California Tort Damages

We updated all of the citations in the book and reviewed developments for relevant changes. Among the changes we found were the following:

Bodily Injury

An injured plaintiff who chooses to receive medical services outside of his insurance plan will be treated as “uninsured” and may recover the full amount billed. See §1.20 for discussion of Pebley v Santa Clara Organics, LLC (2018) 22 CA5th 1266.

The Fair Employment and Housing Act (Govt C §§12900–12996) was amended to provide that, notwithstanding CCP §998, a prevailing defendant must not be awarded fees and costs unless the court finds that the action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so. Govt C §12965(b). See §1.106A.

Survival Actions

See §4.13 for discussion of recovery of the reasonable cost or value of personal services to and from the decedent in Williams v The Pep Boys Manny Moe & Jack of Cal. (2018) 26 CA5th 672.

Emotional Distress

Postmajority psychological injury claims against government entities arising from sexual assault as a minor must comply with government tort claim presentment requirements to be viable. The extension of statute of limitations under CCP §340.1 does not extend the time for presenting a government tort claim to a public entity and does not delay accrual or cause the action to re-accrue for purposes of presentment. See Rubenstein v Doe No. 1 (2017) 3 C5th 903, discussed in §6.20.

Intentional infliction of emotional distress (IIED) claims arising from unlawful discrimination and retaliation in violation of the Fair Employment and Housing Act are outside the workers’ compensation bargain, and immunity under Lab C §§3600 and 3602 is no defense. See Light v Department of Parks and Recreation (2017) 14 CA5th 75, discussed in §6.23.

Defamation

Defamation damages did not extend to an internet publisher entitled to immunity under 47 USC §230(c)(1), and the publisher was not required to remove the defamatory post. See §8.6 for discussion of Hassell v Bird (2018) 5 C5th 522.

Invasion of Privacy

Not every assertion of a privacy interest under Cal Const, art I, §1 must be overcome by a compelling interest. When lesser interests are at stake, the interest in disclosure is balanced against the privacy interest, the seriousness of the invasion, and the availability of alternatives or protective measures. See Williams v Superior Court (2017) 3 C5th 531, discussed in §9.2.

Vehicles and Other Personal Property

Business cannot recover economic loss under negligence theory without accompanying property damage, personal injury, or special relationship. See Southern California Gas Leak Cases (2017) 18 CA5th 581, discussed in §13.15. In CRST, Inc. v Superior Court (2017) 11 CA5th 1255, the court held that an employer that is vicariously liable may be liable for punitive damages if the employer was aware of an employee’s unfitness and employed him or her anyway. See §15.17.

About the Second Edition Authors

PAUL PEYRAT, legal writer and educator, was the author of the predecessor of this current volume. For CEB, he has also authored California Tort Guide, now in its third edition, California Workers’ Damages Practice, now in its second, and chapters and parts of other CEB books. Based in Sonoma, he is a managing editor and 40-year contributor to the monthly publication California Workers’ Compensation Reporter. He received his B.A. in 1955 and his J.D. in 1958 from the University of Minnesota.

THE HONORABLE MARY E. WISS currently has a civil assignment at the San Francisco Superior Court. Before her appointment to the bench, Judge Wiss was a sole practitioner in San Francisco, specializing in personal injury, wrongful death, medical negligence, and product liability law. She is a past president of the San Francisco Trial Lawyers Association and of Queen’s Bench. Judge Wiss frequently lectures for CEB on torts, evidence, and trial practice topics. She received her B.A. in 1972 from the University of San Francisco, her M.S. in 1976 from Lone Mountain College, and her J.D. in 1981 from the University of San Francisco School of Law.