UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA
In re No. 97-30448DDM ALAN LOUIE, Debtor(s) ______________________/ MYCHAEL ROBINSON Plaintiff, vs. A.P. No. 97-3335DM ALAN LOUIE, Defendant. ______________________/
On November 17, 1997, plaintiff Mychael Robinson ("Robinson") filed a second amended complaint against defendant Alan Louie ("Louie") seeking non-dischargeable general and punitive damages for Louie's non-disclosure of his HIV status prior to engaging in sexual relations with Robinson. Robinson pled three causes of action against Louie: (1) fraud under subsection 2 of 11 U.S.C. § 523(a)("§ 523(a)") regarding Louie's HIV status; (2) sexual battery under subsection 6 of § 523(a); and (3) fraud under subsection 2 of § 523(a) in inducing Robinson to give up his businesses in return for financial support from Louie.
Trial was held from June 8, 1998 to June 10, 1998. Robinson appeared and was represented by Waukeen Q. McCoy, Esq. and Michael Fluetsch, Esq.; Louie appeared and was represented by James S. Mori, Esq. Upon presentation of Robinson's case, the court granted Louie's motion pursuant to Fed. R. Bankr. P. 7052© and dismissed the first and third counts, leaving only the claim of sexual battery.
The court, having considered the evidence presented and the arguments of the parties, will award Robinson a non-dischargeable judgment in favor of Robinson in the amount of $25,000 for the reasons set forth in this Memorandum Decision.(1) 
Robinson and Louie are both members of the San Francisco gay community. They met through mutual friends in the late 1980s and saw each other occasionally in social settings thereafter.
In 1988, Louie tested positive for HIV, which Robinson did not know, nor had any reason to know. After the diagnosis, Louie continued to be sexually active with multiple partners. He did not always inform his sexual partners of his HIV status, and he did not always engage in protected sex.
In late October of 1995, after Robinson and Louie had both terminated previous relationships, they began to see each other romantically. Shortly thereafter, in early November 1995, Robinson moved into Louie's home.(2) 
Robinson did not know that Louie was HIV-positive when they began dating or when he moved into Louie's house. He asked Louie outright about his HIV status on two occasions and Louie stated that he was not HIV-positive. Louie testified that he did tell Robinson previous to their sexual relationship that he was HIV-positive. The court does not find this testimony credible.
Robinson and Louie engaged in consensual sex on a regular basis once Robinson moved into Louie's home. At first, the two engaged in protected sex with the use of a condom. During one sexual encounter, when the condom slipped off of Robinson, Louie stated that Robinson did not need it. They had unprotected sex at least three times after that.
After having had unprotected sex with Louie, Robinson found some hidden bottles of Azidothymidine.(3)  When he confronted Louie about it, he learned that it belonged to Louie and that he was HIV-positive. At that point, Robinson terminated their sexual relationship. Robinson claims that had he known Louie was HIV-positive, he would never have had sex with him, protected or unprotected.
Robinson subsequently took two HIV/AIDS tests at free clinics, the second of which was more than six months after Robinson's exposure to the HIV virus. Both tests were negative. Conclusive evidence indicates that Robinson could not have contracted HIV/AIDS from this particular set of exposures if he tested negative six months after the fact.(4)  See also Kerins v. Hartley, 27 Cal. App. 4th 1062, 33 Cal. Rptr. 2d 172 (1994) (discussing the likelihood of an undetected HIV/AIDS infection several years after the exposure and the legal reasonableness of related emotional distress).
Robinson and Louie's relationship thereafter became acrimonious and led to the onset of legal proceedings. After being named as the defendant in Robinson's state court action for fraud and intentional infliction of emotional distress, among multiple other claims, Louie filed a voluntary Chapter 7 petition. Robinson filed this adversary proceeding seeking that any monetary liability on Louie's part be declared non-dischargeable under § 523(a)(2) and (6).(5) 
On Louie's motion pursuant to Fed. R. Bankr. P. 7012(b)(6), the court dismissed all of Robinson's original claims, except the claims for fraud and sexual battery.(6) 
A. Duty to Disclose
Preliminarily and significantly, Louie had a special duty towards Robinson. In California, the duty to disclose one's sexually transmitted disease ("STD") is imposed by both case law and statute. Several cases have held that persons with an STD have a duty to abstain from sex or to warn their sexual partners prior to engaging in sexual activity. Doe v. Roe, 218 Cal. App. 3d 1538,1545, 267 Cal. Rptr. 564, 567 (1990); Kathleen K. v. Robert B., 150 Cal. App. 3d 992, 997, 198 Cal. Rptr. 273, 276-77 (1984). In addition, it is a misdemeanor in California to expose another person to an STD.(7)  Thus, in the case at bar, Louie had a duty to tell Robinson that he was HIV-positive prior to engaging in sexual activity with him. By not doing so, he breached that duty.
B. Sexual Battery
Pursuant to California Civil Code § 1708.5, one who intentionally causes a sexually offensive contact is liable for a sexual battery.(8)  The act of sexual intercourse clearly constitutes intentional sexual contact. If the sexual contact is not consented to, it is also offensive, satisfying the requirements of sexual battery. Thus, the issue of consent, discussed in Section II.2.a., is critical to the determination of sexual battery. Absent a valid defense, Louie is liable for sexual battery.
Louie argued two defenses to the claim of sexual battery: (I) consent and (ii) assumption of risk.(9) 
"The term consent comes with it the assumption that previous full disclosure of the implications and probable consequences of the proposed conduct to which such consent applies has been given." 6 Am. Jur. 2d Assault and Battery § 155 n.9 (1963). Specifically, consent is vitiated by concealment of a risk of infection with HIV/AIDS. Kathleen K., 150 Cal. App. 3d. at 997; Aetna Casualty & Surety Co. v. Sheft, 989 F.2d 1005, 1109 (9th Cir. 1992). Here, Robinson's consent to sex with Louie was based on the premise that Louie, to his knowledge, was not HIV-positive. Because Louie concealed his condition, Robinson did not have the benefit of full disclosure on which to base his consent. Although he consented to the sexual acts themselves, he did not consent to sex coupled with a certain risk of exposure to HIV. Thus, Robinson's consent is invalid because he was not fully informed as to what his consent entailed.
b. Assumption of Risk
Generally, "a plaintiff who fully understands a risk of harm to himself ... caused by the defendant's conduct ... and who nevertheless voluntarily chooses to enter or remain ... within the area of that risk, under circumstances that manifest his willingness to accept it, is not entitled to recover for harm within that risk." Restatement (Second) of Torts § 496C(1) (1965). California has deviated somewhat from the general rule. Assumption of risk previously was a complete defense, barring a plaintiff from any recovery. However, since 1992, assumption of risk has been divided into two categories: (I) primary assumption of risk, which continues to operate as a complete bar to recovery; and (ii) secondary assumption of risk, which merges into the doctrine of comparative fault,(10)  precluding recovery only to the extent of the plaintiff's proportionate contribution to the harm. See Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2 (1992). The deciding factor as to which category to use is whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm. Id. at 308. If the defendant's conduct breached a duty of care towards the plaintiff, then the injury is "caused by the combined effect of the defendant's and the plaintiff's culpable conduct." Id. at 310. Under this scenario, the plaintiff's assumption of risk is secondary to the defendant's breach of duty, and comparative fault principles apply. Id. at 310-11.
As discussed above, Louie had a duty toward Robinson, the breach of which led proximately to the injury. Thus, secondary assumption of risk is the appropriate category to consider. Robinson's assumption of risk, discussed below, does not entirely preclude his recovery, but reduces it proportionately in light of his contribution to the harm.
Unprotected sex, especially within the San Francisco gay community where the level of HIV/AIDS infection and public awareness thereof is high, is clearly a risky activity against which one must take reasonable precautions. Robinson himself was very much aware of the risk in the community; he testified that he lived in the area for many years, had friends who were diagnosed with HIV or AIDS and had volunteered for the AIDS Emergency Fund. Although Robinson attempted to take precautions by asking Louie about his HIV status and initially wearing a condom, he nevertheless participated in unprotected sex with Louie. By doing so, he assumed at least a general risk of exposure. Specifically, Robinson bore the risk that Louie had not contracted HIV/AIDS from a sexual encounter more recent than his last negative HIV test. However, he believed, based on Louie's statements and conduct, that theirs was a monogamous relationship and that risk was negligible. Robinson was not sufficiently informed to know that the risk of exposure was actually much greater than that.
Because Louie breached his duty to disclose his condition, he imposed a greater risk on Robinson -- the risk of certain exposure to HIV/AIDS rather than the average risk of exposure among the gay community. In addition, Robinson's statement that he would not have had sex with Louie had he known of his HIV status shows that Robinson did not intend to assume the risk with which he was actually faced. Since Louie had greater knowledge of his own condition and because he should have disclosed any risks, his denial of his condition is a reasonable basis for Robinson to believe Louie was not infected.(11)  This is especially true given that "a certain amount of trust and confidence exists in any intimate relationship, at least to the extent that one sexual partner represents to the other that he or she is free from venereal or other dangerous contagious disease."(12)  Kathleen K., 150 Cal. App. 3d at 997. "Since knowledge and appreciation of the particular risk are essential to the defense of assumption of risk, the plaintiff must then be held to assume only the risk he appreciates, and not the risk which he does not." Restatement (Second) of Torts § 496C, comment I (1965). As for consent, Robinson assumed some risk, but not the entire risk to which he was actually exposed. Just as Robinson did not consent to his exposure to the higher risk, he likewise did not impliedly assume that particular risk. Thus, assumption of risk operates only as a partial defense in this case, which reduces Louie's monetary liability.
The damages for which Robinson is eligible are (1) compensatory damages; (2) pain and suffering damages; and (3) punitive damages.
Compensatory damages are only recoverable to the extent that Robinson incurred costs related to his exposure. Robinson's HIV tests were performed by a free clinic, so there are no testing expenses to reimburse. He had some counseling due to anxiety after learning of his exposure, but the sessions were done for no charge or a nominal fee. Thus, Robinson is not entitled to compensatory damages.
Pain and suffering damages are only compensable for the indignity of the tort itself and for the period of time during which Robinson had a legally reasonable fear when he could not be sure whether he had contracted HIV/AIDS. One can have a reasonable fear of contracting HIV/AIDS only during the six month window following exposure; the chance of testing positive for HIV/AIDS after that time is virtually nonexistent. Kerins, 27 Cal. App. 4th at 1068.(13)  Once the six months have elapsed, the plaintiff's fear, although it may be real, is no longer considered legally reasonable and does not give rise to damages. Because Robinson is no longer in danger of contracting HIV/AIDS from his prior sexual encounters with Louie, he cannot recover for his ongoing fear of contracting HIV/AIDS.
Punitive damages are available at the court's discretion as a means to punish Louie and deter him from future similar conduct.(14)  California statutory law, however, requires a showing of malice to award punitive damages.(15)  Here, there is no evidence that Louie's failure to disclose his HIV status was done out of malice. Thus, the court finds it is not appropriate to award punitive damages to Robinson.
To summarize, Robinson's damages consist of nonpecuniary damages for the indignity of suffering an intentional tort and for the pain and suffering he experienced during the six month period after exposure and before conclusive testing. In light of Robinson's secondary assumption of risk, which reduces his damages, the court finds Louie's monetary liability to Robinson to be $25,000.
D. Non-Dischargeability of Monetary Liability
Under § 523(a)(6), for monetary liability to be non-dischargeable, the defendant must intend the consequences of his act, not just the act itself. Kawaauhau v. Geiger, 118 S. Ct. 974, 977 (1998). The Kawaauhau court based its reasoning on the statutory language of § 523(a)(6) that the injury, not the act, must be "willful and malicious" for non-dischargeability. Id.
In In re Cecchini, 780 F.2d 1440, 1443 (9th Cir. 1986), the court held that "[w]hen a wrongful act ..., done intentionally, necessarily produces harm and is without just cause or excuse, it is 'willful and malicious' [for the purposes of § 523(a)(6)] even absent proof of specific intent to injure." Intent to cause the injury itself is inferred from intentionally engaging in inherently wrongful conduct. Id. Thus, if the monetary liability stems from conduct intentionally done that is inherently wrongful and without cause, the debt is non-dischargeable.
Louie's conduct satisfies the Kawaauhau requirement of intentionality towards the consequences of his act. Given the high likelihood that an injury, namely infection, could result from the act of engaging in unprotected sex while concealing one's HIV status, such conduct is inherently dangerous. Because it was inherently dangerous, Louie's intent towards the consequences of his act is presumed, pursuant to the Cecchini reasoning, which satisfies the Kawaauhua requirement. Thus, Louie's monetary liability is non-dischargeable under § 523(a)(6).
For the reasons set forth in this memorandum decision, this court intends to enter a judgment in favor of Robinson in the amount of $25,000 for Louie's liability to Robinson for sexual battery due to nondisclosure of HIV status. Robinson is also entitled to his costs.
Counsel for Robinson should lodge and serve a proposed judgment consistent with this memorandum decision within 20 days and should comply with B.L.R. 9021-1 and B.L.R. 9022-1.
Dated: August 3, 1998 ______________________________ Dennis Montali United States Bankruptcy Judge
1. This decision constitutes the court's findings of fact and conclusions of law. Fed. R. Bankr. P. 7052(a).
2. Robinson was invited into Louie's home, but the two men did not have the same understanding as to the purpose or duration of the stay. Louie stated that Robinson was only there temporarily while he was making arrangements to move out of the state. Robinson stated that the two exchanged commitment vows akin to a marriage and he moved into Louie's home permanently. In any case, the nature of the relationship between the two men is irrelevant except insofar as there was some ongoing relationship.
3. Azidothymidine is a medication used to treat HIV/AIDS.
4. This issue is discussed further in this court's Memorandum Decision in this adversary proceeding filed on September 2, 1997. This conclusion was reiterated by the testimony of plaintiff's medical expert at trial.
5. § 523(a) reads in relevant part:
"(a) A discharge under Section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge a debtor from any debt --
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by --
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition;
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity."
6. For a discussion of the dismissal of the other claims under Fed. R. Bankr. P. 7012(b)(6), see the court's Memorandum Decision filed on September 2, 1997.
7. California Health and Safety Code § 120600 reads in relevant part:
"Any person ... who exposes any person to ... any venereal disease; or any person with a venereal disease in an infectious state who knows of the condition and who ... has sexual intercourse, is guilty of a misdemeanor."
In Kathleen K., the court concluded that AIDS (and by implication, HIV) is a venereal disease for purposes of the above section. 150 Cal. App. 3d. at 997, n.3.
8. The relevant portion of California Civil Code § 1708.5, addressing sexual battery, is as follows:
"(a) A person commits a sexual battery who does any of the following:
(2) Acts with intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with person directly or indirectly results...."
9. Since the conduct of which Louie is accused is not negligent but intentional conduct, Robinson's contributory negligence, if any, is not an issue.
10. In California, comparative fault has replaced contributory negligence, which was a complete bar to recovery. The landmark case adopting and discussing comparative fault is Li v. Yellow Cab, 13 Cal.3d 804, 199 Cal. Rptr. 858 (1975).
11. Robinson could only reasonably believe that Louie, to Louie's own knowledge, was not infected. Louie could have been infected but not have known it. Failure to disclose in that circumstance would not be a breach of duty, since Louie could not be held to disclose something of which he had no knowledge.
12. Because Robinson and Louie's relationship was more than just a "one-night stand," there was some level of trust, at least to the extent that it was reasonable for Robinson to believe Louie when he said he was not HIV-positive. Nevertheless, the court does not find that they shared more trust and confidence than that, such as between spouses or others who share long-term and mutual commitments to one another.
13. Specifically, the Kerins court found that, using testing methods available as of August 1994, 99.8% of the people infected with the virus would test positive within the six month window. Kerins, 27 Cal. App. 4th at 1068 n.2.
14. It is worthwhile to note that since punitive damages focus on a defendant's reprehensible conduct rather than the plaintiff's contribution to the injury, punitive damages are generally not proportionately reduced by the plaintiff's contribution. 57B Am. Jur. 2d Negligence § 1176 (1989).
15. California Civil Code § 3294 reads in relevant part:
"(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defen