Lisa Hall vs. State of California (Department of Consumer Affairs; Board of Registered Nursing)

34-2021-00311462-CU-OE-GDS: Lisa Hall vs. State of California (Department of Consumer Affairs; Board of Registered Nursing) 07/18/2024 Hearing on Demurrer in Department 54

Tentative Ruling

Defendant Board of Registered Nursing’s (“Defendant”) demurrer to plaintiff Lisa Hall’s (“Plaintiff”) Second Amended Complaint (“2AC”) is ruled upon as follows.

Request for Judicial Notice

Defendant’s request for judicial notice of the State Personnel Board Determination on Merit Issue Complaint, dated September 30, 2020, is GRANTED. (See CR. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1102-03 (permitting judicial notice of Department of Health Services annual licenses, and citing other cases in which courts judicially noticed state administrative agency records and files); see also Evidence Code §§ 452, subd. (h) & 453.) In taking judicial notice of these documents, the Court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590 (judicial notice of findings of fact does not mean that those findings of fact are true); Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

Factual and Procedural Background

This action arises out of Plaintiff’s employment with Defendant. Plaintiff has worked as a Probation Monitor with Defendant for more than ten years. (2AC ¶ 5.) In October 2019, Plaintiff, who identifies as a female Caucasian, applied for a Probation Manager position with Defendant. (Ibid.) Plaintiff advanced to the second round of interviews, but learned in December of 2019 that another candidate, Jaspreet Pabla, who is assumed to be of Indian descent, was selected for the position. (2AC ¶¶ 8, 10.) Plaintiff then filed a Merit Issue Complaint (“MIC”) with the State Personnel Board (‘‘SPB”). (2AC ¶ 11.)

The SPB performed an investigation and determined that Plaintiff had failed to prove Defendant violated any civil service or employment laws or policies in its’ hiring process. (RJN, at p. 12.)

Plaintiff then began to attend and speak at Defendant’s Board Meetings. (2AC ¶ 13.) Plaintiff alleges that throughout 2020 she spoke out about “ethical issues” and “illegal hiring practices at BRN.’’ (2AC ¶¶ 13, 15.) Plaintiff further alleges that the Board “‘removed” the public comments portion of a meeting in February 2020 that she attended for the purpose of speaking. (2AC ¶ 16.)

Plaintiff also participated in an EEO investigation and was interviewed about former Executive Officer Joseph Morris’ conduct and treatment of employees. (2AC ¶ 17.) Plaintiff claims she “learned that a Board member gave a directive to executive staff to

34-2021-00311462-CU-OE-GDS: Lisa Hall vs. State of California (Department of Consumer Affairs; Board of Registered Nursing) 07/18/2024 Hearing on Demurrer in Department 54

prevent the promotion of those who were speaking out about EEO violations at BRN.” 2AC ¶ 18.) As a result, Plaintiff alleges she “fear[ed] retaliation, including nonpromotion, or even termination by BRN.” (Ibid.)

Plaintiff filed her original Complaint on November 18, 2021. Plaintiff then filed a First Amended Complaint on July 22, 2022. Plaintiff then moved for and obtained leave of Court to file the operative 2AC. Plaintiff filed the 2AC on July 20, 2023. The 2AC alleges causes of action for: (1) race discrimination; (2) violation of Labor Code section 1102.5; (3) retaliation; (4) sex discrimination; (5) violation of 42 U.S.C. section 1983 (free speech); (6) violation of Article VII, Section 1 of the California Constitution; and (7) petition for writ of mandate pursuant to Code of Civil Procedure section 1085.

Defendant demurs to the second cause of action for violation of Labor Code section 1102.5, the third cause of action for FEHA retaliation, the sixth cause of action for violation of Article VII, Section 1 of the California Constitution, and Plaintiff’s petition for writ of mandate pursuant to Code of Civil Procedure section 1085 on the grounds Plaintiff has failed to allege facts sufficient to constitute a cause of action.

Legal Standard

The function of a demurrer is to test the sufficiency of the pleading it challenges by raising questions of law. (Salimi v. State Comp. Ins. Fund (1997) 54 Cal.App.4th 216, 219; Nordlinger v. Lynch (1990) 225 Cal.App.3d 1259, 1271.) A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 Cal. 481, 482.)

For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice. (Code Civ. Proc. § 452; Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7.) In this respect, the Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law, and considers matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00311462-CU-OE-GDS: Lisa Hall vs. State of California (Department of Consumer Affairs; Board of Registered Nursing) 07/18/2024 Hearing on Demurrer in Department 54

some relief . . ., we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 696-697.) The sole issue raised by a general demurrer is whether the facts pled state a valid cause of action, not whether they are true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Violation of Labor Code Section 1102.5 and FEHA Retaliation

To state a claim for whistleblower retaliation under Labor Code Section 1102.5, Plaintiff must allege: (1) she engaged in a protected activity (i.e., the disclosure of a violation of state or federal law), (2) she was thereafter subjected to an adverse employment action, and (3) a causal link between the protected act and the adverse employment action. (Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141, citing Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69; Mueller v.

County of Los Angeles (2009) 176 Cal.App.4th 809, 821-22.) Similarly, to establish a prima facie case of retaliation, the plaintiff must show (1) she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)

Defendant contends this claim fails because Plaintiff’s alleged protected activity is that she spoke out at meetings about various topics and participated in an EEO investigation (2AC ¶¶ 11, 13, 15, 17), but she fails to allege any adverse employment action that occurred following this alleged protected activity. Instead, the only alleged adverse employment action is that she was not promoted in December of 2019, which occurred prior to the alleged protected activity.

In opposition, Plaintiff contends her allegation that she “learned that a Board member gave a directive to executive staff to prevent the promotion of those who were speaking out about EEO violations at BRN” constitutes the “adverse employment action” because that directive “would obviously impair” her prospects for promotion. (2AC ¶ 18; Opposition at 2:24-26.)

An adverse employment action materially affects the terms, conditions or privileges of employment, and must be likely to impair a reasonable employee's job performance or prospects for advancement or promotion. (See Akers v. County of San Diego (2002) 95 Cal.App.4th at 1455 ('[T]o be actionable, the retaliation must result in a substantial adverse change in the terms and conditions of the plaintiff's employment. A change that is merely contrary to the employee's interest or not to the employee's liking is insufficient.'). Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00311462-CU-OE-GDS: Lisa Hall vs. State of California (Department of Consumer Affairs; Board of Registered Nursing) 07/18/2024 Hearing on Demurrer in Department 54

the level of a materially adverse employment action. (Thomas v. Dep't. of Corrections (2000) 77 Cal.App.4th 507, 510.) Moreover, '[t]he employment action must be both detrimental and substantial.' (Id.)

The Court disagrees with Plaintiff that she has sufficiently alleged an adverse employment action that is causally connected to her protected activity. Here, Plaintiff alleges that she engaged in protected activity by speaking out at meetings about Defendant’s alleged illegal hiring practices. However, she has failed to allege that she was thereafter subjected to an adverse employment action. Plaintiff’s allegation regarding the directive from a Board member to executive staff regarding promotions is not an adverse employment action. Nowhere does Plaintiff allege this alleged directive actually resulted in her being denied a promotion she was otherwise qualified for.

Defendant’s demurrer is SUSTAINED, but with leave to amend as this is the first challenge to the pleading and Plaintiff contends she can plead two promotional denials that occurred after her protected activity.

Violation of Article VII, Section 1 of the California Constitution

Plaintiff alleges that under Article VII, Section 1 of the California Constitution, she “was entitled to receive a merit-based promotional decision from Defendant with regard to the selection decision at issue in this case. She did not. Thus, Defendant violated Plaintiff’s constitutional rights causing her damages.” (2AC ¶ 55.) Plaintiff seeks monetary and injunctive relief. (2AC ¶¶ 56-58.)

Defendant demurs on the ground that “Article VII, Section 1 does not create a separate right of action for money damages. Additionally, Hall is not entitled to an injunction or declaratory relief because she has already availed herself of the procedures set forth to ensure compliance with the constitutional provision.” (Demurrer at 10:20-23.) In support, Defendant cites to Katzberg v. v. Regents of University of California (2002) 29 Cal.4th 300.

Plaintiff does not oppose the demurrer on this ground and contends her proposed Third Amended Complaint, which is attached to her opposition, does not contain this cause of action. The Court construes this as a concession on the merits and an agreement to withdraw the cause of action. Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend.

Petition for Writ of Mandate

Defendant demurs to Plaintiff’s petition for writ of mandate pursuant to Code of Civil

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00311462-CU-OE-GDS: Lisa Hall vs. State of California (Department of Consumer Affairs; Board of Registered Nursing) 07/18/2024 Hearing on Demurrer in Department 54

Procedure section 1085 on the grounds it fails to state facts sufficient to constitute a cause of action because the petition is not verified as required by Code of Civil Procedure section 1086, it is not the proper avenue for review of a civil service hiring decision, and money damages are not available.

Indeed, Plaintiff could have sought writ review of the SPB’s decision, but she did not. “An aggrieved civil service employee must use all agency administrative procedures, including available appellate review. before otherwise resorting to the courts.' (Valenzuela v. State of California (1987) 194 Cal.App.3d 916. 920.) Further, Plaintiff is improperly seeking damages through a writ petition.

Plaintiff does not oppose the demurrer on this ground and contends her proposed Third Amended Complaint, which is attached to her opposition, does not contain this cause of action. The Court construes this as a concession on the merits and an agreement to withdraw the cause of action. Accordingly, Defendant’s demurrer is SUSTAINED without leave to amend.

Conclusion

Defendant’s demurrer to the second cause of action for violation of Labor Code section 1102.5 and the third cause of action for FEHA retaliation is SUSTAINED with leave to amend.

Defendant’s demurrer to the sixth cause of action for violation of Article VII, Section 1 of the California Constitution, and Plaintiff’s petition for writ of mandate pursuant to Code of Civil Procedure section 1085 is SUSTAINED without leave to amend.

Where leave to amend has been granted, Plaintiff may file and serve a Third Amended Complaint (“3AC”) no later than August 1, 2024. Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the Third Amended Complaint.

Defendant may file and serve a response within 30 days of service of the Third Amended Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to California Rules of Court, Rule 3.1312, or further notice is required.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00311462-CU-OE-GDS: Lisa Hall vs. State of California (Department of Consumer Affairs; Board of Registered Nursing) 07/18/2024 Hearing on Demurrer in Department 54

with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will be provided.