Raymond DUNKIN, Plaintiff and Appellant,
v.
Lisa BOSKEY, Defendant and Respondent.
Court of Appeal, First District, Division One.
*47 Furtado, Jaspovice & Simons, Richard J. Simons, Esq., Hayward, for Plaintiff and Appellant.
The Castleman Law Firm, Jacqueline C. Hamilton, Esq., San Francisco, Terrence P. Murphey, Esq., for Defendant and Respondent.
SWAGER, J.
Appellant Raymond Dunkin's action against respondent Lisa Boskey for breach of contract was dismissed after the trial court sustained a demurrer without leave to amend. We conclude that an agreement between the parties to grant appellant paternity rights to a child conceived *48 by artificial insemination is binding, and may be enforced to the extent of an action for unjust enrichment. We therefore reverse the judgment in part and remand the case to the trial court.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Following dismissal of his action for declaratory relief to establish his paternity and custody rights to a daughter born to respondent, appellant filed causes of action for breach of contract against respondent and professional negligence against defendant Pacific Fertility Medical Center (hereafter Pacific Fertility) in the present case. Appellаnt's first amended complaint alleged that he and respondent "cohabitated" between 1993 and 1998, but "were never married." Appellant had suffered from testicular cancer which had left him sterile. In 1995 he and respondent consulted with Pacific Fertility for the purpose of conceiving a child by artificial insemination.
On July 15, 1995, appellant and respondent entered into a written contract, drafted by Pacific Fertility and entitled "Consent for Artificial Insemination" (hereafter the agreement), to "create a child by the use of artificial insemination ... through the ... use of the sperm of an anonymous donor." Pursuant to the agreement, which specifies that it is "governed by the Laws of the State of California," appellant and respondent as "male partner and female partner" respectively, acknowledged "our obligation to care for and support and educate and otherwise treat and consider any child born as the result of such artificial insemination in all respects as though it were our natural child." They further promised to "nеver allege in any proceeding that the child or children, is other than legitimate, and the male partner and the female partner acknowledge that the child shall be the lawful child of both the mother and the male partner, and that neither of them shall assert a contrary position in any subsequent proceeding." According to the first amended complaint, Pacific Fertility advised appellant that "he would be treated by the law as the acknowledged and legal parent of the child to be born through the artificial insemination procedure, and that he need take no further action to have full rights of visitation, custody and other parental rights as to the child."
On April 22, 1996, respondent gave birth to a daughter. Appellant was named as the "Father of Child" on the birth certificate.[1] After the birth, appellant cared for her on a daily basis and "held out the child as his natural child," but he and respondent never married, and appellant did not adopt the child. In March of 1998, respondent "terminated her cohabitation and relationship" with appellant, and moved with the child from California to Wisconsin. Respondent thereafter denied appellant any custody or visitation with the child.
In April of 1998, respondent commenced a declaratory relief action in Wisconsin to terminate any rights of appellant to paternity, custody or visitation. Appellant subsequently filed a complaint in California to establish his paternity and custody rights to the child. The trial court dismissed appellant's action in California,[2] based upon a finding that he lacked standing to "sue for custody and visitation." After the instant breach of contract action against respondent by appellant was also dismissed, this appeal ensued.
DISCUSSION
Appellant argues that the trial court erred by finding that he has no right to enforce the agreement. He claims that the agreement "with his domestic partner" to "together raise" a child is not illegal or *49 otherwise unenforceable. He also maintains that he "should have been permitted to amend his complaint" to allege causes of action for intentional infliсtion of emotional distress and unjust enrichment. Respondent contends that appellant's action is barred by the res judicata effect of the prior judgment, and the agreement is unenforceable for public policy reasons.
Our review is governed by wellsettled principles. "When reviewing an order sustaining a demurrer without leave to amend, this court must treat the demurrer as admitting all properly pleaded facts, but not contentions, deductions or conclusions of fact or law. We must read the complaint as a whole and give it a reasonable interpretation." (Koch v. Rodlin Enterprises (1990)
I. The Res Judicata Effect of the Judgment in the Declaratory Relief Action.
Respondent insists that dismissal of appellant's prior complaint to establish parental relationship precludes the present action under principles of res judicata. Appellant's prior action was brought in the family court under the Uniform Parentage Act (UPA) (Fam.Code, § 7600 et seq.), to determine whether a parent and child relationship exists.[3] Appellant claimed he was the child's parent, and requested custody and visitation rights. Following a hearing, the trial court found that it lacked "subject matter jurisdiction over child custody and visitation with respect to [the child]," and appellant "lacks standing to sue for custody and visitation of the child who was conceived of artificial insemination ... with another man's sperm." No appeal was taken from the prior judgment, and it became final.[4]
Under the doctrine of res judicata, "parties to a prior рroceeding are precluded from relitigating issues determined in the prior proceeding. (See 7 Witkin, Cal. Procedure [(3d ed. 1985)] Judgment, §§ 253-254.)" (Bob Baker Enterprises, Inc. v. Chrysler Corp. (1994)
"`A prior determination by a tribunal will be given collateral estoppel effect when (1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action or one who wаs in privity with such a party; and (5) the former decision is final and was made on the merits.' [Citation.]" (McCutchen v. City of Montclair (1999)
Having before us a prior final judgment on the merits in an action between the same parties, we focus on the identity-of-issues requirement to resolve respondent's claim of res judicata. Unless the issue or cause of action in the two actions is identical, the first judgment does not stand as a bar to the second suit. (Agarwal v. Johnson (1979)
To define a cause of action, California follows the primary right theory, which conceives of a cause of action as "`... 1) a primary right possessed by the plaintiff, 2) a corresponding primary duty devolving upon the defendant, and 3) a delict or wrong done by the defendant which consists in a breach of such primary right and duty. [Citation.] Thus, two actions constitute a single cause of action if they both affect the same primary right.... [Citation.]' [Citation.]" (Acuna v. Regents of University of California (1997)
The present action for breach of written contract does not assert the same primary right as appellant's prior action in *51 family law court to establish paternity. Appellant previously sought to establish that he was the legal father of the child, with the attendant rights of custody and visitation. The trial court found that he lacked standing to bring the paternity action. Resolution of the enforceability of the contract was unnecessary to the court's judgment in the family law dispute. (In re Marriage of Rabkin (1986)
II. The Validity of the Agreement.
Proceeding to the merits of the appeal, we must first assess the validity and enforceability of the agreement. Appellant maintains that contracts between domestic partners for custody and support of children are binding between the parties, at least to the extent of an action for damages. Respondent argues that agreements between a parent and a "non-parent" such as appellant are "illegal and unenforceable because they are in an area entirely preempted by statutory mechanisms for creating or establishing parenthood."
Generally courts will not assist in enforcing an agreement when the object of the agreement is either illegal or against public policy. (Birbrower, Montalbano, Condon & Frank v. Superior Court (1998)
"`A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms'" (Bovard v. American Horse Enterprises, Inc. (1988)
"The question whether a contract violates public policy necessarily involves a degree of subjectivity. Therefore, `... courts have been cautious in blithely applying public policy reasons *52 to nullify otherwise enforceable contracts. This concern has been graphically articulated by the California Supreme Court as follows: "It has been well said that public policy is an unruly horse, astride of which you are carried into unknown and uncertain paths, ... While contracts opposed to morality or law should not be allowed to show themselves in courts of justice, yet public policy requires and encourages the making of contracts by competent parties upon all valid and lawful considerations, and courts so recognizing have allowed parties the widest latitude in this regard; and, unless it is entirely plain that a contract is violative of sound public policy, a court will never so declare. `The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt.' [Citation.] ... `No court ought to refuse its aid to enforce a contract on doubtful and uncertain grounds. The burden is on the defendant to show that its enforcement would be in violation of the settled public policy of this state, or injurious to the morals of its people.' [Citation.]"` [Citations.]" (Bovard v. American Horse Enterprises, Inc., supra, 201 Cal.App.3d at pp. 838-839,
Thus, despite the res judicata effect of the prior judgment, we cannot turn a blind eye to appellant's status and rights with regard to the child to properly assess the public policy considerations surrounding his agreement with respondent. We cоmmence our inquiry with recognition that appellant does not qualify as either a "presumed" or "natural" father of the child under the UPA, which governs California law. (Nancy S. v. Michele G. (1991)
"In essence, therefore, our statutory scheme creates three classes of parents: mothers, fathers who are presumed fathers, and fathers who are not presumed fathers." (Adoption of Michael H., supra,
The law thus "permits the adoption of illegitimate children by single persons...." (Lavell v. Adoption Institute (1960)
While appellant has alleged in his complaint the elements of reception of the child into his home and open acknowledgement of her as his daughter, he nevertheless cannot become a "presumed father" under section 7611, subdivision (d), absent any "biological link" to her. (In re Baby Girl M. (1984)
Where, as in the case before us, the child has been conceived through "hetеrologous artificial insemination,"[7] and the donor is anonymous, indeed the child "does not have a `natural father,' as that term is commonly used." (People v. Sorensen, supra *54
Thus, in People v. Sorensen, supra,
"The Sorensen definition of `father' in a criminal proceeding is supported by a multitude of civil cases. In Louis v. Louis,
Section 7613 provides specific statutory support for the proposition that a husband may be deemed a father under the UPA in the case of artificial insemination of his wife. (In re Marriage of Buzzanca, supra,
Appellant, however, was not respondent's husband, and so does not fall precisely within the scope and protections of section 7613. (See Jhordan C. v. Mary K, supra,
We are also cognizant of the principle that "Parents have a right to contract with each other as to the custody and control of their offspring, and to stipulate away their respective parental rights. Such contracts are binding upon them." (Stewart v. Stewart (1955)
We discern nothing in the agreement between apрellant and respondent that so offends public policy as to require us to find it illegal or invalid. To the contrary, recognizing the validity of appellant's contractual promise to "care for and support and educate" the child as though it was his "natural child" serves rather than contravenes the compelling public policies of family law to legitimate children, provide for their support, foster the best interests of the child, and promote familial responsibility. (In re Marriage of Buzzanca, supra,
Thus, while the agreement at issue here cannot grant parental rights to appellant that the law otherwise expressly denies to him, infringe upon the authority of the court to provide for the appropriate custody and support of the child, or abridge the rights of the child, as between appellant and respondent it is binding. (In re Ruby T. (1986)
Finally, we consider the nature and effect of respondent's conduct, in assessing the validity of the agreement. In addition to her express promise to honor appellant's parental rights and to assert no "contrary position" in any legal proceeding, respondent had the benefit of appellant's contractual obligation to care for and support the child. Under principles of equitable estoppel, we cannot now countenance her repudiation of appellant's rights under the agreement. (In re Marriage of Buzzanca, supra,
Respondent seeks to deny enforcement of the agreement by reliance on cases that have denied custody or visitation rights to a "lesbian partner who is not a biological or adoptive parent" of a child conceived by artificial insemination. (See Guardianship of Z.C.W. (1999)
III. The Remedies Available to Appellant.
We next focus upon the remedies available to appellant. Respondent maintains that appellant's allegations of intrusion upon his right to develop "an intimate relationship with a child" have been "disallowed on public policy grounds" in California. Appellant insists that he is entitled to compensation under the contract for deprivation of the "companionship" of the child, or at least must be permitted to amend the complaint to allege causes of action for intentional infliction of emotional distress and unjust enrichment. We define the issue as whether, even if the contract is not illegal or invalid, appellant is entitled to the damages he seeks for the loss of his relationship with the child.
Appellant's claim in his breach of contract action of "enduring mental and emotional suffering and distress from the loss of the relationship, custody, visitation, and parental rights as to the minor child" immediately runs afoul of the rule that *59 "damages for mental suffering and emotional distress are generally not compensable in contract actions." (Applied Equipment Corp. v. Litton Saudi Arabia. Ltd. (1994)
In any event, we conclude that recovery of damages by appellant in tort for emotional distress based upon the loss of his relationship with the child is not permitted. "[I]n some instances the courts have concluded that allowing a remedy in tort would be contrary to public policy." (Dale v. Dale (1998)
Similarly, in Richard P. v. Superior Court (1988)
Here, appellant has alleged breach of a promise to recognize his paternity of the child. "Losses of parental or filial consortium are not actionable. `[T]he inadequacy of monetary damages to make whole the loss suffered, considered in light of the social cost of paying such awards, сonstitutes a strong reason for refusing to recognize the asserted claim.' [Citations.]" (Foy v. Greenblott (1983)
We nevertheless conclude that appellant is not left entirely without a remedy. The preclusion of his claim for general damages for emotional harm on public policy grounds does not operate to deny him recovery of special damages for readily ascertainable economic loss under an unjust enrichment theory. (See Turpin v. Sortini (1982)
We find no great public policy impediment to appellant's recovery of his economic loss under an unjust enrichment theory. A contract unenforceable in its entirety for public policy reasons may still be enforced in part under compelling circumstances where the lawful and unlawful portions of the agreement may be separated. (Birbrower, Montalbano, Condon & Frank v. Superior Court, supra,
While the courts generally will not enforce an illegal contract or one against public policy, "`the rule is not an inflexible one to be applied in its fullest rigor under any and all circumstances,'" and "`[a] wide range of exceptions has been recognized'" to enforce contracts "to `avoid unjust enrichment to a defendant and a disproportionately harsh penalty upon the plaintiff.'" (Asdourian v. Araj, supra, 38 Cal.3d at pp. 291-292,
In the present case, it is part of the remedyspecific performance of the contract or damages for emotional harm rather than the object or consideration of the agreement that is unenforceable on public policy grounds. An award of compensation to appellant for his economic loss does not contravene those public policy considerations. The public cannot be protected by refusing limited enforcement of the agreement to the extent of unjust enrichment. Appellant will neither obtain custody of the child in contravention of the law, nor be improperly compensated for the loss of his relationship with her. (Cf., Nagy v. Nagy, supra, 210 Cal.App.3d at pp. 1269-1270,
Although requiring respondent to disgorge any mоnetary benefit she received at appellant's expense under the agreement may indirectly compromise the funds presently available to her for support, we think the equities of the case and public policy considerations still fall in appellant's favor. According to the complaint, it is respondent who entered into a contract which obligated appellant to support and care for the child and then, in breach of her promise, denied his rights under the contract when it suited her to do so. Respondent will be unjustly enriched at appellant's expense if a remedy is entirely denied to him. In contrast, at least according to the complaint, appellant relied on the agreement and representations by Pacific Fertility that his legal rights were protected. He then performed his obligations pursuant to the agreement until prevented from doing so by respondent. We therefore conclude that the trial court erred in sustaining the demurrer since the complaint states facts disclosing some right to relief. (Longshore v. County of Ventura (1979)
We add that the measure of damages to which appellant is entitled for unjust enrichment "is synonymous with restitution." *63 (Dinosaur Development, Inc. v. White, supra,
Accordingly, the judgment is reversed and the case is remanded to the trial court for proceedings consistent with the views expressed herein. Costs on appeal are awarded to appellant.
STRANKMAN, P.J., and STEIN, J., concur.
NOTES
Notes
[1] The birth certificate was not part of the record on appeal, but was attached to the complaint as an exhibit, and we have augmented the record with it. (Cal. Rules of Court, rule 12(a).)
[2] Appellant's declaratory relief action was resolved first.
[3] All further statutory references are to the Family Code unless otherwise indicated.
[4] In reviewing the order sustaining the demurrer, we consider the prior complaint and judgment, which wаs judicially noticed in the trial court and is part of the record on appeal. To determine whether to sustain a demurrer on res judicata grounds, judicial notice may be taken of a prior judgment and other court records. (Kirkpatrick v. City of Oceanside (1991)
[5] We are also persuaded that the important public policy considerations implicated by appellant's present suit militate in favor of resolving the issues presented.
[6] Subdivision (d) of section 7611, reads: "A man is presumed to be the natural father of a child if ... [¶] (d) He receives the child into his home and openly holds out the child as his natural child." "In defining the rights of unmarried fathers, the Act distinguishes between a presumed father, as determined by the statutory presumptions, and one who is merely a biological father. [Citations.] The unmarried father is treated differently under the Act in custody, support and adoption proceedings depending on his defined status. [Citations.] The presumed father, one who has entered into some familiаl relationship with the mother and child, is accorded more rights and privileges than the purely biological father." (People v. Vega (1995)
[7] Artificial insemination is classed as one of two types, with or without using the husband's semen, known respectively as homologous artificial insemination and heterologous artificial insemination. (See People v. Sorensen (1968)
[8] Also, "Sorensen expresses a rule universally in tune with other jurisdictions. `Almost exclusively, courts which have addressed this issue have assigned parental responsibility to the husband based on conduct evidencing his consent to the artificial insemination.' (In re Baby Doe (1987)
[9] "Thus, the California Legislature had afforded unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear that the donor may claim paternity...." (Jhordan C. v. Mary K. (1986)
[10] In Johnson v. Calvert, supra,
In considering the competing claims оf Crispina and Anna to be the natural mother pursuant to Civil Code former section 7003, subdivision (1) (now Fam.Code § 7610, subd. (a)), the court found that California law recognizes only one natural mother. (Johnson v. Calvert, supra,
[11] In Karin T. v. Michael T., supra, p. 781, the respondent was a female who was "unhappy with her feminine identity and attempted to change that identity and to live like a man." Respondent participated in a marriage сeremony with the petitioner Karin T. that was subsequently the subject of an action to declare it "null and void" and they "lived together in the same household and both contributed to the support of the family and to the children" (id. at p. 782) born to Karin T. "by means of artificial insemination." (at p. 781.) Respondent and petitioner signed an agreement whereby respondent indicated "she was the husband" and declared the children "his own legitimate child or children." (Id., at p. 782.) After the birth of the children, the parties separated and respondent sought to disclaim her parental obligations. The court concluded that "certainly the document which was signed by the respondent and by which these children were brought into the world gives rise to a situation which must provide these two children with remedies. To hold otherwise would allow this respondent to completely abrogate her responsibilities for the support of the children involved and would allow her to benefit from her own fraudulent acts which induced their birth no more so than if she were indeed the natural father of these children. Of course, the respondent was free to engage and live in any lifestyle which she felt appropriate. However, by her course of conduct in this case which brought into the world two innocent children she should not be allowed to benefit from those acts to the detriment of these children and of the public generally." (Id., at p. 784.)
[12] As we have observed, the prior judgment is res judicata on those matters.
[13] For instance, in West v. Superior Court, supra,
[14] The court further observed: "Our conclusion is supported by analogy by several other decisions. (See, e.g., Stephen K. v. Roni L. [(1980)]
[15] We note that appellant need not amend the pleading to seek compensation under an unjust enrichment theory, as those damages are recoverable in his breach of contract action. (See Al-Husry v. Nilsen Farms Mini-Market, Inc. (1994)