SAMPLE: California Case Summaries ADR™

NOTE: This is a SAMPLE of California Case Summaries ADR™ (summarizing arbitration, mediation, ADR and a few select additional cases) that Monty publishes every two weeks.
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By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee
Civil Trial Lawyer & ABOTA Member
Licensed in California since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com
www.montymcintyre.com


CALIFORNIA COURTS OF APPEAL

Arbitration

Hernandez v. Ross Stores (2017) _ Cal.App.5th _ , 2016 WL 7131651: The Court of Appeal affirmed the trial court’s order denying a motion to compel arbitration in a case where plaintiff filed a single-count representative action under the California Private Attorney General Act (PAGA), Labor Code section 2698 et. seq., alleging defendant had violated numerous Labor Code laws and seeking to recover PAGA civil penalties. The trial court properly denied the motion based upon Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, 387. The PAGA claim was a representative action brought on behalf of the state that did not include individual claims. There were no individual claims or disputes that could be separately arbitrated. (C.A. 4th, filed December 17, 2016, published January 3, 2017.)

Civil Procedure (Anti-SLAPP)

Healthsmart Pacific v. Kabateck (2017) _ Cal.App.5th _ , 2016 WL 7340044: In an action by plaintiffs against certain lawyers and their law firms for defamation and other causes of action arising from statements two of the lawyers made on television and radio programs about a pending lawsuit, the Court of Appeal affirmed the trial court’s order granting an anti-SLAPP motion to strike under Code of Civil Procedure section 425.16. Standard of review: de novo. The Court of Appeal ruled that the action arose out of activity protected under the anti-SLAPP statute, and because the challenged statements were protected under the fair report privilege, plaintiffs did not establish a probability of success on the merits. (C.A. 2nd, filed December 19, 2016, published January 10, 2017.)

Torts

Bigler-Engler v. Breg, Inc. (2017) _ Cal.App.5th _ , 2017 WL 65411: In an action alleging medical malpractice and intentional torts arising from the use of a cold therapy device after orthopedic surgery, the Court of Appeal granted a rehearing, depublished its earlier opinion dated October 28, 2016, and issued a new opinion. In this new opinion, the Court of Appeal came to the same conclusions as the original decision on most issues. However, it concluded that its original discussion of the interplay between MICRA and Proposition 51 was incorrect and ruled that a Proposition 51 apportionment should be applied first before determining whether the $250,000 MICRA cap needs to be applied. Defendant Oasis MSO, Inc. (Oasis) was liable for $130,000 after the Proposition 51 apportionment. Because this was below the MICRA $250,000 cap, that cap did not apply. Plaintiff’s 998 offer was ineffective because it failed to include an acceptance provision. The jury awarded $68,270.38 in economic compensatory damages and $5,127,950 in noneconomic compensatory damages to plaintiff, apportioned liability among the three defendants, and awarded punitive damages of $500,000 against defendant Dr. Chao (Chao) and $7 million against defendant Breg, Inc. (Breg). However, the jury’s verdict findings of intentional concealment against Breg and strict products liability against defendant Oasis were not supported by the evidence. This required reversal of the punitive damage award against Breg. The Court of Appeal also ruled that the noneconomic damages and punitive damages as to Chao (whose stipulated net worth was $3,411,577) were excessive, and those awards were reversed and remanded for a new trial unless plaintiff accepts reductions in those awards to $1,300,000 and $150,000. The decision discusses a plethora of attorney conduct, damages, malpractice, tort and trial issues (C.A. 4th, January 6, 2017.)

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