Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. John Shepard Wiley, Jr., Judge., Los Angeles County, Super. Ct. No. BC341698.
Baker, Burton & Lundy, Albro L. Lundy III, and Norman Coe for Plaintiffs and Appellants.
Manatt, Phelps & Phillips, Barry S. Landsberg, Joanna S. McCallum, and Andrew H. Struve for Defendant and Respondent.
JOHNSON, J.
Four young cousins brought suit against respondent Heidi Ludwick to assert claims primarily for intentional and negligent infliction of emotional distress. The cousins’ complaint, in essence, alleged Ludwick had wrongfully secreted and harbored the person who had been convicted of molesting them years before. The cousins claimed they suffered emotional distress because Ludwick’s actions prevented the molester from being incarcerated for his crimes. The trial court sustained Ludwick’s demurrer to the cousins’ first amended complaint without leave to amend and dismissed the action. The trial court found the allegations of the cousins’ first amended complaint contradicted the allegations of the original complaint in an attempt to state a cause of action for intentional infliction of emotional distress. For this reason, the trial court concluded the first amended complaint was a “sham pleading.” The trial court also found the cousins had not, and could not, allege Ludwick owed them a duty and thus the cousins could not state a cause of action for negligence. We affirm.
FACTS AND PROCEEDINGS BELOW
A. Factual Background
The allegations as stated in the operative first amended complaint are as follows: Appellants C.C. and A.C. are cousins of appellants F.L. and D.L. Wendy is F.L. and D.L.’s mother. Nancy is Wendy’s sister and C.C. and A.C.’s mother. Nancy and Wendy’s other sister, Bonnie, was an aunt of all appellants. Respondent Heidi Ludwick and Bonnie were once roommates in Ludwick’s tract home in an ungated Glendora neighborhood.
During the time Bonnie lived with Ludwick, appellants visited on many occasions including Thanksgivings, Christmases, birthdays, sleep-overs, BBQs, weekends, and holidays. Ludwick also gave appellants gifts for their birthdays and at Christmas.
From early 1994 through June 1995, Linden Roy Uriah Sawyer (Sawyer), Wendy’s boyfriend at the time, molested her daughters, F.L. and D.L., while he lived in Wendy’s home. In June 1995, Sawyer raped C.C. and molested A.C. while they were spending the weekend with their cousins.
Sawyer was arrested in June 1995 for raping C.C. and molesting A.C. From June 1995 to November 1996, Wendy allowed Sawyer to continue to live with her and her daughters because she doubted her nieces’ story. As a result, Sawyer continued to sexually molest F.L. and D.L. until his arrest in 1997. Appellants allege Ludwick posted Sawyer’s bail twice—$25,000 in 1995 on the C.C. and A.C. charges and $75,000 in 1997 on the F.L. and D.L. charges.
According to the first amended complaint, Ludwick fell in love and began a romantic relationship with Sawyer in 1993 or 1994. The first amended complaint alleges Ludwick is an heiress to a fortune “estimated at Two Billion Dollars.” Sawyer allegedly moved into Ludwick’s home and, in April 1997, Ludwick allegedly sold her home and purchased a 3.45 acre estate in a gated community. Appellants allege Ludwick purchased the estate in a secluded part of Glendora hills for the purpose of hiding Sawyer from the police.
Ludwick submitted a request for judicial notice, indicating no house was built on the property until 2002. The trial court did not rule on the request for judicial notice, but no such ruling was necessary as the issue is not essential to the resolution of this appeal.
Appellants testified at Sawyer’s preliminary hearings in January 1996 and May 1997. Sawyer pled guilty in June 1998 and was informed by the court he would be sentenced to 14 years in state prison for his crimes. Appellants expected to testify at Sawyer’s formal sentencing hearing in July 1998, but Sawyer failed to appear.
The first amended complaint alleges Ludwick “knew of all of the awful things Sawyer had done to these young girls, but with eyes wide open, without remorse, she consciously, knowingly, and selfishly hid Sawyer from the police.” Ludwick allegedly “conceived, executed and convinced Sawyer to agree to a plan that Sawyer would willfully fail to appear for formal sentencing . . . .” The first amended complaint states, “Because of [Ludwick’s] love and desire for Sawyer, and her desire for revenge against the plaintiffs, she placed all of her formidable assets—her money, her political connections, her economic power, her family prestige, and her family name—at Sawyer’s disposal, to protect Sawyer from the law and to hide him from capture. In doing this, [she] enabled, even worse, emboldened Sawyer to brazenly molest the plaintiffs at will.”
According to the first amended complaint, Ludwick sent a box of Sawyer’s clothes to court on the day he was to appear for sentencing. Appellants claim “[t]his was the crowning moment” in Ludwick’s plan for revenge. Appellants characterize the box of clothes as “a defiant, symbolic act, that Sawyer was loose, unrepentant and unfettered by any laws or common decency, and free to cause them harm.”
Sawyer remained free until his arrest at Ludwick’s estate in November 2003. During the five-year period between Sawyer’s failure to appear for sentencing and his arrest, appellants allege Ludwick provided Sawyer with “food, shelter, employment, her constant companionship and intimacy as well as anything and everything he needed to avoid capture by the police, in order to keep Sawyer with her and to revenge herself against [appellants], whom Heidi Ludwick knew and desired would never have any peace while the pedophile who abused them was still on the loose and could strike back at them at any time.”
Ludwick allegedly married Sawyer and paid for a name change “so that they could gain an additional measure of freedom through this artifice.” Appellants allege Ludwick “perpetrate[d] this fraudulent plan” to enable Sawyer “to more readily move out into the community with the practical result of creating greater opportunity for terrorizing [appellants].”
Appellants allege in their first amended complaint Ludwick knowingly committed these acts to cause them extreme anxiety and fear “in retribution against them for telling police about what Sawyer had done to them and testifying against Sawyer in court.” Allegedly, Bonnie, appellants’ aunt, told Ludwick “of the girls’ awful fear, the constant dread, trapped in their recurring anxiety, that Sawyer might somehow appear and take his revenge on the girls for their testimony against him. [Ludwick] knew that she was stealing the happiness, joy and freedom from these young girls that they should have experienced in their teenage years. . . . But all of this knowledge did not matter to [Ludwick], as long as she could have Sawyer and have her revenge against the girls for the terrible life they had forced Sawyer and her to lead, filled with lies, deception and fear of exposure. Because she could have no peace, they would have no peace. She was both glad for and at the same time, indifferent to the emotional and psychological suffering [they] experienced because of her.”
B. Procedural History
Appellants filed suit against Ludwick on October 20, 2005 alleging claims for conspiracy, tort in se, intentional infliction of emotional distress (IIED), and negligence. Ludwick demurred to the complaint. At the hearing on Ludwick’s demurrer, the trial court addressed the negligence claim, stating, “it seems to me that there is no relationship between the—for plaintiffs and the defendant that gives rise to a duty. So it seems to me that the negligence theory properly should be the subject of a demurrer and should be sustained.”
Regarding the IIED claim, the trial court sustained the demurrer with leave to amend finding appellants had failed to allege a valid claim for IIED.
Appellants filed their first amended complaint, which alleged the same causes of action for conspiracy, tort in se, IIED, and negligence. Ludwick demurred to the first amended complaint. Following another hearing, the trial court sustained the demurrer to the first amended complaint without leave to amend. The court considered appellants’ attempt to correct the defects in the original complaint to be a sham. The court stated the shift in the first amended complaint to Ludwick’s alleged desire for revenge directly contradicted the assertions in the original complaint alleging Ludwick’s indifference to the consequences of her actions. The trial court further found the first amended complaint still failed to allege a duty sufficient to state a cause of action for negligence.
Appellants appeal from the ensuing judgment of dismissal.
DISCUSSION
I. STANDARD OF REVIEW WHEN A DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND.
A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court’s discretion. Therefore, an appellate court employs two separate standards of review on appeal. First, the complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action. In doing so, we accept as true the properly pleaded material factual allegations of the complaint, together with facts which may be properly judicially noticed. Reversible error exists only if facts were alleged showing entitlement to relief under any possible legal theory.
Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.
Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.
Crowley v. Katleman (1994) 8 Cal.4th 666, 672.
Second, on review of the trial court’s refusal to grant leave to amend, we will only reverse for abuse of discretion if we determine there is a reasonable possibility the pleading can be cured by amendment. Otherwise, the trial court’s decision will be affirmed.
Zelig v. County of Los Angeles, supra, 27 Cal.4th at page 1126.
II. THE ALLEGATIONS OF IIED IN THE FIRST AMENDED COMPLAINT CONSTITUTE A SHAM PLEADING.
The elements of the tort of IIED are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . . Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.] The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.] It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, italics added.
As noted, the exception to the “directed at” requirement is the recklessness variation of IIED. The exception comes into play “when the defendant is aware, but acts with reckless disregard of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that plaintiff. [Citation.] Where reckless disregard of the plaintiff’s interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory.”
Christensen v. Superior Court, supra, 54 Cal.3d at page 903.
Christensen v. Superior Court, supra, 54 Cal.3d at page 905.
The trial court found appellants’ original complaint failed to state a cause of action for IIED. The court stated the original complaint characterized Ludwick’s attitude toward appellants as one of indifference and lacked any allegations she intended to cause them emotional distress. In the first amended complaint, appellants introduced new revenge allegations in an attempt to show intent. The trial court found appellants were “reversing field in response to a legal ruling” by shifting from indifference to revenge and declared the first amended complaint a sham pleading.
The purpose of the sham pleading doctrine is to “defeat abuses of the privilege to amend.” A plaintiff may not “discard factual allegations of a prior complaint, or avoid them by contradictory averments, in a superseding, amended pleading.” In evaluating an amended complaint, the trial court can “function without blinkers and take note when pertinent of the entire history of the pleadings.” “The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham. [Citation.] The rationale for this rule is obvious. A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective. [Citation.]” After hearing counsel’s explanation of any inconsistency between the original complaint and the amended pleading, the trial court is “not bound to accept as true allegations contrary to factual allegations in [a] former pleading in the same case. [Citation.]”
Contreras v. Blue Cross of California (1988) 199 Cal.App.3d 945, 950.
Continental Ins. Co. v. Lexington Ins. Co. (1997) 55 Cal.App.4th 637, 646.
Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 709.
Berman v. Bromberg (1997) 56 Cal.App.4th 936, 946 [allegations concerning the party’s subjective intent were immaterial and not indicative of a sham pleading because objective intent controls interpretation of contracts].
Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.
Here, appellants’ allegations are internally inconsistent. The original complaint claimed Ludwick “was so deeply and selfishly in love with Sawyer that, despite the fact that she knew Sawyer was a sexual predator, preying on young girls did not matter.” Even though appellants struck this language from the first amended complaint, appellants’ other allegations in the first amended complaint still strongly support a motive of self-interest rather than revenge. For example, the first amended complaint maintains Ludwick “had fallen [] deeply and selfishly in love with Sawyer” and “knew that Sawyer was living with Wendy, but regardless, saw the opportunity to buy Sawyer’s love, to have Sawyer all for herself.”
Italics added.
The allegations in the original complaint further claimed Ludwick “selfishly helped Sawyer to remain free out of the reach of the law, not caring about all of the terrible things that Sawyer had done and the emotional harm he continued to cause these girls while he remained free.” Appellants struck and replaced this section with: “Defendant HEIDI LUDWICK knew of all the awful things Sawyer had done to these young girls, but with eyes wide open, without remorse, she consciously, knowingly, and selfishly hid Sawyer from the police until November 5, 2003, out of the law’s reach and thereby emotionally harm [sic] these girls while he remained free. She did this because HEIDI LUDWICK believed that these young girls had ruined her life by bringing sexual assault charges against Sawyer, by testifying against Sawyer at his preliminary hearings on January 16, 1997 and May 22, 1997 and causing him to be sent to prison for 14 years, making the normal life that she had dreamed of having with Sawyer impossible. As a result of these beliefs, HEIDI LUDWICK took revenge against these young girls by conceiving and engineering the plan to have Sawyer escape custody, and aiding and abetting Sawyer’s escape from going to prison and remaining at large so that the plaintiffs would continue to be psychologically terrorized throughout their adolescent years.”
Italics added.
The language of revenge in the first amended complaint was meant to contradict, but instead tends to bolster, the contention in the original complaint Ludwick’s primary motivation was in fact selfishness. Indeed, appellants continued to allege in the first amended complaint, “[N]one of this [knowledge] mattered to HEIDI LUDWICK, as long as her desire for Sawyer was satisfied by his continued presence at her side.” Rather than alleging new or different facts to develop the alleged revenge motive, appellants continue to emphasize Ludwick’s indifference towards them and her “intense” devotion to Sawyer as the motivation for her actions.
Italics added.
In attempting to explain how someone could be simultaneously vengeful and indifferent, appellants allege in the first amended complaint Ludwick “was both glad for and at the same time, indifferent to the emotional and psychological suffering the plaintiffs experienced because of her. . . . It did not matter to HEIDI LUDWICK in the least that she was stealing these girls’ joy. . . .”
In opposing the trial court’s finding the first amended complaint was a sham pleading, appellants’ counsel explained, “[the amended complaint] is not a sham so to speak and it clearly is a step in conjunction with and more explaining what you were looking for in the first ruling.” The court responded, “[A]n intention to harm and an attitude of indifference, they are two different things. They are two contrary things.” Counsel replied the indifference language in the original complaint referred to “indifference to the feelings of the person you are intending to harm” and “a callousness of a heart.” The trial court observed, “[W]hen you are seeking revenge, the last thing you are is indifferent about the feelings of your victim. You want to hurt them and you want to hurt them as bad [sic] as you can.”
We agree with the trial court. Even though appellants attempted to allege a revenge theory in the first amended complaint, the allegations Ludwick acted in her own self-interest still dominate the amended complaint. Because self-interest continues to be the driving force of the first amended complaint and appellants’ allegations of revenge make the first amended complaint internally inconsistent, we find the trial court did not abuse its discretion in finding the amended complaint constituted a sham pleading.
Vallejo Development Co. v. Beck Development Co., supra, 24 Cal.App.4th at page 947 [trial court did not abuse its discretion by concluding appellant’s proposed second amended complaint could not cure the insufficiency of prior pleadings].
III. EVEN IF THE ALLEGATIONS OF THE FIRST AMENDED COMPLAINT DID NOT MAKE IT A SHAM PLEADING, THE FIRST AMENDED COMPLAINT STILL FAILS TO STATE A VALID CLAIM FOR IIED.
Even if the allegations of the first amended complaint did not make it a sham pleading, the first amended complaint still fails to state a valid claim for IIED under either the “directed at” or recklessness variation of IIED.
The “directed at” variation of IIED “requires conduct which is especially calculated to cause and does cause the claimant mental distress of a very serious nature. [Citation.]” The “directed at” requirement was explored in Smith v. Pust. In Smith, a therapist had sexual relations with his patient and the patient’s husband sued the therapist for his ensuing emotional distress. The Court of Appeal wrote, “No doubt there have been times in human experience when the purpose of sexual relations with one person was ‘directed at’ that person’s spouse. This case, however, is not one of them.” If anything, the therapist’s conduct was directed at the wife, not her husband. As the Court of Appeal observed, “[The therapist] did not seek [the husband] out with the intent of regaling him with a description of the sexual conquest of [his] wife.” Finding the therapist’s actions were not “directed at” the husband, the Court of Appeal affirmed the trial court’s grant of summary judgment and dismissal of the husband’s claim for IIED.
Coon v. Joseph (1987) 192 Cal.App.3d 1269, 1273 [no recovery for plaintiff who witnessed an assault against his intimate friend because the conduct was not directed toward plaintiff personally].
Smith v. Pust (1993) 19 Cal.App.4th 263.
Smith v. Pust, supra, 19 Cal.App.4th at pages 266-268.
Smith v. Pust, supra, 19 Cal.App.4th at page 274.
See Smith v. Pust, supra, 19 Cal.App.4th at page 275 [“Nothing we say in this opinion should be construed as affecting any right of MaryBeth Smith to bring an action against Keith Pust.”].
Smith v. Pust, supra, 19 Cal.App.4th at page 274.
Smith v. Pust, supra, 19 Cal.App.4th at page 275.
In the same way, there are no allegations to suggest Ludwick sought appellants out with the intention of causing them emotional distress. Instead, the allegations of the first amended complaint overwhelmingly suggest Ludwick’s motives were purely selfish. Appellants allege Ludwick hid Sawyer, supported him financially, and helped facilitate his name change. Indeed, appellants do not allege they were even aware of Sawyer’s whereabouts or even knew about Ludwick’s involvement in concealing him. They allege only a general anxiety about Sawyer being on the loose. As for the box of clothes, there is also no indication Ludwick sent the box to court for the purpose of intimidating appellants. Moreover, appellants allege no facts to suggest they attributed any significance to the box of clothes at the sentencing hearing, e.g., that it was addressed to them, was specially identified as Sawyer’s clothing, or the like. In short, appellants have not alleged facts sufficient to show Ludwick’s conduct was especially calculated to cause and did cause the distress at issue.
The importance of a victim’s awareness of the outrageous act is underscored in the decision in Shin v. Kong. In Shin, a doctor artificially inseminated a woman without her husband’s knowledge. Four years later, when the husband found out his wife’s child was not his, he sued the doctor for IIED. The Court of Appeal stated, “Although the pain, humiliation and suffering experienced by appellant are palpably clear from the allegations of his complaint, he has stated no cause of action. . . .” Because the husband was not aware of the alleged outrageous act of artificially inseminating his wife, “[t]here is no indication or allegation that this action was directed at appellant in any way.” The Court of Appeal affirmed the trial court’s grant of summary judgment in favor of the doctor because the husband had not identified a legal theory allowing him to recover on the facts.
Shin v. Kong (2000) 80 Cal.App.4th 498, 512.
Shin v. Kong, supra, 80 Cal.App.4th at page 501.
Shin v. Kong, supra, 80 Cal.App.4th at page 512.
Shin v. Kong, supra, 80 Cal.App.4th at page 512.
Shin v. Kong, supra, 80 Cal.App.4th at page 512.
Shin v. Kong, supra, 80 Cal.App.4th at pages 512-513.
A review of the first amended complaint shows Ludwick’s conduct does not fall under the “reckless disregard” exception either. The “reckless disregard” variety of IIED requires a victim be present and witness the outrageous conduct in order to justify imposing a higher degree of culpability on the actor. Here, appellants were certainly not present while Ludwick allegedly planned the escape, hid Sawyer, purchased the gated estate, married Sawyer, or provided him with all he needed to survive. The only act appellants allege took place in their presence was Ludwick’s act of sending the box of Sawyer’s clothes to court. But sending the box of clothes, without more, is inadequate to state a claim for IIED on a reckless disregard theory. For example, the first amended complaint does not allege the box was marked, appellants knew the contents of the box, or there was anything on the box to trace it to Ludwick.
Christensen v. Superior Court, supra, 54 Cal.3d at page 906.
Appellants contend they could use the allegations Ludwick sent the box of Sawyer’s clothes to court to amend the complaint to assert a viable claim for liability predicated on recklessness. However, sending a box of clothes to court is not a sufficiently “outrageous” act to state a cause of action for IIED. Appellants repeatedly claim the cumulative effect of Ludwick’s acts renders her conduct outrageous, but the cases appellants cite for this point are distinguishable. In Newby v. Alto Riviera Apartments, the Court of Appeal found outrageous a landlord’s use of shouting, threats, and intimidation to evict an activist tenant who was educating other tenants about their rights. In Golden v. Dungan, the Court of Appeal stated reasonable men could “consider it outrageous to serve civil process by pounding on the door of a darkened home at midnight in a loud and boisterous manner which awakens the occupants and the neighborhood, all with the express intent of inflicting extreme mental suffering and duress upon the occupants. . .” In Fletcher v. Western National Life Insurance Company, the defendant insurance company conceded it had engaged in outrageous conduct by refusing to make payments under its policy and threatening litigation to induce plaintiffs to surrender their policy or disadvantageously settle a nonexistent dispute.
Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297-298.
Golden v. Dungan (1971) 20 Cal.App.3d 295, 310.
Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 393-394.
In this case, Ludwick’s conduct in sending an unidentified box of clothes to court does not approach the level of outrageousness described in the above decisions, and required for the purposes of stating a claim for IIED. Thus, appellants’ proposed amendment of alleging liability predicated on recklessness would still fail because the alleged act does not satisfy the requisite element of outrageous conduct.
See, e.g., KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1030 [holding television reporter’s disclosures to minors who did not yet know their playmates had been murdered by their mother in hopes of eliciting a “newsworthy” response constituted outrageous conduct].
See, e.g., Agarwal v. Johnson (1979) 25 Cal.3d 932, 947 [employer’s use of racial epithet to inflict mental distress and humiliation while terminating employee constituted outrageous conduct].
IV. THE TRIAL COURT PROPERLY FOUND APPELLANTS FAILED TO ALLEGE LUDWICK OWED A DUTY IN ORDER TO STATE A NEGLIGENCE CLAIM.
Appellants’ second cause of action in their first amended complaint was for negligent infliction of emotional distress. It incorporated by reference all prior paragraphs of the first amended complaint, including the entire IIED claim.
California does not recognize an independent tort of negligent infliction of emotional distress. “The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element.” Duty may be imposed by law, assumed by the defendant, or exist by virtue of a special relationship. Courts are careful to limit the scope of duty in negligence cases. “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” Both parties agree the only issue with regards to the negligence cause of action is whether the first amended complaint adequately alleged a duty.
Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.
Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at page 984.
Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590 [holding therapist owed a duty to mother to not molest her son in the course of a professional relationship involving both mother and son].
See Nally v. Grace Community Church (1988) 47 Cal.3d 278, 293 [refusing to impose a duty on nontherapist counselors to prevent suicide].
Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at page 985.
Appellants assert California case law, specifically Christensen and Burgess, support a finding of duty in this case. However, both cases are distinguishable. In Christensen, the mortuaries and crematoria defendants commingled human remains during cremation, harvested human organs from plaintiffs’ decedents without plaintiffs’ authorization, and sold the body parts for profit. The California Supreme Court found defendants had assumed a duty to those who had contracted for the defendant’s services to dispose of their decedents’ remains in an appropriate and dignified manner. In addition, the court held the class of close family members and those for whose benefit the services were rendered could recover damages for emotional distress engendered by knowledge of the negligent or intentional mishandling of their decedents’ remains, even though they themselves did not observe the misconduct firsthand.
Christensen v. Superior Court, supra, 54 Cal.3d at page 868; Burgess v. Superior Court (1992) 2 Cal.4th 1064.
Christensen v. Superior Court, supra, 54 Cal.3d at page 879.
Christensen v. Superior Court, supra, 54 Cal.3d at page 886.
Christensen v. Superior Court, supra, 54 Cal.3d at page 875.
In Burgess, a decision in a rather different context, the California Supreme Court held a mother was a “direct victim” of her obstetrician’s breach of the duty of care to avoid injuring her baby during delivery. The court found a mother could be compensated for emotional distress resulting from her obstetrician’s negligence. In addressing the public policy ramifications of expanding the scope of duty in negligence cases, the court analyzed the traditional factors for determining the existence of a duty, which appellants allege should govern this action: “the foreseeability of harm to the plaintiff, the degree of certainty that plaintiff suffered injury, the closeness of the connection between 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 the 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. [Citations.]”
Burgess v. Superior Court, supra, 2 Cal.4th 1064 at page 1076.
Burgess v. Superior Court, supra, 2 Cal.4th 1064 at page 1069.
Burgess v. Superior Court, supra, 2 Cal.4th 1064 at pages 1079-1080.
Because the facts of Christensen were so compelling and unique, the circumstances necessarily required special rules. Unlike the defendants in Christensen, however, Ludwick did not assume a duty toward appellants, contractually or otherwise, to turn Sawyer over to the police or to avoid acting in her self-interest. The situation in Burgess is also dissimilar. In Burgess, the defendant’s duty arose from the physician-patient relationship. There is no such professional relationship alleged in the present case to impose on Ludwick a duty to appellants to refrain from helping Sawyer escape detection.
Next, appellants claim Ludwick owed them a duty based on their special relationship. The “special relationship” appellants allege is based on their visits to Ludwick’s home for holidays, sleep-overs, BBQs, and other special occasions. They also allege Ludwick gave them gifts for their birthdays and at Christmas. However, appellants’ description of their relationship with Ludwick differs markedly from the cases finding a “special relationship” sufficient to impose a duty of care. The court in Christensen had already found the crematoria contracted with and thus “created a special relationship obligating them to perform those services in the dignified and respectful manner the bereaved expect from mortuary and crematory operators.” In Burgess, the defendant’s duty arose out of the special physician-patient relationship. Courts are careful to limit the imposition of duty based on a special relationship, even in cases of professional or close family relationships. For example, in declining to extend a duty to non-therapist counselors to prevent suicide, the California Supreme Court wrote, “Mere foreseeability of the harm or knowledge of the danger, is insufficient to create a legally cognizable special relationship giving rise to a legal duty to prevent harm.”
Christensen v. Superior Court, supra, 54 Cal.3d at page 891.
Burgess v. Superior Court, supra, 2 Cal.4th at pages 1079-1080.
Nally v. Grace Community Church, supra, 47 Cal.3d at page 297.
The relationships between Ludwick and appellants were neither contractual nor professional. Furthermore, the interactions appellants describe are generic and common to a wide range of relationships. Appellants’ allegations Ludwick knew of the possibility they would suffer emotional distress if Sawyer was on the loose are insufficient to establish a special relationship existed to give rise to a legal duty of care.
See Nally v. Grace Community Church, supra, 47 Cal.3d at page 297.
Alternatively, appellants cite Penal Code sections pertaining to conspiracy, willful failure to appear, harboring a fugitive, rape and child molestation, child abuse and neglect reporting, intentional harassment of a child, and being an accessory to a felony to establish a statutory duty. Although appellants concede Ludwick does not fall within the class of individuals required to report child abuse and neglect under California law, they contend the Penal Code sections referenced above “impose a general civil duty” that exposes Ludwick to tort liability.
Penal Code section 182. All further statutory references are to the Penal Code unless otherwise noted.
Sections 261, 261.5, 288, and 647.6.
Section 11164, et seq.
Sections 32 and 33.
Appellants cite Potter for the proposition a negligent infliction of emotional distress claim can be predicated on a duty imposed by statute. However, the plaintiffs in Potter sued Firestone directly under Water Code section 13350, subdivision (a) which, by its express terms, provided for civil liability. The Penal Code sections referenced above do not similarly contain a civil liability clause. Moreover, the Penal Code sections and child abuse reporting laws cited above do not create private rights of action. “It is the tort of negligence, and not the violation of the statute itself, which entitles a plaintiff to recover damages.” If Ludwick owed a duty under these statutory provisions, it was owed to the general public at large.
Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at page 985, footnote 9.
Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 430 [“an underlying claim of ordinary negligence must be viable before the presumption of negligence of Evidence Code section 669 can be employed . . . Thus, either the courts or the Legislature must have created a duty of care. The presumption of negligence created by Evidence Code section 669 concerns the standard of care, rather than the duty of care.”].
Appellants rely on Michael R. v. Jeffery B. to argue the Penal Code supplies the statutory duty necessary to expose Ludwick to tort liability. However, the application of the Penal Code in Michael R. differs significantly from appellants’ attempt to apply it in this case. In Michael R., a minor was struck in the eye and blinded by a marble from a slingshot. In addition to suing the shooter, the plaintiff sued the shooter’s friends on the theory they verbally encouraged, solicited, and conspired to injure him in violation of section 653, subdivision (f). In reversing the trial court’s grant of summary judgment, the Court of Appeal stated, “We adhere to the well-established principle that mere proximity to an assailant, even with knowledge of his assaultive tendencies, does not establish a relationship imposing a duty to control the assailant’s conduct. [Citation.] The special relationship doctrine, however, has no application if the plaintiff’s complaint, as here, is grounded upon an affirmative act of defendant which created an undue risk of harm. . . . [Citation.] Liability is not predicated upon [the friend’s] failure to intervene for the benefit of the victim but rather upon his creation of an unreasonable risk of harm to appellant. [Citations.]” The Court of Appeal found there was a triable issue of fact whether the shooter’s friends actively encouraged, solicited, or conspired to injure plaintiff in violation of section 653, subdivision (f) to constitute negligence per se.
Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1067.
Michael R. v. Jeffrey B., supra, 158 Cal.App.3d 1059 at page 1064.
Michael R. v. Jeffrey B., supra, 158 Cal.App.3d 1059 at page 1065.
Michael R. v. Jeffrey B., supra, 158 Cal.App.3d 1059 at pages 1070-1071.
Michael R. v. Jeffrey B., supra, 158 Cal.App.3d 1059 at page 1071.
Unlike the friends in Michael R., the first amended complaint does not allege Ludwick actively encouraged or conspired with Sawyer to molest appellants. The first amended complaint only alleges Ludwick posted Sawyer’s bail, hid him from police, provided for him financially, and facilitated his name change. Her conduct falls within the “well-established principle that mere proximity to an assailant, even with knowledge of his assaultive tendencies, does not establish a relationship imposing a duty. . . .” Accordingly, appellants’ reliance on Michael R. for imposing a duty is not well-placed.
Michael R. v. Jeffrey B., supra, 158 Cal.App.3d 1059 at page 1070.
Appellants failed to establish a duty existed on the basis of common law, statute, or by virtue of a special relationship. Thus, the trial court properly found appellants failed to state a viable cause of action for negligence.
DISPOSITION
The judgment is affirmed. Respondent to recover her costs of appeal.
We concur: PERLUSS, P. J., ZELON, J.