Richard P. v. Vista Del Mar Child Care Service

• Decision Date: 11 June 1980
• Citation: 106 Cal.App.3d 860,165 Cal.Rptr. 370
• Parties: In the Matter of the Adoptive Parents of RICHARD P., Plaintiffs and Appellants, v. VISTA DEL MAR CHILD CARE SERVICE, a Corporation, Defendants and Respondents. Civ. 56496.
• Court: California Court of Appeals Court of Appeals

Page 370

165 Cal.Rptr. 370

106 Cal.App.3d 860

In the Matter of the Adoptive Parents of RICHARD P., Plaintiffs and Appellants, v. VISTA DEL MAR CHILD CARE SERVICE, a Corporation, Defendants and Respondents.

Civ. 56496.

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

June 11, 1980.

Hearing Denied Aug. 6, 1980.

Francis S. Maas, Los Angeles, for plaintiffs and appellants.

Revere, Citron & Wallace, and Frank Revere, Los Angeles, for defendants and respondents.

BEACH, Associate Justice.

Plaintiffs sued defendant after discovering that a child whom they had adopted through defendant several years earlier was suffering from "extreme emotional and adjustment problems." The trial court sustained defendant's demurrer to the first amended complaint and, following plaintiffs' failure to amend the complaint within the 30-day period provided, ordered the action dismissed. Plaintiffs appeal from the judgment of dismissal. We affirm.

The thrust of the complaint is that an adoption agency may be held liable in tort on a theory of intentional or negligent misrepresentation in failing to warn the adoptive parents that the infant's premature birth might in the future lead to health problems, either physical or mental. As to an adoption agency's tortious liability based on negligence, recently the court in Smith v. Alameda County Social Services Agency (1979) 90 Cal.App.3d 929, 153 Cal.Rptr. 712, refused, based on reasons of public policy, to recognize tortious liability on the part of an adoption agency that had negligently failed to carry out its responsibilities in placing the child, who incidentally had brought the lawsuit against the agency, for adoption. Similarly, in the matter before us, we dispose of the cause of action based on negligent misrepresentation on grounds of public policy, which shall be discussed in detail later in this opinion. Because of our holding, we do not discuss the question of the cause of action being barred by the applicable statute of limitations, one of the grounds for the demurrer, though our review of the record at bench and of appropriate statutory and case law has convinced us this too was a proper ground on which to sustain the demurrer.

FACTS:

As alleged in the complaint, the facts appear as follows: On March 4, 1970, defendant Vista Del Mar Child Care Service (hereafter Vista) placed an infant male child ¹ (hereafter Gregory) in the home of plaintiffs (hereafter the plaintiffs) at the plaintiffs' request. Vista informed the plaintiffs that Gregory was premature and had large earlobes but that he otherwise was a healthy child. Commencing on March 5, 1970, the plaintiffs consulted defendant Dr. K., ² a pediatrician, to determine Gregory's mental and physical fitness. Apparently, Dr. K. found Gregory to be in good health, and on December 14, 1970, the superior court formally approved Gregory's adoption by the plaintiffs.

On May 28, 1973, the plaintiffs discovered that Gregory was suffering from "severe neurological damage, . . . hyperkenesia, and neurological immaturity." Approximately three years later, in July 1976, Dr. K. told the plaintiffs that Gregory's emotional and medical problems were predictable at his birth. Dr. K. based his opinion on a report prepared by Vista on February 18, 1970, prior to Gregory's placement in the plaintiffs' home the following March. The report, entitled "Final Examination Record, Vista Del Mar Child-Care Service," stated that Gregory "was premature and had a poor suck for one week. At the present time there is no neurological disease . . . recommend adoption." A copy of that same report had also been furnished by Vista to the plaintiffs at the time of Gregory's adoption.

The plaintiffs brought suit against Vista and Dr. K. on April 26, 1977, alleging fraud, negligence, breach of contract, breach of implied warranty, breach of express warranty, strict liability in tort, and medical malpractice.

Vista interposed a demurrer to the complaint on the grounds that it failed to state facts sufficient to constitute a cause of action and that the actions were barred by the statute of limitations. The trial court sustained the demurrer with leave to amend. When the plaintiffs chose to stand on the complaint, the court ordered a dismissal of the action with respect to Vista.

ISSUES:

1. Did the plaintiffs properly plead fraud and misrepresentation?

2. Does the law recognize a cause of action in tort, against an adoption agency, for the unintentional but negligent misrepresentation in the placement of a child?

3. If the present law does not recognize such a cause of action, should it?

4. Does an adoption agency impliedly "warrant" good health of the adopted child, akin to product warranty?

DISCUSSION:

A demurrer reaches only those defects which appear on the face of the complaint or which are judicially noticeable. (Johnson Rancho County Water Dist. v. County of Yuba (1963) 223 Cal.App.2d 681, 684, 35 Cal.Rptr. 828.) It admits all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) A complaint which fails to state facts sufficient to constitute a cause of action is demurrable. (Code of Civ.Proc., § 430.10.) Where, as here, a party declines to avail itself of leave to amend its complaint after a demurrer thereto has been sustained, it must stand upon its pleading; and if the complaint is objectionable on any ground, the judgment of dismissal must be affirmed. (California Trust Co. v. Cohn (1932) 214 Cal. 619, 623, 7 P.2d 297; Hendricks v. Osman (1946) 72 Cal.App.2d 465, 466-467, 164 P.2d 545.)

The gravamen of the plaintiffs' complaint concerns fraud or deceit by Vista. Fraudulent representations, to constitute ground for relief, must be as to existing and material facts; predictions of future events are ordinarily considered non-actionable expressions of opinion. (Daniels v. Oldenburg (1950) 100 Cal.App.2d 724, 727, 224 P.2d 472; Eade v. Reich (1932) 120 Cal.App. 32, 35, 7 P.2d 1043; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 447, p. 2712.)

In the present case, it appears from the complaint that Vista informed the plaintiffs prior to their adoption of Gregory that Gregory was premature, had large earlobes and "had a poor suck for one week" but that at that time he had no neurological damage and was in excellent physical and mental health. No facts are alleged in the complaint from which it could be inferred that Vista's statements as to Gregory's health at the time of his adoption were false. As appears from the complaint, the plaintiffs' own pediatrician, Dr. K., whom they consulted regarding Gregory's health the day after Vista had placed Gregory with them, found no health problems, thus resulting in the plaintiffs' formal adoption of Gregory in December 1970, some eight months after Gregory's placement with them. The plaintiffs, however, claim that Vista's statement that Gregory was in excellent health and thus, to use the complaint's phraseology, "a proper subject for adoption" not only was a factual representation of Gregory's health as it existed at the time of his placement in the plaintiffs' household but also constituted a representation that in the future too Gregory would enjoy excellent health, which representation the plaintiffs allege was false because some three years after his placement with the plaintiffs Gregory exhibited severe emotional problems. As we noted earlier, predictions as to future events are deemed expressions of opinion, and thus not actionable. (Daniels v. Oldenburg, supra, 100 Cal.App.2d 724, 727, 224 P.2d 472.) There is an exception to that rule. When the speaker has knowledge of facts not warranting the opinion, or the opinion reasonably tends to induce the other party to consider and rely upon such representation as a fact, there...