Herron v. Feast and Fareway CA4/1 ( 2023 )

Filed 5/17/23 Herron v. Feast and Fareway CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DENISE M. HERRON, D079915
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00036537-CU-OR-CTL)
FEAST AND FAREWAY, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Carolyn M. Caietti, Judge. Affirmed.
Stephen M. Hogan for Plaintiff and Appellant.
Delmore Greene and Elizabeth A. Donavan for Defendant and
Respondent.
Denise Herron was ejected from a restaurant located at the Coronado
Municipal Golf Course. In response, she brought this action seeking a
declaration that the concession contract between the City of Coronado (City)
and the restaurant owner, Feast and Fareway, Inc. (Feast), is illegal and void
under the public trust doctrine, as codified in Public Resources Code section
6009.1. As amended, Herron’s operative complaint also asserts that Feast
violated the anti-retaliation provision of the Fair Employment and Housing
Act (FEHA) (Gov. Code, § 12940, subd. (h)) by ejecting her from the
restaurant in retaliation for reporting that she witnessed one Feast employee
inappropriately touching another. She appeals from the trial court’s
dismissal of these two claims against Feast after an order sustaining its
demurrer.
On de novo review, we conclude that Herron’s declaratory relief claim
fails to state facts sufficient to allege a breach of the public trust doctrine. As
to the FEHA retaliation claim, we conclude that even though the statute
covers retaliation against a non-employee, the trial court correctly ruled that
Herron failed to allege she had suffered an adverse employment action, as
required under Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049–
1055 (Yanowitz). Accordingly, we affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
Feast has a contract with the City to serve as a concessionaire
providing food and beverage services at the Coronado Municipal Golf Course.
Feast operates a restaurant in the golf course building, where it also hosts
private events and banquets.
Feast’s concession contract with the City states in relevant part: “The
City operates and maintains a public golf course open and available for use
by the general public . . . . Essential to the operations of the Golf Course, the
City has required and continues to require the services of a concessionaire to
operate the food and beverage amenities and concession serving the public at
the Golf Course. . . . The food and beverage services contemplated by this
Agreement are essential and complimentary to the operations of a public
municipal golf course and consistent with existing use of the Golf Course.”
2
Herron is a resident of Coronado, California. On January 8, 2020,
Feast barred her from the premises of the restaurant, including outdoor patio
areas not subject to its control.
In response, Herron filed a complaint and then a first amended
complaint against Feast and the City. She alleged claims for (1) declaratory
relief; (2) breach of the concession contract between the City and Feast; and
(3) violation of the Unruh Act (Civ. Code, § 51).
The declaratory relief claim set forth the history of the golf course and
alleged that the property was subject to the “Public Trust Doctrine” codified
in section 6009.1 of the Public Resources Code. Specifically, in 1923, the
State Lands Commission conveyed what was then submerged property under
Glorietta Bay to the City to be held and used in trust. After dredging the
bay, the City filled in the tidelands and constructed the golf course, which
opened in 1957. In 1962, the Legislature passed the San Diego Unified Port
District Act, which resulted in a conveyance of the property to the San Diego
Unified Port District (Port District). The Port District then leased the
property back to the City to be operated in trust for the benefit of the public.
The lease allows the property to be used as “a public golf course open and
available for use by the general public including driving range, pro shop, golf
cart rental, and snack bar including the sale of alcoholic beverages and for no
other purposes whatsoever.” The lease also states: “This restriction on use of
the leased premises absolutely prohibits a change in use. Lessee [the City]
further agrees not to construct or operate any hotel, motel, restaurant, or
cocktail lounge on the premises or in conjunction with said golf course.”
Herron’s declaratory relief claim alleged that the concession agreement
between Feast and the City was void and illegal because it violated the City’s
lease with the Port District and the public trust doctrine by allowing Feast to
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operate a restaurant as well as private events and banquets. Accordingly,
Herron requested a declaration that the concession agreement was void.
Feast filed a demurrer to the first amended complaint. Feast asserted
that the first cause of action for declaratory relief failed to state a claim
because Herron lacked standing; the second cause of action for breach of
contract failed to state a claim because Herron lacked standing to assert a
breach of the concession agreement between the City and Feast and failed to
allege any breach; and the third cause of action for violation of the Unruh Act
failed to state a claim because Herron did not allege discrimination or
discriminatory intent. In its papers, Feast did not address Herron’s
allegations regarding the public trust doctrine.
The trial court overruled Feast’s demurrer to the first cause of action
for declaratory relief, and sustained it without leave to amend the second
cause of action, but with leave to amend the third cause of action. The court
also granted Herron leave to amend to allege a fourth cause of action for sex
discrimination and retaliation for reporting sexual harassment.
With regard to the declaratory relief claim, the court ruled: “A
demurrer must dispose of an entire cause of action to be sustained. . . . Here,
defendants did not address the allegations in the first cause of action
regarding the Public Trust Doctrine, nor provide[] any legal authority
concerning the Public Trust Doctrine. . . . Thus, the entire cause of action
cannot be disposed of at this time.”
Herron then filed the second amended complaint at issue in this
appeal. She alleged the same declaratory relief claim without amendment;
she did not re-allege the breach of contract claim; she amended the Unruh
Act claim; and she alleged a new fourth claim for retaliation under the Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (j).) The
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new FEHA claim alleged that Herron was ejected from Feast’s premises in
retaliation for reporting sexual harassment. Specifically, Herron alleged that
she observed a male Feast employee sexually harassing a female employee by
inappropriately touching her; she reported the sexual harassment to Feast’s
manager; and Feast permanently ejected her from the premises in retaliation
for this report.
Feast filed another demurrer to the second amended complaint on the
following grounds: (1) the first cause of action failed to state a claim for
declaratory relief because Herron lacked standing and there had been no
violation of the public trust doctrine; (2) the third cause of action failed to
state an Unruh Act claim because Herron failed to allege specific facts
supporting her claim of gender discrimination; and (3) the fourth cause of
action failed to state a FEHA retaliation claim because no employment
relationship or equivalent existed between her and Feast.
The court sustained the demurrer without leave to amend the first and
fourth causes of action, but with leave to amend the third cause of action for
violation of the Unruh Act. As to the first cause of action for declaratory
relief, the court ruled: (1) to the extent Herron was seeking a declaration of
rights under the concession agreement, she lacked standing because she was
not a party or intended third-party beneficiary of the concession agreement;
(2) to the extent Herron was seeking a declaration of rights under the public
trust doctrine, the only proper defendants were the governmental entities
alleged to have violated the public trust, not Feast as a private party; and
(3) the second amended complaint did not state sufficient facts to allege an
actual controversy or how Feast violated or breached the public trust
doctrine, and plaintiff’s opposition did not provide any legal authority
supporting how Feast’s conduct violated the public trust doctrine.
5
As to the fourth cause of action for FEHA retaliation, the court ruled
that plaintiff had “not identified facts showing she had any employment
relationship with [Feast] or suffered any adverse employment action.”
Herron elected not to amend her third cause of action for violation of
the Unruh Act. Accordingly, the court entered judgment in Feast’s favor.
DISCUSSION
On appeal, Herron pursues only two of the theories of liability asserted
below: (1) declaratory relief for the alleged violation of the public trust
doctrine; and (2) FEHA retaliation. We begin with a procedural issue raised
by Herron, then address each of these substantive claims applying a de novo
standard of review. (Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th
1545, 1552 [de novo standard of review for demurrer rulings].)
A. Successive Demurrers
As she did below, Herron argues that the trial court lacked jurisdiction
to decide Feast’s second demurrer to the declaratory relief claim under Code
of Civil Procedure section 430.41, subdivision (b), which states: “A party
demurring to a pleading that has been amended after a demurrer to an
earlier version of the pleading was sustained shall not demur to any portion
of the amended complaint, cross-complaint, or answer on grounds that could
have been raised by demurrer to the earlier version of the complaint, cross-
complaint, or answer.”
We agree with Herron that Feast asserted a new ground for the
demurrer to the second amended complaint that could have been raised in its
earlier demurrer to the first amended complaint. Specifically, Feast asserted
that the first cause of action for declaratory relief failed to state a claim
because “there has been no violation of the Public Trust Doctrine.” Feast
could have asserted this ground in its earlier demurrer to the first amended
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complaint, because the allegations of this cause of action were identical in
both versions of the complaint. Because Feast did not assert this ground in
its demurrer to the first amended complaint, the trial court should not have
sustained the demurrer to the second amended complaint on this ground.
(Code Civ. Proc., § 430.41, subd. (b).)
However, we do not agree with Herron that this procedural error
mandates reversal per se. The trial court did not lack jurisdiction in the
fundamental sense because it had jurisdiction over the subject matter and
the parties. At most, the court acted in excess of jurisdiction by sustaining
the demurrer on this ground in violation of a procedural rule. (See People v.
American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 661 [“ ‘[W]hen a
statute authorizes [a] prescribed procedure, and the court acts contrary to the
authority thus conferred, it has exceeded its jurisdiction.’ ”].) “Ordinarily,
acts in excess of jurisdiction are subject to harmless error analysis, that is,
they support a reversal of the judgment only upon a showing of prejudice.”
(LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 871.)
The error here is not prejudicial because the trial court could have
elected to treat this portion of Feast’s demurrer as a motion for judgment on
the pleadings, or Feast could have filed a separate motion for judgment on
the pleadings, either of which would have resulted in the same outcome as
the demurrer. (Code Civ. Proc., § 438.) A motion for judgment on the
pleadings may be made on a ground not raised in an earlier demurrer.
(Id., subd. (g)(2).) “Like a demurrer, a motion for judgment on the pleadings
attacks defects disclosed on the face of the pleadings or by matters that may
be judicially noticed.” (Alameda County Waste Management Authority v.
Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1174.) “ ‘A motion
for judgment on the pleadings is equivalent to a demurrer and is governed by
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the same de novo standard of review.’ ” (People ex rel. Harris v. Pac Anchor
Transportation, Inc. (2014) 59 Cal.4th 772, 777.) Accordingly, we conclude
that this procedural error was not prejudicial.
B. Public Trust Doctrine
Herron asserts that her first action for declaratory relief states a valid
claim based on the public trust doctrine. As noted, the trial court sustained
Feast’s demurrer to this claim for several reasons, including that the second
amended complaint “does not state sufficient facts of an actual controversy or
how [Feast] violated or breached the public trust doctrine and [Herron]’s
opposition does not provide any legal authority supporting how, under these
facts, operation of [Feast]’s facility violates the public trust doctrine.” We
agree that Herron failed to allege facts sufficient to constitute a breach of the
public trust. Accordingly, it is unnecessary for us to address the other
grounds for the trial court’s ruling on this claim.
The State of California holds title to the navigable waterways and the
land beneath them within its borders as a trustee for the public. (Colberg,
Inc. v. State of California ex rel. Dept. Pub. Wks. (1967) 67 Cal.2d 408, 416.)
Tidelands are included in the public trust. (Graf v. San Diego Unified Port
Dist. (1992) 7 Cal.App.4th 1224, 1228 (Graf).) The public trust doctrine
continues to apply to tidelands even if they are no longer submerged due to
the placement of fill. (City of Long Beach v. Mansell (1970) 3 Cal.3d 462,
479.)
“Granted public trust lands remain subject to the supervision of the
state and the state retains its duty to protect the public interest in granted
public trust lands.” (Pub. Resources Code, § 6009.1, subd. (a).) “The state
acts both as the trustor and the representative of the beneficiaries, who are
all of the people of this state, with regard to public trust lands, and a grantee
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of public trust lands, including tidelands and submerged lands, acts as a
trustee, with the granted tidelands and submerged lands as the corpus of the
trust.” (Id., subd. (b).)
The state may delegate its authority to manage and control public use
of tidelands to a local agency. (Graf, supra, 7 Cal.App.4th at p. 1229.) Under
the San Diego Unified Port District Act of 1962 (Harb. & Nav. Code, Appx. I),
the State of California has delegated its authority to manage and control San
Diego Bay to the Port District. The statutory scheme declares it to be the
policy of the State to develop its harbors and ports “for multiple purpose use
for the benefit of the people.” (Id., § 2.) It gives the Port District the
authority to lease any property within its jurisdiction (id., § 25) and to
maintain or operate “facilities which are necessary or convenient for the
promotion and accommodation of commerce, navigation, fisheries, and
recreation, or their use in connection therewith . . . .” (id., § 57). It further
states that the tidelands conveyed to the Port District “may be used for
purposes in which there is a general statewide purpose” (id., § 87, subd. (a)),
including “small boat harbors, marinas, aquatic playgrounds, and similar
recreational facilities” and any facilities “necessary, or convenient for the
promotion and accommodation of any of those uses, including, but not limited
to, snack bars, cafes, restaurants, motels,” etc. (id., § 87, subd. (a)(6)).
Herron does not contend that the use of the tidelands as a public golf
course violates the public trust doctrine. Rather, her claim is that it violates
the public trust doctrine to allow a private restaurant to operate on the golf
course and hold private events there. As noted, however, the Legislature has
specifically authorized facilities such as “snack bars, cafes, [and] restaurants”
as necessary or convenient for the promotion and accommodation of
recreational uses on tidelands within the Port District’s jurisdiction.
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(Harb. & Nav. Code, Appx. I, § 87, subd. (a)(6).) The public trust doctrine
does not prohibit the leasing of tidelands property to a private party to
operate a restaurant incidental to a public recreational use. (Martin v. Smith
(1960) 184 Cal.App.2d 571, 573–574, 578 [lease of tidelands to private party
to construct yacht harbor with restaurants and cocktail lounges was
“consistent with the trust upon which said lands were conveyed to the city,
and with the requirements of commerce and navigation of said harbor”].)
Nor does the doctrine prohibit such a restaurant from holding private
events, so long as they do not interfere with the public trust uses. A public
agency “may authorize private uses of trust property that do not impair the
trust.” (San Francisco Baykeeper v. State Lands Com. (2018) 29 Cal.App.5th
562, 580 (San Francisco Baykeeper) [allowing commercial sand mining on
public trust lands—even though it was not a public trust use—because it
would not impair the trust]; see also Zack’s, Inc. v. City of Sausalito (2008)
165 Cal.App.4th 1163, 1176 [“Trust lands may be devoted to purposes
unrelated to the trust if such purposes are incidental to and accommodate
trust uses . . . .”].) Herron’s complaint fails to allege how the operation of the
restaurant or its private events interfere in any way with public trust uses.
Herron’s sole argument on this point is that the operation of a
restaurant on the golf course violates the public trust doctrine because the
City’s lease with the Port District states that the City may not “construct or
operate any hotel, motel, restaurant, or cocktail lounge on the premises or in
conjunction with said golf course.” But Herron cites no authority holding
that a violation of such a lease provision is ipso facto a breach of the public
trust. As noted by Feast, a New York trial court rejected a similar claim in
Saska v. Metropolitan Museum of Art (N.Y. Sup. Ct. 2016) 2016 WL 6682271[unreported disposition]. There, the plaintiffs argued that a public museum’s
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admission fee violated the public trust doctrine because it was prohibited by
the museum’s lease with the City of New York. The court concluded that this
argument was “an attempted end run” around the plaintiffs’ lack of standing
to assert a violation of the lease itself “by shoehorning those claims within
the rubric of the public trust doctrine.” (Id. at *8.)
Though not binding, we find this reasoning to be persuasive. Herron
does not dispute that that she lacks standing to assert a violation of the lease
between the Port District and the City because she is neither a party to the
lease nor an intended third-party beneficiary. Without any supporting
authority, she is attempting to recast this same claim as a breach of the
public trust. But the duties imposed on the State and its grantees by the
public trust doctrine are not defined by the lease agreement between the Port
District and the City. Herron cannot circumvent her lack of standing to
assert a violation of this lease agreement by dressing it up as a breach of the
public trust. Accordingly, we agree with the trial court that Herron failed to
allege a breach of the public trust.
Herron asserts that it is a factual question whether the defendants’
conduct violates the public trust. We disagree. (San Francisco Baykeeper,
supra, 29 Cal.App.5th at p. 577 [rejecting argument that “the question
whether an activity constitutes a public trust use is factual rather than
legal”].) Even if Herron were correct, however, that would not relieve her of
the burden of stating sufficient facts to allege a breach of the public trust.
She has failed to do so.
Herron also suggests that a demurrer cannot be used to adjudicate the
merits of her declaratory relief claim because the existence of a justiciable
dispute is all that is required to state such a claim. But “ ‘where the issue is
purely one of law, if the reviewing court agree[s] with the trial court’s
11
resolution of the issue it would be an idle act to reverse the judgment of
dismissal for a trial on the merits.’ ” (Hertzberg v. County of Plumas (2005)
133 Cal.App.4th 1, 24.) “ ‘In such cases the merits of the legal controversy
may be considered on an appeal from a judgment of dismissal following an
order sustaining a demurrer without leave to amend and the opinion of the
reviewing court will constitute a declaration of the legal rights and duties of
the parties concerning the matter in controversy.’ ” (Ibid.) To avoid a
pointless remand, we conclude as a matter of law that the facts Herron has
alleged do not amount to a breach of the public trust.1 This opinion therefore
serves as the declaration of rights Herron sought in her declaratory relief
claim.
C. FEHA Retaliation
The trial court sustained Feast’s demurrer to the FEHA retaliation
claim solely because Herron had not alleged that (1) she had any employment
relationship with Feast or (2) she had suffered any adverse employment
action. We agree as to the second point, but not the first.
Government Code section 12940, subdivision (h) makes it unlawful
“[f]or any employer, labor organization, employment agency, or person to
discharge, expel, or otherwise discriminate against any person because the
person has opposed any practices forbidden under this part or because the
person has filed a complaint, testified, or assisted in any proceeding under
this part.” (Italics added.)
1 Herron has also failed to explain what additional facts she could allege
to state a claim for breach of the public trust. (See Jocer Enterprises, Inc. v.
Price (2010) 183 Cal.App.4th 559, 572 [plaintiff on appeal bears burden to
show in what manner she can amend complaint and how it will change legal
effect of pleading].)
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By its terms, this statute prohibits the specified forms of retaliation or
discrimination against “any person.” The ordinary meaning of the word “any”
is “without limit and no matter what kind.” (Delaney v. Superior
Court (1990) 50 Cal.3d 785, 798.) “From the earliest days of statehood,” the
Supreme Court has “interpreted ‘any’ to be broad, general, and all
embracing.” (California State Auto. Asso. Inter-Insurance Bureau v.
Warwick (1976) 17 Cal.3d 190, 195, citing Davidson v. Dallas (1857) 8 Cal.
227, 239 [construing “any” to mean “every”].) Moreover, Government Code
section 12925, subdivision (d) broadly defines a “person” as follows: “ ‘Person’
includes one or more individuals, partnerships, associations, corporations,
limited liability companies, legal representatives, trustees, trustees in
bankruptcy, and receivers or other fiduciaries.” Thus, the plain language of
the statute is not limited to retaliation against employees. Rather, it more
broadly prohibits retaliation against any individual (or the specified non-
employee entities) for opposing a FEHA violation, filing a FEHA complaint,
or testifying or assisting in any FEHA proceeding.
We are bound by the plain language and definitions used by the
Legislature when it enacted the FEHA. (See MacIsaac v. Waste Management
Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1087.) By
forbidding retaliation against “any person” (Gov. Code, § 12940, subd. (h)),
and defining “person” to include “individuals” and non-employee entities
(Gov. Code, § 12925, subd. (d)), the Legislature made clear that the FEHA
anti-retaliation provision is not limited to retaliation against employees. The
Legislature certainly knew how to limit FEHA’s protections to employees or
applicants, as it did explicitly in other subdivisions of the same section. (See,
e.g., Gov. Code, § 12940, subds. (d), (f)(1), (m)(1), (p).) But it used the broader
“any person” language in the anti-retaliation provision. (Id., subd. (h).)
13
“When the Legislature uses materially different language in statutory
provisions addressing the same subject or related subjects, the normal
inference is that the Legislature intended a different meaning.” (People v.
Trevino (2001) 26 Cal.4th 237, 242.)
This result is further supported by Fitzsimons v. California Emergency
Physicians Medical Group (2012) 205 Cal.App.4th 1423 (Fitzsimons). The
plaintiff there was a partner in a medical partnership (CEP). She sued CEP
alleging that it retaliated against her for reports she made to her supervisors
about sexual harassment of female employees. At trial, a jury found that the
plaintiff was a partner of CEP, but not an employee. Based on this finding,
the trial court concluded that she lacked standing to assert a FEHA
retaliation claim. (Id. at pp. 1425–1426.)
The Court of Appeal reversed and concluded that “the FEHA does
support a claim for retaliation by a partner against her partnership for
opposing sexual harassment of an employee.” (Fitzsimons, supra, 205
Cal.App.4th at p. 1425.) The court reasoned: “While CEP is not in an
employment relationship with plaintiff, CEP is the employer of those persons
who are the victims of the alleged harassment that plaintiff reported, for
which she allegedly became the subject of CEP’s retaliation. The harassment
of CEP employees, if proven, is an unlawful practice for which CEP is liable
under [Government Code] section 12940, subdivision (j). And subdivision (h)
makes it an unlawful practice for CEP to retaliate against ‘any person’ for
opposing that harassment. Interpreting ‘person’ in the context of those
against whom the employer may not retaliate to include a partner gives the
word its normal meaning and is consistent with the definition in section
12925, subdivision (d).” (Fitzsimons, at p. 1429.)
14
The same reasoning applies here. Interpreting the word “person” to
include a customer or patron gives the word its normal meaning and is
consistent with the definition in Government Code section 12925, subdivision
(d). Although Herron herself was not an employee of Feast, Feast employed
the person who was the alleged victim of the sexual harassment reported by
Herron. To encourage compliance with FEHA, the Legislature evidently
decided to prohibit an employer from retaliating against any individual for
opposing a FEHA violation, including customers, patrons, vendors,
independent contractors, or others. This promotes the purpose of the statute
by encouraging anyone with knowledge of a FEHA violation to oppose it with
the protection of a legal prohibition against retaliation. We must apply the
statute as written to carry out the Legislature’s intent as expressed in its
plain language.
We nevertheless conclude that Herron’s complaint fails to state a
FEHA retaliation claim because she has not alleged that she suffered an
adverse employment action. (Yanowitz, supra, 36 Cal.4th at pp. 1049–1055.)
The statute makes it unlawful to “discharge, expel, or otherwise discriminate
against” the person opposing the FEHA violation. (Gov. Code, § 12940, subd.
(h).) In Yanowitz, the Supreme Court ruled that “the term ‘otherwise
discriminate’ in [Government Code] section 12940(h) should be interpreted to
refer to and encompass the same forms of adverse employment activity that
is actionable under section 12940(a) [the substantive anti-discrimination
provision].” (Yanowitz, at pp. 1050–1051.) Accordingly, the anti-retaliation
provision requires “an adverse employment action” that “must materially
15
affect the terms, conditions, or privileges of employment to be
actionable . . . .” (Id. at p. 1137.)2
Although Yanowitz involved alleged retaliation against an employee,
we see no basis to conclude that the statute offers broader protection to non-
employees. The operative language of the statute is the same for employees
and non-employees alike. Under Yanowitz, employees cannot sue for
retaliatory acts that do not affect the terms, conditions, or privileges of their
employment. The identical statutory language logically requires the same
result for non-employees. Moreover, it is possible for an employer to retaliate
against a non-employee in a manner resulting in an adverse employment
action. For example, an employer could cause a non-employee to be fired
from a job with another employer, which would constitute an adverse
employment action within the meaning of Yanowitz. (See Yanowitz, supra,36 Cal.4th at p. 1054 [defining adverse employment action to include “the
entire spectrum of employment actions that are reasonably likely to
adversely and materially affect an employee’s job performance or opportunity
for advancement in his or her career”]; see also Robinson v. Shell Oil Co.
(1997) 519 U.S. 337 [holding that employer’s postemployment retaliation
against former employee by giving a negative job reference to another
2 Under federal law, by contrast, Title VII’s anti-retaliation provision
“does not confine the actions and harms it forbids to those that are related to
employment or occur at the workplace.” (Burlington Northern & Santa Fe
Ry. Co. v. White (2006) 548 U.S. 53, 57.) The United States Supreme Court
has construed Title VII more broadly to forbid any retaliatory action that
would dissuade a reasonable person from making or supporting a charge of
discrimination. (Ibid.) But in Yanowitz (decided ten months before
Burlington Northern), our Supreme Court specifically rejected this deterrence
standard in construing the FEHA anti-retaliation provision. (Yanowitz,
supra, 36 Cal.4th at pp. 1050–1051.) We are bound by Yanowitz. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
16
prospective employer was actionable under Title VII].) We therefore conclude
that an adverse employment action is required, rather than some other form
of retaliation not affecting the terms, conditions, or privileges of employment.
(See also Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 885 [citing
Yanowitz for the proposition that “[t]o prove unlawful retaliation, [plaintiff]
must . . . show [defendant] subjected him to adverse employment actions for
impermissible reasons . . . .”].)
Herron argues that her mere expulsion from the restaurant was
sufficient because the statute says that an employer may not “discharge,
expel, or otherwise discriminate against” anyone for opposing a FEHA
violation. (Gov. Code, § 12940, subd. (h), italics added.) But the word “expel”
cannot be read in isolation; we must construe the words of the statute in
context and harmonize related provisions to the extent possible. (Lungren v.
Deukmejian (1988) 45 Cal.3d 727, 735.) It would make little sense for the
catch-all phrase “or otherwise discriminate against” to require an adverse
employment action under Yanowitz, supra, 36 Cal.4th at pages 1049–1055,
but not the other more specific forms of discrimination or retaliation listed
immediately preceding that phrase. We must construe the statute to avoid
such an incongruity and reconcile its related provisions. We therefore
conclude that the trial court properly sustained the demurrer to Herron’s
FEHA claim because she has not alleged an adverse employment action.3
3 We can imagine a scenario in which Feast’s expulsion of a non-
employee from the restaurant could result in an adverse employment action.
For example, if Feast permanently expelled someone who was regularly
employed by a caterer for events at that location, and the expulsion caused
her to lose her job with the catering company, it could constitute an adverse
employment action.
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DISPOSITION
The judgment of dismissal is affirmed. Respondent shall recover its
costs on appeal.
BUCHANAN, J.
WE CONCUR:
DATO, Acting P. J.
KELETY, J.
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