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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/wrongful death case and its proceedings.)

Defendants have a laundry list of objections to the fraud cause of action, but they cite few specific authorities. Here, plaintiffs have alleged specific misrepresentations relating to the services defendants would provide to Steven Brown, made to Christina Brown by defendants’ agents in order to induce the Brown family to have Steven live at Universal Care. Defendants are liable for false misrepresentations made to a person acting as an agent of the plaintiff. Mirkin v. Wasserman (1993) 5 Cal.4th 1082,1097.

Mr. Brown had dementia, and the complaint alleges facts showing that Christina was clearly acting as his agents when they spoke with Universal Care about whether that facility would be suitable for him. Defendants’ misrepresentations about the kind and level of care that they would provide for Mr. Brown are also actionable. Cf. Harazim v. Lynam (1968) 267 Cal.App.2d 127,131 (defendants’ misrepresentations about the future profits that will be made on a specifically described investment plan are actionable if the plan is not as advertised). The first amended complaint specifically alleges that the Brown family relied on the misrepresentations in having Steven become a resident at Universal Care.

The complaint alleges that Steven sustained damages as a result of the fraud (financial damages, in terms of monies paid, and emotional distress and physical pain and suffering, as discussed above in connection with elder abuse).

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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 workplace harassment/personal injury case and its proceedings.)

The California Constitution Applies to Discrimination Based on Sexual Orientation

California Courts have interpreted Article I, Section 8 of the California Constitution to include protection against disqualification from entering or pursuing a business, profession, vocation or employment because of sexual orientation. In In re Marriage Cases the Court found that, just as it is not constitutionally permissible to discriminate against ethnic minorities or women … an individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual’s legal rights. In re Marriage Cases (2008) 43 Cal. 4th 757, 822. Further, “this state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation.” In re Marriage, supra at 821-822.

The provisions of the California Constitution, Article I Section 8 are in place to protect individual’s basic civil right to access to non-discriminatory employment. In light of the evolution of our state’s understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights. In re Marriage Cases, supra at 823.

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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 wrongful death/elder abuse 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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S EIGHTH CAUSE OF ACTION FOR FRAUD IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant’s sole argument against the fraud cause of action is that specific facts were not pleaded. Plaintiff respectfully disagrees. Extensive factual allegations of fraud exist throughout the complaint.

Defendant’s demurrer on grounds of “uncertainty” lacks merit. First, Plaintiff’s complaint pleads numerous specific facts and allegations. [S]pecificity in the pleadings is not required because any doubts are more properly resolved through discovery. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) Furthermore, any specificity requirements are relaxed when, as here, the defendants necessarily have superior knowledge of the facts. (Committee on Children’s Television, Inc v. General Foods Corp (1983) 35 Cal.3d 197, 213-214.)

Fraud is either actual or constructive. (Cal. Civil Code 1571.) Plaintiff’s complaint alleges both.

California Civil Code section 1572 defines actual fraud provides as follows:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
3. The suppression of that which is true, by one having knowledge or belief of the fact;
4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.

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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 birth injury/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, U.C. Davis Medical Center, Mercy, or Sutter.

The Hearing on the Demurrers
At the hearing on the demurrers by co-defendants, the court engaged the parties in a discussion regarding the issues now raised in this motion. At the hearing, the court stated:

Now, I don’t know if anyone was negligent here or not, I’m not deciding the underlying factual case here. All I’m saying is are you saying a woman who has seizures, having problems with a birth, comes to the hospital, nurses want to get her treated, saying Let’s get her treated, then she goes in to have the delivery and because there is a certain time – it’s not a lot of time, I figure 30 minutes or something like that, the baby is, then, born blue with other problems that turn and result from a lack of oxygen and now is severely brain damaged, don’t you think that scenario is sufficient for a person to come to a reasonable conclusion that somebody did something wrong?

Right. Lack of the timely delivery produces a blue baby because most of the time, babies are not born blue and they are sufficiently oxygenated not to have brain damage. The fact that the baby is born blue, isn’t that circumstantial evidence that a person knows something is done wrong?

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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 car accident/personal injury case and its proceedings.)

California Vehicle Code §21801 states in relevant part:

(a) The driver of a vehicle intending to turn to the left or to complete a U-turn upon a highway, or to turn left into public or private property, or an alley, shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn or U-turn can be made with reasonable safety.

Even in the unlikely event that the traffic signal for Plaintiff had changed from green to yellow and then to red after Mr. Owen had entered the intersection, Defendant would still be entirely responsible for the collision and injuries. Vehicle Code §21451 states in relevant part:

(a) Any driver, including one turning, shall yield the right-of-way to other traffic and to pedestrians lawfully within the intersection or an adjacent crosswalk.

The finder of fact is likely to conclude that Mr. Owen entered the intersection lawfully, and at a reasonable speed. And that Defendant, either turning from a non-turning lane or from the left turn pocket, saw a gap in traffic created by Mr. Owen maintaining a reasonable following distance behind the vehicle in front of him, made an ill fated attempt to squeeze through this gap.

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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/wrongful death case and its proceedings.)

PLAINTIFFS’ SIXTH CAUSE OF ACTION FOR NEGLIGENT HIRING, SUPERVISION, AND RETENTION OF REBECCA COCKRILL STATES A CLAIM.

Liability for negligent hiring, training, retention, or supervision is based on the principle that an enterprise should bear the loss for its negligence in hiring, training, or retaining unsuitable employees. Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339-1340. See also Restatement of Agency (2nd) Section 213 (employer liable to third parties for injuries caused by inadequate training and supervision of its employees).

Here, with respect to Steven Brown, the first amended complaint alleges that defendants owed him a duty of care in connection with the managers they hired and retained to run the facility, based on their special relationship with him. Mr. Brown paid defendants more than $41,000 to provide care for him, which defendants did not provide, by reason of Ms. Cockrill’s mismanagement of the Universal Care facility. This is an economic loss sufficient to show damages to Mr. Brown on this cause of action.

Plaintiffs Christina and David Brown concede that they as individuals, as opposed to successors in interest, have not stated a cause of action for negligent hiring.

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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/wrongful death case and its proceedings.)

PLAINTIFFS’ FOURTH CAUSE OF ACTION STATES CLAIMS FOR RECKLESS OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AS TO STEVEN BROWN

The elements of the tort are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the Claimant’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. KOVR-TV, Inc. v. Superior Court (1995) 31 Cal. App.4th 1023, 1028, 37 Cal.Rptr.2d 431.

The tort does not require an allegation of an intention to cause harm. A reckless disregard of the probability of causing harm is adequate. [I]t is not essential to liability that a trier of fact find a malicious or evil purpose. It is enough that defendant “devoted little or no thought” to the probable consequences of his conduct. KOVR-TV, Inc., supra, 31 Cal.App.4th at 1031-1032.

Whether conduct is outrageous is a question of fact for which the law does not provide a bright line rigidly separating that which is actionable from that which is not. Indeed, it generally hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical. Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.

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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 wrongful death/elder abuse 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, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S SIXTH CAUSE OF ACTION FOR NEGLIGENCE IS PROPERLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS

Defendant’s own arguments are self-defeating, and indicative of exactly why the demurrer should be overruled. On one hand, Defendant argues in its demurrer that “ODA cannot practice medicine” and therefore should not be subject to the seventh cause of action for medical malpractice. On the other hand, Defendant argues that the negligence claims are duplicative and thus should be stricken without leave to amend. Defendant cannot have it both ways. Defendant cannot argue that (a) it should be released (at pleading stage) from medical causes of action, and (b) it should be released from negligence causes of action because they are duplicative.

Plaintiff, on the other hand, is allowed to plead it both ways. In general, a plaintiff is entitled to plead alternative theories and even inconsistent allegations. (See Adams v. Paul (1995) 11 Cal.4th 583, 593.) Given that Plaintiff alleges that Defendant ODA was directing Doctors and Nurses, and that it did in fact employ medical professionals and direct their work, ODA is a proper defendant in both causes of action.

Defendant’s concerns can be dealt with in discovery. Its demurrer should be overruled.

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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 birth injury/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, U.C. Davis Medical Center, Mercy, or Sutter.

Hurlbut v. Sonora Community Hospital
This is not the first time this issue has come up in the context of a birth injury case. For example, in Hurlbut v. Sonora Community Hospital, supra, 207 Cal.App.3d. 388, the undisputed facts established that the father was present during labor, during which time he became concerned about changes on the fetal monitor and possible harm to the baby. Even though the father was concerned about his child, and suffered emotional distress as a result, the court denied NIED recovery because he did not observe the consequent harm. As in our case, the combination of observing evidence of complications during labor and actual harm to a baby, discovered at the time of delivery, was found to be insufficient. The Hurlbut court stated:

The most that can be said is that certain experiences allow the parents to “deduce that some problem or injury had or would damage their child.” There was no direct perception of injury. There is no evidence of any contemporaneous awareness that defendant’s conduct was the cause of the perspective harm. It was not until after the fact that observations of the infant confirmed some injury.

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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 car accident/personal injury case and its proceedings.)

Mandatory Settlement Conference Statement of Plaintiff Michael Owen
FACTS

This matter arises from negligence of Defendant Dina White in causing an automobile accident on January 22, 2006, at the intersection of University Avenue and Green Street in the City and County of Sacramento. Plaintiff Michael Owen was the restrained driver of a 1998 B.M.W. 528i proceeding eastbound on University Avenue. He was in the process of crossing the intersection of Green on the green light. He was free of any back and neck pain.

Defendant Dina White had been proceeding westbound on University Avenue in her 2004 Audi Quattro, and made a sudden left turn, directly into the path of Mr. Owen’s vehicle. Ms. White said that she was proceeding slowly. Mr. Owen said that she was flying in such a manner that Mr. Owen was unable to avoid the inevitable impact.

Mr. Owen, now 58, is a former commercial airline pilot, and is now a limousine driver. In this accident he sustained neck and back injuries that can only be alleviated by surgery. Mr. Owen has also lost income because the constant pain from the accident injury makes it impossible to drive as many hours as he did before the accident, or to lift heavy luggage in and out of the vehicle.

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