1. a.      Owner’s Duty to A Visitors

The owner¹ of real property is liable for failing to use ordinary care and skill in the management of his or her person and property to avoid injuring persons on or near it; the test is whether the owner acted as a reasonable person in view of the probability of injury to others. Rowland v Christian (1968) 69 C2d 108, 119, 70 CR 97.

In order evaluate whether or not an owner acted as a reasonable person, one must understand who a legal “reasonable person” is and/or what that the term signifies.  The truth is that there is no universally accepted technical definition of a “reasonable person”.  However, Black’s Law Dictionary defines a reasonable person as a hypothetical person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for protection of their own and of others’ interests.  In other words, the reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions.

The extent of an owner’s duty to use ordinary care to keep the property in a reasonably safe condition is based on the foreseeability that the condition will cause injury. Rowland v Christian (1968) 69 C2d 108, 119, 70 CR 97, 104; Fitch v LeBeau (1969) 1 CA3d 320, 324, 81 CR 722.

Examples include:

• A store owner has a duty to keep the floors safe for patrons’ use, recognizing that their attention will be attracted by items on the shelves. Tuttle v Crawford (1936) 8 C2d 126, 130, 63 P2d 1128, 1130; Craddock v Kmart Corp. (2001) 89 CA4th 1300, 1306, 107 CR2d 881.
• An owner who is aware of a concealed condition that creates, in the absence of precautions, an unreasonable risk of harm must either repair the condition or warn the persons likely to come in contact with it. Rowland v Christian (1968) 69 C2d 108, 119, 70 CR 97, 104; Fitch v LeBeau (1969) 1 CA3d 320, 324, 81 CR 722.

More broadly, an owner’s duty to use ordinary care may include a duty to make reasonable inspections of the premises to guard against possible dangers, to make the property reasonably safe for intended or foreseeable users and uses, and to warn of latent or concealed dangers. Beauchamp v Los Gatos Golf Course (1969) 273 CA2d 20, 27, 77 CR 914, 919.

1. b.      Owner’s Obligation for the Conduct of Other’s Behavior

In certain situations, an owner must act affirmatively to protect visitors² and employees from the wrongful conduct of other visitors. See Ann M. v Pacific Plaza Shopping Ctr. (1993) 6 C4th 666, 674, 25 CR2d 137.

For example, a business premises owner has a duty to protect invitees from: (a) visitors negligent conduct that threatens their safety if the owner has reasonable cause to anticipate or foresee such negligence and the probability of resulting injury; and (b) the intentional conduct of visitors who are known to be on the premises.

As for an owner’s liability for criminal acts of a third party, the owner of a business or public premises has a duty to secure it against foreseeable criminal acts that are likely to occur in the absence of precautionary measures, even when the owner does not actually know of the particular assailant’s presence or criminal intent. Ann M. v Pacific Plaza Shopping Ctr. (1993) 6 C4th 666, 674, 25 CR2d 137.

Foreseeability is the key word in holding a land owner liable for criminal acts of a third party.  Courts have been reluctant to conclude that the criminal acts of a third person were “foreseeable” absent circumstances such as prior similar criminal acts.  Even when criminal conduct is foreseeable, policy considerations and other factors may preclude imposing a duty, or a finding of breach of duty. Kentucky Fried Chicken v Superior Court (1997) 14 C4th 814, 829, 59 CR2d 756.

Therefore, it is more difficult to hold an owner liable for criminal acts of third parties than their own negligence or unreasonable conduct.

1. c.       Notice of Dangerous Condition

In most circumstances, the case will turn on whether there is a dangerous condition on the property and whether on the property owner is on notice of this condition.  Notice can come in several forms:  Actual or Constructive.  You can find a more in depth discussion in a separate blog to come.

1. d.      Establishing Proximate Cause and Damages

A visitor who has established that the property owner owed him or her a duty to protect against a dangerous condition, was on notice of this condition, and who establishes that the defendant breached that duty, must also establish that the defendant’s negligence was “an actual, legal cause” of the visitor’s injuries. Saelzer v Advanced Group 400 (2001) 25 C4th 763, 766, 107 CR2d 617.  The same showing of causation applies where owner’s liability does not involve conduct of a third party.

In premises liability cases, proximate cause is generally established through a showing that the harm suffered by the visitor was within the foreseeable consequences of the danger created as a result of the owner’s negligence.

The most obvious yet important factor in having a case against an owner of a real property is establishing that visitor has in fact sustained damages.  More commonly, in premises liability cases, the visitor has sustained damages to his or her person and/or property.  A visitor’s recovery can expand to his or her mental and emotional distress damages. 

EXCEPTIONS TO THE GENERAL RULE

The legislature and the courts have created several exceptions to the general rule that a property owner is liable for injury resulting from a failure to use ordinary care and skill, including the following:

• Furnishers of alcoholic beverages;
• Firefighters, peace officers, and emergency medical personnel;
• Recreational users; and
• Trespassers on railroad locomotives and cars.

These areas will be addressed in more detail in blogs to come.

A Property Owners Liability: Injuries on the Property and What Needs to be Proven

Due to the growing trend of couples living together while not married, the courts have created an approach to determine whether there are property rights.  In two cases, In re Marriage of Cary (1973) and Estate of Atherley (1975), California Court of Appeals held that the Family Law Act (Civ. Code, § 4000 et seq.) requires division of the property for non-married couples according to community property principles.  A conflicting case was ruled on in Beckman v. Mayhew (1975) 49 Cal. App. 3d 529, where the Court rejected that non-marital gained the benefit of community property law.

To resolve the controversy, the Supreme Court in Marvin v. Marvin (1976) held that: (1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision; (2) The courts should enforce express contracts between non-married partners except to the extent that the contract is explicitly founded on the consideration of sexual services; (3) In the absence of an express contract, the courts should look to the intent of the parties by their conduct to determine whether an implied contract, agreement of partnership or joint venture, or some other tacit was understood between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.

What are the Consequences of Marvin?

In Marvin, the Court referred to Vallera v. Vallera (1943) 21 Cal. 2d 681, 685 where the Supreme Court of California stated that “If a man and woman [who are not married] live together as husband and wife under an agreement to pool their earnings and share equally in their joint accumulations, equity will protect the interests of each in such property.”

The Court in Marvin reviewed numerous California decisions concerning contracts between non-marital partners and held that such decisions have established narrow and precise standard that, “a contract between non-marital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious sexual services.”  Further the Court in Marvin stated that, “the fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses.  Neither is such an agreement invalid merely because the parties may have contemplated the creation or continuation of a non-marital relationship when they entered into it.”

Therefore, based on the decision of Marvin, non-married couples may agree to pool their earnings and to hold all property acquired during the relationship in accordance with the law governing community property or to agree to hold such property as separate property of either partner.  Accordingly, such agreements are enforceable so long as do not rest upon illicit meretricious consideration.

In addition to enforcing express contracts that are not based on unlawful meretricious consideration, pursuant to Marvin, the courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement of partnership or joint venture, (Estate of Thornton (1972), or some other understanding between the parties. The courts may, when appropriate, employ principles of constructive trust (see Omer v. Omer (1974) or resulting trust. Finally, a non-marital partner may recover in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received if he can show that he rendered services with the expectation of monetary reward. (See Hill v. Estate of Westbrook)

What Are the Arguments for and Against Property Rights?

In a concur and dissent opinion by Justice Clark, he stated that the majority opinion properly permit recovery on the basis of either express or implied in-fact agreement between the parties.  However, Justice Clark believed that the opinion should have stopped there and not attempt to determine all anticipated rights, duties and remedies within every meretricious relationship.  Accordingly, Justice Clark stated that the majority broadly indicated that a party to a meretricious relationship may recover on the basis of equitable principles and in quantum merit, yet failed to advise of the circumstances permitting recover, limitations on recovery, or whether their numerous remedies are cumulative or exclusive.  Conceivably, under the majority opinion a party may recover half of the property acquired during the relationship on the basis of general equitable principles, recover a bonus based on specific equitable considerations, and recover a second bonus in quantum meruit.

Thus, according to the dissent, the strongest argument against Marvin is that the decision is too broad in some aspects.

What Does the Argument Against Marvin Aim For?

Essentially, Justice Clark’s dissent clearly establishes that when the parties to a romantic relationship show by express or implied agreement they intend to create mutual obligations, the courts should enforce the agreement. However, in the absence of an agreement, the courts should stop and consider the ramifications before creating economic obligations which may violate legislative intent, contravene the intention of the parties, and surely generate undue burdens on our trial courts.

As the legislature has failed to enact statutory law that conflicts with the State Court’s ruling, this area of law will likely stay on the books and protect the expectations of those who have a living arrangement outside of marriage.

I’m not married, but living with my partner. Do I have property rights?

General California Community Property Law

California is a community property state.  This means that all property acquired during marriage will be community property, with few exception, and each spouse will retain a one half interest in the property.  However, this rule is not absolute.  This general rule can be rebutted by “tracing” the funds used to purchase the property to a separate property asset.  One example is where husband purchases a home during the marriage with funds that came from his residence prior to marriage.  He would have a separate property interest in the newly acquired real property because of the use of his separate property funds.

Why Is the Community Entitled to An Interest In A Separate Property Business?

Separate property includes property acquired prior to marriage, after permanent separation, or by gift, inheritance.  Typically, income from separate property is separate, but the fruits of the community’s expenditures of time, talent, and labor are community property.

So why is this important as it relates to your interest in a separate property business?  Where community efforts increase the value of a separate property business, it becomes necessary to quantify the contributions of the separate capital and community effort that increase in value.  The necessity of apportionment arises when, during marriage, more than minimal community effort is devoted to a separate property business.  The community is entitled to the increase in profits attributable to the community endeavor.  Accordingly, courts must apportion profits derived from community effort to the community, and profits derived from separate capital are apportioned to separate property.  In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 850-852.

Distinction Between A Business Where Value is Derived by Community Efforts Verses Separate Property Investment/Capital

Following this change in law, California courts have developed two alternative approaches to allocating business profits and have endeavored to adopt that formula which is most appropriate and equitable under the circumstances.  Under the Pereira approach, community income is defined as the amount by which the actual income of the separate estate exceeds the return which the initial capital investment could have been expected to earn absent the spouse’s personal management.  Beam v. Bank of America (1971) 490 P. 2d 257.  Under the Van Camp approach, the community is allocated a share of the increased value equal to the fair value of the community services less amounts withdrawn to meet family expenses.

So, depending on varying circumstances of each case, the court will apply the formula that best meets the character and nature of the separate property business and the principal factor contributing to its increase in value.

A.    Value of Business Primarily Derived From Investment

One example of where the increase in value was primarily a result of investment was in Schulman v. Schulman (1976).  The business owner spouse was the sole owner and proprietor of a wholesale and retail meat business.  The court applied the Van Camp formula because it attributed the increase in value of separate property business to the population growth in the area during the time of the marriage, and the business’s expansion made possible by the SBA loan rather than the business owner’s personal efforts being principally responsible for the growth and continuity of the business.

 B.     Value of Business Primarily Derived From Community Efforts

Conversely, in Patrick v. Alacer Corp (2011) 201 Cal. App. 4th 1326, the court applied the Pereira method because the court held that business profits were principally attributed to efforts of the community.  Alacer Corporation was maker of the popular Emer’gen-C vitamin supplements and the company indisputably increased in value during the marriage, and the owner spouse put “much more than minimal efforts into the business.”

Once a California court ascertains the amount of community income, through either the Pereira or the Van Camp approach, it deducts the community living expenses from community income to determine the balance of the community property.  It follows that the community portion is significantly less where the Van Camp formula is applied.

So Which Formula Is Best For Your Case?

The non-owner spouse typically argues in favor of Pereira claiming that the growth and expansion of the separate property business of the owner spouse during the course of marriage was due to his effort, skill, talent and community labor.  On the other hand, the owner spouse will argue in favor of Van Camp claiming that the growth of business was principally due to external factors.  Although, the courts have made it clear that there is no general rule and the application of either theories would vary depending on the circumstances of each case, it is a logical conclusion that Pereira will be used where the business is labor intensive and/or requires special talent of the owner.  Van Camp will be most effective where the growth is due to changes in population, economy and trend.

Disclaimer:  Nothing in this blog should be considered legal advice.  Without considering the particular facts of your case, attorneys with Pocklington Law Offices are unable to unable to offer advice as it relates to a person’s particular case.  If you wish for our office to consider taking your case or to offer legal advice, please contact our office to schedule an appointment by calling (925) 295-7348.

Do You Have An Interest In Your Spouse’s Business?

The parental preference rule is the most common practice among most states. If both you and your spouse are presumed fit for child custody, the court initially recommends that you both agree to a mutual arrangement that will work best for your child. On the other hand, if neither you nor your spouse is fit for custody, custody may be awarded to a third party as may be determined by the court. Let’s take a look at some of the main types of child custody.

Physical Custody. Physical custody is a parent’s right to live with his or her child. The court may decide to assign joint physical custody to both parents or sole physical custody to one parent, always in the best interest of the child. The child primarily lives with the parent with sole custody with the other parent granted visitation rights.

Legal Custody. Parents charged with legal custody have the right and obligation to provide the proper upbringing of their child. They should make sure that the child’s physical, mental, educational, social, emotional or even spiritual needs, for example, are taken care of. Legal custody may be granted jointly to both parents or solely to one parent.

Joint Custody.  Normally, the most ideal option is joint physical and legal custody wherein both parents are mandated to decide what is best for the health, education, housing, legal, emotional and social needs of the child, among others. The court may also decide to grant joint legal custody to both parents but sole physical custody to one parent or alternate physical custody to both parents but sole legal custody to one parent. Whatever joint custody arrangements you and your spouse agree upon, what is important is that both of you are able and willing to share legal responsibilities and physical care of your child according to his or her preferences and needs.

Sole Custody. This is the traditional type of child custody where one parent is given full custodial rights to the child with the other parent mandated to give child support and having only visitation rights. The custodial parent possesses sole legal responsibility, physical care of the child and ultimate authority and control over the child to include sensitive issues like religious and social upbringing.

Split Custody. This custodial arrangement is applicable when there are two or more children involved. Under this custody type, a designated number of children stay with one parent while the rest stay with the other parent. In alternating periods as agreed upon, the two groups of children may switch residences. Each parent must assume full parental responsibility for the children while in his or her care.

Third Party Custody. The court may award child custody to a third party if both parents die, if one parent dies but the surviving spouse is unfit or if both parents are unfit due to a history of violence, alcohol addiction or drug abuse, for example. Possible persons qualified for third party custody are grandparents, uncles, aunts or stepparents.

What then is the best approach to a child custody battle? Custody of your child should be viewed by you and your spouse not as a battle but as a cooperative effort to secure the best interest of your child. Look for the best lawyer to help you go through the legal process and ensure a rosy future for your child.

If you need help in a child custody case in the San Francisco Bay Area, call Pocklington Law Offices for help at (925) 295-1304. We’re ready to help you achieve the best possible outcome for your family.

Types of Child Custody Agreements