UNDERWOOD v. CROY

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Court of Appeal, Fourth District, Division 2, California.

David Leroy UNDERWOOD, et al., Plaintiffs and Appellants, v. John CROY, et al., Defendants and Respondents.

No. E011658.*

Decided: May 26, 1994

Robert S. Schlifkin, Los Angeles, for plaintiffs and appellants. Lewis, D'Amato, Brisbois & Bisgaard, and Louis R. Destefano, Los Angeles, for defendants and respondents.

OPINION

One afternoon in 1979, Julie Underwood (Aros) 1 went to the regular appointment with her marriage counselor/therapist, John Croy (defendant).   She never returned home to her family.   That family then consisted of husband, David Leroy Underwood, and minor sons, Aaron Shane Taylor Underwood and Kasey Cordell Underwood (plaintiffs).   In March of 1990, long after the marriage had been dissolved, plaintiff husband had occasion to speak with his former wife.   She confessed to what plaintiff husband had long suspected;  his former wife had had an affair with defendant therapist and that was the cause for leaving her family.

As a result of such confession, plaintiffs filed a complaint against defendant and others, none of whom are yet parties to the litigation, except Morongo Basin Mental Health Services Association, Incorporated (the clinic), defendant's employer at the time of the critical events.   Although not separately stated, such complaint appears to have been styled in three counts.   Two were pleaded in favor of plaintiff husband, one alleging that Aros was having a sexual relationship with defendant, which caused her to abandon the family, the other for negligent infliction of emotional distress.   The third count was pleaded in favor of plaintiff minors, also sounding in negligent infliction of emotional distress.

The case was resolved in the trial court in favor of defendant and his employer by means of summary judgment.   In giving its reasons for granting the motion for summary judgment, the trial court stated, “[t]he court finds as to plaintiff David L. Underwood that his causes of action are time barred under CCP sec. 340(3) [sic ].”  As to plaintiff minors, the trial court ruled that defendant, as their mother's therapist, owed them no duty of care with regard to unintentional infliction of emotional distress.

In our view, on the undisputed facts, the trial court for valid reasons properly granted the motion for summary judgment.   We shall affirm the judgment accordingly.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

As above noted, the complaint sets forth a melange of woes which, fairly summarized, told the following story.   Because of tensions in the marriage resulting from Aros's extra-marital affairs, she and plaintiff husband decided she should enter counseling with defendant.   Thereafter, “․ David Leroy Underwood developed a suspicion that the therapist, John Croy, was using his influence and control ․ to impose a personal and possibly sexual relationship upon [Aros].”  Nevertheless, upon assurances from Jane Yearwood, defendant's supervisor, that there could be no such relationship, plaintiff husband permitted Aros's therapy to continue.   Then came the fateful afternoon, as above noted, when “․ [Aros] abandoned her husband and her two minor children, causing severe emotional and psychological injury and distress.”   Otherwise, the complaint alleged that plaintiff husband “․ was fraudulently misled by the therapist, John Croy, and the supervising therapist, Jane Yearwood, and his ex-spouse [Aros].   All three conspired to conceal from [plaintiff husband] the fact of [Aros's] illicit affair with [defendant].”

Based upon these allegations, plaintiffs sought damages according to proof for:  (1) general negligence;  (2) intentional tort;  and (3) negligent infliction of emotional distress.

Both defendant and his employer answered, interposing general denials per Code of Civil Procedure section 431.30, subdivision (d) and alleging numerous affirmative defenses, including the bar of the statute of limitations as contained in both sections 340.5 and 340, subdivision (3), of the Code of Civil Procedure.   With the case thus at issue, defendant and his employer moved for summary judgment.   The motion was made on the grounds that (1) the “․ children are not appropriate parties to this action [because] none of the defendants had a duty to them, [and (2) ] that any cause of action for medical malpractice is barred by both the one-year and three-year statute of limitations embodied in Code of Civil Procedure Section 340.5, and that any cause of action for personal injury is time-barred by the statute of limitations embodied in Code of Civil Procedure Section 340(3) [sic ], ․”

In support of their motion, defendant and his employer filed a separate statement of 27 undisputed material facts, supported mostly by excerpts from plaintiff husband's deposition.   The only one of these 27 material facts disputed by plaintiffs was No. 27, that “Jane Yearwood did not make any misrepresentations to David Underwood about the alleged relationship between John Croy and Julie Aros.”   With reference thereto, the trial court, in its judgment, recited that “[t]he evidence cited by plaintiff[s] in opposition to the twenty-seventh fact does not support plaintiff[ ]s['] position.”   As a consequence, the trial court's evaluation of the motion was reduced to deciding whether defendant and his employer, in urging their motion, had made a prima facie showing of a complete defense to the several counts of plaintiffs' complaint.

In presenting their position to the trial court, defendant and his employer pointed to the fact that the former was a licensed marriage, family and child counselor at the time of the events complained of and that such licensees were later defined by statute as health care providers.   Based on this circumstance, they argued that the statute of limitations applicable to health care providers, section 340.5 of the Code of Civil Procedure, was dispositive and precluded any relief sought by plaintiff husband.

As for plaintiff minors, defendant and his employer pointed to the fact that defendant had never treated them, with the result that there was no special relationship between defendant and plaintiff minors existing at the time of the alleged critical events complained of.   Based on the absence of such relationship, defendant and his employer argued that plaintiff minors could not be direct victims of any alleged negligent conduct by defendant, citing Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278.   To bring closure to this phase of their argument, defendants contended, under Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, that unless plaintiff minors were direct victims, no liability to them for negligent infliction of emotional distress could attach.

In opposing the motion for summary judgment, plaintiffs argued that defendant's professionally licensed status was not defined by statute as a health care provider in 1979 when the critical events occurred.   Based on this contention, plaintiffs further argued that the only possible statute of limitations applicable was that contained in subdivision (3) of section 340 of the Code of Civil Procedure.   As to that section, plaintiffs contended that the one-year period of limitation did not begin to run until March of 1990, when plaintiffs actually learned the reason why their wife and mother had abandoned them.

Particularly, as to the count pleaded in favor of plaintiff minors, plaintiffs contended, in their opposition to the motion, that a special relationship had indeed been established between defendant and plaintiff minors.   As a result, they argued that defendant came under a duty to avoid conduct which would inflict emotional distress on them.   In making such argument, plaintiffs likewise relied on Molien and Marlene F.

The motion was the subject of extended and thorough oral argument, after which the matter was taken under submission.   There was no minute order ruling on the motion;  instead, it appears that the trial judge himself drafted the actual judgment by which his ruling on the motion was announced.   The judgment runs to 11 pages and represents an exemplary compliance with subdivision (g) of section 437c of the Code of Civil Procedure.

With reference to plaintiff husband's several claims, the judgment recited, “[t]he Court finds as to plaintiff David L. Underwood that his causes of action are time barred under CCP sec. 340(3) [sic ].   This one[-]year statute of limitations began to run in 1979/80.   The undisputed facts support this conclusion.   No purpose is served here by parroting back these facts.   They are incorporated by reference.   It is also undisputed that Croy has always and continues to deny any sexual misconduct with [Aros].   But, the plaintiff contends that he did not discover the cause of his injuries (Croy's affair with his wife) until 1990 when [Aros] told him about her sexual adventures with Croy in the course of their marriage counseling.  [¶] The parties do not dispute when sec. 340(3) [sic ] runs but only its application.   Both agree the statute begins to run when a plaintiff is aware of the injury and its negligent cause.  Jolly v. Eli Lilly [ & ] Company (1988) 44 Cal.3d 1103 [245 Cal.Rptr. 658, 751 P.2d 923].  It [is] undisputed that Mr. Underwood's injury commenced (presumably it is a continuing injury) when [Aros] left him early on in the counseling process after she and Croy established a sexual relationship.   He contends however that the negligent cause of this injury was not discovered until [Aros's] confession in 1990.  [¶] Discovery starts on the date a plaintiff either discovers or through the use of reasonable diligence should have discovered his injury.  Sanchez v. South Hoover Hospital (1976) 18 Cal[.]3d 93[132Cal.Rptr.657,553P.2d1129].  This Court concedes that generally the reasonability of plaintiff's belated discovery is a question of fact (Tresemer v. Barke (1978) 86 [Cal.App.]3d. 656 [150 Cal.Rptr. 384] ).  Consequently, in most cases summary adjudication would not be proper.   In this instance however plaintiff Underwood was convinced at the time that [Aros] was involved in an affair with Croy in the course of the therapy.   Even though she denied any thing [sic ] was going on[,] he did not believe her.   He could tell that she was lying.   He didn't discover the cause of his injury in 1990 when [Aros] admitted the affair.   What he did discover was that he now had a witness to prove that Croy had an affair with [Aros] in the course of marriage counseling if [Aros]/witness testified and was believed by the trier of fact at trial.  [¶] It does not appear to this court that the belated discovery rule extends to some indefinite and future time when a prospective plaintiff finds a witness or other evidence which he thinks will prove to a trier of fact that which he knew long before.   See Jolly v. Eli Lilly [ & ] Company [,] (supra ), and Rose v. Fife (1989) 207 [Cal.App.]3d 760 [255 Cal.Rptr. 440].”

With reference to the claim of plaintiff minors, the judgment recited, “[t]he last issue is whether the defendants owed a duty of care to the two minor children of the Underwood marriage who have sued in their own right ․ on the same causes of action as their plaintiff father․  [¶] Plaintiff seeks to show that a special relationship was established between the marriage counselor Mr. Croy and the entire Underwood family.   For example[,] Mr. Croy testified in part at his deposition that he certainly recognized that whatever affect his counseling might have on his clients, Mr. and Mrs. Underwood, it would also have an affect on their children and on their family life.   On the other hand, among the undisputed facts are that defendant Croy did not treat the Underwood children;  the only problems in the marriage when Underwood brought up the subject of counseling were that his wife was unhappy being a wife and a mother, she was bored and she had had affairs with men earlier in the marriage which were still giving Underwood some problems.  Marlene F. [,] supra, reiterates that the tort of negligent infliction of emotional distress in the context of psychotherapy does not rest only on the foreseeability of harm of those related to a patient but instead result[s] from a breach of duty owed the plaintiff that is assumed by the defendant or imposed on defendant as a matter of law or that arises out of a relationship between the two.  Marlene F.[,] supra[, 48 Cal.3d at] p. 590 [257 Cal.Rptr. 98, 770 P.2d 278] [sic ].  ․  [¶] The Supreme Court recently revisited the public policy considerations for finding a duty of care for the tort of negligent infliction of emotional distress in Burgess v. Superior Court (1992) [2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197].  In that case the plaintiff's child was stillborn because of the negligence of the attending physician.  (This was also a demurrer case and the allegations of the complaint were assumed to be true.)   The court found that a physician owes a duty to a pregnant woman with respect to the medical treatment provided her fetus in light of the physical and emotional realities that exist when an obstetrician and his patient enter into a physician/patient relationship.   The relationship is direct, interconnected and not ancillary.  [¶] The Underwood children in this instance are in a similar posture on a claim of negligent infliction of emotional distress that Mrs. Burgess's husband or her other children would be if they sought to recover emotional distress damages from the negligent delivering obstetrician.   It is certainly foreseeable that negligently inflicted harm to the fetus and that the loss of a potential sibling at child birth together with the understandable distress of the mother would impact the family unit.   Nevertheless case law has not extended the duty of care to these ancillary parties without a pre-existing relationship with the negligent tort feasor.  Burgess v. Superior Court, supra[,] [2 Cal.4th 1064, 1074] [9 Cal.Rptr.2d 615, 831 P.2d 1197].  It is in this fashion that the Supreme Court in Burgess has rationalized and backed away from its broad language in Molien v. Kaiser Foundation Hospital (1980) 27 Cal[.]3d 916 [167 Cal.Rptr. 831, 616 P.2d 813].  Both parties cited Molien [,] supra[,] in their respective briefs.   Plaintiff[s] with pride and defendants with alarm.   It appears that Burgess has so limited Molien that plaintiffs['] pride is now misplaced.  [¶] The bottom line is that the question of duty, a matter of law, is an issue of public policy.   Our appellate courts may wish to extend public policy to find a duty of care is owed by a marriage counselor to his patient's various relatives when his sexual exploitation of the patient destroys the marriage which he was retained to help preserve.   Such is not the law under existing authority.   The motion for summary judgment for the defendants and against the minor children through their guardian ad litem is granted.”

This appeal followed.

DISCUSSION

I.PLAINTIFFS' CONTENTIONS ON APPEAL(And Their Summary Refutation )

In pursuing their appeal, plaintiffs make two assignments of error.   With respect to plaintiff husband's claims, we interpret the convoluted question posed under “II” of the Table of Contents in plaintiffs' opening brief as reflecting a contention that plaintiff husband's suspicions in 1979 concerning Aros's sexual involvement with defendant were not sufficient to cause the statute of limitations to commence running.   Such contention is insupportable on this record;  as we shall explain, a proper application of relevant authority leads to the clear and unavoidable conclusion, reached by the trial court, that the one-year statute did begin to run on plaintiff husband's claim for negligent infliction of emotional distress when Aros abandoned the family in 1979.  (Infra.)

With respect to plaintiff minors' claims, likewise based on alleged negligent infliction of emotional distress, as we shall also explain, plaintiff minors were not direct victims of defendant's conduct with their mother.   As a result, they are not entitled to recover under such theory.   In short, no duty of care to avoid negligent infliction of emotional distress was ever owed plaintiff minors by defendant.  (Infra.)

II.

THE SUMMARY JUDGMENT FRAMEWORK

First, however, we are reminded that a summary judgment is here under review and that such review is governed by well-established rules evolved from application of section 437c of the Code of Civil Procedure.   As observed in Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 232 Cal.Rptr. 458, “[w]e apply the same three-step analysis required of the trial court:  ‘First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond․  [¶]  Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor․  [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.’ ”  (Id. at pp. 1400–1401, 232 Cal.Rptr. 458.)   Once the court has considered the filings before it and found that there are no triable issues of fact presented therein, the ruling on the motion for summary judgment becomes a determination of an issue of law which the court must make.  (Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 108, 202 Cal.Rptr. 30;  Code Civ.Proc., § 437c.)

“ ‘[A] motion by a defendant under section 437c of the Code of Civil Procedure necessarily includes a test of the sufficiency of the complaint․   Motions for summary judgment in such situations have otherwise been allowed as being in legal effect motions for judgment on the pleadings.’  [Citation.]”   (Robinson v. Hewlett–Packard Corp. (1986) 183 Cal.App.3d 1108, 1131, 228 Cal.Rptr. 591, original emphasis.)

The foregoing scenario, in substantial effect, is what we have here.   There were no triable issues of material fact raised by plaintiffs in the trial court.   As a consequence, that court was called upon to resolve the motion for summary judgment by testing the sufficiency of plaintiffs' complaint, minimally amplified however by brief excerpts of plaintiff husband's own deposition which operated to clarify and particularize but not alter the theories of the complaint.

III.

FOR PURPOSES OF THIS ACTION, DEFENDANT WAS NEVER A HEALTH CARE PROVIDER

Although plaintiff husband's claims were disposed of by the trial court under subdivision (3) of section 340 of the Code of Civil Procedure, defendant's position in urging the motion for summary judgment in the trial court was that the case was controlled by Code of Civil Procedure section 340.5.   That section deals with actions against health care providers.   The trial court, in its judgment, commented at length about several possible theories under which this latter section might apply and then rejected all such possibilities.   In particular, the court ruled that “plaintiffs' causes of action do not fall within the ambit of CCP sec. 340.5 [sic ]․”

In such ruling, the trial court was eminently correct.   In 1979, licensed marriage and family counselors were not included within that group of licensees delineated as “health care providers” under pertinent provisions of the Business and Professions Code.   However, in 1983, such provisions were amended to include as licensees those in the group to which defendant belonged.  (Bus. & Prof. Code, § 4980, et seq.)   Relying on the language and purpose of the earlier enacted MICRA 2 legislation, Civil Code section 3333.2, and citing Stout v. Turney (1978) 22 Cal.3d 718, 727, 150 Cal.Rptr. 637, 586 P.2d 1228, defendant argued to the trial court that “[w]hen the Legislature changes the law regarding the measure of damages, that change impacts pending litigation even though the operative facts occurred and the right to recover arose before that enactment.”

 What the foregoing argument appears to assume is that plaintiff husband was a victim of defendant's professional malpractice as a health care provider.   Such assumption flies in the face of Code of Civil Procedure section 364, subdivision (f)(2), which defines professional negligence by a health care provider with reference to when actions against such professionals may be commenced.   The pertinent language states, “(2) ‘Professional negligence’ means negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury․”   The foregoing definition operates to limit the victims of professional negligence to those who have suffered personal injury at the hands of a health care provider.   For purposes of this action and as a matter of general application, as explained infra, we hold that negligent infliction of non-physical purely emotional distress does not result in a personal injury.   In short, plaintiff husband never had a cause of action against defendant based on professional negligence 3 .

IV.

PLAINTIFF HUSBAND'S EFFORT TO PLEAD A CAUSE OF ACTION FOR ALIENATION OF AFFECTION IS BARRED BY CIVIL CODE SECTION 43.5, SUBDIVISION (a)

Otherwise, plaintiff husband has no cause of action on the pleaded facts, based on the allegation that Aros abandoned the family because she had had “a sexual relationship with the [defendant].”  Actions for alienation of affection were abolished in this state back in 1939 with the enactment of subdivision (a) of section 43.5 of the Civil Code.   However, in our view, the question remains open whether plaintiff husband, despite that provision of the Civil Code and because of Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, and Burgess v. Superior Court (1992) 2 Cal.4th1064,9Cal.Rptr.2d615,831P.2d1197, yet has a cause of action, on these facts, for negligent infliction of purely emotional distress.

V.

PLAINTIFF HUSBAND'S CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS IS BARRED BY CODE OF CIVIL PROCEDURE SECTION 340, SUBDIVISION (3)

 Accepting only for purposes of analysis that plaintiff husband potentially has a claim for negligent infliction of emotional distress, we turn to an evaluation of such claim.   To do so, we can now apply the two-step test, announced in Bro v. Glaser (1994) 22 Cal.App.4th 1398, 27 Cal.Rptr.2d 894 (hereinafter Bro ).   The first prong of that test calls for inquiring whether, at the time of the offending conduct, there had been a preexisting, consensual relationship between the parties.   The purpose of such inquiry is to determine whether, under Burgess v. Superior Court, supra, 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197, plaintiff husband can qualify as a direct victim.  (Bro, supra, 22 Cal.App.4th at p. 1416, 27 Cal.Rptr.2d 894.)   As the law now stands, one cannot recover on a claim for negligent infliction of emotional distress in non-bystander cases unless he or she has first qualified as a direct victim.  (Bro, supra, 22 Cal.App.4th 1398, 1407, 27 Cal.Rptr.2d 894.)

A.

Plaintiff Husband Was A Direct Victim Of Defendant's Conduct With Aros

 On the undisputed facts here, there clearly was a preexisting, consensual relationship between plaintiff husband and defendant.   Although defendant was not treating plaintiff husband as his (defendant's) patient, the former had concurred in the decision that Aros be counseled by defendant.   Otherwise, an inference can be drawn that defendant was being compensated with the Underwood family's community funds, disbursement of which must have been with plaintiff husband's specific or at least tacit approval.   Yet otherwise, plaintiff husband had concurred in the decision that Aros continue counseling with defendant even though suspicious conduct between Aros and defendant had occurred at the clinic.   Thus, plaintiff husband qualified as a direct victim.   As such, he is entitled to consideration of whether he could recover as a result of defendant's negligent infliction of emotional distress (Burgess v. Superior Court, supra, 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197), as analyzed under the second prong of the Bro test.

B.

Whether Defendant's Conduct Was Sufficiently Outrageous To Fix Liability Is A Triable Issue Of Fact

The second prong of the test requires an inquiry into the nature of the defendant's conduct.   The purpose of such inquiry “is to measure the outrageousness of such conduct in order to determine whether it has risen to that level where, as a policy matter, liability shall attach.”  (Bro, supra, 22 Cal.App.4th 1398, 1440–1441, 27 Cal.Rptr.2d 894, original emphasis.)   Absent defendant's raising the statute of limitations defense, application of the second prong of the Bro test would have clearly demonstrated a triable issue of material fact, namely, whether defendant's conduct was sufficiently outrageous to fix liability, thus requiring a denial of the motion for summary judgment as to this count.  (Id. at p. 1441, 27 Cal.Rptr.2d 894.)   Hence, without defendants' assertion of the statute of limitations, the trial court would have denied the motion for summary judgment on this count.

C.

The Statute Of Limitations Began To Run When Aros Abandoned The Family

 Since the Supreme Court decision in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, claims for purely emotional distress have been held actionable in certain limited circumstances.  (See Bro, supra, 22 Cal.App.4th 1398, 1444, 27 Cal.Rptr.2d 894, for a classification of 26 Post–Molien cases.)   Such a claim, as above noted, is not a personal injury in the traditional tort sense.4  Nevertheless, for purposes of the statute of limitations, a claim for purely emotional distress can be characterized as an “injury ․ caused by the wrongful act or neglect of another, ․”  (Code Civ.Proc., § 340, subd. (3).)  As a consequence, precedents which deal with application of this one-year statute are also dispositive of claims for negligent infliction of emotional distress.

More particularly, plaintiff husband's claim must be measured against the rule confirmed in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 245 Cal.Rptr. 658, 751 P.2d 923.   In that case, in affirming a summary judgment entered against plaintiff in the trial court, the Supreme Court held that a plaintiff, in a suit for personal injury caused by a defective drug, who suspected wrongdoing but was unaware of specific facts establishing the wrongful conduct on the part of the drug manufacturer, may not delay bringing an action until such time as she discovers the material facts and their legal significance.   In sum, the action was held to be barred by Code of Civil Procedure section 340, subdivision (3).   As observed in Jolly, “․ both sides agree that the one-year limitations period of section 340, subdivision (3) applies to this case.   Both sides also agree that the common law rule, that an action accrues on the date of injury [citation], applies only as modified by the ‘discovery rule.’   The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause.  [Citation.]   A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.  [Citation.]   The parties differ as to what constitutes sufficient knowledge to start the statute running.”  (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923, fn. omitted, citing Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99, 132 Cal.Rptr. 657, 553 P.2d 1129.)

So it is here.   The trial court perceived the case as falling within the Jolly rationale, based not only on actual knowledge but also on “knowledge that could reasonably be discovered through investigation of sources open to [plaintiff husband].”  (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923.)   Defendant's statement of undisputed material facts, filed in support of the motion for summary judgment, included:  “1.   The only problems in the marriage when Underwood brought up the subject of counseling were that Aros was not happy being a wife and mother, was bored, and that she had had an affair with someone earlier in the marriage which was still giving Underwood some problems․  [¶] 2.   The particular incident which led Underwood and Aros to seek counseling was another affair․  [¶] 4.   Underwood had told Yearwood about his suspicion that Aros was having an affair with Croy within a few sessions․  [¶] 5.   Underwood told Yearwood about the time he walked in on a session and the way that Aros and Croy reacted.   Underwood told her that he thought there may have been something more than a doctor/patient relationship․  [¶] 12.   Even after Yearwood said that she did not believe an affair had occurred, Underwood was still suspicious․  [¶] 15.   Underwood became suspicious of Croy during the therapy․  [¶] 16.   Underwood was suspicious that Croy and Aros were having an affair․  [¶] 17.   Underwood felt Aros'[s] relationship with Croy might be getting beyond a professional relationship․  [¶] 18.   Underwood asked Aros what had happened in the office when he walked in on Aros and Croy․  [¶] 20.   When Aros told him that nothing had occurred between her and Croy, he did not believe her.   Underwood knew when she wasn't telling the truth.”  ․  [¶] 21.   Underwood talked to Aros about his suspicions because he was concerned about an affair occurring․”

All of this in the aggregate amounts to justification for a reasonable if not obvious suspicion, with which plaintiff husband must be legally charged, that Aros was lying when she denied any sexual involvement with defendant.   For reasons which remain unexplained by the record, plaintiff husband apparently believed that there was nothing he could do about his suspicion.   However, the law is otherwise.   In the language of Jolly, when Aros abandoned the family, precipitating the emotional distress, plaintiff husband, as noted, was thereupon at once charged with “knowledge that could reasonably be discovered through investigation of sources open to [him].”  (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923).   Thus, we agree with the recitation in the trial court's judgment that plaintiff husband's cause of action was “time barred under CCP sec. 340(3) [sic ].”

VI.

PLAINTIFF MINORS WERE NOT DIRECT VICTIMS OF DEFENDANT'S CONDUCT WITH THEIR MOTHER

 Turning to plaintiff minors' claims for negligent infliction of emotional distress and again applying the first prong of the two-step test announced in Bro, supra, 22 Cal.App.4th 1398, 27 Cal.Rptr.2d 894, we reach the inescapable conclusion that plaintiff minors were not direct victims of any possible negligent behavior by defendant.

There Was No Preexisting, Consensual Relationship Between Defendant And Plaintiff Minors

Plaintiff minors were not direct victims of defendant's unprofessional conduct because there was no preexisting, consensual relationship between them and defendant.   Although the complaint alleged that the Underwood spouses had consulted defendant “to obtain counseling for themselves and their minor children,” it was factually developed without dispute, in support of the motion for summary judgment, that “22.  [Defendant] did not treat the Underwood children.”

These facts substantially replicate what happened in Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 10 Cal.Rptr.2d 748.   In Evan F., two minors, brother and sister, brought suit against a church and its parent organization following the sexual molestation of the boy by the church's pastor and the later molestation, in turn, of his sister by the boy, by means of the phenomenon of “acting out” upon her.   The case proceeded on several theories, the principal such theory being defendant church's alleged negligent hiring of the pastor.   The other, relied upon only by the minor sister, was negligent infliction of emotional distress upon her by the pastor.

The case was resolved in the trial court by summary judgment in favor of the defendant church and its parent organization.   On appeal, the reviewing court reversed as to the minor brother's action for negligent hiring.   However, the judgment was affirmed as to the minor sister's action for both negligent hiring and negligent infliction of emotional distress.

With reference to the minor sister's action, based on negligent infliction of emotional distress, Evan F. rationalized the result it reached by first observing that the minor sister was not present at the time the pastor molested her brother;  hence, the facts did not present a “bystander” occasion for liability.  (Evan F. v. Hughson United Methodist Church, supra, 8 Cal.App.4th 828, 839, 10 Cal.Rptr.2d 748.)

Beyond the “bystander” theory, the minor sister alleged that “[i]t was reasonably foreseeable and easily predictable that defendants' actions, counseling and sexual molestation of Evan [F.] would lead to serious emotional distress for [the minor sister]․”  (Ibid.)   In arguing for liability under such allegation, the minor sister relied upon Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278.   The court in Evan F. readily distinguished the case before it from Marlene F., noting that the facts in Evan F. showed that the pastor's actions were not directed toward the minor sister.   In doing so, the court invoked Burgess v. Superior Court, supra, 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197, and its definition of a direct victim as one who had had a preexisting relationship with the defendant.   In particular, the Evan F. court stated, “․ [the defendants'] conduct regarding [the pastor's] molestation of Evan does not implicate a relationship such that the conduct can be considered directed against [the minor sister].”  (Evan F. v. Hughson United Methodist Church, supra, 8 Cal.App.4th 828, 840, 10 Cal.Rptr.2d 748.)   Therefore, the decision in Evan F. represents an application of the rule in Burgess that a plaintiff in a negligence action is not entitled to damages for purely emotional distress unless it be shown that the plaintiff was a direct victim of that negligence by reason of a preexisting consensual relationship between the plaintiff and the defendant.  (Bro, supra, 22 Cal.App.4th 1398, 1416, 27 Cal.Rptr.2d 894.)

Just as Evan F.'s sister Eyrene was not a direct victim of the sexual molestation of her brother by his therapist, so the plaintiff minors here were not the direct victims of the illicit sexual relationship between their mother and her therapist.   Based upon this result, we need not reach the second question of the Bro test, i.e., whether defendant therapist's conduct was sufficiently outrageous as to fix liability.

VII.

SUMMARY OF HOLDINGS

Reflecting the foregoing analysis, the trial court ruled by implication, in discounting the application of Code of Civil Procedure section 340.5, that plaintiff husband had no claim against defendant for professional negligence.   The trial court went on to rule, nevertheless, that plaintiff husband's claim for negligent infliction of emotional distress was barred by the one-year limitation contained in subdivision (3) of section 340 of the Code of Civil Procedure.   Otherwise, the trial court ruled that plaintiff minors, who were not direct victims, had no actionable claims because defendant owed them no duty of care.   More particularly, plaintiff minors had no protected interest in being free of emotional distress unintentionally caused by the illicit conduct of defendant with their mother, even assuming it could have been found to be outrageous under the second prong of the test.  (Bro v. Glaser, supra, 22 Cal.App.4th 1398, 1441, 27 Cal.Rptr.2d 894.)   As earlier noted, we agree with both such trial court rulings 5 and adopt them as our holdings.

DISPOSITION

The judgment appealed from is affirmed.

FOOTNOTES

FOOTNOTE.  

McDANIEL, Associate Justice.* FN* Retired Associate Justice of the Court of Appeal, Fourth District, senior judge status (Gov.Code, § 75028.1), sitting under assignment by the Chairperson of the Judicial Council.

HOLLENHORST, Acting P.J., and McKINSTER, J., concur.