After years of ambiguity and debate, the California Supreme Court has now clearly recognized the Replacement Parts Doctrine in a unanimous decision that reversed a Court of Appeal opinion that would have allowed manufacturers to be held liable for injuries caused by products that they did not manufacture, sell, or distribute.
MPP Partnership Development Leader George Brandon reviews the iPad2 to see if it could be a contender to replace the laptop.Published in the Los Angeles Daily Journal.
Whether an order or judgment is appealable is not always obvious on its face. In a decision that only an appellate geek could love, the 4th District Court of Appeal recently held that for a dismissal order to be appealable it must be written and signed by the judge. This court also joined a chorus of other appellate courts, in holding that an order denying a reconsideration motion is not separately appealable. Sexy ruling, right? Maybe not, but a very important one for trial and appellate practitioners alike who want to make sure their appeals can lift off the ground.
Published in the October 2011 edition of LAAHRP (Los Angeles Advertising Human Resources Professionals) Magazine.
On Sept. 21, the 9th U.S. Circuit Court of Appeals issued its decision in Lopez v. Pacific Maritime Association, 2011 DJDAR 14348 (9th Cir. Sept. 21, 2011), finding that the Americans with Disabilities Act and the Fair Employment Housing Act do not protect people who are using illegal drugs when they apply for a job. Companies may lawfully exclude job applicants who were using illegal drugs when they apply for a job, and a disparate impact claim will fail absent any evidence that the practice of permanently disqualifying applicants with drug use excluded recovering or recovered drug addicts disproportionately.
Just when you thought it was safe to make comments out of earshot of a potential plaintiff, a California Court of Appeal in the case of Pantoja v. Anton reversed a judgment in favor of the employer and ordered a new trial because the trial court should have admitted "me too" evidence of alleged racial and gender bias.
This summer, the Supreme Court of California announced that non-resident employees may sue their California-based employer for overtime pay under California Labor Code sections 510 and 1194 based on work they performed in California, even if that work was only on a temporary or short-term basis. The Court suggested, without holding, that the same overtime requirements may apply to non-California employers who send non-resident employees to California on temporary or short-term work assignments.
A recent case, Securitas v. Superior Court (2011) 197 Cal.App.4th 115, is helpful in clarifying what constitutes – and does not constitute – a split shift for purposes of Industrial Welfare Commission Wage Order No. 4. Wage Order No. 4 entitles employees to a potential additional hour of pay at the minimum wage for any workday they work a split shift. The Wage Order defines "split shift" as "a work schedule, which is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal periods."
Since the first Facebook-related employment case in November 2010, there have been in excess of 150 new NLRB complaints. In an effort to clarify NLRB's position in this type of case, NLRB's Office of General Counsel has released further guidance for Employers and Employees.
The California Supreme Court recently limited defendants' liability for "medical special" damages, which ultimately will reduce the amount a plaintiff can recover in personal injury construction-related claims. In Howell v. Hamilton Meats & Provisions, Inc., the California Supreme Court held "that an injured plaintiff whose medical expenses are paid through private insurance may recover as economic damages no more than the amounts paid by the plaintiff or his or her insurer for the medical services received or still owing at the time of trial." The Court rejected plaintiff arguments that defendants are liable for the full "billed" amount, regardless of any discount the insurer may negotiate. "We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount." The Court's ruling prevents plaintiffs from recovering in damages more than the actual harm incurred.
A long-awaited California Supreme Court decision finally resolves the disagreement among California appellate courts with respect to the amount of damages a plaintiff may present to a jury for medical expenses that were reduced by a private health insurer. In Howell v. Hamilton Meats & Provisions, Inc., the state’s highest court accepted the defendant’s argument by a vote of 6-1, deciding that a plaintiff is only entitled to recover damages for medical bills actually paid for by the health insurer. Thus, an insurer’s "write-off’s" are not subject to the collateral source rule.
The future use of Public Private Partnerships (P3) in California took a positive step forward with the recent California Court of Appeal decision in Professional Engineers in California Government v. Department of Transportation (Super Ct. No. RG10544672). The Professional Engineers in California Government (“PECG”) challenged Caltrans implementation of a P3 project in San Francisco known as the Presidio Parkway Project. PECG claimed that Caltrans violated the Streets and Highway Code section 143 by permitting third party engineers to perform the engineering services for the project in lieu of Caltrans’ employees. In addition, PECG claimed that P3 projects in California must be funded through the use of tolls or user fees as the funding element for a P3 project. The California 1st District Court of Appeal rejected both of these arguments, and in so doing, cleared the way for further use of P3 projects in California. The decision, to the extent California Supreme Court review is not sought, should facilitate the further use of P3 projects in California and may assist public entities such as Caltrans to explore the possibility of securing funding for a project utilizing the P3 model.
Published as a chapter in Inside the Minds: Complying with Employment Regulations, 2011 Edition.
MPP Partnership Development Leader George Brandon reviews the iPhone 4 to see whether it could be a contender for attorneys to use as a replacement for the Blackberry. This article provides eight key lessons that changed how he uses the device.Published in the Los Angeles Daily Journal.
On June 30, 2011, in Sullivan v. Oracle Corporation, the U.S. Court of Appeals for the Ninth Circuit ruled on the issue of whether California law applies to non-residents employees who work both in California and in other states involving a California-based employer.Published in LAAHRP (Los Angeles Advertising Human Resources Professionals) Magazine.
In Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, the First District splits with the Second District’s ruling in Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547 concerning what qualifies as sexual harassment in the context of same-sex harassment suits. This split will likely require the California Supreme Court to intervene on the issue so employers can have clarity.
On June 8, 2011, in MacIntosh v. Powered, Inc., the Court of Appeal of California, First District, Division Five, reversed the trial court’s denial of Powered, Inc.’s motion to compel arbitration, forcing the plaintiff, John MacIntosh, a California-based employee of Powered, Inc., to arbitrate his claims in Texas.
When faced with submission of an inadequate certification for FMLA leave, what options does an employer have? In Lewis v. United States of America, the Ninth Circuit Court of Appeals provides guidance for employers faced with just such a situation.
On June 27, 2011, the U.S. Supreme Court issued two decisions limiting the exposure of foreign businesses to the risk of litigation in U.S. courts. In both cases, the Supreme Court held that the foreign corporations were not subject to products liability lawsuits in U.S. state courts, since those courts lacked personal jurisdiction over the foreign companies. The first case, J. McIntyre Machinery, Ltd. v. Nicastro, involved a British industrial machinery manufacturer who used an independent U.S. distributor to sell and deliver its products into the U.S., but did not itself maintain facilities or operations in the U.S. The second case, Goodyear Dunlop Tires Operations, S.A. v. Brown, involved three foreign subsidiaries of an American company (Goodyear Dunlop) who exported only a small amount of tires into the U.S. In both cases, the Supreme Court confirmed that a foreign business, with no presence in the forum state, will not be subject to personal jurisdiction simply for having sent products into the "stream of commerce" with the knowledge that its activities may be used or have an impact on the residents of a particular state.
On June 23, 2011, in a 5 to 4 decision, the U.S. Supreme Court in Pliva, Inc. v. Mensing, ---S.Ct. ----, handed a significant victory to generic drug manufacturers by ruling that federal law preempts state-law tort claims alleging inadequate warning labels on generic drugs. The decision narrows the reach of a 2009 opinion in Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 173 L.Ed.2d 51, that had permitted state tort actions for alleged inadequate warnings to survive as to brand-name drug manufacturers.
Today, in a major victory for employers, the United States Supreme Court threw out the largest class action employment discrimination case in the nation's history. The suit, against Wal-Mart Stores, had sought to consolidate the claims of as many as 1.5 million women on the theory that the company had sexually discriminated against them in pay and promotion decisions.
On March 22, 2011, the United States Supreme Court in Matrixx Initiatives, Inc. v. Siracusan decided that statistical significance is not a threshold pleading requirement in securities fraud claims based solely on the failure to disclose adverse information regarding a product.Published in the Spring 2011 issue of the ABA Business Litigation Committee Newsletter.
Does the claim that defendants stole the idea or concept you pitched only sound in copyright law or can you also proceed on an implied contract claim? In a very recent en banc decision, the 9th U.S. Circuit Court of Appeals resoundingly held that you can pursue both avenues. The opinion reversed a 2010 panel decision that has created some circuit conflict, and clears up any confusion about where the 9th Circuit stands on copyright preemption of idea-theft claims.
In Mora v. Big Lots Stores, Inc., No. B221949 (Second District, filed April 18, 2011), for the second time in two years, the Second Appellate District upheld a trial court’s denial of class certification based on specific, individual issues predominating over common questions of fact or law (Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723 was a prior case upholding a similar trial court ruling for similar reasons).
Question: does a bad economy affect the number of employment claims? Answer: Yes.Wage and hour lawsuits under the Fair Labor Standards Act jumped to record levels last year. Workers filed nearly 6,800 suits, some 700 cases more than the year before. Most of these were filed as collective or class actions, even though the number of non-employment class actions remained stable.
On April 13, 2011, the Fourth Appellate District in Wills v. Superior Court of Orange County, ruled in favor of the employer, defendant Superior Court of the State of California, County of Orange, in affirmed summary judgment in a disability discrimination claim by plaintiff Linda Wills. In so doing, the Appellate Court ruled that an employer may discipline an employee for engaging in threats or violence against coworkers, even when that behavior is caused by the employee’s disability.
In 2008, Congress passed, with almost unanimous support, the Genetic Information Nondiscrimination Act ("GINA"). GINA’s stated purpose is to encourage workers to get tested for genetic medical conditions, without having to worry about fallout at work. While certainly a worthy goal, the new law is a complicated one, presenting both a potential minefield for employers, as well as opportunities for plaintiffs’ lawyers and disgruntled employees.
On April 27, 2011, the Supreme Court in AT&T Mobility LLC v. Concepcion, ____ U.S. _______, held that the Federal Arbitration Act ("FAA") "prohibits states from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures." The Supreme Court’s decision overturns prior California decisions regarding classwide arbitration and, once again, makes arbitration a viable alternative for employers.
The Court of Appeal for the Second District of California, in a decision published on March 30, 2011, affirmed summary judgment in favor of an insurer (General Security Indemnity Company) against another insurer (Clarendon America Insurance Company) and held that there was no coverage under the products - completed operations hazard of a general liability policy for a general contractor terminated before the completion of his contract, where: (a) the contractor performed no work during the policy period; (b) the contractor did not complete or abandon the work contracted for; (c) where the “faulty workmanship” exclusion applied; and (d) where the “claims in progress” exclusion applied.
The OIG has issued a report on facilities’ employment of individuals with criminal convictions, which contains some troubling numbers that underscore a facility’s need to be vigilant about conducting thorough, periodic background checks for all staff members.
The United States Supreme Court in Kasten v. Saint-Gobain Performance Plastics Corp. (March 22, 2011) --- U.S. ---, has resolved the issue of whether oral complaints are protected under the Fair Labor Standards Act (“FLSA”).
This article discusses what it is like being a woman who started in litigation some 30-years ago. The changes in attitude toward women are astounding. Not that all the problems have completely gone away, for they have not. But the situation is better and it is a constant subject in the forefront of what is now openly discussed.
Recently, the California Court of Appeal has upheld the denial of class certification for employees because individual issues – not common issues – among those employees would determine the outcome of the lawsuit. In Tien v. Tenet Healthcare Corporation, the Court of Appeal has affirmed the denial of class certification based on the analysis previously put forth by Brinker Restaurant Corporation v. Superior Court and Brinkley v. Public Storage, Inc.
The United States Supreme Court has dealt employers another hurdle to overcome when making employment decisions. On March 1, 2011, the Supreme Court in Staub v. Proctor Hospital, 131 S.Ct. 1186, held that employers may be held liable for the discriminatory motives of supervisors who influence but do not make the ultimate employment decision.
Recently, the California Court of Appeal issued a decision that plaintiffs will welcome, and of which employers should be aware. In United Parcel Service, Inc. v. Superior Court, the Court of Appeal held that Labor Code § 226.7 provides for two hours of premium pay per day when an employee misses both a meal and a rest period.
For attorneys, particularly sole practitioners, advance estate planning should include a plan for the disposition of your law practice in the event of your sudden death. While advance planning cannot save your loved ones from their grief over losing you, it can remove a source of tension from your stricken family and lessen the risk of potential liability to your estate.Published in Riding the E&O Line, the newsletter of the DRI Professional Liability Committee.
One question that employers like to ask is what type of investigation they can do regarding a potential employee. Generally, employers can conduct whatever investigation the potential employee authorizes them to conduct. However, employers still need to be careful when using background checks that reveal a potential employees' credit history or criminal background. Two recent class actions alleging that employers' use of background checks violated the Civil Rights Act highlight the importance of creating policies to ensure that background checks are not used in a discriminatory manner.This article was published in the Los Angeles Daily Journal on Wednesday, March 9, 2011.
On Feb. 24, in Sonic-Calabasas A, Inc. v Frank Moreno, the state Supreme Court declared that mandatory employment arbitration agreement provisions, which waive an employee's right to a 'Berman' hearing, are contrary to public policy and unconscionable.This case summary was published in the Los Angeles Daily Journal on Tuesday, March 1, 2011.
The best time to plan for eternity is today. Planning for your sudden death should include a plan for the disposition of your law practice. While advance planning cannot save loved ones from their grief over their loss, it can remove a source of tension from your stricken family and lessen the risk of potential liability to your estate.Published in County Bar Update, an e-publication of the Los Angeles County Bar Association.
Today in Sonic-Calabasas A, Inc. v. Frank Moreno, the California Supreme Court declared that mandatory employment arbitration agreement provisions that waive an employee’s right to a “Berman” hearing are contrary to public policy and unconscionable. Additionally, the Court further stated that such a ruling is not preempted by the Federal Arbitration Act.
On Feb. 17, in Century National Insurance Co. v. Garcia, the state Supreme Court declared the intentional loss and the dishonesty, fraud, or criminal conduct exclusions in a homeowner's policy to be invalid as to 'innocent co-insureds.'This case summary was published by the Los Angeles Daily Journal on Tuesday, February 22, 2011.
Today, in Century-National Insurance Company v. Garcia, a unanimous California Supreme Court declared two policy provisions that excluded coverage for property loss intentionally caused by “any” insured to be invalid as to other, innocent co-insureds. The homeowner’s policy exclusions, as worded, precluded coverage as to all insureds for loss caused by the intentional act or criminal conduct of “any insured.” At issue was whether the Garcias’ claim should be denied because of the intentional act [i.e. arson] of their resident, adult son [i.e. an insured by definition].
This article examines employer ability to regulate employee conduct during non-working hours. It was published in the Los Angeles Daily Journal on Monday, January 31, 2011.
A new decision from the California Court of Appeal found that emails sent between an employee and her attorney were not confidential because the emails were sent from a company computer and the employee was informed, through an employee handbook, that emails were not private and could be monitored.
What should Human Resources Professionals know about monitoring and regulating employee conduct in this new age of social media websites?
Published in LAAHRP (Los Angeles Advertising Human Resources Professionals) Magazine.
With the arrival of the holiday season, employers are faced with the annual events associated with holiday cheer. It is extremely important for employers to remember that the holiday season also brings many unfortunate opportunities for employer liability.
With certain amendments to the Medicare Secondary Payer Statute (MSP) going into effect on October 1, 2010, settlements involving Medicare beneficiaries will be more difficult to navigate.
Published in the November 2010 issue of Communiqué, the official publication of the Clark County Bar Association.
This article focuses on the issues facing lawyers given the present business climate and recent recession. What are the effects of this recession on law firms and lawyers? What generally are the major issues facing the legal practice in this new business climate?
Published in the Los Angeles Daily Journal on November 1, 2010.
Departing governor, Arnold Schwarzenegger, signed and vetoed several pieces of employment legislation at the close of the September 30, 2010 deadline. The new laws, which will go into effect on January 1, 2011, are not as far reaching as in years past, but employers still need to be aware of and familiar with them.
On September 29, 2010, California Governor Arnold Schwarzenegger signed into law Senate Bill 972. This new law will curtail the rulings in Crawford v. Weather Shield and UDC-Universal Development, L.P. v. CH2M Hill, in which the California Supreme Court and California Court of Appeal held that a duty to defend and indemnify arises as soon as the indemnitee tenders its defense to the indemnitor.
Published in the September 2010 issue of Law Practice TODAY, the monthly webzine of the ABA Law Practice Management Section.
Published in the September 2010 issue of Relevance, AIA California Council e-newsletter.
The California Legislature has recently amended the mechanic’s lien law. These new provisions modify the procedure to maintain a valid mechanic's lien. The failure to comply with these new provisions will result in the lien being declared invalid.
Commencing on January 1, 2011, a claimant will be required to serve a “Notice of Mechanic’s Lien” on the owner of the property prior to filing a mechanic’s lien. The mechanic’s lien itself must contain a proof of service attesting that the “Notice of Mechanic’s Lien” was served by registered mail prior to the recording of the lien. Finally, the claimant must record a “Notice of Lis Pendens” within twenty (20) days of the filing of a complaint seeking to enforce the mechanic’s lien.
Published in ABA Entertainment and Sports Lawyer, Vol. 28 No. 1, Spring 2010.
Published in the ABA TIPS Admiralty and Maritime Law Committee Special Edition Newsletter, August 2010.
Published in the July/August 2010 issue of the Construction Management Association of America (CMAA) CM Advisor.
Published in the Construction Management Association of America (CMAA) Southern California Chapter's Summer 2010 Newsletter.
Recent appellate decisions indicate that it may be desirable to include an express contractual provision regarding the choice of law that governs any arbitration issues. Contracts often provide for arbitration of disputes. However, those contracts may not specify whether they are governed by the Federal Arbitration Act or state law.
MPP attorney Pamela A. Palmer is co-author of this article published in the Winter 2010 issue (45:2) of the American Bar Association's Tort Trial & Insurance Practice Law Journal.
We had previously advised you about a case in which the California Court of Appeal held that a design professional owed an obligation to pay for the defense of its developer client pursuant to a contract of indemnity, even though the plaintiff had not alleged that the design professional had erred, and even though the jury eventually found that the design professional was not negligent in performing its services.
The design professional in that case sought review from the California Supreme Court or, in the alternative, an order depublishing the Court of Appeal's opinion. The Supreme Court recently denied the design professional's petition, which means that the UDC case remains the law in California.
Published in the March/April 2010 issue of the Construction Management Association of America's CMAdvisor.
Published in the April 2010 issue of Communiqué, the official publication of the Clark County Bar Association.
In light of the current economic environment, the risk of exposure to liability in the employment practices context is greater than ever. This article discusses the development of Employment Practices Liability Insurance (EPLI) and common issues that arise in the EPLI context.
On January 15, 2010, the California Court of Appeal held that a design professional owed a duty to defend its developer/client pursuant to a contract of indemnity even though the jury found that the design professional had not been negligent in performing its services. In UDC-Universal Development, L.P. v. CH2M Hill, a residential condominium homeowners association sued UDC, the developer of the project, and UDC cross-complained against its design professional, CH2M Hill, seeking to enforce indemnity provisions in their contracts. Five days before the end of the trial on UDC's indemnity claim, the Supreme Court issued its decision in Crawford v. Weather Shield, which held that a contractual indemnitor incurs a duty to defend the indemnitee as soon as the indemnitee tenders its defense to a claim asserting that the indemnitee was at fault. At the conclusion of the trial, the jury returned a verdict finding CH2M Hill was not negligent and that it did not breach its contract with UDC. Regardless, the trial court found that, under Crawford, the indemnity provision in the contract obligated CH2M Hill to pay UDC’s defense costs.
Construction contracts between general contractors and subcontractors are often modified by change orders related to scope of work revisions during construction. If litigation ensues, the subcontractor may claim that the general contractor violated California’s various prompt-payment statutes. The California Court of Appeal recently provided some new insight in this area. In Martin Brothers Construction v. Thompson Pacific Construction, the Court of Appeal held that a general contractor who had a good faith dispute with a subcontractor could withhold 150 percent of the amount due without violating the prompt-payment statute requirements of California's Public Contract Code. The Court also ruled that parties to a construction contract could contractually "opt out" of the timing requirements for progress payments contained in California's Business and Professions Code.
After four years and extensive briefing, the United States Court of Appeals for the Second Circuit finally issued its watershed opinion concerning the judiciary’s role in considering climate change issues. The Court emphatically reversed the district court, vacated the judgment and remanded the matter for additional proceedings. Is so doing, the Court of Appeals further cracked the door for potential judicial solutions to global climate change.
LACBA County Bar Update, November 2009, Vol. 29 No. 10
Click HERE to view article.
On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar on the subject of Climate Change Litigation in the U.S.: Theories of Liability and Insurance Issues. The level of interest expressed about that subject at that time combined with ongoing developments relating to climate change litigation suggested the desirability of periodically updating that presentation. This third update complements the initial presentation along with our June and December 2008 updates.
This article presents an overview of the potential areas of legal liability involving the sales force, and a framework for training sales representatives on legal issues, both to prevent lawsuits and to aid the company in successfully defending itself and its products in pending litigation.
Background information about the case and the Economic Loss Doctrine, as well as a discussion of the decision and its effects.
On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar on the subject of Climate Change Litigation in the U.S.: Theories of Liability and Insurance Issues. The level of interest expressed about that subject at the time combined with ongoing developments relating to climate change litigation suggested the desirability of periodically updating that presentation. This is another in that ongoing series of updates.
Article written for the College of Law Practice Management journal following the presentation given by George Brandon on Social Networking at the COLPM 2008 Annual Conference in Chicago.
Published in the September 2008 issue of Construction Executive.
On April 30, 2008, Morris Polich & Purdy LLP presented a paper and seminar at the Old Library, Lloyds Building in London on the subject of Climate Change Litigation in the U.S.: Theories of Liability and Insurance Issues. The level of interest about this subject, as reflected by the attendance at the seminar, the number of inquiries following the seminar and the response of other insurers with whom we have shared our paper, combined with the rapid pace of new developments relating to climate change litigation in the short period since that seminar was presented, suggests the desirability of periodically updating that presentation. The purpose of this brief update is to do just that.
Article for American Health Lawyers Association Publication, June 2008
Technical problems can cause difficulty when attempting to comply with ethical rules regarding retainer of client files.
LACBA County Bar Update, June/July 2008, Vol. 28 No. 6
Simpson Strong-Tie Co., Inc. v. Gore
LPL eAdvisory, May 2008
Article written for MPP's London seminar, Climate Change Litigation in the U.S.: Theories of Liability and Insurance Issues.
Iowa Supreme Court Attorney Disciplinary Board v. Winthroub
LPL eAdvisory, March 2008
Rico v. Mitsubishi Motors Corp.
LPL eAdvisory, December 2007
Beal Bank, SSB v. Arter & Hadden, LLP
LPL eAdvisory, October 2007
Appeared in the publication "Rx for the Defense" - the newsletter for the DRI.
What is metadata? Although the document on your computer screen looks like a two-dimensional piece of paper, it is really akin to a three-dimensional folder. The current version on the screen is the top document in the folder. But behind the screen is the rest of the folder, including all the draft versions, and it is stored on your computer. So, you did not just e-mail one document; you e-mailed an entire folder. You provided your opponent with a great deal of information: prior versions, edits, the identity of authors and editors, dates of alterations, the time expended on editing and the electronic notes that your client attached. See, e.g., Hricik and Jueneman, “The Transmission and Receipt of Invisible Confidential Information, 15 No. 1 Prof. Law 18 (2004).