Judge Salvatore Sirna, Case 22PSCV02033 2023-04-12 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV02033, Date: 2023-04-12 Tentative Ruling

Case Number: 22PSCV02033 Hearing Date: April 12, 2023 Dept: G

Defendants Sarah Lee Kendall, Karen H. Allen (erroneously named “Karen H. Allan”), Crossroads Family Therapy LLC, and Abundance Therapy Center’s Demurrer to Plaintiff’s First Amended Complaint

Respondent: Plaintiff Brent Allen Rupnow

Defendants Sarah Lee Kendall, Karen H. Allen (erroneously named “Karen H. Allan”), Crossroads Family Therapy LLC, and Abundance Therapy Center’s Motion to Strike Portions of Plaintiff’s First Amended Complaint

Respondent: NO OPPOSITION

TENTATIVE RULING

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 or Defendant), 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 February 9, 2023, the court sustained a demurrer to Plaintiff’s Complaint.

On February 27, 2023, Plaintiff filed a First Amended Complaint (FAC) against the same Defendants[1] and Christine Chae, alleging the following causes of action: (1) negligence, (2) negligence per se, (3) negligent hiring, supervision, and retention, and (4) intentional infliction of emotional distress.

On March 10, 2023, Defendants filed the present demurrer and motion to strike. Prior to filing on March 8, Defendants’ counsel met and conferred telephonically with Plaintiff and was unable to reach a resolution. (Zopatti Decl., ¶ 2.)

A hearing on the demurrer and motion to strike is set for April 12, 2023.

ANALYSIS

Although the original complaint, summons, and Defendants’ filings refer to a “Karen H Allen,” Plaintiff’s FAC now spells Defendant’s name as “Karen H Allan.” The court will continue to refer to use the name “Allen.”

Defendants demur to Plaintiff’s first cause of action (negligence), second cause of action (negligence per se), third cause of action (negligence hiring, supervision, and retention), and fourth cause of action (intentional infliction of emotional distress). For the following reasons, the court SUSTAINS Defendants’ demurrer to Plaintiff’s FAC in its entirety without leave to amend.

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.)

Negligence Claims (First, Second, and Third Causes of Action)

Defendants argue Plaintiff’s first, second, and third causes of action for negligence, negligence per se, and negligent hiring, supervision, and retention fail to plead sufficient facts to state a claim because (1) Plaintiff cannot seek damages for alienation of affection and (2) Plaintiff lacks standing to bring action on daughter’s behalf. The court agrees.

The basic elements of a negligence claim are (1) duty, (2) breach, (3) causation, and (4) damages. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.) The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

Alienation of Affection

Civil Code section 43.5 disallows a cause of action for “[a]lienation of affection.” In In re Marriage of Segel (1986) 179 Cal.App.3d 602 (Segel), the court declined to recognize a claim for intentional infliction of emotional distress caused by a parent’s interference with another parent’s visitation rights. (Id., at p. 608-609.) The court recognized “a public policy against awarding damages in loss of filial consortium situations except in the most narrow instances of providing a remedy for specific and measurable economic losses; but not in situations where the claim involves intangible injuries to a parent-child relationship.” (Id., at p. 608.) The court also noted that family court is the appropriate forum for such disputes. (Id., at p. 608-609.)

In Tarin v. Lind (2020) 47 Cal.App.5th 395 (Tarin), the court held a plaintiff could not state a cause of action for interference with parental consortium against a fellow sibling pursuant to Civil Code section 43.5. (Id., at p. 411.) “[T]he Legislature, by amending Civil Code section 49 and adding Civil Code section 43.5 in 1939, eliminated any cause of action a child may have against a person who abducts or entices his or her parent away from the child, at least when the damages claimed are a loss of affection.” (Id., at p. 408.) While Tarin dealt with the loss of a parent’s affection, the court sees no reason to refuse to apply the same reasoning to loss of a child’s affection.

In this case, the gravamen of Plaintiff’s FAC is that Defendants’ treatment of Plaintiff’s daughter destroyed the father-daughter relationship and caused Plaintiff emotional distress. (FAC, ¶ 1, 75, 77, 82-83, 94.) Because Plaintiff seeks damages for the loss of the daughter’s affection and the emotional distress caused by that loss, Plaintiff’s action is barred by Civil Code section 43.5. Furthermore, as the court noted in Segel, disputes over the care or custody of Plaintiff’s daughter are best handled in the proper family court forum, not in a separate civil proceeding for damages. (Segel, supra, 179 Cal.App.3d at p. 608-609.)

Standing

“[W]hen 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 (Schwarz).) 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.)

In Schwarz, the court dealt with a situation similar to the present case where a father sued the child’s psychotherapist for negligent infliction of emotional distress after the child’s psychotherapist convinced the mother to move the child away from the father. (Schwarz, supra, 226 Cal.App.3d, at p. 152.) In this case, Plaintiff alleges Plaintiff helped select daughter’s therapist and participated in ten of the daughter’s twenty-two therapy sessions. (FAC, ¶ 45-46, 48.) However, like in Schwarz, “the simple existence of a contract between a parent and a medical caregiver to provide medical treatment for a child is not in itself sufficient to impose on the caregiver a duty of care owed to the parent.” (Id., at p. 168.) Furthermore, even though the plaintiff in Schwarz also participated in therapy sessions with the child, the court noted that was insufficient to establish a duty between plaintiff and the therapist. (Id., at p. 162-163.) In fact, the court further noted as follows:

“Even in the absence of negligence, the treatment of the emotional problems of one family member well may have an adverse effect on the relationship of the patient with one or more other members of the family. Distancing the patient from some or all other family members may be the only available route to mental health. That a third party thus suffers an adverse consequence does not mean the defendant’s conduct is directed at the third party.” (Id., at p. 163.)

Thus, because Defendants’ treatment was directed at Plaintiff’s daughter and not Plaintiff, Defendants did not owe Plaintiff a duty of care and Plaintiff is not the real party in interest. Accordingly, because Plaintiff cannot establish the existence of a duty or viable cause of action for negligence, Defendants’ demurrer to Plaintiff’s first, second, and third causes of action is SUSTAINED.

Intentional Infliction of Emotional Distress (Fourth Cause of Action)

Defendant maintains Plaintiff’s fourth cause of action for intentional infliction of emotional distress (IIED) fails to plead sufficient facts to state a claim. The court agrees.

To establish a claim of IIED, one must show “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, quoting Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.) Extreme and outrageous conduct is defined as exceeding “all bounds of decency usually tolerated by a decent society” and intending to cause mental distress. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

In this case, as in Segel, Plaintiff’s IIED claim is essentially another attempt to receive damages for emotional distress caused by the alienation of affection. (Segel, supra, 179 Cal.App.3d, at p. 608-609.) Because the bar to actions for alienation of affection by Civil Code section 43.5 does not distinguish between intentional and negligence torts, Plaintiff’s IIED claim fails on the same grounds as Plaintiff’s negligence claims. Accordingly, Defendant’s demurrer to Plaintiff’s fourth cause of action is SUSTAINED.

Leave to Amend

“Where an ‘action is barred as a matter of law, the demurrer is properly sustained without leave to amend.’” (California Department of Tax and Fee Administration v. Superior Court (2020) 48 Cal.App.5th 922, 938, quoting Cal. Auto. Dismantlers Ass’n v. Interinsurance Exch. (1986) 180 Cal.App.3d 735, 742.)

In this case, the court previously sustained a demurrer to Plaintiff’s Complaint on the grounds that Plaintiff failed to establish Defendants owed Plaintiff a duty while treating Plaintiff’s daughter. As discussed above, Plaintiff’s FAC continues to fail to allege any facts that would establish Defendants owed Plaintiff a duty. Furthermore, Plaintiff’s entire action is based on alienation of affection, a legal theory that is barred as a matter of law. Accordingly, absent a showing by Plaintiff at the hearing that Plaintiff can allege additional facts to a state a cause of action, Defendants’ demurrer is SUSTAINED without leave to amend.

CONCLUSION

Based on the foregoing, Defendants’ demurrer to Plaintiff’s FAC is SUSTAINED in its entirety without leave to amend.

Based upon the ruling above, Defendants’ motion to strike portions of Plaintiff’s FAC is deemed MOOT.