Wednesday, June 4, 2014

Treatment, Impact, What's the Big Diff...

Rosenfeld v. Abraham Joshua Heschel Day Sch., Inc., No. B239581 (D2d3 May 28, 2014)

Suppose you have a statute that has multiple theories of recovery. If you rely on one in your complaint, can you prove up the other when it comes time to try the case? The court here says no. Plaintiff pleaded a disparate treatment age discrimination case. But at trial, she started to argue about disparate impact. The trial court shut that down, and the court of appeal affirms.  This is useful precedent for defense lawyers who litigate cases under laws such as Business & Professions Code § 17200, where a single statute provides a basis for three different theories of liability for which the proof can vary greatly.

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