Egge v. County of Santa Clara CA6 ( 2024 )

Filed 9/25/24 Egge v. County of Santa Clara CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
MELISSA KELLY EGGE, H050832
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 18CV329071)
v.
COUNTY OF SANTA CLARA,
Defendant and Respondent.
Physicians at the Santa Clara Valley Medical Center who treated a toddler for
broken arms consulted Melissa Kelly Egge, M.D., one of the hospital’s child abuse
specialists. Egge initially did not suspect child abuse, but upon further review of the
child’s chart a few months later, determined that the child’s injuries should be reported to
Child Protective Services (CPS). Egge initially understood her direct supervisor would
make the report. On learning that he had reservations about reporting, Egge urged him to
document the child’s chart but did not report the suspected abuse herself. The suspicions
went unreported, and the child was killed soon after.
The hospital CEO immediately put Egge and her supervisor on administrative
leave; the medical staff’s peer review committee suspended their clinical privileges; then
the county, which operates the hospital, fired both.
1
Egge sued the county for breach of contract and retaliation under Labor Code
section 1102.5.1 The trial court granted summary judgment in the county’s favor and
Egge now appeals from the judgment. Egge argues, on her breach of contract claim, that
her submission to the medical staff bylaws as a condition of employment raised a triable
issue of material fact on whether the county was contractually obliged to observe her
procedural rights under those bylaws. On her retaliation claim, Egge argues her
complaints to the hospital’s chair of pediatrics about the hospital’s reliance on child
abuse specialists to make CPS referrals raised a triable issue of material fact about the
county’s knowledge of her complaints when firing her.
Concluding that the county is entitled to judgment as a matter of law on both
claims, we affirm the order. (Code Civ. Proc., § 437c, subd. (c).)
I. BACKGROUND
A. Overview
The county operates the Santa Clara Valley Medical Center and is responsible for
hiring, disciplining, and terminating physicians employed by the county to work at the
hospital. Physicians hired by the county are “unclassified” at-will employees under the
county charter. During the relevant period, the hospital’s senior leadership comprised the
following individuals: (1) Jeff Smith, M.D., County Executive, (2) Paul Lorenz, Chief
Executive Officer, (3) Jeffrey Arnold, M.D., Chief Medical Officer, and (4) Paul Russell,
M.D., Medical Director.
The county hired Egge in 2011 as a suspected child abuse and neglect (SCAN)
specialist for the hospital. A SCAN specialist is a physician who is board certified in
child abuse pediatrics and specially trained to evaluate children’s injuries for abuse.
During her employment, Egge’s direct supervisor was John Stirling, M.D., another
SCAN specialist, and both she and Stirling reported to Stephen Harris, M.D., then-chair
1
Undesignated statutory references are to the Labor Code.
2
of pediatrics. Egge and Stirling were the hospital’s only two SCAN specialists and
alternated fielding calls from colleagues about potential child abuse issues.
Like all licensed medical facilities in California, the hospital is required by state
regulation to have an “organized medical staff responsible to the [hospital’s] governing
body for the adequacy and quality of the care rendered to patients.” (Cal. Code Regs.,
tit. 22, § 70703, subd. (a).) The medical staff is a separate legal entity from the hospital
itself, and “is required to be self-governing and independently responsible from the
hospital for its own duties and for policing its member physicians.” (Hongsathavij v.
Queen of Angels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1130, fn. 2
(Hongsathavij).) State regulation also requires the hospital’s medical staff to adopt
bylaws which, among other things, “provide formal procedures for the evaluation of staff
applications and credentials, appointments, reappointments, assignment of clinical
privileges, appeals mechanisms and such other subjects or conditions which the medical
staff and governing body deem appropriate.” (Cal. Code Regs., tit. 22, § 70703,
subd. (b).) All physicians practicing at the hospital are required to be members of the
medical staff (see Health & Saf. Code, § 1275, subd. (f)), and all members of the medical
staff are required to abide by the medical staff bylaws (Cal. Code Regs., tit. 22, § 70703,
subd. (b)). The medical staff does not hire or release physicians from county
employment, but if a physician is released from county employment, their medical staff
privileges automatically terminate. During the relevant time, Phuong Nguyen, M.D.
served as president of the medical staff.
The Medical Executive Committee is one of the peer review committees
constituted through the medical staff bylaws, and authorized to initiate investigations at
any time to ensure patient safety. The committee’s duties include “evaluating the
performance of a member of the [m]edical [s]taff whenever there is doubt about the
member’s ability to perform requested privileges and taking such actions as may
3
reasonably be deemed necessary in the best interests of the medical staff and the
hospital.”
B. Relevant Allegations from the Operative Complaint
Egge’s lawsuit arose from the hospital’s treatment in July 2015 of A.T., a
two-year-old toddler, for two fractures. The treating physician consulted Egge, which
Egge alleged was a “common practice . . . by mandated reporters [at the hospital] who
suspected abuse in lieu of making a report to [CPS].” After the treating physician
described A.T.’s injuries and the mother’s explanations for them, Egge opined that the
pattern of injury did not suggest child abuse. Over the next few days, other physicians
discovered that A.T. had additional fractures, and the child underwent surgery. Stirling
was also consulted on A.T.’s case while the child was in the hospital, and despite “a
number of red flags,” no one reported the injuries to CPS and the hospital discharged
A.T.
In November 2015, an orthopedic surgeon reviewing A.T.’s case asked Harris
whether a report of suspected child abuse should have been made. Harris asked Egge to
review A.T.’s file. Seeing that the child had suffered four fractures, not the two initially
disclosed to her in July, Egge told Harris that “a CPS report should have been made.” At
Harris’s request, Egge talked to Stirling about filing a CPS report, and it was ultimately
determined that Stirling would make the report.
The next month, Egge asked Stirling if he had reported A.T.’s case to CPS.
Stirling had not but, according to Egge’s complaint, “promised he would do so that
evening.” Stirling, however, did not make a CPS report, and A.T. died the next month
from abuse.
Egge informed Harris of A.T.’s death and the failure to report the case to CPS. In
this conversation with Harris, Egge allegedly “highlighted multiple concerns that [the
hospital’s] policies and procedures were inadequate to comply with California’s
mandated reporting laws.” Egge allegedly told Harris that many other hospital
4
employees failed to comply with mandated reporting laws, and that the hospital’s practice
of deferring to SCAN specialists to make CPS reports “resulted in violations of law.”
Egge also allegedly told Harris about “many other systemic failings which she believed
may have contributed to this child’s death,” including the limited on-call availability of
pediatric radiologists or pediatric social workers on weekends and holidays, and a
purported absence of hospital policy requiring employees to document when a CPS report
had been made.
On learning of A.T.’s death, the hospital CEO (Lorenz) placed Egge and Stirling
on administrative leave pending a Medical Executive Committee investigation. In April
2016, that committee completed its investigation and recommended a six-month
summary suspension of Egge’s clinical privileges and medical staff membership.2
Nguyen also reported Egge’s suspension to the state medical board under Business and
Professions Code section 805. The day after the Medical Executive Committee
completed the investigation, County Executive Jeff Smith terminated Egge’s
employment.
Egge sued the county for breach of contract and unlawful retaliation. On her
breach of contract claim, Egge alleges that at the time of her hire, she and the county
“entered into a contractual employment agreement,” and that a component of the
agreement required Egge to abide by the medical staff bylaws. Egge contends that her
acceptance of the county’s employment mutually obliged both her and the county to
adhere to medical staff bylaws, and that her suspension and discharge followed a medical
staff investigation that violated those bylaws. The basis for Egge’s retaliation claim was
2
Egge appealed her summary suspension to the medical staff’s Hearing
Committee. The Hearing Committee found that Egge’s initial assessment of A.T. and her
subsequent failure to report A.T.’s injuries to CPS “fell below . . . , and negatively
deviated from, Medical Center and Medical Staff standards of care and practice.”
(Boldface omitted.) But it concluded that the summary suspension of Egge’s clinical
privileges “was not a reasonable and warranted corrective action.” (Boldface omitted.)
5
that the county fired her for complaining to Harris about the hospital’s child abuse
reporting practices—specifically, the practice of having other physicians consult SCAN
specialists about suspected child abuse rather than reporting the suspicions directly to
CPS, and other alleged “systemic failings.”
C. The Motion for Summary Adjudication
1. The County’s Evidence
As to the breach of contract claim, the county put forth the following undisputed
material facts in moving for summary adjudication: (1) the county is a public entity
constituted by charter, (2) the county charter designates those it employs as physicians as
“unclassified” employees, and (3) as an unclassified employee of the county, Egge’s
employment was “at will” and she could be discharged without cause.
The county also presented evidence that when Egge was hired, she received from
Harris an offer letter setting forth the terms of her employment, including her
compensation, benefits, and job responsibilities. The letter specified that Egge’s duties as
a SCAN specialist would include phone and inpatient consultation for alleged child
abuse. The letter further specified that “[a]s a member of the medical staff, you will be
expected to know, understand and abide by all policies of the Medical Staff Bylaws.”
The offer letter did not specify a length of employment. To counter Egge’s allegation
that the offer letter potentially constituted a written employment contract between herself
and the county, the county relied on its charter to establish that it may “only enter
contracts through its Board of Supervisors or an officer with specifically delegated
authority,” and that Harris lacked authority to contract with Egge on the county’s behalf.3
Finally, the county presented evidence that the hospital “has a [m]edical [s]taff
that is a self-governing unincorporated association, independent from the [c]ounty,” that
3
Article III, Section 300 of the county charter provides, “The county may exercise
its powers only through the Board of Supervisors or officers acting under its authority or
of law or of this Charter.”
6
the medical staff adopted bylaws, and that the bylaws have no provision stating that they
are a part of an employment contract.
As to the retaliation claim, the county presented evidence to negate the existence
of a causal link between Egge’s protected activity and the county’s adverse employment
action. The county introduced contemporaneous e-mails between Egge and Stirling,
showing that when Egge learned that Stirling had not reported A.T.’s injuries to CPS in
December 2015, she neither reported the suspected abuse herself nor further urged
Stirling to do so. Although Egge reminded Stirling that they had “talked about reporting
it,” she closed by telling him, “But either way . . . can you enter a quick note [in the
chart]?”
The county relied on Egge’s deposition testimony and Harris’s declaration to
establish that any complaints Egge made about the hospital’s child abuse reporting
practices were only to Harris. And Harris neither participated in the decision to fire Egge
nor shared Egge’s complaints with anyone who did. The county provided Smith’s
declaration that it was Smith who “made the decision to release Egge from her
employment.” In deciding to fire Egge, Smith consulted “the Chief Medical
Officer . . . Dr. Jeffrey Arnold; the Chief Executive Officer . . . Paul Lorenz; and the
Medical Director . . . Dr. Paul Russell.” Smith did not consult with Nguyen or Harris,
nor did he inform them of his decision. According to Smith’s declaration, at no point
before firing Egge was Smith ever “informed of any complaints by Dr. Egge, including
any complaints that the [c]ounty was violating any legal requirements related to Child
Abuse reporting, the set-up of the SCAN physician consulting service, staffing, or
documentation problems regarding CPS reports.”
2. Egge’s Opposition
In opposing the county’s motion, Egge both disputed the sufficiency of the
county’s evidence and presented additional evidence of her own.
7
On her breach of contract claim, Egge did not dispute that the county is a public
entity, that she was a public employee, or that her employment was at will. Egge relied
on the offer letter and the hospital’s medical staff bylaws, however, contending that those
documents raised an issue of disputed fact as to whether she and the county entered into
an enforceable contract that “supplemented” the terms of her public employment.
On the retaliation claim, Egge acknowledged, “[T]here may be no direct evidence
that the [c]ounty unlawfully retaliated against [her].” She argued, however, that “taking
the circumstantial evidence at hand and liberally construing all evidence in favor of Dr.
Egge . . . the evidence demonstrates it is more likely than not that Dr. Egge’s
whistleblowing was a contributing factor for the [c]ounty’s decision to terminate [her].”
Egge produced her own deposition testimony that she shared with Harris on
learning of A.T.’s death her concerns about the hospital’s child abuse reporting practices.
Egge testified that she told Harris there were “many errors in the care for this child, and
that we should review the totality of care.” Egge testified she also expressed to Harris
concern that the hospital’s practice of deferring to SCAN specialists to make child abuse
reports effectively held her and Stirling to a “higher standard” than the other mandated
reporters and thereby placed her and Stirling at risk.
Egge pointed to the timeline established by the county’s evidence—it was “[l]ess
than [10] days after her report to [Harris]” that (1) the hospital placed her on
administrative leave and (2) the Medical Executive Committee initiated an external peer
review into A.T.’s death. Within this timeline, Egge argued that the fact that Harris
“reported the facts” of A.T.’s death to CEO Lorenz after speaking with Egge supplied an
evidentiary basis to infer that Harris conveyed to Lorenz Egge’s concerns about the
hospital’s child abuse reporting practices, and that Lorenz in turn shared those concerns
with Smith.
Egge also pointed to her April 2016 letter to the Medical Executive Committee,
which she submitted in response to the committee’s invitation to provide written input
8
into the investigation into A.T.’s death. Egge in the letter explained the circumstances of
her initial consultation but closed by stating, “Based on my recollection of the case and
the materials I reviewed, I think there were system-related issues that contributed to the
lack of a report on suspected child abuse being filed on this case. I welcome the
opportunity to be involved in institutional discussions related to refining current
systems.”
Finally, Egge produced the external peer review report of Christine Darr, M.D.,
whose findings and conclusions the Medical Executive Committee ultimately adopted in
concluding its investigation. Darr observed in the report that “any number of
professionals could have reported [A.T.’s injuries] to CPS.” From this, Egge argued that
Darr was necessarily aware of Egge’s complaints about the hospital’s child abuse
reporting practices, and that the Medical Executive Committee had discussed those
complaints during the investigation.4
D. The Trial Court’s Order and Entry of Judgment
The trial court granted the county’s motion.
As to the breach of contract claim, the trial court found that as a public employee,
Egge’s employment was governed by statute, not contract. The court also rejected
Egge’s argument that an employment contract was created through Egge’s offer letter or
through her agreement to abide by the hospital’s medical staff bylaws. The court denied
Egge leave to amend the complaint to add the medical staff as a defendant, reasoning that
amendment “would not overcome the absence of an enforceable employment agreement
in the first instance.”
4
Darr’s report, of course, also made findings about the conduct of Egge and
Stirling. Smith terminated Stirling’s employment as well as Egge’s on the completion of
the investigation. The Medical Executive Committee disciplined at least one other
physician involved in A.T.’s care.
9
As to the retaliation claim, the trial court found that the county had met its initial
burden of showing that its decisionmakers were unaware of Egge’s claimed protected
activity, in that Harris had not communicated Egge’s complaints to anyone who
participated in the decision to fire Egge. The court further found that Egge failed to raise
a triable issue of material fact.
After the trial court entered judgment for the county, Egge timely appealed.
II. DISCUSSION
A. Standard of Review
“Summary judgment is properly granted when there is no triable issue as to any
material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).)” (Morgan v. Regents of University of California (2000)
88 Cal.App.4th 52, 67 (Morgan).) A defendant moving for summary judgment “must
‘ “show[] that one or more elements of the cause of action . . . cannot be established” by
the plaintiff.’ [Citation.] That burden is met when a defendant presents affirmative
evidence that negates an essential element of the plaintiff's claim.” (Santa Clara Valley
Water District v. Century Indemnity Co. (2023) 89 Cal.App.5th 1016, 1034 (Santa Clara
Valley Water District).) If the defendant meets this initial burden, “ ‘the burden shifts to
the plaintiff . . . to show that a triable issue of one or more material facts exists as to that
cause of action . . . [and] set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action . . . .’ [Citation.]” (Id. at p. 1035.)
We review de novo the trial court’s decision to grant summary judgment.
(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, citing Code Civ. Proc.,
§ 437c, subd. (c).) In so doing, we “view the evidence in a light favorable to plaintiff as
the [opposing party] . . . liberally construing her evidentiary submission while strictly
scrutinizing defendant[’s] own showing, and resolving any evidentiary doubts or
ambiguities in plaintiff’s favor.” (Id. at p. 768.) While the party opposing summary
judgment may rely on inferences, “ ‘those inferences must be reasonably deducible from
10
the evidence, and not such as are derived from speculation, conjecture, imagination, or
guesswork. [Citation.]’ ” (Santa Clara Valley Water District, supra, 89 Cal.App.5th at
p. 1035.)
B. Breach of Contract
As to her first cause of action, Egge argues that the county breached the medical
staff bylaws by summarily suspending her privileges and membership without evidence
of imminent harm, failing to timely convene a hearing to review the summary
suspension, and disciplining Egge for actions she took as a part of a quality improvement
review. As in the trial court, however, Egge conflates the county with the hospital’s
medical staff—“a separate legal entity . . . which is required to be self-governing and
independently responsible from the hospital.” (Hongsathavij, supra, 62 Cal.App.4th at
p. 1130, fn. 2.) Egge’s relationship with the nonparty medical staff and its peer review
committee was governed by the medical staff bylaws as a matter of state regulation (see
Cal. Code of Regs., tit. 22, § 70703); her employment with the county was governed by
statute (see Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 164);
neither were governed by a contract.
1. Absence of Express or Implied Contract
In California, a “public employee, whether civil service or not, cannot state a
cause of action for breach of contract . . . arising out of the public employment
relationship,” and the employee’s remedies are “limited to those provided by statute or
ordinance.” (Lachtman v. Regents of University of California (2007) 158 Cal.App.4th
187, 207.) The undisputed facts establish that the county is a public entity, that Egge was
a public employee, and that Egge’s employment was of an “unclassified,” and “at-will”
nature. Egge is thus precluded, as a matter of law, from stating a breach of contract claim
against the county arising out of the employment relationship.
Egge argues that by including in her offer letter a condition that she abide by the
medical staff bylaws, the parties effectively entered into a separate employment contract.
11
In support of her position, Egge notes that the “ ‘ordinary rule that public employment is
a creature of statute, [is] of “limited force” when “the parties are legally authorized to
enter (and have in fact entered) into bilateral contracts to govern the employment
relationship.” ’ ” (Cal Fire Local 2881 v. California Public Employees’ Retirement
System (2019) 6 Cal.5th 965, 980 (Cal Fire), quoting Retired Employees Assn. of Orange
County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1182 (Retired Employees).)
Egge reads this decisional law too broadly.
In Retired Employees, the Supreme Court recognized that “[a] contractual right
can be implied [against a public entity] from legislation” that “ ‘clearly “ . . . evince[s] a
legislative intent to create private rights of a contractual nature enforceable against the
[governmental body].” ’ ” (Retired Employees, supra, 52 Cal.4th at p. 1187, italics
added.) “Where, for example, the legislation is itself the ratification or approval of a
contract, the intent to make a contract is clearly shown.” (Ibid.)
Central to Retired Employees’ holding are two factors not present here: (1) the
existence of “valid bilateral [employment] contracts” (Retired Employees, supra,
52 Cal.4th at p. 1183), and (2) the board of supervisors’ ratification of those contracts,
which “provided the requisite clear manifestation of intent to create contractual rights.”
(Cal Fire, supra, 6 Cal.5th at p. 981). Egge asks us to imply a contract from the terms of
her offer letter, not from the county government’s ratification of an express contract.
This goes too far, as Retired Employees “found the existence of the [express contracts]
critical to its conclusion that an implied contractual right could have been created.” (Cal
Fire, at p. 980; see also Retired Employees, at p. 1185 [emphasizing that plaintiff sought
recognition of an implied term in an existing contract, not an implied contract].) And
even if we could construe Egge’s offer letter as the tender of an employment contract, the
county board of supervisors never ratified the offer letter or otherwise gave any “clear
manifestation of intent to create contractual rights” in Egge’s favor. (See Cal Fire, at
12
p. 981.) Absent action by the only legislative body authorized to act on the county’s
behalf, we have no basis to imply an employment contract between the county and Egge.
2. Absence of Consideration
Egge’s contention that her agreement to be bound by the medical staff bylaws
obligated the county to observe her rights under those bylaws fails for another
independent reason: Her compliance with an independent legal duty cannot serve as
consideration for the contractual duty she would impose on the county. (O’Byrne v.
Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 806–807 (O’Byrne).)
As is well established, “a contract requires consideration,” defined as “ ‘[a]ny benefit
conferred, or agreed to be conferred, upon the promisor, by any other person, to which
the promisor is not lawfully entitled . . . .’ (Civ. Code, § 1605.)” (O’Byrne, at p. 808.)
By contrast, “[a] statutory or legal obligation to perform an act may not constitute
consideration for a contract.” (Ibid.) California Code of Regulations, title 22,
section 70703 requires a hospital’s medical staff to adopt bylaws and its members to
abide by these bylaws. (See O’Byrne, at p. 808.) Because members of the medical staff
are “required by law to abide by the [attending staff bylaws] under section 70703,” their
agreement to do so is not valid consideration. (O’Byrne, at pp. 808, 810.) As a member
of the medical staff, Egge was required to abide by the medical staff bylaws, whatever
the offer letter. The offer letter’s recitation of an otherwise mandatory duty does not
convert Egge’s preexisting legal obligation into a contractual one.
Egge relies inaptly on Janda v. Madera Community Hosp. (E.D.Cal. 1998)
16 F.Supp.2d 1181 (Janda) to argue that valid consideration existed because the
hospital’s medical staff bylaws are “more expansive and comprehensive than the
minimum requirements of California law.” (Janda, at p. 1187.) But Janda examined the
contractual effect of a hospital’s governing body bylaws adopted under California Code
of Regulations, title 22, section 70701, not medical staff bylaws adopted under
13
section 70703.5 And Janda’s holding turned expressly on the distinction between the two
regulatory provisions: While section 70703 “requires physicians comply with the rules
adopted by the medical staff . . . , [i]t does not impose a requirement on physicians to
comply with the bylaws adopted by the governing body of the hospital.” (Janda, at
p. 1187.) Indeed, as the O’Byrne court later recognized, “Janda itself suggested its
conclusion would have been different had it been the medical staff bylaws at issue in the
case rather than the hospital’s governing body’s bylaws.” (O’Byrne, supra,
94 Cal.App.4th at p. 808.)
We conclude that Egge’s public employment was at will and governed by charter
and ordinance, not contract, and that neither the offer letter nor Egge’s agreement to
abide by the medical staff bylaws sufficed to form a separately enforceable employment
contract. Accordingly, the trial court properly granted summary adjudication in favor of
the county as to this cause of action. (Code Civ. Proc., § 437c, subds. (c), (o)(2).)
3. Denial of Leave to Amend
Egge argues the trial court abused its discretion by not granting her leave to amend
the complaint to add the medical staff as a defendant in her breach of contract claim.
Although Egge is correct that “great liberality” should generally be exercised in granting
a plaintiff leave to amend her complaint, “ ‘ “[l]eave to amend should not be granted
where . . . amendment would be futile.” ’ ” (Rocha v. U-Haul Co. of California (2023)
88 Cal.App.5th 65, 75.) Egge has failed to demonstrate that the terms of her county
employment were governed by an enforceable contract—with the county, with the
5
“Hospitals in this state have a dual structure, consisting of an administrative
governing body, which oversees the operations of the hospital, and a medical staff, which
provides medical services and is generally responsible for ensuring that its members
provide adequate medical care to patients at the hospital.” (El-Attar v. Hollywood
Presbyterian Medical Center (2013) 56 Cal.4th 976, 983.) Consistent with this structure,
California Code of Regulations, title 22, section 70701 sets forth the rules and regulations
for the hospital’s administrative governing body, while section 70703 sets forth the rules
and regulations for the medical staff.
14
hospital, or with the medical staff. As the trial court found, amending the complaint
would not help Egge to “overcome the absence of an enforceable employment agreement
in the first instance.”
Moreover, “ ‘ “ ‘even if a good amendment is proposed in proper form,
unwarranted delay in presenting it may—of itself—be a valid reason for denial.’ ” ’ ”
(P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.) The
trial court did not abuse its discretion in finding Egge’s request to amend to be
unreasonably delayed. Egge understood the medical staff to be a separate legal entity
from the county and acknowledged that fact as early as 2019, when she first indicated her
intention to add the medical staff as a defendant. She did not do so, and indeed, did not
seek to further amend the complaint to add the medical staff until after the county had
filed for summary judgment. She did not provide reasons for this multiyear delay, and
the trial court was entitled to deny her request to amend on the basis of such delay alone.
The trial court thus acted within its discretion in denying Egge leave to amend.
C. Whistleblower Retaliation (Section 1102.5)
Egge next contends the trial court erred in granting summary adjudication in favor
of the county on her second cause of action, alleging whistleblower retaliation under
section 1102.5. Section 1102.5 prohibits an employer from retaliating against an
employee for disclosing information the employee has “reasonable cause to believe”
reveals a violation of a local, state, or federal law or regulation. (§ 1102.5, subd. (b);
Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 (Lawson).) A
plaintiff claiming whistleblower retaliation bears the burden of establishing “by a
preponderance of the evidence, that retaliation for an employee’s protected activities was
a contributing factor in a contested employment action.” (Id. at p. 718.) Once the
plaintiff has made this prima facie showing, the burden shifts to the employer to
demonstrate, “by clear and convincing evidence, that it would have taken the action in
question for legitimate, independent reasons even had the plaintiff not engaged in
15
protected activity.” (Ibid.; see also Vatalaro v. County of Sacramento (2022)
79 Cal.App.5th 367, 379–380.)
To establish a prima facie case under section 1102.5, a plaintiff must show:
(1) that she engaged in a protected activity; (2) that she was then subjected to adverse
employment action; and (3) that there is a causal link between the two. (Lawson, supra,
12 Cal.5th at p. 710; Morgan, supra, 88 Cal.App.4th at p. 69.) We assume without
deciding that Egge’s purported complaints to Harris regarding the adequacy of the
hospital’s child abuse reporting practices constituted a protected activity. We
nevertheless conclude in our independent judgment that Egge cannot establish a causal
link between her protected activity and the later termination of her county employment.
1. The County Presented Sufficient Evidence to Negate a Causal Link
The causal link element for a retaliation claim “ ‘ “may be established by an
inference derived from circumstantial evidence, ‘such as the employer’s knowledge that
the [employee] engaged in protected activities and the proximity in time between the
protected action and allegedly retaliatory employment decision.’ ” ’ ” (Morgan, supra,88 Cal.App.4th at p. 69.) But “ ‘[e]ssential to a causal link is evidence that the employer
was aware that the plaintiff had engaged in the protected activity.’ ” (Id. at p. 70.)
Accordingly, the county supported its motion for summary adjudication with
evidence that those who participated in Egge’s firing were unaware of her purportedly
protected activities. Although Egge testified in her deposition that she reported concerns
about the adequacy of the hospital’s child abuse reporting practices to Harris, Harris did
not participate in the decision to fire Egge or even learn of that decision until after the
fact. Harris declared that he “did not communicate with Phuong Nguyen, Jeff Smith,
Jeffrey Arnold, Paul Lorenz, or Paul Russell about any alleged concerns Dr. Egge claims
she raised (e.g., illegal or improper practices at [the hospital] regarding [c]hild [a]buse
reporting, availability of pediatric radiologists and pediatric social workers, or
documentation of CPS reports in the medical record).”
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Lorenz, who consulted with Smith on Egge’s firing, confirmed that he “was never
informed by any person that Dr. Egge made complaints that the [c]ounty was violating
any legal requirements; was engaging in unlawful or improper practices related the
[c]hild [a]buse reporting; had staff problems relating to pediatric radiologist[s] or
pediatric social workers; or that staff failed to document CPS reports in the medical
record.”
Finally, Smith stated in his declaration that before deciding to release Egge from
county employment, he consulted with Arnold, Lorenz, and Russell only. He did not
consult with Harris concerning Egge, and was “never informed of any complaints by Dr.
Egge, including any complaints that the [c]ounty was violating any legal requirements
related to [c]hild abuse reporting, the set-up of the SCAN physician consulting service,
staffing, or documentation problems regarding CPS reports.”
The county’s evidence suffices to meet its initial burden, in that it “affirmative[ly]
. . . negates” the causation element of Egge’s retaliation claim. (See Santa Clara Valley
Water District, supra, 89 Cal.App.5th at p. 1034.) Its evidence establishes that neither
Smith, nor the individuals with whom he consulted, knew of Egge’s purportedly
protected activities at the time Smith made the decision to fire Egge. Smith and Lorenz
affirmatively denied such knowledge, and while the county did not submit affirmative
evidence from Arnold or Russell, it did not have to because Egge never disputed that she
made her complaints about the hospital’s practices to Harris only, and Harris is clear that
he neither participated in the decision to fire Egge, nor shared her alleged concerns with
Arnold or Russell.
Egge nevertheless argues, relying on this court’s decision in Reeves v. Safeway
Stores, Inc. (2004) 121 Cal.App.4th 95 (Reeves), that it is “legally insufficient for the
[c]ounty to simply claim that Dr. Smith made the termination decision and was unaware
of [p]laintiff’s complaints.” Egge maintains that to prevail on summary adjudication, the
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county must establish that “none of the individuals that contributed to the termination
decision knew that [Egge] had complained about unlawful practices at [the hospital].”
Egge correctly notes that an employer does not negate causation without
establishing that all actors who “materially contributed” to the decision to fire her were
unaware of her putative protected activity. (See Reeves, supra, 121 Cal.App.4th at
p. 110.) But Egge mischaracterizes the county’s showing as merely establishing Smith’s
lack of knowledge. The county met its initial burden by showing as well that Egge
communicated her protected activity only to Harris, and that Harris did not communicate
it to any of the others who participated in the decision to fire Egge—Lorenz, Arnold, and
Russell.
In sum, we conclude that the evidence presented by the county in support of
summary adjudication meets its initial burden to negate the causation element of Egge’s
retaliation claim, thereby shifting the burden to Egge to show that there remains a triable
issue of fact as to that claim. (Santa Clara Valley Water District, supra, 89 Cal.App.5th
at p. 1035.)
2. Egge Cannot Show a Triable Issue of Fact
Egge first argues that whether Lorenz had knowledge of Egge’s purportedly
protected activities is a disputed fact. For support, Egge cites the declarations of Lorenz,
Harris, and Smith. Egge references Harris’s recollection that soon after speaking with
Egge about A.T.’s death, Harris spoke with Lorenz, who later consulted with Smith about
Egge’s firing. Egge also references portions of Lorenz’s declaration where Lorenz
confirmed speaking with Harris, and later conferred with Smith regarding Egge’s
termination. Based on evidence that Egge told Harris of her concerns, that Harris then
spoke with Lorenz about A.T.’s death, and that Lorenz later spoke with Smith, Egge
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invites us to infer that when she was fired, Lorenz “likely had knowledge of [Egge’s]
complaints to [Harris],” contrary to Lorenz’s declaration.
But while the party opposing summary judgment may rely on inferences, “ ‘those
inferences must be reasonably deducible from the evidence, and not such as are derived
from speculation, conjecture, imagination, or guesswork. [Citation.]’ ” (Santa Clara
Valley Water District, supra, 89 Cal.App.5th at p. 1035.) Even viewing this evidence in
a light most favorable to Egge and drawing all reasonable inferences in her favor, we see
no triable issue of fact. What Harris averred he reported to Lorenz were the “facts” of
A.T.’s death, not Egge’s “alleged concerns” regarding the hospital’s child abuse reporting
policies and practices. Lorenz confirmed that he and Harris spoke about A.T.’s death and
Egge and Stirling’s failure to make a report to CPS. Lorenz expressly disavowed being
informed by Harris—or anyone—that Egge had made complaints about the hospital’s
child abuse reporting policies or practices. And Egge can point to no contrary evidence.
Egge next argues that Smith must have known of Egge’s complaints about the
hospital’s child abuse reporting practices because (1) Smith consulted with Arnold before
firing her, (2) Arnold participated in the investigation of the Medical Executive
Committee, and therefore must have shared the committee’s findings with Smith, and
(3) the Medical Executive Committee’s investigation surely had unearthed the concerns
Egge reported to Harris. Put another way, Egge invites us to infer that her complaints to
the hospital’s chair of pediatrics about the hospital’s child abuse reporting practices
constituted such a central part of the medial staff’s investigation into A.T.’s death that it
would be “illogical” for Smith, Arnold, and Lorenz, the county officials involved in her
termination, not to have known of and discussed those complaints while discussing the
investigation.
While Egge is correct that Arnold participated in several sessions of the Medical
Executive Committee during the committee’s investigation into A.T.’s death, she can
point to no evidence to substantiate her speculation about what Arnold and the Medical
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Executive Committee knew of her concerns—not even a declaration of her own. If Egge
had shared with the committee her concern that hospital policy and procedure
discouraged mandated reporters from directly reporting suspected child abuse and instead
encouraged them to delegate their reporting duties to Egge and Stirling, neither her
evidence nor Egge’s opposition to the county’s motion gives any hint of this. Her April
2016 letter to the committee—her opportunity under the peer review policy to provide
input to the Medical Executive Committee’s investigation into her conduct—merely
alluded to “system-related issues” and offered “to be involved in institutional discussions
related to refining current systems.” The letter did not outline any of the concerns Egge
specifically alleges she raised with Harris—namely, “illegal or improper practices at [the
hospital] regarding [c]hild [a]buse reporting, availability of pediatric radiologists and
pediatric social workers, or documentation of CPS reports in the medical record.” On its
own, the letter does not put even the Medical Executive Committee on notice of the
concerns relating to hospital policy or procedure that Egge elsewhere recounts reporting
to Harris, nor is it sufficient to raise a triable issue of fact on notice to the county and
causation.
Darr’s external peer review report similarly raises no triable issue of fact on
whether Arnold and the Medical Executive Committee had knowledge of Egge’s
complaints. The report itself confirms that the investigation focused on Egge’s conduct
in the consultation and follow-up about the potential abuse of A.T., not on hospital
policies and practices or Egge’s alleged complaints about them. Pointing to Darr’s
observation in the report that others could have reported the suspected abuse to CPS,
Egge argues that this statement supports an inference that Darr (and by extension, the
committee, Arnold, and the county) had knowledge of Egge’s complaints to Harris
regarding the hospital’s reporting practices. Not so. Egge supplies no basis to infer that
this observation derived from Egge’s complaints rather than Darr’s independent
investigation into the circumstances leading to A.T.’s death. Like Egge’s letter to the
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committee, neither the committee minutes nor Darr’s report ever mentioned Egge’s
alleged complaints about the hospital’s “systemic failures in CPS reporting.” And Egge
does not otherwise explain how Arnold would have learned of those complaints—given
Harris’s unequivocal assertion in his declaration that he never shared Egge’s complaints
with Arnold.
Viewing the evidence independently and in a light most favorable to Egge and
drawing all reasonable inferences in Egge’s favor, we nevertheless conclude that the
county put forth sufficient evidence to negate the existence of any causal link between
Egge’s purportedly protected activity and the termination of her employment, and that
Egge failed to rebut that evidence by raising a triable issue of fact. The county is
accordingly entitled to summary adjudication on Egge’s whistleblower retaliation claim.
III. DISPOSITION
The order granting summary judgment is affirmed. Costs on appeal are awarded
to the county. (Cal. Rules of Court, rule 8.278(a)(1).)
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_____________________________________
LIE, J.
WE CONCUR:
_____________________________________
GREENWOOD, P. J.
_____________________________________
GROVER, J.
Egge v. County of Santa Clara
H050832
22