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“Rogue Juror” Acting as Expert Found to be Prejudicial to Plaintiff

Author: Wendy Skillman

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

I attended law school in Massachusetts and our professors continuously reminded us that California likes to stand alone on many legal issues. No Surprise. This was illustrated again in Nodal v. Cal-West Rain, Inc. (2019) 2019 WL 323856). Unlike in Federal Court or most other state courts, California allows juror affidavits to impeach a verdict pursuant to California Evidence Code §1150 if the affidavit shows objectively ascertainable…

A Game of Chance: Special Verdict Form Drafted by Plaintiff’s Counsel Results in Defense Verdict

Author: David Kahn

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

In a very favorable case for public entity defendants, the Second District Court of Appeal recently upheld a defense verdict for the Department of Transportation (“Caltrans”). (Fuller v. Dept. of Transportation (2019, WL 3933563).  The appeal brought by plaintiff challenged the verdict primarily on grounds the special verdict form drafted by plaintiffs’ counsel was inconsistent with and not supported by the evidence because the jury did in…

Late Expert Designation- Fatal or Flawed?

Author: David Ramirez

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

In the recent case entitled Du-All Safety, LLC v. Superior Court of Alameda County, (2019) 34 Cal.App.5th 485, the Second District Court of Appeal addressed under what circumstances a party may “supplement” its experts by identifying additional experts to testify on subject matters in which the party had not previously designated an expert.

Shopping Center Owes No Duty to Enhance Security to Prevent Random Assault on Patrons

Author: Brian Johnson

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

Summary of the Ruling
In a decision filed June 24, 2019, a California appellate court held: (i) a shopping center owner’s general knowledge of the possibility of violent criminal conduct on its premises is insufficient alone to create a duty to provide protection against foreseeable third-party criminal acts; (ii) a prior burglary, broken window and assault were insufficient to support finding that third-party criminal conduct was sufficiently…

California Court Outlines Insurance Issues for Car Rental Companies

Author: Alice Segal

Guest Editor: Jeremy Freedman

September 3, 2019 10:00am

In the recently decided Second District case, Adhav v. Midway Rent A Car, Inc, the Court of Appeal evaluated California’s insurance law to rule on the claims of fraudulent business practices brought by two rental car customers.  Plaintiffs Ashish Adhave and Cullen Dickson (“Plaintiffs”) asserted they were overcharged for rental insurance when they were forced to pay the rental car company more than it paid to obtain the general…

New California Ruling Highlights the Dangers of Failing to Accept Reasonable Policy Limits Demands

Author: Raymond K. Wilson Jr.

Guest Editor: Chandra Roam

August 7, 2019 10:00am

In Potter v. Alliance United Insurance Company (AUIC), the California Court of Appeal looked at a case involving a California legal minimum auto insurance policy, $15,000. Plaintiff, Christopher Potter was driving and was struck by Jesus Tovar’s car. Tovar was insured by AUIC with a maximum policy limit of $15,000. Potter offered to settle the claims against Tovar for the policy limit, but AUIC failed to respond to the offer.

Security Guards Not Always Required

Author: Po Waghalter

Guest Editor: Jillian Stanley

August 7, 2019 10:00am

The California Court of Appeal has made a recent ruling in a premises liability case that amounts to a victory for landowners: the Court ruled generalized knowledge of potential future crime does not meet the “heightened foreseeability” requirement for premises liability.  In layman’s terms, just because a parking lot owner has some general idea that a random crime has the possibility of occurring at some random point in the future, does…

The Howell Effect: How the California Supreme Court Decision Played a Role in the Louisianan Supreme Court’s Decision Simmons v. Cornerstone Investments

Author: Doug Baier

Guest Editor: Jillian Stanley

July 1, 2019 12:52pm

Plaintiff was working in the course and scope of his employment when he was injured while attempting to close a roll-up rear bay door that had become jammed. Plaintiff received workers’ compensation benefits, including disability and medical expenses. The medical bills charged by plaintiff’s healthcare providers totaled $24,435. However, this amount was reduced to $18,435 in accordance with the Louisiana Workers’ Compensation Act…

Temporal Proximity of Intentional and Unintentional Acts in the Course of Conduct within the Context of Coverage Determination

Author: Michaela Jester

Guest Editor: Jillian Stanley

July 1, 2019 10:00am

Last week, a California appellate court upheld a summary judgment granted in favor of an insurance carrier brought into court by the assignee of an insured’s rights to enforce the duty to defend or indemnify. The court ruled the insurer had no such duties in light of the facts of the case. Namely, the court’s decision validated the insurer’s choice in declining to extend coverage pursuant to the insured’s attempted robbery of a jewelry store…

Construction Company’s Insurer Not Required to Defend School District in Claim Arising Out of Employee’s Sexual Abuse at School

Author: Danielle Vukovich

Guest Editor: Robert Bernstein

July 1, 2019 10:00am

A United States District Court judge recently ruled that Liberty Surplus Insurance Corporation does not have to cover litigation costs incurred by a school district in defending a lawsuit arising out of an incident involving a construction worker who allegedly sexually assaulted a student while working at a school within the district.  The ruling is the latest development in Liberty Surplus Ins. Corp. v. Ledesma & Meyer Construction Co., Inc. 

California Case Law Update

Author: Emily Berman

Guest Editor: Jillian Stanley

July 1, 2019 10:00am

Philadelphia Indemnity Insurance Co. v. Stephouse Recovery Inc., et al.
Insurer Philadelphia Indemnity Insurance Co. (PIIC) recently won summary judgment against an addiction treatment company (Stephouse Recovery) to recover payment it made toward that company’s settlement of a suit over the death of one of its residents who overdosed. The underlying suit was filed by the father of a man who died while…

The Context of Speech Matters for Purposes of Anti-SLAPP Analysis

Author: David Kahn

Guest Editor: Jillian Stanley

July 1, 2019 10:00am

In a recent opinion, FilmOn.com v. Double Verify (2019) 246 Cal. Rptr. 3d 594, the California Supreme Court held context as well as content of speech is a relevant factor in evaluating whether the speech is entitled to protection by way of a special motion to strike under California Code of Civil Procedure § 425.16, commonly known as the anti-Strategic Lawsuit Against Public Policy statute (“SLAPP”).

Insurers Beware: California Legislature Seeks to Expand Statute of Limitations for Childhood Sexual Assault… Again

Author: Raymond K. Wilson Jr.

Guest Editor: Jeremy Freedman

June 4, 2019 8:50am

The California Legislature is considering a bill (AB 218) which would modify California Code of Civil Procedure § 340.1.  Currently, section 340.1 sets the statute of limitation for civil actions involving childhood sexual assault at the date the plaintiff turns 26 years old or three years after the plaintiff discovers (or should reasonably discover) the connection between the abuse and psychological injury, whichever occurs later.

Damage Awards in California Civil Trials: To Infinity and Beyond?

Author: Margarite Sullivan

Guest Editor: Salayha K. Ghoury

June 3, 2019 4:48pm

The recently decided Cobb v. Cty. of Los Angeles (Cal. Ct. App. May 1, 2019) No. B287090, 2019 WL 1929976, is a reminder to defense practitioners in California that chance are slim to none for an appellate reversal of a jury’s damages determination.  This article will provide practice pointers to defense practitioners to avoid runaway juries by exploring the reasons the Appellate Court in Cobb upheld the seemingly outrageous damages award.

Defending the Mild Traumatic Brain Injury Case in California

Author: Christopher Schon

Guest Editor: Salayha K. Ghoury

June 3, 2019 4:37pm

Do not let the term “mild” fool you.  The effects of a “mild” traumatic brain injury (“TBI”) can be severe.  There are so many definitions of “mild TBI” that if you asked 10 neurologists you would receive 10 different responses.  But, the general consensus is a mild TBI is defined as the result of a forceful motion of the head or impact causing a brief change in mental status or a loss of consciousness for less than 30 minutes. These symptoms may not be noticed for days, weeks, or months after the incident; sometimes, even an MRI or CAT scan will show the brain suffered no trauma.  Fortunately, there are numerous tactics defense counsel can use when facing a claim for mild TBI.

Opening the Floodgates: 9th Circuit Court of Appeals Holds Dynamex ABC Test for Independent Contractor Status Applies Retroactively

Author: David Kahn

Guest Editor: Jeremy Freedman

June 3, 2019 10:00am

Last year, the California Supreme Court announced a new standard, known as the “ABC” test for determining whether a worker is an employee or independent contractor in wage and hour cases.  (Dynamex Ops. W. Inc. v. Superior Court (2018) 4 Cal. 5th 903). Two weeks ago, the Ninth Circuit Court of Appeals held the Dynamex test applies retroactively in Vasquez v. Jan-Pro Franchising International, Inc. (2019 WL 1945001). As discussed below, the Vasquez decision could have far-reaching economic implications.

Privette Doctrine Exception Of “Affirmative Contribution” Further Diminished by Court Of Appeal

Author: Po Waghalter

May 6, 2019 12:58pm

General Contractors and their defense counsel love the Privette doctrine, which generally provides an affirmative defense from liability to injured employees of their subcontractors.   This is based on the rationale that the hirer indirectly paid into workers’ compensation (that should be furnished by the independent contractor for its employee) as part of the contract price.  (Privette v. Superior Court (1993) 5 Cal.4th 689.)  However, the Privette doctrine is not absolute and continues to be shaped, with the Court carving out exceptions, leading to increased verdicts against general contractors.

Electronic Filing, the “Courts”, and a Claimant Walk into a Bar …

Author: Margarite Sullivan

May 6, 2019 12:56pm

… And Everyone Panics!

As I am sure all California Lawyers are aware, Los Angeles just made the big switch to mandatory electronic filing for Limited Civil on December 3, 2018, and Unlimited Civil on January 2, 2019.  This means all civil filings in Los Angeles County Superior Court must be submitted electronically from now on.  At the end of this article, I will provide hyperlinks to the resources cited as it is very important all practicing attorneys in the state of California know and understand the new rules of the road.

Plaintiff Did Not File an Opposition. Now what?

Author: Kristin Mathis

May 6, 2019 12:52pm

As defense attorneys, we often feel frustrated by the application of state court rules and the apparent leniency granted to plaintiffs. It is unimaginable to think about blowing a deadline to file a Motion for Summary Judgment (“MSJ”) and then the court allowing you to file it late – this would never be permitted. But for some reason, when plaintiff’s Opposition to the same MSJ is late, or plaintiff needs extra time to conduct discovery (despite having 75 days’ notice of the Motion), courts and judges bend over backwards to accommodate them. By being armed with some case law, we can level the playing field.

California Court Finds Expert’s Reliance on Medicare Rates Does Not Violate Collateral Source Rule

Author: Brian Johnson

May 6, 2019 12:49pm

In a decision filed on March 14, 2019, a California appellate court held there was no violation of the collateral source rule where expert testimony referencing a plaintiff’s collateral source payments was made to provide a reasonable value of damages and helps the jury with context and background of the issues. (Stokes v. Muschinske (Mar. 14, 2019, No. B280116) Cal.App.5th [2019 WL 1513208].)

California Case Law Update

Author: Jillian Stanley

Guest Editor: Chandra Roam

May 6, 2019 12:18pm

Last Frontier Healthcare District v. Superior Court of Modoc County, 33 Cal.App.5th 492

In February of 2017, Jamie Harper underwent surgery to remove her gallbladder at a public hospital. In January of 2018, eleven months after her surgery, she alleged she was permanently injured because of the surgeon’s negligence and served notice to the hospital of her intent to file a medical malpractice action on both the hospital and the surgeon.

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