Professional football players failed to allege a viable negligence claim against the NFL on a theory of negligence per se in distributing prescription pain killers and other drugs to enable injured players to continue competing. The complaint did not allege facts showing that the NFL directly or indirectly supplied players with drugs or coordinated activities of clubs to do so,… Read More
Shloss was Cohen's attorney in a disability discrimination suit Cohen brought against Golden State when one of its delivery drivers parked in a disabled persons parking spot to make a delivery. Cohen claimed the delivery truck kept him from parking the disabled spot and thus blocked his access to nearby business A. At trial, Cohen had no evidence to show… Read More
Agreeing with Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, the Supreme Court holds that an intentional tortfeasor is not entitled to the benefits of Proposition 51 and CIvil Code 1431.2. An intentional tortfeasor is fully liable for all of the plaintiff's economic and noneconomic damages. Whereas, under secction 1431.2, a negligent tortfeasor is liable for the amount… Read More
The United States chose not to intervene in Thrower's False Claims Act suit, but later filed a motion to dismiss the case. The district court denied the motion to dismiss because it found the US had failed to meet its burden of demonstrating a valid governmental purpose related to the dismissal and because it failed to fully investigate the allegations… Read More
To prevail on a claim for tortiously inducing breach of an at-will contract (outside the context of employment contracts), the plaintiff must plead and prove that the defendant engaged in independently wrongful conduct to induce breach of the contract. An at-will contract is similar to a prospective economic advantage. The plaintiff has no right to compel performance in the future. … Read More
Plaintiffs pled a viable claim for false advertising under the UCL by the defendant manufacturers of pet food labeled "prescription" pet food. Under the reasonable consumer test, use of the word "prescription" was misleading in suggesting that the pet food contrained medicine or drugs. The fact that defendants sold their products, at least initially, only through vets did not make… Read More
In some respects, the trial court's specification of reasons for granting a new trial, subject to a remittitur, for excessive damages was adequate. For example, the trial court found that the jury had awarded duplicative damages for two different causes of action. However, the appellate court held the reason was not supported by the record which showed there was substantial… Read More
In another wrongful termination and defamation case, this decision follows Roby v. McKesson Corp. (2009) 47 Cal.4th 686, in holding that a one-to-one ratio of punitive damages to compensatory damages is the constitutional limit. Though emotional distress counts as physical injury for purposes of weighing reprehensibility, still plaintiff's emotional distress was not as severe as Roby's. Also, as in Roby,… Read More
When a manufacturer cannot repair a new car to cure a defect after a reasonable number of attempts to do so, it must either give the buyer a replacement car or pay the buyer restitution of the full purchase price plus collateral charges and incidental damages. Civ. Code 1793.2(d). Initial registration fees payable on purchase or lease of a new… Read More
California does not allow recovery of damages for the shortened life expectancy caused by plaintiff's contracting a disease from the defendant's product. And, in awarding damages for pain and suffering, the jury may only award such damages during the period the plaintiff is actually expected to live due the contracted disease. Read More
This decision affirms a jury verdict against Monsanto for products liability for failure to warn of the risk that Roundup's genotoxicity may cause non-Hodgkins lymphoma. A manufacturer must warn of risks that are merely possible, not probable. Here, even if the studies linking Roundup to lymphoma represented the minority view on the subject, Monsanto had a duty to warn of… Read More
This decision affirms a jury verdict against Monsanto for design defect liability due to Roundup's genotoxicity which can cause non-Hodgkins lymphoma. The trial court properly submitted the case to the jury under the consumer expectations test of design defect. Much expert testimony was needed to prove that Roundup caused lymphoma. But no expert testimony was admitted on what a consumer… Read More
A hiker on a trail in a public park's optional-leash area for dogs did not assume the risk that she would be injured by another hiker's unleashed dog. The park's rules for the area required unleashed dogs to be under their owners' control at all times and created a presumption that the dog was not under the owner's control if… Read More
In reviewing an order denying an Anti-SLAPP motion in a malicious prosecution case, the appellate court applies the norrmal standard of review, drawing all inferences in favor of the non-moving party. Those inferences will not affect the case when it proceeds to trial. And the appellate court's affirmance of the order denying the Anti-SLAPP motion will only preclude a summary… Read More
The interim adverse judgment rule did not prevent this malicious prosecution action because the maliciious prosecution defendant had engineered a denial of the defense summary judgment motion in the underlying action by withholding of a critical piece of evidence in willful violation of multiple court orders--which had it been produced would have resulted in summary judgment being awarded. The withheld… Read More
A unilateral dismissal of the underlying action while facing a motion for terminating discovery sanctions was a favorable termination sufficient to serve as the basis for a malicious prosecution action by the former defendant even though the dismissal was accompanied by a negotiated payment of less than all of the former defendant's legal fees. The slight reduction in fees was… Read More
To survive express and implied preemption, a state law claim against a medical device manufacturer must allege a claim that is based on conduct that violates the Federal Food, Drug and Cosmetic Act but is wholly based on state law which would give rise to recovery even if the federal act did not exist. Here, plaintiff's claims of negligence and… Read More
A sorority did not owe a duty of care to guests of its off-campus party to protect them from assault and battery by uninvited persons crashing the party. The measures that plaintiff claimed the sorority should have taken to prevent the harm--hiring private security personnel and maintaining and enforcing an invited guest list--were highly burdensome. To justify that degree of… Read More
An animal that is not itself sick is not a product for purposes of a design defect products liability case. Here, a rat that Petco sold as a pet had a bacterial infection that did not produce a disease affecting the rat but one that rarely, but in this case, fatally, produces a disease in humans. This decision holds that… Read More
Flying into a tirade at a 13-year-old girl who had been drugged and raped and yelling at her that she was stupid and it was her fault is extreme and outrageous conduct that exceeds that bounds of decency tolerated in a civilized community and so the tirade supports a claim for intentional infliction of emotional distress. To make matters worse,… Read More
