Robertson v. Saadat

Filed 5/1/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SARAH ROBERTSON, B292448
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC621038)
v.
PEYMAN SAADAT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles, Barbara Ann Meiers, Judge. Affirmed.
John L. Dodd & Associates, John L. Dodd, Benjamin
Ekenes; Vorzimer Masserman and Dean Masserman for
Plaintiff and Appellant.
Manning & Kass Ellrod, Ramirez, Trester, Louis W.
Pappas and Steven J. Renick for Defendants and Respondents
Peyman Saadat, M.D. and Peyman Saadat, M.D., Inc. dba
Reproductive Fertility Center.
Kjar, McKenna & Stockalper and Patrick E. Stockalper for
Defendant and Respondent In Vitrotech Labs, Inc.
____________________________
Plaintiff Sarah Robertson (plaintiff) appeals from the
judgment after the trial court sustained demurrers to her causes
of action alleged against defendants and respondents Peyman
Saadat (Saadat), Peyman Saadat M.D., Inc. dba Reproductive
Fertility Center (Reproductive Fertility Center), and In Vitrotech
Labs, Inc. (In Vitrotech Labs) (collectively, defendants). We refer
to the latter two defendants as the corporate defendants.
Plaintiff alleged that her husband entered an irreversible
coma due to a rare genetic disorder. Shortly before his death,
plaintiff arranged to extract his sperm in hopes of one day
conceiving a child with it. Plaintiff stored the sperm in a tissue
bank that ultimately came under the control of defendants. Ten
years later, when plaintiff requested the sperm, defendants
disclosed that they could not locate it. Plaintiff brought suit,
asserting contract and tort claims based on the loss of her ability
to have a child biologically related to her deceased husband.
The trial court sustained demurrers to the tort causes of
action, concluding, inter alia, that plaintiff was not legally
entitled to use her husband’s sperm for posthumous conception,
and therefore suffered no injury from its loss. The trial court
similarly ruled plaintiff could not recover damages for emotional
distress or loss of fertility interests under her breach of contract
cause of action.
We agree with the trial court. Under California law, the
donor’s intent controls the disposition of his or her gametic
material upon death. The only allegations regarding plaintiff’s
husband’s intent were that plaintiff, at the time she requested
2
her husband’s sperm be extracted, represented to his physicians
that she and her husband had always wanted to have children
together, and provided letters and cards written by her husband
similarly indicating a desire to have children with his wife.
Although those allegations, if true, would establish that the
husband wished to have children with his wife while he was
alive, they fail as a matter of law to establish that the husband
intended his wife to conceive a child with his sperm
posthumously.
Accordingly, we affirm.
FACTUAL BACKGROUND
We summarize the relevant allegations from the second
amended complaint (SAC),1 the focus of plaintiff’s challenges on
appeal.
Plaintiff married Aaron Robertson (Aaron)2 in 1995. Aaron
had Marfan Syndrome, a potentially life-threatening genetic
disease that has a 50 percent chance of being passed to offspring.
Plaintiff and Aaron “planned to start a family when reliable
medical technology existed” to prevent Aaron from transmitting
his genetic disease to their children.
On May 26, 2004, Aaron suffered a stroke as a result of the
Marfan Syndrome and fell into a coma. Two days later, Aaron’s
medical team at UCLA Medical Center told plaintiff that Aaron’s
1 The SAC, as filed, was erroneously labeled as the “Third
Amended Complaint.” The trial court ordered the caption
corrected.
2 Because plaintiff and Aaron share a last name, we refer
to Aaron by his first name to avoid confusion. No disrespect is
intended.
3
“condition was terminal and there was no chance of him
recovering.”
Plaintiff represented to Aaron’s treating physicians that
she and Aaron “always desired to have children together,” and
requested that the hospital extract Aaron’s sperm so plaintiff
could “one day fulfill their longtime dream of [plaintiff] having
[Aaron’s] children.” Based on “letters or cards that had been
written by Aaron prior to his stroke wherein he expressed his
desire to have children with his wife,” and plaintiff’s status as
Aaron’s “conservator and legal next of kin,” UCLA Medical
Center’s risk management department determined the letters or
cards “were sufficient to be considered documents of gift” and
that plaintiff “could give consent to harvest [Aaron’s] sperm.” A
UCLA ethics panel also approved of plaintiff’s request. UCLA
Medical Center personnel then extracted Aaron’s sperm. Aaron’s
parents paid for the procedure.
The extracted sperm was stored in six vials at Tyler
Medical Clinic. Plaintiff informed Tyler Medical Clinic’s
laboratory director, Dr. Jerry Hall (Hall), that she intended to
use Aaron’s sperm to conceive a child “once she could confidently
ensure” Marfan Syndrome would not be passed on to the child.
Hall confirmed the sperm was “viable” and “in excellent
condition.”
Aaron died on June 1, 2004 at the age of 29. Following
Aaron’s death, plaintiff signed a written agreement in which
Tyler Medical Clinic agreed to freeze and store Aaron’s sperm.
In November 2005, defendant Saadat joined Tyler Medical
Clinic as clinical director. In February 2006, plaintiff noticed her
annual storage invoice was from a different entity than Tyler
Medical Clinic. She contacted Dr. Jaroslav Marik (Marik) of
4
Tyler Medical Clinic by e-mail, stating her intention someday to
conceive a child with Aaron’s sperm and asking for Marik’s
reassurance that the specimens would be safe.
Marik responded that he was retiring, and that the
specimens would be safely transferred to Saadat, who was
purchasing the business. Marik told plaintiff Aaron’s sperm
would be safe and would be moved to the upper floor of the same
office building it was in at that time, with Hall remaining in
control of the tissue bank. Based on Marik’s representations, and
Tyler Medical Clinic’s website’s description of Saadat’s
experience, articles, and awards, plaintiff allowed the sperm to be
transferred to Saadat and began making payments to him.
In the summer of 2006, Saadat formally purchased Tyler
Medical Clinic and transferred the contents of its tissue bank to
his own facility. Plaintiff began receiving annual invoices from
defendant Reproductive Fertility Center, and later defendant
In Vitrotech Labs, both entities owned and controlled by Saadat.
Plaintiff timely made all storage fee payments.
In April 2014, plaintiff asked defendants to transfer the
six vials of sperm to UCLA so she could begin her fertility
treatment.3 In November 2014, Saadat’s clinic manager,
Ilinca Halfon (Halfon), informed plaintiff defendants could
account for only one of the six vials, and had no explanation for
what happened to the other five. Plaintiff, alarmed, began
making arrangements to transfer the one remaining vial to
another “more competent facility,” and demanded that
3 The SAC does not always specify which defendant took a
particular action or received a particular communication from
plaintiff. The lack of specificity does not impede our resolution of
this appeal.
5
defendants perform an audit and inventory to locate the five
missing vials.
In March 2015, Saadat told plaintiff that the missing vials
likely were lost in a fire that occurred before he had purchased
Tyler Medical Clinic. Plaintiff later learned the fire had occurred
more than a year before Tyler Medical Clinic took possession of
Aaron’s sperm.
Plaintiff requested that defendants transfer the remaining
vial to UCLA Medical Center. Saadat then “made repeated and
unsolicited efforts to coerce and intimidate Plaintiff to allow him”
to perform the fertility treatments instead.
Plaintiff refused Saadat’s entreaties and insisted
defendants transfer the remaining vial to UCLA Medical Center.
On April 27, 2015, Halfon informed plaintiff by e-mail that the
remaining vial in fact belonged to another individual with the
same first name as her deceased husband. “In other words,
Defendants claimed they had no remaining sperm and tissue
from” Aaron.
Plaintiff alleged, purportedly on information and belief,
that defendants knew they did not have Aaron’s vials at the time
they offered her fertility treatments, and instead intended to
impregnate her with sperm from another donor. Plaintiff further
alleged on information and belief that defendants used Aaron’s
sperm to impregnate other patients of defendants without those
patients’ knowledge or consent, thus potentially passing on
Marfan Syndrome. Plaintiff requested that defendants notify all
patients treated since 2006 of the possibility they may have
undergone fertility treatment using Aaron’s sperm, but
defendants refused.
6
PROCEDURAL HISTORY
Plaintiff and Aaron’s parents filed an action against
defendants on May 26, 2016. The first amended complaint
asserted causes of action for professional negligence; breach of
contract; intentional and negligent infliction of emotional
distress; negligence; fraud, misrepresentation, and/or
concealment; loss of consortium; conversion; breach of fiduciary
duty; conspiracy; and violations of federal regulations and the
California Commercial and Business and Professions Codes.
Defendants filed demurrers and motions to strike in response.
The trial court on its own motion raised the question
whether plaintiff and Aaron’s parents had standing to assert
their claims. The trial court tentatively concluded that none of
the plaintiffs had a legal right to extract Aaron’s sperm or to
store and use it after his death, and therefore could not have been
“adversely affected by its loss.” The trial court further tentatively
concluded the relief sought was “contrary to public policy” in that
it was based on an “intrusion” into Aaron’s right to procreation
and to govern his own body.
After receiving further briefing from the parties, the
trial court denied its own motion without prejudice. The
trial court concluded the parties had not addressed sufficiently
whether defendants were estopped under bailment law from
asserting as a defense the plaintiffs’ lack of legal interest in the
sperm, an issue plaintiffs’ counsel had “obliquely raised” during
oral argument.
The trial court ruled on defendants’ demurrers and motions
to strike, among other things sustaining the demurrer to the
cause of action for intentional infliction of emotional distress and
dismissing Aaron’s parents as plaintiffs for lack of standing. The
7
trial court’s other rulings regarding the first amended complaint
are not relevant to the issues on appeal and we do not summarize
them.
Plaintiff then filed the SAC, asserting eight causes of action
for professional negligence; breach of oral and written contract;
negligent infliction of emotional distress; negligence; fraud,
misrepresentation, and/or concealment; and violations of
Commercial Code section 7403 and Business and Professions
Code sections 17200 and 17500. The cause of action for
professional negligence was asserted against Saadat only. The
other causes of action were asserted against all defendants.
Under the cause of action for professional negligence,
plaintiff claimed defendants had “denied her property and the
opportunity to have a child biologically related to her deceased
Husband,” and she was “suffering from severe emotional stress
and depression” stemming from “the knowledge that she will
never fulfill her deceased Husband’s wishes to have children.”
Under both the professional negligence and breach of contract
causes of action, plaintiff alleged economic damages “including
but not limited to the expense of fertility treatments that would
otherwise not have been incurred and significant legal costs and
fees.”
Under the cause of action for negligent infliction of
emotional distress, plaintiff alleged she “suffers daily with the
knowledge that not only was Plaintiff denied her property and
the opportunity to have a child biologically related to her
deceased Husband, but that there is a distinct possibility that an
unknown number of patients of Defendants are unknowingly
raising [Aaron’s] children who may be at serious risk of a deadly
disease.”
8
Under the negligence cause of action, plaintiff alleged
defendants had a “special relationship” with plaintiff “as the
custodian[s] and overseer[s] of [plaintiff’s] biological property.”
Plaintiff claimed she had been harmed but did not specify
damages for this cause of action.
Under the fraud, misrepresentation, and/or concealment
cause of action, plaintiff alleged defendants represented through
their website, advertising, and promotional materials that they
had the ability to store sperm and other tissue safely, despite
knowing from past experience that they did not. Plaintiff alleged
defendants made the misrepresentations “to induce Plaintiff to
continue to use their cryopreservation facilities over the period of
nine years, which generates enormous revenue for Defendants.”
Plaintiff alleged she entrusted Aaron’s sperm to defendants in
reliance on those representations. Plaintiff alleged defendants
further lied to her to cover up their misconduct once she
discovered the vials were missing. Plaintiff sought punitive
damages.4
Defendants again filed demurrers and a motion to strike.
The trial court sustained the demurrers to all causes of action
except breach of contract, which the trial court allowed to go
forward against the corporate defendants only.
Most pertinent to this appeal, the trial court ruled that
plaintiff “failed to provide any facts supportive of any damage
claim, other than that, inferentially, she may have a right to
4 The trial court sustained demurrers to the three causes
of action for violations of the Commercial and Business and
Professions Codes, and plaintiff does not challenge those rulings
in this appeal. We therefore do not summarize the allegations
under those causes of action.
9
recover what was paid in storage fees—with an amount
necessary to be pled sufficient to establish jurisdiction in a
general jurisdiction court.” As for plaintiff’s allegations that she
was “denied the right and opportunity to inseminate with her
late husband’s sperm,” the trial court found “no dispute on the
facts of this case that while living [Aaron] did not consent to the
withdrawal of his sperm or to its use for insemination after his
death.” Thus, plaintiff “had no right to use this sperm for
reproductive purposes in all events.”
The trial court stated that “no court should make a ruling
which would support or encourage a plaintiff to seek to recover
based upon his or her inability to utilize[ ] illegally obtained
organs or tissue (i.e., tissue taken without the donor’s consent or
otherwise specifically permitted by law).” The trial court stated
that such a ruling would be “in violation of public policy.”
The trial court also concluded that plaintiff had failed to
state a claim for professional negligence when the agreement
between plaintiff and defendants was for storage only, without
any defendant acting in the role of a health care provider.
The trial court granted the motion to strike all allegations
other than those pertinent to the breach of contract cause of
action. The trial court noted particularly that the SAC’s
allegations on information and belief concerning defendants’
purportedly impregnating other women with Aaron’s sperm had
no bearing on plaintiff’s damages, nor did plaintiff have standing
to assert claims on behalf of those women. The trial court also
found plaintiff had failed to plead adequate facts supporting the
allegations on information and belief.
Finally, the trial court stated that it “incorporates by
reference all arguments made in the demurring papers and
10
Motion to Strike . . . and sustains these demurrers and grants the
Motion to Strike on all grounds stated therein.”
The trial court granted plaintiff leave to amend, “but only
to clean up the Complaint . . . to state a cause of action for breach
of contract by the corporate defendants only plus facts supportive
of any damages claimed to have foreseeably resulted from that
breach.”
Plaintiff filed a petition for a writ of mandate challenging
the trial court’s order sustaining the demurrers and granting the
motion to strike. This court summarily denied the petition, with
one justice dissenting.
Plaintiff then filed a third amended complaint asserting a
single cause of action for breach of oral and written contracts.
Following further motion practice not relevant to this appeal,
plaintiff filed a fourth amended complaint, also asserting a cause
of action for breach of contract, and adding as additional
defendants Dr. Marik, his medical corporation, and Tyler Medical
Clinic.5
Saadat remained a defendant under the theory that the
corporate defendants allegedly were his alter egos. In describing
the relationship of Saadat and the corporate defendants, the
fourth amended complaint alleged those defendants “conspired
amongst themselves to misappropriate Plaintiff’s stored tissue
and sperm and used Aaron Robertson’s genetic material to create
5 Plaintiff added Marik and his related entities to the
fourth amended complaint as a result of the trial court
consolidating a separate action plaintiff filed against those
defendants with the action against Saadat and the corporate
defendants. Marik and his related entities are not parties to this
appeal.
11
embryos and seek to achieve pregnancies for other unsuspecting
patients of Defendants.”
The allegations in the fourth amended complaint were
essentially a stripped-down version of the allegations in the SAC:
Plaintiff contracted with Tyler Medical Clinic to store Aaron’s
sperm after Aaron died, Saadat sought to purchase Tyler Medical
Clinic, Marik assured plaintiff the sperm would be safe when
transferred to Saadat, plaintiff paid annual storage fees to
defendants, and, when plaintiff requested the sperm, defendants
informed her they could not locate the vials. Plaintiff claimed
damages “including but not limited to the expense of fertility
treatments that would otherwise not have been incurred and
significant legal costs.”
Defendants again filed demurrers and motions to strike.
The trial court sustained the demurrers and granted the motions
to strike, allowing plaintiff the opportunity to file “one last
amended Complaint specifying the damages sought as being the
loss of the bailment fees and costs (and attorney fees if a part of
the bailment contract) and any other specific damages directly
from the alleged breach of contract, not to include anything like
tort damages, emotional distress, loss of fertility interests, etc.
Any attempt to resurrect or re-state or include the types of
damages initially sought in this case generally in the nature of
consequential damages and/or loss will result in a final dismissal
of the Complaint.”
Plaintiff’s counsel informed the trial court plaintiff had
chosen not to file a fifth amended complaint. The trial court
dismissed the case with prejudice and entered judgment in favor
of defendants. Plaintiff timely appealed.
12
STANDARD OF REVIEW
“In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.”
(T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal. 5th 145,
162.) “ ‘ “ ‘We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions
of fact or law.’ ” ’ ” (Centinela Freeman Emergency Medical
Associates v. Health Net of California, Inc. (2016) 1 Cal. 5th 994,
1010.) We “adopt[ ] a liberal construction of the pleading and
draw[ ] all reasonable inferences in favor of the asserted claims.”
(Candelore v. Tinder, Inc. (2018) 19 Cal. App. 5th 1138, 1143.)
We are not bound by the trial court’s reasoning and may affirm
the judgment if correct on any theory. (Young v. Fish & Game
Com. (2018) 24 Cal. App. 5th 1178, 1192–1193.)
DISCUSSION
Plaintiff’s briefing on appeal largely focuses on the
trial court’s sustaining the demurrers to the tort causes of action
in the SAC on the basis that plaintiff obtained her husband’s
sperm illegally and in contravention of public policy. Plaintiff
argues that “the Legislature has chosen not to prohibit hospitals
from harvesting a deceased or incapacitated man’s sperm at the
request of his spouse,” and therefore plaintiff’s actions were
“neither ‘illegal’ nor contrary to public policy.”
To resolve this appeal, we need not decide whether the
extraction of Aaron’s sperm was illegal or against public policy,
and we decline to do so. Instead, we look to whether the SAC
adequately pleaded facts supporting tort damages. We conclude
it did not.
13
Plaintiff’s tort causes of action are all premised on the loss
of her ability to conceive with her deceased husband’s sperm. It
is that irreplaceable loss, plaintiff contends, that elevates this
case beyond a simple breach of contract action.
The flaw in this premise is that the SAC fails to allege facts
establishing that plaintiff was legally entitled to use Aaron’s
sperm to conceive a child after he died. As we will explain, under
California law, the donor’s intent governs disposition of stored
gametic material at the time of the donor’s death. The facts
alleged in the SAC are insufficient to show that Aaron, who
did not consent to the extraction of his sperm, intended that
sperm to be used for posthumous conception. Absent an
entitlement to use Aaron’s sperm to conceive a child, plaintiff’s
tort causes of action necessarily fail.6
Given our conclusion, we need not and do not decide
whether plaintiff was entitled to extract and store Aaron’s sperm
in the first place, nor do we decide whether plaintiff had any
interest in or entitlement to the sperm for purposes other than
posthumous conception.7
We begin with a discussion of the two cases addressing
postmortem disposition of stored sperm: Hecht v. Superior Court
6 As noted above, the trial court queried whether
defendants, as bailees, were estopped from challenging plaintiff’s
rights concerning the sperm. Plaintiff does not raise that issue
on appeal, and we therefore express no opinion whether any such
impediment exists.
7 Furthermore, nothing in this opinion should be read to
affect the respective rights of tissue banks and those who donate
gametic material for the tissue banks’ use.
14
(1993) 16 Cal. App. 4th 836 (Hecht), and Estate of Kievernagel
(2008) 166 Cal. App. 4th 1024 (Kievernagel).
A. Hecht
In Hecht, William Kane (Kane) deposited 15 vials of his
sperm at a sperm bank. (Hecht, supra, 16 Cal.App.4th at p. 840.)
He signed a storage agreement granting control over the sperm to
the executor of his estate should he die, and authorizing release
of the sperm to Deborah Hecht (Hecht), the woman with whom he
had been living for five years. (Ibid.) Kane drafted a will naming
Hecht as his executor, bequeathing the sperm to her for her
“ ‘use,’ ” and explaining what should happen to his “ ‘diplomas
and framed mementoes’ ” should Hecht “ ‘become impregnated
with my sperm, before or after my death.’ ” (Ibid.) Kane also
drafted a letter stating his wish that Hecht “ ‘have a child by me
after my death.’ ” (Id. at p. 841.) The letter was addressed both
to his existing children and his “ ‘posthumous offspring.’ ” (Ibid.)
Shortly after storing the sperm and drafting these
documents, Kane committed suicide. (Hecht, supra,
16 Cal.App.4th at p. 840.) The probate court, in response to a
request from Kane’s existing children, ordered the sperm
destroyed. (Id. at pp. 844–845.) Hecht petitioned for a writ of
mandate seeking to vacate that order. (Id. at p. 845.) Kane’s
children opposed the petition as real parties in interest. (Id.
at p. 839.)
The Court of Appeal granted the petition and issued the
writ of mandate prohibiting destruction of the sperm. (Hecht,
supra, 16 Cal.App.4th at p. 861.)
The court first concluded that the sperm “is properly part of
decedent’s estate” subject to the jurisdiction of the probate court
because decedent had an ownership interest in the sperm “to the
15
extent that he had decisionmaking authority as to the use of his
sperm for reproduction.” (Hecht, supra, 16 Cal.App.4th at
p. 850.) The Court of Appeal relied on a Tennessee Supreme
Court case, Davis v. Davis (Tenn. 1992) 842 S.W.2d 588 (Davis),
which concerned the disposition of cryogenically preserved
preembryos8 in a divorce proceeding. (Davis, at p. 589; Hecht,
supra, 16 Cal.App.4th at pp. 849–850.)
The court in Davis quoted an ethics opinion from The
American Fertility Society, which stated “ ‘decision-making
authority regarding preembryos should reside with the persons
who have provided the gametes’ ” because “ ‘[a] person’s liberty to
procreate or to avoid procreation is directly involved in most
decisions involving preembryos.’ ” (Davis, supra, 842 S.W.2d
at p. 597.) The Davis court concluded that the divorcing couple
did not have a “true property interest” in the preembryos, which,
given their “potential for human life,” could not be deemed
property. (Ibid.) However, in line with the quoted ethics opinion,
the couple “d[id] have an interest in the nature of ownership, to
the extent that they have decision-making authority concerning
disposition of the preembryos.” (Ibid.)
The Hecht court similarly concluded “that at the time of his
death, decedent had an interest, in the nature of ownership, to
the extent that he had decisionmaking authority as to the use of
his sperm for reproduction. Such interest is sufficient to
constitute ‘property’ within the meaning of Probate Code
section 62. Accordingly, the probate court had jurisdiction with
respect to the vials of sperm.” (Hecht, supra, 16 Cal.App.4th at
8 The “preembryos” were fertilized eggs that had developed
to the four- to eight-cell stage. (Davis, supra, 842 S.W.2d at
pp. 592, 594.)
16
p. 850.) The Court of Appeal emphasized, however, that “sperm
as reproductive material” was “a unique type of ‘property’ ” not
subject to “the general law relating to gifts of personal property
or the statutory provisions for gifts in view of impending death.”
(Ibid.)
The Court of Appeal then examined the possible theories
underlying the trial court’s order to destroy the sperm, holding
none was valid. The court concluded the trial court’s order
could not have been based on the will, which evidenced Kane’s
intent that Hecht would use the stored sperm to conceive
his child posthumously. (Hecht, supra, 16 Cal.App.4th at
pp. 850–851.) Nor did two settlement agreements between Hecht
and Kane’s children contemplate destroying the sperm; indeed,
Hecht argued that at least one of the agreements required
distribution of the sperm to her. (Id. at pp. 842–843, 851.)
Finally, the court rejected the argument that it was
contrary to public policy for Hecht to conceive Kane’s child after
his death. Specifically, the court held the real parties in interest
failed to establish that the public policy of California prohibited
either the artificial insemination of an unmarried woman or
posthumous conception. (Hecht, supra, 16 Cal.App.4th at
pp. 855, 858–861.)
As to posthumous conception, the court stated “real parties
do not cite any authority establishing the propriety of this court,
or any court, to make the value judgment as to whether it is
better for such a potential child not to be born, assuming that
both gamete providers wish to conceive the child. In other words,
assuming that both Hecht and decedent desired to conceive a
child using decedent’s sperm, real parties fail to establish a
state interest sufficient to justify interference with that
17
decision. . . . [W]e are aware of no statutes in California which
contain a ‘statement of public policy which reveals an interest
that could justify infringing on gamete-providers’ decisional
authority . . . .’ ” (Hecht, supra, 16 Cal.App.4th at p. 858.)
In reaching its holding, the Hecht court made clear the
limits of what it was deciding. It expressed no opinion as to the
validity or enforceability of Kane’s will or the storage agreement,
noting only that the record did not indicate the probate court
made any such determination in ordering the sperm destroyed.
(Hecht, supra, 16 Cal.App.4th at pp. 850–851.) The Hecht court
also assumed, but did not decide, that Kane intended for Hecht to
use the sperm to conceive a child posthumously. (Id. at p. 851.)
Similarly, the court eschewed deciding whether the sperm should
be distributed to Hecht.9 (Hecht, at p. 852.)
B. Kievernagel
Kievernagel relied on Hecht to conclude that “in
determining the disposition of gametic material, to which no
other party has contributed and thus another party’s right to
procreational autonomy is not implicated, the intent of the donor
must control.” (Kievernagel, supra, 166 Cal.App.4th at p. 1025.)
Thus, a widow did not have the right to use her deceased
husband’s stored sperm to conceive a child when this was
9 “[T]he issues of decedent’s actual intention and the right
of any party to actual distribution or possession of the sperm
are not before us and must await the resolution of other issues in
this case. For these same reasons, we must deny that part of
Hecht’s petition which seeks a writ directing the superior court to
distribute the sperm to her. Such a writ is premature
because many issues remain unadjudicated.” (Hecht, supra,
16 Cal.App.4th at pp. 851–852.)
18
contrary to the husband’s intent, as evidenced by a signed storage
agreement providing that the sperm be discarded upon his
death.10 (Kievernagel, at pp. 1025, 1030–1031.)
The Court of Appeal “agree[d] with the Hecht court that
gametic material, with its potential to produce life, is a unique
type of property and thus not governed by the general laws
relating to gifts or personal property or transfer of personal
property upon death.” (Kievernagel, supra, 166 Cal.App.4th at
p. 1030.) The court also agreed that the deceased husband, “as
the person who provided the gametic material, had at his death
an interest, in the nature of ownership, to the extent he had
decisionmaking authority as to the use of the gametic material
for reproduction.” (Id. at pp. 1030–1031.) Thus, it was proper to
“[use] the intent of the donor to determine the disposition of
gametic material upon the donor’s death.” (Id. at p. 1031.)
The court concluded its holding was consistent with
statutory law. It noted that Probate Code section 249.5 permits a
child conceived and born following the death of a decedent to be
“deemed to have been born within the decedent’s lifetime, if,
among other things, it is proved by clear and convincing evidence
that the decedent specified in writing ‘that his or her genetic
material shall be used for the posthumous conception of a child.’ ”
(Kievernagel, supra, 166 Cal.App.4th at p. 1031.) The court also
referred to a person’s right under the Uniform Anatomical Gift
Act “to make, amend, revoke, or refuse to make a donation of any
part of his body to take effect after his death.” (Kievernagel,
10 In Kievernagel, the decedent’s parents, as interested
parties, objected to the widow’s using the sperm for posthumous
conception, thus bringing the issue before the probate court.
(Kievernagel, supra, 166 Cal.App.4th at p. 1026.)
19
at p. 1031, citing Health & Saf. Code, §§ 7150.20–7150.30.) The
court stated, “This law suggests that when the issue is
postmortem reproduction using gametic material from a deceased
donor, the decedent’s intent as to such use should control.”
(Kievernagel, at p. 1031.)
The court rejected the widow’s arguments that denying her
the use of the sperm infringed upon “the fundamental right of the
donee spouse to procreate” or that the court should apply a
balancing test from the Davis preembryo case to decide whose
interests should prevail.11 (Kievernagel, supra, 166 Cal.App.4th
at p. 1032.) The court quoted Davis: “ ‘[T]he right of
procreational autonomy is composed of two rights of equal
significance—the right to procreate and the right to avoid
procreation.’ ” (Kievernagel, at p. 1032, quoting Davis, supra,
842 S.W.2d at p. 601.) “The right of procreative autonomy
11 The balancing test from Davis provides that “disputes
involving the disposition of preembryos produced by in vitro
fertilization should be resolved, first, by looking to the
preferences of the progenitors. If their wishes cannot be
ascertained, or if there is dispute, then their prior agreement
concerning disposition should be carried out. If no prior
agreement exists, then the relative interests of the parties in
using or not using the preembryos must be weighed. Ordinarily,
the party wishing to avoid procreation should prevail, assuming
that the other party has a reasonable possibility of achieving
parenthood by means other than use of the preembryos in
question. If no other reasonable alternatives exist, then the
argument in favor of using the preembryos to achieve pregnancy
should be considered. However, if the party seeking control of the
preembryos intends merely to donate them to another couple, the
objecting party obviously has the greater interest and should
prevail.” (Davis, supra, 842 S.W.2d at p. 604.)
20
‘dictates that decisional authority rests in the gamete-providers
alone, at least to the extent that their decisions have an impact
upon their individual reproductive status.’ ” (Kievernagel, at
p. 1032, quoting Davis, at p. 602.)
The court noted that “[t]he material at issue is [the
deceased husband’s] sperm, not a preembryo,” and thus, unlike in
Davis, “there is only one gamete provider.” (Kievernagel, supra,
166 Cal.App.4th at p. 1032.) “Only [the deceased husband] had
‘an interest, in the nature of ownership, to the extent that he had
decisionmaking authority as to the use of his sperm for
reproduction.’ [Citation.] The disposition of [the deceased
husband’s] frozen sperm does not implicate [the widow’s] right to
procreative autonomy.” (Id. at pp. 1032–1033.)
C. Plaintiff was not legally entitled to use Aaron’s
sperm for posthumous conception
Plaintiff appears to raise three arguments as to why she is
entitled to conceive with her deceased husband’s sperm: (1) she
is Aaron’s spouse; (2) Aaron left no instructions to the contrary;
and (3) plaintiff has alleged sufficiently that it was Aaron’s intent
that she conceive with his sperm posthumously. For the reasons
discussed below, we reject each of these arguments.
1. Plaintiff’s status as Aaron’s spouse did not
entitle her to conceive with his sperm
Hecht and Kievernagel establish two principles that
undercut plaintiff’s contention that, as Aaron’s spouse, she is
entitled to conceive with his sperm. First, sperm, as gametic
material, is “a unique type of property and thus not governed
by the general laws relating to gifts or personal property or
transfer of personal property upon death.” (Kievernagel, supra,
21
166 Cal.App.4th at p. 1030; see Hecht, supra, 16 Cal.App.4th at
p. 850.) Thus, plaintiff has no entitlement to Aaron’s sperm
based on, for example, intestacy law or testamentary documents
not specifically providing for disposition of the gametic material.
In other words, the fact that plaintiff as Aaron’s spouse may be
his legal next of kin has no bearing on whether she may use his
sperm for posthumous conception.
Second, the donor’s intent controls the disposition of
gametic material upon the donor’s death. (Kievernagel, supra,
116 Cal.App.4th at p. 1031.) A spouse, not having provided the
gametes at issue, has no “ ‘interest, in the nature of ownership,’ ”
nor any “ ‘decisionmaking authority as to the use of [the gametes]
for reproduction.’ ” (Id. at pp. 1032–1033.)
Plaintiff, like the widow in Kievernagel, invokes the Davis
balancing test and argues that test favors her. We agree with
Kievernagel that the Davis test has no application when only
one spouse donated the gametes at issue. (Kievernagel, supra,
166 Cal.App.4th at p. 1032.) Such is the case here.12
Plaintiff contends that, under the Uniform Anatomical Gift
Act (UAGA) (Health & Saf. Code, § 7150 et seq.), as a spouse she
had the right to make an anatomical gift of Aaron’s tissue “for the
purpose of transplantation, therapy, research, or education.” (Id.,
§ 7150.40, subd. (a)(2).) Plaintiff argues “[a]lthough the UAGA
does not specify conception as one of the purposes [for which a
spouse may make an anatomical gift], conception reasonably falls
under ‘transplantation.’ ”
12 We express no opinion regarding the donors’ respective
rights if the gametic material at issue was the product of two
donors, such as a preembryo.
22
We reject this argument. Assuming arguendo the UAGA
applies to a person who is in an irreversible coma but is not yet
deceased, plaintiff identifies nothing in the language or the
legislative history of the UAGA suggesting the Legislature
intended that act to cover the extraction of gametes for
posthumous conception. Indeed, plaintiff appears to concede this
in her reply brief, stating, “[T]he UAGA does not directly apply to
postmortem sperm extraction for the purpose of conception,” and
“conception does not fit very well into any of the categories
covered under the scope of the UAGA.”
We agree with plaintiff’s apparent concession. The
legislative history of the bill enacting the most recent version of
the UAGA indicates that the act’s purpose is to “alleviate the
critical organ shortage by providing additional ways for making
organ, eye, and tissue donations.” (Assem. Com. on Health,
Rep. on Assem. Bill No. 1689 (2007–2008 Reg. Sess.) as amended
Apr. 11, 2007, p. 2 (Rep. on Assem. Bill No. 1689).) The report
defines “[o]rgan and tissue donation” as “the process of recovering
organs and tissues from a deceased person and transplanting
them into others in order to save or enhance the lives of those in
need.” (Ibid.) The report explains that a single donor can save
eight lives through organ donation, and improve 50 more lives
through tissue donation. (Ibid.) The report describes common
uses for transplanted tissue: Skin may be used to dress burns
and serious abrasions, bone may be used to facilitate healing and
prevent amputation in orthopedic surgery, heart valves may
replace defective valves, tendons may repair torn ligaments,
veins may be used in cardiac bypass surgery, and corneas can
restore sight. (Ibid.)
23
This legislative history indicates that “transplantation”
under the UAGA refers to taking organs and tissue from a donor
and placing them in recipients whose equivalent organs or tissue
are damaged or otherwise lacking, thus “sav[ing] or enhanc[ing]
the lives of those in need.” (Rep. on Assem. Bill No. 1689, supra,
at p. 2.) Implanting a decedent’s gametic material in a spouse,
not for the purpose of replacing damaged tissue, but to conceive a
child, does not constitute “transplantation” for purposes of the
UAGA. The UAGA therefore did not authorize plaintiff to use
Aaron’s sperm for posthumous conception. We express no opinion
as to whether the UAGA permits extraction and transplantation
of gametic material in other circumstances.
2. Absent an affirmative showing that Aaron
intended to allow plaintiff to conceive with his
sperm, plaintiff was not entitled to do so
Because plaintiff cannot rely on her status as Aaron’s
spouse to claim entitlement to use his sperm for posthumous
conception, she must instead establish that it was Aaron’s intent
that she do so. In Hecht and Kievernagel, the courts were able to
determine the donor’s intent from written documents specifically
addressing disposition of the sperm upon the donor’s death. In
contrast, Aaron provided no instructions, written or otherwise,
regarding his gametic material.
To the extent plaintiff suggests that, given the absence of
express instructions to the contrary, she was entitled to use
Aaron’s sperm to conceive a child after he died, we reject that
contention. It would be unreasonable to presume that Aaron, and
the vast majority of persons who have not left instructions for the
disposition of their gametic material upon death, thereby
intended to cede their procreational autonomy to their spouses or
24
next of kin. The more reasonable presumption, and the one we
adopt here, is that absent some affirmative indication to the
contrary, a decedent did not intend his or her gametic material
to be used for posthumous conception.
This conclusion is consistent with Probate Code
section 249.5, cited in Kievernagel, which governs the “rights to
property to be distributed upon the death of a decedent” to “a
child of the decedent conceived and born after the death of the
decedent.” (Prob. Code, § 249.5; see Kievernagel, supra,
116 Cal.App.4th at p. 1031.) Under Probate Code section 249.5, a
child conceived and born posthumously “shall be deemed to have
been born in the lifetime of the decedent, and after the execution
of all of the decedent’s testamentary instruments” only if, among
other things, “[t]he decedent, in writing, specifies that his or her
genetic material shall be used for the posthumous conception of a
child of the decedent.” (Prob. Code, § 249.5, subd. (a);
Kievernagel, at p. 1031.)
In other words, California law does not recognize a child
conceived and born posthumously as the decedent’s child for
testamentary purposes absent express indication, in writing, of
an intent to allow the use of the decedent’s genetic material for
posthumous conception. In the absence of such a writing, the
Probate Code presumes the decedent did not intend the child to
receive anything from the decedent’s estate.
We recognize Probate Code section 249.5 governs the right
of a child conceived posthumously to receive property from the
decedent’s estate, not the right of a person to conceive the child in
the first place. We need not, and do not, decide whether a spouse
wishing to conceive with a decedent’s gametic material must first
show the decedent complied with the specific requirements of
25
Probate Code section 249.5. That statutory section, however, is
consistent with our conclusion that a donor’s intent to allow the
use of his or her gametic material for posthumous conception
may not be presumed from the donor’s silence, but must be
affirmatively shown.
Plaintiff cites Vernoff v. Astrue (9th Cir. 2009) 568 F.3d
1102 (Vernoff), for the proposition that she was entitled to extract
Aaron’s sperm to conceive a child. Vernoff relied in part on
California law to hold that a child conceived and born after the
death of her biological father was not entitled to Social Security
child survivor benefits. (Id. at p. 1104.) Plaintiff argues that in
Vernoff, “no issue was raised concerning whether harvesting the
husband’s sperm without his consent was illegal; all implicitly
agreed the act of harvesting the sperm without the husband’s
consent was lawful.”
“Cases are not authority, of course, for issues not raised
and resolved.” (San Diego Gas & Electric Co. v. Superior Court
(1996) 13 Cal. 4th 893, 943.) As plaintiff concedes, Vernoff
does not address whether the sperm harvesting was lawful, and
therefore provides no authority on that point. Vernoff does not
“implicitly” suggest that California law allows posthumous
conception without the decedent’s consent. Indeed, the Ninth
Circuit concluded that, given the lack of evidence that the
decedent had consented to the posthumous conception, under
California law he could not be deemed the child’s “natural
parent” for purposes of entitling her to federal survivor benefits.
(Vernoff, supra, 568 F.3d at pp. 1107-1110.)
26
3. The SAC fails to allege that it was Aaron’s
intent that his sperm be used for posthumous
conception
We look to the SAC to determine whether it alleges facts
establishing that Aaron intended that his gametic material be
used for posthumous conception. The only allegations regarding
Aaron’s intent were plaintiff’s representation to Aaron’s
physicians that Aaron “always desired to have children” with her,
and “letters or cards that had been written by Aaron prior to his
stroke wherein he expressed his desire to have children with his
wife.” Plaintiff argues these allegations are sufficient to survive
demurrer, and the issue of Aaron’s intent “is one of fact for a
jury.”13
We disagree; her allegations of intent are insufficient as a
matter of law. Aaron did not consent to the extraction of his
sperm, and there are no allegations that he and plaintiff
discussed posthumous conception, or that he contemplated that
possibility at all.14 There is therefore no reason to think his
statements that he wished to have children with plaintiff are
anything more than the commonly expressed sentiment among
married couples that someday they would like to conceive and
raise children together. Those statements, without more, are
13 Plaintiff makes these arguments in the context of
whether Aaron consented to the extraction of his sperm, but they
apply equally to the question of whether he intended his sperm to
be used for posthumous conception.
14In noting that these allegations are absent from the
SAC, we do not intend to suggest that, had they been made, they
would have been sufficient to establish an intent to permit
posthumous conception. On that question we express no opinion.
27
insufficient as a matter of law to allege that Aaron contemplated,
much less sanctioned, using his sperm for posthumous
conception.15
The SAC therefore fails to allege facts establishing that
plaintiff was entitled to use Aaron’s stored sperm for conception.
Plaintiff has not requested leave to amend the SAC to add
further allegations establishing Aaron’s intent, nor has she
identified any additional allegations she might add. (Churchman
v. Bay Area Rapid Transit Dist. (2019) 39 Cal. App. 5th 246, 252
[it is plaintiff’s burden to show how amendment can cure defects
in complaint].)
Plaintiff cites Matter of Zhu (N.Y.Sup.Ct. 2019) 64 Misc. 3d
280 (Zhu), a ruling by a New York trial court allowing the
parents of a West Point cadet to extract his sperm after he was
declared brain dead following a ski accident. (Id. at p. 281.) The
court “place[d] no restrictions on the use to which [the] parents
may ultimately put their son’s sperm, including its potential use
for procreative purposes.”16 (Id. at p. 288.) The New York court
determined the parents’ wishes were consistent with the cadet’s
“presumed intent” based on the cadet’s signing of an organ and
15 To the extent UCLA Medical Center’s risk management
department and ethics panel allegedly concluded otherwise, we
are not bound by those determinations.
16 The Zhu court cautioned: “That is not to say, however,
that petitioners may not need to surmount certain obstacles, or
confront important residual issues should they choose to seek to
use [their son’s] sperm for reproductive purposes. A specific use,
once chosen, may run afoul, or at least merit consideration, of
certain legal, practical and ethical concerns, including the
potential reluctance of medical professionals to assist in such a
procedure.” (Zhu, supra, 64 Misc.3d at p. 288.)
28
tissue donor card, and evidence that the cadet had expressed both
a desire to have children and a sense of responsibility to “carry on
his cultural and family legacy.” (Id. at pp. 284–285.) The court
also relied on New York’s intestacy and anatomical gift statutes
to conclude the parents were the individuals the cadet
“would have intended to make decisions with respect to the
preservation and disposition of the procreative fluids at issue.”
(Id. at pp. 287–288.)
We of course are not bound by rulings of trial courts or
courts of other jurisdictions. (Bolanos v. Superior Court (2008)
169 Cal. App. 4th 744, 761 [“a written trial court ruling has no
precedential value”]; Gentis v. Safeguard Business Systems, Inc.
(1998) 60 Cal. App. 4th 1294, 1306 [“California courts are not
bound by decisions in other jurisdictions”].)
Zhu also is not persuasive. As we have discussed, neither
California’s intestacy law nor the UAGA applies to a spouse’s use
of gametic material for posthumous conception, so to the extent
the analogous laws in New York provided a statutory basis for
the decision in Zhu, that basis is lacking here. Further, we
respectfully disagree that the signing of an organ donor card and
expressions of a desire to have children and carry on the family
legacy are sufficient to indicate an intention to allow one’s
gametic material to be used for posthumous conception.
D. Absent an entitlement to use Aaron’s sperm for
posthumous conception, plaintiff fails to state any
cognizable tort damages
Having concluded that plaintiff was not entitled to conceive
a child with Aaron’s sperm, we now discuss the impact of that
determination on the SAC’s tort causes of action. On appeal,
plaintiff does not challenge the trial court’s ruling sustaining the
29
demurrers to her three causes of action for violations of the
Commercial and Business and Professions Codes. We thus limit
our discussion to the causes of action for professional negligence;
negligent infliction of emotional distress; negligence; and fraud,
misrepresentation, and/or concealment.
The SAC claimed tort damages under two general theories:
First, that defendants deprived plaintiff of the opportunity to
conceive a child with her deceased husband’s sperm, and second,
that defendants impregnated other patients with the sperm
without their knowledge or consent. The trial court struck the
allegations underlying the second theory, which were pleaded on
information and belief, finding that plaintiff had failed to allege
sufficient facts supporting her belief. The trial court also
concluded that plaintiff lacked standing to assert claims on
behalf of other patients, and that defendants’ purported
misconduct regarding other patients had no bearing on plaintiff’s
damages.
On appeal, plaintiff argues she properly could make
allegations on information and belief when the matters alleged
were exclusively within defendants’ knowledge. Plaintiff makes
no argument, however, against the trial court’s alternative bases
that plaintiff lacked standing to assert claims on behalf of other
patients and that defendants’ alleged misconduct towards other
patients had no bearing on her damages. Indeed, plaintiff does
not make any arguments at all on appeal regarding the
allegations concerning the other patients. We thus consider
forfeited any challenge to the trial court’s ruling striking the
allegations concerning other patients, and express no opinion on
the merits of that ruling. (Safeway Wage & Hour Cases (2019)
30
43 Cal. App. 5th 665, 687, fn. 9 [argument forfeited if not raised in
opening brief].)
Plaintiff’s arguments on appeal instead focus on her
entitlement to tort damages based on the loss of the opportunity
to conceive a child with Aaron’s sperm. This theory underlies all
her tort causes of action. The SAC so stated in the first cause of
action for professional negligence, alleging defendants had
“denied her property and the opportunity to have a child
biologically related to her deceased Husband.” That allegation
was incorporated by reference in the other causes of action as
well. Plaintiff also claimed economic damages for “the expense of
fertility treatments that would otherwise not have been incurred”
and claimed emotional distress damages because she “suffers
daily with the knowledge that . . . Plaintiff [was] denied her
property and the opportunity to have a child biologically related
to her deceased Husband.” Apart from the stricken allegations
concerning defendants’ other patients, the SAC alleged no other
specific grounds for tort damages other than the economic and
emotional consequences of plaintiff not being able to conceive a
child with Aaron’s sperm.
Similarly, on appeal plaintiff asserts no basis for tort
damages other than the loss of the opportunity to conceive with
Aaron’s sperm. Her damages argument is based on rulings and
opinions from other jurisdictions permitting tort causes of action
when loss of stored gametic material denied plaintiffs the
opportunity to conceive a child. (See Jeter v. Mayo Clinic Arizona
(Ariz.Ct.App. 2005) 121 P.3d 1256, 1260, 1272–1273 [married
couple stated cause of action for negligence when clinic lost their
preembryos, thus requiring plaintiffs to undergo additional
procedures to conceive children]; Witt v. Yale-New Haven Hosp.
31
(Conn.Super.Ct. 2008) 977 A.2d 779, 788, 794 [plaintiffs
stated claims for negligent and intentional infliction of
emotional distress when fertility center’s loss of ovarian tissue
“destroy[ed] any hope they had of potentially conceiving a child
together”]; Del Zio v. Presbyterian Hosp. in New York (S.D.N.Y.
Nov. 9, 1978, No. 74 Civ. 3588 (CES)), 1978 U.S. Dist. LEXIS
14450, at pp. *2–*4, *12–*14 [sufficient evidence of intentional
infliction of emotional distress when defendants destroyed
culture prepared for in vitro fertilization that was plaintiff’s last
opportunity to become pregnant].)
As set forth above, plaintiff was not legally entitled to use
Aaron’s sperm to conceive a child, even if defendants had not lost
the sperm. Thus, her position that defendants deprived her of
that opportunity is without merit, and the cases she cites are
inapposite. Plaintiff on appeal identifies no other basis for tort
damages apart from the loss of the opportunity to conceive. She
therefore has failed to allege cognizable tort damages.
Plaintiff argues that defendants have failed to provide any
support for the proposition that she cannot recover emotional
distress damages absent a legal entitlement to use the sperm for
posthumous conception. Plaintiff misconstrues the burden on
appeal, which requires her, not defendants, to show error.
(Hernandez v. First Student, Inc. (2019) 37 Cal. App. 5th 270, 277
[appealed judgment presumed correct, and appellant has burden
to overcome that presumption].)
Plaintiff argues that the question of her entitlement to use
the sperm is not at issue in this case: “At issue here is not an
attempt to use the sperm but, rather, to recover damages for lost
sperm against a storage facility. [Plaintiff] is not seeking to
compel a doctor to perform a medical procedure so that she is
32
able to have a child with Aaron. Whatever potential defenses a
doctor might have concerning [plaintiff’s] right to possess and
make use of Aaron’s sperm, those defenses are not available to
these particular respondents here.”
Plaintiff acknowledges in the above quoted argument that
she is seeking to recover damages for the lost sperm. As plaintiff
states in her brief, however, “Sperm has no value if it cannot
actually be used.” Thus, the question of whether plaintiff is
legally entitled to use the sperm is directly relevant to whether
defendants caused her any damages. Plaintiff has failed to allege
facts establishing that she legally could use the sperm to conceive
a child. Defendants thus could not cause her harm by depriving
her of an opportunity she did not have.17
E. Plaintiff cannot recover emotional distress damages
on her breach of contract cause of action
Plaintiff challenges the trial court’s ruling sustaining
demurrers and motions to strike against the fourth amended
complaint on the basis that it continued to allege “tort damages,
emotional distress, loss of fertility interests, etc.” Plaintiff argues
“[a] plaintiff may recover emotional distress damages resulting
from a defendant’s breach of a contract when the defendant has
reason to know that, by the nature of the subject matter of the
contract, a breach would result in mental suffering by the
plaintiff.” Plaintiff does not otherwise challenge the trial court’s
rulings concerning the fourth amended complaint.
17 Because we conclude the SAC failed to plead cognizable
tort damages, we decline to address the trial court’s other bases
for sustaining the demurrers.
33
Plaintiff cites Windeler v. Scheers Jewelers (1970)
8 Cal. App. 3d 844 (Windeler), which stated, “ ‘Whenever the
terms of a contract relate to matters which concern directly the
comfort, happiness, or personal welfare of one of the parties, or
the subject matter of which is such as directly to affect or move
the affection, self-esteem, or tender feelings of that party, he
may recover damages for physical suffering or illness proximately
caused by its breach.’ [Citation.] In its application this rule
permits recovery of damages for mental suffering.” (Id.
at p. 851.)
In Windeler, the court held the plaintiff could recover
damages for emotional distress when a jeweler breached a
bailment contract by losing plaintiff’s rings. (Windeler, supra,
8 Cal.App.3d at p. 852.) This was because “at the time the
bailment was created, plaintiff made known to defendant that the
rings were cherished mementos of her husband and were old
family rings which, because of their sentimental value, she
wished to have made into an heirloom for her daughter. This was
a special circumstance known to both of the parties at the time
the contract was entered into.” (Ibid.) Thus, the plaintiff could
recover for personal injury “proximately resulting from such loss,
in addition to the damages sustained because of the actual loss.”
(Ibid.)
Plaintiff also cites Allen v. Jones (1980) 104 Cal. App. 3d 207
(Allen), which stated that mental distress damages may be
awarded for breach of “certain contracts which so affect the vital
concerns of the individual that severe mental distress is a
foreseeable result of breach.” (Id. at p. 211.) In that case, the
plaintiff could recover against a mortuary that lost the cremated
remains of his brother: “Public policy requires that mortuaries
34
adhere to a high standard of care in view of the psychological
devastation likely to result from any mistake which upsets the
expectations of the decedent’s bereaved family. As mental
distress is a highly foreseeable result of such conduct and in most
cases the only form of damage likely to ensue, recovery for mental
distress is a useful and necessary means to maintain the
standards of the profession and is the only way in which the
victims may be compensated for the wrongs they have suffered.”
(Id. at p. 214.)18
Plaintiff argues that “[a]ny reasonable storage facility
preserving a widow’s deceased husband’s sperm would
understand the widow would have hopes of having a future child
using her husband’s sperm. Therefore, any reasonable storage
facility in that position would foresee that, if the facility were to
lose the sperm, the widow suffering that lost hope to have that
connection with her deceased husband would suffer severe
mental distress.”
Plaintiff’s argument again is premised on her position that
defendants’ alleged misconduct destroyed her opportunity to have
a child biologically related to her husband. Her argument fails
for the same reason her arguments in favor of her tort causes of
action in the SAC fail—plaintiff was not legally entitled to
conceive a child posthumously with Aaron’s sperm in the first
place. Again, plaintiff fails to explain how she is entitled to
damages for emotional distress based on the loss of an
18 In Allen, the plaintiff “pleaded an action in tort as well
as in contract,” and thus the court did not have to decide
“whether mental distress damages alone can ever support an
action for breach of contract.” (Allen, supra, 104 Cal.App.3d
at p. 213.)
35
opportunity she never had. In contrast, Windeler and Allen
involved the loss of items to which the plaintiffs in those cases
were indisputably entitled. The trial court did not err in
disallowing plaintiff from recovering emotional distress damages
on her breach of contract cause of action.
DISPOSITION
The judgment is affirmed. Defendants are awarded their
costs on appeal.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
36