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1 GEOFFREY SPELLBERG (SBN 121079)
gspellberg@publiclawgroup.com
2 LORI S. LIU (SBN 225599)
lliu@publiclawgroup.com
3 ANASTASIA BONDARCHUK (SBN 309091)
abonderchuk@publiclawgroup.com
4 RENNE PUBLIC LAW GROUP
350 Sansome Street, Suite 300
5 San Francisco, California 94104
Telephone: (415) 848-7200
6 Facsimile: (415) 848-7230
7 Attorneys for Defendant
ALAMEDA HEALTH SYSTEM
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF ALAMEDA
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12
TAMELIN STONE, AMANDA KUNWAR, on Case No. RG21092734
13 behalf of themselves and all others similarly
situated, ASSIGNED FOR ALL PURPOSES TO
14 Judge Noёl Wise
Plaintiffs, DEPARTMENT 24
RENNE PUBLIC LAW GROUP
15
Attorneys at Law
v. EXEMPT FROM FEES (GOV. CODE § 6103)
16
HIGHLAND HOSPITAL, a business entity form
17 unknown; ALAMEDA HEALTH SYSTEM, a NOTICE OF ENTRY OF ORDER RE:
Public Hospital Authority; and DOES 1 to 100, DEMURRER TO FIRST AMENDED
18 inclusive. COMPLAINT
19 Defendants. Action Filed: March 19, 2021
20
21 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
22 PLEASE TAKE NOTICE that on November 6, 2021, the Court sustained Defendant Alameda
23 Health System’s Demurrer to Plaintiffs’ First Amended Complaint, with leave to amend. A true and
24 correct copy of that Order is attached hereto as Exhibit “A.”
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NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734
1 Dated: November 9, 2021 RENNE PUBLIC LAW GROUP
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By:
4 LORI S. LIU
5 Attorneys for Defendant
ALAMEDA HEALTH SYSTEM
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RENNE PUBLIC LAW GROUP
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Attorneys at Law
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NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734
EXHIBIT A
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Rene C. Davidson Courthouse
Tamelin Stone et al No. RG21092734
Plaintiff/Petitioner(s)
vs. Date: 11/06/2021
Highland Hospital et al Time: 5:10 PM
Defendant/Respondent(s)
Dept: 24
Judge: Noël Wise
ORDER re: Ruling on Submitted Matter
The Court, having taken the matter under submission on 10/07/2021, now rules as follows:
The Demurrer to the First Amended Complaint Filed by Alameda Health System filed by
Alameda Health System on 07/15/2021 is Sustained with Leave to Amend.
The Court rules as follows on the Demurrer to Plaintiffs’ First Amended Complaint by
Defendant Alameda Health System (“AHS”):
The demurrers to the First through Sixth Causes of Action (all based on alleged violations of
various Labor Code provisions) are SUSTAINED, WITHOUT LEAVE TO AMEND. AHS is a
statutorily created public agency with all the rights and duties set forth in state law with respect
to hospitals owned or operated by a county. (See Health & Safety Code § 101850(a)(2)(C), (m),
and (u).) Absent express words to the contrary, public agencies are not included within the
general words of a statute. (See Johnson v. Arvin-Edison Water Storage District (2009) 174
Cal.App.4th 729, 736.) As a result, provisions of the Labor Code apply only to private sector
employees unless they are specifically made applicable to public employees. (Id.) Plaintiffs cite
no language in any of the Labor Code provisions upon which the First through Sixth Causes of
Action are based that indicates they apply to public employees or employees of public agencies.
Plaintiffs’ reliance on Gateway Community Charters v. Spiess (2017) 9 Cal.App.5th 499 is
misplaced, because that case involved a claim against a nonprofit public benefit corporation, not
a statutorily created public agency whose employees are public employees, and that has the same
rights and duties as a county-owned hospital. (See Health & Safety Code § 101850(a)(2)(C), (m),
(u), and (w)(3).) Nor is AHS liable for these claims under IWC Wage Order 5, which does not
apply (with certain exceptions not applicable here) to employees of a city, county, or special
district. (See Section 1(C).) AHS is a statutorily created public agency whose employees are
public employees and that has the same rights and duties as a county-owned hospital, and
therefore is not liable pursuant to IWC Wage Order 5.
The demurrer to the Seventh Cause of Action under the Private Attorney General Act (“PAGA”)
is SUSTAINED, WITHOUT LEAVE TO AMEND. PAGA applies to claims against a “person”,
as defined in Labor Code § 18. (See Labor Code § 2699(b).) Labor Code § 18 defines a “person”
as a “person, association, organization, partnership, business trust, limited liability company, or
corporation”. AHS, a public agency, does not fall within the definition of “person” under Labor
ORDER re: Ruling on Submitted Matter Page 1 of 3
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Rene C. Davidson Courthouse
Code § 18. Moreover, a PAGA claim is derivative of the underlying statutory violation. (See
Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147 and Gomez v. Regents of the
University of California (2021) 63 Cal.App.5th 386, 404-405.) As explained above, AHS is not
liable for the alleged Labor Code violations that form the basis for Plaintiffs’ PAGA claim.
Finally, as a public agency, AHS is not liable for damages imposed by way of punishing the
defendant, such as PAGA civil penalties. (See Government Code § 818.)
The demurrer to the Tenth Cause of Action for Constructive Wrongful Termination is
SUSTAINED, WITHOUT LEAVE TO AMEND. If the Tenth Cause of Action is based on
common law, it cannot be asserted against a public entity. (See Miklosy v. Regents of the
University of California (2008) 44 Cal.4th 876, 989-900.) If the Tenth Cause of Action is based
on Government Code § 12940(a), it is duplicative of Plaintiffs’ Eighth Cause of Action and thus
superfluous. If Plaintiffs contend that their Eighth Cause of Action, as presently pled, does not
sufficiently encompass their claim for discrimination based on Plaintiff Stone’s alleged
constructive termination, they may amend their Eighth Cause of Action to fully allege that claim.
The demurrer to the Thirteenth Cause of Action for Declaratory and Injunctive Relief is
SUSTAINED, WITH LEAVE TO AMEND. Plaintiff Kunwar fails to allege any declaration of
rights and duties to which she is entitled and that is necessary and proper based on the facts
alleged. The declaration Kunwar seeks in First Amended Complaint, paragraph 133(a) (i.e., that
the actions of AHS and Defendant McNichol “are knowing and intentional and foster a hostile
work environment for Kunwar”) is entirely duplicative of, and subsumed within, Plaintiffs’
Eighth and Eleventh Causes of Action. Kunwar may request injunctive relief under FEHA (see,
e.g., Aguilar v. Avis Rent a Car System Inc. (1999) 21 Cal.4th 121, 128), but the injunction that
Kunwar seeks in First Amended Complaint paragraph 133(b) is too vague and overbroad to be
enforceable. (See Evans v. Evans (2008) 162 Cal.App.4th 1157, 1169; in addition, compare the
injunction found to be valid in Aguilar, supra, 21 Cal.4th at 128 – enjoining a specific coworker
from using “derogatory racial or ethnic epithets” and “uninvited intentional touching” – with the
far more vague and amorphous injunctive relief sought in First Amended Complaint paragraph
133(b)(i)-(ii).) Plaintiff Kunwar is given leave to amend to request the type of specific and
narrowly tailored injunctive relief found to be valid in Aguilar, supra.
AHS’s Requests for Judicial Notice are GRANTED. Plaintiffs’ Request for Judicial Notice is
GRANTED as to Exhibits A-D to the Request but DENIED as to Exhibit E to the Request.
Exhibit E (excerpts from a 2009 treatise) does not fall within any category of information for
which judicial notice can be granted pursuant to Evidence Code § 452.
AHS shall serve Notice of Entry of Order on Plaintiffs. Plaintiffs shall have 10 days to amend,
running from service of Notice of Entry of Order on Plaintiffs by AHS. AHS shall have 10 days
thereafter to respond.
Dated: 11/06/2021
ORDER re: Ruling on Submitted Matter Page 2 of 3
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Rene C. Davidson Courthouse
ORDER re: Ruling on Submitted Matter Page 3 of 3
1 PROOF OF SERVICE
2 I, the undersigned, am employed by RENNE PUBLIC LAW GROUP. My business address is
350 Sansome Street, Suite 300, San Francisco, California 94104. I am readily familiar with the business
3 practices of this office. I am over the age of 18 and not a party to this action.
4 On November 9, 2021, I served the following document(s):
5 NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED
COMPLAINT
6
by the following method(s):
7
Electronic Mail. Based on an agreement of the parties to accept service by e-mail, copies of the
8 above document(s) in PDF format were transmitted to the e-mail addresses of the parties on the
attached Service List on November 9, 2021.
9
10 SERVICE LIST
11 David Y. Imai
Law Offices of David Y. Imai
12
311 Bonita Drive
13 Aptos, California 95003
Telephone: (831) 662-1706
14 Email: davidimai@sbcglobal.net
RENNE PUBLIC LAW GROUP
15 Attorneys for Plaintiffs
Attorneys at Law
TAMELIN STONE, AMENDA KUNWAR, on
16
behalf of themselves and all others similarly
17 situated
18 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on November 9, 2021at Fairfield, California.
19
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21 Karen R. Beaton
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NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734
Preview
1 GEOFFREY SPELLBERG (SBN 121079) gspellberg@publiclawgroup.com 2 LORI S. LIU (SBN 225599) lliu@publiclawgroup.com 3 ANASTASIA BONDARCHUK (SBN 309091) abonderchuk@publiclawgroup.com 4 RENNE PUBLIC LAW GROUP 350 Sansome Street, Suite 300 5 San Francisco, California 94104 Telephone: (415) 848-7200 6 Facsimile: (415) 848-7230 7 Attorneys for Defendant ALAMEDA HEALTH SYSTEM 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF ALAMEDA 11 12 TAMELIN STONE, AMANDA KUNWAR, on Case No. RG21092734 13 behalf of themselves and all others similarly situated, ASSIGNED FOR ALL PURPOSES TO 14 Judge Noёl Wise Plaintiffs, DEPARTMENT 24 RENNE PUBLIC LAW GROUP 15 Attorneys at Law v. EXEMPT FROM FEES (GOV. CODE § 6103) 16 HIGHLAND HOSPITAL, a business entity form 17 unknown; ALAMEDA HEALTH SYSTEM, a NOTICE OF ENTRY OF ORDER RE: Public Hospital Authority; and DOES 1 to 100, DEMURRER TO FIRST AMENDED 18 inclusive. COMPLAINT 19 Defendants. Action Filed: March 19, 2021 20 21 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 22 PLEASE TAKE NOTICE that on November 6, 2021, the Court sustained Defendant Alameda 23 Health System’s Demurrer to Plaintiffs’ First Amended Complaint, with leave to amend. A true and 24 correct copy of that Order is attached hereto as Exhibit “A.” 25 26 27 28 -1- NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734 1 Dated: November 9, 2021 RENNE PUBLIC LAW GROUP 2 3 By: 4 LORI S. LIU 5 Attorneys for Defendant ALAMEDA HEALTH SYSTEM 6 7 8 9 10 11 12 13 14 RENNE PUBLIC LAW GROUP 15 Attorneys at Law 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734 EXHIBIT A EXHIBIT A SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Rene C. Davidson Courthouse Tamelin Stone et al No. RG21092734 Plaintiff/Petitioner(s) vs. Date: 11/06/2021 Highland Hospital et al Time: 5:10 PM Defendant/Respondent(s) Dept: 24 Judge: Noël Wise ORDER re: Ruling on Submitted Matter The Court, having taken the matter under submission on 10/07/2021, now rules as follows: The Demurrer to the First Amended Complaint Filed by Alameda Health System filed by Alameda Health System on 07/15/2021 is Sustained with Leave to Amend. The Court rules as follows on the Demurrer to Plaintiffs’ First Amended Complaint by Defendant Alameda Health System (“AHS”): The demurrers to the First through Sixth Causes of Action (all based on alleged violations of various Labor Code provisions) are SUSTAINED, WITHOUT LEAVE TO AMEND. AHS is a statutorily created public agency with all the rights and duties set forth in state law with respect to hospitals owned or operated by a county. (See Health & Safety Code § 101850(a)(2)(C), (m), and (u).) Absent express words to the contrary, public agencies are not included within the general words of a statute. (See Johnson v. Arvin-Edison Water Storage District (2009) 174 Cal.App.4th 729, 736.) As a result, provisions of the Labor Code apply only to private sector employees unless they are specifically made applicable to public employees. (Id.) Plaintiffs cite no language in any of the Labor Code provisions upon which the First through Sixth Causes of Action are based that indicates they apply to public employees or employees of public agencies. Plaintiffs’ reliance on Gateway Community Charters v. Spiess (2017) 9 Cal.App.5th 499 is misplaced, because that case involved a claim against a nonprofit public benefit corporation, not a statutorily created public agency whose employees are public employees, and that has the same rights and duties as a county-owned hospital. (See Health & Safety Code § 101850(a)(2)(C), (m), (u), and (w)(3).) Nor is AHS liable for these claims under IWC Wage Order 5, which does not apply (with certain exceptions not applicable here) to employees of a city, county, or special district. (See Section 1(C).) AHS is a statutorily created public agency whose employees are public employees and that has the same rights and duties as a county-owned hospital, and therefore is not liable pursuant to IWC Wage Order 5. The demurrer to the Seventh Cause of Action under the Private Attorney General Act (“PAGA”) is SUSTAINED, WITHOUT LEAVE TO AMEND. PAGA applies to claims against a “person”, as defined in Labor Code § 18. (See Labor Code § 2699(b).) Labor Code § 18 defines a “person” as a “person, association, organization, partnership, business trust, limited liability company, or corporation”. AHS, a public agency, does not fall within the definition of “person” under Labor ORDER re: Ruling on Submitted Matter Page 1 of 3 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Rene C. Davidson Courthouse Code § 18. Moreover, a PAGA claim is derivative of the underlying statutory violation. (See Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147 and Gomez v. Regents of the University of California (2021) 63 Cal.App.5th 386, 404-405.) As explained above, AHS is not liable for the alleged Labor Code violations that form the basis for Plaintiffs’ PAGA claim. Finally, as a public agency, AHS is not liable for damages imposed by way of punishing the defendant, such as PAGA civil penalties. (See Government Code § 818.) The demurrer to the Tenth Cause of Action for Constructive Wrongful Termination is SUSTAINED, WITHOUT LEAVE TO AMEND. If the Tenth Cause of Action is based on common law, it cannot be asserted against a public entity. (See Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876, 989-900.) If the Tenth Cause of Action is based on Government Code § 12940(a), it is duplicative of Plaintiffs’ Eighth Cause of Action and thus superfluous. If Plaintiffs contend that their Eighth Cause of Action, as presently pled, does not sufficiently encompass their claim for discrimination based on Plaintiff Stone’s alleged constructive termination, they may amend their Eighth Cause of Action to fully allege that claim. The demurrer to the Thirteenth Cause of Action for Declaratory and Injunctive Relief is SUSTAINED, WITH LEAVE TO AMEND. Plaintiff Kunwar fails to allege any declaration of rights and duties to which she is entitled and that is necessary and proper based on the facts alleged. The declaration Kunwar seeks in First Amended Complaint, paragraph 133(a) (i.e., that the actions of AHS and Defendant McNichol “are knowing and intentional and foster a hostile work environment for Kunwar”) is entirely duplicative of, and subsumed within, Plaintiffs’ Eighth and Eleventh Causes of Action. Kunwar may request injunctive relief under FEHA (see, e.g., Aguilar v. Avis Rent a Car System Inc. (1999) 21 Cal.4th 121, 128), but the injunction that Kunwar seeks in First Amended Complaint paragraph 133(b) is too vague and overbroad to be enforceable. (See Evans v. Evans (2008) 162 Cal.App.4th 1157, 1169; in addition, compare the injunction found to be valid in Aguilar, supra, 21 Cal.4th at 128 – enjoining a specific coworker from using “derogatory racial or ethnic epithets” and “uninvited intentional touching” – with the far more vague and amorphous injunctive relief sought in First Amended Complaint paragraph 133(b)(i)-(ii).) Plaintiff Kunwar is given leave to amend to request the type of specific and narrowly tailored injunctive relief found to be valid in Aguilar, supra. AHS’s Requests for Judicial Notice are GRANTED. Plaintiffs’ Request for Judicial Notice is GRANTED as to Exhibits A-D to the Request but DENIED as to Exhibit E to the Request. Exhibit E (excerpts from a 2009 treatise) does not fall within any category of information for which judicial notice can be granted pursuant to Evidence Code § 452. AHS shall serve Notice of Entry of Order on Plaintiffs. Plaintiffs shall have 10 days to amend, running from service of Notice of Entry of Order on Plaintiffs by AHS. AHS shall have 10 days thereafter to respond. Dated: 11/06/2021 ORDER re: Ruling on Submitted Matter Page 2 of 3 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Rene C. Davidson Courthouse ORDER re: Ruling on Submitted Matter Page 3 of 3 1 PROOF OF SERVICE 2 I, the undersigned, am employed by RENNE PUBLIC LAW GROUP. My business address is 350 Sansome Street, Suite 300, San Francisco, California 94104. I am readily familiar with the business 3 practices of this office. I am over the age of 18 and not a party to this action. 4 On November 9, 2021, I served the following document(s): 5 NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT 6 by the following method(s): 7 Electronic Mail. Based on an agreement of the parties to accept service by e-mail, copies of the 8 above document(s) in PDF format were transmitted to the e-mail addresses of the parties on the attached Service List on November 9, 2021. 9 10 SERVICE LIST 11 David Y. Imai Law Offices of David Y. Imai 12 311 Bonita Drive 13 Aptos, California 95003 Telephone: (831) 662-1706 14 Email: davidimai@sbcglobal.net RENNE PUBLIC LAW GROUP 15 Attorneys for Plaintiffs Attorneys at Law TAMELIN STONE, AMENDA KUNWAR, on 16 behalf of themselves and all others similarly 17 situated 18 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 9, 2021at Fairfield, California. 19 20 21 Karen R. Beaton 22 23 24 25 26 27 28 -3- NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734