Loughlin v. Kaiser Permanente

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- [11] 12 LINDA SUSAN LOUGHLIN, No. 2:21-cv-00539-WBS-AC 13 Plaintiff, 14 v. ORDER RE: DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST 15 KAISER FOUNDATION HOSPITALS; THE AMENDED COMPLAINT PERMANENTE GROUP, INC.; and DOES 16 3-25, INCLUSIVE, 17 Defendants. [18] 19 ----oo0oo---- 20 Plaintiff Linda Susan Loughlin brought this action 21 against Kaiser Foundation Hospitals, The Permanente Group, Inc., 22 and unnamed Doe defendants 3-25 (collectively “Kaiser” or 23 “defendants”) seeking damages on various state law claims arising 24 out of her former employment with Kaiser. In essence, plaintiff 25 claims that defendants are liable for various respiratory 26 conditions and injuries she suffered because defendants allegedly 27 maintained an unsanitary and unsafe workplace. Defendants now 28 move to dismiss plaintiff’s complaint in its entirety for failure 1 to state a claim under Rule 12(b)(6) of the Federal Rules of 2 Civil Procedure. (See Mot. to Dismiss (“Mot.”) (Docket No. 143 1).) 4 I. Factual and Procedural Background 5 Plaintiff is a Virginia resident who worked for Kaiser 6 in Sacramento County until 2015. (See First Amended Complaint 7 (“FAC”) at ¶¶ 1*, 5*, 23-241 (Docket No. 5).) Kaiser, a 8 California corporation, operates a medical facility located at 9 3200 Arden Way in Sacramento. (Id. at ¶¶ 3*, 5*.) 10 Plaintiff worked for Kaiser as a Registered Nurse for 11 more than twenty years. (Id. at ¶¶ 1-2.) In 1997, she was 12 diagnosed with a chronic respiratory condition that caused her to 13 become allergic and particularly sensitive to strong scents, 14 volatile organic compounds, and smoke. (Id. at ¶ 4.) Her 15 physician confirmed this diagnosis in October 2010, noting that 16 she would likely suffer from the condition for life. (Id. at 17 ¶ 6.) 18 Because of her condition, exposure to these allergens 19 severely impacts her breathing, causing her to become debilitated 20 and unable to continue to work. (Id.) Plaintiff alleges that, 21 beginning in 1999, she repeatedly informed defendants about her 22 condition and sensitivity, and that in December 2011 she informed 23 them via letter of her concerns regarding strong smells and a [24] 1 The First Amended Complaint includes sections titled [25] “Parties” and “Jurisdiction and Venue,” with sequentially numbered paragraphs beginning at 1, followed by a section titled [26] “Factual Allegations,” at which point the paragraphs’ numbering 27 begins at 1 anew. (See FAC (Docket No. 5).) For clarity, any references in this order to the first group of paragraphs in the 28 First Amended Complaint are denoted with an asterisk (“*”). 1 lack of cleanliness in the facility in which she worked, of which 2 a manager confirmed receipt. (Id. at ¶¶ 5, 7.) She also alleges 3 that defendants assured her that there was no possibility of 4 asbestos exposure in the building and represented that the 5 premises did not contain toxic mold. (See id. at ¶¶ 22, 93.) 6 Plaintiff alleges that from December 2011 until leaving 7 defendants’ employ in 2015, she repeatedly notified defendants 8 about concerns she had relating to strong scents and cleanliness 9 issues in the facility, including the presence of air fresheners, 10 perfume, cologne, and bleach, which on numerous occasions 11 triggered reactive respiratory episodes. (See id. at ¶¶ 8-20.) 12 These episodes frequently caused her to leave early or miss work, 13 including through use of family leave. (See id.) Although 14 plaintiff requested transfer to another Kaiser facility pursuant 15 to her physician’s advice, her manager informed her that she was 16 ineligible for transfer because she would require re-training. 17 (See id. at ¶ 16.) Plaintiff alleges that she ultimately ended 18 her employment with Kaiser because the scents and allergens in 19 defendants’ facility were causing her respiratory condition to 20 worsen. (See id. at ¶ 24.) 21 Plaintiff alleges that, between February and May 2015, 22 she collected dust samples from defendants’ premises, which a 23 laboratory analysis revealed contained trace amounts of several 24 types of toxic mold. (See id. at ¶ 21.) A 2017 visit to her 25 physician revealed that she was allergic to these and other types 26 of toxic mold, and that she had spots on her right lung and 27 thyroid nodules, which were likely caused by prolonged exposure 28 to these substances. (See id. at ¶¶ 28-29.) She has also been 1 diagnosed with reactive airway disease, moderate to severe 2 asthma, and low oxygen saturation. (See id. at ¶¶ 31, 34, 36.) 3 She further alleges that she recently obtained an internal email 4 from 2015, noting that a sign had been placed on the door of the 5 premises break room that read, “Danger, Asbestos, Dust Hazard, 6 Cancer and Lung Disease Hazard, Authorized Personnel Only.” (See 7 id. at ¶ 37.) She also alleges that she subsequently learned 8 asbestos had been present in the glue in the break room while she 9 was employed by Kaiser. (See id. at ¶ 38.) 10 On March 24, 2021, plaintiff filed the instant action 11 in this court. (See Docket No. 1.) She filed the First Amended 12 Complaint on June 30, 2021, (see Docket No. 5), and defendants 13 moved to dismiss on September 6, 2021, (see Docket No. 14). 14 II. Legal Standard 15 Federal Rule of Civil Procedure 12(b)(6) allows for 16 dismissal when the plaintiff’s complaint fails to state a claim 17 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 18 “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” 19 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding 20 such a motion, all material allegations of the complaint are 21 accepted as true, as well as all reasonable inferences to be 22 drawn from them. Id. 23 Dismissal is proper where a complaint fails to allege 24 “sufficient facts . . . to support a cognizable legal theory,” [25] id., or to state “a claim to relief that is plausible on its 26 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 27 claim has facial plausibility when the plaintiff pleads factual 28 content that allows the court to draw the reasonable inference 1 that the defendant is liable for the misconduct alleged.” 2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 In actions alleging fraud, “the circumstances 4 constituting fraud or mistake shall be stated with 5 particularity.” Fed. R. Civ. P. 9(b). “To comply with Rule 6 9(b), allegations of fraud must be specific enough to give 7 defendants notice of the particular misconduct which is alleged 8 to constitute the fraud charged so that they can defend against 9 the charge and not just deny that they have done anything wrong.” 10 Bly–Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001) 11 (internal quotation marks and citation omitted). 12 III. Defendants’ Motion 13 In their motion, defendants seek dismissal of all ten 14 claims alleged in plaintiff’s First Amended Complaint: negligence 15 (count one), premises liability (count two), tortious 16 constructive discharge (count three), breach of covenant of good 17 faith and fair dealing (count four), negligent hire and retention 18 (count five), unsafe conditions (count six), negligent infliction 19 of emotional distress (count seven), fraudulent misrepresentation 20 (count eight), fraudulent concealment (count nine), and loss of 21 consortium (count ten). (See Mot. (Docket No. 14-1); FAC (Docket 22 No. 5).) At the outset, the court notes that in her opposition 23 brief, plaintiff states that she “agrees to dismiss” counts 24 three, four, and ten from the First Amended Complaint. (See Opp. 25 to Mot. at 13, 19 (Docket No. 18).) Accordingly, the court will 26 grant defendants’ motion to dismiss to the extent that it seeks 27 dismissal of those claims. 28 Defendants argue that plaintiff’s remaining claims must 1 be dismissed because (1) the applicable statutes of limitations 2 have all expired, (2) they are preempted by California’s worker’s 3 compensation laws, and (3) plaintiff has failed to plead her 4 fraud claims (counts eight and nine) with the required 5 specificity. (See Mot. (Docket No. 14-1).) 6 “An employee injured during the course of employment is 7 generally limited to remedies available under the Workers’ 8 Compensation Act.” Jensen v. Amgen, Inc., 105 Cal. App. 4th 9 1322, 1325 (2d Dist. 2003) (citing Foster v. Xerox Corp., 40 Cal. 10 3d 306, 308 (1985)); see also Hughes Aircraft Co. v. Super. Ct., [11] 44 Cal. App. 4th 1790, 1792 (4th Dist. 1996) (compensation 12 provided under Act “is the exclusive remedy for work-related 13 injuries”). Section 3602 of the California Labor Code, which 14 codifies the Act in part, provides that workers’ compensation is 15 “the sole and exclusive remedy of the employee . . . against the 16 employer” where conditions listed in section 3600 are met, except 17 where certain statutory exceptions apply. Cal. Lab. Code § 18 3602(a); see also Foster, 40 Cal. 3d at 308 (“An employee who 19 suffers an injury in the course of his employment may recover 20 damages in an action at law only if he comes within certain 21 exceptions to the workers’ compensation law.”) (citations 22 omitted). 23 Plaintiff does not dispute that the conditions listed 24 in section 3600 are met in this case. However, she argues that 25 one of the statutory exceptions, provided by Labor Code section 26 3602(b)(2), applies. (See Opp. to Mot. at 19-23 (Docket No. 27 18).) Under that section, “[a]n employee . . . may bring an 28 action at law for damages against [her] employer . . . . [w]here 1 the employee’s injury is aggravated by the employer’s fraudulent 2 concealment of the existence of the injury and its connection 3 with the employment, in which case the employer’s liability shall 4 be limited to those damages proximately caused by the 5 aggravation.” Cal. Lab. Code § 3602 (b)(2).2 6 Accordingly, to survive a motion to dismiss, a 7 plaintiff pursuing such a claim must “plead facts that[,] if 8 found true by the trier of fact, establish th[at] . . . : (1) the 9 employer knew that the plaintiff had suffered a work-related 10 injury; (2) the employer concealed that knowledge from the 11 plaintiff; and (3) the injury was aggravated as a result of such 12 concealment.” Palesteni v. Gen. Dynamics Corp., 99 Cal. App. 4th 13 80, 89-90 (4th Dist. 2002) (citing Foster, 40 Cal. 3d at 312). 14 Although “affirmative misrepresentations are not required,” 15 Foster, 40 Cal. 3d at 309, the employer must have “actual 16 knowledge” of the injury that it conceals from the employee -- 17 “neither constructive nor imputed knowledge is sufficient,” 18 Hughes Aircraft Co., 44 Cal. App. 4th at 1796 (citing Foster, 40 19 Cal. 3d at 312; Santiago v. Firestone Tire & Rubber Co., 224 Cal. 20 [21] 2 Plaintiff does not contend that any exceptions apply 22 other than that provided by section 3602(b)(2). (See Opp. to Mot. (Docket No. 18).) Because, apart from these exceptions, 23 workers’ compensation “is . . . the sole and exclusive remedy of the employee . . . against the employer,” Cal. Lab. Code. 24 § 3602(a), the tort claims plaintiff may pursue are limited to her fraudulent concealment cause of action under that section. [25] As such, the remaining claims in the First Amended Complaint -- those presented in counts one, two, five, six, seven, and eight [26] -- must be dismissed. Therefore, the court will grant 27 defendants’ motion, to the extent that it seeks dismissal of those claims. [28] 1 App. 3d 1318, 1331, 1335 (1st Dist. 1990)) (emphasis omitted).3 2 Further, “[i]n federal court, [Federal Rule of Civil 3 Procedure] 9(b) requires that facts showing fraudulent 4 concealment, like other fraud claims, be pled with specificity.” 5 Rodriguez v. United Airlines, Inc., 5 F. Supp. 3d 1131 , 1136 6 (N.D. Cal. 2013). In claims brought under section 3602(b)(2), 7 this heightened pleading standard applies to each element of the 8 cause of action, including “the key allegation of [a defendant]’s 9 knowledge of the alleged injuries” and the defendant’s 10 concealment thereof. See id. at 1139 . 11 Construing the First Amended Complaint so as to draw 12 all reasonable inferences in plaintiff’s favor, plaintiff alleges 13 (1) that defendants knew of and concealed the presence of 14 asbestos, various forms of toxic mold, “and harsh chemicals and 15 smells” on the premises; (2) that her long-term and chronic 16 exposure to these substances substantially contributed to her 17 respiratory problems, resulting in spots on her right lung, 18 thyroid nodules, and low oxygen saturation; and (3) that she [19] 3 It bears noting that the standard for section 20 3602(b)(2)’s fraudulent concealment exception is somewhat narrower than the general cause of action for fraudulent [21] concealment available under California law. The latter requires 22 that “(1) the defendant concealed a material fact; (2) the defendant was under a duty to disclose the fact to the plaintiff; 23 (3) the defendant concealed or suppressed the fact with an intent to defraud; (4) the plaintiff was unaware of the fact and would 24 have acted if he or she had known about it; and (5) the concealment caused the plaintiff to sustain damage.” Williamson [25] v. Gen. Dynamics Corp., 208 F.3d 1144 , 1156 n.3 (9th Cir. 2000) (citations omitted). Unlike that cause of action, which simply [26] requires concealment of “a material fact,” section 3602(b)(2) 27 specifies that the concealed facts must include “the existence of the [plaintiff’s] injury and its connection with the employment.” [28] Cal. Lab. Code § 3602 (b)(2). 1 would have ceased to return to the premises, preventing these 2 conditions from developing, had defendants disclosed the presence 3 of the aforementioned substances. (See FAC at ¶¶ 28-29, 36-38, 4 100-107 (Docket No. 5).) 5 Critically, however, plaintiff fails to allege that 6 defendants were aware of her injuries and their connection to her 7 employment but concealed such information from her, elements that 8 she is required to plead in order to state a claim under section 9 3602(b)(2). See Foster, 40 Cal. 3d at 312 (complaint stated 10 claim under section 3602(b)(2) in part because it alleged 11 “defendant knew plaintiff had contracted arsenic poisoning from 12 his employment and concealed that knowledge from him”); 13 Palesteni, 99 Cal. App. 4th at 94 (complaint stated claim where 14 it alleged defendants “concealed their knowledge that [plaintiff] 15 was chronically overexposed at work to carcinogenic chemicals and 16 as a result of that exposure he was being injured by those 17 chemicals”); Rodriguez, 5 F. Supp. 3d at 1139 (no claim stated 18 where complaint alleged employer learned of injuries from 19 plaintiffs themselves, such that employer could not have 20 concealed their existence from plaintiffs); see also Hughes 21 Aircraft Co., 44 Cal. App. 4th at 1797 (granting summary judgment 22 for defendants where plaintiff failed to show defendants knew 23 about his injuries, and stating that employer’s “prior knowledge 24 of its unsafe work environment and the potential risks to 25 employees . . . would be insufficient to establish section 26 3602[(b)(2)] liability”). 27 Although plaintiff alleges that defendants knew of and 28 concealed the presence of the alleged harmful substances, she 1 does not allege that defendants were aware the substances were 2 injuring her and concealed that information as well -– and 3 certainly not with the specificity required to state a claim for 4 fraud under Rule 9(b). 5 In her opposition, plaintiff argues that defendants, 6 upon discovering asbestos and other toxic or hazardous materials 7 in the building, should have drawn the connection between these 8 materials and the respiratory problems she was experiencing, and 9 should have investigated her complaints earlier so that they 10 could have discovered the materials sooner. (See Opp. to Mot. at 11 20-22 (Docket No. 18).) However, as noted, constructive or 12 imputed knowledge alone cannot support a claim under section 13 3602(b)(2). See Hughes Aircraft Co., 44 Cal. App. 4th at 1796 14 (citations omitted). Even if they could, these allegations are 15 absent from the First Amended Complaint itself and thus could not 16 preclude dismissal. (See FAC (Docket No. 5).) 17 The California Court of Appeal’s decision in Palesteni, 18 upon which plaintiff relies, suggests that a more relaxed 19 standard may apply in cases “involv[ing] an alleged work-related 20 cancer injury or other disease for which there is typically an 21 extended latency period between exposure to a toxic substance in 22 the work environment and the development of clinically 23 diagnosable symptoms.” Palesteni, 99 Cal. App. 4th at 96 n.14. 24 In that case, the court determined that it was sufficient at the 25 pleading stage to allege that defendants were aware that an 26 employee’s previously reported physical problems were caused by 27 injury- or disease-inducing substances they knew were present at 28 the workplace and that those problems were aggravated by 1 continued exposure to these substances. See id. at 97 (citing 2 Foster, 40 Cal. 3d at 312). 3 Even if such allegations suffice, however, the First 4 Amended Complaint still fails to state a claim under section 5 3602(b)(2) because it fails to even allege that defendants were 6 aware that the substances allegedly on the premises had caused 7 and were aggravating plaintiff’s respiratory problems. (See FAC 8 (Docket No. 18).) Although plaintiff’s opposition states in 9 passing that defendants “knew or should have known . . . the 10 cause of Plaintiff’s resp[ir]atory complaints and concealed the 11 cause,” (Opp. to Mot. at 22 (emphasis added) (Docket No. 18)), 12 this allegation does not appear in the First Amended Complaint 13 and thus cannot help it survive a motion to dismiss. Further, 14 because the First Amended Complaint indicates that plaintiff 15 began experiencing “clinically diagnosable symptoms” as early as 16 April 2012, (see FAC at ¶ 8 (Docket No. 5)), it is not clear that 17 the injuries plaintiff alleges fall into the category described 18 in Palesteni. 19 IV. CONCLUSION 20 Because plaintiff has requested to voluntarily dismiss 21 three of her claims, and because all of her remaining claims 22 other than fraudulent concealment are preempted by the Workers’ 23 Compensation Act, the court will grant defendants’ motion as to 24 the claims presented in counts one through eight and ten of the 25 First Amended Complaint. And because plaintiff’s claim for 26 fraudulent concealment, as currently pled, fails to state a claim 27 for which relief can be granted under 3602(b)(2), the court will 28 grant defendant’s motion as to the claim in count nine of the ene ne I IEE I I EE OS OE EER EES ee 1 First Amended Complaint as well. 2 IT IS THEREFORE ORDERED that defendants’ motion to 3 dismiss the First Amended Complaint in its entirety be, and the 4 same hereby is, GRANTED.4 Plaintiff is given twenty days from 5 the date of this Order to file a second amended complaint, if she 6 | can do so consistent with this Order. 7 | Dated: November 8, 2021 he bloom HK Ld. 8 WILLIAM B. SHUBB 5 UNITED STATES DISTRICT JUDGE [25] 26 4 Because the court concludes that defendants’ motion 27 must be granted for the reasons stated, the court does not reach defendants’ arguments that plaintiff’s claims are barred by 28 | statutes of limitations. (See Mot. at 4-7 (Docket No. 14-1).)