Filed 12/7/22 Mendones v. Washington Hospital Healthcare System CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MARIDOL C. MENDONES,
Plaintiff and Appellant,
v. A165164
WASHINGTON HOSPITAL
(Alameda County
HEALTHCARE SYSTEM,
Super. Ct. No. HG19013225)
Defendant and Respondent.
Maridol C. Mendones appeals from an order and judgment of
dismissal in favor of her former employer Washington Hospital
Healthcare System (WHHS or the hospital).
Mendones contends the trial court erred in sustaining a demurrer
to her second amended complaint (SAC) without leave to amend the
causes of action for breach of contract, wrongful termination,
retaliation, and discrimination. We agree. As explained below, we find
the SAC alleges a cause of action for retaliation under the Fair
Employment and Housing Act (Gov. Code, § 12940; FEHA), and
Mendones may be able to amend the SAC to allege causes of actions for
breach of contract, wrongful termination, and discrimination under
1
FEHA (Gov. Code, §§ 12935, 12960). Accordingly, we shall reverse and
remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND1
A. Mendones’ Employment with WHHS
On July 13, 2015, WHHS hired Mendones as a per diem2 “staff
nurse II” in the medical-surgical and telemetry unit, working under the
supervision of a nurse manager. According to Mendones, her “job
performance evaluation was outstanding,” and she had received a
September 2017 “recommendation letter” from her nurse manager.
While working at the hospital, Mendones was a member of the
California Nurses Association (CNA), which had a collective bargaining
agreement (CBA) with the hospital. The agreement was in the form of
a Memorandum of Understanding (MOU), which directed the hospital
1 We set forth only those facts necessary to resolve this appeal.
Because an appellant may even rely on statements made for the first
time on appeal to demonstrate a reasonable possibility the complaint
can be amended to state a cause of action (Eghtesad v. State Farm
General Insurance Co. (2020) 51 Cal.App.5th 406, 414), we have taken
the facts from the SAC’s allegations, as well as the factual allegations
made in Mendones’ trial court opposition to the demurrer and her
motion for reconsideration.
By our order of June 20, 2022, we took judicial notice of the
superior court record filed in a prior appeal (Mendones v. Washington
Hospital Healthcare System (dec. Feb. 16, 2022, A162989) [nonpub.
opn.]), and deemed it incorporated into the record of this appeal (Cal.
Rules of Court, rule 8.147). On our own motion, we take judicial notice
of our records on the prior appeal in case No. A162989. (Evid. Code.,
§ 452, subd. (d) [“[j]udicial notice may be taken of the following matters
. . . [¶] . . . [¶] (d) Records of (1) any court of this state . . . .”].)
2 “Per diem” referred to non-benefited employees who worked a
flexible or sporadic work schedule and were hired on an as-needed
basis.
2
to furnish CNA with copies of all work rules and rules of conduct
pertaining to employees within CNA’s jurisdiction; this included
Memorandum #2-95 E, titled Employee Disciplinary and Involuntary
Separation Procedures (Memo #2-95E).
The MOU included provisions regarding the terms and conditions
of employment for per diem nurses, including compensation at
minimum rates as set forth in an Appendix A. The MOU also
addressed the rules governing a nurse’s conduct while employed by the
hospital. Specifically, WHHS was granted “the right to assess
disciplinary action or discharge any Nurse for just cause”; if, in the
opinion of CNA, an employee had been unjustifiably discharged or
disciplined, “such discharge . . . or discipline shall be subject to the
grievance procedure.”
The MOU’s “grievance adjustment and arbitration” provision
allowed for a review procedure to “cover all Nurse complaints and
grievances.” The procedure consisted of four steps: Step One –
Department Review; Step Two – Administrative Review; Step Three –
Grievance Committee; and Step Four – Arbitration. Time limits were
set for the filing of grievances and for each step of the review
procedure, with the proviso that the time limits could be modified by
mutual consent of the concerned parties. Additionally, Memo #2-95E
included a provision that in the case of disciplinary action, a nurse’s
supervisor had the “ ‘option’ ” to place the nurse “ ‘on temporary-
indefinite suspension without pay.’ ”
On November 20, 2017, the hospital’s Director of Human
Resources informed Mendones that she was being placed on indefinite
paid suspension pending an investigation of a complaint concerning her
3
“medication administration.”3 According to Mendones, the specific
complaint concerned her “unusual trend of [cancelling] medication
transaction[s]” from an automated medication dispenser,4 which
purportedly resulted in the loss of medication.
Mendones was told to continue to submit a work schedule with
her availability and that it would be used to determine her salary
consistent with the regulations applicable to her status as a per diem
employee under the CBA. Mendones submitted her work schedules to
her nurse manager and was paid based on her submitted work
schedules from November 20, 2017 to December 30, 2017.
However, on January 1, 2018, salary payments were stopped
without explanation despite Mendones continuing to be on indefinite
3 Mendones later received two written notices of her suspension,
both dated November 29, 2017. A “notice of disciplinary suspension of
employment with pay” informed Mendones that she had been
suspended with pay starting November 20, 2017 due to the following
circumstances: “Complaint on Medication Administration.” A “notice of
investigatory suspension of employment” informed Mendones that she
had been suspended with pay for an indefinite period pending
investigation of the following circumstances: “Pursuant to
Memorandum # 2-95E of Employee Disciplinary [a]nd Involuntary
Separation Procedures, the Administrators decided to place you on
indefinite paid suspension for Complaint on Medication
Administration. [¶] Payment will be based according to your submitted
work schedule as requisite for Per Diem employee.”
4 According to Mendones, the automated medication dispenser is a
cart/cabinet containing all medications used throughout the hospital.
Each medication cart/cabinet is linked to the main computer
maintained by the hospital’s Pharmacy Department, where all
medication information is stored. “Staff are given access to the
. . . medication unit (medstation) via a password or biometric
identification (fingerprint scan).”
4
paid suspension.5 Mendones inquired of hospital employees concerning
the stopped salary payments and her status as an employee but
received no response. Consequently, she sought advice from CNA’s
representatives and counsel. During the last week of February 2018,
Mendones filed a report with the California State Department of
Industrial Relations Labor Commissioner’s Office about WHHS’s
refusal to pay her salary during her indefinite paid suspension. She
did not pursue the claim after learning she was still employed by the
hospital.
On April 5, 2018, Mendones sent text messages to her nurse
manager. In those messages, she complained that “I’m the only one
investigated and yet hundreds of staff accessed the [medication
dispenser] where missing pills” were stored. The nurse manager
responded “I wish I have [sic] an answer for you Maridol.” Mendones
sent a response that many others accessed the medication dispenser
and did cancellations and yet she was the only one investigated, which
was “discrimination.” The nurse manager then responded “I’m afraid,
yes, it seems like that . . . I’m sorry for you.”
After the completion of WHHS’s investigation, Mendones was
fired on May 16, 2018 for “excessive medication cancellation
transaction[s]” resulting in the loss of medication, as well as for
violations of patient confidentiality and a violation of the CBA.
5 Mendones further alleged that despite the lack of salary
payments, she continued to submit her work schedules, which
continued to be accepted by her nurse manager, until she was
terminated on May 16, 2018.
5
On May 23, 2018, Mendones asked her nurse manager what
provision of the CBA she had violated. Her nurse manager responded
that Mendones had violated the CBA by making a report to the Labor
Commission regarding her unpaid suspension while she was still
employed by the hospital. Mendones responded that she thought she
was protected from discharge under the law, indicated her intention to
“proceed to step one grievance,” and requested the nurse manager’s
availability to meet and confer as he was responsible for handling that
initial step of the grievance procedure.
B. Trial Court Proceedings
On April 2, 2019, one month after receiving a right to sue letter
from the Department of Fair Employment and Housing (DFEH),
Mendones filed a complaint against WHHS for monetary damages and
other relief. The pleading at issue on appeal is the SAC, filed after the
trial court sustained demurrers with leave to amend as to both the
complaint and first amended complaint.
The SAC’s first four causes of action seek monetary damages for
the failure to pay her salary while on indefinite paid suspension and for
her later termination. Under the cause of action for breach of contract
(first cause of action), Mendones sought monetary relief primarily
premised on an allegation that she was entitled to be paid from
January 1, 2018 to May 16, 2018 while on indefinite paid suspension
(first cause of action). Under the causes of action for wrongful
termination, retaliation, and discrimination, Mendones sought
monetary relief for her termination, primarily based on allegations that
her termination (1) was not based on “just cause” (second cause of
action); (2) was retaliation for the protected activity of filing a report
6
with the Labor Commissioner regarding her failure to receive salary
payments while on indefinite paid suspension and due to a “pending
court action” (third cause of action); and (3) was discriminatorily
motivated because there were many staff members, including nurses of
Mendones’ similar age (over 40), gender (female), and nationality
(Filipina), who all performed medication administration in the same
manner, but Mendones was the “ ‘only one’ ” who was investigated,
suspended, and terminated based on medication administration (fourth
cause of action). The complaint also included causes of action for
professional negligence and defamation.
On October 21, 2020, the trial court sustained the demurrer to
the SAC (1) without leave to amend the causes of action for breach of
contract, wrongful termination, retaliation, and discrimination, and (2)
with leave to amend the causes of action for professional negligence and
defamation, except that the demurrer was sustained without leave to
amend as to an allegation that WHHS purportedly made defamatory
comments about Mendones to the Board of Registered Nursing. The
court specifically ordered Mendones to file a third amended complaint
(TAC), which pleading was to exclude the stricken causes of action, and
was to include only the fifth (professional negligence) and sixth
(defamation) causes of action “within 10 court days of the publication of
this order.” When Mendones failed to timely file a TAC, WHHS moved
ex parte to dismiss the action; in response Mendones filed her TAC,
limited to causes of action for professional negligence and defamation,
and excluding the stricken causes of action.
7
On January 8, 20216, the court denied WHHS’s ex parte motion
to dismiss without prejudice and noted the “matter” would be resolved
at a case management conference scheduled for February 1. Following
that conference, the court dismissed the case without prejudice.
On May 4, Mendones filed a motion seeking reconsideration of
the court’s adverse rulings on the demurrer to the SAC and a request to
file a TAC, limited to causes of action for professional negligence and
defamation as permitted by the October 21, 2020 demurrer order.
WHHS opposed Mendones’ motion and request as both untimely and
without merit.
The motion seeking reconsideration was argued and submitted at
a May 27 hearing. On June 10, the court issued an order denying the
motion for reconsideration as both untimely and without merit. The
court also denied the request to file a TAC for failure to timely file the
proposed pleading.
On March 14, 2022, the trial court entered an order and
judgment (one document) dismissing the action without prejudice.
Mendones’ timely appeal ensued.7
6 Unless otherwise noted, all future dates were in 2021.
7 By her notice of appeal, Mendones seeks review of the
March 14, 2022 order and judgment of dismissal, as well as review of
the October 21, 2020 order sustaining the demurrer to the SAC (with
and without leave to amend) and the June 10, 2021 order denying her
motion for reconsideration. We previously dismissed Mendones’ earlier
attempt to challenge the October 21, 2020 order because the record
provided on that prior appeal contained only an unsigned order of
dismissal, which was not a valid judgment of dismissal. (Mendones v.
Washington Hospital Healthcare System, supra, A162989 at p. 4.) In
our decision (id. at p. 6), we informed Mendones that she could file a
8
DISCUSSION
Mendones challenges the October 21, 2020 order to the extent
that the trial court sustained the demurrer to the SAC without leave to
amend the causes of action for breach of contract, wrongful
termination, retaliation, and discrimination.
I. Legal Framework for Review of Demurrer
On appeal, we review the demurrer order de novo,8 as “[a]
demurrer tests the sufficiency of a complaint by raising questions of
law.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517 (Rodas).)
“Because a demurrer raises only questions of law, ‘ “an appellant
challenging the sustaining of a general demurrer may change his or her
theory on appeal [citation], and an appellant court can affirm or reverse
the ruling on new grounds. [Citation.] After all, we review the validity
of the ruling and not the reasons given.” ’ ” (Harris v. Wachovia
Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1022.)
In resolving the merits of a demurrer, “all material facts pleaded
in the complaint and those that arise by reasonable implication, . . . are
subsequent appeal if she obtained a valid judgment of dismissal, which
she obtained on March 14, 2022.
We dismiss the separate appeals from the October 21, 2020 and
the June 10, 2021 orders as they are not separately appealable and are
reviewed on the appeal from the March 14, 2022 judgment. (See Torres
v. City of San Diego (2007) 154 Cal.App.4th 214, 222 [“there can only be
one ‘final judgment’ in an action”]; see Code Civ. Proc., § 906 [“[u]pon
an appeal pursuant to Section 904.1 or 904.2, the reviewing court may
review the . . . decision and any intermediate ruling, proceeding, order
or decision which involves the merits or necessarily affects the
judgment or order appealed from or which substantially affects the
right of a party . . . .”].)
8 Accordingly, we do not separately address Mendones’ contention
that the trial court erred in denying her motion for reconsideration.
9
deemed admitted by the demurring party. [Citations.] The complaint
must be construed liberally by drawing reasonable inferences from the
facts pleaded.” (Rodas, supra, 87 Cal.App.4th at p. 517.) Where, as in
this case, the demurrer is based on a claim that the pleading does not
state “ ‘facts sufficient to constitute a cause of action, the rule is, that if
upon a consideration of all the facts stated, it appears that the plaintiff
is entitled to any relief at the hands of the court against the
defendants, the complaint will be held good, although the facts may not
be clearly stated, or may be intermingled with a statement of other
facts irrelevant to the cause of action shown, or although the plaintiff
may demand relief to which he is not entitled under the facts alleged.’ ”
(Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) “[W]e are not
concerned with plaintiff’s possible inability or difficulty in proving the
allegations of the complaint.” (Ibid.)
We review the trial court’s denial of a request for leave to amend
for an abuse of discretion. (Schifando v. City of Los Angeles (2003) 31
Cal.4th 1074, 1081.) “The appellant has the burden to identify specific
facts showing the complaint can be amended to state a viable cause of
action. [Citation.] An appellant can meet this burden by identifying
new facts or theories on appeal.” (Minnick v. Automotive Creations,
Inc. (2017) 13 Cal.App.5th 1000, 1004; see Code Civ. Proc., § 472c,
subd. (a) [“[w]hen any court makes an order sustaining a demurrer
without leave to amend the question as to whether or not such court
abused its discretion in making such an order is open on appeal even
though no request to amend such pleading was made”].)9
9 We find no merit to WHHS’s contention that by filing a TAC,
albeit belatedly, Mendones waived any argument that the trial court
10
II. The Demurrer to the Causes of Action for Breach of
Contract and Wrongful Termination was Wrongly
Sustained without Leave to Amend
Mendones based her first cause of action for breach of contract on
two claims. One, that WHHS had breached an oral and implied
agreement or promise to pay her salary during her indefinite paid
suspension. Two, that WHHS had breached the following provisions of
the CBA: (1) “ ‘[t]he hospital shall notify any nurse who is being
suspended from employment of the nurse’s right to have a nurse
representative present during the formal presentation of such notice of
suspension;’ ” (2) “ ‘[i]f a nurse is dissatisfied with a decision or a
condition affecting her employment, the nurse and her authorized
representative shall first meet and discuss the matter with her
department head;’ ” (3) after plaintiff was terminated, she was
erred by sustaining the demurrer to the SAC without leave to amend
the causes of action for breach of contract, wrongful termination,
retaliation, and discrimination because she did not include those
stricken causes of action in the filed TAC. Unlike Metzenbaum v.
Metzenbaum (1948) 86 Cal.App.2d 750, and Gaglione v. Coolidge (1955)
134 Cal.App.2d 518, cited by WHHS, the trial court here did not
sustain the demurrer to the SAC with leave to amend all of the causes
of action. Rather, the court specifically sustained the demurrer without
leave to amend four causes of action and directed that any new TAC
was to include only causes of action for professional negligence and
defamation, and not the stricken causes of action. Because the court’s
order did not sustain the demurrer as to the entirety of the SAC, those
portions of the order sustaining the demurrer without leave to amend
causes of action for breach of contract, wrongful termination,
retaliation, and discrimination remain “open on appeal,” and
Mendones, as “a party aggrieved,” “may claim the order as error in an
appeal from the final judgment in the action.” (Code Civ. Proc., § 472c,
subds. (b), (c).)
11
“’entitled [to have] step one grievance proceeding within ‘14 calendar
days’ by her department head/unit manager. . . and thereafter up to
Step four grievance;” and (4) WHHS’s “ ‘[t]echnology must be consistent
with the provision of safe, therapeutic, effective care, which promotes
patient safety,’ ” and “ ‘[t]he manner in which technology is used shall
support patient confidentiality.’ ” The second cause of action for
wrongful termination was premised on the allegation that WHHS had
breached the CBA’s express provision that a nurse could only be
terminated for just cause.
In sustaining the demurrer without leave to amend, the trial
court found the causes of action for breach of contract and wrongful
termination failed to state facts sufficient to support those claims. The
trial court also found the claims were governed by section 301 of the
Labor Management Relations Act (29 U.S.C. § 185) (hereinafter section
301), which as a general rule directs state courts to apply federal labor
law to lawsuits related to CBAs. Applying federal law, the court stated:
“It is well established that where a collective bargaining agreement
provides for grievance and arbitration procedures in the event of an
employment related dispute, those procedures must be exhausted with
the timelines provided for in the CBA. Plaintiff has failed to plead
exhaustion of the grievance procedures proscribed by the CBA.” As we
now explain, we conclude the trial court erred as there is an exception
to the general rule that an employee use the grievance procedure in the
CBA where the employer prevents an employee from exhausting the
grievance procedure in a CBA.
Section 301 was enacted to ensure that “collective bargaining
agreements would be uniformly interpreted across the nation in
12
accordance with substantive federal labor law.” (Friday v. Hughes
Aircraft Co. (1986) 188 Cal.App.3d 117, 121, citing Teamsters Local v.
Lucas Flour Co. (1962) 369 U.S. 95, 103-104.) Federal and state courts
have concurrent jurisdiction over lawsuits seeking relief for violations
of CBAs, but regardless of where the lawsuit is filed, it is governed
exclusively by federal law. (Abreu v. Swenhard’s Swedish Bakery
(1989) 208 Cal.App.3d 1446, 1452.)
Here, the trial court properly found the causes of action for
breach of contract and wrongful termination were governed by federal
labor law as the claims set forth in the SAC are clearly directed at
WHHS’s purported violation of the MOU.10 And, as Mendones
admitted in her trial court opposition to the demurrer, her claim for
salary while on indefinite paid suspension is not based on an “oral
[and] implied contract,” but rather on WHH’s purported violation of the
specific term in Memo #2-95E, which allowed but did not require a
supervisor to place a nurse on indefinite suspension without pay.11
10 We see no merit to Mendones’ contention that federal labor law
should not apply in this case because she is asserting claims that do not
require an interpretation of the CBA. While it is certainly true that “a
plaintiff covered by a collective-bargaining agreement is permitted to
assert legal rights independent of that agreement” (Caterpillar, Inc. v.
Williams (1987) 482 U.S. 386, 396, italics in original), so that there is
no need to interpret the terms of the CBA, that is not the situation
here.
11 In the trial court Mendones also asserted her claim for salary
while on indefinite paid suspension did not require an interpretation of
the CBA based on a theory of promissory estoppel as alleged in the
SAC, but she does not renew that argument on appeal. Accordingly, we
deem the issue waived or abandoned. (Pfeifer v. Countrywide Home
Loans, Inc. (2012) 211 Cal.App.4th 1250, 128.)
13
The trial court also properly noted the “general rule” that “federal
labor policy requires that individual employees wishing to assert
contract grievances must attempt use of the contract grievance
procedure agreed upon by employer and union as the mode of redress.”
(Republic Steel Corp. v. Maddox (1965) 379 U.S. 650, 652.) However,
the trial court did not take note of the exception to the general rule. As
the high court informs, an employee is not limited to the exclusive
remedial procedure established by the CBA “when the conduct of the
employer amounts to a repudiation of those contractual procedures.”
(Vaca v. Sipes (1967) 386 U.S. 171, 185.) “In such a situation . . ., the
employer is estopped by his own conduct to rely on the unexhausted
grievance and arbitration procedures as a defense to the employee’s
cause of action.” (Ibid.) 12
On appeal Mendones also contends her claim for salary while on
indefinite paid suspension did not require an interpretation of the CBA
as the claim is for “promised paid suspension” which is “non-negotiable”
under state law. However, she cites no state law that prohibits the
hospital from placing a nurse on indefinite suspension without pay as
allowed under Memo #2-95E. Nor does she cite any case law
supporting her argument. Accordingly, we treat the contention as
waived. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
830 [“[t]he absence of . . . citation to authority allows this court to treat
the contention as waived”].)
12 While the parties do not cite to Vaca v. Sipes, supra, 386 U.S.
171, we find the case accurately expresses the principle of law
addressing the situation before us. Because this is a demurrer, we do
not need to separately address the parties’ related arguments directed
at the trial court’s ruling regarding Mendones’ purported failure to
exhaust her remedies under the CBA’s grievance procedure.
14
This is precisely the situation alleged by Mendones, that WHHS
breached the CBA by the failure of its employees to comply with her
requests to pursue her disputes using the grievance procedure in the
CBA. As she stated: “WHHS kept on reasoning for no available dates
despite plaintiff’s union representatives’ diligence of asking, until
plaintiff gave up on October 2018.” In her trial court opposition to the
demurrer, Mendones alleged additional details regarding the
circumstances regarding her attempts to invoke the CBA’s grievance
procedure and WHHS’s allegedly unsatisfactory responses. Whether
these allegations are true, and whether WHHS is estopped from
seeking dismissal of the claims based on a defense of failure to exhaust
the grievance procedure, are questions of fact not appropriately
determined at the demurrer stage. (See Stroman v. Atchinson T & S.F.
Ry. Co. (1958) 161 Cal.App.2d 151, 166 [it was for the jury to determine
whether the employee’s failure to exhaust the collective bargaining
grievance procedure should be excused based on the employer’s alleged
misrepresentations regarding the grievance procedure].)
We therefore conclude the trial court should have sustained the
demurrer with leave to amend to allow Mendones the opportunity to
file an amended complaint alleging facts in support of her contention
that she is entitled to maintain a state court action for breach of
contract and wrongful termination as her failure to exhaust the
grievance procedure provided in the CBA was due to WHHS’s
repudiation of the grievance procedure. Whether Mendones will be
able to plead and ultimately prove that her claims for breach of
contract and wrongful termination may be adjudicated in this state
15
court action due to WHHS’s repudiation of the CBA’s grievance
procedure is not before us on this appeal.
III. The Demurrer to the Cause of Action for Retaliation
under FEHA Should Be Overruled
Mendones seeks to reinstate the cause of action for retaliation
under FEHA on the basis that the SAC includes sufficient factual
allegations to state such a cause of action.
To state a cause of action for retaliation under FEHA, a plaintiff
must allege (1) engagement in protected activity, (2) resulting in an
adverse employment action, and (3) a causal connection between the
protected activity and the adverse employment action. (Akers v. County
of San Diego (2002) 95 Cal.App.4th 1441, 1443; see Gov. Code, § 12940.)
In sustaining the demurrer without leave to amend the cause of
action for retaliation under FEHA, the trial court found the SAC did
not include allegations identifying a “ ‘protected activity’ ” and did not
allege any causal relationship between a protected activity and the
adverse employment action at issue (termination of employment). In
fact, however, the SAC does state sufficient facts to withstand
demurrer as it alleges, in pertinent part, that Mendones’ termination
was retaliation for her protected activity — filing a report with the
Labor Commissioner regarding her failure to receive salary payments
while on indefinite paid suspension.
We see no merit to WHHS’s contention that the demurrer was
properly sustained because Mendones was not terminated based on the
filing of the report with the Labor Commissioner. While WHHS asks
us to consider its letter to Mendones stating she was terminated for
violating a provision of the CBA (not for filing a report with the Labor
16
Commissioner), Mendones does not concede or admit this was a valid
basis for her termination. A demurrer cannot be converted “into an
incomplete evidentiary hearing” in which the demurring party can rely
on documentary evidence and “the opposing party is bound by what
that evidence appears to show.” (Fremont Indemnity Co. v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 115.)
Accordingly, we conclude the demurrer to the cause of action for
retaliation under FEHA should have been overruled as the SAC
contains sufficient allegations to support such a claim – that
termination was based on the protected activity of filing a report with
the Labor Commissioner.13
IV. The Demurrer to the Cause of Action for Discrimination
Under FEHA Should Be Sustained with Leave to Amend
Mendones also seeks to reinstate the cause of action for
discrimination under FEHA to amend the pleading to include the
requisite jurisdictional allegations.
As a jurisdictional prerequisite to the filing of a discrimination
action under FEHA, a plaintiff has the burden to plead (and ultimately
prove) timely exhaustion of administrative remedies, such as the filing
of a complaint with the DFEH and obtaining a right to sue letter from
the DFEH. (See Kim v. Konad USA Distribution, Inc. (2014) 226
Cal.App.4th 1336, 1345-1346; see Gov. Code, §§ 12935, 12960.) Here,
the trial court properly sustained the demurrer to the cause of action
13 We need not, and do not, address whether the SAC’s allegations are
also sufficient to state a cause of action for retaliation based on claim
that the termination was due to the protected activity of a “ ‘pending
court case.’ ”
17
for discrimination under FEHA as the SAC did not include necessary
jurisdictional allegations, including that Mendones had received a right
to sue letter from the DFEH before filing her original complaint.
However, the record shows that Mendones, in opposing the
demurrer to the SAC, explicitly asserted she had received a DFEH
right to sue letter before filing her original complaint. And, in her
motion for reconsideration, she attached both a DFEH complaint and a
DFEH right to sue letter. Accordingly, while the demurrer was
properly sustained, the trial court abused its discretion in failing to
grant Mendones leave to amend to include the necessary jurisdictional
allegations regarding her exhaustion of administrative remedies by the
filing of a DFEH complaint and the receipt of a right to sue letter from
the DFEH.
In addition, we see no merit to WHHS’s argument that we should
affirm dismissal of the cause of action for discrimination under FEHA
because the SAC does not otherwise contain sufficient substantive
factual allegations to support a claim for discrimination under the
disparate treatment theory.
To state a cause of action for discrimination under the disparate
treatment theory, a plaintiff must set forth facts showing “ ‘actions
taken by the employer from which one can infer, if the actions remain
unexplained, that it is more likely than not that such actions were
“based on a [prohibited] discriminatory criterion . . . .” ’ ” (Ibarbia v.
Regents of University of California (1987) 191 Cal.App.3d 1318, 1327.)
The elements of the cause of action include allegations that the plaintiff
was (1) “a member of a protected class,” (2) “performing competently in
the position . . . held;” (3) who “suffered an adverse employment action,
18
such as termination . . . . ;” and (4) “some other circumstance
suggest[ing] discriminatory motive.” (Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 355.)
In support of its argument for affirmance, WHHS contends the
SAC does not include allegations that Mendones was a member of a
protected class and that she was performing competently in the
position she held in the hospital. We disagree. The SAC includes
allegations that Mendones was a member of a FEHA protected class in
terms of age, gender, race and nationality – over 40 years of age,
female, and of Filipino ancestry; and that she had been hired at WHHS
as a “staff nurse II per diem,” and her “job performance evaluation was
outstanding and in fact, she had a recommendation letter made by her
nurse manager, . . . dated September 26, 2017.”
Additionally, the SAC includes allegations that Mendones had
suffered adverse employment decisions (indefinite suspension and then
termination); and circumstances suggesting a discriminatory motive for
the adverse employment decisions based on allegations that WHHS
had purportedly investigated only the administration of medications by
Mendones, excluding all other staff nurses – some of whom were in the
same protected class – who had also administered medications during
the shifts in which medications had been lost. Also, in her motion for
reconsideration Mendones submitted a text message of her nurse
manager’s affirmative response to her allegation that she had been the
subject of a discriminatory investigation resulting in her indefinite
suspension and termination.
Whether Mendones will ultimately be able to prove that WHHS
conducted a discriminatory investigation of her administration of
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medication is not before us. We hold only that she has alleged
sufficient substantive facts to withstand demurrer.14
V. Conclusion
In sum, the order and judgment of dismissal should be reversed
as Mendones has alleged a cause of action for retaliation under FEHA
and may be able to allege causes of actions for breach of contract,
wrongful termination, and discrimination under FEHA. On remand,
the trial court will be directed to amend its October 21, 2020 demurrer
order, by (a) vacating those portions as sustained the demurrer without
leave to amend causes of action for breach of contract, wrongful
termination, retaliation and discrimination, and (b) substituting
provisions overruling the demurrer to the cause of action for retaliation
under FEHA and sustaining the demurrer with leave to amend causes
of action for breach of contract, wrongful termination, and
discrimination under FEHA.
Because Mendones will be filing a third amended complaint and
leave to amend may be granted at any time “in furtherance of justice,”
and on any terms as may be proper (Code Civ. Proc., §473), we deem it
appropriate to direct the trial court to allow the new pleading to include
causes of action for professional negligence and defamation, as
permitted by the October 21, 2020 demurrer order.15
14 We need not, and do not, address whether the SAC’s allegations
are also sufficient to state a cause of action for discrimination under a
disparate impact theory.
15 In light of our determination, we need not and do not address
Mendones’ additional arguments.
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DISPOSITION
The separate appeals from the October 21, 2020 and June 10,
2021 orders are dismissed.
The March 14, 2022 order and judgment of dismissal is reversed
and the matter is remanded for further proceedings. On remand, the
trial court is directed to vacate so much of its October 21, 2020 order as
sustained the demurrer to the second amended complaint without leave
to amend causes of action for breach of contract, wrongful termination,
retaliation, and discrimination. The trial court shall enter a new order
(1) overruling the demurrer to the cause of action for retaliation under
the Fair Employment and Housing Act (Gov. Code, § 12940); and (2)
sustaining the demurrer to the second amended complaint with leave to
amend causes of action for discrimination under the Fair Employment
and Housing Act (Gov. Code, §§ 12935, 12960), and causes of action for
breach of contract and wrongful termination. The trial court is also
directed to include in its new order a provision that any amended third
complaint may include causes of action for professional negligence and
defamation as permitted by the October 21, 2020 order.
The parties shall bear their own costs. (Cal. Rules of Court,
rule 8.278(a)(3), (5).)
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
A165164/Mendones v. Washington Hospital Healthcare System
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