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Leveling the Playing Field: Defense Counsel Used “Honest Fouls” in California and Beat a $16 Million Jury Demand

Author: Rob Olson

Guest Editor: Kiran Gupta

July 12, 2021 9:53am

In Bob Tyson’s book titled Nuclear Verdicts: Defending Justice for All, Bob Tyson challenges the defense bar to “[u]se your fouls.” A defense attorney who prefers to play by the books may question what an “honest foul” is and when to make such fouls. This article evaluates a May 2021 California Appellate decision illustrating how California courts allowed “honest fouls” in trial. Ultimately, these honest fouls allowed a jury to evaluate facts beyond plaintiff’s $16 million demand and the jury ultimately found plaintiff 45% responsible, reducing the total award from $2.9 million to $1.6 million.

Reasonable Minds May Differ When it Comes to Interpretation of Philadelphia’s Insurance Policy Exclusions

Author: David Kahn

Guest Editor: Blaire Bayliss

July 2, 2021 9:00am

The Ninth Circuit Court of Appeals affirmed summary judgment in favor of Philadelphia Indemnity Insurance Company (“Philadelphia”) regarding its denial of coverage to Oak Park Unified School District (“Oak Park”) based on a “design defect” exclusion in its policy, holding the denial was not in bad faith even though the Ninth Circuit had previously found the defect exclusion was ambiguous

Appallate Court Refuses to Permit Arbitration of Threshold “Employee or Independent Contractor” Issue

Author: Orlando Arellano

Guest Editor: Kiran Gupta

June 9, 2021 11:26am

California adopted a novel approach to enforcing the Labor Code of California when it enacted the Private Attorney General Act of 2004 (“PAGA”). This law allows a private citizen to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency (“LWDA”) provided the formal notice and waiting procedures of the law are followed.

Update: California District Court Upholds Previous Dismissal of Wife’s COVID-19 Civil Suit

Author: David Kahn

Guest Editor: Kiran Gupta

June 4, 2021 9:00am

In our April Newsletter, Tyson & Mendes reported a California federal court dismissed a lawsuit filed by the wife of a construction worker. Plaintiff claimed her husband contracted COVID-19 at work and brought the virus home infecting her as well. Following the dismissal, the district court judge gave plaintiff an opportunity to amend her complaint. At a hearing on May 7, 2021, the court upheld the dismissal without further leave to amend. As of this date, it is unknown whether plaintiff will appeal.

California Law on Dog-Bite Liability – Is it Absolute?

Author: Brianna Andrade

Guest Editor: Kiran Gupta

June 4, 2021 9:00am

California’s dog bite statute, Civil Code 3342, is one of the strictest dog laws in the country. Unfortunately, the possibility of civil liability rarely crosses the mind of dog owners but dog bite cases are common and injuries are more severe than one may expect. In California, dog owners must compensate victims whether their dog showed signs of aggression in the past or not.

In California, Alleged Defects Caused By Continuing Loss May Be Question of Fact

Author: David Ramirez

Guest Editor: Kiran Gupta

April 30, 2021 9:00am

In the recent case of Guastello v. AIG Specialty Ins. Co. (2021), the California Court of Appeals, Fourth District held triable issues of material fact exist which preclude summary judgment for an insurer seeking to disclaim coverage on the basis the “occurrence” pre-dated the policy period where a dispute exists as to the timing of the subject “occurrence.”

A Tell-All Article on Written Discovery Objections

Author: Rachel Donnelly

Guest Editor: Kiran Gupta

April 30, 2021 9:00am

Generally, written discovery is a party’s first opportunity to seek information regarding the opposing side’s claims or defenses. Written discovery is a powerful tool as it forces the other side to provide information regarding their case under oath. The different types of written discovery are interrogatories, requests for admissions, and inspection demands. Although written discovery is permissible under the Civil Discovery Act, there are reasons to object and not provide the information requested. To avoid providing a substantive response to improper discovery requests, the responding party must timely serve objections. This article explores a few valid objections a party may assert in response to unacceptable discovery requests.

The Wave of Recent COVID-19 Litigation and Trends to Watch For

Author: Rachel Donnelly

Guest Editor: Kiran Gupta

April 2, 2021 9:00am

California recently passed the one-year anniversary of the COVID-19 stay at home order. The COVID-19 pandemic has affected lives in different ways. Employees who regularly worked in an office now work from home. Restaurant chains open for years have shut their doors for good as they could no longer turn a profit. COVID-19 has also affected litigation. It was unclear what types of suits would result from the pandemic. However, a year into this unforeseen global epidemic, we now have a better idea of the types of lawsuits which will be filed. This article explores recent news involving COVID-19 litigation throughout the United States in an effort to achieve a better understanding of how litigation has changed.

The Effect of COVID-19 on The Music Industry and Recent Case Law

Author: Robert Bernstein

Guest Editor: Kiran Gupta

April 2, 2021 9:00am

While the streaming of recorded music remains healthy, live music venues, musicians, and those who support them have been hard hit by the COVID-19 pandemic. Restaurants may survive by offering food to go and in some instances outdoor seating, but a concert cannot be packaged to take home, and it is not practical to perform outdoors for small groups, even when weather and noise are not concerns. Following are summaries of two recent music industry decisions, one a win for an insurer and one a win for a concertgoer. A third ongoing case involving a dispute with an insurer over a cancelled music tour is also discussed.

Construction Defect Cases in Disguise

Author: Katy Cummings

Guest Editor: Kiran Gupta

April 2, 2021 9:00am

Imagine you are an insurance defense attorney handling primarily personal injury, general negligence, and premises liability cases, when a new case lands on your desk. At first glance, it appears just like any other case alleging general negligence and premises liability because plaintiff has injured himself on someone else’s property and has brought a suit to recover damages. You begin to work up the case as you would a hundred others which have crossed your desk and will in the future.

$15 Million Punitive Damages Award Vacated in Asbestos Injury Case

Author: Roberta E. Nalbandian

Guest Editor: Kiran Gupta

April 2, 2021 9:00am

On January 27, 2021, the Second District Court of Appeal rendered an opinion regarding the application of punitive damages against a corporation in Morgan v. J-M Manufacturing Company, Inc. Norris Morgan, a construction worker, sued multiple defendants for suffering mesothelioma arising out of his exposure to various products. All defendants except J-M Manufacturing (JMM) settled by the time of trial or shortly thereafter. JMM was the only defendant who proceeded to verdict. Plaintiff established Mr. Morgan was a construction worker who worked in 1970s- 1980s when he was exposed to J-M Transit Pipes manufactured or supplied by JMM during the relevant time period. The jury found JMM to be 45% liable for Mr. Morgan’s injuries, awarding Mr. Morgan and his wife (loss of consortium claim) compensatory damages in the amount of $15,270.501, and an additional $15,000,000 in punitive damages. JMM appealed the judgment regarding punitive damages among other issues.

How to Avoid Appearing as a Cat and Other Helpful Virtual Deposition Tips

Author: Rachel Donnelly

March 1, 2021 8:28pm

We are likely all aware of the infamous Texas attorney who mistakenly used a cat filter during a virtual court appearance earlier this month.  Although this is an extremely comical story and certainly brings some levity to the current situation in our nation, this is also a prime example of the new wave of errors emerging alongside the new norm of virtual appearances and depositions.  The good news is, with some preparation, anyone can be successful at virtual appearances.

Plaintiff Moves to Amend Discovery Responses to Defeat Motion for Summary Judgment – And Wins

Author: Jeremy Freedman

March 1, 2021 12:34pm

In the normal course of preparing to file a motion for summary judgment or adjudication, attorneys labor over crafting targeted requests for admission, special interrogatories, and request for production of documents to support their legal arguments.  Every once in a while, the responding party will provide clear and complete responses unfettered by countless objections to support the motion.  In one recent case, in response to defendant’s request for admission, plaintiff even admitted outright defendant did not cause the incident.  In receiving such responses and/or admission, one’s gut reaction would reasonably be, “Gotcha!”

Second Appellate District in the Court of Appeal of the State of California Vacates “Excessive” $30,000,000 Non-Economic Damages Award

Author: Sean McGah

February 1, 2021 8:09pm

A recent decision by the Court of Appeal for the State of California in the Second Appellate District affirmed courts prefer to adjudicate cases on merits when it vacated a non-economic damages award of $30,000,000.  In Rodolfo Plascencia et al., vs. Charles Gynn Deese, et al. (B299142; decision filed January 20, 2021), the parents of a young motorist killed in an accident brought a wrongful death suit, alleging trucking company and one of its drivers were negligent…

In California, Negligent Infliction of Emotional Distress Claims May Apply in Cases Involving Contemporaneous Observation Through Technology

Author: David Ramirez

February 1, 2021 8:05pm

In the recent matter of Ko v. Maxim Healthcare Services, Inc., (2020 WL 7639590; December 23, 2020) the California Court of Appeal for the Second District determined the present requirement for a claim of negligent infliction of emotion distress brought on behalf of a bystander, was satisfied where plaintiff was present virtually with the aid of technology.

The Ninth Circuit Court of Appeals Rejects Boilerplate Evidentiary Objections on Summary Judgment

Author: Amy Chambers

February 1, 2021 8:00pm

The Ninth Circuit Court of Appeals recently issued an opinion in the case of Ana Sandoval, et al. v. County of San Diego, et al. (9th Cir. Jan. 13, 2021), addressing every civil litigators’ favorite topic: evidentiary objections in relation to a motion for summary judgment.  While the claims in Sandoval arise from allegations of civil rights violations, which most may find more interesting than evidentiary objections, the Court’s discussion and analysis regarding…

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