Douglas Rochen

Alcohol abuse is rampant amongst youth and often leads to death or severe injury to others. In addition, the abuse of alcohol among minors results in crimes against third parties such as drunk driving and sexual assault.

Brian Kabateck and Douglas Rochen wrote a column that ran in the Daily Journal on Aug. 6, 2014 about how despite the fact that recent laws have expanded the definition of who is considered a common carrier, ridesharing and private limousine companies still erroneously claim they are private transportation subject to only ordinary duty of care. Under California law, common carriers are subject to a “higher duty of care to safely deliver passengers to their destination, and may be liable for… Show more

Brian Kabateck and Douglas Rochen wrote a column that ran in the Daily Journal on Aug. 6, 2014 about how despite the fact that recent laws have expanded the definition of who is considered a common carrier, ridesharing and private limousine companies still erroneously claim they are private transportation subject to only ordinary duty of care. Under California law, common carriers are subject to a “higher duty of care to safely deliver passengers to their destination, and may be liable for failing to act affirmatively to prevent harm,” Kabateck and Rochen write. “In contrast, under ordinary care, a person is not liable unless he or she is actively careless.”

A common carrier is a person or entity hired to transport passengers from one place to another for a set price. Private transportation, on the other hand, operates “only for the benefit of a particular class and not for the benefit of the public generally.”

The problem is exacerbated by the fact that presumed private transportation has grown over the years with ridesharing companies like Uber and Lyft becoming increasingly popular, Kabateck and Rochen note. But just because a service costs more and is deemed more exclusive, doesn't mean it should bear any less responsibility for making sure passengers are safe.

“Not every accident is avoidable. However, common carriers by the nature of their business, their service to the public, and the money they receive as professional operators, are expected to do everything in their power to prevent an accident. Limousine carriers should be no exception,” Kabateck and Rochen wrote. “The heightened standard of care is imposed because they undertake, through a special relationship, to transport "precious cargo" to safety. Given the recent evolution of laws in the U.S., it will not be a surprise to see companies such as Uber, Lyft and other limousine companies, being held to stricter standards.” Show less

Brian Kabateck and Douglas Rochen wrote a column that ran in the Daily Journal on Aug. 6, 2014 about how despite the fact that recent laws have expanded the definition of who is considered a common carrier, ridesharing and private limousine companies still erroneously claim they are private transportation subject to only ordinary duty of care. Under California law, common carriers are subject to a “higher duty of care to safely deliver passengers to their destination, and may be liable for… Show more

Brian Kabateck and Douglas Rochen wrote a column that ran in the Daily Journal on Aug. 6, 2014 about how despite the fact that recent laws have expanded the definition of who is considered a common carrier, ridesharing and private limousine companies still erroneously claim they are private transportation subject to only ordinary duty of care. Under California law, common carriers are subject to a “higher duty of care to safely deliver passengers to their destination, and may be liable for failing to act affirmatively to prevent harm,” Kabateck and Rochen write. “In contrast, under ordinary care, a person is not liable unless he or she is actively careless.”

A common carrier is a person or entity hired to transport passengers from one place to another for a set price. Private transportation, on the other hand, operates “only for the benefit of a particular class and not for the benefit of the public generally.”

The problem is exacerbated by the fact that presumed private transportation has grown over the years with ridesharing companies like Uber and Lyft becoming increasingly popular, Kabateck and Rochen note. But just because a service costs more and is deemed more exclusive, doesn't mean it should bear any less responsibility for making sure passengers are safe.

“Not every accident is avoidable. However, common carriers by the nature of their business, their service to the public, and the money they receive as professional operators, are expected to do everything in their power to prevent an accident. Limousine carriers should be no exception,” Kabateck and Rochen wrote. “The heightened standard of care is imposed because they undertake, through a special relationship, to transport "precious cargo" to safety. Given the recent evolution of laws in the U.S., it will not be a surprise to see companies such as Uber, Lyft and other limousine companies, being held to stricter standards.” Show less

August 7, 2013 - Brian Kabateck and Douglas Rochen co-authored an article published in the Daily Journal on Aug. 7, 2013 about the split in opinion among courts about whether it is proper for a defendant to remove a case to federal court based on diversity jurisdiction when the plaintiff has not been able to properly serve the local defendant in the case.

“The courts, in making this determination, have been split between ruling based on the policy behind the statute or the literal… Show more

August 7, 2013 - Brian Kabateck and Douglas Rochen co-authored an article published in the Daily Journal on Aug. 7, 2013 about the split in opinion among courts about whether it is proper for a defendant to remove a case to federal court based on diversity jurisdiction when the plaintiff has not been able to properly serve the local defendant in the case.

“The courts, in making this determination, have been split between ruling based on the policy behind the statute or the literal interpretation of the “properly joined and served” requirement in 28 U.S.C. Section 1441(b)(2),” Kabateck and Rochen explain. “The policy-based interpretation is the prevailing position in the Eastern District of California and the majority position in the district courts within the 9th Circuit.”

Under the policy-based interpretation, there is no bright-line rule as to the number of days a defendant must give a plaintiff before filing removal papers.

“Rather, the courts have left this determination open to permit plaintiffs reasonable time, under the circumstances of the case, to serve the forum defendant. Most district courts interpret the forum defendant rule as disallowing removals if a plaintiff has been diligent in attempts to serve a forum defendant,” the authors wrote. “The rationale for this ruling is straightforward - the stratagem of a preemptive removal is not a legitimate basis for disregarding the existence and purpose of the forum-defendant rule.”

On the other hand, courts following the literal interpretation contend that removal is proper even if the local resident defendant has not been served.

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May 17, 2013 - Brian Kabateck and Douglas Rochen wrote an article published in The Recorder on May 17, 2013 about a minor's compromise, a procedure by which settlements involving a person under 18 are approved by the court, and a rule that was recently enacted that lifts the cap on attorney fees in those cases. Rule 7.955 allows courts to make orders authorizing that “reasonable expenses” be paid from the settlement proceeds going to the minor.

Before the rule was enacted, attorneys were… Show more

May 17, 2013 - Brian Kabateck and Douglas Rochen wrote an article published in The Recorder on May 17, 2013 about a minor's compromise, a procedure by which settlements involving a person under 18 are approved by the court, and a rule that was recently enacted that lifts the cap on attorney fees in those cases. Rule 7.955 allows courts to make orders authorizing that “reasonable expenses” be paid from the settlement proceeds going to the minor.

Before the rule was enacted, attorneys were often discouraged from representing minors in personal injury matters because it was thought that they could only charge 25 percent of the gross recovery obtained in attorney fees.

“In fact, virtually all plaintiffs use contingent fee arrangements as clients normally have limited means and the contingent fee arrangement offers the only realistic hope of establishing a legal claim,” Kabateck and Rochen wrote. “Without allowing the attorney to be fairly compensated, the severely injured minor plaintiff faces difficulty finding adequate representation. And lawyers may be discouraged from taking meritorious cases with a minor plaintiff because the time and money spent would be handicapped by a capricious 25 percent cap.”

According to the authors, when approving attorney fees in personal injury cases involving minors courts can consider factors including the novelty and difficulty of the questions involved, the skill required to perform the legal services, the reputation and ability of the attorney performing the legal services, the expenses and time incurred and the results obtained. But an attorney must submit a petition seeking those reasonable fees along with a declaration explaining the basis for the request and any relevant factors.

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