The hirer of an independent contractor may, despite the Privette doctrine, be liable for injuries suffered by the contractor's employees if the hirer furnishes faulty equipment and asks or requires the contractor or its employees to use that equipment. But not so if the hirer merely allows the contractor or its employees to use the faulty equipment. In the latter… Read More
The trial court correctly granted the defendant water pipe (hookah) manufacturer judgment on the pleadings against plaintiff's claim that it violated Prop. 65 by failing to warn that if used to smoke marijuana, the hookah would expose the smoker to marijuana smoke that contains carcinogens. The opinion follows regulations implementing Prop. 65 in holding that the proposition covers only products… Read More
The trial court erred in granting defendant summary judgment based on expiration of the statute of limitations (CCP 340.5) in this medical malpractice case arising from a stillbirth following an operation to turn the fetus to a head-down position for birth. There was a question of fact as to whether plaintiff subjectively suspected malpractice the day before delivering the stillborn… Read More
During construction of a development in South Lake Tahoe, a worker for a subcontractor slipped on an icy floor, falling from a ladder and injuring himself. This decision holds that the trial court granted defendant summary judgment based on the Privette doctrine which bars claims by an injured worker for an independent contractor against the hirer of that contractor. This… Read More
The police owe a duty of care in employing deadly force. However, that duty applies only where it is the police's use of force that kills or injures the plaintiff, not where, as in this case, the police's use of force triggers another person to engage in violence that kills or injures the plaintiff. Here, the police fired at an… Read More
(A school district did not owe students a duty of care to prevent a teacher's husband from entering the classroom and killing her in front of her students, thus causing the students emotional distress. The husband's violent criminal behavior was not reasonably foreseeable, as he had previously visited his wife at the school without incident. Also, protecting against this sort… Read More
(The Federal Tort Claim Act's discretionary function immunity did not shield the United States from liability for the alleged conduct of its employees in maliciously instigating false state court criminal charges against plaintiff (in retaliation for her whistleblowing). The employees' alleged conduct in knowingly lying under oath, tampering with witnesses, or fabricating evidence to support the false criminal charges had… Read More
This decision reverses a JNOV and new trial order overturning a jury verdict for plaintiff in this slip and fall accident caused by liquid on the floor tile of the defendant restaurant. The plaintiff offered a reasonable explanation for how the ten foot long, ten inch wide strip of liquid got on the floor in a location leading past the… Read More
Under Civil Code 846, landowners are generally immune from liability for personal injuries suffered by persons entering their property for recreational use. There is an exception to that immunity if the plaintiff was "expressly invited rather than merely permitted to come upon the premises by the landowner." This decision holds that despite the statutory wording, immunity is lost if the… Read More
The FCC's regulation governing the standards for the permissible amount of radio frequency emission from a cellphone (47 C.F.R. § 1.1310(c)) preempt plaintiff's state law claims that Apple's iPhones are unsafe even though they conform to the FCC's standards. The FCC issued its regulation under the broad authority that Congress conferred on it in the Federal Communications Act of 1934. … Read More
Silver, a Hollywood executive, took his chef and an executive assistant, Musgrove, with his family for their vacation on Bora Bora. The chef met Musgrove after hours and gave her alcohol and cocaine, after which she went swimming and drowned. This decision holds that Silver is not vicariously liable for the chef's after hours activities with Musgrove under any of… Read More
Since 2010, the public disclosure bar to a False Claims Act qui tam action (31 USC 3730) has applied to public disclosure of the same claim in an "other" Federal "hearing." This decision holds that ex parte patent prosecutions before the Patent Office are other hearings for this purpose. The statute was intended to encompass public disclosures made in federal… Read More
The trial court properly awarded plaintiff elder enhanced damages and attorney fees under the Elder Abuse Act based on defendant's depriving plaintiff of her right under Los Angeles' rent control law to re-rent her apartment after the defendant landlord returned it to the rental market within five years after evicting plaintiff under the Ellis Act. The statutory right to re-rent… Read More
Summary judgment for defendant hospital is affirmed. The doctor who malpracticed in conducting an operation on plaintiff at defendant hospital was not the hospital's actual agent. The contract between the two expressly denied any agency or employment relationship, and there was no evidence that the hospital exercised any control over the manner in which the doctor treated his patients. The… Read More
The Right to Repair Act contains three provisions regarding roofs. Civ. Code 896(g)(3)(A) states that manufactured products, including roofs, shall be installed so as not to interfere with the products’ useful life, if any. Section 896(g)(3)(C) defines "manufactured products" to mean one assembled, in full, off-site. Section 896(a)(4) states that roofs shall not permit water to pass around or through… Read More
The favorable termination element of a malicious prosecution action may be satisfied if one or more of the claims alleged in the underlying action was dismissed on the merits--even if other claims were dismissed for procedural reasons (such as the bar of the statute of limitations). Here, several of the claims in the underlying action were dismissed as time-barred, but… Read More
The Feres doctrine (Feres v. United States (1950) 340 U.S. 135, 146) which holds that the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to military service does not immunize a general or the Government from liability for the general's alleged sexual assault… Read More
The district court erred in granting defendant summary judgment in this False Claims Act case. A genuine issue of triable fact existed as to whether defendant's use of the "KX" modifier in its Medicare reimbursement claims was material. The modifier indicated compliance with local coverage determinations. That certification was false, and it would be material if the trier of fact… Read More
Defendant did not owe a duty of care to plaintiff to protect him from falling from a steeply slanted roof covered with broken, slippery clay roof tiles. The roof's danger was open and obvious. It was not foreseeable that plaintiff, who was neither required nor invited to climb on the roof, would confront that obvious danger. He did so while… Read More
Fraud in factum, in execution or in the inception differs from promissory fraud, which is a false promise. Fraud in execution occurs when the defendant causes the plaintiff to execute a contract that has materially different terms from those on which the parties orally agreed. To allege a claim for fraud in execution, the plaintiff must allege facts showing the… Read More
