Judge: Theodore R. Howard, Case: 21-1204297, Date: 2022-09-15 Tentative Ruling

Before the Court is a Motion for Summary Adjudication of Issues filed by Defendant ServiceFirst Restoration, Inc. (here “SRI”) as to the Negligent Infliction of Emotional Distress (“NIED”) cause of action presented by Plaintiff Cameron Mirsaidi (“Cameron”) in the Complaint. The Motion is GRANTED. 

First of all there is no such cause of action as NIED. The Court considers that it is a cause of action for negligence. A “bystander” NIED claim requires the plaintiff to show, among other things, that he was present at the scene of the injury-producing event at the time it occurred and was then aware that it is causing injury to the victim. (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) 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. Förvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 836; Ra v. Superior Court (2007) 154 Cal.App.4th 142, 152 [“It is the traumatic effect of the perception of the infliction of injury on a closely related person (whether visual or not) that is actionable, not the observation of the consequences of the occurrence.”]; Bird v. Saenz (2002) 28 Cal.4th 910, 916-917 [adult children could not maintain NIED claims based on medical negligence causing injury to their mother as they were not present in operating room and only learned of the injury thereafter].)

Here, it is undisputed that Cameron did not see his mother fall. (UF 11.)  He asserts here that he heard a loud sound, heard her cries for help, and then found his mother in the hallway after her fall. (UF 5-11.)  But he thus concedes that he only observed the consequences of the fall, which is insufficient to support the claim. (See Ra, supra, 154 Cal.App.4th at 152-153 [“Ra's fear for her husband's safety at the time she heard the loud bang emanating from the part of the store where she knew he was shopping and her belief the possibility of his injury was more likely than not are insufficient as a matter of law to establish contemporaneous awareness of her husband's injuries at the time of the injury-producing accident.”].)  So even based on the version of the facts asserted in the Opposition, the NIED claim would fail as a matter of law here.

In addition, Cameron’s deposition testimony presents a different version of events which clearly and unequivocally bars his claim.

In deposition, he testified that on the night at issue, he was in bed at around 2 am, he “woke up to go to the bathroom” but then heard a banging sound, went to investigate what it was, and went into the hallway, where he discovered that his mother had fallen “about 30 to 40 minutes” earlier.  (ROA 49, Ex. B.)  Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment. (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) “In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.) The admissions made by Cameron in deposition thus control here, and clearly reflect that the NIED claim at issue fails as a matter of law. The Motion is therefore GRANTED.

Counsel for moving party SRI is to give notice of this ruling.