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

NATURE OF THE CASE

The plaintiff is seeking damages for the injury of the first cause of action for discrimination in hiring. The plaintiff therein sites sufficient facts and unambiguously includes each of the elements for the cause of action. The plaintiff is a protected applicant for employment and the defendant is a covered employer under the Cal. F.E.H.A., Gov. Code sec. 12900 et seq. The plaintiff states the facts of the adverse treatment of a supervisor of the defendants and the support of those acts by the Executive Director and a V.P. of the Board of Directors.

The plaintiff enquired as to, and discloses the discriminatory intent of the hiring policies. The plaintiff exhausted every administrative remedy not only by the powers of the Cal. D.F.E.H., but also in appealing to the public entities that fund as an independent contractor the defendants, the County of Sacramento, and the City of Sacramento.

The plaintiff has made a prima facie case in that she has clearly stated that she is a member of a protected class, qualified for the jobs offered and denied to her, suffered adverse action, and learned from the defendants on what basis others got the job she was seeking.

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

POINT AND AUTHORITIES

Defendant Has the Burden of Persuasion That There Is No Triable Issue of Material Fact, and That He Is Entitled to Judgment As a Matter of Law.

A defendant moving for summary judgment has the burden of presenting facts to negate an essential element of each cause of action or to show there is a complete defense to each cause of action. [Code Civ. Proc., § 437c, subd. (p)(2).]

In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, the California Supreme Court clarified the parties’ burdens on a summary judgment motion as follows:

[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law…. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof…. A defendant bears the burden of persuasion that “one or more elements of the cause of action” in question “cannot be established,” or that “there is a complete defense” thereto.
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at p. 850, fns. omitted; Code of Civil Procedure § 437c, subd.(o)(2).)

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

LIABILITY

Liability is clear. During the course of the cholecystectomy and the subsequent treatment by the defendants in this matter, plaintiff sustained the following injuries: 1) laceration of the left iliac vein, 2) laceration of the mesentery, 3) small bowel perforation, 4) a posterior laceration of the bifurcation of the abdominal aorta, and 5) an anterior wall laceration of the left iliac vein. These iatrogenic injuries (instrument caused) do not occur absent someone’s negligence.

Although all the defendants in this case deny their own culpability for injuries to the aorta and adjoining iliac vein, each admits that all injuries were iatrogenic and they had to be caused by one of them. As set forth more fully in the motion filed concurrently herewith, plaintiff is entitled to a res ipsa loquitur presumption and the burden must shift to the defendants to produce evidence which establishes they did not cause one, or any, of plaintiff’s injuries.

THE SECOND ACT OF NEGLIGENCE IS A SECOND CAUSE OF ACTION
Although plaintiff suffered multiple injuries when Dr. Green placed the original trocar in the iliac vein, the mesentery and the small bowel, which commutatively giv e rise to one general damage award of the $250,000 MICRA cap, Plaintiff suffered two totally separate injuries from potentially separate acts of negligence giving rise to a second and third $250,000 cap. Indeed had Plaintiff so chosen he could have brought a separate lawsuit for the injury to his abdominal aorta and for the left iliac vein. See (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848,1854. Each time a separate and distinct wrongful act causes this injury a separate cause of action arises because a separate right has been violated.)

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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/personal injury case and its proceedings.)

The court very effectively discusses the proximate causation requirement which Plaintiffs must meet: We find persuasive on this issue the following discretion and standard from Cooper v. Sisters of Charity of Cincinnati, as set forth in the brief of respondents:

Traditional proximate cause standards require that the trier of facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act in the absence of any intervening cause. Lesser standards of proof are understandably attractive in malpractice cases where physical well-being and life itself are subject to litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that an action for wrongful death, an injured person would be compensated for the loss of any chance of survival regardless of the remoteness.

However, we have trepidations that such a rule would be so loose, that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based on proof of causation by evidence not meeting the standard for probability, we are not persuaded by their logic … we consider the better rule to be that in order to comport with the standard of proof and proximate cause, plaintiff in a malpractice case must prove that defendant’s negligence, and probability, proximately caused the damages.

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

Plaintiff Judy Brown’s Memorandum of Points and Authorities in Opposition to Defendant Universal Mall’s Motion for Summary Judgment
STATEMENT OF FACTS

Plaintiff Judy Brown and her husband, Kenneth, residents of Sacramento, California, went to Universal Mall, a shopping center located in Sacramento, California, on March 14, 2007. After parking their car in the “B” lot of the Mall, they entered the Macy’s store. After approximately two hours of shopping, Plaintiff’s husband, Kenneth, decided to return to the car to wait for his wife. When Plaintiff Judy Brown finished her shopping, she exited Macy’s, from the Home Furnishings door, and began walking on the sidewalk adjacent to the store. While walking, she tripped and fell because of a defect in the sidewalk, to wit: a gap and upraised portion on the sidewalk. Photographs depicting the gap and upraised portion of the sidewalk were taken by her husband, Kenneth, and are attached to his Declaration as Exhibits 1 and 2, and are incorporated herein.

At her deposition, Plaintiff Judy Brown mistakenly testified that the upraised portion of sidewalk was one-half inch in height. It’s height is actually 1″ high (See Plaintiff’s Declaration, at Paragraph 6; also see photographs attached as Exhibits 1 and 2 to the Declaration of Kenneth Brown).

Further, Plaintiff Judy Brown was not asked any questions about the “gap” in the pavement

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

Defendant ABC Hotel’s Trial Brief
INTRODUCTION

Plaintiff was talking to her friend and admittedly not paying attention to where she was walking when she allegedly tripped over a stack of luggage in her suite at the ABC Hotel. Now, she seeks to blame the Hotel for her injuries that allegedly resulted from that fall.

Plaintiff and her husband flew into town with another couple, via private jet, during Labor Day weekend, 2005, to celebrate plaintiff’s 40th birthday. The two couples planned to share a suite for one night at the ABC Hotel. While waiting for their suite, they had food and drinks at a Hotel bar and swam in the pool.

After arriving at their room later that day, plaintiff was speaking with her friend in the bedroom. Plaintiff stood closest to the doorway separating the bedroom from the common area, with her back to the common area as she was facing toward her friend. At some point, she began to leave the conversation and blindly stepped backward toward the common area. It was then that she allegedly tripped over seven to eight pieces of luggage in the common area of the suite.

ABC Hotel is not responsible for plaintiff’s fall or her injuries. Seven or eight pieces of black luggage on the floor of the hotel suite does not constitute a dangerous condition.

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

In Mock v. Mich. Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 328, an insurance bad faith case, the court said the following with regard to punitive damages:

Even before the 1987 amendments, the courts articulated a standard for the proof of malice where, as here, no intent to harm is claimed. Such malice “implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others.” In Dean Prosser’s words: “Where the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action punitive or exemplary damages …. Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.”

CACI 3540 defines despicable conduct as “… conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.” Again, this also has to be shown by clear and convincing evidence.

For plaintiff to prevail there must be evidence that the defendants’ employees, acted with malice as defined by Civil Code §3294, and that said malice was ratified by a managing agent, or that the managing agents themselves acted with malice. Further, plaintiff’s must have evidence that rises to the level of clear and convincing evidence. For corporate defendants like Universal and MC, the evidence must show that a managing agent of the defendant is culpable. In White v. Ultramar (1999) 21 Cal.4th 563, 577 the Supreme Court said:

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

Paragraph 32 explicitly asserts that the negligence of the defendants, therefore including John Black, was the legal and proximate cause of harm to Kathy White.

Paragraph 33 sets forth all that is needed to defeat this demurrer in a single paragraph, asserting a duty of care, breach of that duty of care, therefore negligence, causation and damages, all as to defendants, therefore including John Black.

Paragraph 34 sets out an explicit assertion of negligence per se against defendants, therefore including John Black.

Paragraph 35 asserts causation and damages against defendants, including therefore John Black

Paragraph 36 sets out the nature of the damages caused by negligence of defendants, including therefore, John Black.

Is this enough to defeat the demurrer? Statute, case law, and commentary all support that conclusion.

As to the general negligence claim, it is black letter law that “Negligence claims can be pleaded generally, without specifying the particular breach or the manner in which the accident occurred.” (The Rutter Group, California Practice Guide, Civil Procedure Before Trial, Section 6:129). Plaintiff need only allege that the defendant owed a duty of care to the plaintiff, that the duty was breached and that breach was the cause of the damages sustained by the plaintiff.

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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 vehicle accident/medical malpractice case and its proceedings.)

CAUSATION MUST BE PROVEN WITHIN A REASONABLE MEDICAL PROBABILITY

As the court is aware, in personal injury cases, the plaintiff must prove that the defendant’s culpable conduct was the proximate cause of the Plaintiff’s injuries. “Proximate” or “legal” cause adds to the requirement that the defendant’s culpable conduct be the actual cause of the plaintiff’s injury. Accordingly, the Plaintiff should be precluded from recovery when the causal relationship between the defendant’s conduct and the plaintiff’s injury does not justify imposing tort responsibility on the defendant.

To that end, the law in this state is well settled that in a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony. Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396,402. Mere possibility alone is insufficient to establish a prima facie case. Id. at 403. To that end, there can be an infinite number of causes and circumstances which can produce injury or disease, however, a possible cause only becomes probable when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of Defendants’ action. Bromme v. Pavitt (1992) 5 Cal.App.4th 1487.

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

PLAINTIFF DID NOT INTEND TO INCLUDE NON-PHYSICIAN JOHN BLACK AS A DEFENDANT IN THE MEDICAL MALPRACTICE CAUSE OF ACTION, AND DO NOT OPPOSE THE DEMURRER AS TO MR. BLACK FOR THAT CAUSE OF ACTION ALONE

The phrase “as to all defendants” referring to the medical malpractice cause of action should have been changed when the second amended complaint was filed, so as to separate the health care providers, to whom the first cause of action is addressed, from the ATV renters who failed to show a minor how to use their vehicles, to whom the second cause of action is addressed. We do not intend to show that Mr. Black was a stealth physician or that his duty to Kathy White was that of doctor to patient. We do not oppose this demurrer as to that first cause of action.

We also note in passing that this could have been cleared up with a phone call or any form of meet and confer, without wasting the court’s time.

GENERAL NEGLIGENCE IS SUFFICIENTLY PLEADED AS TO JOHN BLACK
Plaintiffs’ second cause of action begins with Paragraph 27, and applies explicitly to defendant John Black and Defendant BJ’s ATV Rentals. There are two defendants to whom this cause of action applies. Therefore, the plain meaning of an assertion that refers to “defendants” in the plural includes assertions directed to both of these two defendants. This includes John Black.

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