Judge: Robert S. Draper, Case: 20STCV26437, Date: 2023-03-07 Tentative Ruling

Case Number: 20STCV26437    Hearing Date: March 7, 2023    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendant Pasadena Hospital Association, LTD. d/b/a Huntington Memorial Hospital’s Motion for Summary Judgment is GRANTED as to the Seventh, Eighth, and Ninth Causes of Action.

The remainder of Defendant Pasadena Hospital Association’s Motion for Summary Judgment is DENIED.  

FACTUAL BACKGROUND

This is an action for employment discrimination and retaliation. The Complaint alleges as follows.

Plaintiff David Hickman (“Plaintiff”) was jointly employed as a dialysis registered nurse by Defendants Pasadena Hospital d/b/a Huntington Memorial Hospital (the “Hospital”) and Pasadena Dialysis Center (the “Dialysis Center”). (Compl. ¶¶ 15-18.) Plaintiff is a black man over the age of 40. (Compl. ¶ 19.) Both the Hospital and the Dialysis Center are predominantly female workplaces that employ a disproportionate number of female personnel. (Compl. ¶ 20.)

Throughout his employment, Plaintiff was subjected to unwanted sexual comments, sexual innuendo, and sexual inferences. (Compl. ¶ 21.) In July 2018, Plaintiff was asked to file a fraudulent report containing false statements regarding a black coworker. (Compl. ¶ 22.) After Plaintiff refused to file the fraudulent report, his workplace environment became hostile and demeaning. (Compl. ¶ 23-25.) 

Plaintiff reached out to his supervisor, Lori, about the hostility he faced. (Compl. ¶ 27.) Lori failed to take any action on behalf of the Hospital or the Dialysis Center. (Ibid.) Plaintiff then reached out to other supervisors regarding the same discrimination, but they failed to act on behalf of the Hospital or the Dialysis Center. (Compl. ¶ 28.)

In April 2019, Plaintiff reported an incident of patient rape to his supervisor at the Dialysis Center. (Compl. ¶ 31.) After that report, Plaintiff faced increasing retaliatory discrimination. (Compl. ¶ 32.) When Plaintiff’s supervisors at the Hospital asked for Plaintiff’s information regarding the alleged rape, Plaintiff’s response included details of his former complaints regarding sex and race discrimination. (Compl. ¶ 34.) Plaintiff’s supervisors asked him to remove these details. (Compl. ¶ 35.)

In August 2019, Plaintiff was terminated. (Compl. ¶ 38.) Plaintiff contends that the reasons for his termination were pretextual. (Ibid.)

PROCEDURAL HISTORY

On July 13, 2020, Plaintiff filed the Complaint asserting nine causes of action:

1.    Racial Discrimination Cal. Gov. Code § 12940(A);

2.    Gender Discrimination Cal. Gov. Code § 12940(A);

3.    Whistleblower Retaliation Cal. Labor Code § 1102.5(B);

4.    Retaliation Cal. Gov. Code § 12940(A):

5.    Failure to Prevent Discrimination Cal. Civ. Code § 12940(A):

6.    Failure to Prevent Retaliation Cal. Gov. Code § 12940(A);

7.    Negligent Supervision and Training;

8.    Vicarious Liability Pursuant to Gov. Code § 815.2(A); and,

9.    Negligent Infliction of Emotional Distress.

On September 2, 2020, the Hospital filed an Answer.

On October 30, 2020, the Dialysis Center filed an Answer.

On June 14, 2021, Plaintiff dismissed the Dialysis Center as to all causes of action.

On November 18, 2022, the Hospital filed the instant Motion for Summary Judgment.

On January 18, 2023, Plaintiff filed an Opposition. 

On January 27, 2023, the Hospital untimely filed a Reply.

DISCUSSION

      I.          EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections to the Declaration of Lynette Dahlman:

The objections to paragraphs 3, 4, 5, and 6 are SUSTAINED as to Dahlman’s interpretation of the Agreement only.

The objections to paragraphs 8, 9 and 13 are SUSTAINED.

Plaintiff’s Evidentiary Objection to Exhibit O:

Plaintiff’s Evidentiary Objection to Exhibit O is OVERRULED.

The Hospital’s Evidentiary Objection to the Declaration of David Hickman

The Hospital’s Evidentiary Objection to the Declaration of David Hickman is OVERRULED.

    II.          MOTION FOR SUMMARY JUDGMENT

The Hospital moves for summary judgment, or in the alternative, summary adjudication of each cause of action.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

A.   Employment Relationship

First, the Hospital moves for summary adjudication of the First through Eighth Causes of Action, arguing that Plaintiff cannot sufficiently establish that he was employed by the Hospital; each of these causes of action requires a plaintiff to show that he was employed by the employer defendant. (See Gov. Code § 12940(a); Labor Code § 1102.5(b); Gov. Code § 815.2(a).)

When considering whether an employment relationship exists under FEHA, courts must consider the “totality of circumstances” reflecting on the nature of the relationship of the parties, with an emphasis upon the extent to which the defendant controls the plaintiff’s performance of employment duties. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 125.)

Factors that the court may consider include the nature of compensation, who owns the equipment necessary to performance of the job, the location where the work is performed, whether the defendant has a duty to train the plaintiff, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, and the extent of defendant’s discretion to determine the amount of compensation of the employee. (Ibid.)

Here, the Hospital notes that the Dialysis Services Agreement (“DSA”) by which the Hospital contracted with the Dialysis Center explicitly provides that the Dialysis Center is an “independent contractor and, as such, shall not be considered, construed or deemed an officer, employee, agent, partner, joint venturer or principal of Hospital.” (UMF No. 5.) Additionally, the Hospital notes that Plaintiff never entered into an employment agreement with the Hospital; was never promised employment by the Hospital; never submitted an employment application or IRS Form W-4 to the Hospital; was never paid any wages by the Hospital; and that the Hospital did not exercise any control over Plaintiff regarding his hours worked. (UMF Nos. 10-14.)

Additionally, the Hospital notes that in his deposition, Plaintiff states that he was employed by the Dialysis Center rather than the Hospital. (UMF No. 15.)

The Hospital has met their initial burden of demonstrating the absence of any triable issue of material fact demonstrating an employment relationship between Plaintiff and the Hospital. Accordingly, the burden now shifts to Plaintiff to demonstrate the existence of such triable issue of material fact.

Plaintiff contends that many of the factors evincing an employment relationship are present in the relationship between Plaintiff and the Hospital.

Plaintiff notes that he worked at the hospital providing healthcare, the Hospital’s usual course of business. (AMF Nos 53-53.) Additionally, Plaintiff notes that while working at the hospital, he was frequently required to wear a gown, mask, gloves, and face shield, all of which the Hospital provided. (AMF nos. 55-59.) Next, Plaintiff contends that the Hospital provided Plaintiff with a security and identification card, which were necessary for him to enter and exit the building. (AMF Nos. 60-63.) Finally, Plaintiff contends that the Hospital directed Plaintiff to answer to the Hospital’s nurses on staff when providing care, and that Plaintiff was required to follow the Hospital’s practices and protocol when working at the hospital. (AMF Nos 64-65.) Accordingly, Plaintiff argues, the Hospital had almost complete operational control of Plaintiff’s work while Plaintiff was employed there.

To support this position, Plaintiff cites Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168. In Kowalski, plaintiff was directly employed by C. Norman Peterson company (“Peterson”), who contracted with Defendant Shell Oil Company (“Shell”) to perform maintenance work at Shell’s refinery. While working at the Shell facility, plaintiff injured his hand. Plaintiff filed suit against Shell; Shell contended that plaintiff was a special employee, and as such, his claim was precluded by workers’ compensation exclusivity.

At trial, the jury found in Kowalski’s favor, finding that he was not Shell’s special employee, and therefore his claim was not precluded. The trial court granted Shell’s motion for a judgment notwithstanding the verdict on the ground that plaintiff was Shell’s special employee.

The Kowalski court reversed, finding:

[T]he uncontradicted evidence shows that Shell did not exercise any control over [plaintiff’s] duties. He was at all times under the direct supervision of Peterson’s carpenter foreman. Shell’s carpenter foreman, the person most likely to have the authority to direct the details of [plaintiff’s] work, testified that he had no such right, had never supervised [plaintiff], and did not know of any Shell employee who did. Shell’s carpenter foreman and the manager of its safety department, as well as Peterson’s carpenter foreman, testified that Shell’s involvement with Peterson’s carpentry crew was limited to the giving of instructions as to the size and locations of scaffolds needed by Shell. (Kowalski at p. 817.)

Additionally, as to the contract between Shell and Peterson which explicitly stated that Peterson employees were special employees of Shell, the Court noted that “[a]lthough the terms of a contract may specify that a special employer retains the right to control the details of an individual’s work or purports to establish the employment relationship, the terminology used in an agreement is not conclusive. . . even in the absence of fraud or mistake. [Citations.]” (Kowalski at pp. 675-76.)

Here, unlike in Kowalski, Plaintiff has presented evidence that Hospital employees oversaw Plaintiff’s work; that Plaintiff was required to abide by the Hospital’s policies and practices; that Plaintiff used the Hospital’s equipment to fulfill his duties; and that the Hospital maintained some form of operational control over Plaintiff’s duties while he was employed there.

Moreover, as the Court noted in Kowalski, the nature of the working relationship between the plaintiff and defendant dictates the employment relationship rather than the language of the employment contract.

Accordingly, Plaintiff has met his burden of demonstrating the presence of a triable issue of material fact as to his employment relationship with the Hospital, and the Hospital’s Motion for Summary Judgment is DENIED on this ground.

B.   Race and Gender Discrimination, and Failure to Prevent Discrimination

Next, the Hospital contends that Plaintiff cannot show that he was discriminated based upon his race and/or gender while working at the Hospital, or that the Hospital failed to prevent such discrimination.

Government Code §12940 provides that it is unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of race or gender. (Gov. Code § 12940(a).) To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)    

“If the plaintiff establishes a prima facie case, then a presumption of discrimination arises, and the burden shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of material fact the employer took its actions for a legitimate, nondiscriminatory reason.”¿(Scotch v. Art Institute of California-Orange County, Inc.¿(2009) 173 Cal.App.4th 986, 1004).¿“If the employer meets that burden, the presumption of discrimination disappears, and the plaintiff must challenge the employer's proffered reasons as pretexts for discrimination or offer other evidence of a discriminatory motive.”¿(Id.) The employer meets¿its¿burden by presenting evidence which would permit a trier of fact to find it more likely than not that the stated business reasons were the basis for the adverse employment action.¿(Id. at 1006). 

Once the employer meets its burden of showing a legitimate business reason for the adverse employment action, the employee is required to present sufficient evidence to raise a triable issue that would permit the trier of fact to find “the employers’ stated reason is either false or pretextual, or evidence that the employer acted with discriminatory animus, or evidence of each which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.”¿(Faust v. California Portland Cement Co.¿(2007) 150 Cal.App.4th 864, 886).

It is not enough to merely show the decision was wrong or mistaken because the issue is whether discriminatory animus motivated the employer, not whether the decision was proper, and the employee “must demonstrate such weaknesses,¿implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder¿could¿rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.”¿(Hersant¿v. Department of Social Services¿(1997) 57 Cal.App.4th 997, 1005 (emphasis in original)).¿While evidence that the proffered reason is unpersuasive or contrived does not necessarily establish the employee’s explanation of intentional discrimination is correct, evidence of pretext “is significant” and the prima facie case combined with the evidence that the employer’s asserted justification is false can permit the trier of fact to conclude there was unlawful discrimination.¿(Arteaga,¿163 Cal.App.4th 327, 343).¿

1.    Prima Facie Case

First, the Hospital argues that Plaintiff cannot establish a prima facie case of discrimination based on Plaintiff’s race or gender.

As to racial discrimination, Plaintiff notes that he is an African American man working in a field dominated by white women. (OSS No. 30.) Additionally, Plaintiff contends that he was denied work outside of the dialysis unit repeatedly despite being highly qualified and asking for such work. (Ibid.) Plaintiff testified that he would frequently volunteer for extra shifts, but would see those shifts go to white or Asian nurses instead. (Ibid.)

Additionally, Plaintiff notes that he was asked to file a fraudulent report against an African-American nurse, when the details of their encounter did not warrant a written report being filed. (OSS No. 33.) Plaintiff contends that this request was racially motivated.

By providing evidence that Plaintiff was treated differently in his terms of employment due to his race, Plaintiff has established a prima facie case of racial harassment.

As to gender discrimination, Plaintiff again notes that he was a male nurse in a profession dominated by female colleagues. (OSS No. 30.) In addition, Plaintiff contends that he was unable to obtain extra shifts and different assignments because of his gender. (Ibid.)

Next, Plaintiff alleges that he was subjected to repeated sexual comments from female nurses. Plaintiff notes that on one occasion, a female nurse, while growling in a suggestive fashion, stated, “Oh, what I would do to you.” (AMF No. 96.) This comment, among with other comments regarding Plaintiff’s physical appearance, made Plaintiff feel uncomfortable in his work environment. (AMF No. 97-98.)

By providing evidence that Plaintiff was treated differently in the terms of his employment due to his gender, Plaintiff has established a prima facie case of gender harassment.

2.    Legitimate, Non-Discriminatory Reason for Termination

Next, the Hospital contends that there existed a legitimate, non-discriminatory reason for terminating Plaintiff.

The Hospital notes that Plaintiff entered medical orders without consulting a medical doctor, thereby presenting an immediate threat to the life of a patient. (UMF No. 50.) The Hospital contends that its decision to request that Plaintiff be removed from the Hospital was based on this, and was entirely non-discriminatory.

The Hospital has raised a genuine issue of material fact as to whether the Hospital’s reasons for requesting that Plaintiff no longer be placed in the Hospital were nondiscriminatory. Accordingly, the burden now shifts to Plaintiff to demonstrate that the Hospital’s proffered explanation is pretextual.

3.    Pretextual Reason for Termination

Plaintiff contends that the Hospital’s explanation for why Plaintiff was terminated is pretextual because Plaintiff actually did abide by the Hospital’s policy when entering the doctor’s orders for dialysis.

Plaintiff notes that the Policy requires that “Telephone and verbal orders are entered and read back to verify that orders are understood, correct, and complete.” (AMF Nos. 74-75.) Plaintiff contends that this is exactly what he did when entering the doctor’s orders in question. Contrary to the Hospital’s argument, Plaintiff contends he was never instructed to enter dialysis orders only when he was contemporaneously on the phone with the prescribing physician, and therefore he did not breach Hospital policies. (AMF Nos. 79-81.) Additionally, Plaintiff notes that the doctor in question signed the order as entered by Plaintiff.

Finally, Plaintiff argues that the proffered explanation is pretextual, as the Hospital learned of Plaintiff’s “immediate threat to patients’ life” on July 10, 2019, but did not remove Plaintiff from its roster of dialysis nurses until August 15, 2019. (AMF Nos. 85-86.)

The Court finds that Plaintiff has submitted evidence by which a trier of fact could find that the Hospital’s explanation for Plaintiff’s termination was pretextual, and was actually based on his race and/or gender. Accordingly, the Hospital’s Motion for Summary Judgment is DENIED on this ground.

C.   Retaliation, Whistleblower Retaliation, and Failure to Prevent Retaliation

Next, the Hospital moves for Summary Adjudication of Plaintiff’s Third, Fourth, and Sixth causes of action for whistleblower retaliation, retaliation, and failure to prevent retaliation.

Lab. Code, § 1102.5 provides as follows:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

A plaintiff may prove retaliation by “first establish[ing] a prima facie case of retaliation. Once established, the defendant must counter with evidence of a legitimate, nonretaliatory explanation for its acts. If defendant meets this requirement, the plaintiff must then show the explanation is merely a pretext for retaliation.” (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.)

To establish a prima facie case of retaliation under Section 1102.5, a plaintiff must show (1) he or she engaged in a protected activity, (2) the employer subjected him or her to an adverse employment action, and (3) there is a causal link between the two. (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.)

Here, the Hospital argues that Plaintiff is not an employee of the Hospital. As this has been addressed above, the Court need not consider it here.

Additionally, the Hospital contends that the protected activity in question; Plaintiff’s reporting of a patient rape report and refusal to file a false complaint against a co-worker; do not constitute protected activities.

The activity the employee reports or objects to must violate the law. (Mueller v. County of Los Angeles (2009) 176 Cal.App.4^th 809, 821-22.) The illegal conduct need not be by the employer – the statute protects reports by an employee that coworkers or contractors are violating the law. (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4^th 443, 448.)

The Hospital fails to elaborate on how reporting the sexual assault of a patient in the custody and care of the Hospital cannot constitute a protected activity as a matter of law.

Accordingly, the Hospital’s Motion for Summary Judgment is DENIED on this ground.

D.   Negligent Supervision and Training

Next, the Hospital moves for summary judgment of Plaintiff’s Seventh Cause of Action for Negligent Supervision and Training.

Under California law, an employer may be liable to a third person for negligently training, hiring, supervising, or retaining an unfit employee, but only when the employer knows, or has reason to know, that an employee presents a particular risk and the harm posed by that risk materializes.  (Doe v. Capital Cities (1996) 50 Cal. App. 4^th 1038, 1042.) However, liability for negligent hiring and supervision “is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339–1340 [78 Cal.Rptr.2d 525].) This tort applies “in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Ibid.) 

Here, the Hospital contends that Plaintiff has only alleged negligent behavior by supervisor Lori Delaney, who is an employee of the Dialysis Center, not the Hospital. (UMF No. 21.) The Hospital argues that the only behavior attributed to a Hospital employee is to Lynette Dahlman, that the behavior attributed to Dahlman is not negligent, and that Plaintiff has provided no evidence demonstrating that the Hospital was aware of any allegedly negligent propensity on Dahlman’s part.

The Hospital has met its initial burden of demonstrating the nonexistence of any triable issue of material fact showing that the Hospital engaged in negligent supervision, training or hiring. The burden now shifts to Plaintiff to demonstrate the existence of such a triable issue of material fact.

As Plaintiff does not address the Negligent Hiring and Training Cause of Action in his Opposition, he fails to meet this burden.

Accordingly, the Hospital’s Motion for Summary Adjudication of the Seventh Cause of Action for Negligent Training and Hiring is GRANTED. 

E.   Vicarious Liability Pursuant to Gov. Code § 815.2(A)

Next, the Hospital moves for summary adjudication of Plaintiff’s Eighth Cause of Action for Vicarious Liability Pursuant to Gov. Code § 815.2(A).

California Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Govt. Code § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) Government Code section 815.2 provides that a public entity is vicariously liable for the torts of their employees committed within the scope of employment if the employee is liable. (See Govt. Code § 815.2(a); Chambi v. Regents of Univ. of Cal. (2002) 95 Cal.App.4th 822, 827; Hoff, supra, 19 Cal.4th at 932.)

Here, the Hospital argues that it is not a public entity, and therefore section 815.2(A) does not apply. (UMF No. 2.) Plaintiff does not address this issue in his Opposition.

Accordingly, the Hospital’s Motion for Summary Adjudication of Plaintiff’s Eighth Cause of Action for Vicarious Liability Pursuant to Gov. Code 815.2(A) is GRANTED.

F.   Negligent Infliction of Emotional Distress

Next, the Hospital moves for summary adjudication of Plaintiff’s Ninth Cause of Action for Negligent Infliction of Emotional Distress.

Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) The existence of a duty is a question of law. Id. The distinction between the "bystander" and the "direct victim" cases is found in the source of the duty owed by the defendant to the plaintiff. (Id.) "Bystander" claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a "direct victim" arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff. (Id.) Thus, the negligence at issue must be directed primarily at the plaintiff. (Id., at 131.)

Nevertheless, negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred. (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) Damages for severe emotional distress are recoverable in a negligence action when they result from the breach of a duty owed to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two. (Id.) If a cause of action is otherwise established, it is settled that damages are given for mental suffering naturally ensuing from the complained of acts. (Id.)

Here, the Hospital argues that Plaintiff fails to show that the Hospital’s conduct was extreme and outrageous. However, as Plaintiff notes in Opposition, the extreme and outrageous standard is for claims of intentional infliction of emotional distress rather than negligent infliction of emotional distress.

With that said, Plaintiff’s Negligent Infliction of Emotional Distress Cause of Action appears to be redundant with the Negligent Supervising and Training Cause of Action, and as with that cause of action, Plaintiff has failed to demonstrate how the Hospital negligently failed to prepare, train, or supervise its employees, or that the Hospital had knowledge of their predisposition leading to the harm in question.

Accordingly, the Hospital’s Motion for Summary Adjudication of the Ninth Cause of Action for Negligent Infliction of Emotional Distress is GRANTED.

G.  Punitive Damages

Finally, the Hospital moves for summary adjudication on the issue of punitive damages.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice.” A defendant does not need to act intentionally for punitive damages to be found; a showing of malice is sufficient to support a claim for punitive damages. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) “Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code § 3294, subd. (c)(1) [emphasis added].) Malice can be proven through direct evidence or through indirect evidence from which the jury draws inferences. (Ibid.)  

Here, the Hospital argues that Plaintiff cannot show any malicious behavior on the part of a Hospital managing agent.

When the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294(b).) 

In Opposition, Plaintiff notes that California Courts have repeatedly held that FEHA causes of action can support a claim for punitive damages. (See Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215.)

As Plaintiff has successfully stated a claim under FEHA, and as this claim is based on the retaliatory actions the Hospital took after Plaintiff reported the instance of patient sexual assault, a reasonable trier of fact could find that a managing agent of the Hospital ratified malicious conduct by asking that Plaintiff be removed from the Hospital.

Accordingly, the Hospital’s Motion for Summary Adjudication of Plaintiff’s Claim for Punitive Damages is DENIED.

DATED: March 7, 2023

______________________________

Hon. Robert S. Draper

Judge of the Superior Court