Kathleen K. v. Robert B.

In this action, plaintiff and appellant Kathleen K. seeks damages because she contracted genital herpes, allegedly by way of sexual intercourse with defendant and respondent Robert B. The trial court granted respondent’s motion for judgment on the pleadings based upon failure to state a cause of action. We reverse the judgment.

Since judgment on the pleadings is similar to a judgment following the sustaining of a demurrer, the standard of appellate review is the same. Like the demurrer, the motion for judgment on the pleadings is confined to the face of the pleading under attack, and the allegations of the pleading must be accepted as true. (4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 162, pp. 2817-2818; Baillargeon v. Department of Water & Power (1977) 69 Cal.App.3d 670, 675-676 [ 138 Cal.Rptr. 338 ].)

The complaint sets forth four causes of action: (1) negligence (alleging that respondent inflicted injury upon appellant by having sexual intercourse with her at a time when he knew, or in the exercise of reasonable care should have known, that he was a carrier of venereal disease); (2) battery; (3) intentional infliction of emotional distress;…