California Appellate Lawyer Blog

In Gorlach v. The Sports Club Company. B233672 (filed October 16, 2012), the Court of Appeal, Second Appellate District, Division Four, affirmed the trial court's denying defendant's motion to compel arbitration. While the defendant conceded that plaintiff never signed a written contract to arbitrate, defendant claimed equitable estoppel or implied-in-fact agreement.

Plaintiff Susan Gorlach resigned as defendant's human resource director in August 2010. Prior to 2010, defendant had no arbitration agreement with its employees. It then revised its employee handbook to contain such an agreement and tasked plaintiff to get all employees to sign. Through July 2010, not all employees had signed, prompting plaintiff to write company executives to consider what to do about employees who failed to sign. She led executives to believe she had signed, when in fact she had not. She resigned August 6, 2010, and later sued defendant for constructive termination including a cause of action claiming paramour sexual harassment.

Defendant Sports Club moved to compel arbitration contending plaintiff assented to it by her continued employment, yet acknowledging that she had not executed the arbitration agreement. The trial court found that, while plaintiff "intentionally misled" defendant to believe she was "on board" with the new agreement, she never planned on signing it, thus there was no basis to find that an agreement to arbitrate existed between the parties.

Continue reading "Former human resource director's deceiving employer she had executed arbitration agreement neither implies agreement nor estops her from denying. " »

Dutra v. Mercy Medical Center Mt. Shasta (filed September 26, 2012) 2012 DJDAR 13447, plaintiff Dutra claimed defendant wrongfully terminated her employment in violation of public policy codified in California Labor Code section 132a, which generally prohibits discharge of an employee for filing a workers'compensation claim. After jury selection, the trial court granted defendant's motion to dismiss the claim because the Workers' Compensation Appeal Board (WCAB) had exclusive jurisdiction to adjudicate the claim; plaintiff declined the court's offer allowing amendment of her complaint. The Court of Appeal, Third Appellate District, affirmed.

The appellate court rejected plaintiff's legal argument that the California Supreme Court, in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, provided that a plaintiff could pursue common law remedies as an alternative to the Labor Code's vesting of jurisdiction in the WCAB. As the court put it, "City of Moorpark does not go as far as plaintiff suggests. " While the high court did say a plaintiff is not precluded from pursuing remedies under FEHA statutory provisions and common law wrongful termination, the other half of the analysis in that case was to decide whether a violation of FEHA could serve as a basis for a claim of wrongful termination in violation of public policy. On this point, the Supreme Court wrote that when a statute stating a public policy also includes certain substantive limitations in scope and remedy, these limitations also circumscribe the common law cause of action.

Here, Section 132a has the limitation of establishing a specific procedure and forum for addressing a violation with limited remedies. A claim in common law tort bootstrapping a violation of this statute would give a broader remedy than the statute allows. To the extent that this plaintiff claims the wrong committed against her fell outside of the "compensation bargain," she could have alleged different causes of actions which she chose not to.

I see three important lessons that are suggested by this opinion. First, if you seek a common law remedy, do not try to infuse it with a statutory theory of recovery that is limited in scope, and may end up getting the cause of action dismissed. Second, never give short shrift to a trial court's invitation to amend your complaint. And third, more generally, if you wish to quote from a case opinion, make sure you have the proper context.

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients, clients or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this blog contains general information and may not reflect current legal developments, verdicts or settlements. The Firm expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this blog.

California Government Code section 815.6 exempts a public entity from immunity if it has failed to discharge a statutory "mandatory duty" designed to protect from injury. Los Angeles County Code (LACC section 10.12.090C states that the county animal care and control department "shall capture and take into custody . . . [a]ny animal being kept or maintained contrary to [LACC sect. 10.40.010W]." That section states, "No animal shall be allowed to constitute a hazard or be a menace to the health, peace or safety of the community."

In County of Los Angeles v. Superior Court (Faten) (filed September 5, 2012, certified for publication on Sept. 20) 2012 DJDAR 13264, minor Kameron Faten and his two bothers were walking home from school when two pit bulls jumped over the fence of John Boles' residence and viciously attacked Kameron. The boys' parents sued on their behalf for personal injury and emotional distress, naming Bowles, his landlord and the County of Los Angeles.

The County moved for summary judgment in the Superior Court, claiming the above-cited portions of the county ordinance were merely discretionary or permissive, thus it was immune and owed no duty.

The evidence reflected that on one occasion, a pit bull running loose in the neighborhood was seized and eventually euthanized, but not identified with any residence or owner. The County had received 9 previous telephone calls about the many pit bulls that had been at the Bowles' residence during the past two-and-a-half years before the attack on Cameron. Pit bulls at the residence were reported to have jumped the fence, to have run loose and chase people. However, County animal control officer were unable to find any dogs of the Boles to be running loose. Officers had gone to the residence and posted notices, finding no responsible person home except on one occasion. The one time contact was made with a member of the Boles family occurred three months before the Faten incident when an identified neighbor reported that two pit bulls had jumped the Boles' fence and killed two of her goats in her yard. Officers gave written notice at that time that the Boles could keep no more than 3 dogs.

Continue reading ""Shall" is not always mandatory language; LA County not required to capture pit bulls because whether "hazard" is discretionary decision under immunity statute " »

The general history of the instant foreclosure is all too familiar. Home loan borrower starts with a low adjustable rate loan based on now-bygone high home values. The interest adjusts in a few years to more than twice the original rate, more than doubling the homeowners' payment on a home that now is substantially "underwater" due to decreased home values. Eventually, the lender itself goes under and is replaced by a successor.

In Ragland v. U.S. Bank National Association, Inc. (filed September 11, 2012) 2012 DJDAR 12769, we have the added facts that the borrower, Pam Ragland, had remained current on her mortgage obligation up to April 2008, when she spoke about loan modification to a lender representative who told her she would have to get "behind" on her loan in order to modify the loan. Additionally, Ragland had executed her note after complaining that her signature had been forged on other loan documents (confirmed by a handwriting expert). She thought this part of her loan history justified her request to have the lender waive the normal modification fee. The rep said he would get back to her. As she was not certain she wanted to miss her loan payment and apply for a modification without further assurances and she did not hear back at the time for her to make her April 2008 payment without incurring a late charge, she called the rep again. He referred her to his supervisor who stated that if any documents in her loan packet had been forged, she may not be responsible for anything in her loan. She was advised not to pay anything while the legal department investigated.

By late April 2008, Ragland received a delinquency notice from the lender. She immediately called and was advised by two separate reps not to worry because collection activity was frozen. Still nervous about all of this, she attempted to transmit a loan payment, which was refused by the lender. On May 5, 2008 she received a notice of foreclosure. Yet another call to the lender was responded to: legal department will get back to you. Predictably, she did not hear back and instead was greeted by another letter in early July 2008 that advised foreclosure was under way. She again got the "runaround," being told her situation was not properly flagged with legal and the foreclosure would be on hold. She again tried to make mortgage payments, three in this instance, which were again rejected. The foreclosure went forward and she filed her lawsuit.

Continue reading "Triable issues of lender fraud requires reversal of summary adjudication of claims for damages caused by foreclosure " »

With apologies to Robert Frost and his poem "Mending Wall," there might be a circumstance when a good fence does make a good neighbor: that is where the fence marks an agreed-upon boundary between two neighbors. In Martin v. Van Bergen (filed September 6, 2012) 2012 DJDAR 12577, the Van Bergens contended the fence that had been built between the Van Bergens' property and that of the Martins defined the boundary between the two properties because their predecessors who owned the two properties when the fence was built created a "boundary by agreement." The Court of Appeal, Second Appellate District, Division Six, recognized this doctrine, but found one all too obvious element missing in the Van Bergen's proof: an agreement. It affirmed the quiet title judgment in accordance with the Martins' survey of the true boundary.

The Martins own a 240-acre parcel in Paso Robles that include their residence and a vineyard. The Van Bergens own a contiguous property consisting of their residence and an almond orchard. A fence runs over Martin's parcel for a portion of the 1300 feet parallel to the boundary. The area between the boundary and the fence has almond trees farmed by the Van Bergens, encroaching on the Martin parcel. The almond orchard was planted in 1947; the Van Bergens' predecessor-in-interest was assisted by Martin's predecessor, who possessed some survey equipment, in the planting. No one recalls any survey equipment actually being used; the "deer" fence constructed at that time marked the extent of almond trees simply replacing and matching the location of an old fence used to contain cattle.

In 2005, upon acquiring their property, the Martins had professional surveyors perform a survey for them. The survey established the boundary as showing the Van Bergen orchard and fence encroached on the Martins' property. The boundary indicated that 8 to 10% of the Van Bergens' almond crop was being grown on the Martins, property. The Van Bergens sold only about 25% of their crop commercially. The Van Bergens also had a professional survey performed which showed the boundary line to be different than both the fence line and the Martins' survey.

Continue reading "Doctrine of boundary by agreement: good fences don't make good neighbors absent an agreement." »

In Leung v. Verdugo Hills Hospital (filed August 23, 2012) 2012 DJDAR 11705, the California Supreme Court tackled what it saw as an inequitable result to personal-injury plaintiffs and repudiated the common law release rule.

Plaintiff minor suffered irreversible brain injury shortly after birth. Through his guardian mother, he settled his claim for damages with his pediatrician for that defendant's malpractice insurance policy limit of $1 million. The trial court refused to grant these parties' request for an order that the settlement was in good faith. Nonetheless, plaintiff stood by the settlement and proceeded to trial against the remaining defendant, the hospital. A jury found both defendants negligent, assessing approximately $15.504 million in damages. The jury apportioned fault as 55% as to the pediatrician, 40% as to the hospital, and 5% as to the minor's parents. The defendants' portion of fault left them liable for approximately $14.729 million.

The Court of Appeal felt duty-bound to follow the common law release rule which would relieve the nonsettling hospital from any liability for plaintiffs economic damages (the above total damages less the $250,000 MICRA-limited non-economic damages) because plaintiff's settlement with, and release of liability against, the joint torfeasor pediatrician also released the non-settling hospital. This is where the Supreme Court stepped in to unanimously repudiate the common law release rule.

The state high court determined that basic tort principles support the court's adoption of the "setoff-with-contribution" rule. The court's opinion states that this does not change the respective positions of the parties and is fully consistent with both comparative fault and joint and several liability.

Continue reading "Release rule gives way to set-off-with-contribution absent finding settling tortfeasor's policy-limit-payment was a good-faith settlement" »

I hope those of you reading this blog, or any other blog or case commentary, choose to read the discussed opinion rather than rely on the headnote or summary found in the commentary. Recently I came across the following headnote: "Gentry v. Superior Court, which permits invalidation of class action arbitration waivers, remains viable despite AT&T Mobility LLC v. Concepcion." The case opinion referred to is Truly Nolen of America v. Superior Court (certified for publication on August 13, 2012) 2012 DJDAR 11207.

If you think from this heading that you will find that the opinion discusses and supports the application of the Gentry analysis that policy considerations supporting class arbitration will rule the day over the applicable contract, you will find that you have been seriously misled. While the California Court of Appeal, Fourth Appellate District, Division One, does say that California Supreme Court case of Gentry has not been expressly overruled, it goes on to say that the U.S. Supreme Court's reasoning in Concepcion strongly suggests Gentry is toast (my term, not theirs). The appellate court states, "[T]o the extent the Gentry decision would permit such a generalized showing to negate the parties' contractual intentions, that conclusion is no longer valid after the Concepcion and Stolt-Nielsen decisions." (See previous blog of June 19, 2012.)

The appellate court found in Truly Nolen that, in any event, the trial court erred in requiring class arbitration; that even if the Gentry factors still apply, they were not established in this case. It remanded the matter to the trial court in issuing writ of mandate in favor of petitioner Truly Nolen. The trial court was instructed to determine whether there is a contractual basis for finding the parties mutually agreed to class arbitration. Thus the actual holding of the case left little doubt that it was applying the principles found in Concepcion rather the Gentry factors.

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients, clients or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this blog contains general information and may not reflect current legal developments, verdicts or settlements. The Firm expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this blog.

In Touchstone Television Productions v. Superior Court (B241137, filed August 16, 2012), petitioner Touchstone had an agreement with actress Nicollette Sheridan for the first season of the television series Desperate Housewives in which Touchstone had the exclusive option to renew Sheridan's services on an annual basis for an additional six seasons. During Season 5, Touchstone informed Sheridan it would not renew her contract for Season 6, while paying her for the entirety of Season 5. Sheridan sued for wrongful termination in violation of public policy, alleging that she was "fired" because she had complained about a battery committed against her by the series' creator Mark Cherry. A jury deadlocked on this claim resulting in a mistrial. Touchstone's motion for a directed verdict was denied by the trial court, and Touchstone petitioned the Court of Appeal for extraordinary relief.

The Court of Appeal, Second Appellate District, Division Four, stayed the pending retrial, issue an alternative writ of mandate, and, after receiving briefing and oral argument, concluded the trial court erred in denying Touchstone's motion for directed verdict. The court was convinced there was clear legal precedent on the merits: "A cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract. In that instance, there is no termination of employment, but, instead, an expiration of a fixed term contract. (Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39.)"

The appellate court, however, rather than ordering the entire action dismissed, sent the matter to the trial court to allow Sheridan to file an amended complaint alleging a cause of action under California Labor Code section 6310 that Touchstone retaliated against her for complaining about unsafe working conditions (in the form of Cherry's conduct) by deciding not to exercise its option to renew her contract. The court noted that, after this petition was filed, Sheridan had moved the trial court to allow her to amend her complaint to add the Section 6310 claim; the trial court had denied that motion.

Continue reading "Writ granted: producers of Desperate Housewives granted directed verdict on actress's wrongful termination claim." »

California Business & Profession Code section 10471 is a "remedial statute intended to protect the public from loss resulting from unsatisfied damage awards against licensed real estate personnel." (Doyle v. Department of Real Estate (1994) 30 Cal.App.4th 893.) It is punitive in the sense that an agent's license is immediately suspended if the state pays from the fund and that license will not be reinstated until the payment is paid back in full. It is limited in that it only applies to an unsatisfied judgment for intentional fraud.

In Worthington v. Davi (G045537, filed August 7, 2012), plaintiffs arbitrated three transactions claiming breach of fiduciary duty and one transaction claiming fraud committed by their real estate broker and others, and received a total award of $280,000. The award was confirmed in a judgment which went unpaid. Plaintiffs applied to the state's Real Estate Commissioner for recovery from the 10471 recovery fund. The Commissioner allowed recovery of $50,000, allowing recovery only on the "fraud" transaction, and disallowing the other three.

Plaintiffs applied to the trial court for an order directing payment of the judgment from the recovery fund as to the remaining three transactions. The trial court ordered payment on two of these three. On these three transactions, the arbitrator did not expressly state the award was for "fraud." The trial court found that in two of these transactions, there was a breach of fiduciary duty resulting from fraudulent transactions. However the remaining fiduciary transaction involved no sufficient stated showing of fraud. Both sides appealed.

Continue reading "Real Estate Recovery Program provides recovery for broker's fiduciary breach if factual findings supporting judgment state conduct constituting deliberate fraud" »

In Nelsen v. Legacy Partners Residential, Inc. (filed July 18, 2012) 2012 DJDAR 9956, plaintiff Lorena Nelson worked for defendant as a property manager from 2006 to 2009. Early in her employment she received a 43-page pre-printed form employee handbook that included a small-print arbitration clause at page 42 headed "TEAM MEMBER ACKNOWLEDGMENT AND AGREEMENT." The handbook gave no option to arbitration as a means of resolving employment disputes. She signed the agreement. In 2010, she filed a class-action lawsuit against defendant primarily alleging violations of wage and hour laws.

Defendant moved the trial court to compel plaintiff to arbitrate the matter as an individual party pursuant to the arbitration clause. Plaintiff opposed the motion, claiming the arbitration clause was unconscionable and in violation of California public policy favoring class actions in this type of lawsuit; if arbitration was to be compelled, argued plaintiff, the court would have to allow class arbitration. The trial court granted the motion to compel individual arbitration, and plaintiff appealed.

To start, the California Court of Appeal, First Appellate District, Division One, questioned whether plaintiff is allowed to appeal this order because it is not a final judgment. (Civil Code section 906.) Nelson argued the "death knell" doctrine, citing Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277: that the order is effectively the death of the class litigation. However, the appellate court pointed to the applicability of this doctrine only where it is unlikely that any individual action will proceed. But the court stops short of deciding this issue of appealability, and instead exercised its discretion to treat the appeal as a petition for writ of mandate.

On the merits, the Court of Appeal determined that plaintiff failed to meet her burden of showing (1) the arbitration clause was both procedurally and substantively unconscionable, and/or (2) that the clause required class-wide arbitration.

Continue reading "Purported appeal of order compelling arbitration treated as extraordinary petition; order compelling individual arbitration affirmed" »

There are approximately 50 million Americans uninsured for healthcare. The Patient Protection and Affordable Care Act ("ACA") seeks to have about 30-35 million of those covered by private and public health insurance. About half of those will be covered under the "Individual Mandate" that each individual, subject to certain exceptions, purchase health insurance or pay a "penalty". This half will also consist of persons who become insured as a result of the mandate that "large" employers provide certain coverage or pay a penalty. The other approximate half was to consist of those individuals newly covered under an expansion of Medicaid. The United States Supreme Court addressed the constitutionality of the "Individual Mandate" and the Medicaid Expansion.

Before the Court could address the merits of the challenge to the Individual Mandate, the Court had to determine whether jurisdiction was precluded by the Anti-Injunction Act, which provides that the court lacks jurisdiction of suits to restrain the assessment or collection of "any tax." Noting that ACA required the penalty to be assessed and collected "in the same manner as taxes," Chief Justice Roberts concluded that this language made little sense if the assessable penalties were themselves taxes for purposes of the Anti-injunction Act. Thus, the Court had jurisdiction.

Chief Justice Roberts then found ACA to be constitutional in part and unconstitutional in part. Joined by Justices Scalia, Kennedy, Thomas and Alito, the Chief Justice found that the Individual Mandate was unconstitutional under the Commerce Clause. To permit Congress to regulate individuals because they chose not to become active in commerce by purchasing a product would open a new and potentially vast domain of unauthorized Congressional authority. However, noting that there could be no criminal penalty and no government lien for nonpayment of the "penalty," Chief Justice Roberts determined the Individual Mandate could be upheld under the Taxing Clause because the "penalty" could reasonably be construed as a tax on those with a certain level of income who chose to go without health insurance. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined this determination.

Joined by all other Justices besides Ginsburg and Sotomayor, Chief Justice Roberts found the portion of ACA that permitted the Secretary of Health and Human Services to withhold all Medicaid funding from states that refused to accept the Medicaid expansion as unconstitutional coercion. However, rather than strike down the Medicaid expansion, Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, ruled that this portion of ACA was not enforceable. Thus, states are free to accept or reject the Medicaid expansion.

Continue reading "National Federation of Independent Business v. Sebelius" »

Does a dismissal with prejudice after a case settles under California Code of Civil Procedure section 998 preclude an award of attorney fees because the case did not proceed to "judgment?" This is the principal question raised in the Court of Appeal, Fifth Appellate District, case of Wohlgemuth v. Caterpillar, Inc. (filed July 23, 2012, F061981). The short answer is no.

The plaintiffs purchased a new motor home, the engine of which was manufactured and warranted by defendant. After there had been numerous attempts by defendant to repair what plaintiffs claimed were engine defects, plaintiffs sued under the Song-Beverly Warranty Act (Civil Code section 1790 et seq.), which entitles a prevailing consumer to attorney fees and costs in addition to damages.

Shortly before trial, defendant made a "998" offer to compromise by paying plaintiff $50,000 in exchange for a dismissal with prejudice and standard release of all claims. Plaintiffs accepted the offer, which was silent on attorney fees and costs, dismissed the action and then moved to recover their attorney fees and costs under Civil Code section 1794, subdivision (d). Defendant opposed the motion. The trial court granted the motion awarding $117,625 in attorney fees and $7,737 in costs.

Case law is clear that where a CCP 998 offer is silent on costs and fees, the prevailing party is entitled to costs and, if authorized by statute or contract, attorney fees." (Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 168.) Defendant's primary argument both in the trial court and on appeal was plaintiffs could not recover attorney fees and costs because there was no judgment entered in plaintiff's favor. This argument cites the language of 1794(d): a buyer who prevails in any action under the Song-Beverly Act is entitled to recover attorney fees and costs "as part of the judgment."

Continue reading "Dismissal of CCP 998-settled case where agreement silent on plaintiff's statutory claim of attorney fees does not preclude award " »

In Moe v. Anderson (filed July 11, 2012) 2012 DJDAR 9523, the Court of Appeal, Third Appellate District, distinguishes between joinder of plaintiffs against an offending physician defendant sued for separate sexual batteries, and joinder in the same lawsuit of those plaintiffs against the physician's employer for the negligent hiring and supervision of that physician. In the former joinder was found improper, in the latter proper.

Plaintiffs Paula and Edelmira were treated by defendant Anderson for their separate workers' compensation injuries. In May 2009, Paula alleges that Anderson made sexual advances and touched her breasts and vagina, absent her consent. Between July and September 2009, Edelmira alleges that, without her consent, Anderson committed numerous forcible sexual acts against her including oral copulation, sexual intercourse, and sodomy. They jointly filed an action against Anderson and his employer, defendant Healthworks.

In the trial court, both defendants demurred arguing plaintiffs were improperly joined because each plaintiff alleged events that constituted different conduct and transactions. Plaintiffs responded that their claims arose out of the same series of transactions and that they shared a common interest including that each of their employers referred them to the same medical facility; additionally they both sued a common codefendant, Healthworks. The trial court sustained the demurrers without leave to amend; the ruling was without prejudice to plaintiffs' filing new and separate complaints. Plaintiffs appealed.

Continue reading "Plaintiffs alleging separate acts of sexual battery by physician are not properly joined in single action " »

The California Supreme Court has offered some clarification to the divergent appellate court opinions written in recent years on the subject of protection of an attorney's work product in Coito v. Superior Court (filed June 25, 2012) 2012 DJDAR 8713. To the extent there was a split of authority, the court has drawn the line.

Plaintiff Coito, the mother of a teenager who drowned in Tuolomne River, sued the City of Modesto and State of California for wrongful death. Six juvenile witnesses were interviewed by investigators for State's attorneys, who recorded the interviews. In discovery, plaintiff demanded the names of the interviewees and production of the taped interviews. State claimed work product protection from disclosure and production. At a motion to compel, the trial court denied plaintiff's motion, except to the extent that State had used the recording during a deposition. On petition for writ of mandate, the Court of Appeal, Fifth Appellate District, majority disagreed, determining these matters did not come within the work product privilege. A dissent/concurrence written by Justice Kane concluded the interviews were at least entitled to qualified privilege and the list of interviewed witnesses must be produced unless an adequate showing established privilege. The Supreme Court granted review and essentially agreed with the Kane opinion.

The state high court concluded the witness statements constituted work product protected by Code of Civil Procedure section 2018.030. It was not a matter of what each witness said standing alone, but rather what the attorney-directed questions suggested. The statements are matters of absolute privilege when inextricably intertwined with the attorney-directed statements that suggest the attorney's impressions of the witness and/or theories of the case. But witness statements procured by an attorney will not always reveal the attorney's thought process. An in camera hearing provides an adequate way of showing whether the absolute privilege applies.

Continue reading "Work product privilege: recorded witness statements get at least qualified protection; identity of witness not automatically protected" »

John Leonard was first diagnosed with mesothelioma after his marriage to Sandra Leonard in 2001. This progressive and fatal disease allegedly resulted from John's exposure to asbestos between 1958 and 1995 caused by John Crane, Inc. In Leonard v. John Crane, Inc. (filed June 13, 2012) 2012 DJDAR 7862, Sandra's lawsuit for loss of consortium was dismissed by the San Francisco Superior Court when it sustained Crane's demurrer without leave to amend. The trial court relied upon Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, which held that a loss of consortium claim is cognizable only if the plaintiff was married to the injured spouse at the time of defendant's wrongful conduct. The Court of Appeal, First Appellate District, Division Five, reversed on appeal, after having denied an earlier petition for writ review.

On appeal, defendant argued that the Zwicker holding was "binding" on the trial court. Plaintiff disagreed, arguing not only that Zwicker was bad law, but also that the case was distinguishable and the purported holding was dicta. Both parties agreed that the focus should be the date of the "injury" to the spouse. Defendant insisted the injury occurred at the time John was exposed to asbestos; plaintiff urged that her claim arose only once John had appreciable and actionable injury.

The appellate court declined to apply Zwicker. First, it agreed with plaintiff that a valid loss of consortium arises when a latent and unappreciated injury initially becomes manifest, which in this case was during marriage. Zwicker involved a medical malpractice claim that became manifest prior to the marriage; the ruling was correct on that point, but is factually distinguishable. Second, the Zwicker court went beyond the facts of its case to state a broader principle: that a loss of consortium necessarily arises at the time the wrongful conduct occurred; the Leonard court found this broadly stated principle to be incorrect.

In reaching its decision, the court discussed the split of authority on this question in other jurisdictions. Now California too has a split of appellate authorities. The court noted that another appellate district, the Second District Court of Appeal recently reached the same conclusion as it had. (See Vanhooser v. Superior Court (Hennessy Industries) (June 1, 2012) ___ Cal.App.4th ___.) Thus the Third District Court of Appeal holding in Zwicker is now at odds with these holdings in two other districts.

Continue reading "Loss of consortium may lie for pre-marriage acts causing latent injury: a lesson that appellate authority may not carry the day" »