Case Name: Andrei Belorousou v. Kaiser Foundation Hospitals

Case No.: 17CV309032

This is an employment dispute between Plaintiff Andrei Belorousou (“Plaintiff”) and Defendant Kaiser Foundation Hospitals (“Defendant”) primarily based on alleged discrimination and wrongful termination. Plaintiff was employed by Defendant as a nurse at Kaiser Hospital’s Intensive Care Unit (“ICU”) from February 2005 until his termination in October 2016.

Plaintiff’s operative Second Amended Complaint (“SAC”) states claims for: 1) Violation of Health & Safety Code § 1278.5; 2) Violation of Labor Code §1102.5; 3) Violation of Labor Code §98.6; 4) Violation of Labor Code §6310; 5) Defamation (alleging that false oral statements were made that Plaintiff was caught with a drug bottle in his pocket and then terminated for drug diversion); 6) False Light Invasion of Privacy (based on the same oral statements) ; 7) Disability Discrimination (FEHA) (alleging that Plaintiff was not provided reasonable accommodation for alleged high blood pressure/hypertension, cataracts, depression and anxiety); 8) National Origin Discrimination (FEHA) (alleging Plaintiff was discriminated against because of his Russian origin); 9) Retaliation (FEHA); 10) Failure to Prevent Discrimination/Retaliation (FEHA), and; 11) Wrongful Termination.

Currently before the Court are two matters: Defendant’s motion for summary judgment/adjudication (line no. 2) and Defendant’s motion to file certain documents under seal (line no. 3). The Court will address the motion to seal first.

Defendant’s motion to seal

Defendant seeks to submit Defense exhibits 3-12 & 23-25 (containing patient medical records) supporting its motion for summary judgment/adjudication under seal. Plaintiff does not oppose the motion. The motion is GRANTED as the Court finds that the submission of the patient medical records under seal is appropriate under Cal. Rules of Court 2.550 & 2.551.

Defendant’s motion for summary judgment/adjudication

The pleadings limit the issues presented for summary judgment/adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an “issue of duty.” (See Code of Civil Procedure [“CCP”] §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.) CCP §437c(t) makes clear that the only means by which a party may seek summary adjudication of only part of a cause of action or of an issue other than an “issue of duty” is by submitting a joint stipulation of the parties to the court, specifying the issue(s) to be adjudicated which the Court must then approve before the motion can be filed.

The only “claim for damages” that can be independently summarily adjudicated under CCP §437c(f)(1) is a claim for punitive damages. (See DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410 [Summary adjudication statute does not permit summary adjudication of one or more components of compensatory damages which does not dispose of entire cause of action; punitive damage claim is only type of damage claim which may be summarily adjudicated without disposing of entire cause of action]; See also Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1312; Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1169; Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 240-241.)

Defendant moves for summary judgment on the basis that “there are no triable issues of material fact as to Belorousou’s causes of action and Kaiser is entitled to summary judgment as a matter of law.” (Notice of Motion at p. 2:7-8.) In the alternative Defendant seeks summary adjudication of 35 claimed “issues,” nearly all of which fail to completely dispose of a cause of action, an “issue of duty” or a request for punitive damages. In its papers (Memo. of P&As at pp. 8:24-9:6) Defendant suggests that its approach is permitted under Lilienthal & Fowler v. Super. Ct. (1993) 12 Cal.App.4th 1848 (Lilienthal). This is not persuasive. In Lilienthal, the plaintiffs filed claims for breach of contract and negligence against defendant lawyers arising out of legal services provided to the plaintiffs at different times on two separate and distinct matters. The court found “that the two matters have no relation to each other and involve legal services performed at different times, with different and distinct obligations, and distinct and separate alleged damages.” (Id. at 1854.) The Court allowed summary adjudication of one of the two unrelated acts of legal malpractice. The validity of this approach has long been questioned and CCP §437c(f) was subsequently amended to expressly state that a motion for summary adjudication shall be granted only if it would completely dispose of a cause of action, claim for damages, or issue of duty. (See Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1095, fn. 2 [“We question whether Lilienthal properly construed subdivision (f)(1) of section 437c . . . As subsequently amended, subdivision (f)(1) now provides that a ‘motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.’”] Emphasis in original.)

Where Lilienthal’s conceptual approach has survived, it has been limited to situations where separate and distinct wrongful acts affecting different “primary rights” are combined into a single cause of action or where several causes of action allege a violation of only one “primary right” while seeking different remedies. (See Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257-1258.) Defendant does not demonstrate how a “primary rights” analysis of the claims alleged in the SAC justifies its attempt at partial summary adjudication.

On summary judgment/adjudication the moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The moving party may generally not rely on additional evidence filed with its Reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

The Court cannot evaluate credibility in ruling on summary judgment or summary adjudication. “Typically in summary judgment litigation, equally conflicting evidence requires a trial to resolve the dispute.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 881.)

Special rules govern the allocation of the burden of proof on motions for summary judgment in wrongful termination and employment discrimination cases, under both federal and state law. State courts follow the approach taken by federal courts in these cases. (Moore v. Regents of Univ. of Calif. (2016) 248 Cal.App.4th 216, 233.) Because direct evidence of discrimination is seldom available, courts use a system of shifting burdens as an aid to the presentation and resolution of such cases both at trial and on a motion for summary judgment. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-355.) “California has adopted a three-stage burden-shifting test established by the United States Supreme Court for trying employment discrimination claims that are based on the disparate treatment theory. [Citations.] Under this ‘McDonnell Douglas test,’ (1) the plaintiff must establish a prima facie case of discrimination; (2) if the plaintiff is successful, the employer must offer a legitimate nondiscriminatory reason for its actions; and (3) if the employer produces evidence on that point, the plaintiff must show that employer’s reason was a pretext for discrimination.” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144.)

When the employer is the moving party, the initial burden rests with the employer to show that no unlawful discrimination occurred. (CCP §437c(p)(2). See Guz, supra at pp. 354-355; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal App 4th 297, 309; McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal App 4th 1510, 1523 [employee has no obligation to produce evidence until defendant “has established either the existence of a complete defense or the absence of an essential element of plaintiff’s claim.”]) The employer may do this by presenting admissible evidence either: negating an essential element of the employee’s claim (difficult to do, because prima facie case of discrimination is so flexible); or showing some legitimate, nondiscriminatory reason for the action taken against the employee. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal App 4th 189, 202-203.)

If the employer meets the initial burden, to avoid summary judgment the employee must produce “substantial responsive evidence that the employer’s showing was untrue or pretextual” thereby raising at least an inference of discrimination. (Hersant v. Cal. Dept. of Social Services (1997) 57 Cal.App.4th 997, 1004-1005. A plaintiff’s “suspicions of improper motives . . . primarily on conjecture and speculation” are not sufficient to raise a triable issue. (Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564.) Evidence showing facts inconsistent with the employer’s claimed reasons tends to prove the employer’s discriminatory intent; that the stated reason was mere pretext. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735; Reeves v. MV Transp., Inc. (2010) 186 Cal.App.4th 666, 675. “Pretext” does not require proof that discrimination was the only reason for the employer’s action. It is enough that discrimination was a determinative factor; i.e., that discriminatory intent was a substantial motivating factor in the employer’s decision to take the adverse action. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232; Mendoza v. Western Med. Ctr. Santa Ana (2014) 222 Cal.App.4th 1334, 1341-1342)

An employee may also avoid summary judgment by attacking the credibility of the employer’s declarations, showing they contain inconsistencies, implausibilities, etc., such that “a reasonable fact-finder could rationally find them unworthy of credence.” (Hersant, supra, 57 Cal.App.4th at p. 1005; Sandell, supra, 188 Cal.App.4th at p. 314.)

Where the employee presents direct evidence of discrimination the balancing test does not apply. “When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” (Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221.) “The United States Supreme Court has held . . . that ‘the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.’ Direct evidence is evidence which proves a fact without inference or presumption. ‘Where a plaintiff offers direct evidence of discrimination that is believed by the trier of fact, the defendant can avoid liability only by proving the plaintiff would have been subjected to the same employment decision without reference to the unlawful factor.’” (Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1144–45, internal citations omitted.)

Defendant’s primary argument for summary judgment is that it had legitimate, non-discriminatory reasons for Plaintiff’s termination in October 2016. Assuming for purposes of argument that it has met its initial burden on this point summary judgment is DENIED as, when the burden shifts to Plaintiff he is able to raise triable issues as to whether the stated reasons for his termination (as set forth in Defense exhibit 30, the August 26, 2016 termination letter given to Plaintiff) were a pretext.

Plaintiff’s evidence, including but not limited to his 2015 and 2016 performance reviews (Plaintiff’s exhibits B & C) as well as the declarations submitted by Plaintiff (Plaintiff’s exhibit A) and by Lorna Fortuna (Plaintiff’s exhibit G) regarding the working conditions of Defendant’s ICU and the practical realities of providing care in an ICU constitute substantial responsive evidence from which a finder of fact could reasonably conclude that Defendant’s stated reasons for terminating Plaintiff were untrue, implausible and/or pretextual. A fact finder could also reasonably infer from Plaintiff’s evidence that Plaintiff’s complaints about working conditions, unpaid wages, failure to reasonably accommodate disabilities, and/or the personal animosity and discriminatory animus of those who made accusations against him (some of whom no longer work for Defendant) were a substantial motivating factor in his suspension and eventual termination. “If triable issues of material fact exist whether discrimination was a substantial motivating reason for the employer’s adverse employment action, even if the employer’s professed legitimate reason has not been disputed, the FEHA claim is not properly resolved on summary judgment.” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1186; See also Nazir v United Airlines, Inc., supra, 178 Cal.App.4th at p. 283 [Because proof of discriminatory intent often depends on inferences rather than direct evidence, very little evidence of this intent is necessary to defeat summary judgment, i.e., a judge should not grant summary judgment unless the evidence cannot support any reasonable inference for the plaintiff.])

Turning to Defendant’s motion for summary adjudication in the alternative, the only purported “issues” for summary adjudication listed in Defendant’s Notice of Motion that comply with CCP §437c(f)(1) are “issues” 13, 14, 17, 21, 25, 31, and 34-35. Therefore, these are the only “issues” the Court will rule on.

Summary adjudication of “Issue” 13 (that the defamation and false light invasion of privacy claims fail because the statement that Plaintiff “was caught with a drug bottle in his pocket was true,” is DENIED. Defendant cannot meet the initial burden as the only evidence cited in support of the “issue” (Plaintiff’s deposition testimony submitted as Defense exhibit 40) does not establish that the statement was true.

Summary adjudication of “Issue” 14 (that Defendant cannot, as a matter of law, be vicariously liable for defamation or false light invasion of privacy based on statements by “non-management personnel”) is DENIED. Defendant has not demonstrated that the argument is correct. An employer may be held vicariously liable for defamatory statements regarding employees made by their supervisors or coworkers in the course and scope of employment. (See Kelly v. General Tel. Co. (1982) 136 Cal.App.3d 278, 284; Rivera v. National R.R. Passenger Corp. (9th Cir. 2003) 331 F3d 1074, 1080 [applying California Law]; see also Chin, Wiseman, Callahan & Lowe, Cal. Prac. Guide: Employment Litigation (The Rutter Group 2017) ¶5:480, p. 5(I)-58.)

Summary adjudication of “Issue” 17 (that the SAC’s seventh cause of action for disability discrimination fails because Plaintiff cannot meet his prima facie burden) is DENIED. “On a disability discrimination claim, the prima facie case requires the plaintiff to show ‘he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability.’ [Citation.]” (Wills v. Super. Ct. (2011) 195 Cal.App.4th 143, 159-160.) Assuming for purposes of argument that Defendant has even met its initial burden as to this “issue,” when the burden shifts to Plaintiff he is able to raise triable issues of material fact. At a minimum Defendant’s own evidence (Plaintiff’s deposition testimony submitted as exhibit 40) and Plaintiff’s declaration establish that he told both Seema Sulemani and Kerianne Caligiure about his hypertension, he was “written up” more than once for keeping his blood pressure medication with him, and that this continued even after he complained to his union representative. (See Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at pp. 1053-1056 [“adverse employment action” to be liberally construed to serve purposes of statute; not improper for court to consider collectively several alleged retaliatory acts, with view toward determining whether adverse employment action has occurred under totality of circumstances, without necessarily determining whether each act separately constituted adverse employment action.]

Summary adjudication of “Issue” 21 (that the eighth cause of action for national origin discrimination fails because Plaintiff cannot meet his prima facie burden) is DENIED. On a claim for national origin/ethnicity discrimination a plaintiff’s initial burden is to show that (1) he/she is a member of a protected class; (2) they suffered an adverse employment action; and (3) similarly situated persons who were not members of the protected class did not suffer the same adverse employment action. The employer would then have to provide a legitimate nondiscriminatory reason why the plaintiff was treated differently. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 951, 991.) “Because proof of discriminatory intent often depends on inferences rather than on direct evidence, very little evidence of such intent is necessary to defeat summary judgment.” (Id.) Here Defendant’s own evidence (Plaintiff’s deposition testimony submitted as Defense exhibit 40) and Plaintiff’s opposing declaration, both indicating that other nurses were not disciplined for behavior similar to that described in Plaintiff’s termination letter and that Human Resources Consultant Lina Slack was heard to refer to Plaintiff as the “Russian guy” and a “troublemaker” is enough to raise a triable issue of material fact as to national origin discrimination. “A stray remark alone may not create a triable issue of … discrimination. … But when combined with other evidence of pretext, an otherwise stray remark may create an ‘ensemble [that] is sufficient to defeat summary judgment.’” (Reid v. Google (2010) 50 Cal.4th 512, 541-542, emphasis in original.)

Summary adjudication of “Issue” 25 (that the ninth cause for retaliation fails because Plaintiff did not engage in protected activity) is DENIED for failure to meet the initial burden. The ninth cause of action encompasses among other things the alleged discrimination on the basis of disability. The Supreme Court in Yanowitz, supra, stated (at p. 1043): “It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA.”

Summary adjudication of “Issue” 31 (that the eleventh cause of action for wrongful termination fails because it is “derivative” of the “failed” discrimination and retaliation claims) is DENIED for failure to meet the initial burden as triable issues remain as to the discrimination and retaliation claims.

Summary adjudication of “Issue” 34 (that Plaintiff’s “claim” for punitive damages fails because no officer, director or managing agent of Defendant was involved in the employment actions taken against Plaintiff is GRANTED. Defendant has established through admissible evidence (Defense exhibits B-E) that Seema Sulemani, Karen Caruana, Kerianne Caligiure, Lina Slack, Therese Nero, and Richard Contreras were not officers, directors or managing agents of Defendant. When the burden shifts to Plaintiff he is unable to raise any triable issues as to whether Seema Sulemani, Karen Caruana, Kerianne Caligiure, Lina Slack or Theresa Nero were managing agents of Defendant. Plaintiff does not dispute that Richard Contreras cannot be considered an officer, director or managing agent and he does not argue that any of the other listed individuals could be could be considered officers or directors of Defendant.

“Generally, 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. [Citation.] Thus, to establish that an individual is a managing agent, a plaintiff seeking punitive damages must show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business. [Citation.] In this context, corporate policy refers to formal policies that affect a substantial portion of the company and that are of the type likely to come to the attention of corporate leadership.” (CRST, Inc. v. Super. Ct. (2017) 11 Cal.App.5th 1255, 1273, internal quotation marks omitted, emphasis added.) “The key inquiry thus concerns the employee’s authority to change or establish corporate policy. [Citation.] The fact that an employee has a supervisory position with the power to terminate employees under his or her control does not, by itself, render the employee a managing agent. [Citations.] Nor does the fact that an employee supervises a large number of employees necessarily establish that status. [Citation.]” (Id. at p. 1273.) Plaintiff has presented no evidence from which a reasonable inference could be drawn that Seema Sulemani, Karen Caruana, Kerianne Caligiure, Lina Slack or Theresa Nero “exercised substantial discretionary authority over significant aspects of” Defendant’s business such that they could be considered managing agents.

Summary adjudication of “issue” 35 (that the “claim” for punitive damages fails for lack of evidence of malice, oppression or fraud) is DENIED as MOOT in light of the Court’s ruling on “issue” 34.

The Court notes that both sides have submitted evidentiary objections. Plaintiff’s objections to Defendant’s evidence (submitted with his opposition to the motion) fully comply with Cal. Rule of Court 3.1354 and will be addressed in the submitted proposed order. Defendant’s objections to Plaintiff’s evidence (submitted with its reply) do not comply with Rule of Court 3.1354, which requires two documents to be submitted: the objections and a separate proposed order on the objections, both of which must be in one of the two approved formats stated in the Rule. As Defendant’s objections do not comply with the Rule the Court will not rule on them. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule of Court 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].) Objections that are not ruled on are preserved for appellate review. (CCP § 437c(q).)