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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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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 […]

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May an adhesive, yet bilateral, employment arbitration clause that is not unduly harsh, oppressive or one-sided be found unconscionable and unenforceable?

Posted by Steven Vartabedian on

In Sanchez v. CarMax Auto Superstores California, LLC (filed 2/6/14, publication ordered 3/4/14) B244772, plaintiff signed an arbitration agreement as a part of his employment application. He was hired as service manager and remained in that position until he was terminated about 4½ years later. In his lawsuit, plaintiff claimed the reason cited for his […]

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Employer Sued for Relying on Non-Criminal Information Disclosed by Criminal Background Database

Posted by Jeffrey Davis on

As previously reported, California recently enacted new prohibitions affecting employers conducting pre-hiring background investigations. Prior to January 1, 2014, Labor Code section 432.7 only prohibited employers from considering, or asking applicants about, information concerning: (1) arrests or detentions not leading to conviction; or (2) referral to, or participation in, a pretrial or post-trial diversion program. […]

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New requirement to keep Responsible Party Information Current with the IRS

Posted by Ronald Henderson on

Every time a new entity has been formed or an individual has started his or her initial trade or business since January 2010, and an Employer Identification Number (“EIN”) has been secured from the IRS for such entity or individual, the Form SS-4, Application for Employer Identification Number (EIN), has required the designation of a […]

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