Case Number: BC426353 Hearing Date: April 16, 2014 Dept: 56

Case Name: Alexander, et al. v. Community Hospital of Long Beach, et al.
Case No.: BC426353
Motion: Motions for Summary Judgment/Adjudication
Moving Party: Defendants MCA and MPHS
Responding Party: Plaintiffs

Tentative Ruling: Both motions are denied.

Plaintiffs Judy Alexander, Lisa Harris, and Johann Hellmannsberger filed this action against Defendants Community Hospital of Long Beach and Memorial Counseling Associates Medical Group Inc. (MCA). Plaintiffs amended the complaint to name Memorial Psychiatric Health Services Inc. (MPHS) as a Doe defendant. MPHS and MCA move for summary judgment or adjudication.

OBJECTIONS
Plaintiffs object to both motions as untimely under CCP §437c(a). The objections are overruled, because Plaintiffs stipulated that Defendants could have motions for summary judgment or adjudication heard within 30 days of trial.

MPHS and MCA each objects and moves to strike Plaintiffs’ opposition statement of undisputed material facts. The objections are overruled and the motions to strike are denied.

MPHS and MCA jointly object to Plaintiffs’ opposing evidence (Gallagher declarations): Objections 2, 4, 6, 9, 10, 13, 15, 17 and 20 are sustained, and the rest are overruled.

MPHS MOTION
MPHS moves for summary adjudication of Plaintiffs’ claims.

Failure to Exhaust Administrative Remedies –
MPHS moves for summary adjudication of Plaintiffs’ FEHA claims (1st – 4th COAs) on the ground that Plaintiffs failed to exhaust their administrative remedies against MPHS. In its motion, MPHS presents evidence that Plaintiffs’ DFEH administrative complaints only named Community Hospital and MCA. In opposition Plaintiffs argue that exhaustion may be excused because MPHS and MCA are closely related parties that have both been identified as the employer of Keith Kohl – the supervisor who allegedly harassed and discriminated against Plaintiffs. Among other things, Plaintiffs present evidence that MCA and MPHS operate from the same business address, have common ownership and control, and are both involved in the hospital unit where Plaintiffs worked.

Plaintiffs’ argument has merit. Federal courts have held that an action may proceed against a party who was not named in the administrative charge if the unnamed party and the named parties are substantially identical. As the Ninth Circuit held in Sosa v. Hiraoka (9th Cir. 1990) 920 F.2d 1451, 1459: “if the respondent named in the EEOC charge is a principal or agent of the unnamed party, or if they are ‘substantially identical parties,’ suit may proceed against the unnamed party.” Accord EEOC v. Nat’l Educ. Ass’n (9th Cir. 2005) 422 F.3d 840, 847; Ortez v. Washington County (9th Cir. 1996) 88 F.3d 804, 808.

California courts routinely rely on federal decisions under Title VII to interpret the FEHA. Indeed, Sosa v. Hiraoka was cited with approval in Nazir v. United Airlines (2009) 178 Cal.App.4th 243, 266-267. And several Court of Appeal decisions have relaxed the exhaustion requirement for an unnamed party who should have been aware of the administrative proceedings. See Saavedra v. Orange County (1992) 11 Cal.App.4th 824, 826-828; Martin v. Fisher (1992) 11 Cal.App.4th 118, 119-123. Since MCA and MPHS operate from the same location and have common management and ownership, these holdings apply here.

MPHS relies upon Cole v. Antelope Valley Union HSD (1996) 47 Cal.App.4th 1505, but that decision is distinguishable. Cole involved two individual school administrators who were not named in the DFEH complaint and would not have been aware of or involved in the DFEH process. 47 Cal.App.4th at 1513-14. In contrast, in our case there is evidence that MPHS and MCA jointly operated the unit where Plaintiffs worked, have both been identified as employers of the supervisor identified in Plaintiffs’ complaint, are closely related corporations with common ownership and control, and both operated from the address where the DFEH papers were served. These facts here are much closer to the federal and state decisions cited above, and they raise triable issues on this question.

There are triable issues for this defense, and summary adjudication of this issue is denied.

Employment Relationship –
MPHS moves for summary adjudication of Plaintiffs’ FEHA claims (1st – 5th COAs) on the ground that Plaintiffs were not employed by MPHS.

As the Court of Appeal explained in McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 301-302, “The ‘fundamental foundation for liability’ under FEHA is the ‘existence of an employment relationship’ between the parties, even if indirect. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 123 [10 Cal. Rptr. 3d 121], italics omitted.) An assessment of whether such an employment relationship exists requires a consideration of the totality of the circumstances. (Id. at p. 124.) Factors to be considered are the payment of salary or other benefits, the ownership of the equipment used by the employee, the location where the relevant work is performed, the responsibility of the employer to train the employee, the authority to promote or discharge the employee, and the power to determine the schedule, assignment, and amount of compensation earned by the employee. (Id. at p. 125.) Although there is ‘no magic formula’ and no one dispositive factor, the most important consideration is the right of the employer ‘to control the means and manner of the workers’ performance.’ (Id. at pp. 124–125, 126.) That control must be significant in order to hold the alleged employer responsible, especially when the conduct underlying the claim was committed indirectly, by an immediate employer other than the defendant. (Id. at p. 126.)”

Applying this analysis, courts have held that multiple entities may be liable under the FEHA as joint employers. In Bradley v. Department of Corrections (2008) 158 Cal.App.4th 1612, the Court of Appeal held that a temporary service agency and the State were joint employers of a social worker who worked in a prison. The social worker was hired and paid by the agency, but her working conditions were controlled by the State. The court held that the social worker could recover under the FEHA, because “The law has long recognized that a contracting employer acts as an ‘employer’ for purposes of applying state and federal antidiscrimination laws.” 158 Cal.App.4th at 1625-29; see also Laird v. Capital Cities (1998) 68 Cal.App.4th 727, 737 (recognizing an “integrated enterprise” basis for joint employer liability); Kang v. U. Lim Am. (9th Cir. 2002) 296 F.3d 810, 815 (same).

MPHS has presented evidence that it is engaged in the business of managing inpatient psychiatric hospital programs. MPHS contracted with Community Hospital to manage its inpatient psychiatric program. Keith Kohl was employed by MPHS as Director/Nurse Manager of the program. Kohl was based at Community Hospital and was involved each day in hiring, supervising, scheduling, disciplining and evaluating nursing employees in the program.

Plaintiffs were employed by Community Hospital, but they worked in the program managed by MPHS and Kohl. Through his day-to-day supervision of the program, Kohl was directly involved in controlling the means and manner in which Plaintiffs’ performed their jobs. There is evidence that Kohl supervised Plaintiffs’ employment, and was directly involved in the termination of their employment and the other conduct challenged by Plaintiffs.

Viewing the totality of the circumstances, there are triable issues as to whether MPHS was a joint employer of the Plaintiffs. Summary adjudication of this issue is denied.

Sexual Harassment –
MPHS moves for summary adjudication of Plaintiffs’ claim for unlawful harassment (1st COA), on the ground that Plaintiffs were not employed by MPHS and they are attempting to hold MPHS vicariously liable for the actions of Kohl.

Although MPHS has made its argument on the basis of vicarious liability, it is really a restatement of its earlier claim that Plaintiffs were not employed by MPHS. As discussed above, there are triable issues as to whether MPHS was a joint employer of the Plaintiffs. Summary adjudication of this issue is denied.

Termination for Legitimate Reasons –
MPHS moves for summary adjudication of Plaintiffs’ termination claims (2nd, 4th & 5th COAs), on the ground that Plaintiffs were terminated for legitimate reasons.

MPHS has presented evidence that Kohl learned that Plaintiffs had improperly placed a psychiatric patient in restraints, he investigated the incident, believed that Plaintiffs had violated applicable standards of care, and he supported the termination of their employment. In opposition, Plaintiffs have presented evidence which disputes the facts of the patient incident, their culpability, and Kohl’s good faith. Much of Plaintiffs’ evidence is from transcripts of other proceedings, including the criminal action against Plaintiffs. These transcripts are admissible in a summary judgment proceeding. See Williams v. Saga Enterprises (1990) 225 Cal.App.3d 142, 149. There are triable issues for Plaintiffs’ termination claims, and summary adjudication of this issue is denied.

Defamation –
MPHS moves for summary adjudication of Plaintiffs’ claim for defamation (7th COA) on the grounds that the statements were privileged and MPHS was not responsible for the statements.

There are triable issues for this cause of action. The evidence presented by Plaintiffs – particularly the criminal trial testimony – raises triable issues on the question of malice, which is a necessary element of the qualified privilege under CC §47(c). See Sanborn v. Chronicle (1976) 18 Cal.3d 406, 413. The privilege under CC §47(b) does not provide a complete defense to the 7th cause of action, because not all of the statements were made within or in connection with an official proceeding. And Plaintiffs have presented evidence that statements were made by Kohl, who is an agent for which MPHS can be responsible. Summary adjudication of this issue is denied.

Ruling –
MPHS’ motion for summary adjudication is denied.

MCA MOTION
MCA moves for summary judgment or summary adjudication of each claim.

Employment Relationship –
MCA moves for summary adjudication of Plaintiffs’ FEHA claims (1st – 5th COAs), on the ground that Plaintiffs were not employed by MCA.

Like MPHS, MCA has presented evidence that Plaintiffs were formally employed by Community Hospital. As discussed in the ruling on MPHS’ motion, there are triable issues as to whether MPHS is a joint employer of the Plaintiffs.

There are also triable issues as to whether MCA is a joint employer of the Plaintiffs because of its close relationship with MPHS. There is evidence that MPHS and MCA are related entities which operate from the same business address and have common management, ownership and control. MPHS and MCA have both been identified as the employer of Kohl, and the names of both companies appear on their literature – both generally and for Community Hospital.

Summary adjudication of this issue is denied.

Employment or Control of Kohl –
MCA moves for summary adjudication of Plaintiffs’ claims in the 6th – 8th causes of action, on the ground that MCA did not employ, supervise or control the work of Kohl.

MCA has argued that Kohl was not employed by MCA and was not subject to its supervision or control. For the same reasons discussed above, there are triable issues as to whether MCA was a joint employer which was responsible for Kohl’s conduct. Summary adjudication of this issue is denied.

Ruling –
MCA’s motion for summary judgment/adjudication is denied.