Johnson v. Riversied Healthcare

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER LYNN JOHNSON, M.D., 
Plaintiff-Appellant,
v.
RIVERSIDE HEALTHCARE SYSTEM, LP,
a California limited partnership,
d/b/a Riverside Community
Hospital; RIVERSIDE HEALTHCARE
SYSTEM, LLC, a California limited No. 06-55280
liability corporation; COLUMBIA/ D.C. No.
HCA WESTERN GROUP, INC., a  CV-03-01392-ABC
Tennessee corporation, doing
ORDER AND
business in California; MEDICAL
OPINION
STAFF OF RIVERSIDE COMMUNITY
HOSPITAL, a California
unincorporated association; ROBERT
DUNCANSON, M.D.; LIBBY MARTIN;
BARBARA MARSHALL; GAY
DICKINSON; PATRICIA LEMMLE; EARL
TATE; MICHAEL RAWLINGS,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted
October 18, 2007—Pasadena, California
Filed July 28, 2008
Before: Diarmuid F. O’Scannlain and Milan D. Smith, Jr.,
Circuit Judges, and Michael W. Mosman,* District Judge.
*The Honorable Michael W. Mosman, United States District Judge for
the District of Oregon, sitting by designation.
9375
9376 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
Opinion by Judge O’Scannlain
9380 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
COUNSEL
Dale L. Gronemeier, Gronemeier & Associates, P.C., South
Pasadena, California, argued the cause for the plaintiff-
appellant, and filed briefs.
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 9381
James L. Payne, Payne & Fears LLP, Irvine, California,
argued the cause for the defendants-appellees, and filed a
brief; Laura Fleming, Payne & Fears LLP, Irvine, California,
and Tami Smason, Foley & Lardner LLP, Los Angeles, Cali-
fornia, were on the brief.
ORDER
The petition for panel rehearing is GRANTED. The opin-
ion filed on February 13, 2008, and appearing at 516 F.3d 759(9th Cir. 2008) is withdrawn. The superseding opinion will be
filed concurrently with this order.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether a physician who
asserts that he was discriminated against (based on his race,
sexual orientation, and perceived disability) by doctors and
nurses at the hospital where he treated patients can establish
civil rights claims under federal and state law.
I
A
Christopher Lynn Johnson worked as a physician at the
Riverside Community Hospital (“Riverside”)1 and as a mem-
ber of the Medical Staff of Riverside Community Hospital
1
Also named as defendants in this suit are Riverside Healthcare System,
LLC (“RHCS”), a limited partnership doing business as Riverside under
California law, and Columbia/HCA Western Group, Inc., a Tennessee cor-
poration with an ownership interest in RHCS. Hereinafter, all three entities
will be referred to collectively as “Riverside.”
9382 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
(“Medical Staff”) from October 1999 until February 2002.
Johnson’s responsibilities included performing plastic sur-
geries and providing trauma consultations in Riverside’s
emergency room. Johnson identifies himself as African Amer-
ican and bisexual. Soon after he began his tenure at Riverside,
Johnson alleges that several physicians regularly harassed him
because of his sexual orientation and their mistaken belief that
he suffered from HIV/AIDS. He alleges that several nurses
harassed him and refused to participate in surgeries with him
for the same reasons. In addition, Johnson points to several
incidents of racial discrimination during his time at Riverside.
The first was particularly serious. According to Johnson, a
colleague, Dr. Vlasak, admonished him by using a racial slur
after Johnson performed surgery on one of Vlasak’s patients.
As the facts are set forth in Johnson’s complaint, Vlasak
failed to review the patient’s CT scan and consequently failed
to realize that the patient was suffering from a skull fracture
with an underlying brain contusion. Upon discovering the
problem, Johnson admitted the patient for surgery and per-
formed the necessary procedure. When Vlasak learned that
Johnson had corrected (and therefore exposed) his oversight,
Vlasak moved as if to strike Johnson, “charged” into the room
where Johnson was standing and “screamed . . . ‘You fucking
nigger—why did you do that to me?’ ”
Second, Johnson alleges that the Medical Staff’s Residency
Selection Committee refused to consider a residency candi-
date because he was African-American and, after rejecting the
application, the Chairman and other members of the commit-
tee “stated in the presence of other physicians” that they
would not rank the applicant because of his race and sexual
orientation. Finally, Johnson states that a certain nurse “con-
sistently” refused to provide him with necessary equipment
during surgical procedures and “repeatedly” asked him to
remove trash from the Operating Room, acting as if these
requests were “funny.” He further alleges that these remarks
were racially motivated, as they reflected the nurse’s view
that he was required to act as a “maintenance man” simply
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 9383
because he was African-American. Johnson alleges that Riv-
erside and the Medical Staff, of which defendant Dr. Robert
Duncanson was the chief, were aware of all of these incidents
and made no effort to address them.
Johnson worked at Riverside under the terms of a profes-
sional services agreement. The contract explicitly designated
Johnson as a “Contractor,” rather than an employee. The con-
tract also required Johnson to retain his membership and priv-
ileges with the Medical Staff. Failure to do so was a cause for
termination.
In February 2002, Johnson’s Medical Staff privileges were
revoked after he failed to pay his membership dues by a dead-
line Johnson claims the Medical Staff imposed arbitrarily and
without warning while he was traveling out of the country.
Because full membership on the Medical Staff was a condi-
tion of his contract, Riverside terminated Johnson soon after-
wards. Johnson immediately applied to the Medical Staff for
reinstatement, but was informed that he could only regain his
status by reapplying to the Staff as a new applicant, which
would require him to submit to a hearing before the Medical
Staff Credentials Committee. Johnson obliged, and was con-
fronted at the hearing with numerous complaints about his
behavior filed by co-workers, all of which he contends were
fabricated. After the hearing, the Committee voted to uphold
the denial of Johnson’s Medical Staff membership. Prior to
the completion of the hearing, Riverside filed a report describ-
ing the complaints against Johnson with the California Medi-
cal Board pursuant to California Business and Professions
Code § 805. Johnson argues that the filing of this report was
premature and cost him future opportunities for employment.
B
On September 26, 2002, Johnson filed a complaint against
Duncanson with the California Department of Fair Employ-
ment and Housing (“DFEH”) alleging that he had been
9384 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
harassed, denied employment, and denied privileges to admit
patients to Riverside on account of his race and sexual orien-
tation. On September 30, 2002, DFEH issued Johnson right
to-sue notices for Duncanson and several other individuals on
the Medical Staff and nursing staff.
On September 2, 2003, Johnson filed a complaint in Cali-
fornia state court against Riverside and several other defen-
dants setting forth multiple civil rights claims under federal
and state law. He voluntarily dismissed that action, however,
on October 16, 2003. Later, on December 2, 2003, Johnson
filed a complaint in the District Court for the Central District
of California against Riverside, the Medical Staff, Duncanson,
and other individuals alleging the same causes of action,
including three relevant to this appeal: (1) racial discrimina-
tion in violation of 42 U.S.C. § 1981; (2) racial and sexual
orientation discrimination in violation of California Civil
Code § 51 (the “Unruh Civil Rights Act claim”) and § 51.5;
and (3) racial and sexual orientation discrimination in viola-
tion of California’s Fair Employment and Housing Act
(“FEHA”), Cal. Gov’t. Code §§ 12940 et seq.
The defendants moved to dismiss all claims under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district
court dismissed Johnson’s claims under California Civil Code
§§ 51 and 51.5 with prejudice, finding that Johnson had failed
to state a claim upon which relief could be granted because
neither provision creates a cause of action for employment
discrimination. The district court did not specifically address
Johnson’s § 1981 claims, but dismissed his remaining claims,
including his FEHA claims, without prejudice, granting him
leave to amend.
Johnson timely filed a first amended complaint which omit-
ted, and thereby waived, all other claims except those men-
tioned here.2 Thereafter, he reached a settlement with several
2
Johnson’s § 1981 claim against the Medical Staff, which included his
contentions that the Medical Staff wrongfully revoked his staff privileges
and that the Medical Staff created a hostile work environment, was among
those claims waived by the first amended complaint.
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 9385
defendants, leaving only Riverside, Duncanson, and the Medi-
cal Staff as defendants in this action. The district court then
dismissed each of Johnson’s remaining claims under Rule
12(b)(6) for failure to state a claim.
Johnson appeals. First, he argues that the district court
erred in dismissing his § 1981 claims against Duncanson and
Riverside, contending that he has sufficiently alleged that the
defendants created a racially hostile work environment in vio-
lation of that provision. Second, Johnson argues that the dis-
trict court erred in dismissing his §§ 51 and 51.5 claims
against all three defendants because both statutes recognize a
cause of action for the type of workplace discrimination John-
son alleges here. Finally, Johnson argues that the district court
erred in dismissing his FEHA claims against all three defen-
dants even though the statute of limitations expired, suggest-
ing that he was entitled to equitable tolling. We consider each
argument in turn.
II
[1] We begin with Johnson’s § 1981 claim against Duncan-
son and Riverside. The district court dismissed such claim
without discussion. Nevertheless, we may affirm based on any
ground supported by the record. Papa v. United States, 281
F.3d 1004, 1009 (9th Cir. 2002). A Rule 12(b)(6) dismissal
may be based on either a “lack of a cognizable legal theory”
or “the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d
696, 699 (9th Cir. 1990). In other words, Johnson’s complaint
must provide a “short and plain statement of the claim show-
ing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This
is not an onerous burden. “Specific facts are not necessary;
the statement need only give the defendant[s] fair notice of
what . . . the claim is and the grounds upon which it rests.”
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (internal
quotation marks omitted). Still, Johnson’s complaint must, at
a minimum, plead “enough facts to state a claim for relief that
9386 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
is plausible on its face.” Bell Atl. Corp. v. Twombly, 127
S. Ct. 1955, 1974 (2007). Finally, in reviewing the district
court’s decision, we view Johnson’s complaint in the light
most favorable to him, accepting all well-pleaded factual alle-
gations as true, as well as any reasonable inferences drawn
from them. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.
2003).
A
[2] Among other things, § 1981 guarantees “all persons”
the right to “make and enforce contracts.” 42 U.S.C.
§ 1981(a). This right includes the right to the “enjoyment of
all benefits, privileges, terms, and conditions of the contrac-
tual relationship,” including the relationship between
employer and employee. Id. § 1981(b). Johnson contends that
Duncanson and Riverside were aware of the harassment he
faced from his co-workers and failed to take steps to address
it, thereby creating a hostile work environment. In this circuit,
such claims are cognizable under § 1981. Manatt v. Bank of
Am., 339 F.3d 792, 797 (9th Cir. 2003). A hostile work envi-
ronment, by its “very nature involves repeated conduct.” Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
To state a hostile work environment claim here, Johnson must
allege that “(1) [he] was subjected to verbal or physical con-
duct because of [his] race, (2) the conduct was unwelcome,
and (3) the conduct was sufficiently severe or pervasive to
alter the conditions of [his] employment and create an abusive
work environment.” Manatt, 339 F.3d at 798 (internal quota-
tion marks omitted).3 In considering whether the discrimina-
tory conduct was “severe or pervasive,” we look to “all the
circumstances, including the ‘frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
3
Hostile work environment claims under Title VII contain the same ele-
ments of a § 1981 hostile work environment claim and, thus, the “legal
principles guiding a court in a Title VII dispute apply with equal force in
a § 1981 action.” Manatt, 339 F.3d at 797.
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 9387
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work perfor-
mance.’ ” Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110
(9th Cir. 2000) (quoting Faragher v. City of Boca Raton, 524
U.S. 775, 787-88 (1998)).
B
[3] At the motion to dismiss stage, Johnson need not sup-
port his allegations with evidence, but his complaint must
allege sufficient facts to state the elements of a hostile work
environment claim. See Twombly, 127 S. Ct. at 1974; see also
Williams v. Boeing Co., 517 F.3d 1120, 1130 (9th Cir. 2008)
(“Even though heightened pleading is not required in discrim-
ination cases, the complaint must still ‘give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.’ ” (quoting Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512 (2002))).
[4] Johnson’s complaint is rife with allegations that his co-
workers harassed him because of his sexual orientation. Nev-
ertheless, because § 1981 creates a cause of action only for
those discriminated against on account of their race or ethnic-
ity, such allegations are irrelevant to his claim. See Jones v.
Bechtel, 788 F.2d 571, 574 (9th Cir. 1986) (holding that a
plaintiff could not assert a § 1981 claim based on gender dis-
crimination). Still, Johnson’s complaint includes at least three
allegations that are relevant to his claim that he was subjected
to a hostile work environment because of his race.
[5] First, Johnson’s encounter with Dr. Vlasak, in which
Vlasak uttered a racial epithet and moved as if to strike him,
was a serious act of discrimination. While “an isolated inci-
dent of harassment by a co-worker will rarely (if ever) give
rise to a reasonable fear that [such] harassment has become a
permanent feature of the employment relationship,” Brooks v.
City of San Mateo, 229 F.3d 917, 924 (9th Cir. 1999), John-
son’s complaint contains other relevant allegations. While the
9388 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
complaint does not allege that Johnson was present at the time
when the African-American residency candidate’s application
was rejected or when the members of the Residency Selection
Committee’s offensive remarks were made, discriminatory
conduct directed at an individual other than the plaintiff may
be relevant to a hostile work environment claim. See, e.g.,
Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022,
1033-34 (9th Cir. 1998). Finally, the allegations of the nurse’s
“repeated” requests that Johnson remove trash from the Oper-
ating Room, which she viewed as “funny,” are also relevant
to his § 1981 claim. We have previously held that a co-
worker’s use of a “code word or phrase” can, under certain
circumstances, contribute to a hostile work environment.
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir.
2004); see also El-Haken v. BJY Inc., 415 F.3d 1068, 1073-74
(9th Cir. 2005) (same). While we are not obligated to accept
every conclusory allegation as true, see, e.g., Sanders v.
Brown, 504 F.3d 903, 910 (9th Cir. 2007), we believe the
inference that racial animus motivated the nurse’s frequent
requests that Johnson perform the tasks of a maintenance man
is a reasonable one that we must construe in his favor at the
motion to dismiss stage.4
4
Not every conclusory allegation must be accepted as true, however.
Johnson’s complaint also states that after he was bitten by a security dog
stationed in Riverside’s emergency room, the dog’s trainer told him not to
complain to the hospital administrators because the dog was “more popu-
lar” with the nurses than Johnson was. The complaint further alleges that
this remark “clearly reflected the trainer’s opinion that an African Ameri-
can physician . . . was lower on the Hospital’s social scale than a dog.”
Rule 8 requires “allegations plausibly suggesting (not merely consistent
with) [racial animus].” Twombly, 127 S. Ct. at 1966. While we believe it
is plausible to infer that the nurse’s comments were racially motivated, the
dog trainer’s otherwise race-neutral insult is not so easily categorized. We,
of course, accept as true Johnson’s allegation that such remark was made.
Nevertheless, because the remaining allegations in his complaint are suffi-
cient to state a hostile work environment claim, we need not decide
whether we must accept his further allegation that the remark was moti-
vated by race.
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 9389
[6] Johnson’s complaint provides Duncanson and Riverside
with “fair notice of what [his] claim is and the grounds upon
which it rests.” Swierkiewicz, 534 U.S. at 512. And, viewing
the totality of the alleged circumstances in the light most
favorable to him, the complaint puts forth “enough facts to
state a claim for relief that is plausible on its face.” Twombly,
127 S. Ct. at 1974. Our notice pleading requirements do not
require more. “Indeed, it may appear on the face of the plead-
ings that recovery is very remote and unlikely but that is not
the test.” Swierkiewicz, 534 U.S. at 515 (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). Accordingly, we conclude
that Johnson’s § 1981 claim must survive Duncanson and
Riverside’s motion to dismiss.
III
Our next task is to determine whether the district court
erred in dismissing Johnson’s claims under California Civil
Code §§ 51 and 51.5.
A
1
[7] California Civil Code § 51 codifies the Unruh Civil
Rights Act and provides that all persons within the State of
California are “free and equal” and “no matter what their sex,
race, color, religion, ancestry, national origin, disability, med-
ical condition, marital status, or sexual orientation are entitled
to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every
kind whatsoever.” Cal. Civ. Code § 51(b). California courts
have interpreted the term “business establishment” in the
“broadest sense reasonably possible,” see Burks v. Poppy
Constr. Co., 57 Cal. 2d 463, 468 (1962), and hospitals such
as Riverside meet the definition. O’Connor v. Vill. Green
Owners Ass’n, 33 Cal. 3d 790, 796 (1983). Nevertheless, the
California Supreme Court has expressly held that employment
9390 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
discrimination claims are excluded from § 51’s protection.
Alcorn v. Anbro Eng’g, Inc., 2 Cal. 3d 493, 500 (1970); Rojo
v. Kliger, 52 Cal. 3d 65, 77 (1990). The court has explained
this exclusion by noting that the Unruh Act was designed to
prohibit discrimination by business establishments “in the
course of furnishing goods, services, or facilities” to its “cli-
ents, patrons, or customers,” but does not extend to claims for
employment discrimination because other California statutes
are specifically tailored to provide relief for such conduct,
most notably the FEHA, which was passed by the California
Legislature in the very same session as the Unruh Act. Alcorn,
2 Cal. 3d at 500.
Twenty-six years later in Strother v. Southern California
Permanente Medical Group, 79 F.3d 859 (9th Cir. 1996), we
interpreted the scope of liability available under § 51 in light
of Alcorn and subsequent California cases and concluded that
those precedents established the rule that relief under § 51
was available when the plaintiff was in a relationship with the
offending business establishment “similar to that of the cus-
tomer in the customer-proprietor relationship which the Act
and its predecessors have most commonly covered.”5 Id. at
874.
5
In Strother, we acknowledged that California courts have allowed par-
ties who were “not ‘clients, patrons, or customers,’ in the traditional
sense” to bring claims under § 51. Id. at 873. Nevertheless, we determined
that the plaintiffs in each of these cases stood in a position with the defen-
dant similar to that of a customer in the “customer-proprietor relationship”
the Unruh Act was designed to protect. Id. at 873-74 (citing O’Connor, 33
Cal. 3d at 796 (holding that condominium owners could bring § 51 claims
against their condominium owners’ association); Isbister v. Boys’ Club of
Santa Cruz, Inc., 40 Cal. 3d. 72, 81 (1985) (holding that female children
excluded from membership in the Boys’ Club could bring claims against
the organization); Jackson v. Superior Court, 30 Cal. App. 4th 936, 941
(1994) (holding that an African-American investment advisor who accom-
panied two clients into a bank could assert a § 51 claim alleging discrimi-
nation against the bank even though his clients were the actual customers
of the bank); Rotary Club of Duarte v. Bd. of Dirs., 178 Cal. App. 3d
1035, 1059 (1987) (holding that a local chapter of the Rotary Club could
challenge the National Rotary Club’s “male-only” policy under § 51)).
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 9391
2
Applying these precedents, the district court dismissed
Johnson’s § 51 claims against the defendants, reasoning that
his allegations amounted to employment discrimination
claims excluded from the Unruh Act’s protection. One month
later, however, the California Court of Appeal’s decision in
Payne v. Anaheim Memorial Hospital, 130 Cal. App. 4th 729(2005), became final. In that case, the Third Division of the
Court of Appeal held that a physician could assert a § 51
claim against the hospital where he treated patients because
that physician did not have the type of employment relation-
ship with the hospital which foreclosed § 51 relief. Id. at 748-
49. Johnson argues that Payne has changed the applicable
state law and requires us to reverse the district court’s dis-
missal of his claims.
In reviewing the district court’s judgment, we must apply
state law as it is presently defined, even if state law has been
altered subsequent to the district court’s decision. Vandenbark
v. Owens-Illinois Glass Co., 311 U.S. 538, 541 (1941); Nel-
son v. Brunswick Corp., 503 F.2d 376, 381-82 (9th Cir. 1974).
In interpreting state law, we are bound to follow the decisions
of the state’s highest court. Hewitt v. Joyner, 940 F.2d 1561,
1565 (9th Cir. 1991). When the state’s highest court has not
spoken on an issue, we must determine what result the court
would reach if we were standing in its shoes by examining
“state appellate court opinions, statutes and treatises.” Id. In
undertaking this task, “the California Court of Appeal’s
announcement of a rule of law ‘is a datum for ascertaining
state law’ ” which we may not omit unless we are “ ‘con-
vinced by other persuasive data that the highest court of the
state would decide otherwise.’ ” Hangarter v. Provident Life
& Accident Ins. Co., 373 F.3d 998, 1012-13 (9th Cir. 2004)
(quoting Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988))
(internal quotation marks omitted).
Accordingly, we must first determine whether Payne’s
holding applies to the facts of this case. If we answer that
9392 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
question in the affirmative, we must next determine whether
there is any persuasive evidence to suggest that the California
Supreme Court would have decided Payne differently, such
that a contrary result would be warranted here.
3
Several factual distinctions between Johnson’s case and
Payne are readily apparent. First, Johnson’s relationship with
Riverside differed from Payne’s relationship with his hospital
in the material respect that Johnson was compensated while
Payne was not. In finding Payne’s claims against his hospital
cognizable under § 51, the court in Payne explained, “Payne
does not work for the hospital, and has no obligation to treat
his patients there as opposed to any other hospital. Anaheim
Memorial does not compensate Payne for his medical ser-
vices, nor does it exercise any direct control over the manner
in which he practices. Instead, the hospital merely provides a
facility which a qualified physician may access in connection
with providing medical care to his patients.” Payne, 130 Cal.
App. 4th at 748. Riverside, on the other hand, paid Johnson
$250 per month to be on call in its emergency room and also
compensated him for each trauma patient he treated in an
amount not to exceed $10,000 per month.
Second, although Johnson’s professional services agree-
ment referred to him as a “contractor,” Riverside retained
control over all material aspects of his activities at the hospi-
tal. While the parties’ affiliation did not contain every compo-
nent of the traditional employer-employee relationship (most
notably, Riverside was not required to pay Social Security
taxes for Johnson or provide him with retirement benefits),
Riverside determined the shifts Johnson was responsible to
work, the nurses who would be assigned to work with him,
and the credentials it would be necessary for Johnson to dis-
play when inside the hospital. Riverside also required Johnson
to remain a member in good standing on the Medical Staff.
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 9393
[8] Thus, we find Johnson’s relationship with Riverside
distinguishable from the relationship described in Payne.
Indeed, Johnson’s complaint is based solely on allegations of
workplace discrimination, not discrimination in the provision
of “goods, services, or facilities” prohibited by § 51. On the
other hand, we find it quite similar to the relationship we held
insufficient to state a § 51 claim in Strother. In that case we
determined that a physician could not bring a claim under
§ 51 against the medical group in which she was a partner
because her relationship with the group was more akin to that
of an employee than that of a “client, patron, or customer”
§ 51 was designed to protect. Strother, 79 F.3d at 863.
Although the plaintiff asserted that her relationship with the
medical group entitled her to many benefits, such as “the use
of certain medical facilities, medical supplies . . . and other
goods, management courses, and a variety of privileges,
advantages, and services,” we concluded that such benefits
were no different than those that would be received by a phy-
sician employed by the medical group, and thus determined
that regardless of whether the plaintiff was a bona fide partner
of the group or an employee, because her relationship with the
group was analogous to that of an employee, California law
precluded her from seeking relief under § 51. Id. at 874-75.
[9] We continue to follow our decision in Strother and con-
clude that Johnson’s § 51 claims are foreclosed by the fact
that his relationship with Riverside was materially indistin-
guishable from that of an employee. We find nothing in the
California Court of Appeal’s holding in Payne to counsel
against such a decision because the hospital in that case nei-
ther compensated the plaintiff nor controlled the manner of
his practice to the degree Riverside does here. Consequently,
it is unnecessary for us to decide whether the California
Supreme Court would have decided Payne differently. Cali-
fornia law continues to require a plaintiff asserting a claim
under § 51 to demonstrate that his relationship with the
offending organization was “similar to that of the customer in
9394 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
the customer-proprietor relationship.” Id. at 874. Johnson has
made no such demonstration.
B
[10] Johnson has also asserted claims against the defen-
dants under California Civil Code § 51.5. Section 51.5 pro-
vides in relevant part:
No business establishment of any kind whatsoever
shall discriminate against, boycott or blacklist, refuse
to buy from, contract with, sell to, or trade with any
person in this state on account of any characteristics
listed or defined in subdivision (b) . . . of Section 51
....
Cal. Civ. Code § 51.5(a). In Strother we interpreted § 51.5 as
a mere extension of the Unruh Act. 79 F.3d at 875 (citing
Roth v. Rhodes, 25 Cal. App. 4th 530, 537 (1994)). Explain-
ing that § 51.5, like § 51, is aimed only at discrimination in
“relationships similar to the proprietor/customer relationship,”
we held that § 51.5 required the plaintiff to make the same
showing. Id. We see no reason to abandon that determination
here. Thus, we conclude that a plaintiff asserting claims under
§ 51.5 must demonstrate that he stands in a relationship with
the offending business establishment similar to that of a cus-
tomer in a customer-proprietor relationship. As explained
above, Johnson has failed to do so here. Accordingly, we con-
clude that his claims under § 51.5 must meet the same fate as
his claims under § 51.
IV
[11] Finally, we must determine whether the district court
erred in dismissing Johnson’s FEHA claims as barred by the
statute of limitations. Under California law, a plaintiff who
intends to assert a FEHA claim must first file a complaint
with the California DFEH, Cal. Gov’t. Code § 12960, and
JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM 9395
then must file the claims within one year after the DFEH
issues a right-to-sue letter for the defendants listed in the com-
plaint, id. § 12965(b). Johnson received a right-to-sue letter
from the DFEH on September 30, 2002 and timely filed an
action in California state court on September 5, 2003. Never-
theless, he voluntarily dismissed that action on October 16,
2003 and then waited until December 2, 2003, 64 days after
the limitations period expired, to file this action in federal
court. Johnson contends that his timely state court filing satis-
fies the statute of limitations under theories of equitable
estoppel and equitable tolling. We disagree.
Under California law, equitable tolling will be warranted
where the defendants have induced the plaintiff to delay filing
until after the statute of limitations has run. See Mills v. For-
estex Co., 108 Cal. App. 4th 625, 652 (2003) (citation omit-
ted). We discern nothing in the record to suggest that the
defendants’ conduct caused Johnson to voluntarily dismiss his
state court action or wait an additional 47 days before filing
this action in federal court.
[12] In addition, California courts have concluded that
absent express statutory language, a plaintiff’s voluntary dis-
missal will not entitle him to toll the statute of limitations. See
Wood v. Elling Corp., 20 Cal. 3d 353, 359 (1977); Thomas v.
Gilliland, 95 Cal. App. 4th 427, 433 (2002). Thus, Johnson’s
voluntary dismissal of his state court action is not an event to
which equitable tolling applies.6
6
Even if Johnson could demonstrate that he was entitled to equitable
tolling, he would not be entitled to toll the period necessary to render his
FEHA claim timely. The effect of equitable tolling is that “the limitations
period stops running during the tolling event, and begins to run again only
when the tolling event has concluded. As a consequence, the tolled inter-
val . . . is tacked onto the end of the limitations period, thus extending the
deadline for suit by the entire length of time during which the tolling event
previously occurred.” Lantzy v. Centex Homes, 31 Cal. 4th 363, 370-71
(2003) (emphasis omitted).
9396 JOHNSON v. RIVERSIDE HEALTHCARE SYSTEM
V
Based on the foregoing, the district court’s dismissal of
Johnson’s § 1981 hostile work environment claim against
defendants Duncanson and Riverside is REVERSED and
REMANDED. The dismissal of Johnson’s claims under Cali-
fornia Civil Code §§ 51 and 51.5 for failure to state a claim
upon which relief can be granted and the dismissal of his
FEHA claims for failure to comply with the statute of limita-
tions are AFFIRMED. Each party shall bear its own costs on
appeal.
Johnson filed his state action on September 5, 2003, 25 days before the
statute of limitations period expired. He voluntarily dismissed the state
action 41 days later, on October 16, 2003. Consequently, if equitable toll-
ing applied, Johnson would have been entitled to file his claims in federal
court within 41 days of his voluntary dismissal. Johnson delayed filing
until December 2, 2003, however, 47 days after his voluntary dismissal,
and 6 days after the maximum tolling period would have expired.