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Statutory-Based Memorandum Using a California Statute (Note Discussion section follows IREAC formula) Memorandum

Confidential & Privileged Attorney Work Product

To: From: Client: Re: Date:

JC Associate Attorney Mrs. Marge Simpson Parents Liability for Minor Son's Baby

This memo responds to your request I research whether our clients, Mr. and Mrs. Simpson, incur liability under California Civ. Code § 1714.1. Their minor son engaged in sexual activity with a minor girl, producing a pregnancy and a baby. This memo does not address other theories of liability, such as negligent supervision. Background Facts Mrs. Simpson's son, Bart, is fourteen. When he was thirteen, he engaged in a consensual sexual relationship with Marcia Brady, who has recently turned eighteen. Beginning in January, 2008, Marcia began to tutor Bart in biology. The tutoring occurred in the Brady home, often in Marcia's bedroom. The tutoring sessions became sexual in late January when Marcia suggested they have sexual intercourse. Bart refused at first, claiming he wanted to "save himself for marriage." But he acquiesced when Marcia threatened "to tell all the kids at school [that Bart] couldn't do it." Neither Mrs. Brady nor her husband was aware that Bart and Marcia were having any sexual activity during this time. Likewise, the Simpsons did not know. In late March, Mrs. Brady learned about the sexual activity and she told the two to stop. Instead, Marcia and Bart continued, but did so in Mrs. Simpson's home, while she was out running errands. In May, Mrs. Simpson became aware of the activity in her home and told Bart to stop, or at least use a condom. Bart and Marcia continued to have sex for a few weeks more. But Marcia broke things off when she met a "groovy new guy" at school. In July, Mrs. Brady discovered Marcia was pregnant with Bart's child and demanded the Simpsons pay for the costs of the pregnancy. Marcia gave birth in September of 2008 and now the Bradys also seek damages for the cost of raising the child. Issue Presented A thirteen-year-old boy engages in a continuous, consensual sexual relationship with a seventeenyear-old girl. The girl becomes pregnant. Both sets of parents know that the minors were having unprotected sexual intercourse. California Civ. Code § 1714.1 imputes liability to a parent for a child's "willful" acts. Is unprotected, consensual, and procreative sex between minors a "willful" act within the meaning of 1714.1?

Brief Answer No. Parental liability attaches only upon a finding that a child "willfully committed" a harmful act. Cal. Civ. Code § 1714.1. Specifically, "consensual" sex between two minors is not a "willful" act within the meaning of the statute. This is because there is no unwilling participant. Parental knowledge of the consensual sex is also not a factor under statutory liability. Cynthia M. v. Rodney E., 187 Cal. App. 3d 1291, 1293 (1986). Here, Bart engaged in only consensual sex with Marcia. The Bradys can argue that as grandparents the Simpsons have a moral duty to pay for the costs of Marcia's pregnancy, but the statute does not require it. A court would rule against the Bradys. Discussion Thesis In order to bring a claim under California's parental liability statute, the Bradys would have to show Bart engaged in a "willful" act against Marcia's will. However, consensual sexual activity between minors, even when it amounts to statutory rape, is not a "willful" act. Here, because Bart and Marcia engaged in consensual conduct, there is no willful act. A court would likely dismiss a claim should the Bradys sue. Rules (Statute) Parents can incur liability for the "willful acts of their minor children," provided the parents have custody and control of the minor child. Cal. Civ. Code sec. 1714.1 (West 2008). Explanation or Purpose of Statute In general, parents are not responsible for the torts of their minor children. Cynthia M., 187 Cal. App. 3d at 1293. The Legislature created an exception to this common law rule by providing crime victims with a remedy against the parents of a minor who commits "acts of wilful" misconduct. The statute imputes liability from the minor to the parent, but it caps damages at $25,000. Cal. Civ. Code § 1714.1 (West 2008). Explanation of Rule with Case Illustration Despite that it might go against the wishes of parents, consensual sexual relations between two minors is not "wilful" misconduct within the meaning of Civ. Code § 1714.1. Cynthia M, 187 Cal. App. 3d at 1293. There, two minors participated in a consensual sexual relationship, resulting in a pregnancy and the birth of a child. Both sets of parents knew that the minors were engaged in a sexual relationship and both warned about the risks of pregnancy. The girl's parents sought damages from the boy's parents for the costs of the pregnancy and the child's care. Id. at 1293-94. The court held that consensual sexual activity is not "wilful misconduct" within the meaning of § 1714.1. Id. The court reasoned that the purpose of the statute is to "protect and compensate injured innocent third persons." Id. It further noted that there is a distinction "between a party who is injured through no fault of his or her own and an injured party who willingly participated in the offense about which a complaint is made." Id. at 1295 (emphasis added). The court also noted that, even though it is a crime for minors to have sex, the court did not find one minor more culpable than the other. Thus, it concluded that the girl was not an innocent victim and therefore the boy had not engaged in a wilful act. Thus, the court would not impute any liability to the boy's parents. Id. at 1296.

Application Arguments for Prevailing Party (Comparing Case to Client's Case) Based on Cynthia M., Mrs. Simpson can argue that she incurs no liability under the statute for Bart's actions. First, the case is factually analogous to the Cynthia M. because both cases involve consensual sex between two minors. The minors in Cynthia M. were both sixteen. Here, Marcia was seventeen and Bart thirteen, more than three years difference in age and maturity. If anything, Marcia may have taken advantage of Bart, who was saving his virginity until marriage. Like the girl's mother in Cynthia M., Mrs. Brady knew or should have known that consensual sex was taking place in her home. Aside from telling them to stop, Mrs. Brady took no meaningful action to prevent a pregnancy. She never told Mrs. Simpson she discovered the behavior. Second, not only are the facts similar, but the legal issue is the same in both cases. In Cynthia M. the issue was whether "consensual sex" between two minors is "willful" misconduct within the meaning of § 1714.1. The very same issue is present here. Third, the holding and rationale of Cynthia M. applies because, not only did the court find "consensual sex" is not "willful misconduct," but the statute's purpose is to compensate a "victim" who has not willingly participated in the act. There is no evidence Bart used force to obtain Marcia's consent, as might be the case in a rape or "date rape." There is also no evidence that he used fraud or trickery to vitiate Marcia's consent. This could be the case if Bart procured her consent through use of alcohol or drugs, or if Bart indicated that he was "sterile" and could not make her pregnant. Rather, it appears that Marcia Brady, if one of the minors is more culpable than the other, is the one who engaged in "wilful" misconduct. According to Bart, not only did Marcia willingly participate in the act, but she was the instigator of the sex. Being the older minor, she should have used restraint and prudence. Most importantly, she should have taken precautions against pregnancy, whether she planned the baby or not. Fourth, public policy does not support teens having births, regardless of wedlock.. In most cases, the resulting baby neither receives a stable family environment nor the proper economic support. Counter-Application by Non-Prevailing Party Arguably, the Bradys can attempt to distinguish the facts of Cynthia M. from the present case because: l) the parents in Cynthia M. clearly knew the minors were engaged in sex; 2) the parents there did little to stop it; and 3) the parents even discussed the "dangers of pregnancy" with the minors. Thus, the minors continued to have sex despite the risks of pregnancy and against their parents' concerns. Here, Mrs. Brady may argue that when she discovered the minors were having sex, she attempted to stop it by telling them not to do it. She will likely claim she did not discuss the dangers of pregnancy because she did not want them to have sex at all. She may also argue that the issue in the two cases is not the same because Bart continued to engage in sexual conduct with Marcia despite Mrs. Brady's protests to the contrary. Thus, she might argue that Bart's actions were "wilful" in that he did an act against her orders. Following that argument, she could also assert that the holding and rationale of Cynthia M. does not apply because Mrs. Brady, not necessarily Marcia, was the injured victim and the

unwilling participant. Further, Mrs. Brady may argue that Bart has damaged her because he produced a baby with Marcia and she may have to financially support it. Rebuttal to Non-Prevailing Party's Arguments Mrs. Brady's attempt to distinguish Cynthia M. this way will not be persuasive with a court. She cannot claim she told Bart not to have sex with Marcia and therefore his subsequent sex was Marcia was wilful. The court in Cynthia M. noted that the minors there continued to have sex despite their parents' warnings about the dangers of pregnancy. Despite this, it found there was no "wilful" misconduct by either. Furthermore, even if Mrs. Brady could convince a court that Bart should have stopped when she told him to, Marcia may have already been pregnant, and therefore the additional sex did not cause the pregnancy. Mrs. Brady cannot claim "victim status" because she may have to support the baby. Both Marcia and Bart are the ones legally responsible for the support of the child. And if grandparents have support liability, it would be mutual among all four parents. So Mrs. Brady is no more harmed than Mr. and Mrs. Simpson. Conclusion Mrs. Simpson's case is very similar to Cynthia M. and a court would find it binding precedent in this situation. Because the minors here engaged in consensual sex, and because Marcia is seventeen and Bart is thirteen, a court would find, if anything, that Marcia was the perpetrator and Bart the victim. If the Bradys file a complaint, the Simpsons should consider filing a cross-complaint under 1714.1.

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Microsoft Word - Cynthia M Statutory Based Memo Mrs Simpson.doc