Judge: Holly J. Fujie, Case: 23STCV23088, Date: 2023-08-31 Tentative Ruling

Case Number: 23STCV23088    Hearing Date: August 31, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant County of Los Angeles (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers.

BACKGROUND

This action, which arises out of an employment relationship, was initiated on July 15, 2022.  The currently operative second amended complaint (the “SAC”) alleges: (1) workplace disparate treatment; (2) hostile work harassment; (3) retaliation under the Fair Employment and Housing Act (“FEHA”); (4) failure to prevent FEHA discrimination; (5) whistle blower retaliation; (6) whistle blower retaliation; (7) wrongful termination; and (8) violation of the Unruh Civil Rights Act (the “Unruh Act”).

In relevant part, the SAC alleges: Plaintiff experienced gender discrimination and was retaliated against for reporting violations of law while she worked for Moving Defendant as a doctor at a men’s jail facility from March 2019 until her termination on November 3, 2021.  (See SAC ¶¶ 9, 16, 24.)

Moving Defendant filed a demurrer (the “Demurrer”) to the sixth and eighth causes of action on the grounds that the SAC fails to state sufficient facts to constitute a cause of action with respect to these claims.

DISCUSSION

Meet and Confer

The meet and confer requirement has been met.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Sixth Cause of Action

Under Health and Safety Code section 1278.5, subdivision (b)(1), no health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done either of the following: (A) presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity; or (B) has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity.¿ (Health &¿Saf. Code § 1278.5, subd. (b)(1).)¿  

Moving Defendant argues that the SAC fails to allege a violation of Health and Safety Code section 1278.5 because Plaintiff provided insufficient notice of the claim under the Government Claims Act.  Moving Defendant also argues that Health and Safety Code section 1278.5 does not apply to government entities.

Compliance with Presentment Requirements

Government Code section 945 provides that no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Government Code section 910 until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.  (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 445.)  Government Code section 910, in turn, requires that the claim state the date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted and provide a general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.  (Id.)  The purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.  (Id. at 446.)  As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions the claims statute should not be applied to snare the unwary where its purpose has been satisfied.  (Id.)  The claim need not specify each particular act or omission later proven to have caused the injury.  (Id. at 447.)  Only where there has been a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim, have courts generally found the complaint barred.  (Id.)

On February 21, 2023, the Court granted Plaintiff’s motion for relief from the Government Claims Act requirements (the “Relief Motion”).  The Relief Motion included a copy of Plaintiff’s late-filed claim, which indicated that she was retaliated against for reporting violations of law.  Although it did not cite to Health and Safety Code section 1278.5, Plaintiff’s underlying claim is substantially compliant with Government Code section 910, as it put Moving Defendant on notice of Plaintiff’s claim that was retaliated against. 

Applicability of Health and Safety Code section 1278.5 to Government Entities

Moving Defendant argues that Health and Safety Code section 1287.5 does not apply to public entities, citing to the Johnson v. Arvin-Edison Water Storage Dist.’s finding that absent express words to the contrary, governmental agencies are not included within the general words of a statute.  (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729, 736 (“Johnson”).)  Johnson concerned Labor Code provisions referring to “employers,” which applied to private employment unless specifically made applicable to public employment. (See id. at 736-37.) 

In contrast, Health and Safety Code section 1278.5, subdivision (b)(2) applies to an “entity that owns or operates a health facility,” which is broad enough to include public and private entities.  (See also Health & Saf. Code §§ 1250, 1253, 1277 (referring to a “health facility” in terms that apply to public entities).)  Additionally, principles of statutory construction demonstrate that the Legislature intended for Health and Safety Code section 1278.5 to apply to public entities like Defendant.  For instance, subdivision (j) of section 1278.5 expressly excludes certain public-entity health care facilities from the scope of section 1278.5.  Specifically, subdivision (j) provides that section 1278.5 “shall not apply to an inmate of a correctional facility or juvenile facility of the Department of Corrections and Rehabilitation, or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility.”  (Health & Saf. Code § 1278.5, subd. (j).)  These facilities are public entities. To construe section 1278.5 as not applying to public entities in general would render subdivision (j), in which certain public-entity facilities are expressly excluded, mere surplusage.  The Court therefore finds that Moving Defendant has not demonstrated that the statute does not apply to its facility and OVERRULES the Demurrer to the sixth cause of action.

Eighth Cause of Action: Unruh Act

 The Unruh Act provides: all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.  (Civ. Code § 51, subd. (b).) 

The Unruh Act has no application to employment discrimination.  (Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 690.)  The Unruh Act, may, however, apply to claims brought by independent contractors.  (See Payne v. Anaheim Memorial Center, Inc. (2005) 130 Cal.App.4th 729, 745-46.)

Plaintiff argues that her Unruh Act claim is alleged as an alternative basis of liability in the event that she is not found to be an employee.  (See Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)  Although the Court declines to hold that Unruh Act claims may not be brought by independent contractors, the Court finds that the eighth cause of action is not sufficiently alleged, since the SAC does not allege that Moving Defendant’s facility constitutes a “business establishment” as defined under the Unruh Act.  The Court therefore SUSTAINS the Demurrer to the eighth cause of action with 20 days leave to amend.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 31st day of August 2023