Delores Tarin v. Rochelle Lind

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’ ” ’ ”].)

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