Johnson v. Riverside Healcare ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER LYNN JOHNSON, M.D., 
Plaintiff-Appellant,
v.
RIVERSIDE HEALTHCARE SYSTEM, LP,
a California limited partnership,
d/b/a Riverside Community
Hospital; RIVERSIDE HEALTHCARE
SYSTEM, LLC, a California limited No. 06-55280
liability corporation; COLUMBIA/
HCA WESTERN GROUP, INC., a  D.C. No.
CV-03-01392-ABC
Tennessee corporation, doing
business in California; MEDICAL OPINION
STAFF OF RIVERSIDE COMMUNITY
HOSPITAL, a California
unincorporated association; ROBERT
DUNCANSON, M.D.; LIBBY MARTIN;
BARBARA MARSHALL; GAY
DICKINSON; PATRICIA LEMMLE; EARL
TATE; MICHAEL RAWLINGS,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
October 18, 2007—Pasadena, California
Filed February 13, 2008
1295
1296 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
Before: Diarmuid F. O’Scannlain and Milan D. Smith, Jr.,
Circuit Judges, and Michael W. Mosman,* District Judge.
Opinion by Judge O’Scannlain
*The Honorable Michael W. Mosman, United States District Judge for
the District of Oregon, sitting by designation.
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1299
COUNSEL
Dale L. Gronemeier, Gronemeier & Associates, P.C., South
Pasadena, California, argued the cause for the plaintiff-
appellant, and filed briefs.
James L. Payne, Payne & Fears LLP, Irvine, California,
argued the cause for the defendants-appellees, and filed a
brief; Laura Fleming, Payne & Fears LLP, Irvine, California,
and Tami Smason, Foley & Lardner LLP, Los Angeles, Cali-
fornia, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether a physician who
asserts that he was discriminated against (based on his race,
sexual orientation, and perceived disability) by doctors and
nurses at the hospital where he treated patients can establish
civil rights claims under federal and state law.
1300 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
I
A
Christopher Lynn Johnson worked as a physician at the
Riverside Community Hospital (“Riverside”)1 and as a mem-
ber of the Medical Staff of Riverside Community Hospital
(“Medical Staff”) from October 1999 until February 2002.
Johnson’s responsibilities included performing plastic sur-
geries and providing trauma consultations in Riverside’s
emergency room. Johnson identifies himself as African Amer-
ican and bisexual. Soon after he began his tenure at Riverside,
Johnson alleges that several physicians regularly harassed him
because of his sexual orientation and their mistaken belief that
he suffered from HIV/AIDS. He alleges that several nurses
harassed him and refused to participate in surgeries with him
for the same reasons. In addition, Johnson points to one par-
ticularly serious incident of racial discrimination during his
time at Riverside. According to Johnson, a colleague, Dr. Vla-
sak, admonished him by using a racial slur after Johnson per-
formed surgery on one of Vlasak’s patients. As the facts are
set forth in Johnson’s complaint, Vlasak failed to review the
patient’s CT scan and consequently failed to realize that the
patient was suffering from a skull fracture with an underlying
brain contusion. Upon discovering the problem, Johnson
admitted the patient for surgery and performed the necessary
procedure. When Vlasak learned that Johnson had corrected
(and therefore exposed) his oversight, Vlasak moved as if to
strike Johnson, “charged” into the room where Johnson was
standing and “screamed . . . ‘You fucking nigger—why did
you do that to me?’ ”
1
Also named as defendants in this suit are Riverside Healthcare System,
LLC (“RHCS”), a limited partnership doing business as Riverside under
California law, and Columbia/HCA Western Group, Inc., a Tennessee cor-
poration with an ownership interest in RHCS. Hereinafter, all three entities
will be referred to collectively as “Riverside.”
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1301
Johnson worked at Riverside under the terms of a profes-
sional services agreement. The contract explicitly designated
Johnson as a “Contractor,” rather than an employee. The con-
tract also required Johnson to retain his membership and priv-
ileges with the Medical Staff. Failure to do so was a cause for
termination. In February 2002, Johnson’s Medical Staff privi-
leges were revoked after he failed to pay his membership dues
by a deadline Johnson claims the Medical Staff imposed arbi-
trarily and without warning while he was traveling out of the
country. Because full membership on the Medical Staff was
a condition of his contract, Riverside terminated Johnson soon
afterwards. Johnson immediately applied to the Medical Staff
for reinstatement, but was informed that he could only regain
his status by reapplying to the Staff as a new applicant, which
would require him to submit to a hearing before the Medical
Staff Credentials Committee. Johnson obliged, and was con-
fronted at the hearing with numerous complaints about his
behavior filed by co-workers, all of which he contends were
fabricated. After the hearing, the Committee voted to uphold
the denial of Johnson’s Medical Staff membership. Prior to
the completion of the hearing, Riverside filed a report describ-
ing the complaints against Johnson with the California Medi-
cal Board pursuant to California Business and Professions
Code § 805. Johnson argues that the filing of this report was
premature and cost him future opportunities for employment.
B
On September 26, 2002, Johnson filed a complaint against
Robert Duncanson, the Chief of the Medical Staff, with the
California Department of Fair Employment and Housing
(“DFEH”) alleging that he had been harassed, denied employ-
ment, and denied privileges to admit patients to Riverside on
account of his race and sexual orientation. On September 30,
2002, DFEH issued Johnson right-to-sue notices for Duncan-
son and several other individuals on the Medical Staff and
nursing staff.
1302 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
On September 2, 2003, Johnson filed a complaint in Cali-
fornia state court against Riverside and several other defen-
dants setting forth multiple civil rights claims under federal
and state law. He voluntarily dismissed that action, however,
on October 16, 2003. Later, on December 2, 2003, Johnson
filed a complaint in the District Court for the Central District
of California against Riverside, the Medical Staff, Duncanson,
and other individuals alleging the same causes of action,
including three relevant to this appeal: (1) racial discrimina-
tion in violation of 42 U.S.C. § 1981; (2) racial and sexual
orientation discrimination in violation of California Civil
Code § 51 (the “Unruh Civil Rights Act claim”) and § 51.5;
and (3) racial and sexual orientation discrimination in viola-
tion of California’s Fair Employment and Housing Act
(“FEHA”), Cal. Gov’t. Code §§ 12940 et seq.
The defendants moved to dismiss all claims under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district
court dismissed Johnson’s claims under California Civil Code
§§ 51 and 51.5 with prejudice, finding that Johnson had failed
to state a claim upon which relief could be granted because
neither provision creates a cause of action for employment
discrimination. The district court did not specifically address
Johnson’s § 1981 claims, but dismissed his remaining claims,
including his FEHA claims, without prejudice, granting him
leave to amend.
Johnson timely filed a first amended complaint which omit-
ted, and thereby waived, all other claims except those men-
tioned here. Thereafter, he reached a settlement with several
defendants, leaving only Riverside, Duncanson, and the Medi-
cal Staff as defendants in this action. The district court then
dismissed each of Johnson’s remaining claims under Rule
12(b)(6) for failure to state a claim.
Johnson appeals. First, he argues that the district court
erred in dismissing his § 1981 claims against all three defen-
dants, contending that he raised a triable issue of fact as to
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1303
whether the defendants created a racially hostile work envi-
ronment in violation of that provision. Second, Johnson
argues that the district court erred in dismissing his §§ 51 and
51.5 claims because both recognize a cause of action for the
type of workplace discrimination Johnson alleges here.
Finally, Johnson argues that the district court erred in dismiss-
ing his FEHA claims against all three defendants even though
the statute of limitations expired, suggesting that he was enti-
tled to equitable tolling. We consider each argument in turn.
II
The district court dismissed without discussion Johnson’s
§ 1981 claim. Nevertheless, we may affirm the district court’s
determination on any ground supported by the record. Papa
v. United States, 281 F.3d 1004, 1009 (9th Cir. 2002) (citing
Vestar Dev. II v. Gen. Dynamics Corp., 249 F.3d 958, 960
(9th Cir. 2001)). A Rule 12(b)(6) dismissal may be based on
either a “lack of a cognizable legal theory” or “the absence of
sufficient facts alleged under a cognizable legal theory.” Bal-
istreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990) (citation omitted). In reviewing the district court’s deci-
sion, we view Johnson’s complaint in the light most favorable
to him, accepting all well-pleaded factual allegations as true,
as well as any reasonable inferences drawn from them. Broam
v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (citations omit-
ted).
A
[1] Among other things, § 1981 guarantees “all persons”
the right to “make and enforce contracts.” 42 U.S.C.
§ 1981(a). Section 1981(b) defines that right to include the
right to the “enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.” As a consequence,
we have found claims alleging a hostile work environment
cognizable under § 1981. Manatt v. Bank of America, 339
F.3d 792, 797 (9th Cir. 2003). Nevertheless, § 1981 only
1304 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
creates a cause of action for those plaintiffs discriminated
against on the basis of their race or ethnicity. See Jones v.
Bechtel, 788 F.2d 571, 574 (9th Cir. 1986) (holding that a
plaintiff could not assert a § 1981 claim based on gender dis-
crimination) (citations omitted); see also Magana v. N. Mari-
ana Islands, 107 F.3d 1436, 1446-47 (9th Cir. 1997) (holding
that plaintiff’s claim that she was “Filipino” was a sufficient
basis for § 1981 relief). Thus, although Johnson’s complaint
alleges numerous incidents of sexual orientation discrimina-
tion, only his allegations of racial discrimination are relevant
to his § 1981 claim.
A prima facie claim for hostile work environment under
§ 1981 must raise triable issues of fact as to whether “(1) [the
plaintiff] was subjected to verbal or physical conduct because
of [his] race, (2) the conduct was unwelcome, and (3) the con-
duct was sufficiently severe or pervasive to alter the condi-
tions of [the plaintiff’s] employment and create an abusive
work environment.” Manatt, 339 F.3d at 798 (quoting Kang
v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002)) (inter-
nal quotation marks omitted). Moreover, the work environ-
ment must be perceived as abusive from both a subjective and
objective point of view. Brooks v. City of San Mateo, 229
F.3d 917, 923 (9th Cir. 2000). In examining whether the
workplace was objectively abusive, we consider the perspec-
tive of a reasonable person with the plaintiff’s same funda-
mental characteristics. See Fuller v. City of Oakland, 47 F.3d
1522, 1527 (9th Cir. 1995). Finally, in considering whether
the discriminatory conduct was sufficiently severe or perva-
sive, we look to “all the circumstances, including the ‘fre-
quency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.’ ” Kortan v. Cal. Youth Auth.,
217 F.3d 1104, 1110 (9th Cir. 2000) (quoting Faragher v.
City of Boca Raton, 524 U.S. 775, 787-88 (1998)).
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1305
B
[2] Johnson alleges one particularly serious incident of dis-
crimination. Johnson’s encounter with Dr. Vlasak, in which
Vlasak used a racial epithet and moved as if to strike Johnson,
is unquestionably evidence of discrimination standing alone.
Consequently, our task becomes to determine whether this
incident, combined with Johnson’s other allegations, raises a
triable issue of fact as to whether the discrimination Johnson
faced at Riverside was so “severe or pervasive” as to alter the
conditions of his employment and create an abusive work
environment. Manatt, 339 F.3d at 798; see also Brooks, 229
F.3d at 923 (noting that “the required showing of severity or
seriousness of the harassing conduct varies inversely with the
pervasiveness or frequency of the conduct”) (citations omit-
ted).
[3] Turning to these allegations, however, we find no indi-
cation that Johnson was subjected to racial discrimination on
any other occasion aside from the incident with Dr. Vlasak.
Johnson contends that a particular nurse frequently asked him
to remove trash from the Operating Room and, on one occa-
sion, refused to provide him with the necessary surgical
equipment to perform a procedure. He also contends that after
he was bitten by the security dog stationed in Riverside’s
emergency room, the dog’s trainer told him not to complain
to the hospital administrators because the dog was “more pop-
ular” with the nurses than Johnson. Although these comments
and actions may have been offensive, Johnson provides no
evidence to suggest that they were motivated by racial animus
rather than mere personal dislike.
[4] Johnson also alleges that the Medical Staff’s Residency
Selection Committee refused to consider an African-
American candidate because of his race and, after rejecting
the application, the Chairman and other members of the com-
mittee “stated in the presence of other physicians” that they
would not consider the applicant because he was African-
1306 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
American and might be gay. Johnson’s complaint does not
allege that he was present at the time the candidate’s applica-
tion was denied or at the time the Committee members’
racially offensive remarks were made. It is true that discrimi-
natory conduct directed at an individual other than the plain-
tiff may be relevant to a plaintiff’s hostile work environment
claim in certain circumstances. See Monteiro v. Tempe Union
High Sch. Dist., 158 F.3d 1022, 1033-34 (9th Cir. 1998)
(“[R]acist attacks need not be directed at the complainant in
order to create a hostile educational environment [under Title
VI].” (citations omitted)); see also Vinson v. Taylor, 753 F.2d
141, 146 (D.C. Cir. 1985) (“[E]vidence tending to show [a
supervisor’s] harassment of other women working alongside
[the plaintiff] is directly relevant to the question whether [the
supervisor] created an environment violative of Title VII”)
(citation omitted). In this case, however, the Committee mem-
bers’ conduct was not directed at Johnson, and he alleges that
he only learned about it indirectly. Thus, Johnson points to
just two incidents of discriminatory conduct over the course
of his twenty-eight-month tenure at Riverside, and only one
in which he was the victim.
[5] In the past, we have held that isolated incidents, unless
“extremely serious,” are insufficient to state a claim for hos-
tile work environment. Manatt, 339 F.3d at 798 (quoting
Faragher, 524 U.S. at 788); Vasquez v. County of Los Ange-
les, 349 F.3d 634, 642-43 (9th Cir. 2002) (concluding that
employee failed to state a hostile work environment claim
under Title VII where he was yelled at in front of others and
told that he had “a typical Hispanic macho attitude,” and that
he should work in the field because “Hispanics do good in the
field”); Kortan, 217 F.3d at 1110-11 (holding that a plaintiff
failed to state a hostile work environment claim where her
supervisor referred to other females as “castrating bitches,”
“Madonnas,” or “Regina” in her presence and called the
plaintiff “Medea” at least once). Thus, to establish the severe
or pervasive discrimination necessary for a hostile work envi-
ronment claim, we have required plaintiffs to allege that the
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1307
offending conduct occurred with a greater frequency than
Johnson has here. See Craig v. M & O Agencies, Inc., 496
F.3d 1047, 1056-57 (9th Cir. 2007) (determining that a female
employee established a prima facie case for hostile work envi-
ronment where her boss repeatedly solicited her to perform
sexual favors over several months and engaged in five signifi-
cant incidents of harassing conduct, including one in which he
followed her into a women’s restroom and kissed her); Nich-
ols v. Azteca Rest. Enters., 256 F.3d 864, 872-73 (9th Cir.
2001) (concluding that an employee had stated a hostile work
environment claim where co-workers and supervisors called
him a “faggot” and a “fucking female whore” at least once a
week and often several times a day).
Our decision in Manatt is particularly instructive. In that
case, a bank employee of Chinese descent filed a hostile work
environment claim against the bank where she was employed.
Manatt alleged that she frequently overheard co-workers
make jokes about China and “communists from Beijing” and
that she was the victim of two particularly serious incidents
of discrimination: an occasion in which two of her co-workers
made jokes about China in her presence and then pulled their
eyes back with their fingers in an attempt to mock the appear-
ance of Asians, and a separate incident in which another co-
worker told her that her enunciation of the word “Lima” was
“ridiculous,” later shouted, “China woman, China woman,
China woman, . . . get your butt over here” and instructed
Manatt to repeat the word for a colleague listening over the
telephone and, when Manatt complied, broke out in laughter,
attributing Manatt’s mispronunciation to the fact that she was
a “China woman.” 339 F.3d at 795-96.
[6] In reviewing Manatt’s allegations, we acknowledged
the severity of both events, but nevertheless concluded that
“two regrettable incidents occurring over a span of two-and-a-
half years, coupled with other offhand remarks made by Man-
natt’s co-workers and supervisor, did not alter the conditions
of Manatt’s employment.” Id. at 799. Our reasoning in Manatt
1308 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
compels a similar result in this case. Johnson alleges that he
was the victim of only one incident of discrimination over the
course of his twenty-eight-month tenure at Riverside, and that
he learned indirectly of another. While both incidents were
serious and undoubtedly caused Johnson to suffer, particularly
the incident in which he was the victim, our precedents
require a plaintiff to allege more than two isolated events to
establish that he was subjected to a hostile work environment
in violation of § 1981.
[7] Accordingly, we conclude that Johnson has not raised
a triable issue of fact as to whether he suffered “severe and
pervasive” discrimination at Riverside and that, as a conse-
quence, his § 1981 claims against the defendants must fail.
III
Our next task is to determine whether the district court
erred in dismissing Johnson’s claims under California Civil
Code §§ 51 and 51.5.
A
1
[8] California Civil Code § 51 codifies the Unruh Civil
Rights Act and provides that all persons within the State of
California are “free and equal” and “no matter what their sex,
race, color, religion, ancestry, national origin, disability, med-
ical condition, marital status, or sexual orientation are entitled
to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind whatsoever.” Cal. Civ. Code § 51(b). California courts
have interpreted the term “business establishment” in the
“broadest sense reasonably possible,” see Burks v. Poppy
Constr. Co., 57 Cal. 2d 463, 468 (1962), and hospitals such
as Riverside meet the definition. O’Connor v. Vill. Green
Owners Ass’n, 33 Cal. 3d 790, 796 (1983). Nevertheless, the
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1309
California Supreme Court has expressly held that employment
discrimination claims are excluded from § 51’s protection.
Alcorn v. Anbro Eng’g, Inc., 2 Cal. 3d 493, 500 (1970); Rojo
v. Kliger, 52 Cal. 3d 65, 77 (1990). The court has explained
this exclusion by noting that the Unruh Act was designed to
prohibit discrimination by business establishments “in the
course of furnishing goods, services, or facilities” to its “cli-
ents, patrons, or customers,” but does not extend to claims for
employment discrimination because other California statutes
are specifically tailored to provide relief for such conduct,
most notably the FEHA, which was passed by the California
Legislature in the very same session as the Unruh Act. Alcorn,
2 Cal. 3d at 500.
[9] Twenty-six years later in Strother v. Southern Califor-
nia Permanente Medical Group, 79 F.3d 859 (9th Cir. 1996),
we interpreted the scope of liability available under § 51 in
light of Alcorn and subsequent California cases and concluded
that those precedents established the rule that relief under § 51
was available when the plaintiff was in a relationship with the
offending business establishment “similar to that of the cus-
tomer in the customer-proprietor relationship which the Act
and its predecessors have most commonly covered.”2 Id. at
874.
2
In Strother, we acknowledged that California courts have allowed par-
ties who were “not ‘clients, patrons, or customers,’ in the traditional
sense” to bring claims under § 51. Id. at 873. Nevertheless, we determined
that the plaintiffs in each of these cases stood in a position with the defen-
dant similar to that of a customer in the “customer-proprietor relationship”
the Unruh Act was designed to protect. Id. at 873-74 (citing O’Connor, 33
Cal. 3d at 796 (holding that condominium owners could bring § 51 claims
against their condominium owners’ association); Isbister v. Boys’ Club of
Santa Cruz, Inc., 40 Cal. 3d. 72, 81 (1985) (holding that female children
excluded from membership in the Boys’ Club could bring claims against
the organization); Jackson v. Superior Court, 30 Cal. App. 4th 936, 941
(1994) (holding that an African-American investment advisor who accom-
panied two clients into a bank could assert a § 51 claim alleging discrimi-
nation against the bank even though his clients were the actual customers
of the bank); Rotary Club of Duarte v. Bd. of Dirs., 178 Cal. App. 3d
1035, 1059 (1987) (holding that a local chapter of the Rotary Club could
challenge the National Rotary Club’s “male-only” policy under § 51)).
1310 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
2
[10] Applying these precedents, the district court dismissed
Johnson’s § 51 claims against the defendants, reasoning that
his allegations amounted to employment discrimination
claims excluded from the Unruh Act’s protection. One month
later, however, the California Court of Appeal’s decision in
Payne v. Anaheim Memorial Hospital, 130 Cal. App. 4th 729
(2005), became final. In that case, the Third Division of the
Court of Appeal held that a physician could assert a § 51
claim against the hospital where he treated patients because
that physician did not have the type of employment relation-
ship with the hospital which foreclosed § 51 relief. Id. at 748-
49. Johnson argues that Payne has changed the applicable
state law and requires us to reverse the district court’s dis-
missal of his claims.
In reviewing the district court’s judgment, we must apply
state law as it is presently defined, even if state law has been
altered subsequent to the district court’s decision. Vandenbark
v. Owens-Illinois Glass Co., 311 U.S. 538, 541 (1941); Nel-
son v. Brunswick Corp., 503 F.2d 376, 381-82 (9th Cir. 1974).
In interpreting state law, we are bound to follow the decisions
of the state’s highest court. Hewitt v. Joyner, 940 F.2d 1561,
1565 (9th Cir. 1991). When the state’s highest court has not
spoken on an issue, we must determine what result the court
would reach if we were standing in its shoes by examining
“state appellate court opinions, statutes and treatises.” Id. In
undertaking this task, “the California Court of Appeal’s
announcement of a rule of law ‘is a datum for ascertaining
state law’ ” which we may not omit unless we are “ ‘con-
vinced by other persuasive data that the highest court of the
state would decide otherwise.’ ” Hangarter v. Provident Life
& Accident Ins. Co., 373 F.3d 998, 1012-13 (9th Cir. 2004)
(quoting Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988))
(internal quotation marks omitted).
Accordingly, we must first determine whether Payne’s
holding applies to the facts of this case. If we answer that
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1311
question in the affirmative, we must next determine whether
there is any persuasive evidence to suggest that the California
Supreme Court would have decided Payne differently, such
that a contrary result would be warranted here.
3
Several factual distinctions between Johnson’s case and
Payne are readily apparent. First, Johnson’s relationship with
Riverside differed from Payne’s relationship with his hospital
in the material respect that Johnson was compensated while
Payne was not. In finding Payne’s claims against his hospital
cognizable under § 51, the court in Payne explained, “Payne
does not work for the hospital, and has no obligation to treat
his patients there as opposed to any other hospital. Anaheim
Memorial does not compensate Payne for his medical ser-
vices, nor does it exercise any direct control over the manner
in which he practices. Instead, the hospital merely provides a
facility which a qualified physician may access in connection
with providing medical care to his patients.” Payne, 130 Cal.
App. 4th at 748. Riverside, on the other hand, paid Johnson
$250 per month to be on call in its emergency room and also
compensated him for each trauma patient he treated in an
amount not to exceed $10,000 per month.
Second, although Johnson’s professional services agree-
ment referred to him as a “contractor,” Riverside retained
control over all material aspects of his activities at the hospi-
tal. While the parties’ affiliation did not contain every compo-
nent of the traditional employer-employee relationship (most
notably, Riverside was not required to pay Social Security
taxes for Johnson or provide him with retirement benefits),
Riverside determined the shifts Johnson was responsible to
work, the nurses who would be assigned to work with him,
and the credentials it would be necessary for Johnson to dis-
play when inside the hospital. Riverside also required Johnson
to remain a member in good standing on the Medical Staff.
1312 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
Thus, we find Johnson’s relationship with Riverside distin-
guishable from the relationship described in Payne. Indeed,
Johnson’s complaint is based solely on allegations of work-
place discrimination, not discrimination in the provision of
“goods, services, or facilities” prohibited by § 51. On the
other hand, we find it quite similar to the relationship we held
insufficient to state a § 51 claim in Strother. In that case we
determined that a physician could not bring a claim under
§ 51 against the medical group in which she was a partner
because her relationship with the group was more akin to that
of an employee than that of a “client, patron, or customer”
§ 51 was designed to protect. Strother, 79 F.3d at 863.
Although the plaintiff asserted that her relationship with the
medical group entitled her to many benefits, such as “the use
of certain medical facilities, medical supplies . . . and other
goods, management courses, and a variety of privileges,
advantages, and services,” we concluded that such benefits
were no different than those that would be received by a phy-
sician employed by the medical group, and thus determined
that regardless of whether the plaintiff was a bona fide partner
of the group or an employee, because her relationship with the
group was analogous to that of an employee, California law
precluded her from seeking relief under § 51. Id. at 874-75.
[11] We continue to follow our decision in Strother and
conclude that Johnson’s § 51 claims are foreclosed by the fact
that his relationship with Riverside was materially indistin-
guishable from that of an employee. We find nothing in the
California Court of Appeal’s holding in Payne to counsel
against such a decision because the hospital in that case nei-
ther compensated the plaintiff nor controlled the manner of
his practice to the degree Riverside does here. Consequently,
it is unnecessary for us to decide whether the California
Supreme Court would have decided Payne differently. Cali-
fornia law continues to require a plaintiff asserting a claim
under § 51 to demonstrate that his relationship with the
offending organization was “similar to that of the customer in
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1313
the customer-proprietor relationship.” Id. at 874. Johnson has
made no such demonstration.
B
[12] Johnson has also asserted claims against the defen-
dants under California Civil Code § 51.5. Section 51.5 pro-
vides in relevant part:
No business establishment of any kind whatsoever
shall discriminate against, boycott or blacklist, refuse
to buy from, contract with, sell to, or trade with any
person in this state on account of any characteristics
listed or defined in subdivision (b) . . . of Section 51
....
Cal. Civ. Code § 51.5(a). In Strother we interpreted § 51.5 as
a mere extension of the Unruh Act. 79 F.3d at 875 (citing
Roth v. Rhodes, 25 Cal. App. 4th 530, 537 (1994)). Explain-
ing that § 51.5, like § 51, is aimed only at discrimination in
“relationships similar to the proprietor/customer relationship,”
we held that § 51.5 required the plaintiff to make the same
showing. Id. We see no reason to abandon that determination
here. Thus, we conclude that a plaintiff asserting claims under
§ 51.5 must demonstrate that he stands in a relationship with
the offending business establishment similar to that of a cus-
tomer in a customer-proprietor relationship. As explained
above, Johnson has failed to do so here. Accordingly, we con-
clude that his claims under § 51.5 must meet the same fate as
his claims under § 51.
IV
[13] Finally, we must determine whether the district court
erred in dismissing Johnson’s FEHA claims as barred by the
statute of limitations. Under California law, a plaintiff who
intends to assert a FEHA claim must first file a complaint
with the California DFEH, Cal. Gov’t. Code § 12960, and
1314 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
then must file the claims within one year after the DFEH
issues a right-to-sue letter for the defendants listed in the com-
plaint, id. § 12965(b). Johnson received a right-to-sue letter
from the DFEH on September 30, 2002 and timely filed an
action in California state court on September 5, 2003. Never-
theless, he voluntarily dismissed that action on October 16,
2003 and then waited until December 2, 2003, 64 days after
the limitations period expired, to file this action in federal
court. Johnson contends that his timely state court filing satis-
fies the statute of limitations under theories of equitable
estoppel and equitable tolling. We disagree.
[14] Under California law, equitable tolling will be war-
ranted where the defendants have induced the plaintiff to
delay filing until after the statute of limitations has run. See
Mills v. Forestex Co., 108 Cal. App. 4th 625, 652 (2003)
(citation omitted). We discern nothing in the record to suggest
that the defendants’ conduct caused Johnson to voluntarily
dismiss his state court action or wait an additional 47 days
before filing this action in federal court.
[15] In addition, California courts have concluded that
absent express statutory language, a plaintiff’s voluntary dis-
missal will not entitle him to toll the statute of limitations. See
Wood v. Elling Corp., 20 Cal. 3d 353, 359 (1977); Thomas v.
Gilliland, 95 Cal. App. 4th 427, 433 (2002). Thus, Johnson’s
voluntary dismissal of his state court action is not an event to
which equitable tolling applies.3
3
Even if Johnson could demonstrate that he was entitled to equitable
tolling, he would not be entitled to toll the period necessary to render his
FEHA claim timely. The effect of equitable tolling is that “the limitations
period stops running during the tolling event, and begins to run again only
when the tolling event has concluded. As a consequence, the tolled inter-
val . . . is tacked onto the end of the limitations period, thus extending the
deadline for suit by the entire length of time during which the tolling event
previously occurred.” Lantzy v. Centex Homes, 31 Cal. 4th 363, 370-71
(2003) (emphasis omitted).
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 1315
V
Based on the foregoing, the district court’s dismissal of
Johnson’s claims against the defendants under § 1981 and
under California Civil Code §§ 51 and 51.5 for failure to state
a claim upon which relief can be granted and the district
court’s dismissal of Johnson’s FEHA claims for failure to
comply with the statute of limitations are
AFFIRMED.
Johnson filed his state action on September 5, 2003, 25 days before the
statute of limitations period expired. He voluntarily dismissed the state
action 41 days later, on October 16, 2003. Consequently, if equitable toll-
ing applied, Johnson would have been entitled to file his claims in federal
court within 41 days of his voluntary dismissal. Johnson delayed filing
until December 2, 2003, however, 47 days after his voluntary dismissal,
and 6 days after the maximum tolling period would have expired.