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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case 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 personal injury case and its proceedings.)

The Notice was submitted on February 8, 2001, and was incorporated into the Plan approved by the Bankruptcy Court. The Supplement attached to the Notice lists the specific steps the various entities took during the reorganization process. With regard to the California properties, the following reorganization took place, which can be traced in Item l3 as follows:

B. 3: AMS Properties, Inc., which operated three of the defendant dbas, merged with and into GCI-Wisconsin Properties, Inc., a subsidiary of SunCare, Inc., with GCIWisconsin Properties, Inc. being the survivor after the merger.

D. 1: SunCare, Inc. converted from a C corporation to a Delaware limited liability company and changed its name to SunCare, LLC.

These additional documents clearly establish the relationship between the Ocean Group and SunCare, LLC, and its various dba’s, the named defendants in the present law suit.

The reorganization process, as outlined in the Plan Documentary Supplement, is further authenticated by the Declaration of Daniel Smith, a Senior Vice President and Associate Counsel for Ocean Healthcare Management Company, a wholly owned subsidiary of Ocean Health Care, Inc., previously known as Ocean Post-Acute Network, Inc.

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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 employment discrimination/personal injury case and its proceedings.)

DAMAGES

Had Ms. Church remained at Kaiser she would have received increasing salary (including increased salary from promotions which were denied to her by her second level supervisor, Charles Smith and her quasi-supervisor, David Black, for thirteen (13) years until retirement with an average increase of approx. 3 %, totaling $1,262,776. Had Plaintiff received promotions, the total would be $1,528,201 assuming a salary of $95,000 a year in 2006, $1,608,632 assuming a salary of $100,000 a year in 2006, and $2,010,791 assuming a salary of $125,000 in 2006. While Ms. Church is currently working as a temporary employee for Bayer, through an agency, this is not comparable employment. She is paid $30 an hour with no benefits. Ms. Church’s many other attempts at gaining employment have been unsuccessful.

Benefits lost by Ms. Church as a result of the termination are:

1) Medical and dental benefits

2) Flexible employee life ($500,000 death benefit)

3) Accidental Death Benefit
4) Long-term Disability Benefit

5) Three years build up of contribution to sick time and vacation which increases with time served.

6) The contribution to the time served would have resulted in medical benefits for life; fifteen (15) years of service gains towards retiring-employee medical benefits for life.

7) The ability to contribute to a 401K that Kaiser matched .50 on the dollar.

8) Two $1,000 reimbursements for education.

9) Bonuses of 3-5% of an employee’s gross salary or $2,355 – $3,925, increasing per year of service.

In addition, Ms. Church has suffered substantial emotional distress.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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 bus accident/brain injury case and its proceedings.)

PROCEDURES FOR GRANTING A NEW TRIAL

In listing the grounds for granting a new trial, the court should parallel the language of Civil Code of Procedure section 657 as closely as possible. (Mercer v. Perez (1968) 68 Cal.2d 104, 111.) The court must specify in writing the grounds for its decision to grant a new trial, either by minute order or by order signed by the court and filed by the clerk. (Code Civ. Proc. §§ 657, 660.)

In addition to specifying the grounds supporting its decision, the court must specify its reasons for granting a new trial on each of the grounds stated in its order. (Code Civ. Proc. § 657; Mercer v. Perez, supra, 68 Cal.2d at 111.) The specification of reasons must be in writing, oral statements will not suffice. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 62.)

If the court’s specification of reasons is not contained in the order granting the new trial, the 10-day period for filing a separate specification of reasons runs from the date the minute order granting a new trial is entered (even if written order is later signed and filed). (Code Civ. Proc. § 657.) The 10-day period may extend beyond the 60-day period for ruling on a new trial motion. (Code Civ. Proc. §§ 657, 660.)

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case 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 personal injury case and its proceedings.)

(C) Sufficient Documentation of the Bankruptcy Reorganization Exists to Support Defendants’ Argument for Striking All Restitution Claims Arising Out of Conduct Preceding the Confirmation Date of the Second Amended Joint Plan of Reorganization

As noted in Defendants’ moving papers, Ocean Health Care, Inc., Ocean Post-Acute Network, Inc., Ocean Health Group, Inc., and their respective debtor affiliates, filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code on January 18, 2000. Ocean Group confirmed the Second Amended Joint Plan of Reorganization for the Ocean Post-Acute Network, Inc., the Ocean Health Group, Inc., and Their Respective Debtor Affiliates Dated February 1, 2001 (as Or L Modified on March 25, 2001 for Confirmation) (“the Plan”) pursuant to confirmation orders dated April 3, 2001.

On May 13, 2001, the effective day of the Plan, the Ocean Group, its debtor affiliates and all successors in interest, received the discharge injunction imposed by Section IX.D of the Plan, the Bankruptcy Court’s Findings of Fact, Conclusions of Law, and Order Confirming Debtors’ Joint Plan of Reorganization.

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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 employment discrimination/personal injury case and its proceedings.)

EQUAL PAY ACT CLAIM

While Ms. Church worked for Kaiser, she suffered wage discrimination as defined by the state and federal Equal Pay Acts. Ms. Church’s salary was very low for her position. Many others in her position were managers but she was refused that title. Plaintiff alleges that the male hired in her prior position shortly after she asked to be transferred to Sacramento was paid $6,000 more a year than she was in that same position.

Kaiser argues that the reason for the pay discrepancy was the male employee’s greater qualifications but Ms. Church will testify that the qualifications which actually applied to the job in question were equal; it was the pay that was different.

CONVERSION CLAIM

At the time that Ms. Church was terminated, she was not permitted to take numerous binders of material which belonged to her. This property consisted of numerous documents regarding her personal research into compliance issues and represented numerous hours of personal work. Ms. Church later learned that Mr. White callously discarded this personal property belonging to her. In his deposition Mr. White suggested that the material might still exist in his office but Kaiser still has not returned the binders to Ms. Church. The discarding or wrongful retention of Ms. Church’s material without permission constitutes conversion:

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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 bus accident/brain injury case and its proceedings.)

Nonetheless, Dr. Sutton, plaintiff’s vocational rehabilitation expert, testified concerning plaintiff’s future earning capacity and potential lost earnings based on the unsupported assumption that plaintiff would have returned to work full time in the CAD industry. Dr. Sutton’s conclusions regarding plaintiff’s potential future earnings a CAD drafter, placing her in the 90th percentile in terms of salary, were based on speculation and conjecture. Moreover, Dr. Sutton made these assumptions about plaintiff’s future salary without knowing or evaluating what her salary rank had been the last time she was employed in the AutoCAD field. While plaintiff returned to school after being laid off from her position as a drafter to study English and accounting, she had not formally upgraded her CAD certifications.

Therefore, Dr. Sutton’s opinions regarding plaintiff’s potential future lost wages were based on pure speculation and cannot serve as a basis for the jury’s award. The evidence was not sufficient to support that plaintiff would have been able to successfully change jobs and would have advanced to the position of a senior CAD drafter.

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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.)

There cannot be a clearer display of bias than Judge Smith’s refusal to grant any relief to Plaintiff from Defendant’s wrongful tampering with Plaintiff’s medical malpractice expert.

In addition, he has violated Plaintiff’s constitutional rights to due process by issuing orders of subjects that were not properly before him by way of noticed motion. For example, at the 7-05-05 ex parte hearing even though no party had given prior notice of any intent to request that Plaintiff’s noticed depositions of treating experts Brown and Jones’s depositions be limited in time and at a different location, the Judge entered such an order and in doing so knowingly and deliberately deprived Plaintiff of the deposition of Dr. Brown by ordering that his deposition take place at Dr. Brown’s office at Children’s hospital located some 10 miles for the noticed location and which made it logistically impossible for Plaintiff’s counsel to comply with the Judge’s order.

During the 7/8/05 hearing the Judge again repeatedly interrupted and precluded Plaintiff’s counsel from making a record that could be read by the court of appeal, but instead made his own record favorable to defense counsel. Further, the Judge’s comments would support an inference that he had not even read Plaintiff’s moving paper nor Plaintiff’s reply papers.

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The following blog entry is written from a defendant’s position during pre-trial litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in an elder abuse case 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 personal injury case and its proceedings.)

Restitution Is Not An Appropriate Remedy for Medi-Cal or Medicare Patients

Defendants also contend that Plaintiff cannot, as a matter of law, seek restitution on behalf of those residents who receive Medi-Cal and Medicare benefits. Any party seeking to restore federal funds must do so through the federal False Claims Act, 31 U.S.C. §§ 3729-3733. Similarly, individuals seeking to restore state funds based upon false claims must proceed under the California False Claims Act, Government Code §§ 12650-12656.

As to EF’s argument that Medi-Cal is akin to a loan in which Residents have an ownership interest, this argument was soundly rejected by the California Supreme Court in Kizer v. Hanna (1989) 48 Cal.3d 1. The court held, as part of a retroactivity analysis, that there is no debt created by recoupment scheme of Welfare & Institutions Code Section 14009.5. EF is, therefor, simply wrong in its bootstrap assertion that nursing home residents incur a liability at the time Medi-Cal makes payments on their behalf and that the residents, therefore, have an ownership interest in the money. To the contrary, as explained in Hanna, “the payment of Medi-Cal does not create a debt under section 14009.5, because the Department’s right to reimbursement arises only after the recipient’s death and even then is contingent upon conditions in existence at that time.” Id., at 11. As noted in Defendants’ moving papers, Section 14009.5 clearly states that there is no right to reimbursement if the recipient leaves a surviving spouse, a minor or disabled child, or an insufficient estate.

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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 employment discrimination/personal injury case and its proceedings.)

Further, Defendant’s argument that Plaintiff has no legal protection for reporting illegal practices because such reporting was an essential part of her job duties turns logic and law upside down. If Defendant’s position were accepted, it would mean that the very employee charged with reporting illegal activity would have no incentive to make a report because the employee would not be protected from retaliation for reporting the illegal conduct.

Fortunately, and not surprisingly, California law does not abandon those employees most in need of legal protection, i.e., those who by virtue of their position must report illegal activity. See e.g. Green v. Ralee Eng. Co. (1998) 19 Cal.4th 66, 79 (public policy termination claim properly stated by quality control inspector who complained about unsafe conditions on airplane despite that the quality control inspector, like Plaintiff here, was simply doing his job); Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477 (supervisor who objects to and tries to stop sexual harassment of another employee entitled to protection from retaliation despite that supervisor had an obligation to make the report as part of basic supervisorial duties).

DISPARATE TREATMENT CLAIM

Although discovery has not been pursued with regard to this claim, Ms. Church contends that David Black (her quasi-supervisor for a period of time because her direct supervisor rarely came to work) and Mary Smith, her second-level supervisor, treated her differently than males in comparable positions.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. 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 bus accident/brain injury case and its proceedings.)

Here, the jury’s award of $15.1 million in non-economic damages is excessive in light of the evidence and should be reduced by the court. While the evidence established that plaintiff suffered a severe brain injury, there was no evidence that plaintiff’s injury is so debilitating that she cannot function or perform daily activities. Kim Hind, plaintiff’s treating occupational therapist, testified that plaintiff was able to exercise independently, prepare and eat breakfast independently, could follow simple directions, was able to select clothes and dress without assistance as well as perform personal hygiene without assistance. Ms. Hind also testified that plaintiff was able to do laundry, vacuum, swim, and write checks all with minimal assistance. Plaintiff is ambulatory and able to walk without the assistance of a wheelchair, a walker, or any other device.

In light of plaintiff’s abilities to perform numerous daily functions that are a part of normal life, an award of $15.1 million in non-economic damages is grossly excessive. It is clear the jury made its award based on sympathy and passion, influenced by trial counsel’s improper “golden rule” argument, and not based upon the facts of the case.

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