Filed 9/2/20 Behazin v. Dignity Health CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Ramona G. See, Judge. Affirmed.

Bohm Law Group and Lawrence A. Bohm, Bradley J. 

Mancuso, and Lindsay L. Bowden; Esner, Chang & Boyer and 

Stuart B. Esner for Plaintiff and Appellant.

Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, 

Eric C. Schwettmann, and John J. Manier for Defendant and 

Respondent.

NEGIN BEHAZIN,

Plaintiff and Appellant,

v.

DIGNITY HEALTH, INC.,

Defendant and Respondent.

 B293805

 (Los Angeles County

 Super. Ct. No. NC060566)
2

Negin Behazin (appellant) appeals from a final judgment 

entered after the trial court granted summary judgment in favor 

of Dignity Health, Inc. (respondent) on appellant’s claims against 

respondent. At issue in appellant’s first amended complaint 

(FAC) against respondent were only two causes of action: (1) 

violation of Labor Code sections 98.6 and 1102.5; and (2) adverse 

action in violation of public policy. The trial court granted 

summary judgment on these two causes of action on the grounds 

that appellant did not engage in any activity protected by Labor 

Code sections 98.6 or 1102.5; and there is no tort cause of action 

for nonrenewal of a fixed term employment contract such as 

appellant’s. We find no error and affirm the judgment.

FACTUAL BACKGROUND1

Appellant’s educational background

Appellant received her medical education at Islamic Azad 

University in Tehran, Iran, and thereafter practiced medicine in 

Iran for five years. In March 2003, she obtained an entry visa 

into the United States and entered a Ph.D. program in 

pharmacology at Northeastern University. She left that program 

after receiving her master’s degree in 2005. She was then 

____________________________________________________________

1 Because this matter comes to us after summary judgment

proceedings, only uncontested facts are relevant. We note that 

the parties disagree as to the interpretation of many of the facts 

concerning appellant’s background. Appellant objects that 

respondent’s characterization of appellant as an individual 

lacking in both medical and social skills is overly one-sided. 

Respondents, on the other hand, argue appellant made untrue 

statements on her application for admission and encountered 

problems with her performance and her interpersonal skills while 

employed with respondent. Due to the conflicting depictions of 

appellant’s character and skills, we limit our explanation of 

appellant’s background.
3

engaged in medical research at two Boston hospitals for four

years.

Appellant entered a preliminary year residency program at 

St. Mary’s Health Center in St. Louis, Missouri (SMHC) for the 

2010-2011 academic year. Appellant received an overall 

satisfactory evaluation for her post-graduate year at SMHC, but 

she received several marginal evaluations for certain rotations.

On July 1, 2011, appellant began an advanced residency in 

anesthesiology at the University of Missouri in Columbia, 

Missouri, where she experienced difficulties, and received 

unsatisfactory ratings for both her first and second six month 

reviews. She received no academic credit for the year due to her 

unsatisfactory rating.

Appellant’s position with respondent’s organization

St. Mary Medical Center in Long Beach, California 

(SMMC), offered appellant a postgraduate year one position in 

internal medicine. Appellant accepted, and signed a resident 

employment agreement that offered a fixed one-year term from 

June 18, 2013 to June 22, 2014, with no guarantee of renewal. 

The contract provided, in part, that it “applies only to the stated 

term hereof and does not imply any guarantee of a training 

position or employment of any kind in subsequent years.” The 

agreement also explained that if the resident’s agreement was 

not going to be renewed, SMMC would “use its best efforts to 

provide Resident with a written notice of intent not to renew no 

later than four (4) months prior to the expiration of this 

Agreement,” but, should the reasons for nonrenewal occur within 

the last four months preceding the contract’s expiration, 

“Hospital shall provide as much advance notice to Resident as is 

reasonable under the circumstances.”
4

Internal medicine residents such as appellant who have 

graduated from an international medical school must obtain a 

California medical license by the end of their third year of 

training, regardless of whether they received academic credit for 

each year. Residents are required to begin the process of 

obtaining a California medical license six months before the 

applicable cut off date, so that any problems can be resolved in a 

timely manner. In a letter dated January 17, 2014, the Medical 

Board of California notified appellant that she needed to submit 

several additional items to support her medical licensure 

application, including a “signed and dated personal explanation” 

of why she did not disclose her SMMC training for 2013-2014 on 

her application summary.

There were various issues with appellant’s performance 

and progress throughout her residency year at SMMC. In 

February 2014, appellant’s faculty advisor, Sarah Strube, D.O., 

provided Dr. Chester Choi, the program director, with a list of 16 

separate problems and ongoing issues she observed with 

appellant’s performance. On March 18, 2014, in a meeting with 

Dr. Strube, appellant faced criticism for her performance on her 

February medical floor rotation. Dr. Strube gave appellant 

marginal evaluations for the month of February. On March 29, 

2014, Bettina Kehrle, M.D., met with appellant to discuss her 

performance. The next day, Dr. Kehrle provided other 

supervising doctors with a list of concerns she had about 

appellant’s performance, as she did not believe appellant was 

meeting the program’s standards as compared to her peers.

March 10, 2014 email

On March 10, 2014, appellant wrote an email to seven 

individuals affiliated with the residency program including 
5

Dr. Strube, five other doctors, and Maureen Lucey, the nursing 

director of the ICU. The email was captioned “Questions on 

transfusion strategies in GI bleed,” and included: “The reason I 

am bringing this case to your attention is that in my opinion it is 

related to patient safety, and I’ve noticed that there is no 

consensus even among the House Staff and the attending 

physicians at St. Mary on the management of GI bleeds.” The 

email was viewed as a complaint about the ICU nurses, one of 

whom pressed the code button out of concern that appellant was 

not giving appropriate orders. Appellant specifically questioned 

the judgment of a third-year resident in the email, which was 

considered inappropriate outside of the peer review process.

The next day, Dr. Bahman Chavoshan, one of the email 

recipients, sent a reply to appellant:

“I read your e-mail with a significant amount of 

concern.

“While we encourage our house staff to be 

involved in quality improvement projects, patient 

safety assurance, there are proper venues for these 

activities. An e-mail to a group of people with 

various levels of responsibility is not one of those 

avenues.

“The issues of physician practices, et cetera, fall 

under various committees, including the medical staff 

association. Openly discussing other physician 

practices by name outside of a peer review process is 

never appropriate.

“I know that Dr. Strube and you are planning 

to meet next week to go over your most recent 

evaluations. Dr. Choi and/or I will meet with you 

afterwards.
6

“Let me also be frankly blunt and clear: the 

issues of performance (including advancement and 

disciplining), leave and other privileged information 

about other house staff members cannot and shall not 

be discussed.”

2

Appellant’s response to Dr. Chavoshan was as follows:

“This is not about questioning another 

physician’s performance. It is about being pressured 

by ICU staff to give certain orders and be discredited, 

if not doing so. I have learned from experience that if 

I refuse to give a certain order, I will be bypassed to 

the next level and the case is presented to the next 

person in a way that the order is obtained. I am not 

questioning [anyone] here. I am questioning the ICU 

staff’s level of comfort with watchful waiting and 

threshold based transfusion in GI bleed and I wanted 

to start the discussion with the intensivists here (I 

wish I could have included all the intensitists [sic] on 

the email) to come up with a [framework] for ICU 

staff for manageme[nt] of GI bleed.

“As for leave of absence, I am totally surprised 

that an intern is on leave of absence fighting for his 

life and is being ignored to this level by the 

department. When I worked at Harvard, it was a 

[routine] practice to let the colleagues know if 

[someone] was on leave for any family emergency. 

____________________________________________________________

2 The reference in Dr. Chavoshan’s e-mail to “leave and other 

privileged information” pertained to appellant’s oral request for 

the home address of an intern who was being treated for a lifethreatening illness, so that appellant and others could send the 

intern a card and flower arrangement.
7

Department would send them flower arrangements 

and an e-mail would inform staff that a card is 

available to write or sign for that person in such and 

such room and on such days, so people would go and 

drop a note of sympathy for their counterpart. The 

card would then go to that person with flowers via 

the department. This is NOT a HIPPA [sic] violation 

or invasion to anybody’s privacy. I think in this 

department we are going way extreme in terms of 

respecting privacy and we’re confusing respecting 

privacy with ignoring. I am very sorry that you have 

such ill impressions of my intentions in [everything] I 

do and say.

“Negin

“LET ME BE BLUNTLY FRANK: WE WANT TO 

SEND FLOWERS AND CARDS TO . . . . . IF THIS 

STUPID DEPARTMENT CAN NOT [sic] ARRANGE 

FOR IT TO HAPPEN, GIVE US HIS HOME 

ADDRESS TO TAKE CARE OF IT BY 

OURSELVES!”

One minute later, appellant sent a second reply to Dr. 

Chavoshan, which stated in full:

“I AM NOT INTERESTED IN MEETING 

WITH U [sic] BY THE WAY. SEND ME YOUR 

ADVICE/QUESTIONS VIA EMAIL. [¶] NEGIN”

Three days after this e-mail exchange, appellant was called 

to a mandatory meeting with SMMC’s chief medical officer, 

Andrew Burg, M.D., and its human resources director, Robert 

Bokern, to discuss appellant’s behavior in sending the emails. At 

this meeting, appellant was informed that SMMC had decided 

not to renew her contract. Dr. Burg also discussed the rules 
8

under HIPAA, and there was a brief discussion of the incident

involving transfusions, which was reviewed with the nursing 

committee. Contrary to appellant’s assertions, the committee 

determined that the nurses had acted properly.

Appellant completes her one-year contract with a 

satisfactory rating

In a March 2014 communication, Kevin Schunke at the 

Medical Board, indicated to Dr. Chavoshan that the SMMC 

program should expect an opening in the residency program in 

July 2014. This exchange led Dr. Chavoshan to believe that 

appellant would not receive her medical license before the start of 

the next academic year.

Appellant was formally notified of SMMC’s decision not to 

renew her employment after completion of her postgraduate year 

one program by letter from Dr. Burg dated April 1, 2014. 

Appellant was permitted however, to finish her year one contract 

term and present a corrective action plan to the committee, to 

potentially enable her to attain a final rating of satisfactory and 

receive academic credit for the year. Appellant and Dr. Strube 

developed a corrective plan for the remainder of appellant’s 

contract term.

Appellant repeatedly asked Dr. Burg and Dr. Choi to 

reconsider the decision not to renew her contract. June 22, 2014,

was appellant’s last day of work at SMMC. One day after her 

residency officially ended, appellant met with Dr. Strube and an 

administrative assistant to discuss the program’s decision not to 

offer appellant another contract. On June 24, 2014, the manager 

of academic affairs showed appellant the form filled out by 

programs to communicate completion of a year of training to the 

Medical Board of California. The form was completed and signed 
9

by Dr. Choi with an attached letter of explanation to the Medical 

Board. The letter advised that appellant had finished the year 

with competencies but that she would not be moving on to a 

second year, as it was anticipated that she would not have her 

unrestricted California practice license by July 1, 2014, in time 

for the start of the new clinical year.

On July 1, 2014, appellant forwarded Dr. Burg, Dr. Choi, 

and Dr. Chavoshan an email indicating that she had received her 

California medical license. Appellant pursued a grievance with 

SMMC’s human resources office, which was denied on October 8, 

2014.

PROCEDURAL HISTORY

Appellant filed a verified complaint for damages on April 1, 

2016, which contained causes of action for (1) violation of Health 

and Safety Code section 1278.5;3 (2) violation of Labor Code 

____________________________________________________________

3 Health and Safety Code section 1278.5 “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 government entities of suspected unsafe patient 

care and conditions.” (Health & Saf. Code, § 1278.5, subd. (a).) 

The statute further mandates that “[a] health facility shall not 

discriminate or retaliate, in any manner, against a patient, 

employee, member of the medical staff, or other health care 

worker of the health facility” on the grounds that the employee 

“[p]resented a grievance, complaint, or report to the facility” (§ 

1278.5, subd. (b)(1)(A)) or “[h]as initiated, participated, or 

cooperated in an investigation . . . related to the quality of care, 

services, or conditions at the facility” among other things. 

(§ 1278.5, subd. (b)(1)(B).) Pursuant to subdivision (g), “[a]n 

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 
10

sections 98.6 and 1102.5; (3) violation of Business and Professions 

Code section 2056; (4) intentional interference with prospective 

economic relations; and (5) adverse action in violation of public 

policy. Respondent was named in all causes of action except the 

fourth, while Drs. Burg, Choi, Strube, and Kehrle (individual 

defendants) were named on the first, third, and fourth causes of 

action. The trial court sustained the individual defendants’ 

demurrers to the first, third, and fourth causes of action without 

leave to amend, dismissing them from the action.

The parties then filed a stipulation allowing appellant to 

amend her complaint and file the FAC. The stipulation 

confirmed that appellant agreed to amend her complaint based 

on recent decisions in Shaw v. Superior Court (2017) 2 Cal.5th

983 (Shaw) [holding there is no statutory right to a jury trial 

under Health and Safety Code section 1278.5, subdivision (g)] 

and Melamed v. Cedars-Sinai Medical Center (2017) 8 

Cal.App.5th 1271 [suggesting that a one-year statute of 

limitations may be appropriate for a claim under Health and 

Safety Code section 1278.5], review granted and transferred for 

reconsideration on other grounds (Sept. 25, 2019, S245420). 

Appellant agreed to dismiss her causes of action under Health 

and Safety Code section 1278.5 and Business and Professions 

Code section 2056, as well as her cause of action for intentional 

interference with prospective economic relations.

The trial court approved the parties’ stipulation on August 

23, 2017, and the FAC was deemed filed. In the FAC, appellant 

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.”
11

alleged: (1) violation of Labor Code sections 98.6 and 1102.5; and 

(2) adverse action in violation of public policy.

Respondent filed a motion for summary judgment or, in the 

alternative, summary adjudication on September 8, 2017 (MSJ). 

In its supporting memorandum, respondent argued that 

appellant did not engage in any activity protected by Labor Code 

sections 98.6 or 1102.5; that California law does not recognize a 

common law cause of action based on nonrenewal of a fixed term 

contract; that appellant had no evidence that respondent acted 

with retaliatory animus, and that she could not overcome the 

great deference that should be accorded to the residency 

program’s academic and medical judgment. Respondent further 

argued that appellant lacked clear and convincing evidence of the 

requisite conduct to support her request for punitive damages.

Appellant filed her opposition papers nearly a year later, on 

August 15, 2018. Appellant asserted that she was retaliated 

against for her March 10, 2014 email set forth above. Appellant’s 

opposition did not address respondent’s argument that California 

law does not recognize a tort for wrongful nonrenewal of a fixed 

term employment contract. Respondent filed a reply on August 

24, 2018.

The motion was heard on August 29, 2018. On August 31, 

2018, the trial court issued a minute order granting the motion. 

The trial court ruled that appellant did not engage in any activity 

protected by Labor Code sections 98.6 or 1102.5 because she did 

not file a complaint or institute any proceeding, and failed to 

identify any rule or regulation allegedly violated by respondent.

The trial court concluded there was no tort cause of action for 

nonrenewal of a fixed term employment contract. The court held
12

that appellant’s request for punitive damages was moot for the 

same reasons.

Respondent filed a notice of entry of judgment on 

September 25, 2018. Appellant filed a notice of appeal on 

November 9, 2018.

DISCUSSION

I. Applicable law and standard of review

The purpose of the summary judgment procedure is to 

reveal whether “there is no triable issue as to any material fact.” 

(Code Civ. Proc., § 437c, subd. (c).) An issue of material fact is 

one which “‘warrants the time and cost of fact finding by trial.’” 

(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) The trial 

court’s role is to determine whether such issues of fact exist, not 

to decide the merits of any such issues. (California Traditions, 

Inc. v. Claremont Liability Ins. Co. (2011) 197 Cal.App.4th 410, 

416.) A triable issue of material fact exists if the evidence would 

allow a reasonable trier of fact to find the underlying fact in favor 

of the party opposing the motion in accordance with the 

applicable standard of proof. (Aguilar v. Atlantic Richfield Co. 

(2001) 25 Cal.4th 826, 850 (Aguilar).)

A defendant moving for summary judgment bears the 

burden of persuasion that there is no triable issue of material fact 

and he is entitled to judgment as a matter of law. (Aguilar, 

supra, 25 Cal.4th at p. 850.) The defendant must show that one 

or more elements of the cause of action cannot be established, or 

that there is a complete defense to that cause of action. (Code 

Civ. Proc., § 437c, subd. (p)(2).) A defendant may meet this 

burden by showing that the claim cannot be established due to a 

lack of evidence on an essential element of the claim. (Union 

Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)
13

Once the defendant meets this burden, the burden shifts to 

the plaintiff to show that a triable issue of fact exists as to that 

cause of action or defense. If the plaintiff is unable to show the 

existence of a triable issue of material fact, summary judgment in 

favor of the defendant is proper. (Union Bank v. Superior Court, 

supra, 31 Cal.App.4th at p. 590.)

We review the trial court’s decision to grant the summary 

judgment motion de novo, applying the same legal standard as 

the trial court. (Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. 

(2006) 136 Cal.App.4th 1409, 1414, citing Paz v. State of 

California (2000) 22 Cal.4th 550, 557.)

II. Labor Code sections 98.6 and 1102.5 (first cause of 

action)

A. Appellant has abandoned any argument under 

Labor Code section 98.6

Labor Code section 98.6, subdivision (a) provides, in 

relevant part, that an employer “shall not discharge an employee 

or in any manner discriminate, retaliate, or take adverse action 

against” that employee based on any conduct delineated in this

chapter or if the employee has “filed a bona fide complaint or 

claim or instituted or caused to be instituted any proceeding 

under or relating to his or her rights that are under the 

jurisdiction of the Labor Commissioner, made a written or oral 

complaint that he or she is owed unpaid wages, or because the 

employee has initiated any action or notice pursuant to Section 

2699, or has testified or is about to testify in a proceeding 

pursuant to that section, or because of the exercise by the 

employee or applicant for employment on behalf of himself, 

herself, or others of any rights afforded him or her.”
14

In its motion, respondent argued that appellant had not 

engaged in any activity protected under Labor Code section 98.6. 

Appellant’s opposition did not assert any arguments under 

section 98.6. Neither her opening brief to this court, nor her 

reply brief, contain any such argument either. Under these

circumstances, appellant has abandoned this cause of action, and 

we do not further review the trial court decision on this claim. 

(Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 

1513.)

B. Summary judgment was properly granted as to 

appellant’s claim under Labor Code section 1102.5

Labor Code section 1102.5, subdivision (b), provides:

“An employer, or any person acting on behalf of 

the employer, shall not retaliate against an employee 

for disclosing information, or because the employer 

believes that the employee disclosed or may disclose 

information, to a government or law enforcement 

agency, to a person with authority over the employee 

or another employee who has the authority to 

investigate, discover, or correct the violation or 

noncompliance, or for providing information to, or 

testifying before, any public body conducting an 

investigation, hearing, or inquiry, if the employee has 

reasonable cause to believe that the information 

discloses a violation of a state or federal statute, or a 

violation of or noncompliance with a local, state, or 

federal rule or regulation, regardless of whether 

disclosing the information is part of the employee’s 

job duties.”

Labor Code section 1102.5, subdivision (c) prohibits 

retaliation “against an employee for refusing to participate in an 

activity that would result in a violation of a state or federal 
15

statute, or a violation of or noncompliance with a local, state, or 

federal rule or regulation.”

The FAC quoted both subdivision (b) and subdivision (c) of 

Labor Code section 1102.5. Under subdivision (c), the employee 

must specifically identify the activity in which she refused to 

engage, and the specific statute, rule, or regulation that 

purportedly would have been violated. (Nejadian v. County of 

Los Angeles (2019) 40 Cal.App.5th 703, 719 [cause of action under 

Labor Code section 1102.5, subdivision (c) requires employee to 

“identify what specific activity he or she refused to participate in 

and what specific statute, rule, or regulation would be violated by 

that activity”].) Although subdivision (b) requires only 

“reasonable cause to believe” that there has been a violation of a 

local, state, or federal rule or regulation, the employee is subject 

to the same requirement to identify the specific law that the 

employee believes has been violated. (Id. at pp. 718-719).

Appellant did not identify any law, rule, or regulation 

which she thought had been violated or that she had been asked 

to violate. Instead, she made vague assertions that her 

complaints concerned patient safety. Under the circumstances, 

the trial court properly granted summary judgment.

For the first time on appeal, appellant raises some statutes 

she claims supported a reasonable belief on the part of appellant 

that respondent was violating the law. Appellant cites title 42 

United States Code section 1320c-5, concerning Medicare, which 

mandates health care providers assure that medical care be 

provided “economically, and only when . . . medically necessary,” 

be of “a quality which meets professionally recognized standards 

of health care,” and be “supported by evidence of medical 
16

necessity.”4 Appellant concedes that none of the statutes or 

regulations raised here were raised in the trial court, but 

suggests that we consider them as they concern a pure issue of 

law. (Ryan v. Real Estate of the Pacific, Inc. (2019) 32 

Cal.App.5th 637, 644 [permitting new question of law presented 

on appeal based on undisputed facts]; see also Nippon Credit 

Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 

500.)

Appellant presents no authority that she was not required 

to specify at the trial court level a law that she reasonably 

believed to have been broken, as to a claim under Labor Code 

section 1102.5. Ross v. County of Riverside (2019) 36 Cal.App.5th 

580 (Ross) is distinguishable. In Ross, a former assistant district 

attorney (DA) brought a claim for violation of Labor Code section 

1102.5, among other claims, against the county. During his 

employment, the assistant DA had disclosed to his superiors that 

the district attorney’s office would not be able to prove a 

particular case beyond a reasonable doubt; lacked probable cause 

because the defendant’s confession was coerced; and that DNA 

evidence exculpated the defendant. (Ross, at p. 592.) The 

assistant DA recommended dismissing the case based on his 

belief that prosecuting it would be a violation of the defendant’s 

due process rights as well as a prosecutor’s ethical obligations 

under state law. (Ibid.) Although he did not expressly state in 

his disclosures to his superiors that he believed they would be 

____________________________________________________________

4 Appellant also cites, for the first time in her opening brief, 

other federal and state laws she claims are in accord, such as 

Welfare and Institutions Code section 14059.5; California Code of 

Regulations, title 22, section 41452 and title 2, section 60323, 

subdivision (a).
17

violating these laws, his reasonable belief of such violations was 

sufficient. (Ibid.) Ross does not suggest that a plaintiff asserting 

a claim under Labor Code section 1102.5 need not assert the 

reasonable belief of a specific violation at some point during the 

trial court proceedings. Green v. Ralee Engineering Co. (1998) 19 

Cal.4th 66 (Green), similarly does not advance appellant’s 

position. Green rejected a defendant’s claim that the plaintiff 

failed to produce specific statutes at the trial court level where 

“plaintiff had adequately identified several relevant FAA 

regulations as part of his opposition to summary judgment.” (Id. 

at p. 74.) In contrast, appellant has failed to identify any such 

statutes during the summary judgment proceedings. Thus, her 

present arguments must be deemed forfeited on appeal out of 

fairness to respondent. (Ochoa v. Pacific Gas & Electric Co. 

(1998) 61 Cal.App.4th 1480, 1488, fn. 3 (Ochoa) [point not raised 

in appellant’s opposition papers or during argument on summary 

judgment motion below, and thus not considered below, is 

“waived and will not be considered for the first time on appeal”].)

We note that even if we considered these provisions, cited 

for the first time on appeal, appellant has failed to provide a 

citation to the record suggesting that appellant reasonably 

believed that respondent may have acted in a way that violated 

any of these laws. Appellant does not suggest that she set forth 

any facts below establishing a belief on her part that respondent 

was violating these laws in any respect.

The trial court properly granted summary judgment as to 

appellant’s first cause of action for violation of Labor Code 

sections 98.6 and 1102.5.
18

III. Adverse action in violation of public policy (second 

cause of action)

A. Summary judgment was properly granted

Appellant’s second cause of action is a tort claim based on 

Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 (Tameny). 

In Tameny, the Supreme Court held that when an employee’s 

discharge violates fundamental principles of public policy, the 

discharged employee may maintain a tort action against his or 

her former employer and recover damages. (Id. at pp. 178-179.)

5

In its motion, respondent argued that summary judgment 

should be granted as to this cause of action because California 

does not recognize a tort claim based on failure to renew a fixedterm employment contract. California courts of appeal have 

uniformly declined to recognize such a tort. (Touchstone 

Television Productions v. Superior Court (2012) 208 Cal.App.4th 

676, 678 (Touchstone); Motevalli v. Los Angeles Unified School 

Dist. (2004) 122 Cal.App.4th 97, 102 (Motevalli); Daly v. Exxon 

Corp. (1997) 55 Cal.App.4th 39; 43 (Daly).) Appellant provided 

no contrary argument in her opposition to the motion below.

Respondent accurately set forth the law, and appellant 

forfeited any arguments not presented to the trial court. (Ochoa, 

supra, 61 Cal.App.4th at p. 1488, fn. 3.) Thus, summary 

judgment of this cause of action was properly granted.

____________________________________________________________

5 A Tameny cause of action is not strictly limited to wrongful 

termination. The tort has been expanded to include lesser forms 

of discipline, including wrongful demotion of existing employees. 

(Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 

abrogated on other grounds in Gantt v. Sentry Insurance (1992) 1 

Cal.4th 1083, 1093; Scott v. Pacific Gas & Electric Co. (1995) 11 

Cal.4th 454, 473-474.)
19

B. The basis of the purported public policy violation 

is not determinative

Because California courts have declined to recognize a tort 

for failure to renew a fixed-term contract, the trial court properly 

granted summary judgment on this cause of action, regardless of 

the specific public policy violation allegedly underlying the claim. 

Appellant forfeited any arguments to the contrary by failing to 

raise them in the trial court. (Ochoa, supra, 61 Cal.App.4th at p. 

1488, fn. 3.)

Nevertheless, appellant argues at length in her opening 

brief that triable issues of fact remain as to whether respondent’s 

act of declining to renew her employment contract violated 

Health & Safety Code section 1278.5. We note that appellant’s 

FAC did not allege a direct violation of section 1278.5. Instead, it 

alleged a tort cause of action under Tameny. As a matter of law,

there is no tort cause of action for an employee based on the act of 

declining to renew a fixed term employment contract.

(Touchstone, supra, 208 Cal.App.4th at p. 678; Motevalli supra,

122 Cal.App.4th at p. 102; Daly, supra, 55 Cal.App.4th at p. 43.) 

Respondent, in moving for summary judgment, was required to 

address only the issues raised in the FAC. (Soria v. Univision 

Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 585.) Because 

appellant did not allege an actionable adverse action, the court 

properly granted summary judgment on this tort cause of action.

6

____________________________________________________________

6 Both parties address Williams v. Sacramento River Cats 

Baseball Club, LLC (2019) 40 Cal.App.5th 280, which was 

published after appellant filed her opening brief in this appeal. 

Williams involved a plaintiff’s accusation that an organization 

failed to hire him based on his race. The Williams court 

determined that the plaintiff could not maintain a Tameny tort 

action against the organization due to the fact that he was a job 
20

Shaw, supra, 2 Cal.5th 983, does not suggest otherwise. 

Shaw involved an underlying claim of wrongful termination. (Id. 

at p. 988.) The plaintiff brought two causes of action, one based 

on violation of Health and Safety Code section 1278.5, 

subdivision (g), and a second cause of action for wrongful 

termination in violation of public policy under Tameny. (Shaw, 

at p. 988.) The Shaw court held that section 1278.5 “is not 

reasonably understood, as a matter of statutory interpretation, to 

afford a right to a jury trial.” (Shaw, at p. 999.) However, the 

high court confirmed that “in an employee’s suit for retaliatory

termination, any conduct of the health care facility that would 

support a cause of action under section 1278.5(g) would also 

provide a basis for a tort action under Tameny. [Citations.]” 

(Shaw, at p. 1004.) Shaw does not authorize a tort action for 

failure to renew a fixed term employment contract.

Appellant’s attempt to distinguish Touchstone is 

unconvincing. Appellant asserts that because Shaw was decided 

after Touchstone, Shaw opened the door to a potential cause of 

action for nonrenewal of a fixed-term contract because it 

confirmed that although there is no right to a jury trial directly 

under Health and Safety Code section 1278.5, a plaintiff can 

applicant instead of an employee. The Williams court concluded: 

“Because plaintiff was not an employee, defendant did not owe 

him a duty; thus, plaintiff’s Tameny claim must fail.” (Williams, 

at p. 288.) While the plaintiff was not without recourse because 

he could proceed under various statutory and constitutional 

theories, he could not maintain a tort action against the 

organization. Williams supports the line of cases holding that 

the wrongful failure to renew a fixed-term employment contract 

does not support a tort action as the employer has not breached 

any duty to the fixed-term employee. (Id. at pp. 287-288).
21

preserve such jury trial rights by framing the cause of action as a 

Tameny cause of action. Appellant highlights the following 

footnote in Shaw:

“In this case, plaintiff seeks recovery for 

retaliatory termination and thus clearly may 

maintain an action and obtain a jury trial under 

Tameny. Because the issue is not before us, we have 

no occasion to consider under what circumstances a 

plaintiff in a section 1278.5(g) action who alleges 

discriminatory treatment other than retaliatory 

termination has a right to bring a Tameny action or 

is otherwise entitled to a jury trial.”

(Shaw, supra, 2 Cal.5th at p. 1006, fn. 20.)

The footnote goes on to cite Daly, Motevalli, and Touchstone

for the well-settled proposition that a Tameny action cannot be 

based on the failure to renew a fixed term employment contract. 

(Shaw, supra, 2 Cal.5th at p. 1006, fn. 20.)

We find no authority in Shaw to expand the scope of 

existing law regarding Tameny tort actions. Failure to renew a 

fixed term employment contract is not actionable. Appellant has 

not convinced this court that an exception to this settled law

should be carved out for purported violations of Health and 

Safety Code section 1278.5.

C. The hybrid employee-student relationship at issue 

does not change the result

Appellant argues that even if Touchstone, and the cases in 

agreement with Touchstone, preclude a cause of action for failure 

to renew an employment contract in violation of public policy, the 

holding of these cases should not apply to the hybrid employeestudent relationship that existed between appellant and 
22

respondent. While appellant has forfeited this argument by 

declining to raise it below, we address it briefly. (Ochoa, supra, 

61 Cal.App.4th at p. 1488, fn. 3.)

Appellant cites Ezekial v. Winkley (1977) 20 Cal.3d 267, 

which holds that a medical resident is entitled to fair procedure 

prior to his dismissal from a residency program. She also cites 

Stretten v. Wadsworth Veterans Hospital (9th Cir. 1976) 537 F. 2d 

361, 368, which emphasizes a medical resident’s property 

interests, which are “to maintain his income, to complete the 

residency phase of his medical education, and to protect his 

professional reputation.” Neither case cited by appellant 

involved a Tameny action. In fact, both cases pre-date Tameny. 

Thus, neither case suggests that a medical resident has any 

greater interest in renewal of a fixed-term contract than other 

types of employees.

Appellant points to testimony in the record from her expert 

witness, suggesting that the procedures implemented to carry out 

the nonrenewal of appellant’s employment contract fell below the 

standard operating procedures of reputable programs and that 

the residency was a three-year program. However, the language 

of the contract that appellant signed was unequivocal, and 

appellant cites no law suggesting that we should interpret the 

fixed-term contract in any other way. Appellant’s expert’s 

opinion does not create a legal issue as to the length of the 

contract term. We are not inclined to characterize the 

nonrenewal as a termination, in the absence of legal authority 

that it should be characterized as such.

Further, as respondent points out, appellant’s status as a 

hybrid employee-student also arguably requires us to give 

respondent’s nonrenewal decision more deference due to 
23

respondent’s authority to evaluate appellant academically. (See, 

e.g., Paulsen v. Golden Gate Univ. (1979) 25 Cal.3d 803, 808 

[recognizing a “widely accepted rule of judicial nonintervention 

into the academic affairs of schools. [Citations.]”; Banks v. 

Dominican College (1995) 35 Cal.App.4th 1545, 1551 [academic 

decisions of a private university must be upheld unless they 

represent “‘substantial departure from accepted academic 

norms”’].) Courts have recognized that in cases involving 

academic dismissals, under this “highly deferential standard of 

review, cases challenging academic dismissals often will 

appropriately be resolved as a matter of law on summary 

judgment.” (Ibid.) We need not decide whether respondent 

abused its discretion in this matter. We merely note that while 

appellant argues that respondent’s nonrenewal decision should 

be scrutinized more in her case, there are alternative arguments 

as to why it should be scrutinized less.

Appellant finished her one-year employment contract with 

a satisfactory rating. No tort claim lies for the nonrenewal of this 

contract. Appellant has not convinced us that any exceptions 

apply in this case. Summary judgment was properly granted.

IV. Request for leave to amend

Appellant argues that we should reverse the trial court’s 

grant of summary judgment and allow her to pursue a direct 

cause of action under Health and Safety Code section 1278.5, 

notwithstanding her previous decision to abandon that claim.7 In 

____________________________________________________________

7 As set forth above, appellant’s initial complaint included a 

cause of action under Health and Safety Code section 1278.5. 

However, following demurrers and a stipulation between the 

parties, appellant agreed to amend her complaint to allege the 
24

support of this argument, appellant cites several cases, all of 

which are distinguishable.

First, appellant cites a line of cases suggesting that the 

label used to describe a cause of action should not be 

determinative. However, none of these cases suggests that an 

appellate court should permit a plaintiff to amend her complaint 

to re-allege a previously dismissed cause of action after summary 

judgment has been granted.8

Appellant argues that both Touchstone and Daly permitted 

a plaintiff to proceed with a statutory claim even when the courts 

concluded that the plaintiff could not proceed with a Tameny tort

claim. However, the two cases involved different procedural 

backgrounds. In Daly, the plaintiff appealed after the trial court 

sustained the defendants’ demurrer without leave to amend. 

two causes of action discussed here. Thus, she voluntarily 

dismissed the section 1278.5 cause of action.

8 Appellant cites the following cases: Bird, Marella, Boxer & 

Wolpert v. Superior Court (2003) 106 Cal.App.4th 419 [involving 

a demurrer]; Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 

Cal.App.4th 1017, 1034 [reversing summary judgment in favor of 

insurer where scope of an insurer’s duty does not depend on the 

labels given to the causes of action in the third party complaint 

but on the facts alleged]; Ananda Church of Self-Realization v. 

Mass. Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281-1282 

[holding trial court properly sustained demurrer without leave to 

amend in favor of insurer where insured were accused of stealing 

documents that were in fact trash]; Bay Cities Paving & Grading 

v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 857-858 

[holding legal malpractice claim based on two omissions 

constituted a single claim under policy]; Big Boy Drilling Corp. v. 

Rankin (1931) 213 Cal. 646, 648-649 [holding trial court properly 

allowed plaintiff to amend its complaint to conform to proof].)
25

While the Daly court confirmed that the plaintiff had no Tameny 

claim because her contract was for a one-year term (Daly, supra, 

55 Cal.App.4th at p. 45), the matter was remanded because the 

trial court did not properly consider the plaintiff’s claim for 

statutory damages under Labor Code section 6310. (Daly, at p. 

43.) The case before us does not involve a demurrer, thus the 

issue of leave to amend was not a key consideration in the 

proceedings.

Touchstone was a writ proceeding following denial of the 

defendant’s motion for directed verdict. (Touchstone, supra, 208 

Cal.App.4th at p. 680.) The Court of Appeal issued a writ 

ordering the trial court to enter a directed verdict in the 

defendant’s favor on the plaintiff’s Tameny claim because “‘[t]he 

employment contract was for a fixed term and . . . [u]nder a fixedterm contract, the “employment is terminated by . . . [¶] 

. . . [e]xpiration of its appointed term.” [Citation.]’ [Citations.]” 

(Touchstone, at p. 681.) However, the plaintiff was permitted to 

amend her complaint to allege a cause of action under Labor 

Code section 6310. (Touchstone, at p. 684.) The matter was not 

on appeal from an order of summary judgment, and the 

defendant did not oppose giving the plaintiff an opportunity to 

file an amended complaint. (Id. at p. 682, fn. 6.) Touchstone does 

not suggest that a plaintiff should be permitted to amend a 

complaint where, as here, the plaintiff voluntarily dismissed the 

requested cause of action and did not raise it again throughout 

summary judgment proceedings in which the defendant 

prevailed.
26

Appellant has not convinced this court that she should be 

permitted to amend her complaint at this stage of the litigation. 

Summary judgment was properly granted.9

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs 

of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

ASHMANN-GERST

__________________________, J.

HOFFSTADT

____________________________________________________________

9 Because we affirm the trial court’s ruling on the merits, we 

need not address the order disposing of appellant’s claim for 

punitive damages.