HOSPITAL HAS NO DUTY TO DIRECTLY REPORT RESULTS TO PATIENT WHEN PERFORMING TESTING ORDERED BY DOCTOR

Hospital.jpgIn Walker v. Sonora Regional Medical Center (filed January 12, 2012) 2012 DJDAR 553, Amber Walker engaged the services of her personal physician, Dr. Teel, for pregnancy care. Among the prenatal laboratory tests that Dr. Teel ordered was a cystic fibrosis screening test to detect her genetic predisposition of having a child with cystic fibrosis. She went to Sonora Regional Medical Center (Hospital) where she had a blood specimen taken which was sent to a Salt Lake City laboratory that did the genetic testing; that laboratory then sent the results back to Hospital and Hospital promptly transmitted the results to Dr. Teel, who personally reviewed the results, which stated that Amber was a carrier of cystic fibrosis. Dr, Teel made a notation on the lab report to review with the patient, but he never did. Amber suffered a miscarriage.

Several months later, Amber was again pregnant and returned to Dr. Teel's office for eleven prenatal visits over the next 7 months. No mention was ever made of her previous cystic fibrosis test results. Amber declined to undergo another cystic fibrosis test, apparently believing that silence from the doctor's office on the subject meant her results were negative. Amber gave birth to a daughter, Payton, who was later diagnosed with cystic fibrosis.

The Walkers sued various defendants, including Hospital, on theories of negligence. Hospital moved in the trial court for summary judgment, primarily on the ground it had no duty to directly notify Amber of the lab results; its sole duty was to notify Dr. Teel, who was then to contact the patient. The trial court agreed, granting the motion. The Court of Appeal, Fifth Appellate District, affirmed.

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Product liability limited to injury caused by defendant's own product or loss directly caused by that product's use

product_087.jpgThe California Supreme Court is widely credited as the originator of strict product liability as a means of tort recovery for its pronouncement in Greenman v Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62: "A manufacturer is strictly liable in tort when an article he places into the market, knowing that it is to be used without inspection for defects, proves to have a defect that caused injury to a human being." Soon thereafter the theory was expanded such that strict liability encompassed even those injuries traceable to a defective component part that was supplied by someone other than the defendant manufacturer of the finished product. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262.)

In O'Neil v. Crane Co.(filed January 12, 2012) 2012 DJDAR 464, the current state high court was asked to extend liability for the harm caused by replacement parts, made by someone other than the defendant manufacturer, that were used in conjunction with (rather than as component parts of) defendant's product. In a unanimous decision, the Supreme Court decided to limit a manufacturer's duty to foresee such harm unless the defendant's own product contributed substantial harm or the defendant participated substantially in creating a harmful combined use of the products.

Defendants Crane and Warren (Warren Pumps, LLC) made valves and pumps respectively that were used in US Navy warships according to government specifications. Gaskets and packaging materials were used as sealants for defendant's products; based on Navy specifications, these sealant materials were made of asbestos and replaced during routine maintenance. Patrick O'Neil served on a ship that contained these products from 1965 to 1967. While supervising enlisted men repairing ship equipment, he was exposed to airborne asbestos fibers that were released during the repair of valves and pumps manufactured by defendants. However, none of the asbestos dust came from defendant's products. In 2004, O'Neil developed mesothelioma, causing his death about one year later. Family of O'Neil filed this wrongful death action raising strict liability and negligence claims.

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Employment discrimination lawsuit brought by "called" teacher barred by ministerial exception under 1st Amendment freedom of religion

teacher.jpgThe Untied States Supreme Court has weighed in for the first time on the question of whether church ministers are exempt from the protection of employment discrimination statutes. In Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (filed Jan.10 2012) 2012 DJDAR 374, it concludes the First Amendment's Establishment and Free Exercise Clauses strike a balance between one's employment rights and "the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission;" acting as a bar to lawsuits under such statutes. The fact the High Court unanimously so ruled is not surprising. What appear to concern some commentators (see Daily Journal guest column of January 19, 2012 by Dean Erwin Chemerinsky) is that the specific facts of Hosanna-Tabor involved a person who was primarily an elementary school teacher at the private religious school operated by the church.

Cheryl Perich started as a lay teacher at the school in 1999. By the end of that first school year, she completed religious training that qualified her for a diploma and caused the school/church to call her as a commissioned minister of the church. She continued to teach secular subjects, and in addition taught a religious class 4 days a week and led chapel services twice a year.

In 2004, Perich took medical leave due to narcolepsy, at which time she was replaced by a lay teacher. Later in the school year, upon her notifying the school principal her condition had improved allowing her to return to work, the school administrators advised the church congregation she was unlikely to be physically able to perform her duties for 2 years; the congregation voted her a "peaceful release" from her call, that she would be deemed to have resigned in exchange for the church maintaining a portion of her health care premium. When Perich refused to accept these terms, she was terminated for insubordination. Perich complained to EEOC, which filed a law suit on her behalf.

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Does the idiopathic cause of injury fail to "arise out of" employment thus not constitute compensable injury under Workers' Compensation Law?

The California Supreme Court currently has before it a petition for review in the case of Harris Ranch Inn & Restaurant v. WCAB (Orrala) (#S199077, filed December 30, 2011). This petition follows the denial of Petition for Writ of Review in the Court of Appeal, Fifth Appellate District on December 21, 2011.

This case involves an employee who was injured after suffering an idiopathic seizure (arising spontaneously or from an obscure or unknown cause) and falling to the cement floor on which he was standing. The employee has a documented history of seizures, unknown to the employer, that based on undisputed medical evidence was unrelated to and pre-existed his employment. There is no evidence the nature of the employee's work or the manner in which he was doing it was a contributing cause of the seizure and resulting head injury.

The worker's compensation ALJ and WCAB found the employee sustained injury "arising out of and in the course of employment," based on the nearly 60-year old case of Employers Mutual Liability Insurance Company v. Industrial Accident Commission (1953) 41 Cal.2d 676 (Gideon), in which the California Supreme Court upheld an award of benefits to an employee who sustained injuries to his head when he fell as a result of an idiopathic seizure while at work.

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New Penalties For Misclassification Of Individuals As Independent Contractors

January 16, 2012

IC.jpgJanuary 1st is often the date that employment laws enacted during the prior calendar year go into effect. While many new laws are widely publicized, others seem to slip by unnoticed until an employer is informed that it has violated some rule that it never knew existed. Two recent additions to the California Labor Code are of particular importance to businesses that use independent contractors and individuals who advise those business as to the appropriateness of independent contractor classifications.

Starting on January 1, 2012, newly added California Labor Code section 226.8 imposes penalties ranging from $5,000 to $15,000 against a person or employer who is found to have "willfully" misclassified an individual as an independent contractor. In situations where a person or employer is found to have engaged in a "pattern or practice" of misclassifying individuals as independent contractors, the penalty to be imposed ranges from $10,000 to $25,000. The penalty is assessed per individual misclassified and is in addition to all other penalties/fines permitted by law. Businesses have always known that evaluating independent contractor relationships can be tricky and the risks for misclassification are great due to potential problems under applicable tax and employment laws. However, these new penalties could potentially cripple a business that makes a mistake with respect to the classification of multiple individuals who all provide the same type of service to the business. In addition to the imposition of penalties, Section 226.8 authorizes the California Contractors State License Board to initiate disciplinary action against a licensee who is found to have "willfully" misclassified an individual as an independent contractor.

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Make Sure You Know Your Obligations Under The California Transparency In Supply Chains Act

January 13, 2012

January 1st is often the date that laws enacted during the prior calendar year go into effect. While many new laws are widely publicized, others seem to slip by unnoticed until a business is informed that it has violated some rule that it never knew existed. One law, that is surprising a number of companies is the California Transparency in Supply Chains Act of 2010 (the "Act'). Signed by then Governor Arnold Schwarzenegger, the Act requires companies doing business in California to, by January 1, 2012, post information on their websites informing consumers what steps the company takes to ensure that its supply chains are free from slavery and human trafficking. Interestingly, unlike other laws, whether a company is subject to the Act is not determined by the number of individuals employed by the company or the fact that the company has contacts with areas of the world in which slavery and human trafficking are prevalent. Instead, the Act applies to all companies operating in California that have over 100 million dollars in annual worldwide gross receipts.

If a company satisfies the basic criteria to be covered under the Act, the company must post information on its website indicating what, if any, actions the company takes with respect to the following:
evaluating and addressing the risks of human trafficking and slavery in the company's product supply chains;

  • requiring the company's direct suppliers to certify that the materials incorporated into company products comply with laws regarding slavery and human trafficking;
  • conducting audits of the company's suppliers to evaluate compliance with company standards on human trafficking and slavery;
  • maintaining accountability standards and procedures for employees or contractors that fail to meet the company's standards regarding slavery and human trafficking; and
  • providing employees and managers, who have direct responsibility with supply chain management, with training on the mitigation of human trafficking and slavery risks.

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New Disclosure Requirements Mandated By The California Labor Code

January 12, 2012

Labor Code.JPGJanuary 1st is often the date that employment laws enacted during the prior calendar year go into effect. While many new laws are widely publicized, others seem to slip by unnoticed until an employer is informed that it has violated some rule it never knew existed. Even worse, an employer's obligations under certain laws are not fully identified until shortly before compliance is required. One such law that is causing a lot of confusion for California employers is the California Wage Theft Protection Act 2011 (the "Act"). Signed into law on October 9, 2011, the Act makes various changes to the California Labor Code including adding Section 2810.5. Section 2810.5 requires that starting on January 1, 2012, employers must provide all non-exempt California employees with a notice, given at the time of hire, which provides the following information:

  • the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
  • allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
  • the regular payday designated by the employer in accordance with the requirements of the California Labor Code;
  • the name of the employer, including any "doing business as" names used by the employer;
  • the physical address of the employer's main office or principal place of business, and a mailing address, if different;
  • the telephone number of the employer;
  • the name, address, and telephone number of the employer's workers' compensation insurance carrier; and
  • any other information the Labor Commissioner deems material and necessary.

While the specific disclosures identified in Section 2810.5 seem fairly clear, the "any other information the Labor Commissioner deems material and necessary" requirement has created a number of problems. As mandated by the Act, the Labor Commissioner has provided employers with a form Section 2810.5 notice that can be downloaded from the Labor Commissioner's website. However, the Labor Commissioner did not make the form notice available until the last week of December, 2011. Moreover, when the form notice was circulated, it became clear that the Labor Commissioner had added a number of disclosures not specifically identified in Section 2810.5. For instance, employers must also inform each new hire whether the employment relationship is governed by an oral or written contract and identify any other businesses or entities the employer uses to hire employees or administer wages/benefits. Since the Labor Commissioner did not issue the form notice until a few days before the new law went into effect, even those employers who knew about the requirements of Section 2810.5 were forced to scramble over the holiday weekend to revise their forms to make sure they covered all the information that had to be disclosed. Unfortunately, there are still many employers that do not know about the new information required by the Labor Commissioner or have no idea that non-exempt new hires must now be given the information discussed above. Given the risks associated with an employer's failure to comply with the requirements of Section 2810.5, it is recommended that all employers discuss the new disclosure requirements with legal counsel and determine how best to proceed.

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Plaintiff's wrongful death verdict reversed on finding of no legal duty of care for gas eruption due to vehicle collision with defendant's off-street gas meter assembly

gavel.jpgTiffany Gonzalez was driving home from work at the posted speed of 25 MPH one late afternoon when another vehicle apparently attempted to pass her on the right of the single lane of traffic in her direction of travel. The intrusion caused her to veer into the opposite side of the undivided road and lose control. Her vehicle drove over the opposite curb maintaining the same speed and colliding with a block wall and careening into defendant Southern California Gas Company's gas meter assembly located on private property outside the wall, the assembly being located 11 feet 4 inches from the curb. The force of the collision caused the vehicle to knock one of three concrete-filled steel protective posts onto the assembly, breaking the gas line and causing a fire that enveloped Tiffany's vehicle. Two days later, Tiffany died of her injuries.

The parents of Tiffany sued the gas company and others for wrongful death in Gonzalez v. Southern California Gas Company (filed December 13, 2011) 2011 DJDAR 17858. This appellate opinion arises from the California Supreme Court granting review of the earlier Court of Appeal opinion that had reversed plaintiff's judgment against the gas company after jury verdict in the sum of $800,000. ($2 million in damages, fault-apportioned 40% to gas company, 50% to Tiffany and 10% to property owner.) The state
high court transferred the case back to the Court of Appeal, Fourth Appellate District, Division One, with instructions to reconsider in light of Cabral v. Ralph's Grocery Co. (2011) 51 Cal.4th 764. The Court of Appeal issued this revised opinion, again reversing the trial court judgment.

The appellate court concluded that the gas company owed no legal duty to Tiffany, thus reversing the judgment as a matter of law; this resulted in entry of judgment in favor of the gas company. The jury had found that this defendant's negligence was a substantial factor in causing the plaintiffs' damages; defendant's motion for JNOV had been denied by the trial court.

The opinion of the Court of Appeal focuses on the "forseeability" factor found under the venerable duty standards cited in Rowland v. Christian (1968) 69 Cal.2d 108. To start, as Rowland sets forth, there is no exception to the general rule of Civil Code section 1714 that a party owes a duty to exercise due care in its actions so as not to create an unreasonable risk of injury "unless clearly supported by public policy." (Id. at p. 112-113.) "Forseeability of harm" is a major public policy factor. (Ibid.) And as the Gonzalez court points out, it is crucial to distinguish between a determination that the defendant owes no duty of ordinary care, which is for the court to make, and a determination that defendant did not breach that duty, which is for the jury to decide.

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Teacher/director terminated at church's preschool for violating church's marital precepts is not protected by FEHA, Title VII or public policy

director terminated .jpgIn Henry v. Red Hill Evangelical Church of Tustin (filed December 9, 2011) 2011 DJDAR 17734, plaintiff was terminated from her employment with defendant because she and her boyfriend continued to live together and raise their child without being married. Her lawsuit asserted violations of the California Fair Employment and Housing Act [Govt. Code section 12900, et seq. (FEHA)] and Title VII of the federal 1964 Civil Rights Act, and termination in violation of public policy.

The trial court heard the bifurcated initial portion of the case pertaining to defendant's defenses and found the "ministerial exception" applied precluding plaintiff from prevailing. The California Court of Appeal, Fourth Appellate District, Division Three, affirmed, determining defendant church is exempt under each of FEHA and Title VII, and that the ministerial exception additionally precludes plaintiff's public policy cause of action.

Plaintiff Sara Henry was an at-will employee of defendant church's pre-school (a part of the church's ministry) for nearly 7 years, acting as a teacher and most recently performing the additional duties of "director." She agreed in writing that her duties were "God-ordained" and pledged her "prayer, support, and assistance" to families participating in this "ministry" of the church. In addition to serving as a Christian role model, her responsibilities included teaching religion and secular subjects to pre-schoolers, conducting devotional times weekly and chapel services three to four times during the year, giving weekly tours to parents of prospective students emphasizing that Bible based Christian values were taught, and handling administrative chores.

Defendant terminated plaintiff's employment several months after it learned of her living with her boyfriend and child without benefit of marriage. She was counseled prior to termination and acknowledged her living arrangement was contrary to the teachings of the Bible; that she intended to marry her boyfriend but did not know when.

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Homeowners' payment alone under HAMP loan work-out plan does not save home from foreclosure

bank-foreclosed-homes-for-sale.jpgDuring these times of "underwater" home mortgages, many homeowners have enlisted in the federal Home Affordable Mortgage Program (HAMP). In Nungaray v. Litton Loan Servicing, LP (filed November 22, 2011) 2011 DJDAR 16868, plaintiffs executed a "loan work-out plan" for the lender's review. Under HAMP, the lender accepts reduced mortgage payments as provided for in the plan during the time the lender reviews the plan to determine long-term acceptability. Here, plaintiffs had been delinquent in their normal mortgage payments to lender Bank of America for approximately 6 months and the notice of trustee's sale had been set prior to the execution by plaintiffs of the loan workout plan. The lender suspended foreclosure proceedings as it reviewed the plan. Two of the four reduced mortgage payments made by plaintiffs were accepted. The lender eventually decided to reject the plan and its agent notified the plaintiffs it would move forward with the foreclosure, which it did.

Plaintiffs sued for breach of contract and quiet title, and defendants (Litton and Bank) moved for summary judgment. The Ventura County Superior Court granted summary judgment, determining the plan was not an enforceable agreement requiring defendants to enter into a loan modification because such modification was expressly contingent upon factors which never came to fruition. On plaintiffs' appeal, the California Court of Appeal, Second Appellate District, Division Six, affirmed.

The appellate court rejected plaintiffs' argument that they were lulled into believing their loan had been modified: that based either on contractual principles or on estoppel created by defendant's acceptance of trial payments, they have stated facts that should go to trial. The court found that, as a matter of law, the plan expressly does not require defendants to provide plaintiffs with a permanent loan modification. Here the plan was only executed by plaintiffs and the defendants never tendered plaintiffs a permanent modification agreement because plaintiffs failed to submit complete financial information establishing that they qualified under HAMP. While, the defendants did accept two of the reduced mortgage payments, that was essentially consideration for defendant's suspending foreclosure temporarily.

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Parties wishing to enforce arbitration clause must take care not to forfeit right

arbitration .JPGEl Cajon Motors Inc. was sued by one of its customers, Yaube Roberts, acting for herself and the class of other customers, for El Cajon's allegedly backdating installment purchase contracts, failing to properly disclose finance charges, and charging illegal interest. El Cajon answered the complaint in mid-August 2009 with a general denial and 24 affirmative defenses, but made no mention of the existence of an arbitration provision.

The parties exchanged written discovery requests in mid-October 2009. In late January 2010, El Cajon responded to discovery and filed its motion to compel arbitration. Roberts opposed arbitration, claiming unconscionability.
Also during late January, El Cajon sent letters to putative class members: one offering individual settlements of $50, and a second letter enclosing a small refund check and admitting an oversight in the computation of interest. In Mid-February 2010, upon learning of these mailings, Roberts conducted discovery regarding the communications and briefed its additional claim that El Cajon had forfeited it s right to arbitrate. The motion to compel arbitration was denied. El Cajon appealed.

The California Court of Appeal, Fourth Appellate District, Division One, affirmed the order denying the motion to compel arbitration in Roberts v. El Cajon Motors, Inc. (filed November 8, 2011) 2011 DJDAR 16358. The court rejected El Cajon's arguments that it engaged in no conduct inconsistent with its right to arbitrate, and that a 5-month delay without prejudice to Roberts was insufficient delay to show waiver or forfeiture. The court found it need not decide whether a 5-month delay is insufficient as a matter of law because there was ample proof that the conduct was inconsistent with the intent to arbitrate and such conduct prejudiced Roberts.

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Gratuitously written off medical bills are recoverable as special damages under collateral source rule

November 25, 2011

As discussed in the August 23, 2011 blog, the California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. 92011) 52 Cal.4th 541, held that a plaintiff may not recover for reasonably incurred medical billings to the extent they are discounted under a plaintiff's private insurer's contract with the medical provider. In dicta, the court commented it recognized the gratuitous-services exception to the rule limiting recovery to plaintiff's economic loss; that the exception's policy is to provide an incentive to charitable aid. (Id. at p. 559.)

In Sanchez v. Strickland (filed November 4, 2011) 2011 DJDAR 16230, the Court of Appeal, Fifth Appellate District, was presented with the precise issue of recoverability of medical charges gratuitously written off by the medical provider. Plaintiff Hueso had $7,020 of his medical bills written off by Vibra Healthcare. Vibra had charged $113,989 for treatment, billed Medicare as primary payor from whom it received $66,704 in payment with a $40,265 contract allowance. The balance of $7,020 was billed to Medi-Cal, but denied payment because Vibra had no contract with Medi-Cal.

Relying upon the previously stated dicta from Howell, an appellate court case cited in Howell, Arambula v. Wells (1999) 72 Cal.App.4th 1006, and the Restatement of Second of Torts, the Sanchez court ruled that the amount written off gratuitously by the medical provider constitutes a benefit that may be recovered by the plaintiff under the collateral source rule.

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Evidence extrinsic to the parties' contract is admissible to prove false advertising

November 16, 2011

Police_Line.jpgIn Duncan v. The McCaffrey Group, Inc. (filed October 28, 2011) 2011 DJDAR 15875, plaintiffs bought from defendants residential lots in a tract marketed as Treviso Custom Home Development. Plaintiffs claim they bought in the development, paying premium prices, because of its marketing as an exclusively custom home development; instead, defendants, unbeknownst to plaintiffs, intended to build smaller tract homes on some of the lots .The matter came before the Fresno County Superior Court on defendants' demurrers and motion for summary adjudication. On the issues that are the subject of this appeal, the trial court sustained the demurrers and granted summary adjudication on the basis that the parol evidence rule precluded plaintiffs from establishing facts supportive of their claims. The Court of Appeal, Fifth Appellate District, reversed.

Defendants took the position that plaintiffs' allegations in question could not be considered because they contradicted the terms of the lot sales agreements and the CC&R's that included giving the developer the right to build different types of residences. Under the parole evidence rule, argued defendants, the integrated agreement on each lot was the final expression of the terms of the agreement.

On their causes of actions for unfair competition and false advertising, the plaintiffs successfully argued to the appellate court that these claims did not contain allegations that required proof that would vary, alter or add to the terms of a written agreement. Rather than argue the terms of the agreement, each plaintiff alleged he or she was mislead by and reasonably relied upon false advertising.

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Employee's attorney fees in successfully defending action brought by employer not recoverable under statutory indemnity

California Labor Code section 2802, subdivision (a), requires that an employer "indemnify" an employee for all necessary costs incurred as a direct consequence of the employee's discharge of employment duties. Does the employer's duty to indemnify include attorney fees incurred in defending an action brought by the employer, or only in an action instituted by a third party? In a case of first impression, the California Court of Appeal, Fourth Appellate District, Division Three, held this statute does not require an employer to pay the attorney fees incurred in the employee's successful defense of employer's action. [Nicholas Laboratories, LLC v. Chen (filed October 12, 2011) 2011 DJDAR 15153.]

Christopher Chen was employed as director of information technology for Nicholas Labs. Nicholas sued Chen primarily for competing against it and misusing its funds. Chen cross-complained for compensatory damages and indemnity, as well as attorney fees. After a bench trial, the Orange County Superior Court entered judgment for Chen on Nicholas's complaint, and for Nicholas on Chen's cross-complaint. Chen appealed.

The appellate court found that Chen's interpretation of section 2802 (that because he was being sued by his employer for his actions as an employee, the statute required that he be indemnified for his attorney fees in successfully defending the lawsuit) conflicts with the common understanding of the word "indemnify": applying to an obligation to pay the costs incurred in a lawsuit brought by a third party. The court acknowledged that this general rule does not apply if the parties to a contract use the term "indemnity" to include direct liability as well as third party liability or a statute expressly so provides.

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Even if broadcast news program presents slanted reporting lacking in research, libel is not proven

reporting.jpgIn Yuin University v. Korean Broadcast System (filed October 5, 2011) 2011 DJDAR 15039, the defendant had broadcast in its Sunday news program a segment called "Degree Factory Confers Doctoral Degrees Even to Persons who Plagiarize." Reporters had visited the university and found the school to be vacant, a professor/graduate had commented that he only spent two separate one-week visits at the Los Angeles campus in obtaining his degree, and reporters interviewed other graduates who suggested they had copied the work of others in their successful doctoral dissertations. The segment concluded that the school is a "ghost school" that is not found on any reliable websites including that of the State of California.

Yuin sued and its claim of libel went to bench trial. Yuin asserted that the defendant failed to contact Yuin or further investigate before describing the university as "vacant," which had a defamatory meaning, while the condition that was observed may have only been temporary; the use of the term "ghost school" was also libelous for the same reason; and the contention that two of its graduates had "perfectly identical" dissertations was false. The Los Angeles Superior Court rendered judgment in favor of defendant. The trial court found the statements of defendant were not reasonably susceptible to a defamatory interpretation as a matter of law: the reporter's observations of the vacancy of the campus were reported in "hyperbolic speech" entitled to constitutional protection, and Yuin failed to prove utter falsehood concerning the allegation of granting of degrees to students who plagiarized their dissertations.

The California Court of Appeal, Second Appellate District, Division Eight, affirmed. The court found that, based on the totality of the circumstances, the characterization of Yuin as a "suspected degree factory" is an expression of opinion, which cannot support a defamation action, rather than a statement of fact, which may be demonstrably false.

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