California Case Law Update

Author: Nathan Berkeley

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July 9, 2018 9:00am

EVIDENCE – EXPERT OPINION

Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653

Facts and Background

While admitted to the psychiatric unit at Good Samaritan Hospital, plaintiff (an adolescent) alleges he was sexually assaulted by his roommate.  In response, plaintiff brought the an action against the hospital, alleging it was negligent in placing plaintiff in the same room as his alleged offender and limiting surveillance to 15-minute intervals.

Prior to trial, the defendant moved for summary judgment, arguing it met the applicable standard of care in supervising and ensuring the safety of its patients in the psychiatric wing. In support of its motion, defendant filed a declaration from an “expert” nurse, to support defendant’s contention it acted in a reasonable manner and met the applicable standard of care. The trial court granted summary judgment for defendant, finding plaintiff did not provide any evidence to rebut defendant’s expert testimony.

Holding

The Court of Appeal reversed the trial court’s ruling, with instructions for an order denying defendant’s motion for summary judgment. In explaining its ruling, the Court noted the complexity of the issues associated with the subject case and how the opinions of defendant’s expert nurse failed to differentiate between multiple issues, and contained conclusions and opinions not supported by the underlying evidence presented in support of defendant’s motion. Citing previous case law, the Court explained “an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.”

 

INSURANCE – DUTY TO DEFEND

Albert v. Truck Ins. Exchange (2018) 23 Cal.App.5th 367

Facts and Background

Plaintiff, Shelly Albert, was sued for private nuisance by her neighbor, Henri Baccouche, as a result of erecting a fence partially blocking the only road to her Baccouche’s undeveloped property. Upon being served, with Baccouche’s complaint, plaintiff tendered the matter to her homeowners and umbrella Insurance carriers but each declined to provide a defense.

Plaintiff sued her homeowners carrier and lost at trial and on appeal. Thereafter, plaintiff commenced an action against her umbrella carrier, defendant, Truck Insurance Exchange.  Prior to trial, plaintiff and defendant brought competing motions for summary judgment.  The trial court granted defendant’s motion for summary judgment, and denied plaintiff’s cross-motion for summary adjudication. On appeal, plaintiff argued Baccouche’s complaint created the potential for coverage under her umbrella policy’s personal injury coverage because it “arose out of wrongful entry or invasion of the right of private occupancy.”

Holding

The Court held coverage for “invasion of right of private occupancy” extends to any claim in which the policy holder interferes with the use and enjoyment of another’s property, explicitly disagreeing with the Court of Appeal for the Fourth Appellate District, in Sterling Builders, Inc. v. United National Ins. Co., which defined “invasion” as a physical interference ((2000) 79 Cal.App.4th 105). The Court reasoned an “invasion of the right of private occupancy” closely resembles the definition of nuisance and there is no requirement that the “invasion” itself be a physical invasion of the land.

A non-physical invasion on one’s real property rights, which interferes with any use and enjoyment of real property, is sufficient to create a potential for coverage under plaintiff’s umbrella policy. Therefore, “the personal injury provision of [plaintiff]’s umbrella policy potentially covered Baccouche’s allegations, and [defendant] breached its duty to defend by not providing [plaintiff] with a defense in the underlying action.” Accordingly, the Court reversed the trial court’s judgment, vacated the order granting defendant’s motion and denying plaintiff’s, and directed the trial court to grant plaintiff’s motion and deny defendant’s.

 

EMPLOYMENT DISCRIMINATION

Abed v. Western Dental Services, Inc. (2018 – Certified for Partial Publication) 233 Cal. Rptr. 3d 242

Facts and Background

California’s Fair Employment and Housing Act (FEHA) seeks to prohibit employment discrimination based on race, religion, disability, sexual orientation, age, and other related medical conditions, including pregnancy. In the operation of its dental offices, defendant, Western Dental Services, Inc. (“Western Dental”) accepts student externs from schools with dental assistant programs. In May of 2015, plaintiff, Ada Abed, accepted a extern position at Western Dental’s Napa location.

While externing at Western Dental, co-workers began to suspect plaintiff was pregnant. Though she was not showing, pre-natal vitamins were observed in plaintiff’s purse. Plaintiff’s supervisor, Sabrina Strickling, after learning of the possibility of plaintiff’s pregnancy, incorrectly informed plaintiff that no jobs were currently available at Western Dental’s Napa location. As a result, plaintiff did not apply for a dental assistant position with Western Dental. Two short weeks after plaintiff’s externship ended, another extern was hired for a position, which had been posted during the time plaintiff was continuing her externship.

Plaintiff filed suit for a violation of FEHA, and Western Dental moved for summary judgment on the grounds that plaintiff failed to make a prima facie case because she never applied for a dental assistant position with Western Dental. The trial court entered summary judgment in favor of Western Dental, holding that plaintiff’s claim was barred as a matter of law.

Holding

The Court of Appeal held that a formal application for employment is not required for a violation of FEHA, and reversed the trial court’s grant of summary judgment, allowing plaintiff’s claims to proceed to trial.  Although actually applying for a job is normally a prerequisite for establishing a prima facie violation of FEHA, when an employer misrepresents the availability of a job, a typical person will choose to skip the application process.

The Court reasoned employers who lie about the existence of open positions should not be immune from liability because they are effectively keeping protected classes of persons from applying for various positions. Additionally, the authority of the employee making the subject misrepresentation to hire, fire, or discipline, is immaterial.  So long as the misrepresenting employee’s conduct or statements “played a key role” in “thwarting” the plaintiff’s prospective application by misrepresenting no job was currently available, an employer can be held liable.

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