Judge: Erick L. Larsh, Case: 2022-01277066, Date: 2023-08-03 Tentative Ruling

Defendants’, Kaiser Foundation Hospitals and Kaiser Foundation Healthplan, Inc., Demurrers to the 1st, 4th. 5th and 6th causes of action of the Complaint are OVERRULED on the grounds of failure to state a cause of action and uncertainty.

The 1st cause of action states a claim for Professional Negligence. The facts alleged show that Cox presented herself to Kaiser for medical treatment. Part of her “treatment” included physical touching by Nguyen to parts of her body unrelated to the one she presented. If she received treatment for the part of the body for which she presented, her wrist, it was after she endured unwanted touching. Defendants offer no authority stating they cannot be held liable for a breach of the standard of care as a matter of law.

The 4th cause of action states a claim for sexual harassment by a physician under Civil Code §51.9. Under the statute, the sexual harassment must be either pervasive or severe.

A single act of harassment may be severe enough to state a claim for harassment. [Ellison v. Brady (9th Cir. 1991) 924 F.2nd 872, 878] Under FEHA “the groping of plaintiff by itself constitutes actionable conduct.” [Myers v. Trendwest Resorts (2007) 148 Cal.App.4th 1403, 1419; see also Huges v. Pair (2009) 46 Cal.4th 1035, 1049 [isolated incident may qualify as “severe” when it consists of physical assault or threat thereof, construing Civil Code §51.9]] Whether Kaiser knew Nguyen was going act in the manner he did is not an element of the cause of action.

The 6th cause of action states a claim for negligent infliction of emotional distress. Plaintiff has sufficiently alleged causes of action for negligence and emotional distress. Whatever the claim is called, it is sufficient to allege emotional distress damages.

As to the 8th cause of action for Negligent Hiring, Supervision, and Retention, a “knew or should have known” standard applies to the employer. [See, CACI 426]  Plaintiff has filed to allege facts that Kaiser should have known what Nguyen was going to do in an examination room alone with Cox.  Demurrer as to this cause of action is Sustained and Plaintiff is to file an amended complaint within 10 days.  If the amended complaint is not filed within 10 days, defendants are to answer the remaining causes of action within 15 days.