Case Number: 17STLC02342 Hearing Date: May 29, 2018 Dept: 94

Defendant Ralph A. Callender’s Demurrer to Plaintiff’s FAC is OVERRULED as to the first cause of action; and SUSTAINED as to the second cause of action without leave to amend.

Legal Standard

Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (CCP §589; Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal 3d 311, 318. No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading.

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769. And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. The burden is on the complainant to show the Court that a pleading can be amended successfully.

Discussion

1st Cause of Action for Breach of Contract

Defendant demurs to the first cause of action for breach of contract on grounds that it fails to state facts sufficient to constitute a cause of action against Defendants. (CCP §430.10 (e).)

It has been established that after overruling a demurrer to specified claims, a court is foreclosed from rendering a new determination on viability of claims upon plaintiff’s filing of new amended complaint unless some new facts or circumstances were brought to its attention, where new amended complaint did not amend those claims. (Bennett v. Suncloud (1997) 56 Cal.App.4th 91.)

On January 30, 2018, this Court overruled Defendant’s demurrer to Plaintiff’s breach of contract claim finding that the treatment plan constituted a contract pursuant to Civ. Code §1550. Further, the instant breach of contract claim is precisely identical to that alleged in Plaintiffs’ FAC.

Based on the foregoing, Defendant’s Demurrer is OVERRULED as to the first cause of action for breach of contract.

2nd Cause of Action for Negligence

Defendant demurs to the second cause of action for negligence as to Plaintiff Carmeishra on grounds that it fails to state facts sufficient to constitute a cause of action against Defendant, as Carmieshra lacks standing to bring a bystander NIED claim. (CCP §430.10 (e).)

There are three mandatory requirements for bystander NIED claims. “[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress – a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668 [footnotes omitted]; see CACI 1621.)

Defendant contends that Plaintiff Carmeishra has not pled and cannot establish that Defendant owed a duty of care to her personally. It has been established that in order to maintain a claim against a defendant, a party bringing suit must have suffered a concrete and actual injury in fact. (Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 480-81.) Here, the SAC specifically sets forth that Defendant treated Plaintiff Mayi Gorman, and not Plaintiff Carmeishra. (SAC, ¶BC-4.)

Defendant further contends that Plaintiff Carmieshra fails to allege that she suffered “serious emotional distress” to a degree that warrants bystander recovery, and only alleges that she suffered “undue stress” as a circumstance of the care and treatment Defendant provided Plaintiff Mayi. (SAC, ¶GN-1.)

In opposition, Plaintiffs contend that is should be sufficient that Plaintiff Carmieshra has cause to file a negligence action against a Defendant who she contracted with, and trusted to provide professional medical care to her minor daughter; that she was present during the Defendant’s negligent acts against her daughter; and that she experienced extreme stress as a result of the Defendant’s inappropriate acts.

In review of the foregoing, the Court finds that Plaintiff fails to allege severe emotional distress under the heightened standard of Thing.[1] The Court also finds that Plaintiff fails to establish the contemporaneous requirement under Thing. The second Thing requirement – that plaintiff was a percipient witness to the traumatic incident and was contemporaneously aware the event was causing injury to the victim – does not require visual perception of an impact on the victim. “A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative.” (Bird v. Saenz (2002) 28 Cal.4th 910, 916-917 [medical negligence]; Krouse v. Graham (1977) 19 Cal.3d 59, 76 [“sensory and contemporaneous observance” does not necessitate visual perception].)

In Bird, two events were identified by the California Supreme Court as potential injury-producing events: (1) a negligent transection of the victim’s artery during surgery; and (2) the subsequent negligence by the defendants in failing to diagnose and treat the damaged artery. (Bird, supra, at p. 917.) The court ruled that the plaintiffs could not recover NIED damages as a bystander for either event. With respect to the negligent transection, the plaintiffs were not present at, nor did they observe the injury-producing event. (Ibid.) As for the defendants’ subsequent negligence in failing to diagnose and treat the victim’s damaged artery, the plaintiffs did not, and could not, meaningfully perceive the defendants’ negligence because “[e]xcept in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.” (Ibid.) The court continued, “Even if plaintiffs believed, as they stated in their declarations, that their mother was bleeding to death, they had no reason to know that the care she was receiving to diagnose and correct the cause of the problem was inadequate. While they eventually became aware that one injury-producing event-the transected artery-had occurred, they had no basis for believing that another, subtler event was occurring in its wake.” (Ibid.)

Given the allegations in the instant matter, Plaintiffs lack a basis in establishing the requisite contemporaneous witness element under Thing and Bird. As such, Defendants’ Demurrer to the second cause of action is SUSTAINED without leave to amend.

[1] As explained in Thing, “[s]erious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.” (Thing, supra, 48 Cal.3d at p. 668 n. 12.) Jury instruction CACI 1621 states that, “Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame….’” (See Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 491.)