Perry v. Atkinson

• Decision Date: 25 September 1987
• Citation: 240 Cal.Rptr. 402,195 Cal.App.3d 14
• Parties: Lee PERRY, Plaintiff and Appellant, v. Richard C. ATKINSON, Defendant and Respondent. D004425.
• Court: California Court of Appeals Court of Appeals

Page 402

240 Cal.Rptr. 402

195 Cal.App.3d 14

Lee PERRY, Plaintiff and Appellant, v. Richard C. ATKINSON, Defendant and Respondent.

D004425.

Court of Appeal, Fourth District, Division 1, California.

Sept. 25, 1987.

As Modified on Denial of Rehearing Oct. 15, 1987.

Review Denied Jan. 7, 1988.

[195 Cal.App.3d 15] Suuzen Ty Anderson, San Diego, for appellant.

Gray, Cary, Ames & Frye and Marilyn L. Huff, San Diego, for respondent.

HUFFMAN, Associate Justice. ^*

Plaintiff Lee Perry appeals a judgment favoring defendant Richard Atkinson after the court granted summary adjudication of

issues and sustained Atkinson's demurrer to Perry's second amended complaint for fraud and deceit.

FACTUAL ¹ AND PROCEDURAL BACKGROUND

Perry and Atkinson met in July 1976. Although Atkinson was married, he and Perry began having an intimate relationship which continued for more than a year. During that year, Perry and Atkinson developed a relationship of trust and confidence. In August 1977 Perry learned she was pregnant with Atkinson's child. When Perry told Atkinson, he became upset and urged her to have an abortion. Perry did not want to have an abortion, but Atkinson persisted. He told Perry that although he would like her to have his child, he wanted to postpone doing so for a year. He promised Perry that even if they were not together in a year, he would conceive a child with her by artificial insemination.

Based on Atkinson's promise, Perry terminated her pregnancy by an abortion, causing her physical and mental pain. After the abortion, Perry discovered Atkinson had never intended to keep his promise of another baby. As a result, Perry became depressed, requiring psychiatric treatment, incurring extensive medical bills and losing six months of earnings.

Perry sued Atkinson for fraud and deceit and intentional infliction of emotional distress. In essence, Perry alleged she terminated her pregnancy by an abortion based on Atkinson's promise he would impregnate her the following year either through sexual intercourse or artificial insemination. Perry alleged Atkinson's representation was false; he had no intention of impregnating her again; and he made these statements to deceive her in order to have her abort the pregnancy. As to Perry's first amended complaint, Atkinson moved for summary judgment or alternatively summary adjudication of issues. Before the hearing on Atkinson's motions, Perry filed a second amended complaint, adding allegations of physical harm and further facts regarding her confidential relationship with Atkinson. Atkinson demurred to Perry's second amended complaint.

After hearing, the court rendered its written decision, denying Atkinson's motion for summary judgment as to Perry's cause of action for intentional infliction of emotional distress, and granting Atkinson's motion for summary adjudication as to the fraud and deceit cause of action. The court reasoned public policy prohibits a cause of action for fraud and deceit concerning intimate matters involving procreation. The court concluded that to control the promises of the parties by legal action would constitute an unwarranted governmental intrusion into matters affecting the individual's right to privacy. The court also sustained without leave to amend Atkinson's demurrer to Perry's fraud and deceit cause of action in her second amended complaint, reasoning such cause of action would violate public policy and constitute an unwarranted governmental intrusion into matters affecting an individual's right to privacy. The court entered judgment in favor of Atkinson on the cause of action for fraud and deceit. ² We conclude on the facts here no cause of action exists for fraud and deceit and accordingly affirm the judgment.

DISCUSSION

I

Perry contends the court erred in granting summary adjudication of issues as Perry filed her first amended complaint on September 22, 1982, and her second amended complaint, with the court's permission, on July 24, 1985. The court heard Atkinson's summary judgment motion to Perry's first amended complaint on September 27, 1985 and took the matter under submission. The court issued its memorandum decision on October 3, granting summary adjudication as to Perry's cause of action for fraud and deceit in her first amended complaint. On October 4, the court heard Atkinson's demurrer to the fraud and deceit cause of action in her second amended complaint, but ruled that issue was moot in light of its memorandum decision granting summary adjudication.

to her first amended complaint because her second amended complaint superseded the first. She asserts once the court sustained the demurrer without leave to amend, it had nothing to summarily adjudicate as to that cause of action.

On October 15, Perry filed a motion for reconsideration, arguing, in part, the summary adjudication was improper because the first amended complaint had been superseded by the second. On October 28, the court issued two orders: one granting summary adjudication of the fraud and deceit cause of action in Perry's first and second amended complaints and another sustaining without leave to amend Atkinson's demurrer to the fraud and deceit cause of action in Perry's second amended complaint. On November 1, the court denied Perry's reconsideration motion.

We agree with Perry the court improperly granted summary adjudication as to the fraud and deceit cause of action in her first amended complaint. The record reflects the court granted Perry leave to file her second amended complaint with respect to her causes of action for fraud and deceit and intentional infliction of emotional distress. Once Perry did so, that complaint superseded her first amended complaint. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884, 92 Cal.Rptr. 162, 479 P.2d 362; Avalon Painting Co. v. Alert Lbr. Co. (1965) 234 Cal.App.2d 178, 182, 44 Cal.Rptr. 90.) Thus, we treat the summary adjudication order as void and consider the appeal as properly from the sustaining of a demurrer without leave to amend.

II

Perry contends her second amended complaint states a cause of action for fraud and deceit which is factually and legally sufficient to withstand Atkinson's demurrer. The gravamen of Perry's complaint is that Atkinson defrauded her by promising to impregnate her if she had an abortion--a promise he did not intend to keep--on which he intended her to rely and on which she did rely to her detriment. Such misrepresentation, she asserts, is actionable as a tort.

In deciding whether Perry can state a cause of action for fraud and deceit, our inquiry must be directed to the specific conduct giving rise to such a claim. Although Perry's cause of action is couched in terms of a tort, the behavior of which she complains is Atkinson's breach of a promise to impregnate her after she had an "unwanted" abortion. Thus, the issue before us is whether Perry has a cause of action for fraudulent breach of a promise to impregnate.

In Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640, 164 Cal.Rptr. 618, the defendant father (Stephen) in a paternity action cross-complained against his child's mother (Roni), alleging Roni had falsely represented she was taking birth control pills and in reliance on that representation, Stephen had sexual relations with her resulting in the birth of a child he did not want. The court held Roni's conduct towards Stephen was not actionable, reasoning "although Roni may have lied and betrayed the personal confidence reposed in her by Stephen, the circumstances and the highly intimate nature of the relationship wherein the false representations may have occurred, are such that a court should not define any standard of conduct therefor." (Id. at p. 643, 164 Cal.Rptr. 618.) The court further stated that Stephen's claim of tortious misrepresentation was "nothing more than asking the court to supervise the We find the court's reasoning in Stephen K. persuasive as applied to the facts here. Although Atkinson may have deliberately misrepresented his intentions to Perry in order to persuade her to have the abortion, their procreative decisions were so intensely private that we decline to intervene. Tort liability cannot apply to the choice, however motivated, of whether to conceive or bear a child.

promises made between two consenting adults as to the circumstances of their private sexual conduct. To do so would [195 Cal.App.3d 19] encourage unwarranted governmental intrusion into matters affecting the individual's right to privacy." (Id. at pp. 644-645, 164 Cal.Rptr. 618.)

Further, the California Legislature recognizes that certain sexual conduct and interpersonal decisions are, on public policy grounds, outside the realm of tort liability. For example, Civil Code section 43.5 provides in part that no cause of action exists for alienation of affection, seduction of a person over the age of legal consent, or breach of promise of marriage. Also, Civil Code section 43.4 precludes a cause of action for a fraudulent promise to marry or cohabit after marriage, entailing not only the marriage ritual but fulfillment of all "matrimonial obligations and expectations." (Boyd v. Boyd (1964) 228 Cal.App.2d 374, 377, 39 Cal.Rptr. 400.) If no cause of action can exist in tort for a fraudulent promise to fulfill the rights, duties and obligations of a marriage relationship, then logically no cause of action can exist for a fraudulent promise by a married man to impregnate a woman not his wife. (See Langley v. Schumacker (1956) 46 Cal.2d 601, 604-607, 297 P.2d 977 (Spence, J., dissenting) [superseded by Civ.Code, § 43.4 as stated in Boyd v. Boyd, supra, 228 Cal.App.2d at p. 376, 39 Cal.Rptr. 400].)

Perry contends Atkinson's...