Articles Posted in Personal Injury

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Oregon State University (Oregon State) petitioned for a peremptory writ of mandate to direct the superior court to vacate an order overruling Oregon State's demurrer to George Sutherland's first amended complaint and to enter a new order sustaining the demurrer without leave to amend. Sutherland's complaint asserted causes of action for negligence and negligent misrepresentation against Oregon State. Sutherland was severely injured when a crane he was operating tipped over. At the time, he was using the crane to load a stack container owned by Oregon State onto a vessel owned by his employer, the Scripps Institution of Oceanography, a department of the University of California, San Diego. The stack container's weight was not displayed on its exterior and was not accurately recorded on the bill of lading provided by Oregon State. Oregon State contended the challenged order violated the federal Constitution's full faith and credit clause because the complaint did not and could not allege Sutherland's compliance with the Oregon Tort Claims Act's 180-day claims notice provision. Sutherland maintained the Clause did not require his compliance with the provision because requiring compliance would violate California's public policy by effectively depriving him of a remedy against Oregon State. Alternatively, Sutherland argued if the Clause does require compliance with the provision, he could amend the complaint to plead facts showing compliance. The California Court of Appeal agreed the superior court should have sustained Oregon State's demurrer because the Oregon Tort Claims Act's claims notice provision was entitled to full faith and credit in California. The provision does not conflict with or violate California's public policy and declining to give the provision full faith and credit would evince an impermissible policy of discriminatory hostility to the provision. Sutherland demonstrated he could plead facts showing compliance with the provision, so the Court granted the petition in part and directed the superior court to vacate its order overruling Oregon State's demurrer and enter a new order sustaining the demurrer with leave to amend. View "Oregon State University v. Superior Court" on Justia Law

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After plaintiffs' vehicle entered into a dark intersection and was struck by another car, they filed a negligence suit against the entity responsible for maintaining the battery backup unit for the traffic signal that was out. The Court of Appeal reversed the trial court's grant of summary judgment for defendant, holding that whether the duty question was analyzed under either Biakanja v. Irving, (1958) 49 Cal.2d 647, or Rest.2d Torts, 324A criteria, defendant failed to establish as a matter of law the absence of a duty to plaintiffs. View "Lichtman v. Siemens Industry Inc." on Justia Law

Posted in: Personal Injury

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In this case, we deny relief on a petition for review of an award of benefits made by the Workers' Compensation Appeals Board (WCAB). In 2006, while working at Pearson Ford, Leopoldo Hernandez accidentally slammed the trunk of a car on his left hand and crushed one of his fingers. Although no bones in his hand were broken, he was unable to continue working at Pearson Ford because of continuing pain in his hand and shoulder. Hernandez applied for and received workers' compensation benefits. Pearson Ford's workers' compensation carrier retained the services of a private investigator, who conducted video surveillance of Hernandez following each of the three visits to his doctor in early 2010. Following each visit, Hernandez was observed taking off his sling, using his left hand to get in and out of his truck or a car, using his left hand to steer his truck or car, and on one occasion stopping at a grocery store and using his left hand to carry a bag of groceries. After the investigator witnessed other instances of Hernandez using his allegedly injured left hand, the carrier notified the district attorney, who in turn, commenced its own investigation. In specified circumstances, a worker who engages in criminal fraud in attempting to recover workers' compensation benefits and is convicted of doing so is thereafter barred from recovering benefits growing out of the fraud. However, in given circumstances where, independent of any fraud, a worker is able to establish his or her entitlement to benefits, benefits may be awarded. Here, the WCAB found evidence, independent of a worker's fraud, that he had suffered a compensable injury and was entitled to benefits. In doing so the WCAB relied on the determination of a medical expert. The Court of Appeal found no error in the WCAB's determination the workers' claim was not barred by the eventual misdemeanor conviction for workers' compensation fraud and in the WCAB's adoption of the expert's finding of a permanent disability. The Court denied the petitioner any relief on its petition asking that it vacate the WCAB's award. View "Pearson Ford v. Workers' Comp. Appeals Bd." on Justia Law

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The Court of Appeal addressed whether, for purposes of overcoming the workers' compensation exclusivity doctrine (Lab. Code, section 3600(a) and 3602(a)), an employee’s statements against her hotel employer for violating provisions in the California Fair Employment and Housing Act (FEHA), were sufficient to protect her from nonemployee sexual harassment. The employee alleged facts showing: (1) she was raped while working on the employer's premises by a drunk nonemployee trespasser; (2) the employer knew or should have known the trespasser was on the employer's premises for about an hour before the rape occurred; and (3) the employer knew or should have known that, while on the employer's premises, the trespasser had aggressively propositioned at least one other housekeeping employee for sexual favors. The Court of Appeal concluded these facts were sufficient to state claims under the FEHA for sexual harassment by a nonemployee and for failure to prevent such harassment. Because the superior court determined otherwise and dismissed the employee's operative third amended complaint (complaint) after sustaining the employer's demurrer to it without leave to amend, the Court reversed the judgment and remanded the matter to the trial court for further proceedings. View "M.F. v. Pacific Pearl Hotel Management LLC" on Justia Law

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Plaintiff filed suit against her ex-fiance for negligence after she suffered a paralyzing spinal injury when she was thrown from her dirt bike during a ride with him. The Court of Appeal affirmed the trial court's grant of defendant's motion for summary adjudication on the basis of primary assumption of risk. The court held that plaintiff's primary assumption of risk barred the negligence claim where the ex-fiance's "guarantee" of a trail did not increase the inherent risk of injury from off-road biking to a coparticipant, and there were not triable factual issues as to whether the ex-fiance engaged in reckless conduct totally outside the range of activity involved in off-road dirt biking. View "Foltz v. Johnson" on Justia Law

Posted in: Personal Injury

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While working as a crane operator, plaintiff George Sutherland sustained injuries when his crane tipped over. Sutherland filed his original complaint, which included a negligence cause of action against real party in interest, Curtis Engineering Corporation (Curtis), a provider of engineering services. Sutherland's original complaint did not include a certificate, as required by Code of Civil Procedure section 411.35, subdivisions (a) and (b). Sutherland filed and served a first amended complaint which included a certificate. The original and amended complaint were identical, except for two additional paragraphs in the amended complaint stating that: (1) a certificate is attached as an exhibit to the amended complaint and is incorporated by reference, and (2) a claim was sent to defendant Oregon State University. Curtis demurred to the amended complaint arguing, among other things, that Sutherland failed to file the required certificate within the limitations period. The trial court overruled the demurrer. As relevant here, the court concluded that the amended complaint related back to the filing date of the original complaint. In this case, the Court of Appeal concluded that a certificate filed after expiration of the statute of limitations and more than 60 days after filing the original pleading did not relate back to the filing of the original pleading. The trial court erred when it overruled a demurrer alleging noncompliance with the certificate requirement of section 411.35. Accordingly, the Court granted the petition for writ of mandate. View "Curtis Engineering Corp. v. Superior Court" on Justia Law

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At 3:35 a.m. on the San Mateo Bridge, Ong’s vehicle collided with the Gonzalez vehicle. Gonzalez's passenger, Morales, was killed. At the accident scene, Ong said that he worked the night shift at Genentech was driving his personal vehicle to Genentech on his night off to collect resumes for “upcoming interviews.” Before the accident, Ong told a friend that he was going to Genentech to do something important for work. During his deposition, Ong gave various reasons for his trip, including picking up personal items from work, visiting his grandmother, and picking up the resume of his unemployed friend, Alvarez. Ong’s testimony with respect to Alvarez’s resume was impeached. Genentech presented evidence that all of Ong’s technician duties were performed at Genentech during work hours. Genentech did not require Ong to drive or own a vehicle and did not compensate Ong for travel time or expenses. The Morales family sued, asserting negligence. The court of appeal affirmed the dismissal of "respondeat superior" claims against Genentech. The“going and coming” rule precludes Genentech’s liability because Ong was driving for his own convenience and not at Genentech’s request or as part of his regular duties. Plaintiffs failed to establish a triable issue that Genentech was liable under the “special errand” exception to that rule. View "Morales-Simental v. Genentech" on Justia Law

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Lyons sued Colgate, alleging that she developed mesothelioma from the use of Colgate’s Cashmere Bouquet cosmetic talcum powder. Colgate manufactured Cashmere Bouquet from 1871 to 1985 and continued marketing it until 1995 when the Environmental Protection Agency reported that the presence of asbestos in talc makes it a human carcinogen. The talc used in Cashmere Bouquet came from three different sources. Lyons presented evidence that talc from each of the sites contained some form of asbestos. The court of appeal reversed the entry of summary judgment in favor of Colgate. The trial court failed to comply with Code of Civil Procedure section 437c(g), requiring a written order specifying the reasons for its determination and “specifically refer[ring] to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists.” Its tentative ruling indicated only its view that “Plaintiff failed to submit evidence to create a triable issue whether she was exposed to asbestos-containing products or materials attributable to defendant.” The record contains substantial evidence creating a triable issue as to whether Cashmere Bouquet contained asbestos that may be found to have been a substantial cause of plaintiff’s mesothelioma. View "Lyons v. Colgate-Palmolive Co." on Justia Law

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Plaintiff John PD Doe was sexually abused by a Boy Scout master beginning in 1998 and continuing for a number of years at a ranch owned and operated by defendants, San Diego-Imperial Council and Boy Scouts of America. In 2013, after Doe obtained psychological therapy, he filed this action against the defendants. Defendants ultimately demurred to Doe's complaint on the ground that he failed to file a certificate of merit, as required by Code of Civil Procedure section 340.1. The trial court sustained defendants' demurrer on this ground, without leave to amend. Doe appealed the trial court's judgment, and the Court of Appeal court affirmed the judgment in favor of defendants. Following the issuance of the remittitur, defendants moved for an award of attorney fees with respect to the fees incurred in defendant Doe's appeal pursuant to subdivision (q) of section 340.1. The trial court awarded defendants the fees that they requested without analyzing the statutory provision or stating the court's reasoning as to why such fees were appropriate. Doe appealed the trial court's award of attorney fees resulting from the prior appeal, contending section 340.1(q) was designed to permit an award of attorney fees only in situations in which there is some indication that the plaintiff's claim of sexual abuse is without merit, such that the conclusion of the litigation may be deemed to constitute a "[']favorable conclusion of the litigation with respect to[']" the defendants for whom a certificate of merit was filed or should have been filed. Doe asserted that in this case, where the trial court acknowledged that Doe's claim was not frivolous, and there was no indication that the claim lacked merit, defendants were not eligible for an award of attorney fees pursuant to section 340.1(q). Defendants argued that because they obtained a dismissal of the action, and, as a result, they were prevailing parties and were entitled to attorney fees. The Court of Appeal concluded that a defendant is eligible for an award of attorney fees pursuant to section 340.1(q) only where the litigation has resulted in a "favorable conclusion" for that defendant, and that a "favorable conclusion" requires a result that is reflective of the merits of the litigation. In this case, the dismissal of Doe's action was procured as a result of a procedural defect that did not reflect on the merits of the action. As a result, there was no "favorable conclusion" with respect to defendants, and they were therefore not eligible to be awarded their attorney fees. View "Doe v. San Diego-Imperial Council" on Justia Law

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The petition underlying this appeal challenged a trial court order summarily adjudicating a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act (the Act), a cause of action for fraud by concealment, and another for medical battery, while allowing other claims, including one for medical negligence, to proceed to trial. Petitioner Maxine Stewart was the representative of Anthony Carter, a man who died after admission to a hospital owned by real parties in interest, St. Joseph’s Health (et al.). She alleged the hospital “denied and withheld from Mr. Carter the right to refuse an unnecessary surgery, denied and withheld from Mr. Carter the right to be involved in secret hospital meetings to invalidate his designated consent, and denied and withheld from Mr. Carter his right to a second opinion prior to proceeding with an unwarranted surgery that resulted in a hypoxic injury, brain damage, cardiac arrest and his untimely death.” Having concluded the petition might have merit, the Court of Appeal stayed the action in the trial court and requested an informal response. Having received and read the “return by verified answer” that was filed by real parties in interest, the Court then set an order to show cause and requested further briefing on a specific issue. Real parties in interest decided to stand on their informal response in lieu of filing another brief, and Stewart declined to file a traverse. After review, the Court then granted the petition: in the published portion of this opinion, the Court discussed the cause of action for elder abuse to explain how, in its view, a substantial impairment of this right can constitute actionable “neglect” of an elder within the meaning of both the little-invoked catchall definition contained in Welfare and Institutions Code section 15610.57(a)(1), and two of the types of neglect set forth in section 15610.57(a)(2). View "Stewart v. Superior Court" on Justia Law