1

Filed 12/7/22 Mendones v. Washington Hospital Healthcare System CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified 

for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

MARIDOL C. MENDONES,

Plaintiff and Appellant,

v.

WASHINGTON HOSPITAL 

HEALTHCARE SYSTEM,

Defendant and Respondent.

 A165164

 (Alameda County

 Super. Ct. No. HG19013225)

Maridol C. Mendones appeals from an order and judgment of 

dismissal in favor of her former employer Washington Hospital 

Healthcare System (WHHS or the hospital). 

Mendones contends the trial court erred in sustaining a demurrer 

to her second amended complaint (SAC) without leave to amend the 

causes of action for breach of contract, wrongful termination, 

retaliation, and discrimination. We agree. As explained below, we find 

the SAC alleges a cause of action for retaliation under the Fair 

Employment and Housing Act (Gov. Code, § 12940; FEHA), and 

Mendones may be able to amend the SAC to allege causes of actions for 

breach of contract, wrongful termination, and discrimination under 
2

FEHA (Gov. Code, §§ 12935, 12960). Accordingly, we shall reverse and 

remand for further proceedings consistent with this opinion. 

FACTUAL AND PROCEDURAL BACKGROUND1

A. Mendones’ Employment with WHHS

On July 13, 2015, WHHS hired Mendones as a per diem2 “staff 

nurse II” in the medical-surgical and telemetry unit, working under the 

supervision of a nurse manager. According to Mendones, her “job 

performance evaluation was outstanding,” and she had received a 

September 2017 “recommendation letter” from her nurse manager.

While working at the hospital, Mendones was a member of the 

California Nurses Association (CNA), which had a collective bargaining 

agreement (CBA) with the hospital. The agreement was in the form of 

a Memorandum of Understanding (MOU), which directed the hospital 

1 We set forth only those facts necessary to resolve this appeal. 

Because an appellant may even rely on statements made for the first 

time on appeal to demonstrate a reasonable possibility the complaint 

can be amended to state a cause of action (Eghtesad v. State Farm 

General Insurance Co. (2020) 51 Cal.App.5th 406, 414), we have taken 

the facts from the SAC’s allegations, as well as the factual allegations 

made in Mendones’ trial court opposition to the demurrer and her 

motion for reconsideration. 

By our order of June 20, 2022, we took judicial notice of the 

superior court record filed in a prior appeal (Mendones v. Washington 

Hospital Healthcare System (dec. Feb. 16, 2022, A162989) [nonpub. 

opn.]), and deemed it incorporated into the record of this appeal (Cal. 

Rules of Court, rule 8.147). On our own motion, we take judicial notice 

of our records on the prior appeal in case No. A162989. (Evid. Code.,

§ 452, subd. (d) [“[j]udicial notice may be taken of the following matters 

. . . [¶] . . . [¶] (d) Records of (1) any court of this state . . . .”].) 

2 “Per diem” referred to non-benefited employees who worked a 

flexible or sporadic work schedule and were hired on an as-needed 

basis. 
3

to furnish CNA with copies of all work rules and rules of conduct 

pertaining to employees within CNA’s jurisdiction; this included 

Memorandum #2-95 E, titled Employee Disciplinary and Involuntary 

Separation Procedures (Memo #2-95E).

The MOU included provisions regarding the terms and conditions 

of employment for per diem nurses, including compensation at 

minimum rates as set forth in an Appendix A. The MOU also 

addressed the rules governing a nurse’s conduct while employed by the 

hospital. Specifically, WHHS was granted “the right to assess 

disciplinary action or discharge any Nurse for just cause”; if, in the 

opinion of CNA, an employee had been unjustifiably discharged or 

disciplined, “such discharge . . . or discipline shall be subject to the 

grievance procedure.” 

The MOU’s “grievance adjustment and arbitration” provision 

allowed for a review procedure to “cover all Nurse complaints and 

grievances.” The procedure consisted of four steps: Step One –

Department Review; Step Two – Administrative Review; Step Three –

Grievance Committee; and Step Four – Arbitration. Time limits were 

set for the filing of grievances and for each step of the review 

procedure, with the proviso that the time limits could be modified by 

mutual consent of the concerned parties. Additionally, Memo #2-95E 

included a provision that in the case of disciplinary action, a nurse’s 

supervisor had the “ ‘option’ ” to place the nurse “ ‘on temporaryindefinite suspension without pay.’ ” 

On November 20, 2017, the hospital’s Director of Human 

Resources informed Mendones that she was being placed on indefinite 

paid suspension pending an investigation of a complaint concerning her 
4

“medication administration.”3 According to Mendones, the specific 

complaint concerned her “unusual trend of [cancelling] medication 

transaction[s]” from an automated medication dispenser,

4 which 

purportedly resulted in the loss of medication. 

Mendones was told to continue to submit a work schedule with 

her availability and that it would be used to determine her salary

consistent with the regulations applicable to her status as a per diem 

employee under the CBA. Mendones submitted her work schedules to 

her nurse manager and was paid based on her submitted work 

schedules from November 20, 2017 to December 30, 2017.

However, on January 1, 2018, salary payments were stopped 

without explanation despite Mendones continuing to be on indefinite

3 Mendones later received two written notices of her suspension, 

both dated November 29, 2017. A “notice of disciplinary suspension of 

employment with pay” informed Mendones that she had been 

suspended with pay starting November 20, 2017 due to the following 

circumstances: “Complaint on Medication Administration.” A “notice of 

investigatory suspension of employment” informed Mendones that she 

had been suspended with pay for an indefinite period pending 

investigation of the following circumstances: “Pursuant to 

Memorandum # 2-95E of Employee Disciplinary [a]nd Involuntary 

Separation Procedures, the Administrators decided to place you on 

indefinite paid suspension for Complaint on Medication 

Administration. [¶] Payment will be based according to your submitted 

work schedule as requisite for Per Diem employee.”

4 According to Mendones, the automated medication dispenser is a 

cart/cabinet containing all medications used throughout the hospital. 

Each medication cart/cabinet is linked to the main computer 

maintained by the hospital’s Pharmacy Department, where all 

medication information is stored. “Staff are given access to the 

. . . medication unit (medstation) via a password or biometric 

identification (fingerprint scan).”
5

paid suspension.

5 Mendones inquired of hospital employees concerning 

the stopped salary payments and her status as an employee but 

received no response. Consequently, she sought advice from CNA’s 

representatives and counsel. During the last week of February 2018, 

Mendones filed a report with the California State Department of 

Industrial Relations Labor Commissioner’s Office about WHHS’s 

refusal to pay her salary during her indefinite paid suspension. She 

did not pursue the claim after learning she was still employed by the 

hospital. 

On April 5, 2018, Mendones sent text messages to her nurse

manager. In those messages, she complained that “I’m the only one 

investigated and yet hundreds of staff accessed the [medication 

dispenser] where missing pills” were stored. The nurse manager 

responded “I wish I have [sic] an answer for you Maridol.” Mendones 

sent a response that many others accessed the medication dispenser 

and did cancellations and yet she was the only one investigated, which 

was “discrimination.” The nurse manager then responded “I’m afraid, 

yes, it seems like that . . . I’m sorry for you.” 

After the completion of WHHS’s investigation, Mendones was 

fired on May 16, 2018 for “excessive medication cancellation 

transaction[s]” resulting in the loss of medication, as well as for 

violations of patient confidentiality and a violation of the CBA.

5 Mendones further alleged that despite the lack of salary 

payments, she continued to submit her work schedules, which 

continued to be accepted by her nurse manager, until she was 

terminated on May 16, 2018.
6

On May 23, 2018, Mendones asked her nurse manager what

provision of the CBA she had violated. Her nurse manager responded

that Mendones had violated the CBA by making a report to the Labor

Commission regarding her unpaid suspension while she was still 

employed by the hospital. Mendones responded that she thought she 

was protected from discharge under the law, indicated her intention to 

“proceed to step one grievance,” and requested the nurse manager’s 

availability to meet and confer as he was responsible for handling that 

initial step of the grievance procedure. 

B. Trial Court Proceedings

On April 2, 2019, one month after receiving a right to sue letter 

from the Department of Fair Employment and Housing (DFEH), 

Mendones filed a complaint against WHHS for monetary damages and 

other relief. The pleading at issue on appeal is the SAC, filed after the 

trial court sustained demurrers with leave to amend as to both the 

complaint and first amended complaint. 

The SAC’s first four causes of action seek monetary damages for 

the failure to pay her salary while on indefinite paid suspension and for 

her later termination. Under the cause of action for breach of contract

(first cause of action), Mendones sought monetary relief primarily 

premised on an allegation that she was entitled to be paid from 

January 1, 2018 to May 16, 2018 while on indefinite paid suspension 

(first cause of action). Under the causes of action for wrongful 

termination, retaliation, and discrimination, Mendones sought 

monetary relief for her termination, primarily based on allegations that 

her termination (1) was not based on “just cause” (second cause of 

action); (2) was retaliation for the protected activity of filing a report 
7

with the Labor Commissioner regarding her failure to receive salary 

payments while on indefinite paid suspension and due to a “pending 

court action” (third cause of action); and (3) was discriminatorily 

motivated because there were many staff members, including nurses of 

Mendones’ similar age (over 40), gender (female), and nationality 

(Filipina), who all performed medication administration in the same 

manner, but Mendones was the “ ‘only one’ ” who was investigated, 

suspended, and terminated based on medication administration (fourth 

cause of action). The complaint also included causes of action for 

professional negligence and defamation. 

On October 21, 2020, the trial court sustained the demurrer to 

the SAC (1) without leave to amend the causes of action for breach of 

contract, wrongful termination, retaliation, and discrimination, and (2) 

with leave to amend the causes of action for professional negligence and 

defamation, except that the demurrer was sustained without leave to 

amend as to an allegation that WHHS purportedly made defamatory 

comments about Mendones to the Board of Registered Nursing. The

court specifically ordered Mendones to file a third amended complaint 

(TAC), which pleading was to exclude the stricken causes of action, and 

was to include only the fifth (professional negligence) and sixth 

(defamation) causes of action “within 10 court days of the publication of 

this order.” When Mendones failed to timely file a TAC, WHHS moved 

ex parte to dismiss the action; in response Mendones filed her TAC, 

limited to causes of action for professional negligence and defamation, 

and excluding the stricken causes of action.
8

On January 8, 20216, the court denied WHHS’s ex parte motion 

to dismiss without prejudice and noted the “matter” would be resolved 

at a case management conference scheduled for February 1. Following 

that conference, the court dismissed the case without prejudice. 

On May 4, Mendones filed a motion seeking reconsideration of 

the court’s adverse rulings on the demurrer to the SAC and a request to 

file a TAC, limited to causes of action for professional negligence and 

defamation as permitted by the October 21, 2020 demurrer order. 

WHHS opposed Mendones’ motion and request as both untimely and 

without merit. 

The motion seeking reconsideration was argued and submitted at 

a May 27 hearing. On June 10, the court issued an order denying the 

motion for reconsideration as both untimely and without merit. The 

court also denied the request to file a TAC for failure to timely file the

proposed pleading. 

On March 14, 2022, the trial court entered an order and 

judgment (one document) dismissing the action without prejudice. 

Mendones’ timely appeal ensued.

7

6 Unless otherwise noted, all future dates were in 2021. 

7 By her notice of appeal, Mendones seeks review of the 

March 14, 2022 order and judgment of dismissal, as well as review of 

the October 21, 2020 order sustaining the demurrer to the SAC (with 

and without leave to amend) and the June 10, 2021 order denying her 

motion for reconsideration. We previously dismissed Mendones’ earlier 

attempt to challenge the October 21, 2020 order because the record 

provided on that prior appeal contained only an unsigned order of 

dismissal, which was not a valid judgment of dismissal. (Mendones v. 

Washington Hospital Healthcare System, supra, A162989 at p. 4.) In 

our decision (id. at p. 6), we informed Mendones that she could file a 
9

DISCUSSION

Mendones challenges the October 21, 2020 order to the extent 

that the trial court sustained the demurrer to the SAC without leave to 

amend the causes of action for breach of contract, wrongful 

termination, retaliation, and discrimination. 

I. Legal Framework for Review of Demurrer 

On appeal, we review the demurrer order de novo,

8 as “[a] 

demurrer tests the sufficiency of a complaint by raising questions of 

law.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517 (Rodas).) 

“Because a demurrer raises only questions of law, ‘ “an appellant 

challenging the sustaining of a general demurrer may change his or her 

theory on appeal [citation], and an appellant court can affirm or reverse 

the ruling on new grounds. [Citation.] After all, we review the validity 

of the ruling and not the reasons given.” ’ ” (Harris v. Wachovia 

Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1022.) 

In resolving the merits of a demurrer, “all material facts pleaded 

in the complaint and those that arise by reasonable implication, . . . are 

subsequent appeal if she obtained a valid judgment of dismissal, which 

she obtained on March 14, 2022. 

We dismiss the separate appeals from the October 21, 2020 and 

the June 10, 2021 orders as they are not separately appealable and are 

reviewed on the appeal from the March 14, 2022 judgment. (See Torres 

v. City of San Diego (2007) 154 Cal.App.4th 214, 222 [“there can only be 

one ‘final judgment’ in an action”]; see Code Civ. Proc., § 906 [“[u]pon 

an appeal pursuant to Section 904.1 or 904.2, the reviewing court may 

review the . . . decision and any intermediate ruling, proceeding, order 

or decision which involves the merits or necessarily affects the 

judgment or order appealed from or which substantially affects the 

right of a party . . . .”].) 

8 Accordingly, we do not separately address Mendones’ contention 

that the trial court erred in denying her motion for reconsideration.
10

deemed admitted by the demurring party. [Citations.] The complaint 

must be construed liberally by drawing reasonable inferences from the 

facts pleaded.” (Rodas, supra, 87 Cal.App.4th at p. 517.) Where, as in 

this case, the demurrer is based on a claim that the pleading does not 

state “ ‘facts sufficient to constitute a cause of action, the rule is, that if 

upon a consideration of all the facts stated, it appears that the plaintiff 

is entitled to any relief at the hands of the court against the 

defendants, the complaint will be held good, although the facts may not 

be clearly stated, or may be intermingled with a statement of other 

facts irrelevant to the cause of action shown, or although the plaintiff 

may demand relief to which he is not entitled under the facts alleged.’ ” 

(Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) “[W]e are not 

concerned with plaintiff’s possible inability or difficulty in proving the 

allegations of the complaint.” (Ibid.)

We review the trial court’s denial of a request for leave to amend 

for an abuse of discretion. (Schifando v. City of Los Angeles (2003) 31 

Cal.4th 1074, 1081.) “The appellant has the burden to identify specific 

facts showing the complaint can be amended to state a viable cause of 

action. [Citation.] An appellant can meet this burden by identifying 

new facts or theories on appeal.” (Minnick v. Automotive Creations, 

Inc. (2017) 13 Cal.App.5th 1000, 1004; see Code Civ. Proc., § 472c, 

subd. (a) [“[w]hen any court makes an order sustaining a demurrer 

without leave to amend the question as to whether or not such court 

abused its discretion in making such an order is open on appeal even 

though no request to amend such pleading was made”].)9

9 We find no merit to WHHS’s contention that by filing a TAC, 

albeit belatedly, Mendones waived any argument that the trial court 
11

II. The Demurrer to the Causes of Action for Breach of 

Contract and Wrongful Termination was Wrongly

Sustained without Leave to Amend 

Mendones based her first cause of action for breach of contract on 

two claims. One, that WHHS had breached an oral and implied

agreement or promise to pay her salary during her indefinite paid 

suspension. Two, that WHHS had breached the following provisions of 

the CBA: (1) “ ‘[t]he hospital shall notify any nurse who is being 

suspended from employment of the nurse’s right to have a nurse 

representative present during the formal presentation of such notice of 

suspension;’ ” (2) “ ‘[i]f a nurse is dissatisfied with a decision or a 

condition affecting her employment, the nurse and her authorized 

representative shall first meet and discuss the matter with her 

department head;’ ” (3) after plaintiff was terminated, she was 

erred by sustaining the demurrer to the SAC without leave to amend 

the causes of action for breach of contract, wrongful termination, 

retaliation, and discrimination because she did not include those 

stricken causes of action in the filed TAC. Unlike Metzenbaum v. 

Metzenbaum (1948) 86 Cal.App.2d 750, and Gaglione v. Coolidge (1955) 

134 Cal.App.2d 518, cited by WHHS, the trial court here did not 

sustain the demurrer to the SAC with leave to amend all of the causes 

of action. Rather, the court specifically sustained the demurrer without 

leave to amend four causes of action and directed that any new TAC 

was to include only causes of action for professional negligence and 

defamation, and not the stricken causes of action. Because the court’s 

order did not sustain the demurrer as to the entirety of the SAC, those 

portions of the order sustaining the demurrer without leave to amend 

causes of action for breach of contract, wrongful termination, 

retaliation, and discrimination remain “open on appeal,” and 

Mendones, as “a party aggrieved,” “may claim the order as error in an 

appeal from the final judgment in the action.” (Code Civ. Proc., § 472c, 

subds. (b), (c).) 
12

“’entitled [to have] step one grievance proceeding within ‘14 calendar 

days’ by her department head/unit manager. . . and thereafter up to 

Step four grievance;” and (4) WHHS’s “ ‘[t]echnology must be consistent 

with the provision of safe, therapeutic, effective care, which promotes 

patient safety,’ ” and “ ‘[t]he manner in which technology is used shall 

support patient confidentiality.’ ” The second cause of action for 

wrongful termination was premised on the allegation that WHHS had 

breached the CBA’s express provision that a nurse could only be 

terminated for just cause. 

In sustaining the demurrer without leave to amend, the trial 

court found the causes of action for breach of contract and wrongful 

termination failed to state facts sufficient to support those claims. The 

trial court also found the claims were governed by section 301 of the 

Labor Management Relations Act (29 U.S.C. § 185) (hereinafter section 

301), which as a general rule directs state courts to apply federal labor 

law to lawsuits related to CBAs. Applying federal law, the court stated: 

“It is well established that where a collective bargaining agreement 

provides for grievance and arbitration procedures in the event of an 

employment related dispute, those procedures must be exhausted with 

the timelines provided for in the CBA. Plaintiff has failed to plead 

exhaustion of the grievance procedures proscribed by the CBA.” As we 

now explain, we conclude the trial court erred as there is an exception 

to the general rule that an employee use the grievance procedure in the 

CBA where the employer prevents an employee from exhausting the 

grievance procedure in a CBA. 

Section 301 was enacted to ensure that “collective bargaining 

agreements would be uniformly interpreted across the nation in 
13

accordance with substantive federal labor law.” (Friday v. Hughes 

Aircraft Co. (1986) 188 Cal.App.3d 117, 121, citing Teamsters Local v. 

Lucas Flour Co. (1962) 369 U.S. 95, 103-104.) Federal and state courts 

have concurrent jurisdiction over lawsuits seeking relief for violations 

of CBAs, but regardless of where the lawsuit is filed, it is governed 

exclusively by federal law. (Abreu v. Swenhard’s Swedish Bakery

(1989) 208 Cal.App.3d 1446, 1452.)

Here, the trial court properly found the causes of action for 

breach of contract and wrongful termination were governed by federal 

labor law as the claims set forth in the SAC are clearly directed at 

WHHS’s purported violation of the MOU.10 And, as Mendones 

admitted in her trial court opposition to the demurrer, her claim for 

salary while on indefinite paid suspension is not based on an “oral

[and] implied contract,” but rather on WHH’s purported violation of the 

specific term in Memo #2-95E, which allowed but did not require a 

supervisor to place a nurse on indefinite suspension without pay.11

10 We see no merit to Mendones’ contention that federal labor law 

should not apply in this case because she is asserting claims that do not 

require an interpretation of the CBA. While it is certainly true that “a 

plaintiff covered by a collective-bargaining agreement is permitted to 

assert legal rights independent of that agreement” (Caterpillar, Inc. v. 

Williams (1987) 482 U.S. 386, 396, italics in original), so that there is 

no need to interpret the terms of the CBA, that is not the situation 

here. 

11 In the trial court Mendones also asserted her claim for salary 

while on indefinite paid suspension did not require an interpretation of 

the CBA based on a theory of promissory estoppel as alleged in the 

SAC, but she does not renew that argument on appeal. Accordingly, we 

deem the issue waived or abandoned. (Pfeifer v. Countrywide Home 

Loans, Inc. (2012) 211 Cal.App.4th 1250, 128.) 
14

The trial court also properly noted the “general rule” that “federal 

labor policy requires that individual employees wishing to assert 

contract grievances must attempt use of the contract grievance 

procedure agreed upon by employer and union as the mode of redress.” 

(Republic Steel Corp. v. Maddox (1965) 379 U.S. 650, 652.) However,

the trial court did not take note of the exception to the general rule. As 

the high court informs, an employee is not limited to the exclusive 

remedial procedure established by the CBA “when the conduct of the 

employer amounts to a repudiation of those contractual procedures.” 

(Vaca v. Sipes (1967) 386 U.S. 171, 185.) “In such a situation . . ., the 

employer is estopped by his own conduct to rely on the unexhausted 

grievance and arbitration procedures as a defense to the employee’s 

cause of action.” (Ibid.) 12

On appeal Mendones also contends her claim for salary while on 

indefinite paid suspension did not require an interpretation of the CBA 

as the claim is for “promised paid suspension” which is “non-negotiable” 

under state law. However, she cites no state law that prohibits the 

hospital from placing a nurse on indefinite suspension without pay as 

allowed under Memo #2-95E. Nor does she cite any case law 

supporting her argument. Accordingly, we treat the contention as 

waived. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 

830 [“[t]he absence of . . . citation to authority allows this court to treat 

the contention as waived”].) 

12 While the parties do not cite to Vaca v. Sipes, supra, 386 U.S. 

171, we find the case accurately expresses the principle of law 

addressing the situation before us. Because this is a demurrer, we do 

not need to separately address the parties’ related arguments directed 

at the trial court’s ruling regarding Mendones’ purported failure to 

exhaust her remedies under the CBA’s grievance procedure.
15

This is precisely the situation alleged by Mendones, that WHHS 

breached the CBA by the failure of its employees to comply with her 

requests to pursue her disputes using the grievance procedure in the 

CBA. As she stated: “WHHS kept on reasoning for no available dates 

despite plaintiff’s union representatives’ diligence of asking, until 

plaintiff gave up on October 2018.” In her trial court opposition to the 

demurrer, Mendones alleged additional details regarding the 

circumstances regarding her attempts to invoke the CBA’s grievance

procedure and WHHS’s allegedly unsatisfactory responses. Whether 

these allegations are true, and whether WHHS is estopped from 

seeking dismissal of the claims based on a defense of failure to exhaust 

the grievance procedure, are questions of fact not appropriately 

determined at the demurrer stage. (See Stroman v. Atchinson T & S.F. 

Ry. Co. (1958) 161 Cal.App.2d 151, 166 [it was for the jury to determine 

whether the employee’s failure to exhaust the collective bargaining 

grievance procedure should be excused based on the employer’s alleged 

misrepresentations regarding the grievance procedure].) 

We therefore conclude the trial court should have sustained the 

demurrer with leave to amend to allow Mendones the opportunity to 

file an amended complaint alleging facts in support of her contention 

that she is entitled to maintain a state court action for breach of 

contract and wrongful termination as her failure to exhaust the

grievance procedure provided in the CBA was due to WHHS’s 

repudiation of the grievance procedure. Whether Mendones will be 

able to plead and ultimately prove that her claims for breach of 

contract and wrongful termination may be adjudicated in this state 
16

court action due to WHHS’s repudiation of the CBA’s grievance 

procedure is not before us on this appeal. 

III. The Demurrer to the Cause of Action for Retaliation 

under FEHA Should Be Overruled 

Mendones seeks to reinstate the cause of action for retaliation 

under FEHA on the basis that the SAC includes sufficient factual 

allegations to state such a cause of action. 

To state a cause of action for retaliation under FEHA, a plaintiff 

must allege (1) engagement in protected activity, (2) resulting in an 

adverse employment action, and (3) a causal connection between the 

protected activity and the adverse employment action. (Akers v. County 

of San Diego (2002) 95 Cal.App.4th 1441, 1443; see Gov. Code, § 12940.) 

In sustaining the demurrer without leave to amend the cause of 

action for retaliation under FEHA, the trial court found the SAC did 

not include allegations identifying a “ ‘protected activity’ ” and did not 

allege any causal relationship between a protected activity and the 

adverse employment action at issue (termination of employment). In 

fact, however, the SAC does state sufficient facts to withstand 

demurrer as it alleges, in pertinent part, that Mendones’ termination 

was retaliation for her protected activity — filing a report with the 

Labor Commissioner regarding her failure to receive salary payments 

while on indefinite paid suspension.

We see no merit to WHHS’s contention that the demurrer was 

properly sustained because Mendones was not terminated based on the

filing of the report with the Labor Commissioner. While WHHS asks 

us to consider its letter to Mendones stating she was terminated for 

violating a provision of the CBA (not for filing a report with the Labor 
17

Commissioner), Mendones does not concede or admit this was a valid 

basis for her termination. A demurrer cannot be converted “into an 

incomplete evidentiary hearing” in which the demurring party can rely 

on documentary evidence and “the opposing party is bound by what 

that evidence appears to show.” (Fremont Indemnity Co. v. Fremont 

General Corp. (2007) 148 Cal.App.4th 97, 115.) 

Accordingly, we conclude the demurrer to the cause of action for 

retaliation under FEHA should have been overruled as the SAC 

contains sufficient allegations to support such a claim – that 

termination was based on the protected activity of filing a report with 

the Labor Commissioner.13

IV. The Demurrer to the Cause of Action for Discrimination 

Under FEHA Should Be Sustained with Leave to Amend 

Mendones also seeks to reinstate the cause of action for 

discrimination under FEHA to amend the pleading to include the 

requisite jurisdictional allegations. 

As a jurisdictional prerequisite to the filing of a discrimination 

action under FEHA, a plaintiff has the burden to plead (and ultimately 

prove) timely exhaustion of administrative remedies, such as the filing 

of a complaint with the DFEH and obtaining a right to sue letter from 

the DFEH. (See Kim v. Konad USA Distribution, Inc. (2014) 226 

Cal.App.4th 1336, 1345-1346; see Gov. Code, §§ 12935, 12960.) Here, 

the trial court properly sustained the demurrer to the cause of action 

13 We need not, and do not, address whether the SAC’s allegations are 

also sufficient to state a cause of action for retaliation based on claim 

that the termination was due to the protected activity of a “ ‘pending 

court case.’ ” 
18

for discrimination under FEHA as the SAC did not include necessary 

jurisdictional allegations, including that Mendones had received a right 

to sue letter from the DFEH before filing her original complaint. 

However, the record shows that Mendones, in opposing the 

demurrer to the SAC, explicitly asserted she had received a DFEH 

right to sue letter before filing her original complaint. And, in her 

motion for reconsideration, she attached both a DFEH complaint and a 

DFEH right to sue letter. Accordingly, while the demurrer was 

properly sustained, the trial court abused its discretion in failing to 

grant Mendones leave to amend to include the necessary jurisdictional

allegations regarding her exhaustion of administrative remedies by the 

filing of a DFEH complaint and the receipt of a right to sue letter from 

the DFEH.

In addition, we see no merit to WHHS’s argument that we should 

affirm dismissal of the cause of action for discrimination under FEHA

because the SAC does not otherwise contain sufficient substantive 

factual allegations to support a claim for discrimination under the 

disparate treatment theory. 

To state a cause of action for discrimination under the disparate 

treatment theory, a plaintiff must set forth facts showing “ ‘actions 

taken by the employer from which one can infer, if the actions remain 

unexplained, that it is more likely than not that such actions were

“based on a [prohibited] discriminatory criterion . . . .” ’ ” (Ibarbia v. 

Regents of University of California (1987) 191 Cal.App.3d 1318, 1327.) 

The elements of the cause of action include allegations that the plaintiff 

was (1) “a member of a protected class,” (2) “performing competently in 

the position . . . held;” (3) who “suffered an adverse employment action, 
19

such as termination . . . . ;” and (4) “some other circumstance 

suggest[ing] discriminatory motive.” (Guz v. Bechtel National, Inc. 

(2000) 24 Cal.4th 317, 355.) 

In support of its argument for affirmance, WHHS contends the 

SAC does not include allegations that Mendones was a member of a 

protected class and that she was performing competently in the 

position she held in the hospital. We disagree. The SAC includes 

allegations that Mendones was a member of a FEHA protected class in 

terms of age, gender, race and nationality – over 40 years of age, 

female, and of Filipino ancestry; and that she had been hired at WHHS 

as a “staff nurse II per diem,” and her “job performance evaluation was 

outstanding and in fact, she had a recommendation letter made by her 

nurse manager, . . . dated September 26, 2017.”

Additionally, the SAC includes allegations that Mendones had 

suffered adverse employment decisions (indefinite suspension and then 

termination); and circumstances suggesting a discriminatory motive for 

the adverse employment decisions based on allegations that WHHS

had purportedly investigated only the administration of medications by 

Mendones, excluding all other staff nurses – some of whom were in the 

same protected class – who had also administered medications during 

the shifts in which medications had been lost. Also, in her motion for 

reconsideration Mendones submitted a text message of her nurse 

manager’s affirmative response to her allegation that she had been the 

subject of a discriminatory investigation resulting in her indefinite 

suspension and termination.

Whether Mendones will ultimately be able to prove that WHHS 

conducted a discriminatory investigation of her administration of 
20

medication is not before us. We hold only that she has alleged 

sufficient substantive facts to withstand demurrer.

14

V. Conclusion

In sum, the order and judgment of dismissal should be reversed 

as Mendones has alleged a cause of action for retaliation under FEHA 

and may be able to allege causes of actions for breach of contract, 

wrongful termination, and discrimination under FEHA. On remand, 

the trial court will be directed to amend its October 21, 2020 demurrer 

order, by (a) vacating those portions as sustained the demurrer without 

leave to amend causes of action for breach of contract, wrongful 

termination, retaliation and discrimination, and (b) substituting 

provisions overruling the demurrer to the cause of action for retaliation

under FEHA and sustaining the demurrer with leave to amend causes 

of action for breach of contract, wrongful termination, and 

discrimination under FEHA.

Because Mendones will be filing a third amended complaint and

leave to amend may be granted at any time “in furtherance of justice,” 

and on any terms as may be proper (Code Civ. Proc., §473), we deem it 

appropriate to direct the trial court to allow the new pleading to include 

causes of action for professional negligence and defamation, as 

permitted by the October 21, 2020 demurrer order.

15

14 We need not, and do not, address whether the SAC’s allegations 

are also sufficient to state a cause of action for discrimination under a 

disparate impact theory.

15 In light of our determination, we need not and do not address 

Mendones’ additional arguments.
21

DISPOSITION

The separate appeals from the October 21, 2020 and June 10, 

2021 orders are dismissed.

The March 14, 2022 order and judgment of dismissal is reversed

and the matter is remanded for further proceedings. On remand, the 

trial court is directed to vacate so much of its October 21, 2020 order as 

sustained the demurrer to the second amended complaint without leave 

to amend causes of action for breach of contract, wrongful termination, 

retaliation, and discrimination. The trial court shall enter a new order 

(1) overruling the demurrer to the cause of action for retaliation under 

the Fair Employment and Housing Act (Gov. Code, § 12940); and (2) 

sustaining the demurrer to the second amended complaint with leave to 

amend causes of action for discrimination under the Fair Employment 

and Housing Act (Gov. Code, §§ 12935, 12960), and causes of action for

breach of contract and wrongful termination. The trial court is also 

directed to include in its new order a provision that any amended third 

complaint may include causes of action for professional negligence and 

defamation as permitted by the October 21, 2020 order. 

The parties shall bear their own costs. (Cal. Rules of Court, 

rule 8.278(a)(3), (5).)
22

_________________________

Petrou, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Fujisaki, J.

A165164/Mendones v. Washington Hospital Healthcare System