Southern District Court of California Rules California Employers Do Not Have to Extend Multi-Month, Indefinite Medical Leaves of Absences to Employees

Author: Yousaf Jafri

Guest Editor: Jessica Heppenstall

June 8, 2018 10:23am

Overseeing employee medical leave of absence can be a headache for employers. Employers are not only required to comply with mandated leave requirements under the Family Medical Leave Act (“FMLA”) or California Family Rights Act (“CFRA”), they must also consider medical leave process in the context of disability discrimination and their obligation to provide disabled employees with reasonable accommodation.

Retaliation, Sexual Harassment, and Discrimination, through Wordless Communication – The Emoji Dilemma

Author: Tiffany Rouhi

Guest Editor: Jessica Heppenstall

June 8, 2018 10:19am

Wordless communication through emojis has become increasingly popular since the widespread use of smartphones. Emojis are pictographs used to express emotion, gestures, and objects. A study conducted in 2015 by the emotional marketing platform, Emogi, found 92 percent of the online population used emojis[1]. The report found the number one reason individuals use emojis was to accurately express their thoughts and for others to easily understand them[2].

United States Supreme Court Rules that Class Action Waivers Contained in Arbitration Agreements are Enforceable

Author: Regina Silva

Guest Editor: Jessica Heppenstall

June 8, 2018 10:15am

To employers’ delight, and disappointment to class action plaintiff attorneys, the United States Supreme Court finally issued its decision on the hotly debated issue of whether or not a class action waiver contained in an Arbitration Agreement violates the National Labor Relations Act (NLRA). Short answer: it does not!

Dismissal with Prejudice May No Longer be a Proper Remedy for Misjoinder of Parties in Action Alleging Common Pattern of Employment Discrimination

Author: Reece Román

Guest Editor: Jessica Heppenstall

June 8, 2018 10:12am

When multiple employees sue an employer in a single lawsuit based on a common pattern of discrimination, employers have historically relied on misjoinder of parties as a defense on demurrer. The recent decision by the Fourth Appellate District, Division Two, in Rosa Jensen v. The Home Depot, Inc., et al., 2018 WL 2441175, may force employers to change their defense tactics, at least at the early pleading stage.

New Howell Ruling Reinforces Importance of Medical Billing Expert

Author: Sarah Serrano

June 4, 2018 12:59pm

The California Court of Appeal, Second Appellate District, Division Six recently held in Pebley v. Santa Clara Organics, LLC et al. (2018) 232 Cal.Rptr.3d 404, that a plaintiff with health insurance through Kaiser who elected to treat outside of his available insurance plan was to be considered “uninsured” for the purpose of determining economic damages in his third party lawsuit.

June Women’s Initiative Spotlight: Tracey Angelopoulos

June 1, 2018 10:32am

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Promoted to Partner in Tyson & Mendes’ San Diego headquarters in January of this year, Tracey Angelopoulos leads a multi-attorney litigation team. With a focus on general liability and commercial litigation, Tracey has extensive litigation experience, including winning a 9th Circuit interlocutory appeal to vacate a preliminary injunction, saving her client $36 million per year. Tracey is also an avid endurance athlete, and has competed in numerous marathons, ultramarathons and Ironman triathlons. Learn more about her below.

PIP Application Deemed Confidential Work Product by Washington’s Court of Appeals Division III

Author: Kyle Jones

Guest Editor: Leslie Price

May 31, 2018 2:03pm

On April 3, 2018, Chief Judge Lawrence-Berrey delivered the opinion for the  Court of Appeals Division Division III in Monica Diaz Barriga Figueroa as guardian of Brayan Martinez v. Consuelo Prieto Mariscal, 414 P.3d 590.  The case involved personal injury to a minor child in late 2013.  Defendant was driving her minivan with her daughter in the passenger seat beside her.  Vehicles were parked on the right side of the road..  As she passed one of those vehicles, she heard a noise on the passenger side of her van and felt it move.  She stopped and exited the vehicle to find minor Brayan Martinez lying next to the van with his bicycle, his leg having been run over by the minivan’s tire.

Spoliation Claims in Washington State

Author: Doug Baier

Guest Editor: Leslie Price

May 31, 2018 1:48pm

What is spoliation?

Spoliation is defined as the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or future litigation once the duty to do so has been triggered.[1] A party seeking sanctions for spoliation first bears the burden of establishing the opposing party destroyed relevant evidence.[2] To determine whether spoliation occurred, the majority of courts use some variation of a three-part test.[3] This test includes (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind, and (3) the evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.[4]

Recent Appellate Decision Allows Insurance Adjusters to be Individually Liable for Bad Faith Claims

Author: Christina Toroyan

Guest Editor: Leslie Price

May 31, 2018 1:46pm

Recent Washington Appellate Decision Permits Policyholder to Sue Insurance Adjuster and Carrier for Bad Faith

Underlying Accident and Lawsuit

In Moun Keodalah, et al. v. Allstate Ins. Co.et al., No. 75731‑8-I, 2018 WL 1465526 (Wash. Ct. App. Mar. 26, 2018), an underinsured motorcyclist driving 30-44 miles above the speed limit struck plaintiff’s truck. The motorcyclist died. Plaintiff was injured and demanded the $25,000 underinsured motorist policy limit from Allstate, his insurance carrier. The investigating officer on the scene determined the motorcyclist was traveling 40-44 miles above the speed limit and plaintiff was not on his cell phone during the crash. Allstate hired an accident reconstruction firm to examine the scene. The expert determined the motorcyclist caused the accident. Thereafter, Allstate offered plaintiff $1,600 to settle the claim, contending plaintiff was 70 percent at fault.

Washington’s Court of Appeals Upholds Dismissal of Claims Against Insurance Agents

Author: Colin Hutchinson-Flaming

Guest Editor: Leslie Price

May 31, 2018 1:42pm

Norris v. Farmers, et al., — Wn. App. —, — P.3d — (2018)

Washington’s Court of Appeals recently upheld a trial court’s dismissal of an insured’s negligence action against his insurer and its agents in a dispute regarding the adequacy of his policy limits. The Court of Appeal determined the insured failed to demonstrate a “special relationship” with his insurer and its agents that would give rise to a legal duty advise him on the sufficiency of his policy limits.

Nevada Supreme Court Uncharacteristically Aligns with Ninth Circuit in Holding HOA Super-Priority Lien Statute is Preempted by Federal Foreclosure Bar

Author: Margaret Schmidt

Guest Editor: Leslie Price

May 31, 2018 1:28pm

After years of litigation in the lower courts and countless appeals to the Ninth Circuit and Nevada Supreme Court concerning the “Federal Foreclosure Bar,” the issue was finally put to rest by the Nevada Supreme Court on May 17, 2018 in in Saticoy Bay LLC Series 9641 Christine View v. Fed. Nat’l Mortgage Ass’n, 134 Nev. Adv. Op. 36 (2018).

Impeachment and How it Interacts with the Collateral Source Rule in Finner v. Hurless

Author: Mark Bolin

Guest Editor: Conner Holdsworth

May 31, 2018 1:24pm

Finner v. Hurless (Nev. App., Apr. 25, 2018, No. 70656) 2018 WL 2059533, at *1

Introduction

The Court of Appeals of Nevada recently upheld a defense verdict in a motor vehicle accident case involving testimony implicating impeachment evidence and its interaction with the collateral source rule. The court held the expert’s testimony opened the door to cross-examination concerning a certain past settlement agreement he had with the government prohibiting him from taking the plaintiff’s type of insurance.  In dicta, the court determined the admission of that evidence did not violate the collateral source rule, despite the fact that it revealed the identity of his insurance provider because the plaintiff never actually received a payment from his insurance.

Wearing Seat Belts While Riding in a Ride-Share Service Vehicle in Nevada

Author: Christina Toroyan

Guest Editor: Leslie Price

May 31, 2018 1:20pm

What happens if you are riding in a ride-share vehicle and are involved in a traffic collision while not wearing a seat belt? Ride-share company websites urge riders to wear seat belts when riding in a ride-share vehicle. Additionally, ride-share companies require the vehicles used under their service to be equipped with at least five functional seat belts, including that of the driver. 

No Absolute Privilege Against Defamation in Nevada Workers’ Comp Cases

Author: Christopher Lund

Guest Editor: Leslie Price

May 31, 2018 12:56pm

Fitzgerald v. Mobile Billboards, LLC, 134 Nev. Adv. Op. 30 (May 3, 2018).

Nevada has long recognized a common law privilege against prosecution for statements made during a judicial or quasi-judicial proceeding. This privilege protects parties and witnesses from lawsuits for defamation based on statements related to the issues in the proceedings or anticipated proceedings, even if the statements were made with malicious intent or were knowingly false. The policy reason for this is “the public interest in having people speak freely outweighs the risk  individuals will occasionally abuse the privilege by making false and malicious statements.” See Circus Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 61, 657 P.2d 101, 104 (1983).

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