I dissent from the majority’s holding that an intimate homosexual relationship cannot be a significant relationship as a matter of law for stating a cause of action for negligent infliction of emotional distress; however for the reasons stated below I still must concur in the judgment.
In order for a plaintiff to recover for negligent infliction of emotional distress, the court must determine that the accident and injuries were reasonably foreseeable not to the particular defendant, but to the ordinary man. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 922 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518]; Dillon v. Legg, supra, 68 Cal.2d 728, 741.) In determining whether a defendant should reasonably *1280foresee the injury to plaintiff, the courts shall 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 the absence of any relationship or the presence of only a distant relationship.” (Dillon, supra, at pp. 740-741.)
The majority only relies on the third criteria for determining that appellant failed to state a cause of action. The majority looks at different cases for the type of significant relationship which is required to state a cause of action for negligent infliction of emotional distress and states: “The inclusion of an intimate homosexual relationship within the ‘close relationship’ standard would render ambivalent and weaken the necessary limits on a tortfeasor’s liability mandated by Dillon. We view the establishment of a clear and definite standard limiting liability to be of great importance.” Dillon did not mandate the limits on a tortfeasor’s liability under the three factors stated above. “It is important to remember that the factors set forth in Dillon were merely guidelines to be used in assessing whether the plaintiff was a foreseeable victim of the defendant’s negligence. As we stated in Dillon: ‘We are not now called upon to decide whether, in the absence or reduced weight of some of the above factors, we would conclude that the accident and injury were not reasonably foreseeable and that therefore defendant owed no duty of care to plaintiff. In future cases the courts will draw lines of demarcation upon facts more subtle than the compelling ones alleged in the complaint before us.’ ” (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170 [216 Cal.Rptr. 661, 703 P.2d 1].)
Contrary to the majority’s statement that “the establishment of a clear and definite standard limiting liability” is of great importance, the California Supreme Court in Ochoa approves a more flexible approach to the Dillon guidelines. Ochoa examined Dillon’s contemporaneous observation requirement and permitted recovery to a mother who had seen her child’s health deteriorate through neglect while the child was in a juvenile hall infirmary which resulted in his death when she was not present. “The fear that a less than strict application of the Dillon factors will result in ‘infinite liability’ should not prevent courts from allowing plaintiffs to go forward when their shock and trauma stems from their sensory perception of defendant’s conduct and their loved one’s injury, ... In Dillon defendant argued that an otherwise meritorious claim should be barred out of a fear that there would be an increase in suits as well as fraudulent claims. We repeat here our response to such a contention: ‘ “[We] should be sorry to *1281adopt a rule which would bar all such claims on grounds of policy alone, and in order to prevent the possible success of unrighteous or groundless action. Such a course involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which [we] do not share, in the capacity of legal tribunals to get at the truth in this class of claim.” ’ ” (Ochoa v. Superior Court, supra, 39 Cal.3d 159, 171.) I therefore disagree with the majority that liability should be denied to all homosexual relationships on the grounds of policy alone.
The majority states: “To include the ‘emotionally significant,’ ‘stable,’ and ‘exclusive’ relationship pled by appellant as a ‘close relationship’ within the meaning of Dillon v. Legg would invite inconsistent results because recovery would be dependent upon the personal, completely subjective viewpoints of the trier of fact.” In MacGregor v. Unemployment Ins. Appeals Bd. (1984) 37 Cal.3d 205 [207 Cal.Rptr. 823, 689 P.2d 453], wherein the court held that when a worker leaves her employment to accompany her “nonmarital partner” to another state in order to maintain the familial relationship they have established with their child, she voluntarily leaves work with good cause within the meaning of the statute governing eligibility for unemployment insurance benefits. In MacGregor the court recognized that a holding that would preclude benefits in the absence of a legal marriage relationship would “avoid the difficulties and dangers which would accompany a requirement that administrative agencies and courts make individualized determination of the ‘true nature’ of intimate personal relationships.” (Id., at p. 213.) The court in MacGregor in holding that the absence of legally recognized marriage did not preclude an individual from receiving unemployment compensation benefits stated: “This court considered similar arguments in Norman v. Unemployment Ins. Appeals Bd. [1983] 34 Cal.3d 1 [192 Cal.Rptr. 134, 663 P.2d 904], There, although we declined to find good cause based solely on a nonmarital relationship in which marriage was not imminent, we explicitly declined to hold that a legal marriage is a prerequisite for establishing good cause where other indices of compelling familial obligations exist. [Citation.] Today we reaffirm the principle that the lack of a legally recognized marriage does not prevent a claimant from demonstrating that compelling familial obligations provided good cause for leaving employment.” (Id., at p. 213.)
Often the closeness of a relationship is analyzed in order to determine whether a plaintiff may recover for negligent infliction of emotional distress when plaintiff witnesses a particular person injured. In Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573 [127 Cal.Rptr. 720] (disapproved on other grounds in Baxter v. Superior Court (1977) 19 Cal.3d 461, 466, fn. 4 [138 Cal.Rptr. 315, 563 P.2d 871]) the relationship of foster mother and foster child was held to be sufficient to permit' recovery. In *1282Kriventsov v. San Rafael Taxicabs, Inc. (1986) 186 Cal.App.3d 1445 [229 Cal.Rptr. 768], the court held an uncle had stated a cause for negligent infliction of emotional distress when he witnessed his nephew killed, after considering the closeness of the relationship between uncle and nephew.
For our purposes an important case is Ledger v. Tippitt (1985) 164 Cal.App.3d 625 [210 Cal.Rptr. 814], wherein the court held that an unmarried mother living with the father of her child stated a cause of action for negligent infliction of emotional distress as a result of her observation of an assault on the father which caused his death.1 In Ledger the court felt that Justice Poché in his dissent in Drew v. Drake (1980) 110 Cal.App.3d 555, 558 [168 Cal.Rptr. 65], correctly set forth the analytical process required under Dillon. (Ledger, supra, at pp. 647-648; Kriventsov v. San Rafael Taxicabs, Inc., supra, at pp. 1448-1449.) Since I also feel that Justice Poché’s dissent sets out the correct standard for evaluating the third guideline set out in Dillon, I quote the short dissent in full. “On the question of what constitutes a close relationship, the court today draws a bright line distinction between those persons formally married and those not. In particular, a person living with another for three years without benefit of clergy is precluded as a matter of law from recovering for the emotional distress suffered from witnessing the killing of her ‘de facto’ spouse, [¶] Foreseeability of the risk is the issue. The formula for resolution given by the California Supreme Court in Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 20 A.L.R.3d 1316] contains only three elements, two of which the *1283plaintiff undeniably satisfies because her emotional shock resulted from actually observing the fatal accident. Factor three is the only concern: whether the plaintiff and the victim were ‘closely related, as contrasted with the absence of any relationship or the presence of only a distant relationship.’ The court affirms the judgment of dismissal following the sustaining of a general demurrer because it finds no ' family relationship’ (italics added) between plaintiff and decedent. In effect the third guideline has been rewritten to require a formal marriage relationship. We are told that unchurched male/female relationships cannot be close and that the tortfeasor could not foresee that his victim would have a close relationship with a person to whom she was not formally married, [¶] Giving full credit to the ratified air at the appellate level the conclusion reached here today is nevertheless astonishing: my majority colleagues have determined the incidence of cohabitation without benefit of clergy in contemporary California society to be so rare that it can be characterized as ‘unexpected and remote.’ [¶] I do not believe that this no marriage-no recovery rule is what the California Supreme Court meant when it ordered the courts of this state to carefully analyze on a case-by-case basis what the ordinary person should have foreseen. (Dillon v. Legg, supra.) [¶] This insistence on adherence to an older morality as the key to the courtroom was discarded shortly after the close of the Spanish Inquisition and is clearly not the law of this state. (Dillon v. Legg, supra; Marvin v. Marvin, supra, 18 Cal.3d 660; Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573.) [¶] I would reverse the •judgment to allow a jury to determine whether and to what extent emotional trauma occurred.” (Drew v. Drake, supra, at pp. 558-559, fn. omitted.)
Thus, the majority’s statement “to include the ‘emotionally significant,’ ‘stable,’ and ‘exclusive’ relationship pled by appellant as a ‘close relationship’ invites inconsistent results because recovery would be dependent upon the personal, completely subjective viewpoints of the trier of fact” may be true but the courts have been determining for some time whether a particular relationship constitutes a significant one. The closeness of a relationship for the negligent infliction of mental distress goes to foreseeability and is thus an issue for the court to decide. “ ‘The courts thus mark out the areas of liability, excluding the remote and unexpected.’ ” (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 922.) Since homosexuals cannot marry (Civ. Code, § 4100), under the majority’s decision, they are precluded from ever recovering for negligent infliction of emotional distress. However, recovery for negligent infliction of emotional distress is not limited to couples that are married. (Ledger v. Tippitt, supra, 164 Cal.App.3d 625.) When marriage is not a requirement for recovery, there is no reason to distinguish between heterosexual relationships and homosexual relationships in determining whether the relationship is significant and stable. (Note, Marital Status Qualifications: Protecting Homosexual and Heterosex*1284ual Cohabitors (1986) 14 Hastings Const.L.Q. 111, 137-139; see Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 70 [188 Cal.Rptr. 503, 40 A.L.R.4th 539] [setting forth certain elements indicative of a stable and significant relationship].)
In a contemporary society (and particularly in San Francisco) it is foreseeable a homosexual relationship might exist. Such a relationship may be significant enough to meet the third Dillon requirement. “ ‘[F]amily’ may ‘mean different things under different circumstances. The family, for instance, may be... a particular group of people related by blood or marriage, or not related at all, who are living together in the intimate and mutual interdependence of a single home or household____’ ” (MacGregor v. Unemployment Ins. Appeals Bd., supra, 37 Cal.3d 205, 212.)
While I dissent from the majority’s holding that an intimate homosexual relationship cannot be a significant relationship for stating a cause of action for negligent infliction of emotional distress, I must still concur in the judgment.
As noted in the beginning of this dissent and concurrence the courts must determine what an ordinary man under such circumstance should have reasonably foreseen, thus marking out the areas of liability, excluding the remote and unexpected. (Dillon v. Legg, supra, 68 Cal.2d 728, 741.) An action for negligent infliction of mental distress will not lie for bad manners or trivialities, but tortious conduct resulting in substantial invasions of clearly protected rights. (Molien, supra, at p. 927.) The complaint alleges that appellant was denied entry to a San Francisco Municipal Bus, but his significant other was allowed onto the bus. It is further alleged that the defendant bus driver verbally abused Robert Ervin and struck him. The complaint does not allege that Robert Ervin was physically injured in any manner at all. I simply do not find this conduct by the bus driver, without an allegation that Robert Ervin was injured in some significant manner, would cause an ordinary person to foresee that appellant would suffer any substantial emotional distress. (Accounts Adjustment Bureau v. Copperman (1984) 158 Cal.App.3d 844, 848 [204 Cal.Rptr. 881].) Recovery for this tort was not meant to cover every situation in which an individual acts improperly, but rather toward tortious conduct resulting in substantial invasions of clearly protected rights.
Since appellant does not plead any medical injury to himself or his significant other, there is nothing in the complaint to support the genuineness of the claim. “The Molien court’s evolutional reiteration of the Dillon foreseeability test for establishing emotional distress is not, however, free of any pleading requirements. Although foreseeability must generally be adjudicat*1285ed on a case-by-case basis, Molien contemplates that the circumstances of the case will be sufficiently pleaded to support the genuineness of the claim. ‘“In cases other than where proof of mental distress is of a medically significant nature, [citations] the general standard of proof required to support a claim of mental distress is some guarantee of genuineness in the circumstances of the case. [Citation.]” ’ ” (Id., at p. 847, italics added.) Appellant’s complaint does not contain any allegations that support the genuineness of the claim.
In conclusion, I disagree that a homosexual relationship cannot be of a significant nature to sustain a cause of action for negligent infliction of emotional distress. However, I concur in the judgment because appellant failed to plead his case in such a manner to support the genuineness of the claim.
A petition for a rehearing was denied July 22, 1987, and appellant’s petition for review by the Supreme Court was denied September 17, 1987.
On September 19, 1985, the California Supreme Court granted review in the published case of Garcia v. Superior Court (June 18, 1985, E001780) wherein the Court of Appeal held that “unmarried cohabitants can state a cause of action for negligent infliction of emotional distress if the plaintiff can demonstrate that the relationship is both stable and significant.” On May 1, 1986, the review of the matter was dismissed by the Supreme Court as improvidently granted and the matter was remanded to the Court of Appeal. Rule 29.4(c) of the California Rules of Court provides: “The Supreme Court may dismiss review of a cause as improvidently granted and remand the cause to the Court of Appeal. The order of dismissal and remand shall be sent by the clerk to all parties and to the Court of Appeal. On filing of the order in the Court of Appeal, the decision of the Court of Appeal shall become final and the clerk of the Court of Appeal shall issue a remittitur forthwith.” On May 16, 1989, the Court of Appeal issued its remittitur in Garcia. The Advisory Committee Comment to rule 29.4 provides: “If the Supreme Court dismisses review as improvidently granted under subdivision (c), the cause is restored to the posture it had before the Supreme Court granted review: the decision of the Court of Appeal is final” (Italics added.) However, since the California Supreme Court did not order the opinion to be published when it dismissed review as improvidently granted and remanded the case to the Court of Appeal, this appeal although final among the parties may not be cited since it is no longer regarded as a published opinion. Once review is granted the opinion of the Court of Appeal, may not be published. (Rule 976(d), Cal. Rules of Court.) Under rule 29.4(c) the Court of Appeal only has the power to issue the remittitur, but may not decide whether the opinion is to be published. Still pending before the California Supreme Court is a case which denied recovery to cohabitants for negligent infliction of mental distress. (Elden v. Sheldon (1985) 164 Cal.App.3d 745 [210 Cal.Rptr. 755], review granted Apr. 25, 1985 (L.A. 32063).)