Date: 04-04-2020

Case Style:

Case Number: B295708

Judge: Bendix, J.

Court: California Court of Appeals Second Appellate District, Division One on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Raimund Freihube

Defendant's Attorney: Mark D. Licker

Description: Plaintiff and appellant Dolores Tarin (Dolores) appeals
from the judgment after the trial court granted three judgments
on the pleadings in favor of defendants and respondents Rochelle
Lind (Rochelle) and Jesse Tarin (Jesse)1 (collectively,
defendants), and Dolores dismissed her remaining claims.
Dolores alleged that defendants interfered in Dolores’s
relationship with her mother, Lucy Torres (Lucy), “by . . . unduly
influencing [Lucy] and distorting her understanding and
perception” of Dolores “such that [Lucy] would fully reject and
exclude” Dolores “from her life.” Dolores alleged that she suffered
emotional harm from the deprivation of “the society, care and
affection” of her mother.
We agree with the trial court that Dolores’s allegations
failed to state a cause of action. 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.

1 Because Dolores and Jesse share a last name, we refer to
them by their first names, and do the same with the other
involved individuals for consistency’s sake. We intend no
disrespect.
3
Although our Supreme Court has recognized the tort of
intentional interference with parental consortium, the case the
high court cited in support of such a cause of action involved the
physical kidnapping of a two-year-old child from her mother, and
is readily distinguishable from the instant case.
We further conclude that the trial court did not abuse its
discretion in denying Dolores’s request for a five-day continuance
after granting the third judgment on the pleadings. Accordingly,
we affirm.
BACKGROUND
A. The First Amended Complaint
1. Structure of the pleadings
As an initial matter, the structure of the pleadings in this
case requires some explanation. The original complaint listed
two plaintiffs, Dolores and Erik Encinas (Erik), who is not a
party to this appeal. The first amended complaint (FAC), the
operative pleading for purposes of this appeal, while ostensibly
listing Erik as a plaintiff as well, includes only causes of action
brought by Dolores alone, and only Dolores is named in the
prayer. The FAC omits the sixth and seventh causes of action
from the original complaint, which were unique to Erik. The
FAC states, however, that the sixth and seventh causes of action
from the original complaint, while not restated in the FAC,
“remain unchanged” and “are not superseded” by the FAC. It
appears, therefore, that the plaintiffs’ intention was for Erik to
proceed under the original complaint and Dolores to proceed
under the FAC. Dolores represents that Erik has since dismissed
his claims.
4
Further complicating matters, the FAC does not renumber
the causes of action to reflect the omission of Erik’s causes of
action, instead skipping the sixth and seventh and labeling what
are actually the sixth, seventh, eighth, and ninth causes of action
as the eighth, ninth, tenth, and eleventh causes of action.
Although we do not endorse this approach, nor the splitting of
causes of action between two complaints, we will follow the FAC’s
numbering for purposes of this appeal.
2. Facts alleged
We summarize the facts alleged in the FAC.
Dolores and Jesse are Lucy’s adult children. Rochelle is
Jesse’s daughter and Lucy’s granddaughter, and served as Lucy’s
conservator. Erik is Lucy’s grandson.
In January 2015, following years of estrangement, Dolores
began regularly visiting Lucy. “These regular visits . . . became a
reunification and re-bonding between mother and daughter.” On
or about July 10, 2015, Lucy “stated she wanted to call her
lawyer and amend her trust to include” Dolores.2
Also beginning on or about July 10, 2015, Rochelle
“engaged in an intentional course of conduct over the following
year to cause severe emotional distress” to Dolores “by . . . unduly
influencing [Lucy] and distorting her understanding and
perception” of Dolores “such that [Lucy] would fully reject and
exclude” Dolores “from her life.”3 Rochelle attempted to convince

2 None of the FAC’s causes of action concerns Lucy’s trust.
3 The FAC alleged that some of Rochelle’s actions were
directed not only at Dolores but also at Erik, and Dolores and
Erik suffered some of the same harms. Because Erik is neither
party to this appeal nor included in any of the FAC’s causes of
5
Lucy to change her trust to favor Rochelle and Jesse, falsely
represented to Lucy that Dolores caused Lucy’s caretaker to
resign, unsuccessfully attempted to convince Lucy to sign
restraining order papers against Dolores, compelled Lucy to sign
new powers of attorney and advance health care directives
naming Jesse as primary agent instead of Dolores, and falsely
told Lucy that Dolores was trying to put Jesse in jail, which led to
an unwell Lucy going to court on February 24, 2016 to try to
testify on Jesse’s behalf. “[T]he trauma of going to court . . . ,
based on an intentional misrepresentation by [Rochelle], stirred
anger and resentment in [Lucy] against [Dolores],” causing Lucy
to “sever[ ] her relationship[ ] with [Dolores] . . . per the plan of
[Rochelle].”
From February 24, 2016 until Lucy’s death later that year,
Rochelle blocked all visits and communication between Lucy and
Dolores. Rochelle did not timely inform Dolores when Lucy died,
attempted to exclude Dolores from Lucy’s funeral, and prevented
Dolores from viewing Lucy prior to her burial.
3. Causes of action
The FAC asserted nine causes of action, numbered first
through eleventh with the sixth and seventh skipped, as
explained above. The first was against Rochelle for intentional
infliction of emotional distress, alleging, “[Rochelle’s] intentional
conduct in interfering in the relationship between [Lucy] and
[Dolores], in making false statements about [Dolores] to [Lucy],
in agitating [Lucy] against [Dolores] such that [Lucy] would sever
all relations with [Dolores] and refuse to have any further contact

action, for simplicity we summarize the allegations only as they
pertain to Dolores, omitting reference to Erik.
6
with [Dolores], in coercing [Lucy] to execute subsequent health
care directives excluding [Dolores] immediately on the heels of
the same freely executed by [Lucy] naming [Dolores] as agent[ ],
continuing to exclude [Dolores] from [Lucy] for the remainder of
her life, preventing [Dolores] from seeing [Lucy] . . . , failing to
timely inform [Dolores] of the death of [Lucy], attempting to
prevent [Dolores] from seeing [Lucy] one last time at the funeral,
and other heinous conduct was done with the intent to cause
severe emotional and physical distress, humiliation and mental
anguish in [Dolores].”
The second cause of action was against Rochelle for
intentional interference with parental consortium, alleging that
Rochelle “intentionally deprived [Dolores] of the society, care and
affection of [Lucy] by intentionally interfering in the motherdaughter relationship and causing it to be severed.” The second
cause of action summarized the conduct severing the motherdaughter relationship, much of it materially identical to the first
cause of action, including false statements, agitating Lucy
against Dolores, “unduly influencing [Lucy] to believe that
[Dolores] w[as a] bad p[erson],” coercing Lucy to change her
health care directives, preventing Dolores from seeing Lucy, and
attempting to exclude Dolores from Lucy’s funeral.
The third cause of action was against Rochelle and Jesse
for conspiracy, alleging they conspired to interfere with and sever
the relationship between Lucy and Dolores “for the purpose of
causing harm to [Dolores] as set forth in the First and Second
Causes of Action.”
The fourth cause of action was against Rochelle for elder
abuse, alleging that Dolores was “an elder within the meaning of
Welfare and Institutions Code section 15610 et seq.,” meaning
7
she was “65 years of age or older.” (Welf. & Inst. Code,
§ 15610.27.) The fourth cause of action, like the second cause of
action, referred to Dolores’s right to have “the society, care and
affection of ” Lucy, and alleged that Rochelle’s earlier described
misconduct constituted abuse under Welfare and Institutions
Code section 15610.07.4
The fifth cause of action was against Rochelle for false light
invasion of privacy, alleging that Rochelle had made false
statements about Dolores to Lucy, including that “[Dolores] was
putting [Jesse] in jail, that [Dolores] was a bad person, that
[Dolores] was not properly caring for [Lucy], that [Dolores] was
the reason [Lucy’s caretaker] stopped caring for [Lucy], that
[Dolores] would disrupt the care and life of [Lucy] . . . and that
[Dolores] was a danger and should be kept away by a restraining
order.” The cause of action alleged that “[t]he foregoing
statements . . . placed [Dolores] in a false light in the public eye
in that [Lucy] severed all contacts with” Dolores. “The false
representations . . . were offensive and objectionable to [Dolores]
and to a reasonable person of ordinary sensibilities in that the
representations caused, and were done with the intent to cause,
the complete disruption of the mother-daughter relationship

4 Welfare and Institutions Code section 15610.07,
subdivision (a) defines “ ‘[a]buse of an elder or a dependent
adult’ ” as “(1) Physical abuse, neglect, abandonment, isolation,
abduction, or other treatment with resulting physical harm or
pain or mental suffering. [¶] (2) The deprivation by a care
custodian of goods or services that are necessary to avoid physical
harm or mental suffering. [¶] (3) Financial abuse, as defined in
Section 15610.30.”
8
between [Dolores] and [Lucy], and made [Dolores] the object of
scorn and contempt by [Lucy].”
The eighth, ninth, and tenth causes of action were against
Jesse for assault, battery, and domestic violence, respectively,
stemming from an alleged incident in which Jesse “struck
[Dolores] in the face.” The eleventh cause of action alleged
conspiracy between Rochelle and Jesse to commit the assault,
battery, and domestic violence.
B. Relevant Proceedings Below
On April 24, 2018, the trial court granted Jesse’s motion for
judgment on the pleadings against the tenth cause of action for
domestic violence and the eleventh cause of action for conspiracy,
although the eleventh cause of action remained against Rochelle.
That ruling is not at issue in this appeal.
On July 16, 2018, the trial court granted Rochelle’s motion
in limine regarding the second cause of action for intentional
interference in parental consortium, which the trial court
construed as a nonstatutory motion for judgment on the
pleadings. The trial court concluded that Dolores had not stated
a cause of action because only a minor child could bring an
intentional interference claim. The trial court noted an absence
of case authority allowing an adult child to do so, and BAJI jury
instruction No. 7.97.1’s repeated references to a minor child. The
trial court further stated that “where the parent is no longer the
sole provider for the adult child, such a cause of action would be
meaningless. Furthermore, such a cause of action could give rise
to numerous claims by children against . . . third parties, e.g. a
subsequent spouse of a parent who arguably interferes in the
relationship of the stepchild with the parent.”
9
On July 27, 2018, defendants filed a “request in limine”
asking the trial court sua sponte to grant judgment on the
pleadings against the first, third, fourth, and fifth causes of
action, for intentional infliction of emotional distress, conspiracy,
elder abuse, and false light invasion of privacy. Defendants
contended those causes of action “are legally meaningless
redundancies of the Second Cause of Action” and “should be
dismissed on the same grounds.”
Dolores sought a writ of mandate in this court reversing
the dismissal of the second cause of action, which we summarily
denied on August 29, 2018. The Supreme Court denied review of
our ruling on October 10, 2018.
At the start of trial on November 6, 2018, the trial court
heard argument and granted defendants’ request for a judgment
on the pleadings against the first, third, fourth and fifth causes of
action. The trial court stated that “when you relabel a cause of
action intentional infliction of emotional distress and you’re
seeking to obtain the same damages that the court has prevented
you from obtaining by virtue of the fact that you can’t proceed on
parental loss of consortium, it’s a backdoor way around the
court’s ruling [dismissing the second cause of action].” The court
concluded that the first five causes of action “are all arising out of
the same primary right.”
The trial court asked if the parties were prepared to
proceed on the eighth, ninth, and eleventh causes of action for
assault, battery, and conspiracy to commit assault and battery.
Dolores’s counsel asked for “a day or two” to confer with his client
and check the availability of witnesses. After speaking briefly
with his client, Dolores’s counsel modified his request and asked
for a week to research whether proceeding on the remaining
10
causes of action would create collateral estoppel issues should the
dismissed causes of action be revived on appeal.
Following further discussion, the trial court stated it was
“puzzled” by counsel’s concern with collateral estoppel, but
ultimately offered a two-day continuance. Dolores’s counsel
replied, “Then I have no choice,” and requested dismissal without
prejudice of the eighth, ninth, and eleventh causes of action,
which the trial court granted.
The trial court entered judgment in favor of defendants on
December 14, 2018. Dolores timely appealed.
STANDARD OF REVIEW
“ ‘The standard of review for a motion for judgment on the
pleadings is the same as that for a general demurrer: We treat
the pleadings as admitting all of the material facts properly
pleaded, but not any contentions, deductions or conclusions of
fact or law contained therein. . . . We review the complaint
de novo to determine whether it alleges facts sufficient to state a
cause of action under any theory.’ ” (Burd v. Barkley Court
Reporters, Inc. (2017) 17 Cal.App.5th 1037, 1042.)
We review the denial of a request for a continuance for
abuse of discretion. (See People v. ConAgra Grocery Products Co.
(2017) 17 Cal.App.5th 51, 153–154.)
DISCUSSION
I. The FAC Does Not State A Cause Of Action For
Intentional Interference With Parental Consortium
Dolores argues the trial court erred in ruling that the FAC
failed to state a cause of action for intentional interference with
11
parental consortium. We disagree. We begin with a discussion of
the relevant authority.
A. Applicable Law
1. Rudley v. Tobias
Rudley v. Tobias (1948) 84 Cal.App.2d 454 (Rudley) held
that a nine-month-old boy had no cause of action against a
woman who allegedly persuaded the infant’s father to leave the
boy and his family. The complaint alleged the woman had
“ ‘maliciously and for the purpose of breaking the family of which
plaintiff was a member and for the purpose of depriving the
plaintiff of the presence, comfort, society, guidance, affection and
paternal care of . . . the plaintiff ’s father, persuaded the
plaintiff ’s father to leave the marital household, to remove
himself from the family of which both he and plaintiff were
members, and to establish his permanent residence with the
defendant.” (Id. at p. 455.)
The court noted that before 1939, Civil Code section 49
provided that “ ‘[t]he rights of personal relations forbid: (1) The
abduction of a husband from his wife or a parent from his child.’ ”
(Rudley, supra, 84 Cal.App.2d at p. 456; see Stats. 1905, ch. 70,
§ 1, p. 68.) The court further noted that for purposes of Civil
Code section 49, “the words ‘abduction’ and ‘enticement’ . . . have
been judicially interpreted as synonymous.” (Rudley, at p. 457,
citing Humphrey v. Pope (1898) 122 Cal. 253, 256 (Humphrey)
5
and Horowitz v. Sacks (1928) 89 Cal.App. 336, 340 (Horowitz).)

5 Humphrey addressed the pre-1939 version of Civil Code
section 49 forbidding “[t]he abduction or enticement of a wife
from her husband” and “[t]he abduction of a husband from his
wife.” (Civ. Code, former section 49, Stats. 1905, ch. 70, § 1,
12
In 1939, however, the Legislature amended Civil Code
section 49 “by entirely omitting” the subdivision prohibiting
abduction of a husband or a parent, although a separate
subdivision forbidding “ ‘abduction or enticement of a child from a
parent’ ” remained. (Rudley, supra, 84 Cal.App.2d at p. 456; see
Civ. Code, § 49, subd. (a) (Stats. 1939, ch. 128, § 1, p. 1245).)
Contemporaneous with this amendment, the Legislature also
added Civil Code section 43.5, which “outlaw[ed] so-called ‘Heart
Balm’ suits by providing that ‘No cause of action arises for[:]
(a) Alienation of affection.’ ” (Rudley, at p. 456; see Stats. 1939,
ch. 128, § 2, p. 1245.)6
The court concluded that by omitting the previously
express cause of action for abduction of a parent from a child

p. 68; Humphrey, supra, 122 Cal. at p. 256.) At issue there was
whether a wife could recover for “enticement” as opposed to
“abduction” of her husband, despite the absence of that language
in the statute. (Humphrey, at p. 256.) The Supreme Court held
that “[t]he abduction meant in both clauses we think should be
held to be the same,” that is, to include “enticement,” in part
because legal authorities had interpreted the term “abduction”
broadly to include a taking away “by fraud and persuasion” as
well as by force. (Id. at pp. 256–257.)
6 Civil Code section 43.5 also bars claims for “[c]riminal
conversation,” “[s]eduction of a person over the age of legal
consent,” and “[b]reach of promise of marriage.” (Civ. Code,
§ 43.5, subds. (b)–(d).) “Sometimes referred to as the ‘anti-heartbalm statute,’ [Civil Code] 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.” ’ ”
(Richelle L. v. Roman Catholic Archbishop (2003)
106 Cal.App.4th 257, 266–267 (Richelle L.).)
13
under Civil Code section 49, and prohibiting claims for alienation
of affection under Civil Code section 43.5, “the Legislature must
be deemed to have intended to do exactly what it did do, namely
to remove from the law the right of action covered by the omitted
subsection.” (Rudley, supra, 84 Cal.App.2d at p. 457.)
The court rejected the plaintiff ’s contentions that his claim
was “comparable to an action for the wrongful death of a parent,”
not a “prohibited action for alienation of affections,” and “that the
integrity of the family relation and social considerations demand
judicial recognition of the defendant’s liability for enticing
plaintiff ’s father from the family home.” (Rudley, supra,
84 Cal.App.2d at p. 456.) The court stated, “Social
considerations, and the alleged necessity or advisability of
protecting the family relation by upholding the child’s action here
contended for, are arguments more properly addressed to the
legislative branch. The existence or nonexistence of such a cause
of action must be determined by the state of the law as it now
exists, and the evident intention of the legislative body.” (Id.
at p. 457.)
2. Rosefield v. Rosefield
Fifteen years after Rudley, the Court of Appeal held that a
child, age two and a half, stated a cause of action against her
grandfather, who allegedly abducted the child from her mother in
league with the child’s father. (Rosefield v. Rosefield (1963)
221 Cal.App.2d 431, 433, 436 (Rosefield).) The court stated that a
child “is entitled to the society and care, and protection and
affection of her mother. The acts of [the grandfather] as alleged
have deprived her of these rights.” (Id. at p. 436.) The court
stated that the father’s participation did “not change matters so
14
far as the child’s rights are concerned, though it may bear on
damage.” (Id. at pp. 436–437.)
The grandfather argued that Civil Code section 49, which
prohibited abduction of a child from a parent, “could only give a
right to the parent entitled to custody,” not to the child.7
(Rosefield, supra, 221 Cal.App.2d at p. 437.) The court disagreed,
stating, “It is not essential to the child’s action that she bring her
cause under [Civil Code section 49]. The general principle of
liability is that for every wrong there is a remedy. [Citations.] If
the case factually is as the pleading states it to be, the child has
been deprived of her mother. For this, we believe she has stated
a cause.” (Rosefield, at p. 437.)
The court distinguished Rudley, stating, “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.”
(Rosefield, supra, 221 Cal.App.2d at p. 437.) The distinction
mattered because “[i]n 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.” (Ibid.) Moreover, “[the
grandfather] here has not, as did defendant in the Rudley case,
taken the affections of the parent from the child; indeed, [the
mother’s] complaint alleges that she has gone to much expense in
trying to regain her daughter.” (Ibid.)
8

7 The mother was a coplaintiff in Rosefield along with her
daughter. (Rosefield, supra, 221 Cal.App.2d at p. 432.) The
portion of the opinion discussing the mother’s causes of action
is not relevant to this appeal.
8 Rosefield arguably is in tension with Haldane v. Bogy
(1962) 208 Cal.App.2d 298, which relied on Rudley to conclude
15
3. Borer v. American Airlines, Inc. and Baxter v.
Superior Court
In Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441
(Borer), our Supreme Court held that children have no cause of
action for loss of consortium due to negligent injury to a parent.
In that case, after a mother was injured by a lighting fixture at
an airport, her nine minor children sought damages for being
“ ‘deprived of the services, society, companionship, affection,
tutelage, direction, guidance, instruction and aid in personality
development, all with its accompanying psychological,
educational and emotional detriment, by reason of Patricia Borer
being unable to carry on her usual duties of a mother.’ ”
While acknowledging that the children had suffered a
“foreseeable injury to a legally recognized relationship,” the court
declined to recognize their cause of action for loss of parent-child
consortium because “social policy must at some point intervene to
delimit liability.” (Borer, supra, 19 Cal.3d at p. 446.) The court
concluded that “[j]udicial recognition of a cause of action for loss
of consortium, we believe, must be narrowly circumscribed. Loss

that a father had not stated a cause of action against his ex-wife
for “wrongfully harbor[ing], hous[ing] and conceal[ing]” their
minor children from the father. (Haldane, at p. 300.) In that
case, however, the court took judicial notice of court records
indicating the children “were, in fact, legally with their mother
and in her custody.” (Id. at p. 301.) The Rosefield court
distinguished Haldane by characterizing it as a case in which the
father “had been deprived of the custody of the children by
previous decree of the court, but attempted to bring action on
their behalf. The action was considered, apparently, as an
alienation of affections case.” (Rosefield, supra, 221 Cal.App.2d
at p. 437.)
16
of consortium is an intangible injury for which money damages
do not afford an accurate measure or suitable recompense;
recognition of a right to recover for such losses in the present
context, moreover, may substantially increase the number of
claims asserted in ordinary accident cases, the expense of settling
or resolving such claims, and the ultimate liability of the
defendants.” (Id. at p. 444.)
The court explained why claims for loss of spousal
consortium were permissible, but claims for loss of parent-child
consortium were not. (Borer, supra, 19 Cal.3d at p. 448.) The
court stated, inter alia, that “actions by children for loss of
parental consortium create problems of multiplication of
actions and damages not present in the spousal context” (id.
at pp. 448–449), because, as opposed to a claim by a single
spouse, “ ‘the right here debated would entail adding as many
companion claims as the injured parent had minor children,’ ”
(id. at p. 449).
In a footnote, the court made clear its ruling did not
abrogate Rosefield: “The considerations which lead us to reject a
cause of action for negligent injury to consortium in a parentchild context do not bar an action for intentional interference
with parental consortium. An action for intentional interference
with consortium, recognized by precedent in California [citing
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.”
(Borer, supra, 19 Cal.3d at p. 451, fn. 3.)
Along with Borer, the Supreme Court issued Baxter v.
Superior Court (1977) 19 Cal.3d 461 (Baxter), which held that,
just as a child cannot recover for loss of consortium due to
17
negligent injury of a parent, a parent cannot recover for loss of
consortium due to negligent injury of a child. (Id. at p. 466.)
Similar to Borer, Baxter included a footnote stating, “Our decision
does not bar a parent’s action for intentional interference with
the parent-child relationship, a cause of action recognized by
California precedent.” (Id. at p. 466, fn. 3.) In support, Baxter
cited Rosefield as well as Horowitz, supra, 89 Cal.App. at p. 340,
which stated, “It is settled law that the abduction of . . . a child
from its parent[ ] is actionable whether the abduction is done by
force or by use of persuasion.”
9 (Horowitz, at p. 340; see Baxter,
at p. 466, fn. 3.)
B. Analysis
In ruling that Dolores had failed to state a cause of action
for intentional interference with parental consortium, the
trial court largely relied on the fact that Dolores is not a minor.
Dolores’s appellate briefing focuses primarily on this aspect of the
trial court’s ruling, arguing that the age of the child should not
matter.
We need not decide whether only minor children may bring
claims for intentional interference with parental consortium,
because we conclude the FAC’s allegations do not state that cause
of action regardless of Dolores’s age.

9 In Horowitz, which predated the 1939 amendments to
Civil Code section 49, a husband obtained a judgment against his
wife’s family members for abducting her, although the family
members claimed the wife suffered from dementia and her
husband had in fact abducted her “for the purpose of getting
possession of her money.” (Horowitz, supra, 89 Cal.App.
at pp. 338–339.) The Court of Appeal reversed because of
evidentiary errors. (Id. at pp. 341–345.)
18
As set forth persuasively in Rudley, the Legislature, by
amending Civil Code section 49 and adding Civil Code
section 43.5 in 1939, eliminated any cause of action a child may
have against a person who abducts or entices his or her parent
away from the child, at least when the damages claimed are a
loss of affection. (Rudley, supra, 84 Cal.App.2d at p. 457.)
Rudley’s holding does not depend on the age of the child; in that
case even a nine-month-old infant could not state a cause of
action based on the abduction of his father by enticement. (Id.
at p. 455.) The code sections underlying Rudley’s holding have
not changed since 1939, and we have found no case abrogating or
disagreeing with Rudley.
The cause of action barred in Rudley is analogous to the
second cause of action in the FAC. The FAC alleged that
Rochelle “intentionally deprived [Dolores] of the society, care and
affection of [Lucy] by intentionally interfering in the motherdaughter relationship and causing it to be permanently severed.”
Similarly, the complaint in Rudley alleged that the defendant
persuaded the father “to remove himself from the family of
which both he and plaintiff were members,” and that
defendant did so “ ‘maliciously and for the purpose of breaking
the family . . . and . . . depriving the plaintiff of the presence,
comfort, society, guidance, affection and paternal care of ’ ” the
father. (Rudley, supra, 84 Cal.App.2d at p. 455.)
In short, in both Rudley and the instant case, the plaintiffs
claimed damages for a loss of “society” and “affection” from their
parent, whom the defendant allegedly had persuaded to abandon
them for the purpose of destroying the familial relationship.
That claim runs afoul of the 1939 changes to the Civil Code
19
eliminating the cause of action for parental abduction and
barring claims for alienation of affection.
Rosefield did not hold otherwise. 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. (Rosefield, supra,
221 Cal.App.2d at p. 437.) Also, in Rosefield there was no
allegation that the defendant had “taken the affections of the
parent from the child,” a claim prohibited by Civil Code
section 43.5. (Rosefield, at p. 437.) Instead, the child had lost
“the society and care, and protection and affection of [the]
mother” because the defendant had physically taken the child
from the mother, not because the mother had lost affection for
her. (Rosefield, at p. 436.)
The points Rosefield identified to distinguish Rudley
similarly render Rosefield inapplicable to the instant case. In
contrast to Rosefield, the FAC does not allege that Rochelle
physically took Dolores from Lucy, but that Rochelle through her
misconduct turned Lucy against Dolores, causing Lucy to
“sever[ ] her relationship[ ] with [Dolores]”—in other words, that
Rochelle “t[ook] the affections of the parent from the child.”
(Rosefield, supra, 221 Cal.App.2d at p. 437.) Unlike the child in
Rosefield, Lucy was an adult and “responsible person” capable of
consenting to her “abduction” (ibid.), in this case accomplished
through persuasion rather than force.10

10 The FAC alleged that Lucy was 87 years old and “in
declining health,” and therefore “was vulnerable and the
deceptive conduct of [Rochelle] confused her,” but did not allege
Lucy was incapable of giving consent. We therefore need not
20
The footnotes in Borer and Baxter, which, as far as we have
discovered, remain the only guidance the Supreme Court has
provided on the tort of intentional interference with parental
consortium, support our conclusion that Dolores has no cause of
action under the facts alleged in the FAC. Both cases cite
Rosefield as the case recognizing the tort under California law.
(Borer, supra, 19 Cal.3d at p. 451, fn. 3; Baxter, supra, 19 Cal.3d
at p. 466, fn. 3). As discussed, the cause of action asserted in
Rosefield has no resemblance to the cause of action asserted here.
Moreover, because Rosefield distinguished rather than disagreed
with Rudley, Borer’s and Baxter’s approval of Rosefield cannot be
read to abrogate Rudley.
Borer also described intentional interference with
consortium as “a relatively unusual tort that presents no danger
of multiplication of claims or damages” and that “may serve to
deter child stealing and similar antisocial conduct.” (Borer,
supra, 19 Cal.3d at p. 451, fn. 3.) This description does not apply
to the cause of action framed by Dolores. The reference to “child
stealing” suggests the sort of extreme “antisocial conduct” that
might give rise to an intentional interference claim, conduct
notably absent in the instant case.11 Also, in contrast to the
“relatively unusual” situation of a person abducting a child from
her parent, claims like Dolores’s might arise from common
disruptions in family dynamics, such as “a subsequent spouse of a

address whether or how a parent’s lack of consent to his or her
“abduction” might affect a cause of action for intentional
interference with parental consortium.
11 This is not to say the misconduct alleged in the FAC is
not “antisocial,” just that it is not “similar” to child stealing,
either in degree or kind. (Borer, supra, 19 Cal.3d at p. 451, fn. 3.)
21
parent who arguably interferes in the relationship of the
stepchild with the parent,” as the trial court in the instant case
stated. We hesitate to expand Rosefield’s reach to these kinds of
disruptions given our Supreme Court’s admonition that “[j]udicial
recognition of a cause of action for loss of consortium . . . must be
narrowly circumscribed.” (Borer, supra, 19 Cal.3d at p. 444.)
Dolores attempts to distinguish her cause of action from
that in Rudley, arguing that in an intentional interference claim,
the wrongdoing is the “disruption of the parent-child
relationship,” whereas in Rudley, the defendant’s enticement of
the father “away from the marital home” “was the objectionable
conduct,” with “[t]he loss of society and affection . . . secondary to
the objectionable enticement.”
By this argument Dolores appears to suggest that in
Rudley the loss of affection was merely the byproduct, rather
than the intent, of the wrongful enticement, whereas Rochelle
allegedly deliberately targeted Dolores’s relationship with Lucy
for destruction. This argument is undercut by the allegations
in Rudley, which stated the defendant enticed the
father “ ‘maliciously and for the purpose of breaking the
family . . . and . . . depriving the plaintiff of the presence, comfort,
society, guidance, affection and paternal care of ’ ” the father.
(Rudley, supra, 84 Cal.App.2d at p. 455.) Rudley rejected the
claim despite the allegations of malicious and intentional conduct
designed to break the plaintiff’s family apart and separate father
from child.
Further, the 1939 changes to the Civil Code make clear
that the Legislature no longer wanted the courts adjudicating
suits for emotional injuries arising from disruptions in family
dynamics caused by the “abduction” of a parent. The Legislature
22
omitted parental abduction claims entirely from Civil Code
section 49 without preserving claims based on intentional
conduct, and expressly barred claims for alienation of affection,
again without reference to whether the conduct was intentional.
(See Civ. Code, §§ 43.5, 49.) Simply put, there is no support in
statute or precedent for Dolores’s second cause of action.
II. The Trial Court Properly Dismissed The First, Third,
Fourth, And Fifth Causes Of Action
The trial court concluded that the first, third, fourth, and
fifth causes of action—for intentional infliction of emotional
distress, conspiracy, elder abuse, and false light invasion of
privacy—arose “out of the same primary right” as the invalid
second cause of action, and dismissed them. On appeal, Dolores
argues the “primary right” doctrine applies only in the context of
res judicata, and regardless, the first, third, fourth, and fifth
causes of action involved different primary rights.
Whatever language the trial court may have used, the crux
of its ruling is that the first through fifth causes of action are all
based on the same alleged wrongdoing, namely defendants’
attempts to turn Lucy against her daughter, thus depriving
Dolores of the society, care, and affection of her mother. As set
forth above, California law does not recognize causes of action
based on the abduction or enticement of a parent away from a
child resulting in alienation of affection.
This cannot be avoided by “the mere recharacterization of
the abolished . . . cause of action as a form of negligence or some
other acknowledged tort.” (Richelle L., supra, 106 Cal.App.4th
at p. 267.) For example, the “abolished torts of alienation of
affections and criminal conversation [are] not revived by
recognition of the independent tort of intentional infliction of
23
emotional distress.” (Ibid., citing Strock v. Pressnell (1988)
38 OhioSt.3d 207, 215.) To conclude otherwise would allow
plaintiffs to evade Civil Code sections 43.5 and 49 simply by
“camouflag[ing] an abolished action with the catchwords of the
common law.” (Richelle L., at p. 267.)
In Richelle L., for example, the plaintiff sued a priest and
his archdiocese for “injuries she allegedly sustained as a result of
a sexual relationship initiated by” the priest. (Richelle L., supra,
106 Cal.App.4th at p. 263.) The Court of Appeal stated that the
plaintiff ’s causes of action, for “breach of fiduciary duty, fraud
and deceit, and intentional and negligent infliction of emotional
distress,” “all arise from alleged conduct that can fairly be
described as a sexual seduction,” a cause of action barred by
Civil Code section 43.5. (Richelle L., at p. 266; see Civ. Code,
§ 43.5, subd. (c) [no cause of action for “[s]eduction of a person
over the age of legal consent”].) To prevail, then, the plaintiff had
to “establish that [the priest’s] alleged conduct breached a duty of
care independent of the statutorily barred cause of action for
seduction.” (Richelle L., at p. 267.) The court proceeded to
analyze whether the plaintiff could assert independent claims for
“ ‘clerical malpractice’ ” or breach of fiduciary duty, and concluded
she could not. (Id. at pp. 269–270, 280–282.)
Here, the first through fifth causes of action “all arise from
alleged conduct that can fairly be described” (Richelle L., supra,
106 Cal.App.4th at p. 266) as abduction of a parent resulting in
alienation of affection. The first cause of action for intentional
infliction of emotional distress focuses entirely on conduct
allegedly driving a wedge between Dolores and Lucy, including
making false statements about Dolores to Lucy, “agitating” Lucy
to “sever all relations with” Dolores, convincing Lucy to sign
24
documents excluding Dolores as her health care agent, and
preventing Dolores from seeing Lucy, even at Lucy’s funeral. The
third cause of action for conspiracy is based on the first and
second causes of action. The fourth cause of action for elder
abuse merely incorporates the allegations of wrongdoing from the
first cause of action. The fifth cause of action for false light
exclusively concerns attempts to ruin Dolores’s reputation with
Lucy, which Dolores alleged was “offensive and objectionable”
because the false representations “caused, and were done with
the intent to cause, the complete disruption of the motherdaughter relationship.”
These causes of action do not allege a breach of duty other
than defendants’ interference with the mother-daughter
relationship aimed at turning Lucy against Dolores, thus robbing
Dolores of her mother’s affection. Whatever the FAC may label
its causes of action, the first, third, fourth, and fifth causes of
action fail for the same reason the second cause of action for
intentional interference with parental consortium fails.
Dolores argues that the harms alleged under each cause of
action differ. She asserts the cause of action for emotional
distress alleged harm “to her emotional well-being,” the cause of
action for interference with parental consortium alleged harm “to
her familial relationship with her mother,” the cause of action for
elder abuse alleged harm “to her dignity as an elder,” and the
cause of action for false light alleged “reputational harm.” She
concedes the conspiracy cause of action does “not seek redress for
a separate right” but merely extends the first two causes of action
to include Jesse as well as Rochelle.
Dolores’s argument ignores the fact that the harms alleged
in the first through fifth causes of action all flowed from her
25
mother severing their relationship. Put another way, the first
through fifth causes of action allege no harms other than those
arising from the loss of that relationship. As alleged, those
causes of action are inseparable from the underlying conduct of
abduction of a parent resulting in alienation of affection, and
thus none is cognizable under California law.
Dolores has not requested leave to amend the FAC nor has
she made any argument as to how amendment could cure the
FAC’s defects. (Churchman v. Bay Area Rapid Transit Dist.
(2019) 39 Cal.App.5th 246, 252 [it is plaintiff ’s burden to show
how amendment can cure defects in complaint].) Accordingly, the
trial court did not err in dismissing the first through fifth causes
of action.
III. The Trial Court Did Not Abuse Its Discretion By
Denying A Continuance
Dolores argues that the trial court abused its discretion by
denying her request for a continuance after granting the
judgment on the pleadings against her first and third through
fifth causes of action, and thus her dismissal of the remaining
eighth, ninth, and eleventh causes of action for assault, battery,
and conspiracy to commit assault and battery was involuntary
and should be set aside.
Assuming arguendo we may set aside a voluntary dismissal
following an erroneous denial of a continuance, Dolores’s
challenge nonetheless fails because the trial court did not abuse
its discretion. The trial court did not deny Dolores’s request for a
continuance outright, but offered her two days instead of five.
Rather than accept that continuance and request more time if it
proved insufficient, Dolores’s counsel immediately rejected the
offer and dismissed the remaining claims.
26
A two-day continuance would have been more than
reasonable. Dolores was on notice that the trial court might
grant the judgment on the pleadings that day. Defendants had
filed their request that the court do so sua sponte more than
three months earlier, arguing that the first and third through
fifth causes of action were barred for the same reasons as the
dismissed second cause of action for intentional interference with
parental consortium. It should not have been a surprise, then,
that the trial court might grant defendant’s request once this
court and the Supreme Court left untouched the trial court’s
ruling dismissing the second cause of action. Dolores does not
explain why she was not prepared for this contingency. Under
those circumstances, the trial court did not abuse its discretion in
denying the five-day continuance.
Defendants argue Dolores’s voluntary dismissal of the
eighth, ninth, and eleventh causes of action, ostensibly without
prejudice, in fact was with prejudice because the statute of
limitations on her dismissed claims has already run. Defendants
request that we modify the judgment accordingly. Because
defendants have not appealed from the judgment, we reject
this request without expressing any opinion as to its merit.
(Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 665 [“ ‘ “ ‘a
respondent who has not appealed from the judgment may not
urge error on appeal’ ” ’ ”].)

Outcome: The judgment is affirmed. Defendants are awarded their costs on appeal.

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