(Los Angeles County Super. Ct. No. BC381838) APPEAL from a judgment of the Superior Court of Los Angeles County. Soussan G. Bruguera, Judge. Reversed and remanded.
The opinion of the court was delivered by: J. Chavez
CERTIFIED FOR PUBLICATION
Defendant and appellant County of Los Angeles (County) appeals from the judgment entered in favor of plaintiff and respondent Yvette Brown (Brown) after a jury returned a special verdict in Brown's favor on her claims for retaliation and for wrongful termination in violation of public policy. The County contends the trial court erred by excluding evidence that Brown's employment as a psychologist with the County Department of Mental Health (County DMH) required her to obtain a license from the State Board of Psychology (hereafter Board of Psychology or Board), that Brown understood she had to obtain such a license but failed to do so, and that she was discharged from her employment for failure to obtain a license. Brown maintains that she met the licensure requirements because she came within the exemption accorded by Business and Professions Code section 2910. The trial court ruled as a matter of law that Brown was "licensed" under state law because she came within the "Exempt Setting" of Business and Professions Code section 2910.
Brown did not come within the plain language of Business and Professions Code section 2910. The trial court erred as a matter of law by concluding that Brown was "licensed" because she came within the exemption accorded by that statute and abused its discretion by excluding evidence that Brown failed to obtain a license. The judgment must therefore be reversed and the matter remanded for a new trial.
1. Brown's employment and license waiver
The County DMH hired Brown as a "Clinical Psychologist II" in October 2001. The County's class specification for that position lists the following activities among the duties to be fulfilled by a person hired to fill the position: "Perform direct patient care activities including assessment and evaluation by diagnosing[,] providing individual and group therapy, and counseling." The class specification also lists "[a] license to practice as a psychologist . . . or satisfaction of waiver requirements set forth by the State" as one of the "minimum requirements" for a Clinical Psychologist II.
The County DMH's written policy on professional licenses lists a
Clinical Psychologist II as a position that requires licensure and
states that a "State Waiver or Psychology License" is required. The
policy further states that the "DMH may forego the licensure
requirement for . . . Clinical Psychologist II positions, in
accordance with" Business and Professions Code section 4996.18*fn1
and Welfare and Institutions Code section 5751.2. Those
statutory provisions accord a three- to five-year waiver period from
the licensure requirements to permit persons employed as psychologists
or clinical social workers to obtain the supervised professional
experience required for licensure and to allow them sufficient time to
apply for, take, and pass the licensing examination. (Welf. & Inst.
Code, § 5751.2; Bus. & Prof. Code, §§ 2914, subd. (d), 2941-2944;
When the County hired Brown in October 2001, it obtained a license waiver for her from the State Department of Mental Health (State DMH) pursuant to Welfare and Institutions Code section 5751.2. That waiver was to expire on October 22, 2006. On October 22, 2001, Brown signed a waiver acknowledgment stating that she understood "that as a condition of my employment as a Clinical Psychologist II, I am required to be licensed by the State of California as a Psychologist" but that the County would seek from the State DMH on her behalf a five-year waiver from the licensing requirement. The acknowledgment Brown signed further stated: "Failure to obtain a psychologist license by the waiver expiry date may result in termination of my employment with the [County] DMH. [¶] It is my responsibility to ensure that I am licensed by the waiver expiry date and to provide evidence of licensure to [County] DMH."
After Brown was hired as a Clinical Psychologist II, she was assigned to the County Central Juvenile Hall, where she provided "assessment and psychological services" to juveniles in detention. During her employment Brown twice attempted, unsuccessfully, to pass the examination necessary to obtain licensure as a psychologist.
In a memorandum dated September 20, 2006, Brown's supervisor reminded her that her license waiver would expire on October 22, 2006 and requested an update on her efforts to obtain a license. On September 26, 2006, the County attempted to obtain an extension of the waiver period on Brown's behalf, but the State DMH denied the request on November 3, 2006.
2. Brown's complaints about working conditions
On October 15, 2006, Brown and 16 other County DMH employees signed a complaint against their supervisor alleging, among other things, unhealthy and unsafe working conditions, creation of a hostile work environment, abusive treatment of employees, and gross negligence and incompetence.
In a letter dated December 19, 2006, the County DMH notified Brown that it intended to discharge her from her employment as a clinical psychologist. The letter set forth the basis for Brown's discharge as "non-compliance with . . . California State Welfare and Institutions Code (WIC), Section 5751.2; guidelines set by the [State DMH], entitled Professional Licensure of Personnel, Exemption, and Waiver; Civil Service Rule 18, Section 18.031, which describes the basis for imposing discipline, and the DMH Policy Number 600.8, Professional Licensure, which describes the minimum requirements set for the classification of Clinical Psychologist II, and your conditions of employment."
Brown commenced the instant lawsuit on December 6, 2007. She subsequently dismissed all causes of action except her claims for retaliation in violation of Labor Code sections 6310 and 6311; retaliation in violation of Labor Code sections 98.6, 1102.5, 6399.7, and Government Code section 8547; and wrongful termination in violation of public policy.
The County filed a motion for summary judgment, which the trial court denied on the ground that a triable issue of material fact existed as to whether the County DMH's reason for issuing the notice of intent to discharge Brown was pretextual. The County filed a petition for writ of mandate seeking to reverse the trial court's ruling on its motion for summary judgment, and that petition was summarily denied.
1. Brown's motion in limine
On July 19, 2010, Brown filed a motion in limine to exclude any evidence relating to a California state-issued psychologist license being a prerequisite for employment with the County DMH as a Clinical Psychologist II. In her moving papers, Brown argued that she was exempt from the licensing requirement pursuant to Business and Professions Code section 2910, and that the County DMH could not justify her discharge based on her failure to obtain a license. In support of her motion, Brown submitted the deposition testimony of Lavinia Snyder (Snyder), a licensing and registration coordinator for the Board of Psychology. Snyder testified in her deposition that persons employed by the County to provide psychological services are exempt from state licensing requirements so long as they provide those services solely within the scope of their employment. The County opposed Brown's motion, arguing that she did not fall within the scope of the statutory exemption. The County also submitted a request that the trial court take judicial notice of an attorney general opinion and the legislative history to Business and Professions Code section 2910.
After considering the moving and opposition papers, the trial court advised the parties that it needed "help" in the form of "testimony" on the "issue of the exemption." In response to the trial court's request, Brown presented testimony from Annette Parino (Parino), a licensing and registration analyst for the Board of Psychology. Parino had processed approximately 5,000 licensing applications over an 11-year period. Her job responsibilities included ensuring that license applicants' credentials and other requirements for licensure had been fulfilled before taking the licensing examination. Over the County's objection that Parino was not qualified to give a legal opinion about the licensing exemption, the trial court allowed Parino to testify that a County employee working as a psychologist is exempt from licensing. After hearing argument from the parties, the trial court granted Brown's motion in limine.
In a written decision confirming its oral ruling, the trial court found, based on the "uncontroverted testimony," that Brown "met the licensure requirements set by and demanded by the County as spelled out in the Notice of Intent to Discharge letter of December 21, 2006." Citing Parino's testimony as well as the deposition testimony of Parino's supervisor, Snyder, that an individual employed by a governmental agency to provide psychological services solely within the confines of his or her employment may do so within the "Exempt Setting" of Business and Professions Code section 2910, the trial court concluded: "Though Ms. Brown's [five]-year Waiver expired, she was nevertheless 'licensed' pursuant to State law because she was within the 'Exempt Setting' of Business and Professions Code section 2910. Ms. Brown has established that she was 'licensed' under Business and Professions Code section 2910 because: (1) she was employed by the County of Los Angeles as a Clinical Psychologist II; (2) she performed her duties as a Clinical Psychologist II solely within the jurisdiction or confines of her employment with the County of Los Angeles; (3) she did not hold herself out to the public by any title or description of activities incorporating the words 'psychology,' 'psychological,' 'psychologist,' 'psychometry,' 'psychometrics' or 'psychometrist' outside the 'Exempt Setting'; (4) she did not offer her services to the public for a fee, monetary or otherwise outside the 'Exempt Setting'; and (5) she did not provide direct health or mental health services outside the 'Exempt Setting.' Since Ms. Brown has established she was 'licensed' pursuant to State law because she was within the 'Exempt Setting' of Business and Professions Code Section 2910, she was not required by the State to possess a State issued psychologist license after the end of her [five]-year Waiver in order to be employed by the defendant as a Clinical Psychologist II." The trial court then prohibited the County from presenting any evidence that Brown was not licensed at the time her employment was terminated.
The County filed a petition for writ of mandate seeking to reverse the trial court's ruling on the motion in limine, and this court summarily denied that petition.
2. Trial and jury verdict
At trial, Brown testified that as a clinical psychologist employed by the County at Central Juvenile Hall, her duties included "assessment and providing psychological services to juveniles who come into the detention center." She explained that many of the detained juveniles "come in extremely angry that they're there, so my job is to calm them down, deescalate the anger so they'll be fit to go inside one of the rooms, the buildings."
Brown further testified that she was "licensed" to practice psychology when she received the County's notice of intent and discharge. When the County's attorney asked Brown when she obtained her license, the trial court sustained an objection that the question called for a legal conclusion and instructed the jury as follows: "The issue of whether she was licensed to practice for the County of Los Angeles is a legal question and legally she was licensed to practice for the County of Los Angeles. That's a question of law that I have determined already."
After the close of evidence, the trial court instructed the jury on Brown's licensing status as follows:
"Plaintiff Yvette Brown was employed by the County of Los Angeles as Clinical Psychologist Two from 2001 to 2006. I have determined that as a matter of law, the State of California authorized Ms. Brown to continue practicing psychology for the defendant County of Los Angeles beyond March 2007, the date defendant, County of Los Angeles, terminated her from employment. This jury instruction means that you, the jury, must accept as true the fact that the State of California authorized Ms. Brown to continue practicing psychology for the defendant, County of Los Angeles, beyond March 2007, the date defendant County of Los Angeles terminated her from employment."
Following the trial court's instruction, Brown's attorney argued that the County's stated reason for discharging Brown was a lie. The jury thereafter returned a special verdict, finding that the County had retaliated against Brown for complaining about safety conditions. Judgment was entered in Brown's favor, and this appeal followed.*fn2
I. Licensing requirements for psychologists ...