Opinion
D072377
12-14-2018
LYNNE BIELSKA, Plaintiff and Appellant, v. ASPIRE HOME HEALTH CARE, INC., Defendant and Respondent.
Bohm Law Group, Lawrance A. Bohm, Zane E. Hilton; and Charles E. Moore for Plaintiff and Appellant. Burke, Williams & Sorensen, Allan E. Ceran and Traci I. Park for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00034875-CU OE-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed. Bohm Law Group, Lawrance A. Bohm, Zane E. Hilton; and Charles E. Moore for Plaintiff and Appellant. Burke, Williams & Sorensen, Allan E. Ceran and Traci I. Park for Defendant and Respondent.
The trial court summarily adjudicated certain causes of action alleged by Lynne Bielska in favor of her former employer, Aspire Home Health Care, Inc. (Aspire). After the trial court denied Bielska's request for leave to amend her complaint, the parties entered into a stipulated judgment. Bielska appeals, contending the trial court erred by summarily adjudicating her causes of action for retaliatory discharge under Labor Code section 6310 and wrongful termination in violation of public policy, and by denying her leave to amend. We affirm.
Undesignated statutory references are to the Labor Code.
FACTUAL AND PROCEDURAL BACKGROUND
Aspire provides home health care services for the San Diego area. Aspire employs registered nurses as "patient care managers" to see patients in their homes and develop patient care plans. Aspire employed Bielska as a registered nurse in August 2011. She alleged that Aspire shorted her pay and did not properly pay her overtime. In November and December 2011 she allegedly complained to management regarding patient care. In response to her complaints she alleges that Aspire adopted a "no gossip policy" (the policy) to prevent employees such as her from disclosing Aspire's violations to government agencies or law enforcement or others with authority to investigate employee complaints.
In January or February 2012 Bielska allegedly complained to Aspire's patient advocate, Stephanie Husley, and Dr. Dev Brar, Aspire's president, that Scotty Bates, Aspire's human resources director in San Diego, was acting in a clinical capacity even though he lacked any clinical training. On February 13, 2012, Bielska e-mailed Tennell Mason, her direct supervisor, about the violations she had witnessed. A few days later, Bates fired her for violating the policy. Bielska claims that her complaints regarding Aspire's failure to comply with Health and Safety Code section 1727.5 were the actual reasons for her termination.
In February 2013 Bielska sued Aspire. Ultimately, Bielska filed her operative third amended complaint in March 2015 alleging breach of employment contract, violations of sections 203, 1194, 6310 and 232.5, and a violation of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.). She also pled a cause of action for wrongful termination in violation of public policy (Tameny claim), tethered to a cause of action for violation of section 1102.5 and "for complaining about Aspire's violations of the Health and Safety Code, the Medicare regulations and Title 22 of the California Code of Regulations."
A Tameny claim, or cause of action for wrongful discharge in violation of public policy, is a common law, judicially created tort. (See Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 176-178; Palmer v. Regents of the University of California (2003) 107 Cal.App.4th 899, 909.)
Aspire moved for summary adjudication of Bielska's termination-related causes of action. The trial court granted the motion. Thereafter, Aspire filed an ex parte application seeking clarification of the court's ruling based on Bielska's assertion that she had a surviving wrongful termination claim based on her complaints about nursing violations. Aspire subsequently filed a noticed motion for clarification of the trial court's ruling to confirm that no termination claims remained for trial. Bielska opposed the motion arguing that Aspire did not seek summary adjudication of the entirety of her wrongful termination cause of action and that her operative complaint put Aspire on notice that she had tethered this cause of action to regulations regarding "patient care."
After hearing argument, the trial court stated that the entire wrongful termination cause of action had been dismissed and that Bielska's causes of action for breach of contract and failure to pay wages remained for trial. Bielska responded to this ruling by requesting leave to file a fourth amended complaint. The trial court denied the motion finding the request untimely and unduly prejudicial to Aspire.
The parties then settled Bielska's wage claims and Aspire's cross-complaint and stipulated to the entry of judgment. Bielska timely appealed from the judgment.
DISCUSSION
I. GENERAL LEGAL PRINCIPLES
We independently review an order granting summary adjudication, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The pleadings " 'set the boundaries of the issues to be resolved at summary judgment.' " (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) Accordingly, we first identify the issues framed by the pleadings because it is those issues the papers must address. (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054.) Second, we determine if the moving party's evidence demonstrates the opponent cannot establish its claim and justifies a judgment in the moving party's favor. (Ibid.) Lastly, we determine whether the opposing party's evidence demonstrates a triable issue of material fact. (Ibid.) In determining whether there are triable issues of fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In performing our review, we are not bound by the trial court's stated rationale, but independently determine whether the record supports the trial court's conclusion that the plaintiff's claims failed as a matter of law. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)
II. RETALIATORY DISCHARGE CAUSE OF ACTION
A. Legal Principles
Section 6310 is part of the California Occupational Health and Safety Act (Cal-OSHA) (§ 6300 et seq.). Section 6310, subdivision (a)(1) bars retaliation against employees who report workplace safety issues:
"No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: [¶] (1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative."
The terms " '[s]afe, 'safety,' and 'health' " mean "such freedom from danger to the life, safety, or health of employees as the nature of the business reasonably permits." (§ 6306, subd. (a).) Section 6310, "independently and together with other provisions of Cal-OSHA, reflects a significant public policy interest in encouraging employees to report health and safety hazards existing in the workplace without fear of discrimination or reprisal." (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1350 (Ferrick).) To establish a prima facie case of retaliation, an employee must demonstrate that he or she engaged in protected activity and was subjected to an adverse employment action and some causal link exists between the activity and the adverse action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) If the plaintiff establishes a prima facie case, "the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action." (Ibid.) If the employer shows a legitimate reason for the adverse employment action, the burden shifts back to the employee to prove intentional retaliation. (Ibid.)
B. Analysis
Bielska contends the trial court improperly granted summary adjudication of her section 6310 claim because Aspire terminated her after she made good faith complaints to it about working conditions or practices she reasonably believed implicated employee health or safety concerns, including: (1) working overtime shifts back-to-back with Monday shifts because this "raised [her] concerns that the quality of work would not be what it should be if [she] had been working an eight- or ten-hour day"; (2) telling her supervisors, including Bates, about a patient visit at which she became physically ill due to the patient's unsanitary living conditions, which included dead animals, a "very odorous" infected wound, filth and grime, and possibly rotting food; (3) notifying Aspire's administration that she felt "uncomfortable" and "did not feel safe" seeing a patient who used heroin and lived in an unsafe neighborhood; and (4) e-mailing her supervisors about on-call practices leading to long shifts being stacked upon each other.
In summarily adjudicating Bielska's retaliatory discharge cause of action the trial court examined Bielska's complaints at the time she made them and ignored Bielska's "post-litigation" characterization of the nature of her complaints. The court found that Bielska's evidence "as a matter of law, [did] not constitute a violation of section 6310." We agree because the evidence in the record shows that Bielska's communications to Aspire during her employment did not constitute complaints as defined in section 6310.
" 'To establish a prima facie case of retaliation [under section 6310], a plaintiff must [first] show that she engaged in a protected activity.' " (Muller v. Auto. Club of So. Calif. (1998) 61 Cal.App.4th 431, 451 (Muller), disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) Specifically, an employee " 'must convey the information in a form which would reasonably alert his or her employer of the nature of the problem and the need to take corrective action.' " (Ferrick, supra, 231 Cal.App.4th at p. 1350-1351.) To constitute protected activity under section 6310, the plaintiff must report a workplace safety or health hazard. (Ferrick, at p. 1350.) Muller illustrates the type of complaint that does not constitute protected activity under section 6310.
In Muller, an insurance claims adjuster became frightened after receiving a series of angry and threatening telephone calls at work from a customer's son who berated and shouted obscenities at her and told her that he was "in the parking lot waiting for her to leave work." (Muller, supra, 61 Cal.App.4th at pp. 435-436.) The employee was discharged after she communicated to her employer specific security measures she wanted her employer to implement to accommodate her fear for her safety in the workplace. (Id. at pp. 436-438.) Among other things, the plaintiff brought a claim against her employer for wrongful termination in violation of public policy, and the trial court granted summary judgment in favor of the employer. (Id. at p. 435.) This court affirmed, noting that the employee's "anxiety disorder did not overnight render her office an unsafe workplace. There is a certain risk of crime in any workplace to which the general public has access. However, unless crime in the workplace is highly foreseeable, employers cannot reasonably be expected to insure against it." (Id. at p. 451.) The Muller court concluded that "[t]he voicing of a fear about one's safety in the workplace does not necessarily constitute a complaint about unsafe working conditions under . . . section 6310" and that plaintiff had "fail[ed] to raise a triable issue of fact as to whether she was terminated for complaining to [her employer] about unsafe working conditions in violation of . . . section 6310." (Id. at p. 452.)
In arguing that the trial court improperly granted summary adjudication of her section 6310 cause of action Bielska cited three specific examples in her opening brief of complaints she made to Aspire reasonably believing that they implicated employee health or safety concerns. These included alleged complaints regarding work shifts, a patient's home, and a patient's neighborhood. We address each complaint in turn.
1. Alleged complaints regarding work shifts
After filing her action against Aspire, Bielska characterized her complaints regarding work shifts as a safety issue pertaining to employee fatigue. Bielska testified at her first deposition that she complained about "on-call weekends" being unsafe for her and the quality of her work and patient care. Specifically, she complained to Bates, Aspire's human resources director in San Diego, that a second nurse should be helping with the weekend caseload. She also told Mason, her direct supervisor starting in January 2012, that she wanted help for on-call weekends. At her third deposition, when asked about weekend on-call shifts being unsafe, Bielska stated that the amount of work on the weekends was "entirely too much for one nurse." During the six months that she worked at Aspire she estimated that "at least twice" she felt too fatigued to work safely.
Bielska argues there is a triable issue whether her complaints to Aspire implicated safety issues. We reject this assertion. Rajwinder Gill, Bielska's supervisor from May 2011 to January 2012, testified that Bielska never complained regarding her safety driving long distances to see patients when she was tired.
Bielska sent an e-mail to Mason regarding on-call calendars a day before her termination. This e-mail stated: "What is the current process for staffing future on call? Has March been staffed? Do any of the nurses know if they've been staffed?? I know I haven't been asked. I think ALL RNs SHOULD BE GIVEN A COPY OF THE ON CALL SCHEDULE AS SOON AS IT IS COMPLETED FOR THAT MONTH. Scotty thinks its suficiant [sic] to use the outlook datebook emails, but they are not visual and easy to reference, and only sent out a week in advance. ALSO, Mr. new scheduler didn't know not to schedule the RN on call for the Thurs prior and the Tuesday after working the weekend. This will lead to scrambling to cover those visits. I told him, but we'll see . . . .")" This e-mail did not alert Aspire to any alleged safety issues regarding its work shifts. Moreover, when asked at deposition whether she complained to a manager or supervisor that working over eight hours a day impacted her safety, Bielska admitted that she never made a formal complaint or put anything in writing, but merely mentioned that the work gets "really tiring."
This evidence shows that during her employment Bielska never alerted Aspire that its work shift schedule posed a safety issue to herself or her patients. Moreover, "safety" is defined as "such freedom from danger to the life, safety, or health of employees as the nature of the business reasonably permits." (§ 6306, subd. (a), italics added.) Melinda Jewell, the regional director of human resources for Aspire's parent company, stated that Aspire provides patients access to live help "24 hours a day, seven days a week" and to accomplish this it rotates its nursing staff through on-call weekend shifts to assist patients. Thus, the nature of Aspire's business requires long hours. Despite this reality, Bielska admitted that when she worked on-call weekends she had "the freedom to schedule the times with the patients that would best suit them and me. And I would typically try to plan out a route that would make best use of driving time."
"To be protected by a public policy, an employee 'must convey the information in a form which would reasonably alert his or her employer of the nature of the problem and the need to take corrective action.' " (Ferrick, supra, 231 Cal.App.4th at pp. 1350-1351.) Because Bielska has not shown Aspire's knowledge that she engaged in protected activity, Bielska has not established a prima facie case of retaliation under section 6310 pertaining to work shifts. (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 388 ["A plaintiff can satisfy his or her initial burden under the test by producing evidence of nothing more than the employer's knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision."].) Accordingly, we need not proceed to the remaining prongs of the analysis, whether Aspire established a legitimate, nonretaliatory basis for Bielska's termination or whether Bielska raised a triable issue of fact on that issue.
2. Alleged complaint regarding patient's home
Bielska testified at deposition regarding the patient she saw where she became ill and had to leave her shift for the day. Bielska explained that the patient had dead animals in her home that animal control later removed. The patient also had a "very odorous" wound that required daily care. Bielska explained that the patient lived alone in a filthy home that smelled of rotting food. Bielska got a social worker involved and stated that the patient should have been placed in a skilled nursing facility, but that the patient refused. After the time that she became ill, Bielska recalled seeing this patient a couple more times until another person started to see the patient "pretty much the whole time." Bielska testified that Bates asked Gill to "write [her] up" after she complained to him about getting physically ill from being inside a patient's home. Bielska admitted however that she never mentioned that this patient posed a safety issue "because I didn't feel threatened physically or anything like that. But I physically did not want to get sick."
Bielska admitted that this one-time occurrence of getting physically ill based on the unsanitary living conditions of a patient did not pose a safety issue to her and that she never complained to Aspire that this patient posed a safety issue. This evidence is insufficient to create a triable issue that Bielska put Aspire on notice that she was making a workplace safety complaint under section 6310. Accordingly, Bielska cannot establish a prima facie case of retaliation under section 6310 pertaining to her exposure to this patient's home.
3. Alleged complaint regarding patient's neighborhood
Bielska testified that in a memo prepared for an attorney she noted a situation where she felt physically unsafe seeing a patient because the patient used heroin and lived in a bad neighborhood with trash around the building and individuals sitting on the stoop that stared at her and made her uncomfortable. Bielska testified that she never got out of her car. Rather, she called Aspire's scheduler to inform Aspire that she did not see the patient and was told that someone else would see that patient. When making this call, Bielska claimed that she stated that she felt uncomfortable and did not feel safe. Bielska also claimed that Mason harassed her about this incident.
Bielska's job required her to travel "throughout San Diego" to serve patients. Thus, the nature of her job entailed the inherent risk of traveling to unsavory neighborhoods. (§ 6306, subd. (a).) Additionally, to the extent Bielska's complaint about seeing this particular patient put Aspire on notice regarding a safety claim, Bielska has not shown that Aspire failed to properly address the situation. This one-time incident where Bielska became frightened for her safety is insufficient as a matter of law to put Aspire on notice that she was making a workplace safety complaint under section 6310. (See Muller, supra, 61 Cal.App.4th at p. 452.)
In summary, Bielska failed to show a triable issue of fact as to whether Aspire terminated her employment for complaining about unsafe working conditions in violation of section 6310. Thus, we affirm the portion of the judgment summarily adjudicating Bielska's fourth cause of action for retaliatory discharge in favor of Aspire.
II. WRONGFUL TERMINATION CAUSE OF ACTION
A. Additional Background
Bielska alleged a cause of action for wrongful termination in violation of public policy based on Aspire's alleged retaliation in violation of "Labor Code §1102.5 and for complaining about Aspire's violations of the Health and Safety Code, the Medicare regulations and Title 22 of the California Code of Regulations." Aspire's notice of motion sought summary adjudication of this cause of action, as follows:
"ISSUE THREE: Bielska's Wrongful Termination In Violation Of Public Policy Claim Fails To The Extent She Pleads It Is Tethered To Labor Code §1102.5 Because She Does Not Have A Surviving §1102.5 Claim.
"ISSUE FOUR: Bielska's Wrongful Termination In Violation Of Public Policy Claim Fails To The Extent She Claims It Is Tethered To Her Labor Code §6310 Claim Because She Has Not Proven Her §6310 Claim.
"ISSUE FIVE: Bielska's Wrongful Termination In Violation Of Public Policy Claim Fails To The Extent She Claims It Is Tethered To Her Labor Code §232.5 Claim Because Her §232.5 Claim Is Preempted By §7 Of The [National Labor Relations Act]."
In a one-paragraph argument, Bielska asserted that the court should deny summary adjudication of her wrongful termination cause of action because the three issues listed in Aspire's notice of motion did not dispose of the entire cause of action. Specifically, she argued that Aspire did not address the parts of the cause of action tethered to alleged violations of "Health & Safety Code §1727 et seq. or 22 [California Code of Regulations] §74600 et seq." In its reply, Aspire maintained that Bielska's Tameny cause of action lacked merit and that she offered no authority showing that the licensing provisions cited in the Health and Safety Code or the California Code of Regulations supported a Tameny cause of action.
The trial court subsequently granted summary adjudication of issues three, four and five. As the parties prepared for trial on the remaining claims, a dispute arose whether Bielska's wrongful termination cause of action remained to be tried. The court set the matter for hearing and continued the trial date. Aspire filed a motion for clarification, noting that Bielska's operative complaint cited two specific statutes or regulations related to " 'nursing violations' " (Health and Saf. Code, § 1727.5, subd. (c) & Cal. Code Regs., tit. 22, § 74069), that it addressed both laws in its motion for summary adjudication, included these laws in its request for judicial notice, and that the undisputed facts showed no violation of these laws. Aspire also noted that Bielska's complaint characterized her alleged "nursing violations" as "working conditions" under section 232.5 and that the trial court had found these claims were federally preempted.
Bielska opposed the motion for clarification and requested leave to amend her complaint to cure any pleading deficiencies. After considering the parties briefing and hearing oral argument, the trial court granted Aspire's motion stating, "Although the final ruling does not specifically state the sixth cause of action was summarily adjudicated, the Court may not summarily adjudicate issues unless such a ruling would dispose of an entire cause of action. Therefore, implicit in the Court's ruling was a dismissal of plaintiff's sixth cause of action." Thereafter, the court denied Bielska's request for leave to amend.
B. Analysis
1. Procedural issues
Bielska claims that her operative complaint properly alleged a Tameny cause of action tethered to sections 232.5, 1102.5 and 6310 (the alleged Labor Code violations), and to violations of the Medicare regulations, title 22 of the California Code of Regulations, and Health and Safety Code section 1727.5 (the alleged safety violations). She notes that the court's ruling stated that summary adjudication was granted to the extent her Tameny cause of action was tethered to the Labor Code violations. She contends that Aspire did not explicitly seek to adjudicate her Tameny cause of action to the extent it was tethered to the alleged safety violations. Accordingly, she asserts that the trial court erred in summarily adjudicating her Tameny cause of action because Aspire never met its initial burden to negate the safety violations tethered to her Tameny theory of liability, and therefore she never had an obligation to make her prima facie case.
Bielska's opening brief contains no discussion or argument regarding the trial court's granting of summary adjudication of issues three, four and five which addressed Bielska's Tameny cause of action as tethered to the alleged Labor Code violations. We deem any challenge to this portion of the court's order as abandoned. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 ["[A]n appellant's failure to discuss an issue in its opening brief forfeits the issue on appeal" even if the review is de novo.].)
Aspire disagrees, noting that it addressed the two safety violations alleged in Bielska's complaint in its motion and that Bielska never mentioned any other California Code of Regulation or Medicare regulation implicated by her complaints to Aspire until she submitted the declaration of Kathy Gibbs in opposition to the summary adjudication motion. Aspire argues that it was the party deprived of due process when Bielska improperly waited until opposing summary judgment to reveal, for the first time, the specific statutes supporting her Tameny cause of action.
Code of Civil Procedure section 437c, subdivision (f)(1), provides in relevant part that "[a] party may move for summary adjudication as to one or more causes of action within an action . . . if the party contends that the cause of action has no merit." "[A] cause of action for purposes of a summary adjudication motion 'means " 'a group of related paragraphs in the complaint reflecting a separate theory of liability.' " ' " (Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 257, italics omitted.) Accordingly, the summary judgment statute precludes the " 'piecemeal adjudication of facts that [do] not completely dispose of a substantive area.' [Citation.] . . . [E]ach cause of action, or substantive area, that is not summarily adjudicated is to stand on its own at trial." (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1137.)
The notice of motion must identify the causes of action or defenses to which the motion is directed, but it is not necessary to identify specific facts or issues within a claim or defense. (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478.) Here, Aspire's notice of motion was overly inclusive as it listed three separate issues for summary adjudication pertaining to Bielska's Tameny cause of action. Aspire's notice of motion would have been sufficient if, for example, it had sought summary adjudication of plaintiff's sixth cause of action for wrongful termination in violation of public policy on the ground it lacked merit.
The trial court correctly noted in ruling on Aspire's clarification motion that it could not summarily adjudicate "issues" unless its ruling disposed of an entire cause of action. (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975 ["there can be no summary adjudication of less than an entire cause of action"].) --------
Code of Civil Procedure section 1010 provides, in relevant part, that a notice of motion "must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based." Here, Aspire's notice of motion stated "that, as a matter of law, there is no triable issue of material fact as to any of Plaintiff's causes of action or the issues addressed in this Motion. The Motion is based on this Notice of Motion and the accompanying Memorandum of Points and Authorities, the Separate Statement of Undisputed Facts, the Request For Judicial Notice, Declarations of Traci Park and Melinda Jewell, all papers and pleadings on file in this matter, and any evidence and argument the Court may require or allow before the hearing on this matter." (Italics added.)
"Even though the notice of motion fails to state a particular ground for the motion, where the notice states, as here, that the motion is being made upon the notice of motion and accompanying papers and the record, and these papers and the record support that particular ground, the matter is properly before the court and the defect in the notice of motion should be disregarded." (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808; 366-386 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1200.) Additionally, the introduction section of Aspire's points and authorities stated that the motion addressed the fourth, fifth and sixth causes of action. The argument section also cited to the summary judgment statute, noting that summary adjudication is appropriate if it disposes of an entire cause of action.
Accordingly, Aspire's notice of motion and other documents submitted with its summary adjudication motion properly put Bielska on notice that Aspire sought summary adjudication of the entire sixth cause of action. Thus, despite Bielska's attempt to do so, there can be no claim of surprise when the trial court proceeded to consider whether summary adjudication of the entire sixth cause of action should be granted. Further, as we shall address below, Aspire's motion and request for judicial notice addressed the merits of Bielska's Tameny cause of action to the extent Bielska tethered this cause of action to alleged safety violations.
2. Merits
An employer may not discharge an employee for a reason that contravenes a fundamental public policy. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 71.) To establish a prima facie case of wrongful termination in violation of public policy, the plaintiff must identify a policy that is: "(1) delineated in either constitutional or statutory provisions; (2) 'public' in the sense that it 'inures to the benefit of the public' rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental." (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894.) Vague charges "largely unaccompanied by citations to specific statutory or constitutional provisions, puts [defendants] and the court in the position of having to guess at the nature of the public policies involved, if any." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1257.)
Turning to Bielska's operative complaint, in her "[g]eneral [a]llegations" section she alleged that Aspire terminated her for complaining about Aspire's failure to comply with Health and Safety Code section 1727.5. She also alleged that she complained to Aspire about its failure "to comply with 22 [California Code of Regulations section] 74609 and Health & Safety Code §1727.5[, subdivision] (c), which require home health agencies to staff a Nurse Supervisor and meet all federal and state requirements" and for "not conducting Medicare-required case conferences." In her wrongful termination cause of action she alleged that Aspire terminated her for complaining about Aspire's violations of "the Health and Safety Code, the Medicare regulations and Title 22 of the California Code of Regulations." We address each allegation.
a. Medicare Regulations
We first address Bielska's allegation that Aspire terminated her for complaining about its alleged violation of Medicare regulations, particularly an undesignated Medicare regulation pertaining to case conferences. Aspire addressed this vague allegation in its moving points and authorities, specifically noting Bielska's deposition testimony that she never phrased the failure to conduct in person cases conferences purportedly required by Medicare regulations as a safety issue. In opposing Aspire's motion on the ground it did not dispose of the entire cause of action, Bielska noted that Aspire's motion did not address "alleged violations of Health & Safety Code §1727 et seq. or 22 [California Code of Regulations section] 74600 et seq." Bielska did not refer to alleged violations of Medicare regulations as a basis for denying the motion; thus, she appears to have abandoned this claim. Although the declaration of Kathy Gibbs filed in opposition to the motion referred to Medicare regulations pertaining to case conferences, the particular Medicare regulation at issue is again not specified.
In her opening brief on appeal Bielska failed to identify a particular Medicare regulation addressing patient safety, nor did she argue that the triable issue of fact existed on her Tameny cause of action to the extent she tethered it to alleged violations of Medicare regulations. Finally, in her proposed fourth amended complaint, Bielska failed to identify a particular Medicare regulation addressing patient safety. Accordingly, to the extent Bielska based her wrongful termination cause of action on a violation of Medicare regulations, her cause of action fails as she has neither alleged nor proffered evidence that Aspire terminated her for complaining about the violation of an unspecified Medicare regulation.
b. California Code of Regulations
We next address Bielska's allegation that Aspire terminated her for complaining about its alleged violation of California Code of Regulations, title 22, section 74609. Bielska's Tameny cause of action alleged a violation of "Title 22 of the California Code of Regulations." Her general allegations specified that she complained to Aspire regarding patient care, including Aspire's failure to comply with "[title] 22 [California Code of Regulations section] 74609" which required it to staff a nurse supervisor.
Division 5 of California Code of Regulations, title 22, pertains to the licensing and certification of home health agencies. Section 74609 of the California Code of Regulations, title 22, is contained in division 5. This regulation provides:
" 'Branch office' means a home health agency established and administered by a parent home health agency, providing services within a portion of the total service area served by the parent agency. Patients are accepted for service by the branch office at a separate location from the parent agency. The branch office is not required to be staffed with an administrator and a Director of Patient Care Services but must have a Nurse Supervisor available on the premises or immediately accessible by telecommunications during operating hours when patients are receiving services. The parent agency shall develop and implement a written plan for administration and supervision of a branch office. The administration at the parent agency shall be responsible for the staffing, patient census, and any issues affecting the operation of a given branch." (Italics added.)
Aspire requested that the court take judicial notice of this regulation and addressed Bielska's allegation in its moving points and authorities. Aspire first noted that Bielska admitted during her deposition that she did not "complain" about a vacant Clinical Director/Nurse Supervisor position in San Diego, but raised questions about when the position would be filled. She also admitted that she never described this vacant position as a safety issue, but rather, as a "convenience" issue for staff. In her opening brief Bielska does not address California Code of Regulations, title 22, section 74609. Rather, for the first time, she raises three other regulations (Cal. Code Regs., tit. 22, §§ 74705, 74683, 74742), regulations not mentioned in her operative complaint. Although Bielska does mention California Code of Regulations, title 22, section 74705 in her proposed fourth amended complaint, she does not allege a violation of this regulation. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885 [in which the court stated that without a request to amend, in summary judgment proceedings " ' "there is no occasion to inquire about possible issues not raised by the pleadings" ' "], revd. on other grounds (1981) 453 U.S. 490.)
Accordingly, to the extent Bielska based her wrongful termination cause of action on a violation California Code of Regulations, title 22, section 74609, her cause of action fails as she has not proffered evidence creating a triable issue that Aspire terminated her for complaining about the violation of this regulation. Moreover, her own deposition testimony shows that she did not complain to Aspire about a violation of this regulation.
c. Health and Safety Code section 1727.5
Bielska alleged that Aspire terminated her employment for complaining about its alleged violation of Health and Safety Code section 1727.5, subdivision (c). This statute requires a home health agency to "[p]rovide for the supervision of licensed and unlicensed personnel by a registered nurse or physical, speech, or occupational therapist when within the therapist's scope of practice." (Health & Saf. Code, § 1727.5, subd. (c).) Thus, this statute requires that a home health agency staff a nurse supervisor.
Aspire's moving points and authorities and separate statement of facts cited to evidence showing no violation of this statute. Specifically, Gill was the nurse supervisor in San Diego. Bielska testified that she had a good relationship with Gill and that Gill "always had an open door. She answered my questions." When Gill separated from Aspire on January 27, 2012, Mason, the clinical director/nursing supervisor in Las Vegas, temporarily filled the position and became Bielska's supervisor until a permanent replacement for Gill could be hired. Mason regularly traveled to San Diego and was always available by phone and e-mail, at any time of day or night. On February 6, 2012, Margo McNeill permanently replaced Gill as the director of patient care in San Diego.
This evidence shows that Aspire staffed a nurse supervisor as required by subdivision (c) of Health and Safety Code section 1727.5. Moreover, Bielska never complained about the vacant clinical director/nurse supervisor position in San Diego, but raised questions about when the position would be filled. She also admitted that she never described this vacant position as a safety issue, but rather as a "convenience" issue for staff. Bielska presented no evidence creating a triable issue that Aspire terminated her for complaining about the lack of a nurse supervisor in San Diego. Accordingly, to the extent Bielska based her wrongful termination claim on a violation of Health and Safety Code section 1727.5, the court properly granted summary adjudication.
III. DENIAL OF LEAVE TO AMEND
Bielska argues that if her operative complaint did not adequately allege all essential facts to state a common law tort cause of action for wrongful termination in violation of public policy, then the trial court should have allowed her leave to amend to cure the pleading deficiencies. She claims that the present matter is procedurally similar to Prue v. Brady Co./San Diego Inc. (2015) 242 Cal.App.4th 1367 (Prue). We disagree.
We review the trial court's decision denying leave to amend for an abuse of discretion. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.) Unreasonable delay in seeking leave to amend is reason by itself for denial thereof. (Record v. Reason (1999) 73 Cal.App.4th 472, 486-487.)
Here, when Bielska filed her request seeking leave to file a fourth amended complaint the matter had been pending for three and one-half years. Aspire had already deposed Bielska three times, once in 2014 and twice in 2015. Additionally, Bielska waited over eight months after the trial court issued its summary adjudication ruling to seek leave to amend. This case is unlike Prue where the matter had only been at issue for about eight months when the motion for summary judgment was filed. (Prue, supra, 242 Cal.App.4th at pp. 1371-1372.) The plaintiff in Prue also timely sought leave to amend his complaint by lodging a proposed first amended complaint with his opposition to the summary judgment motion. (Id. at p. 1374.) On the facts before us, we conclude that the trial court did not err by denying leave to amend.
DISPOSITION
The judgment is affirmed. Respondent is entitled to its costs on appeal.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.