In re Louie

• Decision Date: 02 September 1997
• Docket Number: Adversary No. 97-3335DM.,Bankruptcy No. 97-30448DDM
• Court: United States Bankruptcy Courts. Ninth Circuit. U.S. Bankruptcy Court — Northern District of California
• Parties: In re Alan LOUIE, Debtor. Mychael ROBINSON, Plaintiff, v. Alan LOUIE, Defendant.

213 B.R. 754 (1997)

In re Alan LOUIE, Debtor.

Mychael ROBINSON, Plaintiff, v. Alan LOUIE, Defendant.

Bankruptcy No. 97-30448DDM, Adversary No. 97-3335DM.

United States Bankruptcy Court, N.D. California.

September 2, 1997.

COPYRIGHT MATERIAL OMITTED

Marty K. Courson, Welch, Olrich & Mori, San Francisco, CA, for Plaintiff.

Waukeen Q. McCoy, San Francisco, CA, Michael Fluetsch, San Rafael, CA, for Debtor/Defendant.

MEMORANDUM DECISION REGARDING CLAIMS BASED ON FEAR OF HIV/AIDS AND FOR SEXUAL BATTERY

DENNIS MONTALI, Bankruptcy Judge.

I. INTRODUCTION

In this nondischargeability adversary proceeding, plaintiff Mychael Robinson ("Robinson") seeks a determination of nondischargeability of debt against debtor and defendant Alan Louie ("Louie") on a variety of theories.

For the reasons discussed below, the court will dismiss Robinson's causes of action for fraud and deceit regarding HIV/AIDS, sexual assault, and intentional infliction of emotional distress for failure to state claims upon which relief can be granted under Fed. R. Civ. Proc. 12(b)(6), made applicable by Fed. R. Bankr.Proc. 7012(b) ("Rule 12(b)(6)"). The court will deny Louie's motion to dismiss Robinson's cause of action for sexual battery, concluding that Robinson has made a sufficient showing to sustain this cause of action as a matter of law.¹

II. BACKGROUND²

In 1991, Robinson and Louie met and began dating. They continued their relationship until November of 1995 when they exchanged commitment vows and moved in together. Robinson and Louie agreed to pool and share equally all of their assets. Further, they agreed that Louie would be the primary source of income and Robinson would be responsible for maintaining the household. Based on this allocation of responsibilities, Robinson closed his two businesses and Louie agreed to support him.

Robinson and Louie, who had previously engaged in protected sexual intercourse, began having frequent, high-risk, unprotected sex after Louie stated to Robinson that Robinson did not need a condom and Louie removed a condom from Robinson.

In December of 1995, Robinson discovered several bottles of Azidothymidine³ hidden in Louie's house. Robinson confronted Louie, who then admitted that he had been HIV-positive since roughly 1984. The parties then terminated their relationship. Robinson has not become HIV-positive, having subsequently tested negative for the virus.

On October 4, 1996, Robinson filed a state court complaint (the "State Court Complaint") for fraud, intentional infliction of emotional distress, breach of partnership and breach of fiduciary duty, among other things. Thereafter, Louie filed a voluntary Chapter 7 petition and Robinson filed this adversary proceeding seeking, inter alia, that any monetary liability asserted in the State Court Complaint be declared nondischargeable under 11 U.S.C. § 523(a)(6) (" § 523(a)(6)").

III. DISCUSSION

Initially, it should be noted that Louie's knowledge of his HIV status gave rise to a duty of disclosure and fair dealing with his sexual partners. This conclusion derives from both the general duty expressed in California Civil Code section 1714 (1997) that "every one is responsible not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill", as well as the more specific duty of disclosure established in cases such as Doe v. Roe, 218 Cal.App.3d 1538, 1545, 267 Cal.Rptr. 564, 567 (1990) (duty to disclose infection with communicable disease prior to intercourse); and Kathleen K. v. Robert B., 150 Cal.App.3d 992, 996, 198 Cal.Rptr. 273, 276 (1984) (defendant breached duty to warn of communicable disease).⁴

If Robinson had plead that he had been infected with HIV by Louie, his causes of action for fraud, intentional infliction of emotional distress and sexual battery would unquestionably be proper and sustainable under California law. See, e.g., Doe v. Roe and Kathleen K. v. Robert B., supra. They would also survive a Rule 12(b)(6) challenge as stating, at the very least, claims under § 523(a)(6).

Robinson has plead, however, that he was exposed to, but not infected with HIV. Consequently this court must determine whether Kerins v. Hartley, 27 Cal.App.4th 1062, 33 Cal.Rptr.2d 172 (1994) (reviewing causes of action arising from patient's exposure to HIV by her physician, without infection) and analogously, Potter v. Firestone Tire and Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993) (assessing availability of damages based on exposure to carcinogens without development of cancer) mandate the conclusion urged by Louie: that Robinson cannot express legally cognizable damages for fear of acquiring AIDS, and cannot therefore support a cause of action arising out of exposure to HIV without infection.⁵

A. Intentional Infliction of Emotional Distress

The elements of the tort of intentional infliction of emotional distress are: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." Davidson v. City of Westminster, 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 258, 649 P.2d 894 (1982). The conduct itself must be so extreme "as to exceed all bounds of that usually tolerated in a civilized community." Id.

A properly plead claim for intentional infliction of emotional distress provides the required elements of a nondischargeable debt under § 523(a)(6). See Impulsora Del Territorio v. Cecchini (In re Cecchini), 780 F.2d 1440, 1443 (9th Cir.1986) (holding that a "wrongful act . . . done intentionally, which necessarily produces harm, and is without just cause or excuse . . . is `willful and malicious' even absent proof of a specific intent to injure").

Here, Louie acted with at least reckless disregard of the almost certain probability of causing Robinson extreme emotional distress, if not infection itself, and Robinson did, in fact, suffer extreme emotional distress as a direct result of Louie's conduct.

In Potter v. Firestone, however, the California Supreme Court stated, in the context of intentional actions which exposed the plaintiff to carcinogens, that a plaintiff must demonstrate that his fear of developing cancer is reasonable. Potter, 6 Cal.4th at 1004, 25 Cal.Rptr.2d 550, 863 P.2d 795. This requires a showing that the "fear is based upon medically or scientifically corroborated knowledge that the defendant's conduct has significantly increased the plaintiff's risk of cancer and that the plaintiff's actual risk of the threatened cancer is significant." Id.

In Kerins, the court of appeal extended the Potter reasonable fear requirement to a case involving exposure to HIV, where there was no subsequent infection.⁶ Kerins, 27 Cal.App.4th at 1075, 33 Cal.Rptr.2d 172. See also Herbert v. Regents of the University of California, 26 Cal.App.4th 782, 31 Cal. Rptr.2d 709 (1994) (holding that the fear of cancer rule applies to fear of AIDS cases). The Kerins court held that because plaintiff had tested negative for HIV more than six months after exposure, the potential of HIV being present in her system but not detected by the HIV test was so minimal that her fear of contracting AIDS was unreasonable as a matter of law. Therefore plaintiff could not demonstrate legally cognizable damages for the purpose of her cause of action for intentional infliction of emotional distress. Kerins, 27 Cal.App.4th at 1075-76, 33 Cal. Rptr.2d 172.

Although neither Potter nor Kerins address the question of whether, in HIV exposure cases, there should be emotional distress damages available for the six month window of anxiety following exposure, during which it is uncertain if exposure has actually occurred,⁷ the decision in Kerins specifically overruled the court of appeal's prior decision in the same case⁸ in which damages were allowed for a reasonable window of anxiety. The Kerins court definitively expressed its opinion that damages for intentional or negligent infliction of emotional distress are not available without actual infection.

Taking Kerins and Potter together, this court is required to view the question of whether Robinson has sustained legally cognizable damages, not while Robinson was suffering the distress and fear about possibly being infected with HIV, but instead after the six month window of anxiety has passed. Once Robinson received HIV negative test results, he was no longer able to sustain a cause of action for intentional infliction of emotional distress.

Robinson contends that his fear is reasonable, because it is possible that he is actually infected with HIV, even though he has not produced antibodies. This assertion does not comport with the current medical consensus that HIV testing is conclusive at six months from infection in almost 100% of cases.⁹ Under Potter and Kerins, Robinson cannot state a claim for intentional infliction of emotional distress, and this cause of action must be dismissed under Rule 12(b)(6).¹⁰

B. Fraud

Robinson charges Louie with "fraud and deceit re HIV/AIDS." He alleges that Louie owed him a duty prior to engaging in sexual relationships to disclose the fact that Louie had tested positive for HIV/AIDS and contends that the duty is based upon a fiduciary obligation arising out of the couples' special relationship and the general duty of a person with venereal disease to avoid sexual contact with uninfected persons, or at least to warn potential sex partners before sexual contact occurs, citing Doe v. Roe, supra. He alleges that Louie's positive test for HIV/AIDS was a material fact since it put Robinson at great risk, that Louie knew that the undisclosed facts were material and that the representations concerning the lack of any need to take normal precautions were...