Schwarz v. Regents of University of California, B046516

• Decision Date: 13 December 1990
• Docket Number: No. B046516,B046516
• Citation: 276 Cal.Rptr. 470,226 Cal.App.3d 149
• Court: California Court of Appeals Court of Appeals
• Parties: Carl A. SCHWARZ, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Page 470

276 Cal.Rptr. 470

226 Cal.App.3d 149

Carl A. SCHWARZ, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

No. B046516.

Court of Appeal, Second District, Division 1, California.

Dec. 13, 1990.

Certified for Partial Publication ^*

Review Denied March 14, 1991.

[226 Cal.App.3d 151] Sharon Green, Sausalito, for plaintiff and appellant.

Bonne, Jones, Bridges, Mueller & O'Keefe, Los Angeles, Greines, Martin, Stein & Richland, Beverly Hills, Peter R. Osinoff, Los Angeles, Martin Stein and Roxanne Huddleston, Beverly Hills, for defendants and respondents.

SPENCER, Presiding Justice.

INTRODUCTION

Plaintiff Carl Schwarz appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer to the second amended complaint.

STATEMENT OF FACTS

In June 1982, plaintiff's son, Marlon, began therapy in the child outpatient department of the UCLA Medical Center Neuropsychiatric Institute. Marlon's primary problem was enuresis, or bedwetting. The treating therapist also noted that Marlon suffered from an adjustment disorder, and there was considerable family stress due to the parents' bitter divorce. Plaintiff agreed to pay for this therapy with the hope of improving Marlon's relationships with his parents. Marlon's parents had joint legal and physical custody of him, but at one point in his therapy the therapist informed the parents that joint physical custody was not in Marlon's best interests. At the recommendation of the therapist, plaintiff allowed Marlon to live solely with his mother.

Periodically in the course of Marlon's therapy, his parents met with his therapist, either jointly or singly, to assist in Marlon's therapy. In addition, plaintiff agreed to undergo individual psychotherapy. In July 1984, Marlon's therapy was assigned to Dr. James Sparing; Dr. Sparing treated Marlon for the next year. Shortly after Marlon began therapy with Dr. Sparing, plaintiff asked for a reevaluation of Marlon's living arrangements. After meeting with both of Marlon's parents, Dr. Sparing recommended that no change be made, and none was made.

At some time in July 1985, Marlon's mother advised Dr. Sparing that she was moving with Marlon to London in an effort to free them from plaintiff's harassment; she did not wish plaintiff to know their whereabouts. Dr. Sparing counselled, aided, encouraged, assisted and facilitated Marlon's mother in implementing her plan to remove Marlon from the country and conceal his whereabouts from plaintiff. He similarly counselled Marlon that this was the "thing to do." Dr. Sparing discussed the move with Marlon; although Marlon had some ambivalence about the move, he believed it was the best thing to do. He was, however, concerned about having to lie to his father to prevent him from learning about the move.

After a prolonged search, plaintiff learned in March 1987 that Marlon was residing in England. Thereafter, plaintiff unsuccessfully attempted to gain custody of Marlon. During these proceedings, plaintiff learned Dr. Sparing had been aware of the planned move to England. Dr. Sparing knew Marlon's parents had joint physical and legal custody of him, but had deliberately concealed his knowledge of Marlon's whereabouts.

When plaintiff discovered Dr. Sparing's role, he was shocked and anguished. By assisting in the removal of Marlon from California, Dr. Sparing disrupted the family relationships. As a consequence, plaintiff suffered severe emotional injuries.

CONTENTIONS

I

Plaintiff contends the trial court erred in sustaining his demurrer without leave to amend, in that he has alleged facts sufficient to state a cause of action for the negligent infliction of emotional distress.

II-IV ^**

DISCUSSION

In reviewing an order sustaining a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication are deemed true. (Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828, 122 Cal.Rptr. 745, 537 P.2d 865.) A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect in the complaint can be cured by amendment. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118, 113 Cal.Rptr. 102, 520 P.2d 726; Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817; Kite v. Campbell (1983) 142 Cal.App.3d 793, 804, 191 Cal.Rptr. 363.) The demurrer should be sustained and leave to amend denied only "where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but, under the substantive law, no liability exists. Obviously no amendment would change the result." (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 945, p. 379.)

I

Plaintiff contends the trial court erred in sustaining his demurrer without leave to amend, in that he has alleged facts sufficient to state a cause of action for the negligent infliction of emotional distress. We disagree.

There is no independent action for the negligent infliction of emotional distress; it is simply one species of negligence. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278.) Thus, to state a cause of action, the facts alleged must show a legal duty of care, its breach, causation and resulting injury. (Ibid.) " 'Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.' [Citation.]" (Ibid.)

Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 enunciated a then-novel negligence theory permitting the recovery of damages when the plaintiff had suffered no physical injury in the usual sense, but had, as a consequence of observing the injury of a third person through the negligent acts of another, suffered emotional distress sufficiently severe that its physical manifestations were observable. In Dillon, the court considered the reasonable foreseeability that the plaintiff would suffer such emotional distress to be the primary factor in determining whether the defendant owed a duty of care to the plaintiff. (Id. at p. 740, 69 Cal.Rptr. 72, 441 P.2d 912.) To meet various policy concerns implicated in imposing a duty of care in such circumstances, the court established three general guidelines for assessing the foreseeability of purely emotional injury, based on the facts before it. The court considered the following factors to be of high importance: (1) whether the plaintiff was located at or near the scene of the accident, (2) whether the victim and the plaintiff are closely related, and (3) whether the shock resulted from the direct emotional impact on the plaintiff from the sensory and contemporaneous observation of the injury to the victim. (Id. at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

Over the years, the theory expanded to suggest the plaintiff need not directly and visually observe the event which results in injury or death to the victim, but may sensorily perceive the fact of injury in other ways. (See, e.g., Krouse v. Graham (1977) 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022; but see Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 523, 150 Cal.Rptr. 1, 585 P.2d 851.) For some time, however, the courts held to the belief that the defendant's conduct must result in an "accident," i.e., a sudden and brief occurrence. This limitation fell by the wayside in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1. In Ochoa, the Supreme Court expressly rejected such a limitation, permitting a claim for emotional distress suffered upon observing the defendants' medical neglect of the plaintiff's son and his consequent, but rather gradual, deterioration. The court stated: "[W]hen there is observation of the defendant's conduct and the child's injury and contemporaneous awareness the defendant's conduct or lack thereof is causing the harm to the child, recovery is permitted." (Id. at p. 170, 216 Cal.Rptr. 661, 703 P.2d 1.)

In the interim, Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 appeared to develop a parallel theory of recovery on the basis that the plaintiff was a "direct victim" of the defendant's negligence. In Molien, the Supreme Court held the defendants owed a duty directly to the husband of the patient as a result of misdiagnosing the wife as suffering from a sexually transmitted disease, directing the wife to so inform her husband and to have him come in for examination. On these facts, the court reasoned it not only was foreseeable that the husband would suffer emotional distress, but the defendants' conduct actually was directed at the husband as well as the wife patient. (Id. at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813.) The court drew an express distinction between the status of the plaintiff in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, who suffered injury solely from witnessing the infliction of injury on her child and thus was a "bystander," and the status of the husband as a "direct victim." (Molien, supra, 27 Cal.3d at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813.)

After the decision in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, the imposition of a duty of care under the theory developed in that case was defined as arising when "the defendant's negligence is foreseeably directed toward the person asserting a claim for emotional distress." (Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 587, 195 Cal.Rptr. 902, emphasis added.) While the Supreme Court seemed to deemphasize the defendant's intent in favor of emphasizing the foreseeability of the emotional injury in Hedlund v. Superior Court (1983) 34 Cal.3d 695, 194 Cal.Rptr. 805, ...