Opinion
B332508
04-25-2024
BRENT RUPNOW, Plaintiff and Appellant, v. ABUNDANCE THERAPY INC. et al., Defendants and Respondents
Brent Rupnow, in pro. per., and Plaintiff and Appellant. Callahan, Thompson, Sherman &Caudill and Christopher J. Zopatti for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 22PSCV02033, Salvatore Sirna, Judge. Affirmed.
Brent Rupnow, in pro. per., and Plaintiff and Appellant.
Callahan, Thompson, Sherman &Caudill and Christopher J. Zopatti for Defendants and Respondents.
ZUKIN, J.
INTRODUCTION
This civil case arises out of a high conflict divorce between plaintiff Brent Rupnow (Rupnow) and his wife involving custody of their minor daughter (A.R.). In the family court, Rupnow requested an order to enroll A.R. in therapy, alleging alienation from A.R. Rupnow and his wife stipulated to enrolling A.R. in individual therapy with defendant Sarah Lee Kendall (Kendall).
Throughout the appellate briefing and pleadings, the parties do not refer to Rupnow's wife by name, just as "wife." For consistency, we do the same.
When Rupnow's relationship with his daughter failed to improve, Rupnow sued Kendall and her supervisor and employers, Karen H. Allen (Allen), Crossroads Family Therapy LLC (Crossroads), and Abundance Therapy Center, Inc (Abundance). The operative complaint alleges claims for negligence, negligence per se, and negligent hiring, supervision, and retention based on Kendall's alleged misdiagnosis and incorrect treatment of A.R. Rupnow alleged Kendall's misconduct caused A.R. to remain alienated from him and caused him to suffer emotional distress living without her love and affection.
Defendants demurred to Rupnow's original and first amended complaints for failure to state a cause of action. The trial court sustained both demurrers with leave to amend.
Rupnow filed a second amended complaint, which the court determined possessed the same defects as the first two pleadings. The court sustained defendants' third demurrer without leave to amend and dismissed the action with prejudice.
The trial court concluded Rupnow's second amended complaint was barred by California's prohibition against claims for alienation of affection (Civ. Code, § 43.5, subd. (a)). The court reasoned that the crux of the alleged misconduct and harm stemmed from defendants' failure to reunify Rupnow with his daughter. To avoid section 43.5's scope, Rupnow was required to establish that defendants owed him an independent duty of care. The court reasoned because the scope of defendants' engagement was A.R.'s individual therapy, defendants did not owe Rupnow a duty of care. We affirm.
All further statutory references are to the Civil Code unless otherwise specified.
PROCEDURAL AND FACTUAL BACKGROUND
Because this matter comes before us from a judgment of dismissal following the sustaining of a demurrer, our summary of facts is limited to those pled in Rupnow's second amended complaint (SAC) and in the attached exhibits. (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 504-505.) To the extent there is a conflict between the complaint and an exhibit, the facts contained in the exhibit supersede any inconsistent or contrary allegations in the operative complaint. (Id. at p. 505.)
A. The Therapeutic Engagement
In August 2021, Rupnow filed a request for order (RFO) in family court seeking an order to enroll A.R. in therapy. In his supporting declaration, he alleged his wife alienated A.R. from him. Rupnow declared A.R. ceased communications with him when he moved out of the family residence. He stated before that day, he and A.R. were "communicating non-stop."
The next month, Rupnow and his wife stipulated to a court order enrolling A.R. in therapy. Under a heading entitled "Therapy for Minor Child," the parties outlined the parameters for A.R.'s "individual therapy," including the timeline for the first appointment for "the Minor Child and her new therapist." Rupnow agreed to provide his wife with a list of therapists from which to choose.
Rupnow's wife chose Kendall. Kendall was employed at Crossroads and supervised by Allen. Kendall later moved her employment to Abundance.
The original complaint listed "Allen" as a party to the lawsuit. Though Rupnow spells her name differently in the SAC, we refer to her as "Allen" for consistency, as did the trial court.
In September 2021, A.R. began therapy with Kendall.
In the first months of Kendall's engagement with A.R., Rupnow voiced concerns about Kendall "aligning" with his "wife's version of the events" and updating his wife, not him, about A.R.'s therapy.
Following Rupnow's complaints, Kendall permitted Rupnow to join some of A.R.'s therapy sessions. Rupnow and his wife filed an updated stipulation to reflect the change. The stipulation reiterated the individual nature of the therapy, providing Kendall "invited" Rupnow to join in A.R.'s sessions. The stipulation gave Kendall and the court authority to revoke consent to Rupnow's participation in sessions.
When Rupnow began participating in the sessions, he could see "the family relationship issues were badly deteriorating." During sessions, Kendall told Rupnow to "take [A.R.'s] delusional beliefs about him at face value, accept [A.R.'s] unacceptable behavior, uncritically accept [false] accusations as true . . . and abandon all standards he has for [A.R.'s] behavior, schoolwork, attendance, attitude, or manners."
Kendall wrote progress notes describing the sessions Rupnow joined. Kendall consistently referred to A.R. as "client" and to Rupnow as "client's father." Kendall also wrote in her notes that she "assist[ed] client [to] process her feelings toward [the joint] session" or that she would "process feelings with client regarding [the joint] session in the next individual session."
On May 7, 2022, Rupnow told Kendall that A.R.'s therapy needed a change because there was "no progress whatsoever in [A.R.'s] interactions with [Rupnow]" and that "rather than the family relationship being ameliorated by the therapeutic engagement, it was deteriorating badly due to Kendall's incompetence." Rupnow continued, "after this many months, given the level of closeness that [A.R.] and I shared throughout her entire life, she should have been able to think through things enough to know that I love her . . . It absolutely hurts that she wants nothing to do with me." Throughout the email, he referred to A.R.'s therapy and referred to A.R., not himself, as the "patient."
The next week, Rupnow and Kendall met to discuss "[Rupnow's] concern that '[A.R. was] making no progress.'" "[Kendall] made it clear [to Rupnow that Kendall] followed the goals [A.R.] set, not the goals [Rupnow] nor [Rupnow's wife] set for [A.R.] due to the clinical frame being [A.R.]'s individual therapy sessions."
The next day, Rupnow submitted a written complaint to Allen, Kendall's supervisor, reiterating the concerns he shared with Kendall regarding the lack of "progress" resulting from A.R.'s therapy. Rupnow stated "my position is that the engagement [with Kendall] is about my daughter." He also stated, "[a] theme that continued was a diminishment of a father's role in a split family setting.... Her open hostility to my role as [A.R.'s] father is disturbing."
In August 2022, Rupnow served defendants with a "Notice of Intent to
File Lawsuit" "as a formal notice that [Rupnow] intend[ed] to commence a lawsuit against [defendants] due to the following facts and circumstances." The allegations in the notice were focused on Kendall taking his wife's side, the lack of A.R.'s progress, and Kendall's tactics "to further the parental alienation of [Rupnow] from [A.R.] on multiple occasions." As with the other communications, Rupnow described the scope of the therapeutic engagement as A.R.'s "individual therapy."
Rupnow's motions for judicial notice are denied. In support of his appeal, Rupnow filed two motions for judicial notice of legislative history "regarding the regulation of marriage, family, and child counselors," related statutory provisions, letters from the California Board of Behavioral Sciences regarding an administrative complaint he filed against defendants, and information from the World Health Organization about diagnosing Complex PTSD and Prolonged Grief Disorder. The material clearly has no relevance to the dispositive issues on appeal, so the request for judicial notice is denied. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4 [denying request for judicial notice based on plaintiffs' failure to demonstrate relevance].)
B. The SAC and Demurrer
In November 2022, Rupnow initiated a civil lawsuit against defendants. Defendants filed demurrers to Rupnow's original and first amended complaints for failure to state a cause of action because Rupnow could not establish defendants owed him a duty of care. The court sustained both demurrers with leave to amend.
In May 2023, Rupnow filed the SAC against defendants, alleging causes of action for (1) negligence, (2) negligence per se, (3) and negligent hiring, supervision, and retention.
In essence, Rupnow alleged he suffered emotional distress from the continued loss of A.R.'s love and affection due to defendants' professional negligence. He alleged Kendall, and the other defendants as her employers and supervisor, failed to recognize A.R's "symptoms" of "attachment-based parental alienation."
Instead of recognizing his wife's alienating behavior, Kendall allowed herself to become aligned with A.R.'s mother. He alleged Kendall improperly used methods of treatment contraindicated for a child experiencing an "attachment-based model of parental alienation."
As a result of the alleged misconduct, Rupnow suffered severe emotional distress and economic loss.
Defendants filed a third demurrer to Rupnow's operative complaint arguing Rupnow failed to state a cause of action as to all three claims. The trial court sustained the demurrer without leave to amend.
In ruling, the court concluded Rupnow's claims were barred by Civil Code section 43.5, subdivision (a), which precludes causes of action for alienation of affection. The court stated "[a]lthough [Rupnow] attempts to plead around the prohibition in [§ 43.5], it remains clear that [Rupnow's] alleged damages . . . were caused by [d]efendants' alleged failure to reunify [Rupnow with his] daughter." The court also found Rupnow failed to establish defendants owed him a duty of care to prevent the alleged harm because defendants provided individual therapy to A.R. and never treated Rupnow.
The court's judgment of dismissal followed and Rupnow timely appealed.
DISCUSSION
Rupnow contends the trial court erred in sustaining the demurrer without leave to amend.
A. Standards of Review and Governing Principles
A demurrer tests the legal sufficiency of the challenged pleading. (Milligan v. Golden Gate Bridge Highway &Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action on any theory. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) "We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. [Citation.] We construe the pleading in a reasonable manner and read the allegations in context." (Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 81.) "If the allegations in the complaint conflict with the exhibits, we rely on and accept as true the contents of the exhibits." (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) "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.)
We review de novo a trial court's ruling on a demurrer. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 51 (Allen).)
The plaintiff bears the burden of demonstrating the demurrer was sustained erroneously. (Allen, supra, 234 Cal.App.4th at p. 52.) As in all appeals, it is the responsibility of the appellant to support claims of error with meaningful argument and citation to authority. (Allen, at p. 52; see Cal. Rules of Court, rule 8.204(a)(1)(B).) "When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.] In addition, citing cases without any discussion of their application to the present case results in forfeiture. [Citations.] We are not required to examine undeveloped claims or to supply arguments for the litigants." (Allen, at p. 52; Paterno v. State of California (1999) 74 Cal.App.4th 68, 104.) Self-represented litigants are subject to the same rules as litigants who are represented by legal counsel. (Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344-345; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
When a trial court sustains a demurrer without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment." (Blank, supra, 39 Cal.3d at p. 318.) If we find an amendment could cure the defect, we conclude the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. (Ibid.) The plaintiff has the burden of proving that an amendment would cure the defect. (Ibid.; see Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
B. No Tort Liability for Alienation of Affection
Rupnow asserts the trial court erred in applying section 43.5 to his SAC. Section 43.5 provides, "No cause of action arises for: [¶] (a) Alienation of affection." He argues the statute does not preclude his SAC because his case is not a "simple alienation of affection claim," but is about defendants' "alleged failure of therapists to maintain their duty of care [to him], critically affecting his relationship with his daughter." To avoid section 43.5's reach, however, Rupnow must establish defendants owed him an independent duty of care to prevent the alleged harm. Because Rupnow cannot establish the existence of such a duty, we reject his contention.
1. Legal Framework
As a threshold matter, we agree with the trial court that the alienation of A.R.'s affection lies at the root of Rupnow's action. As discussed, the gravamen of A.R.'s SAC is that defendants further destroyed his relationship with his daughter rather than improve it, robbing him of A.R.'s love and affection and causing him emotional distress. Rupnow himself reiterates the point, asserting in his opening brief that "[t]he loss of a child, not to mortality but to the depths of severe psychopathology represents one of the most profound emotional agonies a parent can endure."
"Section 43.5 was enacted to eliminate a class of lawsuits which were often fruitful sources of fraud and extortion and easy methods 'to embarrass, harass, and besmirch the reputation of one wholly innocent of wrongdoing.'" (Richard H. v. Larry D. (1988) 198 Cal.App.3d 591, 595-596 (Richard H.); see also In re Marriage of Segal (1986) 179 Cal.App.3d 602, 609 [California courts have long-held "'[l]osses of parental or filial consortium are not actionable. "[T]he inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards, constitutes a strong reason for refusing to recognize [such a] claim"'"].)
Section 43.5 "creates a blanket immunization from [tort] liability for the conduct it protects unless such conduct 'breaches a duty of care independent of the causes of action barred therein.'" (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 267; accord Smith v. Pust (1993) 19 Cal.App.4th 263, 269 (Smith); see also Richard H., supra, 198 Cal.App.3d at p. 596 [explaining the reasoning for the carveout from "blanket immunization": "We do not think [§ 43.5] was intended to lower the standard of care which [therapists] owe their patients, nor to permit them to avoid liability for breach of their professional and fiduciary responsibilities, or commit fraud"].)
In this context, there are "two requirements [to establish] such an independent duty of care: (1) a genuine professional relationship must exist between the plaintiff and the defendant, and (2) the wrongful conduct must have a meaningful connection to the purpose of that professional relationship." (Smith, supra, 19 Cal.App.4th at p. 270.)
Two cases are instructive here. First, in Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583 (Marlene F.), the mothers of two boys who were molested by a therapist treating both the mothers and their sons for intrafamily problems were permitted to maintain a cause of action for negligent infliction of emotional distress against the therapist. Their complaint alleged that they, as well as their children, were patients of the therapist, the therapist undertook to treat both mother and son for intrafamily difficulties by providing psychotherapy to both, and the mothers' discovery of the therapist's sexual misconduct caused them serious emotional distress, further disrupting their family relationship. (Id. at pp. 586-587.) Our Supreme Court concluded the therapist had a duty to the mothers because they were his patients. (Id. at p. 591.)
In contrast, in Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 151-152 (Schwarz), a father was denied recovery for emotional distress as the alleged victim of a therapist whom the father had retained to treat his son and who facilitated and concealed the mother's removal of their child to England. There, the child began therapy and the treating therapist "noted that [the son] suffered from an adjustment disorder, and there was considerable family stress due to the parents' bitter divorce." (Id. at p. 152.) The father agreed to pay for the therapy "with the hope of improving [the child's] relationship with his parents." (Ibid.) The father participated in some therapy sessions with the child and the child's therapist, but the father did not himself receive psychotherapy jointly with the son. (Ibid.)
The court concluded that only the child was the therapist's patient, even though the father had participated in counseling sessions with the therapist to try to improve the child's relationship with the parent. (Schwarz, supra, 226 Cal.App.3d at p. 162.) The court elaborated, "when 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 [citations].... Since [father] alleges nothing but negligence in the psychotherapeutic treatment of his son, he has failed to state a claim based on the negligent infliction of emotional distress." (Id. at p. 168; see also Klein v. Children's Hospital Medical Center (1996) 46 Cal.App.4th 889, 895 [declining to permit parents to recover for negligent infliction of emotional distress based upon the absence of a duty owed by the child's healthcare provider to the parents where their child was negligently misdiagnosed with a lethal form of cancer].)
2. No Independent Duty of Care
Here, Rupnow cannot establish that defendants owed him an independent duty of care because Rupnow did not have a "genuine professional relationship" with the defendants. (Smith, supra, 19 Cal.App.4th at p. 270.) Like the father in Schwarz, and unlike the mothers in Marlene F., the scope of defendants' engagement was to treat A.R. individually. Rupnow was never treated by the defendants.
Rupnow alleged that defendants "treated" him and A.R. However, these allegations cannot establish a duty of care for two reasons.
First, the exhibits to the SAC are inconsistent with the allegations. They demonstrate Kendall did not treat Rupnow, only A.R. The language of the stipulations agreeing to A.R.'s therapy, Rupnow's own contemporaneous communications with defendants, and Kendall's progress notes all refer to A.R.'s "individual" therapy and treatment and are devoid of any reference to Rupnow receiving therapy. Kendall referred to A.R. as the "client" or "patient," while she referred to Rupnow as "client's father." Because the exhibits conflict with Rupnow's allegations that Kendall "treated" him, we rely on the facts in the exhibits (Barnett v. Fireman's Fund Ins. Co., supra, 90 Cal.App.4th at pp. 504-505.)
Second, Rupnow's original complaint only alleged A.R.'s individual treatment and did not allege that Rupnow received any treatment or therapy from defendants. Rupnow did not explain these inconsistencies between the original complaint and the SAC. We, therefore, take judicial notice of the original allegations and disregard the new allegations because they are a sham. (Colapinto v. County of Riverside, supra, 230 Cal.App.3d at p. 151; see also Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946 ["any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations"].)
Similarly, Rupnow's allegations that he "joined" or "participated" in A.R.'s therapy sessions do not give rise to a duty on defendants' part. During the joint sessions, Rupnow never received any therapy from Kendall. Kendall's progress notes describing the sessions indicate that during and after, she would assist A.R. in processing her feelings about Rupnow and the sessions. Even after Rupnow joined the sessions, his contemporaneous communications with defendants continued to refer to the therapy as A.R.'s individual therapy and A.R., alone, as the person receiving treatment. As the Schwarz court concluded, participation in therapy sessions does not create an independent duty of care owed to the participant. (Schwarz, supra 226 Cal.App.3d at p. 162.)
Further, the fact that Rupnow paid for A.R.'s sessions does not impose a duty of care on defendants. (Schwarz, supra 226 Cal.App.3d at p. 168 [holding "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"].)
Finally, Rupnow does not allege that he was a patient of defendants, a fact present in Marlene F. where the court found an independent duty of care, and absent from Schwarz where the court found no such duty. To the contrary, Rupnow concedes he was not a patient, stating in his SAC that he was not required to allege he was a patient of defendants for them to owe him a duty of care. This argument lacks merit.
We, therefore, conclude the trial court properly sustained defendants' third demurrer for failure to state a cause of action for negligence, negligence per se, and negligent hiring, supervision, and retention. Rupnow cannot establish defendants owed him an independent duty of care.
Because Rupnow fails to meet the first requirement that he had a "genuine professional relationship" with defendants, we need not address the second requirement that "the wrongful conduct must have a meaningful connection to the purpose of that professional relationship." (Smith, supra, 19 Cal.App.4th at p. 270.) Accordingly, we do not address Rupnow's arguments on the topic.
C. No Independent Cause of Action for Negligence Per Se
Rupnow's negligence per se claim fails for an additional reason. Negligence per se is an evidentiary doctrine, not an independent cause of action.
Evidence Code section 669 codifies the evidentiary doctrine of "negligence per se." It provides for a presumption that a defendant has failed to exercise due care if four requirements are satisfied. (Evid. Code, § 669, subd. (a).) However, "the doctrine of negligence per se does not establish tort liability. Rather, it merely codifies the rule that a presumption of negligence arises from the violation of a statute that was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation. [Citation.] Even if the four requirements of Evidence Code section 669, subdivision (a), are satisfied, this alone does not entitle a plaintiff to a presumption of negligence in the absence of an underlying negligence action. [Citations.] [¶] Accordingly, to apply negligence per se is not to state an independent cause of action." (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286.)
Put another way, "'[t]he presumption of negligence created by Evidence Code section 669 concerns the standard of care, rather than the duty of care.' [Citation.] . . . '[A]n underlying claim of ordinary negligence must be viable before the presumption of negligence of Evidence Code section 669 can be employed.'" (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353.) Thus, it is evident that negligence per se is a legal theory, not a cause of action.
We determine Rupnow's SAC failed to state a duty of care owed by defendants to prevent the alleged harm to Rupnow. Therefore, the trial court did not err in sustaining defendants' demurrer to Rupnow's cause of action for negligence per se because he did not state an underlying negligence claim. (Leslie G. v. Perry &Associates (1996) 43 Cal.App.4th 472, 480 [elements of a negligence claim are (1) duty, (2) breach, (3) causation, and (4) damages].)
D. Forfeiture of Negligent, Hiring, Supervision, and Retention Claim
We also affirm the trial court's order sustaining the demurrer to Rupnow's negligent hiring, supervision, and retention claim for an additional reason.
Rupnow has failed to raise any alleged error as to his negligent hiring, retention, and supervision claim. We, therefore, conclude he has forfeited the argument. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 13451346, fn. 6 ["an appellant's failure to raise an issue in its opening brief [forfeits] it on appeal"]; see also Allen, supra, 234 Cal.App.4th at p. 52 [it is plaintiff's burden to demonstrate the demurrer was sustained erroneously].)
E. Leave to Amend
Regarding the trial court's order denying leave to amend, Rupnow waited until his reply brief to attempt to show that any amendment could cure the defects alleged in the SAC. He has forfeited the argument. (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1050 [where appellant fails to raise an argument "until its appellate reply brief," it "has forfeited the argument"].) Therefore, we conclude the trial court did not abuse its discretion in sustaining the demurrer without leave to amend. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44; Blank, supra, 39 Cal.3d at p. 318.)
We also note the court gave Rupnow two chances to cure the defects in the SAC, yet he failed to do so.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
WE CONCUR: CURREY, P.J., MORI, J.