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:
On June 16, 2015, shortly after midnight, the balcony of an apartment complex collapsed killing 6 young people who were attending a 21st birthday party. It was later determined the balcony had shown signs of water damage which was not addressed and that it collapsed as the result of wood rot in structural support beams. In addition to new laws which require contractors and their insures to report judgments and settlements in construction defect cases involving residential rental complexes (California Business & Professions Code Section 7071.20, etc.), as of January 1, 2019, California also requires the periodic inspection of balconies and other structural components in residential rental projects.
Thee Sombrero, Inc. v. Scottsdale Insurance Company (2018) 28 Cal.App.5th 729
In November, the California Court of Appeals expanded the potential basis for property damage claims when it held that property damage and loss of use claims can be based on intangible damage to property.
Thee Sombrero, Inc. (Sombrero) owned a commercial property in Colton, CA. Sombrero obtained a conditional use permit (CUP) allowing its lessees to operate the property as a nightclub. Crime Enforcement Services (CES) provided security services at the nightclub. In 2007, due to non-permitted property modification by CES, there was a fatal shooting at the nightclub. Following the shooting, the CUP was revoked and replaced with a modified CUP, which allowed the property to be operated only as a banquet hall. Revenues from operation of the property as a banquet hall were significantly lower than revenues when it was operated as a nightclub.
The California Court of Appeals recently affirmed a trial court ruling denying an insurer’s leave to amend its complaint after a motion for judgment on the pleadings was granted in favor of the defense. In Travelers Property Casualty Company of America v. Engel Insulation, Inc. (2018) WL6259032, Travelers, the contractor’s insurer, sought leave to amend its complaint against subcontractor Engel Insulation for defense fees and costs. The trial court denied Traveler’s request to amend. The Court of Appeals affirmed the trial court’s ruling and held an insurer may not “may not pursue a subrogation recovery if the insured is itself barred from filing suit.” (See Low v. Golden Eagle Ins. Co.(2002) 101 Cal.App.4th 1354, 1363.)
You just had a matter come across your desk and, of course, one of your first tasks is evaluating the liability exposure of your client. But sometimes lost in the liability exposure analysis is whether the exposure arose out of the work of a contractor. Why is this important? Because you could single-handedly save your client hundreds of thousands, if not millions of dollars, in legal fees by simply identifying possible indemnity contracts between your client and other entities. In this article I will highlight my favorite ways to use Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 to protect the businesses and assets my clients worked tirelessly to build.
Court comes to order and you begin examination of your cardiology expert.
Q: Doctor, in your work on this case, did you review the radiologist’s report of the chest x-ray taken of the plaintiff on March 1, 2018?
Q: Did you rely on the x-ray in rendering a differential diagnosis in this case?
A: Yes, I did.
Q: What did the radiologist find with regard to the x-ray?
An attorney hollers, “objection, hearsay!” What now?
California’s Fourth Appellate District, Division Three, recently issued an opinion that provides additional clarity regarding the interpretation and application of Statutory Offers to Compromise, also known as “998 offers.” Martinez v. Eatlite One, Inc. (2018) 27 Cal.App.5th 1181 holds when a 998 offer is silent on costs and fees a court should simply compare the jury award with the 998 offer because, for comparison purposes, plaintiff’s pre-offer costs and fees are added to both the jury award and the (silent on costs) 998 offer.
In California, an insurance bad faith claim is a claim that an insured has against his or her insurance company resulting from the insurance company’s bad acts. These claims usually arise from actions an insurance company takes, or fails to take, after incidents like a motor vehicle accident or property damage. Insurance bad faith is a complicated area of law.
Laying the Ground Work
It’s a classic example of the adage, “not if, but when.” The question is not if California will be shaken by a major earthquake, but when. The even better question is whether Californians will be insulated by unshakeable insurance policies when the time comes. The answer is a resounding “no.” Nearly 90% of California homeowners do not have earthquake coverage; a similar statistic applies to owners of commercial buildings1. The purpose of this article is to treat this fact as the critical mass necessary for bringing meaningful awareness to the issue. Long over-due is a deliberate discussion about California’s earthquake coverage crisis and a brainstorming of sensible solutions.
Defamation – A Prevailing Party on a Motion to Quash May be Awarded Fees and Costs Under C.C.P. § 1987.2 Even if the Subpoena is Withdrawn Prior to Judicial Ruling on the Motion
John/Jane Roe v. Wolfgang Halbig (November 20, 2018) 2018 WL 6061791
Wolfgang Halbig sued five “Doe” defendants for defamatory statements made on various blogs and social media sites. Halbig subpoenaed Google for production of documents and information revealing the identity of the posters. Google notified the account holder, who promptly moved to quash the subpoena under Code of Civil Procedure section 1987.1. The account holder also requested fees and costs under section 1987.2(c), which allows a trial court to award reasonable expenses to one who “prevails” on a motion to quash a subpoena for personally identifying information pursuant to section 1987.1. Halbig then withdrew the subpoena, but the account holder insisted on proceeding with the motion and recovering costs.
The questions of whether and when a plaintiff/patient-litigant puts her mental, psychological, psychiatric, or emotional state at issue have been extensively addressed by the California Supreme Court. In 1970, the Court addressed the patient-litigant exception of section 1016 of Evidence Code, holding the patient-litigant exception to the psychotherapist-patient privilege does not unconstitutionally infringe on the constitutional rights of patients, but that the scope of the discovery permitted “depends upon the nature of the injuries which the patient-litigant himself has brought before the court.” (In re Lifschutz (1970) 2 Cal.3d 415, 420-423 and 435.) The Court further noted:
Wrongful Death – A Non-Biological Child May Have Standing Under CCP § 377.60(a)
A.G. v. County of Los Angeles, et al. (October 18, 2018) 2018 WL 5078749
The decedent Brian Pickett was killed during an altercation with Los Angeles County Sheriff’s Department Deputies. Pickett’s partner, Tamai Gilbert, brought suit as guardian ad litem for their two biological children, Brian Pickett, Jr. and Micah Picket. Tamara Ford also brought suit as guardian ad litem for Gilbert’s other child A.G, who was not the decedent’s biological child.
Caselaw is shockingly sparse when it comes to handling indemnity contracts when a non-delegable duty is involved. This could be a situation where the answer is obvious, causing the issue to go unchallenged. I do not like to read between the lines when an opportunity to take full advantage of contractual indemnity presents itself. Afterall, contractual indemnity can be wonderful gift left by the attorney-drafter for a lucky litigation attorney to find down the road. This article provides clarification on the interaction of contractual indemnity and non-delegable duties so the gift of a well-drafted contractual indemnity clause can be fully enjoyed.
The “going and coming” rule states while employers are generally liable for the tortuous or negligent acts of their employees which are committed while the employee is in the course and scope of employment, when the employee is commuting to and from work, his employment has been “suspended” such his liabilities are not imputed to his employer. However, this “rule” is so rife with exceptions that treating it as a hard and fast rule can lead to some missed opportunities or costly pitfalls. Here, we look at some of these exceptions and their effects.