Veterinarian may be liable for intentional infliction of emotional distress for fraudulent treatment of pet (Berry v. Frazier)

 

In California, a plaintiff may plead fraud and intentional infliction of emotional distress against a D.V.M. for the botched euthanasia of a pet and thus may state a claim for punitive damages 

In Berry v. Frazier (May 15, 2023) A164168, plaintiff engaged a service to provide humane in-home euthanasia of her cat.  This service in turn engaged defendant Frazier, a Doctor of Veterinarian Medicine, who ultimately ended up utilizing an intracardiac injection, allegedly without anesthesia, upon plaintiff’s feline.  As the doctor allegedly said, this was because an overdose of medication would “take too long:” 

Frazier and an assistant arrived at Berry’s home in the late afternoon. The euthanasia was to take place in the backyard, where Frazier and his assistant prepared the cat for the insertion of a catheter. During this initial attempt to sedate the cat, Frazier told Kraus and Berry [the owners of the cat], “ ‘Go over there,’ ’’ indicating they should move 30 feet away. They complied, and waited for Frazier to indicate when they could return. After a few moments, Frazier told them that he was unable to place the catheter even though he had tried to do so in all the cat’s limbs. Berry and Kraus became upset and Kraus suggested an overdose of an oral medication (buprenorphine) that had been prescribed for the cat. Frazier responded that it would “ ‘take too long,’ ” but did not explain how long or why the length of time was significant. 

Frazier then suggested euthanasia by “ ‘heart stick’ ” injection, the colloquial term for intracardiac injection, a procedure by which fluid is injected directly into the heart. When Kraus said he had never heard of the procedure, Frazier responded, in a calm and reassuring demeanor, with comments like, “ ‘[i]t’s a small needle,’ ” “ ‘it’s very quick,’ ” and the cat will “ ‘never know what’s happening’ ” and “ ‘won’t feel a thing.’ ” When Berry became emotional, Frazier again calmly described the procedure, adding phrases along the lines of “ ‘it’s the right thing.’ ” Based on Frazier’s representations and in reliance on Frazier’s expertise, Berry consented. Frazier then instructed Berry and Kraus to go inside the house, which they did. Frazier and his assistant completed the procedure and left with the cat.

Berry later learned of the “horrors” of using an intracardiac injection to euthanize a conscious cat. Contrary to Frazier’s representations, it was

“ ‘extremely painful’ ” and generally considered “ ‘inhumane’ ” when performed on a conscious cat. [Footnotes omitted.] (Id., pp. 3-4.)

Berry sued, alleging causes of action for 1) breach of fiduciary duty, 2) conversion of chattel, 3) trespass to chattel, 4) “fraud/deceit /intentional misrepresentation,” 5) intentional infliction of emotional distress, and 6) violation of Civil Code section 3340.  She also alleged entitlement to punitive or exemplary damages.  The trial court sustained the defendant doctor’s demurrer to the second through sixth causes of action and plaintiff dismissed the sole remaining cause of action.  The Hon. Ethan P. Schulman of the San Francisco County Superior Court then denied the motion to strike portions of the complaint, including the request for punitive damages, as moot. 

Judgment was then entered for the defendant and plaintiff appealed.  The California Cout of Appeal for the First District, Division Three, found the appeal from the judgment timely and proper, citing Abatti v. Imperial Irrigation Dist. (2012) 205 Cal. App. 4th 650, at 655.  Specifically, there were no portions of the complaint still pending and the parties had not stipulated to further litigate any claims.  At the same time, the appellate court dismissed the purported appeal from the Motion to Strike ruling as being made from a non-appealable order and not a final judgment. 

Plaintiff properly pled trespass and conversion of chattel

The Berry court rejected the defense claim that there could be no claims for conversion or trespass because the facts merely alleged “professional negligence.”  As the appellate court explained, such defense arguments “ignore the specific allegations that Berry had a legally protectable right to decide the time and manner of the euthanasia of her cat because the cat was her personal property.” (Berry, p. 16.) 

Plaintiff also properly pled intentional infliction of emotional distress and fraud based upon facts showing an intentional misrepresentation

Defendant also argued plaintiff could not state a claim for intentional infliction of emotional distress under her third cause of action, citing McMahon v. Craig (2009) 176 Cal. App. 4th 1502.)  In McMahon, plaintiff plead intentional infliction of emotional distress resulting from malpractice which caused the death of the plaintiff’s dog.  McMahon held the pet’s owner was not entitled to damages for loss of companionship and related emotional distress, as such a claim is not recognized by California law:

We recognize the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog. But given California law does not allow parents to recover for the loss of companionship of their children, we are constrained not to allow a pet owner to recover for loss of the companionship of a pet. (McMahon, pp. 1519–1520.)

Berry, however, did not find McMahon dispositive, explaining that liability in McMahon was limited because it involved the measure of damages for professional malpractice.  Here, by contrast, plaintiff alleged not only fraud but also trespass to personal property:

In McMahon, the plaintiff alleged defendants engaged in negligent veterinary malpractice and lied to her to cover up their malpractice. (Id. at p. 1506.) While the complaint included a cause of action for conversion, McMahon did not address that cause of action in resolving the appeal. (Id. at pp. 1508– 1520.) Nor did the McMahon court address a cause of action for trespass to chattels. (See Plotnick, supra, 208 Cal.App.4th at p. 1606 [court held plaintiff could recover emotional distress damages for trespass to chattels cause of action, finding McMahon was inapposite as it “did not involve an action for trespass to personal property”].) (Id., pp. 14-15.) 

The First District further explained McMahon was inapposite because it did not involve a claim for fraud.  In stark contrast, here plaintiff alleged Dr. Frazier made an intentional misrepresentation to her.  Therefore, his actions were directed toward plaintiff Berry and not merely her animal:

In urging that Berry’s claimed loss (her right to “ ‘give the cat a good death’ ”) is not actionable because Berry was not the subject or beneficiary of the veterinary care, Frazier asks us to consider McMahon v. Craig (2009) 176 Cal.App.4th 1502 (McMahon) at page 1510: “[A]lthough a veterinarian is hired by the owner of the pet, the veterinarian’s medical care is directed only to the pet. Thus, a veterinarian’s malpractice does not directly harm the owner in a manner creating liability for emotional distress.” McMahon is inapposite as that court was not concerned with, and therefore had no occasion to address, the nature of damages that could be recovered for a claim of fraud based not on a veterinarian’s malpractice but rather on intentional misrepresentations made to induce a pet owner to consent to an unnecessary, unjustified, and painful procedure. [Citation.] (Id., p. 12; emphasis added.)

Plaintiff could not state a separate cause for action based upon Civil Code section 3340, though this statute could be the basis for a claim for punitive damages

The Berry court termed section 3340 “broadly-worded.” This section provides for punitive damages for “willful” and “inhumane” injury to animals and states in full:

For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.

According to Berry, this section remains valid and relevant, but it does not support a separate cause of action.  Rather, it permits an award of punitive damages where a plaintiff proves its elements.  In other words, section 3340 may be the basis for punitive damages to be pled as part of the damages in other causes of action.

More importantly, Berry held that this section may support a claim for punitive damages independent of such a claim being made under Civil Code section 3294.  This latter section sets forth the basis for punitive damages in California and requires a plaintiff prove such by way of “clear and convincing evidence.”  Section 3294 also defines the “malice, oppression, and fraud” necessary to state a claim for punitive damages.  

However, as Berry explained, the procedural safeguards found in section 3294 do not apply to a claim for punitive damages under section 3340, which, as quoted above, applies where there has been an injury to an animal “in disregard of humanity.”  In holding each section could be read independently of the other, Berry aptly noted sections 3294 and 3340 were both enacted in 1874.  While the legislature has amended section 3294 multiple times over the years, it has not made similar changes to section 3340 despite the opportunity to do so. 

Advice for practitioners defending or prosecuting claims for injuries to animals

In summary, Berry overturned the judgment in favor of the defendant and remanded the matter back to the trial court.  Plaintiff was to be given an opportunity to amend her complaint to attempt to state a claim for punitive damages under section 3340 as to any remaining causes of action.

Counsel for plaintiffs are therefore advised to consider whether, under a cause of action involving a claim for injury to an animal which may be considered “inhumane,” they may claim punitive damages under either, or both, section 3340 (for injuries to animals “in disregard of humanity”) or section 3284 (for “malice, oppression, or fraud”).  

Defendants should, of course, be prepared to test the applicability and scope of these allegations by way of demurrer and/or motion to strike.  They should be aware that while section 3340 may provide the basis for a claim for punitive damages, it should not be pled as a separate cause of action.

Depending on the facts pled, a defendant may also wish to make public policy arguments in presenting their defense.  On the one hand, public policy supports discouraging any licensed professional from making fraudulent misrepresentations.  On the other hand, the doctor in Berry was likely paid only a modest fee for his services, being in turn hired by the service plaintiff engage.  Moreover, even plaintiff admitted the doctor attempted to use a catheter before pivoting to the injection plaintiff alleges was inhumane.  Despite this, the defendant doctor now faces potentially ruinous liability, given that any award of punitive damages is uninsurable. (See Insurance Code section 533 prohibiting the insurability of claims based upon intentional conduct.)  Therefore, California public policy may not favor making it riskier for a veterinarian to attempt at-home euthanasia of a pet. 

1 - For a discussion of negligent versus intentional infliction of emotional distress, see our discussion of (Downey v. City of Riverside (April 26, 2023) D080377.

California landowner owes a duty of due care to tenant falling off roof attempting to enter premises after being locked-out (Razoumovitch v. Hudson Ave. LLC)

A landowner owes a broad duty of due care to almost anyone else, no matter the circumstances, unless California public policy clearly dictates a reason to depart from this broad rule

In California, Civil Code section 1714(a) defines the duty of due care owed in a broad fashion, failing to limit the persons to whom the duty is owed.  Rather, this section states vaguely that “everyone” owes a duty of due care “to another:” 

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

However, in the landmark case of Rowland v. Christian (1968) 69 Cal. 2d 108, the Supreme Court held that not all persons owe a duty of due care to all other persons in all circumstances.  As the Supreme Court explained 43 years later, Rowland provides there are several considerations which, when balanced by the court, may justify an exception to the general duty of reasonable care embodied in section 1714. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764.)  As Cabral set forth, these considerations, sometimes called the “Rowland factors” include: 

. . . [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Id., p. 771.)

According to Cabral, courts only balance the landmark “Rowland factors” and consider whether or not a duty of due care is owed where there are clear “public policy reasons” for doing.  This is because “in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ [Citations.]” (Cabral, 51 Cal. 4th at 771, quoting Rowland, 69 Cal. 2d at 112.)  Indeed, Cabral teaches that under any Rowland analysis of duty:

. . . [T]he Rowland factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, we have explained that the court's task in determining duty ‘is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed. . . . (Cabral, 51 Cal. 4th at 772.)

This broad formulation of duty has led California courts to effectively foreclose the ability of landowners who, by any measure of common sense, should not be held liable to have their case dismissed before trial.  This is so despite the obvious misbehavior of the plaintiff in causing the harm.  In other words, landowners must now defend actions where the actions of the plaintiff are indefensible because they cannot obtain summary judgment by making a “no duty” argument.  

As but one example, in Razoumovitch v. Hudson Ave. LLC (May 12, 2023) B316606, the Second District, Division Seven [1], issued an opinion holding a tenant who accesses a roof area after being locked out of their apartment is owed a “duty of care” by their landlord.  This is true even where the roof area is not designed to be accessed by tenants. [2]

Raasomovitch was injured while trying to break into his own residence and appeals after his landlord is granted summary judgment

There is no doubt Rasomvitch was on the roof not due to any invitation, whether express or implied, but, instead, because he needed to circumvent the locked door and find a more unusual method of entering the premises:

Razoumovitch explained [at deposition] he and two roommates lived on the top floor of their four-story apartment building, in a unit with a balcony. On the night of his fall, Razoumovitch and one of his roommates, Gonzalo Pugnaire, returned to the apartment at 1:30 a.m. after having drinks at a bar and discovered they had locked their keys in the apartment. 

Their third roommate was either not home or not responding to their attempts to get his attention. After repeatedly trying without success to reach the off-site building manager, Razoumovitch and Pugnaire went to the roof of the building where, attempting to enter their apartment through the balcony, Razoumovitch lowered himself over the edge of the roof, so that he hung from the edge with his feet dangling in the air. After inching his way along (what counsel for the 726 Hudson defendants called) a “roof outcropping” where he hung at an uncertain distance above his balcony, Razoumovitch attempted to drop onto the balcony’s thick masonry wall. On landing there, however, he lost his balance and fell. Asked if there was any emergency circumstance requiring him to get into his apartment, Razoumovitch answered, “Well, it was just needing to be home and, you know, have a place to sleep.” The 726 Hudson defendants asserted Razoumovitch admitted “there was no emergency or pressing need for him to immediately access his apartment that night . . . . (Id., pp. 3-4.)

Razoumovitch argued the landlord should have restricted his access to the roof, which access was made necessary, of course, because Razoumovitch had been locked out of his apartment.  Said plaintiff would not utilize the services of a locksmith or wait until the daytime when the landlord could be contacted; in fact, he insisted on attempting to enter the apartment by way of dangling from the roof and then argued the landlord should have “warned” him this was dangerous:

[Razoumovitch] alleged the defendants “were responsible for creating the dangerous condition that caused [his] injuries” and failed to warn him of any dangerous condition. Specifically, he alleged they had not sufficiently restricted access to the building’s roof, had not placed sufficient barriers around the roof’s perimeter, and had not placed an alarm or other device on the roof-access door that would have warned them that someone was accessing the roof. (Id., p. 2.)

The Hon. Audra Mori of the Los Angeles County Superior Court granted a motion for summary judgment brought by the defendant landowners.  Plaintiff appealed, and Justices Segal and his colleagues in the Second District reversed.

Public policy does not indicate there should be an exception to the rule a landowner owes a duty even though the tenant was on the roof without the encouragement of his landlord

Razoumovitch noted the defense had attempted to apply the analysis of duty to the specific facts of the case, an approach no doubt followed by many other jurisdictions and one which might appear to be the approach most logical.  The Second District, however, characterized this as a “mistake” and found these specific facts not dispositive.  Rather, according to its reading of Cabral and Rowland, a court should instead “consider whether carving out an entire category of cases from that general duty rule is justified by clear considerations of [public] policy. (Razoumovitch, p. 14, citing to T. L. v. City Ambulance (2022) 83 Cal. App. 5th 864, at 876.)  Razoumovitch did not, however, sufficiently discuss how one would decide whether the facts here — a tenant who is locked out making a foolish attempt to enter an apartment via the roof — fall within one “category of cases.”  In other words, how may one distinguish between a class of cases where a duty is owed versus another category, where a duty is not, without considering the “specific facts” of that case.

Razoumovitch thus concluded the general duty of due care applied here because the defense had not shown there were clear public policy considerations that indicated otherwise.  While the Second District did discuss and distinguish other case law cited by the defense it did not discuss in any real detail California public policy vis a vis the bizarre behavior of the plaintiff.  All of the following appear to indicate that a logical and fair consideration of public policy does not favor permitting recovery by a plaintiff such as Razoumovitch:

• Plaintiff caused this situation because he became locked out of his apartment

• The landlord gave no encouragement to use the roof area in question

• There is no indication the landlord has promised to provide 24-hour “lockout service” or, for that matter, that plaintiff paid for such as part of his rent
• There may have been other roommates in the apartment at the time plaintiff attempted to enter
• Plaintiff had been drinking at the time of the incident
• Despite this, plaintiff attempted, late at night, a move that required him to lower himself from the roof and then dangle his feet in the air

Razoumovitch did discuss the oft-cited proposition that someone is not owned a duty of due in regards to warning of an obvious defect.  But the court also noted this rule has a crucial exception and does not apply where the injury is “foreseeable” because the plaintiff has a “necessity” to encounter the harm. (Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, at 673.)  Of course, it may be obvious why this exception for the necessity to encouter an obvious danger should not apply to Razoumovitch, as he admitted there was no medical, safety, or pending emergency requiring him to enter the apartment and, therefore, he could have spent the night anywhere else he chose.  Still, the Razoumovitch court somehow found Kinsman, where the plaintiff was exposed to asbestos while working at an oil refinery facility, relevant as to whether a duty was owed to warn Razoumovitch of the obvious danger from the roof.  The Second District therefore tersely stated the defendants “do not address this exception to the general rule that a landowner has no duty to remedy or warn of an obvious danger” and found the defendants owed plaintiff a duty of due care. (Razoumovitch, p. 17.)

The appellate court also held defendants had not shown they were entitled to summary judgment on the grounds they were not the proximate cause of the harm

Razoumovitch also discussed the defense argument that they were not the “proximate cause” of the harm because the injury was not “foreseeable.”  Of course, proximate cause is ordinarily considered a legal issue, this prong of caution being distinguished from “cause in fact,” which requires consideration of disputed facts.  Nevertheless, Razoumovitch found that here the issue of proximate cause could not be decided as a matter of law “on the record here,” noting at page 19 that it may have been ”necessary” for plaintiff to attempt to access his balcony by way of the roof:

. . . [E]vidence regarding the proximity of Razoumovitch’s balcony to the edge of the roof and the evidence tending to show at least some degree of practical necessity for entering his apartment through the balcony, causation was a factual issue. [3]

1 -The opinion by Justice Segal was joined by Justices Perluss and Feuer 

2 - One could imagine a rooftop area developed for the use of tenants, but there here was no allegation there was a rooftop garden or deck designed for relaxation or recreation

3 - While the court did not expressly adopt a rule a landlord owes a duty to provide a “lockout” service at all times, the fact the court mentioned this argument multiple times shows some at least sympathy for the situation plaintiff caused for himself.

Condo tenant owes no duty to visitors to remedy defect in common area (Moses v. McKeever)

 

Appellate court rejects claim tenant owes a duty to visitors because they have “implied control” over the porch owned by the homeowner association

The First District has held a tenant who does not have express control over the common area in a condominium association does not have a duty to either maintain this area or warn his invitees of any defective or dangerous condition. (Moses v. McKeever (May 5, 2023) A164405,)  As Justice Swope explained, the scope of the duty owed by a tenant as to common areas was dispositive and plaintiff Moses therefore could not state a claim for negligence.  In summary, Moses found the defendant tenant was entitled to summary judgment as to the entire complaint.

Plaintiff brought her claim after she fell while leaving the defendant’s residence:

. . . [Plaintiff] Moses provided her declaration stating that, upon her arrival to Roger-McKeever’s condominium, she mentioned to Roger-McKeever that the entryway was dark. Roger-McKeever acknowledged the issue and “was apologetic indicating that there was an electrical problem with the porch light.” According to Moses’s declaration, Roger-McKeever explained that her landlord had not been responsive in repairing the light. A photograph attached to the declaration depicted three steps leading up and away from a street sidewalk and to a short walkway that ended at a door to Roger- McKeever’s condominium (the entryway or walkway). Moses stated in her declaration that when she was leaving the condominium, she was not able to see the second step and lost her footing and fell. She also provided a declaration from a mechanical engineer, who opined that the steps were “grossly” out of compliance with applicable building code, and that the absence of a handrail and the riser heights of the steps were probable causes of the accident. (Moses, p. 3.)

Defendant maintained that, as a tenant, he had no duty to control the area outside his leased premises, especially as the lease gave him responsibility for maintaining any area outside the actual unit.  The trial court granted summary judgment in his favor and plaintiff appealed.  The appellate court upheld the judgment in favor of the defendant/tenant. [1]

  

Specifically, Moses found that a tenant whose lease gives neither the right nor responsibility to maintain a “common area” does not owe a duty to prevent or warn regarding any dangerous conditions over which the tenant has no control.  This is true even as to someone  invited to the premises, such as plaintiff.

  

Even under the most expansive view of duty, some sort of "control" of the premises is necessary to impose liability

Moses distinguished prior case law such as Alcarez v. Vece (1997) 14 Cal. 4^th 1149.  While ownership certainly is an indicia of control, lack of ownership does not absolve a defendant of responsibility for areas which over which they may exercise at least some control.  Plaintiff Alcarez fell upon a landscaped area whose ownership was unclear; however, whether or not the defendant owned this area or not, he owned the land adjoining this area.  Justice George wrote for a four to three majority which found an adjoining landowner potentially liable for a slip and fall despite lack of clear ownership where the landowner’s agents mowed the lawn and otherwise may have had some sort of “control” over this area.

  

Alcarez, of course, has led to a plethora of attempts by the plaintiffs’ bar to expand liability to include adjoining landowners to situations that are, under any logical analysis, patently unfair.  Indeed, Alcarez is often cited as providing for liability so expansive such includes not only the actual landowner but also someone who owns or maintains the premises adjacent to the area where plaintiff suffers harm. [2]

 

Unfortunately, trial courts often take this gambit and cite to Alcarez as a reason to not give full consideration to an adjoining tenant or landowner’s request for summary judgment, misreading Alcarez as providing for at least potential liability merely because the maintenance of one property might somehow spill over to the adjoining premises.  This includes, for example, landscape maintenance extending just beyond the property line.  This is so despite the fact Alcarez said:

. . . [T]he simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. (14 Cal. 4th at 1167.)

  

The problem, of course, is that in Alcarez the Supreme Court undermined this limitation by immediately adding, “[b]ut it cannot be doubted that such evidence is relevant on the issue of control,” strongly implying that whether such “neighborly maintenance” constitutes “control” is a factual issue. (Id.)  This in turn means a landowner foolish enough to tempt liability by performing such a neighborly act must therefore undergo the time and expense of a trial simply because they have performed a good deed and therefore cannot obtain dismissal by a motion for summary judgment. 

However, in Moses the Hon. Delbert C. Gee of the Alameda County Superior Court did not agree with plaintiff’s overly-broad interpretation of Alcarez. The appellate court unanimously affirmed the grant of summary judgment, readily distinguishing Alcarez and the other case law cited by the plaintiff.  Moses makes clear that any liability based upon Alcarez still requires the plaintiff show the crucial element of control. 

 

Therefore, contrary to what plaintiff argued, Moses held the possibility the defendant could have prevented the harm on the adjoining area controlled by another is not sufficient to impose liability:

To establish a duty of care under Alcaraz, it is insufficient to speculate that Roger-McKeever could have taken certain actions to prevent injury to Moses without showing that Roger-McKeever had actual control over the area where the injury occurred. “The mere possibility of influencing or affecting the condition of property owned or possessed by others does not constitute ‘control’ of such property.” (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725–726.) To hold otherwise would undermine the general rule that a defendant is not liable for failing to protect the potential victim if he or she did not contribute to creating the risk. (Brown v. USA Taekwondo, supra, 11 Cal.5th at p. 214.) (Moses, p. 12.)

Moses rejected the idea inviting plaintiff meant the defendant "impliedly adopted" the area where plaintiff fell

Given that plaintiff could show no actual  control over the common-area plaintiff stressed that the circumstances showed “implied” control:

Moses’s primary argument is that despite Roger-McKeever’s lack of control over that area, Roger-McKeever owed her a duty of care because Roger-McKeever “impliedly adopted” the walkway by inviting Moses to her condominium. (Moses, p. 11.)

Moses therefore considered Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal. App. 5th 843, which had found that where a contractor had “impliedly adopted” the premises of a commercial enterprise, said enterprise could be held liable for the negligence of its contractor.  However, Moses found that even if such a precedent was correctly decided it should be limited to a "commercial" context:

We have not found, and the parties have not provided, any cases that extend Hassaine’s “impliedly adopted” rule to non-commercial contexts. Moreover, even in cases involving a commercial enterprise, “control” is still a required element where the business invitee was injured outside the business premises. [Citation.] (Moses, p. 16.)

A crucial difference, of course, between a tenant in a residential context and the operator of a business is the “special relationship” between the business and its patrons. (Moses, pp. 16-17.) [2]   Defendant in Moses therefore owed plaintiff no duty of due care to have prevented or warned about the harm from the porch step, making it irrelevant that plaintiff that submitted evidence supposedly showing defendant knew the lack of lighting on the porch was "dangerous."  Likewise, the fact the common area was allegedly out of compliance with the relevant building code did not expand the scope of the tenant’s duty to maintain the area he leased, tenant being a mere leaseholder and not an owner. [3]

1 - Apparently the owner of the condominium was not a party to the suit at the time the tenant brought his motion.
2 - Alcarez may be the case most miscited by the California Plaintiffs’ Bar.  This is in terms of 1) misleading the trial court as to the facts in Alcarez, and 2) brazen attempts to apply its holding to situations where its rationale cannot possibly apply.  Such arguments ignore both public policy and the extensive discussion in Alcarez, which does not contemplate an expansion of tort liability to include all adjoining landowners.
3 - The question arises as to the potential liability of the owner of the condominium.  An owner may have less knowledge as to the lack of lighting in the common area outside the unit than would a tenant supposing, for example, that a lighting fixture owned by the association has just malfunctioned.  Still, a court might find the owner of the premises, as opposed to a tenant, has a greater duty to communicate with the association as to known defects.  Indeed, the CC&Rs (Codes, Covenants, and Restrictions) of the association may be pertinent to show the responsibilities of the individual unit owners versus the association.

“Observance” by phone: mother who perceives injury to daughter while on a call may claim “bystander” emotional distress if aware of defendant’s negligence (Downey v. Riverside)

California recognizes emotional distress damages caused by witnessing physical harm to close family members

Lay persons are often surprised to learn one may recover for their own emotional distress due to the physical injury of another.  However, under California law, a party who experiences no physical harm may still claim emotional distress for the injury to a close family member as long as they contemporaneously perceive the injury caused by the defendant.  Nonetheless, there are important limitations on recovery for what is called “bystander” emotional distress.  Most importantly, the person claiming distress must have perceived the harm from the defendant as it is happening and been aware of such harm. (Dillon v. Legg (1968) 68 Cal. 2d 728, and Thing v. La Chusa (1989) 48 Cal. 3d 644.)  Dillon recognized bystander recovery for negligent infliction of emotional distress, sometimes given the odd acronym “NIED.” [1]  After the landmark Supreme Court holding in Dillon, the appellate court in Thing gave such amorphous claims crucial limitations so that a defendant who causes physical harm to a plaintiff is not also liable to each and every person who witnesses this harm.  In the absence of physical injury or impact to the plaintiff, damages for emotional distress should be recoverable only if the 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 emotional distress.

In light of the tendency of California courts to expand the scope of potential claims, there is tension between the limitations found in Thing and factual patterns presenting sympathetic claims for negligent infliction of emotional distress. These include situations that do not present a classic scenario such as a parent physically present at the very scene where their child is harmed.  Subsequent case law has sought to define how modern technology impacts the requirement that someone be “present at the scene” and is “aware” of the conduct which is causing a family member’s physical harm.

It is therefore important that in Downey the Fourth District, Division One, held a party may state a claim for NIED even where they perceive the injury to a loved one by way of a telephone call. (Downey v. City of Riverside (April 26, 2023) D080377.)  However, such a plaintiff must also plead and prove the person suffering emotional distress was aware of the connection of the defendant to the harm suffered by their loved one.  Plaintiff in Downey was the mother of a young woman injured while driving and, in fact, the two were talking on the telephone during the car crash. The mother stayed on the call though her daughter stopped speaking; a Good Samaritan then came to aid the daughter and asked the mother to hang up and call 911 for help. The mother and daughter sued the other driver, the homeowner adjacent to the intersection near the collision, and the City of Riverside, which maintained this intersection. The allegation against the latter two was that the accident was caused in part by the design of the intersection and/or homeowner’s maintenance of vegetation blocking the view of motorists.  

Riverside and the homeowner filed demurrers as to the mother’s claim, arguing neither could claim negligent infliction of emotional distress.  The demurrer was sustained without leave to amend by the trial court but the appellate court reversed.  A two-to-one majority held the mother had failed to properly plead she was aware of some sort of connection between, on the one hand, her daughter's harm, and, on the other hand, the negligence of Riverside and the homeowner.  The court further held the mother should be allowed to amend her complaint to plead such knowledge.

Negligent emotional distress is an element of negligence and is not plead as a separate tort as is “intentional infliction of emotional distress”

Of course, negligent infliction of emotional distress is not a separate cause of action but rather an element of damages recognized as compensation for negligent conduct. (Burgess v. Superior Court (1992) 2 Cal. 4th 1064, at 1072.)  A plaintiff claiming physical harm due to another’s negligence may therefore also claim damages for the emotional distress caused by the physical harm. Moreover, close family members who witness this harm may claim such distress, subject to certain strict limitations. [2]

By contrast, intentional infliction of emotional distress is predicated upon a defendant’s unprivileged commission of an “outrageous act" with the intent to inflict mental suffering, thus requiring 1) extreme and outrageous conduct by the defendant with the intent of causing emotional distress; 2) severe or extreme emotional distress suffered by the plaintiff; and 3) actual and proximate causation of the emotional distress by the alleged outrageous conduct. (Christensen v. Superior Court (1991) 54 Cal. 3d 868, at 903.)  In order to recover on this theory, a plaintiff must plead and prove that defendant’s acts were so extreme and outrageous as to exceed all bounds of decency and behavior beyond that normally tolerated in a civilized society. (Cervantez v. J. C. Penney Co. (1979) 24 Cal. 3d 579, at 593; Yurick v. Superior Court (1989) 209 Cal. 3d 1116, at 1128.)  As the court stated in Christiansen, “[t]he defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.”  The chief exception to the requirement of “intent” is where a defendant acts in “reckless disregard” of the plaintiff and with “substantial certainty” their conduct will cause severe emotional distress. (Id., p. 903.)

Plaintiff could recover even though she “observed” the incident from another location by listening to a phone call

The Downey court cited with approval to Ko v. Maxim (2020) 58 Cal. App. 5th 1144, where the Second District, Division Seven, ruled a “bystander” to physical injury to a close family member includes someone who observes the harm through electronic means.  This is important because Thing provided a bright line  test regarding the elements of a bystander’s claim for negligent infliction of emotional distress by stating a close family member may recover where they are 1) present at the scene when the injury-producing event happens, and 2) are aware the event is causing injury.

Plaintiffs in Ko brought claims for negligent infliction of emotional distress alleging an in-home nurse employed by defendant Maxim abused their disabled son while they were not at home.  The Kos alleged they witnessed the abuse of their son in real-time via a livestream video and audio on a smartphone from a “nanny cam.”  The trial court ruled the parents could not state a claim for negligent infliction of emotional distress because they were not physically present at the time of the harm to their son.  The appellate court reversed and held that a “live stream” of an event constituted sufficient “presence” to meet the requirements of Thing and Dillon. Specifically, Ko discussed the technological advances which have occurred since 1989 and explained these changes make it possible for someone to be present virtually in a manner not previously possible and therefore to observe harm to a family member.  Thing held the right to recovery is based upon the “impact” of the actual observation of harm, and thus “distinguishes the plaintiff’s resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.” (Thing, 48 Cal. 3d at 666.) 

Downey therefore held the plaintiff mother had “contemporaneous observance” of both the incident and the harm her daughter suffered even though she was in a different location and merely heard but did not see, the crash.  The plaintiff had met the “contemporaneous observance” element of the claim for emotional distress by virtue of the facts plead:

. . . Downey [mother] heard Vance [daughter] take an audibly sharp, gasping breath; her frightened or shocked exclamation: “Oh!”; and the simultaneous, or near-simultaneous sounds of an explosive metal-on-metal vehicular crash; shattering glass; and rubber tires skidding or dragging across asphalt. Downey had not heard the sounds of skidding tires or squealing brakes in the seconds immediately preceding the impact. Then and there, Downey knew from the combination of the sounds she heard, and from having directed Vance where to drive, that Vance had been injured in a high-velocity motor vehicle collision at or near Via Zapata at Canyon Crest Drive. 

As the sound of tires skidding or dragging across asphalt diminished, and having heard no sounds or vocalizations from Vance, Downey understood Vance was injured so seriously she could not speak. Downey immediately left her office, telling people there something like, “I have to go, my daughter has been in a car accident, I have to go.” As Downey ran to her car and started driving toward the scene of the incident, she called out to Vance. For a time, Downey heard nothing, but then heard the sound of rustling in Vance’s car. Downey started screaming into her phone, “Can you hear me? Can you hear me? I can hear you, can you hear me?” She then heard a male voice say something like, “Would you stop? I’m trying to find a pulse.” Downey waited, then asked, “Is she alive?” Moments later, the man said, “She breathed. I got a breath.” He then said something like: “What I am going to tell you to do is going to be the hardest thing you will ever do in your life. I want you to hang up your phone and call 911, and have them respond to Via Zapata and Canyon Crest Drive in Riverside.” (Downey, pp. 4-5.)

However, plaintiff did not plead she was aware Riverside and the homeowner had any connection to the harm she observed

The City and homeowner argued the complaint did not plead a sufficient causal connection between their actions and the emotional distress supposedly suffered by the plaintiff, such as her familiarity with and awareness of the dangerous conditions they created at the intersection. 

This is because a plaintiff suing a particular defendant must plead not only observance of the actual harm but, as to a specific defendant, the “‘contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.’” (Bird v. Saenz (2002) 28 Cal. 4th 910, at 918, quoting Golstein v. Superior Court (1990) 223 Cal.App. 3d 1415, at 1427-1428.)  In Bird the Supreme Court reversed the Second District, Division Seven, which had in turn reversed the trial court’s grant of summary judgment in favor of the medical malpractice defendants. Writing for a unanimous court, Justice Werdeger explained the defendants were entitled to summary judgment as the plaintiffs were not present at the time the medical malpractice occurred and were not aware until later that the defendants had caused the harm.  This was true even though there had been a call for a thoracic surgeon over the loudspeaker at the hospital because such a general announcement would not tell anyone in the waiting room anything about a specific surgical procedure being performed.

Plaintiff in Downey was permitted to amend to plead facts showing, at the time of the accident, awareness of the relationship of the defendants to the collision

In an opinion written by Justice O’Rourke, to which Justice O’Connell joined, the majority in Downey held Riverside and the homeowner were required to plead awareness of a connection between the defendants who supposedly created a dangerous intersection and the plaintiff who observed the harm.  Consequently, the trial court’s judgment of dismissal was vacated and the matter remanded to the trial court with instructions to permit the plaintiff to plead her awareness of the negligence of both Riverside and the homeowner.  Plaintiff, of course, maintained she had such awareness because she had been giving her daughter directions just before the crash and therefore knew where her daughter was, and was familiar with the intersection at issue and its problems.

Justice Dato concurred the judgment in favor of the demurring defendants should be set aside but argued the demurrer should have been overruled by the trial court.  The dissent argued a plaintiff who observed harm to a close family member should not have to plead awareness, at the very time of injury, of the relationship of each defendant to the harm.  According to the dissent, language in Bird indicating a plaintiff must meet this hurdle should be limited to a medical-malpractice context because in such suits “there is seldom a readily-perceptible traumatic incident.”  Here, by contrast, the plaintiff knew an accident was happening and that her daughter was injured. 

Advice for practitioners pleading and defending claims of negligent infliction of emotional distress where observed electronically

Plaintiffs seeking to claim emotional distress by way of an ordinary phone call, Zoom meeting, FaceTime call, or other methods of “livestreaming” should be aware of the holdings in both Ko and Downey. It should not matter that the stream involves, audio, video, or a combination of the two as long as the facts show “contemporaneous observance” of harm to a close family member.  

However, plaintiffs are advised to also plead some minimal knowledge of the relationship of each particular defendant to the harm. Specifically, each plaintiff should plead knowledge that the family member observing the harm is aware of the relationship of each defendant to the harm and, in particular, how their breach of the duty of due care contributed to the harm.

By contrast, defendants should be aware of the pleading requirements outlined in Thing, Ko, and Downey and should be ready to test pleadings by way of demurrer.  They should also propound specific discovery as to what knowledge the plaintiff had as to each defendant's relationship to the harm at the time it occurred.  Such discovery may be a necessary prerequisite to a motion for summary judgment and/or summary adjudication seeking to bar damages for negligent infliction of emotional distress.

Justice Dato concurred the judgment in favor to the demurring defendants should be set-aside but argued the demurer should have been overruled by the trial court.  The dissent argued a plaintiff who observed harm to a close family member should not have to plead awareness, at the very time of injury, of the relationship of each defendant to the harm.  According to the dissent, language in Bird indicating a plaintiff must meet this hurdle should be limited to a medical-malpractice context because in such suits “there is seldom a readily-perceptible traumatic incident.”  Here, by contrast, the plaintiff clearly knew an accident was happening and that her daughter was injured. 

Advice for practitioners pleading and defending claims of negligent infliction of emotional distress where observed electronically

Plaintiffs seeking to claim emotional distress by way of an ordinary phone call, a Zoom meeting, or a FaceTime call, or other method of “livestream” should be aware of the holdings in both Ko and Downey.  It should not matter that the stream involves, audio, video, or a combination of the two as long as the facts show “contemporaneous observance” of harm to a close family member.

However, plaintiffs are advised to also plead some minimal knowledge of the relationship of each particular defendant to the harm.  Specifically, it is advisable that each plaintiff plead the knowledge that the family member observing the harm is aware of the relationship of each defendant to the harm and, in particular, how their breach of the duty of due care contributed to the harm.

By contrast, defendants should be aware of the pleading requirements set forth in Thing, Ko, and Downey and should be ready to test pleadings by way of demurrer.  They should also propound specific discovery as to what knowledge the plaintiff had as to each defendant's relationship to the harm at the time it occurred.  Such discovery may be a  necessary prerequisite to a motion for summary judgment and/or summary adjudication as to claims for negligence infliction of emotional distress.

1- Not to be confused with Pharrell William’s band “N.E.R.D.”2: A separate discussion is required to define who qualifies as a “close” relative, but persons who may inherit property under intestate law succession usually qualify.

2 - A separate discussion is required to define who qualifies as a “close” relative, but persons who may inherit property under intestate law succession usually qualify.

Extending the time to file a Notice of Appeal, California Rules of Court Rule 8.108

Extending time to file a notice of appeal in the unlimited civil jurisdiction of the Superior Court from a judgment or appealable order 

California Rules of Court, rule 8.108 provides for the extension of the 60-day time limit to file a notice of appeal found in Rule 8.104.  These “extensions” do not involve excuse of the deadline to file a notice of appeal due to health issues or other unforeseen circumstances, but, rather, procedural contexts such as the filing of a post-trial motion. Under these circumstances, it is logical to extend the time to file a notice of appeal to permit such post-trial motions to be heard in the Superior Court before the appeal proceeds.  Of course, it is the filing of a notice of appeal in the unlimited civil  Superior Court jurisdiction which begins the appellate process within the appropriate appellate district:

Rule 8.108. Extending the time to appeal

(a) Extension of time

This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.

(Subd (a) adopted effective January 1, 2008.)

(b) Motion for new trial

If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time apply:

(1)  If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of:

(A)  30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order;

(B)  30 days after denial of the motion by operation of law; or

(C)  180 days after entry of judgment.

(2)  If the trial court makes a finding of excessive or inadequate damages and grants the motion for a new trial subject to the condition that the motion is denied if a party consents to the additur or remittitur of damages, the time to appeal is extended as follows:

(A)  If a party serves an acceptance of the additur or remittitur within the time for accepting the additur or remittitur, the time to appeal from the judgment is extended for all parties until 30 days after the date the party serves the acceptance.

(B)  If a party serves a rejection of the additur or remittitur within the time for accepting the additur or remittitur or if the time for accepting the additur or remittitur expires, the time to appeal from the new trial order is extended for all parties until the earliest of 30 days after the date the party serves the rejection or 30 days after the date on which the time for accepting the additur or remittitur expired.

(Subd (b) amended effective July 1, 2012; adopted as subd (a); previously amended and relettered effective January 1, 2008; previously amended effective January 1, 2011.)

(c) Motion to vacate judgment

If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move-or a valid motion-to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of:

(1)  30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order;

(2)  90 days after the first notice of intention to move-or motion-is filed; or

(3)  180 days after entry of judgment.

(Subd (c) amended effective January 1, 2011; adopted as subd (b); previously amended effective January 1, 2007; previously relettered effective January 1, 2008.)

(d) Motion for judgment notwithstanding the verdict

(1)  If any party serves and files a valid motion for judgment notwithstanding the verdict and the motion is denied, the time to appeal from the judgment is extended for all parties until the earliest of:

(A)  30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order;

(B)  30 days after denial of the motion by operation of law; or

(C)  180 days after entry of judgment.

(2)  Unless extended by (g)(2), the time to appeal from an order denying a motion for judgment notwithstanding the verdict is governed by rule 8.104.

(Subd (d) amended effective January 1, 2015; adopted as subd (c); previously amended effective January 1, 2007; previously relettered as subd (d) effective January 1, 2008; previously amended effective January 1, 2007, and January 1, 2011.)

(e) Motion to reconsider appealable order

If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of:

(1)  30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order;

(2)  90 days after the first motion to reconsider is filed; or

(3)  180 days after entry of the appealable order.

(Subd (e) amended effective January 1, 2011; adopted as subd (d); previously relettered effective January 1, 2008.)

(f) Public entity actions under Government Code section 962, 984, or 985

If a public entity defendant serves and files a valid request for a mandatory settlement conference on methods of satisfying a judgment under Government Code section 962, an election to pay a judgment in periodic payments under Government Code section 984 and rule 3.1804, or a motion for a posttrial hearing on reducing a judgment under Government Code section 985, the time to appeal from the judgment is extended for all parties until the earliest of:

(1)  90 days after the superior court clerk serves the party filing the notice of appeal with a document entitled "Notice of Entry" of judgment, or a filed-endorsed copy of the judgment, showing the date either was served;

(2)  90 days after the party filing the notice of appeal serves or is served by a party with a document entitled "Notice of Entry" of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or

(3)  180 days after entry of judgment.

(Subd (f) amended effective January 1, 2016; adopted effective January 1, 2011.)

(g) Cross-appeal

(1)  If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk serves notification of the first appeal.

(2)  If an appellant timely appeals from an order granting a motion for new trial, an order granting-within 150 days after entry of judgment-a motion to vacate the judgment, or a judgment notwithstanding the verdict, the time for any other party to appeal from the original judgment or from an order denying a motion for judgment notwithstanding the verdict is extended until 20 days after the clerk serves notification of the first appeal.

(Subd (g) amended and relettered effective January 1, 2011; adopted as subd (e); previously relettered as subd (f) effective January 1, 2008.)

(h) Service; proof of service

Service under this rule may be by any method permitted by the Code of Civil Procedure, including electronic service when permitted under Code of Civil Procedure section 1010.6 and rules 2.250-2.261. An order or notice that is served must be accompanied by proof of service.

(Subd (h) amended and relettered effective January 1, 2011; adopted as subd (f); previously relettered as subd (g) effective January 1, 2008.)