Legal News

Case Summaries

Workers' Comp

[06/20] Zhu v. Workers' Comp. Appeals Bd.
In a case involving an in-home caretaker injured while traveling between worksites, the court annulled an earlier appeal dismissing the action and remanded for a new decision, where the facts of the case qualified for the required vehicle exception to the going and coming rule.

[05/22] Southern Ins. Co. v. WCAB
In an action involving a workers' compensation insurance policy that was issued based on the express representation that the covered employer's employees did not travel out of state, and after an employee was injured out of state, the insurer notified the employer that it was rescinding the policy because of the employer's misrepresentation and returned the premium, the Workers' Compensation Appeals Board's decision affirming an arbitrator's decision that, as a matter of law, the insurer could not rescind the policy and that the policy was in effect, is annulled where: 1) contrary to the arbitrator's ruling, a workers' compensation insurance policy may be rescinded; and 2) the arbitrator and the appeals board did not address and determine whether rescission was a meritorious defense to the employee's claim.

[04/26] City of Jackson v. WCAB
In a workers' compensation case, the Workers' Compensation Appeals Board's decision disregarding the apportionment determination of the qualified medical evaluator (QME) on the ground the determination was not substantial medical evidence and directing the workers' compensation administrative law judge (ALJ) to make an award of unapportioned disability, is annulled where: 1) apportionment may be properly based on genetics/hereditability; 2) the QME properly apportioned disability; and 3) the QME's opinion Is based on substantial medical evidence.

[03/29] Marin Community Services v. WCAB
In a writ proceeding seeking to set aside the decision of the Workers' Compensation Appeals Board (WCAB) holding that firefighter-petitioner was entitled to the benefit of the rebuttable presumption under Labor Code section 3212.1 that his cancer arose out of his employment, the WCAB's decision is affirmed where: 1) the WCAB's determination that petitioner was an employee of Marinwood was based on a reasonable interpretation of the relevant statutes; and 2) the WCAB's determination that the extension of the cancer presumption ran from the date petitioner last worked as a firefighter for any agency was based on a reasonable interpretation of the relevant statute.

[03/29] Ramirez v. WCAB
In a workers' compensation writ proceeding, seeking review of worker-petitioner's independent medical review on the ground the underlying utilization review was based on an incorrect standard, the order of the administrative law judge (ALJ) taking the matter off calendar is reversed and remanded for further proceedings where: 1) this is not a proper ground for appeal of a utilization review determination because it goes to the heart of the determination of medical necessity; 2) the independent medical reviewer is in the best position to determine whether the proper standard was used to evaluate the medical necessity of the requested treatment, and the statutory scheme requires the independent medical reviewer to use the proper standard in determining medical necessity; and 3) the Legislature's plenary power over the workers' compensation system precludes any separation of powers violation, and the process afforded workers under the system affords sufficient opportunity to present evidence and be heard.

[03/24] Co. of Riverside v. WCAB
In a workers' compensation case involving a sheriff, the findings by the Workers' Compensation Appeals Board are affirmed over a County's challenge where: 1) plaintiff's the application for adjudication of claim was timely filed; and 2) Labor Code section 5500.5(a), did not bar liability on the County?s part.

[03/23] People v. Riddles
Conviction of workers' compensation insurance fraud in violation of Insurance Code section 11760(a) and restitution order are affirmed where: 1) a workers' compensation insurer may recover, as restitution under Penal Code section 1202.4, the premiums it would have earned in the absence of misrepresentations by an insurance applicant; and 2) the court did not err in imposing a fine.

[01/20] Metro Machine Corporation v. DOWCP
In a petition for review of an order of the Benefits Review Board affirming decisions of an ALJ granting a claim for medical benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. section 907, the petition is denied where: 1) the only error the ALJ committed was in failing to apply the 'naturally or unavoidably results' standard to the fracture claim; and 2) remand for application of that standard would be a futile exercise, given that there was no issue presented regarding avoidability.

[11/22] Gage v. Workers' Compensation Appeals Board
In a workers' compensation action brought by petitioner, a deputy sheriff who sustained a job-related injury, the Workers' Compensation Appeals Board's decision denying penalties for the unreasonable delay of advance disability pension payments is annulled and remanded where: 1) such payments qualify as compensation under Labor Code section 3207; 2) such penalties available under Labor Code section 5814 are available for unreasonable delay or denial of the payment of compensation; and 3) no other provision of the Labor Code excludes such payments from the penalty provisions of section 5814.

[11/15] Lee v. West Kern Water Dist.
In a case involving the applicability of the workers' compensation exclusivity rule, which governs the matter of when an injured worker can bring a civil action against the employer and when he or she is instead limited to the remedy of a workers' compensation award, brought by a former employee against a water district and four coemployees, alleging assault and intentional infliction of emotional distress after the coemployees staged a mock robbery with plaintiff as the victim, the trial court's judgment is: 1) reversed as to the grant of defendants' motion for a new trial where the jury instructions were not erroneous, and alternative grounds for affirmance proposed by defendants lack merit; and 2) affirmed as to the order denying the motion for judgment notwithstanding the verdict.

[08/17] Kerrigan v. MSPB
In an appeal of a final decision of the Merit Systems Protection Board dismissing, for lack of jurisdiction, his claim that his workers' compensation benefits were improperly terminated in retaliation for protected whistleblowing activity, the Board's decision is affirmed where, although the Board incorrectly held that 5 U.S.C. section 8128(b) bars its review of petitioner's appeal, petitioner failed to make a nonfrivolous allegation that his protected disclosure was a contributing factor in the agency's action.

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Injury & Tort Law

[07/17] Swigart v. Bruno
Affirming the trial court's grant of summary judgment to the defendant in a case involving a person struck by a horse during an endurance horse riding event on account of the doctrine of primary assumption of risk, and because Swigart failed to establish a genuine issue of material fact as to recklessness and the horse's propensity for danger.

[07/13] Mountain Valley Prop. Inc. v. Applied Risk Serv. Inc.
Affirming the denial of a motion to vacate an arbitrator's decision because the arbitrator did not manifestly disregard the law and did not exceed their powers.

[07/12] Mejias-Aguayo v. Doreste-Rodriguez
Affirming the denial of a motion for new rial following a jury verdict in favor of the defendants in a case involving a car accident where the plaintiff complained about the defense attorney's characterization of the incident as an accident and the judge's paraphrasing of portions of the law in their jury instructions, finding that neither incident was misleading or prejudicial.

[07/10] Riggs v. Curran
Affirming the dismissal of plaintiff's claims challenging the development of an offshore wind farm because the personal injury tort claim was filed after the state's three year statute of limitations, determining that the statute of limitations began to run at the time of publication of the Public Utilities Commission's plan, not when permits were issued, energy rates rose, or the plaintiffs exhausted their administrative remedies.

[07/06] Kumari v. The Hospital Com. for the Livermore Pleasanton Areas
Affirming that a letter sent to a hospital demanding damages and alleging negligence that included a threat to 'move to the court' if a settlement amount was not paid constituted a notice of intent to sue did not extend the statute of limitations for a tort action filed more than a year after the incident.

[07/05] Soto v. Gaudett
Reversing the denial of summary judgment and dismissing other grounds for appeals on procedural grounds, the court held that lower court erred in failing to apply the fleeing-suspect principle when determining police officer's qualified immunity in a case involving the death of a fleeing suspect as a result of tasering and a car accident.

[06/30] Trejo v. Johnson & Johnson
Reversing the jury verdict involving an ibuprofen manufacturer whose pills gave a customer a reaction on account of their rare skin disease where the jury's verdicts were contradictory, with some decisions finding no strict-liability failure to warn but finding negligent failure to warn, and also failing to include the necessary question of whether a reasonable manufacturer under the same circumstances would have warned against the risk.

[06/30] Blanyer v. Geneva Products, Inc.
Affirming the dismissal of a putative class action claim that was found to be barred by the statute of limitations in a case brought by former employees of a company that manufactures vinyl pipes and rain gutters because the action was commenced long after their exposure and the discovery rule did not apply since the harmful effects of the substances have been public knowledge for decades.

[06/29] Halley v. Honeywell International Inc.
Affirming the class certification, settlement approval, and award of attorney's fees in a class action suit relating to the chromium contamination of New Jersey properties in the vicinity of waste disposal sites, but ordering the reconsideration of the award of costs.

[06/26] City of Pasadena v. Super. Ct.
Mesothelioma sufferer's case is dismissed because, although the statute of limitations on asbestos-related injuries had not yet begun to run, the statute of limitations on bringing suit against the city government had.

[06/22] Arnone v. Aetna Life Ins. Co.
In a case involving the denial of long-term disability benefits, the district court's grant of summary judgment to defendant is reversed where on appeal the court applied a NY law that raises the conclusive presumption that settlements do not include costs paid by an insurer and that neither ERISA nor a choice of law provision on the insurance plan blocked the application of the law.

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Professional Malpractice

[03/10] Yale v. Bowne
In a case arises from a claim of attorney malpractice in the preparation of an estate plan, in which the jury found that attorney-defendant had breached the standard of care in failing to properly implement plaintiff's express instruction to maintain her assets as her separate property in the trust document which defendant prepared for her and her then husband, the trial court's judgment is affirmed over defendant's appeal regarding fault, where the trial court correctly gave the comparative fault instruction requested by defendant.

[02/14] Samara v. Matar
In a suit for dental malpractice, alleging a dentist had negligently performed oral surgery on plaintiff and the dentist's principal and employer, was vicariously liable for the dentist's negligence, the trial court's grant of summary judgment to the employer, after finding in favor of dentist, concluding plaintiff's claim for vicarious liability was barred under the doctrine of claim preclusion--a ground not raised in employer's motion--and plaintiff could not show employer independently caused her any injury, is reversed where neither claim preclusion nor issue preclusion applies in this case.

[11/21] Horiike v. Coldwell Banker Residential Brokerage Co.
In property law and real estate action, arising from of a dispute between a buyer and seller of a luxury residence while both were represented by defendant Coldwell Banker and its associate licensees, the trial court's entry of nonsuit is reversed. The Court held that an associate licensee, functioning on the behalf of a dual agent in a real property transaction, owes the buyer an equivalent duty of disclosure to the agent under California Civil Code section 2079.13, subdivision (b).

[10/31] Drexler v. Petersen
When the plaintiff in a medical malpractice action alleges the defendant health care provider misdiagnosed or failed to diagnose a preexisting disease or condition, there is no injury for purposes of Code of Civil Procedure section 340.5 (which provides that a plaintiff in an action for medical malpractice must file the action within three years of the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first) until the plaintiff first experiences appreciable harm as a result of the misdiagnosis, which is when the plaintiff first becomes aware that a preexisting disease or condition has developed into a more serious one.

[10/28] Bigler-Engler v. Breg, Inc.
In a negligence and strict liability action arising from injuries suffered by plaintiff's as a result of her use of a medical device that was manufactured by defendant and prescribed by a medical doctor, alleging medical malpractice, design defect, and failure to warn, the trial court's judgment in favor of plaintiff is reversed in part where: 1) the jury's verdict as to several claims was not supported by the evidence, including plaintiff's intentional concealment claim and her strict products liability claim; 2) in light of the reversal of plaintiff's intentional concealment claim, the jury's punitive damages award must be reversed; and 3) the jury's award of noneconomic compensatory damages and punitive damages are excessive.

[10/04] Markow v. Rosner
In a suit for professional negligence and loss of consortium after doctor-defendant's treatment rendered plaintiff quadriplegic, the trial court's judgment finding both doctor and hospital defendants negligent is: 1) reversed as to the hospital, where under the circumstances, plaintiff knew or should have known that doctor was not hospital's agent, plaintiff's belief to the contrary was not objectively reasonable, and hospital's motion for judgment notwithstanding the verdict should have been granted; and 2) affirmed as to doctor over his claims that the evidence was insufficient to support the jury's finding he was negligent, the special verdict was hopelessly inconsistent and warranted a new trial, the award of future economic damages was excessive, and plaintiffs were not entitled to costs under Code of Civil Procedure section 998.

[09/29] Licudine v. Cedars-Sinai Med. Center
In a medical malpractice action arising out of an injury sustained during gall bladder surgery, seeking damages for the resulting diminution in her earning capacity, the trial court's grant of a new trial on damages is affirmed where: 1) the plaintiff in this case did not adduce any evidence to establish that it was 'reasonably probable' she could have obtained employment as an attorney or any evidence on the earnings of lawyers; 2) the trial court did not abuse its discretion in determining that the jury's $730,000 award for lost earning capacity was not supported by substantial evidence; and 3) given the unusual facts of this case, the court acted within its discretion in granting a new trial on damages rather than entering a judgment notwithstanding the verdict for the defendants.

[08/10] Borrayo v. Avery
In a medical malpractice action arising from defendant doctor's treatment of plaintiff for thoracic outlet syndrome, the trial court's grant of summary judgment to defendant after sustaining an objection to plaintiff's sole expert witness's declaration is reversed where plaintiff's expert witness, a physician licensed to practice in Mexico, was qualified to provide an opinion about the standard of care applicable to defendant.

[06/29] In re Hoover
In an ethics action, the district court's order of sanctions under Federal Rule of Bankruptcy Procedure 9011(b)(2) against debtor's attorney, ordering him to enroll in a one-semester class on legal ethics or professional responsibility at an ABA accredited law school, is affirmed where it was not an abuse of discretion to order such a sanction following the attorney's multiple misstatements of the law.

[06/01] Rice v. Downs
In an arbitration action, arising from a number of legal malpractice claims brought by plaintiff against defendant attorney, the trial court's order compelling arbitration of plaintiff's legal malpractice, breach of fiduciary duty, and rescission claims is reversed where they cannot be considered to have arisen out of the operating agreement between the parties.

[03/04] Malmberg v. US
In an injury and tort action, arising after surgery at a Veteran?s Administration facility left plaintiff quadriplegic, the district court?s $4.4 million damage award is vacated where: 1) federal law does not require a veteran injured from VA malpractice to be forced to continue under VA care for lack of financial resources and have a concomitant offset; and 2) the district court failed to provide an adequate analysis supporting the denial of plaintiff?s motion to increase the ad damnum and pain and suffering award.

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