Civil Action with Brian & Shant

Brian, and Shant sit down with attorney Marina Pacheco of Kabateck LLP to discuss the complicated world of filing childhood sexual assault cases. Of particular importance is a deadline regarding the statute law CCP 340.1 (sec Q), which starting in January 2020 gave a three year window for people to file a childhood sexual assault case if they were ineligible to do so under previous laws and statutes. That provision is set to expire at the end of 2022. This primarily affects people over the age of 40 who were aware that their psychological injury was caused by the sexual assault for more than five years before the case was filed. After the expiration of the three year revival window, people over the age of 40 will still be able to file old cases, as long as they can demonstrate that they had not been aware of the abuse more than five years before the filing, meaning the memories were either repressed or the person was unaware that what they experienced would qualify as sexual abuse. The process to file a childhood sexual assault case for people who are over the age of 40 is a complicated process which requires proof of merit from a mental health professional plus proof of merit from an attorney. Marina breaks down the complicated provisions in a very detailed and worthwhile explanation.

Today Brian and Shant discuss why businesses and corporate America tend to support conservative Supreme Court justices... spoiler alert: they don't care about social issues. While big businesses often take more progressive stances on hot-button social issues like abortion and gay rights, businesses nevertheless fund conservative agendas so they can ensure a legislature and judiciary who are going to take more “pro-business” stances on cases, whether they involve consumer protection, workers rights, or the enforcement of arbitration. 

Brian and Shant discuss some of the historical arc of pro-business decisions including the recent West Virginia v. Environmental Protection Agency in 2022 which limits the power the EPA has to regulate carbon emissions and the AT&T Mobility LLC v. Concepcion in 2011 which expanded the scope of the Federal Arbitration Act to say that companies could in fact include class action waivers in their arbitration agreements with employees and consumers, even if it is against state law. 

Hear how a conservative court isn’t always consistent on issues of State vs Federal law, often ruling in favor of reducing states rights when it comes to regulations on business but then shifting power back to the states when it comes to social issues or individual freedoms. 

Finally, hear their thoughts on why Democrats have had a difficult time with their political messaging and how they can turn things around in hopes of eventually shifting the court to be less packed with conservative leaning justices.  

With the California Private Attorneys General Act in the news again after the Supreme Court decision on Viking River Cruises, Inc. v. Moriana, Brian and Shant dive into what the decision means for the future of PAGA and how it may be enforced now that the Federal Arbitration Act can preempt the California law in certain situations. 

They also discuss what might happen if enough signatures are collected to put PAGA on the chopping block in the 2024 election, including legislative compromises that would keep PAGA intact but attempt to reduce abuses, particularly those aimed at small businesses. 

Lastly, Brian and Shant discuss a ruling by the California Fourth District Court of Appeals in the case, Estrada v. Royalty Carpet Mills, Inc., which held that PAGA cases could not be dismissed by the court because of manageability issues, which is in direct opposition to the Second District Court’s ruling in Wesson v. Staples the Office Superstore, LLC in 2021. 

Since PAGA claims are meant to act in the stead of the California Labor & Workforce Development Agency, the court said that cases cannot be thrown out due to manageability concerns because, “the LWDA is not subject to a manageability requirement when it investigates Labor Code violations and assesses fines internally,” thus PAGA claims can not be subject to manageability requirements either.

The case will now head to the California Supreme Court and Brian and Shant give their predictions on where the court will land. 

Today Brian and Shant are joined by jury consultant Harry Plotkin. Harry has been a consultant for over 20 years and works with civil prosecutors in consumer cases. He has selected juries in 42 cases that resulted in eight-figure awards since 2013 and has consulted in over 1,000 cases nationwide in his career.

Brian, Shant and Harry talk about what to look for in prospective jurors, whether conservatives or liberals make for better jurors in civil cases and how important it is to get prospective jurors answering open ended questions to get a sense of how they feel about the law. 

They also cover juries in the age of COVID and Zoom, how anger and mistrust during COVID has been good for prosecutors trying cases against big corporations and how difficult it is to pick a jury when everyone is wearing a mask...pros and cons.

You can reach out to Harry with any questions you may have at: [email protected] or visit his website www.yournextjury.com. 

If you have any questions about jury selection or have any other interesting cases or questions you would like to please reach out to us. 

Brian Kabatek: [email protected]

Shant Karnikian: [email protected]

For more information about the firm, BK Law, visit www.kbklawyers.com

Brian Kabateck and Shant Karnikian discuss the current situation for law students with their guest, Michael Waterstone, Dean of Loyola Law School, Los Angeles.  Graduates of Loyola Law School themselves, Brian and Shant speak with the Dean on where law school and law practice is headed, the effects of the pandemic on teaching and students, and the outlook for jobs in the legal field for Loyola Law School graduates.  (hint: it's very good!)

For more information on Loyola Law School Los Angeles visit www.LLS.edu. To reach Dean Waterstone via email: [email protected].

To learn more about Kabateck LLP visit www.kbklawyers.com.

What would happen if in the middle of a huge personal injury case, where there might be a huge recovery, the Plaintiff and their spouse decide to get divorced? What if a couple’s home burns down and in the middle of the lawsuit against the tortfeasor, they decide to call it quits as a couple? 

These are the fascinating intersections of family law and personal injury cases that we sometimes encounter. Brian and guest host Stephanie Charlin talk with Ronald Brot. Ron has been a respected family law attorney for over 30 years and is the immediate past president of the Los Angeles County Bar Association. 

We discuss what happens when you sign up a divorced couple as clients or when married clients split up in the middle of the case. Is the recovery still community property? What happens to the loss of consortium claim? Do you still work the case if they can’t agree to both be represented? What does “date of separation” really mean in family law? All these questions and more are answered. 

Contact Ronald Brot at [email protected] or visit https://bgfllp.com/ 

Brian Kabatek: [email protected]

Stephanie Charlin: [email protected]

For more information about Kabateck LLP, visit www.kbklawyers.com

While the Court of Appeal issues opinions that continue to jeopardize PAGA, corporate lobbyists have drafted a proposed ballot initiative that would kill PAGA entirely.

Brian and Shant address a recent court ruling as well as proposed legislation that may significantly weaken or even eliminate the use of the Private Attorneys General Act (PAGA) in California. In September, the Second District Court of Appeal, in the case of Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, held that trial courts had the right to determine whether a PAGA case is manageable and that a defendant’s right to present an affirmative defense must be taken into account. Brian and Shant discuss the common tactic defense attorneys take to make a PAGA case as unmanageable as possible by presenting an affirmative defense to each individual employee present in a PAGA claim, which means asking the court to hear from hundreds or even thousands of employees in a case—rendering a case unmanageable. 

Next, Brian and Shant discuss a recent “request for title and summary filing” (a pre-requisite for a ballot initiative) with the State’s Attorney General of a bill that would effectively eliminate PAGA. It would not preclude workers from acting on behalf of other aggrieved workers who have faced workplace violations, but it would also preclude lawyers from representing aggrieved workers under the PAGA statute. Instead, workers would be expected to file their own individual claims without the assistance of legal representation or to wait for the state itself to take on their case. 

If you have any questions about PAGA cases or have any other interesting cases or questions you would like to please reach out to us. 

Brian Kabatek: [email protected]

Shant Karnikian: [email protected]

Brian and Shant revisit the standards for bad faith and opening up the lid on a policy. They discuss two recent cases from the California Court of Appeal: 

Pinto v. Farmers Insurance Exchange (2021) 61 Cal.App.5th 676 and 

Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833.

For more information visit www.kbklawyers.com

Brian and Shant discuss Defense Preclusion, Tolling of Legal Malpractice SOL, Cost of Proof on a Prevailing RFA, and Juror Contact.

Lucky Brands v Marcel Fashion (2nd Ct. of Appeals)

A Defense Not Previously Raised is Precluded from Future Assertion

Nguyen v Ford (6th DCA)

In a Legal Malpractice Case, Tolling Only Applies to a Specific Subject Matter in the Particular Matter at Issue

Universal Home Improvement Inc. v. Robertson (1st DCA)

Recovery of Attorney Fees When Failing to Admit an RFA

DeHoyos v Superior Court (4th DCA)

Communication with Jurors Governed by the CCP, Not by a Universal Code of Criminal Procedure

Brian and Shant discuss Insurance Cases the Duties of the Insureds, the Genuine Dispute Doctrine, Forum Selection Clause in an Insurance Contract, and Vertical versus Horizontal Exhaustion in Insurance Policies.

Mosley v. Pac Specialty

Farming Operation Exclusion Precluding Recovery for Fire Destroying the Property

501 E 51st Street v Kookmin Best Ins.

Captive Experts and the Genuine Dispute Doctrine

Lewis v. Liberty Mutual (9th Circuit)

A Change in Policy, Insurance Code 678.1(d), and Forum Non-Conveniens

Montrose Chemical v. S.C. (Cal. Sup. Ct.)

Elective Stacking—Multiple Primary Policies Used to Exhaustion Allows Access to Others Stacked Above