California Appellate Lawyer Blog

The above two questions are presented in Garrett v. Howmedica Osteonics Corp. (filed 3/6/2013) B238304. Plaintiff Garrett was treated for cancer in his left femur by an orthopedic surgeon who implanted a prosthetic device, designed and manufactured by defendants, the surgeon had selected to replace the middle portion of the femur. When plaintiff complained about the pain in his thigh approximately 1½ years after the surgery, the surgeon discovered a fatigue fracture in the prosthesis, which had to be replaced in a second surgery.

Plaintiff sued the device-providing defendants for strict product liability (manufacturing defect, design defect, and failure to warn), breach of express warranty, and negligence. These defendants filed a motion for summary judgment claiming no defect factually, and no duty to warn as a mater of law. The motion was accompanied by a declaration of their expert mechanical engineer who said the prosthesis was not defective and the fracture was caused by an excessive load that the product could not bear over time.

Conceding the failure-to-warn claim could not be established, plaintiff otherwise opposed the motion with its own expert metallurgist's declaration which stated that he tested the prosthesis material and found it failed to meet certain minimum requirements for hardness, making the product defective in manufacture and design in his opinion. Defendants objected to most of the substantive portions of this declaration. The trial court sustained the objections and granted the motion, which caused judgment to be entered in favor of these defendants.

Plaintiff appealed, contending exclusion of major portions of its expert's declaration was error, and that triable issues of fact remained. The Court of Appeal, Second Appellate District, Division Three, reversed, vacating that portion of the summary adjudication concerning manufacturing defect and negligence, but directing summary adjudication of the remaining causes of action. In particular, it held that the trial court failed to liberally construe the plaintiff's expert's declaration, causing the sustaining of the objections to be an abuse of discretion.

Continue reading "Can product-design-defect strict liability apply to implanted medical devices? When can expert declaration be excluded on MSJ?" »

When I read this opinion, my first thought was "Oh, oh, there goes my AAA membership fee." An increase in my annual fee may not necessarily occur. But the California Court of Appeal, Second Appellate District (Division Two) opinion in Monarrez v. Automobile Club of Southern California (filed November 20, 2012) 2012 DJDAR 15745, will likely cause some changes in how Auto Club and similar roadside service agencies operate.

Plaintiff, an Auto Club member, suffered catastrophic injuries when he was struck by a hit-and-run driver while receiving roadside assistance for a flat tire. Auto Club had dispatched a road assistance technician employed by one of its contracting companies who agreed to respond to road service calls made to Auto Club from its members. Auto Club vetted these companies before contracting with them, and this particular company had been an Auto Club contractor for more than 20 years; 85 to 90 percent of the company's business was with the Club. Auto Club provided service guidelines, a training manual and seminars, and monitored performance. The Club visited provider companies two to three times a month. This company's agreement, like others, promised to act in a "safe" manner in guaranteeing the provision of proficient service.

In particular, technicians are instructed in the training manual to minimize a member's time standing on the traffic side of the disabled vehicle and, on a tow, to promptly get the member into the tow truck. This technician understood the member's safety was the top priority, but admitted he failed to explain to plaintiff the danger of standing on the freeway. In this instance, the technician advised plaintiff the technician needed to move the disabled vehicle by towing it to a safer location in order to change the tire. He asked him to get into the tow truck, but proceeded first to load the vehicle onto the tow truck realizing plaintiff had not yet gotten into the truck. When he completed loading the vehicle, he observed plaintiff, who had been out of his view during this process, had been struck be a motorist.

The trial court granted the Auto Club's motion for summary judgment finding the agreement between Auto Club and the provider company expressly defined the service provider as an independent contractor with Auto Club, which had no control over the manner of performance by the roadside service. On plaintiff's appeal, the appellate court reversed, determining that the issue of actual or ostensible agency cannot be decided as a matter of law from the submitted evidence. From this evidence, stated the court, it could not conclude that Auto Club had no right of control over the manner and means by which its technicians accomplish their work. In addition to the control the Club exercised in this relationship, there were practical facts that could lead a jury to find ostensible agency, such as the technician's uniform and vehicle bearing the Auto Club logo. (See Civil Code section 2300.) Because there were triable issues of fact regarding agency, the summary judgment was reversed.

This opinion should cause some concern to parties who might feel they are insulated from potential liability for the acts of a party expressly labeled as an "independent contractor." They must always be concerned as to whether their conduct infers the relationship is more that of ostensible agency.

California Government Code section 815.6 exempts a public entity from immunity if it has failed to discharge a statutory "mandatory duty" designed to protect from injury. Los Angeles County Code (LACC section 10.12.090C states that the county animal care and control department "shall capture and take into custody . . . [a]ny animal being kept or maintained contrary to [LACC sect. 10.40.010W]." That section states, "No animal shall be allowed to constitute a hazard or be a menace to the health, peace or safety of the community."

In County of Los Angeles v. Superior Court (Faten) (filed September 5, 2012, certified for publication on Sept. 20) 2012 DJDAR 13264, minor Kameron Faten and his two bothers were walking home from school when two pit bulls jumped over the fence of John Boles' residence and viciously attacked Kameron. The boys' parents sued on their behalf for personal injury and emotional distress, naming Bowles, his landlord and the County of Los Angeles.

The County moved for summary judgment in the Superior Court, claiming the above-cited portions of the county ordinance were merely discretionary or permissive, thus it was immune and owed no duty.

The evidence reflected that on one occasion, a pit bull running loose in the neighborhood was seized and eventually euthanized, but not identified with any residence or owner. The County had received 9 previous telephone calls about the many pit bulls that had been at the Bowles' residence during the past two-and-a-half years before the attack on Cameron. Pit bulls at the residence were reported to have jumped the fence, to have run loose and chase people. However, County animal control officer were unable to find any dogs of the Boles to be running loose. Officers had gone to the residence and posted notices, finding no responsible person home except on one occasion. The one time contact was made with a member of the Boles family occurred three months before the Faten incident when an identified neighbor reported that two pit bulls had jumped the Boles' fence and killed two of her goats in her yard. Officers gave written notice at that time that the Boles could keep no more than 3 dogs.

Continue reading ""Shall" is not always mandatory language; LA County not required to capture pit bulls because whether "hazard" is discretionary decision under immunity statute " »

The general history of the instant foreclosure is all too familiar. Home loan borrower starts with a low adjustable rate loan based on now-bygone high home values. The interest adjusts in a few years to more than twice the original rate, more than doubling the homeowners' payment on a home that now is substantially "underwater" due to decreased home values. Eventually, the lender itself goes under and is replaced by a successor.

In Ragland v. U.S. Bank National Association, Inc. (filed September 11, 2012) 2012 DJDAR 12769, we have the added facts that the borrower, Pam Ragland, had remained current on her mortgage obligation up to April 2008, when she spoke about loan modification to a lender representative who told her she would have to get "behind" on her loan in order to modify the loan. Additionally, Ragland had executed her note after complaining that her signature had been forged on other loan documents (confirmed by a handwriting expert). She thought this part of her loan history justified her request to have the lender waive the normal modification fee. The rep said he would get back to her. As she was not certain she wanted to miss her loan payment and apply for a modification without further assurances and she did not hear back at the time for her to make her April 2008 payment without incurring a late charge, she called the rep again. He referred her to his supervisor who stated that if any documents in her loan packet had been forged, she may not be responsible for anything in her loan. She was advised not to pay anything while the legal department investigated.

By late April 2008, Ragland received a delinquency notice from the lender. She immediately called and was advised by two separate reps not to worry because collection activity was frozen. Still nervous about all of this, she attempted to transmit a loan payment, which was refused by the lender. On May 5, 2008 she received a notice of foreclosure. Yet another call to the lender was responded to: legal department will get back to you. Predictably, she did not hear back and instead was greeted by another letter in early July 2008 that advised foreclosure was under way. She again got the "runaround," being told her situation was not properly flagged with legal and the foreclosure would be on hold. She again tried to make mortgage payments, three in this instance, which were again rejected. The foreclosure went forward and she filed her lawsuit.

Continue reading "Triable issues of lender fraud requires reversal of summary adjudication of claims for damages caused by foreclosure " »

Plaintiff Cang Wang suffered critical injuries when struck by the vehicle driven by Amr Sarieh, who had lost consciousness at the wheel as a result of an epileptic seizure. Sarieh recently had his driving privileges restored based on an evaluation filed with the DMV by his treating neurologist defendant Christianne Heck, M.D., clearing him to drive. In Wang v. Heck (filed January 24, 2012, certified for publication February 12, 2012) 2012 DJDAR 2131, the Court of Appeal, Second Appellate District, Division Four, affirmed the trial court's grant of summary judgment dismissing the lawsuit against Dr. Heck.

The litigation privilege is found in California Civil Code section 47, subdivision (b), and affords litigants and witnesses in judicial and quasi-judicial proceedings freedom of access to these processes without fear of being harassed by later lawsuits against them for testimony they give or steps they take in connection with those proceedings. (See Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The appellate court in Wang agreed with the trial court that defendant's form evaluation presented to the DMV fell within this privilege and barred plaintiffs action.

The Court of Appeal rejected plaintiff's argument that defendant's negligent conduct was her failure to warn Sarieh not to drive, which was independent of her completion of the DMV evaluation form; failure to warn her patient was not a communication within the litigation privilege according to plaintiff.

The court cited Gootee v. Lightner (1990) 224 Cal.App3d 587, where the defendant psychologist had performed testing on plaintiff's family in order to testify in child custody proceedings; claims against this court expert acting in a testimonial capacity are barred. Similar reliance is placed on Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386 concerning the claim that a toxicologist was negligent in reaching findings as to cause of death. Because the gravamen of plaintiff's claim in the instant case was Dr. Heck's completion of the DMV evaluation form, the litigation privilege likewise extended to her conduct.

Continue reading "Neurologist's DMV seizure evaluation of patient privileged in barring patient-caused accident claim of injured party" »

In Howard v. Omni Hotels Management Corp. (filed January 11, 2012, certified for publication February 8, 2012) 2012 DJDAR 1786, plaintiff injured himself as a result of a slip and fall in the bathtub while staying at one of defendant Omni's rooms in San Diego. He sued Omni for premises liability and negligence; he also sued the bathtub manufacturer, Kohler, for negligence and strict liability. Both defendants succeeded on summary judgment; however, the trial court set aside the judgment in favor of Omni when it granted a motion for new trial on the grounds that there were triable issues of fact regarding the existence of constructive notice of an unreasonably dangerous condition concerning two previous bathtub accidents in another Omni hotel.

The Court of Appeal, Fourth Appellate District, Division One, affirmed as to Kohler and reversed as to Omni with directions to enter a defense summary judgment. Concerning the claims against Kohler, the court found that plaintiff failed to present a sufficient factual basis supporting the application of a higher safety standard for the bathtub than the industry safety standards as proven to have been exceeded by defendants. As to Omni, plaintiff failed to show that the asserted prior incidents were substantially similar.

The ruling in favor of Kohler illustrates that a plaintiff does not necessarily get past a summary judgment by presenting the declaration of a "dueling" expert. Here plaintiff presented its expert's opinion that a greater standard than the industry standard would be better. However, the appellate court agreed with the trial court that merely contraverting what was a better standard did not create a triable issue. Kohler's exceeding the industry standard creates a presumption of non-defect/due care unless plaintiff could show Kohler had knowledge of greater than the expected dangers that should have been addressed by a higher standard of design.

Another common misconception is that a prior accident of the same general nature puts a defendant on notice of the danger that caused a present accident. Here, Omni had experienced two prior bathtub accidents in one of its hotels across the country, in New Haven, Connecticut. But the evidence presented by plaintiff did not give any detail about the condition of the other bathtubs or the medical condition of the hotel guests who fell. Plaintiff had the burden to show sufficient similarity and the court here failed to find sufficient evidence that the plaintiff had done so. (See Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.)

"If at first you don't succeed, try try again." This familiar saying first appeared in the 19th century writings of American educator Thomas H. Palmer to encourage school children to do their homework. In Johnson v. Chiu (filed September 29, 2011) 2011 DJDAR 14825, both sides take this maxim literally.

Plaintiff Johnson went to defendant Chiu for a laser treatment, during which she claimed she was injured when the laser machine emitted a loud booming sound causing lost hearing and vertigo. Her complaint initially named Chiu in the first cause of action only for negligent examination, care and treatment. Another cause of action named Doe defendants as the parties responsible for negligent maintenance of the laser equipment. Chiu sought summary judgment. Johnson amended her negligent maintenance claim the day before she filed her opposition to the summary judgment motion to name Chiu as a Doe defendant. In her opposition, she argued that Chiu should not prevail because all theories of liability brought against him had not been negated. The Orange County Superior Court granted summary adjudication in Chiu's favor on the malpractice claim, but denied summary judgment because of the remaining negligent maintenance claim. A later motion for summary judgment by Chiu on the remaining claim was denied.

The case was then sent to a second judge for trial. Chiu brought another motion to dismiss, via a motion in limine. Denied. Undeterred, Chiu sought extraordinary relief. Again denied. The case got reassigned to a third trial judge, before whom Chiu brought yet another motion in limine to foreclose Johnson from proceeding on her negligent maintenance claim because of the summary adjudication of the malpractice claim. Bingo! The motion was granted and case dismissed.

Continue reading "Claims of medical malpractice and negligent equipment maintenance involve separate acts making latter actionable even where former dismissed " »

In Hennigan v. White (California Court of Appeal, Third Appellate District, filed September 20, 2011) 2011 DJDAR 14269, plaintiff went to defendant's business, a day spa, to have permanent cosmetics injected into her eyelids and eyebrows. After the initial injections of pigment, plaintiff received a touch-up performed about 2 months later. One month after the touch up, plaintiff started experiencing adverse reactions and was eventually diagnosed with a bacterial infection in her eyebrows and eyelids; included in the side-effects, she suffered eyelid droop which she surgically repaired. Although the label on the pigment bottle stated "spot testing is required," defendant did not perform a patch test prior to the injections because plaintiff did not advise her that she had sensitive skin or was vulnerable to allergic reactions.

Plaintiff sued for damages caused by her injuries claiming negligence and product liability. Defendant moved for summary judgment. The Sacramento Superior Court granted the motion finding plaintiff failed to submit sufficient facts to establish either cause action. There was no evidence, the court ruled, that the pigments were defective; nor was defendant negligent in failing to perform a patch test. Plaintiff appealed.

The Court of Appeal affirmed the judgment. Regarding the claim of negligence for failure to perform the patch test, the court stated that, even assuming that defendant breached her duty of care (and plaintiff stated that defendant "had done nothing wrong"), there was no evidence that such breach proximately caused plaintiff's injuries. Interestingly, plaintiff's own medical expert stated that it may take up to a year before an allergic reaction manifests itself. Assuming that to be true, a patch test likely would show no immediate reaction, but still a reaction might develop months later. The fact here were that plaintiff had no adverse effects until three months after the initial application, so a patch test here would have shown nothing.

Continue reading "Allergic reaction to product does not establish triable issue of liability" »

In Zeinali v. Raytheon Company (United States Court of Appeals, Ninth Circuit--filed April 4, 2011) 2011 DJDAR 4839, plaintiff, an ethnic Iranian, was terminated by defendant employer from his four years of employment as an engineer. He was required by the employer to apply for and be granted security clearance by the United States Department of Defense. When that request was denied, defendant terminated plaintiff. Defendant was granted summary judgment in the trial court on plaintiff's action that included the allegation that defendant violated the California Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq.,by terminating plaintiff on the basis of his national origin. The Court of Appeals reversed.

The critical question on appeal was whether plaintiff had met his burden of introducing evidence that the reason for termination stated by the employer was pretextual. (See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).) The court concluded he had satisfied his summary judgment burden by introducing evidence that defendant terminated him while retaining at least two similarly situated non-Iranian engineers who lacked security clearance.

Plaintiff did not dispute the validity of the government denying him security clearance. The court generally recognized that security clearance can be a valid requirement for employment in appropriate circumstances. However, this case presented a triable dispute concerning whether a security clearance was in fact a "bona fide occupational qualification." Here, the fact that the employer had retained multiple non-Iranian engineers after their security clearance had been revoked demonstrated a concern not unlike the observation of the United States Supreme Court in McDonnell Douglas at p. 804 : "Especially relevant to such a showing [of pretext] would be evidence that white employees involved in acts against [the employer] of comparable seriousness . . . were nevertheless retained or rehired."

I have learned from hearing employment discrimination cases as a judge, and now as a neutral at Dowling Aaron Incorporated, that employers often are surprised when they cite a facially valid reason for terminating an employee only to find that the employee is allowed to refute that claim by demonstrating an underlying discriminatory basis for the adverse employment action. Employers and their management personnel are wise to receive periodic counseling from knowledgeable California employment lawyers such as those at Dowling Aaron Incorporated before they end up facing the kind of lawsuit that is presented here.

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.

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