Federal District Court in California Dismisses Hotel Owners’ COVID-19 Business Loss Lawsuit Based on Virus Exclusion in Policy

Author: David Kahn

Guest Editors: Jeremy Freedman, Ashley Kaye

November 30, 2020 3:41pm

The Central District Court of California has dismissed the Complaint of two Fresno hotels claiming business losses to COVID-19. Following the trend of other California courts, the Central District Court found the Complaint failed to specifically allege facts supporting a claim for Business Income and Civil Authority coverage under the applicable Insurance Policy. Accordingly, the Court held the hotels’ COVID-19 related business losses were excluded from coverage under the Policy’s Virus Exclusion.

USD One of Many Colleges Sued Over Non-Refunded Tuition Due to COVID-19

Author: Dan Cortright

Guest Editors: Jeremy Freedman, Ashley Kaye

November 30, 2020 3:39pm

The University of San Diego was sued on November 5, 2020 in U.S. District Court for the Southern District of California by students demanding tuition refunds in light of COVID-19 campus closures. Led by USD student Catherine Holden, the putative class action that could include 9,100 students seeks partial refund of the $70,000 (including tuition, housing, meal plans and other fees), per academic year charged by the university.

Defenses to Stale Claims: Res Judicata and Collateral Estoppel

Author: Katie Greenbaum

Guest Editors: Nathan Berkeley, Ashley Kaye

November 30, 2020 2:48pm

When faced with plaintiffs who are attempting to re-litigate claims or issues, the doctrines of res judicata and collateral estoppel serve as affirmative defenses to bar plaintiffs from having two bites at the apple. These defenses should be considered when plaintiffs are allowed to bring actions under statutes reviving claims previously barred by a statute of limitations.

Ninth Circuit Limits Excess Insurers’ Ability to Question Settlement Payments by Lower Level Insurers Based on Improper Erosion Theory

Author: David Kahn

Guest Editor: Amy Chambers

November 2, 2020 3:00pm

In an issue of first impression, the Ninth Circuit was asked to decide whether a second level excess insurer may question the propriety of settlement payments of lower level insurers based on an improper erosion theory. (AXIS Reinsurance Company v. Northrup Grumman Corp. (2020) 975 F. 3d 840.)  AXIS Reinsurance Company (“AXIS”) challenged the erosion of primary and first level excess limits through settlement payments for what it alleged was an uncovered disgorgement claim under the Employee Retirement Income…

Attacking Causation on Summary Judgment California Appellate Court Provides Guidance

Author: Jeremy Freedman

Guest Editor: Jenn N. Crittondon

November 2, 2020 3:00pm

When filing a motion summary judgment, arguing defendant did not have duty to plaintiff is the gold standard. Whether a legal duty exists is a legal question not subject to a factual dispute that must be decided by the Court. On the other hand, attacking a complaint based on causation has its challenges. Motions for summary judgment based on causation often require expert declarations and facts. In fact, plaintiff attorneys advocate for retaining an expert immediately to create doubt and dispute defendant’s expert declaration.

Negligence: Revisiting the Privette Doctrine

Author: David Ramirez

Guest Editor: Jeremy Freedman

October 5, 2020 2:03pm

In the recent case of Horne v. Ahern Rentals, Inc. (2020) 50 Cal.App.5th 192, The Second District Court of Appeal revisited the issue of the “Privette Doctrine” and the exceptions to it.  Ever vigilant as to the Courts continued expansion of the “exceptions” to the Privette Doctrine, it was refreshing to see the Court instead merely review the facts of the case in context of the prior holdings, which created those exceptions to Privette.  If anything, the Court appeared to clarify the issues of active versus passive negligence in application to the Privette exception.

Amazon Found Strictly Liable for Defective Products Sold by Third-party Sellers in a Ground Breaking Appellate Court Decision

Author: Dan Cortright

Guest Editor: Jeremy Freedman

October 5, 2020 2:01pm

The Fourth Appellate District Court of Appeal recently published its decision in the Bolger v. Amazon.com, LLC case (2020 DJDAR 8836 (Aug. 13, 2020)) holding that Amazon is liable under a theory of strict product liability for a defective product sold on its online marketplace by a third-party seller.

Protecting Your Client by Way of a Protective Order

Author: Christopher Schon

Guest Editor: Jeremy Freedman

October 5, 2020 1:50pm

As defense practitioners, we have all been (or will likely be) in the situation where an overzealous plaintiff lawyer seeks to depose your corporate client’s person most qualified and individual employees, corporate officers, or owners. Often times, the defense lawyer will object to the deposition and meet and confer with plaintiff’s counsel. When meet and confer efforts fail, plaintiff’s counsel will bring a motion to compel the depositions. As the moving party, plaintiff will get the first shot at framing the issues and arguments for the judge. Naturally, defense counsel will then be playing from behind in drafting an opposition and attempting to reframe the issues.

California Court Refuses to Reduce a $9.25 Million Award

Author: Rachel Donnelly

Guest Editor: David Kahn

October 5, 2020 1:31pm

Let’s face it. California trial courts are NOTORIOUS for high jury awards. One might think exorbitant jury awards would not survive given California’s judicial structure of “checks and balances” (the California Courts of Appeal) charged would providing a check on unreasonable or otherwise improper decisions. Unfortunately, such is not always the case: Just this month, a California appellate panel refused to reduce a $9.25 million noneconomic damages award! (Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, 2020 WL 5422950).

Generic Comments About Plaintiff’s Age Are Insufficient to Prevent Summary Judgment of Plaintiff’s Discrimination Lawsuit in California

Author: Orlando Arellano

Guest Editor: Alla Policastro

September 9, 2020 11:00am

Being an employer these days can be a real minefield.  Some employers are downright paranoid about discrimination and harassment lawsuits.  So much so that they often have a no-tolerance policy about any type of comments about a person’s age, race, sexual preference, etc.  Arnold v. Dignity Health (Cal. Ct. App., July 17, 2020, No. C087465) presents the question of whether routine comments about a person’s protected status (whether it be age, race, or sexual preference, etc.) are sufficient evidence…

Recent California Arbitration Decisions Provide Cautionary Tale for Employers

Author: Regina Silva

Guest Editor: Alla Policastro

September 9, 2020 11:00am

While California still awaits to find out the status of AB 51, which banned mandatory arbitration agreements effective January 1, 2020, but was enjoined by a federal district court in February (and is on appeal), our Courts are still providing guidance with respect to arbitration agreements in place prior to 2020.  More recent decisions suggest the Courts are scrutinizing agreements allegedly signed electronically, as well as conducting strict reviews of the language of agreements.

Travelers Sent Packing in Claim for Reimbursement of Defense Fees and Costs Against Co-insurer

Author: Robert Bernstein

Guest Editor: David Kahn

September 1, 2020 8:30am

If Covid-19 has left you desperate for anything new to read, this hot-off-the-press decision may interest you – even though it involves insurance law! In a recent case, Travelers sought reimbursement from Hanover for funds incurred in defending an engineering firm which was insured by both companies. Hanover’s motion to dismiss was granted, with the Court determining : 1) Travelers’ claim was not among the kinds of claims which can be pursued against a party’s insurer under California…

Starbucks Case Establishes “Zone of Danger” Around a Cup of Tea

Author: Katy Cummings

Guest Editor: David Kahn

September 1, 2020 8:30am

Anyone who has spent at least a year at a law school in the last century is familiar with the seminal 1928 New York case Palsgraf v. Long Island Railroad Co., in which the eminent judge (and later Supreme Court Justice) Benjamin Cardozo established the principle that tort liability can only occur when a defendant breaches a duty of care which the defendant owes to the plaintiff.  In Palsgraf, the plaintiff was injured when a railroad worker helped a man carrying a package onto…

Recalcitrant Contractual Indemnitors Beware: Court of Appeal Upholds Equitable Subrogation Claim of Contractual Indemnitee’s Insurer for Defense Costs

Author: David Ramirez

Guest Editor: David Kahn

September 1, 2020 8:30am

In the recent matter of Pulte Home Corp. v. CBR Electric, Inc. (2020) 50 Cal.App. 5th 216, the California Court of Appeal, Fourth District reversed the denial of an equitable subrogation claim for reimbursement of defense costs from contractually obligated subcontractors to a defending insurer.  Upon review, the Court of Appeal found all of the elements for equitable subrogation were met, and thus, the equities tipped in favor of the insurer. The key policy informing the holding is to dis-incentivize contractors from avoiding their contractual indemnity obligations.

AB 1552: Pulled From Consideration By California Lawmakers

Author: Justin T. Ruedaflores

August 13, 2020 9:13am

Last month, we reported on Assembly Bill 1552 (“AB 1552”), the proposed legislation by California Assembly members James C. Ramos (D-Highland) and Monique Limón (D-Santa Barbara).  AB 1552 aims to provide financial relief to California businesses impacted by the COVID-19 pandemic, by allowing them to seek benefits from their insurance carriers if these businesses had an active business interruptions insurance policy in place.  As we reported, business interruption policies were designed by insurance carriers to cover financial losses resulting from…

My Off-leash Dog Injured Someone in an Off-leash Park. Can I Be Liable?

Author: Sean McGah

Guest Editor: Cinnamon J. Carr

August 3, 2020 10:40am

While many people consider dogs “man’s best friend,” sometimes man’s best friend causes an injury to a human, for which the dog’s owner is responsible.  A very common personal injury lawsuit is for an injury from a dog bite.  Other types of cases involve injuries caused by a dog simply being active and getting a little too rambunctious with someone.  Many parks allow dogs to be “off-leash,” but a greater…

Tyson & Mendes Wins Victory for Manufacturers in California Court of Appeal & Clarifies Law on Jury Instructions in Products Liability Cases

Author: Raymond K. Wilson Jr.

Guest Editor: Robert Bernstein

August 3, 2020 10:34am

I was privileged to brief and argue a recent case on behalf of Gehl Company in the California Court of Appeal. In Verrazono v. Gehl Company (2020) 50 Cal.App.5th 636, the Court of Appeal, First District, Division One, affirmed the trial court’s refusal to order a new trial following a defense verdict in a case involving severe injuries sustained by plaintiff while using a rough terrain forklift made by…

The California Court’s “Fastpass” to Trial within 120 days – Considerations in Approaching California’s Preference Statute in a Post-Pandemic World

Author: Rob Olson

Guest Editor: Robert Bernstein

August 3, 2020 10:16am

Imagine standing in the line for Disney’s new Star Wars ride after everyone receives the Coronavirus vaccine. At first, you may breathe sigh of relief – but then you realize that it might take the entire day to get on the ride. When, all of a sudden, a family strolls past everyone in another line—the “Fastpass” line.  Once jury trials finally resume in California, there will be an even longer line…

A Preservation of Evidence Letter is Not Enough to Protect an Attorney or Their Client From Consequences for Spoliation of Evidence

Author: Roberta E. Nalbandian

Guest Editor: Robert Bernstein

August 3, 2020 10:13am

A person or entity has an obligation before litigation is filed to preserve all relevant evidence if they know or reasonably should know that they will be sued.  Although most large corporate entities are aware of such obligations a small business owner or individual may not.  If the client and attorney have conducted a reasonable and diligent search of all relevant evidence in the hands…

California Considers Shifting Billions in Claims to Insurance Carriers: AB 1552, a Bold Proposal by Lawmakers to Cure the Pandemic Faced by California Businesses

Author: Justin T. Ruedaflores

Guest Editor: Lynn Allen

July 8, 2020 12:23pm

Proposed by California Assemblymembers James C. Ramos (D-Highland) and Monique Limón (D-Santa Barbara), Assembly Bill 1552 (“AB 1552”) aims to provide financial relief to California businesses impacted by the COVID-19 pandemic.  After issuing a shelter-in-place order, on March 17, 2020, Governor Gavin Newsom forced many companies to scramble and find new ways of generating revenue to stay afloat during this unprecedented time.

Survival Actions in California: When a Tortious Act Causes Death, Who Can Recover What?

Author: Christopher Schon

Guest Editor: Raymond K. Wilson Jr.

July 8, 2020 12:00pm

Where a decedent’s death was caused by third party misconduct, there may be tort causes of action for damages. Namely, a wrongful death cause of action- which is an independent claim on behalf of decedent’s heirs for damages they personally suffered; and a personal injury action which “survives” to decedent’s estate for the purposes of recovering damages the decedent would have been awarded had the decedent lived. This is governed by California Code of Civil Procedure (“C.C.P”) § 377.20. This article will focus on survival actions.

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