Civil Action with Brian & Shant (civilaction)

Zehia v Sup Court of San Diego County (4th DCA)

Personal Jurisdiction in the Electronic Defamation Action

Torres v Design Group Facility Solutions (2nd DCA)

Renewed Motion for Summary Judgment Disguised as a Motion for Reconsideration

Grande v Eisenhower Medical Center and Flexcare (4th DCA) 

Scope of Release Under the Dual Employer Theory

Dumas v LA County Board of Supervisors (2nd DCA)

Meet and Confer Requirement for Demurrers

Brian and Shant discuss trends in enforcing arbitration clauses, blowing deadlines to challenge a judge, importance of an expert declaration when opposing a MSJ, federal preemption in false advertising claims against drug manufacturers, and construction defect class actions.

Goonewardene v. ADP, LLC (2019) 6 Ca.5th 817: Employer can enforce an arbitration agreement between an employee and a staffing agency.

Sunrise Financial v. Superior Court (2019) 32 Cal.App.5th 144: Section 170.6 challenge was untimely because defendants filed the challenge more than 15 days after they made an appearance in the action by filing an opposition to the section 403 transfer/consolidation motion in Judge Wohlfeil's department.

Fernandez v. Alexander (2019) 31 Cal.App.5th 770:. Court of Appeal found the declaration by a patient's expert did not opine on issue of whether recommendation of cast rather than surgery caused increase to patient's wrist injury, and thus did not create genuine issue of fact as to causation.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant discuss case certification for purposes of a nationwide class settlement, a California Court of Appeal for the 4th District's duty to defend an additional insured in an insurance case, A 9th circuit case decertification & standing, and strict requirements for it, a UCL claim in an employment case, and civility & the law, and motions to get relief from default.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant discuss business interruption insurance with Michael Childress, Of Counsel at Kabateck LLP. 

With all the closures, businesses large and small are taking the inordinate hit for the rest of society to reduce the impact of the COVID-19 virus.  We primarily look at property insurance policies.  This is where we find coverage for damage to dwellings, buildings, and business income losses.  Also termed lost profits or business interruption coverage.  Business interruption is an additional coverage available in almost every commercial property insurance policy.  As a result, there is little doubt whether business interruption coverage will come to bear in almost every situation.

Brian and Shant discuss Facebook and the Telephone Consumer Protection Act, relief under 473 (relief for a default) aka lawyers getting petty, professional negligence & CPA's screwing up with taxes and the statutes of limitation that governs that, a rule that clarifies Rule 4-2 which involves contacting represented parties (who counts and who does not), and a Supreme Court case called Manhattan Community Access Corp., which involves the 1st amendment. 

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant discuss a FEHA cases and new trial motions and standards for reviewing those, attorney's fees in Lemon Law cases, a cautionary tale and reminder about edicare/Medi-Cal leans in personal injury cases, an attorney fee case risen out of civil rights action, RFA's and actually using them (the costs of proving truth of something that was denied in RFA), and the burden of proof for establishing and/or reducing future damage awards to present cash value. 

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant speak with partner Stephanie Charlin on figuring out the policy limits of a party responsible for an injury. 

Currently, the law dictates that insurance companies are not required to release policy information until a case is filed and the information is requested during discovery. This is often a waste of time for plaintiff lawyers, the courts, and the victims, particularly if the policy has minimal coverage. 

They also discuss how to make sure you check to see if a defendant has additional policy coverage, aside from their primary insurance. 

If you have any questions about insurance or how it may impact your catastrophic injury cases, please reach out to us: 

Brian Kabatek: bsk@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about Kabateck LLP, visit www.kbklawyers.com

Brian and Shant discuss a slew of bad plaintiff cases today, including a California Supreme Court opinion that arose out of the breach of a confidentiality clause and settlement agreement (AKA the worst case scenario for plaintiff lawyers), J&J talcum case, a personal injury case and how to perfect your appeal, a rogue juror, an abuse case with no recourse, and an insurance case and how to interpret insurance contracts.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Summary: Brian and Shant discuss a number of cases that set generally good precedent for plaintiffs. They cover cases about FEHA claims arising out of the conduct of an coworker, challenges in a premises liability case involving criminal conduct, successfully arguing a defendant waived right to arbitrate, and forum selection clauses that violate public policy.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com

------ 

Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549 and Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568: 

• Genuine issue of material fact as to whether employee was constructively discharged by alleged demeaning criticisms by supervisor precluded summary judgment as to discrimination cause of action;
• Genuine issue of material fact as to whether supervisor's alleged conduct was motivated by discriminatory animus based on employee's national origin and age precluded summary judgment on employee's harassment cause of action;

Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654: 

• Owner's general knowledge of possibility of violent criminal conduct on premises was not in itself enough to create duty to provide protection from foreseeable third party crime;
• Prior occurrence of a burglary, a broken window next door to shopping center bar, and an assault for which the police requested security camera footage were insufficient to render third party criminal conduct sufficiently foreseeable, as would be required to impose duty on owner to protect musician from assault; and
• Owner's lack of precise system to track problematic occurrences on property did not breach owner's duty to exercise reasonable care to discover the occurrence or likely occurrence of criminal acts.

Newirth  v. Aegis Senior Communities, LLC (9th Cir. 2019) 931 F.3d 935

• Residents of senior living communities brought putative class action against operator of communities, alleging violations of California's Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL), and Welfare and Institutions Code. Following removal, the United States District Court for the Northern District of California denied operator's motion to compel arbitration. Operator appealed. The Court of Appeals held that operator waived its right to compel arbitration because (1) it knew of its right to arbitrate (2) it engaged in intentional acts inconsistent with that right, and (3) Plaintiff was prejudiced by having to litigate the case before Defendant filed the motion to compel. 

Gemini Technologies, Inc. v. Smith & Wesson Corp. (9th Cir. 2019) 931 F.3d 911

• Forum selection clause in unenforceable when it violates the public policy of a state in which the case is pending. 

Cole v. Hammond (2019) 37 Cal.App.5th 912

• Five year rule is jurisdictional. 
• Defendants' right to mandatory dismissal prevails over plaintiff's later asserted right to voluntarily dismiss.

Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954

• specific provision of Rental Car Agents Act, mandating that insurer file copy of policy issued to rental company with Department of Insurance, controlled over more general obligation of insurer to provide an insured with a policy which states the premium, and therefore insurer which issued coverage to rental car company was not required to make sure that policy stating premium was also provided to customers;
• rental company was not a general agent of insurer, and thus funds received by rental company as customer insurance payments could not be imputed to insurer as premium, in determining whether insurer charged and collected more than the statutorily-approved rate;
• rental company was not precluded from charging customers more for insurance than premium which rental company paid to insurer; and
• rental company's self-insured retention did not make company an insurer, as would subject company to rate approval requirements.

Brian and Shant discuss some good news (for a change) for consumers regarding class actions.

Cases include:

Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955: The California Supreme Court held that the ascertainability element of class certification does not require the ability to give notice to every single class member. 

Nguyen v. Nissan North America, Inc. (9th Cir. 2019) 932 F.3d 811: The 9th Circuit Court of Appeals held that the Plaintiff’s theory of liability—that Nissan’s manufacture and concealment of a defective clutch system injured class members at the time of sale—is consistent with his proposed recovery based on the benefit of the bargain. It doesn't matter 

Brian and Shant also discuss the "trivial defect" doctrine. 

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com

Brian and Shant discuss a Notice Prejudice case (one of the very important principles in Insurance Law, a Removal Case involving Federal Court, a Privacy Rights case versus Facebook that deals with standing & injury issues, a Driver Privacy Protection Act, an arbitration of UCL claim and how you can't arbitrate it, and finally a type of governmental immunity called Trail Immunity. 

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant discuss the California Supreme Court eliminating employees ability to seek unpaid wages under Labor Code section 558, an important decision regarding 128.7 sanctions, using statistical sampling to establish liability for purposes of class certification, liquidated damages in a settlement agreement, and attorney disqualification.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant discuss the possibility of using conversion as a means of recovering wages, some clarity regarding 998 offers, arbitrability of UCL claims, dangerous conditions of public property, the inability to arbitrate ERISA claims, and the rules regarding consenting to the jurisdiction of a magistrate judge.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant take an in depth look at the history, successes, and challenges faced in litigating insurance bad faith cases brought on behalf of descendants of victims of the Armenian Genocide.  Brian shares his experiences handling these cases and talks about the political ripple effects which reached the highest levels of public office. As Armenian-Americans, Brian and Shant discuss the significance of these cases and the legislative and judicial landscape surrounding genocide recognition efforts.  This episode was recorded just days before the United State House of Representatives passed House Resolution 296 on October 29, 2019. The long-delayed resolution recognizes the massacre of 1.5 million Armenians at the hands of Ottoman Turkey as an act of genocide, and condemns Turkey's efforts to deny recognition of the Genocide. 

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant discuss equitable tolling of class actions, piece rate work and meal breaks, trends in application of forum selection clauses, timeliness in seeking disqualification of lawyers, and attorney fees in settlement of PAGA actions.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant discuss the following:

OTO v. Kho: An arbitration agreement ruled void and unenforceable due to unconscionability.

Lopez v. Bartlett Care Center: A wrongful death matter that confronts the issue of agency authority and substantive unconscionability.  The Court held that an arbitration agreement signed by a daughter on behalf of her mother was procedurally unconscionable because the mother was not present when the daughter signed the agreement where the care center asserted the contrary.  Moreover, the Court held the agreement substantively unconscionable because the provisions in the agreement were substantially one-sided.

Bustos v. Wells Fargo: A close look at the provisions of the California Homeowners Bill of Rights (CABOR) and what remedies it provides.  The Court held that the bank was in violation of the CABOR and in response granted injunctive relief in the form of a Temporary Restraining Order (TRO) in addition to $4,200.00 in attorneys fees.  Wells Fargo argued that the plaintiff was not entitled to injunctive relief because the matter was not finalized based upon the grant of the TRO and therefore not a prevailing party.  However, the Court disagreed and found that a TRO is a Preliminary Injunction and therefore Plaintiff is in fact a prevailing party.

Arias v. Residence Inn by Marriott: A case dealing with an employment class action and the implications of the Class Action Fairness Act (CAFA) for the purposes of removal and remand. 

Mancini Associates v. Schwetz: A look at an award of attorney fees arising from the breach of an agreement. 

Davis v. Ross: A dispute over a disabled parking spot leads a woman to a felony vandalism conviction.  She then sues the victim of her vandalism and loses because of the principle of Litigation Privilege after a Motion for Judgment on the Pleadings.  She argued the concept of spoliation of the evidence and the Court ruled that the argument only applies to non-communicative conduct and is also subject to the Litigation Privilege.

Brian, and Shant sit down with attorney Marina Pacheco of Kabateck LLP to discuss the complicated world of filing childhood sexual assault cases. Of particular importance is a deadline regarding the statute law CCP 340.1 (sec Q), which starting in January 2020 gave a three year window for people to file a childhood sexual assault case if they were ineligible to do so under previous laws and statutes. That provision is set to expire at the end of 2022. This primarily affects people over the age of 40 who were aware that their psychological injury was caused by the sexual assault for more than five years before the case was filed. After the expiration of the three year revival window, people over the age of 40 will still be able to file old cases, as long as they can demonstrate that they had not been aware of the abuse more than five years before the filing, meaning the memories were either repressed or the person was unaware that what they experienced would qualify as sexual abuse. The process to file a childhood sexual assault case for people who are over the age of 40 is a complicated process which requires proof of merit from a mental health professional plus proof of merit from an attorney. Marina breaks down the complicated provisions in a very detailed and worthwhile explanation.

While the Court of Appeal issues opinions that continue to jeopardize PAGA, corporate lobbyists have drafted a proposed ballot initiative that would kill PAGA entirely.

Brian and Shant address a recent court ruling as well as proposed legislation that may significantly weaken or even eliminate the use of the Private Attorneys General Act (PAGA) in California. In September, the Second District Court of Appeal, in the case of Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, held that trial courts had the right to determine whether a PAGA case is manageable and that a defendant’s right to present an affirmative defense must be taken into account. Brian and Shant discuss the common tactic defense attorneys take to make a PAGA case as unmanageable as possible by presenting an affirmative defense to each individual employee present in a PAGA claim, which means asking the court to hear from hundreds or even thousands of employees in a case—rendering a case unmanageable. 

Next, Brian and Shant discuss a recent “request for title and summary filing” (a pre-requisite for a ballot initiative) with the State’s Attorney General of a bill that would effectively eliminate PAGA. It would not preclude workers from acting on behalf of other aggrieved workers who have faced workplace violations, but it would also preclude lawyers from representing aggrieved workers under the PAGA statute. Instead, workers would be expected to file their own individual claims without the assistance of legal representation or to wait for the state itself to take on their case. 

If you have any questions about PAGA cases or have any other interesting cases or questions you would like to please reach out to us. 

Brian Kabatek: bsk@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

Brian and Shant discuss the following cases:

Salazar v. McDonald’s Corp.: Brian and Shant look at a 9th Circuit case involving the the Joint Employer Doctrine as it applies to a franchisor’s control over employees working for a franchisee.

Modaraei v. Action Property Management, Inc.: Brian and Shant discuss a holding from the California Court of Appeal in a misclassification class action where the Court affirmed the denial of class certification based on issues of predominance and superiority. The record contained evidence sufficient to support the trial court's finding that variations between the hundreds of properties the 228 putative class members were responsible for would command individual inquiries. Similarly, the evidence to support the trial court's superiority determination was largely the same as evidence supporting the predominance determination.

Abir Cohen Treyzon Salo, LLP v. Lahiji: After a client fired her attorney and his firm, the firm placed a lien on the client's further recovery. The former client’s daughter then wrote a potentially defamatory review online. The firm them filed suit against the client's daughter for defamation. The Court of Appeal affirmed the trial court's grant of the daughter's motion under the anti-SLAPP law. The court agreed with the trial court's conclusion that plaintiffs did not make a prima facie showing that the daughter was legally responsible for the Yelp review postings that underly their defamation claim.

Garcia v. Myllyla: Nine individual tenants prevailed in a jury trial against former owners of an illegally operated building on claims stemming from uninhabitable conditions in the building. Defendants were owners of a two-family residential building that they rented as 12 separate units. The Court of Appeal affirmed and held that the owners forfeited their argument that plaintiffs failed to introduce evidence of net worth; substantial evidence supported the jury's finding that defendants engaged in conduct warranting punitive damages; the punitive damages were not excessive; sufficient evidence supported the jury's award of noneconomic damages; the trial court acted within its discretion in declining to offset damages with the amounts from prior settlements; and defendants failed to show that the jury's verdict was a result of misconduct or unfair prejudice.

Brian and Shant discuss the following cases:

Sharon v. Porter: Establishing standing in a legal malpractice cases, the statutory framework of the statute of limitations, and the importance of specifying the amount or filing a statement of damages along with a default judgment.  

Sprengel v. Zbylut: Implied attorney-client relationships and the distinctions between how it applies to a relationship with the shareholders of a corporation and the corporation itself.  

Henderson v. Equilon/Shell Oil: The Joint Employer Doctrine and the definition of “suffer and permit” from the landmark case of Martinez v. Combs.  The ABC Test in Dynamex and how it applies to franchisees and franchisors. 

Gonzalez v. San Gabriel Transit: Brian and Shant discuss whether the Dynamex Decision applies to claims retroactively, followed by a discussion of the future of the gig economy.

Brian and Shant discuss the following cases:

CIGA v. Azar, Sec. of HHS: When Medicare has a primary claim against an insured party and the insurer becomes insolvent, state-mandated CIGA steps in but as an insolvency insurer not a secondary payor.

Kim v. United States: Two young boys fall victim to a deadly outcome when a tree limb breaks loose while camping in Yosemite. Unfortunately for the family, the FTCA bars claims deemed a discretionary function of federal officials.

Target Corp. v. Golden State Insurance: When an additional insurer seeks indemnification, does the merit of a claim determine the outcome when the nature of the claim is beyond the parameters of the indemnification agreement.

Ferra v. Loews Hollywood Hotel: A hotel bartender argues that compensation provided to her for missed breaks should include the full value of the hours worked or the premium, inclusive of non-discretionary bonuses and gratuities.

Brian and Shant discuss the following cases:

Dobbs v. City of LA (Convention Center): In terms of design immunity, to determine whether discretionary authority applies, a question of law, the Court states that as long as reasonable minds can differ, discretionary authority can be provided.  The Plaintiff lost when arguing that the design of a bollard, a sturdy pillar used to prevent access to a structure, created a dangerous condition.

Kalta v. Fleets 101, Inc.: Kalta purchased a vehicle through his business that was for personal use and as a result, Defendant argued that Kalta was no longer a consumer and therefore does not have standing to sue under the CLRA.  However, the Court of Appeal held any person who acquires goods for personal use is a consumer and thus has standing. 

Eck v. City of LA (DWP): An objector at a final settlement approval hearing must have first filed a Motion to Vacate the settlement or Motion to Intervene, and if not, is not considered a party and does not have standing to appeal. 

Hyundai v. Morris: It is inappropriate and an abuse of discretion to tie an attorney fee award to the amount of the prevailing parties’ damages or award.  As long as the attorney fees are reasonable, fair, and justified, the fees are appropriate.  However, the attorney has a responsibility to explain the details about the hours worked.  Brian provides further insight by adding how the cost of litigation has routinely affected the issue of attorney fees.

Join Anastasia Mazzella and Shant Karnikian as they discuss how attorneys can best utilize expert witnesses in their cases. They are joined by a highly respected expert witness in the field of neuropsychology, Dr. Dominique Kinney.

In this episode, Dr. Kinney gives attorneys 6 tips on how to make the attorney-expert relationship more productive, including the importance of choosing the right expert early in the litigation and providing them with ample time to review records, why attorneys need to listen more and talk less when they meet with experts, the best way to prepare experts for depositions, and more. She also discusses why an expert witness is not meant to be a “team player” but rather an impartial authority who can be trusted to tell the truth.

If you want a copy of Dr. Kinney’s Tips for Maximizing the Attorney-Expert Relationship, please reach out to Anastasia at am@kbklawyers.com.

To contact Dr. Kinney about her services:

888-888-5902

Email: experts@arrowheadeval.com

Website: California Independent Medical Evaluation Services | AES (arrowheadeval.com)

For other questions reach out to: 

Brian Kabateck: bsk@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about Kabateck LLP, visit www.kbklawyers.com 

Today our intake attorney Annie Martin-McDonough brought a fascinating topic to our attention with the “tort of seduction.” In the 1700’s this was a tort that allowed for the father of a daughter to sue a man, who had seduced and impregnated the woman, for loss of services.  

Later in the Victorian era the tort evolved to allow a woman to sue for emotional damages due to a loss of virtue if a man tricked her into a sexual relationship. 

Annie, Shant and Brian discuss how the tort differed from sexual assault and the history of the tort being abolished in many states starting in 1935 due to some reasons that were pro-women’s rights and other reasons that could be seen as sexist towards women. 

The tort still exists in many states today, though it is very rarely brought to court. Annie gives her argument and examples for the positive uses the tort could have today. 

Brian Kabatek: bsk@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about the firm, BK Law, visit www.kbklawyers.com  

Join the conversation this episode with Anastasia Mazzella and Marina Pacheco, partners at Kabateck LLP, about their experiences and thoughts on gender bias in the legal field. They'll identify specific situations they've encountered and share observations on how improvements can be made to minimize the issues going forward.

While 47% of lawyers at the associate level were women, that number drops to 22% at the partner level. Anastasia and Marina discuss with Shant Karnikian, opportunities to keep more women practicing law including more equitable pay, more supportive environments that focus on a better work-life balance, and addressing biases people may not even be aware they have. 

This is a must share episode that goes beyond the topics traditionally discussed on the show.   

Anastasia Mazzella: am@kbklawyers.com

Marina Pacheco: mrp@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about the firm, visit www.kbklawyers.com

Brian and Shant discuss cy pres in class action settlements, obtaining a default judgment in a PAGA case, expert declarations in malpractice cases, disqualification of lawyers in a partnership dispute, insurance coverage when insured fails to pay self-insured retention, and liability of a national fraternity for injuries sustained by a plaintiff at a local party.

Brian sits down with ethics attorney Ellen Pansky, remotely, to discuss COVID-19 and its impact on virtual court and other legal proceedings and her work as an advocate for matters involving the state bar’s regulations on professional conduct. 

Union Pacific Railroad v. Ameron Pole Property

Brian and Shant discuss an inquiry into the causation element of an accident involving a light pole.  The plaintiff’s case first thrown out on summary judgment was later reversed because the remaining parties’ indemnity suit and the plaintiff’s complaint were inextricably connected.

Gordon v. ARC Manufacturing, Inc. 4th DCA

Brian and Shant discuss whether or not the court should have instructed the jury on primary assumption of risk on an inherently dangerous activity.  The court did not and the issue on appeal was that very issue.  Shant further details that the nature of the activity not the reasonableness of the plaintiff’s conduct, is a determining factor.

Bingener v. City of LA 2nd DCA

Brian and Shant discuss the exceptions to the Going and Coming Rule after a water treatment worker struck and killed a pedestrian on his way to his water treatment plant.  The plaintiff argues that his workplace would be liability because they allowed him to come back to work too early after a prior workplace injury.

Riley v. Alameda County Sheriff Office 1st DCA

Police immunity for officers involved in vehicular accidents as a result of a police pursuit.  The policy addressing pursuit must be certified and it must address speed and air support.  Brian and Shant unpack the policy requirements to determine liability.

Brian and Shant speak with attorney Gary Partamian, who focuses on cases of childhood sex abuse. They discuss the changes to CCP 340.1 and how to possibly file a case on behalf of a client who is over 40 years old and suffered sexual abuse as a child. Learn about the importance of working with prospective clients in these cases to confirm that they qualify under the strict requirements of CCP 340.1 to bring a case despite their age--including issues that could be fatal to their potential case.  

You'll also hear, more generally, how to work with a client in cases of abuse and trauma and how important empathy, patience, and understanding is when helping clients through these types of cases. 

Brian Kabatek: bsk@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about the firm, Kabateck LLP, visit www.kbklawyers.com

This episode, Anastasia Mazzella, partner at Kabateck LLP, sits down with Leadership Coach (and friend) Dr. Sohee Jun to talk about imposter syndrome. Imposter Syndrome is a pervasive feeling in many professions but is noticeably acute in the law and particularly affects women and people of color. 

Women make up a small percentage of leadership roles in law firms and are paid less than men and against this backdrop Sohee and Anastasia talk about what Imposter Syndrome is and how to combat it as you progress in your career. Sohee breaks down some key ways to identify the feeling and how to overcome it. 

Visite Dr. Sohee Jun’s website

Anastasia Mazzella: am@kbklawyers.com

For more information about the firm, Kabateck LLP, visit www.kbklawyers.com

From his first trial representing a family in a bad faith case resulting in a successful verdict to his recent whistleblower cases returning money to the federal government, Niall is passionate about his advocacy for the under-represented.  Niall has spent his entire 28-year career with his current firm where is the managing partner.  He suggests young lawyers to have the courage to expand their comfort zone and encourages lawyers to give opportunities to young lawyers.  More information about Naill McCarthy is available here: https://www.cpmlegal.com/

Becerra v. Dr. Pepper

Brian and Shant discuss the use of the word “diet” and whether it misled consumers to believe that diet soda would likely promote weight loss.  Multiple dictionaries were used to understand what the word “diet’ is meant to convey, but the determination is based on the reasonable consumer test.

Stimpson v. Midland Credit Management

Brian and Shant discuss defaulted payment to a creditor.  The debt went into collections and the resulting action analyzed the statute of limitations of a debt in credit report.  A time-barred debt although not actionable in court, is not discharged.

Patel v. Mercedes Benz USA

Brian and Shant discuss the Song-Beverly Consumer Warranty Act.  The trial court discovered that the named plaintiff was not making the payments but rather another party.  Attorney fees were recoverable although the prevailing party was not the named party to the action.

Smith v. LoanMe, Inc

Brian and Shant discuss the legality of recorded telephone calls with business entities.  The CA Privacy Act, Section 632.7 specifically does not allow the recording of a phone call without consent.  What’s perplexing is that the legislative intent seems to imply that the Act was implemented to require consent of all parties and prevent eavesdropping.

Can you pop the lid on a UM/UIM policy? Join hosts Brian Kabateck and Shant Karnikian as they invite attorney Barrett Alexander of Kabateck LLP to talk about the difference between a third-party bad faith claim and a UM/UIM bad faith claim.  What legal remedy and rights does the injured party have in each context?  Hear specific case examples about how this is done and what the future may hold when it comes to bad faith negotiations with the insuring entities.  

Brian and Shant discuss the following cases:

Brown v. Upside Gating: Defendants file an appeal to a judicial order arguing that it was tantamount to an injunction because it required appellants to take affirmative steps to affect invalidation of the releases at issue.  The court clarifies that an order is not an injunction and therefore not appealable. 

Williams v. Impacts Lab, Inc.: Plaintiffs were provided leave to amend their complaint to add a new plaintiff as a class representative.  Unfortunately, counsel filed the amended complaint with the same plaintiff and yet again defendant’s motion was granted.  In order to apply, an appeal must derive from something dispositive in the case. 

Death Knell Doctrine – a de-facto final judgment for absent plaintiffs under circumstances whereto the persistence of a viable plaintiff claim creates a risk – no formal final judgment will be entered.  In order for the doctrine to apply, all class allegations must be disposed, because a partial rejection of allegations is not enough.

Henson v. Fidelity: Plaintiffs filed a class action for RESPA violations involving real estate.  The district court judge throws everything out but a sliver of the case making it unappealable.  Thereafter, the parties enter into an agreement to dismiss for purposes of preserving an appeal.  However, USSC in Microsoft v. Baker ruled that parties cannot stipulate to appellate jurisdiction.

Assembly Bill 9: Stop Harassment and Reporting Act (SHARE) extends the statute of limitations exclusively for employment discrimination.  A FEHA letter/complaint must be filed within three years, extended from one year, from the incident(s) that is actionable.

Brian and Shant discuss vandalism and civil unrest with Michael Childress, Of Counsel at Kabateck LLP. 

Large and small business from around the country took a hit in the wake of protests related to the death of George Floyd and the Black Lives Matter movement. Brian, Shant, and Michael discuss how these events have impacted property insurance policyholders, the damage that ensued, and how to better understand the claims process.

Brian, Shant, and their colleague Michael Childress discuss how insurance companies instill fear in the public in order to suppress a collective voice.  Misinformation, intimidation, and claim denials have become the fundamental recipe for the multi-billion dollar industry.  The team discusses these problems and discuss how the shift from service sector to profit center occurred.

Brian and Shant discuss serving complaints on foreign governments, dealing with injuries sustained while working for a subcontractor, immunities of a school district, deadlines for giving notice of a medical malpractice claim, arbitration in interstate trucking, and TCPA claims. 

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant speak with renowned defense attorneys Dana Fox and Eddie Ward. They discuss the defense perspective on trials, civility, and moving cases along current COVID-19 crisis. Dana Fox and Eddie Ward are partners at Lewis Brisbois. Dana Fox has a reputation as the “go-to” attorney in high profile, high exposure catastrophic accident, police use of force, premises and product liability, public entity, and general liability cases. Edward Ward has tried multiple high exposure cases to verdict, including cases involving wrongful death, catastrophic injury, premises liability and employment matters.

Brian and Shant discuss the following cases:

Monster Energy Company v. City Beverages LLC: When must the arbitrator disclose information regarding their financial interest in the arbitration company, and whether an unfair advantage exists when the arbitration company has handled numerous arbitrations for the advantageous party.

Nayab v. Capitol One Bank: What determines an “injury” under Article III when a consumer’s credit report is run without prior approval?  And, what can the consumer do to prevent that conduct in the future?

Stafford v. Attending Staff Association of LAC & USC Medical Center: Whether an elderly physician forfeited his right to administrative remedies when he chose to file an unsuccessful action in superior court prior to concluding the administrative appeal process.   

Davis v. TWC Dealer Group: Not one, but three separate contracts of adhesion from a car dealership to a family tasked with running the finance department.  What constituted substantive and procedural unconscionability and the need for both to exist in order for the claim to survive.

Cacho v. Eurostar

Defendant had facially non-compliant meal & rest break policies.  The court concluded that the class cannot be certified because Plaintiff did not sufficiently illustrate a uniform policy of missed meal breaks.  Individual questions predominated as to whether the plaintiff missed rest and meal breaks. 

In Re Williams Sonoma

A Kentucky resident brought a consumer class action against Williams Sonoma.  However, Kentucky does not provide a legal platform for consumer class actions.  Trial court allowed Plaintiff’s Counsel to conduct discovery to identify a California resident to serve as class representative. Defendants took a writ which the 9th Circuit Court of Appeal granted. Court of appeal held that pre-certification discovery of the identity of class members is not permitted here, given Defendant’s privacy interests. As a result, without discovery to identify who the class representative might be, the case stalls.

Safeway Wage & Hour Cases

An appeal from a rare jury trial of a class action case regarding misclassification of assistant managers who were listed as exempt presumptively as a ploy to avoid protections from wage and hour guidelines.  Jury found in favor of employer, and found that assistant managers were correctly classified as exempt. On appeal, Plaintiff argued that the Court gave improper instruction to the jury. Court of Appeal clarifies the rules regarding exempt work, but ultimately affirms the verdict.  

Murphy v. SFBSC Management

The Ninth Circuit reversed the district court's approval of a settlement notice process and a class action settlement, negotiated without a certified class, in a case arising out of a dispute under federal and California labor law regarding whether exotic dancers working at various nightclubs in San Francisco were misclassified as independent contractors rather than being treated as employees.

Brian and Shant discuss juror misconduct and the collateral source rule, forum selection clauses, employment contracts, and a new statute that's favorable to plaintiffs, two issues of first impressions regarding the five year rule in a "death knell" doctrine, uninsured motorist coverage in the context of an umbrella policy, and PAGA & claim splitting. 

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Nationwide Biweekly v. Superior Court (CA Sup. Ct.)

The UCL and False Advertising—whether parties are entitled to a jury trial in a UCL case.

Calucci v. T-Mobile (4th DCA)

Punitive Damages—a good primer on punitive damages.

LN Management LLC v. JP Morgan (9th Circuit)

Whether Dead People Can Be Sued—spoiler alert. . .they can’t.

Halyard Health v. Kimberly Clark 2nd DCA

Brian and Shant discuss a declaratory relief action in a matter that arises out of Michael Avenatti’s Kimberly Clark Case.  The issue is whether Delaware or California law dictates which defendant is responsible for a punitive damages award granted to the plaintiffs. 

Safechuck v. MJJ Productions 2nd DCA

Brian and Shant discuss childhood sexual assault lability of a 3rd party non-perpetrator and whether a revival statute applies to two adults over the age of majority.  AB 218 recently amended the statute of limitations under CCP 340.1, and claims can now be brought before the victim’s 40th birthday.  Even if an action was previously dismissed, the issue of whether the amended statute applies is determined by the finality of the underlying dismissed action.

Warwick Ca. Corp v. Applied Underwriters 1st DCA

Brian and Shant discuss an appeal from a statement of decision issued by a trial court.  A statement of decisions is not an automatically appealable order because it is not a judgment that has can be entered or enforced.  It can be a precurser to a judgment but here no judgment was ever entered. 

Shayan v. Spine Care & Orthopedic Physicians 2nd DCA

Brian and Shant discuss an interpleader action where a client had to compete with the other creditors for the remainder of the settlement.  Ultimately, the opposition did not show up to the interpleader action and subsequent counsel sought to vacate under a 473(b) motion. Failing to appear for a trial does not warrant relief.

With the California Private Attorneys General Act in the news again after the Supreme Court decision on Viking River Cruises, Inc. v. Moriana, Brian and Shant dive into what the decision means for the future of PAGA and how it may be enforced now that the Federal Arbitration Act can preempt the California law in certain situations. 

They also discuss what might happen if enough signatures are collected to put PAGA on the chopping block in the 2024 election, including legislative compromises that would keep PAGA intact but attempt to reduce abuses, particularly those aimed at small businesses. 

Lastly, Brian and Shant discuss a ruling by the California Fourth District Court of Appeals in the case, Estrada v. Royalty Carpet Mills, Inc., which held that PAGA cases could not be dismissed by the court because of manageability issues, which is in direct opposition to the Second District Court’s ruling in Wesson v. Staples the Office Superstore, LLC in 2021. 

Since PAGA claims are meant to act in the stead of the California Labor & Workforce Development Agency, the court said that cases cannot be thrown out due to manageability concerns because, “the LWDA is not subject to a manageability requirement when it investigates Labor Code violations and assesses fines internally,” thus PAGA claims can not be subject to manageability requirements either.

The case will now head to the California Supreme Court and Brian and Shant give their predictions on where the court will land. 

Brian and Shant discuss the following cases:

Legal Match.com Matter: The attorney defendant was sued by a legal referral website for unpaid bills, but counterclaimed arguing that the contact was illegal and therefore unenforceable because the company was not registered with the State Bar as a referral service. The website argued that they are not a referral service because do not screen potential clients, but rather just provided a contact list. The Court of Appeal rejected the website’s argument.

Karnofsky v. At Your Door Self-Storage: Plaintiff signed agreement with storage facility that he assumed responsibility. Storage facility also offered insurance to cover for risk of loss. The court finds that this behavior is a legal shifting of the risk and Plaintiff cannot proceed in his lawsuit for claims of water damage against storage facility.  

Chen v. Los Angeles Truck Centers: Fatal bus accident involving a tour bus where a California driver from a California tour company leaves from Nevada to Arizona. The tour bus was sold by an Indiana manufacturer who was originally named in the lawsuit.  Brian and Shant dissect this rather perplexing law-school-exam-like fact pattern to analyze the Court’s conclusion that Indiana law governs the case. The Court holds that the law governing the case at the outset of the litigation remains the applicable law even if a party from that state is subsequently dismissed. 

County of Ventura v. Public Employment Relations Board:  SCIU was to organize non-physician employees at a private medical center in Ventura.  The Public Employment Relations Board reasoned that the clinic employees are joint employees of the county.  The county argues that the employees are private and are not entitled to unionize. Ultimately, the control factor is the main issue – if the entity retains control over the employer it looks to factors to determine the level of control over the employee.

Mary Alexander – Mary’s practice is comprised of product liability, toxic tort, auto accidents, pharmaceutical cases, and class actions.  With an undergraduate focus in science and an objective toward biology and toxicology, she has handled cases that address environmental and workplace risks associated with the use of dangerous chemicals.  Mary recently completed a 19-year long journey trying a matter involving led-based paint.  Filed in 2000, she successfully pursued paint companies that manufactured, sold, and promoted led-based paint for use in homes and work environments.  More information on Mary Alexander is available here: https://maryalexanderlaw.com/

Brian and Shant discuss three cases involving arbitration, primary assumption of risk (The Fireman's Rule), and an insurance case from The United States Court of Appeals for the Ninth Circuit.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant discuss a United States Supreme Court Case that has to do with the Class Action Fairness in Removal Statute, treble damages under penal code, failure to prosecute during a case in trial, picking off class representatives from First District Court of Appeal, and one-way attorney fee statute under labor code. 

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Today Brian and Shant are joined by jury consultant Harry Plotkin. Harry has been a consultant for over 20 years and works with civil prosecutors in consumer cases. He has selected juries in 42 cases that resulted in eight-figure awards since 2013 and has consulted in over 1,000 cases nationwide in his career.

Brian, Shant and Harry talk about what to look for in prospective jurors, whether conservatives or liberals make for better jurors in civil cases and how important it is to get prospective jurors answering open ended questions to get a sense of how they feel about the law. 

They also cover juries in the age of COVID and Zoom, how anger and mistrust during COVID has been good for prosecutors trying cases against big corporations and how difficult it is to pick a jury when everyone is wearing a mask...pros and cons.

You can reach out to Harry with any questions you may have at: harry@yournextjury.com or visit his website www.yournextjury.com. 

If you have any questions about jury selection or have any other interesting cases or questions you would like to please reach out to us. 

Brian Kabatek: bsk@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about the firm, BK Law, visit www.kbklawyers.com

Brian and Shant discuss the following cases:

Hood v. Gonzalez: A nightmare client who had gone through five lawyers.  The client signed the settlement agreement but refused to sign the check then the court appointed an elisor to endorse the check in lieu of the client’s endorsement. 

Soni v. SimpleLayers, Inc.: An untimely request to arbitrate in a fee dispute leads to a $2.50 award.  The critical issue is whether the clock starts to run to make a demand from the moment the award is received or when the demand is dropped in the mail.

Fabian v. Renovate America: Solar panels were attached to the plaintiff’s home and a deed was taken out on the plaintiff’s home for payment.  In response to the plaintiff’s lawsuit, Renovate files a petition to compel arbitration grounded on the theory that the plaintiff signed the contract via DocuSign.  

ENA North Beach, Inc. v. 524 Union Street: A restaurant-tenant sued the landlord claiming misrepresentation in leasing the space.  Permits were allegedly included in the lease but were not obtained. The court ruled in favor of the tenant and punitive damages were awarded.  

Brian and Shant discuss various types of litigation funding available to lawyers and law firms, and the potential pitfalls of the borrowing money to fund cases. Though not a novel practice in the legal profession, reliance on loans can become problematic for the practitioner and for the plaintiffs’ bar as a whole.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant sit down with appellate attorney Harry Chamberlain to discuss the origins of the of the Anti-SLAPP statute, protecting the free speech of lawyers, and tips for preserving a good record for appeal.  Harry is certified as an Appellate Specialist by the California State Bar Board of Legal Specialization, handling hundreds of appeals across the country, including numerous cases before California Supreme Court such as Rubin v. Green (absolute litigation privilege), Jarrow Formulas v. LaMarche (First Amendment protections under the anti-SLAPP statute), Temple Hospital and Cedars Sinai Medical Center v. Superior Court (the “spoliation” cases) and Lee v.Hanley (defining a lawyer’s “professional services” for purposes of the one-year statute of limitation).

In this episode Shant and Marina Pacheco connect with Alexandra Steele Cooper about what it’s like to go out on your own and start a new firm. Alexandra spent several years at a large firm as a trial lawyer before starting her own firm, Steele Cooper Law where she focuses on personal injury and employment law. She has recovered tens of millions of dollars for her clients. 

Hear how she prepared to open her own firm, the upsides of being your own boss, as well as, the drawbacks and how she uses a network of talented lawyers and support (including her husband) to help her when she has questions about her cases. She explains how she re-imagined herself with her own firm and what the process was like.  

Visit Steele Cooper law

Check out the helpful site Alexandra mentioned Lawyerist

Marina Pacheco: mrp@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about the firm, Kabateck LLP, visit www.kbklawyers.com 

 Craig discusses how he approached his first trial just short of 30 days of becoming a practicing lawyer and how it helped develop his skill despite how difficult the challenge.  Craig uses his 13-year career as a Contra Costa County Public Defender as a foundation to approach his cases from a different perspective.  Craig’s unique perspective allows him to view even the most challenging matters with confidence and positivity.  More information about Craig and his practice can be found here: https://altairlaw.us/

The son of immigrant parents and the eldest of eight children, Minh is no stranger to hardship. Minh worked three jobs through college to fund his family’s mortgage and made his way to Hastings College of Law in San Francisco. Minh’s passion for advocacy comes through in his personal injury trial practice and his pro bono work from his past presidency of the Los Angeles Trial Lawyers’ Charities, low-income, affordable housing work at Linc Housing, community work at the YMCA of Greater Long Beach, and his upcoming presidency of CAALA in 2023. More information about Minh Nguyen and his practice can be found here: https://www.nguyenlawyers.com/

Brian and Shant discuss Personal Injury Cases that involve the Standard on Summary Judgment and a Continuance when Discovery is Outstanding; Joint and Several Liability Principles; a Primer on 998 Offers; and the Recovery of Emotional Distress Damages in a Breach of Contract Dispute.

Insalaco v Hope Lutheran Church (1st DCA)

MSJ Standards and a Continuance when Discovery is Outstanding

Shuler v Capital Agricultural (2nd DCA)

A Reduction in Damages Subject to Joint and Several Liability

Anthony v Li (1st DCA)

A Foreign National Insured by a Rental Car Policy and What Party Should Respond to the 998

Robertson v Saadat (2nd DCA)

Recovery of Emotional Distress Damages in a Breach of Contract Dispute

Brian and Shant discuss a defendant waiving their right to arbitration, handling a claim with an insurance company and not signing over rights, Ninth Circuit Court of Appeal arbitration, Class Action Fairness Act, Porter Ranch & SoCal gas leak case, and mandatory fee arbitrations & whether or not it's appealable when you get an order denying trying to compel arbitration over attorney's fees.

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

In Re Facebook Inc Internet Tracking (9th Circuit)

Facebook and Whether Their Tracking of Users Violates Various CA Privacy Statutes

Reynolds v Ford Motor Co (1st DCA)

Lemon Law Claims and the Proper Measure of Fees

Waller v FCA US LLC (2nd DCA)

Admissibility of An Expert’s Opinion

Luna v. Hansen (9th Circuit)

The Fair Credit Reporting Act and the Disclosure Requirements

Walker v Life Insurance Co. of the Southwest (USDC Central)

A UCL Violation—pre-application illustrations in a life insurance policy.

Textron, Inc. v. Travelers Casualty and Surety Co. (6th DCA)

Choice of Law Rulings in Insurance Cases—whether it applies as Collateral Estoppel in a subsequent coverage action.

KLA Tencor Corp. v Travelers (2nd DCA)

The Duty to Defend a Malicious Prosecution Case—but does it arise out of an abuse of process claim?

Pacific Pioneer Insurance Co. v Superior Court (4th DCA)

An Insurers’ Appeal of a Default in Small Claims Court—the applicability of a De Novo appeal in a small claims judgment.

From an early age, the son of an elementary school principle and school secretary, Greg understood his path to protect those who were unable to protect themselves. Greg’s practice in Newport Beach was one of the first practices to successfully take an e-cigarette matter to trial.  Greg discusses one of his most memorable cases as a plaintiffs’ attorney where he successfully advocated for an elderly woman who had tragically lost the use of her limbs and extremities due to an accident involving a city-operated vehicle.  Greg also pays great respect to William Shernoff, the great practitioner of insurance bad-faith.  More information about Greg Bentley and his team is available here: https://www.bentleymore.com/

Brian and Shant discuss the following:

The Estate of John Steinbeck: Brian and Shant do a dramatic reading of a case arising out of John Steinbeck’s estate. 

Crouch v. Trinity Christian Broadcast Center of Santa Ana: A look at whether a familial relationship can be used to temper the legal impact of comments used to establish a claim for intentional infliction of emotional distress.  

JH Boyd v. Kenneth Robert Boyd: Brian and Shant discuss the direct appealability of a denial of a Motion to Compel Arbitration and the distinctions between that and a Motion to Compel Judicial Reference. 

Roberts v. City/County of Honolulu: A discussion about the two-pronged approach for calculating statutory attorney fees for handling Civil Rights cases.  The 9th Circuit held that a lawyer engaged in dual tracking who sets out to settle a legal matter while simultaneously working on a preliminary injunction in the same matter is deemed to recover full attorney fees for excellent results. 

In Re Alpha Media Resort Investment: The steadfast five-year window (C.C.P. 583.310) to bring a matter to trial may still provide for exceptions under certain circumstances.  Brian and Shant discuss these unique circumstances. 

Brian and Shant discuss the crisis created by the lack certified court reporters in California. The shortage means that many cases don’t get a court reporter or that lawyers and clients are spending thousands of dollars to hire a private court reporter. 

Why has this happened? Two reasons: First, the passage rate for the court reporter certification exam is painfully low, around 20%. Second, the union which represents the court reporters continues to block any effort to use electronic recording or transcriptions as an alternative. They claim the technology isn’t good enough, which is false. The result is impending crisis where many people don't have access to justice.

Next Brian and Shant talk about Disney’s lawsuit against Ron DeSantis. DeSantis recently revoked Disney’s rights of governance over their property area called Reedy Creek. Some people say it's a trumped up lawsuit that won’t go anywhere, but Brian and Shant say that the “takings clause” in the 5th Amendment is very strong and that DeSantis’s blatant public comments about retaliating against Disney for disagreeing on his stance on LGBTQ+ rights makes the lawsuit meritorious and could spell trouble for DeSantis.   

Brian Kabatek: bsk@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about the firm, Kabateck LLP, visit www.kbklawyers.com 

Brian and Shant discuss three hot topics in the law starting with the concern that the ability to appear in court virtually in many circumstances could be on the chopping block. COVID made remote appearances a normal occurrence and have made work done by lawyers and the courts much more efficient. But the statute that allows for remote appearances was set to end July 1 and that would be disastrous for an already strained court system. 

Can Chat GPT write briefs for you? Technically yes, Chat GPT will write anything you ask it to, but there's more to be aware of. 

Lastly the conversation shifts to a bill signed by Gov. DeSantis that caused sweeping tort reform in the state of Florida and the implications that bill could have on a national stage if DeSantis wins the Republican nomination. Tort reform has long been a target of Republicans and DeSantis showed that he is willing to dismantle many laws that protect people's rights to recoup damages when they are hurt or wronged.

Brian Kabatek: bsk@kbklawyers.com

Shant Karnikian: sk@kbklawyers.com

For more information about Kabateck LLP, visit www.kbklawyers.com

Brian and Shant revisit the standards for bad faith and opening up the lid on a policy. They discuss two recent cases from the California Court of Appeal: 

Pinto v. Farmers Insurance Exchange (2021) 61 Cal.App.5th 676 and 

Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833.

For more information visit www.kbklawyers.com

Brian and Shant have an in-depth discussion with attorney and arbitrator Lee Straus about a case reviewed on a prior Civil Action podcast. Mr. Straus breaks down the subtleties of the case and further explains the purpose and reasoning behind his ruling. They also discuss Straus’ involvement and development in the State Bar’s Mandatory Fee Arbitration program where he is heavily involved.

Please note:  Mr. Straus would like to clarify that all fee disputes between an attorney and client(s) require the attorney to send the State Bar approved Notice of Client’s Right to Fee Arbitration form to the client(s) pursuant to B&PC § 6201.

Brian and Shant discuss the following cases:

Johnson v. MGM: Plaintiff argues that the District Court did not do an appropriate calculation to determine attorney fees and in response, the District Court lays out multiple factors to determine the appropriate percentage.  

Handoush v. Lease Finance Group: For Choice of Law to be enforceable, CA looks to whether the application of another state’s law would violate primary substantive rights.  Moreover, in CA parties cannot waive the right to a jury trial prior to the dispute, but in a state where the law is not an inviolate right then the parties can waive the right to a jury trial.  

Silbaugh v. Elaine Chow (DOT): When suing a government agency, the party pursuing the agency must name the head of that agency.  However, the plaintiff simply named her supervisor and not the head of the agency.  In the time it took to cure the defect, the Statute of Limitations had run baring the lawsuit.  The Relation Back Doctrine however allows an amendment relates back to the original filing if it relates back to the original conduct or occurrence.  

Wishneb v. Northern Mutual Life Insurance: Plaintiff charged with compounded interest after borrowing money from his life insurance policy arguing a violation of usury laws.  In 1918, California instituted usury laws with provisions laying out a blanket percentage in order to prevent over-charging due to compounded interest.  However, in 1934, California realized the system required adjustment giving the power back to the legislature.  

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Hance v Super Store Industries (5th DCA) 

Enforceability of a Fee Share Agreement

Fenimore v The Regents of the University of CA (2nd DCA) 

Computation of the Statute of Limitations

Brewer v. Remington (5th DCA) 

The Delayed Discovery Rule

San Francisco Print Media Company v. The Hearst Corporation (5th DCA) 

Admissibility of Expert Testimony

Brian and Shant discuss Insurance Cases the Duties of the Insureds, the Genuine Dispute Doctrine, Forum Selection Clause in an Insurance Contract, and Vertical versus Horizontal Exhaustion in Insurance Policies.

Mosley v. Pac Specialty

Farming Operation Exclusion Precluding Recovery for Fire Destroying the Property

501 E 51st Street v Kookmin Best Ins.

Captive Experts and the Genuine Dispute Doctrine

Lewis v. Liberty Mutual (9th Circuit)

A Change in Policy, Insurance Code 678.1(d), and Forum Non-Conveniens

Montrose Chemical v. S.C. (Cal. Sup. Ct.)

Elective Stacking—Multiple Primary Policies Used to Exhaustion Allows Access to Others Stacked Above

Brian and Shant discuss Defense Preclusion, Tolling of Legal Malpractice SOL, Cost of Proof on a Prevailing RFA, and Juror Contact.

Lucky Brands v Marcel Fashion (2nd Ct. of Appeals)

A Defense Not Previously Raised is Precluded from Future Assertion

Nguyen v Ford (6th DCA)

In a Legal Malpractice Case, Tolling Only Applies to a Specific Subject Matter in the Particular Matter at Issue

Universal Home Improvement Inc. v. Robertson (1st DCA)

Recovery of Attorney Fees When Failing to Admit an RFA

DeHoyos v Superior Court (4th DCA)

Communication with Jurors Governed by the CCP, Not by a Universal Code of Criminal Procedure

Brian and Shant catch up with Christine Spagnoli, a partner of Greene, Broillet & Wheeler in Santa Monica, specializing in representing plaintiffs in product liability, personal injury and legal malpractice actions.  Chris shares her story of how she came to spear-head litigation to protect consumers from injuries and deaths involving vehicle defects. Chris has obtained many multimillion-dollar verdicts, including the 1999 General Motors case in which a defective fuel tank was found responsible for the burn injuries of two adults and four children, where the jury returned with a landmark $4.9 billion verdict. More information about Chris Spagnoli is available here: https://www.gbw.law/team/christine-d-spagnoli/

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant sit down with Elise Sanguinetti, a founding partner at Arias Sanguinetti Wang & Torrijos, LLP. Elise just completed her term as the president of the American Association for Justice, and she was previously president of both the Consumer Attorneys of California and the Alameda Contra Costa Trial Attorneys Association.  Elise discusses her concerns regarding forced arbitration, the political landscape, and the influences that helped mold her into one of the best trial attorneys in California. More information about Elise Sanguinetti is available here: https://aswtlawyers.com/attorneys/elise-r-sanguinetti/

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant speak with Genie Harrison, a civil rights and employment attorney with a reputation for being a fierce advocate for victims of sex abuse. Genie discusses some of the challenges women face in all careers (including in the practice of law), proposes changes we should all fight for, and makes a big announcement. In 2018, Genie Harrison was recognized by the Daily Journal as one of the Top 100 Lawyers in California — across all categories of law. She is currently the First Vice President of CAALA, and in 2021 will be the fifth female President of the organization in its 70thAnniversary year. 

More information about Genie Harrison is available here: https://genieharrisonlaw.com/genie-harrison/

Brian and Shant interview Geoff Wells, a partner of Greene, Broillet & Wheeler in Santa Monica with an impressive record of verdicts and settlement in catastrophic personal injury cases. Geoff discusses the most impactful cases he has worked on and shares his advice for young lawyers. Geoff has obtained more than 250 multimillion-dollar verdicts and settlements in complex legal actions. Geoff was President of CAALA of 2014 and dedicates his spare time to supporting organizations like CAALA and CAOC. More information about Geoff Wells is available here: https://www.gbw.law/team/geoffrey-s-wells/

Brian and Shant have a conversation with Holly Boyer, a partner at Esner Chang & Boyer and is certified by the State Bar of California’s Board of Legal Specialization as an Appellate Specialist. Holly was recently awarded the “Appellate Attorney of the Year” award by the Consumer Attorneys Association of Los Angeles. Holly’s work helped to establish a framework for negligence causes of action against public entity school districts regarding sexual abuse cases. She also recently worked with the Consumer Attorneys of California to address statute of limitations concerns with regard to sexual abuse cases.  Holly addresses the issues she faced with being a young attorney and how she found her path to appellate work. More information about Holly Boyer is available here: http://www.ecbappeal.com/pages/staff/1708

Brian and Shant sit down with John K. Courtney, a trial attorney with Girardi & Keese who works on a variety of different areas of practice including aviation, mass tort, and insurance bad faith. Jake has successfully litigated cases wherein he has won verdicts in excess of $20 million, and has settled matters in excess of $70 million. Jake emphasizes the importance of young attorneys getting trial experience at an early stage of their career to better equip them for the developing legal landscape.  Jake is concerned with access to justice with regard to the rising cost of litigation which potentially reduces the consumer’s right to trial by jury.  More information about Jake Courtney is available here: https://www.girardikeese.com/Attorneys/John-K-Courtney.shtml

Brian and Shant interview civil rights trial lawyer V. James DeSimone ("Jim"). Jim tells us about his cutting-edge practice and the impact his work has had on society.  Jim also discusses important changes to California civil rights laws. Jim is an accomplished trial lawyer dedicated to representing individuals in civil rights cases, with an emphasis on employment discrimination and harassment, employment wage and hour class action cases, police misconduct and brutality cases, including wrongful death, excessive force, and false arrest cases, and personal injury cases. More information about Jim DeSimone is available here: https://www.vjamesdesimonelaw.com/attorney-profiles/v-james-jim-desimone/

Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

Brian and Shant sit down with Michael Childress, the newest attorney to join the Kabateck LLP team. Michael Childress focuses his practice on protecting and enforcing the rights of policyholders. Since 1981, he has negotiated, adjusted and prosecuted insurance claims arising in 40 states, successfully coordinating thousands of investigations and working with experts from many fields. Michael discusses the history of first party property insurance claims, and how almost all claims are severely underpaid. Michael shares his advice for holding insurance companies accountable and the importance of reading and understanding an insurance policy.

Brian and Shant talk with Robert Simon, co-founder and lead trial lawyer at the Simon Law Group, at the CAALA Conference 2019 in Las Vegas. Bob shares his story of how he got started, his efforts to empower young trial attorneys, and important cases he has handled that paved the way for the basic tools used in personal injury cases. Bob Simon and his Justice Team have obtained record-setting verdicts and landmark results for injured parties. Bob also hosts his own awesome Justice Team Podcast, featuring other great trial attorneys. More information about Bob and his Justice Team can be found here: https://www.thesimonlawgroup.com/team/robert-t-simon/

And the Justice Podcast can be found here: http://justiceteampodcast.com/

Brian and Shant interview Taylor Rayfield, a trial attorney at Greene Broillet & Wheeler, LLP. Taylor focuses on many aspects of plaintiffs’ litigation but has found a passion in litigating cases that involve sexual abuse. Taylor was recently named as a finalist for CAALA’s Rising Star Award, and was awarded the 2018 CAOC Street Fighter of the Year Award for settling a school sex abuse case. Taylor discusses how she discovered her passion for representing victims of sexual abuse and how she has learned to be a better trial attorney from the senior attorneys who helped guide her throughout her career. More information about Taylor Rayfield can be found here: https://www.gbw.law/team/taylor-rayfield/

The former president of the CAOC discusses his first case, fresh out of law school, representing Cesar Chavez and the United Farm Workers Union for farm workers charged with strike violence.  Ray comments on his experience working with Chavez and how impactful the qualities Chavez possessed were to the United Farm Workers movement.  More information on Ray Boucher and his consumer law firm, Boucher LLP, can be found here:  http://www.boucher.la/

People v. Royal

Brian and Shant discuss the past recollection recorded exception to the hearsay rule and the elements that trigger the exception.  They court examined the time element and determined that too much time had expired from the event itself to the time the recollection was recorded.

McDermott Ranch v. Connolly Ranch

Brian and Shant discuss a case arising out of a property dispute stemming from a real estate transaction from 1958.  They unwrap a carved-out hearsay exception based on the statements being made in connection with the boundary of land of real property. 

Blizzard Energy v. Schaefers

Brian and Shant discuss the Sister State Money Judgment Act, taking a judgment from one state and enforcing it in another state.  The rule preserves the Res Judicata principle, in that once a matter is fully litigated, the parties are precluded from relitigating absent additional requirements. 

PG&E San Bruno Fire Cases

Brian and Shant discuss the allocation of attorney fees from the determination of a special master.  The agreement stated that the determination was not appealable but the language was introduced only once in the document leading to a dispute between the parties.

Cases this week:

Schaeffer v Califia Farms LLC (2nd DCA)

What Constitutes A False Statement in a False Advertising Case

Rincon EV Realty LLC v CP III Rincon Towers (1st DCA) 

Overlap Between Legal Claims and Equitable Claims

Walker v Fred Meyer Inc. (9th Circuit)

Disclosure Requirements under the Fair Credit Reporting Act

Campbell v Facebook (9th Circuit)

Overruling Objection to Settlement with Facebook.

Thimon v City of Newark (1st DCA) 

Road Design and the Standard for Summary Judgement

Alaniz v Sun Pac Shippers (2nd DCA)

The Privitte and Hooker Doctrine

Reeve v Meleyco (3rd DCA)

Enforceability of Referral Fees

Lopez v Ledesma (2nd DCA)

Medical Malpractice and the Standard for Applicability to Physician Assistants

Brian and guest host, Serena Vartazarian speak with Loyola law student and Kabateck LLP law clerk, Gary Partamian about COVID-19, its effect on his final semester as a law student.  Gary gives his impressions on the impact the pandemic has on the California Bar Exam, and what he’s doing to prepare for either postponement or an altogether cancellation until COVID-19 concerns have been further alleviated.  

Andy Speilberger – Partner at Balaban and Speilberger discuss his experiences ranging from the law of national treasures to fighting insurance companies.  Andy discusses his love for the movie Amadeus, his experiences traveling the world as the product of a military family, and how he and Daniel Balaban started their practice.  More information about Andy Speilberger and his team can be found here: http://balaban-spielberger.com/

Brian and Shant discuss the following cases:

Loeb v. County of San Diego: Plaintiff was in a county park campground and was injured on an uneven pathway.  The county argued Trail Immunity and the court focused on whether the pathway had a dual purpose.

Kim v. Laguna Seca Raceway: Plaintiff signed a release to ride his motorcycle at the raceway and was subsequently injured.  In a possible attempt to overcome the release, Plaintiff filed a motion for summary judgment for gross negligence.  The court looked to whether professional racing standards can be used as a factor in attaching liability. 

Rotkiske v. Klem: Klem obtained a default judgment on a collection against Rotkiske who claims he didn’t learn about it until he attempts to refinance his home.  Rotkiske raised the Discovery Rule and whether it applies after the statute of limitation of one year expired on Rotkiske’s action.  

Mutasas v. Happy Valley Copy Center: An intern of a conference center belonging to the Community of Christ Church claims sexual harassment from the director of the conference center.  The court looks to the Single Employer Doctrine and the integrated enterprises test to determine whether employment relationship exists. 

An esteemed trial attorney in the state, Bill’s practice focuses on personal injury and product liability.  Bill recollects one of his more memorable first trials where he was defensed but ultimately won on appeal and settled the matter favorably.  Bill associates a lot of his success to that case and how it taught him how to persevere through a difficult trial.  Bill encourages young lawyers to find their way into the courtroom in legal profession where trial experience is steadily decreasing.  More information about Bill Shapiro can be found here: https://wshapiro.com/

Brian and Shant discuss Unconscionability and the Unenforceability of Arbitration Agreements; the Inability to Arbitrate PAGA Claims; and Reviewing Arbitration Awards—Vacatur of Award

Dougherty v. Roseville Heritage (5th DCA)

Substantive Unconscionability and a Provision Limiting Elder Abuse Remedies in An Elder Abuse Case

Dennison v. Rosland Capital (2nd DCA)

How Lack of Mutuality is Unconscionable

Brooks v. AmeriHome Mortgage (6th DCA)

The Inability to Arbitrate PAGA Claims

VVA-Two LLC v. Impact Development Group (2nd DCA)

Reviewing Arbitration Awards and Vacatur

Wilson v. Huuuge Inc.

Brian and Shant discuss a class action based on a browsewrap arbitration agreement’s requirements.  Seemingly hidden, the consumer would have had to vigorously search through the website to find the agreement’s terms.  Accessibility to the terms dictate the determination of the outcome here.

Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc.

Brian and Shant discuss an additional named insurer added at the request of a named insurer to determine whether it can seek indemnification from the added party.  The added insurer argues that because the named original insurer denied coverage indemnification does not apply.

Barranco v. 3D systems Corp

Brian and Shant discuss the purchase agreement between two companies where one requested to introduce the prevailing arbitration award in their prior contract action.  The request was denied by the trial court and the appeals court reviewed the denial as an abuse of discretion and ultimately upheld trial court’s decision. 

Aloca Dos Vientos v. CalAtlantic Group, Inc. 2nd DCA

Brian and Shant discuss condominium associations and the arbitration agreements that are at issue in construction defect litigation.  Covenants Conditions & Restrictions require that if an action is brought against the builder it must be done through arbitration.  Generally, builders and HOAs have been granted a number of protections that must be considered prior to bringing an action.

Brian and Shant discuss Attorney Fees in Lemon Law Litigation; a Civil Rights Matter; an Elder Abuse Case; and in Class Actions.

Mikhaeilpoor v BMW of North America (2nd DCA)

Under Song-Beverly Attorney Fees are Mandatory for Prevailing Plaintiff Attorney

Vargas v Howell (9th Circuit)

A Civil Rights Matter Involving a Minor and An Unfavorable Ruling for Attorney Fees

Arace v Medico Investments (4th DCA)

An Elder Abuse Statute Requiring Mandatory Attorney Fees

In Re Optical Disk Drive Products (9th Circuit)

Fee Application Including a Handful of Attorney Teams with a Sealed Bid Containing a Cap on Fees

Today Brian and Shant discuss why businesses and corporate America tend to support conservative Supreme Court justices... spoiler alert: they don't care about social issues. While big businesses often take more progressive stances on hot-button social issues like abortion and gay rights, businesses nevertheless fund conservative agendas so they can ensure a legislature and judiciary who are going to take more “pro-business” stances on cases, whether they involve consumer protection, workers rights, or the enforcement of arbitration. 

Brian and Shant discuss some of the historical arc of pro-business decisions including the recent West Virginia v. Environmental Protection Agency in 2022 which limits the power the EPA has to regulate carbon emissions and the AT&T Mobility LLC v. Concepcion in 2011 which expanded the scope of the Federal Arbitration Act to say that companies could in fact include class action waivers in their arbitration agreements with employees and consumers, even if it is against state law. 

Hear how a conservative court isn’t always consistent on issues of State vs Federal law, often ruling in favor of reducing states rights when it comes to regulations on business but then shifting power back to the states when it comes to social issues or individual freedoms. 

Finally, hear their thoughts on why Democrats have had a difficult time with their political messaging and how they can turn things around in hopes of eventually shifting the court to be less packed with conservative leaning justices.  

Steve discusses his journey and determination to make it through law school and find success in his practice. Steve goes into great detail about one of the most influential cases of his career and how it helped shape his future practice.  More information about Steve Vartarzarian and his team’s work can be found here: http://thevlf.com/

Brian and Michael Childress sit down with Philip Camino of Camino Industries.  Philip owns and operates Fellow (www.fellow.la) among other hospitality venues in Los Angeles and nationally, including The Hudson, Earthbar, and Stout.  Philip shares his perspective on the hospitality industry pre and post-COVID, and looks to the future with a positive lens.  A person of immediate action, Philip wasted no time in making crucial business decisions to help preserve his restaurants and seek the assistance of an experienced team to help him address his business interruption concerns.

Brian Kabateck and Shant Karnikian discuss the current situation for law students with their guest, Michael Waterstone, Dean of Loyola Law School, Los Angeles.  Graduates of Loyola Law School themselves, Brian and Shant speak with the Dean on where law school and law practice is headed, the effects of the pandemic on teaching and students, and the outlook for jobs in the legal field for Loyola Law School graduates.  (hint: it's very good!)

For more information on Loyola Law School Los Angeles visit www.LLS.edu. To reach Dean Waterstone via email: Michael.waterstone@lls.edu.

To learn more about Kabateck LLP visit www.kbklawyers.com.

Casey is a second-generation Southern Californian and the first in his family to graduate from college.  A graduate of USC Gould School of Law and a partner at Aitken Aitken & Cohn, Casey’s practice is focused on single incident personal injury cases, elder abuse, professional medical malpractice, and insurance bad faith.  Casey is most passionate about his work in insurance bad faith and elder abuse.  Casey believes the biggest threat to plaintiff lawyers is the consideration of implementing AI in practice and having hedge funds come in to purchase law firms under the guise of access to justice.  Casey is also passionate about LGBT rights as a past president of the Orange County Lavender Bar Association which will be celebrating its 10-year anniversary in 2020.  More information on Casey Johnson and his practice can be found here: https://www.aitkenlaw.com/

What would happen if in the middle of a huge personal injury case, where there might be a huge recovery, the Plaintiff and their spouse decide to get divorced? What if a couple’s home burns down and in the middle of the lawsuit against the tortfeasor, they decide to call it quits as a couple? 

These are the fascinating intersections of family law and personal injury cases that we sometimes encounter. Brian and guest host Stephanie Charlin talk with Ronald Brot. Ron has been a respected family law attorney for over 30 years and is the immediate past president of the Los Angeles County Bar Association. 

We discuss what happens when you sign up a divorced couple as clients or when married clients split up in the middle of the case. Is the recovery still community property? What happens to the loss of consortium claim? Do you still work the case if they can’t agree to both be represented? What does “date of separation” really mean in family law? All these questions and more are answered. 

Contact Ronald Brot at brot@bgfllp.com or visit https://bgfllp.com/ 

Brian Kabatek: bsk@kbklawyers.com

Stephanie Charlin: sc@kbklawyers.com

For more information about Kabateck LLP, visit www.kbklawyers.com

Kabateck LLP presents Civil Action with California trial lawyers Brian and Shant. Join us as hosts Brian Kabateck and Shant Karnikian analyze legal issues and developments in California law affecting plaintiff lawyers and their practices. The show presents a summary of recent appellate decisions affecting all area of plaintiff-side civil litigation, from personal injury to employment, from landmark cases to changes in procedure. This weekly series keeps you informed on a variety of hot legal topics from throughout the state. This is Civil Action.

Brian and Shant discuss the application of SCOTUS’s ruling in Epic Systems in PAGA cases, requirements for an order denying class certification, Religious Organization Exemption in employment discrimination cases, relief under CCP 473b, the lack of requirement of special relationship in elder abuse cases, and deadlines for seeking removal of a case to federal court.