Developments of Interest

New Cases of Interest - August 1, 2011

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Diaz v. Carcamo (2011) 51 Cal.4th 1148.  In this case the Supreme Court reaffirmed a 1954 holding finding that when an employer admits vicarious liability for an employee’s negligent driving in the course of employment, the plaintiff is barred from pursuing a claim for negligent entrustment.  The court found that there was nothing in the court’s later adoption of comparative fault principals, or the approval of Proposition 51 that required a change in its earlier holding.  It also made no difference if the employer offered to admit vicarious liability at trial rather than admitting vicarious liability before trial.

Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866.  In this case an attorney changed law firms and the client with whom the attorney had worked signed a retainer agreement with the new law firm.  The new law firm’s attorney retention agreement contained an arbitration clause, while the prior law firm’s representation agreement did not include an arbitration clause.  The court held that the client was bound by the arbitration agreement, noting that the client had signed the agreement, and the agreement was therefore binding, notwithstanding the client’s assertion that it had not been carefully reviewed and that the client had simply assumed that it contained the same terms as the prior representation agreement with the first law firm.  The court noted that the client was a sophisticated business person, the arbitration provision was readily discernable and clear, and the length of the representation agreement was considerably longer than the one which had been signed with the prior law firm.

Wallace v. McCubbin (2011) 196 Cal.App.4th 1169.  This is a SLAPP action in which the Court of Appeal reverses the order of the trial court.  The SLAPP motion was directed to wrongful eviction and retaliatory eviction claims and the court found that the acts on which those causes of action were based was activity within the scope of the SLAPP statute.  The court observed that where a cause of action arises from both protected activity and unprotected activity, the plaintiff may satisfy its obligation of showing a probability of prevailing on the merits by showing a probability of prevailing on any part of the cause of action.

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