Snakes in the Pendergrass – California Supreme Court Fortifies Fraud Exception to Parol Evidence Rule in Riverisland Cold Storage v. Fresno-Madera Production Credit Association

Posted by Dowling Aaron on

For more than 75 years, the California fraud exception to the parol evidence rule in written contract cases has been limited to evidence which tends “to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance […]

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What constitutes a reasonable offer to compromise under California CCP section 998?

Posted by Steven Vartabedian on

Even in cases not involving an award of attorney fees, this question concerns significant financial consequences, in addition to awarded damages, to a non-prevailing party–not uncommonly to the tune of half a million dollars. Such was the case in Whatley-Miller v. Cooper (published opinion filed January 15, 2013, No. B237335). Plaintiffs, the survivors of Thomas […]

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Bystander recovery for emotional distress barred because sister unaware that defendant’s defective scuba-diving product caused brother’s death, even though while diving with him she observed him to stop breathing.

Posted by Steven Vartabedian on

When a person stops breathing, a typical reaction by one in that person’s company is to think the person has had a heart attack. Of course that may not always be a correct assumption. In Fortman v. Forvaltningsbolaget Insulan AB, B23718 (Court of Appeal, Second Appellate District, Division 3, filed January 10, 2013), the emotionally […]

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California’s Disabled Persons Act mandatorily grants attorney fees to prevailing defendant.

Posted by Steven Vartabedian on

Can a business sued for denial of disabled person access mandatorily recover its attorney fees upon successful defense of an action that includes both claims of violation of Cal. Civil Code section 55 and federal ADA? The California Supreme Court has answered yes in Jankey v. Lee (filed December 17, 2012) 2012 DJDAR 16809, disagreeing […]

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Police officer disabled from performing strenuous street duties not eligible for administrative job accommodation due to that job’s essential strenuous duties.

Posted by Steven Vartabedian on

In Lui v. City and County of San Francisco (filed December 11, 2012) 2012 DJDAR 16496, plaintiff, a sworn police officer with defendant since 1981, suffered a heart attack and took 11 months of disability leave. He then returned to work to take a 1-year temporary modified duty (TMD) position in the police records room. […]

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Landlord’s claim against its restaurant tenant’s insurance policy is not barred by the policy’s interinsured exclusion

Posted by Steven Vartabedian on

Is an “insured” not an “insured” excluded by a policy clause that excludes coverage for a claim of one insured against another insured? As oxymoronic as this question may sound, such are the type of contractual interpretation inquiries that frequently occur when it comes to insurance coverage and exclusion issues. In Gemini Insurance Co. v. […]

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In spite of documentation of independent contractor relationship, Auto Club may be liable for acts of road service technician based on agency.

Posted by Steven Vartabedian on

When I read this opinion, my first thought was “Oh, oh, there goes my AAA membership fee.” An increase in my annual fee may not necessarily occur. But the California Court of Appeal, Second Appellate District (Division Two) opinion in Monarrez v. Automobile Club of Southern California (filed November 20, 2012) 2012 DJDAR 15745, will […]

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“Lost profits” expert evidence concerning projected upstart dental implant manufacturer too speculative.

Posted by Steven Vartabedian on

The California Supreme Court in Sargon Enterprises, Inc. v. University of Southern California (filed November 26, 2012, S191550) starts its reasoning concerning a trial court’s discretion in excluding expert testimony with the following advice of Federal Judge Friendly written 50 years ago: “[A court] must be exceeding careful not to set the threshold too high. […]

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Tort damages concerning domestic pets are not limited by market value.

Posted by Steven Vartabedian on

“[A]nimals are special, sentient beings, because unlike other forms of property, animals feel pain, suffer and die.” With words like these, the California Court of Appeal, Second Appellate District, Division One, rejected defendants argument, an argument accepted by the trial courts, that the measure of damages are limited to the market value of the injured […]

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