Opinion
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change for tracking pending review and disposition by the Supreme Court.]
Superior Court of Los Angeles County, No. YC020626, Stephen E. O'Neil, Judge. [Copyrighted Material Omitted] COUNSEL
Trope and Trope and Thomas Paine Dunlap for Plaintiff and Appellant.
B. Bruce Kittrell and Richard A. Lense for Defendant and Respondent.
OPINION
MASTERSON, J.
While she was married to Steve, Wendy gave birth to a daughter, Stephanie. During dissolution proceedings, Wendy challenged Steve's paternity by seeking to introduce blood test results showing that Steve was not Stephanie's biological father. Wendy's challenge failed, and the family court declared Steve to be Stephanie's legal father.
Steve then filed this civil action against Wendy, seeking to recover for the emotional distress he suffered in response to Wendy's effort to terminate his parental relationship with Stephanie. The trial court sustained Wendy's demurrer to the complaint without leave to amend, concluding that the action was barred by public policy considerations. We agree and affirm. Background
The operative complaint alleged as follows. Steve and Wendy were married on January 1, 1990. Stephanie was born on November 25, 1990. The day after Stephanie's birth, Wendy learned that H.T., not Steve, was Stephanie's biological father. Wendy had had a consensual sexual relationship with H.T. before and during her marriage to Steve. Wendy did not tell Steve that Stephanie was not his child. Steve therefore treated Stephanie as his natural daughter and developed an extremely close paternal bond with her.
The trial court sustained Wendy's demurrer without leave to amend, and Steve's appeal is from the order of dismissal thereafter entered. Since the parties agreed that, but for the public policy issue, Steve's complaint is sufficient to allege a cause of action for intentional infliction of emotional distress, the only question before us is the public policy issue.
Steve and Wendy separated on May 31, 1993. Steve filed a petition for dissolution in which he sought sole legal and physical custody of Stephanie, who he alleged was his child. Wendy's response alleged that Stephanie was not Steve's child.
In conjunction with the parties' separation, Wendy devised a plan to interfere with Steve's relationship with Stephanie. As part of that scheme, in June 1993, Wendy told Steve that Stephanie was not his daughter but was conceived when Wendy was raped. Wendy thereby induced Steve to have a blood test, knowing that the test would prove that he was not Stephanie's biological father. In fact, that is what the test showed.
Of course, the rape story was false. Steve first learned that H.T. was Stephanie's biological father during Wendy's deposition in the dissolution action.
In Self, the Supreme Court discussed at some length the social order upon which the now-rejected concept of interspousal immunity had been based and concluded that times have changed. (Self v. Self, supra, 58 Cal.2d at pp. 684-689.) Quoting Prosser on Torts (2d ed. 1955) page 674, Self notes that even after a wife was permitted to sue her husband for negligence committed against her property, she could not sue him for a personal tort: " 'This [was] on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy-and this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him.' " (Self v. Self, supra, 58 Cal.2d at p. 685.) Although the Supreme Court thinks these views are outmoded, it appears they are alive and well in the chambers adjacent to mine.
In lying to Steve about being raped, inducing him to take a blood test, and concealing from him that he was not Stephanie's biological father, Wendy acted deliberately and intentionally so as to cause Steve severe emotional distress. Wendy hoped to interfere with and sever Steve's bond with Stephanie.
In furtherance of her scheme, Wendy attempted to introduce the blood test results in the dissolution proceeding in order to challenge Steve's paternity. However, the family court found that Steve was entitled to the conclusive presumption of paternity (Fam. Code, section 7540) and ruled that Steve was Stephanie's legal father. That determination was affirmed on appeal. (In re the Marriage of Steve H. and Wendy S., supra, B087376.)
In July 1994, Steve filed this action against Wendy, alleging causes of action for fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress. By way of a second amended complaint filed in May 1996, Steve alleged only two causes of action, for abuse of process and intentional infliction. Wendy demurred to the amended pleading. The trial court sustained the demurrer without leave to amend and dismissed the action. Steve filed a timely notice of appeal.
On appeal, Steve does not challenge the trial court's dismissal of the claim for abuse of process. He seeks to reinstate only the cause of action for intentional infliction of emotional distress.
Discussion
In reviewing the ruling on a demurrer, "we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.... We also consider matters which may be judicially noticed.' ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.... When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.... And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.... The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, citations omitted.)
"The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.... [¶] ... [¶] Conduct is extreme and outrageous when it ' " 'exceeds all bounds [of decency] usually tolerated by a decent society, [and is] of a nature which is especially calculated to cause, and does cause, mental distress....' " ' ... Liability 'does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' " (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1120, 1122 [252 Cal.Rptr. 122, 762 P.2d 46], citations omitted, bracketed material added in Molko.)
Wendy does not dispute that Steve has adequately pleaded a cause of action for intentional infliction of emotional distress. Instead, she contends that such a claim is barred in this case by public policy. We agree.
"It is ... established under California law that one can sue a spouse for an intentional tort ... or for a negligent tort...." (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268 [258 Cal.Rptr. 787], citations omitted.) "It is, of course, fundamental in the law of torts that any person proximately injured by the act of another, whether that act be willful or negligent, should, in the absence of ... compelling reasons of public policy, be compensated." (Klein v. Klein (1962) 58 Cal.2d 692, 694-695 [26 Cal.Rptr. 102, 376 P.2d 70], italics added.)
Although interspousal immunity has long since been abandoned in California (see Self v. Self (1962) 58 Cal.2d 683, 684 [26 Cal.Rptr. 97, 376 P.2d 65]; Klein v. Klein, supra, 58 Cal.2d at pp. 692-693), it does not follow that spouses may sue each other for every intentional act that causes emotional injury. "A tort is 'a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages. It does not lie within the power of any judicial system, however, to remedy all human wrongs. There are many wrongs which in themselves are flagrant. For instance, such wrongs as betrayal, brutal words, and heartless disregard of the feelings of others are beyond any effective legal remedy and any practical administration of law.... To attempt to correct such wrongs or give relief from their effects 'may do more social damage than if the law leaves them alone.' ..." (Nagy v. Nagy, supra, 210 Cal.App.3d at p. 1269.)
Accordingly, in Nagy v. Nagy, supra, 210 Cal.App.3d 1262, Division Seven of this court upheld the dismissal of the plaintiff's fraud claim against his former wife. There, the wife had become pregnant during the parties' marriage, and she had told the plaintiff that he was the child's father. In fact, he was not. In reliance on the wife's misrepresentation, the plaintiff developed a close relationship with the child and treated him as a son. During dissolution proceedings, the plaintiff learned for the first time that he was not the child's biological father. In upholding the trial court's dismissal of the plaintiff's fraud claim, Division Seven of this court stated: "We conclude that under the facts of this case, an action for fraud would be contrary to public policy.... In our opinion, allowing a nonbiological parent to recover damages for developing a close relationship with a child misrepresented to be his and performing parental acts is not a 'damage' which should be compensable under the law. Although we do not condone [the wife's] misrepresentations, they are similar to a 'betrayal' for which the law wisely should not provide a remedy." (Id. at pp. 1269-1270, citation omitted.)
In Richard P. v. Superior Court (1988) 202 Cal.App.3d 1089 [249 Cal.Rptr. 246], the Court of Appeal rejected another claim of interspousal emotional distress. In that case, Linda, while married to Gerald, gave birth to two children, both fathered by Richard. When Linda and Gerald separated, they and Richard entered into a stipulated judgment giving joint legal custody of the children to Linda and Richard, physical custody to Linda, and visitation rights to both Richard and Gerald. Richard was obligated to support the children. Gerald relinquished any rights he might otherwise have had as the natural or presumptive father of the children. After entering into the stipulated judgment, Gerald sued Richard for fraud and intentional infliction of emotional distress, alleging that, as a result of the willful concealment of Richard's paternity, Gerald had become emotionally attached to the children. (Id. at pp. 1091-1092.) The trial court overruled a demurrer to the complaint. Division Two of the First District issued a peremptory writ of mandate directing that the demurrer be sustained. As the Court of Appeal explained: "We conclude here that any wrong which has occurred as a result of Richard's actions is not one which can be redressed in a tort action. We do not doubt that this lawsuit emanated from an unhappy situation in which [Gerald] suffered grief. We feel, however, that the innocent children here may suffer significant harm from having their family involved in litigation such as this and that this is exactly the type of lawsuit which, if allowed to proceed, might result in more social damage than will occur if the courts decline to intervene. 'We do not believe that the law should provide a basis for such interfamilial warfare.' ... [¶] ... [¶] ... For a man married to the mother of children at the time of their conception to be allowed to bring a tort action such as this against the true father of the children could ... 'seldom, if ever, result in benefit to a child.' " (202 Cal.App.3d at pp. 1094-1096, citation omitted.)
Similar public policy considerations justified the trial court's dismissal of the intentional infliction claim here. First, to the extent Steve seeks to recover damages for the creation of a close and loving relationship with Stephanie, his claim is clearly foreclosed by Nagy v. Nagy, supra, 210 Cal.App.3d 1262. (See id. at pp. 1269-1270 ["allowing a nonbiological parent to recover damages for developing a close relationship with a child misrepresented to be his and performing parental acts is not a 'damage' which should be compensable under the law"].)
Second, we recognize that the principal basis for Steve's claim is Wendy's attempt to destroy his father-child relationship with Stephanie, while the plaintiffs in Nagy and Richard P. sought damages for the creation of a parental relationship under false pretenses. Nonetheless, this case poses the same adverse risk to the parties' innocent child. A trial in this matter would undoubtedly permit (if not require) that the jury hear about Wendy's adulterous affair with H.T., her failure to tell Steve he was not Stephanie's biological father, her false statement about being raped, and her attempt to terminate Steve's parental rights in the dissolution action. Given that Steve seeks damages for the emotional distress he suffered in response to the attempted termination of his parental relationship with Stephanie (who is now almost seven years old), any competent defense lawyer would focus on Stephanie during pretrial discovery, most likely taking her deposition, to determine the nature of her relationship with, and feelings toward, Steve. Both sides may find it necessary to call Stephanie as a witness at trial. Just as Stephanie was a pawn in the dissolution proceeding-with Steve and Wendy each seeking sole custody-this litigation would once again put her in the middle of feuding parents who are pulling her in opposite directions.
A dissolution action alone-even without subsequent civil litigation-often exacts a severe emotional cost on the participants: "[F]or most children [and parents], the period immediately after separation is a period of stress and anxiety. Each person is affected by the absence of a person (or persons) who had been central to their lives. Each person is forced to adjust to a substantially altered living situation at a time when each is least well-armed psychologically to cope with it.... Children's basic physical needs are met during this period, but nearly all children experience severe emotional distress .... Many feel unhappy and disoriented for long periods after the divorce for reasons that appear to relate to the breakup of the family." (Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce (1984) 83 Mich. L.Rev. 477, 507; accord, Schepard, Taking Children Seriously: Promoting Cooperative Custody after Divorce (1985) 64 Tex. L.Rev. 687, 703 ["divorce produces significant and threatening instability in a child's life that can cause the child to suffer in a variety of ways-emotionally, financially, and in school achievement as compared to her peers in two parent families"].) For the sake of the children involved in a dissolution proceeding, the law should seek to minimize the emotional toll that follows. We would not further that goal by allowing Stephanie to become the focal point of this postdissolution action, in which she may be called to testify against one or both of her parents. " 'It is extremely traumatic for a child to testify in open court against a parent ....' " (In re Dependency of K.R. (1995) 128 Wn.2d 129, 145, fn. 8 [904 P.2d 1132, 1140].)
The record suggests that Stephanie refers to H.T., not Steve, as "daddy." That is precisely the type of evidence that Wendy would want to obtain by taking Stephanie's deposition. It would also make compelling trial testimony. Steve, on the other hand, would want to call Stephanie as a witness at trial in order to corroborate his own testimony that they have a close and significant parent-child relationship.
In Klein, the Supreme Court flatly rejected the argument that the possibility of fraud between spouses provided a public policy reason for prohibiting such suits: "The possibility of fraud or perjury exists to some degree in all cases. But we do not deny a cause of action to a party because of such a danger.... When, as and if that issue does arise in future cases the courts are equipped to meet it." (Klein v. Klein, supra, 58 Cal.2d at p. 695.)
In short, "the innocent child[] here may suffer significant harm from having [her] family involved in litigation such as this and ... this is exactly the type of lawsuit which, if allowed to proceed, might result in more social damage than will occur if the courts decline to intervene. 'We do not believe that the law should provide a basis for such interfamilial warfare.' " (Richard P. v. Superior Court, supra, 202 Cal.App.3d at p. 1094.) Third, it is important to consider the context in which Steve's claim arose. In doing so, we find it unnecessary to address the broader question of whether public policy bars all interspousal claims of intentional infliction of emotional distress. Rather, we think it significant that the claim here is based on Wendy's attempt in the dissolution proceeding to terminate Steve's parental rights. For his part, Steve requested in his petition for dissolution that he be awarded sole custody of Stephanie. Thus, each parent attempted in some manner to use the judicial system to pull Stephanie away from the other parent. This type of conduct is not uncommon. Dissolution and custody disputes are often fraught with emotionally charged issues and competing charges of impropriety.
We believe that a claim of intentional infliction of emotional distress should rarely, if ever, be permitted where it is based on conduct such as herein alleged. The law should not allow an emotional distress claim every time one party to a dissolution proceeding offers evidence or makes an assertion that upsets the other party. "Married couples share an intensely personal and intimate relationship. When discord arises, it is inevitable that the parties will suffer emotional distress, often severe." (Twyman v. Twyman (Tex. 1993) 855 S.W.2d 619, 627 (conc. and dis. opn. of Phillips, C. J.).) "[W]here man and [woman] are involved in a marriage relationship, there could always exist a tort for intentional infliction of emotional distress where they had an argument. It could be over the family dog, who takes out the garbage, who forgot to pay the bill, or who is spending too much money. In other words, the law should not provide a basis for interfamilial warfare between husbands and wives where our courts would be flooded with litigation." (Pickering v. Pickering (S.D. 1989) 434 N.W.2d 758, 764 (conc. and dis. opn. of Henderson, J.).)
Finally, Steve's claim would contravene the policies underlying California's abolition of heart-balm actions. Civil Code section 43.4 provides that "[a] fraudulent promise to marry or to cohabit after marriage does not give rise to a cause of action for damages." Civil Code section 43.5 abolishes causes of action for alienation of affection, criminal conversation, seduction of a person over the age of legal consent, and breach of a promise to marry. In general, these statutes "recognize[] that certain sexual conduct and interpersonal decisions are, on public policy grounds, outside the realm of tort liability." (Perry v. Atkinson (1987) 195 Cal.App.3d 14, 19 [240 Cal.Rptr. 402].)
We find it of particular significance that the Legislature has barred actions for alienation of affection. That cause of action permitted a spouse to sue a third person who had intentionally and wrongfully destroyed the marital relationship. (See Smith v. Pust (1993) 19 Cal.App.4th 263, 268 [23 Cal.Rptr.2d 364]; Ford v. Evans (1938) 29 Cal.App.2d 623, 624 [85 P.2d 214]; Kelley v. Jones (Tenn.Ct.App. 1984) 675 S.W.2d 189, 190; Jackson v. Righter (Utah 1995) 891 P.2d 1387, 1393.) However, most courts declined to recognize a cause of action for the alienation of a child's affection, i.e., for the destruction of a parent-child relationship. (See, e.g., Bock v. Lindquist (Minn. 1979) 278 N.W.2d 326, 327 & fn. 3; Edwards v. Edwards (1979) 43 N.C.App. 296, 300-301 [259 S.E.2d 11, 14].) As the Minnesota Supreme Court explained in rejecting such a claim: "We hold, on consideration of sound public policy, that a right of action by a parent for alienation of a child's affections should not be recognized. The circumstances under which the right has here been asserted demonstrate the potential for grave abuses, in which a child becomes the object of intra-family controversy and, indeed, a pawn in disputes over monetary matters. In the more usual case of marriage dissolution resulting in deteriorated relationships, a cause of action by one parent against another for alienation of a child's affections would exacerbate the unhappy relationships and become a strategic tool for advantageous use of one family member over another." (Bock v. Lindquist, supra, 278 N.W.2d at pp. 327-328, fn. omitted.)
In enacting the anti-heart-balm statutes, the California Legislature understood that "[w]ords of love, passion and sexual desire are simply unsuited to the cumbersome strictures of common law [causes of action]. The idea that a judge, or jury of 12 solid citizens, can arbitrate whether an individual's romantic declarations at a certain time are true or false, or made with intent to deceive, seems almost ridiculously wooden .... 'The judiciary should not attempt to regulate all aspects of the human condition. Relationships may take varied forms and beget complications and entanglements which defy reason.' ... Love has been known to last a lifetime, but it has also been known to be notoriously evanescent. These are matters better left to advice columnists than to judges and juries." (Askew v. Askew (1994) 22 Cal.App.4th 942, 959 [28 Cal.Rptr.2d 284], citation and fn. omitted, italics added.)
As stated in a leading treatise: "Those actions for interference with domestic relations which carry an accusation of sexual misbehavior-that is to say, criminal conversation, seduction, and to some extent alienation of affections-have been peculiarly susceptible to abuse. Together with the action for breach of promise to marry, it is notorious that they have afforded a fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force a settlement. There is good reason to believe that even genuine actions of this type are brought more frequently than not with purely mercenary or vindictive motives; that it is impossible to compensate for such damage with what has derisively been called 'heart balm;' that people of any decent instincts do not bring an action which merely adds to the family disgrace; and that no preventive purpose is served, since such torts seldom are committed with deliberate plan. Added to this is the increasing recognition that each spouse is an autonomous human being, that neither is the property of the other, and that a home so easily broken is not worth maintaining. [¶] The result of all this has been a considerable attack upon the actions named. Since the 1930s half of the states [including California] have abolished or severely limited the action for alienation of affections or the action for criminal conversation or both.... The trend against such actions has moved slowly, but in the light of increased emphasis in our society on personal choice, the decriminalization of sexual activities in many states, and scepticism about the role of law in protecting feelings and enforcing highly personal morality, it seems doubtful that the trend will be reversed." (Prosser & Keeton, Torts (5th ed. 1984) section 124, pp. 929-930, fns. omitted.)
To the extent the present litigation is premised on Wendy's attempt to destroy Steve's parental relationship with Stephanie, it resembles a cause of action for alienation of a child's affection. The reasons for not recognizing that cause of action in the first place, together with the public policies furthered by the anti-heart-balm statutes, counsel against allowing this lawsuit to proceed. (See Hyman v. Moldovan (1983) 166 Ga.App. 891 [305 S.E.2d 648] [anti-heart-balm statute bars not only claims for loss of spousal affection but also claims for loss of child's affection]; Katz v. Katz (1950) 197 Misc. 412 [95 N.Y.S.2d 863] [same].) The fact that Wendy sought to end Steve's parental relationship through a judicial proceeding does not sufficiently distinguish his emotional distress claim from a prohibited action for alienation of a child's affection. (See McGrady v. Rosenbaum (1970) 62 Misc.2d 182, 189-190 [308 N.Y.S.2d 181, 188-190] [wife's efforts to terminate father-son relationship, in part through custody proceeding, did not permit husband to sue for alienation of affection or intentional infliction of emotional distress], affd. mem. (1971) 37 A.D.2d 917 [324 N.Y.S.2d 876].)
In closing, we note the appropriate words of the New Mexico Court of Appeals from a decision rejecting a wife's claim against her husband for intentional infliction of emotional distress:
"Wife contends that we must recognize the tort [of intentional infliction of emotional distress] when committed by one spouse against the other because New Mexico has abandoned immunity for interspousal torts.... Yet the abolition of immunity does not mean that the existence of the marriage must be ignored in determining the scope of liability.... [¶] Thus, the family relationship can be an important consideration in analyzing intrafamilial torts, both negligent and intentional. Despite the abolition of interspousal immunity, we must still evaluate wife's claims in light of the marital context in which they arose.... * * *
"Conduct intentionally or recklessly causing emotional distress to one's spouse is prevalent in our society. This is unfortunate but perhaps not surprising, given the length and intensity of the marital relationship. Yet even when the conduct of feuding spouses is not particularly unusual, high emotions can readily cause an offended spouse to view the other's misconduct as 'extreme and outrageous.' Thus, if the tort of outrage is construed loosely or broadly, claims of outrage may be tacked on in typical marital disputes, taxing judicial resources. * * *
"Not only should intramarital activity ordinarily not be the basis for tort liability, it should also be protected against disclosure in tort litigation. Although the spouse who raises a claim of outrage has no right to complain of the exposure of matters relevant to the claim, courts must be sensitive to the privacy interests of the defending spouse. Any litigation of a claim is certain to require exposure of the intimacies of married life. This feature of the tort distinguishes it from intramarital torts already recognized in New Mexico. For example, a suit by one spouse against another arising out of an automobile accident poses no such risk. Nor does one ordinarily think of exposure of an incident of battery as implicating legitimate privacy interests. In contrast, in this case the judge found that it was extreme and outrageous conduct for husband to refuse sexual relations with wife. Should we really use this tort as a basis for inquiry into a matter of such intimacy? ...
"Moreover, ... a reliable determination of causation is difficult if not impossible when outrage is alleged in this context. The connection between the outrageousness of the conduct of one spouse and the severe emotional distress of the other will likely be obscure. Although the victim spouse may well be suffering severe emotional distress, was it caused by the outrageousness of the conduct or by the implied ... message of antipathy? What could be more devastating to one's spouse than to say, 'I don't love you any more'-a statement that could not form the basis for a cause of action? Rejection alone can create severe emotional distress. Suicides by jilted lovers are legion. Every adult knows individuals who have sunk into disabling depression when a spouse seeks divorce. As a result, litigation of an interspousal claim of outrage could easily degenerate into a battle of self-proclaimed experts performing psychological autopsies to 'discover' whether the cause of the emotional distress was some particular despicable conduct or simply rejection by a loved one. Of course, no such problem arises in the context of previously recognized intramarital torts. If one spouse commits battery on another or causes an accident by driving negligently, the injuries to the other spouse can readily be tied to the tortious conduct. *
, 43.5; Askew v. Askew, supra, 22 Cal.App.4th at pp. 954-959.) Here, allegations in the original and first amended complaints suggest that the filing of the action was motivated, at least in part, by Wendy's lack of affection for Steve. The original complaint stated: "Prior to marriage, [Wendy] failed to reveal and suppressed the fact that she did not love [Steve], that she was in love with someone else with whom she was having a sexual relationship before and during her marriage to [Steve], [and] that she only married [Steve] because of pressure from her family." Similar allegations appeared in the first amended complaint. To the extent the action was based on this type of "injury," it would be barred by California's anti-heart-balm statutes. (See Civ. Code, sections 43.4
The two cases cited in Nagy's discussion of this issue are inapposite. In Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640 [164 Cal.Rptr. 618], the defendant in a paternity action admitted paternity, then cross-complained against the mother for fraud, alleging that she had represented (falsely) that she was taking birth control pills and that, but for her misrepresentation, he would not have engaged in sexual relations with her. (Id. at pp. 641-642.) The mother's demurrer to the cross-complaint was sustained without leave to amend, and Division Two of our Court affirmed-holding that the facts pled were not actionable because they did not constitute a tort. (Id. at pp. 642-643 [there is no tortious liability for the natural results of consensual sexual intercourse].) Whatever relevance that holding may have had to Nagy, it has none to our case. In Barbara A. v. John G. (1983) 145 Cal.App.3d 369 [193 Cal.Rptr. 422], a woman who became sterile as the result of an ectopic pregnancy sued the man who had impregnated her (her former lawyer) for fraud, alleging that he had represented to her (falsely) that he was sterile, that she had relied on him because he was her lawyer, and that she would not have had sexual intercourse with him but for his misrepresentations. (Id. at p. 373.) The trial court granted a motion for judgment on the pleadings but Division Three of the First District reversed, finding that Stephen K. was not dispositive: According to Barbara A., the father in Stephen K. was seeking damages for the "wrongful birth" of his child, which resulted in support obligations and caused mental suffering; in Barbara A., however, no child was involved and the mother was seeking "damages for severe injury to her own body." (Barbara A. v. John G., supra, 145 Cal.App.3d at pp. 378-379.) In my view, Barbara A.'s rejection of Stephen K. is similar to my rejection of Nagy and Richard P.
"Consequently, in determining when the tort of outrage should be recognized in the marital setting, the threshold of outrageousness should be set high enough-or the circumstances in which the tort is recognized should be described precisely enough ...-that the social good from recognizing the tort will not be outweighed by unseemly and invasive litigation of meritless claims." (Hakkila v. Hakkila (N.M.Ct.App. 1991) 812 P.2d 1320, 1323-1326, citations omitted; see also Wiener v. Wiener (1981) 84 A.D.2d 814 [444 N.Y.S.2d 130].)
In this case, we conclude that the social good from allowing Steve's cause of action to proceed is outweighed by the adverse consequences. "[A] tort action such as this ... 'seldom, if ever, result[s] in benefit to [the parties'] child.' " (Richard P. v. Superior Court, supra, 202 Cal.App.3d at pp. 1095-1096.) Moreover, Wendy's alleged misconduct-concealing that H.T. was Stephanie's biological father, lying to Steve about being raped, and ultimately challenging Steve's paternity-is "similar to a 'betrayal' for which the law wisely should not provide a remedy." (Nagy v. Nagy, supra, 210 Cal.App.3d at p. 1270.) " '... To attempt to correct such wrongs or give relief from their effects "[will] do more social damage than if the law leaves them alone." ...' " (Id. at p. 1269.) Disposition
We do not suggest that public policy bars all civil liability regardless of the manner in which a parent attempts to terminate a child's relationship with the other parent. For example, a parent who commits an act of "child-stealing" may be civilly liable to the other parent. (See Surina v. Lucey (1985) 168 Cal.App.3d 539, 543 [214 Cal.Rptr. 509]; see also Rosefield v. Rosefield (1963) 221 Cal.App.2d 431 [34 Cal.Rptr. 479].)
The order of dismissal is affirmed.
Ortega, Acting P. J., concurred.
DISSENTING:
VOGEL (Miriam A.), J.
I dissent.
Unconcerned about the posture of this appeal or the parties' concession that the elements of intentional infliction of emotional distress have been well pled, and undeterred by our Supreme Court's rejection of all aspects of interspousal immunity, the majority relies on cases from other states to reach a legally anachronistic result that does little more than reveal their troglodytic wish for a society that no longer exists. As for me, I don't like this lawsuit any more than they do-but I like less the idea that we might leave a man without redress for the damage he allegedly has suffered as the result of his former wife's vicious, malicious conduct. I would reverse.
The Facts 1
While Steve was married to Wendy, Wendy gave birth to Stephanie. Steve believed he was Stephanie's father. Wendy knew otherwise but did not tell Steve until after they separated three years later-at which point Wendy told Steve that Stephanie had been conceived when she was raped. Although the rape story was a lie (Wendy had been having an affair), a subsequent blood test obtained at Wendy's urging established that Steve could not be Stephanie's father. During the course of a nasty divorce, Wendy then tried to use the blood test to challenge Steve's paternity but failed (because Steve, as Wendy's husband at the time of conception, was conclusively presumed to be Stephanie's father). (In re the Marriage of Steve H. and Wendy S. (Oct. 18, 1995) B087376 [nonpub. opn.]; Fam. Code, section 7540 [the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be the child of the marriage].) In this action, Steve wants to sue Wendy for damages on a theory of intentional infliction of emotional distress but the trial court held that public policy bars his claim. The Law
I.
In California, the general rule is that negligence and intentional torts that proximately cause injuries result in liability (Civ. Code, section 3523 [for every wrong there is a remedy]) and our Supreme Court has held, again and again, that exceptions based upon family relationships "are not to be lightly created ...." (Emery v. Emery (1955) 45 Cal.2d 421, 430 [289 P.2d 218] [a child may sue his parent for an intentional tort]; Self v. Self (1962) 58 Cal.2d 683, 684, 689 [26 Cal.Rptr. 97, 376 P.2d 65] [abrogating interspousal immunity for intentional torts, and holding that the court should not decline to entertain a meritorious action against a spouse because of a dubious apprehension that in some future case trifling domestic difficulties may become the subject of litigation]; 58 Cal.2d 692, 693 [26 Cal.Rptr. 102, 376 P.2d 70] [abrogating interspousal immunity for negligence]; 3 Cal.3d 914, 922 [92 Cal.Rptr. 288, 479 P.2d 648] [a child may sue his parent for negligence as well as for an intentional tort].)
Spousal and parental immunity were generally justified on the same grounds-that they were necessary to prevent disruption of family harmony, to prevent fraud or collusion between family "adversaries," and to protect the best interests of minor children. (Emery v. Emery, supra, 45 Cal.2d 421; Self v. Self, supra, 58 Cal.2d 683; Klein v. Klein, supra, 58 Cal.2d 692; Gibson v. Gibson, supra, 3 Cal.3d 914.) As the Supreme Court has explained, these "grounds" cannot withstand scrutiny. For example, the notion of "danger to family harmony" has been termed illogical and unsound (Gibson v. Gibson, supra, 3 Cal.3d at p. 919; Self v. Self, supra, 58 Cal.2d at p. 690), and the high court has concluded that the "doctrinal underpinnings" of family tort immunity have been essentially eroded (Gibson v. Gibson, supra, 3 Cal.3d at p. 918).
In short, the Supreme Court of California has declared intolerable the notion that a parent or spouse could cloak herself in the shroud of public policy and waltz off into the night with impunity, free from liability to her spouse for her own tortious acts.
II.
The majority pays lip service to California law but ignores it because it does not support the desired result. There are several problems with the majority's reasoning.
A.
My colleagues say that Nagy v. Nagy (1989) 210 Cal.App.3d 1262 [258 Cal.Rptr. 787], and Richard P. v. Superior Court (1988) 202 Cal.App.3d 1089 [249 Cal.Rptr. 246], provide support for their conclusion. I disagree.
1.
In Richard P., Linda, while married to Gerald, gave birth to two children, both fathered not by Gerald but by Richard. When Linda and Gerald separated, they and Richard entered into a stipulated judgment that gave joint legal custody of the children to Linda and Richard, physical custody to Linda, and visitation rights to both Richard and Gerald-although only Richard was obligated to support the children. Gerald, on the other hand, relinquished any rights he might otherwise have had as the natural or presumptive father of the children. Gerald then sued Richard for fraud, alleging that, as a result of Richard's willful concealment of his paternity, Gerald had become emotionally attached to the children. (Richard P. v. Superior Court, supra, 202 Cal.App.3d at pp. 1091-1092.) Division Two of the First District held that "the imposition of tortious liability in circumstances such as these would frustrate the strong public policy in having natural fathers acknowledge and support their own children. Men in Richard's situation, who are otherwise willing to voluntarily acknowledge and support their children would have a strong disincentive to do so since revealing the truth would expose them to this type of tort action for compensatory and punitive damages. We deem this result undesirable as a matter of public policy." (Id. at p. 1096.)
I have several problems with Richard P. First, "[m]en in Richard's situation" are those who have fathered children as the result of an affair with a married woman and I find perverse the court's desire to protect such men from tort liability when recovery is sought by the cuckolded husband. Second, I have no idea how many "[m]en in Richard's position" come forward voluntarily or only when dragged kicking and screaming or at all, and I question the soundness of a decision leaving Gerald without a remedy when the effect of his action on others is pure speculation. Third, the public policy announced in Richard P. appears to be one created out of the whole cloth, and the court has failed to explain the source of its power to announce such a public policy at will. When it comes to the application of Richard P. to the facts of the case before us, I confess my inability to see any relevance at all. In Richard P., the non-biological father (Gerald) sought damages for the wrongful creation of his relationship with the child. In our case, the non-biological father (Steve) seeks damages for Wendy's wrongful efforts to destroy his relationship with Stephanie. Thus, assuming there did exist a "public policy" reason for prohibiting an attack on the creation of a parent-child relationship, it would seem to follow ineluctably that the same public policy could not be used to prohibit a suit defending the creation of the same relationship.
2.
In Nagy v. Nagy, supra, 210 Cal.App.3d 1262, Sabina, while married to Peter, gave birth to a child fathered by another man (a detail Sabina failed to share with Peter until she was deposed during their divorce proceedings). After the divorce, Peter sued Sabina for fraud and intentional infliction of emotional distress, alleging that he was entitled to compensation because he had developed a close and intimate relationship with the child and had acted as would a father for a son. (Id. at pp. 1265-1268.) Division Seven of our court disposed of the fraud cause of action by holding that a non-biological parent cannot recover damages "for developing a close relationship with a child misrepresented to be his" (id. at p. 1269), and disposed of the emotional distress claim by finding it was barred by the litigation privilege (on the theory that the proximate cause of Peter's emotional distress was not Sabina's misrepresentation during the marriage but rather her truthful disclosure at her deposition). (Id. at pp. 1270-1271.)
As in Richard P., the non-biological father in Nagy (Peter) sought damages for the wrongful creation of his relationship with the child. For reasons not explained, the court in Nagy found a public policy reason for dismissing the non-biological father's fraud cause of action but apparently found it insufficient to dispose of his intentional infliction of emotional distress claim (which it resolved on the basis of the litigation privilege). According to Division Seven, "allowing a non-biological parent to recover damages for developing a close relationship with a child misrepresented to be his and performing parental acts is not a 'damage' which should be compensable under the law. Although we do not condone [the wife's] misrepresentations, they are similar to a 'betrayal' for which the law wisely should not provide a remedy." (Nagy v. Nagy, supra, 210 Cal.App.3d at pp. 1269-1270.) In our case, of course, Steve is not suing for fraud and he is not seeking damages for anything like a betrayal or for Wendy's conduct that led him to "develop[] a close relationship" with Stephanie. He is suing because he wanted to maintain that relationship and Wendy attempted to destroy it. 4
3.
Relying on Richard P. and Nagy, my colleagues assert that, notwithstanding the difference in Steve's claim, there exists "the same adverse risk to the parties' innocent child." (Maj. opn., p. 385.) They raise the specter of a trial where the jury would hear about Wendy's adulterous affair and her lies to her husband, and they speculate that "any competent defense lawyer would focus on Stephanie during pretrial discovery, most likely taking her deposition, to determine the nature of her relationship with, and feelings toward, Steve." (Id. at p. 386.) So what? If Wendy, with Stephanie watching, had attempted to murder Steve, we would not tell Steve that he had no right to sue Wendy for assault or battery because Stephanie would have to be deposed and called as a witness at trial. If one person ("A") has a claim against another unrelated person ("B") for intentional infliction of emotional distress where a child is a witness, we would not tell A that he has no right to sue B because a child would be deposed or called as a witness at trial. In short, unless there exists some public policy reason for prohibiting Steve's suit against Wendy, the majority's concern for Stephanie's well being is legally irrelevant.
B.
Next, the majority says it is "unnecessary to address the broader question of whether public policy bars all interspousal claims of intentional infliction of emotional distress" because Wendy's efforts to destroy Steve's relationship with Stephanie occurred in the marital dissolution proceeding, that such "emotionally charged issues and competing charges of impropriety" are not uncommon in dissolution and custody disputes and that, therefore, "a claim of intentional infliction of emotional distress should rarely, if ever, be permitted where it is based on conduct such as herein alleged." (Maj. opn., p. 387.) Relying on cases from Texas and South Dakota, where real men apparently understand that emotional distress caused by marital discord is "inevitable" (Twyman v. Twyman (Tex. 1993) 855 S.W.2d 619, 627 (conc. and dis. opn. of Phillips, C. J.)) and that our courts need to be protected from interspousal disputes "over the family dog, who takes out the garbage, who forgot to pay the bill, or who is spending too much money" (Pickering v. Pickering (S.D. 1989) 434 N.W.2d 758, 764 (conc. and dis. opn. of Henderson, J.)), my colleagues seem undisturbed by the fact that, in California, outrageous conduct-which Steve and Wendy agree exists in this case, at least for purposes of the present proceedings-is actionable without regard to whether the parties are spouses. (Part I, ante.)
C.
The majority's coup de grace is "California's abolition of heart-balm actions." (Maj. opn., p. 388.) Give me a break. Steve is not suing Wendy for alienation of affection, breach of a promise to marry, or anything of the sort. He is suing her because she tricked him into having a blood test performed so that she could (and did) use it in an attempt to prevent him from ever seeing the child she led him to believe was his. The fact that other states have refused to recognize a cause of action for the alienation of a child's affection is equally irrelevant, since that is not the claim asserted by Steve against Wendy. In California, we do recognize the tort of intentional infliction of emotional distress and our Supreme Court has held that public policy exceptions to the general rule of liability are to be narrowly construed. (Emery v. Emery, supra, 45 Cal.2d at p. 430.) My colleagues have done just the opposite.
III.
The majority acknowledges that one parent may be civilly liable to the other for "child stealing" but concludes the attempt to "terminate a child's relationship with the other parent" involved in our case is not subject to the same protection. (Maj. opn., p. 392, fn. 5.) In my view, an abduction by physical force is no more reprehensible than an abduction by judicial fiat, which is what Wendy attempted in the dissolution proceedings.
My colleagues then conclude with a lengthy quotation from a New Mexico case, Hakkila v. Hakkila (N.M. Ct.App. 1991) 812 P.2d 1320, where the court held, among other things, that proof of causation is difficult in interspousal disputes alleging emotional distress. Hakkila was an appeal from a final judgment rendered after a trial on the merits, where the court held that outrageous conduct had not been proven. (Id. at p. 1327.) Again, the majority seems to have forgotten that our case reaches us in a very different posture (Wendy has conceded that her conduct was outrageous for purposes of this appeal, and that all other elements of the tort-including causation-are well pled).
Although I see no reason to look to the laws of any other state when our own law provides the answer to the issue before us, it is worth noting that the only case factually similar to ours comes from Illinois and reaches a result consistent with my view, not the view expressed by my colleagues. In Koelle v. Zwiren (1996) 284 Ill.App.3d 778 [220 Ill.Dec. 51, 672 N.E.2d 868], Erik Koelle sued Jan Zwiren, alleging that Jan had led him to believe that he was the father of her daughter and that, for eight years, he had developed a "loving father-daughter relationship" with the child. When Erik discovered that he was not the child's biological father, he sued Jan for fraud and intentional infliction of emotional distress. (Id. at pp. 780-782 [672 N.E.2d at pp. 870-872].) On Jan's motion, the trial court dismissed Erik's action.
The Illinois Court of Appeal reversed, holding that Erik did "not seek to be paid for the love and affection he gave [to the child]. In fact, his complaint expresses his desire to continue that relationship.... [¶] [Jan] claims that public policy disfavors [Erik's] lawsuit because 'intrafamilial warfare' may be harmful to the child .... We believe that any harm [the child] may have suffered from this alleged situation would have been caused by [Jan]. [The child's] real father is dead, and now [Jan] will not allow her to see the only father she ever knew. If anything, [Erik's] lawsuit seeks to limit the harm caused with [his request for visitation which would allow Erik and the child] to continue their loving father-daughter relationship. [¶] We find that public policy does not serve to protect people engaging in behavior such as that with which [Erik's] complaint charges [Jan], and we will not allow [Jan] to use her daughter to avoid responsibility for the consequences of her alleged deception." (Koelle v. Zwiren, supra, 284 Ill.App.3d at pp. 788-789, [672 N.E.2d at p. 875].) IV.
I would not let Wendy use her daughter as a shield to escape liability for her tortious conduct. When the simple justice of redressing obvious wrongs is involved, the arguments for domestic harmony have been rejected and there is nothing about this case that cries out for their resurrection. While it may offend some to permit ex-spouses to sue each other in this context, I am far more offended by the majority's decision to leave Steve without a remedy for the damage he allegedly has suffered as a result of Wendy's malicious misconduct. I find equally offensive the undercurrent of paternalistic chauvinism running just beneath the surface of the cases relied on by the majority, about which I will say no more-either you see it or you don't.
I would reverse.