Angie M. v. Superior Court

• Decision Date: 31 July 1995
• Docket Number: No. D022862,D022862
• Citation: 44 Cal.Rptr.2d 197,37 Cal.App.4th 1217
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 6684, 95 Daily Journal D.A.R. 11,282 ANGIE M., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Robert HIEMSTRA, Real Party in Interest

Page 197

44 Cal.Rptr.2d 197

37 Cal.App.4th 1217, 95 Cal. Daily Op. Serv. 6684,

95 Daily Journal D.A.R. 11,282

ANGIE M., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent;

Robert HIEMSTRA, Real Party in Interest

No. D022862.

Court of Appeal, Fourth District, Division 1, California.

July 31, 1995.

[37 Cal.App.4th 1220] Mitchell S. Wagner, San Diego, for petitioner.

No appearance, for respondent.

Neil, Dymott, Perkins, Brown & Frank and David G. Brown, San Diego, for real party in interest.

FROEHLICH, Judge.

PROCEEDINGS in mandate after the court sustained a demurrer to two causes of action without leave to amend and granted a motion to strike her claim for punitive damages. S. Charles Wickersham, Judge. Petition granted.

Petitioner, Angie M. (Angie), seeks extraordinary relief after the trial court sustained real party in interest, Robert Hiemstra's (Hiemstra), demurrer to her unlawful

seduction/childhood sexual abuse and intentional infliction of emotional distress causes of action and granted a motion [37 Cal.App.4th 1221] to strike her claim for punitive damages. The primary question presented is whether a civil cause of action for unlawful seduction/sexual abuse can exist against a 48-year-old physician ¹ who engages in sexual intercourse and orally copulates a minor female. Under the alleged facts, we conclude such a cause of action is stated. We further conclude Angie alleged sufficient facts to satisfy the "outrageous" conduct requirement for an intentional infliction of emotional distress cause of action. Finally, we conclude the court erred in striking Angie's claim for punitive damages and in failing to allow Angie leave to amend her intentional infliction of emotional distress claim to allege the extent and nature of her emotional distress.

BACKGROUND

This action is generally based on allegations that Hiemstra, a 48-year-old physician, seduced Angie, a minor, into a meretricious relationship. In the original complaint Angie set forth causes of action entitled (1) unlawful seduction of, and relations with, a minor, (2) intentional infliction of emotional distress, (3) negligent infliction of emotional distress, and (4) battery. In addition to general and special damages, Angie sought punitive damages. Hiemstra demurred to all causes of action on the ground of uncertainty and moved to strike certain allegations including the claim for punitive damages.

The court sustained the defendant's demurrer to the first, second and third causes of action with leave to amend while overruling the demurrer to the fourth cause of action and denying the motion to strike. In explaining why it sustained the demurrer to the seduction cause of action, the court stated that no such cause of action exists in civil law and that the code sections allegedly violated were Penal Code sections giving rise to prosecution by the state. As to the cause of action for intentional infliction of emotional distress, the court stated that the gravamen of the cause of action was intent and that the pleadings were uncertain in that plaintiff pleaded negligence and intent and that a physician's fiduciary duty is to his patients not to a co-employee.

The first amended complaint alleged:

Angie is a female who at all times alleged in the complaint was a minor.

Hiemstra, at all times alleged, was 48 years old and a medical doctor employed by a service providing medical care for homebound patients.

In about July 1993 the service employed Angie where she met Hiemstra for the first time.

About a week later, Hiemstra began inducing Angie into an "indecent relationship."

Hiemstra knew Angie's age and, by gaining her confidence, learned of her "dysfunctional family" background.

Hiemstra, particularly considering his medical training, knew, or should have reasonably known, that Angie, by virtue of her age, "dysfunctional family" background, and other "particular vulnerabilities" was "uniquely and especially susceptible to emotional and psychological harm from an illicit relationship" with him.

Hiemstra took advantage of his position of authority and of Angie's confidence in him to cause her to develop a dependent relationship on him "in much the manner of the phenomen[on] of 'transference' between a patient and his or her psychotherapist."

Hiemstra exploited Angie's vulnerability and her confidence to seduce her into a meretricious relationship which began in July 1993 and lasted until March 1994.

During this time Hiemstra (a) had sexual relations with Angie "virtually daily," (b) performed acts of oral copulation on Angie, (c) solicited Angie to perform acts of oral copulation on him which she refused to do Based on these allegations, Angie set forth causes of action entitled: (1) unlawful seduction of a person below the age of legal consent, childhood sexual abuse, and contributing to the delinquency of a minor; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; and (4) battery. She again sought punitive damages. Hiemstra demurred generally and specially on the basis of uncertainty as to the first and second causes of action and moved to strike punitive damages.

(d) provided Angie with "controlled and illicit substances and alcohol," (e) paid Angie to procure "illicit substances" for him, (f) took Angie to a place of nudity, namely Black's Beach, and (g) otherwise influenced Angie to participate in harmful activities.

The court sustained the demurrer as to both causes of action without leave to amend and granted the motion to strike. As to the unlawful seduction/sexual abuse cause of action, the court concluded it duplicated the fourth cause of action for battery. As to the intentional infliction of emotional distress cause of action, the court concluded that Angie had failed to show any special relationship between the parties other than that of co-workers and that there were no facts showing Angie was susceptible to mental distress or Hiemstra knew of any susceptibility. The court further stated the elements of intent, causation and severe emotional distress were not facts in the pleading.

Upon Angie's petition for review, this court issued an alternative writ and held oral argument.

DISCUSSION

I Standard of Review

Normally, trial court orders made at the pleading stage are discretionary and interlocutory in nature. "Because they are seldom appealable until final judgment in the case, mandamus review will normally lie to control judicial discretion when that discretion has been abused. [Citation.]" (La Jolla Village Homeowners' Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1140, 261 Cal.Rptr. 146.) As stated by a noted commentator on California law, courts increasingly use mandamus to review " 'abuse of discretion' " defined as "substantial error which is clearly prejudicial." (8 Witkin, Cal.Procedure (3d ed. 1985) Extraordinary Writs, § 93, pp 730-732.) This is particularly so when the trial court has deprived a party of an opportunity to plead a substantial portion of the case and extraordinary relief may prevent a needless trial and reversal. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854; Coulter v. Superior Court (1978) 21 Cal.3d 144, 148, 145 Cal.Rptr. 534, 577 P.2d 669.) We thus consider de novo whether the trial court, by granting the demurrer to the first and second causes of action without leave to amend and granting the motion to strike punitive damages, has erred in its rulings and prejudiced Angie by depriving her of a substantial portion of her case. (See La Jolla Village Homeowners' Assn. v. Superior Court, supra, 212 Cal.App.3d at p. 1140, 261 Cal.Rptr. 146.)

II Unlawful Seduction of a Minor/Childhood Sexual Abuse Cause of Action

A demurrer tests the sufficiency of the pleadings, the allegations of which must be accepted as true by the court for purposes of review. (Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231, 18 Cal.Rptr.2d 308.) "[I]t is error for a court to sustain a demurrer where the allegations adequately state a cause of action under any legal theory." (Ibid.)

Hiemstra argues the demurrer to the unlawful seduction/sexual abuse cause of action was properly sustained without leave to amend because there is no liability under existing substantive law, i.e., there is no case or statute defining the alleged violation under civil law. The violations alleged may give rise to criminal prosecution but not to a civil action. Additionally, Hiemstra contends the unlawful seduction/sexual abuse cause of action is identical to and subsumed within the battery cause of action and Angie will therefore Civil actions lie in favor of crime victims. Violation of a criminal statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the criminal statute. (Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1067, 205 Cal.Rptr. 312; see also Laczko v. Jules Meyers, Inc. (1969) 276 Cal.App.2d 293, 295, 80 Cal.Rptr. 798; see generally 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 9, pp. 65-67.) Any injured member of the public for whose benefit the statute is enacted may bring an action. (Michael R. v. Jeffrey B., supra, 158 Cal.App.3d at p. 1067, 205 Cal.Rptr. 312; Laczko v. Jules Meyers, Inc., supra, 276 Cal.App.2d at p. 295, 80 Cal.Rptr. 798.)

not be prejudiced by denial of the writ of mandate.

In the unlawful seduction/sexual abuse cause of action, Angie alleges Hiemstra violated several Penal and Welfare and Institution Code provisions including PENAL CODE SECTIONS 261.5² (unlawful sexual intercourse with a minor) and 288a, subdivision (b)(1) ³ (oral copulation with a person under 18 years of age). She further cites Code of Civil Procedure sections 340 and 340.1 which set forth statutes of limitations for causes of action for "seduction of a person below the age of legal consent" and "childhood sexual abuse," respectiv...