California Labor Law Compliance:
Below you will find many of the most common credible sources on the issue of termination. The contents on this site is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship. Please contact us for a labor attorney or immediately contact your own for legal advice.
CANALES v. WELLS FARGO BANK
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FIVE
Decided: May 30, 2018
FABIO CANALES et al.,
WELLS FARGO BANK,N.A.,
Defendant and Respondent
(Los Angeles County Super.
Law Offices of Sherry Jung and Larry W. Lee, Los Angeles; Hyun Legal, Dennis S. Hyun, Los Angeles for Plaintiffs and Appellants. Kading Briggs, Glenn L. Briggs, Theresa A. Kading, Irvine and Nisha Verma, for Defendant and Respondent.
Noel v. River Hills Wilsons, Inc.
CA Court of Appeal, Fourth District, Division One.
CERTIFIED FOR PUBLICATION:
Brandon J. NOEL,
Plaintiff and Appellant,
RIVER HILLS WILSONS, INC., et al.,
Defendants and Respondents.
7 Cal.Rptr.3d 216 (2003)
113 Cal.App.4th 1363
December 5, 2003.
*218 Law Office of David A. Miller and David A. Miller, San Diego, for Plaintiff and Appellant.
Turner v. Anheuser-Busch, Inc.
Surpeme Court of California
CERTIFIED FOR PUBLICATION:
|JAMES M. TURNER, |
Plaintiff and Appellant,
Defendant and Respondent.
[No. S029985. Jul 25, 1994.]
(Superior Court of Riverside County,
No. CSC 198551, Victor Miceli, Judge.)
Start of three years long Limit
Mullins v. Rockwell Internat. Corp.
Surpeme Court of California
|Cornelius MULLINS, |
Plaintiff and Appellant,
ROCKWELL INTERNATIONAL CORPORATION,
Defendant and Respondent.
15 Cal.4th 731 (Cal. 1997)
63 Cal. Rptr. 2d 636
936 P.2d 1246
MOSK, KENNARD, BAXTER, WERDEGAR, CHIN and BROWN, JJ., concur.
3 Years Reporting Limit
MINOR v. FEDEX OFFICE & PRINT SERVICES, INC.
US District Court Northern District of California
CERTIFIED FOR PUBLICATION:
|Gary MINOR, |
FEDEX OFFICE & PRINT SERVICES, INC., et al.,
182 F.Supp.3d 966 (2016)
United States District Court,
N.D. California, San Jose Division.
Signed April 25, 2016.
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS - Re: Dkt. Nos. 31, 33, 38
LUCY H. KOH, United States District Judge.
Plaintiff Gary Minor ("Plaintiff") filed this action pro se against Defendants FedEx Office and Print Services, Inc. ("FedEx Office"), Lance Freitas ("Freitas"), Federal Express Corporation ("Express"), and Gallagher Bassett Services, Inc. ("Gallagher") (collectively, "Defendants"). Before the Court are Defendants' three motions to dismiss. ECF Nos. 31 ("Gallagher Mot."); 33 (FedEx Office and Freitas Motion, or "Office Mot."); 38 ("Express Mot."). Having considered the parties' submissions, the record in this case, and the applicable law, the Court GRANTS Defendants' motions to dismiss.
A. Plaintiff's Employment and Termination
Plaintiff began working as a store manager for FedEx Office in September 2006. ECF Nos. 6, 6-1 (collectively "Compl.") 11. As a store manager, Plaintiff supervised other employees and performed other duties required to manage a store. Id. Around October 1, 2006, Plaintiff discovered that another store manager was altering employee timecards, so Plaintiff filed a complaint with management. Id. 13. Soon after, on October 19, 2006, Plaintiff was demoted to assistant manager. Id. 14. In January 2007, Plaintiff was transferred to a different location, and no longer held any duties as assistant manager. Id. 15.
In February 2007, a store manager denied Plaintiff's request for medical leave to have surgery on Plaintiff's right hip. Id. 16. However, Plaintiff's condition worsened and in October 2007 Plaintiff began an approved Family Medical Leave Act ("FMLA") leave of absence to have a right hip replacement. Id. 17. Plaintiff underwent surgery in January 2008 — a three-month delay allegedly attributable to FedEx Office. Id. 17-18.
Plaintiff returned to work in April 2008 after learning that his position was in peril and his medical insurance had been cancelled, which prevented him from going to out-patient physical therapy. Id.20-21. On May 29, 2008, Plaintiff filed a complaint with the California Department of Fair Employment and Housing ("DFEH") for being denied reasonable accommodations related to Plaintiff's hip surgery. Id. 35; FAC E-29 to -32 (Plaintiff's letter to the presiding judge in another federal court case discussing DFEH complaint). The DFEH denied Plaintiff's claim on June 18, 2008. Compl. 37.
Meanwhile, on May 24, 2008, Plaintiff tripped over a rubber floor mat at work and tore the meniscus in his left knee. Id.22, 24. Together, Plaintiff's right hip replacement and torn meniscus limited Plaintiff's ability to work and rendered him disabled. Id.24, 49. On June 18, 2008, Defendant Gallagher, FedEx Office's third party workers' compensation administrator, denied Plaintiff's claim for surgery on Plaintiff's knee. Id. 36.
In July 2008, after additional visits to the doctor and another MRI, Plaintiff was placed on disability leave by his treating physician. Id.36, 39. Plaintiff underwent knee surgery in November 2008 and returned to work in January 2009 despite not feeling ready to return. Id.40-41. After Plaintiff's return to work, Defendant Freitas and Randy Leighton ("Leighton"), store managers with FedEx Office, "knowingly made schedules where Plaintiff was left alone" in the store to complete shipments. Id. 59. This required Plaintiff to lift heavy boxes despite his knee injury. Id.60, 62-63. According to Plaintiff, Freitas's and Leighton's actions "violated FedExCorporate Team Member policies and rules for employees." Id. 58.
From January to December of 2009, Plaintiff sent over fifty emails to Gallagher and FedEx Office complaining of extreme pain and requesting further treatment, which were ignored. Id. 41. On December 17, 2009, Plaintiff used his own medical insurance for an MRI. Id. 69. The physician discovered permanent damage to Plaintiff's left knee and recommended a full knee replacement. Id. On April 13, 2010, Plaintiff filed retaliation and harassment complaints requesting another knee surgery with the DFEH, the U.S. Equal Employment Opportunity Commission ("EEOC"), and the Department of Industrial Relations ("DIR"). Id.70, 83. It is not clear against whom these complaints were filed. Although Gallagher approved Plaintiff's claim and Plaintiff's selection of a treating surgeon on April 29, 2010, Plaintiff apparently used Plaintiff's own medical insurance for the surgery on September 13, 2010. Id.71, 84.
Shortly after, in November 2010, Plaintiff wrote a letter to the California Attorney General complaining of discrimination and retaliation related to Plaintiffs' reporting of employee timecard editing and Plaintiff's knee injury. FAC E-62 to E-65. The California Attorney General directed Plaintiff to file his complaint with different agencies, including the DFEH. Id. E-60 to -61.
On February 25, 2011, FedEx Office terminated Plaintiff. Compl. 52. Following Plaintiff's termination, in 2011 and 2012, Plaintiff filed six complaints related to "retaliation, discrimination and harassment for filing a worker's [compensation claim] for a work related injury against sister company Federal Express Corporation" with the Workers' Compensation Appeals Board. Id.74-75. The outcome of these complaints is unclear. Also in 2012, Plaintiff wrote a second letter to the California Attorney General complaining of discrimination and retaliation, FAC E-68 to -69, to which the California Attorney General again responded by referring Plaintiff to other state agencies, id. E-66 to -67. In 2013, Plaintiff wrote a third letter to the California Attorney General alleging that FedEx Office unlawfully underpays taxes and edits employee timecards. Id. E-91 to -96. For the third time, the California Attorney General directed Plaintiff to other state agencies. Id. E-87 to -89. In 2015, Plaintiff apparently contacted the DIR regarding tax and workers' compensation fraud by FedEx Office, which Plaintiff discovered through the altered employee timecards. Id. E-110 to -117 (emails sent to DIR). In 2016, Plaintiff contacted the Santa Clara County District Attorney, the California Attorney General, the California Department of Insurance, and the DIR to report workers' compensation and tax fraud by FedEx Office, Express, and Gallagher. Id. E-120 to -123, E-128 to -129.
In addition to the administrative complaints and the instant lawsuit, Plaintiff has filed two federal court cases regarding his employment with FedEx Office as discussed below.
B. 2009 Class Action Suit and Settlement Agreement
In 2009, Plaintiff was a Class Representative in a wage-and-hour class action against FedEx Office before Judge Thelton E. Henderson of this Court (the "2009 Class Action"). See ECF No. 34-7 (Second Amended Class Action Complaint); Minor et al. v. FedEx Office & Print Servs. Inc., Case No. 09-1375 (N.D.Cal.). In that case, the Class claimed that FedEx Office failed to pay overtime wages, provide meal periods, pay a minimum wage, keep accurate records, and indemnify employees' expenses, among other allegations. See ECF No. 34-7. Although Express was originally a defendant in the case, Plaintiff voluntarily dismissed Express without prejudice after Plaintiff signed a stipulation in which Plaintiff admitted that FedEx Office — not Express — was Plaintiff's employer. See ECF No. 39-2 (Joint Stipulation).
The parties settled the 2009 Class Action in November 2012. See ECF No. 53 ("Settlement Agreement"). Judge Henderson preliminarily approved the settlement agreement in February 2013, ECF No. 34-10, and gave final approval in July 2013, FAC E-1 to -6. As part of the settlement, Plaintiff, as a Class Representative, received $5,000 in exchange for a limited release of claims against FedEx Office. See FAC E-1 to -6. The limited release provision released all of Plaintiff's claims except for five already-filed DFEH complaints. See Settlement Agreement § 2.13.
In 2014, Plaintiff filed a complaint against Class Counsel with the California State Bar. See FAC E-43 to 44. The State Bar closed Plaintiff's complaint after finding there was not sufficient grounds to find that Class Counsel violated the law or the Rules of Professional Conduct. Id. E-52 to -57.
C. 2013 Federal Lawsuit: Minor I
On February 8, 2013, the same day the class action settlement agreement was preliminarily approved by Judge Henderson, Plaintiff filed a lawsuit in Santa Clara County Superior Court against Express and several Doe defendants. See ECF No. 34-12; ECF No. 39-4. In February 2014, Plaintiff substituted FedEx Office and FedEx Corporation for two Does as Defendants. ECF No. 34-15. Then, on March 6, 2014, Plaintiff voluntarily dismissed Express without prejudice. ECF No. 34-16. On March 10, 2014, FedEx Office removed the case to federal court. See ECF No. 39-7; Minor v. FedEx Office and Print Services, Inc., Case No. 14-CV-01117-LHK (N.D.Cal.) ("Minor I").
Minor I arose from Plaintiff's February 2011 termination and related events, including FedEx Office's responses to Plaintiff's reporting of employee timecard violations and Plaintiff's hip and knee injuries. Plaintiff asserted claims for (1) discrimination on the basis of disability in violation of California's Fair Employment and Housing Act ("FEHA") § 12946; (2) failure to make reasonable accommodations in violation of FEHA § 12940(m); (3) failure to protect from discrimination in violation of FEHA § 12940(k); (4) retaliation in violation of FEHA § 12940(h); (5) failure to grant leave under the California Family Rights Act, FEHA § 12945.2; and (6) wrongful termination in violation of public policy. ECF No. 39-8 ("Minor I Compl.").
1. August 11, 2014 Order Granting Judgment on the Pleadings With Leave to Amend
On August 11, 2014, this Court granted FedEx Office's motion for judgment on the pleadings with leave to amend. ECF No. 34-17. First, the Court found that Plaintiff failed to allege that he filed an administrative complaint after Plaintiff was terminated even though Plaintiff's FEHA claims all stemmed from his February 2011 termination. Accordingly, the Court determined that Plaintiff failed to allege exhaustion of administrative remedies as required by FEHA § 12960 and dismissed Plaintiff's five FEHA claims with leave to amend. Id. at 7-9.
Second, the Court concluded that the Settlement Agreement prohibited tort claims against FedEx Office and therefore facially barred Plaintiff's wrongful termination claim. Id. at 9-10. However, the Court granted Plaintiff leave to amend to allege the existence of evidence that FedEx Office obtained Plaintiff's consent to the Settlement Agreement by fraud, deception, and/or misrepresentation. Id. at 11.
Additionally, the Court ordered Plaintiff to clarify what role FedEx Corporation had in the allegedly wrongful conduct, as Plaintiff's complaint alleged that Plaintiff was employed solely by FedEx Office, not FedEx Corporation. Id. at 4 n.1. The Court warned Plaintiff that failure to cure all of these deficiencies would result in dismissal of Plaintiff's claims with prejudice. Id. at 12. The Court also ordered Plaintiff not to add new causes of action or parties without leave of the Court or stipulation of the parties. Id.
2. September 11, 2014 Order Granting Motion to Dismiss With Prejudice
On September 11, 2014, Plaintiff filed a third amended complaint reasserting Plaintiff's claims against FedEx Office and FedEx Corporation and adding Express back into the lawsuit as a defendant. Minor I Compl. On January 16, 2015, the Court granted FedEx Office's motion to dismiss with prejudice. ECF No. 34-19 ("Minor I Order"). The Court noted that the three FedEx companies — FedEx Corporation, FedEx Office, and Express — are distinct entities with FedEx Office and Express structured as wholly-owned subsidiaries of FedEx Corporation. Id. at 8. The Court dismissed FedEx Corporation with prejudice because Plaintiff's third amended complaint still failed to address what role, if any, FedEx Corporation played in the conduct at issue. Id. at 9.
The Court also dismissed Plaintiff's claims against Express with prejudice because Plaintiff's claims could only be brought against Plaintiff's employer and Plaintiff had signed a stipulation in the 2009 Class Action that stated FedEx Office — not Express — was Plaintiff's employer. Id. at 10. Further, as noted above, Plaintiff had voluntarily dismissed Express while the case was pending in Santa Clara County Superior Court. ECF No. 34-16. Moreover, Plaintiff added Express to the third amended complaint without a stipulation or leave of the Court in violation of the Court's order granting judgment on the pleadings with leave to amend. Minor I Order at 10.
Finally, the Court dismissed Plaintiff's six claims against FedEx Office with prejudice. As to Plaintiff's five FEHA causes of action, the Court held that Plaintiff again failed to allege that Plaintiff exhausted his administrative remedies even after the Court granted Plaintiff leave to amend to cure that deficiency. Id. at 15. For the same reason, the Court also noted that the five FEHA causes of action against Express would be legally precluded even if Express met the definition of employer. Id. at 10.
As to Plaintiff's wrongful termination claim, the Court held that Plaintiff failed to allege facts to show that FedEx Office obtained Plaintiff's consent to the release provision by fraud, deception, or misrepresentation. Id. at 17. Thus, Plaintiff's wrongful termination claim was facially barred by the class action Settlement Agreement. Id. Accordingly, the Court dismissed Plaintiff's third amended complaint with prejudice.
D. The Instant Lawsuit
On December 29, 2015, Plaintiff filed a new lawsuit in Santa Clara County Superior Court against Defendants. ECF Nos. 6, 6-1. As in Minor I, Plaintiff asserted five causes of action for violations of FEHA §§ 12946, 12940(h), (k), (m), 12945.2, and one cause of action for wrongful termination in violation of public policy. Id. In addition, Plaintiff added claims under "the EEOC," the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 et seq., and California Labor Code § 1102.5. Id. On February 1, 2016, FedEx Office removed the case to federal court. ECF No. 1. On February 8, 2016, FedEx Office, Freitas, and Express filed two motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 13 (Motion of Express); 15 (Motion of FedEx Office and Freitas). In response to these motions to dismiss, Plaintiff filed a First Amended Complaint ("FAC") on March 1, 2016. ECF No. 27. The FAC notes that Plaintiff "would like to amend the original complaint by submitting federal court documents as supporting argument where the defendant stated that this complaint filed is the same complaint filed in the Northern District Court of California with Judge Lucy H. Koh — not true." Id. at 1. While the caption of the FAC includes four claims — disability discrimination in violation of "FEHA/EEOC," wrongful termination, violation of California Labor Code § 1102.5, and retaliation — the FAC does not describe Plaintiff's claims or include factual allegations. Instead, the FAC consists of 11 exhibits, including orders and filings from Plaintiff's prior lawsuits and communications between Plaintiff and various California administrative agencies. Because Defendants have each expressed confusion over the contents and operability of the FAC, the Court addresses the FAC in more detail in section IV.A of this order.
On March 9, 2016, Plaintiff submitted a motion "requesting approval for missed deadline to file rely [sic]." ECF No. 30. After Plaintiff filed the motion to extend time, but before the Court ruled, Defendants filed three new motions to dismiss the FAC and/or the original complaint. See Gallagher Mot. (filed March 11, 2016); Office Mot. (filed March 14, 2016); Express Mot. (filed March 16, 2016). FedEx Office, Freitas, and Express also filed requests for judicial notice. ECF No. 34; ECF No. 39. On March 18, 2016, the Court interpreted Plaintiff's motion to extend time as a request to excuse the untimeliness of the FAC, but denied the motion as moot because Plaintiff's FAC was timely. ECF No. 41. The Court also denied as moot the two February 8, 2016 motions to dismiss the original complaint filed by FedEx Office, Freitas, and Express. Id.
In March 2016, Plaintiff opposed the three new motions to dismiss. ECF No. 45 (Opposition to Gallagher Mot., filed March 25, 2016); ECF No. 47 (Opposition to Office Mot., filed March 28, 2016); ECF No. 50 (Opposition to Express Mot., filed March 30, 2016). Gallagher filed a reply on March 31, 2016. ECF No. 48. FedEx Office and Freitas filed a reply on April 4, 2016. ECF No. 54. FedEx Office and Freitas also filed a notice of errata correcting an exhibit in their March 14, 2016 request for judicial notice. ECF No. 53. Express filed a reply on April 6, 2016. ECF No. 56. On April 18, 2016, Plaintiff filed a request for the Court to consider the oppositions filed in response to the instant motions to dismiss. ECF No. 69.
II. LEGAL STANDARD
A. Rule 12(b)(6)
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). Rule 8(a) requires a plaintiff to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted).
For purposes of ruling on a Rule 12(b)(6) motion, the Court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). The Court, however, need not accept as true allegations contradicted by judicially noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000), and it "may look beyond the plaintiff's complaint to matters of public record" without converting the Rule 12(b)(6) motion into a motion for summary judgment. Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir. 1995). Nor must the Court "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.2011) (per curiam). Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004).
B. Leave to Amend
If the Court concludes that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "shall be freely given when justice so requires," bearing in mind "the underlying purpose of Rule 15... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc) (ellipsis in original). Nonetheless, a district court may deny leave to amend a complaint due to "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." See Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir.2008).
III. JUDICIAL NOTICE
On a Rule 12(b)(6) motion, the Court generally may not look beyond the four corners of the complaint, with the exception of documents incorporated into the complaint by reference and any relevant matters subject to judicial notice. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir.2002). The Court may take judicial notice of matters that are either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Proper subjects of judicial notice include court documents in the public record and documents filed in other courts, see Holder v. Holder, 305 F.3d 854, 866 (9th Cir.2002); records of administrative agencies, see United States v. 14.02 Acres of Land More or Less in Fresno Cty., 547 F.3d 943, 955 (9th Cir.2008); and publically accessible websites, see Caldwell v. Caldwell, 2006 WL 618511, at *4 (N.D.Cal. Mar. 13, 2006).
In connection with the instant motion to dismiss, FedEx Office and Freitas request judicial notice of twenty-one documents, including (1) documents filed by the parties in the 2009 Class Action and Minor I; (2) court orders issued in the 2009 Class Action and Minor I; (3) complaints Plaintiff filed with various administrative agencies; and (4) case information from publicly available websites. ECF No. 34. On April 4, 2016, FedEx Office and Freitas filed a notice of errata and a complete version of Exhibit 8, the 2009 Class Action Settlement Agreement, because FedEx Office and Freitas had inadvertently omitted certain pages of the Settlement Agreement in their original request for judicial notice. ECF No. 53. Plaintiff does not oppose judicial notice of any documents and these documents are all appropriate subjects of judicial notice. See Holder, 305 F.3d at 866 (court documents); 14.02 Acres of Land More or Less in Fresno Cty., 547 F.3d at 955 (agency records); Caldwell, 2006 WL 618511, at *4 (publicly available websites). Accordingly, the Court GRANTS FedEx Office's and Freitas's unopposed request for judicial notice.
Similarly, Express requests judicial notice of ten documents, including (1) documents filed by the parties in the 2009 Class Action and Minor I; (2) court orders issued in the 2009 Class Action and Minor I; and (3) case information from publicly available websites. ECF No. 39. These ten documents are nearly identical in form and in kind to the documents provided by FedEx Office and Freitas, and Plaintiff does not oppose judicial notice. For the reasons outlined above, the Court GRANTS Express's unopposed request for judicial notice.
A. Plaintiff's Claims
As stated above, the FAC does not describe Plaintiff's claims or include any factual allegations. Instead, the FAC consists of 11 exhibits, including orders and filings from Plaintiff's prior lawsuits and communications between Plaintiff and various California administrative agencies. Thus, as a preliminary matter, the Court will construe Plaintiff's claims as alleged in Plaintiff's pleadings. The Court acknowledges that Plaintiff's pleadings are not a model of clarity and that Defendants are confused by these filings. See, e.g., Express Mot. at 5-6 ("[I]t is difficult for [ ] Express to determine precisely what causes of action are asserted or how those causes of action differ from those asserted in Plaintiff's initial [ ] [c]omplaint."); Gallagher Mot. at 2-3 (noting confusion); Office Mot. at 3, 8-9 (same). From Defendants' statements and the Court's review of the record, the Court identifies four issues in need of clarification: (1) Plaintiff's original and amended complaints assert claims under the "EEOC" without identifying a relevant statute; (2) the FAC contains no factual allegations or claims; (3) the caption of the complaint, the body of the complaint, and the caption of the FAC are inconsistent; and (4) Plaintiff's oppositions attempt to raise a seemingly new claim and new allegations. When addressing these issues, the Court is mindful that "courts must construe pro se pleadings liberally." See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000).
First, in response to Plaintiff's claims brought under "the EEOC," the Court notes that the EEOC is not a federal law. Rather, the EEOC is a federal agency "responsible for enforcing federal laws that make it illegal to discriminate against... an employee because of the person's...disability." Overview, U.S. Equal Employment Opportunity Commission, http://www.eeoc.gov/eeoc/(last visited Apr. 25, 2016). Thus, Plaintiff cannot assert claims under "the EEOC." However, the ADA is among the federal laws under the EEOC's purview. Plaintiff cites the ADA with regard to some of the claims in the complaint and all of Plaintiff's "EEOC" claims sound in discrimination. Construing Plaintiff's pleadings liberally, it appears to the Court that when Plaintiff references the EEOC, Plaintiff intends to state a claim under the ADA. See Compl.55-94 (second, third, fourth, and fifth causes of action).
Second, Defendants disagree as to whether the FAC incorporates Plaintiff's original complaint. Gallagher, for example, references the allegations that Plaintiff asserts in the original complaint and notes that the FAC "does not amend these basic factual allegations." Gallagher Mot. at 2 n.1. On the other hand, Express's motion focuses on the four claims in the caption of the FAC and notes that the FAC "does not include any factual allegations supporting [Plaintiff's] claims." Express Mot. at 6. In turn, FedEx Office and Freitas argue that the FAC "supersedes [Plaintiff's] original [c]omplaint" and does not allege any claims. Office Mot. at 11. In the alternative, however, FedEx Office and Freitas move to dismiss both the FAC and the original complaint in anticipation of the Court finding that the FAC supplements and does not supersede the original complaint. Id. at 4 n. 5, 9, 11.
As FedEx Office and Freitas point out, as a general rule "an amended pleading supersedes the original pleading and renders it of no legal effect, unless the amended complaint incorporates by reference portions of the prior pleading." Williams v. Cty. of Alameda, 26 F.Supp.3d 925, 936 (N.D.Cal.2014). However, as all Defendants point out, the FAC includes no factual allegations or claims and thus is not really in the form of a pleading. Nevertheless, the FAC is clearly labeled an amended complaint; states that Plaintiff "would like to amend the original complaint by submitting federal court documents as supporting argument"; includes a caption with claims listed; and states "all complaint damages from original complaint filed remain the same." FAC at 1. It is therefore apparent to the Court that Plaintiff intended the FAC as a supplement to the original complaint. In light of the liberal standard applied to pro se plaintiffs, see Resnick, 213 F.3d at 447, the Court construes the FAC filed on March 1, 2016 as incorporating the original complaint. Therefore, the Court addresses the allegations and claims in the original complaint as well as the FAC.
Third, the claims listed in the captions of the original complaint and the FAC are not entirely consistent with those described in the body of the original complaint. For example, the caption in the original complaint does not list whistleblower retaliation in violation of California Labor Code § 1102.5 as a cause of action, but Plaintiff extensively discusses this claim in the body of the complaint and lists this claim in the caption of the FAC. In order to give this pro se complainant the "benefit of any doubt," see Cooper v. Pasadena Unified Sch. Dist., 52 Fed.Appx. 362, 363 (9th Cir.2002), the Court construes the complaint as including a claim under California Labor Code § 1102.5.
Having carefully reviewed the original complaint and FAC, the Court identifies seven causes of action. Of these seven causes of action, Plaintiff asserts five solely against FedEx Office and Express: (1) discrimination on the basis of disability in violation of FEHA § 12946 and the ADA, Compl.48-51; (2) failure to take reasonable steps to prevent discrimination in violation of FEHA § 12940(k) and the ADA, id.55-56; (3) retaliation in violation of FEHA § 12940(h) and the ADA, id.72-87; (4) failure to grant leave in violation of FEHA § 12945.2 and the ADA, id.88-94; and (5) wrongful termination in violation of public policy pursuant to Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980), id.113-119, 120-122. The remaining two causes of action — failure to make reasonable accommodations in violation of FEHA § 12940(m) and the ADA, id.52-54, 57-71, and whistleblower retaliation in violation of California Labor Code § 1102.5, id.95-112, 120-122 — do not specify against which of the four Defendants the claims are asserted. Accordingly, the Court construe Plaintiff's failure to accommodate and whistleblower retaliation claims as being stated against all Defendants.
Finally, in opposition to the instant motions to dismiss Plaintiff does not refute Defendants' motions and instead attempts to offer new allegations and raise at least one new claim related to Defendants' allegedly fraudulent business practices. Specifically, Plaintiff appears to assert a workers' compensation insurance fraud claim under California Insurance Code § 1871.4. ECF No. 45 at 7; ECF No. 47 at 9; ECF No. 50 at 9. Plaintiff contends that "Plaintiff fears of being charged with worker's compensation insurance fraud even though it was committed by FedEx Office, GBS and Federal Express. Plaintiff has the right to clear his good name no matter how long it takes." See, e.g., ECF No. 47 at 10. For the following reasons, the Court disregards these new assertions related to workers' compensation fraud.
Most importantly, Plaintiff's pleadings do not include a claim for workers' compensation insurance fraud nor any factual allegations to support such a claim. See generally Compl.; FAC. Although the FAC includes letters that Plaintiff sent to various California agencies discussing workers' compensation insurance fraud, these letters never cite California Insurance Code § 1871.4. Additionally, these letters — attached to the FAC with no context or supporting factual allegations — are not "sufficient to put [Defendants] on notice that [Plaintiff] was making claims" of workers' compensation insurance fraud in the instant lawsuit. See Cooper, 52 Fed. Appx. at 363. The Court further notes that the record does not indicate that Plaintiff has ever been charged, or is at risk of being charged, with workers' compensation insurance fraud in connection with his employment with FedEx Office.
Additionally, Plaintiff may not use his opposition to raise and argue new allegations or claims not in the complaint. See Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir.1998) ("In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss."); Clark v. Beard, 2015 WL 4452470, at *4 n. 7 (N.D.Cal. July 20, 2015) ("Plaintiff cannot raise new claims that were not previously raised in his amended complaint."). Thus, in deciding the instant motion the Court may not consider Plaintiff's newly raised workers' compensation insurance fraud claim or related allegations.
Moreover, although the Court will not determine the merits of Plaintiff's fraud allegations, the Court notes that California Insurance Code § 1871.4 is a penal statute. See Leegin Creative Leather Prods., Inc. v. Diaz, 131 Cal.App.4th 1517, 1527 n. 11, 33 Cal.Rptr.3d 139 (2005) ("Insurance Code section 1871.4 defines the crime of presenting a false workers' compensation claim and sets forth its punishment range."). "[A] private right of action exists only if the language of the statute or its legislative history clearly indicates the Legislature intended to create such a right to sue for damages." Redmond v. San Jose Police Dep't, 2015 WL 2337874, at *2 (N.D.Cal. May 14, 2015) (alteration in original) (quoting Vikco Ins. Servs., Inc. v. Ohio Indem. Co., 70 Cal.App.4th 55, 82 Cal.Rptr.2d 442 (1999)). The United States Supreme Court has indicated that a private right of action under a criminal statute is rarely implied. Id. (citing Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979)). Here, a review of California Insurance Code § 1871.4 does not reveal an express private right of action. See Cal. Ins. Code § 1871.4; see also id. § 1871 (noting purpose of the chapter is, in part, for the Department of Insurance to "assist and receive assistance from federal, state, local, and administrative law enforcement agencies in the prosecution of persons who are parties in insurance frauds"). Nor does Plaintiff argue that a private right of action should be implied under California Insurance Code § 1871.4. Because Plaintiff does not assert this claim in the pleadings and can not bring this claim as a private plaintiff, the Court does not consider the allegations in Plaintiff's oppositions to the instant motions related to workers' compensation fraud.
The Court now turns to the merits of Plaintiff's claims. Given the number of Defendants in the instant lawsuit and the varying claims asserted, the Court will first discuss FedEx Office and Express, then turn to Freitas and Gallagher.
B. FedEx Office and Express
FedEx Office and Express both contend that, because of Minor I, all of Plaintiff's claims are barred by res judicata. Office Mot. at 11-13; Express Mot. at 7-10.1 Express moves to dismiss Plaintiff's claims on four additional bases: (1) Express was not Plaintiff's employer for purposes of the FEHA and the ADA; (2) Plaintiff has not exhausted his administrative remedies; (3) Plaintiff fails to state a claim for whistleblower retaliation under California Labor Code § 1102.5; and (4) Plaintiff's wrongful termination claim is untimely. Express Mot. at 10-14. Because the Court concludes that Plaintiff's claims against FedEx Office and Express are precluded by res judicata, the Court need not reach Express's remaining arguments.
"Res judicata, or claim preclusion, prohibits lawsuits on any claims that were raised or could have been raised in a prior action." Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.2002) (emphasis and internal quotation marks omitted). To determine the preclusive effect of Minor I — a federal court case — the Court must look to federal law. See W. Sys., Inc. v. Ulloa, 958 F.2d 864, 871 n. 11 (9th Cir.1992) ("The res judicata effect of federal court judgments is a matter of federal law."). Thus, to establish the res judicata effect of Minor I on the instant lawsuit, the Court looks to whether "there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties." United States v. Liquidators of European Fed. Credit Bank ("Liquidators"), 630 F.3d 1139, 1150 (9th Cir.2011).
In opposition to FedEx Office's and Express's motions to dismiss, Plaintiff does not challenge that these criteria are satisfied. ECF Nos. 47, 50. Nevertheless, the Court will address each factor in turn to determine whether the application of res judicata is appropriate.
1. Identity of Claims
To decide if there is identity of claims, courts in the Ninth Circuit apply four factors: "(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts." Liquidators, 630 F.3d at 1150 (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982)). The fourth factor is the most important. Id. Accordingly, the Court addresses this factor first. As to this factor, the Ninth Circuit has directed that "[w]hether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whether they could conveniently be tried together." Int'l Union of Operating Eng'rs-Emp'rs Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir.1993).
In both the instant case and Minor I, Plaintiff asserts the same violations of FEHA §§ 12946, 12940(h), (k), (m), 12945.2 and the same claim for wrongful termination in violation of public policy. The Court identifies just two differences between the claims that Plaintiff asserted in Minor I and the claims asserted in the instant case. First, in the instant complaint Plaintiff alleges that Plaintiff's FEHA claims are also viable claims under the ADA. Second, Plaintiff adds a single new claim, for whistleblower retaliation under California Labor Code § 1102.5. As explained below, these two differences are immaterial in the context of res judicata because the Court finds that Minor I and the instant lawsuit arise out of the same transactional nucleus of facts.
Minor I stemmed from workplace events leading up to, and including, Plaintiff's February 2011 termination. See Minor I Order. Specifically, Plaintiff alleged in Minor I that Plaintiff was demoted after complaining to management that employee timecards had been altered; that Plaintiff's employer delayed Plaintiff's hip surgery and then encouraged Plaintiff to return to work early post-operation; and that Plaintiff's employer did not properly accommodate Plaintiff's work restrictions after Plaintiff injured his knee at work. See id. at 2-3. Plaintiff asserted that Plaintiff's termination "was motivated by Plaintiff's disability and/or requests for time off due to Plaintiff's disability." Minor I Compl. 36.
Similarly, in the instant lawsuit, Plaintiff describes three events: Plaintiff's discovery of allegedly illegal tampering of employee timecards; Plaintiff's request for medical leave to have surgery on his right hip; and Plaintiff's work-related accident where Plaintiff injured his left knee. See Compl.5-47. As in Minor I, all of Plaintiff's claims in the instant case stem from Defendants' responses to and involvement in those events, including Plaintiff's eventual termination. See, e.g., id. 50 ("The termination of Plaintiff's employment was motivated by Plaintiff's disability and/or requests for time off due to Plaintiff's disability...."), 52 ("Rather than providing an accommodation, Defendants terminated Plaintiff's employment...."). For example, in both the instant case and Minor I, Plaintiff accuses FedEx Office and Express of failing to accommodate Plaintiff by forcing Plaintiff to do heavy lifting despite his knee injury. Compare Minor I Compl. 30 ("Plaintiff was left in the Federal Express store" alone and was required "to lift heavy boxes and shipments irregardless of the injury to his knee"), with Compl.59-60 (alleging that "Plaintiff was left alone to do international and domestic shipments" and then terminated because he was "unable to do heavy lifting"). Plaintiff does not allege that he has obtained any new evidence regarding these events that was unavailable to Plaintiff prior to the filing of Minor I. See Ardalan v. McHugh, 2013 WL 6212710, at *8 (N.D.Cal. Nov. 27, 2013) (finding identity of claims where plaintiff did not present any new evidence that was not raised in the previous lawsuit). Nor do Plaintiff's pleadings present new evidence. Thus, Plaintiff's claims here arise out of the same transactional nucleus of facts as Minor I.
Moreover, the fact that Plaintiff brings his disability-related claims pursuant to the ADA and adds a seventh claim for whistleblower retaliation under California Labor Code § 1102.5 has no bearing on res judicata. "Newly articulated claims based on the same nucleus of facts may still be subject to a res judicata finding if the claims could have been brought in the earlier action." Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1078 (9th Cir.2003). The Ninth Circuit has explained when a plaintiff could have brought a claim in an earlier action: "If the harm arose at the same time, then there was no reason why the plaintiff could not have brought the claim in the first action. The plaintiff simply could have added a claim to the complaint. If the harm arose from different facts at a different time, however, then the plaintiff could not have brought the claim in the first action." Liquidators, 630 F.3d at 1151.
Here, Plaintiff could have brought the ADA and California Labor Code § 1102.5 claims in Minor I because "[t]here are no real differences (if there are any differences at all) between the factual predicates" for the two actions. Id. Plaintiff's ADA claims are coextensive with the associated FEHA claims. See Compl.55-94 (asserting ADA and FEHA claims in same causes of action). As noted above, Plaintiff's FEHA claims are the same claims asserted in Minor I and arise from the same facts. Additionally, Plaintiff's California Labor Code § 1102.5 claim states that Plaintiff "reported the illegal tampering of employee time cards" to management and subsequently won the 2009 Class Action. Id.95-102. As a result of reporting these "wrongdoings," Plaintiff alleges that he "suffered continuous retaliation that last[ed] for over two and [a] half years" during which time he was denied benefits related to medical leave and ultimately terminated. Id.100-01, 106, 109-10. Plaintiff could have — and did — bring claims based on these same allegations in Minor I. Accordingly, the "transactional nucleus of facts" factor supports finding an "identity of claims" between all of the claims in the instant suit and Minor I.
Although satisfaction of the fourth factor is often sufficient to find an identity of claims for res judicata purposes without analysis of the other factors, see Int'l Union of Operating Eng'rs, 994 F.2d at 1430 (citing cases finding successive claims barred by res judicata based solely on analysis of the fourth factor), the Court examines the other three factors relevant to the identity of claims. The first factor is "whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action." Liquidators, 630 F.3d at 1150 n. 7. Minor I established that FedEx Office and Express could not be held liable for the alleged employment discrimination and retaliation. However, this factor is "unhelpful here because it begs the question. Resolution of that factor depends only on [the Court's] conclusion about res judicata." Id. In other words, whether the rights in Minor I would be destroyed depends on whether the Court concludes that the alleged employment discrimination and retaliation in the instant case is the same as that alleged in Minor I. Accordingly, the first factor is neutral.
The second factor supports a finding of an identity of claims because "substantially the same evidence" as was presented in Minor I would necessarily be presented here. See id. at 1150 & n. 7 (finding that the presentation of substantially the same evidence supports a finding of res judicata). The third factor also supports an identity of claims because the "two suits involve infringement of the same right," specifically Plaintiff's right to be free from employment discrimination and retaliation. Id. at 1150.
In sum, three factors support finding an identity of claims while one factor is neutral. The Court concludes that the identity of claims supports a finding that res judicata bars all seven of Plaintiff's claims against FedEx Office and Express.
2. Final Judgment on the Merits
"An involuntary dismissal generally acts as a judgment on the merits for the purposes of res judicata...." In re Schimmels, 127 F.3d 875, 884 (9th Cir. 1997). In Minor I, Plaintiff's complaint was involuntarily dismissed after the Court considered the merits of Plaintiff's claim. See Minor I Order at 18 (dismissing complaint against FedEx Office, Express, and FedEx Corporation with prejudice). This involuntary dismissal amounts to a final judgment on the merits for purposes of res judicata as to both FedEx Office and Express. The second prong, therefore, is satisfied.
Lastly, the Court looks at whether the prior actions and the current lawsuit involve parties in privity with each other. The Ninth Circuit has defined privity in the res judicata context as "a legal conclusion `designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.'" In re Schimmels, 127 F.3d at 881 (quoting Sw. Airlines Co. v. Tex. Int'l Airlines, Inc., 546 F.2d 84, 94 (5th Cir.1977)). Privity exists if "there is sufficient commonality of interest." Tahoe-Sierra, 322 F.3d at 1081. Here, there is no dispute that Plaintiff was the complainant in Minor I or that FedEx Office and Express were defendants in Minor I. Therefore, privity is established for these parties. See Liquidators, 630 F.3d at 1150 (privity established where parties are identical).
In light of the foregoing, the Court concludes that Plaintiff's claims against FedEx Office and Express are barred by the doctrine of res judicata. This deficiency is a legal one that can not be cured by amendment. Accordingly, the Court GRANTS FedEx Office's and Express's motions to dismiss with prejudice. See Leadsinger, Inc., 512 F.3d at 532 (noting that leave to amend may be denied "due to ... futility of amendment").
C. Freitas and Gallagher
The Court now turns to the two claims that Plaintiff asserts against Freitas and Gallaher: (1) failure to make reasonable accommodations in violation of FEHA § 12940(m) and ADA § 12112(b)(5), and (2) whistleblower retaliation in violation of California Labor Code § 1102.5. Because Freitas and Gallaher make similar arguments about these claims, the Court addresses these defendants' motions to dismiss together. The Court first addresses Plaintiff's failure to accommodate claim, and then Plaintiff's whistleblower retaliation claim.
1. Failure to Accommodate in Violation of FEHA § 12940(m) and ADA § 12112(b)(5)
Freitas and Gallagher move to dismiss Plaintiff's failure to accommodate claim on three bases: (1) Plaintiff fails to state a claim because neither Freitas nor Gallagher was Plaintiff's employer; (2) Plaintiff has not alleged that Plaintiff exhausted his administrative remedies; and (3) the claim is time-barred. Freitas also asserts that individual defendants can not be personally liable under the FEHA or the ADA. Office Mot. at 15-16. Plaintiff does not respond to any of Freitas's or Gallagher's arguments. Although this may be a sufficient basis for dismissal, the Court will consider Freitas's and Gallagher's arguments. The Court first considers exhaustion and timeliness, then turns to whether Freitas or Gallagher was Plaintiff's employer.
a. Plaintiff Has Not Alleged That He Exhausted His Administrative Remedies or Timely Filed the Complaint
Exhaustion under the FEHA requires filing a complaint with the DFEH within one year of the date of the alleged unlawful practice and obtaining notice of the right to sue. FEHA § 12960; see Romano v. Rockwell Int'l, Inc., 14 Cal.4th 479, 492, 59 Cal.Rptr.2d 20, 926 P.2d 1114 (1996). Moreover, for a civil suit to be timely, the plaintiff must bring a claim within one year of obtaining a right-to-sue letter from DFEH. See FEHA § 12965(b), (d) (noting "the one-year statute of limitations, commencing from the date of the right-to-sue notice by the [DFEH]"). The Court must generally dismiss unexhausted FEHA causes of action. Rodriguez v. Airborne Express, 265 F.3d 890, 900 (9th Cir. 2001) ("The administrative time limits prescribed by FEHA are treated as equivalent to statutes of limitations and are subject to equitable doctrines such as waiver, estoppel, and tolling."). Moreover, "[a]llegations in the civil complaint that fall out-side of the scope of the administrative charge are barred for failure to exhaust." See id. at 897.
Exhaustion under the ADA occurs when the plaintiff files a charge with the EEOC within 180 days from the date upon which the alleged unlawful practice occurred. See 42 U.S.C. § 2000e-5(e). If, however, a plaintiff has initially instituted proceedings with a state or local agency with authority to grant relief from the allegedly unlawful practice, a plaintiff has 300 days after the allegedly unlawful employment practice, or 30 days after receiving notice that the state or local agency has terminated proceedings under state or local law, whichever is earlier, to file a charge with the EEOC. Id. After receiving an EEOC right-to-sue letter, a plaintiff has 90 days to file suit. See id. § 2000e-5(f)(1). The Court lacks subject matter jurisdiction over unexhausted ADA claims. EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994).
In Plaintiff's pleadings, Plaintiff alleges that he filed a number of complaints with the DFEH. See, e.g., Compl.8, 35, 70, 83. However, Plaintiff does not allege that any of these DFEH complaints were brought against Freitas or Gallagher and does not explain the substance of the complaints. Nor does Plaintiff allege that Plaintiff filed any complaints against Freitas or Gallagher with the EEOC. See generally id.; FAC.
Freitas, however, states that Plaintiff filed a single charge against Freitas with the DFEH on June 1, 2010, ECF No. 34-21, and received notice of right-to-sue on April 1, 2011, ECF No. 34-22.2 The right-to-sue letter stated: "Based upon its investigation, DFEH is unable to conclude that the information obtained establishes a violation of the statute." Accordingly, the DFEH closed the file. ECF No. 34-22. Under the one-year statute of limitations, Plaintiff's right to sue on this complaint expired on April 1, 2012 — well before Plaintiff filed the instant lawsuit on December 29, 2015. FEHA § 12965(b). Plaintiff offers no reason to equitably toll the statute of limitations. Accordingly, any suit on this charge is time barred. Hughes v. Cty. of Mendocino, 2011 WL 4839234, at *3 (N.D.Cal. Oct. 12, 2011) (dismissing FEHA claims when suit was not filed within one year of receiving the right-to-sue letter from the DFEH and the complaint did not address equitable tolling).
As noted above, Plaintiff does not identify any additional DFEH or EEOC claims against Freitas. Nor does Plaintiff allege that Plaintiff filed any DFEH or EEOC complaints against or received any right-to-sue letters for Gallagher. See generally Compl.; FAC. In opposition to the instant motions to dismiss, Plaintiff does not point to any complaints that would demonstrate exhaustion nor argue that the Court should excuse Plaintiff's failure to exhaust. See generally ECF Nos. 45, 47. Accordingly, Plaintiff fails to allege that he exhausted his administrative remedies and thus fails to state a failure to accommodate claim under the FEHA or the ADA. Miller v. United Airlines, Inc., 174 Cal.App.3d 878, 890, 220 Cal.Rptr. 684 (1985) ("[Plaintiff] could not maintain a civil action alleging violations of the FEHA until after she had exhausted her administrative remedies pursuant to the FEHA."); Farmer Bros., 31 F.3d at 899 (federal courts lack jurisdiction over unexhausted ADA claims).
b. Whether Freitas or Gallagher Was Plaintiff's "Employer"
Although failure to exhaust is a sufficient basis for dismissal, the Court next addresses Freitas's and Gallagher's assertion that Plaintiff may not state a claim for failure to accommodate under the FEHA and the ADA because neither Freitas nor Gallagher was Plaintiff's employer. To determine whether Plaintiff has stated a failure to accommodate claim, the Court first analyzes the definition of "employer" under the FEHA and the ADA. The Court next considers the sufficiency of Plaintiff's allegations as to whether either Freitas or Gallagher was Plaintiff's employer. Lastly, the Court examines Freitas's argument that Freitas may not be held individually liable as an employer under the FEHA or the ADA.
i. Legal Standard
Claims under both FEHA § 12940(m) and ADA § 12112(b)(5)(A) may be brought only by an employee against an "employer." See FEHA § 12940(m) ("It is an unlawful employment practice ... [f]or an employer or other entity...to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee."); 42 U.S.C. §§ 12112(b)(5)(A), 12111(2) (providing that no "covered entity," or "employer," shall discriminate by "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee"). An "employer" is a person who employs more than five employees (under the FEHA) or fifteen employees (under the ADA). See FEHA § 12926(d) (defining an employer as, in part, "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly"); 42 U.S.C. § 12111(5)(A) ("The term `employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person....").
To determine whether an employer-employee relationship exists under the ADA, the U.S. Supreme Court has advised courts to examine "all of the incidents of the relationship." Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 451, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003); see also Vernon v. State, 116 Cal.App.4th 114, 124, 10 Cal.Rptr.3d 121 (2004) (noting that, to find an employer-employee relationship under the FEHA, courts consider the "`totality of circumstances' that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff's performance of employment duties"). The U.S. Supreme Court further noted: "The employer can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed." Clackamas, 538 U.S. at 445, 450, 123 S.Ct. 1673 ("[W]hen Congress has used the term `employee' without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." (internal quotation marks omitted)). Similar factors, centered on the extent to which the alleged employer controls the employee's performance of employment duties, govern the employer-employee determination under the FEHA. See Vernon, 116 Cal. App.4th at 125, 10 Cal.Rptr.3d 121 (noting the courts should examine, among other factors, the payment of salary or other employment benefits and Social Security taxes, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments).
ii. Lack of Allegations of an Employer-Employee Relationship
In the instant case, Plaintiff never alleges that Freitas or Gallagher was Plaintiff's "employer." See Compl.; FAC. Nor has Plaintiff alleged sufficient facts from which the Court may infer that Freitas or Gallagher was Plaintiff's employer. As to Freitas, who was a store manager at the FedEx Office where Plaintiff worked, Plaintiff alleges that Freitas and another store manager "knowingly made schedules where Plaintiff was left alone to do international and domestic shipments." Compl. 59. However, there are no other allegations relevant to an employee-employer relationship, including the relationship between Freitas, the other store manager, and FedEx Office; the extent of Freitas's supervision of Plaintiff; or whether Freitas could fire Plaintiff or direct Plaintiff's work.
As to Gallagher, the exhibits filed with the FAC indicate that Plaintiff has long acknowledged that Gallagher was FedEx Office's workers' compensation administrator. See FAC E-29 to -32 (Letter to Judge Henderson) (discussing a Gallagher claims adjustor's denial of Plaintiff's claim); E-46 to -50 (Letter to California State Bar) (arguing Gallagher violated duty as claims adjuster); E-68 (Letter to Attorney General) ("FedEx Kinkos is licensed and has worker's comp ins. Ace American (claims adjustor-Gallagher Basset Services)"). Plaintiff does not allege that Plaintiff had any interactions or relationship with Gallagher besides the dispute over Plaintiff's workers' compensation. However, if Gallagher acted only as FedEx Office's workers' compensation administrator, then Gallagher was not Plaintiff's employer. See Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1113 (9th Cir.2000) (finding that defendant was not the plaintiff's "employer" when the defendant "was simply the administrator of the employer's disability policy"); see also Marshall v. Whirlpool Corp., 2010 WL 348344, at *4 (N.D.Okla. Jan. 26, 2010) ("[Defendant] is simply the administrator of the disability policy and as such is not a `covered entity' under the ADA."); Van Hulle v. Pac. Telesis Corp., 124 F.Supp.2d 642, 643 n. 4 (N.D.Cal.2000) (administrator of Pacific Telesis's employee health insurance plans was not an employer of Pacific Telesis's employees). Moreover, the Court has taken judicial notice of documents that indicate that FedEx Office (not Freitas or Gallagher) paid and employed Plaintiff. See FAC E-91 (Letter from Plaintiff to Unidentified Recipient stating "I am writing this letter to report as a WHISTLEBLOWER against my employer FedEx Kinkos later renamed to FedEx Office..." (emphasis added)); id. E-121 (Letter to Santa Clara District Attorney stating "Gallagher Basset Services covers FedEx Office employees only" (emphasis added)); ECF No. 39-2 (joint stipulation in the 2009 Class Action signed by Plaintiff's counsel stating that FedEx Office paid and employed Plaintiff). The Court also notes that in Minor I, the Court found that Plaintiff had repeatedly acknowledged that FedEx Office was Plaintiff's employer. Minor I Order at 10. Plaintiff does not challenge this point. In fact, in Plaintiff's oppositions to the motions to dismiss, Plaintiff does not assert that either Freitas or Gallagher was Plaintiff's employer.
Because Plaintiff does not allege that Freitas or Gallagher was Plaintiff's employer, Plaintiff has not pled a claim for failure to accommodate under the FEHA or the ADA against Freitas or Gallagher. See, e.g., Montazer v. SM Stoller, Inc., 363 Fed.Appx. 460, 461 (9th Cir.2010) (affirming dismissal of federal discrimination claims when plaintiff failed to allege facts showing that any defendant was plaintiff's employer); Kelly v. Methodist Hosp. of S. Cal., 22 Cal.4th 1108, 1116, 95 Cal.Rptr.2d 514, 997 P.2d 1169 (2000) (noting that § 12926 "predicates potential FEHA liability on the status of the defendant as an `employer"').
iii. Individual Liability
Even if Plaintiff were to allege that Freitas was Plaintiff's employer, Plaintiff's failure to accommodate claim against Freitas would still fail under the ADA and the FEHA. The Ninth Circuit has clearly held, in accordance with other circuits, that "individual defendants cannot be held personally liable for violations of the ADA." See Walsh v. Nev. Dep't of Human Res., 471 F.3d 1033, 1037-38 (9th Cir.2006) (citing Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 177 (3rd Cir.2002); Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 n. 1 (6th Cir.1999); Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.1999); Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-80 (7th Cir.1995)). In so holding, the Ninth Circuit noted that, like Title VII of the Civil Rights Act of 1964, the ADA limits liability to employers with 15 or more employees. Id. at 1037. The Ninth Circuit explained that "Congress limited liability under Title VII to employers with 15 or more employees because it did not want to burden small entities with the costs associated with litigating discrimination claims" and it was "inconceivable that Congress intended to allow individual employees to be sued under Title VII." See id. at 1037 (internal quotation marks omitted). The Ninth Circuit held that the same reasoning applied to the ADA and thus, as with Title VII, individuals are not "employers" under the ADA. Id. at 1038. Accordingly, Freitas may not be personally liable as an "employer" for failing to accommodate Plaintiff under the ADA.
Similarly, the Court concludes that Freitas is not an "employer" for purposes of FEHA § 12940(m). Although California courts have not ruled specifically on the availability of individual liability under FEHA § 12940(m), the California Supreme Court has held that individual supervisors may not be sued personally under FEHA § 12940(a), which prohibits "an employer" from discriminating on the basis of disability. Reno v. Baird, 18 Cal.4th 640, 663, 76 Cal.Rptr.2d 499, 957 P.2d 1333 (1998). In Reno, the California Supreme Court looked to the definition of "employer" in Title VII and the ADA and noted the "clear and growing consensus" of federal courts holding that individual supervisors can not be liable for employment discrimination. Id. at 648, 659, 76 Cal.Rptr.2d 499, 957 P.2d 1333 ("We find the cases concluding supervisory employees are not individually liable persuasive in both number and reasoning."). The California Supreme Court explained that, similar to Title VII and the ADA, the FEHA exempts small employers from liability for discrimination. Id. at 650-51, 76 Cal.Rptr.2d 499, 957 P.2d 1333 (noting that an "employer" under the FEHA is limited to individuals or entities with five or more employees). In light of that limit, the California Supreme Court noted that there would be "incongruity between exempting small employers and imposing liability on individual supervisors." Id. at 663, 76 Cal.Rptr.2d 499, 957 P.2d 1333.
In addition, the California Supreme Court explained that the "[b]ehavior that gives rise to a discrimination claim...is often indistinguishable from performing one's job duties." Id. at 657, 76 Cal.Rptr.2d 499, 957 P.2d 1333. For example, employees may claim discrimination based on "hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non assignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like." Id. at 646-47, 76 Cal.Rptr.2d 499, 957 P.2d 1333. The California Supreme Court found that to allow individual liability for such "necessary personnel management actions" would inappropriately subject supervisory employees to "the ever-present threat of a lawsuit every time they make a personnel decision." Id.
Lastly, the California Supreme Court contrasted discrimination to harassment. While the FEHA prohibits discrimination by "an employer," the FEHA prohibits "an employer... or any other person" from harassing an employee. Id. at 644, 76 Cal.Rptr.2d 499, 957 P.2d 1333. Thus, individual supervisors may be held personally liable for harassment. Id. at 645, 657, 76 Cal.Rptr.2d 499, 957 P.2d 1333. The California Supreme Court explained that the difference in the availability of individual liability for discrimination and harassment is justified because "[h]arassment... consists of actions outside the scope of job duties which are not of a type necessary to do business and personnel management." Id. at 647, 76 Cal.Rptr.2d 499, 957 P.2d 1333. Unlike personnel decisions, "[n]o supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management." Id. at 646, 76 Cal.Rptr.2d 499, 957 P.2d 1333. Thus, "[e]very supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct." Id. For the above reasons, the California Supreme Court concluded that "individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts." Id. at 663, 76 Cal.Rptr.2d 499, 957 P.2d 1333.
Relying on Reno, the California Supreme Court in Jones v. Lodge at Torrey Pines P'ship held that individuals may not be held liable as "employers" for retaliation under FEHA § 12940(h). 42 Cal.4th 1158, 1160, 72 Cal.Rptr.3d 624, 177 P.3d 232 (2008). In the context of retaliation, the California Supreme Court noted that "[i]f an employee gains a reputation as a complainer, supervisors might be particularly afraid to impose discipline on that employee or make other lawful personnel decisions out of fear the employee might claim the action was retaliation for the complaining." Id. at 1167, 72 Cal.Rptr.3d 624, 177 P.3d 232. However, the California Supreme Court noted, "it is bad policy to subject supervisors to the threat of a lawsuit every time they make a personnel decision." Id. at 1167, 72 Cal.Rptr.3d 624, 177 P.3d 232. Accordingly, the California Supreme Court reasoned that "Reno's rationale for not holding individuals personally liable for discrimination applies equally to retaliation." Id. at 1164, 72 Cal.Rptr.3d 624, 177 P.3d 232. Accordingly, "nonemployer individuals are not personally liable for their role in... retaliation." Id. at 1173, 72 Cal.Rptr.3d 624, 177 P.3d 232.
Two district courts in this circuit have applied the reasoning of Reno to conclude that FEHA § 12940(m) does not permit individual liability for failure to accommodate. See Calderon v. Georgia-Pac. Corrugated LLC, 2008 WL 4159220, at *2 (E.D.Cal. Sept. 4, 2008) (dismissing failure to accommodate and disability discrimination claims because "Mr. Bergman and Mr. Wells, as supervisors, managers, superintendents, and/or agents of Georgia-Pacific, are not [plaintiff's] `employers.'"); Ball v. Los Rios Cmty. Coll. Dist., 2007 WL 1791689, at *2 (E.D.Cal. June 15, 2007) (dismissing failure to accommodate FEHA claims). The Court agrees.
Similar to the discrimination provision examined in Reno, which prohibited actions by "an employer," FEHA § 12940(m) prohibits actions by "an employer or other entity." Given the similarity of these provisions, the Court concludes that the reasoning of Reno applies equally to FEHA § 12940(m). See Ball, 2007 WL 1791689, at *2 (relying on Reno's explanation of the policy against individual liability and the plain language of FEHA § 12940(m) to rule that there is no individual liability for failure to accommodate). Moreover, the discriminatory conduct that Plaintiff alleges violates FEHA § 12940(m) includes the kind of "discriminatory hiring, firing, and personnel practices" contemplated in Reno and Jones that do not give rise to individual liability. See Reno, 18 Cal.4th at 645, 76 Cal.Rptr.2d 499, 957 P.2d 1333; Jones, 42 Cal.4th at 1160, 72 Cal.Rptr.3d 624, 177 P.3d 232. Plaintiff's complaint alleges that Freitas "violated FedEx Corporate Team Member policies and rules for employees" and "knowingly made schedules where Plaintiff was left alone to do international and domestic shipments." Compl.58-59. The complaint also alleges that "[r]ather than providing an accommodation, Defendants terminated Plaintiff's employment." Id. 52. Under Reno and Jones, personnel decisions including work assignments, setting of work schedules, and termination do not subject individual supervisors to liability under the FEHA. Thus, the Court finds that Freitas cannot be held individually liable for Plaintiff's failure to accommodate claim under FEHA § 12940(m).
c. Leave to Amend
In sum, Plaintiff has failed to allege exhaustion of administrative remedies and that either Freitas or Gallagher was Plaintiff's employer. Accordingly, the Court GRANTS Freitas's and Gallagher's motions to dismiss as to Plaintiff's failure to accommodate claim.
The Court concludes that granting Plaintiff leave to amend the failure to accommodate claim against Freitas would be legally futile. If exhaustion of administrative remedies was the only issue before the Court, the Court would grant leave to amend. Additionally, if the factual sufficiency of Plaintiff's allegations as to the employer-employee relationship was the only issue before the Court, the Court would grant leave to amend because Plaintiff may be able to allege additional facts to show that Freitas was Plaintiff's employer. However, as discussed above, Freitas may not be held individually liable for failure to accommodate under the FEHA or the ADA. Specifically, the Ninth Circuit has clearly stated that individual supervisors may not be held liable as employers under the ADA. See Walsh, 471 F.3d at 1038. Additionally, the California Supreme Court has held that individual supervisors may not be held individually liable under the FEHA for necessary personnel management decisions such as work assignments, setting of work schedules, and termination. See Reno, 18 Cal.4th at 663, 76 Cal.Rptr.2d 499, 957 P.2d 1333; Jones, 42 Cal.4th at 1160, 72 Cal.Rptr.3d 624, 177 P.3d 232. Accordingly, Freitas — one of Plaintiff's supervisors — could not be held individually liable for failing to accommodate Plaintiff even if Plaintiff exhausted administrative remedies and adequately alleged an employer-employee relationship. This deficiency is a legal one that Plaintiff can not cure through allegation of new facts. See Leadsinger, Inc., 512 F.3d at 532. Thus, the Court's dismissal of Plaintiff's failure to accommodate claim against Freitas is with prejudice.
However, as to Gallagher, the Court can not say that any amendment of Plaintiff's failure to accommodate claim against Gallagher would necessarily be futile. Accordingly, the Court's dismissal of Plaintiff's failure to accommodate claim against Gallagher is with leave to amend.
2. Whistleblower Retaliation Claim
Given Plaintiff's unclear pleadings, it appears that Freitas and Gallagher did not understand Plaintiff to raise a California Labor Code § 1102.5 whistleblower retaliation claim. Nonetheless, as discussed above, the Court construed Plaintiff's complaint liberally to include a claim under § 1102.5 against all Defendants. Accordingly, the Court deems it appropriate to examine whether Plaintiff is able to state a claim under § 1102.5. The Court finds dismissal appropriate for two reasons: (1) Plaintiff's claim is time barred; and (2) Plaintiff fails to allege that Freitas or Gallagher was Plaintiff's employer. The Court discusses the two reasons for dismissal in turn.
As a preliminary matter, only Express construed Plaintiff's pleadings to include a § 1102.5 claim and moved to dismiss the claim. Express argued that Plaintiff was unable to state a § 1102.5 claim because, among other reasons, the claim is untimely under the statute of limitations. Express Mot. at 13-14. In opposition to Express's motion to dismiss, Plaintiff does not refute Express's argument as to the statute of limitations nor address Plaintiff's § 1102.5 claim at all. Moreover, as discussed above, Plaintiff may not state a § 1102.5 claim against Express because the claim is barred by res judicata.
As to Plaintiff's § 1102.5 claim against Freitas and Gallagher, the Court first concludes that Plaintiff's claim is barred by the statute of limitations. California's statute of limitations for "[a]n action upon a liability created by statute, other than a penalty or forfeiture" is three years. See Cal. Civ. Proc. Code § 338(a). Therefore, actions commenced under § 1102.5 must be brought within three years. See Monk v. Sacramento Metro. Fire Dist., 2011 WL 6176078, at *11 (Cal. Ct.App. Dec. 13, 2011) (unpublished) (dismissing § 1102.5 claim as time barred under three-year statute of limitations set forth in Cal. Civ. Proc. Code § 338(a)). However, if the suit seeks the civil penalty provided in § 1102.5(f), the claim is subject to a one-year limitations period. See Terbeek v. Panda Rest. Grp. Inc., 2015 WL 1863046, at *4 (Cal.Ct.App. Apr. 22, 2015) (unpublished) (dismissing claim as time barred under one-year statute of limitations set forth in Cal. Civ. Proc. Code § 340(a)); Fenters v. Yosemite Chevron, 2009 WL 4928362, *7 (E.D.Cal. Dec. 14, 2009) (same). The Court need not decide which statute of limitations would apply in this case as Plaintiff's claim would be time barred under either statute of limitations as explained below. See Somers v. Digital Realty Trust, Inc., 2015 WL 4481987, at *3 (N.D.Cal. July 22, 2015) (noting that different courts have reached different conclusions regarding the applicable limitations period for § 1102.5 claims).
Specifically, construing Plaintiff's pleadings liberally, Plaintiff alleges that Freitas retaliated against Plaintiff by making schedules that failed to accommodate Plaintiff's disability. Compl. 59. Gallagher, as FedEx Office's third party claims administrator, allegedly denied Plaintiff's requests for medical treatment following Plaintiff's knee injury and refused to provide benefits. Id.101, 107. The time frame for these alleged retaliations is unclear. However, the latest date on which Plaintiff's whistleblower claim could have accrued is February 25, 2011, the date that Plaintiff was terminated and the latest alleged date of any retaliation by any defendants. See La v. San Mateo Cty. Transit Dist., 2014 WL 6682476, at *4 (N.D.Cal. Nov. 25, 2014) (citing Shoemaker v. Myers, 2 Cal.App.4th 1407, 1427, 4 Cal.Rptr.2d 203 (1992)) ("The latest date on which the statute of limitations for [plaintiff's] state law whistleblower causes of action could have accrued is the date of her termination...."). Yet Plaintiff waited until December 29, 2015, nearly five years after he was terminated, to file the instant lawsuit. Thus, Plaintiff's claim is untimely. See U.S. ex rel. Air Control Technologies, Inc. v. Pre Con Indus. Inc., 720 F.3d 1174, 1178 (9th Cir.2013) (claim may be dismissed as untimely pursuant to a 12(b)(6) motion when "the running of the statute [of limitations] is apparent on the face of the complaint"). The Court notes that Plaintiff makes no argument for tolling the statute of limitations.
As an alternative basis for dismissal, the Court considers whether Plaintiff has alleged Freitas or Gallagher was Plaintiff's employer for purposes of § 1102.5. Section 1102.5 is a whistleblower protection statute intended to encourage employees to report unlawful acts without fear of retaliation. Thus, § 1102.5(b) prohibits retaliation by "[a]n employer, or any person acting on behalf of an employer" against an employee "for disclosing information... if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation." As with the FEHA and ADA failure to accommodate claims, § 1102.5 claims may only be brought against "an employer." See id.; Hansen v. Cal. Dep't of Corr. & Rehab., 171 Cal.App.4th 1537, 1546, 90 Cal.Rptr.3d 381 (2008) ("Accordingly, a prerequisite to asserting a Labor Code section 1102.5 violation is the existence of an employer-employee relationship at the time the allegedly retaliatory action occurred.").
Section 1102.5 does not define "employer," so courts analyzing § 1102.5 claims have relied on interpretations of "employer" under the FEHA. See, e.g., Hall v. Apartment Inv. & Mgmt. Co., 2011 WL 940185, at *5 n. 6 (N.D.Cal. Feb. 18, 2011) (concluding that claims under the FEHA and California Labor Code were subject to the same analysis); Huse v. Auburn Honda, 2005 WL 1398521, at *3 (E.D.Cal. June 10, 2005) ("borrowing" definition of employer from Title VII and FEHA for purposes of § 1102.5 claim). Cf. Patten v. Grant Joint Union High Sch. Dist., 134 Cal.App.4th 1378, 1387, 37 Cal.Rptr.3d 113 (2005) (adopting, for purposes of § 1102.5 claim, definition of "adverse employment action" from FEHA cases). Under the FEHA, the employer-employee relationship is determined according to the totality of the circumstances, "with emphasis upon the extent to which the defendant controls the plaintiff's performance of employment duties." Hall, 2011 WL 940185 at *5 (quoting Vernon, 116 Cal.App.4th at 124, 10 Cal.Rptr.3d 121).
As discussed above, Plaintiff fails to allege that either Freitas or Gallagher was Plaintiff's "employer." Nor has Plaintiff alleged sufficient facts from which the Court may infer that Freitas or Gallagher was Plaintiff's employer. As to Freitas, Plaintiff's sole relevant allegation is that Freitas and another store manager "knowingly made schedules where Plaintiff was left alone to do international and domestic shipments." Compl. 59. There are no other allegations relevant to an employee-employer relationship, including the relationship between Freitas, the other store manager, and FedEx Office; the extent of Freitas's supervision of Plaintiff; or whether Freitas could fire Plaintiff or direct Plaintiff's work. Thus, the Court concludes that Plaintiff fails to allege that Freitas was Plaintiff's employer.
Furthermore, even if Plaintiff had alleged that Freitas was Plaintiff's employer, neither party addresses whether individual liability exists for employers under § 1102.5. Because this issue has not been briefed, the Court declines to determine whether individual liability is available under § 1102.5 and thus whether Freitas, an individual, can even be liable under § 1102.5. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) ("Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court.").
As to Gallagher, the exhibits filed with the FAC indicate that Plaintiff has long acknowledged that Gallagher was FedEx Office's workers' compensation administrator. See FAC E-29 to -32 (Letter to Judge Henderson) (discussing a Gallagher claims adjustor's denial of Plaintiff's claim); E-46 to -50 (Letter to California State Bar) (arguing Gallagher violated duty as claims adjuster); E-68 (Letter to Attorney General) ("FedEx Kinkos is licensed and has worker's comp ins. Ace American (claims adjustor-Gallagher Basset Services)"). Moreover, Plaintiff signed a stipulation in the 2009 Class Action stating that FedEx Office (not Freitas or Gallagher) paid and employed Plaintiff. See ECF No. 39-2. Plaintiff also wrote letters stating that FedEx Office was his employer. See FAC E-91 (Letter from Plaintiff to Unidentified Recipient stating "I am writing this letter to report as a WHISTLEBLOWER against my employer FedEx Kinkos later renamed to FedEx Office..." (emphasis added)); id. E-121 (Letter from Plaintiff to Santa Clara District Attorney stating "Gallagher Basset Services covers FedEx Office employees only" (emphasis added)). The Court also notes that in Minor I, the Court found that Plaintiff had repeatedly acknowledged that FedEx Office was Plaintiff's employer. Minor I Order at 10. Thus, Plaintiff has failed to establish that Gallagher was his employer, and in fact, there is an abundance of evidence to the contrary.
In light of the foregoing, the Court concludes that Plaintiff fails to allege that either Freitas or Gallagher was Plaintiff's employer for purposes of Plaintiff's § 1102.5 claim. Additionally, Plaintiff's claim is time barred. Accordingly, the Court GRANTS Gallagher's and Freitas's motions to dismiss as to Plaintiff's California Labor Code § 1102.5 claim. Plaintiff may be able to allege additional facts to show that the statute of limitations should be tolled, and that Gallagher or Freitas acted as Plaintiff's employer. Thus, as the Court can not say that amendment will necessarily be futile, this dismissal is with leave to amend. See Leadsinger, Inc., 512 F.3d at 532.
For the foregoing reasons, the Court rules as follows:
The Court GRANTS FedEx Office's and Express's motions to dismiss with prejudice;• The Court GRANTS Freitas's motion to dismiss with prejudice as to Plaintiff's claim for failure to accommodate under the FEHA and the ADA;• The Court GRANTS Freitas's motion to dismiss with leave to amend as to Plaintiff's California Labor Code § 1102.5 claim;• The Court GRANTS Gallagher's motion to dismiss with leave to amend as to Plaintiff's claim for failure to accommodate under the FEHA and the ADA and Plaintiff's California Labor Code § 1102.5 claim.
Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty (30) days of the date of this order.3 Failure to meet the thirty-day deadline to file an amended complaint or failure to cure the deficiencies identified in this Order will result in a dismissal with prejudice of Plaintiff's claims. Plaintiff may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Rule 15 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
1. As noted above, Express's motion focuses upon the four claims expressly listed in the FAC and not all seven of the claims identified by the Court. However, Express specifically incorporates by reference Express's first motion to dismiss, see Express Mot. at 6 n.1, which contends that all of Plaintiff's claims are barred by res judicata. Moreover, "[a]s a general matter, a court may, sua sponte, dismiss a case on preclusion grounds where the records of that court show that a previous action covering the same subject matter and parties had been dismissed." Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1054 (9th Cir.2005) (internal quotation marks omitted).
2. Freitas also requests judicial notice of an application for discrimination benefits that Plaintiff filed with the Workers' Compensation Appeals Board. ECF No. 34-5. Plaintiff does not rely on this application to argue that Plaintiff exhausted his administrative remedies under the FEHA. Moreover, to exhaust a claim under the FEHA, the employee must file a complaint with the DFEH — not the Workers' Compensation Appeals Board. See FEHA § 12960; Romano, 14 Cal.4th at 492, 59 Cal.Rptr.2d 20, 926 P.2d 1114.
3. Plaintiff is encouraged to continue seeking advice from the Federal Pro Se Program. Appointments may be made with the Federal Pro Se Program by calling (408) 297-1480, or by stopping by Room 2070 of the San Jose Courthouse, 280 South First Street, San Jose, CA 95113.
Personal Injury Cap
Fein v. Permanente Medical Group
Argued and Decided, October 15, 1985
Plaintiff and Appellant,
PERMANENTE MEDICAL GROUP,
Defendant and Appellant
(1985) 38 Cal.3d 137
211 Cal.Rptr. 368;
695 P.2d 665
In this medical malpractice action, both parties appeal from a judgment awarding plaintiff about $1 million in damages. Defendant claims that the trial court committed reversible error during the selection of the jury, in instructions on liability as well as damages, and in failing to order that the bulk of plaintiff's award be paid periodically rather than in a lump sum. Plaintiff defends the judgment against defendant's attacks, but maintains that the trial court, in fixing damages, should not have applied two provisions of the Medical Injury Compensation Reform Act of 1975 (MICRA): Civil Code section 3333.2, which limits noneconomic damages in medical malpractice cases to $250,000, and Civil Code section 3333.1, which modifies the traditional "collateral source" rule in such litigation. Plaintiff's claims are based on a constitutional challenge similar to the challenges [38 Cal.3d 143] to other provisions of MICRA that we recently addressed and rejected in American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359 [204 Cal.Rptr. 671, 683 P.2d 670], Barme v. Wood (1984) 37 Cal.3d 174 [207 Cal.Rptr. 816, 689 P.2d 446], and Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920 [211 Cal.Rptr. 77, 695 P.2d 164]. We conclude that the judgment should be affirmed in all respects.
On Saturday, February 21, 1976, plaintiff Lawrence Fein, a 34-year-old attorney employed by the Legislative Counsel Bureau of the California State Legislature in Sacramento, felt a brief pain in his chest as he was riding his bicycle to work. The pain lasted a minute or two. He noticed a similar brief pain the following day while he was jogging, and then, three days later, experienced another episode while walking after lunch. When the chest pain returned again while he was working at his office that evening, he became concerned for his health and, the following morning, called the office of his regular physician, Dr. Arlene Brandwein, who was employed by defendant Permanente Medical Group, an affiliate of the Kaiser Health Foundation (Kaiser).
Dr. Brandwein had no open appointment available that day, and her receptionist advised plaintiff to call Kaiser's central appointment desk for a "short appointment." He did so and was given an appointment for 4 p.m. that afternoon, Thursday, February 26. Plaintiff testified that he did not feel that the problem was so severe as to require immediate treatment at Kaiser Hospital's emergency room, and that he worked until the time for his scheduled appointment.
When he appeared for his appointment, plaintiff was examined by a nurse practitioner, Cheryl Welch, who was working under the supervision of a physician-consultant, Dr. Wintrop Frantz; plaintiff was aware that Nurse Welch was a nurse practitioner and he did not ask to see a doctor. After examining plaintiff and taking a history, Nurse Welch left the room to consult with Dr. Frantz. When she returned, she advised plaintiff that she and Dr. Frantz believed his pain was due to muscle spasm and that the doctor had given him a prescription for Valium. Plaintiff went home, took the Valium, and went to sleep.
That night, about 1 a.m., plaintiff awoke with severe chest pains. His wife drove him to the Kaiser emergency room where he was examined by Dr. Lowell Redding about 1:30 a.m. Following an examination that the doctor felt showed no signs of a heart problem, Dr. Redding ordered a chest X-ray. On the basis of his examination and the X-ray results, Dr. Redding [38 Cal.3d 144] also concluded that plaintiff was experiencing muscle spasms and gave him an injection of Demerol and a prescription for a codeine medication.
Plaintiff went home but continued to experience intermittent chest pain. About noon that same day, the pain became more severe and constant and plaintiff returned to the Kaiser emergency room where he was seen by another physician, Dr. Donald Oliver. From his initial examination of plaintiff Dr. Oliver also believed that plaintiff's problem was of muscular origin, but, after administering some pain medication, he directed that an electrocardiogram (EKG) be performed. The EKG showed that plaintiff was suffering from a heart attack (acute myocardial infarction). Plaintiff was then transferred to the cardiac care unit.
Following a period of hospitalization and medical treatment without surgery, plaintiff returned to his job on a part-time basis in October 1976, and resumed full-time work in September 1977. By the time of trial, he had been permitted to return to virtually all of his prior recreational activitiese.g., jogging, swimming, bicycling and skiing.
In February 1977, plaintiff filed the present action, alleging that his heart condition should have been diagnosed earlier and that treatment should have been given either to prevent the heart attack or, at least, to lessen its residual effects. The case went to judgment only against Permanente.
At trial, Dr. Harold Swan, the head of cardiology at the Cedars-Sinai Medical Center in Los Angeles, was the principal witness for plaintiff. Dr. Swan testified that an important signal that a heart attack may be imminent is chest pain which can radiate to other parts of the body. Such pain is not relieved by rest or pain medication. He stated that if the condition is properly diagnosed, a patient can be given Inderal to stabilize his condition, and that continued medication or surgery may relieve the condition.
Dr. Swan further testified that in his opinion any patient who appears with chest pains should be given an EKG to rule out the worst possibility, a heart problem. He stated that the symptoms that plaintiff had described to Nurse Welch at the 4 p.m. examination on Thursday, February 26, should have indicated to her that an EKG was in order. He also stated that when plaintiff returned to Kaiser late that same night with his chest pain unrelieved by the medication he had been given, Dr. Redding should also have ordered an EKG. According to Dr. Swan, if an EKG had been ordered at those times it could have revealed plaintiff's imminent heart attack, and treatment could have been administered which might have prevented or minimized the attack. [38 Cal.3d 145]
Dr. Swan also testified to the damage caused by the attack. He stated that as a result of the attack a large portion of plaintiff's heart muscle had died, reducing plaintiff's future life expectancy by about one-half, to about 16 or 17 years. Although Dr. Swan acknowledged that some of plaintiff's other coronary arteries also suffer from disease, he felt that if plaintiff had been properly treated his future life expectancy would be decreased by only 10 to 15 percent, rather than half.
Nurse Welch and Dr. Redding testified on behalf of the defense, indicating that the symptoms that plaintiff had reported to them at the time of the examinations were not the same symptoms he had described at trial. Defendant also introduced a number of expert witnessesnot employed by Kaiserwho stated that on the basis of the symptoms reported and observed before the heart attack, the medical personnel could not reasonably have determined that a heart attack was imminent. Additional defense evidence indicated (1) that an EKG would not have shown that a heart attack was imminent, (2) that because of the severe disease in the coronary arteries which caused plaintiff's heart attack, the attack could not have been prevented even had it been known that it was about to occur, and finally (3) that, given the deterioration in plaintiff's other coronary arteries, the heart attack had not affected plaintiff's life expectancy to the degree suggested by Dr. Swan.
In the face of this sharply conflicting evidence, the jury found in favor of plaintiff on the issue of liability and, pursuant to the trial court's instructions, returned special verdicts itemizing various elements of damages. The jury awarded $24,733 for wages lost by plaintiff to the time of trial, $63,000 for future medical expenses, and $700,000 for wages lost in the future as a result of the reduction in plaintiff's life expectancy. fn. 1 Finally, the jury awarded $500,000 for "noneconomic damages," to compensate for pain, suffering, inconvenience, physical impairment and other intangible damages sustained by plaintiff from the time of the injury until his death.
After the verdict was returned, defendant requested the court to modify the award and enter a judgment pursuant to three separate provisions of MICRA: (1) Civil Code section 3333.2which places a $250,000 limit on noneconomic damages, (2) Civil Code section 3333.1which alters the collateral source rule, and (3) Code of Civil Procedure section 667.7which provides for the periodic payment of damages. The trial court, which had rejected plaintiff's constitutional challenge to Civil Code sections 3333.2 [38 Cal.3d 146] and 3333.1 in a pretrial ruling, fn. 2 reduced the noneconomic damages to $250,000, reduced the award for past lost wages to $5,430deducting $19,303 that plaintiff had already received in disability payments as compensation for such lost wagesand ordered defendant to pay the first $63,000 of any future medical expenses not covered by medical insurance provided by plaintiff's employer, as such expenses were incurred. At the same time, the court declined to order that the award for future lost wages or noneconomic damages be paid periodically pursuant to Code of Civil Procedure section 667.7, determining that the statute was not "mandatory" and that "under the unique facts and circumstances of this case" a periodic payment award of such damages would "defeat rather than promote" the purpose of section 667.7.
As noted, both parties have appealed from the judgment. Defendant maintains that the trial court committed reversible error in (1) excusing all Kaiser members from the jury, (2) instructing on the duty of care of a nurse practitioner, (3) instructing on causation, (4) permitting plaintiff to recover wages lost because of his diminished life expectancy, and (5) refusing to order the periodic payment of all future damages. Plaintiff argues that the judgment in his favor should be affirmed, but asserts that the court erred in upholding the MICRA provisions at issue here. Since defendant's claims go to the basic validity of the judgment in favor of plaintiff, we turn first to its contentions.
At the outset of the empanelment of the jury, the court indicated that it would excuse from the jury those prospective jurors who would refuse to go to Kaiser for treatment under any circumstances and also those prospective jurors who were members of the Kaiser medical plan. When defendant noted its objection to the court's exclusion of the Kaiser members without conducting individual voir dire examinations, the court explained to the jury panel: "I am going to excuse you at this time because we've found that we can prolong the jury selection by just such a very long time by going through each and every juror under these circumstances. I'm not suggesting that ... everyone who goes to Kaiser could not fairly and with an open mind resolve the issues in this case, but we may be here for four weeks trying to [38 Cal.3d 147] get a jury under the circumstances. I hope you can appreciate that. Probably some of you have sat in on situations where we've tried to get jurors in cases and it just goes on and on and on and on because you'll be questioned in great detail." On inquiry, it turned out that 24 of the 60 persons on the initial jury panel were members of Kaiser. They were excused. Voir dire then proceeded in the ordinary fashion, with each party questioning the remaining jurors and exercising challenges for cause and peremptory challenges.
Although defendant does not contend that any of the jurors who ultimately served on the jury and decided the case were biased against it, it nonetheless asserts that the discharge of the Kaiser members was improper and warrants reversal. In support of its contention, it argues that a potential juror's mere membership in Kaiser does not provide a basis for a challenge for cause under the applicable California statute, Code of Civil Procedure section 602.
Past decisions do not provide a clear-cut answer to the question whether a potential juror's membership in Kaiser would itself render the juror subject to a statutory challenge for cause. Section 602 does not define with precision the degree of "interest" or connection with a party that will support a challenge for cause, fn. 3 and courts in other states have come to different conclusions with respect to the eligibility of potential jurors whose relationship to one of the parties is similar to Kaiser members' relationship to defendant. Some cases have found error when a trial court has failed to excuse such persons for cause (see, e.g., M & A Electric Power Cooperative v. Georger (Mo. 1972) 480 S.W.2d 868, 871-874 [69 A.L.R.3d 1286] [members of consumer" electrical cooperative]; Weatherbee v. Hutcheson (1966) 114 Ga.App. 761 [152 S.E.2d 715, 718-719] [policyholder of mutual insurance company]); other decisions, on which defendant relies, have found no error when a trial court has refused to excuse such jurors. (Rowley v. Group Health Coop. of Puget Sound (1976) 16 Wn.App. 373 [556 P.2d 250, 252-254] [member of health care cooperative].) In McKernan v. Los Angeles Gas etc. Co. (1911) 16 Cal.App. 280, 283 [116 P. 677]perhaps [38 Cal.3d 148] the closest California case in pointthe court indicated that the mere fact that some of the jurors were customers of the defendant utility company would not, in itself, mandate their excusal for cause.
 But whether or not under California law membership in Kaiser rendered the prospective jurors excludable for cause under section 602, we believe that it is clear that the trial court's discharge of such members provides no basis for reversing the judgment in this case. To begin with, even if membership in Kaiser is not itself disqualifying, it is not apparent that the trial court abused the broad discretion it retains over the jury selection process (see, e.g., Rousseau v. West Coast House Movers (1967) 256 Cal.App.2d 878, 883-886 [64 Cal.Rptr. 655]) by excusing the members in this case. As its comments to the jury suggest, the court had apparently discovered through past experience that in this situation the individual voir dire procedure would prove very time-consuming and unproductive, with a substantial proportion of the Kaiser members ultimately being subject to challenge by one party or the other. Furthermore, the trial court may reasonably have felt that the process of conducting an extensive voir dire of all Kaiser members might itself prejudice prospective jurors who did not belong to Kaiser. From experience, it may have foreseen that such questioning would invariably involve the recounting of specific, potentially prejudicial incidents concerning the prospective jurors and Kaiser, as well as the exploration of the relative satisfaction or dissatisfaction with Kaiser of the particular jurors on this venire. Such matters would, of course, not be admissible in the actual trial of the case, and the court may have feared that such revelations on voir dire might "taint" all of the other prospective jurors in the courtroom. Under these circumstances, it cannot be said that the trial court abused its discretion in excusing the Kaiser members without individual examination.
Further, even if the trial court did err in this regard, the error clearly would not warrant reversal. This follows from the general rule that an erroneous exclusion of a juror for cause provides no basis for overturning a judgment. (See, e.g., Asevado v. Orr (1893) 100 Cal. 293, 300-301 [34 P. 777]; McKernan v. Los Angeles Gas etc. Co., supra, 16 Cal.App. 280, 283; 1 Cal. Civil Procedure During Trial (Cont.Ed.Bar 1982) § 7.41, p. 298.) As the court explained in Dragovich v. Slosson (1952) 110 Cal.App.2d 370, 371 [242 P.2d 945]: "'Since a defendant or a party is not entitled to a jury composed of any particular jurors, the court may of its own motion discharge a qualified juror without committing any error, provided there is finally selected a jury composed of qualified and competent persons.'"  Although defendant attempts to fit this case within the proviso of the above ruleon the theory that the removal of the Kaiser members rendered the jury panel unconstitutionally nonrepresentative (cf. [38 Cal.3d 149] Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 [90 L.Ed. 1181, 66 S.Ct. 984, 166 A.L.R. 1412] [exclusion of daily wage earners])defendant points to no authority which even remotely supports its claim that Kaiser members are a "cognizable class," and the record in this case provides no evidence to suggest that this group has the kind of shared experiences, ideology or background that have been identified as the sine qua non of such a class. (See, e.g., People v. Fields (1983) 35 Cal.3d 329, 347-349 [197 Cal.Rptr. 803, 673 P.2d 680] [plurality opinion]; cf. People v. White (1954) 43 Cal.2d 740, 751 [278 P.2d 9] ["The system of jury selection primarily from the membership rosters of certain private clubs and organizations [such as the Lions, Rotary and the Chamber of Commerce] would normally tend to result in a systematic inclusion of a large proportion of business and professional people and a definite exclusion of certain classes such as ordinary working people."].) On this record, we cannot find that the jury that tried this matter was any less a cross-section of the community than it would have been had Kaiser members not been excused.
Accordingly, the manner in which the jury was selected provides no basis for reversing the judgment.
 Defendant next contends that the trial court misinstructed the jury on the standard of care by which Nurse Welch's conduct should be judged. In addition to the general BAJI instruction on the duty of care of a graduate nurse, the court told the jury that "the standard of care required of a nurse practitioner is that of a physician and surgeon ... when the nurse practitioner is examining a patient or making a diagnosis." fn. 4
We agree with defendant that this instruction is inconsistent with recent legislation setting forth general guidelines for the services that may properly be performed by registered nurses in this state. Section 2725 of the Business and Professions Code, as amended in 1974, explicitly declares a legislative intent "to recognize the existence of overlapping functions between physicians and registered nurses and to permit additional sharing of functions [38 Cal.3d 150] within organized health care systems which provide for collaboration between physicians and registered nurses." fn. 5 Section 2725 also includes, among the functions that properly fall within "the practice of nursing" in California, the "[o]bservation of signs and symptoms of illness, reactions to treatment, general behavior, or general physical condition, and ... determination of whether such signs, symptoms, reactions, behavior or general appearance exhibit abnormal characteristics ...." In light of these provisions, the "examination" or "diagnosis" of a patient cannot in all circumstances be saidas a matter of lawto be a function reserved to physicians, rather than registered nurses or nurse practitioners. fn. 6 Although plaintiff was certainly entitled to have the jury determine (1) whether defendant medical center was negligent in permitting a nurse practitioner to see a patient who exhibited the symptoms of which plaintiff complained and (2) whether Nurse Welch met the standard of care of a reasonably prudent nurse practitioner in conducting the examination and prescribing treatment in conjunction with her supervising physician, the court should not have told the jury that the nurse's conduct in this case mustas a matter of lawbe measured by the standard of care of a physician or surgeon. (See Fraijo v. Hartland Hospital (1979) 99 Cal.App.3d 331, 340-344 [160 Cal.Rptr. [38 Cal.3d 151] 246]. See generally Note, A Revolution in WhiteNew Approaches in Treating Nurses as Professionals (1977) 30 Vand.L.Rev. 839, 871-879.)
But while the instruction was erroneous, it is not reasonably probable that the error affected the judgment in this case. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) As noted, several hours after Nurse Welch examined plaintiff and gave him the Valium that her supervising doctor had prescribed, plaintiff returned to the medical center with similar complaints and was examined by a physician, Dr. Redding. Although there was considerable expert testimony that the failure of the medication to provide relief and the continued chest pain rendered the diagnosis of muscle spasm more questionable, Dr. Reddinglike Nurse Welchfailed to order an EKG. Given these facts, the jury could not reasonably have found Nurse Welch negligent under the physician standard of care without also finding Dr. Reddingwho had more information and to whom the physician standard of care was properly applicablesimilarly negligent. Defendant does not point to any evidence which suggests that the award in this case was affected by whether defendant's liability was grounded solely on the negligence of Dr. Redding, rather than on the negligence of both Dr. Redding and Nurse Welch, and, from our review of the record, we conclude that it is not reasonably probable that the instructional error affected the judgment. fn. 7 Accordingly, the erroneous instruction on the standard of care of a nurse practitioner does not warrant reversal.
Defendant also objects to several instructions on causation.  First, defendant contends that an instruction on concurrent causation fn. 8though accurately [38 Cal.3d 152] stating the lawshould not have been given because Permanente was the only defendant in the case. As plaintiff points out, however, the evidence suggested that the alleged negligence of a number of different persons employed by Permanente may have contributed to the injury, and the instructionworded in terms of the concurrent negligent conduct of more than one "person," not "defendant"properly informed the jury that each alleged negligent act could be a proximate cause of the injury regardless of the extent to which other negligent acts also contributed to the result. Although the instruction might not have been strictly necessary, the court did not err in giving it.
 Defendant also complains of another of the proximate cause instructions, which informed the jury that "[i]f the conduct of the defendant is a substantial factor in bringing about the injuries or damages to the plaintiff, the fact that the defendant neither foresaw nor should have foreseen the extent or nature of the injuries or damages, or the manner in which they occurred, does not prevent its conduct from being a proximate cause of such injuries or damages." This instruction simply informed the jury of the general rule that the unforeseeability of the extent or nature of the specific harm suffered by the plaintiff does not mean that the defendant's conduct was not a proximate cause of the injuries. (See, e.g., Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58-59 [192 Cal.Rptr. 857, 665 P.2d 947]. See generally 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 629, pp. 2911-2912 and cases cited.) Contrary to defendant's contention, this instruction is applicable whether or not there are concurrent tortfeasors. Furthermore, although defendant suggests that the jury could have interpreted the instruction to render it strictly liable for plaintiff's injuriesimposing liability on defendant even if its failure to have diagnosed (i.e., "foreseen") plaintiff's heart condition was not negligentthat suggestion ignores the context in which this instruction was given, as well as additional instructions which informed the jury that plaintiff's case depended upon a showing of negligence. fn. 9 Taken as a whole, the instructions did not suggest that defendant could be held strictly liable. [38 Cal.3d 153]
 Defendant next argues that the trial court erred in permitting the jury to award damages for the loss of earnings attributable to plaintiff's so-called "lost years," i.e., the period of time by which his life expectancy was diminished as a result of defendant's negligence. (See generally Fleming, The Lost Years: A Problem in the Computation and Distribution of Damages (1962) 50 Cal.L.Rev. 598 [hereafter The Lost Years].)
We believe that this was clearly a proper element of plaintiff's damages. As the United States Supreme Court explained in Sea-Land Services, Inc. v. Gaudet (1974) 414 U.S. 573, 594 [39 L.Ed.2d 9, 26, 9 S.Ct. 806]: "Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery 'on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury.' 2 Harper & James[, The Law of Torts (1956)] § 24.6, pp. 1293-1294 (emphasis in original)." (See also Rest.2d Torts, § 924, coms. d, e, pp. 525-526.) fn. 10 Although, to our knowledge, the lost years issue has not been previously decided in California, recovery of such damages is consistent with the general rule permitting an award based on the loss of future earnings a plaintiff is likely to suffer "because of inability to work for as long a period of time in the future as he could have done had he not sustained the accident." (Italics added.) (Robison v. Atchison, Topeka & S. F. Ry. Co. (1962) 211 Cal.App.2d 280, 288 [27 Cal.Rptr. 260].)
Contrary to defendant's contention, plaintiff's recovery of such future lost wages will not inevitably subject defendant to a "double payment" in the event plaintiff's heirs bring a wrongful death action at some point in the future. In Blackwell v. American Film Co. (1922) 189 Cal. 689, 700-702 [38 Cal.3d 154] [209 P. 999], we held that in a wrongful death case, a jury was properly instructed that in computing damages it should consider the amount the decedent had obtained from defendant in an earlier judgment as compensation for the impairment of his future earning capacity. Similarly, in the Sea-Land Services case, the Supreme Court recognized that an appropriate setoff may be made in the later wrongful death action. (Sea-Land Services, Inc. v. Gaudet, supra, 414 U.S. at pp. 592-594 & fn. 30 [39 L.Ed.2d at pp. 25-26].)
Defendant alternatively argues that the jury should have been instructed to deduct from plaintiff's prospective gross earnings of the lost years, the "saved" cost of necessities that plaintiff would not incur during that period. Although there is some authority to support the notion that damages for the lost years should be assessed on the basis of plaintiff's "net" loss (see The Lost Years, supra, 50 Cal.L.Rev. 598, 603 & fn. 23), we need not decide that issue in this case because defendant neither requested such an instruction at trial nor presented any evidence of anticipated cost savings that would have supported such an instruction. Under these circumstances, the trial court did not err in failing to instruct on the point. (See LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875 [148 Cal.Rptr. 355, 582 P.2d 946].)
After the jury returned its verdict, defendant requested the trial court to enter a judgmentpursuant to section 667.7 of the Code of Civil Procedureproviding for the periodic payment of future damages, rather than a lump-sum award. Although the trial court rejected plaintiff's constitutional challenge to the periodic payment provisiona conclusion consistent with our recent decision in American Bankit nonetheless denied defendant's request, interpreting section 667.7 as affording a trial court discretion in determining whether to enter a periodic payment judgment and concluding that on the facts of this case the legislative purpose of section 667.7 "would be defeated rather than promoted by ordering periodic payments rather than a lump sum award." Defendant contends that the trial court misinterpreted the statute and erred in failing to order periodic payment of all future damages.
 We agree with defendant that the trial court was in error insofar as it interpreted section 667.7 as "discretionary" rather than "mandatory." The statute provides that "[i]n any [medical malpractice action], a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum [38 Cal.3d 155] payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages." (Italics added.) fn. 11 Although in some contexts the use of the term "shall" may be consistent with a "discretionary" rather than a "mandatory" meaning (see, e.g., Estate of Mitchell (1942) 20 Cal.2d 48, 50-52 [123 P.2d 503]), the legislative history of section 667.7 leaves little doubt that here the Legislature intended to impose a mandatory duty on the trial court to enter a periodic payment judgment in cases falling within the four corners of the section. fn. 12 [38 Cal.3d 156]
 Nonetheless, for several reasons relating to the specific facts of this case, we conclude that the trial court judgment should not be reversed on this ground. To begin with, although the court formally rejected defendant's motion for a periodic payment order, its judgment did provide for the periodic payment of the damages which the jury awarded for plaintiff's future medical expenses, directing the defendant to pay such expenses "as [they] are incurred up to the amount of $63,000."
Second, with respect to the award of noneconomic damages, we find that defendant is in no position to complain of the absence of a periodic payment award. As noted, defendant did not move for a periodic payment award until after the jury had returned its special verdicts. Although the trial court had requested the jury to return a special verdict designating the total amount of its noneconomic damage awardto facilitate the application of Civil Code section 3333.2, whose constitutionality we discuss belowthe jury was not instructed to designate the portion of the noneconomic damage award that was attributable to future damages, and it did not do so. Instead, it returned an undifferentiated special verdict awarding noneconomic damages of $500,000. Because of defendant's failure to raise the periodic payment issue earlier, plaintiff was deprived of the opportunity to seek a special verdict designating the amount of "future noneconomic damage." Furthermore, as we have seen, the trial court, acting pursuant to Civil Code section 3333.2, reduced the $500,000 noneconomic damage verdict to $250,000. Given the facts of this case, the $250,000 might well reflect the noneconomic damage sustained by plaintiff up until the time of the judgment. Under the circumstances, we conclude that the interests of justice would be served by affirming the lump-sum noneconomic damage award. (See American Bank & Trust Co. v. Community Hospital, supra, 36 Cal.3d 359, 378.)
Third and finally, there is the question of the $700,000 award for lost future earnings. Although in general lost future earnings are a type of future damage particularly suitable to a periodic payment judgment, this case presents a somewhat unusual situation because the damages awarded are solely attributable to the earnings of plaintiff's lost years. If the trial court had ordered such damages paid periodically over the time period when the loss was expected to be incurred, the damages would have been paid in their entirety after plaintiff's expected death, and thusif the life expectancy predictions were accurateplaintiff would not have received any of this element of damages. Had defendant presented evidence by which the jury [38 Cal.3d 157] could have determined what proportion of the lost years' earnings would likely be spent for the support of plaintiff's dependents rather than plaintiff himself (see The Lost Years, supra, 50 Cal.L.Rev. 598, 613), and had it raised the periodic payment issue in a timely fashion so that the jury could have made special findings on that question, there might well be a strong argument that the dependents' share of the lost years' earnings should be subject to periodic payment. In the absence of any such apportionment, however, we conclude that the trial court properly determined that section 667.7 did not call for the periodic payment of this element of plaintiff's award.
Thus, in sum, we conclude that none of the defendant's contentions call for a reversal of the judgment.
We now turn to plaintiff's contentions.
As noted, although the jury by special verdict set plaintiff's noneconomic damages at $500,000, the trial court reduced that amount to $250,000 pursuant to Civil Code section 3333.2. fn. 13 Plaintiff challenges this ruling, contending that section 3333.2 is unconstitutional on a number of grounds. In many respects, plaintiff's argument tracks the constitutional objections to other provisions of MICRA that we have recently rejected in American Bank, Barme and Roa.
 We begin with the claim that section 3333.2 denies due process because it limits the potential recovery of medical malpractice claimants without providing them an adequate quid pro quo. In rejecting a similar challenge to the periodic payment provision at issue in American Bank, we explained that "[i]t is well established that a plaintiff has no vested property right in a particular measure of damages, and that the Legislature possesses broad authority to modify the scope and nature of such damages. (See, e.g., Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 129 [216 P.2d 825, 13 A.L.R.2d 252]; Feckenscher v. Gamble (1938) 12 Cal.2d 482, 499-500 [85 P.2d 885]; Tulley v. Tranor (1878) 53 Cal. 274, 280.) Since the demise of the substantive due process analysis of Lochner v. New York (1905) 198 U.S. 45 [49 L.Ed. 937, 25 S.Ct. 539], it has been clear that the constitutionality of measures affecting such economic rights under the due [38 Cal.3d 158] process clause does not depend on a judicial assessment of the justifications for the legislation or of the wisdom or fairness of the enactment [i.e., the "adequacy" of the quid pro quo]. So long as the measure is rationally related to a legitimate state interest, policy determinations as to the need for, and the desirability of, the enactment are for the Legislature." (Italics added.) (American Bank, supra, 36 Cal.3d 359, 368-369.)
It is true, of course, that section 3333.2 differs from the periodic payment provision in American Bank inasmuch as the periodic payment provisionin large measuresimply postpones a plaintiff's receipt of damages whereas section 3333.2 places a dollar limit on the amount of noneconomic damages that a plaintiff may obtain. fn. 14 That difference, however, does not alter the applicable due process standard of review. As our language in American Bank itself suggests, our past cases make clear that the Legislature retains broad control over the measure, as well as the timing, of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that the Legislature may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest. In Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d 121, for example, our court applied the "rational relationship" standard in dismissing a due process attack on a statuteCivil Code section 48awhich permitted a plaintiff who brought a libel or slander action against a newspaper generally to obtain only "special damages," largely eliminating the traditional right to obtain "general damages" that such a plaintiff had enjoyed before the statute. fn. 15
In light of our discussion of the legislative history and purposes of MICRA in American Bank, Barme and Roa, it is clear that section 3333.2 is rationally related to legitimate state interests. As we explained in those decisions, in enacting MICRA the Legislature was acting in a situation in which it had found that the rising cost of medical malpractice insurance was posing serious problems for the health care system in California, threatening to curtail the availability of medical care in some parts of the state and creating the very real possibility that many doctors would practice without insurance, leaving patients who might be injured by such doctors with the prospect of uncollectible judgments. In attempting to reduce the cost of [38 Cal.3d 159] medical malpractice insurance in MICRA, the Legislature enacted a variety of provisions affecting doctors, insurance companies and malpractice plaintiffs.
Section 3333.2, like the sections involved in American Bank, Barme and Roa, is, of course, one of the provisions which made changes in existing tort rules in an attempt to reduce the cost of medical malpractice litigation, and thereby restrain the increase in medical malpractice insurance premiums. It appears obvious that this sectionby placing a ceiling of $250,000 on the recovery of noneconomic damagesis rationally related to the objective of reducing the costs of malpractice defendants and their insurers.
There is no denying, of course, that in some caseslike this onesection 3333.2 will result in the recovery of a lower judgment than would have been obtained before the enactment of the statute. It is worth noting, however, that in seeking a means of lowering malpractice costs, the Legislature placed no limits whatsoever on a plaintiff's right to recover for all of the economic, pecuniary damagessuch as medical expenses or lost earningsresulting from the injury, but instead confined the statutory limitations to the recovery of noneconomic damages, andeven thenpermitted up to a $250,000 award for such damages. Thoughtful jurists and legal scholars have for some time raised serious questions as to the wisdom of awarding damages for pain and suffering in any negligence case, noting, inter alia, the inherent difficulties in placing a monetary value on such losses, the fact that money damages are at best only imperfect compensation for such intangible injuries and that such damages are generally passed on to, and borne by, innocent consumers. fn. 16 While the general propriety of such damages is, of course, firmly imbedded in our common law jurisprudence (see, e.g., Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893 [103 Cal.Rptr. 856, 500 P.2d 880]), no California case of which we are aware has ever suggested that the right to recover for such noneconomic [38 Cal.3d 160] injuries is constitutionally immune from legislative limitation or revision. (See, e.g., Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d 121, 126-128; fn. 15, ante. See generally Morris, Liability for Pain and Suffering (1959) 59 Colum.L.Rev. 476 [urging legislative revision of rules relating to damages for pain and suffering].)
Faced with the prospect that, in the absence of some cost reduction, medical malpractice plaintiffs might as a realistic matter have difficulty collecting judgments for any of their damagespecuniary as well as nonpecuniarythe Legislature concluded that it was in the public interest to attempt to obtain some cost savings by limiting noneconomic damages. Although reasonable persons can certainly disagree as to the wisdom of this provision, fn. 17 we cannot say that it is not rationally related to a legitimate state interest. fn. 18 [38 Cal.3d 161]
A number of state courts have invalidated statutory provisions limiting damages in medical malpractice actions on a variety of theories (see, e.g., Wright v. Central Du Page Hospital Assn. (1976) 63 Ill.2d 313 [347 N.E.2d 736, 80 A.L.R.3d 566]; Arneson v. Olson (N.D. 1978) 270 N.W.2d 125, 135-136; Carson v. Maurer (N.H. 1980) 120 N.H. 925 [424 A.2d 825, 836-838, 12 A.L.R.4th 1]; Baptist Hosp. of Southeast Texas v. Baber (Tex.Ct.App. 1984) 672 S.W.2d 296, 297-298); others have upheld such limitations. (See, e.g., Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374 [404 N.E.2d 585, 600-601]; Prendergast v. Nelson (1977) 199 Neb. 97 [256 N.W.2d 657, 668-672] [plurality opinion].) With only one exception, all of the invalidated statutes contained a ceiling which applied to both pecuniary and nonpecuniary damages, and several courtsin reaching their decisionswere apparently considerably influenced by the potential harshness of a limit that might prevent an injured person from even recovering the amount of his medical expenses. (See Anderson v. Wagner (1979) 79 Ill.2d 295 [402 N.E.2d 560, 564] [explaining decision in Wright, supra, 347 N.E.2d 736]; Arneson v. Olson, supra, 270 N.W.2d 125, 135.) fn. 19 Section 3333.2, of course, could have no such effect. In any event, as we have explained, we know of no principle of Californiaor federalconstitutional law which prohibits the Legislature from limiting the recovery of damages in a particular setting in order to further a legitimate state interest. (See, e.g., Cory v. Shierloh (1981) 29 Cal.3d 430, 437-440 [174 Cal.Rptr. 500, 629 P.2d 8] [upholding statute eliminating liability of persons who provide alcohol to drunk driver]; Duke Power Co. v. Carolina Env. Study Group, supra, 438 U.S. 59 [upholding statutory limit on liability in the event of a nuclear accident].) Accordingly, we conclude that section 3333.2 does not violate due process.
Plaintiff alternatively contends that the section violates the equal protection clause, both because it impermissibly discriminates between medical malpractice victims and other tort victims, imposing its limits only in medical malpractice cases, and because it improperly discriminates within the class of medical malpractice victims, denying a "complete" recovery of [38 Cal.3d 162] damages only to those malpractice plaintiffs with noneconomic damages exceeding $250,000.
 With respect to the first contention, it should be evident from what we have already said that the Legislature limited the application of section 3333.2 to medical malpractice cases because it was responding to an insurance "crisis" in that particular area and that the statute is rationally related to the legislative purpose. American Bank, Barme and Roa make clear that under these circumstances, plaintiff's initial equal protection claim has no merit. (See American Bank, supra, 36 Cal.3d 359, 370-374; Barme, supra, 37 Cal.3d 174, 181-182; Roa, supra, 37 Cal.3d 920, 930-931.)
 As for the claim that the statute violates equal protection because of its differential effect within the class of malpractice plaintiffs, the constitutional argument is equally unavailing. First, as we have already explained, the Legislature clearly had a reasonable basis for drawing a distinction between economic and noneconomic damages, providing that the desired cost savings should be obtained only by limiting the recovery of noneconomic damage. (See pp. 159-160, ante.) The equal protection clause certainly does not require the Legislature to limit a victim's recovery for out-of-pocket medical expenses or lost earnings simply because it has found it appropriate to place some limit on damages for pain and suffering and similar noneconomic losses. (See, e.g., Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d 121, 126-128.)
Second, there is similarly no merit to the claim that the statute violates equal protection principles because it obtains cost savings through a $250,000 limit on noneconomic damages, rather than, for example, through the complete elimination of all noneconomic damages. Although plaintiff and a supporting amicus claim that the $250,000 limit on noneconomic damages is more invidiousfrom an equal protection perspectivethan a complete abolition of such damages on the ground that the $250,000 limit falls more heavily on those with the most serious injuries, if that analysis were valid a complete abolition of damages would be equally vulnerable to an equal protection challenge, because abolition obviously imposes greater monetary losses on those plaintiffs who would have obtained larger damage awards than on those who would have recovered lesser amounts. Just as the complete elimination of a cause of action has never been viewed as invidiously discriminating within the class of victims who have lost the right to sue, the $250,000 limitwhich applies to all malpractice victimsdoes not amount to an unconstitutional discrimination.
Nor can we agree with amicus' contention that the $250,000 limit is unconstitutional because the Legislature could have realized its hoped-for cost [38 Cal.3d 163] savings by mandating a fixed-percentage reduction of all noneconomic damage awards. The choice between reasonable alternative methods for achieving a given objective is generally for the Legislature, and there are a number of reasons why the Legislature may have made the choice it did. One of the problems identified in the legislative hearings was the unpredictability of the size of large noneconomic damage awards, resulting from the inherent difficulties in valuing such damages and the great disparity in the price tag which different juries placed on such losses. The Legislature could reasonably have determined that an across-the-board limit would provide a more stable base on which to calculate insurance rates. Furthermore, as one amicus suggests, the Legislature may have felt that the fixed $250,000 limit would promote settlements by eliminating "the unknown possibility of phenomenal awards for pain and suffering that can make litigation worth the gamble." Finally, the Legislature simply may have felt that it was fairer to malpractice plaintiffs in general to reduce only the very large noneconomic damage awards, rather than to diminish the more modest recoveries for pain and suffering and the like in the great bulk of cases. Each of these grounds provides a sufficient rationale for the $250,000 limit.
In light of some of the dissent's comments, one additional observation is in order. Contrary to the dissent's assertion, our application of equal protection principles in American Bank, Barme, Roa and this case is not inconsistent with the principles enunciated in Brown v. Merlo (1973) 8 Cal.3d 855 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505], Cooper v. Bray (1978) 21 Cal.3d 841 [148 Cal.Rptr. 148, 582 P.2d 604], or like cases. As Cooper explains, under the traditional, rational relationship equal protection standard, what is required is that the court "'conduct "a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals."'" (21 Cal.3d at p. 848 [quoting Newland v. Board of Governors (1977) 19 Cal.3d 705, 711 (139 Cal.Rptr. 620, 566 P.2d 254), italics added in Cooper].) We have conducted such an inquiry in all of these cases, and have found that the statutory classifications are rationally related to the "realistically conceivable legislative purpose[s]" (Cooper, supra, 21 Cal.3d at p. 851) of MICRA. We have not invented fictitious purposes that could not have been within the contemplation of the Legislature (see Brown v. Merlo, supra, 8 Cal.3d at p. 865, fn. 7) nor ignored the disparity in treatment which the statute in realistic terms imposes. (Id. at p. 862.) But Brown and Cooper have never been interpreted to mean that we may properly strike down a statute simply because we disagree with the wisdom of the law or because we believe that there is a fairer method for dealing with the problem. (See Cory v. Shierloh, supra, 29 Cal.3d 430, 437-439.) Our recent decisions do not reflect our support for the challenged provisions of MICRA as a matter of policy, but simply our conclusion that under established constitutional principles the Legislature [38 Cal.3d 164] had the authority to adopt such measures. As Justice Traynor explained in Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d 121, 129: "[A] court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction of ill-considered legislation is a responsive legislature."
Accordingly, we conclude that section 3333.2 is constitutional. The trial court did not err in reducing the noneconomic damage award pursuant to its terms.
For similar reasons, plaintiff's constitutional challenge to Civil Code section 3333.1which modifies this state's common law "collateral source" ruleis also without merit.
 Under the traditional collateral source rule, a jury, in calculating a plaintiff's damages in a tort action, does not take into consideration benefitssuch as medical insurance or disability paymentswhich the plaintiff has received from sources other than the defendanti.e., "collateral sources"to cover losses resulting from the injury. (See, e.g., Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1 [84 Cal.Rptr. 173, 465 P.2d 61, 77 A.L.R.3d 398].) Section 3333.1 alters this rule in medical malpractice cases. fn. 20 Under section 3333.1, subdivision (a), a medical malpractice defendant is permitted to introduce evidence of such collateral source benefits received by or payable to the plaintiff; when a defendant chooses to introduce such evidence, the plaintiff may introduce evidence of the amounts he has paidin insurance premiums, for exampleto secure the benefits. Although section 3333.1, subdivision (a)as ultimately adopteddoes not specify how the jury should use such evidence, the Legislature apparently assumed that in most cases the jury would set plaintiff's damages [38 Cal.3d 165] at a lower level because of its awareness of plaintiff's "net" collateral source benefits. fn. 21
In addition, section 3333.1, subdivision (b) provides that whenever such collateral source evidence is introduced, the source of those benefits is precluded from obtaining subrogation either from the plaintiff or from the medical malpractice defendant. As far as the malpractice plaintiff is concerned, subdivision (b) assures that he will suffer no "double deduction" from his tort recovery as a result of his receipt of collateral source benefits; because the jury that has learned of his benefits may reduce his tort award by virtue of such benefits, the Legislature eliminated any right the collateral source may have had to obtain repayment of those benefits from the plaintiff. As for the malpractice defendant, subdivision (b) assures that any reduction in malpractice awards that may result from the jury's consideration of the plaintiff's collateral source benefits will inure to its benefit rather than to the benefit of the collateral source.
In our recent case of Barme v. Wood, supra, 37 Cal.3d 174, we addressed a constitutional challenge to section 3333.1, subdivision (b) brought by a "collateral source" whose subrogation rights against a malpractice defendant had been eliminated by the statute. In upholding the section's constitutionality, [38 Cal.3d 166] we explained that a collateral source has no vested due process right to subrogation and that section 3333.1, subdivision (b) is rationally related to the purposes of MICRA since it reduces the costs imposed on medical malpractice defendants by shifting some of the costs in the area to other insurers.
This case is not controlled by Barme, because here plaintiff challenges the validity of subdivision (a), rather than subdivision (b), and contends that the statute violates the rights of a malpractice plaintiff, rather than the rights of a collateral source. Nonetheless, plaintiff's constitutional challenge is still without merit.
 Again, we begin with the due process objections to the statute. Although, by its terms, subdivision (a) simply adds a new category of evidence that is admissible in a medical malpractice action, we recognize that in reality the provision affects the measure of a plaintiff's damage award, permitting the jury to reduce an award on the basis of collateral source benefits of whichbut for the statutethe jury would be unaware. Nonetheless, as we have already explained in our discussion of section 3333.2, a plaintiff has no vested property right in a particular measure of damages. Thus, the fact that the section may reduce a plaintiff's award does not render the provision unconstitutional so long as the measure is rationally related to a legitimate state interest.
Because section 3333.1, subdivision (a) is likely to lead to lower malpractice awards, there can be no question but that this provisionlike section 3333.2directly relates to MICRA's objective of reducing the costs incurred by malpractice defendants and their insurers. And, as we have seen, the Legislature could reasonably have determined that the reduction of such costs would serve the public interest by preserving the availability of medical care throughout the state and by helping to assure that patients who were injured by medical malpractice in the future would have a source of medical liability insurance to cover their losses.
Moreover, the Legislature clearly did not act irrationally in choosing to modify the collateral source rule as one means of lowering the costs of malpractice litigation. In analyzing the collateral source rule more than a decade ago in Helfend v. Southern Cal. Rapid Transit District, supra, 2 Cal.3d 1, we acknowledged that most legal commentators had severely criticized the rule for affording a plaintiff a "double recovery" for "losses" he [38 Cal.3d 167] had not in reality sustained, fn. 22 and we noted that many jurisdictions had either restricted or repealed it. (Id., at pp. 6-7, & fns. 4, 5 & 6.) Although we concluded in Helfend that a number of policy considerations counseled against judicial abolition of the rule, we in no way suggested that it was immune from legislative revision, but, on the contrary, stated that the changes proposed by legal commentators "if desirable, would be more effectively accomplished through legislative reform." (Id., at p. 13.) In the mid-1970's, California was only one of many states to include a modification of the collateral source rule as a part of its medical malpractice reform legislation (see Comment, An Analysis of State Legislative Responses to the Medical Malpractice Crisis (1975) Duke L.J. 1417, 1447-1450), and the American Bar Association's Commission on Medical Professional Liability also recommended abolition of the rule as one appropriate response to the medical malpractice "crisis." (See Rep. of Com. on Medical Professional Liability, supra, 102 ABA Ann. Rep. 786, 849-850.) Under the circumstances, we think it is clear that the provision is rationally related to a legitimate state interest and does not violate due process.
Plaintiff's equal protection challenge to section 3333.1 is equally without merit. As with all of the MICRA provisions that we have examined in recent cases, the Legislature could properly restrict the statute's application to medical malpractice cases because the provision was intended to help meet problems that had specifically arisen in the medical malpractice field.
Accordingly, the trial court did not err in upholding section 3333.1. fn. 23
The judgment is affirmed. Each party shall bear its own costs on appeal.
Broussard, J., Grodin, J., and Lucas, J., concurred.
BIRD, C. J.,
With today's decision, a majority of this court have upheld, in piecemeal fashion, statutory provisions that require victims [38 Cal.3d 168] of medical negligence to accept delayed payment of their judgments (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359 [204 Cal.Rptr. 671, 683 P.2d 670] [hereafter American Bank]), that prohibit them from paying the market rate for legal representation (Roa v. Lodi Medical Group (1985) 37 Cal.3d 920 [211 Cal.Rptr. 77, 695 P.2d 164]), that deprive them of compensation for proven noneconomic damages greater than $250,000 (maj. opn., ante, at pp. 157-164), and that divest them of the benefit of their own insurance policies (id., at pp. 164-167).
While the majority have considered the cumulative financial effect of these provisions on insurers to support their conclusion that MICRA might have some desirable impact on insurance rates (see maj. opn., ante, at p. 159, fn. 16), they have insisted upon assessing the human impact of each provision on injured victims in isolation. However, it is no longer possible to ignore the overall pattern of the MICRA scheme. In order to provide special relief to negligent healthcare providers and their insurers, MICRA arbitrarily singles out a few injured patients to be stripped of important and well-established protections against negligently inflicted harm.
Crisis or no crisis, this court is dutybound to apply the constitutional guarantee against irrational and invidious legislative classifications. Today's majority opinion represents a sad departure from this court's previously proud tradition of fulfilling that important duty.
By now, the story of MICRA is a familiar one. (See generally, American Bank, supra, 36 Cal.3d at p. 364.) Enacted in 1975 amidst a nationwide "medical malpractice crisis," it includes a number of provisions that seek to relieve healthcare providers and their insurers from some of the costs of medical malpractice litigation. Victims of medical negligenceespecially those afflicted with severe injurieshave been singled out to provide the bulk of this relief. These plaintiffs have been deprived of the benefit of various general rules that normally govern personal injury litigation. (See, e.g., Code Civ. Proc., § 667.7 [exception to general rule requiring immediate lump sum payment of a judgment]; Bus. & Prof. Code, § 6146 [special restrictions on attorney fees]; Civ. Code, § 3333.2 [special limit on noneconomic damages]; fn. 1 § 3333.1 [abrogation of collateral source rule].)
As political scientist Paul Starr has observed, "[a] crisis can be a truly marvelous mechanism for the withdrawal or suspension of established rights, and the acquisition and legitimation of new privileges." (Quoted in Jenkins & Schweinfurth, California's Medical Injury Compensation Reform Act: An Equal Protection Challenge (1979) 52 So.Cal. L.Rev. 829, 935 [38 Cal.3d 169] [hereafter California's MICRA.) However, now that the medical malpractice "crisis" is fading into the past, courts around the country are taking a closer look at medical malpractice legislation. At the time of this court's first MICRA decision, only three courts had invalidated medical malpractice legislation on equal protection grounds. (American Bank, supra, 36 Cal.3d at p. 370, fn. 10.) In the past year alone, that number has doubled. (See Austin v. Litvak (Colo. 1984) 682 P.2d 41; Baptist Hosp. of Southeast Texas v. Baber (Tex.Ct.App. 1984) 672 S.W.2d 296; Kenyon v. Hammer (1984) 142 Ariz. 69 [688 P.2d 961].)
Unfortunately, a majority of this court today decline to join this growing trend. Instead, they continue to defer to the Legislature's resolution of the "crisis," with dire consequences both for victims of medical negligence and for well-established principles of constitutional law.
The problems of this approach are rapidly becoming apparent as the courts begin to confront its human consequences. Less than one year ago, this court rejected the first MICRA challenge, upholding the periodic payment provision. (See American Bank, supra, 36 Cal.3d 359.) Already, that provision has been severely limited. In American Bank itself, this court mandated special procedures to offset the provision's worst effects (id., at pp. 376, 377, fn. 14) and declined to apply it to the case at bar. (Id., at p. 378.) Today, in "the interests of justice," this court approves the trial court's refusal to apply the provision to all but a small portion of the present plaintiff's award. (Maj. opn., ante, at p. 156.)
While the majority have upheld the various provisions of MICRA out of deference to the Legislature, it is unlikely that such ad hoc judicial adjustments to the act will ultimately produce a result that is more respectful of the Legislature than a clear-cut constitutional invalidation followed by a legislative revision of the scheme. The majority's well meaning attempt at "deference" serves only to perpetuate a fundamentally unjust statutory scheme.
For the first time, this court is confronted with a provision of MICRA that directly prohibits plaintiffs from recovering compensation for proven injuries. In contrast to the provisions so far upheld by this court, there is no pretense that the $250,000 limit on noneconomic damages affects only windfalls (compare American Bank, supra, 36 Cal.3d at p. 369), that it protects plaintiffs' awards (compare ibid.; Roa v. Lodi Medical Group, supra, 37 Cal.3d at p. 933), or that it discourages nonmeritorious suits (compare [38 Cal.3d 170] id., at p. 932.) The statute plainly and simply denies severely injured malpractice victims compensation for negligently inflicted harm.
Also for the first time, the weight of authority from other jurisdictions supports the constitutional challenge. A substantial majority of the courts of the nation that have addressed the constitutionality of medical malpractice damage limits have invalidated the challenged provisions. (See Wright v. Central Du Page Hospital Association (1976) 63 Ill.2d 313 [347 N.E.2d 736, 743, 80 A.L.R.3d 566]; Carson v. Maurer (1980) 120 N.H. 925 [424 A.2d 825, 838, 12 A.L.R.4th 1] [hereafter Carson]; Arneson v. Olson (N.D. 1978) 270 N.W.2d 125, 136; Baptist Hosp. of Southeast Texas v. Baber, supra, 672 S.W.2d at p. 298; Simon v. St. Elizabeth Medical Center (1976) 3 Ohio Ops.3d 164 [355 N.E.2d 903, 906-907] [dictum]; cf. Jones v. State Board of Medicine (1976) 97 Idaho 859 [555 P.2d 399, 416], cert. den., 431 U.S. 914 [53 L.Ed.2d 223, 97 S.Ct. 2173] [remanding for factual determination on whether a medical malpractice crisis actually existed]; but see Johnson v. St. Vincent Hospital, Inc. (1980) 273 Ind. 374 [404 N.E.2d 585, 601].)
In Carson, supra, 424 A.2d at page 838, the New Hampshire Supreme Court struck down a damage limit identical to the present one. The court explained that "[i]t is simply unfair and unreasonable to impose the burden of supporting the medical care industry solely upon those persons who are most severely injured and therefore most in need of compensation." (Id., at p. 837.) fn. 2
The majority suggest that, with the exception of Carson, the decisions of other jurisdictions are factually distinguishable from the present case. It is argued that the invalidated statutes were more oppressive than the present one since they restricted recovery for all types of injury. (See maj. opn., ante, at p. 161.) However, in Baptist Hosp. of Southeast Texas v. Baber, supra, 672 S.W.2d 296, a Texas appellate court invalidated a $500,000 limit that applied only to damages other than medical expenses. Also, in Simon v. St. Elizabeth Medical Center, supra, 355 N.E.2d 903, an Ohio appellate court stated in dictum that a $200,000 limit on "general" damages, similar to the limit on "noneconomic" damages involved in the present case, violated the United States and Ohio Constitutions. These provisions were not markedly more severe than MICRA's $250,000 limit on noneconomic damages. [38 Cal.3d 171]
Moreover, for many plaintiffs the present limit may be no less harsh than the $500,000 limit on total damages struck down by the Illinois Supreme Court in Wright v. Central Du Page Hospital Association, supra, 347 N.E.2d at page 741. Depending on the relative size of a particular plaintiff's economic and noneconomic damages, the present limit might produce more or less harsh results than the Illinois statute. Only the North Dakota and Ohio statutes imposed substantially more stringent restrictions. (See Arneson v. Olson, supra, 270 N.W.2d at p. 135 [$300,000 limit on total damages]; Jones v. State Board of Medicine, supra, 555 P.2d at p. 410 [$150,000 limit on total damages].)
The burden on medical malpractice victims is no less real by virtue of the fact that it is "noneconomic" injury which goes uncompensated. Noneconomic injuries include not only physical pain and loss of enjoyment, but also "fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal." (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893 [103 Cal.Rptr. 856, 500 P.2d 880].)
For a child who has been paralyzed from the neck down, the only compensation for a lifetime without play comes from noneconomic damages. Similarly, a person who has been hideously disfigured receives only noneconomic damages to ameliorate the resulting humiliation and embarassment.
Pain and suffering are afflictions shared by all human beings, regardless of economic status. For poor plaintiffs, noneconomic damages can provide the principal source of compensation for reduced lifespan or loss of physical capacity. Unlike the attorney in the present case, these plaintiffs may be unable to prove substantial loss of future earnings or other economic damages.
At first blush, $250,000 sounds like a considerable sum to allow for noneconomic damages. However, as amici California Hospital Association and California Medical Association candidly admit, most large recoveries come in cases involving permanent damage to infants or to young, previously healthy adults. Spread out over the expected lifetime of a young person, $250,000 shrinks to insignificance. Injured infants are prohibited from recovering more than three or four thousand dollars per year, no matter how excruciating their pain, how truncated their lifespans, or how grotesque their disfigurement. Even this small figure will gradually decline as inflation erodes the real value of the allowable compensation. [38 Cal.3d 172]
The majority are able to cite only a single decision upholding a limit on medical malpractice damages. fn. 3 In Johnson v. St. Vincent Hospital, Inc., supra, 404 N.E.2d 585, 601, the Indiana Supreme Court upheld a $500,000 limit on total damages. However, the Indiana statute did more than restrict malpractice victims' recoveries. In order to obtain the benefits of the limit, health care providers were required to contribute to a state-run compensation fund. (Id., at p. 601; Ind. Code, tit. 16, art. 9.5, ch. 2-1.)
By contrast, the present limit is not linked to any public benefit. Insurers and health care providers are free to retain any savings for private use. Moreover, the Legislature had before it no evidence that the immense sacrifices of victims would result in appreciable savings to the insurance companies. In the years preceding the enactment of MICRA, an insignificant number of individuals (at maximum, 14 in a single year) received compensation of over $250,000 in noneconomic and economic damages combined. (See Cal. Auditor General, The Medical Malpractice Insurance Crisis in California (1975) p. 31 [hereafter Report of the Auditor General].) Further, it does not appear that the Legislature had access to any data specifically relating to noneconomic damages. (Id., at pp. 30-31; see generally, California's MICRA, supra, at p. 951.)
As in American Bank and Roa, this court is urged to apply a heightened level of equal protection scrutiny. (Cf. Carson v. Maurer, supra, 424 A.2d 825.) However, I do not find it necessary to address that issue, since the limit cannot survive any "'serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals.'" (Cooper v. Bray (1978) 21 Cal.3d 841, 848 [148 Cal.Rptr. 148, 582 P.2d 604], quoting Newland v. Board of Governors (1977) 19 Cal.3d 705, 711 [139 Cal.Rptr. 620, 566 P.2d 254].)
Only one legitimate purpose is advanced in support of the statute: that of preserving medical malpractice insurance so that plaintiffs will be able to collect on the unrestricted portions of their judgments. (Maj. opn., ante, at p. 158.) Admittedly, the objective of preserving insurance is legitimate. And, the Legislature might reasonably have determined that special relief [38 Cal.3d 173] to medical tortfeasors and their insurance companies would effectuate that purpose. (See American Bank, supra, 36 Cal.3d at p. 372.)
However, it is not enough that the statute as a whole might tend to serve the asserted purpose. Each statutory classification "'"must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."'" (Brown v. Merlo (1973) 8 Cal.3d 855, 861 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505]; see also Cooper v. Bray, supra, 21 Cal.3d at p. 848; Newland v. Board of Governors, supra, 19 Cal.3d at p. 711.)
There is no logically supportable reason why the most severely injured malpractice victims should be singled out to pay for special relief to medical tortfeasors and their insurers. The idea of preserving insurance by imposing huge sacrifices on a few victims is logically perverse. Insurance is a device for spreading risks and costs among large numbers of people so that no one person is crushed by misfortune. (See generally, Keeton, Basic Insurance Law (1960) p. 484.) In a strange reversal of this principle, the statute concentrates the costs of the worst injuries on a few individuals.
The result is a fundamentally arbitrary classification. Under the statute, a person who suffers a severe injuryfor example loss of limbs or eyesightlate in life may receive up to $250,000 for the resulting loss of enjoyment during his or her final years. An infant with identical injuries is limited to the same compensation for an entire lifetime of blindness or immobility.
Such arbitrary treatment cannot be justified with reference to the purpose of the statute. Without speculating on the wisdom of the possible alternatives, it is plain that the Legislature could have provided special relief to health care providers and insurers without imposing these crushing burdens on a few arbitrarily selected victims. Most obviously, the burden could have been spread among all of the statute's beneficiarieshealth care consumers or, more broadly, the taxpayers. Alternately, the Legislature could have reduced all noneconomic damage awards in medical malpractice actions by a pro rata amount. (See California's MICRA, supra, 52 So.Cal.L.Rev. at p. 952.)
The majority suggest three rationales for singling out the most severely injured plaintiffs to bear the burden. First, it is suggested that "[t]he Legislature could reasonably have determined that an across-the-board limit would provide a more stable base on which to calculate insurance rates." (Maj. opn., ante, at p. 163.) However, the same could be said of any restriction on recoveries, regardless of the existence or nature of classifications [38 Cal.3d 174] among tort victims. In effect, this rationale ignores the fact that plaintiff is challenging a classification among tort victims.
Next, the majority hypothesize that "the Legislature may have felt that the fixed $250,000 limit would promote settlements by eliminating 'the unknown possibility of phenomenal awards for pain and suffering that can make litigation worth the gamble.'" (Maj. opn., ante, at p. 163.) Again, any restriction on recoveries might make plaintiffs less willing to face the risk of litigation. Like the "stability" rationale, this theory fails to address the nature of the classifications among plaintiffs.
Finally, it is suggested that "the Legislature simply may have felt that it was fairer to malpractice plaintiffs in general to reduce only the very large noneconomic damage awards, rather than to diminish the more modest recoveries for pain and suffering and the like in the great bulk of cases." (Maj. opn., ante, at p. 163.) The notion that the Legislature might have concentrated the burden of medical malpractice on the most severely injured victims out of considerations of fairness certainly has the advantage of originality.
While many courts have concluded that fixed malpractice damage limits are grossly unfair (see cases cited ante, at p. 169), none has suggested the possibility of fairness as a legitimate basis for such a limit. If "fairness" can justify the present limit, it is hard to imagine a statute that could be invalidated under the majority's version of equal protection scrutiny.
The majority's acceptance of rationales so broad and speculative that they could justify virtually any enactment calls attention to the implications of the MICRA cases for equal protection doctrine in this state. In American Bank, supra, 36 Cal.3d at page 398 (dis. opn. of Bird, C. J.), I joined a majority of this court in rejecting the notion of "intermediate" equal protection scrutiny. However, I conditioned that rejection on the beliefgrounded in the past practice of this courtthat the alternative was a two-tier system with a meaningful level of scrutiny under the lower tier. (Id., at pp. 398-401; see also Hawkins v. Superior Court (1978) 22 Cal.3d 584, 607-610 [150 Cal.Rptr. 435, 586 P.2d 916] (conc. opn. of Bird, C. J.).)
In particular, I relied on Brown v. Merlo, supra, 8 Cal.3d 855. In Brown, this court conducted a serious and sensitive inquiry into the nature and purposes of the automobile guest statute. The court demanded not only that the enactment might tend to serve some conceivable legislative purpose, but also that each classification bear a fair and substantial relationship to a legitimate purpose. (Id., at p. 861.) The guest statute failed to pass this level of scrutiny since the classification of all automobile guests bore an insufficiently [38 Cal.3d 175] precise relation to the asserted purposes. For example, the classification was held to be overinclusive with regard to the purpose of preventing collusive suits. (Id., at p. 877.) Brown was subsequently followed in Cooper v. Bray, supra, 21 Cal.3d 841.
If applied in the present case, the mode of analysis used in Brown and Cooper would compel invalidation of the $250,000 limit, which is grossly underinclusive by any standard. Millions of healthcare consumers stand to gain from whatever savings the limit produces. Yet, the entire burden of paying for this benefit is concentrated on a handful of badly injured victimsfewer than 15 in the year MICRA was enacted. (See Report of the Auditor General, supra, at p. 31.) Although the Legislature normally enjoys wide latitude in distributing the burdens of personal injuries, the singling out of such a minuscule and vulnerable group violates even the most undemanding standard of underinclusiveness.
However, the MICRA majority opinions have made no attempt to assess the over- or under-inclusiveness of the legislative classifications at issue. American Bank, Barme, and Roa could arguably be distinguished from Brown and Cooper on the ground that the MICRA provisions at issue did not directly deny malpractice victims compensation for negligently inflicted harm. However, if Brown and Cooper retain any vitality today, their analysis must be applied in the present case.
At a bare minimum the court should honestly confront the existence of Brown and Cooper. In my view, it is remarkable that neither of these decisionspreviously considered to be leading opinions on the application of equal protection analysis in the personal injury areais capable of being distinguished in any MICRA majority opinion.
In conclusion, there is no rational basis for singling out the most severely injured victims of medical negligence to pay for special relief to health care providers and their insurers. Hence, the $250,000 limit on noneconomic damages cannot withstand any meaningful level of judicial scrutiny.
Plaintiff also challenges section 3333.1, which deprives medical malpractice victims of the benefits of the longstanding collateral source rule. fn. 4
The collateral source rule bars the deduction of collateral compensation, such as insurance benefits, from a tort victim's damage award. (See Hrnjak [38 Cal.3d 176] v. Graymar, Inc. (1971) 4 Cal.3d 725, 729 [484 P.2d 599, 47 A.L.R.3d 224]; see generally, Schwartz, The Collateral-Source Rule (1961) 41 B.U.L.Rev. 348, 354.) The effect of the rule is to prevent tortfeasors and their insurers from reaping the benefits of collateral source funds, which "are usually created through the prudence and foresight of persons other than the tortfeasor, frequently including the injured person himself." (Gypsum Carrier, Inc. v. Handelsman (9th Cir. 1962) 307 F.2d 525, 534-535 [4 A.L.R.3d 517].)
As this court has observed, the collateral source rule embodies "the venerable concept that a person who has invested years of insurance premiums to assure his medical care should receive the benefits of his thrift. The tortfeasor should not garner the benefits of his victim's providence." (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 9-10 [84 Cal.Rptr. 173, 465 P.2d 61, 77 A.L.R.3d 398] [hereafter Helfend].) In the present case, the plaintiff collected workers' compensation, which he earned indirectly from his employment.
It is not disputed that section 3333.1 must be reviewed under the rational relationship test. That test requires that legislative classifications bear a rational relationship to a legitimate state purpose to pass constitutional muster. (See Brown v. Merlo, supra, 8 Cal.3d at p. 882; Cooper v. Bray, supra, 21 Cal.3d at p. 848.)
The proponents of section 3333.1 have suggested that it serves two purposes. First, it seeks to eliminate double recoveries by victims. (See Keene, California's Medical Malpractice Crisis, in A Legislator's Guide to the Medical Malpractice Issue (Warren & Merritt edits. 1976) p. 31.) However, there is no apparent reason why legislation enacted for this purpose should be limited to medical malpractice victims. (See Graley v. Satayatham (1976) 74 Ohio Ops.2d 316 [343 N.E.2d 832, 836-838].)
Moreover, as this court has recognized, the collateral source rule "does not actually render 'double recovery' for the plaintiff." (Helfend, supra, 2 Cal.3d at p. 12.) Tort victims are not fully compensated for their injuries by their judgments alone. The jury is directed to award damages only in the amount of the plaintiff's injuries. Yet, plaintiffs must pay attorney fees and costs out of their recoveries. Generally, fees and costs account for a substantial proportion of the recovery in medical malpractice actions. (See U.S. Dept. of Health, Ed. & Welf., Rep. of Sect.'s Com. on Medical Malpractice (1973) p. 32.)
The collateral source rule enables the plaintiff to recover some of these costs from collateral sources. Hence, the rule "will not usually give him [38 Cal.3d 177] 'double recovery,' but partially provides a somewhat closer approximation to full compensation for his injuries." (Helfend, supra, 2 Cal.3d at p. 13.) Section 3333.1 will prevent many tort victims from obtaining this relatively full compensation simply because they were injured by a doctor instead of some nonmedical tortfeasor.
Furthermore, while supposedly eliminating victims' "windfalls," section 3333.1 provides a windfall to negligent tortfeasors. Under section 3333.1, negligent healthcare providers obtain a special exemption from the general rule that negligent tortfeasors must fully compensate their victims. "No reason in law, equity or good conscience can be advanced why a wrongdoer should benefit from part payment from a collateral source. ... If there must be a windfall certainly it is more just that the injured person shall profit therefrom, rather than the wrongdoer ...." (Grayson v. Williams (10th Cir. 1958) 256 F.2d 61, 65; see also Helfend, supra, 2 Cal.3d at p. 10.)
The second purpose advanced to justify section 3333.1 is that of reducing the cost of medical malpractice insurance, the overall goal of MICRA. (See Stats. 1975, Second Ex. Sess. 1975-1976, ch. 2, § 12.5, p. 4007.) It is argued that the Legislature rationally singled out medical malpractice actions in order to alleviate a "crisis" in medical malpractice insurance rates.
However, the relationship between section 3333.1 and the reduction of malpractice insurance premiums is entirely speculative. There is no requirement that physicians' insurers pass on their savings in the form of lowered premiums. Hence, insurance companies may simply retain their windfall for private purposes. Further, section 3333.1 operates only as a rule of evidence. Juries may choose not to offset collateral compensation. Hence, "a degree of arbitrariness may frustrate the relationship between this provision and attainment of MICRA's goal." (California's MICRA, supra, 52 So.Cal.L.Rev. at p. 949.)
The courts of other jurisdictions have had occasion to address the constitutionality of similar provisions. In Arneson v. Olson, supra, 270 N.W.2d 125, 137, the North Dakota Supreme Court unanimously invalidated a statute that effectively abolished the collateral source rule in medical malpractice cases. The court found that there was no "'close correspondence between [the] statutory classification and [the] legislative goals'" (Id., at pp. 133, 137), and noted that the provision gave the tortfeasor "the benefit of insurance privately purchased by or for the tort victim ...." (Id., at p. 128.)
Similarly, in Carson v. Maurer, supra, 424 A.2d at pages 835-836, the New Hampshire Supreme Court unanimously overturned a kindred provision, [38 Cal.3d 178] reasoning that it "arbitrarily and unreasonably discriminate[d] in favor of the class of health care providers." And, in Graley v. Satayatham, supra, 343 N.E.2d at page 836, the court struck down a requirement that collateral benefits be listed in medical malpractice complaints, reasoning that it unconstitutionally discriminated against medical malpractice victims.
Some jurisdictions have upheld similar provisions. (See Eastin v. Broomfield (1977) 116 Ariz. 576 [570 P.2d 744, 751-753]; Pinillos v. Cedars of Lebanon Hospital Corp. (Fla. 1981) 403 So.2d 365, 367-368; Rudolph v. Iowa Methodist Medical Ctr. (Iowa 1980) 293 N.W.2d 550, 552-560.) Two of these decisions were made by sharply divided courts. (See Pinillos, supra, 403 So.2d at pp. 369-371 (dis. opn. of Sundberg, C. J.); Rudolph, supra, 293 N.W.2d at pp. 561-568 (dis. opn. of Reynoldson, C. J.).) Moreover, the decisions reflect a highly deferential approach that is not consistent with the California courts' rigorous application of the rational relationship test to classifications affecting tort victims. (See, e.g., Brown v. Merlo, supra, 8 Cal.3d 855; Cooper v. Bray, supra, 21 Cal.3d 841; Monroe v. Monroe (1979) 90 Cal.App.3d 388 [153 Cal.Rptr. 384]; Ayer v. Boyle (1974) 37 Cal.App.3d 822 [112 Cal.Rptr. 636].)
In conclusion, section 3333.1 permits negligent healthcare providers and their insurers to reap the benefits of their victims' foresight in obtaining insurance. This departure from the general rule prohibiting the deduction of collateral source benefits from a judgment is not rationally related to any legitimate state purpose. Hence, section 3333.1 should be declared unconstitutional.
Woods, J., concurred.
The well-reasoned dissent of the Chief Justice reaches a conclusion consistent with the duty of a democratic society to protect malpractice victims and to refrain from creating specially favored economic insulation for those who commit malpractice.
I part company with the Chief Justice only in regard to the equal protection test employed. The case before us is a paradigm demonstrating the impracticality of either the strict scrutiny or the rational relationship test. My colleagues persist in denying the existence of an intermediate test, and cling to the inflexible two-tier rule with a tenacity that suggests it originated with the Delphic oracle. Yet an intermediate test of equal protection has [38 Cal.3d 179] received frequent approval from many reputable sources. (See the numerous authorities cited in my separate opinion in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 595-603 [150 Cal.Rptr. 435, 586 P.2d 916].)
Now an intermediate test has been adopted by the Supreme Court of New Hampshire in one of the most persuasive opinions in the country invalidating legislative provisions comparable to MICRA in California. In Carson v. Maurer (1980) 120 N.H. 925 [424 A.2d 825, 831, 12 A.L.R.4th 1], the court held that in determining the validity of MICRA-type legislation, "the test is whether the challenged classifications are reasonable and have a fair and substantial relation to the object of the legislation. [Citations.] Whether the malpractice statute can be justified as a reasonable measure in furtherance of the public interest depends upon whether the restriction of private rights sought to be imposed is not so serious that it outweighs the benefits sought to be conferred upon the general public."
The Supreme Court of New Hampshire concluded that the act "arbitrarily and unreasonably discriminates in favor of the class of health care providers. Although the statute may promote the legislative objective of containing health care costs, the potential cost to the general public and the actual cost to many medical malpractice plaintiffs is simply too high." (Id. at p. 836.)
Once again we have an opportunity to employ a test carefully crafted to avoid the rigid extremes of the anachronistic two-tier test of equal protection. As I wrote in Hawkins, supra, 22 Cal.3d at page 595, "the ultimate acceptance of an intermediate test is foreordained in Supreme Court opinions: the question is not whether, but when, the third test will become standard. I regret that our court has failed to forthrightly assume leadership among the states on this important question of constitutional law."
FN 1. Plaintiff did not claim that the heart attack would reduce his earning capacity during his lifetime.
FN 2. Plaintiff had anticipated the possible application of sections 3333.2 and 3333.1 before trial and had requested the court to declare the statutes unconstitutional at that time. After full briefing, the court rejected the constitutional attack. The court also ruled at that time that in order to avoid possible confusion of the jury, it would not inform them of the $250,000 limit and thatsince the amounts of the collateral source benefits were not disputedit would simply reduce the verdict by such benefits; neither party objected to the court's decision to handle the matter in this fashion.
FN 3. Section 602 provides in relevant part: "Challenges for cause may be taken on one or more of the following grounds: ... (4) Standing in the relation of ... master and servant ... or principal and agent, or debtor and creditor, to either party .... A depositor of a bank ... shall not be deemed a creditor of such bank ... for the purpose of this subsection solely by reason of his being such a depositor ... ... (6) Interest on the part of the juror in the event of the action, or in the main question involved in the action, except his interest as a member or citizen or taxpayer of a county, city and county, incorporated city or town, or other political subdivision of a county, or municipal water district."
As the above quotation demonstrates, section 602 by its terms establishes that two types of relationships(1) the relationship of a bank depositor to a bank and (2) the relationship of a taxpayer to a governmental entitydo not justify a challenge for cause. The statute does not, however, state whether the designated exceptions are exclusive or illustrative.
FN 4. The relevant instruction read in full: "It is the duty of one who undertakes to perform the service of a trained or graduate nurse to have the knowledge and skill ordinarily possessed, and to exercise the care and skill ordinarily used in like cases, by trained and skilled members of the nursing profession practicing their profession in the same or similar locality and under similar circumstances. Failure to fulfill either of these duties is negligence. I instruct you that the standard of care required of a nurse practitioner is that of a physician and surgeon duly licensed to practice medicine in the state of California when the nurse practitioner is examining a patient or making a diagnosis."
The initial paragraph of this instruction tracks BAJI No. 6.25; the second paragraph was an added instruction given at plaintiff's request.
FN 5. Section 2725 currently provides in relevant part: "In amending this section at the 1973-74 session, the Legislature recognizes that nursing is a dynamic field, the practice of which is continually evolving to include more sophisticated patient care activities. It is the intent of the Legislature in amending this section at the 1973-74 session to provide clear legal authority for functions and procedures which have common acceptance and usage. It is the legislative intent also to recognize the existence of overlapping functions between physicians and registered nurses and to permit additional sharing of functions within organized health care systems which provide for collaboration between physicians and registered nurses. ... The practice of nursing within the meaning of this chapter means those functions, including basic health care, which help people cope with difficulties in daily living which are associated with their actual or potential health or illness problems or the treatment thereof which require a substantial amount of scientific knowledge or technical skill, and includes all of the following: (a) Direct and indirect patient care services that insure the safety, comfort, personal hygiene, and protection of patients; and the performance of disease prevention and restorative measures. (b) Direct and indirect patient care services, including, but not limited to, the administration of medications and therapeutic agents, necessary to implement a treatment, disease prevention, or rehabilitative regimen ordered by and within the scope of licensure of a physician ... (c) The performance of skin tests, immunization techniques, and the withdrawal of human blood from veins and arteries. (d) Observation of signs and symptoms of illness, reactions to treatment, general behavior, or general physical condition, and (1) determination of whether such signs, symptoms, reactions, behavior, or general appearance exhibit abnormal characteristics; and (2) implementation, based on observed abnormalities, of appropriate reporting, or referral, or standardized procedures, or changes in treatment regimen in accordance with standardized procedures, or the initiation of emergency procedures."
FN 6. In 1977, the Legislature adopted legislation specifically related to "nurse practitioners," providing that a "nurse practitioner" must be both a registered nurse and also meet the standards for nurse practitioner established by the Board of Registered Nursing. (See Bus. & Prof. Code, § 2834 et seq.) The evidence in this case established that Nurse Welch had been certified as both a registered nurse and a "family nurse practitioner."
FN 7. The medical experts on both sides agreed that the major infarction probably occurred about nine hours after Dr. Redding's examination. While Dr. Swan did indicate that the chances of preventing or minimizing injury are improved by the earliest possible detection of an impending attack, he also testified that assuming plaintiff were still in the preinfarctive stage at the time of Dr. Redding's examinationan assumption shared by the defense expertsif an EKG had been performed at that time "the same happy outcome could have happened that we projected for the 4:15 intervention [i.e., diagnosis and treatment at the time of Nurse Welch's examination]."
Defendant never suggested to the jury that its verdict should be affected by whether it found only Dr. Redding, and not Nurse Welch, to have been negligent. Its position was simply that in light of the symptoms described and exhibited by plaintiff at the time of the examinations, neither Nurse Welch nor Dr. Redding was negligent in failing to order an EKG, and that, in any event, the heart attack could not have been prevented even if an EKG had been performed at either time.
FN 8. The instruction read: "There may be more than one proximate cause of an injury. When negligent conduct of two or more persons contributes concurrently as proximate causes of an injury, the conduct of each of said persons is a proximate cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury."
FN 9. For example, just before reading the instructions on causation, the court read the following instructions: "A plaintiff who was injured as a proximate result of some negligent conduct on the part of a defendant is entitled to recover compensation for such injury from that defendant. Thus, the plaintiff is entitled to a verdict in this case if you find, in accordance with my instructions: 1. That defendant was negligent; and 2. That such negligence was a proximate cause of injury to the plaintiff.
"In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues: 1. The negligence of the defendant. 2. That such negligence was the proximate cause of injury to plaintiff. 3. The nature and extent of plaintiff's damages. ..." (Italics added.)
FN 10. The comments in the Restatement state: "d. Loss or impairment of earning capacity for the future. The extent of future harm to the earning capacity of the injured person is measured by the difference, viewed as of the time of trial, between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm. This difference is the resultant derived from reducing to present value the anticipated losses of earnings during the expected working period that the plaintiff would have had during the remainder of his prospective life, but for the defendant's act. (On the determination of the prospective length of life, see Comment e.) Accordingly, the trier of fact must ascertain, as nearly as can be done in advance, the difference between the earnings that the plaintiff would or could have received during his life expectancy but for the harm and the earnings that he will probably be able to receive during the period of his life expectancy as now determined. ... e. The determination of length of life. In the case of permanent injuries or injuries causing death, it is necessary, in order to ascertain the damages, to determine the expectancy of the injured person's life at the time of the tort. ... If the person harmed is alive at the time of trial, ordinarily the opinion of experts on the probable diminution of the plaintiff's life expectancy as a result of the tort is admissible as bearing upon the impairment of future earning capacity. ..." (Ibid.)
FN 11. Section 667.7 provides in relevant part: "(a) In any action for injury or damages against a provider of health care services, a superior court shall, at the request of either party, enter a judgment ordering that money damages or its equivalent for future damages of the judgment creditor be paid in whole or in part by periodic payments rather than by a lump-sum payment if the award equals or exceeds fifty thousand dollars ($50,000) in future damages. In entering a judgment ordering the payment of future damages by periodic payments, the court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages. As a condition to authorizing periodic payments of future damages, the court shall require the judgment debtor who is not adequately insured to post security adequate to assure full payment of such damages awarded by the judgment. Upon termination of periodic payments of future damages, the court shall order the return of this security, or so much as remains, to the judgment debtor. (b)(1) The judgment ordering the payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Such payments shall only be subject to modification in the event of the death of the judgment creditor. (2) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in paragraph (1), the court shall find the judgment debtor in contempt of court and, in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by the failure to make such periodic payments, including court costs and attorney's fees. (c) However, money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death. In such cases the court which rendered the original judgment, may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this subdivision. (d) Following the occurrence or expiration of all obligations specified in the periodic payment judgment, any obligation of the judgment debtor to make further payments shall cease and any security given, pursuant to subdivision (a) shall revert to the judgment debtor. ... (f) It is the intent of the legislature in enacting this section to authorize the entry of judgments in malpractice actions against health care providers which provide for the payment of future damages through periodic payments rather than lump-sum payments. By authorizing periodic payment judgments, it is the further intent of the legislature that the courts will utilize such judgments to provide compensation sufficient to meet the needs of an injured plaintiff and those persons who are dependent on the plaintiff for whatever period is necessary while eliminating the potential windfall from a lump-sum recovery which was intended to provide for the care of an injured plaintiff over an extended period who then dies shortly after the judgment is paid, leaving the balance of the judgment award to persons and purposes for which it was not intended. It is also the intent of the Legislature that all elements of the periodic payment program be specified with certainty in the judgment ordering such payments and that the judgment not be subject to modification at some future time which might alter the specifications of the original judgment."
FN 12. As originally introduced, the bill which ultimately became section 667.7 provided that a trial court "may," and at the request of either party "shall," provide for periodic payments. (Assem. Bill No. 1 (1975-1976 Second Ex. Sess.) June 6, 1975, § 26.) Thereafter, the bill was amended to provide simply that a court "may" provide for periodic payments. (Assem. Amend. to Assem. Bill No. 1 (1975-1976 Second Ex. Sess.) June 12, 1975, § 26.) Before enactment, however, the bill was again amended to delete the permissive "may" language and to insert the mandatory "shall" language that appears in the current statute. (Sen. Amend. to Assem. Bill No. 1 (1975-1976 Second Ex. Sess.) June 25, 1975, § 26.)
FN 13. Section 3333.2 provides in relevant part: "(a) In any [medical malpractice] action ... the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage. (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000)."
FN 14. One feature of the periodic payment provision upheld in American Bankterminating payments for future damages, other than damages for loss of earnings, on the plaintiff's deathclearly does operate to reduce the amount of damages ultimately recovered.
FN 15. The "general damage/special damage" distinction drawn by section 48a is similar to the "noneconomic damage/economic damage" distinction established by section 3333.2. Section 48a defines "general damages" as "damages for loss of reputation, shame, mortification and hurt feelings" and defines "special damages" as "all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other."
FN 16. Justice Traynor, in a dissenting opinion in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 511 [15 Cal.Rptr. 161, 364 P.2d 337], observed: "There has been forceful criticism of the rationale for awarding damages for pain and suffering in negligence cases. (Morris, Liability for Pain and Suffering, 59 Columb.L.Rev. 476; Plant, Damages for Pain and Suffering, 19 Ohio L.J. 200; Jaffe, Damages for Personal Injury: The Impact of Insurance, 18 Law & Contemp. Probs. 219; Zelermyer, Damages for Pain and Suffering, 6 Syracuse L.Rev. 27.) Such damages originated under primitive law as a means of punishing wrongdoers and assuaging the feelings of those who had been wronged. [Citations.] They become increasingly anomalous as emphasis shifts in a mechanized society from ad hoc punishment to orderly distribution of losses through insurance and the price of goods or of transportation. Ultimately such losses are borne by a public free of fault as part of the price for the benefits of mechanization. [Citations.] Nonetheless, this state has long recognized pain and suffering as elements of damages in negligence cases [citations]; any change in this regard must await reexamination of the problem by the Legislature." (Italics added.)
FN 17. In its comprehensive report on the medical malpractice insurance crisis, the American Bar Association's Commission on Medical Professional Liability recommended that no dollar limit be imposed on recoveries for economic loss, but expressly "[took] no position on whether it is appropriate to place a ceiling on the recovery of non-economic loss." (Rep. of Com. on Medical Professional Liability (1977) 102 ABA Ann.Rep. 786, 849.) The commission explained its conclusions as follows: "When liability has been demonstrated, the first priority of the tort system is to compensate the injured party for the economic loss he has suffered. While it is legitimate in the Commission's view to deduct payments to or for the benefit of the plaintiff by collateral sources, it is unconscionable to preclude a plaintiff, by an arbitrary ceiling on recovery, from recovering all his economic damages, even though some lowering of medical malpractice premiums may result from the enactment of such a ceiling. The Commission has taken no position, however, on whether it is appropriate to place a statutory ceiling on the recovery of non-economic loss. The arguments in favor of limiting non-economic loss are that a ceiling on general damages would contain jury awards within realistic limits, reduce the exposure of insurers (which reductions could be reflected in lowered premiums), lead to more settlements and less litigation, and enable insurance carriers to set more accurate rates because of the greater predictability of the size of judgments. The arguments against limiting non-economic loss are that medical malpractice should not be distinguished from other areas of professional malpractice or personal injury actions which have no ceiling on general damages, that general damages are as real to the plaintiff as economic loss, that a wrongdoer should pay for all the losses he has caused, including pain and suffering, and that the general damages portion of an award provides a fund out of which the plaintiff's attorney's fees can be deducted without leaving the plaintiff economically undercompensated. In addition, it is argued that no immediate cost or premium savings will be generated by a ceiling on non-economic losses because questions regarding the constitutionality of such statutes would have to be finally resolved before the insurance companies would reflect any potential savings in their rates; and because the ceiling might prove to be the norm." (Ibid.)
FN 18. Indeed, even if due process principles required some "quid pro quo" to support the statute, it would be difficult to say that the preservation of a viable medical malpractice insurance industry in this state was not an adequate benefit for the detriment the legislation imposes on malpractice plaintiffs. As the United States Supreme Court observed in upholding the provisions of the Price-Anderson Act which placed a dollar limit on total liability that would be incurred by a defendant in the event of a nuclear accident: "'It should be emphasized ... that it is collecting a judgment, not filing a lawsuit, that counts. ... [A] defendant with theoretically 'unlimited' liability may be unable to pay a judgment once obtained.'" (Duke Power Co. v. Carolina Env. Study Group (1978) 438 U.S. 59, 89-90 [57 L.Ed.2d 595, 621, 98 S.Ct. 2620] [quoting from legislative history].)
Although we do not suggest that the Legislature felt that section 3333.2 aloneor for that matter any other single provision of MICRAwas essential to the survival of the medical malpractice insurance system, there is surely nothing in the due process clause which prevents a legislature from making a number of statutory changes which, in combination, provide the requisite benefit to justify the enactment.
FN 19. The one exception is Carson v. Maurer, supra, 424 A.2d 825, in which the New Hampshire court struck down a provision which imposed a limit only on noneconomic damages, a statute apparently modeled on section 3333.2. As we noted in Roa, supra (37 Cal.3d at p. 932, fn. 9), the Carson courtin invalidating a variety of provisions of its medical malpractice legislationapplied an "intermediate scrutiny" standard of review that is inconsistent with the standard applicable in this state.
FN 20. Section 3333.1 provides in relevant part: "(a) In the event the defendant so elects, in an action for personal injury against a health care provider based upon professional negligence, he may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the personal injury pursuant to the United States Social Security Act, any state or federal income disability or worker's compensation act, any health, sickness or income-disability insurance, accident insurance that provides health benefits or income-disability coverage, and any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure his right to any insurance benefits concerning which the defendant has introduced evidence. (b) No source of collateral benefits introduced pursuant to subdivision (a) shall recover any amount against the plaintiff nor shall it be subrogated to the rights of the plaintiff against a defendant."
FN 21. As we noted in Barme (37 Cal.3d at p. 179, fn. 5): "Earlier drafts of section 3333.1, subdivision (a) required the trier of fact to deduct such collateral source benefits in computing damages, butas enactedsubdivision (a) simply provides for the admission of evidence of such benefits, apparently leaving to the trier of fact the decision as to how such evidence should affect the assessment of damages."
In this case, it is not clear from the record whether the parties and the trial court recognized that section 3333.1, subdivision (a) simply authorizes the reduction of damages on the basis of collateral source benefits, but does not specifically mandate such a reduction. As noted earlier (see p. 146, fn. 2, ante), after rejecting plaintiff's pretrial constitutional challenge to this statute, the trial court indicated that in order to avoid any confusion of the jury and because the amount of collateral source benefits was not in dispute, the evidence would not be admitted at trial and the court would simply reduce the jury award by the amount of such benefits. Plaintiff did not object to this procedure and raises no claim with respect to this aspect of the court's ruling on appeal.
Plaintiff does raise a minor contention, however, which is somewhat related to this matter. In awarding damages applicable to plaintiff's future medical expenses, the trial court indicated that defendant was to pay the first $63,000 of such expenses that were not covered by employer-provided medical insurance. Plaintiff, pointing out that he may not be covered by medical insurance in the future, apparently objects to any reduction of future damages on the basis of potential future collateral source benefits. Under the terms of the trial court's judgment, however, defendant's liability for such damages will be postponed only if plaintiff does in fact receive such collateral benefits; thus, it is difficult to see how plaintiff has any cause to complain about this aspect of the award. Indeed, if anything, the trial court may have given plaintiff more than he was entitled to, since it did not reduce the jury's $63,000 award by the collateral source benefits plaintiff was likely to receive, but instead imposed a continuing liability on defendant to pay up to a total of $63,000 for any noncovered medical expenses that plaintiff may incur in the future as a result of the injury. Defendant has not objected to this portion of the judgment.
FN 22. See, e.g., 2 Harper and James, The Law of Torts (1968 Supp.) section 25.22, at page 52; Fleming, The Collateral Source Rule and Loss Allocation in Tort Law (1966) 54 Cal.L.Rev. 1478; James, Social Insurance and Tort Liability: The Problem of Alternative Remedies (1952) 27 N.Y.U.L.Rev. 537; Schwartz, The Collateral Source Rule (1961) 41 B.U.L.Rev. 348; West, The Collateral Source Rule Sans Subrogation: A Plaintiff's Windfall (1963) 16 Okla.L.Rev. 395; Note, Unreason in the Law of Damages: The Collateral Source Rule (1964) 77 Harv.L.Rev. 741.
FN 23. The majority of out-of-state cases that have passed on the issue have upheld the validity of provisions modifying the collateral source rule in medical malpractice cases. (See, e.g., Eastin v. Broomfield (1977) 116 Ariz. 576 [570 P.2d 744, 751-753]; Rudolph v. Iowa Methodist Medical Ctr. (Iowa 1980) 293 N.W.2d 550, 557-560; Pinillos v. Cedars of Lebanon Hospital Corp. (Fla. 1981) 403 So.2d 365, 367-368. Contra, Carson v. Maurer, supra, 424 A.2d 825, 835-836.)
FN 1. Henceforth, all statutory references are to the Civil Code unless otherwise specified.
FN 2. The majority attempt to distinguish Carson on the grounds that the New Hampshire Supreme Court applied an "intermediate" form of equal protection scrutiny, which is not appropriate under the California Constitution. (See maj. opn., ante, at p. 161, fn. 19.) However, the Carson court's conclusion that it was "unreasonable" to require the most severely injured victims of medical negligence to support the medical care industry is no less relevant under a lower form of scrutiny. The Carson court found no rational basis for the fixed limit.
FN 3. The majority erroneously cite a second case, Prendergast v. Nelson (1977) 199 Neb. 97 [256 N.W.2d 657], as upholding a damage limit. In Prendergast a three-justice plurality of the Nebraska Supreme Court expressed their view that a $500,000 limit on damages should be upheld. (Id., at p. 669.) An equal number contended that the limit was unconstitutional. (Id., at pp. 675-677 (conc. & dis. opn. of White, J.), (dis. opn. of McCown, J.), (dis. opn. of Boslaugh, J.).) The seventh justice expressed no opinion on the merits of the constitutional challenge, but dissented from the result and pointed out that the plurality opinion did not decide the constitutional questions. (Ibid. (dis. opn. of Clinton, J.).)
In short, four out of seven justices concluded either that the limit was unconstitutional or that the question of its constitutionality was not justiciable.
FN 4. For the relevant text of section 3333.1, see the majority opinion, ante, at page 164, footnote 20.
Crowded Mall Disorder
Colucci v. T-Mobile USA, Inc.
Modified and Certified for Publication
STEPHEN COLUCCI, Plaintiff and Respondent,
T-MOBILE USA, INC., Defendant and Appellant.
CA Civ. Code Sec. 47(c)
DIVISION 1. PERSONS [38 - 86] ( Heading of Division 1 amended by Stats. 1988, Ch. 160, Sec. 12. )
PART 2. PERSONAL RIGHTS [43 - 53.7] ( Part 2 enacted 1872. )
CA Aseembly Bill No. 673
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