Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34200900031484CUFRGDS.
RAYE, P. J.
Plaintiff Mark Cohen’s wife had a consensual affair with a soccer coach who lived in their home for a week while the Cohens’ children attended a soccer camp sponsored by defendant Challenger Sports Corporation, and soon thereafter she filed for divorce. In an attempt to circumvent Civil Code section 43.5, which abolished causes of action emanating from the alienation of affection over 70 years ago, plaintiff’s complaint for breach of contract, negligence, fraudulent inducement to contract, and fraud alleges the coach that defendant provided to temporarily reside with plaintiff’s family had a known propensity for loose conduct unbefitting a house guest associating with young children, contrary to a promise to provide a “good guy” who would provide moral lessons in “respect, ” “integrity, ” and “responsibility.” The trial court sustained defendant’s demurrer without leave to amend because the gravamen of the action is the long dead cause of action for alienation of affection and defendant had no independent duty to plaintiff. We affirm.
FACTUAL ALLEGATIONS
Because this is an appeal from a judgment of dismissal following the sustaining of a demurrer without leave to amend, we must assume the truth of all the factual allegations set forth in plaintiff’s complaint. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) Thus, the relevant factual allegations for each of the causes of action follow. We borrow liberally from defendant’s apt summary of the first amended complaint (the complaint).
As part of its promotion of British soccer camps throughout the United States, defendant offered a “Host Family” program whereby participants received an $80 credit toward the cost of soccer camp fees by providing room and board to one of defendant’s coaches during soccer camp. Plaintiff accepted the Host Family program offer, allowing coach Dai Redwood to live in his home for one week while his nine-year-old daughter and six-year-old son participated in the June 2007 British soccer camp.
The complaint alleged in the first cause of action that defendant “breached its oral contract with [plaintiff] when it placed Coach Redwood in plaintiff Mr. Cohen’s family home, ” because “Coach Redwood was not the ‘good guy’ it had represented him to be and certainly did not provide his children with ‘lessons in respect, responsibility, integrity, sportsmanship and leadership.’” For breach of this contract, plaintiff sought compensatory damages “for all detriment proximately caused him by defendant’s... breach of contract by failing to place a staff soccer coach ‘good guy’ with a ‘Host Family’ who would provide his children with ‘lessons in respect, responsibility, integrity, sportsmanship and leadership.’”
The second cause of action for fraudulent inducement to enter into the contract alleged that plaintiff relied upon defendant’s “good guy” representation and promise of moral “lessons” in contracting to be a host family. These misrepresentations induced plaintiff to enter into an oral contract and “[a]s a result, Coach Redwood was provided access to plaintiff Mr. Cohen’s family and home. While living in plaintiff Mr. Cohen’s home with his family, Coach Redwood excessively drank alcohol with Mr. Cohen’s wife, Coach Redwood made sexual advances towards plaintiff Mr. Cohen’s wife, Coach Redwood encouraged and facilitated Mr. Cohen’s six (6) year old son to drink alcohol, Coach Redwood caused conflict between Mr. Cohen and his wife, and Coach Redwood’s relationship with plaintiff Mr. Cohen’s wife caused plaintiff Mr. Cohen’s wife to serve her husband with divorce papers on or about February 1, 2008.”
Plaintiff alleged general and special damages as a result of defendant’s fraudulent inducement as follows: “[P]laintiff Mr. Cohen has and will continue to suffer severe emotional distress related to his pending divorce, severe emotional distress due to reduced custody and interaction with his children due to the pending divorce, severe emotional distress caused by humiliation related to Coach Redwood’s affair with his wife in his neighborhood community, substantial financial losses related to his pending divorce, and other general and special damages not fully known at this time.”
The third cause of action for negligence and the fourth cause of action for fraud alleged the same damages as a proximate result of defendant’s misconduct in not providing true information about the soccer coach’s alleged background and lifestyle. According to plaintiff, the true facts were that Coach Redwood had a significant history of excessively drinking alcohol, womanizing, and partying. He was identified with multiple pornographic Web sites and regularly posted provocative pictures of himself and other people on an Internet site. He “encouraged and facilitated Mr. Cohen’s six (6) year old son to drink alcohol.” Plaintiff argued with his wife about her relationship with Coach Redwood and his inappropriate conduct, and eventually she moved out of the master bedroom and drained their bank account. Ultimately, she served plaintiff with a petition for dissolution of marriage.
The trial court sustained defendant’s demurrer without leave to amend. It explained: “[W]ith the facts pled here, I think everything comes back to damages allegedly flowing from Mrs. Cohen taking up with Mr. Redwood. There’s no other way of looking at it. That’s what the complaint says. [¶] And as [defendant’s counsel] pointed out, the drinking beer –- I mean, the son is not a plaintiff. And I’m not sure how a photo of the son with a bottle of Corona to his lips is something that would support a claim for emotional distress damages. And I haven’t heard any facts -- new facts here today that would tell me that there would be something you could do to amend the complaint to get away from the alienation of affection claim.”
Plaintiff appeals. Our review from an order of dismissal after an order sustaining a demurrer is de novo. (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439.) We review the denial of leave to amend for an abuse of discretion. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
DISCUSSION
Civil Code section 43.5, sometimes referred to as the “anti-heart-balm statute, ” expressly provides there is no cause of action for alienation of affection, criminal conversation, seduction of a person over the age of legal consent, or for breach of a promise of marriage. The Legislature recognized that claims for alienation of affection and seduction were “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.” (Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789.)
All further undesignated statutory references are to the Civil Code.
Relying on Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 (Molien) and Wynn v. Monterey Club (1980) 111 Cal.App.3d 789 (Wynn), plaintiff insists that section 43.5 does not bar his emotional distress damages resulting from marital discord leading to dissolution of the marriage because defendant breached duties independent of a claim prohibited by section 43.5. Plaintiff misunderstands the authority he cites, ignores pertinent authority, and would have us apply the statute in a manner at odds with the express prohibition of lawsuits based on an alienation of affection or seduction of a consenting adult.
Neither Molien nor Wynn involved a paramour or any claim related to alienation or seduction. Molien was a medical malpractice case based on a doctor’s negligent diagnosis that his married patient had syphilis. (Molien, supra, 27 Cal.3d at p. 919.) In a landmark decision, the California Supreme Court held that the patient’s husband could state a claim for emotional distress damages in the absence of a physical injury. (Id. at p. 923.) The case does not even mention section 43.5, precisely because the facts bear no resemblance to those before us and, in the absence of a paramour, there were no facts to trigger section 43.5’s blanket prohibition of claims arising from alienation of affection or seduction.
In Wynn, the plaintiff’s wife was a compulsive gambler. (Wynn, supra, 111 Cal.App.3d at p. 794.) The plaintiff agreed to pay two casinos her debts in exchange for the casinos’ promises to bar her from the establishments in the future. (Id. at p. 794.) The Court of Appeal reversed a summary judgment in the casinos’ favor. (Id. at p. 801.) The court found the defendants were on notice that a breach of the agreement would result in the plaintiff’s emotional and mental suffering. The court noted that section 43.5 did not apply, pointing out that the Supreme Court had not been troubled by the anti-heart-balm prohibition in Molien. (Wynn, at pp. 800-801.) But, as in Molien, Wynn does not involve a paramour and the facts are not remotely similar, or even analogous, to the case before us.
Jacqueline R. v. Household of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198 (Jacqueline R.), by contrast, illustrates the scope of the section 43.5 prohibition. In Jacqueline R., the paramour was the wife’s pastor. The pastor engaged in consensual sexual conduct with the wife during marriage counseling. (Jacqueline R., at p. 201.) The court explored the foundational issue of duty. “Duty is the crux of this case. Without it, all that remains is a lawsuit for alienation of affections –- a ‘long-dead cause[] of action. [Citations.]’ [Citation.] ‘The gist of the tort is not sexual intimacy but an interference with the marital relation that changes one spouse’s mental attitude toward the other.’ [Citation.] The Legislature abolished this and other related causes of action in 1939 when it enacted Civil Code section 43.5.” (Jacqueline R., at p. 203.)
The husband and wife in Jacqueline R., like plaintiff, argued that section 43.5 did not bar their claim because the sexual misconduct breached an independent duty of care. The court rejected the notion that an independent duty of care to refrain from engaging in sexual conduct that is harmful to the person being counseled exists in the context of pastoral counseling. It distinguished those cases that involved licensed therapists, who by virtue of the relevant statutory licensing schemes did in fact have an independent duty of care. Even when that narrow exception to section 43.5 applies, the court recognized, a plaintiff must “show there was a professional relationship and a connection between the purpose of the professional relationship and the wrongful conduct.” (Jacqueline R., supra, 97 Cal.App.4th at p. 204.)
If the relationship between a pastor and his parishioner during counseling does not trigger a duty to refrain from sexual conduct, then surely such a duty does not arise from the relationship between a host family and a short-term houseguest. Duty, as the court in Jacqueline R. highlighted, is the crux of the exception to section 43.5, and therefore where, as here, there is no independent professional duty akin to the duty a licensed psychologist has to his or her patient, there simply is no lawsuit.
Plaintiff argues that defendant contracted to provide a “good guy” who would provide moral “lessons” in “respect, ” “integrity, ” and “responsibility” and made false representations that a “good guy” coach would teach these moral “lessons.” He insists that the terminology he used in his complaint is sufficiently certain to survive demurrer. We need not decide whether the pleading is sufficiently definite to be enforced because we conclude that section 43.5 bars the action no matter how otherwise enforceable the language might be, and plaintiff cannot circumvent section 43.5 by disguising a claim for alienation of affection as a breach of contract, negligence, or fraud claim.
Moreover, a generous body of law holds that an employee’s sexual conduct involving a third party is not within the scope of employment for purposes of respondeat superior liability. (See Jeffrey E. v. Central Baptist Church (1988) 197 Cal.App.3d 718; Rita M. v. Roman Catholic Archbishop (1986) 187 Cal.App.3d 1453; Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133.) “In those decisions, vicarious liability was rejected as a matter of law because it could not be demonstrated that the various acts of sexual misconduct arose from the conduct of the respective enterprises. In particular, the acts had been undertaken solely for the employees’ personal gratification and had no purpose connected to the employment. Moreover, the acts had not been engendered by events or conditions relating to any employment duties or tasks; nor had they been necessary to the employees’ comfort, convenience, health, or welfare while at work.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1007.)
Defendant hired Coach Redwood to teach children sportsmanship and how to play soccer. We agree with defendant that the alleged affair between a coach and a consenting adult is not within the scope of the coach’s employment and the misconduct is simply too attenuated to be deemed as falling within the range of risks allocable to a sports camp employer.
Nor do we believe that imposition of such an amorphous duty would promote a worthy public policy. The Legislature has already articulated the policy of the state to preclude recovery for breach of moral duties relating to marital interference. The duty plaintiff proposes is in derogation of the express language of section 43.5. Moreover, such a duty is unsound and untenable because the ensuing litigation would intrude on the jurisdiction of the family law courts as the exclusive arbiters of marital dissolution and expand liability for any number of businesses that provide services in the home.
Plaintiff urges us to save his claim for the damages he suffered from viewing a photograph of his son with a beer provided by Coach Redwood even if we reject his other claims based on the affair. He contends the breach of contract makes him a “direct victim” of this “outrageous conduct because it constitutes a criminal act against a child, Bus. & Prof. Code §25658(a).” Plaintiff does not satisfy the rigid requirements to recover damages as a bystander.
“In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)
Plaintiff does not allege that he was present at the time Coach Redwood gave his son a beer. Rather, he saw a photograph of his son with a beer to his lips several months later. Nor does he allege that either he or his son sustained a physical injury. Thus, he has not stated a viable claim for any emotional distress damages he purportedly suffered from viewing the photograph.
Finally, we cannot say the court abused its discretion by sustaining the demurrer without leave to amend. Plaintiff fails to demonstrate that he could amend his complaint to state a viable cause of action that would not violate section 43.5. Indeed, in his opening brief he did not even try. We agree with the trial court that the gravamen of this lawsuit is the affair between plaintiff’s wife and Coach Redwood and the ensuing dissolution of plaintiff’s marriage. We can find nothing in the record to suggest that the flaws in plaintiff’s complaint can be cured. As a result, the lawsuit was properly dismissed.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: HULL, J., BUTZ, J.