JOHNSON, J. I respectfully dissent.
The issue before us is whether the plaintiff in a common law action for wrongful discharge in violation of public policy should be judicially required to resort to her employer’s internal grievance procedure when no statute, contractual provision, or pertinent public policy requires her to do so.1 I would decline to impose such a requirement under the facts and circumstances of this case and would therefore reverse the judgment for defendants.
Under section 70 of the Regents’ Personnel Policies for Staff Members (PPSM), an employee may complain of “a specific management act which is [911]alleged to have adversely affected the employee’s existing terms or conditions of employment” or a management action which violates a provision of the PPSM. Accompanying these two types of complaints is a detailed internal review and appeal process. The PPSM contains a policy against “reprisal or intimidation due to disclosure of improper governmental activities,” i.e., whistleblowing.
In addition to the PPSM, the UCLA manual on Procedures for Reporting Whistle Blowing Complaints (UCLA Procedures) contains its own detailed remedial scheme for employees “alleging threatened or actual interference or retaliation resulting from the reporting of improper activities.” The latter scheme involves a confidential complaint process and the enlistment of a “whistleblowing adviser.”
The crux of the Regents’ argument is that the PPSM and the UCLA Procedures contain administrative and internal remedies which must be exhausted before an aggrieved employee may sue in court over an alleged wrongful termination. It is not clear from the Regents’ brief whether they believe Patricia A. Palmer was required to exhaust one or both of these internal grievance procedures before filing suit for wrongful discharge in violation of public policy.
For her part, Palmer does not contend the Regents’ internal grievance procedures are unavailable or inadequate for adjudicating a claim of wrongful discharge in violation of public policy. Rather, she contends these internal procedures are options afforded to university employees who may or may not elect to make use of them in pursuing a claim for wrongful termination.
California courts have long recognized “where a statutory remedy is provided for a preexisting common law right, the newer remedy is generally considered to be cumulative, and the older remedy may be pursued at the plaintiffs election.”2 For the reasons explained below I see no reason why the general rule applicable to statutory remedies should not also apply to the Regents’ and UCLA’s administrative remedies.
While the public policy violated in a common law wrongful termination cause of action must be “tethered to” a constitutional or statutory provision, the cause of action itself is a judicially recognized common law cause of [912]action which precedes the Regents’ whistleblower policy by several decades.3 As discussed in the majority opinion, Palmer claims she was discharged for reporting violations of law in the hospital laboratory to defendants and others. This presents a classic Tameny cause of action for discharge in violation of public policy.4 Thus, under the general rule described above, absent a specific exhaustion requirement in the PPSM or UCLA Procedures, the grievance procedures contained therein are cumulative, not exclusive.5
I recognize that in certain situations courts have held an employee alleging wrongful termination must exhaust available administrative remedies or internal grievance procedures before seeking tort damages in court. This exhaustion requirement applies, for example, when the employee alleges a statutory cause of action and the statute contains an administrative remedy;6 when the employee is covered by a collective bargaining agreement which [913]contains an applicable grievance procedure;7 and when the employee is a party to an employment contract which requires arbitration or grievance of the alleged wrongful termination.8 I would further concede under principles derived from the “primary jurisdiction” doctrine, an employee without a contractual or statutory obligation to exhaust her employer’s internal grievance procedure may be required to do so before proceeding with her lawsuit if the employer has a “ ‘pervasive and self-contained system of administrative procedure’ ” for resolving the grievance and the facts in issue are “of a complex or technical nature” calling for the application of the employer’s special expertise and judgment.9
None of these grounds for requiring exhaustion of internal remedies apply here. Palmer is not asserting a statutory cause of action or one founded on the PPSM or UCLA Procedures. I have searched the record for any evidence of a collective bargaining agreement or employment contract which would require Palmer to exhaust the Regents’ internal grievance procedures and have found none.10 Nor have I found any statute which would require exhaustion of the Regents’ internal procedures before bringing a common law wrongful termination claim based on violation of public policy.11 Indeed, I have found no language in the PPSM or UCLA Procedures themselves which obligates an employee to avail herself of those procedures before suing on a common law cause of action for wrongful discharge in violation of public policy. Furthermore, the principles underlying the doctrine of primary jurisdiction do not support submission of Palmer’s wrongful termination claim to the Regents for preliminary adjudication.
The Regents offer three reasons why Palmer was required to exhaust their internal grievance procedures.
[914]They principally rely on the Westlake Community Hosp. line of cases,12 including Edgren v. Regents of University of California,13 for the proposition that if an employer makes an internal remedy available to resolve a dispute the employee must exhaust such remedy before resorting to litigation.
Westlake was not an employment case and was not decided on employment law principles. It was a case involving admission to a private hospital medical staff and was decided on principles of law pertaining to private voluntary associations.14
The exhaustion issue in Westlake arose in the context of the plaintiff doctor’s suit against a codefendant, Los Robles Hospital, for damages resulting from denial of hospital staff privileges. The Westlake defendants moved for summary judgment on the ground the plaintiff had not exhausted Los Robles’ internal grievance procedure.15 When the trial court denied the motion, the Westlake defendants sought a writ of prohibition to restrain the trial court from proceeding with the plaintiffs action.16 The Supreme Court held “a doctor who has been denied hospital staff privileges must exhaust all available internal remedies before instituting any judicial action, including an action seeking only damages.”17 The court denied the writ, however, because the defendants’ affidavits did not establish Los Robles provided an available remedy which the plaintiff failed to exhaust.18
In reaching its holding in Westlake, the Supreme Court concluded the principles underlying the doctrine of primary jurisdiction require a doctor challenging her exclusion from staff privileges at a private hospital to resort to the hospital’s internal grievance procedures even though the doctor had no contractual or statutory obligation to do so. The Regents contend the trial court here properly followed Westlake in holding Palmer was required to submit her wrongful termination claim to the Regents’ grievance procedure. They point to Edgren v. Regents of University of California, which reached a similar conclusion with respect to a university employee who did not exhaust [915]the Regents’ grievance procedure in challenging his termination from employment.19
The doctrine of primary jurisdiction comes into play when claims are originally cognizable in judicial forums and in nonjudicial forums, usually administrative agencies, and raises issues “ ‘within the special competence of an administrative body.’ ”20 The principles underlying the doctrine, however, are not limited to claims cognizable by administrative agencies. They have been applied in the Westlake context to a physician’s claim a hospital committee wrongfully revoked his surgical privileges.21
The doctrine of primary jurisdiction differs from the doctrine of exhaustion of administrative remedies in that “ ‘Exhaustion applies where an agency alone has exclusive jurisdiction over a case; primary jurisdiction where both a court and an agency have the legal capacity to deal with the matter.’ ”22 The policy reasons behind the two doctrines, however, are similar and overlapping. The exhaustion, doctrine is principally grounded on administrative autonomy and judicial efficiency.23 The primary jurisdiction doctrine is grounded on the courts’ desire to take advantage of administrative expertise and to assure uniform application of regulatory laws.24 “No rigid formula exists for applying the primary jurisdiction doctrine.”25 In addition to the policy considerations noted above, courts consider the adequacy or inadequacy of the administrative remedy including the expense and delay to the litigants.26 If an issue is referred to an administrative agency under the primary jurisdiction doctrine the action is not dismissed but stayed pending resolution of the issues within the agency’s expertise.27
Despite the “considerable flexibility” afforded the courts in applying the primary jurisdiction doctrine,28 our Supreme Court has identified two elements which must be present before a matter is referred to an administrative agency. First, the agency must have a “ ‘pervasive and self-contained system [916]of administrative procedure.’ . . ,”29 Second there must be factual issues “of a complex or technical nature beyond the usual competence of the judicial system.”30
In Westlake the facts showed the plaintiffs application for staff privileges at Los Robles Hospital was considered by the hospital’s medical committee which conducted an independent investigation of her qualifications. The committee’s decision to deny the application was reviewed by the medical executive committee and the hospital’s board of directors.31 More importantly, the court, analogizing to cases involving denial of membership in private associations such as fraternal organizations and unions,32 found deferring to the hospital on the issue of the plaintiffs qualifications for staff membership was appropriate given the hospital’s “expertise,” and “familiarity” with the issues.33
In contrast to Westlake, the Supreme Court in Rojo v. Kliger held resort to the FEHA was unnecessary before a plaintiff could proceed with a civil suit based on common law claims for damages resulting from sex discrimination in employment.34 The court found the FEHA “does not have a ‘pervasive and self-contained system of administrative procedure’ ... for general regulation or monitoring of employer-employee relations so as to assess or prevent discrimination or related wrongs in the employment context[.]”35 And, unlike denial of membership in a private association, the court found “the factual issues in an employment discrimination case [are not] of a complex or technical nature beyond the usual competence of the judicial system.”36 Employment discrimination cases, the court held, “are not cases having such a paramount need for specialized agency fact-finding expertise as to require exhaustion of administrative remedies before permitting an aggrieved person to pursue his or her related nonstatutory claims and remedies in court.”37
In my view, Rojo, not Westlake, is the pertinent authority here.
[917]Even assuming for the sake of argument the Regents’ protection for whistleblowers constitutes a “pervasive and self-contained system of administrative procedure,” this case does not meet the second prong of the test for primary jurisdiction because the factual issues in a case involving wrongful termination in violation of public policy are not “of a complex or technical nature beyond the usual competence of the judicial system.”38 Indeed, such cases are quite common in California courts.
Edgren, on which the Regents also rely, is distinguishable as well. Edgren, the University of California’s principal architect, was laid off for alleged “ ‘budgetary reasons.’ ” He initiated a grievance proceeding but later abandoned it. In his complaint Edgren claimed the Regents engaged in fraud and failed to follow their own personnel policies in effectuating his layoff and in conducting his grievance hearing “all of which resulted in a breach of his employment contract.”39 The trial court sustained the Regents’ demurrer based on Edgren’s failure to exhaust administrative remedies and the Court of Appeal affirmed citing Westlake for the proposition “failure to exhaust administrative remedies will bar actions for damages, including tort claims.”40
Edgren is not on point for several reasons. Edgren was essentially a breach of contract action in which the plaintiff claimed some ancillary tort damages. It was not a common law tort action for wrongful termination as is the case before us. Furthermore, it is apparent from the allegations in Edgren’s complaint that, unlike Palmer, he had a contractual relationship with the Regents which included an obligation to pursue an internal grievance procedure.41 Edgren did not dispute this obligation but maintained he was excused from exhausting his administrative remedies for a variety of reasons the court found to be without merit.42
In summary, I would hold an employee alleging a common law cause of action for wrongful termination of employment is not required to first resort to her employer’s internal grievance procedure unless she is contractually or statutorily obligated to do so or the trial court determines in the exercise of [918]its discretion resort to the employer’s administrative remedy would be consistent with the principles underlying the doctrine of primary jurisdiction.
Having determined neither a contractual obligation nor the principles of primary jurisdiction support referring plaintiffs claim to her employer’s grievance procedure, I turn to the question whether plaintiff was statutorily obligated to exhaust the Regents’ grievance procedure before bringing this action.
In an argument not raised by the Regents, the majority maintains the California Whistleblower Protection Act (CWPA)43 requires Palmer to exhaust their internal grievance procedures before bringing an action for wrongful termination in violation of the public policy against retaliation for whistleblowing activity. On the contrary, the CWPA supports Palmer not the Regents.
Section 8547.10, specifically applicable to University of California employees, provides in subdivision (c) “[A]ny person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a university employee ... for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party .... However, any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer identified pursuant to subdivision (a), and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the regents.”
If Palmer was pursuing a statutory cause of action under section 8547.10, subdivision (c), I would agree she had to first exhaust the administrative remedy referred to in the statute44 But the Regents’ argument ignores subdivision (f) of section 8547.10 which unambiguously excludes Tameny actions from the exhaustion requirement. Subdivision (f) states: “Nothing in this article shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or state law . . . .” The CWPA’s legislative history contains assurances “this bill does not diminish the rights, privileges or remedies of any employee under any other federal or state law or under any employment contract or collective bargaining agreement.”45 A common law action for wrongful termination in violation of public policy is [919]a “remedy under state law.”46 Therefore a University of California whistle-blower is not required to exhaust the administrative remedy referenced in section 8547.10 except with respect to claims under that section.
This conclusion is bolstered by the fact the internal remedy the Regents claim must be exhausted was created to enforce the university’s responsibilities under subdivision (a) of section 8547.10,47 the very same statute which specifically exempts Tameny actions from the exhaustion requirement.48
Finally, the Regents contend even if Palmer is not contractually or statutorily bound to exhaust its internal grievance procedures, exhaustion is required by “ ‘compelling’ policy considerations.’ ”49
I agree the exhaustion doctrine may serve important functions in some circumstances. Among other things, it permits the organization to resolve factual issues and apply its expertise in its rules and regulations to the dispute. It usually affords a less formal and more economical forum to resolve disputes and mitigate damages. And, even if the dispute is not finally resolved at the grievance stage, the above mentioned factors may still promote judicial economy in handling the dispute once it reaches court.50
Of course, it is one thing to agree exhaustion of internal remedies is a socially beneficial policy and quite another thing to judicially impose such a policy on an employment relationship in which the parties theoretically could have agreed to it, but did not. Courts interpret contracts for the parties, they do not make them. To paraphrase an observation frequently made with respect to arbitration, the policy favoring exhaustion of administrative remedies cannot displace the necessity for a voluntary agreement to submit to administrative remedies.51
The absence of any agreement by Palmer to submit her wrongful termination claim to the Regents’ grievance procedure is particularly troubling because requiring Palmer to exhaust the Regents’ internal remedies may prevent Palmer from ever obtaining a jury trial on her tort cause of action for wrongful discharge in violation of public policy. If Palmer submits her [920]wrongful termination claim to the grievance procedure and loses she cannot sue the Regents for wrongful termination even though she has exhausted her administrative remedy. She would first have to bring and win an action for administrative mandamus overturning the grievance decision against her.52 And, although the parties have not briefed the issue, it appears the grievance decision would have to be upheld if there was substantial evidence to support it, a standard which obviously favors the Regents.53 It is one thing for a party to knowingly enter into a contract waiving her constitutional right to a jury trial—this happens every day in arbitration agreements.54 But even Palmer’s own attorney could not unilaterally deprive her of her right to a jury trial.55 I see no justification for the Regents or this court to deprive Palmer of this fundamental constitutional right in the name of judicial economy.56
One final observation: Although the Regents obviously approve of imposing an exhaustion requirement in this case, neither the Regents nor the majority suggest a doctrinal basis for restraining judges in other cases from imposing other terms and conditions of employment the judges might agree are socially beneficial or striking down terms and conditions they agree are socially harmful. Unless the courts are to become super-Regents, I do not believe policy choices among lawful alternatives should become a judicial function.
For the reasons explained above, in my view, the trial court erred in granting the Regents’ motion for summary judgment based on failure to exhaust internal remedies.
Appellant’s petition for review by the Supreme Court was denied July 9, 2003. George, C. J., and Brown, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.
Our Supreme Court has agreed to resolve a similar issue in Campbell v. Regents of University of California (Dec. 23, 2002, A097560) (nonpub. opn.), review granted March 19, 2003, S113275. The issue before the Court of Appeal in Campbell was whether a university employee must exhaust an internal administrative remedy provided by the Regents before filing an action under the False Claims Act (Gov. Code, § 12653) or the whistleblower protection provisions of Labor Code section 1102.5 and was decided in favor of the Regents.
Rojo v. Kliger (1990) 52 Cal.3d 65, 79 [276 Cal.Rptr. 130, 801 P.2d 373].
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172, 176 [164 Cal.Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314] and cases cited therein. In Tameny, the Supreme Court traced California’s recognition of the tort of wrongful discharge in violation of public policy as far back as 1949. (Id. at p. 176, citing Kouff v. Bethlehem-Alameda Shipyard (1949) 90 Cal.App.2d 322 [202 P.2d 1059].) The Regents adopted their whistleblower policy effective January 1, 1990, pursuant to their responsibilities under former Government Code section 10550 enacted in 1988. (Stats 1988, ch. 1385, § 3, pp. 4668-4669) Whistleblower protection for University of California employees is now found in Government Code section 8547.10 discussed below.
Compare Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 74 [78 Cal.Rptr.2d 16, 960 P.2d 1046] (discharge for reporting violation of airline safety regulations supports Tameny cause of action). Palmer’s report of violations of law in the laboratory appears to have been based at least in part on California Code of Regulations, title 17, section 1050, subdivision (h) which states: “Clinical laboratory test results shall not be reported from the laboratory until these results have been critically reviewed and verified for accuracy, reliability, and validity by a licensed physician [or licensed clinical laboratory technician].” This regulation was adopted by the State Department of Health Services under Business and Professions Code section 1224, which gives the department authority to adopt regulations necessary for the administration or enforcement of division 2, chapter 3 of the Business and Professions Code (§§ 1200-1327). Section 1220, subdivision (b) of the Business and Professions Code provides: “Each clinical laboratory shall be conducted, maintained, and operated without injury to the public health.” Clearly, Palmer’s report was based on a regulation designed to promote public health and safety.
Indeed, as I explain below, the Legislature has explicitly made this general rule applicable to university whistleblowers in Government Code section 8547.10, subdivision (f). (All future statutory references are to the Government Code.)
Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 [59 Cal.Rptr.2d 20, 926 P.2d 1114] (the administrative remedy provided by the FEHA must be exhausted before bringing a civil action based on a FEHA violation); Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 438, 439-440 [76 Cal.Rptr.2d 448] (administrative remedy provided by whistleblower statute must be exhausted before bringing a civil action based on violation of the statute).
Johnson v. Hydraulic Research & Mfg. Co. (1977) 70 Cal.App.3d 675, 679 [139 Cal.Rptr. 136] (grievance procedures in collective bargaining agreement intended as exclusive remedy for employee claiming improper discharge for drug use).
Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 90 [99 Cal.Rptr.2d 745, 6 P.3d 669] (agreement by employee to arbitrate wrongful termination claim).
Rojo v. Kliger, supra, 52 Cal.3d at pages 87-88.
The absence of any contractual agreement by Palmer to exhaust the Regents’ internal grievance procedures is particularly significant because, as explained below, participation in the grievance procedure may prevent Palmer from ever obtaining a jury trial on her wrongful termination action. See discussion, post, at pages 919-920.
See discussion of section 8547.10, post, at pages 918-919.
Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410] (Westlake).
Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515 [205 Cal.Rptr. 6] (Edgren).
Westlake, supra, 17 Cal.3d at page 474.
Westlake, supra, 17 Cal.3d at page 473. For procedural reasons not relevant to this discussion the Westlake defendants were allowed to make this exhaustion argument on behalf of Los Robles. (Id. at p. 470, fn. 2.)
Westlake, supra, 17 Cal.3d at page 474.
Westlake, supra, 17 Cal.3d at page 485.
Westlake, supra, 17 Cal.3d at page 485.
Edgren, supra, 158 Cal.App.3d at pages 521-522.
Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 390-391 (Farmers Ins. Exchange) [6 Cal.Rptr.2d 487, 826 P.2d 730].
See, e.g., Rogers v. Columbia/HCA of Central Louisiana, Inc. (W.D.La. 1997) 961 F.Supp. 960, 966-968.
Farmers Ins. Exchange, supra, 2 Cal.4th at pages 390-391.
Farmers Ins. Exchange, supra, 2 Cal.4th at page 391.
Farmers Ins. Exchange, supra, 2 Cal.4th at page 391.
Farmers Ins. Exchange, supra, 2 Cal.4th at page 391.
Farmers Ins. Exchange, supra, 2 Cal.4th at page 391 and footnote 9.
South Bay Creditors Trust v. General Motors Acceptance Corp. (1999) 69 Cal.App.4th 1068, 1081 [82 Cal.Rptr.2d 1]; and see Farmers Ins. Exchange, supra, 2 Cal.4th at page 401.
Farmers Ins. Exchange, supra, 2 Cal.4th at page 392.
Rojo v. Kliger, supra, 52 Cal.3d at page 87, citation omitted.
Rojo v. Kliger, supra, 52 Cal.3d at page 88.
Westlake, supra, 17 Cal.3d at page 472.
Westlake, supra, 17 Cal.3d at pages 474, 475-476. See Robinson v. Templar Lodge, I. O. O. F. (1897) 117 Cal. 370, 375 [49 P. 170]; Levy v. Magnolia Lodge, I. O. O. F. (1895) 110 Cal. 297, 299, 307-308 [42 P. 887]; Neto v. Conselho Amor. etc. (1912) 18 Cal.App. 234, 235, 237-238 [122 P. 973]; Kopke v. Ranney (1962) 16 Wis. 2d 369 [114 N.W.2d 485, 486-489].
Westlake, supra, 17 Cal.3d at pages 475-476.
Rojo v. Kliger, supra, 52 Cal.3d at pages 87-88.
Rojo v. Kliger, supra, 52 Cal.3d at pages 87-88, citation omitted.
Rojo v. Kliger, supra, 52 Cal.3d at page 88.
Rojo v. Kliger, supra, 52 Cal.3d at page 88. In a subsequent decision the court clarified its reference in Rojo to “exhaustion of administrative remedies” when discussing the plaintiffs common law tort remedy. The court explained that although “we referred to ‘exhaustion’ of [917]administrative remedies [in Rojo] we were in fact considering a question of prior resort to administrative procedures under the primary jurisdiction doctrine.” (Farmers Ins. Exchange, supra, 2 Cal.4th at p. 396, fn. 15; see discussion of the similarities and differences between exhaustion and primary jurisdiction, ante, pages 915-916.) Therefore, Rojo is not authority for the proposition a plaintiffs common law tort remedy is subject to the “exhaustion” requirement applicable to a parallel statutory remedy.
Rojo v. Kliger, supra, 52 Cal.3d at page 88.
Edgren, supra, 158 Cal.App.3d at page 519. Plaintiff also sought damages for torts incidental to the breach of contract. (Ibid.)
Edgren, supra, 158 Cal.App.3d at page 521.
Edgren, supra, 158 Cal.App.3d at page 519.
Edgren, supra, 158 Cal.App.3d at pages 521-523.
Sections 8547-8547.12.
Hood v. Hacienda La Puente Unified School Dist., supra, 65 Cal.App.4th at pages 440-441.
Senate Committee on Public Employment and Retirement, Report on Senate Bill No. 951 (1999-2000 Reg. Sess.) page 3; Assembly Committee on Public Employees, Retirement and Social Security, Report on Senate Bill No. 951 (1999-2000 Reg. Sess.) page 2.
See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 907, 909 [66 Cal.Rptr.2d 888, 941 P.2d 1157]; Rojo v. Kliger, supra, 52 Cal.3d at page 74.
Formerly section 10550, subdivision (a). (Stats. 1988, ch. 1385, § 3, p. 4668.)
Section 8547.10, subdivision (f), quoted ante.
Majority opinion, ante, at page 905.
See Rojo v. Kliger, supra, 52 Cal.3d at page 86; Westlake, supra, 17 Cal.3d at page 476.
See Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1129 [88 Cal.Rptr.2d 664] and cases cited therein.
Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70-71 [99 Cal.Rptr.2d 316, 5 P.3d 874]; Westlake, supra, 17 Cal.3d at page 484.
See Apte v. Regents of University of California (1988) 198 Cal.App.3d 1084, 1091 [244 Cal.Rptr. 312].
See Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 714 [131 Cal.Rptr. 882, 552 P.2d 1178].
Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404 [212 Cal.Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109].
See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 803-806 [79 Cal.Rptr.2d 273].