The issue presented in this appeal is whether a woman (appellant) suffering injuries from an ectopic pregnancy
I. Procedural Background
Respondent, an attorney, filed an action in municipal court against appellant for $1,520 in fees for representing her in a family law matter. Appellant filed her answer and a cross-complaint for damages alleging, inter alia, fraud and legal malpractice, and the action was transferred to the superior court. After a demurrer to the cross-complaint was filed, appellant by stipulation filed her first amended cross-complaint, which is the subject of this appeal. After several hearings on the demurrer to the amended cross-complaint, the court (Kongsgaard, J.) sustained a demurrer to the count alleging intentional/negligent infliction of emotional distress and dismissed the two counts alleging legal malpractice for appellant's failure to amend.
Prior to trial, on May 12, 1980, the Second District filed its opinion in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640 [164 Cal.Rptr. 618], holding that a man stated no cause of action in a cross-complaint against a woman for misrepresentations about her use of birth control in an action brought by her to establish paternity of their child and to impose on him an obligation for child support. In the case at bar, the court (Sherwin, J.) agreed with respondent that Stephen K. v. Roni L. was controlling and granted his motion for judgment on the pleadings, which was entered on
II. Standard of Review and Factual Allegations
Appellant and respondent met about April 1978. Appellant retained respondent, an attorney, to represent her in a postdissolution proceeding for modification of spousal support and child support for her three children; the legal relationship was in existence at the time of the alleged events. On two occasions, June 25 and June 30, 1978, she and respondent had sexual intercourse with each other. Before they engaged in sexual intercourse the first time, appellant demanded that respondent use a contraceptive device, i.e., a condom, and explained that for emotional and financial reasons she did not want to become pregnant. Appellant further told respondent "... that she would not engage in sexual intercourse with him if there was any likelihood of her becoming pregnant; ..." Respondent told appellant not to worry, saying, "`I can't possibly get anyone pregnant.'" She understood this to mean that he was sterile by nature or as the result of a vasectomy.
Respondent's representation about his procreative inability was false, and he knew it was false. It was made with the intent to induce appellant to engage in sexual intercourse, protected or not. Appellant, relying on respondent's assurance of his sterility, consented to and did engage in sexual intercourse with respondent. The attorney-client relationship produced in appellant a sense of trust in respondent, and she justifiably relied on his representations.
III. Cause of Action on Theories of Battery or Deceit
As an alternative theory for recovery in tort, appellant pleaded deceit, an action sanctioned by Civil Code section 1709, which provides: "One who willfully deceives another with intent to induce him [or her] to alter his [or her] position to his [or her] injury or risk, is liable for any damage which he [or she] thereby suffers." Deceit, within the meaning of section 1709, is defined by Civil Code section 1710
IV. Basic Rule
V. The "Antiheart Balm" Statute
Respondent asserts that appellant's action comes within the statutory exception declared in Civil Code section 43.5 and is thus barred. We find that statute is not applicable. Section 43.5 provides, in relevant part, "No cause of action arises for: ... [¶] (c) Seduction...." The word "[s]eduction," as used in the statute, is a term of art involving elements substantively different from those alleged by appellant.
The old action for seduction required that the woman was "... chaste and virtuous at the time of the alleged seduction ..." (Davis v. Stroud, supra, 52 Cal. App.2d at p. 316), and it was used primarily to protect young, inexperienced women who had succumbed to the sexual advances of older men. (See Carter v. Murphy (1938) 10 Cal.2d 547 [72 P.2d 1072].)
Nevertheless, respondent argues that the public policy considerations underlying the statutory bar to seduction actions are sound and are applicable to the case before us. He points out that seduction actions are "... fruitful sources of fraud and extortion because of the ease with which they may be employed to embarrass, harass and besmirch the reputation of one wholly innocent of wrongdoing ...," quoting from Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789 [218 P.2d 854]. He predicts a multitude of unfounded or fraudulent claims if appellant's claim is allowed.
Our Supreme Court has held that fear of unfounded or fraudulent claims is not a valid reason for disallowing a tort action predicated upon a meritorious claim. In Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], the court stated: "[t]he possibility that some fraud will escape detection does not justify an abdication of the judicial responsibility to award damages for sound claims: if it is `to be conceded that our procedural system for the ascertainment of truth is inadequate to defeat fraudulent claims ..., the result is a virtual acknowledgment that
VI. Inapplicability of
Appellant argues that the trial court mistakenly relied on Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, because that case is factually distinguishable and the public policy considerations underlying the two actions differ. Respondent reiterates that appellant's action contravenes public policy "... to eliminate governmental intervention into private sexual dealings ...," as enunciated in Stephen K.
In that case, Stephen, the defendant in a paternity action, after admitting paternity, cross-complained against Roni, the mother of the child, claiming that she had falsely represented that she was taking birth control pills. The father alleged that in reliance upon such representation, he engaged in sexual intercourse with Roni, which eventually resulted in the birth of a baby unwanted by the father. He further alleged that as a proximate result of the misrepresentation, he had become obligated to support the child financially and had suffered mental distress.
In affirming the dismissal of Stephen's cross-complaint, the court held that Roni's misrepresentation was not actionable and gave rise to no liability. (Id., at p. 642.) In summary, the court concluded that "... 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.) The court added that to "... supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct ... would encourage unwarranted governmental intrusion into matters affecting the individual's right to privacy ...," and that "... as a matter of public policy the practice of birth control, if any, engaged in by two partners in a consensual sexual relationship is best left to the individuals involved, free from any governmental interference." (Id., at pp. 644-645.)
The facts in Stephen K. and in the case before us, both based on deceit, are obviously similar. A significant distinction between the cases, however, lies in the element of damage. In essence, Stephen was seeking damages for the "wrongful birth" of his child
Although the Stephen K. court alluded to Stephen's claim as separate and apart from the issue of either parent's obligation to raise and support the child, it reached its decision without attempting to resolve the problem of the mother's reduced financial ability to support the child if she were required to pay damages to the father. We think this concern over the child, and not governmental intrusion into private sexual matters, which we discuss below, is the central issue in Stephen K. and compels different public policy considerations.
Civil Code section 196a imposes on the natural father as well as the natural mother of a child the obligation to give the child support and education suitable to his or her circumstances. To assess damages against the mother for false representations about birth control would have the practical effect of reducing or eliminating support from the father by way of offset. Erasing much or all of the father's financial support, to the detriment of the child, is clearly against public policy and the statutory mandate.
Further, we think it is not sound social policy to allow one parent to sue the other over the wrongful birth of their child. Using the child as the damage element in a tortious claim of one parent against the other could seldom, if ever, result in benefit to a child.
In short, we agree with the Stephen K. court that Roni's misrepresentation was not actionable, but we find that different policy reasons justify that result. The question remains, however, whether allowing appellant's action in the case before us encourages "... unwarranted governmental intrusion
VII. Privacy Right Not Absolute
California has adopted a general scheme for the regulation of the criminal aspects of sexual activity and has determined when sexual intercourse between persons not married to each other shall be criminal. (In re Lane (1962) 58 Cal.2d 99, 102-104 [22 Cal.Rptr. 857, 372 P.2d 897] [citing specific penal statutes].) Prosecution under many of the penal statutes, covering both consensual and forcible sexual acts, often requires testimony of a far more intimate sexual nature than in the case before us. The victim of many of the proscribed acts suffers an invasion of privacy in both the act and the required testimony. And, the state has a fundamental right to enact laws which promote public health, welfare, and safety, even though such laws may invade the offender's right of privacy. (People v. Mills (1978) 81 Cal.App.3d 171, 181 [146 Cal.Rptr. 411] [compulsory registration of convicted sex offenders].)
Even sexual relations within marriage, long held sacrosanct, have recently been opened to scrutiny when a spouse complains of forcible sexual intercourse. (Pen. Code, § 262.) The ancient policy of protecting the privacy of the marriage bed is outweighed in the modern view by the grievous harm to a man or woman caused by spousal rape. (See Freeman, "But If You
In the civil law, for example, our Legislature has recently amended Evidence Code section 621 to state a limited exception to the rule that the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (See also Civ. Code, § 7004, subd. (a).) Either husband or wife, under certain circumstances, can bring an action to establish that the husband is not the biological father of his wife's child. (Evid. Code, § 621; cf. Michelle W. v. Ronald W.
Where paternity of a child is at issue, the mother cannot refuse to answer all relevant questions about her sexual activity on the plea that it is a private matter. Her right of privacy must yield to "`the historically important state interest of facilitating the ascertainment of truth in ... legal proceedings.' [Citation.]" (Fults v. Superior Court (1979) 88 Cal.App.3d 899, 904 [152 Cal.Rptr. 210].) Nor can a man invoke the right of privacy to avoid a determination of paternity of a child he has fathered. (See Uniform Parentage Act (Civ. Code, §§ 7000-7021).)
Although the right to privacy is a freedom to be carefully guarded, it is evident that it does not insulate a person from all judicial inquiry into his or her sexual relations. We do not think it should insulate from liability one sexual partner who by intentionally tortious conduct causes physical injury to the other. (Cf. Marvin v. Marvin, supra, 18 Cal.3d 660, 682, fn. 21.) Public policy does not demand such protection for the right of privacy.
VIII. Analogy to Venereal Disease Cases
Three out-of-state cases, without discussing public policy or the right to privacy, have held that a woman's consent to sexual intercourse was vitiated by the man's fraudulent concealment of the risk of infection with venereal disease or infestation with vermin. (See De Vall v. Strunk (Tex.Civ.App. 1936) 96 S.W.2d 245 [single woman, seduced by promise of marriage, had action in battery against man who infected her with crab lice]; Crowell v. Crowell (1920) 180 N.C. 516 [105 S.E. 206] [wife was not under disability to maintain action for battery or fraud against husband for infecting her with venereal disease]; State v. Lankford (1917) 29 Del. 594 [102 A. 63] [man
These old cases lend support to allowing the within action, in spite of the language in each case extolling the virtuous character of the woman involved.
We do not assess the wisdom nor predict the future course in the retreat from the double standard of morality for men and women in sexual matters. We do not think, however, at this stage of social mores, that it is relevant to judge appellant's action on the basis of morality.
IX. Violation of Fiduciary Obligation
It is evident, however, that the lawyer-client relationship affects the proof of appellant's cause of action at trial, rather than the sufficiency of the pleadings. Because of the importance of the issue, we offer the following comments for the guidance of the trial court in further proceedings.
We decline to address another issue indirectly raised by appellant — one of first impression in California, at least as far as statutes, cases, and rules are concerned. She asserts that it is a breach of ethics for an attorney, particularly in a family law context, to induce a client to have sexual relations during the course of the representation, and she points out that other professions have imposed discipline on a member for sexual misconduct with a patient. (See, e.g., Dresser v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 506 [181 Cal.Rptr. 797]; Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931 [123 Cal.Rptr. 563].)
We think this question is more properly directed to the State Bar of California, which so far has not publicly addressed the issue.
In summary, the facts alleged in appellant's cross-complaint state causes of action for battery and deceit. Her causes of action are not barred by Civil Code section 43.5, nor by the holding in Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, or the public policy considerations underlying that decision. Although the constitutional right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party. No California statute or decision bars appellant's causes of action, and decisions of other states support their viability by analogy.
The judgment is reversed. The Municipal Court for the Napa-St. Helena Judicial District, County of Napa, State of California, is ordered to retransfer respondent's action to the Superior Court of the State of California, for the County of Napa, for further proceedings consistent with the views expressed herein.
Feinberg, J., concurred.
I respectfully dissent. The cause of action appellant attempts to allege falls squarely within the prohibition of Civil Code section 43.5 which provides that "No cause of action arises for ... [¶] (c) Seduction of a person over the age of legal consent."
The majority attempts to characterize appellant's cause of action as a battery or an action for deceit. But in fact, appellant was allegedly seduced by respondent's false representation of infertility. The gravamen of appellant's cause of action is the seduction, that is the act of sexual intercourse induced by appellant's false representations. The injury sustained as a result of the alleged seduction was the ectopic pregnancy and damages that flowed therefrom. Clearly if there can be no cause of action for seduction, there can be no damages for the consequences thereof.
In rejecting respondent's contention that appellant's action is barred by Civil Code section 43.5, subdivision (c), the majority argues that this is not a seduction action because "appellant complains not because her virtue was violated ... but because the sexual act ... led to an ectopic pregnancy as a result of respondent's misrepresentation." I find no support for the contention that the only damage from a seduction is loss of virtue. Surely a woman can suffer mentally and physically from an unwanted pregnancy whether it results in a live birth or is sooner terminated. All we are talking about is the damage that flows from the seduction.
I agree with the court in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640 at pages 644 and 645 [164 Cal.Rptr. 618] where it states: "Despite [the] legalism [of plaintiff's claim], it is nothing more than asking the court to supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct. To do so would encourage unwarranted governmental intrusion into matters affecting the individual's right of privacy." Should we grant appellant here a cause of action, we cannot logically foreclose a cause of action to a woman who carries the child to a live birth, or one who has a miscarriage. The possibilities are limitless. The courts should stay out of the bedroom. I would affirm the judgment.
Respondent's petition for a hearing by the Supreme Court was denied September 29, 1983. Richardson, J., was of the opinion that the petition should be granted.
"(a) Alienation of affection.
"(b) Criminal conversation.
"(c) Seduction of a person over the age of legal consent.
"(d) Breach of promise of marriage."
Neither appellant nor respondent directed much attention to the sufficiency of the allegations in the first amended cross-complaint. Instead, each party emphasized public policy considerations and constitutional issues, which we discuss later.
"1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
"2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;
"3. The suppression of a fact, by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of fact; or,
"4. A promise, made without any intention of performing it."
Furthermore, although the different treatment of men and women must be examined with strict scrutiny (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 15-20 [95 Cal.Rptr. 329, 485 P.2d 529]), such treatment may be justified where men and women are not similarly situated (Schlesinger v. Ballard (1975) 419 U.S. 498, 508 [42 L.Ed.2d 610, 618, 95 S.Ct. 572].) Since it is obvious that men and women are not similarly situated with regard to the risk of pregnancy, any difference in treatment of them which may be perceived in our holding is justified.
"These rules recognize that to fulfill the lawyer's responsibility of fully and adequately representing the client, it is essential that the lawyer be able to exercise independent professional judgment on behalf of the client. Where there is any question about the lawyer's ability to exercise an independent professional judgment, the client must be able to give an informed consent.
"The lawyer representing one spouse in a dissolution proceeding cannot know with certainty whether a reconciliation is possible or is in the best interest of the client, or how the possibility of a reconciliation might be affected by an affair between the lawyer and the client. Nor can the lawyer know with certainty what reaction the client's spouse would have to learning that the lawyer is having an affair during the dissolution proceedings, or how such knowledge might affect the negotiation of property rights and, if children are involved, the right to custody. See In the Matter of Lehr and Lehr, 36 Or.App. 23, 583 P.2d 1157 (1978). The potential for prejudice to the client is immense.
"Moreover, the client may be unable to give a voluntary and informed consent to continued representation. The attorney-client relationship is a fiduciary relationship, one of trust. The nature of that fiduciary relationship tends to make the client intellectually and, in many cases, emotionally dependent upon the attorney. If the client becomes involved in a love affair with the attorney, that dependency would only be increased. It would appear impossible for the lawyer to carry on such an affair with the client and maintain an independent judgment about whether the affair might harm the client's interests. See DR 7-101(A)(3). Even if the attorney were able to predict the consequences of the affair and explain them to the client, it is doubtful that the client's consent to the attorney's continued representation could ever be deemed truly informed and voluntary...."