Case Name:   Bindya H.S.B. Singh v. Santa Clara Valley Medical Center, et al.

Case No.:       1-13-CV-244607

 

Currently before the Court is the demurrer and motion to strike of defendants County of Santa Clara (“County”) and Balaji Govindaswami (“Govindaswami”) (collectively, “Defendants”) to the second amended complaint (“SAC”) of plaintiff Bindya H.S.B. Singh (“Singh”). County demurs to the second and third causes of action for retaliation under the Labor Code and retaliation under the Business and Professions Code and the Health and Safety Code on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e), (f).) Govindaswami demurs to the seventh cause of action for interference with prospective economic advantage on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 4310.10, subd. (e).) Defendants move to strike Singh’s requests for punitive damages on the basis that they are not legally recoverable. (See Code Civ. Proc., §§ 435, subd. (b)(1), 436.)

 

Uncertainty

County demurs to the second and third causes of action on the ground of uncertainty. In particular, it contends that Singh cites multiple statutes with different elements as a basis for each cause of action. As a result, it asserts that the causes of action are uncertain. “A demurrer for uncertainty is strictly construed, even where a [pleading] is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the pleading is so incomprehensible that the opposing party cannot reasonably respond. (See Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

 

Here, the pleading is not so incomprehensible that County cannot reasonably respond. In this regard, County’s demurrer fully addresses each of the statutes cited in the pleading. Accordingly, the demurrer on the ground of uncertainty is OVERRULED.

 

Second Cause of Action for Retaliation under the Labor Code

 

County contends that Singh fails to state a cause of action for a violation of Labor Code section 1102.5 because she does not allege that she disclosed any information involving a violation of a state or federal law or regulation. In opposition, Singh asserts that her complaint concerning Govindaswami’s purchase of expensive equipment on behalf of VMC from a company in which his family members invested constitutes a disclosure of a violation of federal insider trading laws.

 

County argues that the Singh’s complaints concern the type of improper conduct found not to be actionable in Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378. In Patten, a principal made a number of complaints to her superiors including that a teacher made an inappropriate comment to a student, a teacher peered into the girl’s locker room, additional staff was necessary to keep the school safe, and the school was repurposing state funding for unauthorized expenditures. (Id. at p. 1382.) The Court of Appeal found that the disclosures involving the two teachers and the need for additional safety personnel did not amount to whistleblowing as a matter of law because the disclosures were made in the context of internal personnel matters, rather then in the context of a legal violation. (Id. at p. 1385.) The Court warned: “To exalt these exclusively internal personnel disclosures with whistleblower status would create all sorts of mischief. Most damagingly, it would thrust the judiciary into micromanaging employment practices and create a legion of undeserving protected ‘whistleblowers’ arising from the routine workings and communications of the job site.” (Id.) In contrast, the Court of Appeal found that the disclosure concerning the unauthorized use of funds could amount to whistleblowing because the plaintiff disclosed the information to a state Assembly Member and a representative of a state senator and was fearful of the legality of the use of the funds. (Id. at p. 1386.)

 

With regard to the disclosure concerning the purchase of allegedly unnecessary and expensive equipment, Singh alleges: “Dr. GOVINDASWAMI has revealed to Plaintiff his unethical conflict of interest concerning encouraging family and friends to invest in stock in a manufacturer of equipment the NICU had procured, in May of 2008 while they were on an airplane together and he had been drinking. In 2012, he happened to catch her discussing the matter privately with Paul Barraza.” (SAC, p. 5:10-14.) These allegations are insufficient to establish that Singh had reasonable cause to believe the information disclosed a violation of law. Unlike the plaintiff in Patten, she fails to allege that she considered Govindaswami’s actions to be a violation of state or federal law at the time she disclosed this information. (See Patten, supra, 134 Cal.App.4th at p. 1385 [plaintiff must show belief on his or her part that disclosure was violation of state or federal law in context of whistleblowing].) Instead, she appears to have considered Govindaswami’s conduct to be merely unethical and inappropriate. Accordingly, Singh fails to allege sufficient facts to state a cause of action for retaliation pursuant to Labor Code section 1102.5.

 

County next argues that Singh fails to allege a violation of Labor Code section 6310 because she does not state that she made any complaints concerning unsafe working conditions. In opposition, Singh contends that she complained about the provision of only on-call physicians instead of on-site physicians, which endangered the health and safety of County’s physicians because it required them to drive in an unsafe manner in order to care for patients in need of immediate assistance.

 

County relies on Shulthies v. National Passenger Railroad Corp. (N.D.Cal. 2009) 650 F.Supp.2d 994, 1001-1002 for the proposition that Singh’s complaint does not concern workplace health and safety. In Shulthies, the plaintiff, a railroad employee, alleged that he was terminated shortly after he sent an email requesting an investigation into the danger to the public of the railroad’s decision to allow only one engineer to operate a train rather than two. (Id. at p. 1002.) The railroad moved to dismiss on the basis that the e-mail was not a bona fide complaint about unsafe working conditions or work practices. (Id. at p. 997.) The district court agreed, finding that the e-mail reflected only the employee’s concern that the new work location would require more management supervision, would disrupt the families of engineers, and wouldn’t save any money. (Id. at p. 1002.)

 

Here, Singh does not provide facts indicating that her complaint over the use of on-call rather than on-site physicians concerned the health and safety of the on-call physicians. Instead, it appears that she was primarily concerned with the disruption to patient care occasioned by the time necessary for the physician to drive to the hospital. (See SAC, p. 4:6-8 [Singh complained that Govindaswami made “decisions about NICU operations that impaired patient care including without limitation: not providing for on-site physician in the NICU at all times….”].) Thus, Singh fails to state facts indicating that she was discharged for making a bona fide complaint of unsafe working conditions or work practices.

 

Based on the foregoing, the demurrer to the second cause of action for retaliation in violation of the Labor Code is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

Third Cause of Action for Retaliation under the Health and Safety Code and the Business and Professions Code

 

County contends that Singh fails to state facts sufficient to constitute a cause of action for retaliation because she does not allege facts indicating that she was terminated for identifying unsafe conditions or advocating for medically appropriate health care.

First, County contends that Singh does not specifically allege the “unsafe” nature of the purportedly unsafe practices of which she complained. In opposition, Singh asserts that she has adequately alleged that the use of nurse practitioners and the failure to provide an on-site physician at all times caused unsafe patient care. In addition, she indicates that she can provide more specific allegations concerning how these practices caused unsafe patient conditions.

 

Here, Singh alleges that she was discharged because she made a complaint concerning unsafe patient care or conditions, namely, the use of nurse practitioners and the failure to provide an on-site physician at all times. (See SAC, p. 4:6-9.) County provides no authority for the proposition that Singh must allege additional facts concerning the nature of the harm stemming from the purportedly unsafe patient care she identified. Accordingly, Singh states sufficient facts to allege a violation of Health and Safety Code section 1278.5.

 

County next argues that Singh does not allege that she was terminated principally for advocating medically appropriate health care for her patients. In opposition, Singh contends that she properly alleges that she was terminated because she advocated for an on-site physician at the NICU and limiting the use of nurse practitioners.

In the SAC, Singh does not allege that she was terminated “principally” for advocating medically appropriate health care and does not specify the type of medically appropriate health care for which she was terminated. (See Sarka v. Regents of Univ. of California (2006) 146 Cal.App.4th 261, 271-272 [plaintiff must establish termination principally or primarily for advocating appropriate health care].) Instead, she alleges her termination was due to a number of factors, including discrimination on account of her religion and age. (See SAC, pp. 12:22-23, 13:13-15.) Thus, it is unclear whether one or more of these reasons form the principal basis for her termination. Accordingly, Singh fails to state facts indicating that County violated Business and Professions Code sections 510 and 2056.

 

Although the allegations of the SAC are insufficient to establish a violation of Business and Professions Code sections 510 and 2056, “a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1047; see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [motion to strike, rather than demurrer, used to challenge portion of cause of action].) Here, Singh states sufficient facts to allege a cause of action for retaliation based upon a violation of Health and Safety Code section 1278.5. Accordingly, the demurrer to the third cause of action for retaliation is OVERRULED.

 

Seventh Cause of Action for Interference with Prospective Economic Advantage

 

In her opposition, Singh agrees to dismiss the seventh cause of action for interference with prospective economic advantage against Govindaswami. Accordingly, the demurrer to the seventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

 

Motion to Strike Request for Exemplary Damages

 

            Defendants move to strike Singh’s requests for punitive damages on the basis that they are not legally recoverable. In opposition, Singh concedes that punitive damages are not available as against County. With regard to the request for punitive damages as to Govindaswami, Singh seeks leave to amend to clarify the punitive damages request. Accordingly, the motion to strike is GRANTED WITH 10 DAYS’ LEAVE TO AMEND to allow Singh to clarify her punitive damages request against Govindaswami.

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