Thursday, August 25, 2011
S.C. Denies Review to Man Who Sued Employer of Wife’s Paramour Over Breakup of Marriage
By a MetNews Staff Writer
The California Supreme Court yesterday unanimously denied review of a Third District Court of Appeal ruling that denied a cuckolded husband the right to sue the employer of his wife’s paramour.
Mark Cohen sued Challenger Sports Corporation, which sponsors soccer camps for children in the United States, conducted by visiting British coaches. Cohen claimed that he availed himself of Challenger’s offer of $80 off the cost of the one-week camp in 2007 in exchange for providing room and board to one of the coaches, but got something quite different than what he bargained for.
Cohen, whose 9-year-old daughter and 6-year-old son participated in the camp, claims that houseguest/coach Dai Redwood seduced his wife, who eventually moved out of the master bedroom, drained the family bank account, and served him with a divorce petition.
His complaint asserted causes of action for breach of contract, fraudulent inducement, negligence and fraud. Challenger, he said, represented Redwood as a “good guy” who would teach “lessons in respect, responsibility, integrity, sportsmanship and leadership,” when in fact he was a heavy-drinking womanizer who destroyed the plaintiff’s marriage, taught Cohen’s young son how to drink beer, and subjected Cohen to public ridicule.
But a Sacramento Superior Court judge, sustaining Challenger’s demurrer, said Cohen was really suing for alienation of affection, a cause of action abolished by the “anti-heart balm” statute enacted in 1939.
Presiding Justice Vance Raye, in an unpublished June 7 opinion for the Court of Appeal, agreed.
“[P]laintiff cannot circumvent [Civil Code] section 43.5 by disguising a claim for alienation of affection as a breach of contract, negligence, or fraud claim,” the presiding justice wrote. Besides, Raye said, even if Cohen had a valid claim against Redwood, he would not have one against Challenger.
“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,” Raye wrote.
The court also rejected Cohen’s claim that he suffered mental distress as a result of seeing a photo of 6-year-old holding a beer bottle to his lips. Both the trial judge and the appellate panel concluded that if there was tortious conduct, the direct victim would have been the child, and this was not the type of outrageous conduct that would allow the imposition of “bystander” liability.
This is particularly so, Raye said, because the plaintiff did not see the photo until months after the incident allegedly occurred and there was no claim of physical harm to either the father or the son.
The Supreme Court unanimously agreed not to review the case, Cohen v. Challenger Sports, C063975.
Copyright 2011, Metropolitan News Company