JOSEPH P. MASCOVICH - REPRESENTATIVE CASES

Employment Law:
Daniels v. Union Pacific Railroad Co., No. C046366 (Unpublished, 2006) (obtaining reversal of judgment that plaintiff had been terminated on account of disability)

Franklin v. Union Pacific Railroad Co., No. C046135 (Unpublished, 2006) (appeal involved scope of "adverse employment action" before Supreme Court's decision in Yanowitz v. L'Oreal)

Brown v. Union Pacific Railroad Co., No. 04-16433 (Unpublished, 2005) (affirming judgment that plaintiff had failed to prove racial discrimination claim)

Dupree v. Union Pacific Railroad Co., No. 99-55833 (Unpublished, 2000) (affirming judgment that plaintiff had failed to prove he was denied promotion based on race)

Losee v. Chevron Corp., No. A076971 (Unpublished, 1998) (affirming summary judgment that the plaintiff's termination was not caused by age discrimination)

Dunton v. United Association, 206 Cal. App. 3d (1988) (reversing judgment that defendants intentionally inflicted emotional distress on union members)

Tort matters:
Southern Calif. Regional Rail Authority v. Superior Court, 163 Cal. App. 4th 712 (2008) (holding that federal law preempts state law negligence claims based on use of push-pull mode of passenger train service);

Miller v. Union Pacific Railroad Co., 147 Cal. App. 4th 451 (2007) (holding that the FELA preempts a plaintiff’s right to an award of expert fees under C.C.P. § 998);

Christoff v. Union Pacific Railroad Co., 134 Cal. App. 4th 118 (2005) (affirming summary judgment in favor of railroad in action by pedestrian hit by train as he was crossing a trestle);

Abbott v. Union Pacific Railroad Co., No. C045951 (Unpublished, 2005) (affirming summary judgment for railroad based on recreational use immunity statute);

Wolfe v. Union Pacific Railroad Co., No. E032080 (Unpublished, 2003) (affirming summary judgment based on statute of limitations in FELA action);

Lund v. San Joaquin Valley Railroad Co., 31 Cal. 4th 1 (2003) (holding that FELA preempts state prejudgment interest statute and that jury generally should not be instructed that a FELA plaintiff is ineligible for workers’ compensation) (represented amicus parties);

Akins v. Sacramento M.U.D., 8 Cal.Rptr.2d 785 (Unpublished, 1992) (affirming summary judgment for utility district that operated nuclear power plant and was sued for emotional distress and property damage following release of radioactive substances into creek system);

Tanja H. v. Regents of the Univ. of Calif., 228 Cal. App. 3d 434 (1991) (affirming dismissal of action alleging that university was liable for alleged rape of student by other students that occurred in dormitory);

Blain v. Doctor’s Co., 222 Cal. App. 3d 1048 (1990) (affirming dismissal of action in which physician alleged that defense counsel had advised him to lie in deposition in medical malpractice action);

Platts v. Sacramento Northern Ry. Co., 205 Cal. App. 3d 1025 (1988) (affirming summary judgment that defendant, as former owner of railroad tunnel, had not caused loss of subjacent support for surface owner’s property);

San Francisco Bay Guardian v. Superior Court, 17 Cal. App. 4th 655 (1993) (directing entry of summary judgment for weekly newspaper on ground that allegedly defamatory fictitious letter to editor was parody protected by First Amendment);

Boaz v. Boyle & Co., 40 Cal. App. 4th 700 (1995) (affirming dismissal based on forum of non conveniens even though alternate forum had already dismissed the plaintiffs’ action on substantive grounds);

George v. Parke-Davis, 733 P.2d 507 (Wash. 1987) (analyzing elements of variant of market share liability);

Edwards v. Union Pacific Railroad Co., (Colo. Ct. App. 2004) (rejecting plaintiff’s claims that judgment should be reversed for evidentiary and instructional error);

Thompson v. Northeast Ill. Regional Commuter Railroad Corp., 854 N.E.2d 744 (Ill. App. 2006) (affirming judgment for railroad in grade crossing accident case). 

Regulatory, contract and other business disputes:
Harold E. Nutter & Sons, Inc. v. Allen E. Bender, Inc., No. C057280 (Unpublished, 2009) (reversing summary judgment entered against electrical contractor in construction contract dispute);

Wells Fargo Bank v. Superior Court, 159 Cal. App. 4th 381 (2008) (holding that Securities Litigation Uniform Standards Act barred class action involving bank’s purchase and sale of mutual fund shares in its role as trustee of private trusts);

People v. Union Pacific Railroad Co., 141 Cal. App. 4th 1228 (2006) (holding that federal law preempted state’s ability to impose penalties for railroad’s alleged violation of certain state environmental laws);

Burlington Northern & Santa Fe Ry. Co. v. California P.U.C., 112 Cal. App. 4th 881 (2003) (annulling CPUC decision enforcing state statute establishing qualifications for conductors);

Vasquez v. Southern Pacific Transp. Co., No. B152202 (Unpublished, 2004) (reversing $7.7 million breach of contract and tort judgment against railroad and directing entry of judgment for railroad);

Marin v. ANG Newspapers, No. A111597 (Unpublished, 2007) (affirming order denying class certification in unfair competition action challenging newspaper’s “Best Of” contest);

Oakland-Alameda County Coliseum v. Oakland Raiders, Ltd., 197 Cal. App. 3d 1049 (1988) (affirming summary judgment that professional football team had breached lease for use of stadium).

Insurance coverage and bad faith matters:
Aydin Corp. v. First State Ins. Co., 18 Cal. 4th 1183 (1998) (holding that inured has burden of proof re applicability of “sudden and accidental” exception to pollution exclusion in liability policy);

Filippo Industries v. Sun Ins. Co., 74 Cal. App. 4th 1429 (1999) (holding that underwriting agent could be held liable for bad faith or punitive damages);

Hughes v. Argonaut Ins. Co., 88 Cal. App. 4th 517 (2001) (holding that WCAB has exclusive jurisdiction re. claims regarding compensation carrier’s obligation to pay portion of plaintiff’s attorney fees in action against third party) (represented amicus party);

City of Oxnard v. Twin City Fire Ins. Co., 37 Cal. App. 4th 1072 (1995) (holding that excess insurers were not obligated to contribute to costs of loss or defense where city had not exhausted its self-insured retention);

Zubia v. Farmers Ins. Co., 14 Cal. App. 4th 790 (1993) (holding that medical expense reimbursement provision in auto policy was conspicuous and unambiguous);

Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal. App. 4th 715 (1993) (holding that property insurer for oil company had no obligation to pay defense costs).

Miscellaneous matters:
Robinson v. United States, ___ F.3d ___ (9th Cir. 2009) (reversing dismissal of tort action against United States; in case of first impression, court holds that action was not barred by the “Indian lands” exception to the federal Quiet Title Act);

Butler-Rupp v. Lourdeaux, 154 Cal. App. 4th 918 (2007) (holding that prevailing party entitled to recover attorney fees incurred in prior appeal even though appellate court had directed that each side to bear its own costs);

Southern Pacific Transportation Co. v. Mendez Trucking, Inc., 66 Cal. App. 4th 691 (1998) (holding that plaintiff’s request for trial de novo following judicial arbitration applied to defendant’s cross-complaint against co-defendant);

Farmers Ins. Exch. v. Superior Court, 10 Cal. App. 4th 1509 (1992) (holding that trial court had erroneously denied peremptory challenge to coordination judge on timeliness grounds).

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