Judge: Stephen I. Goorvitch, Case: 22STCV26582, Date: 2023-08-07 Tentative Ruling
Case Number: 22STCV26582 Hearing Date: January 29, 2024 Dept: 39
Veronica Brown v.
CHA Hollywood Medical Center
Case No.
22STCV26582
Demurrer and
Motion to Strike
BACKGROUND
Plaintiff
Veronica Brown (“Plaintiff”) filed this action against CHA Hollywood Medical
Center (“Defendant”), alleging that she experienced discrimination, harassment,
and retaliation as a result of having contracted Covid-19 and having reported certain
violations of law. Plaintiff asserted
the following causes of action in the first amended complaint:
First COA – Disability discrimination under the Fair
Employment and Housing Act (“FEHA”)
Second COA – Failure to prevent discrimination/harassment
Third COA – Retaliation under FEHA
Fourth COA – Violation of the California Family Rights Act
Fifth COA – Harassment under FEHA
Sixth COA – Retaliation under Labor Code section 1102.5
The Court struck a second amended complaint that was filed
without authorization of the Court. Defendant
previously demurred to the first through fifth causes of action and moved to
strike the prayer for punitive damages. The
Court sustained the demurrer and granted the motion to strike. Plaintiff filed a third amended complaint,
and Defendant again demurs to the first through fifth causes of action and
moves to strike the prayer for punitive damages.
PLAINTIFF’S ALLEGATIONS
Plaintiff worked
at St. Vincent’s Hospital as an emergency room admitting representative from
February 3, 2020, to October 9, 2020. (Third
Amended Complaint, ¶¶ 8, 10.) Plaintiff
observed “numerous violations of state and federal laws, including the Health
Information Portability and Accountability Act (HIPPA) violations.” (Id., ¶ 11.)
Plaintiff reported these violations to an employee in human
resources. (Id., ¶ 12.) Plaintiff also expressed concerns about the
Covid-19 safety protocols. (Id., ¶
14.) Subsequently, in late April 2020,
Plaintiff’s probation was extended by 90 days.
(Id., ¶ 16.) Plaintiff alleges
that the reason was because she “had made several complaints about policy
violations, and violations of State and Federal law, leading to Plaintiff being
deemed a ‘troublemaker.’” (Ibid.) Plaintiff was subsequently terminated as a
result of these complaints. (Id., ¶
97.)
On or about
May 29, 2020, Plaintiff contracted Covid-19.
(Id., ¶ 17.) Based upon her symptoms, Plaintiff was required “to
take a length leave of absence from work for two months.” (Id., ¶ 17.)
Plaintiff received a doctor’s note concerning this need for a leave of
absence, which was initially approved and then denied. (Ibid.)
On September 28, 2020, Plaintiff received a “false and fabricated”
warning for violations of the attendance policy regarding dates while she was
on an approved leave of absence. (Id., ¶
27.) Plaintiff complained that she was
on an approved leave of absence for the days in question, and she was
terminated on October 9, 2020. (Id., ¶¶ 28-29.) Plaintiff alleges that her Covid-19 was
severe: “The plaintiff experienced severe difficulty in breathing due to a
severe case of COVID-19, which later developed into long COVID, necessitating
additional accommodation and an extended leave of absence.” (Id., ¶ 36.)
Plaintiff alleges that she suffered from “brain fog.” (Id., ¶ 19.)
Plaintiff alleges that she “continues to suffer from several Covid signs
and symptoms of the Covid 19 infection, including difficulty breathing.” (Id., ¶ 20.)
LEGAL STANDARD
A. Demurrer
A demurrer
for sufficiency tests whether the complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. (Taylor v.
City of Los Angeles Dept. of Water and Power (2006) 144
Cal.App.4th 1216, 1228.) “A demurrer
tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984)
153 Cal.App.3d 902, 905.) “The only
issue involved in a demurrer hearing is whether the complaint, as it stands,
unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147
Cal.App.4th at p. 747.) However, courts
do not accept as true deductions, contentions, or conclusions of law or
fact. (Stonehouse Homes LLC v. City
of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) The general rule is that the plaintiff need
only allege ultimate facts, not evidentiary facts. (Doe v. City of Los
Angeles (2007) 42 Cal.4th 531, 550.) “[D]emurrers for
uncertainty are disfavored, and are granted only if the pleading is so
incomprehensible that a defendant cannot reasonably respond.” (Lickiss v.
Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)
In addition, even where a complaint is in some respects uncertain, courts
strictly construe a demurrer for uncertainty “because ambiguities can be
clarified under modern discovery procedures.”
(Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612,
616.) Demurrers do not lie as to only
parts of causes of action, where some valid claim is alleged but “must dispose
of an entire cause of action to be sustained.” (Poizner v.
Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)
B. Motion to Strike
Courts may, upon a motion, or at any time in
their discretion, and upon terms they deem proper, strike any
irrelevant, false, or improper matter inserted in any pleading. (Code Civ.
Proc., § 436, subd. (a).) Courts may also strike all or any
part of any pleading not drawn or filed in conformity with the laws of this
state, a court rule, or an order of the court. (Id., §
436, subd. (b).) The grounds for a motion
to strike are that the pleading has irrelevant, false or improper
matter, or has not been drawn or filed in conformity with laws. (Id., §
436.) The grounds for moving to strike must appear on the face
of the pleading or by way of judicial notice. (Id.,
§¿437.)
DISCUSSION
A. Demurrer
The Fair
Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and
retaliation based upon a “physical disability,” among other things. (Gov. Code, § 12940, subd. (a).) A physical disability is one that “limits a
major life activity.” (Gov. Code, §
12926, subd. (k)(1)(B)(i).) Temporary
disabilities are covered under FEHA. (See Ross v. County of Riverside
(2019) 36 Cal.App.5th 580, 595.) However,
FEHA does not prohibit discrimination based on “conditions that are mild, which
do not limit a major life activity, as determined on a case-by-case basis . . .
,” if the “conditions have little or no
residual effects, such as the common cold; seasonal or common influenza; minor
cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine
headaches, and minor and non-chronic gastrointestinal disorders.” (Cal. Code Regs., tit. 2, § 11065, subd.
(d)(9)(B).)
Previously, the Court sustained Defendant’s
demurrer because Plaintiff alleged only that she had a case of Covid-19, and that
she required a two-month leave of absence due to her symptoms. (See Court’s Minute Order, dated August 7,
2023.) The Court found that these
allegations were insufficient to demonstrate that Plaintiff suffered from a disability,
i.e., a condition that limited a major life function, either temporarily or
permanently. Plaintiff appears to have corrected
this issue, alleging that her case of Covid-19 was so severe that she had
difficulty breathing and suffered from cognitive impairment. The Court cannot resolve whether Plaintiff’s case
of Covid-19 constitutes a disability; this issue must be resolved on summary judgment
when the Court may consider evidence of how Plaintiff’s illness affected her.
Defendant’s counsel argues: “While
Plaintiff adds more detail regarding her symptoms, the outcome is the same, as
Plaintiff still ‘alleged only that she required a two-month leave of absence
due to her symptoms.’” (See Defendant’s
Reply Brief, p. 2:5-7.) Defendant’s
counsel argues that these additional symptoms do not establish that “something
more than a two-month leave of absence” was necessary. (Id., p. 2:22-3:1.) Defendant’s counsel misconstrues the Court’s
prior order. The Court sustained the
prior demurrer because there were no facts concerning Plaintiff’s
symptoms. Essentially, the first amended
complaint alleged that Plaintiff suffered from a disability merely because she
took a two-month leave of absence, which was not sufficient. Plaintiff has now corrected that issue by
alleging facts about her illness, which, if true, may establish that her case
of Covid-19 was severe enough to constitute a temporary disability. The mere fact that she only took a two-month
leave is not dispositive; the law is clear that a disability may be temporary
in nature.
Defendant argues that Plaintiff did
not know whether she had “long covid.” That
is not dispositive for two reasons.
First, as discussed, a disability may be temporary; Plaintiff is not
required to allege that she suffered from long covid in order to assert FEHA
claims. Second, Plaintiff predicates her
case on a perceived disability, alleging that “Defendants feared Plaintiff
would be diagnosed with long covid, requiring additional leaves of absences in the
future.” (Third Amended Complaint, ¶
19.) Therefore, the Court overrules the
demurrer to the FEHA causes of action.
Similarly, the Court overrules the
demurrer to the fourth cause of action under the California Family Rights Act (“CFRA”). Per CFRA, employees may take up to
twelve weeks of unpaid medical leave for a serious medical condition per
year. (Gov. Code, § 12945.2, subd.
(a).) For purposes of CFRA, a serious
medical condition is “an illness, injury, impairment, or physical or mental
condition that involves either of the following: [¶] Inpatient care in a
hospital, hospice, or residential health care facility. [¶]
Continuing treatment or continuing supervision by a health care
provider.” (Gov. Code, § 12945.2, subd.
(b)(13).) Plaintiff alleges that she
suffered from an illness that “required ongoing medical treatment.” (Third Amended Complaint, ¶ 87.) Again, whether Plaintiff’s illness was severe
enough to form the basis of a CFRA claim is an issue that must be resolved on
summary judgment when the Court may consider the evidence of Plaintiff’s condition.
B. Motion to Strike
Defendant moves to strike the prayer for punitive damages. To state a prima facie claim for
punitive damages, a plaintiff must allege the elements set forth in the
punitive damages statute, Civil Code section 3294. (Coll.
Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must
allege that the Defendants has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “Malice is defined in the statute as conduct
intended by the Defendants to cause injury to the plaintiff or despicable
conduct which is carried on by the Defendants with a willful and conscious
disregard of the rights or safety of others.”
(Coll. Hosp., Inc. v. Superior
Court (1994) 8 Cal.4th 704, 725.)
“The mere allegation an intentional tort was committed is not sufficient
to warrant an award of punitive damages.
Not only must there be circumstances of oppression, fraud or malice, but
facts must be alleged in the pleading to support such a claim.” (Grieves
v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, internal citations and
footnotes omitted.)
“[T]he imposition of punitive
damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of
the fault of others.” (City Products Corp. v. Globe Indemnity Co.
(1979) 88 Cal. App. 3d 31, 36.)
“Corporations are legal entities which do not have minds capable of
recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a
corporation therefore must rest on the malice of the corporation’s
employees. But the law does not impute
every employee’s malice to the corporation.
Instead, the punitive damages statute requires proof of malice among
corporate leaders: the officers,
directors, or managing agents.” (Cruz v. Home Base (2000) 83 Cal. App.
4th 160, 167, internal quotations and citation omitted.)
Plaintiff fails to allege any
specific facts demonstrating that Defendant’s officers, directors, or managing
agents acted with malice such that punitive damages are warranted. (See First
Amended Complaint, ¶ 105.) More
important, a plaintiff must allege more than violations of the Fair
Employment and Housing Act and other claims in order to support a prayer for
punitive damages. (See Scott v.
Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715-716.) Accordingly,
the Court grants the motion to strike.
CONCLUSION AND ORDER
Based upon the foregoing, the Court
orders as follows:
1. The
Court overrules Defendant’s demurrer.
Defendant shall file an answer within twenty (20) days.
2. The
Court grants Defendant’s motion to strike without leave to amend.
3. Defendant’s
counsel shall provide notice and file proof of such with the Court.