parallel rule in California

2004The Moschetta court went on to quote, and apply in this context, Witkin's statement of the parallel exception to the rule against changing one's "theory of trial" on appeal: "`A court may refuse to follow the doctrine [of not hearing new arguments on appeal] where, after trial, there is a change in judicially declared law which validates a theory that would have been rejected if presented under the case law as it existed at the time of trial. [Citation.]'" ( Moschetta, supra, 25 Cal.App.4th at p. 1227, fn. 12, 30 Cal.Rptr.2d 893 , italics added, bracketed material in original; see now 9 Witkin

2004The Moschetta court went on to quote, and apply in this context, Witkin's statement of the parallel exception to the rule against changing one's "theory of trial" on appeal: "`A court may refuse to follow the doctrine [of not hearing new arguments on appeal] where, after trial, there is a change in judicially declared law which validates a theory that would have been rejected if presented under the case law as it existed at the time of trial. [Citation.]'" ( Moschetta, supra, 25 Cal.App.4th at p. 1227, fn. 12, 30 Cal.Rptr.2d 893 , italics added, bracketed material in original; see now 9 Witkin

2014The device manufacturer can be found liable if it “did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.” (Anderson v. Owens-Coming Fiberglas Corp. (1991) 53 Cal.3d 987, 1002 [ 281 Cal.Rptr. 528 , 810 P.2d 549 ]; see Rest.3d Torts, Products Liability (1998) § 6, subds. (b) & (d).) We conclude Stengel III provides the correct framework for analysis, and we are not persuaded by Medtronic’s argument that Stengel III is wrongly decided.

2014The device manufacturer can be found liable if it “did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.” (Anderson v. Owens-Coming Fiberglas Corp. (1991) 53 Cal.3d 987, 1002 [ 281 Cal.Rptr. 528 , 810 P.2d 549 ]; see Rest.3d Torts, Products Liability (1998) § 6, subds. (b) & (d).) We conclude Stengel III provides the correct framework for analysis, and we are not persuaded by Medtronic’s argument that Stengel III is wrongly decided.

2025(See Bates, at p. 451.) Similarly, the Schaffner court continually, and in our view, incorrectly, characterized an approved label that omits a certain warning as requiring such omission. 5 (See, e.g., Schaffner, supra, 113 F.4th at p. 385 [EPA “prohibited” Monsanto from adding a cancer warning].) That view “disregards the provision in FIFRA that registration and approval of a label is not a defense to a claim of misbranding,” and “ignores the explication in Bates that ‘FIFRA contemplates that pesticide labels will evolve over time, as manufacturers gain more information about their products’ p

2025(See Bates, at p. 451.) Similarly, the Schaffner court continually, and in our view, incorrectly, characterized an approved label that omits a certain warning as requiring such omission. 5 (See, e.g., Schaffner, supra, 113 F.4th at p. 385 [EPA “prohibited” Monsanto from adding a cancer warning].) That view “disregards the provision in FIFRA that registration and approval of a label is not a defense to a claim of misbranding,” and “ignores the explication in Bates that ‘FIFRA contemplates that pesticide labels will evolve over time, as manufacturers gain more information about their products’ p

2022(Id. at p. 1184; see also People v. Bullard (2020) 9 Cal.5th 94 , 109–110 [modifying rule of Page in other respect].) 7 A parallel analysis applies to section 530.5(e).

2015As discussed, Wisely appeals only from the grant of summary adjudication under Government Code section 815.6 alleging violations of mandatory duties imposed by the California Constitution (her sixth cause of action), not the parallel claim alleging violation of duties purportedly imposed by the California Code of Regulations (her seventh cause of action). 10 Government Code section 815 provides, “Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any othe

2013(See Union School Dist. v. Smith, supra, 15 F.3d at p. 1525, fn. 1 [§ 48200 also determines the local educational agency responsible for providing a special education program].) According to Garcia, section 56041 constitutes a parallel rule of general applicability for disabled students between the ages of 18 and 22 years.

2007We reject Malais’s argument that the WCAB opinion has collateral estoppel effect on our case, because, as the WCAB held in rejecting the Department’s parallel claim that the trial court’s granting it summary judgment was res judicata and should entitle it to judgment in its favor on the workers’ compensation claim, “the issues in a FEHA action are not identical to the issues in a claim of discrimination under [Labor Code] section 132a,” citing City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158 [ 77 Cal.Rptr.2d 445 , 959 P.2d 752 ]. 2 As discussed ante, footnote 1, we reject Malais

2007We reject Malais’s argument that the WCAB opinion has collateral estoppel effect on our case, because, as the WCAB held in rejecting the Department’s parallel claim that the trial court’s granting it summary judgment was res judicata and should entitle it to judgment in its favor on the workers’ compensation claim, “the issues in a FEHA action are not identical to the issues in a claim of discrimination under [Labor Code] section 132a,” citing City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1158 [ 77 Cal.Rptr.2d 445 , 959 P.2d 752 ]. 2 As discussed ante, footnote 1, we reject Malais

2006Owens does not indicate a parallel rule applies to delays within the 10-day grace period and any such suggestion or interpretation of a holding in Owens , we respectfully classify as dictum. ( Owens v. Superior Court, supra, 28 Cal.3d at p. 250, fn. 12 , 168 Cal.Rptr. 466 , 617 P.2d 1098 .) Owens relied heavily on the Judicial Council's 1959 report urging the Legislature to clarify ambiguities in section 1382 and explained the Judicial Council recommended amending the section to provide for dismissal of all cases not brought to trial within the 60-day statutory period unless good cause has bee

2006Owens does not indicate a parallel rule applies to delays within the 10-day grace period and any such suggestion or interpretation of a holding in Owens , we respectfully classify as dictum. ( Owens v. Superior Court, supra, 28 Cal.3d at p. 250, fn. 12 , 168 Cal.Rptr. 466 , 617 P.2d 1098 .) Owens relied heavily on the Judicial Council's 1959 report urging the Legislature to clarify ambiguities in section 1382 and explained the Judicial Council recommended amending the section to provide for dismissal of all cases not brought to trial within the 60-day statutory period unless good cause has bee

2002In the context of the parallel doctrine of corporate practice of medicine, this court noted the “ ‘principal evils’ ” thought to spring from the doctrine are “ ‘the conflict between the professional standards and obligations of the doctors and the profit motive of the corporation employer.’ ” (Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1041, fn. 2 [ 55 Cal.Rptr.2d 901 ], quoting People v. Pacific Health Corp. (1938) 12 Cal.2d 156, 158, 160 [ 82 P.2d 429 , 119 A.L.R. 1284 ]; Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 466 [ 102 Cal.Rptr.2d 115 ] [the basic ration

2002In the context of the parallel doctrine of corporate practice of medicine, this court noted the “ ‘principal evils’ ” thought to spring from the doctrine are “ ‘the conflict between the professional standards and obligations of the doctors and the profit motive of the corporation employer.’ ” (Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1041, fn. 2 [ 55 Cal.Rptr.2d 901 ], quoting People v. Pacific Health Corp. (1938) 12 Cal.2d 156, 158, 160 [ 82 P.2d 429 , 119 A.L.R. 1284 ]; Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 466 [ 102 Cal.Rptr.2d 115 ] [the basic ration

2002In the context of the parallel doctrine of corporate practice of medicine, this court noted the “ ‘principal evils’ ” thought to spring from the doctrine are “ ‘the conflict between the professional standards and obligations of the doctors and the profit motive of the corporation employer.’ ” (Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1041, fn. 2 [ 55 Cal.Rptr.2d 901 ], quoting People v. Pacific Health Corp. (1938) 12 Cal.2d 156, 158, 160 [ 82 P.2d 429 , 119 A.L.R. 1284 ]; Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 466 [ 102 Cal.Rptr.2d 115 ] [the basic ration

2002In the context of the parallel doctrine of corporate practice of medicine, this court noted the “ ‘principal evils’ ” thought to spring from the doctrine are “ ‘the conflict between the professional standards and obligations of the doctors and the profit motive of the corporation employer.’ ” (Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1041, fn. 2 [ 55 Cal.Rptr.2d 901 ], quoting People v. Pacific Health Corp. (1938) 12 Cal.2d 156, 158, 160 [ 82 P.2d 429 , 119 A.L.R. 1284 ]; Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 466 [ 102 Cal.Rptr.2d 115 ] [the basic ration

2002In the context of the parallel doctrine of corporate practice of medicine, this court noted the “ ‘principal evils’ ” thought to spring from the doctrine are “ ‘the conflict between the professional standards and obligations of the doctors and the profit motive of the corporation employer.’ ” (Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1041, fn. 2 [ 55 Cal.Rptr.2d 901 ], quoting People v. Pacific Health Corp. (1938) 12 Cal.2d 156, 158, 160 [ 82 P.2d 429 , 119 A.L.R. 1284 ]; Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 466 [ 102 Cal.Rptr.2d 115 ] [the basic ration

2002In the context of the parallel doctrine of corporate practice of medicine, this court noted the “ ‘principal evils’ ” thought to spring from the doctrine are “ ‘the conflict between the professional standards and obligations of the doctors and the profit motive of the corporation employer.’ ” (Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1041, fn. 2 [ 55 Cal.Rptr.2d 901 ], quoting People v. Pacific Health Corp. (1938) 12 Cal.2d 156, 158, 160 [ 82 P.2d 429 , 119 A.L.R. 1284 ]; Steinsmith v. Medical Board (2000) 85 Cal.App.4th 458, 466 [ 102 Cal.Rptr.2d 115 ] [the basic ration

2001(See § 581, subd. (f)(2) & (4); Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168 [ 203 Cal.Rptr. 556 ]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) H 7:203, p. 7-66.) In Strauch v. Superior Court (1980) 107 Cal.App.3d 45, 49 [ 165 Cal.Rptr. 552 ], the court held that failure to comply with a parallel requirement for a certificate of merit formerly imposed in medical malpractice actions was “demurrable only and curable ... by the filing of the certificate." We do not agree that merely filing a belated certificate cures the defect, because the

2001(See § 581, subd. (f)(2) & (4); Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168 [ 203 Cal.Rptr. 556 ]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) H 7:203, p. 7-66.) In Strauch v. Superior Court (1980) 107 Cal.App.3d 45, 49 [ 165 Cal.Rptr. 552 ], the court held that failure to comply with a parallel requirement for a certificate of merit formerly imposed in medical malpractice actions was “demurrable only and curable ... by the filing of the certificate." We do not agree that merely filing a belated certificate cures the defect, because the

2001(See § 581, subd. (f)(2) & (4); Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168 [ 203 Cal.Rptr. 556 ]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) H 7:203, p. 7-66.) In Strauch v. Superior Court (1980) 107 Cal.App.3d 45, 49 [ 165 Cal.Rptr. 552 ], the court held that failure to comply with a parallel requirement for a certificate of merit formerly imposed in medical malpractice actions was “demurrable only and curable ... by the filing of the certificate." We do not agree that merely filing a belated certificate cures the defect, because the

2001(See § 581, subd. (f)(2) & (4); Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168 [ 203 Cal.Rptr. 556 ]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) H 7:203, p. 7-66.) In Strauch v. Superior Court (1980) 107 Cal.App.3d 45, 49 [ 165 Cal.Rptr. 552 ], the court held that failure to comply with a parallel requirement for a certificate of merit formerly imposed in medical malpractice actions was “demurrable only and curable ... by the filing of the certificate." We do not agree that merely filing a belated certificate cures the defect, because the

2001San Antonio Union Junior College Dist. v. Daniel, 146 Tex. 241 , 206 S.W.2d 995, 998 (1947) (Smith v. Panorama Country Club (Tex.App. 1976) 538 S.W.2d 268, 270 .) Moreover, as noted above, article 42.12(20), like Penal Code section 1203.4, does not expunge or erase a person’s felony conviction from the record, but only restores to the person certain civil rights lost as a result of the conviction, We believe, therefore, that under the “penalties and disabilities” clause of article 42.12(20), as under the parallel clause of California Penal Code section 1203.4, a conviction set aside upon compl

2001San Antonio Union Junior College Dist. v. Daniel, 146 Tex. 241 , 206 S.W.2d 995, 998 (1947) (Smith v. Panorama Country Club (Tex.App. 1976) 538 S.W.2d 268, 270 .) Moreover, as noted above, article 42.12(20), like Penal Code section 1203.4, does not expunge or erase a person’s felony conviction from the record, but only restores to the person certain civil rights lost as a result of the conviction, We believe, therefore, that under the “penalties and disabilities” clause of article 42.12(20), as under the parallel clause of California Penal Code section 1203.4, a conviction set aside upon compl