Judge: Jon R. Takasugi, Case: BC587400, Date: 2023-12-11 Tentative Ruling

Case Number: BC587400    Hearing Date: December 11, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiff’s motion for equitable relief is DENIED.

            On 7/7/205, Plaintiff Timothy Jang M.D. (Plaintiff) filed suit against the County of Los Angeles d/b/a Harbor UCLA Medical Center and Roger Lewis M.D., alleging: (1) Health and Safety Code section 1278.5; (2) Labor Code section 98.6 and 1102.5; (3) Business and Professions Code section 2056; (4) discrimination; (5) retaliation; (6) harassment; and (7) failure to prevent harassment, discrimination, and/or retaliation.

            Now, Plaintiff moves for equitable relief.

Discussion 

            Plaintiff moves for equitable relief so that he can be placed in the same position he would have been had the County of Los Angeles not violated his rights under FEHA and California Labor Code section 1102.5. Specifically, Plaintiff seeks a permanent injunction ordering the County to:

-          Immediately reclassify Dr. Jang to senior physician, and to provide Dr. Jang with all privileges and benefits of that item, including but not limited to: placing Dr. Jang on the pay scale associated with the senior physician item; issuing Dr. Jang the same type of name badge that other senior physicians receive; and announcing Dr. Jang’s promotion to other employees at the Harbor-UCLA Medical Center via email and bulletin board;

-          Award Dr. Jang with 96 credits of shift relief, which Dr. Jang may use at the rate of four per month;

-          Cease and desist from any further violations of the Fair Employment and Housing Act and Labor Code section 1102.5 toward Dr. Jang; and,

-          Cease and desist from adversely changing the terms, conditions, and privileges of employment because Dr. Jang filed this action.

In order to eliminate discrimination, it is necessary to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons.” Cal. Gov. Code § 12920.5. Thus, when an employee’s rights are violated under the Fair Employment and Housing Act (FEHA), “the FEHA seeks to restore aggrieved persons to the position they would have occupied had the discrimination not occurred.” (Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, 225 (emphasis added). Declaratory and injunctive relief are both available under the FEHA. (Id. at 211.)

Equitable relief is also available under Labor Code section 1102.5. California Labor Code section 1102.62(b) states, “Appropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation [of Section 1102.5] has occurred.”

Here, the jury found for Dr. Jang on both retaliation claims and awarded him $342,038 in past lost earnings, $111,571 in future lost earnings, $100,000 for past emotional distress, and $50,000 for future emotional distress for a total of $603,609.

After review, the Court cannot grant the requested equitable relief. 

As a preliminary matter, the Court finds that such relief, contrary to Defendant’s contention, would not result in double recovery. Broadly speaking, election of remedies is the act of choosing between two or more concurrent but inconsistent remedies based upon the same state of facts. Ordinarily a plaintiff need not elect, and cannot be compelled to elect, between inconsistent remedies during the course of trial prior to judgment.” (Baker v. Superior Ct. (1983) 150 Cal. App. 3d 140, 144.)

As to the first request, Plaintiff seeks equitable relief through promotion to Senior Physician, rather than the monetary relief of front-pay. The Court understands Plaintiff’s contention that a promotion, rather than front pay, is a superior remedy given that Plaintiff remains employed with the Defendant and was wrongfully denied a promotion. However, there are three factors which persuade the Court such relief should not be granted. First, Defendant submitted evidence at trial that Harbor-UCLA only receives a limited number of Senior Physician items. [Weiss Decl., Exhs. D, G-J.] Only the Board of Supervisors can create a new item, in accordance with the County’s civil service rules. When a Senior Physician item becomes available due to an employee promoting, transferring, retiring, or otherwise changing the status of their employment, the item either remains in the department of that employee or is allocated to a different department at the discretion of the CMO based upon an assessment of the current staffing needs of the facility. [Id.] Plaintiff has not presented any evidence that there is a Senior Physician item open or available. Accordingly, for the Court to create a new Senior Physician item, the Court would be required to assume the role of substitute Legislature to bypass the County’s civil service process to create a position that does not presently exist and for which there is no funding. Such an order would invade the role of the Board of Supervisors.

Second, the cases cited by Plaintiff in support of his contention that equitable relief is favored over front pay are either distinguishable from the facts here or nonbinding. Dollar v. Smithway Motor Xpress, Inc. (8th Cir. 2013) 710 F3d 798, 809, as an eighth circuit case, is non-binding and cannot be relied upon by this Court.  In Harris v. County of Santa Monica (2013) 56 Cal.4th 203, 225, the Court did not consider whether equitable relief was preferred over front pay, but rather determined that equitable relief such as reinstatement and back pay are not available to a Plaintiff in a mixed-motive discrimination case. (Id. at 211.)

Third, Plaintiff requested front-pay as part of his damages. The jury heard evidence, considered the factors, and awarded Plaintiff $111,571. As such, the jury award indicates that they did not find the damages to be speculative and affixed a monetary value award. 

As for the second form of relief requested, the Court finds that it cannot award the requested relief of 96 shift relief credits. In opposition, Defendant indicated that operations at Harbor-UCLA has changed over the course of litigation, and “shift relief credits were removed altogether to provide for better clinical coverage in the hospital’s emergency department and to address inequalities in the workload of the faculty.” (Opp., 11: 20-21.) As such, the request for 96 shift credits is impossible as the shift relief program no longer exists. Moreover, as noted by Defendant, awarding these shift relief credits now would impose a burden on other physicians who would be required to cover his shifts, thereby producing an inequitable result.

As for the third and fourth forms of relief requested, the Court would be greatly expanding its role in this litigation if it were to grant a permanent injunction to avoid further violations of FEHA and Labor Code section 1102.5 or to avoid an adverse change to Plaintiff’s employment as a result of this action. Such remedies are disfavored as they require ongoing court supervision. See, e.g., Long Beach Drug Co. v. United Drug Co. (1939) 13 Cal. 2d 158, 171 (Courts of Equity “will not decree specific performance when the duty to be performed is a continuous one, extending possibly over a long period of time and which, in order that the performance may be made effectual, will necessarily require constant personal supervision and the oversight of it by the court.”) Plaintiff has not submitted evidence that Defendant has continued to retaliate against him. As such there is insufficient evidence to conclude that such injunctive relief is necessary. (See E. Bay Mun. Util. Dist. v. Dep't of Forestry & Fire Prot. (1996) 43 Cal.App.4th 1113, 1126 (finding that an injunction should not issue as a remedy for past acts which are not likely to recur); Dawson, supra, 28 Cal.App.4th at 1p. 037 (“A court of equity will not afford an injunction to prevent in the future that which in good faith has been discontinued in the absence of any evidence that the acts are likely to be repeated in the future”).)

Based on the foregoing, Plaintiff’s motion for equitable relief is denied.

It is so ordered.

Dated:  December    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.