Metropolitan News-Enterprise


Wednesday, August 14, 2019


Page 3


Court of Appeal:

No Liability for ‘Wrongful Sex’ With Husband Of Plaintiff by Health Care Employee

Opinion Says Action Is Based on Heart Balm Torts Long Ago Abolished


By a MetNews Staff Writer


The First District Court of Appeal has affirmed a judgment of dismissal following the sustaining of a demurrer without leave to amend in an action by a woman whose husband went to a mental health facility for counseling and received treatment by an employee in the form of sexual relations.

The plaintiff, Tamuri Richardson, sued Bay Area Community Services and two of its directors, along with its employee—now former employee—Acintia Wright, alleging negligence and negligent infliction of emotional distress. She sued Wright for intentional infliction of emotional distress.

Justice Henry E. Needham Jr. of Div. Five wrote the unpublished opinion, filed Monday. While the husband might have a cause of action against Wright based on breaching her professional duties, Needham said, “she did not owe an independent duty of care” to the wife.

The jurist distanced himself from a 1989 opinion rendered by the division in which he now sits and embraced a 1993 decision of the Fourth District’s Div. Three.

1989 Decision

The 1989 ruling came in Richard H. v. Larry D. There, it was alleged that the plaintiff and his wife came to a psychiatrist for counseling; the doctor engaged in a sexual relationship with the wife; the husband sued the doctor and the facility for which he worked.

Justice  Zerne P. Haning III, now a mediator and arbitrator, wrote the opinion which reversed a judgment of dismissal. He declared that the action was not barred by Civil Code §43.5, enacted in 1939.

It provides, in part: “No cause of action arises for: [¶] (a) Alienation of affection. [¶] (b) Criminal conversation. [¶] (c) Seduction of a person over the age of legal consent.”

(It also bars a cause of action for “Breach of promise of marriage.”)

Purpose of Statute

Haning wrote:

“In recognition of changing social mores and standards of sexual morality, the Legislature enacted section 43.5 to shield innocent persons from the burden of defending fraudulent or meritless litigation. We do not think the statute was intended to lower the standard of care which psychiatrists owe their patients, nor to permit them to avoid liability for breach of their professional and fiduciary responsibilities, or commit fraud.”

The opinion reinstated a cause of action against the health care facility, as well as the doctor, based on an “agency relationship” between the two defendants.

1993 Opinion

In his 1993 opinion in Smith v. Pust, Presiding Justice David Sills (now deceased) said:

“California abolished the torts of alienation of affection and criminal conversation (a euphemism for a third party’s sexual intercourse with an adulterous spouse) more than 50 years ago, so the complaint was framed as a medical malpractice action….

“The substance of the lawsuit is one for criminal conversation and alienation of affection, and the facts of this case cannot be shoehorned into causes of action for medical malpractice, negligence or intentional infliction of emotional distress.”

Needham’s Opinion

Needham said in Monday’s opinion:

“As in Smith, appellant’s causes of action, regardless of how they are framed, are for the now-defunct theories of alienation of affection and criminal conversation.”

Turning to Richard H. v. Larry D., he said it was “disapproved of” in John R. v. Oakland Unified School District, a 1989 California Supreme Court decision. In that case, the high court said that while a school district might be liable for its own negligence in connection with the sexual molestation of a junior high school student by his teacher, liability could not be based on respondeat superior.

Needham continued:

“To the extent the case remains good law, it is distinguishable from the one before us because appellant was not herself a patient of Community Services or [Wright], and the mental health issues for which [her husband] sought counseling had nothing to do with his marriage to appellant per se.”

The case is T.R. v. Bay Area Community Services, A153626.


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