I.
I concur with the conclusion of the majority opinion that Ken Moon (Moon) has failed to allege sufficient facts to state a cause of action under the “direct victim” variant of a claim for negligent infliction of emotional distress (NIED), as he has shown no violation of a duty owed directly to him. I respectfully dissent, however, from the portion of the opinion that also concludes he has failed to allege a cause of action for NIED under a theory of bystander liability.1
The issue is whether a son-in-law can state a cause of action for NIED for witnessing the alleged negligent treatment of his mother-in-law at respondent’s nursing facility. Unquestionably, this issue of first impression is controlled by our Supreme Court’s majority opinion in Thing v. La Chusa (1989) 48 Cal.3d 644 [257 Cal.Rptr. 865, 771 P.2d 814] (Thing), in which the court revisited its landmark decision in Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] concerning bystander recovery for damages for emotional distress. In that case, the high court departed from a long-standing foreseeability analysis, and in its place, adopted a more procrustean “bright-line” test. This test limits the class of claimants who can sue for bystander NIED to those “closely related to the injury victim.” (Thing, supra, 48 Cal.3d at pp. 667-668.)2 However, further explanation of what constitutes a close relationship is interred in the opinion’s footnote 10: “In most cases no justification exists for permitting *1017recovery for NIED by persons who are only distantly related to the injury victim. Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.” (Id. at p. 668, fn. 10, italics added.)
For three separate reasons, I disagree with the majority in this case that appellant Moon, the apparently adoring son-in-law of the victim, Ms. Frances McMahon, has failed to plead a cause of action for NIED against respondent, the nursing home operator in whose care Ms. McMahon was entrusted. First, the Supreme Court did not exclude as claimants “closely related” family members who are related through marriage, such as in-laws and step relations. (Thing, supra, 48 Cal.3d at pp. 667-668.) A fair reading of the Thing opinion, coupled with the allegations of Moon’s second amended complaint (SAC), indicates Moon potentially falls within this subclass of allowable claimants.
Second, Moon detailed in his complaint a son-in-law relationship with Ms. McMahon of “exceptional circumstances.” (Thing, supra, 48 Cal.3d at p. 668, fn. 10.) Therefore, even if he did not allege sufficient facts to show he was “closely related” to Ms. McMahon, a relationship of this caliber, if proved, establishes “exceptional circumstances,” bringing Moon within an alternate subclass of claimants described by our Supreme Court. (Ibid.)
Last, Ms. McMahon resided in the Moon home, albeit for an undefined period of time, just prior to her transfer to respondent’s nursing home. Thus, Moon potentially qualifies as a relative with whom the victim resided, and as such has standing to assert his claim for NIED. The majority disagrees because Moon’s complaint failed to allege that the period of residence was “for a substantial period of time.” (Maj. opn., ante, at p. 1013.) Even so, under the mandate of well-recognized precepts of appellate review, Moon should be allowed leave to amend his complaint to plead facts meeting this novel requirement.
For each and all of these reasons, I would reverse the dismissal, and allow Moon the opportunity to make his case for NIED in the trial court.
II.
A.
The original iteration of appellant’s complaint was filed on January 7, 2000. This complaint was comprised of nine causes of action, eight of which related only to claims by the estate of Ms. McMahon. The ninth cause of *1018action alleged NIED by Ken and Eileen Moon, who are described, respectively, as Ms. McMahon’s son-in-law and daughter. Respondent demurred to multiple causes of action, including the NIED claim. On April 6, 2000, the trial court sustained the demurrer to that claim, among others, with leave to amend on the grounds that plaintiffs had failed to allege they observed respondent’s alleged negligent conduct. As to Mr. Moon, the court also stated: “Ken Moon has failed to allege any ‘exceptional circumstances’ which would entitle him to pursue this cause of action,” citing Thing.
A first amended complaint for damages (FAC) was subsequently filed. As to Moon’s NIED claim, in addition to alleging he was the son-in-law of Ms. McMahon, he averred the details of that relationship with some specificity in paragraph 2. Paragraph 51 was also amended to describe the observations leading to Moon’s emotional distress, which were contemporaneous with respondent’s negligence. Another demurrer challenged the FAC, and that demurrer to the ninth cause of action for NIED was sustained, again with leave to amend. Once again, the court alluded to the absence of “exceptional circumstances” and noted that under Thing, recovery was otherwise limited to “blood relatives.”
The SAC followed in which NIED was pled once again as the ninth cause of action. This time, Moon was quite explicit in describing his relationship with Ms. McMahon:
“2. Plaintiff Ken Moon, is the son in law of the deceased, Frances McMahon. He was very closely related to the deceased in that he and his wife were the two family members who cared for and provided almost exclusively for her well being for a lengthy period of time up to the date of her death. During the last years of Mrs. McMahon’s life, she lived with the Moon’s [sic] on and off for months at a time. Ken Moon is a relative of Frances McMahon by his marriage with her daughter, Eileen Moon, and he did reside with her in the same household before she died. Ken Moon and Frances McMahon enjoyed a very close relationship as mother and son in law.
“3. The following exceptional circumstances exist with regard to Ken Moon’s relationship with his mother-in-law, Frances McMahon. Since the date of Ken and Eileen Moon’s marriage in October of 1969, Frances McMahon spent at least one month per year with Ken and Eileen Moon. Mrs. McMahon had her own bedroom in the Moon[s’] home in Walnut Creek since 1979. Between 1992 and 1993 Mrs. McMahon lived with the Moon[s] for approximately four to five months. During that time, she visited UCSF Medical Center for treatment every Friday morning. Ken Moon drove *1019his mother-in-law to those visits every week. Their relationship grew much closer over this period of time. Their weekly trips from Walnut Creek to San Francisco became a ritual. They developed a routine for taking extra time after Mrs. McMahon’s treatment and visited sites and had lunch at the Buena Vista Restaurant. They even developed relationships with local vendors and the staff of their favorite lunch spots. They developed a habit of visiting vendors along Beach Street in San Francisco. They often times visited the Cliff House and enjoyed the nickelodeons. Ken Moon and Frances McMahon also enjoyed visiting Fisherman’s Wharf during their weekly trips. Between 1993 and 1998 Mrs. McMahon continued to visit Mr. and Mrs. Moon with increased frequency until she moved permanently to California and lived with the Moons for a period of time before moving to an assisted living facility.
“4. Additional exceptional circumstances include Ken Moon’s dealings with [respondent] and John Muir Medical Center. When Frances McMahon was admitted to [respondent’s] facility, Ken Moon was the one individual with whom [respondent] had dealings. Ken Moon was responsible for signing the admission forms and providing Mrs. McMahon’s medical history to the care providers. Mr. Moon was also listed as the Emergency Contact person on the admission forms. For all intent and purpose, the relationship Mr. Moon enjoyed with his mother in law was indistinguishable from the relationship she had with her other children and in many regards it was much closer.”
The SAC was met by another demurrer, which again was sustained by the trial court on October 11, 2000, this time without leave to amend. The court reasoned: “Mr. Moon has yet to allege the exceptional circumstances required by [Thing].”
B.
Moon argued at every turn that he was owed a duty of care under Thing because he was “closely related” to Ms. McMahon through marriage, if not by blood. (Thing, supra, 48 Cal.3d at pp. 667-668.)
In Thing, the court said: “The narrow issue presented by the parties in this case is whether the Court of Appeal correctly held that a mother who did not witness an accident in which an automobile struck and injured her child may recover damages from the negligent driver for the emotional distress she suffered when she arrived at the accident scene.” (Thing, supra, 48 Cal.3d at pp. 646-647.) The Supreme Court found that because the mother was not present at the scene of the accident in which her son was injured and she did *1020not observe the defendant’s conduct and was not aware her son was being injured, she could not establish a right to recover for NIED. (Id. at p. 669.)
The issue before the Supreme Court, then, was a narrow one: Was it necessary for a plaintiff to have sensed the injury-producing event in order to assert an NIED claim? In addressing this issue, however, the Supreme Court undertook to “further define and circumscribe the circumstances in which the right to such recovery exists.” (Thing, supra, 48 Cal.3d at p. 648.) One of the issues discussed was who could assert NIED bystander claims—the issue that must be examined in this case.3
The discussion in Thing relating to whom a duty of care was owed follows the court’s analysis of the main issue under review—the requisite nexus between the injury and the plaintiff’s awareness of it. In connection with this further question, the court stated: “Similar reasoning justifies limiting recovery to persons closely related by blood or marriage, since, in common experience, it is more likely that they will suffer a greater degree of emotional distress than a disinterested witness to negligently caused pain and suffering or death.” (Thing, supra, 48 Cal.3d at p. 666, italics added.) This passage is then followed by footnote 10 in which the court explained: “Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.” (Id. at p. 668, fn. 10.) Therefore, when footnote 10 is viewed in light of the opinion’s text, one is led to the inescapable conclusion that the majority’s reference in footnote 10 to “parents, siblings, children, and grandparents” potentially includes those related by either blood or marriage to the victim.
Not only is this a reasonable conclusion from a fair reading of Thing as a whole, but also it is consistent with the policy concerns that drove the Supreme Court to limit the recovery of emotional distress to “closely related” persons. (Thing, supra, 48 Cal.3d at pp. 667-668.) That policy is reflected in the court’s commentary on the reason the common law protects certain classes of persons who are likely to experience serious emotional injuries from the contemporaneous perception of an injury-producing event: “Unlike an award of damages for intentionally caused emotional distress which is punitive, the award for NIED simply reflects society’s belief that a negligent actor bears some responsibility for the effect of his conduct on *1021persons other than those who suffer physical injury. In identifying those persons and the circumstances in which the defendant will be held to redress the injury, it is appropriate to restrict recovery to those persons who will suffer an emotional impact beyond the impact that can be anticipated whenever one learns that a relative is injured, or dies, or the emotion felt by a ‘disinterested’ witness. The class of potential plaintiffs should be limited to those who because of their relationship suffer the greatest emotional distress. When the right to recover is limited in this manner, the liability bears a reasonable relationship to the culpability of the negligent defendant.” (Id. at p. 667.)
Despite this, in the present case the majority reads Thing as “limit[ing] NIED claims to members of the immediate family unit, such as parents, spouses, siblings, children, and grandparents of the victim.” (Maj. opn., ante, at p. 1011, italics omitted.) This unduly restrictive reading excludes stepchildren, half brothers and sisters, and virtually all in-laws who will categorically be unable to sue for their serious emotional distress when witnessing the death or injury of a loved one. This restriction also ignores the much broader statement by the Supreme Court in Thing that “limiting recovery to persons closely related by blood or marriage” is justified “since, in common experience, it is more likely that they will suffer a greater degree of emotional distress than a disinterested witness . . . .” (Thing, supra, 48 Cal.3d at p. 666, italics added.)
Hopelessly confusing the issue, the majority declares in the paragraph preceding that quoted above: “Additionally, stepchildren, stepparents, and adopted children who are part of the familial relationship may not be related by blood to the family member making an NIED claim but may still be considered closely related.” (Maj. opn., ante, at p. 1011.) Does the majority, then, mean to extend the class of NIED marriage-related plaintiffs to step relatives but not to in-law relatives? From what principle in Thing is the rationale for this apparent distinction derived?
At bottom, to read the Supreme Court’s holding as barring either closely related step or in-law relatives from legal recourse evinces an indifference to the realities of modem family life as misguided and insensitive as were former cinematic and literary portrayals of mothers-in-law as insufferable, officious intermeddlers in family matters. Much closer to reality now is where close relatives, who are bound to one another through marriage, share their lives with one another intimately, making their relationship indistinguishable from biological relatives. In this country, where the divorce rate is *1022at 50 percent,4 preventing stepparents, stepchildren, or in-law relatives from suing for NIED unjustifiably leaves an immense number of family members legally unprotected from torts that may exact a serious emotional toll on the bonds forged in second or subsequent marriages. Therefore, I would reverse, concluding that the common law, as interpreted by our Supreme Court in Thing, extends a duty of care to plaintiffs, such as Moon, whose close relationship is founded on marriage, not blood.
C.
The sole ground mentioned by the trial court in its order sustaining respondent’s demurrer without leave to amend was Moon’s failure to allege “exceptional circumstances” justifying the extension of an NIED tort duty of care to him. (Thing, supra, 48 Cal.3d at p. 668, fn. 10.) But the terse conclusion of the trial judge came with no explanation of how the pleading was deficient: “Mr. Moon has yet to allege the exceptional circumstances required by [Thing].”
Earlier in this dissent I have set forth verbatim that portion of Moon’s SAC in which he details his relationship with Ms. McMahon. In it, he describes a 30-year loving relationship between the two that equals or exceeds in intensity and affection those relationships many adult children have with their own aging biological parents. I will not repeat it but instead ask rhetorically, if Mr. Moon’s relationship with his mother-in-law as described in his SAC is not “exceptional circumstances,” what is? Certainly, counsel at oral argument were unable to articulate it. The majority here seems equally unwilling to do so. Ironically, while Moon surely earned the love of Ms. McMahon by his devotion to her over many years, the majority, without clarification, concludes he has no remedy for the emotional distress allegedly suffered as a result of respondent’s negligent conduct because his relationship with her was not “exceptional.” I disagree.
In this sense, this case is no different from Quesada v. Oak Hill Improvement Co. (1989) 213 Cal.App.3d 596 [261 Cal.Rptr. 769]. The sister and niece of a decedent whose remains were allegedly mishandled by the defendant mortuary brought that action. (Id. at p. 598.) The trial court sustained demurrers without leave to amend, and the question decided by the Fifth District was whether these relatives were precluded from suing for NIED as a matter of law. (Id. at p. 599.) After concluding the niece was not a “closely related” person under Thing, the court noted, however, that the niece’s entitlement to sue could not be determined by “[t]he simple *1023expedient of calculation of the degree of consanguinity . . . .” (Id. at p. 610.) Quesada held the mortuary owed a duty of reasonable care to all close family members and refused to determine that a niece, as a matter of law, might not fall within the “extraordinary circumstances” category of non-household member in the Thing definition of close family relationship. (Id. at pp. 610-611.)
In light of the unusually high degree of specificity employed by Moon to plead exceptional circumstances, quite frankly I see little more he could add to his current pleading to improve it. The only hint offered by the majority as to how the “exceptional circumstances” prong might be satisfied is to suggest that courts might look at whether “denying the claim would relieve the defendant from facing any liability for an NIED claim because there is no close living relative who can make such a claim.” (Maj. opn., ante, at p. 1013.) By this, the majority seems to proclaim that, hereafter, bystander NIED claims not brought by close blood relatives will be subject to a “one claim per family” rule. This is plainly not what the Supreme Court intended by “exceptional circumstances.”
Because I am convinced that Moon has plead sufficient facts demonstrating “exceptional circumstances” justifying the extension of an NIED tort duty of care to him, I would reverse the trial court on this ground as well.
D.
In addition to enumerated family members, the Thing decision also contemplates “relatives residing in the same household” as within the definition of persons “closely related to the accident victim” who have standing to sue for bystander NEED. (Thing, supra, 48 Cal.3d at p. 668, fn. 10.) Moon contends his complaint stated a cause of action for NEED by virtue of pleading facts meeting this alternative “residency” requirement. I agree.
As alleged in the SAC, Ms. McMahon commenced living periodically with Moon in 1969 when she began to spend at least one month annually with her daughter and son-in-law. So regular were these visits that Ms. McMahon had her own bedroom in the Moon residence beginning in 1979. In 1992 and 1993 she lived with the Moons for four or five months, and finally in 1998, she “moved permanently to California and lived with the Moons for a period of time before moving to [respondent’s] assisted living facility.” Apparently, that move took place in early January 1999, and Ms. McMahon remained at respondent’s facility until July of that year.
The majority points out that, at best, Ms. McMahon resided with the Moons for a “period of time,” and then only until the time of her admission *1024to respondent’s facility. (Maj. opn., ante, at p. 1012.) After stating that it is not necessary to plead that the injured person was residing in the plaintiff’s household at the precise time when the distress-producing injury occurred, the majority then articulates a new rule requiring that the period of residence, while not necessarily contemporaneous, must at least be “for a substantial period of time.” (Maj. opn., ante, at p. 1013.) Therefore, because Moon did not have the prescience to anticipate the majority’s holding, his pleading is inadequate for not so alleging, and his action subject to dismissal. (Ibid.)
This case was decided on demurrer. In evaluating a demurrer, “[t]hough a plaintiff may be unable to prove his allegations, he need only plead facts showing that he may be entitled to some relief. [Citation.]” (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 797 [198 Cal.Rptr. 208].) Sustaining a demurrer without leave to amend is a drastic measure, which ordinarily will constitute an abuse of discretion if there is any reasonable possibility that the defective complaint can be cured by amendment. (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1304 [243 Cal.Rptr. 390].) If the complaint does not set forth sufficient facts to state a cause of action, but may possibly be cured by supplying omitted allegations, the plaintiff should be afforded the opportunity to amend the complaint. (Ibid.) The fact that the matter is on appeal from a dismissal following demurrer invokes a rigorous standard of review—the prism through which we view the issues presented to us. (See Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 611 [236 Cal.Rptr. 605].)
Therefore, even accepting the rationale adopted by the majority and the new legal requirement it imposes, customary rules of appellate review on demurrer demand that Moon at least be given leave to amend his complaint. This portion of the majority holding alone mandates reversal of the judgment.
III.
The scope of the tort of NIED has been one of continuing controversy in California jurisprudence. Since 1989 when the Supreme Court decided Thing, that opinion has been examined or cited 99 times by intermediate appellate courts of this state faced with various issues relating to the tort’s application. In the intervening 13 years, the Supreme Court has not clarified its views relating to bystander NIED; nor has it expounded upon the dicta that determines the outcome of this appeal. It also bears mentioning that *1025Thing was a four-to-three decision, and that none of the jurists in that case sit on the Supreme Court today.
Given these matters, and the ambiguity of footnote 10,1 urge the Supreme Court to grant review of this case.
Bystander liability is one form of a claim for negligent infliction of emotional distress. (Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1037 [71 Cal.Rptr.2d 891].) “ ‘Bystander’ cases are cases in which the plaintiff was not physically impacted or injured, but instead witnessed someone else being injured due to defendant’s negligence. (See, e.g., 6 Wilkin, Summary of Cal. Law (9th ed. 1988) Torts, § 841 et seq., p. 197 et seq. . . .)” (Ibid.)
The other two prongs of the test are not in issue in this case. They are whether the plaintiff: 1) 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 2) as a result suffers serious emotional distress. (Thing, supra, 48 Cal.3d at pp. 667-668.)
Because the plaintiff in Thing was the biological mother of the accident victim, there was no need to decide what other relationships might qualify for NIED recovery. Thus, that portion of the opinion is dicta of a sort ordinarily not binding on lower courts. (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328 [27 Cal.Rptr.2d 406].) However, it has been held that when the dicta emanates from our highest court, it should be considered “highly persuasive.” (Ibid.)
Time Almanac 2001 (Information Please) page 126.