Valentine’s Day – More Than Just a Box of Chocolates

By: Lena J. Marderosian, Esq.

February is the shortest month of the year but it has a lot to boast about, including Groundhog Day, Chinese New Year, and the birthdays of two great American presidents. If that were not enough, the birthdays of Abraham Lincoln and George Washington have been combined to create Presidents’ Day, a national holiday also celebrated in February. Yet, despite these notable events, the month of February is best known for Valentine’s Day, when Americans spend over $19 billion (yes, billion!) on candy, roses, expensive candle-lit dinners, and much more. Jewelers, chocolatiers and greeting card manufacturers heavily peddle their wares as aphrodisiacs, promising an evening of passion and romance. Yet, despite the blatant commercialism, Valentine’s Day is still the most romantic day of the year, when couples celebrate their love and appreciation for one another and the companionship, comfort, and moral support they enjoy in their relationship.  

But what happens when one partner is injured by the wrongful act of a third party and the non-injured partner can no longer enjoy the benefits of the relationship? If the couple is married, the non-injured spouse has the right to seek compensation by filing a claim for loss of consortium. Often thought to be a cause of action for the decrease or loss of sexual relations, loss of consortium is much more encompassing. It includes the loss of a wide range of spousal benefits such as love, companionship, comfort, assistance, affection, emotional support and society, all of which are considered a normal part of the marital relationship.  Not being able to go out to dinner or enjoy a movie together, having to do the household chores once done by the injured spouse, being solely responsible for the care of the children are just a few examples of a loss of consortium claim. However, a loss of consortium claim does not include a claim for loss of financial support from the injured spouse, or the loss of earnings of the non-injured spouse for having to give up her job to take care of her husband, nursing services provided, or the cost of hiring help to replace services that the injured wife would have performed, since these are all claims for which the injured spouse can recover. As one Justice on the California Court of Appeal explained, loss of consortium embraces, “ the moral support each spouse gives the other through the triumph and despair of life, and the deprivation of a spouse's physical assistance in operating and maintaining the family home. ” ( Ledger v. Tippitt (1985) 164 Cal.App.3d 635.) 

California courts have long held that companionship, emotional support, love, happiness and sexual relations have value. Moreover, the loss of these benefits in a marital relationship constitute real injuries for which monetary compensation may be awarded. Initially, only the husband was permitted to sue for loss of consortium because it was assumed that he had basically lost the services of his live-in housekeeper. Since the wife did not have an independent legal existence of her own, she had no right to sue in her own name. Even after women got the right to vote, the courts were reluctant to allow the wife to recover because it could constitute double recovery for the injured husband. As the old Virginia Slims commercial used to say, “we’ve come a long way, baby.” Thankfully, so have the California courts. However, some old-fashioned notions still remain, as no state -- including California -- permits a loss of consortium claim by a non-married couple, no matter the level of commitment. In order to bring a loss of consortium cause of action, the non-injured spouse must prove that he or she is legally married to the injured partner. 

What is a loss of consortium claim worth? Putting a value on such hard –to- define injuries is difficult, as there is no method or formula by which the amount of damages can be calculated. A loss of consortium claim is derivative to the claim of the injured spouse. That is, without injury to one spouse, the other has no loss of consortium claim. Typically, the more serious the injury is to the one spouse, the more valuable the loss of consortium claim will be to the other. Thus, jury awards range wildly, from zero to multi-millions of dollars. Each claim is unique as it depends on the injuries and the specifics of each marriage.

In order to determine the impact (or non-impact) of an injury on a marriage, the marital relationship needs to examined. If a lawsuit is filed, both spouses will be deposed. During their depositions, they can expect to be questioned about every aspect of their marriage both before and after the injury, including their day to day activities. Questions about the amount of time spent together, whether they have had periods of separation, whether they have been to counseling or therapy, had any affairs or sexually transmitted diseases, are all relevant -- and those are just the easy questions. The difficult questions are even more invasive and concern the most personal and intimate details of the marriage, including the “how, when, where” of the parties’ sexual relations as well as other intimate conduct, and how these activities are different after the injury than before. These depositions can be very uncomfortable, awkward and embarrassing, often to both the deponents and the attorneys as well.

So, when celebrating this Valentine’s Day, remember it’s not just about gifts, candy and expensive dinners. Enjoy the spirit of the holiday and be sure to take the time to appreciate all the things your special Valentine does for you. Happy Valentine’s Day!

Lena J. Marderosian is a graduate of the University of California, Los Angeles with a degree in History and a minor in English Literature. She obtained her law degree from Southwestern University School of Law, graduating on the Dean’s Honor List. 

Ms. Marderosian has over 35 years of litigation experience. She currently handles the defense of large, complex cases with catastrophic damages in both California state and United States District Court. In addition to handling her own cases through trial, she heads Bradley & Gmelich, LLP’s Law and Motion and Appellate Department. Ms. Marderosian has argued before the California Courts of Appeal in the Second Appellate District (Los Angeles and Ventura), Fourth Appellate District (Riverside and San Diego) and before the United States Court of Appeals for the Ninth Circuit. She also successfully opposed a Petition for Writ of Certiorari in the matter of Evans v. AT&T Corporation, MCI Corp. and Pacific Bell, Case No. 00-1527, on behalf of two of the largest telecommunications companies in the country at that time.

Ms. Marderosian is admitted to practice in all courts of the State of California and is admitted to practice in the United States District Court for the Central, Eastern, Northern and Southern Districts; the United States Court of Appeal, Ninth Circuit; and the United States Supreme Court. She has also been named to the list of Southern California Super Lawyers for four years.

Partners Barry Bradley & Jaimee Wellerstein will be presenting the legal aspects portions at the California Association of Licensed Security Agencies, Guards & Associates ( CALSAGA ) seminars in Northern California to benefit Private Patrol Officers (PPO) on February 21 and 22, 2018. The topics will include Licensing, Financials, Service Delivery, Contracts, Human Resources, Staffing, Insurance and more. This class serves as a fantastic way for those new to operating a security guard company (PPO) or those who desire a refresher on the legalities and complexities of running a PPO to gain much needed insight.

Kamil Canale, partner at Bradley & Gmelich LLP, spoke at the San Fernando Valley Chapter ASIS on February 13, 2018 at the Glendale Galleria. She discussed many of the new California laws signed by governor Jerry Brown that went into effect January 1, 2018.  For more information on these new laws, please visit our January 2018 Legal Update posted on our website at January 2018 Legal Update.

Partner Thomas P. Gmelich, Esq. spoke at the Association of Southern California Defense Counsel's (ASCDC) 57th Annual Seminar on Thursday, February 8, 2018. His presentation was entitled, "Depositions in the 21st Century - learn the how, when, and why of video-taped depositions and how to use and defend them at trial."

Congratulations to Bradley & Gmelich LLP Super Lawyers Honorees! Founding partners Barry A. Bradley and Thomas P. Gmelich have been chosen for the 13th and 12th year in a row, respectively. This is a honor bestowed upon only 5% of the lawyers in Southern California and we proudly send them our congratulations for a job well done!

Jim F. Saunders

Mirth I. White

Congratulations to attorneys Tom Gmelich, Jim Saunders and Mirth White for a successful motion for summary judgment for our client, a hotel / resort in the Los Angeles area. Plaintiff, who was working as an audio-visual technician for a subcontractor to the hotel / resort, fell 12-15 feet off of the roof of an exterior pool room while removing lighting equipment after an event. Plaintiff claimed that an exterior floodlight that illuminated his work area suddenly shut off as he was about to descend from the roof causing his fall. He further contended that the hotel was negligent because either the floodlight was improperly set on a timer such that it shut off at the time of the incident or that a hotel employee negligently turned off the flood light while plaintiff was working on the roof.  

Plaintiff suffered injuries to his right knee, cervical spine and lumbar spine and underwent an arthroscopic surgery to the knee, two lumbar fusions at L4-L5, and a cervical fusion at C6-C7.  Medical expenses and the workers compensation lien exceeded $305,000 and plaintiff had not returned to work for almost 4 years. We filed a motion for summary judgment arguing that the Privette-Toland doctrine was a complete defense to all claims and that the hotel / resort did not engage in any conduct that affirmatively caused or contributed to the incident.

Go Blue and White! Bradley & Gmelich LLP is proud and excited to cheer on its first ever basketball team. Employees and family of employees attempt to dribble their way to a winning season. We'll keep you posted!

Congratulations to Litigation Secretary, Martha Gonzalez on the birth of her first grandchild, Logan Rey Lopez. Logan was born January 23, 2018 weighing in at 5 pounds, 15 ounces and 18.5 inches long. Congratulations Martha!