Berger Kahn's monthly e-publication 
The most important court decisions of the month
Welcome to Berger Kahn's monthly e-publication summarizing the most important California state and federal court decisions.

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In-Home Alzheimer Caregivers Assume Risk of Injury
Gregory v. Cott
(Cal. Sup. Ct.), filed August 4, 2014

A home health agency assigned Carolyn Gregory to work as a caregiver for Alzheimer’s disease patient, Lorraine Cott. Gregory was washing a knife when Cott came behind her and tried to grab for the knife. When Gregory tried to restrain Cott, she dropped the knife. The knife stuck Gregory’s wrist, resulting in her losing feeling in several fingers. Gregory sued Cott and her husband for negligence, premises liability, and battery. The trial court granted the Cotts’ summary judgment motion. The Court of Appeal affirmed the trial court’s decision based on the primary assumption of the risk doctrine. The California Supreme Court agreed. The Court emphasized that those “who hire workers to manage a hazardous situation are sheltered from liability for injuries that result from the risks that necessitated the employment.” Accordingly, the Court held that the Cotts “owed Gregory no duty to protect her from the ordinary risks that arose in the course of that employment.”

Adverse Actions That Could Deter Protected Speech are Sufficient For First Amendment Retaliation Claims
Thomas v. County of Riverside
(Ct. App. Ninth Cir.), filed August 18, 2014

The District Court dismissed Wendy Thomas’ first amendment retaliation case on summary judgment, claiming that Ms. Thomas’ adverse employment actions were merely “petty workplace gripes.” The Ninth Circuit disagreed. The Court noted that a reasonable juror could find the actions that the District Court viewed as “trivial” would “deter protected speech.” The Ninth Circuit focused on Ms. Thomas’ involuntary transfers -- which the District Court dismissed -- as sufficient to survive summary judgment because they presented genuine factual disputes. The Court also emphasized that the District Court overlooked an internal investigation over an allegedly “rude and discourteous” email which did not violate Department policy. The Court held that in light of the other allegations, a reasonable juror could have found this “investigation” to be pretextual. Finally, the Ninth Circuit found that the District Court erred in rejecting Ms. Thomas’ theory that the Sheriff Department employees who retaliated against Ms. Thomas were also the policymakers. The Court held that determining whether vicarious liability under Monell applied was a factual determination and not for the Court to make.

Class Certification Should Not Be Denied Based Solely On The Number Of Class Members
Hendershot v. Ready to Roll Transportation, Inc.
(Ct. of App. 2d Dist.), filed August 14, 2014

Chauffeur drivers filed a class action against Ready to Roll Transportation for failing to pay the drivers for periods when they were required to be on call between transporting clients. The drivers moved to certify the class, arguing that the proposed 53-member class was sufficiently numerous. Ready to Roll then produced arbitration agreements and settlement agreements with other class members. The arbitration agreements required that any matters be submitted to binding arbitration. As a result, the trial court denied certification since it found that, at most, after excluding those who settled or had arbitration agreements, there would only be nine (9) plaintiffs left. But the Court of Appeal rejected the trial court’s numerousity analysis. The Court first noted that the “ultimate issue in evaluating [numerousity] is whether the class is too large to make joinder practicable.” The Court emphasized that there was no set number of plaintiffs required to maintain a class action and that the “trial court’s bare conclusion that the remaining nine class members did not constitute a sufficiently numerous class -- without any analysis as to the ‘ultimate issue … [of] whether the class is too large to make joinder practicable’ -- was incomplete.” The Court also found that the plaintiffs’ due process rights were violated since they did not have “an adequate opportunity to conduct discovery and brief issues related to certification.”


City May Be Liable To Insurer For Inverse Condemnation And Nuisance For Fallen Tree
City of Pasadena v. Superior Court
(Ct. of App. Second Dist.), filed August 14, 2104

A city owned tree fell on James O’Halloran’s home during a windstorm. After paying Mr. O’Halloran’s $293,000 claim, Mercury Casualty Company sued the City for inverse condemnation and nuisance. The City moved for summary adjudication arguing: the tree was not a public improvement and could not be subject to inverse condemnation and the tree was not a nuisance because there was no evidence of negligent maintenance. The Court noted that the tree was part of the forestry program and was a result of: “(1) a deliberate governmental action (2) serving a public purpose.” Accordingly, the Court upheld the trial court’s decision finding that there was a question of fact as to whether the tree was part of a public improvement work. Turning to the nuisance cause of action, the Court found that the City “did not present evidence as to what kind of maintenance it was required to perform on the tree to prevent damage to O’Halloran’s property.” Therefore, the Court also held that the City failed to meet its burden to show that Mercury could not establish that the tree was a nuisance.

Employee Who Complained About Fraudulent Warranty Claims May Sue For Wrongful Termination In Violation of Public Policy
Yau v. Santa Margarita Ford, Inc.
(Ct. of App. Fourth Dist.), filed August 26, 2014

Eddie Yau sued Santa Margarita Ford, Inc. for wrongful termination in violation of public policy and intentional infliction of emotional distress. Yau alleged he had been fired for complaining about fraudulent warranty repair claims being submitted to Ford. He also alleged that he had been falsely accused of participating in the warranty fraud, causing his emotional distress. After several rounds of demurrers, the trial court ultimately sustained Santa Margarita Ford’s demurrer without leave to amend, finding that Yau “failed to identify a public policy that was violated by his termination because the policies and statutes he cited did not inure to the benefit of the public.” The trial court also found that Yau failed to allege any “extreme and outrageous conduct” to support the intentional infliction of emotional distress cause of action. The Court of Appeal reversed the trial court’s decision on the wrongful termination in violation of public policy. The Court found that Yau’s wrongful termination cause of action alleged “a public policy tethered to a statutory provision” -- theft (Penal Code §§ 484, 487) and fraud (Civ. Code §§ 1572, 1709). The Court of Appeal, however, concluded that the trial court properly sustained the demurrer without leave to amend on the intentional infliction of emotional distress claim. Primarily, the Court emphasized, “emotional injuries sustained in the course of employment are pre-empted by the workers' compensation scheme and generally will not support an independent cause of action.”



Our Dedicated Key Decisions Team! 

Lance LaBelle
Orange County

David Ezra
Orange County

Ann Johnston
S. F. Bay Area

Roberta Winston
San Diego


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