June 1997 Vol. 3 No. 6 ISSN 1087-6219
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In This Issue

• Courts of Appeal explore the rights of adopted children and the offspring of artificial insemination
• Supreme Court rules garbage collector did not breach duty of care to horseback rider
• Estate does not lose emotional distress damages claim when decedent dies during pendency of appeal
• Court of Appeal explains evidence required to overcome presumption of at will employment
• Police who take control of hostage situation owe duty of care to hostages
• UPDATES

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Courts of Appeal explore the rights of adopted children and the offspring of artificial insemination

The rights of children who do not live with their biological mothers and fathers raise interesting legal issues. Two recent decisions affirmed dismissals of claims brought by such children.

The Santa Ana division of the Fourth District Court of Appeal ruled that an adopted child may not sue for the wrongful death of her biological mother. Julia Phraner was born to Cathie Todd, and then adopted by the Phraners. Julia never lived with Todd, but did see her twice a year, and exchanged letters and phone calls. Todd provided no financial support.

Code of Civil Procedure section 377.60 provides that a decedent's “children” may bring a wrongful death action. Since the statute does not define “children,” the court looked to Probate Code section 6451 to determine the effect of adoption on Julia's status. Section 6451 provides that an adoption severs the parent-child relationship unless (1) the child and the natural parent lived together as parent and child, or the natural parent was married to or cohabiting with the other natural parent at conception and died before birth, and (2) the adoption was by the spouse of one of the natural parents, or after the death of one of the natural parents.

That definition did not cover Julia. The court rejected her argument that the policy of providing compensation for loss of companionship required recognition of her claim.

In the second case, Lorraine S. and Gordon S. arranged to have the Pacific Fertility Medical Center artificially inseminate Lorraine with the sperm of another man. Gordon signed a consent form agreeing to be treated as the child's natural father. However, a doctor did not certify his signature, as required by Family Code section 7613. Lorraine gave birth to Alexandria. Within a year, Gordon filed for divorce.

The Court of Appeal rejected Alexandria's argument that the clinic's conduct in not having Gordon's signature certified wrongfully deprived her of a legal father. The statute did not establish a duty of care to her. In addition, certification was not required to establish Gordon's consent. Therefore, Alexandria could pursue a direct claim against Gordon for support.

Phraner v. Cote Mark, Inc., 1997 WL 270621 (Cal. Ct. App. May 20, 1997); Alexandria S. v. Pacific Fertility Med. Ctr., No. A073452 (Cal. Ct. App. May 21, 1997).

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Supreme Court rules garbage collector did not breach duty of care to horseback rider

The California Supreme Court has ruled that a garbage collector does not breach a duty of care to a horseback rider so long as he operates his garbage truck without making unusual, unnecessary noises. The Court relied on several cases holding that machinery operators do not have a special duty to avoid offending horses' delicate sensibilities.

Darrell Parsons was riding Poco along a public bridle path in Burbank. Efren Ramirez, a Crown Disposal employee, was emptying a trash bin into his collection truck on a parking lot next to the bridle path. The noise spooked Poco, who threw Parsons onto the concrete. The Supreme Court concluded that the trial court correctly entered summary judgment for Crown Disposal.

Decisions dating back to the 1800's established a general rule of non-liability for damage caused by spooked horses. To establish liability, a plaintiff had to prove one of four exceptions: (1) the defendant used machinery in a careless manner, or caused noises or emissions that were not necessary to the regular operation of the machine, (2) the defendant failed to take adequate protective measures after learning that the horse had actually become frightened, (3) the defendant operated the machinery with the intent to frighten the horse, or (4) the defendant violated a specific statute designed to protect a class of which plaintiff was a member. Here, there was no evidence to establish any of the exceptions.

In overturning the grant of summary judgment, the Court of Appeal had found a general duty to avoid increasing the risks to a sports participant over and above those inherent in the sport. It relied on a statement to that effect in Knight v. Jewett, 3 Cal. 4th 296 (1992).

The Supreme Court pointed out that Knight involved a defendant who was also participating in the sport (touch football). Where, as in this case, there is no relationship between the plaintiff and the defendant, there is no duty to avoid increasing the risk of harm to a participant. The question is whether the defendant was operating its equipment with due care.

Justices Mosk and Kennard dissented. They thought that the question of whether Crown Disposal breached the duty of care involved disputed facts. Parsons might have been able to prove that Ramirez had seen the frightened horse in time to take preventive measures.

Justice Kennard also thought that the majority had misapplied the standards for summary judgment. She said that the Court improperly pointed to the absence of evidence of negligent conduct. Crown Disposal had the burden of producing evidence to establish what its conduct was.

Parsons v. Crown Disposal Co., 1997 WL 230026 (Cal. May 8, 1997).

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Estate does not lose emotional distress damages claim when decedent dies during pendency of appeal

The California Supreme Court has refused to apply the bar to recovery of a decedent's emotional distress damages in a case where the decedent died during the appeal. The estate may recover such damages so long as the decedent does not die until after entry of judgment in the trial court.

Joseph Sullivan won his wrongful termination case against Delta Air Lines at trial. The jury awarded him $275,000 in emotional distress damages, but deadlocked on one cause of action. The trial court entered judgment on the favorable verdicts, and granted a new trial as to the cause of action on which the jury deadlocked.

Code of Civil Procedure section 377.34 provides that, in “an action or proceeding” on a decedent's cause of action, the “damages recoverable . . . do not include damages for pain, suffering, or disfigurement.” A prior version of the statute had applied the restriction where the decedent “dies before judgment.” The Legislature intended no substantive change by the change in wording.

Delta argued that an action continues until the judgment becomes final. For many purposes, such as res judicata, a judgment does not become final in California until the appellate process concludes. However, the Supreme Court pointed out that the term final is also used to describe a trial court decision that is ripe for appeal.

At common law, all causes of action for personal torts died with the decedent. However, once the claim was reduced to judgment, the judgment became part of the decedent's estate, even if the decedent died during an appeal from that judgment. Sherwin v. Southern Pacific Co., 168 Cal. 722 (1914).

In 1949, California changed the general rule of non-survivability, but placed limitations on the damages that could be recovered. However, the Legislature never expressed an intent to change the rule that a decedent's death during the pendency of an appeal did not abate a trial court's final judgment.

The Supreme Court will revisit section 377.34 when it decides County of Los Angeles v. Superior Court (Schonert), 50 Cal. App. 4th 1453 (1996), review granted (Mar. 12, 1997). The question in that case is whether section 377.34's restriction on recovery of emotional distress damages applies to actions under 42 U.S.C. section 1983. The case was discussed in the December 1996 issue of Appellate Decisions Noted.

Sullivan v. Delta Air Lines, Inc., 63 Cal. Rptr. 2d 74 (1997).

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Court of Appeal explains evidence required to overcome presumption of at will employment

The First District Court of Appeal in San Francisco has reversed summary judgment for the employer in a wrongful termination case. It found that the employee had presented sufficient evidence to overcome California's statutory presumption of at will employment.

John Guz worked for Bechtel for 22 years. During that time, he received six major promotions and 17 merit raises. In 1992, he received the Silver Performance Plus Award for his excellent work performance. At no time did Bechtel ever advise Guz that his skills were deficient. In December 1992, Bechtel laid Guz off after his management information group was disbanded. He was discharged effective June 1993.

Bechtel's personnel policies provided that its employees had no guarantee of continuous employment and could be terminated at Bechtel's option. Bechtel had a progressive discipline system, which gave unsatisfactory employees notice and an opportunity to correct their deficiencies. Long term employees received preference during layoffs.

Labor Code section 2922 establishes a presumption of at will employment. A plaintiff may overcome that presumption by proving an implied in fact agreement not to discharge except for good cause. To determine whether there is such an implied agreement, the court looks to the “totality of the circumstances.” It considers the following factors: (1) personnel policies and practices, (2) length of service, (3) employer assurances of continued employment, and (4) industry practices. Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988).

Here, the absence of employer assurances of continued employment did not establish as a matter of law that Guz's employment was at will. Guz's evidence was sufficient for a factfinder to conclude that there was an implied agreement. Therefore, Guz was entitled to a trial of his claim that the real reason for his discharge was dissatisfaction with his performance. For that he was entitled to notice and an opportunity to improve.

Guz v. Bechtel National, Inc., 1997 WL 242124 (Cal. Ct. App. May 9, 1997).

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Police who take control of hostage situation owe duty of care to hostages

The First District Court of Appeal in San Francisco has ruled that the mother of two hostages who died at the hands of their father may pursue a wrongful death action against the police. By taking control of the hostage situation, the police assumed liability for their tactical decisions.

Joel and Jennifer Souza were estranged. Joel held their children, Nicholas and Cheri, hostage and threatened to shoot them. Prompted by Jennifer's 911 call, the Antioch Police Department took control of the hostage situation. After about eight hours, the police told Joel to surrender in ten minutes. A few minutes later he was told that a SWAT team was coming into the bedroom in three of four minutes. Shortly thereafter, Joel shot the children and then himself.

Police do not have an affirmative duty to protect crime victims from harm. However, the Antioch police assumed a duty of care when they responded to the emergency call and took exclusive control of the situation.

The court rejected defendants' claim of discretionary immunity under Government Code section 820.2. The decisions at the scene were mere “operational” ones. Had the Department refused to respond to the call, its decision might have been discretionary. Once it did respond, it assumed a duty to act reasonably under the circumstances.

However, close family members who suffered emotional distress after they heard the fatal shots did not have a claim for negligent infliction of emotional distress.

Souza v. City of Antioch, 62 Cal. Rptr. 2d 909 (Ct. App. 1997).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Chen v. Superior Court (May 1997 issue), now reported at 62 Cal. Rptr. 2d 526 (Ct. App. 1997).

Cheng-Canindin v. Renaissance Hotel Assoc. (December 1996 issue), review denied (Feb. 19, 1997).

Coalition for Economic Equity v. Wilson (May 1997 issue), now reported at 110 F.3d 1431 (9th Cir. 1997).

Fletcher v. Kalina (September 1996 issue), cert. granted, 117 S.Ct. 1079 (Feb. 24, 1997).

Hicks v. Pacific Bell (March 1997 issue), review granted (Apr. 30, 1997), and further action deferred pending disposition of Cotran v. Rollins Hudig Hall, 49 Cal. App. 4th 903 (1996), review granted (Jan. 22, 1997). The decisions may no longer be cited. Cal. R. Ct. 976(d), 977.

Nordyke v. Santa Clara County (May 1997 issue), now reported at 110 F.3d 707 (9th Cir. 1997).

Stirlen v. Supercuts, Inc. (February 1997 issue), review denied (Apr. 16, 1997).

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