Judge Teresa A. Beaudet, Case Number: 20STCV27361, Date: 2023-08-15 Tentative Ruling

MATTHEW PORPORA,

Plaintiff,

vs.

HORRIGAN COLE ENTERPRISES, INC., dba COLE VOCATIONAL SERVICES, CO., et al.

Defendants.

Case No.:

20STCV27361

Hearing Date:

November 9, 2023

Hearing Time: 10:00 a.m.

TENTATIVE RULING RE:

DEFENDANT’S AMENDED MOTION

FOR SUMMARY ADJUDICATION

On April 7, 2022, Plaintiff filed an amendment to the Complaint naming National Mentor Healthcare, LLC in place of “Doe 1.” On November 2, 2022, Plaintiff filed an amendment to the Complaint naming National Mentor Holdings, LLC in place of “Doe 2.” On November 2, 2022, Plaintiff also filed an amendment to the Complaint naming National Mentor Holdings, Inc. in place of “Doe 3.”

Defendants National Mentor Healthcare, LLC (“NMH”), National Mentor Holdings, Inc. (“NMHI”), and National Mentor Holdings, LLC (“NMHL”) (collectively, the “NM

Defendants”) now move for summary adjudication one the first and second causes of action, and on claims for punitive damages and attorney fees. Plaintiff opposes.

The Court grants Plaintiff’s request for judicial notice as to Exhibits “A,” “C,” and “D.” The Court denies Plaintiff’s request for judicial notice as to Exhibit “B.”

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in¿Civil Code section 3294, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c(f)(1).)¿“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)¿

The moving party bears the initial burden of production to make a¿prima facie¿showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.)¿Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)¿

When a defendant seeks summary judgment¿or summary adjudication, he/she must show¿either¿(1) that one or more elements of the cause of action cannot be established;¿or¿(2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(p)(2).)¿

Plaintiff alleges that he commenced his employment with defendants on June 30, 2015 as a program director. (Compl., ¶ 6.) On or about July 20, 2018, a program participant with developmental disabilities was being assisted by staff members at CVS, and fell, hitting his head and sustaining a cut and bruising. (Compl., ¶ 8.) At approximately 11:40 a.m., Plaintiff called the program participant’s house manager explaining the situation and informing her that he was going to call emergency services in accordance with company policy. (Compl., ¶ 8.) At approximately 11:45 a.m., the house manager asked Plaintiff not to call emergency services, as her supervisor advised that the house would pick up the program participant and transport him to the emergency room. (Compl., ¶ 8.) Plaintiff immediately called his supervisor, Justin Villarreal (“Villarreal”), to notify him of the foregoing. (Compl., ¶ 8.) Villarreal told Plaintiff to do as the house manager had instructed him, despite the fact that company procedures required him to call emergency services. (Compl., ¶ 8.)

Several days later on July 24, 2018, another individual suffered a head injury at the facility, which appeared more severe than the previous incident on July 20, 2018. (Compl., ¶ 9.) Plaintiff felt he should call 911 in accordance with company policy. (Compl., ¶ 9.) Plaintiff had been previously directed to report any health and safety concerns to his supervisor. (Compl., ¶ 9.) Plaintiff spoke to Villarreal (Plaintiff’s supervisor), as Plaintiff had been directed to do, and Villarreal instructed Plaintiff not to call 911, stating “if it didn’t happen at program, it’s not our problem.” (Compl., ¶ 9.)

Plaintiff felt his supervisor’s directive was wrong and he spoke to another supervisor on scene about the incident and Villarreal’s order not to call 911. (Compl., ¶ 10.) The second supervisor agreed with Villarreal’s decision. (Compl., ¶ 10.) Plaintiff alleges he was terminated on July 30, 2018, for not following company policy (not calling 911), notwithstanding his supervisor’s directive not to do. (Compl., ¶ 13.)

The NM Defendants contend that that Plaintiff’s Health and Safety Code causes of action do not apply to entities such as the NM Defendants. In the Complaint, Plaintiff alleges that “[t]he discriminatory and retaliatory actions of Defendants, including but not limited to terminating Plaintiff from Plaintiffs employment,” were based on violations of Health and Safety Code sections 1278.5 and 1432, and constitute unlawful violations of these statutes. (Compl., ¶¶ 23, 31.)

With regard to the second cause of action, under Health and Safety Code section 1278.5, subdivision (b)(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.” Pursuant to Health and Safety Code section 1278.5, subdivision (b)(2), “[a]n 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.”

The NM Defendants note that for purposes of Health and Safety Code section 1278.5, “‘health facility’ means a facility defined under this chapter, including, but not limited to, the facility’s administrative personnel, employees, boards, and committees of the board, and medical staff.” (Health & Saf. Code, § 1278.5, subd. (i).) Health and Safety Code section 1250 provides that “[a]s used in this chapter, ‘health facility’ means a facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer, and includes the following types…”

With regard to the first cause of action, Health and Safety Code section 1432, subdivision (a) provides that “[n]o licensee shall discriminate or retaliate in any manner against any complainant, or any patient or employee in its long-term health care facility, on the basis or for the reason that the complainant, patient, employee, or any other person has presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding of any governmental entity relating to care, services, or conditions at that facility…” Health and Safety Code section 1418, subdivision (a) provides that “[a]s used in this chapter: (a) ‘Long-term health care facility’ means any facility licensed pursuant to Chapter 2 (commencing with Section 1250) that is any of the following: (1) Skilled nursing facility. (2) Intermediate care facility. (3) Intermediate care facility/developmentally disabled. (4) Intermediate care facility/developmentally disabled habilitative. (5) Intermediate care facility/developmentally disabled-nursing. (6) Congregate living health facility. (7) Nursing facility. (8) Intermediate care facility/developmentally disabled-continuous nursing.”

The NM Defendants assert that they are not “health facilities” as defined in Health and Safety Code Sections 1278.5 and 1250 nor are they “long-term health care facilities” as defined in Health and Safety Code Section 1418. The NM Defendants provide evidence that “NMH is not an Adult Day Program, a hospital, a nursing facility, or any type of short term or long term health facility that is operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, for one or more persons when they are admitted for 24-hour stays or longer.” (Castillo Decl., ¶ 4.) The NM Defendants indicate that “NMH supports organizations across the country that provide home and community-based care services to adults and children with intellectual and developmental disabilities, individuals with complex care needs, people recovering from brain injury, children in foster care, adults and children with autism, and other individuals who may require care across a lifetime. NMH employees, including Area Directors, Regional Directors, and Quality Improvement Specialists…provide support and consultative services to the organizations across the country, including but not limited to, training and the provision of policy manuals and other documents.” (Castillo Decl., ¶ 3.)

The NM Defendants also provide evidence that neither NMHL and NMHI “own or operate a hospital in California, a nursing facility in California, or any type of short term or long term health facility that is operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, for one or more persons when they are admitted for 24-hour stays or longer in California.” (Blair Decl., ¶ 3.) The NM Defendants states that “CVS and NMH are sister companies that share the same corporate parent, National Mentor LLC. Further, Defendants National Mentor Holdings, LLC (‘NMHL’) is the parent corporation of National Mentor LLC, and National Mentor Holdings, Inc. (‘NMHI’) is the parent corporation of NMHL.” (Blair Decl., ¶ 2.)

In the opposition, Plaintiff asserts that “[t]he evidence shows…that NMH operates long term healthcare facilities, utilizing nurses and other healthcare workers, on a more than 24 hours basis and is a covered ‘health facility.’” (Opp’n at p. 13:27-14:1.)

Plaintiff cites to the following testimony from the deposition of Jordin Anderson[2]:
“Q Okay. How about REM California? A Yes, REM California. I have two REM homes, yes. Q Okay. What’s the services provided by REM homes that you -- A Group that I -- that I support? Q Yeah. A Group homes. Two group homes. Q Group homes? Do these individuals stay there overnight? A Yes.” (Galvan Decl., ¶ 3, Ex. 2 (Anderson Depo.) at p. 23:14-24.) Ms. Anderson was asked, “[d]o you have any nurses/LVNs at these facilities?” to which she responded, “Consultants, yes.” (Id. at p. 24:3-5.)

Plaintiff also cites to the following testimony from Ms. Anderson’s deposition: “Okay. And is there any facility that you’re aware of that National Mentor Healthcare provides

support for that provides medical care for a patient?...A Yes, we have two homes, one in Diamond Bar and one in Claremont, that I am a part of that do. Q What -- A They’re called ARFPSHN homes. Q I’m sorry. What are they? A Adult Residential Facilities for Persons with Special Healthcare Needs. Q And do they stay at that facility 24 hours a day? A Yes. Q Okay. And what type of legal—I’m sorry. What type of medical support -- medical services are offered at those facilities? A LVN support, respiratory therapist support, RN support. Q Do doctors come on site occasionally? A Occasionally, yes.” (Galvan Decl., ¶ 3, Ex. 2 (Anderson Depo.) at pp. 26:2-27:3.) Plaintiff also cites to the following testimony from Ms. Anderson’s deposition: “Q Okay. And there’s other regional directors that supervise or provide services for other facilities in California; correct? A Correct.” (Id. at p. 30:17-20.)

Plaintiff also cites to the following testimony from the deposition of Tammi Castillo[3]: “Q And what types of facilities did you provide support for? A The day programs, which are a building that have -- that people come to on a daily basis, Monday through Friday. Then there are homes, as well, where some of the individuals we support live early intervention where our staff go out to the family home, and our family home services where individuals will live in family homes that we -- our staff coaches support. Q So I’m so sorry. What is that called? Individual family homes? A Yes. Q Okay. And which one of these are 24-hour care facilities? A It would be the homes where they live. It’s called an adult residential facility where our staff are there 24/7. Q Okay. And are there medical providers at those facilities? Like, doctors and things like that? A No. Q Okay. Is there nurses or LPNs? 2 A In some of the locations, yes.” (Galvan Decl., ¶ 9, Ex. 8 (Castillo Depo.) at pp. 29:5-30:2.) Plaintiff also cites to the following testimony from Ms. Castillo’s deposition: “Q Okay. And does National own Corrigan Cole Vocational or Horrigan Cole?...A National is the governing or the managing entity.” (Id. at pp. 83:22-84:1.)

In the reply, the NM Defendants assert that the foregoing evidence “merely implies that NMH partnered with entities that allegedly qualify as health facilities and does not create a disputed fact as to whether NMH itself is [sic] ‘health facility’ as required by Health & Safety Code §§ 1278.5 and 1432.” (Reply at p. 4:8-11.) The NM Defendants state that “Plaintiff does not offer any evidence to support the conclusion that NMH owned or is licensed to operate a health facility pursuant to the Health & Safety Code. Instead, Plaintiff’s evidence, at its best, only suggests that NMH provided support services to health facilities, which California Courts have routinely held to not mean they should be qualified as a health facility.” (Reply at p. 4:12-15.)

The NM Defendants cite to St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 305, where “Plaintiff Carla St. Myers worked as a nurse practitioner at a rural clinic that was part of a medical center owned and operated by defendant Dignity Health. During the three years she worked there, she submitted over 50 complaints about working conditions and was also the subject of several investigations based on anonymous complaints. All the investigations concluded the complaints against St. Myers were unsubstantiated and no action was taken against her. She found another job and resigned. Claiming her resignation was a constructive termination due to intolerable working conditions, St. Myers sued Dignity Health and Optum360 Services, Inc.; the latter was a company that provided revenue cycle services to Dignity Health.”

In St. Myers, Court of Appeal found that “St. Myers’s contention has no merit. She asserts Optum360 is a health facility because it operates MTMC by managing and influencing day-to-day operations. A ‘health facility’ under this statute ‘means a facility defined under this chapter, including, but not limited to, the facility’s administrative personnel, employees, boards, and committees of the board, and medical staff.’ (§ 1278.5, subd. (i).) Chapter 2 of division 2 of the Health and Safety Code defines ‘health facility’ as ‘a facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy.’ (§ 1250.) The target defendant of section 1278.5 is the facility, here MTMC…Optum360 provided end-to-end revenue cycling services to MTMC. These services included scheduling, patient registration, health information management in the form of coding and transcription, billing, and collections. Optum360 provided services to the front office staff; the office staff did not provide medical care. No Optum360 staff worked onsite at MTMC. This evidence established that Optum360 was a third party service provider to MTMC; it did not operate MTMC. Optum360 provided ancillary services; it did not operate or manage ‘the diagnosis, care, prevention, and treatment of human illness.’ (§ 1250.) St. Myers argues that without the scheduling and billing services provided by Optum360, MTMC’s clinics would be unable to operate. This may be an accurate observation, but it is not relevant; a medical clinic needs power and water to operate, but that does not make utility companies ‘health facilities’ under the statute.” (St. Myers v. Dignity Health, supra, 44 Cal.App.5th at pp. 313-314.) Plaintiff does address the St. Myers case in the opposition.

Here too, Plaintiff does not appear to provide evidence that the NM Defendants are a

“facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer…” (Health & Saf. Code, § 1250, emphasis added.) Plaintiff also does not appear to provide evidence that the NM Defendants are a “facility licensed pursuant to Chapter 2 (commencing with Section 1250) that is any of the following: (1) Skilled nursing facility. (2) Intermediate care facility. (3) Intermediate care facility/developmentally disabled. (4) Intermediate care facility/developmentally disabled habilitative. (5) Intermediate care facility/developmentally disabled-nursing. (6) Congregate living health facility. (7) Nursing facility. (8) Intermediate care facility/developmentally disabled-continuous nursing.” (Health & Saf. Code, §1418, subd. (a), emphasis added.) Rather, Plaintiff appears to solely rely on evidence that NMH provided support services to alleged health facilities.

In addition, as noted by the NM Defendants in the reply, Plaintiff does not appear to offer any evidence or argument in the opposition to suggest that either NMHI or NMHL (the “Holding Companies”) qualify as a health facility under the Health and Safety Code.

Based on the foregoing, the Court finds that the NM Defendants have met their burden of showing that Plaintiff’s causes of action for violation of Health and Safety Code section 1278.5 and Health and Safety Code section 1432 have no merit as to the NM Defendants, and that Plaintiff has failed to raise a triable issue of fact as to these causes of action.

Next, the NM Defendants contend that Plaintiff’s claim for punitive damages fails. The NM Defendants assert that Plaintiff cannot offer any evidence to establish that the conduct of Mr. Villarreal, Ms. Castillo, Ms. Anderson, or any other individuals, warrants punitive damages.

The NM Defendants provide evidence that on July 20, 2018, at approximately 11:30 a.m., a program participant fell to the floor while attempting to push himself up from his wheelchair. (Schwan Decl. ¶ 8, Ex. I at p. 3) Plaintiff called the program participant’s house manager at 11:40 a.m. and explained the situation. (Ibid.) Plaintiff explained that he was going to call emergency services, and the house manager asked Plaintiff to wait and indicated she would call back. (Ibid.) At 11:45 a.m., the program participant’s house manager explained that the house would pick up the program participant and transport him to the emergency room. (Ibid.)

Ms. Anderson states in her declaration that “Tammi Castillo and I made the decision to terminate Matthew Porpora’s employment because he did not call 911 when a Program Participant with initials DM fell and hit his head on the floor.” (Anderson Decl., ¶ 5.) Ms. Anderson states that “[i]n doing so, I reviewed the ‘heads up’ email Porpora sent to me and others that day…the Incident Report related to the Program Participant’s fall…and Justin Villarreal’s notes of his investigation that he provided to Carol Barton…” (Anderson Decl., ¶ 5.)

The NM Defendants cite to Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287, where the Court of Appeal noted that “[p]unitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages…Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” The NM Defendants assert that “there is no evidence that rises to the level of ‘extreme indifference’ and Plaintiff is not entitled to the disfavored punitive damages remedy…” (Mot. at p. 13:12-14.)

In the opposition, Plaintiff asserts that there are triable issues on malice, fraud, or oppression. Pursuant to Civil Code section 3294, subdivision (a), “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Plaintiff asserts that “[i]n order to avoid triggering negative scrutiny or even reprimand from CCLD for failure to report or care for the program participant, the [sic] Anderson, Castillo and Barton developed a ‘911 call policy’ that suddenly required emergency services to be called for all head injuries (that allegedly occur at the facility), regardless [sic] severity despite CVS personnel having the practice of assessing injuries on a case-by-case basis before determining whether 911 should be called.” (Opp’n at p. 16:5-10.) Plaintiff also asserts that “[t]he NMH managers engaged in despicable and oppressive conduct by ratifying their QIS’ lie and then created a ‘911 call policy’ on an ad hoc basis to shift blame against Plaintiffs and vulnerable patient’s rights.” (Opp’n at p. 16:14-16.)

With regard to the evidence relied upon by Plaintiff in support of the foregoing, Plaintiff’s response to the NM Defendants’ Undisputed Material Fact No. 23 provides, inter alia, that “[a]ccording to NMH’s directors Anderson and Castillo, however, the policy was supposedly to call 911 for all head injuries, regardless of severity. This policy was created on an ad hoc basis by Anderson, Castillo and Ms. Barton to fire Plaintiff and avoid regulatory body scrutiny. In contradiction to the ad hoc created 911 call policy, the NMH managers carved an exception to the policy where emergency services was not mandated when program participants injured themselves (ie., their head) offsite from the facility.” In support of this assertion, Plaintiff cites to the following testimony from Ms. Anderson’s deposition: “Q…Would that have been appropriate by Mr. Villarreal to tell -- here you have a patient – didn’t happen at the facility, banged his head, came with a bruising and Matt Porpora was going to call 911 and if it were true Justin Villarreal told him not to call 911, is that appropriate?...Q Is it appropriate and consistent with the company’s policies?...Q And we’re looking at it. Head injuries, ‘When a head makes contact,’ -- A In our facility -- these are our company policies when it happens in our facility --

Q Hold on. Where does it say that? Where does it say that? A Well, it’s our – it’s the company handbook. So -- Q Okay. So we have to make that interpretation. Okay. So only if it happens –

A Well -- well, yeah because if somebody comes to program -- if they come to our facility, that would indicate that they did not bump their head in our facility. So I don’t know what another facility’s, you know, policy is on head injuries. I don’t know. I only know ours. Q Okay. So he bumped his head during transport and he’s bruised, he brings him to facility. Because it didn’t happen at your facility, does it change the severity of the situation of the head injury?...THE WITNESS: No, we didn’t -- I mean, it doesn’t -- I mean, he’s -- if he’s got a head injury, but this emergency protocol is followed when it happens in our facility.” (Galvan Decl., ¶ 3, Ex. 2 (Anderson Depo.) at pp. 196:4-197:21.)

But Plaintiff does not appear to cite to evidence demonstrating that the NMH Defendants “created a ‘911 call policy’ on an ad hoc basis to shift blame against [Plaintiff]…” (Opp’n at p. 16:15-16.) In the reply, the NMH Defendants assert that “Plaintiff’s own testimony confirms that CVS utilized a 911 Policy prior to and during the events at issue in this Lawsuit.” (Reply at p. 8:1-2.) In support of this assertion, the NMH Defendants cite to the following testimony from Plaintiff’s deposition: “Q…I believe I understood you to testify earlier that if it happened at Horrigan Cole, and they hit their head, that you called 911. Now you’re saying that that’s not the Company’s policy and that you decide based on the severity of it, you kind of make your own assessment? A. Yes. I mean, the company policy is to call 911. However, depending on the severity of injury, you may not need to call 911. You may call a party and decide that this isn’t something you need to call emergency services for. There’s somewhat of a gray area depending on the severity of the nature. Q. What is the gray area in the company’s policy -- the written policies about whether to call 911 for a head injury? A. Well, I’m not exactly sure. But I’m sure it depends on the nature of the severity of the injury to call 911.” (Galvan Decl., ¶ 2, Ex. 1 (Porpora Depo.) at p. 145:2-23.)

The NM Defendants assert that “wrongful conduct at the heart of Plaintiff’s punitive damages claim can be boiled down to his disagreement with the application of the 911 Policy to his termination decision. California Courts…hold that such conduct is not sufficient to warrant punitive damages.” (Reply at p. 8:3-6.) The NM Defendants cite to Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 716, where the Court of Appeal noted that “[t]he only evidence of wrongful conduct directed toward Scott was her termination for an improper reason. This evidence was insufficient to support a finding of despicable conduct, because such action is not vile, base or contemptible. Nor do we find this evidence shows a conscious and deliberate disregard of plaintiff’s interests. Conscious disregard of rights is conduct by a defendant who is aware of the probable dangerous consequences of such conduct to plaintiff’s interests and wilfully and deliberately fails to avoid those consequences.” (Internal quotations omitted.)

Based on the foregoing, the Court finds that the NM Defendants have met their burden of establishing that Plaintiff’s claim for punitive damages has no merit as to the NM Defendants, and that Plaintiff has failed to show that a triable issue of material fact exists as to his claim for punitive damages.[4]

In the Complaint, Plaintiff alleges that he is “entitled to recover prevailing party attorney’s fees pursuant to the provision of the California Labor Code and by other statutory entitlements.” (Compl., ¶ 50.)

As to Plaintiff’s causes of action for violation of Health and Safety Code sections 1432 and 1278.5, the NM Defendants assert that “if the Court grants this Motion as to Plaintiff’s Health & Safety Code claims, there would, of course, be no basis to obtain attorney’s fees regardless.” (Mot. at p. 13:23-24.) As set forth above, the Court finds that the NM Defendants have met their burden of showing that Plaintiff’s causes of action for violation of Health and Safety Code section 1278.5 and Health and Safety Code section 1432 have no merit as to the NM Defendants, and that Plaintiff has failed to raise a triable issue of fact as to these causes of action. Thus, the Court likewise grants the NM Defendants’ motion for summary adjudication as to Plaintiff’s claim for attorney’s fees in connection with the first and second causes of action.

As to the fourth cause of action for wrongful termination in violation of public policy, the NM Defendants cite to Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1100-1101 (overruled on other grounds), where the California Supreme Court noted that “[i]t would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge any employee … on the ground that the employee declined to commit perjury, an act specifically enjoined by statute…Accordingly, we held that such a discharge subject[s] the employer to liability for compensatory and punitive damages under normal tort principles.” (Internal quotations and citations omitted.) The NM Defendants assert that Plaintiff thus

But the NM Defendants do not cite to any holding in Gantt demonstrating that Plaintiff cannot recover attorney’s fees or costs in connection with his wrongful termination claim. The Court does not find that the NM Defendants have met their burden of demonstrating that Plaintiff’s claim for attorney’s fees fails as to the fourth cause of action.

Lastly, the NM Defendants assert that “as to Labor Code § 1102.5, the statute was amended effective January 1, 2021 to provide for a successful plaintiff’s recovery of attorneys’ fees and costs. See Labor Code § 1102.5(j). However, prior to January 1, 2021, the statute did not provide for attorney’s fees or costs and there is no indication in the statute or otherwise that the 2021 amendment to the statute should apply retroactively.” (Mot. at p. 13:25-14:4, emphasis omitted.) The NM Defendants note that the instant case was filed on July 21, 2020. (Schwan Decl. ¶ 2.)

The “History” of Labor Code section 1102.5 provides that “Stats 2020 ch 344 § 2 (AB 1947)” is “effective January 1, 2021.” (Lab. Code, § 1102.5.) The “Legislative Counsel’s Digest” pertaining to AB 1947 provides that “[t]his bill would authorize a court to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of the provisions described above.” (2020 Cal ALS 344, 2020 Cal AB 1947, 2020 Cal Stats. ch. 344.) The NM Defendants attach as Exhibit “A” to their request for judicial notice a California Senate Judiciary Committee Analysis, A.B. 1947 (2019-2020 Reg. Sess.), which provides, “[t]he bill is silent about its effect on pre-existing claims. In the absence of clear legislative intent to the contrary, a statute is presumed to operate only prospectively. (Aetna Cas. & Sur. Co. v. Indus trial Acc. Commission (1947) 30 Cal.2d 388, 393.).” (NM Defendants’ RJN, Ex. A.)

In the opposition, Plaintiff asserts that “[b]efore the amendment, in any event, there are instances of an award of attorney fees being awarded in connection with Labor Code section 1102.5 whistleblower statutory actions.” (Opp’n at p. 20:8-9.) In support of this assertion, Plaintiff cites to Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 266, where the Court of Appeal noted that “Defendants’ challenge to the attorney’s fee award is foreclosed by our conclusion that substantial evidence supports the jury’s single employer finding. Their attorney’s fees argument depends on reversal of both the Title VII and FEHA verdicts, and by affirming Title VII liability we also affirm plaintiff’s legal entitlement to attorney’s fees (defendants do not challenge as excessive the amount of the fee award)…As defendants challenge only plaintiff’s legal entitlement to fees, and plaintiff was entitled to attorney’s fees under Title VII, defendants have not demonstrated error in the attorney’s fee award.” (Emphasis omitted.) But Plaintiff does not show that the Mathews Court found that attorney’s fees were recoverable under Labor Code section 1102.5 in that case.

Based on the foregoing, the Court grants the NM Defendants’ motion for summary adjudication as to Plaintiff’s claim for attorney’s fees, except as to Plaintiff’s fourth cause of action for wrongful termination in violation of public policy.

For the foregoing reasons, the NM Defendants’ motion for summary adjudication is granted as to Plaintiff’s first and second causes of action, Plaintiff’s claim for punitive damages, and Plaintiff’s claim for attorney’s fees in connection with his first, second, and third causes of action. The NM Defendants’ motion for summary adjudication of Plaintiff’s claim for attorney’s fees in connection with the fourth cause of action is denied.

[1]The Court notes that Plaintiff interposes certain evidentiary objections in his opposing separate statement of undisputed material facts. The Court notes that pursuant to California Rules of Court, rule 3.1354, subdivision (b), “[a]ll written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.” Accordingly, the Court declines to rule on the objections contained within Plaintiff’s opposing separate statement.

[2]In her declaration filed in support of the motion, Ms. Anderson states that she is Regional Director employed by NMH. (Anderson Decl., ¶ 1.)

[3]In her declaration filed in support of the motion, Ms. Castillo states that she is an executive director for NMH. (Castillo Decl., ¶ 1.)

[4]Based on the foregoing, the Court need not and does not address the NM Defendants’ assertion that Mr. Villareal, Ms. Castillo, and Ms. Anderson were not officers, directors, or managing agents of the NM Defendants.

Superior Court of California

County of Los Angeles

Department 50