Carlos Cruz: Writing Samples

California Second District Court of Appeal – 2020

Ko v. Maxim Healthcare Services, Inc., 58 Cal.App.5th 1144 (2020)

I. Parties

Dyana Ko et al., Plaintiffs and Appellant

v

Maxim Healthcare Services Inc. et al., Defendant and Respondents

II. Procedural Context

The Kos filed a complaint with four causes of action, the fourth being the relevant cause for this brief. This cause of action alleges negligently inflicted emotional distress. Defendants filed a demurrer for this cause of action, as well as a motion to strike all references to damages alleged through NIED. The trial court sustained these demurrers and granted the motion to strike.

The court sustained demurrers without leave to amend, after which the Kos filed a notice of appeal from a judgement of dismissal. To be clear, the court had yet to enter a judgment or order of dismissal when this notice was filed. Shortly thereafter, the court entered a judgment inf avor of defendants on the fourth cause of action. The appellate courts treats the notice of appeal as if it were filed immediately after entry of judgment.

III. Facts of the Case

The Kos hired Maxim to provide in-home caretaking services for their disabled two-year-old child, Landon. Maxim employee, Manalastas, was charged with Landon’s care. During a family outing with the Kos and their two older children, Dyana opened a nanny-cam app on her phone, where she and her husband saw Manalastas abusing Landon. The Kos called the police, drove home, and showed the police the video of Manalastas abusing Landon; the police arrested Manalastas. The Kos reported the abuse to Maxim, but Maxim simply reassigned Manalastas, as opposed to terminating her employment.

The Kos alleged that Maxim failed to perform a background check on Manalastas, given that the Kos believed Manalastas had a criminal record. The Kos further alleged that the abuse caused the need for the surgical removal of one of Landon’s eyes. Landon passed away about a year after the incident.

IV. Issue

Can the Ko’s state a cause of action for negligently inflicted emotional distress given that they witnessed the abuse of their son in real time, even though they were not present at the site of the abuse?

V. Rule

For the negligent infliction of emotional distress to apply, three criteria must be satisfied: the plaintiff must be closely related to the victim; the plaintiff must be at the scene of the injury when the injury occurs, and must be aware that an injury has occurred; the plaintiff must suffer emotional distress which exceeds a level of distress which would be expected from a disinterested witness.

VI. Holding

The trial court’s judgement is reversed. The trial court must vacate its order to sustain defendants’ demurrer without leave to amend for the relevant cause of action. Plaintiffs will recover costs on appeal.

VII. Rationale

The appellate court applied the de novo standard or review: if the alleged facts are sufficient to establish a cause of action, and if a demurrer without leave to amend could be remedied by amendment, then the appellate court is likely to reverse the lower court’s decision.

In Ochoa v. Superior Court, 39 Cal.3d 159 (1985), the court established that the plaintiff’s observation of the defendant’s negligent behavior, i.e., contemporaneous awareness of said behavior, is sufficient to allow plaintiffs recovery. Archibald v. Braverman, 275 Cal.App.2d 253 (1969) allowed for recovery even though the plaintiff’s perception of negligent behavior was not truly contemporaneous, but was only “fairly contemporaneous”.

Considering the advancements in technology since the adoption of the NIED requirements produced by the Thing v. La Chusa, 48 Cal.3d 644 (1989) decision, the court finds that observing negligent injury-causing behavior via phone satisfies the second requirement of the Thing rules.

VII. Concurrence and Dissent

All Justices concur.