Dangerous condition liability 572
April 17th, 2012 
admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Getchell v Rogers Jewelry 203 Cal.App.4th 381 (2012) (3) Slip & fall on spilled cleaning solution in room accessible only by Rogers’ employees and by Getchell. Rogers’s MSJ granted, reversed. San-Diego-Auto-Accident-lawyer [1] Dangerous condition liability may be based on defendant’s notice or by acts of its employees. If the latter, no showing of notice required. [2] Triable issue whether employees caused spill where access limited to them. San Diego personal injury attorney
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Guest slipped and fell in shower tub 571
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.comr
Howard v Omni Hotels Management Corp. 203 Cal.App.4th 403 (2012) (4/1) Howard, guest at Omni, slipped and fell in shower tub. Two prior accidents in other of chain’s hotels. Tub’s manufacturer, Kohler, showed tub met industry (ASTM) standards. Howard’s expert stated industry slipperiness standards, equivalent to ice, dangerously low. San-Diego-Auto-Accident-lawyer Omni’s MSJ denied (after new trial motion), reversed; Kohler’s MSJ granted, affirmed. [1]Whether industry standards compliance defeats a products liability claim may depend on scope of pleading, here alleged, “did not comply with applicable standards,” rather than consumer-expectations test. Once Howard’s expert stated that standards met, his opinion that higher standards needed is merely opinion, unsupported by evidence showing notice of standards’ being inadequate, and no such evidence adduced. [2] Negligence count against manufacturer: cannot rely on opinion of single expert attempting to counter established and accepted industry standards, especially where no evidence beyond expert’s conclusory opinion. [3] Hotel in special relationship with guests to protect them from unreasonable risk. Hotel not on notice where chain’s two prior accidents not shown to be similar (accident reports not describing conditions of tub, guests medical conditions, etc. San Diego personal injury attorney
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Medical malpractice arbitration 570
April 17th, 2012 admin Medical malpractice is another area of San-Diego-Personal-Injury-attorney.com
Maaso v Signer 203 Cal.App.4th 362 (2012) (2/2) Medical malpractice arbitration. Maaso made 998 offer, then went to arbitration. San-Diego-Auto-Accident-lawyer During deliberations defense-arbitrator innocently had ex parte communication with neutral mediator. Trial court vacated arbitration. In 2d arbitration Maaso mentioned existence of 998 offer, but not amount. Award beat 998, but arbitrators omitted any 998-enhanced costs. Arbitration confirmed, affirmed. [1] Proper to vacate first arbitration as within CCP § 1286.2 definition of “undue means,” even without finding of culpability. [2] Neutral’s declaration that he was not affected by ex parte communication properly found inadmissible Ev C § 703.5. [3] Determining 998 award is within arbitrators’ discretion; Maaso not entitled to costs where he only mentioned 998 and did not request it from arbitrators. San Diego personal injury attorney
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Contractual arbitration clause 569
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Hotels Nevada, LLC v L.A. Pacific Center, Inc. 203 Cal.App.4th 336 (2012) (2/2) Contractual arbitration clause required three arbitrators. San-Diego-Auto-Accident-lawyer Due to unexpected surgery, one arbitrator absent, but reviewed daily videos and transcripts, and deliberated with other arbitrators in decision. Arbitration award $146M confirmed, affirmed. [1] Appeal of order compelling arbitration forfeited by failing to provide adequate record. [2] Courts gives deference to arbitrators’ determination of their own powers. Here procedure at least consistent with rules cited in contract. AAA, Fed. Arbitration Act, and Nevada statutes. [3] Prior appellate decision, between same parties involving the same transaction but different points of law and different case, does not provide law of the case. [4] Arbitrators’ finding-that defendant’s principal was alter ego and directly liable-proper even though he never signed the contract. San Diego personal injury attorney
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Long Beach Police Officers case 568
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Long Beach Police Officers Assn. v City of Long Beach 203 Cal.App.4th 292 (2012) (2/2) Public Records Act request for names of all officers involved in shootings over the last five years. San-Diego-Auto-Accident-lawyer Police Association sought to enjoin disclosure, denied, affirmed. [1] Association has standing to challenge disclosure. [2] Specific exemptions, Gov C § 6254(c) (personnel records) and (k) (incorporating other laws’ prohibitions-here, Pen C § 832.7 and 832.8) inapplicable. [3] General prohibition, § 6255, balances of officer’s privacy with public interest in disclosure, favors privacy in certain circumstances (e.g., undercover) but appropriate circumstances absent here. San Diego personal injury attorney
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Overtime misclassification 567
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Duran v United States Bank National Assn. 203 Cal.App.4th 212 (2012) (1/1) Class action by bank officers for overtime misclassification as exempt, outside sales personnel. San-Diego-Auto-Accident-lawyer Evidence of job duties based on data from a sampling of 20 class members (of 260 member class), but sample not really random; other problems shown in lengthy review of evidence. Trial judgment for class, $15M, reversed. [1] Using a sample to prove liability violates defendant’s due process right to a fundamentally fair chance to tell its side of the story. Statistical sampling, if done right, permissible as alternative method of damage proof, not for liability where individual inquiries necessary. Even so, sample’s 43% margin of error is unacceptable. [2] Sampling plan flawed; trial court’s sua sponte sample size without expert advice violates, inter alia, Sax, Modern Scientific Evidence. [3] Excluding defendant’s evidence concerning any member other than the 20 is also error (e.g. showing at least 1/3 of class was properly classified). [4] Class improperly certified where defendant’s affirmative defense required individual proof, esp. since fewer than 10% of members subject to any proof. San Diego personal injury attorney
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Injured building a canopy 566
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Tverberg v Fillner Construction, Inc. 202 Cal.App.4th 1439 (1/4) (on remand from 49 Cal4th 518) Tverberg (a contractor) hired by a subcontractor who in turn hired by general contractor Fillner to build a steel canopy. San-Diego-Auto-Accident-lawyer Tverberg asked Fillner to cover holes dug near canopy, Fillner’s employee said could not do yet because lacked the equipment. Tverberg injured when he fell in hole. Fillner’s MSJ granted, reversed. [1] Fillner, by hiring Tverberg as an independent contractor, may not sue his hirer for beach of OSHA regs on nondelegable duty theory. Fillner, by hiring Tverberg, delegated its obligation to Tverberg to comply with regs. [2] Tverberg’s claim that Fillner retained sufficient control over work to be liable if Fillner affirmatively contributed to the danger. Allowing condition to occur is not enough. Digging holes and directing Tverberg to conduct unrelated work next to them is sufficient contribution to create triable issue, as does implied intention to cover holes “when equipment available.” San Diego personal injury attorney
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Restitution and damages case 565
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
M&F Fishing, Inc. v Sea-Pac Ins. Managers, Inc. 202 Cal.App.4th 1509 (4/1) M&F purchase marine insurance through Sea-Pac, most of which through nonadmitted carriers (common in marine insurance). San-Diego-Auto-Accident-lawyer Broker lacked required surplus lines’ license Ins C 1760.5. One of carriers became insolvent. M&F sued for restitution and damages B&PC § 17200, judgment > $5M, reversed. [1] Error to give restitution for placing insurance with admitted carriers as broker was properly licensed; separate ad distinct unlawful acts do not authorize restitution for related lawful ones. [2] No monetary injury for placing with nonadmitted carriers where polices in fact placed. No showing of “inherent risk” with such carriers. Premiums were not kept by brokers but conveyed to carriers, so no injury. [3] M&F may be entitled to refund of brokers’ fees where disclosure requirements not met Ins C § San Diego personal injury attorney
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Lewow v Surfside III Condominium Owners Assn., Inc. lawsuit 564
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Lewow v Surfside III Condominium Owners Assn., Inc. 203 Cal.App.4th 128 (2/6) Lewow sued his HOA and lost, promptly filing BK. BK dismissed five months later. San-Diego-Auto-Accident-lawyer HOA filed for attorney fees within 60 days of BK’s dismissal. Trial court held time tolled by 11 USC § 362 (automatic stay of “commencement or continuation” of a case), granted $292K fees, affirmed on other grounds. [1] § 362 does not apply to time to file an appeal or attorney fee motion (CRC 3.1702). HOA’s fee motion therefore untimely, but . . . [2] Trial court has discretion for good cause to extend time for motion (3.1702(d)), here, excusable mistake of “complex and debatable” issue of law, and affirmed on that ground. San Diego personal injury attorney
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Injured with raw material 563
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Maxton v Western States Metals 203 Cal.App.4th 81 (2/3) Maxton injured working with raw materials supplied by Defendants to mmm’s employer, a “sophisticated user.” San-Diego-Auto-Accident-lawyer San-Diego-Auto-Accident-lawyer Defendants’ MSJ granted, affirmed. [1] No negligence or strict liability for supplying raw materials, not defective or inherently dangerous. Component parts doctrine. Rest 3d Torts, Prod Liab. San Diego personal injury attorney
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