Judge: John C. Gastelum, Case: 22-01296721, Date: 2023-08-15 Tentative Ruling

(1) Demurrer to Amended to Complaint (2) CMC

Tentative Ruling: (1) Defendant seeks an order sustaining its demurrer to Plaintiffs' FAC as to all causes of action brought on behalf of Messner on the following grounds:

1. The entire FAC as it fails to state facts sufficient to amount to a cause of action against Defendant for damages allegedly incurred by Messner. (Code Civ. Proc., § 430.10(e).)

2. Each of the causes of action alleged in the FAC on behalf of Messner as they are uncertain. Code Civ. Proc. § 430.10(f).)

Demurrer is sustained with 20 days leave to amend. (Code Civ. Proc., §430.10(e), (f).)

In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress are generally 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 beyond that which would be anticipated in a disinterested witness.  (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

To satisfy the second Thing requirement, the plaintiff must experience a contemporaneous sensory awareness of the causal connection between the defendant's infliction of harm and the injuries suffered by the close relative.  (Fortman v. Forvaltningsbolaget Insulan AB, (2013) 212 Cal.App.4th 830, 836, as modified, (Feb. 7, 2013).)

The bystander plaintiff need not contemporaneously understand the defendant's conduct as negligent, as opposed to harmful.  (Bird v. Saenz (2002) 28 Cal.4th 910, 920.)

Serious emotional distress from negligence without other injury is the same as “severe” emotional distress for the tort of intentional infliction of emotional distress.  (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1378.)

Here, Plaintiffs allaege Plaintiff Lois Caporale tripped over a rug placed in the walking path and dislocated her ankle.

As to element 1, Plaintiff Messner is the minor grandson of Plaintiff Lois Caporale.

As to element 2, while it appears Plaintiffs were shopping together, there is no specific facts pled that Messner was present at the scene of the injury-producing event at the time it occurs and was then aware that it was causing injury to the victim. Rather, Plaintiffs appear to simply plead, “The representative did not offer assistance or call for medical assistance for Plaintiff Caporale. The complete disregard for the health and well-being of his grandmother by the representative caused Plaintiff Logan Meffner to experience severe emotional distress.” It is not clear from the Complaint whether the injury-producing event is the fall itself, or the fact that vendor did not call for help. Did Messner see his grandmother fall? It is unclear. As such, it does not appear that element 2 is sufficiently pled.

As to element 3, in terms of serious/severe emotional distress, Plaintiffs plead, “The complete disregard for the health and well-being of his grandmother by the representative caused Plaintiff Logan Messner to experience severe emotional distress. Messner continues to experience fear and anxiety about Caporale's safety because of the extrememe [sic] and outrageous conduct of the defendant failing to call for medical assistance.” (Complaint, ¶G-1). Again, it is unclear whether the cause of the emotional distress was witnessing his grandmother fall and injure herself, or if it was caused by the failure to call for medical aid.

Defendant to give notice.