Preview
GEOFFREY SPELLBERG (SBN 121079) FILED
gspellberg@publiclawgroup.com ALAMEDA COUNTY
LORI S. LIU (SBN 225599)
lliu@publiclawgroup.com DEC 02 2021
ANASTASIA BONDARCHUK (SBN 309091) CLERK OF THE SUPERIOR COURT
abonderchuk@publiclawgroup.com B
RENNE PUBLIC LAW GROUP
£
Deputy
350 Sansome Street, Suite 300
San Francisco, California 94104
Telephone: (415) 848-7200
Facsimile: (415) 848-7230
ON
Attorneys for Defendants
SI
ALAMEDA HEALTH SYSTEM and
CO”
DONNA MCNICHOL
Oo.
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF ALAMEDA
12
13 TAMELIN STONE, AMANDA KUNWAR, on Case No. RG21092734
behalf of themselves and all others similarly
14 situated, ASSIGNED FOR ALL PURPOSES TO
Judge Noél Wise
15
GROUP
Plaintiffs, DEPARTMENT 24
Law
16
LAW
V.
at
EXEMPT FROM FEES (GOV. CODE § 6103)
Attorneys
PUBLIC
17 HIGHLAND HOSPITAL, a business entity form
unknown; ALAMEDA HEALTH SYSTEM, a
18 DECLARATION OF ANASTASIA
RENNE
Public Hospital Authority; DONNA MCNICHOL >
BONDARCHUK IN SUPPORT OF EX PARTE
and individual; and DOES 1 to 100, inclusive.
19 APPLICATION FOR DISMISSAL OF
ENTIRE CASE
Defendants.
20 Date: December 3, 2021
21 Time: 9:30 a.m.
Fax
Dept: 24
22
Action Filed: March 19, 2021
23
By
24
25
Filed
26
27
28
DECLARATION OF A. BONDARCHUK ISO EY PARTE CASE NO. RG21092734
APPLICATION FOR DISMISSAL OF ENTIRE CASE
I,Anastasia Bondarchuk, declare:
1. I have personal knowledge of the following facts and if called as a witness Icould and
would testify competently thereto.
2: I am the attorney of record for Defendant Alameda Health System and Donna McNichol
in this action brought by Plaintiffs Tamelin Stone and Amanda Kunwar.
3 After Plaintiffs filed their First Amended Complaint, Defendant AHS demurred to the
ND
First through Seventh, Tenth and Thirteenth Causes of Action and the Court sustained that demurrer. The
Court’s Order sustaining the demurrer is attached as Exhibit A hereto. By the Court’s Order, Plaintiffs
Oo
had ten days to amend their complaint.
Co
10 4. Defendants served the Notice of Entry of Order by e-mail on November 9, 2021.
11 Accordingly, adding the statutory two days for electronic service, Plaintiffs amended pleading was due
12 on November 21, 2021. The Notice of Entry of Order isattached as Exhibit B hereto.
13 53 I gave notice to Mr. Imai about the date and time of this hearing on December 1, 2021 at
14 6:22 p.m. Attached as Exhibit C is acopy of my email correspondence giving ex parte notice to Mr.
15
GROUP
Imai.
Law
16
LAW
6. I declare under penalty of perjury under the laws of the State of California that the
Attorneys at
PUBLIC
17 foregoing is true and correct.
18
RENNE
Executed this First day of December, 2021, at San Francisco, California.
19 //
20 ee: / fant
Anastasia Bondarchuk
21
22
23
24
25
26
27
28
DECLARATION OF A. BONDARCHUK ISO EX PARTE CASE NO. RG21092734
APPLICATION FOR DISMISSAL OF ENTIRE CASE
EXHIBIT A
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Rene C. Davidson Courthouse
Tamelin Stone etal No. RG21092734
Plaintiff/Petitioner(s)
vs.
: 21
Highland Hospital et al ee rh
Defendant/Respondent(s) : ‘
Dept: 24
Judge: Noél 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.Sth 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 isAHS 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 isnot 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 1of 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.Sth 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, itcannot be asserted against a public entity. (See Miklosy v. Regents of the
University of California (2008) 44 Cal.4th 876, 989-900.) Ifthe Tenth Cause of Action isbased
on Government Code § 12940(a), itis 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”) isentirely 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.
Mi
Dated: 11/06/2021
Noél Wise | Judge
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
EXHIBIT B
EXHIBIT B
GEOFFREY SPELLBERG (SBN 121079)
gspellberg@publiclawgroup.com
LORI S. LIU (SBN 225599) ELECTRONICALLY FILED
lliu@publiclawgroup.com
ANASTASIA BONDARCHUK (SBN 309091)
Superior Court of California,
abonderchuk @publiclawgroup.com County of Alameda
RENNE
350
PUBLIC
Sansome
LAW
Street, Suite
GROUP
300
11/09/2021 at 04:55:42 PM
San Francisco, California 94104 By: CherylClark,Deputy Clerk
NH
Telephone: (415) 848-7200
Facsimile: (415) 848-7230
Do
Attorneys for Defendant
N
ALAMEDA HEALTH SYSTEM
Oe
So
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 Noél Wise
Plaintiffs, DEPARTMENT 24
GROUP
15
V. EXEMPT FROM FEES (GOV. CODE § 6103)
Law
LAW
16
at
HIGHLAND HOSPITAL, a business entity form
Attorneys
PUBLIC
17 unknown; ALAMEDA HEALTH SYSTEM, a NOTICE OF ENTRY OF ORDER RE:
Public Hospital Authority; and DOES 1 to 100, DEMURRER TO FIRST AMENDED
RENNE
18 inclusive. COMPLAINT
19 Defendants. Action Filed: March 19, 2021
20
al 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.”
Z
26
2)
28
NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734
Dated: November 9, 2021 RENNE PUBLIC LAW GROUP
» lr Lb Sl.
Ww
LORI S. LIU
-
Attorneys for Defendant
ALAMEDA HEALTH SYSTEM
ND
eo
So
10
11
12
13
14
15
GROUP
Law
16
LAW
Attorneys at
PUBLIC
17
18
RENNE
19
20
21
22
23
24
25
26
27
28
hs
NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Rene C. Davidson Courthouse
Tamelin Stone et al No. RG21092734
Plaintiff/Petitioner(s)
VS. .
Highland Hospital et al Fa, Se
Defendant/Respondeni(s) i :
Dept: 24
Judge: Noél 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 (allbased 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.Sth 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 isAHS 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 isnot liable pursuant to [WC 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 1of 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 isnot
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. Ifthe Tenth Cause of Action isbased on
common law, itcannot 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 isduplicative 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 failsto allege any declaration of:
rights and duties to which she isentitled 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)-(i1).) 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 fallwithin 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.
Nie
Dated: 11/06/2021
Noél Wise | Judge
ORDER re:Ruling on Submitted Matter Page 2 of3
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
Rene C. Davidson Courthouse
ORDER re:Ruling on Submitted Matter Page 3of 3
PROOF OF SERVICE
I,the undersigned, am employed by RENNE PUBLIC LAW GROUP. My business address is
bh
350 Sansome Street, Suite 300, San Francisco, California 94104. I am readily familiar with the business
Be Oo!
practices of this office. I am over the age of 18 and not a party to this action.
On November 9, 2021, I served the following document(s):
NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED
On
COMPLAINT
DW
by the following method(s):
XN
x] Electronic Mail. Based on an agreement of the parties to accept service by e-mail, copies of the
above document(s) in PDF format were transmitted to the e-mail addresses of the parties on the
ea
attached Service List on November 9, 2021.
oo
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
15
GROUP
Attorneys for Plaintiffs
Law
TAMELIN STONE, AMENDA KUNWAR, on
16
LAW
at
behalf of themselves and all others similarly
Attorneys
PUBLIC
17 situated —
18
RENNE
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, 202 1at Fairfield, California.
19
20 Kaw Beda
21 Karen R. Beaton
22
23
24
25
26
27
28
Be
NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734
EXHIBIT C
EXHIBIT C
From: AnastasiaBondarchuk
To: davidimai@sbcgiobal.net
Ce: GeoffSpellberg;
LoriLiu;KarenBeaton
Subject: Stoneetalv HighlandHospital
etal- AlamedaCountySuperior
CourtCase No.RG21092734 -NoticeofEx Parte
Hearing
Date: Wednesday, December1, 20216:20:00PM
Attachments: image00i.png
imageQ02.ong
imageQ04.png
Hi David,
Please take notice that we willbe making an ex parte appearance in the above-referenced matter
requesting dismissal of the case on Friday, December 3,2021 at9:30 a.m. inDepartment 24 of the
Alameda County Superior Court located at 1221 Oak Street, Oakland, California 94612. We will send
you the moving papers shortly.
Best,
Anastasia
AnastasiaBondarchuk
_Associate
Confidentiality
Notice:
PROOF OF SERVICE
I,the undersigned, am employed by RENNE PUBLIC LAW GROUP. My business address is
WN
350 Sansome Street, Suite 300, San Francisco, California 94104. I am readily familiar with the business
practices of this office. Iam over the age of 18 and not a party to this action.
WY
On December 1,2021, I served the following document(s):
-
DECLARATION OF ANASTASIA BONDARCHUK IN SUPPORT OF EX PARTE
APPLICATION FOR DISMISSAL OF ENTIRE CASE
DS
by the following method(s):
nN
[%] Electronic Mail. Based on an agreement of the parties to accept service by e-mail, copies of the
above document(s) in PDF format were transmitted to the e-mail addresses of the parties on the
oo
attached Service List on December 1, 2021.
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@sbeglobal.net
15
GROUP
Attorneys for Plaintiffs
Law
TAMELIN STONE, AMENDA KUNWAR, on
16
LAW
at
behalf of themselves and allothers similarly
Attorneys
PUBLIC
17 Situated
18
RENNE
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on December 1, 2021at Fairfield, California.
Horr. Broder
19
20
21 Karen R. Beaton
22
23
24
25
26
27
28
DECLARATION OF A. BONDARCHUK ISO EX PARTE CASE NO. RG21092734
APPLICATION FOR DISMISSAL OF ENTIRE CASE
Preview
GEOFFREY SPELLBERG (SBN 121079) FILED gspellberg@publiclawgroup.com ALAMEDA COUNTY LORI S. LIU (SBN 225599) lliu@publiclawgroup.com DEC 02 2021 ANASTASIA BONDARCHUK (SBN 309091) CLERK OF THE SUPERIOR COURT abonderchuk@publiclawgroup.com B RENNE PUBLIC LAW GROUP £ Deputy 350 Sansome Street, Suite 300 San Francisco, California 94104 Telephone: (415) 848-7200 Facsimile: (415) 848-7230 ON Attorneys for Defendants SI ALAMEDA HEALTH SYSTEM and CO” DONNA MCNICHOL Oo. 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF ALAMEDA 12 13 TAMELIN STONE, AMANDA KUNWAR, on Case No. RG21092734 behalf of themselves and all others similarly 14 situated, ASSIGNED FOR ALL PURPOSES TO Judge Noél Wise 15 GROUP Plaintiffs, DEPARTMENT 24 Law 16 LAW V. at EXEMPT FROM FEES (GOV. CODE § 6103) Attorneys PUBLIC 17 HIGHLAND HOSPITAL, a business entity form unknown; ALAMEDA HEALTH SYSTEM, a 18 DECLARATION OF ANASTASIA RENNE Public Hospital Authority; DONNA MCNICHOL > BONDARCHUK IN SUPPORT OF EX PARTE and individual; and DOES 1 to 100, inclusive. 19 APPLICATION FOR DISMISSAL OF ENTIRE CASE Defendants. 20 Date: December 3, 2021 21 Time: 9:30 a.m. Fax Dept: 24 22 Action Filed: March 19, 2021 23 By 24 25 Filed 26 27 28 DECLARATION OF A. BONDARCHUK ISO EY PARTE CASE NO. RG21092734 APPLICATION FOR DISMISSAL OF ENTIRE CASE I,Anastasia Bondarchuk, declare: 1. I have personal knowledge of the following facts and if called as a witness Icould and would testify competently thereto. 2: I am the attorney of record for Defendant Alameda Health System and Donna McNichol in this action brought by Plaintiffs Tamelin Stone and Amanda Kunwar. 3 After Plaintiffs filed their First Amended Complaint, Defendant AHS demurred to the ND First through Seventh, Tenth and Thirteenth Causes of Action and the Court sustained that demurrer. The Court’s Order sustaining the demurrer is attached as Exhibit A hereto. By the Court’s Order, Plaintiffs Oo had ten days to amend their complaint. Co 10 4. Defendants served the Notice of Entry of Order by e-mail on November 9, 2021. 11 Accordingly, adding the statutory two days for electronic service, Plaintiffs amended pleading was due 12 on November 21, 2021. The Notice of Entry of Order isattached as Exhibit B hereto. 13 53 I gave notice to Mr. Imai about the date and time of this hearing on December 1, 2021 at 14 6:22 p.m. Attached as Exhibit C is acopy of my email correspondence giving ex parte notice to Mr. 15 GROUP Imai. Law 16 LAW 6. I declare under penalty of perjury under the laws of the State of California that the Attorneys at PUBLIC 17 foregoing is true and correct. 18 RENNE Executed this First day of December, 2021, at San Francisco, California. 19 // 20 ee: / fant Anastasia Bondarchuk 21 22 23 24 25 26 27 28 DECLARATION OF A. BONDARCHUK ISO EX PARTE CASE NO. RG21092734 APPLICATION FOR DISMISSAL OF ENTIRE CASE EXHIBIT A EXHIBIT A SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Rene C. Davidson Courthouse Tamelin Stone etal No. RG21092734 Plaintiff/Petitioner(s) vs. : 21 Highland Hospital et al ee rh Defendant/Respondent(s) : ‘ Dept: 24 Judge: Noél 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.Sth 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 isAHS 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 isnot 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 1of 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.Sth 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, itcannot be asserted against a public entity. (See Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876, 989-900.) Ifthe Tenth Cause of Action isbased on Government Code § 12940(a), itis 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”) isentirely 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. Mi Dated: 11/06/2021 Noél Wise | Judge 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 EXHIBIT B EXHIBIT B GEOFFREY SPELLBERG (SBN 121079) gspellberg@publiclawgroup.com LORI S. LIU (SBN 225599) ELECTRONICALLY FILED lliu@publiclawgroup.com ANASTASIA BONDARCHUK (SBN 309091) Superior Court of California, abonderchuk @publiclawgroup.com County of Alameda RENNE 350 PUBLIC Sansome LAW Street, Suite GROUP 300 11/09/2021 at 04:55:42 PM San Francisco, California 94104 By: CherylClark,Deputy Clerk NH Telephone: (415) 848-7200 Facsimile: (415) 848-7230 Do Attorneys for Defendant N ALAMEDA HEALTH SYSTEM Oe So 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 Noél Wise Plaintiffs, DEPARTMENT 24 GROUP 15 V. EXEMPT FROM FEES (GOV. CODE § 6103) Law LAW 16 at HIGHLAND HOSPITAL, a business entity form Attorneys PUBLIC 17 unknown; ALAMEDA HEALTH SYSTEM, a NOTICE OF ENTRY OF ORDER RE: Public Hospital Authority; and DOES 1 to 100, DEMURRER TO FIRST AMENDED RENNE 18 inclusive. COMPLAINT 19 Defendants. Action Filed: March 19, 2021 20 al 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.” Z 26 2) 28 NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734 Dated: November 9, 2021 RENNE PUBLIC LAW GROUP » lr Lb Sl. Ww LORI S. LIU - Attorneys for Defendant ALAMEDA HEALTH SYSTEM ND eo So 10 11 12 13 14 15 GROUP Law 16 LAW Attorneys at PUBLIC 17 18 RENNE 19 20 21 22 23 24 25 26 27 28 hs NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Rene C. Davidson Courthouse Tamelin Stone et al No. RG21092734 Plaintiff/Petitioner(s) VS. . Highland Hospital et al Fa, Se Defendant/Respondeni(s) i : Dept: 24 Judge: Noél 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 (allbased 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.Sth 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 isAHS 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 isnot liable pursuant to [WC 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 1of 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 isnot 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. Ifthe Tenth Cause of Action isbased on common law, itcannot 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 isduplicative 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 failsto allege any declaration of: rights and duties to which she isentitled 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)-(i1).) 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 fallwithin 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. Nie Dated: 11/06/2021 Noél Wise | Judge ORDER re:Ruling on Submitted Matter Page 2 of3 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA Rene C. Davidson Courthouse ORDER re:Ruling on Submitted Matter Page 3of 3 PROOF OF SERVICE I,the undersigned, am employed by RENNE PUBLIC LAW GROUP. My business address is bh 350 Sansome Street, Suite 300, San Francisco, California 94104. I am readily familiar with the business Be Oo! practices of this office. I am over the age of 18 and not a party to this action. On November 9, 2021, I served the following document(s): NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED On COMPLAINT DW by the following method(s): XN x] Electronic Mail. Based on an agreement of the parties to accept service by e-mail, copies of the above document(s) in PDF format were transmitted to the e-mail addresses of the parties on the ea attached Service List on November 9, 2021. oo 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 15 GROUP Attorneys for Plaintiffs Law TAMELIN STONE, AMENDA KUNWAR, on 16 LAW at behalf of themselves and all others similarly Attorneys PUBLIC 17 situated — 18 RENNE 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, 202 1at Fairfield, California. 19 20 Kaw Beda 21 Karen R. Beaton 22 23 24 25 26 27 28 Be NOTICE OF ENTRY OF ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT Case No. RG21092734 EXHIBIT C EXHIBIT C From: AnastasiaBondarchuk To: davidimai@sbcgiobal.net Ce: GeoffSpellberg; LoriLiu;KarenBeaton Subject: Stoneetalv HighlandHospital etal- AlamedaCountySuperior CourtCase No.RG21092734 -NoticeofEx Parte Hearing Date: Wednesday, December1, 20216:20:00PM Attachments: image00i.png imageQ02.ong imageQ04.png Hi David, Please take notice that we willbe making an ex parte appearance in the above-referenced matter requesting dismissal of the case on Friday, December 3,2021 at9:30 a.m. inDepartment 24 of the Alameda County Superior Court located at 1221 Oak Street, Oakland, California 94612. We will send you the moving papers shortly. Best, Anastasia AnastasiaBondarchuk _Associate Confidentiality Notice: PROOF OF SERVICE I,the undersigned, am employed by RENNE PUBLIC LAW GROUP. My business address is WN 350 Sansome Street, Suite 300, San Francisco, California 94104. I am readily familiar with the business practices of this office. Iam over the age of 18 and not a party to this action. WY On December 1,2021, I served the following document(s): - DECLARATION OF ANASTASIA BONDARCHUK IN SUPPORT OF EX PARTE APPLICATION FOR DISMISSAL OF ENTIRE CASE DS by the following method(s): nN [%] Electronic Mail. Based on an agreement of the parties to accept service by e-mail, copies of the above document(s) in PDF format were transmitted to the e-mail addresses of the parties on the oo attached Service List on December 1, 2021. 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@sbeglobal.net 15 GROUP Attorneys for Plaintiffs Law TAMELIN STONE, AMENDA KUNWAR, on 16 LAW at behalf of themselves and allothers similarly Attorneys PUBLIC 17 Situated 18 RENNE I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 1, 2021at Fairfield, California. Horr. Broder 19 20 21 Karen R. Beaton 22 23 24 25 26 27 28 DECLARATION OF A. BONDARCHUK ISO EX PARTE CASE NO. RG21092734 APPLICATION FOR DISMISSAL OF ENTIRE CASE