Category: Daily News

Plaintiff Theresa Brooke is a woman with disabilities who uses a wheelchair. Along with her husband, she frequents California hotels to test their compliance with disability access laws. On one such testing trip in August 2023, Brooke and her husband visited the Ramada by Wyndham Burbank Airport, a hotel in Burbank, California. When they arrived, however, architectural barriers allegedly deterred Brooke from entering.

Brooke sued the hotel’s owner, Defendant Tsay JBR, LLC, asserting violations of Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq., and California’s Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. (West 2025).

The California The Unruh Act similarly creates a private right of action for people with disabilities, along with other enumerated groups, who are denied “full and equal” access to California businesses. See Cal. Civ. Code § 51(b). As part of those protections, the Unruh Act provides that any violation of the ADA is also a violation of its provisions. See id. § 51(f).

Although private parties can obtain only injunctive relief under the ADA, they can recover actual and statutory damages under the Unruh Act. Id. § 52(a); see Arroyo v. Rosas, 19 F.4th 1202, 1206 (9th Cir. 2021) (explaining that the Unruh Act effectively creates a state-law “damages remedy that is not available under the ADA”).

Accordingly, Brooke sought injunctive relief under the ADA, statutory damages under the Unruh Act, and declaratory relief and attorney’s fees under both.

The district court granted in part and denied in part a motion for summary judgment brought by Brooke. The court concluded that Tsay JBR had violated the ADA because the hotel’s passenger loading zone – an area for vehicle pickup and drop-off – lacked an access aisle for disabled guests. As a remedy, the court ordered Tsay JBR to paint a blue access aisle in front of the loading zone.

Because Brooke established an ADA violation, she also necessarily established an Unruh Act violation. But not all Unruh Act violations automatically entitle a plaintiff to statutory damages. When a violation is construction-related, the Unruh Act only permits statutory damages if the plaintiff personally encountered the violation or was deterred by it. Id. § 55.56(a)–(b). The district court determined that Brooke had not established that fact on summary judgment.

With only that factual issue left, the court converted the scheduled jury trial to a bench trial, concluding that the jury- trial right did not attach to claims for statutory damages under section 52(a) of the Unruh Act.

Tsay JBR petitioned the Court of Appeals for the 9th Circuit for a writ of mandamus, asking it to direct the district court to conduct a jury trial on the issue of Brooke’s entitlement to statutory damages. The panel held that the Seventh Amendment entitles parties in federal court to a jury trial on a claim for statutory damages under § 52(a) of the Unruh Act in the published case of Tsay JBR LLC v United States District Court for the Central District of California – 24-5234 (May 2025).

The Seventh Amendment to the United States Constitution provides that in “[s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” In this case the Court of Appeals considered whether a defendant in an action for statutory damages under section 52(a) of California’s Unruh Civil Rights Act is entitled to a jury trial.

“So long as a case involves a legal claim, the right to a jury trial attaches, even if the case also seeks equitable relief. See Curtis v. Loether, 415 U.S. 189, 196 n.11 (1974) (“The [jury-trial] right cannot be abridged by characterizing the legal claim as ‘incidental’ to the equitable relief sought.”); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 473 n.8 (1962).”

“The statutory damages in section 52(a) of the Unruh Act are thus a legal remedy. Because both the historical analog and the nature of the remedy reveal that Brooke’s claim is legal, the Court of Appeals held that the Seventh Amendment entitles parties in federal court to a jury trial on a claim for statutory damages under section 52(a) of the Unruh Act.”

Stephen Hofer is a licensed attorney who founded Aerlex Law Group (the Group), which specializes in aviation law. In 2008, Hofer was the sole partner of the Group and hired Vicky Boladian as a part-time contract attorney. Hofer and Boladian dispute whether their professional relationship became a romantic relationship between 2011 and 2017.

In 2013, Hofer and Boladian formed Aerlex Tax Services, LLC (the tax LLC), which would provide “tax-related services” to the Group’s clients and “others within the aviation industry.” Hofer had a 55 percent equity interest in the tax LLC; Boladian, a 45 percent interest. In 2017 and 2018, Hofer and Boladian had a falling out, which resulted in litigation. In September 2020, they agreed to settle the pending litigation by executing three agreements: 1) Settlement Agreement, 2) Amended and Restated Operating Agreement for the tax LLC and 3) Amended and Restated Buy-Sell Agreement of the tax LLC. These agreements contained provisions to arbitrate disputes.

In March 2023, Boladian asked Hofer to change the business form of the tax LLC to an LLP to avoid the potential of having a limited liability company engaged in the unauthorized practice of law. In August 2023, Hofer and Boladian dissolved the tax LLC and shifted its assets to Aerlex Tax Services, LLP (the tax LLP)—with the same 55/45 percent split of ownership. Two weeks later, Boladian formed the Boladian Aviation Law Group, APC (BALG). She then withdrew from the tax LLP, removing what she represented to be 45 percent of the physical office furniture and nearly all of the tax LLP’s clients.

On September 19, 2023, Hofer sent Boladian a letter exploring a possible settlement before “commencing formal litigation” and asserting his “free[dom] to seek a judicial resolution” of their disputes. The parties discussed mediation, but could not agree on a mediator.

On October 16, 2023, Hofer, the Group, the tax LLC and the tax LLP (collectively, the Hofer plaintiffs) filed a lawsuit against Boladian and BALG. The Hofer plaintiffs alleged 13 causes of action and sought compensatory damages, injunctive and equitable relief, treble damages, punitive damages, and attorney fees. Although Hofer had, prior to filing the complaint, “agree[d] to file in arbitration” if Boladian consented to BALG participating in arbitration, the Hofer plaintiffs in the complaint nowhere mentioned arbitration under any of the three agreements and did not pray for an order compelling arbitration.

On October 31, 2023, the Hofer plaintiffs applied ex parte for a temporary restraining order (TRO) seeking to prevent Boladian and BALG from performing any work for the clients of the tax LLP or the Group, from using any of the tax LLP’s employees, and from removing or using any tangible property or data taken from the tax LLP. Nowhere in the application did they mention arbitration under any of the agreements. The trial court denied the application

On November 16, 2023, the Hofer plaintiffs moved for a preliminary injunction, trying to remedy the defects with their earlier TRO application. Once again, the Hofer plaintiffs argued their lawsuit had merit and nowhere mentioned arbitration.

In the midst of these motions, the Hofer plaintiffs inquired whether Boladian and BALG would “be seeking to move this case into arbitration”; counsel responded that they had “no plans” to do so and this communication shed no light on the Hofer plaintiffs’ intent to do so.

On December 8, 2024 (while the Hofer plaintiffs’ motion for a preliminary injunction was still pending), Boladian and BALG demurred to nine of the 13 causes of action. On January 29, 2024, the Hofer plaintiffs propounded a total of 734 discovery requests to Boladian and BALG. The Hofer plaintiffs also subpoenaed a number of third- party witnesses for depositions in February 2024. They also noticed the deposition of Boladian for March 2024.

In anticipation of the case management conference, the Hofer plaintiffs on March 14, 2024, filed a case management statement. In some respects, the Hofer plaintiffs’ case management statement acknowledged the possibility arbitrating the dispute. The Hofer plaintiffs also posted their jury fees.

On April 23, 2024, Boladian filed a cross-complaint against Hofer and the Group, alleging five causes of action. On April 26, 2024—more than six months after filing their complaint and more than four months after the denial of the preliminary injunction, but just three days after the filing of the cross-complaint – the Hofer plaintiffs filed a motion to compel arbitration, invoking the arbitration clauses in the settlement agreement, amended operating agreement, and amended buy-sell agreement.

The trial court denied the motion to arbitrate ruling that the Hofer plaintiffs had waived their right to compel arbitration. Applying the waiver standard articulated in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, the court found “that [the Hofer plaintiffs] waived the right to arbitrate by filing suit in this court and substantially and vigorously litigating it for over seven months,” concluding that this conduct was “fundamentally incompatible with the expediency, efficiency, and cost- effectiveness associated with utilizing arbitration” and that this conduct “prejudiced” Boladian and BALG.

The Court of Appeal affirmed the trial court’s order in the published case of Hofer v. Boladian CA2/5 – B339542 (May 2025).

Under the California Arbitration Act (Code Civ. Proc., § 1280 et seq.) (the Act), a party with a contractual “right to compel arbitration” of a dispute may “waive[]” that right. (§ 1281.2, subd. (a).) In Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562 (Quach), – decided a month after the trial court’s ruling – the Supreme Court overruled the arbitration-specific definition of waiver embraced in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187 (St. Agnes) in favor of the “generally applicable” definition of waiver. (Quach, at p. 578.)

St. Agnes’s arbitration-specific definition of waiver called upon trial courts to evaluate six different factors – namely, “‘“(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled or prejudiced’ the opposing party.”’” (Id. at p. 1196.)

“Quach applies retroactively to this direct appeal.” Quach held that a waiver occurs under the Act if, by clear and convincing evidence, it is shown that a party has “intentionally relinquished or abandoned” its known right to compel arbitration. (Id. at pp. 569, 584.)

“In this case, the litigants seeking to compel arbitration initiated this lawsuit by filing a complaint in court and, while in the judicial forum, sought two forms of preliminary injunctive relief, opposed a demurrer, propounded more than 700 discovery requests, demanded a jury trial in their case management conference statement and represented they would be litigating substantive motions, and posted jury fees. It was not until the opposing party filed a cross-complaint that the litigants filed the motion to compel arbitration – more than six months into the litigation in court.”

The litigants’ conduct in this case constitute a waiver under Quach.

George Zeber filed a workers’ compensation claim for cumulative injury sustained during his employment with the New York Yankees from 1968 through 1978. Whether the New York Yankees had workers’ compensation coverage during this time was disputed by Travelers Indemnity Company.

After a three day trial, The WCJ found Zeber, while employed from June 1, 1968 through September 1, 1978 with the New York Yankees, sustained an injury arising out of and in the course of his employment. The WCJ, however, deferred any finding of permanent disability, apportionment or attorney fees pending development of the medical record.

The WCJ also found the New York Yankees had coverage provided by an insurer, now administered by Travelers. In light of that finding, the WCJ noted that disputes between the parties involving a right of contribution under section 5500.5 must be sent to arbitration pursuant to section 5275, subdivision (a)(2).

Travelers filed a petition for reconsideration, arguing (1) the “New York Yankees failed to prove the existence of workers’ compensation coverage from the period of April 5, 1977 to September 1, 1978,” and (2) Zeber’s “[s]ubmitted medical reports were not substantial medical evidence.” Subsequently, the WCAB partially granted the petition for reconsideration. On September 13, 2022, it amended the WCJ’s decision to (1) “defer the issue of insurance coverage which is subject to mandatory arbitration”; and to “[a]mend the award to clarify that it is against Travelers.”

On October 28, 2022, Travelers filed its first Petition for Writ of Review with the Court of Appeal. The petition argued the WCAB erred in deferring the issue of insurance coverage to mandatory arbitration because mandatory arbitration under section 5275, subdivision (a) applies only to injuries occurring on or after January 1, 1994 and Zeber’s injuries occurred long before 1994. It further argued that the New York Yankees failed to satisfy their burden of proof at trial that the New York Yankees were insured during Zeber’s last injurious year.

The WCAB filed an informal letter responding to the petition. It stated that after further review of the administrative record, it concluded no award could be issued against Travelers until the deferred insurance coverage issues are finally adjudicated. The WCAB asserted “the issue of whether the insurance coverage in this case is subject to mandatory arbitration under . . . section 5275 has not yet been raised or adjudicated below.” It requested this court annul the decision and remand the matter for the WCAB to issue a corrected reward.

On February 9, 2023, the Court of Appeal issued an order vacating the WCAB’s decision and remanding the matter for further proceedings. At that time it declined to address any issue raised in the petition.

Following remand, on March 1, 2024, the WCAB issued an opinion and decision. It reinstated and affirmed its September 13, 2022 decision but rescinded and deleted the award pending further proceedings. The WCAB returned the matter “to the trial level for further proceedings, including but not limited to mandatory arbitration of insurance coverage . . . .” (Zeber v. New York Yankees (Mar. 1, 2024, ADJ10857121.)

On April 15, 2024, Travelers filed its second Petition for Writ of Review, arguing arguing section 5275, subdivision (a)(1) applies only to cases involving injuries occurring on or after January 1, 1994. Because Zeber admitted he sustained his cumulative injury no later than 1978, Travelers argues the insurance coverage dispute must be determined by a workers’ compensation judge (WCJ), and not by an arbitrator.

The Court of Appeal annulled the WCAB’s decision, and remanded the case for further proceedings, including a finding of the date of injury for purposes of mandatory arbitration in the unpublished case of Travelers Indemnity Co. v. Workers’ Compensation Appeals Bd. CA4/3 – G064030 (May, 2025).

The WCJ never made a finding on the date of injury for purposes of section 5275. The WCAB suggests the Court of Appeal annul the challenged decision and remand for further proceedings, including a finding of the date of injury for purposes of section 5275.

“Travelers’ argument is based on its request for judicial notice of a stipulation by the parties. We deny the request because we cannot consider evidence outside of the certified record. (See § 5951 [“No new or additional evidence shall be introduced in [the reviewing] court, but the cause shall be heard on the record of the appeals board, as certified to by it”].) Nevertheless, the certified record contains a copy of the stipulation, so we consider Travelers’ argument.”

“By using ‘date of injury’ as described in section 5275, subdivision (b), it can be inferred that the Legislature intended ‘date of injury’ to mean the same for section 5275, subdivision (a)(1). In sum, the ‘date of injury’ for purposes of mandatory arbitration in cases involving cumulative injury is the “date of injury” set forth in section 5412.”

“As the WCAB and Travelers both noted, the WCJ never made a finding of the “date of injury” under section 5412 for the purposes of section 5275, subdivision (a)(1). Rather, the WCJ discussed the “date of injury” for statute of limitations purposes only, and found that “without appropriate knowledge, the claim cannot be barred pursuant to [section] 5412.” Because the “date of injury” is a factual question and a prerequisite for mandatory arbitration, we conclude the WCAB acted in excess of its authority to send the insurance coverage dispute to mandatory arbitration.”

The California Department of Justice’s Disability Rights Bureau, announced the release of the fifth edition of “Legal Rights of Persons with Disabilities,” a publication that provides information regarding the rights of people with disabilities in California.

This handbook summarizes state and federal laws that protect the rights of individuals with disabilities in many arenas, including in the workplace and in accessing facilities open to the public. The handbook covers disability rights and obligations in a variety of contexts including businesses and places of public accommodation, employment, housing, K-12 education, healthcare, voting, and telecommunications, with chapters released on an ongoing basis since January 2024.

All chapters of the “Legal Rights of Persons with Disabilities” handbook are available at https://oag.ca.gov/civil/disability-rights including new and updated chapters on:

– – Introduction to State and Federal Disability Rights Laws: This chapter provides an overview of major California state and federal laws that protect the rights of people with disabilities.
– – Access to Businesses and Other Public Accommodations for People with Disabilities: This chapter discusses California and federal laws that prohibit disability-based discrimination in business establishments and other public accommodations. It also describes an individual’s options when they have experienced disability-based discrimination in business establishments and other public accommodations.
– – Access to Healthcare for People with Disabilities: This chapter describes the state and federal laws that protect the rights of people with disabilities to access healthcare services, including hospitals and other facilities, services, insurance plans, and information offered by doctors’ offices and other medical providers. It also describes an individual’s options when they have experienced disability-based discrimination in healthcare services.
– – Disability Rights in Employment: This chapter discusses major California and federal laws that protect people with disabilities from discrimination, harassment, and retaliation in employment. It also describes an individual’s options when they have experienced discrimination in employment because of their disability.
– – Disability Rights in Housing: This chapter discusses California and federal laws that protect persons with disabilities from public and private housing discrimination. It also describes options when persons with disabilities have experienced discrimination in housing because of their disability.
– – Disability Rights in K-12 Education: This chapter discusses the rights of students with disabilities in pre-school, primary, and secondary education under California state and federal law.
– – Access to Voting for People with Disabilities: This chapter discusses access to polling places and the voting process under federal and state election laws. Additionally, this chapter describes an individual’s options when they have experienced dis­crimination because of their disability while registering to vote or voting.
– – Access to Public and Private Buildings and Facilities for People with Disabilities: This chapter provides an overview of state and federal laws that set requirements for physical accessibility of both public and private buildings and facilities. In addition, this chapter provides information regarding options for individuals who have experienced discrimination regarding physical accessibility.
– – Access to Telecommunications for People with Disabilities: Telecommunications services are services that allow people to communicate through cable, radio, television, satellite, or wire equipment and include a variety of services like telephone and text message services. This chapter details state and federal laws regarding telecommunication services ensuring that people with disabilities have equal access to said service. It also provides information if there are concerns about accessibility of a product or service.
– – Benefits and Services for People with Disabilities: This chapter highlights state and federal benefits, programs, and services that are designed to assist people with disabilities.
– – Service Animals: This chapter discusses the rights of people with disabilities to use service animals and emotional support animals under both federal and California laws. This chapter also provides the various complaint options people have when their rights regarding service or emotional support animals have been violated.

Nearly one quarter of adults in California have a disability – 7,090,015 adults according to 2019 CDC data. The disability demographic is broken down into the following groups: – Mobility 11%: Serious difficulty walking or climbing stairs – Cognition 11%: Serious difficulty concentrating, remembering, or making decisions – ;Independent living 5%: – Serious difficulty doing errands alone, such as visiting a doctor’s office – Hearing 5%: – Deafness or serious difficulty hearing – Vision 5%: Blind or serious difficulty seeing, even when wearing glasses – Self-care 4%: Difficulty dressing or bathing.

It is with great sadness that we announce that Oxnard Workers Compensation Judge William M. Carero passed away on April 24th, 2025 at age 69. He is survived by his wife Ana, his children, his two grandchildren, his brother – Christopher Carero, his nieces – Jada, Chrissy, and Aimee Carero, and his cousins – Robert Bubniak and Katherine McClellan, and numerous family and friends.

Judge Carero is predeceased in death by his parents, William and Lottie Carero, as well as Anton and Ethel Carero, John and Elsa Carero, Elizabeth (Bettie) and Edgar Gerberich, and Joseph and Stasia Bubniak.

According the history published by the Ventura County Star, after high school, William – “affectionately known as Bill” – traveled to the west coast to attend Loyola Marymount University, in Los Angeles, California. His enthusiasm for journalism expanded into a role as writer and photo editor for the Los Angeles Loyolan newspaper – he could often be found developing film in the college’s darkroom. In 1975,

Bill co-authored an article that was published in The People’s Almanac. Bill graduated pre-law with a degree in Philosophy in 1977, then went on to earn his Juris Doctor degree at Loyola Law School in 1980, working as news editor for The Loyola Reporter during his years at the school.

Bill began his career at Von Mizener Law as an applicant’s attorney, then moved on to work at Stockwell, Harris, et al., where he practiced as a defense attorney for 17 years. In 2001, Bill was sworn in as a Workers’ Compensation Administrative Law Judge in Ventura County, a position which he held until his retirement in April 2025. Bill proudly served as chair member of the California Lawyer’s Association from 2018 to 2021, where his role was to promote and encourage community among practitioners.

Bill was a founding member of his band, CC&R (Clint, Carero, and Rassp), and devoted countless hours to writing lyrics, playing guitar, singing, and rehearsing. According to its website CC&R is a “A Worker’s Compensation Parody Band” consisting of members Hon. Bill Carero (Guitar, Vocals), John McNeely (Guitar, Vocals), Jesse Bernal, Esq. (Drums), Hon. Clint Feddersen (Bass, Sax), Colleen Hjelle (Vocals), Hon. Robert Rassp (Keyboards), and his son Daniel Rassp (Producer). The original band members consisted of Clint, Carero, and Rassp (Robert), hence the name “CC&R.”

The repertoire of CC&R consists of parodied versions of classic rock hits from 1969-1991, including artists such as Tom Petty, The Beatles, Chicago, Nirvana, Pink Floyd, Queen, Alice Cooper, Lynyrd Skynyrd, Elton John, The Who, The Animals, Metallica, and many more. The songs are parodied by taking the original lyrics of these hit songs, and replacing them with lyrics that comment and criticize the worker’s compensation industry, and their infatuation with classic rock.

The band premiered at the Worker’s Comp Central’s Comp Laude Galla at the Marriott Hotel in Burbank, CA. This was one of six performances of the 2017 Southern California Tour, making it the band’s most ambitious year. CC&R has become a sensation in the worker’s compensation community, and has performed all across California, including as far north as Monterey.

CC&R adapted to the COVID 19 pandemic by going virtual and introducing music videos featured on it’s own YouTube channel where it’s hit songs such as “AME” (A Parody of “Let It Be” by The Beatles) – “What I Like About Comp” (Parody of “What I Like About You” by The Romantics) – “Stop Dragging My Case Around” (Parody of “Stop Dragging My Heart Around” by Tom Petty) – “Surveillance In The Park” (Parody of “Saturday In The Park” by Chicago) – “I’m PJ!” -(Parody of “I’m 18” by Alice Cooper) can still be enjoyed by the workers’ compensation community.

A vigil and rosary will be held in his honor at Ivy Lawn Funeral Home in Camarillo at 5:00 p.m. on Friday, May 9, 2025. Funeral services will be held at Padre Serra Parish at 9:00 a.m. on Saturday, May 10th, with a celebration of life to follow.