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).

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.
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.

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.

CASE BRIEF: Wong-Leong v. Hawaiian Independent Refinery (1994) – 879 P.2d 538.

Case Name: Wong-Leong v. Hawaiian Independent Refinery
Date: 1994
Jurisdiction: Supreme Court of HI
Rule: The theory of respondeat superior, an employer may be liable for the negligent acts of its employees that occur within the scope of their employment
Brief Analysis: Because the celebrations were admittedly, “morale building”, this constitutes being within the “scope of employment” for respondeat superior purposes.
Topic Area: Vicarious Liability – Respondeat Superior


Facts: Defendant, HIRI, frequently celebrated promotions and other events where employees drank alcohol, and had BBQs, on company property. For these celebrations, supervisors would provide underlings money to purchase beer and food; that is what happened here.  The party in this case occurred between 6:00PM and 7:30PM.  After this celebration, an employee drove drunk and got into a car accident.  Suit was brought alleging liability to HIRI under a theory of respondeat superior.
P Argument: Plaintiff argues that because there is a business purpose and employment relationship, or employer benefit, in the use and consumption of alcohol on refinery premises in general, and specifically as part of refinery tradition in celebrating promotions, Defendant (HIRI ), can be held liable under the theory of respondeat superior,
D Argument: Defendant argues that the act of consuming alcohol on company property constitutes a “frolic” and therefore, this is not an appropriate situation to apply the theory of respondeat superior.
Rule: Under the theory of respondeat superior, an employer may be liable for the negligent acts of its employees that occur within the scope of their employment. “Scope of employment” is defined as:(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; and (c) it is actuated, at least in part, by a purpose to serve the master(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Analysis: The analysis of negligence under the theory of respondeat superior should focus completely on the actions of the employee, without consideration of the acts of the employer.  Respondeat superior liability may be imposed notwithstanding the fact that the foreseeable effects of the actor’s negligent conduct occur outside the scope of employment.  Becoming intoxicated is the critical time for determining whether the doctrine of respondeat superior applies.  The employer, through its employees, furnished alcohol to the tortfeasor in this case.  Defendant specifically stated that these celebrations contributed to “company moral”, which can be construed as a “purpose to serve the master” because happy workers are good workers.  Therefore, because the employee became intoxicated during a “moral building celebration”, he became intoxicated during an activity to benefit the master. Respondeat superior is an appropriate theory in this case.
Concurrence: N/A
Dissent: N/A
Conclusion: The case is remanded to decide whether the party furthered a business purpose sufficient to impose respondeat superior liability.