Ruling
KARIN FRIEDMAN VS ANTHONY CAVUOTI, ET AL.
Jul 26, 2024 |
24TRCV00170
Case Number:
24TRCV00170
Hearing Date:
July 26, 2024
Dept:
8
Tentative Ruling
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HEARING DATE:
July 26, 2024
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CASE NUMBER:
24TRCV00170
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CASE NAME:
Karin Friedman v. Anthony Cavuoti, LMFT, et al.
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MOVING PARTY:
Defendant, Carelon Behavioral Health of California, Inc.
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RESPONDING PARTY:
Plaintiff, Karin Friedman
TRIAL DATE:
Not Set.
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MOTION:¿
(1) Demurrer to the Second Amended Complaint, 3
rd
cause of action for negligent hiring
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Tentative Rulings:
(1)
SUSTAINED with twenty (20) days leave to amend.
I. BACKGROUND
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A. Factual
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On January 23, 2024, Plaintiff, Karin Friedman (Plaintiff) filed a Complaint against Defendants, Anthony Cavuoti, LMFT, Carellon Behavioral Health of CA, Inc., and DOES 1 through 100. The Complaint alleges causes of action for: (1) Professional Negligence; (2) Intentional Infliction of Emotional Distress; and (3) Negligent Hiring.
On March 5, 2024, Plaintiff filed a First Amended Complaint (FAC) alleging causes of action for: (1) Professional Negligence; (2) Intentional Infliction of Emotional Distress; and (3) Negligent Selection of an Independent Contractor. On June 14, 2024, Plaintiff filed a Second Amended Complaint (SAC) alleging causes of action for: (1) Professional Negligence; (2) Intentional Infliction of Emotional Distress; and (3) Negligent Selection of an Independent Contractor.
The SAC is based on Plaintiffs allegation that on August 18, 2023, Plaintiff called Defendant, Carelon and spoke to a therapist regarding issues of depression and anxiety for forty-five minutes. (SAC, ¶ 10.) Plaintiff contends that Carelon then emailed her on August 21, 2023 the information of two therapists, both of whom said they were a good match for her, and both of whom were men. (SAC, ¶ 10.) Plaintiff notes that she called back and asked for female therapists, and they said that none were available in her area. (SAC, ¶ 10.) Thus, Plaintiff indicates that she contacted Defendant Cavuoti to set up an initial meeting because he was the closest therapist to her location. (SAC, ¶ 10.) Plaintiff notes that a few days after, she spoke with Defendant Cavuoti to explain to him that she requires consistent therapy due to her psychological disorder of depression and anxiety (among other issues). (SAC, ¶ 10.) Plaintiff further notes that she told him she was adopted and suffered abuse from her mother. (SAC, ¶ 10.) After informing him of this, Plaintiff asserts that Defendant Cavuoti stated he was also adopted, was the same age as her, and stated that they had a lot in common, and that he could not wait to meet her. (SAC, ¶ 10.)
Plaintiff further alleges that on August 30, 2023, she had her first appointment with Defendant Cavuoti. During this initial appointment Plaintiff asserts that Defendant Cavuoti spoke with her about his previous weekend in Vegas and brought the conversation back to himself when he informed Plaintiff about his own history of abuse. (SAC, ¶ 12.) Plaintiff contends that she was upset by this information as she was also abused as a child. (SAC, ¶ 12.) Plaintiff notes that the conversation continuously came back to Defendant Cavuoti, and she did not get a lot of time to speak with him about her own issues. (SAC, ¶ 14.) Moreover, Plaintiff contends that Defendant Cavuoti abruptly and stated, our time is over. (SAC, ¶ 14.) Plaintiff notes that he then opened the door and said, I know I am not supposed to do this, and proceeded to hug her while pressing her close to him while making audible, strange noises which sounded like oh, oh. (SAC, ¶ 14.)
Plaintiff alleges that after she left, she had her partner pull over on the side of the road and she vomited. (SAC, ¶ 15.) As soon as she got home, Plaintiff notes she took a shower and called her psychiatrists office and told him what had happened. (SAC, ¶ 15.) Plaintiff also notes that she called Defendant Carelon and told them what happened. (SAC, ¶ 15.) Plaintiff contends that Defendant Carelon apologized profusely and said they would send her more referrals, to which they subsequently sent five (5) women. (SAC, ¶ 15.) Plaintiff notes that she proceeded to speak with her psychiatrist weekly due to the incident, who prescribed her mediation to address her nerves in the wake of the incident. (SAC, ¶ 16.) Subsequently, Plaintiff notes that she unintentionally left her files at Defendant Cavuotis office, and he forced her into further communications to retrieve her paperwork, which caused her additional stress, anxiety, and sleeplessness. (SAC, ¶ 16.)
Defendant, Carelon Behavioral Health of California, Inc. (Carelon) now files a demurrer to the SAC.
B. Procedural¿
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On June 14, 2024, Carelon filed a demurrer to Plaintiffs SAC. On July 15, 2024, Plaintiff filed an opposition brief. On July 23, 2024, Carelon filed a reply brief.
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II. ANALYSIS
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A.
Legal Standard
Leave to amend is permitted under the Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is so strong that it is a rare case in which denial of leave to amend can be justified. . .. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only where no prejudice is shown to the adverse party . . .. [citation]. A different result is indicated where inexcusable delay and probable prejudice to the opposing party is shown. [Citation]. (
Magpali v. Farmers Group (
1996) 48 Cal.App.4th 471, 487.)
A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).)
B.
Discussion
Defendant Carelon demurs to Plaintiffs SAC on the grounds that it argues Plaintiffs third cause of action for Negligent Selection of An Independent Contractor fails to state sufficient facts to constitute a cause of action.
i.
Meet and Confer Requirement
The declaration of Kelsey A. Hill is offered in support of Carelons counsels compliance with Code of Civil Procedure section 430.41. Hill declares that on April 2, 2024, she sent Plaintiffs counsel an email identifying the defects in the FAC and asking to meet and confer. (Declaration of Kelsey A. Hill (Hill Decl.), ¶ 2.) On April 10, 2024, Hill indicates that she and her colleague, Junga Kim, met and conferred with Plaintiffs counsel and that subsequently, the FAC was amended.
On June 6, 2024, Hill indicates that she sent Plaintiffs counsel an email identifying and outlining the legal arguments and bases of Carelons anticipated demurrer to Plaintiffs SAC and asking Hill to meet and confer. (Hill Decl., ¶ 7.) Hill asserts that after receiving no response to her initial email, she sent a follow-up email to Plaintiffs counsel on June 10, 2024, after which Hill and Plaintiffs counsel exchanged emails regarding the anticipated demurrer. (Hill Decl., ¶ 9.) Hill further notes that in her June 13, 2024 email, she explained that Carelons demurrer to Plaintiffs SAC is based on the same grounds as previously articulated with respect to the FAC. (Hill Decl., ¶ 10.) However, despite efforts, Hill notes that the parties were unable to reach an agreement resolving the objections. (Hill Decl., ¶ 11.)
Thus, this Court finds that the parties have met and conferred in good faith prior to filing the demurrer, and the meet and confer requirements have been met.
ii.
Negligent Selection of an Independent Contractor
Carelon argues that Plaintiffs third cause of action for Negligent Selection of an Independent Contractor fails as a matter of law. Carelon argues that Plaintiffs cause of action is defective for three reasons: (1) first, Plaintiff fails to plead that
at the time of hiring or prior to
,
Carelon knew or should have known Defendant Cavuoti presented an undue risk of the particular harm to which Plaintiff was allegedly exposed; (2) Plaintiff fails to allege that Carelon owed her any duty of care in selecting (and recommending and referring) Cavuoti as a potential therapist; and (3) even if Carelon owed a duty of care to Plaintiff, she has not alleged that Carelon breached that duty by selecting Defendant Cavuoti as a participating provide, or that any such breach was a substantial factor in causing her injury.
Generally, a hirer of an independent contractor is not liable for the negligence of the contractor or its employees. (
American States Ins. Co. v. Progressive Casualty Ins. Co
. (2009) 180 Cal.App.4th 18, 28.) However, [o]ver time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that the rule is now primarily important as a preamble to the catalog of its exceptions. (
Privette v. Superior Court
(1993) 5 Cal.4th 689, 693.) One of these exceptions is referred to as the peculiar risk doctrine. (
Ibid
.)
California recognizes a cause of action that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. (
Doe v. Capital Cities
(1996) 50 Cal.App.4th 1038, 1054, citing
Evan F. v. Hughson United Methodist Church
(1992) 8 Cal.App.4th 828, 836.)
The basis for such a claim is that the employer had actual or constructive knowledge that hiring the employee created a particular risk or hazard and that particular harm materializes. (
Capital Cities
,
supra
, at p. 1054;
Evan F
.,
supra,
at pp. 836-837.)
In
Capital Cities
, the Second District determined that the demurrer to the plaintiffs pleading was properly sustained because of a lack of specific factual allegations that the casting director, who allegedly drugged, beat, and then facilitated the gang rape of the aspiring actor, was previously known by the employer to act in such a fashion.
Plaintiff there had only alleged that the employer knew that the casting director used his position to gain sexual favors, that the director personally used drugs, and that the use of a casting couch is common in the entertainment industry.
From
Capital Cities
the Court finds that when a claim such as negligent hiring or negligent selection of an independent contractor is asserted, greater specificity in pleading the prior knowledge of the employer or hirer is required.
In the Second Districts analysis of the demurrer there, the panel stated: knowledge that [casting director] Marshall used his position of authority to extract or to coerce sexual favors is not knowledge that he would first drug and then attack a potential employee.
(
Capital Cities, supra,
50 Cal.App.4th at pp. 10541055.)
Applying that reasoning here, plaintiff would need to allege that Carelon knew or should have known from some prior incident, screening process, a prior claim, or otherwise that Cavuoti would discuss his own personal history of childhood abuse with a new patient, that he would make veiled romantic overtures to female therapy patients, and that he would hug, embrace, or make inappropriate physical contact with therapy patients.
No allegatison of those sort are contained in the SAC.
Carelon cites to CACI No. 426 (Negligent Hiring, Supervision, or Retention of Employee), noting that in order to sufficiently state a claim for negligent selection of an independent contractor, a plaintiff must show among other things that the hiring defendant knew or should have known that the contractor was unfit or incompetent and that the contractors unfitness or incompetence created a particular risk of harm to other people.
(
See
CACI No. 426 element 2.)
While Plaintiff has alleged each element of CACI 426 in conclusory fashion, more factual detail is required. For example, was Carelon aware of inappropriate behavior of Defendant Cavuoti prior to hiring him? Did other patients of Defendant Cavuoti make similar complaints to Defendant Carelon prior to him being recommended as a therapist to Plaintiff?
Without more detailed facts and allegations, Plaintiff may not maintain a cause of action for Negligent Selection of an Independent Contractor. As such, this Court SUSTAINS demurrer with leave to amend.
III. CONCLUSION
For the foregoing reasons, Defendant Carelons demurrer is SUSTAINED with twenty (20) days leave to amend.
Carelon is ordered to give notice.