NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
(Los Angeles County Super. Ct. No. BC312362)
Plaintiff and Respondent,
SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP et al.,
Defendants and Appellants.
APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Michael L. Stern, Judge. Affirmed.
Seyfarth Shaw, David D. Kadue and Holger G. Besch for Defendants and Appellants.
Charles T. Mathews & Associates, Charles T. Mathews; The Rager Law Firm, Jeffrey A. Rager; Law Offices of Roxanne Huddleston and Roxanne Huddleston for Plaintiff and Respondent.
Defendants and appellants Southern California Permanente Medical Group (Medical Group) and Kaiser Foundation Health Plan, Inc. (Kaiser) (collectively, defendants) appeal a judgment on special verdict which awarded plaintiff and respondent Mark L. Woods, M.D. (Dr. Woods) $200,000 in damages. Defendants also appeal an order denying their motion for judgment notwithstanding the verdict (JNOV).1
Dr. Woods sued defendants for retaliating against him for advocating medically appropriate patient care.2The action was tried to the jury on a statutory cause of action pursuant to section 2056, and a tort cause of action for violation of public policy predicated on a violation of the public policy articulated in section 2056. In the special verdict, the jury responded “no” when asked whether Dr. Woods was an employee of the Medical Group, and “yes” when asked whether Kaiser and the Medical Group were a “single employer” of Dr. Woods.
Defendants contend the jury’s finding that Dr. Woods was not an employee of the Medical Group is fatal to his public policy claim because the public policy tort depends on the existence of an employer-employee relationship.
We reject defendants’ interpretation of the verdict. The jury’s finding that the Medical Group was not Dr. Woods’s employer was merely a finding that the Medical Group, standing alone, was not his employer – rather, the Medical Group, together with Kaiser, were the single employer of Dr. Woods. Because Woods was an employee of the Medical Group and Kaiser, he was entitled to sue in tort for their retaliatory conduct in violation of the public policy set forth in section 2056. Therefore, the judgment and the order denying the motion for JNOV are affirmed.
1. Relevant facts as pled in the operative “amended second amended complaint.” For 15 years, Dr. Woods was employed by defendants as an emergency room physician at Kaiser-Bellflower.
In 2001, the Department of Health and Human Services cited Kaiser-Bellflower for failing to provide appropriate medical screening examinations, failing to provide stabilizing treatment for emergency medical conditions and failing to provide care in the emergency room without regard to the patients’ ability to pay. Kaiser-Bellflower’s policy was to keep patients waiting in the emergency room until they left without treatment. Between 1999 and 2006, more than 5,000 patients were sent home without receiving medical screening exams. Kaiser intentionally understaffed and understocked the hospital to increase profits and to decrease the number of patients who would avail themselves of the emergency room. Kaiser also provided inadequate and unsanitary care for its patients. Treatment of several patients suffering from chest pains and possible myocardial infarctions was delayed because the emergency room lacked appropriate medications such as nitroglycerin and resuscitation bags. Other patients were placed in rooms soiled with blood and excrement. In one instance, a patient was placed in a room with an aborted fetus and blood clots in the sink. Kaiser permitted physicians to refer patients, including children, to a doctor who was mentally ill and a known child molester. It also scheduled doctors, including Dr. Woods, to work consecutive evening or overnight shifts in violation of Medical Group rules, a practice which threatened patient care.
Dr. Woods complained of these incidents and conditions. In retaliation, defendants placed him on administrative leave and reduced his pay in November and December of 2003. In November 2004, he was reinstated but transferred to Fontana as further retaliation for his complaints. In April 2006, Dr. Woods was suspended and his salary was further reduced in continuing retaliation for his complaints. On July 19, 2006, the day before the hearing on the post-trial motions, Dr. Woods was terminated.
Dr. Woods filed suit on March 18, 2004. He subsequently filed an “amended second amended complaint.”
The relevant claims, with respect to this appeal, were (1) a statutory cause of action for damages for retaliation in violation of section 2056, and (2) a tort cause of action for violation of public policy predicated on a violation of the public policy articulated in section 2056.5
On May 2, 2006, the matter came on for a jury trial.
On June 2, 2006, the jury returned a special verdict which included the following findings: Dr. Woods, at the Bellflower Medical Center, protested a decision, policy or practice that he reasonably believed impaired his ability to provide medically appropriate health care to his patients; in 2003, the Medical Group placed Dr. Woods on administrative leave and reduced his pay; Dr. Woods’s patient advocacy was a motivating factor for the Medical Group’s placement of Dr. Woods on administrative leave and reduction of pay in 2003; and the Medical Group’s retaliatory conduct was a substantial factor in causing harm to Dr. Woods.
The crucial findings for purposes of this appeal are No. 5, No. 14 and No. 15. The jury answered “no” when asked whether Dr. Woods was an employee of the Medical Group, “no” when asked whether Kaiser and the Medical Group were a “joint employer” of Dr. Woods, and “yes” when asked whether Kaiser and the Medical Group were a “single employer” of Dr. Woods.
The jury awarded Dr. Woods $200,000 for past economic losses only and did not award punitive damages.
On June 5, 2006, the trial court entered judgment on the special verdict, awarding Dr. Woods $200,000 plus interest from the date of the verdict.
On June 20, 2006, defendants filed a motion for JNOV, contending that because the jury found Dr. Woods was not an “employee” of the Medical Group,6 his claim for wrongful demotion in violation of public policy must fail as a matter of law. Defendants further contended Dr. Woods could not defend the verdict on a theory that section 2056 authorizes a private right to sue, because the statute does not authorize a direct right of action by an aggrieved physician.
On July 20, 2006, the trial court denied defendants’ motion for JNOV.
On August 4, 2006, defendants filed a timely notice of appeal from the judgment and the order denying their motion for JNOV.
Defendants contend: a non-employee has no public policy claim; there is no private right to sue under section 2056; and Dr. Woods’s belief in his employee status is immaterial. Defendants seeks reversal of the judgment and entry of a new judgment in their favor.
1. The jury’s finding the Medical Group, together with Kaiser, were Dr. Woods’s “single employer,” supports Dr. Woods’s cause of action for wrongful demotion in violation of public policy.
a. Summary of argument. To reiterate, defendants are not challenging the sufficiency of the evidence.
Defendants expressly “accept the entirety of the jury’s factual findings.” Defendants simply dispute the “legal effect” of the jury’s findings.
Further, defendants acknowledge that pursuant to section 2056, “It is the public policy of the State of California that a physician and surgeon be encouraged to advocate for medically appropriate health care for his or her patients.” (§ 2056, subd. (b).) Defendants also concede “[t]hat public policy would support, of course, a wrongful termination tort by an employee who was dismissed or demoted in violation of Section 2056.” (Italics added.)
However, defendants contend Dr. Woods cannot prevail on his public policy claim because he was not an employee. Defendants base their entire argument on the jury’s finding on question No. 5, i.e., the finding that Dr. Woods was not an employee of the Medical Group. Defendants assert that in answering “no” to that question, the jury in effect found Dr. Woods was a “partner” in the Medical Group, rather than an employee. According to defendants, the jury’s finding that Dr. Woods was not an employee of the Medical Group doomed his public policy claim, because the public policy tort depends on the existence of an employer-employee relationship.
As explained below, defendants’ exclusive focus on the jury’s finding on question No. 5 is misplaced.
b. The jury’s finding the Medical Group was not Dr. Woods’s employer must be read in conjunction with the related finding the Medical Group, together with Kaiser, were his “single employer.”
A verdict “ ‘should be interpreted so as to uphold it and to give it the effect intended by the jury, as well as one consistent with the law and the evidence.’ ”
(All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1223, italics added; accord 7 Witkin, California Procedure (4th ed. 1997) Trial, § 375, p. 427.)7
The jury’s finding the Medical Group was not Dr. Woods’s employer was merely a finding that it alone was not Dr. Woods’s employer; it was not an exoneration of defendants. In a related finding, the jury expressly found Kaiser and the Medical Group were Dr. Woods’s “single employer.”
Defendants seek to dismiss the “single employer” finding as merely a contingent finding. Defendants argue if there can be no liability against the Medical Group for wrongful demotion because it was not Dr. Woods’s employer, then the additional finding that the Medical Group and Kaiser were a “single employer” is without legal significance.
Defendants’ characterization of the “single employer” finding as a contingent finding is unpersuasive because it disregards the language of the special verdict. In this regard, the jury did not merely find that the Medical Group and Kaiser are an “integrated enterprise” so as to hold the parent, i.e., Kaiser, liable for any acts or omissions of a subsidiary, i.e., the Medical Group. Rather, the jury found the Medical Group and Kaiser “[a]re . . . a ‘single employer’ of [Dr. Woods]” (italics added), so as to hold both defendants liable to their employee, Dr. Woods.
Under the “integrated enterprise test,” two corporations may be treated as a single employer. (Laird v. Capital Cites/ABC, Inc. (1998) 68 Cal.App.4th 727, 737.) This test has four factors: interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control. (Ibid.)
Defendants’ contention the Medical Group was not Dr. Woods’s employer is in effect an attack on the sufficiency of the evidence to support the single employer finding, without any record to show what evidence was introduced concerning the relationship between the Medical Group and Kaiser or how those two entities are interrelated.
Further, the special verdict reflects the jury’s determination the Medical Group had authority over Dr. Woods. The jury found the Medical Group denied Dr. Woods a promotion, placed him on administrative leave and reduced his pay in 2003. Those are all indicia of an employer/employee relationship between the Medical Group and Dr. Woods and consistent with the finding the Medical Group, together with Kaiser, were Dr. Woods’s single employer. In the absence of a record showing otherwise, we presume the single employer finding is supported by the record.
In sum, the jury’s finding the Medical Group was not Dr. Woods’s employer was merely a finding the Medical Group, standing alone, was not his employer – rather, the Medical Group, together with Kaiser, were the single employer of Dr. Woods. Because Woods was an employee of the Medical Group and Kaiser, he was entitled to sue in tort for their retaliatory conduct in violation of the public policy set forth in section 2056. Therefore, the judgment and the order denying the motion for JNOV must be affirmed.
2. Remaining issues not reached.
Because Dr. Woods’s employee status entitled him to sue in tort for violation of the public policy articulated in section 2056, it is unnecessary under the circumstances of this case to address whether section 2056 authorizes a direct right of action by an aggrieved physician.8
It is also unnecessary to address the relevance of Dr. Woods’s belief his status was that of an employee, or any other issues.
The judgment and the order denying the motion for JNOV are affirmed. Dr. Woods shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
1 An order denying a motion for JNOV is appealable. (Code Civ. Proc., § 904.1, subd. (a)(4).)
2 Business and Professions Code section 2056 provides “protection against retaliation for physicians who advocate for medically appropriate health care for their patients . . . .” (Bus. & Prof. Code, § 2056, subd. (a).)
All further statutory references are to the Business and Professions Code, unless otherwise specified.
3 Defendants do not challenge the sufficiency of the evidence. Further, defendants “accept the entirety of the jury’s factual findings” on the special verdict. As will be explained later in the opinion, defendants challenge only the legal consequences of the jury’s findings.
4 On August 14, 2006, defendants initially designated the entire reporter’s transcript of the trial, which resulted in the filing of a 19-volume reporter’s transcript with this court. That same day, defendants also filed an amended designation superseding the prior designation. In the amended designation, defendants designated only the reporter’s transcript of the July 20, 2006 hearing on their motion for JNOV. On December 15, 2006, defendants stipulated they would rely only on their amended designation of record on appeal. Based on that stipulation, Dr. Woods dismissed his cross-appeal.
Thus, the record on appeal consists of the 18-page reporter’s transcript of the hearing on the JNOV motion, as well as a brief clerk’s transcript, consisting in essence of the pleadings, the papers on the motion for JNOV, the judgment and the notice of appeal.
To give this matter some context, the factual summary is compiled from the pleadings and the briefs.
5 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 recognized a tort cause of action for wrongful discharge in contravention of public policy. It is now settled that a public policy may support a wrongful discharge claim “if it satisfies four requirements. The policy must be (1) delineated in either constitutional or statutory provisions; (2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual; (3) well established at the time of the discharge; and (4) ‘substantial’ and ‘fundamental.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 901-902.)
Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, disapproved on another point in Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1093-1095, extended the application of Tameny to a claim of retaliatory disciplinary action, falling short of an actual discharge. Garcia explained, “we see no reason why the rationale of Tameny should not be applicable in a case where an employee is wrongfully (tortiously) disciplined and suffers damage as a result” (Garcia, supra, at p. 1561), even though “the ultimate sanction of discharge has not been imposed.” (Id. at p. 1562.)
6 Defendants’ theory below was that Dr. Woods was a partner in the Medical Group, rather than an employee. However, a partner may be an employee in certain circumstances, depending on the evidence. In Strother v. S. Cal. Permanente Medical Group (9th Cir. 1996) 79 F.3d 859 (Strother) (involving the same Medical Group which is a defendant herein), a physician who was a partner in the Medical Group sued for racial discrimination and retaliation under FEHA and under the Unruh Civil Rights Act. (Id. at p. 863.) The district court granted the Medical Group’s motion to dismiss the plaintiff’s FEHA discrimination claim “ ‘on the grounds that [Strother] is a bona fide partner of the medical group and not an employee for the purpose’ of FEHA.” (Id. at p. 864.)
The Ninth Circuit reversed, ruling Strother’s “partner” label was not dispositive. (Strother, supra, 79 F.3d at pp. 867-868.) “Although the Medical Group points to a number of partnership rights provided to Strother in the partnership agreement, the affairs of the ‘partnership’ are conducted predominantly by the Board of Directors, over which she has little control and to which she has limited access. Her compensation is determined to a significant degree by her performance, and she can be disciplined for poor performance. The size of the Medical Group-Strother is one of 2400-2500 ‘partners’ – makes it more likely that Strother could demonstrate that her actual partnership rights are limited enough that she should be characterized as an employee. The complaint and the partnership agreement leave many unanswered questions about how the partnership actually conducts itself. Although it may ultimately be demonstrated that Strother is not an ‘employee’ entitled to FEHA protection, and resolution of the issue on summary judgment could be appropriate, the district court erred in determining that Strother could plead no set of facts to show that she was actually an ‘employee’ entitled to FEHA protection.” (Ibid., fns. omitted.)
7 Because defendants elected to prosecute the appeal without a reporter’s transcript of the trial, they are not in a position to argue the verdict is not consistent with the evidence.
8 Defendants rely, inter alia, on Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, which held Insurance Code section 790.03 did not create a private civil cause of action against an insurer, to argue section 2056 does not authorize a private right of action by an aggrieved physician.