Judge: Mark A. Young, Case: 23SMCV00503, Date: 2024-02-14 Tentative Ruling
Case Number: 23SMCV00503 Hearing Date: February 14, 2024 Dept: M
CASE NAME: Doe v. the
Regents of the University of California, et al.
CASE NO.: 23SMCV00503
MOTION: Demurrer
and Motion to Strike the complaint
HEARING DATE: 2/14/2024
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
Any party, within the time allowed
to respond to a pleading may serve and file a notice of motion to strike the
whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a
pleading which is not essential to the claim is surplusage; probative facts are
surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
Analysis
Defendants Deborah E. Lynn, M.D. and the Regents of the University of
California (“Regents”) each demur to the second through fifth causes of action.
Regents also move to strike the request for punitive damages.
Intentional
Infliction of Emotional Distress
Defendants assert that the complaint does not allege sufficient facts
showing that Defendants’ conduct was so extreme as to exceed all bounds of that
usually tolerated in a civilized community. The elements of an intentional
infliction of emotional distress (IIED) cause of action are: (1) extreme and
outrageous conduct by the defendant; (2) intention to cause or reckless
disregard of the probability of causing emotional distress; (3) severe
emotional suffering; and (4) actual and proximate causation of the emotional
distress. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th
768, 780.) Liability for intentional infliction of emotional distress does not
extend to mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) To satisfy the element of extreme and
outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all
bounds of that usually tolerated in a civilized society.’” (Id. at 780.)
“Behavior may be considered outrageous if a defendant (1) abuses a relation or
position which gives him power to damage the plaintiff’s interest; (2) knows
the plaintiff is susceptible to injuries through mental distress; or (3) acts
intentionally or unreasonably with the recognition that the acts are likely to
result in illness through mental distress.” (McDaniel v. Gile (1991) 230
Cal.App.3d 363, 372.)
Generally, the question of whether the conduct is in fact outrageous is a
question of fact to be determined beyond the pleading stage. (So v. Shin
(2013) 212 Cal.App.4th 652; Spinks v. Equity Residential Briarwood
Apartments (2009) 171 Cal.App.4th 1004.) “While those cases say that it is ‘usually’ a question of fact, several
cases have dismissed intentional infliction of emotional distress claims on
demurrer, concluding that the facts alleged did not amount to outrageous
conduct as a matter of law.” (Barker v. Fox & Associates (2015) 240
Cal.App.4th 333, 355-356; see Cochran v. Cochran (1998) 65 Cal.App.4th
488, 494 [while there is no bright line rule as to what constitutes outrageous
conduct, courts may determine whether conduct was sufficiently outrageous as a
matter of law at the demurrer stage].) When reasonable persons may differ, it
is for the jury to determine whether the conduct has been sufficiently extreme
and outrageous to result in liability.¿(Alcorn v. Anbro Engineering, Inc.
(1970) 2 Cal.3d 493, 499.)
The FAC provides a history of Plaintiff’s troubled mental health, as well
as her interactions with her therapist, Dr. Lynn. (FAC ¶¶13-51.) Due to
her self-destructive behavior, Plaintiff was eventually hospitalized at a UCLA
operated hospital multiple times before turning 18. (¶ 16.) Throughout Plaintiff’s
hospitalizations, Plaintiff quickly became attached to Dr. Lynn, and Dr. Lynn
agreed to take Plaintiff on as a patient five days per week. (¶ 18.) Plaintiff
underwent a total of 22 years of therapy with Dr. Lynn. (¶¶ 19-20.)
As alleged in the complaint, Dr.
Lynn acted inappropriately over the years and not in Plaintiff’s best interest.
For instance, Dr. Lynn presented Plaintiff’s mother in a bad light, and as a
result, Plaintiff’s relationship with her mother deteriorated. (¶ 21.) Nine
months into treatment, Dr. Lynn announced that she was going into private
practice and would not be in-network with Plaintiff’s insurance, which would
cost Plaintiff thousands of dollars in out-of-pocket expenses. (¶ 22.) Dr. Lynn
moved into private practice even though she assured Plaintiff that she would be
at UCLA for the foreseeable future. (Id.) This change caused Plaintiff
financial hardship. For instance, in 2008, Plaintiff could no longer afford to
pay for therapy on her own, even at a reduced rate, so plaintiff felt she had
no other choice but to prostitute herself. (¶ 23.) Dr. Lynn would occasionally overcharge
for her services, including for sessions that did not occur. (¶ 36.)
Further, Dr. Lynn inappropriately
blurred their professional boundaries by engaging in daily and frequent
communication, which increased Plaintiff’s dependency on Dr. Lynn. (¶ 24.) Plaintiff
attempted to terminate the relationship over the years at several points, but
Dr. Lynn would not facilitate a proper termination. (¶ 27.) Plaintiff also
provides examples of Dr. Lynn’s unprofessional conduct which went beyond a
typical patient-psychotherapist relationship. (¶¶ 28-34, 39-51.) Dr. Lynn would
also overcharge co-pays. (¶¶36, 50.) Ultimately, Dr. Lynn failed to engage in
productive therapy sessions with Plaintiff. (¶¶ 35, 37-38.)
As to the IIED claim, Plaintiff
alleges that Defendants knew that Plaintiff was unusually susceptible to
injury, and that any misconduct would be highly likely to aggravate Plaintiff’s
pre-existing mental and emotional conditions. (FAC ¶59.) Further, in this case, there existed a strong
transference between Dr. Lynn and Plaintiff. (¶ 60.)
The allegations provide some
support for outrageousness, as Defendants allegedly abused a relationship and
position of power over Plaintiff and knew that Plaintiff was susceptible to
emotional distress. That said, the FAC still does not meet the specific
pleading standard required for IIED. Plaintiff
expressly cites the following specific conduct as supporting her allegations of
“outrageous” conduct by Dr. Lynn:
a. manipulating the
transference process to take advantage or otherwise abuse Plaintiff;
b. learning of
Plaintiff’s family history and mimicked it to create transference issues and to
harm Plaintiff;
c. Manipulating
Plaintiff into continuing the therapeutic relationship after she tried multiple
times to end it;
d. Insisting that
Plaintiff have clinical visits five to days each week with frequent phone contact
in between sessions, thereby cultivating and fostering Plaintiff’s dependence
on Defendant LYNN;
e. Destroying
Plaintiff’s bond with her mother by consistently painting Plaintiff’s mother in
a bad light, thereby strengthening Plaintiff’s bond with Defendant LYNN;
f. Announcing that
she was going into private practice and would no longer be in network for
Plaintiff’s family insurance just nine months after insisting that Plaintiff
forego a residential treatment program and assuring Plaintiff and her family
that Defendant LYNN would be at UCLA for the foreseeable future;
g. Knowing that
Plaintiff had to prostitute herself to pay for Defendant LYNN’s therapy sessions,
yet doing absolutely nothing to discourage or stop it;
h. Failing to frame
Plaintiff’s sexual abuse at the hands of her nanny, Ana, as sexual abuse and
leaving Plaintiff more confused and full of self-blame;
i. Using Plaintiff
as a case study patient without obtaining her and/or her parents’ full, informed
consent;
j. Frequently
disclosing personal information to Defendant and shifting the focus of the therapeutic
relationship to her…
k. Being frequently
late or appointments, knowing that it caused Plaintiff a significant amount of
stress;
l. Imposing her own
belief systems and preferences on Plaintiff, including but not limited
to religion;…
o. Engaging in
extended therapy against Plaintiff’s stated desires and best interest;…
s. Focusing on her
own feelings rather than addressing Plaintiff’s feelings when Defendant LYNN
created a distressing situation for Plaintiff;…
u. Minimizing
Plaintiff’s concerns about distractions in Defendant LYNN’s home during
virtual sessions
held in the midst of the COVID-19 pandemic, despite Plaintiff stating
that she didn’t feel
“safe and able to talk about [things] with distractions like that”…;
v. Enabling
Plaintiff’s addictions and prescribing her drugs for uses other than their
intended use,
including but not limited to prescribing cough syrup for sleep and
prescribing Ketamine
for Plaintiff based on Plaintiff’s own representations and research.”
(FAC ¶ 61.)
After examining these acts, even in context with the existence of a
“transference” between Dr. Lynn and Plaintiff, the FAC still lacks sufficient
factual allegations supporting “outrageous” conduct.
The FAC relies, in part, on what it describes as the “transference
phenomenon.” Confusingly, the FAC explains that the transference
phenomenon is actually a necessary step to psychotherapy. To cure a patient suffering from
mental/emotional conditions, a psychotherapist needs to establish a
“transference phenomenon” where the therapist encourages patient to trust the
therapist, and the patient “transfers” feelings and perceptions which she had
for significant people (i.e., mother and father) onto the psychotherapist. (¶
60.) Thus, the Court cannot hold that the mere establishment of a transference
phenomenon would exceed the boundaries of decency. Plaintiff claims that
Defendants exploited this phenomenon but does not provide specific facts
showing how Defendants exploited this phenomenon. For instance, Plaintiff contends that
Defendant Lynn “manipulated” Plaintiff through the transference process but
fails to describe the manipulation. Plaintiff vaguely alleges that Dr. Lynn “mimicked”
Plaintiff’s family history and this somehow harmed Plaintiff. Similarly,
Plaintiff alleges that Defendant “destroyed” Plaintiff’s relationship with her
mother, but does not describe this process beyond the most general terms that
Dr. Lynn “painted” her mother in a bad light. However, mere “painting someone
in a bad light” has not been held to be outrageous conduct. As such, none
of the acts detailed above could come close being “so extreme as to exceed all
bounds of that usually tolerated in a civilized society.” More facts are needed
regarding these circumstances to conclude that Dr. Lynn engaged in outrageous
conduct.
Likewise, the FAC’s other cited acts do not pass muster. Plaintiff cites
times she told Dr. Lynn certain things, though it is unclear how Plaintiff’s
messages would constitute outrageous conduct by Dr. Lynn. (See e.g., FAC ¶61m-t.)
Plaintiff also cites responses by Dr.
Lynn to Plaintiff’s threats of suicide and self-harm, but the responses generally
show Dr. Lynn was concerned about the threats and wanted to talk more about
them in their next session. The Court cannot conclude that such responses would
be outrageous conduct without additional facts showing how such comments could
constitute extreme abuse. Simply put, Defendant’s moving to private
practice from UCLA, charging (or overcharging) co-payments, knowing that
Plaintiff was prostituting herself, failing to prevent Plaintiff from
prostituting herself, failing to perform appropriate therapy generally, using
Plaintiff as a case study without consent, being late to appointments, failing
to discontinue therapy, imposing her own belief system on Plaintiff, having
disruptive virtual therapy sessions, and proscribing Plaintiff with medications
at Plaintiff’s insistence could not be considered outrageous
conduct under the pled facts.
As to the Regents, the FAC generally alleges that Dr. Lynn was an
employee of Regents, and those with supervisory authority ratified her conduct.
(FAC ¶¶ 7, 8, 119(p), 119(u)).) Further,
Regents was negligent in their implementation of policies and procedures for
the hiring and supervision of their mental health practitioners, as well as
their supervision of their mental health practitioners. (See, e.g., FAC ¶¶
51(gg), 51(kk), 51(oo), 51(ss), and 51(ww).) Of course, this shows no
independent conduct by Regents, and thus the FAC fails to state a claim against
Regents for the same reasons as to Dr. Lynn. Moreover, the FAC does not explain the Regents’ involvement in this
action beyond Plaintiff’s introduction to Dr. Lynn at UCLA, which was operated
by the Regents. (FAC ¶16.) Plaintiff
describes only Dr. Lynn’s conduct during the two decades of her psychotherapist-patient
relationship with Plaintiff, while in “private practice” after she left
UCLA. Thus, the FAC contradicts the generic allegations of agency and
ratification. Plaintiff must provide specific facts showing how Dr. Lynn
continued to be an employee/agent of the Regents, or how Regents ratified such
conduct, despite the fact that Dr. Lynn allegedly separated from them more than
20 years ago.
Accordingly, the demurrers are SUSTAINED with leave to amend as to the
IIED claim.
Fiduciary Duty
Dr. Lynn demurs to the fiduciary duty cause of action on the grounds that
Plaintiff fails to allege a breach of fiduciary duty, and that the claim is
duplicative of the negligence cause of action. The Regents argue that the FAC
fails to establish any fiduciary duty between the Regents and Plaintiff.
The elements for a breach of fiduciary duty cause of action are “the
existence of a fiduciary relationship, its breach, and damage proximately
caused by that breach.” (Thomson v. Canyon (2011) 198 Cal.App.4th 594,
604.) “‘[B]efore a person can be charged
with a fiduciary obligation, he must either knowingly undertake to act on
behalf and for the benefit of another, or must enter into a relationship which
imposes that undertaking as a matter of law.’” (Hasso v. Hapke (2014)
227 Cal.App.4th 107, 140.) “A fiduciary duty under common law may arise ‘when
one person enters into a confidential relationship with another.’” (Id.)
Dr. Lynn asserts that Plaintiff has failed to plead breach of fiduciary
duty with the greater degree of specificity required. However, the FAC
establishes a clear fiduciary duty between Dr. Lynn and Plaintiff, a
psychotherapist-patient relationship. (FAC ¶¶ 72-73; see Hahn, supra,
147 Cal.App.4th at 748 [doctor-patient relationship is a fiduciary
relationship].) Dr. Lynn breached this duty by failing to protect Plaintiff and
causing harm to Plaintiff. For example, Dr. Lynn required Plaintiff to have
five days of clinical visits and phone calls between sessions, and continued
with this extensive therapy allegedly against Plaintiff’s best interests and
wishes. (FAC ¶¶ 27-34, 39.) Dr. Lynn would charge and collect inordinate
amounts of co-payments. (FAC ¶36.) Dr. Lynn would improperly prescribe
medications, such as cough syrup and other controlled substances, not for the
intended medical purpose and despite Plaintiff’s troubles with addiction. (FAC
¶¶43-47.) These examples provide sufficient grounds for a breach of fiduciary
duty for pleading purposes.
Plaintiff’s cause of action for Breach of Fiduciary Duty is duplicative
of the cause of action for negligence. A demurrer may be sustained when a
cause of action is duplicative of another cause of action which “adds nothing
to the complaint by way of fact or theory of recovery.” (Rodrigues v.
Campbell Industries (1978) 87 Cal.App.3d 494, 501; see Palm Springs
Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268,
290.) Of course, the fact that one
cause of action is duplicative or mirrors another cause of action is not a
ground on which a demurrer must be sustained under section 430.10, in part
because “it is a waste of time and judicial resources to entertain a
motion challenging part of a pleading on the sole ground of repetitiveness.” (Blickman
Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858,
889-890, emphasis added.) The argument that two causes of action are
duplicative “is the sort of defect that, if it justifies any judicial
intervention at all, is ordinarily dealt with most economically at trial, or on
a dispositive motion such as summary judgment.” (Id.)
While there is substantial
overlap between the causes of action, the Court does not find this a sufficient
basis to sustain a demurrer. Simply put, the breach of fiduciary duty cause of action adds to the FAC by way of
theory of recovery. As such, the potentially
duplicative nature of the causes of action would not provide a sufficient basis
for demurrer.
As to Regents, Plaintiff has alleged the existence of a medical
provider-patient relationship discussed above between herself and Dr. Lynn.
Plaintiff relies on generic allegations that Dr. Lynn was always an employee or
agent of the Regents. However, as noted above, the more specific facts
contradict this general allegation. At some point in 2001, Dr. Lynn left
UCLA. Thus, more facts are required to
establish respondeat superior liability against the Regents for Dr. Lynn’s
conduct.
Accordingly, Dr. Lynn’s demurrer is OVERRULED, and the Regent’s demurrer
is SUSTAINED with leave to amend.
Fraud/Constructive
Fraud
Defendants argue that the fraud claims fail for lack of specificity. The elements of fraud are: “(a)
misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce
reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v.
Cobert (2006) 145 Cal.App.4th 170, 184.)
“[T]o establish fraud through nondisclosure or concealment of facts, it
is necessary to show the defendant ‘was under a legal duty to disclose them.’”
(OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157
Cal.App.4th 835, 845.) Nondisclosure or concealment may constitute actionable
fraud when: (1) there is a fiduciary relationship between the parties; (2) the
defendant had exclusive knowledge of material facts not known to the plaintiff;
(3) the defendant actively conceals a material fact from the plaintiff; and (4)
the defendant makes partial representations but also suppresses some material
facts. (Id.)
“Constructive fraud is a unique species of fraud applicable only to a
fiduciary or confidential relationship.” (Assilzadeh v. California Federal
Bank (2000) 82 Cal.App.4th 399, 415.) Constructive fraud “comprises any
act, omission or concealment involving a breach of legal or equitable duty,
trust or confidence which results in damage to another even though the conduct
is not otherwise fraudulent.” (Id.) “Constructive fraud ‘arises on a
breach of duty by one in a confidential or fiduciary relationship to another
which induces justifiable reliance by the latter to his prejudice.’” (Tyler
v. Children’s Home Society (1994) 29 Cal.App.4th 511, 548.) “Actual
reliance and causation of injury must be shown.” (Id.)
In California, all forms of fraud,
including negligent misrepresentation, must be pled with specificity. (Small
v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity
demands that a plaintiff plead facts which show how, when, where, to whom, and
by what means the representations were tendered.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469.)
The FAC relies on generic allegations of misrepresentations by Dr. Lynn.
Specifically, the FAC alleges that during the parties’ fiduciary relationship,
Dr. Lynn “represented to Plaintiff that she would do all things necessary to
diagnose, care for, and treat Plaintiff. This representation was false when it
was made… [Dr. Lynn] did not care about treating Plaintiff, but rather was only
interested in giving the appearance of treating her so that she could collect
fees for her services while doing nothing or next to it.” (FAC ¶ 82.) Dr. Lynn
asserted, with the intent to deceive Plaintiff, that Plaintiff needed therapy
sessions multiple times each week. (¶ 83.) Plaintiff relied on these false
representations and therefore attended/paid for those sessions. (Id.)
These allegations do not rise to the level of specificity required for
fraud. Plaintiff alleges active misrepresentations, but does not provide the
hallmarks of specificity, such as how, when, where and by what means the
representations were tendered. Further, Dr. Lynn allegedly intended that
Plaintiff rely on her professional education, training and experience, but
there is no allegation that Dr. Lynn misrepresented her professional education,
training or experience. (FAC ¶¶84-85, 96-97.) As such, the
fraud-based claims fail.
Accordingly, the demurrers are SUSTAINED with leave to amend.
Motion to Strike
The motion to strike is MOOT, as leave to amend was granted for several
causes of action which could support the claim of punitive damages. Otherwise,
the court would find that the FAC fails to allege sufficient facts showing
malicious, oppressive, fraudulent or despicable conduct for the same reasons
discussed in support of the demurrer. (Civ. Code § 3294(c).)
Plaintiff to file an amended complaint within 20 days.