Under Wage Order No. 5, a hospital may obtain an affirmative defense to a claim for overtime pay by securing a 2/3ds affirmative vote of the workers in the unit to an alternative work schedule so long as the employer first makes full disclosure of the effects that the alternative work schedule will have and fulfills various other procedural requirements. … Read More
Under Gov. Code 11507 and 8 Cal. Cod. Regs. 371.2, Cal. OSHA may amend its accusation against an employer for safety violations before or during the administrative hearing so long as the employer is not prejudiced by the amendment. This decision affirms the Cal. OSHA Appeals Board's decision that the amendment of the accusation to allege a violation of a… Read More
Under Veh. Code 3066, the dealer bears the burden of proof on all elements of its protest against a manufacturer's notice that it intends to establish a new franchise within ten miles of the protesting dealer's location. This statute is more specific than and prevails over Veh. Code 11713.13 which states that the manufacturer bears the burden of establishing the… Read More
Unlike prior law which it replaced, California’s Motor Carriers of Property Permit Act (Veh. Code, § 34600 et seq.) does not require an insurer of motor carrier to provide coverage during the period between the end of the insurance policy's term and the date the insurer cancels the certificate of insurance on file with the DMV. Transamerica Ins. Co. v.… Read More
The district court erred in holding that the delegation clause in the arbitration agreement in this case was unconscionable and therefore unenforceable. The district court so ruled because the arbitration agreement also provided that if, for any reason, the dispute was not arbitrated, the parties waived a jury trial. Such a pre-dispute waiver of jury trial is unenforceable under California… Read More
Following Rittmann v. Amazon.com, Inc. (9th Cir. 2020) 971 F.3d 904, this decision holds that drivers who drove goods from in-state warehouses to Domino's franchisees in California are workers engaged in interstate commerce within the meaning of the exception to the FAA's scope. These drivers handled the last stage of transportation of the goods from out-of-state sources to the California… Read More
The parties stipulated to appointing a retired judge as a temporary judge to hear portions of their marital dissolution proceedings. The order appointing the temporary judge stated that the appointment would end on April 1, 2020 except as to any requests for orders that had been submitted before that date but had not yet been resolved. Here, wife submitted a… Read More
The trial court did not abuse its discretion in awarding HSBC its full expert witness fees incurred after rejection of its 998 offer. The expert's testimony was used at trial. His travel and meal expenses were also properly awarded as he came from Georgia to testify. The trial court also did not abuse its discretion in declining to reduce the… Read More
A 998 offer that began by reciting that it was an offer to settle all claims in "the above action" was not ambiguous in thereafter providing as a term of the offer that plaintiff will dismiss the action and "release HSBC of all liability to Plaintiff." The quoted phrase clearly related only to claims alleged in the action, not to… Read More
On plaintiff's first appeal, the Court of Appeal reversed a summary judgment for defendant. On remand, the case was tried to a judge who ruled in defendant's favor and plaintiff again appealed. Plaintiff claimed that HSBC violated Penal Code 632 and 632.7 by intentionally recording her confidential personal calls to and from her daughter who, at the time, was working… Read More
A manufacturer is liable in strict liability for injuries foreseeably caused by a feature of the product design that could have been reduced or avoided by the adoption of a reasonable alternative design. Here, plaintiff fell from a scissor lift when he failed to close the chain avross the opening to enter the lift's platform. The manufacturer offered an alternative… Read More
Plaintiff sued Disney for common law misappropriation of his story idea in making its animated file Zootopia. This decision affirms a summary judgment for Disney. Plaintiff had no direct evidence of copying. It did not produce evidence sufficient to allow a reasonable inference of copying either. The allegedly copied elements of plaintiff's story idea were not so unique as to… Read More
The trial court erred in granting the defendant gun shop summary adjudication of plaintiff gun shot victim's negligence per se claim based on sale of the gun to an 18-year-old who did not possess a valid, unexpired hunting license. See Pen. Code 27510.) Though "valid, unexpired" was ambiguous as to whether it included a valid license before its effective date,… Read More
Perfect 10 Inc. v. Amazon.com, Inc. (9th Cir. 2007) 508 F.3d 1146 remains good law and applies to all types of websites. It holds that "embedded" images on a website do not infringe a copyright in the embedded image because the embedding process merely provides instructions to the web browser to go to another website to download the image. The… Read More
By registering a derivative work, an author registers all of the material included in the derivative work, including that which previously appeared in an unregistered, original work created by the author. So plaintiff's registration of Chart B which included the elements of Chart A sufficed to obtain a copyright on the elements of Chart A. Moreover, the author of an… Read More
When a plaintiff has brought a PAGA action comprising individual (i.e., violations affecting the plaintiffs) and non-individual (violations affecting only other employees) claims, an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate the non-individual claims on behalf of other employees under PAGA. Read More
This decision affirms a $7 million judgment, including $6 million in punitive damages, against an employer for firing plaintiff in violation of Lab. Code 1102.5(c) (which prohibits adverse employment action in retaliation for a refusal to work reasonably perceived to violate a local, state or federal rule or regulation) and 232.5 (which prohibits retaliation for reporting working coinditions). Plaintiff was… Read More
Following Walls v. Wells Fargo Bank (9th Cir. 2002) 276 F.3d 502 and distinguishing Manikan v. Peters & Freedman, LLP (9th Cir. 2020) 981 F.3d 712, this decision holds that a debtor may not bring an FDCPA claim based on the assertion that the debt that is being collected was discharged in bankruptcy. The sole remedy for collection efforts barred… Read More
This decision holds that separate acts in the course of a collection action may constitute independent violations of the FDCPA and that the FDCPA's one-year limitations period runs separately from each of those violations. To constitute a separate violation, the litigation conduct must be the last opportunity for the debt collector to comply with the FDCPA and must occur on… Read More
Anaheim's living wage ordinance applies to any business that receives a city subsidy--that is, a right to receive a rebate of any city tax. This decision holds that defendant is such a business because it had a right to receive a rebate of certain city taxes if they exceeded the amount needed to repay bonds issued to revitalize the Anaheim… Read More
