34-2012-00126573

Kevin Lewis vs. Kaiser Foundation Hospital

Nature of Proceeding: Motion for Summary Judgment (as to Claims of Anthony Jackson)

Filed By: Freeman, Kerry McInerney

On February 20, 2014, the court affirmed its tentative ruling granting in part and
denying in part the motion of Defendants The Permanente Medical Group (“TPMG”)
and Kaiser Foundation Hospital (“Kaiser”) (collectively “Defendants”) for summary
judgment/summary adjudication of Plaintiff Kevin Lewis’ causes of action and claims
for punitive damages in the first amended complaint (“FAC”). The court REAFFIRMS
that order in its entirety.
On November 13, 2013, the court affirmed its tentative ruling granting Defendants’
motion for summary judgment/summary adjudication as to Plaintiff Anthony Jackson
(“Jackson”). On February 20, 2014, the court informed the parties that it was
considering vacating the portion of the 11/13/13 order granting Kaiser’s request for
summary adjudication of Jackson’s claim for punitive damages. The court directed the
parties to file supplemental briefs on the narrow question whether Kaiser produced
sufficient evidence to demonstrate the nonexistence of any triable issue of material
fact as to Jackson’s punitive damages claim. The court further directed the parties to
assess the sufficiency of Kaiser’s evidence in light of Davis v. Kiewit Pacific Co. (2013)
th
220 Cal.App.4 358.

The court now VACATES the portion of its 11/13/13 order granting summary
adjudication of Jackson’s punitive damages claim against Kaiser and DENIES that
portion of the motion instead.

As the parties are aware, the court’s review of Davis led it to reconsider its order
granting summary adjudication of Jackson’s punitive damages claim against Kaiser.
Among other things, the Davis court held that conclusory testimony that a corporate
employee is not a managing agent of the corporation, combined with evidence that the
employee merely enforces corporate policies, is not sufficient to demonstrate the
nonexistence of any triable issue whether the employee is a managing agent within the
th
meaning of the punitive damages provisions at CC § 3294(b). (See 220 Cal.App.4 at
367, 369-370.) A corporate employer moving for summary adjudication of a punitive
damages claim must “describe its employee’s job duties and responsibilities and the
nature and extent his authority and discretion…as well as his exercise of that authority
and discretion, to support a reasonable inference he did not exercise substantial
discretionary authority over significant aspects of the [employer’s] business.” (Id. at
370 [italics and some brackets omitted] [ellipsis and some brackets added].)

Like the corporate employer in Davis, Kaiser failed to produce sufficient evidence to
support a reasonable inference that all of its employees alleged to have played a role
in the misconduct against Jackson were not managing agents. (See Undisputed
Material Fact (“UMF”) 3 in Sep. Stmt. of 07/03/13.) For example, Kaiser’s evidence
that its employee, Environmental Services Assistant Manager Geffery Triano, was not
a managing agent is Triano’s testimony that: (1) “I have no discretionary authority over
decisions that ultimately determined Kaiser’s corporate policy” and (2) “I am
responsible for enforcing applicable Kaiser policies with regard to those who report to
me in the EVS department of Kaiser’s Sacramento facility.” (See UMF 107; Triano
Decl., ¶ 3.) This evidence is conclusory and does little if anything to establish the
extent of Triano’s authority or discretion.

Although Kaiser does not cite other assertions in Triano’s declaration as evidence that
he was not a managing agent, the court’s review of Triano’s complete declaration does
not alter the its conclusion. Beyond the assertions cited in the preceding paragraph,
Triano asserts that (a) he supervised Anthony and Lewis, (b) he suspended Jackson
once, (c) he was asked to investigate an incident potentially requiring discipline to be
imposed on Jackson (Manager Doran Reynolds was unable to conduct the
investigation because he was a witness to the incident), and (d) he investigated and
resolved workplace incidents involving Jackson and his co-workers. (Triano Decl., ¶¶
4-14.) Although this evidence gives some insight into Triano’s job duties and authority,
it does nothing to establish the limits of his discretion or authority. Because the limits upon a corporate employee’s discretion and authority are the linchpin of an inquiry into
the employee’s status as a managing agent under CC § 3294(b), Triano’s testimony
does not demonstrate the nonexistence of any triable issue of material fact.

Kaiser has also failed to produce evidence sufficient to demonstrate that EVS
Supervisor Doug Kilner is not a managing agent. (See UMF 107; Kilner Decl.)
Although some of the assertions in the Kilner Declaration differ from those in the
Triano Declaration, the Kilner Declaration relies on conclusory assertions and
assertions that do not establish the limits of Kilner’s discretion and authority.

Accordingly, Kaiser’s request for summary adjudication of Jackson’s punitive damage
claim must be denied. (The court notes that the evidence supporting Kaiser’s request
for summary adjudication of Jackson’s punitive damages claim also supported its
request for summary adjudication of Lewis’ punitive damages claim.)

In reaching its conclusion, the court rejects Kaiser’s recently adopted position that, to
meet its initial burden of production in its motion directed at Jackson, it was only
required to produce evidence precluding an inference that Reynolds was a managing
agent. In its moving separate statement of 07/03/13, Kaiser acknowledged that it was
required to producing evidence relative to several other employees. (See UMF 3,
107.) Having inserted into its separate statement evidence designed to demonstrate
that employees other than Reynolds were not managing agents, the court will not
entertain Kaiser’s subsequent, contrary argument that such evidence is somehow
immaterial to the outcome of the motion. (See Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 252 [citing Weil & Brown, Civ. Proc. Before Trial, (Rutter 2011)
Ch.10:95.1]; see also Weil & Brown, Civ. Proc. Before Trial (Rutter 2013) Ch.
10:95.1].)

The court likewise rejects Kaiser’s argument that, because all its employees other than
Reynolds were of inferior rank to Reynolds, there can be no dispute whether any of
them were managing agents.

The determination whether employees act in a managerial capacity [i.e.,
are managing agents] does not necessarily hinge on their ‘level’ in the
corporate hierarchy. Rather, the critical inquiry is the degree of discretion
the employees possess in making decisions that will ultimately determine
corporate policy.

(White v. Ultramar (1999) 21 Cal.4th 563, 574 [some brackets omitted].) Hence,
evidence that such other employees were subordinate to Reynolds, whom Kaiser
asserts was not a managing agent, does not preclude an inference that such
employees were managing agents.

Kaiser’s request for judicial notice of the facts that it is a “very large company,” that
operates “a significant number of medial centers,” that it provides health care to a
“large” number of members, and that it employs a “large” number of employees is
DENIED. Kaiser’s further request for judicial notice that housekeeping is “only one of
countless services Kaiser performs” is also DENIED.

Because the court concludes that its order granting summary adjudication of Jackson’s
punitive damage claim against Kaiser must be vacated given Kaiser’s failure to meet
its initial burden of production, the court need not address and does not address Kaiser’s arguments that, assuming it met its initial burden of production, Jackson’s
evidence does not reveal a triable issue.

Conclusion

The court’s order of 02/20/14 granting in part and denying in part Defendants’ motion
for summary judgment/summary adjudication of Lewis’ causes of action and claims for
punitive damages is REAFFIRMED.

The portion of the court’s 11/13/13 order granting summary adjudication of Jackson’s
claim for punitive damages against Kaiser is VACATED and REPLACED with an order
DENYING summary adjudication of the claim for punitive damages. The balance of
the 11/13/13 order remains in effect.

Pursuant to CRC 3.1312, Defendants are directed to lodge for the court’s signature (1)
a formal order on the motion against Lewis, (2) a formal order on the motion against
Jackson, (3) a judgment in favor of TPMG as against Lewis, and (4) a judgment in
favor of TPMG as against Jackson.