Filed 12/28/15 Belken v. Belken CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


ERIN DAWN BELKEN,
         Plaintiff and Appellant,
                                                                     A143159
v.
CASEY BELKEN,                                                        (Alameda County
                                                                     Super. Ct. No. HG14717123)
         Defendant and Respondent.


         Erin Dawn Belken (wife) appeals from an order sustaining a demurrer to her first
amended complaint and dismissing the action.1 She contends that her first amended
complaint states a viable cause of action for intentional and negligent infliction of
emotional distress. We disagree and affirm.
                                                      I. FACTS
         On March 10, 2014, wife filed a complaint seeking damages from Casey Belken
(husband) for intentional infliction of emotional distress. 2 Wife alleged:
         The parties used husband’s computer to store family photographs and utilized a
photo and video storing program called Picasa. Wife also used husband’s computer
because it had internet access. In June 2012, the parties were having marital troubles and

         1
         We construe wife’s notice of appeal liberally in favor of its sufficiency and
interpret it as being from a judgment of dismissal. (See Bame v. City of Del Mar (2001)
86 Cal.App.4th 1346, 1353, fn. 5.)
         2
       The parties also have a marital dissolution case pending in Alameda County,
Case No. HF12641864.


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were attending marital counseling. At the June 11, 2012 marital counseling session,
husband demanded that wife move out of the marital home. When wife returned home,
she logged onto husband’s computer and opened the Picasa program. She found
photographs and videos of defendant and another woman having unprotected sexual
relations. Wife recognized the woman as someone with whom husband had a business
relationship. Wife became extremely upset and had difficulty breathing upon seeing the
photographs and videos. She called her neighbor, who came over to her house and also
became agitated and emotional upon seeing the videos on the computer.
       About a month later, wife went to her doctor, who prescribed two types of
antibiotics after seeing screen shots of the videos. Wife suffered an adverse reaction to
one of the antibiotics and had to have steroid injections. She suffered constant anxiety
for three to four weeks until she was told she did not have a sexually transmitted disease.
       Husband should have known that wife would see the videos, and that his act of
downloading the videos onto the computer was extreme and outrageous. As a result, she
suffered severe humiliation, mental anguish, and emotional and physical distress. She
also suffered damages in the cost of therapy and medical treatment.
       Husband demurred to the complaint on May 6, 2014 on the ground that the
allegations in the complaint failed to state a cause of action because they did not amount
to extreme, outrageous conduct or exceed all possible bounds of decency.
       On June 9, 2014, wife filed a first amended complaint.3 She repeated the same
allegations as her original complaint but added that husband had threatened that if she did
not move out of their home, he would make her life miserable. Wife felt that she had no
choice but to move out because husband had started to break and hide her belongings and
throw things at her. She further alleged that the videos and photographs that husband
downloaded onto the computer spanned a period of several months. Wife also alleged



       3
        On July 7, 2014, the court dropped the demurrer to the complaint from the
calendar in light of the filing of the first amended complaint.


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that husband had the locks changed on the house they shared, forcing her to stay in a
hotel.
         Wife alleged that in addition to her anxiety over possible exposure to a sexually
transmitted disease, she also feared that she had may have contracted HIV and continued
in emotional distress for a period of six months when her doctor did a follow-up test.
Wife claimed that husband should have known that she would suffer severe humiliation
and emotional distress as a result of seeing the videos on the computer. Husband knew of
her fragile emotional state through their therapy sessions and he breached his fiduciary
duty to her by changing the locks on the house.
         Wife also alleged a cause of action for negligent infliction of emotional distress,
asserting that husband breached a duty to exercise due care towards her and that he
breached that duty by engaging in an intentional and dishonest course of conduct
calculated to cause her extreme mental distress.
         Husband demurred to the first amended complaint, contending that the allegations
failed to state a cause of action.
         Wife opposed the demurrer, arguing that her request for spousal support in the
dissolution proceeding had no affect on the present action and that the allegations of the
first amended complaint were not repetitive of any made in the dissolution action. She
also requested that the court take judicial notice of her request for spousal support and her
declaration that were filed in the dissolution proceeding.
         The trial court sustained the demurrer without leave to amend, finding that it was
improper for wife to raise disputes for damages that were or could be resolved in the
dissolution action. The court reasoned that the courts look with disfavor on civil actions
which are nothing more than a reframing of a family law case.
                                      II. DISCUSSION
         When an appeal arises after the sustaining of a demurrer, we “assume the truth of
the facts alleged in the complaint and the reasonable inferences that may be drawn
therefrom.” (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 789, fn. 3.) “ ‘ “We treat
the demurrer as admitting all material facts properly pleaded, but not contentions,


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deductions or conclusions of fact or law. [Citation.] We also consider matters which
may be judicially noticed.” [Citation.]’ ” (Evans v. City of Berkeley (2006) 38 Cal.4th 1,
6.) When the court has sustained a demurrer without leave to amend, we must decide
whether “there is a reasonable possibility that the defect can be cured by amendment.”
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proof that an amendment
would cure the defect is on the appellant. (Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074, 1081.) We may affirm on any basis stated in the demurrer, regardless of
the ground on which the trial court based its ruling. (Carman v. Alvord (1982) 31 Cal.3d
318, 324.)
       Relying on Nagy v. Nagy (1989) 210 Cal.App.3d 1262 (Nagy), wife argues that
she can use the civil courts to assert her claim of emotional distress against husband. Her
reliance on Nagy is misplaced. In Nagy, the appellate court upheld the trial court’s order
dismissing a complaint for intentional infliction of emotional distress and fraud which
was based on the allegation that the wife misrepresented the parentage of her son to the
husband leading him to believe he was the father. (Id. at pp. 1265–1267.) While the
court recognized that under California law, one can sue a spouse for an intentional tort
(Self v. Self (1962) 58 Cal.2d 683, 691), the court held that the husband could not sue his
wife for fraud because there was no law permitting a person to recover damages for
developing a relationship with a child and performing the acts of a parent. (Nagy, supra,
at pp. 1268–1269.) The court recognized that there are many wrongs for which the law
does not provide a remedy: “ ‘It does not lie within the power of any judicial system . . .
to remedy all human wrongs. There are many wrongs which in themselves are flagrant.
For instance, such wrongs as betrayal, brutal words, and heartless disregard of the
feelings of others are beyond any effective legal remedy and any practical administration
of law. [Citation.]’ ” (Id. at p. 1269, quoting Stephen K. v. Roni L. (1980) 105
Cal.App.3d 640, 642–643 (Stephen K.).)
       As the Nagy court recognized, allegations 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. (Nagy, supra, 210 Cal.3d at p. 1269.) “The California anti-


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heart-balm statues which long ago did away with breach of promise actions establish a
public policy against litigation of the affairs of the heart.” (Askew v. Askew (1994)
22 Cal.App.4th 942, 947 (Askew); Civ. Code, § 43.5, subd. (a) [no cause of action lies for
alienation of affection].) Although wife does not allege a breach of promise claim, she 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.
(Ibid.; see Perry v. Atkinson (1987) 195 Cal.App.3d 14, 19 [in enacting Civil Code
section 43.5, the Legislature recognized that “certain sexual conduct and interpersonal
decisions are, on public policy grounds, outside the realm of tort liability”].)
       In Stephen K., Roni and her child brought a paternity suit against Stephen. After
admitting paternity, Stephen cross-complained for fraud and negligence. He alleged that
Roni falsely represented she was taking birth control pills and, in reliance on that
representation, Stephen had sexual intercourse with Roni, resulting in her becoming
pregnant and having Stephen’s child. (Stephen K., supra, 105 Cal.App.3d at pp. 641–
642.) Stephen also alleged that due to Roni’s misrepresentation, he had become
obligated to support a child he did not want, and had suffered “ ‘mental agony and
distress.’ ” (Id. at p. 642.) The court concluded that the facts alleged were not
actionable. “Claims such as those presented by plaintiff Stephen in this case arise from
conduct so intensely private that the courts should not be asked to nor attempt to resolve
such claims. . . . [A]lthough Roni may have lied and betrayed the personal confidence
reposed in her by Stephen, the circumstances and the highly intimate nature of the
relationship wherein the false representations may have occurred, are such that a court
should not define any standard of conduct therefor.” (Id. at p. 643.)
       In support of its reasoning the court pointed to Stanley v. Georgia (1960) 394 U.S.
557, 564, a case in which the Supreme Court held the state could not criminalize mere
possession of pornography in one’s own home. “In Stanley v. Georgia [], the high court
recognized the right to privacy as the most comprehensive of rights and the right most
valued in our civilization. Courts have long recognized a right of privacy in matters


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relating to marriage, family and sex. [Citations.]” (Stephen K., supra, 105 Cal.App.3d at
p. 645.) The court concluded that Stephen could not sue in tort for Roni’s
misrepresentation because “it is nothing more than asking the court to supervise the
promises made between two consenting adults as to the circumstances of their private
sexual conduct. To do so would encourage unwarranted governmental intrusion into
matters affecting the individual’s right to privacy.” (Id. at pp. 644–645.)
       Similarly, in this case, the 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.” (Stephen K., supra,
105 Cal.App.3d at p. 645.)
       Wife further argues, citing Boblitt v. Boblitt (2010) 190 Cal.App.4th 603 (Boblitt),
that the trial court erred in finding that the issues she raised could be considered in the
pending dissolution proceeding. Here, the court correctly ruled that it was improper for
wife to raise claims seeking damages for medical and living expenses, and loss of access
to the marital home as these issues could be resolved in the dissolution action.
       The Boblitt court held that a party was not precluded from seeking damages for the
tort of domestic violence (see Civ. Code, § 1708.6) in a civil action while also asking a
family law court to consider the facts of domestic violence in awarding spousal support.
(Id. at pp. 606, 613.) The tort of domestic violence, however, is a creature of statute, and
the law specifically prescribes that the “rights and remedies provided in this section [to
recover damages in tort] are in addition to any other rights and remedies provided by
law.” (Civ. Code, § 1708.6, subd. (d).) Moreover, domestic violence is not an intensely
private matter; it is a matter of public safety for which the courts can and should define
standards of conduct. Boblitt is therefore inapposite.
       Wife also cites the declaration she submitted in support of her request for spousal
support in the dissolution action as evidence in this action. The court denied her motion
for judicial notice of the declaration. “For a court to take judicial notice of the meaning


                                              6
of a document submitted by a demurring party based on the document alone, without
allowing the parties an opportunity to present extrinsic evidence of the meaning of the
document, would be improper. A court ruling on a demurrer therefore cannot take
judicial notice of the proper interpretation of a document submitted in support of the
demurrer. [Citations.] In short, a court cannot by means of judicial notice convert a
demurrer into an incomplete evidentiary hearing in which the demurring party can
present documentary evidence and the opposing party is bound by what that evidence
appears to show.” (Fremont Indemnity Co. v. Fremont General Corp. (2007)
148 Cal.App.4th 97, 114–115.) Hence, it would have been improper for the court to take
judicial notice of matters averred in wife’s declaration pertaining to her work schedule,
mental distress, medical appointments, and personal possessions left in the marital home,
which were all subjects in dispute in the dissolution proceeding. (Id. at pp. 113–114.)
“ ‘ “A demurrer is simply not the appropriate procedure for determining the truth of
disputed facts.” ’ ” (Id. at pp. 113–114, quoting Ramsden v. Western Union (1977)
71 Cal.App.3d 873, 879.)
       Finally, wife’s argument that the court had the authority to consolidate this action
with the dissolution proceeding is without merit. As we have explained, wife has no
basis for pursuing the tort action as she has no redress for husband’s intentional or
negligent posting of photographs and videos of his extramarital affair on their shared
computer. (See Askew, supra, 22 Cal.App.4th at pp. 947, 954.)
                                   III. DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Streeter, J.




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