Boyd

I dissent. In my opinion Count II states a cause of action in fraud and deceit.

Count II effectually alleges that defendant, with knowledge that plaintiff would thereby lose valuable rights in the nature of pensions, represented (promised) to her that he would live with and support her, a representation which he *383 made without any intent to perform but which she believed, relied and acted upon to her damage.

There is no question that this, at common law, would state a cause of action in deceit, and that the common law is applicable in California unless changed by statute. When, therefore, we turn to Civil Code section 43.4 to determine whether it destroys this cause of action we must do so obedient to the rule that statutes in derogation of the common law shall be strictly construed. The section includes provision that “A fraudulent promise to . . . cohabit after marriage does not give rise to a cause of action for damages.” (Italics added.)

As the opinion of Justice Friedman points out, this section was written into the anti-heart-balm law after Langley v. Schumacker (June 1956) 46 Cal.2d 601 [ 297 P.2d 977 ], and no doubt with that opinion in mind. The facts in Langley…

According to her complaint, plaintiff’s first husband died in 1956. Following his demise she commenced receiving monthly payments of $75 from the Veter *376 ans Administration and $78.80 as a social security allowance. Plaintiff became engaged to defendant in February 1959 and married him on December 17, 1961. After two days defendant left her and has since refused to live with her and to support her. As a result of the marriage the Veterans Administration and the social security authorities terminated her monthly payments. Her amended complaint, in three counts, seeks an award of damage. The core of Count I consists of allegations that defendant breached an express oral promise to live with and support plaintiff. Count II is based on the allegation that, with full knowledge of her government payments, he fraudulently made promises to live with and support her without any intention of fulfilling these promises. Count III alleges that he negligently married her or negligently left her without reasonable care as to her support.

The lower court sustained a general demurrer to this complaint and plaintiff failed to amend. Judgment was entered for defendant and plaintiff appeals. The…

According to her complaint, plaintiff's first husband died in 1956. Following his demise she commenced receiving monthly payments of $75 from the Veterans Administration and $78.80 as a social security allowance. Plaintiff became engaged to defendant in February 1959 and married him on December 17, 1961. After two days defendant left her and has since refused to live with her and to support her. As a result of the marriage the Veterans Administration and the social security authorities terminated her monthly payments. Her amended complaint, in three counts, seeks an award of damage. The core of Count I consists of allegations that defendant breached an express oral promise to live with and support plaintiff. Count II is based on the allegation that, with full knowledge of her government payments, he fraudulently made promises to live with and support her without any intention of fulfilling these promises. Count III alleges that he negligently married her or negligently left her without reasonable care as to her support.

The lower court sustained a general demurrer to this complaint and plaintiff failed to amend. Judgment was entered for defendant and plaintiff…