Hillary Booth Speaks on Contract Drafting for Transportation Companies

Ms. Booth was honored to be selected to speak at the Chicago Regional Conference of the Transportation Lawyers Association. Along with attorneys from around the country, Ms. Booth spoke generally regarding the negotiation and preparation of standard and unusual contracts used by freight brokers, motor carriers, and shippers. Ms. Booth's panel focused on problem provisions and creative ways to assist clients in achieving final contracts that benefit their business and reduce risk where possible.

Booth LLP Obtains Dismissal of Intellectual Property Claims

Hillary Arrow Booth and Benjamin Caplan of Booth LLP, on behalf of our client Mothership Technologies, Inc., obtained a dismissal in the United States District Court for the Central District of California (Selna, J.) when their Motion to Dismiss all claims was granted. Mothership is a freight broker. In May 2022, Plaintiff AK Futures LLC named Mothership as a Defendant asserting that it, along with a dozen other named defendants, was a member of a counterfeiting operation involving Plaintiff’s electronic vaping products and was liable for hundreds of millions of dollars in damages under the Copyright Act and the Lanham Act. Booth LLP moved to dismiss, resulting in Plaintiff voluntarily filing a further amended complaint, again alleging that Mothership was liable for both direct and contributory trademark and copyright infringement of Plaintiff’s products. Booth LLP once again moved to dismiss, and on September 28, 2022, the Court issued an order granting the motion, but allowed Plaintiff leave to amend certain claims. On October 18, 2022, Plaintiff filed a third amended complaint that once again alleging Mothership knowingly participated in the counterfeiting operations of other defendants. On November 1, 2022, Booth LLP filed a third motion to dismiss, arguing that Plaintiff’s claims were not plausible give the nature of Mothership’s business and the conclusory facts alleged, and that the allegations failed to state a claim under applicable federal pleading standards. The Court agreed, and on December 7, 2022, issued an order dismissing Plaintiff’s claims against Mothership without leave to amend.

The case is AK Futures LLC v. LCF Labs Inc., USDC Central District of California Case Number 8:21-cv-02121-JVS-ADS

Booth LLP Defeats Fire Claims of 472 Plaintiffs at Trial

Jason Booth, Benjamin Caplan, and Azniv Khararjian of BOOTH LLP obtained a 12-0 defense verdict following a three-week jury trial in Los Angeles Superior Court (Complex Case Division). The trial focused on the cause of a large 2016 industrial fire at a metal scrap yard. The plaintiffs were 472 residents of the surrounding neighborhood, who claimed they suffered property damage as a result of the fire. The Plaintiffs claimed the fire had been caused by a catastrophic failure of the defendant utility company’s near-by electrical transformer. Plaintiffs had initially brought suit against the owner of the scrap yard, and the operator of an illegal precious metal reclamation operation, hidden in a warehouse inside the scrap yard. Plaintiffs later added the utility company based on the scrap yard owner’s claim that the fire started when the transformer exploded.

The jury heard testimony from more than 30 witnesses, including multiple firefighters and HazMat officers, fire investigators, and a DTSC representative. The jury was presented with dozens of photos and diagrams of the scene, and heard the testimony of several technical experts regarding electrical engineering, fire science and investigation, hazardous material handling and safety, chemistry, and metallurgy. However, at the close of the trial, the jury deliberated for less than hour before it returned a unanimous defense verdict for the defendant utility company, finding that the fire had not been caused by the transformer.

Along with co-defense counsel, Casolari & Zell, the defense of the utility company focused on (1) proving that the transformer did not explode, as plaintiffs claimed, and therefore could not have been the start the fire; (2) proving that the fire had traveled from the warehouse toward the power pole, not the other way round, as Plaintiffs claimed; and (3) proving that the fire probably started in the warehouse sublet by the property owner to an unpermitted and illegal precious metal reclamation operation which was stripping the metals from old circuit boards and other e-waste, using powerful acids and other potentially explosive materials. BOOTH LLP presented compelling evidence that based on their operations, there were numerous, significant fire hazards present in the building at the time of the fire, and a significant risk of spontaneous combustion. The jury agreed and found that the transformer was not the cause of the fire. Without the element of causation, all of the Plaintiffs’ claims necessarily failed.

Significantly, prior to trial, BOOTH LLP was able to eliminate the Plaintiffs’ Inverse Condemnation claim though a Motion for Summary Adjudication, thereby removing the risk of possible strict liability and eliminating the availability of an award of attorney’s fees to the plaintiffs, had they been successful.

Booth LLP Solidifies Meal and Rest Break Preemption for Interstate Drivers

Booth LLP congratulates Hillary Arrow Booth and Allan Bareng on obtaining a favorable ruling for our clients, and the trucking industry, upholding the preemption of California’s meal and rest break laws as applied to short haul interstate drivers. (Espinoza v. Hepta Run, Inc, et al. https://www.courts.ca.gov/opinions/documents/B306292.PDF)

In 2018, after extensive review and analysis, the Federal Motor Carrier Safety Administration (“FMCSA”) issued an order stating that the California meal and rest break rules (Cal. Lab. Code § 226.7) were preempted by federal law as applied to interstate commercial drivers subject to the federal hours of service (“HOS”) regulations. The analysis included a finding that the California rules were more stringent than the corresponding federal HOS regulations and did not contain any additional safety benefits. Since that time, plaintiffs’ attorneys have sought to limit the impact of the federal preemption, focusing largely on what they argued was a short haul exemption to the preemption.

In the Espinoza case, Booth LLP represented Hepta Run, Inc. against plaintiff Guillermo Espinoza who asserted causes of action for Labor Code wage and hour violations, unfair business practices in violation of California’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.) and representative claims for penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). We moved for summary adjudication on the fifth and sixth causes of action alleging systematic failure to provide meal and rest periods, arguing the California statutes governing meal and rest periods were preempted as stated in the FMCSA order. In opposition, plaintiff argued that the federal regulations did not apply to short haul truck drivers like him. His position was that because short haul drivers are exempted from the 30-minute rest break rule contained within the HOS, the preemption order does not apply to them. The trial court agreed with plaintiff and denied the summary adjudication motion on July 30, 2019.

After trial, Hepta Run appealed a number of issues, including the denial of the motion for summary adjudication. On Appeal, plaintiff made the same argument as he did to the trial court. Contrary to the trial court, the Court of Appeal recognized that the preemption order expressly applies to all drivers subject to the HOS regulations, and that short haul drivers are subject to those regulations even though they are exempted from the rest break rule. The Court of Appeal declined to adopt the “strained and cramped interpretation” of the preemption order urged by plaintiff and instead agreed with our position that the preemption order does not exclude short haul drivers even though they are exempted from the rest break portion of the HOS regulations.

In particular, the Court of Appeal found regarding short haul drivers: “The fact that those drivers are exempted from one rule does not remove them from the universe of drivers subject to the hours of service rules, and it is not reasonable to read the language of the order to suggest they are.” Further, “[g]iven that short haul drivers are not required to take any specified rest breaks under the federal rules, the Agency’s [FMSCA’s] concern over California’s additional rest break requirement would be heightened for short haul drivers, not diminished. Accordingly, the FMCSA’s reasoning supports applying preemption to short haul drivers rather than excluding them.”

This published opinion is good news for all motor carriers operating in California as it shuts the door on plaintiffs’ attorneys repeated attempts to create a short haul exemption, and will allow other motor carriers to more easily defeat similar claims.

Welcome to Azniv Khararjian

We are pleased to welcome Azniv to our firm. Azniv graduated from the University of California in 2011 with BA in Politics, and obtained her Juris Doctorate degree in 2021 from California Western School of Law. Azniv brings to us her significant experience gained as a paralegal working with expert witnesses in analyzing liability and damages, and in preparing for trial. Prior to joining Booth LLP, Azniv worked for local litigation firms analyzing medical records, conducting legal research, drafting written discovery, and related motions, and preparing agreements. While attending law school, Azniv worked as an extern for New Media Rights, an independently funded non-profit program of California Western School of Law that provides legal services to creators, entrepreneurs, journalists, and internet users. She also worked for a local law firm where she supported attorneys in both state and federal litigation, including thorough legal research, preparing and serving discovery, and filing motions and stipulations.

Welcome to Madison Romine

Earlier this year, we welcomed Madison to our firm as a law clerk while she waited for the results on her California bar exam. We now congratulate Madison on passing the bar and becoming a California attorney. Madison graduated from Arizona State University with a BA in Broadcast Journalism in 2016 and obtained her Juris Doctorate from Belmont University College of Law in 2021. Before joining Booth LLP, Madison served as an extern for the Honorable Justice Brian M. Hoffstadt of the Second District of the California Court of Appeal, where she worked on a variety of civil and criminal appeals. She also interned at a boutique criminal defense firm in Nashville, Tennessee, focusing on client intake, discovery, and trial preparation. Prior to law school, she worked as a production assistant for the Los Angeles Kings, shooting and editing videos for social media, the Kings’ website, and in-game entertainment at Staples Center.

Trial Victory For Booth LLP's Client

On November 4, 2021, Benjamin Caplan and Madison Romine of BOOTH LLP obtained a 12-0 plaintiff’s verdict following a three-day jury trial in Los Angeles Superior Court. The trial focused on the enforcement of a promissory note signed by the Defendant as a condition for Plaintiff investing in a musical and television adaptation of a biography written by Defendant about one of his clients -- a famous comedian and talk-show host. The Defendant asserted that the parties had a separate oral agreement that the Note would not be enforced against him in his individual capacity, and it would only become due if the adaptation was profitable. The Defendant also asserted, as an alternative defense, that the amounts covered by the Note had been written off in Chapter 7 Bankruptcy.

The jury heard testimony from only two witnesses: the Plaintiff and the Defendant, who himself is a longtime attorney. BOOTH LLP presented compelling evidence that based on other contracts, documents, and correspondence between the parties and related to the business venture, the Defendant knew that the Plaintiff would only provide additional funding if the Defendant signed the promissory note individually, so that the Plaintiff would be protected should the business venture fail. They were also presented with a series of financial transactions in which the Plaintiff gave the Defendant hundreds of thousands of dollars for the furtherance of a new business venture, as well as correspondence between the parties and others involved in the venture. At the close of the trial, the jury needed less than three hours before it returned a unanimous verdict for $500,000.00 in favor of BOOTH LLP’s client.

Booth LLP Wins Bus Accident Case at Trial

In May 2021, Hillary Booth and Derek Lawson successfully defended a transport bus company and its driver against a complaint alleging negligence after a four-car accident took place in a busy intersection in Riverside, CA. Hillary and Derek established that an on-duty Riverside police officer's negligence was the cause of the accident, and that the firm's clients we not liable to the plaintiff. The case involved complicated legal issues concerning the immunity of the police officer and the impact of that immunity on the apportionment of liability. Plaintiff has appealed the case to the California Court of Appeals.

Booth LLP Upholds Defense Verdict on Appeal

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.

For further information or consultation, contact Allan P. Bareng at ABareng@BoothLLP.com.

The full text of AB 2143 can be found here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB2143