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BAKER, KEENER & NAHRA, LLP

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Posted by on Dec 23, 2016 in Publications |

California Supreme Court – Rest Periods Must Be Restful

California Supreme Court – Rest Periods Must Be Restful

Rest means rest In a ruling issued this week, the California Supreme Court in Jennifer August, et al. v. ABM Security Services, Inc. held in a two-part decision that state law prohibits on-duty and on-call rest periods, concluding that during required rest periods employers “must relieve their employees of all duties and relinquish any control over how employees spend their break time.” The Court specifically held that “a rest period during which an employer may require that an employee continue performing duties seems to place too much semantic emphasis on ‘period’ – and too little on ‘rest'” and that “one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.” In short, when an employee is on break, the employee must be on break – the employer cannot require him to perform certain duties while he is resting (e.g....

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Posted by on Nov 7, 2016 in Publications |

Court of Appeals Sets Standard For Loss Of Earning Capacity Claim

Court of Appeals Sets Standard For Loss Of Earning Capacity Claim

It will come as no surprise that injuries affect our lives in a wide variety of different ways, including the impact an injury can have on our ability to work. When it comes to recovering damages in a lawsuit for the impact an injury has on our ability to work, the damages generally fall into two categories: what a person would have earned – i.e. loss of earnings – and what a person could have earned in the future – i.e. loss of earning capacity. An actual truck driver gets injured… To better understand the difference between these two categories, consider two different situations. First, let’s say you are working as a truck driver but, due to a back injury, are unable to drive for a month. If you filed a lawsuit seeking damages for this injury it would likely be a loss of earnings claim, as what you’d be trying to recover (ignoring workers’ compensation claims for purposes of this example) is the wages you would have earned...

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Posted by on Sep 19, 2016 in Publications |

Living with Kimzey v. Yelp – Protecting Against Yelp Review Lawsuits

Living with Kimzey v. Yelp – Protecting Against Yelp Review Lawsuits

With the recent decision by the Ninth Circuit in Kimzey v. Yelp (I refuse to use the exclamation point) reinforcing the fact that – no matter how clever the pleading – Yelp is not liable for negative business reviews that are created, published, or disseminated on its site, reviewers themselves are the prime target for any business owner angry enough to try and file a lawsuit over a Yelp review. As a result, anyone posting to Yelp or any other online review service would be wise to tread carefully for at least the next few months, if not as a general rule of thumb. How exactly, you might be asking, could any business owner sue over a Yelp review? Typically such a lawsuit would take the form of a defamation lawsuit – essentially, that the business and its reputation have been damaged because you have made false statements about it. However, while a Yelp review could in theory be defamatory, in actuality it’s highly unlikely that any Yelp review...

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Posted by on Jul 27, 2016 in Publications |

Will The Courts Finally Answer The Trolley Problem?

Will The Courts Finally Answer The Trolley Problem?

The Trolley Problem If you’ve taken a Philosophy 101 class, you might be familiar with a thought experiment known as the Trolley Problem. As the hypothetical goes, a trolley is heading down a hill and on the tracks ahead of it five people are tied down and cannot move. If you do nothing, the trolley can’t stop in time and will kill those people. Fortunately, however, there is a switch right next to you that allows you to divert the trolley onto another track. Unfortunately, there is a single person tied on that track. Do you do nothing and allow five people to die or do you pull the switch and kill one person? Does it change the equation if the five people are convicted serial killers and the one person is a baby? What if the five people are complete strangers and the one person is your mother? The Trolley Problem…Meets The Self-Driving Car With me so far? Okay, now replace trolley with self-driving car, the one person...

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Posted by on Jun 6, 2016 in Publications |

California Supreme Court Strengthens Protections of MICRA

California Supreme Court Strengthens Protections of MICRA

In a pair of recent cases, Winn v. Pioneer Medical Group, Inc. and Flores v. Presbyterian Intercommunity Hospital, the California Supreme Court issued decisions strengthening the position of hospitals and medical professionals across the state by bringing some more clarity to the breadth and scope of MICRA. Before looking into these cases, however, let’s take a step back to better understand their impact. In 1975, California passed the Medical Injury Compensation Reform Act, commonly referred to now as “MICRA,” with the intention of lowering medical malpractice insurance premiums by decreasing the potential tort liability of medical professionals – in other words, to make it cheaper to practice medicine by making medical lawsuits cost less. One of the ways that MICRA accomplished this goal was by capping the amount of non-economic damages (e.g. a damage award for pain and suffering) recoverable in a medical malpractice case to $250,000. This meant, and still means, that a person injured by a medical professional is largely limited to recovering economic losses, such as...

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Posted by on Mar 23, 2016 in Publications |

Court of Appeals: All Websites Must Revise Their Terms of Use

Court of Appeals: All Websites Must Revise Their Terms of Use

In a case of first impression for California appellate courts, on March 17, 2016, Brett Long v. Provide Commerce, Inc. defined what sort of website design elements would be necessary or sufficient to create an enforceable browsewrap agreement in the absence of actual notice of said agreement. For some of you that sentence might be just a bunch of technical and legal jargon that doesn’t mean much, so let’s take a step back and get everyone on the same page before diving in. If you’re already on that page, feel free to skip the next couple of sections What’s a “browsewrap agreement”? Go to a website, any website (or you could, you know, just stay on this website), and take a look at the bottom of the page. I’ll use the Google search website for our example, though, probably a page everyone is familiar with. At the bottom right of the page (or at the bottom center-ish of the page if you’re on a mobile device), you’ll see the...

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