2018-00230244-CU-PO
Joanne Davis vs. Advanced Pain Diagnostic & Solutions, Inc.
Nature of Proceeding: Hearing on Demurrer to Plaintiff’s Complaint
Filed By: Leonard, Nicholas J.
** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific
causes of action and issue(s) on which oral argument is sought. **
The demurrer of Defendants Kayvan Haddadan, M.D. (Dr. Haddadan) and Advanced Pain Diagnostic & Solutions, Inc. (Advanced Pain) (collectively “Defendants”) is SUSTAINED in part and OVERRULED in part.
Overview
This case encompasses employment disputes and a dispute between a patient and healthcare providers. The plaintiffs are Joanne Davis (Davis), Mariah Florez (Florez) and Mary Tovar (Tovar) (collectively “Plaintiffs”). Davis alleges that Defendants, as well as Co-Defendant Derrick Mullin, R.N. (Mullin), provided her with pain management services. Florez and Tovar allege that Defendants employed them as medical assistants and/or a receptionist, and that Mullin was their coworker and supervisor.
According to Davis, Mullin grabbed her breasts during appointments. She also alleges that Mullin made telephonic and other graphic, unwanted sexual advances. In addition, she alleges that Mullin informed her that he knew where she lived, and that he would withhold her pain medication if she refused to submit to his sexual desires. Due to her financial situation, Davis had limited access to pain management services and feared that if she rejected Mullin, and if he withheld her medication as a result, she could be required to wait several months before receiving pain management at another facility. After Mullin threatened to withhold medication, he told Davis to remove her blouse, and he groped her breasts and genitals.
Davis alleges that at some point she learned about other female patients and employees Mullin had harassed. She also learned that Mullin’s prior employer, non-party Elica Health Centers (Elica), had terminated Mullin for sexual misconduct. Dr. Haddadan was Mullin’s supervisor at Erica, yet he allowed Mullin to work with female patients and staff at Advanced Pain.
Mullin allegedly sexually harassed Tovar as well. Defendants’ female patients informed Tovar of Mullin’s sexual misconduct during appointments, including that Mullin had masturbated in front of a patient. When Tovar complained about Mullin to Advanced Pain’s Human Resources manager, an investigation resulted in Mullin’s termination. However, Advanced Pain became understaffed as a result, Dr. Haddadan blamed Tovar for that, and Tovar was quickly terminated for an ostensible HIPPA violation.
Plaintiffs also allege that Mullin sexually harassed Florez. Florez witnessed an Advanced Pain manager dismiss patients’ complaints about Mullin. When Florez verbally complained to the same manager about Mullin’s misconduct, there was no response except an attempt to demote Florez to Advanced Pain’s call center. Florez later made a written complaint about Mullin. Dr. Haddadan’s response was to abuse and become hostile toward Florez. She was forced to take a sick day due to the stress, and the following day she was terminated.
Plaintiffs have jointly pleaded a cause of action against Advanced Pain for negligent hiring, supervision and training. Davis has pleaded causes of action against Defendants for sexual assault and battery, sexual harassment under CC §§ 51.9 and 52, and violation of the Unruh Act [CC §§ 51 and 52].) Moreover, Tovar and Florez
have jointly pleaded against Advanced Pain causes of action under the FEHA for sex discrimination, sexual harassment, failure to prevent harassment, and retaliation.
Defendants now demur on grounds of misjoinder and failure to state a valid cause of action. Plaintiffs oppose.
Discussion
Misjoinder
Defendants’ demurrers are OVERRULED.
CCP § 378 governs permissive joinder of plaintiffs in a single action. That section provides in relevant part that “[a]ll persons may join in one action as plaintiffs if: (1) They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action[.]” Section 378 also provides that “[i]t is not necessary that each plaintiff be interested as to every cause of action[.]” Defendants argue that Plaintiffs are misjoined because the allegations do not arise out of the same transaction or series of transactions, and because there is no common question of law or fact.
With respect to Advanced Pain, the demurrer for misjoinder must be overruled under Moe v. Anderson (App. 3 Dist. 2012) 207 Cal.App.4th 826. In Moe, the Court of Appeal decided that two patients suing the same doctor for sexual assaults occurring at different times could not join in a single lawsuit against the doctor. (Moe, pp. 827-828, 833-834.) However, the court further held that the patients were properly joined against the doctor’s employer on a theory of negligent hiring and supervision: “Here, [the employer] is alleged to have engaged in a series of transactions, i.e., the negligent hiring and supervision of [the doctor], which exposed plaintiffs to [the doctor’s] predatory conduct.” (Id., p. 836.) Moe is on all fours with Plaintiffs’ first cause of action against Advanced Pain, which is predicated on a theory that Advanced Pain negligently hired, retained and trained Mullin. Advanced Pain’s demurrer is overruled.
In overruling Advanced Pain’s demurrer for misjoinder, the court rejects Defendants’ attempt to distinguish Moe. They argue that Moe is distinguishable because it involved two patients, not a mix of patient and employees as in the case at bench. The distinction is immaterial. All three Plaintiffs in this case claim they suffered harm as a result of Advanced Pain’s negligent hiring, supervision and training of Mullin. Nothing in Moe suggests that the capacity in which each Plaintiff was required to interact with Mullin alters the analysis.
The court likewise rejects Defendants’ suggestion that Plaintiffs must be properly joined against Advanced Pain in each cause of action, as opposed to merely the first cause of action for negligent hiring, supervision and retention. Once two or more plaintiffs properly join against a defendant in a single cause of action, each may then plead other, unrelated causes of action against that defendant. (See CCP § 427.10.)
Dr. Haddadan’s demurrer for misjoinder is also overruled. Although both sides proceed as though the first cause of action is directed at both Defendants, it is only directed at Advanced Pain. The only causes of action directed at Dr. Haddadan are Davis’ third and fourth causes of action for sexual harassment under the Civil Code
and violation of the Unruh Act. Because Davis is the only Plaintiff suing Dr. Haddadan, there is no basis for a demurrer on the ground that multiple Plaintiffs are misjoined against him.
Failure to State a Cause of Action
Plaintiffs’ First Cause of Action for Negligent Hiring, Supervision and Training
Advanced Pain’s demurrer is OVERRULED.
Defendants argue that the allegations cannot be construed to establish that Advanced Pain knew or should have known Mullin presented a particular risk to female patients and employees. The court disagrees. (See Compl., ¶¶ 18, 41 and 42.) Plaintiffs allege that Dr. Haddadan supervised Mullin at Elica, where Mullin was terminated for sexual misconduct in the workplace. Plaintiffs also allege that a manager at Advanced Pain told Tovar that Advanced Pain knew about Mullin’s prior termination. This is enough to overcome the demurrer. Defendants’ reliance on Federico v. Superior Court (App. 3 Dist. 1997) 59 Cal.App.4th 1207, 1214-1216, is misplaced because the employer in that case either did not know about or had no reason to suspect that the assaultive employee had engaged in prior assaults in the workplace.
Davis’ Second Cause of Action for Sexual Assault and Battery
Advanced Pain’s demurrer is SUSTAINED with leave to amend.
The second cause of action advances theories of both vicarious liability for Mullin’s sexual assaults and ratification of the assaults. Under a long line of cases, an employer can only be vicariously liable for employees’ sexual assaults that are “engendered by” or are an “outgrowth” of the employment. (See Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12 Cal.4th 291, 300-301.) Such liability, however, has been limited to sexual assaults by police. (See M.P. v. City of Sacramento (App. 3 Dist. 2009) 177 Cal.App.4th 121, 124, 131-133.) But even if employers other than police agencies could be liable for their employees’ sexual assaults, Mullin’s alleged misconduct cannot be construed as an outgrowth of his duties as a pain management nurse. (See Lisa M., supra, pp. 295, 300-301 [where hospital technician was charged with performing ultrasound examinations of pregnant women by running equipment across patients’ lower abdomens, hospital was not liable for technician’s sexual molestation during an examination].) That Mullin may have been in a position to threaten to withhold Davis’ medication does not alter the outcome, and the second cause of action does not present a viable theory of vicarious liability.
Davis also predicates liability on Advanced Pain’s ratification of Mullin’s misconduct:
As an alternate theory to respondeat superior, an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an
employee’s conduct is generally a factual question. (Emphasis added.)
(C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110-1111.)
Davis contends that Advanced Pain ratified Mullin’s misconduct. (Compl., ¶ 47.) Although Davis specifically alleges that she voiced a complaint at some point, (id., ¶ 17), the allegations do not establish that Advanced Pain failed to investigate or otherwise take responsive action. In fact, it appears that Davis only complained after Tovar filed her own complaint, and that Tovar’s complaint triggered both an investigation and Mullin’s termination from Advanced Pain. (See id., ¶¶ 17, 19, 20 and 28.) Consequently, the allegations do not establish Advance Pain’s ratification of Mullin’s misconduct against Davis.
Because this is Defendants’ first objection to the allegations, the court grants leave to amend.
Davis’ Third Cause of Action for Sexual Harassment [CC §§ 51.9, 52]
Defendants’ demurrers are OVERRULED.
Defendants acknowledge that a defendant can be liable under CC §§ 51.9 and 52 for aiding, inciting or conspiring in harassment. Defendants argue that Davis “has not alleged any such action by Dr. Haddadan and Advanced Pain.” (Moving Memo at 10:2 -3.) But Davis alleges that “Defendants acted with reckless disregard for the rights and safety of DAVIS and other female patients, and with full knowledge of MULLIN’s propensity and patter[n] of engaging in inappropriate conduct, and in furtherance of their own economic best interests, referred and continued to refer female patients, including DAVIS[.]” (Compl., ¶ 59.) Defendants do not explain why these allegations cannot be construed to establish aid or incitement. Consequently, the court rejects their position and overrules the demurrers.
Davis’ Fourth Cause of Action for Violation of the Unruh Act [CC §§ 51, 52]
Defendants’ demurrers are OVERRULED.
Davis appears to contend that Defendants unlawfully denied her full and equal services because of her sex. What she alleges is that Defendants violated the Unruh Act by failing “to provide or apply the same level of scrutiny to nurses to whom the[y] referred DAVIS and other female patients as they did to those to whom they referred male patients.” (Compl., ¶ 69.) Defendants make a cursory argument, without citing any cases, that the allegations are insufficient.
In response, Davis cites two federal cases, Davison v. Santa Barbara High School District (C.D. Cal. 1998) 48 F. Supp. 2d 1225 and Nicole M. v. Martinez Unified School District (N.D. Cal. 1997) 964 F. Supp. 1369. In each case, a court held that failure adequately to address complaints of harassment could state the intentional discrimination needed for an Unruh violation. (Davison [student complaining about other students’ race-based harassment]; Nicole M., pp. 1388-1389 [female student complaining about male students’ sexual harassment and assault.) Defendants’ only reply is that Davis’ allegations are insufficiently specific. That argument lacks merit.
Following Davison and Nicole M., the court overrules Defendants’ demurrers to the fourth cause of action.
Florez’ and Tovar’s Fifth Cause of Action for Sex-Based Discrimination under the FEHA
Advanced Pain’s demurrer is SUSTAINED with leave to amend.
Advanced Pain argues that the allegations do not establish discrimination. Florez and Tovar counter that by alleging that they are female, that they were performing competently, and that Advanced Pain terminated them after they complained about Mullin’s harassment, they have established sex discrimination, including a discriminatory motive. Termination in response to a complaint, however, sounds like retaliation, not discrimination based on sex. Florez and Tovar do not allege, for example, that Advanced Pain has retained male employees making similar complaints, or that Advanced Pain terminated them in order to replace them with male employees.
The demurrer is sustained with leave to amend.
Florez and Tovar’s Sixth Cause of Action for Sexual Harassment under the FEHA
Advanced Pain’s demurrer is OVERRULED.
Under the FEHA, an employer is strictly liable for the harassing actions of its supervisors and agents. [Citations.] An employer, however, “is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action.” [Citation.]
(Chapman v. Enos (2004) 116 Cal.App.4th 920, 928.) Advanced Pain argues that Florez and Tovar have not alleged facts establishing its strict liability for Mullin’s harassment because they have not established that Mullin was a supervisor. Advanced Pain further argues that the allegations do not establish that it knew or should have known about Mullin’s harassment yet failed to take corrective action.
In oppositon, Florez and Tovar point to allegations that Mullin was a supervisor, and they were his direct subordinates. (See Compl., ¶¶ 4, 82.) In Advanced Pain’s view, however, these allegations are insufficient because they do not track the language in Government Code 12926(t), which reads:
“Supervisor” means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
Advanced Pain does not cite any case requiring a plaintiff to allege these terms. In any event, Florez’ and Tovar’s allegations that Mullin was a registered nurse and a supervisor, and that they were technicians and his direct subordinates, are enough to
support a reasonable inference that he was authorized to direct their work as technicians. Consequently, the demurrer is overruled.
The court need not address and does not address the separate question whether the allegations support liability on a theory Mullin was only a coworker.
Florez’ and Tovar’s Seventh Cause of Action for Failure to Prevent Harassment under the FEHA
Advanced Pain’s demurrer is OVERRULED.
First, Advanced Pain makes the derivative argument that, because Florez’ and Tovar’s sixth cause of action for harassment is defective, the theory that Advanced Pain failed to take “all reasonable steps” to prevent such harassment must also fail. (See Gov’t Code § 12940(k).) The court, however, has overruled the demurrer to the sixth cause of action. Hence, Advanced Pain’s derivative argument fails.
In the alternative, Advanced Pain argues that the allegations cannot be construed to establish any unreasonable failure to prevent Mullin’s harassment. Advanced Pain was only required to take reasonable steps to prevent the harassment after it was notified. It argues that, because Florez and Tovar allege that Advanced Pain took action once they filed their official complaints, no failure-to-prevent cause of action is pleaded. The allegations, though, further establish that Florez had previously complained to management verbally and was ignored. (Compl., ¶ 36-37.) The allegations also establish and that management dismissed patient’s complaints about Mullin’s misconduct. (Id., ¶ 36.) These allegations, coupled with Dr. Haddadan’s alleged knowledge about Mullin’s sexual misconduct at Elica, can be construed to establish Advanced Pain’s failure to take all reasonable steps to prevent harassment. The demurrer is overruled.
Florez’ and Tovar’s Eighth Cause of Action for Retaliation under the FEHA
Advanced Pain’s demurrer is OVERRULED.
Advanced Pain argues that both Florez and Tovar concede they were terminated for non-retaliatory reasons. That argument lacks merit. Florez and Tovar both allege that Advanced Pain proffered a non-retaliatory reason for terminating them, but they further allege facts that can be construed to establish each reason as a pretext for retaliation. (See Compl., ¶¶ 29-32, 38.)
In the reply, Advanced Pain suggests that there are insufficient allegations of any causal link between Florez’ and Tovar’s complaints about Mullin and their subsequent terminations. The close temporal proximity between the complaints and the terminations, (see Compl., ¶¶ 29, 37-38), coupled with allegations that the terminations were pretextual and that Dr. Haddadan became abusive to Tovar after she complained, are enough to survive demurrer.
Disposition
Advanced Pain’s demurrers to the second and fifth causes of action on grounds the allegations fail to state facts sufficient to state a valid cause of action are sustained
with leave to amend.
The balance of the demurrers are overruled.
No later than 10/05/18, Plaintiffs may file and serve a first amended complaint (FAC) in an attempt to cure their second and fifth causes of action; response(s) due within 30 days thereafter, 35 days if the FAC is served by mail.
Although not required by any statute or rule of court, Plaintiffs are requested to attach a copy of the instant minute order to the FAC to facilitate the filing of the pleading.
If any defendant intends to demur to the FAC or move to strike, it shall determine if any other defendant who has appeared in this action also intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for the demurrers and motions to strike. Additionally, a copy of the FAC shall be included with the moving papers.
The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.