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C. R. v. Tenet Healthcare Corp.

January 5, 2009; as modified February 3, 2009

C. R., PLAINTIFF AND APPELLANT,
v.
TENET HEALTHCARE CORPORATION ET AL., DEFENDANT AND RESPONDENT.



APPEAL from an order of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Reversed with directions. (Los Angeles County Super. Ct. No. BC364189).

The opinion of the court was delivered by: Turner, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

I. INTRODUCTION

Plaintiff, C.R., appeals from a judgment entered in favor of defendant, Tenet Healthcare Corporation, after its demurrer was sustained without leave to amend her first amended complaint. Plaintiff alleged she was a patient at Encino Tarzana Medical Center (the medical center). She was molested by, Ramon Eduardo Gaspar, one of defendant's employees. We reverse the dismissal order. Upon remittitur issuance, the trial court is to rule on defendant's motion to strike.

II. FIRST AMENDED COMPLAINT

In reviewing an order after a demurrer is sustained without leave to amend, all well-pleaded factual allegations must be assumed as true. (Naegele v. R. J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, 864-865; Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 946.) The first amended complaint is the operative pleading and contains causes of action for: sexual harassment in violation of Civil Code*fn2 section 51.9 (first): negligent hiring (second); negligent retention (third); negligent supervision (fourth); and intentional severe emotional distress infliction (fifth). Defendant, a corporation with its principal place of business in Texas which regularly operates in California, is named in the first amend complaint. The medical center is also named as a codefendant (the medical center). Defendant is the parent company of and owns the medical center. At various places, the first amended complaint uses the term "defendant" to refer to: defendant; the medical center; Mr. Gaspar; and fictitiously named defendants. The first amended complaint seeks to certify as members of a class the following, "All person who were subjected to continuous sexual harassment, assault, molestation, inappropriate touching, rape, attempted rape, negligent hiring, retention and supervision of defendants' employee[, Mr. Gaspar,] during the relevant time period[.]" As will be noted, there is no issue on appeal as to the class certification allegations. Upon remittitur issuance, that is an issue that the trial court will resolve in connection with defendant's motion to strike.

The first amended complaint contains standard agency and ratification allegations: "At all times relevant herein, each Defendant designated . . . herein was the agent, partner, joint venturer, representative, servant, employee and/or co-conspirator of each of the other Defendants, and was at all times mentioned herein acting within the course and scope of said agency and employment, and that all acts or omissions alleged herein were duly committed with the ratification, knowledge, permission, encouragement authorization and consent of each Defendant designated herein. . . . [¶] [] Defendants and each of them were agents, principals, joint venturers, partners, representatives, servants, employees and/or co-conspirators of each of the other Defendants, each Defendant condoned and ratified the conduct of all other defendants, and was at all times mentioned herein acting within the course and scope of said agency and employment, authority and ratification." Thirty-two of the 72 paragraphs which apply to plaintiffÂ’s section 51.9 cause of action allege Mr. Gaspar was defendantÂ’s agent or employee. According to most of the first amended complaint, defendants hired Mr. Gaspar as a certified nurse assistant. At another part of the first amended complaint, it is alleged Mr. Gaspar was hired in other capacities. Regardless of his exact capacity, Mr. Gaspar is alleged to have repeatedly sexually abused patients in the medical center and this misconduct is the subject of defendants' potential liability.

The first amended complaint makes two different allegations as to when Mr. Gaspar was hired to work at the medical center. At one point, the first amended complaint asserts that Mr. Gaspar worked at the medical center for approximately two to three years. At other places, it is alleged Mr. Gaspar worked at the medical center for two years. Prior to hiring Mr. Gaspar, defendants failed to conduct a background check on him. No effort was made to inquire of former employers as to why he left their employ. Had defendants conducted a background check, they would have discovered Mr. Gaspar had "previously sexually harassed, assaulted, [and] inappropriately touched female patients" at hospitals where he had worked before being hired to work at the medical center. When hired to work at the medical center as a certified nursing assistant, "without any supervision," Mr. Gaspar was left in rooms with female patients in vulnerable, ill, and in various stages of undress. Over a two year period while working at the medical center, Mr. Gaspar "inappropriately touched, sexually harassed, molested, raped and attempted to rape, and assaulted female patients" while alone with them. Similarly, Mr. Gaspar engaged in similar misconduct with women who were employees of the medical center.

Female patients reported Mr. Gaspar's sexual abuse to defendants. However, each time defendants were advised of Mr. Gaspar's sexual misconduct, they "refused to investigate or interview any one" or minimized or ignored the patient's complaints. Further, defendants refused to fire Mr. Gaspar, discipline him, prevent him from being alone with patients who were women, or provide appropriate supervision. In an effort to conceal Mr. Gaspar's sexual abuse of patients and employees, defendants destroyed, altered, and modified complaints reports, nurses notes, patient charts, and employee files. The first amended complaint alleges, "Plaintiffs are informed and believe that several of [defendants'] managing agents and supervisors knew of the sexual harassment, molestation, assault, rape, and inappropriate touching by [Mr. Gaspar] towards the plaintiffs and refused to take any action, and hid the information so that [Mr. Gaspar] would continue to work for defendants." At another point, the first amended complaint alleges; "Numerous plaintiffs, including [C. R.], were sexually harassed, assaulted, molested and inappropriately touched by defendant's employee [Mr. Gaspar] throughout the two or three years that [Mr. Gaspar] continued to be employed by defendants who condoned and ratified his actions by allowing him to continue working despite the repeated acts of sexual harassment, assault, molestation, rape and inappropriate touching of plaintiffs, including [defendants'] own employees."

Prior to April 2006, Mr. Gaspar "inappropriately touched, sexually harassed, molested, and assaulted, raped or attempted to rape" members of the proposed class. In April 2006, Mr. Gaspar sexually abused plaintiff on "multiple" occasions. After April 2006, Mr. Gaspar continued to sexually abuse class members.

The first cause of action alleges that Mr. Gaspar's conduct as defendants' employee violated Civil Code section 51.9 which protects plaintiff and fellow class members from unwanted harassment by a physician or person with a relationship substantially similar such a healthcare provider. The cause of action alleges: defendant and others are a business establishment engaged in providing professional and business services to the public; plaintiff and other class members were patients and had a professional services relationship with defendants; and Mr. Gaspar engaged in conduct violative of section 51.9 by touching the patients in their private areas. The alleged touching included penetration of their vaginal areas and fondling their breasts while the patients were in a state of diminished capacity due to their illness and unable to resist his assaults.

The second cause of action for negligent hiring alleges that if defendants had conducted an adequate investigation they would not have hired Mr. Gaspar. The third cause of action for negligent retention alleges defendants received numerous complaints about Mr. Gaspar of inappropriate touching, molestation, assault and rape, but they refused to investigate the allegations and continued to employ Mr. Gaspar. The fourth cause of action for negligent supervision alleges defendants, after complaints were made about Mr. Gaspar: failed to use reasonable care to supervise him; refused to remove him from his job; and allowed him to be alone with female patients. The fifth cause of action for intentional severe emotional distress infliction alleges that retention of Mr. Gaspar as an employee was extreme and outrageous because defendants knew that he had molested, raped, and sexually assaulted female patients. Plaintiff sought compensatory and punitive damages, attorney fees, and prejudgment interest.

III. DEMURRER AND JUDICIAL NOTICE REQUESTS

On April 19, 2007, defendant demurred to the first amended complaint and filed a motion to strike. Defendant asserted it did not employ Mr. Gaspar. Rather, defendant asserted that Mr. Gaspar was employed by an entity entitled AMI\HTI Tarzana Encino Joint Venture which actually operated the medical center. At the demurrer stage, defendant relied on judicially noticeable documents in an effort to resolve the issue of who employed Mr. Gaspar. Defendant requested judicial notice of State of California licenses issued to the medical center for the years 2004 thought 2006. As a result, defendant argued it did nothing to directly injure plaintiff and could not be vicariously liable for Mr. Gaspar's conduct as it did not employ him. In terms of the fifth cause of action for intentional severe emotional distress infliction, defendant argued the allegations were insufficient to indicate it intentionally sought to cause severe psychological injury to plaintiff.

In her opposition to the demurrer, plaintiff objected to defendant's judicial notice request. Additionally, plaintiff sought judicial notice of a website which purportedly demonstrated defendant owned and operated the medical center. The judicial notice request consisted of website through Encino-Tarzana Medical Center which is entitled, "Encino-Tarzana Regional Medical Center Tenet California." Plaintiff argued that the website instructs employment applicants to fill out an application in order to work for defendants. According to plaintiff, an applicant seeking a career at the medical center is directed to go to the website www.tenethealth.com/careers. Plaintiff asserted that the license relied upon by plaintiff only proved the medical center operated under a fictitious business licenses. According to plaintiff, the first amended complaint sufficiently pleaded defendant's ownership, operation, and management of the medical center and that it hired, supervised, retained, and employed Mr. Gaspar.

The trial court: granted defendant's judicial notice request; issued a detailed tentative decision; and later adopted the tentative decision as the final order. The trial court denied plaintiff's judicial notice request. The trial court sustained the demurrer without leave to amend. The trial court ruled the section 51.9 claim was deficient because: it is a stand-alone provision and not part of the Unruh Civil Rights Act; there is no allegation that defendant, a corporation, committed the acts of sexual abuse; the sexual assaults were alleged to have been committed by an individual; the ...


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