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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 Mary Alexander at the 2019 CAOC Convention in San Francisco

Mary Alexander – Mary’s practice is comprised of product liability, toxic tort, auto accidents, pharmaceutical cases, and class actions.  With an undergraduate focus in science and an objective toward biology and toxicology, she has handled cases that address environmental and workplace risks associated with the use of dangerous chemicals.  Mary recently completed a 19-year long journey trying a matter involving led-based paint. Filed in 2000, she successfully pursued paint companies that manufactured, sold, and promoted led-based paint for use in homes and work environments.  More information on Mary Alexander is available here: https://maryalexanderlaw.com/

 

Episode 27: Arbitration Agreements; Fair Credit Reporting Act; Standing Under Article III; Right to Administrative Remedies; Distinctions Between Procedural & Substantive Unconscionability

Brian and Shant discuss the following cases:

  • Monster Energy Company v. City Beverages LLC: When must the arbitrator disclose information regarding their financial interest in the arbitration company, and whether an unfair advantage exists when the arbitration company has handled numerous arbitrations for the advantageous party.
  • Nayab v. Capitol One Bank: What determines an “injury” under Article III when a consumer’s credit report is run without prior approval?  And, what can the consumer do to prevent that conduct in the future?
  • Stafford v. Attending Staff Association of LAC & USC Medical Center: Whether an elderly physician forfeited his right to administrative remedies when he chose to file an unsuccessful action in superior court prior to concluding the administrative appeal process.   
  • Davis v. TWC Dealer Group: Not one, but three separate contracts of adhesion from a car dealership to a family tasked with running the finance department.  What constituted substantive and procedural unconscionability and the need for both to exist in order for the claim to survive.

 

BONUS CONTENT: Interview with Andy Spielberger at the 2019 CAOC Convention in San Francisco

Andy Spielberger – Partner at Balaban and Spielberger discuss his experiences ranging from the law of national treasures to fighting insurance companies.  Andy discusses his love for the movie Amadeus, his experiences traveling the world as the product of a military family, and how he and Daniel Balaban started their practice.  More information about Andy Spielberger and his team can be found here: http://balaban-spielberger.com/

 

Episode 26: Attorney Referral Services; Release of Liability in Self-Storage Facilities; Motion for Reconsideration Re Choice of Law; Joint Employer Doctrine

Brian and Shant discuss the following cases:

  • Legal Match.com Matter: The attorney defendant was sued by a legal referral website for unpaid bills, but counterclaimed arguing that the contact was illegal and therefore unenforceable because the company was not registered with the State Bar as a referral service. The website argued that they are not a referral service because do not screen potential clients, but rather just provided a contact list. The Court of Appeal rejected the website’s argument.
  • Karnofsky v. At Your Door Self-Storage: Plaintiff signed agreement with storage facility that he assumed responsibility. Storage facility also offered insurance to cover for risk of loss. The court finds that this behavior is a legal shifting of the risk and Plaintiff cannot proceed in his lawsuit for claims of water damage against storage facility.  
  • Chen v. Los Angeles Truck Centers: Fatal bus accident involving a tour bus where a California driver from a California tour company leaves from Nevada to Arizona. The tour bus was sold by an Indiana manufacturer who was originally named in the lawsuit.  Brian and Shant dissect this rather perplexing law-school-exam-like fact pattern to analyze the Court’s conclusion that Indiana law governs the case. The Court holds that the law governing the case at the outset of the litigation remains the applicable law even if a party from that state is subsequently dismissed. 
  • County of Ventura v. Public Employment Relations Board:  SCIU was to organize non-physician employees at a private medical center in Ventura.  The Public Employment Relations Board reasoned that the clinic employees are joint employees of the county.  The county argues that the employees are private and are not entitled to unionize. Ultimately, the control factor is the main issue – if the entity retains control over the employer it looks to factors to determine the level of control over the employee.

 

Episode 25: Design Immunity; The Consumer Legal Remedies Act (CLRA) and Who Qualifies as a Consumer; Standing to Appeal a Judgment in a Class Action; Attorney Fees & the Cost of Litigation

Brian and Shant discuss the following cases:

  • Dobbs v. City of LA (Convention Center): In terms of design immunity, to determine whether discretionary authority applies, a question of law, the Court states that as long as reasonable minds can differ, discretionary authority can be provided.  The Plaintiff lost when arguing that the design of a bollard, a sturdy pillar used to prevent access to a structure, created a dangerous condition.
  • Kalta v. Fleets 101, Inc.: Kalta purchased a vehicle through his business that was for personal use and as a result, Defendant argued that Kalta was no longer a consumer and therefore does not have standing to sue under the CLRA.  However, the Court of Appeal held any person who acquires goods for personal use is a consumer and thus has standing. 
  • Eck v. City of LA (DWP): An objector at a final settlement approval hearing must have first filed a Motion to Vacate the settlement or Motion to Intervene, and if not, is not considered a party and does not have standing to appeal. 
  • Hyundai v. Morris: It is inappropriate and an abuse of discretion to tie an attorney fee award to the amount of the prevailing parties’ damages or award.  As long as the attorney fees are reasonable, fair, and justified, the fees are appropriate.  However, the attorney has a responsibility to explain the details about the hours worked.  Brian provides further insight by adding how the cost of litigation has routinely affected the issue of attorney fees.

 

Episode 24: CIGA and the Impact on Medicare Payments; Federal Torts Claims Act (FTCA); Indemnification of Additional Insurers; Legislative Difference Between “Rate of Compensation” and “Rate of Pay”

Brian and Shant discuss the following cases:

  • CIGA v. Azar, Sec. of HHS: When Medicare has a primary claim against an insured
    party and the insurer becomes insolvent, state-mandated CIGA steps in but as an
    insolvency insurer not a secondary payor.
  • Kim v. United States: Two young boys fall victim to a deadly outcome when a tree
    limb breaks loose while camping in Yosemite. Unfortunately for the family, the FTCA
    bars claims deemed a discretionary function of federal officials.
  • Target Corp. v. Golden State Insurance: When an additional insurer seeks
    indemnification, does the merit of a claim determine the outcome when the nature of
    the claim is beyond the parameters of the indemnification agreement.
  • Ferra v. Loews Hollywood Hotel: A hotel bartender argues that compensation
    provided to her for missed breaks should include the full value of the hours worked or
    the premium, inclusive of non-discretionary bonuses and gratuities.

 

BONUS CONTENT: Interview with Taylor Rayfield at the 2019 CAALA Convention in Las Vegas

Brian and Shant interview Taylor Rayfield, a trial attorney at Greene Broillet & Wheeler, LLP. Taylor focuses on many aspects of plaintiffs’ litigation but has found a passion in litigating cases that involve sexual abuse. Taylor was recently named as a finalist for CAALA’s Rising Star Award, and was awarded the 2018 CAOC Street Fighter of the Year Award for settling a school sex abuse case. Taylor discusses how she discovered her passion for representing victims of sexual abuse and how she has learned to be a better trial attorney from the senior attorneys who helped guide her throughout her career. More information about Taylor Rayfield can be found here: https://www.gbw.law/team/taylor-rayfield/

 

Episode 23: Legal Malpractice Cases; The Joint Employer Doctrine; The Future of Dynamex and the Gig Economy

In this episode, Brian and Shant discuss the following cases:

  • Sharon v. Porter: Establishing standing in a legal malpractice cases, the statutory framework of the statute of limitations, and the importance of specifying the amount or filing a statement of damages along with a default judgment.  
  • Sprengel v. Zbylut: Implied attorney-client relationships and the distinctions between how it applies to a relationship with the shareholders of a corporation and the corporation itself.  
  • Henderson v. Equilon/Shell Oil: The Joint Employer Doctrine and the definition of “suffer and permit” from the landmark case of Martinez v. Combs.  The ABC Test in Dynamex and how it applies to franchisees and franchisors. 
  • Gonzalez v. San Gabriel Transit: Brian and Shant discuss whether the Dynamex Decision applies to claims retroactively, followed by a discussion of the future of the gig economy.

 

BONUS CONTENT: Interview with Michael Childress at the 2019 CAALA Convention in Las Vegas

  • Brian and Shant sit down with Michael Childress, the newest attorney to join the Kabateck LLP team. Michael Childress focuses his practice on protecting and enforcing the rights of policyholders. Since 1981, he has negotiated, adjusted and prosecuted insurance claims arising in 40 states, successfully coordinating thousands of investigations and working with experts from many fields. Michael discusses the history of first party property insurance claims, and how almost all claims are severely underpaid. Michael shares his advice for holding insurance companies accountable and the importance of reading and understanding an insurance policy.

 

Episode 22: Lawyers Trying to Fend Off Bad Reviews; Narrowing of the Joint Employer Doctrine; Challenges in Certifying a Class

Brian and Shant discuss the following cases:

  • Salazar v. McDonald’s Corp.: Brian and Shant look at a 9th Circuit case involving the the Joint Employer Doctrine as it applies to a franchisor’s control over employees working for a franchisee.
  • Modaraei v. Action Property Management, Inc.: Brian and Shant discuss a holding from the California Court of Appeal in a misclassification class action where the Court affirmed the denial of class certification based on issues of predominance and superiority. The record contained evidence sufficient to support the trial court’s finding that variations between the hundreds of properties the 228 putative class members were responsible for would command individual inquiries. Similarly, the evidence to support the trial court’s superiority determination was largely the same as evidence supporting the predominance determination.
  • Abir Cohen Treyzon Salo, LLP v. Lahiji: After a client fired her attorney and his firm, the firm placed a lien on the client’s further recovery. The former client’s daughter then wrote a potentially defamatory review online. The firm them filed suit against the client’s daughter for defamation. The Court of Appeal affirmed the trial court’s grant of the daughter’s motion under the anti-SLAPP law. The court agreed with the trial court’s conclusion that plaintiffs did not make a prima facie showing that the daughter was legally responsible for the Yelp review postings that underly their defamation claim.
  • Garcia v. Myllyla: Nine individual tenants prevailed in a jury trial against former owners of an illegally operated building on claims stemming from uninhabitable conditions in the building. Defendants were owners of a two-family residential building that they rented as 12 separate units. The Court of Appeal affirmed and held that the owners forfeited their argument that plaintiffs failed to introduce evidence of net worth; substantial evidence supported the jury’s finding that defendants engaged in conduct warranting punitive damages; the punitive damages were not excessive; sufficient evidence supported the jury’s award of noneconomic damages; the trial court acted within its discretion in declining to offset damages with the amounts from prior settlements; and defendants failed to show that the jury’s verdict was a result of misconduct or unfair prejudice.

 

Episode 21: A Dramatic Reading of Steinbeck; An Evangelist Grandmother’s Relationship with Her Granddaughter; Compelling Arbitration and Judicial Reference; Honolulu Discount; The Five-Year Trial Rule

In this episode, Brian and Shant discuss the following:

  • The Estate of John Steinbeck: Brian and Shant do a dramatic reading of a case arising out of John Steinbeck’s estate. 
  • Crouch v. Trinity Christian Broadcast Center of Santa Ana: A look at whether a familial relationship can be used to temper the legal impact of comments used to establish a claim for intentional infliction of emotional distress.  
  • JH Boyd v. Kenneth Robert Boyd: Brian and Shant discuss the direct appealability of a denial of a Motion to Compel Arbitration and the distinctions between that and a Motion to Compel Judicial Reference. 
  • Roberts v. City/County of Honolulu: A discussion about the two-pronged approach for calculating statutory attorney fees for handling Civil Rights cases.  The 9th Circuit held that a lawyer engaged in dual tracking who sets out to settle a legal matter while simultaneously working on a preliminary injunction in the same matter is deemed to recover full attorney fees for excellent results. 
  • In Re Alpha Media Resort Investment: The steadfast five-year window (C.C.P. 583.310) to bring a matter to trial may still provide for exceptions under certain circumstances.  Brian and Shant discuss these unique circumstances. 

 

BONUS CONTENT: Interview with Jake Courtney at the 2019 CAALA Convention in Las Vegas

Brian and Shant sit down with John K. Courtney, a trial attorney with Girardi & Keese who works on a variety of different areas of practice including aviation, mass tort, and insurance bad faith. Jake has successfully litigated cases wherein he has won verdicts in excess of $20 million, and has settled matters in excess of $70 million. Jake emphasizes the importance of young attorneys getting trial experience at an early stage of their career to better equip them for the developing legal landscape.  Jake is concerned with access to justice with regard to the rising cost of litigation which potentially reduces the consumer’s right to trial by jury.  More information about Jake Courtney is available here: https://www.girardikeese.com/Attorneys/John-K-Courtney.shtml

 

Episode 20: Procedural & Substantive Unconscionability of Arbitration Agreements; California Homeowners Bill of Rights; Class Action “Fairness” Act; Reversing Award of Attorney fees; Litigation Privilege

In this episode, Brian and Shant discuss the following:

  • OTO v. Kho: An arbitration agreement ruled void and unenforceable due to unconscionability.
  • Lopez v. Bartlett Care Center: A wrongful death matter that confronts the issue of agency authority and substantive unconscionability.  The Court held that an arbitration agreement signed by a daughter on behalf of her mother was procedurally unconscionable because the mother was not present when the daughter signed the agreement where the care center asserted the contrary.  Moreover, the Court held the agreement substantively unconscionable because the provisions in the agreement were substantially one-sided.
  • Bustos v. Wells Fargo: A close look at the provisions of the California Homeowners Bill of Rights (CABOR) and what remedies it provides.  The Court held that the bank was in violation of the CABOR and in response granted injunctive relief in the form of a Temporary Restraining Order (TRO) in addition to $4,200.00 in attorneys fees.  Wells Fargo argued that the plaintiff was not entitled to injunctive relief because the matter was not finalized based upon the grant of the TRO and therefore not a prevailing party.  However, the Court disagreed and found that a TRO is a Preliminary Injunction and therefore Plaintiff is in fact a prevailing party.
  • Arias v. Residence Inn by Marriott: A case dealing with an employment class action and the implications of the Class Action Fairness Act (CAFA) for the purposes of removal and remand.
  • Mancini Associates v. Schwetz: A look at an award of attorney fees arising from the breach of an agreement.
  • Davis v. Ross: A dispute over a disabled parking spot leads a woman to a felony vandalism conviction.  She then sues the victim of her vandalism and loses because of the principle of Litigation Privilege after a Motion for Judgment on the Pleadings.  She argued the concept of spoliation of the evidence and the Court ruled that the argument only applies to non-communicative conduct and is also subject to the Litigation Privilege.

 

BONUS CONTENT: Interview with Holly Boyer at the 2019 CAALA Convention in Las Vegas

Brian and Shant have a conversation with Holly Boyer, a partner at Esner Chang & Boyer and is certified by the State Bar of California’s Board of Legal Specialization as an Appellate Specialist. Holly was recently awarded the “Appellate Attorney of the Year” award by the Consumer Attorneys Association of Los Angeles. Holly’s work helped to establish a framework for negligence causes of action against public entity school districts regarding sexual abuse cases. She also recently worked with the Consumer Attorneys of California to address statute of limitations concerns with regard to sexual abuse cases.  Holly addresses the issues she faced with being a young attorney and how she found her path to appellate work. More information about Holly Boyer is available here: http://www.ecbappeal.com/pages/staff/1708

 

BONUS CONTENT: Interview with Geoff Wells at the 2019 CAALA Convention in Las Vegas

Brian and Shant interview Geoff Wells, a partner of Greene, Broillet & Wheeler in Santa Monica with an impressive record of verdicts and settlement in catastrophic personal injury cases. Geoff discusses the most impactful cases he has worked on and shares his advice for young lawyers. Geoff has obtained more than 250 multimillion-dollar verdicts and settlements in complex legal actions. Geoff was President of CAALA of 2014 and dedicates his spare time to supporting organizations like CAALA and CAOC. More information about Geoff Wells is available here: https://www.gbw.law/team/geoffrey-s-wells/

 

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: https://aswtlawyers.com/attorneys/elise-r-sanguinetti/

 

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: https://www.vjamesdesimonelaw.com/attorney-profiles/v-james-jim-desimone/

 

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: https://www.gbw.law/team/christine-d-spagnoli/

 

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: https://genieharrisonlaw.com/genie-harrison/

 

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: https://www.thesimonlawgroup.com/team/robert-t-simon/And the Justice Podcast can be found here: http://justiceteampodcast.com/

 

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 www.kbklawyers.com.

 

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 www.kbklawyers.com.

 

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.