Rodriguez v. KIRCHHOEFEL

26 Cal.Rptr.3d 891 (2005) 128 Cal.App.4th 427 Martha RODRIGUEZ, Plaintiff and Appellant,

v.

Troy KIRCHHOEFEL, Defendant and Respondent.

No. B175505. Court of Appeal, Second District, Division Five.

April 13, 2005. Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich, Woodland Hills, and David F. Tibor for Plaintiff and Appellant.

Law Office of Beverly I. Mills, Beverly I. Mills, Canoga Park, for Defendant and Respondent.

MOSK, J.

INTRODUCTION

Plaintiff and appellant Martha Rodriguez (plaintiff) sued defendant and respondent Troy Kirchhoefel (defendant) for negligent infliction of emotional distress (NIED), alleging that plaintiff suffered emotional distress when she observed a car, negligently driven by defendant, strike and kill Catalina Macias (Macias). Defendant successfully moved for summary judgment on the ground that plaintiff was not related to Macias, and therefore, under Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (Thing) and Elden v. Sheldon (1988) 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582 (Elden), plaintiff cannot assert an NIED claim against defendant. Plaintiff appeals from the summary judgment, contending the trial court erred by granting summary judgment because there was evidence that [892] plaintiff and Macias, although not related by blood, had a relationship similar to that of sisters. Because the Supreme Court in Thing and Elden made clear that the NIED cause of action is not available to plaintiffs who observe injuries negligently inflicted on de facto relatives, as opposed to blood or marital relatives, we affirm the judgment.

BACKGROUND

On May 18, 2001, 15-year-old Macias was crossing a street in the City of Santa Clarita when she was struck by a car driven by defendant. Macias, who was in the pedestrian crosswalk at the time she was hit, was killed by the impact. Plaintiff was a few feet away from Macias when the car struck Macias. She saw Macias walk into the crosswalk and defendant's car enter the intersection against the signal and strike Macias. Plaintiff, who was 14 years old at the time of the accident, alleged that she suffered severe emotional distress as a result of seeing defendant's car hit Macias, with whom plaintiff shared a close relationship—similar to that of sisters.