The California Legislature is considering a bill (AB 218) which would modify California Code of Civil Procedure § 340.1. Currently, section 340.1 sets the statute of limitation for civil actions involving childhood sexual assault at the date the plaintiff turns 26 years old or three years after the plaintiff discovers (or should reasonably discover) the connection between the abuse and psychological injury, whichever occurs later.
The recently decided Cobb v. Cty. of Los Angeles (Cal. Ct. App. May 1, 2019) No. B287090, 2019 WL 1929976, is a reminder to defense practitioners in California that chance are slim to none for an appellate reversal of a jury’s damages determination. This article will provide practice pointers to defense practitioners to avoid runaway juries by exploring the reasons the Appellate Court in Cobb upheld the seemingly outrageous damages award.
Do not let the term “mild” fool you. The effects of a “mild” traumatic brain injury (“TBI”) can be severe. There are so many definitions of “mild TBI” that if you asked 10 neurologists you would receive 10 different responses. But, the general consensus is a mild TBI is defined as the result of a forceful motion of the head or impact causing a brief change in mental status or a loss of consciousness for less than 30 minutes. These symptoms may not be noticed for days, weeks, or months after the incident; sometimes, even an MRI or CAT scan will show the brain suffered no trauma. Fortunately, there are numerous tactics defense counsel can use when facing a claim for mild TBI.
Last year, the California Supreme Court announced a new standard, known as the “ABC” test for determining whether a worker is an employee or independent contractor in wage and hour cases. (Dynamex Ops. W. Inc. v. Superior Court (2018) 4 Cal. 5th 903). Two weeks ago, the Ninth Circuit Court of Appeals held the Dynamex test applies retroactively in Vasquez v. Jan-Pro Franchising International, Inc. (2019 WL 1945001). As discussed below, the Vasquez decision could have far-reaching economic implications.
General Contractors and their defense counsel love the Privette doctrine, which generally provides an affirmative defense from liability to injured employees of their subcontractors. This is based on the rationale that the hirer indirectly paid into workers’ compensation (that should be furnished by the independent contractor for its employee) as part of the contract price. (Privette v. Superior Court (1993) 5 Cal.4th 689.) However, the Privette doctrine is not absolute and continues to be shaped, with the Court carving out exceptions, leading to increased verdicts against general contractors.
… And Everyone Panics!
As I am sure all California Lawyers are aware, Los Angeles just made the big switch to mandatory electronic filing for Limited Civil on December 3, 2018, and Unlimited Civil on January 2, 2019. This means all civil filings in Los Angeles County Superior Court must be submitted electronically from now on. At the end of this article, I will provide hyperlinks to the resources cited as it is very important all practicing attorneys in the state of California know and understand the new rules of the road.
As defense attorneys, we often feel frustrated by the application of state court rules and the apparent leniency granted to plaintiffs. It is unimaginable to think about blowing a deadline to file a Motion for Summary Judgment (“MSJ”) and then the court allowing you to file it late – this would never be permitted. But for some reason, when plaintiff’s Opposition to the same MSJ is late, or plaintiff needs extra time to conduct discovery (despite having 75 days’ notice of the Motion), courts and judges bend over backwards to accommodate them. By being armed with some case law, we can level the playing field.
In a decision filed on March 14, 2019, a California appellate court held there was no violation of the collateral source rule where expert testimony referencing a plaintiff’s collateral source payments was made to provide a reasonable value of damages and helps the jury with context and background of the issues. (Stokes v. Muschinske (Mar. 14, 2019, No. B280116) Cal.App.5th [2019 WL 1513208].)
Last Frontier Healthcare District v. Superior Court of Modoc County, 33 Cal.App.5th 492
In February of 2017, Jamie Harper underwent surgery to remove her gallbladder at a public hospital. In January of 2018, eleven months after her surgery, she alleged she was permanently injured because of the surgeon’s negligence and served notice to the hospital of her intent to file a medical malpractice action on both the hospital and the surgeon.
While an award of bad-faith damages depends on the nature of the insurer’s conduct and the insured’s injury, counsel should implement damage control to ensure the constitutionality of any damage award. Simply stated, it is far too easy for damage awards to become excessive, and even unconstitutional, without managing the contours of one’s case as applied to the law. Fortunately, the United States Supreme Court has, in assessing many damages but not all, looked to the Constitution in suggesting damage ratios and mandating damage ceilings. The lead has been picked up by California courts, guiding lawyers in determining worst (and best) case damages scenarios for their clients. This article serves as an enabling tool for lawyers with clients in first-party bad-faith insurance cases governed by California law.
Subjective Complaints in Personal Injury Litigation
Traumatic Brain Injury claims are likely just the beginning of an onslaught of “subjective” injury complaints alleged by plaintiffs in personal injury actions. I say subjective because currently, there are no scientifically accepted methods to test a person for a traumatic brain injury (TBI). Sure, you can check imaging results for contusions, lacerations, and changes to the physical structure of the brain; however, approximately 75% of traumatic brain injuries are mild and considered “concussions.” This means many of the TBI claims made by plaintiffs likely cannot be scientifically verified in the same way we can conclusively identify an injury such as a broken bone. Generally, most patients recover from a mild TBI/concussion; however, some patients experience persisting problems related to their head injury. This is where the meat and potatoes for plaintiffs’ attorneys lie: any reference to loss of consciousness, memory problems, moodiness, headaches, depression, anxiety, and general cognitive issues causes dollar signs to flash before plaintiffs’ attorneys’ eyes.
In Linton v. County of Contra Costa (2019) 31 Cal.App.5th 628, plaintiff sued for injuries she sustained when she fell from her wheelchair while riding in a county para-transit van. Plaintiff’s Second Amended Complaint alleged violations of the Disabled Persons Act (California Civil Code § 54 et seq.) and the Unruh Act. (California Civil Code § 51 et seq.) Both causes of action allow for attorney’s fees if liability is proven.
Westport Insurance Corp. v. California Casualty Management Co.
California’s Ninth Circuit recently affirmed that an excess insurer for a California school district had to cover $2.6 million of the total $15.8 million settlement paid by the primary insurer to resolve a case involving three former students’ claims of sexual abuse, finding that the lower court had properly apportioned the settlement between the two insurance carriers.
Olive v. General Nutrition Centers, Inc. (2018) —Cal.Rptr.3d —, 2018 WL 6804361
Plaintiff Jason Olive, an actor and a model, entered a contract with General Nutrition Centers, Inc. (“GNC’) where GNC would use Olive’s likeness in its advertising campaign. Olive sued GNC alleging GNC used his likeness after the expiration of its rights. GNC admitted liability but contested the amount of damages.
When someone causes a personal injury in California and then passes away, the injured victims can file lawsuits against the decedent’s estate to recover damages for their losses. The California Probate Code limits the amount of recoverable damages to the policy limits of the decedents’ insurance covering their liability at the time of the accident. However, a recent decision warns insurance companies if they reject reasonable settlement offers in these cases, they could be on the hook for costs in addition to the policy limits. In Meleski vs. Estate of Hotlen, 29 Cal.App.5th 616, a California Court of Appeal ordered Allstate Insurance to pay costs in addition to the policy limits to a plaintiff who prevailed at trial after the insurance company refused her reasonable settlement offer.
A recent court decision involving claims of alleged defective construction provides guidance for parties entering into all manner of contracts under which they provide a release to the other party of its potential liability for negligence, breach of contract or statutory violations. In short, although releasing another party from liability for potential intentional or negligent conduct is prohibited under California law as against public policy, the prohibition applies only to current or future actions, and not to past conduct, absent appropriate contract language.
The California legislature has enacted several interesting and significant laws which go into effect January 1, 2019. These diverse laws range from areas of employment law/sexual harassment, Cannabis regulation, roadway safety, and environmental health and safety. The following will briefly provide some highlights:
On June 16, 2015, shortly after midnight, the balcony of an apartment complex collapsed killing 6 young people who were attending a 21st birthday party. It was later determined the balcony had shown signs of water damage which was not addressed and that it collapsed as the result of wood rot in structural support beams. In addition to new laws which require contractors and their insures to report judgments and settlements in construction defect cases involving residential rental complexes (California Business & Professions Code Section 7071.20, etc.), as of January 1, 2019, California also requires the periodic inspection of balconies and other structural components in residential rental projects.
Thee Sombrero, Inc. v. Scottsdale Insurance Company (2018) 28 Cal.App.5th 729
In November, the California Court of Appeals expanded the potential basis for property damage claims when it held that property damage and loss of use claims can be based on intangible damage to property.
Thee Sombrero, Inc. (Sombrero) owned a commercial property in Colton, CA. Sombrero obtained a conditional use permit (CUP) allowing its lessees to operate the property as a nightclub. Crime Enforcement Services (CES) provided security services at the nightclub. In 2007, due to non-permitted property modification by CES, there was a fatal shooting at the nightclub. Following the shooting, the CUP was revoked and replaced with a modified CUP, which allowed the property to be operated only as a banquet hall. Revenues from operation of the property as a banquet hall were significantly lower than revenues when it was operated as a nightclub.
The California Court of Appeals recently affirmed a trial court ruling denying an insurer’s leave to amend its complaint after a motion for judgment on the pleadings was granted in favor of the defense. In Travelers Property Casualty Company of America v. Engel Insulation, Inc. (2018) WL6259032, Travelers, the contractor’s insurer, sought leave to amend its complaint against subcontractor Engel Insulation for defense fees and costs. The trial court denied Traveler’s request to amend. The Court of Appeals affirmed the trial court’s ruling and held an insurer may not “may not pursue a subrogation recovery if the insured is itself barred from filing suit.” (See Low v. Golden Eagle Ins. Co.(2002) 101 Cal.App.4th 1354, 1363.)
You just had a matter come across your desk and, of course, one of your first tasks is evaluating the liability exposure of your client. But sometimes lost in the liability exposure analysis is whether the exposure arose out of the work of a contractor. Why is this important? Because you could single-handedly save your client hundreds of thousands, if not millions of dollars, in legal fees by simply identifying possible indemnity contracts between your client and other entities. In this article I will highlight my favorite ways to use Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 to protect the businesses and assets my clients worked tirelessly to build.
Court comes to order and you begin examination of your cardiology expert.
Q: Doctor, in your work on this case, did you review the radiologist’s report of the chest x-ray taken of the plaintiff on March 1, 2018?
Q: Did you rely on the x-ray in rendering a differential diagnosis in this case?
A: Yes, I did.
Q: What did the radiologist find with regard to the x-ray?
An attorney hollers, “objection, hearsay!” What now?