Personal Injury Lawyer Blog

Sacramento Woman Sues For Workplace Discrimination, Part 1 of 19

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 workplace harassment/sex discrimination case and its proceedings.)

Plaintiff GINA SMITH (hereinafter referred to as Plaintiff ) hereby submits her opposition to Defendant HEALTHMART FOODS (hereinafter Healthmart Foods or Defendant ) motion for summary judgment and summary adjudication of issues. This opposition is based on the fact that there are triable issues of fact as to each cause of action.

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This case involves an employee who was in no risk of losing her job for the first 26 months because she was doing a great job, who got pregnant, was constantly harassed about the pregnancy and fired for false reasons one day after her request for accommodation and complained of harassment without any investigation into her claims. Based on the evidence a triable issue of fact exists as to whether his firing was motivated by her complaints, accommodation requests and pregnancy and that she was harassed.

Plaintiff was considered a good employee prior to disclosing her pregnancy. Plaintiff worked for 26 months prior to disclosing her pregnancy. During that time she got 3 pay raises, multiple good reviews and praise for her good work. Also, the undisputed facts show there were no plans to fire her prior to her pregnancy and she was generally thought of as a good employee.

However, that changed after she disclosed her pregnancy. She disclosed her pregnancy in May of 2006. After that she was disciplined for talking about her pregnancy, told to quit because she is pregnant and they did not want pregnant employees, yelled at and cursed at.

Wilful Misconduct By Sacramento Doctor Leads To Birth Injury, Part 3 of 5

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 birth injury case and its proceedings.)

PLAINTIFF HAS PLEADED EACH AND EVERY ELEMENT OF A CAUSE OF ACTION
FOR WILFUL MISCONDUCT

Defendants David X., M.D. and Doctors Medical Group next demur to Plaintiff’s third cause of action, for Wilful Misconduct.

Defendants’ demurrer is replete with colloquy about how plaintiff has failed to plead any facts demonstrating that defendants’ conduct rose above the level of mere negligence.

Defendants David X., M.D. and Doctors Medical Group have offered no judicial authority as to just why plaintiff’s pleaded claim for wilful misconduct fails to meet the requirements of that well accepted tort.

The elements of wilful misconduct are as follows:
1. actual or constructive knowledge of the peril to be apprehended;
2. actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger; and

3. conscious failure to avoid the peril.

(Witkin, 6 Summary of California Law, 9th edition, Torts, section 761)

This standard was tested in New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681. New involved two motorcyclists who sued a landowner to recover for injuries sustained while they were riding their motorcycles on defendant’s property. In upholding the jury’s finding that defendant had acted wilfully or in conscious disregard of its duty to plaintiffs, the New court found that the trial court’s instruction of wilful misconduct did no more than state the well-established objective component of the test of wilful misconduct. (New, supra at p. 681).

Roseville Hospital And Nursing Facility Sued For Woman’s Brain Injury, Part 5 of 6

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 brain injury case and its proceedings.)

THERE IS A TRIABLE ISSUE OF FACT AS TO WHETHER THE NEGLIGENCE OF THE DEFENDANT WAS A CAUSE OF MS. SMITH’S DEATH WHERE NEGLIGENCE OF HEALTH CARE PROVIDER’S AT THE HOSPITAL WHERE SHE SOUGHT CARE CAUSED HER DEATH.

Defendant’s Motion misses the mark for several reasons.

First, defendant misstates the law of causation in this context. [W]here the additional harm results either from the negligence of doctors or hospitals who furnish necessary medical care, or from the materialization of a risk inherent to necessary medical care, the chain of causation set in motion by the original tort remains unbroken.

Even if one assumes, arguendo, that in the middle of this hospitalization the care for the fall concluded and the care for a completely unrelated seizure disorder began, the treatment for that disorder would still arise from the materialization of a risk inherent to necessary medical care. In this case, it is readily foreseeable that putting an elderly woman in the hospital would trigger some attendant care for unrelated medical conditions. Defendant’s reading of the cases to exclude from causation these complications in care misstates the case law. That is why they do not cite nor is there any case where a negligent tortfeasors causal culpability stops during the hospitalization that the tortfeasor created. The fall put Ms. Smith in XYZ Hospital and subjected her to their care. While under their care, her death was negligently caused. That raises a triable issue of fact on causation.

Mother and Daughter From Sacramento Sue for Birth Injury, Part 2 of 5

August 20, 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.)

ARGUMENT
IT IS WELL SETTLED THAT INCONSISTENT PLEADINGS ARE PERMITTED

Defendants’ David X., M.D. and Doctors Medical Group’s demurrer to Plaintiffs Complaint is based (initially) on the grounds that Plaintiffs first cause of action, for medical negligence, is duplicative of Plaintiff’s second cause of action, for Wrongful Life.

It is well established that a plaintiff is entitled to plead inconsistent causes of action. Rader Co. v. Stone (1986) 178 Cal.App.3d 10.

Rader Co., supra, involved an appeal from an Order of dismissal following the sustaining of demurrers, without leave to amend.

In holding that inconsistent causes of action are appropriate, the Rader Co., supra, court, stated, at p.29, of 178 Cal.App.3d, as follows:
Moreover, Rader is not precluded by law from alleging in one cause of action the breach of a contract and an inconsistent theory of recovery in another cause of action. To the extent Rader’s allegation in one cause of action of a fully executed contract with Stone is at odds with an allegation in a separate cause of action that PSR interfered in Rader’s advantageous relationship with Stone, such inconsistency is not fatal to Rader’s claims at the pleading stage, as a plaintiff is permitted to plead inconsistent or …, alternative counts.

Sacramento Man Seeks Damages From Police Dept. For Brain Injury, Part 9 of 9

August 19, 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.)

Mr. Santoro’s Damages are Straightforward and Largely Undisputed

Defendants suggest that plaintiffs damages evidence will be highly complex and note that there were numerous doctors who treated plaintiff during the months he was hospitalized at Sacramento Medical Center, Mercy and the rehabilitation facilities. However, plaintiff’s damages evidence will be streamlined, straightforward and largely undisputed.

First, as noted above, plaintiff intends to call only one doctor from Sacramento Medical Center and one from Mercy, each of whom will explain the nature and extent of Mr. Santoro’s head injury and the surgical procedures they performed. A third doctor, Dr. X from Children’s Hospital, will explain the tendon release he performed on Mr. Santoro’s legs. This is a very straightforward procedure. None on this testimony will be lengthy. While Mr. Santoro’s injury was severe, none of the testimony about the injury or his treatment is particularly complex or difficult to understand. And, as noted, there is little dispute about the nature and extent of Mr. Santoro’s injury – it is pretty clear cut. There is little disagreement among the parties’ medical experts. The only other medical experts will be a neurologist, a neuropsychologist and a life care planner.

Thus, defendants’ concern about complexity or an extensive number of witnesses regarding damages will not materialize in reality. A single trial will be efficient and take far less court and juror time than a two-phase trial.

Employment Action Filed Against Sacramento Fire Dept., Part 3 of 19

August 19, 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.)

2) With respect to acts that occurred prior to June 10, 2004 (and this would include the initial referral for a fitness-for-duty evaluation and the submission of an involuntary retirement application) the jury had evidence that these acts were sufficiently linked to a course of retaliatory and discriminatory conduct that continued into the one-year limitations period, and were thus actionable as well under the continuing violation doctrine.

3) The statute of limitations on a FEHA claim only begins to run when an alleged adverse employment action acquires some degree of permanence or finality. See Yanowitz v. L’Oreal, supra, at 1058. The jury had sufficient evidence to conclude that the City’s decision to send Mr.Carter to a fitness for duty evaluation and apply for an involuntary disability retirement did not acquire a degree of permanence or 22 finality until well within the one-year statutory period, and perhaps as late as the date the retirement took effect on January 20, 2005.

4) As detailed by the California Supreme Court in Romano v. Rockwell, the statute of limitations in a case like the present one is not triggered by the date on which Mr.Carter was notified of the City’s intent to terminate him (the April 26th submission of involuntary retirement papers) but rather the date of actual separation, which was January 20, 2005-a date well within the one-year limitations period. This is because of equitable tolling considerations that encourage informal conciliation. See Richards, supra, at 820.

Sacramento Physician Sued For Causing Birth Injury, Part 1 of 5

August 19, 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.)

POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ DAVID X., M.D, AND DOCTORS MEDICAL GROUP’S DEMURRER TO AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT
INTRODUCTORY STATEMENT

In response to Plaintiff’s Complaint, defendants David X., M.D. and Doctors Medical Group of Sacramento, California have filed a demurrer to, and Motion to Strike portions of, Plaintiff’s Complaint.

Defendants’ David X., M.D. and Doctors Medical Group argue that Plaintiff’s First Cause of Action, for medical negligence, on the grounds that it duplicates the Second Cause of Action, for Wrongful Life.

As will be seen from the following Points and Authorities, inconsistent pleadings have long been permitted, and therefore defendants’ David X., M.D. and Doctors Medical Group’s demurrer, upon grounds of inconsistency, is without merit.

Defendants’ David X., M.D. and Doctors Medical Group next contend that Plaintiff’s Third Cause of Action, for Wilful Misconduct, fails to state facts sufficient to state a cause of action for this tort.

Again, as demonstrated by the following Points and Authorities, Plaintiff has properly pleaded each and every element of a cause of action for Wilful Misconduct, and defendants’ assertions to the contrary are specious.

Family Of Sacramento Woman Sues Nursing Home For Her Death, Part 4 of 6

August 18, 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.)

In Hastie v. Handeland (1969) 274 Cal. App. 2d 599, a case involving a vehicular collision and subsequent death of the victim following medical care, the court held a tortfeasor was liable for the subsequent injury suffered during medical treatment. Id. at pp. 604-605 If death resulted from a risk inherent in the medical treatment reasonably required to cure the injuries caused by the accident, respondents the original would be liable irrespective of whether such treatment was rendered in a proper or a negligent manner.

The question is one of causation, and where the additional harm results either from the negligence of doctors or hospitals who furnish necessary medical care, or from the materialization of a risk inherent to necessary medical care, the chain of causation set in motion by the original tort remains unbroken. [Citations.] (Id. at p. 606.)

In one case, the victim of a motorcyle accident was injured further by a trauma room surgeon. Following that care, the patient sought care from Kaiser Foundation facilities, where their negligence further aggravated the situation. The court held that the trauma surgeon was responsible for the additional injuries caused by the negligence of the Kaiser staff. The court explained: The principle usually appears in cases involving automobile accidents, where the initial tortfeasor’s careless driving exposed the plaintiff to a risk of physical harm, including medical treatment for the injuries resulting from the accident. The initial tortfeasor therefore is liable for the resultant medical treatment. The rationale for the rule is that such medical treatment is closely and reasonably associated with the immediate consequences of the defendant’s act and forms a normal part of its aftermath.

Sacramento Auto Accident Results In Insurance Lawsuit, Part 2 of 11

August 18, 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.)

Plaintiffs’ complaint against Blue Shield contains causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing and intentional infliction of emotional distress. Plaintiffs’ primary contention is that Blue Shield engaged in prohibited post claims underwriting in violation of Health and Safety Code section 1389.5 when it waited s until after claims had been filed to look beyond the four comers of the application’s answers to ascertain whether the answers Sally Lawrence provided were accurate and complete.

The trial court sustained Blue Shield’s demurrers to plaintiffs’ complaint and granted summary judgment. On appeal, the Fourth District Court of Appeal determined that the complaint’s causes of action were viable and that Blue Shield was obliged to complete its medical underwriting and resolve all reasonable questions arising from the written application before issuing coverage. The court specifically determined that medical underwriting requires health care service providers to do more than simply assign values to the risks disclosed on the application. They must make reasonable efforts in every case to make inquiries outside the application and to answer all reasonable questions arising from the information provided on the application to make sure that a potential subscriber’s application is accurate and complete. Blue Shield did not do any of that in this case, and plaintiffs sustained significant injury and damage as a consequence of that failure.

Sacramento Company Sued For Workplace Harassment, Part 2 of 7

August 18, 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.)

LEGAL ARGUMENT
A. LEGAL STANDARD FOR DEMURRER

The function of a demurrer is to test the sufficiency of a Plaintiffs pleadings by raising questions of law, such that the Plaintiff must show that the Complaint alleges facts sufficient to establish every element of each cause of action. Title Ins. Co. v. Commercial Bank-California (1994) 27 Cal.App.4th 800, 807. The Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.

The Court also considers matters that are judicially noticeable under C.C.P. § 430.30(a). The Court must sustain a demurrer only where the Complaint itself is defective, incomplete, or discloses some defense that would bar recovery. C.C.P. §§ 430.10, 430.30, 430.50; Harboring Villas Homeowners Ass’n. v. Superior Court (1998) 63 Cal.App.4th 426, 429.

B. FOR THE PURPOSE OF A DEMURRER. ALL MATERIAL ALLEGATIONS OF PLAINTIFF’S COMPLAINT MUST BE ACCEPTED AS TRUE
The only issue that can be raised by a demurrer is whether the facts pled on the face of the Complaint state a valid cause of action, not whether the allegations are true or whether they can be proven at trial. Serrano v. Priest (1971) 5 Cal.3d 584, 591. Plaintiff’s allegations in the pleadings must be liberally construed with a view to substantial justice between the parties. National Auto & Cas. Ins. Co. v. Payne (1968) 261 Cal.App.2d 403, 408; C.C.P. § 452. This rule applies no matter how unlikely the allegations may be. Dell E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App.3d 593, 604; Meyer v. Graphic Arts Int’l. Union Local No. 63-A, 63-B (1979) 88 Cal.App.3d 176.