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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May a trial court award defendant expert witness fees under CCP section 998 after plaintiff declined offer and then dismissed action?

Posted by Steven Vartabedian on

California Code of Civil Procedure section 998, subdivision (c) (1) states, “If an offer made by a defendant is not accepted, and the plaintiff fails to obtain a more favorable judgment or award . . . the court or arbitrator . . . in its discretion, may require the plaintiff to pay a reasonable sum […]

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Where law firm represents a company and a member against another member of the company giving rise to hypothetical conflict of interest, but no actual conflict or reasonable likelihood exists, must law firm be disqualified?

Posted by Steven Vartabedian on

I am becoming more and more convinced that trial courts should be more restrained in disqualifying law firms based on mere appearances of potential conflicts of interest. That certainly seems to be the message in a trend of appellate cases. And I may have been a participant in this trend, when I authored the opinion […]

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Is plaintiff’s initial statutory offer to settle extinguished regarding expert costs incurred after that offer yet before a second one, where judgment met or beat either offer?

Posted by Steven Vartabedian on

In Martinez v. Brownco Construction Company, Inc. (published opinion file June 10, 2013) S200944, Gloria Martinez offered to compromise her loss of consortium claim concerning serious injuries suffered by her husband, co-plaintiff Raymond, via two settlement offers pursuant to California Code of Civil Procedure section 998. In August 2007, she offered by way of a […]

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When may an attorney represent in a new action a party adverse to former client he represented in previous actions?

Posted by Steven Vartabedian on

The short answer is the attorney may represent the new client against his old client when the new case does not involve matters substantially related to the prior representations. A “substantial relationship” exists where ” the attorney had a direct professional relationship with the former client in which the attorney provided legal advice and services […]

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When should a “negligence per se” jury instruction be given and what is the impact of the giving or not giving?

Posted by Steven Vartabedian on

There is a popular notion that if a party has violated a statute, legal liability necessarily flows from that violation. Not always so. Spriesterbach v. Holland (filed 4/9/13) 2013 DJDAR 4567 discusses some of important nuances concerning this subject. Plaintiff rode his bicycle on a sidewalk in the direction opposite the direction of vehicular traffic […]

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Does a third party’s criminal conduct of throwing concrete down onto a freeway relieve truck manufacturer’s duty to design windshield to protect against such flying objects?

Posted by Steven Vartabedian on

In Collins v. Navistar, Inc. (filed March 29, 2013) 2013 DJDAR 4169, a juvenile was throwing chunks of concrete from a freeway overpass onto the freeway, hitting a number of vehicles. One such vehicle was that of plaintiff’s deceased spouse, William Collins; a two and a half pound chunk penetrated the windshield and hit William […]

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When is a rejected joint offer to settle enforceable to award expert witness fees (CCP sect. 998)?

Posted by Steven Vartabedian on

In McDaniel v. Asuncion (filed March 27, 2013) 2013 DJDAR 4038, the plaintiffs, wife and daughter of decedent who lost his life in an automobile accident, sued numerous defendants for wrongful death. Before trial, defendant Asuncion served a joint offer to the two plaintiffs to settle against this defendant alone in the amount of $100,000, […]

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When does theft by false pretenses constitute violation of receiving stolen property statute causing civil award of treble damages and attorney fees?

Posted by Steven Vartabedian on

The short answer appears to be anytime a plaintiff pleads and proves such a theft under California Penal Code section 496 (a) and (c). Under section 496 (c), receiving or buying property obtained by theft is not only a criminal offense, but is also civilly punishable by allowing a person injured by a violation of […]

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