Archive for July, 2011


Arbitrator does not need to disclose facts about his religion and family background where such facts were entirely irrelevant to case. Herbert Rebmann v. Peter Rohde, (No. G043665 California Court of Appeal, June 28, 2011).

Defendants sought to overturn an arbitration award based upon the religious family background of the arbitrator.  Defendant learned following his unsuccessful arbitration that the arbitrator’s parents were German/Jewish escapees who lost family and property in the Holocaust.  The defendant’s father served in German during World War II and his wife’s father was in the SS.  The arbitrator’s family background and religion was not disclosed prior to the arbitration.  The defendant asserted that the arbitrator should have disclosed his religious and cultural affiliations.  The trial court confirmed the award and denied the petition to vacate the arbitration award.


The appeals court
affirmed.  Under Code of Civil
Section 1281.9, an arbitrator must disclose all matters that
could cause a person to reasonably entertain a doubt that the proposed
arbitrator would be able to be impartial.
If the arbitrator’s family and background could cause a reasonable
person to entertain a doubt as to his ability to be impartial, vacation of the
arbitration award is required.  This
court found that there was nothing in the arbitrator’s professional record that
indicated bias toward anyone and that the defendant merely relied on the arbitrator’s
family history, rather than anything he said or did with regard to his
petition.  Further, the appeals court
held that the arbitrator’s background was entirely irrelevant to the case
before him.  The defendant’s history was
unknown to the arbitrator at the time of the arbitration.  Hence, the defendant’s argument was without


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Vexatious Litigant

Defendants may not seek dismissal of action filed by vexatious litigant who filed litigation through counsel but lost representation while action was pending. Joseph L. Shalant v. Thomas V. Girardi, (No. S182629 California Supreme Court, June 23, 2011).

This case stands for the proposition that a vexatious litigant will not be found to violate a prefiling order under California Code of Civil Procedure Section 391 if the action was filed through counsel, even if the action is continued in pro per.  California Code of Civil Procedure Section 391.7 prohibits a vexatious litigant from filing any new litigation in pro per in the courts of California without the approval of a presiding judge of the court in which the action is filed.

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Court may not admit evidence of employee’s driving record supporting plaintiff’s negligent hiring claim where employer has already admitted vicarious liability. Dawn Renae Diaz v. Jose Carcamo, (No. S181627 California Supreme Court, June 23, 2011).

The California Supreme Court determined that a plaintiff cannot pursue negligent hiring and retention claims against a defendant if the defendant admits vicarious liability for any negligence of its employees.  Hence, the defendant would be entitled to have the judge exclude evidence of those claims including in this case a poor driving record and employment history, the driver’s dishonesty, his status as an illegal alien, and the resultant use of a “phony” social security number to obtain employment.  In overturning a 60-year-old case, Armenta v. Churchill (1954) 42 Cal.2d 448, the California Supreme Court indicated that marked changes have occurred in California Law on the allocation of liability for tort damages among multiple wrongdoers.  In particular, the elimination of the “all or nothing” system of tort liability with a comparative fault system has now modified California tort law so that the Armenta holding would be inappropriate.

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Attorney does not have duty to explain attribution clause in new fee agreement where clients failed to carefully read agreement and were sophisticated businesspersons. Desert Outdoor Advertising v. The Superior Court of San Francisco City and County; Gerald M. Murphy, (No. A129051 California Courts of Appeal, First Appellate District, Division One, June 17, 2011).

This case stands for the proposition that a lawyer does not have a fiduciary duty to separately explain and arbitration clause to his clients so that the clients admitted failure to fully read the agreement is “reasonable” and a basis to avoid arbitration.  Under the circumstances of this case, clients who were described as sophisticated businesspersons, the appeals court concluded that there was no duty to separately explain the arbitration clause.

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Confidential Patient Information

Fair Credit Reporting Act does not preempt state law claims alleging that debt collector illegally disclosed confidential patient information to consumer reporting agencies. Roberta Brown v. Stewart Mortensen, (No. S180862 California Supreme Court, June 16, 2011).

In this case, the California Supreme Court addressed the remedies available to a patient when a debt collector, acting on behalf of a medical professional, is alleged to have disclosed confidential patient medical information to various consumer reporting agencies in the course of a dispute
over an alleged medical debt.  Plaintiff, a dental patient, refused to pay for dental services related to a crown that he claimed he never agreed to pay for.  The dentist referred the debt to a collection agency (Defendant).  The debt collection agency disclosed the contents of the patient’s dental charts to three major consumer reporting agencies.  The patient ultimately sued the defendant, alleging violations of the California Confidentiality of Medical Information Act (Act). The trial court sustained a demurrer and the Court of Appeal affirmed finding that the Fair Credit Reporting Act (FCRA) preempted all state law claims arising from the furnishing of information to consumer reporting agencies.

The Supreme Court reversed and remanded the matter.  It found that the FCRA imposed affirmative duties on furnishers such as the defendant to ensure that commercial credit information is maintained in a manner that is fair with regard to its confidentiality.  Notwithstanding, the FCRA would only preempt State law claims insofar they as arose out of a duty to provide accurate information or to take action upon which notified of a dispute.  The plaintiff’s complaint was neither based on accuracy, nor a credit dispute resolution and thus the FCRA was found not to preempt the plaintiff’s State law claims.

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Wrongful Death Claim

Court errs in abating administrator’s wrongful death and survival actions since petitioner need not join all heirs and claims survive decedent’s death. Nancilee Adams v. The Superior Court of Los Angeles County, (No. B229437 California Courts of Appeal, Second Appellate District, Division Three, June 2, 2011).

In this case, the petitioner/plaintiff filed a petition with the appeals court seeking to vacate a trial court’s order abating the plaintiff’s wrongful death and survival causes of action because the
plaintiff, decedent’s representative did not join all known heirs under Code of Civil Procedure Sections 377.60 and 382. The appeals court held that the trial court erred in abating plaintiff’s
wrongful death cause of action and survival causes of action.  In so holding, under Code of Civil
Section 377.60, the heirs of the decedent or a personal representative may bring a wrongful death action on behalf of the decedent’s heirs, but not both.  The decedent’s personal representative of successor-in-interest may commence a survival action.  A pending action does not abate by death if the cause of action survives. Here, the plaintiff’s role as administrator was the same as acting as trustee to recover damages for the benefit of the heirs.  Her role was not inconsistent with her position as an administrator because she remained a fiduciary of the
heirs.  As such, she did not need to join heirs as a party.  Because abatement of the wrongful death action was improper, the trial court had no basis for abating the survival causes of action as well because the decedent’s causes of action survived and the plaintiff had the right to be substituted in place of the decedent in those actions.  Thus, the court erred in abating the plaintiff’s claim.

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Tort Claims Act

Notice of claim sent to department of defendant-entity, charged with managing entity’s claims, substantially complies with Government Claims Act requirements. Hope DiCampli-Mintz v. County of Santa Clara, (No. H034160 California Courts of
Appeal, Sixth Appellate District, Division Three, May 26, 2011).

Plaintiff brought an action alleging she suffered injuries as a result of negligent medical treatment by two physicians working for the County of Santa Clara at a district hospital.  The County moved for summary judgment on the grounds that plaintiff’s delivery of notice of claim to the Risk Management Department at the hospital did not comply with requirements of Government Code Section 915 and associated statutes.  The trial court granted the motion.

The appeals court reversed, joining the courts of several other states in holding that delivery
of a pre-suit government claim to a department of the target entity charged with defending or managing claims against that entity may constitute substantial compliance with the claims requirement, so long as the purposes of the act are satisfied and no prejudice is suffered by the defendant.  In reaching this conclusion, the appeals court declined to follow recent authority effectively repudiating the long standing doctrine of substantial compliance as applied in this context.


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Offer to Compromise

Expert witness fees award pursuant to offer to compromise is improper because offer was not valid under statute due to lack of provision for acceptance. Antonio Puerta v. Anna Berta Torres, (No. G043745 California Courts of Appeal, Fourth Appellate District, Division Three, May 25, 2011).

This case involves a offer to compromise pursuant to California Code of Procedure Section 998 where it was claimed that the offer did not include a provision for acceptance.  The trial court determined that the offer was sufficient and awarded the defendant attorney’s fees.

The appeals court reversed in part.  It found that the offer by the defendant did not have a provision regarding acceptance as specifically set forth under the statute.

 A section 998 offer shall include a statement of the offer and must include a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.  Here, the offer only included the terms of the offer and the expiration date, by nothing about a provision stating that the plaintiff can accept the offer.  The offer was therefore found invalid regardless of whether the plaintiff even intended to accept the offer or not.  The appeals court found that the trial court had erred in awarding the defendant expert witness fees.

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Loss of Consortium

Husband suffers compensable claim for loss of consortium despite testimony that his relationship with his wife was not hurt after accident. Donald Mealy v. B-Mobile, (No. B226243 California Courts of Appeal, Second Appellate District, Division Three, May 24, 2011).

In this case, the plaintiff’s husband filed a loss of consortium claim with regard to his wife’s injury producing accident wherein she suffered complete paralysis of both legs. Plaintiff became her full-time caretaker.  He testified that he loved his wife after the accident and when asked if the relationship was hurt, he responded in the negative.  The trial court denied relief for loss of consortium.

The appeals court reversed.  It found that a person who suffers a loss of a diminution of consortium as a result of negligent injury to his spouse is entitled to recover damages from the tortfeasor.  Here, the husband’s overall satisfaction with his marital relationship did not negate any loss of consortium claim he had against the defendants.  The trial court’s narrow focus on the husband’s testimony improperly obscured the obvious loss of consortium on the record.  His wife’s debilitating injury impaired her mobility and limited her independence, which now required him to care for her around the clock.  The injured wife could no longer provide the same conjugal society to the husband as she once could and the husband clearly suffered a loss of  consortium despite the overall satisfaction with the marriage.


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Court properly imposes sanctions against attorney for knowingly violating order forbidding attorney from asking witness about specific issues. Scott C. Moody, Inc. v. Starr Surgical Company, (No. G043230 California Courts of Appeal, Fourth Appellate District, Division Three, May 23, 2011).

In this case, the trial court made a ruling at sidebar that counsel should not inquire into a articular area. Counsel proceeded to do exactly what the court ordered him no to do.

The trial court found counsel knowingly violated its order and imposed a $1,500.00 sanction under Code of Civil Procedure Section 177.5.  The appeals court affirmed the trial court’s order.

The appeals court found that under California Code of Civil Procedure 177.5 “a judicial officer
shall have the power to impose reasonable money sanctions not to exceed $1,500.00, notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification.  This power shall not apply to advocacy of counsel before the court.  For the purposes of the section, the term “person” includes a witness, a party, a party’s attorney or both.

The sanctioned attorney contended that his question was protected by the advocacy section in the above-referenced statute.  The appeals court found it “quite obvious” that the sanctioned attorney’s question was not “act or pleading, arguing, supporting or recommending a particular position or idea”, but a calculated decision to violate the court’s order.

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