Case Name: Linda Morris v. Robert Miller, PhD.
Case No.: 18CV324194

IV. Background

This case brought by Linda Morris (“Plaintiff”) against Robert Miller (“Defendant”) arises from Defendant’s alleged misconduct in the course of providing mental health treatment to Plaintiff.

According to the allegations of the Complaint, Defendant is a licensed psychologist. Plaintiff received mental health treatment from Defendant for about fifteen years. During that treatment Defendant was negligent in his professional conduct. This negligence included, among other things: (1) rendering substandard treatment; (2) treating Plaintiff based on his own personal needs and not according to the problems she presented; (3) fostering a dependency relationship in a patient who needed help with individualization; and (4) inappropriate and excessive self-disclosure.

In addition, Defendant engaged in outrageous behavior by sexualizing the psychologist-patient relationship despite his knowledge that Plaintiff had suffered sexual abuse. Specifically, Defendant shared explicit details about his first sexual experience. He also forced Plaintiff to recount a past sexual experience. Additionally, Defendant allegedly billed Plaintiff’s insurer for psychotherapy sessions that Defendant did not render.

Based on the foregoing, Plaintiff alleges causes of action for (1) professional negligence; and (2) intentional infliction of emotional distress (“IIED”) against Defendant. Currently before the Court is Defendant’s demurrer to the second cause of action on the ground of failure to state sufficient facts. (Code Civ. Proc., § 430.10, subd. (e).)

V. Discussion

The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran).)

Defendant argues that Plaintiff has not plead facts supporting extreme and outrageous conduct, or intent to cause emotional distress or reckless disregard of the possibility of such distress.

A. Extreme and Outrageous Conduct

Extreme and outrageous conduct is a necessary element of a cause of action for IIED. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051 (Hughes) [setting forth elements of IIED claim]; accord Wong v. Jing (2010) 189 Cal.App.4th 1354, 1376 (Wong). Conduct is not outrageous simply because it is tortious or intended to cause distress. Conduct is extreme and outrageous “when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community. ’ ” ’ [Citation.]” (Hughes, supra, 46 Cal.4th at pp. 1050–1051.) Mere profanity, obscenity, or abuse is not sufficient. (See Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.) “Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” ’ ” (Cochran, supra, 65 Cal.App.4th at p. 494.) Whether conduct is outrageous is usually a question of fact. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045.)

Plaintiff alleges that Defendant told her he was a “late bloomer” and that he “did not like taking anti-depressant medication because it made it hard for him to ‘cum’.” (Complaint, ¶ 17(b)(i-ii.) Defendant also stated “I just wanted to cum so bad. I was like, God let me cum. But I couldn’t – it was the anti-depressants[.]” (Complaint, ¶ 17(b)(iii).) Finally, Plaintiff alleges Defendant forced her to discuss her first sexual experience with her then fiancé despite her request not to do so.

Defendant argues these allegations are less extreme than the facts found not outrageous in Hughes. There, the trustee of a decedent’s estate told the decedent’s former wife “I’ll get you on your knees eventually. I’m going to fuck you one way or another.” (Hughes, supra, 46 Cal.4th at p. 1049.) The Court viewed this statement as a threat not of physical violence but “of financial retaliation: that he would use his power as a trustee” against her. (Ibid.) The court ruled based on the context of an ongoing legal battle this comment was not outrageous. (Id. at p. 977.)

The alleged statements by Defendant, while obscene, were not threatening, and in that respect less extreme than the statements in Hughes. Moreover, mere profanity or obscenity in diction or subject matter is insufficient to render a statement extreme and outrageous.

Thus, Defendant’s statements regarding his own sexual past were not, as a matter of law, extreme and outrageous.

The Complaint also accuses Defendant of “forcing [Plaintiff] to share, in excruciating detail, her first sexual experience with her then fiancé … .” (Complaint, ¶ 17(c).) Defendant asserts that this was not outrageous in the context of long-term therapy where personal topics of a sexual nature were discussed. This argument is not supported by the Complaint; it does not indicate whether personal topics of a sexual nature were ever previously discussed.

In addition, Defendant mischaracterizes the allegations as “discussion of sexual history with her fiancé” and insists that “such discussions should have been expected[.]” (P&As ISO Dem., p.5:14-16.) Plaintiff does not allege the parties engaged in a discussion of sexual history, or that Defendant asked about her sexual history. She alleges the involuntary retelling, in detail, of her first sexual experience with her fiancé. The Complaint does not allege how Defendant forced Plaintiff to retell such a personal experience, but the Court must treat this factual allegation as true at this stage. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Moreover, “[b]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.’ ” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.) Here, Plaintiff accuses Defendant of sexualizing a treatment relationship, and using his position as her psychotherapist to extract personal information. The relationship between the parties weighs in favor of this behavior being outrageous.

In reply, Plaintiff argues that this conduct is not outrageous, citing Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217. There, “a 48-year-old medical doctor [initiated] and conduct[ed] an extended sexual relationship with a minor while encouraging her to break the law by providing her with alcohol and controlled substances and paying her to purchase such substances for him.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1226. (Angie M.).) The court stated that reasonable minds could differ over whether this is outrageous, and that such facts survived demurrer. (Ibid.)

The allegations in Angie M. describe conduct arguably more extreme and outrageous than the allegations here. However, the court in Angie M. did not state that no lesser conduct would qualify as outrageous. As the Court noted above, this determination is somewhat subjective. Here, the Court cannot say, as a matter of law, that abusing the position of psychotherapist to force patients to reveal personal sexual experiences is not outrageous.

Therefore, Defendant’s argument regarding extreme and outrageous conduct is not well-taken.

B. Intent

Defendant asserts the sole allegation regarding intent is a legal conclusion, and should not be accepted as a fact for purposes of demurrer. In reply, Plaintiff similiarly argues that more detail regarding intent is required. Defendant cites several cases stating this general standard, including Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797. (See Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 806 [when ruling on demurrer court must assume truth of factual allegations, but need not assume truth of conclusions].) However, none of these cases apply this principle to a similar issue of intent.

In considering a demurrer the Court must accept “all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano, supra, 5 Cal.3d at p. 591.) To allege IIED, a plaintiff must allege “intention to cause or reckless disregard of the probability of causing emotional distress[.]” (Wong supra, 189 Cal.App.4th at p. 1376.)

Defendant does not cite a specific case addressing the level of detail required when pleading the intent element of IIED; nor describing an allegation of intent to cause severe emotional distress, without more, as either a proper factual allegation or an improper conclusion.

With that said, courts discussing other intentional torts, such as fraud, have required only general allegations regarding intent. (See Wennerholm v. Stanford University School of Medicine (1941) 113 P.2d 736, 740 [intent may be averred generally], vacated on other grounds by Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713, 716 [confirming that an allegation that manufacturers knew a drug was inherently dangerous to human life was sufficient even to allege intent where intent could be reasonably inferred from the general circumstances]; Gervase v. Super. Ct. (1995) 31 Cal.App.4th 1218, 1244, fn.16 [federal rule of pleading, which expressly allows knowledge and intent to be pleaded generally, “not materially different from our state rule of pleading fraud”]; see also Lewis v. Beeks (1948) 88 Cal.App.2d 511, 521 [in a complaint sounding in fraud, allegations as to matters which are peculiarly within the knowledge of the defendant may be made on information and belief; less certainty is required in pleading such facts than in pleading facts presumptively or actually within the knowledge of the plaintiff].) While this is not a fraud case, the argument being presented is in essence that greater specificity is required to plead the element of intent. Fraud cases show intent may be alleged generally in comparison to other allegations, in part because it is particularly within the knowledge of the defendant.

Here, Plaintiff alleges “all the acts of [Defendant] were done and committed with the intent to cause [Plaintiff] severe emotional distress … .” (Complaint, ¶ 19.)

While this is minimal, it is sufficient to defeat Defendant’s argument regarding intent.

C. Conclusion

Accordingly, the demurrer to the second cause of action for IIED is OVERRULED.