Experience Archive

Washington law statutorily provides an avenue for a former tenant who was a defendant in an unlawful detainer action to seek a court order prohibiting tenant screening services from sharing the prior unlawful detainer action with a prospective landlord. This order is called an Issuance of Order for Limited Dissemination (OLD). The statute allows for the issuance of an OLD under three main scenarios, one of them for “other good cause.” In Housing Authority of Grant County v. Parker, No. 390-89-6-III, WA. Ct. of App. (Sep. 21, 2023), the court explored the meaning of “other good cause” as provided for by the statute and directed the parties accordingly.

WSHB’s Connecticut Partner Kate Adams has demonstrated her exceptional legal prowess in the recent appellate decision of Harold Dusto et. al. v. Rogers Corporation et. al., No.45341, 2023 WL 6964115 (Conn. App. Ct. Oct. 24, 2023). The court, relying on Kate's analysis presented before the Connecticut Supreme Court in the groundbreaking 2018 case, Lucenti v. Laviero, 327 Conn. 764, 176 A.3d 1 (2018), adopted the factors she put forth to determine whether a plaintiff employee has sufficient evidence to fall within a narrow exception to workers' compensation immunity.

The Superior Court of Pennsylvania in Johnson v. Toll Brothers, Inc., No. 2119 EDA 2022 found that homeowners did not qualify for a two-year extension under the Statute of Repose when a defect of the property was known to them and existed prior to the tenth year after a Certificate of Completion had been issued. The Superior Court also held that where a governing body signed off on the Certificate of Completion, the homeowner cannot later claim that the contractor’s building practices were unlawful. This case is a significant victory for builders and developers who fear homeowners bringing suits for defects that existed years before the Statute of Repose expired and later claiming that their building methods utilized were deficient even though they constituted best practices at the time of the construction.

On October 10, 2023, Governor Gavin Newsom signed Senate Bill (SB) 365, which brings about significant changes to the existing law concerning the appeal of orders denying motions to compel arbitration. According to the new SB 365, an employer who loses a civil motion to compel arbitration is no longer permitted to stay the proceedings pending an appeal. This article examines the key provisions of SB 365, its implications for employers, and the potential challenges it may face on preemption grounds. It is essential for employers to be aware of these changes and take proactive measures to ensure compliance and effective dispute resolution.

The appeal in Duran v. Employbridge Holding Co. (CA5 F084167) challenged the denial of a motion to compel arbitration of claims seeking to recover civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) after the United States Supreme Court in Viking River Cruises, Inc. v. Moriana held that “individual” PAGA claims could be compelled to arbitration. However, the arbitration agreement in question contained a carve-out provision stating that “claims under PAGA … are not arbitrable under this Agreement.” The trial court determined that the phrase "claims under PAGA" must include all PAGA claims, thus making the agreement's carve-out effectively exclude even “individual” PAGA claims from arbitration. The Court of Appeals affirmed the trial court's ruling.

The Supreme Court of California recently considered the meaning of the term “employer” in Raines v. Healthworks Medical Group, (9th Cir. 2022) 28 F.4th 968, 969. It found that business-entity agents engaged in certain aspects of the hiring process may be directly liable for violations of anti-discrimination laws. This outcome is significant because the decision effectively enlarged the potential scope of liability under the Fair Employment and Housing Act (FEHA) by including employer’s agents who employ five or more employees within the definition of “employer.”

When parties find themselves embroiled in a legal dispute, they often face a choice between pursuing their case in court before judges and juries or seeking resolution through arbitration. While both options have their merits, arbitration has increasingly become a preferred method of dispute resolution as it offers increased efficiency and confidentiality. For this reason, many business entities routinely include arbitration provisions in contracts. Many clients also like it because it avoids the prospect of runaway verdicts or nuclear verdicts in factually troublesome matters.

WSHB, a leading national law firm, has achieved a significant victory in securing discovery related to litigation funding in a highly contentious matter between the parties. The court order issued by the Superior Court of Waterbury, CT., mandated the disclosure of a plaintiff's application for a litigation loan, shedding light on the implications of third-party funding in legal proceedings.

California has strengthened its stance against non-compete agreements with the signing of an amendment to the state's non-compete ban, known as S.B. 699. The amendment, which takes effect on January 1, 2024, declares non-compete agreements void regardless of when or where they are signed, including those signed outside of California. S.B. 699 also introduces a new private cause of action, allowing employees to take legal action against employers who use unenforceable non-competes as a deterrent. However, there are still unanswered questions surrounding the amendment, including its impact on Labor Code §925, and its potential retroactivity. Employers, both within and outside of California, should carefully review their use of restrictive covenants in light of these developments.

On October 16, 2023, the California Court of Appeal for the Second Appellate District reversed an order by the Santa Barbara County Superior Court granting a motion in limine excluding the testimony of plaintiff Dana Brancati’s medical expert in a mold bodily injury case. That exclusion order resulted in the dismissal of the plaintiff’s action. Finding that the medical expert was qualified and that his opinion was “based on facts and a differential diagnosis,” the Court of Appeal reversed the trial court’s orders.

The Connecticut Supreme Court recently handed down a pair of important opinions in Mills v. Hartford Healthcare Corp. and Manginelli v. Regency House of Wallingford, Inc. The opinions answered the question of whether health care providers and facilities could be civilly liable for healthcare services undertaken in support of the state’s COVID-19 response pursuant to Governor Ned Lamont’s Executive Order No. 7V. In both decisions, the court’s review included the consideration of acts and omissions undertaken due to the lack of resources that often plagued those in the medical field during the pandemic as well as examining the principles for interpreting an executive order by the Connecticut Governor.

In a recent appellate decision that will have far-reaching implications for brokers in the freight industry, Illinois' First District Appellate Court reversed a judgment in the groundbreaking case of Cornejo v. Alliance Shippers, Inc. (2023) IL App.1st No. 220633. The court determined that an agency relationship did not exist between the freight broker and the motor carrier, thereby relieving the broker of vicarious liability for the driver's negligence. This pivotal decision, handed down on September 27, 2023, has sent shockwaves through the industry and has the potential to redefine the legal landscape for brokers.

The California Supreme Court answered two certified two questions in the case of Kuciemba v. Victory Woodworks, Inc. (2023)_Cal.5th_, 2023 WL 4360826. The decision signals a significant development that could have wide-reaching implications surrounding employer liability related to COVID-19. The Court's decision is poised to influence how future cases involving the derivative nature of workplace-related "injuries" from COVID-19 are adjudicated moving forward.

On September 30, 2023, Governor Gavin Newsom signed SB-235 into law. SB-235 will affect the rights and obligations of the parties as it pertains to the exchange and disclosure of factual information during discovery. Specifically, the new law amends California Code of Civil Procedure section 2016.090 and institutes a procedure for initial disclosure of information and documents that is similar to that followed in Federal court. The changes apply only to civil actions filed on or after January 1, 2024 and shall remain in effect until January 1, 2027.

In a remarkable trial victory, attorney Maggy Mazlin achieved a unanimous defense verdict, rejecting a $9 million settlement demand and concluding over 5 ½ years of litigation. The trial, held in Suffolk County, saw a jury deliberation of just 25 minutes on liability before determining that WSHB’s client was not negligent.

WSHB added another success to its trial scorecard for the Pennsylvania office late this evening. In a medical malpractice case involving one of its hospital clients, an arbitrator rejected outright the claim handing the victory to WSHB’s hospital client. This particular case involved a claim for wrongful death/survival. Led by esteemed trial partner Andy Kessler, WSHB’s legal team achieved an extraordinary outcome for our hospital client, marking a significant milestone in the pursuit of justice.

Inzunza v. Naranjo et al. (2023) __Cal.App.5th__[2023 WL 5344893], involved a wrongful death action initiated against a truck driver and his employer. The plaintiffs claimed that the truck driver’s negligence caused the death of the decedent. After a jury returned a verdict in favor of the plaintiffs, the trucking company employer appealed claiming that they were improperly precluded from bringing evidence to combat the vicarious liability claim against them as well as bringing evidence of comparative fault on the part of the decedent. In this recently published decision, the court reversed the judgment against the employer and remanded for a new trial. The Court based its finding for remand on the fact that deemed admissions of an agent employee-codefendant do not bind the employer as the principal in the same action, even when the claim involves vicarious liability.

Can a mother who heard the injury of her daughter occur over a cell phone sustain a cause of action for negligent infliction of emotional distress against not only the driver causing the injury, but also against the City and homeowner for allegedly allowing a dangerous conditions that plaintiffs claim contributed to the crash? In Downey v. City of Riverside (2023) 90 Cal.App.5th 1033, the court found that liability for negligent infliction of emotional distress cannot be imposed for the consequences of allegedly harmful conduct when she was neither present at the scene of the accident nor did she have knowledge at the time of the accident of the connection between the defendants’ alleged negligent conduct and her daughter’s injuries. Although the court noted that Downey potentially had perceived the incident through the cell phone, she did not successfully establish a causal connection between the alleged dangerous condition and the emotional damages she suffered as a result of the accident.

On June 16, 2023, the Supreme Court of Texas issued an important decision in Chohan v. New Prime, Inc, following a petition for review from the Court of Appeals for the Fifth District of Texas, addressing the award of noneconomic damages in a wrongful death case and emphasizing the need for an actual nexus between the award of noneconomic damages and the evidentiary record.

On August 30, 2023 the United States Department of Labor announced a notice of proposed rulemaking that would extend overtime pay to an additional 3.6 million salaried workers. In a nutshell, the proposed rule guarantees overtime pay for previously exempt salaried workers who earn less than $1,059 per week, or about $55,000 per year. This proposed change revises section 13(a)(1) of the Fair Labor Standards Act (FLSA), which exempts minimum wage and overtime pay requirements for certain executive, administrative and professional employees. It also provides for an automatic updating mechanism that streamlines the process to update and accurately reflect current earnings data.

In a precedent-setting decision by California’s Third District Court of Appeal, the court clarified the reach of Code of Civil Procedure (“CCP”) section 998, California’s cost-shifting statute. (Madrigal v. Hyundai Motor America (2023) 90 Cal.App.5th 385, as modified on denial of reh’g (May 9, 2023), review granted (Aug. 30, 2023)¹.) The case is noteworthy because it clarifies that a plaintiff who does not accept a section 998 offer, and later obtains a less favorable result through a stipulated settlement, rather than through a formal “judgment,” may still invoke the cost-shifting provisions of section 998. The court reasoned that a contrary interpretation would undermine the purpose of CCP section 998, as it would improperly benefit a party who did not accept a section 998 offer that proved to be reasonable based on the amount that party ultimately accepted through a stipulated settlement.

WSHB, a leading law firm specializing in complex litigation, secured a momentous victory on appeal in a high-stakes elder abuse and wrongful death lawsuit. Partner Marilyn Victor, Senior Counsel Joanna Dyriam, and Appellate Specialist Steve Disharoon, showcased their exceptional skills and expertise to secure a critical win for their clients.

WSHB, a leading national law firm, is pleased to announce the successful dismissal of its client in a high-profile wrongful death lawsuit following a two-week trial. The case involved a tragic collision on the 91 freeway, which resulted in the death of a young driver. WSHB's strategic defense team effectively navigated the complex legal landscape, leading to a favorable outcome.

In Greenfield v. Dep't of Labor & Indus. of State, No.57156-1-II (Wash. Ct. App. Jun. 21, 2023), the court found that a intake counselor for the ACLU who worked on a volunteer basis for almost a year was not subject to the Washington Minimum Wage Law. As a volunteer working for a non-profit, he was exempt from the statute and the ACLU could not be held liable for refusing to pay him or offer him a future opportunity or employment.

We are pleased to announce a significant trial victory in the case involving allegations of sexual battery brought by plaintiff against her physician. Following a two week trial, the jury returned a defense verdict for WSHB’s client, a nephrologist and internal medicine specialist. 

The Supreme Court of Georgia recently delivered its highly anticipated decision in Ga. CVS Pharmacy v. Carmichael, S22G0527 (June 29, 2023), shedding light on the liability of proprietors and security contractors for injuries resulting from third-party criminal activity. While the ruling addresses various aspects of these claims, some unresolved questions remain.

In King County v. Walsh Construction Company, No. 83787-7-1 (July 3, 2023), the Washington Court of Appeals' discusses the effect of warranty language in construction contracts when design errors are implicated. Contractors should review the warranty language in their contracts to make sure they are not unknowingly agreeing that the design drawings are sufficient.

WSHB is thrilled to announce a significant victory in the recent dismissal of a slip and fall lawsuit against their client. The plaintiff had demanded the policy limits of $1,000,000.00, but WSHB successfully obtained a complete dismissal of the case through a strategic motion for summary judgment. 

On July 23, 2023, California Senate Bill 652 was signed into law, changing the standard of proof required for admissibility of expert opinion testimony regarding alternative medical causation at trial. The new law, which was drafted in response to a California Court of Appeal decision that affirmed the existing standard of proof for admission of defense expert medical opinions at trial, imposes a higher standard of proof on defendants. This amendment to the California Evidence Code, under new section 801.1 goes into effect in 2024.

In its first comprehensive overhaul of the prevailing wage provisions of the Davis-Bacon Act in over 40 years, the Department of Labor (DOL) issued a new ruling that alters how prevailing wages for federally-funded or sponsored construction projects are calculated. On August 8, 2023, the DOL announced the issuance of the final rule entitled "Updating the Davis-Bacon and Related Acts Regulations." This final rule aims to redefine how prevailing wages and benefits are determined in federally-funded or assisted construction projects. This will vastly impact how construction workers are compensated.

WSHB is pleased to announce a historic triumph in the highly anticipated decision from the First District of California’s Court of Appeal, which will be published in the Official Reports detailing the favorable appellate holding denying $600,000 in attorneys’ fees.

In a remarkable display of legal expertise and strategic thinking, Ashley Beagle, a partner at WSHB, together with rising associate Phillip Mendelson, achieved a significant milestone in a wrongful death action. Their motion for summary judgment, filed with precision and timeliness, resulted in the successful negotiation of dismissal for WSHB's client, in exchange for a waiver of attorney's fees and costs.

WSHB's Orange County office is celebrating a victory in trial, one that spanned eight weeks and involved a complex professional liability dispute involving an escrow company and escrow office. Partner, Catherine Deter, along with senior associate Frank Chatzipantsios, overcame unique challenges to obtain a favorable outcome. The clients faced 13 causes of action and in a 48 page statement of decision - the Judge sided with our clients and ruled that only minimal damages should be awarded as to one cause of action.

In a head-spinning tale of battling court decisions and competing precedents, yet another important decision has hit the books on the question of standing under the Private Attorneys General Act of 2004 (PAGA). In Adolf v. Uber Techs., S274671 the court considered whether an aggrieved employee compelled to arbitrate induvial (July 17, 2023), claims under PAGA maintains standing to pursue PAGA claims arising out of events involving other employees. In an act of clear opposition to a recent U.S. Supreme finding on this topic, the California Supreme Court answered this question in the affirmative and found in favor of the plaintiff employee.

Professional malpractice claims in the construction industry present unique questions with respect to statute of limitations issues. One particular challenge practitioners often encounter is determining which statute of limitations applies to each claim. When problems occur on a construction site, owners and developers often involve their design professionals and expect that they will be held at least partially responsible for any legal losses.

In Dardar v. Farmers Auto. Ins. Ass'n, 2023 Ill. App. 5th 220357 (Ill. App. Ct. 2023), the Illinois Fifth District Appellate Court reviewed the lower court's dismissal of a plaintiffs' complaint demanding property insurance coverage for the destruction of a home that they had never lived in. It agreed that the term "reside" was not ambiguous as to the terms of plaintiffs' specific agreement with the insurance company. The fact that the word "reside" has multiple meanings did not in and of itself render the term ambiguous as to this contract.

Fan on fan violence was at the root of a lawsuit brought by Enrique Romero against the Los Angeles Rams (“Rams”); and against the Rams’ private security contractor, Contemporary Services Corporation (“CSC”). In Romero v. L. A. Rams, No. B310152 (Cal. Ct. App. Apr. 27, 2023). Romero alleged causes of action for negligence, premises liability and related torts after Romero was injured in an altercation with another fan during a Rams football game at the Los Angeles Coliseum.

In granting defendants’ motions for summary judgment, the trial court ruled that, even if defendants had a duty to protect plaintiffs and had failed to take the necessary steps outlined in plaintiffs’ complaint, these failures did not establish causation for Romero's injuries. On appeal, the court affirmed.

In Blaylock v. DMP 250 Newport Center, the court upheld the long-standing Privette doctrine. In its analysis it found that the employee of a contractor who failed to properly inspect the worksite in accordance with industry standards could not later recover from the owner of the building for his injuries sustained while performing his work. 

We are delighted to announce that New York partner Kevin Fitzpatrick and senior associate Andrew Cota secured a significant victory in successfully arguing a Motion for Summary Judgment in favor of a client involved in a contentious premises liability suit.

In a recently released technical assistance document, titled “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” the Equal Employment Opportunity Commission (“EEOC”) explained how employers can run afoul of the American’s with Disabilities Act (“ADA”) by using computer-based tools when making decisions about hiring, monitoring, compensation, and/or terms and conditions of employment. Building upon earlier advice, contained in the “Artificial Intelligence and Algorithmic Fairness Initiative,” published in 2021, the EEOC warned of possible adverse impacts arising from the use of AI in employment. This new article particularly focuses on the adverse impact of using AI for employment decisions.

The case of Cvejic v. Skyview Capital, LLC, No. B318880 (Cal.App. Jun. 28. 2023), explored the question of whether a party was entitled to withdraw from arbitration if the other party did not pay their arbitration fees on time. According to the California Code of Civil Procedure section 1281.98, the court found that the answer is yes. This case is illustrative of the importance of paying fees on time and not relying on the arbitrator in the case to provide extensions, or expecting the opposing party to simply go along with changing payment deadlines even if approved by the arbitrator.

When a federal district court denies a motion to compel arbitration, the losing party has a statutory right to an interlocutory appeal pursuant to 9 U. S. C. §16(a). In the case of Coinbase, Inc. v. Bielski, 22-105 (June 23, 2023), the Supreme Court of the United States considered the sole question of whether the district court must stay its proceedings while the interlocutory appeal is ongoing. The court answered in the affirmative and ruled that the district court must stay its proceedings.

WSHB, a leading law firm specializing in litigation and advocacy, is proud to announce our success in prevailing in an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion. This motion effectively dismissed several claims brought against our esteemed client.

Congratulations are in order for partner Kelly Waters and senior counsel Brendan Johnson, who successfully argued a motion for summary judgment for the client! This case involved a plaintiff who brought suit against WSHB's client, the owner and general contractor of the oil refinery where the plaintiff fell and suffered injuries to his cervical spine. Plaintiff was employed by an established subcontractor at the work site at the time of his injury. Plaintiff's initial demand was five million dollars and was demanding 2.9 million dollars at the time of the decision.

In Stelzer v. Nw. Cmty. Hosp., 2023 Ill. App. 220557 (Ill. App. Ct. 2023), a hospital was vindicated when the court found that their consent forms clearly informed patients that the doctors performing surgery were neither employees nor agents of the hospital. A patient required emergency open heart surgery and signed several consent forms that clearly stated that the doctors performing his procedures were not employees of the hospital where the procedure was being performed. Despite this, he sued the hospital under a theory of apparent agency. The court denied his claim and granted the hospital partial summary judgment. Where the consent forms stated multiple times that the doctors were not employees and used bold and all capitalized font to express this fact, the plaintiff could not prevail.

In this interlocutory appeal, the Supreme Court of Texas reversed in part the decision of the court of appeals in Lennar Homes of Tex. Land & Constr., Ltd. v. Whiteley, _S.W.3d_2023 (Tex. May 12, 2023). The high court found that Whiteley, a subsequent purchaser who claimed construction defects against Lennar Homes of Texas Land & Construction, Ltd. (“Lennar”) was bound by the arbitration clause contained in the purchase and sale agreement (“PSA”) between Lennar and the original owner of the home pursuant to the doctrine of direct-benefits estoppel. Despite the fact that Whiteley’s implied warranty claims against Lennar arise partly from common law, nonliability arises from the provisions of the express warranty between Lennar and the original purchaser because the express warranty was incorporated by reference into the original PSA. The court found that the warranty claims asserted by Whitely did not stand on their own, but instead relied on the existence of the original PSA containing the arbitration clause.

In Cothron v. White Castle System, Inc., 2023 IL. 128004 (Feb. 17, 2023), the Illinois Supreme Court examined the question of whether claims under section 15(b) and(d) of the Illinois Biometric Information Privacy Act (the Act) accrue each time a piece of biometric data is scanned or transmitted. In a much-anticipated decision, the high court found that businesses will be liable for each and every infraction; not only the first instance. The impact of this case is far-reaching in assessing potential liability for businesses collecting biometric data in violation of BIPA.

Get ready to take a swing at this golf course injury case! In Wellsfry v. Ocean Colony Partners, 2023 S.O.S. 1709, the court upheld the age-old doctrine of assumption of the risk, affirming the inherent dangers of teeing off. Despite a nasty trip on a tree root, the golfer was not entitled to recover for his injuries due to the primary assumption of the risk doctrine. This case sets a precedent for understanding the potential hazards of the sport and reinforces the importance of personal responsibility on the greens and potentially beyond.

Employers must post a separate appeal bond after an amount is awarded to an employee by the Labor Commissioner. That was the lesson learned in Adanna Car Wash Corp. v. Gomez (2023) 87 Cal. App.5th 642. In this case, the court found that an employer could not substitute the $150,000 bond it already had for the car wash it operated with an appeal bond. Labor Code section 2055, requires a bond as a condition of business licensure, but a separate bond is required under Labor Code section 98.2, which addresses bond requirements in regard to Labor Commissioner awards.

In a victory for LBGTQ+ rights, the 4th Circuit Court of Appeals in Richmond, Virginia, recognized gender dysphoria as a medical condition and determined that those suffering from it are entitled to protections under the Americans with Disabilities Act. Businesses should take note of this important legal development and the expanded protections under the ADA in the 4th Circuit as similar cases are sure to be adjudicated in halls of justice across the country.