Wife Has No Cause of Action for Emotional Suffering

Wednesday, December 30, 2015

Page 3

Wife Has No Cause of Action for Emotional Suffering—C.A.

Husband Who Left Videos of Himself Having Sex With Another Woman, Where Wife Would Be Apt to See Them, Is Not Liable

By a MetNews Staff Writer

A wife who found photographs and videos on her husband’s computer, which she regularly used, depicting him having unprotected sex with another woman has no cause of action for intentional or negligent infliction of emotional distress, the Court of Appeal has ruled.

The opinion, by Justice Maria P. Rivera of the First District’s Div. Four, affirms a judgment of dismissal, entered after Alameda Superior Court Judge John True III sustained a demurrer without leave to amend to the first amended complaint.

Rivera recited in the unpublished opinion, filed Monday, that True found “that it was improper for wife to raise disputes for damages that were or could be resolved in the dissolution action,” adding:

“The court reasoned that the courts look with disfavor on civil actions which are nothing more than a reframing of a family law case.”

The plaintiff, Erin Dawn Belken, insisted that there was nothing in her tort action that overlapped issues in the divorce proceeding against her husband, Chevron Corporation business analyst Casey Belken. She sought damages for the emotional harm—including anxiety over possible infection with AIDS—as well as costs of therapy and medical treatment.

But Rivera, contradicting Civil Code §3523—“For every wrong there is a remedy”—said it has been recognized that “that there are many wrongs for which the law does not provide a remedy.”

She wrote:

“[A]llegations of betrayal and heartless disregard of the feelings of others, which are essentially the allegations here, are not ones for which the courts provide redress.”

The jurist pointed to the California’s “anti-heart-balm statutes,” noting, in particular, Civil Code §43.5, enacted in 1939, which provides: “No cause of action arises for: [¶] (a) Alienation of affection….”

Acknowledging that Erin Belken “does not allege a breach of promise claim,” Rivera said:

“[S]he is arguing that she is entitled to damages because husband’s actions in having an affair—and exposing her to explicit videos of the affair—caused her emotional distress. The law does not provide for redress over the circumstances in which wife learned of the affair.”

Rivera observed:

“[T]he courts should not be asked to define a standard of conduct for a married couple regarding the disclosure of sexually explicit or even adulterous pictures or videos from one to the other. Marital relationships, and in particular marital sexual relationships, are intensely private and concern matters we must avoid to prevent ‘unwarranted governmental intrusion.’ ”

The case is Belken v. Belken, A143159.