California Court of Appeals, Second District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
ORIGINAL PROCEEDINGS in mandate Los Angeles County Super. Ct. No. BC493928, Alan S. Rosenfield, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Shegerian & Associates, Inc. and Carney R. Shegerian for Petitioner.
No appearance for Respondents.
Shaw Valenza, D. Gregory Valenza and Jasmine L. Anderson for Real Parties in Interest.
Health and Safety Code section 1278.5 prohibits a health facility from retaliating against any of its employees for complaining about the quality of care or services provided by the facility. The statute further provides that an employee who has been improperly retaliated against “shall
be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case, or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.” (Health & Saf. Code, § 1278.5, subd. (g).) The question presented by the instant writ petition is whether a former employee of a health facility, alleging improper retaliation, has a right to a jury trial for her action seeking money damages under this statute. We conclude that she does, and therefore grant the employee’s petition for writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Deborah Shaw brought suit against her former employers, THC – Orange County, Inc. dba Kindred Hospital – Los Angeles,  Kindred Healthcare Operating, Inc.; Kindred Hospitals West, LLC; and Kindred Healthcare, Inc. (collectively, Kindred). The operative complaint is the first amended complaint. Shaw alleges that, during her employment, she complained to defendants about conditions of the facilities that affected the quality of care and services provided. Specifically, Shaw complained that Kindred “was employing as health care professionals individuals that were not licensed and or certified. [Shaw] also complained to [Kindred] that [Kindred] employed health care professionals who had not properly completed their competencies.” In alleged retaliation for Shaw’s complaints, Kindred took adverse employment actions against Shaw, including her ultimate termination.
Shaw’s complaint pleaded two causes of action, one for violation of Health and Safety Code section 1278.5 and one for wrongful termination in violation of public policy. With respect to her cause of action under Health and Safety Code section 1278.5,  Shaw alleged that she has suffered “past and future monetary los[s]es, loss of benefits, emotional damages, and physical injury.” Shaw sought the following relief: compensatory and emotional distress damages; lost salary (front and back pay, bonuses, and benefits); punitive damages; prejudgment interest; attorney fees; statutory civil penalties; and costs. Shaw did not seek reinstatement.
Kindred answered and the case ultimately proceeded to trial. Immediately prior to trial, the court requested briefing on Shaw’s right to a jury trial under Health and Safety Code section 1278.5. Shaw took the position that she was entitled to a jury trial because the statute provided for lost wages and attorney fees,  both of which were legal remedies. Kindred took the position that a claim for reimbursement of lost wages is a claim for restitution, which sounds in equity.
A hearing was held. The parties discussed each phrase in the statute providing for a remedy, and argued over whether the statute provided for legal, as opposed to equitable, relief. As we shall discuss, we find the statutory language providing for “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law” to be key to the resolution of this issue. (Health & Saf. Code, § 1278.5, subd. (g).) At the hearing, the court noted that this language delegates the selection of a ...