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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Is there a triable issue of fact concerning company lawyer as a cause of termination of employee when company lawyer co-represents employer and employee?

Posted by Steven Vartabedian on

In Yanez v. Plummer (filed & published 11/5/13) C070726, Plaintiff Yanez sued his former employer, Union Pacific, for wrongful discharge and its in-house counsel, Plummer for legal malpractice, breach of fiduciary duty and fraud. Yanez had witnessed the injury of a co-worker who filed a personal injury lawsuit under the Federal Employers Liability Act (FELA) […]

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Manufacturer of grinder has no liability for nor duty to warn of grinder’s use with blade expressly excluded from intended use of grinder.

Posted by Steven Vartabedian on

In Sanchez v. Hitachi Koki, Co., Ltd. (filed 7/9/13) 2013 DJDAR 8970, plaintiff sued the manufacturer of a grinder for personal injuries resulting from plaintiff’s use of a saw blade manufactured by a third party. The grinder’s safety manual and instructions expressly warned that saw blades should not be used with the grinder. Plaintiff was […]

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Does laches bar beneficiary’s action filed after settlor’s death contesting capacity to amend trust when issue known long before death?

Posted by Steven Vartabedian on

In Drake v. Pinkham (published 6/21/13) 2013 DJDAR 8028, appellant and respondent were the surviving daughters of mother, the settlor of a revocable trust. Their father and mother had a living trust that provided upon one’s death there would be a split into a survivor’s trust to support the survivor, and a family trust that […]

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Can product-design-defect strict liability apply to implanted medical devices? When can expert declaration be excluded on MSJ?

Posted by Steven Vartabedian on

The above two questions are presented in Garrett v. Howmedica Osteonics Corp. (filed 3/6/2013) B238304. Plaintiff Garrett was treated for cancer in his left femur by an orthopedic surgeon who implanted a prosthetic device, designed and manufactured by defendants, the surgeon had selected to replace the middle portion of the femur. When plaintiff complained about […]

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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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“Shall” is not always mandatory language; LA County not required to capture pit bulls because whether “hazard” is discretionary decision under immunity statute

Posted by Steven Vartabedian on

California Government Code section 815.6 exempts a public entity from immunity if it has failed to discharge a statutory “mandatory duty” designed to protect from injury. Los Angeles County Code (LACC section 10.12.090C states that the county animal care and control department “shall capture and take into custody . . . [a]ny animal being kept […]

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Triable issues of lender fraud requires reversal of summary adjudication of claims for damages caused by foreclosure

Posted by Steven Vartabedian on

The general history of the instant foreclosure is all too familiar. Home loan borrower starts with a low adjustable rate loan based on now-bygone high home values. The interest adjusts in a few years to more than twice the original rate, more than doubling the homeowners’ payment on a home that now is substantially “underwater” […]

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Neurologist’s DMV seizure evaluation of patient privileged in barring patient-caused accident claim of injured party

Posted by Steven Vartabedian on

Plaintiff Cang Wang suffered critical injuries when struck by the vehicle driven by Amr Sarieh, who had lost consciousness at the wheel as a result of an epileptic seizure. Sarieh recently had his driving privileges restored based on an evaluation filed with the DMV by his treating neurologist defendant Christianne Heck, M.D., clearing him to […]

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Hotel bathtub slip-and-fall: previous accidents must be sufficiently similar to give innkeeper notice of dangerous product/condition

Posted by Steven Vartabedian on

In Howard v. Omni Hotels Management Corp. (filed January 11, 2012, certified for publication February 8, 2012) 2012 DJDAR 1786, plaintiff injured himself as a result of a slip and fall in the bathtub while staying at one of defendant Omni’s rooms in San Diego. He sued Omni for premises liability and negligence; he also […]

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