Personal Injury & Product Liability Blog

Special Relationship — Duty to Disclose

By on November 5, 2015 - Comments off

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Doe v. Superior Court (Sixth District, May 29, 2015) — Cal.Rptr.3d —-, 2015 WL 3429130

 The parents of an 8-year-old girl who was molested by a summer camp supervisor, filed an action against the church which ran the camp.  The parents asserted a number of causes of action on behalf of their daughter, as well as their own causes of action for intentional and negligent concealment. The parents alleged that the defendant had a duty to disclose to them the fact that the employee had previously been terminated for inappropriate conduct with other children, and that after he had been rehired he was fired again when employees suspected him of having engaged in inappropriate conduct with their daughter.

The trial court sustained the defendant’s demurrer to the parents’ intentional and negligent concealment causes of action without leave to amend, reasoning that while the defendant camp may have had a special relationship with children who attended the camp sufficient to create a duty to prevent harm to them, “a duty to prevent harm is not the same as a duty to disclose.”  However, the court of appeal issued a peremptory writ of mandate directing the trial court to vacate the order, and to issue a new order overruling the demurrer, holding that the camp’s duty to exercise reasonable care to prevent harm to the minor and her parents encompassed a duty to disclose a credible report of harm suspected to have already occurred: Read the rest »

Posted in: Duty to Disclose


MICRA — Statute of Limitations

By on October 29, 2015 - Comments off

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Pouzbaris v. Prime Healthcare Services—Anaheim, LLP (Fourth District, April 23, 2015)  236 Cal.App.4th 116, 186 Cal.Rptr.3d 314, 15 Cal. Daily Op. Serv. 3973, 2015 Daily Journal D.A.R. 4512

A woman who was injured when she slipped and fell on a recently mopped floor at a hospital filed suit against the owner of the facility, seeking damages under a theory of premises liability. The plaintiff alleged that she had been admitted to the hospital after complaining of chest tightness with shortness of breath, and that she had fallen during her stay while returning to her bed from the bathroom.

The defendant moved for summary judgment, arguing that plaintiff’s action, which was filed nearly two years after the accident, was time-barred by Code of Civil Procedure section 340.5, which provides that in an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action is the earlier of three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury. The plaintiff opposed the motion arguing that the action was outside of MICRA, and subject to the two-year statute of section 335.1, pertaining to ordinary negligence claims for personal injury.

The trial court granted the motion, ruling that the action was one for professional negligence because the negligence was “committed in the act of rendering services for which the hospital is licensed,” which was namely “to use reasonable care and diligence in safeguarding a patient committed to its charge. However, the court of appeal reversed, relying in part on Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797 and Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50: Read the rest »

Posted in: Premises Liability


Delayed Discovery — Suspicion of Wrongful Cause

By on October 26, 2015 - Comments off

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Rosas v. BASF Corporation (Second District, May 21, 2015) — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 5042, 2015 Daily Journal D.A.R. 5570

A worker at a food flavoring plant filed an action against several manufacturers of diacetyl, a chemical used in food manufacturing. The plaintiff alleged that as a result of his workplace exposure to the chemical he developed a severe lung disease known as bronchiolitis obliterans. The defendants moved for summary judgment, contending that the two-year statute of limitations had run on the plaintiff’s claim, because even though he had been experiencing symptoms since as early as 2000, and had shared his suspicions with his doctors in 2003 that his exposure to diacetyl had been making him sick, he did not file suit until October of 2008.

The plaintiff opposed the motion on the basis of delayed discovery, arguing that until November of 2006 when his condition was diagnosed as having been caused by diacetyl, he was unaware of the cause of his injury. The plaintiff also contended that because of his physicians’ earlier inability to determine the cause, he was under no duty to further investigate. The trial court granted summary judgment, but the court of appeal reversed, finding that the evidence could support a legitimate inference that a reasonable person in the plaintiff’s situation would not have suspected a wrongful cause for his lung disease:  Read the rest »


Duty of Care — Religious Organizations

By on October 22, 2015 - Comments off

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Conti v. Watchtower Bible & Tract Society of New York, Inc. (First District, April 13, 2015)  235 Cal.App.4th 1214, 186 Cal.Rptr.3d 26, 15 Cal. Daily Op. Serv. 3573, 2015 Daily Journal D.A.R. 4094

A woman who was molested as a child by an adult male member of her church congregation filed suit against her abuser, the local congregation and Watchtower Bible and Tract Society, the entity overseeing the church. The plaintiff alleged that she had been repeatedly molested when she was paired with her abuser during “field service,” a church-sponsored activity where members go door-to-door preaching in the community. The plaintiff further alleged that because the other defendants were aware that the abuser had a prior conviction for child molestation, they had a duty to warn members of the congregation and limit and supervise his activities with children.

A jury returned a verdict in favor of the plaintiff, which included an award of punitive damages against Watchtower based upon a failure to warn. However, the court of appeal reversed as to the punitive damages award, finding that although the religious organization had a duty to use reasonable care to restrict and supervise the abuser’s field service to prevent him from harming children in the community and in the congregation, there was no duty to warn the congregation or the plaintiff’s parents that he had previously molested a child: Read the rest »

Posted in: Personal Injury


General Jurisdiction — Continuous and Systematic Affiliation

By on October 19, 2015 - Comments off

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BNSF Railway Company v. Superior Court (Second District, March 27, 2015) 235 Cal.App.4th 591, 185 Cal.Rptr.3d 391, 15 Cal. Daily Op. Serv. 3088, 2015 Daily Journal D.A.R. 3506, 2015 Daily Journal 4049

The relatives of a former railway worker who died from malignant pleural mesothelioma filed a wrongful death action against a railway company. The plaintiffs alleged that the decedent developed the disease as a result of exposure to asbestos, asbestos-containing products and/or products designed to be used in association with asbestos products, while working at a dismantling facility and roundhouse owned by the defendant’s predecessor.

The defendant moved to quash service of summons for lack of personal jurisdiction, contending that the trial court lacked specific personal jurisdiction over it because the conduct alleged against it did not arise from it’s in-state activities. The defendant also contended that the trial court lacked general personal jurisdiction because it is a Delaware corporation with its principal place of business in Texas, and therefore not “essentially at home” in California, as required under Daimler AG v. Bauman (2014) ––– U.S. ––––, 134 S.Ct. 746, 751 and Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) ––– U.S. ––––, 131 S.Ct. 2846, 2854.

The trial court denied the motion to quash, concluding that the defendant’s “systematic and continuous business in California,” its status as an American company, and its role as a “perpetrator” of the wrongdoing alleged rendered it amenable to general jurisdiction even after Daimler and Goodyear.  However, the court of appeal issued a writ of mandate directing the trial court to vacate its order denying the motion to quash and to enter a new order granting the motion, holding that even though the defendant conducted continuous and systematic business in California by owning 1,149 miles of track, employing 3,520 people, and generating 6 percent of its overall revenue in the state, those facts were insufficient to impose general jurisdiction: Read the rest »

Posted in: Wrongful Death


Employment Law — Mental Disability

By on October 15, 2015 - Comments off

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Higgins-Williams v. Sutter Medical Foundation (Third District, May 26, 2015) — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 5245, 2015 Daily Journal D.A.R. 5740

 A woman who worked as a medical clinical assistant performing patient intakes filed an action against her employer, asserting causes of action for disability discrimination and wrongful termination. The plaintiff alleged that she had been diagnosed as suffering from adjustment disorder with anxiety, as a result of being stressed because of interactions at work with human resources and her manager. The plaintiff further alleged that she had been terminated during a leave of absence while undergoing a regimen of psychotherapy and medications related to her alleged disability.

The trial court granted summary judgment and the court of appeal affirmed, holding that the undisputed facts showed that the plaintiff was not disabled, in that her alleged disability—an inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of job performance—is not a disability recognized in California’s Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.):

Read the rest »


Employment Contracts — Arbitration Agreements

By on October 12, 2015 - Comments off

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Serafin v. Balco Properties Ltd., LLC, (1st Dist., March 16, 2015) — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 2617, 2015 Daily Journal D.A.R. 3048

A woman who was terminated from her job as a property management director filed a wrongful termination action against her employer, asserting a number of causes of action including retaliation, harassment, wrongful termination, unpaid earnings, breach of oral contract, common counts, conversion, and defamation. The defendant moved to stay the case pending arbitration, pursuant to a two-page arbitration agreement, entitled “Mandatory Arbitration Policy,” which the plaintiff had signed a few days after beginning her employment.

Following an arbitration decision and judgment in favor of the defendant the plaintiff appealed,  relying on Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 116 Cal.Rptr.3d 804, which held that an arbitration agreement was procedurally and substantively unconscionable because, inter alia, the employer had failed to provide the employee with a copy of the applicable American Arbitration Association (AAA) rules.  The court of appeal affirmed, distinguishing the facts from its decision in Trivedi, and holding the failure to provide a copy of the applicable arbitration rules did not render the agreement procedurally unconscionable: Read the rest »

Posted in: Uncategorized


CLRA Claims — Foreign Language Translations

By on October 5, 2015 - Comments off


Lopez v. Asbury Fresno Imports, LLC (5th Dist., February 6, 2015) 234 Cal.App.4th 71, 183 Cal.Rptr.3d 696.

A husband and wife who owned a Mercedes Benz filed an action against the dealership where they purchased the car, asserting violations of various consumer protection statutes, including the Consumers Legal Remedies Act (Civ.Code, § 1750 et seq.)  The plaintiffs alleged that they were born in Mexico and had lived in the United States since 1988, and because they did not speak or read English well, their 16-year old son had acted as an interpreter when negotiating the purchase.  The plaintiffs further alleged that the dealership should have provided them with a Spanish translation of their purchase contract, as required by § 1632, because the contract was primarily negotiated between the plaintiffs and the defendant in Spanish.

The trial court ruled in favor of defendant, finding that because the plaintiffs’ son was the primary negotiator on behalf of the plaintiffs, and he negotiated with the English-speaking representatives of the defendant in English, 1632 was not applicable, as the transaction was not negotiated primarily in Spanish. The court of appeal affirmed, holding that the contract was not one negotiated primarily in Spanish and therefore was not governed by section 1632: Read the rest »


Insurance Coverage — Expected Damage Exclusion

By on October 1, 2015 - Comments off

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Gonzalez v. Fire Insurance Exchange (6th Dist., February 2, 2015) 184 Cal.Rptr.3d 394, 15 Cal. Daily Op. Serv. 2240, 2015 Daily Journal D.A.R. 2579 

A woman filed an action against several members of a college baseball team, alleging that they had sexually assaulted her at a party while she was intoxicated and unconscious. The complaint alleged several intentional torts including false imprisonment, as well as negligence based causes of action including negligence for failing to rescue her from the assault, and negligence for inviting her to the party,

One of the defendants, who had sought but was denied coverage for his defense through his parents’ homeowner’s and personal umbrella policies, settled with the plaintiff and assigned his rights against the carrier to the plaintiff.  When the plaintiff filed an action for bad faith against the umbrella carrier, the trial court granted the carrier’s motion for summary judgment, finding that, inter alia, the policy excluded damages “[e]ither expected or intended from the standpoint of an insured.”

The court of appeal reversed and remanded, holding that the carrier had failed to meet its burden to conclusively show that its insured would have expected or intended any damages to flow from his alleged conduct based solely on the allegations of the complaint: Read the rest »

Posted in: Negligence


Medical Malpractice — Negligent Infliction of Emotional Distress

By on September 28, 2015 - Comments off

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Phyllis Keys v. Alta Bates Summit Medical Center (1st Dist., February 23, 2015/March 25, 2015)    — Cal.Rptr.3d. —-

The sister and daughters of a woman who died following thyroid surgery, filed an action for wrongful death against the medical centerwhere the surgery was performed.  One of the daughters and the decedent’s sister also asserted a cause of action for negligent infliction of emotional distress, alleging that immediately following surgery both had witnessed the decedent having respiratory difficulties and discomfort, and both were upset at what they believed was a lack of urgency in responding to the woman’s distress.

Following a jury verdict in favor of the plaintiffs the defendant appealed, contending there was no evidence to support the jury’s finding that the plaintiffs had meaningfully comprehended the medical negligence that led to the death of their family member at the time the negligence was occurring. Relying on Bird v. Saenz (2002) 28 Cal.4th 910, 123 Cal.Rptr.2d 465, 51 P.3d 324, the defendant argued that the plaintiffs could not meaningfully perceive the defendants’ negligence because except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders.

However, the court of appeal affirmed, holding that the injury producing event was the defendant’s lack of acuity and response to the decedent’s inability to breathe, a condition the plaintiffs observed and were aware was causing her injury: Read the rest »