1
2016 Year In Review
2
Immigration Status No Longer Discoverable in Personal Injury Cases
3
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
4
The Ongoing Debate Concerning Automobile Service Advisors’ Rights to Overtime Wages
5
Proof or It Did Not Happen: California Court of Appeal Rules on Electronic Signature Authentication
6
Pokémon Go: Green Light for Future Litigation
7
UPDATE – McMillin Albany LLC v. Superior Court
8
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
9
UPDATE – Court Rejects Uber’s Proposed $100 Million Settlement
10
Courts of Appeal are Reining in Ambiguous Settlement Offers

2016 Year In Review

February  1, 2017

Dear Clients, Colleagues, and Friends:

With 2017 now upon us, we invite you in joining us to briefly reflect on our accomplishments last year. In 2016, our attorneys and professional staff worked enthusiastically and tirelessly to represent our clients in challenging and complex matters, and to help our clients secure favorable resolution in often highly contentious and complex litigation. Our dedicated attorneys continued to achieve excellent results in trials, mediations, and arbitrations, and disposed of numerous actions against our clients through successful and aggressive law and motion practice. We were also pleased to assist our clients and provide counsel in transactional, family law, and employment matters. We are thrilled to share a sampling below of some of the Firm’s highlights for 2016.

Many of our talented attorneys were again named Super Lawyers, including Arthur Chapman, Richard Glucksman, Randall Dean, Craig Roeb, and Glenn Barger. Richard Glucksman was presented with the prestigious 2016 Legend of an Era Award at the annual West Coast Casualty Construction Defect Seminar. Glenn Barger served as President of the Association of Southern California Defense Counsel (ASCDC), the largest association of defense attorneys in the United States. Lauren Kadish became a Board Member of ASCDC while continuing to serve as co-chair of ASCDC’s Young Lawyers Committee. Ashley Verdon, Lauren Kadish, and Ravi Mehta were named 2016 Southern California Rising Stars by Super Lawyers.

CGDRB also continued to grow in 2016. We welcomed to the Firm our newest associate of the California State Bar, Katherine Frank, a 2016 graduate of Loyola Law School, who is a licensed CPA with an LL.M. in tax law. We were delighted that Zachary Marks welcomed a new addition to his family, Riley Leah Marks.

CGDRB’s attorneys continued to provide hundreds of hours of charitable and pro bono services to many areas of the legal community, including providing indigent foster parents with free counsel and representation in adoption proceedings for the Alliance for Children’s Rights, serving as volunteer judges pro tem for the Los Angeles and Ventura County Superior courts, and continuing support of the Western Justice Center, the Children’s Bureau of Southern California, and the Alzheimer’s Foundation of America.

We again hosted our Distinguished Speaker Series, which features legal scholars, superior court judges, appellate justices, civic and government leaders, and leading members of the extended legal community. In 2016, CGDRB hosted Nick Cammarota, General Counsel for the California Building Industry Association (CBIA), Michael E. Waterstone, Dean of Loyola Law School, and Erwin Chemerinsky, Dean of the University of California, Irvine School of Law. Recent distinguished speakers include United States Congressman Henry Waxman, California Assemblyperson Matt Dabaneh, Los Angeles County District Attorney Jackie Lacey, Second District Court of Appeal Justice Victoria Chaney, Los Angeles County Sherriff Jim McDonnell, and numerous trial judges of our local courts. CGDRB also sponsored the 2016 CLM National Construction Claims Conference.

It has been an honor and privilege to work for you, our very loyal and longstanding clients. We appreciate your continued confidence in CGDRB, and we look forward to working with you in the years to come. Our best to you in 2017.

Key Highlights In 2016

Richard Glucksman, Jon Turigliatto, John Brazier, Gina Felland, and Teresa Ortega-Smith completed a five (5) month binding arbitration involving a $50 million complex/multi-party construction defect matter brought by a leading land developer against a substantial multi-state general contractor. The CGDRB defense team successfully defeated all pre-hearing challenges and seven motions for judgment/directed verdict after the conclusion of the presentation of evidence. Although a final award has not yet been entered, the claimant’s recovery will be limited to a fraction of the amount originally sought in damages and fees.

Glenn Barger and Dominic Fote represented the general contractor in a three-month jury trial in Sacramento Superior Court in a highly contentious multi-party fraud case arising from the construction of a hotel and casino. The damage claims exceeded $40 million. Following vigorously successful trial work, a favorable settlement was achieved prior to verdict, to our client’s satisfaction.

Craig Roeb and Aneta Dubow completed a complex three-week jury trial in San Bernardino Superior Court. The defense trial team was assisted by CGDRB law clerk, Katherine Frank, CPA, LL.M., who was admitted to the California State Bar following the successful verdict. The case involved multiple claims including traumatic brain injury, memory/cognitive deficits, pre-onset dementia, neuro-spinal injury, tinnitus and related injury claims arising from a 45-mph rear-end collision by defendants’ tractor- trailer into plaintiff’s truck. Our clients stipulated to liability to focus the jury on plaintiff’s questionable injury claims, and multi-million dollar damage contentions.

Before trial, the plaintiff made settlement demands, including $30 million prior to trial. Plaintiff sought in excess of $35+ million during trial and $50+ million in closing argument. After deliberating less than two days, the jury returned a reasonable verdict of less than $2 million, a minimal fraction of plaintiff’s demands.

Randal Dean and Ashley Verdon won a significant case-dispositive motion in an accountant malpractice case, arising from the alleged failure of the accountants to procure sufficient excess uninsured and underinsured insurance coverage for the plaintiffs. The court granted summary judgment as to one plaintiff and summary adjudication as to the other plaintiff, confirming our arguments that the claims were barred by the statute of limitations. Following these successful rulings, the remaining plaintiff dismissed her claims against our clients, disposing of the action in its entirety.

Glenn Barger and Lauren Kadish prevailed on an Anti-SLAPP motion in a legal malpractice action, striking the plaintiff’s cause of action against our client for intentional interference with prospective economic advantage on the grounds that the activity of litigating an attorney lien claim is protected activity under California’s Anti- SLAPP statute.

Craig Roeb and David Napper won a challenging and aggressively opposed motion for summary judgment, in a high- profile negligence action brought by plaintiff and former supermodel, Janice Dickinson.

David Napper secured a dismissal for a target contractor in a construction defect suit involving a well-known Beverly Hills fashion company. The dismissal extricated the client from a potentially high exposure case without any contribution whatsoever on behalf of the client.

Craig Roeb and Zachary Marks won a motion for summary judgment in a complicated negligence/premises liability case. They demonstrated that the client, a third-party vendor who installed a Christmas display, owed no duty to the plaintiff to protect against an open and obvious condition in the display. The plaintiff attempted to raise a triable issue of fact of claimed “readily-available means” to make the premises safer. Following aggressive briefing and lengthy oral argument, the Court concluded in favor of our client, and granted full summary disposition of all causes of action against our client.

Randall Dean, Andrew Wright, and Ashley Verdon won a significant summary judgment motion in an action involving claims of professional negligence, breach of fiduciary duty and fraud against the former accountants and business managers of a prominent screenwriter and television producer. The case was on appeal for almost two years following a dispositive demurrer in our clients’ favor, and was reversed based on a factual issue regarding application of the statute of limitations. Back before the trial court and no longer limited to the four corners of the operative complaint, the CGDRB defense team brought a motion for summary judgment, and demonstrated to the satisfaction of the Court that the statute of limitations applied, successfully disposing the action in its entirety.

Following their successful ruling on an Anti-SLAPP motion, which disposed of a malicious prosecution action against our attorney client, Glenn Barger and Ashley Verdon obtained a substantial attorneys’ fees award for all fees and costs incurred in connection with their Anti-SLAPP motion. The motion concerned highly complex statutory interpretation and case law analysis, as it involved a statute of limitations defense subject to a split of authority in California decisional law, and was also governed by new California Supreme Court case law published shortly before the filing of the reply brief.

Arthur Chapman and Lauren Kadish prevailed on a motion for summary judgment in a slander lawsuit filed against a prominent individual in the boxing industry. The Court agreed with the arguments set forth by the defense that the alleged statements were constitutionally protected statements of opinion, and not actionable as a matter of law.

Arthur Chapman and David Weinberger achieved dismissal following the filing of a demurrer based on statutory protections afforded under California law to furnishers of alcoholic beverages to consumers. The case involved a wrongful death action filed by the family of a driver killed by an intoxicated driver.

Randall Dean and Catherine Kelly prevailed on a highly contested demurrer to the plaintiff’s third amended complaint on behalf of our client in a professional liability case, alleging negligence against the accounting firm, which resulted in our client obtaining a dismissal.

Craig Roeb and Zachary Marks secured dismissal of an auto dealership client in a complicated product liability case. The plaintiff purchased a vehicle from the client in Arizona, but filed her lawsuit in California. A motion to quash was brought asserting no personal jurisdiction for the plaintiff to sue our client in California, and that the action violated our client’s due process rights. After the motion was filed and before it was heard, the plaintiff agreed to dismiss our client from the case, resulting in an early and economical successful result for our Arizona- based client.

Mark DiMaria successfully obtained a judgment in favor of our client after leading a successful attack on the second amended complaint. When the plaintiff appealed the decision, Mark handled the matter at the appeal level and persuaded the appellate court to affirm the trial court’s ruling. Law360 featured the case after the Court of Appeal issued its ruling.

After filing a comprehensive motion for summary judgment on behalf of our client in a class-action lawsuit alleging bad faith insurance practices, Arthur Chapman and Catherine Kelly obtained a dismissal with prejudice in exchange for a waiver of costs.

Craig Roeb and David Napper obtained a dismissal in a significant products liability case involving a fire emanating from an engine hydraulic line that engulfed the plaintiff and resulted in extensive burn injuries. Craig and David successfully won a dismissal without any contribution by or on behalf of the client, after persuading the plaintiff that the incident lacked any causal connection to our client or its activities.

Craig Roeb, Jon Turigliatto and Ravi Mehta successfully opposed a motion to continue trial in a negligence/products liability matter in which the plaintiff, who was not a legal resident of the United States, sought to move the trial date into 2017 in order to take advantage of a change in law that precludes evidence of a plaintiff’s residency status at trial. If successful, the plaintiff would have been allowed to seek lost future earnings based on wages in the United States versus his country of origin, which would have effectively increased the damages into the seven-figure range. The matter favorably resolved for our client shortly after the Court adopted our position, and rejected the plaintiff’s effort to continue trial into 2017.

Arthur Chapman and David Weinberger successfully resolved a contentious, complex, and complicated asbestos and wrongful death action filed by the family of a deceased mother. The plaintiffs served a CCP §998 offer of $800,000. During pre-trial motions, the case settled for a nominal amount compared to the Plaintiff’s §998 offer.

Craig Roeb and Marsha Kempson won a significant motion effectively forcing the plaintiff to produce medical records that contained information detrimental to her case. As a result, the matter settled shortly thereafter for a nominal amount compared to initial demand.

Richard Glucksman and Ravi Mehta obtained a favorable settlement following their creative efforts and were successful in obtaining recovery of attorney fees/costs from an insurance broker. Richard and Ravi contended that the insurance broker’s failure to obtain the correct insurance coverage by issuing a certificate of insurance referencing a residential project, when the commercial general liability policy contained a residential work exclusion entitled the builder client to recovery of its attorney fees/costs in defending the underlying action.

Daniel Cribbs, John Brazier, Chelsea Zwart, and Katherine Frank achieved a favorable settlement in a highly contentious complex lawsuit arising from an underlying arbitration, in which the plaintiff was found to have fraudulently misrepresented the condition of a single-family home that was featured in Architectural Digest. The CGDRB team lead a vigorous defense that included successfully demurring to the plaintiff’s claim for recovery based on the plaintiff’s inability to recover damages arising from his own willful misconduct/sole negligence, and later, a motion for summary judgment regarding the plaintiff’s triggering of the four-year statute of limitations for patent defects.

While successful at the trial court level, the motion rulings were later reversed on appeal. Back before the trial court, the team continued its aggressive defense of the case, which included bringing several motions to dismiss, including plaintiff’s failure to bring the action to trial within the five-years of case inception. The aggressive motion practice successfully postured the case for a defense verdict on multiple grounds, and was instrumental in achieving an extremely favorable resolution on behalf of our client.

Glenn Barger and David Weinberger successfully won the dismissal without contribution of our client in a medical malpractice action, following the revelation of critical information in pathology tests and aggressive negotiation with the plaintiff’s counsel.

Firm Notables

Glenn Barger served as President of ASCDC, and on the Executive Board of the California Defense Counsel. He also served on the Speakers and Topics Committee for West Coast Casualty’s Annual Seminar, and on the Los Angeles County Bar Association’s Executive Committee for Litigation.
Glenn co-chaired the annual CDCMA/ASCDC Construction Seminar, and spoke at the Perrin National Construction Seminar in Fort Lauderdale, Florida on Right to Repair Legislation across the nation. He spoke at the California plaintiffs’ bar, Consumer Attorneys of California’s annual seminar in Las Vegas, where he provided the defense perspective of general damages from discovery through trial in bodily injury matters.

Glenn provided an update on recent developments and emerging trends in construction litigation at a private three-day seminar in Napa, California on behalf of the underwriting department of a major insurance carrier to the Risk Managers for its largest insureds. He also organized and hosted the first annual Litigation Summit with the Los Angeles Superior Court judges and the plaintiffs’ bar. The event’s focus was on civility and ethics in civil litigation, and will now become an annual seminar in Southern California.

On behalf of the civil defense bars, Glenn was in select company when he met with California Chief Justice Cantil Sakauye, to discuss and solidify the defense bar’s relationship with the bench and the Judicial Council, to protect the interests of defense attorneys and our clients in California. He also spoke to the Los Angeles City Council during an open, televised session, along with other leading plaintiff and defense attorneys and mediators on the benefits of alternative dispute resolution.

Dominic Fote developed a new client relationship which expanded the firm’s existing practice areas to include the handling of high demand matters prior to litigation. Teresa Ortega Smith, Brian Kahn, and Chelsea Zwart work with Dominic in handling these matters.

Richard Glucksman was a featured speaker at the Inaugural Construction Defect Claims and Litigation Strategies ExecuSummit, convened in Connecticut.

Heather Patrick expanded the Firm’s practice to include a new Family Law Practice Group, which is dedicated to providing family law clients with thorough management of complex family law matters, while simultaneously ensuring dedicated and compassionate counsel to clients. The family law practice offers a wide array of family law services, including divorce and complex property division, spousal and child support, complex child custody (including move- away orders), premarital and postmarital agreements, as well as post-divorce and support modifications.

Ashley Verdon and David Napper became co-editors-in-chief of the Firm’s monthly Newsletter “In Focus,” editing and publishing articles regarding important legal topics, developments, and trends in all of CGDRB’s varied practice areas of law.

Glenn Barger, Gregory Sabo, and Lauren Kadish hosted and presented to executive claims personnel an overview of recent key California decisions on employment law, including claims for disability discrimination, failure to accommodate, sexual harassment, recovery of attorneys’ fees, and statutory CCP §998 offers to compromise in the employment context.

John Brazier published an article in Los Angeles Lawyer Magazine, entitled “The Effects of Brisbane on the Construction Defects Statutes of Limitations.”

John Brazier and Katherine Frank published an article in the Los Angeles Daily Journal, entitled “Hearsay, the Experts Say.”

Thomas Halliwell spoke at the 2016 West Coast Casualty Annual Construction Defect Seminar about recent appellate decisions.

Arthur Chapman and Randall Dean continue as prominent members of ABOTA, the American Board of Trial Lawyers. Art holds the prestigious membership level of “Advocate,” reflecting his 40 years of experience as lead trial counsel in innumerable jury trials and arbitrations. He continues to represent celebrities and other parties in high-profile disputes, business matters and catastrophic injury cases.

Gregory Sabo successfully resolved a number of class action matters in both consumer and employment cases, and continues his representation of individuals and companies in large multi-party employment matters and business claims. He continues his successful representation of defendants in complex high exposure matters with an additional emphasis in defending physicians and attorneys in respective malpractice claims and actions.

Craig Roeb and Chelsea Zwart published an article in the Los Angeles Daily Journal, entitled “’I Object!’ Possibly Not. Learn New Rules for Evidentiary Objections.”

Ravi Mehta published an article in the Construction Defect Journal, entitled “Significant Victory for The Building Industry: Liberty Mutual is Rejected Once Again.”

Richard Glucksman presented at the highly respected symposium for the Clear Law Institute on “Green Construction Fundamentals: An Overview of Common Legal Pitfalls and a Discussion of Best Practices.”

Richard Glucksman, David Napper, and Chelsea Zwart submitted to the California Supreme Court an amicus curiae letter brief on behalf of California Building Industry Association (CBIA) in support of a petition for review regarding LSREF2 Clover Property 4 LLC v. Festival Fund 1, LP, Supreme Court Case No.: S238394. The case presents important questions of law that substantially and directly affect commercial lending practices in California, impacting California’s construction industry and revival of the State’s economy.

Heather Patrick continued as lead trial counsel in pro bono family law matters, including issues of support, property division, and breach of fiduciary duty.

Lauren Kadish spoke on a panel at ASCDC’s 55th Annual Seminar on “Written Discovery: The Nuts and Bolts,” covering topics of key objections and privilege logs, meet and confer efforts, protective orders, and third party subpoenas, including out of state and out of country subpoenas. She also presented a webinar entitled “Key Considerations When Drafting Employment Arbitration Clauses in California and Beyond” through The Center for Competitive Management (C4CM). Lauren also organized the ASCDC Billing Seminar and panel presentation regarding useful suggestions and tips for effectively capturing billing time, acceptable billing procedures, engagement letters, fee arrangements, ways to avoid and resolve disputes over recovery of fees, and how to recover fees via motions as a prevailing party.

Ronald Van continued to expand his successful representation of state-wide merchant builders in complex litigation matters.

Brian Kahn co-chaired the 2016 ASCDC Annual Construction Defect Seminar. Brian also continued his role as co-author of the Thomson Reuters Treatise on Torts and served as President of the Leonis Adobe Museum. Additionally, Brian presented at the 2016 CLM National Construction Claims Conference on “Decisions, Decisions, Decisions. How Plaintiff’s Decisions in Picking and Choosing the Products and Issues to Pursue Impacts Litigation.” He also presented at West Coast Casualty’s 23rd Annual Construction Defect Seminar on “Walking a Tightrope without a Net: Successful Case Handling while Balancing the Needs of Carriers, the Insured, and In-House Counsel.”

Catherine Kelly provided consulting advice for pilot episodes of legal television programs for ABC and NBC/Universal Television based on her extensive courtroom and trial experience. She was also appointed Chair of the Development Committee for the School Board of St. Mark School in Venice, California.

James Murphy acted as lead counsel on several complex construction defect matters involving claims exceeding $50 million, involving buildings at a university campus, a global foods manufacturer, and global hotel chains.

Richard Glucksman, Glenn Barger and Chelsea Zwart prepared and published CGDRB’s Annual National Construction Risk Management Handbook.

Craig Roeb and Chelsea Zwart provided pro bono legal services on behalf of indigent foster families via the Alliance for Children’s Rights.

Richard Glucksman and Chelsea Zwart published an article for The Edge, a national Newsletter published by AmWins.

Richard H. Glucksman authored articles for The Edge on topics including the following: National Overview on Right to Repair, OSHA, and Statute of Limitations.

J. Andrew Wright presented an eight- hour Continuing Legal Education course for the CalCPA Education Foundation on “Avoiding Tax Malpractice.” He also spoke at the ASCDC Litigation Conference in San Diego on the topic of CPA Engagement Agreements and Professional Liability.

Gina Felland continued her representation of multi-state general in numerous complex contractors construction matters.

Brian Kahn was interviewed on television newscasts about technical matters involving consumer electronics including trends, Ultra High Definition/4K TV, and electronic privacy issues. His interviews were aired nationally on syndicated network newscasts.

Craig Roeb and Heather Patrick published an article in the Los Angeles Daily Journal, entitled “Courts of Appeal Reining in Ambiguous Settlement Offers.”

Craig Roeb continues to serve monthly as a volunteer Judge Pro Tem for the Los Angeles and Ventura County Superior Courts.

Jon Turigliatto, Brian Kahn, and David Napper will present and serve as lead panelists on separate topics at the 2017 West Coast Casualty Annual Construction Defect Seminar.

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

 

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