Nagy v. Nagy

Opinion

WOODS (Fred), J.

Plaintiff (hereafter appellant) appeals from an order of dismissal. We affirm.

Factual and Procedural Background

Appellant and respondent were formerly husband and wife. On September 28, 1987, appellant filed his first amended complaint for intentional infliction of emotional distress and fraud.

Among the allegations of the intentional infliction of emotional distress cause of action were the following: “On the 21st day of December, 1973, [appellant and respondent] entered into a ceremony of marriage and every [s/c] since that day until April 6, 1987, were husband and wife.

“From and after the date of the marriage, to wit, December 21, 1973, plaintiff and defendant actively sought to have children born of this marriage but without success.

“Prior to January 4, 1983, defendant Sabina Elizabeth Nagy orally represented to the plaintiff that she was pregnant with his child and, on January 4, 1983, Christopher Adam Nagy was born.

“At all times after January 4, 1983, relying upon the representation of defendant Sabina Elizabeth Nagy that he was the father of Christopher Adam Nagy, plaintiff embraced Christopher Adam Nagy as his son, developing a very close and intimate relationship with Christopher and did and performed all acts that a father would towards a son.

“During the course of the litigation between the parties in the dissolution proceedings and at a deposition of one Julius Nagy, a witness for the plaintiff herein, taken on August 7, 1986, defendant Sabina Elizabeth Nagy disclosed to the plaintiff, for the first time, that he was not the father of Christopher Adam Nagy, born January 4, 1983.

“Pursuant to a stipulation between the parties and counsel in said dissolution proceeding, an HLA Tissue Test was taken to determine the paternity of Christopher Adam Nagy. The results of the HLA tissue typing demonstrated that since Peter Nagy (plaintiff) does not have the blood grouping in the blood of Christopher Adam Nagy, that he could be excluded as the father of Christopher Adam Nagy.

“Defendant Sabina Elizabeth Nagy’s conduct in having a sexual congress with a person or persons other than plaintiff, causing her pregnancy, and her false and fraudulent representation to plaintiff that he was the father of Christopher, was intentional and malicious and done for the purpose of causing plaintiff to suffer humiliation, mental anguish and emotional and physical distress. Defendant Sabina Elizabeth Nagy’s conduct in confirming that conduct was done with knowledge that plaintiff’s emotional and physical distress would thereby increase, and was done with a wanton and reckless disregard of the consequences to plaintiff.”

Among the allegations of the fraud cause of action, which incorporated most of the allegations of the first cause of action, were the following: “At the time defendant made the oral representations [sic] . . . defendant knew that said representation was false and fraudulent and was made to plaintiff so as to cause plaintiff to rely thereon.

“At all times after January 4, 1983, relying upon the representation of defendant Sabina Elizabeth Nagy that he was the father of Christopher Adam Nagy, plaintiff embraced Christopher Adam Nagy as his son, developing a very close and intimate relationship with Christopher and did and performed all acts that a father would towards a son.

“Plaintiff discovered the falsity of said representation on or about August 7, 1986, when defendant disclosed, for the first time, that plaintiff was not the father of Christopher Adam Nagy. This falsity of said representation was later confirmed by the results of an HLA Tissue Typing Test wherein it was determined that plaintiff was excluded as the father of Christopher Adam Nagy.

“As a result of the false and fraudulent representation made by defendant to plaintiff, plaintiff was damaged in an amount to be determined at time of trial.”

Attached to the complaint was the judgment of dissolution, which awarded sole custody of Christopher to respondent. The judgment, which permanently restrained appellant from contacting or communicating with Christopher, provided that: “[appellant] waives any right to sue [respondent] or any third person for reimbursement of any monies paid in the past to [respondent] or third parties for or on behalf of the minor child, Christopher.”

On November 13, 1987, respondent’s demurrer to the first amended complaint was sustained as to both causes of action. An order of dismissal was filed on November 18, 1987.

Appellant filed a timely notice of appeal.

Discussion

Appellant contends that he successfully pled causes of action for intentional infliction of emotional distress and fraud and that the trial court erred in sustaining respondent’s demurrer to his complaint. We disagree.

It is well settled that a general demurrer admits the truth of all material factual allegations in the complaint and that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof, does not concern the reviewing court. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal.Rptr. 88, 468 P.2d 216].) The plaintiff need only plead facts showing that he may be entitled to some relief. (Ibid.) If the appellant in the instant case pled facts entitling him to relief, then the trial court erred in sustaining respondent’s demurrer.

It is also well established under California law that one can sue a spouse for an intentional tort (Self v. Self (1962) 58 Cal.2d 683, 691 [26 Cal.Rptr. 97, 376 P.2d 65]) or for a negligent tort. (Klein v. Klein (1962) 58 Cal.2d 692, 693 [26 Cal.Rptr. 102, 376 P.2d 70].) “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 statute or compelling reasons of public policy, be compensated.” (Id., at pp. 694-695.) Thus, the issue in this case is whether or not appellant successfully pled causes of action for intentional infliction of emotional distress and fraud and, if so, whether or not there is a compelling statutory or public policy reason not to allow compensation for the alleged injuries.

I. Fraud

The elements of fraud are: (a) misrepresentation; (b) knowledge of falsity (scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778.)

Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal.Rptr. 783, 673 P.2d 660].) Every element of the cause of action for fraud must be alleged in the proper manner (i.e. factually and specifically), and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. (Ibid.)

Appellant pled that while married to appellant, respondent knowingly misrepresented to him that he was the father of her son, Christopher Adam Nagy, who was born when the parties were married. Appellant further alleged that in reliance upon respondent’s misrepresentation, he developed “a very close and intimate relationship with Christopher and did and performed all acts that a father would towards a son.” As a result of the misrepresentation, appellant alleged that he suffered emotional distress and that he “was damaged in an amount to be determined at the time of trial.”

Fraudulent representations which work no damage cannot give rise to an action at law. (Abbot v. Stevens (1955) 133 Cal.App.2d 242, 247 [284 P.2d 159].) An allegation of a definite amount of damage is essential to stating a cause of action.

In addition, for a viable cause of action for fraud, the pleading must show a cause and effect relationship between the fraud and damages sought; otherwise no cause of action is stated. (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 12 [101 Cal.Rptr. 499, 51 A.L.R.3d 991].)

As part of the dissolution judgment, appellant waived his right to sue for “reimbursement of any monies paid ... for or on behalf of the minor child, Christopher.” Furthermore, we are not aware of any law which would permit a person to recover damages for developing an intimate relationship with a child and performing all the acts of a parent. Although damages for emotional distress can be recovered in a fraud cause of action, such damages have been allowed only as an aggravation of other damages. (See Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 921 [114 Cal.Rptr. 622, 523 P.2d 662]; Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433 [58 Cal.Rptr. 13, 426 P.2d 173].) Since we conclude that appellant has not successfully pled other, or indeed any legally recognizable damages, damages for emotional distress alone are not recoverable.

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. [Citation.] To attempt to correct such wrongs or give relief from their effects ‘may do more social damage than if the law leaves them alone.’ [Citation.]” (Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640, 642-643 [164 Cal.Rptr. 618, 31 A.L.R.4th 383].)

At the hearing on respondent’s demurrer, appellant declined another opportunity to amend his pleadings, stating that he had nothing more to plead. In addition to appellant’s failure to plead damages specifically and factually, we can discern no basis upon which appellant could have amended his complaint to successfully plead a cause of action for fraud.

We conclude that under the facts of this case, an action for fraud would be contrary to public policy. (See Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 379, fn. 9 [193 Cal.Rptr. 422].) In our opinion, allowing a nonbiological 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 respondent’s misrepresentations, they are similar to a “betrayal” for which the law wisely should not provide a remedy.

II. Intentional Infliction of Emotional Distress

The elements of the tort of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiif’s suifering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394 [89 Cal.Rptr. 78, 47 A.L.R.3d 286].) It must also appear that the defendant’s conduct was unprivileged. (Ibid.)

“Civil Code section 47, subdivision 2, provides an absolute privilege for a publication in any judicial proceedings. Neither actual malice or falsehood will defeat the privilege so long as the statement has any reasonable connection with a legal action and is made in furtherance of the litigation. The purpose of the privilege is to secure utmost freedom of access to the courts without fear of retribution.” (Fn. omitted.) (Williams v. Coombs (1986) 179 Cal.App.3d 626, 645 [224 Cal.Rptr. 865] disapproved on another point in Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 883, fn. 9 [254 Cal.Rptr. 336, 765 P.2d 498].) The privilege applies to all participants in the litigation, including parties. (Smith v. Hatch (1969) 271 Cal.App.2d 39, 46 [76 Cal.Rptr. 350].)

“[T]he statutory privilege accorded to statements made in judicial proceedings . . . applies to virtually all other causes of action, with the exception of an action for malicious prosecution. [Citation.] Thus, the privilege will defeat claims of invasion of privacy [citations] and intentional infliction of emotional distress. [Citation.]” (Ribas v. Clark (1985) 38 Cal.3d 355, 364 [212 Cal.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417].)

In the instant case, appellant learned about the falsity of respondent’s representation that he was the father of Christopher during a deposition being conducted in the dissolution proceeding. Since appellant had stated that Christopher was his son in his response to respondent’s dissolution petition, respondent’s statement had a reasonable connection to a legal action—the dissolution proceeding.

Furthermore, appellant alleges that respondent’s conduct at the deposition, in confirming her previous conduct, was done to increase his emotional distress. Since appellant’s emotional distress was predicated on respondent’s statement and the statement itself was alleged to be tortious, no matter what respondent’s motives may have been, her statement was privileged under Civil Code section 47, subdivision 2. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1163, 1168 [232 Cal.Rptr. 567, 728 P.2d 1202].) Accordingly, any emotional distress which that statement may have caused appellant is not actionable.

Appellant argues that it is not what respondent said at the deposition that is the subject of the emotional distress cause of action, but what she did during the marriage that is actionable. However, appellant overlooks the proximate cause element of this tort. In order to suffer emotional distress from respondent’s conduct, it was necessary for appellant to know about it. This cause of action could not accrue until appellant suffered appreciable and actual harm. (See Davies v. Krasna (1975) 14 Cal.3d 502, 514 [121 Cal.Rptr. 705, 535 P.2d 1161, 79 A.L.R.3d 807].) That harm, although not recoverable for policy reasons heretofore discussed, in fact occurred in a privileged litigation setting. The tort was not completed prior to the litigation but during the litigation. Even if it were possible for appellant to craft a complaint for future emotional distress, by successfully divorcing the future emotional distress from the disclosure of the misrepresentation in a privileged litigation setting, we would still be compelled to hold that public policy precludes such future recovery.

Accordingly, we conclude that appellant has not pled the elements of a cause of action for the intentional infliction of emotional distress.

Disposition

The order is affirmed. Respondent to recover costs on appeal.

Lillie, P. J., concurred.