Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , 5t h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brian P. Walter, Bar No. 171429 bwalter @lcwlegal.com I. Emanuela Tala, Bar No. 292141 etala@]cwlegal.com LIEBERT CASSIDY WHITMORE A Professional Law Corporation 6033 West Century Boulevard, 5th Floor Los Angeles, California 90045 Telephone: ~~ 310.981.2000 Facsimile: 310.337.0837 Attorneys for Defendants ELECTRONICALLY FILED 7/6/2020 9:53 PM Kern County Superior Court By Kasey Griffith, Deputy KERN MEDICAL SURGERY CENTER, LLC; KERN MEDICAL CENTER FOUNDATION; and MARIE RUFFIN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF KERN - METROPOLITAN DIVISION MARIA ELENA LOPEZ-RODRIGUEZ, Plaintiff, Vv. KERN MEDICAL SURGERY CENTER, LLC (a California Limited Liability Company); KERN MEDICAL CENTER FOUNDATION (a California Corporation); COUNTY OF KERN (a Government Entity); MARIE RUFFIN (an Individual); and DOES 1 - 100, inclusive, Defendants. Case No.: BCV-20-100510 [ASSIGNED FOR ALL PURPOSES TO HON. STEPHEN D. SCHUETT, DEPT. 10] Complaint Filed: February 20, 2020 DEFENDANT KERN MEDICAL CENTER FOUNDATION’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF I. EMANUELA TALA IN SUPPORT THEREOF [Filed concurrently with Motion to Strike, Request for Judicial Notice, and [Proposed] Order] Date: September 11, 2020 Time: 8:30 a.m. Dept.: Dept. 10 (*Exempt from filing fees pursuant to Gov. Code, § 6103.) TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 11, 2020, at 8:30 a.m., or as soon thereafter as the matter may be heard in Department 10 of the above-entitled Court, located at 1 9312636.3 KE045-025 DEMURRER 1 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1415 Truxtun Avenue, Bakersfield, California 93301, Defendant Kern Medical Center Foundation (“the Foundation”) will and hereby does demur to Plaintiff Maria-Elena Lopez- Rodriguez’s (“Plaintiff”) Complaint for Damages (“Complaint”), and seeks dismissal of the Complaint without leave to amend. The Foundation demurs to Plaintiff’s Complaint pursuant to Code of Civil Procedure section 430.10, subdivisions (a), (e), and (f), and on the grounds set forth in the demurrer below. The demurrer is based on this Notice of Demurrer and Demurrer, the attached Memorandum of Points and Authorities, the Declaration of I. Emanuela Tala, all documents, papers and records on file herein, and any such further evidence as may be presented at or before the hearing on the demurrer. Pursuant to Code of Civil Procedure section 430.41, counsel for the Foundation sent counsel for Plaintiff a letter to initiate the meet and confer process on June 29, 2020. (Declaration of I. Emanuela Tala, 3.) As of the date of the filing of this motion, counsel for Plaintiff has not responded to counsel for the Foundation’s June 29, 2020 letter. (Id., {4.) Dated: July 6, 2020 LIEBERT CASSIDY WHITMORE By: /s/ Emanuela Tala Brian P. Walter I. Emanuela Tala Attorneys for Defendants KERN MEDICAL SURGERY CENTER, LLC; KERN MEDICAL CENTER FOUNDATION; and MARIE RUFFIN 2 DEMURRER 2 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO COMPLAINT Defendant Kern Medical Center Foundation brings this demurrer to Plaintiff Maria-Elena Lopez-Rodriguez’s (“Plaintiff”) Complaint for Damages (“Complaint”) under Code of Civil Procedure section 430.10 as follows: DEMURRER TO THE FIRST THROUGH SIXTH CAUSES OF ACTION 1. The Court has no jurisdiction over the First through Sixth Causes of Action because Plaintiff has failed to exhaust her administrative remedies by filing a timely complaint with the Department of Fair Employment and Housing (“DFEH”) that named the Foundation as a respondent. (Code Civ. Proc., § 430.10, subd. (a); Gov. Code, § 12960; (Balloon v. Superior Court (1995) 39 Cal.App.4th 1116, 1120; Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1513.) DEMURRER TO THE FIRST THROUGH NINTH CAUSES OF ACTION 2. The First through Ninth Causes of Action do not state facts sufficient to constitute a cause of action because no employment relationship exists or existed between the Foundation and the Plaintiff. (Code Civ. Proc., § 430.10, subd. (e).) DEMURRER TO THE FIRST THROUGH FIFTH CAUSES OF ACTION 3. The First through Fifth Causes of Action are uncertain because Plaintiff fails to identify a specific mental or physical condition that she has that limits a major life activity. (Code Civ. Proc., § 430.10, subd. (f).) DEMURRER TO THE FIRST CAUSE OF ACTION (Discrimination on the Basis of Disability in Violation of the Fair Employment and Housing Act (“FEHA”)) 4. The First Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff does not allege she suffered from a “disability” as the term is defined under the FEHA, that she was qualified to do her job, or that she was subjected to an adverse employment action because of her disability. (Code Civ. Proc., § 430.10, subd. (e); Nealy v. City of Santa Monica (2015) 234 Cal. App.4th 359, 378.) 5. The First Cause of Action does not state facts sufficient to constitute a cause of 3 DEMURRER 3 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action because Plaintiff fails to identify a specific mental or physical condition that she has that limits a major life activity. (Code Civ. Proc., § 430.10, subd. (e).) 6. The First Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff combines four separate causes of action into a single claim for disability discrimination. (Code Civ. Proc., § 430.10, subd. (e); Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 371) DEMURRER TO THE SECOND CAUSE OF ACTION (Harassment on the Basis of Disability in Violation of the FEHA) Te The Second Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff does not allege that she was subjected to unwanted harassment because of a “disability” as the term is defined under the FEHA, and does no plead conduct that was sufficiently severe or pervasive such that a reasonable person would have considered the work environment to be hostile. (Code Civ. Proc., § 430.10, subd. (e); Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131.) 8. The Second Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff fails to identify a specific mental or physical condition that she has that limits a major life activity. (Code Civ. Proc., § 430.10, subd. (e).) DEMURRER TO THE THIRD CAUSE OF ACTION (Failure to Provide Reasonable Accommodation in Violation of the FEHA) 9. The Third Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff does not allege she suffered from a “disability” as the term is defined under the FEHA, or that she was qualified to perform the essential functions of her position. (Code Civ. Proc., § 430.10, subd. (e); Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.) 10. The Third Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff fails to identify a specific mental or physical condition that she has that limits a major life activity. (Code Civ. Proc., § 430.10, subd. (e). 1" 4 DEMURRER 4 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO THE FOURTH CAUSE OF ACTION (Failure to Engage in the Interactive Process) 11. The Fourth Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff does not allege she suffered from a “disability” as the term is defined under the FEHA, or that she was qualified to perform the essential functions of her position. (Code Civ. Proc., § 430.10, subd. (e).) 12. The Fourth Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff fails to identify a specific mental or physical condition that she has that limits a major life activity. (Code Civ. Proc., § 430.10, subd. (e).) DEMURRER TO THE FIFTH CAUSE OF ACTION (Retaliation for Engaging in a Protected Activity in Violation of the FEHA) 13. The Fifth Cause of Action is uncertain because Plaintiff does not set forth a specific protected activity. (Code Civ. Proc., § 430.10, subd. (f).) DEMURRER TO THE SIXTH CAUSE OF ACTION (Failure to Prevent Discrimination, Harassment and Retaliation in Violation of the FEHA) 14. The Sixth Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff does not allege actionable discrimination, harassment or retaliation. (Code Civ. Proc., § 430.10, subd. (e); Dickson v. Burke Williams, Inc. (2015) 234 Cal. App.4th 1307, 1315-1316.) DEMURRER TO THE TENTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress) 15. The Court has no jurisdiction over the Tenth Cause of Action because it “is precluded by the ‘exclusive remedy’ provision of the Workers’ Compensation Act.” (Code Civ. Proc., § 430.10, subd. (a); Jenkins v. Family Health Program (1989) 214 Cal.App.3d 440, 449.) 16. The Tenth Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff fails to set forth facts to articulate extreme and outrageous conduct by the Foundation. (Code Civ. Proc., § 430.10, subd. (e).) 1" 3 DEMURRER 5 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO THE ELEVENTH CAUSE OF ACTION (Violation of Business and Professions Code § 17200, Et Seq.) 17. The Eleventh Cause of Action does not state facts sufficient to constitute a cause of action because Plaintiff fails to set forth facts to articulate a specific statute or public policy the Foundation is alleged to have violated. The grounds for the Foundation’s demurrer are more fully specified in the accompanying Memorandum of Points and Authorities, which is incorporated herein by reference. Foundation prays that its demurrer is sustained and for further relief as this Court may deem just and proper. Dated: July 6, 2020 By: 9312636.3 KE045-025 LIEBERT CASSIDY WHITMORE /s/ Emanuela Tala Brian P. Walter I. Emanuela Tala Attorneys for Defendants KERN MEDICAL SURGERY CENTER, LLC; KERN MEDICAL CENTER FOUNDATION; and MARIE RUFFIN 6 DEMURRER 6 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Contents 1. INTRODUCTION IL. STATEMENT OF FACTS III. LEGAL STANDARD IV. LEGAL ARGUMENT A. E. TABLE OF CONTENTS THE FIRST THROUGH SIXTH CAUSES OF ACTION MUST BE DISMISSED contineee eee see eee THE FIRST THROUGH NINTH CAUSES OF ACTION MUST BE DISMISSED cous ucussusmsassmnesscuss vnossms assume ous vues sas oss sume ess sameness I. The Foundation Is a Separate and Distinct Legal Entity from Plaintiff's Previous EmplOyer..........cccocevviiniiiniiniiciiniecnieenene 2 No Employment Relationship Exists or Existed between Plaintiff and the Foundation..............cccceeiiiniinniiniciiiceineeneene THE FIRST, SECOND, THIRD AND FOURTH CAUSES OF ACTION MUST BE DISMISSED. causes asuscn su ssusess suis i assis su csnsasssmasssisas THE FIRST CAUSE OF ACTION FOR DISABILITY DISCRIMINATION IN VIOLATION OF THE FEHA MUST BE DISMISS EY ccc cas n cumin su susie ssi ss mssan ou sess sss 5545.00 585555 6008545 A085 55 1. The First Cause of Action Must Be Dismissed because Plaintiff Does Not Allege that She Was Qualified to Do Her Job, or that She Was Subjected to an Adverse Employment Action because of Her Disability .........cccoceeviiriieiiiiniinniiniccneene 2 The First Cause of Action Must Be Dismissed because It Is VI DCBFEAT sous om ssmenmsmmusmmmmssmomm mu s sos sum snonms oss Sos Re oa as sR a. The first cause of action is ambiguous as to the alleged “motivating factor” for the Defendants’ purported. CONBNEL «mamma mr m m mam b. Plaintiff attempts to combine separate causes of action into a single claim for disability discrimination under the FEHA .........cooovveiiiiiiiiiiiiiieeenenes THE SECOND CAUSE OF ACTION FOR HARASSMENT ON THE BASIS OF DISABILITY IN VIOLATION OF THE FEHA MILTST BIE TONS SET eer mss sss sss msm sess sss DEMURRER 9312636.3 KE045-025 g & o Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Plaintiff Does Not Set Forth Facts Showing Conduct that Was Sufficiently Severe or Pervasive ........cocceevvieiiiiieiiiiieiiiie eee 20 2 The Second Cause of Action is Ambiguous as to the Alleged “Motivating Factor” for the Defendants’ Purported CONAUCT ce ra eee eee seas 21 F. THE THIRD CAUSE OF ACTION FOR FAILURE TO ACCOMMODATE MUST BE DISMISSED .uxs sca sssasasssssnsuss uwasw sasanas ssaanss 21 G. THE FOURTH CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS MUST BE ITS IATSEIPTD ress ssmassissssmsessmss mares ss EE ER EEE 22 H. THE FIFTH CAUSE OF ACTION FOR RETALIATION IN VIOLATION OF THE FEHA MUST BE DISMISSED......ccccccccinniiniiiniciiien 22 L THE SIXTH CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION, HARASSMENT, AND RETALIATION IN VIOLATION OF THE FEHA MUST BE DISMISSED......ccccccccinniiniiiniciiien 23 J. THE TENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL (“IIED”) DISTRESS MUST BE DISMISSED... sects see eects sre sete sees sabes 23 K. THE ELEVENTH CAUSE OF ACTION FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION 17200, ET SEQ., MUST BE DISMISSED ......ccccoiiiiiiiiiiiiiiiiiieie c c 25 V. CC ONICTNTSTION usm ssn vores sve so vies 50085 55 403005 RU S48 YS SHERI HPSS FSS HSS 25 8 DEMURRER 8 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases McKenna v. Permanente Medical Group, Inc. 894 F.Supp.2d 1258 (C.D. Cal. Aug. 13, 2012) ...ooimiiiiiieiieeiie cece 23 State Cases Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.Ath 121 «ooo eects sates eae east ee sabe sabe ee sbbe ease anneas 4,20 Balloon v. Superior Court (1995) 39 Cal. APPA T1160 ..ocueiiiiieiieiee cece e e sees aaeeebeebeeeeeeeas 3,14 Berger v. California Ins. Guar. Ass'n (2005) 128 CalAPP-Ath O89... eee eee ete eee sabes test ae sate enna anes 14 Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 CAL APD. LIT srsin.on sown ns so wmns mss. 0.55055085555055.50.25555 55 55055558 55555-50559 0 F853 14 Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal. APP.ALh 1505 ..eiiiiieiiiet eee eee sa ee sabe sarees bee ne ee neeas 3,14 Craig v. City of Los Angeles (1941) 44 CalLAPDP-2A 71 cee ee ete b ae sabes testes tees b ee sbee esse anne 19 Dickson v. Burke Williams, Inc. (2015) 234 Cal. APP-Ath 1307 eee ete sates eeebe eee eeas 5,23 Gelfo v. Lockheed Martin Corp. (2006) 140 Ca A. Slbusansnssmomosmsmmornoncmssmss ss sme s es eS Se Hae 17 Hendy v. Losse (1991) 54 Cal.3d 723... st ee eae e sees ste e shee sabe a sees t ease ee see esas anne 14 Jenkins v. Family Health Program (1989) 214 Cal APP-3A 440 «onic eee testes ete sete e ete eb ee saae enna eens 24 Scotch v. Art Institute of California (2009) 173 Cal APDA DRO curisin.on smn ns 0 mms mss on 25 56.550555085555045.55-05555 05 5553058 5555545 SAVES SORTS 23 Swanson v. Morongo Unified School Dist. (2014) 232 Cal. APP-Ath O54 «eee nees 4,21 Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.Ath T1028 .....oo es ete easter e shee sabe a east ee ss eee seeeaee anne 22 State Statutes Business and Professions Code, SECON 17200 ........ueeeeemeeeieni eee e ee ess re eee ee eee eee 6, 25 Code of Civil Procedure, section 430.10, Subd. (2) ......uvveeeeeieeiiiiiiriiiieeeeeeeeeeiciiereee ee esses eev 14 9 DEMURRER 9 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Code of Civil Procedure, section 430.10, SUD. (€) ..uvvvrrereieieeieiiiiiiieieeeeeeeeeiciriereee e e e e eee eev 14 Code of Civil Procedure, section 430.10, subd. (£).....c..ceveeieiiieiiiiiiiiiiieeeeeeeeeicereee e e 14 Government Code, SECtION 12900 .......ccciiiiiriiieiee ieee eee eee ee eats terete eee eesestaareeeseesessaes es 22 Government Code, SECHION 12026 .......ccoii viii ieee eee eee ee esas teeters ee ee testes es eesesaes ens 17 Government Code, section 12926, SUDA. (IN) .....ccvuvvieiiiieiiiiiiiiiieie eee e cts 17 Government Code, section 12940, SUDA. (2)(1) c.uvuririiiiiiiiiiiiiiieieee eects e eee 18 Government Code, section 12940, SUDA. () «oevveerriiiiniiernieeiie estes erect e sti 20 Government Code, section 12960, SUDAIVISION (C) ..uvvvieiieeiiiiiiiiiririieeeeeeeieiiireee ee ee ee rarae ee e e ens 14 Health and Safety Code, section 101852 ......ccoouiiiiiiiiiiiiiiie eee eee eee eee ese 15,16 Health and Safety Code, section 1018521 ....cocuiiiiiiiiiiiiiiie eee cece 15 Health and Safety Code, section 101853 ......ccuiiiiiiiiiiiieeie eee ee sees 15 Health and Safety Code, section 101853, SUD. (Q) ..cccveeeiiiiiniiiiiiiiiieeeie cece e 15 Health and Safety Code, section 101853, SUD. (C) ..eevuvieeiiiiiiiiiiiiiiirieeeiiie cece e ee 16 Labor Code, SECON 1102.5 ..c.uouiiiiiiiiiiiiiiee ee sees eee esses esas ee ee aes eaeaaesasaeasas 17 Labor Code, SECON 0310 ......ouiuiiiiiiiiiiiiiiieiee ee ee eee eens esse sees se seesen sasasasesassesens 17 Other Authorities Restatement (Second) of Torts, section 46, COM. d. .....oeeveieiieeieiiiiiiieeeeeee creer eee eee e e 24 10 DEMURRER 10 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Maria-Elena Lopez-Rodriguez (“Plaintiff”) brings this employment action against four named Defendants, including Kern Medical Center Foundation (“the Foundation”), alleging 11 causes of action. Of the 11 causes of action in the Complaint, the first through sixth claims allege violations of the Fair Employment and Housing Act (“FEHA”). However, Plaintiff failed to file a timely complaint with the Department of Fair Employment and Housing (“DFEH”) that named the Foundation as a respondent.’ The first through sixth causes of action are therefore conclusively barred as to the Foundation, and must be dismissed without leave to amend. The first through ninth causes of action are also contingent upon an employment relationship existing between plaintiff and defendant. However, such relationship does not and did not exist between the Foundation and Plaintiff.? Finally, the Complaint does not set forth facts showing the required extreme and outrageous conduct, or identify a specific statute or public policy violation, by the Foundation to permit Plaintiff to proceed on her claims for intentional infliction of emotional distress and under the California Unfair Competition Law. The Foundation therefore demurs to Plaintiff’s Complaint, and each and every cause of action therein, as briefed at length below. II. STATEMENT OF FACTS Plaintiff alleges that she was employed with the Center as a Certified Nursing Assistant (“CNA") for 12 years, starting on April 7, 2006. (Complaint, {J 8-9.) In approximately February 2015, Ms. Ruffin became Plaintiff’s supervisor. (Complaint, 9.) In her capacity as Plaintiff’s supervisor, Ms. Ruffin assigned her “new responsibilities [which] included tasks as an outpatient scheduler and eye clinic technician/assistant,” “forced [her] to work in information technology” and order, pick up, and drive supplies to the hospital, and carry them upstairs. (Complaint, { 10, 11.) Plaintiff also alleges that Ms. Ruffin “deprived” her of rest breaks. (Complaint, 11.) I See Request for Judicial Notice (“RIN”) filed concurrently herewith, Exhibit “1.” 2 See RIN, Exhibits “2,” “3,” and “4”; Health & Saf. Code, §§ 101852, 101852.1 and 101853. 11 DEMURRER 11 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On March 23, 2015, Plaintiff emailed Ms. Ruffin and an unidentified “clinical director,” and “stated that her arthritis was making it ‘harder and harder’ for her to perform” the new responsibilities Ms. Ruffin assigned Plaintiff. (Complaint, 12.) Plaintiff specifically identifies these new responsibilities as “outside of [her] job duties as a CNA.” (Complaint, J 10.) After Plaintiff sent the March 23, 2015 email, Ms. Ruffin “began to speak to [her] with a demanding, forceful, and threatening tone of voice, and often yelled at [her].” (Complaint, 12.) Also in approximately March 2015, Ms. Ruffin responded “that is so gay” when Plaintiff pointed out that an unidentified employee was inadvertently omitted from the daily schedule. (Complaint, q 13, emphasis omitted.) Plaintiff does not allege that she or the unidentified employee are gay. Plaintiff found Ms. Ruffin’s response “offensive,” but does not allege that she shared this with Ms. Ruffin or anyone else. (Ibid.) After this exchange, Ms. Ruffin stroked Plaintiff’s left shoulder “in an uncomfortable and forceful way,” causing Plaintiff to “fear[] for her safety.” (Ibid.) Sometime thereafter, Ms. Ruffin started “keeping an uncomfortably close eye” on Plaintiff, and asked Plaintiff’s coworkers to do the same, and to advise Ms. Ruffin “how long [Plaintiff] took on restroom and lunch breaks.” (Complaint, | 14, emphasis omitted.) On October 2, 2015, Plaintiff emailed Ms. Ruffin and “politely inquired” whether she should call or text Ms. Ruffin when she takes her breaks, so that her coworkers would not be “in an uncomfortable situation.” (Ibid.) In 2016, Ms. Ruffin assigned Plaintiff to “move heavy furniture and computers, a task outside of her job duties” as a CNA. (Complaint, q 15, emphasis omitted.) Plaintiff does not allege that she complained to Ms. Ruffin or anyone else about these new responsibilities. Rather, she claims she “worked through the pain ... for approximately one year.” (/bid.) On approximately November 15, 2017, Plaintiff called Ms. Ruffin to inquire regarding “scheduling and coverage.” (Complaint, | 16.) Thereafter, Ms. Ruffin “pull[ed] [Plaintiff] from her workstation to reprimand her.” (Ibid.) Ms. Ruffin informed Plaintiff that she was “very frustrated” with Plaintiff, and that it was inappropriate for Plaintiff to call her and to fail to follow the chain of command. (Ibid., emphasis omitted) Ms. Ruffin told Plaintiff that she did not 12 DEMURRER 12 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consider Plaintiff’s job to be important, and that she was “doing [Plaintiff] a favor by allowing [her] to work.” (Ibid., emphasis omitted.) Plaintiff thereafter emailed Ms. Ruffin “for clarification regarding the ‘chain of command.” (Complaint, 17.) On approximately November 17, 2017, Ms. Ruffin told Plaintiff that she “‘was not going to email [Plaintiff] again’ and that what [Plaintiff] did was ‘wrong.’” (Ibid.) Plaintiff thereafter told Ms. Ruffin that “she needed to see a doctor” and “requested workers compensation paperwork.” (Ibid.) Ms. Ruffin informed Plaintiff that her “condition” was not work-related, denied her request, and did not provide her with workers compensation paperwork. (Ibid., emphasis added) Plaintiff subsequently saw her personal doctor, who “placed her on a medical leave of absence due to work related stress.” (Complaint, 18.) On approximately November 20, 2017, Plaintiff “filed a formal complaint” against Ms. Ruffin with Brooke Wendell, stating that Ms. Ruffin refused to provide her with workers compensation paperwork on two occasions, and requested such paperwork directly from Human Resources. (Ibid.) Plaintiff alleges that Ms. Ruffin’s “hostile behavior once again sharply escalated,” but does not set forth any facts regarding Ms. Ruffin’s purported conduct.” (Complaint, 19.) On approximately December 8, 2017, Plaintiff “complained via email” about Ms. Ruffin. (Complaint, 19.) In approximately January 2018, Plaintiff requested, but was denied, a transfer to a different supervisor. (Complaint, 20.) On approximately February 5, 2018, Plaintiff “lodged” a complaint with Russell Judd, “noting missed rest breaks” and “her complaints to HR in which no remedial action was taken” (sic). (Ibid.) Thereafter, Plaintiff took a leave of absence for “work-related stress” from February 13, 2018 to May 7, 2018, which was subsequently extended from May 8, 2018 to May 11, 2018, and from May 15, 2018 to June 9, 2018. (Complaint, 21.) Plaintiff subsequently requested additional leave from June 10, 2018 to June 16, 2018, but her employment was terminated because she had exhausted her leave entitlement. (/bid.) III. LEGAL STANDARD Pursuant to California Code of Civil Procedure section 430.10, a party may object to a 13 DEMURRER 13 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint by demurrer if “[t]he court has no jurisdiction of the subject of the cause of action alleged in the pleading,” “[t]he pleading does not state facts sufficient to constitute a cause of action,” or “[t]he pleading is uncertain.” (Code Civ. Proc., §430.10, subds. (a), (e) ) and (f) ).) A complaint must contain ultimate facts. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) Failure to plead the necessary ultimate facts will subject the complaint to demurrer for failure to state facts constituting the cause of action. (Berger v. California Ins. Guar. Ass’n (2005) 128 CalApp.4th 989, 1006.) The plaintiff bears the burden of proving a reasonable possibility exists to cure any defect in the complaint by amendment. (Balikov, supra, 94 Cal.App.4th at 819-820.) If a plaintiff fails to meet this burden, a demurrer should be sustained without leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742-743.) IV. LEGAL ARGUMENT A. THE FIRST THROUGH SIXTH CAUSES OF ACTION MUST BE DISMISSED In her First through Sixth causes of action, Plaintiff alleges claims under the FEHA against the Foundation. Each of these causes of action against the Foundation must be dismissed because Plaintiff failed to exhaust her administrative remedies by filing a timely complaint with the Department of Fair Employment and Housing (“DFEH”) that named the Foundation as a respondent. “The timely filing of a[n] administrative complaint, and exhaustion of that remedy, is a prerequisite to maintenance of a civil action for damages under the FEHA.” (Balloon v. Superior Court (1995) 39 Cal.App.4th 1116, 1120.) Pursuant to Government Code, section 12960, subdivision (c), a DFEH complaint “shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of.” (Emphasis added.) “[T]he word ‘shall’ is mandatory.” (Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1513.) “In order to bring a civil lawsuit under the FEHA, the defendants must have been named in the caption or body of the DFEH charge.” (Id. at 1515.) 14 DEMURRER 14 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff filed a complaint with the DFEH on September 10, 2018. (See RIN filed concurrently herewith, Exhibit “1.”) Her DFEH complaint named only Kern Medical Surgery Center, LLC dba Kern Medical Center and Brooke Wendell in the caption. (/bid.) The DFEH complaint also named Ms. Ruffin in its body - although not in its caption. (/bid.) The Foundation was not named as either a respondent (i.e., in the caption) nor in the body of the DFEH complaint. Under the plain language of Government Code, section 12960, subdivision (c), and California case law, Plaintiff failed to exhaust her administrative remedies as against the Foundation. Under the then-applicable statute of limitations, “no [DFEH] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice ... occurred.” (Prior Government Code, 12960, subd. (d), emphasis added.) Here, Plaintiff alleges that she was terminated because she exhausted her leave entitlement by approximately June 2018. (See Complaint, 21.) Consequently, any alleged unlawful practice would have occurred, at the latest, by the time of her termination in approximately June 2018. Under the then-applicable statute of limitations, Plaintiff had one year from that date - i.e., until June 2019 - to timely file a DFEH complaint that named the Foundation as a respondent. However, Plaintiff failed to file such DFEH complaint by the June 2019 deadline. Because Plaintiff cannot cure such failure by amendment, the First through Sixth causes of action under the FEHA against the Foundation must be dismissed without leave to amend. B. THE FIRST THROUGH NINTH CAUSES OF ACTION MUST BE DISMISSED 1. The Foundation Is a Separate and Distinct Legal Entity from Plaintiff’s Previous Employer Health and Safety Code, sections 101852, 101852.1 and 101853, authorize the Board of Supervisors of the County of Kern to establish by ordinance the Kern County Hospital Authority (“the Authority”). The Authority is a “public agency that is a local unit of government separate and apart from the county and any other public entity for all purposes.” (Health & Saf. Code, § 101853, subd. (a).) It has “authority for the maintenance, operation, management, control, 15 DEMURRER 15 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ownership, or lease of the medical center and other health-related resources, as provided by the enabling ordinance.” (Health & Saf. Code, § 101853, subd. (c).) The term “medical center” is defined as the assets and liabilities comprising the Kern Medical Center, including, without limitation, a licensed acute care hospital and related public health care programs, facilities, care organizations, physician practice plans and delivery systems, which may be hospital-based or nonhospital-based, as specified by the board of supervisors or the authority now or in the future, as the case may be, depending on which entity controls the medical center. (Health & Saf. Code, § 101852.1, subd. (2) The Authority, who is not named as a defendant in the Complaint, is the public entity that owns and operates Kern Medical Surgery Center, LLC (“the Center”), a named defendant. (See RIN filed concurrently herewith, Exhibits “2,” and “3.”) The Authority, as sole owner and operator of the Center, employed Plaintiff prior to her termination in approximately June 2018. The Foundation is a nonprofit public benefit corporation, whose primary purpose is to raise, gather, and collect donations and other sources of funding to support the operation and maintenance of the healthcare facilities, programs, and services of the Center. (See RIN filed concurrently herewith, Exhibit “4.”). The Foundation is a separate and distinct legal entity from the Authority and the Center, never had any employment relationship with Plaintiff, has no involvement in the alleged conduct underlying her claims, and cannot be held liable for claims arising from her employment with the Authority. 2. No Employment Relationship Exists or Existed between Plaintiff and the Foundation An employment relationship is a prerequisite of the first through ninth causes of action in the Complaint. (See California Civil Jury Instructions (“CACI”) No. 2540 [as to the first cause of action for disability discrimination], No. 2521A [as to the second cause of action for disability harassment], No. 2541 [as to the third cause of action for failure to provide reasonable accommodation], No. 2546 [as to the fourth cause of action for failure to engaged in the interactive process], No. 2505 [as to the fifth cause of action for retaliation for engaging in protected activity], No. 2527 [as to the sixth cause of action for failure to prevent discrimination, harassment or retaliation], No. 4605 [as to the seventh cause of action for violation of Labor Code 16 DEMURRER 16 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s An ge le s, Ca li fo rn ia 90 04 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 section 6310], No. 2430 [as to the eight cause of action for wrongful termination in violation of public policy], and No. 4603 [as to the ninth cause of action for violation of Labor Code 1102.5].) Because, as explained above, no such relationship exists or existed between the Foundation and Plaintiff, the first through ninth causes of action must be dismissed as against the Foundation.? C. THE FIRST, SECOND, THIRD AND FOURTH CAUSES OF ACTION MUST BE DISMISSED Plaintiff alleges vaguely that “she suffered from a disability and/or medical condition,” and that she had both “rheumatoid arthritis” and “work-related stress and panic attacks.” (Complaint, 97, 12, 18.) Preliminarily, it is unclear from the Complaint whether “rheumatoid arthritis” or “work-related stress and panic attacks,” if either, is the alleged ailment that forms the basis of Plaintiff’s claims of disability discrimination and harassment, and failure to accommodate and engage in the interactive process. Moreover, it is unclear whether these conditions constitute a disability under the FEHA. Plaintiff cannot articulate a claim of disability discrimination by doing no more than alleging a disability or identifying an injury or physical condition. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 47.) “To proceed as a physically disabled person under the first prong of the statutory definition, [a plaintiff] must demonstrate his injury or physical condition ... makes ‘difficult’ the achievement of work or some other major life activity.” (/bid.) For purposes of the FEHA, a “mental disability” is one that “limits a major life activity.” (Gov. Code, § 12926, subd. (j).) A “physical disability” must likewise “limit[] a major life activity. (Gov. Code, § 12926, subd. (m).) Here, Plaintiff does not specify which purported condition, if any, limits a major life activity, and does not identify the major life activity alleged to be affected. In the absence of a “disability” as the term is defined under the FEHA, Plaintiff does not articulate an essential element of her causes of action for disability discrimination, disability harassment, and failure to accommodate and engage in the interactive process. 3 To avoid redundancy, the absence of an employment relationship between the Foundation and Plaintiff as a basis for demurrer is concisely addressed herein, and incorporated by this reference into Sections II.D-J, infra. 17 DEMURRER 17 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s An ge le s, Ca li fo rn ia 90 04 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consequently, the first, second, third, and fourth causes of action must be dismissed. D. THE FIRST CAUSE OF ACTION FOR DISABILITY DISCRIMINATION IN VIOLATION OF THE FEHA MUST BE DISMISSED 1. The First Cause of Action Must Be Dismissed because Plaintiff Does Not Allege that She Was Qualified to Do Her Job, or that She Was Subjected to an Adverse Employment Action because of Her Disability “A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability.” (Nealy v. City of Santa Monica (2015) 234 Cal. App.4th 359, 378.) Here, all essential elements of a prima facie case are absent.” To plead the second element of a prima facie case of disability discrimination under the FEHA, Plaintiff must set forth facts showing that she is a “qualified individual.” (Nealy, supra, 234 Cal. App.4th at 378.) “That is, a qualified individual is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation.” (Ibid.) The FEHA “does not prohibit an employer from ... discharging an employee with a physical or mental disability ... where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations.” (Nealy, supra, at 378-379, citing Gov. Code, § 12940, subd. (a)(1).) Here, Plaintiff does not allege that she was otherwise qualified to do her job. Consequently, she fails to plead the second element of a prima facie case for disability discrimination, and for this reason alone, her first cause of action must be dismissed. The third element of a prima facie case of disability discrimination in violation of the FEHA requires that Plaintiff set forth facts showing that she “was subjected to adverse employment action because of the disability.” (Nealy, supra, 234 Cal. App.4th at 378.) In this instance, Plaintiff does not allege that the Defendants’ purported conduct was motivated by her * The absence of first element of a prima facie case of disability discrimination under the FEHA is briefed at length at Section VI.C, supra. 18 DEMURRER 18 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disability. To the contrary, she alleges that her “actual, perceived, and/or history of disability and/or other characteristics protected by the FEHA” were the Defendants’ purported “motivating factors.” (Complaint, J 31, emphasis added.) Consequently, Plaintiff’s first cause of action must be dismissed because a prima facie case of disability discrimination under the FEHA requires that she set forth facts showing that she was subjected to an alleged adverse employment action because of disability, not other, unidentified protected characteristics. 2. The First Cause of Action Must Be Dismissed because It Is Uncertain a. The first cause of action is ambiguous as to the alleged “motivating factor” for the Defendants’ purported conduct Pursuant to Code of Civil Procedure section 430.10, subdivision (f), a demurrer may be brought on the grounds that “[t]he pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” Here, Plaintiff’s “complaint is framed in such a disjointed and incoherent manner that the only course open to [the Foundation is] that of interposing a demurrer raising the questions of misjoinder of causes of action, uncertainty, ambiguity and unintelligibility.” (Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73.) To articulate a prima facie case of disability discrimination, a plaintiff must set forth facts showing that the defendant took some adverse employment action against the plaintiff because of her disability. (Nealy, supra, 234 Cal.App.4th at 378, emphasis added.) Here, Plaintiff fails to identify a specific mental or physical condition that limits a major life activity which motivated the Defendants’ purported conduct. Rather, she alleges that the Defendants’ purported conduct may have been motivated by her disability or “other characteristics protected by FEHA.” (Complaint, 31.) The first cause of action is therefore ambiguous as to the motivating factor for the Defendants’ purported conduct. The Foundation is left to guess as to what FEHA-protected characteristic Plaintiff is suing under, and the claim of disability discrimination under the FEHA must be dismissed as uncertain. b. Plaintiff attempts to combine separate causes of action into a single claim for disability discrimination under the FEHA FEHA prohibits several employment practices relating to physical disabilities.” (Nealy, 19 DEMURRER 19 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supra, 234 Cal.App.4th 359, 371.) The prohibited employment practices are: (1) discriminating against employees on the basis of their disability; (2) failing to reasonably accommodate them; (3) failing to engage them in the interactive process; and (4) retaliating against them for opposing practices prohibited by the FEHA. (/bid.) “Separate causes of action exist for each of these unlawful practices.” (Ibid.) Nevertheless, Plaintiff attempts to combine each of these separate causes of action as a single claim for disability discrimination. (Complaint, 32.) Her claim for disability discrimination under the FEHA is thus uncertain, and must be dismissed. E. THE SECOND CAUSE OF ACTION FOR HARASSMENT ON THE BASIS OF DISABILITY IN VIOLATION OF THE FEHA MUST BE DISMISSED 1. Plaintiff Does Not Set Forth Facts Showing Conduct that Was Sufficiently Severe or Pervasive To plead a claim for disability harassment under the FEHA, Plaintiff must set forth facts showing that: (1) she was subjected to unwanted harassing conduct because of a protected classification; (2) the conduct was sufficiently severe or pervasive such that a reasonable person would have considered the work environment to be hostile; and (3) Plaintiff actually considered it hostile.” (Gov. Code, § 12940, subd. (j); Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131, emphasis added.) Here, Plaintiff does not allege conduct so severe or pervasive that a reasonable person would have considered her work environment to be hostile. Indeed, Plaintiff does not even identify the conduct alleged to be harassing. She appears to suggest, but does not specify, that she was harassed because of the duties assigned to her, because she was subjected to scrutiny by Ms. Ruffin and not transferred to another supervisor, and because she was not given additional leave after she exhausted her leave entitlement. (Complaint, 11-12, 14-15, 20-21.) These alleged personnel management actions cannot form the basis of a harassment claim. For purposes of the FEHA, commonly necessary personnel management actions such as hiring and firing, job > The absence of a “disability” as the term is defined under the FEHA is briefed at length at Section VL.C, supra. 20 DEMURRER 20 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.) “Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.” (Janken, supra, 46 Cal. App.4th at 64.) Because personnel management actions such as decisions pertaining to assignments, supervision, and the exercise of discretion in granting additional leave are not harassment as a matter of law, Plaintiff’s second cause of action must be dismissed. 2. The Second Cause of Action is Ambiguous as to the Alleged “Motivating Factor” for the Defendants’ Purported Conduct Plaintiff does not allege that she was harassed because of a disability as the term is defined under the FEHA. To the contrary, she claims she was harassed due to her “actual, perceived, and/or history of disability and/or other protected characteristics protected by the FEHA.” (Complaint, 38.) Preliminarily, Plaintiff fails to set forth any “other protected characteristics” in the Complaint. Crucially, Plaintiff may not base a disability harassment cause of action on unidentified “other protected characteristics.” Because the second cause of action is ambiguous as to whether Plaintiff was allegedly harassed because of a disability or because of “other protected characteristics” not identified in the Complaint, Plaintiff’s claim of harassment on the basis of disability must be dismissed. F. THE THIRD CAUSE OF ACTION FOR FAILURE TO ACCOMMODATE MUST BE DISMISSED A cause of action for failure to accommodate under the FEHA is contingent upon three essential elements: “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.) Here, both the first and second elements are missing. As explained 21 DEMURRER 21 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 above, Plaintiff does not allege that she had a “disability” as the term is defined under the FEHA (see Section IV.C, supra), or that she was “qualified to perform the essential functions of the position” (see Section IV.D.1, supra). In the absence of these essential elements, Plaintiff does not set forth facts sufficient to constitute a claim of failure to accommodate, and the third cause of action must be dismissed. G. THE FOURTH CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS MUST BE DISMISSED To establish a prima facie case for failure to engage in the interactive process, Plaintiff must, inter alia, establish that she “requested that [the Foundation] make reasonable accommodation” for her disability “so that she would be able to perform the essential job requirements.” (See CACI No. 2546.) Here, Plaintiff does not allege that she requested that the Foundation make a reasonable accommodation so that she could perform the essential job requirements - indeed, no employment relationship existed between the Foundation and Plaintiff (see Section VL.B, supra), Plaintiff does not allege that she had a “disability” as the term is defined under the FEHA (see Section IV.C, supra) or that she could perform the essential job requirements with or without an accommodation (see Section IV.D.1, supra). Consequently, the fourth cause of action fails to state a claim, and must be dismissed. H. THE FIFTH CAUSE OF ACTION FOR RETALIATION IN VIOLATION OF THE FEHA MUST BE DISMISSED “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Here, the fifth cause of action is fatally deficient because Plaintiff does not set forth a specific protected activity. Rather, she alleges vaguely that her “engagement in protected activity” includes “good faith complaints and/or opposition to discrimination and harassment based on age, disability, and/or good faith complaints protected by the FEHA, Government Code section 12900, et seq., as well as to defendants’ failure to accommodate her disability and failure 22 DEMURRER 29 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to engage in the interactive process.” (Complaint, 58.) However, Plaintiff does not set forth any facts to establish that she opposed discrimination and harassment based on age, and does not reference her own age, or anyone else’s, anywhere in the Complaint. Likewise, Plaintiff does not identify her alleged “good faith complaints protected by the FEHA [and] Government Code section 12900, et seq.” (Complaint, 58.) Plaintiff’s reliance upon her alleged “opposition ... to defendants’ failure to accommodate her disability and failure to engage in the interactive process” (Complaint, 58) is also misplaced. As in McKenna v. Permanente Medical Group, Inc., 894 F.Supp.2d 1258 (C.D. Cal. Aug. 13, 2012), Plaintiff “bundles the alleged protected activities with termination due to medical leave.” (McKenna at 1280.) As such, her “retaliation claim essentially alleges a wrongful termination claim, not a retaliation claim” and “is subject to dismissal given the absence of a causal connection between protected activity and adverse employment action.” (/bid.) Consequently, because the fifth cause of action does not state facts sufficient to constitute an alleged protected activity and a causal link between that activity and any alleged adverse employment action, Plaintiff’s claim of retaliation in violation of the FEHA must be dismissed. I. THE SIXTH CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION, HARASSMENT, AND RETALIATION IN VIOLATION OF THE FEHA MUST BE DISMISSED A cause of action for failure to prevent discrimination, harassment and retaliation is “dependent” upon a claim of “actual” discrimination, harassment and retaliation. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315, citing Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021, internal quotation marks omitted.) Because Plaintiff cannot establish that she suffered discrimination, harassment, or retaliation (see Sections IV.A, B, C, D, E, and H, supra), she cannot maintain a cause of action for failure to prevent such discrimination, harassment or retaliation. (Dickson, 234 Cal.App.4th at 1315-1316.) J. THE TENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL (“IED”) DISTRESS MUST BE DISMISSED Plaintiff must plead three essential elements to state a prima facie case for IIED: “(1) 23 DEMURRER 23 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal. App.4th 488, 494.) However, “[r]esolution of the matter turns on the first element - whether or not the conduct alleged was sufficiently extreme and outrageous.” (Ibid.) While “[t]here is no bright line standard for judging outrageous conduct,” California “appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Cochran, supra, 65 Cal.App.4th at 494.) Intent that “is tortious or even criminal” or “to inflict emotional distress,” as well as conduct characterized “by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort” are insufficient to establish liability. (Id. at 496, citing Rest. 2d Torts, § 46, com. d.) “Further, the tort does not extend to ‘mere insults, indignities, threats, 999 annoyances, petty oppressions or other trivialities.”” (Ibid., emphasis omitted.) In the employment context, conduct was deemed not outrageous “where plaintiff’s evidence showed her supervisor screamed, yelled and made threatening gestures while criticizing her job performance” or “where plaintiff alleged his employer prevented him from being a union steward, transferred him from job to job, wrongly denied him promotions, assigned him inappropriate job tasks, and personally insulted him.” (Cochran, supra, 65 Cal.App.4th at 497.) Here, Plaintiff alleges that she was assigned additional duties outside of her position as a CNA, spoken to in an inappropriate tone and yelled at, subjected to a comment she characterizes as homophobic - although she does not allege that she is a member of the LGBT community or associated with one - and to scrutiny, and eventually terminated two years later after Defendants allegedly failed to engage her in the interactive process and accommodate her. Such conduct is, as a matter of law, not sufficiently outrageous to establish a prima facie case for IIED. Moreover, Plaintiff’s IIED claim “is precluded by the ‘exclusive remedy’ provision of the Workers’ Compensation Act.” (Jenkins v. Family Health Program (1989) 214 Cal.App.3d 440, 449.) Consequently, the tenth cause of action fails to state a claim, and must be dismissed. 24 DEMURRER 24 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K. THE ELEVENTH CAUSE OF ACTION FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION 17200, ET SEQ., MUST BE DISMISSED Pursuant to Business and Professions Code, section 17200, “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” Here, Plaintiff does not identify a prohibited business act, practice or advertising undertaken by the Foundations. Rather, Plaintiff alleges vaguely that “Defendants, and each of them, have violated statues and public policy.” (Complaint, J 102.) These alleged violations form the basis of her eleventh cause of action for violation under the California Unfair Competition Law (“UCL”). Such allegations, however, are insufficient to articulate a claim under the UCL. As explained above, no employment relationship exists between the Foundation and Plaintiff. (See Section IV.B, supra.) As such, the Foundation could not have violated the FEHA and the Labor Code, or terminated Plaintiff in violation of public policy as alleged in the Complaint. In the absence of a specific statute or public policy the Foundation is alleged to have violated, the eleventh cause of action must be dismissed. V. CONCLUSION For the foregoing reasons, the Foundation respectfully requests the Court grant its demurrer, and grant without leave to amend as to the first through ninth causes of action, as those causes of action are incapable of an amendment that will overcome the Foundation’s defenses to them. Dated: July 6, 2020 LIEBERT CASSIDY WHITMORE By: /s/ Emanuela Tala Brian P. Walter I. Emanuela Tala Attorneys for Defendants KERN MEDICAL SURGERY CENTER, LLC; KERN MEDICAL CENTER FOUNDATION; and MARIE RUFFIN 25 DEMURRER 25 9312636.3 KE045-025 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF I. EMANUELA TALA I, I. Emanuela Tala, hereby declare as follows: I. I am an attorney at law, duly licensed and authorized to practice before all of the courts of the State of California. I am an associate with the law firm of Liebert Cassidy Whitmore, attorneys of record for Defendant Kern Medical Center Foundation (“the Foundation”). Ihave personal knowledge of the following facts and, if called as a witness, I could and would competently testify thereto. 2. I make this declaration in support of the Foundation’s demurer to Plaintiff Maria- Elena Lopez-Rodriguez’s (“Plaintiff”) Complaint for Damages. 3. On June 29, 2020, I sent a letter to Michael Zelman, Esq. and Taylor M. Prainito, Esq. of the Southern California Labor Law Group, PC, attorneys of record for Plaintiff, to initiate the meet and confer process prior to the filing of the Foundation’s demurrer pursuant to Code of Civil Procedure section 430.41. A true and correct copy of my June 29, 2020 letter is attached hereto as Exhibit “1” and incorporated herein by this reference. 4. As of the time of the filing of this demurrer, Mr. Zelman and Ms. Prainito have not responded to my June 29, 2020 letter. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 6 day of July, 2020, at Los Angeles, California. /s/ Emanuela Tala 1. Emanuela Tala 26 DEMURRER 26 9312636.3 KE045-025 EXHIBIT 1 27 LCW LieBerT CAssiDy WHITMORE 6033 WEST CENTURY BOULEVARD, 5TH FLOOR LOS ANGELES, CALIFORNIA 90045 T:310.981.2000 F: 310.337.0837 etala@lcwlegal.com June 29, 2020 VIA EMAIL mzelman @scllgpc.com tprainito @scllgps.com Michael Zelman Taylor M. Prainito Southern California Labor Law Group, PC 1875 Century Park East, Suite 480 Los Angeles, CA 90067 Re: Meet and Confer Letter Regarding Demurrer and Motion to Strike on behalf of Kern Medical Center Foundation Client-Matter: KE045/025 Dear Counsel: Our office has been retained to represent Defendant Kern Medical Center Foundation (“the Foundation”) in Lopez-Rodriguez v. Kern Medical Surgery Center, LLC, et al., Kern County Superior Court Case Number BCV-20-100510.! Please allow this communication to initiate the meet and confer process prior to the filing of a demurrer and motion to strike portions of Plaintiff Maria Elena Lopez-Rodriguez’s (“Plaintiff”) Complaint, pursuant to Code of Civil Procedure sections 430.41 and 435.5, on behalf of the Foundation. I. THE FOUNDATION SHOULD BE DISMISSED FROM THIS ACTION BECAUSE NO EMPLOYMENT RELATIONSHIP EXISTS BETWEEN THE FOUNDATION AND PLAINTIFF The Complaint names the Center, the Foundation, the County of Kern, and Ms. Ruffin (collectively “Defendants”) as defendants. Kern County Hospital Authority (“the Authority”) is the public entity that owns and operates the Center. The Authority employed Plaintiff prior to her termination on July 10, 2018. There is no employment relationship between the Foundation and Plaintiff. The Foundation is a nonprofit public benefit corporation, whose primary purpose is to raise, gather, and collect donations and other sources of funding to support the operation and ! As you already know, our office has been retained to represent Defendants Kern Medical Surgery Center, LLC (“Center”), and Marie Ruffin in this action. The Center and Ms. Ruffin filed a demurrer and motion to strike portions of Plaintiff’s Complaint on May 28, 2020. Los Angeles | San Francisco | Fresno | San Diego! Sacramento www.lcwlegal.com 9311454.1 KE045-025 28 Michael Zelman Taylor M. Prainito Re: Meet and Confer Letter Regarding Demurrer and Motion to Strike on behalf of Kern Medical Center Foundation June 29, 2020 Page 2 maintenance of the healthcare facilities, programs, and services of the Center. In contrast, the Authority is a public agency that is a local unit of government separate and apart from the County of Kern, and any other public entity for all purposes. (See Health & Saf. Code § 101852 et. seq.) In 2016, the County of Kern transitioned ownership, maintenance, control, management, and operation of the Center to the Authority. The Foundation is a separate and distinct legal entity from the Authority? and the Center, has no employment relationship with Plaintiff, no involvement in the alleged conduct underlying her claims, and cannot be held liable for claims arising from her employment with the Authority. We therefore request Plaintiff dismiss the Foundation from this action. An employment relationship is a prerequisite of the first through ninth causes of action in the Complaint. (See California Civil Jury Instructions (“CACI”) No. 2540 [as to the first cause of action for disability discrimination], No. 2521A [as to the second cause of action for disability harassment], No. 2541 [as to the third cause of action for failure to provide reasonable accommodation], No. 2546 [as to the fourth cause of action for failure to engaged in the interactive process], No. 2505 [as to the fifth cause of action for retaliation for engaging in protected activity], No. 2527 [as to the sixth cause of action for failure to prevent discrimination, harassment or retaliation], No. 4605 [as to the seventh cause of action for violation of Labor Code section 6310], No. 2430 [as to the eight cause of action for wrongful termination in violation of public policy], and No. 4603 [as to the ninth cause of action for violation of Labor Code 1102.5].) Because no such relationship exists or existed between the Foundation and the Plaintiff, the first through ninth causes of action must be dismissed as against the Foundation. To avoid redundancy, the absence of an employment relationship between the Foundation and Plaintiff as a basis for demurrer is concisely addressed in this paragraph, and will not be addressed again below. II. PLAINTIFF’S ALLEGATION OF ENTITLEMENT TO AND PRAYER FOR RELIEF FOR PUNITIVE DAMAGES AGAINST THE FOUNDATION FAIL Code of Civil Procedure section 436 allows the Court to strike any irrelevant, false or improper matter asserted in any pleading or to strike any part of a pleading that is not drawn or filed in conformity with the laws of this state. Defendants intend to file a motion to strike Plaintiff’s allegations of entitlement to punitive damages. (Complaint, 9 27, 36, 42, 50, 56, 63, 71,78, 83, 90, 96, Prayer for Relief, 2.) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal. App.4th 1253, 1255.) Allegations that are “devoid of any factual assertions supporting a conclusion [a defendant] acted with oppression, 21 have attached for your reference the Foundation’s Articles of Incorporation and the relevant portions of the California Health and Safety Code related to the creation of the Authority, which confirm that these are two separate legal entities. 9311454.1 KE045-025 29 Michael Zelman Taylor M. Prainito Re: Meet and Confer Letter Regarding Demurrer and Motion to Strike on behalf of Kern Medical Center Foundation June 29, 2020 Page 3 fraud or malice” are insufficient. (Smith v. Superior Court (1992) 10 Cal. App.4th 1033, 1042.) Plaintiff does not offer any factual assertions supporting a conclusion that the Foundation acted with oppression, fraud or malice. As such, allegations of entitlement to and the prayer for relief for punitive damages must be struck from the Complaint. III. PLAINTIFE’S FIRST THROUGH SIXTH CAUSES OF ACTION MUST BE DISMISSED AS AGAINST THE FOUNDATION BECAUSE PLAINTIFF FAILED TO EXHAUST HER ADMINISTRATIVE REMEDIES In her first through sixth causes of action, Plaintiff alleges claims under the Fair Employment and Housing Act (“FEHA”) against, inter alia, the Foundation. Each of these causes of action must be dismissed as against the Foundation because Plaintiff failed to exhaust her administrative remedies by filing a timely complaint with the Department of Fair Employment and Housing (“DFEH”) that named the Foundation as a respondent. “The timely filing of a[n] administrative complaint, and exhaustion of that remedy, is a prerequisite to maintenance of a civil action for damages under the FEHA.” (Balloon v. Superior Court (1995) 39 Cal.App.4th 1116, 1120.) Pursuant to Government Code, section 12960, subdivision (c), a DFEH complaint “shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of.” (Emphasis added.) “[TThe word ‘shall’ is mandatory.” (Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1513.) “In order to bring a civil lawsuit under the FEHA, the defendants must have been named in the caption or body of the DFEH charge.” (Id. at 1515.) Plaintiff filed a complaint with the DFEH on September 10, 2018. Her DFEH complaint named only Kern Medical Surgery Center, LLC dba Kern Medical Center and Brooke Wendell in the caption. The DFEH complaint also named Ms. Ruffin in its body - although not in its caption. By contrast, the Foundation was not named as either a respondent (i.e., in the caption) nor in the body of the DFEH complaint. Under the plain language of Government Code, section 12960, subdivision (c), and California case law, Plaintiff thus failed to exhaust her administrative remedies as against the Foundation, and the first through sixth causes of action must therefore be dismissed as to this defendant. IV. THE FIRST, SECOND, THIRD, AND FOURTH CAUSES OF ACTION MUST BE DISMISSED BECAUSE PLAINTIFF DOES NOT SET FORTH A “DISABILITY” AS DEFINED UNDER THE FEHA Plaintiff alleges that she suffers from “rheumatoid arthritis” and “work-related stress.” (Complaint, J 12 and 21.) It is unclear which of these alleged conditions, if any, is the purported “disability” that forms the basis of Plaintiff’s first through fourth causes of action. 9311454.1 KE045-025 30 Michael Zelman Taylor M. Prainito Re: Meet and Confer Letter Regarding Demurrer and Motion to Strike on behalf of Kern Medical Center Foundation June 29, 2020 Page 4 This ambiguity alone makes the Complaint subject to a demurrer. (Code Civ. Proc., § 430.10, subd. (f).) Moreover, the Complaint does not set forth a “disability” as defined under the FEHA. For purposes of the FEHA, a “mental disability” is one that “limits a major life activity.” (Gov. Code, § 12926, subd. (j).) A “physical disability” must likewise “limit[] a major life activity. (Gov. Code, §, subd. (m).) Here, Plaintiff does not specify which purported “disability,” if any, limits a major life activity, and does not identify the major life activity alleged to be affected. Consequently, because Plaintiff does not set forth a “disability” as defined under the FEHA, the first through fourth causes of action fail to state a claim. V. THE FIRST CAUSE OF ACTION FOR DISABILITY DISCRIMINATION UNDER THE FEHA MUST BE DISMISSED “A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 378.) Here, Plaintiff fails to set forth facts showing that she was qualified to do her job or to even allege that she was so qualified. In the absence of the second essential element of a prima facie case, the first cause of action must be dismissed. Moreover, pursuant to Code of Civil Procedure section 430.10, subdivision (f), a demurrer may be brought on the grounds that “[t]he pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” Here, “[t]he complaint is framed in such a disjointed and incoherent manner that the only course open to [Defendants is] that of interposing a demurrer raising the questions of misjoinder of causes of action, uncertainty, ambiguity and unintelligibility.” (Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73.) Plaintiff alleges that she was discriminated against due to her “actual, perceived, and/or history of disability and/or other characteristics protected by FEHA.” (Complaint, 31.) However, to establish a cause of action for disability discrimination under the FEHA, Plaintiff must specify the actual or perceived mental or physical condition, or the history thereof, that “was a substantial motivating factor” for the alleged adverse action. (See CACI No. 2540.) Plaintiff must also plead that she “was subjected to adverse employment action because of the disability.” (Nealy, supra, 234 Cal.App.4th 378, emphasis added.) Plaintiff fails to identify a specific mental or physical condition that limits a major life activity which motivated the Defendants’ alleged conduct. Indeed, she alleges that Defendants’ purported conduct may have been motivated by “other characteristics protected by FEHA.” (Complaint, § 31.) Consequently, the first cause of action is “uncertain” as to the alleged “substantial motivating factor” for Defendant’s conduct and leaves Defendants guessing as to what FEHA -protected characteristic she is suing under, and must therefore be dismissed. 9311454.1 KE045-025 31 Michael Zelman Taylor M. Prainito Re: Meet and Confer Letter Regarding Demurrer and Motion to Strike on behalf of Kern Medical Center Foundation June 29, 2020 Page 5 Furthermore “FEHA prohibits several employment practices relating to physical disabilities.” (Nealy, supra, 234 Cal.App.4th 359, 371.) These prohibited employment practices are: (1) discriminating against employees on the basis of their disability; (2) failing to reasonably accommodate them; (3) failing to engage them in the interactive process; and (4) retaliating against them for opposing practices prohibited by the FEHA. (Ibid.) “Separate causes of action exist for each of these unlawful practices.” (Ibid.) Nevertheless, Plaintiff attempts to combine each of these separate causes of action as a single claim for disability discrimination. (Complaint, 32.) Her claim for disability discrimination under the FEHA is therefore uncertain, and fails to state a claim. VI. THE SECOND CAUSE OF ACTION FOR DISABILITY HARASSMENT UNDER THE FEHA MUST BE DISMISSED To plead a claim for disability harassment under the FEHA, Plaintiff must set forth facts showing that: (1) she was subjected to unwanted harassing conduct because of a protected classification; (2) the conduct was sufficiently severe or pervasive such that a reasonable person would have considered the work environment to be hostile; and (3) Plaintiff actually considered it hostile.” (Gov. Code, § 12940, subd. (j); Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130-131, emphasis added.) Here, Plaintiff does not allege conduct so severe or pervasive that a reasonable person would have considered her work environment to be hostile. Indeed, Plaintiff does not identify the conduct alleged to be harassing. The Complaint appears to suggest, but does not specify, that Plaintiff was harassed because of the duties assigned to her, because she was subjected to scrutiny by Ms. Ruffin and not transferred to another supervisor, and because she was not given additional leave after she exhausted her leave entitlement. (Complaint, { 11-12, 14-15, 20-21.) However, a harassment claim may not be based upon personnel management actions. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.) Moreover, Plaintiff does not allege that she was harassed against because of a disability as the term is defined under the FEHA. To the contrary, she claims she was harassed due to her “actual, perceived, and/or history of disability and/or other protected characteristics protected by the FEHA.” (Complaint, 4 38.) Preliminarily, Plaintiff fails to set forth “other protected characteristics” in the Complaint. Moreover, Plaintiff may not base a disability harassment cause of action on unidentified “other protected characteristics.” As such, the second cause of action fails to state a claim. 1" 1" 9311454.1 KE045-025 32 Michael Zelman Taylor M. Prainito Re: Meet and Confer Letter Regarding Demurrer and Motion to Strike on behalf of Kern Medical Center Foundation June 29, 2020 Page 6 VII. THE THIRD CAUSE OF ACTION FOR FAILURE TO PROVIDE REASONABLE ACCOMMODATION UNDER THE FEHA MUST BE DISMISSED A cause of action for failure to accommodate under the FEHA is contingent upon three essential elements: “(1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.) As explained above, Plaintiff does not allege that she was “qualified to perform the essential functions of the position.” For that reason, the third cause of action must be dismissed. VIII. THE FOURTH CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS UNDER THE FEHA MUST BE DISMISSED To establish a prima facie case for failure to engage in the interactive process, Plaintiff must, inter alia, establish that she “requested that [the Foundation] make reasonable accommodation” for her disability “so that she would be able to perform the essential job requirements.” (See CACI No. 2546.) Here, Plaintiff does not allege that she requested that the Foundation make a reasonable accommodation so that she could perform the essential job requirements - indeed, Plaintiff does not allege that she could perform the essential job requirements with or without an accommodation. Consequently, the fourth cause of action fails to state a claim. IX. THE FIFTH CAUSE OF ACTION FOR RETALIATION UNDER THE FEHA MUST BE DISMISED “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) As explained above, Code of Civil Procedure section 430.10, subdivision (f), permits a defendant to attack a complaint by demurrer on the basis of uncertainty. Here, the fifth cause of action is fatally uncertain because Plaintiff does not set forth a specific protected activity. Rather, she alleges vaguely that she made “good faith complaints and/or [opposed] discrimination and harassment based on age, disability, and/or good faith complaints protected by the FEHA.” (Complaint, 58.) Nevertheless, Plaintiff does not set forth any facts to establish that she opposed discrimination and harassment based on age, and does not identify which “good faith complaints protected by the FEHA” form the basis of her claim for retaliation. In fact, she does not reference her own age, or anyone else’s, anywhere in the Complaint. Consequently, because the fifth cause of action is uncertain as to Plaintiff’s alleged protected activity, it fails to state a claim. 9311454.1 KE045-025 33 Michael Zelman Taylor M. Prainito Re: Meet and Confer Letter Regarding Demurrer and Motion to Strike on behalf of Kern Medical Center Foundation June 29, 2020 Page 7 X. THE SIXTH CAUSE OF ACTION FOR FAILURE TO PREVENT DISCRIMINATION, HARASSMENT AND RETALIATION MUST BE DISMISSED Because Plaintiff cannot establish that she suffered discrimination, harassment or retaliation, she cannot maintain a cause of action for failure to prevent such discrimination, harassment or retaliation. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315-1316.) XI. THE TENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS MUST BE DISMISSED BECAUSE DEFENDANTS HAVE NOT ENGAGED IN EXTREME AND OUTRAGEOUS CONDUCT Plaintiff must plead three essential elements to articulate a prima facie case for intentional infliction of emotional distress (“IIED”): “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (2) the plaintift’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) However, “[r]esolution of the matter turn on the first element - whether or not the conduct alleged was sufficiently extreme and outrageous.” (Ibid.) While “[t]here is no bright line standard for judging outrageous conduct,” California “appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Cochran, supra, 65 Cal. App.4th at 494.) Intent that “is tortious or even criminal” or “to inflict emotional distress,” as well as conduct characterized “by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort” are insufficient to establish liability. (Id. at 496, citing Rest. 2d Torts, § 46, com. d.) “Further, the tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions or other trivialities.”” (Ibid., emphasis omitted.) In the employment context, conduct was deemed not outrageous “where plaintiffs evidence showed her supervisor screamed, yelled and made threatening gestures while criticizing her job performance” or “where plaintiff alleged his employer prevented him from being a union steward, transferred him from job to job, wrongly denied him promotions, assigned him inappropriate job tasks, and personally insulted him.” (Cochran, supra, 65 Cal.App.4th at 497.) Here, Plaintiff alleges that she was assigned additional duties outside of her position as a CNA, spoken to in an inappropriate tone and yelled at, subjected to a comment she characterizes as homophobic - although she does not allege that she is a member of the LGBT community or associated with one - and to scrutiny, and eventually terminated two years later after Defendants allegedly failed to engage her in the interactive process and accommodate her. Such conduct is not sufficiently outrageous to establish a prima facie case for IIED. 9311454.1 KE045-025 34 Michael Zelman Taylor M. Prainito Re: Meet and Confer Letter Regarding Demurrer and Motion to Strike on behalf of Kern Medical Center Foundation June 29, 2020 Page 8 Moreover, Plaintiff’s IIED claim “is precluded by the ‘exclusive remedy’ provision of the Workers” Compensation Act.” (Jenkins v. Family Health Program (1989) 214 Cal.App.3d 440, 449.) Consequently, the tenth cause of action fails to state a claim against the Foundation. XII. THE ELEVENTH CAUSE OF ACTION FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION 17200, £7 SEQ., MUST BE DISMISSED Pursuant to Business and Professions Code, section 17200, “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” Plaintiff alleges vaguely that “Defendants, and each of them, have violated statues and public policy.” (Complaint, § 102.) These alleged violations form the basis of her eleventh cause of action for violation of Business and Professions Code, section 17200 ef seq. Such allegations, however, are insufficient to articulate a claim under the California Unfair Competition Law against the Foundation. As explained above, no employment relationship exists between the Foundation and Plaintiff. (See Section I, supra.) As such, the Foundation could not have violated the FEHA, the Labor Code or public policy as alleged in the Complaint. In the absence of a specific statute or public policy the Foundation is alleged to have violated, the eleventh cause of action must therefore be dismissed. Please let us know if you will agree to dismiss the Foundation, or wish to arrange a telephonic conference at a mutually-agreeable time to meet and confer further. If we do not hear from you, we will proceed with filing a demurrer and motion to strike portions of the Complaint on behalf of the Foundation. Sincerely, LIEBERT CASSIDY WHITMORE /s/ Emanuela Tala I. Emanuela Tala EIT:fg Enclosures: As Stated 9311454.1 KE045-025 35 gr 3157027 wean E ALEDY 8 Secretary of the State of Catia of State ARTICLES OF INCORPORATION OF Jul 212008 KERN MEDICAL CENTER FOUNDATION A California Nonprofit Public Benefit Corporation I NAME The name of the corporation is Kern Medical Center Foundation. II PURPOSE This corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for public and charitable purposes. HI SUPPORTING ORGANIZATION The primary purpose of this corporation is to raise, gather and collect donations and other funding to support the operation, maintenance modernization of the of the healthcare facilities, programs and services at Kern Medical Center, a hospital wholly owned, operated and maintained by the County of Kern, a political subdivision of the State of California, to the end that the greatest amount ot hospital and medical services may be extended to the greatest number of persons served by Kern Medical Center. All proceeds received will be contributed to the County otf Kern or other nonprofit or governmental entities for the benefit of Kern Medical Center. This corporation is organized exclusively for charitable purposes within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986, as amended (“Code”) and section 23701d of the California Revenue and Taxation Code, as amended (“R. & T. Code"). Notwithstanding any other provision of these articles, this corporation shall not, except to an insubstantial degree, engage in any activities or exercise any powers that do not further the purposes of this corporation, and the corporation shall not carry on any other activities not permitted to be carried on by (a) a corporation exempt from federal income tax under section 501(c)(3) of the Code or section 23701d of the R. & T. Code, or (b) a corporation, contributions to which are deductible under section 170(c)}(2) of the Code or section 23701d of the R. & T. Code. 36 Iv AGENT FOR SERVICE OF PROCESS The name and address in Califormia of the corporation=s initial agent for service of process is: Paul J. Hensler 9105 Saint Cloud Lane Bakersfield, California 93311 V TAX EXEMPT STATUS (a) No substantial part of the activities of this corporation shall consist of lobbying or propaganda, or other attempting to influence legislation, except as provided in section 501(h) of the Code, and this corporation shall not participate or intervene in (including publishing or distributing statements) any political campaign on behalf of any candidate for public office except as provided in section 501(h) of the Code. (b) All corporate property is irrevocably dedicated to the purposes set forth in Article Three hereof. No part of the net earnings of this corporation shall inure to the benefit of its directors, trustees, officers, or to any individual. (c) On the winding up and dissolution of this corporation, after paying or adequately providing for the debts and obligations of the corporation, the remaining corporate assets will be distributed to an organization that is organized and operated exclusively for charitable and public benefit purposes and that is tax exempt under section 501(c)(3) of the Code and section 23701d of the R. & T. Code. IN WITNESS WHEREQOF, for the purposes of forming the corporation under the laws of the State of California, the undersigned has executed these Articles of Incorporation this JO07% dayof Jane 2008. Mi Paul J. Hensler Incorporator 37 D. 101, Pt. 4, Ch. 5.5, Refs & Annos, CA HLTH & S D. 101, Pt. 4, Ch. 5.5, Refs & Annos West's Annotated California Codes Health and Safety Code Division 101. Administration of Public Health Part 4. Special Health Authorities Chapter 5.5. Kern County Hospital Authority Act West's Ann.Cal. Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Refs & Annos Currentness Editors' Notes GENERAL NOTES 2017 Main Volume West's Ann. Cal. Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Refs & Annos, CA HLTH & S D. 101, Pt. 4, Ch. 5.5, Refs & Annos Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 38 D. 101, Pt. 4, Ch. 5.5, Art. 1, Refs & Annos, CA HLTH & S D. 101, Pt. 4, Ch. 5.5,... West's Annotated California Codes Health and Safety Code Division 101. Administration of Public Health Part 4. Special Health Authorities Chapter 5.5. Kern County Hospital Authority Act Article 1. General Provisions West's Ann.Cal.Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 1, Refs & Annos Currentness Editors' Notes GENERAL NOTES 2017 Main Volume
West's Ann. Cal. Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 1, Refs & Annos, CA HLTH & SD. 101, Pt. 4, Ch. 5.5, Art. 1, Refs & Annos Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 39 § 101852. Short title; legislative findings and declarations, CA HLTH & S § 101852 West's Annotated California Codes Health and Safety Code (Refs & Annos) Division 101. Administration of Public Health (Refs & Annos) Part 4. Special Health Authorities (Refs & Annos) Chapter 5.5. Kern County Hospital Authority Act (Refs & Annos) Article 1. General Provisions (Refs & Annos) West's Ann.Cal. Health & Safety Code § 101852 § 101852. Short title; legislative findings and declarations Effective: January 1, 2016 Currentness (a) This chapter shall be known, and may be cited, as the Kern County Hospital Authority Act. (b) The Legislature finds and declares all of the following: (1) Kern Medical Center, an acute care hospital currently operated as a constituent department of the County of Kern, is a designated public hospital, as defined in subdivision (d) of Section 14166.1 of the Welfare and Institutions Code, and a critical component of the state's health care safety net. (2) A county is authorized under existing law to integrate its county hospital services with those of other hospitals into a system of community service that offers free choice of hospitals to those requiring hospital care, with the objective of eliminating discrimination or segregation based on economic disability, so that the county hospital and other hospitals in the community share in providing services to paying patients and to those who qualify for care in public medical care programs. However, in anew era of health care delivery, it is necessary to pursue approaches that transition beyond acute care-centric orientations. (3) The ongoing evolution of the health care environment requires public entities providing or arranging health care services to pursue innovative health care delivery models that proactively improve the quality of patient care services and patient experience, efficiently and effectively increase access to needed health care services across the care continuum, provide services in a patient-centered manner, and moderate the rate of growth of health care expenditures. (4) The board of supervisors of the County of Kern has determined that providing access to affordable, high-quality health care services, and ensuring the full engagement and viability of the health care safety net in the county are essential for improving the health status of the people of the County of Kern. To further this imperative, it is necessary that the Kern Medical Center, while continuing as a designated public hospital and maintaining its mission, is provided with an organizational and operational structure that facilitates and improves its ability to function with flexibility, responsiveness, and innovation to promote a patient- centric system of care delivery featuring community-based care. This can best be accomplished by allowing the operation of the Kern Medical Center, along with other health-related resources, under a new hospital authority that is able to pursue efforts towards a delivery system that embraces population health management strategies, is effectively positioned for health plan- provider alignment, and maximizes opportunities for employees and enhancement of staff morale. WESTLAW 40 § 101852. Short title; legislative findings and declarations, CA HLTH & S § 101852 (5) This chapter is necessary to allow the formation of a new political subdivision, a public hospital authority, for the purposes described above. Credits (Added by Stats.2014, c. 613 (A.B.2546), § 3, eff. Jan. 1, 2015. Amended by Stats.2015, c. 790 (A.B.1350), § 1, eff. Jan. 1,2016.) West's Ann. Cal. Health & Safety Code § 101852, CA HLTH & S § 101852 Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW r rigine 41 § 101852.1. Definitions, CA HLTH & S § 101852.1 West's Annotated California Codes Health and Safety Code (Refs & Annos) Division 101. Administration of Public Health (Refs & Annos) Part 4. Special Health Authorities (Refs & Annos) Chapter 5.5. Kern County Hospital Authority Act (Refs & Annos) Article 1. General Provisions (Refs & Annos) West's Ann.Cal. Health & Safety Code § 101852.1 § 101852.1. Definitions Effective: January 1, 2016 Currentness For purposes of this chapter, the following definitions shall apply: (a) “Authority” means the Kern Hospital System Authority established pursuant to this chapter. (b) “Board of supervisors” means the board of supervisors of the County of Kern. (c) “Board of governors” means the governing body of the authority. (d) “County” means the County of Kern. (e) “Enabling ordinance” means the county ordinance enacted by the board of supervisors pursuant to this chapter to establish the authority, as it may be amended from time to time. (f) “Legacy employees” means employees of the county who retired from the medical center prior to the date of transfer of control of the medical center, employees of the county who are initially transferred to the authority on the date of transfer of control of the medical center, and employees first hired by or retired from the authority during the 24-month period following the date of transfer of control of the medical center. (g) “Medical center” means the assets and liabilities comprising the Kern Medical Center, including, without limitation, a licensed acute care hospital and related public health care programs, facilities, care organizations, physician practice plans and delivery systems, which may be hospital-based or nonhospital-based, as specified by the board of supervisors or the authority now or in the future, as the case may be, depending on which entity controls the medical center. (h) “New employees” means employees first hired by the authority after the 24-month period following the date of transfer of control of the medical center. WESTLAW 42 § 101852.1. Definitions, CA HLTH & S § 101852.1 (1) “Transfer of control of the medical center” means the transfer by the county to the authority of the maintenance, operation, management, and personnel of the medical center, whether by lease, transfer of ownership, or other means, as provided by, and subject to, any conditions and limitations specified by the board of supervisors in the enabling ordinance. Credits (Added by Stats.2014, c. 613 (A.B.2546), § 3, eff. Jan. 1, 2015. Amended by Stats.2015, c. 790 (A.B.1350), § 2, eff. Jan. 1,2016.) West's Ann. Cal. Health & Safety Code § 101852.1, CA HLTH & S § 101852.1 Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 43 D. 101, Pt. 4, Ch. 5.5, Art. 2, Refs & Annos, CA HLTH & S D. 101, Pt. 4, Ch. 5.5,... West's Annotated California Codes Health and Safety Code Division 101. Administration of Public Health Part 4. Special Health Authorities Chapter 5.5. Kern County Hospital Authority Act Article 2. Establishment of the Kern County Hospital Authority West's Ann.Cal.Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 2, Refs & Annos Currentness Editors' Notes GENERAL NOTES 2017 Main Volume West's Ann. Cal. Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 2, Refs & Annos, CA HLTH & SD. 101, Pt. 4, Ch. 5.5, Art. 2, Refs & Annos Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 44 § 101853. Authority as public entity; purpose of authority;..., CA HLTH & S § 101853 West's Annotated California Codes Health and Safety Code (Refs & Annos) Division 101. Administration of Public Health (Refs & Annos) Part 4. Special Health Authorities (Refs & Annos) Chapter 5.5. Kern County Hospital Authority Act (Refs & Annos) Article 2. Establishment of the Kern County Hospital Authority (Refs & Annos) West's Ann.Cal.Health & Safety Code § 101853 § 101853. Authority as public entity; purpose of authority; maintenance, operation, management, control, ownership, or lease of medical center; terms and conditions for transfer of authority; agreement to provide indigent care services Effective: January 1, 2016 Currentness (a) Pursuant to this chapter, the board of supervisors may establish by ordinance the Kern County Hospital Authority, which shall be a public agency that is a local unit of government separate and apart from the county and any other public entity for all purposes. The authority established pursuant to this chapter shall file the statement required by Section 53051 of the Government Code, and is a public entity for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code. (b) The purpose of the authority shall be to do all of the following: (1) Provide management, administration, and other controls consistent with this chapter as needed to operate the medical center and maintain its status as a designated public hospital, as defined in subdivision (d) of Section 14166.1 of the Welfare and Institutions Code, and for the operation of additional programs, clinics and other facilities, care organizations, health care service and physician practice plans, and delivery systems that may be affiliated or consolidated with the medical center, to ensure the viability of the health care safety net in the county in a manner consistent with the county's requirements under Section 17000 of the Welfare and Institutions Code. (2) Provide management, administration, and other controls consistent with this chapter to negotiate and enter into contracts to provide or arrange, or provide directly, on a fee-for-service, capitated, or other basis, health care services to individuals including, but not limited to, those covered under Subchapters XVIII (commencing with Section 1395), XIX (commencing with Section 1396), and XXI (commencing with Section 1397aa) of Chapter 7 of Title 42 of the United States Code, those entitled to coverage under private group coverage, private individual coverage, including without limitation, coverage through Covered California, other publicly supported programs, those employed by public agencies or private businesses, and uninsured or indigent individuals. (c) Subject to the requirements of this chapter, the authority shall have, and be charged with, authority for the maintenance, operation, management, control, ownership, or lease of the medical center and other health-related resources, as provided by the enabling ordinance. The State Department of Health Care Services shall take all necessary steps to ensure all of the following: (1) The authority has all of the licenses, permits, and approvals needed to operate the medical center. WESTLAW 45 § 101853. Authority as public entity; purpose of authority;..., CA HLTH & S § 101853 (2) The medical center continues its status as a designated public hospital to at least the same extent as it would be designated in the absence of its transfer to the authority pursuant to this chapter. (3) The authority may participate as a contributing public agency for all of the purposes specified in Section 433.51 of Title 42 of the Code of Federal Regulations, to the extent permitted by federal law. (d) The board of supervisors, in the enabling ordinance, shall establish the terms and conditions of the transfer to the authority from the county, including, but not limited to, all of the following: (1) Any transfer of real and personal property, assets, and liabilities, including, but not limited to, liabilities of the medical center determined and assigned by the county for county funds previously advanced, but not repaid or otherwise recovered, to fund the operations of the medical center. (2) Transfer of employees, including any necessary personnel transition plan, as specified in Section 101853.1, allocation of credit for funded pension assets and responsibility for any unfunded pension liabilities under the Kern County Employees’ Retirement Association, as specified in paragraph (7) of subdivision (g) of Section 101853.1, or other retirement plans, and funding of the accrued benefits of employees of the authority in the event of withdrawal from the plan or dissolution of the authority. Any allocation of credit for funded pension assets and responsibility for any unfunded pension liabilities with respect to the Kern County Employees’ Retirement Association must be approved by its governing board of retirement after consideration of legal and actuarial analysis, and no such allocation may be made that would jeopardize the qualified status of the Kern County Employees’ Retirement Association under the federal Internal Revenue Code. (3) Maintenance, operation, management, control, ownership, or lease of the medical center. (4) Transfer of licenses. (5) Whether funds of the authority shall be deposited in the custody of, and paid out solely through, the county treasurer's office. (6) Any other matters as the board of supervisors deems necessary, appropriate, or convenient for the conduct of the authority's activities. (e)(1) Notwithstanding any other law, a transfer of control of the medical center to the authority may be made, with or without the payment of a purchase price by the authority, and otherwise upon the terms and conditions as found necessary by the board of supervisors and specified in the enabling ordinance to ensure that the transfer will constitute an ongoing material benefit to the county and its residents. (2) A transfer of control of the medical center to the authority shall not be construed as empowering the authority to transfer any ownership interest of the county in any portion of the medical center except as otherwise approved by the board of supervisors. WESTLAW 46 § 101853. Authority as public entity; purpose of authority;..., CA HLTH & S § 101853 (3) The authority shall not transfer the maintenance, operation, management, control, ownership, or lease of the medical center to any other person or entity without the prior written approval of the board of supervisors. This paragraph shall not prevent the county, by ordinance, from allowing the disposal of obsolete or surplus equipment, supplies, or furnishings of the medical center by the authority. (4) With respect to its maintenance, operation, management, control, ownership, or lease of the medical center, the authority shall conform to both of the following requirements: (A) Comply with any applicable requirements of Section 14000.2 of the Welfare and Institutions Code. (B) Comply with any applicable requirements of Section 1442.5. (5) The board of supervisors may retain control of the medical center physical plant and facilities, as specifically provided for in the enabling ordinance or other lawful agreements entered into by the board of supervisors. Any lease agreement between the county and the authority shall provide that county premises shall not be sublet without the approval of the board of supervisors. (6) Notwithstanding any other provision of this chapter, and whether or not accompanied by a change in licensing, the authority's responsibility for the maintenance, operation, management, or control of the medical center, or any ownership or leasehold interest of the authority in the medical center, does not relieve the county of the ultimate responsibility for indigent care pursuant to Section 17000 of the Welfare and Institutions Code. (7) For purposes of Article 12 (commencing with Section 17612.1) of Chapter 6 of Part 5 of Division 9 of the Welfare and Institutions Code, and the definition set forth in subdivision (f) of Section 17612.2 of the Welfare and Institutions Code, the medical center, excluding components that provide predominately public health services, and the county are affiliated governmental entities. (f) The board of supervisors may contract with the authority for the provision of indigent care services on behalf of the county. The contract shall specify that county policies, as may be modified from time to time and consistent with the county's obligations under Section 17000 of the Welfare and Institutions Code, shall be applicable. Notwithstanding any other provision of this chapter, the authority shall not undertake any of the county's obligations under Section 17000 of the Welfare and Institutions Code, nor shall the authority have an entitlement to receive any revenue for the discharge of the county's obligations, without a written agreement with the county. Any contract executed by and between the county and the authority shall provide for the indemnification of the county by the authority for liabilities as specifically set forth in the contract, except that the contract shall include a provision that the county shall remain liable for its own negligent acts. Indemnification by the authority shall not divest the county from its ultimate responsibility for compliance with Section 17000 of the Welfare and Institutions Code. (g) Unless otherwise agreed to by the authority and the board of supervisors or as otherwise provided by this chapter, an obligation of the authority, statutory, contractual, or otherwise, shall be the obligation solely of the authority and shall not be the obligation of the county or any other entity, and any contract executed by and between the county and the authority, or any other entity and the authority, shall contain a provision that liabilities or obligations of the authority with respect to its activities pursuant to the contract shall be the liabilities or obligations of the authority and shall not be or become the liabilities or obligations of the county or the other entity, respectively. An obligation of the authority, statutory, contractual, or otherwise, shall not be the obligation of the state. WESTLAW 47 § 101853. Authority as public entity; purpose of authority;..., CA HLTH & S § 101853 (h) The authority shall not be a “person” subject to suit under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code). (i) The authority is not subject to the jurisdiction of a local agency formation commission pursuant to the Cortese-Knox- Hertzberg Local Government Reorganization Act of 2000 (Division 3 (commencing with Section 56000) of Title 5 of the Government Code), or any successor statute. (j) The authority is a “district” within the meaning set forth in the County Employees Retirement Law of 1937 (Chapter 3 (commencing with Section 31450) of Part 3 of Division 4 of Title 3 of the Government Code). Employees of the authority are eligible to become members or maintain membership, as applicable, in the Kern County Employees’ Retirement Association, to the extent described in subdivision (g) of Section 101853.1. (k) Any determination with respect to the manner in which the authority qualifies as a governmental plan sponsor under Section 414(d) of the Internal Revenue Code I" shall be limited to relevant employee benefits purposes of that code only, and shall not change or otherwise modify the authority's status as a public agency that is a local unit of government for other purposes specified in this chapter. Credits (Added by Stats.2014, c. 613 (A.B.2546), § 3, eff. Jan. 1, 2015. Amended by Stats.2015, c. 303 (A.B.731), § 333, eff. Jan. 1, 2016; Stats.2015, c. 790 (A.B.1350), § 3, eff. Jan. 1, 2016.) Footnotes 1 Internal Revenue Code sections are in Title 26 of the U.S.C.A. West's Ann. Cal. Health & Safety Code § 101853, CA HLTH & S § 101853 Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 48 § 101853.1. Personnel transition plan; employee benefits;..., CAHLTH & S §... West's Annotated California Codes Health and Safety Code (Refs & Annos) Division 101. Administration of Public Health (Refs & Annos) Part 4. Special Health Authorities (Refs & Annos) Chapter 5.5. Kern County Hospital Authority Act (Refs & Annos) Article 2. Establishment of the Kern County Hospital Authority (Refs & Annos) West's Ann.Cal.Health & Safety Code § 101853.1 § 101853.1. Personnel transition plan; employee benefits; labor and employment relations; retirement plan Effective: September 14, 2018 Currentness (a) In exercising its powers to employ personnel, the authority shall implement, and the board of supervisors shall adopt, a personnel transition plan. The personnel transition plan shall require all of the following: (1) Ongoing communication to employees and recognized employee organizations regarding the impact of the transition on existing medical center, county, and other health care facility employees and employee classifications. (2) Meeting and conferring with representatives of affected bargaining unit employees on both of the following issues: (A) A timeframe for which the transfer of personnel shall occur. (B) Specified periods of time during which county or medical center employees affected by the establishment of the authority may elect to be considered for appointment and exercise reinstatement rights, if applicable, to funded, equivalent, vacant county positions for which they are qualified and eligible. An employee who first elects to remain with the county may subsequently seek reinstatement with the authority within 30 days of the election to remain with the county and shall be subject to the requirements of this article. (3) Acknowledgment that the authority, to the extent permitted by federal and state law, and consistent with paragraph (3) of subdivision (d), shall be bound by the terms of those memoranda of understanding executed between the county and its exclusive employee representatives that are in effect on the date of the transfer of control of the medical center to the authority. Subsequent memoranda of understanding with exclusive employee representatives shall be subject to approval only by the board of governors. (4) Communication to the Board of Retirement of the Kern County Employees' Retirement Association or other retirement plan of any personnel transition plan, memoranda of understanding, or other arrangements that are related to the participation of the authority's employees or the addition of new employees in the retirement plan. (b) Implementation of this chapter shall not be a cause for the modification of the medical center or county employment benefits. Employees of the medical center or county on the date of transfer, who become authority employees, shall retain their existing WESTLAW 49 § 101853.1. Personnel transition plan; employee benefits;..., CAHLTH & S §... or equivalent classifications and job descriptions upon transfer to the authority, comparable pension benefits (if permissible pursuant to relevant plan terms), and their existing salaries and other benefits that include, but are not limited to, accrued and unused vacation, sick leave, personal leave, health care, retiree health benefits, and deferred compensation plans. The transfer of an employee from the medical center or county shall not constitute a termination of employment for purposes of Section 227.3 of the Labor Code, or employee benefit plans and arrangements maintained by the medical center or county, except as otherwise provided in the enabling ordinance or personnel transition plan, nor shall it be counted as a break in uninterrupted employment for purposes of Section 31641 of the Government Code with respect to the Kern County Employees’ Retirement Association, or state service for purposes of the Public Employees’ Retirement System (Part 3 (commencing with Section 20000) of Division 5 of Title 2 of the Government Code). (c) Subject to applicable state law, the authority shall recognize the exclusive employee representatives of those authority employees who are transferred from the county or medical center to the authority pursuant to this chapter. (d) In order to stabilize labor and employment relations and provide continuity of care and services to the people of the county, and notwithstanding any other law, the authority shall do all of the following for a period of 24 months after the effective date of the transfer of control of the medical center to the authority: (1) Continue to recognize each exclusive employee representative of each bargaining unit. (2) Continue to provide the same level of employee benefits to authority employees, whether the obligation to provide those benefits arises out of a memorandum of understanding, or other agreement or law. (3) Extend and continue to be bound by any existing memoranda of understanding covering the terms and conditions of employment for employees of the authority, including the level of wages and benefits, and any county rules, ordinances, or policies specifically identified and incorporated by reference in a memoranda of understanding for 24 months or through the term of the memorandum of understanding, whichever is longer, unless modified by mutual agreement with each of the exclusive employee representatives. The authority shall continue to provide those pension benefits specified in any memoranda of agreement as long as doing so does not conflict with any Kern County Employees' Retirement Association plan provisions, or federal or state law including the County Employees Retirement Law of 1937 (Chapter 3 (commencing with Section 31450) of Part 3 of Division 4 of Title 3 of the Government Code and the federal Internal Revenue Code). If a memoranda of understanding is expired on the date of the transfer of control of the medical center, then the authority shall continue to be bound by the terms and conditions of the most recent memoranda of understanding, unless modified by a mutual agreement with each of the exclusive employee representatives, and the benefits and wages of transferred employees shall be retained consistent with subdivision (b). (4) Meet and confer with the exclusive employee representatives to develop processes and procedures to address employee disciplinary action taken against permanent employees. If the authority terminates, suspends, demotes, or reduces the pay of a permanent employee for disciplinary reasons, those actions shall only be for cause consistent with state law, and an employee shall be afforded applicable due process protections granted to public employees under state law. Permanent employees laid off by the authority within six months of the date of the transfer of control of the medical center shall remain on the county reemployment list for two years. Inclusion on the county reemployment list is not a guarantee of reemployment. For the purposes of this paragraph, the term “permanent employees” excludes probationary employees, temporary employees, seasonal employees, provisional employees, extra help employees, and per diem employees. WESTLAW 50 § 101853.1. Personnel transition plan; employee benefits;..., CAHLTH & S §... (5) To the extent layoffs occur, and provided that all other previously agreed upon factors are equal, ensure that seniority shall prevail. The authority shall meet and confer with the exclusive employee representatives to address layoff procedures and the manner in which, and the extent to which, seniority shall be measured for employees who transfer from the medical center or county. (e) Permanent employees of the medical center or county on the effective date of the transfer of control of the medical center to the authority, shall be deemed qualified for employment in equivalent positions at the authority, and no other qualifications shall be required except as otherwise required by state or federal law. Probationary employees on the effective date of the transfer, as set forth in this paragraph, shall retain their probationary status and rights and shall not be required to serve a new probationary period or extend their probationary period by reason of the transfer. To the extent possible, employees who transfer to equivalent positions at the authority shall retain their existing classifications and job descriptions, but if there is a dispute over this issue, the authority agrees to meet and confer with the exclusive employee representatives of the transferred employees. (f) Employees who transfer from the medical center or county to the authority shall retain the seniority they earned at the medical center or county and any benefits or privileges based on the seniority. (g) Notwithstanding any other law, except as provided in subdivision (h), employees of the authority may participate in the Kern County Employees’ Retirement Association, operated pursuant to the County Employees Retirement Law of 1937 (Chapter 3 (commencing with Section 31450) of Part 3 of Division 4 of Title 3 of the Government Code) as set forth below. However, the authority and employees of the authority, or certain designated parts thereof, shall not participate in the Kern County Employees’ Retirement Association if the board of retirement, in its sole discretion, determines that their participation could jeopardize the Kern County Employees’ Retirement Association's tax-qualified or governmental plan status under federal law, or if a contract or related contract amendment proposed by the authority contains any benefit provisions that are not specifically authorized by Chapters 3 (commencing with Section 31450) and 3.9 (commencing with Section 31899) of Part 3 of Division 4 of Title 3 of the Government Code or Article 4 (commencing with Section 7522) of Chapter 21 of Division 7 of Title 1 of the Government Code, and that the board determines would adversely affect the administration of the system. There shall not be any individual employee elections regarding participation in the Kern County Employees’ Retirement Association or other retirement plans except to the extent such retirement plans provide for elective employee salary deferral contributions in accordance with federal Internal Revenue Code rules. (1) Employees transferred from the county or medical center to the authority who are subject to a memorandum of understanding between the authority and an exclusive employee representative, as described in paragraphs (2) and (3) of subdivision (d), and who were members of the Kern County Employees’ Retirement Association at the time of their transfer of employment, shall continue to be a member of the Kern County Employees' Retirement Association, retaining service credit earned to the date of transfer, to the extent provided for in the applicable memorandum of understanding. (2) Employees transferred from the county or medical center to the authority who are subject to a memorandum of understanding between the authority and an exclusive employee representative, as described in paragraphs (2) and (3) of subdivision (d), and who were not members of the Kern County Employees’ Retirement Association at the time of their transfer of employment, shall subsequently become a member of the Kern County Employees’ Retirement Association only to the extent provided for in the applicable memorandum of understanding. (3) Employees transferred from the county or medical center to the authority who are not subject to a memorandum of understanding between the authority and an exclusive employee representative, as described in paragraphs (2) and (3) of WESTLAW 51 § 101853.1. Personnel transition plan; employee benefits;..., CAHLTH & S §... subdivision (d), and who were members of the Kern County Employees’ Retirement Association at the time of their transfer of employment, shall continue to be a member of the Kern County Employees’ Retirement Association, retaining service credit earned to the date of transfer, as provided in the enabling ordinance or the personnel transition plan. (4) Employees transferred from the county or medical center to the authority who are not subject to a memorandum of understanding between the authority and an exclusive employee representative, as described in paragraphs (2) and (3) of subdivision (d), and who were not members of the Kern County Employees’ Retirement Association at the time of their transfer of employment, shall subsequently become a member of the Kern County Employees’ Retirement Association only to the extent provided in the enabling ordinance or the personnel transition plan. (5) Employees hired by the authority on or after the effective date of the transfer of control of the medical center shall become a member of the Kern County Employees' Retirement Association only to the extent provided in the enabling ordinance or personnel transition plan described in subdivision (a), or, if subject to a memorandum of understanding between the authority and an exclusive employee representative as described in paragraphs (2) and (3) of subdivision (d), to the extent provided for in the applicable memorandum of understanding. (6)(A) Notwithstanding any other law, for purposes of California Public Employees’ Pension Reform Act of 2013 (Article 4 (commencing with Section 7522) of Chapter 21 of Division 7 of Title 1 of the Government Code), an individual who was employed by the county or the medical center when it was a constituent department of the county, and is a member of the Kern County Employees’ Retirement Association or the Public Employees’ Retirement System, as set forth in Part 3 (commencing with Section 20000) of Division 5 of Title 2 of the Government Code or a member prior to January 1, 2013, and who transfers, directly or after a break in service of less than six months, to the authority, in which the individual continues to be a member of either the Kern County Employees’ Retirement Association or the Public Employees’ Retirement System, as applicable, shall not be deemed to be a new employee or a new member within the meaning of Section 7522.04 of the Government Code, and shall continue to be subject, immediately after the transfer, to the same defined benefit formula, as defined in Section 7522.04 of the Government Code, and plan of replacement benefits offered by the county pursuant to Section 31899.4 of the Government Code and the Kern County Replacement Benefits Plan for retirement benefits limited by Section 415 of Title 26 of the United States Code. (B) For purposes of subdivision (c) of Section 7522.43 of the Government Code, the authority shall be treated as a public employer that offered a plan of replacement benefits prior to January 1, 2013. The county's plan of replacement benefits that was in effect prior to January 1, 2013, is deemed to also be the authority's replacement plan for the sole purpose of allowing the authority to continue to offer the plan of replacement benefits, immediately after the transfer, for Kern County Employees’ Retirement Association members who meet both of the following requirements, and the qualifying survivors or beneficiaries of those members: (1) The employee was employed as of January 1, 2013, by the county or the medical center when it was a constituent department of the county. (ii) The employee is part of a member group to which the county offered a plan of replacement benefits prior to January 1, 2013. (7)(A) Notwithstanding any other law, legacy employees shall be deemed to be county employees for purposes of participation in a benefit plan administered by the Kern County Employees’ Retirement Association, but only for that purpose, and shall not be employees of the county for any other purpose. Upon the transfer of control of the medical center and thereafter, the county shall WESTLAW 52 § 101853.1. Personnel transition plan; employee benefits;..., CAHLTH & S §... include legacy employees in a special county employee group for which the county has primary financial responsibility to fund all employer contributions that, together with contributions by employees and earnings thereon, are necessary to fund all benefits for legacy employees administered by the Kern County Employees' Retirement Association, notwithstanding the fact that, following the transfer of control of the medical center, the authority shall commence making periodic employer contributions for legacy employees. In the event the authority fails to make required employer contributions for legacy employees when due and after demand from the Kern County Employees’ Retirement Association, the county, after receipt of notice and demand from the Kern County Employees’ Retirement Association, shall be obligated to make those contributions in place of the authority. (B) The authority shall be primarily responsible for any employer contributions that, together with contributions by employees and earnings thereon, are necessary to fund all benefits for new employees. In the event the authority fails to make required contributions for new employees, the county shall be obligated to make the required contributions after receipt of notice and demand from the Kern County Employees’ Retirement Association. The county shall maintain this obligation for new employees until the authority demonstrates, and the Kern County Employees’ Retirement Association's Board of Retirement determines, that the authority is sufficiently capable financially to fully assume the obligation to make all employer contributions for new employees, based upon the standard of financial capability approved by the Kern County Employees' Retirement Association and the county in a plan of participation, and incorporated within a written agreement between the county and the authority. In the event the authority fails to make required contributions for any new employees due to the authority's dissolution or bankruptcy, the county shall be obligated to make the required contributions after receipt of notice and demand from the Kern County Employees' Retirement Association. (h) Subject to the provisions of subdivision (g) granting the Board of Retirement of the Kern County Employees’ Retirement Association the sole discretion to exclude the authority or employees of the authority from the Kern County Employees’ Retirement Association if the board determines that their participation could jeopardize the association's tax-qualified or governmental plan status under federal law, an employee hired by the authority on or after the operative date of the act adding this subdivision shall be a member of the Kern County Employees’ Retirement Association, except as modified in an applicable memorandum of understanding. (i) This chapter does not prohibit the authority from contracting with the Public Employees’ Retirement System, in accordance with the requirements of Section 20508 and any other applicable provisions of Part 3 (commencing with Section 20000) of Division 5 of Title 2 of the Government Code, for the purpose of providing employee participation in that system, or from establishing an alternative or supplemental retirement system or arrangement, including, but not limited to, deferred compensation arrangements, to the extent permitted by law and subject to any applicable agreement between the authority and the exclusive employee representatives, and as provided in the enabling ordinance or the personnel transition plan. Notwithstanding any other law, the authority and employees of the authority shall not participate in the Public Employees Retirement System if the Board of Administration of the Public Employees’ Retirement System, in its sole discretion, determines that their participation could jeopardize the Public Employees’ Retirement System's tax-qualified or governmental plan status under federal law, or if a contract or related contract amendment proposed by the authority contains any benefit provisions that are not specifically authorized by Part 3 (commencing with Section 20000) of Division 5 of Title 2 of the Government Code, and that the board determines would adversely affect the administration of the system. (j) Provided that this is not inconsistent with anything in this chapter, this chapter does not prohibit the authority from determining the number of employees, the number of full-time equivalent positions, job descriptions, the nature and extent of classified employment positions, and salaries of employees. WESTLAW 53 § 101853.1. Personnel transition plan; employee benefits;..., CAHLTH & S §... Credits (Added by Stats.2014, c. 613 (A.B.2546), § 3, eff. Jan. 1, 2015. Amended by Stats.2015, c. 303 (A.B.731), § 334, eff. Jan. 1, 2016; Stats.2015, c. 790 (A.B.1350), § 4, eff. Jan. 1, 2016; Stats.2016, c. 86 (S.B.1171), § 193, eff. Jan. 1, 2017; Stats.2018, c. 53 (S.B.866), § 39, eff. June 27, 2018; Stats.2018, c. 405 (S.B.846), § 7, eff. Sept. 14,2018.) West's Ann. Cal. Health & Safety Code § 101853.1, CA HLTH & S § 101853.1 Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 D. 101, Pt. 4, Ch. 5.5, Art. 3, Refs & Annos, CA HLTH & S D. 101, Pt. 4, Ch. 5.5,... West's Annotated California Codes Health and Safety Code Division 101. Administration of Public Health Part 4. Special Health Authorities Chapter 5.5. Kern County Hospital Authority Act Article 3. Board of Governors West's Ann.Cal.Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 3, Refs & Annos Currentness Editors' Notes GENERAL NOTES 2017 Main Volume West's Ann. Cal. Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 3, Refs & Annos, CA HLTH & SD. 101, Pt. 4, Ch. 5.5, Art. 3, Refs & Annos Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 55 § 101854. Appointment; adoption of bylaws; conflict of..., CA HLTH & S § 101854 West's Annotated California Codes Health and Safety Code (Refs & Annos) Division 101. Administration of Public Health (Refs & Annos) Part 4. Special Health Authorities (Refs & Annos) Chapter 5.5. Kern County Hospital Authority Act (Refs & Annos) Article 3. Board of Governors (Refs & Annos) West's Ann.Cal.Health & Safety Code § 101854 § 101854. Appointment; adoption of bylaws; conflict of interest; liability Effective: January 1, 2015 Currentness (a) The authority established pursuant to this chapter shall be governed by a board of governors that is appointed, both initially and continually, by the board of supervisors. The board of supervisors, in the enabling ordinance, shall specify the number of members and the composition of membership of the board of governors, the qualifications for individual members, the manner of appointment, selection, or removal of board of governors members, their terms of office, and all other matters that the board of supervisors deems necessary or convenient for the conduct of the board of governors. Notwithstanding any other law, at the board of supervisors' discretion and as specified in the enabling ordinance, the board of governors may consist entirely of members of the board of supervisors or may include any number of the members of the board of supervisors or county officers or employees appointed to represent the interest of the county. (b) The board of supervisors, either during or after the formation of the authority, may modify the number, length of terms, qualifications, method of appointment, and provisions for all other matters pertaining to the board of governors by subsequent ordinance. (c) The board of supervisors shall adopt bylaws for the authority that, among other things, shall specify the officers of the board of governors, the time, place, and conduct of meetings, and other matters that the board of supervisors deems necessary or appropriate to conduct the authority's activities. The bylaws shall be operative upon approval by a majority vote of the board of supervisors, but may be amended, from time to time, by a majority vote of the board of supervisors. (d) Notwithstanding any other law, a member of the board of governors shall not be deemed to be interested in a contract entered into by the authority within the meaning of Article 4 (commencing with Section 1090) of Chapter 1 of Division 4 of Title 1 of the Government Code if either of the following apply: (1) The contract is between the authority and the county or an agency of the county, and the member is also a member of the board of supervisors, or is a county officer or employee appointed to represent the interests of the county. (2) All the following applies to the member: (A) The member was appointed to represent the interests of physicians, health care practitioners, hospitals, pharmacies, or other health care organizations, or beneficiaries. WESTLAW 56 § 101854. Appointment; adoption of bylaws; conflict of..., CA HLTH & S § 101854 (B) The contract authorizes the member or the organization the member represents to provide services to beneficiaries under the authority's programs. (C) The contract contains substantially the same terms and conditions as contracts entered into with other individuals or organizations that the member was appointed to represent. (D) The member does not influence or attempt to influence the hospital authority or another member of the authority to enter into the contract in which the member is interested. (E) The member discloses the interest to the authority and abstains from voting on the contract. (F) The board of governors notes the member's disclosure and abstention in its official records and authorizes the contract in good faith by a vote of its membership sufficient for the purpose without counting the vote of the interested member. (e) Members of the board of governors shall not be vicariously liable for injuries caused by the act or omission of the authority to the extent that protection applies to members of governing boards of local public entities generally under Section 820.9 of the Government Code. (f) The board of governors created and appointed pursuant to this chapter is a duly constituted governing body as the term is used in Section 1250 and defined in Section 70035 of Title 22 of the California Code of Regulations. (g) In the event of a change of license ownership, the board of governors shall comply with the obligations of governing bodies of general acute care hospitals generally as set forth in Section 70701 of Title 22 of the California Code of Regulations, as currently written or subsequently amended, as well as the terms and conditions of the license. The authority shall be the responsible party with respect to compliance with these obligations, terms, and conditions. Credits (Added by Stats.2014, c. 613 (A.B.2546), § 3, eff. Jan. 1, 2015.) West's Ann. Cal. Health & Safety Code § 101854, CA HLTH & S § 101854 Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 57 D. 101, Pt. 4, Ch. 5.5, Art. 4, Refs & Annos, CA HLTH & S D. 101, Pt. 4, Ch. 5.5,... West's Annotated California Codes Health and Safety Code Division 101. Administration of Public Health Part 4. Special Health Authorities Chapter 5.5. Kern County Hospital Authority Act Article 4. Powers and Duties of the Authority West's Ann.Cal.Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 4, Refs & Annos Currentness Editors' Notes GENERAL NOTES 2017 Main Volume West's Ann. Cal. Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 4, Refs & Annos, CA HLTH & SD. 101, Pt. 4, Ch. 5.5, Art. 4, Refs & Annos Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 58 § 101855. Additional enumerated powers; conformance with..., CA HLTH & S § 101855 West's Annotated California Codes Health and Safety Code (Refs & Annos) Division 101. Administration of Public Health (Refs & Annos) Part 4. Special Health Authorities (Refs & Annos) Chapter 5.5. Kern County Hospital Authority Act (Refs & Annos) Article 4. Powers and Duties of the Authority (Refs & Annos) West's Ann.Cal.Health & Safety Code § 101855 § 101855. Additional enumerated powers; conformance with requirements; meetings; records; peer review; public employees Effective: January 1, 2016 Currentness (a) Subject to any terms, conditions, and limitations as may be imposed by the enabling ordinance, the authority, in addition to any other powers granted pursuant to this chapter, shall have the following powers: (1) To have the duties, privileges, immunities, rights, liabilities, and limitations of a local unit of government within the state. (2) To have perpetual existence, subject to Article 5 (commencing with Section 101856). (3) To adopt, have, and use a seal, and to alter it at its pleasure. (4) To sue and be sued in the name of the authority in all actions and proceedings in all courts and tribunals of competent jurisdiction. (5) To purchase, lease, trade, exchange, or otherwise acquire, maintain, hold, improve, mortgage, lease, sell, and dispose of real and personal property of any kind necessary or convenient to perform its functions and fully exercise its powers. (6) To appoint and employ or otherwise engage a chief executive officer and other officers and employees that may be necessary or appropriate, including legal counsel, to establish their compensation, provide for their health, retirement, and other employment benefits, and to define the power and duties of officers and employees. (7)(A) To incur indebtedness and to borrow money and issue bonds evidencing the same, including the authority to issue, from time to time, notes and revenue bonds in principal amounts that the authority determines to be necessary to provide sufficient funds for achieving any of its purposes, including, but not limited to, assumption or refinancing of debt service for capital projects eligible for Medi-Cal supplemental payments pursuant to Section 14085.5 of the Welfare and Institutions Code, or any successor or modified Medi-Cal debt service reimbursement program, the payment of principal and interest on notes and bonds of the authority, the establishment of reserves to secure those notes and bonds, and all other expenditures of the authority incident to and necessary or convenient to carry out its purposes and powers. WESTLAW 59 § 101855. Additional enumerated powers; conformance with..., CA HLTH & S § 101855 (B) Any notes, bonds, or other securities issued, and the income from them, including any profit from the sale thereof, shall at all times be free from taxation by the state or any agency, political subdivision, or instrumentality of the state. (C) Notwithstanding the provisions of subparagraph (A), for any indebtedness, notes, bonds, or other securities that require voter approval pursuant to state law, the prior approval of the board of supervisors shall be required. Notwithstanding the required prior approval of the board of supervisors and except as otherwise provided in this chapter, any indebtedness incurred, or notes, bonds, or other securities issued pursuant to this subparagraph shall be the indebtedness, notes, bonds, or securities of the authority and not of the county, and the credit of the county shall not be pledged or relied upon in any manner in order to incur the indebtedness, or issue the notes, bonds, or other securities, unless the board of supervisors explicitly authorizes the use of the county's credit. The authority shall reimburse the county for all costs associated with the county's consideration of the indebtedness, notes, bonds, or securities, and the authority shall defend, indemnify, and hold harmless the county from any and all liability, costs, or expenses arising from or related to the indebtedness, notes, bonds, or securities. (D) Nothing in this section shall preclude the authority from repayment of its debts or other liabilities, using funds that are not otherwise encumbered. (8) To pursue its own credit rating. (9) To enter into one or more contracts or agreements consistent with this chapter and other applicable laws of this state, including, but not limited to, contracting with any public or private entity or person for management or other services and personnel, and to authorize the chief executive officer to enter into contracts, execute all instruments, and do all things necessary or convenient in the exercise of the powers granted in this chapter. (10) To purchase supplies, equipment, materials, property, and services. (11) To establish policies relating to its purposes. (12) To acquire or contract to acquire, rights-of-way, easements, privileges, and property, and to construct, equip, maintain, and operate any and all works or improvements wherever located that are necessary, convenient, or proper to carry out any of the provisions, objects, or purposes of this chapter, and to complete, extend, add to, repair, or otherwise improve any works or improvements acquired by it. (13) To participate in, contract for, and to accept, gifts, grants, and loans of funds, property, or other aid or finance opportunity in any form from the federal government, the state, a state agency, or other source, or combination thereof, as otherwise would be available to a public, government, or private entity, and to comply, subject to this chapter, with the terms and conditions thereof. (14) If not otherwise required pursuant to the enabling ordinance to deposit its funds in the county treasury, the authority may establish its own treasury, invest surplus money in its own treasury, manage investments, and engage third-party investment managers, in accordance with state law. WESTLAW 60 § 101855. Additional enumerated powers; conformance with..., CA HLTH & S § 101855 (15) To arrange for guarantees or insurance of its bonds, notes, or other obligations by the federal or state government or by a private insurer, and to pay the premiums thereof. (16) To engage in managed care contracting, joint ventures, affiliations with other health care facilities, other health care providers and payers, management agreements, or to participate in alliances, purchasing consortia, health insurance pools, accountable care organizations, alternative delivery systems, or other cooperative arrangements, with any public or private entity. (17) To enter into joint powers agreements pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code. Notwithstanding any other law, the authority may enter into a joint powers agreement as described in Section 6523.5 of the Government Code as though that section applied to hospitals and other health care facilities in the County of Kern. (18) To establish nonprofit, for-profit, or other entities necessary to carry out the duties of the authority. (19) To elect to transfer funds to the state and incur certified public expenditures in support of the Medi-Cal program and other programs for which federal financial participation is available. (20) To use a computerized management information system, including an electronic health records system, in connection with its operations, including, without limitation the administration of its facilities. (21) To request that the board of supervisors levy a tax on behalf of the authority. If the board of supervisors approves the proposal to levy the tax, it shall call the election to seek voter approval and place the appropriate measure on the ballot for that election. The proceeds of these taxes shall be tax proceeds of the authority and not of the county. The authority shall reimburse the county for all costs associated with the county's consideration of those taxes, and shall defend, indemnify, and hold harmless the county from any liability, costs, or expenses arising from or related to the imposition of these taxes. (22) Notwithstanding the provisions of this chapter relating to the obligations and liabilities of the authority, or any other law, the authority shall have the same rights, privileges, exemptions, preferences, and authority of a county with respect to owning, operating, and providing coverage and services through hospitals, clinics and other health facilities, health programs, care organizations, physicians and physician practice plans, delivery systems, health care service plans, and other provider types and coverage mechanisms. (23) To engage in other activities that may be in the best interests of the authority and the persons served by the authority, as determined by the board of governors, in order to respond to changes in the health care industry. (b) The authority shall conform to the following requirements: (1)(A) Be a government agency that is a local unit of government separate and apart for all purposes from the county and any other public entity, and shall not be considered to be an agency, division, or department of the county or any other public entity. The authority shall not be governed by or subject to the civil service requirements of the county. Notwithstanding any other law, except as otherwise provided for in the enabling ordinance enacted pursuant to this chapter, and as set forth in Section 101853.1 WESTLAW 61 § 101855. Additional enumerated powers; conformance with..., CA HLTH & S § 101855 relating to the personnel transition plan, the authority shall not be governed by, or subject to, other policies or operational rules applicable to the county, the medical center prior to its transfer, or any other public entity, including, but not limited to, those relating to personnel and procurement. (B) The board of governors shall adopt written rules, regulations, and procedures with regard to basic human resource functions not inconsistent with memoranda of understanding covering employees represented by employee organizations or the provisions of this chapter. Until the time that the board of governors adopts its own rules, regulations, or procedures with regard to these functions, the existing rules, regulations, and procedures set forth in any memoranda of understanding described in Section 101853.1, and the rules and regulations adopted by the county and described in paragraph (4), shall continue to apply. (2) Be subject to state and federal taxation laws that are applicable to public entities generally. (3) Except as otherwise specifically provided in this chapter, comply with the Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code), the Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code). (4) Be subject to the jurisdiction of the Public Employment Relations Board. Until the authority adopts rules and regulations pursuant to subdivision (a) of Section 3507 of the Government Code, the existing rules adopted by the county and contained in the county's employer-employee relations resolution, as amended, shall apply, modified to account for the creation of the authority, and provided further that the resolution shall not contain any incorporation of the county's civil service rules or county ordinances unless specifically addressed in this chapter. (5) Carry professional and general liability insurance or programs to the extent sufficient to cover its activities. (6) Comply with the requirements of Sections 53260 and 53261 of the Government Code. (7) Maintain financial and accounting records. (8) Meet all local, state, and federal data reporting requirements. (c)(1) Subject to any restrictions applicable to public agencies, and subject to any limitations or conditions set forth in the enabling ordinance adopted by the board of supervisors, the authority may borrow money from the county, repay debt it owes to the county, and use the borrowed funds to provide for its operating and capital needs. The county may lend the authority funds and may issue debt instruments, including, without limitation, revenue anticipation notes to obtain funds to provide, by loan or otherwise, amounts necessary for the authority to meet its operating and capital needs. (2) Notwithstanding paragraph (1), nothing in this chapter shall be construed to limit the borrowing powers the county otherwise has under law for the purposes specified in paragraph (1) or any other purposes. WESTLAW 62 § 101855. Additional enumerated powers; conformance with..., CA HLTH & S § 101855 (d) Open sessions of the authority shall constitute official proceedings authorized by law within the meaning of Section 47 of the Civil Code. The privileges set forth in that section with respect to official proceedings shall apply to open sessions of the authority. (e)(1) Notwithstanding any other law, the board of governors or board of supervisors, as applicable, may order that a meeting held solely for the purpose of discussion or taking action on authority trade secrets, as defined in subdivision (d) of Section 3426.1 of the Civil Code, or to consider and take action on matters pertaining to contracts and contract negotiations concerning all matters related to rates of payment for health care services arranged or provided by the authority, shall be held in closed session. Trade secrets for purposes of this chapter shall also include information for which the secrecy of the information is necessary for the authority to initiate a new service, program, marketing strategy, business plan, or technology, or to add a benefit or product, and premature disclosure of the trade secret would create a substantial probability of depriving the authority of a substantial economic benefit or opportunity. (2) The requirements of making a public report of actions taken in closed session and the vote or abstention of every member present may be limited to a brief general description devoid of the information constituting the trade secret or concerning the matters related to rates of payment. (3) Those records of the authority or board of supervisors, as applicable, that reveal the authority's trade secrets are exempt from disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), or any similar local law requiring the disclosure of public records. This exemption shall apply for a period of two years after the service, program, marketing strategy, business plan, technology, benefit, or product that is the subject of the trade secret is formally adopted by the governing body of the authority, provided that the service, program, marketing strategy, business plan, technology, benefit, or product continues to be a trade secret. The board of governors or board of supervisors, as applicable, may delete the portion or portions containing trade secrets from any documents that were finally approved in the closed session that are provided to persons who have made the timely or standing request. (4) This chapter shall not prevent the board of governors or board of supervisors, as applicable, from meeting in closed session as otherwise provided by law. (f) Notwithstanding any other law, those records of the authority and of the county that reveal the authority's rates of payment for health care services arranged or provided by the authority or its deliberative processes, strategies, discussions, communications, or any other portion of the negotiations with providers of health care services or Medi-Cal, health care plans, or other payers for rates of payment, shall not be required to be disclosed pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), or any similar local law requiring the disclosure of public records. However, three years after a contract or amendment to a contract is fully executed, the portion of the contract or amendment containing the rates of payment shall be open to inspection. (g) The authority shall be a public agency that is a local unit of government for purposes of eligibility with respect to grants and other funding and loan guarantee programs. Contributions to the authority shall be tax deductible to the extent permitted by state and federal law. Nonproprietary income of the authority shall be exempt from state income taxation. (h) Unless otherwise provided by the board of supervisors by way of resolution, the authority is empowered, or the board of supervisors is empowered on behalf of the authority, to apply as a public agency for one or more licenses for the provision of WESTLAW 63 § 101855. Additional enumerated powers; conformance with..., CA HLTH & S § 101855 health care or the operation of a health care service plan pursuant to statutes and regulations governing licensing as currently written or subsequently amended. (1) The statutory authority of a board of supervisors to prescribe rules that authorize a county hospital to integrate its services with those of other providers into a system of community service that offers free choice of hospitals to those requiring hospital care, as set forth in Section 14000.2 of the Welfare and Institutions Code, shall apply to the authority and the board of governors. (§)(1) Except as otherwise provided in this chapter, provisions of the Evidence Code, the Government Code, including the Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), the Civil Code, the Business and Professions Code, and other applicable law pertaining to the confidentiality of peer review activities of peer review bodies shall apply to the peer review activities of the authority, or any peer review body, as defined in paragraph (1) of subdivision (a) of Section 805 of the Business and Professions Code, formed pursuant to the powers granted to the authority. The laws pertaining to the confidentiality of peer review activities shall be together construed as extending, to the extent permitted by law, the maximum degree of protection of confidentiality. (2) Notwithstanding Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, and Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of, the Government Code, or any other provision of law, any peer review body formed pursuant to the powers granted to the authority, may, at its discretion and without notice to the public, meet in closed session, so long as the purpose of the meeting is the peer review body's discharge of its responsibility to evaluate and improve the quality of care rendered by health facilities and health practitioners. The peer review body and its members shall receive, to the fullest extent, all immunities, privileges, and protections available to those peer review bodies, their individual members, and persons or entities assisting in the peer review process, including those afforded by Section 1157 of the Evidence Code and Section 1370. Peer review proceedings shall constitute an official proceeding authorized by law within the meaning of Section 47 of the Civil Code and those privileges set forth in that section with respect to official proceedings shall apply to peer review proceedings of the authority. (3) Notwithstanding the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), or Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of, and Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of, the Government Code, or any other provision of state or local law requiring disclosure of public records, those records of a peer review body formed pursuant to the powers granted to the authority, shall not be required to be disclosed. The records and proceedings of the peer review body and its individual members shall receive, to the fullest extent, all immunities, privileges, and protections available to those records and proceedings, including those afforded by Section 1157 of the Evidence Code and Section 1370 of the Health and Safety Code. (4) If the authority is required by law or contractual obligation to submit to the state or federal government peer review information or information relevant to the credentialing of a participating provider, that submission shall not constitute a waiver of confidentiality. (5) Notwithstanding any other law, Section 1461 shall apply to hearings on reports of hospital medical audit or quality assurance committees. (k) Except as expressly provided by other provisions of this section, all exemptions and exclusions from disclosure as public records pursuant to this chapter and the California Public Records Act, including, but not limited to, those pertaining to trade secrets and information withheld in the public interest, shall be fully applicable to the authority, and for the board of supervisors, WESTLAW 64 § 101855. Additional enumerated powers; conformance with..., CA HLTH & S § 101855 and all state and local agencies with respect to all writings that the authority is required to prepare, produce, or submit, and which shall not constitute a waiver of exemption from disclosure. (/) The authority and the county, or any combination thereof, may engage in marketing, advertising, and promotion of the medical and health care services made available to the community by the authority. (m)(1) The board of supervisors may contract for services or purchase items on behalf of the authority. (2) Unless otherwise provided for, and subject to the limitations and conditions set forth in the enabling ordinance, the board of governors shall have authority over procurement and contracts for the authority and shall adopt written rules, regulations, and procedures with regard to these functions. The authority's ability to contract for personnel or other services and items it deems necessary, appropriate, or convenient for the conduct of its activities consistent with its purposes shall only be limited by the provisions in this chapter and obligations under the Meyers-Milias-Brown Act (Chapter 10 (commencing with Section 3500) of Division 4 of Title 1 of the Government Code). (3) Contracts by and between the authority and a public agency, and contracts by and between the authority and providers of health care, goods, or services, may be let on a nonbid basis and shall be exempt from Chapter 2 (commencing with Section 10290) of Part 2 of Division 2 of the Public Contract Code. (n) The authority may contract with the county for services and personnel upon mutually agreeable terms. (0) Notwithstanding Article 4.7 (commencing with Section 1125) of Chapter 1 of Division 4 of Title 1 of the Government Code, related to incompatible activities, Section 1099 of the Government Code, related to incompatible offices, or any other law, a member of the authority's administrative staff shall not be considered to hold an incompatible office or to be engaged in activities inconsistent and incompatible with his or her duties as a result of his or her employment or affiliation with the county or an agency of the county. (p) The board of governors and the officers and employees of the authority are public employees for purposes of Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, relating to claims and actions against public entities and public employees, and shall be protected by the immunities applicable to public entities and public employees governed by Part 2 (commencing with Section 814) of Division 3.6 of Title 1 of the Government Code, except as provided by other statutes or regulations that apply expressly to the authority. Credits (Added by Stats.2014, c. 613 (A.B.2546), § 3, eff. Jan. 1, 2015. Amended by Stats.2015, c. 303 (A.B.731), § 335, eff. Jan. 1, 2016; Stats.2015, c. 790 (A.B.1350), § 5, eff. Jan. 1, 2016.) West's Ann. Cal. Health & Safety Code § 101855, CA HLTH & S § 101855 Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 65 § 101855.1. Transfer of control of medical center;..., CAHLTH & S §... West's Annotated California Codes Health and Safety Code (Refs & Annos) Division 101. Administration of Public Health (Refs & Annos) Part 4. Special Health Authorities (Refs & Annos) Chapter 5.5. Kern County Hospital Authority Act (Refs & Annos) Article 4. Powers and Duties of the Authority (Refs & Annos) West's Ann.Cal.Health & Safety Code § 101855.1 § 101855.1. Transfer of control of medical center; authorized actions Effective: January 1, 2016 Currentness (a) Transfer of control of the medical center, whether or not the transfer includes the surrendering by the county of the existing general acute care hospital license and corresponding application for a change of ownership of the license, shall not affect the eligibility of the county to undertake, and shall authorize the authority, subject to applicable requirements, to do any of the following: (1) With the written consent of the county, participate in and receive allocations pursuant to the California Health Care for Indigents Program pursuant to Chapter 5 (commencing with Section 16940) of Part 4.7 of Division 9 of the Welfare and Institutions Code, or similar programs, as may be identified or earmarked by the county in support of uncompensated services of the type provided by the medical center. (2) With the written consent of the county, participate in and receive allocations of local revenue fund amounts provided pursuant to Chapter 6 (commencing with Section 17600) of Part 5 of Division 9 of the Welfare and Institutions Code as may be identified or earmarked by the county in support of health care services of the type provided by the medical center to low- income individuals. (3) Participate in the financing of, as applicable, and receive, Medicaid disproportionate share hospital payments available to a county hospital or designated public hospital, or any other successor or modified payment or funding that is intended to assist hospitals that serve a disproportionate share of low-income patients with special needs. The allocation of Medicaid disproportionate share hospital payments shall be made in consultation with the State Department of Health Care Services and other designated safety net hospitals. (4) Participate in the financing of, as applicable, and receive, Medi-Cal payments and supplemental reimbursements, including, but not limited to, payments made pursuant to Sections 14105.96, 14105.965, 14166.4, 14182.15, and 14199.2 of the Welfare and Institutions Code, payments described in paragraph (4) of subdivision (b) of Section 14301.4 of, and Section 14301.5 of, the Welfare and Institutions Code, and payments made available to a county provider or designated public hospital, or governmental entity with which it is affiliated, under any other successor or modified Medicaid payment system. (5) Participate in the financing of, as applicable, and receive, safety net care pool funding, stabilization funding, delivery system reform incentive pool payments, and any other funding available to a county provider or designated public hospital, or governmental entities with which it is affiliated under the Medicaid demonstration project authorized pursuant to Article 5.2 WESTLAW 66 § 101855.1. Transfer of control of medical center;..., CAHLTH & S §... (commencing with Section 14166) and Article 5.4 (commencing with Section 14180) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, or under any other successor or modified Medicaid demonstration project or Medicaid payment system. The allocation of safety net care pool funds shall be made in consultation with the State Department of Health Care Services and other designated safety net hospitals. (6) Participate in the financing, administration, and provision of services under the Low Income Health Program authorized pursuant to Part 3.6 (commencing with Section 15909) of Division 9 of the Welfare and Institutions Code, or under any other successor or modified Medicaid demonstration project or Medicaid payment system if the authority enters into an agreement with the county concerning the provision of services by, and payment for these services to, the county. (7) Participate in and receive direct grant and payment allocations pursuant to Article 5.230 (commencing with Section 14169.50) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, or under any other successor or modified direct grant and payment systems funded by hospital or other provider fee assessments. (8) Receive Medi-Cal capital supplements pursuant to Section 14085.5 of the Welfare and Institutions Code, or any other successor or modified Medi-Cal debt service reimbursement program. Notwithstanding any other law, supplemental payments shall be made to the medical center under those programs for the debt service costs incurred by the county, and, if applicable, by the authority to the extent that debt service responsibility is refinanced, transferred to, or otherwise assumed by, directly or indirectly, the authority. (9) Receive any other funds, or preference in the assignment of health care plan enrollees, that would otherwise be available to a county health plan, provider, or designated public hospital, or governmental entity with which it is affiliated. (b) The transfer of control of the medical center to the authority pursuant to this chapter shall not otherwise disqualify the county or the authority from participating in any of the following: (1) Local, state, and federal funding sources either specific to county or other publicly owned or operated health care service plans, hospitals, or other health care providers, including, but not limited to, ambulatory care clinics, health systems, practices, designated public hospitals, or governmental entities with which they are affiliated, for which there are special provisions specific to those plans, hospitals, ambulatory care clinics, health systems, practices, other health care providers or governmental entities with which they are affiliated. (2) All funding programs in which the county, by itself or on behalf of the medical center had participated prior to the creation of the authority, or would otherwise be qualified to participate in had the authority not been created, and the maintenance, operation, management, control, ownership, or lease of the medical center not been transferred to the authority pursuant to this chapter. Credits (Added by Stats.2014, c. 613 (A.B.2546), § 3, eff. Jan. 1, 2015. Amended by Stats.2015, c. 303 (A.B.731), § 336, eff. Jan. 1, 2016; Stats.2015, c. 790 (A.B.1350), § 6, eff. Jan. 1, 2016.) West's Ann. Cal. Health & Safety Code § 101855.1, CA HLTH & S § 101855.1 Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. WESTLAW 67 § 101855.1. Transfer of control of medical center;..., CAHLTH & S §... End of Document ©2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 68 3 D. 101, Pt. 4, Ch. 5.5, Art. 5, Refs & Annos, CA HLTH & S D. 101, Pt. 4, Ch. 5.5,... West's Annotated California Codes Health and Safety Code Division 101. Administration of Public Health Part 4. Special Health Authorities Chapter 5.5. Kern County Hospital Authority Act Article 5. Dissolution of the Authority West's Ann.Cal. Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 5, Refs & Annos Currentness Editors' Notes GENERAL NOTES 2017 Main Volume West's Ann. Cal. Health & Safety Code D. 101, Pt. 4, Ch. 5.5, Art. 5, Refs & Annos, CA HLTH & SD. 101, Pt. 4, Ch. 5.5, Art. 5, Refs & Annos Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 69 § 101856. Disposition of assets, obligations, and liabilities;..., CA HLTH & S § 101856 West's Annotated California Codes Health and Safety Code (Refs & Annos) Division 101. Administration of Public Health (Refs & Annos) Part 4. Special Health Authorities (Refs & Annos) Chapter 5.5. Kern County Hospital Authority Act (Refs & Annos) Article 5. Dissolution of the Authority (Refs & Annos) West's Ann.Cal.Health & Safety Code § 101856 § 101856. Disposition of assets, obligations, and liabilities; ordinance rescinded Effective: January 1, 2016 Currentness (a) The board of supervisors may find and declare that the authority shall cease to exist. In that event, the board of supervisors shall provide for the disposition of the authority's assets, obligations, and liabilities, which may include the transfer to the county of the medical center and other operations, or specified components of the medical center and other operations, through ordinance, resolution, or other action. Alternatively, the board of supervisors may order the board of governors to develop a plan of dissolution providing for the disposition of all of the assets and liabilities of the authority, which shall be subject to approval by the board of supervisors. Absent written agreement, or as otherwise provided in this chapter, the county shall not be obligated under any law to assume the authority's obligations or liabilities, or take title to, or custody or control of, the authority's assets. (b) Upon the disposition of the liabilities of the authority and distribution of any remaining assets, as applicable, the board of supervisors shall rescind the ordinance that established the authority, and the authority shall cease to exist. The board of supervisors shall notify the State Department of Health Care Services 30 days prior to the effective date of the dissolution, and include in the notice whether the county intends for either or both, or specified components of, the medical center or other operations to be transferred to the county upon the effective date of dissolution of the authority. Credits (Added by Stats.2014, c. 613 (A.B.2546), § 3, eff. Jan. 1, 2015. Amended by Stats.2015, c. 790 (A.B.1350), § 7, eff. Jan. 1,2016.) West's Ann. Cal. Health & Safety Code § 101856, CA HLTH & S § 101856 Current with urgency legislation through Ch. 706 of the 2019 Reg.Sess. Some statute sections may be more current, see credits for details. End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW 70 Li eb er t Ca ss id y W h i t m o r e A Pr of es si on al La w Co rp or at io n 6 0 3 3 W e s t C e n t u r y B o u l e v a r d , St h Fl oo r Lo s A n g e l e s , Ca li fo rn ia 9 0 0 4 5 ~N O N o e A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 6033 West Century Boulevard, Sth Floor, Los Angeles, California 90045. On July 6, 2020, I served the foregoing document(s) described as DEFENDANT KERN MEDICAL CENTER FOUNDATION’S NOTICE OF DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF I. EMANUELA TALA IN SUPPORT THEREOF in the manner checked below on all interested parties in this action addressed as follows: Michael Zelman Taylor M. Prainito Southern California Labor Law Group, PC 1875 Century Park East, Suite 480 Los Angeles, CA 90067 telephone: (424) 231-2366 facsimile: (323) 319-5148 email: mzelman @scllgpc.com tprainito @scllgpc.com M (BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy through Liebert Cassidy Whitmore’s electronic mail system from fguerra@Icwlegal.com to the email address(es) set forth above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Executed on July 6, 2020, at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. /s/ Frances Guerra Frances Guerra Proof of Service 71 9317003.1 KE045-025 