Chaaban v Wet Seal, Inc. lawsuit 562
April 17th, 2012 
admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Chaaban v Wet Seal, Inc. 203 Cal.App.4th 49 (4/3) Defendant beat CCP sec 998 offer (defense verdict), and included costs of Plaintiff’s expert’s deposition (expert excluded on in limine motion), Defendant’s exert’s fee, two witnesses depos and two-day depo of Plaintiff’s M.D., jury and court reporter fees, exhibits, and deposition travel costs. Motion to tax costs denied, affirmed. San-Diego-Auto-Accident-lawyer [1] Not necessary witnesses testify at trial to make depo and witness fees recoverable. [2] Other costs and fees proper exercise of discretion. [3] Travel expenses includes more that a plane ticket. San Diego personal injury attorney
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Ghaffarpour v Superior Court lawsuit 561
April 17th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Ghaffarpour v Superior Court 202 Cal.App.4th 1463 (2/3) Remittitur from earlier appeal issued Aug 2010, telephone notice of assigned judge (same as judge appealed from), June 3, 2011. San-Diego-Auto-Accident-lawyer Ghaffarpour filed CCP § 170.6 peremptory challenge June 11, denied as untimely under local rule deadline, 60 days after remittitur. Writ issued. [1] Local rule holding trigger date is remittitur in direct conflict with CCP § 170.6 which sets 60-day deadline running notification of judge’s assignment. San Diego personal injury attorney
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Sonora Regional Medical Center lawsuit 560
April 16th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Walker v. Sonora Regional Medical Center 202 Cal.App.4th 948 (2012) (5) Walker tested for cystic fibrosis gene, blood drawn at Sonora Regional, sent to outside lab. San-Diego-Auto-Accident-lawyer Results sent to Sonora Regional which sent it to Walker’s doctor, who failed to advise Walker of positive finding. Walker then became pregnant and child born with cystic fibrosis. Sonora Regional’s MSJ granted, affirmed. [1] Applying Rowland factors, hospital is under no duty to directly inform Walker of result, nor does it have a duty to adopt practices and procedures to ensure Walker would be informed, or a duty to format or highlight report’s positive finding. [2] Hospital’s duty depends on particular circumstances, and performing a single, discrete test is insufficient to “invoke the full panoply of hospital duties.” [3] No ostensible agency without showing doctor was employed by or closely connected with hospital. San Diego personal injury attorney
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Air transport liability 559
April 16th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Transport Ins. Co. v. TIG Ins. Co. 202 Cal.App.4th 984 (2012) (1/ 2) Transport insured Aerojet and TIG et al. reinsured Transport. Aerojet settled with Transport in 1999. San-Diego-Auto-Accident-lawyer Over the next 7 years, Transport demanded reinsurers contribute to defense and settlement, and finally sued them in 2006. Jury verdict against Transport, on statute of limitations defense, affirmed. [1] Jury instruction on SOL trigger date drafted by the court, but Transport “had as much to do with the instruction than did [the opponent].” Invited error where it made objection only on a minor point and did not request a specific property instruction. [2] Oral remarks made by a trial court cannot used to attack a later order. It’s what the court did, not what the court said that is reviewed on appeal. San Diego personal injury attorney
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Gasoline retail liability 558
April 16th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Klein v Chevron U.S.A., Inc. 202 Cal.App.4th 1342 (2012) (2/7) Consumer Legal Remedies Act CC § 1750, B&PC § 17200 et al, claim of selling gasoline by the gallon without adjusting for temperature expansion. San-Diego-Auto-Accident-lawyer Demurrers partially sustained, reversed. [1] Judicial abstention doctrine applies where complex policy issues in issue and alternative mechanism exists to resolve them. Not clear on demurrer whether complex issues need be resolved by courts or whether California Energy Commission could decide issues. [2] Claim stated under “unfair” prong of § 17200, using Camacho test (the most vague one) substantial injury, not outweighed by countervailing benefit and not avoidable by consumer. [3] Claim stated under “fraudulent” prong as consumers might be deceived by volume variations. [4] Claim stated under “illegal” unfair” prong as CLRA may form predicate unlawful act. [5] Contract claim: demurrer properly sustained, no breach for selling a gallon that is a gallon. San Diego personal injury attorney
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Credit card violation 557
April 16th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Alvarez v Brookstone Co., Inc. 202 Cal.App.4th 1023 (2012) (4/1) Piñeda 51 C4th 524 held recording credit card users’ zip codes violates Song-Beverly Credit Card Act CC § 1747.08. San-Diego-Auto-Accident-lawyer Demurrer sustained, that Piñeda represented change in law and thus not retroactive, reversed. [1] Case law is presumed retroactive. Piñeda did overrule existing case law, but that case deemed not only wrong, but unreasonable. San Diego personal injury attorney
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Dead after asbestos exposure 556
April 16th, 2012 admin Wrongful death is another area of San-Diego-Personal-Injury-attorney.com
Flores v Kmart Corp. 202 Cal.App.4th 1316 (2012) (2/5) Wrongful death asbestos case. After exposure but before lawsuit, Kmart had filed and gotten discharge in Chapter 11 bankruptcy. San-Diego-Auto-Accident-lawyer Other than publication (newspaper) notice, but no showing Flores (decedent or plaintiffs) had notice. Judicial notice taken of bankruptcy filings. No pleading of date when Flores aware of mesothelioma. Demurrer sustained, reversed. [1] Bankruptcy discharge can bar suit on unliquidated, continent or unmatured claim. If Flores’s identity reasonably ascertainable, then actual notice is mandatory. If not known or reasonably ascertainable, then service by publication would suffice. Given the record which was silent on whether Flores ascertainable, then error to sustain demurrer. San Diego personal injury attorney
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Wage and hour class action 555
April 16th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Muldrow v Surrex Solutions Corp. 202 Cal.App.4th 1232 (2012) (4/1) Wage and hour class action. Surrex, a job placement service, paid only on successful employee placements. San-Diego-Auto-Accident-lawyer Muldrow’s job duties were sales: recruiting potential employees and were paid by formula based on placements and salary of placed employee, with a monthly draw. Trial court found Muldrow was a commissioned employee and exempt from overtime rules, affirmed. [1] Comparing commissions paid to draw, and where 70% of salesmen exceeded draw, supports trial court finding it was bona fide commission. [2] Sales job encompasses not just actual sales, but also foundational work, e.g., finding candidates and job openings. San Diego personal injury attorney
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Bridgeford v Pacific Health Corp. lawsuit 554
April 16th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Bridgeford v Pacific Health Corp. 202 Cal.App.4th 1034 (2012) (2/3) Wage and hour class action. In prior case, different plaintiff, Larner, attempted class action, but class never certified. San-Diego-Auto-Accident-lawyer San-Diego-Auto-Accident-lawyer Larner settled her individual case, and her appeal of class denial dismissed as Larner no longer had personal interest in case. On Bridgeford’s case, demurrer sustained on collateral estoppel, reversed. [1] Unnamed putative class members were neither parties nor represented by a party in prior case. Thus, collateral estoppel does not apply Smith San Diego personal injury attorney
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State law violations in college 553
April 16th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Mize-Kurzman v. Marin Community College Dist. 202 Cal.App.4th 832 (2012) (1/ 2) MK reported to district president several state law violations in college minority program’s operation. MK then lost several responsibilities, got negative performance evaluation, and then put on leave. MK sued for whistleblower violations, LabC § 1102.5 Ed C § 87162. Jury verdict for district, reversed. San-Diego-Auto-Accident-lawyer [1] Federal authorities are instructive on state law. Trial court gave five limitations on what constitutes a protected disclosure. (#1 For public and not private reasons, #2 not mere policy differences, #3 not normal course of duties, #4 not publicly known facts, #5 not merely determining if practice violates the law.) #1 not supported by cited federal authorities, #2 applies to policies, but not where report is of suspected law violations. #3 not a categorical limitation, at least if supervisor is not the claimed wrongdoer. #4 was a proper limitation. #5 was a proper limitation. [2] Instructions requiring showing of “intention of retaliating” is proper. [3] Instruction that separate basis for employment action is a defense is proper. [4] Error to admit evidence of MK’s possible retirement benefits under guise of mitigation of damages, as this is a form of collateral source rule. Lengthy opinion. San Diego personal injury attorney
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