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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.)

What is particularly egregious about XYZ ‘s failure to timely file and serve this motion is that XYZ attempted to have similar motion heard, ex parte, on December 4, XYZ withdrew the motion when its motion to continue the trial date was granted. Still, it is not as though this defendant, whose counsel swore that the proposed motion was attached to a declaration filed on March 25, was prompted by surprise or urgency in drafting this motion.

XYZ had a draft of the motion ready to file on December 4, 2009, and proposed version to attach to a declaration on March 25, yet the defendant declined to file and serve the motion until after the statutory deadline.

XYZ ‘s motion raises no minor issue. The defendant seeks to exclude the entirety of certain of the plaintiffs experts’ testimony before any party has even heard the substance of the testimony. XYZ claims excessive consumption of time (a claim which is proved false herein), yet the same defendant could not manage to provide the court and opposing counsel with adequate notice.

The court should deny XYZ ‘s motion for failure to comply with C.C.P. §1005(b) if not also for the substantive reasons stated below.

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 wrongful death 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 action and its proceedings.)

Moreover, the Wheeler court stressed that even a favored arbitration provision in an adhesion contract cannot be enforced unless it was knowingly and voluntarily entered into by both parties. It emphasized, “… notwithstanding the cogency of the policy favoring arbitration and despite frequent judicial utterances that because of that policy every intendment must be indulged in favor of finding an agreement to arbitrate, the policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate.” Wheeler, supra, 63 Cal. App. 3d at 356.

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

Key to this analysis is the requirement that in order to be enforceable, terms in an adhesion contract must be of a type that the parties to such an agreement would reasonably expect to find in the contract. As the Bruni court explained, “ … a provision contained in [an adhesion] contract cannot be enforced if it does not fall within the reasonable expectations of the weaker or adhering party.” Bruni, supra at 1289. The Wheeler court pointed out that reasonable expectations of the hospital patient presented with an admission form are significantly different that those of one in a business or employment setting, stating, “… insofar as awareness is concerned, the atmosphere of the employer’s office … is a far cry from that of a hospital admission room.” Id at 363. It further explained, “A patient like Mr. Wheeler realistically has no choice but to seek admission to the hospital to which he has been directed by his physician and to sign the printed forms necessary to gain admission. To posit otherwise would require us to ignore the stress, anxiety, and urgency which ordinarily beset a patient seeking hospital admission.” Id at 366.

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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 Anna Brown’s Objection and Opposition to Defendant XYZ Tire, Inc.’s Motion for a Protective Order Limiting the Number of Plaintiffs’ Experts
PRELIMINARY OBJECTION

Defendant XYZ Tire, Inc., failed to give adequate notice, or to file its motion, according to the deadlines provided in California Code of Civil Procedure Section 1005(b). C.C.P. §1005(b) requires that the defendant’s motion and supporting papers be filed and served at least 16 court days before the hearing. The hearing is scheduled for April 23, but the moving papers were filed on April 2, only fourteen (14) court days before the hearing. The moving papers, delivered by express mail, should have been served no later than March 28. Instead they were served on Friday, April 2, and delivered on Monday, April 5, more than a week after plaintiffs’ counsel should have received them.

On March 26, XYZ brought an ex parte application to schedule the hearing on this motion for a date between April 16 and April 23, 2010. XYZ ‘s counsel did not request an order shortening time. To the contrary, defense counsel Allison Greene observed that the motion could be served with “normal notice.”

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.)

MRI STUDIES OF MRS. WHITE CONDUCTED POST-ACCIDENT FOUND DIFFUSE WHITE BRAIN MATTER LESIONS CONSISTENT WITH TRAUMATIC BRAIN INJURY cont.

There is a conflict of evidence as to whether Mrs. White told the ER doctor that she hit her head in the accident. Mrs. White was examined, given pain medications treated and released from the emergency room and told to see her family doctor.

On January 28, 2008, Mrs. White was seen by Dr. Olden who diagnosed her head pain as mild post-traumatic concussion. When her head pain persisted and she reported numbness in her face and drooling, an MRI study of her brain was done on May 22, 2008.

There is no dispute that the MRI studies in this case have documented that Mrs. White’s brain has a diffuse bilateral small to moderate white matter lesions. After reviewing the May 22nd MRI, Dr. Olden concluded that the white brain matter lesions were most consistent with axonal shear injuries in the brain.

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 action and its proceedings.)

DR. HILL’S PERSONAL OPINIONS ARE NOT RELEVANT TO THE ISSUES IN THIS CASE
Evidence Code, § 350 states:

No evidence is admissible except relevant evidence.

Evidence Code, § 351states:

Except as otherwise provided by statute all relevant evidence is admissible. Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence ….” (Evidence Code § 210.) The test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it. (People v. Peggese (1980) 102 Cal.App.3d 415, 420; People v. Yu (1983) 143 Cal.App.3d 358, 376.)

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

The most accepted test of relevancy is: Does the evidence offered render the desired inference more probable than it would be without the evidence? (Ruiz v. Minnesota Mining & Manufacturing Co. (1971) 15 Cal.App.3d 462, 468.)

Dr.Hill’s personal opinions as to why he believes he has testified on behalf of plaintiff more often in the last five years is not relevant to any of the issues in this case. Such testimony does not impact any of his opinions regarding the medical issues or evidence, and does not add anything to support his expert testimony on the medical issues. This testimony, Dr.Hill’s personal opinions, does not make the purported “chill” or “shift in attitude” more probable than it would be without such testimony.

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It is worth noting that situations similar to those described in this wrongful death 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 action and its proceedings.)

In contrast, in our case, the analysis is not burdened by the policy favoring arbitration. Instead, there are at least two strong public policies weighing against the clause’s enforceability that must be taken into account: one disfavoring exculpatory provisions in hospital admission agreements purporting to limit liability without clear explanation to the patient; and another favoring the availability of essential medical services to all patients in order to serve the public interest. See Id.

See also, Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal. App. 4th 158, 161-162 (Explaining, “…the hospital patient contract clearly falls within the category of agreements affecting the public interest” while distinguishing releases signed by participants in sports or recreational activities, because “… athletic or recreational activities, however enjoyable or beneficial, are not essential, as a hospital is to a patient” [citing Tunkl, supra at 92]); see also Health Net of California, Inc. v. Dept. Of Health Services (2003) 113 Cal. App. 4th 224, 237 (wherein the court, citing Tunkl, concluded that “… an exculpatory clause that is part of a transaction that provides managed health care for Medi-Cal beneficiaries affects the public interest.”); City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 762. (See Part 7 of 9.)

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.)

A motion in limine seeking to preclude any reference to corporate defendant’s nonprofit status was properly granted where such status was not relevant to the issues and might improperly curry favor with the jury. See Notrica v. State Comp. Ins. Fund (1999) 70 Cal. App. 4th 911, 933-935. As such, the mere mention of plaintiff being a “war hero” or any derivative thereof is substantially prejudicial to the defendants as a jury may be inclined to gamer sympathy and thereby obtain an award to plaintiff solely because of his status as a war hero and not based upon whether or not XYZ was responsible in any manner for the accident or the extent of the injuries sustained in the August 25, 2008 accident. Therefore, pursuant to Evidence Code §352, such evidence must be excluded from trial.

Finally, evidence pertaining to Mr. West being a veteran of WWII and being involved in two of the most well known military battles is not admissible as character evidence for two reasons. First, evidence of character, other than for honesty, is inadmissible to attack or support the credibility of a witness. Evidence Code §786. Here, Mr. West’s military history does not in any way demonstrate his propensity to tell the truth. Second, even if it did, evidence of a witness’s good character for credibility is inadmissible unless evidence of the witness’s bad character has first been admitted. Evidence Code §790. As such, Mr. West military history must also be excluded as improper character 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 wrongful death 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 action and its proceedings.)

Perhaps nowhere is the import of these principles more apparent than in the context of the hospital emergency room (ER). California law has long held that especially where, as here, a patient arrives at the ER in a condition impaired by a serious injury or illness, hospital admission forms purporting to circumscribe the hospital’s liability constitute adhesion contracts. As the California Supreme Court recognized in Tunkl v. Board of Regents (1963) 60 Cal. 2d 92, 93 The would-be patient is in no position to reject the proffered agreement, to bargain with the hospital, or in lieu of agreement to find another hospital.

The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract. As a result, we cannot but conclude that the instant agreement manifested the characteristics of the so-called adhesion contract … ” Id at 102; see also Wheeler, supra, 63 C.A.3d at 357 (wherein the court, relying on Tunkel, held that a hospital’s standard printed “Conditions of Admission” constitutes an adhesion contract, especially because a patient being admitted to a hospital is in no position to debate his or her terms of admission).

Significantly, while the admission agreement in Tunkl involved a clause purporting to waive liability, Wheeler involved an arbitration clause-a provision freighted with public policy concerns favoring its application.

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.)

Evidence Code §352 allows a Court to exclude otherwise relevant evidence where there is a substantial danger that the probative value of the inclusion of such evidence will be outweighed by the danger of undue prejudice. People v. Cardenas (1982) 31 Cal. 3d 897, 904. As the Court in Cardenas further explained, §352 provides grounds for excluding evidence that is inflammatory. 5 Id. at 906. Section 352 requires that the trial Judge to balance the probative value of the offered evidence in comparison to its potential of prejudice, undue consumption of time and confusion. Jefferson, Cal. Evidence Benchbook (1972) comments, §22.1, pg. 288.

The California Supreme Court elaborated on what undue prejudice connotes and explained such as evidence that carries with it a danger of evoking emotional bias against a defendant while offering little probative value. People v. Gionis (1995) 9 Cal. 4th 1196, 1214. Similarly, evidence that would confuse the issues or work to mislead the jury should be excluded pursuant to Section 352. People v. Milner (1988) 45 Cal. 3d 227, 238; Ehrhardt v. Brunswick, Inc. (1986) 186 Cal. App. 3d 734, 740.

In the instant case, self serving statements pertaining to plaintiff’s military service or any evidence that plaintiff was a war hero or any derivative thereof is pure character evidence being offered for the explicit purpose of evoking sympathy for plaintiff in the minds of the members of the jury.

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 action and its proceedings.)

THE COURT HAS INHERENT POWER TO PROVIDE FOR THE ORDERLY CONDUCT OF ITS PROCESS AND PROCEEDINGS AND TO CONFORM THEM TO THE LAW AND JUSTICE

California Code of Civil Procedure § 128, provides in part as follows:

(a) Every court shall have the power to do all the following …(3) To provide for the orderly conduct before it, or its officers.A. To amend and control its process and orders so as to make them conform to law and justice. The court’s power to grant this motion in limine, while not provided for by statute, is found in the court’s inherent power to provide for the orderly conduct of the proceedings before it and to control its process and proceedings to make them conform to law and justice. A trial judge has broad authority over the admission and exclusion of evidence. (Peat Marwick, Mitchell & Company v. Superior Court (1988) 20 Cal. App. 3d 272, 288.)

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

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