Barbara A. v. John G.

Decision Date26 July 1983
Citation193 Cal.Rptr. 422,145 Cal.App.3d 369
CourtCalifornia Court of Appeals Court of Appeals
PartiesBARBARA A., Cross-complainant and Appellant, v. JOHN G., Cross-defendant and Respondent. A012960. Civ. 50953.

Mary Cynthia Dunlap, San Francisco, for cross-complainant and appellant.

Long & Levit, Ronald E. Mallen, Donald W. Carlson, Marsha L. Morrow, San Francisco, for cross-defendant and respondent.

BARRY-DEAL, Associate Justice.

The issue presented in this appeal is whether a woman (appellant) suffering injuries from an ectopic pregnancy 1 has a cause of action in tort against the responsible man (respondent) for his misrepresentations of infertility. The trial court ruled that no cause of action would lie and granted respondent's motion for judgment on the pleadings. We reverse the judgment.

I. Procedural Background

Respondent, an attorney, filed an action in municipal court against appellant for $1,520 in fees for representing her in a family law matter. Appellant filed her answer and a cross-complaint for damages alleging, inter alia, fraud and legal malpractice, and the action was transferred to the superior court. After a demurrer to the cross-complaint was filed, appellant by stipulation filed her first amended cross-complaint, which is the subject of this appeal. After several hearings on the demurrer to the amended cross-complaint, the court (Kongsgaard, J.) sustained a demurrer to the count alleging intentional/negligent infliction of emotional distress and dismissed the two counts alleging legal malpractice for appellant's failure to amend. 2 The court overruled the demurrer to the count alleging battery and the one alleging intentional misrepresentation, in spite of respondent's argument that an action was barred by Civil Code section 43.5, the "anti-heart balm" statute. 3

Prior to trial, on May 12, 1980, the Second District filed its opinion in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640, 164 Cal.Rptr. 618, holding that a man stated no cause of action in a cross-complaint against a woman for misrepresentations about her use of birth control in an action brought by her to establish paternity of their child and to impose on him an obligation for child support. In the case at bar, the court (Sherwin, J.) agreed with respondent that Stephen K. v. Roni L. was controlling and granted his motion for judgment on the pleadings, which was entered on July 25, 1980. Respondent's complaint for fees was remanded to the municipal court for resolution.

II. Standard of Review and Factual Allegations

A motion for judgment on the pleadings based on failure to state a cause of action has a function similar to that of a general demurrer. (See 4 Witkin, Cal Procedure (2d ed. 1971) Proceedings Without Trial, §§ 161-170, pp. 2816-2823.) On review of the judgment in either case, all material facts alleged in the pleading under attack must be accepted as true. 4 (Marvin v. Marvin (1976) 18 Cal.3d 660, 666, 134 Cal.Rptr. 815, 557 P.2d 106; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 630, 99 Cal.Rptr. 393.) As a reviewing court, we, of course, are not bound by the trial court's determination on whether the alleged facts state a cause of action. With these rules in mind, we summarize the essential facts alleged in appellant's first amended cross-complaint.

Appellant and respondent met about April 1978. Appellant retained respondent, an attorney, to represent her in a post-dissolution proceeding for modification of spousal support and child support for her three children; the legal relationship was in existence at the time of the alleged events. On two occasions, June 25 and June 30, 1978, she and respondent had sexual intercourse with each other. Before they engaged in sexual intercourse the first time, appellant demanded that respondent use a contraceptive device, i.e., a condom, and explained that for emotional and financial reasons she did not want to become pregnant. Appellant further told respondent "... that she would not engage in sexual intercourse with him if there was any likelihood of her becoming pregnant; ..." Respondent told appellant not to worry, saying, " 'I can't possibly get anyone pregnant.' " She understood this to mean that he was sterile by nature or as the result of a vasectomy.

Respondent's representation about his procreative inability was false, and he knew it was false. It was made with the intent to induce appellant to engage in sexual intercourse, protected or not. Appellant, relying on respondent's assurance of his sterility, consented to and did engage in sexual intercourse with respondent. The attorney-client relationship produced in appellant a sense of trust in respondent, and she justifiably relied on his representations.

As a result of sexual intercourse with respondent, appellant became pregnant. The pregnancy was determined to be tubal, and, as a consequence, appellant was forced to undergo surgery to save her life. Her Fallopian tube was removed, and she was rendered sterile by the surgery. 5 She suffered physical, emotional, and financial injuries as a result of the pregnancy.

III. Cause of Action on Theories of Battery or Deceit

Based on the alleged facts, appellant has stated a cause of action in battery, i.e., an unconsented invasion of her interest in freedom from intentional, unlawful, and harmful or offensive contact with her person. (See Prosser, Torts (4th ed. 1971) § 9, pp. 34-37 [hereafter cited as Prosser]; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 194, pp. 2482-2483.) Consent to an act, otherwise a battery, normally vitiates the wrong. (Delia S. v. Torres (1982) 134 Cal.App.3d 471, 480, 184 Cal.Rptr. 787; Prosser, supra, § 18, p. 101.) However, appellant has alleged alternate grounds for invalidating her consent and rendering respondent's act a battery: (1) that the act of impregnation exceeded the scope of the consent (see Cobbs v. Grant (1972) 8 Cal.3d 229, 239-240, 104 Cal.Rptr. 505, 502 P.2d 1; Estrada v. Orwitz (1946) 75 Cal.App.2d 54, 57, 170 P.2d 43), and (2) that the consent to intercourse was fraudulently induced (Prosser, supra, § 18, p. 105; see Butler v. Collins (1859) 12 Cal. 457, 463). As she has alleged physical, emotional, and financial damage proximately caused by the wrongful touching, appellant's cause of action for battery was sufficiently pleaded.

As an alternative theory for recovery in tort, appellant pleaded deceit, an action sanctioned by Civil Code section 1709, which provides: "One who willfully deceives another with intent to induce him [or her] to alter his [or her] position to his [or her] injury or risk, is liable for any damage which he [or she] thereby suffers." Deceit, within the meaning of section 1709 is defined by Civil Code section 1710 6 to include both fraudulent misrepresentations ("The suggestion, as a fact, of that which is not true, by one who does not believe it to be true ...") and negligent misrepresentations ("The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true ..."). (See, generally, 4 Witkin, Summary of Cal.Law, Torts, supra, §§ 445-482, pp. 2710-2744; Prosser,supra, ch. 18, §§ 105-110, pp. 683-736; Rest.2d Torts, §§ 310, 557A.)

In pleading a cause of action for deceit, a plaintiff must specifically plead the following elements: (1) a false representation (ordinarily of a fact) made by the defendant; (2) knowledge or belief on the part of the defendant that the representation is false, or that the representation was made by defendant without reasonable grounds for believing its truth; (3) an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation; (4) justifiable reliance upon the representation by the plaintiff; (5) damage to the plaintiff, resulting from such reliance. (See Prosser, supra, § 105, pp. 685-686; Gagne v. Bertran (1954) 43 Cal.2d 481, 487-489, 275 P.2d 15; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 804-805, 142 Cal.Rptr. 487.)

Appellant has pleaded all the essential allegations, as set forth above, of a cause of action for deceit. Respondent's challenge to the sufficiency of the pleading, i.e., "She does not allege that she asked him what he meant by that ambiguous statement ['I can't possibly get anyone pregnant'] ...," is meritless. His proposed allegation relates to proof of justifiable reliance at trial, not to sufficiency of the pleading.

IV. Basic Rule

It is a fundamental principle of our system of jurisprudence that for every legal wrong there is a remedy (Civ.Code, § 3523), and that an injured party should be compensated for all damage proximately caused by the wrongdoer unless a departure from the basic principle is mandated by a legislative exception or by strong public policy. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173; Murdock v. Murdock (1920) 49 Cal.App. 775, 782-783, 194 P. 762, citing Civ.Code, §§ 1667, 1708, 1709, 3523, and 2224; cf. Rowland v. Christian (1968) 69 Cal.2d 108, 111-112, 70 Cal.Rptr. 97, 443 P.2d 561, characterizing Civ.Code, § 1714, as a basic principle of tort law.)

V. The "Anti-Heart Balm" Statute

Respondent asserts that appellant's action comes within the statutory exception declared in Civil Code section 43.5 and is thus barred. We find that statute is not applicable. Section 43.5 provides, in relevant part, "No cause of action arises for: ... [p] (c) Seduction ...." The word "[s]eduction," as used in the statute, is a term of art involving elements substantively different from those alleged by appellant.

"Seduction imports the idea of illicit intercourse accomplished by the use of arts, persuasions, or wiles to overcome the resistance of a female who is not disposed of her own volition to step aside from the paths of virtue. [Citation.]" (Davis v. Stroud (1942) 52 Cal.App.2d 308, 317, 126 P.2d 409.) It is...

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