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

Real Parties in Interest, THC-Orange County, Inc., Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, Kindred Healthcare, Inc., and Jeffrey Sopko, Petition of Review

Cal.September 29, 2014

§221530 | If Case No. S IN THE SUPREME COURT OF THE | SUPREME COURT STATE OF CALIFORNIA ar Deborah Shaw, cEP 29 2014 Petitioner, Frank A. McGuire Clerk VS. Deputy Superior Court of the State of California, Respondent, THC — Orange County, Inc., a California corporation; Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, Kindred HealthcareInc., Real Parties in Interest. Court of Appeal, 2d Dist., Div. 3, Case No. B254958 Los Angeles County Superior Court Case No. BC493928 Honorable Alan S. Rosenfield PETITION FOR REVIEW D. Gregory Valenza, SBN 161250 SHAW VALENZA LLP 300 Montgomery Street, Suite 788 San Francisco, California 94104 Telephone: (415) 983-5960 Facsimile: (415) 983-5963 Attorneys for Attorneys for Real Parties in Interest, THC — Orange County, Inc., Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, Kindred Healthcare Inc. | Case No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Deborah Shaw, Petitioner, VS. Superior Court of the State of California, Respondent, THC —- Orange County, Inc., a California corporation; Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, Kindred Healthcare Inc., Real Parties in Interest. Court of Appeal, 2d Dist., Div.3, Case No. B254958 Los Angeles County Superior Court Case No. BC493928 Honorable Alan S. Rosenfield PETITION FOR REVIEW . D. Gregory Valenza, SBN 161250 SHAW VALENZA LLP 300 Montgomery Street, Suite 788 San Francisco, California 94104 Telephone: (415) 983-5960 Facsimile: (415) 983-5963 Attorneys for Attorneys for Real Parties in Interest, THC — Orange County, Inc., Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, Kindred Healthcare Inc. . Page TABLE OF AUTHORITIES...........evessessessecvensssssesessssesssussesssesuessssseesvaeeeens ii I. ISSUES PRESENTED 0ouseieecccccctseseccseesssecseceeessesasesatsecsseeeaseesees 1 UL. INTRODUCTION 0... cceeeetecteeeesecseeeseceneeteaeeesetesestesseesssseeeenes 2 A. Background and Procedural History .........cscs2 B. The Court of Appeal’s Decision to Overrule Real Parties’ Demurrer to Plaintiff's Writ Petition... 3. C. The Right to Jury Trial Under Health and Safety Code Section 1278.5 occ eeeccessecesesceseceeseeesesseeeesssessssessesseessesesseenees 4 THE. DISCUSSION woceccccecececcececeeceeenceeseseeatesseceseecssaeseesssesecuesssesenseseneseus 6 A. This Court Should Grant Review Because the Court of Appeal Acted in ExcessofIts Jurisdiction by Overruling Real Parties’ Demurrer to the Petition for Writ of Mandate wo... cece cescecccccecceeceeccucececcesecstesueeusueucesens 6 B. This Court’s Review is Warranted to Secure Uniformity of Law Amongthe Courts of Appeal Regarding Whether Writ Review of Jury Trial Denials Ts Available oeeeccecscesceecceeeseeeceeaseesseeensseecsseessssetesseesseesaees 8 C. This Court’s Review Is Warranted to Address Whether Health and Safety Code Section 1278.5 Sounds in Law OF EQuIity...eeeeccseecsesseeserseneeseeseeneeeaeenseeessessecsasessessseeereeates 9 1. This Case Presents Important Questions of First Impression Regarding the Interpretation of Health and Safety Code Section 1278.5, a Highly Significant Healthcare and Employment-Law Statute 00... ceeeccccesseseseesseeseesseens 9 2. This Case Presents Important Questions ofLaw Regarding How Courts Determine Whether a — Sury Trial Is Availableocceeeeeeeeeees 11 TV. CONCLUSION0ceeccceeeceeeceeteeeeeeteaeeseeesseeeesseesesessasressaseeseeaes 14 CERTIFICATE OF WORD COUNToo. cccccceccceessecsteeeeeseeneesstesesssesesees 15 APPENDIX TABLE OF CONTENTS TABLE OF AUTHORITIES Page Cases Dyna-Med,Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379. ceceecceececccsesceceeseeeessecseessssscsesesescssssneesatevneenae 13 Andrewsv. Police Court of Stockton (1943) 21 Cal. 2d 479.ccccetcteeteees wees teteeseseseseseseseseseseeesescseseeeseneans 7 Auto Equity Sales v. Superior Court (1962) 57 Cal. 2d 450. eccccccseseececteeeeceseesseesecsseesscsescreseressseeentes 2, 4,6 Byram v. Superior Court (1977) 74 Cal. App. 3d 648 oi ccccccecssccsseeetecsecsercessssscsssesesseesenseeeeres 3,8 City of Los Angeles v. County of Kern (2014) 59 Cal. 4th 618 oieenecsecrceneeeecsesseeeeeeescnecsessesessteseseceeesseaes 9 DiPirro v. Bondo Corp. (2007) 153 Cal. App. 4th 150...cccccccccsseesceneesecneenessecscsecssesessecsevaeeas 12 Donohue v. Superior Court (1892) 93 Cal. 252... eccccccecsecsecsseeeesceeteceeecsssesecseessceatseesesesssteeesseeases 1,7 Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal. 4th 655 ccccecccceccesceesecsseecsseessensecsesssceseessceenrens teed, 9 Fletcher v. Sec. Pac. Nat'l Bank . (1979) 23 Cal. 3d 442.ccccece cre ceetseneceeseeecaenesaeneteeteesasaeseeaeees 13 Franchise Tax Bd. v. Superior Court (2010) 51 Cal. 4th 1006 oo.eeccceceseeeeeeesseeeeesseecseesessssesesneeensass 11, 12 Ginns v. Savage (1964) 61 Cal. 2d S20...ec ccccceceteesecesseesseescsecssessecssseesssessnesecsecseeaees ll Johnson-Stovall v. Superior Court (1993) 17 Cal. App. 4th 808...ccccecccescessecsscssecesessecseeesseesseaeceetsseeens 9 -ii- TABLE OF AUTHORITIES (continued) Page Martin v. County of L.A. (1996) 51 Cal. App. 4th 688 ooo ccccccsccscssescsecssessssescsstssseseavsnevanereeeestens 7 McClung v. Employment DevelopmentDept. (2004) 34 Cal. 4th 467 ooo ceccccecessseesesessesscsecsessssecsssssssesscavevsvevesaeeeeens 6 Mechler v. Superior Court of Alameda County (1927) 85 Cal. App. 353 cececceecccessecsessesscsecsecsseesesscsscsucassesssavecsensearenseens 8 Munson v. Del Taco, Inc. (2009) AG Cal. 4th 661 oooeceeeseceseeessessesessesseseesecsassscsecsevesvessesvevsvereaeeess 13 Nessbit v. Superior Court (1931) 214 Cal. Liceeccceeceseeseeesseeteecsesecsecsssscssssssssscseesrseseeensess 1, 3, 6 People v. One 1941 Chevrolet Coupe (1951) 37 Cal. 2d 283 occccccecccccsecseseeecsescssstssessssevstsseseesesssassnsvensatsesenees 9 Sarti v. Salt Creek Ltd. (2008) 167 Cal. App. 4th 1187. ccccccccccsscscsscscessscsscesenetrevrerereeearen 8 Shaw v. Superior Court (2014) 229 Cal. App. 4th 12... ceeceeseeeessesccecsscsssseseestsscecneenean passim Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal. 4th 197 vecceeceeccsscsscssessceeseceseescescsscsussscesseaveceeeeseateas 10 Widney v. Superior Court of Los Angeles County, (1927) 84 Cal. App. 498. ecccecccescesscssesssecsecseesssessessvscescssvsusasavececervarenees 8 Winston v. Superior Court (1987) 196 Cal. App. 3d 600.0... cee ceceescecessesecsccsssssscsscsesessevstststsvsesseaes 9 - iii - TABLE OF AUTHORITIES (continued) Page Statutes Code Civ. Proc. § 1086 cecceeccccssssseeesssssseesessssessvesenesessuvesessaseusssersavesgusssesssssitesesessiteesessieeesee 7 Health and Safety Code oe S L278occcccccccscsssecscsseerssesesessescsecssssanssssavsssessesnereeess veceneeaeeeeeswe passim Other Authorities California Healthcare Foundation, California Health Care Almanac (available on the internet at http://tinyurl.com/k5f¥me5 (visited Sept. 22, ZOLA) ee cccccccccssccessecsseeesseeceeseeeceecsseesescseecsarecsusccessscavssessseesereuisersstenesaeees 10 CaliforniaHospital Association, Human Resources, (http://www.calhospital.org/human-resources) (visited Sept. 22, 2014) oe cecccceecseesecseceeseessecssesessseecerscsssssasesteeseneenes 10 Judicial Council of California, 2014 Court Statistics Report (available on the internet at http://www.courts.ca.gov/documents/2014- Court-Statistics-Report.pdf, visited Sept. 21, 2014) ........Leeeenteeeeensaeeeeaaees 9 Legislative Analyst, Cal Facts (Jan. 2013) weesseseeeeeeaeeeeentesatens 11 Rules Cal. R. Ct. Rule 8.500, subd. (b) oo. cccceccccccscessececseseeessesesecseesessccsssssusseseaseenee 3,4, 6,9 Rule 8.504, subd. (D) oo... cececcccecescessceessesseseessesseesseseseasesssescetesseessecaeessenaey 1,9 -iv- 1 ISSUES PRESENTED This case is before this Court after the Court of Appeal issued a published opinion, granting Plaintiff Deborah Shaw’s Petition for Writ of Mandate.' The Court of Appealheld, in a case offirst impression,that a claim under California Health and Safety Code, section 1278.5,is tried to a jury rather than the Court. Before reaching the merits, however, the court overruled Real Parties’ Demurrer to the Petition. Real Parties based their Demurrer on this Court’s unambiguous holdings, to wit: mandate is not an available remedy when a party is denied a jury trial, because the party has an adequate remedyat law, i.e., appeal from the judgment. The Court of Appeal below was boundto follow this Court’s holdings. Review via writ of mandate in not appropriate in a case involving the right to a jury trial. Proceeding to the merits, the Court of Appeal then erroneously held that a jury trial is available to plaintiff herein, a legal question of | considerable importanceto the health care industry, bench, and bar. Real Parties in Interest respectfully submit the following issues for resolution in this Court: 1. Arethis Court’s holdings in Nessbit v. Superior Court (1931) 214 Cal. 1 (“mandate is not the proper remedyto test the right to a jury trial’ because “the petitioner has a sufficient remedy in the ordinary course. of law by appeal”), and Donohue v. Superior Court (1892) 93 Cal. 252, ' Per Cal. R. Ct. 8.504, subd. (b)(4), a copy of the Court of Appeal’s slip opinion in Shaw v. Superior Court (2014) 229 Cal. App. 4th 12, is attached hereto. Per Cal. R. Ct. 8.504, subd. (b)(3), there was no Petition for Rehearingfiled in the Court of Appeal. binding on the Courts of Appeal, and, if so, must a Court ofAppeal sustain a demurrer to a petition for writ of mandate because theplaintiff has an adequate remedy at law? . | 2. Does a court of appeal violate Auto Equity Sales v. Superior Court (1962) 57 Cal. 2d 450, and therefore exceed its jurisdiction, by . declining to follow a binding decision of this Court, and instead following a sister Court of Appeal’s contrary decision, which neither cited nor distinguished this Court’s prior decision? 3. Does an employee’s cause of action for retaliation under Health and Safety Code section 1278.5 sound in equity, and therefore is properly tried to the court rather than a jury, given there was no analogous claim in existence as of 1850, the gist of an action underthat statute is the~ equitable claim for restitution, the statute aids the state’s regulation of health care facilities, and the statute’s remedies invoketraditional equitable remedies as well as thetrial court’s broad equitable powers? Il. INTRODUCTION | A. Background and Procedural History Real Party in Interest THC-Orange County, Inc. (dba Kindred Hospital —- Los Angeles) employed Petitioner Deborah Shaw as a Human Resources Coordinator. After THC-Orange County discharged Shaw for performance reasons,she filed a lawsuit for wrongful termination in violation of public policy and violation of Health and Safety Code section 1278.5. She claims she was discharged for reporting that nurses were working with expired licenses, and that professional staff had not properly completed clinical competencies. See Slip Op. at pp.2-3. During pre-trial hearings, Respondent Superior Court ruled that the section 1278.5 claim is equitable in nature and, therefore, would betried to the court rather than a jury. Thetrial court also certified that issue for resolution by the Court of Appeal under Civil Procedure Codesection 166.1. See Slip Op.at pp. 4-5. Shaw filed a Petition for Writ of Mandate on or about March 17, 2014. The Court ofAppeal issued an Order to Show Cause on April 17, 2014. Real Parties filed a Demurrer and Return on or about May 13, 2014. The Court of Appeal held oral argument on June 15, 2014, andissuedits opinion on August 21, 2014. This Court reviews decisions, inter alia, to secure uniformity among the Courts of Appeal, to settle important questions of law, and to address a court’s act in excess ofits jurisdiction. See Cal. R. Ct. Rule 8.500, subd. (b). The instant Petition presents two discrete issues, each ofwhichsatisfies the abovecriteria. B. The Court of Appeal’s Decision to Overrule Real Parties’ Demurrerto Plaintiff's Writ Petition Thefirst issue is a matter of stare decisis: Have the Courts of Appeal impliedly overruled this Court’s unambiguous holdings in two decisions, and should they be permitted to do so? This Court twice has ruled, without any qualification, that a party’s right to a jurytrial ina civil action presents a question of law, reviewable via appealrather than via mandate. See Nessbit v. Superior Court, (1931) 214 Cal. 1; Donohue v. Superior Court (1892) 93 Cal. 252. | . The Court of Appeal’s decision in the instantcase is the first to expressly decline to follow this Court’s rule. The Court below acknowledged, “Nessdit has not been reversed.” Shaw v. Superior Court (2014) 229 Cal. App. 4th 12, 18, Slip Op. at p. 6. Yet, the Court of Appeal instead decided to follow the Third District’s decision in Byram v. Superior Court (1977) 74 Cal. App. 3d 648, 654. The Byram court held, directly contrary to Nessbit and Donohue: “A 3 writ of mandate is a proper remedy to secure the right to a jury trial... .’ But the Byram court announced this rule withoutciting, distinguishing,or explaining Nessbit. The Court of Appeal in the instant case wrote that Nessbit and Byram could be “harmonized.” Slip Op. at p. 6. But that simplyis not the case. This Court in Nessbit and Donohue held without qualification that the question of whethera jury trial is available is not reviewable by writ, because the denial of trial by jury presents a question of law adequately addressed on appeal. Byram simply reached the opposition conclusion, apparently without considering Nesbitt or Donohue. The Byram court did not hold writ review was “sometimes” available in an appropriate case, but rather, categorically announced that a writ is “proper.” Two wrongs don’t make a right. The Court below, presented with a holding of this Court and a contrary holding of Byram, a sister court, was not authorized to follow Byram. See generally Auto Equity Sales v. Superior Court (1962) 57 Cal. 2d 450. Under Rule 8.500, subd. (b), this Court’s review is warranted on several grounds. The Court below exceededits jurisdiction by choosing Byram over Nessbit. Moreover, the Courts of Appeal have dividedon the availability of writ review for denial of a jurytrial. Finally, this Court should clarify the stare decisis principles governing the Courts of Appeal, or re-examine the availability of writ relief for denial of a jury trial, both important questions of law. | C. The Right to Jury Trial Under Health and Safety Code Section 1278.5 . The Court of Appeal’s decision regarding the right to jury trial under Health and Safety Code section 1278.5 also warrants this Court’s review, so the Court maysettle an important question of law. | With regard to Rule 8.500, subd. (b), again, because Plaintiff had an adequate remedy at law, the Court of Appeal lacked jurisdiction to reach this issue. Separately, this Court’s ruling on the availability of the right to jury trial will settle an importantquestion of law. The Court of Appeal itself recognized this issue’s importance. See Shaw, 229 Cal. App. 4th at 19, Slip Op., at p. 7 (“We are concerned... with a novel question of statutory interpretation, which is a matter of interest to all plaintiffs who may bring suit under Health and Safety Code section 1278.5”). The Court below should have denied the Petition on the merits. Relying on a 2007 amendment to section 1278.5 and its ambiguous legislative history, the Court of Appeal held that section 1278.5 sounds in law rather than equity, affording Plaintiff a jury trial. A claim under - section 1278.5 is a claim for restitution. The statute’s text, legislative history, and even its placement within the Health and Safety Code’s regulatory provisions, demonstrate the law vests the “court,” not a jury, with significant discretion to award equitable relief. The healthcare economy in California is, in a word: immense. The statute applies to hundreds of thousands of California doctors, nurses and other healthcare workers, who work at hundreds of acute-care healthcare facilities throughout the state. The statute also protects hospital patients from retaliation for reporting patient care issues. Finally, this statute and its legislative history are not a model of clarity. The bench andbarwill benefit from this Court’s guidance on the right to jury trial under section 1278.5. In sum, this Court should grant the instant Petition for Review. Ill. DISCUSSION The instant Petition warrants this Court’s review on the following grounds. See Cal. R. Ct. 8.500, subd. (b), 8.504, subd. (b)(2). A, This Court Should Grant Review Because the Court of Appeal Acted in Excess of Its Jurisdiction by Overruling Real Parties’ Demurrerto the Petition for Writ of Mandate This Court will review a decision of the Court of Appeal when the lower court lacks jurisdiction. Cal. R. Ct. 8.500, subd. (6)(2). The Court of Appeal exceeded its jurisdiction by deciding the writ on its merits, contrary to this Court’s rulings. In Auto Equity Sales v. Superior Court (1962) 57 Cal. 2d 450, this Court held: “the appellate department of the superior court exceededits Jurisdiction,’ as that term is used in connection with the writ of certiorari, in refusing to follow a rule established by a court of superior jurisdiction” Id. at p. 455 (emphasis added). That is because “all tribunals exercising inferior jurisdiction are required to-follow decisions of courts exercising superior jurisdiction.” Jd. . Auto Equity Sales equally applies to the Court of Appeal, which must follow this Court’s decisions. See McClung v. | Employment Development Dept. (2004) 34 Cal. 4th 467, 473. This Court has twice held that a writ of mandate is not available to parties claiming denial of a jury trial. Here is what this Court wrote in Nessbit v. Superior Court: This court and the District Court of Appeal have squarely held in numerouscivil and criminal | actions and proceedingsnot amounting to a felony that mandate isnot the proper remedy to test the right to a jury trial. That is a question of law which the superior court hasjurisdiction to hear and determine, and iferror has been or shall be committed in determining that question, the petitioner has a sufficient remedy in the ordinary course oflaw by appeal. Nessbit v. Superior Court ofAlameda County (193 1) 214 Cal. 1, 7 (emphasis added). This Court in Nessbit relied on an earlier decision in Donohue v. Superior Court (1892) 93 Cal. 252, from which the above | language is quoted. Jd. at p. 253. Here, Real Parties, in their Demurrer to Shaw’s Petition for Writ of Mandate, cited both of these decisions to the Court of Appeal. The Court of Appeal acknowledged Nessbit, but stated that this Court in Nessbit “did not conclude that no case in which a jury trial was denied would ever be appropriate for writ review.” Shaw, 229 Cal. App. 4th at 19, Slip Op. at’ p.7. This Court holdings should not have to be so categorical to be followed. Nessbit’s holding is concise and plainly precludes writ review. Where,as here, a litigant may appeal a superior court’s allegedly erroneous rulingaftertrial, that litigant has an adequate remedy at law, ordinarily precluding issuance of the writ. See Code Civ. Proc. § 1086 (“The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.”). The denial of a jury trialis reviewable on appeal. Nessbit, 214 Cal. at 7; Martin v. County ofL.A. (1996) 51 Cal. App. 4th 688, 698 (1996). And this Court held that because denial of a jury trial is appealable, a writ should not issue. Nessbit, 214 Cal. at 7 (“if error has been or shall be committed in determining that question, the petitioner has a sufficient remedy in the ordinary course of law by appeal.”). Nessbit, therefore, simply followsto the general rule that the right to appeal is an adequate remedy at law, which typically precludes writ relief. See Andrews v. Police Court ofStockton (1943) 21 Cal. 2d 479, 480 (The: "writ of mandate will notissue solely to serve the purposeof a writ of review in order to pass upon claimed errors which are properly reviewable by means of an appeal." (quoting Petaluma etc. District v. Superior Court, (1924) 194 Cal. 183, 184.).) Instead, the Court below decided to follow Byram v. Superior Court (1977) 74 Cal. App. 3d 648. In Byram, the court considered whether the plaintiff had waived his right to a jury trial by failing to deposit jury fees, not whether a statute afforded him a right to jury trial. After the superior court denied relief, he sought a writ from the Court of Appeal. Without citing or distinguishing Donohue or Nessbit, the Court of Appeal in Byram | simply stated: “A writ of mandate is a proper remedy to secure the right to a jury trial.” Jd at 654. That holding plainly contradicts this Court’s decisions discussed above, in which this Court held exactly the opposite. The Court of Appeal in the instant case was not bound by Byram in any respect. See Sarti v. Salt Creek Lid. (2008) 167 Cal. App. 4th 1187, 1193 (no “horizontal stare decisis” among the courts of appeal). Therefore, the Court below acted in excess ofits jurisdiction by following Byram and overruling the Demurrer. | B. This Court’s Review is Warranted to Secure Uniformity of Law Amongthe Courts of Appeal Regarding Whether Writ Review of Jury Trial Denials Is Available This Court will grant review where, as here, there is division among the Courts of Appeal. Following this Court’s decision in Donohue, the Courts of Appeal issued published opinions denying writ petitions seeking to overturn orders denying jury trials. Widney v. Superior Court ofLos Angeles County (1927) 84 Cal. App. 498, 499; Mechler v. Superior Court ofAlameda County (1927), 85 Cal. App. 353, 354. There is no way of knowing how many writ petitions have been summarily denied under Donohue and Nessbit. That is because the Courts of Appeal deny (without opinion) the vast majority of petitions for writ relief. See Judicial Council of California, 2014 Court Statistics Report, p. 31 (about 1900 original jurisdiction petitions filed in civil cases per year), p. 33 (nearly all denied without opinion) (available on the internet at http://www.courts.ca.gov/documents/20 1 4-Court-Statistics-Report.pdf, visited Sept. 21, 2014). On the other side of the split, the Court below held that writ review is appropriate, and it relied on Byram. Moreover, research discloses several other courts that have issued writs without citing or distinguishing Nessbit, Donohue, Mechler or Widney. See, e.g., Johnson-Stovall v. Superior Court (1993) 17 Cal. App. 4th 808, 812; Winston v. Superior Court (1987) 196 Cal. App. 3d 600, 603 (“Whena trial court has abusedits discretion in denying relief from a waiver ofjury trial, a writ of mandate prior to the trial ~ is the proper remedy.”). Thus, there is a split among the Courts of Appeal, providing another ' ground for this Court’s review. See Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal. 4th 655, 660 (“We granted defendants' petition for review for the sole purpose of resolving the conflict.”); City ofLos Angeles v. County ofKern (2014) 59 Cal. 4th 618, 624 (“We took review to resolve the split.”). C, This Court’s Review Is Warranted to Address Whether Health and Safety Code Section 1278.5 Sounds in Law or Equity 1. This Case Presents Important Questions of First Impression Regarding the Interpretation of Health and Safety Code Section 1278.5, a Highly Significant Healthcare and Employment-Law Statute Whethera statute confers a right to a jury trial presents an “important question”of law, the type for which this Court grants review per _ Cal. R. Ct. 8.500, subd. (b)(1). See, e.g., People v. One 1941 Chevrolet Coupe (1951) 37 Cal. 2d 283, 285 (whether law confers right to trial by jury presents an important question of law). This Court also will review questions offirst impression, suchas the one the instant case presents. See, e.g., Today's Fresh Start, Inc. v. Los Angeles County Office ofEducation (2013) 57 Cal. 4th 197, 211 (“We granted review to resolve important questions of first impression concerning the constitutionality of section 47607's charter revocation procedures.”); County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal. 4th 905, 911-912. (“Whetherthe right to privacy underarticle I, section 1 of the California Constitution prohibits disclosure is a question of first impression.”). The availability of a jury trial under section 1278.5 is an important | questionoffirst impression. As the Court below noted: “We are concerned ... with a novel question ofstatutory interpretation, which is a matter of interest to all plaintiffs who may bring suit under Health and Safety Code section 1278.5” Shaw, 229 Cal. App. 4th at 19, Slip Op.at p.7. | To help ensure quality patient care, section 1278.5 confers whistle- blowerprotection upon non-employee doctors and patients, as well as health care employees, and even administrative employees who work in acute care hospitals. See id; see also Health and Saf. Code § 1278.5, subd. (a) (Legislative declaration of policy). According to the California Hospital Association, California hospitals and health care systems employ “more than half a million people.” See California Hospital Association, Human Resources, (http://www.calhospital.org/human-resources) (visited Sept. 22, 2014). There are some 393 acute-care hospitals in California. See | California Healthcare Foundation, California Health Care Almanac, p. 3 (available on the internet at http://tinyurl.com/k5fmes (visited Sept. 22, 2014). These hospitals have over 80,000 licensed beds. Jd. at p. 13. The Legislative Analyst’s Office estimates that health care expenditures amounted to about 12% ofthe state’s gross domestic product as of 2009, the most recent data containedin its latest analysis. See -10- Legislative Analyst, Cal Facts (Jan. 2013) at p. 47 (available on the internet at http://www.lao.ca.gov/reports/2013/calfacts/calfacts_010213.pdf (visited Sept. 22, 2014). In short, section 1278.5 confers whistle-blower protection upon a broad segmentofa critical portion of this state’s economy. Therefore, the interpretation ofthis statute is a matter worthy of this Court’s review. 2. This Case Presents Important Questions ofLaw Regarding How Courts Determine Whether a Jury Trial Is Available Asthis Court has explained, “the state constitutional right to a jury trial ‘is the right as it existed at common law in 1850, when the Constitution was first adopted, “and whatthatright is, is a purely historical question, a fact whichis to be ascertained like any other social, political or legal fact.’” Franchise Tax Bd. v. Superior Court (2010) 51 Cal. 4th 1006, 1010 (citations omitted).”? The Court continued, quoting from several prior decisions: “As a general proposition, ‘[T]he jurytrial is a matter of right in a civil action at law, but not in equity.’ [Citations.]”.... “[I]f the action is essentially one in equity and the relief sought _ ‘depends upon the application of equitable doctrines,’ the parties are not entitled to a jury trial.” And “if a proceeding otherwise identifiable in some senseas a ‘civil action at law’ did not entail a right to jury trial under the commonlaw of 1850, then the modern California counterpart of that proceeding will * Although this Court in Franchise Tax Bd. granted review of a writ, the | issue was whetherthetrial court erred by refusing to strike a jury demand, not whether the court erred by ruling against a jury trial. Moreover, the Court did not consider whether writ relief was appropriate, presumably because the parties did not address the issue. See Ginns v. Savage (1964) 61 Cal. 2d 520, 524 (an opinionis not authority for a legal proposition not addressed by the court). -ll- not entail a constitutional rightto trial by jury. {Citations.]” Ibid. (internal citations omitted). “Tt is a general proposition, not an absoluterule, that the right to a jury trial attaches whenthe‘gist’ of the actionis legal.” /d. at 1011. Thus, “the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case—thegist of the action.” /d. at 1010-11. The Court below’s analysis raises important questions of law about how to determine the “gist” of an action. First, the Court rejected Real Parties’ argumentthat the statute’s remedy “reimbursementof... legal costs” is an equitable, restitutionary remedy. The Court stated that the attorney’s fees language, differing from the usual statutory language(e.g., “reasonable attorney’s fees,”), was irrelevant to the analysis. Shaw, 229 Cal. App. 4" at p.17 n.5, Slip Op. at p.4. The language “reimbursement... of legal costs”is directly relevant to the statute’s restitutionary character. This part of the Court below’s ruling is inconsistent with the standards courts apply to determine the “gist” of an action. Courts consider the remedies that a statute authorizes to determine the gist. See DiPirro v. Bondo Corp. (2007) 153 Cal. App. 4th 150, 180 (“we look to the essence of the rights conferred and the relief sought... .”(emphasis added).). By declining to consider the statutory remedy of “reimbursement”of legal costs, the Court did not give adequate consideration to the statutory language. | Second, the Court below noted that the pre-amendmentversion of section 1278.5 conferred only equitable remedies. Shaw, 229 Cal. App. 4m at p. 21 (the pre-amendment remedies “appear to be equitable only.”). The Court then held that a 2007 amendmentto the statute, adding “any remedy deemed warranted by the court pursuant to this chapter or any other -]2- applicable provision of statutory or common law,”is a remedy at law. See Shaw, 229 Cal. App. 4th at 20, Slip Op. at p. 14 (quoting Health and Saf. Code § 1278.5, subd. (g) (emphasis added),). The 2007 amendment to subdivision (g) did not create legal remedies for two reasons: One, as thetrial court found, Shaw, 229 Cal. App. 4th at p. 21, n.11, Slip Op. at p. 4 & n.6, the Legislature vested the court with the power to fashion remedies. That is the essence of the court’s powerto sit as a chancellor in equity. “A court of equity may exerciseits full range of powers ‘in order to accomplish complete justice between the parties, restoring if necessary the status quo ante as nearly as may be achieved.’” Fletcher v. Sec. Pac. Nat'l Bank (1979) 23 Cal. 3d 442, 452. Two, the Court ofAppeal did not follow the maximsofstatutory construction. Where, as here, a statute prescribesa list of specific remedies, courts apply the canonsofstatutory construction “ejyusdem generis,” -“expressio unius est exclusio alterius,” and “noscitur a sociis,” to more general language. See, e.g., Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1390-1391. See also Civ. Code § 3534 (“Particular expressions qualify those which are general.”); Harris v. Capital Growth Investors XIV (1991) 52 Cal. 3d 1142, 1160 (construing Unruh Civil RightsAct and relying on same canonsofstatutory construction), overruled on other grounds, Munson v. Del Taco, Inc. (2009) 46 Cal. 4th 661, 664. Third, this Court ofAppeal disregarded Real Parties’ citation to numerous, analogous whistle-blower type claims to establish the “gist” ofa section 1278.5 claim. Shaw, 229 Cal. App. 4th at p. 25, n. 14, Slip Op.at p. 17. Courts have ruled that anti-retaliation laws are equitable and restitutionary in nature, and that no jury trial is afforded unless the legislature so provides. To determine the “gist” of a claim,it should be relevant to consider that a jury trial is not available under other -13- whistleblowerstatutes. By accepting review, this Court may clarify the role that analogous statutes play in determining the “gist” of an action as equitable. “Iv. CONCLUSION In sum, this Court should grant the Petition for Review and reverse the judgment of the Court of Appeal. Dated: SeptembeP4, 2014 Respectfully submitted, SHAW VALENZA LLP 300 Montgomery Street, Suite 788 San Francisco, CA, 94104 Kt D. Gregory Valenza Attorneys for Real Parties in Interest, THC — Orange County, Inc., Kindred Healthcare Operating, Inc., Kindred Hospitals West, LLC, Kindred Healthcare Inc. -14- CERTIFICATE OF WORD COUNT Counsel for Real Parties in Interest certifies that its Petition for Review is 4061 words, based on the word count produced by the word processing software used to prepare thebrief. Date: semtemoe| 2014 MuglaD. Gregory Valenza -[5- APPENDIX SLIP OPINION OF THE COURT OF APPEAL SHAW V. SUPERIOR COURT NO. B254958 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT COLIRT OF APPEAL - SECOND DIST ie 7 3 DIVISION THREE mT Wty 1 [B) AUG 2 1 2914 , JOSEAL AE ert DEBORAH SHAW, B254958 o Petitioner, | (Los Angeles County Super. Ct. No. BC493928) Vv. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent; THC-ORANGE COUNTY,INC.etc., et al. Real Parties in Interest. ORIGINAL PROCEEDINGSin mandate. Alan S. Rosenfield, Judge. Petition granted. Shegerian & Associates, Inc. and Carney R. Shegerian for Petitioner. No appearance for Respondents. Shaw Valenza, D. Gregory Valenza and Jasmine L.Anderson for Real Parties in Interest. Health and Safety Code section 1278.5 prohibits a health facility from retaliating against any ofits employees for complaining about the quality of care or services provided bythe facility. The statute further providesthat an employee who has been | improperly retaliated against “shall be entitled to reinstatement, reimbursementfor lost wages and work benefits caused by the acts of the employer, and the legal costs | associated with pursuing the case, or to any remedy deemed warranted by the court pursuantto this chapter or any other applicable provision of statutory or common law.” (Health & Saf. Code, § 1278.5, subd. (g).) The question presented by the instant writ petition is whether a former employee of a health facility, alleging improperretaliation, has a right to a jury trial for her action seeking money damages underthis statute. We conclude thatshe does, and therefore grant the employee’s petition for writ of mandate. FACTUAL ANDPROCEDURAL BACKGROUND Petitioner Deborah Shaw broughtsuit against her former employers, THC — Orange County, Inc. dba Kindred Hospital — Los Angeles,’ Kindred Healthcare Operating, Inc.; Kindred Hospitals West, LLC; and Kindred Healthcare, Inc. (collectively, Kindred).” The operative complaintis the first amended complaint. Shaw alleges that, during her employment, she complained to defendants about conditions of the facilities that affected the quality of care and services provided. Specifically, Shaw 1 This defendant was named in Shaw’s complaint as THC — Orange County,Inc. In its answer,it asserted that THC — Orange County, Inc. dba Kindred Hospital — Los Angeles wasits correct name. , Shaw also named anindividual defendant, Jeffrey Sopko. The record indicates that he was dismissed on demurrer. ~ . complained that Kindred “was employing as health care professionals individuals that were not licensed andorcertified. [Shaw] also complained to [Kindred] that [Kindred] employed health care professionals who had not properly completed their competencies.” In alleged retaliation for Shaw’s complaints, Kindred took adverse employmentactions against Shaw, including her ultimate termination. Shaw’s complaint pleaded two causes of action, one for violation of Health and Safety Code section 1278.5 and one for wrongful termination in violation of public policy. With respect to her cause of action under Health and Safety Code section 1278.5,° Shaw alleged that she has suffered “past and future monetary los[s]es, loss of benefits, emotional damages, and physical injury.” Shaw sought the following relief: compensatory and emotional distress damages; lost salary (front and back pay, bonuses, and benefits); punitive damages; prejudgmentinterest; attorney fees; statutory civil penalties; and costs. Shaw did not seek reinstatement. Kindred answered and the case ultimately proceeded to trial. Immediately prior to trial, the court requested briefing on Shaw’s right to a jury trial under Health and Safety Code section 1278.5." Shaw took the position that she was entitled to a jury trial ; Thetrial court concluded that Shaw wasentitled to a jury trial on her cause of action for wrongful termination in violation of public policy. The parties do not contest that ruling; the only issue before us is whether Shaw is entitled to a jury trial on her cause of action for violation of Health and Safety Code section 1278.5. As a result, we focus the remainder ofour discussion solely on that causeof action. ‘ On March 4, 2014, the case was transferred to a new judgefortrial. It appears that, on March 5, 2014, the court asked the parties to brief the issue of whether Shaw wasentitled to a jury trial. Briefs were filed the next day. because the statute provided for lost wages and attorneyfees,° both of which were legal remedies. Kindred took the position that a claim for reimbursementof lost wages is a claim forrestitution, which sounds in equity. A hearing was held. The parties discussed each phrase in thestatute providing for a remedy, and argued over whether the statute provided for legal, as opposed to equitable, relief. As we shall discuss, we find the statutory language providing for “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law”to be key to the resolution ofthis issue. At the hearing, the court noted that this language delegates the selection of a remedy to the court, and also concludedthatthe language wasso broad that it was not appropriate for ajury to makethe determination.° 5 At the hearing on Shaw’s entitlement to a jurytrial, the trial court concludedthat whetherthe statute did, in fact, provide for attorney fees was an issue that was not relevant to the issue of whether the cause of action would proceed before a jury.. The court reasoned that if attorney fees were recoverable, they would be recovered post-trial as costs. Shaw apparently agreed; in her writ petition, she does not in any way base her argument forajury trial on any purported right to obtain attorney fees. Nonetheless, Kindred’s return appears to address the issue of whether attorney fees are recoverable in an action under Health and Safety Code section 1278.5. We agree with thetrial court; whether the statute provides for attorney fees has no impact on whether Shawis entitled to a jury trial. The issue of attorney fees is simply not relevant to the issue beforeus. 6 Kindred agreed with the court, arguing that this provision “is a typical equity provision because equity allows the Court to fashion almost any remedy that will fulfill the purposes of equity.” The court concludedthatthe statutory cause of action was purely equitable, and therefore denied Shaw’s requestfor a jury trial.’ The court stayed the matter for five days to enable Shaw to file a petition for writ of mandate. The court further certified, pursuant to Code of Civil Procedure section 166.1, that it believed “ ‘that there is a controlling question of law as to which there are substantial erounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the lrtigation.’ ” Shaw filed a petition for writ of mandate challenging the denialof a jury trial. Weissued an order to show cause. Kindred filed a return and a demurrer, in which it argued that the matter was not appropriate for writ relief. We now grant Shaw’s petition. ISSUES PRESENTED First, we consider Kindred’s demurrer to the petition, and conclude that the denial ofa jury trial in this case is a proper matter for writ relief. Second, we turn to the merits and consider whether Health and Safety Code section 1278.5 provides fora jury trial. We conclude that the statutory language and legislative history of the statute reflect an intent to permit a jury trial. Moreover, even apart from this evidence of legislative intent, we concludethat a jury trial is appropriate as the gist of Shaw’s cause of action sounds in law rather than equity. 7 The court ruled that it would hear the statutory cause of action concurrently with - the jury trial on the causeof action for wrongful termination in violation of public policy, DISCUSSION 1. | Writ ReliefIs Appropriate Relying on Nessbit y, Superior Court (1931) 214 Cal. 1 Wessbit), Kindred argues that the denial of a jury trial is an inappropriate matter for writ relief. In Nessbit, the California Supreme Court stated, “This court and the District Court of Appeal have squarely held in numerouscivil and criminal actions and proceedings not amounting to a felony that mandate is not the proper remedytotest the right toa jury trial. Thatis a question of law which the superior court has jurisdiction to hear and determine, andif error has been orshall be committed in determining that question, the petitioner has a sufficient remedy in the ordinary course of law by appeal.” (/d. at p. 7.) Although Nessbit has not been reversed, subsequent appellate authority has taken’ an apparently. contrary position. In Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654 (Byram), the Third District Court ofAppeal held, “A writ of mandate is a proper remedy to secure the right to a jury trial. [Citation.] ... [E]ven if [the appellant] could [obtain] reversal of the judgment[after a benchtrial], such a procedure would be inefficient and time consuming.” | Kindred acknowledges that Byram appears to conflict with Nessbit, and argues that, as an intermediate appellate court, we are bound to follow the Supreme Court’s decision in Nessbit. However, we concludethat the opinions can be harmonized. Nessbit acknowledged that mandate is appropriate when there is no plain, speedy, or adequate remedy in the ordinary course of law. (Nessbit, supra, 214 Cal. at p. 9.) The Supreme Court further notedthat it had “frequently exercised this power in cases in | which matters of great public interest are involved and in cases in which great and irreparable injury would result if the case was relegated to the ordinary course provided by law.” (bid) It concluded, 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 writ review. Weconcludethat the instant caseis appropriate for writ review. Weare 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 interest to all plaintiffs who may bring suit under Health and Safety Code section 1278.5. Moreover, the trial court certified that immediate resolution of the question “may materially advance the conclusionofthe litigation.” We therefore overrule Kindred’s demurrer to the writ petition, and proceed to resolve the petition on its merits. 2. The Right to a Jury Trial Most cases involving a party’s assertion of a right to a jury trial are based on the guaranteeofa jury trial as set forth in article I, section 16 of the California Constituti on. However, sometimesit is asserted that a statute grants the patties the right to a jurytrial on claims asserted pursuantto that statute. In this case, we first consider thestatute, then turn to the constitutional grant. a. The Language and Legislative History ofHealth and Safety Code Section 1278.5 “Our duty, where a claim is madethat a statute grants the rightto a jurytrial, is to determinethe legislative intent so as to effectuate the purposeofthestatute. [Citation.]” (Widson v. International Harvester Co. (1984) 153 Cal.App.3d A5, 56, superseded by statute on another ground.) We look at both the statutory language and the legislative history. (/bid.) Health and Safety Code section 1278.5 provides protection for health care whistleblowers. Subdivision (a) of that section explains: “The Legislature finds and declares that it is the public policy of the State of California to encourage patients, nurses, members of the medical staff, and other health care workers to notify governmententities of suspected unsafe patient care and conditions. The Legislature encourages this reporting in order to protect patients and in orderto assist those accreditation and governmententities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations.” The statute goes on to provide that “[nJo health facility shall discriminate or retaliate, in any manner, against any patient, employee, memberofthe medicalstaff, or any other health care worker of the health facility because that person” has done any protected act, including complainingto the facility regarding the quality of care, services or conditionsat the facility. (Health & Saf. Code, § 1278.5, subd. (b)(1).) The statute provides for a civil penalty, to be recovered administratively.® (Health & Saf. Code, § 1278.5, subd. (b)(3).) 8 Tt further provides that a willful violation is a misdemeanor, punishable by fine. (Health & Saf. Code, § 1278.5, subd. (£).) In addition, the statuteprovides for a civil action by a wronged employee, health care worker, or member of the medicalstaff. As to an employee,the statute provides: “An employee who has been discriminated against in employment pursuantto this section shall be entitled to reinstatement, reimbursementfor lost wages and work benefits caused by the acts of the employer, and the legal costs associated with pursuing the case,Or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.” (Health & Saf. Code, § 1278.5, subd. (g).) We must determine whetherthe legislature’s intent in enacting this language was to provide for a jury trial. If the language provided only for “reinstatement, reimbursement for lost wages and workbenefits caused by the acts of the employer, and the legal costs associated with pursuing the case,” an argument could be made that these remedies were only equitable, and did not provide a jurytrial right. (See, e.g., Dyna-Med, Inc, v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [reinstatement with back pay is a wholly equitable remedy].) But the statutory language goes on to provide for “any remedy deemed warranted by the court pursuant to this | chapter or any other applicable provision of statutory or common law.” Kindred asks us to interpret this phrase as a simple codification of the principlethat a court sitting in equity has the power to provide extraordinary relief. (Martin v. County ofLos Angeles (1996) 51 Cal.App.4th 688, 696.) Yet the statutory language goes beyond equitable , Similar, but not identical, relief 1s provided for wronged health care workers and members of the medical staff. (Health & Saf. Code, § 1278.5, subd. (g).) powers, allowing the court to provide any remedy under any “applicable provision of statutory or common law.” Statutory remedies are not equitable; many,if notall, commonlaw remedies arealso not equitable.‘” Thus, the statutory language allows for legal as well as equitable remedies, giving rise to the inference that a jury trial was contemplated by the legislature.” Thelegislative history confirms this interpretation of the statutory language. When Government Code section 1278.5 was originally enacted, in 1999, the “or to any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision ofstatutory or common law” language was notpresent. Instead, former subdivision (g) provided only: “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 associated with pursuing the case.” As noted above, these remedies appear to be equitable only. The language expanding the remedies was added by a 2007 amendment to the statute. (Stats. 2007, ch. 683, § 1.) 10 Black’s Law Dictionary (9th ed. 2009) provides multiple definitions of the term “commonlaw.” While the term may mean “[t]he body of law derived from judicial decisions, rather than from statutes or constitutions,” it can also mean, in reference to American commonlaw,“[t]he body of law deriving from law courts as opposed to thosesitting in equity.” » nM Thetrial court had reasoned that, since the statutory language provides that the remedy is to be chosen “by the court,” this is not a determinationleft to a jury. The result does not follow. The court is to select the appropriate remedy, but if the remedy is legal rather than equitable, the court should properly instruct the jury on the factual determinations the jury must make in order to award that remedy. 10 AS originally proposed, the 2007 amendment did not broaden the remedies. (Assem. Bill No. 632 (2007-2008 Reg. Sess.) § 1, as introduced.) Prior to the 2007 amendment, the statute protected only employees of health facilities, not health care workers and membersofthe facilities’ medical staffs (physicians). The initial purposeofthe 2007 amendment was to extend the statute’s protection to health care workers and members of the medical staffs, who might not be employees ofthe health facilities. The question arose as to whether extending the protections to those categories of individuals required extending the remedies. A bill analysis prepared by the Senate Judiciary Committee raised the question in the following language: “Current 1278.5 in fact enumerates various remedies for an employee whohas been discriminated or retaliated against: reinstatement, reimbursement for lost wages and work benefits caused by the employer’s actions, and legal costs associated with pursuing the whistleblower’s case underthe statute. Because the physician and medicalstaff are mostlikely not employees of a hospital, the remedies available to them could be entirely different, depending on theretaliatory action that was taken. [‘[] According to the [California Medical Association], examples of actions a hospital can take to suppress physician-whistleblowersor to retaliate against them are: (1) underwriting the salary and/or practice expenses of a competing physician; (2) establishing a medical care foundation and supporting its physicians with hospital funds; (3) recruiting competing physicians to the community in the absence of a community deficit for that specialty, (4) establishing a medical practice administrative service companyfor selected physicians and charging below marketrates so that the doctor keeps a higher percentage 11 of the collections and gains a competitive advantage; (5) buying the medical building with the physician’s office and refusing to renew the physician’s lease; (6) inducing primary care physicians to refer patients to the hospital outpatient facility for tests, bypassing the specialist’s office-based testing (e.g., imaging and cardiac tests); (7) providing special scheduling priorities for hospital facilities; (8) underwriting certain physicians and empowering them with controlor influence over the peer review process; (9) developing investment pattnerships with selected physicians (surgery center, MRI center) that provide lucrative annual returns on investment(e.g., 50% return on investment (ROI) annually); and (10) providing special equipmentleasing arrangements for selected physicians with above market ROI. [{] AB 632 however would provide only the following remedies to a physician who was discriminated or retaliated against: reinstatement (of privileges’), reimbursementfor lost income resulting from any changein the termsofr] conditions of his or her privileges caused by the health facility’s acts or acts of any other facility owned or operated by the entity, and the legal costs of pursuing the case. [{] It would seem that noneof these remedies would give adequate redress to a physician who suffered any of the retaliatory acts named above. [{] SHOULD THERE BE A CATCH-ALL PROVISION FOR A COURT TO FASHION WHATEVER REMEDY WOULDFIT THE RETALIATORY ACT?” (Sen. Com. on Judiciary, Analysis of Assem. Bill 632 (2007-2008 Reg. Sess.) as amended June 6, 2007, pp. 8-9.) The analysis further questioned whether the bill should be amended to provide similar additional remedies for other health care workers as well. (Ud.at p. 9.) . 12 Such language was,in fact, added to the bill in a July 17, 2007 amendment. This language provided that a wronged employee was entitled to “any remedy deemed warranted by the court pursuant to this chapter or any other applicable provision of statutory or common law.”(Assem. Bill No. 632 (2007-2008 Reg.Sess.) § 1, as amended July 17, 2007.) A subsequentbill analysis explained that this amendment “Ts]peciffies] that, for damages to any employee,health care worker, or memberof the medical staffwho has been discriminatedorretaliated against, he or sheis entitled to any remedy deemed warranted by the court in lieu of reinstatement, reimbursement for lost wages and work benefits, and legal costs.” (Bill Analysis, Concurrence in Senate Amendments on Assem. Bill 632 (2007-2008 Reg. Sess.) as amended September 5, 2007, p. 1.) It is apparent, from this legislative history, that the language at issue was added to Health and Safety Code section 1278.5 to ereatly broaden the scope of the remedies availableto 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 forall of the methodsofretaliation raised by the California Medical Association and discussed in the Senate Judiciary Committee’s bill analysis. While some of the methodsofretaliation might be resolved with equitable remedies(e.g., if the health facility buys the medical building with the physician’s office and refuses to renew the physician’s lease, an order directing the health facility to renew the lease may v That same phrase wasalso addedto the language of the bill discussing the remedies available to wronged health care workers and members of the medical staff. 13 be an appropriate remedy), other methods of retaliation involve undermining the physician’s practice by underwriting competitors, and can only be remedied by an award of monetary damages. Indeed,it is impossible to look at the wide range of methods ofretaliation discussed in the Senate Judiciary Committee’s bill analysis and conclude that the legislature did not intend to grant courts the discretion to award remedies at law. In short, the statutory language andits legislative history greatly expanded the remedies available under Health and Safety Code section 1278.5, subdivision (g), from equitable remedies to remedies available in law and equity. As such, the statute provides for a jury trial on legal issues.° b. The Historical Analysis and Remedy Sought Our result is confirmed by an analysis under the constitutional right to a jury. trial. “ ‘The California Constitution guarantees the right to a jury trial in a civil action at law.’ [Citation.] Pursuantto article I, section 16 of the California Constitution, trial by jury is ‘ “an inviolate right,” ’ ‘ “a basic and fundamental part of our system of jurisprudence. ... As such, it should be zealously guarded by the courts.... In case of doubt therefore, the issue should be resolved in favor ofpreservinga litigant’s right to 8 “Where a ‘mixed bag’ of legal and equitable claims is presented in a case, a court trial of the equitable claims first may obviate the necessity of a jury trial on the legal. claims, but otherwise the plaintiff cannot be denied the right to a jurytrial on the legal causes of action. [Citations.] If ‘there are equitable and legal remedies sought in the same action, the parties are entitled to have a jury determine the legal issues unless the trial court’s initial determination of the equitable issues is also dispositive of the legal issues, leaving nothing to be tried by a jury.’ [Citation.]” (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 185.) . 14 trial by jury.” [Citation.]’ [Citations.]” (DiPirro v. Bondo Corp., supra, 153 Cal.App.4that p. 176.) | “ “The right to a jury trial is guaranteed by our Constitution. [Citation.] We have long acknowledged that the right so guaranteed, however, is the rightas it existed at - common law in 1850, when the Constitution wasfirst adopted, “and whatthat rightis, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.” [Citations.] As a general proposition, “[T]he jurytrial is amatter of right in a civil action at law, but not in equity.” [Citations.]’ ” (Martin y. County ofLos Angeles, supra, 51 Cal.App.4th at p. 694.) coe “Tf the action has to deal with ordinary common-law rights cognizable in courts of law,it is to that extent an action at law. In determining whetherthe action was one triable by a jury at common law,the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case—the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law.” [Citation.] On the other hand,if the action is essentially one in equity and the relief sought ‘depends upon the application of equitable doctrines,’ the parties are not entitled to a jury trial.” [Citation.]’ [Citations.]” (DiPirro v. Bondo Corp., supra, 153 Cal.App.4th at p. 179.) “The form of relief sought in the complaint, although not wholly determinative, is a reliable indicatorof the ‘gist’ of the action. Thus, ‘Actions at law usually seek a money judgment for damages. while equitable actions seek some form of specific relief and equity decrees are usually in personam.’ [Citation.] The extraordinary 15 powers of equity authorize courts sitting in equity to provide extraordinary relief. An equity court may, for example, order specific performance of a contract, enjoin the defendant from engaging in certain activities, partition real property, or impose a constructive trust on the defendant’s assets, all powers beyond the jurisdiction of courts of law. Perhaps the most basic rule governing equity jurisdiction is that ‘... there is no right to equitable relief or an equitable remedy when there is an adequate remedy at law.’ {Citation.]” (Martin v. County ofLos Angeles, supra, 51 Cal.App.4th at pp. 695-696.) The proper analysis, under the constitutional right to jury trial, begins not with the relief sought in the pleadings, but with the historical analysis. (DiPirro v. Bondo Corp., supra, 153 Cal.App.4th at p. 179.) The fact that a particular statute did not exist in 1850 does not meanthat there is no right to a jury trial under that statute. “ ‘[T]he right to a jury trial does not entirely depend upon the existence of a particular right of action in 1850. [Citation.] Rather, it exists when a current case is of the same “class” or “nature” as one which existed in 1850.’ [Citations.] ‘[T]he fact that the particular statute or offense was not in existence when the Constitution was adopted is not determinative; if the same type or class’ of action ‘called for a jury trial, the rightis carried over to the new statute.’ [Citation.]”. Ubid.) “The right to trial by jury is not inapplicable to causes of action based onstatutes, but applies to actions enforcing statutory rights ‘if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.’ | [Citation.] Where, as here, we are decidingif a jury trial is required and have been 16 presented with a statutory scheme that was not known at common law in 1850, as with any other action we look to the essence ofthe rights conferred andtherelief sought * “the ‘gist of the action? Ifthe ‘gist’ is legal, as opposed to equitable, we have recognized a right to jury trial. [Citations.]” [Citation.]’ {Citation Wethus first * “compare the statutory action to 18th-century actions brought in the courts of England prior to the merger ofthe courts of law and equity,” ’ and then ‘ “examine the remedy sought and determine whether it is legal or equitable in nature.” ’ [Citation.]” (DiPirro v. Bondo Corp., supra, 153 Cal.App.4th at p. 180.) The parties agree that there was nostatutory protectionfor health facility whistleblowers in 1850. We thus must consider the gist of the action brought, in order to determine whetherit is of the same type of action which was heard atlaw, rather than equity, at that time.” The remedies sought are relevant to, but not necessarily determinative of, this analysis. In this case, Shaw is not seeking reinstatement. Instead, because ofKindred’s alleged statutory violation, Shaw allegedly suffered lost wages, emotionaldistress, and physical injuries, for which she seeks monetary compensation. Thegist of Shaw’s action is the statutory violation; although it could also be viewed as an action for breach “4 Kindred compares Health and Safety Code section 1278.5 to other whistleblower statutes, in state and federal law, and considers the remedies available in actions under: those statutes, in order to determine the gist of the action. As these statutes did not exist in 1850, they are simply irrelevant to our analysis. Moreover, none ofthe statutes on . which Kindred relies has similar language to the remedial provision in Health and Safety Code section 1278.5 (compare Health & Saf. Code, § 1432; Lab. Code, § 132a; 42 U.S.C. § 2000e-3). They are therefore of no use in determining the intent of the | legislature in enacting the language of Health and Safety Code section 1278.5.) 17 of a term implied (by statute) into her employment contract, or an action for damages for personal injury. At common law, each of these classes of actions wastriable by jury. (Wegneret al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2013) 7 2:89, p. 2-18 [damagesfor violation of a statute]; id. at J 2:84, p, 2-17 [damages for breach of contract]; 7 Witkin, Cal. Proc. (Sth ed. 2008) Trial, § 84, p. 111 [damages for personalinjuries].) Thus, the historical 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 sheis entitled to a jury trial. 18 DISPOSITION Shaw’s petition for writ ofmandate is granted. Let a writ issue directingthetrial court to vacate its order denying Shaw’s request for a jury trial on her Health and Safety Code section 1278.5 cause of action, and to enter a new anddifferent order granting the request. Shaw is to recover her costs in connection with this writ petition. CERTIFIED FOR PUBLICATION CROSKEY,J. WE CONCUR: KLEIN,P. J. ALDRICH,J. 19 CERTIFICATE OF SERVICE I, Carolyn Angel, declare that I am employed with the law firm of Shaw Valenza LLP, whose address is 300 MontgomerySt., Ste. 788, San Francisco, California 94104; I am over the age of eighteen (18) years and am nota partyto this action. On September 29, 2014, I served the attached PETITION FOR REVIEW in this action by placing a true and correct copy thereof, enclosed in sealed envelope(s) addressed as follows below: [X] BY MAIL: United States Postal Service by placing sealed envelopes with the postage thereon fully prepaid, placed for collection and mailing on this date 2 following ordinary business practices, in the United States mail at San Francisco, California. Bruce Kokozian, Esq. Carney R. Shegerian, Esq. Kokozian Law Firm, APC Shegerian & Associates, Inc. 8383 Wilshire Blvd., Suite 1018 225 Arizona Avenue, Suite 400 Beverly Hills, CA 90211 Santa Monica, CA 90401 Tele: 323-857-5900 Tele: 310-860-0770 Fax: 323-935-4919 Fax: 310-860-0771 Attorneys for Petitioner Deborah Shaw Attorneys for Petitioner Deborah Shaw California Court of Appeal Los Angels County Superior Court Second Appellate District Central District Division Three Stanley Mosk Courthouse 300 S. Spring Street 111 North Hill Street 2nd Floor, North Tower Los Angeles, CA 90012 Los Angeles, CA 90013 Tele: (213) 974-5195 Tel: (213) 830-7000 I declare under penalty of perjury under the laws of the United States of America that the aboveis true and correct; executed on September 29, 2014, at San Francisco, California. /s/ Carolyn Angel