On April 6, 2017, the Supreme Court of California issued an opinion in McGill v. Citibank, N.A., No. S224086, 2017 Cal. LEXIS 2551 (Apr. 6, 2017) that opens up new possibilities for consumers to hold defendants that are engaged in wrongful business practices accountable even where an arbitration clause is at issue.
After opening an account with Citibank, the plaintiff’s account agreement was amended to include arbitration provisions. The plaintiff sued Citibank in part to enjoin its allegedly deceptive business practices (“public injunctive relief”). Citibank argued that the plaintiff could not sue for injunctive relief because the U.S. Supreme Court’s decisions in Concepcion and Italian Colors held that such claims are preempted under the Federal Arbitration Act (“FAA”). However, the California Supreme Court found that the arbitration agreement in McGill was invalid and unenforceable under California law because the agreement limited the plaintiff’s right to obtain public injunctive relief under the Unfair Competition Law (“UCL”), Consumers Legal Remedies Act (“CLRA”), and False Advertising Law (“FAL”) in any forum, not just within the arbitration context. It cited Civil Code section 3513, which provides in part that “a law established for a public reason cannot be contravened by a private agreement.” McGill, 2017 Cal. LEXIS 2551, at *23, 25, 30 (quoting Civ. Code § 3513). Significantly, the California Supreme Court held that “the FAA does not require enforcement of a provision in a predispute arbitration agreement that, in violation of generally applicable California contract law, waives the right to seek in any forum public injunctive relief under the UCL, the CLRA, or the false advertising law.” McGill, 2017 Cal. LEXIS 2551, at *28 (emphasis in the original).
The end result of McGill v. Citibank is that arbitration clauses may not be enforceable if they expressly or effectively prevent statutory claims for “public injunctive relief” (i.e., relief that by and large benefits the general public) in court and arbitration. Post-McGill, there is now a chance for consumers in California to bring public injunctive relief claims against businesses even where an account or customer service agreement includes an arbitration clause, depending on the terms of the arbitration clause. However, this case and the questions addressed by the California Supreme Court could find their way to the U.S. Supreme Court soon, prompting further analysis under Concepcion and Italian Colors.
If you are a consumer who has been the subject of potential unlawful, deceptive or fraudulent business practices, please contact our office.
According to CNN, a tour bus smashed into the back of a tractor-trailer on October 23, killing the driver and 12 passengers and injuring dozens more. The crash occurred at 5:17 a.m., a bit over an hour after the bus left to take its passengers back to Los Angeles from the Red Earth Casino in Palm Springs.
California Highway Patrol (CHP) Border Division Chief Jim Abele reported that the bus left no skid marks before colliding with the tractor-trailer, indicating that the driver did not apply the brakes before the crash. The only marks on the road from vehicles were those left by the truck as the bus pushed it forward.
The National Transportation Safety Board (NTSB) is currently conducting an investigation regarding what caused the crash, and is looking into the driving records of both drivers, their accident histories, and their respective levels of training.
In recent years, this crash ranks among the deadliest in California.
Bus Accident Statistics
The Federal Motor Carrier Safety Administration (FMCSA) reported 3,649 fatal crashes involving large trucks or buses in 2014 alone, with a total of 4,161 total fatalities resulting in that year. While that number is unacceptable, it has been steadily declining since 1979. That year, 6,007 crashes involving large trucks or buses occurred with 7,054 fatalities resulting.
Legal Rights of Those Injured
Drivers owe a heightened duty of care due to the inherent danger in driving motor vehicles. If a driver breaches this duty, and the breach of duty causes harm, those injured can recover from the driver. Here, the fact that there were no skid marks produced by the bus indicates that the driver may have failed to pay attention and thereby may have failed to act with the level of care required by law. If this is the case, those harmed can recover from the deceased driver’s estate.
In addition, employers can be held liable for harm caused by employees who are acting within the scope of their job duties at the time of harm. Since the driver was driving for USA Holiday, an Alhambra-based driving company, those injured can likely recover from USA Holiday should a court find that the driver was acting within the scope of his job duties when he crashed into the tractor-trailer.
If you or a loved one has been injured by a driver’s negligence, please contact our office so we may assist in your recovery.
Kershaw, Cook & Talley is a plaintiffs’ complex litigation and personal injury law firm in Sacramento, California representing individuals and businesses nationwide.
Sacramento-based law firm Kershaw, Cook & Talley recently achieved a significant victory on behalf of California retirees. On August 18, 2016, the California Supreme Court held in part that prompt pay protections “apply to persons who retire from their employment, just as they apply to those who voluntarily leave their employment for other reasons.” The class case, McLean v. State of California, et al., was brought by a retired deputy attorney general, Janis S. McLean, who alleged that the State of California violated Labor Code sections 202 and 203 by failing to pay timely final wages to State employees.
The issue was previously appealed to the Third District Court of Appeal, where the court of appeal agreed that the protections afforded under Labor Code sections 202 and 203 also protect retirees. The court of appeal also determined that the State of California was properly sued as plaintiff’s “employer.” The California Supreme Court unanimously affirmed the court of appeal’s judgment.
William A. Kershaw, of Kershaw Cook & Talley PC, argued before the Supreme Court on behalf of the plaintiff and putative class. Mr. Kershaw told Law360, “That with the state’s main defenses decided in our favor by the Supreme Court, [Ms. McLean] will return to the trial court to proceed with the claims on behalf of herself as well as a class of retired state employees.”
The case is McLean v. State of California, number S221554, in the Supreme Court of California.
Being on the road is a dangerous place for most, but the group that is arguably the most vulnerable is also often the most forgotten – pedestrians. In an average trip, pedestrians are 1.5 times more likely than occupants of passenger vehicles to be killed in a car accident. Pedestrians were also one of the few groups of road users to experience an increase in fatalities in 2012, increasing to 4,743 from 4,457 the previous year. That number increased again in 2014, to 4,884. Fourteen percent of traffic fatalities and about 3 percent of injuries in traffic crashes involve pedestrians. On average, every two hours a pedestrian is killed and every 14 minutes a pedestrian is injured in various road accidents.
According to a national survey on pedestrian attitudes and behaviors, poor quality facilities are the leading cause of pedestrian injury. Getting hit by a car was only the third leading source of injury, following tripping and falling on either an uneven sidewalk or on one’s own. Nonetheless, actions can be taken to decrease injuries and fatalities.
The Centers for Disease Control and Prevention (CDC) pedestrian safety tips include the following:
Additionally, alcohol impairment contributed to 49% of crashes that led to pedestrian deaths – both drivers and pedestrians should take care to drink responsibly.
Legal Rights and Responsibilities
Both drivers and pedestrians have a duty to use care in their respective activities. Generally, the totality of the circumstances are taken into account in determining fault when the driver of a motor vehicle strikes a pedestrian. Drivers are held to a higher standard of care due to the fact that driving involves a car – an instrumentality capable of inflicting injury or death. However, a pedestrian could also be found to be negligent in an accident where they were jaywalking, crossing against the traffic signal, walking in areas where pedestrian access is prohibited and more. Those involved in an accident, whether as a motorist or pedestrian, should contact our office for a consultation.
Common Injuries From Bicycle Accidents Include:
Usually, these injuries require emergency treatment and extensive trauma care including surgeries and diagnostic procedures such as CT scans, MRIs, and X-rays.
The National Highway Traffic Safety Administration (NHTSA) reports that 726 people lost their lives to bicycle-on-motor vehicle crashes in 2014 alone. However, this number only accounts for about two percent of the total number of people killed and injured in traffic crashes in 2014.
About 50,000 bicyclist injuries occurred in 2014. That figure has remained relatively consistent since 2008, with 52,000 injuries occurring in 2008, 51,000 in 2009, 52,000 in 2010, 48,000 in 2011, and 49,000 in 2012. While these numbers are high, research into hospital records shows that only a small amount of bicycle crashes that cause injury are ever reported by the police – this number could be as low as ten percent.
Other data from the NHTSA shows that the average age of bicycle injury victims is increasing over time, with 45 being the average age in 2014. In 2004, the average age was 39, and 32 was the average age in 1998. 88 percent of those killed in 2014 were male, with 71% of fatalities occurring in urban areas and 20 percent of them occurring between the hours of 6 and 9 pm.
19 percent of the bicyclists killed had BAC levels of 0.08 g/dl or higher, and 35 percent of the crashes involved featured either a bicyclist or driver with a BAC level of over 0.08.
Most of the bicyclist fatalities in 2014 occurred in California and Florida, with 139 occurring in Florida and 128 occurring in California.
Car-on-bicycle accidents appear to account for the majority of bicycle-related accidents. According to the “2012 National Survey on Bicyclist and Pedestrian Attitudes and Behaviors”, nearly a third of bicyclist injuries were caused by car accidents.
Legal Rights of Those Injured
If a bicycle accident results from a breach of one’s duty to act as a reasonable person would act in mitigating the risk of danger, the negligent party can be held liable for the injuries caused. If you or a loved one has suffered an injury in such an accident, contact our office immediately.
Governor Brown signed AB 2159 into law today, adding section 351.2 to the California Evidence Code. Under the bill, evidence of immigration status is inadmissible and undiscoverable in personal injury and wrongful death suits.
Up until today, the governing law in personal injury and wrongful death suits was Rodriguez v. Kline. In that case, the California Second District Court of Appeal held as follows: if a plaintiff whose citizenship is in dispute seeks compensation for lost wages in court, the court holds a preliminary hearing to determine whether or not the plaintiff is “subject to deportation” and whether or not they are taking steps to correct their deportable condition. If the plaintiff is found to be “subject to deportation”, the jury may find that the plaintiff will recover only those lost wages that he or she could have earned in his or her country of origin.
This bill ends 30 years of disparate treatment toward non-citizens in California, allowing non-citizens to recover lost wages in personal injury and wrongful death claims to the same degree as citizens. It also frees up judicial resources, allowing the court’s time to be spent answering more pressing legal questions than the immigration status of the parties in personal injury and wrongful death matters. Hundreds and hundreds of published cases cite to Rodriguez v. Kline on the question of a plaintiff’s immigration status, illustrating the magnitude of courthouse time that will be freed by ridding the judicial process of Rodriguez’s preliminary hearing requirement. Governor Brown’s bill is a welcome boon to both plaintiff’s rights and courtroom efficiency in an endeavor where both are invaluable.
If you or a loved one, citizen or otherwise, is seeking legal help for an injury or wrongful death, please contact our office so that we may assist in your recovery.
This morning, a serious collision occurred on Highway 65 near Wheatland in Placer County. According to California Highway Patrol (CHP), the three car, head-on accident occurred after a woman driving southbound on Highway 65 crossed over the double yellow lines into incoming traffic. After the motorist crossed the double-yellow center line she struck an SUV head-on, which then spun out of control and was hit by a nearby pickup truck. The woman died at the scene, while the man in the SUV was airlifted to a nearby hospital with life threatening injuries. The driver and passenger of the pickup truck were not injured. Both Directions of Highway 65 were closed as a result of the accident, reopening about two hours later.
Although it has not yet been determined what caused the driver to veer of course, California Highway Patrol has determined common causes of collisions. Alcohol, for example, was involved in about 90 fatal collisions in 2013. Placer County specifically, had 105 injuries and 4 fatalities involving alcohol and motor vehicles in 2013. Fatal collisions are also often caused by collisions with trucks. In 2013, 256 such fatalities occurred.
In California, drivers owe others on the road, including pedestrians and other vehicles, a duty to drive reasonably. The failure to drive reasonably, such as by failing to look out for obstacles or control the speed of the vehicle, may result in negligent driving. Contact a California personal injury attorney if you have recently been involved in a collision for a consultation regarding your legal rights.
A tour bus crashed into a sign pole on Highway 99 in Merced County, according to KCRA news. The sign pole split the bus down the middle, injuring all passengers except for four. The bus contained over 30 passengers, all of Mexican ancestry. Tragically, critical injury befell fifteen passengers, while twelve suffered only minor injuries. KCRA reports that four people, not five as previously reported, were killed. The driver, Mario David Vasquez, suffered major injuries. No brake marks were found at the scene of the crash, suggesting that the bus was moving at full-speed when it hit the pole. Sheriff Vern Warnke of Merced County reported to the Associated Press that many of those injured lost their limbs, and that those assisting on the scene carried away “bags of body parts” of those who survived.
Vasquez’s relatives reported that Vasquez had been mourning the death of his spouse and hadn’t been sleeping well as a result. They insist, however, that he wouldn’t have driven if he was too tired. The National Transportation Safety Board (NTSB) and California Highway Patrol (CHP) investigators arrived to investigate but state they will not determine the cause of the crash on scene. The NTSB expects the investigation to take approximately one week.
Tired Driving Statistics
According to a poll by the National Sleep Foundation (NSF), 60% of adult drivers, or about 168 million people, admitted to driving while drowsy in the preceding year. More than one-third admitted to actually falling asleep at the wheel. Four percent stated that they had been involved in an accident or near-accident as a result of drowsiness.
Estimates by the NHTSA (National Highway Traffic Safety Association) indicate conservatively that 100,000 crashes reported by the police directly result from driver fatigue. Young men are the most at-risk group for fatigue-related crashes, with males between the ages of 18 and 29 being most likely to drive while drowsy when compared to other age groups. Adults with children are another at-risk group, as are shift workers. The risk of an individual crashing, predictably, inversely correlates with the amount of sleep the individual had the night before.
Legal Rights of Those Injured
Bus drivers owe a heightened duty of care while driving due to the inherent danger of operating a large vehicle like a bus. If a driver breaches this duty (by driving while tired, for example), and this breach results in harm, the driver may be found liable for damages. Those harmed can recover a dollar amount that the court deems to be sufficient compensation for both the economic and non-economic harm caused.
Friday marked the beginning of a potential class action against vitamin manufacturer NBTY in Florida federal court, alleging deceptive labeling of some of their products. For manufacturers, it may be good for business to label products ‘made in USA’, with an American flag emblem nested proudly on the product. However, legal standards place constraints on how the product must be made and what parts it must consist of in order to bear this label.
The proposed class of consumers in Sweat v. NBTY, Inc., allege that the company deceptively labels its products as being ‘Made in [the] U.S.A.’, and that the consumers purchased the products in reliance on that representation. Instead, the products purportedly contain substantial ingredients sourced from foreign countries. Specifically, the vitamins are alleged as violating the Florida Deceptive and Unfair Trade Practices Act and the Federal Trade Commission Act’s labeling standards.
Both the Federal Government and individual states have standards that products must abide by in order to bear the label ‘Made in the U.S.A.’. The Federal Trade Commission standard is explained in 15 U.S.C.A. § 45a , requiring “all or virtually all” of the product to be made in the United States. California’s standard, outlined in the state’s business and professions code, is more detailed, and arguably more exacting. The statute generally makes it unlawful to label a product as ‘Made in America’, ‘Made in the USA’ or ‘U.S.A., if the merchandise (or part of it) has been “entirely or substantially made, manufactured, or produced outside of the United States.” The statute then provides a variety of ways in which to show that a product violates this standard, including showing that the parts of the merchandise obtained outside of the United States constitute over 5 percent of the wholesale value of the final product.
Since the NBTY class action alleged violation of Florida and federal law, plaintiffs will ultimately need to satisfy those standards. But California businesses should also be wary of these regulations.
Monday marked the latest development in a legal battle between Starbucks and its California customers. In a battle that has been waging on and off for over a decade, the coffee giant has been accused of using delay tactics to impede a final resolution and instead pick off consumers one by one instead of waging war in a class action. On Monday, Plaintiffs argued that Starbucks’ motion to dismiss their state law claims was just another effort to delay resolution of the case, which had originally been removed to federal court on their request. If the California Unruh Civil Rights Act (Cal. Civ. Code § 51) claims are dismissed, those claims will have to be filed in state court. Due to the similarity and overlap between Unruh Act and Americans with Disabilities Act violations, at least one Ninth Circuit case has held that federal court is the better venue in which to resolve both claims. The resolution of this motion may dictate the ultimate result in the case.
The lawsuit initially began in 2012 with plaintiffs suing in California state court and having their case removed to federal court pursuant to a motion in June 2012. The case generally alleges that Starbucks stores built in California before 2005 do not adequately accommodate patrons in scooters and wheelchairs as accorded by the ADA and California state law. The plaintiffs allege that since the counters are used to pass hot beverages, they discriminate against disabled customers and pose safety risks. However, as the lawsuit has proceeded, Starbucks has attempted to dog the class action by both introducing a lower-height hand-off plane and fixing counters in stores where alleged violations occurred. Class certification has not yet been accomplished as well, also complicating the lawsuit. Only time will tell how big of an effect this violation has on Starbucks stores in California and nationwide.
The attorneys at Kershaw, Cook & Talley successfully represent consumers in lawsuits against manufacturers and companies involving defective products and product recalls. Our experienced trial attorneys recover thousands of dollars on behalf of injured individuals in cases involving defective medical devices, dangerous drugs, car defects and more.
At times, attorneys require further expertise and resources, legally and financially, to resolve a legal matter. We have the team, capability and dedication to handle challenging cases. If you have a case exceeding your resources with respect to workforce or experience, consider contacting our firm. We welcome referrals from firms in Sacramento and throughout the United States.
We provide free case consultations. If you, or a loved one, suffered an injury due to another’s negligence or wrongful conduct, call our firm. We will examine your individual situation and explain your legal rights. Our attorneys have extensive experience representing injured individuals, in both jury trials and settlement negotiations.
Kershaw, Cook & Talley is a Sacramento law firm founded on the principle of helping our clients through personalized legal services. With this philosophy, Kershaw, Cook & Talley has garnered a statewide and national reputation for providing outstanding legal representation and obtaining significant compensation for our clients.
We understand personal injury cases are often emotionally and financially straining. Our team of top personal injury attorneys in Sacramento is committed to seeking justice for individuals injured as a result of another's negligence or intentional misconduct. At Kershaw, Cook & Talley, our experienced personal injury attorneys will hold the responsible parties accountable for their actions.