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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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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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 […]

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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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May employee sue for whistleblower retaliation under the federal False Claims Act in state court, and have that right decided in a petition for extraordinary relief?

Posted by Steven Vartabedian on

In Driscoll v. Superior Court (filed 1/30/14) 2014 DJDAR 11270, the Court of Appeal, Fifth Appellate District, answered yes on both counts, issuing a writ of mandate instructing the state trial court to overrule the demurrer it had previously sustained without leave to amend. Driscoll had been employed as a medical doctor with real party […]

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May trial court order temporary removal of attorney’s website postings which could prejudice jurors?

Posted by Steven Vartabedian on

Easy access to social media and the Internet provide great learning and informational tools. But with these benefits have come abuses and challenges for many of society’s institutions, educational and judicial to name two. For educators, the challenge involves patrolling some students’ trying to cheat their way through their education. For judges, it is a […]

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Is it improper for a trial court to consider insurer’s potential liability for judgment in excess of policy limits in evaluating whether 998 demand was reasonable?

Posted by Steven Vartabedian on

In Aguilar v. Gostischef (filed October 11, 2013) 2013 DJDAR 13678, judgment for $2.3 million was entered in favor of plaintiff for motor vehicle accident personal injury, where defendant was insured by Farmers under a $100,000 policy limit. Earlier in the case, plaintiff’s counsel had twice requested discovery from Farmers of the policy limit. After […]

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Under what circumstances will a non-settling medical malpractice defendant found liable at trial pay only a token amount to plaintiff as a result of other defendants’ pretrial settlement?

Posted by Steven Vartabedian on

The case of Rashidi v. Moser (filed 9/23/13) 2013 DJDAR 12903 provides such circumstances. And the circumstances are not terribly unusual. What causes a virtual victory here for to a losing defendant is the confluence of the following statutes: California Civil Code section 3333.3 (MICRA), section 1431 (Prop 51), and Code of Civil Procedure section […]

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Does employee’s statutory right to indemnity for attorney fees in defending action obligate employer to pay for attorney who duplicates work of employer-provided attorney?

Posted by Steven Vartabedian on

Labor Code section 2802, subdivision (a), requires an employer to indemnify its employee for “necessary” expenditures or losses incurred as a direct consequence of the employee carrying out his employment duties. In Carter v. Entercom Sacramento, LLC (filed 9/3/13) 2013 DJDAR 11886, Carter, as an employee of defendant’s radio station, helped conduct an ill-conceived water-drinking […]

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May law firm that represented now-deceased spouses in preparing their wills and trusts represent trustees against wife’s personal representative?

Posted by Steven Vartabedian on

Rulings on motions to disqualify opposing counsel have in recent months and years regularly found their way into the appellate courts. Some of these reviews have been by way of appeal as appealable injunctive orders. Others have taken the petition for writ of mandate route. The latter route was taken in Fiduciary Trust International of […]

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