BRIDGET HUGHES VS. SOUTHERN CALIFORNIA PERMANENTE MED GROUP

Tentative Rulings

Case Number: ****6609    Hearing Date: January 28, 2020    Dept: SEC

HUGHES v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP

CASE NO.: ****6609

HEARING:  01/28/20

JUDGE: MARGARET M. BERNAL

TENTATIVE ORDER

I. Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’s motion to compel Plaintiff BRIDGET HUGHES’s mental examination is GRANTED.

II. Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’s motion to compel Plaintiff BRIDGET HUGHES’s authorization for the release of medical records is DENIED.

History

Plaintiff Bridget Hughes (“Plaintiff”) was employed by Defendant Southern California Permanente Medical Group (“Defendant”) from on or about February 1, 2010 to July 20, 2015. On or before July 20, 2015, Defendant alleged that Plaintiff falsified the educational history on her employment application. Defendant placed Plaintiff on paid suspension while Defendant conducted an investigation as to whether Plaintiff violated Defendant’s company policy, procedures, or other standards or rules.

While on administrative leave, Plaintiff exercised medical leave through California Family Rights Act (“CFRA”) and Family Medical Leave Act (“FMLA”) due to medical disability, and scheduled it to end on November 10, 2015, providing notice to Defendant. On September 30, 2015, while on medical leave, Plaintiff received notice from Defendant that she was terminated based upon falsification of records.

On September 27, 2017, Plaintiff filed the complaint against Defendant for: (1) retaliatory termination in violation of CFRA, California Government Code ; 12945.2, for requesting and going on medical leave; (2) wrongful termination and discrimination in violation of public policy; CFRA, CA Gov. Code ; 12945.2; Ely v. Wal-Mart; (3) disability discrimination in violation of FEHA, CA Gov. Code ; 12940(a); (4) failure to provide reasonable accommodation under CA Gov. Code ; 12940(m); (5) failure to engage in the interactive process under CA Gov. Code ; 12940(n); (6) failure to prevent discrimination in violation of FEHA, CA Gov. Code ; 12940(k), et seq.; (7) retaliation in violation of FEHA, CA Gov. Code ; 12940(h); and (8) wrongful termination and discrimination in violation of public policy based on FEHA and Petermann v. International BD.

On January 17, 2020, Defendant filed the instant motion to compel Plaintiff’s mental examination and authorization for the release of medical records.

Legal Standard

California Code of Civil Procedure section 2032.310 provides, in relevant part that:

(a) If any party desires to obtain . . . by a mental examination, the party shall obtain leave of court.

(b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040 .

(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.

Code of Civil Procedure section 2032.020(a) provides, in relevant part, that:

(a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action.

A party who chooses to allege that he has mental and emotional difficulties places his own mental state in controversy. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.)

California Code of Civil Procedure section 2032.320(a) provides, in relevant part, that:

(a) The court shall grant a motion for physical or mental examination under Section 2032.310 only for good cause shown.

The California Supreme Court has defined a showing of ‘good cause’ as requiring that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.)

Motion to Compel Plaintiff’s Mental Examination

Here, Defendant argues that Plaintiff’s mental, emotional, and physical condition are in controversy. In the complaint, Plaintiff seeks to recover damages for alleged emotional injuries caused by Defendant. (Complaint at p. 6.) Plaintiff alleges that Defendant’s actions caused her to suffer "humiliation, emotional distress, and mental and physical pain and anguish, including difficulty concentrating and sleeping, loss of appetite, and depression.” (Id.) Further, in Plaintiff’s deposition she testified that she was diagnosed with a pre-existing emotional condition. In January 2014, a year and a half prior to Plaintiff’s termination, she was diagnosed with post-traumatic stress disorder, anxiety, and depression, for which she is still being treated and was prescribed antidepressant medication. (Rossiter Decl., Ex. C at 252:15-17; 254:8-23; 273:17-20.) Plaintiff also testified that she suffers from emotional distress, including panic attacks, depression, and hypertension related to the allegations raised in the action. (Id. at 251:2-18.) Therefore, Plaintiff’s mental and emotional condition are in controversy and subject to discovery.

Plaintiff opposes the instant motion on procedural grounds, alleging that Defendant’s motion is defective for lack of proper notice and lack of separate statement. (Opposition at p. 2.) In regard to the separate statement requirement, Plaintiff cites Cal. Rules of Court, Rule 3.1345(a)(6)(a): ”Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: (6) For medical examination over objection.” Plaintiff argues that the requirement for Defendant to file a separate statement is applicable even though Plaintiff did not file an objection to the medical examination, because Defendant never served a “proposed notice” of the mental examination. (Id. at pp. 2-3.)

Plaintiff either misinterprets or incorrectly cites CCP ; 2032.320(d) in supporting this argument, which merely states: “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Id.) Plaintiff does not cite any statutory or case authority to show that Defendant was required to provide a “proposed” notice of a mental examination to Plaintiff prior to filing the instant motion to compel the examination.

Additionally, prior to filing the instant motion, Defendant’s counsel states that it attempted to meet and confer with Plaintiff’s counsel to reach a stipulation where Defendant would be allowed to conduct a mental examination of Plaintiff. (Rossiter Decl. ¶ 2.) Defendant’s counsel alleges that Plaintiff’s counsel did not respond to written requests to arrange a mental examination sent on January 2, 2020 and January 7, 2020. (Id.)

Under CCP ; 2032.320(d), Defendant does identify in the declaration of its counsel Juliane S. Rossiter the doctor whom it retained to perform the examination, as well as a description of the scope of the examination, the tests that would be administered, and a proposed time and place. (Rossiter Decl. ¶¶ 8-9, Ex. G.) Furthermore, Defendant filed Proof of Service to show that Plaintiff received notice of the instant motion and its supporting memorandum and declaration on January 17, 2020.

Accordingly, Defendant’s motion to compel Plaintiff’s mental examination is GRANTED.

Motion to Compel Plaintiff’s Authorization for Release of Medical Records

In the instant motion to compel Plaintiff’s mental examination, Defendant includes a request to compel Plaintiff’s authorization for the release of her medical records. It appears that Defendant is attempting to combine this request with the motion to compel Plaintiff’s mental examination by including it in the same document title, when such a request is distinct enough that should be treated as a separate motion and supported as such.

The only argument Defendant makes to support this request is in the introduction to its supporting memorandum: “Hughes' s admission that she was treated for emotional injuries prior to her termination from SCPMG entitles SCPMG to explore the nature of and details about that treatment in order to defend against Hughes's claim that her current mental condition was caused by her termination. As a result, Hughes should also be ordered to provide SCMPG with releases to obtain her mental health treatment records.” (Memorandum at p. 2.) However, Defendant makes no further argument nor presents any statutory or case authority to support this request. Also, Defendant does not state whether it first attempted to properly serve a subpoena for Plaintiff’s medical records from her doctor.

Therefore, the Court notes that though Plaintiff did not oppose this motion, the Court is not inclined to grant the motion due solely to a lack of opposition.

Accordingly, Defendant’s motion to compel Plaintiff’s authorization for the release of medical records is DENIED.

Case Number: ****6609    Hearing Date: December 19, 2019    Dept: SEC

HUGHES v. SOUTHERN CALIFORNIA PERMANENTE MED GROUP

CASE NO.: ****6609

HEARING: 12/19/19

#8

TENTATIVE ORDER

Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’s Motion for Summary Judgment or alternatively Motion for Summary Adjudication is DENIED. CCP ;437c.

Opposing Party to give Notice.

This action for wrongful termination was filed by Plaintiff BRIDGET HUGHES on September 27, 2017. The relevant facts, as alleged in the operative pleading, are as follows: “On or about February 1, 2010, HUGHES was hired by KAISER in the position of Admin. Specialist III.” (Complaint ¶7.) “At the time of hire, HUGHES completed an application for employment. Within the application, the field for education requested the names of educational institutions attended and years of study.” (Complaint ¶8.) “On or about July 20, 2015, KAISER discovered what it believed to be falsification of educational history submitted by HUGHES in her job application. HUGHES was placed on paid suspension for allegations relating to falsification of personnel records.” (Complaint ¶9.) “While on administrative leave, HUGHES exercised medical leave. KAISER was notified of HUGHES’ medical leave status.” (Complaint ¶15.) “While on medical leave, HUGHES was notified to attend a HR meeting at Downey Medical Center, scheduled for September 20, 2015. Upon notification, HUGHES’ attorney…emailed KAISER with correspondence stated ‘URGENT,’ informing KAISER that HUGHES was on medical leave and providing a copy of HUGHES’ physician’s note, which extended HUGHES’ leave from 9/29/2015 – 11/10/2015.” (Complaint ¶16.) “Despite KAISER’s notification that HUGHES’ medical leave had been extended to 11/10/2015, she was summarily terminated. A letter dated, September 30, 2015 citing reasons for termination based upon falsification of records. PLAINTIFF contends that no material misrepresentation occurred [Cite.].” (Complaint ¶19.) Plaintiff contends that she was on CFRA/FMLA leave at the time of her termination due to a valid medical disability, and that at no time prior to her termination did Defendant Kaiser engage in the interactive process as required by the ADA. (Complaint ¶¶20-21.)

Plaintiff’s Complaint asserts the following causes of action: (1) Retaliatory Termination in Violation of the CFRA, Gov. Code ;12945.2, For Requesting and Going on Medical Leave; (2) Wrongful Termination and Discrimination in Violation of Public Policy, CFRA, Gov. Code ;12945.2; Ely v. Wal-Mart; (3) Disability Discrimination in Violation of FEHA, Cal. Gov. Code ;12940(a); (4) Failure to Provide Reasonable Accommodation, Cal. Gov Code. ;12940(m); (5) Failure to Engage in the Interactive Process, Cal. Gov. Code ;12940(n); (6) Failure to Prevent Discrimination in Violation of FEHA, Cal. Gov. Code ;12940(k) et seq.; (7) Retaliation in Violation of FEHA, Cal. Gov. Code ;12940(h); and (8) Wrongful Termination and Discrimination in Violation of Public Policy Based on FEHA and Petermann v. International Bd.

Defendant SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP (“Defendant”) moves for summary judgment, or alternatively, summary adjudication.

First, Second, Third, Seventh, and Eighth Causes of Action – Retaliation, Termination in Violation of Public Policy, Discrimination, Retaliation and Termination in Violation of Public Policy

Defendant argues that it is entitled to summary adjudication of the first, second, third, seventh, and eighth causes of action because the undisputed material facts establish that Plaintiff’s employment was terminated for legitimate non-discriminatory and non-retaliatory reasons.

In Opposition, Plaintiff argues that the true reason for Plaintiff’s termination was disability discrimination.

“In analyzing an employee’s claim for unlawful discrimination under the FEHA, California courts have adopted the three-stage, burden shifting test the United States Supreme Court established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. [Citations.]” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 964.) “This so-called McDonnel Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained. (Id. at 964.) “California’s summary judgment law places the initial burden on a moving party defendant to either negate an element of the plaintiffs claim or establish a complete defense to the claim.” (Id. at 965-966.) “The burdens and order of proof therefore shift under the McDonnell Douglas test when an employer defendant seeks summary judgment. [Citations.] An employer defendant may meet its initial burden on summary judgment, and require the employee plaintiff to present evidence establishing a triable issue of material fact, by presenting evidence that either negates an element of the employee’s prima facie case, or establishes a legitimate nondiscriminatory reason for taking the adverse employment action against the employee.” (Id. at 966.)

“[T]o avoid summary judgment [on the second of these two grounds], an employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination. [Citations.]” (Id.)

Here, Defendant submits evidence to show that Plaintiff was terminated after, and only because, it was discovered that Plaintiff had “willfully misrepresented her educational background and falsified her employment records”. (UMF No.9.) Thus, Defendant contends that Plaintiff was terminated for cause— because she misrepresented her educational background. However, in Opposition, Plaintiff submits evidence to show that she never intentionally misrepresented her education background, and that Defendant’s discriminatory animus was the true reason for her firing. (Plaintiff’s UMF No. 2.) Plaintiff submits evidence to show that she was on intermittent protected leave from May 26, 2015 through July 17, 2015, extended through her date of termination on September 30, 2015. (Id.; See Plaintiff’s Exhibits F and N.) Plaintiff also submits evidence to show that Defendant failed to engage in the interactive process, or otherwise attempt to accommodate Plaintiff’s disability. The Court finds that Plaintiff has raised a triable issue of material fact as to what the true cause of Plaintiff’s termination was.

The motion for summary adjudication of the first, second, third, seventh, and eighth causes of action is denied.

Fourth and Fifth Causes of Action – Failure to Provide Reasonable Accommodations and Failure to Engage in the Interactive Process

Defendant argues that it is entitled to summary adjudication of the fourth and fifth causes of action because Plaintiff cannot base her claims for failure to reasonably accommodate a disability or failure to engage in the interactive process on any accommodation she claims to have been denied before September 27, 2015 because Plaintiff did not file a complaint with the DFEH until September 27, 2016.

In Opposition, Plaintiff argues that Defendant is barred from asserting a statute of limitations defense because: (1) Defendant failed to provide the Court with facts to support the defense; (2) Defendant failed to plead the defense properly; and (3) Due to California’s “Continuing Violations” Doctrine.

Under the FEHA, a plaintiff must exhaust all administrative remedies with the Department of Fair Employment and Housing (“DFEH”) as “a jurisdictional prerequisite to resort to the courts.” (See e.g., Ellis v. U.S. Security Assocs. (2014) 224 Cal.App.4th 1213, 1229.) The plaintiff bears the burden of pleading and proving (at trial) the timely filing of a sufficient complaint with the DFEH and obtaining a “right to sue” letter. (Gov. Code ;12690.)

Here, it is undisputed that Plaintiff did not file her DFEH complaint until September 27, 2016. Defendant attempts to avail itself of the one-year statute of limitations to exclude alleged failures to provide reasonable accommodations and/or engage in the interactive process that took place prior to September 27, 2015. Pursuant to the continuing violation doctrine, “a FEHA complaint is timely if discriminatory practices occurring outside the limitations period continued into that period.” (Dominguez v. Wash. Mut. Bank (2008) 168 Cal.App.4th 714, 721.) This exception applies where “an employer’s unlawful actions are (1) sufficiently similar in kind…; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) Given that the state of the evidence infers that failures to conduct interactive sessions and to accommodate occurred over the course of several months, up until the time that Plaintiff was terminated, Plaintiff has raised a triable issue of material fact as to whether the continuing violation doctrine applies in this case. The motion for summary adjudication of the fourth and fifth causes of action are denied.

Sixth Cause of Action – Failure to Prevent Discrimination

Defendant argues that it is entitled to summary adjudication of the sixth cause of action because it is also entitled to summary adjudication on Plaintiff’s claims of discrimination and retaliation. Given the Court’s findings above, Defendant’s motion for summary adjudication of the sixth cause of action is denied.

Punitive Damages

Defendant argues that it cannot be held liable for punitive damages because Plaintiff cannot establish that a partner or managing agent of SCPMG committed, authorized, or ratified an act of fraud, oppression, or malice.

In Opposition, Plaintiff argues that Defendant has failed to meet its burden of establishing that a partner or managing agent of SCPMG did not commit, authorize, or ratify Plaintiff’s wrongful termination.

Cal. Civ. Code ;3294 allows for punitive damages against defendants if, by clear and convincing evidence, they have been guilty of oppression, fraud, or malice. (Cal. Civ. Code ;3294.) “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, 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” (Cal. Civ. Code ;3294(b).)

Here, Defendant argues that Plaintiff cannot establish an entitlement to punitive damages against Defendant because Defendant is a partnership, and neither Rebecca Grant, nor Stacy Quintana—the persons who investigated Plaintiff’s educational background—were ever partners in the Defendant Corporation. (See UMF Nos. 22-26.)

The motion for summary adjudication of punitive damages is denied. The Court finds that Defendant failed to satisfy its initial burden of production of evidence by making conclusory statements of law, through declarations of two its employees (Grant and Quintana). Defendant has the initial burden to produce sufficient evidence to make a prima facie showing that there is no triable issue regarding whether Grant and Quintana are managing agents of the Defendant Corporation. By simply restating the legal standard for the determination of a “managing agent” in Grant and Quintana’s declarations—Defendant failed to satisfy its initial burden of production. (See Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358.)

Plaintiff’s Evidentiary Objections:

Objections to the Declaration of Rebecca Grant:

No. 1. Overruled

No. 2. Overruled

No. 3. Overruled

No. 4. Overruled

Objections to the Declaration of Cheri Dekeyser:

No. 1. Overruled

Objections to the Declaration of Christina Saucedo-Garcia:

No. 1. Overruled

No. 2. Overruled

Defendant’s Evidentiary Objections:

No. 1. Sustained

No. 2. Sustained

No. 3. Overruled

No. 4. Overruled

No. 5. Overruled

No. 6. Sustained

No. 7. Overruled

No. 8. Overruled

No. 9. Sustained

No. 10. Overruled

No. 11. Overruled

No. 12. Sustained as to “so Kaiser knew full well that my disability had been extended literally the day before Kaiser terminated me.” Otherwise Overruled.

No. 13. Sustained

No. 14. Overruled

No. 15. Overruled

No. 16. Overruled

No. 17. Sustained

No. 18. Overruled

No. 19. Overruled

No. 20. Sustained

No. 21. Sustained

No. 22. Overruled

No. 23. Overruled