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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.)

Plaintiff Tammy Greene’s Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Tax Costs
INTRODUCTION

As the court is well aware, this was a very serious automobile injury, disputed liability case, with a major defense mounted by defendant Li. To boil defendant’s Motion to Tax Costs down to its essence, Li complains that plaintiff’s expert witness presentation was too expensive and the court should therefore not exercise its discretion to award expert witness fees pursuant to Code of Civil Procedure §998. What Li’s motion fails to point out is that the defense experts charged even higher fees, as is reflected in the trial transcript. Just to cite one example, defense expert witness Walter Brown, who testified all of 15 minutes at trial, and charged well in excess of $10,000 for his services in rendering an opinion as to whether the lights were on or off on the plaintiff’s Lexus. Had defendant been the prevailing party in this case, there is little doubt they would have been asking for expert witness costs well in excess of the amount requested on plaintiff’s cost bill.

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 elder abuse lawsuit and its proceedings.)

Plaintiff Sabrina White’s Memorandum of Points and Authorities in Opposition to the Motion By Defendant XYZ Care LLC for Summary Adjudication of Issues

Plaintiffs submit the following memorandum of points and authorities in opposition to the motion by Defendant XYZ Care, LLC (hereinafter, XYZ Care ) for summary adjudication.

INTRODUCTION AND SUMMARY OF ARGUMENT

The motion by Defendant XYZ Care for summary adjudication must be denied because it is ill conceived and procedurally, legally and factually defective. The defects in the motion and moving separate statement are such as to violate clearly stated standards for motion for summary adjudication, and must lead to denial of the motion.

The motion is based solely upon plaintiffs’ purported “factually devoid” responses to special interrogatories. While Plaintiffs recognize that under certain circumstances factually devoid discovery responses may establish proper grounds for summary adjudication, XYZ Care’s motion fails in its initial burden to demonstrate any lack of evidence to support Plaintiffs’ claims simply because the discovery responses upon which the motion relies contain references to pages of facts and evidence which purportedly support Plaintiffs’ claims for which Defendant seeks summary adjudication.

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 birth injury lawsuit and its proceedings.)

Defendant David Lee, M.D.’s, Notice of Motion and Motion for Summary Judgment, pursuant to Code of Civil Procedure § 437c, as to Plaintiff Sean Brown’s Complaint.

This Motion is brought on the grounds that the complaint has no merit as to moving defendant; further, no act or omission to act by Dr. David Lee caused or contributed to any injuries or damages alleged by plaintiff.

In the alternative, Defendant David Lee will move for summary adjudication, pursuant to Code of Civil Procedure § 437c, subd. (f), as to the following claim set forth in Plaintiffs Complaint on the following grounds:

Issue Number One: Timeliness of Plaintiff’s Complaint

Plaintiffs Complaint has no merit because Plaintiff fails to establish the elements necessary for a timely medical malpractice claim for personal injuries sustained before or in the course of birth. Pursuant to Code of Civil Procedure § 340.4, Plaintiff, born on XX/XX/2001, should have filed his Complaint on or before July 26, 2007, in order to be considered timely. The complaint was not filed until October 22, 2007.

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’s Opposition to Defendant Susan Lee, M.D.’s Motion to Strike Punitive Damages from First Amended Complaint
INTRODUCTION

On June 16, 2009, at approximately 1:00 p.m. in the afternoon, Defendant Susan Lee, M.D., fell asleep while driving and struck down the Plaintiff, David Hall, with her car as he was jogging on the sidewalk. Dr. Lee caused David to sustain serious and permanent injuries, including: traumatic brain injury, post-traumatic stress disorder, thoracic spine fractures, left fibula fracture, multiple lacerations, severe abrasions (road rash) from his upper back, arms, knees, thighs and toes, and contusions.

As part of her training at National Hospital, Dr. Lee was taught about the dangerous probable consequences of operating a motor vehicle while sleepy or fatigued. Despite the training, Dr. Lee, who is to do no. harm as a physician, left National Hospital where she had been working and awake for at least 18 consecutive hours, and drove home in a sleepy and fatigued condition. She was significantly impaired and unable to drive home safely.

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 personal injury lawsuit and its proceedings.)

Defendants Barbara Smith, M.D. and the XYZ Perinatal Medical Group, Inc.’s Demurrer to Plaintiff Joan White’s Complaint.

PLEASE TAKE NOTICE that defendants Barbara Smith, M.D. and XYZ PERINATAL MEDICAL GROUP, INC., will and hereby do Demur to plaintiff’s Complaint on the following grounds:

1. The Second Cause of Action for Wrongful Life seeks non-recoverable damages and fails to state facts sufficient to state a cause of action, and is uncertain;

2. The Third Cause of Action for Willful Misconduct fails to state facts sufficient to state a cause of action, and is uncertain.

This Demurrer will further be based upon this notice, the attached Memorandum of Points and Authorities, all records and pleadings on file herein, and any other further oral and/or documentary evidence as may be presented at the time of this hearing of this Demurrer.

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 traumatic brain 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.)

FACTS REGARDING WITNESSES’ OBSERVATIONS OF DR. BROWN IN PARAGRAPH 13 SUPPORT PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES

Dr. Brown seeks to strike the following allegations from Paragraph 13, Page 3, line 27 to Page 4, line 2 of the Complaint:

Witnesses at the accident site described Melissa Brown, M.D., as being dazed and confused, and acting like a spectator who did not understand what was going on.

Without any supporting authority, Defendant simply claims these allegations “add nothing to the elements of the complaint or the allegations of punitive damages and should be stricken.” Facts pertaining to witness observations at the scene are relevant to, inter alia, issues of Dr. Brown’s egregious conduct and how impaired she was at the time of the incident. This fact helps establish that Dr. Brown drove a vehicle with a willful and conscious disregard of the rights or safety of others, including David Hall. Plaintiff’s factual allegations describing Dr. Brown at the scene are integral to the negligence causes of action in the Complaint and Plaintiff’s prayer for punitive damages. Defendant’s vague objection hardly justifies striking this salient fact.

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 traumatic brain 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.)

Dr. Brown’s Reliance on Cases After Judgment or Verdict Is Misplaced – Plaintiff Need Not Prove That He Should Be Awarded Punitive Damages at The Pleadings Stage

Dr. Brown relies on Ebaugh v. Rabkin, (1972) 22 Cal.App.3d 891, and Nolin v. National Convenience Stores, Inc., (1979) 95 Cal.App.3d 279, which are not applicable to David Hall’s Complaint. Ebaugh concerned the reversal of a jury’s award of punitive damages because the evidence was insufficient to support the verdict for punitive damages against the employee and employer.

There was also prejudicial error because one of the jury instructions permitted punitive damages against the employer if it found the employee was acting in a willful, reckless or wanton manner without regard to the employer’s conduct in directing or ratifying the employee’s actions. Id. at .895-896. Nolin also involved affirming a jury verdict awarding punitive damages against an employer for the actions of an employee. Ebaugh and Nolin do not apply to this stage of the litigation since they were appeals of a jury verdict at trial. The standard for meeting the burden of proof to overturn a jury verdict is certainly different from the notice pleading requirements of California law.

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 medical malpractice lawsuit and its proceedings.)

SYMPATHY PLEAS ARE IMPROPER AND VIOLATE THE LAW

Whether or not following this incident defendant Green was remorseful, depressed, or in any other way was upset over this incident and its consequences is irrelevant to any issue in this case, and any evidence of it or argument would be unduly prejudicial and involve an undue amount of time to rebut. Any plea of sympathy for Defendant Green is improper because it asks the jury to violate the law and their oath to judge the case based on the evidence presented to them and without regard to sympathy for any party. While such a plea can be cleverly worded and disguised in its presentation, it is still inadmissible and improper and should not be allowed by this Court.

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

EVIDENCE CODE § 352 MANDATES EXCLUSION OF SYMPATHY PLEAS. AS IT WOULD RESULT IN PREJUDICE TO PLAINTIFF. CONFUSION OF THE ISSUES. AND WOULD MISLEAD THE JURY SUCH THAT ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE
This Court has the discretion to exclude prejudicial evidence. California Evidence Code § 352 provides that:

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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.)

In Galanek, the court reiterated a maxim of jurisprudence that is apropos here: A fundamental principal of our legal system is that “no one can take advantage of his own wrong,” citing Civil Code section 3517. Galanek v. Wismar at 1428. Similarly here, XYZ, Ins. Co., cannot be allowed a procedural advantage on liability due to its destruction of critical evidence.

Unlike the cases of inadvertence above, here XYZ, Ins. Co., did not lose or misplace evidence – it consciously destroyed it, knowing that this was a serious injury claim and that litigation was likely to follow. Further, XYZ, Ins. Co. misrepresented to plaintiff’s counsel that the Brown vehicle had never been inspected by their experts, when in fact such an inspection had taken place weeks before. And moreover, XYZ, Ins. Co. was placed on written notice within six weeks from the date of this accident that plaintiff demanded that the Brown vehicle be preserved for inspection by experts. As the law makes clear: [T]he court has broad powers … to make whatever just orders are necessary to remedy the spoliation. Cedars-Sinai, supra, 18 Cal.4th at 8 (emphasis added). This court should exercise those powers and grant the relief sought so that Ms. Black is not severely prejudiced from recovering the full measure of her damages from defendants for her severe injuries.

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

Continue Reading ›

| by

It is worth noting that situations similar to those described in this traumatic brain 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 HAS PLED SUFFICIENT FACTS TO JUSTIFY SEEKING PUNITIVE DAMAGES IN PARAGRAPH 39 AND SETTING FORTH THE PRAYER FOR SUCH RELIEF
Plaintiff Has Met the Notice Pleading Requirement Under California Law

As established above, under California’s notice pleading requirement, Plaintiff has only to plead ultimate facts sufficient to apprise Defendant of the basis upon which Plaintiff is seeking relief. Paragraphs 6-7, 12-14, 29, 32, 34-35 and 39 of Plaintiff’s Complaint contain sufficient factual allegations regarding Dr. Brown’s actions that amount to despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Cal. Civ. Code § 3294.)

Plaintiff’s allegations against Dr. Brown that give rise to punitive damages are consistent with Roth v. Shell Oil Co. (1960) 185 Cal.App.2d 676 and Fick v. Nilson (1950) 98 Cal.App.2d 683, as they are based on facts and not speculation. Plaintiff has alleged that Defendant worked excessive hours as a resident atUniversal Hospital, worked an overnight shift the night of the incident, knew or should have known that driving home while fatigued and sleep-deprived could result in dangerous harm to others, drove home in a fatigued and sleep-deprived condition and caused her vehicle to mow down Plaintiff. Plaintiffs allegations are rooted in facts, not conjecture.

What the eyewitnesses said is factual, not speculative. The allegation regarding what the witnesses observed in Paragraph 29 is taken directly from the statements witnesses provided to police officers at the scene of the incident. That allegation is rooted in fact, not conjecture and supports Plaintiff’s notice pleading regarding punitive damages.

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

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