Elder abuse case 384
April 29th, 2011 
admin Abuse is another area of San Diego Personal Injury Attorney.
Villano v Waterman Convalescent Hospital 181 Cal.App.4th 1189 (2010) (4/2) Elder abuse case. After many motions in limine rulings went against V, V stipulated to judgment against her to set up appeal. [1] Judgment is appealable, as exception to rule that judgment w/ consent of appellant is not appealable. [2] Because the trial court expressly stated the rulings were tentative and subject to reconsideration based on trial evidence. “In limine motions are by their nature tentative.” Thus, no showing of final ruling by trial court, no full evidentiary record, and no showing of prejudicial error in view of full record. San Diego personal injury attorney
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Bus driver fired for performance trouble 383
April 29th, 2011 admin Premises Liability is another area of San Diego Personal Injury Law.
Harris v City of Santa Monica 181 Cal.App.4th 1094 (2010) (2/8) At-will employee bus driver fired for some performance problems but also while she was pregnant. Trial court refused BAJI 12.26 mixed-motive defense instruction, givinginstead CACI 2500 which omits any mixed-motive factor. Error. Mixed-motive defenses is still good law. [2] JNOV properly denied, where some evidence showed other drivers w/ questionable records not fired, plus some positive performance-review comments, would permit jury to find firing motivated by pregnancy. San Diego personal injury attorney.
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Repurchase issues 382
April 29th, 2011 admin Premises Liability is another area of San Diego Personal Injury Law
Lukather v General Motors LLC 181 Cal.App.4th 1041 (2010) (2/1) Song Beverly Consumer Warranty Act CC § 1790 (Lemon Law). L’s care not repaired after several tries. [1] Once L asked for repurchase option, G’s delays, and attempt to replace instead of repurchase, are violations. Failure to repurchase in spite of that duty shows lack of good faith and supports wilfulness finding. [2] No duty to mitigate damages. San Diego personal injury attorney.
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Geographic Expeditions, Inc. premises liability 381
April 29th, 2011 admin Premises Liability is another are of San Diego Personal Injury Law.
Lhotka v Geographic Expeditions, Inc. 181 Cal.App.4th 816 (2010) (1/3) Arbitration petition properly denied where underlying contract was “permeated by unconscionability.” Arbitration limited L’s recovery, set for remote location, at L’s cost, and requiring L to pay G’s attorney fees simply for bringing a claim. “Substantive unconscionability was so present that it is almost impossible to keep from tripping over it.” San Diego personal injury attorney.
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Invasion of private facts 380
April 25th, 2011 admin Premises Liability is another area of San Diego Personal Injury Law.
Catsouras v Department of CHP 181 Cal.App.4th 856 (2010) (4/3) Officer anddispatcher emailed gruesome fatal accident photos w/names to third parties as Halloween prank, but photos quickly spread through the Internet. Complaint states claims for (1) Invasion of private–disclosure of private facts. No public interest when one crossed the line to morbid and personal prying for its own sake. (2) Intentional infliction claim stated for extreme and outrageous conduct: making photos and Internet spectacle. (3) Officer’s duty to handle human remains does not encompass a right of public disclosure of photographs of deceased person. (4) Negligent infliction arises out of duty not to exploit gruesome photos for no public purpose. No special relationship created between officer anddecedent or family, so no negligence duty on that ground. (5) No claim stated for § 1983 as no clearly established constitutional right to privacy in this situation. (6) Gov C § 821.6 immunity in absence of showing some relationship to an investigation. Lengthy opinion w/lengthy concurring opinion. San Diego personal injury attorney.
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Construction defects 379
April 25th, 2011 admin Premises Liability is another area of San Diego Personal Injury Law.
Goodman v Lozano 47 Cal.4th 1327 (2010) Chin7-0 Prevailing party costs, CCP § 1032. G sued L & M for construction defects. M and others settled for $230K. Judgment for $146K, less $230K= zero net recovery. Trial court properly found Def L the prevailing party and awarded $144K attorney fees and costs. Plain language of statute: ‘prevailing party’ means ‘net monetary recovery.’ San Diego personal injury attorney.
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Counter top heights lawsuit 378
April 25th, 2011 admin Premises Liability is another area of San Diego Persoanl Injury Law
Louie v BFS Retail & Commercial Operations 178 Cal.App.4th (2009) (3) Disabled customer L sued B over countertop heights. Claim not barred by prior class-action decree on ADA cases–where decree expressly reserved any damage claim–is not res judicata to state-law damage action. San Diego personal injury attorney.
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Surcharges on cruise lawsuit 377
April 25th, 2011 admin Premises Liability is another area of San Diego Personal Injury Law.
Princess Cruise Lines v Superior Court 179 Cal.App.4th 36 (2009) (2/8) B&PC §§ 17200, 17500 & Consumer Legal Remedy Act CC § 1750 claims for surcharges on cruise line’s shore excursions. [1] CLRA prohibits MSJs designed to pick off individual class action members, but permits MSJs aimed at entire action CC § 1781(c). [2] Pls must prove they relied upon claimed misrepresentations to prove 17200 claim, and testimony that Pls would pay any price to go on excursions defeats claim. Also Pls had not contact with cruise lines. [3] Yet another slam of appellant counsel’s failing to city record for factual support, “colorful language is not a substitute for facts or evidence.” San Diego personal injury attorney.
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Employee fired because criticizing superior 376
April 25th, 2011 admin Premises Liability is another area of San Diego Personal Injury Law.
Kaye v San Diego County Public Law Library 179 Cal.App.4th 45 (2009) (4/1) Lawyer-employee’s “scathing email criticizing his superiors,” proper basis for firing. [1] Email’s content was part of K’s job duties, and not speech on matters of public concern. Therefore no Free Speech Clause violation under either US or California Constitutions. [2] California False Claims Act Gov C § 12650 whistle blower protection inapplicable where purpose other than reasonable belief of a false claim having been made. San Diego personal injury attorney
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Misrepresentation and defamation 375
April 25th, 2011 admin Malicious prosecution is another area of San Diego Personal Injury Law.
Jackson v Yarbray 179 Cal.App.4th 75 (2009) (2/7) J sued Y and lawfirm B for malicious prosecution. Earlier case, C sued J for misrepresentation & defamation, the latter stricken by anti-SLAPP motion and former voluntarily dismissed. [1] Attorney fee award in anti-SLAPP collateral estoppel to later malicious-prosecution damages (attorney fees). [2] Attorney fees in defending malicious prosecution action proved by testimony or documentary evidence, absent contrary evidence. San Diego personal injury attorney “It must be assumed those fees were reasonable.”
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