Bike collide with maintenance truck 512
April 10th, 2012 
admin Auto accidents are another area of San-Diego-Personal-Injury-attorney.com
Hartt v County of Los Angeles 197 Cal.App.4th 1391 (2/7) (2011) Decedent rode his bicycle on park trial, one used both for hiking and biking recreation and for county maintenance vehicles. San-Diego-Auto-Accident-lawyer Decedent fatally collided with maintenance truck. Court granted MSAI on dangerous condition theory–barred by recreational use immunity, Gov C § 831.4. Jury verdict for Defendant on negligent truck driving. Affirmed. [1] § 831.4 applies to trails used for recreational purposes. It has no exception for trails also used for maintenance or other purposes. The Legislature knows how to create statutory exceptions, but chose not to do so. San Diego personal injury attorney
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County of San Luis Obispo lawsuit 511
April 10th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Edna Valley Watch v County of San Luis Obispo 197 Cal.App.4th 1312 (2/6) (2011) San-Diego-Auto-Accident-lawyer Plaintiff prevailed in case against county; moved for private attorney general fees CCP § 1021.5 for both lawsuit and underlying administrative proceedings. Fees for administrative case denied, reversed. [1] § 1021.5 allows fees in any action. The term “action” more broad than usual CCP definition. [2] Moving party’s pecuniary benefit from case not to be considered unless party’s expected monetary recovery substantially exceeds actual litigation costs. San Diego personal injury attorney
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Eradicated dangerous invasive fish species 510
April 10th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Department of Fish & Game v Superior Court 197 Cal.App.4th 1323 (3) (2011) DFG eradicated dangerous invasive fish species (northern pike). San-Diego-Auto-Accident-lawyer Class action by local land- and business owners for lost income and property value. Trial court’s analysis accepted Plaintiffs’ declarations at face value, and shifted burden to Defendant to disprove, which evidence trial court subjected to critical analysis. Class certification granted, reversed. [1] Numerous disparate parcels and businesses, each requiring separate analysis of injury and damages, defeat commonality requirement. [“Blackacre is unique.”] Whether Defendant’s acts are many or singular does not change commonality requirement. [2] Trial court analyzed evidence as a shifting burden of proof (if Plaintiff showed prima facie, Defendant had burden to rebut). No such rule. Court must analyze and evaluate all evidence in determining whether plaintiff has carried burden of proof. [3] Various theories (negligence, inverse condemnation, nuisance) each require analysis of commonality v. individualized claims. Broad-brush, overall-losses approach is inadequate (lengthy, detailed analysis). San Diego personal injury attorney
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Court dismissed case 509
April 10th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Powell v County of Orange 197 Cal.App.4th 1573 (4/3) (2011) Court dismissed case, lack of prosecution, with unsigned minute order Oct 2009. San-Diego-Auto-Accident-lawyer CCP § 1008 motion to reconsider Apr 2010, denied. CCP § 473 motion June 2010, denied. Aug 2010 appeal, dismissed. [1] Denial of reconsideration motion not an appealable order. Labeling the second reconsideration motion a § 473 motion does not change it is a reconsideration motion. [2] Unsigned § 581d dismissal is ineffective to constitute a judgement. Thus, no judgment to be reconsidered or set aside. San Diego personal injury attorney
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Family law matter 508
April 10th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Giorgianni v Crowley 197 Cal.App.4th 1462 (6) (2011) Crowley represented Giorgianni in family law matter. Giorgianni prevailed in fee arbitration. Crowley filed de novo trial request in small claims court. San-Diego-Auto-Accident-lawyer Giorgianni filed petition in superior court to confirm arbitration award, claiming Crowley’s de novo request was filed in wrong court–arbitration award exceeded $5K. Petition granted, reversed. [1] Nonbinding fee arbitration becomes binding only if neither side rejects it. Filing a timely small claims action is a rejection. Once Crowley rejected the award, the matter is “as if no arbitration had occurred.” Thus a party may file in small claims. Different result if matter is to “confirm, correct, or vacate ” an unrejected award. San Diego personal injury attorney
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Sierra Chemical lawsuit 507
April 10th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Salas v Sierra Chemical Co 198 Cal.App.4th 29 (3) (2011) Review granted Long-term seasonal worker Salas not rehired following on-the-job injury. San-Diego-Auto-Accident-lawyer Salas used counterfeit social security account number to gain job, but Sierra did not learn this until after lawsuit filed. Salas sued–disability discrimination and refusal to hire. Defendant’s MSJ granted, affirmed. [1] After-acquired evidence which would have resulted in firing is a complete defense in wrongful termination cases, extended here to hiring cases. Oral statement by supervisor, no firing for “SSN discrepancy,” does not create triable issue of fact on Sierra’s policy not to hire those who falsify SSNs. [2] Salas’s using false documents bars claim under ‘unclean hands’ where misrepresentation “goes to the heart of the employment relationship.” [3] SB 1818 (2001) limiting effect of federal anti-illegal immigration law, applies to other wise valid employment cases awarding back pay. It does not exculpate misrepresentation. San Diego personal injury attorney
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Mortgage loan 506
April 10th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Boschma v Home Loan Center, Inc. 198 Cal.App.4th 230 (4/3) (2011) Boschma alleged mortgage loan documents violated Truth in Lending Act 15 USC 1601 by failing adequately to disclose “Option ARM” negative amortization, sued for fraud and B&PC § 17200. San-Diego-Auto-Accident-lawyer Demurrer sustained, reversed. [1] Following numerous federal district court cases, Boschma may be able to show failure of “clear and conspicuous TILA disclosures,” and can state a claim, even if disclosures may have been technically accurate. [2] Fraud claim stated where material facts concealed by inaccurate representations or half-truths. [3] Fraud allegations sufficient to state 17200 claim, unlawful and unfair prongs. Actual damages might be shown if Boschma was unable to avoid negative amortization. Concurring opinion, must show more than merely having negative amortization–each dollar principal increased is a dollar Boschma saved. San Diego personal injury attorney
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Failure to provide record 505
April 10th, 2012 admin Breach of contract is another area of San-Diego-Personal-Injury-attorney.com
Foust v San Jose Construction Co. 198 Cal.App.4th 181 (6) (2011) Contract breach case; Foust appealed with a partial clerk’s transcript, and no reporter’s transcript. San-Diego-Auto-Accident-lawyer [1] Failure to provide record is fatal to the appeal. [2] Because appeal presented no colorable claim of error, appeal is “indisputably without merit.” Sanctions appropriate. Further filing an appeal objectively without any merit is evidence the appeal brought only for improper purposes. [3] Sanctions paid to court of $6K, plus $8.7K sanctions to respondent. San Diego personal injury attorney
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Toyota Motor case 504
April 10th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Toyota Motor Corp. v Superior Court 197 Cal.App.4th 1107 (2/5) (2011) Plaintiff moved to compel Toyota’s Japanese-resident employees depositions in California. Granted, writ issued. San-Diego-Auto-Accident-lawyer [1] CCP § 2025.260(a) gives trial court discretion to order deposition of party’s officers employees etc. further than 75/150 miles from deponent’s residence. But CCP § 1989 prohibits trial court from compelling out-of-state resident (at time of service) to testify in California. Legislative history: 1986 amendment dropped “notwithstanding § 1989,” an intentional omission which must be given effect. Glass 204 CA3d 1048 rejected. San Diego personal injury attorney
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Peace officer personnel records discovery 503
April 9th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Blumberg v Superior Court 197 Cal.App.4th 1245 (2/5) (2011) San-Diego-Auto-Accident-lawyer Peace officer personnel records discovery Ev.C § 1043 motion granted except for older than five years and after subject arrest. Reversed in part. In criminal case, where propensity evidence potentially admissible, recent, post-arrest complaints are discoverable. San Diego personal injury attorney
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