Byron M. Rabin, Esq.

Wage and Hour

• Mediated a case wherein a franchise manager alleged a hostile work environment.
• Mediated and settled case involving a caregiver, paid as an independent contractor, who claimed the employer failed to provide breaks and pay minimum wage and overtime.
• Mediated and resolved a dispute concerning whether employees were controlled (requiring pay for all hours worked) or uncontrolled (requiring pay for actual time spent on work). The plaintiff employees worked in the evening, after the employer's regular office hours, and on the weekend when the employer was closed. Further, the plaintiff employees alleged that they were required to work with a computer to get their work done and received numerous calls during their scheduled work. The defendant alleged that work could be done off-site, allowing plaintiffs to have extensive personal time, and as such, hours were overpaid. Additional allegations made by plaintiffs included failure to pay for the use of personal equipment and wage statement violations. Case resolved confidentially.
• Mediated a case brought forth by a plaintiff employed by the defendant family to care for their mother for several years. A member of the defendant family authored the original employment agreement, without a legal opinion, which classified the plaintiff as an independent contractor. The plaintiff alleged she was required to do domestic chores in addition to her caregiving responsibilities, making her a domestic worker. The employment agreement mandated that the plaintiff be available 24/7; if the plaintiff was unavailable for any reason, she would have to provide a substitute at her own expense. The plaintiff alleged that the defendants failed to pay minimum wage semi-monthly, didn't provide wage statements, or provide meal breaks. The case resolved for a confidential amount.
• Mediated a Wage and Hour case brought forth by a maintenance supervisor with a monthly salary and provision of a residence. The plaintiff alleged that the payroll slips he submitted were modified by the company payroll manager, resulting in him not receiving accurate wage statements or being paid for all hours worked and overtime. The plaintiff further alleges whistleblower termination following complaints he made over a cover-up of health hazards. Lastly, the plaintiff alleged that when he made complaints about working conditions after being fired, his final payment was not provided in a timely manner. The defendant denied all allegations. The case was resolved confidentially.

Wrongful Term & Discrimination

• Mediated a case brought forth by an employee who was a member of a protected class, both by age and gender, and claimed that she was wrongfully terminated.
• Mediated a case involving plaintiffs who were fabric workers in their mid-60s who had worked for their company for 30+ years. The plaintiffs alleged that they were terminated after suffering injuries. The defendant indicated that the company cut its workforce due to economic reasons, which their records supported.

Wrongful Termination

• Mediated a case involving a plaintiff who alleged that she was wrongfully terminated after bringing forward complaints regarding the safety of staff and residents, in addition to having taken an FMLA leave for medical reasons. The plaintiff's employer disputed this claim, stating that the plaintiff was terminated due to her failure to follow company policy regarding smoking and insubordination. The case resolved for a confidential amount.
• Mediated a case involving a plaintiff who was a long-term employee at an assisted living facility. During her employment, the plaintiff alleged that she made complaints regarding safety issues. Following these complaints, the plaintiff requested and received FMLA leave due to a back injury, which she later extended to a medical leave. After returning to work, the plaintiff was discovered smoking in a non-designated area. She was counseled regarding the company policy prohibiting smoking in non-designated locations. Later in the same day, the plaintiff was again discovered violating the same company policy, leading to her termination for insubordination. The plaintiff alleges that a prior supervisor permitted her to smoke in that area and that she was actually terminated for her prior safety-issue complaints and medical condition. The case settled confidentially.

Coverage

• Mediated a case between a plaintiff and lien claimant who had previously settled a third-party case but were unable to agree on the division of the proceeds. The case centered on legal questions regarding the viability of the lien after their dismissal with prejudice of the third-party case without intervention, requirements of MSA, and credit rights against future medical benefits. The case resolved with an agreed-upon division of the funds being held and no credit taken against the plaintiff's future medical benefits.

Subrogation

• Mediated an insurance subrogation case involving a defendant hotel guest, her boyfriend, and an insurance company plaintiff that insured the hotel where the couple was staying. The incident at the center of the case started when the defendant and her boyfriend returned to the hotel after a night of cocktails. The defendant took a Benadryl, which she claims put her to sleep for the night. While the defendant was asleep, her boyfriend stepped into the shower and subsequently passed out on the drain. The shower filled with water, eventually causing the room to flood. The defendant denied liability, indicating that she couldn't be held responsible for her boyfriend's actions after she fell asleep (no notice). The plaintiff insurance company sued the defendant for negligence and breach of contract, claiming that the defendant signed a document at check-in agreeing to take responsibility for any damage present at check-out. The defendant retorted, saying the contract was one of adhesion and ambiguity. The parties resolved the matter after a full day of mediation.

Dental

• Mediated a case wherein the plaintiff alleged dental malpractice regarding a dental implant procedure administered by the defendant dentist and their dental office. The case centered on issues of contributions based on reportable limits and consent. The dental office acknowledged vicarious liability based upon the code for independent contractor dentists but resisted making a payment above reportable limits. Further, there were also issues regarding the practicing dentist coverage defended under a reservation of rights. Though the case did not resolve at mediation, subsequent follow-up from Byron Rabin led to a resolution.

Medical

• Mediated a case involving a developmentally challenged young man in home health care who suffered an injury to his face and head.
• Mediated a case involving a nasal surgery patient who had a subsequent anoxic injury resulting in significant injury requiring long-term care. The case involved a significant loss of consortium claim.

Legal

• Mediated a case pertaining to the defendant's handling of a third-party case arising from a workers' compensation case. The defendant's office was handling both the workers' compensation and third-party subrogation claims. It was alleged that in the subrogation matter, the defendant's office committed legal malpractice. It was also alleged that there were actions on the part of the defendant permitting punitive damages. After months of discussions, the case was resolved by way of a settlement.

Breach Of Contract

• Mediated a breach of contract case related to the failure to disclose defects in the stability of a property purchased for a low seven-figures with cracks on its floors.
• Mediated a breach of contract case between neighbors who lived in a private community. The case revolved around an incident of water intrusion in the plaintiff's house after a rainstorm. The plaintiff alleged that the water intrusion was caused by a pond that their neighbor (the defendant) installed along an adjacent common wall. The defendant contested that the pond was at fault for the water intrusion. The case required two sessions and a follow-up before being resolved.

Home Owners Association

• Mediated and resolved a case regarding a plaintiff who discovered a water intrusion in a condominium they had recently purchased. The plaintiff had just begun renovations on the condo when the intrusion was discovered, resulting in damage to the condo. Litigation ensued, which included disputes regarding the interpretation of the Civil Code application as well as CCR's.

Real Property

• Mediated a case wherein a termite company went defunct. An insurance carrier intervened to defend an action the termite company billed for work that was not completed before the sale of a historic home.

Warranty of Habitability

• Mediated a case regarding plaintiffs who were withholding rent due from their landlord due to habitability issues. The plaintiffs further disputed the effort with which the landlord made repairs.
• Mediated a case wherein the plaintiffs, residents of a single apartment in a multi-unit complex, alleged habitability issues due to mold from a leaky roof and an infestation of pests. The plaintiffs alleged that they sustained both physical injuries and emotional distress due to the habitability issues. The defendants indicated that upon first being notified about the mold issues, they moved the plaintiffs to a different location, paid for their accommodations, and remediated, disputing the effects of the exposure. Further, the defendants brought forth repair records indicating that they had responded to all complaints the plaintiffs made and that no other tenants of the building had submitted similar complaints. The defendants also indicated that not all residents of the single apartment were on the lease - a direct violation of the lease agreement. The matter was resolved confidentially.
• Mediated ability claims brought forth by several tenants of a large apartment complex. The settlement was complicated by the fact that there were multiple carriers and owners during the plaintiffs' tenancy. The case was resolved confidentially 90 days after the original session with a complex mediator's proposal and significant follow-up.
• Mediated and resolved a case involving multiple individuals living in a property in Bakersfield. The plaintiffs claimed issues of habitability related to mold exposure over their 7-year residency. The case involved significant disputes on both liability and damages. The matter was being defended under a reservation of rights regarding multiple claims being made.

Assault and Battery

• Mediated a case wherein the plaintiff alleged assault and battery by the defendant. The plaintiff claimed, with video proof, that the assault and battery occurred in the course and scope of the defendant's employment, bringing the employer into the fold. The employer raised significant issues with the case regarding their legal exposure and how the video would be viewed by the jury. The case settled with a confidential settlement with terms of mutual confidentiality and non-disparagement.

Catastrophic Injury

• Mediated a case in which the plaintiffs included the wife and minors in a wrongful death case. The decedent was working on a forklift for the management company of one of the defendant's properties. The forklift fell, causing death. There was a pending MSJ from the property owner based on a special employment defense. There was also a pending workers' compensation case and a Serious and willful claim. All parties participated in the mediation. The case resolved globally - resolving the civil case, workers' compensation case, and serious and willful claim.
• Mediated a case regarding an incident in which the plaintiff, while riding his bicycle on a sidewalk, was hit by a large truck. The defendant truck driver said they didn't see the plaintiff. The plaintiff sustained a degloving injury to his arm requiring multiple surgeries, the need for future care, and residual scarring and disability. The case resolved in the seven-figure range.
• Mediated a case involving a passenger being transported to an event in a commercial bus. The plaintiff alleged that they sustained TBD and orthopedic injuries. The case had previously been mediated twice before with a mediator's proposal, but didn't resolve. Punitive damages were alleged, and there was a pending motion to strike these damages. The case resolved for a confidential sum.

Discrimination

• Mediated a case regarding an Equal Employment Opportunity Commission that visited apartment complexes. At these visits, it is alleged that the testers were treated differently based on their race.

Elder Abuse

• Mediated a case involving a dependent adult who developed a decubitus ulcer after being released from the hospital and receiving in-home health services.
• Mediated a case wherein a profoundly disabled man developed a bedsore on his foot because the nursing home was not turning him. It was also alleged that the nursing home did not provide the man with items that could've prevented the development of these bedsores, such as a mattress, heel cradles, and protection. Further, it was alleged that the man was found fouled with soiled clothes on several occasions.
• Mediated and settled a case brought by estate alleging inadequate care of parent, resulting in death. Further allegations on altered and falsified records.
• Mediated a case involving a paraplegic plaintiff who developed a decubitus ulcer following her home health care provided by the defendant. The plaintiff's complaint alleged both elder abuse and medical malpractice. The defense raised issues regarding the plaintiff's self-care as well as care being provided or not provided by her husband. The defense also raised questions disputing that this was an elder abuse claim, and if it would be limited by MICRA. The case settled for a confidential sum.
• Mediated a case in which the plaintiff, represented by his guardian, alleged elder abuse during his stay at the defendant's skilled nursing facility. The plaintiff's guardian alleged that the plaintiff was improperly assessed, provided an inappropriate care plan, and subsequently received inadequate care. The plaintiff's guardian alleged that the plaintiff was suffering from a perforated abdomen during their time at the facility that went unrecognized, leading to sepsis, dehydration, and their eventual death 10 days after they had been admitted. The plaintiff further alleged that the records at the nursing facility were falsified. The case's contentious nature led the court to mandate the use of a discovery referee. Coverage could not sufficiently resolve the case, so the plaintiff sought contribution in excess of the policy. The defendant indicated that he would "buy out" his policy so he could control further settlement negotiations. The case resolved for a confidential amount with a personal contribution by the defendant.
• Mediated a case involving a plaintiff who suffered from an illness that rendered him in a vegetative state, requiring him to be admitted to a care facility. The plaintiff's representatives alleged elder abuse on the care facility's part - pointing to the bedsores the plaintiff developed from not being turned enough or being provided protective equipment as proof. Further, the plaintiff's representation also noted that the plaintiff was found soiled on several occasions. Over the course of the proceedings, it was discovered that the facility employees falsified records, which resulted in possible exposure to punitive damages. The case resolved for a confidential amount.
• Mediated an elder abuse case against a residential care facility over their treatment of the plaintiff, a senior citizen with dementia. The plaintiff alleged that the care facility failed to properly assess the senior citizen's condition through an appropriate physician, and that the senior's care was provided by staff who lacked training and appropriate certification. Further, the plaintiff alleged that there was an incident that caused the senior citizen to sustain an ankle fracture that required hospitalization, an open reduction, and internal fixation. The plaintiff was not able to communicate the mechanism of the injury. It was alleged that she was dropped, but with her inability to communicate, there was a dispute as to the mechanism of injury. It is alleged that thereafter that there was motivation on the part of the defendant not to report the fall, and that this resulted in a delay in providing care. The case was resolved in mediation.
• Mediated a case involving a paraplegic plaintiff who had been hospitalized. After release, the plaintiff was set up with a home health care service provider. The plaintiff developed a decubitus ulcer, raising questions regarding the care provided by those other than the defendant, including self-care and family care. Allegations were raised regarding both elder abuse and malpractice. The matter was resolved confidentially as malpractice rather than elder abuse.
• Mediated a case involving a plaintiff in a vegetative state who developed bedsores and dehydration at the defendant's facility. The defendant was represented by both personal counsel and counsel from the defendant's carrier. Records suggest alteration. Matter resolved with persistent follow-up.

General Negligence

• Mediated a case wherein the plaintiff participated in a rigorous athletic obstacle course for a television program. The plaintiff sustained serious injuries. Prior to participating, the plaintiff signed waivers. The defendants relied on signed waivers in addition to the assumption of risk for recreational activities as the basis of their defense. The plaintiff alleged the concealment of material facts and gross conduct. The case resolved in mediation.
• Mediated a case involving a plaintiff, an employee at a retail establishment, who sustained an injury while on the job. The plaintiff alleged that their injury happened after a contractor caused a product to fall on the floor. The defendants disputed liability, claiming that the items were being tossed by the plaintiff in anger rather than falling as the plaintiff described. There is a lien by the workers' compensation carrier who did not attend the mediation. The disputed liability between the plaintiff and the defendant did not affect the obligation for benefits for injuries in the course and scope. The workers' compensation continued regarding indemnity and further medical treatment. Since the defendant wanted the assurance of a global settlement, the plaintiff agreed to settle and take responsibility for any claim that might be made by the workers' compensation carrier. There will be an effort to attempt to structure a Compromise and Release in the workers' compensation Case.
• Mediated and resolved a case involving a plaintiff home inspector who came onto a property and met a seemingly friendly golden retriever. Something riled up the dog, causing it to jump up and bite the plaintiff. The dog bite eventually becomes infected. The plaintiff now suffers from a fear of dogs, which is a problem because his profession requires him to enter homes regularly.

Personal Injury

• Mediated a case involving a senior citizen who slipped and fell at her apartment. The case featured a significant dispute regarding liability and causation.
• Mediated a case wherein the plaintiff's hand was crushed after a 3rd party operator lifted a rig before being given the ready signal.

PI Auto

• Mediated a case with a plaintiff involved in a rear-end automobile accident. The plaintiff, who had already had lumbar surgery, had an unsuccessful neck surgery requiring a 3rd surgery.
• Mediated a case wherein the plaintiff sustained a rear-end impact while in his company car. Since the plaintiff was the owner of the business, he had no workers' compensation coverage. The plaintiff sustained serious injuries necessitating two spinal surgeries to his cervical and lumbar. As a result of his injuries, the plaintiff's company was dissolved. The plaintiff alleged that although he is still able to work, he is not able to do so full-time. The case resolved after two mediation sessions.
• Mediated a case that had previously been tried with an appeal filed by the plaintiff. The case was to go to trial again. It was an admitted liability case with a dispute regarding the nature and extent of the injuries. The major cause of contention was whether the plaintiff sustained a traumatic brain injury. The case resolved in mediation.
• Mediated a case involving an automobile-pedestrian accident. The plaintiff underwent a percutaneous discectomy. The plaintiff's medical bills exceeded six figures, although they were a lien and disputed. A policy limit demand was made on multiple occasions, and the plaintiff alleged the policy was open. The defense alleged that there was a basis for delay in response. The matter resolved in excess of policy limits.
• Mediated a case regarding a multiple-automobile truck accident. The defendant's carrier required a resolution of all claims before entering into a settlement of any single claim. The plaintiffs couldn't agree on a division of policy. Liability was not in question; injury and causation were in issue. The plaintiffs settled with the defendant and entered into a binding arbitration on the issue of the distribution of the settlement.

Premises Liability

• Mediated a case wherein a woman with a history of falling tripped at her house of worship. It was alleged that the fall occurred because the woman was not allowed to use her walker at the facility. She broke her hip, had surgery, and one month later, she broke the other hip, which led to issues of causation.
• Mediated a case regarding a plaintiff who, while working on the defendant's loading dock, fell because of an exposed bolt, resulting in serious injury. The case required follow-up to resolve the absent worker's compensation intervener.
• Mediated a case wherein the plaintiff went to the defendant's place of business to install video cable for a security system, allegedly as an independent contractor. As the plaintiff stood on a ladder, they came into contact with a high-voltage electrical wire. The facts of the accident were disputed. Did the plaintiff contact the electrical wire and fall, or did he lose balance on the ladder, reach for the conduit, and dislodge the electrical wire from the conduit? The plaintiff fell from the ladder and sustained a serious injury requiring hospitalization and surgery. The case resolved after the mediation session with extensive follow-up.
• Mediated a premises liability case stemming from an incident where the plaintiff was fell while skating at the defendant's skating rink. The plaintiff alleged that there was an enhanced risk that trumped the assumption of risk. The plaintiff suffered a significant injury to her wrist, which required 2 surgeries with residual complaints.
• Mediated a case involving a plaintiff who had two different accidents a week apart: a slip and fall with disputed liability and an auto with no dispute on liability. There was a dispute regarding the apportionment of damages between the two accidents, with each defendant pointing to the other for causation. Both defendants disputed the nature and extent of damages. The matter was resolved at the session.
• Mediated a case with a plaintiff who ran a sporting camp at a college campus under contract. While riding a bicycle, the plaintiff came upon an unpainted chain separated by two poles blocking access. In an attempt to avoid the chains, the plaintiff fell from his bike and subsequently suffered injuries. It was alleged that the chains had at one point been painted for visibility and that it was negligent to allow paint to degrade. Further, it was alleged that allowing the paint to degrade was a substantial factor in the plaintiff's injury. The defendants disputed that the chain was not visible, and felt that the case was defensible, and also raised comparative negligence. The defendants also raised a signed waiver by the plaintiff. The case did not resolve at the mediation as the parties were far apart. There was significant follow-up to no avail, and the parties started in trial. As a last effort, 5 months after the mediation, a mediator's proposal was given and resulted in a settlement.
• Mediated a case regarding a seventh-grader who was playing football at recess and ran into a pole, causing them to suffer a TBI. As agreed by the defense, the question in dispute was the extent of the limitations as a result of the accident. That matter resolved in the seven figures.
• Mediated a case regarding a plaintiff who fell from a ladder while installing a video system at the defendant's place of business. The plaintiff sustained a leg fracture requing an open reduction and internal fixation. The installation of the video system required a license; since the plaintiff had no license, he was presumed to be an employee of the defendant. The defendant had no workers' compensation coverage, resulting in a civil filing against him for being willfully uninsured. The defendant was being defended by his liability carrier under a reservation of rights. The case resolved with a mediator's proposal.
• Mediated a case involving a plaintiff who was doing some onsite air-conditioning maintenance. As the plaintiff climbed a fixed ladder, it fractured, causing the plaintiff to fall to the ground and sustain serious injuries, including a diagnosis of CRPS. The building owner was the main defendant with cross-complaints against the tenant and employer. In addition to the plaintiff, there was also an Intervenor since the accident was a 3rd party claim arising from a work-related accident. While the case did not resolve at the mediation session, after 6 months of follow-up, a settlement was secured in the seven-figure range. This was a global settlement, including the workers' compensation case as well as all cross-complaints.
• Mediated a case involving a family living in an apartment operated as subsidized housing. The family alleged habitability issues, the most serious of which were allegations that the family was exposed to lead. The child had significant lifelong injuries. The matter was resolved for a confidential sum.

Product Liability

• Mediated a case wherein the plaintiff put his hand into a molding machine without guarding to remove material. The incident led to a dispute about the normal use of the machine and a product liability suit.
• Mediated a case involving a plaintiff who was using an electrical testing device on a construction job. The plaintiffs' employer advised that the electricity was off and that he had tested it with a device. The electricity was, in fact, not off - the testing device failed to sound. The plaintiff got tossed off the ladder and sustained a compression fracture in his spine. The plaintiff had an open workers' compensation case with future payments, S&W, and future medical, which made credit an issue.
• Mediated a case involving a paraplegic plaintiff who had to use hoists to get around (two hoists by different manufacturers). The plaintiff alleged that a service person mixed up the two slings with different screw mechanisms and that over time they loosened, causing the plaintiff to fall and sustain a fracture with internal fixation.
• Mediated a case wherein a metal bench placed outside of a commercial business was not bolted in place. The plaintiff sat on one end, the bench tipped, causing the plaintiff to sustain injuries.

Workers Compensation

• Mediated a case involving a plaintiff who worked in a shop with woodworking equipment and was paid under the table. He was believed to be an independent contractor by the owner of the shop. The plaintiff sustained a very serious injury on the job. The shop had no workers' compensation insurance, making them a willfully uninsured employer. The plaintiff alleged that he met all of the requirements of an employee. The plaintiff pursued both the uninsured employers fund as well as the employer in Superior Court for Civil damages. The action resolves, settling all issues.
• Mediated a case involving a claimant who suffered traumatic injuries in an automobile-bicycle accident with an uninsured driver in the course and scope of his employment. The accident left the plaintiff unable to ever be fully independent, and there was a stipulation that he was 100% disabled. The mediation had issues related to the value of the Life Care Plan.
• Mediated a case involving a plaintiff who was seriously injured, losing his left arm while working on a punch press. The action was pursued against the employer under the punch press exception that allows a civil case. The machinery used was originally manufactured in the 1940's and resold to the plaintiff's employer from a vendor. It was alleged and disputed that the claim could be filed under the punch press exception and that guarding had been removed from the machinery. The case resolved for a confidential sum, preserving the plaintiff's rights at the workers' compensation appeals board with no credit asserted.
• Mediated a case regarding a plaintiff who filed a product claim as a result of an injury that occurred at her workplace. She also had an ongoing workers' compensation case that remained open. Liability was highly contested. The case was resolved with the workers' compensation carrier receiving a portion of the settlement, agreeing not to take credit against the plaintiff's future medical treatment. The workers' compensation carrier will take credit against future indemnity benefits.
• Mediated a case involving a plaintiff who was working as a day laborer for an unlicensed contractor who could not be located. The plaintiff sued the homeowners under the theory that the homeowner was an uninsured employer with a rebuttable presumption of negligence and a prohibition from asserting assumption of risk and comparative negligence. The mediation was pre-MSJ on these legal issues. The defendant was defended under a reservation of rights. The case was resolved by way of a settlement.

Wrongful Death

• Mediated a case regarding a wrongful death claim stemming from a shooting. The primary issues involved in the case were issues of coverage for the actions of the defendant. Participants of the mediation included the plaintiff's counsel, Cumis counsel, and personal counsel for the defendant, as well as coverage counsel. The case was resolved.
• Mediated and resolved a wrongful death case of a dependent adult suffering from schizophrenia who was hospitalized and under one-on-one supervision. The issue was whether the sitter remained as required by policy or left the decedent's bedside when the plaintiff turned blue and could not be resuscitated.