Behazin v. Dignity Health CA2/2 ( 2020 )

Filed 9/2/20 Behazin v. Dignity Health CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
NEGIN BEHAZIN, B293805
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. NC060566)
v.
DIGNITY HEALTH, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Ramona G. See, Judge. Affirmed.
Bohm Law Group and Lawrence A. Bohm, Bradley J.
Mancuso, and Lindsay L. Bowden; Esner, Chang & Boyer and
Stuart B. Esner for Plaintiff and Appellant.
Ballard Rosenberg Golper & Savitt, Linda Miller Savitt,
Eric C. Schwettmann, and John J. Manier for Defendant and
Respondent.
Negin Behazin (appellant) appeals from a final judgment
entered after the trial court granted summary judgment in favor
of Dignity Health, Inc. (respondent) on appellant’s claims against
respondent. At issue in appellant’s first amended complaint
(FAC) against respondent were only two causes of action: (1)
violation of Labor Code sections 98.6 and 1102.5; and (2) adverse
action in violation of public policy. The trial court granted
summary judgment on these two causes of action on the grounds
that appellant did not engage in any activity protected by Labor
Code sections 98.6 or 1102.5; and there is no tort cause of action
for nonrenewal of a fixed term employment contract such as
appellant’s. We find no error and affirm the judgment.
FACTUAL BACKGROUND1
Appellant’s educational background
Appellant received her medical education at Islamic Azad
University in Tehran, Iran, and thereafter practiced medicine in
Iran for five years. In March 2003, she obtained an entry visa
into the United States and entered a Ph.D. program in
pharmacology at Northeastern University. She left that program
after receiving her master’s degree in 2005. She was then
____________________________________________________________
1 Because this matter comes to us after summary judgment
proceedings, only uncontested facts are relevant. We note that
the parties disagree as to the interpretation of many of the facts
concerning appellant’s background. Appellant objects that
respondent’s characterization of appellant as an individual
lacking in both medical and social skills is overly one-sided.
Respondents, on the other hand, argue appellant made untrue
statements on her application for admission and encountered
problems with her performance and her interpersonal skills while
employed with respondent. Due to the conflicting depictions of
appellant’s character and skills, we limit our explanation of
appellant’s background.
2
engaged in medical research at two Boston hospitals for four
years.
Appellant entered a preliminary year residency program at
St. Mary’s Health Center in St. Louis, Missouri (SMHC) for the
2010-2011 academic year. Appellant received an overall
satisfactory evaluation for her post-graduate year at SMHC, but
she received several marginal evaluations for certain rotations.
On July 1, 2011, appellant began an advanced residency in
anesthesiology at the University of Missouri in Columbia,
Missouri, where she experienced difficulties, and received
unsatisfactory ratings for both her first and second six month
reviews. She received no academic credit for the year due to her
unsatisfactory rating.
Appellant’s position with respondent’s organization
St. Mary Medical Center in Long Beach, California
(SMMC), offered appellant a postgraduate year one position in
internal medicine. Appellant accepted, and signed a resident
employment agreement that offered a fixed one-year term from
June 18, 2013 to June 22, 2014, with no guarantee of renewal.
The contract provided, in part, that it “applies only to the stated
term hereof and does not imply any guarantee of a training
position or employment of any kind in subsequent years.” The
agreement also explained that if the resident’s agreement was
not going to be renewed, SMMC would “use its best efforts to
provide Resident with a written notice of intent not to renew no
later than four (4) months prior to the expiration of this
Agreement,” but, should the reasons for nonrenewal occur within
the last four months preceding the contract’s expiration,
“Hospital shall provide as much advance notice to Resident as is
reasonable under the circumstances.”
3
Internal medicine residents such as appellant who have
graduated from an international medical school must obtain a
California medical license by the end of their third year of
training, regardless of whether they received academic credit for
each year. Residents are required to begin the process of
obtaining a California medical license six months before the
applicable cut off date, so that any problems can be resolved in a
timely manner. In a letter dated January 17, 2014, the Medical
Board of California notified appellant that she needed to submit
several additional items to support her medical licensure
application, including a “signed and dated personal explanation”
of why she did not disclose her SMMC training for 2013-2014 on
her application summary.
There were various issues with appellant’s performance
and progress throughout her residency year at SMMC. In
February 2014, appellant’s faculty advisor, Sarah Strube, D.O.,
provided Dr. Chester Choi, the program director, with a list of 16
separate problems and ongoing issues she observed with
appellant’s performance. On March 18, 2014, in a meeting with
Dr. Strube, appellant faced criticism for her performance on her
February medical floor rotation. Dr. Strube gave appellant
marginal evaluations for the month of February. On March 29,
2014, Bettina Kehrle, M.D., met with appellant to discuss her
performance. The next day, Dr. Kehrle provided other
supervising doctors with a list of concerns she had about
appellant’s performance, as she did not believe appellant was
meeting the program’s standards as compared to her peers.
March 10, 2014 email
On March 10, 2014, appellant wrote an email to seven
individuals affiliated with the residency program including
4
Dr. Strube, five other doctors, and Maureen Lucey, the nursing
director of the ICU. The email was captioned “Questions on
transfusion strategies in GI bleed,” and included: “The reason I
am bringing this case to your attention is that in my opinion it is
related to patient safety, and I’ve noticed that there is no
consensus even among the House Staff and the attending
physicians at St. Mary on the management of GI bleeds.” The
email was viewed as a complaint about the ICU nurses, one of
whom pressed the code button out of concern that appellant was
not giving appropriate orders. Appellant specifically questioned
the judgment of a third-year resident in the email, which was
considered inappropriate outside of the peer review process.
The next day, Dr. Bahman Chavoshan, one of the email
recipients, sent a reply to appellant:
“I read your e-mail with a significant amount of
concern.
“While we encourage our house staff to be
involved in quality improvement projects, patient
safety assurance, there are proper venues for these
activities. An e-mail to a group of people with
various levels of responsibility is not one of those
avenues.
“The issues of physician practices, et cetera, fall
under various committees, including the medical staff
association. Openly discussing other physician
practices by name outside of a peer review process is
never appropriate.
“I know that Dr. Strube and you are planning
to meet next week to go over your most recent
evaluations. Dr. Choi and/or I will meet with you
afterwards.
5
“Let me also be frankly blunt and clear: the
issues of performance (including advancement and
disciplining), leave and other privileged information
about other house staff members cannot and shall not
be discussed.”2
Appellant’s response to Dr. Chavoshan was as follows:
“This is not about questioning another
physician’s performance. It is about being pressured
by ICU staff to give certain orders and be discredited,
if not doing so. I have learned from experience that if
I refuse to give a certain order, I will be bypassed to
the next level and the case is presented to the next
person in a way that the order is obtained. I am not
questioning [anyone] here. I am questioning the ICU
staff’s level of comfort with watchful waiting and
threshold based transfusion in GI bleed and I wanted
to start the discussion with the intensivists here (I
wish I could have included all the intensitists [sic] on
the email) to come up with a [framework] for ICU
staff for manageme[nt] of GI bleed.
“As for leave of absence, I am totally surprised
that an intern is on leave of absence fighting for his
life and is being ignored to this level by the
department. When I worked at Harvard, it was a
[routine] practice to let the colleagues know if
[someone] was on leave for any family emergency.
____________________________________________________________
2 The reference in Dr. Chavoshan’s e-mail to “leave and other
privileged information” pertained to appellant’s oral request for
the home address of an intern who was being treated for a life-
threatening illness, so that appellant and others could send the
intern a card and flower arrangement.
6
Department would send them flower arrangements
and an e-mail would inform staff that a card is
available to write or sign for that person in such and
such room and on such days, so people would go and
drop a note of sympathy for their counterpart. The
card would then go to that person with flowers via
the department. This is NOT a HIPPA [sic] violation
or invasion to anybody’s privacy. I think in this
department we are going way extreme in terms of
respecting privacy and we’re confusing respecting
privacy with ignoring. I am very sorry that you have
such ill impressions of my intentions in [everything] I
do and say.
“Negin
“LET ME BE BLUNTLY FRANK: WE WANT TO
SEND FLOWERS AND CARDS TO . . . . . IF THIS
STUPID DEPARTMENT CAN NOT [sic] ARRANGE
FOR IT TO HAPPEN, GIVE US HIS HOME
ADDRESS TO TAKE CARE OF IT BY
OURSELVES!”
One minute later, appellant sent a second reply to Dr.
Chavoshan, which stated in full:
“I AM NOT INTERESTED IN MEETING
WITH U [sic] BY THE WAY. SEND ME YOUR
ADVICE/QUESTIONS VIA EMAIL. [¶] NEGIN”
Three days after this e-mail exchange, appellant was called
to a mandatory meeting with SMMC’s chief medical officer,
Andrew Burg, M.D., and its human resources director, Robert
Bokern, to discuss appellant’s behavior in sending the emails. At
this meeting, appellant was informed that SMMC had decided
not to renew her contract. Dr. Burg also discussed the rules
7
under HIPAA, and there was a brief discussion of the incident
involving transfusions, which was reviewed with the nursing
committee. Contrary to appellant’s assertions, the committee
determined that the nurses had acted properly.
Appellant completes her one-year contract with a
satisfactory rating
In a March 2014 communication, Kevin Schunke at the
Medical Board, indicated to Dr. Chavoshan that the SMMC
program should expect an opening in the residency program in
July 2014. This exchange led Dr. Chavoshan to believe that
appellant would not receive her medical license before the start of
the next academic year.
Appellant was formally notified of SMMC’s decision not to
renew her employment after completion of her postgraduate year
one program by letter from Dr. Burg dated April 1, 2014.
Appellant was permitted however, to finish her year one contract
term and present a corrective action plan to the committee, to
potentially enable her to attain a final rating of satisfactory and
receive academic credit for the year. Appellant and Dr. Strube
developed a corrective plan for the remainder of appellant’s
contract term.
Appellant repeatedly asked Dr. Burg and Dr. Choi to
reconsider the decision not to renew her contract. June 22, 2014,
was appellant’s last day of work at SMMC. One day after her
residency officially ended, appellant met with Dr. Strube and an
administrative assistant to discuss the program’s decision not to
offer appellant another contract. On June 24, 2014, the manager
of academic affairs showed appellant the form filled out by
programs to communicate completion of a year of training to the
Medical Board of California. The form was completed and signed
8
by Dr. Choi with an attached letter of explanation to the Medical
Board. The letter advised that appellant had finished the year
with competencies but that she would not be moving on to a
second year, as it was anticipated that she would not have her
unrestricted California practice license by July 1, 2014, in time
for the start of the new clinical year.
On July 1, 2014, appellant forwarded Dr. Burg, Dr. Choi,
and Dr. Chavoshan an email indicating that she had received her
California medical license. Appellant pursued a grievance with
SMMC’s human resources office, which was denied on October 8,
2014.
PROCEDURAL HISTORY
Appellant filed a verified complaint for damages on April 1,
2016, which contained causes of action for (1) violation of Health
and Safety Code section 1278.5;3 (2) violation of Labor Code
____________________________________________________________
3 Health and Safety Code section 1278.5 “declares that it is
the public policy of the State of California to encourage patients,
nurses, members of the medical staff, and other health care
workers to notify government entities of suspected unsafe patient
care and conditions.” (Health & Saf. Code, § 1278.5, subd. (a).)
The statute further mandates that “[a] health facility shall not
discriminate or retaliate, in any manner, against a patient,
employee, member of the medical staff, or other health care
worker of the health facility” on the grounds that the employee
“[p]resented a grievance, complaint, or report to the facility” (§
1278.5, subd. (b)(1)(A)) or “[h]as initiated, participated, or
cooperated in an investigation . . . related to the quality of care,
services, or conditions at the facility” among other things.
(§ 1278.5, subd. (b)(1)(B).) Pursuant to subdivision (g), “[a]n
employee who has been discriminated against in employment
pursuant to this section shall be entitled to reinstatement,
reimbursement for lost wages and work benefits caused by the
9
sections 98.6 and 1102.5; (3) violation of Business and Professions
Code section 2056; (4) intentional interference with prospective
economic relations; and (5) adverse action in violation of public
policy. Respondent was named in all causes of action except the
fourth, while Drs. Burg, Choi, Strube, and Kehrle (individual
defendants) were named on the first, third, and fourth causes of
action. The trial court sustained the individual defendants’
demurrers to the first, third, and fourth causes of action without
leave to amend, dismissing them from the action.
The parties then filed a stipulation allowing appellant to
amend her complaint and file the FAC. The stipulation
confirmed that appellant agreed to amend her complaint based
on recent decisions in Shaw v. Superior Court (2017) 2 Cal. 5th
983 (Shaw) [holding there is no statutory right to a jury trial
under Health and Safety Code section 1278.5, subdivision (g)]
and Melamed v. Cedars-Sinai Medical Center (2017) 8
Cal. App. 5th 1271 [suggesting that a one-year statute of
limitations may be appropriate for a claim under Health and
Safety Code section 1278.5], review granted and transferred for
reconsideration on other grounds (Sept. 25, 2019, S245420).
Appellant agreed to dismiss her causes of action under Health
and Safety Code section 1278.5 and Business and Professions
Code section 2056, as well as her cause of action for intentional
interference with prospective economic relations.
The trial court approved the parties’ stipulation on August
23, 2017, and the FAC was deemed filed. In the FAC, appellant
acts of the employer, and the legal costs associated with pursuing
the case, or to any remedy deemed warranted by the court
pursuant to this chapter or any other applicable provision of
statutory or common law.”
10
alleged: (1) violation of Labor Code sections 98.6 and 1102.5; and
(2) adverse action in violation of public policy.
Respondent filed a motion for summary judgment or, in the
alternative, summary adjudication on September 8, 2017 (MSJ).
In its supporting memorandum, respondent argued that
appellant did not engage in any activity protected by Labor Code
sections 98.6 or 1102.5; that California law does not recognize a
common law cause of action based on nonrenewal of a fixed term
contract; that appellant had no evidence that respondent acted
with retaliatory animus, and that she could not overcome the
great deference that should be accorded to the residency
program’s academic and medical judgment. Respondent further
argued that appellant lacked clear and convincing evidence of the
requisite conduct to support her request for punitive damages.
Appellant filed her opposition papers nearly a year later, on
August 15, 2018. Appellant asserted that she was retaliated
against for her March 10, 2014 email set forth above. Appellant’s
opposition did not address respondent’s argument that California
law does not recognize a tort for wrongful nonrenewal of a fixed
term employment contract. Respondent filed a reply on August
24, 2018.
The motion was heard on August 29, 2018. On August 31,
2018, the trial court issued a minute order granting the motion.
The trial court ruled that appellant did not engage in any activity
protected by Labor Code sections 98.6 or 1102.5 because she did
not file a complaint or institute any proceeding, and failed to
identify any rule or regulation allegedly violated by respondent.
The trial court concluded there was no tort cause of action for
nonrenewal of a fixed term employment contract. The court held
11
that appellant’s request for punitive damages was moot for the
same reasons.
Respondent filed a notice of entry of judgment on
September 25, 2018. Appellant filed a notice of appeal on
November 9, 2018.
DISCUSSION
I. Applicable law and standard of review
The purpose of the summary judgment procedure is to
reveal whether “there is no triable issue as to any material fact.”
(Code Civ. Proc., § 437c, subd. (c).) An issue of material fact is
one which “‘warrants the time and cost of fact finding by trial.’”
(Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 162.) The trial
court’s role is to determine whether such issues of fact exist, not
to decide the merits of any such issues. (California Traditions,
Inc. v. Claremont Liability Ins. Co. (2011) 197 Cal. App. 4th 410,
416.) A triable issue of material fact exists if the evidence would
allow a reasonable trier of fact to find the underlying fact in favor
of the party opposing the motion in accordance with the
applicable standard of proof. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal. 4th 826, 850 (Aguilar).)
A defendant moving for summary judgment bears the
burden of persuasion that there is no triable issue of material fact
and he is entitled to judgment as a matter of law. (Aguilar,
supra, 25 Cal.4th at p. 850.) The defendant must show that one
or more elements of the cause of action cannot be established, or
that there is a complete defense to that cause of action. (Code
Civ. Proc., § 437c, subd. (p)(2).) A defendant may meet this
burden by showing that the claim cannot be established due to a
lack of evidence on an essential element of the claim. (Union
Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 590.)
12
Once the defendant meets this burden, the burden shifts to
the plaintiff to show that a triable issue of fact exists as to that
cause of action or defense. If the plaintiff is unable to show the
existence of a triable issue of material fact, summary judgment in
favor of the defendant is proper. (Union Bank v. Superior Court,
supra, 31 Cal.App.4th at p. 590.)
We review the trial court’s decision to grant the summary
judgment motion de novo, applying the same legal standard as
the trial court. (Nardizzi v. Harbor Chrysler Plymouth Sales, Inc.
(2006) 136 Cal. App. 4th 1409, 1414, citing Paz v. State of
California (2000) 22 Cal. 4th 550, 557.)
II. Labor Code sections 98.6 and 1102.5 (first cause of
action)
A. Appellant has abandoned any argument under
Labor Code section 98.6
Labor Code section 98.6, subdivision (a) provides, in
relevant part, that an employer “shall not discharge an employee
or in any manner discriminate, retaliate, or take adverse action
against” that employee based on any conduct delineated in this
chapter or if the employee has “filed a bona fide complaint or
claim or instituted or caused to be instituted any proceeding
under or relating to his or her rights that are under the
jurisdiction of the Labor Commissioner, made a written or oral
complaint that he or she is owed unpaid wages, or because the
employee has initiated any action or notice pursuant to Section
2699, or has testified or is about to testify in a proceeding
pursuant to that section, or because of the exercise by the
employee or applicant for employment on behalf of himself,
herself, or others of any rights afforded him or her.”
13
In its motion, respondent argued that appellant had not
engaged in any activity protected under Labor Code section 98.6.
Appellant’s opposition did not assert any arguments under
section 98.6. Neither her opening brief to this court, nor her
reply brief, contain any such argument either. Under these
circumstances, appellant has abandoned this cause of action, and
we do not further review the trial court decision on this claim.
(Schmidt v. Bank of America, N.A. (2014) 223 Cal. App. 4th 1489,
1513.)
B. Summary judgment was properly granted as to
appellant’s claim under Labor Code section 1102.5
Labor Code section 1102.5, subdivision (b), provides:
“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 a state or federal statute, or a
violation of or noncompliance with a local, state, or
federal rule or regulation, regardless of whether
disclosing the information is part of the employee’s
job duties.”
Labor Code section 1102.5, subdivision (c) prohibits
retaliation “against an employee for refusing to participate in an
activity that would result in a violation of a state or federal
14
statute, or a violation of or noncompliance with a local, state, or
federal rule or regulation.”
The FAC quoted both subdivision (b) and subdivision (c) of
Labor Code section 1102.5. Under subdivision (c), the employee
must specifically identify the activity in which she refused to
engage, and the specific statute, rule, or regulation that
purportedly would have been violated. (Nejadian v. County of
Los Angeles (2019) 40 Cal. App. 5th 703, 719 [cause of action under
Labor Code section 1102.5, subdivision (c) requires employee to
“identify what specific activity he or she refused to participate in
and what specific statute, rule, or regulation would be violated by
that activity”].) Although subdivision (b) requires only
“reasonable cause to believe” that there has been a violation of a
local, state, or federal rule or regulation, the employee is subject
to the same requirement to identify the specific law that the
employee believes has been violated. (Id. at pp. 718-719).
Appellant did not identify any law, rule, or regulation
which she thought had been violated or that she had been asked
to violate. Instead, she made vague assertions that her
complaints concerned patient safety. Under the circumstances,
the trial court properly granted summary judgment.
For the first time on appeal, appellant raises some statutes
she claims supported a reasonable belief on the part of appellant
that respondent was violating the law. Appellant cites title 42
United States Code section 1320c-5, concerning Medicare, which
mandates health care providers assure that medical care be
provided “economically, and only when . . . medically necessary,”
be of “a quality which meets professionally recognized standards
of health care,” and be “supported by evidence of medical
15
necessity.”4 Appellant concedes that none of the statutes or
regulations raised here were raised in the trial court, but
suggests that we consider them as they concern a pure issue of
law. (Ryan v. Real Estate of the Pacific, Inc. (2019) 32
Cal. App. 5th 637, 644 [permitting new question of law presented
on appeal based on undisputed facts]; see also Nippon Credit
Bank v. 1333 North Cal. Boulevard (2001) 86 Cal. App. 4th 486,
500.)
Appellant presents no authority that she was not required
to specify at the trial court level a law that she reasonably
believed to have been broken, as to a claim under Labor Code
section 1102.5. Ross v. County of Riverside (2019) 36 Cal. App. 5th
580 (Ross) is distinguishable. In Ross, a former assistant district
attorney (DA) brought a claim for violation of Labor Code section
1102.5, among other claims, against the county. During his
employment, the assistant DA had disclosed to his superiors that
the district attorney’s office would not be able to prove a
particular case beyond a reasonable doubt; lacked probable cause
because the defendant’s confession was coerced; and that DNA
evidence exculpated the defendant. (Ross, at p. 592.) The
assistant DA recommended dismissing the case based on his
belief that prosecuting it would be a violation of the defendant’s
due process rights as well as a prosecutor’s ethical obligations
under state law. (Ibid.) Although he did not expressly state in
his disclosures to his superiors that he believed they would be
____________________________________________________________
4 Appellant also cites, for the first time in her opening brief,
other federal and state laws she claims are in accord, such as
Welfare and Institutions Code section 14059.5; California Code of
Regulations, title 22, section 41452 and title 2, section 60323,
subdivision (a).
16
violating these laws, his reasonable belief of such violations was
sufficient. (Ibid.) Ross does not suggest that a plaintiff asserting
a claim under Labor Code section 1102.5 need not assert the
reasonable belief of a specific violation at some point during the
trial court proceedings. Green v. Ralee Engineering Co. (1998) 19
Cal. 4th 66 (Green), similarly does not advance appellant’s
position. Green rejected a defendant’s claim that the plaintiff
failed to produce specific statutes at the trial court level where
“plaintiff had adequately identified several relevant FAA
regulations as part of his opposition to summary judgment.” (Id.
at p. 74.) In contrast, appellant has failed to identify any such
statutes during the summary judgment proceedings. Thus, her
present arguments must be deemed forfeited on appeal out of
fairness to respondent. (Ochoa v. Pacific Gas & Electric Co.
(1998) 61 Cal. App. 4th 1480, 1488, fn. 3 (Ochoa) [point not raised
in appellant’s opposition papers or during argument on summary
judgment motion below, and thus not considered below, is
“waived and will not be considered for the first time on appeal”].)
We note that even if we considered these provisions, cited
for the first time on appeal, appellant has failed to provide a
citation to the record suggesting that appellant reasonably
believed that respondent may have acted in a way that violated
any of these laws. Appellant does not suggest that she set forth
any facts below establishing a belief on her part that respondent
was violating these laws in any respect.
The trial court properly granted summary judgment as to
appellant’s first cause of action for violation of Labor Code
sections 98.6 and 1102.5.
17
III. Adverse action in violation of public policy (second
cause of action)
A. Summary judgment was properly granted
Appellant’s second cause of action is a tort claim based on
Tameny v. Atlantic Richfield Co. (1980) 27 Cal. 3d 167 (Tameny).
In Tameny, the Supreme Court held that when an employee’s
discharge violates fundamental principles of public policy, the
discharged employee may maintain a tort action against his or
her former employer and recover damages. (Id. at pp. 178-179.)5
In its motion, respondent argued that summary judgment
should be granted as to this cause of action because California
does not recognize a tort claim based on failure to renew a fixed-
term employment contract. California courts of appeal have
uniformly declined to recognize such a tort. (Touchstone
Television Productions v. Superior Court (2012) 208 Cal. App. 4th
676, 678 (Touchstone); Motevalli v. Los Angeles Unified School
Dist. (2004) 122 Cal. App. 4th 97, 102 (Motevalli); Daly v. Exxon
Corp. (1997) 55 Cal. App. 4th 39; 43 (Daly).) Appellant provided
no contrary argument in her opposition to the motion below.
Respondent accurately set forth the law, and appellant
forfeited any arguments not presented to the trial court. (Ochoa,
supra, 61 Cal.App.4th at p. 1488, fn. 3.) Thus, summary
judgment of this cause of action was properly granted.
____________________________________________________________
5 A Tameny cause of action is not strictly limited to wrongful
termination. The tort has been expanded to include lesser forms
of discipline, including wrongful demotion of existing employees.
(Garcia v. Rockwell Internat. Corp. (1986) 187 Cal. App. 3d 1556,
abrogated on other grounds in Gantt v. Sentry Insurance (1992) 1
Cal. 4th 1083, 1093; Scott v. Pacific Gas & Electric Co. (1995) 11
Cal. 4th 454, 473-474.)
18
B. The basis of the purported public policy violation
is not determinative
Because California courts have declined to recognize a tort
for failure to renew a fixed-term contract, the trial court properly
granted summary judgment on this cause of action, regardless of
the specific public policy violation allegedly underlying the claim.
Appellant forfeited any arguments to the contrary by failing to
raise them in the trial court. (Ochoa, supra, 61 Cal.App.4th at p.
1488, fn. 3.)
Nevertheless, appellant argues at length in her opening
brief that triable issues of fact remain as to whether respondent’s
act of declining to renew her employment contract violated
Health & Safety Code section 1278.5. We note that appellant’s
FAC did not allege a direct violation of section 1278.5. Instead, it
alleged a tort cause of action under Tameny. As a matter of law,
there is no tort cause of action for an employee based on the act of
declining to renew a fixed term employment contract.
(Touchstone, supra, 208 Cal.App.4th at p. 678; Motevalli supra,
122 Cal.App.4th at p. 102; Daly, supra, 55 Cal.App.4th at p. 43.)
Respondent, in moving for summary judgment, was required to
address only the issues raised in the FAC. (Soria v. Univision
Radio Los Angeles, Inc. (2016) 5 Cal. App. 5th 570, 585.) Because
appellant did not allege an actionable adverse action, the court
properly granted summary judgment on this tort cause of action.6
____________________________________________________________
6 Both parties address Williams v. Sacramento River Cats
Baseball Club, LLC (2019) 40 Cal. App. 5th 280, which was
published after appellant filed her opening brief in this appeal.
Williams involved a plaintiff’s accusation that an organization
failed to hire him based on his race. The Williams court
determined that the plaintiff could not maintain a Tameny tort
action against the organization due to the fact that he was a job
19
Shaw, supra, 2 Cal. 5th 983, does not suggest otherwise.
Shaw involved an underlying claim of wrongful termination. (Id.
at p. 988.) The plaintiff brought two causes of action, one based
on violation of Health and Safety Code section 1278.5,
subdivision (g), and a second cause of action for wrongful
termination in violation of public policy under Tameny. (Shaw,
at p. 988.) The Shaw court held that section 1278.5 “is not
reasonably understood, as a matter of statutory interpretation, to
afford a right to a jury trial.” (Shaw, at p. 999.) However, the
high court confirmed that “in an employee’s suit for retaliatory
termination, any conduct of the health care facility that would
support a cause of action under section 1278.5(g) would also
provide a basis for a tort action under Tameny. [Citations.]”
(Shaw, at p. 1004.) Shaw does not authorize a tort action for
failure to renew a fixed term employment contract.
Appellant’s attempt to distinguish Touchstone is
unconvincing. Appellant asserts that because Shaw was decided
after Touchstone, Shaw opened the door to a potential cause of
action for nonrenewal of a fixed-term contract because it
confirmed that although there is no right to a jury trial directly
under Health and Safety Code section 1278.5, a plaintiff can
applicant instead of an employee. The Williams court concluded:
“Because plaintiff was not an employee, defendant did not owe
him a duty; thus, plaintiff’s Tameny claim must fail.” (Williams,
at p. 288.) While the plaintiff was not without recourse because
he could proceed under various statutory and constitutional
theories, he could not maintain a tort action against the
organization. Williams supports the line of cases holding that
the wrongful failure to renew a fixed-term employment contract
does not support a tort action as the employer has not breached
any duty to the fixed-term employee. (Id. at pp. 287-288).
20
preserve such jury trial rights by framing the cause of action as a
Tameny cause of action. Appellant highlights the following
footnote in Shaw:
“In this case, plaintiff seeks recovery for
retaliatory termination and thus clearly may
maintain an action and obtain a jury trial under
Tameny. Because the issue is not before us, we have
no occasion to consider under what circumstances a
plaintiff in a section 1278.5(g) action who alleges
discriminatory treatment other than retaliatory
termination has a right to bring a Tameny action or
is otherwise entitled to a jury trial.”
(Shaw, supra, 2 Cal.5th at p. 1006, fn. 20.)
The footnote goes on to cite Daly, Motevalli, and Touchstone
for the well-settled proposition that a Tameny action cannot be
based on the failure to renew a fixed term employment contract.
(Shaw, supra, 2 Cal.5th at p. 1006, fn. 20.)
We find no authority in Shaw to expand the scope of
existing law regarding Tameny tort actions. Failure to renew a
fixed term employment contract is not actionable. Appellant has
not convinced this court that an exception to this settled law
should be carved out for purported violations of Health and
Safety Code section 1278.5.
C. The hybrid employee-student relationship at issue
does not change the result
Appellant argues that even if Touchstone, and the cases in
agreement with Touchstone, preclude a cause of action for failure
to renew an employment contract in violation of public policy, the
holding of these cases should not apply to the hybrid employee-
student relationship that existed between appellant and
21
respondent. While appellant has forfeited this argument by
declining to raise it below, we address it briefly. (Ochoa, supra,
61 Cal.App.4th at p. 1488, fn. 3.)
Appellant cites Ezekial v. Winkley (1977) 20 Cal. 3d 267,
which holds that a medical resident is entitled to fair procedure
prior to his dismissal from a residency program. She also cites
Stretten v. Wadsworth Veterans Hospital (9th Cir. 1976) 537 F.2d
361, 368, which emphasizes a medical resident’s property
interests, which are “to maintain his income, to complete the
residency phase of his medical education, and to protect his
professional reputation.” Neither case cited by appellant
involved a Tameny action. In fact, both cases pre-date Tameny.
Thus, neither case suggests that a medical resident has any
greater interest in renewal of a fixed-term contract than other
types of employees.
Appellant points to testimony in the record from her expert
witness, suggesting that the procedures implemented to carry out
the nonrenewal of appellant’s employment contract fell below the
standard operating procedures of reputable programs and that
the residency was a three-year program. However, the language
of the contract that appellant signed was unequivocal, and
appellant cites no law suggesting that we should interpret the
fixed-term contract in any other way. Appellant’s expert’s
opinion does not create a legal issue as to the length of the
contract term. We are not inclined to characterize the
nonrenewal as a termination, in the absence of legal authority
that it should be characterized as such.
Further, as respondent points out, appellant’s status as a
hybrid employee-student also arguably requires us to give
respondent’s nonrenewal decision more deference due to
22
respondent’s authority to evaluate appellant academically. (See,
e.g., Paulsen v. Golden Gate Univ. (1979) 25 Cal. 3d 803, 808
[recognizing a “widely accepted rule of judicial nonintervention
into the academic affairs of schools. [Citations.]”; Banks v.
Dominican College (1995) 35 Cal. App. 4th 1545, 1551 [academic
decisions of a private university must be upheld unless they
represent “‘substantial departure from accepted academic
norms”’].) Courts have recognized that in cases involving
academic dismissals, under this “highly deferential standard of
review, cases challenging academic dismissals often will
appropriately be resolved as a matter of law on summary
judgment.” (Ibid.) We need not decide whether respondent
abused its discretion in this matter. We merely note that while
appellant argues that respondent’s nonrenewal decision should
be scrutinized more in her case, there are alternative arguments
as to why it should be scrutinized less.
Appellant finished her one-year employment contract with
a satisfactory rating. No tort claim lies for the nonrenewal of this
contract. Appellant has not convinced us that any exceptions
apply in this case. Summary judgment was properly granted.
IV. Request for leave to amend
Appellant argues that we should reverse the trial court’s
grant of summary judgment and allow her to pursue a direct
cause of action under Health and Safety Code section 1278.5,
notwithstanding her previous decision to abandon that claim.7 In
____________________________________________________________
7 As set forth above, appellant’s initial complaint included a
cause of action under Health and Safety Code section 1278.5.
However, following demurrers and a stipulation between the
parties, appellant agreed to amend her complaint to allege the
23
support of this argument, appellant cites several cases, all of
which are distinguishable.
First, appellant cites a line of cases suggesting that the
label used to describe a cause of action should not be
determinative. However, none of these cases suggests that an
appellate court should permit a plaintiff to amend her complaint
to re-allege a previously dismissed cause of action after summary
judgment has been granted.8
Appellant argues that both Touchstone and Daly permitted
a plaintiff to proceed with a statutory claim even when the courts
concluded that the plaintiff could not proceed with a Tameny tort
claim. However, the two cases involved different procedural
backgrounds. In Daly, the plaintiff appealed after the trial court
sustained the defendants’ demurrer without leave to amend.
two causes of action discussed here. Thus, she voluntarily
dismissed the section 1278.5 cause of action.
8 Appellant cites the following cases: Bird, Marella, Boxer &
Wolpert v. Superior Court (2003) 106 Cal. App. 4th 419 [involving
a demurrer]; Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100
Cal. App. 4th 1017, 1034 [reversing summary judgment in favor of
insurer where scope of an insurer’s duty does not depend on the
labels given to the causes of action in the third party complaint
but on the facts alleged]; Ananda Church of Self-Realization v.
Mass. Bay Ins. Co. (2002) 95 Cal. App. 4th 1273, 1281-1282
[holding trial court properly sustained demurrer without leave to
amend in favor of insurer where insured were accused of stealing
documents that were in fact trash]; Bay Cities Paving & Grading
v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal. 4th 854, 857-858
[holding legal malpractice claim based on two omissions
constituted a single claim under policy]; Big Boy Drilling Corp. v.
Rankin (1931) 213 Cal. 646, 648-649 [holding trial court properly
allowed plaintiff to amend its complaint to conform to proof].)
24
While the Daly court confirmed that the plaintiff had no Tameny
claim because her contract was for a one-year term (Daly, supra,
55 Cal.App.4th at p. 45), the matter was remanded because the
trial court did not properly consider the plaintiff’s claim for
statutory damages under Labor Code section 6310. (Daly, at p.
43.) The case before us does not involve a demurrer, thus the
issue of leave to amend was not a key consideration in the
proceedings.
Touchstone was a writ proceeding following denial of the
defendant’s motion for directed verdict. (Touchstone, supra, 208
Cal.App.4th at p. 680.) The Court of Appeal issued a writ
ordering the trial court to enter a directed verdict in the
defendant’s favor on the plaintiff’s Tameny claim because “‘[t]he
employment contract was for a fixed term and . . . [u]nder a fixed-
term contract, the “employment is terminated by . . . [¶]
. . . [e]xpiration of its appointed term.” [Citation.]’ [Citations.]”
(Touchstone, at p. 681.) However, the plaintiff was permitted to
amend her complaint to allege a cause of action under Labor
Code section 6310. (Touchstone, at p. 684.) The matter was not
on appeal from an order of summary judgment, and the
defendant did not oppose giving the plaintiff an opportunity to
file an amended complaint. (Id. at p. 682, fn. 6.) Touchstone does
not suggest that a plaintiff should be permitted to amend a
complaint where, as here, the plaintiff voluntarily dismissed the
requested cause of action and did not raise it again throughout
summary judgment proceedings in which the defendant
prevailed.
25
Appellant has not convinced this court that she should be
permitted to amend her complaint at this stage of the litigation.
Summary judgment was properly granted.9
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs
of appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
____________________________________________________________
9 Because we affirm the trial court’s ruling on the merits, we
need not address the order disposing of appellant’s claim for
punitive damages.
26