Filed 1/14/21 (u nmodified opn. attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

DYANA KO et al.,

Plaintiffs and Appellants,

v.

MAXIM HEALTHCARE SERVICES, INC., et al.,

Defendants and Respondents. B293672

(Los Angeles County Super. Ct. No. BC665656)

ORDER MODIFYING OPINION

NO CHANGE IN APPELLATE JUDGMENT

THE COURT: 
The above

- entitled opinion filed on December 23, 20 20 is
modified as follows:

On page 23, in footnote 12, delete the last sent ence containing the quote from the Restatement and replace it with the following :

As the 2012 Restatement Third of Torts observed, “Beyond the question of what aspects of an accident must be perceived, [the Restatement] leaves for2 future development whether the events must be perceived while the plaintiff is physically present or
whethe r contemporaneous transmission by some medium is sufficiently equivalent to physical presence. Continuing developments in communication technology will no doubt affect the determination.” (Rest.3d Torts (2012) § 48, comment e.)

There is no change in th e appellate judgment.

* PERLUSS , P. J. FEUER , J. RICHARDSON, J. **

** Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 12/23/20 (unmodified op inion) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

DYANA KO et al.

,

Plaintiff s and Appellants

,

v.

MAXIM HEALTHCARE SERVICES, INC., et al.

,

Defendant s and Respondents

. B29 3672

(Los Angeles County Super. Ct. No. BC665656 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert B. Broadbelt III , Judge. Reversed and
remanded with directions

. Law Office s of Ste v en P. Chang, Steven P. Chang, Gene H.
Shioda and Heidi M. Cheng for Plaintiff s and Appellant s

. Lewis Brisbois Bisgaard & Smith, Jeffrey A. Miller, Wendy S. Dowse

, Matthew S. Pascale, and Vijay J. Patèl for Defendant and Respondent Maxim Healthcare Services, Inc

. Beach Cowdrey Jenkins , Sean D. Cowdrey and Darryl C. Hottinger for Defendant and Respondent Thelma Manalastas.2 Dyana and Christopher Ko 1 appeal from a judgment of
dismissal entered after t he trial court sustained without leave to
amend the demurrers filed by defendants Maxim Healthcare Services, Inc. (Maxim)

, and Thelma Manalastas to the Kos’ third

a mended c omplaint. The Kos brought claims for negligence and negligent infliction of emotion al distress (NIED) alleging Manalastas, a vocational nurse employed by Maxim who worked

as an in

- home care giver for the Kos’ disabled son Landon , abused
Landon while the Kos were out of the house. T he Kos allege they
witnessed Manalastas abuse Landon in r eal time as they watched
the livestream of video and audio on Dyana’s smartphone from a “nanny cam” in the home

. 2 The trial court ruled the Kos could

not state a cause of action for NIED because they were not physically present when Landon was abused, and thus they could not satisfy the requirement established by the Supreme Court in Thing v. La Chusa (1989) 48 Cal.3d 644 , 668 ( Thing ) that to

recover on a n NIED claim, a bystander plaintiff must be “present at the scene of the injury

- producing event at the time it occurs
and

. . . then aware that it is causing injury to the victim.” On appeal the Kos contend their “ virtual presence ” during
Landon’s abuse through a real

- time audiovisual conne ction
satisfies the requirement in Thing of contemporaneous presence

.

1 We refer to Dyana and Christopher Ko together as the Kos and to Dyana by her first name to avoid confusion. We refer to the Kos’ son Landon Ko as Landon.

2 A “livestream” refers to “a broadcast of a live event streamed over the Internet .” (Merriam

- Webster’s Online Dict. (2020) < https://www.merriam

- webster.com/dictionary/ livestream > [as of Dec. 22 , 2020] , archived at <https://perma.cc/ 5FPP

- E9UE> .)3

We agree. I n the three decades since the Supreme Court decided Thing , technolog y for virtual presence ha s developed dramatically

, such that it is now common for families to experience events as they unfold through the live streaming of
video and audio . Recogni tion of an NIED claim where a person

us es modern technology to contemporaneously perceive an event causing injury to a close family member is consistent with the Supreme Court’s requirements for NIED liability and the court’s
desire to establish a bright

- line test for bystander recovery

. We reverse the judgment of dismissal and remand for further proceedings

. 3

3 We affi rm the trial court’s order sustaining Manalastas’s demurrer to the Kos’ third cause of action for negligence. The Kos have not presented any argument in their opening brief for reversal and have therefore forfeited the issue. ( People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [“If a party’s briefs do not provide legal argument and citation to authority on each point raised, ‘“the court may treat it as waived, and pass it without consideration.”’”]; Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 [“Issues not raised in the appellant’s opening brief are deemed waived or abandoned.”].) Further, in their reply brief the Kos clarify that they appealed only with respect to whether under the Supreme Court’s holding in Thi ng they can recover for emotional distress damages.4 FACTUAL AND PROCEDURAL BACKGROUND

A. The Incident
In April 2017 Landon w as two years old and had a genetic
disorder called Rubinstein

- Taybi Syndrome

. 4 Landon suffered from a number of health problems associated with the disorder

, including blindness in one eye, an inability to walk, difficulty hearing, severe developmental delays, and the need for a feeding tube. Landon required constant care and supervision. The Kos

, both of whom work ed, had two other children, and they hired Maxim to provide in

- home caretaking services for Landon for
when th ey were at work or otherwise unavailable. Manalastas

was a California licensed vocational nurse employed by Maxim
who was one of the caregivers Maxim provided t o the Kos.
Manalastas was a care giver for Landon f or more than a year prior to the incident. The Kos allege d on information and belief
that Manalastas had a criminal record and Maxim failed to perform an adequate background check on her.
On April 22, 2017 the Kos took their two older children to a youth basketball tournament. During the tournament Dyana “opened a phone application that allows her to live

- stream video and audio from her home that is being shot in real time on a ‘nanny cam.’” There after, the Kos “watched and heard in shock
and horror

, while the incident was happening in real time, as

. . . Manalastas physically assaulted Landon by acts including hitting, slapping, pinching and shaking Landon in a violent
manner.” The Kos called 911 to report the abuse, and police

4 The facts are taken from the operative third amended complaint.5

officers were dispatched to the Ko s ’ residence. The Kos drove home and showed the police officers video of Manal a stas abusing
Landon , leading to Manal astas ’s arrest

. Dyana reported the abuse to Maxim, which reassigned Man alastas but did not
terminate her. The Kos allege on information and belief that Manalastas’s
abuse caused L andon to have one of his eyes surgical ly removed
and other physical injuries

. Landon passed away on April 24, 2018, during the pendency of this act ion.

B. Procedural History
The Kos filed this action on June 21, 2017 alleging on
behalf of Landon claims for battery, assault, and negligence

, and
a claim for NIED on behalf of the Kos

. A fter Landon passed away, the court granted the Kos leave to file a third amended complaint re alleging the first two causes of actions for battery
and assault as survivor claims on behalf of Landon’s estate , the third cause of action for negligence on behalf of the Kos and
Landon’s estate , and t heir fourth cause of action for NIED

. O n June 21, 2018 the Kos filed the operative third amended complaint.
Maxim demurred to the fourth cause of action for NIED

, and it filed a motion to strike all references to general damages and pain and suffering i n the survivor causes of actio n pursuant to Code of Civil Proced u re section 377.34. 5 Manalastas demurred

5 Code of Civil Procedure section 377.34 provides, “ In an action or proceeding by a decedent’s personal representative or successor in int erest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the6

to the cause s of action for NIED and negligence

, and , similar to Maxim, moved to strike the allegations of Landon’s pain and suffering. After hearing argument, the trial court sustained Maxim’s
and Manalastas’s dem urrers and granted the ir motions to strike

. The court found w ith respect to the Kos’ fourth cause of action for NIED, citing to Thing, supra , 48 Cal.3d at p age 668 , that “it is required to follow existing case law, which provides that NIED bystander liability is limited to circumstances where a plaintiff is physically ‘present at the scene of the injury producing event at the time it occurs.’” The court noted the “appellate cour ts have not defined what it means to be ‘present at the scene’ or the parameters of this element,” and “[i]t is unclear how existing case law on NIED applies to existing technology, such as live

streaming video and audio on smart phones,” but the “cases

up holding NIED liability have only involved plaintiffs with some physical proximity to the injury

- producing event at the tim e it
occurred.” The court suggested “[o]ne approach might be to deem [the presence] element satisfied as long as a plaintiff can show that he or she contemporaneously observed an injury

- producing event at the time it occurred,” but the court concluded “it is not this court’s role to change, but instead to follow

, existing law as stated by the California Supreme Court and the Court of Ap peal.” The court denied leave to amend, finding the Kos had failed to show how they could amend the complaint to state an NIED
claim. The court also sustained without leave to amend Manalastas’s demurrer to the third cause of action for negligen c e ,

decedent sustained or incurred before death

. . . and do not include damages for pain, suffering, or disfigurement. ”7

findi ng Manalastas did not owe a duty to the Kos and the claim was merged into the Kos’ NIED cause of action.
On August 28, 2018 the trial court entered an order
sustain ing without leave to amend defendants’ demurrer s to the
fourth cause of action for NIED and Manalastas’s demurrer to the Kos’ third cause of action for negligence and granting the
motions to strike . On November 2, 201 8 the Kos filed a notice of appeal from a “ [

j ] udgment of dismissal after an order sust aining
a demurrer” and an order “[d]i smissing Plaintiffs’ individual causes of action for negligence and/or negligent infliction of
emotional distress

. ” H owever the trial court had not yet entered a judgment or order of dismissal.
On November 1 0 , 2020 , at the request of the Kos, the clerk entered a dismissal without prejudice of their remaining third cause of action for negligence against Maxim. On the same date
the trial court entered a judgment in favor of Maxim and
Manalastas on the Kos’ fourth cause o f action for NIED and in
favor of Manalastas on the Kos’ third cause of action for negligence

. 6 We consider the Kos’ premature notice of appeal a valid “notice of appeal filed after judgment is rendered but before it is entered,” and treat the notice as filed immediately after

6 The judgment is signed by Judge Deirdre Hill. On November 3, 2020 we issued an order directing the Kos to file with this court a file

- stamped copy of a signed judgment or order of dismissal as to their claims against Maxim or Manalastas , or we would dismiss t heir appeal. On November 11 the Kos request ed we take judicial notice of the November 10, 2020 judgment and voluntary dismissal of the Kos’ third cause of action for negligence against Maxim. We grant the Kos’ request pursuant to Evidence Code section s 4 52, subdivision (d) , and 459

, subdivision (a).8

entry of judgment. (Cal. Rules of Court, rule 8.104(d)(1) ; see Valdez v. Seidner

- Miller, Inc . (2019) 33 Cal.App. 5th 600, 607 .)

DISCUSSION

A. Standard of Review “In reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] Where the demurrer was sustained without leave to amend, we consider whether the plaintiff could cure the defect by an amendment.” ( T.H. v. Novartis Pharmaceuticals Corp . (2017)

4 Cal.5th 145, 162; accord, Centinela Freeman Emergency
Medical Associates v. Health Net of California, Inc . (2016)

1 Cal.5th 994, 1010 .) “ In making this determination, we must accept the facts pleaded as true and give the complaint a reasonable interpretation. ” ( Mathews v. Becerra (2019) 8 Cal.5th 756, 762 ; accord

, Lee v. Hanley (2015) 61 Cal.4th 1225, 1230

. ) “A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.” ( Carman v. Alvord (1982) 31 Cal.3d 318, 324; accord, Heshejin v. Rostami (2020) 54 Cal.App. 5th 984, 992 .) A trial court abuses its discretion by sustaining a demurrer without leave to amend where “‘there is a reasonable possibility that the defect can be cured by amendment.’” ( Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100; accord, City of Dinuba v.
Co unty of Tulare (2007) 41 Cal.4th 859, 865.) “‘The plaintiff has the burden of proving that [an] amendment would cure the legal defect, and may [even] meet this burden [for the first time] on9

appeal.’” ( Sierra Palms Homeowners Assn. v. Metro Gold Line
Foo thill Extension Construction Authority (2018) 19 Cal.App. 5th 1127, 1132; accord, Aubry v. Tri

- City Hospital Dist. (1992)

2 Cal.4th 962, 971.)

B. Bystander NIED Claims

1. Dillon v. Legg and its progeny
The California Supreme Court first recognize d a bystander’s claim to recover emotional distress damages for injuries negligently caused to a family member in Dillon v. Legg (1968) 68 Cal.2d 728 ( Dillon ). Prior to Dillon , “ in negligence cases the right to recover for emotional distress had been limited to circumstances in which the victim was himself injured and
emotional distress was a ‘ parasitic ’ item of damages, or if a plaintiff who had been in the ‘ zone of danger ’ did not suffer injury from impact, but did suffer physical injury as a result of the

e motional trauma. ” ( Thing, supra , 48 Cal.3d at p. 651 ; see Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 302 ( Amaya ) [ mother could not recover for physical injury caused by emotional shock from watching the driver of a delivery truck run
over her 17

- month

- old son as she stood nearby and watched helplessly because she was not in the zone of danger] , overruled by Dillon

, at pp. 732

- 733 .)
In Dillon , the Supreme Court overruled Amaya , and it held the plaintiff mother could recover for the emot ional shock and physical injury resulting from watching the defendant negligently run over her young daughter who was crossing the

street
, where the mot her was “ ‘ in close proximity to the

. . . collision and personally witnessed said collision

, ’ ” al though she was not within the zone of danger and did not fear for her own10

safety. 7 ( Dillon, supra

, 68 Cal.2d at pp. 731

- 733 .) The Dillon

c ourt rejected the premise of earlier opinions declin ing to recognize bystander NIED claim s that allowing recovery would “invite fraudulent claims and it would involve the courts in the hopeless task of defining the extent of the tortfeasor’s liability.” ( Id. at p. 730.) The c ourt observed the law of torts would limit

“ the otherwise potentially infinite liability ” that could result from allowing bystander NIED claims by holding a “ defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable. ” ( I d. at p. 739.)
T he Dillon c ourt acknowledged that determination of foreseeability would require a case

- by

- case analysis for which it
could not establish an “immutable rule.” ( Dillon

, supra , 68 Cal.2d at p. 7 40 .) But the court enunciated three factors to guide the courts in determining reasonable foreseeability : “ In determining

. . . whether defendant should reasonably foresee the injury to plaintiff, or

, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (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

7 Dillon concerned NIED claims by both the mother and sister of the victim. The trial court granted the defendant’s motion for judgment on the pleadings as to the mother’s emotional distress claim because she was not within the zone of danger, but it denied the motion as to the surviving sister’s claim because she may have been within the zone of danger or feared for her own safety. ( Dillon, supra , 68 Cal.2d at p. 732.)11

learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim we re closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. ” 8 ( Id. at pp. 740

- 741.) With respect
to the first two factor s , the Supreme C ourt explained, “ [T]he degree of foreseeability of the thir d person’s injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm th an to anticipate that someone distant from the accident will suffer more than a temporary
emotional reaction. ” ( Id. at p. 741.)
In the decades after Dillon was decided, the Supreme Court
and Court s of Appeal recognized viable NIED claims in
circumstances the Supreme Court in Thing later characterize d as an “expansive progression” that “created more uncertainty.” ( Thing, supra , 48 Cal.3d at p. 6 56 .) I n Krouse v. Graham (1977)
19 Cal.3d 59 , 76 (

Krouse )

, the Supreme Court held “ the Dillon

8 The Dillon court limited its ruling t o situations where, as alleged there, the plaintiff suffers physical harm from an emotional shock, explaining , “[W]e deal here with a case in which plaintiff suffered a shock which resulted in physical injury and

we confine our ruling to that case.” ( Dill on, supra , 68 Cal.2d at

p. 740.) In Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916
, 929

- 930 the Supreme Court expanded liability, holding a plaintiff may recover f or NIED absent any physical manifestation of emotional distress, reasoning, “[T] he attempted distinction between physical and psychological injury merely clouds the issue. [W] hether the plaintiff has suffered a serious and compensable injury should not tu rn on this artificial and often arbitrary classification scheme .”12

requirement of ‘sensory and contemporaneous observance of the accident’ does not require a visual perception of the impact causing the death or injury.” The c ourt upheld a pla i ntiff
husband’ s NIED claim where the defendant’s car crashed into
and killed t he plaintiff’s wife as she was unloading groceries from the family car and her husband sat in the driver’s seat, explaining that “although [the husband] did not see [the wife] struck by defendant’s automobile, he fully perceived the fact that
she had been so struck, for he knew her position an instant before the impact, observed defendant’s vehicle approach her at a high speed on a collision course, and realized that defendant’s car must have struck her.” ( Id. at p. 76.) The Supreme Court again clarified D illon ’s second factor of sensory and contemporaneous observance i n Ochoa v. Superior
Court (1985) 39 Cal.3d 159, 167 ( Ochoa )

, in which the court held
the second factor did not bar NIED claims that do not involv e the plaintiff’s observa tion of a “sudden occurrence

. ” The Supreme Court held the trial court erred in sustaining a demurrer to a n NIED claim by a mother who watched her 13

- year

- old son suffer excruciating pain from negligent treatment of his pneumonia

ov er several days in a juvenile detention facility. ( Id. at pp. 163

- 164.) The c ourt concluded, “We are satisfied that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted.” ( Id.

at p. 170.)
T he Supreme Court in Thing later described its holdings in
Krouse and Ochoa as consistent with Thing ’s revised requirements for bystander NIED claims

. ( Thing, supra

, 48 Cal.3d at pp. 656, 660

- 661, 668

. ) But the Thing court13

disapproved the post

- Dillon Court of Appeal opinions in
Archibald v. Braverman (1969) 275 Cal.App. 2d 253 ( Archibald )
and Nazaroff v. Superior Court (1978) 80 Cal.App. 3d 553 ( Nazaroff

) . ( Thing , at p. 668.) In Archibald , the Court of Appeal held a mother could pursue an NIED claim against defendants who provided to her 13

- year

- old son gunpowder that exploded and severely injured her son. ( Archibald

, at pp. 254

- 255.) The
mother did not witness the explosion, but she appeared at the scene within “moments” of the explosion to render aid to her son, and upon observing his injuries, she suffered severe shock and mental illness. ( Id. at p. 255.) The Court of Appeal reasoned the
second Dillon factor of contemporaneous observance of the accident was met where the mother’s shock was “fairly contemporaneous with the accident” although she was not present at the time of the accident. ( Id. at p. 256.)
In Nazaroff

, the Court of Appeal upheld a mother ’s NIED
claim arising from the death of her three

- year

- old son where she
realized the boy must have fallen into a neighbor’s pool when she heard a neighbor scream her son’ s name, and as she ran to the pool, she saw her son being pulled from the water and given

mou th

- to

- mouth resuscitation. ( Nazaroff, supra

, 80 Cal.App. 3d

at p. 559.) The Court of Appeal reasoned it was not necessary for the mother contemporaneously to observe the accident if she
suffered “the direct emotional impact from the contemporaneous observation of the immediate consequences of the defendants’ negligent act, which was the proximate cause of th e injury and death of her son.” ( Id . at p. 566.)14 2. Thing and its progeny As discussed, the Supreme Court in Thing, supra

, 48 Cal.3d at page s 656 to 657 expressed concern the Dillon guidelines had produced unpredictable outcomes and expanded liability to al low recover y for emotional distress in situations where plaintiffs were not present at the scene at the time of the
accident , instead learning of the ir loved one’s injury when they
later arrived at the scene

. The Thing c ourt observed , “ If the

consequences of a negligent act are not limited an intolerable burden is placed on society. A ‘bright line in this area of the law
is essential.’” ( Thing , at p. 664 .)
Th e Thing c ourt replaced the Dillon factors with three requirements to support a bystander NIED claim: “ [A] plaintiff

may recover damages for emotional distress caused by observing [a] negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury vi ctim; (2) is present

at the scene of the injury

- producing event at the time it occurs
and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress

— a reaction beyond that which would be anticipated in a d isinterested
witness and which is not an abnormal response to the
circumstances.” ( Thing, supra

, 48 Cal.3d at pp. 667

- 668 , fns.
omitted .) In adopting these requirements, the Supreme Court reasoned, relying on its earlier opinion i n Ochoa, supra , 39 Cal.3d at page 165, footnote 6, “ The impact of personally observing the injury

- producing event in most, although concededly not all, cases distinguishes the plaintiff ’ s resultant emotional distress
from th e emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not15

the traumatic cause of the injury. Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct
i s possible by limiting the right to recover for negligently caused emotional distress to plaintiffs who personally and contemporaneously perceive the injury

- producing event and its traumatic consequences. ” ( Thing, supra

, 48 Cal.3d at p. 666 .) Applying th e three requirements , the Thing court concluded the plaintiff mother could not recover for NIED where she was nearby when her son was struck by a car , but first became aware
of the accident when she arrived and saw him bloody and
unconscious on the roadway. ( Id. at pp. 647

- 648 , 669 .)
T he Supreme Court revisited the second Thing requirement of contemporaneous presen ce i n Bird v. Saenz (2002)
28 Cal.4th 910 ( Bird ). There

, the Supreme Court held the adult daughters of a woman who suffered the negligen t transection of an artery during a medical procedure could not maintain NIED claims against the mother’s doctors because they were not present in the operating room and only learned of the accident when they were later told by another surgeon of the accident, even though they suffered emotional distress from learning their mother had suffered a possible stroke, seeing her rushed to

surgery , and hearing a n urgent call over the hospital loudspeaker for a thoracic surgeon. ( Id . at pp. 916

- 917.) The court explained

, “To be sure, Thing ’s requirement that the plaintiff be contemporaneously aware of the injury

- producing event has not been interpreted as requiring visual perception of an impact on the victim. A plaintiff may recover based on an even t perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative

. [Citation .] [¶]
B ut this slight degree of flexibility in the second Thing16

requirement does not aid plaintiffs here because they had n o sensory perception whatsoever of the transection at the time it occurred.” ( Ibid. ; compare Keys v. Alta Bates Summit Medical
Center (2015) 235 Cal.App. 4th 484, 487, 490

- 491 [ s ubstantial evidence supported NIED judgment for sister and daughter of a

surge ry patient who observed the patient’s inability to breath e following improper intubation ].)
The Kos in their opening brief survey the Court of Appeal
decisions over the last three decades that ha ve construed the
second Thing requirement

. The most analogous case is Wilks v. Hom (1992) 2 Cal.App. 4th 1264, 1 270

- 1272 ( Wilks )

, which the Supreme Court cited with approval in Bird , supra , 28 Cal.4th at

page 916

. In Wilks

, a mother and her three young daughters
were in their home when a gas explos ion killed one daughter and severely burned another. ( Wilks

, at p. 1267.) The mother was
not in the same room as the daughte r s when the explosion impacted them , but she was aware they were in their bedroom s when she experienced the force of the explosion and saw a bright flash from one of the girl ’s room s , causing her to be “sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her child.” ( Id . at p. 1271.) The
Wilks c ourt concluded this was “sufficie nt to establish the requirement that she personally and contemporaneously perceived the injury

- producing event and its traumatic consequences.” ( Id

. at p. 1273. ) By contrast, i n Ra v. Superior Court (2007) 154 Cal.App. 4th

142
, 144

- 145 ( Ra )

, we concluded the plaintiff could not recover on
her NIED claim arising from her emotional distress upon hearing
a loud crash in a clothing store from the area where her husband was shopping, then learning a sign had fallen on his head. We17

concluded the plai ntiff’s “ fear for her husband ’ s safety at the time she heard the loud bang emanating from the part of the store where she knew he was shopping and her belief the possibility of his injury was more likely than not are insufficient as a matter of
law to esta blish contemporaneous awareness of her husband ’ s injuries at the time of the injury

- producing accident within the meaning of

” Thing and Bird

. ( Ra

, at p p

. 152

- 153 ; accord, Fife v.
Astenius (1991) 232 Cal.App. 3d 1090 [evidence plaintiffs heard
the sounds an d saw debris from an automobile collision outside their yard without realizing their sister had been injured until they reached the accident minutes later was insufficient to satisfy the second Thing requirement].) Similarly, in Fortman v. F ö rvaltningsbolaget Insulan AB (2013) 212 Cal.App. 4th 830, 832

- 834 ( Fortman )

, the Court of Appeal concluded the sister of a deceased scuba diver could not recover NIED damages from the manufacturer of allegedly
defective scuba diving equipment after she witn essed the death of her brother during a dive because she contemporaneously observed him falling unconscious but believed it was a heart attack, not the result of defective equipment. S urveying Thing

, Ochoa , and Dillon , the court reasoned, “ From these pert inent bystander cases, it is clear that to satisfy the second Thing requirement the plaintiff must experience a contemporaneous sensory awareness of the causal connection between the
defendant ’ s infliction of harm and the injuries suffered by the
close rel ative. ” ( Fortman

, at p. 836; accord, Golstein v. Superior
Court (1990) 223 Cal.App. 3d 1415 , 1427 [parents who watched as their son underwent radiation therapy but only later discovered he had been overexposed when he developed symptoms of radiation poisoning could not recover for NIED ] .)18

C. The Kos Alleged Sufficient Facts To Constitute an NIED
C laim Based on Their Virtual Contemporaneous Presence During Landon’s Abuse The Kos urge us to interpret the second Thing factor requiring contemporaneous presence at the scene of an injury

producing event to include “virtual presence” in light of the
techn ological advances that have occurred since Thing was decided 30 years ago. Maxim and Manalastas argue for a narrower interpretation of presence, noting the Supreme Court and Courts of Appeal have never included within their description of presence the con cept of virtual presence. 9 At least not until now. We find the Kos’ argument persuasive.
We read the Thing requirement that a plaintiff be “ present

at the scene of the injury

- producing event at the time it occurs
and is then aware that it is causing injury to the victim ” ( Thing,

supra , 48 Cal.3d at p. 66 9 ) in light of the court’s admonition that

9 Maxim argues the dictionary definition of “present” shows that a person must be physically present, but even the Merriam

Webster definition relied on by Maxim defines the adjective “presen t” to mean “being in view or at hand.” ( See Merriam

Webster’s Online Dict. (2020) < https://www.merriam

webster.com/dictionary/present > [as of Dec. 22 , 2020] , archived at <https://perma.cc/3CTG

- M299> .) Maxim’s reliance on In re J.G. (2008) 159 Cal.App. 4 th 1056, 1065
, is similarly misplaced. The Court of Appeal there concluded an inmate had a right to be

“ ‘ physically present ’ ” at a parole hearing (instead of a telephonic appearance) where the Penal Code provided inmates had a right

“ ‘ to be present ’ ” and “ ‘ personally appear ’ ” at all parole suitability hearings. ( Ibid .) The statutory interpretation of the Penal Code provision at issue in J.G. is not before us.19

recovery for NIED must be limited to “plaintiffs who personally and contemporaneously perceive the injury

- producing event and its traumatic consequenc es.” ( Id

. at p. 666 .) The Thing court’s effort to draw a bright line based on contemporaneous perception is illustrated by its failure to disapprove Krouse , supra , 19 Cal.3d 59, in which the husband was not physically present outside the
car where his wi fe was killed, but he contemporaneously perceived that she had been struck by seeing the defendant’s approaching car and knowing where his wife was positioned, and
the court’s disapproval of Archibald , supra , 275 Cal.App. 2d at pages 254 to 255 and Nazaroff , supra , 80 Cal.App. 3d at page 559
, in which the parents only learned of the injuries to their children after the events (the explosion in Archibald and the son falling into the pool in Nazaroff ). The Bird court’s approval of Wilks,

supra , 2 Cal.A pp. 4th at page 1273 (see Bird, supra , 28 Cal.4th at

pp. 916

- 917) is consistent with this bright line temporal
distinction

— in Wilks , as in Krause , the plaintiff mother was not present in the room where her daughters were impacted by the

gas explosion, but s he “personally and contemporaneously perceived the injury

- producing event and its traumatic consequences.” ( Wilks

, at p. 1273.) We highlighted this distinction in Ra, supra

, 154 Cal.App. 4th at pages 152 to 153 in rejecting the wife ’s NIED
claim because she lacked a “contemporaneous awareness of her husband’s injuries at the time of the injury

- producing accident” (the falling sign) , even though she heard the bang from where her husband was shopping in the store and believed it was likely h e had been injured

. (See Fortman

, supra , 212 Cal.App. 4th at

p. 836 [ “ From these pertinent bystander cases, it is clear that to satisfy the second Thing requirement the plaintiff must20

experience a contemporaneous sens ory awareness of the causal
connection between the defendant ’ s infliction of harm and the injuries suffered by the close relative.” ].) Our interpretation of the second requirement in Thing to include virtual presence where there is a contemporaneous

percep tion of the injury

- producing event is consistent with allowing recovery for the parents here who observed the abuse of their child as it happened through a livestream feed from their nanny cam but denying recovery if the parents had walked into
their home moments after the abuse and observed their injured

son. 10 As discussed, the Thing court emphasized that in most

cases “ [t] he impact of personally observing the injury

- producing

event

. . . distinguishes the plaintiff ’s resultant emo tional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury. ” ( Thing, supra

, 48 Cal.3d at

p. 666 .)
Maxim argue s that “remote surveillanc e is nothing new, nor is watching events ‘happening live with video and audio,’”
and contends that “[i]ncreased convenience does not mean we are any more able to be present in places where our bodies are not
than we were in 1989.” Maxim and Manalastas con tend that technology allowed live broadcasts decades ago, pointing to the live broadcast of the fatal shooting of Lee Harvey Oswald in 1963

, the 1986 televised explosion of the space shuttle Challeng er, and
the use of clo sed

- circuit television in courtrooms prior to Thing

.

10 Likewise, had the Kos observed the abuse of Landon by viewing a recording of the abuse only aft er it happened, they could not satisfy the requirement of contemporaneous perception of the injury

- producing event.21

But t he Supreme Court in 1989 could not have reasonably anticipated the technological advances that now allow parents (and other family members) to have a contemporaneous sensory
awareness of an event causi ng an injury to their child while not in physical proximity to the child. Certainly live television and

remote video surveillance existed in 1989, but numerous technological , regulatory

, and commercial developments in image capture ( such as a n I nternet

- en abled nanny cam), transmission ( including the streaming of audiovisual data over the I nternet and mobile data networks), and reception ( such as on pocket

s ized smartphones with high resolution screens) were necessary to create a world where parents could c ontemporaneously observe
their at

- home child whi le attending a basketball game

. Indeed, the ubiquity of home surveillance systems and videoconferencing applications since the advent of I nternet

- enabled smartphone s has manifestly changed the manner in which families spend time together and monitor their children. (See, e.g., Riley v. Californ ia (2014) 573 U.S. 373, 385 [ “ These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude
th ey were an important feature of human anatomy. A smart phone of the sort taken from [ the defendant] was unheard of ten years ago; a significant majority of American adults now own such phones

. [Citation.] [Such] phones are based on technology nearly inc onceivable just a few decades ago

. . . . ”].) 11

11 Manalastas argues that extending the second Thing requirement to allow virtual presence without physical presence would enable a plaintiff speaking on the telephone with the22 In various areas of the law affecting traditional conceptions of physical presence, the courts have been called upon to interpret longstanding precedent in light of new technologies. For example, in Kyllo v. U.S. (2001) 533 U.S. 27, 40
, the United States Supreme Court held that the use of a thermal

- imaging

camera “ to explore details of the home that would previously have been unknowable without physical intrusion ” constituted a
search under the Fourth Amendme nt

. ( See U.S. v. Jones (2012)
565 U.S. 400, 404 [“ the G overnment’s installation of a [global positioning system] device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a
‘search’” (fn. omitted) ] ; J.M. v. G .H. (2014) 228 Cal.App. 4th 925

, 939 [upholding family court order authorizing a mother to move

victim during an injury

- producing event to recover for NIED, even though the telephone was invented more than 100 years before Thing

. But the question of auditory presence was not at issue in Thing

, nor is it here

. And c ertainly there may be circumstances where auditory presence is sufficient. As the Supreme Court a cknowledge d in Bird, supra

, 28 Cal.4th at page 916
, the second requirement in Thing of contemporaneous awareness “has not been interpreted as requiring visual perception of an impact on the victim.” M analastas alternatively posits that interpreting Thing ’s requirements of presence at the

scene to include virtual presence would allow par ents to recover for NIED if they witness their child being injured during a sporting event broadcast live on television, a scenario that would have been possible when Thing was decided. That this hypothetical scenario was not addressed in Thing does not m ean the Supreme Court would have drawn a line on NIED recovery based on whether the parents witnessed the injury on television rather than from the bleachers. Th is hypothetical scenario is likewise not before us.23

abroad with her son, finding son’s reduced time with his father and stepbrother would be “ mitigated by

. . . the ability to
communicate electronically” ] ; In re Marriage of Lasich (2002)
99 Cal.App. 4th 702, 711 , disapproved on another ground by In re Marriage of La M

usga (2004) 32 Cal.4th 1072, 1097 [ approv ing
mother’s retu r n to her native count r y with children, noting that in addition to summer and holiday v isits for father, mother would “furnish both father and the minors with computer equipment,
‘net

- meeting’ software, Internet service, and training for father
and the minors to video

- conference at least twice a week”] .) 12
Where plaintiffs allege they were v irtually present at the
scene of an injury

- producing event sufficient for them to have a

12 Maxim and Manalastas rely on the Indiana Supreme Court’s decision in Clifton v. McCammack (Ind. 2015) 43 N.E.3d 213, 215, in which the c ourt held the plaintiff father could not recover for NIED where he watched a television news story about a fatal car crash near his home and feared his son was involved. But in Clifton , as in Bird, supra, 28 Cal. 4th at pages 921 to 922 and Ra, supra , 154 Cal. App.4th at pages 144 to 145, the father did not learn that his son had been injured until after he arrived on the scene 40 minutes after the accident. ( Clifton , at p. 220.) We are not aware of any case in California or elsewhere addressing an NIED claim brought by a plaintiff who was contemporaneously aware of an injury

- causing event through only a virtual presence

. As the editors of the 2012 Restatemen t Third of Torts observed, “Beyond the question of what aspects of an accident must be perceived, [the Restat e ment] leaves for future development whether the events must be perceived while the plaintiff is physically present or whether contemporaneous
tran smission by some medium is sufficiently equivalent to physical presence. Continuing developments in communication technology will no doubt affect the determination.” (Rest .3 d Torts (2012) § 48.)24

contemporaneous sensory awareness of the event causing injury
to their loved one , they satisfy the second Thing requirement to

state a c ause of action for NIED. Just as the Supreme Court has
ruled a “ plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative ” ( Bird, supra

, 28 Cal. 4th at p. 916)

, so too can the Kos pursue an NIED claim where, as alleged, they contemporaneously saw and heard Landon’s abuse, but with their senses technologically extended beyond the walls of their home

. Here, as alleged, the Kos were virtually present through modern technology t hat streamed the audio and video on which they watched Manalastas assaulting Landon in real time , and
thus “personally and contemporaneously perceive [ d ] the injury

producing event and its traumatic consequences

. ” ( Thing, supra

, 48 Cal.3d at p. 666.) Based o n these allegations , the Kos have
stated facts sufficient to constitute a cause of action for NIED

. ( Thing, supra

, 48 Cal.3d at pp. 666, 668

. )

DISPOSITION

The judgment is reversed. T he matter is remanded with directions to the trial court to vacate its order sustaining without
leave to amend Maxim’s demurrer to the fourth cause of action
and Manalastas’s demurrer to the third and fourth causes of
action and to enter a new order overruling the demurrers to the fourth cause of action and sustaining Manalastas’s demurrer to the third cause of action without leave to amend

. The Kos are to recover their costs on appeal.25 FEUER, J.
We concur:

PERL USS

, P. J.

RICHARDSON , J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.