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Case Law Library

Case Name: Brown v. Ralphs Grocery Company 07/12/2011
Summary: TERRI BROWN, Plaintiff and Respondent, v. RALPHS GROCERY COMPANY et al. , Defendants and Appellants. INTRODUCTION Plaintiff and respondent Terri Brown (plaintiff) brought a class action and representative action under the Private Attorney General Act of 2004 (the PAGA) against her employers, defendants and appellants Ralphs Grocery Company and The Kroger Co. (defendants), for alleged violations of the Labor Code. (See Brown v. Wells Fargo Bank, N. A. (2008) 168 Cal. App. 4th 938, 955 [85 Cal. Rptr. 3d 817]. )I concur in the majority opinion's rejection of plaintiff Terri Brown's argument that the class action waiver in her employment contract with Ralphs Grocery Company and the Kroger Co. , Inc. , was unconscionable under Gentry v. Superior Court (2007) 42 Cal. 4th 443 (Gentry). Brown and Ralphs/Kroger agreed to the streamlined procedures of arbitration of all covered employment claims without resort to classwide or representative litigation.
Note: Concepcion does not apply to representative class actions filed under the Private Attorney General Act, and that employees cannot waive their right to participate in such suits.
Citation: B222689
WCC Citation: WCC 38122011 CA
Case Name: Brown-Ravis, Inc. v. Superior Ct. of State of CA 01/01/2001
Summary: It was spared that burden when Kmeth himself, through counsel, filed an application for adjudication of claim on September 17, 1971. He did not ask for an immediate hearing, but placed an 'x' next to the question: 'set later on written request. 'They further differed on whether this threshhold question, common to both proceedings, should be decided by the Board or the superior court. In the superior court a trial on the jurisdictional question of employment had been set for October 2, 1972. 5405) and that his secretary was faster in filling out the Board's form application, than he was in dictating the superior court complaint.
Note: WCAB jurisdiction attaches at time of service when claim is served to opposing party concurrent with filing.
Citation: 38 CCC 193 (unpublished)
WCC Citation: WCC 27842001 CA
Case Name: Browning-Ferris Industries v. WCAB 02/14/2008
Summary: IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX BROWNING-FERRIS INDUSTRIES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and JOBE SALTER, Respondents. Over a period of 16 years, Jobe Salter sustained numerous industrial injuries to his shoulders, elbows, knees and back while working for petitioner, Browning-Ferris Industries (BFI). He presented two new claims for industrial injuries to his shoulders, elbows, knees and back, but did not seek to reopen the prior cases. The WCJ reasoned that Salter's back injuries occurred as the result of continuous trauma he suffered throughout his career with the company. Subtracting the monetary value of prior awards does not comport with Labor Code*fn1 section 4664 as construed by our Supreme Court in Brodie.
Note: [Unpublished] The percentage of a previous award of PD must be subtracted from a newer award of PD.
Citation: B193443
WCC Citation: WCC 33162008 CA
Case Name: Bryant v. IAC 05/15/1951
Summary: JAMES G. BRYANT, as Director of Employment, et al. , Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION, Respondent. If an individual is unemployed because of lack of work, benefits are provided under the Unemployment Insurance Act. The next session of the Legislature adopted article 10 of the Unemployment Insurance Act (3 Deering's Gen. Laws, Act 8780d; Stats. Pending such final determination the Department of Employment might, as it did here, pay the applicant unemployment disability benefits. That puts the employee back where he was prior to 1945 with the temporary deducted from the permanent disability compensation allowed him.
Note: 4661 not intended to affect construction of Unemployment Ins. Act
Citation: 37 Cal.2d 215, 16 CCC 121
WCC Citation: WCC 25421951 CA
Case Name: Bryer v. Santa Cruz Pasta Factory 09/15/1995
Summary: JANET BRYER, Plaintiff and Appellant, v. SANTA CRUZ PASTA FACTORY, Defendant and Respondent. (Superior Court of Santa Cruz County, No. 124423, Robert B. Yonts, Judge. )Defendant submitted affidavits which established that defendant had purchased the pasta machine secondhand and had never 'received information of any kind' from the manufacturer of the pasta machine. Defendant's affidavits established that there were no communications between the manufacturer of the pasta machine and defendant. The only express communications defendant received regarding the pasta machine were the representations of the individual who sold the machine to defendant.
Note: Dicussing level of necessary proof that manufacturer conveyed information to employer
Citation: 38 Cal.App.4th 1711, 60 CCC 944
WCC Citation: WCC 24231995 CA
Case Name: Buchmiller v. Hines Nurseries 07/11/2008
Summary: According to the facts alleged in the complaint, Buchmiller began employment as a shop manager for Hines in December of 1999. In support of its motion, Hines relied upon the following facts, which Buchmiller admitted were undisputed: First, that in June of 2003, after Buchmiller had returned to work with restrictions following his surgery, Hines' workers' compensation insurer commissioned a formal analysis of the requirements of Buchmiller's shop manager position. Despite these infirmities in Hines' claim that Buchmiller affirmatively "resigned" his employment, we nonetheless conclude the undisputed evidence demonstrates Hines did not terminate the employment as alleged in Buchmiller's complaint. Technically, Buchmiller did not admit the facts alleged by Hines in connection with either the physician's report or the job analysis report in his response to Hines' separate statement. Buchmiller also asserts that "[n]othing in Hines' answer suggests there was no termination," and complains that Hines failed to specifically assert that contention as an affirmative defense.
Note: [Unpublished] Buchmiller has not raised any triable issue of fact in support of the claimed discrimination. The undisputed facts demonstrate that in the period leading up to the alleged termination of his employment, Buchmiller's physician had concluded he could not perform the duties of his shop manager position, and that Hines had no other permanent alternative or modified work to offer him.
Citation: G038463
WCC Citation: WCC 33972008 CA
Case Name: Buescher v. WCAB 09/06/1968
Summary: ROSE E. BUESCHER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, STATE DEPARTMENT OF CONSERVATION et al. , Respondents. Petitioner is the surviving widow of Henry J. Buescher, who died June 15, 1965, as a result of a heart attack. 2 Dr. Eliot Sorsky and petitioner testified for the petitioner, and Dr. William L. Adams, Jr. , testified for defendants. The pertinent finding was that Henry J. Buescher '. . . sustained injury arising out of and occurring in the course of his employment proximately resulting in his death on June 15, 1965. 'But the body of the petition did not state with specificity that the petition was brought on behalf of the Retirement System.
Note: Board had jurisdiction and duty to grant reconsideration if it disagreed with findings of referee.
Citation: 265 Cal.App.2d 520, 33 CCC 537
WCC Citation: WCC 26511968 CA
Case Name: Burbank Studios v. WCAB 08/11/1982
Summary: Facts The facts pertinent to this appeal are as follows: On or about June 21, 1979, August Yount (Yount or applicant) filed an application for adjudication of claim, alleging an injury on May 11, 1979, to his right arm while employed by Burbank Studios (Burbank Studios or Employer), permissibly self-insured for workers' compensation benefits. Burbank Studios denied any injury arising out of or occurring in the course of Yount's employment. In a letter dated April 1, 1981, Burbank Studios responded in relevant part as follows: 'Petitioner The Burbank Studios herein acknowledges receipt of this Board's Order Granting Reconsideration served on March 25, 1981. In its petition for reconsideration, Burbank Studios contended that the WCJ had exceeded her jurisdiction in striking the language from the addendum. We are not suggesting that some form of conditional action could not be taken by the WCAB provided Burbank Studios had the right to accept or reject the proposal and rejection would return the parties to their previous status quo.
Note: Board may not rewrite a C&R, limited to approval/disapproval.
Citation: 134 Cal.App.3d 929, 47 CCC 832
WCC Citation: WCC 27461982 CA
Case Name: Burch v. WCAB (UPS) 04/16/1998
Summary: Steven Burch, Petitioner v. Workers' Compensation Appeals Board, United Parcel Service, Liberty Mutual Insurance Company, Respondents. The WCAB granted reconsideration and examined the issue of whether the Rehab. WCAB concluded that employers are required to comply with the Code and all relevant regulations in terminating liability for rehab. WCAB noted that UPS had been denied the opportunity to present other evidence that could establish that it had, indeed, offered modified or alternative work. Applicant then filed a Petition for Writ of Review after the WCAB issued its decision.
Note: Despite inability to produce RU-94 form proving applicant had been offered modified work, employer can produce other evidence of such offer.
Citation: 63 CCC 606
WCC Citation: WCC 27921998 CA
Case Name: Burnham v. WCAB 05/09/2008
Summary: Ultimately the WCAB determined the new disability schedule applied and found Burnham had no permanent disability. Burnham appeals, contending the WCAB lacked authority to grant the City's second petition for reconsideration and erred in interpreting the statute implementing the new disability schedule. The WCJ found the new disability schedule should apply and that Burnham failed to establish any exceptions under section 4660, subdivision (d). Burnham sought reconsideration with the WCAB on August 14, 2006. Therefore, according to Burnham, the WCAB's third order was functus officio [of no further force or authority] since the jurisdiction of the WCAB was exhausted.
Note: [Unpublished] Good cause sufficient to invoke section 5803 may consist of newly discovered evidence that was previously unavailable, a change in the law, or any factor or circumstance unknown at the time the original award or order was made that renders the previous findings and award inequitable.
Citation: C055988
WCC Citation: WCC 33542008 CA
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