Richard P. v. Superior Court

• Decision Date: 14 July 1988
• Docket Number: No. A039580,A039580
• Citation: 202 Cal.App.3d 1089,249 Cal.Rptr. 246
• Court: California Court of Appeals Court of Appeals
• Parties: , 57 USLW 2100 RICHARD P., Petitioner, v. SUPERIOR COURT of County of San Mateo, Respondent; GERALD B. et al., Real Parties in Interest.

Page 246

249 Cal.Rptr. 246

202 Cal.App.3d 1089, 57 USLW 2100

RICHARD P., Petitioner, v. SUPERIOR COURT of County of San Mateo, Respondent GERALD B. et al., Real Parties in Interest.

No. A039580.

Court of Appeal, First District, Division 2, California.

July 14, 1988.

As Modified on Denial of Rehearing Aug. 12, 1988.

Allan R. Moltzen, Jr., Russell and Moltzen, Palo Alto, for petitioner.

Donald J. Dowling, Ross, Hackett, Dowling, Valencia & Walti, San Bruno, for real parties in interest.

SMITH, Associate Justice.

Petitioner Richard P. seeks a writ of mandate to compel the superior court to set aside its order overruling a demurrer to a complaint for damages filed against him by real parties in interest Gerald B., Ludelle M. and Donald M. We conclude that the trial court erred in overruling the demurrer and consequently issue a peremptory writ of mandate.

Richard and Linda B., then the wife of Gerald B., had an affair while Linda and Gerald were married and cohabiting. During the course of this affair, two children were born to Linda: Amanda, born August 27, 1983, and Adam, born October 17, 1984. On October 2, 1985, Linda filed a petition for legal separation in which she alleged that the children were the issue of her marriage to Gerald. ¹

Richard filed a complaint to establish his paternity of Amanda and Adam on March 24, 1986. His action was consolidated with Linda and Gerald's dissolution action in July 1986. Gerald filed an answer to that complaint denying that Richard was the father of the children and alleging that the children were born to his wife while she was cohabiting with him and that he was not impotent or sterile during the period the children were conceived. On January 6, 1987, a stipulated judgment was entered. The judgment provided in pertinent part that Linda and Richard are the natural parents of Amanda and Adam and that the last name of the children be changed to that of Richard. Gerald waived any claim as either natural or presumptive father of the children. He also waived any claim against Linda relating to the parentage of the children, whether based on deceit, fraud or otherwise. Joint legal custody of the children was awarded to Linda and Richard with Linda having physical custody. Both Richard and Gerald were allotted scheduled visitation with the children. Richard agreed to pay Linda $400 per month per child for child support and to maintain medical and dental coverage for the children. Linda waived any claim for child support arrearages from Gerald and Gerald waived any claim for refund of child support payments previously made to Linda.

The complaint in this action was filed on February 13, 1987, by Gerald and his mother and step-father, Ludelle and Donald M. It purported to state claims against Richard for fraud and intentional infliction of emotional distress. Richard demurred to the complaint for failure to state a cause of action. On July 27, 1987, the trial court entered its order overruling the demurrer. This petition for a writ of mandate followed. We issued an order to show cause and placed the matter on calendar.

The first cause of action of the complaint alleges that Richard, who knew Linda was married to Gerald, had sexual intercourse with Linda on or about December 1982, with the intent of making her pregnant; that subsequently Amanda was born in August 1983 and resided with Gerald; that Richard knew approximately two weeks after the child's conception that he was the father of Amanda; that Richard subsequently became godfather of Amanda with Gerald's consent; that Richard was aware from December 1982 through February 14, 1986, that Gerald believed himself to be the father of Amanda; that Richard was at all times aware that Gerald was supporting Amanda and that he and Ludelle and Donald were becoming emotionally attached to the child; that Richard had a duty to disclose the true facts of Amanda's parentage to Gerald and failed to make such disclosure; and that such duty to disclose arose from Richard's statutory and equitable duty to support his illegitimate child and because Richard knew that the true facts of Amanda's parentage were neither known nor readily accessible to Gerald, and because Gerald reposed a special trust and confidence in Richard as the godfather of the child.

The first cause of action alternatively alleged that on or about August 27, 1983, Richard falsely represented that Gerald was the father of Amanda and specifically congratulated Gerald on becoming a father to the child; that the representations were known by Richard to be false and were made with the intent to defraud and deceive Gerald and to induce him to support the child; that in reliance upon these representations Gerald did support the child and that his reliance was justified because he was then married to the natural mother of the child. It was then alleged that as a result of Richard's fraud and deceit Gerald was induced to support the child and thereby damaged in a presently undetermined amount and that Richard acted with oppression, fraud and malice, thereby entitling Gerald to punitive damages in the sum of $250,000.

The second cause of action contained virtually identical allegations with respect to the facts concerning Adam's parentage. Appropriate modifications were made to reflect Adam's birth date of October 27, 1984. Additionally, it was alleged that Richard knew approximately four weeks after the conception of this child, rather than two weeks (as alleged in the case of Amanda), that he was the father of Adam.

The third cause of action alleged that Richard intentionally misled Gerald and Ludelle and Donald into believing that Gerald was the father of Amanda despite the fact that there were many occasions on which Richard and the plaintiffs socialized and that Richard thereby had the opportunity to reveal the facts of Amanda's true parentage; that the plaintiffs were not informed of Richard's paternity of Amanda until February 14, 1986, after they had emotionally bonded with the child who was then two-and-a-half years of age; that Richard's conduct was intentional and malicious and done for the purpose of causing, and was substantially certain to cause, Gerald to suffer humiliation, mental anguish, and emotional and physical distress; and that Richard's acts were done with a wanton and reckless disregard of the consequences to all three plaintiffs. It was further alleged that as a result of Richard's acts, the three plaintiffs suffered severe humiliation, nausea, mental anguish, and emotional and physical distress, entitling them to compensatory damages in a presently undetermined amount and punitive damages in the amount of $250,000 for each plaintiff.

The fourth cause of action contained allegations virtually identical to those set forth in the third cause of action but relating to the facts concerning the parentage of Adam rather than Amanda. An appropriate adjustment was made to reflect Adam's age of one year and four months at the time the plaintiffs learned that Richard was the father of the children. Additionally, this cause of action sought punitive damages in the amount of $1,000,000.

Richard contends that the action herein is barred by Civil Code section 43.5, sometimes referred to as "anti-heart balm" legislation (see In re Marriage of Buckley (1982) 133 Cal.App.3d 927, 931-932, 184 Cal.Rptr. 290), which provides as follows: "No cause of action arises for: (a) Alienation of affection. (b) Criminal conversation. (c) Seduction of a person over the age of legal consent. (d) Breach of promise of marriage." He argues that although the action is styled as one for fraud and intentional infliction of emotional distress, the claims alleged are merely camouflaged claims for criminal conversation or alienation of affection and, as such, are barred by the foregoing statute. He alternatively characterizes the action as an impermissible extension of "heart balm" actions. Real parties in interest, on the other hand, contend that the "anti-heart balm" legislation has no application here because the lawsuit is based upon the fraudulent and intentional acts of Richard after he engaged in sexual intercourse with Linda.

We need not determine whether this action is one that technically falls within the scope of the "anti-heart balm" legislation, for we conclude that it is barred by the public policy of this state.

We agree with real parties in interest that they have alleged words which normally would suffice to state tort causes of action for fraud and intentional infliction of emotional...