Judge: Salvatore Sirna, Case: 22PSCV02033, Date: 2023-08-09 Tentative Ruling

Case Number: 22PSCV02033    Hearing Date: August 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 Second Amended 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 Second Amended Complaint is SUSTAINED without 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 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 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 April 19, 2023, the court sustained a demurrer to Plaintiff’s FAC with leave to amend as to the first, second, and third causes of action and without leave to amend as to the fourth cause of action.

On May 18, 2023, Plaintiff filed a Second Amended Complaint (SAC) against the same Defendants, alleging the following causes of action: (1) negligence, (2) negligence per se, and (3) negligent hiring, supervision, and retention.

On June 20, 2023, Defendants filed the present demurrer. Prior to filing on June 19, Defendants’ counsel attempted to meet and confer telephonically with Plaintiff but was unable to reach a resolution. (Zopatti Decl., ¶ 2-3.)

A hearing on the demurrer is set for August 9, 2023, along with a case management conference and numerous discovery motions.

REQUESTS FOR JUDICIAL NOTICE

Plaintiff’s request for judicial notice of a family court stipulation, civil jury instructions, and state authorities is GRANTED.

ANALYSIS

Defendants demur to Plaintiff’s first cause of action (­negligence), second cause of action (negligence per se), and third cause of action (­negligent hiring, supervision, and retention) as alleged in the Second Amended Complaint (SAC). For the following reasons, the court SUSTAINS Defendants’ demurrer in its entirety.

Legal Standard

Demurrer

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

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.)

Discussion

Defendants argue Plaintiff’s SAC continues to plead insufficient facts to state the alleged negligence claims as (1) Plaintiff cannot seek damages for alienation of affection and (2) Plaintiff lacks standing to bring an action on daughter’s behalf. Defendants also contend Plaintiff’s SAC violates the sham pleading doctrine.

To proceed with negligence claims against Defendants, Plaintiff must establish that Defendants owed Plaintiff a duty. While the existence of a duty between the therapist and patient is generally defined clearly, two cases address the more complex delineation of duties when a therapist provides services to a child and the child’s family. (See Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583 (Marlene F.); Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149 (Schwarz).)

In Marlene F., the court held a therapist’s molestation of a child in therapy breached a duty of care owed not only to that child but also to the child’s mother. (Marlene F., supra, 48 Cal.3d at p. 591.) In Schwarz, the court held a therapist did not owe a duty to the father of a child that the therapist treated. (Schwarz, supra, 226 Cal.App.3d at p. 168.) Both cases turned on the pivotal issue of who the treatment was for. In Marlene F., the therapist was providing family therapy to both the child and the mother with the goal of treating intra-family issues. (Marlene F., supra, 48 Cal.3d at p. 590-591.) In Schwarz, the therapist was only responsible for treating the child. (Schwarz, supra, 226 Cal.App.3d at p. 161-162.) Although the parents participated in therapy sessions with the child and one of the purposes of the therapy was to address issues between the child and the parents, the ultimate goal of the therapy was to help the child individually and not repair the family’s disfunction. (Id., at p. 161-163.)

Here, Plaintiff alleges Kendall treated Plaintiff and his family to help them cope with a high conflict divorce. (SAC, ¶ 1.) Plaintiff also alleges “Plaintiff and his daughter were treated in numerous therapy sessions with Kendall.” (SAC, ¶ 2.) However, these allegations constitute sham pleading as they conflict with Plaintiff’s previous allegations and exhibits. The sham pleading doctrine precludes the amendment of complaints that “omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) “If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.” (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.)

In Plaintiff’s first Complaint, Plaintiff alleged “On or around September 20th, 2021, Plaintiff’s daughter, who was 12 years old at the time, began receiving professional therapeutic services by defendant Sarah Lee Kendall.” (Complaint, ¶ 3.) Plaintiff further alleged that Defendants were negligent in “examining, diagnosing and treating, and caring for Plaintiff’s daughter.” (Complaint, ¶ 5.) Additionally, in a “Notice of Intent to File Lawsuit” that was attached as Exhibit A to the Complaint, Plaintiff stated “Sarah Lee Kendall acted as therapist for Plaintiff’s daughter [A.R.] from the dates of September, 2021 through May, 2022.” (Complaint, Ex. A.) Plaintiff explained that “Plaintiff sought and was able to affect a court order for [A.R.] to receive therapy as Plaintiff and his wife are going through a contentious divorce.” (Complaint, Ex. A.) Throughout the letter, Plaintiff only referenced the daughter’s care. (Complaint, Ex. A.)

In Plaintiff’s FAC, Plaintiff listed the parties and stated “Plaintiff is the father of the minor child under Defendants’ care” while failing to mention or state whether Plaintiff was also under Defendants’ care. (FAC, ¶ 4.) Plaintiff also referred to Kendall’s treatment as “his daughter’s therapy” and stated he “simply wanted the best for his daughter.” (FAC, ¶ 59.)

Last, in Plaintiff’s SAC, Plaintiff alleges the purpose of the therapy was to ameliorate the family relationship issues between father and daughter. (SAC, ¶ 11-15.) However, the attached exhibits are inconsistent with Plaintiff’s allegations. (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[T]o the extent the factual allegations conflict with the content of the exhibits to the complaint, we rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”].) In a stipulation signed in September 2021, the parties state the following:

“THERAPY FOR MINOR CHILD: The parties agree to enroll the Minor Child in

individual therapy forthwith. Within 5 calendar days of the signatures of all

parties and counsel to this Stipulation and Order, Respondent/Father shall share a list of 3 therapists with Petitioner/Mother. These therapists shall be geographically convenient to Petitioner/Mother’s home, shall be accepting new patients, and shall be covered under Respondent/Father’s health insurance plan (i.e., his employment-based plan he carries for the family). Within 5 calendar days of Petitioner/Mother’s receipt of this list, she shall select a therapist from the list and communicate that selection to Respondent/Father. The parties shall then work together to execute whatever documentation is required by them from the therapist’s office to get the Minor Child enrolled in therapy. The first appointment for the Minor Child and her new therapist shall be scheduled no later than 2 weeks following the signatures of all parties and counsel to this Stipulation and Order.” (SAC, p. 92, ¶ 2.)

In another stipulation signed in February 2022, parties state the following:

“Since 9/20/21, [A.R.] has been enrolled in therapy with Sarah Lee Kendall, MS, AMFT of Crossroads Family Therapy. Beginning in late November 2021, Respondent was invited by the therapist to begin joining [A.R.] in her therapy sessions. Absent instructions from the therapist for the conjoint sessions to cease, or further order of the Court, [A.R.] shall continue these conjoint sessions with Respondent conducted by Sarah Lee Kendall of Crossroads Family Therapy.” (SAC, p. 44-45.)

Contrary to Plaintiff’s assertions in the SAC, nowhere in the September 2021 stipulation do parties agree that Plaintiff and Plaintiff’s daughter should enter joint therapy together. Instead, the stipulation refers only to therapy for Plaintiff’s daughter. And while the February 2022 stipulation mentions Plaintiff has been attending the daughter’s sessions, the stipulation also allows the therapist to terminate Plaintiff’s involvement. Based on the clear language of both stipulations, it appears any therapy was for the daughter’s benefit. Furthermore, Plaintiff’s prior allegations only reference the daughter’s therapy. Thus, to the extent Plaintiff is now attempting to claim that Defendants actually provided therapy services to both Plaintiff and Plaintiff’s daughter, the court finds these allegations to be sham pleadings, not to be considered by the court.

Although Plaintiff did participate in therapy sessions with his daughter and consult with his daughter’s therapist, these allegations are insufficient to establish the therapist owed duties to both. In Schwarz, even though the plaintiff also participated in therapy sessions with the child, the court noted that was insufficient to establish a duty between plaintiff and the therapist. (Schwarz, supra, 226 Cal.App.3d at p. 162-163.) “That one goal of [the child’s] psychotherapeutic treatment was to address the emotional problems existing between [the child] and his parents and to improve [the child’s] relationships with his parents does not necessarily establish that the treatment was directed at or intended to affect [the parent’s] singular interests.” (Id., at p. 162.)

Because Plaintiff already alleged Defendants provided therapy services to Plaintiff’s daughter, Plaintiff cannot revisit those allegations and change them to include Plaintiff as well.

Additionally, 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 light of the considerations in Schwarz and Segel, the court finds it improper to allow Plaintiff to hold Defendants liable for failing to reunify Plaintiff with Plaintiff’s daughter since it would force the therapist into conflicting duties between what is best for Plaintiff and what is best for Plaintiff’s daughter. As Schwarz aptly notes, what may be best for Plaintiff’s daughter may not be what is best for Plaintiff. (See Schwarz, supra, 226 Cal.App.3d at p. 163.) Although Plaintiff attempts to plead around the prohibition in Civil Code section 43.5, it remains clear that Plaintiff’s alleged damages—severe emotional distress, remedial education expenses, and reunification expenses—were caused by Defendants’ alleged failure to reunify Plaintiff and Plaintiff’s daughter. (SAC, ¶ 1-2, 62-63, 69.)

Accordingly, because Plaintiff’s SAC cannot establish Defendants owed Plaintiff a duty to reunify Plaintiff’s family and because Plaintiff seeks an impermissible recovery for alienation of affection, Defendants’ demurrer is SUSTAINED. Furthermore, 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 SAC is SUSTAINED in its entirety without leave to amend.