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1 Name of Preparer John H. Shaffery, J. Kevin Moore & Cecilie E. Read Firm: Poole & Shaffery, LLP City and State of Firm: Los Angeles, California; Santa Clarita, California; Orange County, California; Walnut Creek, California; San Francisco, California OVERVIEW OF THE STATE OF CALIFORNIA COURT SYSTEM A. Trial Courts 1. Superior Court a. General Jurisdiction - A court of California may exercise jurisdiction on any basis that is not inconsistent with the Constitution of California or of the United States. (Code Civ. Proc ) b. Cases filed at superior court are separated into two categories: 1) Limited Jurisdiction Civil Case The amount in controversy does not exceed $25,000. (Code Civ. Proc. 85, subd. (a), 86, subd.(a).) 2) Unlimited Jurisdiction Civil Case The amount in controversy exceeds $25,000. (Code Civ. Proc. 85, subd. (a), 86, subd. (a).) 3) The court has the discretion to deny costs when the prevailing party recovers a judgment that could have been rendered in a limited civil action. (Code Civ. Proc. 1033, subd. (a).) c. Many of California s larger superior courts have specialized divisions for different types of cases like criminal, civil, small claims, juvenile, probate, family, traffic and complex litigation. 1) Small Claims has jurisdiction over the following types of actions: a) Cases involving the recovery of money where the demand does not exceed $10,000. (Code Civ. Proc , subd., (a)(1); , subd.(a).) b) A case involving the recovery of damages resulting from an automobile accident if the amount of the demand does not exceed $7,500 and the defendant is covered by an automobile insurance policy that includes a duty to defend. (Code Civ. Proc ) 2) Juvenile Courts has exclusive original jurisdiction over: 1

2 a) All delinquent minors (under 18 years old) wherein the minor is alleged to have committed an act that would be considered criminal if he or she was an adult (Welf. & Inst. Code 602.) b) All minors who are alleged to have been neglected or abused by their parent or guardian, by either commission or omission. (Welf. & Inst. Code 300.) c) All incorrigle minors (e.g. beyond the control of parent, chronic truants, runaways, disobedient to lawful parent rules). (Welf. & Inst. Code 601.) 3) Probate Court is a court of general jurisdiction which includes, but is not limited to, decedents estate, trust of proceedings, guardianship proceedings, conservatorship proceedings and minor s compromise. 4) Family Court hears cases involving disputes over marriage or domestic partner relationships, disputes over property and children between parents and domestic partnes, violence between family, friends and acquaintances. 5) Traffic court deals with violations of traffic laws and other minor offenses. 6) A complex case is an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties and counsel. (Cal. Rules of Court, rule ) B. Appellate Courts There are two types of Appellate Courts: 1. Courts of Appeal Courts of Appeal have appellate jurisdiction when superior courts have original jurisdiction, and in certain other cases prescribed by statute. Like the Supreme Court, they have original jurisdiction in habeas corpus, mandamus, certiorari, and prohibition proceedings (Cal. Const., art. VI, 10). Cases are decided by three-judge panels. Decisions of the panels, known as opinions, are published in the California Appellate Reports if those opinions meet certain criteria for publication. In general, the opinion is published if it establishes a new rule of law, involves a legal issue of continuing public interest, criticizes existing law, or makes a significant 2

3 contribution to legal literature (Cal. Const., art. VI, 14; Cal. Rules of Court, rule (c)). There are 6 Courts of Appeal: a. First District: San Francisco b. Second District Los Angeles c. Third District: Sacramento d. Fourth District: San Diego e. Fifth District: Fresno f. Sixth District: San Jose 2. California Supreme Court The Supreme Court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition. The court also has original jurisdiction in habeas corpus proceedings (Cal.Const.,art.VI, 10). The state Constitution gives the Supreme Court the authority to review decisions of the state Courts of Appeal (Cal. Const., art. VI, 12). This reviewing power enables the Supreme Court to decide important legal questions and to maintain uniformity in the law. The court selects specific issues for review, or it may decide all the issues in a case (Cal. Const., art. VI, 12). The Constitution also directs the high court to review all cases in which a judgment of death has been pronounced by the trial court (Cal. Const., art. VI, 11). Under state law, these cases are automatically appealed directly from the trial court to the Supreme Court (Pen. Code, 1239(b)). In addition, the Supreme Court reviews the recommendations of the Commission on Judicial Performance and the State Bar of California concerning the discipline of judges and attorneys for misconduct. The only other matters coming directly to the Supreme Court are appeals from decisions of the Public Utilities Commission. PROCEDURAL A. Venue Venue rules depend on whether the action is transitory or local: a. Classification: To determine whether an action is local or transitory, the court 3

4 looks to the main relief sought. Where the main relief sought is personal, the action is transitory. Where the main relief relates to rights in real property, the action is local. (1) Transitory actions: Transitory actions are those in which the claim may have arisen anywhere. Such actions are subject to the general rule of venue, that the action be tried in the county of defendant s residence. (2) Local actions: Local actions are those dealing with land or certain other local relationships that are deemed to require local adjudication, regardless where the defendant resides. (3) Mixed actions: Some actions do not fit neatly into either category. a. Several causes joined- one local, another transitory: If the plaintiff s complaint joins several separate causes of action, one of which is local and another transitory, the transitory action controls as to venue. b. Single cause seeking both forms of relief: If plaintiff asserts only a single cause of action, but seeks different forms of relief, one local and the other transitory, venue is determined by the main relief sought. b. Venue Determined at Outset: The classification of the action as local or transitory is determined at the outset of the action from the allegations of plaintiff s original complaint. If venue is proper under the complaint as it stands at the time a motion for change is made, it remains proper notwithstanding any later amendment to the complaint. c. Transitory Actions: Except as otherwise provided by law and subject to the power of the court to transfer the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. (Code Civ. Proc. 395(a)) (1) Limitation: Defendants have a right to have the action tried in his residence unless stated otherwise by statute. (Brown v. Superior Court (1984) 37 Cal.3d at 477, 483.) (2) Limitation: Likewise, the court also has the power to transfer for the convenience of witnesses and the ends of justice. (Code Civ. Proc. 397(c).) (3) Multiple Defendants: The Code provides that venue is proper in the county where defendant or some of them reside. (Code Civ. Proc. 395(a)). In an action against several properly-joined defendants, residing in different counties, plaintiff may pick whichever of the counties he or she likes best. The other defendants have no right to compel transfer to their residence. (4) Corporate and Individual Defendant: If a corporation is joined as a codefendant, venue is proper either in the county where the individual defendant resides or at the corporation s headquarters (its residence for venue purposes) (5) Special Actions triable EITHER where defendant resides or other counties: a. Personal Injury or Death: Such actions are triable either in the county where 4

5 defendant resides OR in the county where the injury occurred (including the injury causing the death) (Code Civ. Proc. 395(a)). Decision is plaintiff s and defendant has no right to have action tried at their residence. b. Injury to Personal Property: The same venue rule applies here also. (Code Civ. Proc. 395(a)) c. Breach of Contract: Such actions are triable in the county where defendant resides OR where the contract was to be performed OR where the contract was entered into (Code Civ. Proc. 395(a)) (6) Mixed action Rule: It sometimes happens that plaintiff alleges two or more causes of action, each governed by a different venue provision; or joins two or more defendants who are subject to different venue standards. In such cases, venue must be proper as to all causes of action and defendants joined. If not, any defendant is entitled to seek a change of venue (usually, of course, to the county where any defendant resides). (Brown v. Superior Court, supra.) d. Local Actions: Local actions are triable in the county where the land is located regardless of defendant s residence. If the action involves landing extending into several counties, then venue is proper in any of those counties. (Code Civ. Proc. 392(a)(1)). (Most common local actions: recovery of possession of land, injuries to real property, partition of land, foreclosure of lien or mortgage, determination of any other right or interest in land) (1) Not jurisdictional: In most cases, the local venue rule is not jurisdictional, so courts in other counties can adjudicate if the defendant fails to raise any objection to venue there. (Exception: condemnation actions) Court may transfer: Although venue is proper only in the county where the land is located, the court has discretion to transfer the action to any other county for the convenience of witnesses and the ends of justice (Code Civ. Proc. 397(c)). B. Statute of Limitations 1. The following statutes of limitations are pertinent: a. An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another must be filed within two years from the date of injury. (Code Civ. Proc ) b. An action based on the damage or destruction of property with or without the intent to damage it must be brought within three years of the act that caused damage. (Code Civ. Proc. 338.) c. An action based on a contract that was in writing must be filed within four days from the date the contract was broken. (Code Civ. Proc. 337.) 5

6 d. An action based on a contract that was not in writing must be filed within two years from the date the contract was broken. (Code Civ. Proc. 339.) 2. Tolling the statute of limitations can be extended by one of California s tolling provisions. Code of Civil Procedure section 352, subdivision (a) provides a tolling period for any time in which the plaintiff is a minor (under the age of 18) or insane at the time the cause of action accrued. Code of Civil Procedure section provides a tolling period of no more than two years if the plaintiff is imprisoned on a criminal charge or in execution under the sentence of a criminal court for a term less than for life. 3. Savings Statute If an action is commenced within the applicable statute of limitations period and a judgment for the plaintiff is reversed on appeal for any reason other than on the merits, a new action may be commenced within one year after the reversal. (Code Civ. Proc. 355.) Borrowing Statute A person cannot bring a cause of action against a person in California if the cause of action accrued in another state and the applicable statute of limitations period for that action has expired according to that other state s law unless the cause of action is in favor of a citizen of California who has held the cause of action from the time it accrued. (Code Civ. Proc. 355.) C. Time for Filing an Answer Unless extended by a stipulation or court order, a defendant s answer is due within 30 days after service of the complaint and summons. (Code Civ. Proc (a)(3) The 30 day period is calculated by excluding the first day and including the last unless it is a weekend or holiday, then the date is excluded (Code Civ. Proc. 12) The parties may stipulate without leave of the court to one 15 day extension beyond the 30 days (CRC 3.110(d) However, In practice, the parties can stipulate to longer extensions so long as there is not a pending hearing on an order to show cause regarding service of the complaint. The Court may extend the time for filing a responsive pleading. (Cal. Rules of Court, rule 3.110(e) ). D. Dismissal Re-Filing of Suit A Plaintiff has the absolute right to voluntarily dismiss the action any time before the actual commencement of trial. (Code Civ. Proc. 581(b)(1).) Plaintiff may dismiss the entire complaint or just some part of it (e.g., one of several causes of action), or, plaintiff can dismiss as against some, but not all defendants named in the Complaint. (Code Civ. Proc. 581(c).) There are two types of dismissals, a dismissal without prejudice and a dismissal with 6

7 prejudice. As long as the dismissal is without prejudice, plaintiff can file a new lawsuit on the same claim any time before the statute of limitations runs. (Wells v. Marina City Properties, Inc., (1981), 29 Cal.3d 781, 784.) A dismissal with prejudice bars any later lawsuit on the same claim. (Boeken v. Phillip Morris USA, Inc. (2010) 48 Cal.4 th 788, 793.) Once trial commences, the dismissal must be with prejudice unless all parties consent to a dismissal without prejudice or the court so orders on a showing of good cause. (CODE CIV.PROC. 581(e).) Issues actually adjudicated in the earlier lawsuit may be entitled to collateral estoppel effect in later litigation between the same parties. It is a judgment on the merits to the extent that it adjudicates that the facts alleged do not constitute a cause of action. If, on the other hand, new or additional facts are alleged that cure the defects in the original pleading, the (dismissal) is not a bar to the subsequent action. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789.) LIABILITY A. Negligence 1. Common Law Negligence Negligence is either the failure to do something than an ordinarily prudent Person would do under the given circumstances or the doing of something than an ordinarily prudent person would not do under those circumstances. (Witkin, 6 Summary of California L., Torts 729 (9th ed.).) To support a finding of negligence, a plaintiff must show: (1) that the defendant had a duty to use due care; (2) that the defendant breached that duty; and (3) that the breach was the proximate or legal caused of the resulting injury. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292.) Everyone has a duty to use ordinary care in conducting activities from which harm might reasonably be anticipated. (Cal. Civ. Code 1714, subd. (a).) Further, a person may have a duty to act affirmatively to warn or protect others or to control the conduct of others, if a special relationship exists between the actor and either the person to be controlled or the person who needs protection. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799.) A defendant breaches its duty of care to plaintiff when the defendant s conduct falls below the standard of ordinary care of skill in the management of person or property. (Cal. Civ. Code 1714, subd. (a).) A defendant s negligent acts are the proximate cause of plaintiff s injury if they were the substantial factor in bringing about plaintiff s injury or damage. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041.) 7

8 2. Comparative Negligence Comparative negligence assigns responsibility and liability for damage in direct proportion to the fault of the person whose negligence is caused the resulting injury. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.) B. Negligence Defenses 1. Statute of Limitations: A claim based on another s negligent act must be commenced within two years from the date the cause of action accrued. (Code Civ Proc ). 2. Pure comparative negligence: Pure comparative negligence scheme effectively abolished both the last clear chance doctrine and the implied assumption of risk defense. (Li v. Yellow Cab Co. (1975), 13 Cal.3d 804.) 3. Assumption of risk: Primary assumption of risk is a complete bar to plaintiff s recovery. Applies in situations where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.( Knight v. Jewett (1992) 3 Cal.4th 296). Secondary assumption of risk merges doctrine with comparative fault scheme by requiring a trier of fact to consider relative responsibilities of parties in apportioning loss resulting from the injury. Applies in situations where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty. (Knight v. Jewett (1992) 3 Cal.4th 296.) Express assumption of risk: By assuming a known, potential risk through a written contract or other writing, the plaintiff relieves the defendant of the duty of care, and the defendant cannot be charged with negligence. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467). Note, however, that certain contractual waivers are invalid as a matter of public policy (e.g., Cal. Civ. Code 1668, 1953). 4. Imminent Peril or Emergency Situation : A person who, without negligence on his or her part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of, or the appearance of, imminent danger to himself or herself or to others, is neither expected nor required to use the same judgment and prudence that is required in the exercise of ordinary care in calmer and more deliberate moments. His or her duty is to exercise the care that an ordinarily prudent person would exercise in the same situation. If at that moment he or she does what appears to him or her to be the best thing to do, and if his or her choice and manner of action are the same as might have been followed by any ordinarily prudent person under the 8

9 same conditions, he or she does all the law requires of him or her. This is true, even though in the light of later events, it should appear that a different course would have been better and safer. (BAJI No. 4.40; CACI No. 452.) 5. Unavoidable accident: Also generally abolished as a defense in California, since it is encompassed within a defendant s general denial of negligence and proximate causation. Butigan v. Yellow Cab Co (1958)., 49 Cal.2d 652. However, there is an exception in the special situation where it may be necessary to explain the meaning of unavoidable accident as, for example, in a prosecution for violation of a section of the Vehicle Code (e.g., Veh. C ), making it a misdemeanor to drive certain vehicles for more than a limited number of hours but providing that the section does not apply in any case of casualty or unavoidable accident or an act of God. 6. Workers Compensation Exclusive Remedy; Workers compensation provides a plaintiff s exclusive remedy, precluding claims against the plaintiff s employer or a co-worker, when the plaintiff was performing service growing out of and incidental to his or her employment and was acting within the course of his or her employment. In some situations an injured employee may maintain a civil action against his or her employer such as the following: a) Physical assault by employer (Cal. Labor Code 3602(b)(1); see Hart v. National Mortg. & Land Co. (1987) 189 CA3d 1420, 1430.) b) Employer s fraudulent concealment of injury aggravates employee s injury: A damages action lies where the employee s injury is aggravated by the employer s fraudulent concealment of the existence of the injury and its connection it the employment (e.g. asbestosis cases). The employer s liability is limited, to damages proximately caused by the aggravation. The employer bears the burden of proof respecting apportionment of damages between the injury and any subsequent aggravation. (Cal. Labor Code 3602(b)(2); see Foster v. Xerox Corp. (1985) 40 C3d 306,312.) c) Product liability cases: A damages action lies against the employer where the employer s defective product is sold to a third person who thereafter provided the product for the employee s use. (Cal. Labor Code 3602(b)(3); see Behrens v. Fayette Mfg. Co. (1992) 4 CA4th 1567, d) Employer is uninsured: If an employer lacks workers compensation insurance, they will be exposed to possible actions for civil damages (See Cal. Labor Code 3706; Hernandez v. Chavez Roofing, Inc. (1991) 235 CA3d 1092, ) 7. Fireman s Rule. Bars a firefighter or police officer from recovering for injuries resulting from a person's negligence or recklessness in causing the fire or other emergency that provides 9

10 the reason for the firefighter's or police officer s presence. (Lipson v. Superior Court (1982) 31 Cal.3d 362.) 8. Limitation on recovery by felon: A plaintiff may not recover damages based on negligence if the plaintiff s injuries were in any way proximately caused by the plaintiff s commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony. (Cal. Civ. Code ) Limitation on recovery. A plaintiff cannot recover noneconomic damages arising out of the operation or use of a motor vehicle if: - The person was convicted of driving under the influence of alcohol or drugs at the time of the accident; - The person owned a vehicle involved in the accident and that person s vehicle was not properly insured, unless the person was injured by a motorist operating a vehicle while under the influence of alcohol or drugs; or - The person was the operator of a vehicle involved in the accident and the operator cannot establish requisite financial responsibility. (Cal. Civ. Code ). C. Gross Negligence, Reckless, Willful and Wanton Conduct 1. Intentional Torts In general, a plaintiff's total damages are not recoverable to the extent his or her own negligence contributed to the injuries. Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804, However, plaintiff s contributory negligence is no defense to an action for an intentional tort when a defendant's negligent conduct can be described as "willful negligence," "wanton and willful misconduct," "gross negligence," or "wanton and reckless misconduct, and invokes the legal consequences of an intentional tort. (Mahoney v. Corralejo (1974) 36 Cal. App.3d 966). 2. Gross Negligence means, the want of even scant care or an extreme departure from the ordinary standard of conduct. Meter v. Bent Construction Co (1956) 46 Cal.2d 588, 594. The term has also been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequence. (People v. Soledad (1987) 190 Cal.App.3d 74, 80). 3. Willful Conduct Three essential elements must be present t: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (Morgan v. Southern Pac. Trans. Co. (1974) 37 Cal.App.3d 1006, 1012). 4. Recklessness refers to a subjective state of culpability greater than simple negligence, which 10

11 has been described as a deliberate disregard of the high degree of probability that an injury will occur. Recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it. ( Delaney v. Baker (1999) 20 Cal.4th 23; Towns v. Davidson (2007) 147 Cal.App.4th 461; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72). Willful, wanton or reckless, are often interchangeable because the terms essentially mean the same thing-- that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689). 5. Punitive Damages In the context of punitive damages, willful and wanton misconduct is relevant because such conduct would support an award for punitives, and is a standard greater than recklessness or gross negligence. (See, Taylor v. Superior Court (Stille) (1979) 24 Cal.3d 890). A jury may award punitive damages only if plaintiff has proven by clear and convincing evidence that defendant acted with oppression, fraud or malice (Cal. Civ. Code 3294(a). Malice is defined as despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. (Cal. Civ. Code 3294(c)(1) (emphasis added). And an intentional tort, or conduct intended by defendant to cause injury to plaintiff shows malice, thereby warranting punitive damages. In contrast, cases of ordinary negligence and evidence of gross negligence or recklessness do not amount to malice and therefore, does not support a punitive award. (Lackner v. North (2006) 135 Cal4th 1188, ; Bell v. Sharp Cabrillo Hosp. (1989) 212 Cal.3d 1034, 1044; Flyer s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.3d 1149, 1155). Strict product liability among the defendants is joint and several: i.e., any defendant in the stream of commerce (and causally connected to the product defect) is responsible for all of plaintiff s damages attributable to the defective product. The burden effectively shifts to the particular defendant to apportion liability by seeking comparative indemnity from others in the marketing chain. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262; Bailey v. Safeway, Inc. (2011) 199 Cal.App.4 th 206, 212; Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4 th 1541, ) 11

12 Proposition 51 imposes several liability for plaintiff s noneconomic damages in actions based upon principles of comparative fault. (Cal. Civ. Code ) 1 The strict liability of a retailer, distributor, or other nonnegligent participant in the marketing chain is based not on fault but on the social policy of assessing damages against those who profit from marketing the defective product. Because it is imputed by law, strict liability for injury caused by a single product is not affected by Prop. 51. (Bostick v. Flex Equipment Co., Inc. (2007) Cal.App.4 th 80, 93-95; Wimberly v. Derby Cylce Corp. (1997) 56 Cal.App.4 th 618, ) On the other hand, where multiple products cause plaintiff s injury and evidence shows a particular product responsible for only part of the injury, Prop. 51 requires noneconomic damages apportionment of the responsibility for the part to that product s chain of distribution. But as in the case of injury caused by a single product, defendants who are in the chain of distribution of the specific defective product remain jointly and severally liable for all harm caused by that product. (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App. 4 th 1178, ) D. Negligent Hiring and Retention California recognizes the tort of negligent hiring or supervision, where a principal can be held liable for the acts of his agents when the principal is either negligent or reckless in the hiring or supervision of the agent, even without actual notice or specific warning. Deutsch v. Masonic Homes of California, Inc. (2008) 164 Cal.App.4th 748. Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics that might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employee. (Mendoza v. City of Los Angeles (1998) 66 Cal.App. 4th 1333). Thus, an employer can be held liable for negligent hiring if the employer knows the employee is unfit, or has reason to believe the employee is unfit or fails to use reasonable care to discover the employee's unfitness before hiring the person. (Juarez v. Boy Scouts of America (2000) 81 Cal.App.4th 377; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828). A person conducting an activity through servants or other agents is subject to liability for harm resulting from his or her conduct if he or she is negligent or reckless in the employment of improper persons or instrumentalities in work involving a risk of harm to others. Negligence liability will also be imposed if the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. (Philips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133). The substantive requirements are the basic elements of a cause of action for negligence: 1 In California, a ballot proposition is a proposed law that is submitted to the electorate for approval in a direct vote. 12

13 (1) the existence of a legal duty to use due care; (2) breach of that duty; and (3) the breach as a proximate cause of the plaintiff's injury. (Federico v. Sup.Ct. (Jenry G.) (1997) 59 Cal.App.4th 1207, ). E. Negligent Entrustment California Vehicle Code section 14606(a) provides, No person shall employ or hire any person to drive a motor vehicle nor shall he knowingly permit or authorize the driving or a motor vehicle, owned by him or her under his or her control, upon the highways by any person unless the person is then licensed for the appropriate class of vehicle. Further, California law holds liable for injury and damages, any person who entrusts a motor vehicle to someone who they know, or from circumstances should know is incompetent or unfit to drive. (See Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal. App. 4 th 1055). Similarly, even rental car companies may be held liable for negligently entrusting motor vehicles to customers but the measure is what a prudent person would have done under similar circumstances. (See Osborn v. Hertz Corp. (1988) 205 Cal. App. 3d 703.) However, generally it has been held that the owner of an automobile is under no duty to third persons who may be injured to keep a motor vehicle out of the hands of a third party, unless they knew or should have known about the driver s incompetence. (See Richards v. Stanley (1954) 43 Cal. 2d 60.) F. Dram Shop Under California law, alcohol-related accidents are generally regarded as being caused by the consumption of alcohol, rather than the sale of alcohol. California Civil Code section 1714 (c) codifies this law stating, no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages. The one exception to this rule is for those who serve to a person they know or should know is under the age of 21. G. Joint and Several Liability Strict product liability among the defendants is joint and several: i.e., any defendant in the stream of commerce (and causally connected to the product defect) is responsible for all of plaintiff s damages attributable to the defective product. The burden effectively shifts to the particular defendant to apportion liability by seeking comparative indemnity from others in the marketing chain. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262; Bailey v. Safeway, Inc. (2011) 199 Cal.App.4 th 206, 212; Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4 th 1541, ) Proposition 51 imposes several liability for plaintiff s noneconomic damages in actions based upon principles of comparative fault. (Cal. Civ. Code ) The strict liability of a retailer, distributor, or other nonnegligent participant in the marketing chain is based not on fault but on the social policy of assessing damages against those who profit from marketing the 13

14 defective product. Because it is imputed by law, strict liability for injury caused by a single product is not affected by Prop. 51. (Bostick v. Flex Equipment Co., Inc. (2007) Cal.App.4 th 80, 93-95; Wimberly v. Derby Cylce Corp. (1997) 56 Cal.App.4 th 618, ) On the other hand, where multiple products cause plaintiff s injury and evidence shows a particular product responsible for only part of the injury, Prop. 51 requires noneconomic damages apportionment of the responsibility for the part to that product s chain of distribution. But as in the case of injury caused by a single product, defendants who are in the chain of distribution of the specific defective product remain jointly and severally liable for all harm caused by that product. (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App. 4 th 1178, ) H. Wrongful Death and/or Survival Actions Wrongful Death: California Code of Civil Procedure section establishes a separate statutory cause of action in favor of specified heirs of a person who dies as a result of the wrongful act or neglect of another. Under a wrongful death cause of action, the specified heirs are entitled to recover damages on their own behalf for the loss they sustained by reason of bodily injury decedent s death. (See Corder v. Corder (2007) 41 C4th 644, 651; Fitch v. Select Products Co. (2005) 36 C4th 812, 819.) Survival Action: A survival action is a wrongful death claim that is separate and distinct from the victim s action which survives to the estate of the decedent. (Code Civ. Proc ) Death of Plaintiff During Pending Action: If an action has been commenced by the living victim who then dies, the personal representative or successor in interest may move to substitute parties (Code Civ. Proc , ) The substitute party must obtain an order either through noticed motion or ex parte motion. (Code Civ. Proc ). Death of Plaintiff Prior to Bringing Action: If a person entitled to bring action passes away before the applicable limitations period and the cause of action survives the cause of action may be brought either 6 months after the person s death or the limitations period, whichever is later. (Code Civ. Proc ) I. Vicarious Liability Vicarious liability is where a person actually acts through another to accomplish his or 14

15 her ends, and where the law will or should impose such vicarious liability. (King v. Ladyman (1978) 81 Cal.App.3d 837). The right of control over the person actively at fault is a test of the required relationship, but is not itself the justification for imposing liability. (Id) The doctrine of respondent superior imposes vicarious liability on an employer for the torts of an employee acting within the scope of his or her employment, whether or not the employer is negligent or has control over the employee. (Baptist v. Robinson (2006) 143 Cal.App.4th 151). The common law theory that a principal is responsible to third parties for the negligence of an agent in the transaction of the business of the agency as reflected in Civil Code However, the injured party first bears the burden of establishing that an employment relationship existed between the defendant employer and the wrongdoer, and that the employee's tortious act was committed within the scope of the employment relationship. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962). 1) Agency A principal-agent relationship exists where one person, the agent, is empowered to act on behalf of another, the principal, and to bind the principal to one or more transactions with one or more third persons, exercising a degree of discretion in effecting the purpose of the principal. (Cal. Civ. Code 2295; Workman v. San Diego (1968) 267 Cal.App.2d 36). An agency is either actual or ostensible an agency is actual when the agent is really employed by the principal; and an agency is ostensible when the principal intentionally, or by lack of ordinary care, causes a third person to believe another is the principal's agent who is not really employed by the principal. (Cal. Civ. Code 2299, 2300). a. Liability Unless required by or under the authority of law to employ a particular agent, a principal is responsible to third persons for the negligence of the agent in the transaction of the business of the agency. This includes wrongful acts committed by the agent in and as a part of the transaction of the agency business, and for the agent's willful omission to fulfill the obligations of the principal. (Cal. Civ. Code 2338). However, a principal is not responsible for wrongs committed outside the transaction of the agency business unless he or she has authorized or ratified them, even though those wrongs are committed while the agent is engaged in the principal's service. (Cal. Civ. Code 2339). Ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where oral authorization would suffice, by accepting or retaining the benefit of the act, with notice of it. (Cal. Civ. Code 2310). 15

16 b. Right of Control The principal's right of control over the agent determines if an agent's act was committed in the transaction of the business of the agency. Control of the agent by the principal is required before the principal may be found vicariously liable for the acts of the agent. (Malloy v. Fong (1951) 37 Cal.2d 356). Without control by a principal, no agency will exist, the wrongdoer will be found to be an independent contractor, and the principal will not be vicariously liable. (Flores v. Brown (1952) 39 Cal.2d 622). However, where an agency relationship exists but the principal does not control the agent, there is authority limiting the principal's liability for the torts of the agent. Under this view, the court held in the context of ostensible agency and ostensible authority that a principal is not liable for physical harm caused by the negligent physical conduct of a nonemployee agent even during the performance of the principal's business. The rationale is that the principal does not have the right of control over the details of the nonemployee agent's conduct. (Van Den Eikhof v. Hocker (1978) 87 Cal.App.3d 900 (citing, Restatement 2d, Agency 250)). 2) Independent Contractor An "independent contractor" is a person who renders service in the course of an independent employment or occupation, under the control of a principal as to the result of the work only and not as to the means by which the result is accomplished. (Cal. Labor Code 3353). As a general rule, a hirer of an independent contractor is not liable for physical harm caused to others by the act or omission of the independent contractor. (J.L. v. Children s Institute, Inc. (2009) 177 Cal.App.4th 388; Bowman v. Wyatt (2010) 186 Cal.App.4th 286; Benson v. Superior Court (2010) 185 Cal.App.4th 1179). However, the non-liability of employers for the torts of independent contractors is now the exception and the so-called "general rule" will be followed only where no good reason is found for departing from it. (See, Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734 (stating that exceptions have almost emasculated general rule but citing examples where rule has been followed); American States Ins. Co. v. Progressive Cas. Ins. Co. (2009) 180 Cal.App.4th 18 (holding that the exceptions to the general rule of non-liability are numerous)). Although a person cannot be an independent contractor and an employee to the same principal at the same time, the law is somewhat unclear when it comes to distinguishing between agents and independent contractors. Some cases state that agent and independent contractor are not necessarily exclusive legal categories. Under this view, a person can simultaneously be both an agent and an independent contractor. (Mottola v. R.L. Kautz & Co. (1988) 199 Cal.App.3d 98; Van Den Eikof, supra, 87 Cal.App.3d at 900). Cases that treat agents and employees as 16

17 synonymous terms and apply the standard of "control" for purposes of establishing vicarious liability of principals as well as employers, treat agents and independent contractors as mutually exclusive legal categories. (Rogeres v. Whitson (1964) 228 Cal.App.2d 662). a) Exception Peculiar Risk Doctrine One well recognized exception to the general rule that one who employs an independent contractor is not liable for injuries caused by the negligence of the contractor is found in the peculiar risk doctrine. Under this doctrine, one who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to others by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise. (Privette v. Superior Court (1993) 5 Cal.4th 689). b) Non-Delegable Duty In addition, where the law imposes a definite, affirmative duty on a person by reason of a relationship with others, whether as an owner or proprietor of land or chattels or in some other capacity, such persons cannot escape liability for a failure to perform the duty imposed by entrusting it to an independent contractor. It is immaterial whether the duty regarded as nondelegable is imposed by statute, charter, or common law. (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245). J. Exclusivity of Workers Compensation Subject to limited exceptions, workers' compensation is the only remedy available to injured employees and their dependents against the employer or against any fellow employee responsible for physical or mental injuries or death arising out of and in the course of employment. (See, Cal. Labor Code , 5300; Shoemaker v. Myers (1990) 52 Cal.3d 1, 18). 1) Standard Workers compensation exclusivity applies only to claims for work-related death or physical, mental, or emotional injuries. Claims for purely economic loss, property, or contract damages incurred independent of any workplace injury are exempt from workers compensation exclusivity. Also, claims for emotional distress caused by the employer's conduct in employment actions involving termination, promotions, demotions, criticism of work practices, negotiations as to grievances, etc., are deemed part of the normal risk of employment and hence subject to the exclusive remedy provisions of the workers' compensation law. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, ). 17

18 To be within the scope of employment, the incident giving rise to the injury must be an outgrowth of the employment, the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer's enterprise. (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1008). The legal analysis must also examine whether the acts or motives giving rise to the injury constitute a risk reasonably encompassed within the compensation bargain. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, supra, 24 Cal.4th at ). Further, the Workers Compensation Act is liberally construed in the employee's favor. (Department of Rehabilitation v. WCAB (2003) 30 Cal.4th 1281, 1290). 2) Applied to Co-Employees With respect to workplace injuries caused by coworkers, workers' compensation is generally the exclusive remedy as well. The exclusivity rule, however, does not protect coworkers who commit: (1) a willful and unprovoked physical act of aggression with intent to injure within; or (2) when the injury or death is proximately caused by the intoxication of the other employee. (Labor Code 3601(a); see, Torres v. Parkhouse Tire Service, Inc., supra, 26 Cal.4th 995; Fretland v. County of Humboldt (1999) 69Cal.App.4th 1478, ). The employer will not be held liable for damages awarded against or for a liability incurred by such employee. Labor Code 3601(b). The employer may, however, be civilly liable for damages if it ratifies the coworker's tortious acts and thereby becomes a joint participant in the assaultive conduct. (See, Fretland v. County of Humboldt (1999) 69Cal.App.4th 1478, ). 3) Exceptions to the Exclusive Remedy Rule In some situations an injured employee may maintain a civil action against his or her employer such as the following: a) Physical assault by employer (Cal. Labor Code 3602(b)(1); see Hart v. National Mortg. & Land Co. (1987) 189 CA3d 1420, 1430.) b) Employer s fraudulent concealment of injury aggravates employee s injury: A damages action lies where the employee s injury is aggravated by the employer s fraudulent concealment of the existence o the injury and its connection it the employment (e.g. asbestosis cases). The employer s liability is limited, to damages proximately caused by the aggravation. The employer bears the burden of proof respecting apportionment of damages between the injury and any subsequent aggravation. (Cal. Labor Code 3602(b)(2); see Foster v. Xerox Corp. (1985) 40 C3d 306,312.) 18

19 c) Product liability cases: A damages action lies against the employer where the employer s defective product is sold to a third person who thereafter provided the product for the employee s use. (Cal. Labor Code 3602(b)(3); see Behrens v. Fayette Mfg. Co. (1992) 4 CA4th 1567, d) Employer is uninsured: If an employer lacks workers compensation insurance, they will be exposed to possible actions for civil damages (See Cal. Labor Code 3706; Hernandez v. Chavez Roofing, Inc. (1991) 235 CA3d 1092, ) DAMAGES A. Statutory Caps on Damages California does not have a general statutory cap on damages. The only exception to this general rule applies to actions for professional negligence against a medical care provider, for which noneconomic damages are capped at $250,000. (Cal. Civ. Code ) (Also commonly referred to as MICRA.) B. Compensatory Damages for Bodily Injury Every person who suffers loss or harm in person or property from the unlawful act or omission of another may recover monetary damages for that detriment from the person at fault. (Cal.Civ. Code 3281, 3282). Any party injured by the breach of an obligation not arising from contract is entitled to an amount in compensation for all the detriment proximately caused by the injury, whether it could have been anticipated or not. (Cal. Civil Code 3333). As the Supreme Court observed in Turpin v. Sortini (1982) 31 Cal.3d 220, a plaintiff's remedy in tort is compensatory in nature and damages are generally intended not to punish a negligent defendant but to restore an injured person as nearly as possible to the position he or she would have been in had the wrong not been done. Id. at 232. Compensatory damages for bodily injury or death are for injury caused by pain, suffering, inconvenience, loss of wages or other compensation and for expenditures by the insured for treatment of injuries received. (California State Auto. Ass n Inter-Ins. Bureau v. Carter (1985) 164 CA3d 257, 261). Once a defendant's liability for a tort has been established, the plaintiff is entitled to recover for any loss reasonably likely to occur in the future, as well as any loss incurred prior to the trial. (Cal. Civ. Code 3283). a. Non-Economic Damages Non-economic damages means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation (Cal. Civ. Code (b)(2)) b. Economic Damages Economic damages means objectively verifiable monetary losses including medical 19

20 expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities. (Cal. Civ. Code (b)(1)). c. Considerations for Personal Injury Cases In assessing general damages in a personal injury action, the jury should consider all relevant circumstances, including the age and sex of the injured person, his physical condition before and after the injury, the extent, severity and duration of bodily and mental suffering caused by the injury, and any impairment of earning capacity resulting therefrom. (Roedder v. Rowley (1946) 28 Cal.2d 820, 822). C. Collateral Source Generally, under the collateral source rule, defendant s liability is not reduced by claimant s medical expense recoveries from claimant s own insurance carriers (but see Section of the Civil Code regarding professional negligence actions against health care providers and Section 985 of the Government Code regarding government entity defendant s right to verdict adjustment to reflect collateral source benefits. Therefore, claimant s insurance policies should be reviewed for applicable medical pay coverage. A Plaintiff s reasonable compensation for past medical expenses may not exceed the amount actually paid or incurred (whether by plaintiff directly or by private insurance, Medi-Cal, plaintiff s employer or any collateral source. ) Where plaintiff s medical insurer negotiates an amount lower than the medical provider s ordinary rates, plaintiff may not recover the negotiated amount differential. This is so even if the full or ordinary rates arguable represent the reasonable value of the medical services. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4 th 541, ) Where the medical provider has, by prior agreement, accepted a discounted amount as full payment, evidence of the full (undiscounted) amount is not itself relevant on the issue of past medical expenses. However, the Howell case left open the possibility that it might be relevant or admissible or other issues, such as noneconomic damages (pain and suffering) or future medical expenses. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4 th 541, 567.) D. Pre-Judgment/Post Judgment Interest Pre-Judgment Interest The following are the bases for pre-judgment interest: 1) Liquidated claims: persons entitled to recover damages certain or capable of being made certain by calculation are entitled to interest from the time the right to recover arises. (Cal. Civ. Code 3287(a); see Cortez v. Purolator Air Filtration Products Co. (2000) 23 C4th 163,

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