Filed 1/14/21 (unmodified 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, 2020 is 

modified as follows:

On page 23, in footnote 12, delete the last sentence 

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 for 
2

future development whether the events must be 

perceived while the plaintiff is physically present or 

whether 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 the 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 opinion)

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)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Robert B. Broadbelt III, Judge. Reversed and 

remanded with directions.

Law Offices of Steven P. Chang, Steven P. Chang, Gene H. 

Shioda and Heidi M. Cheng for Plaintiffs and Appellants.

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 Ko1 appeal from a judgment of 

dismissal entered after the trial court sustained without leave to 

amend the demurrers filed by defendants Maxim Healthcare 

Services, Inc. (Maxim), and Thelma Manalastas to the Kos’ third 

amended complaint. The Kos brought claims for negligence and 

negligent infliction of emotional distress (NIED) alleging 

Manalastas, a vocational nurse employed by Maxim who worked 

as an in-home caregiver for the Kos’ disabled son Landon, abused 

Landon while the Kos were out of the house. The Kos allege they 

witnessed Manalastas abuse Landon in real 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 an 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 connection 

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. In the three decades since the Supreme Court decided

Thing, technology for virtual presence has developed

dramatically, such that it is now common for families to 

experience events as they unfold through the livestreaming of 

video and audio. Recognition of an NIED claim where a person

uses 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 affirm 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 Thing they can recover for emotional distress damages.
4

FACTUAL AND PROCEDURAL BACKGROUND

A. The Incident

In April 2017 Landon was 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 worked, had two other children, and they hired 

Maxim to provide in-home caretaking services for Landon for 

when they were at work or otherwise unavailable. Manalastas

was a California licensed vocational nurse employed by Maxim 

who was one of the caregivers Maxim provided to the Kos. 

Manalastas was a caregiver for Landon for more than a year 

prior to the incident. The Kos alleged 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.’” Thereafter, 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 Kos’ residence. The Kos drove 

home and showed the police officers video of Manalastas abusing 

Landon, leading to Manalastas’s arrest. Dyana reported the 

abuse to Maxim, which reassigned Manalastas but did not 

terminate her.

The Kos allege on information and belief that Manalastas’s 

abuse caused Landon to have one of his eyes surgically removed 

and other physical injuries. Landon passed away on April 24, 

2018, during the pendency of this action.

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. After Landon passed 

away, the court granted the Kos leave to file a third amended 

complaint realleging 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 their fourth cause of action for NIED. On 

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 in the survivor causes of action pursuant 

to Code of Civil Procedure 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 interest on the decedent’s cause of action, the 

damages recoverable are limited to the loss or damage that the 
6

to the causes 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 demurrers and granted their motions to strike. 

The court found with respect to the Kos’ fourth cause of action for 

NIED, citing to Thing, supra, 48 Cal.3d at page 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 courts 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 livestreaming video and audio on smart phones,” but the “cases 

upholding NIED liability have only involved plaintiffs with some 

physical proximity to the injury-producing event at the time 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 Appeal.” 

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 negligence, 

decedent sustained or incurred before death . . . and do not 

include damages for pain, suffering, or disfigurement.”
7

finding 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 

sustaining without leave to amend defendants’ demurrers 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, 2018 the Kos filed a notice of 

appeal from a “[j]udgment of dismissal after an order sustaining 

a demurrer” and an order “[d]ismissing Plaintiffs’ individual 

causes of action for negligence and/or negligent infliction of 

emotional distress.” However the trial court had not yet entered 

a judgment or order of dismissal.

On November 10, 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 of 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 their appeal. On November 11 the Kos 

requested 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 sections 452, 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. 

County 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] on 
9

appeal.’” (Sierra Palms Homeowners Assn. v. Metro Gold Line 

Foothill 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 recognized 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 

emotional 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 emotional shock and 

physical injury resulting from watching the defendant 

negligently run over her young daughter who was crossing the 

street, where the mother was “‘in close proximity to the . . .

collision and personally witnessed said collision,’” although she 

was not within the zone of danger and did not fear for her own 
10

safety.7 (Dillon, supra, 68 Cal.2d at pp. 731-733.) The Dillon

court rejected the premise of earlier opinions declining to 

recognize bystander NIED claims 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 court 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.” (Id. at p. 739.)

The Dillon court 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. 740.) 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 were 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 factors, the Supreme Court explained, “[T]he 

degree of foreseeability of the third 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 than 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 Courts of Appeal recognized viable NIED claims in 

circumstances the Supreme Court in Thing later characterized as 

an “expansive progression” that “created more uncertainty.” 

(Thing, supra, 48 Cal.3d at p. 656.) In Krouse v. Graham (1977) 

19 Cal.3d 59, 76 (Krouse), the Supreme Court held “the Dillon

8 The Dillon court limited its ruling to 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.” (Dillon, 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 for 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 turn 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 court upheld a plaintiff

husband’s NIED claim where the defendant’s car crashed into 

and killed the 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 Dillon’s second factor of 

sensory and contemporaneous observance in 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 involve the 

plaintiff’s observation of a “sudden occurrence.” The Supreme 

Court held the trial court erred in sustaining a demurrer to an

NIED claim by a mother who watched her 13-year-old son suffer 

excruciating pain from negligent treatment of his pneumonia 

over several days in a juvenile detention facility. (Id. at pp. 163-

164.) The court 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.)

The 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 court
13

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 

mouth-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 the 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 pages 656 to 657 expressed concern the Dillon 

guidelines had produced unpredictable outcomes and expanded 

liability to allow recovery for emotional distress in situations 

where plaintiffs were not present at the scene at the time of the 

accident, instead learning of their loved one’s injury when they 

later arrived at the scene. The Thing court 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.)

The Thing court 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 victim; (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 disinterested 

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 in 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 the emotion felt when one learns of the injury or death of a 

loved one from another, or observes pain and suffering but not 
15

the traumatic cause of the injury. Greater certainty and a more 

reasonable limit on the exposure to liability for negligent conduct 

is 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 the 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.)

The Supreme Court revisited the second Thing

requirement of contemporaneous presence in Bird v. Saenz (2002) 

28 Cal.4th 910 (Bird). There, the Supreme Court held the adult 

daughters of a woman who suffered the negligent 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 an 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 event perceived 

by other senses so long as the event is contemporaneously 

understood as causing injury to a close relative. [Citation.] [¶] 

But this slight degree of flexibility in the second Thing
16

requirement does not aid plaintiffs here because they had no 

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 [substantial 

evidence supported NIED judgment for sister and daughter of a 

surgery patient who observed the patient’s inability to breathe

following improper intubation].)

The Kos in their opening brief survey the Court of Appeal 

decisions over the last three decades that have construed the 

second Thing requirement. The most analogous case is Wilks v. 

Hom (1992) 2 Cal.App.4th 1264, 1270-1272 (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 explosion killed one daughter and 

severely burned another. (Wilks, at p. 1267.) The mother was 

not in the same room as the daughters when the explosion 

impacted them, but she was aware they were in their bedrooms

when she experienced the force of the explosion and saw a bright 

flash from one of the girl’s rooms, 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 court concluded this was “sufficient to establish the 

requirement that she personally and contemporaneously 

perceived the injury-producing event and its traumatic 

consequences.” (Id. at p. 1273.)

By contrast, in 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. We 
17

concluded the plaintiff’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 establish contemporaneous awareness of her husband’s 

injuries at the time of the injury-producing accident within the 

meaning of” Thing and Bird. (Ra, at pp. 152-153; accord, Fife v. 

Astenius (1991) 232 Cal.App.3d 1090 [evidence plaintiffs heard 

the sounds and 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. Förvaltningsbolaget 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 witnessed 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. Surveying Thing, 

Ochoa, and Dillon, the court reasoned, “From these pertinent 

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 relative.” (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 

Claim 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 injuryproducing event to include “virtual presence” in light of the 

technological 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 concept 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. 669) 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 MerriamWebster definition relied on by Maxim defines the adjective 

“present” to mean “being in view or at hand.” (See MerriamWebster’s Online Dict. (2020) <https://www.merriamwebster.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.4th 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 consequences.” (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 wife 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.App.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 she “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 he 

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 must 
20

experience a contemporaneous sensory 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 

perception 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 emotional 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 argues that “remote surveillance 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 contend 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 Challenger, and 

the use of closed-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 after it happened, they 

could not satisfy the requirement of contemporaneous perception 

of the injury-producing event.
21

But the 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 causing 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 an Internet-enabled nanny cam), transmission 

(including the streaming of audiovisual data over the Internet 

and mobile data networks), and reception (such as on pocketsized smartphones with high resolution screens) were necessary 

to create a world where parents could contemporaneously observe

their at-home child while attending a basketball game. Indeed, 

the ubiquity of home surveillance systems and videoconferencing 

applications since the advent of Internet-enabled smartphones

has manifestly changed the manner in which families spend time 

together and monitor their children. (See, e.g., Riley v. California

(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 

they 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 inconceivable 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 the 
22

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 Amendment. (See U.S. v. Jones (2012) 

565 U.S. 400, 404 [“the Government’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 certainly there may be 

circumstances where auditory presence is sufficient. As the 

Supreme Court acknowledged 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.” Manalastas alternatively 

posits that interpreting Thing’s requirements of presence at the 

scene to include virtual presence would allow parents 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 mean 

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. This 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 LaMusga (2004) 32 Cal.4th 1072, 1097 [approving

mother’s return to her native country with children, noting that 

in addition to summer and holiday visits 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 virtually 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 court 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 Restatement 

Third of Torts observed, “Beyond the question of what aspects of 

an accident must be perceived, [the Restatement] leaves for 

future development whether the events must be perceived while 

the plaintiff is physically present or whether 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.)
24

contemporaneous sensory awareness of the event causing injury 

to their loved one, they satisfy the second Thing requirement to 

state a cause 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 that streamed the audio and video on which 

they watched Manalastas assaulting Landon in real time, and 

thus “personally and contemporaneously perceive[d] the injuryproducing event and its traumatic consequences.” (Thing, supra, 

48 Cal.3d at p. 666.) Based on 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. The 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:

PERLUSS, 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.