Judge Audra Mori, Case 20STCV33913 2022-09-19 Tentative Ruling

Plaintiff Ik Hoon Choi (“Ik Hoon”) and Hannah Choi (“Hannah”) (collectively, “Plaintiffs”) filed this action against Defendant Filippo Marchino (“Defendant”) for damages relating to a dog bite incident. Plaintiff alleges that on June 16, 2019, Defendant’s dog bite Ik Hoon. The complaint alleges a single cause of action for negligence by Plaintiffs against Defendant.

Defendant now moves for summary judgment, or alternatively, summary adjudication as to Hannah’s claim against Defendant. Hannah opposes the motion, and Defendant filed a reply.[1]

Defendant asserts that while Plaintiffs allege Defendant’s dog bit Ik Hoon and suffered emotional distress from witnessing the incident, the undisputed facts show that Hannah did not witness the incident, did not suffer serious emotional distress and did not suffer any damages. Defendant argues that Hannah’s claim for negligent infliction of emotional distress (“NIED”) fails because Hannah was not a bystander as to whom Defendant owed a duty.

Hannah avers she is claiming serious emotional distress both as a direct victim, which Defendant fails to address, and as a bystander to the attack on Ik Moon, her father. Hannah further asserts that she witnessed the attack on her father as she had a contemporary sensory awareness of the incident, and that her deposition testimony supports her claim for serious emotional distress.

Defendant requests that judicial notice be taken of Plaintiffs’ complaint filed in this action, and of the Second District Court of Appeal Decision Field v. U.S. Bank National Assn. (2022) 79 Cal.App.5th 703. The request is granted as to each item pursuant to Evidence Code § 452(d).

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

“ ‘Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply…’ ” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130.) The California Supreme Court has established that the negligent causation of emotional distress is not an independent tort; rather it is the tort of negligence. (See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072; see also Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204 [“the California Supreme Court has emphasized that ‘there is no independent tort of negligent infliction of emotional distress.’ [Citation.] Instead, ‘the tort is negligence, a cause of action in which duty to the plaintiff is an essential element.’ [Citation.]”].)

The Supreme Court continues to adhere to the distinction between “direct victim” and “bystander” claims for emotional distress arising from negligence. (See Burgess, 2 Cal.4th 1072-74.) The major distinction between the two claims rests on the source of the duty owed to the plaintiff. (Id. at 1073.) In a “direct victim” claim, the duty arises directly from the relationship between the plaintiff and defendant, whereas a “bystander” claim arises where the defendant owes a no duty to plaintiff beyond the duty to the general public. (Id.) Since “bystander” claims could be limitless, the Supreme Court has set forth limits for a “bystander” claim. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 647 [stating that “bystander” liability arises where there is a close relationship between the victim and plaintiff, the plaintiff witnessed the injury to the victim, and it was foreseeable that as a result of the injury to the victim, the plaintiff would suffer emotional distress].) “There is no duty to avoid negligently causing emotional distress to another, and … damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.)

The elements of a cause of action for the negligent infliction of emotional distress based on the bystander theory are: (1) the plaintiff 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; see also Ra v. Sup. Ct. (2007) 154 Cal.App.4th 142, 148-49, 64 Cal.Rptr.3d 539 [bystanders must be closely related to the victim, have been present at the scene and contemporaneously aware of injuring, and have suffered serious emotional distress]; Smith v. Pust (1993) 19 Cal.App.4th 263, 273, 23 Cal.Rptr.2d 364 [plaintiff must be direct victim or a bystander who witnessed to the injury].)

“[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, 48 Cal.3d at 667-68 [emphasis added].)

The requirement that a plaintiff be present at the scene of the injury producing event and be aware that it is 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].) The requirement of “sensory and contemporaneous observance of the accident” does not require a visual perception of the impact causing the death or injury.” (Krouse v. Graham (1977) 19 Cal. 3d 59, 76.) The key is that, at the time of perception, the bystander knows the event is injuring the relative. (Thing, 48 Cal.3d at 668; See also Wright v. City of Los Angeles¿(1990) 219 Cal.App.3d 318, 350 [No NIED claim where a plaintiff saw paramedics treating a family member¿but did not know¿he was being maltreated].) Accordingly, the “plaintiff must be ‘then aware that the [injury-producing event] is causing injury to the victim.” (Fortman v. Forvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 836, citing to Thing, supra, 48 Cal.3d at 667-68).)

Moreover, plaintiff bystanders must prove “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 … [S]erious mental distress may be found where a reasonable person normally constituted would be unable to adequately cope with the mental distress engendered by the circumstances of the case.” (Thing v. La Chusa, 48 Cal.3d at 667-8, n. 12; see also Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1377 [evidence of losing sleep, upset stomach and anxiety did not constitute severe emotional distress of such lasting and enduring quality that no reasonable person should be expected to endure].)

Here, Defendant avers that Hannah did not see the dog bite incident occur. (UMF 1.) It is undisputed that Hannah did not see Defendant’s dog’s teeth on her father’s hand. (UMF 2.) It is undisputed that before the incident, Hannah had jogged ahead of her father. (UMF 2-3.) Defendant provides evidence from Hannah’s deposition that Hannah was walking ahead of her father, who was walking with Plaintiffs two poodles, when the incident occurred, and she first learned of the incident when she heard one of Plaintiffs’ dogs, Mochi, scream. (UMF 4-5 and cites therein.) The only damages Hannah is claiming as a result of the incident are for emotional distress. (UMF 6-10.)

The evidence is sufficient to meet Defendant’s moving burden to show that Defendant is entitled to judgment on Hannah’s NIED claim. The burden therefore shifts to Hannah to raise a triable issue of fact in this regard.

Hannah, in opposition, argues that the undisputed fact that Hannah did not see Defendant’s dog bite into Ik Moon’s hand is irrelevant because Hannah arrived at the scene of the attack and saw Defendant’s dog making snarling, growling and biting movements, so she did not have to see the dog’s teeth come into contact with his hand. Plaintiff contends she had a contemporaneous sensory awareness of the incident as she witnessed her father’s bloody hand within moments of the attack, and she testified that she was just 10 to 15 feet away from her father when she saw Defendant’s dog extremely close to his hand. In making this argument, Plaintiff cites to Archibald v. Braverman (1969) 275 Cal.App.2d 253, in which a mother was permitted to recover when she did not see the accident- an explosion- but came upon the scene “within moments” to observe her child lying wounded. (Id. at 255-56.) The Court reasoned that “[a] tortfeasor who causes injury to a child may reasonably expect that the mother will not be far distant and will, upon witnessing the event, suffer emotional trauma. [Citation.] Consequently, the mother, having witnessed the injuries within moments after the explosion at a time when she was attempting to render aid, fulfilled the ‘nearness' requirement in terms of distance as well as time.” (Id. at 256.) “Manifestly, the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself. Consequently, the shock sustained by the mother herein was ‘contemporaneous' with the explosion so as to satisfy the ‘observance’ factor.”

However, as Defendant asserts in reply, Archibald was expressly disapproved of in Thing v. La Chusa, which requires presence at the scene of the accident at the time it occurs and for a plaintiff to be aware that a defendant’s negligence is causing injury to the victim.[2] (Thing, 48 Cal.3d at 668-69; see also Goldstein v. Superior Court (1990) 223 Cal.App.3d 1415, 1427 [It is manifest … that Thing declares the scope of … recovery should be limited by more stringent definition of the requirement of contemporaneous observance of event and injury.”].) Additionally, as Defendant further asserts, the facts of Archibald are inapposite to this case, as this matter does not concern a parent coming upon his or her severely injured child. Accordingly, the presumption relied upon by the Archibald Court- that “a tortfeasor who causes injury to a child may reasonably expect that the mother will not be far distant and will, upon witnessing the event, suffer emotional trauma”- is inapplicable in this case. (Archibald, 275 Cal.App.2d at 256.)

The evidence shows that Hannah was not present and did not see the alleged dog bite incident occur. Plaintiff’s deposition testimony shows the following relevant exchanges:

A. I saw the dog in really close proximity to my dad and my two Poodles, and I saw Mr. Marchino grab the collar of the dog and pull him up the driveway.

Q. Yeah. Did you see a dog have its teeth on your dad at any point in time on June 16th, 2019?

A. I saw the black German Shepherd. He was extremely close to my dad's hand. I don't -- I can't really say from my distance whether his teeth were on his hand or not.

Further, when asked how she first learned of the incident, Plaintiff testified, “Well, I was a little bit ahead of my dad -- my dad had out two Poodles -- and I heard Mochi [one of the poodles] scream.”[3] (Id. at p. 31:5-7.) After hearing her dog scream, Plaintiff, who had jogged ahead of her father, ran back, which Hannah stated took around ten seconds, and saw “[Defendant] pulling his black dog by the collar, and he was pulling him away. And then soon after, he just went up his driveway.” (Id. at pp.35-36:24-1.) Finally, Hannah testified as follows regarding whether she witnessed Defendant’s dog bite her father:

Q. As you sit here today, can you say with 100 percent certainty that you saw Mr. Marchino's dog bite your dad?

Q. Okay. That's a different answer. And so I'm asking you, did you -- can you say with 100 percent certainty that you saw Mr. Marchino's dog actually bite your dad?

A. I don't -- I don't know. I saw a lot of movement from his dog, just shaking his head, snarling, and biting.

While Hannah is correct that the requirement of “sensory and contemporaneous observance” does not require visual perception of the incident, (Krouse, 19 Cal. 3d at 76), Hannah’s testimony establishes that she did not observe or perceive Defendant’s dog biting her father. Hannah explicitly testified that she first learned of the incident when she heard one of Plaintiffs’ dogs scream, and that Plaintiff ran back to her father about ten seconds after hearing the scream. Hannah then saw Defendant pulling his dog by the collar and pulling him away up his driveway. When asked directly whether she saw Defendant’s dog actually bite her father, Hannah merely responded, “I don’t know” and stated that she only saw a lot of movement from Defendant’s dog, including head shaking, snarling, and biting motion. (Id.) Hannah, thus, did not testify that she observed the alleged injury producing event- that is, Defendant’s dog biting her father. There is no evidence that Hannah saw the dog bite her father or otherwise perceived the dog bite by other senses and contemporaneously understood it was causing injury to her father. (Bird, 8 Cal.4th at 916-917.)

Hannah’s reliance on Wilks v. Hom (1992) 2 Cal.App.4th 1264, in arguing that she was sensorily aware of the dog attack, is also unavailing. In Wilks, the Court held that a mother could recover on a NIED claim in connection with the death of her daughter where there was an explosion and fire in the home, but the mother was not in the daughter’s room at the time of the explosion. (Id. at 1267.) While the Court acknowledged a plaintiff need not visually perceive the third party injury, the Court affirmed recovery must be limited “ ‘to plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.’ [Citation.]” (Id. at 1269-70.) “[A]lthough Wilks could not visually witness the infliction of injuries to [her daughter] Jessica, she was most evidently present at the scene of the accident, was personally impressed by the explosion at the same instant damage was done to her child, and instantly knew of the likely severe damage to the child.” (Id. at 1271.) The Court then found the mother’s “testimony [was] sufficient to establish the requirement that she personally and contemporaneously perceived the injury-producing event and its traumatic consequences.” (Id. at 1273.) Unlike in Wilks, where the mother simultaneously knew of the likely severe injury to her child, in this case, Hannah was not aware of any injury to her father at least until she ran back after hearing her dog scream and saw Defendant pulling his dog away after the dog bite incident. Thus, Hannah was not aware of the injury producing event until after it occurred.

This case is therefore more analogous to the facts in Ra v. Superior Court (2007) 154 Cal.App.4th 142, where the plaintiff wife was in a store with her husband, when a large overhead store sign fell on the husband and struck him in the head. (Id. at 540-41.) At the time her husband was hit with the sign, the plaintiff wife heard the “loud bang” from the part of the store where the husband was located, and she feared for her own safety and that of her husband, but she didn’t know at the time of the loud bang that in fact her husband had been injured. (Id. at 146.) The Court in Ra distinguished Wilks on the basis that the mother there was “sensorially aware” at the time of the event that her child was injured. (Id. at 150.) The Court found that plaintiff Ra’s fear for her husband’s safety at the time she heard the loud bang from the part of the store where he was shopping was “insufficient as a matter of law to establish contemporaneous awareness of her husband’s injuries at the time of the injury-producing accident within the meaning of Thing ….” (Id. at 152-53.) Similarly in this case, there is no evidence that Hannah was sensorially aware at the time of the incident that her father was injured. While she heard her dog, she did not hear her father, and when she looked, she saw Defendant pulling his dog away. As the Court held: Thing’s limitation ‘excludes those plaintiffs who come upon the scene after the event, and whose observation is solely of the consequences of the occurrence.’” (Id. at 141 n.9., citing Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, 185.)

The evidence in this case shows that Hannah became aware of her father’s injuries- at the earliest- after the alleged injury causing event. This is insufficient to state a bystander claim for NIED.

Hannah further argues that she can recover damages under a direct victim theory for NIED based on her fear of injury from Defendant’s dog. To establish a claim for negligent infliction of emotional distress as a direct victim, Plaintiff must show the traditional elements of negligence, namely duty, breach of duty, causation, and damages, as well as severe emotional disturbance or suffering by reason of Defendant's conduct. (Marlene F v. Psychiatric Med Clinic (1989) 48 Cal.3d 583, 588.) A defendant whose negligent conduct breaches some other legal duty to plaintiff is liable for proximately caused serious emotional distress. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)

Hannah avers that Defendant had a duty to keep his dog under control. Although Hannah argues that Defendant failed to address Hannah’s claim for emotional distress injuries based on her fear of injury from Defendant’s dog, the complaint contains no such allegations- that is, there are no allegations concerning Hannah’s alleged fear of injury from Defendant’s dog. And instead the complaint alleges only that “On the above date at the above location, defendant's dog bit plaintiff lk Hoon Choi.” (Compl. at p. 4.) Plaintiffs’ complaint serves to frame the scope of the issues which must be addressed in the summary judgment motion. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-82.) “The pleadings delimit the issues to be considered on a motion for summary judgment…Thus, a defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253, internal citations and quotations omitted.) Accordingly, Hannah is improperly raising for the first time, in opposition to Defendant’s motion for summary judgment, arguments under a direct victim claim for NIED.

Nevertheless, even in considering Hannah’s arguments, she fails to raise a triable issue of material fact in this regard. Plaintiff does not cite any evidence supporting her claim that Defendant breached any duty to her by failing to control his dog, and Plaintiff cites no evidence or authority suggesting that Defendant had a duty to do so under the facts presented. (Potter, 6 Cal.4th at 984 [“There is no duty to avoid negligently causing emotional distress to another…”].) Hannah does not assert that Defendant’s dog attacked her or otherwise directed any attention towards her.[4] Furthermore, Defendant’s evidence shows that Hannah’s responses to written discovery served on Hannah requesting she state all facts that support her claim she was injured or suffered serious emotional distress are completely devoid of any facts asserting fear of injury to herself. (Mot. Kilpatrick Decl. Exh. C.) For example, when asked to state all facts supporting her that claim she was injured, Hannah responded, “None.” (Ibid.) Similarly, although Hannah submits excerpts of her deposition testimony regarding the incident with her opposition, Hannah does not identify any testimony therein that would support her claim for NIED under a direct victim theory. (See Opp. Hoffman Decl. Exh. 1.) Furthermore, Hannah does not submit any other evidence supporting her contention Defendant breached a duty to Hannah such that he can be liable for NIED to Hannah under a direct victim theory.

Based on the foregoing, Defendant meets his moving burden to show he is entitled to judgment as a matter of law as to Hannah’s claim for negligence against Defendant. Hannah fails to raise a triable issue of material fact. Given this ruling, the Court need not reach the remaining issues.

Hon. Audra Mori

Judge of the Superior Court

[1] In the reply, Defendant contends the Court should disregard Plaintiff’s opposition because it was untimely filed less than 14 days before this hearing. However, as Defendant was able to address Plaintiff’s substantive arguments, the Court will consider the opposition.

[2] The Thing Court disapproved of Archibald to the extent it was inconsistent with its conclusion that “[t]he merely negligent actor does not owe a duty the law will recognize to make monetary amends to all persons who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct.”

[3] Mochi was not ultimately injured. (Opp. Hoffman Decl. Exh. 1 at p. 37:19-21.)

[4] Hannah testified that after running back to her father, she saw Defendant pulling his dog up his driveway.