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September 2014 Archives

Jet Blue Right Engine Blows up During Flight out of Long Beach in Airbus 320

On Thursday, September 18, 2014 Jet Blue flight 1416 left from Long Beach airport for Austin Texas.  The flight was in the air less than 15 minutes after taking off at 9:17 a.m. when the right engine of the Airbus 320 exploded.   Social media captured the smoked filled cabin and panic below:

Governor signs "Yelp" bill. California law now precludes non disparagement clauses in consumer contracts

Governor Brown signed a bill known colloquially as the "Yelp! bill" into law.  The final law, and hot legislative pontificating, can be read here and below and is codified as Cal. Civ. Code § 1670.8.  The bill was a reaction to a Utah lawsuit by a couple who sued after the company demanded $3,500 for an online review.  The classy people at contended the online review violated a non disparagement clause and they retained a debt collector.   The Utah couple subsequently saw their credit score damaged.   The "Yelp!" bill does not effect Yelp!.  What it does is prohibit a company from inserting boilerplate into a contract precluding negative reviews of its products or services.   Such clauses are now void and unenforceable in California as a matter of law.  If the company threatens to enforce such a provision, it maybe liable up to $2,500 for the first violation and $5,000 for each subsequent violation.  If the acts are willful, intentional or reckless (how could they not be), then the violations can be up to $10,000.   Kristensen Weisberg, LLP represented Matt Brand, who an attorney in New York threatened with a defamation lawsuit for an opinion review on Yelp! that was not defamatory.   Gawker story.  Our office responded on behalf of Mr. Brand (read our correspondence) and the New York attorney refused to file an unmeritous claim against Mr. Brand. Can Yelp! be sued for defamatory reviews by others on its website? The short answer is no.  The Federal Communications Decency Act of 1996("CDA")  Section 230 of the CDA provides that immunity to interactive computer services, which Yelp! is.  However, users of Yelp! who post false defamatory statements are still liable.  The provider of the forum, Yelp!, is not liable pursuant to the CDA. Kristensen Weisberg, LLP will be filing a libel case in California Superior Court in the near future. Here is the Yelp! bill in its Codified Glory Cal. Civ. Code § 1670.8 (a)  (1)  A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer's right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services. (2)  It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section. (b)  Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable. (c)  Any person who violates this section shall be subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for the first violation, and five thousand dollars ($5,000) for the second and for each subsequent violation, to be assessed and collected in a civil action brought by the consumer, by the Attorney General, or by the district attorney or city attorney of the county or city in which the violation occurred. When collected, the civil penalty shall be payable, as appropriate, to the consumer or to the general fund of whichever governmental entity brought the action to assess the civil penalty. (d)  In addition, for a willful, intentional, or reckless violation of this section, a consumer or public prosecutor may recover a civil penalty not to exceed ten thousand dollars ($10,000). (e)  The penalty provided by this section is not an exclusive remedy, and does not affect any other relief or remedy provided by law. This section shall not be construed to prohibit or limit a person or business that hosts online consumer reviews or comments from removing a statement that is otherwise lawful to remove.

New California Law, Three Feet for Safety Act, Protects Bicyclists from Cars

On September 16, 2014, the Three Feet for Safety Act became the law in California.  Under California Veh. Code § 21760, car drivers must provide bicyclists with three feet of space when passing.  Violators will be fined $35 if they drive too close to a bicyclist; a $220 fine will be imposed if a cyclist is injured when a driver is violating the 3-foot buffer.  However, that is not the real deterrent.   For years, insurance companies were able to limit bicyclists claims due to the requirement that drivers only provide an undefined "safe" distance when passing a bike on the road.  Now that the "safe" distance is defined as three feet, lawyers for bicyclists should seek negligence per se instructions finding that accidents caused by drivers passing bikes within three feet should be liable.   This is a significant change in California law.     In 2012, 150 bicyclists died after collisions with automobiles in California alone.  In Los Angeles County, nearly 5,000 people were killed or injured the same year after collisions with cars.   Hopefully, the Three Feet for Safety Act drops those numbers, even though the insurance companies are going to keep fighting bicyclists' claims.   If you need a bicycle lawyer in Los Angeles, call Kristensen Weisberg, LLP at (310) 507-7924 or email  David Weisberg and John Kristensen have both tried cases on behalf of bicyclists maimed by vehicles. Here is the text of the Three Feet for Safety Act:

TCPA lawsuit against Precision Auto Protection

On September 9, 2014, Kristensen Weisberg, LLP and the Law Offices of Todd M. Friedman, P.C. filed a Class Action Complaint against Precision Auto Protection in the United States District Court for the Central District of California.  The Class Action Complaint alleges that  Precision Auto Protection (which is a dba for Advanced Marketing & Processing, Inc.) caused robocalls to plaintiff and others similarly situated in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA").  The case was assigned to the Honorable Margaret M. Morrow.  The agent for service of process of the defendant is Joseph Rubino. If you've received rob calls on your cell phone from Precision Auto Protection, contact Kristensen Weisberg, LLP at or (310) 507-7924.

Lawsuit filed against New York Mets for Wrongful Termination following Pregnancy

The Ivy League-educated former head of New York Mets ticket sales is allegedly suing the club Wednesday, saying she was fired last month after insults and humiliation were hurled at her by the club owner's son, a top team executive who she claimed was upset that she had a child without being married. Leigh Castergine's Brooklyn federal court lawsuit named Sterling Mets Front Office LLC and Jeffrey Wilpon, the club's chief operating officer, as defendants. It sought unspecified damages and asked that the Mets be stopped from future discrimination. It said the club recognized and rewarded Castergine after she was hired in December 2010 as vice president of ticket sales and service to modernize the Mets ticket sales until she learned she was pregnant in August 2013. Kristensen Weisberg, LLP has successfully handled similar cases and obtained favorable settlements on behalf of women who were wrongfully terminated following their pregnancy. If you feel that you have been discriminated against, please contact us for a free consultation at or (310) 507-7924.

What happens in lawsuits against drunk drivers or hit and run drivers?

Were you struck by a drunk driver? Did someone slam into your vehicle and flee the scene?  What happens in lawsuits with drunk drivers and cases against hit and run drivers.  At Kristensen Weisberg, LLP we've been handling these cases for a years.  It's not the slam dunk people think these cases are at first.  The insurance industry is somewhat creative in defending drunk drivers cases.  That is why you need someone who has, and will continue to beat insurance companies who defend drunk drivers. If someone is drinking and driving, or hits someone and flees the scene, there is considerable California case law that those acts evidence a "conscious disregard for the safety of others." Wanton and reckless misconduct, which has been described as a defendant's conduct which constitutes a conscious disregard of the safety of others, may justify an award of exemplary damages.   Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286. The California Supreme Court in Taylor v. Sup. Ct. (1979) 24 Cal.3d 890 held that driving an automobile distracted because of intoxication warrants an award of punitive damages: "[W]e have no difficulty concluding that the [Complaint] contains sufficient allegations upon which it may reasonably be concluded that defendant consciously disregarded the safety of others. There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated.  Coulter v. Sup. Ct. (1978) 21 Cal.3d 144, 152-154.  One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal whether or not the driver had a prior history of drunk driving incidents."  Taylor, supra, 24 Cal.3d at p. 897 (emphasis added). The California Supreme Court made it clear back in 1978 that drinking and driving to the point of intoxication evidences a "conscious disregard" and can amount to punitive damages. That has not stopped the insurance industry from misrepresenting the current state of the law.  Fortunately, they are predictable. The insurance lawyers often file the same motion to strike punitive damages suggesting that the California Court of Appeal someone overturned the California Supreme Court two years later in Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82. First, the California Court of Appeal is an intermediary court that can be overturned by the California Supreme Court, not the other way around. Second, the Dawes Court was analyzing a pre-Taylor claim, and the language the insurance defense bar cherry picks is simply dicta (quotes from cases that are not authoritative rules of law). Despite citations by the insurance industry being inaccurate, numerous trial courts routinely grant these Motions to Strike, which severely limits the leverage a victim has in obtaining justice. Our office drops knowledge in response to these boilerplate motions. Last month, we obtained a well reasoned opinion denying a Motion to Strike punitive damages. A copy of the Order can be downloaded here: Ventura Superior Court opinion denying Motion to Strike Punitive Damages. If you've been in an accident involving a drunk driver, victimized by a hit and run driver or injured due to someone texting "OMG" while driving, contact us for a free consultation.  We will aggressively fight the insurance industry on your behalf, and don't put up with their bully tactics.  Contact us at (310) 507-7924 or

Boston Scientific hit with $73 Million Dollar Verdict over Mesh Implant

Another jury has slammed a transvaginal mesh manufacturer.  And then another jury dropped the hammer. On September 5, 2014, a jury in the United States District Court for the Southern District of West Virginia issued a $3.27 million verdict against Johnson & Johnson subsidiary Ethicon, Inc. ("Ethicon") in a bellwether jury trial.  The jury only deliberated for three hours and found Ethicon liable for strict liability, design defect, failure to warn and negligence.  No punitive damages were awarded.  A copy of the verdict can be downloaded here: Verdict Form against Ethicon in Huskey case. That was Friday. Boston Scientific was smug though. It had won two trials in Massachusetts. Then came the thunder. On September 9, 2014, a Dallas County, Texas jury found Boston Scientific liable for Martha Salazar's injuries related to its Obtryx sling. Once again, the jury deliberated less than a day. This jury awarded Ms. Salazar $23 million in compensatory damages after she was required to undergo four major surgeries. The Texas jury then issued a punitive damages award of $50 million. Plaintiff presented evidence in the case of an August 2000 e-mail from Alex Robbins, a Boston Scientific executive, where he told salespeople to disregard a study paid for by Boston Scientific that raised questions about the safety of the Obtryx sling. Mr. Robbins indicated in the email, " I certainly wouldn't hand this out to any physicians." Kristensen Weisberg, LLP represented scores of women and their spouses seeking justice against the transvaginal mesh manufacturers. If you have any questions, please feel free to contact us for a free consultation at (310) 507-7924 or

No on Prop 46 Robocalls Likely Violate the TCPA.

  Have you received robocalls against Prop 46 in California?  Did a pre-recorded message blather away on your cell phone?   Such calls are illegal if the caller did not have "express written consent."  It's punishable for $500 for each call and $1,500 if done knowingly or willfully under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA").  Contact Kristensen Weisberg, LLP at or (310) 507-7924 if you were robocalled by the No on Prop 46 without  "express written consent." While people often support various causes, most if not all, do not sign up to inundated with political calls.  Often times the campaigns, or the advocacy groups, simply purchase a list of cell phone numbers when they have no prior relationship with the owners of those cell phones. Someone may scratch their head and say, does that infringe on free speech.  No it does not.  Can a campaign call you five times at night even if you are on the do not call list.  Of course not.  The TCPA is a content-neutral law.   It's not aimed at specific types of robocalls, but all robocalls.  The general rule is that content-neutral laws regulating the time, place and manner of speech are not subject to strict scrutiny.  See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).  A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.  See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The Fourth, Seventh, Eighth, Ninth and Tenth Circuits long ago and more recently have all rejected First Amendment challenges to autodialer laws.  See Nat'l Fed'n of the Blind v. FTC, 420 F.3d 331, 351 (4th Cir. 2005) (Special Olympics and National Federal of the Blind hired outside entities to raise money for their non-profit charities.); Nat'l Coalition of Prayer, Inc. v. Carter, 455 F.3d 783, 792 (7th Cir. 2006); Fraternal Order of Police v. Stenehjem, 431 F.3d 591, 600 (8th Cir. 2005) (also upholding limitations on calls of professional charitable solicitors); Van Bergen, 59 F.3d at 1549-56 (Minnesota TCPA statute applied to gubernatorial candidate); Bland v. Fessler, 88 F.3d 728, 732-36 (9th Cir. 1996) (rejecting First Amendment challenges to two California statutes regulating autodialers); Moser v. FCC, 46 F.2d 970, 973-85 (9th Cir. 1995) (TCPA restriction are permissible time, place, and manner restrictions on speech); Mainstream Mktg Servs. Inc. v. FTC, 358 F.3d 1228, 1246 (10th Cir. 2004). The North Dakota and Minnesota Supreme Courts also arrived at the same conclusion.  See, 712 N.W.2d at 841; State by Humphrey v. Casino Mktg. Group, Inc. 882, 891-92 (Minn. 1992). The uniform theme in all the decisions is that private homes are not public fora, and callers have no right to impose any sort of message on residents without consent.  The Van Bergen decision also involved political speech run by campaigns, not their third party vendors seeking information.  An unsuccessful gubernatorial candidate was upset he could not auto-dial all of Minnesota with his ads.  The Eight Circuit found the regulation to be content-neutral and more importantly found the private telephone system, like cable television and privately-owned public utilities to not be public forums.  Id. at 1552-3. Kristensen Weisberg, LLP supports robust debate, but we do not support robocalls to voters without their express written consent.  

Kristensen Weisberg, LLP Defeat Motion to Stay Class Action for Illegal Robo Calls to Cell Phones

On September 4, 2014, United States District Court Judge John E. Mendez denied defendant Caribbean Cruise Lines, Inc.'s Motion to Stay a Class Action for Illegal Robo Calls to Cell Phones.  Kristensen Weisberg, LLP filed the Complaint in Lively v.  Caribbean Cruise Lines, Inc. on April 17, 2014 in the United States District Court for the Eastern District of California with Chris Wood from Dreyer Babich Buccola Wood Campora, LLP.  The allegations center on the robo calls to plaintiff and others cell phones on behalf of Caribbean Cruise Lines, Inc. that were made without express prior consent.  That is a violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA").  A handful of other cases have been filed in other jurisdictions against Caribbean Cruise Lines, Inc.  Judge Mendez found the claims to be different enough that a stay was not warranted.  The decision can be read here. In another note, the Judge ordered Caribbean Cruise Lines, Inc. to provide its discovery response the following day, September 5, 2014.

Albino Cobra on the loose in the 818 (the Valley-Part of LA)

An Albino Cobra is on the loose in the San Fernando Valley section of Los Angeles!  For the record, we are unaware of loose Albino Cobras on the Westside. Local media are reporting that an Albino Cobra bit a dog and slithered away on Wednesday, September 3, 2014.  We despise anything that harms dogs. There are serious limits on the ability to own and control a Cobra under Federal and California law.  More importantly, under California law, strict liability is imposed against owners for the harm their wild animals cause others.  This goes back years to Opelt v. Al G. Barnes Co. (1919) 41 Cal.App.776, 779.   (See also CACI 461).  If you've been bitten by a Cobra, regardless of pigmentation, get immediate medical treatment.   Whoever is housing these creatures then letting them loose, needs to be held accountable, especially without Steve Irwin available.  We know only one other attorney who handles snake cases: Chris Gansen.

Wage Theft in America, and California, is Rising

The New York Times reported on August 31, 2014, the eve of Labor Day, about the rise in enforcement actions and lawsuits for violating wage laws, especially in California.  The Supreme Court decision in Concepcion makes it easier for force employees to give up their rights to enforce their labor rights in Court. Not surprisingly, there has been an uptick in employers failing to pay their employers their just due. Kristensen Weisberg, LLP litigates on behalf of workers.  In the past two years alone, we have asserted multiple claims for sexual harassment, failure to pay wages, wrongful termination and classifications (claiming employees are salary-exempt when they are not to avoid paying overtime)of workers. Can you sue? If you believe your employer is not complying with their obligations, contact us for a free consultation.

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