In January 2021, the California Court of Appeal agreed with Booth LLP in ruling that a investigating police officer who was designed as an expert witness was properly permitted to testify concerning the decedent's violation of relevant vehicle codes, and the lack of such violation by the defendant truck driver. In Garcia v. Gray, et. al. (2021 WL 163900, unpublished) the defendant truck driver and the company he worked for were alleged to have been negligent by passing too closely to the decedent bicycle rider on a busy multi-lane street. Defendants were permitted to question the investigating police officer, who had determined the cause of the accident to be the decedent, who turned into traffic after the tractor had passed, but while the trailer was moving parallel to the bicycle. Over multiple objections, the officer was permitted to state his finding of cause and his findings regarding alleged violations of vehicle codes. After a defense verdict was obtained, plaintiffs appealed, challenging the admissibility of the police officer's testimony. The Court of Appeal upheld the verdict, finding that a "police officer trained and experienced in the investigation of traffic accidents may give expert testimony as the facts and circumstances of an accident based upon his or her inspection of the scene and first-hand analysis of other relevant information." Further, the officer's testimony concerning the precipitating cause of the accident being the unsafe turn by the decedent was proper expert testimony. Regarding the vehicle code violations, the Court of Appeal found that admitting such testimony was within the Trial Court's discretion and did not constitute error.
Partners Hillary Arrow booth and Ian Culver handled the appeal, as well as the trial. For additional information, please contact Hillary Arrow Booth at Hbooth@BoothLLP.com
Loosened Restrictions on "No Re-Hire" Provisions in Employment Settlement Agreements
California Code of Civil Procedure section 1002.5, which went into effect on Jan. 1, 2020, prohibits "no-rehire" provisions in settlement agreements. These "no-rehire" provisions prevent, prohibit or otherwise restrict employees from obtaining future employment with the employer or a related entity. These provisions are prohibited from settlement agreements when an employee has filed a claim against an employer in either court or an administrative agency, or made a complaint through some form of alternative dispute resolution (ADR) or employer internal complaint process. This prohibition against "no-rehire" provisions does not apply to severance agreements. There is also an exception to this prohibition when an employer has made a "good faith determination" that the former employee engaged in sexual harassment or sexual assault.
However, AB 2143 was recently enacted which slightly modifies California Code of Civil Procedure section 1002.5. Specifically, it requires that the aggrieved former employee must have filed the claim in good faith in order for the prohibition against "no-rehire" provisions to apply.
It also expands this "no-rehire" exception to allow no-rehire provisions when the former employee engaged in any criminal conduct, rather than limiting the exception to sexual harassment or sexual assault.
Finally, AB 2143 clarifies that, in order to qualify for the "good faith determination" exception, an employer's determination must have been made and documented before the aggrieved person filed the claim or complaint.
Booth LLP Obtains Dismissal Of All Claims In A Mold-Based Fraud And Contract Suit
Booth LLP successfully defeated multiple fraud and contract-based claims brought against its client on behalf of a family of 6 plaintiffs, all claiming injury based on alleged mold contamination in a rented home. Booth LLP attorneys Jason Booth and Scott Greene represented a subcontractor in the remediation efforts, who was sued along with the property owners and other remediation contractors. Booth LLP successfully challenged the claims made in the initial Complaint, including Consumer Fraud, and convinced the Court to strike the accompanying demand for attorney’s fees. Plaintiff was given a chance to restate and augment their claims, and Booth LLP challenged that Amended Complaint. Despite the efforts by Plaintiffs’ attorneys, BOOTH LLP established that Plaintiffs could not allege any specific, allegedly fraudulent statements made by its client to any of the Plaintiffs, nor did it owe any duty to the Plaintiffs based on contract. Plaintiffs claimed both 3rd Party Beneficiary status and a “special relationship,” but Booth LLP was able to convince the Court to grant its second challenge without leave to amend as to all claims, effectively ending the case as to Booth LLP’s client.
California Expands Employers' Notice and Reporting Obligations
On September 17, 2020, Gov. Gavin Newsom signed AB 685 into law, expanding California employers’ notice and reporting obligations relating to COVID-19 in the workplace. In particular, under the newly enacted California Labor Code Section 6409.6, the requirement to notify employees of a potential exposure goes beyond guidance and becomes mandatory. Specifically, the new notice requires employers to take the below actions within one business day of a “potential exposure” based on a confirmed positive case of COVID-19 in the workplace.
The law also made changes to Cal-OSHA’s enforcement of COVID-19-related rules and regulations. AB 685 provides that Cal-OSHA can now shut down operations when, in the opinion of Cal-OSHA, a worksite or operation “exposes workers to the risk of infection” of COVID-19, so as to constitute an imminent hazard. AB 685 also modifies the process for when Cal-OSHA intends to issue a serious citation.
The law takes effect on January 1, 2021, and will remain in place until January 1, 2023. For further information or consultation, contact: Allan P. Bareng at ABareng@BoothLLP.com
Federal and State Court Rulings Conflict on Misclassification Standards
On November 19, 2020, the California Court of Appeal in State of California v. Cal Cartage Transportation Express, LLC (“Cal Cartage”) reversed the lower court’s finding that the new “ABC” test of worker misclassification, first set forth in Dynamex Operations W. v. Superior Court and later implemented by AB2257, is preempted by the FAAAA because the “ABC” test effectively prohibits motor carriers from using independent contractors. Contrary to this ruling, both the lower state court and the Federal Southern District of California in California Trucking Association, et al v. Attorney General Xavier Becerra, et al., (“Becerra”) have found that the “ABC” test has a significant, impermissible effect on motor carriers’ prices, routes, and services, requiring preemption.
On January 16, 2020, the Becerra court granted a preliminary injunction, barring the enforcement of the “ABC” test as against interstate motor carriers operating in California. The Becerra court recognized that the “ABC” test, and particularly prong “B” of the test, effectively prevents motor carriers from exercising their freedom to choose between using independent contractors or employees. In order to be considered an independent contractor under prong “B,” a worker must provide services that are outside the usual course of the hiring entity’s business. Thus, as read by the Southern District, the “ABC” test prohibits motor carriers from utilizing drivers to transport goods unless they are classified as employees.
Interestingly, the Southern District in Becerra had noted that the Los Angeles Superior Court in Cal Cartage agreed that because the “ABC” test effectively prohibits motor carriers from using independent contractors, it has a significant, impermissible effect on motor carriers’ prices, routes, and services, and thus, is preempted by the FAAAA. Now, however, that decision has been reversed by the Court of Appeal.
On January 30, 2020, the Becerra court’s preliminary injunction prohibiting enforcement of the “ABC” test as against interstate motor carriers was appealed to the U.S. Court of Appeals for the Ninth Circuit. On March 30, 2020, the Ninth Circuit denied the request of the plaintiffs to stay the preliminary injunction pending a final order on the appeal. The case has been briefed and argued in the Ninth Circuit, but no decision has issued as of this date.
It has long been expected that the issue of whether the “ABC” test is preempted by the FAAAA as applied to interstate motor carriers would make its way to the United States Supreme Court. The First Circuit previously held that prong “B” of Massachusetts’ “ABC” test (which contains the same language as California’s test) is preempted by the FAAAA. The federal district courts are split on the issue – the Eastern District of California has held that the FAAAA does not preempt application of the “ABC” test because it is a general classification test applicable to all employers and not motor carriers specifically, and does not, by its terms, compel a motor carrier to use an employee; the Northern District of California has held that the FAAAA does preempt part “B” of the “ABC” test; and the Southern District in Becerra found preemption and enjoined application of the test.
Now, it appears inevitable that the issue will be decided by the U.S. Supreme Court, leaving California motor carriers in limbo, which could last at least another year, maybe longer.
For additional information, contact Hillary Arrow Booth at HBoothLLP.com
California Enacts New Law Providing Additional Workers' Compensation Rights
Gov. Gavin Newsom recently signed S.B. 1159, which takes effective immediately. This law creates a presumption that certain covered workers' illnesses or deaths from COVID-19 are work-related, and entitles them to workers' compensation, putting the onus on their employers to rebut the presumption. Employers may seek to rebut the presumption by demonstrating measures it had taken to reduce the potential transmission, or showing a worker's non-occupational risks of infection. However, there is no assurance that these showings would necessarily rebut the presumption, which may lead to additional litigation.
Previously, Gov. Newsom had established a rebuttable presumption in an executive order that expired in July. This new law is retroactive to July, and unless extended, will be in effect until January 2023. Covered workers include workers who test positive during a workplace outbreak over a 14-day timeframe, along with first responders and health care workers who are covered even without a 14-day timeframe. Workers not covered by this new law may still file COVID-19 related workers' compensation claims. However, they are not entitled to the presumptions under the new law.
California Court Of Appeals Affirms Summary Judgement Obtained By Booth LLP
BOOTH LLP partners Paul Rasmussen and Ben Caplan, and senior associate Allan Bareng, defended a glass manufacturer in a wrongful death action which claimed that its products exposed plaintiff to silica dust and other alleged toxins, leading to his death from lung disease. BOOTH LLP successfully argued on summary judgment that their client's products could not, and did not, cause plaintiff's illness and death, since there was no evidence that the products had been cut or otherwise manipulated so as to cause a release of dangerous particulates. Without exposure, the court concluded, there could be no causation, and therefore summary judgment was warranted. Plaintiff appealed the decision, and the BOOTH LLP defense team drafted the successful Appellate Brief. The Second District Court of Appeal agreed with the trial court and affirmed the judgment unanimously, as well as awarded costs.
Hillary Booth Speaks On Covid-19 Issues For Law Firms
Hillary Booth was honored to speak on a webinar hosted by the Southwestern University School of Law Alumni Association. She spoke on the practical restrictions and guidelines for re-opening business and maintaining a safe work environment, on the financial impacts of COVID-19, and on financial relief options available for law firms of all sizes.
Office Update Re Covid-19
We hope that you and your loved ones are safe and healthy. Booth LLP remains fully functional and able to protect our clients' rights in new and ongoing cases, despite the interference caused by the COVID-19 outbreak. We are working remotely at full capacity. While we may not be available to immediately take a call, be assured that we will call you back at our earliest convenience. Be safe and stay well!
Our party was filled with holiday cheer, friends, and amazing food! As 2019 year comes to an end, we express our gratitude to our clients and to all those who support our firm. We truly appreciate you, and enjoy working with you!