Case Number: BC691940 Hearing Date: August 06, 2018 Dept: 32

JENNIFER SAMI GROS,

Plaintiff,

v.

DIGNITY HEALTH INC. et. al.,

Defendant.

Case No.: BC691940

Hearing Date: August 6, 2018

[TENTATIVE] order RE:

(1) demurrer

(2) motion to strike

(3) motion to compel further responses to special interrogatories

(4) motion to compel further responses to requests for production.

BACKGROUND

In BC627374 (Gros I) Plaintiff filed the original complaint on 7/15/2016 and filed a first amended complaint on 10/11/2016. Plaintiff asserted eleven causes of action against Valley Emergency Physicians Medical Group, Inc.; Dignity Health, Inc. and Shannon Bernal including (1) defamation; (2) Violation of Health and Safety Code §1278.5; (3) Business and Professions Code §510; (4) Labor Code §98.6 and 1102.5; (5) Adverse Action in Violation of Public Policy; (6) California Family Rights Act; (7) Discrimination; (8) Retaliation; (9) Failure to Provide Meal and Rest Breaks; (10) Labor Code §6310; and (11) FEHA Aiding and Abetting.

On January 8, 2018, the Court denied Plaintiff’s motion for leave to amend the complaint to substitute Northridge Emergency Medical Group and Ridgeline Emergency Medical Group as Doe Defendants on the grounds that NEMG was Plaintiff’s previous employer and Plaintiff failed to adequately explain why the name of her previous employer could not have been discovered earlier.

On February 6, 2018, the Court granted Defendants motion for summary adjudication as to the first cause of action for defamation. The Court found that Plaintiff’s defamation claim is barred against Dignity by Civil Code §43.8 because the statements made by Salo were privileged and Plaintiff failed to present any evidence of malice by Salo. Civil Code §43.8 protects communications intended to aid in the evaluation of the qualifications, fitness, and character of a healthcare provider. (See Hassan v. Mercy American River Hospital (1994) 7 Cal.4th 709, 714-715.) Plaintiff also voluntarily dismissed the action as to Defendant Bernal.

In BC691940 (Gros II) Plaintiff filed a verified Complaint on January 26, 2018 against Defendants Dignity Health, Inc.; Liz Clarke; and Saliba Salo. Plaintiff filed a first amended complaint alleging two causes of action, (1) interference with contractual relations and (2) defamation.

REQUEST FOR JUDICIAL NOTICE

Defendant’s request for judicial notice is GRANTED to Exhibits A-C, and E-F. Defendant’s RJN for Exhibit D is DENIED. (Cal. Evid. Code §452, 453.)

Plaintiff’s RJN is GRANTED. (Ibid.)

EVIDENTIARY OBJECTIONS

The Court rules on Plaintiff’s evidentiary objections to the Declarations and Evidence submitted by Defendants as follows: All objections are SUSTAINED.

ANALYSIS

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732–33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.) To sustain a demurrer based on a statute of limitations defense, it must appear clearly and affirmatively from the complaint that that the statute of limitations has run. It is not enough that the complaint might be barred. (Childs v. State of California (1983) 144 Cal. App. 3d 155, 161.)

Intentional Inference with Contractual Relations

Defendants Dignity Health, Inc. and Saliba Salo (“Defendants”) demur to the first cause of action on the grounds that there is another action pending between the same parties, the first cause of action is barred by collateral estoppel, Plaintiff fails to state facts sufficient to constitute a cause of action, and the pleading is uncertain.

Primary Rights Theory

“The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. A pleading that states the violation of one primary right in two causes of action contravenes the rule against splitting a cause of action. As far as its content is concerned, the primary right is simply the plaintiff’s right to be free from the particular injury suffered. It must therefore be distinguished from the legal theory on which liability for that injury is premised. Even if there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. The primary right must also be distinguished from the remedy sough. The violation of one primary right constitutes a single cause of action, though it may entitled the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) The primary right theory is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. (Id. at 682.) If the first suit is still pending when the second is filed, the defendant in the second suit may plead the fact in abatement. (Ibid.)

Defendants contend that in both suits Plaintiff seeks compensatory damages and alleges that in retaliation for alleged complaints about patient privacy and safety, Dignity interfered with her contract with VEP by making false statements about her to VEP and demanding the VEP terminate her, which resulted in VEP’s demand for plaintiff’s resignation in January 2016. In opposition, Plaintiff alleges that the primary rights asserted are different because Gros I is based on Plaintiff’s right to report unsafe hospital conditions, and Plaintiff’s right in Gross II is her right to contract. However, the Court disagrees with Plaintiff’s interpretation of the primary right. In Gros I and Gros II, plaintiff is suing for the same exact damages, and plaintiff is for the same alleged misconduct. The FAC in Gros I as a whole (specifically the fifth cause of action) addresses Plaintiff’s primary right to contract and the FAC in Gros I alleges Defendant’s interference with that right.

Based upon the primary right theory, Defendants’ demurrer to the First Cause of Action is SUSTAINED without leave to amend

The Court’s Prior Ruling

In Gros I, the court on January 1, 2018 ruled that Plaintiff could not file a DOE amendment concerning her prior employer because plaintiff could not sincerely assert that she was unaware of her previous employer’s identity, or that she could not have discovered it through readily accessible information. It would appear that plaintiff would also be barred from adding Salo as a DOE defendant in Gros I. (See, Wallis v. Southern Pac. Transportation Co. (1976) 61 Cal. App. 3d 782, 786. [“Even under the most liberal construction of section 474, it is established that the plaintiff’s ignorance, whether of the defendant’s true identity or of the facts giving rise to a cause of action, must be real and not feigned.”].)

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Defamation

Res Judicata

Res judicata bars the litigation not only of issues that were actually litigated in the prior proceeding, but also issues that could have been litigated in that proceeding. (Zevnik v. Suprior Court (2008) 159 Cal.App.4th 76, 82.) Res judicata precludes the relitigation of a cause of action only if (1) the decision in the prior proceeding is final and on the merits; (2) the present action is on the same cause of action as the prior proceeding; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding. (Ibid.)

Defendants contend that the Gros’ defamation claim was summarily adjudicated in Gros I, which bars Plaintiff from re-litigating any and all issues related to the defamatory statements allegedly made by Dignity employees about Plaintiff which interfered with her VEP contract. (RJN Exh E.) The Court agrees as Plaintiff brought a defamation claim against Dignity based on defamatory statements allegedly made about her to VEP by Dignity employees, the ruling on summary adjudication is a final judgment on the merits, and Dignity is the party in both suits responsible under a theory of respondeat superior for the employees’ statements. (See Lewis v. County of Sacramento (1990) 218 Cal.App.3d 214, 218.)

In the FAC in Gros II, Plaintiff alleges that Liz Clarke was at all times an employee of Dignity (FAC ¶3). Further, the Court already found in Gros I that the statements of Salo were privileged under Cal. Civ. Code 43.8, thus any liability for Salo or Dignity is precluded in this case. Further, the allegations asserted against Clarke could have been asserted in Gros I, as Clarke is identified as a participant in these conversations in Gros I. Plaintiff allegedly discovered these additional alleged statements by Clarke in February 2017 (Opp 9:3) but Plaintiff did not seek to add Clarke as a Doe Defendant in Gros I.

As such, Plaintiff’s defamation claim is barred by the doctrine of res judicata and Defendant’s demurrer to the second cause of action is SUSTAINED without leave to amend.

Based on the foregoing Defendant’s MOTION TO STRIKE, and Plaintiff’s two MOTIONS TO COMPEL FURTHER RESPONSES are MOOT[1].

[1] The discovery cut off for Gros I was in December 2017.