TENTATIVE RULING

Defendant Michael Chang’s Demurrer to Complaint is SUSTAINED with thirty (30) days leave to amend as to the ninth, tenth, and fourteenth causes of action.

Defendant Michael Chang’s Motion to Strike Complaint is GRANTED as to page 4, lines 1 to 2 and line 9; paragraph 21; paragraph 22; page 9, lines 21 to 23; and page 29, lines 22 and 25 and otherwise DENIED as MOOT based on the Court’s ruling on demurrer.

Plaintiff Shahin Ghadir, M.D. may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendants WCE CA Fertility, Inc.; WCE SCRC, LLC; Women’s Care Holdings, Inc.; Women’s Care Enterprises, LLC; BC Partners Advisors L.P.; and Michael Chang to give notice. 

REASONING

Request for Judicial Notice

Defendant Michael Chang (“Defendant”) requests judicial notice of (1) the Senate Rules Committee, Office of Senate Floor Analyses, Analysis of Sen. Bill No. 666 (2013-2014 Reg. Sess.) as amended Sept. 4, 2013; (2) the Legislative Counsel’s Digest for 2015 California Assembly Bill No. 1509, California 2015-2016 Regular Session; and (3) the Legislative Counsel’s Digest for 2023 California Senate Bill No. 497, California 2023-2024 Regular Session. Defendant’s request is GRANTED pursuant to Evidence Code section 452, subdivisions (b) and (c).

Ninth Cause of Action: Whistleblower Retaliation in Violation of Labor Code § 1102.5 and Tenth Cause of Action: Whistleblower Retaliation in Violation of Labor Code § 98.6

In the ninth and tenth causes of action, Plaintiff asserts that he was employed by defendants generally and disclosed what he believed to be instances of noncompliance or violations of statutes and regulations, specifically that the practice was providing insufficient patient safety, failing to meet the requisite level of care for its nursing services, and not adequately maintaining its electronic medical records. (Compl. ¶¶ 122-123, ¶¶ 130-131.) Defendants generally then retaliated against Plaintiff and wrongfully terminated his employment due to this whistleblowing activity and disclosures. (Compl. ¶¶ 124, 132.)

First, Plaintiff has failed to set forth any specific conduct by any specific defendant, as he has simply made allegations of conduct by defendants generally, failing to put the Court and Defendant Michael Chang on notice of the nature of the claims against him. This renders it such that the Court cannot conclude which defendant was Plaintiff’s employer, if any, nor can the Court determine how an alter ego theory of liability is proper against this Defendant when there is no specific conduct alleged as to any specific defendant. Moreover, Labor Code section 98.6 requires complaints of specific labor violations, which is not sufficiently alleged, as Plaintiff does not complain of any specific labor violations, i.e., complaints of improper billing practices is not the same as complaints of unpaid wages. (See Compl. ¶ 44.) Accordingly, Defendant’s demurrer to the ninth and tenth causes of action is SUSTAINED with thirty (30) days leave to amend. 

Fourteenth Cause of Action: Intentional Infliction of Emotional Distress

“The elements of a prima facie case for the tort of intentional infliction of emotional distress 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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Again, Plaintiff has failed to set forth any specific conduct by any specific defendant, as he has simply made allegations of conduct by defendants generally, failing to put the Court and Defendant Michael Chang on notice of the nature of the purported emotional distress conduct for which he may be liable. Insofar as Plaintiff alleges that termination constitutes extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress, there is no basis to conclude that simply terminating employment constitutes extreme and outrageous conduct with the intention of causing emotional distress, as this would allow anyone subject to termination to sue for intentional infliction of emotional distress. Thus, Defendant’s demurrer to the fourteenth cause of action is also SUSTAINED with thirty (30) days leave to amend. 

Motion to Strike

Defendant moves to strike Plaintiff’s allegations that Defendant “has exercised ultimate decision-making control over all of the WCE Defendants” (Compl. ¶ 19), the heading that defendants generally “operate as a single enterprise and employer” (Compl., p. 4, line 9), the allegations supporting that heading (Compl. ¶¶ 21, 22), which alleges that defendants generally may be liable as alter egos of the others and the allegations that Defendant BC Partners has exercised control over the WCE defendants (Compl. ¶ 42). Plaintiff’s allegations of conspiracy or alter ego behavior is conclusory and not sufficiently stated, as, again, Plaintiff’s allegations as to all defendants are conflated, so it is not clear which defendant may be responsible based on what conduct. Further, “[c]ivil conspiracy is not an independent tort. Instead, it is a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211-212, quotation marks omitted.) “The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” (Id. at p. 212.) Plaintiff has not sufficiently alleged any conspiracy by any specific party.

Further, the basis for punitive and exemplary damages and statutory civil penalties is not clear. Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.) There are no specific remaining allegations supporting a finding of oppression, fraud, or malice. As to statutory damages, the basis for statutory civil penalties is not clear.

Accordingly, Defendant’s motion to strike is GRANTED as to page 4, lines 1 to 2 and line 9; paragraph 21; paragraph 22; page 9, lines 21 to 23; and page 29, lines 22 and 25. In all other respects, Defendant’s motion to strike is DENIED as MOOT based on the Court’s ruling on demurrer.