Ddunkin v. Boskey

• Decision Date: 14 July 2000
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 1 Dist. 2000) RAYMOND DUNKIN, Plaintiff and Appellant, v. LISA BOSKEY, Defendant and Respondent. A087866 Filed

98 Cal.Rptr.2d 44 (Cal.App. 1 Dist. 2000)

RAYMOND DUNKIN, Plaintiff and Appellant, v. LISA BOSKEY, Defendant and Respondent.

A087866

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT DIVISION ONE

Filed 7/14/00

(San Francisco County Super. Ct. No. 999768)

Trial Judge: Honorable Ronald E. Quidachay

For Plaintiff and Appellant, Furtado, Jaspovice & Simons, Richard J. Simons, Esq.

For Defendant and Respondent, The Castleman Law Firm, Jacqueline C. Hamilton, Esq., Terrence P. Murphey, Esq., Dunkin v. Boskey, A087866

CERTIFIED FOR PUBLICATION

Swager, J.

Appellant's action against respondent for breach of contract was dismissed after the trial court sustained a demurrer without leave to amend. We conclude that an agreement between the parties to grant appellant paternity rights to a child conceived by artificial insemination is binding, and may be enforced to the extent of an action for unjust enrichment. We therefore reverse the judgment in part and remand the case to the trial court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Following dismissal of his action for declaratory relief to establish his paternity and custody rights to a daughter born to respondent, appellant filed causes of action for breach of contract against respondent and professional negligence against defendant Pacific Fertility Medical Center (hereafter Pacific Fertility) in the present case. Appellant's first amended complaint alleged that he and respondent "cohabitated" between 1993 and 1998, but "were never married." Appellant had suffered from testicular cancer which had left him sterile. In 1995 he and respondent consulted with Pacific Fertility for the purpose of conceiving a child by artificial insemination.

On July 15, 1995, appellant and respondent entered into a written contract, drafted by Pacific Fertility and entitled "Consent for Artificial Insemination" (hereafter the agreement), to "create a child by the use of artificial insemination . . . through the . . . use of the sperm of an anonymous donor." Pursuant to the agreement, which specifies that it is "governed by the Laws of the State of California," appellant and respondent as "male partner and female partner" respectively, acknowledged "our obligation to care for and support and educate and otherwise treat and consider any child born as the result of such artificial insemination in all respects as though it were our natural child." They further promised to "never allege in any proceeding that the child or children, is other than legitimate, and the male partner and the female partner acknowledge that the child shall be the lawful child of both the mother and the male partner, and that neither of them shall assert a contrary position in any subsequent proceeding." According to the first amended complaint, Pacific Fertility advised appellant that "he would be treated by the law as the acknowledged and legal parent of the child to be born through the artificial insemination procedure, and that he need take no further action to have full rights of visitation, custody and other parental rights as to the child."

On April 22, 1996, respondent gave birth to a daughter. Appellant was named as the "Father of Child" on the birth certificate.¹ After the birth, appellant cared for her on a daily basis and "held out the child as his natural child," but he and respondent never married, and appellant did not adopt the child. In March of 1998, respondent "terminated her cohabitation and relationship" with appellant, and moved with the child from California to Wisconsin. Respondent thereafter denied appellant any custody or visitation with the child.

In April of 1998, respondent commenced a declaratory relief action in Wisconsin to terminate any rights of appellant to paternity, custody or visitation. Appellant subsequently filed a complaint in California to establish his paternity and custody rights to the child. The trial court dismissed appellant's action in California,² based upon a finding that he lacked standing to "sue for custody and visitation." After the instant breach of contract action against respondent by appellant was also dismissed, this appeal ensued.

DISCUSSION

Appellant argues that the trial court erred by finding that he has no right to enforce the agreement. He claims that the agreement "with his domestic partner" to "together raise" a child is not illegal or otherwise unenforceable. He also maintains that he "should have been permitted to amend his complaint" to allege causes of action for intentional infliction of emotional distress and unjust enrichment. Respondent contends that appellant's action is barred by the res judicata effect of the prior judgment, and the agreement is unenforceable for public policy reasons.

Our review is governed by well-settled principles. "When reviewing an order sustaining a demurrer without leave to amend, this court must treat the demurrer as admitting all properly pleaded facts, but not contentions, deductions or conclusions of fact or law. We must read the complaint as a whole and give it a reasonable interpretation." (Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591, 1595.) "Regardless of the label attached to the cause of action, we must examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory. Reversible error is committed if the facts alleged show entitlement to relief under any possible legal theory." (Shaolian v. Safeco Ins. Co. (1999) 71 Cal.App.4th 268, 271.) And, "If the complaint, liberally construed, can state a cause of action, or if it is reasonably possible that the plaintiffs can cure the complaint by amendment, the trial court should not sustain a demurrer without leave to amend." (Koch v. Rodlin Enterprises, supra, at p. 1595.)

I. The Res Judicata Effect of the Judgment in the Declaratory Relief Action.

Respondent insists that dismissal of appellant's prior complaint to establish parental relationship precludes the present action under principles of res judicata. Appellant's prior action was brought in the family court under the Uniform Parentage Act (UPA) (Fam. Code, 7600 et seq.), to determine whether a parent and child relationship exists.³ Appellant claimed he was the child's parent, and requested custody and visitation rights. Following a hearing, the trial court found that it lacked "subject matter jurisdiction over child custody and visitation with respect to [the child]," and appellant "lacks standing to sue for custody and visitation of the child who was conceived of artificial insemination . . . with another man's sperm." No appeal was taken from the prior judgment, and it became final.⁴

Under the doctrine of res judicata, "parties to a prior proceeding are precluded from relitigating issues determined in the prior proceeding. (See 7 Witkin, Cal. Procedure [(3d ed. 1985)] Judgment, 253-254.)" (Bob Baker Enterprises, Inc. v. Chrysler Corp. (1994) 30 Cal.App.4th 678, 686.) A prior judgment " '. . . "operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." [Citation.]' (Clark v. Lesher (1956) 46 Cal.2d 874, 880 .)" (Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th 992, 997.) The doctrine "rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of litigants alike require that there be an end to litigation." (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 637; see also Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.)

" 'A prior determination by a tribunal will be given collateral estoppel effect when (1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits.' [Citation.]" (McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138, 1144, emphasis added; see also Old Republic Ins. Co. v. Superior Court (1998) 66 Cal.App.4th 128, 151; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1015.) "The party asserting collateral estoppel bears the burden of establishing these requirements." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 951.) Even if these threshold requirements are established, res judicata will not be applied "if injustice would result or if the public interest requires that relitigation not be foreclosed." (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902.)

Having before us a prior final judgment on the merits in an action between the same parties, we focus on the identity-of-issues requirement to resolve respondent's claim of res judicata. Unless the issue or cause of action in the two actions is identical, the first judgment does not stand as a bar to the second suit. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954; Vary v. Forrest (1988) 201 Cal.App.3d 1506, 1511; Winn v. Board of Pension Commissioners (1983) 149 Cal.App.3d 532, 537.) " 'If "anything is left to conjecture as to what was necessarily involved and decided" there can be no collateral estoppel [citations] . . . . "[I]t must appear . . . that the precise question was raised and determined in the former suit. . . ." ' [Citation.]" (Southwell v. Mallery, Stern & Warford (1987) 194 Cal.App.3d 140, 144.)

To define a cause of action, California follows the primary right theory, which conceives of a cause of...