Loudermilk v. County of Alameda CA1/1

Filed 10/21/13 Loudermilk v. County of Alameda CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ANNISE L. LOUDERMILK,
Plaintiff and Appellant,
A135752
v.
COUNTY OF ALAMEDA et al., (Alameda County
Super. Ct. No. RG10534240)
Defendants and Respondents.

Annise L. Loudermilk appeals from a judgment dismissing her claims against her
employer—the County of Alameda (County) and the Alameda County Probation
Department (Department) (collectively County defendants)—and one of her supervisors,
Patricia Lowe-Copeland. The claims arose from Lowe-Copeland‘s alleged harassment of
Loudermilk over a work-related dispute, and the County defendants‘ response when
Loudermilk complained about the harassment. We affirm the judgment as to the County
defendants and dismiss Loudermilk‘s appeal as to the judgment in favor of Lowe-
Copeland.
I. BACKGROUND
In her third amended complaint and in prior versions pertinent to this appeal,
Loudermilk alleged the following material facts:
Loudermilk is employed by the County as a juvenile institutional officer for the
Department. Her duties include providing security, supervision, educational programs,
and recreational activities for minors in the custody of juvenile hall. Before the events
giving rise to this action, Loudermilk received positive reviews during her employment
and her work performance had never been criticized. In the summer of 2008, Loudermilk
developed an idea for a program in which outside guests would come to juvenile hall to
speak with the minors about their experiences, and the presentations would be videotaped
for viewing by detainees. Loudermilk presented the idea to one of her supervisors, Ms.
Walters, who liked the idea and encouraged Loudermilk to develop the program.
When defendant Lowe-Copeland, who was also a supervisor of Loudermilk, found
out Loudermilk was working with Walters on the project, she became enraged, and
angrily challenged Loudermilk about why she chose to work with Walters rather than
Lowe-Copeland. Lowe-Copeland called Loudermilk to her office, and interrogated her in
a threatening manner, shouting angrily, ―Somebody told you not to ask me.‖ Loudermilk
was intimidated and felt afraid and uncomfortable until she was finally allowed to leave
Lowe-Copeland‘s office.
After this conversation, Lowe-Copeland‘s behavior toward Loudermilk became
even more aggressive, assaultive, and threatening. She followed Loudermilk around,
criticized her at every opportunity, and encouraged the detained minors to complain
about Loudermilk. She told the juvenile detainees untruths about Loudermilk to turn
them against her. She made promises to them and then changed her mind, causing them
to become upset creating a troublesome and dangerous situation for Loudermilk. Many
of the girls Loudermilk supervised had a history of violent behavior and the turmoil
created by Lowe-Copeland caused Loudermilk to become concerned for her safety.
On or about November 8, 2008, Loudermilk met with her union shop steward and
complained about the harassment and hostile work environment she was enduring from
Lowe-Copeland. The shop steward told Loudermilk this was a management problem and
had Loudermilk accompany her to a meeting with George Perkins, acting superintendent
of the juvenile hall to inform him of Loudermilk‘s complaint concerning the harassment,
hostile working environment, and retaliation she was enduring from Lowe-Copeland.
Perkins said he would investigate and take care of the situation but never did so.
Loudermilk believed Lowe-Copeland must have learned of her complaint to
Perkins because thereafter her threatening behavior increased and her anger toward

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Loudermilk became more apparent. On March 3, 2009, Lowe-Copeland approached
Loudermilk with an angry expression and threatened Loudermilk by stating, ―[N]ow go
and tell, you tell everything else.‖ Lowe-Copeland turned to Loudermilk‘s coworker and
said, ―Yeah, that‘s how I get down.‖ During another confrontation, Lowe-Copeland said
to Loudermilk in a threatening manner, ―I am from West Oakland.‖ West Oakland is an
area notorious for violent crime and frequent murders. In another instance, Lowe-
Copeland told Loudermilk, ―You‘ll regret it if you mess with me and if anyone does
something to me they will regret it.‖ These comments were made to Loudermilk in a
threatening and intimidating manner and were clearly threats that frightened Loudermilk
and made her fearful for her safety.
Lowe-Copeland also used the minors in Loudermilk‘s unit as a form of harassment
and retaliation, making promises they could participate in certain programs and then
changing her mind and making it appear it was Loudermilk‘s decision they could not
participate. The minors had serious behavior issues including violence, drug use, and
gang membership. During May 2009, Loudermilk felt so anxious, threatened, and
victimized by Lowe-Copeland‘s harassment that she was constantly concerned for her
personal safety, became physically ill, and missed work several times during the month.
On June 4, 2009, Loudermilk complained again to Perkins in writing, naming witnesses
to Lowe-Copeland‘s assaultive, harassing, and threatening conduct toward Loudermilk,
but Lowe-Copeland continued to retaliate against and harass Loudermilk and the
Department took no corrective action.
Loudermilk met again with Perkins about her complaints and Perkins asked her if
she needed counseling. He referred her to a County counseling program for employees.
Loudermilk began seeing a psychiatrist who diagnosed her with depression, anxiety, and
emotional distress. Perkins never interviewed the witnesses Loudermilk identified to
him.
On July 6, 2009, Loudermilk was placed on work-related disability leave by her
primary care provider due to Lowe-Copeland‘s continuing threatening conduct and the
failure of the Department to protect Loudermilk. A workers‘ compensation first report of

3
injury was filed by Loudermilk and her condition was described as work-related. The
workers‘ compensation examiner approved Loudermilk‘s workers‘ compensation claim,
stating her condition was work-related. In November 2009, after communication with
management at the Department, the examiner reversed its coverage finding. As a result,
Loudermilk was forced to use 80 hours of her own time and 40 hours of her sick leave for
the period she was out on disability. Loudermilk alleges the adverse workers‘
compensation decision was made at the Department‘s request as part of the harassment,
discrimination, and hostile work environment maintained against Loudermilk.
Loudermilk contacted Perkins when she was ready to return to work and requested
the same 3:00 p.m. to 11:00 p.m. shift she had worked before going out on disability so
long as Lowe-Copeland would not be her supervisor and she would have no contact with
Lowe-Copeland. Perkins refused to move Lowe-Copeland to a different shift so that
Loudermilk could return to her shift. He offered to put Loudermilk on the 7:00 a.m. to
3:00 p.m. shift, knowing she would receive approximately $2 more per hour on the later
shift and that she was trying to attend school during the daytime. He could have moved
Lowe-Copeland to a different shift because she is part of management and was not
subject to the same work rules and benefits as union employees like Loudermilk.
After Loudermilk returned to work in November 2009, the internal affairs bureau
(IAB) informed her the results of its investigation of Lowe-Copeland were negative. The
IAB had not interviewed the witnesses whose names she had given to Perkins who would
have confirmed Lowe-Copeland threatened Loudermilk in the workplace.
On January 8, 2010, within six months of the Department‘s transfer of Loudermilk
to the less desirable shift, refusal to adequately investigate her complaint, and active
advocacy against acceptance of her workers‘ compensation claim, Loudermilk filed a
government tort claim with the County naming the Department as the party causing the
loss or damage and stating: ―I was working in a hostile work environment and being
harassed by an IS II Supervisor.‖ The claim was rejected on March 1, 2010, and this
action was timely brought on August 31, 2010.

4
 Trial Court Proceedings
The trial court sustained demurrers to Loudermilk‘s first and second amended
complaints, without leave to amend as to most causes of action. The two causes of action
remaining in Loudermilk‘s third amended complaint were retaliation in violation of
public policy and retaliation in violation of Labor Code section 6310.1 Defendants
demurred again. The trial court sustained the demurrer to the cause of action based on
public policy without leave to amend. The section 6310 cause of action was based on
Loudermilk‘s allegation she was transferred to a shift on which she earned $2 less per
hour, as retaliation for her complaints about Lowe-Copeland and her workers‘
compensation claim. Finding no facts alleged demonstrating defendant Lowe-Copeland
had any role in the shift transfer, the trial court sustained her demurrer to the section 6310
cause of action without leave to amend, and denied the County defendants‘ demurrer.
The County defendants answered and filed a motion for judgment on the pleadings,
which the trial court granted on the grounds that the factual basis for Loudermilk‘s
section 6310 retaliation claim was not fairly reflected in the tort claim filed with the
County on January 8, 2010. Loudermilk filed a notice of appeal from the ensuing

1
Part of the Occupational Health and Safety Act (Lab. Code, § 6300 et
seq.), Labor Code section 6310 bars retaliation against employees who report workplace
safety issues: ―(a) No person shall discharge or in any manner discriminate against any
employee because the employee has done any of the following: [¶] (1) Made any oral or
written complaint to the division, other governmental agencies having statutory
responsibility for or assisting the division with reference to employee safety or health, his
or her employer, or his or her representative. [¶] (2) Instituted or caused to be instituted
any proceeding under or relating to his or her rights or has testified or is about to testify
in the proceeding or because of the exercise by the employee on behalf of himself,
herself, or others of any rights afforded him or her. [¶] . . . [¶] (b) Any employee who is
. . . demoted . . . or in any other manner discriminated against in the terms and conditions
of employment by his or her employer because the employee has made a bona fide oral or
written complaint to the division, other governmental agencies having statutory
responsibility for or assisting the division with reference to employee safety or health, his
or her employer, or his or her representative, of unsafe working conditions, or work
practices, in his or her employment or place of employment . . . shall be entitled to
reinstatement and reimbursement for lost wages and work benefits caused by the acts of
the employer.‖

5
judgment of dismissal, and from the three earlier orders sustaining demurrers to her other
causes of action without leave to amend. (See Code Civ. Proc., § 472c, subdivision
(b)(1).)
Loudermilk contends the trial court erred in dismissing without leave to amend the
following causes of action, as pleaded in her second and third amended complaints:
(1) retaliation in violation of public policy (third amended complaint), (2) retaliation in
violation of Labor Code section 6310 (third amended complaint), and (3) violation of
Labor Code section 64002 (second amended complaint).
II. DISCUSSION
A. Standard of Review
An appellate court reviews a ruling sustaining a demurrer de novo, exercising
independent judgment regarding whether the complaint states a cause of action as a
matter of law without regard to whether the plaintiff will have difficulties proving the
claims made in the complaint. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th
1110, 1115.) We give the complaint a reasonable interpretation, treating the demurrer as
admitting all material facts properly pleaded, but we do not assume the truth of
contentions, deductions, or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 967.)
On appeal from a judgment on the pleadings, we apply the same standard of
review as with a general demurrer. (Baughman v. State of California (1995)
38 Cal.App.4th 182, 187.) ―[W]e accept as true the facts alleged in the complaint and
review the legal issues de novo. ‗A motion for judgment on the pleadings, like a general
demurrer, tests the allegations of the complaint or cross-complaint, supplemented by any
matter of which the trial court takes judicial notice, to determine whether plaintiff or
cross-complainant has stated a cause of action. [Citation.] Because the trial court‘s
determination is made as a matter of law, we review the ruling de novo, assuming the

2
Labor Code section 6400, subdivision (a) states: ―Every employer shall furnish
employment and a place of employment that is safe and healthful for the employees
therein.‖

6
truth of all material facts properly pled.‘ ‖ (Angelucci v. Century Supper Club (2007)
41 Cal.4th 160, 166.)
B. Retaliation in Violation of Public Policy
Loudermilk‘s cause of action for retaliation in violation of public policy alleged in
relevant part that at the time of the events alleged in the complaint: ―Section 132a of the
Labor Code[3] protected workers from retaliation, discrimination and harassment as a
result of reporting a work related injury . . . . [and] the County . . . had adopted a [written]
workplace violence prevention policy . . . which prohibited all types of violent behavior
in the workplace, including . . . threat of violence and intimidation . . . . to be followed by
all employees of Alameda County.‖ The cause of action further alleged the Department
engaged in retaliatory conduct toward Loudermilk by its ―refusal to act and its
misrepresentations to Plaintiff that it would investigate her complaint when Defendants
knew, or should have known, that it would place Plaintiff in a position where she would
be subjected to further threats of violence by [Lowe-Copeland] . . . .‖ Loudermilk sought
general damages for emotional distress, economic damages, and special damages
according to proof, as well as attorney fees.
The trial court sustained defendants‘ demurrer to this cause of action without leave
to amend because (1) the WCAB is the exclusive forum for pursuing a Labor Code
section 132a claim; (2) to the extent the cause of action is based on another unspecified
public policy, or common law, the claim failed since claims against public entities must

3
Labor Code section 132a provides in relevant part: ―It is the declared policy of
this state that there should not be discrimination against workers who are injured in the
course and scope of their employment. [¶] (1) [If] [a]ny employer . . . in any manner
discriminates against any employee because he or she has filed . . . a claim for [workers‘]
compensation with his or her employer[,] . . . the employee‘s compensation shall be
increased by one-half, but in no event more than ten thousand dollars ($10,000), together
with costs and expenses not in excess of two hundred fifty dollars ($250). Any such
employee shall also be entitled to reinstatement and reimbursement for lost wages and
work benefits caused by the acts of the employer.‖ Section 132a further specifies such
issues are to be adjudicated by the Workers‘ Compensation Appeals Board (WCAB),
which ―is vested with full power, authority, and jurisdiction‖ to decide them, subject to
judicial review.

7
be based on statute, not common law or general public policy not expressly stated in
statute; and (3) as to defendant Lowe-Copeland, Loudermilk alleged no facts
demonstrating she had any role in the retaliatory conduct alleged—Loudermilk‘s shift
transfer.
Loudermilk contends the court erred in holding her claim is subject to the
exclusive jurisdiction of the workers‘ compensation system, citing City of Moorpark v.
Superior Court (1998) 18 Cal.4th 1143 (Moorpark). The plaintiff in Moorpark attempted
to return to work after knee surgery. (Id. at pp. 1148–1149.) Her employer terminated
her employment, informing her that her residual disability prevented her from performing
essential job functions. (Ibid.) She sued, alleging causes of action for discrimination in
violation of the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA)
and wrongful termination in violation of public policy, among other claims. (Moorpark,
at p. 1149.) The defendants demurred in part on the grounds that since the plaintiff‘s
disability was work-related, a workers‘ compensation proceeding under Labor Code
section 132a—which she was also pursuing—was the plaintiff‘s exclusive remedy.
(Moorpark, at p. 1149.) The Supreme Court held section 132a is not an exclusive remedy
for workplace disability discrimination and does not preclude an employee with a work-
related disability from pursuing remedies for wrongful termination based on disability
discrimination under the FEHA or common law. (Moorpark, at p. 1158.) The Supreme
Court stated in Moorpark: ―[A Labor Code] section 132a violation, like sexual and racial
discrimination, falls outside the compensation bargain, and workers‘ compensation is not
the exclusive remedy.‖ (Id. at p. 1155.)
Although the employer in Moorpark was a public entity, the issue of whether a
cause of action for disability discrimination based on public policy, known as a Tameny
claim,4 would be subject to a public entity‘s tort immunity under Government Code

4
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny) held that if an
employer‘s discharge of an employee violated fundamental principles of public policy the
employee could maintain a tort action against the employer. (Id. at p. 170.) The
Supreme Court later clarified that a Tameny cause of action must be ―carefully tethered to

8
section 8155 was not raised or decided in that case. (See Miklosy v. Regents of University
of California (2008) 44 Cal.4th 876, 900, fn. 7 (Miklosy).) Miklosy held that Government
Code section 815 bars Tameny actions against public entities.
Loudermilk submits her public policy retaliation claim—which she characterizes
as a claim for retaliation in violation of public policy ―based . . . on the public policy
embodied in Labor Code §132a‖—is not precluded by the workers‘ compensation law.
The problem with such a claim is that Government Code section 815 bars it to the extent
it is not otherwise precluded by the workers‘ compensation law. Section 815 would have
permitted Loudermilk to seek Labor Code section 132a remedies against the County
defendants in a workers’ compensation proceeding because such a claim is authorized by
statute, namely, Labor Code section 132a. But Government Code section 815 does not
permit her to fashion a Tameny, public policy tort claim out of her grievances and pursue
such a claim in a court proceeding. Section 815, as construed by our Supreme Court in
Miklosy, bars any such claim.
Loudermilk‘s public policy-based retaliation claim fails for a second reason. Even
assuming for the sake of analysis that Government Code section 815 did not bar her
Tameny claim, Labor Code section 132a does not provide the necessary statutory basis
for such a claim, as the Court of Appeal specifically held in Dutra v. Mercy Medical
Center Mt. Shasta (2012) 209 Cal.App.4th 750 (Dutra). Dutra described the test
required by Tameny and subsequent cases: ―[F]or a [public] policy to support a common
law cause of action, ‗[t]he policy ―must be: (1) delineated in either constitutional or
statutory provisions; (2) ‗public‘ in the sense that it ‗inures to the benefit of the public‘

fundamental policies that are delineated in constitutional or statutory provisions.‖ (Gantt
v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095.)
5
Government Code section 815 immunizes public entities from all forms of
common law tort liability except as required by the state or federal Constitution or
declared by statute: ―Except as otherwise provided by statute: [¶] (a) A public entity is
not liable for an injury, whether such injury arises out of an act or omission of the public
entity or a public employee or any other person. . . .‖

9
rather than serving merely the interests of the individual; (3) well established at the time
of the discharge; and (4) substantial and fundamental.‖ [Citations.] ― ‗[P]ublic policy‘ as
a concept is notoriously resistant to precise definition, and . . . courts should venture into
this area, if at all, with great care . . . .‘ [Citation.] Therefore, when the constitutional
provision or statute articulating a public policy also includes certain substantive
limitations in scope or remedy, these limitations also circumscribe the common law
wrongful discharge cause of action. Stated another way, the common law cause of action
cannot be broader than the constitutional provision or statute on which it depends, and
therefore it ―presents no impediment to employers that operate within the bounds of
law.‖ ‘ ‖ (Dutra, at pp. 755–756, italics added by Dutra.)
With respect to Labor Code section 132a, Dutra held as follows: ―Section 132a
includes limitations on its scope and remedy that prevent it from being the basis of a
common law cause of action. The statute establishes a specific procedure and forum for
addressing a violation. It also limits the remedies that are available once a violation is
established. Allowing plaintiff to pursue a tort cause of action based on a violation of
section 132a would impermissibly give her broader remedies and procedures than those
provided by the statute. Thus, the statute cannot serve as the basis for a tort claim of
wrongful termination in violation of public policy . . . .‖ (Dutra, supra, 209 Cal.App.4th
at p. 756.)
We agree with Dutra‘s reasoning and find that it independently bars the claim in
issue. We also reject Loudermilk‘s claim the trial court should have allowed her to
amend her third amended complaint ―to allege a direct, statutory cause of action for
retaliation under Labor Code §132a.‖ Subject to judicial review, the exclusive forum for
prosecuting such a claim is the WCAB. (Lab. Code, § 5300, subd. (b);6 Moorpark,
supra, 18 Cal.4th at pp. 1155–1156 [Lab. Code, § 5300 establishes the WCAB as the

6
Labor Code section 5300, subdivision (a) provides that all proceedings ―[f]or the
recovery of compensation, or concerning any right or liability arising out of or incidental
thereto‖ shall be instituted before the WCAB.

10
exclusive forum for pursuing a § 132a claim]; Charles J. Vacanti, M.D., Inc. v. State
Comp. Ins. Fund (2001) 24 Cal.4th 800, 817.)
C. Violation of Labor Code Section 6310 (County)
Following the sustaining, in part, of defendants‘ demurrer to her third amended
complaint, Loudermilk was left with a single cause of action for violation of Labor Code
section 6310 against the County defendants. The remaining cause of action alleged
Loudermilk was subjected to retaliatory conduct for making ―bona fide complaints‖ to
the County, the Department, the WCAB, and a state agency ―regarding the harassment,
retaliation, assault and threat of assault against her‖ by Lowe-Copeland. The retaliatory
conduct alleged was her (1) transfer to a ―shift in which she would be required to have
contact with [Lowe-Copeland],‖ and (2) her assignment ―to the 7:00 a.m.–3:00 p.m. shift
which resulted in a pay cut of approximately $2.00 more an hour [and] also impacted
[Loudermilk‘s] ability to continue to attend school.‖ Loudermilk further alleged ―[t]his
retaliatory conduct adversely impacted [her] employment, depriving [her] of various
assignments and opportunities for promotion to [her] detriment both financially and in
advancing her career and caused her further emotional distress.‖ The trial court granted
the County defendants‘ motion for judgment on the pleadings, and dismissed this cause
of action on the grounds that Loudermilk had not complied with the claims presentation
requirement of Government Code section 945.47 with respect to her Labor Code
section 6310 retaliation claim. The court agreed with the County defendants‘ contention
that the claim Loudermilk filed on January 8, 2010 solely raised the issues of hostile
work environment and harassment, and included no reference to retaliation.
―[Government Code] section 945.4 requires each cause of action to be presented
by a claim complying with section 910, while section 910, subdivision (c) requires the

7
With exceptions not relevant here, Government Code section 945.4 provides that
―no suit for money or damages may be brought against a public entity . . . until a written
claim therefor has been presented to the public entity and has been acted upon by the
board, or has been deemed to have been rejected by the board . . . .‖ Such claim must be
presented not later than six months after accrual of the cause of action. (Gov. Code,
§ 911.2, subd. (a); State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)

11
claimant to state the ‗date, place and other circumstances of the occurrence or transaction
which gave rise to the claim asserted.‘ If the claim is rejected and the plaintiff ultimately
files a complaint against the public entity, the facts underlying each cause of action in the
complaint must have been fairly reflected in a timely claim. [Citation.] ‗. . . [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 v. Association of Cal. Water Agencies
Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447 (Stockett).) Thus, although the
complaint may elaborate or add further detail to a claim, it must be ―predicated on the
same fundamental actions or failures to act by the defendants.‖ (Ibid.) The purpose of
the claim is to present sufficient detail ―to reasonably enable the public entity to make an
adequate investigation of the merits of the claim and to settle it without the expense of a
lawsuit.‖ (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 456.)
In Stockett, the plaintiff‘s notice of tort claim alleged he had been wrongfully
terminated in violation of public policy for supporting another employee‘s sexual
harassment claim. (Stockett, supra, 34 Cal.4th at p. 444.) The trial court allowed
Stockett to amend his complaint to allege he had been terminated in violation of public
policy on additional grounds, including his free speech right to speak out against certain
unrelated practices of his employer. (Id. at pp. 444–445.) Following a jury verdict in
Stockett‘s favor, the employer contended the court erred by allowing Stockett to present a
different case than one based solely on retaliation for objecting to sexual harassment. (Id.
at p. 445.) The Supreme Court rejected this argument, finding the amended complaint
―alleged liability on the same wrongful act, his termination, as was stated in his notice of
claim,‖ and that it ―simply elaborated and added detail to [Stockett‘s] wrongful
termination claim by alleging additional motivations and reasons for [the employer‘s]
single action of wrongful termination.‖ (Id. at p. 448.)
Loudermilk submits her Labor Code section 6310 claim met the fair notice
standards required by Stockett. She emphasizes her claim stated she was working in a
hostile work environment as well as being harassed by a supervisor. In response to the
form question asking her for the ―Name of Public Employee(s) Causing

12
Injury/Damage/Loss,‖ she wrote ―Alameda County probation Department,‖ and did not
name Lowe-Copeland anywhere on the claim form. Loudermilk asserts the County was
therefore on notice (1) she was complaining of working in a hostile work environment
and (2) the Department was the wrongdoer. She further asserts the hostile work
environment she complained of encompassed the Department‘s refusal to investigate her
complaint or discipline Lowe-Copeland, its transfer of her to a less desirable shift with
less pay, its alleged advocacy against her workers‘ compensation claim, and its alleged
threat to place her back under Lowe-Copeland‘s supervision, and that the third amended
complaint alleged all of these actions were done in retaliation for her exercising her right
to complain about an unsafe work environment, in violation of Labor Code section 6310.
We simply do not read the retaliation cause of action as Loudermilk does. She did
not allege every act and omission by the County defendants with respect to her was in
retaliation for her complaints of unsafe working conditions. The retaliation claim was
premised on her shift assignments, not on the County defendants‘ failure to stop Lowe-
Copeland‘s harassment or its alleged interference with her workers‘ compensation claim.
Loudermilk‘s notice asserted liability stemming from different wrongful acts and causes
than her retaliation claim—leaving her exposed to hostile working conditions, not
offering her a less desirable shift where she earned less money and could not go to
school. And her retaliation claim was premised on a wholly different theory of liability
against her employer than her claim notice—acts intended to punish her for complaining,
not acts or omissions subjecting her to a hostile work environment. Thus, Loudermilk‘s
notice would have caused the County to investigate Lowe-Copeland‘s conduct toward
Loudermilk, its severity and pervasiveness, its effect on Loudermilk and her work
environment, and whether the Department acted promptly to end it if it had occurred.
(See Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 141–142.) It would not
reasonably have led the County to investigate whether the Department retaliated against
Loudermilk for making a workplace safety complaint. (Cf. Stockett, supra, 34 Cal.4th at
p. 449 [a reasonable investigation of a wrongful termination claim would not have been
limited to the motive hypothesized in the complainant‘s claim form].) We agree with the

13
trial court that Loudermilk‘s claim form did not fairly put the County on notice of a claim
under Labor Code section 6310.
D. Violation of Labor Code Section 6310 (Lowe-Copeland)
The trial court sustained Lowe-Copeland‘s demurrer to Loudermilk‘s Labor Code
section 6310 cause of action on the grounds Loudermilk failed to allege facts showing
Lowe-Copeland had any role in the retaliatory conduct alleged—the shift transfer.
Loudermilk contends the trial court erred in focusing on the shift transfer as the sole act
of retaliation. She maintains she sufficiently alleged a course of threatening, retaliatory
conduct by Lowe-Copeland in response to her workplace safety complaints.
We need not reach the merits of Loudermilk‘s claims. Code of Civil Procedure
section 581d states in relevant part as follows: ―All dismissals ordered by the court shall
be in the form of a written order signed by the court and filed in the action and those
orders when so filed shall constitute judgments and be effective for all purposes, and the
clerk shall note those judgments in the register of actions in the case.‖ (Italics added.) In
this case, the trial court signed and entered a written order stating, ―Defendant Patricia
Lowe-Copeland is DISMISSED from this action‖ on January 6, 2012. We find the
January 6 order dismissing Lowe-Copeland was an appealable order. An order sustaining
a demurrer and dismissing the case as to a particular defendant is an appealable order.
(Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1590, fn. 4.) ―[A]n order of dismissal
is to be treated as a judgment for the purposes of taking an appeal when it finally disposes
of the particular action and prevents further proceedings as effectually as would any
formal judgment.‖ (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699.) The January 6
order finally disposed of the action as to Lowe-Copeland and prevented further
proceedings against her as fully as would any judgment in her favor.
We reject Loudermilk‘s contention that such an order cannot constitute a judgment
unless and until the clerk also designates it as a judgment in the register of actions in the
case. Under the plain language of Code of Civil Procedure section 581d, the dismissal
order is effective as a judgment when it is filed, not when the clerk notes it as such in the
register of actions. Loudermilk fails to explain how written dismissal orders could

14
become effective as judgments under her interpretation of section 581d in superior courts
that opt not to maintain registers of actions. (See Gov. Code, § 69845; Ten Eyck v.
Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 544.) The statute must be construed
consistently with the rule that ―[o]nce a judgment is filed with the clerk, it is entered, and
no subsequent action is required to effect entry of judgment.‖ (County of Los Angeles v.
Ranger Ins. Co. (1994) 26 Cal.App.4th 61, 65.)
Notice of entry of the January 6 order was served on March 1, 2012.
Loudermilk‘s notice of appeal— filed more than 60 days thereafter—was therefore
untimely as to Lowe-Copeland. (Cal. Rules of Court, rule 8.104(a)(1)(B).) Loudermilk‘s
appeal as to Lowe-Copeland must be dismissed.
Having afforded the parties an opportunity to file supplemental briefs on this
issue, we dismiss Loudermilk‘s appeal from the judgment in favor of Lowe-Copeland.
Were we to consider the issue on the merits, we would read Loudermilk‘s Labor
Code section 6310 cause of action as the trial court did. It alleges retaliation based on the
decision to transfer Loudermilk to a less desirable shift after she returned from her
disability leave. No facts are pleaded showing Lowe-Copeland was involved in making
that decision. Although Loudermilk alleged Lowe-Copeland engaged in retaliation
toward her, she never specifically alleged Lowe-Copeland was retaliating for
Loudermilk‘s complaint of unsafe working conditions. The third amended complaint
pleads facts showing Lowe-Copeland was retaliating against Loudermilk because she was
angered by Loudermilk‘s choice to work with Ms. Walters. Loudermilk characterizes
Lowe-Copeland‘s conduct as retaliatory before she complained to management about it.
Although Loudermilk alleged Lowe-Copeland‘s conduct worsened after her complaint
was lodged, the operative paragraphs of the section 6310 cause of action do not allege an
actionable linkage between Lowe-Copeland‘s conduct and Loudermilk‘s safety
complaint.
Therefore, even assuming Loudermilk‘s appeal concerning the dismissal of her
last remaining cause of action against Lowe-Copeland was timely, the trial court did not
err in dismissing it.

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E. Violation of Labor Code Section 6400
In her second amended complaint, Loudermilk alleged that by not protecting her
―against [Lowe-Copeland‘s] workplace violence and harassment,‖ the County defendants
failed to provide her with a safe and healthful place of employment and violated Labor
Code section 6400. She alleged she suffered economic and emotional distress damages
and was required to seek medical and mental health treatment for a work-related injury as
a result of the violation. The trial court sustained the County defendants‘ demurrer to this
cause of action without leave to amend on the grounds Loudermilk failed to plead any
facts showing the claim fell within any legally recognized exception to the general rule
that actions by an employee against an employer for workplace injuries are within the
exclusive province of the workers‘ compensation system.
Labor Code section 3602, subdivision (a) provides that where certain conditions
exist the right to recover workers‘ compensation remedies is the employee‘s sole and
exclusive remedy against the employer. This reflects the legislative compromise at the
core of the workers‘ compensation system: ―[T]he employer assumes liability for
industrial personal injury or death without regard to fault in exchange for limitations on
the amount of that liability. The employee is afforded relatively swift and certain
payment of benefits to cure or relieve the effects of industrial injury without having to
prove fault but, in exchange, gives up the wider range of damages potentially available in
tort.‖ (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16 (Shoemaker).) One recognized
exception to workers‘ compensation exclusivity is where the employer steps out of its
proper role and exposes the employee to a risk beyond that ―reasonably encompassed
within the compensation bargain.‖ (Id. at pp. 16–17.) Loudermilk submits her Labor
Code section 6400 claim comes within this exception because she alleges outrageous
conduct by Lowe-Copeland including outright threats of violence and intimidation.
Setting aside the characterizations and labels Loudermilk uses in describing Lowe-
Copeland‘s conduct (e.g., assaultive) and focusing on the facts she alleges, it is apparent
this case does not come within the exception to exclusivity recognized in Shoemaker.
She alleges Lowe-Copeland interrogated and shouted at her on one occasion, followed

16
her around and criticized her work, contrived to get some of the detainees mad at her, and
made statements in her presence that Loudermilk took as implied threats to her safety.
This is not enough to avoid the Labor Code‘s exclusivity provisions: ―[W]hen the
misconduct attributed to the employer is actions which are a normal part of the
employment relationship, such as demotions, promotions, criticism of work practices, and
frictions in negotiations as to grievances, an employee suffering emotional distress
causing disability may not avoid the exclusive remedy provisions of the Labor Code by
characterizing the employer‘s decisions as manifestly unfair, outrageous, harassment, or
intended to cause emotional disturbance resulting in disability.‖ (Cole v. Fair Oaks Fire
Protection Dist. (1987) 43 Cal.3d 148, 160.) Discipline and criticism are normal parts of
the employment relationship; even if such conduct may be characterized as intentional,
unfair or outrageous, it is covered by the workers‘ compensation exclusivity provisions.
(Shoemaker, supra, 52 Cal.3d at p. 25.) As the trial court observed, this case involves no
allegations of violent or coercive criminal conduct of a kind that has been found to fall
outside the bounds of a normal employment relationship. (See Charles J. Vacanti, M.D.,
Inc. v. State Comp. Ins. Fund, supra, 24 Cal.4th 800, 822, and cases cited therein.)
The trial court did not err in dismissing Loudermilk‘s Labor Code section 6400
claim.

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 III. DISPOSITION
The judgment is affirmed as to the County defendants, and the appeal is dismissed
as to defendant Lowe-Copeland.

_________________________
Margulies, Acting P.J.

We concur:

_________________________
Dondero, J.

_________________________
Banke, J.

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