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.

WE ALWAYS LIKE TO HEAR WHAT YOU THINK. Send us feedback on our newsletter to

Failure To Perform Preventative Maintenance Raises A Triable Issue Of Fact For Gross Negligence Claim
Chavez v. 24 Hour Fitness USA, Inc.
(Ct. App. 6th Dist.), filed July 8, 2015

Stacey Chavez suffered a traumatic brain injury when the back panel of a cable crossover machine struck her in the head at a 24 Hour Fitness. Chavez sued for ordinary and gross negligence, premises liability, and strict products liability. In response, 24 Hour moved for summary judgment, arguing that the signed written release in Chavez’ membership agreement was a complete defense to her negligence and premises liability claims. Also, 24 Hour argued that it was not in the chain of distribution and could not be liable for products liability. Finally, it argued that Chavez could not show “extreme departure from the ordinary standard of care” for the gross negligence claim because 24 Hour had hired a technician who was responsible for preventative equipment maintenance. Chavez argued that there was no evidence that “anyone actually performed preventative maintenance on the cross-trainer prior to the accident.” The 24 Hour area manager John Reb testified that the maintenance chart did not show that anyone actually performed the maintenance called for on the chart. The trial court granted summary judgment, reasoning that failing to maintain the machine was “a common enough occurrence that no reasonable juror could find it to be such an ‘extreme departure from the ordinary standard of conduct’ as to constitute gross negligence.” The Court of Appeal reversed, holding that the empty maintenance logs supported the inference that preventative maintenance consistently was not performed at the facility.” Therefore, a trier of fact could conclude that 24 Hour “failed to exercise scant care or demonstrated passivity and indifference toward results.”

No Independent Contractor Relationship Found Where Company Exercised “Tremendous Control” Over Truck Drivers
Garcia v. Seacon Logix, Inc.
(Ct. App. 2nd Dist., Div. 4), filed July 16, 2015

Truck drivers Romeo Garcia, Eddy Gonzalez, Wilmer Urbina, and Desiderio Aguilar sued Seacon Logix, Inc. for paycheck deduction reimbursements, claiming they should have been classified as employees, and not independent contractors. After a bench trial, the trial court agreed and awarded damages for paycheck deductions. Seacon appealed, arguing that there was no substantial evidence supporting that the truck drivers were employees. Prior to 2008, the truck drivers owned their own trucks and were classified as independent contractors. In 2008, regulations prohibited the use of older trucks so Seacon provided the trucks for their drivers, requiring them to enter into lease agreements with the company. The drivers were required to enter into a series of other agreements, including the sub-haul agreement which specified that the company would determine “when a load is to be picked up, the selection of routes, the delivery time, [the driver’s] working hours, [the driver’s] insurance coverage, and the method of financing” the vehicle. The drivers were told when to arrive each day. They were also instructed to inform Seacon when they were absent. Seacon was also their exclusive source of income -- they did not have any other outside businesses. The Court of Appeal agreed that the Seacon exerted “‘tremendous control’ over the drivers because if they did not comply with Seacon’s requirements, they would lose their trucks.” The Court rejected the language in the agreements, labeling the drivers as “independent contractors,” recognizing that the “label is not dispositive” and that the “actual conduct establishe[d] a different relationship.” The Court also noted that the strong evidence of other factors supported an employment relationship: (1) the company had a right to discharge at will, without cause; (2) the workers were part of the core business operation; (3) Seacon controlled the truck drivers’ work throughout the day; (4) Seacon owned the trucks and did not allow drivers to use the trucks for any other purpose; and (5) the drivers were paid by the hour.

Accidental Death Benefits Properly Denied For Death Resulting From Lengthy Air Travel
Williams v. Nat’l Union Fire Ins. Co.
(Ct. App. 9th Cir.), filed July 7, 2015

An acclaimed horticulturist, Jack Williams, had been traveling from Los Angeles to Tokyo, then to other Australian cities. Williams suddenly died from Deep Vein Thrombosis, which triggered a pulmonary embolism after 28-hours of air travel in a five-day period. His life insurance company, National Union Fire Insurance Company, denied his accidental death benefits because his death did not result from an “accident” under the policy. The District Court agreed with National Union’s interpretation and granted summary judgment in its favor. The Ninth Circuit affirmed. National Union’s policy defined injury as bodily injury “which is sustained as a direct result of an unintended, unanticipated accident that is external to the body . . . which directly (independent of sickness, disease, mental incapacity, bodily infirmity or any other cause) causes a covered loss . . . .” National Union noted that Williams’ death was instead the “result of a sickness, disease, bodily infirmity or a cardiovascular accident or event, an internal reaction of his body to an extended period of inactivity.” Williams’ family argued that there should have been coverage because Williams’ death “resulted from circumstances that originated outside his body.” But the Ninth Circuit rejected that theory, finding that coverage turned on “whether there were external, harm-causing circumstances that were themselves unexpected and unintended.” While Williams confined to his seat during extended periods of air travel may have been an external cause of his death, “there was nothing ‘unintended’ or ‘unanticipated’ -- i.e., nothing accidental -- about his seating arrangement.” Since William’s fatal injury “did not directly result from an unintended and unanticipated happening ‘external to the body,’” summary judgment in National Union’s favor was proper.


County Not Liable For Social Worker’s Sexual Assault Of Foster Child
Z.V. v. County of Riverside
(Ct. App. 4th Dist., Div. 3), filed June 17, 2015, ordered published July 16, 2015

Riverside County social worker Sean Birdsong sexually assaulted fifteen year old, Z.V. Z.V. sued Riverside County under the doctrine of respondent superior. Birdsong was not the social worker assigned to Z.V. Birdsong had volunteered to give Z.V. a ride to a new foster home at the end of the day. Several hours after Z.V. had arrived at his new foster home, Birdsong picked Z.V. up, took him to a liquor store, then back to Birdsong’s apartment where the sexual assault took place. Distinguishing Mary M. v. City of Los Angeles, where a city was held liable for a city police officer raping a female motorist during a late night traffic stop, the Court of Appeal affirmed the trial court’s summary judgment order in the County’s favor. The Court of Appeal noted that Mary M. had to be applied in the very narrow context of a uniformed officer’s arrest.


Our Dedicated Key Decisions Team! 

Lance LaBelle
Orange County

David Ezra
Orange County

Ann Johnston
S. F. Bay Area

Roberta Winston
San Diego
Orange County

Featured Events
Principal and ADR Section Chair Lance LaBelle Invites You To ADR Section Meeting
September 21, 2015
Orange County Bar Association

Managing Partner Craig Simon to Present at Southern California Fraud Investigators' Board
November 5, 2015
Southern California Fraud Investigators' Association

In The News

Los Angeles Magazine Features 2015 Southern California Super Lawyers List of “Top Women Attorneys” – Recognizing Two Berger Kahn Attorneys
August 10, 2015
Los Angeles Magazine

O.C. Lawyer Features Principal David Ezra in Mediation Column
August 1, 2015
OC Lawyer

Berger Kahn Promotes Erin Mindoro to Principal
August 1, 2015
LA Daily News

Attorney Journal Features Principal Lance LaBelle in Attorney Journal for Speaking on OCBA Alternative Dispute Resolution Panel
July 13, 2015
Attorney Journal

Daily Journal Features Employment Law Column on Nail Salon Employment Issues by Attorney Erin Mindoro
June 12, 2015
Daily Journal

Berger Kahn Recognized in Wall Street Journal as One of “California’s Top Ranked Law Firms” for 2015
June 17, 2015
Wall Street Journal

Principal David Ezra Presented “Persuasive Legal Writing: Strategies and Tactics” at QDR Mediation
June 12, 2015
QDR Mediation

O.C. Bar Association Commends Berger Kahn Attorneys for Selection to Super Lawyers “Top” Lists
June 11, 2015

Attorney Erin Mindoro Recognized to List of Super Lawyers “Rising Stars” “Up-and-Coming”
June 5, 2015
Super Lawyers

CNN iReport Features Principal Sherman Spitz in “A Trial Lawyer's Quest to be a Juror”
June 3, 2015

Most Read Articles

Appraisal Scope Is Not As Limited As Sharma And Kacha Might Have Suggested
Li-Lin Sung Lee v. California Capital Insurance Company
(Ct. App., 1st Dist., Div. 3), filed June 18, 2015

Passenger Potentially Liable For Fatal Accident After Encouraging Driver To Speed Over Dips
Navarrete v. Meyer
(Ct. App. 4th Dist. Div. 1), filed June 22, 2015
 This Berger Kahn communication is intended to inform our clients and friends of recent developments in the law and to provide information of general interest. It is not intended to contain legal advice. Use of and access to this email service do not create an attorney-client relationship between Berger Kahn and the recipient, reader, or user. Portions of this communication may contain attorney advertising and may be considered an advertisement for certain purposes. Please direct all inquiries regarding Rules of Professional Conduct to Craig Simon, Berger Kahn, 2 Park Plaza, Irvine, CA 92614. Phone: 949-474-1880. © 2015 Berger Kahn ALC. All Rights Reserved. To stop receiving this Berger Kahn e-newsletter, please use the links in the footer below. 
About Berger Kahn
Berger Kahn is a multi-service, California-based law firm representing local, regional and national clients in a broad range of areas, including Appellate, Business Practices, Insurance, Labor and Employment, Litigation, Personal Injury and Real Estate.

Copyright 2015. Berger Kahn, A Law Corporation. All rights reserved.

 unsubscribe from this list | update subscription preferences