Opinion
KINGSLEY, Acting P. J. Plaintiff appeals from a summaiy judgment on his first cause of action and from a judgment dismissing his second [357]and fourth causes of action after sustaining a demurrer thereto without leave to amend. We reverse the judgment as to the first cause of action and affirm it as to the second and fourth causes of action.
I
The facts as to the first cause of action are not in dispute. Plaintiffs wife was a patient of defendants for the purpose of delivery of their child. The wife died during the delivery procedure. After her death, plaintiff, who was in the delivery room, was able to feel life in the as yet unborn child; he asked the attending physician and nurses to deliver the child but they refused; the child died, and plaintiff was able to ascertain the death by feeling the wife’s body.
The first cause of action seeks to recover for the emotional distress resulting from the death of the child. The rulings here complained of were to the effect that, on the facts above stated, there was no cause of action for emotional distress.1 We disagree.
The elements of a cause of action for emotional distress were thus stated in the seminal case of Dillon v. Legg (1968) 68 Cal.2d 728 at pages 740-741 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] as follows: “We note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case. In determining, in such a case, 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 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.”
[358]The trial court, and respondents here, relied on the decision of the Supreme Court in Justus v. Atchison (1977) 19 Cal.3d 564 [139 Cal.Rptr. 97, 565 P.2d 122], That reliance is misplaced as to the first cause of action. In Justus, all the plaintiff claimed was that he was in the delivery room when the defendant improperly conducted a delivery. The Supreme Court denied relief solely on the ground that, on the facts alleged, plaintiff did not, and could not, have seen any allegedly negligent acts of delivery and that his distress arose only after the death when he was told of it by the defendant doctor. Here, however, plaintiff alleges that he learned of the death by his own observation of the cessation of life in the fetus and that his shock and distress were occasioned by that sensory and contemporaneous realization of the death. Justus is not here applicable. Since the presence of the other two elements required by Dillon—presence at the scene and relationship—are not disputed, it follows that the first cause of action did state, and the declarations filed on the motion for summary judgment show, a triable cause of action.
Plaintiff’s second cause of action is for the wrongful death of the child. As to that cause of action, Justus is applicable and the demurrer to it was properly sustained.
Ill
Plaintiff’s fourth cause of action is for breach of contract, based on the failure of defendants to perform the delivery of the fetus. We agree that the demurrer to that cause of action was properly sustained. A party may not circumvent a doctrine barring a tort action by pleading it as one for breach of contract. Although not directly in point, the rational of Tell v. Taylor (1961) 191 Cal.App.2d 266 [12 Cal.Rptr. 648] and Lai Wum Chin Mock v. Belfast Beverages (1961) 193 Cal.App.2d 770 [14 Cal.Rptr. 602], is applicable here.
IV
The trial court struck from the first cause of action those portions which sought punitive damages against the defendants.
(a) Insofar as defendant Regents are concerned, that action was compelled by section 818 of the Government Code.
[359](b) While there is no restriction against claiming punitive damages as against the defendant doctor, the allegations in plaintiff’s complaint are purely conclusionary and do not meet the requirements set forth in Gombos v. Ashe (1958) 158 Cal.App.2d 517 [322 P.2d 933]. However, since we permit plaintiff to go forward with his first cause of action, he should be permitted, if he so desires, to amend those allegations by pleading such factual matter as he can properly plead to amplify the present inadequate pleading.
V
Plaintiff sought leave to amend his pleading to allege damages in addition to those originally pleaded resulting from his alleged distress. Denial of that request was proper. Under subdivision (b) of section 425.10 of the Code of Civil Procedure, no dollar amount of damages may be stated in an action for personal injuries.
VI
Plaintiff’s third cause of action was for the wrongful death of his wife. The record shows that that cause of action was dismissed by plaintiff. His attempted appeal from that dismissal is unauthorized.
The judgment is reversed insofar as it relates to the first cause of action, except insofar as it involved striking the claim for punitive damages; it is' otherwise affirmed. Plaintiff shall recover his costs on appeal.
Alarcon, J., concurred.
In addition to the partial summary judgment on the first cause of action, the trial court struck certain portions of the complaint contained therein. Except as to its ruling on the issue of punitive damages, discussed hereinafter under rubric IV, those rulings appear to have resulted from the trial court’s view, which we reverse, that plaintiff had no cause of action for emotional distress. On remand, the trial court should reconsider such rulings in light of this opinion.