Publications Archives

When Can a Plaintiff Recover Future Replacement Cost Damages in a Breach of Warranty Case?

Those who practice tort law routinely allege claims for future damages for, i.e., medical expenses or pain and suffering. But when can a plaintiff in a commercial case recover future damages? The issue is especially tricky in the context of breach of warranty claims.

The Accepted Work Doctrine - Dangerous Conditions Created by Contractors Do Not Necessarily Create Liability to Third Parties

Contractors need to be aware of The Accepted Work Doctrine in California. What is it? This doctrine provides that a contractor who builds according to an owner's plans and specifications will not be liable to third parties for injuries sustained by reason of a dangerous condition of their work.

State Supreme Court Interprets FEHA to Parallel the ADA

Under a recent California Supreme Court decision, the state Fair Employment and Housing Act now requires an individual alleging disability discrimination to establish that they are able to perform their job's essential duties before they can prevail in a lawsuit for discrimination. This case puts California law in line with federal law under the American's with Disabilities Act. California employers will be pleased that an employee alleging disability discrimination now has the burden of proof to establish that they can perform their position's essential duties.

Meal & Rest Pay - Murphy v. Kenneth Cole Productions

In the most important Employment Law case of the year, the California Supreme Court recently held that the "additional hour of pay" for employees missing meal and break periods is a wage and not a penalty, thus falling under the three-year statute of limitations instead of the one-year statute of limitations.

California Appellate Court Imposes Federal Standard of "Extreme Care" Upon Commercial Vehicles Operating in Hazardous Conditions

In the recent case of Weaver v. Chavez, 133 Cal. App. 4th 1350, the Second Appellate District of California found that a Plaintiff alleging personal injuries as a result of an accident with a commercial vehicle traveling in hazardous weather conditions was entitled to a jury instruction requiring "extreme care" on the commercial driver's part, rather than merely "reasonable prudence" as is generally used in California's jury instructions.

Recovering Attorney Fees from Subcontractors: LoDuca v. Polyzos

Court of Appeals rules homeowners may recover attorney fees from subcontractors under third party beneficiary theory.

In LoDuca v. Polyzos, published in the Daily Appellate Record on July 18, 2007, the Court of Appeals awarded attorney fees to a homeowner in a breach of contract action against a cabinet subcontractor, ruling that the homeowner was a third party beneficiary of the subcontract agreement between the general contractor and the cabinet sub, and so could avail himself of the attorney fees provision in that subcontract. This case is important for construction defect practitioners and claims representatives because it arguably establishes a direct right to attorney fees against subcontractors for homeowners, even though no contractual relationship exists between the two. However, there are enough distinguishing factors between this case and the "typical" construction defect case that its application in construction defect cases is debatable.

Expectation of Privacy in Employee Offices: Hernandez v. Hillsides, Inc.

On September 2006, the California Second District Appellate Court reversed and remanded a lower court grant of summary judgment in an action brought by employee whose employer installed video camera surveillance equipment unannounced in her office to try to catch employees accessing prohibited pornography on company computers. Abigail Hernandez (plaintiff employee) claimed that the Hillsides Children's Center (employer) placed a video camera in the lockable office which plaintiff shared with another female employee and thus violated her right to privacy. The employer claimed that the camera equipment never actually recorded any footage of employees, and since the employees worked for a facility for abused and neglected children they had a diminished right to privacy. The trial court granted summary judgment for employer.

"Hostile Work Environment": Moakler v. County of Orange

Appellate Court addresses what constitutes a hostile work environment, specifically the requirement that the conduct be "continuous and pervasive."

Facts

Pamela Moakler, the Executive Director of the Office of Aging filed suit against her former employer, the County of Orange and Chris Norby, a county Supervisor for sexual harassment and retaliatory discharge. She alleged that during the court of her employment, she had three interactions with Norby over a five week period whereby he made derogatory and sexual comments to her.

The New FMLA Regulations

On November 17, 2008, the U.S. Department of Labor's Wage and Hour Division issued the final regulations of the federal Family Medical Leave Act (FMLA) which went into effect on January 16, 2009. The new regulations clarify and make numerous changes to the original regulations founded in 1995 and add 2 new regulations that give families of military service members new rights to unpaid leave. Employers need to evaluate the new legal requirement, consult their legal department or outside counsel to ensure compliance with California Family Rights Act and update their policies and procedures, notices and forms accordingly.

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