Barbara A. v. John G.

*373 Opinion

The issue presented in this appeal is whether a woman (appellant) suffering injuries from an ectopic pregnancy 1 has a cause of action in tort against the responsible man (respondent) for his misrepresentations of infertility. The trial court ruled that no cause of action would lie and granted respondent’s motion for judgment on the pleadings. We reverse the judgment.

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. 2 The court overruled the demurrer to…

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 . . . [1] (c) Seduction of a person over the age of legal consent.”

*386 The Legislature in abolishing the seduction cause of action in 1939 labeled the antiheart balm statute as “Wrongs not actionable. ” Clearly the majority’s assertion that “for every wrong there is a remedy” doesn’t apply in the instant case.

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…

Mary Cynthia Dunlap for Cross-complainant and Appellant.

Long & Levit, Ronald E. Mallen, Donald W. Carlson and Marsha L. Morrow for Cross-defendant and Respondent.

OPINION

BARRY-DEAL, J.

The issue presented in this appeal is whether a woman (appellant) suffering injuries from an ectopic pregnancy [1] has a cause of action in tort against the responsible man (respondent) for his misrepresentations of infertility. The trial court ruled that no cause of action would lie and granted respondent's motion for judgment on the pleadings. We reverse the judgment.

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…