Injured at workplace 462
April 5th, 2012 
admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Vogt v Herron Construction, Inc. 200 Cal.App.4th 643 (4/2) (2011) Vogt, employee of subcontractor #1, injured by Cruz, employee of subcontractor #2, Herron, at construction worksite. San-Diego-Auto-Accident-lawyer.com Vogt asked Cruz to move his personal truck to accommodate #1’s work, and Cruz ran over Vogt. Common practice for workers to park their vehicles and to move them during the workday to accommodate other vehicles or the work. Herron’s MSJ, for no respondeat superior, granted, reversed. [1] By moving his truck, Cruz furthered the overall construction work and the risk was inherent to the enterprise. Further, even if the reason Cruz moved the truck was to prevent damage to his truck, moving it was for his comfort, convenience, and welfare while on the job. Either is sufficient to find Cruz in the course and scope of employment. San Diego personal injury attorney
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Mechanics foreclosure 461
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Alpha & Omega Development, LP v Whillock Contracting, Inc. 200 Cal.App.4th 656 (4/1) (2011) Whillock tried to foreclose mechanics’ lien and recorded lis pendens. Lis pendens ordered expunged and then case settled. San-Diego-Auto-Accident-lawyer.com Alpha sued Whillock for slander of title by wrongfully recording the lis pendens. Whillock filed anti-SLAPP CCP § 425.16 granted, affirmed. [1] Recordation of a properly prepared lis pendens is absolutely privileged CC § 47(b). No exception to privilege for “lack of evidentiary merit.” Not only absent from the statute, but would be a rewrite of the statute. San Diego personal injury attorney
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Police destroys marijuana used for medicinal purposes 460
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Barnett v State Farm General Ins. Co. 200 Cal.App.4th 536 (4/3) (2011) Police using search warrant seized and later destroyed marijuana plants, etc. that Barnett used for medicinal purposes. San-Diego-Auto-Accident-lawyer.com Insurer refused coverage on claim plants were lost to theft. Insurer’s MSJ granted, affirmed. []1 Words ‘theft’ and ‘stolen’ are used in the common and ordinary meaning. Taking property under a claim of right negates the criminal intent necessary for theft. Officer’s subjective intent does not render otherwise facially valid search warrant invalid. San Diego personal injury attorney
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Frisk & Avanti sued by Northwest 459
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Frisk v Superior Court 200 Cal.App.4th 402 (4/3) (2011) Northwest sued Frisk & Avanti. Avanti filed timely CCP § 170.6 peremptory challenge on July 19, but Northwest dismissed Avanti on July 22. San-Diego-Auto-Accident-lawyer.com Second judge determined § 170.6 challenge now moot, July 26. Frisk objected and filed writ, denied. [1] Challenge is not effective until court determines the timeliness and proper form, a significant judicial event. If the party who has brought the writ is no longer a party, the issue of bias against that party is moot. [2] An older case’s precedential authority may be effectively dissipated by a later trend of decision as by a statement expressly overruling it (here, a 1985 case). [3] CRC 8.490(b) rule (finality 30 days after decision) applies also to a Palma-notice writ denial. San Diego personal injury attorney
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Clark v California Ins. Guarantee Assn. lawsuit 458
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Clark v California Ins. Guarantee Assn. 200 Cal.App.4th 391 (4/3) (2011) In underlying case Clark awarded $670K plus costs & interest, $70K. San-Diego-Auto-Accident-lawyer.com That Defendant’s CGL carrier went insolvent CIGA took over. CGL had supplemental payments clause (costs, interest). Clark sued CIGA CIGA’s MSJ granted, affirmed. [1] Ins C § 11580 direct action may recover damage award but not supplemental payments. Third-party judgment creditor is merely an incidental beneficiary of obligation carrier owes to insured. San Diego personal injury attorney
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Trip-and-fall walkway 457
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Cadam v Somerset Gardens Townhouse HOA 200 Cal.App.4th 383 (2/6) (2011) Trip-and-fall case on 7/8” walkway separation at recently-built condominium. San-Diego-Auto-Accident-lawyer.com Jury verdict for Plaintiff, but JNOV granted for Defendant, affirmed. [1] Accident happened at noon on bright day, while Plaintiff talking to HOA’s gardener. She caught her shoe in walkway slab separations. Court reviews evidence including photographs and finds as a matter of law, this is a trivial defect. Even the HOA’s president’s testimony that over a 1 /2” defect is probably dangerous does not change result as “within common knowledge of lay judges and jurors what type of a defect in a sidewalk is dangerous.” [2] Even with actual notice, landowner has not duty to repair minor or trivial defects. San Diego personal injury attorney
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Fraud on property 456
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Duncan v The McCaffrey Group, Inc. 200 Cal.App.4th 346 (5) (2011)
B&PC § 17200, fraud etc. on property marketed as large-house-only, upscale development but in fact intended smaller tract houses on some lots, thus depressing lots’ value. San-Diego-Auto-Accident-lawyer.com McCaffrey’s MSJ, inter alia that parol evidence rule barred plaintiff’s evidence, granted, reversed. [1] Parol evidence rule bars evidence varying or contradicting integrated contract, but not evidence offered to show other facts not changing the contracts’ terms, and not to promissory fraud cases. [2] Reliance on false advertising and fraudulent business properly pleaded where one of the immediate causes of injury and where a substantial factor in decision. Need not allege sole or decisive cause or dominant factor in influencing Plaintiffs’ decisions. San Diego personal injury attorney
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Car dealer lawsuit 455
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Sanchez v Valencia Holding Co. LLC 200 Cal.App.4th 11 (2/1) (2011) Class action against car dealer, Consumers Legal Remedy Act CC § 1750, et al. San-Diego-Auto-Accident-lawyer.com Valencia moved to compel arbitration, denied in that CLRA voids class action waiver, affirmed on different grounds. [1] Arbitration clause unconscionable. Procedurally in that adhesive contract. Substantively: harsh, one-sided terms. $100K threshold for appeal, injunctions appealable, advance payment of arbitration fees and costs, and exempting several remedies e.g. repossession, all of which seem facially neutral but in fact benefit the dealer. San Diego personal injury attorney
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Excavator malfunction 454
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Palp, Inc. v Williamsburg National Ins. Co. 200 Cal.App.4th 282 (4/3) (2011) Palp’s excavator, while loading a third party’s truck, struck Plaintiff’s truck. San-Diego-Auto-Accident-lawyer.com Palp’s insurance excluded coverage for moving property by a mechanical device not attached to the truck. www’s MSJ granted, reversed. [1] Exclusions read narrowly and reasonable expectation of insured applied to scope of exclusion. Exclusion applies only where injury due to a mechanical device related to Palp’s covered vehicle. San Diego personal injury attorney
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Motorcycle injury 453
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Amezcua v Los Angeles Harley-Davidson, Inc. 200 Cal.App.4th 217 (2/8) (2011) Amezcua injured in annual motorcycle group ride organized by dealer LAHD, whose MSJ granted, affirmed. San-Diego-Auto-Accident-lawyer.com [1] Primary assumption of risk doctrine applies. “Organized, noncompetitive recreational” motorcycle riding on LA freeways presents a well-known risk. Primary assumption of risk not limited to written exculpatory agreements. [2] Nothing LAHD did–including not having a police escort–increased the risk inherent in the activity. San Diego personal injury attorney
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