IRMO Liss

NAME: IRMO Liss
Jx/DATE/CITE: Court of Appeal of California, Second Appellate District, Division Five, (1992)
In re Marriage of Liss, 10 Cal. App. 4th 1426, 1428, 13 Cal. Rptr. 2d 397, 397 (1992)
DECISION BELOW: In a dissolution proceeding of a marriage of 13 years, the trial court entered a judgment of dissolution, and resolved a few other issues; it reserved Jx over spousal support (SS) . At a subsequent proceeding to resolve issues that were left unaddressed at the previous hearing, the Court decline to provide H SS. However because of the length of the marriage [13 years], and H’s statement at the hearing that he would not waive SS, the Court retained Jx over SS until either party’s death, remarriage or further order of the court. The Court did this despite the fact that H’s initial response failed to request SS, and further, the Husband argued in his trial brief that the Court should not retain, or grant, SS to the parties.
RULE: 1)      Where the Respondent does not waive his right to Spousal Support, the Court may retain Jx over Spousal Support despite Respondent’s failure to request it in his initial response.

2)      Due process is satisfied when the other party is present, and able to object (as opposed to a default).

BRIEF ANALYSIS:
FACTS:
P ARGUMENT: 1)      Since H failed to request Spousal Support in his initial Response, he waived his right to Spousal Support in the future and argued that Spousal Support should not be granted, and the Court should not retain JX.

2)      Because H failed to request Spousal Support initially, the Trial Court did not have the power to retain jurisdiction on an issue that was not raised by H in the initial pleading stage.

R ARGUMENT: The reservation of jurisdiction over spousal support after a lengthy marriage is supported by strong policy, and the parties were married for 13 years. Further, H expressly stated that he was not waiving his claim to Spousal Support. Thus, the Court has the right to retain Jx over the issue.
RULE:
ANALYSIS: A trial court has wide discretion in a nondefault matter to permit parties to amend their pleadings in furtherance of justice or to conform to proof. ( Code Civ. Proc., § 469, 473, 576; Cal. Rules of Court, rule 1215(d) [amendment of family law pleadings]. There is no abuse of discretion when, taking the length of marriage into account, the Court finds that Jx is properly retained despite H’s initial failure to request Spousal Support. Had the Court found that H waived his claim to Spousal Support, the case would be different.

In response to W’s Lippel argument, the Court noted that there is a fundamental difference between a contested dissolution, and default dissolution. In a default setting, the other side does not appear, and thus, any award beyond what was requested in the pleadings would violate due process (including retaining jurisdiction over something not requested in the initial Petition, or an Amended Petition [one amended Petition by right before Response is filed]). [NOTE: The Lippel argument can only work for the Petitioner then, because by definition, dissolution becomes contested when a response is filed]. The Court found that because it was a contested case, the Court could retain Jx over SS, despite it not being requested initially, because W was able to object to the Court retaining jurisdiction, and have her argument heard.

CONCURRENCE(S): N/A
DISSENT(S): N/A
USE OF THIS CASE It is unfortunately common, but people sometimes forget to check all the appropriate boxes on Judicial Forms in Family Court proceedings. Much like the Petitioner in this case, the opposing side may argue that failure to request amounts to a waiver; this is not the case.
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Catsouras v. Dept of Calif. Highway Patrol (1999) – 104 Cal.Rptr.3d 352.

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Case Name: Catsouras v. Dept of Calif. Highway Patrol
Date: 1999
Jurisdiction: California Court of Appeals
Rule: In considering the existence of ‘duty’ in a given case several factors require consideration including (1) ‘the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4)the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and (7)consequences to the community of imposing a duty to exercise care with resulting liability for breach, (8)and the availability, cost, and prevalence of insurance for the risk involved.
Brief Analysis: Because the CHP is in the best position, and the Rowland factors weigh very much in favor of Plaintiffs, CHP owed them a duty not to place death photos on the internet.  (1) (2)  It is completely foreseeable that posting the photos on the internet would result in emotional distress for those specific Plaintiffs;  (3) While the connection is a two-step connection, they are still causally connected; (4) It is very immoral to post those pictures on the internet; etc.,
Topic Area: Negligent Infliction of Emotional Distress

 

Facts: On October 31, 2006, decedent, the daughter of  Plaintiffs was decapitated in an automobile accident. CHP officers arrived at the scene, cordoned off the area where the accident occurred, and took control of decedent’s remains. The CHP officers took multiple photographs of her decapitated corpse. The photographs were downloaded to one or more CHP computersDefendant’s, without plaintiffs’ consent, e-mailed or  otherwise transmitted ‘‘graphic and horrific photographs’’ of decedent to members of the public who were not involved in the official investigation of the car crash in which decedent perished. Thereafter, more than 2,500 Internet Web sites in the United States and the United Kingdom posted the photographs. Plaintiffs were subjected to malicious taunting by persons making use of the graphic and horrific photographs. For example,  Plaintiffs, received e-mails containing the  photographs, including one entitled ‘‘Woo Hoo Daddy’’ that said, ‘‘Hey Daddy I’m still alive.’’ Some Web sites painted decedent’s life in a false light, including one that described decedent ‘‘as a ‘stupid bitch,’ [and] a ‘swinger, As a proximate result of the acts of defendants, plaintiffs suffered severe emotional and mental distress.
P Argument:
D Argument:
Rule: In considering the existence of ‘duty’ in a given case several factors require consideration including (1) ‘the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4)the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and (7)consequences to the community of imposing a duty to exercise care with resulting liability for breach, (8)and the availability, cost, and prevalence of insurance for the risk involved.
Analysis: When those upon whom we rely to protect and serve do the opposite, and make the decapitated corpse of a teenage girl the subject of international gossip and disrespect, and inflict devastating emotional harm on the parents and siblings of that girl. Every CHP officer should know better. The CHP is in a position to  insure that this does not happen again. Here, there is no indication that it is not completely within the powers of the CHP to prohibit its officers from disseminating death images to friends and family members for ghoulish thrill purposes. As for the role of the CHP, we have already observed that the CHP is under no obligation to stop and investigate an accident. However, if it chooses to do so, it must refrain from engaging in affirmative conduct that places the persons at the scene in harm’s way. Once photographic evidence is collected, it is not the role of the CHP or its officers to distribute that evidence to friends and family members. Concomitantly, it is not the role of the CHP or its officers to put the parents and siblings of the decedent at risk of harm of seeing the grotesque death images of their deceased loved one made the subject of Internet spectacle. Finally, we do not see how making it CHP policy to prohibit such actions, or prompting the CHP to enforce a preexisting policy to that effect, would have any material impact on the CHP budget, even in today’s difficult financial times.
Concurrence: N/A
Dissent: N/A
Conclusion: CHP owed a duty to Plaintiff not to disseminate photos of their decapitated child to the internet, they breached that duty, which caused the Plaintiffs harm (Emotional Distress). Further, this is under the negligence rubric.