Products Liability and Injury Lawyer Blog

WRONGFUL TERMINATION: MISTAKEN OVERTIME CLAIM

2010-02-18T23:29:25Z

Barbosa v. IMPCO Technologies, (Fourth District, November 30, 2009) 179 Cal.App.4th 1116, 101 Cal.Rptr.3d 923

A man who was terminated from his job as a carburetor assembler for mistakenly claiming overtime pay to which he was not entitled, filed an action for wrongful termination. The plaintiff contended that although he had had a reasonable good faith belief that he was entitled to unpaid overtime, when he discovered the mistake and offered to pay the money back to the payroll department he was subsequently terminated for cheating the company.

After the plaintiff completed presentation of his case, the trial court granted the former employer’s motion for a non-suit, finding that there is no public policy requiring an employer to continue to employ an at-will employee who has made an unjustified claim for monies. However, the court of appeal reversed, holding that public policy protects an employee from being terminated for making a good faith but mistaken claim to overtime:

]]> "[T]he Supreme Court held in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 78 Cal.Rptr.2d 16, 960 P.2d 1046 that a plaintiff's failure to prove an actual violation of law by his employer did not defeat the wrongful termination cause of action. . . . As long as the employee makes the health or safety complaint in good faith, it does not matter for purposes of a wrongful termination action whether the complaint identifies an actual violation of other workplace safety statutes or regulations.” . . . . . It follows that the same result should obtain when an employee exercises his statutory right to overtime wages out of a reasonable good faith belief he is entitled to it, notwithstanding the later discovery that he is wrong. Any other conclusion would open the door to employee intimidation and chill the exercise of statutory rights.

Barbosa presented evidence that he had a reasonable good faith belief he was entitled to overtime. Under the previous time clock system, mistakes in timekeeping had been made; the new system had been in place less than a month. Barbosa's co-workers convinced him the overtime was unpaid, and he in turn convinced DeSantos. He testified he was confused. In fact, the trial court acknowledged Barbosa had presented sufficient evidence to support a good faith belief when it granted the nonsuit.

IMPCO argues Barbosa cannot prove he was terminated for making a claim for overtime, asserting he was terminated for misrepresenting that he worked overtime when he did not. IMPCO contends it is not a violation of public policy to fire an employee for lying and cheating his employer. IMPCO misses the point. Barbosa must prove he had a reasonable good faith belief he was entitled to overtime wages and that IMPCO terminated him because he claimed overtime based on that reasonable good faith belief. If Barbosa proves he had a reasonable good faith belief in his right to overtime, ipso facto he did not attempt to cheat IMPCO. Because Barbosa presented sufficient evidence to support both elements in his case-in-chief, the case should have been allowed to progress to its conclusion and be submitted to a jury."

PUNITIVE DAMAGES—RATIO TO COMPENSATORY DAMAGES

2010-01-15T21:59:09Z

Roby v. McKesson Corporation, (Supreme Court of California, November 30, 2009) 47 Cal. 4th 686, 219 P.3d 749, 101 Cal.Rptr.3d 773, 22 A.D. Cases 1041, 09 Cal. Daily Op. Serv. 14,189, 2009 Daily Journal D.A.R. 16,712

A woman who alleged she was wrongfully discharged from her employment because of her medical condition and related disability, filed an action against her employer seeking damages for harassment and discrimination. Following a jury verdict in favor of the plaintiff which included over $3 million in compensatory damages and $15 million in punitive damages, the court of appeal reduced the award of compensatory damages to $1.4 million and the punitive award to $2 million.

The plaintiff petitioned for review in the California Supreme Court, asserting that the jury’s entire $15 million award fell within constitutional limits and should be reinstated. However, the Supreme Court reversed the judgment of the court of appeal and reduced the award of compensatory damages to $1.9 million, concluding that due the relatively low degree of reprehensibility on the part of the employer, a one-to-one ratio between compensatory and punitive damages was the constitutional limit:

]]> "With respect to the discrimination claim, employer McKesson's wrongdoing was limited to its one-time decision to adopt a strict attendance policy that, in requiring 24-hour advance notice before an absence, did not reasonably accommodate employees who had disabilities or medical conditions that might require several unexpected absences in close succession. McKesson's act of discharging Roby (including the perfunctory investigation that accompanied it) was simply an application of this attendance policy in accordance with its terms. The jury found that McKesson's adoption of this flawed attendance policy constituted “oppression” or “malice,” justifying an award of punitive damages. (Civ.Code, § 3294, subd. (a).) Nevertheless, McKesson's adoption of this attendance policy was a single corporate decision. . . . With respect to the harassment claim, McKesson's corporate wrongdoing was also a single event. In considering this issue, it is important to keep in mind that a corporate defendant cannot be punished for harassment merely because one of its employees has harassed another employee in the workplace; rather, the focus of the punitive damages inquiry must be on the corporation's institutional responsibility, if any, for that harassment. . . . That McKesson thereafter continued to employ Schoener as Roby's supervisor without taking any corrective measures indicates “conscious disregard of the rights or safety of others” (Civ.Code, § 3294, subd. (b)), thus warranting punitive damages.

Nevertheless, the evidence establishing corporate wrongdoing in regard to supervisor Schoener's unlawful harassment of Roby does not indicate any repeated corporate misconduct. There is no evidence, for example, that Schoener's actions toward Roby were the product of a corporate culture that encouraged similar supervisorial conduct. Rather, they appear to be the isolated actions of a single supervisor, combined with the one-time failure on the part of employer McKesson to take prompt responsive action when these events came to its attention.
. . .
In applying the federal Constitution here, we have taken McKesson's wealth into consideration, and more to the point we have taken into consideration the deterrent effect that is appropriate in light of McKesson's wrongdoing. We nevertheless conclude that punitive damages in an amount equal to compensatory damages marks the constitutional limit in this case and still provides the appropriate deterrence."

TOXIC CHEMICALS: SECONDARY EXPOSURE

2009-12-09T01:45:18Z

Oddone v. Superior Court, (Second District, November 24, 2009) 179 Cal. App. 4th 813, 101 Cal.Rptr.3d 867, 09 Cal. Daily Op. 14,124

A woman whose husband died as a result of a brain tumor allegedly caused by exposure to toxic chemicals at his place of employment, filed an action on her own behalf against the employer. The plaintiff alleged that her husband’s clothing absorbed chemical substances he was using in connection with his employment, and that the substances would remain on his skin, causing her to be exposed to the chemicals as a result of her contact with her husband. The plaintiff further alleged that the defendant had breached duties to warn and to safely operate its premises to protect spouses and family members of employees from coming into contact with chemical substances used at its facility, thereby causing the plaintiff to suffer secondary chemical exposure.

The trial court sustained the defendant’s demurrer without leave to amend. The court of appeal denied the plaintiff’s petition for a writ of mandate, concluding that the trial court correctly found that the defendant did not owe a duty of care to the plaintiff to protect her from secondary exposure to toxic chemicals:

]]> "Petitioner's attempts to state a cause of action for her own alleged injuries fall strikingly short when it comes to the third of the Rowland factors, which is the closeness of the connection between the defendant's conduct and the injury suffered. . . . We do not hold that a plaintiff cannot state a cause of action for secondary exposure to toxic chemicals. Given appropriately specific allegations, this may be quite possible. But in this case, petitioner's allegations simply do not establish any connection, much less a close connection, between the defendant's conduct and her alleged (and unspecified) injuries. . . . Petitioner's principal difficulty with these factors is that it is hard to draw the line between those nonemployee persons to whom a duty is owed and those nonemployee persons to whom no duty is owed. Including “all family members” into the former category would be too broad, as not all family members will be in constant and personal contact with the employee. Limiting the class to spouses would be at once too narrow and too broad, as others may be in contact with the employee and spouses may not invariably be in contact with the employee. Limiting the class to those persons who have frequent and personal contact with employees leaves at large the question what “frequent” and “personal” really means. This is only a sampling of the problem.

The gist of the matter is that imposing a duty toward nonemployee persons saddles the defendant employer with a burden of uncertain but potentially very large scope. One of the consequences to the community of such an extension is the cost of insuring against liability of unknown but potentially massive dimension. Ultimately, such costs are borne by the consumer. In short, the burden on the defendant is substantial and the costs to the community may be considerable.

Assuming for the purposes of argument that there is some risk to nonemployee persons, in a less than perfect world it appears to make more sense to look to the nonemployee person's insurance to cover the risk."

PRODUCTS LIABILITY: REPLACEMENT PARTS

2009-11-19T20:41:50Z

O’Neil v. Crane Co., (Second District, September 18, 2009), 99 Cal.Rptr.3d 533, 09 Cal. Daily Op. Serv. 12,021, 2009 Daily Journal D.A.R. 13,945

The widow and children of a naval officer who died of mesothelioma as a result of being exposed to asbestos while working on an aircraft carrier, filed a wrongful death action against the manufacturers of valves and pumps which contained asbestos and which had been installed on naval vessels. The plaintiffs alleged that the decedent had been exposed to asbestos-containing insulation and packing material in the pumps, which released toxic fibers during routine use of the products when the packing was replaced.

The defendants filed a motion for non-suit, arguing, inter alia, that at the time of the decedent’s exposure, the original asbestos-containing parts had been replaced with new parts, and that the plaintiffs had not attempted to prove that the replacement insulation and packing had been purchased from the defendants.

The trial court granted the motion for non-suit but the court of appeal reversed, holding that under the circumstances, the manufacturers could still be liable even if the original components had been replaced:

]]> “Under these principles, respondents would clearly be liable to a sailor who was injured as a result of exposure to the asbestos-containing packing and insulation they supplied with their pumps and valves. Respondents do not contend otherwise. Instead, they seek a different result because O'Neil was injured not by the original packing and insulation, but by replacement parts. In support, they cite cases which do not consider a manufacturer's liability for the components of its products, or for replacement parts, or the kind of interdependent products (valves and pumps along with their insulation and packing) which this case presents. We see nothing in these cases which would cut off respondents' responsibility for failure to warn or design defect, at the point in time at which their products were subject to predictable and ordinary maintenance or repair. . . . In contrast, respondents incorporated asbestos-containing products into their own products, which needed the asbestos-containing products in order to function. The injury was caused by the operation of respondents' products with replacement products which had the same dangerous propensities as the original parts. Respondents' cases do not address that situation. Other cases do. Under those cases, respondents can be held strictly liable for injury caused by dust emanating from replacement asbestos. We believe that that is the correct rule. . . . [A] manufacturer is liable in strict liability for the dangerous components of its products, and for dangerous products with which its product will necessarily be used. That was appellants' evidence; that respondents incorporated asbestos-containing products into their products and knew those products would over time be replaced with the same kind of product, and that the products were defective because they required asbestos packing and insulation, and because they had no appropriate warnings. We can see no relevance to the fact that the injury was caused by the operation of its product in conjunction with a replacement part which is no different than the original. If respondents had warned the hypothetical original user, or protected that person by avoiding defective design, subsequent users, too, would have been protected.”

FAIR DEBT COLLECTION PRACTICES: LITIGATION PRIVILEGE

2009-10-11T18:42:30Z

Komarova v. National Credit Acceptance, Inc., (First District, June 25, 2009) 175 Cal.App.4th 324, 95 Cal.Rptr.3d 880, 09 Cal. Daily Op. Serv. 8174, 2009 Daily Journal D.A.R. 9455

A woman filed an action against a debt collection agency, alleging that the defendant had engaged in abuses in violation of the Robbins-Rosenthal Fair Debt Collection Practices Act (Civil Code section 1788 et seq.). Asserting causes of action for statutory violations as well as intentional infliction of emotional distress, the plaintiff alleged that the defendant had not only mistakenly pursued the wrong individual, but had engaged in debt collection abuses such as harassing phone calls, calling without disclosure of identity, unreasonably frequent harassing communications and judicial proceedings without service of process.

Appealing from a jury verdict in favor of the plaintiff, the defendant contended that the plaintiff’s claims were barred by the litigation privilege of Civil Code section 47, which affords litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions. The court of appeal affirmed in part and reversed in part, holding that the litigation privilege did not apply to the cause of action under the Rosenthal Act, but did apply to the cause of action for emotional distress:

]]> "We must nonetheless be mindful of the ease with which the Act could be circumvented if the litigation privilege applied. In that event, unfair debt collection practices could be immunized merely by filing suit on the debt. The defendants in Gerber, supra, 2009 WL 248094, page *1, for example, allegedly “ ‘kept a state court collection lawsuit secret from plaintiff and his attorney for nearly a year while supposedly communicating in good faith as to an alleged debt.’ [P]laintiff claims defendants did this ‘so they could commit aggressive and egregious violations of fair debt collection laws while retaining a hidden “hole card” for privilege....’ ” Moreover, the Act's prohibitions of deliberate neglect of service of process (§ 1788.15, subd. (a)) and distant forum abuse (§ 1788.15, subd. (b)) would be nullified by the privilege. The Legislature presumably would not have included those protections in the Act if it intended for the privilege to apply. Further, as noted in Butler, supra, 521 F.Supp.2d at page 1096, the Act is “a remedial statute [that] should be interpreted broadly in order to effectuate its purpose.” (See People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313, 58 Cal.Rptr.2d 855, 926 P.2d 1042 [“civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose”].) For these reasons, we conclude that the Act would be significantly inoperable if it did not prevail over the privilege where, as here, the two conflict. . . . Plaintiff contends that the purposes of the litigation privilege would not be served by applying it here, but as to the cause of action for intentional infliction of emotional distress, this case is the very sort of derivative suit the privilege is meant to preclude. The privilege “seeks to encourage free access to the courts and finality of judgments by limiting derivative tort claims arising out of litigation-related misconduct and by favoring sanctions within the original lawsuit.” (Rusheen, supra, 37 Cal.4th at p. 1063, 39 Cal.Rptr.3d 516, 128 P.3d 713.) Plaintiff claims that she “could not assert her rights in the arbitration or Superior Court proceedings for the simple fact that she was not a party thereto.” However, she was served with the petition to confirm the arbitration award and could have appeared and sought sanctions in the confirmation proceeding. The privilege bars the cause of action for intentional infliction of emotional distress in this as in other cases."

SOCIAL NETWORKING WEBSITES: CONTENT PROVIDED BY THIRD PARTIES

2009-09-22T20:06:45Z

Doe II v. MySpace Incorporated, (Second District, June 30, 2009) 175 Cal.App.4th 561, 96 Cal.Rptr.3d 148, 09 Cal. Daily Op. Serv. 8401, 2009 Daily Journal D.A.R. 9774

Four minor females filed separate lawsuits against the social networking website, MySpace.com, alleging that they had all been sexually assaulted by adults whom they had met on the website. The plaintiffs alleged that MySpace was aware that its website poses a danger to children by facilitating attempted and actual sexual assault, and that MySpace failed to institute reasonable measures to prevent older users from directly searching out, finding, and/or communicating with minors.

The defendant demurred to complaints based upon the immunity provisions of the Communications Decency Act (47 U.S.C. §230), which immunizes interactive computer services providers who are not information content providers from liability for information originating from third-party users of their service. The trial court sustained the demurrers without leave to amend and the court of appeal affirmed, holding that MySpace is not an information content provider, and is not liable for content provided by third-party users:

]]> "Given the general consensus to interpret section 230 immunity broadly, extending from Zeran to the Fifth Circuit's opinion in Doe v. MySpace, Inc. addressing identical facts and legal issues, we also conclude that section 230 immunity shields MySpace in this case. That appellants characterize their complaint as one for failure to adopt reasonable safety measures does not avoid the immunity granted by section 230. It is undeniable that appellants seek to hold MySpace responsible for the communications between the Julie Does and their assailants.

At its core, appellants want MySpace to regulate what appears on its Web site. Appellants argue they do not “allege liability on account of MySpace's exercise of a publisher's traditional editorial functions, such as editing, altering, or deciding whether or not to publish certain material, which is the test for whether a claim treats a website as a publisher under Barrett.” But that is precisely what they allege; that is, they want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity-to restrict or make available certain material-is expressly covered by section 230."

PRODUCTS LIABILITY: SERVICE ON FOREIGN MANUFACTURERS

2009-08-11T00:01:40Z

Yamaha Motor Corporation, Ltd. v. Superior Court, (4th District, May 26, 2009)
---Cal.Rptr.3d----, 2009 WL 1458270, 09 Cal. Daily Op. Serv. 6433

A boy who was injured while operating a Yamaha Rhino filed a products liability action against Yamaha Motor Company, Ltd. (Yamaha-Japan), the Japanese entity which manufactured the vehicle, as well as Yamaha Motor Corporation, U.S.A. (Yamaha-America), its wholly owned domestic subsidiary and exclusive importer and distributor in the United States. When the plaintiff attempted to serve Yamaha-Japan by serving Yamaha-America through its agent for service of process, Yamaha-Japan filed a motion to quash service, arguing that Yamaha-America is only a subsidiary of Yamaha-Japan, not Yamaha-Japan’s general manager in California, and therefore service should have been made through the Hague Convention.

The trial court denied the motion, reasoning that Yamaha-America is Yamaha-Japan’s general manager in California. Yamaha-Japan filed a petition for writ of mandate but the court of appeal denied the writ, holding that California law allows service on a foreign corporation by serving its domestic subsidiary:

]]> "This court issued an OSC in response to this petition for writ of mandate because it presents an issue of some public importance that has not yet been squarely faced by a California state court, in a published opinion, in this particular context: The question of whether a Japanese manufacturer can be served under California law simply by serving the Japanese manufacturer's American subsidiary. The trial court ruled that a Japanese manufacturer could indeed be validly served that way. The method just seemed too easy a way to get around the Hague Service Convention and we scheduled an OSC on the petition to give us the chance to study the issue.

On review, however, it turns out that, yes, it really is that easy. And not only that, there is nothing this court, as a matter of California common law, can do about it. We are a court under authority, and there is a non-overruled, non-distinguishable California Supreme Court case, Cosper v. Smith & Wesson Arms Co. (1959) 53 Cal.2d 77, 346 P.2d 409, that makes service on the California representative of a foreign parent valid-that is, valid as to the foreign parent-under California law. And not only that, but there is a 1988 federal United States Supreme Court case, Volkswagenwerk Aktiengesellschaft v. Schlunk, supra, 486 U.S. 694, 108 S.Ct. 2104, 100 L.Ed.2d 722(Schlunk ), that says when service is valid under state law on the American subsidiary of a foreign manufacturer, there is no need to serve papers in accord with the Hague Service Convention. Accordingly, we have no choice but to deny the petition for writ of mandate."

RIGHT TO PRIVACY: PROFESSIONAL SPORTS STADIUM SEARCHES

2009-07-02T23:59:03Z

Sheehan v. San Francisco 49ers, Ltd., (Supreme Court of California, March 2, 2009) 45 Cal.4th 992, 201 P.3d 472, 89 Cal.Rptr.3d 594, 09 Cal. Daily Op. Serv. 2525, 2009 Daily Journal D.A.R. 2977

Two long-time San Francisco 49er’s season ticket holders who were subjected to patdown searches before they were allowed to enter the stadium for an NFL game, filed suit against the team. The plaintiffs alleged that the 49ers had implemented the patdown policy pursuant to a policy the NFL promulgated by which stadium screeners are supposed to conduct physical searches by touching, patting or lightly rubbing all ticket holders entering every NFL stadium for each NFL game. Contending that the searches violated their state constitutional right to privacy, the plaintiffs sought a declaration that the searches were unconstitutional, as well as an injunction prohibiting any further such searches.

The 49ers demurred to the complaint, contending that it did not state a cause of action, and the trial court agreed, sustaining the demurrer without leave to amend. The court of appeal affirmed, concluding that the plaintiffs could not demonstrate that they had a reasonable expectation of privacy under the circumstances, and that rather than submitting to the patdown, the plaintiffs had the choice of walking away. The California Supreme Court reversed, and remanded the case to the trial court, finding that the 49ers had not demonstrated that the allegations of the complaint failed to state a cause of action:

]]> "Plaintiffs must establish a reasonable expectation of privacy under the circumstances. “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” . . . The factual record of this case-which consists solely of the complaint-does not establish what the competing social interests are. Presumably, the NFL, and ultimately the 49ers', adopted the policy to enhance spectator safety, but the record does not establish this or explain why the NFL believed the policy was appropriate. As evidenced by the circumstance that the pursuit of safety, like the pursuit of privacy, is a state constitutional right, the competing social interest of enhancing safety is substantial. Those who provide private entertainment venues, including the 49ers' at NFL football games, have a substantial interest in protecting the safety of their patrons. But when the security measures substantially threaten a privacy right, courts review the policy for reasonableness under the circumstances. Here, we cannot do so because the record does not establish the circumstances of, or the reasons for, the patdown policy. The 49ers' have not yet given any justification for its policy. . . . [I]n reviewing a private entertainment venue's security arrangements that implicate the state constitutional right of privacy, the court does not decide whether every measure is necessary, merely whether the policy is reasonable. The state constitutional right of privacy does not grant courts a roving commission to second-guess security decisions at private entertainment events or to micromanage interactions between private parties. . . . Private entities that present entertainment events, like the 49ers', necessarily retain primary responsibility for determining what security measures are appropriate to ensure the safety of their patrons, subject, when those security measures substantially infringe on a privacy interest, to judicial review for reasonableness."

FDA ISSUES WARNING REGARDING ZICAM NASAL SPRAY

2009-06-17T01:30:49Z

In a conference call with a group of reporters this morning the FDA announced it is warning users of Zicam, a popular cold-relief nasal spray, to stop using the product because it has been associated with approximately 130 reported cases of people losing their sense of smell.

The FDA stated that it had sent Matrixx Initiatives, Inc., the manufacturer of Zicam, a warning letter directing the company to stop marketing the internasal products. The agency also instructed Matrixx that it must seek FDA approval if it wishes to continue selling zinc-containing versions of Zicam administered through the nose.

No recall has been ordered because the FDA's authority is limited for regulation of over-the-counter homeopathic remedies such as Zicam. Although Matrixx denies that the product can cause a loss of smell, the company indicated that it will consider withdrawing the products from the market.

Several lawsuits have already been filed against Matrixx, asserting that Zicam nasal gel has caused permanent loss of smell (anosmia) and taste in users, some after a single application of the product. Zicam contains soluble zinc gluconate, a substance known to be linked to olfactory nerve damage when applied through the nose, which has been associated with anosmia since the 1930’s.

Shares of Matrixx Initiatives Inc. (MTXX) dropped 56% to $8.56 in recent trading after hitting a 52-week low of $8.41 earlier in the day.

INVASION OF PRIVACY: SOCIAL NETWORKING WEBSITES

2009-06-02T19:57:11Z

Moreno v. Hanford Sentinel, Inc., (5th District, April 2, 2009) --- Cal.Rptr.3d ----, 2009 WL 866795

A woman who posted an article on myspace.com, a social networking website, expressing negative comments about her hometown and its inhabitants, filed suit against a local high school principal and his employer for invasion of privacy and intentional infliction of emotional distress based upon a republication of the article. The plaintiff alleged that even though she had removed the article from the website, the high school principal had forwarded it along with her name to a local newspaper, whereupon it was republished in a letters to the editor section. The plaintiff further alleged that the community reacted violently to the publication, that she and her family had received death threats, and that a shot was fired at the family home.

The trial court sustained the defendant’s demurrer without leave to amend, but the court of appeal affirmed in part and reversed in part. In a non-published portion of the opinion the court held that the trial court should have overruled the demurrer to the intentional infliction of emotional distress cause of action, and permit a jury to determine whether the alleged conduct was outrageous. However, in the published portion of the opinion, the court held that the plaintiff did not state a cause of action for invasion of privacy:

]]> "As noted above, a crucial ingredient of the applicable invasion of privacy cause of action is a public disclosure of private facts. A matter that is already public or that has previously become part of the public domain is not private. (Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1047, 201 Cal.Rptr. 665.)

Here, Cynthia publicized her opinions about Coalinga by posting the Ode on myspace.com, a hugely popular internet site. Cynthia's affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material. . .[T]he fact that Cynthia expected a limited audience does not change the above analysis. By posting the article on myspace.com, Cynthia opened the article to the public at large. Her potential audience was vast.

That Cynthia removed the Ode from her online journal after six days is also of no consequence. The publication was not so obscure or transient that it was not accessed by others. (Cf. DVD Copy Control Assn. v. Bunner (2004) 116 Cal.App.4th 241, 251, 10 Cal.Rptr.3d 185.) The only place that Campbell could have obtained a copy of the Ode was from the internet, either directly or indirectly."

NEGLIGENT HIRING: POST-TERMINATION MISCONDUCT

2009-06-02T18:32:40Z

Phillips v. TLC Plumbing, Inc., (4th District, April 3, 2009) --- Cal.Rptr.3d. ----, 2009 WL 884938, 09 Cal. Daily Op. Serv. 4215

A woman whose mother was murdered by a former plumbing repairman, filed an action for wrongful death against the plumbing service which had employed him. The plaintiff alleged that her mother met the repairman when he had been dispatched to her home by the defendants, and that they had started a relationship following his termination. The plaintiff further alleged that although the murder occurred two years after the repairman had been terminated, the defendants were aware at the time he was hired that he was on parole, and that he had been convicted of domestic violence and/or arson involving his former wife.

The trial court granted the defendants’ motion for summary judgment, finding that they could not be held vicariously liable for the plaintiff’s injuries because there was no employer-employee relationship at the time of the killing. The court also found that it was not reasonably foreseeable that the repairman would enter into a personal relationship with the victim which would later lead to a shooting and killing two years later. The court of appeal affirmed, holding that an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury inflicted by a former employee:

]]> "Although neither party cited, and we are not aware of, any California case addressing the instant question of law, cases from other jurisdictions support our conclusion that an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury or other harm inflicted by a former employee on the plaintiff even though that employee, as in this case, initially met the plaintiff while employed by the employer. Accordingly, we agree with Defendants' assertion that because Cain's tortious act on Judith occurred two years after his employment with TLC was terminated, Defendants did not owe Plaintiff a duty of care at the time of Cain's tortious act and therefore cannot be held liable on a cause of action for negligent hiring and retention. . . . The great weight of case authority from other jurisdictions that have applied the Restatement Second of Agency to posttermination torts by former employees supports our conclusion. Because the employer-employee relationship ends on termination of an employee's employment, we conclude an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury or other harm inflicted by a former employee on the plaintiff even though that former employee, as in this case, initially met the plaintiff while employed by the employer. Accordingly, we agree with Defendants' assertion that because Cain's tortious act on Judith occurred two years after his employment with TLC was terminated, Defendants did not owe Plaintiff a duty of care at the time of Cain's tortious act and therefore cannot be held liable on a cause of action for negligent hiring and retention."

CONSUMER CLASS ACTIONS: UNFAIR COMPETITION AND FALSE ADVERTISING

2009-05-19T20:04:44Z

In re Tobacco II Cases,--- Cal.Rptr.3d ----, 2009 WL 1362556, 09 Cal. Daily Op. Serv. 5993, Cal., May 18, 2009 (NO. S147345)

In a major victory for California consumers victimized by fraudulent advertising and business practices, the California Supreme Court ruled on May 18, 2009 that Proposition 64 does not impose new procedural and substantive proof requirements on consumer class actions. The long-awaited decision, In Re Tobacco Cases II, reversed a holding by a lower court which interpreted Prop. 64 as requiring that all absent class members affirmatively demonstrate injury caused by an unfair practice in order to proceed as a class action. This would have severely hindered lawsuits under California’s Unfair Competition Law (UCL) and False Advertising Law (FAL), which are designed to protect against unfair, unlawful and fraudulent business practices. Robinson, Calcagnie & Robinson senior partner Mark P. Robinson Jr., who argued the case before the Supreme Court on behalf of the Plaintiffs in the case, called the decision “a huge victory for the consumers of California." "This gives the consumers rights to protect themselves from fraudulent advertising,” said Robinson, former president of the Consumer Attorneys of California, who was named California Trial Lawyer of the Year by the American Board of Trial Advocates in 2008.

The suit was brought by smokers alleging that the tobacco industry defendants violated the UCL and FAL by conducting a decades-long campaign of deceptive advertising and misleading statements about the addictive nature of nicotine and the relationship between tobacco use and disease. However, the ruling will potentially impact all consumer class actions in California involving unfair competition, fraudulent and unlawful business practices, and false advertising. Justice Carlos Moreno, writing for the majority, found that interpreting the statutes amended under Proposition 64 to require all unnamed members of a class action to individually establish standing would "effectively eliminate the class action lawsuit as a vehicle for the vindication of such rights." The decision was immediately hailed by attorneys representing injured consumers."We want to congratulate the fine work done by attorney Mark Robinson, a renowned fellow trial lawyer, for his excellent work in arguing the case before the California Supreme Court" noted Audet & Partners, LLP founder William M. Audet. "Without a doubt, Mark Robinson's advocacy carried the day."

CONSTRUCTION ACCIDENTS: INDEPENDENT CONTRACTORS

2009-05-15T21:53:27Z

Tverberg v. Fillner Construction, Inc. (2008) 168 Cal. App. 4th 1278, 2008 WL 5102860

A man who was injured when he fell into a hole while installing a canopy at a construction site filed an action against the general contractor alleging causes of action and premises liability. The defendant moved for summary judgment based upon Privette v. Superior Court (1993) 5 Cal.4th 689, contending that it owed no duty of care to the plaintiff. In opposition to the motion, the plaintiff argued that he was not an employee of the subcontractor which had hired him, but rather, an independent contractor, and therefore Privette did not apply.

Even though both sides agreed that the plaintiff had been hired as an independent contractor, the trial court granted summary judgment. However, the court of appeal reversed, disagreeing with a contrary decision in Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1093-1096:

]]> "After careful consideration, we find the Tverbergs' reasoning to be persuasive, for several reasons. First, as we have noted, all of the Privette cases decided by the California Supreme Court involved plaintiffs who were identified as employees or who were said to have been covered by workers' compensation. None of the plaintiffs in these cases were independent contractors. (See Kinsman v. Unocal Corp., supra, 37 Cal.4th at p. 664; McKown v. Wal-Mart Stores, Inc., supra, 27 Cal.4th at p. 223; Hooker v. Department of Transportation, supra, 27 Cal.4th at pp. 202-203; Camargo v. Tjaarda Dairy, supra, 25 Cal.4th at p. 1238; Toland v. Sunland Housing Group, Inc., supra, 18 Cal.4th at p. 257; Privette, supra, 5 Cal.4th at p. 692.) This fact distinguishes the Tverbergs' action from one in which the injured plaintiff was an employee of a hirer's contractor.

Second, the California Supreme Court decisions all acknowledge that the Privette rule is grounded in the interplay of the workers' compensation system and the peculiar risk doctrine. A plaintiff entitled to workers' compensation benefits is limited to that remedy and may not also seek recovery from the hirer of his or her employer, for reasons of public policy.
. . .
when we make our own examination of the public policy reasons cited by Privette and its progeny in support of those decisions, we find that those reasons are inextricably connected to the interplay of the peculiar risk doctrine and the workers' compensation system.
. . .
These public policy reasons-applicable when the plaintiff is an injured employee-have no force when the injuries are suffered by an independent contractor.
. . .
Our reading of Lopez is one that is consistent with the result for which the Tverbergs argue in their appeal-that only a plaintiff who is entitled to apply for workers' compensation benefits is barred from bringing a successful action for damages against the hirer of the contractor who in turn hired the plaintiff.

For all these reasons, we conclude that the reasoning of Michael is inconsistent with controlling California Supreme Court authority, and that, as an independent contractor, Jeffrey Tverberg does not fall within the employee class of plaintiffs included within the scope of the Privette line of cases.

Because Jeffrey Tverberg was not an employee of Perry, Privette and its progeny do not apply to bar him from being able to seek recovery from Fillner."

GOOD SAMARITAN IMMUNITY: MEDICAL EMERGENCIES

2009-04-17T18:27:57Z

Van Horn v. Watson, (Supreme Court of California, December 18, 2008) 197 P.3d 164, 45 Cal.4th 322, 197 P.3d 164, 86 Cal.Rptr. 3d 350, 08 Cal. Daily Op. Serv. 15,199, 2008 Daily Journal D.A.R. 18,512

A woman who was injured in a motor vehicle collision filed suit against an acquaintance who had pulled her from the vehicle following the collision. The plaintiff alleged that she had only suffered an injury to her vertebrae, but that by dragging her out of the vehicle the defendant had caused permanent damage to her spinal cord, rendering her a paraplegic.

The defendant moved for summary judgment based upon Health & Safety Code section 1799.102, which provides that no person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The trial court granted summary judgment but the Court of Appeal reversed, finding that the defendant’s actions at the scene did not amount to the rendering of emergency care within the meaning of the statute.

The California Supreme Court affirmed the judgment of the Court of Appeal, holding that the Legislature intended for section 1799.102 to immunize only those persons who in good faith render emergency medical care:

]]> "[T]he Legislature made clear in numerous other statutes that it intended for the statutory scheme to address the provision of emergency medical care. For example, in section 1797.1, the Legislature declared that it is the intent of the Act “to provide the state with a statewide system for emergency medical services....” (Italics added.) In section 1797.6, subdivision (a), the Legislature declared that it is “the policy of the State of California to ensure the provision of effective and efficient emergency medical care.” (Italics added.) Indeed, nowhere in the Act's general provisions (Health & Saf.Code, div. 2.5, ch. 1, §§ 1797- 1797.8) is there any indication that the Legislature intended to address or affect the provision of nonmedical care. . . . Section 1797.5 thus establishes that the Legislature intended to encourage people to learn and provide emergency medical care (such as the cardiopulmonary resuscitation and first aid specifically identified in section 1797.5) to those in need. The Act's stated purpose supports construing section 1799.102 to immunize only those who render such emergency medical care at the scene of a medical emergency. . . . Torti's expansive interpretation of section 1799.102 would undermine long-standing common law principles. As we previously noted, the general rule is that “one has no duty to come to the aid of another.” (Williams v. State of California, supra, 34 Cal.3d at p. 23, 192 Cal.Rptr. 233, 664 P.2d 137.) As explained in the Restatement Second of Torts, “The origin of the rule lay in the early common law distinction between action and inaction, or ‘misfeasance’ and ‘non-feasance.’ ” (Rest.2d Torts, § 314, com. c, p. 116.) Courts were more concerned with affirmative acts of misbehavior than they were with an individual “who merely did nothing, even though another might suffer serious harm because of his omission to act.” (Ibid.)

While there is no general duty to help, a good Samaritan who nonetheless “undertakes to come to the aid of another ... is under a duty to exercise due care in performance....” (Williams v. State of California, supra, 34 Cal.3d at p. 23, 192 Cal.Rptr. 233, 664 P.2d 137, citing Rest.2d Torts, § 323.) As we explained in Artiglio v. Corning,“ ‘[i]t is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to a duty of acting carefully, if he acts at all.’ (Glanzer v. Shepard (1922) 233 N.Y. 236, 135 N.E. 275.)” (Artiglio v. Corning, supra, 18 Cal.4th at p. 613, 76 Cal.Rptr.2d 479, 957 P.2d 1313.)

The broad construction urged by Torti-that section 1799.102 immunizes any person who provides any emergency care at the scene of any emergency-would largely gut this well-established common law rule. As we recently noted, “ ‘[w]e do not presume that the Legislature intends, when it enacts a statute, to overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied.’ ”

PRODUCTS LIABILITY: REPLACEMENT PARTS

2009-03-25T00:58:04Z

Taylor v. Elliott Turbomachinery Co., Inc., (1st District, February 25, 2009), 171 Cal.App.4th 564, 90 Cal.Rptr.3d 414, 09 Cal. Daily Op. Serv. 2395, 2009 Daily Journal D.A.R. 2930

A former U.S. Navy sailor who had worked aboard the U.S.S. Hornet in the mid-1960s, filed an action against several manufacturers of equipment used in the ship’s propulsion system. The plaintiff contended that he had contracted mesothelioma as a result of his exposure to asbestos-containing parts contained within various metal valves and other components which he had serviced. Although the equipment had been installed in 1943 and all the asbestos-containing parts had been removed and replaced with parts made by manufacturers other than the defendants, the plaintiff contended that the original manufacturers had a duty to warn of the hazards arising from the foreseeable use of their products, as well as hazards arising from the combination of their product and products manufactured by others.

The trial court granted the manufacturers motion for summary judgment and the court of appeal affirmed, holding that the defendants owed the plaintiff no duty to warn of the dangers inherent in asbestos-containing products supplied by other manufacturers:

]]> "Other manufacturers cannot be expected to determine the relative dangers of various products they do not produce or sell and certainly do not have a chance to inspect or evaluate. This legal distinction acknowledges that over-extending the level of responsibility could potentially lead to commercial as well as legal nightmares in product distribution. And California cases have acknowledged the need for this restraint. . . . Respondents were not part of the “chain of distribution” of the gaskets, packing, discs, and insulation that Mr. Taylor encountered during his service on the Hornet in the 1960s. It is undisputed that all of the original asbestos-containing materials that may have been supplied when respondents delivered their equipment to the Navy in 1943 had been removed by the time Mr. Taylor served aboard the Hornet. Even if respondents were part of the chain of distribution of these original materials, they were certainly not part of the chain of distribution for the asbestos-containing materials to which Mr. Taylor was exposed. . . . Our review of both the case law and relevant policy considerations persuades us that respondents have the better of this argument. Although a manufacturer may owe a duty to warn when the use of its product in combination with the product of another creates a potential hazard, that duty arises only when the manufacturer's own product causes or creates the risk of harm. . . . Thus, to date, California case law has not imposed on manufacturers a duty to warn about the dangerous propensities of other manufacturers' products. California courts will not impose a duty to warn on a manufacturer where the manufacturer's product “did not cause or create the risk of harm.” . . . Adopting the rule Mrs. Taylor advocates would extend potential liability for failure to warn to persons far outside of the distribution chain of the defective product. Defendants whose products happen to be used in conjunction with defective products made or supplied by others could incur liability not only for their own products, but also for every other product with which their product might foreseeably be used. The policy considerations that militate against imposition of strict liability in this situation apply with equal force in the context of negligence."