Appellate — continued from Previous Page
It affirmed the dismissal of Kelly’s
infliction of emotional distress claim against Seaman, finding that there was no showing that the emotional distress that Kelly ultimately suffered from being ostra- cized and retaliated against was caused by Seaman’s original tirade. Wrongful death; survival actions; abate-
ment; proper plaintiff. Adams v. Superior Court (Centinella Freeman Regional Medical Center) (2011) __ Cal.App.4th __ (2d Dist. Div. 5.)
Plainiff, Nancilee Adams, sued vari-
ous defendants for elder abuse, negli- gence and wrongful death. She asserted claims as the Administrator of the Estate of James C. Adams. In bringing the action she admitted that she did not represent the decedent’s heirs. Defendants moved
under sections 377.60 and 382 to abate the action, arguing that it should not pro- ceed unless all decedent’s heirs were joined in the wrongful-death claims, either as plaintiffs or involuntary plain- tiffs. Defendants argued that the estate’s survival claims should also be abated because they were inextricably inter- twined with the wrongful-death claims. The trial court granted the motion. The Court of Appeal granted plaintiff’s writ petition. The court held that, although the general rule is that all wrongful-death heirs must be joined in the wrongful- death action, this rule does not apply if the wrongful-death plaintiff is the dece- dent’s personal representative. Plaintiff was permitted to bring the action as the decedent’s personal representative, and
would essentially act as a trustee of the proceeds recovered for the heirs. It was therefore error for the trial court to abate the action. There was accordingly no basis to abate the survival claims either. Labor Code section 226.7, remedies for
failure to provide breaks and meal periods. United Parcel Service v. Superior Court (Allen) (2011) _ Cal.App.4th __ (2d Dist. Div. 8.) Labor Code section 226.7 requires an
mediation withJeffrey Krivis
www.firstmediation.com 16501 VENTURA BLVD., SUITE 606
ENCINO, CA 91436
90— The Advocate Magazine JULY 2011 ENCINO, CA 91436
www.firstmediation.com 16501 VENTURA BLVD., SUITE 606
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jkrivis@firstmediation.com TEL: 818.784.4544
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employer who fails to provide an employ- ee with a meal or rest period to pay that employee an additional hour of pay “for each work day that the meal or rest peri- od is not provided.” The issue presented is whether, if the employer fails to provide both a meal and rest period in a particu- lar day, is it liable for one additional hourly payment, or two, under section 226.7. The trial court held that the statute should be construed to require two pay- ments. Affirmed. The disjunctive state- ment in section 226.7, referring to “meal or rest period” signals that there may be two separate violations with a correspon- ding remedy of one additional hour of pay for each violation per day. But the ref- erence in the statute “for each work day” suggests a single payment per work day, regardless of the violation. The statute is ambiguous, so the court looks to extrinsic sources, such as its legislative history, to determine statutory intent. The court determined that the statute’s history was not completely clear, but it does suggest that the Industrial Wage Commission’s wage orders consistently provided a sepa- rate remedy for violations of the meal- period requirements and rest-period requirements. If the Legislature believed that the formulation in the wage orders did not accurately reflect the statutory intent, it could have amended the statute to clarify it, but never did so. The court also determined that allowing one premi- um payment for each type of violation accords with and furthers the public poli- cy underlying the meal and rest-break mandates. The court accordingly deter- mined that it was more reasonable to con- strue the statute as allowing up to two additional penalty hours per day, one for failure to provide a meal break, and one for failure to provide a rest break.
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