Case Number: BC649663 Hearing Date: June 28, 2018 Dept: A

# 5. Alcaraz v. Martin Luther King, Jr. Community Hospital et al.

Case No.: BC649663

Matter on calendar for: hearing on demurrer

Tentative ruling:

I. Background

This action arises out of the care and treatment plaintiff Mercedes Alcaraz received at defendant Martin Luther King Jr. Community Hospital on April 21, 2016. The moving party is defendant and cross-defendant Fastaff, LLC, which was added as doe 2 on August 3, 2017, concurrently with the filing of the First Amended Complaint (“FAC”). The FAC alleges that Alcaraz taken to a hospital room by a female nurse (Elizabeth McCarthy, Doe 1) who made Alcaraz lie down and then vaginally penetrated Alcaraz with her fingers. Alcaraz repeatedly asked the nurse to stop, to no avail, and the assault continued for several minutes. (FAC ¶ 7.) McCarty was an agency nurse on assignment for Fastaff.

Alcaraz brings causes of action (“CoA”) for:

(1) Gender violence. Violation of Civil Code Section 52.4

(2) Assault and battery

(3) Assault and sexual battery violation of Civil Code § 1708.5

(4) Negligent supervision, hiring, and retention

(5) Intentional infliction of emotional distress

(6) Negligent infliction of emotional distress

(7) Violation of Civil Code Sections 51.7 and 52

Fastaff demurs to all causes of action. Alcaraz opposes.

II. Standard

A. Demurrer

Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P. § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal. App. 4th 1112, 1126.) In ruling on a demurrer, the Court shall accept all material allegations in the Complaint as true. (Blank v. Kirwan (1985) 39 Cal. App. 3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal. App. 4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal. App. 4th 39, 43.)

A plaintiff must allege the “essential facts… with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal. App. 2d 636, 643-644.)

Under C.C.P. § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are confusing and do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal. App. 3d 135, 139, fn. 2.)

B. Motion to strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (C.C.P. § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (C.C.P. §436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (C.C.P. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (C.C.P. § 437.)

III. Analysis

A. Vicarious liability for intentional sexual torts

An employer is “vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hosp. (1995) 12 Cal. 4th 294, 296.) An employer is liable for the intentional torts of its employees if the tort is engendered by the employment; “the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee’s work.” (Id. at 297–298.) The tort must be a “generally foreseeable consequence of the activity.” (Rodgers v. Kemper Constr. Co., (1975) 50 Cal. App. 3d 608, 618.)

In Lisa M., supra, 12 Cal. 4th 294, an ultrasound technician molested plaintiff with his fingers and an ultrasound wand. Although employment was the ‘but-for’ causation factor that made the encounter possible, the Court found “a technician simply took advantage of solitude with a naïve patient to commit an assault for reasons unrelated to his work . . . [t]he technician’s decision to engage in conscious exploitation of the patient did not arise out of the performance of the examination, although the circumstances of the examination made it possible.” (Lisa M., supra, 12 Cal. 4th at 301–302.)

The case here is similar to Lisa M. Alcaraz allegedly was taken to a private room and assaulted by the nurse. Although the nurse’s employment was the “but for” cause of the incident, the incident itself was not an outgrowth or engendered by the employment. The task itself did not provide the requisite opportunity for a work-related dispute or “any other work related emotional involvement with the patient.” (Id. at 301.) In other words, the complaint lacks an alleged causal nexus between the tort and employment for vicarious liability.

Alcaraz’s causes of action 1, 2, 3, 5, and 7 are based on Fastaff’s vicarious liability for Nurse McCarthy’s actions. The demurrer is sustained as to these causes of action with leave to amend.

B. Negligent hiring and supervision

Liability for negligent hiring and supervision is “based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal. App. 4th 1038, 1054.) The rule applies to negligent supervision as well. (Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 240.) Alcaraz alleges that Fastaff breached its duty of care by failing to provide a chaperone during the vaginal examination and that such supervision would have and is designed to prevent the tort. (Complaint ¶¶ 33–42.) Alcaraz has adequately pled a cause of action for negligent supervision.

The demurrer is overruled as to the 4th cause of action.

C. Negligent infliction of emotional distress (“NIED”)

NIED is not a separate tort; the tort is negligence. (Barker v. Fox & Associates (2015) 240 Cal. App. 4th 333, 356.) Here, it would be derivative of intentional tort liability (if sufficiently repleaded), or as parasitic to the negligent supervision claim. Alcaraz alleges that she has suffered and continues to suffer “anxiety, worry, embarrassment, humiliation, and mental anguish.” (Complaint ¶ 55.) Alcaraz has adequately pled severe emotional distress and the negligent supervision claim was sufficiently pleaded. The demurrer as to negligent infliction of emotional distress (CoA 6) is overruled.

D. Motion to strike

Fastaff moves to strike references to punitive damages, prejudgment interest, treble damages, and attorney’s fees and costs. The issues are moot except as to punitive damages.

California Civil Code § 3294 allows for punitive damages against an employer for actions of its employee if, by clear and convincing evidence, the employer is guilty of oppression, fraud, or malice. (Civ.C. § 3294) Malice is at issue here, and the code defines it as “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ.C. § 3294(c)(1)) As the court held in College Hospital v. Superior Court (1994) 8 Cal. 4th 704, 713, Civ.C. § 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. Regarding a corporation, “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ.C. § 3294(b)) A managing agent is a “person with general power involving the exercise of judgment and discretion.” (Black’s Law Dictionary).

In her opposition, Alcaraz argues that Fastaff ratified Nurse McCarthy’s behavior. (Opp. 7: 28.) This is not sufficient: Alcaraz must allege the ratification on the part of an officer, director, or managing agent of the corporation. (Civ.C. § 3294(b).) The motion to strike is granted in respect to punitive damages with leave to amend.

IV. Ruling

The Court sustains the demurrer to causes of actions 1, 2, 3, 5, and 7 with leave 20 days leave to amend. Any responsive pleading must be filed 20 days thereafter, or 25 if served by mail.

The Court overrules the demurrer to causes of action 4 and 6.

The Court grants the motion to strike as to punitive damages with leave 20 days leave to amend. Any responsive pleading must be filed 20 days thereafter, or 25 if served by mail.

Next dates: Status conference 7/9/18; FSC 1/28/19; JT 2/4/19