Pang v. Beverly Hospital, Inc.

Facts

The Moore-Brown-Roberti Family Rights Act (CalFRA) (Gov. Code, §§ 12945.1, 12945.2) “grants employees the right to take up to 12 weeks of unpaid leave each year if needed due to the birth of a child, the employee’s inability to work because of illness and, as relevant here, ‘to care for a parent or a spouse who has a serious health condition.’” (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 992, quoting Gov. Code, § 12945.2, subd. (c)(3)(B).) An employee who takes such leave “has the right to return to the same or a comparable position without loss of seniority or benefits.” (Id. at p. 993, citing Gov. Code, § 12945.2, subds. (f), (g).)

Marjorie Pang worked as a physical therapist for Beverly Hospital, Inc. (Pang, supra, 79 Cal.App.4th at p. 988.) Her mother, who lived in New York, suffered from numerous chronic ailments — narcolepsy, cataplexy, high blood pressure, arthritis, circulatory problems, a heart condition, and the lingering effects of an earlier stroke that left her with balance problems — and was “periodically incapacitated by these conditions for more than three days at a time and was under the continuing supervision of a health care provider.” (Id. at p. 990.) In late May 1996, Pang notified the Hospital that she would soon have to go to New York to help her mother move from one home to another; on June 4, 1996, she told the Hospital she needed to leave that day, and the Hospital fired her, claiming she had abandoned her job. (Ibid.)

The reason for the move was that “the encroachments of age and medical problems” had made it “increasingly difficult” for the mother to continue living in her two-story home. (Pang, supra, 79 Cal.App.4th at p. 990.) The mother — then 81 — rented a one-level apartment, put her home up for sale, and hired a moving company. (Id. at pp. 990–991.) On the critical question of the mother’s condition at the time of the move, Pang’s own deposition testimony was decisive: her mother “drove a car, lived by herself, could bathe, use the bathroom, get out of bed, cook and get dressed by herself,” “never hired a nurse to care for her[,] and had never lived in a rest home or other type of health care facility.” (Id. at p. 991.) The mother used a walker and had trouble with the stairs and the yardwork, and “just found the house was getting to be too much for her to handle.” (Ibid.) Pang’s task in New York was concrete: she and the mother’s friend “helped Pang’s mother gather the mother’s belongings for the move,” doing “a lot of cleaning out,” gathering and packing, and directing where the furniture would go; the mother “was able to think coherently and assisted in selecting what to keep and what to discard.” (Ibid.) There was “no exigency” for the timing — when the movers offered June 7, the mother “could have waited until after July 5, but chose not to,” and an offer came in on the house one week after the move. (Id. at pp. 995–996.)

Procedural history

Pang sued the Hospital, pleading three causes of action: violation of CalFRA for taking time off to care for her mother; disability discrimination under the Fair Employment and Housing Act (Gov. Code, § 12940, subd. (a)); and wrongful discharge in violation of public policy. (Pang, supra, 79 Cal.App.4th at pp. 988–989.) In July 1998 Pang moved for summary adjudication of her CalFRA claim, supported by declarations, deposition excerpts, and a separate statement. (Id. at p. 989.) At the hearing, the trial court issued a tentative decision denying the motion for a procedural defect, then “on its own motion, deemed the matter a motion for judgment on the pleadings.” (Ibid., citing Code Civ. Proc., § 438, subd. (b)(2).) The court granted that motion because the purpose of Pang’s leave — “to help her elderly mother move from one home to another — did not qualify as leave to care for a parent under CalFRA.” (Ibid.) Pang dismissed her two remaining causes of action without prejudice, the court entered judgment for the Hospital, and Pang appealed. (Ibid.)

Issue

“The dispositive issue both below and on appeal is whether under the circumstances present here, Pang was caring for her mother under CalFRA when she helped her mother move to a new home.” (Pang, supra, 79 Cal.App.4th at p. 990, fn. 2.) Because no “statute [or] reported decisions ha[d] interpreted what qualifies as ‘care’ under section 12945.2” (id. at p. 995), the appeal squarely presented a question of first impression: what the Legislature meant by leave “to care for” a parent, and whether assisting with a parent’s residential move falls within it.

Holding

Reasoning

1. The statutory and regulatory architecture of “care.” The court grounded its analysis in the text. CalFRA permits leave “to care for a parent … who has a serious health condition” (Gov. Code, § 12945.2, subd. (c)(3)(B)), and defines a “serious health condition” to include one involving “[c]ontinuing treatment or continuing supervision by a health care provider.” (Pang, supra, 79 Cal.App.4th at p. 993, quoting Gov. Code, § 12945.2, subd. (c)(8).) Crucially, the certification an employer may demand must state “that the serious health condition warrants the participation of a family member to provide care during a period of the treatment or supervision of the individual requiring care.” (Ibid., quoting Gov. Code, § 12945.2, subd. (j)(1)(D).) The Commission’s regulation, in turn, provides that “‘[w]arrants the participation of the employee’” “‘includes, but is not limited to, providing psychological comfort, and arranging “third party” care … as well as directly providing, or participating in, the medical care.’” (Id. at pp. 993–994, quoting Cal. Code Regs., tit. 2, § 7297.0, subd. (a)(1)(D)(1).) The court thus framed the inquiry around the statutory tether linking “care” to a “period of … treatment or supervision.”

2. The courts retain ultimate responsibility for construing CalFRA. Before applying the regulations, the court fixed the institutional balance of power. Although the Legislature delegated to the Commission the authority to specify what constitutes a reasonable request for leave, “it did not do so in regard to the other provisions of CalFRA.” (Pang, supra, 79 Cal.App.4th at p. 994.) Accordingly, “while we will accord great weight and respect to the Commission’s regulations that apply to the necessity for leave, along with any applicable federal FMLA regulations that the Commission incorporated by reference, we still retain ultimate responsibility for construing CalFRA.” (Ibid., citing Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10–12.) Reciting the standard canons — give the words their ordinary import, render no language surplusage, harmonize the statute internally and with others, and do not add to clear text (id. at p. 994) — the court signaled it would read the regulation’s open-ended phrasing against the statute’s limiting purpose, not the reverse.

3. Application — packing and moving is not “directly providing, or participating in, the medical care.” On the undisputed (indeed, judicially admitted) facts, the court held the activity fell outside the regulation. “It is not enough that Pang’s mother had a serious health condition.” (Pang, supra, 79 Cal.App.4th at p. 995.) The participation had to be “‘warranted’ during a ‘period of the treatment or supervision,’” and here, “[a]lthough Pang’s mother was under medical supervision for a variety of ailments at the time of her move, none had flared up into one of her periodic episodes of incapacity.” (Id. at pp. 995–996.) Pang “was not there to directly, or even indirectly, provide or participate in medical care”; she “was there to help pack her mother’s belongings and tell the movers where to place her mother’s furniture.” (Id. at p. 996.) Any comfort her presence supplied was “merely a collateral benefit.” (Ibid.)

4. Ejusdem generis cabins the regulations’ “includes, but is not limited to” language. Pang’s strongest textual argument was that the regulations’ illustrative phrasing — “includes, but is not limited to” and “includes situations where, for example” — opened the category to her facts. (Pang, supra, 79 Cal.App.4th at p. 997.) The court rejected the move with a canon: “While the language used is expansive, it is still subject to the rule of ejusdem generis. As such, the specific terms used control the general application of the regulations.” (Ibid., citing County of Yolo v. Los Rios Community College Dist. (1992) 5 Cal.App.4th 1242, 1254.) Because “[t]he CalFRA and FMLA regulations specifically refer to matters involving daily medical and personal care,” “[n]othing in those regulations suggests an interpretation which would include a leave on the basis sought by Pang.” (Ibid.)

5. The federal analogue — Marchisheck and the “change in care” limit. Pang relied heavily on the FMLA regulation recognizing leave to “make arrangements for changes in care, such as transfer to a nursing home.” (Pang, supra, 79 Cal.App.4th at pp. 994, 996, quoting 29 C.F.R. § 825.116(b) (1999).) The court found her reliance “seriously undermined” by Marchisheck v. San Mateo County (9th Cir. 1999) 199 F.3d 1068, where a mother who moved her troubled son abroad to keep him safe — not to obtain treatment — was held not to be “caring for” him, because the regulation “involves some level of participation in ongoing treatment of that condition.” (Pang, supra, at pp. 996–997, quoting Marchisheck, at p. 1076.) So too here: the mother “was not being placed in a nursing home and was not moving as part of a change in her care”; “the move was designed so Pang’s mother could continue in a living situation without care and treatment.” (Id. at p. 997.)

6. Liberal construction has limits; the legislative history confirms them. Finally, Pang invoked section 12993’s command of liberal construction. The court answered that the directive “is tempered by the requirement that the statutes be liberally construed ‘for the accomplishment of the purposes of this part,’” and that “[e]ven a statute meant to be broadly interpreted may not be construed outside the scope of the Legislature’s intent.” (Pang, supra, 79 Cal.App.4th at p. 998.) Reviewing CalFRA’s legislative findings on elder care, the court read the Legislature’s many references to “care” as “aimed at the kinds of hands-on, daily care needed to assist persons struggling with a serious medical or psychological condition — administering various treatments and medications, preparing their meals, tending to their personal hygiene needs, taking them to their health care providers, and supplying the emotional comfort and support often needed.” (Id. at pp. 998–999.) Helping a parent move, “under the circumstances involved in Pang’s action,” was not within that contemplation. (Id. at p. 999.)

Significance

Pang remains the leading California authority on the meaning of leave “to care for” a family member under the Family Rights Act, and it does its work at the threshold rather than the margins. The decision establishes that a qualifying “serious health condition” in the relative is necessary but not sufficient: the employee must additionally show that her participation was “warranted” during “a period of the treatment or supervision” — that is, that she was furnishing care connected to the condition’s treatment or supervision, not merely performing a useful errand that the relative’s health made convenient. (Pang, supra, 79 Cal.App.4th at pp. 995–996.) Two interpretive moves give the case its lasting force. First, it confirms that the courts, not the agency, hold “ultimate responsibility for construing CalFRA,” so that the Commission’s capacious “includes, but is not limited to” formula will be read through the statute’s limiting purpose. (Id. at p. 994.) Second, it imports ejusdem generis as the operative tool for that reading, ensuring that the regulation’s open-ended examples are confined to the genus of “daily medical and personal care.” (Id. at p. 997.) The opinion is also notable for what it disclaims: the court was careful to say it was “not so much defining what qualifies as ‘care’ … as … stating what does not,” limiting its holding “to the narrow class of circumstances raised by Pang’s claim.” (Id. at p. 999, fn. 12.)

Key quotes

“Pang’s participation to provide care for her mother had to be ‘warranted’ during a ‘period of the treatment or supervision . . . .’ … Although Pang’s mother was under medical supervision for a variety of ailments at the time of her move, none had flared up into one of her periodic episodes of incapacity. … While Pang’s presence may have provided her mother some degree of psychological comfort, this was merely a collateral benefit of activities not encompassed by the Commission’s regulations.” (Pang, supra, 79 Cal.App.4th at pp. 995–996.)

“[W]hile we will accord great weight and respect to the Commission’s regulations that apply to the necessity for leave, along with any applicable federal FMLA regulations that the Commission incorporated by reference, we still retain ultimate responsibility for construing CalFRA.” (Pang, supra, 79 Cal.App.4th at p. 994.)

“We do not believe that the caretaking services contemplated by CalFRA include helping a parent move to a new home under the circumstances involved in Pang’s action.” (Pang, supra, 79 Cal.App.4th at p. 999.)

Read the full opinion (Justia, official reporter text) →

Practice pointer

Open questions

The court expressly declined to draw the outer boundary of “care,” cautioning that it was “not so much defining what qualifies as ‘care’ under CalFRA as … stating what does not,” and confining its holding “to the narrow class of circumstances raised by Pang’s claim.” (Pang, supra, 79 Cal.App.4th at p. 999, fn. 12.) That reservation leaves the harder cases unresolved: where a residential move is tied to a genuine “change in care” — the regulation’s nursing-home example — how acute must the precipitating decline be, and how close the treatment nexus, before assistance with the move qualifies? The opinion also assumed, without deciding, that the mother had a qualifying serious health condition (id. at p. 995, fn. 9), so it offers no guidance on how chronic-but-stable conditions punctuated by periodic incapacity should be assessed when leave is requested between episodes. And because Pang dismissed her FEHA disability and public-policy claims to perfect the appeal (id. at p. 989), the decision says nothing about whether the same conduct might implicate other statutory duties — leaving the relationship between CalFRA’s “care” limit and an employer’s independent obligations for another day.