Clerk’s wage and hour 492
April 9th, 2012 
admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Zelasco-Barrett v Brayton-Purcell 198 Cal.App.4th 582 (1/3) (2011) Wage-and-hour claim: Law firm classified law clerk as exempt. Its MSJ granted, affirmed. San-Diego-Auto-Accident-lawyer [1] Clerk’s duties included drafting pleadings, managing discovery, etc. Although Plaintiff’s work was supervised and final product was always the lawyer’s, clerks work required exercise of discretion and independent judgment, and was not “routine mental, manual, mechanical, or physical work.” San Diego personal injury attorney
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Defamation and racial discrimination 491
April 7th, 2012 admin Racial discrimination is another area of San-Diego-Personal-Injury-attorney.com
Martin v Inland Empire Utilities Agency 198 Cal.App.4th 611 (4/2) (2011) Anti-SLAPP. M. sued former employer for defamation and racial discrimination. Some defamatory statements made at IEUA’s board meeting. Anti-SLAPP against defamation claim granted with leave to amend (!), denied as to other claims, Defendants’ objections not ruled on, and Defendants’ attorney fees denied; affirmed. [1] Discrimination claims not subject to anti-SLAPP, else “employers could discriminate with impunity.” San-Diego-Auto-Accident-lawyer [2] Trial court’s granting anti-SLAPP with leave to amend is error, but harmless where order effectively denied the motion. [3] Defendants’ failure to show defamatory statements were protected activity is fatal to anti-SLAPP. M.’s defective pleading may have been demurrable, but not subject to anti-SLAPP. [4] Trial court erred by not ruling on Defendants’ objections before ruling on motion, but harmless where even if all objections were sustained, motion was still inadequate. [5] Attorney fees denied. Appeal fails for failure to separately appeal from post-trial motion’s denial, for failure to prepare any record of motion, its hearing, or its ruling, and for not being prevailing parties (who are thus not entitled to attorney fees in any case). San Diego personal injury attorney
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Barrese v Murray case 490
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Barrese v Murray 198 Cal.App.4th 494 (2/8) (2011) Marvin v Marvin claim. Jury verdict $5.7M. On new trial motion, trial judge stated Barrese could not be believed, but that her power was limited to excessive verdict review, that she lacked authority to act as 13th juror based on credibility. San-Diego-Auto-Accident-lawyer New trial denied, reversed. [1] Trial court has plenary power to grant new trial where weight of evidence is contrary to verdict. This power is strongly supported by both courts of appeal and supreme court (citing even a 1893 case). But it must be more than disagreeing with the verdict, and extends to consideration whether verdict supported by sufficient credible evidence. [2] Trial court’s 60-day jurisdictional limit on new trial ruling does not apply to appellate reversal with directions to consider new trial motion. [Case facts confirm F Scott’s Fitzgerald’s comment about the rich are different.] San Diego personal injury attorney
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Patient mistreatment 489
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Carter v Prime Healthcare Paradise Valley 198 Cal.App.4th 396 (4/1) (2011) Decedent Carter treated at hospital and rehabilitation center. San-Diego-Auto-Accident-lawyer Due to mistreatment at center, two hospital readmissions where treatment was substandard and neglectful. Heirs sued for elder abuse et al. Hospital’s demurrer sustained, affirmed. [1] Elder Abuse Act provides enhanced remedies but only for reckless, etc. conduct, standard equivalent to punitive-damage standard. Malpractice (inadequate crash cart, failure to properly medicate, etc.) not ‘sufficiently egregious’ to constitute neglect within elder abuse statutes. Court surveys cases finding adequate showing. San Diego personal injury attorney
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US airways employee injury 488
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
SeaBright Ins. Co. v US Airways 52 Cal.4th 590 (2011) Kennard 7-0, mostly. US Airways hired contractor to maintain its baggage conveyer. Contractor’s employee injured. San-Diego-Auto-Accident-lawyer SeaBright sued under subrogation Privette 5 Cal.4th 689. Airline’s MSJ granted, affirmed. [1] Hirer implicitly delegates to independent contractor tort duty for safe place to work. Delegation includes duty to comply with statutory and regulatory requirements, but hirer retains duty for its own employees. [2] Where hirer failed to comply with workplace safety requirements, Privette still applies. Duty to comply with Cal-OSHA regulations is also implicitly delegated. The duty to contractors’ employee would have existed only because the hirer had hired the contractor to do theat very work; therefore it does not fall within the nondelegable duties doctrine. San Diego personal injury attorney
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Inverse condemnation for flooding 487
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Gutierrez v County of San Bernardino 198 Cal.App.4th 831 (4/2) (2011) Inverse condemnation for flooding. Storm water flowed across unimproved to paved road county roads, and escaped road’s recently installed flood-control K-rails. Trial judgment for county, affirmed. [1] Unimproved roadway is raw land “not deliberately acted upon by the county” and thus not a public improvement, the sine qua non of inverse condemnation. San-Diego-Auto-Accident-lawyer County’s fee ownership is insufficient in the absence of a public improvement. [2] Paved road is a public improvement, but no showing plaintiffs’ damages wee any greater than had road not been built. [3] Rule of reasonableness Belair 47 Cal.3d 550 [happy to see my case cited] applies to installing K-rails as expedient matter. No showing the flooding worse with K-rails than would have occurred without them. Strict liability theories rejected. San Diego personal injury attorney
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Use of image without permission 486
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Aroa Marketing v Hartford Ins. Co. of Midwest 198 Cal.App.4th 781 (2/4) (2011) A model sued AM for using her image without permission, interfering with he right of publicity. Hartford declined coverage and AM sued. San-Diego-Auto-Accident-lawyer Demurrer sustained, affirmed. [1] Publicity right is a species of privacy and covered under CGL unless excluded. [2] Policy’s exclusion of intellectual property claims encompasses publicity rights Comedy III 25 Cal.4th 387. 53known. [2] Even where no confidential relationship exists, fraudulent concealment claim stated where facts lie within defendants’ knowledge. [3] Implied warranty claim stated where defendants sold products to companies for use by their own employees in the manufacturing process. San Diego personal injury attorney
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False credit history 485
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Vaca v Wachovia Mortgage Corp. 198 Cal.App.4th 737 (4/3) (2011) H and his mother created false credit history for his three minor children and then using that history, he purchased two properties, with mortgage from defendant banks (2001). Fraud discovered in 2004. San-Diego-Auto-Accident-lawyer Children’s trustee sued H and mother, June 2005, and sued banks in July 2009, alleging banks knew of Fraud and thus charged higher interest rates “to unjustly enrich themselves.” During first case, trustee had many contacts with banks, seeking assistance from them. Demurrer sustained, affirmed. [1] Continuing wrong doctrine inapplicable where alleged wrongdoing was in making loans, discrete events. Continuing injuries do not delay running of statute of limitations. [2] No equitable estoppel for claimed defendants’ concealing their identities, where trustee knew identity at least by 2007, well before the statute of limitations ran. Claimed concealment did not prevent trustee’s timely complaint. (Note distinction between equitable tolling and equitable estoppel.) San Diego personal injury attorney
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Toxic chemicals 484
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Jones v ConocoPhillips Co. 198 Cal.App.4th 1187 (2/7) (2011) Jones claimed injury from 34 listed toxic chemicals manufactured by many named defendants, but no specification of which chemical had toxins or how they caused any injury except in conclusory fashion. San-Diego-Auto-Accident-lawyer Demurrer sustained, reversed. [1] No requirement to plead specific facts where they are not yet adequately known. [2] Even where no confidential relationship exists, fraudulent concealment claim stated where facts lie within defendants’ knowledge. [3] Implied warranty claim stated where defendants sold products to companies for use by their own employees in the manufacturing process. San Diego personal injury attorney
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Mortgages sold at inflated values 483
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Bank of America v Superior Court 198 Cal.App.4th 862 (2/3) (2011) Plaintiffs claimed defendant Countrywide fraudulently concealed scheme of selling pooled mortgages at inflated values. San-Diego-Auto-Accident-lawyer The scheme’s collapse “led to devastated home values.” Demurrer overruled, certified, CCP § 166.1, and writ issued. [1] No separate duty to disclose intent to commit a tort apart from the duty involved with the tort itself. Countrywide did not have duty to disclose to borrowers an intent to defraud investors. [2] Where all homeowners suffered decline in value, whether they borrowed from Countrywide, another lender, or not at all, no possible nexus of causation. San Diego personal injury attorney
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