| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

STATEMENT OF FACTS
A. The Complaint and Universal’s Separate Statement

Plaintiffs’ complaint filed August 24, 2007, alleges causes of action for personal injuries (survivorship), wrongful death, negligence, breach of implied warranty, strict liability ( consumer expectation and failure-to-warn defects), fraud and conspiracy, alternative-enterprise and concert-of-action liability, and premises liability against several defendants, including Universal. In their complaint, plaintiffs allege, among other things, that decedent Tina Gomez was exposed to asbestos taken from the premises of the West Facility on the person of David Plaza from 1981 through 1983. Universal is a defendant in 26 of the complaint’s causes of action including, among others, fraud, conspiracy-to-defraud and concert-of-action.

Nowhere in Universal’s moving papers does it show that it ever propounded any comprehensive discovery seeking all of plaintiffs’ facts, witnesses and evidence in support of each cause of action. Nor does Universal in its motion show that plaintiffs served factually devoid responses to any such discovery. [Id.]
Plaintiffs’ conspiracy-to-defraud and concert-of-action claims allege that: all products defendants (including Universal) acted as one another’s agents; knew of the health hazards stemming from human exposure to asbestos as early as 1924; suppressed and misstated the information when there was a duty to disclose and warn of those hazards; and, as a result, Tina Gomez was exposed to the asbestos that caused the mesothelioma that killed her. Those causes of action allege liability upon proof of Ms. Gomez’s exposure to asbestos from any source (and not necessarily from a Universal product). [Id.]

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this medical malpractice case and its proceedings.)

Plaintiff’s Trial Brief Re: CACI 430
MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY OF ARGUMENT

Defendants propose Special Jury Instruction # 1 based on the argument that CACI 430 is incomplete because it does not instruct on reasonable medical probability. To the contrary, in the Sources and Authority listed under CACI Instruction No. 430 ( CACI 430 ), the authors of the jury instruction list Espinosa v. Little Company of Mary Hospital (1995) 31 Cal.App.4th 1304, 1313-1314 ( Espinosa ), a medical malpractice case. In Espinosa, the Second District Court of Appeal ( Second District ) considered, and rejected, arguments identical to those made now by Defendants. This court should reject those arguments as well under the authority and reasoning of Espinosa, particularly as they apply to this personal injury matter.

Further, other CACI jury instructions cover the burden of proof and the degree of proof. Reasonable medical probability means more likely than not. (See, Espinosa, supra, 31 Cal.App.4th at 1316.) CACI instruction no. 400, modified by adding medical under CACI Instruction no. 500, already instructs the jury that the Plaintiff must prove the elements of medical negligence, including causation. CACI instruction no. 200 already instructs the jury on the requisite degree of proof.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

BRIEF FACTUAL SUMMARY

Plaintiffs are informed, believe and thereon allege the following facts:

8. On or about June 19, 2007, Plaintiff Anna A. and Defendant XYZ entered into a written contract of motor vehicle bodily liability insurance which included provisions for bodily injury damages incurred by uninsured motorists. Said contract is titled Interinsurance Exchange of the XYZ Insurance Company Policy (hereinafter the “Policy” ).

9. Pursuant to Insurance Code §11580.2(b), as well as the Policy, each and every Plaintiff is an insured and entitled to benefits under the Policy.

10. The Policy provided coverage for a 2004 BMW 328i (hereinafter “Vehicle” ), and provided for uninsured motorist in the amount of $30,000 perperson, $60,000 each occurrence, with medical payment benefits of $5,000 per person.

11. On or about September 3, 2007, Plaintiffs were involved in an automobile accident due to the fault of an uninsured motorist. Each and every Plaintiff suffered bodily injury as a result of the accident. Consequently, Plaintiffs began medical treatment.

Continue Reading ›

| by

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

Plaintiffs’ Opposition to Dr. David XY’s Demurrer to Fourth Amended Complaint; Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES
THIS COURT LACKS JURISDICTION TO RULE ON DEFENDANTS’ DEMURRERS TO CAUSES OF ACTION ONE AND EIGHT

All Defendants in this action filed Demurrers to Plaintiffs’ Second Amended Complaint (SAC). Their moving papers included Demurrers to Plaintiffs’ First Cause of Action for Wilful Misconduct and Plaintiffs’ Eighth Cause of Action for Negligence. Hearing on the Demurrers took place on June 26, 2008, the Honorable Madeline King presiding. The court overruled all defendants’ Demurrers to plaintiffs first and eighth causes of action. A Notice of Ruling was served on all parties on June 27,2008. Defendant Dr. XY did not file an Objection to the Notice of Ruling. Plaintiffs’ respectfully request that this court take Judicial Notice under Evid Code § 452 (d) of the Notice of Ruling served by plaintiffs wherein item number 3 specifically states that all parties Demurrers to Causes of Action One and Eight were overruled. Plaintiffs further request that the court take Judicial Notice of the Minute Order from the June 26, 2008 hearing.

A. This Court Lacks Jurisdiction Under C.C.P. § 1008.
Code of Civil Procedure § 1008 forbids trial courts from reconsidering orders previously entered by the judge-either their own or those made by other judges–unless made according to this section. Bennett v. Suncloud, (1997) 56 Cal App. 91. Code of Civil Procedure § 1008 provides in part:

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Plaintiffs’ Memorandum of Points and Authorities in Support of Opposition to the Universal Tire & Rubber Company’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication
I. INTRODUCTION
The Universal Tire Company ( Universal ) in moving for summary judgment or, alternatively, summary adjudication ignores that it has the initial burden to prove that plaintiffs lack and cannot obtain evidence in support of at least one essential element of every cause of action. Universal fails to prove that it propounded comprehensive discovery seeking all information in support of plaintiffs’ claims or that plaintiffs provided factually devoid responses. Also, while Universal asserts an absence of evidence of decedent Tina Gomez’s exposure to asbestos from March 1982 to 1983, it ignores her alleged exposure to asbestos from Universal’s products and negligence between 1981 and March 1982. Plaintiffs allege that Ms. Gomez was exposed to asbestos through live-in boyfriend David Plaza who brought home toxic asbestos dust from a Universal service center on West Avenue in Roseville, California ( West Facility ). Universal admits that it owned and operated the West Avenue facility until March 1982, its company-owned stores removed and installed asbestos-containing brakes and Universal controlled the operative details of the work at its company-owned stores. Mr. Plaza did brake work at the West Facility and he came home to Ms. Gomez in a Universal uniform laden with black dust. She shook the dust off his uniforms and washed them once a week. Universal fails to negate or show any lack of proof that Ms. Gomez’s exposure to asbestos while Universal owned the West Facility between 1981 and March 1982 was a legal cause of the mesothelioma that killed her.Univeral’s motion is fatally flawed in other respects. First, Universal ignores that it is liable under a strict products liability theory because its role as an installer and seller of asbestos-containing brakes places it in the vertical chain of distribution of a defective product. Second, Universal offers no admissible evidence to support its claim that, as a franchisor, it did not control the operative details of the work at the West Facility.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

Complaint for Damages: 1) Breach of Contract; and 2) Breach of Implied Covenant of Good Faith and Fair Dealing
GENERAL ALLEGATIONS

1. Plaintiff ANNA A. (hereinafter “Anna” ) is, and at all times mentioned herein, was an individual and a resident of the County of Sacramento, State of California.

2. Plaintiff SUZY B. (hereinafter “Suzy” ) is, and at all times herein, was an individual and a resident of the County of Sacramento, State of California, and is one of Anna’s daughters.

3. Plaintiff VICKIE C. (hereinafter “Vickie” ) is, and at all times mentioned herein, was an individual and a resident of the County of Sacramento, State of California. Vickie is also a daughter of Anna. Unless specifically referred to by name, each of the above mentioned plaintiffs will be collectively referred to herein as Plaintiffs.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

Significantly, the Supreme Court in Byrd held that in Ochoa the injury-producing event was the failure to provide proper medical attention – and that observing the symptoms was sufficient for bystander emotional distress:

The injury-producing event was the failure of custodial authorities to respond significantly to symptoms obviously requiring immediate medical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect, is not necessarily hidden from the understanding awareness of a layperson. (Bird, supra, 28 Cal.4th at p. 919-920.)

Consequently, the Plaintiffs here have properly asserted that the failure to provide proper treatment and viewing the deterioration of Sundari Patel is sufficient to claim bystander emotional distress.

The defense cites Jansen v. Children’s Hospital Medical (1973) 31 Cal.App.3d 22, the Court of Appeal held that a parent cannot claim bystander emotional distress for merely learning of the medical injury after the death of the child. She [the mother in Jansen] later learned that her child’s death was due to the failure to diagnose a penetrating duodenal ulcer. (Ochoa, supra, 39 Cal.3d at p. 167.) In contrast here, the husband and sister directly viewed a continuing injury in progress for hours. The husband and sister did not learn of the injury after the event.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

FOURTH CAUSE OF ACTION
(Wrongful Termination in Violation of Public Policy, by All PLAINTIFFS Against All Defendants)

48. PLAINTIFFS repeat and reallege the allegations contained in paragraphs 1 through 47, and incorporate the same by reference as though fully set forth herein.

49. On or around September, 1998, PLAINTIFFS were terminated from their employment as a result of defendants’ retaliation in response to PLAINTIFFS having protested unlawful sexual harassment and sex discrimination in the workplace.

50. It is the public policy of the State of California, as expressed in Article I, Section 8 of its Constitution and in the California Fair Employment and Housing Act, federal statutory law and in common law that individuals shall not be harassed or discriminated against in their employment on the basis of sex or religion.

51. As a direct and proximate result of PLAINTIFFS’ termination by DEFENDANTS, and each of them, in violation of the public policy of the State of California, PLAINTIFFS have suffered and will continue to suffer pain and suffering, and extreme and severe mental anguish and emotional distress; PLAINTIFFS have suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. PLAINTIFFS are thereby entitled to general and compensatory damages in amounts to be proven at trial.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

DISPARATE TREATMENT CLAIM

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

More significantly, Ms. Smith’s supervisor, Sam White, who Plaintiff will testify was completely incompetent, frequently absent, and was the person who left her confidential evaluation on the computer screen was never terminated despite his incredibly poor performance.

EQUAL PAY ACT CLAIM
While Ms. Smith worked for Foundation, she suffered wage discrimination as defined by the state and federal Equal Pay Acts. Ms. Smith’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 Rosevillewas paid $6,000 more a year than she was in that same position.
Foundation argue the reason for the pay discrepancy was the male employee’s greater qualifications, but Ms. Smith will testify that the qualifications which actually applied to the job in question were equal; it was the pay that was different.

Continue Reading ›

| by

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)

The defense cites Bird v. Saenz (2002) 28 Cal.4th 910. In Bird, the Supreme Court denied bystander emotional distress to plaintiffs who saw their decedent being briefly rushed through a hospital hallway in respiratory distress. The Supreme Court held that since the plaintiffs were not in the operating room – where a single specific act of negligence occurred – they were not bystanders. However, the the Supreme Court further discussed what can qualify as being a bystander – and visual perception of an impact on the victim is not required:

To be sure, Thing’s requirement that the plaintiff be contemporaneously aware of the injury-producing event has not been interpreted as requiring visual perception of an impact on the victim. A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative. (Wilks v. Hom (1992 2 Cal.App.4th 1264, 1272-1273. (Bird, supra, 28 Cal.4th at p. 916.)

Here the Plaintiffs contemporaneously understood that viewing the decedent’s deterioration was watching injury to a close relative. In Byrd, the Supreme Court discussed Ochoa v. Superior Court (1985) 39 Cal.3d 159:
In that case [Ochoa], a boy confined in a juvenile detention facility died of pneumonia after authorities ignored his obviously serious symptoms, which included vomiting, coughing up blood, and excruciating pain. We permitted the mother, who observed the neglect and recognized it as harming her son, to sue as a bystander for NIED [negligent infliction of emotional distress].

Continue Reading ›