characterization doctrine in California

1998But when the person injured is an employee of the independent contractor, the exclusivity provisions of the workers' compensation scheme shield the negligent contractor from an action seeking equitable indemnity. ( [Lab.Code,] § 3864.)" ( Ibid. ) We also observed in Privette that although the doctrine of peculiar risk is sometimes described as "a nondelegable duty" rule, it is in effect a form of vicarious liability. ( Privette, supra, 5 Cal.4th at p. 695 , 21 Cal. Rptr.2d 72 , 854 P.2d 721 .) In a footnote, which briefly mentioned sections 413 and 416 of the Restatement Second of Torts, we sa

1998But when the person injured is an employee of the independent contractor, the exclusivity provisions of the workers' compensation scheme shield the negligent contractor from an action seeking equitable indemnity. ( [Lab.Code,] § 3864.)" ( Ibid. ) We also observed in Privette that although the doctrine of peculiar risk is sometimes described as "a nondelegable duty" rule, it is in effect a form of vicarious liability. ( Privette, supra, 5 Cal.4th at p. 695 , 21 Cal. Rptr.2d 72 , 854 P.2d 721 .) In a footnote, which briefly mentioned sections 413 and 416 of the Restatement Second of Torts, we sa

1998But when the person injured is an employee of the independent contractor, the exclusivity provisions of the workers' compensation scheme shield the negligent contractor from an action seeking equitable indemnity. ( [Lab.Code,] § 3864.)" ( Ibid. ) We also observed in Privette that although the doctrine of peculiar risk is sometimes described as "a nondelegable duty" rule, it is in effect a form of vicarious liability. ( Privette, supra, 5 Cal.4th at p. 695 , 21 Cal. Rptr.2d 72 , 854 P.2d 721 .) In a footnote, which briefly mentioned sections 413 and 416 of the Restatement Second of Torts, we sa

1998But when the person injured is an employee of the independent contractor, the exclusivity provisions of the workers' compensation scheme shield the negligent contractor from an action seeking equitable indemnity. ( [Lab.Code,] § 3864.)" ( Ibid. ) We also observed in Privette that although the doctrine of peculiar risk is sometimes described as "a nondelegable duty" rule, it is in effect a form of vicarious liability. ( Privette, supra, 5 Cal.4th at p. 695 , 21 Cal. Rptr.2d 72 , 854 P.2d 721 .) In a footnote, which briefly mentioned sections 413 and 416 of the Restatement Second of Torts, we sa

2009We made this point in Privette, supra, 5 Cal.4th at page 695 , in footnote 2: ‘The conclusion that peculiar risk is a form of vicarious liability is unaffected by the characterization of the doctrine as “direct” liability in situations when the person hiring an independent contractor “fails to provide in the contract that the contractor shall take [special] precautions.” ’ ” (Toland, supra, 18 Cal.4th at p. 265 .) The characterization of both section 413 and section 416 of the Restatement Second of Torts as vicarious liability follows because the “principal distinction in application of sectio

2005(Id. at pp. 691-692, 700.) “Moreover, to impose vicarious liability for tort damages on a person who hires an independent contractor for specialized work would penalize those individuals who hire experts to perform dangerous work rather than assigning such activity to their own inexperienced employees. [Citations.]” (Id. at p. 700.) Privette, supra, 5 Cal.4th 689 , concluded “the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” (Id. at p. 702.) A footnote in Privette said: “The

2013(Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1156 [describing "beyond a reasonable doubt" as "that feeling, that conviction, that gut feeling that says yes, this man is guilty" was not a purported definition of "moral certainty" and did not cause a misunderstanding of the reasonable doubt instruction].) As in Barnett, the trial court's instructions, together with the correct statements of the standard by both defense counsel, mitigated any misstep in the prosecutor's characterization of the standard of proof and emphasized the burden placed on the prosecution to prove every element beyond a

2013(Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1156 [describing "beyond a reasonable doubt" as "that feeling, that conviction, that gut feeling that says yes, this man is guilty" was not a purported definition of "moral certainty" and did not cause a misunderstanding of the reasonable doubt instruction].) As in Barnett, the trial court's instructions, together with the correct statements of the standard by both defense counsel, mitigated any misstep in the prosecutor's characterization of the standard of proof and emphasized the burden placed on the prosecution to prove every element beyond a

2004Adhering to the framework it had set forth in Walker , the Supreme Court revisited the "distinction between a mere misadvisement with regard to the consequences of a guilty plea and a violation of a plea agreement," as illustrated by a comparison of two United States Supreme Court decisions, Timmreck and Santobello. ( In re Moser, at p. 354, 24 Cal.Rptr.2d 723 , 862 P.2d 723 , citing United States v. Timmreck (1979) 441 U.S. 780 , 99 S.Ct. 2085 , 60 L.Ed.2d 634 , and Santobello v. New York (1971) 404 U.S. 257 , 92 S.Ct. 495 , 30 L.Ed.2d 427 .) The court stated: "The contrast between the Timmre

2004(Id. at p. 358.) Here, by contrast, the court made a complete and accurate advisement of the plea consequences, so there was no need for “evaluating the proper characterization of the error” since none “occurred in the present case.” (Id. at pp. 355-356.) Returning to the case at hand, in which the trial court made no errors in its advisements, we conclude that defendant’s argument “rests on an erroneous, overbroad reading of Walker.” (In re Moser, supra, 6 Cal.4th at p. 356.) In Walker , the court never advised defendant that he was subject to a mandatory restitution fine.

2004(In re Moser, at p. 354, citing United States v. Timmreck (1979) 441 U.S. 780 [ 60 L.Ed.2d 634 , 99 S.Ct. 2085 ], and Santobello v. New York (1971) 404 U.S. 257 [ 30 L.Ed.2d 427 , 92 S.Ct. 495 ].) The court stated: “The contrast between the Timmreck and Santobello decisions provides a useful guide in evaluating the proper characterization of the error that occurred in the present case.

2004(In re Moser, at p. 354, citing United States v. Timmreck (1979) 441 U.S. 780 [ 60 L.Ed.2d 634 , 99 S.Ct. 2085 ], and Santobello v. New York (1971) 404 U.S. 257 [ 30 L.Ed.2d 427 , 92 S.Ct. 495 ].) The court stated: “The contrast between the Timmreck and Santobello decisions provides a useful guide in evaluating the proper characterization of the error that occurred in the present case.

2022(E.g., Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227 , 254–255 [arbitration agreement containing a carve-out allowing employer to obtain injunctive relief was unconscionable; denial of employer’s motion to compel arbitration affirmed]; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 176 [agreement’s exclusion of claims for injunctive or other equitable relief covered the types of claims most likely to be pursued by employer and was unconscionable].) 8. supra, 2017 WL 2720433 at p. *3.) The court concluded, based on Seventh Circuit precedent, that arbitrability did not depend on the c

2015(See People v. Angeletakis (1992) 5 Cal.App.4th 963, 967 [ 7 Cal.Rptr.2d 377 ] (Angeletakis).) Hudec does not dispute this characterization and does not claim he is constitutionally entitled to refuse to testify. 2 Rather, he claims a *820 statutory right not to testify under section 1026.5(b)(7), which incorporates into an extension proceeding “the rights guaranteed under the federal and State Constitutions for criminal proceedings.” The parties each rely principally on a Court of Appeal decision: defendant on People v. Haynie (2004) 116 Cal.App.4th 1224 [ 11 Cal.Rptr.3d 163 ] (Haynie), which

2015(See People v. Angeletakis (1992) 5 Cal.App.4th 963, 967 [ 7 Cal.Rptr.2d 377 ] (Angeletakis).) Hudec does not dispute this characterization and does not claim he is constitutionally entitled to refuse to testify. 2 Rather, he claims a *820 statutory right not to testify under section 1026.5(b)(7), which incorporates into an extension proceeding “the rights guaranteed under the federal and State Constitutions for criminal proceedings.” The parties each rely principally on a Court of Appeal decision: defendant on People v. Haynie (2004) 116 Cal.App.4th 1224 [ 11 Cal.Rptr.3d 163 ] (Haynie), which

2014Mays states that a further objection would have been futile “given the trial judge’s interjection, ‘It’s a legal standard’ [citation] and subsequent view that the court corrected the error.’ ” (See People v. Boyette (2002) 29 Cal.4th 381, 432 [a defendant will be excused from the necessity of timely objecting and/or requesting an admonition if either would be futile].) To the contrary, the court demonstrated its willingness to correct the mischaracterization of the 8 presumption of innocence as a legal fiction and we have no reason to believe that the court would not have corrected other error

2009Where there is a special [peculiar] risk of physical harm, the ‘employer’ is liable to third persons injured as a proximate result of the independent contractor’s negligence whether or not there is an agreement requiring the independent contractor to take special precautions.” (Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal.App.3d 52, 61-62 [ 129 Cal.Rptr. 32 ], italics as added by quotation of Kelleher in Toland, supra, 18 Cal.4th at p. 266 .) “The existence of the contract [between the ‘employer’ and the independent contractor], while not affecting the rights of others, does, h

2009Where there is a special [peculiar] risk of physical harm, the ‘employer’ is liable to third persons injured as a proximate result of the independent contractor’s negligence whether or not there is an agreement requiring the independent contractor to take special precautions.” (Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal.App.3d 52, 61-62 [ 129 Cal.Rptr. 32 ], italics as added by quotation of Kelleher in Toland, supra, 18 Cal.4th at p. 266 .) “The existence of the contract [between the ‘employer’ and the independent contractor], while not affecting the rights of others, does, h

2001(See Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 847-849 [ 41 Cal.Rptr.2d 567 ] [plaintiff’s denomination of his claims as breach of contract, breach of fiduciary duty, and breach of covenant, was disregarded where the remedy under the facts alleged was an action for ordinary mandate].) A fair reading of the allegations of appellant’s pleadings indicates that he is not solely concerned with flaws in the hearing officer’s finding of reasonable cause.

2001(See Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 847-849 [ 41 Cal.Rptr.2d 567 ] [plaintiff’s denomination of his claims as breach of contract, breach of fiduciary duty, and breach of covenant, was disregarded where the remedy under the facts alleged was an action for ordinary mandate].) A fair reading of the allegations of appellant’s pleadings indicates that he is not solely concerned with flaws in the hearing officer’s finding of reasonable cause.

1994(Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710-711 [ 152 Cal.Rptr. 65 ].) 3 All future statutory references are to the Labor Code. 4 In Privette the Supreme Court said: “The conclusion that peculiar risk is a form of vicarious liability is unaffected by the characterization of the doctrine as ‘direct’ liability in situations when the person hiring an independent contractor ‘fails to provide in the contract that the contractor shall take [special] precautions.’ (Rest.2d Torts, § 413; see Aceves v. Regal Pale Brewing Co . [1979] 24 Cal.3d [502] at p. 509 [ 156 Cal.Rptr. 41 , 595 P.2d 619 ]; G

1994(Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710-711 [ 152 Cal.Rptr. 65 ].) 3 All future statutory references are to the Labor Code. 4 In Privette the Supreme Court said: “The conclusion that peculiar risk is a form of vicarious liability is unaffected by the characterization of the doctrine as ‘direct’ liability in situations when the person hiring an independent contractor ‘fails to provide in the contract that the contractor shall take [special] precautions.’ (Rest.2d Torts, § 413; see Aceves v. Regal Pale Brewing Co . [1979] 24 Cal.3d [502] at p. 509 [ 156 Cal.Rptr. 41 , 595 P.2d 619 ]; G

1992Defendant also complains about the prosecutor's repeated references to defense counsel's reaction to particular testimony. (18) "A prosecutor may vigorously argue his case, marshalling the facts and arguing inferences to be drawn therefrom. ( People v. Fosselman (1983) 33 Cal.3d 572, 580 [ 189 Cal. Rptr. 855 , 659 P.2d 1144 ].) We have held he may not express a personal belief in defendant's guilt, in part because of the danger that jurors may assume there is other evidence at his command on which he bases this conclusion. ( People v. Bain (1971) 5 Cal.3d 839, 848 [ 97 Cal. Rptr. 684 , 489 P.2

1992Defendant also complains about the prosecutor's repeated references to defense counsel's reaction to particular testimony. (18) "A prosecutor may vigorously argue his case, marshalling the facts and arguing inferences to be drawn therefrom. ( People v. Fosselman (1983) 33 Cal.3d 572, 580 [ 189 Cal. Rptr. 855 , 659 P.2d 1144 ].) We have held he may not express a personal belief in defendant's guilt, in part because of the danger that jurors may assume there is other evidence at his command on which he bases this conclusion. ( People v. Bain (1971) 5 Cal.3d 839, 848 [ 97 Cal. Rptr. 684 , 489 P.2

1992Defendant also complains about the prosecutor's repeated references to defense counsel's reaction to particular testimony. (18) "A prosecutor may vigorously argue his case, marshalling the facts and arguing inferences to be drawn therefrom. ( People v. Fosselman (1983) 33 Cal.3d 572, 580 [ 189 Cal. Rptr. 855 , 659 P.2d 1144 ].) We have held he may not express a personal belief in defendant's guilt, in part because of the danger that jurors may assume there is other evidence at his command on which he bases this conclusion. ( People v. Bain (1971) 5 Cal.3d 839, 848 [ 97 Cal. Rptr. 684 , 489 P.2

1992Defendant also complains about the prosecutor's repeated references to defense counsel's reaction to particular testimony. (18) "A prosecutor may vigorously argue his case, marshalling the facts and arguing inferences to be drawn therefrom. ( People v. Fosselman (1983) 33 Cal.3d 572, 580 [ 189 Cal. Rptr. 855 , 659 P.2d 1144 ].) We have held he may not express a personal belief in defendant's guilt, in part because of the danger that jurors may assume there is other evidence at his command on which he bases this conclusion. ( People v. Bain (1971) 5 Cal.3d 839, 848 [ 97 Cal. Rptr. 684 , 489 P.2