Jane Doe vs. Dignity Health

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING

Defendant Dignity Health’s motion for summary judgment is DENIED.

Defendant’s motion for summary adjudication is DENIED as to:

• Plaintiff’s First cause of action for Sexual Battery;

• Plaintiff’s Fourth cause of action for Violation of Civ. Code §51.9;

• Plaintiff’s Fifth cause of action for Dependent Adult Abuse/Neglect;

• Plaintiff’s Sixth cause of action for Negligence;

• Plaintiff’s claim for attorney’s fees on her Fourth and Fifth causes of action;

• Plaintiff’s claim for enhanced damages on her Fifth cause of action;

• Plaintiff’s claim of punitive damages on her First, Fourth and Fifth causes of action.

Defendant’s motion for summary adjudication of Plaintiff’s Second cause of action for Intentional Infliction of Emotional Distress is unopposed and GRANTED.

Defendant’s motion for summary adjudication of Plaintiff’s Third cause of action for fraud is DENIED as MOOT.

INTRODUCTION

This is an action for personal injuries which Plaintiff alleges she sustained as a result of repeated sexual assaults by Gregory Harms, a male ICU nurse employed by Defendant Hospital, while she was an incapacitated and uncommunicative ICU patient.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

Plaintiff’s Complaint asserts six causes of action against Defendant Dignity Health: Sexual Battery (1st c/a); Intentional Infliction of Emotional Distress (2d c/a); Fraud (3rd c/a); Intentional Infliction of Emotional Distress (4th c/a); Dependent Adult Abuse/Neglect (5th c/a); and Negligence (6th c/a). and that Plaintiff is entitled to attorneys’ fees and punitive damages under Welfare & Institutions Code §15657. Plaintiff alleges that she is entitled to punitive damages on her first through fifth causes of action, and attorney’s fees on her fourth and fifth causes of action.

Defendant Hospital now moves for summary judgment. In the alternative, Defendant moves for summary adjudication of each of Plaintiff’s six causes of action, and as to Plaintiff’s claim for attorney’s fees on her fourth and fifth cause of action, enhanced damages on her fifth cause of action, and her claim for punitive damages.

Summary adjudication as to Plaintiff’s Second cause of action for Intentional Infliction of Emotional Distress is granted, based on Plaintiff’s stated intention to dismiss this cause of action. (See Plaintiff’s MPA ISO Opposition, 5:14-16) Defendant’s challenge to the third cause of action for fraud is moot in light of the Court’s September 20, 2022 Order granting judgment on the pleadings, with leave to amend, as to this cause of action; and Plaintiff’s failure to avail herself of the opportunity to amend.

OVERVIEW OF DEFENDANT’S CHALLENGES TO PLAINITFF’S CLAIMS

Defendant’s challenges to Plaintiff’s remaining causes of action, and to her claims for attorney’s fees, enhanced and punitive damages, are as follows:

First and Fourth causes of action:

Defendant is not vicariously liable for the alleged acts of sexual battery (1st c/a) or sexual harassment under Civ Code §51.9 (4th c/a), as (1) respondeat superior does not apply, because sexual assaults are not committed within the course and scope of employment as a matter of law; and (2) there is no evidence of ratification by a failure to investigate or respond to Plaintiff’s allegations.

First through Sixth causes of action:

Plaintiff’s claims are premised upon the provision of medical Services, and are

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

therefore subject to, and barred by MICRA’s one-year statute of limitations. (Code Civ. Proc., § 340.5.)

Attorney’s fees on the fourth and fifth causes of action:

(1) As to the fourth c/a: Plaintiff claim for attorneys’ fees under Civ. Code §52(b)(2) is predicated on her underlying claim for a violation of Civ. Code §51.9, which fails due to Plaintiff’s inability to demonstrate Defendant’s vicarious liability under theories of either respondeat superior or ratification.

(2) As to the fifth c/a: Plaintiff is not entitled to recover enhanced damages from Defendant under Welf. & Inst. Code §15657, as Plaintiff cannot show, by clear and convincing evidence, that the Hospital’s alleged acts/omissions rose to the level of recklessness, malice, oppression, or fraud.

Punitive damages on all causes of action

Plaintiff cannot meet the standards for an award of punitive damages under Civ. Code §3294 (clear and convincing evidence that Defendant acted with, malice, oppression, or fraud); and cannot meet the standards for an award of punitive damages against a corporate employer under Civil Code §3294(b) (clear and convincing evidence that an officer, director, or managing agent of the defendant had advance knowledge of the unfitness of Harms and employed him with a conscious disregard of the rights or safety of others, or authorized or ratified the wrongful conduct.)

OBJECTIONS TO EVIDENCE

Pursuant to Code of Civil procedure section 437c, subdivision (q), the Court need only rule on the objections to evidence deemed material to its disposition of the motion.

A. Defendant’s Objections

1. Objections to the declaration of Arthur Schorr

Objections Nos. 1, 3, 5, 6: This matter is not material to the disposition of this motion. Objections No. 2 and 4: OVERRULED. This matter constitutes proper

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

and admissible opinion which is supported by foundational facts.

2. Objection to evidence of allegations regarding Harms’ conviction related to Christina Doe

This matter is not material to the disposition of this motion.

3. Objection to evidence of another hospital’s current policy/practice regarding chaperones

OVERRRULED. This matter is relevant to whether sexual exploitation of vulnerable patients by hospital employees is a generally foreseeable risk. Nevertheless, the matter is not material to the disposition of this motion.

B. Plaintiff’s objection and Motion to strike

Plaintiff’s objection and motion to strike Defendant’s Reply to Plaintiff’s Additional Facts and the Declaration of Kristine E. Balogh In Support of Defendant’s Motion For Summary Judgment, or Alternatively Summary Adjudication, is GRANTED. There is no provision in the Code of Civil Procedure or the California Rules of Court that permits a “Reply” separate statement. Nazir v United Airlines (2009) 178 Cal App. 4th 243, 252. New evidence submitted with the reply should only be allowed in the exceptional case, and cannot be considered unless the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material. (Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1098)

FACTUAL BACKGROUND

Plaintiff, a then 41-year-old woman, was a patient of Defendant Hospital from November 20, 2016 to February 7, 2017. At the time of her admission, she was noted to have a “locked” jaw and body, and was unable to move her limbs or torso. On November 27, 2016, Plaintiff was intubated due to respiratory distress and transferred to the ICU department. [UMF 1-3]. Plaintiff remained in the ICU unit for 28 days, until December 24, 2016. While she was in the ICU Plaintiff could only move her thumb and turn her head from side to side; and she was unable to speak due to the tracheotomy tube. [UMF 3, PAMF 47]

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

A. Plaintiff’s report of sexual abuse

Plaintiff was first able to speak on January 19, 2017, after a speech therapist placed a valve device into her tracheotomy tube. She immediately reported to two speech therapists that she had been raped by a male nurse on the nights of December 16, 17 and 18, 2016, between the hours of 1:00 and 2:00 a.m. She described the nurse as Caucasian, 40-something, around 6’1” and 145 pounds, with the name of either “David” or “Guerro.” [UMF 9, 10; PAMF 48, 49]. Per the social worker, speech therapist Kwan reported to the social worker that Plaintiff appeared to be “cognitively intact” during this reporting. [Def. Ex. B, Methodist BS 3587]

One of the speech therapists reported Plaintiff’s allegations to Hospital social worker Stephanie Smith, who then spoke with Plaintiff about her allegations. Plaintiff gave Smith the same details which she had earlier reported to the speech therapists, adding that a charge nurse on duty on the nights of the rapes was named “Lindsay.” [UMF 12]. Smith has testified that Plaintiff gave “very specific” details, that she had no reason to doubt the validity of Plaintiff’s allegations, and that in her conversations with Plaintiff’s providers no one indicated that she might be hallucinating the sexual assaults. [Def. Ex. D, Smith depo., 108: 6-9, 113-114, 203:24-204:3]

Plaintiff was given a psychological examination in regard to her allegations by a Hospital doctor that same day. She reported the same details as previously reported to the speech therapists and Smith regarding the dates and time of the alleged rapes, and the description of the nurse who had allegedly abused her. Her examiner found Plaintiff to be oriented, her thought processes were linear and devoid of psychosis, her insight and judgment appeared fair, and she denied any auditory or visual hallucinations. He concluded that it was “unclear” Plaintiff had any cluster b personality traits. [Def. Ex. B, Methodist BS 016-017]

Smith reported Plaintiff’s allegations internally to the interim ICU Director, Connie Barnes, the 3rd floor manager, the 3rd floor Charge RN, Supervisor Celeste Sweitzer, Plaintiff’s physician, Mark LaBriola, M.D., hospital leadership, and Risk Manager, Erin Weeden. [UMF 14]

B. Hospital’s investigation and response to Plaintiff’s allegations

ICU Director Barnes investigated Plaintiff’s allegations of rape on the same day of her

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

report (January 19, 2017), by checking to see if the hospital employed anyone named “David Guerro”, and whether a nurse named “Lindsay” worked as a charge nurse at the hospital, finding that no one by these names was so employed. [UMF 15] Barnes determined that two male nurses, John Doe and Gregory Harms, were assigned to Plaintiff’s care on the nights of Plaintiff’s alleged rapes. [See UMF 16; PAMF 50]. Plaintiff’s medical records show that Gregory Harms made notations on Plaintiff’s chart on the night of December 18, 2016. [PAMF 50, 51] Barnes has testified that she did not interview John Doe or Gegory Harms. [Plaintiff’s Ex. 7, Barnes depo, 150:2-15] She declares, however, that she spoke with John Doe and Gregory Harms, advised them of the allegations of sexual assault and that they would not be working while an investigation was pending, but that she did not place them on leave. [Barnes decl., ¶5, 7]

Barnes informed Chief Nurse Innes of the results of her investigation, and collaborated with Innes and Risk Manager Weeden in determining that both John Doe and Gregory Harms should be placed on administrative leave pending an investigation. [Pl. Ex. 7, Barnes depo. 76:1-7, 107:3-20] John Doe was placed on leave for approximately three workdays. [Pl. Ex. 11, John Doe depo. 51: 10-20]. Harms has testified that he was never placed on administrative leave while employed by the Hospital, and continued to work there up until March 2017, when he left. [Pl. Ex. 3, Harms depo. 64:18-21; 66:3-6]

Risk Manager Weeden took over the investigation from Barnes, but did not investigate whether Plaintiff’s allegations of rape were true, relying on law enforcement for that determination. Instead, she made a determination of patient safety, concluding that there was no immediate concern for patient safety. [Pl. Ex. 7, Barnes depo. 76:1-7; Pl. Ex. 12, Weeden depo. 93:13-94:17] In a letter to Plaintiff’s family Weeden represented that Barnes had interviewed the two male nurses (which Barnes denies), that the Hospital could not substantiate Plaintiff’s allegations, and that “[n]nothing during her interview caused concern for patient safety.' [PAMF 84, 85, 96]

C. Reports to external agencies

Social worker Smith reported Plaintiff’s rape allegations to Adult Protective Services and to the Sacramento Police Department on January 19, 2017 [UMF 13, 17] In a letter dated January 23, 2017 the Hospital reported Plaintiff’s allegations to CDPH.

///

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

D. Investigation by law enforcement

Sacramento Police Officers Fong and Bean arrived at the Hospital on January 19, 2017 to gather information for detectives to determine if any further investigation was warranted. [PAMF 88] Fong spoke with Plaintiff, who gave the same details she had previously reported, and stated that she could identify the nurse who raped her if she saw him. [Def. Ex. M, 1/19/17 Folsom PD report] Fong found Plaintiff to be believable. [Pl. Ex. 9, Fong depo. 42:10-16; Def. Ex. E Fong depo., 37:16-17]

Bean spoke with Barnes who advised him that no one named “David Guerro” or “Lindsay” was working in the ICU on the nights of the alleged rapes; that Plaintiff would have been heavily sedated while in ICU; that side effects of the sedation medication used were an altered state and hallucinations; and that it is common for ICU patients to develop “ICU dementia”. [PAMF 89; Def. Ex. M, 1/19/17 Folsom PD Report; Def. Ex. E., Fong depo., 66-68; Def. Ex. S, Bean depo., 83:18-21] This information impacted SPD’s investigation, leading the officers to believe that no crime had been committed. [Def. Ex. E, Fong depo. 61:10-62:6] Officer Bean determined that Plaintiff was “likely in an altered mental and physical state at the time she reported the rapes to have occurred.” [PAMF 91].

After Officer Bean submitted his report, Sacramento Police Department classified the matter as an informational report instead of a crime report, and the case was closed [PAMF 93]

Harms was never interviewed by law enforcement and did not provide any written statement to law enforcement. [Pl. Ex 3, Harms depo., 64:2-6]

E. Investigation by CDPH

The Hospital’s January 23, 2017 letter to CDHP reported that the Hospital’s investigation had found the following: (1) there was no ICU nurse by the name of David Guerro or Lindsay; (2) there was a different charge nurse each night of December 16, 17 and 18, 2016; (3) there are two ICU nurses who fit the physical description given by the patient; (4) both nurses were placed on administrative leave pending the results of this investigation; and (5) that the interim director of the ICU interviewed both nurses. The letter further states that the allegations were reported to the Sacramento Police;

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

that Officer Bean interviewed the patient, the interim director of the ICU and the attending intensivist; and that “given his interviews, the officer thought it was not necessary to interview the two male ICU nurses.” [Def. Ex. F, CDHP subpoenaed documents, pp 15-16.]

CDHP closed its investigation on February 15, 2017, concluding that the Department was “unable to substantiate a violation of the regulations”. [Def. Ex. F, CDHP subpoenaed documents, p. 57] There are no facts or evidence presented as to the basis for CDHP’s conclusion.

F. Plaintiff’s own investigation and discovery

Plaintiff was discharged from Dignity Health Methodist Hospital in February 2017. In April 2017, she called the Sacramento Police Department to follow up on her case. The police told her that her case was closed because she did not know the name of the person who raped her and because she was in an ICU psychosis. [PAMF 95]

Plaintiff then conducted her own investigation to find out the identity of the man who raped her. In September 2017, she obtained her medical records from Defendant Hospital and looked up the names of who was assigned to her on the dates of her rapes. After identifying Gregory Harms as one of the nurses, she found a photo of Harms on Facebook which matched the person who raped her. [PAMF 96]

G. Evidence of other sexual assaults of incapacitated patients by Harms

Prior to being hired by Hospital Harms had worked at various facilities, including concurrent employment with the Sacramento County Jail and Facial Cosmetic Surgery Center from 1997 to 2012. In 2011, Harms is alleged to have sexually assaulted Yelena Doe while she was incapacitated following surgery at the Facial Cosmetic Surgery Center. Yelena Doe reported Harms’ sexual assault to the surgery center immediately and to police about a month later. [Pl. response to UMF 7; Pl. Ex. 3, Harms depo, 17:19-20:14; 23:21- 24:3; 27:16-17; Ex. 4, Harms depo, Vol. 3 444:4-455:18].

H. Harms’ employment by Defendant

Harms worked at the Hospital as an ICU nurse from June 22, 2015, to approximately February or March of 2017. In May 2015, Harms submitted to and passed a criminal

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

background check as a condition of his employment at Dignity Health as an ICU nurse at Hospital. On or about June 22, 2015, Harms completed Hospital’s New Employee Orientation on several topics, including its Standard of Conduct Handbook and Sexual Harassment Policy. During the time Harms worked at Hospital, including at the times of Plaintiff’s alleged rapes and resulting investigation, there had been no complaints or reports to Hospital that Harms had engaged in sexual misconduct. [UMFs 5,6,7,8]

LEGAL STANDARDS ON MOTIONS FOR SUMMARY JUDGEMENT / ADJUDICATION

Summary judgment is proper if the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to prevail on a cause of action as a matter of law. (CCP § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) A defendant moving for summary judgment/summary adjudication has the initial burden to show that the plaintiff cannot establish one or more elements of the challenged cause of action or there is a complete defense to that cause of action. (CCP § 437c, subd. (p)(2)) A defendant meets its burden by presenting affirmative evidence that negates an essential element of the plaintiff's claim, or by submitting evidence that demonstrates “the plaintiff does not possess, and cannot reasonably obtain, needed evidence” to prove an essential element of the plaintiff's claim. (Aguilar, at p. 855.)

If the defendant makes a sufficient showing, the burden then shifts to the plaintiff to demonstrate a triable issue of material fact exists. (CCP §437c, subd. (p)(2)) A triable issue of fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 850) If the plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.)

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Civ. Code §3294, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

claim for damages, or an issue of duty. CCP §437c (f)(1).

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at p. 843.) Summary judgment is property granted only if the moving party’s evidence establishes that there is not issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374).

ANALYSIS

A. Triable issue of fact exists as to whether Defendant can be held vicariously liable on Plaintiff’s First and Fourth causes of action based on theories of respondeat superior and/or ratification

1. Respondeat Superior

Defendant asserts that respondeat superior does not apply to Plaintiff’s first and fourth causes of action for sexual battery and violation of Civ. Code §51.9, because the sexual assault that forms the basis of these causes of action was not committed within the course and scope of Harms’ employment, as a matter of law.

A sexual assault is within the scope of employment if the employment predictably creates the risk that employees will commit intentional torts of the type for which liability is sought, and the motivating emotions for the assault were fairly attributable to work related events or conditions. (Samantha B. v Aurora Vista Del Mar, LLC (2022) 77 Cal. App. 5th 85, 107; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299). “The question is not one of statistical frequency, but of a relationship between the nature of the work involved and the type of tort committed. The employment must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought” (Lisa M., supra, 12 Cal.4th at p. 302.)

The Samantha B. court found that sexual exploitation of three psychiatric patients by a mental health worker was a foreseeable risk of the circumstances of the job due to the patients’ vulnerability, the facility’s policy allowing male employees 20 minutes of access to female patients, and inadequate training on worker-patient boundaries. Samantha B., supra, 77 Cal.App.5th at p. 108. The court found that a reasonable person could

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

conclude that the assault in that case was motivated by work related conditions, because the duties of the employee included helping vulnerable psychiatric patients with daily living activities, and the employee was personally involved with the patients over an extended period of time. (Ibid.) The court noted that this “was not a case of a momentary failure in an otherwise sufficient system,” as the employee had preyed upon three different women. (Id. at p. 100.)

The Samantha B. court distinguished Lisa M., in which a technician who sexually assaulted a patient while performing an ultrasound examination was not found to be acting within the course and scope of his employment. (Id. at p. 108.) There, the employee’s interaction with the patient was brief and the employee's duties were technical, leading the court to conclude that the circumstances of employment were highly unlikely to engender a personal relationship that might result in sexual exploitation. (Lisa M., supra, 12 Cal.4th at p. 301-304.)

In this case, as in Samantha B., a reasonable person could find that the risk of a sexual assault of a vulnerable ICU patient was foreseeable; and that the motivating emotions for Harm’s sexual assault were fairly attributable to work related events or conditions, as he was assisting Plaintiff with her basic needs at times over the course of her extended 28 day stay in the ICU, creating the opportunity for a personal relationship to develop. Further evidence of this is found in Plaintiff’s testimony that Harms commented “I would’ve never left you out in the car”, (referring to an event that occurred prior to Plaintiff’s admission). [Pls.

Ex. 5, Jane Doe depo., 106:3-9]. Moreover, it appears to be undisputed that, at the time of the reported rapes, Plaintiff was in a vulnerable position, unable to move in large part and unable to speak, when Harms able to present in her room as a result of his position; as such, the ICU nurse was placed in a unique position of control over Plaintiff. (See Mary M. v. City of Los Angeles, 54 Cal.3d 202, 216-217 [holding that respondeat superior liability could be imposed based on a police officer’s rape of a detained person where it was committed in the course of a series of acts of the agent which were authorized by the principal and where the officer is granted extraordinary power and authority over the citizenry, including the victim].)

As the court found in Samantha B., this is “not a case of a momentary failure in an otherwise sufficient system,” as Harms is alleged to a have raped Plaintiff on the different occasions.

Triable issues of fact therefore exist as to whether Defendant can be held vicariously liable for Harms’ sexual assault of Plaintiff under the doctrine of respondeat superior.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

2. Ratification

An employee may be liable for an employee's act where the employer subsequently ratifies the originally unauthorized tort. Defendant relies on CACI No. 3710 for the facts which Plaintiff must demonstrate in order to establish the Hospital’s ratification of Harms’ conduct: (1) that Plaintiff was sexually assaulted/raped by Harms; (2) the Hospital learned of the sexual assaults/rapes, and all the material facts involved in the unauthorized conduct; and the (3) Hospital approved Harms’ sexual assaults/rapes. Defendant contends that Plaintiff cannot demonstrate the second and third facts, because Plaintiff gave an incorrect name for the nurse who raped her, and did not name Harms; therefore, the Hospital had no knowledge of the alleged sexual assaults by Harms, and could not have approved of his conduct.

The failure to investigate or respond to charges that an employee has committed an intentional tort or the failure to discharge the employee may be evidence of ratification. “Ratification may be inferred from the fact that an employer, after being informed of the employee’s actions, does not fully investigate and fails to repudiate the employee’s conduct by redressing the harm done and punishing or discharging the employee.” (Fisher v San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 621.) Generally, ratification is a question of fact. (Samantha B., supra, at p. 109)

Plaintiff presents evidence that the Hospital did not place Harms on leave, and it appears undisputed that the Hospital did not otherwise subject him to any discipline after Plaintiff reported the rapes. Triable issues of fact exist here as to whether the Hospital conducted a full and thorough investigation, based on evidence that the investigation was limited to checking whether a person named “David Guerro” worked at the hospital; and that neither Harms or his co-worker were interviewed, despite the fact that they were identified as the nurses on duty on the nights of the alleged assaults, and they matched the physical description given by Plaintiff.

To the extent that Defendant is relying on the investigations conducted by law enforcement to show that the Hospital did not have knowledge of the alleged sexual assaults by Harms, there are triable issues of fact as to the adequacy of that investigation based on evidence that it was influenced by the Hospital staff’s comments that Plaintiff had been under sedation, which could cause ICU dementia and hallucinations; and that neither Harms or his coworker were interviewed.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

Triable issues of fact therefore exist as to whether Defendant can be held vicariously liable for Harms’ sexual assault of Plaintiff based on ratification.

B. Plaintiff’s first through sixth causes of action are not barred by MICRA’s one-year statute of limitations. (Code Civ. Proc., § 340.5.)

Defendant contends that all of Plaintiff’ claims are based on professional negligence, because she asserts that Harms’ sexual assaults were committed within the course and scope of his employment, and his employment involved the provision of medical services in a medical setting. Defendant argues that all of Plaintiff’s causes of action are therefore barred under MICRA’s one year statute of limitation, because she discovered the rapes in 2016, but did not file her complaint until January 13, 2021.

The Court does not find Defendant’s argument persuasive. Plaintiff’s first, fourth and fifth causes of action for sexual battery, violation of Civ. Code 51.9, and Dependent Adult neglect/abuse, are all based on sexual assault, not the performance of medical services below the standard of care.

Code of Civil Procedure section 340.16 provides, in relevant part:

(a) In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff’s 18th birthday, the time for commencement of the action shall be the later of the following:

(1) Within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

Samantha B. recognized the distinction between a sexual assault committed within the course and scope of employment, and professional negligence, in holding that MICRA’s statute of limitations does not apply to a claim brought under the Dependent Abuse Act. The same rationale applies to Plaintiff’s other intentional tort causes of action based on the sexual assault. Plaintiff’s negligence cause of action likewise does not sound in

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

professional negligence, as it is based on Defendant’s negligent hiring and supervision of Harms, and lack of policies for male employees, as it relates to the sexual assault.

Plaintiff’s action is brought pursuant to CCP §340.16, which provides a ten-year limitations for sexual assault commencing upon the last period from the last act. Plaintiff’s action was therefore timely filed.

C. Triable issues of fact exist as to whether Plaintiff is entitled to attorney’s fees on her fourth cause of action

Defendant asserts that Plaintiff cannot establish entitlement to attorneys’ fees on her fourth cause of action under Civ. Code §52(b)(2), because she cannot establish Defendant’s vicarious liability for the underlying claim for a violation of Civ. Code §51.9 under theories of respondeat superior or ratification. As discussed above, the court finds that triable issues of fact exist as to whether Plaintiff can demonstrate vicarious liability under theories of respondeat superior and ratification.

D. Triable issues of fact exist as to whether Plaintiff can demonstrate entitlement to attorney’s fees and enhanced damages on her fifth cause of action

1. Triable issues of fact exist as to whether Plaintiff can demonstrate reckless neglect or abuse by clear and convincing evidence

Welf. & Inst. Code §15657 provides for an award of attorneys’ fees and enhanced damages where it is proven by clear and convincing evidence that a defendant is liable for physical abuse or neglect, as defined in the Act; and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse.

Defendant argues that Plaintiff cannot provide the clear and convincing evidence of recklessness, malice, oppression, or fraud necessary to meet the heightened pleading standards of Welf. & Inst. Code §15657. Defendant bases this argument on its contention that the Hospital “did not know, nor could it have reasonably known, information that Harms would commit sexual assaults against a patient.”

Defendant has not met its threshold burden to demonstrate this claim, as the only facts related to this contention which Defendant asserts as undisputed in its Separate Statement are UMF 6 (“In May 2015, Harms submitted to and passed a criminal

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

background check as a condition of his employment as an ICU nurse at Hospital”), and UMF 8 (“During the time Harms worked at Hospital, including at the times of Plaintiff’s alleged rapes and resulting investigation, there had been no complaints or reports to Hospital that Harms had engaged in sexual misconduct”). Neither of these asserted facts conclusively demonstrate that the Hospital could not have reasonably discovered the allegations of sexual abuse made against Harms and reported to police in 2011.

Regardless, the Samantha B. court affirmed an award of exemplary damages under §15657 based on similar facts which it found amounted to “recklessness,” defined as “a deliberate disregard of the high degree of probability that an injury will occur.” The court relied on several factors for this conclusion, including: the vulnerability of female patients to sexual predation by male mental health workers; minimal training and a limited ability to conduct background checks of its unlicensed mental health workers; the facility was understaffed; and the reasonable assumption that defendant was a sophisticated party and knew how to operate in a manner that protects its patients from sexual predation, but adopted a policy that exposed vulnerable female patients to a high degree of risk of sexual predation. (Samantha B., supra, 77 Cal.App.5th at pp. 100, 106.) Specifically, the Court concluded “that male workers were allowed 20 minutes alone with a vulnerable female psychiatric patient in a room secluded from view would by itself support a finding of recklessness.” (Id., at p. 100).

While not all of these factors may be present here, Plaintiff has presented evidence that Plaintiff was particularly vulnerable to sexual predation in her physical state, there was no director of the ICU at the time of the assaults, there was one assistant nurse manager on the night shift responsible for supervising all ICU nurses, and there was no chaperone policy requiring male nurses to have chaperones when attending female patients. [PAMF 47, 64, 67, 69] As such, there are triable issues of fact regarding recklessness.

2. Triable issues of fact exist as to whether Plaintiff can demonstrate ratification of the alleged neglect and abuse by a managing agent, in satisfaction of Civ. Code §3294 (b)

Welf. & Inst. Code §15657(c) requires the standards set forth Civ. Code §3294(b) to be satisfied before punitive damages will be imposed on an employer based upon the acts of an employee. To obtain punitive damages against a corporate employer Civ. Code §3294(b) requires evidence that an officer, director, or managing agent of the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25

corporation the employer “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice”

As discussed above, triable issues of fact exist as to whether Defendant ratified Harm’s wrongful conduct. Triable issues of fact also exist as to whether this ratification was by a managing agent based on evidence that ICU Director Barnes discussed the appropriate response to Plaintiff’s allegations with Risk Manager Weeden and Chief Executive Nurse Innes; yet no interview or investigation of Harms, who was identified as one of Plaintiff’s nurses, was undertaken, and no disciplinary action was taken.

E. Triable issues of fact exist as to whether Plaintiff can demonstrate punitive damages on her first and fourth cause of action

Defendant challenges Plaintiff’s claim for punitive damages on her first and fourth causes of action, asserting that Plaintiff cannot demonstrate, by clear and convincing evidence, that Defendant acted with malice, oppression, or fraud with clear and convincing evidence; that Defendant ratified Harms alleged sexual misconduct; or that Defendant had advanced knowledge that Harms was an unfit employee.

As previously discussed, triable issues of fact exist as to whether Defendant ratified Harms’ conduct by the failure to fully investigate or respond to Plaintiff’s allegations of rape.

CONCLUSION

Based on the foregoing, Defendant’s motion for summary judgment is denied; summary adjudication is granted as to Plaintiff’s second cause of action for intentional infliction of emotional distress; summary adjudication is denied as moot as to the third cause of action as previously dismissed; and summary adjudication is denied as to Plaintiff’s first, fourth, fifth and sixth causes of action, her claim of attorney’s fees on her fourth and fifth causes of action, her claim for enhanced damages on her fifth cause of action her claim, and her claim for punitive damages on her first and fourth causes of action.

Defendant’s counsel shall prepare an order pursuant to Code of Civil Procedure section 437c, subsection (g), and California Rules of Court, rule 3.1312.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2021-00292375-CU-PO-GDS: Jane Doe vs. Dignity Health 01/28/2026 Hearing on Motion of Summary Judgment/Adjudication in Department 25