California Appellate Lawyer Blog

Employers should know the answer to this question is particularly important when an employee leaves and claims a right to deferred compensation. California Labor Code sections 227.3 require employers to pay employees the balance of "vested vacation time" unused as wages. The California Supreme Court has explained what is meant by vested vacation time: whatever amount of time the employee has labored, where the person is entitled to a certain number of vacation days per year of employment, the consideration is the duration of employment past, making unused vacation time deferred compensation which vests pro rata as the employee renders service. (Suastez v. Plastic Dress-up Co.(1982) 31 Cal.3d 774, 779-781.) The state's Labor Commissioner became concerned that employers would disguise vacation time as sabbatical time to avoid this requirement and issued opinion letters enforceable through the Department of Labor Standards and Enforcement (DLSE). The appellate opinion discussed below examines the DLSE test that emerged and determines the first-impression, threshold question of how to distinguish legitimate sabbatical from vacation.

In Eric Paton v. Advanced Micro Devices,Inc. (opinion filed August 5, 2011) 2011 DJDAR 11831, plaintiff sued defendant employer as a representative class member for defendant's failure to pay him for an eight-week "sabbatical" he had earned yet had not used by the time he resigned. Defendant filed a motion for summary judgment in the Santa Clara County Superior Court, arguing the plaintiff's sabbatical benefit is not vacation within the meaning of Labor Code section 227.3. The trial court granted defendant's motion and ordered judgment in defendant's favor.

The Court of Appeal, Sixth Appellate District, reversed, finding that there are triable issues of fact that should be decided by a jury. The appellate court identified four factors (the first three as found in the DLSE test) that would tend to show that a sabbatical program is not regular vacation: (1) leave that is granted infrequently, (2) length adequate to achieve employers purpose of enhancing employee's performance upon return, (3) this leave is in addition to regular vacation leave that is comparable to the average vacation leave in the relevant market, and (4) some feature that demonstrates the employee is expected to return to work.

Continue reading "Is that "sabbatical" in your employment contract really a "vacation?"" »

Long before there was Marc Anthony, there was Ojani Noa. Now that Jennifer Lopez is apparently amicably ending her 7-year marriage to Marc Anthony, the battle with her first husband, Noa continues. Lopez requested arbitration of the complaint she filed against Noa and his agent Ed Meyer regarding their collaborative attempts to produce and sell "The JLo and Ojani Noa Story," as well as unseen home video footage. She alleges a previous settlement agreement provided that Noa would not disparage certain parties including Lopez; that agreement included an arbitration clause.

The Los Angeles Superior Court denied the motion to compel arbitration, finding there was an insufficient showing by Lopez that (1) Noa agreed to arbitrate any future disputes with Lopez and (2) Meyer either benefitted from the settlement agreement or had a relationship with Noa that pre-existed that agreement. In the unpublished opinion of Lopez v Noa, B222183, filed July 29, 2011, the California Court of Appeal, Second Appellate District, Division 4, reversed the trial court and directed the court to grant the motion to compel arbitration.

The appellate court found sufficient proof established Noa's agreement to arbitrate the present subject of litigation because, even though the settlement agreement was primarily between Noa and Mojo Restaurant, Lopez was specifically named in the agreement as a releasee: that "[a]ny future dispute between Noa and Mojo or others released herein . . . will be submitted to confidential arbitration," and that Noa would not " in any way or mode, criticize, denigrate, cast in a negative light, or otherwise disparage or cause disparagement to Mojo, Lopez or any of the Releasees." The agreement was specific that Noa would not disclose for financial gain any intimate details about his relationship with Lopez. So regardless of whether Lopez was a signatory to the settlement agreement, she was entitiled to enforce the arbitration provision in the present case as a third party beneficiary, even if she is not considered as a direct party to it.

Continue reading "JLo wins right to arbitrate claim ex-husband and agent plan video disparaging her" »

We have here yet another opinion where an arbitration clause strikes out. Not surprising, in the light of the California Supreme Court "crack-down" more than a decade ago in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.

Zullo v. Superior Court (filed June 21, 2011, certified for publication July 12, 2011) 2011 DJDAR 10519 came before the Court of Appeal, 6th Appellate District on petition for writ of mandate after the Santa Clara Superior Court granted the petition to compel arbitration filed by real party in interest, Inland Valley Publishing, Inc, petitoner Zullo's former employer, who had been sued for wrongful termination under California's Fair Employment and Housing Act (Government Code section 12920 et seq. (FEHA). After staying the arbitration and issuing an order to show cause, the appellate court granted the petition and issued a writ vacating the trial order with directions to deny the motion, allowing plaintiff's court action to proceed.

The Court of Appeal found that the purported agreement was actually an employer policy, implemented like the rest of the policies in the employer handbook, on a take it or leave it basis. The arbitration clause was on page 54 of a 58-page handbook and made arbitration the exclusive means to resolve any dispute an employee might raise arising out of termination of employment. Petitioner had signed an "acknowledgement of receipt" of the handbook. Petitioner claimed the clause was unconscionable as an adhesion contract and relied upon the Armendariz case which set forth a procedural element (oppression and surprise) and a substantive element (overly harsh or unjustifiable result).

Continue reading "Employee handbook not a good place for an arbitration clause: ruled unenforceable as "take it or leave it" " »

During my time on the trial court bench, I would often hear the following analogy argued concerning the concept of circumstantial evidence: "When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck." I doubt that poet James Whitcomb Riley, when he first coined this phrase in about 1884, could have imagined he was providing attorneys with trial argument material.

In California Traditions, Inc. v. Claremont Insurance Co. (filed June 21, 2011, certified for publication on July 11, 2011) 2011 DJDAR 10405, the project developed by plaintiff consisted of 146 separate residences with no shared walls, halls, roofs or plumbing or electrical lines. But to avoid minimum set-back requirements for non-condominium single family homes and to allow higher density, the project was developed, marketed and sold as condominiums. Plaintiff hired Ja-Con Systems to do the rough framing work. Ja-Con was insured under a comprehensive general liability policy issued by defendant. That policy provided an exclusion for work on condominium and townhouse projects. In a separate action homeowners sued for defective construction; plaintiff developer obtained a $2 million judgment on its indemnity cross complaint against Ja-Con and now seeks to satisfy that from the policy.

The San Diego Superior Court granted defendant's motion for summary judgment based on the undisputed fact that the condominium exclusion precluded recovery. Plaintiff had argued that Ja-Con had a reasonable expectation of coverage because the units gave the outward appearance of non-condominium detached homes.

Continue reading "Condominium construction work excluded in liability insurance policy: looks can be deceiving" »

I have learned that when I buy a cell phone at a discount, conditioned on my entering a service agreement for a defined time, I end up paying the sales tax on the undiscounted price stated for the phone. Plaintiff had this same experience, but was surprised to learn that she could have negotiated for a lesser or no sales tax because under California Code of Regulations, title 18, section 1585, subdivision (b) (3), while the retailer is required to report and pay the full sales tax, it may (rather than must) collect that charge from the consumer.

In Bower v. AT&T Mobility LLC (filed June 29, 2011) 2011 DJDAR 9801, the California Court of Appeal, Second Appellate District, Division One, affirmed the trial court's sustaining of demurrer without leave to amend in part because plaintiff Bowers failed to show legally cognizable injury. Bowers had claimed reliance upon misleading statements by AT&T that she had no choice but to pay the sales tax on the undiscounted price. While it is true that the retailer must remit the full tax to the state, because the retailer does have a choice to pass the cost on to the consumer, she asserted that she had been denied the opportunity to negotiate the amount of sales tax she had to pay. In her second amended complaint, Bower tried to allege actual loss in citing this lost opportunity; the trial court had found this allegation too "speculative."

The appellate court agreed that the allegations were insufficient to plead the required element of injury in fact as one must do in an action brought under Business & Professions Code sections 17200 or 17500 (unfair business practice or misleading advertising). There was no economic injury because plaintiff could not allege she would not have bought this product but for the misrepresentation and that the product was worth less than represented.

Often in mediations, I state my sympathy to a party claiming to have been wronged, but find it necessary to ask, "But what are your damages?" Many wrongs are very real but are left without a remedy. Some cases like the above are so for lack of standing as a matter of pleading. Others are so because a plaintiff cannot present factual proof of loss. Attorneys are wise to assess damages before even taking a case, no matter how "wrong" the conduct of the prospective defendant.

Client is represented by attorney under fee agreement containing no arbitration provision. Attorney changes firms and requests client to sign new fee agreement which includes arbitration clause. Client fails to read this clause. Under these circumstances, does the attorney have a fiduciary duty to explain the arbitration clause?

In Desert Outdoor Advertising v. Superior Court (filed June 17, 2011) 2011 DJDAR 8939, plaintiffs opposed defendant attorney's motion to compel arbitration of plaintiffs' action alleging malpractice and breach of fiduciary duty. The San Francisco Superior Court granted the motion. Plaintiffs petitioned for writ of mandate to set aside that order. Initially, the California Court of Appeal, First Appellate District, Division One, summarily denied. The California Supreme Court granted review and transferred the matter back to the Court of Appeal with directions to vacate the denial and issue an order to show cause. On reconsideration, the appellate court reasoned that the attorney had no duty to explain the arbitration clause under these circumstances and again denied the writ petition.

The appellate court refused to buy plaintiffs' argument that they were essentially misled to believe that the "new" agreement was just a formality due their attorney's change of firms. Because the original fee agreement did not have an arbitration clause, absent counsel advising them differently, plaintiffs claimed they assumed the new agreement likewise did not include an arbitration clause. On this basis, they saw no reason to carefully read the new agreement. In deferring to the factually findings of the trial court under a substantial evidence standard of review, the appellate court noted the facts belied plaintiffs' argument: the new agreement was about twice the length of the first, and one of the plaintiff's principals read the agreement carefully enough to make a minor change on the page following the page where the arbitration clause appeared.

In any event, for the plaintiffs to say they failed to carefully read the agreement is unreasonable, and the only way the court could see plaintiffs succeeding in showing they were improperly induced into signing the agreement was to prove their reliance on claimed misrepresentations was reasonable. Nonetheless, plaintiffs argued they were victims of constructive fraud arising from their attorney having a fiduciary duty to advise of the existence and meaning of the arbitration clause in the new agreement. Not so, said the court; the scope of the fiduciary obligation depends on the circumstances including the sophistication of the client. The court found the plaintiffs were sophisticated in business matters and were told by the attorney to read the new agreement--there was no duty to explain further.

I have two thoughts. One, it was pretty gutsy for the appellate court to "stick to its guns" and reinstate its denial of the writ petition after being told by the Supreme Court to perform a reasoned reconsideration. Second, one has to wonder at what point the line is drawn in determining the sophistication of a client such that the fiduciary duty of an attorney is lessened.

RiverIsland Cold Storage, Inc. v. Fresno-Madera Production Credit Association (2011) 191 Cal.App.4th 611, review granted April 20, 2011 (S190581)

California's parol evidence rule generally prohibits a party from introducing any parol evidence which varies or contradicts the terms of an integrated written agreement. (Code of Civil Procedure section 1856, subdivision (a).) Under the statutory "fraud exception" to the parol evidence rule, however, a party is permitted to introduce parol evidence "to establish illegality or fraud." (Code of Civil Procedure section 1856, subdivision (g).)

The controlling authority on the scope and application of the "fraud exception" to the parol evidence rule is Bank of America National Trust and Savings Association v. Pendergrass (1935) 4 Cal.2d 258 in which the California Supreme Court declared: "Our conception of the rule which permits parol evidence of fraud to establish the invalidity of the instrument is that it must tend to establish some independent fact or representation, some fraud in the procurement of the instrument, or some breach of confidence concerning its use, and not a promise directly at variance with the promise in the writing. . . [F]raud may not be established by parol evidence to contradict the terms of the writing." (Id. at 263-264; emphasis added.)

In 2004, the Supreme Court, in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, reaffirmed that pre-contract statements about contract terms are not admissible if they conflict with the terms of the writing, stating that "the parol evidence rule, as a practical matter, provides 'absolute protection from liability' for prior or contemporaneous statements at variance with the terms of a written integrated agreement." (Id. at 347, fn. omitted; emphasis added.)

Continue reading "California Supreme Court will decide whether the "fraud exception" to the parol evidence rule permits evidence of a prior or contemporaneous representation as to the terms contained in a written agreement which are directly at variance with the terms of t" »

Should people going on amusement park rides be precluded from recovery for injuries sustained on a ride based upon primary assumption of risk? No reported California court has ever ruled yes. The plaintiff in Nalwa v. Cedar Fair LP (filed June 10, 2011) 2011 DJDAR 8575 argued yes, in spite of this dearth of California authority. She did get the vote of one dissenting justice. However the other two sitting on this panel of the California Court of Appeal, Sixth Appellate District ruled no.

Plaintiff had taken her two minor children to Great America Amusement Park in Santa Clara. When they got to the bumper car ride, her seven-year-old daughter and ten-year-old son took the driver's seat in separate cars; plaintiff joined her son as a passenger. Appellant observed a posted warning that advised of possible bumping, sudden movement and directional change, but there was no express prohibition of head-on bumping. The son's car was hit head-on and then immediately hit from behind, causing passenger plaintiff to put her hand on the dash to "brace" herself and fracture her wrist.

Plaintiff sued. After hearing defendant's motion for summary judgment, the trial court entered judgment in favor of the defendant. Among its findings, the court found that the doctrine of primary assumption of risk barred recovery because the injuries resulted from bumping, a risk inherent in the activity. The appellate court majority disagreed and reversed the judgment, holding the primary assumption of risk doctrine is inapplicable to regulated amusement parks in cases such as this where the illusion of risk (as opposed to actual risk) is marketed; there were issues of fact to be tried. The lengthy dissent would hold the doctrine does apply; that the amusement park owes no duty to protect its patrons from risk of injury from bumps inherent in the activity and it did nothing to increase those inherent risks.

Continue reading "Amusement park customer does not assume risk of park-controlled activity" »

Homebuilders Association of Tulare-Kings Counties ("HBA") challenged City of Lemoore's adoption in late 2006 and early 2007 of Fire Protection, Police, Park Land Acquisition, Community Recreation, Municipal Facilities, and Refuse Vehicle and Container Impact Fees. HBA claimed the fees violated the Mitigation Fee Act (MFA) in identifying the use of the fee by facility type as opposed to specific projects. HBA also challenged the manner in which City annually accounted for the use of the fees. HBA also asserted that the Quimby Act preempted the Community Recreation and Park Land Acquisition Impact Fees.

In rejecting these contentions, the Court of Appeal held a plaintiff challenging an impact fee must show the record before the local agency "clearly" did not support the determinations made. The Court also clarified the relationship between the MFA and the Quimby Act concerning city-wide recreation facilities. The Court also upheld the manner in which the City annually accounted for the use of the fees. Out of the multiple fees that were challenged, only one fee, which was one of Lemoore's Fire Protection Fees, was invalidated. As to this fee, the Court stated the MFA did not authorize an impact fee for new development to reimburse the general fund for a portion of the cost of what Lemoore's fee study indicated were already adequate existing facilities..

To see the Court of Appeal Opinion, click here.

By Daniel O. Jamison

Before any reader gets too excited with this caption, be aware that the California Business & Professions Code section 7031, subdivision (a) bar of compensation for contract work done by anyone other than a person or entity stated in a state-registered license is unaffected by the recent case discussed below. As I wrote in Opp v. St. Paul Fire & Marine Ins. Co. (2007) 154 Cal.App.4th 71, 76, a contractor's taking liberty to use a name to contract with parties that is different from a state-registered name and then seek recovery under the contract "would be tantamount to permitting an individual to adopt a prohibited fictitious business name and then to sue on a contract, when such suit would be barred for any other unregistered business."

Nonetheless, in Ball v. Steadfast-BLK (filed June 14, 2011) 2011 DJDAR 8745, the Court of Appeal, Third Appellate District, concluded that plaintiff Ball was a licensed contractor and as such was able to perform contracting work under the name Clark Heating and Air Conditioning, as was stated on his license, even thought the work in question was contracted under the transposed name of "Clark Air Conditioning & Heating." In so concluding, the appellate court reversed the Sacramento Superior Court's sustaining defendant's demurrer without leave to amend plaintiff's cause of action for foreclosure on a mechanic's lien.

What makes the difference in the Ball case is that plaintiff Ball was the sole proprietor of the business who possessed the license and did nothing to mislead his customers that anyone other than himself was the contractor; that he, rather than some possibly shell corporation, would be responsible for the quality of the work. As the appellate court points out, "Contrary to Steadfast's assertion, such a ruling does not 'deprive the CSLB [Contractors State Licensing Board] from providing the transparency and accountability essential to the integrity of the licensing system.' "Where, as here, Ball was the licensee and contracting party, the public would be able to check licensing status."

Continue reading "Contractor, licensed as individual, may recover for work performed even though he used varied business name" »

An appellate court can assist counsel on a discretionary basis by construing appeals from non-appealable orders. It may treat the matter as a writ petition. (Munger v. Gates (1987) 193 Cal.App.3d 1248, 1254.) It may view them as appeals from existing orders. (Vibert v. E. I. DuPont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1538) It may supply a missing judgment. (Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1440-1441.)

But beware. An appellate court's "saving power" is entirely discretionary and case law is replete with California appellate cases expressing weariness with errant counsel. Those cases include one I authored while serving on California's Court of Appeal, Fifth Appellate District, Jordan v. Malone (1992) 5 Cal.App.4th 18. In Jordan, plaintiff candidly admitted no formal judgment was entered, but the appellate court should nonetheless construe the trial court's tentative decision as a final judgment. Not a good tactic to admit laziness. And the California Supreme Court has weighed in that the "saving" of an appeal renders jurisdiction "questionable," which should make reliance on an appellate court's generosity to save your appeal one of last resort. (Connolly v. County of Orange (1992), 1 Cal.4th 1105, 1112.)

Assessing an appeal requires deciding whether a case has sufficient merit to warrant the cost of appeal, what issues in particular have reasonable chance of success, and how best to argue your case. For those of us who have been on the other side of the bench, one piece of advice is absolutely essential: if you are the attorney who tried the case and your client approves and can afford it, get some form of assistance early on from experienced appellate counsel. Even very experienced trial counsel can be too close to the trees to see the forest. A review of your pre-trial, post-trial or pre-appeal matter for specific appellate issues or problems may save you from costly (and avoidable) errors.

In my June 2 blog article I discussed some general rules concerning whether a judgment is appealable. Today, the focus is on these two specific types of orders that have some tricky applications.

The majority view is that discovery sanctions, regardless of amount, are not directly appealable, but are reviewable only on appeal after final judgment or on writ petition. (Ballard v. Taylor (1993) 20 Cal.App.4th 1736, 1739.) There is however a minority of cases that construe Code of Civil Procedure section 904.1 (a) (11) and (12), the general sanctions statute, to apply to all sanctions including matters of discovery and thus allow direct appeal for those sanction orders exceeding $5,000. ( See, for example, Green v. Amante (1992) 3 Cal.4th 684, 690.)

In addition to some conflict in the law, an exception to the rule that a discovery sanction is not immediately appealable also exists. If a party's former attorney or an attorney of a party no longer participating in the litigation incurred the sanction order the order is deemed final as to the attorney who is no longer participating, an analysis akin to the "final as to a party" exception. (Barton v. Ahmanson Developments, Inc. (1993) 17 Cal.App.4th 1358, 1561.) Thus, counsel who believe they or their client have been improperly sanctioned and plan to appeal a sanction order must be especially diligent in reviewing appeal deadlines as the litigation progresses.

Continue reading "More on the question of whether an order is appealable: discovery sanctions and defaults" »

Recently, the issue of awardability of claimed medical damages against tortfeasors has been a hot appellate topic. The California Supreme Court currently has under submission the case of Howell v. Hamilton Meats concerning medical expenses incurred yet paid to the provider in a lesser sum due to downwardly negotiated collateral medical insurance benefits. (See March 10 blog.) When it comes to future medical expenses, the question arises as to whether the expense is too speculative. (See March 31 blog and Behr v. Redmond.) These cases, of course, deal with human medical expenses. Today I will write about animal medical expense (in particular those incurred regarding a wrongfully injured pet).

In Kimes v. Grosser (filed May 31, 2011) 2011 DJDAR 7866), plaintiff's cat Pumkin was shot with a pellet gun allegedly fired by one of the defendants, who were neighbors. Emergency surgery at a cost of $6,000 saved Pumkin's life and an additional $30,000 was spent caring for Pumkin's partially paralyzed condition. Plaintiff sued for these medical costs and further claimed punitive damages. Defendants succeeded on a motion in limine in the trial court to exclude any evidence of plaintiff's expenses because Pumkin was "an adopted stray of very low economic value." With the granting of this motion, plaintiff could not proceed resulting in judgment of dismissal.

The Court of Appeal, First Appellate District, Division One, disagreed with the trial court, reversing the judgment and holding the pet owner can recover the costs of care of the pet attributable to the injury if the costs are found to be reasonable and necessary, and punitive damages if proven. While pets are considered property of their owners, the jury instruction on injury to personal property (CACI NO. 3903J) does not apply here as was argued by defendants. That capsulation of law suggests that an owner can only recover the lesser of the diminution in market value of the property and the reasonable costs of repair. Nor is this a case of the plaintiff trying to recover due to the sentimental or emotional value of the pet (in contrast to McMahon v. Craig (2009) 176 Cal.App.4th 1502). Under California Civil Code section 3355, one is entitled to value property based upon its unique economic value.

Continue reading "Tort Claim Is Actionable As Plaintiff May Recover Damages for Reasonable Treatment of Pet Even If Animal Has No Market Value" »

Protecting the environment has become a noteworthy objective for conscientious consumers. Not surprisingly, commercial producers have tapped into this market in labeling products. What does such labeling actually tell a consumer about the product? One such consumer, Ayana Hill, thought the green drop on the label of Fiji bottled water meant the product was "environmentally superior" and "endorsed by an environmental organization." She bought the product twice a week starting in 2008 paying about 15% more than for other bottled water; she would not have bought Fiji water had she known the green drop was the company's own creation and not an endorsement of the product by a neutral organization that the product was environmentally superior. She further alleged the product in fact caused no less environmental damage than its competitors did.

In Hill v. Roll International Corp. (filed May 26, 2011) 2011 DJDAR 7641, the Court of Appeal, First Appellate District, Division Two, affirmed the judgment of dismissal on sustaining of demurrer to plaintiff Hill's complaint that included allegations of violations of California's Unfair Competition Law (UCL) and False Advertising Law (FAL) (Business & Professions Code section 17200 et seq. and 17500, et seq., respectively), Consumers Legal Remedies Act (CLRA) (Civil Code section 1750 et seq.) and common law fraud. The appellate court found that no reasonable consumer would be misled to think that the green drop represented the endorsement of a separate organization or that the product was environmentally superior.

Significant to the court's analysis was the Federal Trade Commission guides that have been incorporated by the California Legislature into the statutory definition of environmental marketing claims. (See Business & Professions Code section 17580.5, subdivision (a).) Those guides require substantiation that an express or implied claim conveys to a reasonable consumer an objective quality, feature, or attribute of the product. Hill's subjective beliefs alone do not satisfy this requirement. Moreover, the context of the green-drop symbol indicates that it bears no name or recognized group logo, no trademark, and no indication other than it is a symbol of Fiji water.

As the trial court proceedings here terminated at the pleading stage, the court was satisfied that even assuming everything Hill alleged was true, she still could not prevail. So UCL and FAL plaintiff attorneys need to pay close attention that their pleadings adequately allege that asserted misrepresentations are such that the typical, reasonable consumer would be mislead, not just that the named plaintiff was mislead. And of course, be prepared to prove that. The standard is that of an "ordinary consumer within the larger population." (Lavie v.Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 510.)

Television trial dramas tend to give us the impression that the verdict in a particular case will turn on a witness blurting out an admission to a magically determinative inquiry. However the real-life experience of most trial attorneys is that a trial consists more of a mosaic of evidence from which the fact-finder endeavors to draw a result consistent with the totality of the evidence.

In Mealy v. B-Mobile, Inc. (filed May 24, 2011) 2011 DJDAR 7497, the trial judge granted a nonsuit (motion for judgment under California Civil Procedure section 631.8) against Donald Mealy on his claims of loss of consortium and emotional distress primarily based on his cross-examination answer to one such "magical" question: "So this [wife Adelaide's accident] hasn't hurt your relationship with each other, has it?" His answer: "Not a bit." This apparently convinced the trial judge to grant the motion, finding that Donald's loss of consortium must be complete rather than partial in order to justify an award of damages and that his overall satisfaction with his marital relationship negated any loss of consortium.

The Court of Appeal, Second Appellate District, Division Three, reversed this part of the judgment, ordering remand and retrial of the limited issue of determining the amount of damages for Donald's loss of consortium. A bit of background: Adelaide had suffered for years from polio which caused complete paralysis in both legs; over the years various devices had been used to transfer her, for example, from bed to wheel chair, but she still lived an active life including the raising of five children and employment as a social services counselor. In August 2008, Donald was transferring Adelaide using defendant's lift system when the apparatus' sling gave way causing Adelaide a fractured hip. At trial, Adelaide recovered $555,128 based upon the finding of defendant liable for the accident and her injuries.

Continue reading "Loss of Consortium Need Not Be Complete Nor Must Spouse's Injury Hurt Relationship To be Compensable" »