SHAW v. S.C. (THC-ORANGE COUNTY, INC.)

Petitioner’s Answer Brief on the Merits

Cal.February 13, 2015

S$C221530 DEBORAH SHAW, Plaintiffand Petitioner, vs. SUPERIOR COURT OF THE STATE OF CALIFORNIA,””” Respondent; THC—ORANGECOUNTY,INC., KINDRED HEALTHCARE OPERATING,INC., KINDRED HOSPITALS WEST, LLC, KINDRED HEALTHCARE,INC., and JEFFREY SOPKO, Real Parties in Interest. COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION 3 CASE No. B254958 ANSWERBRIEFONTHE MERITS CARNEYR. SHEGERIAN, ESQ., STATE BAR No.150461 ANTHONY NGUYEN,ESQ., STATE BAR NO. 259154 SHEGERIAN & ASSOCIATES,INC. 225 SANTA MONICA BOULEVARD,SUITE 700 SANTA MONICA, CALIFORNIA 90401 TELEPHONE: (310) 860-0770 ¢ FACSIMILE: (310) 860-0771 E-MAIL: CShegerian@Shegerianlaw.com ATTORNEYSFOR PLAINTIFF/PETITIONER, DEBORAH SHAW $C221530 IN THE SUPREME COURT OF CALIFORNIA DEBORAH SHAW, Plaintiffand Petitioner, VS. SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent; THC—ORANGECOUNTY,INC., KINDRED HEALTHCARE OPERATING, INC., KINDRED HOSPITALS WEST, LLC, KINDRED HEALTHCARE,INC., and JEFFREY SOPKO, Real Parties in Interest. COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION 3 CASE No. B254958 ANSWERBRIEF ON THE MERITS CARNEY R. SHEGERIAN, ESQ., STATE BAR No. 150461 ANTHONY NGUYEN, ESQ., STATE BARNo. 259154 SHEGERIAN & ASSOCIATES,INC. 225 SANTA MONICA BOULEVARD,SUITE 700 SANTA MONICA, CALIFORNIA 90401 TELEPHONE: (310) 860-0770 © FACSIMILE: (310) 860-0771 E-MAIL: CShegerian@Shegerianlaw.com ATTORNEYS FOR PLAINTIFF/PETITIONER, DEBORAH SHAW TABLE OF CONTENTS Page INTRODUCTION AND SUMMARYOF ARGUMENT...............--- 1 LT. The Issues oo... ceecceccccece cee eceecceeeas cee secre sseeeneceesevessanenanensas 3 Tl. Answersto the Issues ..............cceecccesee eee e eee eeeeeees eee eeeeeeenees 3 A. The Court of Appeal Did Not Err by Reviewing Plaintiff's Right to a Jury by Extraordinary Writ, Rather than Appeal.....................- 3 B. There Is a Right to Jury Tnal on a Retaliation Cause of Action Under Health and Safety Code § 1278.5. 00.....cceceeeteteeeceteeeteeeteeeeee 4 STATEMENT OF THE CASE o000.......cccecccceesseeescere scene ceraeseteeeeeseeente 5 i. Shaw Was Employed by RealParties in Interest................. Ss Il Shaw Was Fired in Retaliation...eeeOD Il. Shaw Does Not Seek Equitable Relief...........0000000.eee 6 IV. Shaw DemandsJury Trial. ..00.0..c2ecceeseeceseeeeeesereteeeenereeees 6 V. The Trial Court Denied a Jury Trial...ee6 VI. The Second District Properly Considered the Petition. 0.2...cece cece cecceceeceeeeeteeeescnees sees eeeseeesaeeaeeeneseneeees 7 VII. There Is a Right to Jury Trial Under § 1278.5... 7 ARGUMENT 0. .0.cccccccccsccessccescesceeeceeeeeseeatacntneceeseeeeseeeteecesteceseeasneeeasy 8 I. THE COURT OF APPEAL DID NOT ERR BY REVIEWING PLAINTIFF’S RIGHT TO A JURY BY EXTRAORDINARY WRIT, RATHER THAN APPEAL.000000.....cceecccecee cette ce eeeeeneeetes 8 A. The Modem View of Express Jurisdiction .................. 9 B. The Nessbit Holding Has Been Properly and Consistently Ignored. ...0.....02..ccceceeee ceceeet 11 C. The Reasoning in WNessbit Has Been Questioned by Other Supreme Courts. ............0000.0... 14 D. Nessbit Was Implicitly Overruled by This COULE. occce cee ceee cee eeceeeeeeeeeeen cere eeeceauessentesevresernaees iS E. Nessbit Should Be Expressly Overruled.................... 16 There Is a Right to Jury Trial on a Retaliation Cause of Action Under Health and Safety Code § 1278.5...ceeeeeceeeters 17 G. §1278.5’s Pre-Amendment Equitable Remedies ...0........ccccccceeceeseeeeeeescneeceeeneeeseeeesseenestenseeees 18 H. § 1278.5 Was Amended to Include Common-Law Damages, as is Evident from a Clear, Plain Reading ofthe Statute. ........0000000000.... 19 I. Broad Remedies Are Supported by the Legislative HIStory........2.......00.:cccccsseee ceceteens 21 J. New Remedies Are Not Restricted to EQUItY. 02.0.2 ececceee eee eeececeeeceeteceeeeeneeeeeteesnnsenereeeeneaeenes 23 K. There Is a Constitutional Right to a Jury Tradocccece ee eeee cece eneeceseeetneeeeeeeeseesseevauseeeeeenaneey 23 L. Statutory Causes of Action May Be Tried Before a Fury. oc... cc eee ceeccee cece ce eesceeeeeeesseeeeeneeneeenens 24 ii M. Employees Had Action at Law in 1850.00.00. 27 N. Jury Trial Is Required Because Shaw Waived Her Equitable Claims. ........00....00...eeee 29 O. The Court Is Not Acting as a Chancellor. ................. 31 § 1278.5 Is Not Restricted to Administrative Relied. oo. o.ceccccceccceeecccecececeneeceseecsceeeeeneeeseeeseeessenenees 33 Q. Ambiguities Are to Be Resolved in Favor of Jury Triad.oecece eececee eee eee tee cence see eeteeeneeeeeseneenaas 36 CONCLUSION.ccsssccssccsecsssenssessevesienssesisessenenesesuessneeseanseuee 37 Hi TABLE OF AUTHORITIES Page Cases Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280....9, 10, 13 Accardi v. Superior Court (1993) 17 Cal_App.4th 341 oo..33 Agarwalv. Johnson (1979) 25 Cal.3d 932.0020...eee32 Anderson v. Superior Court (1989) 213 Cal.App.3d 1321 .......0.......... 8 Asare v. Hartford Fire Ins. Co. (1991) 1 Cal.App.4th 856.000.0000. 32 Bishop v. Anderson (1980) 101 Cal.App.3d 821oo.36 Bishop v. San Jose (1969) 1 Cal.3d 56.0... ceccceceeeeeseeeee ceceences 20 Budde v. Superior Court (1950) 97 Cal.App.2d 615.00... 11 Byram v. Superior Court (1977) 74 CalApp.3d 648«000.0... passim Campbell v. Regents of University of California (2005) 35 Cal4th S11cececee ceseeceseeceeeeeeeececaeenreseesseesneeeneeeeats 30, 35 Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry (1990) 494 U.S. 558 ooo. ceceeee cee eeeeeeccceee cee etseeetereeseeetee 24, 25, 30 Church of Scientology v. Wollersheim (1996) 42 CalApp.4th 628 oo...cece ccceecceeccceeeeeeseeeeenn seen eesuecseeeeseeeeens 23 City ofRedondo Beach v. Kumnick (1963) 216 Cal.App.2d B30 once ccc cecce cece cesseesceneesceescoeeacerascaseecaeseeceeseeresaersaeveseneeseeeeseneaees il Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d Qo... ccceccccceeeecce cece ececeeceeeeeeeeeeseeeeeveeeeerseeeneeeats 20, 35 iv County of Sacramento v. Superior Court (1974) 42 CalApp.3d 135 .o..cccccccccecceececccceessceeeeeesceece eres seeeseeeessenseeensnes 32 Cowlin v. Pringle (1941) 46 Cal.App.2d 472.000... 11 Crouchman v. Superior Court (1988) 45 Cal.3d 1167............. 4,15, 17 Dalis v. Buyer Advertising, Inc. (1994) 418 Mass. 220 ..0000... 29 Department of Motor Vehicles v. Industrial Acc. Com. (1939) 14 Cal.2d 189.cece cece eee eceeee sneer ste eesereeneeneneeerees 22 DiPirro v. Bondo Corp. (2007) 153 Cal.App-4th 150_...00..00....... 24, 25 Donohue v. Superior Court (1892) 93 Cal. 252 oo...eee 3,9, 13 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379oooccce cece sce ce secre teeea sees seesnueeannenaee 23 Enyeart v. Board ofSupervisors (1967) 66 Cal.2d 728 0.00... 20 Fahlen v. Sutter Central Valley Hospitals (2014) 38 Cal.4th O55 occ cccc cence cnceceteecseeecseenesneeeeeseeesssacsaeeesseeesseeessneeseeneaeens passim Freedland v. Greco (1955) 45 Cal.2d 462 -.....0...0eeseeesceetceete tenes 22 Gann v. Williams Bros. Realty, Inc. (1991) 231 Cal.App.3d L698 ooocceccecesccceeeneeeesacerseneecesaseeessaeeeenecaaeseseeecssnecseeensenensaneeass 16 Ginns vy. Savage (1964) 61 Cal.2d 520 oo...ccceee eect eeee eeeeetes 30 Grafton Partners vy. Superior Court (2005) 36 Cal.4th 9444, 15, 16, 17 Hasson v. Ford Motor Company (1982) 32 Cal.3d 388.......000..002...... 13 Heim v. Houston (1976) 60 CalApp.3d 770 0000... ceeceeeccereetteteee 24 Honore v. Superior Court (1969) 70 Cal.2d 162 00.0... 8 Hopev. California Youth Authority (2005) 134 Cal_App.4th STooceccacecesceccecsssesesenscececeesseeceacecseeeaeeceaeeeeseeeeeteesuserssrenteseenens 17, 20 In re Banschbach (1958) 133 Mont. 312.00004,14 Interactive Multimedia Artists v. Superior Court (1998) 62 CalApp.4th 1546 ooceeeee ceeeececcs cece ceec ene ee ete eenecensaceatenenenees 28 Iwekaogwuv. City of Los Angeles (1999) 75 Cal.App.4th BOB nce cecccccescececcccseceeseneescseesseessaceeaereeetecseecoseecsaseessaeeseessaeesseeeaes 33 Jacobyv. New York (1942) 315 U.S. 752.00...cecececeeect 36 Jehl v. Southern Pac. Co. (1967) 66 Calb.2d 821wee13 Knight v. Superior Court (1950) 95 Cal.App.2d 838 ............. 3,11, 12 Loftyv. Southern Pacific Co. (1954) 129 Cal.App.2d 459.0... 23 Mallarino v. Superior Court (1953) 115 Cal.App.2d 781 .......0......... 1] Martin v. County ofLos Angeles (1996) 51 CalApp.4th 688............ 24 Nessbitv. Superior Court (1931) 214 Cal.Looepassim Owens v. Superior Court (1959) 52 Cal.2d 822.0000 8 Pacific Tel. & Tel. Co. v. Superior Court (1968) 265 CalApp.2d 3702... .cccccccecceecece eee ereeeee cece cee tenes en eeneeenneeneneenseney 16 Parkway, Inc. v. United States Fire Ins. Co. (1943) 314 M&S.647......00...ccccccecceeeene ee ce eceeceseeeeeeeeeseeee sence sereaaeysesneeeeresenenees 31 People v. Leiva (2013) 56 Cal4th 498 oooceceeetetree 31 Philpott v. Superior Court (1934) 1 Cal.2d 512.0000 5, 8, 26 Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d QBS oc cccccsseesccnesesensseneceneessecscenesaeesseececeeseuessaeessqueesenerseeeseeeeseees 34 Vi Raedeke v. Gibraltar Sav. & Loan Ass’n (1974) 10 Cal.3d GOS oc eccccce ccc ccc cecscecssnsescesssneenssceeaeessteeateeesseessesessseeeseeestecerteeesteees 29 Ripling v. Superior Court (1952) 112 Cal.App.2d 399.0... 30 Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517 ......... 4,12 Silva y. Superior Court (1993) 14 CalApp.4th 562.0000 8 Sullivan v. LTV Aerospace & Defense Co. (W.D. NLY. 1994) 850 F.Supp. 202 oo... cee ceceeceeeeeeeeeeeneeeeeeeeesneeeennesseneeenees 32 Tamenyv. Atlantic Richfield Co. (1980) 27 Cal.3d 167.0... 30 Tull v. United States (1987) 481 U.S. 412.00ceceetree 26 Turlock Golf etc. Club v. Superior Court (1966) 240 CalApp.2d 693 ooo.ccceccccecsece sec ceeeeeeeeeceseee see eeseneeneeeenerenee 4.11, 15 Union Oil Co. of California v. Hane (1938) 27 Cal_App.2d LOG ooocce cece cceeceenseecceeeeseaeesueraeecsceceseeseeneesersuseesssueesesessenanaees li Van de Kamp v. Bank ofAmerica (1988) 2014 Cal_App.3d B19cececcc cee ceecccesceneeceeneceeeenaesacaneeeseeceececscseeeaeeseeaeaeeeeas 13, 23 Villano v. Waterman Convalescent Hosp., Inc. (2010) 181 CalApp.4th 1189 oo.cece cec ces ccee eee ee tee caceeceseeetseeeseceesereeenees 13 Winston v. Superior Court (1987) 196 Cal.App.4th 600......0..0..... 4,12 Wysinger v. Automobile Club ofSouthern California (2007) 157 CalApp.4th 413 occcece cece ee cecce ce seeeeseeeeseesseceeteceeaees 20 Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028... 32 Young v. Haines (1986) 41 Cal.3d 883.0000eee31 Zhao v. Wong (1996) 48 CalApp4th 1114.00.23 Vi Statutes Code of Civil Procedure§ 592 oo...ceceeeece eee escceeeseneennensenaeees 27 Government Code § 946.6.0....0....cccccccccececcccceceee eee ceeeeeeceeneneeenseeteenetes 32 Government Code §§ 12900-12996oe.20, 34, 35 Health and Safety Code § 1278.5 .......oeeecececcesceeeceeeeteeeneereteeees passim Labor Code § 98.7 ooo.ccccececcceceeeseeeneeeeseeaeseeeeseeeeseneseeeeeessaeee 34, 36 Labor Code § 1328.000..0...0ccccccccccccccescceesseneceeecceeeeeeeeeteeeeressteeeeneerees 3D Treatises 2 Witkin, California Procedure (3rd ed.), Jurisdiction ...........0.0..0.2-.. 10 7 Witkin, California Procedure (4th ed. 1997), Trial... 27 7 Witkin, California Procedure (Sth ed. 2008), Trial .........000.0.0000.... 26 James, Fleming, Jr., "Right to a Jury Trial in Civil Actions,” 72 Yale L.J. (1962-1963) oo...cececee cee cen eee cee ee teeta neteseeeensene 27 Minton, Michael B., Right to Jury Trial Under the Age Discrimination Employment Act (1978) 43 Missouri Law Review 250.........ccccecceceecceeeseesseceeceeeeeae cate eneeeesseeesseseeeneees 28 Salmond, J. W., and Heuston, R.S.V., The Lawof Torts (VO5T) oo cece ccc ceccecscceeceeeeseeeae ca eeee teas coserssseeesseresenesenneeseseesueeesnenserens 28 Wegner, efal., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2013) ..0..0.0....eeccesceee teeters 26 Constitutional Provisions Vill California Constitution, Article I, § 16.00.00...eeeeeeceeeeeeeeeeeeeees 23 ix $C221530 IN THE SUPREME COURT OF CALIFORNIA DEBORAH SHAW, Plaintiffand Petitioner, VS. SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent; THC—ORANGECOUNTY,INC., KINDRED HEALTHCARE OPERATING,INC., KINDRED HOSPITALS WEST, LLC, KINDRED HEALTHCARE,INC., and JEFFREY SOPKO, Real Parties in Interest. ANSWERBRIEF ON THE MERITS INTRODUCTION AND SUMMARY OF ARGUMENT This is an action for compensatory damages by an employee whose employment was wrongfully terminated and whosuffered re- taliation pursuant to Health and Safety Code section 1278.5 and for damages for wrongful employment termination in violation of public policy. Shawdoesnot seek reinstatement. The Court of Appeal properly granted extraordinary relief be- cause the Superior Court denied Deborah Shaw a jury trial on her damages arising under section 1278.5, creating a high probability that judicial resources would be wasted by a secondtrial. Although a jury trial had been demanded, respondent, Superior Court, concluded that a cause of action under section 1278.5 1s equita- ble, denied a jury trial for that cause of action, and stayed trial to allowthe filing of the petition on the certified issue, which it believes “is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.” The Court of Appeal, Second Appellate District, Division Three, granted a writ of mandate on the bases of (1) Byram v. Superior Court (1977) 74 Cal._App.3d 648 (wnt appropriate to correct inadvertent fail- ure to post jury fees) and (2) the fact that, because plaintiff does not seek equitable relief, section 1278.5(g) allows common-law legal rem- edies, which are to be decided by jury. This Court granted a Petition for Review and requested briefing on the propriety of review by extraordinary writ and the rightto jury trial under Health and Safety Code section 1278.5. This Answer Brief on the Merits explains that (1) the extraor- dinary relief is proper because the rule in Nessbit v. Superior Court (1931) 214 Cal. 1, is no longer good law and has long been implicitly overruled, and (2) plaintiff is entitled to a jury trial on the issue of I K common-law compensatory damages under section 1278.5. I. The Issues This case presents the followingissues: (1) Did the Court of Appeal err by reviewingplaintiff's nght to a jury by writ of mandate, rather than appeal? See Nessbit, 214 Cal. 1. (2) Is there a nght to jury trial on a retaliation cause of action under Health and Safety Code section 1278.5? It. Answers to the Issues A. The Court of Appeal Did Not Err by Reviewing Plaintiff's Right to a Jury by Extraerdinary Writ, Rather than Appeal. The clear modem view is that refusal to allow a jury tral in a proper proceedingis an act in excess ofjurisdiction and extraordinary relief will lie to prevent a trial by the court. The 1931 holding in . Nessbit, 214 Cal. 1, and the 1892 holding in Donohue v. Superior Court (1892) 93 Cal. 252, refusing to allow mandamus to compel a jury trial, while never expressly overruled, have long been inconsistent with the Supreme Court’s views on the meaning and scope of the doctrine of acts in excess ofjurisdiction. The holding in Nessbit generally has been ignored by numerous Courts of Appeal, in particular in Knight v. Superior Court (1950) 95 Cal_App.2d 838, 839- 840; Turlock Golfetc. Club v. Superior Court (1966) 240 Cal_App.2d 693, 699; Byram, supra, 74 Cal.App.3d at 654; Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517, 522-523; and Winston v. Superior Court (1987) 196 Cal.App.4th 600, 603. It has also been questioned as of doubtful validity by the Montana Supreme Court in In re Banschbach (1958) 133 Mont. 312. Nessbit was implicitly overruled by the California Supreme Court decisions in Crouchmanv. Superior Court (1988) 45 Cal.3d 1167 (considering merits of writ petition concerning right to jury trial from small claims appeal), and Grafton Partners v. Superior Court (2005) 36 Cal.4th 944 (reviewing merits of writ ofprohibition concemming jury waivers). Nessbit has not been good authority for decades. Accordingly, this Court should expressly overrule Nessbit. B. There Is a Right to Jury Trial on a Retaliation Cause of Action Under Health and Safety Code § 1278.5. Relief was properly granted because section 1278.5 was amend- ed in 2007 to enlarge the available remedies by adding “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.” The plain lan- guage of the amendment adds common-law damagesto the remedies. Shaw does not seek any equitable relief. The “gist” of plaintiff's ac- tion is purely legal, not equitable. The Court of Appeal properly granted extraordinaryrelief. Entitlement to a jury tral for legal dam- ages under section 1278.5 fulfills the legislative purposes behind the whistle-blower enactment and provides substantive meaning to this Court’s decision in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, which real parties in interest ignore. A jury trial is available because, “If the action is mot one in equity, it follows, of course,that it is an action at law.” Philpott v. Superior Court 1934) 1 Cal.2d 512, 517. Shawhasa right to a jury tnal. STATEMENT OF THE CASE I. Shaw Was Employed by Real Parties in Interest. Shaw was employed byreal parties in interest’s health care facil- ity. Plaintiff complained to defendants about conditions that affected the quality of care and services at defendants’ health care facility. In particular, plaintiff complained that defendants were employing as health care professionals individuals who were not licensed or certi- fied. Plaintiff also complained to defendants that they employed health care professionals who had not properly completed their com- petencies. (Opn., pp. 2-3.) Il. Shaw WasFired in Retaliation. in retaliation for her complaints, defendants discriminated against plaintiff by issuing her a warning, taking adverse employmentactions against her, and then terminating her employment. (Opn., p. 3.) Shawalleges that, as a result of defendants’ conduct, she has suf- fered and continues to suffer past and future monetary losses, losses of _ benefits, emotional damages, andphysical injury. (Opn., p. 3.) Ill. Shaw Does Not Seek Equitable Relief. On October 17, 2012, plaintiff filed her Amended Complaint against real parties, alleging two causes of action: damages pursuant to Health and Safety Code section 1278.5 and damages for wrongful employment termination in violation ofpublic policy. (FAC, pp. 1-6.) Shaw did not seek reinstatement. Instead, the prayer for the section 1278.5 cause of action demand- ed, inter alia, “compensatory and emotional distress damages accord- ing to proof.” Theprayer does not request any equitable relief. IV. Shaw Demands Jury Trial. Plaintiffdemanded a jury trial. V. The Trial Court Denied a Jury Trial. On March6, 2014, petitioner and real parties in interest simultane- ously filed briefs on the availability of a jury trial under section 1278.5. On March 10, 2014, the issue of a jury trial was argued. Respondent Court then concluded that a cause of action under section 1278.5 is equitable, denied a jury trial for that cause of action, and stayed trial until April 1, 2014, to allow the wnit petition. (Opn., pp. 3-5.) VI. The Second District Properly Considered the Petition. The clear modern view is that refusal to allow a jury trial in a proper proceeding is an act in excess ofjurisdiction andthat extraordi- nary relief will lie to preventa trial by the court. The 1931] holding in Nessbit, 214 Cal. 1, refusing to allow mandamus to compel a jury trial, while never expressly overruled, has long been inconsistent with the Supreme Court’s views on the meaning and scope ofthe doctrine of acts in excess ofjurisdiction. Specifically, Nessbit has not been good authority for decades. This Court should expressly overrule Nessbit. VII. There Is a Right to Jury Trial Under § 1278.5. Plaintiff's Complaint seeks compensatory damages, including damages for emotional distress and physical injuries. Such damages are traditionally recoverable in employment actions. These damages were tried to a jury at commonlaw. The Second District properly granted relief because section 1278.5 was amended in 2007 to enlarge the available remedies by adding “any remedy deemed warranted by the court pursuantto this chapter or any other applicable provision of statutory or common law.” The “gist” of plaintiff's action is purely legal, not equitable. She does not seek reinstatement. The amendment clearly adds com- mon-law damagesto the available remedies. “If the action 1s nor one in equity, it follows, of course, that it is an action at law.” Philpott, | Cal.2d at 517. It therefore follows that a jury trial is available under subdivision (g). Entitlement to a jury trial for legal damages under section 1278.5 fulfills the legislative purposes behind the whistle-blower enactment and provides substantive meaning to this Court’s decision in Fahien, 58 Cal.4th 655. Asis explained below,the district court was correct. ARGUMENT I. THE COURT OF APPEAL DID NOT ERR BY REVIEWING PLAINTIFF’S RIGHT TO A JURY BY EXTRAORDINARY WRIT, RATHER THAN APPEAL. The clear modern view ofall courts is that refusal to allow a jury trial in a proper proceeding is an act in excess ofjurisdiction and that extraordinary relief ' will lie to prevent a trial by the court. Contrary to real parties in interest’s Opening Brief, the reasoning of Byram, 74 ! This Court has long recognized that “If the facts justify such [extraordinary] relief it is immaterial that defendant has prayed for the wrong remedy ...” Owens v. Superior Court (1959) 52 Cal.2d 822, 827. Although the petition was framed in terms of mandate, extraor- dinary relief was warranted, whether as a denominated mandate or as prohibition. Honore v. Superior Court (1969) 70 Cal.2d 162, 164; Anderson vy. Superior Court (1989) 213 Cal.App.3d 1321, 1328; Silva v. Superior Court (1993) 14 Cal.App.4th 562, 573. Cal.App.3d 648, is not “cursory and flawed.” (OB, p. 4.) Moreover, this Court itself has implicitly overruled Nessbit.’ This is an opportu- nity to do so expressly, applying consistent precedentthat has existed over the past several decades. A. The Modern View of Express Jurisdiction The holdings in Nessbit and Donohue, 93 Cal. 252, refusing to allow mandamus to compel a jury trial, while never expressly over- ruled, have long been wholly inconsistent with the Supreme Court’s views on the meaning and scope ofthe doctrine of acts in excess of jurisdiction. In Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, this Court explained: [I]n its ordinary usage the phrase “lack of juris- diction” is not limited to these fundamental situa- tions. For the purpose of determining the night to review by certiorari, restraint by prohibition, or * Additionally, Nessbit and the facts present are tnapposite. Nessbit held that a writ of mandate should not be granted under the facts of the case. Nessbit was a shareholders’ lawsuit. There was a dispute as to whether the underlying facts of the case permitted resolution of the claim individually, which would give a jury trial, or whether the action had to be brought as a representative suit, which would give a bench trial. Nessbit, 214 Cal. 1. The case here has no disputed facts. Instead, the only dispute is a question of law resting solely on whether remedies under section 1278.5 are legal or equitable. dismissal of an action, a much broader meaning1s recognized. Here it may be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. Td. at 288. Denial of the right to a jury trial was an act in excess ofthe trial Court’s jurisdiction because: Speaking generally, any acts which exceed the defined power of a court in any instance, whether. that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of juris- diction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari. Td. at 291. By 1941, any underpinning ofNessbit had been removed. This is simply a case in which “Someearlier decisions contain- ing expressions inconsistent with this analysis can no longer berelied upon.” 2 Witkin, California Procedure (3rd ed.), Jurisdiction, § 220, p. 608. Nessbit has not been good lawsinceat least 1941. 10 B. The Nessbif Holding Has Been Properly and Consistently Ignored. The holding in Nessbit generally has been ignored by numerous Courts of Appeal. Several of the cases are gathered by the Fifth District in Turlock, supra, 240 Cal.App.2d at 699 (“Prohibition is a proper remedy, in circumstances suchasthese, to test a litigant’s right to a jury trial”); see also Mailarino v. Superior Court (1953) 115 Cal_App.2d 781; Budde v. Superior Court (1950) 97 CalApp.2d 615; Knight, supra, 95 Cal_App.2d 838. While the illegal denial of a jury would constitute cause to reverse any judgment against petitioner (Cowlin v. Pringle (1941) 46 Cal.App.2d 472; Union Oil Co. of California v. Hane (1938) 27 Cal_App.2d 106, 110; City ofRedondo Beach v. Kumnick (1963) 216 CalApp.2d 830, 839), it would be inef- ficient and, indeed, unconscionable to refuse to ascertain petitioner’s right to a jury trial at this stage of the case. Knight, 95 Cal.App.2d at 839-840, illustrates how the courts of appeal have analyzed the issue. In Knight, a petition to compela jury trial was opposed on jurisdictional grounds. The Second District Court of Appeals found no such obstacle: We are impressed, however, that later cases have relaxed this rigorous rule as well as defini- tion ofjurisdiction, and have committed the ques- tion of issuance of the wnt here sought to the sound discretion of the court to which application therefore is made, in the light of whether by rea- son of the nature of the proceeding and the facts il and circumstances shown, an appeal would be a speedy and adequate remedy. Specifically concerning the rightto a jury trial, the Knight court stated: “It is our view that any court which denies the right oftrial by jury in a case where anyparty hasthe constitutional rightto it exceeds itsjurisdiction.” In 1977, the Second District flatlystated: A writ of mandate is a proper remedy to secure the nightto a jury trial. After a trial to the court it may be difficult for the petitioner to establish that he was prejudiced by the denial of a jury trial. In addition, even if he could establish such prejudice as to warrant reversal of the judg- ment, such a procedure would be imefficient and time consuming. Byram, supra, 74 Cal_App.3d at 654 (citation omitted). The view that extraordinary relief is available to challenge the denial of a jury trial was so well established by 1979 that the Third District observed. “Such a review would normally appear to be the better practice in the interest of saving the time needlessly expended in a court trial if an erroneous jurytrial denial has occurred.” Selby Constructors, supra, 91 Cal_App.3d at 522-523. The First District was equally blunt: “When trial court has abused its discretion in denying relief from a waiver of jury trial, a writ of mandate prior to trial is the proper remedy.” Winston, supra, 196 CalApp.4th at 603. 12 The Court of Appeal has been equally clear that appealing the denial of a jury trial after trial is not the ideal practice. Villano v. Waterman Convalescent Hosp., Inc. (2010) 181 Cal.App.4th 1189, 1205 (although denial of right to jury trial is reviewable on appeal, “it is the better practice to seek review of such a ruling by writ, saving the time and expense of a court trial if a jury trial is improperly de- nied”); see also Vande Kamp v. Bank of America (1988) 2014 Cal._App.3d 819, 862 (“While the better practice is to seek review of such a ruling by writ, saving the time and expense of a courttrial if a jury trial improperly was denied, the ruling may be reviewed on ap- peal from the judgment”). Society has a manifest interest in avoiding needlessretrials: they cause hardshipto the litigants, delay the admin- istration of justice, and result in social and economic waste. Hasson v. Ford Motor Company (1982) 32 Cal.3d 388, 418. While age alone does not vitiate valid precedent, Nessbit and Donohuehave been properly ignored because, “In assessing the prece- dents, [courts] ... are not rigidly bound by the exacting rules that happen to be found on ‘the legal scrap heap of [history].”” Jehi v. Southern Pac. Co. (1967) 66 Cal.2d 821, 829. The views in Abelleira, Nessbit, and Donohue have been proper- ly ignored by the Courts of Appeal. Requiring the formerto control is contrary to judicial economy and would violate the public policythat retrials are to be avoided whenever possible. 13 C. The Reasoning in Nessbit Has Been Questioned by Other Supreme Courts. What sparse note has been made of Nessbit has not been favora- ble. In 1958, the Montana Supreme Court did discuss Nessbit, ques- tioning the jurisdictional rule. In Jn re Banschbach, supra, 133 Mont. 312, the initial issue was whether the denial of a jury trial were within the trial court’s jurisdiction, precluding review by extraordinary writ. The Montana Supreme Court noted that Nessbit did support that view, “but even in California there are cases to the contrary.” Mallarinov. Superior Court, 115 Cal.App.2d 781, 252 P.2d 993; Knight v. Superior Court, 95 Cal.App.2d 838, 214 P.2d 21, and see Ex parte Becknell, 119 Cal. 496, 51 P. 692.” Id. at 314. The Montana Supreme Court then noted numerous cases from other jurisdictions that hold that, where a party is entitled to a jury trial as a matter of right and it is being withheld from him, extraordi- nary relief is allowed, concluding: The better-reasoned cases take the view that where either the Constitution or statute gives the right to a trial by jury and the jury is demanded and not waived, the jury constitutes an essential part of the tribunal authorized to determine the facts, and that the court in attempting to deter- mine the facts without a jury exceeds its juris- diction. Id. at 314-315. The outdated rule in Nessbit should not be revived. i4 D. Nessbit Was Implicitly Overruled by This Court. Real parties in interest’s Opening Brief asserts that “this Court has not overruled” Nessbit. (OB,p. 13.) This 1s not the case. Nessbit was implicitly overruled by this Court with the decisions in Crouchman, supra, 45 Cal.3d 1167 (considering merits of a petition for writ of mandamus concemingright to jury trial from small claims appeal), and Grafton, supra, 36 Cal.4th 944 (reviewing merits of writ of prohibition conceming jury waivers). In Crouchman, this Court considered the merits of a wnit of mandamuspetition conceming the right to a jury trial from a small claims appeal. Although the Court determined that there was no night to a jury trial under the circumstances, the California Supreme Court did not dismiss the petition on jurisdictional grounds, as Nessbit compels. Deciding the issue on the merits implicitly overruled Nessbit. Likewise, in Grafton, this Court reviewed the merits of a writ of prohibition concerning jury waivers. The First District had previously stated in the decertified opinion: A ruling denying a party’s claim to trial by jury is reviewable by writ or on appeal from the judgment.’ Asthe improper denialof the right to 3 Of course, prohibition has been consistently held to be appropri- ate for review of an improper denial or granting of a jury trial. Turlock, supra, 240 Cal.App.2d at 695 (prohibition proper to test i5 jury trial is reversible error per se writ review is appropriate to save the time and resources that otherwise would be expended in a needless and unwarranted court trial. Id. (citations omitted). Again, the court did not dismiss the petition on jurisdictional grounds, as Nessbit compels. Deciding the issue on the merits implicitly overruled Nessbit. E. Nessbit Should Be Expressly Overruled. Nessbit has long been properly ignored. It is not good law. The Court of Appeal, mindful of precedent, sidestepped the issue by concluding that “the opinions can be harmonized.” Nessbit ac- knowledged that a mandate is appropriate when there is no plain, speedy, or adequate remedy in the ordinary course of law. Nessbit, supra, 214 Cal. at9. The Supreme Court further noted that it had: [F]requently exercised this power in cases in which matters of great public interest are in- volved and in cases in which great and irreparable injury would result if the case was relegated to the ordinary course provided by law. It conclud- ed, however, that the case before it was not such a case. It did not conclude that no case in which a jury trial was denied would ever be appropriate for wit review. litigant’s right to a jury trial); Pacific Tel. & Tel. Co. v. Superior Court (1968) 265 Cal.App.2d 370, 375; Gann v. Williams Bros. Realty, Ine. (1991) 231 Cal_App.3d 1698, 1704. 16 (Opn., pp. 6-7 (citation omitted).) Weconclude that the instant case 1s appropri- ate for writ review. We are concerned not with a routine application of established law to the facts of a particular case, but with a novel question of statutory interpretation, which is a matter of inter- est to all plaintiffs who may bring suit under Health and Safety Code section 1278.5. More- over, the trial court certified that immediate reso- lution of the question “may materially advance the conclusion of the litigation.” We therefore overrule Kindred’s demurrer to the writ petition, and proceedto resolve the petition on its merits. (Opn., pp. 6-7.) There is no reason to require “harmonization” with Nessbit, nor is there any concern with violating the doctrine ofstare decisis. Asis recognized by this Court’s opinions in Crouchman, 45 Cal.3d 1167, and Grafion, 36 Cal.4th 944, and authority outlined by the numerous Courts of Appeal, Nessbit has not been good authority for years and is no longer followed. Nessbit should nowbe expressly overruled. F. There Is a Right to Jury Trial on a Retaliation Cause of Action Under Health and Safety Code § 1278.5. Generally speaking, in an employment case, “[T]he jury is en- trusted with vast discretion in determining the amount of damages.” Hope v. California Youth Authority (2005) 134 Cal_App.4th 577, 595 17 (citation omitted). Section 1278.5 provides for civil actions to redress injured whis- tle-blowers. Fahilen, supra, 58 Cal.4th at 676.4 The amended version of section 1278.5(g) broadly adds “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.” Such common-law damagesare triable before a jury. G. § 1278.5’s Pre-Amendment Equitable Remedies Section 1278.5(a) declares that it is “the public policy of the State of Califomia to encourage patients, nurses, members of the med- ical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions.” Prior to its amendment in 2007, section 1278.5 provided employ- ees with limited equitable remedies: (g) An employee who has been discriminated against in employment pursuant to this section shall be entitled to reinstatement, reimbursement for lost wages and work benefits caused by the acts of the employer, and the legal costs associat- ed with pursuing the case. No one disputes that the remedies under the initial version of section 1278.5 provided equitable relief. * This Court did not consider subdivision (g) and jurytrials. 18 H. § 1278.5 Was Amended to Include Common-Law Damages, as is Evident from a Clear, Plain Reading of the Statute. In 2007, section 1278.5 was amended to add additional common- law remedies to subsection (g): [Ojr to any remedy deemed warranted by the court pursuant to this chapter or any other appli- cableprovision ofstatutoryor common law. Although decided on the narrow ground of exhaustion, Fahlen, 58 Cal4th 655, recognized that whistle-blowers face formidable per- sonal and financial burdens, for which peer review alone would be an inadequate remedy. Reinstatement is, in most cases, wholly unrealistic, as would be equitable relief in general. A health care professional once subjectto retaliation is not likely to be gracefully accepted back into the facility. The whistle-blower would suffer damages—emotional trauma and losses—beyond equitable relief. Only through pursuit of common- law damages can whistle-blowers be given the incentive to fulfill the legislative purpose of protecting patients from unsafe conditions. A plain reading of the amendmentis that common-law damages are available. Contrary to real parties in interest’s assertions, no one contends that “the court” can impose “any remed[y] whatsoever,” such as meal period premium pay or “waiting time” penalties. (OB, pp. 22-23.) However, the Legislature did not engage in an idle act. The amendment should be fairly read to mean that the common-law i9 remedies for damages typically available in employees’ actions are available under subdivision (g). The amendment must be read with the assumption that the Leg- > existing judicial decisions islature was aware of the “common law’ concerning employees’ labor actions. Bishop v. San Jose (1969) 1 Cal.3d 56; Enyeart v. Board of Supervisors (1967) 66 Cal.2d 728. The developed body of labor law generally allows common-law dam- ages in employees’ actions. See, e.g., Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 21 (under FEHA,claimants are entitled to all damages generally available to civil litigants, name- ly, economic and non-economic damages and punitive damages); Wysinger v. Automobile Club of Southern California (2007) 157 CalApp.4th 413, 425 (future lost wages and damages “caused by his ‘feeling of betrayal’ by his employer, stress and his emotional reaction to ACSC’s actions” allowed); Hope, supra, 134 Cal.App.4th at 595 (in an employmentcase, “[T]he jury is entrusted with vast discretion in determining the amount of damages”(citation omitted)). This was the “common law” to which the amendment referred, implicating newlegal remedies. Had the Legislature intended to add only vague equitable reme- dies while precluding legal remedies, it would have stated so unequiv- ocally. Adding “or any other applicable provision of statutory or common law” would be “absurd”if the phrase is not given its plain and expansive meaning of including damages. 20 I. Broad Remedies Are Supported by the Legislative History. Although the plain text of subdivision (g) should suffice, the Court ofAppeal analyzedthe legislative history supporting its conclu- sion that broad new remedies were added: It is apparent, from this legislative history, that the language at issue was added to Health and Safety Code section 1278.5 to greatly broad- en the scopeofthe remedies available to wronged employees, health care workers, and medical staff members. It can be inferred that the legislature intended to give courts the discretion to fashion remedies for all of the methods of retaliation raised by the California Medical Association and discussed in the Senate Judiciary Committee’s bill analysis. While some of the methodsof retal- iation might be resolved with equitable remedies (e.g., if the health facility buys the medical build- ing with the physician’s office and refuses to re- new the physician’s lease, an order directing the health facility to renew the lease may be an ap- propriate remedy), other methods of retaliation involve undermining the physician’s practice by underwriting competitors, and can only be reme- died by an award of monetary damages. Indeed, it is impossible to look at the wide range of meth- ods ofretaliation discussed in the Senate Judici- ary Committee’s bill analysis and conclude that the legislature did not intend to grant courts the discretion to award remediesat law. (Opn., pp. 13-14.) In short, the statutory language andits legislative history greatly 21 expanded the remedies available under Health and Safety Code section 1278.5(g), from equitable remedies to remedies available in Jaw and equity. As such, the statute provides for a jury trial on legal issues. (Opn., p. 14.) This Court’s discussion of the legislative history in Fahlen,. supra, 58 Cal.Ath at 679-682, is equally apt. A proper remedy—civil damages—is necessary to fulfill the purposes of the whistle-blower statute. Extending the holding in Fahlen to include the right to a jury trial is consistent with the rule that a statute will be construed with a view to promoting, rather than defeating, its general purpose and the policy behind it. Department of Motor Vehicles v. Industrial Acc. Com. (1939) 14 Cal.2d 189, 195. The objects sought to be achieved and the evils sought to be prevented are of prime consideration inits interpretation. Freediand v. Greco (1955) 45 Cal.2d 462, 467-468. Removing the hurdle of exhausting an administrative remedy would be meaninglessby itself. The right to a jury trial gives meaning to the purpose and meaning of subdivision (g). The Court of Appeal properly granted extraordinaryrelief. Enti- tlement to a jury trial for legal damages under section 1278.5 fulfills the legislative purposes behind the whistle-blower enactment and provides substantive meaning to this Court’s decision in Fahlen, 58 Cal.4th 655. 22 J. New Remedies Are Not Restricted to Equity. Real parties in interest’s assertion that the additional remedies are limited by the canonsof ejudem generis, expressio unius est exclu- sio alterius, and noscitur a sociis (OB, p. 20) is mistaken. No limita- tion or negative inference arises where an amendment adds new remedies to a statute. Absent textual guidance to the contrary, ex- pressly adding newremediesis the antithesis of these canons. They are exactly what they are: new remedies. Unlike Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1390-1391 (OB, pp. 20-22), section 1278.5 does not use the language “including but not limited to” in adding remedies. There is no textual basis on which to conclude that the new remediesare restricted to the original equitable remedies. K. There Is a Constitutional Right to a Jury Trial. No one disagreesthat the right to a jury trial is a basic and funda- mental part of our system of jurisprudence. It should be zealously guarded by the courts. California Constitution, Article I, § 16; Van de Kamp, supra, 204 Cal.App.3d at 862: Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1122; Church ofScientology v. Wollersheim (1996) 42 Cal.App4th 628, 647-648; Lofty v. Southern Pacific Co. (1954) 129 Cal.App.2d 459, 462. “In case of doubt therefore, the issue should be resolved in favor 23 of preserving alitigant’s right to trial by jury.” DiPirro v. Bondo Corp. (2007) 153 Cal_App.4th 150, 176 (citations omitted); Byram, supra, 74 Cal.App.3d at 654. As the U.S. Supreme Court has noted, “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.” Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry (1990) 494 U.S. 558, 564-565. Likewise, no one disagrees that the right to a jury trial in California generally is a matter ofright in a civil action at law. [T]he right as it existed at common law in 1850, when the Constitution was first adopted, “and whatthat rightis, is a purely historical question, a fact which is to be ascertained like any other so- cial, political or legal fact.” As a general proposi- tion, “[T]he jury trial is a matter of nght in a civil action at law, but not in equity.” Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 694 (citations omitted). A denial of the right to trial by jury is an act in excess of the court’s jurisdiction and is reversible error per se. Heim v. Houston (1976) 60 Cal.App.3d 770, 774. L. Statutory Causes of Action May Be Tried Before a Jury. In the federal context: 24 Therightto a jury trial includes more than the common-law forms of actions recognized in 1791; the phrase “Suits at common law”refers to “suits in which legal rights [are] to be ascertained and determined, in contradistinction to those where equitable rights alone [are] recognized, and equitable remedies [are] administered.” Chauffeurs, Teamsters and Helpers, 494 U.S. at 564. In California, it is said: Therightto trial by jury is not inapplicable to causes of action based onstatutes, but applies to actions enforcing statutory nghts “if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.” Where, as here, we are deciding if a jury trial is required and have been presented with a statutory scheme that was not known at common law in 1850, as with any other action we look to the essence of the rights conferred and the relief sought—"‘the “gist ofthe action.” Ifthe “gist”is legal, as opposed to equitable, we have recog- nized a right tojurytrial.’” We thus first “compare the statutory action to 18th-century ac- tions brought in the courts of England prior to the merger of the courts of law and equity” and then “examine the remedy sought and deter- mine whether it is legal or equitable in nature.” DiPirro, 153 Cal.App.4th at 180 (citations omitted). Generally, “characterization of the relief sought is ‘[m]Jore im- portant’ than finding a precisely analogous common-law causeof ac- 25 tion in determining whether the Seventh Amendment guarantees a jury trial.” Tull v. United States (1987) 481 U.S. 412, 417. Newtorts that did not exist as such in 1850, i.e., negligent inflic- tion of emotional distress, have been judicially created in the modern era. Such torts, arising as they do from the common-law “action on the case,” are tried to a jury because the “gist” of the action is legal, not equitable. Because jury trials are favored, the guiding principleis that, “If the action is not one in equity, it follows, of course, that it is an action at law.” Philpott, supra, 1 Cal.2d at 517. In this case, Shaw is not seeking equitable relief. As the Court of Appeal explained, “The gist of Shaw’s action is the statutory viola- tion; although it could also be viewed as an action for breach of a term implied (by statute) into her employment contract, or an action for damagesfor personal injury.”. At commonlaw,each ofthese classes of actions was triable by jury. Wegner, ef al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group, 2013), § 2:89, p. 2-18 (damagesfor violation ofa statute); id. at § 2:84, p. 2-17 (damages for breach of contract); 7 Witkin, California Procedure (Sth ed. 2008), Trial, § 84, p. 111 (damages for personal injuries). Thus, the histori- cal analysis, including consideration of the remedy sought, confirms that Shaw’s Health and Safety Code section 1278.5 cause of action is an action at law, rather than equity, for which she is entitled to a jury trial.” (Opn., pp. 16-17.) Here, the “gist” of a section 1278.5 action is damages. 26 Bystatute, the right to a trial by jury exists in actions “for money claimed as due upon contract, or as damages for breach of contract, or for injuries.” Code of Civil Procedure § 592. “Generally speaking, this means that legal as distinguished from equitable actions are tria- ble by jury.” 7 Witkin, California Procedure (Ath ed. 1997), Trial, § 94, p. 113. M. Employees Had Action at Law in 1850. Examining the historic roots of an action for damages—even an employee’s action for damages—supportsa right to ajury trial. The English commonlaw recognized no separate legal action in tort. Instead, the British legal system afforded litigants two central avenues of redress: trespass for direct injuries and actions “on the case”for indirect injuries. These were legal remedies. An action for damagesis traditionally a legal action. See James, Fleming, Jr., “Right to a Jury Trial in Civil Actions,” 72 Yale LJ. (1962-1963) 655, 668-669 (“Many suits today are, from summons to judgment, no more than the counterpart of a former action at law. The typical personal injury suit furnishes a ready example”). Shaw seekstraditional tort damages, not equitable relief. Under the English system as described by Sir John Salmond,a tort is a civil wrong for which the remedyis a common-lawaction for unliquidated damages and that is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation. Salmond,J. 27 W., and Heuston, R.S.V., The Law ofTorts (1957). While “the employment claim for retaliation” appears to have been unknown to the common law in 1850 (OB, p. 16), real parties in interest’s claim that there was “no common law ‘whistle-blower’ claim in 1850” (OB,p. 17) overstates the point and is misleading. The facts here are wholly different from those in Interactive Multimedia Artists v. Superior Court (1998) 62 Cal_App.4th 1546, 1550 (OB,p. 25), because the “breach of a fiduciary duty is an equita- ble action under both Delaware law and California law and hence . . IMA is not entitled to a jury trial.” Shaw’s action simply is not equitable. Even in 1850, an employee injured by a wrongful breach of an express or implied employment contract had an action for damages. Wrongful discharge and, to a more limited extent, employment discrimination were action- able at common law. Wrongful discharge of an employee would support a recovery of “lost wages” in an action tried to a jury at common law, even when no assumpsit or quantum meruit would lie because no work was done subsequent to final payment and discharge. Minton, Michael B., Right to Jury Trial Under the Age Discrimination EmploymentAct (1978) 43 Missouri Law Review 250, 256. A jury trial is required on the basisof historical analysis. 28 N. Jury Trial Is Required Because Shaw Waived Her Equitable Claims. Real parties in interest’s claim that “Shaw’sstatutory action is a claim for restitution, a claim in equity” (OB, p. 18), is simply wrong on severallevels. First, Shaw does not seek reinstatement or any equitable remedy. She seeks money damages. Shaw eschewed any equitable relief, clearly limiting her claims to legal damages. Cf Raedeke v. Gibraltar Sav. & Loan Ass’n (1974) 10 Cal.3d 665, 671 (recognizing plaintiff's right to waive equitable claims and proceed on legal damagestried to a jury). Second, Shaw’s claim is for damages, notrestitution. Plaintiff's Complaint seeks compensatory damages, including damages for emotional distress and physical injuries. Damages for emotional distress and physical injuries were tried before ajury at common law. Damages for emotional distress and physical injuries are traditionally recoverable in employmentactions for retaliation. Shaw’s claim soundsin tort, a traditional legal claim. Her claims are not analogous to any case that wastraditionally heard in a court of equity. See Dalis v. Buyer Advertising, Inc. (1994) 418 Mass. 220, 223 (in wrongful employment termination action, “The plaintiff does not seek primarily equitable relief. Nor is the nature of her claim analogous to any case which wastraditionally heard in a court of equi- ty. Thus, the plaintiffhas a right to a jurytrial”). 29 Third, even though there may be some connection between equi- table remedies and damages, the “gist” of this action is legal and re- quires a jury trial. Cf Chauffeurs, Teamsters and Helpers, supra, 494 U.S. at 573 (“{T]he connection between backpay under Title VIT and damages under the unfair labor practice provision of the NLRA does not require usto find a parallel connection between Title VII backpay and money damagesfor breach ofthe duty of fair representation”). The fact that trial by jury is jealously pre- served as a matter of right dictates that the mere existence of a remedy in equity cannot operate to defeat a right to proceed at law. It is only where the issues to be tried are exclusively equitable in nature that a suitor is deprived of a nght to a jury trial. Ripling v. Superior Court (1952) 112 Cal_App.2d 399, 408 (incompe- tent’s guardian sued alleged trustee/fiduciary for money had and re- ceived and prayed for accounting, declaration of constructive trust, and money judgment; defendant was entitled to jury trial because plaintiff essentially elected to sue on contract-based debt). Neither Zameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172, nor Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 328 (OB, pp. 16-17), explores the historic basis for an employee’s action at common law. Neither of them is authority for “a proposition not therein considered.” Ginns v. Savage (1964) 61 Cal.2d 520, 524. While the original version of section 1278.5 was limited to equi- 30 table claims, the amended version adds new remedies. Shaw is pursuing a claim for damages that would have been cognizable at law before 1850 and seeks relief that could have been obtained at law before 1850. Shaw hasa rightto a jury trial. O. The Court Is Not Acting as a Chancellor. Real parties in interest’s assertion that subdivision (g) allows the court to act as a chancellor in equity is a forced construction that should be avoided under the rules generally favoring jury trials. “(T]he boundaries of equity jurisdiction ‘ought not to be widened by judicial decision .. . [because] the constitutional nght of trial by jury would thereby become correspondingly narrowed.’” Parkway, Inc. v. United States Fire Ins. Co. (1943) 314 Mass. 647, 651. Atbest, subdivision (g) is unclear: Is “any other applicablepro- vision of statutory or common law” only one deemed warranted by the court or one that simply exist in statutes and in common law? A comma after “chapter” would have clarified this. However, the lack of a comma is not unusual and can hardly be determinative where constitutional rights are at issue. People v. Leiva (2013) 56 Cal.4th 498. 506-507 (“*.. . when faced with an ambiguousstatute that raises serious constitutional questions, [we] should endeavor to construe the statute in a manner which avoids any doubt concerningits validity’”), quoting Young v. Haines (1986) 41 Cal.3d 883, 898. The amendmentto section 1278.5 is not like a Government Code 31 section 946.6 proceeding, such as was considered in County of Sacramento v. Superior Court (1974) 42 Cal.App.3d 135, 140 (OB, p. 23), in which the court noted that “Government Code section 946.6 obviously had no counterpart in 1850. Moreover, section 946.6 provides for a ‘special proceeding,’ rather than a commonlawaction.” “Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in con- text.” Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052. An employee in a discrimination lawsuit is entitled to a jury determi- nation. Asare v. Hartford Fire Ins. Co. (1991) 1 Cal.App.4th 856, 869 (trial court erred in granting defendant’s motion to strike employee’s jury demandin a discrimination lawsuit). These are not claimstried to a chancellor. Jury trials are traditionally allowed in damages’ cases because the jury, as the trier of fact, is in the best position to assess compensa- tory damages. See, e.g., Agarwal v. Johnson (1979) 25 Cal.3d 932, 953 (“And it is the members of the jury who, when properly > Even under ERISA,legal claims for relief may invoke the night to a jurytrial. See, e.g., discussion in Sullivan v. LTV Aerospace & Defense Co. (W.D. N.Y. 1994) 850 F.Supp. 202 Gury trial allowed in ERISA case because “[T]his Court finds that plaintiffs are asserting legal claims for relief, the resolution of which will depend upon a factfinder’s determination of disputed factual questions. Therefore, under the Seventh Amendment, plaintiffs are entitled to a jury trial to resolve those questions”). 32 instructed, are in the best position to assess the degree of the harm suffered and to fix a monetary amount as just compensation therefor”); Iwekaogwu v. City ofLos Angeles (1999) 75 Cal.App.4th 803, 814 (“The jury’s verdict on the retaliation charge is supported by substantial evidence’). The constitutionally favored reading of the amendmentis that an employee may pursue statutory and common-law remedies in addition to the equitable relief previously available. The additional common- law remedies include causesofaction tried to a jury. P. § 1278.5 Is Not Restricted to Administrative Relief. Section 1278.5 does not “mirror other California statutes provid- ing administrative relief without a jury.” (OB,p. 30.) Petitioner’s claims for compensatory damages are not pre-empt- ed by Labor Code section 132a. Cf Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347 (“Labor Code section 132a is not applicable here. Accardi does not claim her employer retaliated against her because she filed a workers’ compensation claim. She claims she is the victim of sexual harassment’). The remedial scheme under: section 1278.5 is distinguishable from Labor Code section 132a, which prohibits discrimination against an employee for filmg or making known his intention to file an application for benefits with the Workers’ Compensation Appeals Board. That section expressly states that there is no right to a jury 33 trial. Specifically, the appeals board is expressly “vested withfull power, authority, and jurisdiction to try and determinefinally all the matters specified in this section subject only to judicial review.” Emphasizing that language and the general principle of exclusivity under the Workers’ Compensation Act, the court in Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, held that the statu- tory scheme of remedies was exclusive. Section 1278.5 contains no comparable language and does not provide a self-contained adminis- trative remedy. Likewise, California Labor Code section 98.7 says that “the Labor Commissioner . . . [shall] take any action deemed necessary [to enforce] this section.” Section 1278.5 contains no such language. Rather, it mirrors statutes that allow for legal remedies. The Fair Employment and Housing Act’s (“FEHA”)anti-retaliation clause states: It is an unlawful employment practice ... For any employer, labor organization, employ- ment agency, or person to discharge, expel, or otherwise discriminate against any person be- cause the person has opposed any practices for- bidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding underthis part. Government Code § 12940(h). Additionally, the anti-retaliation provision of the Labor Code with regard to reports ofillegal activity reads: 34 (b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or be- cause the employer believes that the employee disclosed or may disclose information, to a gov- ernment or law enforcement agency, to a person with authority over the employee or another em- ployee who has the authority to investigate, dis- cover, or correct the violation or noncompliance, or for providing information to, or testifying be- fore, any public body conducting an investi- gation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties. (c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Labor Code § 1102.5(b)-(c). section 1102.5 are legal. The texts of FEHA, Labor Code section 1102.5, and Health and Safety Code section 1278.5 are functionally identical. Consequently, as is illustrated, it is well established that FEHA and Labor Code Commodore, supra, 32 Cal.3d 21 (legal damagesavailable in FEHAactions); Campbell, supra, 35 Cal.4th 311 (same for § 1102.5). There is no reason to read thestatutes, including 35 Health and Safety Code section 1278.5,differently. The Legislature undoubtedly would have included the language it included in Labor Code section 132(a) or Labor Code section 98.7 had it wanted the courts to find that the claims sounded in equity. Ofcourse, this Court noted in Fahlen, supra, 58 Cal.4th at 676: [I]n contrast with [other statutory schemes], sec- tion 1278.5 neither provides, nor acknowledges the existence of, a parallel administrative pro- ceeding in which the complainant’s claim ofre- taliation, as such, might be addressed and resolved. Section 1278.5’s failure to mention resort to such an administrative forum as a condition to suit, where the Legislature has included such a requirement in similar statutes,is a significant indicator that the Legislature did not contemplate such a precondition in this instance. Plaintiff is entitled to a trial by jury on her damagesclaims. Q. Ambiguities Are to Be Resolved in Favor of Jury Trial. The right to a jury trial is zealously guarded by the courts. Jacoby v. New York (1942) 315 U.S. 752, 753. Consequently, a trial court has the duty to resolve all doubts in favor of granting relief to allow jury trial. Bishop v. Anderson (1980) 101 CalApp.3d 821. It is clear that the 2007 amendment aimed to conform to the court’s express preference for allowing jury trials. It is also clear that the California Supreme Court has already addressed the issue of 36 whether Health and Safety Code section 1278.5 provides for legal remedies, confirming that it does. Specifically, the California Supreme Court held this year that “nothing we see in . . . Health and Safety Code section 1278.5 itself, expressly or implicitly impedes a legal claim.” Fahlen, supra, 58 Cal.4th 655. Yet despite this, even assumingthat real parties in interest’s contentions related to the stat- ute are true, at best, the statute is ambiguous. Under such circum- stances, this Court must resolve the dispute in favorofa jury trial. CONCLUSION The Court of Appeal properly granted extraordinary relief. Enti- tlementto a jury trial for legal damages under section 1278.5 fulfills the legislative purposes behind the whistle-blower enactment and provides substantive meaning to this Court’s decision in Fahlen, 58 Cal.4th 655. Dated: February 10,2015 Respectfully submitted, SHEGERIAN & ASSOCIATES,INC. Attomeys for Plaintiff/Petitioner, DEBORAH SHAW BRIEF FORMATCERTIFICATE(C.R.C.8.204(c)(1)) Pursuant to California Rules of Court, Rule 8.204(c)(1), the undersigned certifies that, according to the computer program on which it was prepared, the word count of this Answer Brief on the Merits is 7,958, excluding tables, covers, and this certificate. Dated: February 10,2015 Respectfully submitted, SHEGERIAN & ASSOCTATES, INC. wy: QnAsins CameyR/Shegeriaa/ Attorneys for Plaintiff/Petitioner, DEBORAH SHAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHAW v THC ORANGE COUNTY,INC. CASE NO.: BC 493928/ B254958 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am an employeein the County of Los Angeles, State of California. I am overthe age of 18 and notaPaty to the within action; my business address is 225Santa Monica Boulevard, Suite 700, Santa Monica, California 90401. On February 10, 2015, I served the foregoing document, described as “ANSWER BRIEF ON TH MERITS"onall interested parties in this action by placing a true copy thereof in a sealed envelope, addressedas follows: D. Gregory Valenza, Esq. SUPERIOR COURT OF THE STATE OF Jasmine L. Anderson, Esq. CALIFORNIA SHAW VALENZA LLP COUNTY OF LOS ANGELES 300 Montgomery Street, Suite 788 CENTRAL DISTRICT San Francisco, California 94104 111 North Hill Street Los Angeles, California 90012 (One Copv) CALIFORNIA COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION TWO Ronald ReaganState Building 300 S. Spring Street, 2nd Floor Los Angeles, California 90013 ><] (BY MAIL)Asfollows: I placed such envelope, with postage thereon prepaid, in the United States mailat Santa Monica, California. Xx] [| (BY FED EX)I placed such envelope in a designated Federal Express pick-up box at Santa Monica, California. Xl I am “readily familiar” with the firm’s practice of collecting and processing corre- spondence for mailing. Under that practice, it would be eposited with the U.S. ostal Service on that same day, with postage thereon fully prepaid, at Santa Monica, California, in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation or postage meter date is more than one day after the date of deposit for mailing in this affidavit. xX (STATE) I declare, under penalty of perjury under the laws of the State of alifornia, that the aboveis true and correct. Executed on February 10, 2015, at San ! Monica, California.