Opinion
Case No.: 2:22-cv-09272-MEMF-AFM
2023-11-30
Jane DOE, Plaintiff, v. UNITED STATES of America, Defendant.
David Michael Feldman, David M. Feldman Law Offices, Santa Monica, CA, for Plaintiff. John Christopher Korevec, AUSA — Office of US Attorney, Los Angeles, CA, for Defendant.
David Michael Feldman, David M. Feldman Law Offices, Santa Monica, CA, for Plaintiff.
John Christopher Korevec, AUSA — Office of US Attorney, Los Angeles, CA, for Defendant.
ORDER DENYING MOTION TO DISMISS [ECF NO. 14]
MAAME EWUSI-MENSAH FRIMPONG, United States District Judge.
Before the Court is a Motion to Dismiss filed by Defendant United States of America. ECF No. 14. For the reasons stated herein, the Court DENIES the Motion.
I. Background
A. Factual Background
Unless otherwise indicated, the following factual background is derived from Plaintiff Jane Doe's Complaint. ECF No. 1 ("Complaint" or "Compl."). For the purposes of the Motion to Dismiss, the Court treats these factual allegations as true, but at this stage of the litigation, the Court makes no finding on the truth of these allegations and is therefore not—at this stage—finding that they are true.
Plaintiff Jane Doe ("Doe") is an individual residing in Los Angeles, California. Compl. ¶ 5. She brings her suit under the name Jane Doe to protect her identity as a victim of sexual misconduct. See Compl. at 1. Doe is a veteran of the United States Armed Forces. Id. ¶ 1. Defendant in this action is the United States of America ("United States"). See Compl.
Defendant received mental health treatment at the Veterans Affairs Medical Center in West Los Angeles ("WLA VAMC"), a hospital operated by the United States. See id. ¶¶ 4-6. Doe first met with the supervising psychiatrist at WLA VAMC, Dr. Roggenkamp, in October of 2019. See id. ¶ 8. Doe feared medication, and so Dr. Roggenkamp and another psychiatrist in training, Dr. Zu, decided that rather than taking prescribed medication, Doe should participate in "short term psycho dynamic therapy." See id. Dr. Roggenkamp and Dr. Zu referred Doe to Dr. Kanell for therapy. See id. Dr. Kanell was a psychiatrist in training through the residency program. See id. Doe informed Dr. Roggenkamp and Dr. Zu that Doe was hesitant to work with a male therapist because of past sexual trauma but felt that she was ready to try. See id.
Doe met with Dr. Kanell once a week starting in November 2019, and saw Dr. Roggenkamp and Dr. Zu every three months. See id. ¶ 9. Doe felt uncomfortable working with Dr. Kanell because she was attracted to him, and she communicated
this to Dr. Roggenkamp. See id. Dr. Roggenkamp suggested that Doe talk this through with Dr. Kanell. See id. Doe shared this with Dr. Kanell and asked that Dr. Kanell help her learn to trust men in a safe environment. See id. ¶ 10. Doe was uncomfortable with Dr. Kanell in certain early sessions. See id.
As sessions continued, Doe began to have intense romantic feelings for Dr. Kanell. See id. ¶ 11. Doe shared this with Dr. Kanell, and they frequently discussed it in sessions. See id. Doe sensed that Dr. Kanell might share her feelings, and he would at times engage in flirty conversation with her or tell jokes. See id.
Dr. Kanell regularly allowed their sessions to continue beyond the scheduled time, and eventually suggested that they make their sessions 90 rather than 60 minutes. See id. ¶ 12. Their sessions became increasingly erotic. See id. Dr. Kanell asked Doe to describe masturbation and sexual encounters in detail. See id. ¶¶ 12, 13. He asked her to describe actions each of them would take if the two of them had a hypothetical sexual encounter. See id. ¶ 13. She felt he was looking at her chest during certain sessions. See id. He also eventually stated that they could not act on their feelings, because he had a family and because it would not be ethical. See id. The two had 53 sessions in total. See id. ¶ 14. Doe became sexually aroused in many of these sessions, and in at least 20 such sessions, Dr. Kanell asked Doe to describe her feelings of arousal towards him. See id. He would instruct Doe to keep eye contact with him, even if she felt uncomfortable. See id. ¶ 19. Doe often felt that Dr. Kanell was looking at her in a seductive way. See id.
Doe at times suggested that she should cease therapy with Dr. Kanell because of her feelings for him. See id. ¶ 15. These feelings confused her, and she felt that he was playing with her emotions. See id. On at least three occasions, Doe told Dr. Kanell that she was confused because he told her to describe sexual encounters with him, which made her feel that he wanted to have such encounters with her. See id. ¶ 16. He told her that his boundaries were clear, and she was creating her own confusion. See id. Certain sessions were very intimate, including one in which Doe cried while sharing a story about her father. See id. ¶ 18. This caused her feelings for him to grow deeper. See id. Dr. Kanell also described problems in his own relationships to Doe, and in one session they both said that the warmth and connection between them was "nice." See id. ¶¶ 21, 22.
Doe terminated the therapy on December 8, 2020. See id. ¶ 24. Doe explained to Dr. Kanell that she felt he had caused her harm by encouraging the sexual feeling she had for him. See id. He suggested that Doe should investigate the anger she felt towards him. See id.
After Doe terminated the therapy with Dr. Kanell, Dr. Roggenkamp contacted Doe, and told Doe that Dr. Roggenkamp had heard that Doe ended therapy with Dr. Kanell and that it had not ended well. See id. ¶ 25. Dr. Roggenkamp asked Doe if Doe wanted to talk about it. See id. Doe explained to Dr. Roggenkamp that Doe felt sexually exploited by Dr. Kanell and was distressed. See id. Dr. Roggenkamp told Doe that Dr. Roggenkamp would find Doe a new therapist. See id.
At least certain sessions between Doe and Dr. Kanell were video recorded. See id. Another doctor, Dr. Yarns, reviewed the video of one session and told Doe that Dr. Kanell said things he should not have, but that Dr. Yarns did not believe Dr. Kanell was trying to take advantage of Doe. See id.
Since this experience, Doe has felt distress, anxiety, suicidal ideation, helplessness, and trauma. See id. ¶ 26. Doe trusted
Dr. Kanell and feels betrayed. See id. She feels that Dr. Roggenkamp minimized the issues and blamed Doe for not leaving therapy sooner. See id. This has affected Doe's ability to trust therapists and other medical professionals. See id. Doe does not feel safe going to WLA VAMC for treatment. See id.
B. Procedural History
Doe filed suit in this Court on December 21, 2022. See id. She brings two causes of action: (1) intentional infliction of emotional distress; and (2) violation of California Civil Code Section 51.9 ("Section 51.9"). See id.
The complaint does not identify these as separately numbered causes of action, but the Court understands this to be Doe's intention from the context.
The United States filed its Motion to Dismiss on May 12, 2023. ECF No. 14 ("Motion" or "Mot."). Doe filed an Opposition to Motion on May 25, 2023. ECF No. 18 ("Opposition" or "Opp'n"). The United States filed a Reply in support of the Motion on June 16, 2023. ECF No. 21 ("Reply").
The Court held oral argument on the Motion on November 30, 2023, after providing the parties with a tentative opinion.
II. Applicable Law
A. Rule 12(b)(1)
"Federal courts are courts of limited jurisdiction," and can only hear cases where there is a valid basis for federal jurisdiction. Richardson v. United States, 943 F.2d 1107, 1112 (9th Cir. 1991). Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") authorizes a party to seek dismissal of an action for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).
The burden of establishing that a federal court has subject matter jurisdiction "rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
B. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows an attack on the pleadings for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
The determination of whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. Generally, a court must accept the factual allegations in the pleadings as true and view them in the light most favorable to the plaintiff. Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017); Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). But a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
As a general rule, leave to amend a dismissed complaint should be freely granted unless it is clear the complaint could not be saved by any amendment. Fed. R. Civ. P. 15(a); Manzarek v. St. Paul
Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
III. Discussion
The United States moves to dismiss both of Doe's causes of action on various grounds. See Mot. For the reasons discussed below, the Court finds that Doe has stated a claim under both causes of action, and that the United States' arguments fail. The Motion is therefore DENIED as to both causes of action.
A. Doe's claims need not comply with California's medical negligence requirements (first and second causes of action).
The United States' first argument is that although Doe did not bring a medical malpractice claim, because her claims sound in medical negligence, her claims must meet California's standards for a medical negligence action. See Mot. at 5-7. This argument fails as this Court finds that her claims do not sound in medical negligence.
To state a claim for any form of professional negligence under California law, including medical negligence, a plaintiff must plead: "(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, 31 Cal.3d 220, 182 Cal.Rptr. 337, 643 P.2d 954, 960 (1982). The United States argues that if Doe's claims are analyzed under this standard; they fail because Doe has not pleaded facts regarding the applicable standard of care or pleaded facts showing a breach of that standard.
The Court need not reach the question of whether this contention—that Doe's claims would fail under the professional negligence standard—is correct, because the Court finds that Doe need not meet the professional negligence standard for the reasons described above.
The Court also notes that at the hearing, counsel for the United States expressed concern that Doe would not be required to show the duty of care and breach of the duty of care if the Court finds that she is not bringing a medical negligence claim. Although the Court does not express a view on that question at this time, counsel for Doe did assert that he believes that Doe does need to show the duty of care and breach of the duty of care if this case goes forward, even if the Court finds that her claims are not medical negligence claims.
The California Supreme Court has explained the circumstances under which the standards governing medical negligence should be applied to actions that are not explicitly labeled as medical negligence. For example, in Central Pathology Services Medical Clinic, Inc. v. Superior Court, the Court held that a statutory procedural rule that applies to claims arising out of medical negligence claims (California Code of Civil Procedure Section 425.13 ) was applicable to causes of action for fraud and intentional infliction of emotional distress that were "directly related to the manner in which defendants provided professional services." See Cent. Pathology Serv. Med. Clinic, Inc. v. Superior Ct., 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924, 931 (1992). The court explained that to determine whether these causes of action arose out of medical negligence, "the nature
California Code of Civil Procedure Section 425.13 limits when a plaintiff may seek punitive damages in a negligence action against a health care provider. See Code Cal. Civ. Proc. § 425.13. Doe does not seek punitive damages here, so Section 425.13 has little relevance to this action. See Compl. The relevance is only to show that in some circumstances, rules applicable to medical negligence actions apply to actions not explicitly labeled as negligence.
and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided." Id. The court went on to explain that "a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented" would constitute a claim arising out of medical negligence, while "a cause of action against a health care provider for sexual battery would not ... because the defendant's conduct would not be directly related to the manner in which professional services were rendered." Id. (emphasis added).
Similarly, in Turpin, the plaintiff brought a novel claim for "wrongful life," based on the theory that doctors who treated the plaintiff's parents' first child failed to advise the parents of the first child's condition and the fact that the condition was hereditary, leading the parents to conceive a second child with the same condition. See Turpin, 182 Cal.Rptr. 337, 643 P.2d at 956. The court explained that despite the "special name," plaintiff's wrongful life action was "simply one form of the familiar medical or professional malpractice action." Id., 182 Cal.Rptr. 337, 643 P.2d at 959. The court thus applied the professional negligence elements described above and held that the plaintiff had stated a claim for certain forms of damages. See id., 182 Cal.Rptr. 337, 643 P.2d at 959-66.
Here, Doe's allegations are not that Dr. Kanell breached the duty of care attendant to medical providers or that he rendered treatment different from what she consented to. Rather, drawing all inferences in Doe's favor, Doe's allegation is that Dr. Kanell sexually harassed her by deliberately playing with her emotions and encouraging her to become aroused by him, all for his enjoyment. See, e.g., Compl. ¶¶ 13 ("Dr. Kanell was staring/looking at her chest ... Dr. Kanell asked plaintiff to describe in explicit detail a sexual encounter between him and plaintiff."), 20 ("He then had us do eye gazing and being present with each other without speaking for several minutes and just sitting there making eye contact ... this was extremely intense, uncomfortable and erotic."), 22 ("we both said that it was a 'nice' feeling."), 24 ("she felt he played into and encouraged the sexual feelings that she had towards him which caused her a lot of harm and distress"). In other words, Doe does not allege that Dr. Kanell failed to provide proper treatment, but rather took advantage of the trust she placed in him for some form of sexual or emotional gratification —therefore sexually harassing her and intentionally inflicting emotional distress on her. Doe seeks to hold the United States liable for Dr. Kanell's conduct, presumably through respondeat superior. Following the guidance from Central Pathology, this is more akin to sexual battery (which the California Supreme Court found would not constitute a claim arising out of medical negligence) than to a battery claim based on treatment differing from what the patient consented to (which the California Supreme Court found would constitute a claim arising out of medical negligence). See Cent. Pathology, 10 Cal. Rptr.2d 208, 832 P.2d at 931. Examining the "nature and cause" of Doe's injury, the Court concludes that they are not "directly related to the manner in which professional services were provided" as described in Central Pathology. See id.
At the hearing in this matter, counsel for the United States pointed the Court to Simmons v. United States, 805 F.2d 1363 (9th Cir. 1986) for the proposition that claims that a counselor mishandled transference —a patient's emotional reaction to a therapist—are analyzed by courts as medical negligence. A close reading of Simmons reveals that it does not stand for this proposition. The question presented in Simmons was not whether a claim regarding transference not labeled as medical
negligence should nevertheless be treated as medical negligence. To the contrary, the question was whether (and why) liability could be imposed on a therapist who mishandled transference. The court's response to the question of whether liability could be imposed was yes—because medical authorities consider such misconduct to be malpractice (as opposed to harmless) and because courts have found such misconduct to be malpractice (as opposed to sexual contact with patients which is not generally considered to be malpractice). See Simmons, 805 F.2d at 1364 ("To answer the questions of when Ms. Simmons understood the cause of her injury and whether Mr. Kammers' conduct was within the scope of his employment requires an understanding of the nature of the transference phenomenon and the consequence of a therapist's mishandling of the phenomenon."), 1365 ("When the therapist mishandles transference and becomes sexually involved with a patient, medical authorities are nearly unanimous in considering such conduct to be malpractice ... Courts have uniformly regarded mishandling of transference as malpractice or gross negligence."). The court found that mishandling of transference was malpractice because therapists "offer a course of treatment and counseling predicated upon handling the transference phenomenon." Id. at 1366. For the court to find that mishandling of transference was indeed malpractice says nothing about whether any claim involving transference sounds only in medical negligence.
Accordingly, Doe's claims—as she has pleaded them—do not arise out of medical negligence and therefore do not sound in medical negligence requiring that Doe meet the elements of a medical negligence claim. The Motion is therefore DENIED on this ground.
B. The sovereign immunity doctrine does not bar Does' claim for violation of Section 51.9 (second cause of action).
The United States argues that it has not consented to suits based on Section 51.9, and that the Court lacks subject matter jurisdiction over this claim. See Mot. at 7-8. Doe disagrees. See Opp'n at 7-8. The Court finds that because this claim sounds in tort and is based on an alleged wrong committed within the scope of Dr. Kanell's employment, the United States consented to suit via the Federal Tort Claims Act ("FTCA").
The United States generally enjoys immunity from civil suits pursuant to the sovereign immunity doctrine unless the United States waives its immunity and consents to being sued. See Richardson, 943 F.2d at 1113. "Subject matter jurisdiction for suits against the government" requires such a waiver, and absent a waiver, a federal court lacks jurisdiction to hear a claim against the United States. See id. "Any such waiver must be strictly construed in favor of the United States." Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000).
The United States has waived its immunity over tort claims via FTCA. See 28 U.S.C. § 1346. The FTCA provides a waiver of sovereign immunity for "civil actions ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1) (emphasis added). The FTCA is a "grant of jurisdiction" over claims it applies to. Richardson, 943 F.2d at 1113. The key issue here is whether the FTCA applies to suits based on violation of Section 51.9. The Court is not aware of any authority directly addressing the issue. It is plain that Doe's Section 51.9 claim is based on alleged wrongful acts by an employee of the United States, acting within the scope of his employment, which she alleges causes her injury. See 28 U.S.C. § 1346(b)(1) (defining the scope of suits authorized to include "civil actions... for injury ... caused by the ... wrongful act ... of any employee of the Government while acting within the scope of his ... employment."). First, the United States has not argued that Dr. Kanell was acting outside the scope of his employment when he allegedly committed the wrongful acts, and so the Court sees no basis to find he was acting outside the scope of his employment. See Mot. On this basis, the claim appears to fall within the FTCA. See 28 U.S.C. § 1346(b)(1). Second, although Doe's Section 51.9 claim is based on statute, not common law, the Court is not aware of any authority holding that this alone means that a violation of Section 51.9 does not constitute a tort and is therefore outside the scope of the waiver of immunity contained in the FTCA. Many modern tort claims are defined by statute. See, e.g., Cal. Code. Civ. Pro. § 1714 (statutory negligence).
The United States points to a number of district court cases to support its position that statutory discrimination claims are not torts within the scope of the FTCA. See Mot. at 8. This authority is not binding on this Court, and does not directly address the question presented in Doe's case. First, in Stringer v. White, the court held that a claim under the Americans with Disabilities Act ("ADA") "is not a tort and does not fall under the FTCA." Stringer v. White, No. C-07-5516 SI, 2008 WL 344215, *5 (N.D. Cal. Feb. 6, 2008). But the Stringer court did not hold that ADA claims are barred by sovereign immunity, rather, it held that these claims are not limited by the FTCA's requirement of exhaustion of remedies. See id. Second, in Williams v. Federal Deposit Insurance Corporation, the court wrote that a violation of the Illinois Human Rights Act "is a statutory violation, not a tort." Williams v. Fed. Deposit Ins. Corp., No. 07 C 4672, 2009 WL 1209029, *2 (N.D. Ill. Apr. 30, 2009). But the Court did not hold that such claims are barred by sovereign immunity, and rather held that a previous dismissal of this claim "was necessarily a dismissal of an FTCA claim," because the plaintiffs conduct made clear that the state law claim was brought pursuant to the FTCA. See id. Neither case reached the question the Court faces here.
Here, as discussed above, the claim is based on a wrongful act of a government employee acting within the scope of his employment. Accordingly, it falls squarely within the plain language of the FTCA. Although the waiver of immunity in the FTCA must be construed narrowly, see Brady, 211 F.3d at 502, the Court nevertheless finds that the conduct alleged here is within that waiver. This claim is therefore not barred by sovereign immunity.
C. Doe adequately stated a claim for intentional infliction of emotional distress (first cause of action).
Under California law, stating a claim for intentional infliction of emotional distress requires: "(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." Hughes v. Pair, 46 Cal.4th 1035, 95 Cal.Rptr.3d 636, 209 P.3d 963, 976 (2009). Liability "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Id. The Defendant's conduct must be "outrageous," meaning that it must be "so extreme as to exceed all bounds of that
usually tolerated in a civilized community." Id. Here, the Court finds that Doe's claim meets that standard.
First, the Court finds that Doe's allegations, if taken as true, show conduct that is sufficiently outrageous to constitute intentional infliction of emotion distress. The United States relies heavily on Hughes, where the court found that certain conduct that could be described as sexual harassment was not sufficiently out-rageous. See Mot. at 10-11. In Hughes, the defendant—Pair—was one of three trustees of a multi-million-dollar trust established for the benefit of the plaintiff's minor son. Pair invited Hughes and her son to an event with him and his son. In the telephone call inviting her to the event, Pair called her "sweetie" and "honey," and told her that "he thought of her 'in a special way, if you know what I mean.'" See Hughes, 95 Cal.Rptr.3d 636, 209 P.3d at 968. At the event itself, he told the Pair, among other things, "I'll get you on your knees eventually. I'm going to fuck you one way or another." Id., 95 Cal.Rptr.3d 636, 209 P.3d at 969. All of this conduct occurred on one day, during a single phone conversation and a brief statement in person. Id., 95 Cal.Rptr.3d 636, 209 P.3d at 974. The court held that this conduct, "[v]iewed in the context" of legal battles between Hughes and Pair over the allocation of trust funds, fell "far short of conduct that is so 'outrageous' that it 'exceeds all bounds of that usually tolerated in a civilized community.'" Id., 95 Cal.Rptr.3d 636, 209 P.3d at 978 (internal alterations omitted). The court also noted that the Hughes's allegations of emotional harm were insufficient. See id.
Here, the conduct is distinguishable from that in Hughes. First, in Hughes, the alleged conduct was essentially two isolated incidents at most, confined to a phone call and a comment later that day. See id., 95 Cal.Rptr.3d 636, 209 P.3d at 968. Here, the alleged conduct occurred repeatedly— at least 20 times—over a period of more than a year. See Compl. ¶¶ 13, 14, 24. Second, the conduct in Hughes was not particularly severe as only a few relatively mild comments were made—albeit unwanted and wildly inappropriate. Here, by contrast, Dr. Kanell allegedly solicited lengthy, detailed conversations about graphic sexual matters. See Compl. ¶¶ 12-23. Third, in Hughes, Pair had at best some limited financial leverage over Hughes. In contrast, Dr. Kanell had a position of trust and power over Doe as her therapist. This is demonstrated in part by the fact that Doe alleges he successfully discouraged her from ceasing therapy. See Compl. ¶¶ 15. Finally, Doe was a vulnerable survivor of sexual trauma, thereby making Dr. Kanell's actions particularly outrageous, in contrast to Hughes, where there is no allegation that Hughes was particularly vulnerable to Pair's harassing conduct. See Compl. ¶ 8.
The Court finds that Hughes does not support a determination that Doe has not pleaded "outrageous" conduct. Drawing all inferences in favor of Doe, a reasonable juror could find the alleged conduct—a therapist deliberately toying with a vulnerable patient's emotions for his own sexual and emotional gratification in the guise of therapy—is sufficiently outrageous that it "exceeds all bounds of that usually tolerated in a civilized community." See id., 95 Cal.Rptr.3d 636, 209 P.3d at 978.
Second, the Court finds that Doe's allegations are sufficient at this stage regarding Dr. Kanell's intent. The United States argues that Doe failed to allege that Dr. Kanell acted with the intent to harm Doe or with reckless disregard for the probability of harm. See Mot. at 11-12. However, Dr. Kanell was allegedly on notice that Doe had feelings for him, and that his conduct was causing her confusion. See
Compl. ¶¶ 15, 16. Despite this, he allegedly persisted in his conduct for his own gratification. See id. ¶¶ 12 ("This led plaintiff to believe that he was interested in having sex with her and was into and enjoyed hearing about the sexual fantasies she was having."), ¶ 13 ("She felt like he was asking her to keep all of this a secret and that he was going to decide if he wanted to have a sexual relationship only if he knew plaintiff would keep it a secret"), 15 ("It felt like he was playing with my emotions."). Based on these allegations, a reasonable juror could find that, at minimum, Dr. Kanell acted with recklessness towards the risk of emotional harm to Doe.
The United States points to Dove v. PNS Stores, Inc., 982 F. Supp. 1420, 1426 (C.D. Cal. 1997) for the proposition that Dr. Kanell's persisting in his conduct with the knowledge of Doe's vulnerability is insufficient to show intent. See id. ("At most plaintiff claims that he 'interpreted' Collins' statements as an intention to prompt plaintiff to quit; that he was in fact harmed by Collins' statement; and that defendant's knowledge of plaintiff's limited capabilities should have been sufficient for Collins to be aware that his statements would cause plaintiff emotional harm. Yet, defendant's awareness of plaintiff's susceptibility to emotional distress is insufficient to prove intent. Plaintiff must also show that Collins acted with the purpose of causing plaintiff to suffer emotional distress." (emphasis added)). Not only is Dove not binding authority, but it was at the motion for summary judgment stage, and the court does not purport to announce that awareness of susceptibility is never sufficient. In that case, the court found that "Plaintiff must present more than a scintilla of evidence that Collins was aware of the nature and extent of Dove's disability, and that he acted with the intent or deliberate disregard of the harm his conduct might cause plaintiff in light of such awareness" and that the plaintiff in that case failed to do so as he relied solely on two statements which were at best "thoughtless or insensitive." Id. at 1427. It was important to the court, for instance, that there was no evidence of awareness of continuing harassment by fellow employees that was not investigated. See id. Here, as discussed, the allegation is that there was repeated conduct over a period of time for Dr. Kanell's gratification, which in the context of Dr. Kanell's knowledge, could evidence intent.
The United States has not raised any arguments as to the third of fourth elements, and the Court finds that the allegations are also sufficient to meet these elements. Accordingly, Doe has stated a claim for intentional infliction of emotional distress.
D. Doe stated a claim for violation of Section 51.9 (second cause of action).
To state a claim under Section 51.9, a plaintiff must allege that the defendant made "sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe." See Cal. Civ. Code § 51.9(a)(2); see also Hughes, 95 Cal. Rptr.3d 636, 209 P.3d at 973. Here, a reasonable juror could find this standard met.
Doe alleges that Dr. Kanell asked her to describe hypothetical sexual encounters between the two of them in detail, and to describe how she felt while masturbating, "push[ing] [her] to say that it made [her] want to have sex with him." See Compl. ¶¶ 12, 13. She further alleges that on many occasions, she described feeling aroused towards him and he instructed her to maintain eye contact with him even if she felt uncomfortable. See id. ¶ 19. Taking these allegations as true, a jury could find that Dr. Kanell made "sexual requests." See Cal. Civ. Code § 51.9(a)(2). Although, as the government notes, Dr. Kanell allegedly made clear that they could not have a physical relationship, what Doe alleges could also be described as very equivocal language actually suggesting a relationship
might be possible, particularly when he allegedly spoke with her about the problems in his own relationship. See Compl. ¶ 21. Accordingly, a jury could find that asking for a detailed description of a hypothetical sexual encounter could still be construed as a sexual request, even if accompanied by such language. No authority suggests that this conduct is outside the scope of Section 51.9.
The United States argues that "the sexually explicit statements were made by [Doe], not by Dr. Kanell." See Mot. at 9. But this is not true as to all alleged statements. As discussed above, Doe alleges that "Dr. Kanell asked plaintiff to describe in explicit detail a sexual encounter between him and plaintiff." Compl. ¶ 12. This is an alleged instruction from Dr. Kanell, not a statement made by Doe to him. Further, it strains credulity that forcing someone to discuss sexual matters in graphic detail does not constitute "sexual requests," "solicitations," or at the very least "other verbal ... conduct of a sexual nature." See Cal. Civ. Code § 51.9(a)(2). The Court therefore finds that Doe has properly stated a claim for violation of Section 51.9.
And it is certainly much more than merely "listen[ing] to [Doe] say sexually explicit things ... during psychiatric treatment, while rightly declining to pursue a romantic relationship with her, his patient." See Mot. at 9.
IV. Conclusion
For the reasons stated herein, the United States' Motion is DENIED as to all of Doe's claims.
IT IS SO ORDERED.