1
Immigration Status No Longer Discoverable in Personal Injury Cases
2
Significant Victory for the Building Industry: Liberty Mutual is Rejected Once Again, This Time by the Third Appellate District in Holding SB800 is the Exclusive Remedy
3
The Ongoing Debate Concerning Automobile Service Advisors’ Rights to Overtime Wages
4
Proof or It Did Not Happen: California Court of Appeal Rules on Electronic Signature Authentication
5
Pokémon Go: Green Light for Future Litigation
6
UPDATE – McMillin Albany LLC v. Superior Court
7
Failure to Maintain Equipment “Integrally Related” to Medical Diagnosis or Treatment Resulting in an Injury is Professional Negligence Under MICRA and Therefore Subject to a One Year Statute of Limitations
8
UPDATE – Court Rejects Uber’s Proposed $100 Million Settlement
9
Courts of Appeal are Reining in Ambiguous Settlement Offers
10
Complex Civil Litigation Program and its Expansion to San Bernardino County

Immigration Status No Longer Discoverable in Personal Injury Cases

By: Jon A. Turigliatto, Esq. and Chelsea L. Zwart, Esq.
December 9, 2016

NEW CALIFORNIA EVIDENCE CODE SECTION 351.2 PROHIBITS DISCOVERY AND ADMISSIBILITY OF A PERSON’S IMMIGRATION STATUS FOR PURPOSES OF LIMITING DAMAGE CLAIMS.

On January 1, 2017, AB 2159, which prohibits discovery related to a person’s immigration status in personal injury and wrongful death actions, will become effective, adding Section 351.2 to the California Evidence Code and overturning Rodriguez v. Kline (1986) 186 Cal.App.3d 1146.

Under Rodriguez v. Kline, an individual injured in the United States who is subject to deportation is not entitled to compensation based upon his or her projected earning capacity in the United States, but rather may only recovery damages for lost future income the individual would have earned in his or her country of origin. Later case law applied Rodriguez v. Kline to the recovery of medical costs, limiting recovery by an undocumented person to the amount the individual would have incurred for medical treatment in his or her country of origin.

Newly introduced Evidence Code Section 351.2 states:

(a) In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.

(b) This section does not affect the standards of relevance, admissibility, or discovery prescribed by Section 3339 of the Civil Code, Section 7285 of the Government Code, Section 24000 of the Health and Safety Code, and Section 1171.5 of the Labor Code.

Proponents of Section 351.2, which effectively invalidates Rodriguez v. Kline, assert that the rationale behind the new law is to ensure that personal injury and wrongful death victims are not penalized for their immigration status and to protect undocumented immigrants from being exploited.  The intent is to equalize compensation received by persons who work and live in California and thus should be entitled to equal treatment in the California court system, regardless of immigration status.

By prohibiting the discovery and admissibility of a plaintiff’s immigration status, the new code section will have a severe impact on defendants’ potential exposure for damages relating to lost income and medical expenses.  After January 1, 2017, an undocumented person’s loss of earnings claim will no longer be limited to wages earned in his or her country of origin, but will rather be based on the individual’s income in the United States, whether here legally or not.  The same will be true for medical expenses, which will be based on those actually incurred.

Historically, many undocumented plaintiffs did not pursue loss of earnings claims as defendants regularly pointed to immigration status as a way to significantly lower potential exposure for such claims. Given that earnings and medical costs are generally substantially higher in the United States than in countries from which people immigrate without documentation, the enactment of Evidence Code Section 351.2 will deliberately result in larger awards for loss of income and medical expenses to injured immigrants.

Significant Victory for the Building Industry: Liberty Mutual is Rejected Once Again, This Time by the Third Appellate District in Holding SB800 is the Exclusive Remedy

By: Richard H. Glucksman and Ravi R. Mehta
December 8, 2016

I. Elliott Homes, Inc. v. Superior Court (Certified for Publication, Cal. Ct. App. Dec. 2, 2016

The California Court of Appeal for the Third Appellate District recently elaborated on the scope of the Right to Repair Act, commonly known as SB-800 (“Act”).  In Elliott Homes, Inc. v. Superior Court of Sacramento County (Kevin Hicks, et al.) (certified for publication, Cal. Ct. App. Dec. 2, 2016), the Court considered whether the Act (and specifically the Act’s pre-litigation procedure) applies, when homeowners  plead construction defect claims based only on common law causes of action, as opposed to violations of the building standards set forth in the Act (Civil Code §896).  The Court answered this question affirmatively.

The homeowners of seventeen (17) single-family homes filed a Complaint against the builder of their homes, Elliott Homes, Inc. (“Elliott”), alleging common law causes of action for construction defects.  Elliott filed a motion to stay the litigation on the ground that the homeowners failed to comply with the pre-litigation procedure set forth in the Act.  The trial court denied the motion, agreeing with the homeowners that this pre-litigation procedure did not apply because the homeowners had not alleged a statutory violation of the Act.  Elliott appealed.  The Court of Appeal purely considered the question of whether the Act, including its pre-litigation procedure, applies when a homeowner pleads construction defect claims based on common law causes of action, and not on statutory violations of the Act’s building standards.

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The Ongoing Debate Concerning Automobile Service Advisors’ Rights to Overtime Wages

By: David A. Napper and Alexandra R. Rambis
September 30, 2016

Are automobile service agents exempt from the Fair Labor Standard Act’s (“FLSA”) overtime requirements? Although the United States Supreme Court has remanded the case back to the Ninth Circuit to interpret the statute without deference to the Department of Labor’s decision, one thing is certain now: the answer will have significant implications for automobile dealerships.

In Navarro v. Encino Motorcars, LLC (2016) 136 S. Ct. 2117, service advisors brought an action against the automobile dealership where they were employed, alleging that their employer was required by the FLSA to pay them overtime wages. The dealership argued that the position and duties of a service advisor brought the plaintiffs within an exemption to the FLSA provisions, which exempts employees engaged in selling or servicing automobiles from overtime wages. Indeed, the FLSA exemption, codified as 29 U.S.C. §213(b)(10)(A), exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.”

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Proof or It Did Not Happen: California Court of Appeal Rules on Electronic Signature Authentication

By: Ashley Verdon and Neil Eddington
September 30, 2016

If you belong to one of the ever-increasing number of businesses using electronic signatures, then it might be time to review your authentication security procedures in place.   As electronic signatures become the norm in conducting business, California courts are busy with cases challenging their enforceability.  Recently, in Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, the Second District Court of Appeal ruled that an employer sufficiently authenticated an employee’s electronic signature to an arbitration agreement.  In doing so, the court offered some clarity as to what evidence is necessary to enforce an electronic signature under the Uniform Electronic Transmissions Act (“UETA”).  (Cal. Civ. Code §1633.)

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Pokémon Go: Green Light for Future Litigation

By: Zachary P. Marks
September 30, 2016

Though it debuted to the public just two months ago, Pokémon Go, the latest gaming craze to sweep the nation, broke mobile app download records within one week of its release and achieved more daily active users than any other game on the market.  The game allows users to see animated creatures, known as Pokémon, on their cell phones while the user traverses the real world, with the goal being to “catch” as many Pokémon as possible.  The viral phenomena has already led to numerous claims and violations across the nation, with some bizarre examples to include the following:

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UPDATE – McMillin Albany LLC v. Superior Court

By: Richard H Glucksman and David A. Napper                                     September 30, 2016

The matter has been fully briefed and the construction industry is one step closer to receiving the California Supreme Court’s highly anticipated decision regarding McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132.  The Supreme Court will address the split of authority presented by the Fifth Appellate District Court’s holding in McMillin Albany, which outright rejected the Fourth Appellate District Court’s holding in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98.  The issue is whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2013.  Oral argument is still pending, and CGDRB will continue to closely monitor the progress of this case.  Stay tuned.

Failure to Maintain Equipment “Integrally Related” to Medical Diagnosis or Treatment Resulting in an Injury is Professional Negligence Under MICRA and Therefore Subject to a One Year Statute of Limitations

By: Kacey R. Riccomini
September 30, 2016

Recently, in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, the California Supreme Court clarified whether and when the general negligence statute of limitations or, alternatively, the Medical Injury Compensation Reform Act’s (“MICRA”) special statute of limitations, applies to health care providers. Generally, a two-year statute of limitations for general negligence applies to personal injury actions. (Code Civ. Proc. §335.1.) However, under MICRA, claims for professional negligence against health care providers must be brought within the earlier of (1) “three years after the date of injury,” or (2) “one year after the plaintiff discovers, or…should have discovered, the injury.”  (Code Civ. Proc. §340.5.)

In Flores, the plaintiff was injured when one of the rails on her hospital bed collapsed. The rail had been raised per the doctor’s orders following a medical assessment of her condition. Almost two years later, Flores sued the hospital, claiming that it negligently failed to inspect and maintain the equipment. The hospital, Presbyterian Intercommunity Hospital (“PIH”), sought to dismiss the claim by way of a demurrer, arguing that the claim was barred by §340.5’s one-year statute of limitations since Flores knew about her injury when she fell out of her hospital bed over a year before filing suit. Flores, on the other hand, argued that PIH’s conduct was ordinary negligence, subject to the two-year statute of limitations under §335.1. The trial court agreed with PIH, and sustained the demurrer without leave to amend.

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UPDATE – Court Rejects Uber’s Proposed $100 Million Settlement

By: Chelsea L. Zwart
September 30, 2016

In May 2016, Chapman Glucksman Dean Roeb & Barger published an article entitled, “$100 Million Uber Settlement Maintains Classification of Drivers as Independent Contractors,” which discussed a potential $100 million settlement related to a class-action reclassification suit against the on-demand driver service, Uber, brought on behalf of its drivers.  The settlement, if approved by the Court, would maintain classification of the drivers as independent contractors rather than employees, resulting in significant future savings to Uber.

The plaintiffs and the California Labor and Workforce Development Agency estimated that the Private Attorneys General Act (“PAGA”) portion of the class action could result in civil penalties of over $1 billion for violations of the California Labor Code.  However, the proposed settlement only allocated approximately $1 million to the PAGA claim. On August 18, 2016, Judge Edward Chen of the United States District Court for the Northern District of California issued an order rejecting the proposed settlement, stating that it “is not fair, adequate, and reasonable,” particularly given that the proposed settlement of the PAGA claim was only “.1% of its estimated full worth.”

Judge Chen commented that he expects his order to be appealed, and thus we will continue to monitor the case and provide updates as developments unfold.

Courts of Appeal are Reining in Ambiguous Settlement Offers

By: Craig A. Roeb and Heather M. Patrick
Published by the Daily Journal

California Code of Civil Procedure Section 998 establishes a procedure to shift costs if a party fails to accept a reasonable pre-trial settlement offer. The statute has generally been considered an effective tool to force parties’ hands to settle by encouraging resolution and avoiding needless litigation and trials.  Barba v. Perez, 166 Cal. App. 4th (2008).  However, recent case law demonstrates that they must be carefully planned and composed, or else risk judicial nullification.  Download Full Article

 

Complex Civil Litigation Program and its Expansion to San Bernardino County

By: Richard H. Glucksman and David A. Napper
September 30, 2016

Complex Civil Litigation Programs have been utilized in California for over fifteen (15) years. Complex cases require more intensive judicial management, and include claims such as construction defects, mass torts, class actions, antitrust, securities claims, and toxic torts. The Presiding Judge in a department dedicated to managing highly complex cases is tasked with providing exceptional and individualized judicial management, expedited resolution of complex issues, and cost and resource efficiencies.

The creation of the department is the result of increased levels of funding received by the Court.  With its creation of a Complex Civil Court system, San Bernardino joins numerous other counties throughout California – including, but not limited to: Alameda, Contra Costa, Los Angeles, Orange, Riverside, San Francisco, and Santa Clara – which already handle complex civil matters.  San Bernardino Superior Court is the most recent Court to implement a Complex Litigation Department, effective September 6, 2016.

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