Civil Action with Brian & Shant

Join Anastasia Mazzella and Shant Karnikian as they discuss how attorneys can best utilize expert witnesses in their cases. They are joined by a highly respected expert witness in the field of neuropsychology, Dr. Dominique Kinney. In this episode, Dr. Kinney gives attorneys 6 tips on how to make the attorney-expert relationship more productive, including the importance of choosing the right expert early in the litigation and providing them with ample time to review records, why attorneys need to listen more and talk less when they meet with experts, the best way to prepare experts for depositions, and more. She also discusses why an expert witness is not meant to be a “team player” but rather an impartial authority who can be trusted to tell the truth. If you want a copy of Dr. Kinney's Tips for Maximizing the Attorney-Expert Relationship, please reach out to Anastasia at am@kbklawyers.com.   To contact Dr. Kinney about her services: 888-888-5902 Email: experts@arrowheadeval.com Website: California Independent Medical Evaluation Services | AES (arrowheadeval.com)   For other questions reach out to:  Brian Kabateck: bsk@kbklawyers.com Shant Karnikian: sk@kbklawyers.com For more information about Kabateck LLP, visit www.kbklawyers.com   

Brian and Shant discuss three hot topics in the law starting with the concern that the ability to appear in court virtually in many circumstances could be on the chopping block. COVID made remote appearances a normal occurrence and have made work done by lawyers and the courts much more efficient. But the statute that allows for remote appearances was set to end July 1 and that would be disastrous for an already strained court system.  Can Chat GPT write briefs for you? Technically yes, Chat GPT will write anything you ask it to, but there's more to be aware of.  Lastly the conversation shifts to a bill signed by Gov. DeSantis that caused sweeping tort reform in the state of Florida and the implications that bill could have on a national stage if DeSantis wins the Republican nomination. Tort reform has long been a target of Republicans and DeSantis showed that he is willing to dismantle many laws that protect people's rights to recoup damages when they are hurt or wronged.   Brian Kabatek: bsk@kbklawyers.com Shant Karnikian: sk@kbklawyers.com For more information about Kabateck LLP, visit www.kbklawyers.com

In this episode Shant and Marina Pacheco connect with Alexandra Steele Cooper about what it's like to go out on your own and start a new firm. Alexandra spent several years at a large firm as a trial lawyer before starting her own firm, Steele Cooper Law where she focuses on personal injury and employment law. She has recovered tens of millions of dollars for her clients.  Hear how she prepared to open her own firm, the upsides of being your own boss, as well as, the drawbacks and how she uses a network of talented lawyers and support (including her husband) to help her when she has questions about her cases. She explains how she re-imagined herself with her own firm and what the process was like.   Visit Steele Cooper law Check out the helpful site Alexandra mentioned Lawyerist Marina Pacheco: mrp@kbklawyers.com Shant Karnikian: sk@kbklawyers.com For more information about the firm, Kabateck LLP, visit www.kbklawyers.com 

This episode, Anastasia Mazzella, partner at Kabateck LLP, sits down with Leadership Coach (and friend) Dr. Sohee Jun to talk about imposter syndrome. Imposter Syndrome is a pervasive feeling in many professions but is noticeably acute in the law and particularly affects women and people of color.  Women make up a small percentage of leadership roles in law firms and are paid less than men and against this backdrop Sohee and Anastasia talk about what Imposter Syndrome is and how to combat it as you progress in your career. Sohee breaks down some key ways to identify the feeling and how to overcome it.  Visite Dr. Sohee Jun's website Anastasia Mazzella: am@kbklawyers.com For more information about the firm, Kabateck LLP, visit www.kbklawyers.com

Brian and Shant discuss the crisis created by the lack certified court reporters in California. The shortage means that many cases don't get a court reporter or that lawyers and clients are spending thousands of dollars to hire a private court reporter.    Why has this happened? Two reasons: First, the passage rate for the court reporter certification exam is painfully low, around 20%. Second, the union which represents the court reporters continues to block any effort to use electronic recording or transcriptions as an alternative. They claim the technology isn't good enough, which is false. The result is impending crisis where many people don't have access to justice.   Next Brian and Shant talk about Disney's lawsuit against Ron DeSantis. DeSantis recently revoked Disney's rights of governance over their property area called Reedy Creek. Some people say it's a trumped up lawsuit that won't go anywhere, but Brian and Shant say that the “takings clause” in the 5th Amendment is very strong and that DeSantis's blatant public comments about retaliating against Disney for disagreeing on his stance on LGBTQ+ rights makes the lawsuit meritorious and could spell trouble for DeSantis.      Brian Kabatek: bsk@kbklawyers.com   Shant Karnikian: sk@kbklawyers.com   For more information about the firm, Kabateck LLP, visit www.kbklawyers.com   

Brian and Shant speak with attorney Gary Partamian, who focuses on cases of childhood sex abuse. They discuss the changes to CCP 340.1 and how to possibly file a case on behalf of a client who is over 40 years old and suffered sexual abuse as a child. Learn about the importance of working with prospective clients in these cases to confirm that they qualify under the strict requirements of CCP 340.1 to bring a case despite their age--including issues that could be fatal to their potential case.   You'll also hear, more generally, how to work with a client in cases of abuse and trauma and how important empathy, patience, and understanding is when helping clients through these types of cases.    Brian Kabatek: bsk@kbklawyers.com Shant Karnikian: sk@kbklawyers.com For more information about the firm, Kabateck LLP, visit www.kbklawyers.com

Today our intake attorney Annie Martin-McDonough brought a fascinating topic to our attention with the “tort of seduction.” In the 1700's this was a tort that allowed for the father of a daughter to sue a man, who had seduced and impregnated the woman, for loss of services.   Later in the Victorian era the tort evolved to allow a woman to sue for emotional damages due to a loss of virtue if a man tricked her into a sexual relationship.  Annie, Shant and Brian discuss how the tort differed from sexual assault and the history of the tort being abolished in many states starting in 1935 due to some reasons that were pro-women's rights and other reasons that could be seen as sexist towards women.  The tort still exists in many states today, though it is very rarely brought to court. Annie gives her argument and examples for the positive uses the tort could have today.    Brian Kabatek: bsk@kbklawyers.com   Shant Karnikian: sk@kbklawyers.com For more information about the firm, BK Law, visit www.kbklawyers.com  

Join the conversation this episode with Anastasia Mazzella and Marina Pacheco, partners at Kabateck LLP, about their experiences and thoughts on gender bias in the legal field. They'll identify specific situations they've encountered and share observations on how improvements can be made to minimize the issues going forward. While 47% of lawyers at the associate level were women, that number drops to 22% at the partner level. Anastasia and Marina discuss with Shant Karnikian, opportunities to keep more women practicing law including more equitable pay, more supportive environments that focus on a better work-life balance, and addressing biases people may not even be aware they have.  This is a must share episode that goes beyond the topics traditionally discussed on the show.      Anastasia Mazzella: am@kbklawyers.com Marina Pacheco: mrp@kbklawyers.com Shant Karnikian: sk@kbklawyers.com   For more information about the firm, visit www.kbklawyers.com

Brian and Shant speak with partner Stephanie Charlin on figuring out the policy limits of a party responsible for an injury.  Currently, the law dictates that insurance companies are not required to release policy information until a case is filed and the information is requested during discovery. This is often a waste of time for plaintiff lawyers, the courts, and the victims, particularly if the policy has minimal coverage.  They also discuss how to make sure you check to see if a defendant has additional policy coverage, aside from their primary insurance.  If you have any questions about insurance or how it may impact your catastrophic injury cases, please reach out to us:  Brian Kabatek: bsk@kbklawyers.com Shant Karnikian: sk@kbklawyers.com For more information about Kabateck LLP, visit www.kbklawyers.com  

Can you pop the lid on a UM/UIM policy? Join hosts Brian Kabateck and Shant Karnikian as they invite attorney Barrett Alexander of Kabateck LLP to talk about the difference between a third-party bad faith claim and a UM/UIM bad faith claim.  What legal remedy and rights does the injured party have in each context?  Hear specific case examples about how this is done and what the future may hold when it comes to bad faith negotiations with the insuring entities.    

Brian, and Shant sit down with attorney Marina Pacheco of Kabateck LLP to discuss the complicated world of filing childhood sexual assault cases. Of particular importance is a deadline regarding the statute law CCP 340.1 (sec Q), which starting in January 2020 gave a three year window for people to file a childhood sexual assault case if they were ineligible to do so under previous laws and statutes. That provision is set to expire at the end of 2022. This primarily affects people over the age of 40 who were aware that their psychological injury was caused by the sexual assault for more than five years before the case was filed. After the expiration of the three year revival window, people over the age of 40 will still be able to file old cases, as long as they can demonstrate that they had not been aware of the abuse more than five years before the filing, meaning the memories were either repressed or the person was unaware that what they experienced would qualify as sexual abuse. The process to file a childhood sexual assault case for people who are over the age of 40 is a complicated process which requires proof of merit from a mental health professional plus proof of merit from an attorney. Marina breaks down the complicated provisions in a very detailed and worthwhile explanation.

Today Brian and Shant discuss why businesses and corporate America tend to support conservative Supreme Court justices... spoiler alert: they don't care about social issues. While big businesses often take more progressive stances on hot-button social issues like abortion and gay rights, businesses nevertheless fund conservative agendas so they can ensure a legislature and judiciary who are going to take more “pro-business” stances on cases, whether they involve consumer protection, workers rights, or the enforcement of arbitration.  Brian and Shant discuss some of the historical arc of pro-business decisions including the recent West Virginia v. Environmental Protection Agency in 2022 which limits the power the EPA has to regulate carbon emissions and the AT&T Mobility LLC v. Concepcion in 2011 which expanded the scope of the Federal Arbitration Act to say that companies could in fact include class action waivers in their arbitration agreements with employees and consumers, even if it is against state law.  Hear how a conservative court isn't always consistent on issues of State vs Federal law, often ruling in favor of reducing states rights when it comes to regulations on business but then shifting power back to the states when it comes to social issues or individual freedoms.  Finally, hear their thoughts on why Democrats have had a difficult time with their political messaging and how they can turn things around in hopes of eventually shifting the court to be less packed with conservative leaning justices.     

With the California Private Attorneys General Act in the news again after the Supreme Court decision on Viking River Cruises, Inc. v. Moriana, Brian and Shant dive into what the decision means for the future of PAGA and how it may be enforced now that the Federal Arbitration Act can preempt the California law in certain situations.  They also discuss what might happen if enough signatures are collected to put PAGA on the chopping block in the 2024 election, including legislative compromises that would keep PAGA intact but attempt to reduce abuses, particularly those aimed at small businesses.  Lastly, Brian and Shant discuss a ruling by the California Fourth District Court of Appeals in the case, Estrada v. Royalty Carpet Mills, Inc., which held that PAGA cases could not be dismissed by the court because of manageability issues, which is in direct opposition to the Second District Court's ruling in Wesson v. Staples the Office Superstore, LLC in 2021.  Since PAGA claims are meant to act in the stead of the California Labor & Workforce Development Agency, the court said that cases cannot be thrown out due to manageability concerns because, “the LWDA is not subject to a manageability requirement when it investigates Labor Code violations and assesses fines internally,” thus PAGA claims can not be subject to manageability requirements either. The case will now head to the California Supreme Court and Brian and Shant give their predictions on where the court will land. 

Today Brian and Shant are joined by jury consultant Harry Plotkin. Harry has been a consultant for over 20 years and works with civil prosecutors in consumer cases. He has selected juries in 42 cases that resulted in eight-figure awards since 2013 and has consulted in over 1,000 cases nationwide in his career. Brian, Shant and Harry talk about what to look for in prospective jurors, whether conservatives or liberals make for better jurors in civil cases and how important it is to get prospective jurors answering open ended questions to get a sense of how they feel about the law.  They also cover juries in the age of COVID and Zoom, how anger and mistrust during COVID has been good for prosecutors trying cases against big corporations and how difficult it is to pick a jury when everyone is wearing a mask...pros and cons. You can reach out to Harry with any questions you may have at: harry@yournextjury.com or visit his website www.yournextjury.com.  If you have any questions about jury selection or have any other interesting cases or questions you would like to please reach out to us.  Brian Kabatek: bsk@kbklawyers.com Shant Karnikian: sk@kbklawyers.com For more information about the firm, BK Law, visit www.kbklawyers.com

Brian Kabateck and Shant Karnikian discuss the current situation for law students with their guest, Michael Waterstone, Dean of Loyola Law School, Los Angeles.  Graduates of Loyola Law School themselves, Brian and Shant speak with the Dean on where law school and law practice is headed, the effects of the pandemic on teaching and students, and the outlook for jobs in the legal field for Loyola Law School graduates.  (hint: it's very good!)   For more information on Loyola Law School Los Angeles visit www.LLS.edu. To reach Dean Waterstone via email: Michael.waterstone@lls.edu.   To learn more about Kabateck LLP visit www.kbklawyers.com.

What would happen if in the middle of a huge personal injury case, where there might be a huge recovery, the Plaintiff and their spouse decide to get divorced? What if a couple's home burns down and in the middle of the lawsuit against the tortfeasor, they decide to call it quits as a couple?  These are the fascinating intersections of family law and personal injury cases that we sometimes encounter. Brian and guest host Stephanie Charlin talk with Ronald Brot. Ron has been a respected family law attorney for over 30 years and is the immediate past president of the Los Angeles County Bar Association.  We discuss what happens when you sign up a divorced couple as clients or when married clients split up in the middle of the case. Is the recovery still community property? What happens to the loss of consortium claim? Do you still work the case if they can't agree to both be represented? What does “date of separation” really mean in family law? All these questions and more are answered.  Contact Ronald Brot at brot@bgfllp.com or visit https://bgfllp.com/  Brian Kabatek: bsk@kbklawyers.com Stephanie Charlin: sc@kbklawyers.com For more information about Kabateck LLP, visit www.kbklawyers.com

While the Court of Appeal issues opinions that continue to jeopardize PAGA, corporate lobbyists have drafted a proposed ballot initiative that would kill PAGA entirely. Brian and Shant address a recent court ruling as well as proposed legislation that may significantly weaken or even eliminate the use of the Private Attorneys General Act (PAGA) in California. In September, the Second District Court of Appeal, in the case of Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, held that trial courts had the right to determine whether a PAGA case is manageable and that a defendant's right to present an affirmative defense must be taken into account. Brian and Shant discuss the common tactic defense attorneys take to make a PAGA case as unmanageable as possible by presenting an affirmative defense to each individual employee present in a PAGA claim, which means asking the court to hear from hundreds or even thousands of employees in a case—rendering a case unmanageable.  Next, Brian and Shant discuss a recent “request for title and summary filing” (a pre-requisite for a ballot initiative) with the State's Attorney General of a bill that would effectively eliminate PAGA. It would not preclude workers from acting on behalf of other aggrieved workers who have faced workplace violations, but it would also preclude lawyers from representing aggrieved workers under the PAGA statute. Instead, workers would be expected to file their own individual claims without the assistance of legal representation or to wait for the state itself to take on their case.  If you have any questions about PAGA cases or have any other interesting cases or questions you would like to please reach out to us.    Brian Kabatek: bsk@kbklawyers.com   Shant Karnikian: sk@kbklawyers.com

Brian and Shant revisit the standards for bad faith and opening up the lid on a policy. They discuss two recent cases from the California Court of Appeal:  Pinto v. Farmers Insurance Exchange (2021) 61 Cal.App.5th 676 and  Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833. For more information visit www.kbklawyers.com

Brian and Shant discuss Defense Preclusion, Tolling of Legal Malpractice SOL, Cost of Proof on a Prevailing RFA, and Juror Contact. Lucky Brands v Marcel Fashion (2nd Ct. of Appeals)A Defense Not Previously Raised is Precluded from Future Assertion Nguyen v Ford (6th DCA)In a Legal Malpractice Case, Tolling Only Applies to a Specific Subject Matter in the Particular Matter at Issue Universal Home Improvement Inc. v. Robertson (1st DCA)Recovery of Attorney Fees When Failing to Admit an RFA DeHoyos v Superior Court (4th DCA)Communication with Jurors Governed by the CCP, Not by a Universal Code of Criminal Procedure 

Brian and Shant discuss Insurance Cases the Duties of the Insureds, the Genuine Dispute Doctrine, Forum Selection Clause in an Insurance Contract, and Vertical versus Horizontal Exhaustion in Insurance Policies. Mosley v. Pac SpecialtyFarming Operation Exclusion Precluding Recovery for Fire Destroying the Property 501 E 51st Street v Kookmin Best Ins.Captive Experts and the Genuine Dispute Doctrine Lewis v. Liberty Mutual (9th Circuit)A Change in Policy, Insurance Code 678.1(d), and Forum Non-Conveniens Montrose Chemical v. S.C. (Cal. Sup. Ct.)Elective Stacking—Multiple Primary Policies Used to Exhaustion Allows Access to Others Stacked Above

Brian and Shant discuss vandalism and civil unrest with Michael Childress, Of Counsel at Kabateck LLP.  Large and small business from around the country took a hit in the wake of protests related to the death of George Floyd and the Black Lives Matter movement. Brian, Shant, and Michael discuss how these events have impacted property insurance policyholders, the damage that ensued, and how to better understand the claims process.

Brian and Shant discuss Personal Injury Cases that involve the Standard on Summary Judgment and a Continuance when Discovery is Outstanding; Joint and Several Liability Principles; a Primer on 998 Offers; and the Recovery of Emotional Distress Damages in a Breach of Contract Dispute. Insalaco v Hope Lutheran Church (1st DCA)MSJ Standards and a Continuance when Discovery is Outstanding Shuler v Capital Agricultural (2nd DCA)A Reduction in Damages Subject to Joint and Several Liability Anthony v Li (1st DCA)A Foreign National Insured by a Rental Car Policy and What Party Should Respond to the 998 Robertson v Saadat (2nd DCA)Recovery of Emotional Distress Damages in a Breach of Contract Dispute

Brian and Shant discuss Attorney Fees in Lemon Law Litigation; a Civil Rights Matter; an Elder Abuse Case; and in Class Actions. Mikhaeilpoor v BMW of North America (2nd DCA)Under Song-Beverly Attorney Fees are Mandatory for Prevailing Plaintiff Attorney Vargas v Howell (9th Circuit)A Civil Rights Matter Involving a Minor and An Unfavorable Ruling for Attorney Fees Arace v Medico Investments (4th DCA)An Elder Abuse Statute Requiring Mandatory Attorney Fees In Re Optical Disk Drive Products (9th Circuit)Fee Application Including a Handful of Attorney Teams with a Sealed Bid Containing a Cap on Fees

Brian and Shant discuss Unconscionability and the Unenforceability of Arbitration Agreements; the Inability to Arbitrate PAGA Claims; and Reviewing Arbitration Awards—Vacatur of Award Dougherty v. Roseville Heritage (5th DCA)Substantive Unconscionability and a Provision Limiting Elder Abuse Remedies in An Elder Abuse Case Dennison v. Rosland Capital (2nd DCA)How Lack of Mutuality is Unconscionable Brooks v. AmeriHome Mortgage (6th DCA)The Inability to Arbitrate PAGA Claims VVA-Two LLC v. Impact Development Group (2nd DCA)Reviewing Arbitration Awards and Vacatur

Brian, Shant, and their colleague Michael Childress discuss how insurance companies instill fear in the public in order to suppress a collective voice.  Misinformation, intimidation, and claim denials have become the fundamental recipe for the multi-billion dollar industry.  The team discusses these problems and discuss how the shift from service sector to profit center occurred.

In Re Facebook Inc Internet Tracking (9th Circuit)Facebook and Whether Their Tracking of Users Violates Various CA Privacy StatutesReynolds v Ford Motor Co (1st DCA)Lemon Law Claims and the Proper Measure of FeesWaller v FCA US LLC (2nd DCA)Admissibility of An Expert’s OpinionLuna v. Hansen (9th Circuit)The Fair Credit Reporting Act and the Disclosure Requirements

Nationwide Biweekly v. Superior Court (CA Sup. Ct.)The UCL and False Advertising—whether parties are entitled to a jury trial in a UCL case.Calucci v. T-Mobile (4th DCA)Punitive Damages—a good primer on punitive damages.LN Management LLC v. JP Morgan (9th Circuit)Whether Dead People Can Be Sued—spoiler alert. . .they can’t.

Walker v Life Insurance Co. of the Southwest (USDC Central)A UCL Violation—pre-application illustrations in a life insurance policy.Textron, Inc. v. Travelers Casualty and Surety Co. (6th DCA)Choice of Law Rulings in Insurance Cases—whether it applies as Collateral Estoppel in a subsequent coverage action.KLA Tencor Corp. v Travelers (2nd DCA)The Duty to Defend a Malicious Prosecution Case—but does it arise out of an abuse of process claim?Pacific Pioneer Insurance Co. v Superior Court (4th DCA)An Insurers’ Appeal of a Default in Small Claims Court—the applicability of a De Novo appeal in a small claims judgment.

Thimon v City of Newark (1st DCA) Road Design and the Standard for Summary JudgementAlaniz v Sun Pac Shippers (2nd DCA)The Privitte and Hooker DoctrineReeve v Meleyco (3rd DCA)Enforceability of Referral FeesLopez v Ledesma (2nd DCA)Medical Malpractice and the Standard for Applicability to Physician Assistants

Hance v Super Store Industries (5th DCA) Enforceability of a Fee Share AgreementFenimore v The Regents of the University of CA (2nd DCA) Computation of the Statute of LimitationsBrewer v. Remington (5th DCA) The Delayed Discovery RuleSan Francisco Print Media Company v. The Hearst Corporation (5th DCA) Admissibility of Expert Testimony

Zehia v Sup Court of San Diego County (4th DCA)Personal Jurisdiction in the Electronic Defamation ActionTorres v Design Group Facility Solutions (2nd DCA)Renewed Motion for Summary Judgment Disguised as a Motion for ReconsiderationGrande v Eisenhower Medical Center and Flexcare (4th DCA) Scope of Release Under the Dual Employer TheoryDumas v LA County Board of Supervisors (2nd DCA)Meet and Confer Requirement for Demurrers

Cases this week:Schaeffer v Califia Farms LLC (2nd DCA)What Constitutes A False Statement in a False Advertising CaseRincon EV Realty LLC v CP III Rincon Towers (1st DCA) Overlap Between Legal Claims and Equitable ClaimsWalker v Fred Meyer Inc. (9th Circuit)Disclosure Requirements under the Fair Credit Reporting ActCampbell v Facebook (9th Circuit)Overruling Objection to Settlement with Facebook.

Brian and Shant have an in-depth discussion with attorney and arbitrator Lee Straus about a case reviewed on a prior Civil Action podcast. Mr. Straus breaks down the subtleties of the case and further explains the purpose and reasoning behind his ruling. They also discuss Straus’ involvement and development in the State Bar’s Mandatory Fee Arbitration program where he is heavily involved.Please note:  Mr. Straus would like to clarify that all fee disputes between an attorney and client(s) require the attorney to send the State Bar approved Notice of Client’s Right to Fee Arbitration form to the client(s) pursuant to B&PC § 6201.

Brian sits down with ethics attorney Ellen Pansky, remotely, to discuss COVID-19 and its impact on virtual court and other legal proceedings and her work as an advocate for matters involving the state bar’s regulations on professional conduct. 

Brian and Michael Childress sit down with Philip Camino of Camino Industries.  Philip owns and operates Fellow (www.fellow.la) among other hospitality venues in Los Angeles and nationally, including The Hudson, Earthbar, and Stout.  Philip shares his perspective on the hospitality industry pre and post-COVID, and looks to the future with a positive lens.  A person of immediate action, Philip wasted no time in making crucial business decisions to help preserve his restaurants and seek the assistance of an experienced team to help him address his business interruption concerns.

Brian and guest host, Serena Vartazarian speak with Loyola law student and Kabateck LLP law clerk, Gary Partamian about COVID-19, its effect on his final semester as a law student.  Gary gives his impressions on the impact the pandemic has on the California Bar Exam, and what he’s doing to prepare for either postponement or an altogether cancellation until COVID-19 concerns have been further alleviated.  

Wilson v. Huuuge Inc.Brian and Shant discuss a class action based on a browsewrap arbitration agreement’s requirements.  Seemingly hidden, the consumer would have had to vigorously search through the website to find the agreement’s terms.  Accessibility to the terms dictate the determination of the outcome here. Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc.Brian and Shant discuss an additional named insurer added at the request of a named insurer to determine whether it can seek indemnification from the added party.  The added insurer argues that because the named original insurer denied coverage indemnification does not apply. Barranco v. 3D systems CorpBrian and Shant discuss the purchase agreement between two companies where one requested to introduce the prevailing arbitration award in their prior contract action.  The request was denied by the trial court and the appeals court reviewed the denial as an abuse of discretion and ultimately upheld trial court’s decision.  Aloca Dos Vientos v. CalAtlantic Group, Inc. 2nd DCABrian and Shant discuss condominium associations and the arbitration agreements that are at issue in construction defect litigation.  Covenants Conditions & Restrictions require that if an action is brought against the builder it must be done through arbitration.  Generally, builders and HOAs have been granted a number of protections that must be considered prior to bringing an action.

Becerra v. Dr. PepperBrian and Shant discuss the use of the word “diet” and whether it misled consumers to believe that diet soda would likely promote weight loss.  Multiple dictionaries were used to understand what the word “diet’ is meant to convey, but the determination is based on the reasonable consumer test. Stimpson v. Midland Credit ManagementBrian and Shant discuss defaulted payment to a creditor.  The debt went into collections and the resulting action analyzed the statute of limitations of a debt in credit report.  A time-barred debt although not actionable in court, is not discharged. Patel v. Mercedes Benz USABrian and Shant discuss the Song-Beverly Consumer Warranty Act.  The trial court discovered that the named plaintiff was not making the payments but rather another party.  Attorney fees were recoverable although the prevailing party was not the named party to the action. Smith v. LoanMe, IncBrian and Shant discuss the legality of recorded telephone calls with business entities.  The CA Privacy Act, Section 632.7 specifically does not allow the recording of a phone call without consent.  What’s perplexing is that the legislative intent seems to imply that the Act was implemented to require consent of all parties and prevent eavesdropping. 

People v. RoyalBrian and Shant discuss the past recollection recorded exception to the hearsay rule and the elements that trigger the exception.  They court examined the time element and determined that too much time had expired from the event itself to the time the recollection was recorded. McDermott Ranch v. Connolly RanchBrian and Shant discuss a case arising out of a property dispute stemming from a real estate transaction from 1958.  They unwrap a carved-out hearsay exception based on the statements being made in connection with the boundary of land of real property.  Blizzard Energy v. SchaefersBrian and Shant discuss the Sister State Money Judgment Act, taking a judgment from one state and enforcing it in another state.  The rule preserves the Res Judicata principle, in that once a matter is fully litigated, the parties are precluded from relitigating absent additional requirements.  PG&E San Bruno Fire CasesBrian and Shant discuss the allocation of attorney fees from the determination of a special master.  The agreement stated that the determination was not appealable but the language was introduced only once in the document leading to a dispute between the parties. 

Brian and Shant sit down with appellate attorney Harry Chamberlain to discuss the origins of the of the Anti-SLAPP statute, protecting the free speech of lawyers, and tips for preserving a good record for appeal.  Harry is certified as an Appellate Specialist by the California State Bar Board of Legal Specialization, handling hundreds of appeals across the country, including numerous cases before California Supreme Court such as Rubin v. Green (absolute litigation privilege), Jarrow Formulas v. LaMarche (First Amendment protections under the anti-SLAPP statute), Temple Hospital and Cedars Sinai Medical Center v. Superior Court (the “spoliation” cases) and Lee v.Hanley (defining a lawyer’s “professional services” for purposes of the one-year statute of limitation).

Halyard Health v. Kimberly Clark 2nd DCABrian and Shant discuss a declaratory relief action in a matter that arises out of Michael Avenatti’s Kimberly Clark Case.  The issue is whether Delaware or California law dictates which defendant is responsible for a punitive damages award granted to the plaintiffs.  Safechuck v. MJJ Productions 2nd DCABrian and Shant discuss childhood sexual assault lability of a 3rd party non-perpetrator and whether a revival statute applies to two adults over the age of majority.  AB 218 recently amended the statute of limitations under CCP 340.1, and claims can now be brought before the victim’s 40th birthday.  Even if an action was previously dismissed, the issue of whether the amended statute applies is determined by the finality of the underlying dismissed action. Warwick Ca. Corp v. Applied Underwriters 1st DCABrian and Shant discuss an appeal from a statement of decision issued by a trial court.  A statement of decisions is not an automatically appealable order because it is not a judgment that has can be entered or enforced.  It can be a precurser to a judgment but here no judgment was ever entered.  Shayan v. Spine Care & Orthopedic Physicians 2nd DCABrian and Shant discuss an interpleader action where a client had to compete with the other creditors for the remainder of the settlement.  Ultimately, the opposition did not show up to the interpleader action and subsequent counsel sought to vacate under a 473(b) motion. Failing to appear for a trial does not warrant relief.

Brian and Shant speak with renowned defense attorneys Dana Fox and Eddie Ward. They discuss the defense perspective on trials, civility, and moving cases along current COVID-19 crisis. Dana Fox and Eddie Ward are partners at Lewis Brisbois. Dana Fox has a reputation as the “go-to” attorney in high profile, high exposure catastrophic accident, police use of force, premises and product liability, public entity, and general liability cases. Edward Ward has tried multiple high exposure cases to verdict, including cases involving wrongful death, catastrophic injury, premises liability and employment matters.

Brian and Shant discuss business interruption insurance with Michael Childress, Of Counsel at Kabateck LLP.  With all the closures, businesses large and small are taking the inordinate hit for the rest of society to reduce the impact of the COVID-19 virus.  We primarily look at property insurance policies.  This is where we find coverage for damage to dwellings, buildings, and business income losses.  Also termed lost profits or business interruption coverage.  Business interruption is an additional coverage available in almost every commercial property insurance policy.  As a result, there is little doubt whether business interruption coverage will come to bear in almost every situation.

Union Pacific Railroad v. Ameron Pole PropertyBrian and Shant discuss an inquiry into the causation element of an accident involving a light pole.  The plaintiff’s case first thrown out on summary judgment was later reversed because the remaining parties’ indemnity suit and the plaintiff’s complaint were inextricably connected. Gordon v. ARC Manufacturing, Inc. 4th DCABrian and Shant discuss whether or not the court should have instructed the jury on primary assumption of risk on an inherently dangerous activity.  The court did not and the issue on appeal was that very issue.  Shant further details that the nature of the activity not the reasonableness of the plaintiff’s conduct, is a determining factor. Bingener v. City of LA 2nd DCABrian and Shant discuss the exceptions to the Going and Coming Rule after a water treatment worker struck and killed a pedestrian on his way to his water treatment plant.  The plaintiff argues that his workplace would be liability because they allowed him to come back to work too early after a prior workplace injury. Riley v. Alameda County Sheriff Office 1st DCAPolice immunity for officers involved in vehicular accidents as a result of a police pursuit.  The policy addressing pursuit must be certified and it must address speed and air support.  Brian and Shant unpack the policy requirements to determine liability.

Cacho v. EurostarDefendant had facially non-compliant meal & rest break policies.  The court concluded that the class cannot be certified because Plaintiff did not sufficiently illustrate a uniform policy of missed meal breaks.  Individual questions predominated as to whether the plaintiff missed rest and meal breaks.  In Re Williams SonomaA Kentucky resident brought a consumer class action against Williams Sonoma.  However, Kentucky does not provide a legal platform for consumer class actions.  Trial court allowed Plaintiff’s Counsel to conduct discovery to identify a California resident to serve as class representative. Defendants took a writ which the 9th Circuit Court of Appeal granted. Court of appeal held that pre-certification discovery of the identity of class members is not permitted here, given Defendant’s privacy interests. As a result, without discovery to identify who the class representative might be, the case stalls. Safeway Wage & Hour CasesAn appeal from a rare jury trial of a class action case regarding misclassification of assistant managers who were listed as exempt presumptively as a ploy to avoid protections from wage and hour guidelines.  Jury found in favor of employer, and found that assistant managers were correctly classified as exempt. On appeal, Plaintiff argued that the Court gave improper instruction to the jury. Court of Appeal clarifies the rules regarding exempt work, but ultimately affirms the verdict.   Murphy v. SFBSC ManagementThe Ninth Circuit reversed the district court's approval of a settlement notice process and a class action settlement, negotiated without a certified class, in a case arising out of a dispute under federal and California labor law regarding whether exotic dancers working at various nightclubs in San Francisco were misclassified as independent contractors rather than being treated as employees.

From his first trial representing a family in a bad faith case resulting in a successful verdict to his recent whistleblower cases returning money to the federal government, Niall is passionate about his advocacy for the under-represented.  Niall has spent his entire 28-year career with his current firm where is the managing partner.  He suggests young lawyers to have the courage to expand their comfort zone and encourages lawyers to give opportunities to young lawyers.  More information about Naill McCarthy is available here: https://www.cpmlegal.com/

The son of immigrant parents and the eldest of eight children, Minh is no stranger to hardship. Minh worked three jobs through college to fund his family’s mortgage and made his way to Hastings College of Law in San Francisco. Minh’s passion for advocacy comes through in his personal injury trial practice and his pro bono work from his past presidency of the Los Angeles Trial Lawyers’ Charities, low-income, affordable housing work at Linc Housing, community work at the YMCA of Greater Long Beach, and his upcoming presidency of CAALA in 2023. More information about Minh Nguyen and his practice can be found here: https://www.nguyenlawyers.com/

From an early age, the son of an elementary school principle and school secretary, Greg understood his path to protect those who were unable to protect themselves. Greg’s practice in Newport Beach was one of the first practices to successfully take an e-cigarette matter to trial.  Greg discusses one of his most memorable cases as a plaintiffs’ attorney where he successfully advocated for an elderly woman who had tragically lost the use of her limbs and extremities due to an accident involving a city-operated vehicle.  Greg also pays great respect to William Shernoff, the great practitioner of insurance bad-faith.  More information about Greg Bentley and his team is available here: https://www.bentleymore.com/

Brian and Shant discuss various types of litigation funding available to lawyers and law firms, and the potential pitfalls of the borrowing money to fund cases. Though not a novel practice in the legal profession, reliance on loans can become problematic for the practitioner and for the plaintiffs’ bar as a whole.Have questions for us? You can reach us at 213-217-5000, or visit our website at www.kbklawyers.com.

 Craig discusses how he approached his first trial just short of 30 days of becoming a practicing lawyer and how it helped develop his skill despite how difficult the challenge.  Craig uses his 13-year career as a Contra Costa County Public Defender as a foundation to approach his cases from a different perspective.  Craig’s unique perspective allows him to view even the most challenging matters with confidence and positivity.  More information about Craig and his practice can be found here: https://altairlaw.us/

The former president of the CAOC discusses his first case, fresh out of law school, representing Cesar Chavez and the United Farm Workers Union for farm workers charged with strike violence.  Ray comments on his experience working with Chavez and how impactful the qualities Chavez possessed were to the United Farm Workers movement.  More information on Ray Boucher and his consumer law firm, Boucher LLP, can be found here:  http://www.boucher.la/