Watching The River(island) Run…

Posted by Dowling Aaron on

Last year, we posted an article regarding the January 2013 California Supreme Court decision in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn., 55 Cal. 4th 1169 (2013), in which the Court reversed almost 80 years of precedent by ruling that the parol evidence rule exception for fraud allowed use of extrinsic evidence of […]

Continue to Article »

Is NBC entitled to a peremptory grant of mandate directing summary judgment where television program aired more than two years prior to filing of purported creators’ complaint for breach of implied contract?

Posted by Steven Vartabedian on

Whenever I lecture on writ practice, the question inevitably arises whether the appellate courts ever grant writ relief compelling the grant of a summary judgment motion denied in the trial court. My answer: rarely, mostly because, if the moving party is correct, it will prevail at trial; and, if it doesn’t, it still has the […]

Continue to Article »

Does order for a medical reevaluation of an employee after she has returned to work following Family Medical Leave Act leave violate her FMLA rights?

Posted by Steven Vartabedian on

In White v. County of Los Angeles (filed 4/15/14) 2014 DJDAR 4726, White took FMLA leave from her position of district attorney’s office investigator as a result of emotional/medication difficulties she experienced. Her psychiatrist certified her condition, which was expected to hospitalize her for 2 weeks, followed by 2 weeks of outpatient care plus possibly […]

Continue to Article »

May deficiency in special verdict on essential elements required to establish liability be satisfied by trial judge inference and the finding affirmed on appeal as harmless error?

Posted by Steven Vartabedian on

In what it described as a “first impression case,” the Court of Appeal, Second District, Division Six, affirmed the trial court’s inferring necessary findings from a defective special verdict because the defect constituted “harmless error.” The very first sentence of the court’s opinion in Taylor v. Nabors Drilling USA, LP (filed 1/13/14) B241914 gives this […]

Continue to Article »

Is the stipulation to “high-low” arbitration binding only if reflected in the judgment in the case?

Posted by Steven Vartabedian on

In Horath v. Hess (filed 4/10/14) D063124 & D063709, prior to arbitration of an automobile personal injury case, the parties stipulated in writing to the acceptance of a minimum award of $44,000 and a maximum of $100,000; the agreement was not disclosed to the arbitrator who was to independently determine his award. Any costs awarded […]

Continue to Article »

May an HMO be found negligent in the delegation of its statutory duty to reimburse non-contracting emergency physicians?

Posted by Steven Vartabedian on

Emergency room physicians have a legal duty to treat a patient regardless of patient’s inability to pay the physician’s bill. Where patient is enrolled in an HMO (Health Maintenance Organization care service plan), even where the emergency physician is not under contract to the HMO, the obligation to pay for the physician’s services still rests […]

Continue to Article »

Is homebuilder’s contractual construction-defect pre-litigation procedure unenforceable due to its variance from statutory procedure, and unenforceable when used with subsequent home purchasers?

Posted by Steven Vartabedian on

In The McCaffrey Group, Inc. v. Superior Court (filed 3/24/14) F066080, the trial court denied homebuilder McCaffrey’s “Motion to Compel ADR” brought in an action filed by real parties in interest who were the owners of 24 homes built by McCaffrey which allegedly contained construction defects. McCaffrey petitioned for writ of mandate to enforce provisions […]

Continue to Article »

Where settlement agreement provides for a discounted principal amount to be paid in installments and the entire original liability becomes due because of a late payment, is default judgment for amount in excess an unenforceable penalty?

Posted by Steven Vartabedian on

In promissory note cases, it is not uncommon in my role as a mediator to assist parties in framing terms of a settlement that provides for installment payments. The creditor normally wants some “teeth” in the agreement in exchange for its promise to accept gradual payments rather than the full sum immediately upon settlement. On […]

Continue to Article »

Does the alleged defective design of car’s seat allow application of “consumer expectation” test, engineer strict-liability, and non-apportionment of general damages among designers?

Posted by Steven Vartabedian on

In Romine v. Johnson Controls, Inc. (filed 3/17/14) B239761, the chain collision caused by a speeding vehicle crashing into a line of vehicles stopped at an intersection resulted in the striking of plaintiff’s vehicle, rendering her a quadriplegic. The force of the collision caused plaintiff’s seatback to collapse and her head violently struck the vehicles […]

Continue to Article »

Does selling real estate broker incur disclosure liability to buyer who relied on reference to 24 year old earthquake-zone study’s statement that property was “buildable”?

Posted by Steven Vartabedian on

Under the circumstances of Saffie v. Schmeling (filed 3/7/14) E055716, the answer is no. In 2006, seller’s broker posted in the multiple listing service (MLS) the listing of a commercial parcel that stated the property was within an earthquake study zone, but a fault hazard zone investigation by a licensed geologist had determined the parcel […]

Continue to Article »