2012-00130238-CU-WT
Donna Robberecht vs. Permanente Medical Group Inc.
Nature of Proceeding:
Filed By:
Motion for Summary Judgment and/or Adjudication
McNamara, David R.

Defendants The Permanente Medical Group, Inc. and Moira Sharma, Psy.D’s Motion
for Summary Judgment or in the Alternative Summary Adjudication on the Second
Amended Complaint is granted.

Defendant’s Evidentiary Objections are sustained.

Plaintiff was given leave to file a 2th amended complaint, filed on February 24, 2014.
The Second Amended Complaint alleges only two causes of action, Defamation and
Retaliation under Health & Safety Code section 1278.5. The Second Amended
Complaint narrowed, rather than expanded, the scope of the Amended Complaint.

Therefore, the Court is ruling on the motion since the causes of action are the same.

The declaration of Jill Telfer contains a request for a continuance under CCP 437c(h).
The Court denies the request, as the discovery that plaintiff seeks is irrelevant to the
causes of action alleged in the complaint. Therefore, the proposed discovery is not
likely to lead to an issue of fact as to either the qualified privilege or retaliation claim.
Defendant moves for summary judgment/adjudication of the claims for defamation,
violation of H&S 1278.5. The motion also seeks to adjudicate the causes of action
that have been dismissed. The motion is therefore moot as to the 3rd, 4th and 5th
causes of action.

In ruling on a motion for summary judgment, the Court first identifies the issues framed
by the pleadings. The pleadings define the scope of the issues on a motion for
summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231
Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (see Lewis v. Chevron
(2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in
opposition to the motion must be addressed to the claims and defenses raised in the
pleadings. An issue that is “within the general area of issues framed by the pleadings”
is properly before the court on a summary judgment or summary adjudication motion. (
Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) A party
may not raise new issues in a declaration submitted in connection with a summary
judgment motion. Lewinter v Genmar Indus., Inc. (1994) 26 Cal. App. 4th 1214, 1223.
Next, the Court is required to determine whether the moving party has met its burden.
A defendant moving for summary judgment meets its burden of showing that the
plaintiffs cause of action has no merit by showing that one or more elements of the
cause of action cannot be established or that there is a complete defense to the cause
of action. CCP §437c(p) (2).] A defendant moving for summary judgment bears the
burden of persuasion that one or more elements of the plaintiffs cause of action cannot
be established, or that there is a complete defense to the cause of action. (Aguilar v.
Atlantic Richfield Co. (2001) 25 C4th 826, 850,quoting CCP §437c(p)(2)). A defendant
is not required to conclusively negate one or more elements of the plaintiffs cause of
action (Saelzer v. Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet
its burden, the defendant is only required to show that the plaintiff cannot prove an
element of its cause of action, i.e., that the plaintiff does not possess and cannot
reasonably obtain evidence necessary to show this element. Aguilar v Atlantic
Richfield Co., supra, 2 C4th at 853-855). At the same time, a defendant cannot shift
the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot
prove its case; a moving defendant must still make “an affirmative showing” in support
of its motion. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 854-855 n.23;
Addy v Bliss & Glennon (1996) 44 Cal. App. 4th 205, 214.)

Finally, the Court must determine whether the opposing party has met its burden.
Once the moving party has met its burden, the burden shifts to the opposing party to
show that a material factual issue exists as to the cause of action alleged or a defense
to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal.
App. 4th 322, 326-327; Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App.
4th 685, 690.)

In meeting this burden, a plaintiff may not rely on the mere allegations or denial of its
pleadings to show that a triable issue of material fact exists but, instead, must set forth
specific facts showing that a triable issue of material fact exists as to that cause of
action or a defense to it. (CCP §437c(p)(2); Aguilar v Atlantic Richfield, supra, 25 Cal.
4th at 849). The plaintiff cannot simply point to an absence of evidence to avoid
summary judgment. Borders Online LLC v State Bd. of Equalization (2005) 129 Cal.
App. 4th 1179, 1192. The plaintiff must present concrete evidence of proximate
causation and damages. Wiz Tech, Inc. v Coopers & Lybrand (2003) 106 Cal. App. 4th
1, 14-15.

Plaintiff is a licensed clinical social worker who was employed by Kaiser Permanente
for 13 years treating mental health patients. Plaintiff was terminated on August 17,
2011 because Plaintiff accessed the records of a patient, F.W. in violation of Kaiser’s
confidentiality policy. F.W. was a patient at Sierra Vista. Sierra Vista has a contract
with Kaiser to provide inpatient psychiatric services to Kaiser patients. Defendant
Moira Sharma is the Kaiser Adult Outpatient Psychiatry Manager and plaintiff’s
supervisor.Here, Plaintiff performed family therapy for two years with the parents of F.W. Plaintiff
was F.W.’s medical provider 2009 but not in 2011 when she accessed her records.

Sierra Vista provided a Daily Census report of their patients, which included personal
health information, to Kaiser Department of Psychiatry for the purpose of assisting in
the patients’ treatment. (SAC Para. 17) Plaintiff believed that she had a business
reason to access F.W.’s medical records without written authorization because she
wanted to assist F.W. in a successful discharge from Sierra Vista. Plaintiff accessed
F.W.’s records and learned that F.W. had reported that she had been raped at Sierra
Vista around the time that plaintiff was accessing her records.

Plaintiff accessed the records, including emergency department encounters and
psychotherapy clinical notes on six separate dates from June to August of 2011 (UMF
8, 10) One of the times that she accessed the records was before the alleged rape
was reported by F.W.

Plaintiff was terminated on August 17, 2011. Kaiser made the determination that
plaintiff had violated the confidentiality policy and that plaintiff did not have a business
reason to access the records of F.W. Plaintiff alleges that she was terminated and
retaliated against when Kaiser learned that plaintiff had accessed the records and
discovered the rape allegation. Plaintiff contends that Kaiser employees defamed her
by saying that the records she had accessed were those of a “family friend,” rather
than a former patient. Plaintiff alleges defendants published multiple times the untruths
that plaintiff “accessed the medical records of a family friend,” violated HIPAA, and
inappropriately accessed patient records without a work related need even after she
was instructed not to. Kaiser initiated an investigation of the plaintiff which she
contends was a cover-up for their own wrongdoing. Dr. Sharma conducted the
investigation. (UMF 9) Neither Dr. Sharma, Londa Freeman, Carrie Clark, or those on
the Review Committee had any knowledge that F.W. had made the allegation of rape
at any time prior to Plaintiff’s termination. (UMF 24)

Plaintiff’s theory of “preemptive retaliation” is that she was retaliated against once
plaintiff knew about the alleged rape, to prevent her from becoming a whistleblower
regarding the alleged rape of patient FW, which plaintiff contends exposes various
breaches of duty by Kaiser. It is undisputed that Plaintiff never made a report or
complaint about the alleged rape or any attendant wrongdoing by Kaiser, nor did she
ever express the intent of making such report. It is also undisputed that Kaiser itself
reported the alleged rape to the appropriate authorities.

1st cause of action Defamation: Summary Adjudication is granted.

Civil Code §47 provides a privilege to communications made without malice “to a
person interested therein, (1) by one who is also interested, or (2) by one who stands
in such a relation to the person interested as to afford a reasonable ground for
supposing the motive for the communication to be innocent, or (3) who is requested by
the person interested to give the information.” (Civ. Code §47(c).) Thus, an employer’s
communication of statements regarding an employee with persons who have a
“common interest” in the subject of the communication is privileged as long as it is
made without malice. (Civ. Code §47(c), Deaile v. G.T.C. (1974) 40 Cal.App.3d 841,
846.

Defendants have established by admissible evidence that any communication about
plaintiff’s access to FW’s records is protected by the qualified common interest
privilege. Civil Code section 47(c). Defendants did not discuss the investigation outside of the Kaiser entities except in discussions with union representatives and
reporting to the California Department of Public Health and the Employment
Development Department. Dr. Sharma never discussed the investigation, conclusions
or reasons for plaintiff’s termination with anyone outside the investigation, review
committee and grievance process. (UMFs 1-3) Defendants contend there is no
evidence of malice which is required to defeat the common interest privilege.
An employer’s investigation, made without malice, of complaints against employees
are privileged. (See Bierbower v. FHP, Inc. (1999) 70 Cal.App.4th 1, 3 [finding
communications regarding claimed sexual harassment are “necessarily of ‘mutual
interest'”]; Rangel v. Am. Med. Response West (E.D. Cal. 2013) 2013 U.S. Dist. LEXIS
59563, *55-56 [“At most, the evidence shows the statements, if any, were made
internally within [employer-defendant] solely for the purpose of reporting and
investigating [plaintiffs] alleged misconduct [during her altercation vvith a coworker].
This context alone would render the statements subject to the common interest
privilege in the absence of any evidence to suggest they were made maliciously.”].)
Here, the alleged defamatory statements were only made by TPMG and Dr. Sharma to
those with a common interest.

Plaintiff must present specific facts showing ill will of Dr. Sharma and TPMG toward
Plaintiff to avoid summary judgment. (Robomatic, Inc. v. Vetco Offshore (1990) 225
Cal. App.3d 270, 276.) “For purposes of establishing a triable issue of malice, ‘the
issue is not the truth or falsity of the statements but whether they were made
recklessly without reasonable belief in their truth.” (McGrory v. Applied Signal Tech.
(2013) 212 Cal.App.4th 1510, 1540 quoting Cuenca v. Safeway San Francisco
Employees Fed. Credit Union (1986) 180 Cal. App.3d 985, 999.)

In opposition, plaintiff does not dispute that the communications were made only to
interested persons, therefore coming within the qualified privilege. Plaintiff contends
that the facts concerning Kaiser’s knowledge of the rape allegations are evidence of
malice. In order to defeat summary adjudication of the first cause of action for
defamation, plaintiff is required to present evidence of specific facts raising a triable
issue as to whether Defendants acted with malice. (CCP §437c; Civil Code §47(c);
Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723.)

Plaintiff points only to facts pertaining to the investigation and reporting of FW’s
allegation of rape and Plaintiffs treatment of FW’s parents. Such facts do not give rise
to an inference as to Defendants’ state of mind in publishing the statements about
Plaintiffs unauthorized access of medical records in violation of TPMG policy.

2nd cause of action Retaliation under H&S 1278.5: Summary Adjudication is
granted.

Pursuant to H&S section 1278.5(b):”(1) No health facility shall discriminate or retaliate,
in any manner, against any patient, employee, member of the medical staff, or any
other health care worker of the health facility because that person has done either of
the following: (A) Presented a grievance, complaint, or report to the facility, to an
entity or agency responsible for accrediting or evaluating the facility, or the medical
staff of the facility, or to any other governmental entity. (B) Has initiated, participated,
or cooperated in an investigation or administrative proceeding related to, the quality of
care, services, or conditions at the facility that is carried out by an entity or agency
responsible for accrediting or evaluating the facility or its medical staff, or
governmental entity.Plaintiff does not allege that she participated in any protected activity. At no time did
plaintiff report or complain about F.W.’s alleged rape to Kaiser or any governmental
entity at any time prior to plaintiff’s termination. (UMF 22, 23) Dr. Sharma, Londa
Freeman, Carrie Clark and those on the review committee had no knowledge that F.W.
made the allegation of rape at any time prior to plaintiff’s termination. (UMF 24)
Because there is no protected conduct, this cause of action fails. The Court rejects
plaintiff’s attempt to apply the “preemptive retaliation” theory to the facts of this case.
The cases relied on by plaintiff, Lujan v Minager (2004) 124 Cal.App.4th 1040 and
Steele v Youthful Offender Parole Board (2008) 162 Cal.App.4th 1241, concerned
cases where the employer had the fear of an impending complaint. There is no
evidence that plaintiff ever expressed the intention to make any report of unlawful
conduct of Kaiser related to the alleged rape of F.W.

Even if plaintiff’s theory of “preemptive retaliation” applied to this case, the cause of
action fails for the additional reason that the employer has presented a legitimate
business reason for terminating the plaintiff. Defendants contend that they terminated
plaintiff for legitimate non-discriminatory reasons. Kaiser’s policies prohibit
unauthorized access of a patient’s medical records without a business need. (UMF 4)
Kaiser conducted an investigation and concluded that plaintiff had violated the
confidentiality policy. (UMF 26) Plaintiff’s employment was terminated for violating the
confidentiality policy. (UMF 27) In opposition, plaintiff essentially contends that she
disagrees with Kaiser’s determination that she had no business reasons for accessing
the records. However, this disagreement with Kaiser’s determination that plaintiff did
not have a business reason to access the records of a former patient does not raise an
issue of fact as to pretext.

“A plaintiff may demonstrate pretext in either of two ways: (1) directly, by showing that
the employer intended to retaliate against plaintiff, or (2) indirectly, by showing that the
employer’s proffered explanation is unworthy of credence because it is internally
inconsistent or otherwise not believable.” {Rangel, supra, 2013 U.,S. Dist. LEXIS
59563 at *34-35, quoting Earl v. Neilson Media Research, Inc. (9th Cir. 2011) 658 F.3d
1108, 1112.) “‘When evidence of pretext is circumstantial, rather than direct’, as in this
case, ‘the plaintiff must prove “specific” and “substantial” facts to create a triable issue
of pretext.'” (Ibid.) An employee must do more than show the employer’s decision was
‘.’wrong, mistaken or unwise”; the employee must “demonstrate such weakness,
implausibilities, inconsistencies, incoherencies or contradictions in the employer’s
proffered legitimate reasons for its actions that a reasonable fact finder could rationally
find them unworthy of credence . . . and hence infer that he employer did not act for
the . . . non-retaliatory reasons.” (Lucent, supra, at 746.) Plaintiff has not met her
burden to show pretext. She admitted to Dr. Sharma that she had accessed the
records of F.W., who was not her patient at the time. Her disagreement with Kaiser as
to whether she had a business reason to access the records does not show pretext.

Claim for punitive damages: Summary Adjudication is granted.

Plaintiff fails to raise an issue of fact in the opposition as to malice. Plaintiff argues
that Rodriguez, Royalty and Melcher are managing agents and that Ms. Hogarty and
Ms. Geary “have much autonomy and establish policy in their realm of
responsibility.” (Opp.22:23-26.) Even if these individuals qualify as “managing
agents,” plaintiff has failed to present a single fact that any of these individuals
engaged in conduct that amounts to malice, oppression or fraud. There is no evidence
that any allegedly defamatory comments about Plaintiff were published by Ms.
Rodriguez, Ms. Royalty and/or Dr. Melcher. There is no evidence that any of these individuals had influence in the investigation of Plaintiffs impermissible access to
F.W.’s records and/or the subsequent decision terminate the plaintiff. Ms. Hogarty and
Ms. Geary were both involved in the recommendation to terminate Plaintiff. However,
there is no evidence from which a trier of fact could infer that this recommendation
was due to malice, oppression or fraud in recommending termination.

Plaintiff, in conclusory terms, contends defendants acted with reckless disregard when
they accused plaintiff of violating HIPAA when she was trying to help the patient.
(UMF 38, Plaintiff’s deposition.) However, these facts do not support the required
conscious disregard to obtain punitive damages.

Defendants motion for summary adjudication/summary judgment is granted in its
entirety.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.