Judge: Cherol J. Nellon, Case: 21STCV44389, Date: 2024-02-26 Tentative Ruling

Case Number: 21STCV44389    Hearing Date: February 26, 2024    Dept: 14

Villela v. White Medical Center

Case Background

 

Plaintiff alleges that she was raped by one of the doctors at the hospital where she worked. She further alleges that when she reported the assault, she was transferred and her hours were cut, while nothing at all happened to the doctor.

 

On December 14, 2023 Plaintiff filed her First Amended Complaint (“FAC”) for (1) Sexual Harassment, (2) Assault, (3) Battery, (4) Gender Discrimination, (5) Disability Discrimination, (6) Failure to Provide Reasonable Accommodation, (7) Failure to Engage in a Timely Good Faith Interactive Process, (8) Retaliation, (9) Failure to Prevent, and (10) Intentional Infliction of Emotional Distress (“IIED”) against Defendants White Memorial Medical Center (“White Memorial”), Adventist Health California Medical Group, Inc., Adventist Health Care Network, Inc., Adventist Health White Memorial (“Adventist”), Salman Khan (“Khan”), Salman Khan, a Medical Corporation, Top Physicians, Inc. (“Top”), Salman Khan dba Primary Care Solutions, and DOES 1-100.

 

On January 18, 2024, Defendants Khan, Top, Salman Khan, a Medical Corporation, and Salman Khan dba Primary Care Solutions filed their joint Answer.

 

Jury Trial is currently set for August 12, 2024.

 

(1)       Demurrer

 

            Defendant White Memorial now demurs to the first, second, third, fourth, and tenth causes of action in the FAC, on the grounds that the FAC does not contain sufficient facts to support those claims.

 

Decision

 

            Defendant’s Request for Judicial Notice is GRANTED.

 

            The demurrer is OVERRULED. Defendant White Memorial is to Answer within 10 days.

 

First Cause of Action: Sexual Harassment

 

            The elements of a FEHA harassment claim are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome harassment; (3) the harassment complained of was based on his protected characteristics; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment and (5) respondeat superior. See Fisher v. San Pedro Penninsula Hospital (1989) 214 Cal.App.3d 590, 608.

 

            Defendant White Memorial argues that it cannot be liable on this claim because the perpetrator is Defendant Khan, and Defendant Khan is not an employee, agent, or alter ego of White Memorial. There are two problems with this argument. First, Government Code § 12940(j)(1) expressly provides that an employer “may also be responsible for the acts of nonemployees… if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”

 

To its credit, Defendant White Memorial expressly concedes the point and cites relevant case law. (Opening Memorandum p 10:18-27). They then attempt to distinguish that authority by arguing that Plaintiff has failed to plead sufficient facts to establish White Memorial’s state of knowledge about Defendant Khan. However, Plaintiff is only obliged to plead the ultimate fact of White Memorial’s knowledge; the evidentiary facts which show that knowledge need not be included. C.W. Johnson & Sons, Inc. v. Carpenter (2020) 53 Cal.App.5th 165, 169.

 

            Second, Defendant White Memorial’s argument that Defendant Khan is not its employee rests entirely on the premise that White Memorial is not legally permitted to employ Defendant Khan. But as Plaintiff points out, employee status is a factual question, not a legal one. The court cannot assume that a fact does not exist simply because Defendant would be subject to other, unrelated legal penalties if it did exist.

 

            Since Plaintiff’s cause of action against Defendant White Memorial survives demurrer on at least one theory, the court need not address the remaining arguments at this time.

 

Second and Third Causes of Action: Assault and Battery

 

            Defendant White Memorial challenges these claims on the same basis as above – that Defendant Khan was not its employee. For the reasons given above, that challenge meets with the same result here as it did above.

 

Fourth Cause of Action: Gender Discrimination

 

            To plead a case for discrimination under FEHA, Plaintiff must allege (1) her membership in a protected class, (2) her qualifications for the job she sought or competent performance in the job she held, (3) that she suffered an adverse employment action, and (4) that some other circumstance suggests a discriminatory motive for that action. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355.

 

            In this instance, Defendant White Memorial challenges only the fourth element. However, Plaintiff has pled that Defendant White Memorial knew that Defendant Khan was abusive to female employees (FAC ¶¶ 22-33) and nevertheless both avoided imposing discipline on Defendant Khan (FAC ¶¶ 32-33, 65) and discouraged Plaintiff from reporting his abuse of her in particular (FAC ¶¶ 62-64, 66). That is sufficient to show a facial connection between the adverse action and Plaintiff’s gender.

 

Tenth Cause of Action: IIED

 

            “The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct.” KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028. “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.

 

            Defendant White Memorial’s argument here is based on Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, which they suggest stands for the proposition that personnel management decisions cannot be “outrageous” as a matter of law. But that is not what Vasquez holds. Vasquez holds that an IIED claim arising out of a common law wrongful termination is covered by workers’ compensation exclusivity. Id. at 832.

 

            This rule does not apply to IIED claims that arise out of FEHA discrimination or harassment. See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 892; see also Light v. California Department of Parks and Recreation (2017) 14 Cal.App.5th 75, 97-101 (discussing cases). This case arises from both.

 

Conclusion

 

            Plaintiff has properly pled viable theories for Sexual Harassment, Assault, Battery, Gender Discrimination, and IIED. Therefore, the demurrer to those claims is OVERRULED. Defendant White Memorial is to Answer within 10 days.

 

(2)       Motion to Strike

 

            Defendant White Memorial now moves this court for an order striking the allegations that Defendant Khan is an employee, agent, or alter ego of White Memorial.

 

Decision

 

            The motion is DENIED.

 

            Counsel are ORDERED to draft, sign, and file a stipulation reserving any alter ego issues until after trial on substantive liability. That stipulation is to be filed within 10 days.

 

Discussion

 

            This motion is made as a sort of alternative – if this court finds on the demurrer that Plaintiff has properly pled Defendant Khan’s status in any of these categories, the court is nevertheless invited to strike any which do not apply. As noted above, there is a factual question as to whether Defendant Khan is an employee of White Memorial. Agency likewise is presents fundamentally factual questions which it is not appropriate to decide at the pleading stage. However, given the court’s citation to Leek v. Cooper (2011) 194 Cal.App.4th 399 and Defense’s discussion of that case in its memorandum, a brief discussion of alter ego may be helpful to both parties.

 

            Alter ego is not a form of vicarious liability; it is a procedural device for adding an additional person to a judgment. See Toho–Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1106. The court is empowered to do this when the technically proper defendant is serving merely as a shield for the “real” defendant. See Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 508-514. Because it is a procedural device rather than a substantive theory, alter ego may be asserted in a conclusory fashion in the complaint (see Los Angeles Cemetery Asso. v. Superior Court of Los Angeles County (1968) 268 Cal.App. 2d 492, 494) or it may be resolved at trial even if not pled (see Hennessey's Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal.App.3d 1351, 1358).

 

            The scenario faced by the court in Leek was that a defendant had moved for summary judgment on the grounds that the other defendant was plaintiff’s actual employer. Leek, supra, 194 Cal.App.4th at 407. The plaintiffs’ opposition argued alter ego, despite the fact that their complaint did not plead alter ego. Id. at 415. The panel held that plaintiffs could not dodge summary judgment in this manner. Id. at 416. However, they also acknowledged that the defendant might still be pulled back into the case on a post-judgment alter ego proceeding, despite the previous entry of summary judgment in his favor. Id. at 417-418.

 

            Given these realities, the court and counsel’s approach to alter ego issues must be determined by practical considerations. It does the court no good to strike alter ego allegations when they may simply return later. It does Defense counsel no good to repeatedly challenge the allegations in motion practice. And it does Plaintiff’s counsel no good to spring alter ego on their opponent in response to a summary judgment motion. The best way to address alter ego is after all substantive issues have been tried to a conclusion.

 

Conclusion

 

            The existence of an employer-employee or an agent-principal relationship is a factual question which is better resolved by discovery and evidence than by pleadings challenges. While alter ego likewise presents factual questions, it is procedurally unique in ways that make it impossible to finally resolve prior to trial. The best approach is to reserve the issue for after all substantive matters have been tried. Therefore, the motion is DENIED. Counsel are ORDERED to draft, sign, and file a stipulation reserving any alter ego issues until after trial on substantive liability. That stipulation is to be filed within 10 days.