Judge: Douglas W. Stern, Case: 22STCV16079, Date: 2022-09-06 Tentative Ruling

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Case Number: 22STCV16079    Hearing Date: September 6, 2022    Dept: 52

Tentative Ruling:

Defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, and Linda Gutierrez’s Demurrer and Motion to Strike

Demurrer

            Defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Kaiser Foundation Hospitals (collectively, “Kaiser”), and Linda Gutierrez generally demur to the second, sixth, and eighth causes of action alleged by plaintiff Jan Harris.

A. 2nd Cause of Action: Fraud – Intentional Misrepresentation

Plaintiff fails to allege sufficient facts for this cause of action.  Intentional misrepresentation requires: “(a) misrepresentation; (b) defendant’s knowledge of the statement’s falsity; (c) intent to defraud (i.e., to induce action in reliance on the misrepresentation); (d) justifiable reliance; and (e) resulting damage.”  (Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, 1184.)

 “[F]raud must be pled specifically.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  “ ‘This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ ”  (Ibid.)  “A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater.  In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ ”  (Ibid.) 

Plaintiff makes conclusory allegations without the required specificity.  The complaint alleges the Kaiser defendants represented “that Plaintiff would be reinstated to her prior position in order to get Plaintiff to agree to resolve her grievance against Defendants with the intent to never reinstate Plaintiff to her prior position.”  (Comp., ¶ 46.)  “Defendants knew these representations were false and made with the intent to deceive and defraud Plaintiff to induce Plaintiff to act in reliance on these representations.”  (¶ 47.)  “In reliance of these representations, [plaintiff] agreed to resolve her grievance against Defendants.”  (¶ 49.)  “Had Plaintiff known the actual facts, she would not have taken such an action.  Plaintiff justifiably relied on Defendants’ misrepresentations regarding reinstatement.”  (¶ 50.)  “As a proximate result of Defendants’ conduct, Plaintiff has been damaged in an amount to be proven at trial.”  (¶ 51.)

These allegations do not include the required details of how, where, and by what means the representation was tendered, and the names of the person who made the representation on behalf of the entity defendants.    

Plaintiff also fails to specifically allege she suffered any damages as a result of her reliance on the misrepresentation.  Plaintiff must “allege [her] damages were caused by the actions [she] took in reliance on the defendant’s misrepresentations.”  (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1064.)  “If the defrauded plaintiff would have suffered the alleged damage even in the absence of the fraudulent inducement, causation cannot be alleged and a fraud cause of action cannot be sustained.”  (Ibid.)

Plaintiff does not allege what damages she suffered.  In reliance on the alleged misrepresentation, she entered an agreement with Kaiser to resolve her grievance.  She had already suffered the damages from her claims underlying that grievance.  Resolving the grievance could not have caused them.  To state a cause of action for fraud, plaintiff must specifically allege facts showing she suffered additional or different damages because she resolved her grievance.

B. 6th Cause of Action: Breach of Contract

            Plaintiff fails to allege sufficient facts for breach of contract.  The elements of this cause of action are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.”  (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)  “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.  [Citation.]  In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms.  This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ ”  (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489, citing Witkin.)

            Plaintiff does not set out the contract’s terms verbatim or attach a copy.  She attempts to plead its legal effect but fails to adequately do so.  The complaint makes two similar allegations about the contract’s legal effect.  First, the complaint alleges, “According to the agreement resolving the grievance, Plaintiff was to be reinstated to her prior full-time status, with her previous Monday through Friday hours and work schedule, as well as reinstatement of her seniority, pension and benefit eligibility.”  (¶ 27.)  Second, it alleges defendants “entered into an express written agreement reinstating Plaintiff to her prior full-time position after she had been wrongfully terminated, as a resolution based upon the grievance Plaintiff had filed.  The agreement also required that Plaintiff be reinstated to her prior full-time status, hours and schedule as well as reinstating her to her prior level of seniority, pension and benefit eligibility.”  (¶ 73.)

When read as a whole, the complaint fails to allege what defendants were required to do under the contract and how they breached the contract.  Kaiser offered plaintiff “a position at a Kaiser Facility in Riverside” but required her “to decide within 24 hours whether to accept” it.  (¶ 32.)  Plaintiff asked for additional time, but defendants refused and “terminated” her.  (¶ 33.)  If the agreement only required Kaiser to reinstate plaintiff to any location and with no specified time limit, plaintiff fails to allege Kaiser breached it.

The complaint shows that, while Kaiser was willing to “reinstate” her on some terms, the parties dispute the timing and the precise job or location of plaintiff’s reinstatement.  Plaintiff did not want to work in Baldwin Park or Riverside (¶¶ 29, 32 [working at Riverside “would result in a 1.5 to 2 hours commute”]), but defendants did not offer her positions in West Los Angeles or Downey (¶ 28).  Plaintiff does not allege the contract required Kaiser to offer her positions in West Los Angeles or Downey.

Plaintiff cannot allege a cause of action for breach of contract without either attaching the contract, pleading its terms verbatim, or pleading that its legal effect imposed specific additional requirements on Kaiser as to the details of her reinstatement.

C. 8th Cause of Action: Intentional Infliction of Emotional Distress

            Plaintiff fails to allege sufficient facts for this cause of action.  Its elements are “(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’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) 

            Plaintiff fails to allege extreme or outrageous conduct.  “An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency.  [Citations.]  Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.  A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.  If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.”  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)

Despite the ill motive alleged, the complaint alleges only personnel management decisions.  Plaintiff alleges her supervisor, Linda Gutierrez, “harangue[d]” her “to push Plaintiff into resignation” (Comp., ¶ 21) and invented phony reasons to discipline her (¶¶ 22-24).  Plaintiff does not allege personally offensive conduct that is beyond the bounds of human decency.  Plaintiff alleges her supervisor was mean to her and got her fired because of her age.  Her remedy is a suit for discrimination.    

D. Disposition

            Defendants Southern California Permanente Medical Group, Kaiser Foundation Healthplan, Kaiser Foundation Hospitals, and Linda Gutierrez’s demurrer to plaintiff’s second, sixth, and eighth causes of action is sustained with 20 days’ leave to amend.

Motion to Strike

Defendants move to strike portions of the complaint regarding punitive damages.  Courts may strike allegations related to punitive damages where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.)

Plaintiff fails to allege sufficient facts to hold the entity defendants liable for punitive damages.  For a corporate employer to be liable for punitive damages, “the advance knowledge and conscious disregard [of an employee’s unfitness], authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”  (Civ. Code, § 3294(b).)

Plaintiff only makes the conclusory allegation that “[a]ll actions of all Employer Defendants were taken by their employees, supervisors, executives, officers, and directors, on behalf of the Employer Defendants, who engaged in, authorized, ratified, and approved of the conduct of their employees, including Gutierrez.”  (Comp., ¶ 11.d.)  Plaintiff fails to allege sufficient facts supporting that conclusion.  Plaintiff’s opposition did not respond to this argument. 

As to defendant Linda Gutierrez, who filed this motion jointly with the entity defendants, the motion is moot because the court has sustained the demurrer to the only cause of action against her, the eighth cause of action for intentional infliction of emotional distress.

Disposition

As to defendant Linda Gutierrez, the motion to strike is moot.  Defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan, and Kaiser Foundation Hospitals’ motion to strike is granted with 20 days’ leave to amend. 

 The court hereby strikes the following portions of plaintiff’s complaint:

1.      Page 11, lines 21-22;

2.      Page 12, lines 19-23;

3.      Page 14, lines 13-14;

4.      Page 15, lines 22-23;

5.      Page 18, lines 27-28;

6.      Paragraph 2 of Plaintiff’s Prayer, page 19, line 4.