California Case Law Update

Author: Megan Isserman


Carbajal v. CWPSC, Inc., 2016 WL 757552 (February 26, 2016)

CW Painting Inc. provides residential painting services to homeowners and hires college students as interns to sell its services and run paining crews. CW Painting required its employees to sign an employment agreement that included an arbitration provision barring the workers from taking complaints to court while permitting the company to seek injunctive relief. Plaintiff, Martha Carbajal, worked for CW Painting for a few months in 2012 before suing the company for failing to pay minimum wage and other wage-and-hour violations. The employment agreement also prohibited employees from collecting attorneys’ fees that would be statutorily awarded if they prevail on wage and hour claims. Plaintiff refused to submit her claims to arbitration pursuant to the employment agreement and CW Painting filed a motion to compel her to arbitrate her claim.

The trial court denied CW Painting’s motion to compel plaintiff to arbitrate her claim under the arbitration provision in her employment agreement. The court found the arbitration agreement was unconscionable on several levels, including the provision allowing the company to seek injunctive relief in court while limiting employees to allowing arbitration.

Affirmed. On appeal, the court found the agreement to be too one-sided in favor of the employer to be enforced. Specifically, the panel found the provision was procedurally unconscionable because workers were required to sign it as a condition of employment and the employer failed to identify which rules of the American Arbitration Association would govern the arbitration process. The court also found the agreement was substantively unconscionable because the agreement lacked mutuality because it required the plaintiff to arbitrate her claims but the company could go to civil court to obtain an injunction. The arbitration agreement also required each party will bear its own attorneys’ fees, in violation of an employee’s statutory right to attorney’s fees.

Wallace v. County of Stanislaus, 2016 WL 758609 (February 25, 2016)

Sheriff’s Deputy Dennis Wallace sued the County of Stanlislaus for disability discrimination after he was placed on unpaid leave following a knee injury. Based on the County’s belief Mr. Wallace could not safely perform his duties as bailiff with or without accommodation, the County determined they had no other option but to place him on unpaid leave. At trial, the jury was asked “Did the County of Stanislaus regard or treat Mr. Wallace as having a physical disability in order to discriminate?” Since the jury found no discriminatory intent in the decision to place Mr. Wallace on unpaid leave, the jury found in favor of the County.

Reversed. The Court of Appeal held that the trial court’s erroneous instruction to the jury prejudiced Mr. Wallace. The panel explained the traditional McDonnell Douglas burden shifting test, where the burden of proof is shifted from employee to employer and back where there is circumstantial evidence of discrimination, does not apply in disability discrimination cases where there is direct evidence of the employer’s motivation. Relying on California Supreme Court ruling in Harris v. City of Santa Monica, 56 Cal. 4th 203 (2003), the Court of Appeal determined that an employer treats an employee differently based on a disability when the disability is a substantial motivating fact in the employer’s decision to subject the employee to an adverse employment action. As a result, the County was held liable for disability discrimination when it placed Mr. Wallace on unpaid leave.


Davis v. Honeywell International Inc., 2016 WL 825586 (March 3, 2016)

Sam Davis began working with Honeywell’s Bendix brake linings around 1964, which were composed of a resin material that contained approximately 50 percent asbestos fibers. Davis’s job involved sanding the linings before they were installed on cars, which created dust that he inhaled. In 2011, Davis was diagnosed with mesothelioma and sued Honeywell before dying in 2012.

At trial, an expert testified every exposure to asbestos can cause cancer and the jury found in favor of Mr. Davis, awarding the Davis family $2 million in damages. On appeal, Honeywell argued the expert’s “every exposure” theory during trial should not have been admitted because it was speculative, not supported by scientific evidence, and improperly swayed the jury into deciding Honeywell was liable for Mr. Davis’s cancer.

Affirmed. The Court of Appeal concluded the trial court did not err in allowing the expert testimony because the “every exposure” theory is the subject of a legitimate scientific debate. In ruling on admissibility of expert testimony, it is the trial court’s job to determine whether expert theories are based on reasonable evidence. Since the expert in this case cited at least three different scientific studies during his deposition supporting his theory, the Court of Appeals upheld the jury verdict.

T.H. v. Novartis Pharmaceuticals Corporation, 2016 WL 916387 (March 9, 2016)

In the 1970’s, Novartis developed a prescription drug terbutaline sulfate, which was originally developed for the treatment of asthma. In 1976, Novartis marketed terbutaline as a tocolytic, an anti-contraction medication, to prevent preterm labor without FDA approval. Studies began questioning the safety of the off label use of the asthma medication as a tocolytic, which was proven to cause birth defects. In 2001, Plaintiff failed to change the drug label warnings before selling its rights to the drug to another pharmaceutical company. In 2012, twins whose mother was given a generic version of terbutaline during pregnancy were diagnosed with autism. The minors sued Novartis, the physicians, and the hospital for negligence, intentional misrepresentation, concealment, and negligent misrepresentation. Novartis filed a demurrer arguing it had no duty to the minors because it did not manufacture the medication consumed by their mother and had no responsibility for the labor or prescribing information since it sold its rights six years prior to her taking the medication. The trial court sustained the demurrer without leave to amend concluding the Novartis owed the twins no duty as a matter of law.

Reversed. The Court of Appeal followed the rationale of Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, holding a manufacturer of a brand name drug may be held liable for negligent failure to warn and negligent misrepresentation to plaintiffs who are injured by taking a generic version of the manufacturer’s brand name drug, so long as they could prove that the failure to change the warnings was a substantial factor contributing to their injury from their mother’s ingesting the generic version of the drug. Plaintiffs were permitted to proceed with their Complaint.

ABOUT THE AUTHOR: Megan Isserman is a graduate of Villanova School of Law. Ms. Isserman’s focus is on general liability, employment, and personal injury litigation. Contact Megan at 858.459.4400 or

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