David Kahn - Senior Counsel

dkahn@tysonmendes.com

Los Angeles, CA: (213) 745-8600

San Diego, CA: (858) 459-4400

Riverside, CA: (951) 248-1260

David Kahn is Senior Counsel in Tyson & Mendes’ San Diego office specializing in the defense of complex, multi-party general litigation and personal injury matters. Mr. Kahn has extensive litigation experience representing individuals, businesses and employers in California state and federal district courts.

Mr. Kahn has successfully resolved many cases involving complex personal injury, wrongful death, real estate, fraud, as well as state and federal workers’ compensation matters. He has successfully briefed several dispositive motions including a residential homicide, briefed a motion in limine to exclude expert testimony in a home invasion shooting case which provided the basis for an overturn on appeal and settled a complex real estate fraud case involving a tourmaline mine. Mr. Kahn also won a first workers’ compensation trial obtaining a take nothing award against an injured worker who claimed she obtained Lyme disease while working part-time for a nursery.

Mr. Kahn received his J.D. in 2000 from California Western School of Law in San Diego earning an Academic Achievement Award in Current Issues in Constitutional Law. He was admitted to the California State Bar in 2000. Mr. Kahn also holds a M.A. in English from San Diego State University and a B.A. from California State University, Northridge.

Outside the practice of law, Mr. Kahn enjoys spending time with his daughter, cooking, listening to his extensive music collection, and following Cleveland sports teams.

Recent Posts

U.S. Supreme Court Confirms Employers Cannot Compel Arbitration for Transportation Workers

In a unanimous decision, New Prime, Inc. v. Oliveira (2019) 139 S. Ct. 532, the U.S. Supreme Court resolved a nationwide dispute amongst the federal circuits regarding the enforceability of mandatory arbitration agreements in employment contracts for transportation workers classified as independent contractors.  In a unanimous opinion delivered by Judge Gorsuch, the Supreme Court held it is for the court to determine threshold issues of arbitrability notwithstanding any contractual provision delegating such questions to the arbitrator. The Court further held employment contracts for transportation workers who are classified as “independent contractors” are excluded from the Federal Arbitration Act’s (“FAA”) coverage.

Highlights of New California Laws Effective January 1, 2019

The California legislature has enacted several interesting and significant laws which go into effect January 1, 2019.  These diverse laws range from areas of employment law/sexual harassment, Cannabis regulation, roadway safety, and environmental health and safety. The following will briefly provide some highlights:

Supreme Court Confirms Evidence of Industry Custom and Practice May Be Used in Product Design Defect Cases

The California Supreme Court recently upheld a Court of Appeal decision which allows evidence of industry practice in certain product design defect cases.  (Kim v. Toyota Motor Corp. (2018) 6 Cal. 5th 21).  The product at issue in Kim was a 2005 Toyota Tundra which was not equipped with vehicle stability control (“VSC”).  Specifically, the high court held in an appropriate case a jury may consider whether a product is as safe, or safer, than any product on the market in evaluating whether on balance the product’s design is defective.  As demonstrated below, the Kim decision is significant for multiple reasons. It allows a product manufacturer to embrace its design decisions based on free market economic realities. The decision further diffuses juror anger based on a plaintiff’s one-sided and misleading evidentiary slight-of-hand intended to paint the manufacturer as a danger to the community by disregarding consumer safety.

Expert Designation and Summary Judgment Practice: Is a Summary Judgment Declaration by a Retained Expert a Designation in California?

California’s Summary Judgment Statute (Code of Civil Procedure Section 437c) was designed to “penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of facts.”  (Preach v. Monter Rainbow (1993) 12 Cal. App. 4th 1441).   A situation which often comes up in practice arises when a party submits a declaration from an expert either in support of or in opposition to a summary judgment/adjudication motion.  Because a summary judgment motion is often filed well before the time for designation of experts provided by Code of Civil Procedure Section 2034, several significant procedural issues arise including (1) May the expert who gave the Declaration in support or opposition to the summary judgment motion be deposed? (2) If so, what is the scope of the deposition; and (3) Is the expert entitled to fees for testifying?  The Second District Court of Appeal case, St. Mary Medical Center v. Superior Court (1996) 50 Cal. App. 4th 1531, provides some guidance on these issues.

California Supreme Court Redefines Independent Contractor Test for Wage Orders

Introduction

In a recent opinion, the California Supreme Court adopted a new test for determining whether a worker is an employee or independent contractor in certain contexts.  SeeDynamex Operations West v. Superior Court, (April 30, 2018) 4 Cal.5th 903, [232 Cal.Rptr.3d 1, 416 P. 3d 1]..  The Court adopted what is known as the “ABC” test used in other jurisdictions.  Under the test, a worker is an independent contractor only when the following are established: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. (Id. at p. 8).  It is important to note however, this new test is limited (at least for now) to the application of Wage Orders which define the term “employ” as “to engage, suffer, or permit to work.”

Tort of Another Doctrine: A Secret Weapon For Shifting Fees in California

A somewhat obscure but effective means of shifting attorney’s fees is the Tort of Another doctrine.  The Tort of Another doctrine is an exception to the general rule each party bear’s its own fees and costs absent a contractual provision or statute authorizing prevailing party attorney’s fees.  Code of Civil Procedure (“CCP”) Section 1021 prohibits the recovery of attorney’s fees in an ordinary two party case. The Tort of Another doctrine, however, is found in the Restatement of Torts and allows for the recovery of reasonable compensation for attorney’s fees incurred as damages proximately caused by another party’s improper actions.  (Rest. 2d Torts §914(2)).  California courts generally recognize the Tort of Another doctrine in applicable circumstances.  (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618,620-21).

Defending the Deep Pocket: California Proposition 51 Offset and Vicarious Liability

California Proposition 51 was enacted as part of tort reform legislation in 1986 to stop plaintiffs from suing entities for no reason other than their “deep pockets.”  Under a joint and several liability paradigm, which is the rule of law in California, each joint tortfeasor is 100% liable for all awarded damages. So, even a 1% at fault defendant could end up paying the entire judgment if the other tortfeasors are not financially viable. 

Crossing The Line Of Duty: California Supreme Court Limits Duty Of Commercial Property Owners To Control Traffic Collisions In Valisenko v. Grace Family Church

Should the owner of land abutting a public street be held responsible for a traffic collision between a motor vehicle and a jaywalking invitee?   The California Supreme Court says no.  On November 13, 2017, the Court issued a significant premises liability opinion overturning the Third District Court of Appeal and limiting the duty of commercial property owners who operate a business abutting a public street.  (Valisenko v. Grace Family Church (11/13/17) WL 5243812).  Specifically, the Court held a landowner does not have a duty to assist invitees in crossing a public street so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.  (Id. at p. 1).  As set forth below, the key to the Court’s holding is the proximity of the relationship between the landowner’s conduct and the invitee’s and who should as a matter of public policy ultimately bear the burden of preventing such accidents.

Howell Update: New Unpublished Decision Reinforces The Necessity Of Addressing Howell Issues Pre-Trial

The landmark California Supreme Court Decision, Howell v. Hamilton Meats and Provisions Inc. ((2011) 52 Cal. 4th 541), changed the paradigm of measuring past medical expenses in California by holding a personal injury plaintiff may only recover as damages the lesser of the amount actually paid for medical services or the reasonable market value of those services.  However, the Howell, decision did not provide any specific guidance as to how to procedurally raise the issue at the trial level so as to set the stage for a potential appeal if the trial court does not properly follow or apply the Howell rule of law.  The consequences of not properly raising Howell issues pre-trial are dramatically illustrated in the recent unpublished opinion Barker v. Aminirad (2017 WL 4707682).  Although not citable as authority, the unpublished Barker decision is instructive to defense claims handlers and their counsel because it demonstrates what the defense must do pre-trial to create a record for a potential appeal.

Lost in Translation: Demystifying Consolidation in Multi-Party Litigation

What does it mean when the court consolidates cases?  When separate actions are filed by separate plaintiffs arising out of the same transaction or occurrence, the issue of consolidation is likely to be raised early on by one of the parties or the court.  While the idea sounds simple enough, the wording of the statute itself and the related concepts of “relatedness” and “merger” often creates confusion and doubt among the parties and sometimes the court itself as to what exactly the legal and procedural effect of the consolidation order means and what was intended. 

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