2018-00235674-CU-FR

Nivano Physicians, Inc. vs. David Scribner

Nature of Proceeding: Hearing on Demurrer to First Amended Cross-Complaint

Filed By: Carroll, Bradley C.

*** If oral argument is requested, the parties must at the time oral argument is

requested notify the clerk and opposing counsel of the causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff/Cross-Defendant Nivano Physicians, Inc.’s (“Nivano”) demurrer to Defendant/Cross-Complainant David Scribner’s (“Scribner”) first amended cross-complaint (“FACC”) is ruled upon as follows.

Overview

In its complaint, Nivano alleges it is a large Independent Practice Association (“IPA”). In December 2016, Nivano hired Scribner to be general counsel to Nivano Care Medical Group (“NCMG”), a medical group association with the IPA. Nivano alleges that Scribner and co-defendant Jami Lopez conspired with other third parties to intentionally interfere with Nivano’s operations. As against Scribner, Nivano asserts causes of action for breach of fiduciary duty, intentional interference with contractual relations, conspiracy and conversion.

In the FACC, Scribner alleges that in June 2017, he entered into an employment agreement with Nivano wherein he would act as Nivano’s interim CEO and General Counsel from 6/12/2017 to 12/31/2018, with a period of review allowing Nivano’s board to decide whether to continued Scribner’s role. Scribner alleges that Nivano’s former CEO, Dr. Kondle wrongfully asserted that he was Nivano’s majority shareholder and, among other things, ousted Scribner as the Interim CEO and reinstalled himself as Nivano’s CEO. On 8/2/2017, Scribner was terminated as Nivano’s Interim CEO and General Counsel.

Scribner alleges that between June 2017 and August 2017 he experienced severe stomach pains, anxiety, and problems sleeping. These concerns were abated after he was terminated in August 2017. However, after Nivano filed suit against Scribner with its “negligent, defamatory statements made against Scribner” (FACC, ¶¶ 58, 73), he again experienced stomach pains, anxiety, and problems sleeping. He alleges that the direct cause of his physical and mental anguish is Nivano’s suit. (FACC, ¶¶ 58, 73),

Nivano demurs only the second and third causes of action for negligent and intentional infliction of emotional distress on the grounds that each is barred by the exclusivity provisions of workers’ compensation law, barred by the litigation privilege, and fails to state facts sufficient to constitute a cause of action.

Scribner opposes the demurrer, but fails to address the merits of Nivano’s argument that the causes of action are barred by the litigation privilege. The Court construes Scribner’s failure to address this argument as a concession on the merits. Thus, the demurrer is SUSTAINED with leave to amend. The Court grants leave to amend as this Nivano’s first challenge to the cross-complaint.

Scribner may file and serve a second amended cross-complaint (“SACC”) by no later than January 18, 2019, Response to be filed and served within 30 days thereafter, 35

days if the SACC is served by mail. (Although not required by any statute or rule of court, Scribner is requested to attach a copy of the instant minute order to the SACC to facilitate the filing of the pleading.)

The Court reminds both parties that pursuant to CCP 430.41(a), they are required to meet and confer “in person or by telephone” prior to the filing of the demurrer.

Scribner is reminded that the meet-and-confer requirements of Code of Civil Procedure §430.41 are not optional and s/he is required to participate in the meet-and-confer efforts “in person or by telephone” even if s/he disagrees with the challenge to the pleading.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.