Nagy v. Nagy

• Decision Date: 25 May 1989
• Docket Number: No. B032200,B032200
• Citation: 210 Cal.App.3d 1262,258 Cal.Rptr. 787
• Court: California Court of Appeals Court of Appeals
• Parties: Peter Paul NAGY, Plaintiff and Appellant, v. Sabina Elizabeth NAGY, Defendant and Respondent.

Page 787

258 Cal.Rptr. 787

210 Cal.App.3d 1262

Peter Paul NAGY, Plaintiff and Appellant, v. Sabina Elizabeth NAGY, Defendant and Respondent.

No. B032200.

Court of Appeal, Second District, Division 7, California.

May 25, 1989.

Review Denied Aug. 17, 1989.

Jaffe & Jaffe and F. Filmore Jaffe, Beverly Hills, for plaintiff and appellant

John M. Pitkin, Laguna Hills, for defendant and respondent.

FRED WOODS, Associate Justice.

Plaintiff appeals from an order of dismissal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and respondent were formerly husband and wife. On September 28, 1987, appellant filed his first amended complaint for intentional infliction of emotional distress and fraud.

Among the allegations of the intentional infliction of emotional distress cause of action were the following:

"On the 21st day of December, 1973, [appellant and respondent] entered into a ceremony of marriage and every (sic) since that day until April 6, 1987, were husband and wife.

"From and after the date of the marriage, to wit, December 21, 1973, plaintiff and defendant actively sought to have children born of this marriage but without success.

"Prior to January 4, 1983, defendant SABINA ELIZABETH NAGY orally represented to the plaintiff that she was pregnant with his child and, on January 4, 1983, CHRISTOPHER ADAM NAGY was born.

"At all times after January 4, 1983, relying upon the representation of defendant SABINA ELIZABETH NAGY that he was the father of Christopher Adam Nagy, plaintiff embraced Christopher Adam Nagy as his son, developing a very close and intimate relationship with Christopher and did and performed all acts that a father would towards a son.

"During the course of the litigation between the parties in the dissolution proceedings and at a deposition of one Julius Nagy, a witness for the plaintiff herein, taken on August 7, 1986, defendant SABINA ELIZABETH NAGY disclosed to the plaintiff, for the first time, that he was not the father of Christopher Adam Nagy, born January 4, 1983.

"Pursuant to a stipulation between the parties and counsel in said dissolution proceeding, an HLA Tissue Test was taken to determine the paternity of Christopher Adam Nagy. The results of the HLA tissue typing demonstrated that since PETER NAGY (plaintiff) does not have the blood grouping in the blood of Christopher Adam Nagy, that he could be excluded as the father of Christopher Adam Nagy.

"Defendant SABINA ELIZABETH NAGY's conduct in having a sexual congress with a person or persons other than plaintiff, causing her pregnancy, and her false and fraudulent representation to plaintiff that he was the father of Christopher, was intentional and malicious and done for the purpose of causing plaintiff to suffer humiliation, mental anguish and emotional and physical distress. Defendant SABINA ELIZABETH NAGY's conduct in confirming that conduct was done with knowledge that plaintiff's emotional and physical distress would thereby increase, and was done with a wanton and reckless disregard of the consequences to plaintiff."

Among the allegations of the fraud cause of action, which incorporated most of the allegations of the first cause of action, were the following:

"At the time defendant made the oral representations (sic) ... defendant knew that said representation was false and fraudulent and was made to plaintiff so as to cause plaintiff to rely thereon.

"At all times after January 4, 1983, relying upon the representation of defendant SABINA ELIZABETH NAGY that he was the father of Christopher Adam Nagy, plaintiff embraced Christopher Adam Nagy as his son, developing a very close and intimate relationship with Christopher and did and performed all acts that a father would towards a son.

"Plaintiff discovered the falsity of said representation on or about August 7, 1986, when defendant disclosed, for the first time, that plaintiff was not the father of Christopher Adam Nagy. This falsity of said representation was later confirmed by the results of an HLA Tissue Typing Test wherein it was determined that plaintiff was excluded as the father of Christopher Adam Nagy.

"As a result of the false and fraudulent representation made by defendant to plaintiff, plaintiff was damaged in an amount to be determined at time of trial."

Attached to the complaint was the judgment of dissolution, which awarded sole custody of Christopher to respondent. The judgment, which permanently restrained appellant from contacting or communicating with Christopher, provided that: "[appellant] waives any right to sue [respondent] or any third person for reimbursement of any monies paid in the past to [respondent] or third parties for or on behalf of the minor child, Christopher."

On November 13, 1987, respondent's demurrer to the first amended complaint was sustained as to both causes of action. An order of dismissal was filed on November 18, 1987.

Appellant filed a timely notice of appeal.

DISCUSSION

Appellant contends that he successfully pled causes of action for intentional infliction of emotional distress and fraud and that the trial court erred in sustaining respondent's demurrer to his complaint. We disagree.

It is well settled that a general demurrer admits the truth of all material factual allegations in the complaint and that the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof, does not concern the reviewing court. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.) The It is also well established under California law that one can sue a spouse for an intentional tort (Self v. Self (1962) 58 Cal.2d 683, 691, 26 Cal.Rptr. 97, 376 P.2d 65) or for a negligent tort. (Klein v. Klein (1962) 58 Cal.2d 692, 693, 26 Cal.Rptr. 102, 376 P.2d 70.) "It is, of course, fundamental in the law of torts that any person proximately injured by the act of another, whether that act be willful or negligent, should, in the absence of statute or compelling reasons of public policy, be compensated." (Id., at pp. 694-695, 26 Cal.Rptr. 102, 376 P.2d 70.) Thus, the issue in this case is whether or not appellant successfully pled causes of action for intentional infliction of emotional distress and fraud and, if so, whether or not there is a compelling statutory or public policy reason not to allow compensation for the alleged injuries.

plaintiff need only plead facts showing that he may be entitled to some relief. (Ibid.) If the appellant in the instant case pled facts entitling him to relief, then the trial court erred in sustaining respondent's demurrer.

I. Fraud

The elements of fraud are: (a) misrepresentation; (b) knowledge of falsity (scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 676, p. 778.)

Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, 197 Cal.Rptr. 783, 673 P.2d 660.) Every element of the cause of action for fraud must be alleged in the proper manner (i.e. factually and specifically), and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. (Ibid.)

Appellant pled that while married to appellant, respondent knowingly misrepresented to him that he was the father of her son, Christopher Adam Nagy, who was born when the parties were married. Appellant further alleged that in reliance upon respondent's misrepresentation, he developed "a very close and intimate relationship with Christopher and did and performed all acts that a father would towards a son." As a result of the misrepresentation, appellant alleged that he suffered emotional distress and that he "was damaged in an amount to be determined at the time of trial."

Fraudulent representations which work no damage cannot give rise to an action at law. (Abbot v. Stevens (1955) 133 Cal.App.2d 242, 247, 284 P.2d 159.) An allegation of a definite amount of damage is essential to stating a cause of action. (Ibid.) Appellant's complaint was defective in that he did not allege a definite amount of damage.

In addition, for a viable cause of action for fraud, the pleading must show a cause and effect relationship between the fraud and damages sought; otherwise no cause of action is stated. (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 12, 101 Cal.Rptr. 499.)

As part of the dissolution judgment, appellant waived his right to sue for "reimbursement of any monies paid ... for or on behalf of the minor child, Christopher." Furthermore, we are not aware of any law which would permit a person to recover damages for developing an intimate relationship with a child and performing all the acts of a parent. Although damages for emotional distress can be recovered in a fraud cause of action, such damages have been allowed only as an aggravation of other damages. (See Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 921, 114 Cal.Rptr. 622, 523 P.2d 662; Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173.) Since we conclude that appellant has not successfully pled other, or indeed any legally recognizable damages, damages for emotional distress alone are not recoverable.

A tort is "a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages. It does not lie within the power of any judicial system, however, to At the hearing on respondent's demurrer, appellant declined another opportunity to amend his pleadings, stating that he had nothing more to plead. In addition to appellant's failure to plead damages specifically and factually, we can discern no basis upon which appellant could have amended his complaint to successfully plead a cause of...