I. J. Weinrot & Son, Inc. v. Jackson

CourtUnited States State Supreme Court (California)
Writing for the CourtGRODIN; MOSK; BIRD
Citation708 P.2d 682,40 Cal.3d 327,220 Cal.Rptr. 103
Parties, 708 P.2d 682 I.J. WEINROT AND SON, INC., Plaintiff and Appellant, v. Mart Bailey JACKSON et al., Defendants and Respondents. L.A. 32028.
Decision Date12 November 1985

Page 103

220 Cal.Rptr. 103
40 Cal.3d 327, 708 P.2d 682
I.J. WEINROT AND SON, INC., Plaintiff and Appellant,
v.
Mart Bailey JACKSON et al., Defendants and Respondents.
L.A. 32028.
Supreme Court of California.
Nov. 12, 1985.

[40 Cal.3d 329]

Page 104

[708 P.2d 683] Bernard S. Shapiro, Joseph W. Fairfield and Robert A. Fairfield, Los Angeles, for plaintiff and appellant.

Demler & Armstrong, James P. Spaltro, Long Beach, Lascher & Lascher and Edward L. Lascher, Ventura, for defendants and respondents.

GRODIN, Justice.

The principal question in this appeal is whether CIVIL CODE SECTION 491, subdivision (c), gives a corporate employer a cause of action for damages resulting from injuries to a key employee caused by a third party's negligence. For the reasons stated in part II of this opinion we conclude that it does not. In part I we adopt with certain modifications the opinion of Justice Arguelles in the Court of Appeal, holding that the appeal was timely filed.

FACTS

On August 18, 1982, I.J. Weinrot and Son, Inc. (plaintiff) was a closely held California corporation with Edwin Weinrot as its president, employee, and majority shareholder. At 11 p.m. that evening, while walking his dog, Weinrot was struck and injured by an automobile driven by Mart Bailey Jackson and owned by Benjamin M. Jackson (defendants).

On December 22, 1982, a complaint for damages was filed on behalf of Weinrot, his wife Irene Weinrot, and I.J. Weinrot and Son, Inc. In addition to causes of action seeking damages for Weinrot's personal injuries and Mrs. Weinrot's loss of consortium, the complaint contained a "Fifth Cause of Action," seeking corporate recovery for salary paid to Weinrot while he [40 Cal.3d 330] was unable to perform his usual duties, as well as lost business profits, and reimbursement for amounts paid for Weinrot's medical expenses.

The relevant portions of the complaint alleged that plaintiff was a duly organized California corporation, that Weinrot was the president and an employee of the corporation, and that plaintiff was contractually obligated to pay Weinrot's medical expenses and his salary whether or not he was able to perform his usual duties. The complaint further alleged that, as a result of defendants' negligence, Weinrot became unable to perform his usual duties as president of plaintiff corporation and incurred medical expenses which plaintiff was obligated to pay. In addition, it alleged that the corporation had lost profits as a result of Weinrot's inability to work.

Defendants filed a demurrer to plaintiff's complaint on March 1, 1983. By minute order entered April 8, 1983, the court sustained the demurrer.

On April 22, 1983, plaintiff filed a motion for reconsideration of the court's order sustaining the demurrer. The motion was denied on June 10, 1983, but the trial court took defendants' request for sanctions under submission. By minute order entered

Page 105

June 13, 1983, the court awarded defendants sanctions against plaintiff in the sum of $250.

On July 19, 1983, judgment was entered against plaintiff corporation on the order sustaining the demurrer without leave to amend; on July 25, a judgment was entered[708 P.2d 684] against plaintiff corporation on the order denying the reconsideration motion. This appeal followed.

I. *

Before reaching the merits of this appeal, we address defendants' preliminary contention that the notice of appeal was not timely filed and the appeal, therefore, should be dismissed. Specifically, defendants argue that: (1) the time for filing an appeal from the trial court's order sustaining defendants' demurrer began to run on April 8, 1983, when the court entered its minute order, but the notice of appeal was not filed until August 8, 1983, more than double the 60-day period permitted for the filing of a notice of appeal under rule 2 of the California Rules of Court; (2) [ ] plaintiff failed to file the notice of appeal within 30 days of the order denying its reconsideration motion, as prescribed by rule 3 of the California Rules of Court and Blue [40 Cal.3d 331] Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1009-1010, 183 Cal.Rptr. 594; and (3) the motion for reconsideration was [not timely filed and, in any case, was] not appealable because it was based on the same factual showing as was made in plaintiff's opposition to the demurrer. (Blue Mountain Development Co. v. Carville, supra, 132 Cal.App.3d at p. 1011, 183 Cal.Rptr. 594.) We reject all of these arguments.

An order sustaining a demurrer without leave to amend is not an appealable order; only a judgment entered on such an order can be appealed. (Jackson v. Teachers Ins. Co. (1973) 30 Cal.App.3d 341, 343, 106 Cal.Rptr. 208; see generally 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 64, p. 4078.) Such a judgment was entered here on July 19, 1983, and the time period for the filing of a notice of appeal commenced to run [only upon mailing of notice or service of notice of that entry.] (Cal.Rules of Court, rule 2.) Therefore, the August 8, 1983, filing of the notice of appeal was timely.

The issues of whether plaintiff was required to, and did in fact, comply with the time requirements for filing a reconsideration motion under Code of Civil Procedure section 1008, and whether the same factual showing was made in that motion as had been made previously, need not be considered here because the order denying reconsideration is nonappealable for a more fundamental reason. "If the original ruling is not final and appealable in its own right, then it is not a judgment and an order denying reconsideration cannot be appealable. '[A]n appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion.' (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 43-44 [162 P.2d 8].)" (Blue Mountain Development Co. v. Carville, supra, 132 Cal.App.3d at p. 1010, 183 Cal.Rptr. 594.) However, that portion of the June 13, 1983, order awarding sanctions of $250 to defendants is appealable "because it is a final order on a collateral matter directing the payment of money. [Citations.]" (O'Brien v. Cseh (1983) 148 Cal.App.3d 957, 960, 196 Cal.Rptr. 409.) Therefore, only the order awarding sanctions and the judgment of July 19, 1983, are properly before this court on appeal. [We end our quotation from the Court of Appeal opinion at this point.]

II.

Plaintiff's only asserted basis for its action is section 49, subdivision (c). Section 49, in its entirety, provides:

Page 106

"The rights of personal relations forbid:

"(a) The abduction or enticement of a child from a parent, or from a guardian entitled to its custody;

[40 Cal.3d 332] "(b) The seduction of a person under the age of legal consent;

[708 P.2d 685] "(c) Any injury to a servant which affects his ability to serve his master, other than seduction, abduction or criminal conversation."

Plaintiff contends that this section affords a business employer a cause of action for damages caused by harm negligently inflicted upon its employees. 2 We do not agree.

Remarkably, although section 49, subdivision (c) codifies the common law and has existed in statutory form since 1872, this court has never before squarely confronted the question whether such a cause of action exists. To address this issue adequately, a somewhat detailed review of the history of section 49, its common law origins, and the decisions interpreting the statute is necessary.

Section 49 was originally enacted as part of the Civil Code of 1872. Section 5 of that code stated, "[t]he provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments." And, as we explained in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 814, 119 Cal.Rptr. 858, 532 P.2d 1226, the purpose of the Legislature in enacting those sections of the 1872 Civil Code declarative of the common law was "to announce and formulate existing common law principles and definitions for purposes of orderly and concise presentation and with a distinct view toward continuing judicial evolution."

As originally enacted, section 49 read:

"49. The rights of personal relation forbid:

"1. The abduction of a husband from his wife, or of a parent from his child;

"2. The abduction or enticement of a wife from her husband, of a child from a parent or from a guardian entitled to its custody, or of a servant from his master;

[40 Cal.3d 333] "3. The seduction of a wife, daughter, orphan sister, or servant;

"4. Any injury to a servant which affects his ability to serve his master."

The statute's common law origins were indicated by the Code Commissioners' note immediately following section 49 in the 1872 code. 3 That note begins with a reference to the section of Book III of Blackstone's Commentaries discussing the common law causes of action for injuries affecting domestic relations.

That the commissioners' chief concern was with the regulation of family relations is made clear by the page reference given to Blackstone and by the comments and case citations following. The commissioners referred to pages 138 to 141 in Blackstone which address a husband's actions for adultery and the abduction or beating of a wife, and actions by parents and guardians for abduction or seduction of a child or ward. The commissioners made no reference to Blackstone's discussion of a master's action for injuries to his servant,

Page 107

which appears on pages 141-143. Similarly, the commissioners' comments and case citations were limited to explanations of subdivisions 1, 2, and 3 of section 49. No clarification of subdivision 4 appeared in the commissioners' explanatory material. [708 P.2d 686] Thus, it appears that the major objective of the Code Commissioners, and presumably of the 1872 Legislature, was to codify the common law actions for abduction or seduction of a wife...

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88 practice notes
  • Shoemaker v. Myers, No. S001726
    • United States
    • United States State Supreme Court (California)
    • 20 Diciembre 1990
    ...the services of a domestic servant; in any event, it is inapplicable to a business employee. (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 220 Cal.Rptr. 103, 708 P.2d With respect to the tort of interference with prospective economic advantage, plaintiff's pleading has identifi......
  • City and County of San Francisco v. Philip Morris, Inc., No. C-96-2090 DLJ.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 26 Febrero 1997
    ...See Fifield Manor v. Finston, 54 Cal.2d 632, 637, 7 Cal.Rptr. 377, 354 P.2d 1073 (1960); I.J. Weinrot and Son, Inc. v. Jackson, 40 Cal.3d 327, 329, 220 Cal.Rptr. 103, 708 P.2d 682 (1985). Additionally, California law precludes recovery by employers from tortfeasors for increased insurance e......
  • Greenfield v. Fritz Companies, Inc., No. A086982.
    • United States
    • California Court of Appeals
    • 28 Julio 2000
    ...amend is not an appealable order; only a judgment entered on such an order can be appealed." (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331, 220 Cal.Rptr. 103, 708 P.2d 682, original italics.) Here a judgment was entered, prior to the notice of appeal. In accordance with the......
  • Financial Corp. of America v. Wilburn
    • United States
    • California Court of Appeals
    • 18 Febrero 1987
    ...is not itself appealable either. (Genis v. Krasne (1956) 47 Cal.2d 241, 249, 302 P.2d 289; I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331, 220 Cal.Rptr. 103, 708 P.2d 682.) The notice of appeal filed on August 7, 1985 does not refer to the judgment entered on July 9 sustainin......
  • Request a trial to view additional results
88 cases
  • Shoemaker v. Myers, No. S001726
    • United States
    • United States State Supreme Court (California)
    • 20 Diciembre 1990
    ...the services of a domestic servant; in any event, it is inapplicable to a business employee. (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 220 Cal.Rptr. 103, 708 P.2d With respect to the tort of interference with prospective economic advantage, plaintiff's pleading has identifi......
  • City and County of San Francisco v. Philip Morris, Inc., No. C-96-2090 DLJ.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 26 Febrero 1997
    ...See Fifield Manor v. Finston, 54 Cal.2d 632, 637, 7 Cal.Rptr. 377, 354 P.2d 1073 (1960); I.J. Weinrot and Son, Inc. v. Jackson, 40 Cal.3d 327, 329, 220 Cal.Rptr. 103, 708 P.2d 682 (1985). Additionally, California law precludes recovery by employers from tortfeasors for increased insurance e......
  • Greenfield v. Fritz Companies, Inc., No. A086982.
    • United States
    • California Court of Appeals
    • 28 Julio 2000
    ...amend is not an appealable order; only a judgment entered on such an order can be appealed." (I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331, 220 Cal.Rptr. 103, 708 P.2d 682, original italics.) Here a judgment was entered, prior to the notice of appeal. In accordance with the......
  • Financial Corp. of America v. Wilburn
    • United States
    • California Court of Appeals
    • 18 Febrero 1987
    ...is not itself appealable either. (Genis v. Krasne (1956) 47 Cal.2d 241, 249, 302 P.2d 289; I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331, 220 Cal.Rptr. 103, 708 P.2d 682.) The notice of appeal filed on August 7, 1985 does not refer to the judgment entered on July 9 sustainin......
  • Request a trial to view additional results

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