Filed 12/11/14 Scholink v. Salinas Valley Mem. Healthcare Syst. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


RON SCHOLINK,                                                        H040057
                                                                    (Monterey County
         Plaintiff and Appellant,                                    Super. Ct. No. M103314)

         v.

SALINAS VALLEY MEMORIAL
HEALTHCARE SYSTEM,

         Defendant and Respondent.



         In this wrongful termination case, we must determine whether plaintiff’s third
cause of action for “Wrongful Termination based on Discrimination/Retaliation” states a
common law tort claim for wrongful termination in violation of public policy—also
known as a Tameny1 claim—or a statutory tort claim for wrongful termination under the
Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940, et. seq.; all further
undesignated statutory references are to the Government Code). The difference is critical
since a Tameny claim cannot be brought against a public entity employer like defendant
Salinas Valley Memorial Healthcare System (Hospital).
         The third cause of action alleges, among other things, that plaintiff Ron Scholink
(Plaintiff) was terminated by his employer, Hospital, in violation of his rights “under



         1
              Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).
. . . Govt. Code [sections]. 12940 ff” (the FEHA), that “Plaintiff was required to and did
file pre-litigation claims concerning these matters with the state [Department] of Fair
Employment and Housing” (DFEH), and that he received a right-to-sue letter. The trial
court concluded that these allegations stated a common law Tameny claim for wrongful
termination in violation of public policy and granted summary adjudication of the third
cause of action on the ground that an employee may not state such a common law tort
claim against a public entity employer. We hold that the third cause of action states a
statutory claim for wrongful termination under the FEHA, which may proceed against a
public entity employer, and that the trial court erred in concluding that the third cause of
action was a common law tort claim under Tameny. We will therefore reverse the
summary judgment.

                           FACTS AND PROCEDURAL HISTORY2

       Plaintiff worked for Hospital from April 1998 until July 2011 in the cardiology
department as a sonographer. Plaintiff is an insulin-dependent diabetic. He also suffers
from chronic depression. It was undisputed that Hospital is a public entity.
       Plaintiff’s second amended complaint (the operative pleading) alleges:
(1) disability discrimination and failure to accommodate based on facts occurring while
Plaintiff was still employed by Hospital prior to July 2011, and (2) wrongful termination
and breach of an implied contract of employment based on his termination in July 2011.
We shall organize our discussion of the facts and procedural history around these two
separate time frames.



       2
         The record does not contain any of the evidence submitted by either party in
support of or in opposition to the motion for summary judgment. Since none of that
evidence is before this court, the facts are based on the parties’ separate statements.
Although we do not have a complete record of the motion for summary judgment, the
record is adequate to review the legal issue presented in this appeal.

                                              2
   I. Alleged Disability Discrimination and Failure to Accommodate While Plaintiff
      Worked for Hospital

       A. 2007 Incident with Consultant, 2008 Incident with Cafeteria Worker, and
       Resulting Discipline

       In 2007, Hospital hired a consultant (Consultant) who met with Plaintiff and later
complained to Hospital that Plaintiff’s responses to her questions were abrupt and made
her feel uncomfortable. Hospital believed Plaintiff had violated its rules of conduct.
Plaintiff disputed whether he was rude to Consultant and whether he had violated
Hospital’s rules. At about this time, Plaintiff objected to a remark that Tim Vitoux (one
of his supervisors) made to him in a meeting, but declined to meet with Vitoux to discuss
the issue. Plaintiff also declined Vitoux’s offer to discuss Plaintiff’s medical concerns.
       In July 2007, Plaintiff received a “documentation of verbal counseling” from
Hospital about his conduct toward Consultant and his failure to meet with Vitoux.
Hospital placed Plaintiff on an “action plan,” which required him, among other things, to
take a course on communication skills.
       In January 2008, a Hospital cafeteria worker filed a complaint with Hospital,
claiming that Plaintiff was “ ‘pushy’ ” and “ ‘disrespectful’ ” toward her when he
inquired about the carbohydrates in the cafeteria’s food. Hospital concluded that
Plaintiff’s conduct was unacceptable and had violated his existing action plan, issued
another “documentation of verbal counseling,” and placed him on another action plan,
which required him to (1) refrain from arguing with coworkers, (2) stop the use of
abusive language, and (3) take additional communications classes. Plaintiff disputed
whether he had acted inappropriately toward the cafeteria worker or had violated
Hospital’s rules or his action plan.




                                             3
       B. First DFEH Complaint

       In January 2009, Plaintiff filed a complaint with the DFEH, which alleged that
between January 2008 and January 2009 Hospital and Vitoux had discriminated against
him and harassed him because of his disability (diabetes). The DFEH issued a right-to-
sue letter to Plaintiff the following day.

       C. Requests for Disability Accommodations in 2009

       In January 2009, after Plaintiff filed his DFEH complaint, he met with Hospital’s
Employee Health Services (EHS) representatives to request flexible break and meal times
as an accommodation for his diabetes. The representatives asked for a note from
Plaintiff’s doctor to support his accommodation request. A few days later, Plaintiff told
one of the representatives he had not obtained the doctor’s note, but “things were
working out fine.” In his separate statement, Plaintiff alleged that he did this because he
was concerned about being harassed and possibly fired.
       Plaintiff subsequently filed a workers’ compensation claim for a stress-related
injury and was off work from February 24 until May 12, 2009.
       In June 2009, Plaintiff gave EHS two doctor’s notes. The notes said he needed
flexible meal and break times, food in his work area, and a set schedule to better control
his blood sugars. Hospital asked Plaintiff to have his doctor clarify whether the
accommodations were temporary or permanent, but said in the meantime it would
process his request as a temporary (one month) request. Plaintiff argued that Hospital did
not need to clarify the duration of his requested accommodation because his diabetes was
a chronic, permanent condition. He also claimed that Hospital threatened to fire him if he
did not withdraw his request for accommodation.
       Plaintiff later told Hospital he was not going to get another doctor’s note because
he did not want to “make demands” on the cardiology department. He also asked EHS


                                             4
not to process his accommodation request. But since Plaintiff had started the
accommodation process, Hospital asked him to present a doctor’s note stating he could
return to work without restrictions. Hospital then granted Plaintiff’s requests as a
temporary accommodation. Two days later, Plaintiff provided Hospital with a doctor’s
note that stated he could return to work without restrictions. Plaintiff claimed he did this
because he was concerned he would otherwise be fired.

       D. Second DFEH Complaint

       In October 2009, Plaintiff filed a second complaint with the DFEH alleging that
Vitoux had harassed him because he (Vitoux) had missed “a critical finding of a patient
who later died” and that Vitoux was trying to get Plaintiff “ ‘to quit like he has done to
other employees’ ” because Plaintiff knew about Vitoux’s alleged malpractice. Plaintiff
also alleged that he “ ‘was retaliated against for trying to join the union, disciplined on a
break while trying to treat a blood sugar reaction, and told [he] would lose [his] job if
[he] turned in requests for accommodations.’ ”

       E. Original and First Amended Complaints

       In January 2010, Plaintiff filed his original complaint in the superior court. In
October 2010, while Plaintiff was still employed by Hospital, he filed a first amended
complaint that alleged two causes of action: (1) disability discrimination under the
FEHA; and (2) refusal to accommodate his disability under the FEHA. The first
amended complaint alleged that Hospital “acted discriminatorily toward Plaintiff”
because of his medical conditions “in countless instances of work schedule settings, work
assignments, deprivation of break times, insulting behavior toward Plaintiff, etc.”




                                              5
   II. Wrongful Termination Claim

       A. Plaintiff’s Alleged Violations of Hospital Rules and Privacy Laws in 2011

       Hospital workers went on strike in June 2011. During the strike, substitute
workers performed echocardiograms. Vitoux later told the staff that one of the
substitutes had performed 11 echocardiograms in one day, while regular staff completed
far fewer studies each day. Plaintiff thought the substitutes must have done the
echocardiograms negligently or Vitoux was lying, so he audited several of the studies.
(Hospital alleged that Plaintiff audited 29 studies; Plaintiff could not recall how many
studies he reviewed.)
       At a department meeting on June 28, 2011, Plaintiff reported that he had audited
the echocardiograms done by the substitutes. Hospital alleged that in the audit, Plaintiff
reviewed protected patient health information in violation of the Health Insurance
Portability and Accountability Act (HIPAA) (42 U.S.C. § 1320d et seq.) and Hospital
policy. Plaintiff disputed this allegation. He stated that as a matter of custom and
practice, sonographers had access to patient records to review the work of colleagues to
“maintain high professional standards as well as honesty among personnel” and that such
audits were part of his duties. Plaintiff also alleged that he reviewed “the technical work
only,” and not the patients’ protected health information.
       On July 5, 2011, Hospital placed Plaintiff on paid administrative leave pending an
investigation into whether Plaintiff had violated HIPAA or Hospital’s privacy policy.
Hospital presented evidence that no one in management or the union had asked Plaintiff
to audit the echocardiograms, that the “lead echo technician” and the department manager
were the personnel assigned to review echocardiograms for purposes of peer review or
quality review, and that Plaintiff “was never assigned the job of case selection for peer
review.” Plaintiff disputed these facts, arguing that all technicians performed such
reviews and no assignment was necessary. Hospital also presented evidence that when


                                             6
cases are presented for training purposes, all patient identifiers are omitted. Plaintiff
disputed this, asserting that another Hospital employee had presented two case studies
that contained patient identifying information.
       Hospital concluded that Plaintiff’s audit was not for a business need or the care of
a patient, that Plaintiff had made a willful choice to access patient records for personal
reasons, and that his actions were a “Breach of Confidentiality” under federal and state
law and several Hospital policies. Hospital terminated Plaintiff effective July 8, 2011,
and reported Plaintiff’s action to state authorities and the patients involved as a breach of
confidentiality (Health & Saf. Code, § 1280.15).

       B. Plaintiff’s Third DFEH Complaint

       On August 29, 2011, Plaintiff filed a third complaint with the DFEH that alleged
gender and disability discrimination and retaliation. With regard to gender
discrimination, Plaintiff alleged that his “supervisor, Christie Kearnes, was biased against
male workers.” Plaintiff later alleged in his second amended complaint that the DFEH
had issued him a right-to-sue letter.

       C. Second Amended Complaint

       After Plaintiff received the right-to-sue letter on his third DFEH complaint, he
amended the complaint he had filed in the superior court. The second amended
complaint, filed on September 29, 2011, alleged the same two causes of action as the first
amended complaint, verbatim. But Plaintiff added a third cause of action for “Wrongful
Termination based on Discrimination/Retaliation” and a fourth cause of action for
“Breach of Implied Contract of Employment.” Unlike the first two causes of action,
which alleged disability discrimination and failure to accommodate while Plaintiff was
employed by Hospital, the third and fourth causes of action were based on Plaintiff’s
termination on July 8, 2011.

                                              7
   III.    Motion for Summary Judgment or, in the Alternative, Summary
           Adjudication

       Hospital moved for summary judgment or, in the alternative, summary
adjudication of each cause of action in the second amended complaint. Hospital argued
that Plaintiff’s first cause of action for disability discrimination under the FEHA failed as
a matter of law because (1) there was no evidence of discriminatory intent; (2) his claims
based on the verbal counseling were barred by the statute of limitations; and (3) he was
disciplined and terminated for legitimate, nondiscriminatory reasons. Hospital argued
that Plaintiff’s second cause of action for failure to accommodate failed because
(1) Plaintiff failed to exhaust his administrative remedies; (2) Hospital provided the
requested accommodations; and (3) Plaintiff caused the interactive process to end.
Hospital asserted that Plaintiff’s third cause of action for wrongful termination failed
because Plaintiff was “terminated for a legitimate, non-discriminatory reason, specifically
his violation of the HIPAA statute and Hospital policy.” Finally, Hospital argued that
Plaintiff could not state a fourth cause of action for breach of an implied employment
contract because Hospital is a public entity, and employment by a public entity is by
statute, not contract.
       In opposition to the motion, Plaintiff argued that there were triable issues of
material fact that precluded summary adjudication of each cause of action.
       In its reply, based on the undisputed fact that Hospital is a public entity, Hospital
argued—for the first time—that Plaintiff’s third cause of action for wrongful termination
was also barred because “a common law action for wrongful termination in violation of
public policy, also known as a Tameny action, cannot be brought against a public entity.”
Hospital made the same argument at the hearing on the motion for summary judgment.
The court took the motion under submission.
       In August 2012, the parties discussed the pending motion with the court at a
settlement conference and the court announced that its tentative ruling was to grant


                                              8
summary adjudication of the third cause of action. Three days later, Plaintiff’s counsel
sent the court a letter, which asserted that Hospital was “inviting the court to engage in
clear error” and that Plaintiff’s use of the title “Tortious Wrongful Termination” for his
third cause of action could refer to either a common law tort or a statutory tort and the
text of the second amended complaint “makes it clear that Plaintiff is asserting a
statutory” claim under the FEHA, which may proceed against a public entity.
       Hospital objected via letter brief that briefing on the motion for summary
judgment was closed. Hospital also argued that Plaintiff had “ ‘tether[ed]’ his tortious
wrongful termination claim to fundamental public policy delineated in Government Code
[section] 12940. It is not uncommon for a plaintiff to [plead] a statutory discrimination
claim (as plaintiff has done in his first cause of action) and then plead, in addition, that
his statutory claim gives rise to a tort cause of action sounding in wrongful termination in
violation of public policy. That is precisely what [Plaintiff] has done.” (Original
underscoring.)
       The court denied Hospital’s motion for summary adjudication of the first and
second causes of action and hence its motion for summary judgment. But the court
granted summary adjudication of: (1) the third cause of action for wrongful termination,
reasoning that the Government Code “bars common law wrongful termination actions
against public entities and Plaintiff has not stated a statutory cause of action”; and (2) the
fourth cause of action for breach of contract, reasoning that “[p]ublic employees do not
hold their employment by contract.”
       Plaintiff sought writ review, which this court denied. Plaintiff then moved for
reconsideration of the ruling on the third cause of action in the trial court, which the court
denied.




                                               9
Stipulation and Judgment

       In July 2013, shortly before trial, the parties stipulated that Plaintiff would dismiss
his first two causes of action without prejudice, that Hospital would waive any statute of
limitations defense that may arise as a result of the stipulation, that judgment would be
entered for Hospital on the third and fourth causes of action, that Plaintiff would appeal
the judgment as to the third cause of action, and that if Plaintiff prevailed on appeal, he
could re-file the first and second causes of action. The parties also agreed that if Plaintiff
lost the appeal, then Plaintiff would dismiss the first two causes of action with prejudice.
Based on the order summarily adjudicating the third and fourth causes of action and
Plaintiff’s dismissal of the first and second causes of action without prejudice, the court
entered judgment for Hospital.

                                        DISCUSSION

       Plaintiff contends the trial court erred when it granted summary adjudication of his
third cause of action because the court erroneously interpreted the third cause of action as
alleging a common law tort claim for wrongful termination in violation of public policy
when, in fact, it alleged a statutory tort claim for wrongful termination based on a
violation of the FEHA. Plaintiff does not dispute that under the Government Claims Act,
he may not assert a common law wrongful termination claim against Hospital because it
is a public entity. But he argues that he may pursue a statutory wrongful termination
claim against Hospital under the FEHA. Plaintiff also argues that the court treated the
motion for summary judgment like a demurrer and abused its discretion when it denied
him leave to amend to state a statutory, as opposed to a common law, claim.
       Hospital argues that the third cause of action is a common law claim for wrongful
termination that may not proceed against Hospital because it is a public entity. Hospital
also argues that the nature of the wrongful termination claim was undisputed in the


                                              10
proceedings below. Hospital contends that even if it did not move for summary
adjudication of the third cause of action on the ground that it was a public entity, the trial
court could still have granted summary adjudication on that ground. Hospital argues that
the court did not abuse its discretion in denying leave to amend because: (1) Plaintiff
never requested leave to amend in the trial court, (2) the third cause of action cannot be
amended to state a viable claim, and (3) Hospital would be prejudiced by the delay in
amending the complaint.
        Before addressing these contentions, we must first determine whether, in light of
the parties’ stipulation, the judgment is appealable under the one final judgment rule.

Appealability

        “A judgment that disposes of fewer than all the causes of action framed by the
complaint is not final in the fundamental sense as to any parties between whom another
cause of action remains pending.” (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th
288, 307 (Sullivan), citing Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725,
741.)
        In October 2013, after Plaintiff filed his notice of appeal, the California Supreme
Court decided Kurwa v. Kislinger (2013) 57 Cal.4th 1097 (Kurwa). In Kurwa, the court
held that when the trial court has resolved some causes of action and other causes of
action are voluntarily dismissed, but the parties agree to preserve the voluntarily
dismissed counts for potential litigation following an appeal—as happened in this case—
the judgment rendered does not dispose of all of the claims between the parties and is
therefore not appealable under the one final judgment rule (Code Civ. Proc., § 904.1,
subd. (a)). (Id. at p. 1105.) An appeal from a judgment that is not final under the one
final judgment rule must be dismissed, “unless the violation can be cured by amending
the judgment.” (Sullivan, supra, 15 Cal.4th at pp. 307-308.)



                                              11
       Acknowledging that the judgment in this case is not appealable under Kurwa, the
parties entered into a new stipulation after the appeal was filed in which Plaintiff agreed
(1) not to “further pursue” his first cause of action for disability discrimination and his
second cause of action for failure to accommodate, “which means it is as if those claims
are now dismissed with prejudice,” and (2) that there is no tolling agreement regarding
those claims. (Italics added.) The parties filed that stipulation in this court. We must
determine what effect, if any, this new stipulation has on the appealability of the
judgment.
       Sullivan described two situations in which an appellate court may exercise its
discretion to preserve an appeal by amending the judgment. First, “[w]hen ‘the trial
court’s failure to dispose of all causes of action results from inadvertence or mistake
rather than an intention to retain the remaining causes of action for trial’ [citation], the
appellate court has discretion to ‘preserve the appeal by amending the judgment to reflect
the manifest intent of the trial court’ [citations].” (Sullivan, supra, 15 Cal.4th at p. 308.)
Second, “[w]hen a party expressly waives on appeal the right to litigate an unresolved
cause of action that deprived the judgment as entered of finality, the appellate court may
give effect to the waiver by amending the judgment to reflect a dismissal of that cause of
action with prejudice.” (Id. at pp. 308-309.) In Sullivan, for example, one cause of
action remained unresolved after trial because the jury had deadlocked on that claim. In
her reply brief before the California Supreme Court, the plaintiff declared that she waived
any right to a retrial on the unresolved claim. Since the issues on appeal had been fully
briefed and argued, and the case was ready for decision, the Supreme Court held that it
was appropriate to exercise its discretion (1) “to direct that the judgment be amended . . .
in the interests of justice and to avoid unnecessary delay” and (2) “to direct that these
amendments to the judgment take effect nunc pro tunc as of the date that the judgment
was purportedly rendered.” (Id. at p. 309.)



                                              12
       In the stipulation filed in this court, Plaintiff has agreed not to pursue his first two
causes of action further, “as if those claims are now dismissed with prejudice.” Since the
issues have been fully briefed and Plaintiff has waived any right to trial on the first two
causes of action, we shall exercise our discretion to preserve the appeal and will direct the
trial court to amend the judgment nunc pro tunc to reflect a dismissal of the first and
second causes of action with prejudice. Since those claims have been dismissed with
prejudice, the judgment (as amended) no longer violates the one final judgment rule and
we may consider the merits of the appeal.

Rules Governing Summary Adjudication and the Standard of Review

       We review an order granting summary judgment or summary adjudication de
novo. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858 (Serri), citing
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar ) and Certain
Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.)
       “In undertaking our independent review, we apply the same three-step analysis
used by the trial court. First, we identify the issues framed by the pleadings. Second, we
determine whether the moving party has established facts justifying judgment in its favor.
Finally, in most cases, if the moving party has carried its initial burden, we decide
whether the opposing party has demonstrated the existence of a triable issue of material
fact.” (Serri, supra, 226 Cal.App.4th at pp. 858-859.) “A motion for summary
adjudication shall be granted only if it completely disposes of a cause of action, an
affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c,
subd. (f)(1).)
       Unlike a typical appeal from a summary judgment, which generally involves the
second or third steps in the analysis, this case concerns the first step: identifying the
issues framed by the pleadings. The issues in this appeal require us to interpret the
allegations of the third cause of action. This involves the interpretation of a writing,


                                              13
which we review de novo. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861,
865-866.)

Public Entity Immunity from Common Law Torts Under Government Claims Act

       “At common law, the government was immune from suit under the doctrine of
sovereign immunity, but beginning in the early 20th century, this doctrine began to be
criticized as outmoded and overbroad. [Citations.] In 1957, the Legislature authorized
the California Law Revision Commission to conduct a study to determine whether the
common law doctrine of sovereign immunity should be abolished or revised in
California. [Citations.]” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 542-
543 (DeJung).) “In January 1963, the Law Revision Commission issued its
Recommendations, upon which the Legislature relied in large part in enacting the
California Tort Claims Act of 1963.” (DeJung, at p. 543, citing § 815.) The name of the
act was later changed to the “Government Claims Act.” (Stats. 2012, c. 759, § 5; see City
of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734, 741-742.) “The [Government]
Claims Act applies to all public entities and their employees, . . . . [Citations.] It permits
private tort actions against government entities and employees where permitted by
statute, but otherwise retains the general concept of immunity for government entities.
(§ 815.)” (DeJung, at p. 543.)
       “The Government Claims Act (§ 810 et seq.) establishes the limits of common law
liability for public entities, stating: ‘Except as otherwise provided by statute: [¶] (a) A
public entity is not liable for an injury, whether such injury arises out of an act or
omission of the public entity or a public employee or any other person.’ (§ 815, subd.
(a), italics added.) The Legislative Committee Comment to section 815 states: “This
section abolishes all common law or judicially declared forms of liability for public
entities, except for such liability as may be required by the state or federal constitution,
e.g., inverse condemnation . . . .” ([Citation], italics added.) Moreover, [California

                                              14
Supreme Court] decisions confirm that section 815 abolishes common law tort liability
for public entities. [Citations.]” (Miklosy v. Regents of University of California (2008)
44 Cal.4th 876 (Miklosy).) “Under the Government Claims Act (Gov. Code, § 810 et
seq.), there is no common law tort liability for public entities in California; instead, such
liability must be based on statute. ([Citations;] see Williams v. Horvath (1976) 16 Cal.3d
834, 838 . . . [‘intent of the act is not to expand the rights of plaintiffs in suits against
governmental entities, but to confine potential governmental liability to rigidly delineated
circumstances’].)” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.)

Hospital is Immune from a Common Law Wrongful Termination Action, but not a
Statutory Wrongful Termination Claim under the FEHA

       In Tameny, the California Supreme Court “stated: ‘[W]hen an employer’s
discharge of an employee violates fundamental principles of public policy, the discharged
employee may maintain a tort action and recover damages traditionally available in such
actions.’ ([Tameny, supra, 27 Cal.3d] at p. 170, . . . .) Later, in Gantt v. Sentry Insurance
(1992) 1 Cal.4th 1083, 1095, . . . (Gantt ), [the court] clarified that a Tameny cause of
action must be “carefully tethered to fundamental policies that are delineated in
constitutional or statutory provisions.” ’ ” (Miklosy, supra, 44 Cal.4th at p. 898.) “The
tort [the Supreme Court] recognized in Tameny, and reaffirmed in Gantt, is premised on
the wrongful termination of an employment relationship. If an employer terminates an
employment relationship for a reason that contravenes some fundamental public policy,
then the employer breaches a general duty imposed by law upon all employers and the
employee’s remedy therefore sounds in tort.” (Miklosy, at p. 900, citing Tameny, supra,
27 Cal.3d at p. 176.)
       In Miklosy, the Supreme Court examined the interplay between a common law
Tameny claim for wrongful termination in violation of public policy and a wrongful
termination claim based on statute. It noted that in Palmer v. Regents of University of



                                               15
California (2003) 107 Cal.App.4th 899 (Palmer), “the Court of Appeal applied section
815 in . . . a whistleblower retaliation claim against the University of California. The
court observed: ‘The only statutory authorization for a civil damage action based on
alleged retaliation against a University of California employee for reporting improper
activity is section 8547.10. Accordingly, a university employee who believes she is the
victim of retaliation is limited to a statutory claim for damages under section 8547.10.’
[Citation.] The [Palmer] court went on to affirm summary judgment against the plaintiff,
who had asserted only a Tameny cause of action: ‘Because the “classic Tameny cause of
action” is a common law, judicially created tort . . . and not authorized by statute, it is not
properly asserted against the Regents.’ ” (Miklosy, at p. 899, citing Palmer, at p. 909.)
Although the Court of Appeal’s discussion of section 815 in Palmer was dictum, the
California Supreme Court later agreed “that section 815 bars Tameny actions against
public entities.” (Miklosy, at pp. 899-900, citing Palmer, at p. 910 & fn. 11.)
       Although a public employee cannot state a common law Tameny claim for
wrongful termination in violation of public policy against a public entity employer, he or
she may state a statutory claim for wrongful termination in violation of the FEHA against
a public entity. “Indeed, FEHA expressly makes public employers, like private
employers, directly liable for violations of that law, . . . . Section 12926, which defines
various terms used in the FEHA statutory scheme, provides that the term ‘ “[e]mployer”
includes . . . the state or any political or civil subdivision of the state, and cities . . . .’
(§ 12926, subd. (d), . . . .)” . . . [T]he inclusion of ‘the state or any political or civil
subdivision of the state’ within FEHA’s definition of ‘employer’ constitutes an express
declaration of the Legislature’s intent to subject public entities to liability for violations
of FEHA, . . . .’ ” (DeJung, supra, 169 Cal.App.4th at pp. 545-546, fn. omitted, italics in
DeJung, citing Caldwell v. Montoya (1995) 10 Cal.4th 972, 989 (Caldwell).)
       “The FEHA ‘creates direct statutory rights, obligations and remedies between a
covered “employer,” private or public, and those persons it considers or hires for

                                                 16
employment.’ [Citation.] . . . By ‘otherwise provid[ing]’ for direct entity liability, the
FEHA’s provisions provide a viable basis for tort liability against a public employer
. . . .” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1015,
original italics, underscoring added, [sexual harassment claim under FEHA], quoting
Caldwell, supra, 10 Cal.4th at p. 989, fn. 9.)

The Third Cause of Action States a Statutory Claim

       Resolution of the parties’ contentions require us to determine whether the third
cause of action states a common law tort claim for wrongful termination in violation of
public policy, a statutory tort claim under the FEHA, or both. The pleadings play a key
role in a motion for summary judgment or summary adjudication. The function of the
pleadings “ ‘is to delimit the scope of the issues’ ” and to frame “the outer measure of
materiality in [the] proceeding.” (FPI Development, Inc. v. Nakashima (1991) 231
Cal.App.3d 367, 381.) “The materiality of a disputed fact is measured by the pleadings
[citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’
[Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244,
1250 (Conroy).) “Accordingly, a defendant moving for summary judgment is only
required to negate the plaintiff’s theories of liability as alleged in the complaint; that is, a
moving party need not refute liability on some theoretical possibility not included in the
pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493
(Hutton), citing Conroy, at pp. 1254-1255 and other cases.)
       “Cause of action” has been defined as “ ‘simply the obligation sought to be
enforced.’ ” (Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845,
847.) “ ‘In a broad sense, a “cause of action” is the invasion of a primary right (e.g.
injury to person, injury to property, etc.) . . . . [¶] However, in more common usage,
“cause of action” means a group of related paragraphs in the complaint reflecting a
separate theory of liability . . . . [¶] As used in the [summary judgment statute], “cause

                                              17
of action” should be interpreted in the latter sense (theory of liability).’ [Citation.]”
(Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1853; original
italics.)
        Plaintiff’s second amended complaint is on the Judicial Council form for personal
injury, property damage, and wrongful death actions. The title identifies it as the “2nd
Amended Complaint” for “Discrimination re Medical Condition; Wrongful
Termination.” The third page of the Judicial Council form describes the third cause of
action as “Tortious Wrongful Termination,” and the third cause of action attached to the
Judicial Council form is labeled “Wrongful Termination based on
Discrimination/Retaliation.” None of these headings or labels indicate whether the claim
is a common law Tameny claim or a statutory claim under the FEHA.
        The third cause of action itself alleges: “On July 8, 2011 Defendant [Hospital]
terminated Plaintiff’s employment wrongfully, based on motives of discrimination and/or
retaliation. Defendant asserted it was firing Plaintiff for an alleged HIPPA [sic]
violation, but in fact the firing was motivated by (1) discriminatory treatment based on
(a) Plaintiff’s medical conditions (diabetes and/or depression), and/or (b) Plaintiff’s
requests for accommodations for said medical conditions, and/or (c) Plaintiff’s gender
(male), and (2) retaliatory action by Defendant against Plaintiff for exercising his legal
rights to (a) file this medical discrimination lawsuit and pre-litigation claims related to it,
and/or (b) engage in various lawful labor activities in connection with his employment,
including but not limited to union activities.”
        The third cause of action also alleges: “Said actions by Defendant violated
Plaintiff’s rights under Cal. Govt. Code secs. 12940 ff., Title VII of the federal Civil
Rights Act and the Americans With Disabilities Act. [¶] Plaintiff was required to and
did file pre-litigation claims concerning these matters with the state [DFEH] and the
federal Equal Employment Opportunity Commission. Both agencies have now
concluded their processing of said claims and have issued to Plaintiff their notices of

                                              18
right-to-sue.” The third cause of action also claims various damages as a “proximate
consequence of Defendant’s actions.”
       The phrase “Cal. Govt. Code secs. 12940 ff.” in the third cause of action is an
express reference to the FEHA, which suggests that Plaintiff has pleaded a statutory
cause of action. But Gantt instructs that a common law claim for wrongful termination
must be tethered to fundamental policies that are delineated in either constitutional or
statutory provisions. (Gantt, supra, 1 Cal.4th at p. 1095.) Thus, the phrase may be
interpreted as satisfying this requirement from Gantt.
       But the third cause of action also alleges that Plaintiff filed a complaint regarding
his wrongful termination with the DFEH and received a right-to-sue letter. The timely
filing of an administrative complaint and the exhaustion of that remedy is a prerequisite
to maintaining a civil action for damages under the FEHA. (§ 12965, subd. (b);
Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 214.) But
administrative “exhaustion is not required before filing a civil action for damages
alleging nonstatutory causes of action,” including a common law tort claim for wrongful
termination in violation of public policy. (Rojo v. Kliger (1990) 52 Cal.3d 65, 88 (Rojo).)
Thus, the allegations that Plaintiff filed a DFEH complaint and exhausted his
administrative remedies relating to his termination supports the conclusion that the third
cause of action states a statutory, not a common law claim.
       Rojo instructs that an “employee, of course, may elect to waive the statutory cause
of action and remedies, and proceed directly to court on the common law claims
[citation]; alternatively, the employee may pursue both the administrative and the judicial
avenues, either sequentially [citations] or simultaneously, in the latter case amending his
or her complaint to join the FEHA cause of action once the Department has issued the
right-to-sue letter [citation].” (Rojo, supra, 52 Cal.3d at p. 88.) Plaintiff did something
similar here, but he alleged only statutory claims. He filed his original and first amended
complaints alleging disability discrimination and failure to accommodate under the

                                             19
FEHA. After he was terminated, he filed a third DFEH complaint. And after the DFEH
issued the third right-to-sue letter, Plaintiff amended his complaint in the superior court to
add another FEHA cause of action based on his wrongful termination. Thus, the timing
of the amendment also supports the conclusion that the third cause of action states a
statutory tort claim for violation of the FEHA.
       Analysis of the first two causes of action also supports this conclusion. The first
cause of action alleged that Hospital “acted discriminatorily toward Plaintiff” because of
his medical conditions “in countless instances of work schedule settings, work
assignments, deprivation of break times, insulting behavior toward Plaintiff, etc. . . . all in
violation of Government Code 12940 et seq. (Discrimination based on disability-medical
condition).” The second cause of action alleged that “[d]espite Plaintiff’s many requests”
for accommodation, Hospital “has consistently and continually refused to take any such
accomodating [sic] actions in numerous situations, including but not limited to work
schedules, break schedules, work assignments and other working conditions.” The first
two causes of action allege disability discrimination and failure to accommodate while
Plaintiff still worked for Hospital. They do not mention his termination. This makes
sense since Plaintiff filed his first amended complaint before he was terminated. In
addition, he did not amend his first two causes of action when he filed his second
amended complaint, which added the third and fourth causes of action and was filed after
he was terminated.
       Unlike the first two causes of action, the third cause of action alleges that Plaintiff
was terminated based in part on his medical conditions and requests for accommodation.
Thus, the factual basis of the third cause of action is different from that of the first two
causes of action. At the hearing on the motion for summary judgment, Hospital’s counsel
acknowledged that the first cause of action for disability discrimination in violation of the
FEHA did not allege that Plaintiff was terminated because of his disability.



                                              20
       Based on our analysis of the second amended complaint, we conclude that the
third cause of action states a statutory claim for wrongful termination in violation of the
FEHA, which may proceed against a public entity. We also conclude that the court erred
when it held that the third cause of action stated a common law Tameny claim for
wrongful termination in violation of public policy as the basis to grant summary
adjudication of the third cause of action.
       Citing its undisputed material fact (UMF) number 102, Hospital argues that it was
undisputed that the third cause of action was a common law claim for “wrongful
termination,” not a FEHA claim. Hospital’s UMF number 102 asserted in part that the
third cause of action alleged a cause of action for “[w]rongful termination based on
discrimination/retaliation.” Plaintiff agreed that this fact was undisputed. But Hospital’s
UMF number 102 does not distinguish between a common law claim for wrongful
termination and a statutory claim. We therefore disagree that the nature of the claim was
undisputed in the proceedings below.
       Hospital also argues that if Plaintiff wanted to bring a FEHA claim against
Hospital, “he should have amended his FEHA cause of action to add termination and
retaliation in violation of the FEHA when he filed the second amended complaint.”3 It is
clear from Hospital’s brief that its reference to the “FEHA cause of action” means


       3
          It appears that when Hospital prepared its motion for summary judgment, it
assumed the first cause of action already included these post-termination allegations. In
its separate statement, under the heading “FIRST CAUSE OF ACTION[,] DISABILITY
DISCRIMINATION[,] Issue 4,” Hospital argued “Plaintiff’s First Cause of Action for
Disability Discrimination fails as a matter of law because Hospital terminated plaintiff
for a legitimate nondiscriminatory reason.” (Italics added.) Hospital then set forth
38 “undisputed material facts” related to the events after the June 2011 strike that led to
Plaintiff’s termination. But the first cause of action did not plead wrongful termination.
The trial court denied Hospital’s motion for summary adjudication of the first cause of
action, finding that “Plaintiff has raised questions of fact as to whether there was
discriminatory intent and a reasonable attempt to accommodate him.” That ruling is not
at issue on appeal.

                                             21
Plaintiff’s first cause of action for disability discrimination in violation of the FEHA.
When amending his complaint after he was fired, Plaintiff elected to allege facts related
to his termination in his third cause of action. Hospital cites no authority that required
Plaintiff to amend his first cause of action instead of pleading a separate FEHA claim
based on his termination in the third cause of action. (See Mathieu v. Norrell Corp.
(2004) 115 Cal.App.4th 1174, 1188-1189 [complaint that charged both sexual harassment
and retaliation for complaining about the harassment alleged separate and distinct causes
of action for purposes of summary adjudication because harassment and retaliation are
separate bases for employer liability under the FEHA].)
       Hospital also argues that Plaintiff “never sought leave to amend the second
amended complaint to add claims of termination and retaliation in violation of the FEHA,
and he may not seek leave to amend for the first time on appeal.” And Hospital asserts
that Plaintiff could have requested leave to amend after Hospital raised the immunity
issue in its reply papers, at the hearing on the motion for summary judgment, after the
court ruled on the motion, or after “Hospital’s counsel educated him in what he should
have done at the hearing” on the motion for reconsideration. Finally, Hospital asserts that
since Plaintiff was not diligent in requesting leave to amend, he should not be allowed to
amend, and that amendment at this time will result in prejudice to Hospital because of the
passage of time. Since the third cause of action states a statutory claim for wrongful
termination in violation of the FEHA, however, Plaintiff was not required to seek leave to
amend prior to the hearing on the motion for summary judgment.

                                       DISPOSITION

       We direct the trial court to amend the judgment entered on July 13, 2013, to reflect
a dismissal nunc pro tunc of the first and second causes of action with prejudice. The
judgment, as amended, is reversed and the case is remanded to the trial court for further



                                             22
proceedings on the third cause of action for the statutory claim of wrongful termination in
violation of the FEHA.




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                      _______________________________
                      Márquez, J.




WE CONCUR:




_____________________________________
 Rushing, P. J.




______________________________________
 Elia, J.
