Gary J. Wax

Beaudreau v. Burnham USA Equities, Inc. et al. (Aug. 23, 2022, G059971) 2022 WL 3593351 [nonpublished opinion]

Reaffirmed existing law that businesses with perpendicular parking generally have no duty to protect against curb-jumping vehicles

Plaintiff was injured when a mall patron pulling into a parking space perpendicular to the curb pressed the accelerator instead of the brake, causing the vehicle to jump a concrete wheel-stop and the curb.  The Court of Appeal affirmed summary judgment for GMSR’s client, the shopping-mall owner.  It reaffirmed its holding from nearly 30 years ago in Jefferson v. Qwik Korner Market that, absent prior similar incidents, a car jumping a curb while parking is unforeseeable, and hence, property owners owe no duty to protect against such an event.

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Carachure v. Scott (2021) 70 Cal.App.5th 16

Clarified existing law regarding a court's power to (1) grant partial nonsuit on an affirmative defense and (2) unilaterally approve a settlement agreement

The Court of Appeal opinion confirmed that (1) a trial court can, and should, grant a partial nonsuit where an opening statement unequivocally conceded facts constituting an element of an affirmative defense; and (2) a trial court can unilaterally approve a settlement agreement where the guardian ad litem refused to seek court approval of a validly accepted settlement.

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Pryor et al. v. Fitness International, LLC (Jan. 3, 2019, B287329) 2019 WL 92775 [nonpublished opinion]

Reaffirmed that an employer owes no duty to the general public to keep a drug-addled employee at work through the end of his shift

An employee of GMSR’s client, a health club, took heroin during his work-shift.  Finding him no longer fit to perform his job, the health club’s manager ordered him to leave the premises.  The intoxicated employee then drove away from the club striking and mortally injuring a bicyclist a short distance away.  The bicyclist’s widow sued the club, accusing it of being responsible for her husband’s death.  Plaintiff claimed that by ordering the employee to leave before his shift normally would have ended, the club started the chain of events that caused the fatality.

The Court of Appeal affirmed dismissal of plaintiff’s complaint on demurrer.  It held that plaintiff failed to allege either vicarious or direct negligence liability.  The employee’s drug use was a purely personal endeavor of no benefit to the employer and was not part of the normal job duties.  Respondeat superior, thus, did not apply.  Terminating the employee’s shift early did not create the sort of special benefit or errand necessary for vicarious liability.  Even though the plaintiff “plausibly allege[d] that workplace drug abuse is generally foreseeable,” that is not enough to create a duty owed to the public at large to prevent the consequences of such abuse.  Countervailing policy considerations disfavor imposing “an unworkably broad and inefficient duty” on employers to prevent an employee from causing harm to members of the general public where the employee has chosen to drive intoxicated after his work-shift is over.

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Garcia v. Holt (2015) 242 Cal.App.4th 600

Made new law regarding the absence of a landlord's duty as to unknown dangerous activities in a rental unit

The Court of Appeal held that absent knowledge of dangerous activities occurring in their rental unit during a tenancy, landlords have no duty to inspect the unit for dangerous bombmaking activities.

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Brown v. Mid-Century Insurance Co. (2013) 215 Cal.App.4th 841

Made new law regarding the interpretation of the "sudden and accidental discharge" clause of an insurance policy

Rejecting the appellant’s so-called “metaphysical moment theory,” the Court of Appeal held that a water leak from a home’s plumbing system is not “sudden” where it continues constantly and gradually over a period of time, even if the first drip began at a single moment in time. Accordingly, a slow leak – even if commencing in a microscopically-measurable instant – is not covered by a first-party homeowners’ insurance policy providing water-damage coverage only where a leak is caused by a “sudden and accidental discharge” from a plumbing system.

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Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486

Made new law regarding the application of alter ego liability

The Court of Appeal held that (1) a judgment can be amended to add alter ego judgment debtors even where that alter ego prevailed on unrelated claims in an underlying arbitration and (2) alter ego liability applies equally to trustees of a trust.

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