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Boston v. Penny Lane Centers

January 27, 2009


APPEAL from a judgment of the Superior Court of Los Angeles County, William F. Fahey, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC351541).

The opinion of the court was delivered by: Epstein, P. J.


In this wrongful termination lawsuit, the jury returned a verdict for plaintiff and respondent LaToya Boston. Defendant and appellant Penny Lane Centers, Inc. (Penny Lane) moved for judgment notwithstanding the verdict, or alternatively, a new trial; the trial court denied both motions. Penny Lane appeals from the final judgment on two grounds. It contends, first, that Boston's claim is barred by her failure to exhaust the administrative remedy set forth in Health and Safety Code section 1596.882, and, second, that the trial court committed reversible error by allowing Boston's expert witnesses to testify at trial.

We conclude that Boston did not bring her claim under Health and Safety Code sections 1596.881 and 1596.882, and therefore is not limited to the administrative remedy set forth in section 1596.882. We also conclude that the trial court acted within its discretion by admitting the testimony of Boston's expert witnesses. We shall affirm the judgment.


Penny Lane is a social services agency that operates group homes for juveniles and offers therapy for children and families, among other services. In August 2004, Penny Lane hired Boston to conduct individual and group therapy in the day treatment program. Boston saw clients ranging in age from 12 to 18 years old. Many of her clients had criminal histories and had spent time in juvenile hall or other facilities. Some had histories of moving from group home to group home because of violent behavior.

When she was hired, Boston was told Penny Lane maintained staffing ratios of one staff member for every three clients. This ratio was maintained at first, but in 2005 the number of juveniles receiving therapy in the day treatment program increased. The new clients were more volatile and required a higher level of care. Boston told her supervisor, Joy Childress, that the increased number of clients made it difficult for her to do her job and adhere to safety guidelines without additional staff support. Childress told Boston that Penny Lane did not want to spend money on extra staff. Boston was promoted from lead therapist to day treatment coordinator in April 2005.

Lorah Joe replaced Childress as Boston's supervisor in May 2005. Between May and July, Boston saw more than 18 juveniles daily in day treatment, instead of her original client load of two to three. Penny Lane did not increase the number of staff to accommodate the increased client load, despite Boston's insistence that she needed more support due to safety concerns. The increase in clients was accompanied by an increase in incidents, such as fights and furniture being thrown. Boston often was alone with groups of juveniles who would engage in destruction of property and act combatively toward Boston and each other. Boston found it impossible to conduct group therapy sessions, as she had to devote most of the therapy time to "de-escalating and trying to control [crises]." When Boston raised the issue with Joe, she told her to "get over it and stop whining."

On July 11, 2005, a fight broke out between clients in Boston's group therapy. The only other staff member in the room at the time was not qualified to intervene in the altercation. Boston fell to the floor with the two clients who were fighting; she was then run over by the other clients as they "stampede[d]" out the door. Boston suffered a back injury as a result of this incident. She reported the incident to Joe, who told her to "toughen up." Jerardo Majewsky, the manager in charge of quality improvement, conducted an investigation of the incident and prepared a report. Majewsky concluded in the report, "'It seems that staff Boston made every attempt to de-escalate the situation to the best of her ability . . . [b]ut due to not having enough staff to do a proper [restraint] . . . staff Boston ended up needing medical attention.'" Boston sent a letter to Joe around July 19, 2005, regarding her concern that the work environment had become unsafe. In the letter, Boston stated, "'I understand that there are budget issues, however, my work environment is no longer safe.'" Boston received no response to her letter.

Boston's employment was terminated on August 19, 2005. Penny Lane asserted Boston's termination was due to poor performance. Witnesses for Penny Lane testified that Boston allowed her therapist intern certificate to lapse, failed to submit necessary documentation for her patients, and violated safety rules by arriving at work at 4:00 a.m. one morning. Boston believed these reasons were pretextual, particularly since on the same day she was terminated, Joe told Boston she was tired of her complaining.

Boston filed a complaint naming Penny Lane and Joe as defendants. She alleged a violation of Labor Code sections 6310-6312; tortious termination in violation of public policy; defamation of character; discrimination based on disability; and harassment based on disability. By the time of trial, only the tortious termination claims remained. Because these claims were asserted against Penny Lane alone, Joe was no longer a named defendant. After a jury trial, a special verdict was returned finding that Boston had been wrongfully terminated in violation of public policy. The jury awarded Boston $500,000 in compensatory damages and $200,000 in punitive damages. Penny Lane moved for judgment notwithstanding the verdict, or alternatively, a new trial. In support of both motions, Penny Lane contended Boston had an exclusive administrative remedy under Health and Safety Code section 1596.882, which she failed to pursue. (Penny Lane had unsuccessfully moved for non-suit on this basis during trial.) In support of its motion for new trial, Penny Lane also contended the trial court committed prejudicial error by allowing Boston's expert witnesses to testify. The trial court denied Penny Lane's motions and entered judgment for Boston. Penny Lane filed this timely appeal.



Penny Lane first argues for reversal on the ground that "Boston's exclusive remedy for retaliation for complaining about Health and Safety Code violations was pursuant to the Health and Safety Code [sections 1596.881 and 1596.882]."

Health and Safety Code sections 1596.881 and 1596.882 are part of the California Child Day Care Act (the Act), a comprehensive statutory scheme governing the licensing and staffing of various child care facilities. (Health & Saf. Code, § 1596.70 et seq.) Sections 1596.881 and 1596.882 appear in article 3 of the Act, which pertains to whistle-blower protections. (Health & Saf. Code, § 1596.880 et seq.) Section 1596.881 provides that no employer*fn2 may discriminate against an employee who makes a good faith complaint to a regulatory agency or the employer regarding violations of the law by the employer.*fn3 Among the specific complaints addressed in this section is violation of laws relating to staff-child ratios. Section 1596.882 provides that an employee who is discriminated against in violation of section 1596.881 must, in most cases, pursue a grievance through the Division of Labor Standards Enforcement.*fn4

Boston does not reference Health and Safety Code sections 1596.881 and 1596.882 anywhere in her complaint, nor did her case at trial rely on Penny Lane having violated the law governing staff-child ratios. Nonetheless, Penny Lane reasons that because Boston's workplace safety concerns had to do with inadequate staffing, Boston is limited as a matter ...

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