Brief Second Responsive Supplemental Brief

Brief

Cal. Super. - 2nd Dist.February 23, 2018

Electronically FILED by [quperior Court of California, County of Los Angeles on 02/11/2020 03:32 PM Sherri R. Carter, Executive Officer/Clerk of Court, by R. Sanchez, Deputy Cl ; 1 ||Kenneth R. Pedroza, SBN 184906 (kpedroza@colepedroza.com) 2 || Dana L. Stenvick, SBN 254267 3 (dstenvick@colepedroza.com) Alysia B. Carroll, SBN 303136 4 || (acarroll@colepedroza.com) COLE PEDROZA LLP 5/2295 Huntington Drive San Marino, CA 91108 6 || Tel: (626) 431-2787 7 Fax: (626) 431-2788 8 || Attorneys for Defendants, SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, 9 || THE PERMANENTE MEDICAL GROUP, INC, KAISER FOUNDATION HOSPITALS, and 10 || KAISER FOUNDATION HEALTH PLAN, INC. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT 13 14 EDUARDO SERMINO, an individual, Case No. BC695609 : Hon. Anthony Mohr, Department 96 15 Plaintiff, 16 DEFENDANT SCPMG’S SECOND - V. RESPONSIVE SUPPLEMENTAL 17 BRIEF IN SUPPORT OF ITS THE PERMANENTE MEDICAL GROUP, | ALTERNATIVE MOTION FOR 18 INC., a California corporation, SUMMARY ADJUDICATION OF SOUTHERN CALIFORNIA PLAINTIFF’S CLAIM FOR PUNITIVE 19 || PERMANENTE MEDICAL GROUP dba | DAMAGES 20 KAISER PERMANENTE, a California business entity form unknown, and DOES 1 | Date: ~ February 19, 2020 21 through 100, inclusive, Time: 10:00 a.m. Dept.: 96 22 Defendants. Action filed: February 21, 2018 23 Trial date: ~~ March 9, 2020 24 25 26 27 28 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION Oo 0 9 A Ln k W N N ND N N N O N ND N m o e e m e t e a p m e m e m pe d p m 0 9 O N Un A W N = O O OV N N N NI B E E W N = DO TABLE OF CONTENTS L INTRODUCTION AND SUMMARY OF ARGUMENT ......cccccooinviniininiiiiinnns 2 IL. PUNITIVE DAMAGES CANNOT BE IMPOSED AGAINST SCPMG................ 2 A. Plaintiff Continues To Overlook The Most Fundamental Element Of His Burden - Malice, Oppression, Or Fraud..........cccccevveervenicneiiennicniennenns 3 B. There Is Still No Evidence To Create A Triable Issue That A Managing Agent Of SCPMG Engaged In Fraudulent, Oppressive, Or Malicious CONAUCT.......couueiriieriieiieeie etcetera sree ae 4 C. Plaintiff Grossly Overestimates The Importance Of His Termination TO SCPMG cities sess sees sre sneer 7 ITI. CONCLUSION cotter seers esr sree sste sate sieesrressee ssn e nes sre sane ssaeeneesnees 9 DECLARATION OF DANA L. STENVICK ....oooiiiiiiieiiieieenieeieeiesresseessre see re s esneens 10 i SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE FOR SUMMARY ADJUDICATION O O 00 9 OO Wn hr WwW N e N N N N N N N N O N e m e d e m p m e k e m e m p d 0 NN O N Wn ph W N = O 0 0 NN R E W I N D = O or since the filing of Defendant Southern California Permanente Medical Group’s I. INTRODUCTION AND SUMMARY OF ARGUMENT The facts underlying this case have not changed since the hearing of this motion, (“SCPMG”) first supplemental brief on this issue. SCPMG’s decision to terminate plaintiff Eduardo Sermino’s employment was based on its good faith determination that plaintiff failed twice in his most basic role as a social worker: to take appropriate action to report suspected child abuse to the appropriate authorities. By no stretch of the imagination can the decision to terminate plaintiff's employment be viewed as anything other than lawful, appropriate, and necessary to protect other children and patients from potentially serious harm. Plaintiff has been afforded seemingly endless opportunities to show the court why he might be able to recover punitive damages against SCPMG in this case, plaintiff has systematically failed show that he can satisfy his heightened burden of establishing that the termination decision was malicious, fraudulent, or oppressive by clear and convincing evidence. SCPMG now has been deprived of a ruling on its alternative motion for summary adjudication of plaintiffs punitive damages claim against it for over four months. Plaintiff’s latest supplemental brief on this issue is more of the same. Plaintiff’s arguments continue to rest on rank speculation and the mischaracterization of evidence. He has, yet again, failed to meet his burden of proof because the undisputed facts of this case prevent him from doing so. SCPMG’s alternative motion for summary adjudication of the punitive damages claim should be granted. IL PUNITIVE DAMAGES CANNOT BE IMPOSED AGAINST SCPMG In his second supplemental brief, plaintiff again completely ignores his burden to outline each triable issue of material fact showing oppression, malice, or despicable conduct. Even now, with plaintiff's third bite at the apple, there is a complete lack of explanation of which facts plaintiff believes create a triable issue of material fact that SCPMG engaged in fraud, oppression, or malice sufficient to state a prima facie claim for 2 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION OO 00 NN O N Wn R W ND N N ND ND ND N N N N N m e e m e m e e e d e d e m c o NN O N Wn ph W N D - = O O N N Y N B N W N D = oO punitive damages under Civil Code section 3294 by clear and convincing evidence to avoid summary adjudication of the claim. Plaintiff’s continued silence on the issue is telling. A. Plaintiff Continues To Overlook The Most Fundamental Element Of His Burden - Malice, Oppression, Or Fraud Despite plaintiff's arguments to the contrary, a mere showing of a statutory violation is not sufficient to support a claim under the FEHA is not sufficient for purposes of punitive damages. (See Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 620.) “Something more than the mere commission of a tort is always required for punitive damages.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 328.) There must also be proof, by clear and convincing evidence, of “oppression, fraud, or malice” by a managing agent of the defendant. (Civ. Code, § 3294, subd. (a), emphasis added.) Plaintiff cannot meet this standard. Plaintiff admits that he did not contact law enforcement in connection with his assessment of a 5-year old child who claimed to have been sodomized by her cousin less than 96 hours earlier. (UMF 40, 44, Ex. G.) He also admits that he did not contact DCFS to report possible child abuse or neglect by the suicidal postpartum patient, despite knowing that the suicidal postpartum patient had ingested “pills,” had a plan to kill herself, and was “worried about her two children.” (UMF 20.) Despite admitting the facts which served as the basis for Gutierrez’s termination decision, plaintiff contends that Gutierrez’ termination decision - which involved remarkably little discretion -was motivated by his gender, sexual orientation, and age. Plaintiff cites to his own declaration, nothing more, to show that Gutierrez referred to him as a girl, preferred women to men as social workers, and wanted him to retire. The alleged conduct by Gutierrez, even if true, does not rise to the level of outrageous conduct exceeding the bounds of decency tolerated in civilized society and thus cannot form the basis of a punitive damages claim as a matter of law. Rather, the 3 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION © 00 J O&O Un BH W W N D = N O N N N N N N ND O N M m e m e b e m e m e d p m pe pe 00 NN O N Wn Rr W N O Y N N N N W N = O undisputed evidence affirmatively demonstrates that Gutierrez made the decision to terminate plaintiff's employment in order to protect other patients and children from harm caused by plaintiff’s negligence, incompetence, and ineptitude. What is more, plaintiff's second supplemental brief does not, in a single instance, 9% 6 contain the words “malice,” “oppression,” or “fraud,” nor does it offer any explanation of] what facts exhibit conduct amounting to malice, oppression, or fraud. Instead, plaintiff spends the entirety of his second supplemental brief discussing the managing agent distinction-an element which is inconsequential without clear and convincing evidence of malice oppression or fraud. Again, plaintiff chose to overlook this foundational element of his punitive damages claim, perhaps because there is no evidence to substantiate it. For this reason, plaintiff is precluded from asserting a claim for punitive damages against SCPMG as a matter of law. B. There Is Still No Evidence To Create A Triable Issue That A Managing Agent Of SCPMG Engaged In Fraudulent, Oppressive, Or Malicious Conduct Even if plaintiff gave some indication of what he believed to be malicious, oppressive, or fraudulent conduct (which he does not), he still would be unable to assert a claim for punitive damages because there is no evidence that a managing agent of SCPMG engaged in that unidentified conduct. Again, plaintiff fails to cite a single piece of legal authority to substantiate his argument that the termination decision was made by a managing agent of SCPMG. As SCPMG noted in its first supplemental brief, the term “managing agent” in Civil Code section 3294 includes “only those corporate employees who exercise substantial independent authority and judgment in their corporate decision making so that their decisions ultimately determine corporate policy.” (White v. Ultramar (1999) 21 Cal.4th 563, 566-567; accord Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 422.) Mere authority “to hire and fire employees” does not render a “supervisory employee a managing agent under section 3294.” (White v. Ultramar, supra, 21 Cal.4th at p. 566.) 4 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION © 0 9 O N Wn B W ND D N D N N N N N N N Ee e e e m e e e d e m e d p m 0 NN O N Wn hr W N R O VW NN ND R A W N D N = Oo The “critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy.” (Kelly-Zurian v. Wohl Shoe Co., supra, 22 Cal.App.4th at p. 421 [the senior-most supervisor in a corporation's Southern California business, having no authority to set or change corporate policy, is not a managing agent]; accord Snider v. Superior Court (2003) 113 Cal. App.4th 1187, 1209. “Corporate policy” means the “formal policies that affect a substantial portion of the company and that are the type likely to come to the attention of corporate leadership. It ig this sort of broad authority that justifies punishing an entire company for an otherwise isolated act of oppression, fraud, or malice.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714-715.) Plaintiff argues that Gutierrez is a managing agent of SCPMG because she “sets policies that apply to the Social Work department.” (PIf’s Second Supp. Brief, p. 9.) What plaintiff seems to miss is that setting social work specific policies at Baldwin Park is a far cry from having the authority to set or change policies that affect “a substantial portion” of SCPMG such that it justifies punishing the entire organization for the alleged isolated acts of oppression, fraud, or malice. (See, Roby v. McKesson Corp., supra, 47 Cal.4th at 714-715.) Linda Gutierrez, is neither a corporate leader nor partner physician of SCPMG and had no authority to change company policy as contemplated by Roby, supra. (UMF No. 76, and PIf’s response thereto.) Gutierrez had the authority to hire and fire employees, a fact which, standing alone, does not make Gutierrez a managing agent of SCPMG. In his second supplemental brief, plaintiff argues that because Gutierrez requires approval before beginning an investigation, is required to consult with human resources, and requires approval of the termination decision, Gutierrez was not the sole decision maker. (See PIf’s Second Supplemental Brief, p. 1.) He then asks this Court to infer that because there is a triable issue as to whether Gutierrez was the sole decision-maker, there is a triable issue as to whether the other alleged decision-makers were a “managing agent” within the meaning of Civil Code section 3294. 5 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION OO 0 9 OA Un pH W O N f k o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 57 28 Plaintiff’s speculative argument is based entirely on the mischaracterization of deposition testimony which is bent to support a false narrative. Plaintiff’s focal point is a single email in which Mildred Levey, a Human Resources Director at the Baldwin Park Medical Center, stated simply that “the termination has been approved.” (P1f’s Response to UMF No. 76.) Even if the court were to consider the unauthenticated email from Levey as admissible evidence (it is not), the email does not create a triable issue as to whether someone other than Gutierrez was the decisionmaker. The point that plaintiff continues to overlook is that approval of a decision does not equate to making a decision. The email exchange with Levey merely establishes that human resources weighed in on the merit of Gutierrez’s decision to terminate plaintiff's employment based upon Gutierrez’s determination that plaintiff had violated policies directly applicable to him as a social worker when he (1) failed to report suspected child abuse to the Department of Children and Family Services, and (2) failed to report the suspected rape of a child to the police. The provision of human resources consulting does not establish control over the decision-making process. (Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 738; Maddock v. KB Homes, Inc. (C.D. Cal. 2007) 631 F.Supp.2d 1226, 1241-1242.) This characterization of the email is supported by the testimony of several witnesses. LeVey herself testified that Gutierrez decided she wanted to terminate plaintiff’s employment, then HR and legal “reviewed the case, and based on how egregious it was, [they] supported the termination.” (Deposition of Mildred LeVey (“LeVey Depo”), 70:24-71:10.) Sheryl Sack, the Chief Administrative Officer of the Baldwin Park Medical Center at the time, testified that her approval was not necessary before the actual termination could take place. (Deposition of Sheryl Sack (“Sack Depo.”), 104:24-105:4.) As plaintiff correctly pointed out in his second supplemental brief, Gutierrez made a point of keeping leadership informed about the progress of her investigation and of her decision to terminate. (See, e.g., Deposition of Phyllis Anderson (“Anderson Depo.”), 38:20-39:16.) However, those in leadership roles like Anderson did not offer any guidance or input on the investigation or termination decision. (/bid.) In 6 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION O O 0 9 O N Wn kr W O N p- t oS 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 577 28 fact, Anderson testified that she would not get involved in any investigation in order to maintain objectivity in the event she would need to be called in to review the results of the investigation. (Anderson Depo., 58:15-59:8.) The fact that Gutierrez consulted with human resources before acting on her decision to terminate plaintiff’s employment and kept leadership apprised of her progress does not create a triable issue of fact as to whether a managing agent of SCPMG acted with fraud, oppression, or malice sufficient to merit a punitive damages claim under Civil Code section 3294. Not only has plaintiff failed to produce evidence that Sack, LeVey, and Anderson may have done anything more than what was required in their roles as human resources and administrative personnel, plaintiff cites no evidence to show that these individuals “exercise[d] substantial independent authority and judgment,” or that she had any authority over “corporate decision making so that their decisions ultimately determine corporate policy” of SCPMG. (White, supra, 21 Cal.4th at pp. 566-567.) Finally, and perhaps most importantly, plaintiff cites no evidence to support even a remote inference that anyone other than Gutierrez made comments about gender, age, and/or sexual orientation toward plaintiff. Indeed, plaintiff admits that he did not report or otherwise discuss Gutierrez’s alleged inappropriate comments with anyone at any time prior to his termination. (UMF No. 74.) Thus, to the extent that someone else may have been involved in the termination decision, there is not a shred of evidence to impute Gutierrez’s alleged discriminatory animus to anyone else as a matter of law. There is no evidence before the court to create a triable issue of fact that a managing agent of SCPMG engaged in an act of fraud, oppression or malice. Plaintiff is therefore not entitled to maintain a punitive damages claim against SCPMG as a matter of law. C. Plaintiff Grossly Overestimates The Importance Of His Termination To SCPMG In his second supplemental brief, plaintiff argues that his termination “was significant for the organization because it impacted SCPMG’s budget.” (PIf’s second supplemental brief, p. 10.) From there, plaintiff proceeds to steep in speculation 7 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION O O 0 9 O N Un hr W O N N N N N N N NN N N H r mm e m e m p m md e m pe p e 00 NN O N Wn bh W N = OO VW N N N R E W N = O regarding the impact of his termination (or rather his salary) on SCPMG’s budget. In an attempt to substantiate this conjecture, plaintiff points out that budgets were important to both Gutierrez and Anderson. (/bid.) Management and upper leadership of an organization being concerned about budgeting is hardly unusual, and indicates nothing more than both Gutierrez and Anderson were concerned with fulfilling their obligations to the organization as required by their respective positions. In fact, Anderson testified that while a manager’s ability to stay within their department’s budget is one factor in determining their bonus compensation, it only one of many factors. (Anderson Depo., 34:18-35:10.) What is more, a manager who exceeds their budget in a given year can still receive a bonus based on the other evaluative factors. (/bid.) It should also be noted that Gutierrez herself testified that she had no discretion over her department’s budget. She “oversees” her department budget which is set by the head of finance. (Gutierrez Depo., 157:22-158:5.) Therefore, plaintiff's speculation that Gutierrez terminated for budgetary reasons is unfounded. This argument also contradicts plaintiff’s argument that he was terminated based on Gutierrez’s alleged discriminatory animus toward him. // // 1 // // // 1! 1! I! 1! // 8 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION O O 00 NN O N Wn Br W N N N N N N N N N N m e e m e e e m e m e d p m c o 9 OO wn rr W N D = OO VO N N N R E W I N D = O III. CONCLUSION For the reasons set forth above and those contained in the papers and argument already submitted, SCPMG’s alternative motion for summary adjudication of plaintiff’s claim for punitive damages should be granted. DATED: February 11, 2020 COLE PEDROZA LLP ow Npeh Kenneth R. Pedroza Dana Stenvick Alysia B. Carroll Attorneys for Defendants, SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, THE PERMANENTE MEDICAL GROUP, INC., KAISER FOUNDATION HOSPITALS, and KAISER FOUNDATION HEALTH PLAN, INC. 9 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION OO 00 3 ON Wn H A W N = N N N N N N N N N N mm e m e m e m e m p m em p d pe 0 NI O Y Un BA W N = O VW N N N R A W N D R Oo DECLARATION OF DANA L. STENVICK I, Dana L. Stenvick, declare as follows: 1. I am an attorney duly admitted to practice law in the State of California. I am an attorney with the law firm of Cole Pedroza LLP, counsel for defendants Southern California Permanente Medical Group, The Permanente Medical Group, Inc, Kaiser Foundation Hospitals, and Kaiser Foundation Health Plan, Inc. herein. I make this declaration based upon personal knowledge. If called upon to testify, I could and would competently testify to the following. | 2: I am aware that plaintiff took the deposition of Mildred LeVey in this matter. A true and correct copy of the cover page and pages 70-71 of the Deposition of Mildred LeVey is attached hereto as Exhibit A. 3. I am aware that plaintiff took the deposition of Sheryl Sack in this matter. A true and correct copy of the cover page and pages 104-105 of the Deposition of Sheryl Sack is attached hereto as Exhibit B. 4. I am aware that plaintiff took the deposition of Phyllis Anderson. in this matter. A true and correct copy of the cover page and pages 34-35, 38-39, 58-59, and 157-158 of the Deposition of Phyllis Anderson is attached hereto as Exhibit C. 5. I am aware that plaintiff took the deposition of Linda Gutierrez in this matter. A true and correct copy of the cover page and pages 200-202 of the Deposition of Linda Gutierrez is attached hereto as Exhibit D. | I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 11th day of February 2020 at San Marino, California. 10-55 Dana L. Stenvick~" 10 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION EXHIBIT A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Atkinson-Baker, Inc. www.depo.com SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES EDUARDO SERMINO, an individual, Plaintiff, VS. THE PERMANENTE MEDICAL GROUP, INC., a California corporation; SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP dba KAISER PERMANENTE, a California business entity form unknown; and DOES 1 through 20, Inclusive, Defendants. n N Nn n e n f ne a ne ne ne SN Se Se Se S e S e DEPOSITION OF Case No. : BC 695609 MILDRED RUTH LEVEY-GARCIA GLENDALE, CALIFORNIA THURSDAY, JANUARY 9, 2020 ATKINSON-BAKER, INC. (800) 288-3376 REPORTED BY: KARINE SEPEDJIAN, CSR No. FILE NO. : ADOCEBG6 12515 Mildred Ruth Levey-Garcia January 09, 2020 Ow © JI Oo ui 10 Ld 12 13 14 15 16 dd 18 19 20 21 22 23 24 25 Atkinson-Baker, Inc. www.depo.com dates of employment, for example? A If they have a business need to do so, yes, they can access it. 0 So with legitimate reason, it could be accessed? A Yes, that's correct. Q Okay. That's 57. This will be number 58. Oh, no. This was previously marked as Exhibit 19. So we will use the same Exhibit. (Exhibit 19 marked) BY MR. JACKSON: Q So Exhibit 19, it was previously marked as Exhibit 19 in a previous deposition, is an e-mail trail from Leah Lewis to Mildred LeVey and Sheryl A. Sack regarding Edward Sermino. It's stamped confidential. And this single-page exhibit is Bates stamped SCPMG001855. All right. You are listed as a recipient, although I am sure you received lots of e-mails during your employment, but take a look at it and let me know if this looks familiar to you at all. A Yes, it does. Q Okay. I think basically, this seems to indicate that a termination decision -- Is it the case, Mildred Ruth Levey-Garcia January 09, 2020 70 © Ud 6 U o W N Es = © 11 12 33 14 15 16 17 18 19 20 21 22 23 24 25 Atkinson-Baker, Inc. www.depo.com | didn't quarrel if you recall, that the supervisor of Mr. Sermino decided she wanted to terminate his employment? A Yes, she did. Q She communicated that to the HR department; correct? A Correct. _ HR agreed and n the investigation ith her decision to terminate? A We reviewed the case, and based on how egregious it was, we supported the termination. Q So there was no disagreement with that based on the information with the case? A No. Q Also -- It doesn't specifically say it here. While not specifically mentioned here, do you recall that this was a termination that went straight to the level 5 termination and bypassed prior steps? A From what I recall, yes, that's correct. Q Okay. And I noticed this was also sent to Sheryl Sack. So Sheryl Sack at the time was the chief administrative officer of the Baldwin Park Medical Center; correct? A Correct. Q So was it -- do you have a recollection of Sheryl Sack being copied on termination decisions of Mildred Ruth Levey-Garcia January 09, 2020 71 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Atkinson-Baker, Inc. www.depo.com REPORTER'S CERTIFICATE I, Karine Sepedjian, CSR No. 12515, Certified Shorthand Reporter, certify: That the foregoing proceedings were taken before me at the time and place therein set forth, at which time the witness was put -under oath by me; That the testimony of the witness, the questions propounded, and all objections and statements made at the time of the examination were recorded stenographically by me and were thereafter transcribed; That the foregoing is a true and correct transcript of my shorthand notes so taken. I further certify that I am not a relative or employee of any attorney of the parties, nor financially interested in the action. I declare under penalty of perjury under the laws of California that the foregoing is true and correct. Dated this 16th day of January, 2020. i» Karine Sepedjian, CSR No. 12515 Mildred Ruth Levey-Garcia January 09, 2020 105 EXHIBIT B L e s , 10 11 12 13 14 15 16 17 18 19 20 21 N N No D W nN nN Ln Atkinson-Baker, Inc. www.depo.com Ww N e SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES EDUARDO SERMINO, an individual, 0 R | G | NAL ) ) Plaintiff, ) ) Case No.: VS, ) BC695609 ) THE PERMANENTE MEDICAL GROUP, INC., ) a California corporation; et al., ) ) Defendants. ) ) DEPOSITION OF SHERYL SACK GLENDALE, CALIFORNIA DECEMBER 18, 2019 ATKINSON-BAKER, INC. (800) 288-3376 www. depo. com REPORTED BY: STEPHANIE FERRELL, CSR NO. 9408 FILE NO. : ADOCT17 Sheryl Sack December 18, 2019 %, Hogg! a ow N o e RL I o n Wn 10 11 12 13 14 1h 16 17 18 19 20 21 22 23 24 25 Atkinson-Baker, Inc. www.depo.com A. Yes. Q. You were not the author of the emails here; correct? A. No. Q. All right. So you have no reason to dispute that you have received these emails when they were sent, correct? A. No. Q. Do you have any reason to believe that you contested or argued with this decision in any way? A. No. Q. All right. So you were fine with and okay with the termination moving forward based upon what you learned about what had happened? MS. STENVICK: Assumes facts not in évidence, calls for speculation, vague and ambiguous. You can answer. THE WITNESS: It's based on Legal's recommendation. MR. JACKSON: Q. All right. And you did not -- So in other words, you did not quarrel with the determination to terminate this particular employee? A. No. Q. Was your approval necessary before the termination could take place or could be actually 104 Sheryl Sack December 18, 2019 oy O r 10 | 11 12 14 15 le6 17 18 19 20 21 22 23 24 25 Atkinson-Baker, Inc, www.depo.com Ww nN effected? M$. STENVICK: Argumentative, assumes facts not in evidence. THE WITNESS: No. MR. JACKSON: Q. But I think earlier you typically prefer to at least he -- A. A heads-up. Q. == given a heads-up? A. Correct. 0. And your preference would be at least you're knowledgeable and you've not gquarreled with Legal, but you still want to be alerted to what was going on? A. Correct. Q. Okay. So that's 19. We'll mark this as No. 20. Okay. Exhibit 20 is -- is it just one -~ Exhibit 20 is a -- I think it's just one email. I'm not quite following because it looks like it came from -- okay. It came from Leah Lewis to a variety of people. You were copied. It's two pages long. It's marked "Confidential”™ and this email is Bates stamped SCPMG001147 to 1148 and I'll ask you to look through it and let me know if it looks familiar to you at all. (Exhibit 20 marked for identification.) MS. STENVICK: Counsel, do you have another second Sheryl Sack December 18, 2019 { %, L n H y is w No ft o y Un 11 12 1.3 14 15 16 17 18 19 20 21 22 23 24 25 Atkinson-Baker, Inc. www.depo.com REPORTER'S CERTIFICATE I, STEPHANIE FERRELL, CSR No. 9408, Certified Shorthand Reporter, certify: That the foregoing proceedings were taken before me at the time and place therein set forth, at which time the witness was put under oath by me; That the testimony of the witness, the questions propounded, and all objections and statements made at the time of the examination were recorded stenographically by me and were thereafter transcribed; That the foregoing is a true and correct transcript of my shorthand notes so taken. I further certify that I am not a relative or employee of any attorney of the parties, nor financially interested in the action. I declare under penalty of perjury under the laws of California that the foregoing is true and correct. Dated this 3rd day of January 2020. NAN L(L Tne FrEeAAl IE FERRELL, CSR No. 9408 Sheryl Sack December 18, 2019 115 EXHIBIT C j t , E y 10 11 12 13 14 15 16 17 18 L9 20 21 22 23 24 25 Atkinson-Baker, Inc. www.depo.com THE PERMANENTE MEDICAL SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT EDUARDO SERMINO, an individual, Case No. BC695609 ORIGINAL Plaintiff, ves. GROUP, INC., a California corporation, SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP dba KAISER PERMANENTE, a California business entity form unknown, and DOES 1 through 100, inclusive, Defendants. Wo t N t M t a Na a t et Ve nt Na e t M i a a ao N e Ce t a a ar t er DEPOSITION OF PHYLLIS M. ANDERSON GLENDALE, CALIFORNIA FRIDAY, JANUARY 24, 2020 ATKINSON-BAKER, INC, (800) 288-3376 www . depo. com REPORTED BY: FRANCES SANDOVAL, C8R NO. 7539 FILE NO: ADO8DS59 Phyllis M. Anderson January 24, 2020 E e E i P a © J 0 U n i W N 10 11 12 13 14 15 16 17 18 18 20 21 23 23 24 25 Atkinson-Baker, Inc, www.depo.com compensation if they stayed within or below their budgets? A It's an expectation that they stay within or below the budget because as an organization, her mission is to give our members money where -- to manage our members money because the membership pays for the organization. So that's their philosophy as an organization, but also help maintenance organization. And we also have a commitment to the champion for cost of healthcare in the United States. So we have an expectation of all of the leadership and frontline staff. So we're constantly looking at ways to continue to provide the highest quality of care possible and the most affordable way possible, so we're always challenging our managers to look at different ways to do things. Q Were they rewarded in any way for staying within or falling below their budget limit? A A line of sight goal. We have line of sight goals every year. So one of those goals would be for your performarice as a leader, do you -- you know, as the quality metrics, do you meet those, do you need -- and budget is one of them. And then the rest compensation at the end of Phyllis M. Anderson January 24, 2020 34 11 12 13 14 15 16 £7 18 12 20 21 22 a 24 Atkinson-Baker, Inc. www.depo.com W J O y U a W N es the year, F, you meet all those goals. I mean, that's like a bonus program for all of the organization. And, you know, the area as a whole has to meet all of the targets before the gate is open. ‘And then potentially they could get, you know, a monetary reward, like a bonus. Q So a budget would be part of it, but not the entire -- A No, no. I mean, you potentially could not budget and get a bonus too. Q Okay. You said the expectation was that they would stay within the budget? A Yes. Q So to the extent, just talking generally now, that directors did not meet or did not fall within their budget, kind of exceeded the budget, would that be something you would discuss to try to figure out for the future? A Yee. Q Okay. That would be important? A Very important. 0 And I think I understand. You, a couple of times now, used the phrase "members." Do you by that mean the patients who are members of the health plan? A Yes. Phyllis M. Anderson January 24, 2020 35 D O R R N N N R R E R t ps p p Uu B®» WwW N P Oo Vw L N U T A W N H O B ® J U T D W N Atkinson-Baker, Inc. www. depo.com A He was one of the social workers. Q Okay. Had you met him at some point? A I met him a couple of times. I think he worked in the E.R. I met him in the hallway. You know, I would go and huddle now and again in the department, so I met all the staff. Q All right. So you met all staff including Mr. Sermino? A Every single last staff member, I don't know, but I met a lot of them because I was in the huddles and things. Q All right. Had you personally had any occasion to interact with him while he was working, though, in terms of seeing patients? A If I was rounding in the E.R., I would have interacted and said, how are things going? Q Would you have been present at any time while he was providing social services to a patient? A No. Q All right. Do you have a recollection at some point Ms. Gutierrez deciding to do an investigation into Mr. Sermino? A I recall her telling me about the issue, and | I think it happened around the time. 86 around the time it happened, I was in and out because my mother Phyllis M. Anderson January 24, 2020 38 E E N E E E = B o d W N H o om d d W N Atkinson-Baker, Inc. www.depo.com 0 WwW B® 9 v o W N was dying, so I recall a conversation. Q Do you recall if that conversation, when you firgt learned about it, was it while the investigation was still going on? Was it before it started? Do you know? A It would be before it started. Q Was she just -- if you recall, was she just kind of telling you what she intended to do? A She wouldn't intend to do in terms of =- I investigation of Mr. Sermino. A Yes. Q Did she seek any sort of guidance or input from you about that? A No, no. Q When you were told about it, do you know if it was face to face or e-mail or phone? A It would not be e-mail. It would be either phone or face to face, I can't remember which one. Q Why are you certain it was not an e-mail? A Because we wouldn't e-mail something like that. The expectation would be you pick up the phone. Q Would that be the preferred practice while you were in that position? Phyllis M. Anderson January 24, 2020 39 ® J 6 U d Ww N p 10 11 12 13 14 15 16 1 18 19 20 21 2g 23 24 25 Atkinson-Baker, Inc. www.depo.com get involved directly in that? my level would get involved in any investigation. It's training about the investigations? A She had been an assistant manager -- an assistant director for a long time -- you know, a few years before she came to our area. She had worked -- she was competent in doing it. She had worked in San Bernardino County where I'm sure she got plenty of experience conducting investigations for one reason or another. We work in a union environment, you know, so everything -- any concern needs to be investigated and that's part of the training for the management partnership. Q Okay. So you entrusted her to handle that part fine? A Yes. A director level, yes. Q Would it have been normal that you would not , ‘that would be normal. left at that level because I may be called in later on if I was still there. If I would still be working there, I may have been called in a leader level depending on the results of the investigation. So normally in any TD underneath me would normally steer -- that would be the norm, to steer. Let the directors and, you know, the Phyllis M. Anderson January 24, 2020 58 N O N N N R RE BE E E E e pl pm pl Ul ® Ww N H Oo Ww Nd n d W O R E Oo W o m d e g W N pe Atkinson-Baker, Inc. www.depo.com people at that level do the investigation and then go from there later. Q You just said that you might be called in. Under what circumstances might you be called in after an investigation ig done? A Just as probably, you know, the people on here were called in later to talk about what the results of the investigation were. Q Have you had that happen before, that you've been called in to discuss results of an investigation? A Multiple times throughout my career. Q All right. Now, you left before this investigation was concluded, right? A Yes. Q After you left Baldwin Park, were you kept informed in any way whatsoever about this? A No. Q Okay. So you didn't hear any more about the Sermino investigation? A No, nothing. Q Do you have knowledge as to whether the practice would have been to have some sort of file or folder or anything that kind of would have compiled any notes related to the investigation? A Probably. Phyllis M. Anderson January 24, 2020 59 i e , a s 5 wo 9 6 UT od Ww N R [= ] Oo Ww 11 12 13 14 1.5 16 17 18 19 20 21 22 22 24 25 Atkinson-Baker, Inc. www,depo.com duly sworn and that the transcript is a true record of REPORTER'S CERTIFICATION I, FRANCES SANDOVAL, CSR No. 7539, in and for the State of California, do hereby certify: That prior to being examined, the witness named in the foregoing deposition was by me the testimony given; That said deposition was taken before me at the time and place therein set forth and was taken down by me stenographically and thereafter transcribed via computer-aided transcription under my direction; I further certify that I am neither counsel for, nor related to, any party to said action, nor interested in the outcome thereof. IN WITNESS WHEREOF, I have hereunto subscribed my name this 5th day of FEBRUARY 2020. FRANCES SANDOVAL, CSR No. 7539 Phyllis M. Anderson January 24, 2020 71 EXHIBIT D 10 11 12 13 14 15 16 1.7 18 1s 20 21 22 23 24 25 Atkinson-Baker, Inc. www.depo.com MEDICAL GROUP dba KAISER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT EDUARDO SERMINO, an individual, Case No. Plaintiff, BC695609 ve. Volume II THE PERMANENTE MEDICAL GROUP, INC., a California corporation, SOUTHERN CALIFORNIA PERMANENTE PERMANENTE, a California business entity form unknown, and DOES 1 through 100, inclusive, Defendants. N t N a t N L N e t M t N s M d e f Ne N a d M e S e S r Na r S e S e N r Se S e r S a DEPOSITION OF LINDA GUTIERREZ GLENDALE, CALIFORNIA WEDNESDAY, JANUARY 22, 2020 ATKINSON-BAKER, INC. (800) 288-3376 www. depo. com REPORTED BY: FRANCES SANDOVAL, CSR NO. 7539 FILE NO: AEOO0A90 Linda Gutierrez - Volume ll January 22, 2020 { w o e d a n o d o w NN N O N OR N N BH R P R R ps p p pr pa Ur o d Ww nN F O WwW I Y B d W N E Q Atkinson-Baker, Inc. www.depo.com documents during the course of your interview? A I don't recall. MS. STENVICK: You're looking at Exhibit 92; is that correct? MR. JACKSON: I'm locking at 90. That's where she was reading from. THE WITNESS: I may have had the policies there, handing it to him after the fact. Q BY MR. JACKSON: You may have, you're not gure? A I'm not sure. Q Was Mr. Sermino asked to bring anything with him for either of the interviews you had with him? Other than a representative, was he asked to bring anything with him? A I don't recall. MR. JACKSON: Let's take a ten-minute break here. (A recess was held from 3:01 to 3:09.) MR, JACKSON: All right. 0 As I recall, I know you have responsibility for budget for your department, correct? A IT oversee it. Q You oversee that. Who provides you the Linda Gutierrez - Volume [I January 22, 2020 157 Finrouiis N N N N N N RE E P B R Ur d w N H O v N e l d W N R Q Atkinson-Baker, Inc, www.depo.com OO © NI WW E o s Ww budget amount that you have to work with each year? MS. STENVICK: Assumes facts not in evidence, lacks foundation. To the extent you understand, you can answer THE WITNESS: The head of finance, Q BY MR. JACKSON: Who's that? A Grace Noble. Q So are you given a certain dollar amount that you have to work with each year or is it based on some other calculus? A It's fixed. Q A fixed dollar amount? MS. STENVICK: Argumentative, assumes facts not in evidence, lacks foundation. I don't want to interject. I see where you're going. Would it be better to ask what is she given? MR. JACKSON: Well, that's not a concern. Q I mean, I'm just asking, do you have a fixed dollar amount every year? Is that it? MS. STENVICK: I'm not saying the amount, bu I think that the way the question is phrased isn't going to get an answer. So I'm just trying to help you, but... Q BY MR. JACKSON: How is this provided to you Is there a certain fixed dollar amount for all of your t ? Linda Gutierrez - Volume 1 January 22, 2020 158 W o w a U d W N N O O N N N N R R R E ps p b pe ul A Ww N R E Oo Ww o m ad l d s W N e o Atkinson-Baker, inc. www.depo.com REPORTER'S CERTIFICATION I, FRANCES SANDOVAL, CSR No. 7539, in and for the State of California, do hereby certify: That prior to being examined, the witness named in the foregoing deposition was by me duly affirmed and that the transcript is a true record of the testimony given; | That said deposition was taken before me at the time and place therein set forth and was taken down by me stenographically and thereafter transcribed via computer-aided transcription under my direction; I further certify that I am neither counsel for, nor related to, any party to said action, nor interested in the outcome thereof. IN WITNESS WHEREQF, I have hereunto subscribed my name this 28th day of JANUARY 2020. FRANCES SANDOVAL, CSR No. 7539 Linda Gutierrez - Volume i January 22, 2020 225 OO 0 3 O N Un A W O N = N N ND ND O N N N N ND O N = o e e m e m e m e m e d e d p m p e 00 NN O N Wn pA W N = O OV N N N B N W = O PROOF OF SERVICE I am employed by Cole Pedroza LLP, in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 2295 Huntington Drive, San Marino, California 91108. On the date stated below, I served in the manner indicated below, the foregoing document described as: DEFENDANT SCPMG’S SECOND RESPONSIVE SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES on the parties indicated below by placing a true copy thereof, enclosed in a sealed envelope addressed as follows: Esperanza Cervantes Anderson Attorneys for Plaintiff LAW OFFICES OF ESPERANZA EDUARDO SERMINO CERVANTES ANDERSON 1443 E. Washington Boulevard, No. 191 Pasadena, CA 91104 Tel: 626-219-6773 Fax: 626-389-8911 Email: esperanza@andersonlitigation.com BY ELECTRONIC SERVICE -I electronically served the document to the electronic email addresses maintained by the person on whom it was served at the email address as last given by that person on any document which he or she has filed in the cause and served on the party making the service, which email address is identified in the attached list. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 11th day of February 11, 2020. - ebra Condragh 11 SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S SECOND SUPPLEMENTAL BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION