Steve H. v. Wendy S.

• Decision Date: 27 August 1997
• Docket Number: No. B107640,B107640
• Parties: Previously published at 57 Cal.App.4th 379 57 Cal.App.4th 379, 97 Cal. Daily Op. Serv. 6992, 97 Daily Journal D.A.R. 11,222 STEVE H., Plaintiff and Appellant, v. WENDY S., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 90

67 Cal.Rptr.2d 90

Previously published at 57 Cal.App.4th 379

57 Cal.App.4th 379, 97 Cal. Daily Op. Serv. 6992,

97 Daily Journal D.A.R. 11,222

STEVE H., Plaintiff and Appellant, v. WENDY S., Defendant and Respondent.

No. B107640.

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

Aug. 27, 1997.

Review Granted Nov. 12, 1997.

Review Dismissed and Cause is Remanded to the Court of Appeal July 16, 1998.

Trope and Trope and Thomas Paine Dunlap, Los Angeles, for Plaintiff and Appellant.

Law Offices of B. Bruce Kittrell, B. Bruce Kittrell, Los Angeles, and Richard A. Lense, Redondo Beach, for Defendant and Respondent.

MASTERSON, Associate Justice.

While she was married to Steve, Wendy gave birth to a daughter, Stephanie. During dissolution proceedings, Wendy challenged Steve's paternity by seeking to introduce blood test results showing that Steve was not Stephanie's biological father. Wendy's challenge failed, and the family court declared Steve to be Stephanie's legal father.

Steve then filed this civil action against Wendy, seeking to recover for the emotional distress he suffered in response to Wendy's effort to terminate his parental relationship with Stephanie. The trial court sustained Wendy's demurrer to the complaint without leave to amend, concluding that the action was barred by public policy considerations. We agree and affirm.

BACKGROUND

The operative complaint alleged as follows. ¹ Steve and Wendy were married on January 1, 1990. Stephanie was born on November 25, 1990. The day after Stephanie's birth, Wendy learned that H.T., not Steve, was Stephanie's biological father. Wendy had had a consensual sexual relationship with H.T. before and during her marriage to Steve. Wendy did not tell Steve that Stephanie was not his child. Steve therefore treated Stephanie as his natural daughter and developed an extremely close paternal bond with her.

Steve and Wendy separated on May 31, 1993. Steve filed a petition for dissolution in which he sought sole legal and physical custody of Stephanie, whom he alleged was his child. Wendy's response alleged that Stephanie was not Steve's child.

In conjunction with the parties' separation, Wendy devised a plan to interfere with Steve's relationship with Stephanie. As part of that scheme, in June 1993, Wendy told Steve that Stephanie was not his daughter but was conceived when Wendy was raped. ² Wendy thereby induced Steve to have a blood test, knowing that the test would prove that he was not Stephanie's biological father. In fact, that is what the test showed.

In lying to Steve about being raped, inducing him to take a blood test, and concealing from him that he was not Stephanie's biological father, Wendy acted deliberately and intentionally so as to cause Steve severe emotional distress. Wendy hoped to interfere with and sever Steve's bond with Stephanie.

In furtherance of her scheme, Wendy attempted to introduce the blood test results in the dissolution proceeding in order to challenge Steve's paternity. However, the family court found that Steve was entitled to the conclusive presumption of paternity (Fam.Code, § 7540) and ruled that Steve was Stephanie's legal father. That determination was affirmed on appeal. (In re the Marriage of Steve H.H. and Wendy S. (Oct. 18, 1995) B087376 [nonpub. opn.].)

In July 1994, Steve filed this action against Wendy, alleging causes of action for fraud, intentional infliction of emotional distress, and negligent infliction of emotional distress. By way of a second amended complaint filed in May 1996, Steve alleged only two causes of action, for abuse of process and intentional infliction. Wendy demurred to the amended pleading. The trial court sustained the demurrer without leave to amend and dismissed the action. Steve filed a timely notice of appeal.

On appeal, Steve does not challenge the trial court's dismissal of the claim for abuse of process. He seeks to reinstate only the cause of action for intentional infliction of emotional distress.

DISCUSSION

In reviewing the ruling on a demurrer, "we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.... We also consider matters which may be judicially noticed.' ... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.... When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.... And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.... The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58, citations omitted.)

"The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.... [p] ... [p] Conduct is extreme and outrageous when it ' " 'exceeds all bounds [of decency] usually tolerated by a decent society, [and is] of a nature which is especially calculated to cause, and does cause, mental distress....' " ' ... Liability 'does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' " (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1120, 1122, 252 Cal.Rptr. 122, 762 P.2d 46, citations omitted, bracketed material added in Molko.)

Wendy does not dispute that Steve has adequately pleaded a cause of action for intentional infliction of emotional distress. Instead, she contends that such a claim is barred in this case by public policy. We agree.

"It is ... established under California law that one can sue a spouse for an intentional tort ... or for a negligent tort...." (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268, 258 Cal.Rptr. 787, citations omitted.) "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 ... compelling reasons of public policy, be compensated." (Klein v. Klein (1962) 58 Cal.2d 692, 694-695, 26 Cal.Rptr. 102, 376 P.2d 70, italics added.)

Although interspousal immunity has long since been abandoned in California (see Self v. Self (1962) 58 Cal.2d 683, 684, 26 Cal.Rptr. 97, 376 P.2d 65; Klein v. Klein, supra, 58 Cal.2d at pp. 692-693, 26 Cal.Rptr. 102, 376 P.2d 70), it does not follow that spouses may sue each other for every intentional act that causes emotional injury. "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 remedy all human wrongs. There are many wrongs which in themselves are flagrant. For instance, such wrongs as betrayal, brutal words, and heartless disregard of the feelings of others are beyond any effective legal remedy and any practical administration of law.... To attempt to correct such wrongs or give relief from their effects "may do more social damage than if the law leaves them alone." ' ..." (Nagy v. Nagy, supra, 210 Cal.App.3d at p. 1269, 258 Cal.Rptr. 787.)

Accordingly, in Nagy v. Nagy, supra, 210 Cal.App.3d 1262, 258 Cal.Rptr. 787, Division Seven of this court upheld the dismissal of the plaintiff's fraud claim against his former wife. There, the wife had become pregnant during the parties' marriage, and she had told the plaintiff that he was the child's father. In fact, he was not. In reliance on the wife's misrepresentation, the plaintiff developed a close relationship with the child and treated him as a son. During dissolution proceedings, the plaintiff learned for the first time that he was not the child's biological father. In upholding the trial court's dismissal of the plaintiff's fraud claim, Division Seven of this court stated: "We conclude that under the facts of this case, an action for fraud would be contrary to public policy.... In our opinion, allowing a non-biological parent to recover damages for developing a close relationship with a child misrepresented to be his and performing parental acts is not a 'damage' which should be compensable under the law. Although we do not condone [the wife's] misrepresentations, they are similar to a 'betrayal' for which the law wisely should not provide a remedy." (Id. at pp. 1269-1270, 258 Cal.Rptr. 787, citation omitted.)

In Richard P. v. Superior Court (1988) 202 Cal.App.3d 1089, 249 Cal.Rptr. 246, the Court of Appeal rejected another claim of interspousal emotional distress. In that case, Linda, while married to Gerald, gave birth to two children, both fathered by Richard. When Linda and Gerald separated, they and Richard entered into a stipulated judgment giving joint legal custody of the children to Linda and Richard, physical custody to Linda, and visitation rights to both Richard and Gerald. Richard was obligated to support the children. Gerald relinquished any rights he might otherwise have had as the natural or presumptive father of the children. After entering into the stipulated judgment, Gerald sued Richard for fraud and intentional infliction of emotional distress, alleging that, as a result of the willful concealment of Richard's paternity, Gerald had become emotionally attached to the children. (Id. at pp. 1091-1092, 249 Cal.Rptr. 246.) The trial court overruled a demurrer to the complaint. Division Two of the First District issued a peremptory writ of mandate directing that the demurrer be sustained. A...