SAAD ISMAIL v. NORTHBAY HEALTHCARE GROUP, INC. and NORTHBAY HEALTHCARE FOUNDATION

Case No. CU25-01681

Defendants’ Motion for Judgment on the Pleadings

Defendants NORTHBAY HEALTHCARE GROUP, INC. and NORTHBAY HEALTHCARE FOUNDATION move for judgment on the pleadings against the first cause of action within Plaintiff SAID ISMAIL’s complaint, alleging whistleblower retaliation in violation of Health and Safety Code section 1278.5. Defendants contend that the claim is time-barred.

Health and Safety Code section 1278.5 permits a civil plaintiff to bring an action for whistleblower retaliation under its subdivision (g). (Shaw v. Superior Court (2017) 2 Cal.5th 983, 996 (Shaw).) The statute does not state a limitations period applicable to this action. Code of Civil Procedure section 338, subdivision (a), providing a three-year statute of limitations generally for actions founded upon a liability described in a statute, applies. Plaintiff was terminated from employment with Defendants on March 17, 2022. He filed the instant action on February 20, 2025. His claim is timely.

Melamed v. Cedars-Sinai Medical Center (2017) 8 Cal.App.5th 1271 (Melamed) offers no relevant, citable holding. Though the Second District Court of Appeal muses at pages 1287-1288 that a one-year statute of limitations under Code of Civil Procedure section 340, relating to an action upon a statute for a penalty, “may” be appropriate for Health and Safety Code section 1278.5, subdivision (g) claims it also states “we need not, and do not, decide which limitations period is appropriate.” A case is not valid authority for a point not decided. (In re Chavez (2003) 30 Cal.4th 653, 656.)

The court declines to independently follow Melamed’s reasoning. While Health and Safety Code section 1278.5, subdivision (b)(3) states that there is a mandatory civil penalty for violations of the section, Shaw spells out that Health and Safety Code section 1278.5 has “three distinct remedial provisions” for violations: one creating a civil penalty, one creating a misdemeanor, and one creating a civil judicial action. (Shaw, supra, 2 Cal.5th at p. 996.) Defendants’ argument inspired by Melamed that a civil judicial action under one distinct provision must effectively also be an action for a penalty under a different distinct provision does not follow any more than an argument that a civil judicial action also seeks to convict the defendant of a criminal misdemeanor would.

The “three distinct provisions” are distinctly enforced through administrative processes for the civil penalty, criminal court processes for the misdemeanor, and civil court processes for the civil action.

The court finds that the three-year statute of limitations of Code of Civil Procedure section 338, subdivision (a) applies to Plaintiff’s cause of action for violation of Health and Safety Code section 1278.5. Plaintiff’s claim is therefore timely. Defendants’ motion is denied.

AFFONSO v. Z GOLF FOOD & BEVERAGE SERVS., LLC, ET AL.