Not Reported in Cal.Rptr.3d, 2007 WL 1978889 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2007 WL 1978889 (Cal.App. 2 Dist.))
Only the Westlaw citation is currently available.
California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
Court of Appeal, Second District, Division 7, California.
Rosemary HAGGINS, Plaintiff and Appellant,
COUNTY OF LOS ANGELES et al., Defendants and Respondents.
(Los Angeles County Super. Ct. No. BC326342).
July 10, 2007.
APPEAL from a judgment of the Superior Court of Los Angeles County. Gregory W. Alarcon, Judge. Reversed with directions.
Bleau Fox, Thomas P. Bleau and James N. Kahn, for Plaintiff and Appellant.
Hausman & Sosa, Jeffrey M. Hausman, Larry D. Stratton, Vincent C. McGowan; Greines, Martin, Stein & Richland, Martin Stein and Marc J. Poster, for Defendants and Respondents.
*1 Plaintiff Rosemary Haggins appeals from the judgment following the trial court's order sustaining defendants' demurrer to her complaint for wrongful discharge without leave to amend. We reverse the judgment and remand the cause to the superior court with directions to afford Haggins an opportunity to amend her complaint to show her claim of wrongful discharge is not barred by the United States Supreme Court's decision in Garcetti v. Ceballos.FN1
FN1. Garcetti v. Ceballos (2006) --- U.S. ----, 126 S.Ct. 1951.
FACTS AND PROCEEDINGS BELOW
Haggins alleges she was discharged from her position as the Chief Nursing Officer at the Martin Luther King, Jr.-Charles R. Drew Medical Center (“King-Drew”) after complaining to her superiors about the lack of adequate staffing and training of nurses at King-Drew. She brought this action against the County of Los Angeles which owns and operates King-Drew and several county officials claiming her termination was in retaliation for her exercise of her right to freedom of speech under the First Amendment to the United States Constitution.
The defendants demurred to Haggins' second amended complaint on a variety of grounds and the trial court sustained the demurrer without leave to amend
Haggins' opening brief on appeal challenged the alleged defects in her complaint raised by the defendants' demurrer. The defendants did not mention any of these alleged defects in their respondents' brief, hence we regard them as abandoned.FN2
FN2. Platner v. Vincent (1921) 187 Cal. 443, 447.
In response to Haggins' appeal defendants rely solely on the United States Supreme Court's opinion in Garcetti v. Ceballos handed down after the trial court sustained the demurrer to Haggins' complaint. In Garcetti the court held when public employees make statements pursuant to their official duties their speech is not protected by the First Amendment.FN3
FN3. Garcetti v. Ceballos, supra, 126 S.Ct. at page 1960.
Haggins' complaint alleges the following facts leading up to her discharge.
“Beginning in the Spring of 2003, plaintiff made written complaints via memoranda, e-mail and verbal complaints to defendant May [the Chief Executive Officer of King-Drew] as well as verbal complaints to defendant Garthwaite [Director of the County's Department of Health Services] regarding critical nursing shortages at [King-Drew].... In her complaints, plaintiff told May and Garthwaite that the level of staffing for nurses at [King-Drew] was at a critical low and that qualified nurses had to be hired to avoid dangers to patient safety and possible deaths if additional qualified nurses were not hired.... Plaintiff prepared a plan of action and proposed strategy for hiring more nurses and training the staff currently employed at [King-Drew] to handle the high trauma patients being admitted to [King-Drew]. Plaintiff presented this written plan to May who ignored plaintiff's requests for more nurses and plans for correction of problems occurring with the staff at [King-Drew].
“In June 2003, at a lunch meeting where all the Chief Nursing Officer[s] from each of the County hospitals took Garthwaite to lunch, plaintiff complained about the nursing shortages and dangers to patient care resulting from same to Garthwaite.
*2 “Again, in July 2003, at a one-on-one meeting between Garthwaite and plaintiff, plaintiff complained about nursing shortages and patient safety issues to Garthwaite and gave Garthwaite the percentages of deficits in staffing. (Italics added.)
“In the fall of 2003, [King-Drew] came under scrutiny from the media and local politicians due to several patient deaths associated with inadequate and incomplete nursing, the exact danger about which plaintiff had warned her supervisors in e-mails and written correspondence sent beginning in the Spring of 2003.” (Italics added.)
Haggins then alleges: “In retaliation for her complaints about the inadequate staffing and her criticism of the management of [King-Drew] by the individual defendants to whom she reported, the individual defendants retaliated against plaintiff by blaming her for the problems at [King-Drew] as well as the patient deaths. These acts of retaliation against plaintiff resulted in plaintiff being suspended without pay, then ultimately discharged from employment with the County.” (Italics added.)
Haggins alleges defendants terminated her employment because she “blew the whistle” on the conditions at King-Drew to County officials including May and Garthwaite. In doing so, defendants violated her right to freedom of speech as guaranteed by the First and Fourteenth Amendments.
Prior to the United States Supreme Court's decision in Garcetti, Haggins appears to have had a viable cause of action for wrongful discharge in violation of her First Amendment right to free speech.FN4 After Garcetti, her ability to obtain relief on this basis is not so clear.
FN4. See Rookhard v. Health & Hosps. Corp. (2d Cir.1983) 710 F.2d 41, 47 (finding allegations of corrupt and wasteful practices at a municipal hospital made by the director of nursing were afforded First Amendment protection when, “as Director of Nursing, it was her duty to do as she did”).
In Garcetti v. Ceballos, the plaintiff Ceballos, a calendar deputy in the Los Angeles District Attorney's office, brought an action under the federal civil rights act against Garcetti, the District Attorney, and others for a series of employment actions, short of discharge, which Ceballos alleged were in retaliation for an internal memorandum he wrote recommending the dismissal of an ongoing prosecution. It was undisputed Ceballos prepared the memorandum pursuant to his duties as a prosecutor.
In his complaint Ceballos claimed defendants' retaliating against him on the basis of his memorandum violated his right to free speech under the First and Fourteenth Amendments. The Supreme Court disagreed. “[W]hen public employees make statements pursuant to their official duties,” the court held, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” FN5 The “controlling factor” in Ceballos' case, the court explained, “is that his expressions were made pursuant to his duties as a calendar deputy.... That consideration-the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his superior about how best to proceed with the pending case-distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline.” FN6
FN5. Garcetti v. Ceballos, supra, 126 S.Ct. at page 1960.
FN6. Garcetti v. Ceballos, supra, 126 S.Ct. at pages 1959-1960.
*3 Although it rejected “the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties” the court observed there is a “powerful network of legislative enactments-such as whistle-blower protection laws and labor codes-available to those who seek to expose wrongdoing.” FN7 As examples of whistle-blower protections for government employees in California the court cited Government Code section 8547.8, applicable to state employees, and Labor Code section 1102.5, applicable to county employees.FN8
FN7. Garcetti v. Ceballos, supra, 126 S.Ct. at page 1962.
FN8. Garcetti v. Ceballos, supra, 126 S.Ct. at page 1962.
Turning to the case before us, Haggins' complaint does not specifically allege the statements she made to county officials were made pursuant to her official duties as Chief Nursing Officer at King-Drew. It would not be unreasonable, however, to draw such an inference from the facts she does allege. We note especially Haggins' statement she had a one-on-one meeting with Garthwaite, the County's Director of Health Services, in which she “complained about nursing shortages and patient safety issues” at King-Drew and her statement Garthwaite and May, to whom she also complained, were the individuals “to whom she reported.”
Nevertheless, in light of the intervening decision in Garcetti we believe Haggins should have an opportunity to amend her complaint, if she can, to show her claim of wrongful discharge is not barred by Garcetti or to plead her claim under a different legal theory.
The judgment is reversed and the cause is remanded to the trial court with directions to vacate its order sustaining defendants' demurrer without leave to amend and to issue a new order sustaining the demurrer with leave to amend within the time permitted by law and consistent with the views expressed in this opinion. Each party to bear its own costs on appeal.
We concur: PERLUSS, P.J., and WOODS, J.
Cal.App. 2 Dist.,2007.
Haggins v. County of Los Angeles
Not Reported in Cal.Rptr.3d, 2007 WL 1978889 (Cal.App. 2 Dist.)
END OF DOCUMENT
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