News

Case Summaries

Workers' Comp

[10/24] Gholipour v. The Superior Court of San Diego County
Denying the petition for writ of mandate challenging an order by the trial court relating to the amount of petitioner's restitution because although the case was transferred to the superior court of another county while her appeal from a workers' compensation fraud conviction was pending, the trial court retained jurisdiction over restitution.

[10/13] American Cargo Express, Inc. v. Superior Court
In a workers' compensation action, arising after the California Self-Insurers' Security Fund (SISF) assumed the workers' compensation obligations of Mainstay Business Solutions and sued it and its clients to recover costs and liabilities, the trial court's grant of SISF's motion on the pleadings is affirmed where Labor Code section 3744, subdivision (c) authorizes SISF to bring such an action in superior court.

[10/06] Ford v. Workers' Compensation Appeals Board
In a workers' compensation action, the petition for review of an award of benefits is denied where the worker suffered a compensable injury entitling him to benefits, independent of his committing three criminal workers' fraud offenses.

[09/15] Ly v. County of Fresno
In a labor & employment action, brought by three Laotian correctional officers alleging racial discrimination in employment actions and retaliation after complaining about them, the trial court's grant of summary judgment to defendant county is affirmed where the denial of plaintiffs' separate workers' compensation claims bar their claims in this action on res judicata grounds.

[07/28] Baker v. Workers Compensation Appeals Board
Affirming the decision of the Workers' Compensation Appeals Board that the Subsequent Injuries Benefits Trust Fund benefits commence at the time the employer's obligation to pay permanent disability benefits begin.

[07/21] Chugach Management Services Zurich American Insurance Co. v. Jetnil
Denying the petition for review of the award of disability benefits under the Defense Base Act and the application of a judicially-created 'zone of special danger' doctrine to a local national injured while employed by a government contractor overseas.

[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.

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Injury & Tort Law

[12/01] Bartholomew v. Youtube, LLC.
Affirming the trial court's dismissal for failure to state a claim in the case of a musician whose video was taken down from YouTube, which posted a statement that the video had violated their terms of service, because using violence and profanity as examples of things that could result in the removal of a video did not amount to libel.

[11/29] Adelson v. Harris
Affirming the district court's dismissal of a case and award of attorney's fees and costs in the case of a man suing the National Jewish Democratic Counsel for defamation arising from the organization's communication to presidential candidate Mitt Romney that the plaintiff's financial contributions were tainted because the plaintiff failed to allege knowledge of falsity in their statements.

[11/29] Santos v. Los Angeles Unified School District
Reversing the trial court's grant of summary judgment after a Los Angeles School Police Department (LASPD) vehicle driven by an LASPD officer struck another vehicle a lawsuit was filed against the LASPD, but the vehicle turned out to be insured by the Los Angeles Unified School District (LAUSD), later added to the complaint, because there was a factual dispute regarding whether the misrepresentation of the LASPD officer resulted in equitable estoppel.

[11/29] Olson v. Manhattan Beach Unified School District
Affirming the trial court's dismissal of a second amended complaint in a lawsuit alleging defamation and deceit related to parents' complaints about a baseball team coach because the grievance, filed pursuant to a collective bargaining agreement, failed to satisfy the claim filing requirements of the Government Claims Act.

[11/28] Kedra v. Schroeter
Reversing the district court's grant of qualified immunity and remanding the case of a state trooper shot and killed by his instructor during firearms training because although the plaintiff only alleged an objective theory of deliberate indifference, which was not clearly established at the time of the shooting, the obviousness of the risk was relevant to proving actual knowledge and the allegations were sufficient to support a reasonable inference, adequately pleading a state-created danger claim.

[11/27] F.P. v. Monier
Affirming the judgment of the court of appeal that the district court's failure to issue a statement of decision as required by the Code of Civil Procedure was not reversible per se because no judgment can be set aside on the ground of misdirection of the jury, the improper admission or rejection of evidence, or for any error as to pleading or procedure, unless after examining the entire cause the court concludes that the error resulted in a miscarriage of justice.

[11/21] Dickinson v. Cosby
Reversing a decision striking the plaintiff's first amended complaint as it applied to Bill Cosby's attorney in a defamation suit involving a letter that characterized her rape accusation as a lie, as it applied to a demand letter, but affirming the denial of an anti-SLAPP motion with respect to a press release.

[11/21] Laboratory Specialists International, Inc. v. Shimadzu Scientific Instruments, Inc.
Affirming the district court's dismissal of a lawsuit pursuant to the forum selection clause in the parties' contract because there was no procedural error and the court did not err in dismissing the plaintiff's tort claims or by refusing to conduct an analysis under discretionary forum non conveniens factors.

[11/16] Cornell v. City and County of San Francisco
Affirming the jury verdict for tortious interference with economic advantage, Civil Code violations, attorney fees, and costs in the case of a police officer trainee who was wrongly arrested and held while taking a morning run because there was sufficient evidence to support the decisions, damages awards, and verdict.

[11/16] Best Auto Repair Shop, Inc. v. Universal Insurance Group
Affirming the district court's grant of summary judgment dismissing the plaintiff's claims in the case alleging that insurance companies had unlawfully interfered with the plaintiff's right to make or enforce existing and prospective contracts with their insureds or third party claimants by excluding a repair shop and because the owner is black and Dominican because issues were waived or improperly pleaded.

[11/16] Best Auto Repair Shop, Inc. v. Universal Insurance Group
Affirming the district court's grant of summary judgment dismissing the plaintiff's claims in the case alleging that insurance companies had unlawfully interfered with the plaintiff's right to make or enforce existing and prospective contracts with their insureds or third party claimants by excluding a repair shop and because the owner is black and Dominican because issues were waived or improperly pleaded.

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Professional Malpractice

[10/23] Curtis Engineering Corporation v. The Superior Court of San Diego County
Granting the petition for writ of mandate in a case involving professional negligence in which the attorney for a plaintiff failed to file a certificate declaring that a consultation and opinion from an expert in the field had been acquired in support of the action until after the expiration of the statute of limitation and more than 60 days after the filing of the complaint because such notices are required on or before the date of service of the complaint and no adequate excuse for not doing so had been proffered.

[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.

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