CHRISTOPHER H. WHELAN, INC.

Christopher H. Whelan, Esq. - SB 080823

11246 Gold Express Drive, Suite 100

Gold River, California 95670

Phone: (916) 635-5577

Fax: (916) 635-9159

 

Attorneys for Plaintiff, K. Smith

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

COUNTY OF FRESBERG

 

 

K. Smith,


          Plaintiff,


   v.


ZZZ , YYY dba XXX , WWW, UUU., VVV, MAT M.D. individually and dba MAT ENTERPRISES, QQQ and dba as TENNESSEE QQQ , INC, and DOES 1 through 100, Inclusive,


          Defendants.

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No.


COMPLAINT FOR DAMAGES

 

1)     WRONGFUL TERMINATION (BREACH OF CONTRACT)

2)     WRONGFUL TERMINATION (PUBLIC POLICY VIOLATION)

3)     DEFAMATION

4)     INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

5) NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS


[Damages Exceed $25,000]


JURY TRIAL DEMANDED

 

        Plaintiff is informed and believes and thereby complains and alleges as follows:

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PARTIES AND JURISDICTION

        1.   Plaintiff, K. Smith [hereinafter “Smith” or “Plaintiff”], was at all times relevant hereto, a resident of the State of California, County of FRESBERG , and an employee of Defendants, and each of them, at the ZZZ Hospital in FRESBERG , California, from April 25, 1997, until her wrongful termination on December 29, 2000.

        2.   ZZZ , , is a partnership doing business in California, County of FRESBERG , and owned and operated by Defendants, and each of them, including, YYY dba XXX , WWW , UUU., ZZZ and MAT, M.D. dba MAT ENTERPRISES, QQQ and dba TENNESSEE QQQ , and DOES 1 through 100, and each of them. Defendants, and each of them, owned and operated ZZZ Hospital in FRESBERG , California and at all relevant times here in were the employers of Plaintiff.

        3.   YYY dba XXX is and at all times relevant hereto was, a corporation of unknown origin, doing business in California, County of FRESBERG and a partner in ZZZ , and an employer of Plaintiff.

        4.   WWW [“BHC”] is and at all times relevant hereto was, a corporation of unknown origin, doing business in California, County of FRESBERG and a partner in ZZZ , and an employer of Plaintiff.

        5.   UUU. is and at all times relevant hereto was, a corporation of unknown origin, doing business in California, County of FRESBERG and a partner in ZZZ , and an employer of Plaintiff.

        6.   PPP is and at all times relevant hereto was, a corporation of unknown origin, doing business in California, County of FRESBERG and a partner in ZZZ , and an employer of Plaintiff.

        7.   Defendant MAT, M.D., individually and dba MAT ENTERPRISES, is, and at all times relevant hereto, was a resident of California a partner in ZZZ , and an employer of Plaintiff.

        8.   QQQ and dba as TENNESSEE QQQ is and at all times relevant hereto was, a corporation of unknown origin, doing business in California, County of FRESBERG and a partner in ZZZ , and an employer of Plaintiff.

        9.    All the above Defendants, and DOES 1 through 100, and each of them, employed Plaintiff and shall be jointly referred to throughout this complaint as “Defendant Employer” unless individual references are necessary.

        10.   The true names and capacities of the Defendants named herein as DOES 1 through 100, inclusive, whether individual, corporate, associate, or otherwise, are unknown to Plaintiff who therefore sues such Defendants by fictitious names pursuant to Code of Civil Procedure § 474. Plaintiff is informed and believes that DOE Defendants 1 through 100 are California residents and/or parents, subsidiaries, and/or sister corporations to Defendant Employer, and/or individuals responsible for the acts complained of herein. Plaintiff will amend this Complaint to show such true names and capacities when they have been determined. Plaintiff alleges all known and unknown Defendants, and all named Defendants, including corporate and individual Defendants and their parents, subsidiaries, their successors in interest, partners, and their employees and/or agents, acted on behalf of, and for the benefit of, at the direction of, and under the control of, and in conspiracy with, each and every Defendant, known or unknown, and their agents and/or employees, and each of them, to do the acts complained of herein.

STATEMENT OF FACTS

        11.   Plaintiff was hired by Defendant Employer on April 25, 1997, pursuant to an oral and implied contract, as the Professional Staff Coordinator for the ZZZ Hospital facility in FRESBERG , California, owned and operated by Defendants, and each of them. Throughout the next 3 years, Plaintiff received a number of promotions and ever increasing responsibilities, excellent performance reviews, praise, and commendations in recognition for her good performance. Plaintiff’s employment continued until December 29, 2000, when Defendant Employer breached said oral and implied employment contract and violated public policy by terminating Plaintiff in retaliation for her numerous complaints and reports regarding events and practices that created unsafe patient care and conditions at these health care facilities. Plaintiff’s termination was based upon false and pretextual reasons in retaliation for these reports and complaints to administrators, and for her threats to go to the Department of Health Services if conditions and patients’ care and safety were not improved. Plaintiff’s termination and retaliation violated California public policy as expressed in California Heath and Safety Code § 1278.5, Government Code § 12940 (g) and Labor Code §1102.5.

        12.   Plaintiff’s complaints to the hospital administrators, D. P. CEO, MAT and officers of XXX and the employees and agents of Defendants, and each of them, regarding patient safety, care, services and conditions of the facility included, but were not limited to, under-staffing and chronic staffing shortages. This under-staffing caused the excessive use of registry nurses who were given little, if any, preparation and orientation before they were placed in charge of units putting patients’ health and safety at risk. Plaintiff reported and complained that frequently units operated with little or no RN supervision. Staffing insufficiencies caused Labor Code violations regarding overtime, and the denial of breaks or meal times for the staff. Plaintiff also complained that reports that the Director of Nursing was drug-seeking were being ignored and not investigated, by T. M., the CEO at the time. Plaintiff again brought up this issue toD.P. , when he became CEO. Plaintiff reported untrained receptionists were forced to handle and respond to crisis line calls as a result of under-staffing. She also complained and reported that artificial caps were placed on census limiting admission.

        13.   Plaintiff also reported: Title 22 violations; staff working out of category; unauthorized and undisclosed clinical trials of drugs that were not properly authorized; misrepresentations and coverups regarding line staff credentials and evaluations in preparation for JCAHO [Joint Commission on Accreditation of Healthcare Organizations] surveys; improper confinement of voluntary patients; failure to investigate, follow-up, document, record, track or preserve incident reports or complaints by patients, their families and staff; unfair labor practices resulting in a mass exodus of nursing staff thereby putting patients at risk; failure to perform medical peer review and infection control functions; and placement of an adolescent in the Adult Chemical Dependency Units. Finally, out of frustration and just before her termination, she informed the administration that she was going to report these serious problems to the Department of Health Services if improvements were not immediately obtained.

        14.    From about May 2000, until Plaintiff’s termination, Defendants, and each of them, and their agents and employees, engaged in a continuous course of harassment, intimidation, hostility, and retaliation against Plaintiff because of her continued complaints and reports of events and practices concerning the care, services and conditions at the facility that put patients’ health and safety at risk. Plaintiff is informed and believes that this retaliation and defamation has been continuous to this day and she seeks damages for all ongoing publication and foreseeable republication of this defamation.

        15.   Defendants, and each of them, negligently and recklessly hired, employed, supervised, disciplined and trained its managers, supervisors, directors, employees and agents who failed to prevent or timely stop the harassment, retaliation and defamation complained of herein. Defendants, and each of them, had actual and constructive notice of: these complained of acts; prior wrongful and retaliatory acts against Plaintiff and others who complained of events, conditions and practices that put patients’ health and safety at risk; Defendants’ prior negligent and reckless failure to prevent and timely stop such conduct; and Defendants’ negligent and intentional failure to take effective action to prevent the complained of retaliation and harassment.

        16.   Defendants, and each of them, intentionally and negligently breached their duty to prevent and stop retaliation by failing to hire, train, discipline and provide competent supervisors, make and enforce rules, give proper and effective orders and discipline, direction, and training, select and employ appropriate persons, and select, train and supervise employees and agents with due care.

        17.   Defendants, and each of them, intentionally and negligently failed to instruct their agents and employees to refrain from harassment, retaliation and defamation; unreasonably failed to adopt rules, policies, and regulations designed to prevent retaliation, harassment and defamation from occurring; unreasonably employed persons they knew, or should have known, to be engaged in discrimination, harassment and retaliation; failed to properly supervise its employees to prevent these illegal acts from occurring; stood by and took no effective action when they knew, or should have known, they were occurring; failed to prevent these acts when they could have reasonably been prevented; authorized, encouraged and then ratified the acts complained of herein.

        18.   Said retaliation, tortious wrongful termination, defamation, intentional infliction and negligent infliction of emotional distress, did directly and proximately cause economic injury and damage to Plaintiff. Also, Plaintiff has been subjected to severe emotional distress because of the retaliation, tortious wrongful termination and defamation complained of herein.

        19.   Plaintiff’s oral and implied employment contract with Defendant Employer was for an indefinite period. Said employment contract was reinforced and amplified by certain written personnel practices, memoranda, policies, and procedures of Defendant Employer based upon which Plaintiff had a reasonable expectation of continued employment with discharge only for good cause proven. These written policies and procedures and actual practices included a program of “progressive discipline” through which the Defendant Employer created self-imposed limitations on any discharge or discipline of an employee. These written policies and actual practices expressly limited the grounds for discharge and created self imposed mandatory pre-termination steps and procedures. Plaintiff reasonably expected to be protected by, and to benefit from, these policies and practices before any termination occurred. Plaintiff also expected, based upon the policies, practices, and express and implied promises of Defendants, to be protected by a thorough, fair and complete investigation before any discipline or termination by Defendants. These policies and practices along with the events, conduct, and promises described herein created Plaintiff’s reasonable belief that Plaintiff could be terminated only for good cause. The additional causes for Plaintiff’s reasonable belief of termination only for good cause include:

        a.            Plaintiff was a long-term employee with over 3 years of excellent service for Defendant Employer. She was highly praised, orally and in writing, for her professional expertise and performance with Defendant Employer.

        b.            There was a general lack of non-pretextual criticism of Plaintiff’s performance before her complaints and reports described herein.

        c.            Plaintiff received praise, commendations, recognition, increased responsibility, promotions and excellent performance reviews for her good performance.

        20.   Plaintiff is informed and believes that Defendants, and each of them, in an attempt to justify the improper and illegal termination of Plaintiff without good cause, defamed her and intentionally, negligently and recklessly published false and defamatory per se statements. These malicious statements were known to be false by the publishers, who were agents and employees of Defendants, and each of them, and were excessively published for the malicious and improper purpose of justifying an illegal termination and retaliation against Plaintiff for her complaints of, and opposition to, unsafe treatment of patients of the health care facility.

        21.   These false and defamatory statements included express and implied: accusations that Plaintiff violated company policies; that she was such a poor performer; that she deserved written warnings and disciplinary actions against her; that she was incompetent; stole software and files; made false complaints; and was dishonest. These and other similar false statements expressly and impliedly published that Plaintiff was dishonest, lazy, incompetent, a troublemaker, and a poor performer. These statements were published and foreseeably republished, internally and externally, and were understood by the recipients in their defamatory sense, and to be of and concerning Plaintiff.

 

FIRST CAUSE OF ACTION

(WRONGFUL TERMINATION (BREACH OF CONTRACT))

(Against Defendant Employer Only)

 

        22.   As a first, separate, and distinct cause of action, Plaintiff complains against Defendant Employer and DOES 1 through 100, inclusive, and realleges all the allegations contained in the complaint, and incorporates them by reference into this cause of action as though fully set forth herein.

        23.   Plaintiff was hired by Defendant Employer on April, 25, 1997, under the terms of an oral and implied oral contract.

        24.   After Plaintiff was initially hired by Defendant Employer, Plaintiff undertook and continued employment, and duly performed all of the conditions of the above said employment agreement to be performed by Plaintiff until prevented from doing so by Defendants’ illegal termination of Plaintiff. At the time of Plaintiff’s termination, she was ready, willing, and able to perform all of the conditions of the oral and implied employment agreement to be performed by Plaintiff.

        25.   On or about December 29, 2000, Defendant Employer and DOES 1 through 100, inclusive, breached the total employment agreement by terminating Plaintiff for false, pretextual and defamatory reasons in retaliation for her reports and complaints.

        26.   As a direct and proximate result of the Defendant Employer's breach of the total employment agreement, Plaintiff has suffered and continues to suffer substantial losses in earnings, vacation pay, raises, etc., which Plaintiff would have received had Defendant Employer not breached the agreement. Plaintiff seeks damages for these injuries which exceed the jurisdictional limits of this court and will be established according to proof at trial.

        27.   WHEREFORE, Plaintiff requests relief as hereinafter provided.

 

SECOND CAUSE OF ACTION

(WRONGFUL TERMINATION (PUBLIC POLICY VIOLATION))

(Against Defendant Employer Only)

 

        28.   As a second, separate, and distinct cause of action, Plaintiff complains against Defendant Employer and DOES 1 through 100, inclusive, and realleges all the allegations contained in the complaint, and incorporates them by reference into this cause of action as though fully set forth herein.

        29.   Defendant Employer, on or about December 29, 2000, illegally terminated Plaintiff from her employment because of Plaintiff’s complaints and reports of care, service and conditions that put patients’ health and safety at risk, and because she was going to report these conditions to the Department of Health Services in violation of the public policy expressed in California Heath and Safety Code § 1278.5, Government Code § 12940 (g) and Labor Code § 1102.5.

        30.   As a proximate result of this wrongful termination in violation of public policy, Plaintiff was caused to suffer, and continues to suffer, from humiliation, anxiety, severe emotional distress, worry, fear, and special damages (to include lost wages) all to her special and general damage according to proof at the time of trial.

        31.   Defendant Employer did the things hereinabove alleged, intentionally, oppressively, and maliciously with an evil and malevolent motive to injure Plaintiff. These acts, which resulted in Plaintiff’s wrongful termination against public policy, were obnoxious, despicable, and ought not to be suffered by any member of the community.

        32.   All actions of Defendant Employer, Defendants, their employees and agents, and each of them as herein alleged, were known, ratified and approved by the officers or managing agents of Defendant Employer, Defendants, and each of them. Therefore, Plaintiff is entitled to punitive or exemplary damages against the Defendant Employer, in an amount to be determined at the time of trial.

        33.   WHEREFORE, Plaintiff requests relief as hereinafter provided.

 

THIRD CAUSE OF ACTION

(DEFAMATION)

(Against All Defendants)

 

        34.   As a third, separate, and distinct cause of action, Plaintiff complains against Defendants, and DOES 1 through 100, inclusive, and realleges all the allegations contained in the complaint, and incorporates them by reference into this cause of action as though fully set forth herein.

        35.   Plaintiff is informed and believes Defendants, and each of them, by the herein-described acts, conspired to, and in fact, did negligently, recklessly, and intentionally caused excessive and unsolicited internal and external publications of defamation, of and concerning Plaintiff, to third persons and to the community. These false and defamatory statements included express and implied: accusations that Plaintiff violated company policies; that she was such a poor performer; that she deserved written warnings and disciplinary actions against her; that she was incompetent; a troublemaker; stole files and software; made false complaints; and was dishonest. These and other similar false statements expressly and impliedly stated that Plaintiff was dishonest, lazy, incompetent, and a poor performer.

        36.   While the precise dates of these publications are not known to Plaintiff, she recently discovered (within approximately the last 90 days) and is informed and believes the publications may have started in late September 2000, for the improper purpose of retaliating against her for her above said complaints and reports about patient care, service, and conditions, which put patients’ safety and health at risk, and were later published and foreseeably republished to first cause, and then justify, Plaintiff’s wrongful and illegal termination. These publications were outrageous, negligent, reckless, intentional, and maliciously published and republished by Defendants, and each of them. Plaintiff is informed and believes that the negligent, reckless, and intentional publications by Defendants, and each of them, were and continue to be, foreseeably published and republished by Defendants, their agents and employees, recipients, in the community. Plaintiff hereby seeks damages for these publications and all foreseeable republications discovered up to the time of trial.

        37.   During the above-described time-frame, Defendants, and each of them, conspired to, and in fact, did negligently, recklessly, and intentionally cause excessive and unsolicited publication of defamation, of and concerning Plaintiff, to third persons, who had no need or desire to know. Those third person(s) to whom these Defendants published this defamation are believed to include, but are not limited to, other agents and employees of Defendants, and each of them, and the community, all of whom are known to Defendants, and each of them, but unknown at this time to Plaintiff.

        38.   The defamatory publications consisted of oral and written, knowingly false and unprivileged communications, tending directly to injure Plaintiff and Plaintiff’s personal, business, and professional reputation. These publications included the following false and defamatory statements (in violation of Civil Code §§ 45 and 46(3)(5)) with the meaning and/or substance that Plaintiff: violated company policies; that she was such a poor performer that she deserved written warnings and disciplinary actions against her; that she was incompetent; dishonest; untrustworthy; a troublemaker; and made false complaints. These and similar statements published by Defendants, and each of them, expressly and impliedly asserted that Plaintiff was incompetent, dishonest, and a poor employee.

        39.   Plaintiff is informed, believes and fears that these false and defamatory per se statements will continue to be published by Defendants, and each of them, and will be foreseeably republished by their recipients, all to the ongoing harm and injury to Plaintiff’s business, professional, and personal reputations. Plaintiff also seeks redress in this action for all foreseeable republications, including her own compelled self-publication of these defamatory statements.

        40.   The defamatory meaning of all of the above-described false and defamatory statements and their reference to Plaintiff, were understood by these above-referenced third person recipients and other members of the community who are known to Defendants, and each of them, but unknown to Plaintiff at this time.

        41.    None of Defendants’ defamatory publications against Plaintiff referenced above are true.

        42.   The above defamatory statements were understood as assertions of fact, and not as opinion. Plaintiff is informed and believes this defamation will continue to be negligently, recklessly, and intentionally published and foreseeably republished by Defendants, and each of them, and foreseeably republished by recipients of Defendants’ publications, thereby causing additional injury and damages for which Plaintiff seeks redress by this action.

        43.   Each of these false defamatory per se publications (as set forth above) were negligently, recklessly, and intentionally published in a manner equaling malice and abuse of any alleged conditional privilege (which Plaintiff denies existed), since the publications, and each of them, were made with hatred, ill will, and an intent to vex, harass, annoy, and injure Plaintiff in order to justify the illegal and cruel actions of Defendants, and each of them, to cause further damage to Plaintiff’s professional and personal reputation, to cause her to be fired, to justify her firing, and to retaliate against Plaintiff for prior ill will, rivalry, and disputes in retaliation for her objections to unsafe and improper treatment of patients.

        44.   Each of these publications by Defendants, and each of them, were made with knowledge that no investigation supported the unsubstantiated and obviously false statements. The Defendants, published these statements knowing them to be false, unsubstantiated by any reasonable investigation and the product of hostile witnesses. These acts of publication were known by Defendants, and each of them, to be negligent to such a degree as to be reckless. In fact, not only did Defendants, and each of them, have no reasonable basis to believe these statements, but they also had no belief in the truth of these statements, and in fact knew the statements to be false. Defendants, and each of them, excessively, negligently, and recklessly published these statements to individuals with no need to know, and who made no inquiry, and who had a mere general or idle curiosity of this information.

        45.   The above complained-of publications by Defendants, and each of them, were made with hatred and ill will towards Plaintiff and the design and intent to injure Plaintiff, Plaintiff’s good name, her reputation, employment and employability. Defendants, and each of them, published these statements, not with an intent to protect any interest intended to be protected by any privilege, but with negligence, recklessness and/or an intent to injure Plaintiff and destroy her reputation. Therefore, no privilege existed to protect any of the Defendants from liability for any of these aforementioned publications or republications.

        46.   As a proximate result of the publication and republication of these defamatory statements by Defendants, and each of them, Plaintiff has suffered injury to her personal, business and professional reputation including suffering embarrassment, humiliation, severe emotional distress, shunning, anguish, fear, loss of employment, and employability, and significant economic loss in the form of lost wages and future earnings, all to Plaintiff’s economic, emotional, and general damage in an amount according to proof.

        47.   Defendants, and each of them, committed the acts alleged herein recklessly, maliciously, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, for an improper and evil motive amounting to malice (as described above), and which abused and/or prevented the existence of any conditional privilege, which in fact did not exist, and with a reckless and conscious disregard of Plaintiff’s rights. All actions of Defendants, and each of them, their agents and employees, herein alleged were known, ratified and approved by the Defendants, and each of them. Plaintiff thus is entitled to recover punitive and exemplary damages from Defendants, and each of them, for these wanton, obnoxious, and despicable acts in an amount based on the wealth and ability to pay according to proof at time of trial.

        48.   WHEREFORE, Plaintiff requests relief as hereinafter provided.

 

FOURTH CAUSE OF ACTION

(INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)

(Against All Defendants)

 

        49.   As a fourth, separate, and distinct cause of action, Plaintiff complains against Defendants, and DOES 1 through 100, inclusive, and realleges all the allegations contained in the complaint, and incorporates them by reference into this cause of action as though fully set forth herein.

        50.   The conduct complained of hereinabove was outside the conduct expected to exist in the workplace, was intentional and malicious and done for the purpose of causing Plaintiff to suffer humiliation, mental anguish, and emotional and physical distress. Defendants’,and each of their conduct, in confirming and ratifying the complained of conduct, was done with the knowledge that Plaintiff’s emotional and physical distress would thereby increase, and was done with a wanton and reckless disregard of the consequences to Plaintiff.

        51.   As a proximate result of Defendants,’ and each of their, intentional infliction of emotional distress as hereinabove alleged, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental anguish, and emotional and physical distress, and has been injured in mind and health. As a result of said distress and consequent harm, Plaintiff has suffered such damages in an amount in accordance with proof at time of trial.

        52.   Defendants, and each of them, engaging in the conduct as hereinabove alleged, acted fraudulently, maliciously, oppressively and with reckless disregard of Plaintiff’s rights and safety, and thereby entitling Plaintiff to an award of punitive damages. Defendants, and each of them, authorized, ratified, knew of the wrongful conduct complained of herein, but failed to take immediate and appropriate corrective action to remedy the situation and thereby acted fraudulently, maliciously, oppressively and with reckless disregard of Plaintiff’s rights and safety, and thereby entitling Plaintiff to an award of punitive damages.

        53.   WHEREFORE, Plaintiff requests relief as hereinafter provided.

FIFTH CAUSE OF ACTION

(NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS)

(Against All Defendants)

 

        54.   As a fifth, separate, and distinct cause of action, Plaintiff complains against Defendants, and DOES 1 through 100, inclusive, and realleges all the allegations contained in the complaint, and incorporates them by reference into this cause of action as though fully set forth herein.

        55.   In the alternative, if said conduct of Defendants, and each of them, and of their agents and employees was not intentional, it was negligent and Plaintiff is thereby entitled to general damages for the negligent infliction of emotional distress.

        56.   WHEREFORE, Plaintiff requests relief as hereinafter provided.

PRAYER

        WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows:

        1.   For a money judgment for loss of employability, mental pain and anguish and emotional distress, according to proof;

        2.   For general, presumed and special damages based upon damage to Plaintiff’s business and personal reputation;

        3.   For a money judgment representing compensatory damages including lost past and future wages, commissions, and all other sums of money, including employment benefits, together with interest on said amounts, and any other economic injury to Plaintiff, according to proof;

        4.   For an award of punitive damages against any and/or all Defendant(s);

        5.   For costs of suit, including attorney fees under any applicable statutory or contractual basis;

        6.   For prejudgment interest under Civil Code § 3288 and Code of Civil Procedure § 998, and any other applicable statutory, or contractual basis;

        7.   For prejudgment interest according to statute;

        8.   For costs of suit according to statute; and

        9.   For any other relief that is just and proper.

 

JURY TRIAL DEMANDED

        Plaintiff demands trial of all issues by jury.

 

Dated: December 15, 2001                 CHRISTOPHER H. WHELAN, INC.

 

 

 

 

                                                            _______________________________

                                                            Christopher H. Whelan

                                                            Attorneys for Plaintiff, K. Smith