Judge: Joseph Lipner, Case: 22STCV22774, Date: 2025-02-18 Tentative Ruling

Case Number: 22STCV22774    Hearing Date: February 18, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant The Regents of the University of California (“Defendant”) moves for summary judgment on the Complaint filed by Plaintiff Dolly Roy, M.D., Ph.D. (“Plaintiff”). Defendant alternatively seeks summary adjudication on each of Plaintiff’s causes of action.

The Court GRANTS the motion for summary judgment.

Background

This is an employment case. Plaintiff alleges that her employment was terminated in retaliation for reporting safety issues related to Covid-19.

The following facts are taken from the parties’ separate statements. The Court resolves disputes of fact in favor of Plaintiff, the nonmoving party.

Plaintiff is a neurologist licensed in California. Plaintiff began working as a neurology staff physician for Defendant with UCLA Health at its Porter Ranch and Thousand Oaks locations around September 2017. Plaintiff’s contract with Defendant was renewed three times, on July 1, 2019, July 1, 2020, and July 1, 2021.

During her employment, Plaintiff repeatedly raised the issue of air filtration in order to prevent the spread of Covid-19, both with UCLA Health management and with the Los Angeles County Department of Public Health (“LACDPH”). LACDPH informed Plaintiff, and Plaintiff acknowledged in her communications with Defendant, that the filtration used by the facilities where Plaintiff worked was legally adequate. Plaintiff sought permission from management to use a portable air filter in her clinic, which was denied.

On March 10, 2022, Plaintiff was notified that her employment contract was set to expire on June 30, 2022 and would not be renewed.

Plaintiff filed this action on July 14, 2022, raising claims for (1) retaliation in violation of Health & Safety Code, section 1278.5; and (2) retaliation in violation of Labor Code, section 1102.5.

On October 4, 2024, Defendant filed this motion for summary judgment and summary adjudication. Plaintiff filed an opposition and Defendant filed a reply.

Evidentiary Objections

The Court has reviewed Defendant’s evidentiary objections.

The Court sustains the following objections: 5 as to the word “comparatively” only (contradicts deposition testimony); 6 (misstates evidence); 13 as to the word “unreasonable” only (improper legal argument); 14 (legal argument); 15 (legal argument); 17 (legal argument, speculation, lacks foundation); 18 as to the word “reasonably” only (legal argument).

The Court overrules Defendant’s remaining objections.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar, supra, at pp. 844-845 [quotation marks omitted].) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Discussion

Retaliation in Violation of Labor Code, section 1102.5 – Second Claim

The Labor Code’s whistleblower provision prohibits an employer from retaliating against an employee who reports a violation of state or federal statute or a local, state or federal rule or regulation or who refuses to participate in any activity that would result in a violation of law. (Lab. Code, § 1102.5.) To prevail on whistleblower retaliation claim, a plaintiff must establish that their alleged protected activated was a contributing factor in the adverse action taken against them. (Lab. Code, § 1102.5.)

Section 1102.5 “imposes a requirement of objective reasonableness and excludes from whistleblower protection disclosures that involve only disagreements over discretionary decisions, policy choices, interpersonal dynamics, or other nonactionable issues. Moreover, an employer accused of retaliation in violation of section 1102.5(b) can rebut the charge by ‘demonstrat[ing] by clear and convincing evidence that the alleged [retaliatory] action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.’ [Citation.]” (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 734.)

            The undisputed evidence here shows that Plaintiff did not believe that any of the complaints she made to Defendant or to LACDPH, disclosed a violation of law.

            Air filtration in buildings is measured by a rating known as the Minimum Efficiency Reporting Value, or MERV. (UF 78.) The higher the MERV rating, the better the filter is at trapping specific types of particles. (UF 78.) The American Society of Heating, Refrigerating, and Air-Conditioning Engineers (“ASHRAE”) created the MERV rating system and provides guidelines for air filtration standards in various types of buildings. (UF 79.) ASHRAE 170 2021 sets the standard for healthcare facilities such as UCLA Health. (UF 79.)

            On August 22, 2021, Plaintiff emailed UCLA Health Administrators Tamika Jefferson and Lillian Martinez, inquiring about the level and type of air filtration in the Porter Ranch and Thousand Oaks clinics. (Undisputed Fact (“UF”) 82.) Plaintiff asked “1. What type of filtration is there already?” and “2. If there Isn’t any, am I allowed to spend my own money for air filters for my rooms (portable I believe)?” (Defendant Ex. 54.) Plaintiff’s email did not indicate that she believed that a violation of law was occurring. (See Defendant Ex. 54.)

            On September 22, 2021, Jefferson responded to Plaintiff that the air filters complied with the applicable ASHRAE standard, ASHRAE 170. (UF 84, 85.) Jefferson told Plaintiff that she was investigating Plaintiff’s request to purchase a portable air filter for her examination room and directed Plaintiff to a member of UCLA Health’s Ambulatory Infection Prevention team to address any specific questions she had. (UF 85.) Plaintiff did not make any further inquiries for several months because Covid-19 had receded somewhat. (UF 85.)

            On December 2, 2021, in anticipation of another Covid-19 surge, Plaintiff emailed Martinez and Jefferson to ask about the status of her prior request for an air filter but made no mention of the existing system being illegal or unsafe. (UF 87.)

            On December 9, 2021, Plaintiff notified Dr. Stanley Carmichael and Dr. Martina Wiedau, for the first time, of Plaintiff’s request for a portable air filter and asked whether the department would fund the purchase. (UF 88-89.) Carmichael questioned the efficacy of portable filters and requested guidance from UCLA Health infection prevention experts, insisting on waiting for guidance and noting that an infection prevention specialist had previously advised against additional workplace filtration. (UF 90-93.)

On December 22, 2021, a member of UCLA’s Infection Prevention team advised that a portable air filter was not recommended on the basis that the air filtration system at the clinic was code-compliant. (UF 94.) Plaintiff replied in an email that her research also revealed that a non-surgical clinic like Porter Ranch (or Thousand Oaks) is not required to have the higher level of MERV-13 filtration required for surgical centers or hospitals. (UF 97.)

 At her deposition, Plaintiff confirmed that she never thought UCLA Health was violating the law. (UF 99.) Rather, Plaintiff’s concern “was the actual end result, which was, are we being as safe as we can be filtering coronavirus. And the answer is no, we’re not.” (Plaintiff Ex. 2 (Roy Dep.) at p. 199:3-11.)

On December 27, 2021, Plaintiff contacted the LACDPH to find out what LACDPH recommended for optimizing patient safety during the Covid-19 pandemic. (UF 101.) Plaintiff wanted to know whether the MERV-8 standard was sufficient to protect outpatient visit patients. (UF 101-102.) Plaintiff sought confirmation as to whether “current rules mandate only a MERV [-]8 for non-surgical, non-hospital rooms” and whether MERV-13 air filters are just recommended. (UF 102.) Plaintiff also sought input on patient spacing and sanitizing protocols. Bernie Lau, a Covid-19 Liaison with LACDPH, responded to Plaintiff’s inquiry on December 28, 2021. (UF 103.) Lau stated that masks are required by local regulations and that healthcare staff should wear well-fitting medical face masks. (UF 103.) He also recommended that staff wear respirator (N95) masks when providing care to unmasked patients. (UF 103.) Lau confirmed that MERV-13 air filters were only recommended for non-surgical settings. (UF 104.)

On January 2, 2022, Plaintiff shared Lau’s guidance with Jefferson, Martinez, Wiedau, and Carmichael. Plaintiff requested that they reconsider her request for a portable air filter, noting that LACDPH recommended the use of such filters. (UF 105.) Plaintiff’s January 2, 2022 email did not allege that the air filtration system in the Porter Ranch clinic violated any law or safety standard. (UF 106-107.) It is undisputed that Plaintiff knew that the MERV-8 system which was in use was legally adequate and that there was no requirement for MERV-13 filtration. (UF 107.)

On January 10, 2022, Plaintiff verbally contacted to LACDPH regarding the installation of a portable filter. (UF 110-113.) Lau agreed to reach out to UCLA Health but told Plaintiff that no laws required Defendant to install a portable filter in Plaintiff’s clinic. (UF 114.) When LACDPH reached out to UCLA Health, it confirmed that MERV-13 filters were not required. (UF 115.)

            Carmichael ultimately decided not to permit the use of portable air filters in Plaintiff’s clinic at Porter Ranch. (UF 127.) Carmichael offered Plaintiff the use of a personal air purifying respirator, which Plaintiff declined. (UF 123-126.)

            These undisputed facts show that Plaintiff did not think the law was being violated. Accordingly, Defendant has met its burden on showing that an element of Plaintiff’s claim cannot be established.  The burden then shifts to Plaintiff to show a disputed issue of material fact on this issue.

Plaintiff has not met her burden of showing disputed material.  Plaintiff contends that although she is not a lawyer and is not familiar with the relevant statutes, she reasonably believed that the lack of MERV-13 filtration violated a local regulation. (Opposition at p. 5: 2-7.) The problem with this argument is that Plaintiff’s contemporaneous emails, and her deposition testimony, show that Plaintiff did not even subjectively believe the law was being violated. (UF 97, 99, 107.)

            Because Defendant has met its initial summary judgment burden, and Plaintiff has not met her burden, the Court grants summary adjudication on this claim.

Retaliation in violation of Health & Safety Code, section 1278.5 – First Claim

“(1) A health facility shall not discriminate or retaliate, in any manner, against a patient, employee, member of the medical staff, or 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.

(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.

(2) An entity that owns or operates a health facility, or that owns or operates any other health facility, shall not discriminate or retaliate against a person because that person has taken any actions pursuant to this subdivision.”

(Health & Saf. Code, § 1278.5, subd. (b).)

“(1) There shall be a rebuttable presumption that discriminatory action was taken by the health facility, or by the entity that owns or operates that health facility, or that owns or operates any other health facility, in retaliation against an employee, member of the medical staff, or any other health care worker of the facility, if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the employee, member of the medical staff or any other health care worker of the facility.

(2) For purposes of this section, discriminatory treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions.”

(Health & Saf. Code, § 1278.5, subd. (d).)

Unlike Labor Code, section 1102.5, Health & Safety Code, section 1278.5 contains no requirement that the complaining party believe – reasonably or otherwise – that their complaint discloses a violation of law. Here, the undisputed facts show that Plaintiff complained about issues related to patient treatment – namely, the adequacy of the air filtration. That is adequate to show protected activity.

Plaintiff was terminated within 120 days of her communications with Carmichael asking for a portable air filter. Carmichael was one of the individuals who notified Plaintiff that her contract would not be renewed. (Additional Fact (“AF”) 20.) There is thus a rebuttable presumption of retaliation.

Here, Defendant has successfully rebutted that presumption by showing a legitimate, independent reason for termination. (See generally Carmichael Decl. ¶¶ 15-59.)

UCLA Health’s standards for physicians require that physicians ensure that medical care is delivered in a timely manner. (Carmichael Decl. ¶ 17.) The undisputed facts show that Plaintiff’s clinics frequently ran late, running into the evening and requiring staff to work overtime. (UF 35-41.) Plaintiff admitted that she was aware of complaints by her patients due to having to wait for long periods of time to be seen by her. (UF 19, 62, 68.) At times, some patients had to wait more than two hours to see her. (UF 20.)

The incident that Defendant contends precipitated Plaintiff’s termination occurred on September 10, when a physician who was scheduled for an appointment with Plaintiff left after waiting for two hours without being seen. (UF 55.) The physician reported the incident to UCLA Health’s Office of Patient Experience. (UF 55.) Carmichael was notified and the incident was escalated to UCLA Health’s executive leadership team. (UF 56-57.) After receiving the leadership team’s report, Carmichael and Wiedau discussed Plaintiff’s performance issues in an email thread that ran from September 11, 2021 to September 13, 2021. (UF 58.) In that email thread, Carmichael and Wideau decided that Plaintiff’s contract would not be renewed in summer to follow. (UF 58.)

Plaintiff has admitted that her clinic frequently ran late, and that at least one patient would leave per week without having received treatment. (UF 38, 68.) Plaintiff has admitted that her supervisors frequently counseled her for failing to see patients in a timely fashion. (UF 35, 41, 47, 49, 50, 51, 53, 54, 61, 70.)

Plaintiff argues that her clinic’s delays resulted from her being assigned more complex patients than other physicians and being provided with inadequate staff. (Opposition at p. 8:4-10; AF 5, 6, 10.) Plaintiff has admitted, however, that she never actually reviewed the caseloads of other physicians in the Department of Neurology and does not know how patients are assigned. (UF 48.) And although Plaintiff contends that she needed a dedicated scribe or assistant, has not presented evidence that other physicians received more support. At her deposition, Plaintiff could not identify another neurologist who had a full-time assistant. (Defendant Ex. 3 at pp. 161:24-163:12.)

Plaintiff contends that the decision not to notify her of her termination until March 10, 2022 creates a triable issue of fact that the termination was in response to her complaints. Plaintiff argues that the significant delay undermines the credibility of Defendant’s purported reason for termination. However, it is undisputed that the reason for delay included the need to develop a plan for the transition of Plaintiff’s patients, which included the opening of a new clinic and caused substantial delays. (UF 59, 60, 65, 66, 69; Carmichael Decl. ¶¶46-47, 52-54, 56, 57; Defendant Exs. 45, 66, 69; Defendant Ex. 5 (Wiedau Dep.) at p. 60:14-25.)

Defendant has therefore carried its burden to rebut the presumption of retaliation. Plaintiff has not created a triable issue as to Defendant’s legitimate reason for termination.

The Court therefore grants summary adjudication on this claim. Because the Court grants summary adjudication on both claims, the Court grants the motion for summary judgment.