The parties had a disagreement about a lease. The superior court retaining jurisdiction after trial “to make further orders, including injunctions, if necessary in the future to effectuate and or enforce the Court’s judgment.” The appellate court reversed that portion of the judgment, stating: “We are concerned with the court retaining jurisdiction for the life of […]
Plaintiff’s State Law Failure To Warn Claim About A Medical Device Is Not Preempted.
Plaintiff had a pump and catheter surgically implanted in his abdomen to deliver pain relief medication directly to his spine, and he ended up a paraplegic. The opinion states defendant’s device caused the paralysis. The district court concluded plaintiff’s action was preempted by the Medical Device Amendment [MDA] to the Food, Drug, and Cosmetic Act [FDCA] […]
No Bystander Claim For Emotional Distress When There Is No Contemporaneous Perception That Defective Product Caused Injury.
Plaintiff brought an action after she suffered emotional distress upon witnessing the death of her brother while they were scuba diving off the coast of Catalina Island. At the time of the accident, plaintiff thought her brother had a heart attack, but later learned that a plastic flow-restriction insert had become lodged in decedent’s second stage […]
Specific Statutes Take Precedence Over Older And More General Statutes.
Plaintiff filed suit for breach of contract to make a will 91 days after rejection by the estate of his claim but within a year of the decedent’s death. The administrator of the estate is the defendant, and her demurrer was sustained without leave to amend after the trial court found plaintiff’s suit was time barred. […]
In Wrongful Death And Survivor Causes Of Action Administrator Of Estate Not Required To Join All Heirs.
Plaintiff, the administrator of the estate of a decedent, brought an action alleging both wrongful death and survival causes of action. The defendants moved to abate the action for failure join all necessary parties. The administrator admitted she did not represent the heirs. The trial court ordered the entire action abated. Code of Civil Procedure section […]
FEHA Claim For Sexual Harassment Not Viable In Same Sex Incivility In Workplace.
In Patrick C. Kelley v. The Conco Companies (Cal. App. First Dist., Div. 5; June 6, 2011) 196 Cal.App.4th 191, [126 Cal.Rptr.3d 651, 112 Fair Empl. Prac. Cas. (BNA) 1301], while working on a construction site, the plaintiff, a male, was subjected to grossly offensive, graphic, vulgar, and explicit comments about sexual acts, by a male supervisor and a […]
Anti-SLAPP Motion Should Have Been Granted In Registered Sex Offender Case.
The renter/defendant of a house owned by the owner/plaintiff told a potential buyer of the house that a registered sex offender lived immediately across the street from the house. The sale fell through and the owner sued the renter for interfering with the sale. The renter filed an anti-SLAPP motion under Code of Civil Procedure section […]
Transcript Of Police Recording Admissible As A Party Admission.
In Kincaid v. Kincaid (Cal. App. Second Dist., Div. 4; July 6, 2011) 197 Cal.App.4th 75, [127 Cal.Rptr.3d 863, 2011 DJDAR 10048], the mother of decedent, who committed suicide, brought a wrongful death action alleging torture, sexual abuse, and death against her former husband, who was decedent’s step-father. The defendant, moved for summary judgment. In her opposition to the […]
Arbitrator Not Required To Disclose Details About His Family, Or Religion.
After receiving an arbitrator’s award and searching the internet to find out the arbitrator’s parents were German Jewish escapees who lost family and property in the Holocaust, the losing party claimed the superior court erred in not vacating the award because the arbitrator did not disclose his religion and family background. The losing party, whose father […]
No Commonality Among Employment Decisions Means No Class Action.
In Wal-Mart Stores, Inc. v. Dukes (U.S. Sup. Ct.; June 20, 2011) 131 S.Ct. 2541, [180 L.Ed.2d 374], current and past employees of Wal-Mart sought injunctive relief, punitive damages and back pay for themselves as well as 1.5 million female employees, alleging discrimination against women under Title VII of the Civil Rights Act of 1964. A federal district court […]
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