 Filed 8/14/20 Kuigoua v. Cal. Corrections Health etc. CA2/5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          SECOND APPELLATE DISTRICT

                                         DIVISION FIVE

ARNO P. KUIGOUA,                                                       B291984

        Plaintiff and Appellant,                                       (Los Angeles County
                                                                       Super. Ct. No.
        v.                                                             BC608602)

CALIFORNIA CORRECTIONS
HEALTH CARE SERVICES et al.,

        Defendants and Respondents.

      APPEAL from a judgment of the Superior Court of Los
 Angeles County, David S. Cunningham III, Judge. Affirmed.

       The Appellate Law Firm, Corey Evan Parker and Tania
 Williams for Plaintiff and Appellant.

       Xavier Becerra, Attorney General, Chris A. Knudsen,
 Assistant Attorney General, Gary S. Balekjian and Brad Parr,
 Deputy Attorneys General, for Defendant and Respondent.
                   __________________________
                          INTRODUCTION
       Plaintiff Arno P. Kuigoua appeals from summary judgment
of his employment discrimination and wrongful termination
claims, entered in favor of defendant California Correctional
Health Care Services (CCHCS). We affirm because no triable
issue of material fact exists for the six causes of action as alleged
in the operative first amended complaint: retaliation,
discrimination, and failure-to-prevent, in violation of the Fair
Employment and Housing Act (“FEHA”); retaliation under the
Labor Code and the Whistleblower Protection Act; and
discrimination and retaliation by a health care facility under the
Health and Safety Code.
          FACTS AND PROCEDURAL BACKGROUND
1.     Plaintiff’s Employment with CCHCS
       In 2010, plaintiff, a man of Cameroonian descent, began
working as a registered nurse with CCHCS at various prison
facilities. “California Correctional Health Care Services is part of
the California Department of Corrections and provides health
care services to inmates housed at California’s state prisons.” In
2012, plaintiff was promoted to part-time supervisor registered
nurse II at Lancaster Prison. Plaintiff’s duties included
planning, assisting and directing the work of the nursing staff;
ensuring duties were assigned and shifts covered; developing
nursing service policies and procedures; and the recruiting and
evaluation of nursing staff.
       As a part-time employee, plaintiff was guaranteed 20 hours
of work per week. In point of fact, he typically worked more than
70 hours per week because he volunteered for overtime, although
some of the overtime was compulsory. In December 2013,
plaintiff was offered a permanent full-time position as a
supervisor registered nurse at California City Correctional



                                  2
Facility, but declined the job so that he could keep his part-time
position at Lancaster Prison.
      In the present lawsuit, plaintiff asserted that CCHCS
subjected him to adverse employment actions beginning in late
2013 and wrongful termination in May 2015 as a result of gender
discrimination.1
      Below, we summarize the principal employment events
that formed the basis for plaintiff’s claims and those he raised
during summary judgment proceedings. As we shall explain, the
theories plaintiff asserted in response to defendant’s summary
judgment motion were not always square with the allegations he
made in his first amended complaint, a fatal misalignment in
defending against summary judgment.
2.    Tension Between Defendant and His Supervisors
      Many of the incidents plaintiff complained of involved his
former supervisor, Sharon Brooks. The first incident occurred in
late December 2013, when plaintiff and Brooks had an email
exchange about another employee receiving a specific shift.
Plaintiff characterized Brooks’s decision to schedule the employee
as wasteful. Plaintiff attested that he filed an internal complaint
against Brooks with the prison warden and CEO about the
scheduling, but it was not addressed.
      Plaintiff alleged that following this complaint, he suffered a
series of retaliatory actions. Two days later, the director of
nursing at CDCR told plaintiff in an email to follow a particular
procedure for shift changes, explaining plaintiff recently had not

1     Plaintiff asserted in his first amended complaint and
opening brief that he was terminated on June 5, 2015. Plaintiff
cited his own declaration for support of this statement. Records
provided by CCHCS indicate his transfer to the Department of
Veteran Affairs was completed on May 11, 2015. Any
discrepancy in the date does not affect our analysis.

                                 3
followed the procedure when dealing with one of his staff.
Plaintiff attested that about one month later, the director accused
plaintiff of failing to perform job duties.
       Plaintiff attested that in February 2014, the director and
Brooks falsely accused plaintiff of wrongdoing and
insubordination. He asserted that in March 2014, he was
shouted at, accused of failing to complete several job duties, and
was written up for “care incidents.”
       On March 27, 2014, he received a formal Letter of
Instruction for his failure to prepare a medication error report in
March 2013. The year lapse of time between the error and the
letter appeared attributable to CCHCS’s internal investigation.
3.     April 2014 National Origin Complaints
       Plaintiff responded to the Letter of Instruction in a
memorandum, dated April 10, 2014. He accused Brooks of
retaliation and discrimination based on his natural origin or
nepotism. He wrote that the letter of instruction represents “the
epiphany of retaliation practice and discrimination, favoritism.
I’m trying hard to find the reason behind the bigotry I am being
subject to. I can come up with only two reasons: my national
origin or nepotism.”
       On April 13, 2004, plaintiff wrote an email to himself – he
is listed as both sender and recipient. The email, though, starts
“Dear Ms. Shank,” an apparent reference to CCHCS CEO Penny
Shank. The email requests a meeting about his disputes with
Brooks and others. It continues, “I would like to know why I am
being subject (between Ms. Brooks and Ms. Pryor) to increasing
harassment, discrimination, favoritism. I can’t find any rational
explanation other than my national origin.” In a memorandum
also dated April 13, 2014, which he testified he sent to CEO
Shank, plaintiff complained that he was subjected to
discrimination, harassment, and retaliation, and again repeated

                                4
he could assume that it was due to “national origin”
discrimination.2 In an April 16, 2014 memorandum, plaintiff
stated he believed national origin discrimination prompted
another supervisory employee to become upset with him for
kicking her chair.
4.     Conflict with Brooks Over Supervisor Duties
       On May 1, 2014, Supervisor Brooks sent out an email to
supervisory staff, including plaintiff, which stated: “Please make
sure your staff correct their mistakes, if the staff is on vacation it
will become your responsibility to correct.” Via email, copying
the recipients of Brooks’s original email, plaintiff responded the
same day: “This practice will go against the Nursing Practice Act
(‘NPA’) which is the body of California law that mandates the
Board to set out the scope of practice and responsibilities for
RNs.”
       In a May 2, 2014 email, Brooks provided further direction
to plaintiff and all other persons copied on plaintiff’s email. She
stated: “The correction will need to occur as indicated per Title
22 and to ensure licensure for [Lancaster Prison]. Now, as a
supervisor I did not believe I had to break down each and every
exact function that you as a nurse and supervisor will need to
perform and assess. However, if you and others with
responsibilities to the CTC are requiring this, please let me
know.”
       Plaintiff sent another email on May 4, 2014, stating he
“vehemently decline[d]” to follow Brooks’s directive. Plaintiff’s
direct supervisor, Nair Manjula, responded that same day,
providing further guidance to plaintiff. Manjula explained via
email: “You have taken the directive ‘your responsibility to


2     The record is unclear whether the email actually was sent
to Ms. Shank. The memorandum was.

                                  5
correct it’ as if you were asked to chart in the eUHR. You as a
supervisor are responsible for your staff omissions or inaccuracy.
The way to correct it is: 1 – counsel the staff. 2 – give them
training. 3 – monitor their work. 4 – if error repeats you write
them up. 5 – if error continues then go to progressive discipline.”
5.     Passed Over for Promotions and Overtime
       In July 2014, plaintiff filed a grievance asserting that he
was unreasonably denied overtime hours in July 2014 due to his
national origin.
       In spring and fall 2014, plaintiff applied for three
promotions but received none. According to its pattern and
practice, CCHCS selected the three highest scoring applicants in
the interview process for those positions. These applicants
happened to be female.
6.     Sick Leave and First Complaint of Gender
       Discrimination
       On December 14, 2014 – six weeks before what would be
his last day working at CCHCS – plaintiff stated in an email to
management that he believed he was being mistreated due to his
national origin.
       On January 28, 2015, plaintiff submitted a Discrimination
Complaint Form with the Department of Corrections and
Rehabilitation alleging not national origin discrimination but
gender discrimination.3 The complaint identified a licensed
vocational nurse by the name of Monique Nwachukwu as
responsible for the discrimination plaintiff experienced. He
alleged that he reported the discrimination to Manjula, Brooks,
and Shank.


3     The form plaintiff submitted contained 16 blank boxes, one
for each of several forms of discrimination, including national
origin. The only box plaintiff checked was “sex/gender.”

                                 6
     On January 30, 2015, plaintiff went off work on sick leave.
He did not return to Lancaster Prison. Instead, plaintiff filed a
worker’s compensation claim for stress.
7.    Plaintiff Accepts a Job with Another State
      Government Department
      On January 15, 2015, before taking his sick leave, plaintiff
applied for a position with California Department of Veterans
Affairs (CalVet). In mid-April, CalVet offered and plaintiff
accepted a permanent full-time RN position with CalVet.
       While completing an incompatibility activities policy form,
plaintiff revealed to CalVet for the first time that he wanted to
maintain his employment as a permanent part-time supervisor
registered nurse at Lancaster Prison. On May 11, 2015, CalVet
notified plaintiff that he would be unable to maintain both
positions, as the CalVet position was subject to mandatory
overtime depending on operational need.
       CCHCS learned that plaintiff had accepted a full-time
nursing position on May 11, 2015 when it received an email from
CalVet. Following the email, CCHCS transferred plaintiff’s
employment to CalVet that same day.4
8.     Equal Employment Opportunity Commission (EEOC)
       Complaint
       In the interim, in February 2015, plaintiff filed a charge
with the EEOC, in which he claimed that he was subjected to
gender discrimination. CCHCS responded substantively to the
EEOC complaint on April 11, 2015. On June 18, 2015, he
amended his EEOC complaint, to include the allegation that he
was discharged from his position at CCHCS.



4   As of June 26, 2017, well after plaintiff filed his first
amended complaint, plaintiff was still working at CalVet.

                                 7
       On October 15, 2015, plaintiff again amended his EEOC
complaint to include his claim that he was not permitted to work
for both CalVet and CCHCS, complaining that this was due to his
gender. CCHCS responded to these amended EEOC Complaints
on November 12, 2015. None of the amendments to plaintiff’s
EEOC complaint alleged discrimination on the basis of national
origin.
9.     Complaint with the State Personnel Board
       On March 7, 2016, more than a year after the filing of his
EEOC complaint, plaintiff filed a whistleblower retaliation
complaint with the State Personnel Board. On April 11, 2016,
the State Personnel Board dismissed plaintiff’s complaint.
10. Plaintiff’s Lawsuit against CCHCS
       Plaintiff filed the present lawsuit against CCHCS alleging
discrimination. The first amended complaint, dated June 14,
2016, was the operative pleading at the time of summary
judgment and alleged six causes of action. We describe in
summary fashion each of cause of action. The first alleged that
CCHCS retaliated against plaintiff after he had complained
about gender discrimination while working at Lancaster Prison.
The second alleged that CCHCS engaged in gender
discrimination by promoting less-qualified female candidates for
the supervisor positions to which he applied. In the third cause
of action, plaintiff asserted that CCHCS failed to prevent the
gender discrimination and retaliation alleged in the first two
prior causes of action.
       The fourth cause of action stated that CCHCS had
retaliated against him in violation of Labor Code, section 1102.5
after plaintiff complained about staffing and supervisory matters,
including a supposed directive allowing nurses to work for 24




                                8
hours straight.5 In the fifth cause of action, plaintiff alleged he
was retaliated under Health and Safety Code section 1278.5
when he made disclosures about the quality of patient care.6 The
final cause of action, brought under the California Whistleblower
Protection Act, asserted that plaintiff’s employment was
terminated after he made his complaints about patient care.
11. Summary Judgment
       In July 2017, CCHCS moved for summary judgment.
CCHCS argued that plaintiff’s first cause of action failed because
it was for retaliation based on a complaint of gender
discrimination, and plaintiff had not complained about gender
discrimination while working at Lancaster Prison. CCHCS also
asserted plaintiff had not been subject to an adverse employment
action.
       For the second cause of action, for the failure to promote,
CCHCS asserted that the nurses who had been selected over
plaintiff were better qualified for the job, and that plaintiff could

5     Labor Code, section 1102.5, subdivision (b) prohibits
retaliation for, among other things, disclosing information to a
person with authority over the employee or who has the authority
to investigate the disclosure “if the employee has reasonable
cause to believe that the information discloses a violation of state
or federal statute . . . .” (Lab. Code, § 1102.5, subd. (b) (italics
added).)

6      Health and Safety Code section 1278.5 states: “A health
facility shall discriminate or retaliate, in any manner, against a
patient, employee, member of the medical staff, or other health
care worker of the health facility because that person has . . . .
Presented a grievance, complaint, or report to the facility, to an
entity or agency responsible for accrediting or evaluating the
facility, or the medical staff of the facility, or to any other
governmental entity.” (Health and Saf. Code, § 1278.5,
subd. (b)(1)(A).)

                                  9
not show any connection between his gender and the failure to
promote. Next, CCHCS argued that, if the first two causes of
action failed, so did the third cause action for failure to prevent
the wrongs alleged in the first two causes of action.
       On the fourth cause of action, CCHCS argued plaintiff did
not make protected disclosures required by the Labor Code and,
therefore, could not show retaliation for the disclosures he
alleged. On the fifth cause of action, CCHCS asserted in part
that plaintiff had not complied with the presentation
requirements of the Government Claims Act. On the sixth cause
of action, CCHCS contended that plaintiff neither had made a
protected disclosure under the California Whistleblower
Protection Act, nor had he suffered an adverse employment
action within the Government Code limitations period.
       Plaintiff opposed the motion, largely relying on his own
declaration, deposition testimony, and documentary evidence to
support his gender discrimination and retaliation claims.
CCHCS replied to the opposition with argument and objections to
some of plaintiff’s evidence.
       The court heard the motion on May 4, 2018. The trial court
sustained some of CCHCS’s evidentiary objections, overruled
others, and granted CCHCS’s request of judicial notice of the
EEOC and State Personnel Board complaints. Plaintiff does not
appeal these evidentiary rulings. The court determined that no
genuine issues of material fact existed for any of six causes of
action. In a well-reasoned opinion, which we discuss in greater
detail below, the trial court granted summary judgment. On
May 31, 2018, the court entered judgment. Plaintiff moved for a
new trial; the motion was denied based on untimely service on
defendant. Plaintiff appeals.




                                10
                             DISCUSSION
       We review a trial court’s decision on summary judgment de
novo, “considering all of the evidence the parties offered in
connection with the motion (except that which the [trial] court
properly excluded) and the uncontradicted inferences the
evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001)
26 Cal.4th 465, 476.)
       “ ‘A trial court properly grants summary judgment where
no triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law.’ [Citations.] If a
defendant establishes that one or more elements of a cause of
action cannot be established or that there is a complete defense to
that cause of action, the burden shifts to the plaintiff to show
that a triable issue exists as to one or more material facts.
[Citation.] If the trial court finds that no triable issue of fact
exists, it then has the duty to determine the issue of law.
[Citations.]” (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th
381, 385.)
       “[A] summary judgment motion is directed to the issues
framed by the pleadings. [Citations.] Those are the only issues a
motion for summary judgment must address. [Citations.]”
(Hilton K. v. Greenbaum (2006) 144 Cal.App.4th 1406, 1412.) An
“appellant may not defeat a summary judgment motion by
producing evidence to support claims that are outside the issues
framed by the pleadings.” (Vournas v. Fidelity Nat. Tit. Ins. Co.
(1999) 73 Cal.App.4th 668, 674, fn. 6.)
       We address each cause of action in turn.
1.     First Cause of Action for Retaliation in Violation of
       FEHA
       The trial court concluded that plaintiff had failed to create
a triable issue of fact for retaliation under FEHA because



                                11
plaintiff did not present evidence that any claimed retaliation
resulted in an adverse employment action. We agree.
       To “establish a prima facie case of retaliation under the
FEHA, a plaintiff must show (1) he or she engaged in a ‘protected
activity,’ (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the
protected activity and the employer’s action.” (Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
       Here, plaintiff alleged in the first amended complaint that
that he “complained about his supervisor engaging in
discriminatory and retaliatory behavior, based upon [his]
complaints about gender,” and that as a result of the “protected
activities in complaining about his supervisor’s sexist words
and/or actions,” he was retaliated against.
       The undisputed evidence showed that plaintiff did not
complain to his supervisors about gender-based discrimination
during his tenure at Lancaster prison. As the trial court
observed, the evidence plaintiff presented “indicates that [his]
complaint[s] to [CCHCS] were about national origin
discrimination or nepotism . . . and not gender discrimination.”
Plaintiff’s April 10, 2014 memo stated: “I’m trying hard to find
the reason behind the bigotry I am being subjected to. I can come
up with only two reasons: my national origin or nepotism.” As
late as December 14, 2014, weeks before he stopped physically
working at Lancaster Prison, plaintiff asserted that he was being
subjected to “discrimination based on my national origin.”
       Plaintiff argues that the April 10, 2014 memo was
sufficient because it complained of discrimination. The document
complained of national origin discrimination, and plaintiff did not
plead national origin discrimination in his first amended
complaint. “ ’The pleadings delimit the issues to be considered on
a motion for summary judgment. [Citation.]’ [Citation.] Thus, a

                                12
‘defendant moving for summary judgment need address only the
issues raised by the complaint; the plaintiff cannot bring up new,
unpleaded issues in his or her opposing papers.’ ” (Laabs v. City
of Victorville (2008) 163 Cal.App.4th 1242, 1253 (Laabs).) “If the
opposing party’s evidence [to a motion for summary judgment]
would show some factual assertion, legal theory, defense or claim
not yet pleaded, that party should seek leave to amend the
pleadings before the hearing on the summary judgment motion.”
(Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265.)
       As the trial court pointed out at the hearing, plaintiff did
not seek to amend his pleadings to include the national origin
discrimination claim. Plaintiff was thus limited to the gender
discrimination allegations of his first amended complaint.
Plaintiff’s 2014 memos and emails failed to satisfy the first
element of this cause of action.
       Plaintiff is correct that his January 28, 2015 EEOC
complaint alleged gender discrimination. Yet, as the trial court
observed, the timing of this complaint negates any claim that
CCHCS retaliated against plaintiff on the basis of gender.
Plaintiff left work on sick leave on January 30, 2015. CCHCS did
not have notice of the EEOC complaint until February 2015. For
plaintiff to prevail on a claim of gender retaliation as alleged in
his complaint, he was required to show an adverse employment
action occurred after he had made his gender-based complaints.
In his opening brief on appeal, plaintiff points to several adverse
employment actions: denial of overtime, reduction in hours,
assignments to undesirable and long shifts, and failure to
promote. But plaintiff conveniently ignores that none of these
claimed adverse actions were in response to a complaint about
gender discrimination. At the time of these events, plaintiff had
complained only of national original discrimination, a claim not
alleged in the first cause of action.

                                13
       The only alleged act of retaliation after the January 28,
2015, EEOC notice was on May 11, 2015, when, as plaintiff puts
it, he “was terminated from employment for accepting an
additional appointment.”
       But the uncontroverted evidence was that CCHCS did not
terminate plaintiff at all. While out on sick leave, plaintiff on his
own chose to take a full-time position with another state
department, CalVet. When advised that plaintiff had accepted a
new job, CCHCS dutifully transferred his employment to the new
department. Plaintiff argues that he was not voluntarily
transferred because he wanted to hold both positions. It may be
true that he hoped to maintain dual employment but that was
not available under state personnel guidelines.
       A CalVet personnel officer attested that plaintiff would not
have been permitted to hold both, and that CalVet would not
have offered plaintiff the position if it had known he had
intended to keep his job at CCHCS. She explained: “As the only
RN at the facility, [plaintiff] may be subject to mandatory
overtime depending on operational need.” This was the same
policy in effect at Lancaster Prison when plaintiff worked there,
and was at least one of the reasons behind his decision not to
accept a different full-time job in December 2013.
       Nothing in plaintiff’s summary judgment papers negated
the evidence that his acceptance of the CalVet job constituted a
voluntary relinquishment of his job at Lancaster Prison. Nor
does the record reflect that when he realized his mistake at
CalVet, he asked to return to his CCHCS part time position. His
unauthenticated belief, expressed in his deposition, that he could
hold both positions was not evidence of that claim. (Guthrey v.
State of California (1998) 63 Cal.App.4th 1108, 1118 [speculation
that discrimination occurred is insufficient to create triable issue
of material fact on summary judgment].)

                                 14
       We agree with the trial court that plaintiff did not create a
triable issue of fact as to the first cause of action.
2.     Second Cause of Action for Gender Discrimination in
       Violation of FEHA
       Plaintiff’s second cause of action alleged gender
discrimination in violation of FEHA. To establish a prima facie
case of discrimination, a plaintiff must show that: “(1) he was a
member of a protected class, (2) he was qualified for the position
he sought or was performing competently in the position he held,
(3) he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some
other circumstance suggests discriminatory motive.” (Guz v.
Bechtel National Inc. (2000) 24 Cal.4th 317, 355 (Guz).) In the
summary judgment context, the employer can attack one of these
elements or show that the adverse employment action was based
upon legitimate, nondiscriminatory factors. (Galvan v. Dameron
Hospital Assn. (2019) 37 Cal.App.5th 549, 559.) “ ’If the employer
meets its initial burden, the burden shifts to the employee to
“demonstrate a triable issue by producing substantial evidence
that the employer’s stated reasons were untrue or pretextual, or
that the employer acted with a discriminatory animus, such that
a reasonable trier of fact could conclude that the employer
engaged in intentional discrimination or other unlawful
action.” ’ ” (Ibid.)
       Plaintiff’s second cause of action alleged that CCHCS
“specifically” discriminated against plaintiff by promoting “less
qualified female candidates for supervisor positions that Plaintiff
was eligible for and expressed interest in.”
       In moving for summary judgment, CCHCS provided
evidence of its legitimate businesses reasons for the promotion
decisions. Plaintiff had applied for two full-time supervisor
registered nurse II promotions that became available in early

                                15
2014. A single interview process was conducted for these two
positions and seven people (including plaintiff) were interviewed
before a panel. The highest-scoring and second-highest applicant
scores were 37 and 33 (out of a possible 51 points), and those two
applicants were offered the two available positions. Plaintiff
scored 27 out of a 51. Because plaintiff was not the highest
scoring or second-highest scoring applicant, he was not offered
either of the two available positions. The uncontroverted
evidence was that CCHCS acted in accordance with its “pattern
and practice” to offer positions to the highest scoring applicant.
       A third full-time supervisor registered nurse II position
became available in October 2014, and plaintiff applied. A panel
interviewed all candidates. The successful applicant for this
position scored 37 out of a maximum possible 57 points; plaintiff
was the second-highest scoring applicant, with a score of 30.
Consistent with CCHCS’ practice, the candidate with the highest
score during the interviews, not plaintiff, was offered the
position.
       In response, plaintiff asserted that the promotions were
based on gender and cited his deposition testimony, in which he
testified that he believed he was better qualified for the position.
As the trial court concluded, “Even when viewed in the light most
favorable to Plaintiff, Plaintiff’s self-serving deposition testimony
is insufficient to demonstrate discriminatory motive or to
demonstrate that [CCHCS]’s offered reason for denying him the
promotions was not legitimate.” A “plaintiff’s subjective beliefs in
an employment discrimination case do not create a genuine issue
of fact; nor do uncorroborated and self-serving declarations.”
(King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426,
433.)
       Plaintiff argues that in addition to being passed over for
promotions, he was denied overtime, suffered discipline and

                                 16
verbal abuse, was given a less desirable schedule, and was
terminated as a result of the discrimination. He did not plead
any of these adverse actions in his second cause of action which
was “specifically” based on the failure to promote. (See Laabs,
supra, 163 Cal.App.4th at p. 1258.) The trial court correctly
concluded no triable issue of fact existed as to the second cause of
action.
3.     Third Cause of Action for Failure to Prevent
       Discrimination and Retaliation Under FEHA
       The third cause of action for failure to prevent
discrimination and retaliation, brought under Government Code
section 12940, subdivision (k), incorporated the discrimination
and retaliation claims of the first two causes of action. “An
actionable claim under section 12940, subdivision (k) is
dependent on a claim of actual discrimination: ‘Employers
should not be held liable to employees for failure to take
necessary steps to prevent such conduct, except where the actions
took place and were not prevented.’ ” (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1021.) We agree with the
trial that the third cause of action must fail because plaintiff did
not show that the underlying discrimination and retaliation
occurred.
4.     Fourth Cause of Action for Retaliation in Violation of
       Labor Code Section 1102.5
       Labor Code, section 1102.5, subdivision (b) prohibits
retaliation “for disclosing information” to a person with authority
over the employee or another employee who has the authority to
investigate the matter disclosed “if the employee has reasonable
cause to believe that the information discloses a violation of state
or federal statute . . . .”
       To establish a prima facie case of retaliation, a plaintiff
must show: “(1) she engaged in a protected activity, (2) her

                                17
employer subjected her to an adverse employment action, and
(3) there is a causal link between the two.” (Patten v. Grant Joint
Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384
(Patten).) The employee must “reasonably believe [he] was
disclosing a violation of state or federal law.” (Id. at p. 1386.)
       Here, the trial court concluded that plaintiff did not present
evidence that he engaged in a protected activity. We agree.
       Although plaintiff raised a variety of protected activities in
opposition to summary judgment, he argues only a single alleged
protected activity on appeal. Plaintiff asserts that he was
retaliated against after reporting “labor violations when
[Supervisor] Brooks authorized employees to work more than 24
consecutive hours.”
       The undisputed facts show that on July 24, 2014, plaintiff
sent an email complaint to management regarding a directive he
received from supervisor Brooks. He indicated Brooks’s directive
suggested that staff members could work 24 hours straight if the
staff member chose to do so. Plaintiff stated he refused to comply
because he “believed this directive to be unlawful.”7
       The record does not reveal that Brooks’s directive was
unlawful. Title 8, California Code of Regulations section 11040,
subdivision (3)(B)(10), allows for employees to voluntarily agree
to work a 24-hour shift. That section provides: “Provided further
that no employee shall be required to work more than 16 hours in
a 24 hour period unless by voluntary mutual agreement of the
employee and the employer, and no employee shall work more

7     Plaintiff received a response to his email complaint less
than an hour later, which said that “Management” was
“addressing the concerns he had brought forward.” The next day,
Brooks provided a memorandum clarifying that, “staffs [sic] may
not be required or volunteer to work . . . more than 16 hours of
overtime within a 24 hours work day.”

                                 18
than 24 consecutive hours until said employee receives not less
than eight (8) consecutive hours off duty immediately following
the twenty-four consecutive hours of work.” (Cal. Code Regs.,
tit. 8, § 11040, subd. (3)(B)(10).)
        It is true that plaintiff complained about the practice, but it
was not about illegal activity. Even in his email, plaintiff stated
only that he felt the directive violated “ethics and common law.”
Yet, feelings, without any basis in law, do not amount to
reasonable beliefs. “ ‘To have a reasonably based suspicion of
illegal activity, the employee must be able to point to some legal
foundation for his suspicion—some statute, rule or regulation
which may have been violated by the conduct he disclosed.’ ”
(Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592
(Ross).)
        Plaintiff did not direct the trial court’s attention to any
statute, rule or regulation that formed his belief that the 24-hour
voluntary shift was illegal, nor did he do so in his opening brief
here. Even when defendant challenged plaintiff on this point in
respondent’s brief, plaintiff’s reply was limited to the “ethics and
the common law” point he made in his email, and a generalized
argument that he believed the extended shift was illegal. The
trial court correctly concluded that the absence of any protected
activity was fatal to plaintiff’s fourth cause of action.
        Citing Yanowitz, supra, 36 Cal.4th at page 1043, plaintiff
argues that “even if it were accepted that [plaintiff]
misunderstood Brooks’ directive, retaliation is nonetheless
unlawful so long as [plaintiff] reasonably and in good faith
believed Brooks’ directive authorized an unlawful act.” Yanowitz
addressed a FEHA retaliation claim, not a Labor Code section
1102.5, subdivision (b) retaliation claim. The difference is
significant.



                                  19
       Under FEHA, it is unlawful for “any employer . . . 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.” (Gov. Code, § 12940,
subd. (h).) This statute has no requirement that the employee
have a reasonable belief that a state or federal statute has been
violated by the employer. Implied is a reasonable belief that the
employer’s conduct was discriminatory. (Yanowitz, surpa,
36 Cal.4th at p. 1043.)
       In contrast, Labor Code, section 1102.5, subdivision (b)
expressly requires the employee to have “reasonable cause to
believe that” he is disclosing “a violation of state or federal
statute.” Courts have interpreted this to require the employee to
“ ‘to point to some legal foundation for his suspicion—some
statute, rule or regulation which may have been violated by the
conduct he disclosed.’ ” (Ross, supra, 36 Cal.App.5th at p. 592;
Patten, supra, 134 Cal.App.4th at pp. 1384-1385; Chin et al., Cal.
Prac. Guide Employment Litigation (The Rutter Group 2019)
Ch. 2(II)-B, § 5:1750.)
       To the extent that plaintiff asserts “he reasonably and in
good faith believed Brooks’ directive authorized an unlawful act,”
plaintiff pointed to no legal foundation to provide good faith for
his suspicion and produced no evidence that he had reasonable
cause for that belief. That plaintiff actually believed Brooks
authorized an unlawful act is simply insufficient to prove a
violation of Labor Code section 1102.5. Plaintiff created no
triable issue of material fact on the fourth cause of action.
5.     Fifth Cause of Action for Retaliation in Violation of
       Health and Safety Code Section 1278.5
       In the fifth cause of action, plaintiff alleged that, as a
“health facility,” CCHCS “violated Health & Safety Code

                                 20
[section] 1278.5 by terminating his employment in retaliation for
the complaints he made to [CCHCS] about the quality of patient
care and patient safety issues as well as his refusal to falsely
document medical records through the inclusion of false
information.”
       Under the Government Claims Act, a party cannot bring
suit for “money or damages” against a public entity unless “a
written claim therefor has been presented to the public entity
and has been acted upon by the board, or has been deemed to
have been rejected by the board.” (Gov. Code, § 945.4; see Gov.
Code, § 905.2, subd. (b)(3).) Under Government Code section
945.4, “presentation of a timely claim is a condition precedent to
the commencement of suit against a public entity.” (Munoz v.
State of California (1995) 33 Cal.App.4th 1767, 1776–1777.) To
be timely, a claim of this sort must be filed with what is now the
Department of General Services’s Government Claims Program
within six months of the accrual of the action. (Gov. Code,
§ 911.2.)
       Plaintiff did not allege that he complied with the
Government Claims Act, and did not provide a copy of any claim.
Plaintiff’s failure to file a claim under the Government Claims
Act is dispositive of the fifth cause of action.
       Plaintiff argues that his March 7, 2016 whistleblower
retaliation complaint filed with the State Personnel Board was
the functional equivalent of filing a claim under the Government
Claims Act. Plaintiff cites Cornejo v. Lightbourne (2013)
220 Cal.App.4th 932, 941 (Cornejo), for support of his argument
that because “this claim was duly presented to a State
administrative procedure, [sic] the purposes of the Government
Claims Act have been met and no provision of the Act bar
[plaintiff’s] claim on this point.”



                                21
        Cornejo is inapt as it addressed a claim brought, not under
Health and Safety Code section 1278.5, but rather under the
California Whistleblower Protection Act (WPA) (Gov. Code,
§ 8547, et seq.). (Cornejo, supra, 220 Cal.App.4th at p. 937.) The
Cornejo plaintiff contended that the WPA was not subject to the
Government Claims Act procedure “because [the WPA] has a
comprehensive administrative procedure that satisfies the
purposes of the presentation procedure in the [Government]
Claims Act.” (Ibid.) The Cornejo court agreed that claims
brought under the WPA specifically were not subject to the
Government Claims Act procedures; the court limited its holding
to WPA claims. (Id. at pp. 938-942.)
        As the court explained: “Ordinarily, filing a claim with a
public entity pursuant to the [Government] Claims Act is a
jurisdictional element of any cause of action for damages against
the public entity.” (Cornejo, supra, 220 Cal.App.4th at p. 938.)
The court recognized that while there are “certain types of claims
. . . expressly exempted from the presentation requirement,” none
of which are at issue here, “a court will infer a legislative intent
to excuse compliance only where a claim is based on a statutory
scheme with a ‘functionally equivalent claim process’ and a
comparable scheme for administrative enforcement.” (Ibid.) The
court observed, “Such exceptions to the presentation procedure
are rarely found,” (ibid.) and that “other than a vintage decision
. . . involving a somewhat obscure flood repair law [the
Emergency Flood Relief Act],” the “only claims to date found
exempt from the presentation requirement . . . are those arising
under the FEHA.” (Id. at p. 939.) The court added claims
brought under the WPA to the limited list of claims exempt from
the presentation requirement based on the WPA’s own
comprehensive administrative procedure. (Id. at pp. 942-943.)



                                22
       In contrast, Health and Safety Code section 1278.5 (under
which plaintiff brings the fifth cause of action) is not part of a
statutory scheme with a “functionally equivalent claim process”
and scheme for enforcement comparable to the Government
Claims Act. Plaintiff cites no law showing otherwise, and we
agree with the trial court that the failure to present a
Government Claim doomed the fifth cause of action.
6.     Sixth Cause of Action for Violation of the WPA
       Plaintiff’s Sixth Cause of Action for violation of the
Whistleblower Protection Act (WPA), Government Code section
8547, alleged that CCHCS “violated the [WPA] by terminating
his employment in retaliation for the complaints he made to
[CCHCS] about the quality of patient care and patient safety
issues as well as his refusal to falsify document medical records
through the inclusion of false information.”
       For a Government Code section 8547 retaliation claim,
plaintiff was required to plead (1) he engaged in a protected
activity; (2) he was subjected to an adverse action by his
employer; and (3) a causal connection between the two. (Morgan
v. Regents of University of the University of California (2000)
88 Cal.App.4th 52, 69.) The retaliatory motive may be shown by
evidence “that plaintiff engaged in protected activities, that his
employer was aware of the protected activities, and that the
adverse action followed within a relatively short time thereafter.”
(Id. at p. 69.)
       The sole adverse action plaintiff alleged in his sixth cause
of action – and the only action argued on appeal – in retaliation
for his filing of his State Personnel Board Complaint on March 7,
2016 was his “termination.”
       As we have already discussed, plaintiff was not terminated,
but rather transferred to CalVet for his own reasons. That
plaintiff did not understand that his voluntary assumption of the

                                23
CalVet nurse’s position precluded his working for CCHCS at
Lancaster Prison did not convert his unforced job change into a
wrongful termination.
      The trial court’s ruling on the sixth cause of action was
correct.
                          DISPOSITION
      The judgment is affirmed. Defendant California
Correctional Health Care Services is awarded costs on appeal.




                                         RUBIN, P.J.
I CONCUR:



            MOOR, J.




                               24
Kuigoua v. California Corrections Health Care Services et al.
B291984



BAKER, J., Concurring



       I join the majority’s opinion with the exception of Part 4 of
the Discussion. I believe summary adjudication of plaintiff Arno
Kuigoua’s fourth cause of action for whistleblower retaliation was
warranted because there is no substantial evidence of causation
in the summary judgment record. (Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 162-163 [“in order to avert summary judgment
the plaintiff must produce substantial responsive evidence
sufficient to establish a triable issue of material fact on the
merits of the defendant’s showing”]; see also Hager v. County of
Los Angeles (2014) 228 Cal.App.4th 1538, 1540 [“The plaintiff
must show he engaged in protected activity, his employer
subjected him to an adverse employment action, and there is a
causal link between the two”].)




                            BAKER, J.
