Ryan v. County of Los Angeles CA2/3 ( 2022 )

Filed 12/5/22 Ryan v. County of Los Angeles CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
TIMOTHY RYAN, B309818
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC606535)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, William A. MacLaughlin, Judge (Ret.).
Appeal is dismissed as moot.
Green Broillet & Wheeler; Mark T. Quigley and Aaron L.
Osten; Esner, Chang & Boyer, Stuart B. Esner and Kathleen J.
Becket, for Plaintiff and Appellant.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt,
John J. Manier and Linda B. Hurevitz; Law Offices of Hausman
& Sosa and Jeffrey M. Hausman, for Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Timothy Ryan, M.D., appeals from the trial
court’s denial of his motion for preliminary injunction.
Respondent County of Los Angeles (County) moves to dismiss
Dr. Ryan’s appeal, contending it is moot. We agree for the
reasons described below and grant the County’s motion to
dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Ryan sued the County alleging a cause of action under
Labor Code1 section 1102.5, subdivisions (b) and (c).2 According
1 All subsequent undesignated statutory references are to
the Labor Code.
2 Section 1102.5, subdivision (b), provides as follows: “An
employer, or any person acting on behalf of the employer, shall
not retaliate against an employee for disclosing information, or
because the employer believes that the employee disclosed or may
disclose information, to a government or law enforcement agency,
to a person with authority over the employee or another employee
who has the authority to investigate, discover, or correct the
violation or noncompliance, or for providing information to, or
testifying before, any public body conducting an investigation,
hearing, or inquiry, if the employee has reasonable cause to
believe that the information discloses a violation of state or
federal statute, or a violation of or noncompliance with a local,
2
to his first amended complaint, Dr. Ryan worked as a vascular
surgeon at Harbor-UCLA Medical Center (Harbor-UCLA) from
2013 to 2018. He alleged that as a result of reporting, and
refusing to engage in, illegal and unethical activity involving
Harbor-UCLA, the County retaliated against him, including
terminating his employment in October 2018.3
Dr. Ryan moved for temporary injunctive relief pursuant to
sections 1102.61 and 1102.62, seeking, among other things,
reinstatement, backpay, benefits, and attorney fees. Section
1102.61 provides that in “any civil action . . . pursuant to Section
1102.5, an employee may petition the superior court . . . for
appropriate temporary or preliminary injunctive relief as set
forth in Section 1102.62.” Section 1102.62, subdivision (a)
authorizes a trial court to grant “such temporary injunctive relief
as the court deems just and proper.” The statute further provides
that “[a]ppropriate injunctive relief shall be issued on a showing
that reasonable cause exists to believe a violation has occurred”
state, or federal rule or regulation, regardless of whether
disclosing the information is part of the employee's job duties.”
Section 1102.5, subdivision (c), provides as follows: “An
employer, or any person acting on behalf of the employer, shall
not retaliate against an employee for refusing to participate in an
activity that would result in a violation of state or federal statute,
or a violation of or noncompliance with a local, state, or federal
rule or regulation.”
3 In addition to his cause of action under section 1102.5,
Dr. Ryan alleged a cause of action under Government Code
section 12653. That latter cause of action is not relevant to this
appeal.
3
(§ 1102.62, subd. (c)), and that the “order authorizing temporary
injunctive relief shall remain in effect until [a] . . . judicial
determination . . . has been issued . . . or at a time certain set by
the court.”4 (§ 1102.62, subd. (d).) The trial court denied
Dr. Ryan’s motion for injunctive relief and Dr. Ryan appealed.
While that appeal was pending, the trial court granted the
County’s motion for summary adjudication on part of Dr. Ryan’s
4 Section 1102.62 provides as follows: “(a) Upon the filing of
the petition for injunctive relief, the petitioner shall cause notice
thereof to be served upon the person, and thereupon the court
shall have jurisdiction to grant such temporary injunctive relief
as the court deems just and proper. [¶] (b) In addition to any
harm resulting directly from the violation of Section 1102.5, the
court shall consider the chilling effect on other employees
asserting their rights under that section in determining whether
temporary injunctive relief is just and proper. [¶] (c)
Appropriate injunctive relief shall be issued on a showing that
reasonable cause exists to believe a violation has occurred.
[¶] (d) The order authorizing temporary injunctive relief shall
remain in effect until an administrative or judicial determination
or citation has been issued or until the completion of a review
pursuant to subdivision (b) of Section 98.74, whichever is longer,
or at a time certain set by the court. Thereafter, a preliminary or
permanent injunction may be issued if it is shown to be just and
proper. Any temporary injunctive relief shall not prohibit an
employer from disciplining or terminating an employee for
conduct that is unrelated to the claim of the retaliation. [¶] (e)
Notwithstanding Section 916 of the Code of Civil Procedure,
injunctive relief granted pursuant to this section shall not be
stayed pending appeal.”
4
section 1102.5 cause of action.5 After trial, a jury returned a
special verdict against Dr. Ryan on the remaining portion of that
cause of action. Dr. Ryan has appealed those rulings.
The County now moves to dismiss Dr. Ryan’s appeal from
the order denying his motion for injunctive relief.
DISCUSSION
“A case is moot when the decision of the reviewing court
‘can have no practical impact or provide the parties effectual
relief. [Citation.]’ ” (MHC Operating Limited Partnership v. City
of San Jose (2003) 106 Cal.App.4th 204, 214.) “ ‘When no
effective relief can be granted, an appeal is moot and will be
dismissed.’ ” (Ibid.)
The County relies primarily on MaJor v. Miraverde
Homeowners Assn. (1992) 7 Cal.App.4th 618 (MaJor), in
asserting the present appeal is moot. In MaJor, the plaintiff
sued a homeowners association contending that it prevented her
guests from using the recreational facilities of her condominium
project in violation of, inter alia, the Unruh Civil Rights Act. (Id.
at pp. 621–622.) The trial court denied the plaintiff’s motion for a
preliminary injunction, and she appealed. (Id. at p. 622.) While
plaintiff’s appeal was pending, the trial court sustained a
demurrer to her Unruh Civil Rights Act cause of action without
leave to amend. (Id. at p. 623.)
On appeal from the order denying plaintiff’s motion for
preliminary injunction, the Court of Appeal held that “[b]ecause
5 Dr. Ryan filed a writ petition with this court challenging
the trial court’s grant of summary adjudication. The court denied
the writ petition on August 26, 2021. (See Ryan v. Superior
Court (case No. B313556).)
5
the Unruh Civil Rights Act claim was her only basis for a
preliminary injunction, [the plaintiff’s] appeal from denial of an
injunction is now moot.” (MaJor, supra, 7 Cal.App.4th at p. 623.)
The court reasoned that “[a] preliminary injunction is an interim
remedy designed to maintain the status quo pending a decision
on the merits,” but is not “in itself, a cause of action.” (Ibid.)
“Thus, a cause of action must exist before injunctive relief may be
granted.” (Ibid.)
The court explained that an “appeal from an order denying
a preliminary injunction does not deprive the trial court of
jurisdiction to proceed to try the case on the merits,” and that if
“the court can try the case on the merits then a fortiori it can
determine the case has no merit by sustaining a demurrer
without leave to amend.” (MaJor, supra, 7 Cal.App.4th at
p. 623.) The court then concluded as follows: “In the present
case, the trial court having sustained a demurrer without leave to
amend to the only cause of action which might have supported a
preliminary injunction in favor of [the plaintiff], her appeal from
the denial of a preliminary injunction is moot.” (Ibid.) The court
emphasized that a plaintiff could avoid this result by
“request[ing] a stay of trial court proceedings while the appeal
from denial of the preliminary injunction is pending.” (Id. at
pp. 623–624.)
We agree with the County that, as in MaJor, Dr. Ryan’s
appeal from the order denying his motion for preliminary
injunction is moot due to the summary adjudication order6 and
6 In his opening brief, Dr. Ryan advised us that he had filed
a writ petition with this court challenging the trial court’s order
denying his disqualification motion pursuant to Code of Civil
6
the jury verdict, which together fully adjudicated the merits of
Dr. Ryan’s cause of action under section 1102.5. (See Agnew v.
City of Los Angeles (1958) 51 Cal.2d 1, 2 [because order denying
preliminary injunction “dealt solely with the right to preventive
relief pending final judgment and denied such relief, the entry of
judgment rendered the question of the right to interim relief
moot.”]; Korean American Legal Advocacy Foundation v. City of
Los Angeles (1994) 23 Cal.App.4th 376, 399 [because court
sustained demurrer to “the only causes of action which would
have supported a preliminary injunction in plaintiffs’ favor, their
appeal from the denial of a preliminary injunction is dismissed as
moot.”]; City of Oakland v. Superior Court (1982) 136 Cal.App.3d
565, 569 [“A preliminary injunction is a device to protect the
rights of litigants pending a final determination of the merits of
the action; it is but an adjunct to the action and its fate is hinged
to the main action.”].)
Dr. Ryan opposes the County’s motion to dismiss on several
grounds, but none is convincing. First, he contends that his
appeal is not moot because the “correctness of the trial court’s
order denying injunctive relief should be evaluated as of the time
it was made,” citing In re Zeth S. (2003) 31 Cal.4th 396, and In re
James V. (1979) 90 Cal.App.3d 300. These cases support the
principle of appellate review that “an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a
Procedure section 170.1. Based on his then-pending writ,
Dr. Ryan argued the summary adjudication ruling did not cause
this appeal to become moot because the “efficacy” of the summary
adjudication ruling “is still very much in question.” But the court
denied that writ petition on December 16, 2021. (See Ryan v.
Superior Court (case No. B315448).)
7
record of matters which were before the trial court for its
consideration.” (In re Zeth S., at p. 405; In re James V., at p. 304
[same].) However, neither case addresses the present
circumstance—an appeal from an order denying injunctive relief
where the underlying cause of action has thereafter been resolved
against the plaintiff—let alone calls into question the holding or
reasoning of MaJor. Indeed, as our Supreme Court recognized
regarding the same principle of appellate review described above,
although it “preserves an orderly system of appellate procedure
by preventing litigants from circumventing the normal sequence
of litigation,” “the rule is somewhat flexible; courts have not
hesitated to consider postjudgment events . . . when subsequent
events have caused issues to become moot.” (Reserve Insurance
Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.)
Next, Dr. Ryan contends that his appeal is not moot
because if the trial court had correctly granted his motion for
preliminary injunction, he would have been entitled to backpay
and attorney fees. According to Dr. Ryan, even though he
ultimately lost on the merits of his cause of action under section
1102.5, he might have been able to retain such backpay and
attorney fees through the conclusion of any appeal from the final
judgment. We are not persuaded. Even assuming backpay and
attorney fees were available forms of injunctive relief under
section 1102.62,7 Dr. Ryan fails to cite any authority supporting
7 The County disputes whether Dr. Ryan was eligible to
obtain backpay and attorney fees as part of injunctive relief
under section 1102.62. It contends that section 1102.62 “provides
only for ‘appropriate temporary or preliminary injunctive relief’—
not ‘make whole’ relief in general.” It further contends that the
attorney fee provision of section 1102.5 did not become effective
8
the conclusion that he would have been entitled to continued
injunctive relief, including retaining backpay and attorney fees,
after his cause of action under section 1102.5 was resolved
against him in the trial court. If anything, that conclusion is in
conflict with the principle that a preliminary injunction “is but an
adjunct to the action and its fate is hinged to the main action”
(City of Oakland v. Superior Court, supra, 136 Cal.App.3d at
p. 569, italics added), as well as section 1102.62, which provides
in relevant part that an “order authorizing temporary injunctive
relief shall remain in effect until . . . [a] judicial
determination . . . has been issued . . . .” (§ 1102.62, subd. (d),
italics added.) Notably, Dr. Ryan acknowledges in his reply brief
that “the injunction would not extend beyond the judgment in
this case . . . .”
Dr. Ryan further contends that requiring a plaintiff to
obtain a stay of trial court proceedings to preserve appellate
review of the denial of injunctive relief, as the court suggested in
MaJor, supra, 7 Cal.App.4th at pages 623–624, would undermine
the purpose of section 1102.62 to provide a plaintiff with “ready
access to injunctive relief” in connection with a cause of action
under section 1102.5. We disagree. Our application of well-
established caselaw regarding mootness does nothing to
undermine the standards applicable under section 1102.62 for
evaluating a plaintiff’s entitlement to temporary injunctive relief.
Moreover, we agree with the County that Dr. Ryan’s argument
incorrectly presupposes that he would be entitled to interim
until January 1, 2021, after Ryan sought injunctive relief. (See
§ 1102.5, subd. (j), added by Stats. 2020, ch. 344, § 2.) We need
not resolve either issue.
9
injunctive relief even though his cause of action under section
1102.5 was adjudicated against him.
Finally, in his reply brief Dr. Ryan contends that even if
this appeal is moot, we should still reach the merits of the appeal
because it presents an issue of important public interest and
there is a strong likelihood of recurrence of the underlying
controversy. (See Sturgell v. Department of Fish & Wildlife
(2019) 43 Cal.App.5th 35, 46 [“[U]nder the so-called public
interest exception to the mootness doctrine, . . . appellate courts
have discretion to decide a case that, although moot, poses an
issue of broad public interest that is likely to recur.”].) Dr. Ryan
focuses our attention on a release the County required him to
sign in connection with his application to renew his staff
privileges at Harbor-UCLA. He contends the release is unlawful
and that the County violated section 1102.5, subdivision (c), by
terminating him in retaliation for his refusal to sign the release.8
Dr. Ryan urges us to address the merits of his appeal because the
release, which purports to release the County and other releasees
from liability related to their evaluation of a physician’s
qualifications, presents an important matter of public interest.
He further contends that the controversy regarding the
lawfulness of the release is likely to recur because the same
release is presented “to all physicians desiring to stay employed”
at Harbor-UCLA.
8 The County argues that Dr. Ryan did not raise this
allegation in either his first amended complaint or his motion for
preliminary injunction and has therefore forfeited it. We need
not resolve that issue.
10
We decline to exercise our discretion to resolve the issues
presented in this moot appeal. As an initial matter, Dr. Ryan did
not raise the public interest exception to the mootness doctrine in
his opening brief or in his opposition to the County’s motion to
dismiss; he raised it for the first time in his reply brief. (See
Provost v. Regents of University of California (2011) 201
Cal.App.4th 1289, 1295 [“[W]e will not address arguments raised
for the first time in the reply brief.”].) We further note that
Dr. Ryan has appealed the order granting summary adjudication,
which appears to have addressed arguments regarding the
release that are like those Dr. Ryan raises here. Thus, to the
extent his present arguments concerning the release are similar
to those at issue in the summary adjudication order, Dr. Ryan
will be able to address them in his pending appeal.
11
DISPOSITION
We grant the County’s motion to dismiss. The appeal is
dismissed as moot. The County is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
RICHARDSON (ANNE K.), J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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