2018-00230244-CU-PO

Joanne Davis vs. Advanced Pain Diagnostic & Solutions, Inc.

Nature of Proceeding: Hearing on Demurrer

Filed By: Broome, Easton

Defendant Derrick Mullin FNP’s (Nurse Mullin) demurrer to the first amended complaint (FAC) is SUSTAINED with leave to amend.

Overview

This case encompasses employment disputes and a dispute between a patient and healthcare providers. The plaintiffs are Joanne Davis (Davis), Mariah Florez (Florez) and Mary Tovar (Tovar) (collectively “Plaintiffs”). Davis alleges that Nurse Mullin and others provided her with pain management services. Florez and Tovar allege that Nurse Mullin was their coworker and supervisor. Nurse Mullin’s Co-Defendants are his most recent employers, Advanced Pain Diagnostic & Solutions, Inc. and Kayvan Haddadan, M.D.

According to Davis, Nurse Mullin grabbed her breasts during appointments. She also alleges that Nurse Mullin made telephonic and other graphic, unwanted sexual advances. In addition, she alleges that Nurse Mullin informed her that he knew where she lived, and that he would withhold her pain medication if she refused to submit to his sexual desires. Due to her financial situation, Davis had limited access to pain management services and feared that if she rejected Nurse Mullin and he withheld her medication, then she could be required to wait several months before receiving pain management at another facility. After Nurse Mullin threatened to withhold medication, he told Davis to remove her blouse, and he groped her breasts and genitals.

Davis alleges that at some point she learned about other female patients and employees whom Nurse Mullin had harassed.

Nurse Mullin allegedly sexually harassed Tovar and Florez as well.

Davis has pleaded causes of action against Nurse Mullin for sexual assault and battery as well as sexual harassment under CC §§ 51.9 and 53. Tovar and Florez have pleaded against Nurse Mullin a FEHA cause of action for sexual harassment.

Nurse Mullin now demurs on the ground of misjoinder. Plaintiffs oppose.

Discussion

The demurrer for misjoinder is sustained.

CCP § 378 governs permissive joinder of plaintiffs in a single action. That section provides in relevant part that “[a]ll persons may join in one action as plaintiffs if: (1) They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action[.]” Section 378 also provides that “[i]t is not necessary that each plaintiff be interested as to every cause of action[.]” Nurse Mullin argues that Plaintiffs are misjoined because the allegations against him do not arise out of the same transaction or series of transactions.

Moe v. Anderson (App. 3 Dist. 2012) 207 Cal.App.4th 826 controls the outcome. In Moe, the Court of Appeal decided that two patients suing the same doctor for sexual assaults occurring at different times could not join in a single lawsuit against him. ( Moe, pp. 827-828, 833-834.)

Plaintiffs attempt to distinguish Moe, but the distinctions tendered are immaterial. Plaintiffs argue that, unlike the plaintiffs in Moe, they are all witnesses to Nurse Mullin’s harassment. That Plaintiffs might serve as common witnesses, however, does not establish that they possess rights to relief involving the same transaction or series of transactions, as required under § 378.

Plaintiffs also suggest that their claims against Nurse Mullin are properly joined because the harassment occurred in a single location pursuant to “an ongoing pattern [.]” (Opp. at 9:15-20.) The Moe court considered and rejected similar arguments. (See Moe, pp. 829-830, 834.)

In the alternative, Plaintiffs suggest that the court may overrule the demurrer given the absence of prejudice to Nurse Mullin. CCP § 378 does not enumerate prejudice as a factor material to the issue of permissive joinder. Given this, and given the close factual similarities between this case and Moe, the court rejects the asserted absence of prejudice as a basis on which to overrule the demurrer.

Because this is Nurse Mullin’s first objection to the allegations, the court grants Plaintiffs leave to amend (as against him only).

Disposition

The demurrer for misjoinder is sustained with leave to amend.

No later than 3/04/19, Plaintiffs may file and serve a second amended complaint (SAC) in an attempt to establish a basis for joining their causes of action against Nurse Mullin in a single lawsuit; response(s) due within 30 days thereafter, 35 days if the SAC is served by mail.

Although not required by any statute or rule of court, Plaintiffs are requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.

If any defendant intends to demur to the SAC or move to strike, it shall determine if any other defendant who has appeared in this action also intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for the demurrers and motions to strike. Additionally, a copy of the SAC shall be included with the moving papers.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.