CIVIL LITIGATION - Doctrine of fair procedure-The common law doctrine of fair procedure protects against arbitrary decisions by private organizations under certain circumstances. When the doctrine applies, private entities may not expel or exclude qualified persons without acting in a manner that is substantially rational and procedurally fair. (See Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060.) [In this case, an occupational medical clinic was denied admission to a preferred provider network operated by State Compensation Insurance Fund in violation of the fair procedure doctrine.] Palm Medical Group, Inc. v. State Compensation Insurance Fund 10 WCAB Rptr. 10,106 ___Cal.App.4th___

CIVIL LITIGATION - Employment discrimination-Fair Employment and Housing Act-Government Code §12940-A wrongful termination case filed under the Fair Employment and Housing Act for violation of public policy may be based on a violation of Labor Code §132a. [In this case, there was no discrimination because the employee was not physically able to perform her regular job.] See Jordan v. Workers' Comp. Appeals Bd. (1985) 175 Cal.App.3d 162.) Leticia Williams v. County of San Bernardino Probation Department 10 WCAB Rptr. 10,091 ___Cal.App.4th___

CIVIL LITIGATION - Asbestos litigation–The Locomotive Boiler Inspection Act (49 United States Code §20702 et seq.) exempts railroad employees' state law actions against manufacturers of locomotives containing asbestos materials. (See Napier v. Atlantic Coast Line (1925) 272 U.S. 605.) Iola Frastaci v. Vapor Corporation 10 WCAB Rptr. 10,044 ___Cal.App.4th___

CIVIL LITIGATION - General/Special employer determination–Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, the employee may be held to have two employers––his original or "general" employer and a second, the special employer. (See Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168.) __Cal.App.4th___

CIVIL LITIGATION - Factors to be considered in determining special employer/employee relationship–The relevant factors to be considered in determining whether a special employment relationship exists include: (1_ The right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not; (2) whether the borrowing employer's control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (3) whether the employee is performing the special employer's work; (4) whether there was an agreement, understanding, or meeting of the minds between the original and special employee; (5) whether the employee acquiesced in the new work situation; (6) whether the original employer terminated his relationship with the employee; (7) whether the special employer furnished the tools and place for performance; (8) whether the new employment was over a considerable length of time; (9) whether the borrowing employer had the right to fire the employee; and (10) whether the borrowing employer had the obligation to pay the employee. (See Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848.) Christopher Carpenter v. Universal City Studios LLLP 10 WCAB Rptr. 10,025 __Cal.App.4th___

CIVIL LITIGATION - Governmental investigatory immunity–Government Code §821.6–Videotape surveillance of workers' comp claimant by a public entity is barred by governmental investigatory immunity and the claimant cannot sue for damages based on an invasion of privacy. Klare Richardson-Tunnell v. School Insurance Program for Employees and Lucia Mar Unified School District 10 WCAB Rptr. 10,006 ___Cal.App.4th___

CIVIL LITIGATION - Consolidation of asbestos cases for trial–Code of Civil Procedure §1048–The criteria for evaluating whether a trial court has abused its discretion in consolidating asbestos cases include: (1) common worksite, (2) similar occupation, (3) similar time of exposure, (4) type of disease, (5) whether injured workers are living or deceased, (6) status of discovery in each case, (7) whether all plaintiffs are represented by the same counsel, and (8) type of cancer alleged. Foster Wheeler LLC v. Superior Court of San Francisco County, Jersey Gray 9 WCAB Rptr. 10,356 ___Cal.App.4th___

CIVIL LITIGATION - Relation back doctrine–Wrongful death and loss of consortium claims do not relate back to the decedent's original personal injury claim. (See Bartalo v. Superior Court (1975) 51 Cal.App.3d 526.) [In this case, the plaintiff's husband filed a lawsuit alleging non-cancerous asbestos injuries. Four years after the lawsuit was filed, he developed asbestos-linked lung cancer and died. His wife then filed an amended complaint asserting wrongful-death claims for herself and on behalf of her children. Plaintiffs failed to secure a trial on the amended complaint within five years of filing the original complaint and the entire lawsuit was found by the Court of Appeal to have been erroneously dismissed. Carol Brumley v. FDCC California, Inc., et al. 9 WCAB Rptr. 10,343 ___Cal.App.4th___

CIVIL LITIGATION - Power press exception to exclusive jurisdiction of workers' compensation–Labor Code §4558–Whether an injury-causing machine is a power press is a factual question. (See Islas v. D&G Manufacturing Co., Inc. (2004) 1120 Cal.App.4th 571.) In this case, the issue was improperly resolved by the trial court by a motion to dismiss that did not afford the procedural safeguards of a motion for summary judgment pursuant to Code of Civil Procedure §437c [service of motion 75 days before the hearing, separate statement of material facts the moving party contends are undisputed, an initial burden of the moving party to show there is not trial issue as to any material fact, a requirement that the trial court deny or continue the motion for further discovery upon good cause shown by the opposing party, and, if the motion is granted on the grounds that there is no triable issue of material fact, the court's order must specifically refer to the evidence indicating no triable issue.] Arturo Espinoza v. Crane Co. 9 WCAB Rptr. 10,345 ___Cal.App.4th___

CIVIL LITIGATION - Attorney-client privilege–Evidence Code §952 extends the attorney-client privilege to confidential communications shared with those who are present to further the interest of the client in the consultation or those for whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted. A determination must be made as to whether the employees to whom legal advice is relayed had a need to know the disclosed information to further the purpose of the legal consultation. Zurich American Insurance Co., v. The Superior Court of Los Angeles County, Watts Industries, Inc. 9 WCAB Rptr. 10,324 . ___Cal.App.4th___

CIVIL LITITATION - Credit for third-party recovery–Labor Code §3861–Credit for applicant's recovery against a third-party tortfeasor may be applied against all species of benefits in a workers' compensation case. Labor Code §3861 states that "the appeals board is empowered to and shall allow, as a credit to the employer to be applied against his liability, either by settlement or after judgment, as has not been applied to the payment of expenses or attorney's fees." The WCJ has the authority to determine how the credit is to be applied. [In this case, the WCJ applied the credit against an outstanding medical lien.] Sacramento City Unified School District v. Workers' Compensation Appeals Board, (Dorothy Moralez) 9 WCAB Rptr. 10,329 [Writ Denied]

CIVIL LITIGATION - Employee litigation expenses and attorney fees–Labor Code §3856–When an injured employee prosecutes an action against a third-party tortfeasor, Labor Code §3856 authorizes the employee to recover his or her litigation expenses and attorney fees from the judgment before the employer may exert a lien on the judgment to recover the amount of workers' compensation benefits expended on the employee's behalf. (See Phelps v. Stostad (1997) 16 Cal.4th 23.) [In this case, the workers' compensation carrier filed a complaint against the third-party tortfeasor, settled its complaint three months before trial, and assigned its lien to the third-party tortfeasor, and the employee's case proceeded to trial and he obtained a judgment in his favor, which was less than the lien amount, but the employee was properly awarded his litigation expenses and attorney fees in accordance with Labor Code §3856.] Jose Astudillo v. Kurt Duggleby 9 WCAB Rptr. 10,312 ___Cal.App.4th___

CIVIL LITIGATION - Required vehicle exception to the going-and-coming rule-When the employer requires an employee to drive to and from its office to have his vehicle available for company business during the business day, accidents on the way to and from the office are a risk incident to the employer's business. (See Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803.) The test for determining whether the employee was required to use his personally owned vehicle during the business day turns on whether the employer derives a special benefit from the employee's use of his vehicle. See State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 803.)Kevin Holsome v. Exel, Inc. 9 WCAB Rptr.10,293 ___Cal.App.4th___

CIVIL LITIGATION - Disability Discrimination–Under the California Fair Employment and Housing Act (FEHA) the burden is on the plaintiff to show that he or she is a qualified individual under FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation). Daniel Green v. State of California 9 WCAB Rptr. 10,259 ___Cal.App.4th___

CIVIL LITIGATION - Incentive compensation plan–A profit-based supplementary incentive compensation plan, designed to reward employees beyond their normal pay for their collective contribution to store profits, did not violate wage protection policies of the Labor Code insofar as the plan included store expenses such as workers' compensation costs, cash and merchandise shortages, breakage, and third party tort claims in the profit calculation. Eddy Korkiat Prachasaisoradej v. Ralphs Grocery Company, Inc. 9 WCAB Rptr. 10,261 ___Cal.App.4th___

CIVIL LITIGATION - Liability for breach of nondelegable duty imposed by statute or regulation–The common law rule that generally protects the hirer of an independent contractor from liability to third parties injured as a result of the contractor's negligence does not preclude liability where the hirer breaches a nondelegable duty. ___Cal.App.4th___

CIVIL LITIGATION - Liability for breach of nondelegable duty–Although an injured worker who obtains workers' compensation may not sue a general contractor for a peculiar risk, such a worker may sue the general contractor for breach of duty to comply with applicable safety regulations and statutes. (See Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032.) Daniel Evard v. Southern California Edison, Heywood Outdoor Advertising, Inc. 9 WCAB Rptr. 10,224 ___Cal.App.4th___

CIVIL LITIGATION - Recovery of medical expenses–An injured plaintiff in a civil action cannot recover more than the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services might be a greater sum. (See Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, Nishihama v. City and County of San Francisco I2001) 93 Cal.App.4th 298.) ___Cal.App.4th___

CIVIL LITIGATION - Recovery of medical expenses–The intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment. Konstantin Katiuzhinsky v. Ronnie Roshone Perry 9 WCAB Rptr. 10,218 ___Cal.App.4th___

CIVIL LITIGATION - Third-party subrogation action notice requirements–Labor Code §3850 et.seq.–When an employer fails to adequately notify its employee of its subrogation lawsuit and proposed settlement involving the alleged third-party tortfeasor and fails to obtain the employee's consent to the settlement of that suit, and when the settling alleged third-party tortfeasor, prior to settlement, was or reasonably should have been aware of the possibility of the employee's claim for damages against the tortfeasor, the alleged tortfeasor cannot use the mere settlement and dismissal of the employer's subrogation action to bar the employee from maintaining her own action for damages against the alleged tortfeasor. Deborah McKinnon v. Otis Elevator Company 9 WCAB Rptr. 10,149 ___Cal.App.4th___

CIVIL LITIGATION - Federal Employers' Liability Act–46 U.S.C. §51–In a FELA lawsuit filed in state court, the recovery of expert witness fees is controlled by federal law. Federal law does not authorize an award of expert witness fees to a prevailing plaintiff in a FELA action. Robert Miller v. Union Pacific Railroad Company 9 WCAB Rptr. 10,074 __Cal.App.4th___

CIVIL LITIGATION - Liability of landowner to employee of independent contractor- Liability of landowner to employee of independent contractor–A landowner that hires an independent contractor may be liable to the contractor's employee if the following conditions are present: (1) the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, (2) the contractor did not know and could not have reasonably discovered the hazardous condition, and (3) the landowner failed to warn the contractor about the condition. [In this case the contractor's employee sued the landowners for exposure to asbestos resulting from the removal of insulation by other independent contractors and the jury instructions did not make it clear that the landowners were liable only if the hazardous condition was hidden. (See Ray Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659, 8 WCAB Rptr. 10,012.) Donna Grahn v. Exxon Mobil Corporation 8 WCAB Rptr. 10,360 ___Cal.App.4th___

CIVIL LITIGATION - Reversal on appeal of only one joint tortfeasor–If a judgment has been rendered against several defendants who have been sued as joint tortfeasors, the judgment, if found to be erroneous as to any one of the defendants, may be vacated as to that one defendant only, and be continued in full force and effect as to the remaining defendants. (See Fearon v. Fodera (1915) 169 Cal. 370, see also Bishop v. Superior Court (1922) 59 Cal.App. 46.) Donna Grahn v. Dillingham Construction, Inc. 8 WCAB Rptr. 10,361 ___Cal.App.4th___

CIVIL LITIGATION - Civil action against uninsured employer–Labor Code §3706–An employee may bring a civil action against an employer who is uninsured for workers' compensation. The cause of action created by Labor Code §3706 is a statutory cause of action for personal injuries subject to the three-year statute of limitations.

CIVIL LITIGATION - Tolling of statute of limitations–The statute of limitations is tolled while the injured employee pursues a workers' compensation claim against the uninsured employer. (See Elkins v. Derby (1974) 12 Cal.3d 410.) Elias Valdez v. Douglas Himmelfarb 8 WCAB Rptr. 10,354 ___Cal.App.4th___

CIVIL LITIGATION-A county employee is not considered "dismissed" as used in Government Code §31725, when the county (1) advises the employee it currently has no available position to accommodate her work restrictions imposed following an industrial injury, (2) places the employee on unpaid industrial-injury leave, but (3) offers the employee vocational rehabilitation to train the employee for another position. Consta Kelly v. County of Los Angeles 8 WCAB Rptr. 10,235 ___Cal.App.4th___

CIVIL LITIGATION-Motions in limine–The motion in limine is not expressly authorized by statute, but is within the trial court's inherent power. The scope of such motion is any kind of evidence that could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial. The purpose of the motion in limine is to avoid the unfairness caused by the presentation of prejudicial or objectionable evidence to the jury. (See generally Peat Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272.) [In this case, the trial judge in denying the motion in limine (preventing of evidence of medical expenses that exceeded the amount paid on plaintiff's behalf to medical providers) was proper.] John Robert Greer v. Hossam Ali Buzgheia 8 WCAB Rptr. 10,237 ___Cal.App.4th___

CIVIL LITIGATION-Disability discrimination–A WCJ's finding that an injured worker had a permanent total disability under California workers' compensation law does not judicially estop plaintiff from pursuing a FEHA claim for disability discrimination. (See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935.)

CIVIL LITIGATION-Disability discrimination–In a disability discrimination case, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving that he or she (1) suffered from a disability or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations; and (3) was subjected to an adverse employment action because of the disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.) If the plaintiff meets this burden, the employer must offer a legitimate, nondiscriminatory reason for the adverse employment action. Legitimate reasons in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. (Guz v. Bechtel National, Inc., (2000) 24 Cal.4th 334, 2 WCAB Rptr. 10,344.) Thereafter, the plaintiff bears the burden of proving the employer's proffered reason was pretextual. (Knight v. Hayward Unified School District (2005) 132 Cal.App.4th 121, 129.) Rory Cuiellette v. City of Los Angeles 8 WCAB Rptr. 10,220 ___Cal.App.4th___

CIVIL LITIGATION-Employee right to sue coemployee–Under Labor Code §3601, workers' compensation is the exclusive remedy only if the coemployee caused the injury while acting within the scope of his or her employment. The conduct is within the scope of employment only if the coemployee is actuated to some extent by an intent to serve the employer. (See Saala v. McFarland (1965) 63 Cal.2d 124.) Elizabeth Brook v. Pierre Adrian Smithdorf 8 WCAB Rptr. 10,223 ___Cal.App.4th___

CIVIL LITIGATION-An intentional tortfeasor is not entitled to apportionment of noneconomic damages under Proposition 51. Thomas v. Duggins Construction Company 8 WCAB Rptr. 10,204 ___Cal.App.4th___

CIVIL LITIGATION-¬A county employee is not considered dismissed for disability within the meaning of Government Code §31725 when told by the employer to go out on sick leave until his or her medical condition abates sufficiently to enable return to work. John Stephens v. County of Tulare 8 WCAB Rptr. 10,187 ___Cal.App.4th___ CIVIL LITIGATION-Union duty of fair representation in grievance proceedings–The duty of fair representation by a union of a union member in a grievance proceeding is given wide latitude and a union's decisions in representing members will not be disturbed absent a showing of arbitrary exercise of the union's power. (See Hussey v. Operating Engineers Local Union No. 3 (1995) 35 Cal.App.4th 1213.) L.C. Mornes v. Los Angeles County Metropolitan Transit Authority 8 WCAB Rptr. 10,155 [writ granted]

CIVIL LITIGATION-Fair Employment and Housing Act disability discrimination–Government Code §12940 et.seq.–An employer may be liable for failing to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee. Charles Gelfo v. Lockheed Martin Corporation 8 WCAB Rptr. 10,175 ___Cal.App.4th___

CIVIL LITIGATION- Complaint alleging improper claims handling resulting in increased workers' compensation insurance premiums–A complaint alleging that a workers' compensation insurance carrier performed an incompetent investigation into the responsibility for an industrial injury, and the carrier's unreasonable settlement of a third-party claim for a fraction of the value of the employee's claim and as a result of almost no set-off from the responsible third party the employer's workers' compensation premiums increased, did not state a cause of action for breach of the insurance contract or a cause of action for the tortuous breach of the covenant of good faith and fair dealing. Tilbury Constructors, Inc. v. State Compensation Insurance Fund 8 WCAB Rptr. 10,079 ___Cal.App.4th___

CIVIL LITIGATION- Setting aside settlement made by attorney without knowledge or consent of the client–Code of Civil Procedure §473(b)–The dismissal of a cause of action by an attorney acting without any authority from his client is an act beyond the scope of his authority, which, on proper proof, may be vacated at any time. (See Whittier Union High School District v. Superior Court (1977) 66 Cal.App.3d 504.) (In this case, the Court of Appeal specifically concluded that the six-month deadline for setting aside an order specified in Code of Civil Procedure §473(b) did not apply.) Maria Bermudez v. Franklin Manufacturing Company 8 WCAB Rptr. 10,095 ___Cal.App.4th___

CIVIL LITIGATION- Doctrine of collateral estoppel–Collateral estoppel may be applied only if due process requirements are satisfied. In the context of collateral estoppel, due process requires that the party to be estopped must have had an identity or community of interest with, and adequate representation by, the losing party in the first action, and that the circumstances must have been such that the party to be estopped should reasonably have expected to be bound by the prior adjudication. (See Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149.) (In this case, representation of different plaintiffs in different cases by the same attorneys was not a factor that justifies imposition of collateral estoppel to preclude litigation of an issue by appellant as a non-party to the prior actions, at least without evidence that through his attorney he participated in or controlled the adjudication of the issue sought to be relitigated.) James Rodgers v. Sargent Controls & Aerospace 8 WCAB Rptr. 10,049 ___Cal.App.4th___

CIVIL LITIGATION- Fair Employment and Housing Act accommodation requirements–Government Code §12900 et. seq.–An employer is not required to create light-duty positions for purposes of accommodating a disabled employee unable to perform the essential functions of the position for which he or she was hired, and the employee who has created such a temporary assignment has no duty to transform that accommodation into a permanent position once it is informed the employee's disability has become permanent. Mark A. Raine v. City of Burbank8 WCAB Rptr. 10,048 ___Cal.App.4th___

CIVIL LITIGATION- Liability of landowner to employee of independent contractor–A landowner that hires an independent contractor may be liable to the contractor's employee if the following conditions are present: (1) the landowner knew, or should have known, of a latent or concealed pre-existing hazardous condition on its property, (2) the contractor did not know and could not have reasonably discovered the hazardous condition, and (3) the landowner failed to warn the contractor about the condition. (In this case, the contractor's employee sued the landowners for exposure to asbestos resulting from the removal of insulation by other independent contractors, and the jury instructions did not make it clear that the landowners were liable only if the hazardous condition were hidden.) Ray Kinsman v. Unocal Corporation 8 WCAB Rptr. 10,012 ___Cal.App.4th___

CIVIL LITIGATION– Evidence of loss of earning capacity– A plaintiff cannot introduce the permanent disability rating obtained in a workers' compensation proceeding as evidence in a civil action of loss of earning capacity in lieu of evidence usually presented in the course of a personal injury case. Juan Vasquez v. Pandol Bros. Inc. 7 WCAB Rptr. 10,329 ___Cal.App.4th___

CIVIL LITIGATION– A person working as a residential worker who has worked less than the 52 hours required by Labor Code §3352(h) and is therefore not covered by workers' compensation may pursue a civil action against the homeowner. (See Furtado v. Schriefer (1991) 228 Cal.App.3d 1608.) John Dunwoodie v. The Salvation Army 7 WCAB Rptr. 10,312 ___Cal.App.4th___

CIVIL LITIGATION– Intentional infliction of emotional distress for surveillance activities by workers' compensation carrier– Investigation of claims is an important function of workers' compensation carriers, and knowledge that surveillance might exacerbate a claimant's psychological or emotional problems does not preclude the use of reasonable surveillance techniques by compensation carriers. (See Teague v. Home Ins. Co. (1985) 168 Cal.App.3d 1148.) [If the surveillance is commonplace and the investigators do nothing that rises to the level of outrageous conduct, then a claim of intentional infliction of emotional distress cannot be stated.] Stacy Snowden v. Kemper Employer Claims Services 7 WCAB Rrtr. 10,309 ___Cal.App.4th___

CIVIL LITIGATION– Invasion of privacy by workers' compensation claims handling activities– To assert a claim for invasion of privacy, plaintiff must establish a legally protected privacy interest, a reasonable expectation of privacy under the circumstances, and conduct by the defendant that is a serious invasion of privacy. (See Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal.App. 4th 345.) [In this case, the workers' compensation carrier used an outdated medical release authorization signed by plaintiff, and the plaintiff had no reasonable expectation of privacy when she filed her workers' compensation claim, put her medical condition in issue and signed the authorization to release her medical records.] Stacy Snowden v. Kemper Employer Claims Services 7 WCAB Rrtr. 10,309 ___Cal.App.4th___

CIVIL LITIGATION– Exhaustion of administrative remedy– Exhaustion of administrative remedy, where one is available, is a condition precedent to obtaining judicial relief. It is a jurisdictional prerequisite to resort to the court system. (See Campbell v. Regents of the University of California (2005) 35 Cal.4th 311.) Ventura Police Officers' Association v. City of Ventura 7 WCAB Rptr. 10,294 ___Cal.App.4th___

CIVIL LITIGATION– Grievance procedure– To be an adequate administrative remedy, a grievance procedure must provide more than submission of a grievance form. In this case, the police officers association bargained for the grievance procedure and was estopped from asserting that it is an inadequate administrative remedy. (In this case, the grievance procedure was broad and governed disputes about the Memorandum of Understanding and personnel rules. It provided for a formal grievance and three levels of review. At each level of review, the hearing officer must render a decision in writing. If the matter is submitted to the city manager for final review, the city manager may designate a fact-finding committee.) Ventura Police Officers' Association v. City of Ventura 7 WCAB Rptr. 10,294 ___Cal.App.4th___

CIVIL LITIGATION– Nothing in the Fair Employment and Housing Act precludes an employer from firing or refusing to hire a person who uses an illegal drug. Because possession and use of marijuana are illegal under federal law, a court has no legitimate authority to require an employer to accommodate an employee's use of marijuana, even if for medicinal purposes and thus legal under California law. Gary Ross v. Ragingwire Telecommunications, Inc. 7 WCAB Rptr. 10,279 ___Cal.App.4th___

CIVIL LITIGATION– Doctrine of respondeat superior– The "scope of employment" for purposes of respondeat superior is more restrictive than "arising out of and in the course of employment" for workers' compensation. (See Saala v. McFarland (1965) 63 Cal.2d 124.) The premises line rule developed in the context of workers' compensation does not fit the policy justification for making employers vicariously liable for their employees' torts. Dean Hartline v. Kaiser Foundation Hospitals 7 WCAB Rptr. 10,278 ___Cal.App.4th___

CIVIL LITIGATION– Doctrine of respondeat superior– An employer is not liable for actions of an employee under the theory of respondeat superior where the employee's acts are not an outgrowth of workplace responsibilities, conditions and events. (See Lisa v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.) Sonia Mendez v. Save Mart Supermarkets 7 WCAB Rptr. 10,254 ___Cal.App.4th___

CIVIL LITIGATION– Doctrine of respondeat superior– The plaintiff's negligent entrustment theory against the employer is unsupported as a matter of law and should not be separately pursued, where there is a binding pretrial admission of liability by the employer under respondeat superior for the employee's negligence. (See Armenta v. Churchill (1954) 42 Cal.2d 448.) Jeld-Wen, Inc. v. Superior Court of San Diego County 7 WCAB Rptr. 10,235 ___Cal.App.4th___

CIVIL LITIGATION– Medi-Cal lien in wrongful death action– A Medi-Cal lien for costs incurred in treating a decedent's final illness may not be asserted against a recovery in a wrongful death action when that recovery does not and could not include those medical expenses. [In this case, the wrongful death action was brought on behalf of the decedent's three minor children for damages done to them as survivors and therefore medical expenses for treating the final illness or injury are not recoverable.] David Jay Fitch v. Select Products Company, State Department of Health Services 7 WCAB Rptr. 10,233 ___Cal.App.4th___

CIVIL LITIGATION– Tort liability under the doctrine of respondeat superior– The concept of "scope of employment" in tort is more restrictive than the phrase "arising out of and in the course of employment" as used in workers' compensation. Respondeat superior liability does not attach simply because employment brought the employee and victim together at a certain time and place. The employee's activities must be inherent in, typical of or created by the work so that it is a foreseeable risk of the particular employment. (See Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053.) Gordon Rensing v. Nobel Farms, Inc. 7 WCAB Rptr. 10,213 ___Cal.App.4th___

CIVIL LITIGATION– Doctrine of respondeat superior– The Commercial Traveler Rule from workers' compensation law does not apply to the respondeat superior doctrine to hold a corporation vicariously liable for the torts of its employees. Kristi Sunderland v. Lockheed Martin Aeronautical Systems Support Company 7 WCAB Rptr. 10,180 ___Cal.App.4th___

CIVIL LITITATION– Petition for Writ of Mandate seeking reclassification of workers' compensation insurance rating classification– In this case, the Insurance Commissioner did not abuse his discretion in classifying the employer's business operations. Electro Rent Corp. v. John Garamendi, Workers' Compensation Rating Bureau, State Compensation Insurance Fund 7 WCAB Rptr. 10,165

CIVIL LITIGATION– Admissibility of evidence plaintiff paid medical expenses– Plaintiff should be permitted to rebut an anticipated claim of malingering by showing that he did not receive collateral payment but paid his own medical expenses, which he was not certain to collect in a civil action. [In this case, where the defense expert was allowed to speculate that plaintiff was padding his expenses in hope of monetary gain for nonexistent injuries, it was seriously damaging to plaintiff that he could not show he had lost more already by continuing treatment than he would have by discontinuing it.] James Smalley v. Orville Ray Baty, Jr. 7 WCAB Rptr. 10,147

CIVIL LITIGATION– Liability for furnishing and withdrawing safety equipment– The general contractor's furnishing and abrupt withdrawal of safety equipment could be found to constitute negligent performance of a voluntary undertaking, affirmatively contributing to injuries sustained by a subcontractor's employee. Guy Paul Browne v. Turner Construction Company 7 WCAB Rptr. 10,120

CIVIL LITIGATION– Offer to compromise–Code of Civil Procedure §998– A trial judge may award expert witness fees when a defendant makes a pretrial offer to compromise pursuant to Code of Civil Procedure §998 for a waiver of costs, the offer is then rejected by plaintiff and the matter proceeds to verdict in favor of the defendant. The determination of the good faith and reasonableness of the offer to compromise is left to the sound discretion of the trial judge. (See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132.) John Wells v. Rockwell Automation, Inc. 7 WCAB Rptr.10,070

CIVIL LITIGATION– Discovery responses– Plaintiff's inadequate discovery responses shifted the burden of production of evidence to plaintiff. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573.] [In this case, the plaintiff's responses to interrogatories seeking all facts supporting plaintiff's contention that he was exposed to asbestos-containing products for which defendant was responsible were sufficiently devoid of factual support that the responses were prima facie evidence plaintiff could not establish the causation element of his claim against defendant. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.)] William L. Smith v. Viacom, Inc. 7 WCAB Rptr. 10,056

CIVIL LITIGATION– Presumption of negligence in civil action against uninsured employer– Labor Code §3708–If an employer is uninsured for workers' compensation, an injured employee may file a civil action against the employer. In such an action, it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is on the employer, to rebut the negligence of the employer. It is not a defense that the employee was guilty of contributory negligence, or assumed the risk or that the injury was caused by the negligence of a fellow servant.Marisa Alvarez v. Harnek S. Behniwal 7 WCAB Rptr. 10,057

CIVIL LITIGATION– Privette doctrine barring tort liability under peculiar risk liability– The Privette doctrine bars peculiar risk liability in situations where an injured worker's employer is uninsured for workers' compensation and the employee receives benefits through the Uninsured Employers Fund. Douglas Bell v. Greg Agee Construction, Inc.7 WCAB Rptr. 10,035

CIVIL LITIGATION– Asbestos litigation– An asbestos manufacturer is not liable on a concert of action cause of action when the only product containing asbestos to which the plaintiff was exposed was made by a division that was sold by the manufacturer prior to the exposure and that plaintiff was not exposed to any product made by the manufacturer. To establish a manufacturer's liability for injuries caused by a product, the plaintiff must show, at least, that he was exposed to the manufacturer's product. (See Dumin v. Owens-Corning Fiberglass Corp. (1994) 28 Cal.App.4th 650.)Anthony Cadlo v. Owens-Illinois, Inc. 7 WCAB Rptr. 10,038

CIVIL LITIGATION– Attorney malpractice lawsuit– Emotional-distress damages are not recoverable when attorney malpractice leads only to economic loss. See Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689). Ray Slaton v. Boxer, Elkind & Gerson 7 WCAB Rptr. 10,019

CIVIL LITIGATION– Independent contractor vs. employee– The most significant factor in determining the existence of an employer-independent contractor relationship is the right to control the manner and means by which the work is performed. If the control may be exercised only as to the result of the work and not the means by which it is accomplished, an independent contractor relationship is established. (See Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425/) Wendy Marie Barno v. The Copley Press, Inc. 7 WCAB Rptr. 10,020

CIVIL LITIGATION– Independent contractor vs. employee– Other tests to determine whether a worker is an independent contractor or an employee, which are considered secondary in importance to the right of control, include: (a) whether or not the one performing service is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or workman supplies the instrumentalities, tools, and the place of work for the persons doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by time or by the job; (g) whether or not the work is a part of the regular business of the principal; (h) whether or not the parties believe they are creating the relationship of employer-employee. (Isenberg v. California Emp. Stab. Com. (1947) 30 Cal.2d 34.) Wendy Marie Barno v. The Copley Press, Inc. 7 WCAB Rptr. 10,020

CIVIL LITIGATION– Express indemnity against employer in employee third- party suit– Labor Code §3864 prohibits suits against employers for reimbursement, or to enforce hold-harmless provisions, even where the employee, employer or both have prosecuted actions against a third party. (See Employers Mutual Liability Ins. Co. v. Tutor-Saliba Corp. (1998) 17 Cal.4th 632.) Magloma Inc. v. Shahram Mouzoon 7 WCAB Rptr. 10,022

CIVIL LITIGATION– Retroactive application of statutory changes– Government Code §12940(j)(3)–The change in the law to impose personal liability on persons in a supervisory capacity for discrimination under the California Fair Employment and Housing Act should not be applied retroactively. Leslie Ann McClung v. Employment Development Department 6 WCAB Rptr. 10,326

CIVIL LITGATION– Attorney-client relationship– An attorney representing a client in one action has no duty to advise the client in an unrelated, separate legal action where the client is represented by a different attorney. [In this case, the attorney represented the employer in a workers' compensation proceeding and there was no attorney-client relationship in a civil action in which the employer was represented by another attorney.] Richard McGreevy v. Richard Thomas 6 WCAB Rptr. 10,329

CIVIL LITIGATION– Doctrine of respondeat superior for liability of torts committed by an employee in the course and scope of employment– Respondeat superior is not synonymous with strict liability, and the employer is not vicariously liable for every tortious act committed by its employee while working. (See Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552.) The nexus that is required for finding a tortious act committed within the course and scope of employment for purpose of imposing respondeat superior liability is that the tort be engendered by or arise from work. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.) Mitchell J. Pearce v. State Compensation Insurance Fund 6 WCAB Rptr. 10,311

CIVIL LITIGATION– Doctrine of Res Judicata– When a plaintiff has two mutually exclusive remedies for enforcement of a claim and a judgment in the first action is rendered on the merits, the plaintiff cannot proceed to judgment in the second action. (See Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967.) [In this case, the plaintiff pursued a workers' compensation proceeding involving an injury arising out of alleged conduct that constitutes sexual harassment and a civil action under the Fair Employment Housing Act. The decision in the workers' compensation proceeding was res judicata and barred proceeding in the civil action.] Carrie Ann Horn v.Monrovian Family Restaurant 6 WCAB Rptr. 10,277

CIVIL LITIGATION– Employer liability under doctrine of respondeat superior– The special-errand exception applies if the employee is traveling as part of his regular duties or at a specific order or request of the employer. The special-errand exception does not apply to activities undertaken by an employee without expectation, express or implied, or request by his employer. (See Vivion v. National Cash Register Co.(1962) 233 Cal.App.3d 598.) Shannon Boyce v. Benbow Inn 6 WCAB Rptr. 10,263

CIVIL LITIGATION– Validity of arbitration clause in an employment contract– The provision of an employment contract providing for arbitration "in the event that a dispute arises between the parties concerning the enforcement or the interpretation of any provisions of this agreement" is broad enough to cover the employee's tort claims allegedly committed after the employee was discharged, including defamation and interference with prospective economic advantage. (See Vianna v. Doctors' Management Co. (1994) 27 Cal.App.4th 1186.) Carl W. Buckhorn, M.D. v. St. Jude Heritage Medical Group 6 WCAB Rptr. 10,264

CIVIL LITIGATION– Offer to compromise– Code of Civil Procedure §998– A section 998 offer to compromise operates within the opposing party relationship–– both because it offers to settle the claims between opposing parties and because, if rejected, it potentially shifts the parties' respective obligations to pay each other's costs under "prevailing party" rules. [In this case, the language "each party to bear his/her own costs and attorneys' fees" in the section 998 compromise agreement relieved defendants of the obligation to pay any costs or fees to plaintiff as the prevailing party, but did not waive plaintiff's right, if he otherwise had any, to reimbursement for his attorney fees and litigation expenses under Labor Code §3856(b).]William B. Rivers v. Zoe Scolari 6 WCAB Rptr. 10,245

CIVIL LITIGATION– Doctrine of res judicata has two aspects: (1) claim preclusion that prevents relitigation of the same cause of action in a second lawsuit between the same parties or parties in privity with them, and (2) collateral estoppel or issue preclusion which precludes relitigation of issues argued and decided in prior proceedings. (See Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888.) [In this case, the first lawsuit was a legal malpractice action arising out of the alleged mishandling of a workers' compensation claim and the second lawsuit was a breach of contract action related to the breach of a settlement agreement in the malpractice case and res judicata did not apply to the second case.] Martin J. Fox v. Rose, Klein & Marias 6 WCAB Rptr. 10,229

CIVIL LITIGATION– The settlement of a civil action does not effect a dismissal of a workers' compensation claim because the settlement of workers' compensation benefits can be effected only when a WCJ has exercised his or her statutory duty to review and approve the terms of the settlement. Tenet/USC University Hospital v. Workers' Compensation Appeals Board (Ana Hernandez and Rosa Hurtado) 6 WCAB Rptr. 10,236

CIVIL LITIGATION– Power press exception to the exclusive remedy of workers' compensation– Labor Code §4558–This case involved the preliminary fact issue of whether or not the plaintiff was injured by a power press within the meaning of Labor Code §4558. [The physical configuration of the machine in question was not disputed, but the parties raised conflicting inferences as to whether the blades of the machine were properly characterized as a die. This conflict in the evidence raised a question of fact requiring resolution by a jury.] Keyn Hernandez Islas v. D&G Manufacturing Company, Inc. 6 WCAB Rptr. 10,216

CIVIL LITIGATION– Punitive Damages– Pursuant to United States Supreme Court's decision in State Farm v. Campbell, a punitive damage award cannot exceed a single-digit ratio to the amount of compensatory damages. (See State Farm Mutual Insurance v. Campbell (2002) 538 U.S. 408, 155 L.Ed.2d 585, 5 WCAB Rptr. 10,135.) [In this case, the defendant's fraudulent and deceptive conduct was so reprehensible that the Court of Appeal allowed the punitive damage award to slightly exceed a ratio of nine to one.] Christo Bardis v. Marvin L. Oates. 6 WCAB Rptr. 10,182

CIVIL LITIGATION– Doctrine of Res Ipsa Loquitur– Evidence Code §646(b)– The doctrine of res ipsa loquitur is defined by statute as a presumption affecting the burden of producing evidence that requires the trier of fact to assume the existence of the presumed fact unless the defendant introduces evidence to the contrary. Maria Rosas v. Pem Con, Inc. 6 WCAB Rptr. 10,168

CIVIL LITIGATION– Doctrine of Res Ipsa Loquitur– The presumption arises when the evidence satisfies three conditions: (1) the accident must be of a kind that ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Maria Rosas v. Pem Con, Inc. 6 WCAB Rptr. 10,168

CIVIL LITIGATION– Unenforceable Arbitration Agreement Relating to an Employment Dispute– Both procedural and substantive unconscionability are required to invalidate an arbitration clause. (See Armendriz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83.) Procedural unconscionability focuses largely on oppression and the manner in which the agreement was negotiated. Substantive unconscionability, on the other hand, focused on the terms of the agreement and the presence of overly harsh, or one-sided results. (See Kinney v. United Health Care Services, Inc. (1999) 70 Cal.App.4th 1322.) Tony Martinez, Jr. v. Master Protection Corporation. 6 WCAB Rptr. 10,148

CIVIL LITIGATION– Appointment of Substitute Arbitrator– Code of Civil Procedure §1281.6– If an arbitration agreement designates an exclusive arbitral forum, and arbitration in that forum is not possible, courts may not compel arbitration in an alternate forum by appointing substitute arbitrators. (See Alan v. Superior Court (2003) 111 Cal.App.4th 217.) Tony Martinez, Jr. v. Master Protection Corporation. 6 WCAB Rptr. 10,148

LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT– 33 U.S.C. §901-950– If the employee accepts compensation under the Longshore and Harbor Workers' Compensation Act, the employee has six months to commence a third-party civil action. If the employee does not commence the third-party action within the six-month period, all of the rights to recover from the third party are automatically assigned to the employer, who may, during the next 90 days, assert the employee's right to an action against the third party. If an employee sues his attorney who handled the LHWCA case for malpractice for failing to file the third-party action on behalf of the employee, the employer cannot assert the compensation lien in the legal malpractice case. Willie Booker v. Boxer & Gerson. 6 WCAB Rptr. 10,135

CIVIL LITIGATION– Malpractice action against workers' compensation applicant's attorney– Where a malpractice action is brought against an attorney holding himself out as a legal specialist and the claim against the attorney relates to his expertise, then only a person knowledgeable in the specialty can define the applicable duty of care and render an opinion on whether it was met. (See Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502.) Hortensia Watts v. Michael C. Dolan, Boxer, Elkind & Gerson. 6 WCAB Rptr. 10,134

CIVIL LITIGATION– Labor Code §6304.5– Evidence of Cal-OSHA safety standards in third-party personal injury actions– Under amended Labor Code §6304.5, evidence of Cal-OSHA standards are admissible to establish negligence per se except as against the state for violation of a mandatory duty. Ronald Michael Gradle v. Doppelmayr USA, Inc. 6 WCAB Rptr. 10,088

CIVIL LITIGATION– Employer's vicarious liability based on required vehicle exception to the going and coming rule– An employer may be vicariously liable for an employee's accident while driving to or from work, only when it is an implied or express condition of employment that the employee use his vehicle in performing his job duties. (See Largey v. Intrastate Radiotelephone, Inc. (1982) 136 Cal.App.3d 660.) Randall J. Simpkins v. FKI Industries, Inc. 6 WCAB Rptr. 10,087

CIVIL LITIGATION– Employer's vicarious liability based on the special errand exception to the going and coming rule– Picking up a paycheck does not qualify as a special errand for the benefit of the employer. Randall J. Simpkins v. FKI Industries, Inc. 6 WCAB Rptr. 10,087

CIVIL LITIGATION– Employer's vicarious liability for failure to supervise– Consuming alcohol after work in an employer's parking lot on a single occasion even with supervisors present is not within the scope of employment. (See Martinez v. Hagopian (1986) 182 Cal.App.3d 1223.) Randall J. Simpkins v. FKI Industries, Inc. 6 WCAB Rptr. 10,087

CIVIL LITIGATION– Liability for Costs– Code of Civil Procedure §1032– An intervener is liable for all reasonable and necessary costs in the same manner as the original parties. (See Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009.) Walton Scott Morris v. San Diego Gas & Electric Company. 6 WCAB Rptr. 10,055

CIVIL LITITGATION– Motion to Strike Costs– Code of Civil Procedure §1032(a)(3)– Generally, if the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. It is only when the party against whom the cost is being imposed properly objects to a particular item that the burden shifts to the prevailing party to show the cost was recoverable. (See Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761.) Walton Scott Morris v. San Diego Gas & Electric Company. 6 WCAB Rptr. 10,055

CIVIL LITIGATION– Independent Counsel Provided by Insurer– Civil Code §2860 requires that an insurer provide independent counsel to its insured in certain conflict situations and requires the arbitration of any dispute concerning attorney fees. (See San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358.) The section does not require arbitration of disputes regarding defense expenses incurred by the insured's independent counsel. Gray Cary Ware & Freidenrich v. Vigilant Insurance Company. 6 WCAB Rptr. 10,054

CIVIL LITIGATION– Statutory Offer to Compromise– Code of Civil Procedure §998– Although general contract law principles apply to statutory offers to compromise, application of such principles should not conflict with the statute to defeat its purpose, which is to encourage pretrial settlements. (See Wilson v. Wal-Mart Stores, Inc. (1999) 72 Cal. App.4th 382; Bias v. Wright (2002) 103 Cal.App.4th 811, 4 WCAB Rptr. 10,341.) [In this case, the §998 offer to compromise required a Dismissal of the case against Ford Motor Company and the execution of a Settlement Agreement and Release by plaintiff in favor of Ford that intended only to settle plaintiff's complaint against Ford.] Agop Gozukara v. Ford Motor Company. 6 WCAB Rptr. 10,053

CIVIL LITIGATION– When public policy and practical considerations preclude a homeowner from direct liability for alleged OSHA violations, the homeowner may not be indirectly liable for alleged OSHA violations based on a theory of respondeat superior. Miguel Fernandez v. Truman Lawson, Jr. 6 WCAB Rptr. 10,035

CIVIL LITIGATION– Motion to set aside judgment– Counsel's error in failing to plead specific facts entitling plaintiffs to sue based on the delayed discovery provisions of the statute of limitations did not constitute excusable neglect under Code of Civil Procedure §473. (See Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384.) [In this case, the plaintiff's attorney's delay of 5 1/2 months in moving to set aside the judgment justified the trial court's denial of relief.] Joseph Dozier v. Bridgestone/Firestone North America. 6 WCAB Rptr. 10,023

CIVIL LITIGATION– In a products liability case based on exposure to asbestos, plaintiff bears the burden of proof on the threshold issue of exposure to the defendant's product. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953; Lineweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409.) If there has been no exposure, there is no causation. (See Dumin v. Owens-Corning Fiberglass Corp. (1994) 28 Cal.App.4th 650.) Victor Trinchese v. Pirelli Power Cables and Systems USA, LLC. 6 WCAB Rptr. 10,022

CIVIL LITIGATION– To successfully oppose a motion for summary judgment, the defendant must demonstrate that the plaintiff does not possess and cannot reasonably obtain needed evidence. In a products liability case based on exposure to asbestos, it is not enough to show through factually vague discovery responses that plaintiff lacked any significant probative evidence on the critical element of causation. (See Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282.) Victor Trinchese v. Pirelli Power Cables and Systems USA, LLC. 6 WCAB Rptr. 10,022

CIVIL LITIGATION– Characterization of workers' compensation lump sum award as separate or community property– Family Code §760– That portion of a workers' compensation lump sum settlement attributable to disability or pension payments owed during the marriage or medical expenses paid with community funds is community property, but the remainder of the settlement is the injured spouse's separate property. Gilmore E. Raphael v. June S. Bloomfield. 5 WCAB Rptr. 10,351

CIVIL LITIGATION– Fair Employment and Housing Act sexual harassment action– Although an employer is strictly liable under the Fair Employment and Housing Act for sexual harassment by a supervisor, under the avoidable consequences doctrine, plaintiff's recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation. State Department of Health Services v. Superior Court of Sacramento County (Theresa V. McGinnis) 5 WCAB Rptr. 10,350

CIVIL LITIGATION– Statute of Limitations in Federal Employers' Liability Act– The statute-of-limitations defense based on the discovery rule applicable to FELA cases is a matter of federal law. Under the federal discovery rule, a cause of action accrues when the plaintiff knows or in the exercise of reasonable diligence should have discovered both the existence and the cause of injury. (See Monarch v. Southern Pacific Transportation Co. (1999) 70 Cal.App.4th 1092.) Roger Wolfe v. Union Pacific Railroad Company. 5 WCAB Rptr. 10,332

CIVIL LITIGATION– Motion to strike pursuant to anti-SLAPP statute– Code of Civil Procedure §425.16– The cause of action against a person arising from any act of that person in furtherance of the person's right of petition under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike. [In this case, a law firm representing a workers' compensation insurance carrier in a declaratory relief action relating to insurance coverage properly moved to strike a complaint for malicious prosecution of the declaratory relief action. Bruce Choder v. Berger, Kahn, Shafton, Moss, Figler, Simon and Gladstone. 5 WCAB Rtpr. 10,323

CIVIL LITIGATION– Ratification exception to workers' compensation– An employer is not liable for the acts of a coemployee's willful and unprovoked act of physical aggression on a respondeat superior theory, but may be held liable if the employer ratified the acts of the coemployee. (See Fetland v. County of Humboldt (1999) 69 Cal.App.4th 1478.) An employer who has been notified of acts of physical aggression by a coemployee and who fails to criticize, censure, terminate, suspend or otherwise sanction that employee, and thereby ratifies the conduct, is viewed as a joint participant in the coemployee's acts. (See Iverson v. Atlas Pacific (1983) 143 Cal.App.3d 219.) Matthew Weide v. J&W Redwood Lumber Co. 5 WCAB Rptr. 10,322

CIVIL LITIGATION– Premises owner liability– A premises owner has no liability to an independent contractor's employee for a dangerous condition a contractor has created on the property unless the dangerous condition was within the property owner's control and the owner exercised control in a manner that affirmatively contributed to the employee's injury. Ray Kinsman v. Unocal Corporation. 5 WCAB Rptr. 10,239

CIVIL LITIGATION– Offer to compromise– Labor Code §998– Because a husband and wife each has an equal, undivided half-interest in causes of action for fraud and breach of contract relating to their family residence, and would have had an equal, undivided half-interest in the settlement proceeds, the defendants offer to compromise submitted pursuant to Code of Civil Procedure §998 was valid despite the fact the defendants did not allocate their settlement offer between the husband and wife. William E. Vick v. Edward DaCorsi. 5 WCAB Rptr. 10,225

CIVIL LITIGATION– Power press exception to workers' compensation remedy– Labor Code §4558– An employee may sue an employer for injury proximately caused by the employer's knowing removal or, or knowing failure to install, a point of operation guard to a power press. [In this case, the point of operation guard installed by the manufacturer was dual palm buttons that kept the operator's hands out of the operation area because both hands were required to activate the press. The employer installed a footswitch that deactivated the dual palm buttons and no other point of operation guard was installed. This was found to be sufficient to establish a violation of Labor Code §4558(a)(5) for physical removal of a point of operation guard installed by the manufacturer.] David Reginald Flennory v. Dynamic Fabrication Inc. 5 WCAB Rptr. 10,224

CIVIL LITIGATION– Setoff for workers' compensation benefits– Labor Code §3600(b)– In this case, where the injured worker was employed by a temporary employment agency and its workers' compensation carrier paid the benefits, the employer by virtue of the power press exception of Labor Code §4558 is not entitled to an offset for the workers' compensation benefits paid. David Reginald Flennory v. Dynamic Fabrication Inc. 5 WCAB Rptr. 10,224

CIVIL LITIGATION– Jury instructions in a FELA case concerning ineligibility for workers' compensation benefits– As a general rule, a state court jury should not be told of the injured employee's ineligibility for California workers' compensation benefits or any other collateral source. There may be unusual circumstances that would permit such disclosure in a FELA case. Ronald G. Lund v. San Joaquin Valley Railroad. 5 WCAB Rptr. 10,223

CIVIL LITIGATION– Mental examination by a psychologist– Code of Civil Procedure §2032– During a mental examination the examining psychologist is permitted to ask questions eliciting narrative responses, counsel may not attend the mental examination and the entire mental examination interview may be recorded on audio tape. (See Edwards v. Superior Court (1976) 16 Cal.3d 905; Vinson v. Superior Court (1987) 43 Cal.3d 833.) Golfland Entertainment Centers, Inc. v. Superior Court. 5 WCAB Rptr. 10,173

CIVIL LITIGATION– Medi-Cal lien recovery in wrongful death actions– Welfare and Institutions Code §14124.71– When Medi-Cal has provided medical services to an indigent beneficiary, the California Department of Health Services may obtain reimbursement from the recovery made by the beneficiary's survivors in a wrongful death action. Rita Evans v. Select Products Company. 5 WCAB Rptr. 10,172

CIVIL LITIGATION– Procedure for amending judgment– A trial court retains jurisdiction to correct clerical errors in a judgment. A trial court may not amend a judgment to substantially modify the judgment or alter the rights of the parties under its authority to correct clerical errors. (See Craven v. Crout (1985) 163 Cal.App.3d 779.) [In this case, the trial court's modification of an original judgment concerning the computation of the proper amount of a workers' compensation offset was not the correction of a clerical error and the court did not have jurisdiction to make such a modification after the statutory period for filing a motion to vacate the judgment pursuant to Code of Civil Procedure §663a.] Kenneth Clark v. D.J. Scheffler, Inc. 5 WCAB Rptr. 10,160

LIABILITY OF THE HIRER OF AN INDEPENDENT CONTRACTOR– The fact that the independent contractor had not obtained workers' compensation insurance does not permit the injured contractor's worker from pursuing a claim against those who hired the independent contractor under the peculiar risk doctorine. (See Lopez v. C.G.M. Development (2002) 101 Cal.App.4th 430, 5 WCAB Rptr. 10,261.) Kelly Namowicz v. Linda Whittock. 5 WCAB Rptr. 10,160

LIABILITY OF THE HIRER OF AN INDEPENDENT CONTRACTOR– When an entity hires a licensed hazardous-waste disposal company to properly dispose of its hazardous waste, the entity hiring the contractor can be liable only for injuries to an employee of the contractor if it can be shown that the entity did something to affirmatively contribute to the employee's injuries. Michael Park v. Burlington Northern Santa Fe Railroad Company. 5 WCAB Rptr. 10,157

CIVIL LITIGATION– Tort liability on a "collective" or group liability theory– A manufacturer of friction brake products containing asbestos cannot be held liable on a "collective" liability theory for injuries caused by asbestos inhalation when the plaintiff has no evidence that he had been exposed to products manufactured by the defendant. [In this case, the plaintiff contended the defendant manufacturer was liable in strict liability and for negligence theories of civil conspiracy and concert of action, and the trial court refused to instruct the jury on those issues.] Bernie Chavers v. Gatke Corporation. 5 WCAB Rptr. 10,111

BANKRUPTCY AUTOMATIC STAY OF JUDICIAL OR ADMINISTRATIVE PROCEEDINGS AGAINST UNINSURED EMPLOYER– When an uninsured employer has been discharged in bankruptcy, the automatic stay of judicial or administrative proceeding against the uninsured employer expires. Thus, after a bankruptcy discharge, an injured employee may prosecute a proceeding before the Appeals Board when the action is only nominally against the uninsured employer and undertaken for the limited purpose of obtaining an award to obtain payment from the Uninsured Employers Fund. In re Raul Munoz. 5 WCAB Rptr. 10,108

CIVIL LITIGATION– Civil action against unlawfully uninsured employer– Labor Code §3706– The right of an injured employee to bring an action for damages against an unlawfully uninsured employer may be exercised independently of any proceeding before the Workers' compensation Appeals Board. The fact that the injured worker has received payment of an award made by the Workers' Compensation Appeals Board does not deprive the court of jurisdiction for such an action. (See Hall v. Burton (1962) 201 Cal.App. 2d 72.) David Taylor v. H & C Disposal Company. 5 WCAB Rptr. 10,094

CIVIL LITIGATION– A plaintiff opposing a summary judgment motion need not prove all elements of his case; he must only produce evidence sufficient to raise a triable issue as to the facts and issues presented in the moving papers. [In this case, the plaintiff's evidence was sufficient to raise a triable issue of fact on the question of whether plaintiff's exposure to defendant's asbestos-containing products was sufficient to constitute a substantial factor in contributing to plaintiff's alleged asbestos-related injuries.] (See generally Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953.) Doyle Blankenship, Jr. v. NACCO Materials Handling Group, Inc. 5 WCAB Rptr. 10,093

CIVIL LITIGATION AGAINST UNINSURED EMPLOYER– An employee seeking damages from an uninsured employer has the same burden of proof as an employee seeking workers' compensation benefits: The employee bears the burden of proving the injury was sustained in the course of employment. Ai Zhen Huang v. L.A. Haute. 5 WCAB Rptr. 10,077

CIVIL LITIGATION AGAINST UNINSURED EMPLOYER– Presumption of negligence– Labor Code §3708– In a civil action against an uninsured employer, if an injury arising from employment is shown, it is presumed to have resulted from the employer's negligence and the employer is required to rebut that presumption to avoid liability. Ai Zhen Huang v. L.A. Haute. 5 WCAB Rptr. 10,077

CIVIL LITIGATION– Employment discrimination based on physical disability– Government Code §12940(a)– In a case involving a cause of action for wrongful termination for discrimination based on a physical disability, the plaintiff seeking to establish physical disability under the Fair Employment and Housing Act (FEHA) Government Code §12940 must show: 1) a physiological disease or condition affecting a body system; and (2) the disease or condition limited (as opposed to substantially limited, as required under federal law) the plaintiff's ability to participate in major life activities. Francisco Colmenares v. Braemar Country Club, Inc. 5 WCAB Rptr. 10,076

LIABILITY OF HIRER OF INDEPENDENT CONTRACTOR– peculiar risk doctrine– The failure of the independent contractor to obtain workers' compensation coverage does not expose the property owner to civil liability. (See Privette v. Superior Court (1993) 5 Cal.4th 689.) Blas Lopez v. C.G.M. Development Inc. 4 WCAB Rptr. 10,261

LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT– 33 United States Code §901 et. seq.– Under the "last responsible employer rule," a single employer may be held liable for the totality of an injured worker's disability, even though the disability may be attributable to a series of injuries that the worker suffered while working for more than one employer. (See Cordero v. Triple A Machine Shop 580 F.2d 1331 [9th Cir. 1978) cert. denied 440 U.S. 911, 99 S.Ct. 1223, 59 L.Ed. 2d 459 (1979).) In the case of cumulative trauma, if the disability is at least partially the result of a subsequent injury aggravating, accelerating or combining with a prior injury to create the ultimate disability, the employer of the worker at the time of the most recent injury is the responsible and liable employer. (See Kelaita v. Director 799 F.2d 1308 (9th Cir. 1986).) [In this case, the last employer employed the worker for only one day but was held liable for the injury that had been aggravated over several years.] Metropolitan Stevedoring Company v. Crescent Wharf and Warehouse Company (William G. Price) 5 WCAB Rptr. 10,253

THIRD-PARTY CIVIL LITIGATION–Liability of the hirer of an independent contractor–The hirer of an independent contractor may be liable only when the hirer's conduct affirmatively contributes to the injury. See Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 4 WCAB Rptr. 10,053.) Alfredo Nava v. Centex Homes 5 WCAB Rptr. 10,268

CIVIL LITIGATION–Effect of mediated settlement agreement–A written mediated settlement agreement, which provides each party would bear its own costs and fees, constitutes a novation of a partnership agreement that generated the litigation and that included an attorney fees provision. (See Beckwith v. Sheldon (1913) 165 Cal. 319.) Norman Heller v. Narinder Pal 5 WCAB Rptr. 10,286