Case Name: Lisa Landry v. AMN Healthcare, Inc., et al.

Case No.: 16CV302539

Defendant AMN Healthcare, Inc.’s Demurrer to Plaintiff’s Complaint

Factual and Procedural Background

On or about November 16, 2014, plaintiff Lisa Landry (“Landry”) went to defendants Kaiser Foundation Hospitals and Northern California Permanente Medical Group, Inc. (collectively, “Kaiser”) to undergo a surgical procedure. (Complaint, ¶12.) Defendant Kaiser’s anesthesiologist, Julia Lee (“Lee”), placed plaintiff Landry under general anesthesia prior to surgery. (Complaint, ¶13.) Lee did not remain with plaintiff Landry for the entire pre-operation duration. (Id.)

Defendants AMN Healthcare, Inc. and American Mobile Healthcare (collectively, “AMN Healthcare”) and Kaiser employed, hired, contracted, or granted hospital privileges to defendant Cecil Webb, Jr. (“Webb”) to work at Kaiser as medical personnel. (Complaint, ¶¶7 and 11.)

On or about November 16, 2014, defendant Webb was assigned as one of plaintiff Landry’s nurses. (Complaint, ¶14.) While plaintiff Landry was awaiting to undergo surgery in Kaiser’s pre-operation room, defendant Webb entered the room and applied compression wraps on plaintiff Landry’s legs. (Complaint, ¶15.) During this process, defendant Webb rubbed and groped plaintiff Landry’s legs, eventually moving his hand up her legs and cross her vagina. (Id.) All this conduct was unwanted and without plaintiff Landry’s consent. (Id.) Defendant Webb also made offensive, harassing, and inappropriate comments to plaintiff Landry and gave plaintiff Landry seductive looks. (Id.) At this time, plaintiff Landry was wearing nothing but a hospital gown. (Id.) Shortly after, another male nurse (“Eric”) entered the room causing defendant Webb to stop his inappropriate conduct. (Complaint, ¶16.)

Prior to plaintiff Landry being brought into the operating room, defendant Webb pretended to check the wires attached to plaintiff Landry’s chest. (Complaint, ¶17.) Defendant Webb proceeded to reach under plaintiff Landry’s gown and grabbed plaintiff Landry’s right breast. (Id.) Defendant Webb’s conduct was unwanted and without plaintiff Landry’s consent. (Id.)

Because plaintiff Landry was under general anesthesia, plaintiff Landry was unable to vocally or physically stop defendant Webb from inappropriately molesting, battering, assaulting, and inappropriately touching her. (Complaint, ¶18.) Defendant Webb wheeled plaintiff Landry to the operative room and said they would “take the scenic route.” (Complaint, ¶19.) This frightened plaintiff Landry because she believed defendant Webb would take her to another location and assault her further. (Id.) Plaintiff Landry tried to protest but could not speak because she was heavily sedated. (Id.)

On November 25, 2014, plaintiff Landry met with Officer Tony Parker at Santa Clara Police station to give a statement regarding defendant Webb’s inappropriate conduct at Kaiser on November 16, 2014. (Complaint, ¶20.) On or about January 6, 2015, Officer Parker took defendant Webb’s statement. (Complaint, ¶21.) Defendant Webb informed Officer Parker that he was fired from Dallas Medical Center in Dallas, Texas for “saying something inappropriate.” (Id.)

Defendants Kaiser and AMN Healthcare knew or should have known that defendant Webb was a danger to patients, failed to supervise defendant Webb thus providing defendant Webb with access to sexually fondle, molest, harass, assault and/or batter plaintiff Landry. (Complaint, ¶22.) Defendants Kaiser and AMN Healthcare failed to report defendant Webb’s conduct to the Department of Health Services. (Complaint, ¶24.)

On November 10, 2016, plaintiff Landry filed a complaint against defendants AMN Healthcare, Kaiser, and Webb asserting causes of action for:

(1) Sexual Harassment in Violation of Civil Code §§51.9 and 52
(2) Negligence Per Se
(3) Negligent Hiring, Supervision and Retention [versus defendants Kaiser and AMN Healthcare]
(4) Intentional Infliction of Emotional Distress
(5) Negligent Infliction of Emotional Distress
(6) Sexual Battery [versus defendant Webb]

On January 19, 2018, defendant Kaiser filed its answer to plaintiff Landry’s complaint.

On February 28, 2018, defendant AMN Healthcare, Inc. (“AMN”) filed the motion now before the court, a demurrer to plaintiff Landry’s complaint.

I. Defendant AMN’s demurrer to the third cause of action [negligent hiring, supervision, and retention] is OVERRULED.

Defendant AMN contends the third cause of action asserted by plaintiff Landry for negligent hiring, supervision, and retention is barred by the statute of limitations set forth in Code of Civil Procedure section 340.5, which states, “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”

According to defendant AMN, plaintiff Landry discovered her injury no later than November 16, 2014 since she alleges she was aware of the wrongdoing by defendant Webb. Plaintiff Landry did not file her complaint until almost two years later on November 10, 2016, beyond the one year statute of limitation allowed by Code of Civil Procedure section 340.5.

In opposition, plaintiff Landry contends the one year statute of limitation imposed by Code of Civil Procedure section 340.5 does not apply to defendant AMN because it is not a “health care provider” as that term is defined.

“Health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. “Health care provider” includes the legal representatives of a health care provider.

(Code Civ. Proc., §340.5, subd. (1).)

By the plain language of the statute, the term “health care provider” extends not only to natural persons, but also to “any clinic, health dispensary, or health facility” and its “legal representatives.”

According to plaintiff Landry, defendant AMN is a healthcare staffing and management services company and does not come within the definition of a “health care provider.” However, as defendant AMN points out, plaintiff Landry’s own complaint alleges, in relevant part, “At all times herein relevant, AMN HEALTHCARE was a business entity partnered with KAISER to provide professional services to the public. At all times herein relevant, Defendants KAISER, AMN HEALTHCARE, and WEBB were and now are health organizations, physicians, registered nurses, medical corporations, surgeons, surgical nurses, technicians, office personnel, physical therapists, and paramedical professional, licensed by the State of California to practice their specialty in the said state, with offices located within the County of Santa Clara, State of California and each of them held him or herself out to the public, including PLAINTIFF, to possess that degree of skill, ability, and learning common to practitioners in said community.” (Complaint, ¶28.) In ruling on a demurrer, the court must accept the allegations as true. Plaintiff Landry is bound by its allegation that defendant AMN is a licensed health care provider.

Plaintiff Landry argues further that a claim for negligent hiring is not subject to Code of Civil Procedure section 340.5 because it is not based on AMN’s professional negligence.

“Professional negligence” means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.

(Code Civ. Proc., §340.5, subd. (2).)

Defendant AMN relies on Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 668 (So) where the court wrote, “Since hiring and supervising medical personnel, as well as safeguarding incapacitated patients, are clearly within the scope of services for which the hospital is licensed, its alleged failure to do so necessarily states a claim for professional negligence.” The So court began with the undisputed principle,

that the hospital is a health care provider, and providing inpatient care for a postsurgical patient is “clearly ‘within the scope of services for which [a] hospital is licensed.’ (See Health & Saf.Code, § 1250.) In providing inpatient care, a hospital has a duty to ‘exercise such reasonable care in treating a patient as [her] known condition may require.’ (Valentin v. La Societe Francaise (1946) 76 Cal.App.2d 1, 6 [172 P.2d 359].) Otherwise stated, a hospital has a duty ‘to use reasonable care and diligence in safeguarding a patient committed to its charge [citations] and such care and diligence are measured by the capacity of the patient to care for [herself].’ (Thomas v. Seaside Memorial Hospital (1947) 80 Cal.App.2d 841, 847 [183 P.2d 288].)” (Murillo, supra, 99 Cal.App.3d at p. 55, 160 Cal.Rptr. 33.)

(So, supra, 212 Cal.App.4th at p. 668.)

The distinction here is that defendant AMN is not a hospital. Despite the allegation that AMN is a licensed health care provider, there are also other allegations in the complaint supporting AMN’s assertion now that it was merely a staffing agency and that Kaiser is the hospital rendering professional services for which it is licensed. Specifically, at paragraph 11, the complaint alleges AMN contracted Webb to work at Kaiser as medical personnel.

In essence, plaintiff Landry contends defendant AMN is not rendering professional services whereas defendant AMN contends that it was rendering professional services. In view of this factual dispute and the ambiguity in the allegations, the court falls back on the principle that, “The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. [Citation.] If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment . . . .’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324 – 325.)

Since it does not appear clearly and affirmatively from the allegations of the complaint that the Code of Civil Procedure section 340.5 one year statute of limitations applies, defendant AMN’s demurrer to the third cause of action in plaintiff Landry’s complaint is OVERRULED.

II. Defendant AMN’s demurrer to the first cause of action [sexual harassment] is OVERRULED.

Defendant AMN demurs to plaintiff Landry’s first cause of action for sexual harassment by arguing, initially, that in spite of its title, the cause of action is premised on the same facts as the third cause of action, i.e., defendant AMN negligently hired, supervised, and/or retained defendant Webb. As such, defendant AMN contends this first cause of action is, like the third cause of action, based upon defendant AMN’s professional negligence and subject to a one year statute of limitations. However, as discussed above, even if the court construed the first cause of action to be based on the same factual allegations, it does not appear clearly and affirmatively that the Code of Civil Procedure section 340.5 one year statute of limitations applies.

Separately, defendant AMN demurs on the ground that it cannot be vicariously liable for the sexual misconduct of its employee. “Under the doctrine of respondeat superior, an employer is vicariously liable for his employee’s torts committed within the scope of the employment.” (Perez v. Van Groningen & Sons (1986) 41 Cal.3d 962, 967; see also CACI, No. 3700.) “Equally well established, if somewhat surprising on first encounter, is the principle that an employee’s willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 – 297 (Lisa M.).) “Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’” (Lisa M., supra, 12 Cal.4th at p. 299; see also CACI, Nos. 3720, 3722, and 3723.) Defendant AMN contends Webb was not acting in the course and scope of his employment when he engaged in the alleged misconduct. However, at the pleading stage, the court must accept the allegation that the “acts and omissions of WEBB … were performed within the course and scope of … AMN’s authorities.” (Complaint, ¶32; see also ¶9.)

Moreover, separate and apart from respondeat superior liability,

“ ‘[A]n employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual question. [Citation.]’ ” [Citation.]

(Ventura v. ABM Industries Incorporated (2012) 212 Cal.App.4th 258, 272.)

Here, allegations of ratification are found at paragraph 9 of the complaint and the court must accept them as true for purposes of demurrer.

As a further and separate basis for demurrer, defendant AMN contends the first cause of action fails because plaintiff Landry cannot make out a claim for sexual harassment pursuant to Civil Code section 51.9. Plaintiff Landry’s first cause of action is based upon a violation of the Unruh Civil Rights Act (“Unruh”) found in Civil Code §51, et seq. Specifically, Civil Code §51.9(a) states:

A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements:
(1) There is a business, service, or professional relationship between the plaintiff and defendant. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:
(A) Physician, psychotherapist, or dentist. [ ]
(B) Attorney, holder of a master’s degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer.
(C) Executor, trustee, or administrator.
(D) Landlord or property manager.
(E) Teacher.
(F) A relationship that is substantially similar to any of the above.
(2) The defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.
(3) There is an inability by the plaintiff to easily terminate the relationship.
(4) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct [ ].

Defendant AMN argues it cannot be liable under Civil Code section 51.9 because it is not a person. This is the same argument made and rejected by the court in C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110 where the court wrote,

Defendant argues that because it is a business, as opposed to an individual, it cannot be liable for the sexual abuse of plaintiff. Defendant relies on the language in section 51.9, subdivision (a) which states “a person is liable” for sexual harassment. Thus, defendant argues, because it is a corporation, it cannot be liable under the provisions of section 51.9 for sexual abuse. This contention has no merit. Section 14 states in part, “ ‘[T]he word “person” includes a corporation as well as natural person.’ ”

Defendant AMN argues further that the cause of action fails because there is no allegation of a “business, service, or professional relationship” between plaintiff Landry and defendant AMN such as the ones enumerated by Civil Code section 51.9. The enumerated relationships are not exclusive. As pointed out by plaintiff Landry, a qualifying relationship includes any “relationship that is substantially similar” to one of the enumerated relationships. Plaintiff Landry contends a nurse – patient relationship is substantially similar to a doctor – patient relationship. The court is receptive to plaintiff’s position.

Accordingly, defendant AMN’s demurrer to the first cause of action in plaintiff Landry’s complaint is OVERRULED.

III. Defendant AMN’s demurrer to the second cause of action [negligence per se] is SUSTAINED.

“Section 669 of the Evidence Code sets forth the doctrine commonly called negligence per se. It provides that negligence of a person is presumed if he violated a statute or regulation of a public entity, if the injury resulted from an occurrence that the regulation was designed to prevent, and if the person injured was within the class for whose protection the regulation was adopted. This presumption may be rebutted by proof that the violator did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” (Klein v. BIA Hotel Corp. (1996) 41 Cal.App.4th 1133, 1140.) Negligence per se is not a cause of action. “The negligence per se doctrine actually relates to the burden of proof.” (Cade v. Mid-City Hospital Corp. (1975) 45 Cal.App.3d 589, 596.) If the elements are met, the doctrine merely creates an evidentiary presumption in support of a claim for negligence.

“ ‘[T]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.’ [Citation.] [¶] The doctrine of negligence per se does not provide a private right of action for violation of a statute. [Citation.]” (Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 555–56.)

Since negligence per se is not a cause of action, defendant AMN’s demurrer to the first cause of action in plaintiff Landry’s complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

IV. Defendant AMN’s demurrer to the fourth cause of action [intentional infliction of emotional distress] is OVERRULED.

Defendant AMN demurs to plaintiff Landry’s fourth cause of action for intentional infliction of emotional distress by arguing, initially, that in spite of its title, the cause of action is premised on the same facts as the third cause of action, i.e., defendant AMN negligently hired, supervised, and/or retained defendant Webb. As such, defendant AMN contends this fourth cause of action is, like the third cause of action, based upon defendant AMN’s professional negligence and subject to a one year statute of limitations. However, as discussed above, even if the court construed the fourth cause of action to be based on the same factual allegations, it does not appear clearly and affirmatively that the Code of Civil Procedure section 340.5 one year statute of limitations applies.

Defendant AMN demurs further on the ground that plaintiff Landry has not stated a claim for intentional infliction of emotional distress because she has not alleged extreme or outrageous conduct by defendant AMN.

“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran); see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744 – 745; see also CACI, Nos. 1600 and 1602.)

“There is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical.” (Cochran, supra, 65 Cal.App.4th at p. 494.) “Even so, the appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Id.) The Cochran court went on to state, “the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.” (Id. at p. 496.) “In evaluating whether the defendant’s conduct was outrageous, it is not enough that the defendant has acted with an intent which is tortious or even criminal.” (Id.)

In opposition, plaintiff Landry focuses on the conduct of defendant Webb to argue that Webb’s conduct is sufficiently extreme or outrageous. Plaintiff Landry then points out that it seeks to hold defendant AMN vicariously liable for Webb’s misconduct. As discussed above, there are allegations in plaintiff Landry’s complaint which seek to hold defendant AMN liable for defendant Webb’s outrageous conduct under a theory of ratification. Those allegations are expressly incorporated into plaintiff Landry’s fourth cause of action. (See Complaint, ¶¶9 and 61.) Consequently, there is a factual basis defendant AMN’s liability on this fourth cause of action.

Accordingly, defendant AMN’s demurrer to the fourth cause of action in plaintiff Landry’s complaint is OVERRULED.

V. Defendant AMN’s demurrer to the fifth cause of action [negligent infliction of emotional distress] is OVERRULED.

Defendant AMN demurs to plaintiff Landry’s fifth cause of action for intentional infliction of emotional distress by arguing, initially, that in spite of its title, the cause of action is premised on the same facts as the third cause of action, i.e., defendant AMN negligently hired, supervised, and/or retained defendant Webb. As such, defendant AMN contends this fifth cause of action is, like the third cause of action, based upon defendant AMN’s professional negligence and subject to a one year statute of limitations. However, as discussed above, even if the court construed the fifth cause of action to be based on the same factual allegations, it does not appear clearly and affirmatively that the Code of Civil Procedure section 340.5 one year statute of limitations applies.

Accordingly, defendant AMN’s demurrer to the fifth cause of action in plaintiff Landry’s complaint is OVERRULED.