Boston v. Penny Lane Centers, Inc.

Filed January 27, 2009, Second District, Division Four

Cite as 2009 SOS 565

Admission of Expert Witnesses’ Testimony in Wrongful Termination Case Upheld

Penny Lane Centers, Inc. is a social services agency that operates group homes for juveniles and offers therapy for children and families, among other services. In August 2004, Penny Lane hired LaToya Boston to conduct individual and group therapy in the day treatment program.

Boston saw clients ranging in age from 12 to 18 years old, many of them had criminal histories and had spent time in juvenile hall or other facilities. Some had histories of moving from group home to group home because of violent behavior.

When Boston was hired, Penny Lane had a staff ratio of one staff member for every three clients. This ratio was maintained at first, but in 2005, the number of juveniles receiving therapy in the day treatment program increased. The new clients were more volatile and required a higher level of care.

Boston told her supervisor, Joy Childress, that the increased number of clients made it difficult for her to do her job and adhere to safety guidelines without additional staff support. Childress told Boston that Penny Lane did not want to spend money on extra staff. Boston was promoted from lead therapist to day treatment coordinator in April 2005.

In May 2005, Lorah Joe replaced Childress as Boston’s supervisor. Between May and July, Boston saw more than 18 juveniles daily in day treatment, instead of her original client load of two to three. Penny Lane did not increase the number of staff to accommodate the increased client load, despite Boston’s insistence that she needed more support due to safety concerns.

The increase in clients was accompanied by an increase in incidents, such as fights. Because of this, Boston often found it impossible to conduct group therapy sessions, as she had to devote most of the therapy time to “de-escalating and trying to control [crises].” When Boston raised the issue with Joe, she told her to “get over it and stop whining.”

On July 11, 2005, a fight broke out between clients in Boston’s group therapy. The only other staff member in the room at the time was not qualified to intervene in the altercation. Boston fell to the floor with the two clients who were fighting; she was then run over by the other clients as they “stampede[d]” out the door.

Boston suffered a back injury as a result of the incident. She reported the incident to Joe, who told her to “toughen up.” Jerardo Majewsky, the manager in charge of quality improvement, conducted an investigation of the incident and prepared a report. Majewsky concluded in the report, “‘that Boston made every attempt to de-escalate the situation to the best of her ability but due to not having enough staff to do a proper restraint, Boston ended up needing medical attention.’”

Boston sent a letter to Joe around July 19, 2005, regarding her concern that the work environment had become unsafe. In the letter, Boston stated, “‘I understand that there are budget issues, however, my work environment is no longer safe.’” Boston received no response to her letter.

Boston’s employment was terminated on August 19, 2005. Penny Lane asserted Boston’s termination was due to poor performance. The company cited three grounds, as follows:

• that Boston allowed her therapist intern certificate to lapse


• she failed to submit necessary documentation for her patients


• she violated safety rules by arriving at work at 4:00 a.m. one morning

Boston believed these reasons were “pretextual”, particularly since on the same day she was terminated, Joe told Boston she was tired of her complaining.

Boston filed a complaint naming Penny Lane and Joe as defendants with the following charges:

• violation of Labor Code sections 6310-6312


• “tortious’ termination in violation of public policy


• defamation of character


• discrimination based on disability


• harassment based on disability

After a jury trial, a special verdict was returned finding that Boston had been wrongfully terminated in violation of public policy. The jury awarded Boston $500,000 in compensatory damages and $200,000 in punitive damages.

Penny Lane moved for judgment notwithstanding the verdict, or alternatively, a new trial. In support of both motions, Penny Lane contended Boston had an exclusive administrative remedy under Health and Safety Code section 1596.882, which she failed to pursue. In addition, in support of its motion for new trial, Penny Lane also contended that the trial court committed prejudicial error by allowing Boston’s expert witnesses to testify.

Penny Lane filed for an appeal on two grounds:

• that Boston’s claim is barred by her failure to exhaust the administrative remedy set forth in Health and Safety Code section 1596.882


• that the trial court committed “reversible error” by allowing Boston’s expert witnesses to testify at trial

The trial court denied Penny Lane’s motions and entered judgment for Boston.

During review, the Second district court of appeal held that there is no statutory prohibition against continued creation of expert reports and writings after specified date for mutual exchange. The appeals court therefore concluded that the trial court acted within its discretion by admitting the testimony of Boston’s expert witnesses.

Further, the Second District court of appeal concluded that Boston did not bring her claim under Health and Safety Code sections 1596.881 and 1596.882, and therefore is not limited to the administrative remedy set forth in section 1596.882. The appeals court therefore affirmed the judgment.