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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.

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.