Jadwin v. County of Kern, et al.

Filing 310

MEMORANDUM, DECISION and ORDER re Defendants' Motion for Judgment on the Pleadings, signed by Judge Oliver W. Wanger on 4/3/09. (Gil-Garcia, A)

1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 While some California courts have referred to the statutory scheme as the "Tort Claims Act," the California Supreme Court has indicated that "Government Claims Act" is an appropriate appellation. See City of Stockton v. Superior Court, 42 Cal. 4th 730, 27-28 & n.7 (2007). 1
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DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN; PETER BRYAN (BOTH individually and in his former capacity as Chief Executive Of Kern Medical Center); IRWIN HARRIS, M.D.; and DOES 1 through 10, inclusive, Defendants. I. Before the court is

1:07-CV-00026-OWW-DLB MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

INTRODUCTION a motion collectively brought by

Defendants County of Kern ("County"), Peter Bryan and Irwin Harris, M.D., for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Defendants contend that certain claims in

the Second Amended Complaint filed by Plaintiff David Jadwin, D.O., are barred because Plaintiff failed to comply with the requirements of California's Government Claims Act ("Government Claims Act"), Cal. Gov't Code §§ 900 et seq.1 As the pleadings reveal, pursuant to the Government Claims Act, Plaintiff presented a written claim to the County on July 3,

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2006 ("Claim"), which was not acted upon by the County and thus deemed rejected. (Doc. 241 at Ex. 2-3.) Defendants maintain that

this Claim did not encompass the state law claims that Plaintiff ultimately asserted in his Second Amended Complaint; accordingly, Plaintiff's state law claims, which should have been presented to the County in his government Claim, are barred. II. A. BACKGROUND2

Plaintiff's Employment With The County And Chronology of Events Preceding The Presentment Of His Claim As alleged, on October 24, 2000, pursuant to an employment

contract with the County, Plaintiff served as the Chair of the Pathology Department at Kern Medical Center ("KMC") and as the Medical Director of the KMC clinical laboratory. (Doc. 241 at 9.) The County expected Plaintiff to perform administrative duties as the Chair of Pathology, perform clinical duties as a pathologist, and oversee KMC's blood bank and transfusion service. (Id.)

Plaintiff's stated employment term was through November 30, 2006. (Id.) On or about November 12, 2002, the County modified Plaintiff's employment contract. The County increased Plaintiff's compensation and extended his term of employment to October 4, 2007. (Id.)

On or about December 16, 2005, due to severe depression, Plaintiff began a medical leave. (Id. at 6, 19.) On or about January 13, 2006, Plaintiff submitted a copy of his psychiatrist's certification stating that Plaintiff needed a reduced work schedule

The information in this section is taken from Plaintiff's Second Amended Complaint. 2

2

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leave from, at minimum, December 16, 2005, to March 16, 2006. (Id. at 19.) The Human Resources ("HR") Department formally approved of the leave. (Id.) On or about March 16, 2006, via e-mail Plaintiff informed Peter Bryan, Chief Executive Officer of KMC, that Plaintiff would take Bryan's suggestion and take two to three additional months of leave. (Id.) Plaintiff also indicated that he had a surgery

scheduled for March 22, 2006, and that he anticipated a severalweek recovery period. (Id.) On or about April 20, 2006, Plaintiff received a notice from HR that his leave of absence had expired on March 15, 2006, and that, to extend his leave, he needed to submit a Request for Leave of Absence form by April 25, 2006. (Id. at 20.) Around April 26,

2006, Plaintiff submitted the requested form along with another certification from his psychiatrist stating that, due to his serious medical condition, Plaintiff needed a six-month to one-year extension on his leave, i.e., an extension on his reduced work schedule leave. (Id.) On or about April 28, 2006, Bryan, in a meeting with

Plaintiff, Karen Barnes (Deputy County Counsel) and Steve O'Conner from HR, ordered Plaintiff to take a full-time medical leave from May 1, 2006, to June 16, 2006, instead of continuing his reduced work schedule. (Id.) Bryan stated that he needed to know by June

16, 2006, whether Plaintiff would resign as the Chair of Pathology and indicated that if Plaintiff resigned, Plaintiff still could serve as a staff pathologist. (Id.) Bryan further required

Plaintiff to commence working full-time on June 17, 2006, or to resign, because "the hospital needs you here full-time." (Id. at 3

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20-21.) On or about June 2, 2006, Plaintiff wrote Bryan and requested additional time, due to certain physical ailments, to make a decision regarding his continued employment. Plaintiff indicated

that he underwent nasal surgery in early May and in late May he fell down a staircase and injured his ankle ­ given these events, Plaintiff had not considered or rendered a decision regarding his employment situation and could not come to the office by June 16. (Id. at 21.) On or about June 14, 2006, Bryan e-mailed Plaintiff and informed him that he could have ninety days of Personal Necessity Leave after which he could return to work as a pathologist, but Bryan was withdrawing Plaintiff's appointment as the Chair of the Pathology Department. (Id.) Bryan wrote: "[m]y decision to do

this, Dr. Jadwin, is based solely on your inability to provide consistent and stable leadership in the department for most of the past eight to nine months. You have used all of your sick and

vacation time in addition to using all available time under the medical leave provisions of County policy. It is unfortunate that

you had your accident which delayed your return but the hospital needs to move on." (Id.) Later, on or about June 14, 2006, Bryan

sent a letter addressed to Plaintiff reiterating that Bryan was rescinding Plaintiff's chairmanship and stating that the

"Department of Pathology needs a full-time chairman." (Id. at 2122.) Plaintiff submitted his Claim to the County less than one

month later. B. Plaintiff's Claim To The County Plaintiff submitted his Claim to the County on a form entitled 4

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"CLAIM AGAINST THE COUNTY OF KERN," which he dated July 3, 2006.3 A separate typed document is attached to the Claim and in it, Plaintiff asserted various claims. 1. Breach of Contract labeled his first claim "Breach of Contract."

Plaintiff

Plaintiff asserted that pursuant to an employment contract with the County he was the Chair of Pathology at KMC. (Doc. 241 at Ex. 2.)

On June 14, 2006, Bryan informed Plaintiff that Plaintiff was "being stripped of [his] chairmanship effective June 17, 2006, due to his taking excessive sick leaves. As of June 14, 2006,

[Plaintiff] had taken 12 weeks of CFRA sick leave and approx. 3-4 weeks of County sick leave based on doctor's certifications which he submitted." (Id.) Plaintiff asserted that in "stripping

[Plaintiff] of chairmanship" Bryan failed to comply with the KMC bylaws which were incorporated into his employment contract. (Id.) 2. Wrongful Demotion/Termination labeled his second claim "Wrongful

Plaintiff

Demotion/Termination in Violation of Cal. Bus. & Prof. C. § 2056 & Conspiracy Relating Thereto."4 Plaintiff asserted that Bryan's

The Claim is attached as an exhibit to the Second Amended Complaint. California Business and Professions Code § 2056(c) provides that "[t]he application and rendering by any person of a decision to terminate an employment or other contractual relationship with, or otherwise penalize, a physician and surgeon principally for advocating for medically appropriate health care consistent with that degree of learning and skill ordinarily possessed by reputable physicians practicing according to the applicable legal standard of care violates the public policy of this state. No person shall terminate, retaliate against, or otherwise penalize a physician and surgeon for that advocacy, nor shall any person prohibit, restrict, 5
4

3

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"demotion" of Plaintiff constituted a "constructive termination," as he no longer felt "welcome at KMC." (Id.) This unwelcome

sentiment was "reinforced" when on June 26, 2006, Bryan informed Plaintiff that "he was no longer permitted to enter KMC grounds, contact any KMC employee or faculty member or access any KMC equipment or networks for any reason for the remainder of his leave." (Id.) Plaintiff retaliation for asserted "raising that his demotion in by Bryan and was in

concerns[,]"

e-mails

various

communications to "Bryan and other medical staff leadership[,]" "relating to patient health care." (Id.) these concerns, which he described Plaintiff listed some of "crisis issues which

as

critically jeopardized patient health care at KMC": i) [the] need for follow-up on failure of a formerlyemployed KMC pathologist to detect cancer diagnoses in numerous patient prostate biopsies; ii) chronically incomplete or inaccurate KMC blood component product chart copies, in violation of state regulations and accreditation standards of JCAHO, CAP, and AABB; iii) chronically inadequate fine needle aspirations collected by KMC radiologists leading to incomplete and/or incorrect patient diagnoses and greatly increased expense for KMC; iv) [the] need for KMC pathology dept. I) to review outsourced pathology diagnoses prior to undergoing major therapy in reliance on those diagnoses and ii) to approve outsourcing of pathology to outside vendors; and v) [the] need for effective oversight of blood usage program by pathology dept.

or in any way discourage a physician and surgeon from communicating to a patient information in furtherance of medically appropriate health care." 6

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Plaintiff claimed that he raised these concerns prior to the date that Bryan informed Plaintiff that Plaintiff was being stripped of his chairmanship (June 14, 2006). (Id.)
3.

Per Se Libel/Ratification by KMC a third claim, "Per Se Libel/Ratification by KMC,"

In

Plaintiff asserted that he received a letter dated October 17, 2005, from Drs. Eugene Kercher (President of KMC Medical Staff), Scott Ragland (President-elect of KMC Medical Staff), Jennifer Abraham (Past President of KMC Medical Staff) and Irwin Harris (KMC Chief Medical Officer) which informed Plaintiff that "three letters written by [Plaintiff's] colleagues at KMC expressing

`dissatisfaction' with [Plaintiff] would be `entered into your medical staff file.'" (Id.) Plaintiff asked to see the three

letters, but his request was refused. Plaintiff asserts that in so "reprimanding" him, Drs. Kercher, Ragland, Abraham and Harris "failed to comply with KMC bylaws." (Id.) Later, on January 6, 2006, Plaintiff received a letter from Barnes to which were

attached redacted versions of the three letters. (Id.) One of the letters was "defamatory" and "maliciously defamed [Plaintiff's] professional competence." (Id.) 4. Related Causes of Action

In a catchall paragraph headed "Related Causes of Action," Plaintiff stated he "also seeks to bring claims of intentional infliction of emotional distress, negligent hiring, negligent

supervision and negligent retention in relation to the foregoing." (Id.) On his Claim form, Plaintiff indicated that he "met with Mr. Bernard Barmann [County Counsel] with respect to the foregoing on 7

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February 9, 2006." (Id.) C. Plaintiff's Second Amended Complaint On October 7, 2008, approximately two years and three months after he submitted his Claim to the County, Plaintiff filed his Second Amended Complaint in this action. Plaintiff's Second Amended Complaint contains eleven claims, all arising from his employment with the County. October 4, 2006, after his Personal Necessity As alleged, on Leave ended,

Plaintiff decided to return to work at KMC as a staff pathologist. (Doc. 241 at 22.) Prior to his return, Plaintiff signed an

amendment to his employment contract which reduced his base salary by over thirty-five percent. (Id.) On or about November 28, 2006, Plaintiff "finally" reported his concerns about patient care issues and "non-compliance with applicable laws and regulations and accreditation standards" to the "Authorities," defined in the Second Amended Complaint as the Joint Commission on Accreditation of Hospital Organizations, the College of American Pathologists, and the California Department of Health Services. (Id. at 7, 10-11, 32.) On or about December 4, 2006, Plaintiff submitted a written complaint to KMC leadership about additional concerns regarding the quality of patient care and the deterioration of the Pathology Department. (Id. at 7.) Around December 7, 2006, David Culberson,

interim Chief Executive Officer of KMC, sent a letter to Plaintiff informing Plaintiff that he was being placed on paid administrative leave pending resolution of a personnel matter. (Id. at 8, 23.) On April 4, 2007, Plaintiff placed Defendant County on notice that his involuntary paid leave was denying him the ability to earn income 8

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from

professional

fee

billing

and

that

Plaintiff's

physician

believed that part-time work would be "therapeutic" for Plaintiff. (Id. at 23.) The County notified Plaintiff that he would remain on paid administrative leave until his employment contract expired on October 4, 2007, and that the County did not intend to renew his contract. (Id. at 8.) On October 4, 2007, Plaintiff's employment

contract expired. (Id.) The state law claims in Plaintiff's Second Amended Complaint (which are the subject of Defendants' motion) are all statutory. Two of them are statutory "whistleblower" claims (as Plaintiff calls them), and the remainder of the state law claims arise under California's Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900 et seq. Because Defendants' motion deals only with

Plaintiff's state law claims, Plaintiff's federal law claims are not discussed. The following is a brief summary of Plaintiff's

state law claims. 1. Whistleblower Claims Plaintiff's first claim is for "Retaliation in Violation of Health & Safety Code § 1278.5." (Doc. 241 at 31.) currently provides in pertinent part: (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. (B) Has initiated, participated, or cooperated in 9 That section

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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) No entity that owns or operates a health facility, or which owns or operates any other health facility, shall discriminate or retaliate against any person because that person has taken any actions pursuant to this subdivision. Cal. Health & Safety Code § 1278.5(a)-(b)(2).5 Plaintiff asserts

that during his employment he reported concerns he was having regarding suspected unsafe care and conditions of patients at KMC. He raised these concerns to various parties including Bryan, key members of KMC's medical staff, his employer, Barmann, and the Authorities. (Doc. 241 at 10, 31.) Plaintiff claims that he was unlawfully retaliated against "because he engaged in whistleblowing activity protected" by the statute. (Id. at 31.) Plaintiff's second claim is for "Retaliation In Violation of Lab. Code § 1102.5." (Id.) part: (b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. Cal. Labor Code § 1102.5(b). Plaintiff alleges that he reported That section provides in pertinent

Section 1278.5 was amended effective January 1, 2008 (before Plaintiff filed his Second Amended Complaint). The excerpted portions of the statute were taken from this amended version which remains in current force. For purposes of this order only, it is assumed that the amended version was in effect at all material times. The impact of the amendment will be addressed in a separate order. 10

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his reasonable suspicions about illegal, non-complaint, and unsafe care and conditions of patients at KMC. (Doc. 241 at 32.)

Plaintiff reported such matters to various parties including Bryan, key members of KMC's medical staff, his employer, Barmann, and Authorities. (Doc. 241 at 10, 32.). Plaintiff claims that he was

unlawfully retaliated against "because he engaged in activity protected" by the statute. (Id. at 32.) 2. FEHA Claims Plaintiff's third claim is for a violation of California's Moore-Brown-Roberti Family Rights Act, i.e., the "CFRA" (Cal. Gov't Code §§ 12945.1, 12945.2).6 The CFRA provides certain family care

and medical leave rights to employees, § 12945.2, and makes it unlawful for an employer to "refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of . . . . [the] individual's exercise of the right to family care and medical leave" under the statute, § 12945.2(l)(1). Plaintiff

alleges that Defendants retaliated against him for "requesting and taking medical leave." (Doc. 241 at 33.) Plaintiff's fifth claim for a "Violation of CFRA Rights" alleges that Defendants, in contravention of California Government Code § 12945.2(a), violated Plaintiff's rights under the CFRA by denying him a "medically necessary reduced work schedule" and "requiring [him] to take full-time medical leave when he was ready, willing, and able to work part-time." (Doc. 241 at 35.) In his sixth claim, Plaintiff alleges a violation of

California Government Code § 12940(a), which prohibits an employer

6

The CFRA is a part of the FEHA. 11

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from, among other things, discriminating against an employee on the basis of disability. Plaintiff alleges that Defendants, "through

their course of conduct[,] denied [him] a benefit of employment, in whole or in part, because he is an individual with known

disabilities." (Doc. 241 at 35.)

Plaintiff alleges that his

"depression" is a disability. (Id. at 23-24.) In his seventh claim, Plaintiff asserts that Defendants

violated California Government Code § 12940(m), which makes it unlawful for "an employer . . . to fail to make reasonable

accommodation for the known physical or mental disability of an applicant or employee." In his eighth claim, Plaintiff asserts that Defendants

violated California Government Code § 12940(n), which makes it unlawful for "an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or

applicant with a known physical or mental disability or known medical condition." In his eleventh claim, Plaintiff asserts that Defendants violated California Government Code § 12940(h), which makes it unlawful for "any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." At the time he filed this action on January 6, 2007 (i.e.,

the filing date of his first complaint), Plaintiff was still employed with the County. Plaintiff's Second Amended Complaint 12

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asserts that he opposed employment practices forbidden under the FEHA "by filing a charge with the DFEH and filing this lawsuit, which included claims brought under the FEHA" and, as a

consequence, he was retaliated against. (Doc. 241 at 39-40.) As is evident from the pleadings, and as Defendants point out, none of Plaintiff's state law claims in the Second Amended

Complaint were specifically mentioned in Plaintiff's earlier Claim to the County. III. STANDARD FOR JUDGMENT ON THE PLEADINGS

A party may move for judgment on the pleadings after the pleadings are closed. Fed. R. Civ. P. 12(c). A Rule 12(c) motion

challenges the legal adequacy of the opposing party's pleadings. Westlands Water Dist. v. Bureau of Reclamation, 805 F. Supp. 1503, 1506 (E.D. Cal. 1992). In deciding the motion, a court must take

"all material allegations of the non-moving party as contained in the pleadings as true, and constr[ue] the pleadings in the light most favorable to th[at] party." Doyle v. Raley's Inc., 158 F.3d

1012, 1014 (9th Cir. 1998). "[T]he allegations of the moving party which have been denied are assumed to be false." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1990). To prevail on a Rule 12(c) motion, the moving party must "clearly establishe[] on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Id. A judgment on the pleadings in

favor of a moving defendant is "not appropriate if the complaint raises issues of fact that, if proved, would support the

plaintiff's legal theory."

Winter v. I.C. Sys. Inc., 543 F. Supp.

2d 1210, 1212 (S.D. Cal. 2008) (citing General Conference Corp. of 13

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Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989)). A judgment on the

pleadings also is not appropriate if the court "goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment" pursuant to Rule 12(d). Hal Roach Studios, 896 F.2d at 1550. A district court may,

however, "consider certain materials - documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice - without converting the motion to dismiss [or motion for judgment on the pleadings] into a motion for summary judgment." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Summit Media LLC v. City of Los Angeles, 530 F. Supp. 2d 1084, 1096 (C.D. Cal. 2008). In assessing the adequacy of the opposing party's pleadings, the legal standard applied to a motion for judgment on the

pleadings is the same as the standard applied to a Rule 12(b)(6) motion to dismiss. See Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). IV. CALIFORNIA'S GOVERNMENT CLAIMS ACT

Subject to inapplicable exceptions, the Government Claims Act dictates that "all claims for money or damages against local public entities" must be presented to them, § 905, and "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 . . . until a written claim therefor has been presented to the public entity and has been acted upon . . . or has been deemed to have been rejected," § 945.4. A claim for personal injury or property damage must be presented within six months after accrual, and all other 14

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claims must be presented within a year. § 911.2; see also City of Stockton v. Superior Court, 42 Cal. 4th 730, 738 (2007). The

failure to timely present a claim for money or damages to a public entity "bars a plaintiff from filing a lawsuit against that

entity." City of Stockton, 42 Cal. 4th at 738 (internal quotation marks omitted). A plaintiff must comply with the Government Claims Act not only when asserting a claim for money or damages against a public entity, but also when asserting a claim for money or damages against another public employee (former or current) for an act or omission falling within the scope of that employee's public

employment (in such cases, presentation to the public employer, not the individual, is required). Maynard v. City of San Jose, 37 F.3d

1396, 1406 (9th Cir. 1994); Wilson-Combs v. Cal. Dep't of Consumer Affairs, 555 F. Supp. 2d 1110, 1118 (E.D. Cal. 2008); Julian v. City of San Diego, 183 Cal. App. 3d 169, 175 (1986). In terms of required content, a claim presented to a public entity must show all of the following: (a) The name and post office address of the claimant. (b) The post office address to which the person presenting the claim desires notices to be sent. (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any 15

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prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case. Cal. Gov't Code § 910. A claim must "fairly describe what [the]

entity is alleged to have done." Stockett v. Ass'n Of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446 (2004). The

Government Claims Act is intended "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 (internal quotation marks omitted). With respect to the congruence between a presented claim and a plaintiff's ultimate complaint, "[i]f a plaintiff relies on more than one theory of recovery against the [public entity], each cause of action must have been reflected in a timely claim." Nelson v.

California, 139 Cal. App. 3d 72, 79 (1982); see also Stockett, 34 Cal. 4th at 447; Dixon v. City of Livermore, 127 Cal. App. 4th 32, 40 (2005); Fall River Joint Unified Sch. Dist. v. Superior Court, 206 Cal. App. 3d 431, 434 (1988). "In addition, the factual

circumstances set forth in the written claim must correspond with the facts alleged in the complaint; even if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim." Id. at 79; see also Stockett, 34 Cal. 4th at 447; Dixon, 127 Cal. App. 4th at 40; Fall River Joint Unified Sch. Dist., 206 Cal. App. 3d at 434. The timely presentation of a claim under the Government Claims Act is not merely a procedural requirement, it is an actual 16

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"element of the plaintiff's cause of action." Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007). complaint, excusing the plaintiff with "must the allege claim facts As such, in the demonstrating or

compliance

presentation

requirement.

Otherwise, his complaint . . . fail[s] to state facts sufficient to constitute a cause of action." State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1243 (2004); see also Shirk, 42 Cal. 4th at 209. V. DISCUSSION AND ANALYSIS

Defendants take issue with the variance between Plaintiff's original government Claim and the state-law claims ultimately asserted in Plaintiff's Second Amended Complaint. In opposition to the motion, Plaintiff argues, among other things, that any variance between his Claim and the FEHA claims asserted in his Second Amended Complaint is irrelevant because his FEHA claims are exempt from the Government Claims Act requirements.7 At oral argument on

the motion, Defendants conceded the point and argued that their

Plaintiff also argues that Defendants' Rule 12(c) motion violates this court's "ruling" on October 6, 2008. Plaintiff contends that, at the hearing on October 6, 2008, the court ruled that any Rule 12 motions filed in response to Plaintiff's Second Amended Complaint should be subsumed within the Defendants' forthcoming motion for summary judgment. The docket entry generated that day, the substance of which came from the court's statements on the record, dictates that "Dispositive Motions" must be filed by November 11, 2008. A Rule 12(c) motion is a dispositive motion and Defendants filed it concurrently with their motion for summary judgment. Although Defendants could have done it differently, the filing of a separate Rule 12(c) motion technically complies with the docket entry. Perhaps because Plaintiff believed Defendants' Rule 12(c) motion was improper (as a separate motion), Plaintiff filed his opposition to this motion well past the opposition deadline. Despite being untimely, Plaintiff's opposition has been considered. 17

7

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motion

for

judgment

on

the

pleadings

is

directed

only

at

Plaintiff's non-FEHA (and non-federal) claims.

Defendants did not

specify which particular statutory claims they concede are exempt "FEHA" claims. A. FEHA Claims Although the Government Claims Act provides no statutory exemption for FEHA claims, applicable case law provides that "compliance with the Tort Claims Act is not required for state law FEHA claims." Mangold v. Cal. Pub. Utilities Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995); see also Rojo v. Kliger, 52 Cal. 3d 65, 80 (1990) (noting that "actions under [the] FEHA are exempt from general Tort Claims Act requirements" (citing Snipes v. City of Bakersfield, 145 Cal. App. 3d 861, 868-69 (1983))); Lozada v. City of San Francisco, 145 Cal. App. 4th 1139, 1166 n.13 (2006)

(recognizing that FEHA claims are exempt from the Government Claims Act); Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 764 (2002) (same). FEHA claims are exempt because the FEHA's statutory scheme "includes a functionally equivalent claim process." Gatto, 98 Cal. App. 4th at 764. "Under the FEHA, the employee must exhaust the

administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing . . . and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA." (1996). Only two of Plaintiff's state law claims are non-FEHA claims, i.e., his first claim for retaliation under § 1278.5 of the Health & Safety Code, and his second claim for retaliation under § 1102.5 18 Romano v. Rockwell Int'l, Inc., 14 Cal. 4th 479, 492

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of the Labor Code.

The remaining claims are all FEHA claims that

come with their own "functionally equivalent claim process," Gatto, 98 Cal. App. 4th at 764. Plaintiff's third claim is for retaliation in violation of the CFRA, and Plaintiff's fifth claim is for a denial of his CFRA rights. The CFRA is a part of the FEHA; accordingly, the

exhaustion of administrative remedies under the FEHA is required for CFRA claims, including Plaintiff's claims here. See Mora v.

Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1201 (S.D. Cal. 1998); Flores v. Cal. Pac. Med. Ctr., No. C04-1846 MMC, 2005 WL 2043038, at *2 n.1 (N.D. Cal. Aug. 24, 2005). Plaintiff's sixth claim for

disability discrimination, seventh claim for failure to provide reasonable accommodation, and eighth claim for failure to engage in the interactive process are all FEHA claims and the exhaustion of administrative remedies under the FEHA is required for such claims. Rodriguez v. Airborne Express, 265 F.3d 890, 896-98 (9th Cir. 2001) (disability discrimination); Ramirez v. Silgan Containers, No. CIV F 07-0091 AWI DLB, 2007 WL 1241829, at *4-5 (E.D. Cal. Apr. 26, 2007) (reasonable accommodation/interactive process). Finally, the eleventh claim for retaliation for opposing employment practices forbidden under the FEHA requires exhaustion of administrative remedies under the FEHA. See Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th 1607, 1612-13, 1617 (1995). The third,

fifth, sixth, seventh, eighth, and eleventh claims are all FEHA claims governed by their own "functionally equivalent claim

process," Gatto, 98 Cal. App. 4th at 764, and are exempt from the Government Claims Act requirements. whistleblower claims. 19 This leaves the two state law

1 2 3 4 5 6 7 8 9 10 11 12 13

B. Whistleblower Claims Plaintiff's government Claim did not specifically raise

whistleblower claims under the Health & Safety Code or the Labor Code ­ he did not even mention these laws. At oral argument on the

motion, the parties debated the significance of this omission. Defendants contended that this omission is fatal whereas Plaintiff argued that all that matters is whether there is factual

equivalence (or a lack thereof) between the Claim and the Second Amended Complaint to put the public employer on notice. Defendants focused on the test articulated by numerous California courts: If a plaintiff relies on more than one theory of recovery against the [public entity], each cause of action must have been reflected in a timely claim. Nelson, 139 Cal. App. 3d at 79; Dixon, 127 Cal. App. 4th at 40;

14 Fall River Joint Unified Sch. Dist., 206 Cal. App. 3d at 434; see 15 also Stockett, 34 Cal. 4th at 447. 16 Stockett involved a claim to a public employer by a former 17 employee who asserted he was wrongfully terminated in violation of 18 public policy for supporting a female employee's sexual harassment 19 complaints. 34 Cal. 4th at 444. 20 plaintiff brought an action against his former public employer and 21 later moved to amend the complaint to assert that he was wrongfully 22 terminated in violation of public policy not only because he 23 opposed sexual harassment in the workplace (as specified in his 24 claim), but also for exercising his First Amendment right of free 25 speech by objecting to his employer's practice of not purchasing 26 insurance on the open market, and because he objected to a conflict 27 of interest. Id. 28 The court stated that the Government Claims Act "requires each 20 After his claim was denied, the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

cause of action to be presented by a claim complying with section 910." Id. at 447 (emphasis added). Stockett's claim did not Stockett explained: "[w]hile assert his termination

specifically

violated the public policies favoring free speech and opposition to public employee conflicts of interest, these theories do not represent additional causes of action and hence need not be

separately presented under section 945.4." Id. (emphasis added.) The court continued in a footnote: "JPIA [the defendant]

acknowledged at trial, and does not argue otherwise in its briefs, that under the primary right analysis used in California law, Stockett's claim of dismissal in violation of public policy

constitutes only a single cause of action even though his dismissal allegedly violated several public policies." Id. at 447 n.3

(internal citation omitted). Under California law, the violation of a "primary right" gives rise to only one cause of action, but potentially several different theories of recovery. The primary right theory is a theory of code pleading that has long been followed in California. It provides that a `cause of action' is comprised of a `primary right' of the plaintiff, a corresponding `primary duty' of the defendant, and a wrongful act by the defendant constituting a breach of that duty. The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. A pleading that states the violation of one primary right in two causes of action contravenes the rule against splitting a cause of action. As far as its content is concerned, the primary right is simply the plaintiff's right to be free from the particular injury suffered. It must therefore be distinguished from the legal theory on which liability for that injury is premised: Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.

21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

.... [T]he primary right theory . . . does not concern itself with theories of liability . . . but with the plaintiff's underlying right to be free from the injury itself. Crowley v. Katleman, 8 Cal. 4th 666, 681-83 (1994) (internal citations, emphasis and internal quotation marks omitted). Alleging "additional motivations and reasons for [a] single action of wrongful termination" adds legal theories to a complaint, not causes of action. Stockett, 34 Cal. 4th at 448; see also Takahashi v. Bd. of Educ., 202 Cal. App. 3d 1464, 1476 (1988) ("[P]laintiff specifically dismissal alleges that each act complained of caused the

(wrongful

discharge,

conspiracy,

unconstitutional

discharge, discharge in violation of state civil rights) or was a consequence of the termination (emotional distress, damages), part and parcel of the violation of the single primary right, the single harm suffered."). The primary right asserted in Stockett was to be free from wrongful termination of employment in violation of public policy. Not only must "each cause of action" ­ as that term is used in California jurisprudence ­ be reflected in a timely claim, "the factual circumstances set forth in the written claim must

correspond with the facts alleged in the complaint." Cal. App. 3d at 79.

Nelson, 139

"[T]he complaint is vulnerable to a demurrer

if it alleges a factual basis for recovery which is not fairly reflected in the written claim." Stockett, 34 Cal. 4th at 447 (internal quotation marks omitted). A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an entirely different set of facts. Only where there has been a complete shift in allegations . . . have courts generally found the 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

complaint barred. Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint. Stockett, 34 Cal. 4th at 447. Stockett provided a couple of

examples, from California cases, where the factual divergence between the claim and complaint was too great. See Lopez v. S. Cal. Med. Group, 115 Cal. App. 3d 673, 676-77 (1981) (concluding that a claim alleging that an automobile accident was caused by the state's negligence in issuing a driver's license to the defendant despite his epileptic condition was insufficient to permit an amended complaint that based liability instead on the state's neglect in failing to suspend or revoke the license despite the defendant's non-compliance with accident reporting and financial responsibility laws); Donohue v. State, 178 Cal. App. 3d 795, 80304 (1986) (concluding that a claim alleging that an automobile accident was caused by the Department of Motor Vehicles' negligence in allowing an uninsured motorist to take a driving test did not give adequate notice of the claim in the complaint that the accident was caused by the department's negligence in failing to properly supervise and instruct the driver during the driving exam). Basing liability on a different wrongful act than was See Stockett, 34 Cal. 4th at 448

reflected in the claim is fatal.

(discussing and distinguishing Fall River, stating that "Stockett's complaint, in contrast, alleged liability on the same wrongful act."). Plaintiff's whistleblower Claim contains ­ 23 two his claims claim pertinent for to his

allegations

"Wrongful

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Demotion/Termination in Violation of Cal. Bus. & Prof. C. § 2056 & Conspiracy Relating Thereto" and his claim for "Per Se

Libel/Ratification by KMC." Taking the later claim first (Per Se Libel/Ratification by KMC), Plaintiff's Claim asserts that in a letter dated October 17, 2005, from Drs. Kercher, Ragland, Abraham, and Harris, Plaintiff was informed that three letters of dissatisfaction would be entered in his medical staff file. Plaintiff asserts that in so

reprimanding him, these doctors "failed to comply with KMC bylaws." When Plaintiff later viewed the contents of the three letters of dissatisfaction, "one" of them, from Dr. William Roy, was

"defamatory" and "maliciously defamed Complainant's professional competence." In his Second Amended Complaint, Plaintiff does not Rather,

assert a claim for libel per se (or breach of KMC bylaws).

Plaintiff claims that the reprimand letter dated October 17, 2005, was unlawful retaliation for engaging in whistleblowing activity under Health & Safety Code § 1278.5. In his Second Amended Complaint, Plaintiff asserts that on October 12, 2005, he gave a presentation at a monthly KMC oncology conference "highlighting concerns regarding a patient that might need a hysterectomy, and the need for Internal Pathology Review." ( D o c. 241 at 14) (Emphasis solicited added.) letters Allegedly, of "[a]fter the from

conference,

Harris

disapprobation

conference participants, including Roy." (Id. at 6.)

Then, on or

about October 17, 2005, Plaintiff was ordered to attend a meeting with Kercher, that Harris "they and had Ragland received 24 during which of they informed

Plaintiff

letters

disapprobation

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(`Disapprobation Letters') from three conference participants ­ one of which was the Roy [l]etter ­ and would be issuing a letter of reprimand later that day which would be entered into Plaintiff's medical staff file." (Id. at 15-16.) (Emphasis added.) Later that

day, Harris, Kercher, Ragland and Abraham "issued a formal letter of reprimand addressed to Plaintiff which stated `Your repeated misconduct at the Tumor Conference on October 12, 2005 was noted by numerous attendants, three of which have written letters of their dissatisfaction, which will be entered into your medical staff file.'" (Id. at 16.) (Emphasis added.) In a section of the Second Amended Complaint entitled

"Whistleblowing" Plaintiff asserts that he engaged in various whistleblowing activities including reporting "the need for In a

Internal Pathology Review." (Id. at 10.) (Emphasis added.)

section of the Second Amended Complaint entitled "Adverse Action" Plaintiff against lists "adverse employment actions" (Doc. § allegedly at 27.) taken In

him

including retaliation

"reprimands." claim

241

Plaintiff's

under

1278.5,

Plaintiff

incorporates all previous allegations (including the ones just discussed) and Plaintiff asserts that he was retaliated against for engaging in "whistleblowing activity." (Doc. 241 at 31.) To the

extent his claim under § 1278.5 attempts to premise liability on the "reprimand" letter dated October 17, 2005, and the associated letters of dissatisfaction, Plaintiff's claim is new and not previously described in his prior government Claim. Assuming arguendo that Plaintiff's "libel per se/Ratification by KMC" claim, as stated in Plaintiff's Claim, and his retaliation 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

claim under § 1278.5, as stated in his Second Amended Complaint, are based on the violation of the same primary right, the factual variance between these claims is too great. Plaintiff's claim that in reprimanding him the doctors "failed to comply with the KMC bylaws" and one of the letters of dissatisfaction was "defamatory" in nature is entirely different from the allegation that the reprimand letter dated October 17, 2005, was unlawful retaliation for Plaintiff's engagement in protected whistleblowing under § 1278.5 of the Health & Safety Code. The breaching of KMC's bylaws,

or the defaming of Plaintiff's character, is different wrongful conduct than unlawfully retaliating against Plaintiff for engaging in whistleblowing. Although a complaint can add further detail to

a claim, Plaintiff's Second Amended complaint asserts a basis for recovery that was not fairly described in his Claim. To the extent

Plaintiff's claim under § 1278.5 of the Health & Safety Code attempts to premise liability on the ground that the reprimand was unlawful retaliation for Plaintiff's engaging in whistleblowing, it is barred. As to the "Wrongful Demotion/Termination in Violation of Cal. Bus. & Prof. C. § 2056 & Conspiracy Relating Thereto" claim, Plaintiff alleges that he suffered a particular injury: a

"demotion," i.e., being removed from his chairmanship position.8 Even though this demotion has provided the basis for multiple legal theories because it allegedly violated several laws including the Health & Safety and Labor Codes, these legal theories, based on the

8

Plaintiff also referred to it as a "termination." 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

same injury, comprise but one cause of action for the violation of one primary right, i.e., the right to be free from unlawful demotion. As in Stockett, Plaintiff did not need to separately

present these additional statutory theories. In terms of factual variance, Plaintiff asserts in his Claim that he was demoted by Bryan (i.e., he lost his chairmanship) because Plaintiff raised "concerns relating to patient health care" in e-mails and communications to Bryan and other leaders on the medical staff. Plaintiff listed several of these concerns in his

Claim, including "chronically incomplete or inaccurate KMC blood component product chart copies, in violation of state regulations and accreditation standards of JCAHO, CAP, and AABB." (Doc. 241 at Ex. 2.) The Second Amended Complaint repeats these same facts to allege, in an indirect way, that Plaintiff raised these concerns to various parties, including Bryan, key members of KMC's medical staff, his employer, and Barmann, and was demoted for doing so in violation of § 1278.5 of the Health & Safety Code and § 1102.5 of the Labor Code. To this extent, his Second Amended Complaint

asserts a factual basis for recovery that is fairly reflected in his government Claim -- both are based on Plaintiff's alleged wrongful demotion for his engagement in whistleblowing activity. Plaintiff's Second Amended Complaint, however, goes much further.

27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff' Second Amended Complaint contains allegations that post-date his Claim.9 These new allegations include the following: * On or about September 18, 2006, Barnes sent Plaintiff's attorney a proposed amendment (`Amendment') to the Second Contract which included a base salary reduction of over 35% (`Paycut') . . . . * On or about September 22, 2006, Plaintiff executed the Amendment memorializing the Paycut and submitted it to Barnes. * On or about October 3, 2006, the Board of Supervisors for Defendant County voted to approve the Amendment. * On October 4, 2006, Plaintiff's 90-day personal necessity leave ended and Plaintiff returned to work at KMC as a staff pathologist. Plaintiff's former subordinate, Defendant Dutt, was chosen to replace Plaintiff as Acting Chair of Pathology. * Between on or about October 4, 2006 until on or about December 7, 2006, Defendant Dutt yelled at, harassed, insulted, ridiculed Plaintiff, both verbally and in a series of emails. * On or about November 28, 2006, after almost six years of trying to reform KMC from within, Plaintiff finally blew the whistle on KMC, formally reporting his Concerns to the Joint Commission on Accreditation of Hospital Organizations, the College of American Pathologists, and the California Department of Health Services (`Authorities'). * On or about December 4, 2006, Plaintiff submitted a written complaint to KMC leadership about numerous additional concerns regarding the quality of patient care and the deterioration of the pathology department. * On or about December 4, 2006, Plaintiff sent a letter addressed to Culberson and carbon-copied to key members of KMC's medical staff and administration, protesting Defendant Dutt's behavior and raising additional concerns about patient care quality, safety and legal noncompliance.

These allegations also post-date the letter the County sent to Plaintiff "dated September 15, 2006 . . . giving notice that Plaintiff's [Claim] was deemed rejected by operation of law." (Doc. 241 at 29.) 28

9

1 2 3 4 5 6 7 8 9

* On December 7, Plaintiff was placed on involuntary administrative leave allegedly `pending resolution of a personnel matter'. * On December 7, 2006, Defendants County and Harris placed Plaintiff on administrative leave, denying him the opportunity to earn professional fees of roughly $100,000 per year as provided for in Plaintiff's employment contract . . . . * On December 13, 2006, Plaintiff sent a letter to David Culberson (`Culberson'),interim Chief Executive Officer of KMC, and carbon-copied to members of KMC's medical staff leadership, informing him that he had reported his Concerns to the Authorities. (Doc. 241 at 7-8, 22-23, 27.) Plaintiff's whistleblower claims

10 allege that he finally blew the whistle to "Authorities" on or 11 about November 28, 2006, and, as a result, he was retaliated 12 against in violation of § 1278.5 of the Health & Safety Code and § 13 1102.5 of the Labor Code. 14 submitted his original Claim, the County allegedly reduced his 15 compensation via an amendment to his employment contract and forced 16 him to take administrative leave. 17 whistleblower claims under § 1278.5 of the Health & Safety Code and 18 § 1102.5 of the Labor Code on wrongful retaliatory acts and 19 whistleblowing that post-date his Claim creates a fatal variance 20 between his Second Amended Complaint and his Claim. 21 At oral argument on the motion, Plaintiff pointed out that he 22 filed a supplemental claim with the County to include post-Claim 23 events. The Second Amended Complaint does allege that, "[o]n April 24 23, 2007, Plaintiff filed a supplemented Tort Claims Act complaint 25 with the County of Kern, supplemented to reflect events occurring 26 after the filing of the initial Tort Claims Act complaint on July 27 28 29 Plaintiff's attempt to base (Id. at 30-31.) Months after he

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3, 2006." (Doc. 241 at 29.)10

In response, Defendants argued that

although Plaintiff filed a supplemental claim on April 23, 2007, Plaintiff filed his initial federal Complaint in this action months earlier on January 6, 2007, and the initial Complaint contained his whistleblower claims under Health & Safety Code § 1278.5 and Labor Code § 1102.5. A review of Plaintiff's initial Complaint11 reveals that

Defendants are correct; Plaintiff asserted whistleblower claims under Health & Safety Code § 1278.5 and Labor Code § 1102.5. (Doc. 2.) More important, these claims are based on alleged retaliatory

acts and whistleblowing that post-date Plaintiff's Claim and predate Plaintiff's supplemental claim submitted to the County. The

allegations that post-date Plaintiff's Claim and pre-date his supplemental claim include: * On or about September 18, 2006, Barnes sent Plaintiff a proposed amendment (`Amendment') to the Second Contract This alleged "supplemented Tort Claims Act complaint" is not attached to the Second Amended Complaint. In a motion for judgment on the pleadings, a district court may consider matters of judicial notice without converting the motion into a motion for summary judgment. Ritchie, 342 F.3d at 908. A district court may take judicial notice of "matters of public record." Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (internal quotation marks omitted); see also Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988) ("[T]he court may properly look beyond the complaint only to items in the record of the case or to matters of general public record."). Plaintiff's prior pleadings in this case are matters of public record, which are judicially noticeable. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Pavone v. Citicorp Credit Servs., Inc., 60 F. Supp. 2d 1040, 1045 (S.D. Cal. 1997). Plaintiff's prior pleadings may be considered. Fed. R. Evid. 201(c). 30
11 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

which included a base salary reduction of over 35% (`Paycut') . . . . *On or about September 22, 2006, Plaintiff executed the Amendment memorializing the Paycut and submitted it to Barnes. * On or about October 3, 2006, the Board of Supervisors for Defendant County voted to approve the Amendment. * On October 4, 2006, Plaintiff's 90-day personal necessity leave ended and Plaintiff returned to work at KMC as a staff pathologist. Plaintiff's former subordinate, Philip Dutt, MD (`Dutt'), was chosen to replace Plaintiff as Acting Chair of Pathology. * Between on or about October 4, 2006 until on or about December 7, 2006, Dutt yelled at, harassed, insulted and ridiculed Plaintiff, both verbally and in a series of emails. * Finally, on or about November 28, 2006, after almost six years of trying to reform KMC from within in vain, Plaintiff formally reported his Concerns to the Joint Commission on Accreditation of Hospital Organizations, the College of American Pathologists, and the California Department of Health Services (`Authorities'). * Plaintiff submitted a written complaint to KMC leadership on December 4, 2006 about numerous additional concerns regarding the quality of patient care and the deterioration of the pathology department. * On or about December 4, 2006, Plaintiff sent a letter addressed to Culberson and carbon-copied to key members of KMC's medical staff and administration, protesting Dutt's behavior and raising additional concerns about patient care quality, safety and legal noncompliance. * On December 7, Plaintiff was placed on involuntary administrative leave allegedly `pending resolution of a personnel matter'. * On or about December 7, 2006, Culberson sent a letter addressed to Plaintiff informing him that he was being placed on involuntary paid administrative leave `pending resolution of a personnel matter'. * On December 13, 2006, Plaintiff sent a letter addressed to David Culberson (`Culberson'), interim Chief Executive Officer of KMC, and carbon-copied to members of KMC's medical staff leadership, informing him that `KMC leadership has left me no choice but to report the above 31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

issues (Concerns) to the appropriate accrediting agencies (Authorities)'. (Doc. 2 at 8, 11-12, 25-26.)

state

and

These post-Claim allegations in

Plaintiff's initial Complaint are identical, or nearly identical, to the post-Claim allegations in Plaintiff's Second Amended

Complaint set forth above.

After Plaintiff's initial Complaint,

Plaintiff filed a First Amended Complaint on January 8, 2007, and it contained all of these same allegations. 26-27.) Plaintiff's attempt in his Second Amended Complaint (Doc. 241 at 31-32) to assert claims under the Health & Safety Code and the Labor Code based on post-Claim retaliation is problematic. This (Doc. 15 at 9, 12-13,

post-Claim retaliation was advanced by Plaintiff as a basis for liability in his initial Complaint which he filed before he had submitted any supplemental claim to the County. By resorting to

litigation first, Plaintiff violated the letter, spirit and purpose of the Government Claims Act. The Government Claims Act "requires a plaintiff to present a claim before bringing suit against a public entity." Dixon, 127 Cal. App. 4th at 40 (emphasis added); see also Shirk, 42 Cal. 4th at 208 ("Before suing a public entity, the plaintiff must present a timely written claim . . . .") (emphasis added). "The

legislature's intent to require the presentation of claims before suit is filed could not be clearer." City of Stockton, 42 Cal. 4th at 746. "Submission of a claim to a public entity pursuant to [the Act] is a condition precedent to a [civil] action." Javor v. Taggart, 98 Cal. App. 4th 795, 32 804 (2002) (emphasis added)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(alteration in original) (internal quotation marks omitted).

The

purpose of the Government Claims Act 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." Stockett, 34 Cal. 4th at 446 (emphasis added) (internal quotation marks omitted). The Government Claims

Act gives "the governmental entity an opportunity to settle just claims before suit is brought" and "enable[s] the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future." Lozada, 145 Cal. App. 4th at 1151 (emphasis added) (internal quotation marks omitted). Before he submitted a supplemented claim to the County, Plaintiff filed a lawsuit and asserted whistleblower claims under the Health & Safety and Labor Codes based on retaliation that occurred after his original Claim. Plaintiff did not submit these

new claims to the County before he sued on them and did not give the County the opportunity to investigate and settle these claims without the expense of litigation. Second Amended Complaint. These claims are raised in his See Janis v. Cal.

They are barred.

State Lottery Comm'n, 68 Cal. App. 4th 824, 828, 831 (1998) (concluding that an additional claim in Plaintiff's first amended complaint was barred by the Government Claims Act notwithstanding that, five days after filing the first amended complaint, the plaintiff presented a corresponding additional claim to the public entity defendant, and stating, "[plaintiff] did not file the administrative claim asserting the [additional claim] until after [the plaintiff] filed its civil complaint, and accordingly, [the 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

plaintiff] cannot maintain the civil action.").12 Even though Plaintiff's Second Amended Complaint was filed well after Plaintiff actually submitted his supplemental claim to the County, the presentation of a timely claim is (and was) a substantive "element" of Plaintiff's new whistleblower claims. Shirk, 42 Cal. 4th at 209. At the time Plaintiff filed his initial

Complaint, one of the necessary elements of his new whistleblower claims was missing ­ he had not presented any claim including them. This substantive defect in Plaintiff's initial Complaint was not remedied Complaint. by later pleadings, including his Second Amended

See Radar v. Rogers, 49 Cal. 2d 243, 247 (1957) ("[A]

supplemental complaint cannot aid an original complaint which was filed before a cause of action had arisen."); Morse v. Steele, 132 Cal. 456, 458 (1901) ("This action was prematurely brought. For that reason the original complaint must fall. In such a case a supplemental complaint has no place as a pleading."); Walton v. Kern County, 39 Cal. App. 2d 32, 34 (1940) ("The general rule is that where an action is prematurely brought, and the original complaint must fall, a supplemental complaint has no place as a pleading" and "[o]rdinarily, a plaintiff's cause of action must have arisen before the filing of the complaint and he may not recover in a cause of action arising after the suit is filed");
12

There are cases in which courts have permitted the complaint to go forward where it was prematurely filed within a relatively short time after the plaintiff had submitted a claim to the public defendant, or where after the filing of the complaint, the plaintiff applied for and obtained relief from the claims statute requirements. See Bodde, 32 Cal. 4th at 1243-44. No such scenario exists here. 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Eileen C. Moore & Michael Paul Thomas, California Civil Practice Procedure, § 7.33 (2008) ("A plaintiff's cause of action must have arisen before the filing of the original complaint and he or she may not, by way of a supplemental complaint, recover when facts occurring after the suit is filed have given rise to the cause of action."); cf. Sparrow v. U.S. Postal Serv., 825 F. Supp. 252, 255 (E.D. Cal. 1993) (stating, with respect to the Federal Tort Claims Act, that "[i]f the claimant is permitted to bring suit prematurely and simply amend his complaint after denial of the administrative claim, the exhaustion requirement would be rendered meaningless").13 Although Plaintiff does not invoke Government Code § 910.6, it is unavailing in this case. That section provides:

A claim may be amended at any time before the expiration of the period designated in Section 911.2 or before final action thereon is taken by the board, whichever is later, if the claim as amended relates to the same transaction or occurrence which gave rise to the original claim. The amendment shall be considered a part of the original claim for all purposes. § 910.6 (emphasis added). Assuming, arguendo, that "all purposes"

Because presentation of a claim under the Government Claims Act is a substantive element of the plaintiff's later-filed claim, a presentation failure is not an affirmative defense. See Wood v. Riverside Gen. Hosp., 25 Cal. App. 4th 1113, 1119 (1994) ("Since compliance with the claims statute is an element of plaintiff's cause of action, failure to comply is not an affirmative defense."); see also Illerbrun v. Conrad, 216 Cal. App. 2d 521, 524-25 (1963) (concluding that where a claims presentation requirement in a City charter and ordinance was a condition precedent to litigation and an "integral part of the plaintiff's cause of action" the failure to comply with it was not an affirmative defense or a plea in abatement). Although Defendants did not specifically allege Plaintiff's failure to comply with the Government Claims Act in their Answer, this omission is immaterial. 35

13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

means that if a lawsuit was filed after the submission of an original claim but before the submission of a timely amended claim, the amended claim would be "considered part of the original claim" and, by operation of law, would be regarded as having been

presented before the lawsuit was filed, this reading of § 910.6 does not help Plaintiff here. Section 910.6 comes into play only

when the claim "as amended relates to the same transaction or occurrence which gave rise to the original claim." (Emphasis added.) The retaliatory acts that occurred months after

Plaintiff's Claim did not "give rise to [his] original claim." Subsequent retaliation under the Health & Safety Code and the Labor Code is not the same "transaction or occurrence" that gave rise to the original claim. claim on Even April assuming, 23, 2007, and arguendo, contained Plaintiff's allegations that

supplemental regarding

the

purported

retaliation

whistleblowing

occurred months after his original Claim (and further assuming that the supplemental claim was timely), the supplemental claim is not within § 910.6. The Second Amended Complaint also contains allegations

regarding purported retaliation that took place after Plaintiff's Claim, and after Plaintiff's supplemental claim. In his Second

Amended Complaint, Plaintiff asserts that "[o]n May 1, 2007, Defendant County sent an email to Plaintiff notifying him of its decision not to renew Plaintiff's employment contract, which was not due to expire until October 4, 2007, and to `let the contract run out.'" (Doc. 241 at 8.) Plaintiff apparently alleges this was

an adverse e