Abelardo Gutierrez vs. HOAG Memorial Hospital Presbyterian

discovery responses. (SAXC¶13). They also plead approximately ten (10) named agents may have been involved. (See SAXC¶15.) This does not suffice.

The fraud allegations arise from the lease negotiations. What was said and not said. Cross-Complainants, or their agents, were privy to those communications or lack thereof. As such, they should be in a position to provide the required level of specificity necessary to support the concealment claim and false promise claim. They fail to do so.

To the extent the Motion to Strike punitive damages language is not rendered moot by this ruling, it is GRANTED without leave to amend. Cross-Defendant to give notice and file an answer to the SAXC within 15 days.

102 Abelardo Gutierrez vs. HOAG Memorial Hospital Presbyterian

25-01509741 1. Demurrer to First Amended Complaint 2. Motion to Strike Portions Of First Amended Complaint 3. Case Management Conference

Demurrer

Defendant, Hoag Memorial Hospital Presbyterian (“Defendant”), demurs to the first cause of action for harassment and third cause of action for retaliation of Plaintiff, Hector Abelardo Gutierrez’s First Amended Complaint. The demurrer is OVERRULED.

Timeliness

Plaintiff contends that the demurrer and motion to strike were not timely filed because Defendant’s counsel’s declaration in support of a 30-day extension does not establish a reasonable and good-faith effort to meet and confer.

The Court finds that the scheduling of a telephonic conference and subsequent inability to meet and confer due to Defendant’s counsel’s illness sufficiently shows a good-faith attempt to meet and confer was made and explains the reasons why the parties could not meet and confer such that the demurrer.

First Cause of Action for Harassment in Violation of Harassment in Violation of Government Code section 12940 et seq.

Defendant contends that Plaintiff’s first cause of action for harassment fails because Plaintiff fails to properly allege any actionable harassment directed at him or others based on his protected characteristics. To establish a prima facie case of harassment, Plaintiff must show (1) he belongs to a protected class; (2) he was subject to unwelcome harassment; (3) the harassment was based on his protected classification; (4) the harassment was sufficiently severe or pervasive enough so as to alter the conditions of his employment; and (5) respondeat superior. (Guthrey v. State of Cal. (1998) 63 Cal.App.4th 1108, 1122.)

“To be sufficiently pervasive harassment, the acts complained of cannot be isolated or trivial. Rather there must be a pattern of harassment of a routine or generalized nature.” (Ibid.)

“The working environment must be evaluated in light of the totality of the circumstances: ‘[W]hether an environment is “hostile” or “abusive” can be determined only by looking at the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ [Citation.]” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Objective severity is judged from the perspective of a reasonable person in the plaintiff’s position. (Ibid.)

Government Code section 12940(j)(1) prohibits an employer from harassing an employee on the basis of “race, . . ., color, . . ., physical disability, mental disability, medical condition, . . . sex, gender, . . . .”

The first cause of action alleges that Defendant is required “to refrain from harassing, or creating, or maintaining a hostile work environment against an employee based upon the employee’s disability and/or medical condition, real or perceived, use of medical leave, and engagement in protected activities of reporting hostile working environment, . . . .” (FAC, ¶ 42.) It also alleges that Hoag violated the FEHA by “creating a hostile work environment and harassing Plaintiff because of Plaintiff’s disability and/or medical condition, real or perceived, use of medical leave, engagement in protected activities reporting hostile working environment, and/or some combination of these protected characteristic, . . . .” (FAC, ¶ 44.)

With regard to harassment directed towards Plaintiff himself, the Complaint alleges that in or about September 2023, Plaintiff took a two-week stress leave due to the hostile work environment he was enduring, that this mental health condition impaired Plaintiff’s major life activity of working, and that when he returned in September 2023 from stress leave, he was subjected to “repeated, humiliating comments” from Aaron Gonzalez. (FAC, ¶¶ 23, 28.)

More specifically, Plaintiff alleges that prior to going medical leave in September 2023, “Plaintiff experienced severe episodes of stress and mental health issues as a direct and proximate result of the hostile work environment created by the Employer Defendant’s management. This condition impaired and limited Plaintiff’s ability to perform the major life activity of working and therefore constituted a disability.” (FAC, ¶ 28.)

Plaintiff alleges that Gonzales mocked Plaintiff on at least 20 occasions between September 2023 and May 2024, on the basis of Plaintiff’s actual or perceived disability and medical condition with statements such as ‘How is your anus?’ ‘How is your bonghole?’ and “How is your sphincter?” (FAC, ¶ 28.)

It is alleged that Plaintiff believed “these mocking and offensive comments were motivated by Plaintiff’s disability and medical condition, sex and gender,” as these comments were made to Plaintiff only after he took medical leave, and Plaintiff interpreted these sexualized comments to mean that he was soft and hurt because he took time to attend to his mental health. (FAC, ¶ 28.)

Contrary to Defendant’s assertions, Plaintiff does allege that he belongs to a protected class. And, Plaintiff alleges that Aaron Gonzalez’s mocking statements about Plaintiff’s “anus,” “bonghole,” and “sphincter,” were motivated by Plaintiff’s medical condition, sex and gender because they were made only after Plaintiff exercised his right to take a medical leave due to Plaintiff’s medical condition or disability, and that Plaintiff interpreted these sexualized comments to mean that he was soft and hurt because he took time off to attend to his own mental health.

Based on the foregoing, the FAC contains allegations tying these comments to Plaintiff’s alleged physical and/or mental disability and/or medical condition. The allegations are sufficient to reasonably infer that the alleged mocking comments were based on Plaintiffs’ physical and/or mental disability and/or medical condition, i.e., that Gonzalez mocked Plaintiff because Plaintiff took stress/medical leave.

On demurrer, a complaint must be liberally construed. (Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal. App. 4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal. 4th 962, 966-67.)

Plaintiff’s admissions in responses to requests for admission that his stress leave in September 2023 “had nothing to do” with his “anus,” “bonghole,” and “sphincter,” merely establish that Plaintiff’s stress leave literally did not have anything to do with Plaintiff’s “anus,” “bonghole,” and “sphincter.” These admissions do not establish that the alleged comments were not based on Plaintiff’s physical and/or mental disability and/or medical condition in Plaintiff taking stress/medical leave.

Thus, the FAC sufficiently alleges harassment directed towards Plaintiff was based on a protected class. Although the alleged harassment against others is not based on the same alleged protected characteristics as Plaintiff, i.e., alleged physical and/or mental disability and/or medical condition, at the pleading stage, Plaintiff has sufficiently alleged harassment directed towards himself.

Lastly, the FAC alleges that prior to going on medical leave, Plaintiff experienced severe episodes of stress and mental health issues as a direct and proximate result of the hostile work environment created by Defendant, as set forth above, which impaired his ability to work. (FAC, ¶¶ 28, 35-38.)

“ ‘[H]arassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.’ [Citations.]” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 582.)

Therefore, the FAC alleges that the alleged harassment was sufficiently severe or pervasive so as to alter the conditions of Plaintiff’s employment. Based on allegations in the FAC, the first cause of action sufficiently alleges a claim for harassment. The demurrer to the first cause of action is OVERRULED.

Third Cause of Action for Retaliation in Violation of Labor Code § 1102.5, 1102.6

Defendant contends that Plaintiff’s third cause of action for retaliation under Labor Code sections 1102.5 and 1102.6 fails to state facts sufficient to constitute a cause of action as Plaintiff fails to point to a specific statute, rule, or regulation that may have been violated by the conduct he alleged disclosed, and the FAC fails to sufficiently allege that Plaintiff had reasonable cause to believe that understaffing or alleged excessive force against patients violated a local, state, or federal rule or regulation.

Labor Code section 1102.5 states, in part: (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. (Labor Code § 1102.5(b), emphasis added.)

“A report made by an employee of a government agency to their employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).” (Lab. Code § 1102.5(e).)

To establish a prima facie case of retaliation under Labor Code section 1102.5, plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) a causal link between the two. (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.)

“Section 1102.5 provides whistleblower protections to employees who disclose wrongdoing to authorities . . . . “[S]ection 1102.5 prohibits an employer from retaliating against an employee for sharing information the employee ‘has reasonable cause to believe . . . discloses a violation of state or federal statute’ or of ‘a local, state, or federal rule or regulation’ with a government agency, with a person with authority over the employee, or with another employee who has authority to investigate or correct the violation [Citation.] (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709 (“Lawson”).)

“An employee injured by prohibited retaliation may file a private suit for damages. [Citations.]” (Ibid.)

To come within the provisions of Section 1102.5, the activity disclosed by an employee must violate a federal or state law, rule or regulation. (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 821-822.)

The disclosure protected in Labor Code section 1102.5, “is one that is made ‘to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.’ [Citation.]” (Mize– Kurzman v. Marin Community College District (2012) 202 Cal.App.4th 832, 848, overruled on other grounds in People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719.)

Here, the FAC alleges that from approximately May 2022 through May 2024, Plaintiff made multiple complaints to his supervisors and management, including Aaron Gonzalez, Eric Rodriguez, Matt Sanders, and Corwin Bales, regarding serious violations of law and hospital policies; that Plaintiff reported on at least five to six occasions that security officers were engaging in improper conduct and using excessive force against patients; and that Plaintiff “reasonably believed that the use of excessive force against patients violated the federal law which obligates hospitals,” citing 42 U.S.C. section 290ii. (FAC, ¶¶ 19-20.)

Therefore, the FAC alleges Plaintiff made disclosures to his supervisors and management and cites a specific statute that may have been violated by the conduct that Plaintiff allegedly disclosed. It is not required that a plaintiff expressly state in his disclosures that he believed his employer was violating or not complying with a specific state or federal law. (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592-593 [“Although Ross did not expressly state in his disclosures that he believed the County was violating or not complying with a specific state or federal law, Labor Code section 1102.5, subdivision (b), does not require such an express statement”].)

Labor Code section 1102.5(b), “requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity. [Citation.]” (Id. at p. 593.)

Based on the foregoing, at the pleading stage, Plaintiff alleges sufficient facts supporting whistleblowing as a matter of law. Although Plaintiff’s allegations of chronic short-staffing and unsafe understaffing conditions (FAC, ¶ 22) do not amount to whistleblowing, the FAC alleges facts to support whistleblowing with regards to excessive force against patients.

“[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The demurrer to the third cause of action is OVERRULED.

Motion to Strike

Defendant, Hoag Memorial Hospital Presbyterian (“Defendant” or “Hoag”), moves to strike punitive damages allegations at paragraphs 38, 48, 57, 65, and 86, and the Prayer for Relief at paragraph 6 of Plaintiff’s First Amended Complaint. The Motion to Strike is DENIED.

Timeliness

The motion to strike is timely for the same reasons the demurrer is timely, as set forth above.

Merits

Defendant contends that the FAC fails to allege any ultimate facts that he was subjected to malice, oppression, or fraud, and that Plaintiff fails to identify a sufficiently senior officer, director, or managing agent of Hoag who purportedly engaged in any of the alleged misconduct, which is required to state a claim for punitive damages against a corporate defendant such as Hoag under Civil Code section 3294(b). Defendant also asserts that leave to amend should be denied.

As a threshold matter, Plaintiff correctly notes that the claim for punitive damages in the Prayer for Relief is made in paragraph 5, not paragraph 6.

In order to state a prima facie claim for punitive damages, the complaint must allege facts of defendant’s oppression, fraud, or malice, as stated in Civil Code section 3294. (Civil Code § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

“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(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code § 3294(c)(2).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citations.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

“Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.)

“In addition to the requirement that the operative complaint set forth the elements as stated in section 3294, it must include specific factual allegations showing that the defendant’s conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. [Citation.]” (Today’s IV, Inc. v. Los Angeles Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) “Punitive damages may not be pleaded generally. [Citation.]” (Ibid.)

Conclusory allegations that conduct was oppressive, fraudulent, or malicious are insufficient to support a claim for punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) There must be factual assertions supporting the conclusion that a defendant acted with oppression, fraud, or malice. (Ibid.)

Here, the FAC seeks punitive damages as to each of the four causes of action. (FAC, ¶¶ 48 [first cause of action], 57 [second cause of action], 65 [third cause of action], 86 [fourth cause of action].)

The FAC alleges severe and/or pervasive harassment and a hostile work environment directed at Plaintiff and other co-workers which caused Plaintiff to take a two-week stress leave in September 2023; that in or about September 2023, Plaintiff complained to upper management, including Corwin Bales and Matt Sanders, about the harassment and hostile work environment, and that Defendant’s management escalated the hostility, and failed to prevent the harassment and hostile work environment perpetuated by supervisors Aaron Gonzalez and Eric Rodriguez. (FAC, ¶¶ 23-31.)

It is also alleged that Plaintiff on at least five to six occasions, Plaintiff reported improper conduct and excessive force by security officer against patients, and that “management was dismissive, brushed off the complaints, and failed to conduct any investigation or take remedial action.” (FAC, ¶¶ 19-21.)

The allegations in the FAC include specific factual allegations showing that Defendant’s conduct was oppressive and, therefore, sufficiently allege facts to support a claim for punitive damages.

In addition, the FAC sufficiently alleges that a managing agent authorized and/or ratified oppressive conduct in accordance with Civil Code section 3294(b). (FAC, ¶¶ 29-32, 34.)

“When the defendant is a corporation, ‘[a]n award of punitive damages against a corporation . . . must rest on the malice of the corporation’s employees. [¶] But the law does not impute every employee’s malice to the corporation.’ [Citation.] Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. [Citation.] ‘ “[M]anaging agent” . . . include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decision-making so that their decisions ultimately determine corporate policy.’ [Citation.]” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164.)

“ ‘[C]orporate policy’ is the general principles which guide a corporation, or rules intended to be followed consistently over time in corporate operations. A ‘managing agent’ is one with substantial authority over decisions that set these general principles and rules.” (Cruz v. HomeBase (2000) 83 Cal. App. 4th 160, 167-68.)

Principal liability for punitive damages does not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576-577.)

“[S]upervisors who have broad discretionary powers and exercise substantial discretionary authority in the corporation could be managing agents. Conversely, supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees. In order to demonstrate that an employee is a true managing agent under section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business. (Id. at p. 577.)

For example, where a supervisor was responsible for managing eight stores and at least 65 employees and individual store managers reported to her and she reported to department heads in the corporation’s retain management department, the California Supreme Court found that the supervisor exercised substantial discretionary authority over vital aspects of the defendant’s business that included managing numerous stores on a daily basis and making significant decisions affecting both store and company policy. (Ibid.)

“A company ratifies a managing agent’s decision when it knows about and accepts the decision. [Citations.]” (Tilkey v. Allstate Insurance Co. (2020) 56 Cal.App.5th 521, 554.)

The FAC alleges that Corwin Bales (“Bales”) is Defendant’s managing agent; that Bales is the Manager of Security for Hoag’s entire hospital; that Bales exercised independent judgment in developing and implementing hospital security policies; that Bales exercised control over the entire security department and made significant decisions affecting safety throughout the hospital; and that Bales worked with outside law enforcement and fire agencies in emergencies. (FAC, ¶ 30.)

Plaintiff also alleges that he complained in writing to Bales about harassment and a hostile work environment; that Bales and Hoag’s management responded by escalating hostility rather than investigating or correcting it; that Bales failed to prevent the harassment and hostile work environment; and that Bales approved or ratified Plaintiff’s termination. (FAC, ¶¶ 29, 31-32.)

It is additionally alleged that Defendant’s conduct was “undertaken, authorized, and/or ratified by Defendants’ officers, directors and/or managing agents including Mr. Bales, . . ., who were authorized and empowered to make decisions that reflect and/or create policy for Defendants.” (FAC, ¶ 34.)

At the pleading stage, assuming the truth of the allegations, the allegations are sufficient to show that Bales is a managing agent. It is alleged that Bales developed and implemented hospital security policies and exercised control over the entire security department for Hoag, such that Bales exercised authority over one aspect over the general principles and rules which guide Hoag, i.e., corporate policy.

These allegations are distinguishable from Cruz v. HomeBase (2000) 83 Cal. App. 4th 160, which Defendant contends is directly on point. In Cruz, the Court of Appeal found that a supervisor subordinate to a store manager in a single outlet of a multi-store chain who supervised only a few employees and had authority over only one narrow area of security for the single store’s multifaceted operations was not a managing agent. (Cruz v. HomeBase (2000) 83 Cal. App. 4th 160, 168.)

Here, Bales is alleged to be the Manager of Security for Hoag’s entire hospital and exercised independent judgment in development and implementing hospital security policies, as well as exercised control over the entire security department and made significant decisions affecting safety throughout the hospital.

The Court GRANTS Plaintiff’s request for judicial notice of Plaintiff’s responses to Defendant’s Requests for Admission, Set One. Defendant to file an Answer within 10 days. Plaintiff to give notice.

104 Barkley vs. H- Mart Supermarket

25-01461644 Motion for Leave to File Amended Complaint

Plaintiff seeks an order allowing him to file an amending pleading. While it appears Plaintiff correctly served Defendant with this motion and a “Amendment to the Complaint”