral agreement. Ruiz
denied having offered Buckman extra sick and vacation time and
stated she had no authority to make such an offer. While the city
acknowledged the PaySR form automatically populated with an
individual’s dates from previous employment, the city argued this
was a flaw in the system that has since been corrected. The city
argued Perez’s approval of the forms with the previous dates was
an oversight. Perez and Ruiz each testified they failed to notice
that Buckman’s PaySR contained her old employment dates and
confirmed those dates should have been updated.
The city’s concerns about Buckman
Soon after Buckman commenced her January 2016
employment, she began violating various policies of the city and
HCID. Abigail Marquez, HCID’s assistant general manager, and
Julie O’Leary, the chief management analyst and division chief
for HCID, had several communications with Buckman and
Villasenor regarding these violations. Guglielmo was concerned
that Villasenor’s unit lacked appropriate supervision.
Buckman regularly violated the city’s parking policy to
secure parking for herself. In addition, although Buckman was
informed her title was “Project Coordinator,” Buckman
continuously used the title “Executive Director” in documents
and correspondence despite being instructed to stop. Buckman
and Villasenor also improperly entered Buckman’s work hours
using a “Flextime” system that did not work within the city
because the city was required under the Fair Labor Standards
Act of 1938 (29 U.S.C. § 201 et seq.) and the collective bargaining

6
agreement to pay overtime for after-hours work. Under the
“Flextime” system, if Buckman worked more than eight hours in
one day, she worked less than eight hours in another day.
Buckman was informed, however, that the city was obligated to
pay overtime for after-hours work, and any such work had to be
approved in advance in writing.
Buckman lobbied for a city cell phone in order to be
available and conduct work after hours. Buckman’s request was
denied, as her position was not intended for after-hours work.
In March 2016, a meeting was requested by Guglielmo and
held regarding concerns about Buckman. The meeting was
attended by Marquez, O’Leary, Villasenor and Buckman. The
meeting’s goal was to ensure Buckman complied with HCID
policy and thus avoid termination. The primary issues addressed
were Buckman’s title and overtime.
Guglielmo found Buckman’s attitude and behavior at the
March 2016 meeting to be defiant and hostile. O’Leary also noted
Buckman had a “snotty[,] saccharin attitude.” Marquez observed
Buckman’s unpleasant demeanor and eye-rolling and reported
this behavior got worse in the weeks and months following the
meeting.
At the March 2016 meeting, Buckman confirmed her title
was Project Coordinator and she would only be available during
business hours. Guglielmo e-mailed Buckman the necessary
forms for requesting overtime or participation in events and
suggested submitting such requests a week in advance.
Buckman, however, continued violating the city and HCID
policies. She continued to use the title “Executive Director” on
official documents, continued to request and take unapproved
overtime, resulting in a dispute over whether Buckman would be

7
paid for the unapproved overtime. Buckman also continued to
violate the parking policy.
O’Leary suggested to Marquez that Buckman be
terminated. Marquez contacted the chief of staff at the mayor’s
office to discuss their concerns.
After the March 2016 meeting, HCID management
continued to receive complaints about Buckman’s lack of support
for the CSW. Marquez reported Buckman had a consistently
dismissive and disrespectful attitude at CSW meetings.
Guglielmo observed Buckman’s hostile and aggressive attitude at
a large HCID staff meeting. In the summer of 2016, CSW
President Postigo recalled Buckman telling the commission the
HCID was evil and making her life a living hell. She complained
about both O’Leary and Marquez. Postigo frequently reported
her frustrations about Buckman to Marquez, O’Leary, Guglielmo,
Villasenor, and HCID General Manager Cervantes, including
that Buckman was spending too much time creating and
supporting the TAC to adequately support the CSW. O’Leary
also received complaints of Buckman being on her cell phone
during CSW’s monthly meetings. Postigo complained that a
reception for Saudi Arabian officials failed due to Buckman’s
neglect, and the CSW’s efforts to work with the Los Angeles
Police Department (LAPD) on human trafficking issues failed
because Buckman was so antagonistic the assigned LAPD
detective refused to work with Buckman. Commissioner
Bakewell testified that while she was initially satisfied with
Buckman, she knew other commissioners were not happy with
her performance. Buckman complained to the CSW she felt
confined. She was unhappy about not getting a cell phone or her
desired title and with her inability to attend after-hours events in

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overtime. Bakewell also noted that Buckman was unprofessional
through body language such as smirks, eye-rolling, and huffing
and puffing. Bakewell noted, however, when Buckman was
available for CSW work, she generally was credited with doing
good work.
By about June 2016 Marquez agreed Buckman should be
terminated. Marquez noted the negative feedback from CSW as
well as her personal observations of Buckman and the repeated
policy violations. Guglielmo recalled that she agreed Buckman
should be terminated by late summer 2016. HCID personnel
director Perez estimated he and Guglielmo discussed Buckman’s
potential termination 15 to 20 times in 2016. Perez monitored
the discussions to make sure the decision was consistent with
policy. Guglielmo cited Buckman’s poor administration of
multiple commissions. In light of Buckman’s close working
relationship with Villasenor, Guglielmo decided Buckman and
Villasenor should be fired at the same time. As a result,
Villasenor was not notified of the decision to fire Buckman.
HCID General Manager Cervantes agreed that Villasenor and
Buckman should be terminated.
O’Leary began preparing a formal recommendation
memorandum to terminate Villasenor. While she initially
started preparing a similar memorandum regarding Buckman, it
was later decided to be unnecessary because Buckman did not
have a long tenure with the city like Villasenor.
Villasenor’s positive evaluation of Buckman
In mid-April 2016 Villasenor wrote a positive evaluation of
Buckman. The city argues the evaluation was not properly
prepared, received or reviewed.

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 The April 2016 evaluation gave Buckman an overall rating
of “[o]utstanding.” Villasenor rated Buckman’s performance as
“outstanding” on seven of the eight factors listed. On one factor,
“Personal Relations,” Villasenor rated Buckman as “Exceeds
Standard.” (Boldface and some capitalization omitted.)
The city’s removal of Buckman’s prior sick leave and
vacation pay
O’Leary noticed Buckman had excessive accrued benefits
and contacted the human resources and payroll departments. In
October 2016, Ruiz confirmed the failure to update Buckman’s
PaySR resulted in excessive unearned vacation and sick hours.
Perez admitted to previously missing this error, but noted to
leave it would violate policy. Therefore, Perez instructed Ruiz to
inform Buckman and to correct Buckman’s PaySR to reflect hours
actually earned. Correcting Buckman’s anniversary dates
eliminated 105.33 hours of vacation time and 15.5 hours of sick
time. Buckman had already used some of the unearned vacation
and sick hours, in an amount equivalent to $2,878.89, which the
city considered an overpayment.
In an October 19, 2016 phone call from Ruiz, Buckman was
informed of an error in the calculation of her sick leave and
vacation benefits and that the extra benefits would be removed.
Later that day, Ruiz e-mailed Buckman that her vacation and
sick leave anniversary dates had been “inaccurately overstated”
and her leave balances would be adjusted. Ruiz noted the error
had resulted in an overpayment and Ruiz offered to discuss
available options.
On October 20, 2016, Buckman sent Ruiz an e-mail and a
letter arguing she was entitled to the disputed sick leave and
vacation pay. The communications included copies of her PaySR

10
form and paystubs showing the accrual amounts. The letter
outlined her claimed prior conversations with “HCID Personnel,”
including Ruiz, promising that Buckman’s sick and vacation
anniversary dates would be restored to the date of her previous
employment with the city, and her reliance on this information in
accepting employment with the city. Buckman declined the city’s
request to repay the purported overpayments and requested that
her sick and vacation pay amounts be restored.
Ruiz denied promising Buckman any special arrangement
regarding her vacation and sick hours. Ruiz testified she had
never done such a thing with any prospective employee and had
no authority to do so.
On November 8, 2016, Buckman received an e-mail from
HCID personnel supervisor Nanet Rondina claiming an
overpayment of $2,878.89 had been made. The e-mail attached
various forms outlining Buckman’s options for repayment of this
amount, including an employee payroll deduction consent form.
Buckman declined to sign the form.
Buckman’s grievance and appeal
Following the city’s actions regarding her leave time,
Buckman filed a grievance against the city through her union
representative, Marleen Fonesca. The grievance was heard on
November 17, 2016, by HCID personnel staff member Arlene
Johnson. Buckman’s initial grievance was denied.
Buckman appealed HCID’s ruling. The appeal was heard
on January 4, 2017, by Guglielmo, who did not have authority to
grant Buckman the additional vacation and sick time she was
seeking, because it would be “outside of the City’s policies.”
Buckman testified Guglielmo said she thought Buckman was
lying about the “promise” Ruiz allegedly made to Buckman

11
regarding her leave time during the employment negotiations.
Buckman informed Guglielmo the hearing was making her ill,
saying she could not eat or sleep and was “bleeding from the
backside.” Unbeknownst to Buckman, Guglielmo remarked to
HCID Senior Personnel Analyst I Stephen Cross, “‘Well, she’ll file
for FMLA now,’ something to that effect.” Guglielmo also
suggested Buckman’s statements about bleeding during the
hearing were suspicious and suggested Buckman may file a
“trumped-up” FMLA filing. Cross testified Guglielmo then
directed him to prepare the necessary forms in case Buckman did
file for FMLA leave.
The appeal was never decided due to Buckman’s
termination.
Buckman’s treatment and FMLA leave
Buckman began treating with psychologist Melissa Bagwell
in November 2016 as a result of ongoing stress due to the
circumstances at HCID and studying for the bar exam. Her
symptoms included bleeding, vomiting, diarrhea, not eating, not
sleeping, chest pains, dizziness, nightmares, anxiety, and panic
attacks. After five visits, Dr. Bagwell requested Buckman be
placed on FMLA leave from January 10, 2017, through
February 28, 2017. Dr. Bagwell’s request was based on both
work and personal stressors. The city approved the FMLA leave
on January 10, 2017. During her FMLA leave Buckman took the
state bar exam.3

3 Villasenor was also on leave around the same time as
Buckman.

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 Perez stated the city does not terminate anyone on medical
leave. Thus, Buckman’s FMLA leave put the city’s plans to
terminate Buckman and Villasenor on hold.
Marquez advised the CSW commissioners that Buckman
was on leave and Deborah Wood was assigned to take over her
duties.
Commissioner Postigo was frustrated that Buckman left on
leave without notice and without providing access to the existing
documents related to an upcoming event. Wood remedied the
situation, and Marquez reported things ran smoothly when
Villasenor and Buckman were on leave.
Villasenor returned from leave in February 2017.
Buckman returned from FMLA leave on March 1, 2017. On the
day Buckman returned from leave, Marquez, O’Leary and Perez
met about the timing of terminating Buckman and Villasenor
now they both were at work. O’Leary’s notes reflected that CSW
commissioner feedback was a primary basis for the termination.
Marquez delivered the formal written recommendation for
termination to Cervantes, Guglielmo, and Perez on March 8,
2017.
On March 9, 2017, Marquez and Cross informed Buckman
of her termination. Consistent with city policy for at-will
employees, Marquez did not elaborate on the reasons for the
termination. Buckman testified during the meeting, she was
informed that there was going to be a reorganization in the
department, and that her workload was going to be redistributed.
In the memorandum terminating her employment, the only
reason given was Buckman’s status as an at-will employee.
Villasenor was terminated at the same time at a meeting
with O’Leary and Perez. Buckman and Villasenor met in the

13
lobby on their way out. Villasenor informed Buckman that she
had also just been terminated.
Buckman testified she was shocked and upset by the
termination and claimed emotional distress from being
terminated.

PROCEDURAL HISTORY
The pleadings
Buckman filed her initial complaint for damages against
the city on March 6, 2018. She initially asserted eight causes of
action: (1) retaliation for exercising CFRA leave in violation of
FEHA, Government Code section 12940; (2) discriminatory
termination in violation of the CFRA, Government Code section
12945.2; (3) disability discrimination in violation of FEHA; (4)
discrimination based on perceived disability in violation of
FEHA; (5) failure to take reasonable steps to prevent
discrimination; (6) IIED; (7) failure to pay wages in violation of
Labor Code sections 202, 203, 210, 221 and 227.3; and (8) illegal
collection back of employee’s wages in violation of Labor Code
section 221.
On May 4, 2018, the city filed a demurrer asserting the
complaint failed to state a cause of action on various grounds.
Among other things, the city argued that Buckman failed to state
a cause of action for IIED because such a cause of action was not
available against public entities and the claim was barred due to
workers’ compensation exclusivity. The trial court overruled the
demurrer as to the IIED claim.
The operative FAC, filed June 7, 2018, alleged seven causes
of action: (1) retaliation for taking CFRA medical leave, (2)
disability discrimination, (3) perceived disability discrimination,

14
(4) failure to prevent discrimination, (5) IIED, (6) failure to pay
wages in violation of Labor Code sections 221 and 227.3, and (7)
illegal collection back of employee’s wages in violation of Labor
Code section 221.
On June 26, 2018, the city filed a general denial and 40
affirmative defenses.
Trial and judgment
The bench trial on Buckman’s seven causes of action
commenced on October 21, 2019, and continued for 15 partial
days.
On January 31, 2020, the trial court entered judgment in
favor of Buckman and against the city on the following four
causes of action: (1) retaliation in violation of the CFRA, (2) IIED,
(3) failure to pay wages pursuant to Labor Code sections 221 and
227.3, and (4) illegal collection back of employee’s wages
pursuant to Labor Code section 221. Buckman’s causes of action
for disability discrimination, discrimination based on perceived
disability and failure to take reasonable steps to prevent
discrimination were decided in favor of the city.
The trial court awarded Buckman (1) past economic
damages of $230,085 on her first cause of action for retaliation;
(2) general damages of $50,000 for her IIED claim; and (3) loss of
accrued sick leave and vacation pay, plus civil penalties and
interest, on her sixth and seventh causes of action for Labor Code
violations of $8,221.23; for a total sum of $288,306.23.
The court noted Buckman never directly received any
criticism of her performance or any negative performance reviews
or disciplinary warnings. Buckman’s only performance review
was Villasenor’s April 2016 review in which she received an
overall review of “[o]utstanding.” The court further noted one of

15
the claims the city used to justify Buckman’s termination was
that three CSW commissioners were extremely critical of
Buckman’s performance. The court observed the testimony of
these commissioners at trial undermined this claim. Further,
during discovery and at trial, the city used shifting and
contradictory reasons to support its decision to terminate
Buckman’s employment. For example, in response to Buckman’s
April 2018 interrogatories, the city claimed Buckman’s
termination was based on complaints from commissioners about
her work, Buckman’s misappropriation of parking privileges, and
her hostile and inappropriate behavior towards fellow employees.
In August 2018, the city provided supplemental responses adding
new reasons for Buckman’s termination, including inappropriate,
sarcastic comments to her superiors; argumentative behavior
about her salary placement; use of the title Executive Director;
request for a cell phone; continued tardy submission of overtime
requests on short notice after the overtime work was performed;
improper requests for parking; and requests from Commissioners
Postigo, Bakewell and Bernard-Gibson that she be reassigned
due to their difficulty working with Buckman. The trial court
found testimony from the city’s witnesses showed the claimed
reasons for Buckman’s termination were implausible and
pretextual.
In support of its decision in favor of Buckman on her
retaliation claims, the trial court found the following facts:
Guglielmo was one of those who recommended Buckman’s
termination; Guglielmo presided over Buckman’s grievance
appeal regarding the removal of her accrued sick and vacation
pay; and Guglielmo commented to Cross after the grievance
appeal meeting, “Well she’ll file for FMLA now.” Further,

16
O’Leary’s handwritten notes from the March 1, 2017 meeting
establish the decision to terminate Buckman was made on
March 1, 2017, the day Buckman returned from her medical
leave. The same notes contradicted the myriad reasons given by
the city for Buckman’s termination and cite only “Commissioners
feedback” as the reason. The timing of Buckman’s termination,
nine days after she returned from FMLA leave, also suggested
the termination was retaliatory. The court cited Bareno v. San
Diego Community College Dist. (2017) 7 Cal.App.5th 546, 571
(Bareno), for the proposition that “‘[w]hen an adverse
employment action “follows hard on the heels of protected
activity, the timing often is strongly suggestive of retaliation.”’”
The court found Buckman showed she was harmed by the
city’s retaliatory conduct based on Buckman’s testimony
describing her physical and emotional stress from the city’s
actions.
As to Buckman’s cause of action for IIED, the court found
the city subjected Buckman to stress for acts including removing
the title Executive Director, removing accrued sick leave and
vacation pay, being subjected to Guglielmo calling her a liar in
front of other HCID staff and Buckman’s union representative,
and refusing to pay for approximately 20.5 hours of worked
overtime. Further, Buckman’s testimony showed ongoing
physical and emotional symptoms stemming from the city’s
actions. Based on this, the trial court found Buckman had
sustained her burden of proof on each of the elements of a claim
for IIED.
As to Buckman’s claim for unpaid wages, the court found
the city was liable to Buckman for unpaid wages for her accrued
sick pay and vacation leave, citing the following evidence: the

17
PaySR form showing using prior anniversary dates of February 5,
2006, and October 1, 2006, for her sick pay and vacation leave;
the trial testimony the form was prepared by city employees and
approved by Perez; and five separate entries reflecting the prior
work anniversary dates. For the pay period ending October 15,
2016, there was a deduction of 105.33 hours of vacation time and
15.50 hours of sick leave from Buckman’s pay stub. The court
found credible Buckman’s testimony that she was orally
promised, as a condition of accepting re-employment with the
city, her sick and vacation dates would be restored to her prior
work anniversary dates in lieu of a higher salary. The court
noted Labor Code section 221 provides that “[i]t shall be unlawful
for any employer to collect or receive from an employee any part
of wages theretofore paid by said employer to said employee.”
Further, Labor Code section 227.3 requires all of an employee’s
vested unused vacation time be paid to that employee upon the
termination of the employee’s employment. The court cited
Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 776,779,
and Johnson v. Contra Costa County Fire Protection Dist. (1972)
23 Cal.App.3d 868, 873, as authority that vacation pay and sick
leave are earned wages that vest upon performance. The court
stated there was no dispute that Buckman’s accrued vacation
time and sick leave were removed from Buckman’s paycheck and
never repaid, and thus, Buckman met and sustained her burden
of proof of her claim for unpaid wages.
Finally, as to Buckman’s cause of action for illegal
collection back of employee’s wages, the trial court cited the same
evidence as for her claim for unpaid wages. The court found the
evidence showed the city paid Buckman wages in the form of
accrued vacation pay and sick leave, and the city unlawfully

18
collected back her accrued vacation and sick leave without
obtaining a court order or Buckman’s written consent. Thus, the
city acted in violation of Labor Code section 221. As a violation of
Labor Code section 221 results in civil penalties, the court found
Buckman was entitled to such penalties as well as interest on
those penalties pursuant to Labor Code section 225.5, subdivision
(b).
The city filed its notice of appeal from the judgment on
March 23, 2020.
Attorney fees
On March 27, 2020, Buckman moved for attorney fees
pursuant to Government Code section 12965 and Code of Civil
Procedure section 1021.5. Buckman claimed a lodestar amount of
$1,065,358.75. Buckman also sought a multiplier of at least 2.0,
which increased the fees sought to $2,130,717.50.
The hearing was held on June 25, 2020. The trial court
granted the motion in part and denied it in part, finding that
Buckman failed to identify any interest beyond pursuing her own
personal economic interest, thus an award of fees under Code of
Civil Procedure section 1021.5, the private attorney general
statute, was inappropriate. The trial court also reduced some of
the requested hours and added some for drafting the reply and
appearing at the hearing. Ultimately, the trial court awarded
$958,808.75.
The notice of ruling on Buckman’s fee motion was filed and
served on June 29, 2020. On July 14, 2020, the trial court issued
its order granting in part and denying in part Buckman’s motion
for attorney fees. On July 23, 2020, the city appealed the
postjudgment attorney fee award. On August 4, 2020, Buckman
cross-appealed.

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 On October 1, 2021, this court consolidated the city’s appeal
from the underlying judgment with the appeal and cross-appeal
on the attorney fee order.

DISCUSSION
I. The city’s appeal from the judgment
A. Retaliation claim
The city challenges the trial court judgment in favor of
Buckman on her retaliation claim. The city’s appeal on this issue
raises two factual questions: whether Buckman’s FMLA leave
was a substantial motivating reason for her discharge and
whether any alleged retaliatory intent actually caused Buckman
any injury.
1. Standard of review
As the city’s claims are factual, we apply the substantial
evidence test. Under this standard, our review “begins and ends
with a determination of whether there is any substantial
evidence . . . to support the trial court findings.” (Schmidt v.
Superior Court (2020) 44 Cal.App.5th 570, 582.) We accept the
evidence most favorable to the judgment and assume that the
contrary evidence was not sufficiently credible to be accepted by
the trier of fact. (In re Michael G. (2012) 203 Cal.App.4th 580,
595.) All evidentiary conflicts must be resolved in favor of the
prevailing party, so long as the evidence is sufficient to support
the judgment. (Board of Administration v. Wilson (1997) 52
Cal.App.4th 1109, 1127.) Further, we must indulge all
reasonable inferences in support of the judgment, even if a
contrary determination could likewise be upheld. (County of Kern
v. Jadwin (2011) 197 Cal.App.4th 65, 72-73.) If substantial

20
evidence supports the trial court’s factual findings, those findings
must not be disturbed on appeal. (Schmidt, supra, at p. 582.)
2. Applicable law
Buckman brought her claim for retaliation for taking
protected medical leave under FEHA (Gov. Code, § 12900 et seq.),
which prohibits employers from retaliating against an employee
for taking a qualified medical leave under the CFRA or the
FMLA. (Gov. Code, § 12945.2, subd. (k).) Section 12945.2,
subdivision (k) provides that it is unlawful “for an employer to . . .
discharge . . . any individual because of the following . . . [¶] [a]n
individual’s exercise of the right to family care and medical leave
provided by subdivision (a).”
The elements of a cause of action for retaliation in violation
of CFRA are “‘“(1) the defendant was an employer covered by
CFRA; (2) the plaintiff was an employee eligible to take CFRA
[leave]; (3) the plaintiff exercised her right to take leave for a
qualifying CFRA purpose; and (4) the plaintiff suffered an
adverse employment action, such as termination, fine, or
suspension, because of her exercise of her right to CFRA
[leave].”’” (Bareno, supra, 7 Cal.App.5th at p. 560.)
The burden-shifting framework established in McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792, 802-805 (McDonnell
Douglas), is applicable to Buckman’s retaliation claim under
FEHA. (Moore v. Regents of University of California (2016) 248
Cal.App.4th 216, 248.) Under the McDonnell Douglas analysis,
the plaintiff is first required to establish a prima facie case of
retaliation. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1042.) Once the employee establishes the prima facie case,
the employer must offer a legitimate, nonretaliatory reason for
the adverse employment action. (Ibid.) If the employer provides

21
a legitimate, nonretaliatory reason for the adverse action, the
presumption of retaliation disappears, and the burden shifts back
to the employee to prove intentional retaliation. (Ibid.) The
employee must then produce evidence that the employer’s stated
reasons for the adverse action were merely pretextual. (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 333-334.)
In order to establish a prima facie case of retaliation under
the McDonnell Douglas burden-shifting analysis, a plaintiff must
show that he or she engaged in a protected activity, suffered an
adverse employment action, and that “‘a causal link existed
between the protected activity and the employer’s action.’”
(Bareno, supra, 7 Cal.App.5th at p. 560.) A “close temporal
connection” between a medical leave and an adverse employment
action can be “‘“strongly suggestive of retaliation.”’” (Id. at
p. 571.)
3. Substantial evidence supported the trial court’s
determination that Buckman’s taking of leave was
a substantial motivating reason for her discharge
The city does not dispute that Buckman was eligible for
and took a protected medical leave. The city challenges the
court’s factual determination that Buckman’s protected act of
taking FMLA leave was a substantial motivating factor for her
termination. As set forth below, we find that substantial
evidence supports the court’s determination.
The trial court cited several facts established at trial as
support for its decision that the city terminated Buckman’s
employment in retaliation for taking FMLA leave. The trial court
relied heavily on the timing of Buckman’s termination, observing
the handwritten notes of one of the decisionmakers, O’Leary,
“established that the decision to terminate . . . Buckman and her

22
supervisor . . . was made on March 1, 2017, the very day that
[Buckman] returned from her medical leave.” While the city
provided evidence the decision was made at an earlier time, the
trial court was not required to credit that evidence. O’Leary’s
notes constitute substantial evidence, thus we must accept that
evidence and assume that the contrary evidence was not
sufficiently credible to be accepted by the trier of fact. (In re
Michael G., supra, 203 Cal.App.4th at p. 595.) The court was
entitled to infer from the timing of Buckman’s termination that it
was retaliatory. “‘When an adverse employment action “follows
hard on the heels of protected activity, the timing often is
strongly suggestive of retaliation.”’” (Bareno, supra, 7
Cal.App.5th at p. 571.)
In addition to the timing of Buckman’s termination, there
was evidence of negative reactions to Buckman’s decision to take
leave. Guglielmo, one of those who recommended Buckman be
terminated and who also presided over Buckman’s grievance
appeal, commented to Cross, “Well she’ll file for FMLA now,”
following the grievance appeal meeting where Buckman stated
she was “bleeding out of every orifice.” While the city argues
nothing about this comment suggests a motive to retaliate, the
trial court was entitled to infer this comment reflected a negative
perspective on Buckman’s anticipated request for leave. In
addition to Guglielmo’s comment, during Buckman’s leave,
Commissioner Postigo expressed frustration that Buckman had
taken medical leave. Again, the city argues that nothing about
this comment suggests a retaliatory motive for Buckman’s
termination. However, the trial court was entitled to infer that
Guglielmo’s and Postigo’s frustrations at Buckman for taking
leave resulted in a retaliatory termination. This is particularly

23
the case where, as here, the termination followed closely after
Buckman’s leave. The trial court’s inferences were reasonable
under the circumstances, and we must indulge all reasonable
inferences in support of the judgment. (County of Kern v.
Jadwin, supra, 197 Cal.App.4th at pp. 72-73.)
While the city offered nonretaliatory reasons for Buckman’s
termination, there was evidence that such reasons were
pretextual. Pretext may be inferred from factors such as “‘the
timing of the company’s termination decision, by the identity of
the person making the decision, and by the terminated
employee’s job performance before termination.’” (Moore v.
Regents of University of California, supra, 248 Cal.App.4th 216,
239.)
In addition to the temporal proximity of the city’s
termination of Buckman to her FMLA leave, the court described
contradictions and inconsistencies in the city’s evidence related to
the timing of, and reasons for, the decision to terminate her. The
court found O’Leary’s notes from the March 1, 2017 meeting,
which cited “Commissioners feedback” as the reason for
Buckman’s termination, contradicted the various other reasons
the city gave for Buckman’s termination. In addition, the three
commissioners who testified at trial “either failed to support or
contradicted the City’s contentions regarding the bases for
[Buckman’s] termination.” Prior to taking leave, Buckman never
received any criticism for her performance or any negative
performance reviews or disciplinary warnings. In her only
performance review, Buckman received an overall review of
“[o]utstanding.” The court was permitted to infer from this
evidence that the city’s stated reasons for Buckman’s termination
were pretextual. (Soria v. Univision Radio Los Angeles, Inc.

24
(2016) 5 Cal.App.5th 570, 595 [noting that “conflicts and
inconsistencies in the evidence supporting an employer’s
proffered legitimate reason for termination . . . may be probative
when considered together with other factors”].)
As to the timing of the decision to terminate Buckman, the
court found the city also presented “inconsistent and shifting
reasons as to when the actual decision to terminate [Buckman]
was made.” The city argues the “undisputed” evidence showed
the decision to terminate Buckman was made in September 2016.
The city argues the court’s determination that the decision was
made at a March 1, 2017 meeting was “based on a speculative
interpretation” of O’Leary’s notes of the meeting. The city
provides a detailed analysis of its perspective that the court’s
decision was based on a “mischaracterization” of the evidence.
It is not our place to re-evaluate the evidence or reconsider
the credibility of testimony. (People v. Rodriguez (2021) 66
Cal.App.5th 749, 766.) O’Leary’s March 1, 2017 notes confirm
the decision was made to let Buckman go first “based on
commissioners’ feedback.” There is nothing speculative about the
trial court’s factual finding that this was the first time it was
definitively decided that Buckman would be terminated. The
trial court noted the previous testimony regarding the decision to
fire Buckman was contradictory and inconsistent. The trial court
was entitled to rely on O’Leary’s written notes and reject all other
evidence.
The city argues only Cervantes had authority to make the
final decision to terminate Buckman and that Cervantes was not
present at the March 1, 2017 meeting. The city notes Cervantes
was present during discussions in August and September 2016
when it was decided Buckman’s employment should be

25
terminated. However, Cervantes was rarely mentioned during
the trial testimony regarding Buckman’s termination. The trial
court was entitled to assume the decision was made without
Cervantes present, regardless of whether that was proper
procedure.
The trial court described “[w]eaknesses, implausibilities,
shifting reasons and direct contradictions” regarding the city’s
claimed reasons for terminating Buckman’s employment.
(Boldface omitted.) In doing so, the court outlined in detail the
city’s responses to the first set of form interrogatories versus the
supplemental responses, which changed the reasons for
Buckman’s termination. The court noted the testimony from
three commissioners contradicted the city’s assertions regarding
rampant complaints and performance issues.
The city objects to the trial court’s use of its discovery
responses in making its decision on the retaliation issue. The
city claims the trial court improperly based liability on the good
faith efforts of litigation counsel in providing answers in
discovery. The city admits its first round of discovery responses
were incomplete. They were submitted without prejudice to
serving supplemental responses with facts that were
subsequently discovered, recalled, or “which, in good faith, were
overlooked or omitted.” The city asserts the supplemental
responses were provided based on the ongoing investigation and
the receipt of additional information from witnesses. Buckman
never sought to bind the city to its original responses. The city
argued its supplemental responses did not contradict its earlier
responses, but merely elaborated on further reasons for
Buckman’s termination. We decline to address in detail the
evidence set forth in the city’s discovery responses. Even

26
assuming the trial court improperly relied on the discrepancies
between the two responses, there was substantial evidence in the
record supporting the trial court’s decision that Buckman’s
termination resulted from retaliation for her decision to take
FMLA leave. The city’s shifting rationales for her termination
may be probative when considered together with other factors.
(Soria v. Univision Radio Los Angeles, Inc., supra, 5 Cal.App.5th
at p. 595.)
Finally, the city cites Harris v. City of Santa Monica (2013)
56 Cal.4th 203, 241 (Harris), for the proposition that even when
an employee shows discrimination or retaliation was a
substantial factor motivating his or her termination, an
“employer is entitled to demonstrate that legitimate,
nondiscriminatory reasons would have led it to make the same
decision at the time.” Under these circumstances, “[i]f the
employer proves by a preponderance of the evidence that it would
have made the same decision for lawful reasons, then the
plaintiff cannot be awarded damages, backpay, or an order of
reinstatement.” (Ibid.) The city argues even if there was an
improper motive, the evidence showed that Buckman’s
termination was inevitable.
Harris is distinguishable. In Harris, the terminated
employee, a bus driver, had notable performance-related
problems prior to her termination. She had been involved in two
preventable accidents while driving her bus, and also had two
“miss-outs” on her attendance record, which meant she failed to
show up for her assigned shift without giving her supervisor
adequate notice. (Harris, supra, 56 Cal.4th at p. 212.) After her
first three months as a probationary driver, Harris was given an
evaluation with an overall rating of “‘further development

27
needed.’” (Ibid.) On the same day Harris provided her
supervisor with a doctor’s note permitting limited restrictions to
her work, Harris’s name appeared on a list of probationary
drivers who were not meeting standards for continued
employment. (Id. at p. 213.)
Here, in contrast, Buckman had no formally noted objective
deficiencies or shortcomings at any time. She had never been
informed her performance was anything other than adequate,
and her one performance review gave her an overall rating of
outstanding. While the evidence in Harris was sufficient to show,
by a preponderance of evidence, that the plaintiff would have
been terminated regardless of any discriminatory motive, the
evidence here was not as strong. On this record, the trial court
was not required to find that Buckman’s termination was
inevitable regardless of any retaliatory motive.
B. IIED
The city argues the trial court erred as a matter of law in
deciding Buckman’s IIED claim in her favor. We agree. For the
reasons set forth below, we reverse the judgment as to this cause
of action.
1. Applicable law
The elements of a cause of action for IIED are “‘“‘“(1)
extreme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the probability of
causing, emotional distress; (2) the plaintiff’s suffering severe or
extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant’s outrageous
conduct.”’”’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050
(Hughes).) “A defendant’s conduct is ‘outrageous’ when it is so
‘“‘extreme as to exceed all bounds of that usually tolerated in a

28
civilized society.’”’” (Ibid.) In addition, the defendant’s conduct
must be “‘“‘intended to inflict injury or engaged in with the
realization that injury will result.’”’” (Ibid.) “Liability for
intentional infliction of emotional distress ‘“does not extend to
mere insults, indignities, threats, annoyances, petty oppressions,
or other trivialities.”’” (Ibid.)
“Whether a defendant’s conduct can reasonably be found to
be outrageous is a question of law that must initially be
determined by the court . . . .” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 534.) We find that, as a matter of law, the city’s
conduct was not so extreme as to exceed all bounds of that
usually tolerated in a civilized society. Because Buckman has
failed to show outrageous conduct, which is an essential element
of her IIED claim, we reverse the trial court’s decision in her
favor on this cause of action.4
Personnel management decisions are generally not
“outrageous conduct beyond the bounds of human decency,” even
when improperly motivated. (Janken v. GM Hughes Electronics
(1996) 46 Cal.App.4th 55, 80 (Janken).) In Janken, the plaintiffs
alleged their employer engaged in a practice of age
discrimination. (Id. at p. 61.) The Janken court determined the
plaintiffs’ IIED claim failed as a matter of law because

4 The city raises two challenges to the trial court’s decision in
favor of Buckman on her IIED cause of action: (1) the Workers’
Compensation Act (Lab. Code, § 3200 et seq.) exerts exclusive
jurisdiction over employment-based emotional injuries and (2)
the claimed conduct was not outrageous as a matter of law.
Because we agree with the city that the conduct at issue was not
outrageous as a matter of law, we decline to address the parties’
competing arguments as to the workers’ compensation exclusivity
issue.

29
“[m]anaging personnel is not outrageous conduct beyond the
bounds of human decency, but rather conduct essential to the
welfare and prosperity of society.” (Id. at p. 80.) When the
allegations show personnel management activity, such activity is
insufficient to support a claim of IIED, even where the activity
showed that the employer “downgraded or altered plaintiffs’
performance appraisals; demoted, terminated or laid off
plaintiffs; failed to promote or failed to transfer plaintiffs; failed
to provide plaintiffs with salaries commensurate with their
qualifications, experience and responsibilities; placed a ‘cap’ on
salaries of long-term employees such as plaintiffs; . . . failed to
provide plaintiffs with work assignments; failed to provide
plaintiffs with sufficient clerical or secretarial support; failed to
respond to correspondence sent by plaintiffs . . . ; ‘accused’ one
plaintiff of not properly maintaining a time card; and similar
claims.” (Id. at p. 79.)
2. Analysis
The acts of which Buckman complains are no more severe
than those alleged in Janken. Buckman complains of a superior
calling her a liar during the grievance hearing, unilaterally
removing her vacation and sick pay, and ultimately terminating
her employment. These actions are not so extreme as to exceed
all bounds of that usually tolerated in a civilized society.
(Hughes, supra, 46 Cal.4th at p. 1050.) The city’s acts of
removing her vacation and sick pay and terminating her
employment are within the realm of personnel management. The
insult also does not rise to the level of outrageous conduct as a
matter of law. (Ibid.)
Yurick v. Superior Court (1989) 209 Cal.App.3d 1116
provides additional authority that Buckman’s IIED claim is

30
insufficient. In Yurick, a hospital employee asserted causes of
action for gender discrimination, unlawful retaliation, IIED,
wrongful discharge and age harassment. (Id. at p. 1119.) Among
other claims, the plaintiff claimed the defendant supervisor
called her “senile and a liar” in the presence of others. (Ibid.) In
determining that the employee’s cause of action for IIED had no
merit, the Yurick court noted that “‘it is generally held that there
can be no recovery for mere profanity, obscenity, or abuse,
without circumstances of aggravation, or for insults, indignities
or threats which are considered to amount to nothing more than
mere annoyances. The plaintiff cannot recover merely because of
hurt feelings.’” (Id. at p. 1128.) The supervisor’s conduct was
“not so egregiously outside the realm of civilized conduct as to
give rise to actionable infliction of mental distress.” (Id. at
p. 1129.) Similarly, Guglielmo’s act of calling Buckman a liar in
front of other people is insufficient to support a claim of IIED.
Finally, in Cornell v. Berkeley Tennis Club (2017) 18
Cal.App.5th 908, an obese employee complained of the general
manager’s comments he would likely be unable to find a uniform
that fit her. She felt humiliated when the uniform shirts did not
fit her and was accused of being noncooperative when she could
not wear the assigned uniform shirt, as it did not come in her
size. (Id. at pp. 919-920.) She was also refused training for
positions she wanted and suffered pay disparity with newer
employees. She filed a grievance on the pay issue and was later
terminated after being accused of attempting to surreptitiously
record a board meeting. (Id. at pp. 920-924.) Under these
circumstances, the Cornell court found the trial court properly
granted summary judgment on Cornell’s claim for IIED. The
supervisor’s “comments, which were inappropriate but not severe,

31
[and] his official actions [did not] rise to the level of ‘outrageous
conduct beyond the bounds of human decency.’” (Id. at p. 946.)
Insults by a superior at work, and even termination of
employment, are indignities that generally must be borne
without recourse to legal remedy under an IIED cause of action.
Buckman cites Alcorn v. Anbro Engineering, Inc. (1970) 2
Cal.3d 493, 498, for the proposition that a cause of action for
IIED may be stated where the perpetrator stands in a position of
authority over the plaintiff and is aware of the plaintiff’s
particular susceptibility to emotional distress. However, the
facts were significantly more extreme than those present in this
case. The plaintiff’s foreman shouted racial insults at the
plaintiff and terminated him abruptly, stating: “‘You goddam
“n######” are not going to tell me about the rules. I don’t want
any “n######” working for me. I am getting rid of all the
“n######”; go pick up and deliver that 8-ton roller to the other job
site and get your pay check; you’re fired.’” (Id. at pp. 496-497.)
Under these circumstances, the Alcorn court held that the claim
survived demurrer, as the plaintiff had “alleged facts and
circumstances which reasonably could lead the trier of fact to
conclude that defendants’ conduct was extreme and
outrageous . . . .” (Id. at p. 498.) At a minimum, “the aggravated
circumstances alleged by plaintiff seem[ed] sufficient to uphold
his complaint as against defendants’ general demurrer.” (Id. at
p. 499.) The city’s actions in this matter are less egregious and
shocking and do not rise to the level of those stated in Alcorn.
We conclude as a matter of law that the actions of the city
alleged in this matter do not rise to the level of “outrageous
conduct beyond the bounds of human decency.” (Janken, supra,

32
46 Cal.App.4th at p. 80.) The decision in Buckman’s favor on this
issue is reversed.
C. Labor Code cause of action for lost wages
The city challenges the trial court’s decision in favor of
Buckman on her sixth cause of action for lost wages in violation
of Labor Code sections 221 and 227.3.5
1. Applicability of Labor Code section 221 to the city
We sought supplemental briefing from the parties on an
issue not discussed in the trial court or the appellate briefs—
whether Labor Code section 221 applies to public employers in
light of Association for Los Angeles Deputy Sheriffs v. County of
Los Angeles (2021) 60 Cal.App.5th 327 (Association for Los
Angeles Deputy Sheriffs), particularly the discussion at pages 338
through 342, and the cases cited therein.6

5 As set forth above, the city has made no specific claim on
appeal that the seventh cause of action for illegal collection back
of wages should be reversed. Thus, we do not separately address
the seventh cause of action. However, the sixth and seventh
causes of action are intertwined, particularly because the trial
court jointly awarded damages, penalties and interest against the
city for the “6th and 7th causes of action under Labor Code
§§ 221, 225.5 and 227.3.” On remand, the trial court is directed
to reevaluate its award under the seventh cause of action in light
of this opinion.
6 The Association for Los Angeles Deputy Sheriffs decision
was published in January 2021, thus was not available to the
parties during trial. However, it was published prior to the
appellate briefing in this matter. In addition, the Association for
Los Angeles Deputy Sheriffs decision relied on prior case law
suggesting that “‘provisions of the Labor Code apply only to
employees in the private sector unless they are specifically made

33
 In Association for Los Angeles Deputy Sheriffs, the Los
Angeles Deputy Sheriffs sought a writ of mandate and
declaration that a provision of a certain memorandum of
understanding was unenforceable on the grounds that it violated
Labor Code section 221, among other laws. (Association for Los
Angeles Deputy Sheriffs, supra, 60 Cal.App.5th at p. 333.) The
Association for Los Angeles Deputy Sheriffs court found that
Labor Code section 221 does not apply to charter counties such as
Los Angeles County. (Association for Los Angeles Deputy
Sheriffs, at pp. 338-341.) The city has argued in its supplemental
briefing that there is no reason to treat the city—which is a
charter city—any differently, as the same constitutional and
statutory provisions that apply to counties also apply to charter
cities. (First Street Plaza Partners v. City of Los Angeles (1998)
65 Cal.App.4th 650, 661 [Los Angeles “is a chartered city with
maximum allowable control over municipal affairs.”]; see Cal.
Const., art. XI, § 5, subd. (b) [charter cities have plenary power

applicable to public employees.’” (Campbell v. Regents of
University of California (2005) 35 Cal.4th 311, 330.) As the city
points out, the Association for Los Angeles Deputy Sheriffs
decision and related cases call into question whether any of the
Labor Code provisions at issue in this matter apply to public
entities such as the city. (See Allen v. San Diego Convention
Center Corp., Inc. (2022) 86 Cal.App.5th 589, 597 [“governmental
actors enjoy protection from liability under the Labor Code unless
a statute specifically brings a public employer within its ambit”];
Kistler v. Redwoods Community College Dist. (1993) 15
Cal.App.4th 1326, 1332 [noting that Lab. Code, § 227.3 does not
apply to a public employer]; DuBois v. Workers’ Comp. Appeals
Bd. (1993) 5 Cal.4th 382, 398 [noting general rule that statutory
penalty provisions do not apply to public entities].)

34
over the “compensation, method of appointment, qualifications,
tenure of office and removal of [their] employees”]; State Building
& Construction Trades Council of California v. City of Vista
(2012) 54 Cal.4th 547, 564 [“‘Thus there is no question that
“salaries of local employees of a charter city constitute municipal
affairs and are not subject to general laws.”’”].)
Buckman argues that Association for Los Angeles Deputy
Sheriffs was wrongly decided. Buckman cites a letter dated
January 29, 2002, from the Department of Industrial Relations,
Division of Labor Standards Enforcement (DLSE) opining that
Labor Code section 221 applies to public employers. (DLSE
Opinion Letter 2002.01.29, p. 11, fn. 5.) Buckman also cites cases
involving the Public Employee Relations Board (PERB) that
implicitly support the application of Labor Code section 221 to
public employers. (Berkeley Council of Classified Employees v.
Berkeley Unified School Dist. (2012) PERB Decision No. 2268; see
City of Palo Alto v. Public Employment Relations Bd. (2016) 5
Cal.App.5th 1271, 1287-1288; City of Oakland v. Hassey (2008)
163 Cal.App.4th 1477.)
Association for Los Angeles Deputy Sheriffs presents recent
and as-yet uncontradicted authority that Labor Code section 221
does not apply to the city. However, we recognize that the parties
did not address this legal issue below, nor in their initial
appellate briefs. For this reason, and because Buckman did not
have an enforceable agreement with the city as a matter of law,
we decline to address in detail the parties’ competing arguments

35
as to whether the relevant Labor Code provisions apply to the
city.7
2. The city’s argument
Buckman argued her entitlement to the disputed sick leave
and vacation time was based on an oral agreement with HCID
personnel records supervisor Ruiz. The oral agreement alleged
by Buckman resulted in 11.33 hours of vacation time, 96 hours of
sick time at 100 percent pay and 40 hours of sick time at 75
percent pay as reflected on her first pay stub. Using the hourly
rate shown on that pay stub, this oral agreement would have an
initial potential value in excess of $5,366.86.
While the city disputes such an agreement existed, the city
argues it is unnecessary to review Buckman’s factual assertions
as such an agreement would be void as a matter of law. The city
claims the alleged oral agreement was unauthorized and
unenforceable. We agree.
3. Waiver
Buckman contends the city waived this argument by failing
to raise it until closing argument. Buckman asserts she was thus
deprived of the right to challenge this defense during trial,
including questioning relevant witnesses about it. However,
Buckman’s contention of waiver is belied by the record, which
shows that the city raised the issue and Buckman filed a brief

7 On May 15, 2023, following our request for supplemental
briefing from the parties on this issue, DLSE filed an application
to file amicus brief on the issue of whether Labor Code sections
221-223 apply to public employment. Because the applicability of
Labor Code sections 221-223 to public employers is not
dispositive in this case and was not raised by the parties below,
we deny DLSE’s application.

36
seeking to preclude the city from making reference to Los Angeles
City Charter (Charter), article III, section 370.8 The city raised
the apparent lack of authority to enter into the contract in its
closing arguments and its request for a statement of decision.
Specifically, the city asked whether the court took into
consideration that “Marcia Ruiz was not authorized to negotiate
accruals of sick and vacation leave.” Therefore, we decline to find
waiver.
In addition, we note the question of whether Buckman
proved the existence of an enforceable contract is a question of
law. Even if the city failed to raise this legal issue below, we may
still consider it on appeal. (Husman v. Toyota Motor Credit Corp.
(2017) 12 Cal.App.5th 1168, 1187.) We exercise our discretion to
do so.
4. The oral agreement between Buckman and Ruiz
was unenforceable
Ruiz, a member of the city personnel department staff,
communicated with Buckman when Buckman was initially
offered the job. Buckman testified it was Ruiz who offered to
retroactively apply Buckman’s sick and vacation accrual from the
date of Buckman’s prior employment with the city. At the time,
Ruiz’s title was “Personnel Records Supervisor.” Ruiz was not
authorized to negotiate salary with prospective employees, nor

8 Charter section 370 provides, in pertinent part, that every
contract involving consideration reasonably valued at more than
the amount specified by ordinance shall be made in writing. It
further provides that the city shall not be bound by any contract
unless it complies with section 370. The provision was raised by
the city to support the city’s position that the agreement
regarding sick and leave time was unauthorized.

37
was she authorized to negotiate accruals of vacation and sick
leave. In its request for a statement of decision, the city asked
that the court address the issue of Ruiz’s lack of authority to
enter into such a contract on behalf of the city. Specifically, the
city asked whether the court took into consideration that “Marcia
Ruiz was not authorized to negotiate accruals of sick and
vacation leave.” The trial court’s statement of decision did not
address the issue.
Buckman admits the accrued vacation and sick time that
were offered to her by Ruiz constituted wages. (Citing Suastez v.
Plastic Dress-Up Co., supra, 31 Cal.3d at p. 779 [establishing that
vacation pay is “additional wages for services performed.”].)
Generally, “[a] public employee is entitled only to such
compensation as is expressly and specifically provided by law.”
(Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22-23.)
California Constitution, article XI, section 10 provides: “A
local government body may not grant extra compensation or
extra allowance to a public officer, public employee, or contractor
after service has been rendered or a contract has been entered
into and performed in whole or in part, or pay a claim under an
agreement made without authority of law.”9 Based on this
provision, public employees who have sought to recover excess

9 We invited the parties to provide supplemental briefing on
the applicability of California Constitution, article XI, section 10
to the city’s contention that Buckman’s claim for failure to pay
wages is based on a legally invalid oral contract, and whether the
oral contract was “made without authority of law” as set forth
therein. Article XI, section 10, applies to charter cities such as
the city. (Nelson v. City of Los Angeles (1971) 21 Cal.App.3d 916,
918.)

38
accumulated vacation and sick leave are permitted recovery “only
when specifically authorized by a statute, ordinance, resolution,
rule, regulation, or contract in effect at the time the work was
performed or the leave was earned.” (Seymour v. Christiansen
(1991) 235 Cal.App.3d 1168, 1173 (Seymour).)10 Buckman points
to no such rule in effect at the time of her hiring allowing her to
accumulate vacation and sick time starting at the date of her
previous employment with the city. Nor does she identify any
individual with the legal authority to provide a bonus of excess
vacation and sick time who authorized the oral agreement.
Under California Constitution, article XI, section 10, the city
“may not” pay a claim under such an agreement, which was
apparently made without authority of law.

10 In Seymour, the school district employee demanded
reimbursement of personal funds expended as well as unused
sick and vacation time accumulated after years of employment.
(Seymour, supra, 235 Cal.App.3d at p. 1171.) Thus, she
specifically sought “extra compensation” for services rendered
after her contract was entered into, as set forth in the first clause
of California Constitution, article XI, section 10. The parties
disagree as to whether the first clause of California Constitution,
article XI, section 10 applies here. Both parties point to facts in
the record supporting their competing positions as to whether the
additional compensation in this case was granted after the
contract was entered into. We find that we need not resolve this
dispute, as the contract was made “without authority of law” as
set forth in the second clause of the provision. (Cal. Const., art.
XI, § 10.)

39
 We therefore reverse the trial court’s decision on failure to
pay wages.11
5. Equitable estoppel does not apply
Buckman argues the city is equitably estopped from failing
to abide by Ruiz’s oral contract with her. We disagree.
In order for the doctrine of equitable estoppel to apply, the
following factors must be present: “‘“‘(1) the party to be estopped
must know the facts; (2) he must intend that his conduct shall be
acted upon, or must so act that the party asserting the estoppel
had the right to believe that it was so intended; (3) the party
asserting the estoppel must be ignorant of the true state of facts;

11 The city argues the trial court abused its discretion by
excluding from evidence an e-mail exchange between Buckman
and Villasenor, which showed the sick time and vacation hours
were carried over in error, not due to an agreement. Buckman
claimed not to recall the e-mail, but confirmed that the “to” and
“from” e-mail addresses were the city addresses of Villasenor and
Buckman. The trial court initially admitted the exhibit, then
reconsidered, expressing confusion over the “structure.” There
was no objection to the evidence. The city later attempted again
to get the e-mail admitted to evidence using a declaration from
the city’s Division Manager for Information Technology, but the
trial court barred the filing on the ground the declarant was not
on the city’s witness list. The city made a third attempt to offer
the exhibit into evidence in a different format, but the court
rejected it after Buckman’s counsel objected the document in that
format had never been produced before. We decline to address
the city’s arguments regarding the excluded exhibit, because we
find that even if an agreement existed between Buckman and
Ruiz regarding extra sick leave and vacation time, Buckman has
failed to prove that such agreement was authorized and
enforceable as a matter of law.

40
and (4) he must rely upon the conduct to his injury.’”’” (Migliore
v. Mid-Century Ins. Co. (2002) 97 Cal.App.4th 592, 606.)
The detrimental reliance of the party seeking to assert
equitable estoppel must be reasonable. (Schafer v. City of Los
Angeles (2015) 237 Cal.App.4th 1250, 1261 (Schafer).)
Buckman has failed to meet these requirements. First,
Buckman fails to identify any individual in a position of authority
within the city who was aware of, or approved, the oral
agreement. Thus, there is no evidence that the city knew of, or
intended to enter, this purported oral agreement. Further,
Buckman cannot show ignorance of the true state of facts. The
record shows that Buckman was informed of the city’s policy
regarding her compensation, including that she was starting with
a balance of zero vacation and sick time. Buckman initialed the
terms of her employment, including specifically acknowledging
she was bound by the terms of the Personnel Procedures Manual,
which contained specific provisions details regarding the sick and
leave time that she would qualify for upon being hired. Because
Buckman failed to speak to any individual in a position of
authority regarding her agreement with personnel staff for extra
time, and because she was made aware of the city rules regarding
sick and leave time for individuals in her position, any reliance
on a purported promise from Ruiz was not reasonable as a matter
of law.
Finally, we note the doctrine of equitable estoppel
“‘“ordinarily will not apply against a governmental body except in
unusual instances when necessary to avoid grave injustice and
when the result will not defeat a strong public policy.”’” (Schafer,
supra, 237 Cal.App.4th at p. 1262; see First Street Plaza Partners
v. City of Los Angeles (1998) 65 Cal.App.4th 650, 669 [discussing

41
legal precedent and noting that “[n]o case has ever held that a
city may be bound to a contract by estoppel”].) The city has a
strong interest in abiding by the terms of its Personnel
Procedures Manual in order to avoid inequity in its treatment of
employees. Thus, equitable estoppel does not apply.
6. Charter section 370 and Administrative Code
section 10.2
The city “is a chartered city with maximum allowable
control over municipal affairs.” (First Street Plaza Partners v.
City of Los Angeles, supra, 65 Cal.App.4th at p. 661.) The legal
power and ability of the city to contract is limited by its charter,
which requires a written contract for any agreement over the
value set by ordinance. (Charter, § 370). During the time period
in question, the Los Angeles Administrative Code
(Administrative Code), article I, former section 10.2 required
contracts valued at more than $1,000 to be (1) made in writing,
(2) approved by the city attorney, and (3) signed by the mayor or
another authorized official unless an ordinance specifically
provided otherwise.12 The Charter provides that “[t]he City shall
not be, and is not, bound by any contract unless it complies with
the requirements of this section and all other applicable
requirements of the Charter.” (Charter, § 370.) The city
contends these provisions required the alleged agreement with
Buckman to be in writing.
Buckman argues that Charter section 370, Administrative
Code former section 10.2, and Los Angeles Ordinance No. 185268

12 The contract limit was amended to $5,000, effective 2018.

42
do not apply here.13 Because the alleged agreement asserted by
Buckman was not authorized, the city may not pay a claim on the
agreement, as set forth in California Constitution, article XI,
section 10. Thus, we find that we need not address the competing
arguments of the parties on this point.
D. Attorney fee award
Buckman obtained a favorable judgment on four of her
seven causes of action, but only one supported recovery of
attorney fees—her CFRA retaliation claim. (Gov. Code,
§§ 12945.2, 12965, subd. (b).) The city argues Buckman was
therefore limited to an award of those fees reasonably related to
her retaliation claim. The city claims Buckman made no attempt
to allocate her fees, but the trial court, in excess of its authority,
awarded all of Buckman’s fees regardless of which claim they
supported. The city cites Reynolds Metals Co. v. Alperson (1979)
25 Cal.3d 124, 129 (Reynolds), for the proposition that “[a]
litigant may not increase his recovery of attorney’s fees by joining
a cause of action in which attorney’s fees are not recoverable to
one in which an award is proper.” (See Thompson Pacific
Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th
525, 555 (Thompson) [“a court may not award fees for legal work
that is unrelated to a cause of action for which fees are
authorized”]; Graciano v. Robinson Ford Sales, Inc. (2006) 144
Cal.App.4th 140, 157 (Graciano) [directing trial court to consider
“whether it could segregate the work . . . counsel performed on

13 Los Angeles Ordinance No. 185268, effective January 10,
2018, increased the value of city contracts required to be in
writing and added categories of contracts that were not required
to be approved by the city attorney as to form.

43
causes of action for which she was entitled to fees from those for
which she was not”].)
Buckman makes two arguments in opposition: first, the city
forfeited this argument by failing to raise it below; second, the
trial court need not apportion fees where the issues in the case
are intertwined. (Citing Wysinger v. Automobile Club of
Southern California (2007) 157 Cal.App.4th 413, 431
(Wysinger).)14
As the matter is reversed as to two of the four causes of
action on which Buckman prevailed below, the attorney fee
award should be reconsidered. We find the trial court should
consider the question of apportionment in rendering an attorney
fee award on remand, including the legal principles set forth in
Reynolds, Thompson, Graciano, Wysinger, and other applicable
authority presented by the parties. The court should also
consider the judgment appealed from is in favor of Buckman on
only two of her seven causes of action.15

14 In Wysinger, all claims “involved underlying disability and
age discrimination issues” and were “based on 52 paragraphs of
facts in Wysinger’s complaint, which he alleged were common to
all causes of action.” (Wysinger, supra, 157 Cal.App.4th at
p. 431.)
15 As set forth in part I.C. above, the validity of the judgment
in favor of Buckman on the seventh cause of action is legally
questionable. However, because the city failed to specifically
address this cause of action in its appeal, the judgment in favor of
Buckman on the seventh cause of action remains intact.
However, the damages and statutory penalties must be
reconsidered given that the awards on the sixth and seventh
causes of action were intertwined.

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II. Buckman’s cross-appeal
In her cross-appeal, Buckman contends the trial court erred
in deducting 203 hours of counsel’s travel time and in its
application of the lodestar-adjustment method. Buckman argues
these two errors resulted in an inadequate fee award.
The fee award is reversed for the reasons set forth above.
We therefore decline to consider Buckman’s cross-appeal at this
time, as the fee award will be reconsidered in its entirety upon
remand.

DISPOSITION
The judgment in favor of Buckman on her claim for
retaliation is affirmed. The judgment in favor of Buckman on her
IIED and lost wages claims are reversed. The trial court is
directed to adjust the damages and penalties awarded to
Buckman accordingly. The award of attorney fees to Buckman is
reversed and remanded for reconsideration in light of this
opinion. Each party shall bear its own costs of appeal.

___________________________
CHAVEZ, J.

We concur:

_______________________________
ASHMANN-GERST, Acting P. J.

_______________________________
HOFFSTADT, J.

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