Filed 8/25/20 Dept. of Fair Employment and Housing v. Buchanan CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING,

Plaintiff and Respondent,

v.

GRISEZ BUCHANAN, LLC,

Defendant and Appellant.

A154965

(City & County of San Francisco

Super. Ct. No. CGC-17-557864)

Grisez Buchanan, LLC and Jerold Grisez (collectively Grisez) seek to appeal a “judgment of dismissal of cross-complaint after an order sustaining a demurrer” entered after the trial court sustained without leave to amend a demurrer to Grisez’s cross-complaint against the Department of Fair Employment and Housing (department) and its director, Kevin Kish. Grisez filed the cross-complaint after the department filed a complaint against Grisez alleging that it engaged in disability discrimination by failing to reasonably accommodate a tenant’s request to keep an emotional support animal. The cross-complaint asserts what Grisez characterizes as a cause of action under Government Code section 815.6, against a public entity for failure to perform a mandatory duty. Grisez alleges that the department breached the duty, imposed by regulation, to “gather during the course of [a precomplaint] investigation all relevant evidence necessary to determine whether an unlawful housing practice has occurred.” (2 Cal. Code Regs., § 10058(d).)

The department’s complaint against Grisez is still pending, however, so that under the one final judgment rule the “judgment of dismissal of cross-complaint” is not an appealable order. This court does have jurisdiction of the appeal from the dismissal of Kish, who is not a party to the complaint. Therefore, we shall dismiss the appeal as to the claim against the department and affirm the dismissal of Kish.

Factual and Procedural History

The department filed a complaint against Grisez for disability discrimination in violation of the Fair Employment and Housing Act (FEHA) (§ 12900 et seq.) and Unruh Civil Rights Act (Civ. Code, § 51). The complaint alleges that in May 2015, one Nancy Good, a tenant of Grisez who has a mental health disability, gave Grisez a letter from her psychologist stating that she needs an emotional support animal because of her disability. Grisez, noting that its building is “pet free,” refused to engage in good faith in an interactive process regarding Good’s request for a reasonable accommodation, which it denied. In April 2016, Good filed a complaint with the department alleging disability discrimination.

In March 2017, after an investigation, the department filed a complaint against Grisez. Grisez then filed a cross-complaint containing one count against the department titled “negligence per se” and one against the department and Kish titled “abuse of process.”

The first count describes Grisez’s receipt of the psychologist’s letter—followed by allegations casting doubt on its validity. The cross-complaint alleges that Grisez’s attorney responded with a letter to Good explaining that there are “countervailing health and safety issues for the other thirty-one tenants in the building.” Good did not engage in good faith in an interactive process to negotiate a reasonable accommodation, though Grisez invited her to do so. After Good filed a complaint with the department, it undertook an investigation in which it bore a duty to “gather . . . all relevant evidence necessary to determine whether an unlawful housing practice has occurred.” Despite knowing of websites with “template letters containing language all but identical to Ms. Good’s prescription letter,” the department “took the letter at face value instead of meaningfully investigating.” It failed to gather all evidence relevant to “the legitimate disputes and countervailing issues raised” by Grisez. It failed to use the civil discovery tools at its disposal to assess the validity of the psychologist’s letter, thereby depriving Grisez of “a determination of whether Ms. Good was disabled . . . [and] whether that disability could be treated with a pet cat within any recognized standard of care.”

The cross-complaint’s second count, against the department and Kish, alleges that precomplaint investigations encompass “procedures incident to litigation that involve the judicial process of the superior courts.” Kish is responsible for creating policies, procedures, and practices that govern how the department conducts such investigations. In this case, Grisez responded to the department’s initial inquiry by “setting forth reasons they doubted Ms. Good’s claim.” Department personnel repeatedly called Grisez’s counsel to pressure Grisez to consent to Good keeping a cat “as if [Grisez’s] concerns had been fairly considered and investigated and found to be meritless.” After one such call, counsel sent the agent a letter quoting a magazine article discussing the number of people for whom cat fur is an allergen or asthma trigger. Thereafter, an “upper level department . . . manager” told Grisez’s counsel by phone that the department would never, as a matter of policy, gather such evidence in an investigation or consider it. These acts and omissions “were the result of policies formulated at the highest levels of the department . . . and implemented throughout the department,” with an “intent of not gathering all relevant evidence necessary to determine whether an unlawful housing practice occurred.”

The department and Kish demurred. In its opposition, Grisez clarified that the cross-complaint asserts a single cause of action under section 815.6—set forth in two counts—for breach of a mandatory duty created by the regulation requiring the department, in its investigations, to “gather all relevant information.” (2 Cal. Code Regs. § 10058(d).)

The court issued a tentative ruling sustaining the demurrer with leave to amend on the ground that section 10058 does not create a mandatory duty. At the hearing, Grisez conceded that it could not allege that the department conducted no investigation, as opposed to an investigation in which it failed to gather all relevant information. The court then sustained the demurrer without leave to amend, concluding that, in light of Grisez’s concession, it could not amend the cross-complaint to state a cause of action for breach of a mandatory duty. The court subsequently entered a “Judgment of Dismissal of Cross-complaint After Order Sustaining Demurrer,” from which Grisez filed a timely notice of appeal.

Discussion

1. This Court Lacks Jurisdiction of the Appeal from the Dismissal of the Cross-complaint as to the Department.
2.
Pursuant to section 68081, the court invited the parties to submit letter briefs addressing “whether this appeal should be dismissed, insofar as it challenges that part of the judgment dismissing the cross-complaint against the [department], since the department’s complaint against [Grisez] remains pending, and this court therefore has appellate jurisdiction only as to that part of the judgment dismissing the cross-complaint against . . . Kish, who is not a party to the still-pending complaint.”

The department responded in the affirmative. Grisez, however, contends that the dismissal of the department is appealable under the collateral-order doctrine identified in Sjoberg v. Hastorf (1948) 33 Cal.2d 116 (Sjoberg).

Like this case, Sjoberg involved an appeal from the dismissal of a cross-pleading. (Sjoberg, supra, 33 Cal.2d at p. 117.) The Court noted these general principles: “Under California procedure there is ordinarily only one final judgment in an action. [Citations.] A cross-complaint is not considered sufficiently independent to allow a separate final judgment to be entered upon it ([citations]) unless the judgment or order on the cross-complaint may be considered final as to some of the parties.” (Id. at p. 118.) “An appeal is allowed if the order is a final judgment against a party in a collateral proceeding growing out of the action. [Citations.] It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him.” (Id. at p. 119.)

In this case, the dismissal does constitute a final adjudication of Grisez’s claims against the department, but it does not “direct the payment of money by [Grisez] or the performance of an act by or against [Grisez].” (Sjoberg, supra, 33 Cal.2d at p. 119.) As Grisez points out, there are court of appeal decisions expressly discounting the compelled-payment-or-act requirement (e.g., Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 901), and decisions in which appellate courts have deemed orders “collateral” while failing to address that criterion (e.g., Meehan v. Hopps (1955) 45 Cal.2d 213, 216–217; In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1410–1411) or have construed the criterion loosely, so as to deem it satisfied on pragmatic grounds (e.g., Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 298–299). These decisions, we note, reflect a minority view (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2019) ¶¶ 2:79–2:80), but we need not reject that view in order to conclude that the dismissal of the cross-complaint here is not a collateral order.

Grisez contends that the cross-action is collateral because it concerns the department’s alleged wrongdoing and the rights of Grisez, whereas the department is prosecuting the main action as a de facto attorney for a real party in interest, Good, whose rights are truly at stake. Whether or not the compelled-payment-or-act criterion is a necessary element of a collateral order, we do not agree that a cause of action alleging that the department breached a duty to “gather . . . all relevant evidence necessary to determine whether an unlawful housing practice has occurred” is collateral to the causes of action alleging that an unlawful housing practice did occur. The dismissal of the cross-complaint is not based on a procedural matter unrelated to the substantive issues in the main action. (See, e.g., Meehan v. Hopps, supra, 45 Cal.2d at p. 214 [motion to enjoin counsel from participating in case]; Sjoberg, supra, 33 Cal.2d at p. 117 [petition to compel arbitration]; Muller v. Fresno Community Hospital & Medical Center, supra, 172 Cal.App.4th at p. 904 [motion for evidentiary sanctions].) Rather, a central question raised by the cross-complaint is whether the evidence that the department allegedly refused to “gather” is relevant to the merits of its claims against Grisez in the main action.

Moreover, whether or not to be considered collateral an order must direct payment or performance of an act, the principal reason for treating an order as collateral is to avoid changing the status quo or threatening prejudice if the order is not promptly corrected. In Sjoberg, after setting forth the requirement that a collateral order must “direct the payment of money. . . or the performance of an act” (Sjoberg, supra, 32 Cal.2d at p. 119), the Supreme Court stated, “There is no such direction in the present case [an order denying a petition to compel arbitration]. If appellants have a right to arbitration, they may assert it on the appeal from the final judgment in the contract action. Thus no greater hardship will result than in any case where a party is forced to stand trial because of an erroneous ruling of the trial court.” (Ibid.) Here, no hardship will result from deferring appellate review of the dismissal of the cross-complaint. Awaiting the entry of a final judgment disposing of all claims between Grisez and the department will serve judicial economy by permitting this court to consider, in one appeal, all arguments regarding evidence that was or was not considered in determining whether an unfair housing practice occurred. These considerations compel the conclusion that the dismissal of the cross-complaint is not collateral to the main action.

3. The Dismissal of the Cross-complaint as to Kish Was Proper.
4.
We review an order sustaining a demurrer de novo, exercising “ ‘ “our independent judgment about whether the complaint states a cause of action as a matter of law.” ’ ” (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 433.) “ ‘ “ ‘We treat the demurrer as admitting all material facts properly ple[d],’ ” ’ ” and reverse “ ‘if the plaintiff has stated a cause of action under any possible legal theory.’ ” (Id. at p. 506.) If, as in this case, the trial court sustained the demurrer without leave to amend, we decide if there is a reasonable possibility that an amendment could cure the defect. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

In opposing cross-defendants’ demurrer, Grisez stated unequivocally that “the cross-complaint contains a single cause of action” and that “[b]oth counts of the cross-complaint are based on a breach of a mandatory duty pursuant to section 815.6.” On appeal, Grisez reiterates that its cross-complaint “states two ‘causes of action,’ actually counts, for breach of a Government Code section 815.6 statutory duty: negligence per se and abuse of process.”

Section 815.6 states: “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty . . . .” (Italics added.) By its terms, the statute authorizes a cause of action only against a public entity—not against an individual public employee like Kish. (See Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 585, 587 [“one of the sections [of the Government Claims Act] creating liability [for] a public entity is section 815.6” by which “the Legislature intended to create liability on the part of governmental entities when injury was caused by failure to perform a mandatory duty”].) The structure of the Government Claims Act further confirms that section 815.6 applies only to public entities: It is part of the Liability of Public Entities article (§§ 815–818.9), and its purpose—like that of sections 815.2, 815.3, and 815.4—is to create a specific exception to the general rule of public entity immunity set forth in section 815. (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 179 [“section 815.6 provides a statutory exception to the general rule of public entity immunity”].)

While public employees such as Kish can be subject to common-law liability (§ 820, subd. (a)), they are protected from liability for the mere performance of their duties by numerous statutory immunities. The immunity that bars Grisez’s cause of action against Kish is set forth in section 820.8: “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person.” The cross-complaint does not allege that Kish performed or directed any act in connection with, knew anything about, or participated in any way in the investigation of this particular case. The only allegations referring to Kish are the conclusory allegation that he “is responsible for the creation and declaration of policies, procedures and practices that control the operations and actions of cross-defendants, and each of them, including how the investigations sought by pre-complaint inquiries for investigation are conducted.” The pleading also alleges that the alleged breaches “were the result of policies formulated at the highest levels of the department.” Even if unspecified department agents breached a duty to “gather all relevant evidence,” section 820.8 immunizes Kish from personal liability based on subordinate employees’ misconduct. (See Weaver v. State of California (1998) 63 Cal.App.4th 188, 202 [because Highway Patrol Commissioner was “in no way personally involved in the [injury-causing] incident,” section 820.8 “affords him immunity from liability based on the acts of his subordinates”]; see also County of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 227.)

Given its focus on section 815.6, Grisez never suggests any facts it could allege, if given leave to amend, that might state a cause of action against Kish. Grisez’s sole argument on appeal regarding Kish is that the trial court erred in granting a motion to strike Grisez’s claim for punitive damages. But because Grisez has not stated a cause of action against Kish, the propriety of the order striking the claim for punitive damages is moot. (See Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1470 [“Without tort liability, there can be no liability for punitive damages.”].) The trial court did not abuse its discretion in sustaining Kish’s demurrer without leave to amend.

Disposition

The appeal is dismissed for lack of appellate jurisdiction insofar as it seeks to challenge the dismissal of the cross-complaint against the department. The dismissal of the cross-complaint against Kish is affirmed.

POLLAK, P. J.

WE CONCUR:

TUCHER, J.

BROWN, J.