DOE VS. SCHENK, MFC, RAS

Hood v. Hacienda La Puente Unified School District (1998) 65 Cal. App. 4th 435, 438. No matter how unlikely, a plaintiff’s allegations must be accepted as true for the purpose of ruling on a demurrer. Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. A plaintiff must plead ultimate facts that acquaint the defendant with the nature, source and extent of plaintiff’s causes of action. Doe v. City of Los Angeles (2007) 42 Cal. 4th 542, 550.

Second Cause of Action. Defendant demurrers to the cause of action for intentional infliction of emotional distress on the grounds that the Complaint fails to allege facts that Defendant’s conduct was so extreme and outrageous as to warrant a claim. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of 3

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.” Cervantez v. J.C. Penny Co. (1979) 24 Cal.3d 579, 593. “[T]here is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 905. “[T]he qualifying conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Melorich Builders v. Superior Court (1984) 160 Cal.App.3d 931, 936.

The Complaint alleges that (1) Defendant’s conduct was “intentional, outrageous, malicious, and done for the purposes of causing Plaintiff to suffer humiliation, mental anguish, and severe emotional distress;” (2) that Plaintiff “has suffered, and will continue to suffer special damages in the form of past and future medical costs and expenses and past and future lost earnings;” (3) and that Defendant’s conduct was the direct and proximate cause of Plaintiff’s suffering. Additionally, the complaint provides several specific examples of purported conduct by Defendant which Plaintiff alleges is outrageous.

This alleged outrageous conduct includes Defendant’s explicit discussions of his own sexual habits and history. The Court finds all necessary elements for a cause of action for intentional infliction of emotional distress have been sufficiently alleged. The demurrer to the Second Cause of Action is OVERRULED.

Fourth Cause of Action. Defendant demurrers to the general negligence cause of action on the grounds that the claim is duplicative of the First Cause of Action for professional negligence. Plaintiff submits on this argument. The Complaint shows that the professional and general negligence claims are both derived from the same set of facts and circumstances. The demurrer to the Fourth Cause of Action is SUSTAINED without leave to amend.

Fifth Cause of Action. Defendant demurrers to the fraud and deceit cause of action on the grounds that the claim is not pled with the required heightened specificity. “The elements of fraud, which give rise to the tort action for deceit, are (1) misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity (or 'scienter'); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” Orient Handel v. United Stated Fid. & Guar.

Co. (1987) 192 Cal.App.3d 684, 693. “To withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782. “This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.’” Lazar v.

Superior Court (1996) 12 Cal.4th 631, 644. “Even in a case involving numerous oft-repeated misrepresentations, the plaintiff must, at a minimum, set out a representative selection of the alleged misrepresentations sufficient to permit the trial court to ascertain whether the statements were material and otherwise actionable.” Goldrich, supra, 25 Cal.App.4th 772, 783.

Defendant argues that there are insufficient facts to show what statements were made, how they were false, how Plaintiff justifiably relied on them, or how Plaintiff was damaged. Here, the Complaint alleges that (1) Defendant represented to Plaintiff “that he would do all things necessary to diagnose, care for, and treat Plaintiff,” (2) that this representation was false; (3) that Defendant was “only interested in giving the appearance of treating her so that he could collect fees for her services;” (4) that Plaintiff “reasonably relying on his alleged professional education, training, experience, and representation, agreed to treat with Defendant” and that Plaintiff would not have done so had she known Defendant’s true intent; and (5) Plaintiff has sustained damages in the form of medical expenses and lost wages.

While a representative selection of the alleged misrepresentations is acceptable, the Complaint fails to offer specific facts stating how, when, or where the representations were made. The demurrer to the Fifth Cause of action is SUSTAINED. As these defects could be cured by Plaintiff providing additional clarity and particularity, leave to amend will be granted.

The Demurrer is OVERRULED in part and SUSTAINED in part as outlined above. Leave to amend is granted regarding the Fifth Cause of Action in the timeframe to amend set forth in CRC 3.1320(g). Defendant provided a proposed Order that will be modified to reflect the Court’s ruling.

KNOX VS. MOHAMUD, ET AL.