| by

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

DEPENDENT ADULT CLAIMS MUST BE PLED WITH PARTICULARITY

Even under general pleading requirements, pleadings must allege facts not just conclusions, and mere contentions, deductions and conclusions of law or fact need not be accepted as true. Ankeny v. Lockheed Missiles & Space Co (1979) 88 Cal.App.3d 531, 537; Serrano v. Priest (1971) 5 Cal.3d 584, 591. Moreover, a complaint, to be sufficient, must contain a statement of facts which, without the aid of other conjectured facts not stated shows a complete cause of action. Hawkins v. Oakland Title Ins. Guaranty Co. (1958) 165 Cal.App.2d 116, 122. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In addition, claims under Welfare and Institutions Code § 15657 are statutory causes of action, and they must be pled with particularity. In Covenant Care v. Superior Court 32 Cal.4th 771, 790, the Supreme Court states that the general rule requiring statutory causes of action to be pled with particularity applies to claims under the dependent adult statutes. The court cites to Lopez v. South California Rapid Transit District (1985) 40 Cal.3d 780, 795. In Lopez, the court stated the rule and concluded that to state a cause of action … every fact material to the existence of its statutory liability must be pleaded with particularity. Id. [Emphasis added.] Lopez in turn cites to Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 which explains in part:

Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.

Continue Reading ›

| by

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

The civil remedies set forth in Welfare and Institutions Code §15657 read as follows:

Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In Delaney v. Baker (1999) 20 Cal.4th 23, 31, the court defined the reckless state of mind necessary to establish a cause of action under the elder abuse statutes:

“Recklessness” refers to a subjective state of culpability greater than simple negligence, which has been described as a deliberate disregard of the high degree of probability that an injury will occur (BAJI No. 12.77 [defining recklessness in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions but rather rises to the level of a “conscious choice of a course of action … with knowledge of the serious danger to others involved in it.” (Rest.2d Torts, § 500, com. (g), p. 590.) n. 5

Continue Reading ›

| by

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

APPLICABLE LAW
C.C.P. § 430.10 sets forth the grounds for demurrer:
The party against whom a complaint … has been filed may object, by demurrer … to the pleading on any one or more of the following grounds…
(d) There is a defect or misjoinder of parties.
(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The Pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

C.C.P. §§ 435-436 permits the court to strike improper matters contained in the complaint. Section 435 and reads in part as follows:

(b)(1) Any party within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof…

Section 436 provides in part:
The court may, upon a motion made pursuant to Section 435…
(a) Strike out any irrelevant, false or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn …in conformity with the laws of this state, a court, or an order of the court.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is also worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

CALIFORNIA HAS NOW REJECTED THE “SAVED COST OF NECESSITIES” ARGUMENT; THE “LOST YEARS” AWARD SHOULD NOT BE REDUCED BY THE “SAVED COST OF NECESSITIES”

For years, the law on the “lost years” exception to periodic payments judgments is essentially controlled by two (2) California Cases, Fein and Hurlbut. As noted above, these cases failed to place any limitation or restrictions upon this exception, even though such issue was squarely before the court on both occasions. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Now in August 1999, the First District has ruled on the issue of saved costs of necessities. In Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, the defense argued that even if [Plaintiff] was entitled to damages for the loss of his future economic benefits [the ‘lost years’ damages], the future economic damage award should have been reduced to account for the [Plaintiffs’] personal consumption during the lost years. The defense “conceding that there is no California authority on point,” argued “policy.” (Id. at p. 174.)

Both the trial court and the Court of Appeal rejected the policy argument:

Continue Reading ›

| by

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

DEFENDANTS’ TRIAL BRIEF
INTRODUCTION

Plaintiff Gabrielle Hill’s (“Hill”) Complaint never should have been filed. Though she has sued her gay, former friend and boss defendant Randy Lee (“Lee”) and his company, Randy Lee Artists Collective (“RLAC”), for sexual harassment based almost entirely on Lee’s use of vulgar speech, the evidence shows that his speech was not directed at or about her, that Lee was Hill’s close personal friend, that she had expressed love for Lee and referred to him as “sweetie,” “doll,” and “sunshine,” that she regularly socialized and vacationed with him, and that she herself used vulgar language (including the words “cunt,” “cock,” and “bitch”), and Hill talked about sex (and her boyfriend’s penis size) around Lee (and even sent Lee a video of completely naked men dancing with their pensises exposed). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Based on these facts and many others like them – most of which are undisputed – Hill will be unable to establish each of the necessary elements of a claim for unlawful harassment: (1) that she was subjected to unwelcome and offensive speech or conduct, (2) because she is a woman, and (3) that such speech or conduct was so severe or pervasive that it altered the conditions of Hill’s employment and created a hostile work environment. Furthermore, to the extent that Hill seeks to base her claim on speech that was not even directed at her — for example, Lee’s conversation with his female friends — her claim must be dismissed based on the right of free speech guaranteed Lee by First Amendment of the United States Constitution and its California counterpart, article I, section 2 of the California Constitution (hereafter collectively the “First Amendment”).

Hill’s other claims fair no better. Hill cannot prove gender discrimination without evidence that she suffered an adverse employment action because of her gender. If anything, the evidence shows that Hill was treated better than her male co-workers.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

DR. BLACK’S RELIANCE ON CASES AFTER JUDGMENT OR VERDICT IS MISPLACED – PLAINTIFF NEED NOT PROVE THAT HE SHOULD BE AWARDED PUNITIVE DAMAGES AT THE PLEADINGS STAGE OF THE LITIGATION

Dr. Black relies on Ebaugh v. Rabkin, (1972) 22 Cal.App.3d 891, which is not applicable to plaintiff’s First Amended Complaint. Ebaugh concerned the reversal of a jury’s award of punitive damages because the evidence was insufficient to support the verdict for punitive damages against the employee and employer. There was also prejudicial error because one of the jury instructions permitted punitive damages against the employer if it found the employee was acting in a willful, reckless or wanton manner without regard to the employer’s conduct in directing or ratifying the employee’s actions. Id. at 895-896. Ebaugh does not apply to this stage of the litigation since it was an appeal of a jury verdict at trial. The standard for meeting the burden of proof to overturn a jury verdict is certainly different from the notice pleading requirements of California law. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dr. Black cites the following cases, all after judgment, verdict or nonsuit, which do not support granting her motion to strike since the cases do not concern the pleadings stage of litigation: American Airlines, Inc. v. Sheppard, Muffin, Richter & Hampton (2002) 96 Cal.App.4th 1017; Cloud v. Casey (1999) 76 Cal.App.4th 895; Tomaselli, 25 Cal.App.4th 1269; Mock v.-Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306; Roth, 185 Cal.App.2d 676; Fick, 98 Cal.App.2d 683; Spencer v. San Francisco Brick Co. (1907) 5 Cal.App. 127.

Continue Reading ›

| by

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)

DEFENDANT XYZ HOSPITAL’S DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTFFS’ COMPLAINT FOR DAMAGES
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF XYZ HOSPITAL’S DEMURRER AND MOTION TO STRIKE
INTRODUCTION

Plaintiff’s complaint arises out of the care and treatment provided to Donald Lee at XYZ Hospital and at a skilled nursing facility, Universal Hospital. The complaint alleges causes of action for medical malpractice, wrongful death and a cause of action under the dependent adult statutes. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Dependent adult claims must be pled with particularity. Plaintiff has failed to properly plead facts sufficient to show reckless and egregious abuse on the part of an employee of XYZ Hospital, or facts to show wrongful conduct on the part of any officer, director or managing agent of the Hospital which must also be alleged to state a claim against the Hospital under Welfare and Institutions Code § 15657 and under Civil Code § 3294. The Hospital therefore demurs to the dependent adult claim and moves to strike the § 3294 punitive damage claim.

Continue Reading ›

| by

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

It is also worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

As such, with trial likely to occur in the next six to nine months, defendants have been severely prejudiced by plaintiffs’ inappropriate conduct including the following: (1) defendants have been unable to ascertain plaintiffs’ specific contentions/allegations; (2) defendants have been unable to identify subsequent treating doctors so that they may subpoena such records, keeping in mind that it will take an additional 30-45 days to obtain these records once subpoenas are issued; and (3) while defendants can retain, at least, some experts, they will be unable to obtain complete expert opinions until the experts are allowed to review all records. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Code of Civil Procedure §36 provides, in pertinent part, the following:

(b) A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under the age of 14 years unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision.

Continue Reading ›

| by

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

Further, in the case Cottle v. the Superior Court of Ventura County (1992) 3 Cal.App.4th 1367, the Court of Appeal denied the plaintiff’s petition for a writ of mandate seeking review of the order of the trial court which required plaintiff to produce evidence establishing a prima facie claim for personal injury. Accordingly, the plaintiffs in Cottle were required to show that they could sustain a prima facie case against defendants prior to the start of trial. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

In this matter, Defendants contend that Plaintiff is unable to sustain her cause of action against Defendants because Plaintiff lacks the required standard of care expert to prove her case of professional negligence. Accordingly, should the Court be disinclined to grant Defendants’ motion to preclude standard of care testimony by Dr. Strong, Defendants respectfully request that a Cottle hearing or a 402 hearing be held to determine the qualification of Dr. Strong or Plaintiff’s ability to sustain her case against Defendants, prior to jury empaneling in this matter.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this automobile accident case could just as easily involve any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, or Sutter.

PUNITIVE DAMAGES ARE PERMISSIBLE IN THIS NEGLIGENCE ACTION

The California Supreme Court has determined there are circumstances under which punitive damages can be awarded in unintentional tort actions. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004. In particular, the Supreme Court has upheld punitive damages in cases of negligent driving. See Peterson v. Superior Ct. (1982) 31 Cal.3d 147; Taylor v. Superior Ct. (1979) 24 Cal.3d 890, 894.

In Taylor, the Supreme Court explained the availability of punitive damages to plaintiffs in motor vehicles tort actions:

A conscious disregard of the safety of others may constitute malice within the meaning of Section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully [sic] and deliberately failed to avoid those consequences. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Id. at 895. (emphasis added.) Taylor and Peterson are directly applicable to this case. Plaintiff’s prayer for punitive damages, which is based on Dr. Black’s awareness of the probable dangerous consequences of operating a vehicle under fatigue and while asleep and her actions of deliberately failing to avoid the dangerous consequences by driving in a fatigued state, is undeniably supported by current California law.

Continue Reading ›