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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

Further, the case law cited by Dr. Lee does not support her argument that negligence or recklessness is insufficient to warrant punitive damages. Defendant’s citation, to Tomaselli v. Transamerica Ins. Co., (1994) 25 Cal.App.4th 1269 actually supports Plaintiff’s claim. The Court in Tomaselli held that punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. Id. at 1287.

In this case, Dr. Lee’s actions of driving while asleep, when she knew or should have known of the dangerous probability of causing a motor vehicle accident, Were reprehensible. She knew that she was fatigued. She was trained to avoid driving while fatigued. She likely dozed off while driving before falling asleep – yet she continued to drive the trip from Sacramento to El Dorado Hills. She also blatantly violated multiple motor vehicle safety codes and a regulation prohibiting the operation of a vehicle while the driver’s alertness is impaired by fatigue. See 13 C.C.R. 1214. Dr. Lee should not have operated the motor vehicle under the conditions, and her decision to do constitutes malice and oppression.

Since Plaintiff’s allegations are based on facts and not speculation, the present case is consistent with the decisions cited in Defendant’s moving papers, i.e., College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 [plaintiffs failed to plead facts regarding defendants’ intent to injure or facts of vile or despicable conduct]; Colonial Life &Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 792 [a defendant may be liable for punitive damages if it acts with a conscious disregard of the plaintiff’s fights]; Lackner v. North (2006) 135 Cal.App.4th 1188 [summary adjudication of plaintiff’s punitive damages claim was proper since plaintiff’s evidence failed to show defendant acted despicably].

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

PLAINTIFF’S COMPLAINT IS BARRED BY THE STATUTE OF LIMITATIONS

Code of Civil Procedure § 340.4 provides in part:

“An action brought by or on behalf of a minor for personal injuries sustained before or in the course of his or her birth must be commenced within six years after the date of birth, and the time the minor is under any disability mentioned in Section 352 shall not be excluded in computing the time limited for the commencement of the action.” Conversely, Code of Civil Procedure § 340.5 indicates that actions against a health care provider by a minor shall be commenced within three years from the date of the alleged wrongful act-except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.

To clarify such statutory inconsistencies, the Supreme Court has held that the general rule is that when a general and particular provision [is] inconsistent, the latter is paramount to the former. Young v. Haines (1986) 41 Cal. 3d 883. The Court in Young, ultimately applied Code of Civil Procedure § 340.5 to Plaintiffs claim for birth injuries. However, the specifically applicable to birth-related injuries statute, Code of Civil Procedure § 340.4, had yet to be enacted. The present case is dissimilar to Young as that case involved potential allegation of intentional concealment of birth-related injuries, whereas, the instant case does not contain any such allegations.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

DEFENDANT’S STATEMENT OF ISSUES IS DEFICIENT AS TO THE CLAIM FOR WILFUL MISCONDUCT AND ACCORDINGLY THE MOTION AS TO THAT CLAIM MUST BE DENIED

In a motion for summary adjudication, the moving party must specifically state in their motion and Separate Statement the specific causes of action, defenses, issues of duty and or claims of damages upon which summary adjudication is sought. Moreover, a defendant bringing a motion for summary adjudication “must … show one or more elements of a cause of action cannot be established.” Marron v. Superior Court (2002) 104 Cal.App.4th 388, 392. The purpose of the Separate Statement is to inform the opposing party of what issues and undisputed material facts they must address in order to defeat the motion. Elcome v. Chin (2003) 110 Cal.App.4th 310, 322.

Where a remedy as drastic as summary judgment is involved, due process requires a party to be fully advised of all the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

PLAINTIFF HAS PLED SUFFICIENT FACTS TO ESTABLISH THAT DR. LEE’S CONDUCT WAS DESPICABLE AND WITH A WILLFUL AND CONSCIOUS DISREGARD FOR THE SAFETY OF PLAINTIFF

Plaintiff seeks punitive damages against Dr. Lee pursuant to Civil Code Section 3294, which states in pertinent part:

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(c)(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(c)(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

THE SEPARATE STATEMENT’S FAILURES TO COMPLY WITH RULE 3.1350 SHOULD LEAD THE COURT TO DENY THE MOTION

The separate statement contains no specific reference to evidence, making the purported facts impossible to affirm or dispute.

Rule 3.1350, California Rules of Court, provides:

(d) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

Instead of setting forth a specific reference to portions of the interrogatories and answers as evidence in support of the claimed undisputed fact, movants were content to generally refer to the discovery responses in general, and to summarize and characterize the evidence. The tactic seems to be to claim the absence of facts by offering movants’ counsel’s summary of discovery.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

ITEM NO. 12 FOR COURT REPORTER FEES IS ALLOWABLE BY STATUTE.

Finally, defendant objects to plaintiff’s cost Item No. 12 for the fees charged by the official court reporter of this trial. At the conclusion of the case, plaintiff submitted a check to the clerk of the court in the amount of $2,483 directly for payment of the official court reporter fees.

Pursuant to Government Code section 68086(a)(1), such a fee was required by statute:

“(a) The following provisions apply in Superior Court:(1) In addition to any other fee required in civil actions or cases, for each proceeding lasting more than one hour, a fee equal to the actual cost of providing that service shall be charged per one-half day of service to the parties, on a prorata basis, for the services of an official court reporter on the first and each succeeding judicial day.” Obviously the services of the official court reporter are required by law and were paid by plaintiff and are therefore recoverable.

CONCLUSION

Here, defendant chose to turn down an eminently fair settlement offer and instead elected to go to great expense in fighting liability and damages in this case by extremely expensive defense expert witnesses. Additionally, defendant wasted substantial court assets and time in insisting upon a two-week jury trial that could have been resolved far less expensively.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury lawsuit and its proceedings.)

THE THIRD CAUSE OF ACTION FOR WILLFUL MISCONDUCT FAILS

The Third cause of action, entitled “Willful Misconduct,” is based on the same allegations as those contained in the First cause of action for medical malpractice. The pleading does not contain the type of allegations of intentional conduct needed to maintain a cause of action for Willful Misconduct.

Willful Misconduct is generally an element within a cause of action or a claim for damages, such as elder or dependent adult abuse or a claim for punitive damages, and it is doubtful that there exists an independent cause of action in California for willful misconduct. Willful misconduct should be categorized as battery, fraud, etc. The plaintiff seems to be attempting to plead some sort of catch-all intentional tort under the title of “Willful Misconduct.”

Nevertheless, in the event that there does exist such a cause of action, plaintiff has failed to set forth facts in regard to the demurring defendants sufficient to maintain the cause of action. In Nazar v. Rodeffer, 184 Cal. App.3d 546, 552 (1986), the court discussed the concept of willful misconduct as follows:

“The concept of willful misconduct has a well-established, well-defined meaning in California law. Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results.”

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

The majority of the new allegations in the First Amended Complaint describe the residency training that Dr. Lee should have heeded in order to avoid causing the subject incident. Dr. Lee was provided training at National Hospital, prior to the incident, about the specific risk posed to the public by fatigued or sleep-deprived medical residents. The article “Extended Work Shifts and the Risk of Motor Vehicle Crashes Among Interns” published by the New England Journal of Medicine on January 13, 2005, was just one of many scientific journal articles offered to Dr. Lee on the subject. The collective information regarding Dr. Lee’s training is directly relevant to the action and establishes the fact that Dr. Lee was acutely aware of the dangerous risks posed to the public, including Plaintiff, by driving home in a fatigued or sleepy condition after being awake for a continuous 18 hours. Plaintiff has sufficiently, and with much detail, alleged the various ways in which Dr. Lee acted with malice and oppression by disregarding her training on a multitude of levels.

The present case is highly distinguishable from Austin v. Regents of Univ. of California (1979) 89 Cal.App.3d 354, where the Court held, … the allegations in plaintiff’s complaint are purely conclusory. Here, Plaintiff’s First Amended Complaint is replete with facts establishing how Dr. Lee acted with a willful and intentional decision to operate a motor vehicle in a fatigued, sleepy and impaired condition. Her conduct was despicable in light of her residency training at National Hospital. Also, National Hospital provides its residents with alternative means of travel, such as a shuttle, bus, or taxi vouchers, but Dr. Lee willfully and knowingly chose to drive home with a conscious disregard of the rights or safety of Plaintiff and the public.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury lawsuit and its proceedings.)

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This lawsuit arises out of an accident that occurred at a crosswalk for southbound Freedom Avenue near 35th Street on July 6, 2008. At the time of this accident, Plaintiff Donna Lee (“Lee”) was struck while jogging in the subject crosswalk by a car driven by co-defendant Matthew Black (“Black”). As a result of being struck by the car driven by defendant Black, Plaintiff Donna Lee sustained severe head and traumatic brain injuries that resulted in her being in a coma for several weeks. Ms. Lee filed a First Amended Complaint in which both the City of XYZ (“City”) and Black were named as defendants. Plaintiff asserts a claim against the City for dangerous condition of public property pursuant to Government Code Section 835.

Plaintiff Lee served her expert designation on January 7, 2010. Plaintiff has designated Robert Gold, P.E., a traffic engineer, to testify as to issues of traffic engineering and transportation planning. Mr. Gold’s deposition was taken on February 2, 2010. The opinions provided by Mr. Gold were based on assumptions of fact without evidentiary support and pure speculation. As such, his opinions have no evidentiary value and should be excluded from evidence.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this birth injury case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

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

THE CARE AND TREATMENT RENDERED BY DR. LEE DID NOT CAUSE OR CONTRIBUTE TO PLAINTIFFS’ INJURIES

In California, the substantial factor test defines the scope of conduct subject to liability, i.e., conduct which is a cause in fact of a plaintiff’s claimed injury or harm. That test was set forth in Mitchell v. Gonzales (1991) 54 Cal.3d 1041. A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. (Id. at 1052-1053.)

The element of causation is satisfied in a medical malpractice case when a plaintiff produces sufficient evidence to allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. (Alef v. Alta Bates Hospital (1992) 5 Cal.App. 4th 208, 216.)

Plaintiffs cannot prove medical causation. Dr. Black’s opinion is to a reasonable degree of medical probability that none of the actions or inactions by Dr. Lee caused or contributed to any injury claimed by the minor plaintiff, Sean Brown.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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