14. Beating MSJ in a Discrimination Case; Successfully Fending Off Arbitration By Arguing Waiver

Summary: Brian and Shant discuss a number of cases that set generally good precedent for plaintiffs. They cover cases about FEHA claims arising out of the conduct of an coworker, challenges in a premises liability case involving criminal conduct, successfully arguing a defendant waived right to arbitrate, and forum selection clauses that violate public policy.

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Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549 and Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568: 

• Genuine issue of material fact as to whether employee was constructively discharged by alleged demeaning criticisms by supervisor precluded summary judgment as to discrimination cause of action;
• Genuine issue of material fact as to whether supervisor's alleged conduct was motivated by discriminatory animus based on employee's national origin and age precluded summary judgment on employee's harassment cause of action;

Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654: 

• Owner's general knowledge of possibility of violent criminal conduct on premises was not in itself enough to create duty to provide protection from foreseeable third party crime;
• Prior occurrence of a burglary, a broken window next door to shopping center bar, and an assault for which the police requested security camera footage were insufficient to render third party criminal conduct sufficiently foreseeable, as would be required to impose duty on owner to protect musician from assault; and
• Owner's lack of precise system to track problematic occurrences on property did not breach owner's duty to exercise reasonable care to discover the occurrence or likely occurrence of criminal acts.

Newirth  v. Aegis Senior Communities, LLC (9th Cir. 2019) 931 F.3d 935

• Residents of senior living communities brought putative class action against operator of communities, alleging violations of California's Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL), and Welfare and Institutions Code. Following removal, the United States District Court for the Northern District of California denied operator's motion to compel arbitration. Operator appealed. The Court of Appeals held that operator waived its right to compel arbitration because (1) it knew of its right to arbitrate (2) it engaged in intentional acts inconsistent with that right, and (3) Plaintiff was prejudiced by having to litigate the case before Defendant filed the motion to compel. 

Gemini Technologies, Inc. v. Smith & Wesson Corp. (9th Cir. 2019) 931 F.3d 911

• Forum selection clause in unenforceable when it violates the public policy of a state in which the case is pending. 

Cole v. Hammond (2019) 37 Cal.App.5th 912

• Five year rule is jurisdictional. 
• Defendants' right to mandatory dismissal prevails over plaintiff's later asserted right to voluntarily dismiss.

Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954

• specific provision of Rental Car Agents Act, mandating that insurer file copy of policy issued to rental company with Department of Insurance, controlled over more general obligation of insurer to provide an insured with a policy which states the premium, and therefore insurer which issued coverage to rental car company was not required to make sure that policy stating premium was also provided to customers;
• rental company was not a general agent of insurer, and thus funds received by rental company as customer insurance payments could not be imputed to insurer as premium, in determining whether insurer charged and collected more than the statutorily-approved rate;
• rental company was not precluded from charging customers more for insurance than premium which rental company paid to insurer; and
• rental company's self-insured retention did not make company an insurer, as would subject company to rate approval requirements.