Torts

The FEHA does not protect a female employee against discrimination or harassment for undergoing oocyte (egg) retrieval procedures to donate eggs to others or freeze them for her own future use.  At least if those medical procedures are not needed to overcome infertility or some similar medical condition, they are not pregnancy or pregnancy-related, nor a disability and so are… Read More

Volokh’s conduct is not within the ambit of section 527.6’s definition of harassment. Volokh’s identification of Luo in a law review article and on his blog was not unlawful violence or a credible threat of violence. There was no evidence that Volokh stalked Luo, made harassing phone calls, or sent her harassing correspondence. Volokh’s writings served a legitimate purpose—a discussion… Read More

Explaining the ambiguities that can arise over the word "or" in a statute--does it mean A or B or both (inclusive) or A or B but not both (exclusive), this decision holds that a statute providing for vicarious liability of a general contractor for a sub's failure to comply with public works apprentice hiring requirements was inclusive so a showing… Read More

Manufacturers of drugs and medical devices owe a duty to warn physicians, as learned intermediaries, but not patients, of risks posed by their products.  This decision holds that when a manufacturer breaches the duty to warn, the patient must prove that the lack of warning caused the patient harm.  To prove causation, the patient need not show that the physician… Read More

Lyft driver suffered an unprovoked knife attack by a passenger, who, he later discovered that the passenger had a criminal history.  Held, Lyft does not owe its drivers a duty of care to run criminal background checks on passengers it offers to its drivers.  It would be too burdensome to run such checks on all passengers.  And the rare random… Read More

Unless it has actual knowledge of a vendor's employee's propensity to engage in such conduct, a regional center administering services for developmentally disabled persons does not owe a duty of care to the "consumer" of those services to protect the consumer from the vendor's employee's sexual assault and hence cannot be held liable for such an assault.  Even though the… Read More

In Kesner v. Superior Court (2016) 1 Cal.5th 1132, the Supreme Court held that an employer owes a duty of care to only the members of the employee's household to avoid secondary exposure to asbestos.  This decision holds that the same household limitation does not restrict a manufacturer's strict liability for design defects or failures to warn regarding its asbestos-containing… Read More

This decision affirms a judgment for the plaintiff in an age discrimination and harassment case, rejecting all of the employer's many arguments.  First, the suit was timely even though the harassment had been on-going for many years.  There was no showing that the harassment had achieved "permanence" so as to prevent continued accrual from renewed harassment.  Permanence comes from employer… Read More

Disagreeing with Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835 and following Ruiz v. Podolsky (2010) 50 Cal.4th 838, this decision holds that a medical provider's arbitration provision that complies with CCP 1295 requires the patient's survivors (who didn't sign the arbitration clause) to arbitrate their wrongful death claim based on negligent acts of a health care… Read More

The wife of a candidate for a state assembly seat was not a limited public figure merely by being married to a candidate for public office.  Here, the only evidence of the wife's involvement in her husband's campaign was were marching with her husband, carrying a campaign sign, during the Vietnamese-American community's annual Lunar New Year parade.  That minimal involvement… Read More

Rule 10b-5 proscribes untrue statements of a material fact or omissions to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.  This decision holds that "pure omissions" do not violate the regulation.  A pure omission occurs when a speaker says nothing, in circumstances that… Read More

Plaintiff, a guest in defendant's hotel, fell and hurt herself when the handheld shower head came apart in her hand.  This decision affirms a summary judgment for defendant because (a) plaintiff failed to raise a triable issue of fact as to whether defendant had actually knew or had reason to suspect that the shower head was defective or dangerous and… Read More

This decision holds that a judge's denial of a motion for acquittal under Pen. Code 1118.1 in a criminal prosecution of the later plaintiff suing for malicious prosecution is sufficient to invoke the interim adverse decision rule, barring the required finding of lack of probable cause, without which the malicious prosecution action cannot succeed.  The opinion also Cel-Tech's tethering test… Read More

An action to rescind a contract for fraud is an action on the contract for purposes of Civil Code 1717.  Section 1717 is not limited to actions for breach of contract or seeking to enforce the contract.  A party is entitled to attorney fees under section 1717 even when the party prevails on grounds the contract is inapplicable, invalid, unenforceable… Read More

Proposition 244, the California Privacy Rights Act of 2020, clearly mandated that the new privacy agency had to promulgate regulations in 15 areas by July 1, 2022.  It also provided that the agency could begin enforcing the Act on July 1, 2023.  The agency didn't promulgate final regulations until 9 months after the deadline.  This decision holds that the trial… Read More

Under W&I Code 15657.03, a court may issue a restraining order to prevent abuse of an elder. An elder abuse protective order “may issue on the basis of evidence of past abuse, without any particularized showing that the wrongful acts will be continued or repeated.  (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137.) There was substantial evidence to support issuance… Read More

Plaintiff leased greenhouses from defendant.  Defendant did not disclose that the greenhouses contained asbestos and other hazardous substances.  The jury awarded plaintiff damages on theories of negligence and premises liability.  This decision holds that there was substantial evidence to support the verdicts despite the lease's indemnification and limitation of liability clauses.  The indemnification clause did not apply if the landlord… Read More

A regional center for the developmentally disabled does not owe a duty of care to employees of residential facilities to which the regional center assigns mentally or developmentally disabled individuals for residence to protect the employees from injury by the assigned disabled persons.  Generally, there is no duty to protect against harm by third parties absent a special relationship.  The… Read More

Ordinarily, an employer is not liable for injuries an employee suffers on the way to or from work.  However, under the premises line rule, the commute ends and the employee becomes entitled to Workers Compensation benefits for injury suffered once the employee has entered the employer's premises.  Here, the court held that plaintiff, a UC Irvine employee, had not yet… Read More

The doctrine of primary assumption of the risk bars liability for injuries caused by a negligent surfer to a fellow surfer because those injuries were caused by risks inherent in the sport of surfing.  Wipe-outs are common as are injuries from collisions with other surfers or their surf boards.  Surfers often violate unwritten rules of etiquette governing surfing and surf… Read More