Bro v. Glaser (22 Cal. App. 4th 1398, 1994)

Opinion

obstetrician nicked the cheek of baby Brittany Bro with his scalpel. There was no permanent physical injury to the baby; nevertheless, the parents commenced the underlying litigation against the doctor, seeking, on behalf of their baby daughter, to recover for medical malpractice and, for their own account, to recover emotional distress damages, arising because of the allegedly negligent manner in which their child was “presented” to them about 30 minutes after her birth.

Because defendant doctor was later wholly absolved of any medical malpractice {infra), this appeal presents for decision whether plaintiff parents are entitled to recover damages for negligent infliction of purely emotional distress where such claim stands alone, i.e., there being no adjunct or concurrent claim, tort or otherwise.

Within the scheme of our analysis and reflecting current authority, Kim Bro, the father, and Donna Bro, the mother (plaintiffs), qualify as “direct victims” because of their “preexisting relationship” with Joseph Glaser, M.D. (defendant). (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074 [9 Cal.Rptr.2d 615, 831 P.2d 1197] [Burgess].) Despite plaintiffs’ being direct victims, their claim for negligent infliction of emotional distress was rejected by the trial court and rightly so, as we shall explain, when it granted defendant’s motion for summary judgment on that count.

In seeking a rationale for deciding this appeal, we analyzed a number of post -Molien emotional distress cases. The data which such analysis produced, as collected in the appendix, suggests a specific test for use in approaching the daunting task of deciding purely emotional distress cases, where, according to Justice Puglia, “. . . the effort to force disparate cases with a loose family resemblance into a tight, coherent, conceptual scheme has bedeviled this area of decisional law.” (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 8 [4 Cal.Rptr.2d 87] [Merenda].) The test, which the data above noted suggests, is a reflection of Justice Tobriner’s recital in Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] (Dillon) that duty “ ‘is a shorthand statement of a conclusion [that liability shall attach if it be breached], rather than an aid to analysis in itself. . . .’” (Id. at p. 734.) Similarly, the test, which the data suggests, is an application of Justice Eagleson’s admonition in Thing v. La Chusa (1989) 48 Cal.3d 644 [257 Cal.Rptr. 865, 111 P.2d 814] (Thing), confirmed in Burgess, that foreseeability is “not a useful ‘guideline’ ” in defining the presence of duty in purely emotional distress cases. (Burgess, supra, 2 Cal.4th 1064, 1074.)

In other words, in all purely emotional distress cases, it is always foreseeable that the plaintiff will be distressed; as a result, if duty were to depend primarily on foreseeability, as in personal injury cases, recovery would be automatic in every emotional distress case. However, as Justice Blease observed in Andalon v. Superior Court (1984) 162 Cal.App.3d 600 [208 Cal.Rptr. (Andalon), “ ‘ “[n]ot every [emotional distress] loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor’s responsibility for damages under the general rule of tort liability (Civ. Code, § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political.” ’ ” (Id. at p. 607, original italics.)

Thus, in an effort to respond to the invitation, implied in Andalón, we shall prescribe, as an aid in deciding emotional distress cases based on negligence, a two-pronged test for use in screening the cases and then for locating that line between liability and nonliability in those cases.

When the prescribed test, which we distilled from Burgess and the cata-logue of the 26 post-Molien cases studied, is applied to the undisputed facts presented by the record before us here, it results in a ready showing that the trial court properly granted defendant’s motion for summary judgment. We shall affirm the judgment accordingly.

Synopsis of Trial Court Proceedings

As above related, plaintiffs’ complaint was styled in two counts. The first alleged medical malpractice by three doctors, including defendant, in that while defendant was performing a caesarean section on plaintiff Donna Bro, “the left side of Plaintiff Brittany Bro’s face was severely lacerated.” The second was designed to recover for plaintiff parents’ purely emotional distress, arising “[a]s a proximate result of Defendants]”] negligent and careless presentation of newborn Brittany to Plaintiffs [who] . . . observed their daughter Brittany with a laceration and bandage to her face and [thereby] suffered severe emotional distress.” (Italics added.)

The record on appeal contains no appearances in the trial court by any of the defendants. However, the record does show that, about eight months after plaintiffs’ complaint was filed, defendant gave notice of motion for summary adjudication of issues arising by reason of the second count, i.e., plaintiffs’ count for purely emotional distress suffered because of the allegedly careless manner in which their newborn daughter was presented to them. The motion was made on the ground that “There is no triable issue of fact as to whether plaintiff Kim Bro can recover on a bystander theory of Negligent Infliction of Emotional Distress, and, accordingly, the Second Cause of Action as to Kim Bro [should be] dismissed with prejudice.” A similar ground was also articulated as to plaintiff Donna Bro.

Defendant’s supporting statement of material facts was compiled in light of his theory that plaintiffs did not qualify as traumatized family bystanders. In sum, the statement asserted that it was undisputed that each of plaintiff parents was seeking emotional distress damages “based upon the observance of the aftermath of [defendant’s] alleged negligence.” (Italics added.) In the instance of plaintiff father, the statement further asserted that he “was not aware that defendant Dr. Glaser was causing injury to Brittany Bro at the time the injury was taking place.”

In further support of his motion, defendant lodged the depositions of both plaintiff parents with the court. In his points and authorities, defendant quoted excerpts of both depositions. A fair summary of the critical events, as disclosed by these excerpts shows: 1) plaintiff mother’s vision of the caesarean section procedure was screened, and she did not learn of the cut on Brittany’s cheek until she (the mother) was in the recovery room; 2) it was in the recovery room that defendant told both parents, about half an hour after it happened, that the child’s cheek had been cut during the delivery procedure; 3) although plaintiff Kim Bro was present during the caesarean section procedure, he likewise did not see the child’s cheek cut; 4) up until the time defendant told the parents that he had cut their baby’s face, the parents did not suspect that the delivery had involved a minor mishap.

In plaintiffs’ opposition to the motion, defendant’s response to a particular written interrogatory was cited; it stated, “admit that Brittany Bro sustained a small cut from the scalpel on her left cheek.”

In their points and authorities, plaintiffs quoted certain paragraphs of their complaint to pinpoint the precise predicate for the cause of their emotional distress. Those paragraphs alleged: “On December 14, 1989, immediately after Plaintiff Brittany Bro’s face was lacerated, Defendants and each of them negligently and carelessly presented the newborn Brittany Bro to Plaintiff[]s and parents Kim and Donna Bro. At the time injured newborn Brittany Bro was presented to Plaintiff[]s Kim and Donna Bro, Brittany Bro’s face had been severely lacerated and bandaged by Defendants. [¶] As a proximate result of Defendants’ negligent and careless presentation of newborn Brittany to Plaintiffs and parents Kim and Donna Bro, Kim and Donna observed their daughter Brittany with a laceration and bandage to her face and suffered severe emotional distress.” (Italics added.)

Based on these allegations, plaintiffs argued, in their opposition to the motion, that they were “direct victims” of defendant’s negligent “presentation” and that their theory of liability was based on such status and not that of traumatized family bystanders. Again, plaintiffs noted a particular allegation in their complaint: “On December 14, 1989, immediately after Plaintiff Brittany Bro’s face was lacerated, Defendant . . . negligently and carelessly presented the newborn Brittany Bro to Plaintiff[]s.” (Original italics.)

In plaintiffs’ statement of disputed and undisputed facts, they limited their recitals to insisting that they were “alleging a Direct Victim Theory of recovery based upon the negligent presentation of Brittany Bro to Km and Donna Bro. Plaintiffs are not alleging a bystander theory of recovery.” (Italics added.)

In his reply to plaintiffs’ opposition to his motion, defendant cited to and quoted additional excerpts from plaintiffs’ respective deposition testimony. In sum, they show: 1) the baby’s face was bandaged when it was “presented” to plaintiffs; 2) the “presentation” occurred about five minutes after defendant related to plaintiffs that the baby’s face had been cut; 3) plaintiff mother stated that she expected the baby’s face to be bandaged when it was handed to her; 4) she also affirmed that she “would have wanted the doctor[] to repair whatever cut there was to the face, . . .”; 5) plaintiff mother further affirmed that she had “no criticism [of] the way in which [defendant] conducted himself after the delivery, . . .”

After the motion was argued and submitted, the trial court entered its order granting the motion for summary adjudication “of the second cause of action as to [both] plaintiffs Kim and Donna Bro . . .” and directing that judgment be entered thereon in favor of defendant. The only reason stated for granting the motion was that the “second cause of action as to plaintiffs Kim and Donna Bro has no merit and that there is no triable issue of any material fact with respect thereto. . . ,”

There are two possible reasons for the court’s ruling. If it were persuaded to accept defendant’s position that the only possible theory of liability was the Dillon, family-bystander theory, then its decision could be rationalized on the ground that neither parent actually witnessed the injury inflicted on baby Brittany. Thus, neither could have qualified as a traumatized family bystander. However, if the trial court were persuaded to accept plaintiffs’ position that they were claiming emotional distress damages as so-called direct victims, having both retained defendant to be “a participant in the reproductive life of the marital couple” (Andalon, supra, 162 Cal.App.3d 600, 611), then the decision can be rationalized as holding, despite plaintiffs’ qualifying as direct victims, that defendant’s conduct in “presenting” the child to plaintiffs did not breach a duty under which they enjoyed a protected interest in being free from negligent infliction of emotional distress (infra).

Under no possible analysis is this a traumatized family bystander case. Thus, either the trial court correctly decided the case under the latter alternative above described, or the result can rest on D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 [112 Cal.Rptr. 786, 520 P.2d 10], where the Supreme Court confirmed that “[n]o rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason.” (Id. at p. 19.)

Otherwise, there was some procedural confusion arising by reason of plaintiffs’ notice of appeal which showed that plaintiffs did not undertake to. appeal from the actual judgment by which the litigation, as to plaintiffs personally, was terminated in the trial court. As a result, we called up the entire trial court file and, on our own motion, elected to take judicial notice thereof. (Evid. Code, § 459.) Based on such notice, the record has been expanded to show that count one of plaintiffs’ complaint, alleging defendant’s medical malpractice as to baby Brittany Bro, was likewise resolved by means of a summary judgment entered in defendant’s favor.

Yet otherwise, the confusion over our appellate jurisdiction has been resolved in favor of our going ahead, the same by reason of our order of November 30, 1993. We shall therefore deem the appeal to have been timely taken from the judgment of January 30, 1992.

Discussion

I.

The Summary Judgment Framework

In the first instance, we are reminded that this appeal is from a summary judgment. The well-established rules for resolving motions for summary judgment are found in Code of Civil Procedure section 437c. The same standard applies in reviewing such judgments on appeal. “ ‘Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue.’ [Citation.]” (Golden West Broadcasters, Inc. v. Superior Court (1981) 114 Cal.App.3d 947, 954 [171 Cal.Rptr. 95].) Only if the moving party first demonstrates that its declarations, “ . . considered in light of the issues raised by the pleadings . . . would, standing alonef,] support the summary judgment motion[,] does the court look to any counteraffidavits and (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 639 [177 Cal.Rptr. 445].)

Once the court has considered the filings before it and found that there were no triable issues of disputed fact, its ruling on the motion for summary judgment becomes a determination of a question 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.)

What is often overlooked is that the factual issue guidelines for motions for summary judgment are precisely fixed by reference solely to the pleadings. (Fireman’s Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 994 [216 Cal.Rptr. 796].)

As suggested by City of Turlock, any review of a summary judgment begins with a careful scrutiny of the pleadings. Although defendant’s motion for summary judgment attempted to impose a theory upon plaintiffs’ complaint which did not fit, that complaint nevertheless does provide the framework within which to determine the motion.

Turning to count two of the complaint, to which defendant’s motion was directed, although negligence as the proximate cause of their emotional distress was alleged in conclusionary terms, such count probably could have survived demurrer. Even so, within the summary judgment framework, defendant’s evidentiary showing in support of the motion demonstrated a prima facie case of nonliability. Plaintiffs’ opposition raised no material issue of fact over what had occurred. Thus, the trial court’s task evolved into deciding, as a matter of law, whether the manner in which plaintiffs’ newborn daughter was “presented” to them, i.e., with a bandage on her cheek, did or did not entitle plaintiffs to recover damages for purely emotional distress. More particularly, in terms of the test to be developed {infra), the trial court was called upon to decide whether defendant’s conduct was sufficiently outrageous, as a policy matter, to cross the Andalón line and hence call for imposition of liability.

Plaintiffs’ Contentions

In pursuing their appeal, plaintiffs, in their initial bold face type “argument” contend that the judgment on count two “should be vacated since plaintiffs have stated a cause of action under the direct victim theory of liability and there are genuine issues of fact that remain for resolution at trial.” In their argument immediately following the above contention, plaintiffs invoke Burgess, which they interpret to have “clarified the rights of parents to assert claims against physicians for negligent conduct arising out of child[]birth;” they nevertheless abruptly abandon that position by asserting in their brief that “[t]he second cause of action does not focus on the surgery itself but upon the separate act of the manner in which the injured, child was presented to the parents after her birth.” (Italics added.) To reinforce this latter assertion as the basis for their theory of liability, plaintiffs quote from their complaint, as earlier noted. In short, plaintiffs’ avowed grievance is not related to the manner in which the childbirth was accomplished, but rather is related to the manner in which baby Brittany was “presented” to them 30 minutes later.

In our view, the trial court accepted plaintiffs’ contention that they qualified as direct victims per Burgess. However, it rejected their simplistic argument that merely qualifying as direct victims entitled them ipso facto to recover emotional distress damages. The clear implication is that the trial court ruled that plaintiffs, in order to recover, had to show something more than that they were direct victims; defining this something more is what much of this opinion is about.

In this regard, we are constrained to reiterate that defendant was absolved of any negligence in his delivery of baby Brittany. Thus, if plaintiffs have any colorable claim for emotional distress damages, it cannot be analogized to what happened in Burgess where the plaintiff mother was held entitled to recover parasitic or adjunct emotional distress damages along with the damages for the wrongful death of her child which resulted from the medical malpractice. (Post.)

II.

Evolution of Direct Victim Definition

As current law appears to us, reflected in the table attached as an appendix, to recover damages for purely emotional distress in nonbystander cases, it is first necessary to be a direct victim. Thus, it is important if not imperative to seek the origins of the definition and to trace its evolution. In our view, the story begins with Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295 [29 Cal.Rptr. 33, 379 P.2d 513] (Amaya) and continues through Dillon, Molien, Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583 [257 Cal.Rptr. 98, 770 P.2d 278] (Marlene F.), and Thing, and culminates in Burgess.

A.

Amaya

For well over a century, after the common law first recognized a cause of action based on negligence, the policy basis for such action was to sanction recovery of damages to compensate victims of negligence for their out-of-pocket losses arising because of personal injury which resulted in medical expenses and loss of wages. In most jurisdictions, this recognition was coupled with the requirement of physical impact as essential to such a cause of action. Just over 30 years ago, our Supreme Court was squarely faced with the question of whether this proposition applied in California. In Amaya, a four-to-three decision, the court observed, “At the outset it is necessary to determine whether or not the ‘impact rule’ is in force in California: i.e., in an action for personal injuries resulting from the internal operation of negligently induced fright or shock, need the plaintiff show that there was some contemporaneous physical impact upon her person? [Citation.] ... No California decision has been found declaring such a requirement, and we are not disposed to introduce it into our law now. We hold, accordingly, that plaintiffs failure to allege a contemporaneous physical impact upon her person is not, of itself, fatal to her attempt to state a cause of action.” (59 Cal.2d at p. 299, fn. omitted, citing Cook v. Maier (1939) 33 Cal.App.2d 581, 584-585 [92 P.2d 434].) However, the court went on to rule that the plaintiff could not state a cause of action for her emotional distress and consequent physical injury because she had not been in the zone of danger when she saw her infant son struck by the defendant’s ice truck.

Otherwise, Amaya confirmed the necessity for proximately caused physical symptoms in order to state a cause of action. This requirement is an integral part of the so-called zone-of-danger cases, where, despite the absence of impact, there are discemable and deleterious physical symptoms suffered by the plaintiff because of the “close call.” For our purposes, Amaya represented a serious brush with the concept of allowing money damages for purely emotional distress without physical injury.

B.

Dillon

Seven years after Amaya, and after the composition of the Supreme Court had changed, in Dillon, another four-to-three decision, the Supreme Court overruled Amaya, creating liability for negligence in favor of the emotionally traumatized family bystander positioned outside the zone of danger. By so ruling, Dillon represented a sharp break from the traditional limits of tort liability based on negligence. It awarded damages for purely emotional distress after more than a century of precedent which required accompanying physical injury. This newly defined liability was justified wholly on policy grounds but was rigidly limited to close family members actually witnessing the traumatic event. (Dillon, supra, 68 Cal.2d 728, 741.)

Dillon set forth three factors for use in making a determination of whether the accident and harm to the plaintiffs were reasonably foreseeable; “(1) Whether the plaintiff was located near the scene of the accident ... (2) Whether the shock resulted from . . . [plaintiffs] sensory and contemporaneous observance of the accident ... (3) Whether plaintiff and the victim were closely related . . . .” (Dillon, supra, 68 Cal.2d 728, 740-741.)

The foregoing represented implementation of the notion that duty is “only an expression of the sum total of those considerations of policy which lead the law to say that [certain plaintiffs are] entitled to protection [from negligent infliction of emotional distress].” (Dillon, supra, 68 Cal.2d 728, 734.) Otherwise, the court observed it was not called upon to decide the necessary degree of foreseeability to fix liability in cases where the conditions above noted were not present. Instead it stated that “[i]n future cases the courts will draw lines of demarcation upon facts more subtle than the compelling ones alleged in the complaint before us.” (Dillon, supra, 68 Cal.2d 728, 741.)

C.

Molien

Such facts were presented to the Supreme Court twelve years later in Molien, a five-to-two decision. There, a Kaiser staff physician diagnosed the plaintiff’s wife as having syphilis, and instructed her to inform her husband. When it was later discovered that the diagnosis was incorrect, the husband sued the physician and Kaiser, alleging that “[a]s a result of the negligently erroneous diagnosis, plaintiff’s wife became upset and suspicious that he had engaged in extramarital sexual activities and, as a result, he “suffered extreme emotional distress.” (Molien, supra, 27 Cal.3d 916, 920.) The defendants demurred, contending the suit was barred by Dillon, because the husband had not been present when the doctor announced the diagnosis and hence was not a traumatized family bystander.

In reversing the trial court’s judgment of dismissal, the Molien court discounted the relevance of the Dillon theory, yet reasoned that Dillon was “apposite” because it applied the general principles of foreseeability, but not controlling because the plaintiff in Molien was not a “percipient witness” of the claimed negligent act, but instead was a “direct victim” thereof. (Molien, supra, 27 Cal.3d 916, 921-923.) The Molien court did not define “direct victim,” other than to say the risk of harm to the plaintiff from an erroneous diagnosis of syphilis was “reasonably foreseeable” and that “. . . the alleged tortious conduct of defendant was directed to [plaintiff] as well as to his wife.” (Id. at p. 923.)

Molien’s further departure from existing precedent, i.e., beyond Dillon, which was not even commented upon except in the dissent (post), lies in its willingness to award money to a plaintiff, in a negligence case, where there had been no monetary loss suffered either by reason of physical injury or otherwise. In this respect, Molien launched the courts on to a wholly uncharted sea without bearings or distances for fixing “a money award against one who unintentionally disturbs the mental tranquillity of another.” (Molien, supra, 27 Cal.3d 916, 933 (dis. opn. of Clark, J.).)

Soon after Molien loosed the floodgates of liability for emotional distress without accompanying physical injury, it became apparent to the intermediate courts that attempting to define duty and its breach, as they were accustomed to doing it in personal injury cases, was just not workable in purely emotional distress cases. Since Molien, as noted by Justice Puglia in Merenda (ante), the cases have proceeded without a uniform, orderly scenario by which such cases could be evaluated and decided in a prescribed, precedent-sanctioned manner. Despite this absence of uniformity, the most telling observation to be made of the post-Molien cases analyzed is that more have held against liability than for it (see appen.), indicating that the courts, in a majority of the post -Molien cases, have managed, one way or another, to find that elusive line referred to in Andalon, supra, 162 Cal.App.3d 600, 607.

In other words, common sense and practical necessity would not tolerate unlimited access to the legal system to anyone seeking to recover money from another who had unintentionally disturbed only the former’s mental tranquility, to paraphrase language quoted above from Justice Clark’s dissent in Molien, supra, 27 Cal.3d 916, 933. Thus, some manner of threshold screening of such cases was implicitly recognized. Molien itself provided the initial, limiting language of “direct victim,” without defining such victim other than in terms of reasonable foreseeability.

D.

Marlene F.

About nine years after Molien was decided, the Supreme Court granted review in Marlene F. to address the question of whether “the mother of a minor child [can] state a claim for the negligent infliction of emotional distress against the psychotherapist who, consulted to treat both mother and son, sexually molested the boy. . . .” (Marlene F., supra, 48 Cal.3d 583, 585.) Writing for a four-to-three majority on the emotional distress issue, Justice Arguelles said “. . . we hold she can.” (Ibid.)

The litigation which ensued involved two mothers and their respective teenage sons who had gone to the defendant clinic for counseling to relieve perceived psychological problems in the two mother-son relationships. Thereafter, both the-boys were sexually molested. This precipitated two actions which were later consolidated. As recited in the opinion, “[a]ll defendants successfully demurred to this cause of action. The Court of Appeal affirmed, acknowledging that the mothers had suffered from the mistreatment of their children but reasoning that they failed to state a claim under either the ‘bystander witness’ theory of Dillon [citation] or the ‘direct victim’ theory of Molien [citation], because they were neither present at the time the torts were committed nor the actual targets of the therapist’s unprofessional conduct.” (Marlene F., supra, 48 Cal.3d 583, 588.)

The Supreme Court reversed the judgment of the Court of Appeal, directing it to enter judgment reversing the trial court’s order sustaining defendants’ demurrers to the pertinent counts. (Marlene F., supra, 48 Cal.3d 583, 592.) In rationalizing the result it reached, the majority, after noting that the plaintiff husband in Molien was deemed a “direct victim” (id. at p. 589) and that in Molien “. . . our decision did not, however, purport to create a cause of action for the negligent infliction of emotional distress based solely upon the foreseeability that serious emotional distress might result” {ibid.), sought to match the plaintiff in Marlene F. to the plaintiff in Molien. In this respect, Marlene F. stated, “[i]n other words, the counseling was not directed simply at each mother and son as individuals, but to both in the context of the family relationship. And the complaint alleged that the discovery by the mothers of the therapist’s sexual misconduct caused them serious emotional distress, further disrupting that family relationship.” (Id. at p. 590.) To leave no doubt as to how it perceived the predicate for the breach of duty involved, the majority stated that “[i]t bears repeating that the mothers here were the patients of the therapist along with their sons, and the therapist’s tortious conduct was accordingly directed against both. They sought treatment for their children—as they had the right, and perhaps even the obligation, to do—and agreed to be treated themselves to further the purposes of the therapy. They were plainly entitled to recover for the emotional distress they suffered.” (Id. at p. 591, fn. omitted.)

Despite the characterization of the respective roles of the parties, Marlene F. never expressly labeled the plaintiff mothers as “direct victims.” It was content to adopt a holding that “[djamages for severe emotional distress, rather, are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two." (Marlene F., supra, 48 Cal.3d 583, 590, italics added.)

Justice Eagleson, with Chief Justice Lucas and Justice Panelli joining him, wrote separately, concurring only in the judgment. He stated flatly, “I do not, however, agree that a ‘direct victim’ theory of liability or Molien [citation], has any relevance to the plaintiffs’ right to recover. The conclusion of the trial court that the mothers had not stated a cause of action under Molien was correct. The court erred only in failing to recognize that the allegations of the complaint did state a cause of action for professional malpractice.” (Marlene F., supra, 48 Cal.3d 583, 599.) Expanding upon the foregoing position, Justice Eagleson declaimed further that “[t]he majority’s reliance on Molien, in this case, and its suggestion that permitting recovery is somehow novel although not a ‘dramatic step’ are inexplicable. The explain Molien that the plaintiff was a ‘direct victim’ did no more than distinguish and explain why the Molien plaintiff had not stated a cause of action as a ‘bystander’ victim whose emotional distress injury was caused by observation of an injury to another. [Citation.] Identification of the plaintiff as a ‘direct victim’ of the defendant’s negligence did not, however, explain the source of the duty which obligated the defendant for emotional distress damages—recovery which is normally permitted only as an item of ‘parasitic’ damages when the defendant is liable for another injury. The majority’s explanation here that the therapist’s ‘tortious conduct’ was directed at both the children and their mothers suffers from the same defect. It does not identify any tort other than negligence that supports the recovery of damages for emotional distress, and thus supports negligent infliction of emotional distress as an independent cause of action.” (Marlene F., supra, 48 Cal.3d 583, 600, citing Dillon.)

E.

Thing

Just 13 days after Marlene F. was handed down, the Supreme Court issued its opinion in Thing. There, a child was seriously injured when struck by defendant while driving his automobile. The plaintiff mother did not see the actual impact but learned of it soon afterward and then witnessed her son lying unconscious in a bloody heap. In the litigation which followed, the mother pursued a Dillon theory but was thwarted by the defendant’s successful motion for summary judgment. The Court of Appeal reversed and was in turn reversed by the Supreme Court, which reinstated the judgment for the defendant driver.

In holding against liability, the Supreme Court, in a split decision, reaffirmed the limited and specific Dillon criteria applicable in cases involving an emotionally traumatized family bystander, and criticized Molien for “neither establishing] criteria for characterizing a plaintiff as a ‘direct victim’ nor explaining] the justification for permitting ‘direct’ victims to recover when ‘bystander’ plaintiffs could not.” (Thing, supra, 48 Cal.3d 644, 658.) Continuing, Justice Eagleson kept up his unrelenting attack on Molien in observing, however, that, “[t]he immediate effect of the decision, however, was to permit some persons who had no prior relationship with the defendant that gave rise to a duty, who did not suffer physical injury as a result of emotional distress, who did not observe the negligent conduct, and who had not been at or near the scene of the negligent act to recover for emotional distress on a pure foreseeability-of-the-injury basis. The limitations on recovery for emotional distress that had been suggested in the Dillon ‘guidelines’ were not applicable to ‘direct’ victims of a defendant’s negligence.” (Thing, supra, 48 Cal.3d 644, 658-659.)

For our purposes, Thing is a tour de force in commenting on the subject of negligent infliction of emotional distress. More particularly, it is useful in a manner similar to that in which we have invoked Dillon. While Dillon was at pains to instruct that duty is a shorthand label to be affixed after a policy decision has been made that liability shall attach (Dillon, supra, 68 Cal.2d 728, 734), Thing is a similar exercise in discrediting any meaningful significance of foreseeability (relied upon in Molien, ante) as a predicate for determining duty in purely emotional distress cases. (Thing, supra, 48 Cal.3d 644, 663-664.)

In the section of the opinion entitled “Clarification of the Right to Recover for NIED” (negligent infliction of emotional distress), Justice Eagleson states, “[t]he Dillon experience confirms, as one commentator observed, that ‘[f]oreseeability proves too much. . . . Although it may set tolerable limits for most types of physical harm, it provides virtually no limit on liability for nonphysical (48 Cal.3d at p. 663, italics added.) He then delivers the coup de grace in stating that, “[i]t is apparent that reliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate when the damages sought are for an intangible injury.” (Thing, supra, 48 Cal.3d 644, 664.) In view of the foregoing, we cannot resist recalling that Witkin is oft wont to lyricize, in the course of his many and storied public orations, “on a clear day some courts can foresee forever.”

F.

Burgess

The Thing court’s repudiation of foreseeability in emotional distress cases was echoed three years later in Burgess. In Burgess, after the plaintiff mother went into labor at a lying-in hospital, Dr. Gupta, the real party, detected a prolapsed umbilical cord, i.e., the cord was strangling the child. Before an emergency caesarean section could be performed, the child was deprived of an adequate oxygen supply for about 44 minutes. Such deprivation caused permanent brain damage. In the litigation which followed, in addition to suing for alleged medical malpractice, the mother sought damages for negligent infliction of emotional distress. The child died during the initial stage of the litigation, and the suit for wrongful death action later filed was consolidated with the earlier action.

Dr. Gupta moved for summary adjudication of the count for negligent infliction of emotional distress. The trial court granted the motion, treating the case as one involving a traumatized family bystander who had failed to meet the criteria for recovery on that theory. The mother’s writ petition, challenging the trial court order, was granted by the Court of Appeal; thereafter, the Supreme Court elected to grant review, “in order to address the recurring question of whether a mother can recover damages for the emotional distress suffered as a result of a negligent delivery causing injury to her child.” (Burgess, supra, 2 Cal.4th 1064, 1071.)

The Supreme Court ruled that the mother was not a bystander but “may state a claim for [adjunct] damages for serious emotional distress arising from the negligent delivery of her child.” (Burgess, supra, 2 Cal.4th 1064, 1085.) After excluding from the mother’s prospective recovery any amounts for loss of filial consortium, the court went on to state that the mother’s recovery was limited to damages for her emotional distress arising “from the ‘abnormal event’ of participating in a negligent delivery and reacting to the unexpected outcome of her pregnancy with resulting ‘ “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.” ’ ” (Id. at pp. 1084-1085.)

Although it was presented with the occasion to overrule Molien and thereby to roll back the boundaries of liability for purely emotional distress to the Dillon perimeter, the Supreme Court declined to do so. Instead, in Burgess it observed that, “The great weight of this criticism [of Molien] has centered upon the perception that Molien introduced a new method for determining the existence of duty, limited only by the concept of foreseeability. To the extent that Molien . . . stands for this proposition, it should not be relied upon and its discussion of duty is limited to its facts.” (Burgess, supra, 2 Cal.4th 1064, 1074.)

After this mild criticism of Molien, the Burgess court, as earlier noted, pointedly discounted foreseeability as a meaningless guideline for measuring duty in this kind of case (Burgess, supra, 2 Cal.4th 1064, 1074), and then concluded nevertheless that . . other principles derived from Molien . . . are sound: (1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently at p. 1074, italics added, citing Marlene F.) In sum, Burgess reaffirmed the Molien seminal pronouncement that actions by direct victims of negligently inflicted emotional distress are viable. (Burgess, supra, 2 Cal.4th 1064, 1074.)

More important and providing the linchpin to our analysis, Burgess at last delivered the sorely needed pronouncement which defined a “direct victim” as used in Molien but not therein defined. Burgess stated that the presence of a preexisting relationship between the parties is that “which defines the phrase ‘direct victim.’ That label signifies nothing more.” (Burgess, supra, 2 Cal.4th 1064, 1074.)

Parenthetically, with reference to the language “preexisting relationship,” the facts in Burgess reflect that such relationship had been consensual. As a result, we could only conclude, when the Burgess court referred to a “preexisting relationship” as necessary for there to have been a direct victim of a defendant’s negligence in purely emotional distress cases, that the court implied that such relationship had to be consensual. This refinement of the definition is justified because it reflects the actual nature of the relationships which existed in Burgess as well as in Marlene F. and in a substantial number of post -Molien authorities dealing with whether there should be an award of damages to direct victims for purely emotional distress. (Infra.)

III.

The Test’s First Prong—a Preexisting Relationship

It is from the Burgess definition of “direct victim” that we have synthesized, so to speak, the first prong of the test we recommend. More particularly, it can fairly be hypothesized from the Burgess pronouncements that the threshold question or first prong of our recommended test is to ask if there has been a preexisting, consensual relationship between the emotionally distressed plaintiff and the allegedly offending defendant. If not, that plaintiff is not in the class of persons whom Molien and Burgess perceive as having a protected interest in being free of the negligent infliction of emotional distress. If there has been such a relationship, the policy inquiry into liability, featuring a search for the Andalón line, can continue.

A.

Preface to Analysis of the Post-Molien Cases

With the foregoing Burgess, direct-victim definition (preexisting relationship) established as the basis for the initial screening of cases for purely emotional distress, we set about examining a collection of 26 post -Molien, emotional-distress cases, besides Marlene F. and Burgess. This effort took the form of a search for that “line between liability and nonliability” recognized in Andalon, supra, 162 Cal.App.3d 600, 607. The table, attached as an appendix, groups these 26 cases in a variety of ways. There is a group, all predating Burgess except one, where the courts ruled against liability at the outset because plaintiffs were held not to be direct victims. There is another group where the courts, even though there was a preexisting relationship, yet denied liability for policy reasons. Finally, there is a group of direct-victim cases where recovery was allowed. In two of this latter group, there had been no preexisting relationship between the parties. In the first of these “hybrid” cases, the plaintiff was identified as a direct victim because of having also been the victim of other tortious conduct. In the second, the court implied that plaintiff was a direct victim by invoking Molien where the plaintiff had also been the victim of other tortious conduct.

We also decided it useful to identify specially the medical malpractice cases and the legal malpractice cases. It appears that those two groups of decisions are developing in their own directions of disposition. (Infra.)

Otherwise we classified the cases in the catalogue as involving either adjunct or nonadjunct claims for emotional distress damages. These classifications involve whether such claims were asserted in addition to other claims for damages (thus, adjunct) or whether such claims stood alone (thus, nonadjunct).

Before turning to this detailed analysis, two observations are in order. First, in none of these 26 cases has there been recovery for negligent infliction of emotional distress unless the plaintiff was first characterized as a direct victim, even as defined in the two “hybrids” noted. Thus, except for these “hybrids,” each of the recovering “direct victims” had a preexisting consensual relationship with his or her defendant. Second, there is no uniformity in the way the courts approached their decisional task in these cases. In other words, there is no common ratio decidendi shared by the 26 cases analyzed.

B.

Analysis of the 26 Post-Molien Cases

1.

Nondirect Victim Cases

Responding to the first prong of the approach we have evolved, the initial grouping contains cases in which the courts held that the plaintiffs could not recover because they were not direct victims, so ruling of course without inquiring whether a preexisting relationship existed between the parties. This was to be expected; all but one are pre-Burgess cases. The 11 cases in which the panels held that the plaintiffs were not direct victims and hence not entitled to recover include: Cooper v. Superior Court (1984) 153 Cal.App.3d 1008 [200 Cal.Rptr. 746] (Cooper); Wiggins v. Royale Convalescent Hospital (1984) 158 Cal.App.3d 914 [206 Cal.Rptr. 2] (Wiggins); Soto v. Royal Globe Ins. Co. (1986) 184 Cal.App.3d 420 [229 Cal.Rptr. 192] (Soto); Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884 [231 Cal.Rptr. 96] (Martinez); Kossel v. Superior Court (1986) 186 Cal.App.3d 1060 [231 Cal.Rptr. 183] (Kossel); Anderson v. Northrop Corp. (1988) 203 Cal.App.3d 772 [250 Cal.Rptr. 189] (Anderson); Holliday v. Jones (1989) 215 Cal.App.3d 102 [264 Cal.Rptr. 448] (Holliday); Golstein v. Superior Court (1990) 223 Cal.App.3d 1415 [273 Cal.Rptr. 270] (Golstein); Burger v. Pond (1990) 224 Cal.App.3d 597 [273 Cal.Rptr. 709] (Burger); Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149 [276 Cal.Rptr. 470] (Schwarz), and Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828 [10 Cal.Rptr.2d 748] (Evan F.). All of the foregoing cases except Evan F. predated Burgess; Evan F. was issued a month after Burgess and relied upon its direct-victim definition.

Of the foregoing, Martinez, Kossel and Golstein were medical malpractice cases. Martinez was a case in which a child suffered permanent neurological damage at birth; nevertheless, in a pr e-Burgess decision, the court readily rationalized the result reached by holding that the parents were not direct victims in the Molien sense.

Likewise, in Kossel, where the surviving spouse sued for medical malpractice following her husband’s death from Hodgkins disease, the intermediate court, in denying the plaintiff’s petition for a writ after the defendant doctor’s demurrer to the emotional distress count was sustained (and after an exhaustive dissection of Molien) held the plaintiff surviving spouse not to be a direct victim of the doctor’s negligence.

In Golstein, where the defendant hospital had negligently administered a fatal overdose of radiation to the plaintiffs’ child during a treatment for curable cancer, the defendant’s demurrer to the emotional distress count was sustained and the parents’ petition for a writ was denied. In rationalizing the result it reached, the court treated Golstein solely as a Dillon case in which the parents did not meet the traumatized family bystander criteria.

No useful purpose could be served to abstract here all of the so-called nondirect victim cases. However, Schwarz is illustrative of the struggle the courts have had with this kind of case and thus merits discussion. After a bitter divorce which included an award of joint custody of the couple’s minor son, the plaintiffs son began a program of psychotherapy in the child outpatient department of the Medical Center at the University of California at Los Angeles. Upon the treating therapist’s recommendation, the plaintiff father agreed that the son live solely with his mother. From time to time the parents would engage in joint consultation with the therapist, and the plaintiff even agreed to undertake individual counseling.

After about a year of this, the mother advised the therapist that she was going to move to England and take the son with her. The therapist counseled the son that this would be the right thing for him to do and “aided, encouraged, assisted and facilitated [the son’s] mother in implementing her plan to remove [the son] from the country and conceal his whereabouts from plaintiff.” (Schwarz, supra, 226 Cal.App.3d 149, 152.)

Almost two years later the plaintiff learned that his son was in England. In the course of his unsuccessful efforts to gain custody of his son, the plaintiff learned of the therapist’s involvement in the deception. His palpable shock and emotional distress which resulted were of course foreseeable.

The case was dismissed at the trial court level after the defendant’s demurrer was sustained without leave to amend. On appeal, the reviewing court affirmed. Justice Spencer agonized as she worked through an exhaustive discussion of the authorities, including Dillon, Molien, Marlene F., Thing and Andalon. Her citation of Andalon led to discussion of Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386 [228 Cal.Rptr. 890] (Newton), relied upon heavily by the plaintiff. After criticizing Newton as an unwarranted extension of Andalon, Justice Spencer indicated her preference for Martinez, supra, 186 Cal.App.3d 884. Based on this authority, the Schwarz opinion confirmed “. . . when the negligence is alleged to have occurred during the medical treatment of the child, the defendant’s conduct is directed solely at the child, the intended third party beneficiary of the contract [citation], and not at the parent who enters into the contract solely as a surrogate for the minor child who otherwise could disaffirm it. [Citations.] In sum, the simple existence of a contract between a parent and a medical caregiver to provide medical treatment for a child is not in itself sufficient to impose on the caregiver a duty of care owed to the parent. [Because] plaintiff alleges nothing but negligence in the psychotherapeutic treatment of his son, he has failed to state a claim based on the negligent infliction of emotional distress.” (Schwarz, supra, 226 Cal.App.3d 149, 168, fn. omitted.) In our view, it would have been easier per Burgess to concede that the plaintiff qualified as a direct victim because of the preexisting relationship with the therapist, and then to reach a policy decision that the therapist’s conduct was not sufficiently outrageous to justify an award for purely emotional distress. (Cf. Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 800-801 [8 Cal.Rptr.2d 182].)

In the six pre-Burgess cases, not here abstracted: Cooper, Wiggins; Soto; Anderson; Holliday, and Burger, none of the plaintiffs had had a preexisting relationship with the defendants. Thus, this group of decisions correctly prophesied by implication the definition of direct victim finally announced in Burgess. As above noted, the last case in this group, Evan F., specifically relied upon the Burgess definition in holding that the plaintiff Eyrene, sister of the molested victim, was not a direct victim and hence not entitled to recover. (Evan F., supra, 9 Cal.App.4th 828, 840.)

2.

Direct Victim Cases

This major classification contains four subgroups. These include two groups of adjunct cases where recovery was either allowed or denied and two groups of nonadjunct cases where recovery was either allowed or denied.

a.

Adjunct Claims for Emotional Distress Denied

This subgroup of five cases includes three legal malpractice cases: Merendo, supra, 3 Cal.App.4th 1; Smith v. Superior Court (1992) 10 Cal.App.4th 1033 [13 Cal.Rptr.2d 133] Pleasant v. Celli (1993) 18 Cal.App.4th 841 [22 Cal.Rptr.2d 663] (Pleasant). The other two cases, not involving legal malpractice, are: Branch v. Homefed Bank, supra, 6 Cal.App.4th 793 (Branch) and Selden v. Dinner (1993) 17 Cal.App.4th 166 [21 Cal.Rptr.2d 153] (Selden).

In Merenda, the plaintiff and petitioner sought a writ of mandate from the Court of Appeal vacating an order which the trial court had issued in favor of defendant real party in interest, adjudicating plaintiff as not entitled either to damages for emotional distress or to exemplary damages in a legal malpractice case. The court declined to authorize issuance of a writ with respect to the emotional distress damages issue (although it did so with respect to the exemplary damages issue, ruling that such damages are recoverable under appropriate facts in a legal malpractice case).

Our interest is in that portion of the decision which ruled against entitlement to damages for emotional distress based on negligence. In rationalizing its decision, the court first noted that Molien had “abandoned the rule requiring physical impact or physical injury as a predicate for recovery for emotional distress caused by mere negligence.” (Merenda, supra, 3 Cal.App.4th at p. 7.) Merenda next observed, echoing the Andalón pronouncement eight years earlier, that, “[t]he fact that emotional distress damages may be awarded in some circumstances [citation] does not mean they are available in every case in which there is an independent cause of action founded upon negligence.” (Ibid.)

Merenda recognized that there is a legal duty to the client to avoid negligence in the practice of law. However, the court then discussed whether such duty extends to the risk of emotional distress and reviewed the factors to be considered in assessing duty as they are collected in Biakanja v. Irving (1958) 49 Cal.2d 647 [320 P.2d 16, 65 A.L.R.2d 1358] (Biakanja), and enhanced in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496] (Rowland). Justice Puglia then proceeded to state that “. . . foreseeability of serious emotional harm to the client [is] tenuous.” (Merenda, supra, 3 Cal.App.4th 1, 10.) After further discourse, he concluded “that recovery may not be had for emotional distress attributable to the legal malpractice alleged in this case.” (Id. at p. 11.)

In view of the fact that the plaintiff qualified as a direct victim per Burgess because of the preexisting relationship of attorney and client, we were led to conclude that a policy decision was made in Merenda that the circumstances were not sufficiently egregious or outrageous as to justify an adjunct award of additional damages for the negligent infliction of emotional distress.

Smith and Pleasant are replays of Merenda. While Smith was a writ case, Pleasant is demonstrative indeed because it involved reversal of a substantial jury award for emotional distress. The plaintiff’s newborn child died, apparently as a result of medical malpractice. She turned to the defendant, an attorney, to prosecute the case for her. As a result of legal malpractice, the statute of limitations was permitted to run on the medical malpractice claim. This led to the underlying litigation which included a count for negligent infliction of emotional distress. The jury awarded the plaintiff $350,000 for the wrongful death of her child, plus $5,000 for funeral expenses. It also awarded the plaintiff $500,000 damages for negligent infliction of emotional distress. (Pleasant, supra, 18 Cal.App.4th 841, 846.)

On appeal, the reviewing court modified the judgment by striking the $500,000 in damages for negligent infliction of emotional distress. (Pleasant, supra, 18 Cal.App.4th 841, 855.) After references to and varied discussions of Quezada v. Hart (1977) 67 Cal.App.3d 754 [136 Cal.Rptr. 815] (which it regarded as superseded by later Supreme Court holdings), and of Smith, Molien, Burgess, Holliday and Marlene F., the court in Pleasant zeroed in on Merenda. Pleasant stated flatly that Merenda's “analysis applies with equal force here.” (18 Cal.App.4th at p. 854.) Pleasant then quoted that analysis, “‘The moral blame attached to defendants’ conduct is only that which attends ordinary negligence. There is no suggestion of bad faith or reckless indifference to the plaintiff’s interest in emotional tranquility. The policy of preventing future harm is served by the sanction of compensation for the economic loss occasioned by the malpractice. The burden to the defendant of avoiding malpractice is of no moment since that burden has already been imposed. The principal consequences to the community of imposing an incremental liability for these damages are the additional costs of doing business as a lawyer and the benefits of socialization of the risk of emotional injury.’ ” (Ibid.) The court then concluded by observing, “In sum, a consideration of the factors listed in Christensen and Burgess leads us to the conclusion that emotional distress damages may not be recovered in this case as a matter of law.” (Ibid.)

In Branch, a case arising from an economic loss, the plaintiff, a former employee of the defendant bank, sued the bank, alleging a number of counts, including breach of contract and wrongful termination, along with both intentional and negligent misrepresentation. (Branch, supra, 6 Cal.App.4th 793, 797.) The plaintiff initiated the litigation after being lured away from a lucrative position in Los Angeles on the basis of effusive representations about bonuses, medical benefits and rapid salary increases—none of which materialized. After the plaintiff attempted to persuade the defendant bank to make good on its representations, he was stripped of all responsibilities and “assigned ‘busy work’; and he was placed in a cubicle, without a phone or even a trash can, and told to stay there and remain silent.” (Id. at p. 797.)

After a variety of both pretrial and trial motions and orders, the case went to the jury on only two theories of liability: 1) negligent representation and 2) wrongful termination in violation of public policy. (Branch, supra, 6 Cal.App.4th 793, 797.) The jury verdict awarded the plaintiff economic damages of $45,163 and emotional distress damages of $60,000. (Ibid.) On appeal, the economic damage award was affirmed and the emotional distress award was reversed. (Id. at p. 801.)

In rationalizing its reversal of the award of damages for negligent infliction of emotional distress, the Branch court observed generally that it believed the settled law to be, “. . . that damages for emotional distress are ordinarily not recoverable in an action for negligent misrepresentation when the injury other than emotional distress is only economic.” (Branch, supra, 6 Cal.App.4th 793, 798.) Otherwise, it stated, “[t]he general rule of damages permissible in negligence actions was set forth in Quezada[, supra,] 67 Cal.App.3d 754 . . . .” (Id. at p. 800.) The Branch court then went on to acknowledge (Quezada notwithstanding) that damages for purely emotional distress had been recovered in Allen v. Jones (1980) 104 Cal.App.3d 207, 215 [163 Cal.Rptr. 445] (mishandling of cremated remains), and Molien, supra, 27 Cal.3d 916, 930 (negligent advice to patient that she had syphilis, resulting in severe distress to her husband). It also noted that recovery had been allowed when negligence arose in a situation involving breach of a fiduciary duty or quasi-fiduciary duties, as in a failure to pay insurance proceeds (to an insured), citing Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566 [108 Cal.Rptr. 480, 510 P.2d 1032] and Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal.App.3d 917 [122 Cal.Rptr. 470]. In this connection, the Branch court concluded, “Our employee’s case fits into none of these exceptions to the general rule. Employee suffered no physical impact which caused injury. The claim arose from a rather typical negotiation for employment in a very prosaic business setting—a bank. While damage as the result of employee’s reliance on Bank’s negligent misrepresentations could be anticipated, nothing in the case suggests the peculiarly sensitive emotional trauma foreseeable in such cases as Allen v. Jones or Molien. While blameworthy, the Bank’s conduct in no sense can be described as ‘extreme’ or ‘outrageous,’ in terms of the conduct resulting in special damages in the insurance cases such as Gruenberg.” (6 Cal.App.4th at pp. 800-801, italics added.)

The plaintiff Branch, per Burgess, was a direct victim because of the preexisting relationship as an employee of the defendant bank. However, despite this relationship, the Branch court made a policy decision that the defendant bank’s conduct was not sufficiently outrageous to justify recovery. It said, “[r]ecovery for worry, distress and unhappiness as the result of damage to property, loss of a job or loss of money is not permitted when the defendant’s conduct is merely negligent. As has been stated elsewhere, ‘emotional distress is but “part of the human condition.” ’ ” (Branch, supra, 6 Cal.App.4th 793, 801.)

Continuing, “[l]oss by anyone of property or money and certainly loss of expected wages will normally produce mental anguish. ‘ “Complete emotional tranquility is seldom attainable in this world and especially will be found absent when one has been misled by negligent representations.” (Branch, supra, 6 Cal.App.4th 793, 801.) In concluding, the Branch court stated, “[recovery for the inevitable distress resulting from finding oneself the victim of a negligent tortfeasor is, however, limited to economic loss unless malice,