Richelle L. v. Roman Catholic Archbishop

Opinion

Appellant, Richelle L., is a member of the Church of Our Lady of Mount Carmel in San Francisco. Respondent Reverend Felix Namocatcat is employed by respondent Roman Catholic Archdiocese 1 (Archdiocese) as a priest at that church. This civil action for damages was commenced by appellant to compensate for the injuries she allegedly sustained as a result of a sexual relationship initiated by Reverend Namocatcat, who, she alleges, exploited a position of power and trust.

The trial court sustained respondents’ demurrers without leave to amend. The ruling reflects the trial court’s acceptance of respondents’ contention that subjecting a member of the clergy and his church to tort liability for the manner in which an ecclesiastical officer carries out his pastoral responsibilities would excessively entangle the court in religious beliefs and practices, in violation of the religion clauses set forth in the First Amendment of the United States Constitution and article I, section 4, of the California Constitution. These constitutional provisions guarantee the free exercise of religion and bar laws respecting an establishment of religion.

Appellant timely appeals from the judgment for respondents entered by the court on the basis of its order sustaining the demurrers without leave to amend. We shall conclude that, contrary to the apparent belief of the trial court, there are circumstances in which tort liability for breach of a fiduciary duty may be imposed on a pastor for injuries resulting from the pastor’s sexual misconduct with a parishioner without offense to the religion clauses. We shall also conclude, however, that those circumstances are not present in this case, and for that reason affirm the judgment.

*264 I.

Facts

Because this appeal is from a pretrial ruling sustaining demurrers without leave to amend, our recitation of the facts assumes the truth of all facts properly pleaded by the plaintiff-appellant (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814 [107 Cal.Rptr.2d 369, 23 P.3d 601]; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 579 [94 Cal.Rptr.2d 3, 995 P.2d 139]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58]), and likewise accepts as true all facts that may be implied or inferred from those she expressly alleges. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403 [44 Cal.Rptr.2d 339].)

In September of 1999 Reverend Namocatcat persuaded appellant to have sexual relations with him in the rectory of Our Lady of Mount Carmel Church, at which he was pastor and she was a parishioner. Prior to this relationship, appellant “was chaste and had never been involved in a sexual relationship.” Reverend Namocatcat called appellant once or more each day and often left “romantic and sexual messages” on her answering machine. He also falsely represented to her that he had never had sexual relations with others, that his sexual relationship with her was not improper, and that he intended to retire in the area of the parish in order to remain near her. Prior to his relationship with appellant, Reverend Namocatcat had had a sexual relationship with another female member of the parish, and before that with women in other parishes to which he had previously been assigned. Reverend Namocatcat’s “propensity for breaking his vows of celibacy” was well known and tolerated by other representatives of the Archdiocese.

In the exercise of his skill and knowledge as a priest and pastor, Reverend Namocatcat knew appellant was “deeply religious” and would therefore “be readily subject to manipulation and control by a pastor, and her judgment and ability to resist or reject his advances was substantially compromised by her religious faith and trust.” Respondent Archdiocese and its agents and employees knew of Reverend Namocatcat’s prior sexual misconduct and his sexual misconduct with appellant due, among other things, to the open and notorious nature of his sexual activities and his frequent use of the rectory for sexual encounters with parishioners. 2 The Archdiocese knew a parish priest occupies a superior position of power and influence that can be abused *265 to manipulate parishioners and cause them serious emotional and psychological harm and, because of its knowledge of Reverend Namocatcat’s sexual relationships with numerous parishioners, the Archdiocese knew or should have known that employing Reverend Namocatcat as parish priest created an unreasonable risk of harm to appellant and others.

The complaint alleges that as a result of respondents’ breaches of their duties toward appellant, she has suffered and continues to suffer “irrevocable mental, physical and emotional harm; depression; mental and emotional distress; weight loss; public humiliation; and loss of her religious faith.” Appellant seeks punitive damages against Reverend Namocatcat on the ground that his acts were “willful and malicious.”

II. Proceedings Below

The complaint states seven causes of action. The first and the seventh, which allege breach of fiduciary duty and “general negligence,” are against both Reverend Namocatcat and the Archdiocese. The fourth, fifth and sixth causes of action allege fraud and deceit, intentional infliction of emotional distress and negligent infliction of emotional distress only against Reverend Namocatcat, and the second and third causes of action allege negligent supervision/retention and negligent hiring only against the Archdiocese.

Respondent Archdiocese demurred on the ground that, with respect to the causes of action against it, the complaint failed to state facts sufficient to constitute a cause of action. On February 21, 2001, the Honorable David A. Garcia sustained the demurrer with leave to amend to allege further facts regarding the issue of prior notice to the Archdiocese of Reverend Namocatcat’s alleged sexual propensities and reckless disposition.

The first amended complaint was filed on March 6, 2001. Reverend Namocatcat demurred to that pleading on April 4, 2001, and the Archdiocese separately filed general and special demurrers six days later. The thesis of all the demurrers, which rested on the First Amendment, was that respondents “did not owe a civil duty, fiduciary or otherwise, to [appellant] in these or any other circumstances” and “[t]his lack of duty is fatal to each cause of action.” (Italics added.)

On May 9, 2001, the Honorable William J. Cahill sustained all of respondents’ demurrers without leave to amend, and on that basis entered judgment *266 against appellant on August 10, 2001. Because it leaves no issue for future consideration and terminates the litigation between the parties on the merits of the case, a judgment entered after the sustaining of demurrers without leave to amend is appealable. (Olson v. Cory (1983) 35 Cal.3d 390, 399 [197 Cal.Rptr. 843, 673 P.2d 720].)

III. Standard of Review

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) “[I]n ruling on a demurrer, the trial court is obligated to look past the form of a pleading to its substance. Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief. [Citation.]” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908 [274 Cal.Rptr. 186].) The task of the reviewing court, therefore, “is to determine whether the pleaded facts state a cause of action on any available legal theory.” (Ibid.) Where, as here, a demurrer is sustained without leave to amend, we decide whether there is a reasonable possibility the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.

IV. Discussion

Duty of Reverend Namocatcat

A.

The causes of action against Reverend Namocatcat—breach of fiduciary duty, fraud and deceit, and intentional and negligent infliction of emotional distress 3 —all arise from alleged conduct that can fairly be described as a sexual seduction. The threshold question, therefore, is whether such causes are barred by Civil Code section 43.5 (section 43.5). Subdivision (c) of that statute provides that no cause of action arises for alienation of affection, criminal conversation (i.e., the tort of seducing a wife), breach of promise of marriage, and, pertinent to the case before us, “seduction of a person over the age of legal consent.” Sometimes referred to as the *267 “anti-heart-balm statute,” section 43.5 “was enacted to eliminate a class of lawsuits which were often fruitful sources of fraud and extortion and easy methods ‘to embarrass, harass, and besmirch the reputation of one wholly innocent of wrongdoing.’ (Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789 [218 P.2d 854]; see also Boyd v. Boyd (1964) 228 Cal.App.2d 374, 377 [39 Cal.Rptr. 400].)” (Richard H. v. Larry D. (1988) 198 Cal.App.3d 591, 595 [243 Cal.Rptr. 807].) The statute creates a blanket immunization from liability for the conduct it protects unless such conduct “breaches a duty of care independent of the causes of action barred therein.” (Ibid., italics added; accord, Smith v. Pust (1993) 19 Cal.App.4th 263, 269 [23 Cal.Rptr.2d 364].)

“ ‘Seduction imports the idea of illicit intercourse accomplished by the use of arts, persuasions, or wiles to overcome the resistance of a female who is not disposed of her own volition to step aside from the paths of virtue. [Citation.]’ (Davis v. Stroud (1942) 52 Cal.App.2d 308, 317 [126 P.2d 409]) . ... [¶] The old action of seduction required that the woman was ‘. . . chaste and virtuous at the time of the alleged seduction . . .’ (Davis v. Stroud, supra, 52 Cal.App.2d at p. 316), and it was used primarily to protect young, inexperienced women who had succumbed to the sexual advances of older men. (See Carter v. Murphy (1938) 10 Cal.2d 547 [75 P.2d 1072].)” (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 377 [193 Cal.Rptr. 422].)

Because section 43.5 means it is no longer possible for two consenting adults in the state of California to engage in “illicit intercourse” (ibid.), appellant cannot prevail on her causes of action against Reverend Namocatcat unless she can establish that his alleged conduct breached a duty of care independent of the statutorily barred cause of action for seduction. Abolition of seduction and the other causes of action listed in section 43.5 does not preclude a person from maintaining a recognized tort action merely because the breach arose from the seduction of the plaintiff or one or more of the other forms of sexual conduct enumerated in that statute. All the “anti-heart-balm statute” precludes is the mere recharacterization of the abolished amatory cause of action as a form of negligence or some other acknowledged tort. (See, e.g., Strock v. Pressnell (1988) 38 Ohio St.3d 207, 215 [527 N.E.2d 1235, 1242-1243, 75 A.L.R.4th 729] [abolished torts of alienation of affections and criminal conversation not revived by recognition of the independent tort of intentional infliction of emotional distress].) A plaintiff cannot, in other words, camouflage an abolished action with the catchwords of the common law. The question is whether the essence of the cause of action is something more than mere seduction.

Appellant maintains that Reverend Namocatcat has breached a duty separate and independent of any duty not to seduce because he stood in a *268 special relationship with her comparable to lawyer-client and doctor-patient relationships, and thus owed her the highest duty of care and good faith. She claims he also stood in a “fiduciary relationship” with her and his conduct breached the fiduciary duty arising out of that relationship. Special and fiduciary relationships both impose a special duty of care but, because they are distinguishable in certain important respects, we separately discuss their application to this case.

B.

Appellant’s argument that she stands in a special relationship with Reverend Namocatcat rests on assertedly analogous cases involving physicians and attorneys. Appellant relies most heavily upon Richard H. v. Larry D., supra, 198 Cal.App.3d 591 and McDaniel v. Gile (1991) 230 Cal.App.3d 363 [281 Cal.Rptr. 242], In both cases the bar of section 43.5 was held inapplicable, and liability allowed, because the defendants breached a professional duty of care independent of the cause of action for seduction barred by that statute. Appellant contends that the special relationship rationale of these and similar cases applies with equal force in this case. We cannot agree.

Richard H. v. Larry D., supra, 198 Cal.App.3d 591 was a suit by a patient against a doctor and the hospital employing him for fraud, professional negligence, and negligent infliction of emotional distress based on the surreptitious sexual relations the doctor had with the patient’s wife while the couple were the doctor’s patients for purposes of marital counseling. The Court of Appeal reversed an order sustaining a demurer without leave to amend, holding that the action was not barred by section 43.5 because the doctor’s conduct constituted professional negligence; that is, a “ ‘breach of the duty of care owed to the patient by the physician within the scope of the patient-physician relationship.’ ” (Richard H., at p. 595, quoting Atienza v. Taub (1987) 194 Cal.App.3d 388, 392 [239 Cal.Rptr. 454], italics omitted.)

In McDaniel v. Gile, supra, 230 Cal.App.3d 363, a client filed a cross-complaint against her attorney, who had initiated an action against her for unpaid legal fees, alleging legal malpractice and intentional infliction of emotional distress arising from the attorney’s failure to perform legal services after the client rejected his sexual advances. The trial court granted the attorney summary adjudication on both the claim of intentional infliction of emotional distress and that of malpractice. The Court of Appeal reversed, holding, as material, that a triable issue of fact existed as to the legal malpractice cause of action, since an attorney’s withholding legal services or rendering substandard services after a client’s rejection of his sexual advances necessarily falls below the standard of care and skill of members of the legal profession.

*269 Richard H. v. Larry D., supra, 198 Cal.App.3d 591, McDaniel v. Gile, supra, 230 Cal.App.3d 363 and other California cases involving physicians and attorneys (e.g., Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583 [257 Cal.Rptr. 98, 770 P.2d 278]; McNall v. Summers (1994) 25 Cal.App.4th 1300 [30 Cal.Rptr.2d 914]; Atienza v. Taub, supra, 194 Cal.App.3d 388; Barbara A. v. John G., supra, 145 Cal.App.3d 369) are inapposite, because the malpractice claims that may be made against physicians, psychotherapists, and attorneys cannot be made against members of the clergy. There is no such thing in the law as clerical malpractice.

The reason is set forth in Nally v. Grace Community Church (1988) 47 Cal.3d 278, 298 [253 Cal.Rptr. 97, 763 P.2d 948] (Nally). Our Supreme Court held in that case that the legislative exemption of clergy from licensing requirements applicable to other counselors acknowledges “that access to the clergy for counseling should be free from state imposed counseling standards, and that ‘the secular state is not equipped to ascertain the competence of counseling when performed by those affiliated with religious organizations.’ [Citation.]” (Ibid.) As the Nally court elaborated, “[b]ecause of the differing theological views espoused by the myriad of religions in our state and practiced by church members, it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors. Such a duty would necessarily be intertwined with the religious philosophy of a particular denomination or ecclesiastical teachings of the religious entity.” (Id. at p. 299.)

Nally is widely relied upon for the proposition that there is no independent tort known as “clerical malpractice,” not only by California courts (Jacqueline R. v. Household of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198 [118 Cal.Rptr.2d 264]; Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556 [50 Cal.Rptr.2d 399]), but by those elsewhere (see, e.g., F.G. v. MacDonell (1997) 150 N.J. 550, 562 [696 A.2d 697, 703]; Schieffer v. Catholic Archdiocese of Omaha (1993) 244 Neb. 715, 720 [508 N.W.2d 907, 911]; Strode v. Pressnell, supra, 527 N.E.2d 1235, 1238-1239) and by many commentators (see, e.g., O’Reilly & Strasser, Clergy Sexual Misconduct: Confronting the Difficult Constitutional and Institutional Liability Issues (1994) 7 St. Thomas L.Rev. 31, 56 (hereafter Clergy Sexual Misconduct)-, Note, Intentional Infliction of Emotional Distress by Spiritual Counselors: Can Outrageous Conduct Be ‘Free Exercise”? (1986) 84 Mich. L.Rev 1296, fn. 1; Esbeck, Tort Claims Against Churches and Ecclesiastical Officers: The First Amendment Considerations (1986) 89 W. Va. L.Rev. 1, 78-84). The fact that that no state or federal court in the United States now recognizes a cause of action for clergy malpractice (see Dausch v. Rykse (7th Cir. 1994) 52 F.3d 1425, 1432, fn. 4 (conc. opn. of Coffey, J.) [listing state supreme *270 court cases rejecting a cause of action for clergy malpractice]) reflects widespread judicial acceptance of the Nally view that an action for clergy malpractice cannot be reconciled with the First Amendment because a standard of care and its breach could not be established without judicial determinations as to the training, skill, and standards applicable to members of the clergy in a wide array of religions holding different beliefs and practices. Even if a reasonable standard could be devised, which is questionable, it could not be uniformly applied without restricting the free exercise rights of religious organizations which could not comply without compromising the doctrines of their faith. The application of such a standard would also result in the establishment of judicially acceptable religions, because it would inevitably differentiate ecclesiastical counseling practices that are judicially acceptable from those that are not.

For the foregoing reasons, we conclude that Reverend Namocatcat cannot be liable to appellant for breach of a duty arising out of a special relationship analogous to that between attorneys and their clients and physicians and psychotherapists and their patients. If Reverend Namocatcat can be shown to have caused the injuries appellant alleges, he can be subjected to tort liability only if, as appellant also claims, his alleged conduct breached a fiduciary duty.

C.

Respondents contend that the constitutional considerations preventing the trial court from treating their relationship as a “special relationship” similar to that which certain professionals have with patients or clients also prohibited it from defining the relationship between a pastor and parishioner as a fiduciary relation. In respondents’ view, appellant’s cause of action for breach of a fiduciary duty is merely another way of alleging that respondents’ conduct amounts to professional malpractice.

It is useful at the outset to clear away some terminological confusion. “ ‘[Fiduciary’ and ‘confidential’ have been used synonymously to describe ‘ “. . . any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . .’” (Herbert v. Lankershim (1937) 9 Cal.2d 409, 483 [71 P.2d 220]; Bacon v. Soule (1912) 19 Cal.App. 428, 434 *271 [126 P. 384].) Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client (see Frankel, Fiduciary Law (1983) 71 Cal.L.Rev. 795), whereas a ‘confidential relationship’ may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. (See Stevens v. Marco (1956) 147 Cal.App.2d 357, 374 [305 P.2d 669]; Bolander v. Thompson (1943) 57 Cal.App.2d 444, 447 [134 P.2d 924]; Robbins v. Law (1920) 48 Cal.App. 555, 561 [192 P. 118].) The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.” (Barbara A. v. John G., supra, 145 Cal.App.3d 369, 382.) 4

The statement in some of the cases that fiduciary and confidential relationships are synonymous 5 obscures some significant differences. As our Supreme Court has stated, “ ‘[a] confidential relation may exist although there is no fiduciary relation . . . .’” (Vai v. Bank of America (1961) 56 Cal.2d 329, 337-338 [15 Cal.Rptr. 71, 364 P.2d 247], quoting Rest.2d Trusts, § 2, com. b, p. 6; see also Robins v. Hope, supra, 57 Cal. 493, 497.) Unlike confidential relations, fiduciary relations arise out of certain canonical relationships that are legally defined and regulated. Thus, to take just one of many possible examples, the Legislature has declared that the “relationship of . . . conservator and conservatee is a fiduciary relationship that is *272 governed by the law of trusts . . .” (Prob. Code, § 2101); the law of trusts, a great deal of which is statutory, defines the nature of the fiduciary duties arising out of that particular fiduciary relationship with considerable precision. (See, e.g., Conservatorship of Lefkowitz (1996) 50 Cal.App.4th 1310 [58 Cal.Rptr.2d 299].) Because confidential relations do not fall into well-defined categories of law and depend heavily on the circumstances, they are more difficult to identify than fiduciary relations.

The vagueness of the common law definition of the confidential relation that gives rise to a fiduciary duty, and the range of the relationships that can potentially be characterized as fiduciary, 6 led one court to usefully distill the essential elements as follows: “1) The vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself.” (Langford v. Roman Catholic Diocese of Brooklyn (1998) 177 Misc.2d 897, 900 [677 N.Y.S.2d 436, 438], affd. (2000) 271 A.D.2d 494 [705 N.Y.S.2d 661], citing Scallen, Promises Broken vs. Promises Betrayed: Metaphor, Analogy, and the New Fiduciary Principle (1993) 1993 U. Ill. L.Rev. 897, 922.)

*273 The vulnerability that is the necessary predicate of a confidential relation, and which the law treats as “absolutely essential” (Bogert, Trusts & Trustees (2d ed. 1978) § 482, at pp. 288-289), usually arises from advanced age, youth, lack of education, weakness of mind, grief, sickness, or some other incapacity. For example, in Stenger v. Anderson (1967) 66 Cal.2d 970 [59 Cal.Rptr. 844, 429 P.2d 164], an elderly woman in a weakened mental and physical condition was induced by a friend to make an unfair agreement. The Supreme Court sustained rescission of the agreement, holding that the relationship was “confidential” and the agreement obtained by undue influence. (Id. at p. 979.) Similarly, in O’Neil v. Spillane (1975) 45 Cal.App.3d 147 [119 Cal.Rptr. 245] this court upheld an order directing the reconveyance of real property to the plaintiff, “an aging and lonely woman . . . increasingly dependent upon a few friends,” who had been subjected to undue influence by a friend and his wife. (Id. at p. 151; see also Kent v. First Trust & Savings Bank of Pasadena (1951) 101 Cal.App.2d 361 [225 P.2d 625].)

As noted in the Restatement, one standing in a confidential or fiduciary relation with another “is subject to liability to the other for harm resulting from a breach of duty imposed by the relation.” (Rest.2d Torts, § 874.) Therefore, “[a] fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act. . . . [T]he liability is not dependent solely upon an agreement or contractual relation between the fiduciary and the beneficiary but results from the relation.” (Id., com. b, p. 300.)

Courts in other jurisdictions are divided on whether it is constitutionally permissible to subject a member of the clergy to tort liability for the breach of a fiduciary duty to a parishioner. Some have adopted respondents’ view that the claim a member of the clergy violated a fiduciary duty is simply another way of saying that he or she committed malpractice, and is barred by the First Amendment for the same reasons. (See, e.g., Teadt v. Lutheran Church Missouri Synod (2000) 237 Mich.App. 567 [603 N.W.2d 816, 822-823]; Dausch v. Rykse, supra, 52 F.3d 1425, 1429 [claim for breach of fiduciary duty by pastor and church not recognized by Illinois law]; Schieffer v. Catholic Archdiocese of Omaha, supra, 508 N.W.2d 907, 912; Bladen v. First Presbyterian Church ofSallisaw (1993) 1993 Okla. 105 [857 P.2d 789, 796]; Schmidt v. Bishop (S.D.N.Y. 1991) 779 F.Supp. 321, 326; Strock v. Pressnell, supra, 527 N.E.2d 1235, 1243-1244.) As stated by a Missouri court, “analyzing and defining the scope of fiduciary duty owed persons by their clergy (assuming pastoral relationships were ‘fiduciary’) would require courts to define and express the standard of care followed by reasonable clergy of the particular faith involved, which in turn ‘would *274 require the Court and the jury to consider the fundamental perspective and approach to counseling inherent in the beliefs and practices of that denomination.’” (H.R.B. v. J.L.G. (Mo.Ct.App. 1995) 913 S.W.2d 92