Judge: Christopher K. Lui, Case: 19STCV30856, Date: 2022-12-06 Tentative Ruling

Case Number: 19STCV30856    Hearing Date: December 6, 2022    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.  Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

            Plaintiff alleges that she suffered from major depressive disorder, anxiety disorder, and a sleep disorder (severe insomnia), and was prescribed anti-anxiety, anti-depression and sleep medications. Plaintiff alleges that she was pretextually terminated for violations of the drug-free workplace policy.

After a jury trial, the jury returned a special verdict. Plaintiff moves for “affirmative relief.”

TENTATIVE RULING

Plaintiff Marianna Jong’s motion for affirmative relief is DENIED. 

ANALYSIS

Motion For Affirmative Relief

After a jury trial, the jury returned a special verdict. Plaintiff moves for “affirmative relief.” In particular, Plaintiff seeks the following affirmative relief: 

1. Declaratory judgment that Plaintiff Marinna Jong was discriminated against on the basis of her disability and that Kaiser Foundational Hospitals failed to prevent discrimination;

2. Within 10 days of the effective day of the Court’s order, Kaiser Foundation Hospitals shall modify all material in Plaintiff Marianna Jong’s personnel file to exclude reference to intoxication or being “under the influence”; 

3. Kaiser Foundation Hospitals is enjoined and prevented from engaging in any disclosure that would imply that Plaintiff Marianna Jong was terminated for being intoxicated or “under the influence”; 

4. Within 90 days of the effective day of the Court’s order, Kaiser Foundation Hospitals shall implement and disseminate new effective written policies prohibiting discriminatory application of its drug-free workplace policy, specifically against individuals who are suffering from manifestations of their disability; and 

5. Kaiser Foundation Hospitals shall conduct annual trainings, of a duration of five hours each, for five years from the effective date of this order on the new company policy adopted pursuant to this order.

            As Defendant Kaiser Foundation Hospitals points out, Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4^th 1302 holds that Plaintiff may not seek such relief where it was not pled in the operative complaint.

1. Declaratory and Injunctive Relief

Citing the California Supreme Court's discussion of available remedies in Harris, appellant contends he was entitled to declaratory and injunctive relief under the facts presented and the jury's findings. We conclude that appellant failed to properly raise or preserve issues pertaining to these remedies, and that in any event, no effective alternative relief was available.

In order for a party to pursue an action for declaratory relief, the grounds for such relief must be specifically pleaded in the complaint. (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513–514  [*1326] [156 Cal. Rptr. 3d 912], disapproved in part on another ground in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 [199 Cal. Rptr. 3d 66, 365 P.3d 845], citing City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [124 Cal. Rptr. 2d 519, 52 P.3d 695]; accord, American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 741 [102 Cal. Rptr. 3d 759].) Appellant did not plead a claim for declaratory relief. Neither his original complaint nor the operative 5th AC contained a cause of action for declaratory relief, nor did he include a request for declaratory relief in the prayer. Although appellant asked for injunctive relief in connection with his UCL cause of action, the only such relief sought was “a temporary and permanent injunction requiring [d]efendant[s] to refrain from withholding earned and/or owed money and property from [him].” Appellant's failure to seek declaratory or injunctive relief relevant to his wrongful termination claim precluded him from obtaining such relief. (See Griffin Dewatering Corp. v. Northern Ins. Co. of New York (2009) 176 Cal.App.4th 172, 210 [97 Cal. Rptr. 3d 568] [plaintiff must recover on causes of action set out in the complaint or obtain permission to amend to include omitted claims].)

Further, although Harris was decided in February 2013, almost a year prior to the trial of this matter, appellant made no attempt to amend his complaint to add a claim for declaratory relief or to expand his request for injunctive relief to include relief relevant to his discrimination claim. Prior to trial, when the parties discussed the bifurcation motion and the order of trial, appellant neither asked the court to resolve any equitable issues first, nor suggested he intended to seek a court trial on any equitable claim following the jury trial. To the contrary, he took the position that Harris had no application to the issues at trial because he had not asserted a statutory claim under FEHA. In short, appellant did nothing to suggest he intended to seek injunctive relief in connection with his wrongful termination claim.

Finally, even had the trial court addressed appellant's UCL claim, the record did not support an award of injunctive relief. In order to grant injunctive relief under the UCL, “there must be a threat that the wrongful conduct will continue. ‘Injunctive relief will be denied if, at the time of the  [*1327] order of judgment, there is no reasonable probability that the past acts complained of will recur … .’” (Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 702 [38 Cal. Rptr. 3d 36]; accord, Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1012 [36 Cal. Rptr. 3d 592] [“‘[A]n injunction must seek to prevent harm, not to punish the wrongdoer.’”]; Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 464–465 [30 Cal. Rptr. 3d 210] [“‘[I]njunctive relief … is not a remedy designed to right completed wrongs. [Citations.]’”].) The injuries appellant suffered at the hands of Farmers are all in the past. Neither at trial nor on appeal has appellant identified any threat of real and immediate future injury to himself as a result of Farmers's employment practices. He is not employed by Farmers, and there is no reasonable likelihood he will be at any time in the future or will otherwise be in a position to be harmed by Farmers's actions.

Appellant claims an injunction is required to prevent Farmers from engaging in age discrimination against current employees. “[I]njunctive relief under the UCL is an appropriate remedy where a business has engaged in an unlawful practice of discriminating against older workers.” (Herr v. Nestlé U.S.A., Inc. (2003) 109 Cal.App.4th 779, 789, 787 [135 Cal. Rptr. 2d 477], italics added [affirming trial court orders enjoining Nestlé from discriminating on the basis of age in promoting employees, and directing company to issue repudiation of its earlier memorandum recommending “‘hiring, identifying and developing young people to have in the long-term enough resources for future management’”].) Appellant contends there was “ample evidence” that Farmers “engaged in a pattern of discrimination against older District Managers,” but cites nothing in the record to support that contention. Our review of the record reveals that one other district manager, Glenn Smith, was terminated under circumstances suggestive of age discrimination—some five years after appellant was terminated. The jury made no finding that age played a part in any other employment decision by Farmers, and its verdict represents, at best, a determination that appellant's age played a non-pivotal role in his discharge. On this record, there was insufficient evidence to support issuance of an injunction forbidding Farmers from engaging in age discrimination.

(Davis v. Farmers Ins. Exch. (2016) 245 Cal. App. 4th 1302, 1325-27.)

            Here, the Complaint did not assert any causes of action for declaratory or injunctive relief and, indeed, did not pray for declaratory or injunctive relief. Plaintiff did not seek leave to amend, even though the remedies cited by the California Supreme Court in Harris were known years before this case was even filed.[1]

            As such, Plaintiff is not entitled to the relief sought, which was not pled in the operative Complaint. As such, the Court does not address any of the parties arguments regarding the propriety of the relief sought given the jury’s findings in the special verdict.

            The motion for affirmative relief is DENIED.