Judge: Mark A. Young, Case: 23SMCV06000, Date: 2024-10-16 Tentative Ruling
Case Number: 23SMCV06000 Hearing Date: October 16, 2024 Dept: M
CASE NAME: Gordon v. Coleman, et al.
CASE NO.: 23SMCV06000
MOTION: Demurrer to the
Complaint
HEARING DATE: 10/16/2024
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.)
“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
Defendant Keith Randall
Coleman demurs to Plaintiff David Gordon’s complaint.
First Cause of Action for Sexual Assault
Defendant argues that
it cannot be disputed that the Complaint was filed after the expiration of the
statute of limitations in both Code of Civil Procedure (CCP) sections 340.5 and
340.16. “A
complaint showing on its face the cause of action is barred by the statute of
limitations is subject to general demurrer.” (Basin Construction Corp. v.
Department of Water & Power (1988) 199 Cal.App.3d 819, 823.) When a
complaint “merely shows that the action may have been barred,” however,
no demurrer will lie. (Los Angeles County v. Security First National Bank of
Los Angeles (1948) 84 Cal.App.2d 575, 580.) Therefore, unless a complaint
affirmatively discloses on its face that the statute of limitations has run, a
demurrer must be overruled. (Lockley v. Law Office of Cantrell, Green,
Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [“It must
appear clearly and affirmatively that, upon the face of the complaint, the
right of action is necessarily barred”].)
Defendant first raises CCP
section 340.5, which apples to claims against a “health care provider based
upon such person’s alleged professional negligence.” The statute defines a “health care provider”
as any individual “licensed or certified” under certain provisions of
California statutory law. The Complaint does not allege a claim for
professional negligence, or that defendant was duly licensed as a health care
provider. Instead, the Complaint disclaims that defendant was a professional health
care provider because he was unlicensed. (Compl., ¶ 2.) The claims
therefore do not arise from a “professional negligence” of a “health care
provider” defined by section 340.5, even if Defendant held himself out as a
therapist, phrased his conduct as “therapy,” or otherwise has an alleged
fiduciary relationship with Plaintiff. Section 340.5 simply does not apply to
any claim here. Moreover, the statute provides for a three-year period. As will
be discussed, the complaint does not allege facts which show that the complaint
was filed over three years from the last act of sexual assault. Thus, the
complaint is not barred by section 340.5.
CCP section 340.16
provides: “(a) In any civil action for recovery of
damages suffered as a result of sexual assault, where the assault occurred on
or after the plaintiff's 18th birthday, the time for commencement of the action
shall be the later of the following:
(1)
Within 10 years from the date of the last act, attempted act, or assault with
the intent to commit an act, of sexual assault against the plaintiff.
(2) Within three years from the date the
plaintiff discovers or reasonably should have discovered that an injury or
illness resulted from an act, attempted act, or assault with the intent to
commit an act, of sexual assault against the plaintiff.”
Defendant also raises
CCP section 335.1, which provides a two-year period to bring claims of assault,
battery, or negligence.
The Complaint does not
show that any period has expired. The Complaint provides detailed allegations into
the sexual abuse and assault but does not date any of the sexual abuse.
(Compl., ¶¶ 20-154.) As such, the complaint does not allege facts which would
show that all of the alleged injuries occurred outside of the 10-year, 3-year or
2-year period. At best, the complaint alleges that Plaintiff and Defendant met
in 2003. (Compl., ¶ 11.) Plaintiff ultimately became a patient of Defendant at
some point after their meeting, but the Complaint does not state when this relationship
started. (Compl., ¶ 13.) The Complaint notes that the first time that Defendant
assaulted Plaintiff was two years after their treatment began. (Compl., ¶ 93.) The
Complaint alleges that the most recent episode of sexual abuse perpetrated was
within the statutory period of section 340.16. (Compl. ¶¶ 9-10.) Moreover,
Defendant “treated’ and abused Plaintiff continuously for ten years, extending
through and into the statutory period. (Compl. ¶ 15.)
The above facts do not
disclose that the assaults only occurred more than 3 years before filing. Defendant
reasons that, because Plaintiff had been “frozen in fear” and told Defendant to
stop at some point during the sexual assault(s), Plaintiff had a suspicion of
wrongdoing more than three years from the 2023 filing. However, the facts do
not show when this suspicion of wrongdoing should have arisen. The Complaint
only establishes that at some point after 2003, Plaintiff agreed to be a client
of Defendant, and that two years later, Defendant began sexually assaulting
Plaintiff while he was intoxicated on MDMA, LSD and/or psilocybin. Liberally
construed, such allegations do not “affirmatively” establish the running of the
statute of limitations. (Lockley, supra,
91 Cal.App.4th at 881.)
Defendant also argues
that the complaint is incomprehensible and unintelligible, such that he cannot
reasonably respond. (CCP § 430.10(f).) Although not a model of pleading, the Complaint
is not so incomprehensible or unintelligible that Defendant cannot admit or
deny the allegations. Generally, the complaint alleges that Defendant sexually
assaulted Plaintiff for a number of years through drug-fueled pseudo-therapy
sessions. Defendant may admit or deny the particular factual allegations
supporting the three stated causes of action.
The demurrer for uncertainty therefore cannot be
sustained.
Accordingly, the
demurrer to the first cause of action is OVERRULED.
Fiduciary Duty
Defendant
argues that there are no facts which would support the existence of a fiduciary
relationship. The elements of a cause of action for
breach of fiduciary duty are the existence of a fiduciary relationship, its
breach, and damage proximately caused by that breach. (City of Atascadero v.
Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445,
483.) “Whether a ¿duciary duty exists is generally a question of law. Whether
the defendant breached that duty towards the plaintiff is a question of fact.”
(Marzec v. Public Employees’ Retirement System (2015) 236 Cal.App.4th
889, 915.) Facts giving rise to a confidential or fiduciary relationship must
be pled; “bare allegations” that defendants assumed a fiduciary relationship are
insufficient. (Zumbrun v. Univ. of So. Cal. (1972) 25 Cal.App.3d 1,
13.)
“‘[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.) A
fiduciary or confidential obligation or relationship can arise when confidence
is reposed in the integrity of another, and if the latter voluntarily accepts
or assumes to accept the confidence, he or she may not act so as to take
advantage of the other's interest without that person's knowledge or
consent. (Oates v. Lincoln (2001) 93 Cal.App.4th 25, 35.) “[E]xamples
of relationships that impose a ¿duciary obligation to act on behalf of and for
the bene¿t of another are ‘a joint venture, a partnership, or an agency.’ But,
‘[t]hose categories are merely illustrative of ¿duciary relationships in which
¿duciary duties are imposed by law.’ ” (Cleveland v. Johnson (2012) 209
Cal.App.4th 1315, 1338-1339 [internal citation omitted].)
“[B]ecause of ‘[t]he
vagueness of the common law definition of the confidential relation that gives
rise to a fiduciary duty, and the range of the relationships that can potentially
be characterized as fiduciary,’ the ‘essential elements’ have been distilled as
follows: [¶] (1) the vulnerability of one party to the other which (2) results
in the empowerment of the stronger party by the weaker which (3) empowerment
has been solicited or accepted by the stronger party and (4) prevents the
weaker party from effectively protecting itself. [Citation.] In short, vulnerability
‘is the necessary predicate of a confidential relation’, and ‘the law treats [it]
as “absolutely essential”…’ ” (Persson v. Smart Inventions, Inc., (2005)
125 Cal. App. 4th 1141, 1161.)
Defendant does not meet
his burden of persuasion to show that the above allegations cannot give rise to
a fiduciary duty as a matter of law. Defendant argues that Plaintiff has not
established any fiduciary relationship because Plaintiff has expressly pled
that Defendant was not a licensed therapist. Defendant argues that it is “unclear”
what basis exists to impose a fiduciary duty here. Indeed, Plaintiff
does not allege that he and Defendant had a traditional therapist-client
relationship, which Defendant admits would create a fiduciary duty. That said,
Plaintiff pleads facts which demonstrating that Plaintiff reposed confidence in
Defendant in a substantially identical manner as a psychotherapist, and that
Defendant solicited or accepted this position.
When the parties met in 2003, Defendant held
himself out as a psychedelic psychotherapist, though he did not hold any professional
license. (Compl. ¶¶ 2, 11.) Plaintiff agreed to Defendant’s request
that they enter a therapist-client relationship, where Plaintiff would be
Defendant’s “patient” and receive treatment from Defendant in the form of talk
therapy and psychedelic drugs. (¶¶ 15-37.) Defendant accepted this confidence
and underwent therapy sessions with Plaintiff. During therapy, Defendant created
a “transference” based relationship where Defendant would pose as Plaintiff’s
father figure in order to process Plaintiff’s childhood trauma. (Id.) Defendant
exploited Plaintiff’s relative position of vulnerability by pressuring
Plaintiff into a sexual relationship during their drug-fueled therapy sessions. (Id.) Accepting these facts as true, the Complaint alleges
the existence of a confidential relationship as a matter of law.
Defendant also argues
that the complaint fails to allege the element of damages. However, as a result
of Coleman’s breach of his alleged fiduciary duty, Plaintiff suffered damages.
(Compl., ¶ 191.) Defendant cites no authority which suggests more is required
at the pleading stage.
Accordingly, the
demurrer is OVERRULED.
Third Cause of Action for Conspiracy
Defendant argues that the complaint does
not state a claim based on conspiracy theory. “Conspiracy
is not a cause of action, but a legal doctrine that imposes liability on
persons who, although not actually committing a tort themselves, share with the
immediate tortfeasors a common plan or design in its perpetration . . ..
Standing alone, a conspiracy does no harm and engenders no tort liability. It
must be activated by the commission of an actual tort. A civil conspiracy,
however atrocious, does not per se give rise to a cause of action unless a
civil wrong has been committed resulting in damage.” (Applied Equipment
Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511, internal
citations and quotations marks omitted.)
“Although conspiracy to
commit a tort is not a separate cause of action from the tort itself, alleging
a conspiracy fastens liability on those who agree to the plan to commit the
wrong as well as those who actually carry it out.” (Stueve Bros. Farms, LLC
v. Berger Kahn (2013) 222 Cal.App.4th 303, 323.) “The elements of a civil
conspiracy are the formation and operation of the conspiracy and damage
resulting to plaintiff from an act done in furtherance of the common design.” (Id.)
The conspiracy cause of
action alleges that Plaintiff was harmed by the individual Defendants’ breaches
of fiduciary duty. (Compl., ¶ 193.) Specifically,
each conspired to breach their duties for the purpose of concealing Defendant
Coleman’s abuse and “silencing” Plaintiff. (Id.) As a result, Plaintiff was
harmed. (¶ 194.)
The entirety of the piecemeal allegations
against Defendants Vides, Heed and Gaspari are as follows. Plaintiff and
Coleman agreed to tell Heed and Gaspari about their sexual relationship,
because Heed and Gaspari were both licensed “Sexological
Bodyworkers” with training and expertise in sexual boundaries and ethics. (Compl.
¶¶ 58-64.) Heed advised Plaintiff that he needed to take responsibility for his
role in the relationship, and to continue to work with Coleman on healing the
relationship. (¶ 63.) Coleman identified a colleague, Vides, who could assist in
undoing the psychological damage Coleman caused. (¶¶ 66-69.) However, Coleman
never made that referral, though Vides allegedly supplied Coleman with
psychedelic mushrooms. (¶¶ 70, 88, 94, 95-96 109.) At some point, Heed had referred Coleman to an editor to
help publish his upcoming book about psychotherapy. (¶87.) Plaintiff
informed Heed about Coleman’s continued unwanted sexual conduct during their
last session. (¶ 92.) Heed told Plaintiff that it was his own fault for being
“too seductive.” (Id.) Plaintiff contacted Gaspari to have her intervene with Coleman.
(¶ 104.) Gaspari, however, blamed the issue on Plaintiff. (Id.) Initially,
Gaspari told Plaintiff to report Coleman to the police, but later came to Plaintiff’s
home with a bottle of vodka, encouraged him to drink it with her, and told
David that there was no chance that Coleman would ever be convicted of the
abuse he committed against Plaintiff. (¶ 105.) Gaspari and Heed both told
Plaintiff that Coleman was untouchable, would not be arrested, and that Plaintiff
would not be believed if he went to the police. (¶ 106.)
Plaintiff was allegedly harmed by Vides,
Heed and Gaspari’s alleged attempts to “cover up” the abuse or “silence”
Plaintiff. The above facts might suggest that Coleman worked with Vides, Heed
and Gaspari on some level. However, the complaint does not allege that Coleman
would be liable for any harm caused by Vides, Heed and Gaspari based on a
conspiracy theory. Simply put, the Complaint does not allege that the parties
made any agreement. The Complaint never alleges or describes the formation,
operation or common design of the conspiracy. The Complaint does not allege
that Coleman agreed to commit the wrong with Vides, Heed or Gaspari, such that
Coleman may be liable for any independent breaches of fiduciary duty by Vides,
Heed or Gaspari.
Accordingly, the demurrer is SUSTAINED
with leave to amend. Plaintiff to file
an amended complaint within 20 days.