OCHOA v. COUNTY OF SANTA CLARA (1983)

This is a proceeding for a writ of mandate.   Petitioners, Raul and Gloria Ochoa, are parents of deceased minor Rudy Ochoa, who died while in the custody of Santa Clara County Juvenile Hall.   They are plaintiffs below in an action brought against the County of Santa Clara and four of its employees (real parties in interest herein) over the death of their son, allegedly from an illness caused by real parties' failure to provide him with a suitable living environment and adequate medical care during his confinement at the juvenile hall.   In their application for a writ of mandate, petitioners seek to have set aside an order of the trial court sustaining without leave to amend real parties' demurrers to the fifth, sixth, eighth and ninth causes of action of their original complaint.   The ground for sustaining the demurrers was failure to state facts sufficient to constitute a cause of action.

BACKGROUND FACTS

The original complaint was filed on May 7, 1981, following prerequisite presentation of a claim to the County of Santa Clara (County) and County's rejection of same.  (See Gov.Code, §§ 910, 911.2, 945.4, 950.2 and 950.6, subd. (a).)  Named as defendants were County and the following individuals, allegedly agents and employees of County:  physician Stanley Lourdeaux, M.D. (Lourdeaux), and registered nurses Paul Works (Works), LaVonne Zuckswerth (Zuckswerth) and Karen Dozier (Dozier).   The complaint set forth nine causes of action.

All defendants interposed demurrers to the fifth through ninth causes of action on the ground that the complaint failed to state facts sufficient to constitute a cause of action.  (Code Civ.Proc., § 430.10, subd. (e).)  After a joint hearing on the demurrers, the court, on March 26, 1982, ordered the demurrers sustained without leave to amend.

On May 21, 1982, petitioners filed the instant petition in this court, seeking mandate to compel respondent court to set aside its March 26th order insofar as it sustained, without leave to amend, the demurrers of real parties Lourdeaux, Works, Zuckswerth and Dozier to the fifth, sixth, eighth and ninth causes of action of the complaint.   Petitioners do not challenge the sustaining of the demurrers with respect to the seventh cause of action, nor do they challenge the sustaining of County's demurrer to any of the fifth through ninth causes of action, which demurrer was sustained, at least in part, on the immunity afforded by Government Code section 844.6.

Real parties filed a return to the writ petition on May 26, and this court denied the petition without opinion on December 15, 1982.

 On December 27, 1982, petitioners filed a petition for hearing in the Supreme Court.   That court granted the petition on February 3, 1983, transferring the cause to itself and retransferring it to this court with instructions to issue an alternative writ.   By that action, the Supreme Court necessarily determined, for the purpose of further proceedings in this court, that petitioners have no adequate remedy at law and that extraordinary relief is therefore appropriate.  (O'Connor v. Superior Court (1979) 90 Cal.App.3d 107, 110, 153 Cal.Rptr. 306;  Department of General Services v. Superior Court (1978) 85 Cal.App.3d 273, 279, 147 Cal.Rptr. 422;  Code Civ.Proc., § 1086;  see People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 492, 96 Cal.Rptr. 553, 487 P.2d 1193.)   We ordered issuance of an alternative writ of mandate on March 1, and the writ issued as prayed on March 3, 1983.

All four causes of action here at issue incorporate by reference the following core set of relevant facts from other causes of action:  Santa Clara County Juvenile Hall and its infirmary are owned, operated and supervised by County;  physician Lourdeaux and nurses Works, Zuckswerth and Dozier were employees and agents of County.   On or about March 23, 1981, while in the custody and care of the juvenile hall, decedent became ill with “cold-like symptoms” caused by his confinement in uninhabitably cold living quarters.   On or about March 23 and 24, 1981, decedent was admitted to the infirmary for care and treatment of an illness eventually diagnosed as bilateral pneumonia, but real parties negligently failed to timely and properly diagnose and treat the illness, which negligent conduct proximately resulted in decedent's death on March 26, 1981, from the illness.   Symptoms of the illness included “extremely high fever, chills, convulsions [and] hallucinations․”

Also common to the four causes of action are allegations from the complaint that real parties knew or should have known the seriousness of the illness;  that they acted with extreme recklessness and carelessness in the care and diagnosis of a seriously ill patient;  that they “knew that deceased's mother ․ was present with her son” at the juvenile hall infirmary;  that she “pleaded with [them] to treat her son or allow her to take [him] to [their] family physician”;  and that they acted in “utter, wanton, and conscious disregard of the rights and safety of decedent ․ and of [petitioners].”

Also alleged in each cause of action are matters incorporated by reference from the claim presented to County.¹  While not a model of concision or objectivity,² the claim offers the following, mostly chronological amplification of events important to discussion of the issues.

“On Tuesday, March 24, 1981, at approximately 1:00 P.M. decedent was visited by his father and mother, Raul and Gloria Ochoa, Claimants herein, and observed by said parents to have been extremely ill, pale, holding his left side under his left lung attempting to relieve extreme localized pain.   He complained to his parents of being extremely ill and of having been told that he had a ‘bug’.   Gloria Ochoa expressed concern to the personnel of Juvenile Hall that their child was not receiving appropriate and necessary medical care for his apparent illness despite attempts by Juvenile Hall authorities to reassure them to the contrary.   The sight and circumstances of their extremely ill child did cause Gloria and Raul Ochoa extreme mental and emotional distress at that time and continuing thereafter.

“At approximately 9:30 A.M. on March 25, 1981, the decedent was admitted to the Juvenile Hall Infirmary with an eventual diagnosis of bilateral pneumonia and a temperature soaring to 105 degrees.   In the early afternoon of Wednesday, March 25, 1981, Gloria Ochoa again visited her child and at that time found him lying on a bed in the Infirmary extremely pale, his lips white and dehydrated, his skin clammy and sweaty, his eyes rolling and body twitching in what appeared to her to be the beginnings of a convulsion.   Her son was hallucinating during most of the visit, however, during lucid moments the decedent complained of being very, very sick and in pain.   Claimant Gloria Ochoa was very distressed and concerned and requested of the authorities to be allowed to take her sick child to her own physician.   She expressed willingness to cooperate in any manner they desired so long as the child could be seen by the family physician.   Gloria Ochoa was then seen by the alleged attending physician, Stanley Lourdeaux, M.D., and assured that her son had only a flu and that he should be left there.   Her son, the deceased, repeatedly requested of his mother, Gloria Ochoa, that he be taken to a private doctor.   Gloria Ochoa repeatedly requested that arrangements be made to release her son to her to be seen by the family physician or in some manner or form take him to the family physician, but was advised that she would have to wait until the following morning to discuss the problem with the Probation Officer.   Dr. Lourdeaux advised Gloria Ochoa that her son would be given a penicillin shot.   Claimant then returned to her son and found him complaining of excruciating severe pain under his left rib cage which was tender to touch when she attempted to comfort him.   Again, Gloria Ochoa went to the attending nurses on duty requesting that her son be released to her private doctor ‘even if handcuffed’.   Three attending nurses were there ․ who denied her request.   Gloria Ochoa then gave the nurses her telephone number requesting that she be called immediately if her son got any worse and that she be kept informed of his condition, and thereupon returned to attend to her son again․  At approximately 2:00 P.M. Gloria Ochoa was advised by personnel in authority at the Infirmary to leave.   She ignored their request desiring to continue to attend to her very sick child by applying cold water compresses and attempting to assure him.   Her child repeatedly requested that she not leave and that she stay with him.   During this time she attempted to roll her son over on his side when he yelled and screamed complaining of the excruciating pain in his chest area and asked that the doctor be called and told of the pain on particularly the left side.   The doctor was called but did not attend to her sick son while she was present.   Throughout her child was vomiting and unable to retain any fluids.   Again, authorities at the Juvenile Hall Infirmary insisted that she leave her son, whereupon she bent down to kiss him and her son clasped her tightly and pleaded that she not leave him because he was so sick.   She told him the doctor had assured her he would tend to him and she was thereupon required to leave her son's room.   Gloria Ochoa then returned to Dr. Lourdeaux and again pleaded that her son be allowed to be treated by the family physician and removed from the facility therefor.   Juvenile staff personnel observed her son coughing up blood.   During all of said time Gloria Ochoa experienced extreme mental and emotional distress and concern for her son and for the apparent outrageous neglect of medical care and attention while she was present․

“Decedent RUDY CRUZ OCHOA was seen by the attending physician, Dr. Lourdeaux only once on Tuesday, March 24, 1981 and on only one occasion at approximately 10:30 A.M. on Wednesday, March 25, 1981 after which neither Dr. Lourdeaux nor any other physician saw, examined or attended to decedent until his death at approximately 1:05 A.M. on Thursday, March 26, 1981.

“At no time during the above was the deceased child ever transferred to the Intensive Care Unit of any hospital facility;  nor were any radiological studies of any type or manner performed despite the repeated communications of pain and distress below the rib cage, particularly on the left side;  nor were any blood or urine studies performed to attempt to ascertain the offending organism in order that appropriate antibiotic or other therapeutic treatment might be administered.   The deceased's mother, Gloria Ochoa, was never called concerning her child's deteriorating condition, nor ever allowed to exercise her parental right to provide outside medical care.”

DISCUSSION

In ruling on a demurrer, the allegations of the complaint are to be liberally construed in favor of the pleader.  (Skopp v. Weaver (1976) 16 Cal.3d 432, 438, 128 Cal.Rptr. 19, 546 P.2d 307;  Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59, 35 Cal.Rptr. 652.)  “The function of a demurrer is to test the sufficiency of a complaint as a matter of law, and it only raises questions of law.”  (Banerian v. O'Malley (1974) 42 Cal.App.3d 604, 611, 116 Cal.Rptr. 919.)   Whether the pleader will be able to prove the allegations made is immaterial because, as against a demurrer, the allegations of the complaint must be taken as true.   All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief, and a reviewing court is confined to the allegations in the complaint.  (See Shaeffer v. State of California (1970) 3 Cal.App.3d 348, 354–355, 83 Cal.Rptr. 347, and cases cited therein.)

Whether to grant leave to amend in sustaining a demurrer lies within the sound discretion of the trial court.  “ ‘Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.   [Citation.] ․  However, the burden is on the plaintiff to demonstrate that the trial court abused its discretion.  [Citations.]  Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.  [Citation.]’ ”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737, quoting from Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636, 75 Cal.Rptr. 766, 451 P.2d 406, cert. den., 396 U.S. 821, 90 S.Ct. 62, 24 L.Ed.2d 64.)  “Leave to amend is properly denied if the facts and nature of plaintiff's claim are clear and under the substantive law, no liability exists․”  (Haskins v. San Diego County Dept. of Public Welfare (1980) 100 Cal.App.3d 961, 965, 161 Cal.Rptr. 385.)

I. The “survival” action for cruel and unusual punishment

We examine first the sixth cause of action, a “survival” action brought under Probate Code section 573 by petitioner Gloria Ochoa as special administratrix of decedent's estate.   In addition to the core set of facts set forth ante, it alleges that the “callous and deliberate indifference” of real parties “to the serious medical and physical needs of decedent” constituted cruel and unusual punishment under the federal and state Constitutions, and that such conduct is actionable under 42 United States Code section 1983 (hereinafter “section 1983”).³

 Both the Eighth Amendment of the federal Constitution ⁴ and article I, section 17, of our state Constitution ⁵ proscribe the infliction of cruel and unusual punishment.

In Estelle v. Gamble (1976) 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, the United States Supreme Court reviewed prior federal decisional law and concluded that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ ․ proscribed by the Eighth Amendment,” and noted that such deliberate indifference could be manifested “by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.”  (Id., at pp. 104–105, 97 S.Ct., at p. 291, quoting from Gregg v. Georgia (1976) 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, fns. omitted.) ⁶  The court cautioned, however, that, “in the medical context, an inadvertent failure to provide medical care” cannot constitute a cognizable claim of medical mistreatment under the Eighth Amendment, nor could “a complaint that a physician has been negligent in diagnosing or treating a medical condition․”  (Id., at pp. 105–106, 97 S.Ct. at p. 292.)   “Medical malpractice,” warned the court, “does not become a constitutional violation merely because the victim is a prisoner.   In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”  (P. 106, 97 S.Ct. p. 292.)

Ultimately, the court in Estelle decided that the plaintiff's claims against the treating physician, Dr. Gray, were not cognizable under section 1983.   The claim was based on lack of diagnosis and inadequate treatment of plaintiff's back injury.   The court, however, noted that he had been seen by medical personnel a total of some 17 times about the injury over a 3-month period, that the question whether to employ additional diagnostic techniques or forms of treatment was “a classic example of a matter for medical judgment,” and that such a medical decision was, at most, medical malpractice, not cruel and unusual punishment.  (429 U.S. at p. 107, 97 S.Ct. at p. 293.)

 Applying Estelle to this case, the question becomes, “Have petitioners alleged sufficient facts to show deliberate indifference to serious medical needs of decedent?”   We believe so under a liberal construction of the complaint's allegations.

 Accepting, as we must, the truth of the following allegations, there can be no doubt that decedent evidenced serious medical needs.   Petitioners visited him on Tuesday the 24th and found him to be “extremely ill, pale [and] holding his left side under his left lung attempting to relieve extreme localized pain.”   Gloria Ochoa brought this to the attention of juvenile hall personnel, and Lourdeaux saw decedent on that day.   There is thus no doubt that decedent's symptoms were known to at least some real parties as early as Tuesday.   His symptoms grew worse by Wednesday, when Gloria next saw him.   He had been admitted to the infirmary that morning, and Gloria observed him that afternoon to be “extremely pale, his lips white and dehydrated, his skin clammy and sweaty,” and nearly convulsing.   He was hallucinating, complained of being very sick and in pain, had a temperature of 105 degrees, was vomiting, and was coughing up blood.   Gloria again informed the juvenile hall personnel, and Lourdeaux saw decedent that morning.   Those allegations satisfy the test of “serious medical need” as being “one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.”  (Laaman v. Helgemoe (D.N.H.1977) 437 F.Supp. 269, 311.)

 The crucial question is whether real parties' conduct was merely negligent or amounted to “deliberate indifference” to decedent's obviously serious condition.   We conclude that their conduct, under the particular facts alleged, rose to the level of deliberate indifference, going far beyond mere “inadvertent failure to provide adequate medical care” and mere “negligen[ce] in diagnosing or treating a medical condition.”  (Estelle v. Gamble, supra, 429 U.S. 97, 105–106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251;  for examples of post-Estelle decisions applying that distinction, see Hurst v. Phelps (5th Cir.1978) 579 F.2d 940, 942;  Gahagan v. Pennsylvania Bd. of Probation & Parole (E.D.Pa.1978) 444 F.Supp. 1326, 1330;  Laaman v. Helgemoe, supra, 437 F.Supp. 269, 311.)

Real parties argue that the pleaded facts of this case fall within the realm of medical negligence, pointing to allegations that decedent did in fact receive a diagnosis and some treatment.   This overlooks the nature of the treatment rendered, which appears from the complaint to have been “so woefully inadequate as to amount to no treatment at all.”  (Westlake v. Lucas (6th Cir.1976) 537 F.2d 857, 860–861, fn. 5;  Tolbert v. Eyman (9th Cir.1970) 434 F.2d 625, 626;  Sturts v. City of Philadelphia (E.D.Pa.1982) 529 F.Supp. 434, 438;  Mayfield v. Craven (E.D.Cal.1969) 299 F.Supp. 1111, 1113, affd., (9th Cir.1970) 433 F.2d 873.)

 Decedent's nominal “treatment” allegedly consisted of being seen by a doctor and told that he had a “bug” at a time when he exhibited symptoms of alarming seriousness.   His temperature was evidently taken, and he was moved to the infirmary at some point.   Upon a second visit, on the following day, when decedent allegedly exhibited still more serious symptoms, the doctor apparently did nothing further and allegedly never again saw the patient.   The extent of treatment thus alleged was illusory under the circumstances of medical urgency then evident.

Real parties note that Gloria Ochoa was allegedly assured by Lourdeaux that her son would be given a penicillin injection.   But that alleged assurance came on March 25th and was an unfulfilled promise as of the time she left that day, at 2 p.m.   Decedent expired less than 11 hours thereafter.   It is likely that at the time of Gloria Ochoa's repeated requests that day, emergency room facilities were required to save decedent's life.   According to the complaint, these and other requests for appropriate medical facilities and care were met with assurances from Lourdeaux and others at the facility that decedent was receiving or would receive adequate care.   Yet it is alleged that no radiological, blood or urine diagnostic studies were ever performed in order to ascertain what course of treatment was appropriate.

Our decision here is similar to the result reached on similar facts in Pinon v. State of Wisconsin (E.D.Wis.1973) 368 F.Supp. 608, a case relied upon by petitioners and tellingly ignored by real parties.   The plaintiff in Pinon brought a section 1983 action alleging that her deceased son, an asthmatic, was denied adequate medical treatment while in a correctional institution.   Decedent had allegedly requested more adequate treatment and that he be taken to a hospital.   He complained of breathing difficulty and requested oxygen, but to no avail, and died within two months of his “virtually ignored” requests.  (Id., at pp. 609–610.)   Those allegations of what the court determined amounted to “failure or refusal to provide” urgently needed medical care were found sufficient to state an actionable claim under section 1983.  (Id., at p. 610.)

We conclude that the sixth cause of action states sufficient facts to constitute an actionable claim under section 1983 for violation of decedent's rights under the Eighth Amendment of the federal Constitution.   Thus, it was error for the trial court to sustain, as to that cause of action, the demurrers of real parties Lourdeaux, Works, Zuckswerth and Dozier.

II. Interference with parental rights

For their eighth cause of action, petitioners sue in their individual capacities, claiming that real parties' “callous and deliberate indifference” to their “parental rights and duties” violated their “right to parenthood guaranteed under the United States Constitution, Amendment VIII, and other provisions thereof, the California Constitution and amendments thereto, and [section] 1983.”   The violation of which they complain is real parties' alleged interference with their asserted parental right and duty “to provide all necessaries of life” to their son, including prompt medical attention and care.

 The foundation of this cause of action is evidently section 1983 for petitioners seek monetary compensation for the alleged interference.   That section, however, imposes liability for violations of “rights, privileges, or immunities secured by the [federal] Constitution and laws” (§ 1983, set forth ante in fn. 3;  Baker v. McCollan (1979) 443 U.S. 137, 146, 99 S.Ct. 2689, 2695–2696, 61 L.Ed.2d 433), and petitioners have failed, both in this court and in the trial court, to cite any authority to support the existence of a federally secured right to provide necessaries of life to their son.   Their only authority is Evans v. Noonan (1912) 20 Cal.App. 288, 128 P. 794, which case posed, and answered in the affirmative, the then first-impression question of whether medical services may be counted among the “necessaries of life” which parents are legally obligated to furnish to their minor children.  (Id., at pp. 292–293, 128 P. 794.)   There is no hint in Evans that furnishing such services is a personal right of the parents secured by the federal (or even state) Constitution or laws.

We agree with petitioners' position that their duty under state law to provide their deceased son with the necessaries of life, including urgently needed medical care, gave rise to an implied, corresponding right to discharge that duty, but that right must be grounded in the federal Constitution or laws in order to be cognizable in a section 1983 action.   Petitioners fail to demonstrate and support with authority a federal source of protection for the parental right which they assert.

The Fourth District Court of Appeal in Shelton v. City of Westminster (1983) 138 Cal.App.3d 610, 188 Cal.Rptr. 205 (hg. den. Feb. 23, 1983) was recently faced with a similarly unsupported section 1983 claim.   There, the parents of a deceased child alleged that they had been deprived of an asserted due process “liberty” interest, consisting of their “right to parenthood and custody of their children,” by the delay of city police in identifying an apparent homicide victim as their son, who they had reported missing.   The court in Shelton responded, “Sheltons' [argument] seek[s] to turn a ․ tort claim into a manifold deprivation of constitutional rights․  Carried to its illogical conclusion, the Sheltons' argument would create a constitutionally based right of action for the parent whenever a public official committed a tort against the child.  [Citation.]”  (P. 622, 188 Cal.Rptr. 205.)   Petitioners in the case at bar raise a comparable argument which, lacking case law support, must be rejected.

 Having failed to assert in their eighth cause of action deprivation of a right secured by the laws or Constitution of the United States, petitioners had no claim cognizable under section 1983.  (Baker v. McCollan, supra, 443 U.S. 137, 146–147, 99 S.Ct. 2689, 2695–2696, 61 L.Ed.2d 433.)   We thus conclude that the trial court correctly sustained the demurrers to that cause of action and did not abuse its discretion in denying leave to amend.

III. Intentional and negligent infliction of emotional distress

 The ninth cause of action is brought by petitioners for intentional infliction of emotional distress, but petitioners have failed, both here on appeal and in the trial court, to raise a legal argument in support of their intentional infliction of emotional distress theory.   Both sides of this controversy mistakenly assume that their arguments and authorities for or against liability on the theory of negligent infliction of emotional distress also suffice as to the intentional tort.   The two torts are dissimilar in many respects.  (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) § 233 et seq. [intentional infliction of emotional distress] and § 548 et seq. [negligent infliction of emotional distress].)   Under these circumstances, the trial court acted correctly in sustaining the demurrers without leave to amend for it appears that petitioners have abandoned the cause of action.

 In the fifth cause of action, petitioners allege that they experienced great mental, emotional and physical pain and suffering as a proximate result of real parties' negligently having caused decedent to suffer a fatal illness in their “physical, visual and auditory presence.”   They argue that those allegations together with the incorporated allegations set forth ante state causes of action under the principles announced in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 and Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.

In Dillon v. Legg, the plaintiff was a mother who allegedly suffered physical injury from the emotional shock which she experienced in witnessing her child being fatally struck by an automobile negligently driven by the defendant.   The court allowed recovery by the mother, even though she was not within the “zone of danger”—a requirement under prior case law—thus giving birth to what has been referred to as the “bystander” cause of action for negligent infliction of emotional distress.  “In order to limit the otherwise potentially infinite liability which would follow every negligent act,” however, the court in Dillon restricted application of the bystander rule by imposing a three-part test for determining “whether the accident and the harm was reasonably foreseeable.”  (68 Cal.2d 728, 739–741, 69 Cal.Rptr. 72, 441 P.2d 912.)   Those factors of foreseeability, paraphrased, are:  (1) proximity to the scene of the accident;  (2) sensory and contemporaneous observance of the accident;  and (3) the closeness of the relationship between the plaintiff and victim.  (Id., at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

In the instant case, the closeness factor is satisfied by the parent-child relationship between petitioners and decedent.   Further, by allegedly witnessing the decline of decedent, petitioners would seem to satisfy the proximity and contemporaneous-observance factors.   However, consistently with the Supreme Court's concern about “potentially infinite liability,” Dillon's progeny have generally insisted that there be some tortious event capable of sensory perception.  (See review of cases in Justus v. Atchison (1977) 19 Cal.3d 564, 582–584, 139 Cal.Rptr. 97, 565 P.2d 122;  Hathaway v. Superior Court (1980) 112 Cal.App.3d 728, 732–736, 169 Cal.Rptr. 435;  and Parsons v. Superior Court (1978) 81 Cal.App.3d 506, 509–512, 146 Cal.Rptr. 495.)   In the words of our Supreme Court, “Dillon requires more than a mere physical presence:  ․ the shock must also result from a ‘direct emotional impact’ on the plaintiff caused by ‘sensory and contemporaneous observance of the accident.’ ”  (Justus v. Atchison, supra, 19 Cal.3d at p. 584, 139 Cal.Rptr. 97, 565 P.2d 122, quoting from Dillon v. Legg, supra, 68 Cal.2d 728, 740, 69 Cal.Rptr. 72, 441 P.2d 912;  Hoyem v. Manhattan Beach City School District (1978) 22 Cal.3d 508, 523, 150 Cal.Rptr. 1, 585 P.2d 851.)   The allegedly negligent acts and omissions complained of in the present case are not the type of generally sudden occurrences which have produced actionable shock or direct emotional impact in the Dillon line of cases.  (See Justus v. Atchison, supra, 19 Cal.3d at pp. 582–584, 139 Cal.Rptr. 97, 565 P.2d 122.)

The dispositive case in point is Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22, 106 Cal.Rptr. 883, in which this court (Div. 3) declined the opportunity to expand the Dillon factor of contemporaneous observance to include “visibility of the result, as distinguished from that of the tortious act itself․”  (P. 24, 106 Cal.Rptr. 883.)   There, plaintiff mother witnessed “the progressive decline and ultimate death” of her 5-year-old daughter, allegedly caused by the medical malpractice of a hospital defendant.   She alleged that she stayed with her daughter for extended periods of time at the hospital and witnessed the child's last hours and painful death.  (P. 23, 106 Cal.Rptr. 883.)   This court reasoned that the Dillon rule contemplates “a sudden and brief event causing the child's injury,” adding that “to extend the rule ․ to the entire area of injury to a parent by improper diagnosis of a child's ailment ․ is an extreme broadening of the rule which the Supreme Court apparently sought to limit.”  (P. 24, 106 Cal.Rptr. 883.)

We are persuaded that there can be no recovery in this case under the Dillon “bystander” rationale.   It remains to be seen whether a cause of action has been stated under Molien v. Kaiser Foundation Hospital, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.

An understanding of the somewhat unusual facts of Molien is crucial to understanding its holding.   Plaintiff husband brought an action against defendant hospital to recover for mental suffering and loss of consortium allegedly caused by the hospital's negligently erroneous diagnosis that his wife had contracted syphilis.   The hospital instructed the wife to advise her husband of the diagnosis, and he was thereafter required to undergo blood tests to determine whether he too had the disease and may have been the source of his wife's infection.   The husband's tests proved negative, which inconsistency wreaked havoc on their marital relationship.   They ultimately dissolved their marriage.  (27 Cal.3d 916, 919–920, 167 Cal.Rptr. 831, 616 P.2d 813.)

Upon those facts, the Supreme Court found the Dillon case “apposite, but not controlling.”  (Molien, supra, 27 Cal.3d 916, 921, 167 Cal.Rptr. 831, 616 P.2d 813.)   Defendant hospital argued that, since plaintiff was not present when the doctor announced the erroneous diagnosis, there was no cause of action under Dillon, but the court rejected the idea that the three Dillon factors were applicable, reasoning that those safeguards against the “otherwise potentially infinite liability” spoken of in Dillon are only called for in the bystander scenario, i.e., where the plaintiff suffers damages “as a percipient witness to the injury of a third person․”  (Id., at pp. 921–923, 167 Cal.Rptr. 831, 616 P.2d 813.)   Distinguishing the facts of Molien from those of the bystander cases, the court noted, “Here ․ plaintiff was himself a direct victim of the assertedly negligent act.”  (Pp. 922–923, 167 Cal.Rptr. 831, 616 P.2d 813;  emphasis added.)   The court then proceeded to analyze foreseeability of the risk of harm under general tort principles and concluded that the risk of harm to the husband from a negligent misdiagnosis was reasonably foreseeable.  (P. 923, 167 Cal.Rptr. 831, 616 P.2d 813.)

First, it is necessary to decide whether petitioners, like the plaintiff in Molien, were themselves direct victims of the assertedly tortious conduct.   We conclude that they were not.

The allegations are silent as to Raul Ochoa, except for mention of his and Gloria's visit with decedent on Tuesday, March 24th.   All specifically alleged communications with decedent and juvenile hall personnel were evidently made by Gloria.   The information is too scant to establish that Raul was in any way a direct victim, and so we look to the allegations concerning Gloria.

Gloria is claimed to be a direct victim by virtue of her repeated requests to remove decedent being denied and because of the doctor's insistence that there was nothing seriously wrong with decedent.   Those allegations, however, are nothing more than evidence of the same conduct and alleged misdiagnosis which constitutes the crux of the negligence claims asserted on decedent's behalf.   The conduct which was found in Molien to make a direct victim of the husband was not merely the act of negligent misdiagnosis that had caused the wife to suffer.   There, the hospital directly sought out the husband, as a result of its prior negligence, and required him to undergo testing.   It was a separate affirmative act flowing from the initial negligence and one directed particularly toward someone who might otherwise have been a mere bystander.   In the instant case, by contrast, Gloria was the one who initiated the upsetting encounters—the repeated requests, all spurred by her anxiety as a “bystander” to decedent's suffering.   Real parties' assurances and denials of the requests came only at Gloria's instigation and cannot be said to have turned her into a direct victim.

For the reasons expressed hereinabove, we conclude that respondent court properly sustained without leave to amend the demurrers of real parties Lourdeaux, Works, Zuckswerth and Dozier to the fifth, eighth and ninth causes of action, and that the court erred in sustaining demurrers of those real parties to the sixth cause of action.

Let a peremptory writ issue commanding respondent court to set aside its order of March 26, 1982, sustaining without leave to amend the demurrers of real parties Lourdeaux, Works, Zuckswerth and Dozier to the sixth cause of action of the original complaint;  in all other respects, the petition for writ of mandate is denied.   The alternative writ is discharged.   Each side shall bear its own costs in this writ proceeding.

FOOTNOTES

1.   Real parties object to petitioners' statement and use of “facts beyond those which were alleged in Petitioners' Complaint,” yet the bulk of those facts can be found in the claim, which is expressly incorporated by reference into the first cause of action “as if fully set forth” therein and is recited to be attached to the complaint as an exhibit.   Such incorporation by reference is an approved method of inferential pleading in this state, and the truth of the allegations of such an exhibit is admitted by a defendant's general demurrer, as though they were direct allegations.  (Holly Sugar Corp. v. Johnson (1941) 18 Cal.2d 218, 225–227, 115 P.2d 8;  see 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, §§ 315–317, pp. 1984–1986, and §§ 321–323, pp. 1989–1992.)

2.   If objection was made below to any of the matters incorporated from the claim, we have not been made aware of it.

3.   California courts have concurrent jurisdiction over civil rights actions brought under section 1983.  (Serrano v. Unruh (1982) 32 Cal.3d 621, 638–639, fn. 27, 186 Cal.Rptr. 754, 652 P.2d 985;  Williams v. Horvath (1976) 16 Cal.3d 834, 837, 129 Cal.Rptr. 453, 548 P.2d 1125.)Section 1983 provides, in relevant part:“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress․”In addition to their claim of cruel and unusual punishment, petitioners allege that the conduct of real parties violated unspecified “other provisions” of the state and federal constitutions.   Such a claim is too broad to merit serious consideration.   Furthermore, all of petitioners' argument goes to the claim of cruel and unusual punishment under the federal constitution.

4.   The Eighth Amendment of the United States Constitution provides:  “Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

5.   Article I, section 17, of the California Constitution provides:  “Cruel or unusual punishment may not be inflicted or excessive fines imposed.”

6.   Reported decisions interpreting and applying article I, section 17, of the California Constitution, enacted in 1974, have thus far not extended its protections in this context as far as has the United States Supreme Court in interpreting the Eighth Amendment.   In any event, a violation of state constitutional rights is not redressable under section 1983.

 SMITH, Associate Justice.

ROUSE, Acting P.J., and MILLER, J., concur.