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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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Primary Assumption Of The Risk Doctrine Bars Haunted House Patron's Personal Injury Claim
 
Griffin v. The Haunted Hotel, Inc.
(Ct. App., 4th Dist., Div. 1), filed October 23, 2015

Scott Griffin went to “The Haunted Trail” experience where actors jumped out of dark spaces to scare patrons. Griffin was exiting the experience when he was confronted by the “final scare” which included an actor carrying a chainsaw. Griffin ran away and was injured in the process. Griffin sued the Haunted Hotel (who operated the Haunted Trail) for negligence and assault. The Haunted Hotel moved for summary judgment. Griffin opposed, arguing that he had not been injured on the trail, but while he was running away and thought he had already exited the trail. The trial court granted the Haunted Hotel’s summary judgment motion, finding that under the primary assumption of the risk doctrine, the Haunted Hotel had no duty to protect Griffin from risks inherent in the activity. The Court of Appeal affirmed, finding that the possibility that “a patron will be frightened, run, and fall is inherent in the fundamental nature of a haunted house attraction like The Haunted Trail.” The Court also found that there was no evidence that the Haunted Hotel unreasonably increased the risk of injury beyond the inherent risks.






Primary Assumption Of The Risk Barred Delivery Driver's Negligence Claim Where Shipper Understated Box Weight
 
Moore v. William Jessup University
(Ct. App. 3rd Dist.), filed December 28, 2015

United Parcel Service delivery driver Stephen Moore was injured when he lifted a box with an inaccurate shipping label that William Jessup University had prepared. Moore sued the University for negligence. The University moved for summary judgment. Moore argued that while he was a professional delivery driver, the University “increased the risk of injury to him by failing to state the true weight of the box and by failing to use highlighted tape to mark the box.” The trial court granted summary judgment, concluding that the doctrine of primary assumption of risk barred the lawsuit. The Court of Appeal affirmed. It found that the University could not be liable for risks inherent in Moore’s job. UPS did not require its customers to weigh packages before mailing them, and the evidence showed that customers sometimes misjudged the weight it specified on shipping labels. UPS instructed its drivers on proper lifting techniques to use, and trained drivers on how to test the package weight before attempting to lift the package. The Court recognized that mislabeling the package did not increase “the risks beyond those that were inherent in Moore’s job.”






No Coverage For Minor's Truck Accident Where Father Specifically Excluded The Truck From His Insurance Policy
 
Nationwide Mutual Insurance v. Shimon
(Ct. App. 3rd Dist.), filed December 3, 2015

Minor driver Simone Lionudakis (Simone) was driving her father’s pick up truck, when she got into an accident, injuring Aweia Shimon and Flora Shimon. Simone’s father had excluded Simone from coverage on his policy to save money, even though Simone was the only person who drove the truck. Simone’s parents put some restrictions on her use of the truck, but the truck was generally available for her sole use. Simone’s mother, Kristen Doornenbal (who was remarried), was insured through Nationwide for her own vehicles (but did not insure the truck Simone was driving). Doornenbal’s Nationwide policy provided coverage for a household family member’s non-owned vehicle, but not if the vehicle was available for “regular use.” The trial court found that the truck was available for Simone’s regular, if not, exclusive use. It noted that “the evidence is clear that Simone’s use of the GMC was far beyond occasional and that it was regularly available to her for over a year before the subject accident.” On appeal, the Shimons argued that Simone did not have “regular use” of the vehicle because her parents put some restrictions on her driving the truck. But the Court of Appeal affirmed the judgment, noting “Simone was the exclusive user of the car owned by her father, who deliberately excluded it from his insurance policy to save money.” The Court remarked, that this was “exactly the abuse the ‘regular use’ exclusion is designed to prevent.”






OTHER CASES OF INTEREST:


Trial Court Required To Give Litigant Neutral And Accurate Guidance About The Requirements For Entering A Default Judgment
 
Holloway v. Quetel
(Ct. App., 2nd Dist., Div. 7), filed December 14, 2015

Purvis Holloway was an incarcerated and self-represented litigant who filed a lawsuit against Talia Quetel and Antonio McDaniels for unpaid rent and damages to a rental property. Holloway personally served the summons and complaint, and a default was later entered against Quetel and McDaniels for failing to respond to the complaint within 30 days. Holloway made several unsuccessful attempts to obtain a default judgment. The trial court, on its own motion, issued an order to show cause to strike the complaint for failure to state a cause of action. The trial court struck the complaint, set aside the defaults, and granted Holloway leave to file an amended complaint. When Holloway failed to amend the complaint, the trial court dismissed the action. The Court of Appeal found that the complaint adequately alleged damages, and ordered the trial court to reinstate the complaint and the defaults. Holloway continued his efforts to enter a default judgment. After several failed attempts, the trial court dismissed the case without prejudice for failure to prosecute. On appeal, the Court noted the difficult nature of dealing with incarcerated and self-represented litigants. And while the trial court had been patient with Holloway, it did not clearly identify defects or omissions as it normally would. The Court of Appeal emphasized that “the court appears not to have recognized its discretion to give neutral (and accurate) guidance to Holloway about the requirements for entry of a default judgment -- ‘reasonable steps, appropriate under the circumstances, to enable the litigant to be heard.’” The Court then reversed the judgment and remanded the matter with explicit instructions on what Holloway should file for his default judgment motion. 



 


Employee's Oral Complaints To Management Were “Fair Notice” Under The Fair Labor Standards Act’s Anti-Retaliation Provision
 
Rosenfield v. GlobalTranz Enterprises
(9th Cir. Ct. App.), filed December 14, 2015

GlobalTranz Enterprises provided transportation management services. Human Resource Director Alla Rosenfield repeatedly reported to upper management that the company was not complying with the Fair Labor Standards Act (FLSA). After she was fired, Rosenfield sued GlobalTranz, alleging that it had violated the FLSA’s anti-retaliation provision. The District Court granted summary judgment in GlobalTranz’ favor, finding that Rosenfield was not entitled to the FLSA’s protections since she had only advocated for other GlobalTranz’ employees, and had not for herself. Summary judgment was reversed. The Ninth Circuit noted that the United States Supreme Court (in Kasten) had previously upheld a “fair notice” test for deciding whether an employee had “filed any complaint” under the FLSA. Under Kasten, a complaint “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for protection.” The Court reasoned that complaints from managers (like Rosenfield) may be seen differently than entry-level employee complaints because managers were expected to report to upper management about the company. Rosenfield, however, had been very vocal about her complaints and raised the FLSA violations “in at least 27 weekly and monthly reports to her supervisors.” The Ninth Circuit recognized that Rosenfield’s “superiors actually understood (or reasonably should have understood) that Plaintiff was asserting rights protected by the FLSA and was calling for their protection.” It also held that because FLSA compliance was not part of Rosenfield’s duties, her advocacy for the employees’ rights could not be seen as part of her regular responsibilities. 


 

 


Storage Unit Protection Plan Was A Rental Addendum And Not Subject To The Insurance Code
 
Heckart v. A-1 Self Storage Inc.
(Ct. App. 4th Dist., Div. 1), filed December 30, 2015

Samuel Heckart sued A-1 Self Storage (and other related entities) alleging that the customer goods protection plan A-1 sold constituted an unlicensed sale of insurance. For an additional monthly fee, the protection plan allowed customers to opt in for protection for up to $2,500 for losses to the property stored at the facility. Deans & Homer (a licensed insurance underwriter, agent, and broker) provided A-1 with the template for the protection plan. The trial court sustained A-1’s demurrer without leave to amend, finding that the protection plan was not insurance. It concluded that the contract’s primary purpose was to rent the premises. Here, the parties were merely allocating risk in that for additional rent, the risk of damage shifted to the lessor. The Court of Appeal affirmed. The Court found that the protection plan was an “addendum to and dependent on the Rental Agreement.” It noted that the parties were free to allocate the risk. The Court emphasized, allowing “parties to shift the risk of property damage” does not turn a storage rental agreement into an insurance policy. 

 

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Orange County


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San Diego


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S. F. Bay Area
 

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Orange County
  
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HG Legal Resources Features Attorney Orlando Arellano and Principal David Ezra in New Column "New Law Offers Piece Rate Employers a Possible 'Get Out of Jail Free' Card"
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