Judge: Virginia Keeny, Case: 19VECV00966, Date: 2023-03-10 Tentative Ruling

Case Number: 19VECV00966    Hearing Date: March 10, 2023    Dept: W

NOEL LUSTIG, M.D., INC., dba PSYCHIATRIC MEDICAL GROUP v. MARC L. NEHORAYAN, M.D., A PROFESSIONAL CORPORATION, et al.

DEFENDANT Maria Fajardo’s Demurrer to the second amended complaint

Date of Hearing:        March 10, 2023                                 Trial Date:       N/A

Department:              W                                                        Case No.:        19VECV00966

Moving Party:            Defendant Maria Fajardo

Responding Party:     Plaintiff Noel Lustig, M.D. dba Psychiatric Medical Group  

BACKGROUND

Plaintiff Noel Lustig, M.D., Inc. d/b/a Psychiatric Medical Group (“PMG”) brings this case, alleging the misappropriation of receivables due PMG by Defendants Marc L. Nehorayan, M.D., A Professional Corporation (“Nehorayan Corp.”) and its principal Marc Nehorayan (“Dr. Nehorayan”).  On July 10, 2019, PMG filed its original complaint.  On October 25, 2022, PMG filed its second amended complaint (“SAC”) alleging: (1) breach of fiduciary duty; (2) conversion; (3) fraud; (4) breach of written contract; (5) unfair business practices; (6) unjust enrichment and constructive trust; (7) accounting; and (8) aiding and abetting breach of fiduciary duty. Plaintiff also asserted claims against Mary Fajardo, a former employee of PMG and Amy Steckdaub. Plaintiff dismissed Amy Steckdaub on January 3, 2023.

On July 28, 2020, Cross-Complainants Nehorayan Corp. and Dr. Nehorayan filed their original cross-complaint against PMG.  On November 7, 2022, Cross-Complainants filed their third amended cross-complaint (“TACC”), alleging: (1) conversion; (2) money had & received; (3) imposition of constructive trust; (4) breach of contract; (5) accounting; and (6) aiding and abetting conversion and negligence. 

[Tentative] Ruling

Defendant Maria Fajardo’s Demurrer is SUSTAINED WITH LEAVE TO AMEND.

EVIDENTIARY OBJECTIONS

Defendant Maria Fajardo, in reply, submits evidentiary objections to the declaration of Alan Goldberg submitted in support of PMG’s opposition to the demurrer.

The court sustains objections nos. 1-4.

discussion

Defendant Maria Fajardo demurs to Plaintiff’s Noel Lustig, M.D., Inc. d/b/a Psychiatric Medical Group’s Second Amended Complaint on the grounds the eighth cause of action for aiding and abetting fails to state facts sufficient to constitute a cause of action against Fajardo.

Specifically, Defendant Fajardo demurs to the eighth cause of action on the grounds she cannot be held liable for her conduct in her capacity as an employee of Nehorayan. Agents and employees of a corporation cannot be liable for conspiracy when acting in their official capacities on behalf of the corporation. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 512 n.4.)

In opposition, Plaintiff argues the agent immunity rule is an affirmative defense to a conspiracy cause of action and not for aiding and abetting. Plaintiff cites to CACI 3602 to support their contention. Although CACI 3602 specifically refers to conspiracy, it does not state that the defense applies strictly to claims for conspiracy. Instead, both conspiracy and aiding and abetting are subject to the agent’s immunity rule. In Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823, fn. 10, the court noted aiding and abetting still falls within the ambit of section 1714.10 and would thus be subject to its requirements and exceptions. Although the court specifically referred to pleadings against an attorney for conduct arising from the representation of a client, the court finds that the principles underlying the court’s contention are also applicable to aiding and abetting in the current context. The footnote also notes the difference between conspiracy and aiding and abetting, which Plaintiff claims is why the defense cannot be appliable to the latter. The court noted “[d]espite some conceptual similarities, civil liability for aiding and abetting the commission of a tort, which has no overlaid requirement of an independent duty, differs fundamentally from liability based on conspiracy to commit a tort.” (Ibid.) However, the fact that aiding and abetting does not require an independent tort does not preclude the agent’s immunity doctrine as a defense under aiding and abetting.

Here, the complaint alleges with the assistance of Defendant Fajardo, the Nehorayan Defendants misappropriated receivables. Because there are no allegations Defendant Fajardo was acting for her individual benefit, the court SUSTAINS THE DEMURRER WITH LEAVE TO AMEND.