Filed 5/17/23 Herron v. Feast and Fareway CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DENISE M. HERRON,

Plaintiff and Appellant,

v.

FEAST AND FAREWAY, LLC,

Defendant and Respondent.

 D079915

 (Super. Ct. No. 37-2020-

 00036537-CU-OR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Carolyn M. Caietti, Judge. Affirmed.

Stephen M. Hogan for Plaintiff and Appellant.

Delmore Greene and Elizabeth A. Donavan for Defendant and 

Respondent.

Denise Herron was ejected from a restaurant located at the Coronado 

Municipal Golf Course. In response, she brought this action seeking a 

declaration that the concession contract between the City of Coronado (City) 

and the restaurant owner, Feast and Fareway, Inc. (Feast), is illegal and void 

under the public trust doctrine, as codified in Public Resources Code section 

6009.1. As amended, Herron’s operative complaint also asserts that Feast 
2

violated the anti-retaliation provision of the Fair Employment and Housing 

Act (FEHA) (Gov. Code, § 12940, subd. (h)) by ejecting her from the 

restaurant in retaliation for reporting that she witnessed one Feast employee 

inappropriately touching another. She appeals from the trial court’s 

dismissal of these two claims against Feast after an order sustaining its 

demurrer. 

On de novo review, we conclude that Herron’s declaratory relief claim

fails to state facts sufficient to allege a breach of the public trust doctrine. As 

to the FEHA retaliation claim, we conclude that even though the statute 

covers retaliation against a non-employee, the trial court correctly ruled that 

Herron failed to allege she had suffered an adverse employment action, as 

required under Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1049–

1055 (Yanowitz). Accordingly, we affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

Feast has a contract with the City to serve as a concessionaire 

providing food and beverage services at the Coronado Municipal Golf Course. 

Feast operates a restaurant in the golf course building, where it also hosts 

private events and banquets. 

Feast’s concession contract with the City states in relevant part: “The 

City operates and maintains a public golf course open and available for use 

by the general public . . . . Essential to the operations of the Golf Course, the 

City has required and continues to require the services of a concessionaire to 

operate the food and beverage amenities and concession serving the public at 

the Golf Course. . . . The food and beverage services contemplated by this 

Agreement are essential and complimentary to the operations of a public 

municipal golf course and consistent with existing use of the Golf Course.” 
3

Herron is a resident of Coronado, California. On January 8, 2020, 

Feast barred her from the premises of the restaurant, including outdoor patio 

areas not subject to its control. 

In response, Herron filed a complaint and then a first amended 

complaint against Feast and the City. She alleged claims for (1) declaratory 

relief; (2) breach of the concession contract between the City and Feast; and 

(3) violation of the Unruh Act (Civ. Code, § 51). 

The declaratory relief claim set forth the history of the golf course and 

alleged that the property was subject to the “Public Trust Doctrine” codified 

in section 6009.1 of the Public Resources Code. Specifically, in 1923, the 

State Lands Commission conveyed what was then submerged property under 

Glorietta Bay to the City to be held and used in trust. After dredging the 

bay, the City filled in the tidelands and constructed the golf course, which 

opened in 1957. In 1962, the Legislature passed the San Diego Unified Port 

District Act, which resulted in a conveyance of the property to the San Diego 

Unified Port District (Port District). The Port District then leased the 

property back to the City to be operated in trust for the benefit of the public.

The lease allows the property to be used as “a public golf course open and 

available for use by the general public including driving range, pro shop, golf 

cart rental, and snack bar including the sale of alcoholic beverages and for no 

other purposes whatsoever.” The lease also states: “This restriction on use of 

the leased premises absolutely prohibits a change in use. Lessee [the City] 

further agrees not to construct or operate any hotel, motel, restaurant, or 

cocktail lounge on the premises or in conjunction with said golf course.” 

Herron’s declaratory relief claim alleged that the concession agreement 

between Feast and the City was void and illegal because it violated the City’s 

lease with the Port District and the public trust doctrine by allowing Feast to 
4

operate a restaurant as well as private events and banquets. Accordingly, 

Herron requested a declaration that the concession agreement was void. 

Feast filed a demurrer to the first amended complaint. Feast asserted 

that the first cause of action for declaratory relief failed to state a claim 

because Herron lacked standing; the second cause of action for breach of 

contract failed to state a claim because Herron lacked standing to assert a 

breach of the concession agreement between the City and Feast and failed to 

allege any breach; and the third cause of action for violation of the Unruh Act 

failed to state a claim because Herron did not allege discrimination or 

discriminatory intent. In its papers, Feast did not address Herron’s

allegations regarding the public trust doctrine. 

The trial court overruled Feast’s demurrer to the first cause of action 

for declaratory relief, and sustained it without leave to amend the second 

cause of action, but with leave to amend the third cause of action. The court 

also granted Herron leave to amend to allege a fourth cause of action for sex 

discrimination and retaliation for reporting sexual harassment. 

With regard to the declaratory relief claim, the court ruled: “A 

demurrer must dispose of an entire cause of action to be sustained. . . . Here, 

defendants did not address the allegations in the first cause of action 

regarding the Public Trust Doctrine, nor provide[] any legal authority 

concerning the Public Trust Doctrine. . . . Thus, the entire cause of action 

cannot be disposed of at this time.” 

Herron then filed the second amended complaint at issue in this 

appeal. She alleged the same declaratory relief claim without amendment; 

she did not re-allege the breach of contract claim; she amended the Unruh 

Act claim; and she alleged a new fourth claim for retaliation under the Fair 

Employment and Housing Act (FEHA) (Gov. Code, § 12940, subd. (j).) The 
5

new FEHA claim alleged that Herron was ejected from Feast’s premises in 

retaliation for reporting sexual harassment. Specifically, Herron alleged that 

she observed a male Feast employee sexually harassing a female employee by 

inappropriately touching her; she reported the sexual harassment to Feast’s 

manager; and Feast permanently ejected her from the premises in retaliation 

for this report. 

Feast filed another demurrer to the second amended complaint on the 

following grounds: (1) the first cause of action failed to state a claim for 

declaratory relief because Herron lacked standing and there had been no 

violation of the public trust doctrine; (2) the third cause of action failed to 

state an Unruh Act claim because Herron failed to allege specific facts 

supporting her claim of gender discrimination; and (3) the fourth cause of 

action failed to state a FEHA retaliation claim because no employment 

relationship or equivalent existed between her and Feast. 

The court sustained the demurrer without leave to amend the first and 

fourth causes of action, but with leave to amend the third cause of action for 

violation of the Unruh Act. As to the first cause of action for declaratory 

relief, the court ruled: (1) to the extent Herron was seeking a declaration of 

rights under the concession agreement, she lacked standing because she was 

not a party or intended third-party beneficiary of the concession agreement; 

(2) to the extent Herron was seeking a declaration of rights under the public 

trust doctrine, the only proper defendants were the governmental entities 

alleged to have violated the public trust, not Feast as a private party; and 

(3) the second amended complaint did not state sufficient facts to allege an 

actual controversy or how Feast violated or breached the public trust 

doctrine, and plaintiff’s opposition did not provide any legal authority 

supporting how Feast’s conduct violated the public trust doctrine. 
6

As to the fourth cause of action for FEHA retaliation, the court ruled 

that plaintiff had “not identified facts showing she had any employment 

relationship with [Feast] or suffered any adverse employment action.” 

Herron elected not to amend her third cause of action for violation of 

the Unruh Act. Accordingly, the court entered judgment in Feast’s favor. 

DISCUSSION

On appeal, Herron pursues only two of the theories of liability asserted 

below: (1) declaratory relief for the alleged violation of the public trust 

doctrine; and (2) FEHA retaliation. We begin with a procedural issue raised 

by Herron, then address each of these substantive claims applying a de novo 

standard of review. (Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 

1545, 1552 [de novo standard of review for demurrer rulings].)

A. Successive Demurrers 

As she did below, Herron argues that the trial court lacked jurisdiction 

to decide Feast’s second demurrer to the declaratory relief claim under Code 

of Civil Procedure section 430.41, subdivision (b), which states: “A party 

demurring to a pleading that has been amended after a demurrer to an 

earlier version of the pleading was sustained shall not demur to any portion 

of the amended complaint, cross-complaint, or answer on grounds that could 

have been raised by demurrer to the earlier version of the complaint, crosscomplaint, or answer.”

We agree with Herron that Feast asserted a new ground for the 

demurrer to the second amended complaint that could have been raised in its 

earlier demurrer to the first amended complaint. Specifically, Feast asserted 

that the first cause of action for declaratory relief failed to state a claim 

because “there has been no violation of the Public Trust Doctrine.” Feast 

could have asserted this ground in its earlier demurrer to the first amended 
7

complaint, because the allegations of this cause of action were identical in 

both versions of the complaint. Because Feast did not assert this ground in 

its demurrer to the first amended complaint, the trial court should not have 

sustained the demurrer to the second amended complaint on this ground. 

(Code Civ. Proc., § 430.41, subd. (b).)

However, we do not agree with Herron that this procedural error 

mandates reversal per se. The trial court did not lack jurisdiction in the 

fundamental sense because it had jurisdiction over the subject matter and 

the parties. At most, the court acted in excess of jurisdiction by sustaining 

the demurrer on this ground in violation of a procedural rule. (See People v. 

American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 661 [“ ‘[W]hen a 

statute authorizes [a] prescribed procedure, and the court acts contrary to the 

authority thus conferred, it has exceeded its jurisdiction.’ ”].) “Ordinarily,

acts in excess of jurisdiction are subject to harmless error analysis, that is, 

they support a reversal of the judgment only upon a showing of prejudice.” 

(LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 871.)

The error here is not prejudicial because the trial court could have 

elected to treat this portion of Feast’s demurrer as a motion for judgment on 

the pleadings, or Feast could have filed a separate motion for judgment on 

the pleadings, either of which would have resulted in the same outcome as 

the demurrer. (Code Civ. Proc., § 438.) A motion for judgment on the 

pleadings may be made on a ground not raised in an earlier demurrer. 

(Id., subd. (g)(2).) “Like a demurrer, a motion for judgment on the pleadings 

attacks defects disclosed on the face of the pleadings or by matters that may 

be judicially noticed.” (Alameda County Waste Management Authority v. 

Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1174.) “ ‘A motion 

for judgment on the pleadings is equivalent to a demurrer and is governed by 
8

the same de novo standard of review.’ ” (People ex rel. Harris v. Pac Anchor 

Transportation, Inc. (2014) 59 Cal.4th 772, 777.) Accordingly, we conclude 

that this procedural error was not prejudicial.

B. Public Trust Doctrine

Herron asserts that her first action for declaratory relief states a valid 

claim based on the public trust doctrine. As noted, the trial court sustained 

Feast’s demurrer to this claim for several reasons, including that the second 

amended complaint “does not state sufficient facts of an actual controversy or

how [Feast] violated or breached the public trust doctrine and [Herron]’s 

opposition does not provide any legal authority supporting how, under these 

facts, operation of [Feast]’s facility violates the public trust doctrine.” We 

agree that Herron failed to allege facts sufficient to constitute a breach of the 

public trust. Accordingly, it is unnecessary for us to address the other 

grounds for the trial court’s ruling on this claim. 

The State of California holds title to the navigable waterways and the 

land beneath them within its borders as a trustee for the public. (Colberg, 

Inc. v. State of California ex rel. Dept. Pub. Wks. (1967) 67 Cal.2d 408, 416.) 

Tidelands are included in the public trust. (Graf v. San Diego Unified Port 

Dist. (1992) 7 Cal.App.4th 1224, 1228 (Graf).) The public trust doctrine 

continues to apply to tidelands even if they are no longer submerged due to 

the placement of fill. (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 

479.)

“Granted public trust lands remain subject to the supervision of the 

state and the state retains its duty to protect the public interest in granted 

public trust lands.” (Pub. Resources Code, § 6009.1, subd. (a).) “The state 

acts both as the trustor and the representative of the beneficiaries, who are 

all of the people of this state, with regard to public trust lands, and a grantee 
9

of public trust lands, including tidelands and submerged lands, acts as a 

trustee, with the granted tidelands and submerged lands as the corpus of the 

trust.” (Id., subd. (b).) 

The state may delegate its authority to manage and control public use 

of tidelands to a local agency. (Graf, supra, 7 Cal.App.4th at p. 1229.) Under 

the San Diego Unified Port District Act of 1962 (Harb. & Nav. Code, Appx. I), 

the State of California has delegated its authority to manage and control San 

Diego Bay to the Port District. The statutory scheme declares it to be the 

policy of the State to develop its harbors and ports “for multiple purpose use 

for the benefit of the people.” (Id., § 2.) It gives the Port District the 

authority to lease any property within its jurisdiction (id., § 25) and to 

maintain or operate “facilities which are necessary or convenient for the 

promotion and accommodation of commerce, navigation, fisheries, and 

recreation, or their use in connection therewith . . . .” (id., § 57). It further 

states that the tidelands conveyed to the Port District “may be used for 

purposes in which there is a general statewide purpose” (id., § 87, subd. (a)), 

including “small boat harbors, marinas, aquatic playgrounds, and similar 

recreational facilities” and any facilities “necessary, or convenient for the 

promotion and accommodation of any of those uses, including, but not limited 

to, snack bars, cafes, restaurants, motels,” etc. (id., § 87, subd. (a)(6)).

Herron does not contend that the use of the tidelands as a public golf 

course violates the public trust doctrine. Rather, her claim is that it violates 

the public trust doctrine to allow a private restaurant to operate on the golf 

course and hold private events there. As noted, however, the Legislature has 

specifically authorized facilities such as “snack bars, cafes, [and] restaurants” 

as necessary or convenient for the promotion and accommodation of 

recreational uses on tidelands within the Port District’s jurisdiction. 
10

(Harb. & Nav. Code, Appx. I, § 87, subd. (a)(6).) The public trust doctrine 

does not prohibit the leasing of tidelands property to a private party to 

operate a restaurant incidental to a public recreational use. (Martin v. Smith

(1960) 184 Cal.App.2d 571, 573–574, 578 [lease of tidelands to private party 

to construct yacht harbor with restaurants and cocktail lounges was 

“consistent with the trust upon which said lands were conveyed to the city, 

and with the requirements of commerce and navigation of said harbor”].) 

Nor does the doctrine prohibit such a restaurant from holding private 

events, so long as they do not interfere with the public trust uses. A public 

agency “may authorize private uses of trust property that do not impair the 

trust.” (San Francisco Baykeeper v. State Lands Com. (2018) 29 Cal.App.5th 

562, 580 (San Francisco Baykeeper) [allowing commercial sand mining on 

public trust lands—even though it was not a public trust use—because it

would not impair the trust]; see also Zack’s, Inc. v. City of Sausalito (2008) 

165 Cal.App.4th 1163, 1176 [“Trust lands may be devoted to purposes 

unrelated to the trust if such purposes are incidental to and accommodate 

trust uses . . . .”].) Herron’s complaint fails to allege how the operation of the 

restaurant or its private events interfere in any way with public trust uses.

Herron’s sole argument on this point is that the operation of a 

restaurant on the golf course violates the public trust doctrine because the 

City’s lease with the Port District states that the City may not “construct or 

operate any hotel, motel, restaurant, or cocktail lounge on the premises or in 

conjunction with said golf course.” But Herron cites no authority holding 

that a violation of such a lease provision is ipso facto a breach of the public 

trust. As noted by Feast, a New York trial court rejected a similar claim in

Saska v. Metropolitan Museum of Art (N.Y. Sup. Ct. 2016) 2016 WL 6682271 

[unreported disposition]. There, the plaintiffs argued that a public museum’s 
11

admission fee violated the public trust doctrine because it was prohibited by 

the museum’s lease with the City of New York. The court concluded that this 

argument was “an attempted end run” around the plaintiffs’ lack of standing 

to assert a violation of the lease itself “by shoehorning those claims within 

the rubric of the public trust doctrine.” (Id. at *8.)

Though not binding, we find this reasoning to be persuasive. Herron 

does not dispute that that she lacks standing to assert a violation of the lease 

between the Port District and the City because she is neither a party to the 

lease nor an intended third-party beneficiary. Without any supporting 

authority, she is attempting to recast this same claim as a breach of the 

public trust. But the duties imposed on the State and its grantees by the 

public trust doctrine are not defined by the lease agreement between the Port 

District and the City. Herron cannot circumvent her lack of standing to 

assert a violation of this lease agreement by dressing it up as a breach of the 

public trust. Accordingly, we agree with the trial court that Herron failed to 

allege a breach of the public trust.

Herron asserts that it is a factual question whether the defendants’ 

conduct violates the public trust. We disagree. (San Francisco Baykeeper, 

supra, 29 Cal.App.5th at p. 577 [rejecting argument that “the question 

whether an activity constitutes a public trust use is factual rather than 

legal”].) Even if Herron were correct, however, that would not relieve her of 

the burden of stating sufficient facts to allege a breach of the public trust. 

She has failed to do so. 

Herron also suggests that a demurrer cannot be used to adjudicate the 

merits of her declaratory relief claim because the existence of a justiciable 

dispute is all that is required to state such a claim. But “ ‘where the issue is 

purely one of law, if the reviewing court agree[s] with the trial court’s 
12

resolution of the issue it would be an idle act to reverse the judgment of 

dismissal for a trial on the merits.’ ” (Hertzberg v. County of Plumas (2005) 

133 Cal.App.4th 1, 24.) “ ‘In such cases the merits of the legal controversy 

may be considered on an appeal from a judgment of dismissal following an 

order sustaining a demurrer without leave to amend and the opinion of the 

reviewing court will constitute a declaration of the legal rights and duties of 

the parties concerning the matter in controversy.’ ” (Ibid.) To avoid a 

pointless remand, we conclude as a matter of law that the facts Herron has 

alleged do not amount to a breach of the public trust.1 This opinion therefore 

serves as the declaration of rights Herron sought in her declaratory relief 

claim.

C. FEHA Retaliation

The trial court sustained Feast’s demurrer to the FEHA retaliation 

claim solely because Herron had not alleged that (1) she had any employment 

relationship with Feast or (2) she had suffered any adverse employment 

action. We agree as to the second point, but not the first.

Government Code section 12940, subdivision (h) makes it unlawful 

“[f]or any employer, labor organization, employment agency, or person to 

discharge, expel, or otherwise discriminate against any person because the 

person has opposed any practices forbidden under this part or because the 

person has filed a complaint, testified, or assisted in any proceeding under 

this part.” (Italics added.)

1 Herron has also failed to explain what additional facts she could allege 

to state a claim for breach of the public trust. (See Jocer Enterprises, Inc. v. 

Price (2010) 183 Cal.App.4th 559, 572 [plaintiff on appeal bears burden to 

show in what manner she can amend complaint and how it will change legal 

effect of pleading].)
13

By its terms, this statute prohibits the specified forms of retaliation or 

discrimination against “any person.” The ordinary meaning of the word “any” 

is “without limit and no matter what kind.” (Delaney v. Superior

Court (1990) 50 Cal.3d 785, 798.) “From the earliest days of statehood,” the 

Supreme Court has “interpreted ‘any’ to be broad, general, and all 

embracing.” (California State Auto. Asso. Inter-Insurance Bureau v.

Warwick (1976) 17 Cal.3d 190, 195, citing Davidson v. Dallas (1857) 8 Cal. 

227, 239 [construing “any” to mean “every”].) Moreover, Government Code 

section 12925, subdivision (d) broadly defines a “person” as follows: “ ‘Person’ 

includes one or more individuals, partnerships, associations, corporations, 

limited liability companies, legal representatives, trustees, trustees in 

bankruptcy, and receivers or other fiduciaries.” Thus, the plain language of 

the statute is not limited to retaliation against employees. Rather, it more 

broadly prohibits retaliation against any individual (or the specified nonemployee entities) for opposing a FEHA violation, filing a FEHA complaint, 

or testifying or assisting in any FEHA proceeding.

We are bound by the plain language and definitions used by the 

Legislature when it enacted the FEHA. (See MacIsaac v. Waste Management 

Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1087.) By 

forbidding retaliation against “any person” (Gov. Code, § 12940, subd. (h)), 

and defining “person” to include “individuals” and non-employee entities

(Gov. Code, § 12925, subd. (d)), the Legislature made clear that the FEHA 

anti-retaliation provision is not limited to retaliation against employees. The 

Legislature certainly knew how to limit FEHA’s protections to employees or 

applicants, as it did explicitly in other subdivisions of the same section. (See, 

e.g., Gov. Code, § 12940, subds. (d), (f)(1), (m)(1), (p).) But it used the broader 

“any person” language in the anti-retaliation provision. (Id., subd. (h).) 
14

“When the Legislature uses materially different language in statutory 

provisions addressing the same subject or related subjects, the normal 

inference is that the Legislature intended a different meaning.” (People v. 

Trevino (2001) 26 Cal.4th 237, 242.) 

This result is further supported by Fitzsimons v. California Emergency 

Physicians Medical Group (2012) 205 Cal.App.4th 1423 (Fitzsimons). The 

plaintiff there was a partner in a medical partnership (CEP). She sued CEP

alleging that it retaliated against her for reports she made to her supervisors 

about sexual harassment of female employees. At trial, a jury found that the 

plaintiff was a partner of CEP, but not an employee. Based on this finding, 

the trial court concluded that she lacked standing to assert a FEHA 

retaliation claim. (Id. at pp. 1425–1426.)

The Court of Appeal reversed and concluded that “the FEHA does 

support a claim for retaliation by a partner against her partnership for 

opposing sexual harassment of an employee.” (Fitzsimons, supra, 205 

Cal.App.4th at p. 1425.) The court reasoned: “While CEP is not in an 

employment relationship with plaintiff, CEP is the employer of those persons 

who are the victims of the alleged harassment that plaintiff reported, for 

which she allegedly became the subject of CEP’s retaliation. The harassment 

of CEP employees, if proven, is an unlawful practice for which CEP is liable 

under [Government Code] section 12940, subdivision (j). And subdivision (h) 

makes it an unlawful practice for CEP to retaliate against ‘any person’ for 

opposing that harassment. Interpreting ‘person’ in the context of those 

against whom the employer may not retaliate to include a partner gives the 

word its normal meaning and is consistent with the definition in section 

12925, subdivision (d).” (Fitzsimons, at p. 1429.)
15

The same reasoning applies here. Interpreting the word “person” to 

include a customer or patron gives the word its normal meaning and is 

consistent with the definition in Government Code section 12925, subdivision 

(d). Although Herron herself was not an employee of Feast, Feast employed 

the person who was the alleged victim of the sexual harassment reported by 

Herron. To encourage compliance with FEHA, the Legislature evidently 

decided to prohibit an employer from retaliating against any individual for 

opposing a FEHA violation, including customers, patrons, vendors, 

independent contractors, or others. This promotes the purpose of the statute 

by encouraging anyone with knowledge of a FEHA violation to oppose it with

the protection of a legal prohibition against retaliation. We must apply the 

statute as written to carry out the Legislature’s intent as expressed in its 

plain language.

We nevertheless conclude that Herron’s complaint fails to state a 

FEHA retaliation claim because she has not alleged that she suffered an 

adverse employment action. (Yanowitz, supra, 36 Cal.4th at pp. 1049–1055.) 

The statute makes it unlawful to “discharge, expel, or otherwise discriminate

against” the person opposing the FEHA violation. (Gov. Code, § 12940, subd. 

(h).) In Yanowitz, the Supreme Court ruled that “the term ‘otherwise 

discriminate’ in [Government Code] section 12940(h) should be interpreted to 

refer to and encompass the same forms of adverse employment activity that 

is actionable under section 12940(a) [the substantive anti-discrimination 

provision].” (Yanowitz, at pp. 1050–1051.) Accordingly, the anti-retaliation 

provision requires “an adverse employment action” that “must materially 
16

affect the terms, conditions, or privileges of employment to be 

actionable . . . .” (Id. at p. 1137.)2

Although Yanowitz involved alleged retaliation against an employee, 

we see no basis to conclude that the statute offers broader protection to nonemployees. The operative language of the statute is the same for employees 

and non-employees alike. Under Yanowitz, employees cannot sue for 

retaliatory acts that do not affect the terms, conditions, or privileges of their 

employment. The identical statutory language logically requires the same 

result for non-employees. Moreover, it is possible for an employer to retaliate 

against a non-employee in a manner resulting in an adverse employment 

action. For example, an employer could cause a non-employee to be fired 

from a job with another employer, which would constitute an adverse 

employment action within the meaning of Yanowitz. (See Yanowitz, supra, 

36 Cal.4th at p. 1054 [defining adverse employment action to include “the 

entire spectrum of employment actions that are reasonably likely to 

adversely and materially affect an employee’s job performance or opportunity 

for advancement in his or her career”]; see also Robinson v. Shell Oil Co. 

(1997) 519 U.S. 337 [holding that employer’s postemployment retaliation 

against former employee by giving a negative job reference to another 

2 Under federal law, by contrast, Title VII’s anti-retaliation provision 

“does not confine the actions and harms it forbids to those that are related to 

employment or occur at the workplace.” (Burlington Northern & Santa Fe 

Ry. Co. v. White (2006) 548 U.S. 53, 57.) The United States Supreme Court 

has construed Title VII more broadly to forbid any retaliatory action that 

would dissuade a reasonable person from making or supporting a charge of 

discrimination. (Ibid.) But in Yanowitz (decided ten months before 

Burlington Northern), our Supreme Court specifically rejected this deterrence 

standard in construing the FEHA anti-retaliation provision. (Yanowitz, 

supra, 36 Cal.4th at pp. 1050–1051.) We are bound by Yanowitz. (Auto 

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
17

prospective employer was actionable under Title VII].) We therefore conclude 

that an adverse employment action is required, rather than some other form 

of retaliation not affecting the terms, conditions, or privileges of employment. 

(See also Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 885 [citing 

Yanowitz for the proposition that “[t]o prove unlawful retaliation, [plaintiff] 

must . . . show [defendant] subjected him to adverse employment actions for 

impermissible reasons . . . .”].)

Herron argues that her mere expulsion from the restaurant was 

sufficient because the statute says that an employer may not “discharge, 

expel, or otherwise discriminate against” anyone for opposing a FEHA 

violation. (Gov. Code, § 12940, subd. (h), italics added.) But the word “expel” 

cannot be read in isolation; we must construe the words of the statute in 

context and harmonize related provisions to the extent possible. (Lungren v. 

Deukmejian (1988) 45 Cal.3d 727, 735.) It would make little sense for the 

catch-all phrase “or otherwise discriminate against” to require an adverse 

employment action under Yanowitz, supra, 36 Cal.4th at pages 1049–1055, 

but not the other more specific forms of discrimination or retaliation listed 

immediately preceding that phrase. We must construe the statute to avoid 

such an incongruity and reconcile its related provisions. We therefore 

conclude that the trial court properly sustained the demurrer to Herron’s

FEHA claim because she has not alleged an adverse employment action.3

3 We can imagine a scenario in which Feast’s expulsion of a nonemployee from the restaurant could result in an adverse employment action. 

For example, if Feast permanently expelled someone who was regularly 

employed by a caterer for events at that location, and the expulsion caused 

her to lose her job with the catering company, it could constitute an adverse 

employment action.
18

DISPOSITION

The judgment of dismissal is affirmed. Respondent shall recover its 

costs on appeal.

BUCHANAN, J.

WE CONCUR:

DATO, Acting P. J.

KELETY, J.