Gavriiloglou v. Prime Healthcare Mgmt., Inc.

83 Cal.App.5th 595

299 Cal.Rptr.3d 34

Eleni GAVRIILOGLOU, Plaintiff and Appellant,

v.PRIME HEALTHCARE MANAGEMENT, INC. et al., Defendants and Respondents.

E076832

Court of Appeal, Fourth District, Division 2, California.

Filed August 26, 2022

As Modified on Denial of Rehearing September 20, 2022

Certified for Partial Publication.^*

Law Offices of Gavril T. Gabriel and Gavril T. Gabriel, Long Beach, for Plaintiff and Appellant.

Morgan, Lewis & Bockius, Thomas M. Peterson, Christopher J. Banks, San Francisco, Clifford D. Sethness, Los Angeles, and Samson C. Huang, Los Angeles, for Defendants and Respondents.

OPINION

RAMIREZ, P. J.

Eleni Gavriiloglou brought this action against her former employer and its alleged alter egos. She asserted, among other things, (1) individual claims for damages based on Labor Code violations and (2) a representative claim for civil penalties for Labor Code violations under the Private Attorneys General Act ( Lab. Code, § 2698 et seq. ) (PAGA). As Gavriiloglou had signed an arbitration agreement, the trial court compelled her to arbitrate her non-PAGA claims and stayed her PAGA claim while she did. The arbitrator found that the alleged Labor Code violations had not occurred. The trial court then granted judgment on the pleadings against Gavriiloglou on her PAGA claim; it ruled that the arbitrator's findings established that she was not an "aggrieved employee" within the meaning of PAGA, and therefore that she lacked standing to bring a PAGA claim.

Gavriiloglou appeals. She contends that (1) the trial court erred by denying her petition to vacate the arbitration award, and (2) the trial court erred by ruling that the arbitration award barred her PAGA claim.

We will hold that the trial court properly denied the motion to vacate the arbitration award. However, we will also hold that the arbitration did not bar the PAGA claim because Gavriiloglou was acting in different capacities and asserting different rights. Accordingly, we will reverse.

ISTATEMENT OF THE CASE

In her complaint, Gavriiloglou asserted causes of action against Prime Healthcare Management, Inc., Prime Healthcare Management II, Inc., Hospital Business Services, Inc., and Dr. Prem Reddy (collectively Prime):

(1) Under the Labor Code, for:

(a) Failure to provide meal and rest periods ( Lab. Code, § 226.7 );

(b) Failure to pay overtime ( Lab. Code, § 510 );

(c) Failure to provide all wages due at termination ( Lab. Code, § 201 );

(d) Waiting time penalties ( Lab. Code, § 203 );

(e) Failure to produce an employee file ( Lab. Code, § 1198.5 );

(f) Misclassification as exempt ( Lab. Code, § 515 ); (g) Retaliation ( Lab. Code, § 1102.5 ); and

(h) PAGA penalties ( Lab. Code, § 2698 et seq. );

(2) Under the Fair Employment and Housing Act ( Gov. Code, § 12900 et seq. ) (FEHA), for:

(a) Discrimination, harassment, and retaliation; (b) Failure to prevent discrimination, harassment, and retaliation;

(c) Failure to provide reasonable accommodation;

(d) Failure to engage in the good faith interactive process to determine effective reasonable accommodation; and

(e) Wrongful termination in violation of FEHA;

(3) Wrongful termination in violation of public policy; and

(4) Unfair competition ( Bus. & Prof. Code, § 17200 ).

Gavriiloglou had signed an arbitration agreement as a condition of her employment. Thus, Prime filed a motion to compel arbitration of all of her non-PAGA claims and to stay the litigation of her PAGA claim. Over Gavriiloglou's opposition, the trial court granted the motion.

The parties selected an arbitrator jointly. After an evidentiary hearing, the arbitrator issued a final award in the favor of Prime. In it, the arbitrator found that the alleged Labor Code violations did not occur.

Prime then filed a motion for judgment on the pleadings on the PAGA claim. It argued that the arbitrator's ruling against Gavriiloglou on her Labor Code claims established, as a matter of issue preclusion, that she was not an "aggrieved employee" ( Lab. Code, § 2699, subd. (a) ) and therefore she lacked standing to bring a PAGA claim. The trial court granted judgment on the pleadings, without leave to amend. Accordingly, it entered judgment against Gavriiloglou and in favor of Prime.

II^**

Unpublished Text Follows

THE MOTION TO VACATE THE ARBITRATION AWARD

Gavriiloglou contends that the trial court erred by denying her petition to vacate the arbitration award.

A. Additional Factual and Procedural Background.

Gavriiloglou filed a petition to vacate the arbitration award. She argued that:

(1) The arbitrator had failed to rule on her claim of failure to engage in a good-faith interactive process in violation of FEHA; and

(2) The arbitrator failed to allow her to obtain the testimony of Dr. Prem Reddy, either in a deposition or at the hearing.

The trial court denied the motion.

B. Discussion.

"To determine whether an arbitration award should be vacated under Code of Civil Procedure section 1286.2, we review the trial court's decision de novo. [Citation.]" ( Bacall v. Shumway (2021) 61 Cal.App.5th 950, 957.)

1. Failure to decide the good-faith interactive process claim.

First, Gavriiloglou contends that the arbitrator failed to decide her good-faith interactive process claim.

"Arbitrators are required to decide all questions submitted that are ‘necessary’ to determine the controversy. [Citation.] [¶] Failure to do so may be ground to vacate the award ...." (Knight et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 2021 update) ¶ 5:498 at p. 5-559; see also Code Civ. Proc., §§ 1283.4, 1286.2, subd. (a)(5) ; VVA-TWO, LLC v. Impact Development Group, LLC (2020) 48 Cal.App.5th 985, 998.) "The award need not, however, set forth findings of fact or a statement of reasons. The award is valid as long as it serves to settle the entire controversy .... [Citation.]" ( Severtson v. Williams Construction Co. (1985) 173 Cal.App.3d 86, 92.)

"[I]t is presumed that all issues submitted for decision have been passed on and resolved, and the burden of proving otherwise is upon the party challenging the award. [Citations.]" ( Rodrigues v. Keller (1980) 113 Cal.App.3d 838, 842.)

FEHA prohibits an employer from discriminating against or harassing an employee based on, among other protected characteristics, a disability. ( Gov. Code, § 12940, subds. (a), (j).) It requires an employer "to make reasonable accommodation for [a] known ... disability of an ... employee." ( Id. , subd. (m)(1).) It also requires an employer, "in response to a request for reasonable accommodation by an employee ... with a known ... disability," "to engage in a timely, good faith, interactive process with the employee ... to determine effective reasonable accommodations, if any ...." ( Id. , subd. (n).)

Here, the arbitrator noted that Gavriiloglou had alleged FEHA claims, including "failure to engage in the interactive process ...." In a section entitled "Disabilities," she rejected them, in part because she found that "[t]here was no evidence that [Gavriiloglou] requested or needed any workplace accommodations related to her [disability] beyond occasional time off work and the use of the restroom as needed[,] which [Prime] provided."

"Once notified of a disability, the employer's burden is to take positive steps to accommodate the employee's limitations. The employee also retains a duty to cooperate with the employer's effort by explaining his or her disability and qualifications. Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions. [Citation.] If a reasonable accommodation does not work, the employee must notify the employer, who has a duty to provide further accommodation. [Citation.]" ( Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1108, italics added.)

Here, then, the arbitrator's finding that Prime provided all of the accommodations that (as far as the evidence showed) Gavriiloglou requested and needed was dispositive of her good-faith interactive process claim.

Gavriiloglou asserts that "a trier of fact's ruling that an employer reasonabl[y] accommodated an employee is not necessarily dispositive on the question of whether the employer also satisfied its duty to engage in good faith in the interactive process." (Italics added.) In principle, we agree. (See, e.g., Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 425-426 [employer was not liable for failure to provide reasonable accommodation, because parties never reached the stage of deciding which accommodation was required, but it could be liable for failure to engage in interactive process].) On the facts of this case, however, as found by the arbitrator, it was dispositive.

Gavriiloglou also quotes a portion of her post-hearing reply brief discussing the evidence supposedly proving that Prime failed to engage in the interactive process. We accept this as showing that Gavriiloglou did raise her interactive process claim in the arbitration. If only out of an excess of caution, however, we point out that it does not show that there were grounds to vacate the award. "Statements by an attorney, whether made in court or in a brief, are not evidence. [Citations.]" ( Muskan Food & Fuel, Inc. v. City of Fresno (2021) 69 Cal.App.5th 372, 389-390.) And even if they were, a court cannot vacate an arbitration award based on either " ‘the merits of the controversy’ " or " ‘the sufficiency of the evidence.’ " ( Morris v. Zuckerman (1968) 69 Cal.2d 686, 691.)

Thus, the trial court properly refused to vacate the award on the theory that the arbitrator had failed to decide Gavriiloglou's interactive process claim.

2. Inability to call or depose Dr. Prem Reddy.

Second, Gavriiloglou contends that the arbitrator did not allow her to call or to depose Dr. Prem Reddy.

a. Additional factual and procedural background.

In her complaint, Gavriiloglou alleged that her...