Personal Injury Lawyer Blog

Sacramento Teens Killed In Car Accident, Part 1 of 8

October 5, 2009 | by Moseley Collins

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

Plaintiff’s Opposition to Defendants Robert and Stacy Greene’s Demurrer to Plaintiff’s Third Amended Complaint
MEMORANDUM OF POINTS AND AUTHORITIES
CASE SYNOPSIS

This lawsuit arises from an automobile accident that occurred on the morning of December 20,2006, at approximately 1:00 a.m. near the intersection of Fair Oaks Blvd. and Howe Avenue, in Sacramento. Defendant Danny Smith, age 18, was driving a 2002 Toyota Camry, owned by his father, Defendant Richard Smith. His passengers were Mike Greene, age 19, Tom Lawrence, age 18, Kevin Greene, age 15, and Plaintiff Paul Verano, age 14. The youths had been celebrating Kevin Greene’s 15th birthday at El Mexicano restaurant in Sacramento the evening of the 19th and early morning of the 20th.

Defendant Danny Smith left the restaurant in an intoxicated state, was proceeding eastbound on Fair Oaks in the no. lane in his Camry, speeded up to pass Stacy Greene, Kevin Greene’s sister, who was driving in front of him. As Defendant Danny Smith moved into the no. 2 lane to pass Stacy, he apparently tried to slow to avoid hitting another car that was already in the no. 2 lane in front of him, lost control of his vehicle, jumped the curb and struck a tree on Fair Oaks. The impact was so severe that the Camry burst into flames, trapping the youths inside the vehicle. Defendant Smith, Mike Greene and Tom Lawrence were killed. Plaintiff Verano and Kevin Greene, who were seatbelted and sitting in the rear seat, survived the crash. Plaintiff Verano suffered serious injuries. (See Part 2 of 8.)

Sacramento-Area Radio Station Sued For Fatal Contest, Part 2 of 6

October 4, 2009 | by Moseley Collins

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

DISCUSSION
Because Defendants Offer Insufficient Undisputed Material Facts to Shift the Burden to Plaintiff, the Motion Must Fail

The party moving for summary adjudication must show that plaintiff cannot establish an essential element for a cause of action. C.C.P. §437c(p)(2). As a threshold, the moving party must show, that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.C.P. §437c(c) (emphasis added). Here, of the 34 undisputed material facts proffered by Defendants, only three are undisputed. Of the remaining 31 facts, four are disputed as irrelevant. The balance of 27 material facts are each disputed on substantive, material grounds. In addition, Plaintiffs offer 45 disputed material facts that bear directly on the severe, clinical and chronic emotional distress and related psychological injuries suffered by each of them. Because Defendants fall far short of the threshold burden to demonstrate there is no triable issue as to any of the material facts offered in support of summary adjudication, the motion must fail.

Defendants Cannot Establish the Absence of Disputed, Material Facts in Light of Plaintiffs’ Showing of Severe Emotional Harm and Psychological Distress

Defendants cite Fletcher v. Western Nat. Life Ins. Co. (1970) Cal.App.3d 376, 396-397 for the proposition that, it is the court that determines whether, on the evidence, severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. They aver that to prove intentional infliction of emotional distress, plaintiffs, must show they suffered severe emotional distress. Motion, 7:16-17, citing Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903. Defendants refer to civil jury instructions which defines severe emotional distress as a condition which is, not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it. Motion, 7:20-23, citing California Jury Instruction 1604. Defendants identify that courts have traditionally considered factors like intensity; duration; and psychological manifestations of emotional distress when determining severity. Motion, 7:23-8:4, citations omitted. Against any backdrop articulated by Radio, it is clear that each of the Smith Plaintiffs have suffered severe emotional distress due to the wrongful death of their co-contestant.

Bicycle Path Source Of Dispute In Sacramento Bicycle-Auto Collision, Part 7 of 7

October 3, 2009 | by Moseley Collins

(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.)

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 a personal injury case present such issues to the court.

The Frontage Road is not a bicycle lane and should not be referred to as such. A bicycle lane is a term of art, defined by statute. CVC Section 21207 permits local authorities to establish bicycle lanes upon streets, as defined in Section 24 of the Streets and Highways Code pursuant to Article 5 (commencing with Section 1720) of Chapter 9 of Division 2 of the Streets and Highways Code. Bicycle lanes thus established must comply with Section 891 of the Streets and Highways Code, which sets forth the definition of a bicycle lane. Under Streets and Highways Code Section 890.4, there are three categories, called bicycle paths, lanes and routes, as follows:

(a) Class I bikeways, such as a bicycle path, provide a completely separated right of way designated for the exclusive use of bicycles and pedestrians with cross-flows by motorists minimized;
(b) Class II bikeways, such as a bicycle lane, provide a restricted right of way designated for the exclusive or semi-exclusive use of bicycles with through travel by motor vehicles or pedestrians prohibited, but with vehicle parking and cross-flows by pedestrians and motorists permitted.; and
(c) Class III bikeways, such as a bike route, provide a right of way designated by signs or permanent markings and shared with pedestrians or motorists.

Sacramento Plaintiffs Sue Radio Station Due To Wrongful Death, Part 1 of 6

October 2, 2009 | by Moseley Collins

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

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Radio Roseville’s Motion for Summary Adjudication
INTRODUCTION

In their latest attempt to escape liability, the Radio Defendants ask the Court to rule that Plaintiffs Paul Smith, Steven Davis, and Mike Jones (hereinafter, “the Smith Plaintiffs” ) cannot establish an essential element of their respective claims for Intentional Infliction of Emotional Distress, i.e., severe emotional distress. Defendants mistakenly assume that because they did not adduce what Defendants consider to be “evidence of severe emotional distress,” then Plaintiffs cannot have suffered it. Not only is this position logically flawed, but by its nature finds Defendants relying almost exclusively on irrelevant facts and unsupported assumptions.

Radio’s motion is fatally flawed; it fails utterly to demonstrate the absence of material, disputed facts with respect to the severity of each Plaintiffs’ emotional injuries. Among other flaws, Defendants imply, without foundation in fact or law, that because the physical symptoms of hyponatremia faded for each within days following the contest, the Smith Plaintiffs cannot have sustained emotional harm. In fact, each Plaintiff has been diagnosed as suffering from Post Traumatic Stress Disorder, in addition to a variety of other psychological conditions ranging from anxiety, survivor guilt and water phobia to major depression. To address these issues each Plaintiff is being treated by a variety of mental health care professionals.

Even if the Court somehow found sufficient absence of triable, material facts to consider whether the burden shifts to Plaintiffs, the motion must still fall. Plaintiffs submit 45 Disputed Facts establishing that each of the Smith Plaintiffs has been clinically diagnosed with severe emotional harm, including PTSD; severe survivor guilt; severe anxiety; irrational fear; phobias; and major depression.

Pregnant Sacramento Employee Unfairly Terminated, Part 16 of 19

October 1, 2009 | by Moseley Collins

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

3) Adverse action – Fired and the decision to fire her was made on June 23 – not disputed.

4) Other circumstances suggest discriminatory motive:

The timing of the action suggests a discriminatory motive between the pregnancy and the decision to fire her about one month later. Hanson v. Lucky Stores, Inc., (1999) 74 Cal. App. 4th 215, 224; Flait v. North American Watch Corp., (1992) 3 Cal. App. 4th 467, 476, 479).

Also, discriminatory motive can be established by statements by a decision maker, which shed light on the employer’s true motivation. Reeves, 530 U.S. at 148; Cook, 69 F.3d at 1238. Again, both Mr. Davis and Mr. Chan constantly made negative comments about Plaintiff’s pregnancy/disability including telling her to quit or go on disability, that a pregnant women is not wanted, that pregnant women have attitudes and hormones and should quit or go on disability, etc.

PLAINTIFF HAS AMPLE EVIDENCE OF PRETEXT
i. The timing of the termination supports pretext:

Pretext may be inferred from the timing of the discharge decision. Hanson, 74 Cal. App. 4th at 224; Flait, 3 Cal. App. 4th at 476, 479). Here, as stated above, the decision came within about one month of her disclosing she was pregnant. There were no plans to fire her before that point and she as considered at least an average employee up to that point.

Sacramento-Area Automobile Driver Claims Bicyclist Riding Illegally, Part 6 of 7

October 1, 2009 | by Moseley Collins

(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.)

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 a personal injury case present such issues to the court.

11. Defendant’s Theory of the Case

Plaintiff is 100% negligent and is the sole cause of the auto collision and his resultant injuries. There is no evidence that defendant violated any law or ordinance or did something that a reasonably careful person would not do in the same situation, or that defendant failed to do something that a reasonably careful person would do in the same situation. At all times, defendant used reasonable care to prevent injury to himself and to others.

The accident occurred in one of two ways:
(a) Plaintiff came riding down the sidewalk in violation of Sacramento Traffic Ordinance Section 96 (bicycle on a sidewalk), failed to keep a careful lookout for cars turning right from the Boulevard onto Ridge and failed to yield the right of way to defendant, who was lawfully traveling east on Ridge; or
(b) Plaintiff came riding down the Frontage Road, ran through the stop sign at Ridge, failed to keep a careful lookout for cars turning right from the Boulevard onto Ridge and failed to yield the right of way to defendant, who was lawfully traveling east on Ridge.

Firefighter Claims Unlawful Workplace Harassment By Sacramento Fire Dept., Part 19 of 19

September 30, 2009 | by Moseley Collins

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

It should also be pointed out that to the extent that the Retirement Board found Mr. Carter unfit and suitable for retirement in January of 2005, that mental disability could have been caused by the City’s earlier retaliation and discrimination. This much is suggested by Dr. X.’s testimony.

Finally, the Retirement Board made a decision on plaintiff’s retirement. The issues before this court, including whether Mr. Carter was discriminated against or retaliated against were never before the Retirement Board. Similarly, the Retirement Board’s never confronted the issue over whether the process and the information that it was asked to rely on was tainted by retaliatory or discriminatory motives, which was necessarily the case given the jury’s verdict. It issued no binding decision on that question, nor could it have.

It is well-known that in the area of employment law the chain of causation is not broken by the intervention of an innocent actor that was relying on information that was tainted by a retaliatory or discriminatory animus. To establish an entitlement to judgment as a matter of law, it is not enough to show that one actor acted for lawful reasons when that actor may be found to have operated as a mere instrumentality or conduit for others who acted out of discriminatory or retaliatory animus. Reeves v. Safeway (2004) 121 Cal.App.4th 95, 113. If a supervisor makes another a tool for carrying out a discriminatory action, the original actor’s purpose will be imputed to the tool, or through the tool to the common employer. Id. To put it simply, an employer does not negate the element of causation by showing that some responsible actors, but not all, were ignorant of the occasion for retaliation or discrimination. Id, at 108.

Three Injured Sacramento Men Sue Radio Station For Deadly Contest, Part 4 of 4

September 29, 2009 | by Moseley Collins

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/personal injury 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 a personal injury case present such issues to the court.

Third, evidence or argument regarding brain damage would be highly prejudicial to Defendants and misleading or confusing to the jury. Cal. Evid. Code § 352 (excluding evidence that is more prejudicial, confusing, or misleading than probative). The presentation of such evidence could plausibly lead the jury to believe that brain damage is at issue in the case, when in fact it is not.

Fourth, allowing such evidence would unnecessarily consume trial time. Cal. Evid. Code § 352. If Plaintiffs allowed Dr. X. to testify about whether the amount of water consumed during the contest could or would be expected to cause brain damage, Defendants would not only have to present rebuttal expert testimony, but would have to spend time attempting to explain to the jury that despite the fact that such testimony was presented to them, it has no bearing on the claims at issue.

Pregnant Sacramento Woman Discriminated Against By Store Management, Part 15 of 19

September 28, 2009 | by Moseley Collins

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

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER DISCRIMINATION CLAIMS (CLAIMS 1, 2, 7 & 8)

PLAINTIFF HAS DIRECT EVIDENCE OF DISCRIMINATION

As stated above, direct evidence consists of discriminatory statements or actions by the employer. Coghlan, 413 F.3d at 1095. Discriminatory or retaliatory remarks do not have to be made it the direct context of an employment decision to be direct evidence of discrimination. Chuang, 225 F.3d at 1115. Single statements are enough to provide probative evidence of discrimination. Sinai, 3 F.3d at 474. Here, the direct evidence is clear. Both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy/disability. Other comments that were made (i.e. don’t give a shit, pregnant women have hormones and attitudes and you should quit or go on disability, can’t ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well right before she was fired.

There is also direct evidence of hostility to pregnant employees with accommodation requests. When evidence establishes the employer’s animus towards the class that plaintiff belongs, this is considered direct evidence and defeats summary judgment. Id.; Cordova, 124 F.3d at 1149. Here, the evidence shows that Plaintiff was discipline for talking about her pregnancy, which was the first step in the discipline that led to her firing.

Also, there is direct evidence of bias by Mr. Davis in his deposition admission. Mr. Davis admitted he viewed Plaintiff disputing the counseling as because she was pregnant.

PLAINTIFF HAS ALSO MET THE PRIMA FACIE CASE OF DISCRIMINATION

Plaintiff can establish a prima facie case of discrimination. The specific elements of a prima facie case may vary depending on the particular facts. Guz v. Bechtel Nat’l. Inc., (2000) 24 Cal. 4th 317, 355. Generally, the plaintiff must provide evidence that: 1) she was a member of a protected class; 2) she was performing competently in the position she held; 3) she suffered an adverse employment action, such as termination, and 4) some other circumstance suggests discriminatory motive. Id. at 355. Here, all four elements are met:

Reckles Conduct By Sacramento Chiropractor Leads to Lawsuit, Part 4 of 4

September 28, 2009 | by Moseley Collins

(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.)

22. Said willful and reckless misconduct by defendants Wellness and Jones falls outside the purview of C.C.P. § 340.5 and cannot be reasonably interpreted as acts or omissions occurring within the context of substandard professional health care services, but rather more rationally falls within the context of a gross mis-diagnosis, battery and mistreatment of the Plaintiff.

23. Therefore, said Willful and Reckless Misconduct and Battery by the defendants and each of them, was oppressive and malicious within the meaning of Civil Code §3294 in that said defendant’ conduct was willful, wanton, malicious, oppressive and done with conscious disregard to Plaintiffs rights and safety and in that it subjected plaintiff to cruel and unjust hardship, and injury, and which justifies an award of exemplary and punitive damages in an amount to be determined at trial.

24. As to the other causes of action Plaintiffs damages are not limited by M.I.C.R.A. This cause of action has been pleaded in the alternative.

WHEREFORE, Plaintiff prays for judgment as follows:
1. General damages in the maximum amount provided in law;
2. For past and future medical, hospital, rehabilitation and incidental expenses for care and treatment, according to proof at trial;
3. For past and future lost earnings, and for lost earning capacity, according to proof at trial;