Posts

Uber, Lyft, Lawyers, Misclassified Workers: PAGA Claims Are Not Arbitrable

 In recent years the courts of this State have reviewed several petitions compelling arbitration or otherwise whether an arbitration clause in employment or independent contractor engagement agreements are enforceable with respect to PAGA claims. ( Z.B., N.A. v. Superior Court  (2019) 8 Cal.5th 175;  Iskanian v. CLS Transportation Los Angeles, LLC  (2014) 59 Cal.4th 348;  Provost v. YourMechanic, Inc. (2020) 55 Cal.App.5th 982;  Correia v. NB Baker Electric, Inc.  (2019) 32 Cal.App.5th 602;   Jilian v. Glenair, Inc. (2017) 7 Cal.App.5th 853.) Counsel for those seeking to enforce a catch-all  arbitration clause in an employment agreement to avoid PAGA claims in the California court system often cite Epic Systems Corporation v. Lewis  (2018) 138 S.Ct. 1612 ( Epic ) for the proposition that Epic preempts California law. But, the construction, interpretation, and enforcement of a contract are governed by State law and, general...
Post a Comment
Read more

Negligent Infliction of Emotional Distress in the Zoom-era

 On December 23, 2020, the Second District Court of Appeal issued a contemporary view of claims alleging Negligent Infliction of Emotional Distress. In the last year, society has witnessed the evolution of stay-at-home to work-from-home environment which further demands electronic devices take a necessary role in the contemporary person's life. The electronic communications immediacy, reliability, and verifiability have become more weighty in our lives and in jurisprudence as well. Landon Ko was born with Rubinstein-Taybi Syndrome which impacted his vision, ambulation, hearing, development and nutrition. His Parents, Diana and Christopher Ko, received assistance from medical providers who cared for Landon at their home. Maxim Healthcare Services, Inc. through Thelma Manalastas provided care for Landon at home. Landon's parents, as contemporaries of useful technologies, owned a nanny cam which surveyed the home while they were away. One day while the parents took their other two...
Post a Comment
Read more

Why Alternative Theories Should be Alleged in Legal Malpractice Actions

The most notorious aspect of proving a legal malpractice action is case-within-a-case component. If a lawyer represents a party in a transaction and commits malpractice, the plaintiff-client must prove but for the transactional document prepared by his lawyer the plaintiff-client would not have suffered the harm. In the litigation setting, the plaintiff-client must prove that he would have won the underlying case and  could have collected the judgment. ( See , Viner v. Sweet , 30 Cal. 4th 1232; CACI (2017 edition) No. 601. Damages for Negligent Handling of Legal Matter.) Do alternative theories of liability--intentional misrepresentation, constructive fraud, intentional infliction of emotional distress--bolster plaintiff's clients claims? The answer is as always, it depends. The factual circumstances of any given case will determine the available causes of action and remedies in any case. If the lawyer for instance assaulted or battered the plaintiff-client and missed a deadline,...
Post a Comment
Read more

The Federal Relief Program and Mitigating Risks During the Covid-19 Disaster

This article explores two issues relevant to small business today. First, the Federal Relief program for small business, and second a general framework for maintaining your small business during a disaster. I. The CARES Act and Existing SBA Relief Programs As we all work together to slow the spread of COVID-19, more of us are staying at home, reducing our spending, working from home, and temporarily shutting down or reducing the output of our small businesses. These efforts will help save countless lives during these uncertain times. The Federal Government has issued the largest private financial relief package, the CARES Act, in all of this nation's history to help small businesses adversely affected by the virus. In recent days, the Federal Government passed a second round of relief for small business which is slated to focus on mom and pop shops. The original CARES Act was signed into law on Friday, March 27, 2020, which includes, $376 billion in relief for Ameri...
Post a Comment
Read more

Confidential Group Messages: The Hunter Cases and Discovery Rights

First, this article briefly discusses the fairly recent decision from the California Supreme Court in  Facebook, Inc. v. Superior Court (Hunter II)  4 Cal. 5th 1245, 233 Cal. Rptr. 3d 77, 417 P.3d 725 ( Hunter II ). Second, following remand, the trial court issued subsequent orders concerning the issues presented in Facebook , again the trial court erred, for which the parties sought a writ of mandate. On March 6, 2020, the First Appellate Court of Appeal certified the opinion for publication ( Hunter III) .* In  Hunter II  defendants were charged with a murder which arose from a drive-by shooting. During the course of discovery, defendants served a subpoena duces tecum seeking the business records of social media providers (Facebook, Inc.** and Twitter, Inc.) and the communications of particular users--including private message, group messages, and public messages of the murder victim and a witness. Upon receipt of the subpoena the social media providers fi...
Post a Comment
Read more

Attacking Conspiracy Claims Through The Anti-SLAPP Framework

On March 24, 2020, the Second Appellate District of California issued a decision for publication in the matter Spencer v. Mowat* concerning a "beach gang" that harassed non-local, outsiders surfing the Lunada Bay waves in the Palos Verdes Estates. The beach gang would throw rocks and otherwise antagonize, assault and batter outsiders. The outsiders filed suit alleging causes of action including, public nuisance, assault and battery. The outsiders also alleged a claim of conspiracy in support of their theory of vicarious liability which would find all persons who were part of the conspiracy liable for the acts of their co-conspirators. The beach gang had a long history of conduct they categorized as protected speech and protest of non-local surfers in the area. The beach gang in fact petitioned and appeared at local City Council to address the issue of outsiders. But the Court was not convinced about the protected activity occurring on the beach--the activity of which plaintif...
Post a Comment
Read more