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Shaw v. Superior Court (THC-Orange County, Inc.)

Supreme Court of California

April 10, 2017

DEBORAH SHAW, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THC-ORANGE COUNTY, INC., et al., Real Parties in Interest.

         Los Angeles County Super. Ct. No. BC493928, Ct.App. 2/3 B254958 Alan S. Rosenfield Judge

          Shegerian & Associates, Inc., Carney R. Shegerian and Anthony Nguyen for Petitioner.

          Center for Legal Affairs, Francisco J. Silva and Long X. Do for California Medical Association as Amicus Curiae on behalf of Petitioner.

          No appearance for Respondent.

          Shaw Valenza, D. Gregory Valenza and Jasmine L. Anderson for Real Parties in Interest.

          Manatt, Phelps & Phillips, Barry S. Landsberg and Joanna S. McCallum for Dignity Health as Amicus Curiae on behalf of Real Parties in Interest.

          Jacquelyn Garman; Arent Fox, Lowell C. Brown, Erin L Muellenberg and Jonathan E. Phillips for California Hospital Association as Amicus Curiae on behalf of Real Parties in Interest.

          Cantil-Sakauye, C. J.

         This case presents two issues: (1) Is a trial court ruling denying a request for a jury trial in a civil action subject to review prior to trial by a petition for an extraordinary writ or may such a ruling be reviewed only by appeal after trial? and (2) Is there a right to a jury trial in a health care facility whistleblower action for retaliatory termination brought pursuant to Health and Safety Code section 1278.5, subdivision (g), as amended in 2007?

         For the reasons explained below, we conclude (1) that a trial court ruling denying a request for a jury trial in a civil action is reviewable prior to trial by a petition for an extraordinary writ, and (2) that there is no statutory right to a jury trial in a cause of action for retaliatory termination under the statutorily created civil action authorized under Health and Safety Code section 1278.5, subdivision (g) inasmuch as the language and legislative history of that statute demonstrate that the Legislature intended that the remedies available in such an action would be determined by the court rather than by a jury. The absence of a jury trial in a retaliatory termination action under Health and Safety Code section 1278.5, subdivision (g) does not deprive a plaintiff of a right to a jury trial, however, because Health and Safety Code section 1278.5, subdivision (m) fully preserves a plaintiff's right to obtain a jury trial in the related tort cause of action for wrongful termination in violation of public policy authorized under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny).

         I. Facts and Lower Court Proceedings

         Petitioner Deborah Shaw (hereafter plaintiff) filed the underlying lawsuit against her former employers - Kindred Hospital and related entities (hereafter defendants)[1] - based on the claim that she was unlawfully terminated from employment. Plaintiff's first amended complaint (the operative filing) alleged that during her employment plaintiff complained to defendants about several aspects of defendants' operations that adversely affected the quality of care and services provided to patients. In particular, plaintiff allegedly complained that defendants were employing health care professionals who were not licensed and/or certified or “who had not properly completed their competencies.” Plaintiff asserted that in retaliation for her complaints, defendants took adverse employment actions against her, ultimately culminating in her termination.

         On the basis of these allegations, the complaint set forth two causes of action, one based on Health and Safety Code section 1278.5, subdivision (g)[2] and one based on wrongful termination in violation of public policy pursuant to this court's decision in Tameny, supra, 27 Cal.3d 167. With respect to the cause of action for wrongful termination in violation of public policy (the Tameny action), the trial court concluded that plaintiff was entitled to a jury trial on that cause of action; neither party has challenged that ruling. The only substantive issue before us in this proceeding concerns whether there is a right to a jury trial as to plaintiff's other cause of action, the cause of action authorized by section 1278.5, subdivision (g) (hereafter generally referred to as section 1278.5(g)).

         With respect to the cause of action under section 1278.5(g), the complaint alleged that as a result of defendants' violation of section 1278.5 plaintiff “has and will continue to suffer past and future monetary [losses], loss of benefits, emotional distress, and physical injury, ” and sought all of the following as a remedy: (1) “compensatory and emotional distress damages;” (2) “lost salary, both front and back pay, bonuses, benefits and any other benefits to which Plaintiff would have been entitled... by reason of Plaintiff's employment with Defendants;” (3) “[p]unitive and exemplary damages;” (4) “prejudgment interest;” (5) “attorneys' fees pursuant to Health and Safety Code § 1278.5 and civil penalties allowed thereunder;” (6) “costs of suit incurred herein;” and (7) “such other and further relief as the Court deems just and proper.”

         Defendants filed an answer to the first amended complaint, generally denying the allegations of the complaint and asserting a variety of affirmative defenses, and the case ultimately was set for trial.[3]

         Prior to trial, the trial court requested briefing on the issue whether plaintiff was entitled to a jury trial on the cause of action under section 1278.5(g) and held a separate hearing on that issue. At the conclusion of the hearing, the trial court ruled that section 1278.5(g) is properly interpreted as an equitable claim with equitable remedies to be determined by the court and therefore held that plaintiff was not entitled to a jury trial on the cause of action based on that statute. The court stated that it “would hear this matter concurrent with the evidence presented at the jury trial [on the wrongful termination in violation of public policy cause of action], but would not otherwise instruct the jury on anything related to the separate whistleblower claim.”

         At the same time, recognizing the novelty of the section 1278.5(g) jury trial issue, the trial court invited plaintiff's counsel to consider filing a petition for writ of mandate concerning the matter, and stated that it was prepared to certify, pursuant to the provisions of Code of Civil Procedure section 166.1, that it believed that “there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.”[4] After plaintiff's counsel indicated a desire to file a writ petition, the trial court stayed the effective date of its ruling for five days and certified the matter pursuant to Code of Civil Procedure section 166.1.

         Plaintiff then filed a petition for writ of mandate in the Court of Appeal, challenging the trial court's denial of a jury trial on the section 1278.5(g) cause of action. The Court of Appeal issued an order to show cause and stayed the lower court proceedings in the underlying action pending resolution of the writ matter. In their return, defendants maintained that the writ should be denied on two separate grounds: (1) that a trial court order denying a jury trial is not reviewable prior to trial by extraordinary writ but may be reviewed only by appeal after trial, and (2) that, in any event, the trial court properly concluded there is no right to a jury trial in a cause of action under section 1278.5(g).

         After briefing and argument, the Court of Appeal ruled in plaintiff's favor, concluding, first, that a trial court's denial of a jury trial is reviewable prior to trial by a petition for an extraordinary writ, and, second, that the trial court erred in determining that there is no right to a jury trial in an action based on section 1278.5(g).

         We granted review to consider both issues. We turn first to the threshold procedural question: Is a trial court ruling denying a request for a jury trial reviewable prior to trial by a petition for an extraordinary writ?

         II. Is a Trial Court's Denial of a Request for Jury Trial Subject to Review Prior to Trial by a Petition for Extraordinary Writ?

         In a series of early California Supreme Court cases culminating in the 1931 decision in Nessbit v. Superior Court (1931) 214 Cal. 1 (Nessbit), this court held that a trial court order denying a request for a jury trial was not subject to review prior to trial by extraordinary writ but rather could be reviewed only after the trial had been completed by appeal of the ultimate judgment. The decision was based on the general principle that review by extraordinary writ is available only when the trial court has acted in excess of or lacks jurisdiction. In summarizing the rationale of the preceding line of cases on which it relied, the court in Nessbit stated that the determination whether a right to a jury trial exists in a particular case “is a question of law which the superior court has jurisdiction to hear and determine, and if error has been or shall be committed in determining that question, the petitioner has a sufficient remedy in the ordinary course of law by appeal.” (Id. at p. 7.) Under such circumstances, where the trial court that ruled on the jury trial question possessed what is now generally described as fundamental jurisdiction over the parties and the subject matter of the litigation, the court in Nessbit concluded that review by extraordinary writ was not available. (Id. at pp. 7-9; see also Amos v. Superior Court (1925) 196 Cal. 677, 681 [“[T]he presence of a lawful jury is not essential to jurisdiction of the subject matter of a civil action at law, even though the parties thereto may have a constitutional right to a trial thereof before a jury.... The writ of prohibition is not a writ of error and we are not disposed to use it as such. The respondent court having jurisdiction of both the parties and the subject matter may commit error in the exercise of such jurisdiction and the appropriate remedy for the correction thereof is an appeal.”]; Donohue v. Superior Court (1892) 93 Cal. 252, 253 [same]; Powelson v. Lockwood (1890) 82 Cal. 613');">82 Cal. 613, 614-615 [same].)

         Subsequent to Nessbit, supra, 214 Cal. 1, however, in Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280 (Abelleira), this court, after observing that the term “jurisdiction” is notoriously ambiguous and has different meanings in different situations (id. at pp. 286-287), explained that, for purposes of determining when review of a trial court ruling by extraordinary writ is permissible(as an alternative to review of the ruling on appeal), the term “ ‘lack of jurisdiction' ” must properly be understood as having a different meaning from a fundamental lack of jurisdiction over the subject matter of the litigation or the parties (id. at p. 288). The court in Abelleira stated in this regard: “[I]n its ordinary usage [with regard to authorizing review of a trial court ruling by extraordinary writ] the phrase ‘lack of jurisdiction' is not limited to these fundamental situations. For the purpose of determining the right to review [by extraordinary writ]..., a much broader meaning is recognized. Here it may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” (Ibid.) The Abelleira court thereafter summarized its conclusion on this point: “Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled [by extraordinary writ].” (Id. at p. 291; see generally 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 285, p. 891.)

         Over the many years since Abelleira, supra, 17 Cal.2d 280, California appellate decisions have uniformly permitted a trial court denial of a request for jury trial to be reviewed prior to trial by a petition for writ of mandate or prohibition. For example, in Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654, the Court of Appeal held: “A writ of mandate is a proper remedy to secure the right to a jury trial.... [E]ven if [the complaining party] could [obtain]... reversal of the judgment [after a bench trial], such a procedure would be inefficient and time consuming.” (See also, e.g., Interactive Multimedia Artists, Inc.v. Superior Court (1998) 62 Cal.App.4th 1546, 1550; Turlock Golf etc. Club v. Superior Court (1966) 240 Cal.App.2d 693, 695; Knight v. Superior Court (1950) 95 Cal.App.2d 838, 839-840.)[5] Similarly, in recent years our own court has on a number of occasions reviewed the validity of a trial court ruling denying a jury trial by means of a pretrial extraordinary writ proceeding. (See Grafton Partners L.P. v. Superior Court (2005) 36 Cal.4th 944, 950 (Grafton Partners); Crouchman v. Superior Court (1988) 45 Cal.3d 1167, 1170-1171 (Crouchman).) In neither Grafton Partners nor Crouchman did any party question the propriety of review by extraordinary writ and those decisions did not discuss this procedural point.

         Although California decisions after Abelleira, supra, 17 Cal.2d 280, have uniformly permitted a trial court's denial of a request for a jury trial to be reviewed pretrial by a petition for extraordinary writ, this court has not previously been explicitly called upon to address the continued vitality of the line of early California decisions culminating in Nessbit, supra, 214 Cal. 1 - decisions, which as we have seen, set forth a contrary rule. This case requires us directly to confront that question.

         As explained above, under Abelleira “any acts that exceed the defined power of a court” as prescribed by the Constitution, a statutory provision, or controlling judicial decision are properly considered to be “in excess of jurisdiction” for purposes of review by extraordinary writ. (Abelleira, supra, 17 Cal.2d at p. 291.) When the state Constitution or an applicable statute affords a party a right to a jury trial in a civil action, a trial court has no power or authority to deny a request for a jury, and therefore, under Abelleira, a trial court's denial of a request for jury trial may be reviewed prior to trial by a petition for an extraordinary writ. (See generally 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 306, pp. 917-918 [citing cases]; 7 Witkin, Cal. Procedure, supra, Trial, § 82, p. 108 [citing cases].)[6] Because the holdings in the line of early California Supreme Court decisions culminating in Nessbit rest on an understanding of a lack or excess of jurisdiction in the extraordinary writ context that is incompatible with this court's later, controlling decision in Abelleira (see Knight v. Superior Court, supra, 95 Cal.App.2d 838, 839-840), Nessbit v. Superior Court, supra, 214 Cal. 1 and the preceding line of similar California Supreme Court decisions set forth, ante, are overruled on this point.[7]

         Accordingly, because the right to jury trial issue is properly before us, we proceed to determine whether the trial court correctly denied plaintiff's request for a jury trial in this case.

         III. Is There a Right to a Jury Trial in a Civil Cause of Action for Retaliatory Termination under Health and Safety Code Section 1278.5, Subdivision (g)?

         A. General principles regarding the right to jury trial under California law

         Under California law, the right to a jury trial in a civil action may be afforded either by statute or by the California Constitution.[8] When the right to jury trial exists, it provides the right to have a jury try and determine issues of fact. (Code Civ. Proc., § 592; Evid. Code, § 312.) Even in such cases, issues of law are to be determined by the court, rather than a jury. (Code Civ. Proc., ยง 591; ...


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