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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Proper Statistical Sampling May Be Used To Prove Liability and/or Damages In Class Action Cases
Duran v. U.S. Bank National Association
(Cal. Sup. Ct.), filed May 29, 2014

Samuel Duran brought a wage and hours class action against U.S. Bank National Association. He alleged loan officers were misclassified as exempt employees under the “outside salesperson exemption.” Although the class consisted of 260 plaintiffs, the trial court determined USB’s liability by extrapolating from a random sample of 21 plaintiffs. USB was not permitted to introduce evidence about the work habits of any plaintiff outside this sample. The California Supreme Court held that statistical sampling may provide an appropriate means of proving liability and damages in some wage and hour class actions, but that the trial court’s particular approach was “profoundly flawed.”

Employee's “Off The Clock” Work Claim Failed Where Evidence Of Hours Worked Did Not Exist
Jong v. Kaiser Foundation Health Plan, Inc.
(Cal. Ct. of App., 1st Dist.), filed May 20, 2014

Henry Jong sued for unpaid overtime for alleged “off-the-clock” work as an hourly employee for Kaiser. The trial court granted Kaiser’s summary judgment motion because Jong could not show Kaiser knew or should have known he was working “off-the-clock.” The appellate court affirmed, noting that the evidence showed (1) Jong knew Kaiser’s policy was to pay for all hours worked including overtime, (2) Jong knew how to use the timekeeping system, (3) Jong signed a document prohibiting “off-the-clock” work, and (4) Jong was unable to recall the number of “off-the-clock” work hours he worked and kept no written record of those hours.

Employee Who Is Terminated For Failing To Perform Cannot “Save” Lawsuit By Arguing That Poor Performance Did Not Adversely Affect Employer
Serri v. Santa Clara University
(Cal. Ct. of App., 6th Dist.), filed May 28, 2014

Santa Clara University fired its Director of Affirmative Action for failing to produce Affirmative Action Plans for three consecutive years, even though her job required her to produce a plan annually. She sued for wrongful termination, claiming she was fired for her race and ethnic origin. The trial court granted the university’s summary judgment motion. The appellate court affirmed. It held an employee who is fired for failing to perform an important job function cannot avoid summary judgment by arguing, based on evidence developed sometime later, that the failure to perform did not and would not result in any adverse consequences to the employer.

Going And Coming Rule Applied Despite Second Shift
Lantz v. Workers’ Compensation Appeals Board
(Cal. Ct. of App., 5th Dist.), filed May 19, 2014

Lieutenant Seth Patrick Lantz, a correctional officer at Pleasant Valley State Prison, was killed in an automobile accident while on his way home from working a double shift at the prison. Lantz’s widow applied for workers’ compensation benefits, contending that Lantz sustained the fatal injury during the course of his employment. The Workers’ Compensation Appeals Board denied the application for benefits, concluding that the hold-over shift was not so extraordinary so as to bring Lantz’ trip home within the “special mission” exception to the “going and coming rule.” The appellate court affimred, finding that substantial evidence supported the conclusion.


Government Tort Claims Act Barred Claims That Were Tied To City's Approval Of Real Estate Project
Gong v. City of Rosemead
(Cal. Ct. of App., 2d Dist.), filed May 20, 2014

Tammy Gong and L&G Rosemead Garden LLC sued the City of Rosemead. They allege that while their proposed real estate project was proceeding through the City’s approval process, John Tran, the City’s mayor, “extracted” $38,000 in “loans” from Gong, refused to repay her, and then set about a retaliatory course of conduct to prevent the approval of the project, after Gong refused to provide Tran with additional funds and continuously rejected his sexual overtures. Gong also alleged that Tran physically assaulted her and threatened to kill her. The trial court sustained the City’s demurrer without leave to amend and granted its motion to strike the complaint. The appellate court affirmed, ruling that the claims were subject to the claim presentation requirements and the immunity provisions of the Government Tort Claims Act.

The Confidentiality Of Medical Information Act Affords Limited Disclosure Protection
Eisenhower Medical Center v. Superior Court
(Cal. Ct. of App., 4th Dist.), filed May 21, 2014

A computer with 500,000 clerical records was stolen from Eisenhower Medical Center. The information included each person’s name, medical record number, age, date of birth, and last four digits of the person’s Social Security number. Individuals whose names were on the index brought a class action against EMC for violating the Confidentiality of Medical Information Act. EMC was entitled to a summary judgment because while there was a disclosure or release of “individually identifiable information,” it was not medical information.

Simple Slip And Fall Does Not Support Elder Abuse Claim
Worsham v. O’Connor Hospital
(Cal. Ct. of App., 6th Dist.), filed April 23, 2014

Juanita Worsham went to O’Connor Hospital for surgery to treat a fractured hip. After the surgery, during rehabilitative care, she fell and broke her right arm and re-broke her hip. She sued for professional negligence and elder abuse. She alleged the Transitional Care Unit was understaffed and undertrained. The court held that her allegation did not support an elder abuse claim.



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Orange County

David Ezra
Orange County

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S. F. Bay Area

Roberta Winston
San Diego



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Principal Lance LaBelle in ‘Mediation as Music’ for the Orange County Bar Association
July 24, 2014
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