Ko v. Maxim Healthcare Servs., Inc.

58 Cal.App.5th 1144

272 Cal.Rptr.3d 906

Dyana KO et al., Plaintiffs and Appellants,

v.MAXIM HEALTHCARE SERVICES, INC., et al., Defendants and Respondents.

B293672

Court of Appeal, Second District, Division 7, California.

Filed December 23, 2020

As Modified January 14, 2021

Law Offices of Steven P. Chang, Steven P. Chang, Gene H. Shioda, Los Angeles, and Heidi M. Cheng, Alhambra, for Plaintiffs and Appellants.

Lewis Brisbois Bisgaard & Smith, Jeffrey A. Miller, Palo Alto, Wendy S. Dowse, Los Angeles, Matthew S. Pascale, and Vijay J. Patèl for Defendant and Respondent Maxim Healthcare Services, Inc.

Beach Cowdrey Jenkins, Sean D. Cowdrey, Oxnard, and Darryl C. Hottinger for Defendant and Respondent Thelma Manalastas.

FEUER, J.

Dyana and Christopher Ko¹ appeal from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrers filed by defendants Maxim Healthcare Services, Inc. (Maxim), and Thelma Manalastas to the Kos’ third amended complaint. The Kos brought claims for negligence and negligent infliction of emotional distress (NIED) alleging Manalastas, a vocational nurse employed by Maxim who worked as an in-home caregiver for the Kos’ disabled son Landon, abused Landon while the Kos were out of the house. The Kos allege they witnessed Manalastas abuse Landon in real time as they watched the livestream of video and audio on Dyana's smartphone from a "nanny cam" in the home.² The trial court ruled the Kos could not state a cause of action for NIED because they were not physically present when Landon was abused, and thus they could not satisfy the requirement established by the Supreme Court in Thing v. La Chusa (1989) 48 Cal.3d 644, 668, 257 Cal.Rptr. 865, 771 P.2d 814 ( Thing ) that to recover on an NIED claim, a bystander plaintiff must be "present at the scene of the injury-producing event at the time it occurs and ... then aware that it is causing injury to the victim."

On appeal the Kos contend their "virtual presence" during Landon's abuse through a real-time audiovisual connection satisfies the requirement in Thing of contemporaneous presence. We agree. In the three decades since the Supreme Court decided Thing , technology for virtual presence has developed dramatically, such that it is now common for families to experience events as they unfold through the livestreaming of video and audio. Recognition of an NIED claim where a person uses modern technology to contemporaneously perceive an event causing injury to a close family member is consistent with the Supreme Court's requirements for NIED liability and the court's desire to establish a bright-line test for bystander recovery.

We reverse the judgment of dismissal and remand for further proceedings.³

FACTUAL AND PROCEDURAL BACKGROUND

A. The Incident

In April 2017 Landon was two years old and had a genetic disorder called Rubinstein-Taybi Syndrome.⁴ Landon suffered from a number of health problems associated with the disorder, including blindness in one eye, an inability to walk, difficulty hearing, severe developmental delays, and the need for a feeding tube. Landon required constant care and supervision. The Kos, both of whom worked, had two other children, and they hired Maxim to provide in-home caretaking services for Landon for when they were at work or otherwise unavailable. Manalastas was a California licensed vocational nurse employed by Maxim who was one of the caregivers Maxim provided to the Kos. Manalastas was a caregiver for Landon for more than a year prior to the incident. The Kos alleged on information and belief that Manalastas had a criminal record and Maxim failed to perform an adequate background check on her.

On April 22, 2017 the Kos took their two older children to a youth basketball tournament. During the tournament Dyana "opened a phone application that allows her to live-stream video and audio from her home that is being shot in real time on a ‘nanny cam.’ " Thereafter, the Kos "watched and heard in shock and horror, while the incident was happening in real time, as ... Manalastas physically assaulted Landon by acts including hitting, slapping, pinching and shaking Landon in a violent manner." The Kos called 911 to report the abuse, and police officers were dispatched to the Kos’ residence. The Kos drove home and showed the police officers video of Manalastas abusing Landon, leading to Manalastas's arrest. Dyana reported the abuse to Maxim, which reassigned Manalastas but did not terminate her.

The Kos allege on information and belief that Manalastas's abuse caused Landon to have one of his eyes surgically removed and other physical injuries. Landon passed away on April 24, 2018, during the pendency of this action.

B. Procedural History

The Kos filed this action on June 21, 2017 alleging on behalf of Landon claims for battery, assault, and negligence, and a claim for NIED on behalf of the Kos. After Landon passed away, the court granted the Kos leave to file a third amended complaint realleging the first two causes of actions for battery and assault as survivor claims on behalf of Landon's estate, the third cause of action for negligence on behalf of the Kos and Landon's estate, and their fourth cause of action for NIED. On June 21, 2018 the Kos filed the operative third amended complaint.

Maxim demurred to the fourth cause of action for NIED, and it filed a motion to strike all references to general damages and pain and suffering in the survivor causes of action pursuant to Code of Civil Procedure section 377.34.⁵ Manalastas demurred to the causes of action for NIED and negligence, and, similar to Maxim, moved to strike the allegations of Landon's pain and suffering.

After hearing argument, the trial court sustained Maxim's and Manalastas's demurrers and granted their motions to strike. The court found with respect to the Kos’ fourth cause of action for NIED, citing to Thing, supra , 48 Cal.3d at page 668, 257 Cal.Rptr. 865, 771 P.2d 814, that "it is required to follow existing case law, which provides that NIED bystander liability is limited to circumstances where a plaintiff is physically ‘present at the scene of the injury producing event at the time it occurs.’ " The court noted the "appellate courts have not defined what it means to be ‘present at the scene’ or the parameters of this element," and "[i]t is unclear how existing case law on NIED applies to existing technology, such as live-streaming video and audio on smart phones," but the "cases upholding NIED liability have only involved plaintiffs with some physical proximity to the injury-producing event at the time it occurred." The court suggested "[o]ne approach might be to deem [the presence] element satisfied as long as a plaintiff can show that he or she contemporaneously observed an injury-producing event at the time it occurred," but the court concluded "it is not this court's role to change, but instead to follow, existing law as stated by the California Supreme Court and the Court of Appeal." The court denied leave to amend, finding the Kos had failed to show how they could amend the complaint to state an NIED claim. The court also sustained without leave to amend Manalastas's demurrer to the third cause of action for negligence, finding Manalastas did not owe a duty to the Kos and the claim was merged into the Kos’ NIED cause of action.

On August 28, 2018 the trial court entered an order sustaining without leave to amend defendants’ demurrers to the fourth cause of action for NIED and Manalastas's demurrer to the Kos’ third cause of action for negligence and granting the motions to strike. On November 2, 2018 the Kos filed a notice of appeal from a "[j]udgment of dismissal after an order sustaining a demurrer" and an order "[d]ismissing Plaintiffs’ individual causes of action for negligence and/or negligent infliction of emotional distress." However the trial court had not yet entered a judgment or order of dismissal.

On November 10, 2020, at the request of the Kos, the clerk entered a dismissal without prejudice of their remaining third cause of action for negligence against Maxim. On the same date the trial court entered a judgment in favor of Maxim and Manalastas on the Kos’ fourth cause of action for NIED and in favor of Manalastas on the Kos’ third cause of action for negligence.⁶ We consider the Kos’ premature notice of appeal a valid "notice of appeal filed after judgment is rendered but before it is entered," and treat the notice as filed immediately after entry of judgment. ( Cal. Rules of Court, rule 8.104(d)(1) ; see Valdez v. Seidner-Miller, Inc . (2019) 33 Cal.App.5th 600, 607, 245 Cal.Rptr.3d 268.)

DISCUSSION

A. Standard of Review

"In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] Where the demurrer was sustained without leave to amend, we consider whether the plaintiff could cure the defect by an amendment." ( T.H. v. Novartis Pharmaceuticals Corp . (2017) 4 Cal.5th 145, 162, 226 Cal.Rptr.3d 336, 407 P.3d 18 ; accord, Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc . (2016) 1 Cal.5th 994, 1010, 209 Cal.Rptr.3d 280, 382 P.3d 1116.) "In making this determination, we must accept the facts pleaded as true and give the complaint a reasonable interpretation." ( Mathews v. Becerra (2019) 8 Cal.5th 756, 762, 257 Cal.Rptr.3d 2, 455 P.3d 277 ; accord, Lee v. Hanley (2015) 61 Cal.4th 1225, 1230, 191 Cal.Rptr.3d 536, 354 P.3d 334.) "A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground." ( Carman v. Alvord (1982) 31 Cal.3d 318, 324, 182 Cal.Rptr. 506, 644 P.2d 192 ; accord, Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 992, 268 Cal.Rptr.3d 836.)

A trial court abuses its discretion by sustaining a demurrer...