Uncategorized

Employment Contracts — Arbitration Agreements

By on October 12, 2015 - Comments off

signing contract small

Serafin v. Balco Properties Ltd., LLC, (1st Dist., March 16, 2015) — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 2617, 2015 Daily Journal D.A.R. 3048

A woman who was terminated from her job as a property management director filed a wrongful termination action against her employer, asserting a number of causes of action including retaliation, harassment, wrongful termination, unpaid earnings, breach of oral contract, common counts, conversion, and defamation. The defendant moved to stay the case pending arbitration, pursuant to a two-page arbitration agreement, entitled “Mandatory Arbitration Policy,” which the plaintiff had signed a few days after beginning her employment.

Following an arbitration decision and judgment in favor of the defendant the plaintiff appealed,  relying on Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 116 Cal.Rptr.3d 804, which held that an arbitration agreement was procedurally and substantively unconscionable because, inter alia, the employer had failed to provide the employee with a copy of the applicable American Arbitration Association (AAA) rules.  The court of appeal affirmed, distinguishing the facts from its decision in Trivedi, and holding the failure to provide a copy of the applicable arbitration rules did not render the agreement procedurally unconscionable: Read the rest »

Posted in: Uncategorized

 

Emergency Medical Care – Comparative Fault

By on August 17, 2015 - Comments off

crashed car sherriff small

Harb v. City of Bakersfield, — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 877, 2015 Daily Journal D.A.R. 1001

A doctor who suffered a stroke while driving and then ran his car onto a sidewalk was arrested and handcuffed by a police officer who assumed he was intoxicated.  The first ambulance called to the scene drove away, and it was not until a second ambulance arrived later that the doctor was taken to a hospital for treatment. He then filed suit against the responding officer, the ambulance driver and their employers, alleging that the delay in treatment resulted in permanent brain damage, rendering him unable to care for himself.

At trial the defendants requested an instruction on comparative negligence and argued that the alleged negligent failure of the plaintiff to manage his own high blood pressure was a cause of the accident. Following a jury verdict in favor of the defendants, the plaintiff appealed, asserting inter alia that the trial court erred in instructing the jury on comparative fault, in that any alleged negligence prior to the interaction with the defendants was irrelevant. The appellate court agreed and reversed, holding that, as a matter of first impression in California, the defendants should not have been permitted to argue that the plaintiff’s own alleged neglect of his own high blood pressure rendered him responsible for the harm suffered: Read the rest »

 

MICRA Verdicts: Effect of Prior Settlements

By on August 13, 2015 - Comments off

man getting eye exam small

Rashidi v. Moser, (Supreme Court of California, December 15, 2014) 60 Cal.4th 718, 339 P.3d 344, 181 Cal.Rptr.3d 59, 14 Cal. Daily Op. Serv. 13,880, 2014 Daily Journal D.A.R. 16,440

A patient who suffered blindness in one eye following a medical procedure relating to a nosebleed, filed an action for personal injuries against the doctor who performed the procedure. The plaintiff also asserted causes of action against the medical center and the manufacturer of tiny particles used in the procedure to block blood vessels. After settling with the latter two defendants, the plaintiff obtained a jury verdict against the physician, and the trial court reduced the noneconomic damages portion to the MICRA cap of $250,000. Although the defendant doctor did not establish at trial any fault on the part of the settling co-defendants at trial, he sought offsets against the judgment for the pretrial settlements.

The trial court denied the offsets, finding no basis for allocating the settlement sums between economic and noneconomic losses, and noting that the jury made no finding as to the settling defendants’ proportionate fault. The court of appeal held that offsets were required, but the California Supreme Court granted review and reversed as to any reduction for noneconomic losses. The court held that when a defendant who has gone to trial has failed to establish the comparative fault of the settling defendants, a jury’s award of noneconomic damages already reduced to the MICRA limit may not be further diminished by pretrial settlements attributable to noneconomic losses: Read the rest »

 

Products Liability: Replacement Parts

By on March 24, 2009 - Comments off

Taylor v. Elliott Turbomachinery Co., Inc., (1st District, February 25, 2009), 171 Cal.App.4th 564, 90 Cal.Rptr.3d 414, 09 Cal. Daily Op. Serv. 2395, 2009 Daily Journal D.A.R. 2930

A former U.S. Navy sailor who had worked aboard the U.S.S. Hornet in the mid-1960s, filed an action against several manufacturers of equipment used in the ship’s propulsion system. The plaintiff contended that he had contracted mesothelioma as a result of his exposure to asbestos-containing parts contained within various metal valves and other components which he had serviced. Although the equipment had been installed in 1943 and all the asbestos-containing parts had been removed and replaced with parts made by manufacturers other than the defendants, the plaintiff contended that the original manufacturers had a duty to warn of the hazards arising from the foreseeable use of their products, as well as hazards arising from the combination of their product and products manufactured by others.

The trial court granted the manufacturers motion for summary judgment and the court of appeal affirmed, holding that the defendants owed the plaintiff no duty to warn of the dangers inherent in asbestos-containing products supplied by other manufacturers:

Read the rest »