GARCIA v. RO TECH INDUSTRIES INC (1985)

Petitioner (plaintiff below) Lorraine Morales Garcia seeks a writ of mandate to vacate an order granting real party in interest (defendant below) Ro-Tech Industries' motion to strike that portion of her complaint alleging negligent infliction of emotional distress.   The complaint also purported to state a cause of action on petitioner's behalf for wrongful death;  petitioner does not challenge the order insofar as it dismissed that action.

FACTS

Petitioner alleged that she and Hector Rincon “were engaged to be married, holding themselves out to be married and were engaged in an actual and permanent family relationship” and that petitioner had suffered emotional distress when she witnessed the killing of Hector Rincon in a vehicular collision caused by real party's negligence.¹  Also injured in the collision was Pauline Celia Rincon, an infant of five months at the time of the collision and the natural daughter of Hector Rincon and petitioner.²

 Real party demurred to petitioner's ninth cause of action for negligent infliction of emotional distress and moved to strike her allegations of emotional distress on the ground that she was not legally married to Rincon at the time of the accident.   The trial court overruled the demurrer but granted the motion to strike as to those allegations specifically concerned with petitioner's cause of action for negligent infliction of emotional distress.³  Petitioner filed a petition for writ of mandate to vacate that portion of the order granting the motion to strike and we issued an alternative writ and order to show cause.⁴  After further briefing and oral argument, we have determined to issue a peremptory writ vacating the original order and commanding the trial court to enter a new and different order sustaining the demurrer with leave to amend.

DISCUSSION

 In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the seminal case dealing with negligent infliction of emotional distress, the California Supreme Court established a three-part test of foreseeability:  “(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.  (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.  (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.”  (68 Cal.2d at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

Here we are concerned only with the third factor, i.e., “whether plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship.”  (Id., at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912.)

 The “close relationship” element of Dillon is simply “one test of foreseeability that negligent infliction of injury upon one person will cause emotional distress and consequent physical harm to another.”  (Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 583, 127 Cal.Rptr. 720, disapproved on other grounds in Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871.)   Referring to the facts before it, the Dillon court stated:  “[O]bviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so.”   (Id., 68 Cal.2d at pp. 741, 69 Cal.Rptr. 72, 441 P.2d 912.)   In Mobaldi, supra, the First Division of the Second District Court of Appeal, reversed the dismissal of a complaint which alleged emotional trauma to the plaintiff foster mother when her foster child, while in her arms, received the wrong injection by a defendant physician and became convulsant and eventually comatose.   The Mobaldi court held that it was foreseeable the infliction of harm to the infant would cause severe emotional upset to those who had assumed the position of his parents.   The limitations on the scope of duty set forth in Dillon, the Mobaldi court reasoned, “seemingly [do] not limit the close relationship requirement to one of blood, marriage or adoption.   The guideline is expressed as ‘contrasted with an absence of any relationship or the presence of only a distant relationship.’  (68 Cal.2d at p. 741 [69 Cal.Rptr. 72, 441 P.2d 912].)”  (Mobaldi v. Regents of University of California, supra, 55 Cal.App.3d at pp. 582–583, 127 Cal.Rptr. 720.)   Thus it is clear, the Mobaldi court concluded, that “emotional attachments of the family relationship and not legal status are those which are relevant to foreseeability.”  (Id., at p. 582, 127 Cal.Rptr. 720.)   Because the foster mother/foster child relationship “possesses all of the incidents of parent and child except those flowing as a matter of law and because the latter incidents are ․ essentially irrelevant to considerations limiting recovery in tort directly damaging the plaintiff,” the Mobaldi court held that plaintiff fell within the scope of defendant's duty of reasonable care.⁵  (Id., at p. 583, 127 Cal.Rptr. 720.)

 It is our view that the underlying rationale of Dillon as cogently expressed in Mobaldi compels a recognition of tort claims for emotional distress by “de facto” spouses.   Foreseeability of the risk defines the scope of defendant's duty.  (Dillon v. Legg, supra, 68 Cal.2d at pp. 739–741, 69 Cal.Rptr. 72, 441 P.2d 912;  Mobaldi v. Regents of University of California, supra, 55 Cal.App.3d at p. 582, 127 Cal.Rptr. 720;  Drew v. Drake, supra, 110 Cal.App.3d 555, 558–559, 168 Cal.Rptr. 65 (Poché, J., dis.).)   The issue of law here is simply this:  Is it foreseeable in contemporary society that injury to an adult may result in emotional trauma to another adult with whom the injured party is cohabiting without benefit of marriage?   In Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503, this court held that unmarried cohabitants can state a claim for loss of consortium if the claimant can demonstrate that the relationship is both stable and significant.   We noted there that the “incidence of cohabitation without marriage in the United States increased by 800 percent between 1960 and 1970.  (Comment, Consortium Rights of the Unmarried:  Time for a Reappraisal (1981) 15 Family L.Q. 223, 224.)”   Thus we concluded that, “in the conditions of modern society, the possibility that an adult may be cohabiting with another is neither unexpected nor remote;  in short, it is reasonably foreseeable.”  (Id., at p. 68, 188 Cal.Rptr. 503.)

In so holding, we relied in part on the views expressed by Justice Poché in his dissenting opinion in Drew v. Drake, supra, 110 Cal.App.3d 555, 168 Cal.Rptr. 65.  (Butcher v. Superior Court, supra, 139 Cal.App.3d at p. 68, 188 Cal.Rptr. 503.)   In Drew, the majority held that a de facto spouse was not entitled to state a cause of action for negligent infliction of emotional distress.   The majority believed that to recognize the rights of de facto spouses would be to “abandon the Dillon requirement that ‘the courts ․ mark out the areas of liability, excluding the remote and unexpected.  (68 Cal.2d at p. 741 [69 Cal.Rptr. 72, 441 P.2d 912].)’ ”  (Drew v. Drake, supra, 110 Cal.App.3d at p. 557, 168 Cal.Rptr. 65.)   Dissenting, Justice Poché noted the eight-fold increase in the number of couples living together without being married;  recalled that foreseeability lay at the heart of Dillon;  and so expressed amazement that the majority had “determined the incidence of cohabitation without benefit of clergy in contemporary California society to be so rare that it can be characterized as ‘unexpected and remote.’ ”  (110 Cal.App.3d at p. 559, 168 Cal.Rptr. 65.)

 Having earlier relied upon Justice Poché's reasoning in his dissent in Drew v. Drake, we now take the occasion to endorse his conclusion therein, as well.   We hold that unmarried cohabitants can state a cause of action for negligent infliction of emotional distress if the plaintiff can demonstrate that the relationship is both stable and significant.

A recent decision of the Court of Appeal for the Second District, Division Six, has endorsed this view, as well.   In Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 210 Cal.Rptr. 814, plaintiff, an unmarried woman, had witnessed the stabbing death of decedent, with whom she had lived for two years and had borne a child.   The trial court sustained a demurrer to plaintiff's third cause of action for negligent infliction of emotional distress.   The Ledger court reversed, holding that “it is foreseeable, as a matter of law [citation], that when defendant drew his knife, and stabbed [decedent], that the woman a few feet distant seated in the vehicle was likely a loved one who would suffer extreme emotional distress when [decedent] died in her arms.”  (Id., at p. 646, 210 Cal.Rptr. 814.)   In holding that her pleadings had adequately established a “close relationship” with decedent, the Ledger court noted that the parties had lived together continuously for two years;  that they had a child;  that their plans to be married had twice been frustrated by circumstances beyond their control;  and that plaintiff had been economically dependent upon the decedent.⁶  (Id., at pp. 647, 210 Cal.Rptr. 814.)

In Butcher we held that the burden of establishing that the cohabitation relationship is both stable and significant rests with the plaintiff.  (139 Cal.App.3d at p. 70, 188 Cal.Rptr. 503.)   We suggested that evidence of the stability and the significance of the relationship could be demonstrated by the duration of the relationship;  whether the parties have a mutual contract;  the degree of economic cooperation and entanglement;  exclusivity of sexual relations;  and whether there is a “family” relationship with children.  (Ibid.)  While acknowledging that this list of factors was not exhaustive, and that some may be present while others absent, we stressed that the plaintiff must ultimately carry the burden of establishing that the relationship “is essentially a de facto marriage.”  (Ibid.)

Here petitioner has alleged that she and the victim “were engaged to be married, held themselves out to be married and were engaged in an actual and permanent family relationship.”   She and the victim were the natural parents of a daughter who was five months at the time of the accident.   However, petitioner failed to allege the duration of her relationship with the victim or to indicate whether it had been continuous and exclusive during that period of time.   Furthermore, although petitioner alleged that she and the victim had “pool[ed] resources and share[d] expenses,” petitioner alleged no specific facts, such as the existence of joint economic burdens, common ownership of property, joint tax returns, joint savings or checking accounts, which might indicate a committed and enduring relationship.  (See Butcher v. Superior Court, supra, 139 Cal.App.3d at p. 70, 188 Cal.Rptr. 503.)

 Therefore, we conclude that the complaint does not state facts sufficient to establish that the relationship between petitioner and the victim was stable and significant or one of de facto marriage.   However, it is an abuse of discretion to sustain a demurrer without leave to amend where the defect, though one of substance, may be cured by supplying omitted allegations.  (Cordonier v. Central Shopping Plaza Associates (1978) 82 Cal.App.3d 991, 998–999, 147 Cal.Rptr. 558;  3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 845, p. 2450.)   Hence, we conclude that petitioner should have the opportunity to amend her pleading in order, if possible, to clarify and strengthen her allegations.

DISPOSITION

The alternative writ is discharged.   Let a peremptory writ issue ordering the respondent superior court to vacate its order granting the motion to strike paragraphs 60, 61, and 62 of the ninth cause of action for negligent infliction of emotional distress and to enter a new and different order sustaining the demurrer to the ninth cause of action with leave to amend.

FOOTNOTES

1.   Petitioner also stated causes of action for wrongful death and negligence.   The wrongful death count was dismissed and that portion of the order is not challenged on appeal.

2.   The daughter, through her guardian ad litem, also sued for wrongful death, negligence and negligent infliction of emotional distress.

3.   Granting the motion to strike was tantamount to sustaining the demurrer to the ninth cause of action without leave to amend in that it effectively emasculated petitioner's cause of action for negligent infliction of emotional distress.   However, a motion to strike is generally granted for purposes of striking sham, irrelevant or false pleadings, not for failure to state a cause of action.  (Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 41, 96 Cal.Rptr. 317;  3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 860, pp. 2464–2465.)   Accordingly, we shall treat the trial court's order striking petitioner's allegations of emotional distress as an order sustaining without leave to amend the demurrer to the ninth cause of action.   Parenthetically, we note that when a motion to strike is properly granted under Code of Civil Procedure section 436, the court may grant leave to amend “upon terms it deems proper.”  (Code Civ.Proc., § 472a, subd. (d).)

4.   A petition for writ of mandate to set aside an order granting a motion to strike may be granted where it appears that the remedy by appeal would not afford a plain, speedy and adequate remedy in that success on appeal would necessitate a retrial and result in wasteful and unnecessary delay.  (Hollister Canning Co. v. Superior Court (1972) 26 Cal.App.3d 186, 194, 102 Cal.Rptr. 713.)   The merits of the controversy have been fully briefed and argued before this court.   Under these circumstances, the issue may be disposed of on the merits.  (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 551–552, 94 Cal.Rptr. 158, 483 P.2d 774.)

5.   Mobaldi is not distinguishable, as real party herein argues, on the ground that the doctor there was actually aware of the relationship between the foster mother and the foster child.   As the Dillon court made quite clear, “reasonable foreseeability does not turn on whether the particular plaintiff as an individual would have in actuality foreseen the exact accident and loss;  it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen.”  (68 Cal.2d at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912.)   Justice Thompson's opinion in Mobaldi clearly recognized that the test is an objective one, and referred to the defendant's actual knowledge as merely a buttress to the foreseeability rationale.  (55 Cal.App.3d at pp. 581–582, 127 Cal.Rptr. 720.   See also Drew v. Drake, 110 Cal.App.3d 555 at p. 559, fn. 2, 168 Cal.Rptr. 65.  (Poché, J., dis.).)

6.   Interestingly, a majority of the Ledger court affirmed that portion of the trial court's order sustaining defendant's demurrer to plaintiff's second cause of action for loss of consortium.   The main reason the majority cited for rejecting our holding in Butcher was the purported difficulty of determining when a relationship is “stable and significant.”  (164 Cal.App.3d at pp. 636–639, 210 Cal.Rptr. 814.)   Justice Gilbert, dissenting in part, endorsed the Butcher ruling and thus would have recognized plaintiff's action for loss of consortium.We are frankly puzzled by the inconsistency of holding that courts are capable of determining whether two people have established a “close relationship” but cannot determine whether that same relationship is “stable and significant.”   The key to both Dillon and Butcher is the court's recognition in both that foreseeability defines the duty.   Indeed, the Ledger majority relies on the same dissenting opinion by Justice Poché in Drew v. Drake, that we cited in Butcher for the proposition that the increasing number of cohabiting couples in the United States makes it reasonably foreseeable injury to one adult will result in injury to another adult with whom the injured party is cohabiting without benefit of marriage.  (Id., at p. 647, 210 Cal.Rptr. 814.)   If it was foreseeable in Ledger that the relationship between the victim and the plaintiff was “close,” albeit not one of blood or marriage, it was equally foreseeable that the relationship was stable and significant.   Moreover, as Justice Gilbert noted in dissent, the same facts cited by the majority in upholding plaintiff's action for emotional distress established the intimacy of her relationship with decedent for purposes of establishing her action for loss of consortium.  (Id., at p. 649, 210 Cal.Rptr. 814.)The issues, whether an unmarried cohabitant may maintain an action for loss of consortium or negligent infliction of emotional distress, are both currently before the California Supreme Court in Elden v. Sheldon (hg. granted, 4/25/85, L.A. 32063).

RICKLES, Associate Justice.

MORRIS, P.J., and KAUFMAN, J., concur.