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Is the trial court's denial of new trial, reversible because appellant court finds court's express statement of reasons for denial legally inconsistent, even though absent that statement the judgment would have been affirmed?

denial.jpgOne lesson I learned from 29 years on the bench was to take care not to say too much when making a ruling. This can be difficult, because conscientious people tend to explain the reasoning behind a conclusion reached. David v. Hernandez (filed 5/22/14) 2d Civil No. B245342 demonstrates the trouble with saying too much.

Hernandez was a truck driver headed northbound on the Pacific Coast Highway when he decided to pull off of the highway to park. Because there was no available parking on the right side of the road, he made a left turn into a parking area adjacent to the southbound lane. After taking a nap, he started driving again, stopping short of the southbound lane, checking that there was no immediate traffic, and proceeding to start his left turn into the northbound lane. The time was 8:39 p.m., four minutes before the end of civil twilight and 25 minutes after sunset. Hernandez' vehicle made it into the northbound lane, but the end of the attached trailer was still a bit in the southbound lane when struck by plaintiff David's vehicle. David had no recollection of the collision; his passenger saw a dark obstruction in their lane of traffic, saw David react, and then the crash happened. Just before the collision, she and David wanted to listen to music on her laptop, but she could not get the power to work.

David and his passenger sued for negligence. At trial, the jury was instructed on negligence per se, that liability would follow if it found that as a result of a relevant statutory violation, which was a substantial factor in causing harm, plaintiffs were injured. The violations claimed included parking on and re-entering the roadway from the wrong side of the highway, including failing to yield the right-of-way; and failing to properly signal a turning motion. The jury found that Hernandez was negligent, but his negligence was not a substantial factor causing the harm. Plaintiffs' motion for new trial was denied, and plaintiffs appealed on grounds of verdict inconsistency, insufficient evidence, and erroneous denial of motion for new trial. The Court of Appeal, Second Appellate District, Division Six, reversed.

In denying the motion for new trial, the trial court had stated that Hernandez violated the Vehicle Code by parking his truck on the wrong side of the highway, and that the tail end of his truck would not have been in the southbound lane of the highway but for his entering the highway from the wrong side; but there was "sufficient evidence through expert testimony that a jury could have found a reasonable driver who was paying attention to his or her driving and the road in front of him or her would have seen the truck bed in their lane in time to take evasive action and that the lack of attention on the part of the plaintiff driver was in fact the cause of the accident."

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May deficiency in special verdict on essential elements required to establish liability be satisfied by trial judge inference and the finding affirmed on appeal as harmless error?

In what it described as a "first impression case," the Court of Appeal, Second District, Division Six, affirmed the trial court's inferring necessary findings from a defective special verdict because the defect constituted "harmless error." The very first sentence of the court's opinion in Taylor v. Nabors Drilling USA, LP (filed 1/13/14) B241914 gives this answer. That the appellate court is applying harmless error analysis to what has widely been viewed as structural error, and that the court does so without prior express legal authority, strongly suggested that the case may be appropriate for review. However, on April 16, 2014, the California Supreme Court denied the petition for review filed by appellant Nabors.

Before synopsizing the opinion, a disclosure is in order. Appellant was represented in this matter by Dowling Aaron Incorporated, which sponsors this blog, and with whom I have been of counsel since my retirement from the Court of Appeal, Fifth Appellate District.

In Taylor, respondent went to jury trial against appellant, his former employer, on claims of wrongful termination and hostile work environment sexual harassment, failure to prevent sexual harassment, and unlawful retaliation under the California Fair Employment Housing Act (FEHA); and termination in violation of public policy. The evidence strongly supported bad behavior committed against respondent from day one by two of his supervisors. One, Joe Mason (who obnoxiously supervised respondent previously with a different employer before they both became employed by respondent in June 2010) constantly used homosexual epithets when referring to respondent, and committed other debasing stunts against him. As Mason was well aware, respondent had a girlfriend and denied he was homosexual. A second supervisor, Jaime Mendez, who testified he did not consider Respondent to be gay, would spank defendant, ask him to sit on his lap, and on one occasion, urinated on respondent. Respondent testified that he was "infuriated, disgusted and humiliated" by this conduct.

In September 2010, respondent complained to appellant employer about the harassment. After an investigation, Mason was terminated; Mendez stayed on the job, but stopped harassing respondent. On December 19, 2010, appellant terminated respondent's employment for the following reasons: often late to work, missed a mandatory safety meeting, left shifts early without permission while falsely declaring that he had permission, and cursing at Mendez when asked to perform a work task.

The jury found for appellant on all of the claims except for the claim of hostile work environment sexual harassment. On that cause of action, respondent was awarded $10,000 economic plus $150,000 non-economic damages. FEHA-based attorney fees were awarded by the trial court in the sum of $680,520.

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Where a sanction award is statutorily appealable, may the merits of a medical damages discovery dispute resulting in that sanction be reviewed at the same time?

February 14, 2014

file0001257337525.jpgIn Dodd v. Cruz (filed 2/5/2014) B247493, Dodd sued Cruz for injuries sustained in a vehicle accident, including medical surgical expenses he incurred with Coast Surgery Center as a result of the accident. Coast sold to Medical Finance LLC (MedFi) its medical lien for services provided to Dodd. (MedFi's president is Dodd's attorney, Waks.) Cruz sought discovery of documents relating to the lien transaction via subpoena; MedFi succeeded in a motion to quash the subpoena (joined by Dodd), including the trial court's award of $5,600 in sanctions. Cruz appealed the sanction order (sanctions in excess of $5,000 being immediately appealable under Code of Civil Procedure section 904.1, subd. (a)(12).). The Court of Appeal, Second Appellate District, Division Three, reversed the granting of the motion and awarding of sanctions.

The documents sought by Cruz were a contract between Med-FI and Coast that predated Dodd's surgery, a redacted assignment of the claim dated the day of the surgery, and "MedFi's Open Lien Detail;" these documents included evidence of the amount paid for its lien. MedFi objected on grounds of confidentiality, proprietary rights, and relevance. In its motion to quash the subpoena of the documents, MedFi claimed it would incur attorney fees of $5,600 in prosecuting it motion. The trial court granted the motion on grounds of relevancy and awarded the requested sanctions.

Respondents to the appeal first contend the trial court order to quash was not reviewable on a statutory appeal of the sanctions order. The appellate court disagreed, finding that a discovery ruling is reviewable if it "necessarily affects" an appealable order (section 906); here the underlying discovery ruling was "inextricably intertwined" with the monetary sanctions order.

Next, the Court Appeal discussed respondents' contention that the subpoena was not directed at obtaining any documents relevant to this personal injury litigation. It was undisputed that the amount of economic damages, if any, that Dodd may recover for his medical treatment by Coast was one of the subject matters of the lawsuit. The court thus reviewed the measure of damages for past medical expenses: the lesser of the reasonable value of the medical services and the actual amount paid to discharge that obligation. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555.) The court found that the subpoena was reasonably calculated to lead to discovery of admissible evidence of reasonable value of the services. Coast's belief of reasonable value, allowing for the risk and expense of collection, could be explained from the amount it received for conveying the lien to Medfi. As a part of this inquiry, what a medical provider is willing to accept in relinquishing its claim may be an adjustment downward from the face amount of its gross billing.

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Does employer owe preconception duty-of-care to child of employee for harmful work environment, and is "duty" necessary to prove strict liability?

office-supplies-2-892172-m.jpgIn El sheref v. Applied Materials, Inc. (filed 1/27/14) H038333, the father of the plaintiff minor worked as an engineer at defendant's semiconductor manufacturing facility. Father's duties included working with tools containing mercury and ethylene glycol and being exposed to ionizing radiation. Defendant provided information, training, and medical advice to employees to assess and reduce potential workplace hazards. At one point, father was examined by a physician to authorize his wearing of a respirator at work; that examination included a questionnaire that posed, among its inquiries, some questions about his reproductive history. At another point, a report was completed by employer concerning whether a subject tool leaked mercury. No mercury was detected, according to the report, but the report went on to direct measures for limiting employees' skin from mercury exposure. Minor's mother conceived and gave birth to him during father's employment.

Minor was born with birth defects, alleged in his lawsuit to have resulted from father's exposure to reproductively toxic chemicals. The lawsuit further alleged that defendant knew or should have known of this danger, and failed to adequately protect its employees; that serious injury was a probable result to employee's future children. The causes of action asserted were negligence, strict liability/ultrahazardous activity, willful misconduct, misrepresentation and strict products liability. In the trial court, defendant moved for summary adjudication arguing that no legal duty was owed to minor for preconception injuries; only medical professionals and manufacturers related to conception/pregnancy owe such a duty of care. The trial court agreed. Through his guardians, minor appealed.

The Court of Appeal, Sixth Appellate District, concluded defendant employer did not owe a preconception duty to minor; however, because minor's strict products liability claim did not require the proof of duty, the court reversed the judgment with directions to the trial court to reinstate that cause of action.

A cause of action for a preconception tort was recognized by the California Supreme Court in Turpin v. Sortini (1982) 31 Cal.3d 220; the court narrowly limited such liability to negligent medical treatment of a mother during pregnancy or before conception. Liability was sought to be extended to a motorist who caused an accident that injured a mother years before she gave birth to a child born with a health defect in Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103. The Hegyes court found no liability could arise because defendant's conduct was not inextricably related to an inevitable future pregnancy, and there was neither a special relationship nor foreseeable injury.

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Real Estate Recovery Program provides recovery for broker's fiduciary breach if factual findings supporting judgment state conduct constituting deliberate fraud

real estate broker.jpgCalifornia Business & Profession Code section 10471 is a "remedial statute intended to protect the public from loss resulting from unsatisfied damage awards against licensed real estate personnel." (Doyle v. Department of Real Estate (1994) 30 Cal.App.4th 893.) It is punitive in the sense that an agent's license is immediately suspended if the state pays from the fund and that license will not be reinstated until the payment is paid back in full. It is limited in that it only applies to an unsatisfied judgment for intentional fraud.

In Worthington v. Davi (G045537, filed August 7, 2012), plaintiffs arbitrated three transactions claiming breach of fiduciary duty and one transaction claiming fraud committed by their real estate broker and others, and received a total award of $280,000. The award was confirmed in a judgment which went unpaid. Plaintiffs applied to the state's Real Estate Commissioner for recovery from the 10471 recovery fund. The Commissioner allowed recovery of $50,000, allowing recovery only on the "fraud" transaction, and disallowing the other three.

Plaintiffs applied to the trial court for an order directing payment of the judgment from the recovery fund as to the remaining three transactions. The trial court ordered payment on two of these three. On these three transactions, the arbitrator did not expressly state the award was for "fraud." The trial court found that in two of these transactions, there was a breach of fiduciary duty resulting from fraudulent transactions. However the remaining fiduciary transaction involved no sufficient stated showing of fraud. Both sides appealed.

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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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Appellate Review: Are Some Cases Getting Decided Less on Principles of Limited Review and More Based on Expediency of Result?

In my previous "career" as a justice on the California Court of Appeal, Fifth Appellate District, where I served for 21 years, I found there were times in deciding cases that the temptation arose to dispose of matters based on my instincts of the merits of a case rather than the standard of appellate review for the particular proceeding or the case as briefed by the parties. For example, on review of dismissal of a case that was based upon the trial court granting a motion for summary judgment, one might look at the weak prospect of success by the appellant, should the judgment be reversed and sent back to the trial court, and be tempted to simply affirm instead. However, if there existed a triable issue as to a material fact, even if the appellant's case on the facts appeared weak, one is compelled under California Code of Civil Procedure section 437c to reverse and let the chips fall where they may. A review of some recent cases suggests that some appellate panels are yielding to the temptation under similar circumstances to what I have described. My last blog gives the example of the recent Tamkin case.

About two weeks ago I came across an unpublished case where the trial court had invalidated purported amendments by a decedent to her trust on the sole basis that her initials on the pages of amendment did not constitute a valid signature. The appellate court found this reasoning erroneous, that decedent's use of her initials as her signature did not invalidate the purported amendments. However, the court proceeded to analyze factual disputes undetermined by the trial court, without citing authority for this analysis, to decide that factually the trust was otherwise not effectively amended; because the result was correct in the court's view, it affirmed rather than remand the matter for the trial court to resolve the issues.

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The Stretching of California's Anti-SLAPP Statute: Are Appellate Tribunals Becoming Triers of Fact?

In Tamkin v. CBS Broadcasting, Inc.(filed March 1, 2011) 2011 DJDAR 3285, CBS writer Sarah Goldfinger had offered to purchase a home from sellers represented by real estate agents Scott and Melinda Tamkin, husband and wife. Goldfinger cancelled the transactions based on the expense it would take to remedy problems revealed by a home inspection. Normally, these parties would simply go their separate ways. But Goldfinger had the bright idea to write an episode for the CBS series CSI using the names Scott and Melinda Tamkin for real estate professionals where Scott becomes a suspect in the killing of his wife Melinda. Preliminary drafts were utilized to break down the roles with synopses that included the "Scott Tamkin" character as a "hard-drinking extensive bondage/porn-watching" mortgage broker, and the "Melinda Tamkin" character as an attractive, athletic real estate agent who dies under suspicious circumstances, possibly as a result of her husbands conduct "during kinky sex." These casting descriptions were sent to talent representatives in Los Angeles and somehow leaked to the internet. The episode was telecast on February 12, 2009 with the exception the last name "Tucker" was substituted for "Tamkin."

About three months later, the real-life Tamkins filed suit for defamation and false-light invasion of privacy. Defendants CBS and Goldfinger filed an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion pursuant to California Civil Code section 425.16, which was denied in the trial court. The Court of Appeal, Second Appellate District, Division Four, reversed instructing that the anti-SLAPP motion be granted, meaning plaintiffs' case will be dismissed.

As the appellate court notes, this statute provides "a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." The defendants must show their conduct arises from protected activities. If they meet this burden then the action will be dismissed unless plaintiffs demonstrate there is a probability they will prevail on their claims. Regarding defendants' burden, the focus is on the specific nature of the asserted protected conduct, not just some abstract generality. (See Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337.) If the conduct is protected, it must be in the furtherance of a right to free speech (see Lieberman v. KCOP Television, Inc (2003) 110 Cal.App 4th 156) and connected with the public interest (see Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027). Here, the appellate court found (1) the protected activity to be the use of the Tamkins' names as a "real estate couple" in the published casting synopses, (2) the creation of a television show as the free speech right which this conduct acted to further, and (3) this CSI episode to be a matter of public interest. Having so found, the court then finds that plaintiffs did not carry its burden of demonstrating a probability they would prevail on any of their claims.

My focus is on the defendant's burden here. Is there any kind of broadcast activity that would not qualify under this court's loose analysis? I submit that the application of this prong of this statute, intended to protect the valid exercise of constitutional rights, is being stretched beyond the statute's intended purpose. Not only does this application of the statute's first prong force the plaintiff to prove probability of success at trial, it gives the appellate court the ability to early-on substitute its judgment of the facts in the place of a jury. And for succeeding on the motion, defendants get statutory attorneys fees to boot. It could well be that defendants would ultimately prevail on summary judgment or at trial, but let's let that procedure play itself out rather than tenuously so find on the basis of protecting against the chilling effect on a television show's supposed constitutional right to carelessly embarrass presumably law-abiding citizens and besmirch their good names. It seems like the protective intent of the statute has been turned up on its head. There will be more about the role of the appellate courts in my next posting.