Medicare Subpart C's express preemption provision supersedes any state law or regulation applicable to Subpart C medical plans. The provisions is intentionally broad in scope and was amended to apply to any state law or regulation, including common law and statutes not specifically directed at regulating medical plans. Read More
Plaintiff filed a 1983 action against a police officer claiming that he had violated his federal civil rights by killing a man who was a father figure to him. On the defendant's motion, the district court dismissed the action finding that the plaintiff lacked Article III standing because plaintiff did not allege any not allege amy custodial, biological, or legal… Read More
Fire insurance policies must be written on the statutory form that includes a one-year from inception of loss (semi-contractual) statute of limitations. This decision holds that the insured cannot circumvent that limitations provision by bringing suit under the UCL for an injunction against denial of insurance coverage under similar circumstances. To have standing to sue under the UCL, the plaintiff… Read More
Disagreeing with Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, this decision holds that the California Supreme Court has not abandoned its requirement that for an order to be appealable under the collateral order doctrine, the order must direct payment of money or performance of an act. That requirement remains a restriction on collateral order appeals… Read More
Lab. Code 2802 requires an employer to reimburse employees for expenses they incurred in working from home during the COVID-19 pandemic. It does not matter that the state's emergency stay-at-home caused the employees to work from home rather than in an office. Lab. Code 2802 contains no causation requirement or excuse. Rather the section requires an employer to reimburse employees… Read More
While the Rowland factors' foreseeability factors weigh in favor of imposing a duty of care on employers to take safety measures to prevent employees from contracting COVID-19 and transmitting the disease to family members and others, the public policy factors weigh against finding such a duty of care and they outweigh the foreseeability factors. Recognizing liability would create staggering risk… Read More
A wife's claim against her husband's employer alleging that she contracted COVID-19 when her husband brought it home from work is not preempted by the Workers Compensation Act because the claim does not depend upon proof that the husband employee was injured or got sick. While it may be necessary to prove the husband was ill with COVID to prove… Read More
Herbal sued defendant for Lanham Act violations, an intentional tort. Accordingly, the court applied the Calder effects test to determine whether Arizona could assert personal jurisdiction over the defendant. Defendants purposefully directed their tortious activities toward Arizona by selling to Arizona residents on an interactive website. The alleged harm arose from those sales, among others. And Herbal's pre-suit cease-and-desist letters… Read More
Applying Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal. 5th 1130 to an at-will employment contract, this decision holds that to assert a tort claim for inducing breach of the contract, the plaintiff must allege independently wrongful conduct. Here, plaintiff could not do so. He lacked antitrust standing to rely on the antitrust violation that he had alleged as… Read More
Expanding on Asahi Kasei Pharma Corp. v. CoTherix, Inc. (2012) 204 Cal.App.4th 1, this decision holds that the Cartwright Act does not prohibit anti-competitive acts taken by merger partners in the run-up to the merger, even if the merger, though commenced in good faith, in the end falls through. Read More
To have standing to sue for an antitrust violation, the plaintiff must allege an injury arising from the aspect of the alleged antitrust violation that causes the evil at which the antitrust laws are aimed; namely, a reduction in competition. Here, the alleged violation was a pre-merger agreement between the merging entities not to compete for each other's customers before… Read More
Oregon's wiretapping statute violates the First Amendment and is unenforceable. It is a content-based regulation of speech since it excepts from its scope police recordings of conversations in which the policeman is a party and is performing official duties. The law doesn't meet strict scrutiny because it is too broad, banning audio or visual recording on any conversation without consent--thus,… Read More
The owner and subscriber of a phone with a number listed on the Do-Not-Call Registry has suffered an injury in fact sufficient to confer Article III standing when unsolicited telemarketing calls or texts are sent to the number in alleged violation of the Telephone Consumer Protection Act even if the communications are intended for or solicited by another individual, and… Read More
Under CCP 414.10, anyone who is over 18 years old may serve a summons and complaint--except for a party. Here, plaintiff's service of the summons and complaint on the defendant was insufficient to give the court jurisdiction over the defendant. Hence, the ensuing default judgment agains the defendant was properly set aside under CCP 473(d) as void on its face. … Read More
Following Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, this decision holds that when a plaintiff's injury results in part from one defendant's negligence and another defendant's intentional act, the court must on either defendant's request, submit a jury instruction and special verdict directing apportionment of liability as between the defendants under Civ. Code 1431.2. Read More
The primary assumption of the risk doctrine does not apply to students who engage in sports activities as a mandatory part of their physical education classes. Read More
This decision affirms an order amending a judgment to name an individual as an alter ego of the corporate defendant. There was evidence to support the trial court's finding that inequity would otherwise result. The judgment creditors had been unable to satisfy their judgments/ The individual had been CEO and owner of the corporation until judgment was entered against it. … Read More
If the judgment that is being enforced is an amended judgment, the 10-year time limit on its enforceability runs from entry of the amended judgment, not the original judgment. Read More
The Court of Appeals may raise sua sponte a question as to whether CAFA jurisdiction exists in a removed action even though neither the plaintiff nor the district court challenged the defendant's removal of the action or questioned the existence of CAFA jurisdiction. Here, neither the removal notice nor an attached declaration established that CAFA's $5 million amount in controversy… Read More
(The Alien Tort Statute (28 USC 1350) allows a private action by an alien against a defendant for aiding and abetting a crime against the law of nations in a foreign country. For this purpose, the actus reus of aiding and abetting is providing assistance, encouragement, or moral support that has a substantial effect on the crimes. Assistance may take… Read More
