Personal Injury & Product Liability Blog

Harb v. City of Bakersfield, — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 877, 2015 Daily Journal D.A.R. 1001

A doctor who suffered a stroke while driving and then ran his car onto a sidewalk was arrested and handcuffed by a police officer who assumed he was intoxicated.  The first ambulance called to the scene drove away, and it was not until a second ambulance arrived later that the doctor was taken to a hospital for treatment. He then filed suit against the responding officer, the ambulance driver and their employers, alleging that the delay in treatment resulted in permanent brain damage, rendering him unable to care for himself.

At trial the defendants requested an instruction on comparative negligence and argued that the alleged negligent failure of the plaintiff to manage his own high blood pressure was a cause of the accident. Following a jury verdict in favor of the defendants, the plaintiff appealed, asserting inter alia that the trial court erred in instructing the jury on comparative fault, in that any alleged negligence prior to the interaction with the defendants was irrelevant. The appellate court agreed and reversed, holding that, as a matter of first impression in California, the defendants should not have been permitted to argue that the plaintiff’s own alleged neglect of his own high blood pressure rendered him responsible for the harm suffered: Read the rest »

Rashidi v. Moser, (Supreme Court of California, December 15, 2014) 60 Cal.4th 718, 339 P.3d 344, 181 Cal.Rptr.3d 59, 14 Cal. Daily Op. Serv. 13,880, 2014 Daily Journal D.A.R. 16,440

A patient who suffered blindness in one eye following a medical procedure relating to a nosebleed, filed an action for personal injuries against the doctor who performed the procedure. The plaintiff also asserted causes of action against the medical center and the manufacturer of tiny particles used in the procedure to block blood vessels. After settling with the latter two defendants, the plaintiff obtained a jury verdict against the physician, and the trial court reduced the noneconomic damages portion to the MICRA cap of $250,000. Although the defendant doctor did not establish at trial any fault on the part of the settling co-defendants at trial, he sought offsets against the judgment for the pretrial settlements.

The trial court denied the offsets, finding no basis for allocating the settlement sums between economic and noneconomic losses, and noting that the jury made no finding as to the settling defendants’ proportionate fault. The court of appeal held that offsets were required, but the California Supreme Court granted review and reversed as to any reduction for noneconomic losses. The court held that when a defendant who has gone to trial has failed to establish the comparative fault of the settling defendants, a jury’s award of noneconomic damages already reduced to the MICRA limit may not be further diminished by pretrial settlements attributable to noneconomic losses: Read the rest »

Yau v. Santa Margarita Ford, Inc., (Fourth District, August 26, 2014) 229 Cal.App.4th 144, 176 Cal.Rptr.3d 824, 38 IER Cases 1871, 14 Cal. Daily Op. Serv. 10,132, 2014 Daily Journal D.A.R. 11,814

A man who was terminated from his job as a service manager at an automobile dealership filed suit against his employer, asserting a cause of action for wrongful termination in violation of public policy. The plaintiff alleged coworkers were involved in an ongoing scheme to submit fraudulent warranty repair claims to Ford Motor Company, and that he was fired when he reported the fraud to the owner and general manager. He further alleged that his termination violated public policy set forth in laws prohibiting criminal conspiracy (Pen. Code, § 182), retaliation for refusing to participate in illegal activity (Lab. Code, § 1102.5), engaging in unfair business practices (Bus. & Prof. Code, § 17200), theft (Pen. Code, § 484), fraud and deceit (Civ. Code, §§ 1572, 1709), and various state and federal laws protecting consumer information.

The trial court sustained the dealership’s demurrer without leave to amend, finding that the plaintiffs’ third amended complaint failed to allege a violation of a policy that was “public” in the sense that it “inures to the benefit of the public” rather than serving merely the interests of the individual.  However, the court of appeal reversed, holding that the plaintiff had adequately pleaded a cause of action for wrongful termination in violation of public policy tethered to statutes proscribing theft and fraud: Read the rest »

Cruise v. Kroger, (Second District, August 27, 2014) 176 Cal.Rptr.3d 612, 124 Fair Empl.Prac.Cas. (BNA) 376, 14 Cal. Daily Op. Serv. 10,219, 2014 Daily Journal D.A.R. 11,925

A woman who was terminated from her employment as assistant manager of human resources after only seven weeks on the job brought an action against the employer, asserting statutory causes of action pursuant to the Fair Employment and Housing Act (FEHA), for retaliation, sexual harassment, sexual and racial discrimination, failure to investigate and prevent harassment and retaliation, as well as common law claims for wrongful termination.  The defendant filed a motion to compel arbitration, pursuant to a clause in the employment application which required arbitration of employment-related disputes, and incorporated by reference the company’s Mediation & Binding Arbitration Policy. The policy provided that the arbitrator “must be a retired state or federal judge,’ … ‘and neither the American Arbitration Association (‘AAA’) nor the Judicial Arbitration & Mediation Services (‘JAMS’) will be permitted to administer any arbitration held under or pursuant to this Arbitration Policy.’”

The plaintiff opposed the motion, contending that she never signed the arbitration agreement, the clause was vague, and that she was never provided a copy of the arbitration policy, which was a four-page undated document in the defendant’s employee handbook, which she had also never been given. The plaintiff further contended that the policy was procedurally and substantively unconscionable. Read the rest »

McIntyre v. Colonies-Pacific, LLC, (Fourth District, July 31, 2014) 228 Cal.App.4th 664, 175 Cal.Rptr.3d 440, 14 Cal. Daily Op. Serv. 8687, 2014 Daily Journal D.A.R. 10,125

A jewelry store owner who was held up at gunpoint by robbers and severely pistol whipped, filed suit against the owners of the shopping center in which his store was located, asserting negligence and premises liability theories. The plaintiff alleged that prior to the incident two stores had been robbed at gunpoint and that several times prior to the incident he had expressed concern about the lack of security to an employee of the defendant. He also alleged that when the defendant hired an unarmed guard to patrol the common areas following the subject incident, there were no more armed robberies over a period of five years.

Prior to trial the defendant moved to exclude any evidence of subsequent remedial measures under Evidence Code section 1151, including the hiring of the security service. The plaintiff opposed the motion, arguing that the evidence was not being offered to show a breach of care, but rather, to show the lack of a security patrol was the cause of the accident. The trial court granted the motion, and excluded the evidence.  The jury found the defendant was negligent, but that its negligence was not a substantial factor in the plaintiff’s damages. The court of appeal affirmed, holding that the trial court had not abused its discretion in excluding the evidence, and rejecting the plaintiff’s argument that the defendant’s had opened the door to its admission during opening statement: Read the rest »

Bristol-Myers Squibb Company v. Superior Court, (First District, July 30, 2014) 228 Cal.App.4th 605, 175 Cal.Rptr.3d 412, 14 Cal. Daily Op. Serv. 8653, 2014 Daily Journal D.A.R. 10,059

Hundreds of users of the prescription drug Plavix, including both Californians as well as residents of other states, filed products liability actions in California against BMS, the drug’s manufacturer. The plaintiffs alleged that BMS falsely represented the drug as providing greater cardiovascular benefits, while being safer and easier on a person’s stomach than aspirin, but that those claims were untrue, and that ingesting the drug involved a risk of suffering a heart attack, stroke, internal bleeding, blood disorder or death, far outweighing any potential benefit.

The manufacturer moved to quash service of the summons of the complaints by the non-California residents, contending that the trial court could not assert general jurisdiction over the defendant unless it was “at home” in California under the holding in Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) ––– U.S. ––––, 131 S.Ct. 2846, 180 L.Ed.2d 796. The manufacturer argued that its California contacts did not rise to that level since it was neither headquartered nor incorporated here. The defendant also argued that out of state plaintiffs could not invoke specific jurisdiction here because such jurisdiction is limited to cases where the controversy is related to or arises out of the defendant’s contacts with the forum.

The trial court denied the motion based on its conclusion that California has general jurisdiction over BMS, but did not address the issue of specific jurisdiction. The court of appeal summarily denied a petition for a writ of mandate, but following the U.S. Supreme Court’s decision in Daimler AG v. Bauman (2014) ––– U.S. ––––, 134 S.Ct. 746, 187 L.Ed.2d 624, which limited the application of general jurisdiction, the California Supreme Court granted a petition for review and transferred the matter back to the court of appeal for further consideration. The court of appeal denied the petition, finding that although the trial court did not have general jurisdiction over the defendant, the motion to quash was properly denied based upon the doctrine of specific jurisdiction: Read the rest »

Settle v. State of California, (Second District, July 23, 2014) — Cal.Rptr.3d —-, 2014 WL 3615482

A woman who was injured when a sand escarpment on a beach collapsed causing her to fall into the water and rocks, sued the State of California and the City of Morro Bay, alleging a dangerous condition of public property. The defendants moved for summary judgment, contending that the action was barred by a statutory immunity for injuries caused by a natural condition on unimproved public property. (Gov. Code, §§ 831.2; 831.21.) The trial court granted the motion and ordered the plaintiff and her attorney pay attorney’s fees and costs pursuant to Gov. Code § 1038, which  requires a mandatory award of defense costs where a trial court grants summary judgment and finds that plaintiff lacked reasonable cause and good faith in filing or maintaining a tort action against a public entity.

The plaintiff’s attorney appealed, contending that section 1038 does not authorize the imposition of defense costs against counsel. The court of appeal agreed and reversed, rejecting the State’s contention that an award for defense costs is similar to an action for malicious prosecution: Read the rest »

Maslo v. Ameriprise Auto & Home Insurance, (Second District, June 27, 2014) — Cal.Rptr.3d —-, 14 Cal. Daily Op. Serv. 7318, 2014 Daily Journal D.A.R. 8471, 2014 WL 2918866

A man who was injured in a car accident and received an uninsured motorist arbitration award for less than his policy limits, filed an action for bad faith against his insurance carrier. The plaintiff alleged that even though he provided the insurer with all documents concerning liability and damages to fully and fairly evaluate the case, at no time prior to the arbitration hearing did the insurer schedule depositions of treating physicians or interview them, or request a medical examination.  The plaintiff further alleged that the insurer failed to make any offer of settlement, contrary to Insurance Code section 790.03, subdivision (h)(5), which provides that it is an unfair claim settlement practice not to “ ‘attempt[ ] in good faith to effectuate a prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.”

The trial court sustained the insurer’s demurrer without leave to amend, finding that the plaintiff could not allege causation, as the facts did not show that his damages plainly exceeded the uninsured motorist coverage policy limits.  However, the court of appeal reversed, rejecting the carrier’s argument that bad faith could not be shown unless either that the insured’s pre-arbitration damages plainly exceeded the policy limits or that the damages awarded by the arbitrator exceeded the settlement demand: Read the rest »

Hardin v. PDX, Inc., (First District, June 19, 2014) 227 Cal.App.4th 159, 173 Cal.Rptr.3d 397.

A woman who suffered complete blindness and permanent scarring after taking a prescription anticonvulsant drug, filed suit against several defendants, including the manufacturer, the prescribing doctor and the pharmacy where the drug was purchased, alleging that she would not have taken the drug had she been provided adequate warnings.  The plaintiff also named a supplier of software which distributed to pharmacy customers information known as drug education monographs, and alleged the defendant was negligent in reprogramming its software to permit the pharmacy to print abbreviated warnings, omitting 3 pages of additional information about the drug.

The defendant moved to strike the plaintiff’s claims under Code of Civil Procedure section 425.16 (the “anti-SLAPP” statute) on the ground that the products liability and negligence claims against it arose from protected speech concerning a public issue or an issue of public interest. The trial court denied the motion, finding that the activity underlying the alleged liability was the reprogramming of software, and was not in furtherance of the defendant’s right of petition or free speech within the meaning of section 425.16. The court of appeal affirmed, holding that the plaintiff had demonstrated a probability she may prevail on her claim under a theory of negligent undertaking, distinguishing the case from Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 115 Cal.Rptr.3d 1: Read the rest »

Hernandez v. County of Los Angeles, (Second District, June 17, 2014) 226 Cal.App.4th 1599, 173 Cal.Rptr.3d 226.

The daughter of a man who was killed when he was struck by a Los Angeles County Deputy Sheriff’s car while standing near his car after an accident on the freeway,  brought a wrongful death action against the deputy and the County of Los Angeles. Prior to trial the plaintiff filed a motion in limine to exclude evidence of her father’s use of medical marijuana, contending that the County could not show the decedent was impaired by marijuana at the time of the accident or establish any causal connection between his marijuana use and his death, and that the evidence would be unduly prejudicial.

The trial court denied the motion, concluding that evidence of whether the decedent was impaired and whether such impairment contributed to the collisions or his actions, was relevant to assess fault attributable to him. The jury returned a verdict in favor of the plaintiff but apportioned 14 percent of the fault to the decedent. The court of appeal reversed and remanded the case for a new trial, concluding that “evidence of marijuana use is irrelevant in the absence of a causal connection between the marijuana use and the accident”: Read the rest »