By Kevin Calcagnie on March 9, 2012 -
Sanchez v. Strickland, (Fifth District, November 4, 2011) 133 Cal.Rptr.3d 342, 11 Cal. Daily Op. Serv. 13,660, 2011 Daily Journal D.A.R. 16230
The heirs of three individuals who were killed when their car collided with a truck hauling two semi-trailers filed an action for wrongful death against the owner and operator of the truck. One of the decedents had been hospitalized for four months following the accident, and as a result, his estate had incurred substantial medical bills.
Following a jury verdict in favor of the plaintiffs, the defendants filed a motion to reduce the amount of verdict representing medical expenses to the actual amounts paid or owed. The verdict had included over $7,000 which had been gratuitously written off by one of the decedent’s medical care providers. The trial court granted the motion but the court of appeal modified the award, holding that the limitation on recovery in Howell v. Hamilton Meats (2011) 52 Cal.4th 541 with respect to amounts providers have agreed to accept from insurers, does not extend to amounts gratuitously written off: Read the rest »
By Kevin Calcagnie on February 15, 2012 -
Lewis Operating Corporation v. Superior Court, (Fourth District, November 10, 2011) 132 Cal.Tprt.3d 849, 11 Cal. Daily Op. Serv. 13,810, 2011 Daily Journal D.A.R. 16,468
An apartment resident who was injured while using a treadmill at a ‘tenant-only’ health club/exercise facility filed an action for personal injuries against his landlord and a personal training company. The plaintiff alleged that an employee of the latter had rolled a ball into the treadmill, causing it to flip upward and throw the plaintiff off of the machine.
The defendants moved for summary judgment based upon a ‘release and waiver’ provision in the rental agreement under which tenants assumed all risks of harm arising from use of the health and recreation facilities. The trial court denied the motion, finding that the agreement was unenforceable under Civil Code § 1953, which declares void any provision of a dwelling lease or rental agreement which modifies or waives the tenant or leasee’s right to have the landlord exercise due care to prevent personal injury where that duty is imposed by law. However, the court of appeal issued a peremptory writ of mandate directing the trial court to grant the motion, holding that a landlord’s duty to maintain amenities does not necessarily trigger the application of § 1953:
Read the rest »
By Kevin Calcagnie on January 7, 2012 -
Ceja v. Department of Transportation, (Fifth District, November 12, 2011) 2011 WL 6307881, — Cal.Rptr. 3d —-
The heirs of two men who were killed when their vehicle crossed a center median on a six-lane state highway and collided with oncoming vehicles, filed an action for wrongful death against the Department of Transportation. The plaintiffs alleged that the roadway was in a dangerous condition due the absence of a median barrier to prevent cross-median accidents, despite a number of prior similar collisions. At trial the plaintiffs introduced evidence showing there had been a history of accidents at the location, and that several years earlier state engineers had recommended a barrier, which had not yet been installed as of the 2003 accident.
The trial court granted a motion in limine to exclude evidence of accidents which had occurred prior to 1994, when the roadway had been widened from 4 lanes to 6, finding that the conditions were substantially different than those which existed at the time of the accident. Following a jury verdict in favor of the State, the plaintiffs appealed, contending that the trial court had erroneously excluded the pre-1994 accidents. However, the court of appeal affirmed the judgment, holding that the trial court had not abused its discretion in excluding accidents which had occurred before the highway was substantially changed: Read the rest »
By Kevin Calcagnie on December 22, 2011 -
Agustus Vogt v. Herron Construction, — Cal.Rptr.3d —-, 2011 WL 5142986, 11 Cal. Daily Op. Serv. 13,556
A concrete subcontractor was injured at a construction site when he was run over by a personal vehicle owned and driven by an employee of another contractor. He then filed an action against the driver’s employer under the doctrine of respondeat superior, alleging that the employee had accidentally run him over while moving his own pickup truck in order to allow the concrete subcontractor’s employees to begin pouring cement nearby.
The defendant moved for summary judgment, contending that its employee was not acting in the course and scope of his employment at the time of the accident, because he was moving his personal vehicle, which was not required for his job, and was doing so for a non-work-related purpose of preventing damage to the truck from splashing of wet concrete.
The trial court granted summary judgment but the court of appeal reversed, holding that by moving his truck, the worker was furthering the employer’s overall enterprise, and that moving the truck was necessary to “his comfort, convenience and welfare while on the job”: Read the rest »
By Kevin Calcagnie on November 29, 2011 -
Cadam v. Somerset Gardens Townhouse HOA, (Second District, September 28, 2011, as modified October 28, 2011) — Cal.Rptr.3d —-, 2011 WL 5110249, 11 Cal. Daily Op. Serv. 13,305
A 63 year old woman who was injured when she fell after tripping on a separation in a concrete walkway next to the townhome she was leasing, filed an action against a homeowner’s association and its management firm. Asserting causes of action for premises liability and negligence, the plaintiff alleged that the walkway had shifted and adjacent sections had separated such that they differed in height by three-fourths to seven-eighths of an inch, creating a dangerous condition.
Following a jury verdict in favor of the plaintiff, the trial court granted the defendants’ motion for judgment notwithstanding the verdict. Although the HOA association president had testified that a defect of one-half inch or more is “probably” dangerous, the court found that no reasonable person could find that the condition was not a trivial defect under the circumstances.
The court of appeal affirmed, holding that “[a] trivial defect is no less trivial when it exists on a walkway in a privately owned townhome development”: Read the rest »
By Kevin Calcagnie on October 1, 2011 -
Bullock v. Philip Morris USA, Inc., (Second District, August 17, 2011) — Cal.Rptr.3d —-, 2011 WL 3599605, 11 Cal. Daily Op. Serv. 10,492
A woman who contracted lung cancer after smoking for over 40 years filed suit against Philip Morris, alleging that the cigarettes were negligently and defectively designed and that the defendant failed to adequately warn her of the dangers of smoking. The plaintiff also alleged that the defendant intentionally and negligently misrepresented to the public and the medical and scientific community the adverse health effects of smoking, and concealed material facts relating to the dangers of cigarettes. A jury found that Philip Morris was guilty of malice, fraud or oppression with respect to each count, and awarded Bullock $850,000 in compensatory damages, as well as $13.8 million in punitive damages.
On appeal the Defendant contended that the punitive damages award was constitutionally excessive, and that a ratio of one-to-one would be appropriate in light of the substantial compensatory damages award. However, the Court of Appeal affirmed the judgment, holding that in light of the “extreme reprehensibility of Philip Morris’s misconduct, including the vast scale and profitability of its course of misconduct, and its financial condition,” an award of approximately 16 times the compensatory damages was justified and not unconstitutionally excessive:
Read the rest »
By Kevin Calcagnie on September 12, 2011 -
Boschma v. Home Loan Center, Inc., (Fourth District, August 10, 2011) — Cal.Rptr.3d —-, 2011 WL 3486440, 11 Cal. Daily Op. Serv. 10, 237, 2011 Daily Journal D.A.R. 12,103
A couple who refinanced their existing home loan utilizing an “Option ARM” filed an action against the lender, alleging that the defendant’s loan documents failed to adequately and accurately disclose the essential terms of the loan, and that the plaintiffs would suffer negative amortization if they made monthly payments according to the payment schedule provided prior to the closing of the loan. Asserting causes of action for fraud and violations of Business and Professions Code section 17200 et seq., the plaintiffs alleged that the defendant utilized a “teaser” interest rate of 1.25 percent for the first month of the 30 year loan which bore no relation to the actual cost of credit, and that the payment schedule did not clearly indicate it was based upon the teaser rate rather than the APR listed on the loan.
The trial court sustained the defendant’s demurrer to the second amended complaint without leave to amend, finding that the loan documentation adequately described the nature of Option ARMs, and that the loan documents showed detailed, highlighted and repeated warnings regarding the interest rate changes, adequacy of payments to cover both principal and interest, and the prospect of the negative amortization. The court of appeal reversed, rejecting the defendant’s contention that strict compliance with the federal Truth in Lending Act (TILA, 15 U.S.C. § 1601 et seq.) provides a safe-harbor from such claims: Read the rest »
By Kevin Calcagnie on August 10, 2011 -
Diaz v. Carcamo, (California Supreme Court, June 23, 2011) — P.3d —-, 2011 WL 2473597
A woman who was injured in a freeway collision filed an action for negligence against the driver of a truck which collided with her vehicle. The plaintiff also sued the driver’s employer under a theory of negligent hiring and retention. The defendant employer offered to admit vicarious liability, arguing that, under Armenta v. Churchill (1954) 42 Cal.2d 448, its admission should preclude a cause of action for negligent hiring, retention and entrustment. However, at trial the court permitted the plaintiff to proceed on the negligent hiring and retention theory, and over objection of the defendants, allowed evidence of the driver’s prior accidents and employment history.
The court of appeal affirmed a jury verdict in favor of the plaintiff, holding that Armenta was distinguishable because it involved entrustment instead of hiring, and did not involve an allocation of comparative fault. However, the California Supreme Court reversed, holding that where an employer admits vicarious liability for any negligent driving by its employees, a plaintiff may not pursue a negligent entrustment, hiring or retention claim: Read the rest »
By Kevin Calcagnie on June 28, 2011 -
Iversen v. California Village Homeowners Association, (Second District, March 23, 2011) — Cal.Rptr.3d —-, 193 Cal.App.4th 951, 2011 WL 1034261, 11 Cal. Daily Op. Serv. 3584, 2011 Daily Journal D.A.R. 4282
A heating and refrigeration contractor who was injured in a fall from a ladder while servicing air conditioners at a condominium complex, filed suit against the homeowner’s association which had hired him. The plaintiff asserted a negligence per se cause of action, contending that the defendant had violated Cal-OSHA regulations which require a cage or other safety device for ladders taller than 20 feet, such as the one being used at the time of the accident.
The defendant moved for summary judgment, arguing that because the plaintiff was an independent contractor, and not an employee, it was not required to comply with Cal-OSHA regulations and did not owe him a duty of care. The trial court granted the motion and the court of appeal affirmed, holding that Cal-OSHA regulations do not apply to an independent contractor, and therefore could not be used by the plaintiff to establish negligence per se: Read the rest »
By Kevin Calcagnie on May 25, 2011 -
Johnson & Johnson v. Superior Court, (Second District, January 20, 2011) — Cal.Rptr.3d —-, 192 Cal.App.4th 757, 2011 WL 169407, 11 Cal.Daily Op. Serv. 1918, 2011 Daily Journal D.A.R. 2268
A boy who developed a serious skin condition as a result of a severe adverse reaction to an over-the-counter (OTC) pain reliever filed a products liability action against the manufacturer of the drug and its parent company, alleging that the defendants had failed to provide adequate warnings of the risks to consumers. The plaintiffs complaint asserted a claim for punitive damages, contending that the defendants had long known of the risk of the syndrome suffered by the plaintiff, but had misrepresented study results to the FDA in obtaining approval for the drug.
The Defendants moved for summary adjudication of the punitive damages claim, arguing that the product’s label had been approved by the FDA consistent with FDA regulations, and that regardless of whether they could or should have said something more explicit, their “FDA-approved labeling cannot conceivably evidence despicable conduct or a conscious disregard for safety.” The trial court denied the motion, and the Court of Appeal denied the defendants’ petition for a writ of mandate, holding that the evidence raised a triable issue of fact as to whether the manufacturer failed to warn, and whether there was a conscious disregard for safety: Read the rest »
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