Opinion
G057964
08-27-2020
E.N., Plaintiff and Respondent, v. C.N., Defendant and Appellant.
Bartlett Barrow and Brian P. Barrow for Defendant and Appellant. Law Offices of Russell G. Petti and Russell G. Petti for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-0891422) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed. Bartlett Barrow and Brian P. Barrow for Defendant and Appellant. Law Offices of Russell G. Petti and Russell G. Petti for Plaintiff and Respondent.
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INTRODUCTION
In order to recover for negligent transmission of a sexually transmitted disease (STD), a plaintiff spouse must prove the defendant spouse had actual or constructive knowledge he or she had the STD. In this appeal, we conclude that constructive knowledge was established. Such knowledge was triggered when the plaintiff spouse was diagnosed with an STD. Defendant spouse had many sexual partners during his marriage to plaintiff spouse, including after plaintiff spouse's diagnosis. Plaintiff spouse had no other sexual partners. We therefore affirm the judgment in favor of plaintiff spouse.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
C.N. (Husband) and E.N. (Wife) married in 2003. When they first began engaging in sexual relations, Wife was a virgin, and did not have sexual relations with any person other than Husband until after they separated. When Wife was pregnant with the couple's third child in 2009, she found e-mails between Husband and other women. Husband admitted receiving a massage and a "happy ending hand job" from another woman, but claimed he had otherwise been faithful to Wife during their marriage. Wife accepted Husband's explanation and the couple began counseling. As part of the counseling, Husband would take Wife by the hands, "look [her] in the eye and tell [her she] didn't have anything to worry about, and that he was always going to be faithful."
In October 2012, the results of Wife's pap smear showed no signs of human papilloma virus (HPV). In December 2014, Wife was diagnosed via a pap smear with HPV. Husband told Wife that he must have given her the disease, again blaming the "happy ending hand job" in 2009.
In February 2015, Wife tested negative for genital herpes. In February 2016, Husband complained about an irritation or rash on his genital area. About a month later, Wife was diagnosed with genital herpes. Later laboratory testing in August 2017 confirmed this diagnosis. After Wife was diagnosed in March 2016, Husband then went to his own doctor and tested positive for genital herpes. Husband told Wife that the 2009 sexual encounter also involved a "blow job." Wife and Husband continued living together and having sexual relations.
In August 2016, Wife found condoms and Viagra in Husband's truck; because they did not use condoms, Wife confronted Husband. Husband then confessed that he had been having sexual relations outside the marriage throughout the marriage, he was using the Ashley Madison Web site, he had solicited sexual partners through Craigslist, he had been dating his current girlfriend for six months, and he had had previous girlfriends. Husband immediately moved out of the family home. Wife filed a petition for dissolution of the marriage in October 2016. Wife first became sexually active with a man other than Husband sometime after February 2017.
Wife's doctor testified that while it was impossible to state with certainty when Wife first contracted the STDs, the most likely scenario was that she contracted HPV between October 2012 and December 2014 (the dates of her negative and positive pap smears).
In December 2016, Wife sued Husband for negligence, battery, fraud, and intentional and negligent infliction of emotional distress based on her claims that Husband gave her the STDs. Husband filed a cross-complaint against Wife for the same causes of action, claiming she had given him the STDs, as well as a cause of action for defamation. Before the bench trial, the parties submitted a joint list of issues in dispute.
After Wife rested her case, Husband brought a motion for judgment under Code of Civil Procedure section 631.8. At that time, Wife withdrew her claims for intentional and negligent infliction of emotional distress. The trial court denied the motion for judgment. After both parties rested their cases, Husband dismissed his cross-complaint.
The trial court's minute order addressed the issues in the joint list of issues in dispute and made the following factual findings:
We have omitted reference to the issues relating to Husband's dismissed claims.
(1) Husband had sexual relations with other women while married to Wife.
(2) Due to Husband's sexual relations with other women while married to Wife, Husband transmitted one or more STDs to Wife.
(3) Husband had no prior knowledge of carrying an STD before the onset of Wife's symptoms.
The issue presented to the trial court was "[w]hether [Husband] knew or should [have] known of the possibility that he was transmitting STDs to [Wife]." The court made the following finding: "There was no evidence [Husband] had antibody testing prior to [Wife]'s symptoms or that [Husband] had prior knowledge of his carrying an [STD]." The trial court's finding does not address the issue of constructive knowledge.
(4) Wife's damages due to contracting the STDs include the need for ongoing medication to control the symptoms of the STDs, and emotional distress in addition to that generally experienced during a marriage dissolution.
(5) Wife reasonably relied on Husband's assurances that he was not having sexual relations with other women.
(6) Wife's reliance caused her to have unprotected sexual relations with Husband, and led to her contracting one or more STDs.
(7) There was no evidence that Husband had knowledge that he had an STD before the trip to Seattle in February 2016.
The issue presented to the trial court was "[w]hether [Husband] gave [Wife] STDs either intentionally or with reckless disregard for whether he was transmitting STDs to her." The court made the following finding: "There was no testimony that [Husband] had knowledge of any [STD] that he may have had prior to the couple's trip to Seattle in [2016]." --------
(8) No evidence was presented that Wife had sexual relations with other men while married to Husband.
Based on its findings, the trial court found in favor of wife, and against Husband. The court directed Wife's counsel to prepare a formal judgment. Husband filed a motion for reconsideration of the trial court's ruling. The trial court treated the motion as a motion for a new trial and denied it, finding that "the entire record, including reasonable inferences, does not support a finding that [the court] clearly should have reached a different decision."
Judgment was entered in favor of Wife and against Husband in the total amount of $143,518: $100,000 for past and future emotional distress, and $43,518 for past medical treatment plus interest, and future medical treatment.
DISCUSSION
We review the trial court's factual findings for substantial evidence. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581-582.) "First, we accept all evidence supporting the trial court's [judgment]. Second, we completely disregard contrary evidence. Third, we draw all reasonable inferences to affirm the trial court. These three pillars support the lintel: we do not reweigh the evidence." (Id. at p. 581.) We view the evidence in the light most favorable to the prevailing party, give it the benefit of every reasonable inference, and resolve all conflicts in favor of the judgment. (Id. at p. 582.) The trial court is the "'sole judge'" of witness credibility, and may believe or disbelieve any witness if there is a rational ground for doing so. (Ibid.)
Neither party requested a statement of decision from the trial court; the doctrine of implied findings requires that we infer the trial court made all factual findings necessary to support its judgment. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58-59.)
The trial court did not specify whether its finding for Wife was on one or more of her remaining causes of action—negligence, battery, or fraud. To prevail on this appeal, Husband must prove there was not substantial evidence to support a finding for Wife on any of those claims.
I.
Evidence of Husband's Actual or Constructive Knowledge He Had an STD
"A person who knows or should know he or she has herpes and fails to disclose that fact, or misrepresents that he or she is disease free, may be liable for transmitting the disease to a sexual partner. [Citations.] Depending upon the facts giving rise to the transmission of the disease, available tort theories may include negligence, battery, intentional infliction of emotional distress, and fraud." (Behr v. Redmond (2011) 193 Cal.App.4th 517, 525.)
"In this case, we conclude that the tort of negligent transmission of HIV does not depend solely on actual knowledge of HIV infection and would extend at least to those situations where the actor, under the totality of the circumstances, has reason to know of the infection. Under the reason-to-know standard, 'the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.' [Citation.] In other words, 'the actor has knowledge of facts from which a reasonable man of ordinary intelligence or one of the superior intelligence of the actor would either infer the existence of the fact in question or would regard its existence as so highly probable that his conduct would be predicated upon the assumption that the fact did exist.'" (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1191.)
For purposes of our analysis there are two key dates: December 2014, when Wife was diagnosed with HPV, and March 2016, when Wife was diagnosed with herpes. After Wife's first diagnosis with an STD, Husband had reason to know that he had transmitted the STD to Wife as a result of his extramarital affairs. While Husband relies on his medical expert witness's testimony that Wife could have contracted the STD from a vaginal ultrasound probe or autoinoculation, a reasonable person of ordinary intelligence who was aware that he was engaging in sexual relations outside his marriage and that his wife had had no sexual partners other than him would have inferred that he was the cause of Wife's infection, even if he himself showed no symptoms of the STD. (Indeed, at the time Wife was diagnosed with HPV, Husband admitted to Wife he was the source of the infection, although he blamed it on a 2009 "happy ending hand job.")
So, as of December 2014 at the latest, Husband had constructive notice that he had an STD that could be transmitted to Wife. Yet Husband continued to deceive Wife regarding the likely source of the infection, and failed to take necessary measures to prevent the transmission of further STDs to Wife. Under John B. v. Superior Court, supra, 38 Cal.4th at page 1191, Husband can be liable at least for the negligent transmission of a second STD to Wife in March 2016.
Husband cites out-of-state cases in which the courts have found that, without more, engaging in high-risk sexual behavior does not support a cause of action for negligent transmission of an STD. (Doe v. Johnson (W.D.Mich. 1993) 817 F.Supp. 1382, 1393 [noting that the defendant would have a duty to disclose he or she might have an STD if a prior sex partner had been diagnosed with such]; Endres v. Endres (2008) 185 Vt. 63, 71 ; Kohl v. Kohl (Fla. 2014) 149 So.3d 127, 135; Meany v. Meany (La. 1994) 639 So.2d 229, 235-236 [reinstating jury's verdict that the husband negligently transmitted STDs to the wife; evidence supporting jury's conclusion that the husband should have known he was infected included his multiple sex partners during a separation; the wife's symptoms first appeared shortly after they reconciled; and while the husband had no outward symptoms or signs of infection he had sought medical attention which did not result in a diagnosis]; M.M.D. v. B.L.G. (Minn. 1991) 467 N.W.2d 645, 646 [affirming trial court's judgment in favor of girlfriend based on negligent transmission of STD where boyfriend had a history of genital sores and boyfriend's doctor had urged him to get a herpes culture].) Because this is not a case in which there was no evidence supporting the negligent transmission cause of action other than one party's sexual behavior, these cases do not change our analysis.
II.
Causation
Husband argues that Wife failed to prove causation because there is no conclusive evidence of which party transmitted the STDs to the other and when the transmissions occurred. To the contrary, the evidence before the trial court was more than sufficient to support the court's finding of causation.
Wife testified she had no sexual partners other than Husband until after she had been diagnosed with both STDs, and that Husband ultimately admitted to her he had had numerous sexual partners throughout their marriage, some of whom had been found through Ashley Madison and Craigslist. Husband's claim that Wife might have had other sexual partners during their marriage was completely speculative and devoid of evidentiary support. Although Husband's medical expert witness testified Wife could have contracted the STDs other than through sexual contact with Husband (such as by a vaginal ultrasound probe or autoinoculation), there was substantial evidence that Wife was infected due to sexual contact with Husband, particularly in light of his admitted sexual dalliances. The trial court's finding that Husband transmitted one or more STDs to Wife due to his sexual relations with other women is supported by the evidence.
Further, as to the time at which Wife became infected, Husband argues that Wife could have been infected years earlier, with the diseases remaining dormant. Wife's negative pap smear and negative herpes test, followed by a positive pap smear and a positive diagnosis of herpes, provide a clear timeframe during which it was most likely Wife contracted the STDs. Again, the trial court's finding of causation is supported by substantial evidence.
III.
Intent or Reckless Disregard
The trial court found the evidence did not support a finding that Husband gave the STDs to Wife intentionally or with reckless disregard. In light of our conclusions that there was substantial evidence of duty, breach, and causation supporting the trial court's findings on the negligence cause of action, we need not address whether the evidence would support findings on the fraud or battery causes of action.
IV.
Emotional Distress Damages
Husband also argues that the trial court erred by awarding emotional distress damages to Wife because Wife did not pursue her causes of action for intentional and negligent infliction of emotional distress. "Where the cause of action for negligence is founded on the invasion of a legally protected interest other than emotional tranquility, whether recovery should be had for damages for consequential emotional distress is open to inquiry. . . . '[M]ental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of, and in this connection mental suffering includes nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain.' . . . [¶] . . . [¶] . . . The case law reveals a diversity of circumstances in which recovery for emotional distress may be had. They are loosely linked in the sense that in each it could be said that a particular form of mental suffering naturally ensued from the acts constituting the invasion of another kind of protected interest." (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 7-8, overruled in part on other grounds, Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037.)
In an appropriate case, emotional distress damages are a remedy for causes of action for negligence, battery, or fraud. (See State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338 [if elements of a tort such as battery are established, "damages may be given for mental suffering naturally ensuing from the acts complained of"]; Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 800 [emotional distress damages allowed when "negligence is of a type which will cause highly unusual as well as predictable emotional distress"]; Sprague v. Frank J. Sanders Lincoln Mercury, Inc. (1981) 120 Cal.App.3d 412, 417 [emotional distress damages available in cases of fraud not involving property].) Under any of Wife's theories of recovery, emotional distress damages would be appropriate based on the gravamen of the case—that Husband engaged in sexual relations outside the marriage, by which Wife became infected with incurable STDs that may increase her risk of cancer and will likely require medical care for the rest of her life.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.