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Civil Action Podcast

Kabateck LLP presents Civil Action with California trial lawyers Brian and Shant. Join us as hosts Brian Kabateck and Shant Karnikian analyze legal issues and developments in California law affecting plaintiff lawyers and their practices. The show presents a summary of recent appellate decisions affecting all area of plaintiff-side civil litigation, from personal injury to employment, from landmark cases to changes in procedure. This weekly series keeps you informed on a variety of hot legal topics from throughout the state. This is Civil Action.


BONUS CONTENT: Interview with Elise Sanguinetti at the CAALA Convention in Las Vegas

  • Brian and Shant sit down with Elise Sanguinetti, a founding partner at Arias Sanguinetti Wang & Torrijos, LLP. Elise just completed her term as the president of the American Association for Justice, and she was previously president of both the Consumer Attorneys of California and the Alameda Contra Costa Trial Attorneys Association.  Elise discusses her concerns regarding forced arbitration, the political landscape, and the influences that helped mold her into one of the best trial attorneys in California. More information about Elise Sanguinetti is available here:


Episode 19: Armenian Genocide Insurance Litigation: Bad Faith Lawsuits Brought in the Wake of the First Genocide of the 20th Century

  • Brian and Shant take an in depth look at the history, successes, and challenges faced in litigating insurance bad faith cases brought on behalf of descendants of victims of the Armenian Genocide.  Brian shares his experiences handling these cases and talks about the political ripple effects which reached the highest levels of public office. As Armenian-Americans, Brian and Shant discuss the significance of these cases and the legislative and judicial landscape surrounding genocide recognition efforts.  This episode was recorded just days before the United State House of Representatives passed House Resolution 296 on October 29, 2019. The long-delayed resolution recognizes the massacre of 1.5 million Armenians at the hands of Ottoman Turkey as an act of genocide, and condemns Turkey’s efforts to deny recognition of the Genocide. 


BONUS CONTENT: Interview with James DeSimone at the 2019 CAALA Convention in Las Vegas

  • Brian and Shant interview civil rights trial lawyer V. James DeSimone (“Jim”). Jim tells us about his cutting-edge practice and the impact his work has had on society.  Jim also discusses important changes to California civil rights laws. Jim is an accomplished trial lawyer dedicated to representing individuals in civil rights cases, with an emphasis on employment discrimination and harassment, employment wage and hour class action cases, police misconduct and brutality cases, including wrongful death, excessive force, and false arrest cases, and personal injury cases. More information about Jim DeSimone is available here:


BONUS CONTENT: Interview with Christine Spagnoli at the CAALA Convention in Las Vegas

  • Brian and Shant catch up with Christine Spagnoli, a partner of Greene, Broillet & Wheeler in Santa Monica, specializing in representing plaintiffs in product liability, personal injury and legal malpractice actions.  Chris shares her story of how she came to spear-head litigation to protect consumers from injuries and deaths involving vehicle defects. Chris has obtained many multimillion-dollar verdicts, including the 1999 General Motors case in which a defective fuel tank was found responsible for the burn injuries of two adults and four children, where the jury returned with a landmark $4.9 billion verdict. More information about Chris Spagnoli is available here:


Episode 18: More Bad Decisions Regarding Arbitration

  • Brian and Shant discuss the possibility of using conversion as a means of recovering wages, some clarity regarding 998 offers, arbitrability of UCL claims, dangerous conditions of public property, the inability to arbitrate ERISA claims, and the rules regarding consenting to the jurisdiction of a magistrate judge.


BONUS CONTENT: Interview with Genie Harrison at the 2019 CAALA Convention in Las Vegas

  • Brian and Shant speak with Genie Harrison, a civil rights and employment attorney with a reputation for being a fierce advocate for victims of sex abuse. Genie discusses some of the challenges women face in all careers (including in the practice of law), proposes changes we should all fight for, and makes a big announcement. In 2018, Genie Harrison was recognized by the Daily Journal as one of the Top 100 Lawyers in California — across all categories of law. She is currently the First Vice President of CAALA, and in 2021 will be the fifth female President of the organization in its 70thAnniversary year.More information about Genie Harrison is available here:


BONUS CONTENT: Interview with Robert Simon at the 2019 CAALA Convention in Las Vegas

  • Brian and Shant talk with Robert Simon, co-founder and lead trial lawyer at the Simon Law Group, at the CAALA Conference 2019 in Las Vegas. Bob shares his story of how he got started, his efforts to empower young trial attorneys, and important cases he has handled that paved the way for the basic tools used in personal injury cases. Bob Simon and his Justice Team have obtained record-setting verdicts and landmark results for injured parties. Bob also hosts his own awesome Justice Team Podcast, featuring other great trial attorneys. More information about Bob and his Justice Team can be found here: the Justice Podcast can be found here:


Episode 17: The End of Labor Code Section 558; Bad News for California Employees

  • Brian and Shant discuss the California Supreme Court eliminating employees ability to seek unpaid wages under Labor Code section 558, an important decision regarding 128.7 sanctions, using statistical sampling to establish liability for purposes of class certification, liquidated damages in a settlement agreement, and attorney disqualification.


Episode 16: Notice Prejudice Case; Removal Case; Privacy Rights; Driver Privacy Protection Act; Arbitration of UCL Claim; Trail Immunity

  • Brian and Shant discuss a Notice Prejudice case (one of the very important principles in Insurance Law, a Removal Case involving Federal Court, a Privacy Rights case versus Facebook that deals with standing & injury issues, a Driver Privacy Protection Act, an arbitration of UCL claim and how you can’t arbitrate it, and finally a type of governmental immunity called Trail Immunity.


Episode 15: Small Inflatable Pools; Good News For Lawyers Handling Consumer Class Actions

Brian and Shant discuss some good news (for a change) for consumers regarding class actions.

Cases include:

  • Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955: The California Supreme Court held that the ascertainability element of class certification does not require the ability to give notice to every single class member.
  • Nguyen v. Nissan North America, Inc. (9th Cir. 2019) 932 F.3d 811: The 9th Circuit Court of Appeals held that the Plaintiff’s theory of liability—that Nissan’s manufacture and concealment of a defective clutch system injured class members at the time of sale—is consistent with his proposed recovery based on the benefit of the bargain. It doesn’t matter

Brian and Shant also discuss the “trivial defect” doctrine.


Episode 14: Beating MSJ in a Discrimination Case; Successfully Fending Off Arbitration By Arguing Waiver

Brian and Shant discuss a number of cases that set generally good precedent for plaintiffs. They cover cases about FEHA claims arising out of the conduct of an coworker, challenges in a premises liability case involving criminal conduct, successfully arguing a defendant waived right to arbitrate, and forum selection clauses that violate public policy.

Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549 and Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568:

  • Genuine issue of material fact as to whether employee was constructively discharged by alleged demeaning criticisms by supervisor precluded summary judgment as to discrimination cause of action;
  • Genuine issue of material fact as to whether supervisor’s alleged conduct was motivated by discriminatory animus based on employee’s national origin and age precluded summary judgment on employee’s harassment cause of action;

Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654:

  • Owner’s general knowledge of possibility of violent criminal conduct on premises was not in itself enough to create duty to provide protection from foreseeable third party crime;
  • Prior occurrence of a burglary, a broken window next door to shopping center bar, and an assault for which the police requested security camera footage were insufficient to render third party criminal conduct sufficiently foreseeable, as would be required to impose duty on owner to protect musician from assault; and
  • Owner’s lack of precise system to track problematic occurrences on property did not breach owner’s duty to exercise reasonable care to discover the occurrence or likely occurrence of criminal acts.

Newirth  v. Aegis Senior Communities, LLC (9th Cir. 2019) 931 F.3d 935

  • Residents of senior living communities brought putative class action against operator of communities, alleging violations of California’s Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL), and Welfare and Institutions Code. Following removal, the United States District Court for the Northern District of California denied operator’s motion to compel arbitration. Operator appealed. The Court of Appeals held that operator waived its right to compel arbitration because (1) it knew of its right to arbitrate (2) it engaged in intentional acts inconsistent with that right, and (3) Plaintiff was prejudiced by having to litigate the case before Defendant filed the motion to compel.

Gemini Technologies, Inc. v. Smith & Wesson Corp. (9th Cir. 2019) 931 F.3d 911

  • Forum selection clause in unenforceable when it violates the public policy of a state in which the case is pending.

Cole v. Hammond (2019) 37 Cal.App.5th 912

  • Five year rule is jurisdictional.
  • Defendants’ right to mandatory dismissal prevails over plaintiff’s later asserted right to voluntarily dismiss.

Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954

  • specific provision of Rental Car Agents Act, mandating that insurer file copy of policy issued to rental company with Department of Insurance, controlled over more general obligation of insurer to provide an insured with a policy which states the premium, and therefore insurer which issued coverage to rental car company was not required to make sure that policy stating premium was also provided to customers;
  • rental company was not a general agent of insurer, and thus funds received by rental company as customer insurance payments could not be imputed to insurer as premium, in determining whether insurer charged and collected more than the statutorily-approved rate;
  • rental company was not precluded from charging customers more for insurance than premium which rental company paid to insurer; and
  • rental company’s self-insured retention did not make company an insurer, as would subject company to rate approval requirements.


Episode 13: Breach of Confidentiality Clause; J&J Talc Case; Personal Injury Case; A Rogue Juror; Abuse Case; Insurance Case & Interpreting Contracts

  • Brian and Shant discuss a slew of bad plaintiff cases today, including a California Supreme Court opinion that arose out of the breach of a confidentiality clause and settlement agreement (AKA the worst case scenario for plaintiff lawyers), J&J talcum case, a personal injury case and how to perfect your appeal, a rogue juror, an abuse case with no recourse, and an insurance case and how to interpret insurance contracts.


Episode 12: FEHA; Attorneys Fees in Lemon Law Cases; Medicare in Personal Injury Cases; Attorney Fees in Civil Rights Action; RFAs; Burden of Proof for Reducing Future Damage Awarded

  • Brian and Shant discuss a FEHA cases and new trial motions and standards for reviewing those, attorney’s fees in Lemon Law cases, a cautionary tale and reminder about medicare/Medi-Cal leans in personal injury cases, an attorney fee case risen out of civil rights action, RFA’s and actually using them (the costs of proving truth of something that was denied in RFA), and the burden of proof for establishing and/or reducing future damage awards to present cash value.


Episode 11: Facebook & The Telephone Consumer Protection Act; Lawyers Getting Petty; Professional Negligence & CPAs; Clarifying Rule 4-2; Manhattan Community Access Corp Case

  • Brian and Shant discuss Facebook and the Telephone Consumer Protection Act, relief under 473 (relief for a default) aka lawyers getting petty, professional negligence & CPA’s screwing up with taxes and the statutes of limitation that governs that, a rule that clarifies Rule 4-2 which involves contacting represented parties (who counts and who does not), and a Supreme Court case called Manhattan Community Access Corp., which involves the 1st amendment.


Episode 10: Case Certification; Insurance Case; Decertification and Standing; UCL Claim; Civility and the Law

  • Brian and Shant discuss case certification for purposes of a nationwide class settlement, a California Court of Appeal for the 4th District’s duty to defend an additional insured in an insurance case, A 9th circuit case decertification & standing, and strict requirements for it, a UCL claim in an employment case, and civility & the law, and motions to get relief from default. Have questions for us? You can reach us at 213-217-5000, or visit our website at


Episode 9: Waiving Right to Arbitration; Handling Insurance Company Claim; 9th Circuit Court of Appeal Arbitration; CAFA; SoCal Gas Leak Case; Mandatory Fee Arbitrations Over Attorney Fees

  • Brian and Shant discuss a defendant waiving their right to arbitration, handling a claim with an insurance company and not signing over rights, Ninth Circuit Court of Appeal arbitration, Class Action Fairness Act, Porter Ranch & SoCal gas leak case, and mandatory fee arbitrations & whether or not it’s appealable when you get an order denying trying to compel arbitration over attorney’s fees.Have questions for us? You can reach us at 213-217-5000, or visit our website at


Episode 8: Class Action Fairness Act; Treble Damages Under Penal Code; Failure to Prosecute; Picking Off Class Representatives; One-Way Attorney Fee Statute

  • Brian and Shant discuss a United States Supreme Court Case that has to do with the Class Action Fairness in Removal Statute, treble damages under penal code, failure to prosecute during a case in trial, picking off class representatives from First District Court of Appeal, and one-way attorney fee statute under labor code.

Episode 7: Arbitration; Primary Assumption of Risk; Insurance Cases

  • Brian and Shant discuss three cases involving arbitration, primary assumption of risk (The Fireman’s Rule), and an insurance case from The United States Court of Appeals for the Ninth Circuit.


Episode 6: Juror Misconduct & Collateral Source Rule; Forum Selection Clauses; 5 Year Rule in a “Death Knell: Doctrine; Uninsured Motorists Within an Umbrella Policy; PAGA & Claim Splitting 

  • Brian and Shant discuss juror misconduct and the collateral source rule, forum selection clauses, employment contracts, and a new statute that’s favorable to plaintiffs, two issues of first impressions regarding the five year rule in a “death knell” doctrine, uninsured motorist coverage in the context of an umbrella policy, and PAGA & claim splitting.


Episode 5: Good News in Trucking Employment Cases; Cautionary Tales About Deadlines

  • Brian and Shant discuss serving complaints on foreign governments, dealing with injuries sustained while working for a subcontractor, immunities of a school district, deadlines for giving notice of a medical malpractice claim, arbitration in interstate trucking, and TCPA claims.


Episode 4: SCOTUS Ruling in Epic Systems in PAGA Cases: Denying Class Certification; Religious Org. Exemption; Relief Under CCP 473b; Elder Abuse Cases; Deadlines for Removing Fed. Court Case

  • Brian and Shant discuss the application of SCOTUS’s ruling in Epic Systems in PAGA cases, requirements for an order denying class certification, Religious Organization Exemption in employment discrimination cases, relief under CCP 473b, the lack of requirement of special relationship in elder abuse cases, and deadlines for seeking removal of a case to federal court.


Episode 3: Cy Pres; Default Judgement PAGA Cases; Declarations in Malpractice; DQ of Lawyers in Partnership Disputes; Self-Insured Retention & Coverage; Liability of a Fraternity

  • Brian and Shant discuss cy pres in class action settlements, obtaining a default judgment in a PAGA case, expert declarations in malpractice cases, disqualification of lawyers in a partnership dispute, insurance coverage when insured fails to pay self-insured retention, and liability of a national fraternity for injuries sustained by a plaintiff at a local party.


Episode 2: Equitable Tolling, Piece Rate Work & Meal Breaks; Application of Forum Selection Clauses; Seeking Disqualification of Lawyers; Post-PAGA Actions

  • Brian and Shant discuss equitable tolling of class actions, piece rate work and meal breaks, trends in application of forum selection clauses, timeliness in seeking disqualification of lawyers, and attorney fees in settlement of PAGA actions.


Episode 1: Enforcing Arbitration Clauses; Challenging Judges; Expert Declarations; False Advertising Claims; Construction Defect Class Actions

  • Brian and Shant discuss trends in enforcing arbitration clauses, blowing deadlines to challenge a judge, importance of an expert declaration when opposing a MSJ, federal preemption in false advertising claims against drug manufacturers, and construction defect class actions.
    • Goonewardene v. ADP, LLC (2019) 6 Ca.5th 817: Employer can enforce an arbitration agreement between an employee and a staffing agency.
    • Sunrise Financial v. Superior Court (2019) 32 Cal.App.5th 144: Section 170.6 challenge was untimely because defendants filed the challenge more than 15 days after they made an appearance in the action by filing an opposition to the section 403 transfer/consolidation motion in Judge Wohlfeil’s department.
    • Fernandez v. Alexander (2019) 31 Cal.App.5th 770:. Court of Appeal found the declaration by a patient’s expert did not opine on issue of whether recommendation of cast rather than surgery caused increase to patient’s wrist injury, and thus did not create genuine issue of fact as to causation.