RG13684763

Sharon Laidley vs. CA Dept. of Corrections

Nature of Proceeding: Motion to File Fourth Amended Complaint

Filed By: Jones, Michael L.

Plaintiff’s motion for leave to file Fourth Amended Complaint is ruled on as follows.

Overview

This employment action was commenced on 6/21/2013 against defendant California Department of Corrections and Rehabilitations (“CDCR”). Trial is currently scheduled to begin on 10/15/2019.

CDCR recently filed a motion to dismiss for plaintiff’s failure to bring this matter to trial within five years. In advance of the motion’s original 7/22/2019 hearing date, this Court issued a tentative ruling denying CDCR’s motion on the ground that CDCR was not seeking to dismiss the action but rather just two of the five causes of action alleged in the Third Amended Complaint (“TAC”).

After receiving additional briefing on the matter, the Court on 8/19/2019 issued a Ruling on Submitted Matter (“ROSM”) which granted CDCR’s motion as to plaintiff’s first cause of action for retaliation under the Fair Employment and Housing Act (“FEHA”), noting that plaintiff had already voluntarily dismissed her fifth cause of action which also was the subject of CDCR’s motion. The 8/19/2019 ROSM first explained that the original tentative ruling erroneously concluded Code of Civil Procedure §583.310 provides only for the dismissal of an entire action before considering the statute’s application to the first cause of action for retaliation under the FEHA. With respect to the latter, the Court ultimately concluded that the retaliation claim related back to her original 6/21/2013 pleading and thus, it was subject to dismissal due to plaintiff’s failure to comply with the five year statute. The ROSM stated in pertinent part:

Plaintiff’s original pleading, filed on June 21, 2013, contained a fourth cause of action for unlawful retaliation in violation of FEHA. It alleged: “Respondents are unlawfully retaliating against Petitioner…by failing to return Petitioner to her former position performing nursing duties and by failing to compensate her for the wages and benefits she lost due to the withdrawn dismissal.” (Verified Petition for Writ of Mandate, Complaint for Retaliation and for Declaratory Relief, filed 6/21/13, at ¶ 62.) This cause of action states that CDCR was retaliating against Plaintiff for these protected activities: (1) opposing sexual harassment she experienced at the hands of her supervisor “that resulted in a favorable settlement for her,” (2) reporting that she was raped at Folsom State Prison on July 13, 2011, and (3) appealing to the State Personnel Board and fighting CDCR’s June 26, 2012 dismissal of her. (Id., ¶ 63.) It further stated, “Petitioner notified SPB and Respondent on August 31, 2012 that she would be raising unlawful retaliation as a defense in her appeal.” (Ibid.)

The first cause of action of Plaintiff’s TAC also alleges FEHA retaliation. Plaintiff’s TAC identifies the same protected activities preceded the retaliation as were contained in the original pleading:

The actions described demonstrate that Defendant unlawfully retaliated against Plaintiff. Specifically, Defendant’s actions are unlawful in that they are being taken because Plaintiff engaged in a number of protected activities, including: First, Plaintiff opposed

the sexual harassment she experienced at the hands of her supervisor and pursued a complaint against CDCR and her supervisor that result in a favorable settlement for her. Second, on July 13, 2011 and later, Plaintiff reported that she had been raped while at work. Third, on June 26, 2012, Plaintiff appealed Defendant’s unlawful dismissal of employment. Fourth, on August 31, 2012, Plaintiff noticed SPB and Defendant that she would be raising unlawful retaliation as a defense in her appeal.

(TAC, ¶ 44.)

Plaintiff’s retaliation claim does contain some facts beyond those set forth in the original complaint relating to the scope of the alleged retaliation. The cause of action alleges, “Beginning in August 2012 to about February 2015, Plaintiff made many attempts to get her job back. In response, Defendant put up as many walls as it could to prevent her from going back to work.” (TAC, ¶45.) The TAC further alleges that CDCR assigned Plaintiff to work at the Business Continuity Unit of California Correctional Health Services instead of returning her to work as a nurse. (TAC, ¶38.) She alleges that she reported to this job from July 2014 through February 2015. (TAC, ¶39.) “Plaintiff was given no appreciable job duties, and had little interaction with the staff.” (Ibid.) “This daily reminder that she was never going to be placed back into her RN job was grating on Plaintiff and caused her extreme emotional distress and mental suffering.” (Ibid.) As a result, Plaintiff alleges, she suffered a panic attack on December 4, 2014 and an emotional breakdown on February 13, 2015 that resulted in hospitalization. (TAC, ¶¶40-41.) Plaintiff alleges that she was released from medical care on February 21, 2015 and then placed on a medical demotion on March 25, 2015. (TAC, 41.) When she was not returned to work as of May 19, 2015, “she was effectively terminated.” (TAC, ¶41.)

A comparison of the original complaint thus shows that Plaintiff’s TAC alleges the same basic act of retaliation – CDCR’s refusal to allow her to return to her former position as a prison nurse – that she alleged in her original complaint.

She alleges that the retaliation is in response to the same protected activities that were identified in the original complaint. Plaintiff has added allegations that the refusal to return her to her chosen profession caused her emotional distress severe enough to lead to severe emotional problems, including hospitalization, and ultimately a medical demotion.

The retaliation claim relates back to the filing of the original complaint for several reasons. First, the FEHA retaliation claim in the TAC is not a “new cause[] of action.” (Tanguilig v. Neiman Marcus Group, supra, 22 Cal.App.5th at p.33.) This is true whether measured quantitatively or qualitatively.

Quantitatively measured, both the original complaint and the TAC contain one cause for FEHA retaliation. Although Plaintiff has added factual allegations relevant to retaliation in the successive iterations of her complaint, there is still only a single cause of action for FEHA retaliation. Plaintiff had proposed new statutory retaliation claims in her SAC. This Court filed a tentative ruling on Plaintiff’s motion for leave to file the SAC ruling that her new retaliation claims were barred because she had failed to present those claims to the Victims Compensation and Government Claims Board. (Tentative Ruling on Motion for

Leave to File Second Amended Complaint, 8/4/16, at p.11 [“[E]ven though CDCR is not immune from suit alleging violations of Health and Safety Code section 1278.5 and Labor Code section 6310, a prospective plaintiff must still present such claims to the Claims Board prior to filing suit. Because [plaintiff] Laidley fails to allege she did so, her two new retaliation claims are barred.”].) The parties then reached a stipulation to resolve the motion that the Court approved. (Stipulation & Order Re Plaintiff’s Motion for Leave to File a Second Amended Complaint, 8/19/16.)

Qualitatively, Plaintiff’s FEHA retaliation claim is only one cause of action. Under the primary rights theory followed in California, “‘one injury gives rise to only one claim for relief.’” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) “[A] ‘primary right’ is defined by ‘the plaintiff’s right to be free from the particular injury suffered.’” (Zakaryan v. The Men’s Wearhouse, Inc. (2019) 33 Cal.App.5th 659, 671, review granted 2019 Cal. LEXIS 5019 (July 10, 2019), quoting Crowley v. Katleman (1994) 8 Cal.4th 666, 682.) Here, the particular injury suffered is Plaintiff’s personal right to pursue her career as a nurse at CDCR.

Plaintiff’s retaliation claim in her TAC also “rests on the same general set of facts” as the retaliation claim filed in the original complaint, it involves the same injury, and it refers to the same instrumentality. (Tanguilig v. Neiman Marcus Group, supra, 22 Cal.App.5th at p.33.)

Dismissal of the retaliation claim in this case is also supported by the strong public policy supporting the expeditious disposition of litigation that is found in the five-year dismissal statute. (Bright v. American Termite Control Co. (1990) 220 Cal.App.3d 1464, 1470 [dismissing complaint in intervention filed by insurance company that stated “essentially the same” causes of action as the original complaint filed by the insured party].)

Moving Papers. Plaintiff now moves to file a Fourth Amended Complaint which includes a “new” first cause of action for retaliation under the FEHA. According to the moving papers, the Court’s 8/19/2019 ROSM “in part, implied that a claim which predated the 5-year statute can avoid dismissal if new facts are presented which assert a new injury.” (Memo. P&A, p.1:28-p.2:1.) Thus, plaintiff now seeks to add new allegations to Paragraphs 44 and 45 which “describe the…adverse employment actions, and the unique resulting harm: In retaliation for Plaintiff’s assertion of her rights under the FEAH [sic], Defendant took the following adverse employment actions, among others: First, Defendant demoted Plaintiff. Second, Defendant placed Plaintiff on administrative leave of absence from March 2013 to July 2014. These actions, all by themselves, harmed Plaintiff by creating a vacuum in Plaintiff’s career advancement, and by causing Plaintiff emotional distress apart from that experienced when she lost her job.” (Not. of Mot., p.2:20-27.)

More specifically, the proposed amendments will add to the end of Paragraph 44 of the previously dismissed retaliation claim, “Fifth, from June 2012 until her effective termination on about March 25, 2015, Plaintiff continued to seek accommodation and a return to work, continued to engage Defendant in the interactive process, and continued to complain that Defendant failed to do its duty under the FEHA.” Additionally, Paragraph 45 of the proposed Fourth Amended Complaint will allege:

In retaliation for these things, Defendant took the following adverse employment actions, among others: First, Defendant demoted Plaintiff from her more-prestigious nursing job to an administrative job. Defendant’s action caused separate harm to Plaintiff, specifically, that she was precluded from practicing her profession, thus denied overtime, promotion, and advancement. (See Exhibit E.) Second, Defendant placed Plaintiff on administrative leave of absence from March 2013 to July 2014. This unwanted leave of absence, all by itself, harmed Plaintiff by creating a vacuum in Plaintiffs career advancement, and by causing Plaintiff emotional distress apart from that experienced when she lost her job.

Curiously, plaintiff contends “None of these facts are [sic] new, and none of them require [sic] additional discovery” as these “facts were either listed in the TAC or were attached via official DFEH complaints.” (Memo. P&A, p.3:5-6.) The moving papers also suggest that the Court, in granting dismissal of the retaliation in the 8/19/2019 ROSM, erred by failing to consider all of the allegations in the TAC. (Memo. P&A, p.2:25-28.)

Opposition. CDCR opposes, arguing that the present motion must be denied because it improperly seeks to reassert the same retaliation claim which was just dismissed under the five-year mandatory dismissal statute. CDCR insists the proposed amendment consists of “a scant five ‘new’ sentences that re-package the same allegations from the dismissed FEHA retaliation claim into a proposed ‘new’ FEHA retaliation claim” while simultaneously admitting none of these facts is “new” the case, having all been alleged in the TAC. Additionally, the opposition maintains that the proposed “new” retaliation claim, just like the dismissed one, “relates back” to the filing of Plaintiff’s initial retaliation claim in 2013 and is therefore barred by the same five-year statute as it clearly “alleges the same basic facts” and involves the same primary right in failing to return her to a nurse position. Since the motion proposes no new causes of action premised on any new facts, it should be denied as little more than an improper attempt to obtain reconsideration of the 8/19/2019 ROSM. Finally, plaintiff’s attempt to add a fifth protected activity (i.e., her demands for further accommodations during the interactive process) fails as a matter of law since prior to 2016, demands for accommodation were not considered “protected” activity for purposes of a FEHA retaliation claim.

Analysis

The motion to amend is DENIED because the proposed new retaliation claim is not substantively different from the recently-dismissed retaliation claim, “relates back” to allegations found in plaintiff’s original 2013 pleading and is therefore subject to mandatory dismissal for the reasons already explained in the 8/19/2019 ROSM. Moreover, to the extent this motion suggests the 8/19/2019 ROSM was erroneous because the Court did not consider all of the allegations in the TAC, it improperly attempts to obtain reconsideration without complying with the requirements of Code of Civil Procedure §1008. Finally, assuming arguendo that the proposed amendment could be construed as asserting a genuinely new claim which was not previously encompassed by the various iterations of the complaint, the Court would still exercise its discretion by denying the motion because plaintiff has unreasonably delayed in seeking leave to amend and CDCR would be denied an opportunity to challenge the amendment and/or conduct any discovery prior to the scheduled commencement of trial on 10/15/2019.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)