Hegyes v. Unjian Enterprises, Inc.

Citation286 Cal.Rptr. 85,234 Cal.App.3d 1103
Decision Date30 September 1991
Docket NumberNo. B047481,B047481
CourtCalifornia Court of Appeals
Parties, 60 USLW 2249 Cassondra HEGYES, a Minor, etc., Plaintiff and Appellant, v. UNJIAN ENTERPRISES, INC., Defendant and Respondent.

David M. Harney and Thomas Kallay, Los Angeles, for plaintiff and appellant.

Haight, Brown & Bonesteel, Michael J. Bonesteel, Robert L. Kaufman and Rebecca D. Wynn, Santa Monica, for defendant and respondent.

FRED WOODS, Associate Justice.

Appeal from a judgment of the Los Angeles County Superior Court, the Honorable Robert P. Schifferman, Judge presiding, dismissing the action of plaintiff/appellant following the sustaining of a demurrer to the complaint without leave to amend. We affirm.


Minor plaintiff, Cassondra Hegyes, appeals from a judgment entered after the court below sustained defendant's demurrer to her complaint for preconception negligence. In 1985, plaintiff's mother and guardian ad litem, Lynn O'Hare Hegyes, was involved in a car accident with a vehicle driven by defendant's employee. She sued defendant for injuries she sustained as a result of that accident and settled that action. Two years later she became pregnant and, subsequently, gave birth to plaintiff, who was born prematurely and allegedly suffers from injuries relating to premature birth.

Plaintiff now claims that the negligent conduct of employees of defendant caused her injuries and seeks damages therefor. Defendant demurred on the ground that no legal duty existed under the alleged facts. The trial court agreed, finding that recognition of plaintiff's claim would constitute an unwarranted extension of the duty of care. Accordingly, defendant's demurrer was sustained without leave to amend, and a judgment of dismissal was entered. It is from that judgment that plaintiff appeals.

A. The Complaint

On January 24, 1989, plaintiff Cassondra Hegyes (hereinafter "Hegyes" or "plaintiff") filed her complaint and commenced this negligence action against defendants Donald Wayne George, Office Supply Company, Unjian Enterprises. In that complaint, she alleged that the corporate defendant, Unjian Enterprises, Inc., dba Office Supply Company (hereafter "defendant"), was the owner of a passenger vehicle involved in an automobile accident on July 4, 1985, while it was being operated by defendant's employee, Donald George. 1 Lynn O'Hare Hegyes (hereinafter "O'Hare") was allegedly injured in that accident. It is claimed that, as a result of that accident, O'Hare was fitted with a lumbo-peritoneal shunt.

In 1987, O'Hare became pregnant with plaintiff. During that pregnancy, the fetus compressed the lumbo-peritoneal shunt and, in order to avoid further injury to O'Hare, 2 plaintiff was delivered 51 days premature, by Cesarean section on October 31, 1987. Plaintiff alleged that the personal injuries she sustained were a proximate result of the negligence of defendants.

B. The Demurrer

On or about November 1, 1989, defendant served its demurrer to plaintiff's complaint. That demurrer included a request that the court take judicial notice of the complaint (case no. NCC029844B) that O'Hare had filed on June 6, 1986, in Los Angeles Superior Court, pertaining to the same automobile accident that is the subject of plaintiff's complaint in the instant action. According to defendant, O'Hare's suit was settled before plaintiff's case was filed, and defendant was released from liability, for the injuries to O'Hare allegedly now giving rise to plaintiff's lawsuit (i.e., the placement of the lumbo-peritoneal shunt).

Defendant's demurrer challenged the sufficiency of plaintiff's complaint on several grounds, one of which was the absence of any legal duty of care. Defendant contended that no legal duty was owed by defendant to plaintiff under the facts presented since claims for preconception negligence involve a special "physician-patient" relationship which gives rise to a duty to the subsequently conceived "foreseeable" fetus. In the absence of such a special relationship, defendant contended that a legal duty had never been found under California law.

Defendant also claimed that plaintiff's injuries were not reasonably foreseeable.

Finally, defendant asserted that the complaint failed to state facts sufficient to constitute a cause of action for negligence or negligence per se. Defendant noted that the word "duty" appeared nowhere in plaintiff's complaint and that no facts establishing a legal duty were alleged. Defendant further argued that plaintiff was not in the class of persons sought to be protected through enactment of the Vehicle Code.

On November 22, 1989, plaintiff filed her opposition to defendant's demurrer. In that opposition, plaintiff contended that "a cause of action may be maintained by [plaintiff] as against [defendants]."

The opposition raised briefly the issue of foreseeability, and argued that a minor plaintiff may maintain an action for preconception negligence, but did not address the absence of authority for such preconception negligence actions against third parties who did not bear a "special relationship" to plaintiff. Plaintiff did not attempt to join issue on the question of defendant's duty or lack thereof.

On or about November 28, 1990, defendant served its response to plaintiff's opposition. In that response, defendant noted plaintiff's failure to distinguish the present case from those for preconception professional negligence or product liability, where there existed a "special relationship" between the parties. Defendant emphasized that, absent such relationships, courts had not found the existence of a legal duty owed by a defendant to a later conceived plaintiff.

C. The Trial Court's Ruling

On December 1, 1989, defendant's demurrer was heard. The court read and considered the opposition, which had conceded that "this is a case of first impression."

While plaintiff requested leave to amend, no new or different "facts" or allegations were cited by plaintiff in response to the court's specific inquiry regarding how or in what fashion plaintiff would amend the complaint.

After considering the arguments of counsel, the trial court sustained the demurrer without leave to amend on the ground that recognition of such a cause of action would "be an unwarranted extension of a duty of care."

D. The Judgment and Appeal

On December 19, 1989, the notice of entry of judgment was filed. Plaintiff filed a timely notice of appeal.


This appeal presents a single issue, which may be framed as follows: Does a negligent motorist owe a legal duty of care to the subsequently conceived child of a woman who is injured in an automobile accident?

A. The trial court correctly denied plaintiff leave to amend since it was evident as a matter of law that defendant owed plaintiff no legal duty of care.

The function of a demurrer is to test the legal sufficiency of a pleading. (Beauchene v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 342, 344, 151 Cal.Rptr. 796.) In a case such as this one, where a demurrer has been sustained without leave to amend, the function of the appellate court is to determine whether there was clear error or abuse of discretion by the trial court. As stated in Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1330, 231 Cal.Rptr. 355: " '[A]ll intendments weigh in favor of the regularity of the trial court proceedings and the correctness of the judgment. Unless clear error of abuse of discretion is demonstrated, the trial court's judgment of dismissal following the sustaining of the defendants' demurrer will be affirmed on appeal.' " The party asserting that there was an abuse of discretion has the burden of proof. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal.Rptr. 718, 703 P.2d 58.)

Plaintiff in this case seeks damages for defendant's alleged preconception negligence. However, she has failed to allege or demonstrate that defendant owed her any duty of care and that her injuries were reasonably foreseeable. More telling, is that she has failed to show how any amendment would cure the defects in her pleading.

A complaint which lacks allegations of fact to show that a legal duty of care was owed is fatally defective. (Jones v. Grewe (1987) 189 Cal.App.3d 950, 954, 234 Cal.Rptr. 717.) The existence of such a duty is properly challenged by demurrer and is a question of law for the court. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 798-799, 223 Cal.Rptr. 206; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

Here, the trial court correctly held that no legal duty of care existed. Plaintiff urges this court to recognize a novel approach to the tort of negligence, which abandons the concept of duty and works backwards from causation. We note that plaintiff did not raise a causation issue in the trial court. Even though plaintiff raises a causation issue for the first time on appeal, we are compelled to point out that the law is clearly to the contrary in that the existence or nonexistence of "duty" is the initial obstacle which must be mastered before any liability for negligence is legally permissible.

In the alternative, plaintiff argues in her opening brief on appeal that the trial court's decision may have been derailed by describing this case as a "wrongful life" case. We do not find such description to be totally without merit. "Wrongful life," as a judicially and statutorily recognized cause of action in this state, is the most analytically similar established cause of action to plaintiff's claim and as such, was properly so examined by the trial court. Moreover, even if this be error, which we do not so declare, plaintiff invited the error and may not now try to benefit therefrom. Several times in the trial...

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