Personal Injury Lawyer Blog

Sacramento Firefighter Pushed To Early Retirement, Part 6 of 19

August 27, 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.)

The defendant claims that the two discriminatory acts identified above occurred prior to June 10, 2004, and are thus not actionable. Specifically, the defendant contends that plaintiff was sent to a fitness for duty evaluation on February 26, 2004, and that an involuntary retirement application was filed on April 26, 2004. Unfortunately for the defendant, that doesn’t tell the whole story. On August 10, 2004, Mr.Carter was re-evaluated by his treating physician, and released to be returned to work without restrictions. The release indicated that Mr.Carter’s episode of Major Depression was in complete remission. Critically, the next day, on August 11, 2004, the City sent Mr.Carter for a fitness for duty evaluation. That date is well within one-year of the filing of the DFEH charge, which was filed on June 10, 2005.

Moreover, when Mr.Carter objected to attending the August 11th evaluation, which was scheduled for August 17th, the City solicited a follow-up fitness for duty evaluation on Mr.Carter from Dr. Stephanie Z.. That follow-up fitness-for-duty report was issued on September 4, 2004. Again, this date is well within one-year of the June 10, 2005 DFEH charge.

It should also be noted that although the City submitted an involuntary retirement application for consideration on April 26, 2004, that application was pursued and pending from April 26, 2004 all the way until January 20, 2005. Thus, a discriminatory and retaliatory retirement application was actively pursued both before June 10, 2004 (the one-year point) as well as after June 10, 2004. That means that the retirement application, which the jury clearly found was an act of retaliation and disability discrimination, was actively pursued by the City well into the one-year statutory period.

Husband And Wife From Sacramento Fight For Accident Coverage, Part 5 of 11

August 26, 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/insurance coverage case and its proceedings.)

FACTS ESSENTIAL TO JUSTIFY OPPOSITION MAY EXIST BUT CANNOT, FOR REASONS STATED IN THE ACCOMPANYING EXPERT WITNESS DECLARATIONS, NOW BE PRESENTED. DEFENDANT’S MOTION SHOULD THEREFORE BE DENIED OR, ALTERNATIVELY, THE MOTION SHOULD BE CONTINUED TO PERMIT AFFIDAVITS TO BE OBTAINED AND DISCOVERY TO BE HAD.

Code of Civil Procedure section 437c, subdivision (h), provides in pertinent part as follows:

(h) If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or make any other order as may be just. The application to continue the motion to obtain necessary discovery may be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

The decisions make it quite clear that this subsection of the statute is designed to guarantee due process and to ensure that the drastic remedy of summary judgment is not resorted to where, for stated reasons, the party opposing the summary resolution of a case has not been able to obtain the discovery and affidavits that would demonstrate the existence of triable issues of fact. See, e.g., Ambrose v. Michelin North America, Inc., 134 Cal.App.4 th 1350, 1353 (2005); Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30, 34 (2003); Frazee v. Seely, 95 Cal.App.4th 627, 634 (2000); Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 (2001); Vanderbilt v. Superior Court, 105 Cal.App.3d 628, 637 (1980).

Sexual Harassment By Owner of Sacramento Company, Part 3 of 7

August 26, 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 sexual harassment case and its proceedings.)

C. DEFENDANTS’ DEMURRER FAILS TO CITE TO THE CORRECT LAW
PLAINTIFF HAS PLED A PRIMA FACIE CLAIM FOR RETALIATION AGAINST THE INDIVIDUAL DEFENDANT AND THE MANAGERIAL PRIVILEGE DOES NOT BAR HER CLAIM

Defendants have demurred to Plaintiffs Third Cause for Retaliation against Defendant Mr. Jones without any legal or factual basis. The law on retaliation is clear. Contrary to Defendants’ assertions, an employee (supervisor) the Fair Employment and Housing Act makes it unlawful for “any employer or person to retaliate against an employee for protected activities.” Government Code §12940(h). Supervisors are subject to personal liability for retaliation under FEHA. Page v. Superior Court, (1995) 31 Cal.App.4th 1206, 1211-1212.

Defendants’ analogy to Janken v. Hughes (1996) 46 Cal.App.4th 55 and Reno v. Baird, (l998) 18 Cal.4th 640, indicating that the actions taken against Plaintiff were common personnel management actions, is undeniably a misstatement of law. In Janken, the court clearly distinguished between a supervisor’s actions that are commonly necessary personnel management actions and allegation of conduct hat violation FEHA. Janken at 62-63. The Janken court concluded that INDIVIDUAL supervisory employees should be held personally liable for conduct which violates FEHA unless their conduct is based solely on managerial decisions that are inherently necessary to perform their supervisory functions. Discussing the discrimination between harassment and discrimination, the Janken court stated, we conclude that the legislature’s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance as contrasted with business or personnel management decisions. Id. The court in Reno confirms Janken’s conclusion that the imposition of indivdual liability is appropriate. Reno at 645. Therefore, Defendant Mr. Jones is individually liable.

Further, individual defendants can be liable for retaliation. Wintaro v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F3d 1276, 1288. Supervisors are persons and potentially liable for retaliation. Wintaro v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F3d 1276, 1288. See also Liberto-Blanck v. City of Arroyo Grande (CD CA1999) 33 F. Supp.2d 1241, 1244;; Walrath v. Sprinkel (2002) 99 Cal.App.1237, 1242,

Elder Abuse Action Filed By Sacramento Family, Part 6 of 6

August 26, 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 case and its proceedings.)

On that issue, defendant has failed to meet her prima facie burden because her moving papers do not include any evidence, admissible or otherwise, that Ms. Smith’s fall treatment had concluded as of April 30. Nowhere in the evidence offered there does any health care provider opine that the care for the fall had concluded or the care that came afterward was completely unrelated to the fall. Again, nowhere do the words appear in Defendant’s evidence that care for the fall had concluded. Without some evidence to that effect, the defendant has failed to meet its burden of producing evidence.

The defense asks the court to make an enormous leap of faith and make that finding by attaching to their attorney’s declaration without foundation medical records that reflect pain medications were discontinued and discharge planning commenced. For the reasons stated in plaintiff’s objections submitted herewith, this evidence is inadmissible to prove her care for the fall had concluded.

Thirdly, there is at least a factual dispute on the question of whether some or all of decedent’s hospital care after April 30, was for the fall. Plaintiff, and logic, dispute any notion that on April 30, 2005, Ms. Smith’s care for the fall had concluded. Tammy Bauer, who guided the medical care from the patient’s standpoint declared that the care in the hospital for the fall continued during Ms. Smith’s entire stay as she continued to have severe or intractable left thoracic pain.

Sacramento Firefighter Sues For Retaliatory Firing, Part 5 of 19

August 25, 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.)

PLAINTIFF IDENTIFIED NUMEROUS ACTS OF DISCRIMINATION AND RETALIATION WITHIN THE 1-YEAR LIMITATIONS PERIOD

With respect to plaintiff’s disability discrimination and retaliation claims, he identified numerous acts that occurred within one-year of the filing of his DFEH Charge. Therefore, the jury’s determination that his complaint with the DFEH was timely is easily explainable. That is, even if you ignore the continuing violation doctrine, plaintiffs disability discrimination and retaliation claims are still timely.

A. Disability Discrimination and Retaliation Claim
The Special Verdict Form on these causes of action asked if plaintiff filed a timely complaint of discrimination with the California Department of Fair Employment and Housing. The answer was: Yes.

The defendant claims the jury’s finding on timeliness is impossible because the two acts plaintiff identified, as set forth in Special Verdict Question #4, #5 and #10 occurred more than one year prior to the filing of the DFEH administrative charge. Special Verdict Question #5 reads as follows:

Was the City’s purported belief that Michael Carter had a perceived mental disability a motivating reason for the City’s decision to send Michael Carter for a fitness for duty evaluation and/or subsequently apply for an involuntary disability retirement?
Question #10 reads as follows:

Sacramento-Area Store Sued For Sex Harassment, Part 2 of 19

August 24, 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.)

STATEMENT OF FACTS
A. PLAINTIFF WORKED FOR DEFENDANT SERVING CUSTOMERS

Plaintiff Gina Smith (hereinafter Plaintiff or Ms. Smith) worked for Defendant for multiple years in the Roseville store. Ms. Smith was hired in April 16, 2004. Her job was to work in prepared foods, serving Healthmart Foods customers various types of food, i.e., pizza, sandwiches, salad, soup, etc. Plaintiff was employed by Defendant until April 27, 2007.

PLAINTIFF WAS A GOOD EMPLOYEE DURING HER EMPLOYMENT WITH DEFENDANT, EARNING MULTIPLE MERIT BASED PAY RAISES

During her employment with Defendant, Plaintiff was a good employee. First, as an introductory employee she was voted on by her team members to work in prepared foods, which requires a positive two-thirds vote. For Plaintiff to be voted on, she had to be performing satisfactory, which she was. Ms. Smith earned three merit based pay raises during her tenure, moving from $9.00 an hour, to $9.25, then $10.25 and then $11.25. She received good performance reviews.

The decision maker admitted she was at least an average employee. Mr. Davis is the Store Leader. He made the decision to fire Ms. Smith. Mr. Davis admitted that from April 16, 2004 through May of 2006 (before he learned she was pregnant), she was an average employee.

During her employment with Defendant, Ms. Smith received favorable marks. First, she was told numerous times by all her supervisors, including Paul Chan that she did an excellent job and was a great employee. She was constantly complimented by staff, customers and her supervisors for her great customer service. Mr. Davis admits to getting positive feedback about Plaintiff’s performance from her supervisor. Mr. Davis admits that Ms. Smith’s customer service was good, at least at times.

Sacramento Family Seeks Punitive Damages For Birth Injury, Part 4 of 5

August 24, 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 birth injury case and its proceedings.)

IT IS APPROPRIATE FOR A PLAINTIFF TO INCLUDE A PRAYER FOR A SPECIFIC DOLLAR AMOUNT, AS WELL AS A PRAYER FOR PUNITIVE DAMAGES BECAUSE CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 425.13(a) (AS IS C.C.P. SECTION 425.10) IS PATENTLY UNCONSTITUTIONAL

Preventing plaintiffs from stating the amount of damages they seek violates a litigant’s First Amendment right to free expression, as the two cited statutes command prior restraint on freedom of expression.

To put this matter in perspective, we start with the dissenting opinion of our late, beloved Justice Mosk, who, more than a decade past, in Schwab v. Rondel Homes, Inc. (1991) 53 Cal. 3d 428, 440-441, 280 Cal.Rptr. 83, wrote:

A statutory scheme that forbids a party to provide useful information-a form of compulsory silence-and that creates anomalous results … urgently needs reexamination. Moreover, in a newsworthy case, a lawyer or party can always call a press conference and trumpet the claims to the heavens, or at least to the terrestrial media. Thus, not only are (CODE OF CIVIL PROCEDURE SECTIONS) 425.10 and 425.11 bad law and bad policy, they are an ineffective means of implementing the legislature’s apparent intent. Nor can they be made effective: I cannot conceive of legislation that could constitutionally prevent plaintiffs with sensational personal injury damage claims from announcing those claims in any forum whatsoever. (Emphasis added).

Insurance Company Rescinds Coverage To Sacramento Accident Victim, Part 4 of 11

August 23, 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/insurance coverage case and its proceedings.)

14. Plaintiff Bob Lawrence sustained disabling injuries in an automobile accident on March 19, 2001.

15. On June 5, 2001, Blue Shield mailed plaintiffs a letter informing them their coverage was cancelled retroactively to December 15, 2000.

16. Before rescinding the contract, Blue Shield had authorized surgery, treatment, care and physical therapy for plaintiff Bob Lawrence’s injuries in an amount in excess of $457,000.00.

17. After rescinding the contract, Blue Shield paid for only a small portion of the surgery, treatment, care and physical therapy it had previously authorized for Bob Lawrence.

18. After the rescission the Lawrences were unable to pay the medical bills they had incurred or obtain the surgery, treatment, care and physical therapy which plaintiff Bob Lawrence required because they lacked the money to do so.

19. On December 15, 2000, and thereafter, plaintiffs could have obtained coverage under the health plan offered by plaintiff Sally Lawrence’s new employer had they been denied coverage under the Blue Shield plan.

Firefighter From Sacramento Files Suit For Wrongful Termination

August 22, 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.)

STANDARDS GOVERNING MOTION FOR NEW TRIAL RULING

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision …unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. See, CCP §657. The California Constitution limits the power of the trial court to grant a new trial unless, after examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. See Rutter Group’s Civil Trials and Evidence; 18:352 (2007); California Constitution, Article VI, Section 13; Maher v. Saad (2000) 82 Cal.4th 1317, 1324. Given the state of the evidence, the only miscarriage of justice that could possibly result would be if the jury’s verdict were thrown out.

TIMING OF EVENTS

A detailed timeline of the evidence at trial is attached to the Declaration of Tom Barry, and is part of the Memorandum of Points & Authorities in Opposition to the JNOV. The chronology helps illustrate the continuity of the unlawful employment acts, and clearly demonstrates that unlawful activity continued into the one-year statutory period.

THE FEHA’S STATUTE OF LIMITATIONS IS LIBERALLY CONSTRUED
The provisions of the California Fair Employment and Housing Act shall be construed liberally for the accomplishment of the purposes thereof. See Government Code §12993(a). In accordance with this overall objective, it is well settled that the section 12960(d) administrative statute of limitations must be liberally construed. In Romano v. Rockwell International (1996) 14 Cal.A4th 479, 494, the California Supreme Court stated the following: In order to carry out the purpose of the FEHA to safeguard the employee’s right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on their merits. Similarly, while discussing the timeliness of filing an administrative charge with the Department of Fair Employment and Housing, the California Supreme Court stated the following:

Sacramento Insurance Company Mistakes Injure Couple, Part 3 of 11

August 21, 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/insurance coverage case and its proceedings.)

STATEMENT OF FACTS

1. Plaintiffs submitted their application for a family health care services contract to Blue Shield in 2000 through insurance agent Kenny Shulman.

2. Blue Shield extended coverage to Sally Lawrence and her family commencing December 15, 2000.

3. Blue Shield conducted no investigation and made no inquiry beyond the application answers into whether the information Sally Lawrence provided on the application was accurate and complete before issuing coverage, and instead performed its risk assessment on the assumption the application contained no errors by assigning values to the risks disclosed.

4. Blue Shield did not make inquiry into the accuracy and completeness of Sally Lawrence’s application answers and did not make any inquiry or investigation into the accuracy and completeness of her responses until February 8, 2001, when it referred plaintiffs’ contract to its Underwriting Investigation Unit. .

5. The Blue Shield application’s agent’s certification required Kenny Shulman to ask Sally Lawrence, Bob Lawrence and Sammy Lawrence each question contained in the Blue Shield application, exactly as stated, to ensure that each oral answer was accurately set forth in the written application.

6. Kenny Shulman did not ask Sally Lawrence, Bob Lawrence and Sammy Lawrence each question contained in the Blue Shield application, exactly as stated, to ensure that each oral answer was accurately set forth in the written application.

7. Plaintiffs’ Second Amended Complaint contains causes of action for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing and Intentional Infliction of Emotional Distress.

8. The California Court of Appeal, Fourth District, Division Three, determined that the three causes of action set forth in Plaintiffs’ Second Amended Complaint are viable.