Case Name: Moore v. Advanced Med LLC, et al.
Case No.: 18CV321882

Defendant Good Samaritan Health System Limited Partnership (“Good Samaritan”) demurs to the Second Amended Complaint (“SAC”) filed by plaintiff Paul Moore (“Plaintiff”).

I. Factual and Procedural Background

This action arises out of an alleged wrongful termination. According to the allegations of the operative SAC, Plaintiff was sourced by defendant Advanced Med, LLC (“Advanced Med”) to be a traveling Registered Nurse (“RN”) for Good Samaritan Hospital in Northern California in March 2017. (SAC, ¶ 11.) Plaintiff worked at Good Samaritan until July 2017 and considered himself an employee of Good Samaritan during that time. (Id., ¶¶ 14-20.)

On July 19, 2017, Plaintiff received a letter from Advanced Med informing him that his employment relationship with Good Samaritan was being terminated following an incident between Plaintiff and a Respiratory Therapist (“RT”) at Good Samaritan on July 9th or 10th. (SAC, ¶ 22.) While assigned to care for a severely distressed patient, Plaintiff called the onsite RT to investigate a potential issue with an automatic respiration machine being used to treat the patient. (Id., ¶ 24.) After she finished the tasks she was called to perform, the RT began attempting to provide a form of care that she was not licensed or trained to provide. (Id., ¶ 25.) Recognizing this, and believing that his patient required different care, Plaintiff requested that the RT cease her efforts. (Id., ¶¶ 26-27.) After the RT refused, and upon observing the patient’s agitation, Plaintiff told the RT something to the effect of “do not waste your breath.” (Id., ¶ 27.) The RT left shortly thereafter. (Id.)

Plaintiff considered the foregoing incident to have been resolved when the RT left, however, his comment to the RT was relayed to his supervisors at Good Samaritan. (SAC, ¶ 29.) Good Samaritan than communicated the incident to its travelling nurse oversight organization, defendant HealthTrust, who was responsible for the oversight of RNs such as Plaintiff. (Id.) HealthTrust claimed to have investigated the incident and the appropriate clinical standards of care, and based on its review and whatever was communicated back to Good Samaritan, Good Samaritan made the decision to terminate Plaintiff’s employment. (Id., ¶ 30.) Good Samaritan than relayed the decision to Advanced Med. (Id.)

Following his termination, Plaintiff engaged Advanced Med to secure further nursing employment in California. (FAC, ¶ 31.) The company submitted his candidacy to other hospitals in the state but was informed that HealthTrust and/or Good Samaritan were not willing to consider him, even though he was submitting his candidacy with other distinct but related hospitals, thus blackballing him from a large sector of employment. (Id.)

Based on the foregoing, Plaintiff filed his First Amended Complaint (“FAC”) on May 31, 2018, asserting claims for: (1) breach of employment contract (against Advanced Med); (2) wrongful termination in violation of public policy (against Advanced Med and Good Samaritan); (3) whistleblower retaliation and termination (Labor Code § 1102.5) (“Section 1102.5”) (against Advanced Med and Good Samaritan); (4) blackballing (against Good Samaritan and HealthTrust); (5) defamation (against Good Samaritan and HealthTrust); and (6) intentional interference with contractual relations (against Good Samaritan and HealthTrust).

In October 2018, Good Samaritan and HealthTrust each demurred to the FAC. In particular, Good Samaritan demurred to the second, third, fourth and sixth causes of action on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Pro., § 430.10, subd. (e).) The demurrer was sustained without leave to amend as to the sixth cause of action and sustained with leave to amend as to the second, third and fourth causes of action.

On October 16, 2018, Plaintiff filed the SAC, asserting the following causes of action: (1) breach of employment contract; (2) wrongful termination in violation of public policy (“Tameny claim”); and (3) defamation per se. On March 8, 2019, Good Samaritan filed this demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff opposes the motion.

II. Good Samaritan’s Demurrer

Good Samaritan advances the following two arguments: first, that it was never Plaintiff’s employer and therefore he cannot state a Tameny claim against it, and second, that Plaintiff has failed to identify support, i.e., a statute or regulation, that can support the public policy he claims his termination violated.

With regard to the first argument, Good Samaritan is correct that a Tameny claim depends upon the existence of an employer-employee relationship. (See Weinbaum v. Goldfarb, Whitman & Cohen (1996) 46 Cal.App.4th 1310, 1315 [explaining that “[T]he duty on which the tort is based is a creature of the employer-employee relationship, and the breach of that duty is the employer’s improper discharge of an employee otherwise terminable at the will or whim of the employer”].) However, contrary to Good Samaritan’s assertions, Plaintiff did not previously plead that he was an employee of Advanced Med and not Good Samaritan. In fact, he alleged in the FAC that he maintained an employment relationship with both Advanced Med and Good Samaritan, i.e., that they were joint employers. As the Court explained in its prior order on Good Samaritan’s demurrer to the FAC, joint employment is recognized under California law, and is defined as occurring “when two or more persons engage the services of an employee in an enterprise in which the employee is subject to the control of both.” (In-Home Supportive Services v. Workers’ Comp. Appeals Board (1984) 152 Cal.App.3d 720, 732.) Plaintiff has pleaded various facts relating to the purported level of control that Good Samaritan maintained over him in the performance of his job such that it qualified as his employer. Whether or not these assertions are true and Good Samaritan actually qualified as his employer during his employment at the hospital is a factual issue to be determined later. (See Beaumont-Jacques v. Farmers Group, Inc. (2013) 217 Cal.App.4th 1138, 1142.) Thus, the argued lack of an employer-employee relationship between Plaintiff and Good Samaritan does not provide a basis upon which to sustain the demurrer.

Good Samaritan’s second argument was previously raised in its demurrer to Plaintiff’s Tameny claim in the FAC, with the defendant maintaining that Plaintiff failed to plead facts which demonstrated that his termination violated a recognized public policy.

As explained in the preceding order, the nature of a Tameny claim can be summarized thusly: while an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or purpose that contravenes fundamental public policy.” (Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1094.) The employer’s obligation to refrain from discharging an employee in such a manner does not depend on the terms, express or implied, of the employment contract; rather, it reflects a duty imposed by law on all employers. (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 174-175.) In order to plead such a claim, a plaintiff must allege the following: (1) the existence of an employer-employee relationship between the plaintiff and defendant; (2) the employer terminated the plaintiff’s employment; (3) the termination was substantially motivated by a violation of public policy; and (4) the discharge caused the plaintiff harm. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.) Good Samaritan’s argument is aimed at the third element of this cause of action.

The existence of a pertinent public policy is crucial to a Tameny claim, and a four-part test is utilized to determine whether a particular policy can support a common law wrongful discharge claim. (Stevenson v. Superior Court (1997) 16 Cal.4th880, 894.) The policy in question must be: (1) based on either a constitutional or statutory provision (or ethical rules of regulations enacted under statutory authority); (2) “public” in the sense that it “inures to the benefit of the public” rather than merely serving the interests of the individual; (3) well established at the time of the discharge; and (4) substantial and fundamental. (Id.) Here, as in the FAC, the statutory basis of the public policy claimed by Plaintiff to have been violated by his termination is Business and Professions Code section 2725 (“Section 2725”), which describes, among other things, the scope of practice for Registered Nurses (“RNs”). Plaintiff maintains that this code section supports the public policy for RNs to “competently oversee the care of their assigned patients” and alleges that he was terminated for ailing to render medical care than fell below the competent standards of care mandated by public policy and statute. (Id., ¶¶ 38, 41.)

“[T]he cases in which violations of public policy are found generally fall into four categories: (1) refusing to violate a statute; (2) performing a statutory obligation; (3) exercising a statutory right or privilege; and (4) reporting an alleged violation of a statute of public importance.” (Gantt v. Sentry Ins., supra, 1 Cal.4th at 1090-1091; see, e.g., Nosal-Tabor v. Sharp Chula Vista Med. Ctr. (2015) 239 Cal.App.4th 1224, 1238-1239; Ferrick v. Santa Clara Univ. (2014) 231 Cal.App.4th 1337, 1345-1347.) A Tameny claim has been found to exist where a medical employee is terminated or otherwise penalized for “advocating for medically appropriate healthcare” for his or her patient, i.e., the second of the four aforementioned categories. (See, e.g., Khajavi v. Feather River Anesthesia Med. Group (2000) 84 Cal.App.4th 32, 51; see also Sarka v. Regents of Univ. of Calif. (2006) 146 Cal.App.4th 261, 271-274.) As the Court opined previously, this is the type of Tameny claim that Plaintiff appears to be attempting to assert here. However, the Court held that Plaintiff was unsuccessful in doing so, as he had not pleaded in the FAC that he was he was terminated for advocating certain care, but instead that he was terminated for opposing care by an RT that he believed was inappropriate and outside the scope of her responsibilities. It was also not clear to the Court how the RT’s actions as alleged in the FAC had violated Section 2725, the statutory basis of the public policy connected to his Tameny claim. Plaintiff was permitted leave to amend to correct these deficiencies.

In the SAC, the basis of Plaintiff’s Tameny claim is still his refusal to abide by suggestions made by the RT for the care of their patient, suggestions that Plaintiff maintains fell below the competent standard of care for his position. Plaintiff argues that these allegations are sufficient, in concert with the public policy stated by Section 2725, to state a claim for wrongful termination in violation of public policy.

This Court acknowledges that section 2725 has previously been held to state a sufficiently well-established, substantial and fundamental public policy to support a Tameny claim. In Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, a RN sued the medical center she previously worked at for wrongful termination after she was fired for refusing to conduct nurse-led cardiac stress testing that she believed constituted the illegal practice of medicine and lacked necessary guidelines for nurses to perform it. Among other things, the RN claimed that the termination of her employment violated the public policy embodied in Section 2725. The trial court granted the defendant’s motion for summary judgment based on its conclusion that no public policy was stated in the code section (among other statutes cited by the plaintiff) and that it merely adopted the requirement for standardized procedures.

The appellate court reversed, first going into a detailed discussion of the purpose of Section 2725 which, as stated above, is to define the legal scope of nursing, and its legislative history. The court explained that the section was part of a “larger scheme of licensing statutes and regulations that govern the practice of medicine and nursing, whose purpose is to protect the public.” (Nosal-Tabor v. Sharp Chula Vista Medical Center, 239 Cal.App.4th at 1239.) It then concluded that the plaintiff had adequately identified a fundamental public policy on which to base her wrongful termination claim by “claiming that her employment was terminated for refusing to perform acts that were unlawful under [Section 2725] ….” (Nosal-Tabor, supra, 239 Cal.App.4th at 1239.) Plaintiff argues that that he was terminated as a result of advocating for medically appropriate care and thus that Nosal-Tabor is therefore instructive.

The Court agrees with Good Samaritan that the facts of Nosal-Tabor are distinguishable from those in the case at bar. Unlike the RN plaintiff in Nosal-Tabor, Plaintiff in this action has not demonstrated that he was terminated for refusing to perform acts that are expressly defined as unlawful under Section 2725. Nor has he identified any statute that expressly prohibits the type of practices that the RT proposed and endorsed during the subject patient interaction which he opposed. Plaintiff also cannot state a Tameny claim based on his assertions that he was fired for refusing to breach the general standard of nursing care as, again, the predicate public policy of such a claim must be based on specific constitutional, statutory or regulatory authority. (See Stevenson v. Superior Court, supra, 16 Cal.4th at 889-890.) Plaintiff has not identified a specific source for this general standard of care outside of Section 2725, which does not support his claim. Ultimately, what Plaintiff has alleged amounts to a termination after a disagreement over patient care between himself and the RT. He has not identified a well-established, substantial and fundamental public policy that was violated by his firing. Consequently, Good Samaritan’s demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.