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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 auto accident case and its proceedings.)

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.

The Injury Claim

Plaintiff testified that her neck and mid-back began hurting the day after the automobile accident. Plaintiff initially sought treatment from her regular medical facility, the Doctors Medical Group, 2 days post-accident on February 9, 2005. She was seen by Sun Bhandiopathi, M.D. She reported that she had been rear-ended in a parking lot 2 days ago. She was having neck pain and back pain. Her pain was a 5 out of 10. Her cervical spine had tenderness and spasm and her lumbar spine had tenderness and some spasm with limited range of motion. Assessment was cervical and lumbar strain, mild, due to motor vehicle accident and she was prescribed Flexeril and she was advised to recheck back in one week.

Plaintiff then did not seek any other additional medical treatment for any alleged complaints from the accident until June 8, 2005, some 4 months post accident, when she saw Bobbi Chen, M.D. at the Doctors Valley Medical Group. She reported this was for followup of the motor vehicle accident of February 2005 and plaintiff reported she still had back pain. Plaintiff reported she was driving her car over a speed bump using a stick shift and she had slowed down and got rear-ended by a truck. She was wearing her seatbelt.

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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.)

SUMMARY OF ARGUMENT

The third, fourth and fifth causes of action of plaintiffs’ complaint are not appropriate in a birth injury case such as this one. The third cause of action, for negligent infliction of emotional distress by the mother, Melissa Green, is not proper because it is subsumed by her cause of action for negligence. The fourth cause of action by the father, plaintiff Paul Green, for negligent infliction of emotional distress, is improper because Mr. Green does not meet the requirements for recovery under either the direct victim theory or the bystander theory of NIED. Specifically, because Mr. Green admits that he did not become aware of any injuries suffered by the baby, indeed was not even concerned about injuries suffered by the baby, until he saw her come out, he cannot satisfy the contemporaneous awareness requirement for recovery for NIED. Finally, Mr. Green’ cause of action for loss of consortium fails because the only harm caused to their marriage as a result of the events in question is related to the child’s injuries, rather than injuries to his spouse, and damages for loss of filial consortium are not permitted in California.

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.

SUMMARY ADJUDICATION MUST BE GRANTED WHERE THE MOVING PAPERS ESTABLISH THAT THERE EXISTS NO TRIABLE ISSUE OF MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
California Code of Civil Procedure Section 437c provides that a motion for summary adjudication shall be granted if all the papers submitted show that there exists no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

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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.

HEALTH AND SAFETY CODE SECTION 7155.5(c) DOES NOT BAR ANY OF THE CAUSES OF ACTION CONTAINED IN PLAINTIFF’S COMPLAINT

California Health and Safety Code section 7155.5(c) states as follows:

(c) A hospital, physician, surgeon, coroner, medical examiner, local public health officer, enucleator, technician, or other person, who acts in accordance with this chapter or with the applicable anatomical gift law of another state or a foreign country or attempts in good faith to do so is not liable for that act in a civil action or criminal proceeding.

Defendant’s demurrer with respect to this section is based on misstatement of the allegations contained in Plaintiff’s complaint and a misreading of the statute.

Defendant ODA Did Not Act In Accordance With The Provisions Of The Chapter At Issue

The chapter at issue as referenced by the statute is the Uniform Anatomical Gift Act, (California Health and Safety Code section 7150 et seq.). Plaintiff’s complaint contains several allegations and causes of action which make it explicitly clear that Defendant Organ Donor Association and its agents, employees and co-conspirators did not act in accordance with the provisions of the Uniform Anatomical Gift Act ( UAGA ).

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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’ Memorandum of Points and Authorities in Opposition to Demurrer by All Defendants with Respect to the Brown Plaintiffs
INTRODUCTION

This is an action for elder abuse, fraud, wrongful death, unfair business practices and related causes of action against the corporate owners and managers of Universal Care’s Alzheimer’s and Dementia Care Division.

The Complaint states fifteen causes of action: Elder Abuse-Willful or Reckless Misconduct, Elder Abuse-Neglect, Treble Damages for Deceptive or Fraudulent Practices Against Elderly Persons, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligent Hiring, Screening, Retention, Fraud (Concealment), Unfair Business Practices, Disability Discrimination, and Breach of Contract. Plaintiffs seek compensatory damages, restitution, punitive damages, and treble damages.

As discussed below, plaintiffs concede that the Fourteenth and Fifteenth Causes of Action for Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing are subject to demurrer, and they ask leave to amend those causes of action. Plaintiffs also concede that David Brown, individually, has not stated a claim for Reckless or Intentional Infliction of Emotional Distress, and they ask leave to amend that cause of action. In all other respects, they argue that the demurrer should be overruled.

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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.)

Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

Defendants have failed to meet their initial burden of presenting admissible evidence to show that either one or more elements of Plaintiffs first cause of action cannot be established, or that there is a complete defense to that cause of action.

As Plaintiff’s First Amended Complaint ( FAC ) alleges, and the facts in this case support, Defendants engaged in consistent and malicious workplace harassment of Plaintiff and made defamatory statements against Plaintiff. As a result of this willful and malicious illegal treatment, Plaintiff suffered injury to his emotional well being and his professional reputation. Defendants argue that the treatment endured by Plaintiff and his resulting injuries are not sufficient to trigger protection under applicable anti-discrimination statutes such as the Fair Employment and Housing Act and anti-defamation statutes. Plaintiff disagrees with this contention and will present admissible evidence at trial to support Plaintiff’s positions. Therefore, disputed material facts exist in this case which preclude Defendants from succeeding on their Motion for Summary Judgment.

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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 auto accident case and its proceedings.)

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.

DEFENDANTS’ MANDATORY SETTLEMENT CONFERENCE STATEMENT
PARTIES
Plaintiff Alexa Brown is represented by counsel.

Defendants Randy Greene is represented by counsel.

INTRODUCTION

This matter arises out of a claim by plaintiff Alexa Brown (age 21) that she was rear-ended by a vehicle operated by defendant Randy Greene in the Community College parking lot in Sacramento, California, on February 7, 2005.

Defendant contends that the impact was minor and no injuries could possibly have occurred. Neither a traffic collision report nor college security report were completed regarding the accident.

FACTUAL BACKGROUND
The Accident
Plaintiff Alexa Brown (age 20 at the time of the accident) was driving a 2001 BMW 325i.
Defendant Randy Greene (age 21 at the time of the accident) was driving at 2001 Toyota Prerunner.

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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.)

PLAINTIFF’S OPPOSITION TO DEFENDANT ORGAN DONOR ASSOCIATION’S DEMURRER TO FIRST AMENDED COMPLAINT
INTRODUCTION

For sake of brevity, Plaintiff will not repeat all the facts alleged in the complaint. Defendants wilfully misled Plaintiff about the condition of her son, and fraudulently obtained her consent to donate his organs. Defendants ignored Robert Lee’s doctors, who said he should not be a candidate for organ donation, and then violated California law and illegally injected him with lethal doses of drugs in an effort to hasten his death. Defendant David Hill has been charged with three felony counts by the Sacramento County District Attorney. This civil action is filed against all those who are responsible for what happened to Robert Lee.

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 CAUSES OF ACTION AND RELATED FACTS ARE SUFFICIENTLY PLED

In a valiant effort to leave no stone unturned, Defendant ODA demurrers to literally every single cause of action contained in Plaintiff’s complaint. Each argument made by Defendant to each cause of action shares something in common; they all lack merit. Defendant’s demurrer should be overruled in its entirety.

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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.)

Motion for Summary Adjudication of Causes of Action and Damages Claims; Memorandum of Points and Authorities
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This is a medical malpractice case arising out of the birth of plaintiff Abbey Green on October 6, 2004. The essential facts are not in dispute: In the early morning hours of October 6, 2004, Abbey’s mother, plaintiff Melissa Green, who was 39 weeks pregnant at the time, woke up and reported that her water had broken, and then began to exhibit seizure-like behavior. She was transported by paramedics to Regional Medical Center, which at the time was owned by the moving defendant Hospital Systems, Inc., arriving at the hospital at approximately 2:50 a.m. Ms. Green was taken to the emergency room and then labor and delivery, where Abbey was delivered at 3:37 a.m., 47 minutes after her mother arrived at the hospital. Husband and father, Paul Green, was at his wife’s side throughout. Following delivery, Ms. Green experienced complications and had to be hospitalized for another five days, although she has since recovered completely.

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.

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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 personal injury case and its proceedings.)

B. THE JUDGE HAS REPEATEDLY ABDICATED HIS RESPONSIBILITIES AS JUDGE AND DELEGATED SOLE ARBITRARY AUTHORITY TO THE DEFENSE TO SCHEDULE THE DATES OF ALL OF PLAINTIFF’S DEPOSITIONS OF DEFENSE EXPERTS

Plaintiff hereby incorporates by reference thereto the Declaration of John J. Green in support of this objection.

On at least two occasions Plaintiff applied to the Court to required the Defendant to present himself and his medical malpractice experts for depositions in a more timely manner, instead of setting the depositions for weeks and months after the date set forth in Plaintiff’s notice. On each occasion Judge Smith absolutely refused to hear much less requested an explanation from defense counsel (Betty Howe) as to why the depositions had been scheduled so for out, but simply told her to get the best dates available and confirm them with Plaintiff’s counsel by 5 pm today . On each occasion defense counsel contacted Plaintiff’s counsel with the same dates that she had previously offered and Plaintiff’s counsel was thereby forced to accede to dates that pushed his discovery up to July 13 with a July 27 trial call.

Likewise at the July 5, 2005 hearing the Judge improperly violated Plaintiff’s constitutional rights to due process by first taking up defense counsel’s request that Plaintiff’s noticed depositions of treating experts be limited in time and that the location be changed. No prior notice had been given that any such request would be made, only a frivolous request to quash the depositions. The Judge ignored Plaintiff’s objection on due process grounds and without giving Plaintiff’s counsel an opportunity to object quickly agreed with an attorney for Dr. Brown that the latter’s deposition be taken at the latter’s office and limited to two hours.

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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 personal injury case and its proceedings.)

Evidence set forth in the declaration of John J. Green filed with this objection establishes that the Judge repeatedly and knowingly:

a. violated Plaintiffs’ rights due process;

b. violated controlling statute and case authority in an effort to frustrate and delay Plaintiff’s trial preparation.

A. INTENTIONALLY & REPEATEDLY VIOLATED CONTROLLING LAW IN ORDER TO FAVOR THE DEFENSE AND FRUSTRATE PLAINTIFF’S TRIAL PREPARATION

On July 5, 2005, the parties appeared before Judge Smith on Defendant White’s ex parte application to quash Plaintiff’s duly noticed deposition of treating medical malpractice experts, Drs. Mary Bean and Dr. Stanley Brown. Both of these experts were identified in the parties CCP §2034 exchange. CCP §2025(d) gave Plaintiff the right to depose these experts up to the 15th day prior to trial.

The Judge acknowledged the law and Plaintiff’s right to depose the experts, however, he then entertained a request by non-party expert, Stanley Brown’s attorney, to have the deposition at Dr. Brown’s office instead of at the court reporter’s office in downtown Sacramento where it was duly noticed. Plaintiff explained that in light of the fact that Dr. Brown’s deposition was going to be tape recorded and Dr. Jones’s deposition was scheduled before Brown’s and would conclude minutes before Brown’s was to begin that it would be logistically impossible to take Brown’s deposition at Brown’s office to begin at 11:30 am as noticed.

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