Judge: Michael E. Whitaker, Case: 23SMCV06055, Date: 2024-06-05 Tentative Ruling

Case Number: 23SMCV06055    Hearing Date: June 5, 2024    Dept: 207

TENTATIVE RULING

MOTION

On December 28, 2023, Plaintiff Jane Doe (“Plaintiff”) brought suit against Defendants Michael D. Pariser and Michael Pariser Psychotherapy, PC (“Defendants”) alleging six causes of action for (1) negligence; (2) violation of Civil Code section 43.93; (3) sexual harassment; (4) infliction of emotional distress; (5) sexual battery; and (6) fraud.  Plaintiff alleges Defendants used Plaintiff’s psychotherapy sessions to psychologically groom and ultimately initiate a sexual relationship with Plaintiff. 

Defendants now demur to all six causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10, subd. (e) and are barred by the statute of limitations under Code of Civil Procedure section 430.5.  Plaintiff opposes the demurrer and Defendants reply. 

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    FAILURE TO STATE A CAUSE OF ACTION

Defendants contend that all causes of action arise from Plaintiff’s allegations that Defendants’ treatment of Plaintiff constituted professional negligence by a health care provider, and are therefore time barred by virtue of the one-year statute of limitations in the Medical Injury Compensation Reform Act (“MICRA”), Code of Civil Procedure section 340.5, because Plaintiff began treatment with Defendants in 2014, and Defendants terminated Plaintiff’s treatment on or about March 11, 2019, when Dr. Pariser began a sexual relationship with Plaintiff that continued until February of 2020.  (Complaint ¶¶ 6, 14-15.)  Yet Plaintiff did not file suit until December 28, 2023.

Section 340.5 provides:

In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

            “[W]hen a plaintiff asserts a claim against a health care provider on a legal theory other than professional negligence, courts must determine whether the claim is nonetheless based on the health care provider's professional negligence, which would require application of MICRA.”  (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347.)  “To make that determination, courts must examine not only the legal theory alleged, but also the nature of the health care provider's alleged conduct and the legislative history of the MICRA provision at issue.”  (Ibid.)  “When, as here, the question presented concerns which limitations period applies, courts also must focus on the nature or gravamen of the claim, not the label or form of action the plaintiff selects.”  (Ibid.) 

            In Unruh-Haxton v. Regents of the University of California (2008) 162 Cal.App.4th 343, 355-356, the appellate court held that the gravamen of plaintiff’s fraud, conversion, and emotional distress claims were based on allegations that plaintiff’s fertility doctors stole patient eggs and embryos and sold them for financial gain related to wrongful intentional misconduct, and were therefore not governed by MICRA’s statute of limitations.  “It would be inconsistent with the letter and spirit of the statutory scheme to hold allegations of intentional fraud, emotional distress, and stealing are really just another form of professional negligence.”  (Id. at p. 356.)

            In Cobbs v. Grant (1972) 8 Cal.3d 229, the Supreme Court differentiated between battery, where a doctor obtains a patient’s consent to perform one type of treatment but subsequently performs a substantially different treatment without consent, to which MICRA’s limitations do not apply, and “technical” battery, where a doctor fails to sufficiently disclose the risks inherent in the operation, which fundamentally centers around the doctor’s professional negligence, and to which MICRA’s limitations do apply.  (Id. at p. 239.) 

Similarly, in Perry v. Shaw (2001) 88 Cal.App.4th 658, the appellate court held that MICRA’s limitations did not apply where the alleged battery was based on a deliberate decision to ignore the scope of the plaintiff’s consent, not a negligent failure to disclose a potential complication.  (Id. at pp. 664, 668, fn. 4.)

Here, the gravamen of Plaintiff’s claim is not that Defendants provided Plaintiff negligent psychotherapy care, but rather that Dr. Pariser intentionally abused his position of power over her as her psychotherapist, took advantage of her vulnerability due to her young age and the fact she was his mental health patient, and used his superior knowledge of psychology to groom and manipulate Plaintiff into having a sexual relationship with him.  Put differently, the gravamen of Plaintiff’s claim isn’t that Dr. Pariser negligently allowed “transference” to occur, but rather that he intentionally exploited it to have a sexual relationship with Plaintiff.  As such, MICRA does not apply to Plaintiff’s second, third, fourth, fifth, or sixth causes of action.

With respect to Plaintiff’s first cause of action for medical negligence, however, Plaintiff alleges that by January 28, 2021, she “became aware through further therapy of how egregious Dr. Pariser’s actions were” and filed an administrative complaint with the California Board of Psychology.  (Complaint, ¶ 16.)  Because Plaintiff had discovered her injury by January 28, 2021, her first cause of action for professional negligence became time barred as of January 28, 2022.

            Finally, Defendants argue that Plaintiff’s second, third, fourth, fifth, and sixth causes of action should still be time barred, because Code of Civil Procedure, section 340.16, upon which Plaintiff relies to toll the statute of limitations, applies only to “sexual assault” which Defendants contend Plaintiff has not alleged.  Whether Defendants’ conduct rises to the level of “sexual assault” under Section 340.16 is a factual issue to be determined at later stages of the litigation.

2.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff requests an opportunity to amend to add additional facts and law “with regard to the issue of her lack of ability to legally consent to the sexual conduct at issue.”  (Opp. at p. 5.)  But additional facts regarding Plaintiff’s capacity to consent will not cure the statute of limitations problem barring Plaintiff’s first cause of action for professional negligence.  Therefore, the Court denies Plaintiff’s request for leave to amend.    

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Defendant’s Demurrer to the First Cause of Action without leave to amend, but overrules Defendant’s Demurrer to all other causes of action.   

Further, the Court orders Defendants to file and serve an Answer to the Complaint or before June 26, 2024. 

Defendant shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  June 5, 2024                                                           ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court