Judge: Randall J. Sherman, Case: 2021-01178333, Date: 2022-09-02 Tentative Ruling

Defendant Hoag Memorial Hospital Presbyterian’s Demurrer to Plaintiff Leigh Hoerner’s Complaint is overruled as to the 1st and 2nd causes of action, and as to plaintiff’s class allegations, and is sustained with 15 days leave to amend as to the 3rd, 4th and 5th causes of action.  Defendant’s Request for Judicial Notice is granted.

In her 1st cause of action under PAGA, plaintiff alleges a violation of Labor Code §6409.1, that defendant failed to file a report with the DIR after plaintiff missed five days of work as late as July 2020, less than a year before she filed this lawsuit.  (Complaint ¶¶12, 53.)  Thus, the statute of limitations does not apply.  Labor Code §2699.3(b) permits workers to bring PAGA claims based on violations of Labor Code §§6300, et seq.  Workers compensation exclusivity does not apply to a PAGA claim for penalties on behalf of the State rather than claims for damages for injuries.  Labor Code §3600.

Plaintiff’s 2nd cause of action for Fraudulent Concealment of Injury under Labor Code §3602(b)(2) alleges all the elements of such a cause of action, that (1) the employer knew that the plaintiff had suffered a work-related injury, (2) the employer concealed that knowledge from the plaintiff, and (3) the injury was aggravated as a result of such concealment.  Palestini v. General Dynamics Corp. (2002) 99 Cal. App. 4th 80, 90.  Defendant’s factual disputes must be reserved for future determination.

Plaintiff’s 3rd, 4th and 5th causes of action under Bus. & Prof. Code §§17200 et seq. adequately allege reliance for at least the initial injuries allegedly suffered by plaintiff at Hoag’s Orthopedic Institute in November 2017, before she conducted online research and collected data about OxyCide in or around January 2018 (Complaint, ¶¶38-39).  In addition, workers compensation exclusivity would not apply to injunctive relief under Bus. & Prof. Code §§17200 et seq. or the recovery of paid medical expenses.  However, plaintiff already has a case pending against defendant Hoag Memorial Hospital Presbyterian in which she asserts a claim under Bus. & Prof. Code §§17200 et seq. for misrepresenting the alleged safety of OxyCide.  Hoerner vs. Ecolab Inc., OCSC Case No. 2020-01153388, Second Amended Complaint ¶256(d).  Although EcoLab’s demurrer to the 17200 cause of action was sustained with leave to amend, and plaintiff did not amend, that cause of action still stands as against defendant Hoag Memorial Hospital Presbyterian, who did not demur.

Defendant also challenges plaintiff’s class allegations, but all that is normally required for a complaint to survive a demurrer to the propriety of class litigation is that the complaint allege facts that tend to show an ascertainable class of plaintiffs, and questions of law and fact which are common to the class.  Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal. App. 4th 471, 487.  Plaintiff here meets this test.  The Complaint alleges sufficient facts to support a ruling that the class is sufficiently numerous, that plaintiff’s claims are typical of the class, that plaintiff will adequately represent the class’s interests, and that a class action is a superior method for the adjudication of the claims alleged.  The Complaint also sufficiently pleads facts that would support a ruling that common questions of law and fact predominate over individual ones.

A Status Conference is also set for today and will go forward.

Defendant is ordered to give notice of the ruling unless notice is waived.