Judge: Salvatore Sirna, Case: 22PSCV02033, Date: 2023-02-09 Tentative Ruling
Case Number: 22PSCV02033 Hearing Date: February 9, 2023 Dept: G
Defendants Sarah Lee
Kendall, Karen H. Allen, Crossroads Family Therapy LLC, and Abundance Therapy
Center, Inc.’s Demurrer to Plaintiff’s Complaint
Respondent: Plaintiff Brent Allen Rupnow
TENTATIVE RULING
Defendants Sarah Lee Kendall, Karen H. Allen, Crossroads Family Therapy LLC, and Abundance Therapy Center, Inc.’s Demurrer to Plaintiff’s Complaint is SUSTAINED with twenty (20) days leave to amend.
BACKGROUND
This is an action for medical malpractice. On September 20, 2021, Plaintiff Brent Allen Rupnow’s twelve-year-old daughter began receiving professional therapy from Sarah Lee Kendall (Kendall), a licensed therapist who worked for Crossroads Family Therapy LLC (Crossroads). After May 13, 2022, Kendall left Crossroads and began working for Abundance Therapy Center, Inc. (Abundance) while still providing therapy to Plaintiff’s daughter. Plaintiff alleges medical malpractice on the grounds that the daughter’s therapy resulted in the daughter becoming alienated from Plaintiff.
On November 23, 2022, Plaintiff filed a complaint against Kendall, Karen H. Allen, Crossroads, Abundance, and Does 1-10 (collectively, Defendants), alleging a single cause of action for professional healthcare malpractice.
On January 6, 2023, Defendants filed the present demurrer. Prior to filing on January 5, Defendants’ counsel met and conferred telephonically with Plaintiff and was unable to reach a resolution. (Zopatti Decl., ¶ 4.)
A hearing on the demurrer is set for February 9, 2023. A case management conference and OSC Re: Failure to File Proof of Service are also set for April 26.
REQUEST FOR JUDICIAL NOTICE
Defendants’ request for judicial notice of a custody and visitation order involving Plaintiff’s daughter is GRANTED pursuant to Evidence Code section 452, subdivision (d).
ANALYSIS
Defendants demur to Plaintiff’s complaint on the grounds that (1) Plaintiff lacks standing, (2) Plaintiff cannot state a claim for medical malpractice, (3) Plaintiff cannot state a claim for negligent infliction of emotional distress (4) Plaintiff’s claim is barred by the litigation privilege, and (5) Plaintiff’s complaint is uncertain. For the following reasons, the court SUSTAINS Defendants’ demurrer.
Legal Standard
A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)¿
Standing
Defendants argue Plaintiff lacks standing to bring this action because Plaintiff is not a real party in interest. The court agrees in part.
Because “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute” (Code Civ. Proc., § 367), “[a] party who is not the real party in interest lacks standing to sue.” (Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920.) “A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law.” (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605.) by statute
In this case, Plaintiff alleges three injuries. First, Plaintiff alleges Defendants’ negligence caused Plaintiff and Plaintiff’s daughter to suffer great emotional pain and suffering, as well as damage to their psychological and emotional health. (Complaint, ¶ 6.) Second, Plaintiff alleges Defendants’ negligence caused Plaintiff to incur legal, evaluation, and reunification therapy expenses. (Complaint, ¶ 7.) Third, Plaintiff alleges Defendants’ negligence prevents Plaintiff from maintaining a relationship and contact with Plaintiff’s daughter. (Complaint, ¶ 8.)
Thus, to the extent Plaintiff seeks damages for the emotional pain and suffering of Plaintiff’s daughter, Plaintiff lacks standing because Plaintiff’s daughter is not a party to this action. However, Plaintiff may bring an action for the damages caused to Plaintiff directly.
Accordingly, the court considers whether Plaintiff, individually, can state a claim for negligence.
Negligence Claims
Defendants contend Plaintiff’s complaint fails to state a claim for professional malpractice or negligent infliction of emotional distress. The court agrees.
As an initial matter, the court notes Plaintiff’s complaint does not explicitly identify causes of action alleged and instead is titled “Complaint for Damages (Other Professional Healthcare Malpractice).” Based on the allegations alleged, it seems Plaintiff is alleging Defendants breached their duty of care by causing Plaintiff emotional pain and suffering and preventing Plaintiff from having a relationship with Plaintiff’s daughter.
To succeed on a cause of action for medical negligence, Plaintiff must establish “(1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 229-230, quoting 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 488 et seq., p. 2749.)
However, “when the negligence is alleged to have occurred during the medical treatment of the child, the defendant’s conduct is directed solely at the child, the intended third party beneficiary of the contract [Citation], and not at the parent who enters into the contract solely as a surrogate for the minor child who otherwise could disaffirm it [Citation].” (Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 168.) In such cases, the child’s practitioner does not owe a duty of care to the parent. (Ibid; Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 131-132.)
Here, because Plaintiff’s allegations are solely based on Defendants’ treatment of Plaintiff’s daughter, Plaintiff failed to establish the existence of a duty of care between Plaintiff and Defendants. While plaintiffs can “recover damages for serious emotional distress suffered as a result of an injury to a close family member,” they must be “present at the scene of the injury-producing event and . . . aware that the event was causing injury to the victim.” (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204.)
In this case, Plaintiff does not allege facts establishing Plaintiff was present at the daughter’s therapy sessions and aware that the sessions were allegedly causing injury to the daughter. Thus, Plaintiff cannot establish a duty owed by Defendants, and Plaintiff cannot state a cause of action for negligence.
Accordingly, Defendants’ demurrer is SUSTAINED with leave to amend.
CONCLUSION