Cerebral aneurysm case 472
April 6th, 2012 
admin Wrongful death is another area of San-Diego-Personal-Injury-attorney.com
Martin v PacifiCare of California 198 Cal.App.4th 1390 (4/3) (2011) Insurance bad faith and vicarious liability: EM sought treatment for cerebral aneurysm. San-Diego-Auto-Accident-lawyer In network doctors (Bright Medical) referred EM to out-of-network USC which recommended procedure. PacifiCare’s utilization review doctor refused to authorize it, changed mind after several weeks, but by then aneurysm burst and EM died. PacifiCare unaware of any of these actions. Nonsuit granted, affirmed. [1] H&S C § 1371.25 explicitly precludes vicarious liability. [2] Federal Medicare Act preemption applies, if at all, prospectively only, and not in effect when decisions made. San Diego personal injury attorney.
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Documents disorder 471
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Kayne v The Grande Holdings Limited 198 Cal.App.4th 1470 (2/5) (2011) Judgment enforcement action, Kayne requested documents. Grande produced 90K pages, produced in complete disorder (plastic bags). San-Diego-Auto-Accident-lawyer Kayne’s motion for sanctions for causing under burden and expense CCP § 2023.010(c ). Grande responded it had no duty to produce them other than the way they were found, but produced no admissible evidence of that, in spite of trial judge’s order to do so. $75K sanctions, affirmed. [1] No evidence supporting Grande’s argument, thus trial court within its discretion to make order. San Diego personal injury attorney.
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Gross vehicle weight 470
April 6th, 2012 admin Product liability is another area of San-Diego-Personal-Injury-attorney.com
Joyce v Ford Motor Co 198 Cal.App.4th 1478 (3) (2011) Song-Beverly Consumer Warranty Act CC § 1790 applies to motor vehicles of gross vehicle weight under 10K pounds. San-Diego-Auto-Accident-lawyer Subject truck here had shipping weight of 6800 pounds, but had gross vehicle rating of 10K pounds. Nonsuit granted, reversed. [1] Song-Beverly uses term ‘gross vehicle weight,’ not ‘gross vehicle weight rating.’ The latter refers to the maximum capacity, not vehicle’s weight. [2[ Specific admissions to a request for admission is still an admission, even if preceded by usual objections and disclaimers. Asking party has no duty to bring motion to compel to have admitted RFA deemed admitted. San Diego personal injury attorney.
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Soldier fired after returning from Iraq 469
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Haligowski v Superior Court 200 Cal.App.4th 983 (2/3) (2011) Lt. Pantuso called up for active duty. When he returned from Iraq, employer Safway (not Safeway) told him he was fired. San-Diego-Auto-Accident-lawyer. Pantuso sued Safway and two individual managers. Individual defendants’ demurrers denied, writ issued. [1] Military & Veterans Code § 394 prohibits discrimination against members of the armed forces. By analogy to FEHA Gov C § 12900, liability may be had only against employers, not individual employees. San Diego personal injury attorney.
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Health-facility injury 468
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Lewis Operating Corp. v Superior Court 200 Cal.App.4th 940 (4/2) (2011) Landlord leased residential apartment to Plaintiff who was injured in the tenants-only health club (fell off treadmill). San-Diego-Auto-Accident-lawyer. Lease agreement had exculpatory clause for health-club facilities. Defendant’s MSJ denied, writ issued. [1] Prohibition against exculpatory clauses extends to all matters affecting the public interest, not just clauses waiving a statutory duty. [2] CC § 1953 prohibiting exculpatory clauses in residential agreements does not extend to Landlord’s duty to maintain mere amenities. No bright-line distinction between amenities and basic or essential common areas, but a health club is “clearly well outside.” health clubs’ exculpatory clauses are frequently upheld. Dissent. San Diego personal injury attorney.
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Patient-litigant 467
April 6th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Karen P. v Superior Court 2000 Cal.App.4th 908 (2/5) (2011) Patient-litigant exception compels disclosure only of those matters patient has tendered in litigation. San-Diego-Auto-Accident-lawyer.com Ev C §§ 994, 996. A child does not tender the issue, nor does the county filing a dependency petition tender it on her behalf, when the county alleges parent had abused the child. San Diego personal injury attorney.
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Car theft 466
April 6th, 2012 admin Wrongful death is another area of San-Diego-Personal-Injury-attorney.com
Beets v County of Los Angeles 200 Cal.App.4th 916 (2/8) (2011) Beets and Morales stole a car. Following a pursuit, they fought the deputy sheriffs, Beets killed, Morales convicted of felony assault on officer. San-Diego-Auto-Accident-lawyer.com Beets’s survivors sued for wrongful death. County’s demurrer–that the suit necessarily implied invalidity of conviction (Heck 512 US 477, Yount 43 C4th 885)–sustained, reversed. [1] Coparticipant Beets not convicted, and Heck/Yount rule only applies if Beets was a party or in privity with Morales who was convicted. Beets did not control the case or have community of interest with her, and speculative whether she would adequately represent Beets’s interests. San Diego personal injury attorney.
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Spinella probate matter 465
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Dzwonkowski v Spinella 200 Cal.App.4th 930 (4/3) (2011) Attorney Dzwonkowski represented Spinella in a probate matter, and attorney Boltz, of counsel to Dzwonkowski’s firm, handled matter’s litigation. San-Diego-Auto-Accident-lawyer.com Spinella disputed Dzwonkowski’s attorney fees. County bar mandatory fee arbitration award for Dzwonkowski. Dzwonkowski then moved for attorney’s fees incurred when Boltz represented Dzwonkowski in arbitration., granted, affirmed. [1] CC § 1717 broadly construed. Although a lawyer acting in propria persona is not entitled to recovery, where attorney fees “incurred,” in broad sense of term, they are recoverable by in-house counsel, by other lawyer in the firm and by a lawyer acting as of counsel. San Diego personal injury attorney.
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Traffic collision 464
April 5th, 2012 admin Wrongful death is another area of San-Diego-Personal-Injury-attorney.com
Sanchez v Strickland 200 Cal.App.4th 758 (5) (2011) Hueso injured and Sanchez’s decedent killed in traffic collision. San-Diego-Auto-Accident-lawyer.com In posttrial order, trial court reduced Hueso’s medical-expense damages to that paid by Medicare or written off by hospital (Howell 52 C4th 541) and applied Hueso’s comparative fault. Hueso appealed eight months after verdict but within 60 days after order. Motion to dismiss appeal denied, Howell order modified. [1] Posttrial orders are appealable if either a separately appealable order or where “substantial modification” to the judgment. Whether matter considered a clerical error is irrelevant, rejecting Rutter, Civil Appeals ¶ 3:56. By reducing recovery by $73K and by using a different legal ground (comparative fault) in deciding reduction, are each “substantial modifications.” [2] Medical provider’s writeoff is subject to collateral source rule and is recoverable by a plaintiff. Rest. 2d Torts § 920A. San Diego personal injury attorney.
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Metis Development LLC lawsuit 463
April 5th, 2012 admin Premises liability is another area of San-Diego-Personal-Injury-attorney.com
Metis Development LLC v Bohacek 200 Cal.App.4th 679 (1/5) (2011) Bohacek filed arbitration petition under LLC’s operating agreement. San-Diego-Auto-Accident-lawyer.com At hearing, Bohacek requested Statement of decision CCP § 632. Trial court denied petition and denied statement of decision as it was “a law-and-motion matter.” Reversed. [1] If properly requested, court must issue a statement of decision. CCP § 1291. [2] Although arbitration petition appears to be a motion, in essence it is “a suit in equity to compel specific performance.” Therefore, at least where court adjudicates a fact question, statement of decision obligatory. [3] Trial court’s written order inadequate as a statement of decision (found a waiver by delay without discussing prejudice; found possibility of conflicting rulings without considering statutorily required alternatives, etc.) San Diego personal injury attorney.
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