Tuesday, April 7, 2020
Court of Appeal Says No Matter How a Cause of Action Is Characterized, There’s No Recovery Based On Plaintiff Being Ostracized by Mother Stemming From Bad-Mouthing of Her by Relatives
By a MetNews Staff Writer
Alienation of affection, no matter how the cause of action is phrased, has not been a cognizable wrong under California law since the 1939 repeal of “heart balm” statutes, the Court of Appeal for this district has declared, rejecting the contention that a 1963 decision authorizes the action by a woman based on her mother’s mind being poisoned against her by relatives.
Justice Helen Bendix of Div. One wrote the opinion, filed Friday. It affirms judgments on the pleadings by Los Angeles Superior Court Judge Elizabeth Allen White in favor of defendants Rochelle Lind, niece of plaintiff Dolores Tarin, and Jesse Tarin, the plaintiff’s brother.
The plaintiff accused niece and brother of lying about her to her mother, Lucy Torres, now deceased, causing the mother to shun her.
“Over 80 years ago, the Legislature amended the Civil Code to omit a cause of action for parental abduction, including by persuasion or enticement, and to bar claims for alienation of affection. We conclude, in line with case precedent, that the Legislature thereby removed from California law the right of action asserted by Dolores here. It is immaterial that Dolores asserted her claims under multiple theories, including intentional infliction of emotional distress, loss of parental consortium, elder abuse of Dolores (who is older than 65 years), and false light invasion of privacy, because all were based on allegations that defendants turned Lucy against Dolores, and all harms flowed from Lucy’s severing ties with Dolores.”
Prior to the 1939 legislation, Civil Code §49 provided that “[t]he rights of personal relation forbid…the abduction…a parent from his child,” with “abduction” employed in a broader sense than under the criminal kidnapping statute. That and other language was eliminated from the statute.
Bendix noted that the California Supreme Court, in the 1948 case of Rudley v. Tobias, held that in light of the legislation, the complaint of a nine-month-old boy against the woman who persuaded his father to abandon him “for the purpose of depriving the plaintiff of the presence, comfort, society, guidance, affection and paternal care of...the plaintiff ’s father” failed to state a cause of action.
Dolores Tarin relied, however, on the 1963 Court of Appeal decision in Rosefield v. Rosefield. There, it was recognized that a child, age two-and-a-half, had a cause of action against her grandfather for taking her off, thus denying her the society of her mother.
The Court of Appeal, differentiating the case at bar from the fact situation in Rudley, said:
“The case before us is not one of abduction of a parent, but abduction of the child, brought against an alleged participant in the abduction. In the case of the parent’s ‘abduction,’ an element of consent of a responsible person, the parent, is present; in the case of the child’s, particularly one of the age of two and one-half, there is no such consent. Respondent here has not, as did defendant in the Rudley case, taken the affections of the parent from the child; indeed, appellant’s complaint alleges that she has gone to much expense in trying to regain her daughter.”
Supreme Court’s Acceptance
Rudley was subsequently embraced by the California Supreme Court, in a footnote, in the May 6, 1977 case of Borer v. American Airlines, Inc. In that 6-1 decision, the majority said “we should not recognize a nonstatutory cause of action for the loss of parental consortium,” but specified:
“The considerations which lead us to reject a cause of action for negligent injury to consortium in a parent-child context do not bar an action for intentional interference with parental consortium. An action for intentional interference with consortium, recognized by precedent in California (see Rosefield v. Rosefield…) is a relatively unusual tort that presents no danger of multiplication of claims or damages. The ruling, moreover, may serve to deter child stealing and similar antisocial conduct.”
(That view was also expressed in a footnote in a companion opinion issued the same day.)
Bendix wrote that applying Rudley, Dolores Tarin’s “claim runs afoul of the 1939 changes to the Civil Code eliminating the cause of action for parental abduction and barring claims for alienation of affection.” She continued:
“Rosefield did not disagree with Rudley, but distinguished it on the basis that Rosefield involved the abduction of the child, not the parent, and thus the abduction in Rosefield lacked ‘an element of consent of a responsible person’ present in Rudley.”
Bendix pointed out:
“Unlike the child in Rosefield, Lucy was an adult and ‘responsible person’ capable of consenting to her ‘abduction’…, in this case accomplished through persuasion rather than force.”
The case is Tarin v. Lind, 2020 S.O.S. 1609.
Counsel on appeal were Raimund Freihube of Clark & Trevithick for Dolores Tarin and Mark D. Licker for her brother and niece.
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