May a jury conclude that, although the availability of an employee’s vehicle confers some benefit on the employer, it did not confer sufficient benefit to render the employer vicariously liable for the negligent operation of the vehicle by employee while driving home from the workplace?

Posted by Dowling Aaron on

After exiting employer Tamco’s parking lot to go home, employee Luis Del Rosario’s vehicle collided with the motorcycle of San Bernardino County Deputy Sheriff Daniel Lobo, killing Lobo; Tamco was sued as a defendant in the wrongful death claim of Lobo’s heirs. Four years ago, in Lobo v. Tamco (2010) 182 Cal. App.4th 297 (Tamco […]

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In a wage and hour class action, where a corporation with no employees owns a corporation with employees, and the former exercises some control over the latter and its employees, may the former be an “employer” of the latter’s employees?

Posted by Steven Vartabedian on

The answer: yes, as stated in the very first paragraph of Castaneda v. Ensign Group, Inc. (filed 9/15/14) B249119, following rehearing.  There, the Court of Appeal, Second Appellate District, Division Six, reversed the summary judgment that had been granted dismissing Ensign from the action. Castaneda filed a class action on behalf of himself and other […]

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Does in-home caregiver assume the risk of injury caused by the acts of the Alzheimer patient that care was being provided to?

Posted by Steven Vartabedian on

In Gregory v, Cott (filed 8/4/14) 2014 DJDAR 10271, the family of 85-year-old Alzheimer patient Lorraine Cott had contracted with a home health care agency to assist her. The agency assigned its employee, plaintiff Carolyn Gregory, to perform services under this contract. Gregory was trained in caring for Alzheimer’s patients, had performed such assignments in […]

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Is evidence of shopping center’s subsequent remedial measure of hiring a security service admissible to prove causation of an armed robbery suffered by a tenant?

Posted by Steven Vartabedian on

In McIntyre v .The Colonies-Pacific, LLC (filed 7/31/14) D065469, at his jewelry store located in defendant’s shopping center, plaintiff McIntyre and his daughter were pistol whipped by two men who restrained them and robbed the store; McIntyre recognized the perpetrators as looking suspicious when they were in the store a week earlier. A few months […]

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May an employer attribute commission wages to a different pay period than when paid to satisfy state’s compensation requirements?

Posted by Steven Vartabedian on

The fact that commissions earned by employees can both be delayed in payment and distributed in uneven increments creates some challenges. Under Federal law, an employer may attribute commissions to when they are earned (rather than when paid), or to other pay periods, so long as an employee is paid minimum wage in each pay […]

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Cal Supreme Court: Arbitration agreement waiver of right to class procedure approved; but right to bring PAGA representative action cannot be waived.

Posted by Steven Vartabedian on

In Iskanian v. CLS Transportation Los Angeles, LLC (filed 6/23/14) S20432, the California Supreme Court majority has delivered a split decision on the question of whether an arbitration agreement that waives a party’s right to bring a representative action on behalf of others is enforceable. Representative actions in the form of class actions brought to […]

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Must a managed care plan pay for Medi-Cal beneficiary hospital services in accordance with the providing hospital’s full billed charges concerning post-stabilization services not under contract?

Posted by Steven Vartabedian on

In Children’s Hospital Central California v. Blue Cross of California (filed 6/10/14) F065603, Blue Cross, in providing a managed care plan, paid $4.2 million to Children’s Hospital for a 10-month period of coverage without written contract rates for post-stabilization care. Payment was based on the Medi-Cal rates paid by the government. Children’s Hospital sued for […]

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Does owner of business premises owe duty to protect family members of persons who work there from secondary exposure to asbestos incurred by worker on premises, but exposed to family members away from premises?

Posted by Steven Vartabedian on

In Haver v. BNSF Railway Co. (filed 6/3/14) B246527, Lynn Haver contracted mesothelioma and died as a result of secondary exposure to asbestos. Her former husband was exposed to products and equipment containing asbestos while working for defendant’s predecessor railway company in the 1970’s. Asbestos evidently adhered to his clothing, and then was transferred to […]

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Must a wage-and-hour misclassification class action judgment be reversed because the trial court denied defendant employer the opportunity to impeach plaintiffs’ statistical model where the sampling belied consistency in class member work habits?

Posted by Steven Vartabedian on

In the much-awaited California Supreme Court opinion of Duran v. U.S. Bank National Association (filed 5/29/14) S200923, the state high court answered affirmatively, reversing the judgment. There, loan officers sued for unpaid overtime, claiming they had been misclassified as exempt employees under the outside salesperson exemption, exempting from overtime pay entitlement employees who spend more […]

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Is the trial court’s denial of new trial, reversible because appellant court finds court’s express statement of reasons for denial legally inconsistent, even though absent that statement the judgment would have been affirmed?

Posted by Steven Vartabedian on

One lesson I learned from 29 years on the bench was to take care not to say too much when making a ruling. This can be difficult, because conscientious people tend to explain the reasoning behind a conclusion reached. David v. Hernandez (filed 5/22/14) 2d Civil No. B245342 demonstrates the trouble with saying too much. […]

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