By Kevin Calcagnie

December 2007

The following are summaries of recently published decisions which may be of interest to consumer attorneys. Official cites are used where available at the time of publication. As with any new case, subsequent histories should be consulted for changes such as depublication or review by the California Supreme Court.

WRONGFUL DEATH - ONE ACTION RULE
Romero v. Pacific Gas & Electric Company, (3rd District, October 18, 2007) 156 Cal.App.4^th 211, 67 Cal.Rptr.3d 236, 07 Cal. Daily Op. Serv. 12,387, 2007 Daily Journal D.A.R. 15957

The father of a boy who was killed when an open trench in which he was playing collapsed, filed a wrongful death against Pacific Gas & Electric Company. PG&E demurred to the father's complaint, arguing that it violated the one action rule, because the decedent's mother had previously filed a wrongful death case against the utility, and had settled the action in its entirety and dismissed it with prejudice. Although the father was named as a defendant in the mother's suit, he was never served, and did not participate in the mother's action or receive any proceeds from the settlement.

The trial court sustained the demurrer and dismissed the action, but the court of appeal reversed, holding that the defendant was not entitled to the protection of the one action rule:

PG & E takes the position that it could infer Romero was properly joined from the fact that he was named a defendant pursuant to section 382. We disagree. No inference of proper service necessarily can be drawn from the mere fact that a party is named as a defendant, and service could not have been alleged in the complaint because it would have occurred subsequent to the filing of the complaint. A defendant is entitled to rely on allegations in a wrongful death complaint that the plaintiffs are the only heirs. (Salmon v. Rathjens, supra, 152 Cal. at p. 295, 92 P. 733.) However, no inference of proper service follows from the mere naming of a defendant under section 382. Instead, the burden is on the tortfeasor wishing to avail itself of the one action rule to cause a known heir to be joined in the action.

. . .

More importantly, since PG & E was a party to the action it would have been a simple matter for it to determine whether Romero had been served with the summons and complaint by reviewing the court's file. As indicated in Valdez v. Smith, supra, the burden is on the tortfeasor wishing to avail itself of the one action rule to cause a known heir to be joined in the action. (166 Cal.App.3d at p. 728, 212 Cal.Rptr. 638 ["Defendants could have made a timely objection and had the action abated or at least could have made [the heir] a party to the action.... [T]he failure of defendants to do so should not estop the plaintiff from bringing his rightful claim for wrongful death."].) Where a tortfeasor wishes to avail itself of the protections of the one action rule, the burden is on the tortfeasor to ascertain whether the heirs named as defendants have been properly joined.

WRONGFUL LIFE-ABORTION ADVICE POLICY
Barragan v. Lopez, (4th District, October 18, 2007) --- Cal.Rptr.3d ----, 2007 WL 3027398 (Cal.App.4^th Dist.)

Twins who were born with cerebral palsy filed an action through their guardian ad litem against their mother's obstetrician/gynecologist, claiming that the defendant should have advised their mother that she had the right to abort her pregnancy. The defendant physician moved for summary judgment arguing that during the period when the mother could have legally terminated the pregnancy before the plaintiffs became viable fetuses, there was no evidence of any significant fetal anomaly or endangerment of the mother's life by continuing the pregnancy, and therefore, the defendant did not owe a duty to the mother to advise her of the right to an abortion.

In opposition, the plaintiffs argued that the defendant had violated a policy of the American College of Obstetrician and Gynecologists which provides that a pregnant woman should be fully informed about all options including an abortion, and that if an abortion is to be performed, it is to be performed safely and as early as possible. The trial court granted summary judgment and the court of appeal affirmed, finding that the plaintiffs had failed to raise a triable issue of fact on the issue of duty:

An infant may maintain a "wrongful life" action for special damages when the defendant has "failed to diagnose and warn the parents of the probability that an infant will be born with a hereditary ailment or disability and the infant is in fact born with that ailment."(Foy v. Greenblott (1983) 141 Cal.App.3d 1, 14, 190 Cal.Rptr. 84(Foy ).)

Plaintiffs in the instant case are unable to establish both of these elements. There is no evidence of any basis upon which Dr. Lopez should have discouraged and prevented mother's pregnancy. Prior to plaintiffs becoming viable fetuses, there is no evidence plaintiffs had "any hereditary trait or other physiological condition which should have led respondents to predict that a child conceived by her would be born impaired."

. . .

In opposing Dr. Lopez's summary judgment motion, plaintiffs relied on the declaration of Dr. Williams, board certified in obstetrics and gynecology and in maternal/fetal medicine. Dr. Williams stated in his declaration that women, "as with Ms. Munguia, are at greater risk for complications (prematurity, etc.) when their last pregnancy was more than 120 months earlier (five years)." According to Dr. Williams, this was an additional risk factor which Dr. Lopez did not mention.

. . .

Dr. Williams concluded in his declaration that under the accepted standard of care, as manifested in the ACOG abortion policy, Dr. Lopez should have raised the option of abortion, particularly in light of mother's vaginal bleeding on February 27, 2001, and based on her clinical history, emotional instability, and "repeat expressions of not wanting to complete the pregnancy, ..." According to Dr. Williams, Dr. Lopez's failure to do so constituted care below acceptable standards of obstetrical care, and had Dr. Lopez advised mother of her right to an abortion, she would have accepted the option.

. . .

The ACOB abortion policy relied on by Williams is also of little, if any, import here since it concerns what a physician should discuss when providing informed consent to a patient considering terminating her pregnancy. The ACOB abortion policy does not state that pursuant to applicable medical standards Dr. Lopez was required to advise mother of the right to an abortion when there was no indication plaintiffs had, or might have, significant physical defects or abnormalities.

Because Dr. Williams's declaration is not founded on anything that would support the conclusion that Dr. Lopez had a duty to advise mother of her right to an abortion, plaintiffs failed to refute that Dr. Lopez had no such duty.

PUBLIC ENTITIES-MANDATORY DUTIES
De Villers v. County of San Diego, (4th District, October 19, 2007) 156 Cal.App. 4th 238, 67 Cal.Rptr.3d 253, 07 Cal. Daily Op. Serv. 12, 396, 2007 Daily Journal D.A.R. 16,001

The heirs of a man who was poisoned by his wife, filed a wrongful death action against the wife's employer, the County of San Diego. The plaintiffs alleged that the decedent's wife, who had worked at the County's Office of the Medical Examiner, had murdered her husband by causing him to ingest toxic drugs which she had stolen from her place of employment. The plaintiffs further alleged, inter alia, that the County was liable under Government Code Section 815.6 for breaching a mandatory duty under federal regulations to take effective steps to safeguard against the theft and abuse of drugs in its possession.

A jury returned a verdict in favor of the plaintiffs but the court of appeal reversed, finding that the County's obligations under federal regulations did not give rise to a duty of care:

The provisions of 21 Code of Federal Regulations part 1301.71(a) require a registrant to provide "effective" controls to "guard against" theft of controlled substances, but does not impose a mandatory obligation to guarantee no materials will ever be stolen.

We conclude the Code of Federal Regulations does not impose the type of mandatory obligation contemplated by section 815.6. Although the Regulations set goals to which the registrant must aspire, it grants latitude on how best to achieve those goals and does not describe discrete acts that must be performed.

. . .

Plaintiffs have not produced any relevant legislative history demonstrating that the particular injury suffered-the danger that stolen drugs would be used to commit premeditated murder-is " 'one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty.' "

. . .

The courts have repeatedly rejected the contention that a plaintiff's ability to articulate some causal nexus between the broad protective purposes of the mandatory duty and the specific injury suffered is sufficient to show the particular injury suffered was within the intended ambit of the duty.

. . .

[T]he primary purpose of the antitheft provisions of the Code of Federal Regulations appears to be to prevent drug users from obtaining and ingesting illegal substances. Although this legislative purpose may collaterally confer some benefit on the families, friends, coworkers and the broader society-by diminishing the number of persons whose drug addiction might eventually lead them to commit antisocial acts-we believe that benefit is remote from and incidental to the primary protective purpose of the statute.

. . .

Plaintiffs cite neither pertinent legislative history nor analogous case law suggesting that a measure designed to deter drug theft encompasses, as " 'one of the consequences which the [enacting body] sought to prevent through imposing the alleged mandatory duty' "(Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at p. 939, 80 Cal.Rptr.2d 811, 968 P.2d 522), the prevention of premeditated murder by drug thieves. We conclude plaintiffs' claim under section 815.6 fails for the additional reason that the enactment was not designed to protect against the particular injury for which plaintiffs seek recovery.

WORKERS' COMPENSATION-COMMERCIAL TRAVELER DOCTRINE
City of Los Angeles v. Workers' Compensation Appeals Board, (2nd District, Filed 10/25/07; pub. Order 11/26/07 --- Cal.Rptr.3d----, 2007 WL 4157577

An accountant for the City of Los Angeles who was attending a certified public accountant convention suffered fatal injuries when he fell and struck his head while walking back to his hotel room after having lunch with his wife. A workers' compensation judge held that the decedent's death was work-related and awarded death benefits to the wife, finding that the death arose out of and in the course of the decedent's employment. The judge reasoned that the City encouraged its accountants to maintain a CPA license through a salary bonus, and that the decedent would not have been in Atlantic City but for the work-related need to maintain his license, and that therefore his death was work-related based upon commercial traveler principles.

A majority of commissioners agreed with WDJ but the court of appeal reversed, holding that the commercial traveler doctrine was inapplicable under the circumstances, and that the decedent was not in the course of his employment at the time of his injury:

An employee is regarded as acting within the course of the employment during the entire period of his travel upon his employer's business. (Dalgleish v. Holt (1952) 108 Cal.App.2d 561, 566.) Even an injury that occurs when the worker is engaged in a personal activity is compensable if the activity was a reasonable expectation of employment. The commercial traveler doctrine has also been extended to an employee's travel on any business matter whether the employee is in sales or not.

. . .

Here, the WCJ reasoned that DeLeon was in the course of employment because City encouraged taking CPA courses by paying a bonus and City should have foreseen DeLeon would have to travel to obtain the necessary classes.

The WCJ gave undue weight to the bonus. City did not require DeLeon or any accountants to have a CPA license. Traveling to attend a convention for CPA credit was not expressly or impliedly authorized by the employment contract. City did not reimburse CPA coursework but did reimburse the continuing education of other professionals in its employ. DeLeon had never received reimbursement. City did not benefit from CPA licensure and provided the training considered necessary for its accountants. The bonus was a reward for going above and beyond the requirements of the employment.

. . .

City only motivated or encouraged CPA licensure as a personal achievement by bonus salary not as an incentive to improve an accountant's ability to do his job. City derived no benefit from the CPA license.

. . .

City did not request or invite DeLeon to obtain a CPA license. City did not request or invite DeLeon to travel. Not only was the trip not a special mission, travel to attend a class was not an ordinary commute either. The trip was voluntary and personal.

. . .

City did not require or recommend obtaining a CPA license, did not reimburse for classes taken to obtain such a license and offered necessary training for its accountants. Less than 13 percent of City's accountants maintained CPA licenses. Clearly, the CPA license was not contemplated by the contract of employment, did not benefit City by making DeLeon perform his assigned tasks more effectively and was appropriately labeled a personal achievement bonus.

CHILDHOOD SEXUAL ABUSE-STATUTE OF LIMITATIONS
Doe v. City of Los Angeles, (California Supreme Court, November 1, 2007) 42 Cal.4th 531, 169 P.3d 559, 67 Cal.Rptr.3d 330, 07 Cal. Daily Op. Serv. 12,744

Two men in their forties filed a suit against the City of Los Angeles and the Boy Scouts of America, alleging that they had been sexually abused by a police officer while they were participants in the Los Angeles Explorer Scout program in the 1970's. Although C.C.P. Section 340.1 requires that such actions be brought before the victim's 26th birthday, the statute of limitations is extended in actions against non-perpetrators where the plaintiff can show that the defendant knew or had reason to know of unlawful sexual conduct by an employee, volunteer, representative or agent, and failed to take reasonable steps to avoid it.

The trial court sustained the defendants' demurrers and dismissed the actions, finding that the plaintiffs had failed to adequately plead that the defendants knew or had reason to know or were otherwise on notice of any unlawful sexual conduct. The court of appeal affirmed and the California Supreme Court affirmed the judgment of the court of appeal, holding that the allegations made by the plaintiffs did not bring the case within the statutory exception:

Nothing in the foregoing discussion, however, assists these plaintiffs because no degree of broad construction of their pleadings can supply what is missing from them-allegations that defendants knew, had reason to know, or were otherwise on notice of past incidents of unlawful sexual conduct by [Officer] Kalish with minors that triggered the duty on defendant's part to take preventive measure to avoid acts of unlawful sexual conduct by Kalish in the future.

. . .

First, there are numerous allegations to the effect that defendants inadequately supervised the Explorer Scout program at Devonshire station during the time period that plaintiffs participated in the program and, as a result, it was staffed by unqualified officers who engaged in improper activity with the participants. Second, there are general allegations that the BSA was aware of past incidents involving sexual molestation of scouts by scout leaders along with more specific allegations that, prior to Kalish's molestation of plaintiffs, defendants were aware of incidents of sexual misconduct by other officers involved in the Explorer Scout programs at the Hollywood and Devonshire stations. Third, there are general allegations that BSA was aware that sexual predators were active in its programs.

. . .

Plaintiffs' argument impliedly concedes what is plain on the face of their complaints: that their complaints fail to allege that defendants had knowledge of Kalish's past unlawful sexual conduct with minors, which is the prerequisite for imposing upon these defendants liability for his subsequent sexual abuse of plaintiffs. That plaintiffs had knowledge or notice of misconduct by Kalish that created a risk of sexual exploitation is not enough under the express terms of the statute. In the absence of sufficient allegations of knowledge or notice on the part of these defendants, their demurrers were correctly sustained and the actions against them properly dismissed.

ASSUMPTION OF THE RISK-PERSONAL WATERCRAFT PASSENGERS
Truong v. Nguyen, (6th District, November 5, 2007) 156 Cal.App.4^th 865, 67 Cal.Rptr.3d 675

The parents of a girl who was killed when the personal watercraft upon which she was riding collided with another watercraft, filed a wrongful death action against the other vehicle's owner and operator. The defendants moved for summary judgment based upon primary assumption of the risk, arguing that the risk of collision with another personal watercraft is inherent in the activity and that the decedent had assumed the risk.

In opposition the plaintiffs argued that the primary assumption of the risk doctrine does not apply because the plaintiff was not engaged in a covered sporting activity and was merely a passenger on the craft who had been taken out for a "simple ride around the lake."

The trial court granted the motion for summary judgment, finding that the doctrine of primary assumption of risk applied and provided a complete defense. The court of appeal affirmed, rejecting the plaintiffs' contention that the decedent's status as a passenger removed the case from the doctrine of primary assumption of the risk:

As noted previously, in determining whether the primary assumption of risk doctrine applies in a particular case we examine the nature of the activity or sport in which the defendant was engaged and the relationship of the defendant and the plaintiff to that activity or sport.

. . .

In our view, the record supports the conclusion that riding as a passenger on a personal watercraft, meets the test from Record, because it "is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury." (Record, supra, 73 Cal.App.4th at p. 482, 86 Cal.Rptr.2d 547.) It is evident from the nature of the vehicle that the activity is done for enjoyment or thrill. The vessel is open to the elements, with no hull or cabin. It is designed for high performance, speed and quick turning maneuvers. The thrill of riding the vessel is shared by both the operator and the passenger. Obstacles in the environment such as spraying water, wakes to be crossed, and other watercraft are part of the thrill of the sport, both for the operator and the passenger. The connection between the water and the vessel that Cu Van described applies equally to both the operator and any passengers.

. . .

If we were to apply the rule Plaintiffs propose, the question whether a duty would be imposed on personal watercraft operators would depend on whether the operator had a passenger or was operating in the vicinity of other vessels that happened to have passengers. A rule that applies the doctrine to watercraft without passengers, but not to those carrying passengers, would alter the fundamental nature of the sport in that operators would have two separate standards to maintain while engaged in the activity. Such a rule would impose a duty to avoid intentional or reckless behavior with regard to other solo *695 drivers but a duty to avoid negligent activity in the event there was a passenger on board the operator's own craft or another watercraft in the vicinity. In our view, this would create an unworkable, impractical scheme.

INDEPENDENT CONTRACTORS-RETAINED CONTROL
Millard v. Biosources, Inc., (4th District, November 15, 2007) --- Cal.Rptr.3d ----, 2007 WL 3379799

A heating and air conditioning technician who was injured when he fell through a ceiling while working in an attic of a commercial building, filed suit against the general contractor which had hired his employer. The plaintiff alleged that he was injured because the lights in the attic had suddenly gone out, causing him to lose his equilibrium, and that earlier in the day, an employer of the general contractor had inadvertently turned out the lights before switching them back on.

The defendant moved for summary judgment, arguing that the plaintiff's action was barred by the Privette Doctrine. In opposition, the plaintiff contended that the defendant had affirmatively contributed to his injuries by failing to conduct a safety meeting or post a safety tag near the electrical panel and light switch to the attic light.

The trial court granted summary judgment and the court of appeal affirmed, holding that the plaintiff could not invoke the retained control/affirmative contribution exception to Privette:

"Affirmative contribution" occurs where a general contractor " 'is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]' [Citation.]" (Hooker, supra, 27 Cal.4th at p. 215, 115 Cal.Rptr.2d 853, 38 P.3d 1081.)

In this case, Millard did not submit evidence sufficient to raise a triable issue of fact that Biosources affirmatively contributed to Millard's injuries. Biosources did not control the means and methods of Millard's work. No Biosources personnel were at the work site at the time Millard fell.

Millard attempts to connect the incident in the morning when Corcoran mistakenly tripped a circuit breaker while working on an electrical panel with the accident that occurred that afternoon. However, Corcoran could have no connection to the attic lights to going out or "flickering" in the afternoon as he was not present at that time. Moreover, Millard has presented no evidence that the circuit breaker was tripped again immediately prior to his fall. The only evidence before the court was that the lights in the attic space were on immediately following Millard's fall. Although Millard speculates that the two events were connected, he has not submitted any evidence why the lights suddenly went out again in the afternoon, or why Biosources was responsible for that event. Thus, even if it could be shown that Biosources retained control over safety conditions at the project, there is no triable issue of fact that Biosources affirmatively contributed to Millard's injuries.

INSURANCE BAD FAITH-LACK OF THOROUGH INVESTIGATION
Wilson v. 21st Century Insurance Company, (California Supreme Court, November 29, 2007) --- Cal.Rptr.3d ----, 2007 WL 4200527

A woman who suffered severe degenerative disk changes in her neck as a result of an automobile collision filed an action for bad faith against her uninsured motorist carrier. The plaintiff alleged that following settlement with the other driver for minimal policy limits, her underinsured motorist claim was unreasonably rejected, resulting in a two-year delay until the carrier eventually paid the policy limits.

The carrier moved for summary judgment, contending that its decision to refuse the UIM demand was reasonable as a matter of law, in light of the facts known to the company at the time. The trial court granted the motion but the court of appeal reversed. The California Supreme Court affirmed the decision of the court of appeal, holding that a jury could reasonably conclude that the carrier had reached its medical conclusion without a good faith investigation of the claim and without a reasonable basis for genuine dispute:

Unfortunately for 21st Century's summary judgment position, a jury could reasonably find that nothing in the material the claims examiner had received justified these conclusions. 21st Century directs us to no medical report or opinion on the basis of which the claims examiner could reasonably have ignored or disbelieved Dr. Southern's conclusion that the changes in Wilson's cervical spine were probably caused by her recent trauma; as far as the record reveals, the claims examiner had no basis for his contrary conclusion that such a causative link was "unlikely." Nor is there any apparent medical basis for the claims examiner's assertion that Wilson had "preexisting degenerative disc disease." No such diagnosis appears in the medical reports submitted to 21st Century, and we are directed to no evidence that the company's claims examiner had sufficient medical expertise to make such a diagnosis himself.

. . .

21st Century, of course, was not obliged to accept Dr. Southern's opinion without scrutiny or investigation. To the extent it had good faith doubts, the insurer would have been within its rights to investigate the basis for Wilson's claim by asking Dr. Southern to reexamine or further explain his findings, having a physician review all the submitted medical records and offer an opinion, or, if necessary, having its insured examined by other physicians (as it later did). What it could not do, consistent with the implied covenant of good faith and fair dealing, was ignore Dr. Southern's conclusions without any attempt at adequate investigation, and reach contrary conclusions lacking any discernable medical foundation.

. . .

We agree that, the critical issue being the reasonableness of the insurer's conduct under the facts of the particular case, stating a general rule as to how much or what type of investigation is needed to meet the insurer's obligations under the implied covenant is difficult. An insurer's good or bad faith must be evaluated in light of the totality of the circumstances surrounding its actions. (Nager v. Allstate Ins. Co. (2000) 83 Cal.App.4th 284, 288, 99 Cal.Rptr.2d 348;Walbrook Ins. Co. v. Liberty Mutual Ins. Co. (1992) 5 Cal.App.4th 1445, 1455-1456, 7 Cal.Rptr.2d 513.) In some cases, review of the insured's submitted medical records might reveal an indisputably reasonable basis to deny the claim without further investigation. But as the Court of Appeal explained in passages following the statement 21st Century criticizes, and as we demonstrate above, under the facts of this case a triable issue of fact exists as to whether it was reasonable to deny Wilson's claim on the grounds stated without further medical investigation.