1. (Fed/State Med Mal Law Conflict) When state’s affidavit-of-merit requirement for medical malpractice actions conflicted with federal rules regulating the same civil procedure, federal rules prevailed. Supreme Court of the United States; Berk v. Choy (No. 24-440 Argued October 6, 2025-Decided January 20, 2026)
2. (Five Year Rule) Civil defendant’s failure to object to trial date beyond statutory period for bringing action to trial was not an agreement to extend the deadline, necessitating dismissal once the period expired. Teresa Randolph v. Trustee of the California State University (No. C102901 Super. Ct. No. 19CV01226 California Court of Appeal Third Appellate District Filed January 15, 2026)
3. (998 Offer) 998 settlement offer contingent upon acceptance by defendant’s insurer was valid because settlement with parties defended by insurers are always implicitly premised on such conditions. Maynard Matthews v. Patrick Ryan (B335736, B338256, B339211 Los Angeles County Super. Ct. No. 19STCV10899 California Court of Appeal Second Appellate District Division One Filed January 28, 2026)
4. (DMV Disclosure) Driver’s license holder’s procedural due process rights were not violated by Department of Motor Vehicle’s refusal to disclose identity of third-party reporter who requested reevaluation of licensee’s ability to drive. Richard Louis Brown v. Department of Motor Vehicles (No. C102554 Super. Ct. No. 24WM000142 California Court of Appeal Third Appellate District Filed January 30, 2026)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

1. (Fed/State Med Mal Law Conflict) When state’s affidavit-of-merit requirement for medical malpractice actions conflicted with federal rules regulating the same civil procedure, federal rules prevailed. Supreme Court of the United States; Berk v. Choy (No. 24-440 Argued October 6, 2025-Decided January 20, 2026)

In this matter, the United States Supreme Court was asked to decide whether a Delaware law that required an affidavit of merit accompanied by a civil complaint in medical malpractice matters including in federal court was enforceable under the Federal Rules of Civil Procedure.

Delaware law provided that a plaintiff could not sue for medical malpractice unless a medical professional attested to the suit’s merits in an affidavit of merit that accompanied the plaintiff’s complaint. The plaintiff sued the defendant physician and medical center in federal court for medical malpractice under Delaware law but failed to provide the affidavit of merit required by Delaware law. The medical center and physician argued that the Delaware law was not enforceable in federal court because it is displaced by the Federal Rules of Civil Procedure. The District Court dismissed the lawsuit for failure to comply with Delaware’s affidavit law. The Third Circuit affirmed.

The United States Supreme Court reversed finding that Delaware’s affidavit law did not apply in Federal Court. When a plaintiff brings a state law claim in federal court, the court faces a choice of law problem: whether to apply state or federal law. The Rules of Decision Act directs federal courts to apply state substantive law unless the Constitution, a treaty, or a statute otherwise requires or provides. When a valid Federal Rule of Civil Procedures is on point, it displaces contrary state law even if the state law would qualify as substantive law. The analysis is straightforward: The Court first asks whether a Federal Rule answers the disputed question. If a Federal Rule does, it governs, unless it exceeds statutory authorization or Congress’s rulemaking power. In this case, the Federal Rule does not require anything aside from a plain statement of the claim showing that an individual is entitled to relief pursuant to the Federal Rules of Civil Procedure. Therefore, the Delaware of merit affidavit rule was unenforceable in federal court as it countered the federal law requirement.

2. (Five Year Rule) Civil defendant’s failure to object to trial date beyond statutory period for bringing action to trial was not an agreement to extend the deadline, necessitating dismissal once the period expired. Teresa Randolph v. Trustee of the California State University (No. C102901 Super. Ct. No. 19CV01226 California Court of Appeal Third Appellate District Filed January 15, 2026)

Plaintiff sued a former employer and several others for claims related to employment discrimination. The trial court granted the defendant’s motion to dismiss based upon the plaintiff’s failure to bring the action to trial within five-and-a-half-year statutory deadline under Code of Civil Procedure section 583.310 and Judicial Council emergency rule 10. The plaintiff appealed, asserting the trial court erred because defendants orally stipulated to an extension of the statutory deadline by not objecting to the trial court’s setting the trial date beyond the deadline. The appeals court disagreed and affirmed the trial court’s ruling. It found that a defendant simply agreeing to a continuance of the trial was not an oral agreement to extend the five-and-half-year rule. In this matter there was no transcript from the hearing where the trial date was set beyond the mandatory deadline. Nothing in the court’s minute order from the conference indicated an agreement to a trial date beyond the statutory deadline. Where a minute order is silent on any discussion relating to the trial date, courts may not infer that the defendant expressly agreed to a new trial date. Accordingly, the dismissal was mandatory.

3. (998 Offer) 998 settlement offer contingent upon acceptance by defendant’s insurer was valid because settlement with parties defended by insurers are always implicitly premised on such conditions. Maynard Matthews v. Patrick Ryan (B335736, B338256, B339211 Los Angeles County Super. Ct. No. 19STCV10899 California Court of Appeal Second Appellate District Division One Filed January 28, 2026)

Defendant appealed from judgment in favor of the plaintiffs in an action arising from an automobile accident. Plaintiff cross-appealed from two postjudgment orders, one denying their request for prejudgment interest under Code of Civil Procedure section 998 and Civil Code section 3291, and one denying a request for cost of proof under the California Civil Discovery Act.

Plaintiffs contended that the trial court erred in finding that their pretrial settlement offer invalid under California Code of Civil Procedure section 998, because it was conditioned on the consent of the defendant’s insurer. The appeals court agreed with the plaintiffs. A defending insurer is not bound by a settlement to which it does not consent. Thus, the defending insurer’s consent was not necessarily a condition of settlement whether so stated in the settlement offer. Plaintiffs’ express inclusion of that condition in their offer was redundant and did not render the offer invalid under Code of Civil Procedure section 998. Because the trial court did not address defendant’s contention that the plaintiffs’ offer was unreasonable and in bad faith, the appeals court remanded the matter back to the trial court to address this issue. Accordingly, the court affirmed the judgment and the order denying costs of proof and reversed the order denying prejudgment interest under Code of Civil Procedure section 998 and Civil Code section 3291.

3. (DMV Disclosure) Driver’s license holder’s procedural due process rights were not violated by Department of Motor Vehicle’s refusal to disclose identity of third-party reporter who requested reevaluation of licensee’s ability to drive. Richard Louis Brown v. Department of Motor Vehicles (No. C102554 Super. Ct. No. 24WM000142 California Court of Appeal Third Appellate District Filed January 30, 2026)

The DMV temporarily suspended the appellant’s driver’s license after conducting a driver re-examination initiated by an undisclosed third-party reporter. The appellant filed a petition for writ of mandate with the trial court demanding the department provide the name of the reporter; the trial court denied the petition. On appeal,
the appellant contended the nondisclosure of the reporter’s identity violated due process. The appellate court affirmed.

By way of background, an undisclosed third party reporter filed a form with the DMV to reevaluate the appellant’s driving ability. The DMV required him to submit to a medical evaluation. The appellant’s physician reported no observable impairments affecting driving but recommended a driving test. At a hearing, the appellant was told he needed to take the written and driving test. The appellant failed the driving test and his license was suspended. The following day, a different hearing officer concluded that the appellant should not have been subjected to testing because no medical basis existed and reinstated his license. The appellant then filed its petition for writ of mandate seeking disclosure of reporter’s identity and criminal prosecution of the reporter for allegedly submitting false information. The trial court denied the petition, concluding the public interest in maintaining reporter confidentiality outweighed the appellant’s interest in disclosure and the appellant appealed.

The appeals court found that the appellant’s due process rights were not violated. Although a driver’s license is a protected property interest, the risk of erroneous deprivation from nondisclosure of the reporter’s entity was low: the procedures afforded to the appellant were notice, a hearing before suspension, an opportunity to retest, and a prompt second hearing that resulted in reinstatement sufficient minimizing any risk of erroneous deprivation. Based upon informant privilege principles, due process did not require disclosure of an informant’s identity where the informant was not a material witness.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. (Incarcerated Plaintiff) Because courts must ensure that all litigants have their day in court, trial court abused its discretion in not ensuring that incarcerated plaintiff had meaningful access to court. Jin Woo Park v. Michael L. Guisti (No. G063372 Super. Ct. No. 30-2021-01207342 California Court of Appeal Fourth Appellate District Division Three Filed November 20, 2025)
2. (Doe Plaintiffs) Defamation plaintiffs suing for events that occurred when they were minors could not proceed pseudonymously where no overriding interest overcame the public’s right of access to court records. Jane Roe v. Jenna Smith (No. B344378 Los Angeles County Super. Ct. No. 24STCV08102 California Court of Appeal Second Appellate District Division Two Filed November 21, 2025)
3. (Plaintiff’s Negligence) Where the evidence shows the plaintiff’s negligence was the sole proximate cause of an injury, comparative negligence need not be submitted to a jury. Janice Agustin v. Golden Empire Transit District (No. F088135 Super. Ct. No. BCV-21-102362 California Court of Appeal Fifth Appellate District Filed November 26, 2025)
4. (Restraining Order) Employee’s statement referencing workplace shooting that had occurred the previous year, coupled with his history with supervisor, constituted a credible threat of violence warranting issuance of workplace violence restraining order. County of Los Angeles v. Neill Francis Niblett (No. B327744 Los Angeles County Super. Ct. No. 22AVRO01811 California Court of Appeal Second Appellate District Division One Filed November 26, 2025)
5. (Government Claims Act) Trial court erred in denying plaintiff leave to amend pleadings to allege that defendant’s failure to register as a public entity’s excused noncompliance with the Government Claims Act’s presentation requirement. Andrew Black v. Los Angeles County Metropolitan Transportation Authority (No. B339694 Los Angeles County Super. Ct. No. 22STCV36213 California Court of Appeal Second Appellate District Division One Filed December 2, 2025)
6. (Landowner Liability) Landowner bore no liability for insurance inspector’s injuries occurring on her backyard steps when, despite being qualified as a “hirer” under Privette, the steps were not a concealed hazard. Robert Andrews v. Kurt A. Wagner (2d Civil No. B332276 Super. Ct. No. 56-2020-00544222-CU-PO-VTA) (Consol. w/56-2021-00549500-CU-PO-VTA Ventura County California Court of Appeal Second Appellate District Division Six Filed December 3, 2025)
7. (Arbitration) Trial court erred by not ordering individual plaintiffs’ wrongful death claim to arbitration, where death was allegedly caused by medical facility’s disconnection of decedent’s ventilator, not lack of custodial care. Ana Faiaipau v. THC-Orange County, LLC (No. A171351 Alameda County Super. Ct. No. 24CV069756 California Court of Appeal First Appellate District Division Four Filed December 19, 2025)
8. (Expert Witness) Trial court abused its discretion by allowing a tardily disclosed expert witness to testify at trial. Iain Paaruig Fancourt McDonald v. Areg Zargaryan (No. B329565, B331191 Los Angeles Court Super. Ct. No. 18STCV10066 California Court of Appeal Second Appellate District Division Eight Filed December 22, 2025)
9. (Amended Complaint) Despite defendant’s failure to answer amended complaint, default judgment was not appropriate where answer to the initial complaint denied allegations repeated, and necessary for claims asserted, in the amended complaint. Razan Ammari v. Sami Ammari (No. B336026 Los Angeles County Super. Ct. No. 19SMUD02318 California Court of Appeal Second Appellate District Division Four Filed December 24, 2025)
10. (Attorney Misconduct) Trial court did not err by granting motion for a new trial due to attorney misconduct. Brenda Lee Allen v. Anil Bhula Patel (No. E082051 Super. Ct No. CIVDS2011244 California Court of Appeal Fourth District Division Two filed December 23, 2025)
11. (Retained Control of Site-Bystander Injury) Where the hirer retained control over work and injured parties were innocent bystanders rather than contractor employees, trial court properly instructed that liability required substantial-factor causation, not affirmative contribution. Gloria Ruckman v. AG-Wise Enterprises, Inc. (No. F0860237 & F086187 (Consolidated) Super. Ct. No. BCV-15-101699 California Court of Appeal Fifth Appellate District Filed December 29, 2025)
12. (Service Upon Corporation) Corporations Code section 1702 service on the Secretary of State is complete ten days after delivery, even if the Secretary has not yet forwarded the service documents to defendant. Socal Lien Solutions, LLC v. BDB Properties (No. B340151 Los Angeles County Super. Ct. No. 19STCV28189 California Court of Appeal Second Appellate District Division One Filed December 31, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

1. (Incarcerated Plaintiff) Because courts must ensure that all litigants have their day in court, trial court abused its discretion in not ensuring that incarcerated plaintiff had meaningful access to court. Jin Woo Park v. Michael L. Guisti (No. G063372 Super. Ct. No. 30-2021-01207342 California Court of Appeal Fourth Appellate District Division Three Filed November 20, 2025)

Plaintiff was incarcerated at a state prison. He retained an attorney to file a petition for writ of Habeas Corpus on his behalf.

The plaintiff later filed a breach of contract claim against his attorney, alleging that the attorney had failed to submit the habeas petition to the appropriate court. A trial date was set, but the plaintiff did not appear. The court then dismissed the action.

The plaintiff appealed, in pro per, arguing that the trial court committed error in dismissing the case. The appeals court agreed. It found that the dismissal deprived the plaintiff of meaningful access to the courts as an incarcerated plaintiff. Given the plaintiff’s multiple notifications to the trial court that he was incarcerated, the court abused its discretion by dismissing the case without ensuring that the plaintiff had a meaningful opportunity to present his case in court. Therefore, the appeals court vacated the dismissal and remanded the matter back to the trial. The appeals court determined that the case should be published in the official reports as a reminder that the court system must ensure that all litigants have their day in court. When those litigants are incarcerated, additional burdens will be placed on the courts, but they are burdens that society must bear in the interest of justice. The appeals court determined that the trial court should have explored reasonable alternatives to ensure that the plaintiff had his day in court.

2. (Doe Plaintiffs) Defamation plaintiffs suing for events that occurred when they were minors could not proceed pseudonymously where no overriding interest overcame the public’s right of access to court records. Jane Roe v. Jenna Smith (No. B344378 Los Angeles County Super. Ct. No. 24STCV08102 California Court of Appeal Second Appellate District Division Two Filed November 21, 2025)

In 2022 the parties to this lawsuit were all students at the same high school. One of the students, a male, graduated in the Spring of 2022. In March of 2023, a female student began telling other students that the male student had sexually assaulted her and another female student. In April of 2023, the mother of one of the purported female students began telling parents of other students that the male student had sexually harassed her daughter. After an investigation, the school determined that the male student was not responsible for any of the claims that the female student had launched against him. In 2024, the male student and the purported female student victim sued the mother and the daughter who had claimed they had been sexually assaulted by the male student. They moved to proceed under pseudonyms, but the motion was opposed arguing that there was no basis for allowing adult defamation plaintiffs to proceed pseudonymously, even if the claims arose from events occurring while they were minors. The court granted the motion. The matter was appealed.

The appeals court reversed, it found that litigation by pseudonym should only occur in rare cases if anonymity is not expressly permitted by statute. Also, a party’s possible personal embarrassment alone does not justify concealing their identity from the public. Here, the complaint related to alleged wrongful accusations of sexual misconduct while in high school. Although these were highly sensitive and private matters concerning minors at the time of the events, it was not sufficient to overcome the public’s right of access. There was insufficient evidence that serious mental or physical harm would result from the plaintiffs identities being revealed; the plaintiffs were no longer minors when the suit was filed; the allegedly defamatory comments were already published online in the public records; the suit was against private individuals; and the defendants already knew the plaintiffs identity.

3. (Plaintiff’s Negligence) Where the evidence shows the plaintiff’s negligence was the sole proximate cause of an injury, comparative negligence need not be submitted to a jury. Janice Agustin v. Golden Empire Transit District (No. F088135 Super. Ct. No. BCV-21-102362 California Court of Appeal Fifth Appellate District Filed November 26, 2025)

Plaintiff was injured when she fell while riding as a passenger in a public bus operated by the defendant. The plaintiff sued the defendant and the bus driver. The operative first complaint alleged that the bus driver negligently operated the bus resulting in injury to the plaintiff and that the bus company was vicariously liable for the bus driver’s negligence. The trial court found that the bus’s video recording showed the plaintiff lost her balance and fell when the bus was moving in an ordinary manner. Defendants’ motion for summary judgment was therefore granted and judgment entered in the defendants’ favor.

The plaintiff appealed. After independently reviewing the record, the appeals court concluded that there was no evidence defendants acted negligently, and the bus’s video showed the sole proximate cause of the plaintiff’s injury was her own negligence. The video displayed the plaintiff standing up on the bus when she was ready to get off at her stop. She held the railing with her left hand as she stood up and walked toward the bus’s rear door holding a plastic bag with her left hand and phone to ear in her right hand. The plaintiff grabbed another railing as she moved toward the door. She let go of the railing and stumbled slightly before standing by the rear door without holding on to the rail. The bus driver pulled the bus into a circle at the bus stop and turned the bus going north toward the next stop outside of the circle. As the bus was turning, the plaintiff holding a plastic bag in her left hand and a phone to her ear in her right hand, lost her balance and fell.

4. (Restraining Order) Employee’s statement referencing workplace shooting that had occurred the previous year, coupled with his history with supervisor, constituted a credible threat of violence warranting issuance of workplace violence restraining order. County of Los Angeles v. Neill Francis Niblett (No. B327744 Los Angeles County Super. Ct. No. 22AVRO01811 California Court of Appeal Second Appellate District Division One Filed November 26, 2025)

Defendant worked as a senior mechanic for the County of Los Angeles. In October 2022, the defendant acted in a verbally abusive manner towards a fellow employee, yelling profanities in his face. About a week later, the defendant stated to a secretary for the department, “if they don’t change things department, they are going to have another situation like they had with a former employee.” A year earlier, a firefighter fatally shot another firefighter at the station. In November, the County of Los Angeles petitioned for Workplace Violence Restraining Order (WVRO) under Code of Civil Procedures section 527.8, against the defendant, naming the employee who was verbally assaulted by the defendant as needing protection. After a hearing, the trial court determined that the defendant’s statement constituted a credible threat of violence, and it issued a WVRO. The defendant appealed.

The Court of Appeal affirmed. The defendant did not dispute that he had made the underlying statement knowingly and willfully. Also, since the referenced shooting a year prior, there had been a heightened state of fear among department personnel. Moreover, management decisions had previously triggered aggressive responses from the defendant, including profanity-laden verbal altercations. Given this, the trial court rationally could have inferred it was highly probable a reasonable person hearing the defendant’s statement would have feared for his or her own safety.

5. (Government Claims Act) Trial court erred in denying plaintiff leave to amend pleadings to allege that defendant’s failure to register as a public entity’s excused noncompliance with the Government Claims Act’s presentation requirement. Andrew Black v. Los Angeles County Metropolitan Transportation Authority (No. B339694 Los Angeles County Super. Ct. No. 22STCV36213 California Court of Appeal Second Appellate District Division One Filed December 2, 2025)

Plaintiff appealed from a judgment at the trial court sustaining a demurrer in favor of the Public Transportation Services Corporation (PTSC). The trial court found that plaintiff had failed to allege he had complied with the Government Claims Act and California Government Code section 810 et. seq. (GCA) which requires plaintiffs to provide written claims for damages to public entities before filing suit against those entities.

On appeal, plaintiff claimed that the PTSC was not a public entity entitled to a prelitigation claim under the GCA. Assuming the PTSC was a public entity, plaintiff was excused from the GCA claims presentation requirement, because the PTSC did not register on the Registry of Public Agencies.

The appeals court disagreed with plaintiff that the PTSC was not a public entity for purposes of the GCA claim presentation requirement. The Los Angeles County Metropolitan Transportation Authority (MTA) created a PTSC, a nonprofit public benefit corporation, to provide retirement benefits to workers who otherwise would be ineligible for those benefits if employed directly by the MTA. The PTSC managed and supplied the workers who carry out MTA’s mission, and its powers are limited to those MTA authorizes. Under applicable case law, the circumstances of PTSC’s creation and its relationship with the MTA established public entity status. The appeals court did agree with the plaintiff, however, that the PTSC’s alleged failure to register on the Registry of Public Agency’s would excuse plaintiffs’ noncompliance with the GCA. Although defendants provided evidence PTSC is on the registry maintained by the Secretary of State, they had not demonstrated that the PTSC also has registered with the Clerks of each County in which PTSC maintains an office, as required by the statute. Plaintiff therefore was entitled to amend this complaint to allege PTSC’s failure to register.

6. (Landowner Liability) Landowner bore no liability for insurance inspector’s injuries occurring on her backyard steps when, despite being qualified as a “hirer” under Privette, the steps were not a concealed hazard. Robert Andrews v. Kurt A. Wagner (2d Civil No. B332276 Super. Ct. No. 56-2020-00544222-CU-PO-VTA) (Consol. w/56-2021-00549500-CU-PO-VTA Ventura County California Court of Appeal Second Appellate District Division Six Filed December 3, 2025)

Plaintiff, an employee of an independent home inspection company, was injured when he slipped and fell while performing his work duty. He and his wife sued the homeowner, now deceased, asserting causes of action regarding negligence, premises liability, and a derivative claim for loss of consortium. The trial court granted summary judgment in favor of the defendant on the basis of the Privette doctrine, which holds that an employee of independent contractor generally may not recover tort damages for work-related injuries from the contractor’s hirer. (Privette v. Superior Court (1993) 5 Cal.4th 689, 702 (Privette).)

The plaintiff appealed contending the trial court’s order of granting summary judgment was erroneous because the (1) defendant failed to meet her burden to establish that she was a “hirer” within the meaning of the Privette doctrine, and (2) there were triable issues of fact concerning application of the concealed hazard exception found in Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659. The appeals court affirmed the trial court’s ruling. The court found that the defendant qualified as a hirer because she authorized and benefited from the inspection arranged by her insurer and the relationship fell squarely within the “chain of delegation” contemplated by the Privette doctrine. But as to the Kinsman exception, the court found no evidence of a concealed hazard: the steps where the inspector fell were in plain sight; within the plaintiff’s inspection duties; and he admitted he simply was not paying attention.

7. (Arbitration) Trial court erred by not ordering individual plaintiffs’ wrongful death claim to arbitration, where death was allegedly caused by medical facility’s disconnection of decedent’s ventilator, not lack of custodial care. Ana Faiaipau v. THC-Orange County, LLC (No. A171351 Alameda County Super. Ct. No. 24CV069756 California Court of Appeal First Appellate District Division Four Filed December 19, 2025)

The plaintiffs, individually and as successors in interest to their mother, filed a complaint alleging negligence, statutory elder abuse, violation of California Unfair Competition Law (UCL) and wrongful death in addition to other causes of action against the defendant, a long-term acute care hospital, claiming that it failed to provide the patient with access to dialysis, failure to assist her toileting; and disconnected her ventilator tube causing her to suffer a severe anoxic brain injury, which ultimately lead to her death. The defendant moved to compel arbitration, which the trial court granted as to the plaintiff’s survivor claims, but denied as to the claims they filed in their individual capacities for the wrongful death, fraud, and violation of the UCL. The defendant appealed. While the appeal was pending, the California Supreme Court decided that Holland v. Silverscreen Healthcare, Inc. (2025) 18 Cal.5th 364.

The appeals court affirmed. It found because the complaint repeatedly stated that the death was caused by disconnection of the ventilator, the wrongful death action was rooted in professional negligence, not custodial neglect. It therefore should have been compelled to arbitration.

The court noted that if the patient agrees to arbitrate medical malpractice disputes in compliance with the Medical Injury Compensation Reform Act (MICRA), the agreement may bind the patient’s heirs in the wrongful death action, even if the heirs themselves were never a party to the arbitration agreement. Wrongful death claims are not derivative of a decedent’s claim, but rather independent statutory actions accruing to the decedent’s heirs. Given the overlap between the acts that may have constituted medical negligence and elder abuse, the California Supreme Court in Holland determined that only acts or omissions by a skilled nursing facility in its capacity as a healthcare provider fall under the scope of professional negligence. By contrast, the failure to fulfill custodial duties such as providing food, hydration, and personal hygiene owed by a custodian who happens also to be a healthcare provider is at most incidentally related to the provider’s professional healthcare services. The disconnection of a ventilator amounted to professional negligence and thus not custodial neglect, therefore, as noted above, the claim should have been compelled to arbitration.

8. (Expert Witness) Trial court abused its discretion by allowing a tardily disclosed expert witness to testify at trial. Iain Paaruig Fancourt McDonald v. Areg Zargaryan (No. B329565, B331191 Los Angeles Court Super. Ct. No. 18STCV10066 California Court of Appeal Second Appellate District Division Eight Filed December 22, 2025)

Seven days before trial, counsel for the plaintiff blindsided defense with a new medical theory and medical expert. No emergency or extraordinary development justified this last-minute development. The plaintiff did not disclose this expert during expert witness designations. 16 months after disclosure, the plaintiff visited the expert for the first time the same day, the expert recommended costly and invasive spinal surgery, a theory never advanced in the case. The plaintiff did not move for leave to augment his expert list. Instead, he disclosed the expert’s support to the defense on the eve of the trial. Over defense objection, the trial court allowed the doctor to testify after a rushed deposition. The jury returned a substantial verdict for the plaintiff and the defendant appealed.

The appeals court vacated and remanded the matter back to the trial court having determined that the trial court had abused its discretion. The appeals court noted that the Code of Civil Procedure’s expert disclosure statutes require timely designation of experts to prevent surprise and promote judicial efficiency. Permitting a late-designated expert to testify constitutes an abuse of discretion absent a reasonable justification for delay. The plaintiff failed to comply with mandatory statutory procedures by not seeking leave to augment his expert list. Plaintiff also offered no reasonable justification for waiting until days before trial to consult and disclose this expert as there is no medical emergency, new symptom, or unexpected development. Instead, the timing suggested a tactical decision tied to trial preparation. Finally, effective preparation to challenge a medical expert particularly one proposing major surgery requires substantial time and expert consultation, allowing for the deposition did not resolve the issues for unfairness. As the doctor’s testimony likely inflated the jury’s award for future medical expenses and pain and suffering, the error was prejudicial.

9. (Amended Complaint) Despite defendant’s failure to answer amended complaint, default judgment was not appropriate where answer to the initial complaint denied allegations repeated, and necessary for claims asserted, in the amended complaint. Razan Ammari v. Sami Ammari (No. B336026 Los Angeles County Super. Ct. No. 19SMUD02318 California Court of Appeal Second Appellate District Division Four Filed December 24, 2025)

In this case, the defendant filed an answer to plaintiff’s original complaint but did not answer the plaintiff’s first amended complaint. After, the plaintiff obtained a default judgment and the defendant moved to set it aside. The defendant appealed the order denying that motion. The appeals court reversed. It found that the defendant’s original answer denied essential factual allegations asserted in the plaintiff’s first amended complaint. Without defendant admitting these allegations, the default judgment should not have stood. Therefore, the appeals court reversed the judgment. The court noted that when a defendant answers the plaintiff’s initial complaint but does not file a new answer to a first amended complaint, the original answer may serve to controvert facts reasserted in the amended complaint. With the plaintiff not submitting new factual allegations, a default judgment could not be taken against the defendant based on allegations the original answer denied.

10. (Attorney Misconduct) Trial court did not err by granting motion for a new trial due to attorney misconduct. Brenda Lee Allen v. Anil Bhula Patel (No. E082051 Super. Ct No. CIVDS2011244 California Court of Appeal Fourth District Division Two filed December 23, 2025)

While staying at hotel with her family, the plaintiff and the hotel owner engaged in a physical altercation. The plaintiff sued the defendant and his company for personal injury. At the bifurcated trial, the jury awarded the plaintiff more than $1 million in compensatory damages. Two months later, it reconvened to try the punitive damages claim, but two jurors failed to appear. The trial court declared a mistrial as to that phase and discharged the jury. The defendant subsequently moved for a new trial based on irregularity in the proceedings preventing a fair trial. The trial court found that the plaintiff’s evidence was tainted by the plaintiff attorney’s misconduct, as he violated several motions in limine orders. The plaintiff also presented graphic evidence about her bowel and GI issues, which she claimed the incident caused. The trial court asked the plaintiff attorney if there would be evidence of causation, linking the GI claims to the altercation, and he told the trial court there would be which was false. The plaintiff’s attorney also presented inappropriate evidence and made improper arguments, including Reptile Theory, to appeal to the jury’s sympathy toward the plaintiff. Because of these and other instances of misconduct, the trial court granted the motion for new trial. The plaintiff appealed.

The appeals court held that substantial evidence supported the trial court’s findings of misconduct. The plaintiff’s attorney made knowingly false or misleading statements and elicited inadmissible, prejudicial, and highly inflammatory testimony in violation of the trial court’s orders and warnings that he should not introduce evidence of the plaintiff’s incontinence unless he could establish causation with expert testimony. The court deemed this misconduct prejudicial because it was reasonably probable that defendant would have achieved a more favorable result in the absence of inflammatory evidence. Plaintiff’s counsel also committed misconduct by violating the Reptile Theory doctrine during closing argument. The court made it clear that during hearing a motion of limine number one, Reptile Theory arguments were improper. A violation of the Reptile Theory occurs when counsel asks jurors to base their decisions on concerns about their own safety and the safety of the community rather than applicable standard or care. The plaintiff’s attorney among other improper statements told the jury that it had “an opportunity to make a difference. We go through life to try and set an example, try and do the right thing. Maybe somebody will see, maybe our children will see. Maybe our students will see. But seldom do we have an opportunity to defend our community, and to champion our community, to stand as the last bastion for what we will tolerate for our community…That decision is going to be your decision in just a few moments.”

The appeals court concluded that the plaintiff’s attorney violated the Reptile Theory by telling a jury they had the power to claim to the world that in this community a person cannot put hands on another person. The closing arguments improperly urged the jury to enter a verdict against defendant as a way of protecting the community from harm in violation of the Reptile Theory. Other areas of misconduct including attacking the character and motives of the defendant and its attorney during trial.

11. (Retained Control of Site-Bystander Injury) Where the hirer retained control over work and injured parties were innocent bystanders rather than contractor employees, trial court properly instructed that liability required substantial-factor causation, not affirmative contribution. Gloria Ruckman v. AG-Wise Enterprises, Inc. (No. F0860237 & F086187 (Consolidated) Super. Ct. No. BCV-15-101699 California Court of Appeal Fifth Appellate District Filed December 29, 2025)

Plaintiffs’ mother were injured when an underground natural gas pipe exploded during work performed by independent contractor and property controlled by the defendant. Evidence showed that the defendant’s corporate officer met repeatedly with the independent contractor’s owner to plan the work and regularly visited the site to ensure compliance with the defendant’s specifications. Plaintiff sued the defendant on a negligence theory based on retained control. At trial, over the objections of the defendant, the trial court instructed the jury on the retained control exception. The jury found that the defendant retained control, failed to exercise it with reasonable care, and was a substantial factor in causing the plaintiffs’ injuries. The defendant appealed, arguing that the instruction lacked evidentiary support and misstated the law.

The appeals court affirmed finding that the instruction was legally correct and tailored to the facts. Generally, a person who hires an independent contractor is liable to third parties for injuries caused by the contractor’s negligence in performing the work. However, numerous exceptions exist, including the retained control exception: the hirer retained control over the contracted work and exercised that control such that it affirmatively contributed to the injury. The facts in this case reasonably permitted a jury to find that the independent contractor was not free to perform the work in its own way, satisfying a retained-control standard. Next, unlike contractor employees, for innocent bystanders, liability does not require proof of an affirmative contribution; retained control plus substantial-factor causation suffices. In this case, because plaintiffs were innocent bystanders, the trial correctly omitted any requirement that the defendant’s conduct affirmatively contributed to the injury; a requirement applicable only to contract-employee plaintiffs.

12. (Service Upon Corporation) Corporations Code section 1702 service on the Secretary of State is complete ten days after delivery, even if the Secretary has not yet forwarded the service documents to defendant. Socal Lien Solutions, LLC v. BDB Properties (No. B340151 Los Angeles County Super. Ct. No. 19STCV28189 California Court of Appeal Second Appellate District Division One Filed December 31, 2025)

The Corporations Code authorizes a plaintiff to serve process on a domestic corporation by hand delivery to the corporation’s designated agent. But when the designated agent cannot with reasonable diligence be found, the court may authorize service upon the corporation by hand delivery to the Secretary of State (the Secretary). Service in this manner is deemed complete 10 days later, regardless of whether the Secretary forwards notice of service to the defendant.

Here, the trial court voided a default and default judgment against the corporate defendant after the court determined service to be incomplete until the Secretary forwarded notice to the defendant, which did not occur until a month after the court entered the default judgment. Because the court’s determination is inconsistent with the plain language of the Corporation Code, the appeals court reversed.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. (Evidence) Hearsay testimony from a previous deposition could not be used to raise a triable issue of material fact at the summary judgment stage because it was inadmissible at trial. Herman Murphy v. Marques Alexander Pina (No. B327197 Los Angeles County Super. Ct. No. 20STCV08149 California Court of Appeal Second Appellate District Division Three Filed October 16, 2025)
2. (Default Judgment) Where evidence supported proper substituted service at defendant’s usual place of business, and defendant’s contrary claims were inconsistent, default judgment was valid, and trial court correctly denied defendant’s motion to vacate. Helen Lee v. Charlene Yan (No. B340352 Los Angeles County Super. Ct. No. 19STCV46869 California Court of Appeal Second Appellate District Division Eight Filed October 31, 2025)
3. (Constitutional Law) By regulating discriminatory conduct rather than suppressing protected expression, the statute safeguarding long-term care residents from repeated misgendering survived constitutional challenge. Taking Offense v. State of California (No. S270535 Third Appellate District C088485 Sacramento County Superior Court 34-2017-80002749-CU-WM-GDS Filed November 6, 2025)
4. (Default Judgment) Where plaintiff left summons with a bus washer lacking authority or connection to the defendant’s business, substituted service was invalid and default judgment was vacated. Chinese Theater, LLC v. Starline Tours USA, Inc. (No. B333047 Los Angeles County Super. Ct. No. 20STCV30249 California Court of Appeal Second Appellate District Division Eight Filed November 6, 2025)
5. (Mediation and Attorney Fees Provision) Initial refusal to mediate did not forfeit the refusing party’s right to recover attorneys’ fees under contract requiring pre-filing mediation where refusal was retracted prior to commencement of an action. Sequoia Evleshin v. Stephen Meyer (No. H051869 Santa Crus County Super. Ct. No. 21CV01686 California Court of Appeal Sixth Appellate District Filed November 6, 2025)
6. (MICRA) Trial court properly reduced jury award by calculating defendant’s 15-percent fault after applying $250,000 MICRA cap. Adria Snover v. Aruna Gupta (No. A172568 Riverside County Super. Ct. No. RIC1905783 California Court of Appeal First Appellate District Division Four Filed November 18, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

1. (Evidence) Hearsay testimony from a previous deposition could not be used to raise a triable issue of material fact at the summary judgment stage because it was inadmissible at trial. Herman Murphy v. Marques Alexander Pina (No. B327197 Los Angeles County Super. Ct. No. 20STCV08149 California Court of Appeal Second Appellate District Division Three Filed October 16, 2025)

Defendant stole a car from an autobody shop owned by his grandmother. While driving with a passenger, the defendant crashed. The plaintiff suffered a brain injury. Roughly two and half years later, the plaintiff died of a fentanyl overdose. The decedant’s parents sued several defendants, including the defendant’s grandmother and her business. During a deposition taken in the lawsuit filed prior to the decedent’s death, the decedent testified that the defendant told him that the vehicle had been given to him by his grandmother and family members with whom the defendant was working. Defendants objected to this testimony as hearsay, and the trial court excluded the testimony. The trial court granted summary judgment for the defendants and an appeal followed.

The appeals court affirmed finding that a party may not raise a triable issue of fact on summary judgment by relying on evidence that would not be admissible at trial. Such evidence cannot be properly considered in ruling on a summary judgment motion. This includes evidence that would be barred at trial by the hearsay rule. Here, the challenged deposition testimony presented was hearsay. The defendant’s purported statements to the decedent did not fall under any hearsay exception, nor were they admissible. Because such evidence could not be introduced at trial, it could not be used to raise a triable issue of fact on summary judgment.

2. (Default Judgment) Where evidence supported proper substituted service at defendant’s usual place of business, and defendant’s contrary claims were inconsistent, default judgment was valid, and trial court correctly denied defendant’s motion to vacate. Helen Lee v. Charlene Yan (No. B340352 Los Angeles County Super. Ct. No. 19STCV46869 California Court of Appeal Second Appellate District Division Eight Filed October 31, 2025)

The plaintiff’s process server attempted service at the defendant’s usual place of business and at the business address which is on her real estate license regarding a pending lawsuit. However, the process server was told each time that the defendant was not in at this time. By the fifth attempt, the process server left the document with the office administrator while also mailing it to that address. The defendant did not respond to the complaint, and the trial court entered a default judgment in November of 2020. Two years later, plaintiff levied the defendant’s bank account. In 2024, defendant moved to vacate the default judgment under Code of Civil Procedures section 473(d), arguing the judgment was void for improper service, and declared that she had no position with the realty company where service was made. The trial court denied the motion, finding the service was proper. The defendant appealed.

The Court of Appeal affirmed, it noted that a judgment may be vacated under section 473(d) only if it is void on its face or void for lack of proper service. Proper substituted service requires leaving documents for the person “apparently in charge” at the defendant’s usual place of business, followed by mailing copies to that address. A sworn proof of service creates a rebuttable presumption of proper service under Evidence Code section 647, and the defendant has the burden of overcoming that presumption with credible, consistent, and specific evidence. In this matter, the trial court properly found that the service was valid. The process server’s declaration satisfied all statutory requirements, and the defendant’s own declarations were internally inconsistent and lacked credibility. Though the defendant initially claimed she had no position at the business, she later admitted that she had been a licensed agent there since 2016 and was listed as a chief executive officer in 2023. Her vague assertion that she was an independent agent working from home in 2020 was unsupported by the evidence and failed to explain her ongoing association with the business. Moreover, the office administrator’s repeated statements that the defendant was not in at the time implied that she was still working there. Because service complied with section 415.20(b), it was valid. Accordingly, the judgment was not void, and section 473(d) relief was unavailable.

3. (Constitutional Law) By regulating discriminatory conduct rather than suppressing protected expression, the statute safeguarding long-term care residents from repeated misgendering survived constitutional challenge. Taking Offense v. State of California (No. S270535 Third Appellate District C088485 Sacramento County Superior Court 34-2017-80002749-CU-WM-GDS Filed November 6, 2025)

California’s Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights (“Act”) safeguards LGBT seniors from discrimination in residential and medical care facilities. One provision, within the Act prohibits staff from willfully and repeatedly failing to use a resident’s preferred name or pronouns after being clearly informed, and when such conduct stems from bias. Prior to the statute taking effect, the Plaintiff, an organization opposing gender identity laws petitioned for a writ of mandate, contending that the pronoun provision violated the First Amendment’s Free Speech Clause. The trial court denied the petition, finding

the provision a valid content-neutral anti-discrimination measure. The Court of Appeal reversed, holding the statute imposed a content-based restriction that could not withstand strict scrutiny. The State of California sought review.

The California Supreme Court reversed the Court of Appeals decision and remanded with directions. It found that the statute’s narrow context regulated conduct, not pure speech as it addressed harassing discriminatory behavior rather than isolated or inadvertent statements. Accordingly, The California Supreme Court found the provision constitutionally regulated discriminatory conduct without impermissibly burdening protected speech.

4. (Default Judgment) Where plaintiff left summons with a bus washer lacking authority or connection to the defendant’s business, substituted service was invalid and default judgment was vacated. Chinese Theater, LLC v. Starline Tours USA, Inc. (No. B333047 Los Angeles County Super. Ct. No. 20STCV30249 California Court of Appeal Second Appellate District Division Eight Filed November 6, 2025)

Plaintiff obtained a default judgment against defendant. The defendant moved to quash service and to vacate the default judgment on the grounds the judgment was void due improper service of process. The defendant appealed from the trial court’s order denying its motion, contending the trial court erred in denying it relief because the plaintiff failed to effectuate substituted service in accordance with Code of Civil Procedure section 415.20.

The appeals court concluded that the entry of default and entry of default judgment were void due to improper service of process on the defendant. There was insufficient evidence that attempted substituted service was properly effectuated on a person apparently in charge of the defendant’s business office. The defendant presented evidence that the individual who received the summons and complaint neither worked for the defendant, nor had any connection to its office operation or its CEO. The plaintiff offered no contrary evidence establishing that the person had authority or responsibility that made him apparently in charge. Without proper substituted service, the subsequent mailing did not cure the defect. Accordingly, service under section 415.20(a) was valid.

5. (Mediation and Attorney Fees Provision) Initial refusal to mediate did not forfeit the refusing party’s right to recover attorneys’ fees under contract requiring pre-filing mediation where refusal was retracted prior to commencement of an action. Sequoia Evleshin v. Stephen Meyer (No. H051869 Santa Crus County Super. Ct. No. 21CV01686 California Court of Appeal Sixth Appellate District Filed November 6, 2025)

Plaintiffs and defendants entered into a Residential Purchase Agreement. The agreement provided that the prevailing party in a legal action would be entitled to recovery reasonable attorney fees. The agreement provided also that parties agree to mediate any dispute arising from the Agreement, and that the fourth sentence of that paragraph provided if a party before commencement of an action refuses to mediate after a request has been made, then that party would not be entitled to recover its attorney fees. Following a dispute between the plaintiff and defendant, the plaintiffs requested that the defendant mediate their claim. The defendants refused, but six weeks later, before an action had been filed, they told the plaintiffs they were willing to mediate. The plaintiffs filed suit two days later. The defendants prevailed at trial and sought their fees. The trial court denied their request, concluding that they had refused to mediate after requests had been made and thereby forfeited their right under the Agreement for reasonable attorney’s fees.

The appeals court reversed and remanded the matter. The court found that under the Agreement that a party may recover fees, even if it refuses a pre-filing request to mediate, so long as it subsequently expresses a willingness to mediate prior to any action being filed. This interpretation avoids automatic forfeiture regardless of a party’s retraction, which is to be avoided where reasonably possible in contract interpretation.

6. (MICRA) Trial court properly reduced jury award by calculating defendant’s 15-percent fault after applying $250,000 MICRA cap. Adria Snover v. Aruna Gupta (No. A172568 Riverside County Super. Ct. No. RIC1905783 California Court of Appeal First Appellate District Division Four Filed November 18, 2025)

Plaintiff suffered complications secondary to giving birth at Defendant’s Hospital. Before trial, plaintiff settled with one of the defendant doctors as well as the hospital. At trial, the jury awarded the plaintiff almost $7.5 million in economic damages and $10 million in noneconomic challenges. The trial court reduced the award to account for the pretrial settlements and the jury’s finding that the defendant that went to trial bore 15 percent responsibility for the plaintiff’s injuries. The trial court calculated damages by applying Gilman v. Beverly California Corp. (1991) 231 Cal. App.3d 121. It calculated noneconomic liability by first reducing the damage award to $250,000 pursuant to the former Civil Code section 3333.2 (the Medical Injury Compensation Reform Act, or MICRA). The plaintiff appealed arguing the court should have reversed the order of operations, first multiplying the $10 million by 15 percent, and then capped at $250,000 under the prior MICRA law at the time.

The appeals court affirmed finding that if all defendants had gone to trial, the noneconomic damages would have been capped at $250,000 and would have been divided amongst them based on the jury’s allocation of fault. Therefore, the defendant doctor who went to trial was only liable for 15 percent of the $250,000 cap.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. (LPS Act) Employee’s willful disclosure of confidential Welfare and Institutions Code section 5150 record to plaintiff’s relative despite knowing she lacked entitlement required awarding of treble damages under section 5330. John Doe v. County of Orange (No. G064562 Super. Ct. No. 30-2022-01286908 California Court of Appeal Fourth Appellate District Division Three Filed September 2, 2025)
2. (AI Fabrication) Counsel’s use of AI-fabricated (i.e., “hallucinated”) legal authority violated California Rules of Court, rendered plaintiff’s appeal frivolous, and warranted monetary sanctions. Sylvia Noland v. Land of the Free, L.P. (No. B331918 Los Angeles County Super. Ct. No. BC716737 California Court of Appeal Second Appellate District Division Three Filed September 12, 2025)
3. (Good Faith Determination Settlement) Code of Civil Procedure section 877.6 does not limit challenges to good faith settlement determinations to only writ petitions; postjudgment appeals are also an available avenue. Fennessy v. Ronald Altoonian (No. C098976 Super. Ct. No. PC20160016 California Court of Appeal Third Appellate District Filed September 19, 2025)
4. (Judgment Debtors) Despite prior decision that individual defendant was not the alter ego of corporate defendant, collateral estoppel did not bar plaintiff from adding individual as judgment debtor based on post-decision actions. Angel Lynn Realty, Inc. v. Steve George (No. C101389 Super. Ct. No. 34-2015-00186631-CU-PN-GDS California Court of Appeals Third Appellate District (Sacramento) Filed September 23, 2025)
5. (Confidential Medical Records) Health and Safety Code section 1280.15’s mandate that health facilities “shall prevent” unauthorized access to confidential medical information requires reasonable safeguards and is not a strict liability statute. The Regent of the University of California v. State Department of Public Health (No. C100351 Super. Ct. No. 34-2022-80004049-CU-WM-GDS California Court of Appeals Third Appellate District (Sacramento) Filed September 23, 2025)
6. (Co-Defendant Opposition to MSJ) When a defendant moves for summary judgment, a codefendant with an adverse interest has standing to oppose the motion regardless of whether it has filed a cross-complaint. Bonnie Bean f. City of Thousand Oaks (2d Civ. No. B338497 Super. Ct. No. 56-2021-00561100-CU-PO-VTA Ventura County California Court of Appeal Second Appellate District Division Six Filed September 29, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

1. (LPS Act) Employee’s willful disclosure of confidential Welfare and Institutions Code section 5150 record to plaintiff’s relative despite knowing she lacked entitlement required awarding of treble damages under section 5330. John Doe v. County of Orange (No. G064562 Super. Ct. No. 30-2022-01286908 California Court of Appeal Fourth Appellate District Division Three Filed September 2, 2025)

Welfare and Institution Code section 5328 makes all information and records obtained in the course of providing services to either voluntary or involuntary recipients involved in mental heath treatment confidential. Section 5330 authorizes a person who received such services to bring an action to anyone who unlawfully disclosed such records. If the records are negligently disclosed the statute awards the aggrieved party $1,000 in actual damages. However, if records were willfully and knowingly disclosed, the statute awards the aggrieved party the greater of $10,000 or three times the amount of actual damages.

In this matter, the individual who worked for the Sheriff’s Department unlawfully disclosed the plaintiff’s confidential record to the plaintiff’s sister and her attorney who used it to threaten the plaintiff to dismiss a lawsuit that the plaintiff brought against his sister. The plaintiff brought an action against the individual who disclosed her records and the County, in which a jury found that the individual willfully and knowingly disclosed the record. However, the jury apportioned 25 percent of the plaintiff’s damages to the plaintiff’s sister and her attorney based on their conduct. The trial court then granted the defendant’s motion for partial judgment notwithstanding the verdict ruling that there was no substantial evidence to support the finding of willfulness. As a result, the court did not order treble damages. The trial court apportioned both economic and noneconomic damages and entered a judgment in favor of plaintiff.

Plaintiff appealed arguing the trial court error in concluding there was not substantial evidence to support the jury’s finding and in apportioning damages. On appeal, all parties agreed that the individual defendant unlawfully disclosed the confidential record. But the parties disagreed over what it means to “willfully and knowingly” disclose the confidential record within the meaning of section 5330. The Court of Appeals found that the trial court erred in granting the defendant’s motion for partial judgment notwithstanding the verdict. It found that the individual defendant intentionally released the confidential record to a person that the defendant knew was not entitled to the record and the disclosure was otherwise unlawful. The court found that there was substantial evidence that the individual defendant willfully and knowingly released the confidential records.

2. (AI Fabrication) Counsel’s use of AI-fabricated (i.e., “hallucinated”) legal authority violated California Rules of Court, rendered plaintiff’s appeal frivolous, and warranted monetary sanctions. Sylvia Noland v. Land of the Free, L.P. (No. B331918 Los Angeles County Super. Ct. No. BC716737 California Court of Appeal Second Appellate District Division Three Filed September 12, 2025)

This matter involved an unremarkable appeal that raised neither novel questions of law nor required the appellate division to apply settled law in a unique factual context. What set this appeal apart and the reason the appellate division elected to publish the opinion is that nearly all the legal quotations in plaintiff’s opening brief, and many of the quotations in plaintiff’s reply brief, were fabricated. That is, the quotes plaintiff attributed to published cases do not appear in those cases or anywhere else. Further, many of the cases plaintiff cited do not discuss the topics for which they are cited and a few of the cases do not exist at all. These fabricated legal authorities were created by generative artificial intelligence (AI) tools that plaintiff’s counsel used to draft his appellate briefs. The AI tools created fake legal authority sometimes referred to as AI “hallucinations” that were undetected by plaintiff’s counsel because he did not read the cases the AI tools cited.

Although the generations of fake legal authority by AI sources have been widely commented on by federal and out-of-state courts and reported by many media sources, no California court has addressed this issue. The appeals court therefore published the opinion as a warning. Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations whether provided by generative AI or any other source that the attorney responsible for submitting the pleading has not personally read and verified. Because plaintiff’s counsel’s conduct in this case violated a basic duty counsel owed to his client and the court, the appeals court imposed the monetary sanction on counsel, directed him to serve a copy of this opinion on his client, and directed the clerk of the court to serve a copy of this opinion on the State Bar.

3. (Good Faith Determination Settlement) Code of Civil Procedure section 877.6 does not limit challenges to good faith settlement determinations to only writ petitions; postjudgment appeals are also an available avenue. Fennessy v. Ronald Altoonian (No. C098976 Super. Ct. No. PC20160016 California Court of Appeal Third Appellate District Filed September 19, 2025)

Plaintiffs purchased a residential property held by the trust of the defendant, who was represented in the sale by an agent of a defendant real estate firm. After the sale closed, the plaintiff discovered undisclosed and allegedly concealed details of a death that had occurred on the property, leading them to sue the defendants. The defendants filed a cross-complaint against a co-defendant for indemnity and breach of duty, and negligence. The plaintiffs ultimately settled their claims against one of the defendants, and the defendant successfully moved for determination that the settlement was entered in good faith pursuant to Code of Civil Procedure section 877 and 877.6. In granting the good faith settlement determination, the trial court also found that all of the crossclaims were barred under section 877.6, as actual or artfully plead claims for indemnity or contribution. The plaintiffs proceeded to trial on their claims against the remaining defendant, and a jury found the remaining defendant not liable. The plaintiffs appealed from the judgment and the defendant cross-appealed. Through this court’s mediation process, the plaintiffs and the defendants settled the appeal, but the cross-appeal was not resolved.

In a present cross-appeal, the defendant contended the trial court erred in finding that the good faith settlement determination barred three of the crossclaims against the settling defendant calling those a asserting a breach of contract, breach of fiduciary duty, and negligence. The settling defendant argued in response that the non-settling defendant cross-appeal should be dismissed because a good faith settlement determination could be reviewed only through a petition for writ of mandate pursuant to section 877.6, subdivision (e), and that, if the appeals court reaches the merit, the disputed crossclaims were properly dismissed. The appeals court concluded that a postjudgment appeal is a permissible way to challenge a good faith settlement determination. Therefore, the appeal court jurisdiction to reach the merits of the non-settling defendant’s cross-appeal. On the merits, it concluded that trial court correctly determined that the crossclaims for breach of contract, breach of fiduciary duty, and negligence were effectively claims for indemnity and thus correctly ruled the claims were barred. Hence, the appeals court affirmed the judgment.

4. (Judgment Debtors) Despite prior decision that individual defendant was not the alter ego of corporate defendant, collateral estoppel did not bar plaintiff from adding individual as judgment debtor based on post-decision actions. Angel Lynn Realty, Inc. v. Steve George (No. C101389 Super. Ct. No. 34-2015-00186631-CU-PN-GDS California Court of Appeals Third Appellate District (Sacramento) Filed September 23, 2025)

California Code of Civil Procedure section 187 grants the courts all the means necessary to carry out their jurisdiction into effect. Among other things, it authorized a trial court to amend a judgment to add additional judgment debtors on the ground that a person or entity is the alter ego of the original judgment debtor. Plaintiff filed such a motion to add a defendant as an additional judgment debtor to a $1 million judgment entered against defendants. The trial court denied the motion, finding it was barred by collateral estoppel because it had already decided that the additional defendant was not an alter ego of the underlying defendant. Plaintiff argued this was error because its motion was based entirely on events that occurred after the trial court’s decision and collateral estoppel did not apply if new facts or changed circumstances had occurred since the prior decision. The appeals court agreed and thus reversed and remanded the trial court to determine in the first instance whether new facts or changed circumstances occurred since the prior decision that changed the alter ego analysis.

5. (Confidential Medical Records) Health and Safety Code section 1280.15’s mandate that health facilities “shall prevent” unauthorized access to confidential medical information requires reasonable safeguards and is not a strict liability statute. The Regent of the University of California v. State Department of Public Health (No. C100351 Super. Ct. No. 34-2022-80004049-CU-WM-GDS California Court of Appeals Third Appellate District (Sacramento) Filed September 23, 2025)

California Department of Public Health (CDPH) imposed a monetary penalty on the plaintiff Regents of the University of California doing business as a hospital associated with UCLA after an employee of that hospital photographed confidential patient information and posted the photograph to his Instagram account. The CDPH imposed this penalty after finding that the hospital violated Health and Safety Code section 1280.15, which provides in part that a health facility shall prevent unlawful or unauthorized access to, and use or disclosure of, patients’ medical information, as defined within Section 56.06 of the Civil Code and consistent with section 1280.18. The question before the appeals court was whether the language “shall prevent” language denote a strict liability statute, such that any failure to prevent disclosure constitutes a violation of the statute. Or, as the trial court ruled, there is the “consistent with Section 1280.18” language required that a violation must be supported by concomitant violation of section 1280.18 mandated health facilities establish appropriate safeguards to protect medical information and reasonably safeguard confidential medical information, effectively, importing a reasonableness standard of 1280.18 into section 1280.15.

An administrative law judge upheld the CDPH’s findings and penalty. The trial court subsequently granted the hospital’s petition for a writ of mandate to set aside that determination. CHPH argued that the plain language of the section supports its interpretation of the statute as one of strict liability, the legislative history confirmed its position, and that the CDPH’s interpretation is reasonable, longstanding, and consistent, and should be afforded deference.

The appeals court affirmed the trial court’s ruling. It denied the hospital’s motion for judicial notice of certain documents related to the legislative history of section 1280.15 as unnecessary to its determination.

6. (Co-Defendant Opposition to MSJ) When a defendant moves for summary judgment, a codefendant with an adverse interest has standing to oppose the motion regardless of whether it has filed a cross-complaint. Bonnie Bean f. City of Thousand Oaks (2d Civ. No. B338497 Super. Ct. No. 56-2021-00561100-CU-PO-VTA Ventura County California Court of Appeal Second Appellate District Division Six Filed September 29, 2025)

After tripping on a sidewalk, plaintiff sued the owner of a nearby residence, along with the city for general negligence and premises liability. The city appealed from an order granting summary judgment against the plaintiff in favor of the co-defendant resident. The appeals court concluded that the trial court erred in not considering the city’s opposition to the motion for summary judgment for two reasons. First, the city was not required to file a cross-complaint to have standing to oppose the motion for summary judgment. And second, the city did file a cross-complaint. The appeals court nevertheless affirmed the judgment because there was no triable issue of material fact regarding resident’s liability. The appeals court noted that when a defendant brings a motion for summary judgment, a co-defendant does not have to file a cross-complaint to obtain standing to oppose the motion. A co-defendant with an adverse interest has standing to oppose a motion for summary judgment whether it has filed a cross-complaint or not.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. 1. (Motion for Summary Judgment) Timely motion for summary judgment must be heard regardless of local court rules or calendaring issues. CFP BDA, LLC v. Superior Court of Riverside County (Peter Bedford) (No. E085583 California Court of Appeal Fourth Appellate District Division Two Filed July 10, 2025)
   2. (Causation) Alternative-causation-theory burden-shifting was not applicable where plaintiff failed to establish causation element as to property owner’s purported negligence. Anthony Mitchell v. Gail B. Hutchinson (No. G063331 Super. Ct. No. 30-2020-01173441 California Court of Appeal Fourth Appellate District Division Three Filed July 10, 2025)
   3. (Restraining Orders) Res judicata and collateral estoppel were inapplicable when restraining order judgment had no preclusive effect on government employee’s dismissal which was based on his abusive and dishonest conduct. Jonathan Egelston v. State Personnel Board (2d Civil. No. B337182 California Court of Appeal Second Appellate District Division Six Filed July 15, 2025)
   4. (MICRA) General negligence’s two-year statute of limitations, not the Medical Injury Compensation Act’s statute of limitations, applied to driver’s claim from being rear-ended by an ambulance. Francisco Gutierrez v. Uriel Tostado (No S283128 Sixth Appellate District H049983 Santa Clara County Superior Court 20CV361400 Filed July 31, 2025)
   5. (Elder Abuse Act) No Elder Abuse Act violation against nursing facility physician when physician’s interaction with patient was limited, not amounting to a “robust” caregiver relationship as required by the statute. James Frankland v. Siamak Etehad (No. B338370 Los Angeles County Super. Ct. No. 23STCV09176 California Court of Appeal Second Appellate District Division Five Filed August 8, 2025)
   6. (Settlement Agreements) Where there were “outward manifestation” presenting triable issues of material fact surrounding whether the parties’ consented to contract, granting summary adjudication was error. Gary Birdsall v. Barton Helfet (No. A170596 San Francisco County Super. Ct. No. CGC-21-594428 California Court of Appeal First Appellate District Division Two Filed August 11, 2025)
   7. (Arbitration) Ruiz v. Podolsky did not require plaintiffs to arbitrate their wrongful death claim regarding defendant nursing facility’s alleged neglect of their son’s basic welfare and safety needs. Jonie A. Holland v. Silverscreen Healthcare, Inc. (No. S285429 Second Appellate District, Division Two B323237 Los Angeles County Superior Court 22STCV01945 Filed August 14, 2025)
   8. (Terminating Sanctions) Despite defendant’s pro per status, trial court did not abuse its discretion in granting terminating sanctions when evidence supported defendant’s noncompliance with discovery obligations warranted its imposition. Joyce Faye Atlas v. Mike H. Davidyan (No. B335661 Los Angeles County Super. Ct. No. 21STCV14481 California Court of Appeal Second Appellate District Division Eight Filed August 29, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

1. (Motion for Summary Judgment) Timely motion for summary judgment must be heard regardless of local court rules or calendaring issues. CFP BDA, LLC v. Superior Court of Riverside County (Peter Bedford) (No. E085583 California Court of Appeal Fourth Appellate District Division Two Filed July 10, 2025)

Defendant was involved in a lawsuit concerning its desire to seek to impose an easement across a local airport. Trial was set for May 2, 2025. In November 2024, the defendant reserved an April 1, 2025, hearing date for their motion for summary judgment via the Riverside County Superior Court Reservation System. The defendant filed and served its motion on January 10, 2025, 81 days before the hearing date and more than 30 days before trial. Under Riverside County Superior Court Local Rule 3310, however, motions were required to be filed no more than 10 days after reserving the hearing date. On January 13, the defendant was notified that the hearing date had been cancelled and the motion rejected because of Rule 3310. The defendant subsequently moved to specially set the motion for hearing, which was denied.

The defendant petitioned the appellate division for relief.

The petition was granted. The appeals court found that the defendant reserved the hearing 6 months ahead of time and filed a timely motion for summary judgment 81 days before the hearing date, but because defendant failed to comply with Local Rule 3310, the court removed the selected hearing date from the calendar. Accordingly, the rule operated to prevent a timely motion for summary judgment from being heard, and so, regardless of local rules, the motion should have been set for another hearing date. Trial courts may not refuse to consider a timely motion for summary judgment. Even local rules and practices may not prevent the filing and hearing of such a motion. A calendaring issue may not serve as a basis for refusing to hear a timely motion filed with the court.

2. (Causation) Alternative-causation-theory burden-shifting was not applicable where plaintiff failed to establish causation element as to property owner’s purported negligence. Anthony Mitchell v. Gail B. Hutchinson (No. G063331 Super. Ct. No. 30-2020-01173441 California Court of Appeal Fourth Appellate District Division Three Filed July 10, 2025)

This case involved application of the alternative liability theory of causation-first approved by the California Supreme Court in the landmark case of Summers v. Tice (1948), in the context of a summary judgment motion. While driving his motor vehicle on a street, plaintiff ran over and dragged with the underside of his vehicle one or more large rocks that had rolled onto the roadway from the adjacent slope, causing extensive damage to the under carriage of the vehicle and unspecified personal injuries. Unable to determine the precise location from where the rocks fell, plaintiffs elected to sue multiple parties, each of whom owned a portion of the slope, for negligence and premises liability.

One of the defendants moved for summary judgment on the issue of causation. The trial court granted the motion and entered judgment in favor of the defendant. Plaintiffs appealed.

The appeals court affirmed. It found that the defendant met its initial burden pursuant to code of Civil Procedures section 437c, subdivision (p)(2) by showing plaintiff could not prove the element of causation to both of their causes of action for premises liability and negligence. The burden then shifted to the plaintiffs to show the existence of a triable issue of material fact as to whether the rocks came from the defendant’s property or, alternatively, whether the defendant and the other owners of the adjacent hillside acted negligently in maintaining the slopes such that the burden of proof on the issue of causation would shift to defendants at trial under Summers. Because plaintiffs did neither, the defendant was entitled to summary judgment.

Under the alternative causation theory, though plaintiffs typically bear the burden of establishing causation, in cases where the evidence shows multiple defendants acting tortiously toward the plaintiffs, the burden of proof of causation may shift to the tortfeasors. When it is clear that one of them caused the injury, it becomes each defendant’s responsibility to prove they were not the cause. Here, this theory was inapplicable; it was only relevant if the moving defendant was proven to be a wrongdoer. Since this defendant met that burden, the expert testimony attesting that it was impossible to tell which property the rocks fell from, thus showing that the plaintiff could not prove causation element in her case. The burden then shifted back to the plaintiff to show there was a triable issue of fact as to whether the rocks came from the moving defendant’s property or whether she was a joint tortfeasor. The plaintiff’s expert only concluded that the rocks likely came from one of the three defendants, and the rest of the evidence was conclusory or speculative.

3. (Restraining Orders) Res judicata and collateral estoppel were inapplicable when restraining order judgment had no preclusive effect on government employee’s dismissal which was based on his abusive and dishonest conduct. Jonathan Egelston v. State Personnel Board (2d Civil. No. B337182 California Court of Appeal Second Appellate District Division Six Filed July 15, 2025)

Plaintiff worked for The Department of Corrections and Rehabilitation (CDCR) as a youth correctional officer. The plaintiff’s girlfriend called the police, stating that he had assaulted her and she was eventually granted a temporary restraining order (TRO) against him. Felony charges were later filed against the plaintiff. Plaintiff sought a TRO against his girlfriend, arguing he was defending himself from his girlfriend’s attacks. Both restraining orders requests were ultimately dismissed, but the CDCR investigated and determined that the plaintiff’s abusive actions against his girlfriend, along with his dishonest statements during the investigation, violated rules and policies. Accordingly, CDCR served him with a notice of adverse action, dismissing him from his position. An administrative law judge upheld the dismissal. The trial court denied the plaintiff’s writ petition and appealed. The plaintiff argued that because the family court had dismissed his girlfriend’s restraining order request, res judicata and collateral estoppel barred the assault claims.

The appeals court affirmed finding that neither res judicata or collateral estoppel applied. Res judicata and collateral estoppel required the claims or issues’ essential elements to be the same. Here, both proceedings involved different parties, who had diverging interests: one sought redress with personal harm, whereas the other sought redress for public harm resulting from the plaintiff violating his employment duties. Also, the restraining order request was dismissed without prejudice, which meant that it was not a final decision on the merits and therefore had no preclusive effect.

4. (MICRA) General negligence’s two-year statute of limitations, not the Medical Injury Compensation Act’s statute of limitations, applied to driver’s claim from being rear-ended by an ambulance. Francisco Gutierrez v. Uriel Tostado (No S283128 Sixth Appellate District H049983 Santa Clara County Superior Court 20CV361400 Filed July 31, 2025)

The California Supreme Court granted review of this matter to decide whether the statute of limitations for medical negligence claims within the Medical Injury Compensation Reform Act (MICRA)’s applied to action for negligence brought by the injured driver of a vehicle rear-ended by an ambulance transporting a patient. The California Supreme Court reversed the appellate court holding that MICRA statute of limitations did not apply under the circumstances.

The California Supreme Court’s ruling follows from principles articulated in its previous decisions concerning the scope of MICRA’s statute of limitations, as well as the general rule that the applicable limitations depends on the nature of the right being sued upon. Where, as here, plaintiff sued a health care provider for breach of duty owed to the public generally, as opposed to a violation of professional obligations owed to patients, the two-year statute of limitations for general negligence claims applied. Because the Court of Appeal concluded that the MICRA statute of limitations applied in this matter, the California Supreme Court reversed its judgment and remanded the proceedings consistent with its opinion. The underlying facts involved a truck that was rear-ended by an ambulance supporting a patient. The plaintiff sued the driver and the ambulance company for general negligence, alleging that he suffered personal injury and property damage due to the collision. The Defendants moved for summary judgment based upon MICRA’s one-year statute of limitations which was granted by the trial court and affirmed by the Court of Appeal.

5. (Elder Abuse Act) No Elder Abuse Act violation against nursing facility physician when physician’s interaction with patient was limited, not amounting to a “robust” caregiver relationship as required by the statute. James Frankland v. Siamak Etehad (No. B338370 Los Angeles County Super. Ct. No. 23STCV09176 California Court of Appeal Second Appellate District Division Five Filed August 8, 2025)

The Elder Abuse and Dependent Adult Civil Protection Act (the Act) authorizes elders (persons 65 years of age) who suffered neglect or financial abuse at the hands of people acting with recklessness, oppression, fraud, or malice to obtain heightened remedies in a civil suit for damages. The Act explicitly excludes from its reach an elder’s claim for injury or damages against a health care provider based on that provider’s alleged professional negligence. The question before the appellate court was whether an elder can state a claim under the Act for neglect or financial abuse against a physician based solely on that physician’s negligent medical services while the elder resided at a skilled nursing facility. The appeals court held the answer was “no”. The Act limits neglect to the negligent failure of any person having care or custody of any elder, and a physician’s conduct in providing negligent medical services to an elder residing at a skilled nursing facility does not without more constitute neglect because that physician lacks the requisite robust caretaking or custodial relationship with the elder as defined in the Winn v. Pioneer Medical Group, Inc. (2016) and is accordingly being sued for no more than his professional negligence. The appellate court affirmed the trial court’s judgment for the physician after sustaining a demurrer to the neglect and financial abuse claims under the Act.

6. (Settlement Agreements) Where there were “outward manifestation” presenting triable issues of material fact surrounding whether the parties’ consented to contract, granting summary adjudication was error. Gary Birdsall v. Barton Helfet (No. A170596 San Francisco County Super. Ct. No. CGC-21-594428 California Court of Appeal First Appellate District Division Two Filed August 11, 2025)

Plaintiff was stopped on a bridge when his vehicle was rear-ended by the defendant. The plaintiff and his wife retained an attorney who initiated contact with the defendant’s insurer and who, prior to filing suit, sent the insurer a policy limits demand of $100,000. The demand stated that the deadline to accept was 31 days later, by which the insurer had to send the attorney three items: (1) a standard bodily injury release to be executed by the plaintiff (2) a settlement draft and check payable to the plaintiffs and their attorney, and (3) and evidence confirming the policy limits.

Six days before the deadline, the insurance company faxed to the attorney a letter that claimed at the top in large boldface it was a “CLAIM SETTLEMENT,” and the first line which read, “We accept our offer and agree to pay $100,000”. The letter also included a standard release and certified proof of the policy limits. The next day, the insurer sent by overnight mail the $100,000 check, payable as requested. Then, four days before the deadline, the insurer faxed another letter to the attorney stating that all three conditions had been met and asking the attorney to contact him if anything else was required. The attorney did not respond.

Meanwhile, the insurer learned that the release enclosed in the acceptance letter had the plaintiff releasing the defendant and the plaintiff spouse listing her as a releasee rather than a releasor and send the attorney a corrected version of the release that was received by the attorney 65 minutes after the 3:00 p.m. deadline on the 31st day. The next day, the attorney sent a letter to the insurance company complaining that original release was not satisfactory and that the corrected the release too late.

The attorney thereafter filed a lawsuit for the plaintiff. Defendant’s answer included several affirmative defenses, one of which was a settlement in another of which was comparative fault based upon the plaintiff’s failure to wear a seat belt. The plaintiffs moved for summary judication of the settlement defense, which the law and motion judge granted, and a judge to whom the case was assigned for trial did not allow evidence on the failure to wear a seat belt and refused the defendant’s instructions on the issue. Against that background the case proceeded to a jury verdict that awarded the plaintiff multimillion dollars. The defendants appealed, asserting two arguments, that the trial court erred in granting summary judication of the settlement defense and precluding evidence of, and instruction regarding the plaintiff’s failure to wear a seat belt.

The appeals court agreed with both arguments and reversed. On summary judgment/adjudication motion, the appellate court noted that it is the trial court’s duty to determine whether there is a triable issue as to any material fact. It found that the parties’ actions showed that there were triable issues as to whether the offer was accepted and whether there was mutual consent or intent to contract. Given that the insurance company sent a fax to correct the release, a reasonable person could conclude that the insurance company intended to contract. These issues should therefore have been presented to the trier of fact rather than summarily dismissed. Finally, the appellate court highlighted that public policy favors and encourages settlement agreements. Accordingly, the trial court was found to have erred in granting summary adjudication in favor of the plaintiff regarding the settlement agreement.

7. (Arbitration) Ruiz v. Podolsky did not require plaintiffs to arbitrate their wrongful death claim regarding defendant nursing facility’s alleged neglect of their son’s basic welfare and safety needs. Jonie A. Holland v. Silverscreen Healthcare, Inc. (No. S285429 Second Appellate District, Division Two B323237 Los Angeles County Superior Court 22STCV01945 Filed August 14, 2025)

This matter came before the California Supreme Court concerning application of its prior 2010 ruling in Ruiz v. Podolsky, wherein the California Supreme Court identified an exception to a general rule that plaintiff cannot be compelled to arbitrate their disputes if they have not previously agreed to arbitration. In Ruiz, the California Supreme Court held that if the patient agreed to arbitrate medical malpractice disputes in compliance with the arbitration provision of the Medical Injury Compensation Reform Act (MICRA) (codified as Code of Civil Procedure section 1295), the patient-provider agreement may bind the patient’s heirs in a wrongful death action, even if the heirs themselves never agree to arbitration. In the present matter the plaintiff sued a skilled nursing facility alleging that the facility’s neglect caused their son’s death. Before his death, plaintiffs’ son had signed an agreement to arbitrate medical malpractice disputes against the facility. Parting company with appellate courts that had taken different approaches to the issue, the Court of Appeal held that the patient-provider agreement bound plaintiffs because their wrongful death claim based on the nursing facility’s neglect was necessarily a claim about the way the health care provider rendered its professional services.

The California Supreme Court concluded that the Court of Appeals decision in this case extended Ruiz past statutory bounds. Ruiz does not apply to every type of wrongful death claim that might be brought against the health care provider – particularly a provider that, like the skilled nursing facility in this case, provided both medical care and day-to-day custodial care of dependent adults. Under Ruiz, plaintiffs’ claim must be submitted to arbitration only if they are raising a dispute about medical malpractice as that term is defined in MICRA’s arbitration provision – that is, a dispute as whether any medical services were improperly, negligently or incompetently rendered. The Ruiz decision did not require plaintiffs to arbitrate their disputes about a facility’s neglect of a resident’s basic welfare and safety needs.

To the extent the plaintiffs’ complaint in this case failed to detail whether they are alleging deficiencies in the nursing facility’s rendered of medical services or instead in its provision of custodial care, the California Supreme Court concluded the plaintiff should be permitted to amend their complaint to specify. Therefore, the California Supreme Court reversed the judgment of the Court of Appeal and remanded the matter for further proceedings.

8. (Terminating Sanctions) Despite defendant’s pro per status, trial court did not abuse its discretion in granting terminating sanctions when evidence supported defendant’s noncompliance with discovery obligations warranted its imposition. Joyce Faye Atlas v. Mike H. Davidyan (No. B335661 Los Angeles County Super. Ct. No. 21STCV14481 California Court of Appeal Second Appellate District Division Eight Filed August 29, 2025)

Plaintiff obtained a default judgment against the defendant. The default judgment was entered as a termination sanction based upon the defendant’s noncompliance with obligations under the discovery statutes. The defendant represented himself in pro per. During the discovery phase of the case, plaintiff filed a total of nine motions to compel discovery responses and for discovery sanctions. The trial court issued a series of orders, initially declined to impose sanctions and gave defendant multiple extensions of time to respond; then issued several orders imposing monetary sanctions and setting compliance deadlines; then, finding that defendant’s continued noncompliance was willful, imposed issue sanctions, and finally terminating sanctions striking the defendant’s answer.

The defendant argued that imposing a “doomsday” sanction was an abuse of discretion because his written discovery responses, while imperfect, were in substantial compliance, and that he had made “substantially justified” objections to deposition questions and interrogatories.

On appeal, the court found no merit in the defendant’s claims and affirmed the judgment of the trial court in all respects. Under the Code of Civil Procedure, trial courts may award or impose sanctions for the misuse of the discovery process. In imposing sanctions, trial courts must begin with the least damaging (monetary) and then progress to ultimate sanction: termination. When determining whether sanctions were appropriately imposed, the appellate court reviews for abuse of discretion. The trial court gave this defendant leeway and the trial court further appropriately imposed and increased sanctions with each step of the defendant’s disregard of the discovery requests and orders. Terminating sanctions were imposed only after defendant’s continued noncompliance. The defendant provided inadequate and tardy responses, failed to appear for scheduled depositions twice, and refused to answer without justification, giving evasive and inconsistent answers. Therefore, the appellate court concluded that, rather than abuse of discretion, the trial court’s actions were the model of discretion.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. 1. (Liability Waiver) Waiver releasing Oakland from liability during charity bike-ride was against public policy to the extent it released the City for negligently violating its statutory duty to maintain public safety. Ty Whitehead v. City of Oakland (No. S284303 First Appellate District Division Three A164483 Alameda County Superior Court RG18896233 Filed May 1, 2025)
   2. (Workers’ Compensation) Special risk exception did not apply to employee injured during commute because there was no relationship between the risk and the location of the premises/conditions within the employer’s control. Zenith Insurance Company v. Workers’ Compensation Appeals Board and Javier Hernandez (No. No C10549 WCAB Case No. ADJ16567838 California Court of Appeal Third Appellate District Filed May 1, 2025)
   3. (Arbitration) Plaintiff/cross-defendant’s conduct constituted waiver of the right to pursue arbitration, where he sought injunctive relief and a jury trial; opposed a demurrer; and propounded over 700 discovery requests. Stephen R. Hofer v. Vicky Boladian (No. B339542 Los Angeles County Super. Ct. No. 23SMCV04868 California Court of Appeal Second Appellate District Division Five Filed May 9, 2025)
   4. (MSJ-Dangerous Condition) Trial court properly granted summary judgment for city, where plaintiff presented no evidence of the city’s actual or constructive notice of the crack in the street that caused her skateboard accident. Jennifer Restivo v. City of Petaluma (No. A169918 Sonoma County Super. Ct. No. SCV-270474 California Court of Appeal first Appellate District Division One Filed May 20, 2025)
   5. (EMS Fees) Contract-based claim for declaratory relief related to obligations arising after treatment was not foreclosed by prior holding regarding hospitals’ duty to disclose fees prior to providing emergency treatment. Joshua Naranjo v. Doctors Medical Center of Modesto, Inc. (No. F083197 Super. Ct. No. CV-21-001363 California Court of Appeal Fifth Appellate District Filed May 23, 2025)
   6. (Wiring Settlement Funds) Trial court correctly concluded that defendants, who wired settlement funds to impostor pretending to be plaintiffs, were in the best position to prevent the fraud. Brian Thomas v. Corbyn Restaurant Development Corp (No. D083655 Super. Ct. No. 37-2021-00047188-CU-PO-NC California Courts of Appeal Fourth Appellate District Division One Filed May 27, 2025)
   7. (Conditions of Admission Assignment of Benefits) Hospital’s conditions of admission and assignment of benefits were unenforceable and therefore could not be invoked to compel payment from insurance company. Dameron Hospital Association v. Progressive Casualty Insurance Company (No. C099467 Super Ct. No. STK-CV-UBT-20150002249 California Court of Appeal Third Appellate District (San Joaquin) Filed May 27, 2025)
   8. (Discovery Sanctions) Imposition of sanctions under Code of Civil Procedure sections 2023.10 and 2023.030 for gamesmanship tactic was valid as an unusual form of discovery abuse. Shawn Agnone v. Frank CharlesAgnone II (No. B321252 Los Angeles County Super. Ct. No. BD659645 California Court of Appeal Second Appellate District Division Three Filed May 30, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

Plaintiff alleged to have suffered a serious head injury during a bicycle training ride for a charity fundraiser because the defendant City breached its statutory duty under Government Code Section 835 to maintain a safe roadway for public use. The trial court granted summary judgment to the City. Plaintiff appealed and the Court of Appeal affirmed on the basis of a release and waiver of liability that the plaintiff signed on the morning of the training ride. The release and waiver included a provision discharging the ride organizers, as well as any public entities providing facilities for the ride, from any liability for negligence.

The matter was appealed to the California Supreme Court which reversed finding that such a release was against the policy underlying California Civil Code section 1668, to the extent it purports to relieve the City of liability for negligently violating a statutory duty relating to public safety. California Civil Code section 1668 renders unlawful any contract that seeks, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willing injury to the person or property of another, or violating of law, whether willful or negligent. The Court found that a release of this type could possibly exculpate a public entity for future violations of a statutory duty designed to protect public safety and therefore against the policy of the law under Civil Code Section 1668.

2. (Workers’ Compensation) Special risk exception did not apply to employee injured during commute because there was no relationship between the risk and the location of the premises/conditions within the employer’s control. Zenith Insurance Company v. Workers’ Compensation Appeals Board and Javier Hernandez (No. No C10549 WCAB Case No. ADJ16567838 California Court of Appeal Third Appellate District Filed May 1, 2025)

The original workers compensation proceeding concerned application of the so-called “going and coming rule” that generally provides that workers’ compensation benefits are not available for an injury sustained during an employee’s commute. In this matter, respondent the Workers’ Compensation Appeals Board (the Board) determined that under the “special risk” and “dual purpose” exceptions to the going and coming rule, workers’ compensation coverage applied to injuries that the respondent sustained while riding home in a vanpool arranged by another employee.

The Petitioner Insurance Company appealed and argued the Board’s findings were based on legal error and not supported by substantial evidence. The Insurance Company argued that the respondent’s injury was noncompensable because it fell within the scope of the going and coming rule and the exception relied upon by the Board do not apply to the facts before the appellate division.

The appellate court agreed with the Insurance Company and that the exception relied upon by the Board did not apply and therefore vacated the Board’s order and remanded for further proceedings consistent with the opinion. The exceptions relied upon included (1) if but for the employment the employee would not have been at the location where the injury occurred (zone of employment) and (2) if the risk is distinctive in nature or quantitatively greater than risks common to the public than the special risk exception would apply. The Court of Appeal noted that neither the Board nor the respondents supplied authority for rendering the zone of employment exception as large as an entire commute. Under the exception, there must be a relationship between the risk and the location of the employer’s premises and/or conditions over which the employer exercised some control. Because no relationship existed, the court deemed the exception inapplicable.

3. (Arbitration) Plaintiff/cross-defendant’s conduct constituted waiver of the right to pursue arbitration, where he sought injunctive relief and a jury trial; opposed a demurrer; and propounded over 700 discovery requests. Stephen R. Hofer v. Vicky Boladian (No. B339542 Los Angeles County Super. Ct. No. 23SMCV04868 California Court of Appeal Second Appellate District Division Five Filed May 9, 2025)

Under the California Arbitration Act pursuant to California Code of Civil Procedures Section 1280 et seq., a party with a contractual right to compel arbitration of a dispute may waive that right. The California Supreme Court noted in the Quach v. California Commerce Club, Inc. (2024) that a waiver of this right can occur under the California Arbitration Act if it is shown that a party has intentionally relinquished or abandoned its known right to compel arbitration. In this case, the litigants seeking to compel arbitration initiated this lawsuit by filing a complaint in court and, while in the judicial forum, sought two forms of preliminary injunctive relief, opposed a demurrer, propounded more than 700 discovery requests, demanded a jury trial in their case management conference statement and represented that they would be litigating substantive motions, and posed jury fees. It was not until the opposing party filed a cross-complaint that the litigants filed a motion to compel arbitration for more than six months into the litigation in court. The appeals court concluded that the conduct of the litigants in this case constituted a waiver of the right to compel arbitration. The appeals court therefore affirmed the trial court’s order denying the motion to compel.

4. (MSJ-Dangerous Condition) Trial court properly granted summary judgment for city, where plaintiff presented no evidence of the city’s actual or constructive notice of the crack in the street that caused her skateboard accident. Jennifer Restivo v. City of Petaluma (No. A169918 Sonoma County Super. Ct. No. SCV-270474 California Court of Appeal first Appellate District Division One Filed May 20, 2025)

In this appeal from a summary judgment in a dangerous condition of public property case, the plaintiff alleged that a wheel of a skateboard caught in a large crack in a residential street, causing her to fall and sustain serious injury to her arm. The defendant City moved for summary judgment on numerous grounds, including that it had neither actual nor constructive notice of the alleged dangerous condition. The trial court ruled that the plaintiff raised no triable issue as to this element of her dangerous condition claim, and that was the sole issue on appeal.

The appeals court affirmed the trial court’s ruling. It noted that to establish liability under Government Code section 835, a plaintiff must prove that, at the time of injury, a dangerous condition existed on public property, that it created a reasonably foreseeable risk of the kind of injury suffered, and that it proximately caused the injury. Plaintiff must also prove that a public employee’s negligence or misconduct created the dangerous condition, or that the public entity had actual constructive notice of the condition for a sufficient time before the injury to protect against it. The appellate court echoed the trial court’s conclusion that the plaintiff presented no evidence of the city’s actual or constructive notice. Plaintiff made sweeping assertions that the city was generally aware of cracks in the street, or that it knew of street conditions due to Pavement Management Reports, were insufficient. The appeals court found that summary judgment was proper as the plaintiff raised no triable issue of fact.

5. (EMS Fees) Contract-based claim for declaratory relief related to obligations arising after treatment was not foreclosed by prior holding regarding hospitals’ duty to disclose fees prior to providing emergency treatment. Joshua Naranjo v. Doctors Medical Center of Modesto, Inc. (No. F083197 Super. Ct. No. CV-21-001363 California Court of Appeal Fifth Appellate District Filed May 23, 2025)

Plaintiffs brought this class action lawsuit against defendant hospital, alleging, among other things, that the hospital violated provisions of unfair competition law (UCL) (Bus. & Prof. Code section 17200 et seq.) and Consumers Legal Remedies Act (CLRA) (Civ. Code, section 1750 et seq.) in connection with the hospital’s emergency room billing practices. In particular, plaintiff alleged that the hospital’s practice of charging him (and other similarly situated persons) an undisclosed “Evaluation and Management Services Fee” (EMS Fee) ‘without any notification of its intention to charge such a fee and without any agreement to pay for such separate fee” was an “unfair, deceptive, and unlawful practice” in violation of these statutes.

The trial court sustained the hospital’s demurrer to each cause of action in the first amended complaint without leave to amend and entered a judgment of dismissal. The appeals court noted that in 2023, it filed an opinion reversing the judgment, concluding that plaintiff had stated valid causes of action under the UCL and CLRA and for declaratory relief based on the hospital’s failure to apprise prospective emergency room patients of the EMS Fee, and directed the court, on remand, to consider anew any future motion by the plaintiff to amend the his FAC to state a breach of contract cause of action. The California Supreme Court granted review.

In February of 2025, the California Supreme Court transferred the case back to this appellate court and directed it to vacate its decision and reconsider the matter in light of the California Supreme Court ruling in Capito v. San Jose Healthcare System, LP (2024), in which it held Hospital’s did not have a duty under the UCL or CLRA, beyond their obligations under the relevant statutory and regulatory scheme, disclose EMS fees prior to treating emergency patients.

Having considered the matter in light of Capito decision, the appeals court reversed its judgment. It concluded that (1) the plaintiff’s claims were barred to the extent that they were premised on a contention that the hospital had a duty beyond those required and the relevant statues and regulations to disclose its intent to charge prospective emergency room patients and EMS Fee prior to providing their emergency care treatment and (2) the plaintiff had otherwise stated a valid contract-based cause of action for declaratory relief to determine his payment obligation under the hospital’s “Consent for Treatment and Conditions of Admission” (COA); and (3) leave to amend should have been granted, and plaintiff should have been granted and the plaintiff should be permitted to amend its complaint to state, if he is able, causes of action for breach of contract and violations of UCL and CLRA subject to parameters stated in the appellate divisions opinion.

In summary, the appellate division determined that there was a dispute as to the definition of charges for services within the COA. It found that both the plaintiff and hospital’s interpretation and characterization of that term were reasonable. Accordingly, there were questions regarding whether the COA obligated the plaintiff to pay the EMS Fee. This, although most of the plaintiff’s claims were focused on the hospital’s duty to disclose the EMS Fee prior to treatment which were resolved by Capito, this contract-based declaratory relief claim was not resolved by the California Supreme Court’s decision and fell within the ambient of Code of Civil Procedure section 1060, which states that a person interested under a written agreement may bring an action for the declaration of right, including the determination on questions of construction or validity arising under the instrument.

6. (Wiring Settlement Funds) Trial court correctly concluded that defendants, who wired settlement funds to impostor pretending to be plaintiffs, were in the best position to prevent the fraud. Brian Thomas v. Corbyn Restaurant Development Corp (No. D083655 Super. Ct. No. 37-2021-00047188-CU-PO-NC California Courts of Appeal Fourth Appellate District Division One Filed May 27, 2025)

This case presented an issue of first impression in California as to which party bares the risk of loss when an imposter causes one party to a settlement to wire settlement proceeds to the imposter instead of the other settling party. After plaintiff and defendants settled a personal injury lawsuit for $475,000, an unknown third party purporting to be plaintiff’s counsel sent “spoofed” emails to defendants’ counsel providing fraudulent wire instructions for the settlement proceeds. Defendants’ counsel wired the settlement proceeds to the fraudulent account and the third party absconded with the funds. Once fraud was discovered, plaintiff asked for the settlement money, but defendants refused to pay. Plaintiff then applied ex parte to enforce the settlement agreement.

Noting the lack of California authority discussing this topic, the trial court applied persuasive federal case law that uniformly shifts the risk of loss to the party in the best position to prevent the fraud. After looking at the totality of the circumstances, the trial court found the defendants were in the best position to prevent the fraud and that the plaintiff bore no comparative fault. The court granted the plaintiff’s application to enforce the settlement and entered judgment in his favor for the sum of the settlement proceeds.

On appeal, defendants maintained the trial court chose the correct law to apply but applied it incorrectly by mischaracterizing the evidence that supported shifting the blame to the defendants, and by failing to consider the evidence that supported shifting the blame to the plaintiff. The Defendants assert that by doing so, the trial court undertook an overly simplistic analysis that presumed the payor is in the best position to avoid fraud. Notwithstanding, the appellate division agreed with the authority and which the trial court relied on and disagreed with the trial court misapplied it. The record showed that the trial court assessed each party’s role in preventing the fraud. Substantial evidence supported the court’s finding that several red flags should have alerted the defendants to the fraud, and that there were none that should have alerted the plaintiff. Accordingly, the appeals court affirmed the judgment.

7. (Conditions of Admission Assignment of Benefits) Hospital’s conditions of admission and assignment of benefits were unenforceable and therefore could not be invoked to compel payment from insurance company. Dameron Hospital Association v. Progressive Casualty Insurance Company (No. C099467 Super Ct. No. STK-CV-UBT-20150002249 California Court of Appeal Third Appellate District (San Joaquin) Filed May 27, 2025)

A patient received health care coverage through Medi-Cal after she suffered injuries in an automobile accident. She was treated at the plaintiff’s hospital. The plaintiff hospital requires patients or their family members to sign a condition of admissions (COA) when the hospital provides patients’ emergency medical care. The COA contains an assignment of benefits (AOB) with language that assigns to hospital direct payment of uninsured and underinsured motorist benefits that would otherwise be payable to those patients under their automobile insurance policies.

Here, the patient’s policy with defendant and respondent Insurance Company included Uninsured and Underinsured motorist coverage, and the hospital sought to collect payment for the patient’s treatment directly from the insurance company out of the insurance benefits at rates above the rates Medi-Cal would pay. The insurance company did not pay the hospital and settled a claim to collect the uninsured motorist benefits with the patient. The hospital sued the insurance company seeking damages, and injunction to enjoin the insurance company from ignoring the AOB, and declaratory relief holding that the AOB was enforceable.

While this case was pending, the appeals court issued the decision in another case involving the same hospital. It found among other things that the COA forms at issue were contracts of adhesion and the AOBs were unenforceable because it was not within the reasonable possible expectations of patients that a hospital would collect payments for emergency care directly out of their uninsured motorist benefits. Applying their decision in that case to the present case, the trial court sustained the demurrer to the operative complaint in this action without leave to amend. The trial court found that the action barred by collateral estoppel. The trial court also found that even if collateral estoppel were not to apply, multiple holdings and the reasoning in the earlier hospital defendant case required it to sustain the demurrer.

On appeal, the hospital argued that because the patient had Medi-Cal insurance, a fact pattern not considered in the earlier case involving the hospital, the trial court improperly found collateral estoppel applied. The hospital also argued that given the statutes and regulations governing Medi-Cal coverage, the reasoning that was applied in the first hospital case regarding AOBs did not otherwise support the trial court’s ruling.

The appeals court concluded that under reasoning applied in the earlier case, the COAs remain contracts of adhesion, it was not within the reasonable expectation of Medi-Cal patient that a COA will contain an assignment of insurance benefits to the facility providing him or her with emergency care and therefore the AOB contained in the COA was unenforceable. The appeals court therefore affirmed the trial court’s order sustaining the demurrer and the judgment on behalf of the insurance company.

8. (Discovery Sanctions) Imposition of sanctions under Code of Civil Procedure sections 2023.10 and 2023.030 for gamesmanship tactic was valid as an unusual form of discovery abuse. Shawn Agnone v. Frank Charles Agnone II (No. B321252 Los Angeles County Super. Ct. No. BD659645 California Court of Appeal Second Appellate District Division Three Filed May 30, 2025)

Plaintiff subpoenaed a third-party witness in connection with a marital dissolution action against her former husband. After the witness’s attorney refused to turn on his webcam or otherwise make himself visible to the plaintiff’s counsel during the remote deposition, the plaintiff counsel filed a motion to compel compliance with a subpoena and a request for sanctions under provisions for Civil Discovery Act (Code of Civil Procedures section 2016.010 et seq.) and other statutes governing third-party subpoenas. The witness’s counsel opposed the motion; however, before plaintiff filed her reply brief, and the plaintiff and her former husband settled the dissolution action, rendering the motion to compel moot. The plaintiff withdrew her motion to compel, but argued sanctions were nonetheless warranted to reimburse her for the expenses incurred due to the witness and his counsel’s gamesmanship during the deposition. The trial court granted the request for sanctions in part, ordering the witness to pay plaintiff counsel fees of nearly $10,000.

Earlier this case was the subject of an appeal where the appellate court concluded that sections 2023.10 and 2023.030 of the California Discovery Act did not independently authorize the trial court to impose monetary
sanctions for discovery misuses like those at issue here. The California Supreme Court granted the plaintiff’s petition for review of this decision and deferred further action pending consideration and disposition of a related issue in a case called City of Los Angeles v. PricewaterhouseCoopers, LLP (2024). That case held a trial court may invoke its independent authority to impose monetary sanctions when confronted with an unusual form of discovery abuse not already addressed by the method-specific sanctions provisions of the Civil Discovery Act. The California Supreme Court transferred this matter back to this appellate division with directions to vacate its original decision and to reconsider the cause in light of the City of Los Angeles v. PricewaterhouseCoopers, LLP decision. The appeals court concluded that the trial court had authority to oppose sanctions against the witness and counsel notwithstanding the plaintiff’s withdrawal of her motion to compel. The plaintiff requested sanctions because plaintiff and his attorney’s gamesmanship made it impossible to determine or develop evidence of any coaching, misuse of the discovery process.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. 1. (Judicial Behavior) Judge’s erroneous and prejudicial evidentiary rulings-coupled with “bizarre,” irrelevant personal musings about society and race-warranted a new trial. Sabrena Odom v. Los Angeles Community College District (No. B327997 Los Angeles County Super. Ct. No. BC724401 California Court of Appeal Second Appellate District Division Eight Filed April 7, 2025)
   2. (Peremptory Challenges) Sustained objection under Code of Civil Procedure Section 231.7, which prohibits peremptory challenges based on prospective juror’s race, raises mixed question of law and fact subject to de novo review. The People v. Robert Hinojos (No. B325167 Los Angeles County Super. Ct. No. BA457195 California Court of Appeal Second Appellate District Division Seven Filed April 8, 2025)
   3. (Sealing of Record) Requests to seal civil harassment records were properly denied when defendant failed to meet California Rules of Court requirements for sealing records. Lawrence Marino v. Mark Alon Rayant (No. B337874 Los Angeles County Super Ct. No. 22STRO06089 California Court of Appeal Second Appellate District Division One Filed April 18, 2025, Certification and Order for Publication)
   4. (Release of Liability) Because a signed release unequivocally released Defendants from all liability resulting from any injury related to the event, Plaintiff’s injuries resulting from a third-party altercation were covered by the release. Zackary Diamond v. Scott Schweitzer (No. F086150 Super. Ct. No. BCV-20-100707 California Court of Appeal Fifth Appellate District Filed April 21, 2025)
   5. (Contractual Release by Employer) Despite contract between defendants and plaintiff’s employer that allegedly relieved defendants from liability for negligent acts, summary judgment was not appropriate where employee-plaintiff had not signed the contract. Myranda Isabella De La Cruz v. Mission Hills Shopping Center, LLC (No. B333182 Los Angeles County Super. Ct. No. 20STCV28647 California Court of Appeal Second Appellate District Eight Filed April 28, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

• 1. (Judicial Behavior) Judge’s erroneous and prejudicial evidentiary rulings-coupled with “bizarre,” irrelevant personal musings about society and race-warranted a new trial. Sabrena Odom v. Los Angeles Community College District (No. B327997 Los Angeles County Super. Ct. No. BC724401 California Court of Appeal Second Appellate District Division Eight Filed April 7, 2025)

This matter involved an appeal from a judgment on a jury verdict awarding millions of dollars to the plaintiff on her claim for sexual harassment, retaliation and related claims. The appeals court reversed the judgment, not for lack of substantial evidence, but for prejudicial errors in the admission of irrelevant and damaging “me-too” evidence from a witness who was not similarly situated to plaintiff, and for the equally prejudicial and erroneous admission of 20-year-old newspaper articles and other evidence of the alleged harasser’s misdemeanor convictions.

The appeals court noted that this was an unusual case, due to the significant arbitrary and prejudicial evidence rulings of the judge presiding over the trial.

After the judgment was entered, defendants filed motions for a new trial and for partial judgment notwithstanding the verdict. At the hearing on those motions, which were denied, the trial judge initiated extended, bizarre personal comments on the racial matters with newly substituted defense counsel, despite there being no racial issue of any kind in the case. Defendants filed a motion to disqualify the judge for cause and to void his rulings on the motions. After writ proceedings and referral to a neutral judge, the trial judge was disqualified in his rulings on the post judgment motions were voided.

In this appeal from the judgment, the appeals court did not need to determine whether the trial judge’s prejudicially erroneous evidentiary rulings during trial were motivated, in part, as defendant contended, by “persistent racial and gender bias.” The appeals court found that the judge’s rulings were motivated by personal opinions untethered to the rules of evidence. Whatever the motivations may have been, the judge admitted inflammatory evidence without consideration of the evidentiary rules, with undeniable prejudicial effect, thus preventing a fair trial. Accordingly, the appeals court reversed the judgment. The trial judge was the Honorable Robert S. Draper, Los Angeles County Superior Court.

• 2. (Peremptory Challenges) Sustained objection under Code of Civil Procedure Section 231.7, which prohibits peremptory challenges based on prospective juror’s race, raises mixed question of law and fact subject to de novo review. The People v. Robert Hinojos (No. B325167 Los Angeles County Super. Ct. No. BA457195 California Court of Appeal Second Appellate District Division Seven Filed April 8, 2025)

Plaintiff appealed from a conviction after a jury found him guilty of first-degree murder. On appeal, the plaintiff contended the trial court erred in sustaining the prosecution’s objection under Code of Civil Procedure 231.7, which provides a statutory prohibition to a party’s use of a peremptory challenge based on prospective juror’s race or perceived race. As a matter of first impression, the appeals court determined the trial court’s sustaining of a section 231.7 objection raised a mixed question of law and fact, which the appeals court reviews de novo, deferring to factual findings if supported by substantial evidence. Applying that standard, the appeals court concluded the trial court did not err.

In the trial below, the court sustained the prosecutor’s section 231.7 objection and determined that race, ethnicity, or national origin bore on the facts of the case because it revolved around Mexican Mafia membership. The appeals court found that trial court correctly concluded that there was “more than a mere possibility” an objectively reasonable person would view race as a factor in the decision to challenge a prospective juror.

• 3. (Sealing of Record) Requests to seal civil harassment records were properly denied when defendant failed to meet California Rules of Court requirements for sealing records. Lawrence Marino v. Mark Alon Rayant (No. B337874 Los Angeles County Super Ct. No. 22STRO06089 California Court of Appeal Second Appellate District Division One Filed April 18, 2025, Certification and Order for Publication)

Plaintiff obtained a civil harassment restraining order against the defendant in a proceeding where the defendant was not present. The defendant later appeared, arguing he had not received notice of the plaintiff’s restraining order request, and the request was without merit. The trial court terminated the restraining order.

Defendant then moved to seal the entire record of the restraining order proceedings, citing background checks as he applied for jobs and subjected him to increased scrutiny by airport authorities when returning from international travel. The trial court denied the sealing request because the defendant had not made the necessary showing for sealing under California Rules of Court. The defendant appealed the order. The defendant contended there was no federal constitutional right of public access to records of restraining order proceedings, therefore the court rules for sealings records, which are based on federal constitutional requirements as interpreted by the California Supreme Court, are inapplicable. Although the sealing rules are based on federal constitutional principles, the appeals court noted that they provided independent, statutory right of public access to court records. The unambiguous language of those rules created a broad presumption of public access to all superior court records with only limited exceptions. None of those exceptions applied to this case. The trial court did not err in finding that the defendant had not met its high bar for sealing imposed by those rules. The appeals court therefore affirmed the trial court’s ruling.

• 4. (Release of Liability) Because a signed release unequivocally released Defendants from all liability resulting from any injury related to the event, Plaintiff’s injuries resulting from a third-party altercation were covered by the release. Zackary Diamond v. Scott Schweitzer (No. F086150 Super. Ct. No. BCV-20-100707 California Court of Appeal Fifth Appellate District Filed April 21, 2025)

Plaintiff appealed from a judgment entered after the trial court granted a motion for summary judgment brought by the defendants. Plaintiff suffered injuries from a punch inflicted by a third party during an altercation in the restricted pit area at the defendant’s speedway. Plaintiff alleged defendants were negligent in failing to provide reasonable security, adequately responding to the altercation, and undertaking reasonable rescue efforts. Defendants moved for summary judgement, asserting plaintiff’s negligence claims were barred by the release and waiver of liability form he signed to gain admission to the pit area. The trial court granted the motion, concluding the release’s language was clear, unequivocal, broad in scope, and included the negligent conduct alleged in this case. The court interpreted the release as including risks arising out of or related to racing activities. It concluded the assault was such a risk and, thus, was the type of event anticipated and covered by the release.

The appeals court affirmed finding that the requirements for an enforceable release had been met: (1) the release contains clear, unambiguous and explicit expression of the parties’ intent to release all liability for plaintiff’s injury; (2) the alleged acts of negligence resulting in the injury are reasonably related to the objection or purpose for which the release was given; and (3) the release does not contravene public policy. The appeals court further concluded that (4) the defendant’s adequately raised a complete defense based on the signed release of liability to all theories of negligence alleged in the complaint, and (5) plaintiff failed to rebut that defense in opposition to the defendants’ motion for summary judgment.

• 5. (Contractual Release by Employer) Despite contract between defendants and plaintiff’s employer that allegedly relieved defendants from liability for negligent acts, summary judgment was not appropriate where employee-plaintiff had not signed the contract. Myranda Isabella De La Cruz v. Mission Hills Shopping Center, LLC (No. B333182 Los Angeles County Super. Ct. No. 20STCV28647 California Court of Appeal Second Appellate District Eight Filed April 28, 2025)

Plaintiff tripped on a pothole in defendant shopping center parking lot. A third-party entity managed the shopping center. The plaintiff sued the shopping center and the shopping center moved for summary judgment in the tort case on the basis of a contract. The contract was between the shopping center and the plaintiff’s employer, which was a tenant in the shopping center. The contract contained an exculpatory clause that relieved the defendant shopping center from any liability for negligent or wrongful acts. The motion did not explain why the plaintiff would be bound by a contract she did not sign. Notwithstanding, the trial court granted summary judgment.

The appeals court reversed noting that an individual or party must agree to a contract to be bound by it. Here, it was the shopping center’s burden on summary judgment to explain why its motion had a legal basis. The defendant failed to offer a winning theory, and the court erred in granting the motion. The appeals court reached this conclusion on independent review. The defendant shopping center asserted that the plaintiff forfeited this argument by failing to present it to the trial court. The plaintiff’s opposition to the defendant’s motion did not mention the parties to the contract excluded her. The appeals court noted that it has discretion to considered forfeited claims. It exercised this discretion with considerable reluctance, for the forfeiture rule rests on sound principles. But this legal error was found to be foundational, because contracts require assent. While the shopping center argued that the question might involve factual issues, that is was conceivable that the plaintiff might have contracted with her tenant employer to incorporate the contract between the employer and the shopping center this information was not included within the moving papers of the shopping center and thus, it was not entitled to judgment as a matter of law.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. 1. (Use of Privileged Communication) Trial court did not abuse its discretion in disqualifying attorney who received a privileged communication from opposing counsel, refused to destroy it, and shared it with experts. Christian L. Johnson v. Department of Transportation (No. C099319 Super. Ct. No. STK-CV-UCR-2019-281 California Court of Appeal Third Appellate District Filed March 17, 2025)
   2. (Default Judgment Set Aside) Client was entitled to mandatory relief from default judgment under Code of Civil Procedure Section 473(b) because the default was caused by his counsel’s calculated delay-not his own. Eileen Talbott v. Kamaran Ghadimi (No. B329889 Los Angeles County Super. Ct. No. 20LBCV00201 California Court of Appeal Second Appellate District Division Seven Filed March 18, 2025)
   3. (Statutory Offer to Compromise) While CCP 998 sets out a default rule for cost-shifting, parties remain free to agree to their own allocation of costs and fees as part of a settlement agreement. Oscar J. Madrigal v. Hyundai Motor America (No. S280598 Third Appellate District C090463 Placer County Superior Court S-CV-0038395 Filed March 20, 2025)
   4. (Burden of Proof Shifting) Burden of proof may be shifted to defendant doctor when the CT scan he delayed in ordering was crucial to establishing medical negligence causation. Kimberly Montoya v. The Superior Court of Orange County (No. G064459 Super. Ct. No. 30-2022-1239435 California Court of Appeal Fourth Appellate District Division Three Filed March 21, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

• 1. (Use of Privileged Communication) Trial court did not abuse its discretion in disqualifying attorney who received a privileged communication from opposing counsel, refused to destroy it, and shared it with experts. Christian L. Johnson v. Department of Transportation (No. C099319 Super. Ct. No. STK-CV-UCR-2019-281 California Court of Appeal Third Appellate District Filed March 17, 2025)

Plaintiff sued defendant arising out of an employment claim. During the litigation, the defendant attorney sent an email about the litigation to the supervisor for the plaintiff employee. The email was marked with a confidentiality notice, as well as a disclaimer that contained privileged material and attorney work product. For unknown reasons, the supervisor sent an image of the email to the employee plaintiff who shared it with his attorney. The attorney then shared the email with several retained experts and others. The defendant sought a protective order on the grounds that the email was covered by the attorney-client privilege. The trial court entered the protective order. Subsequently, the parties disputed that the plaintiff complied with the protective order’s terms. Eventually, the defendant filed a motion to enforce the order and a motion to disqualify the employee’s attorney and three retained experts, which the trial court granted. The plaintiff appealed against the disqualification order, arguing, that the email was not protected by the attorney-client privilege and the court abused its discretion in ordering disqualification.

The appeals court affirmed. The appeals court noted that attorney communications with agents and employees that represented entities may be covered by the attorney-client privilege. It then found that substantial evidence supported the trial court’s conclusion that the email was privileged based on the fact that the attorney who sent the email represented the defendant, the email involved legal advice or information, and the nature of the relationship between the attorney and the supervisor was that of the defense attorney obtaining information relevant to litigation from a defendant employee. Because the communications were privileged and the trial court did not abuse its discretion in ordering disqualification, the order was affirmed.

• 2. (Default Judgment Set Aside) Client was entitled to mandatory relief from default judgment under Code of Civil Procedure Section 473(b) because the default was caused by his counsel’s calculated delay-not his own. Eileen Talbott v. Kamaran Ghadimi (No. B329889 Los Angeles County Super. Ct. No. 20LBCV00201 California Court of Appeal Second Appellate District Division Seven Filed March 18, 2025)

Defendant backed out of an oral agreement to settle a collection action against his former patient. The patient filed a cross-complaint for breach of contract to enforce the oral settlement agreement. The defendant missed the deadline to respond to the cross-complaint, and the trial court entered his default. The defendant filed a motion to set aside the default under the mandatory relief provision of Code of Civil Procedures, section 473, subdivision (b). The trial court denied the motion, finding the default was caused by calculated litigation strategy, not by neglect or mistake by the defendant’s attorneys.

The appeals court reversed finding that the defendant was entitled to relief under the mandatory provision of section 473 (b). It found that a defendant may be entitled to relief under this provision even where an attorney makes a bad strategic decision, rather than where the court held such relief may not be available in that situation. The court noted that relief would serve the purposes of a statute because it was designed to discharge the innocent client of the consequences of the attorney’s fault; to place the burden on counsel; and to discourage additional litigation in the form of malpractice actions by the defaulted client.

• 3. (Statutory Offer to Compromise) While CCP 998 sets out a default rule for cost-shifting, parties remain free to agree to their own allocation of costs and fees as part of a settlement agreement. Oscar J. Madrigal v. Hyundai Motor America (No. S280598 Third Appellate District C090463 Placer County Superior Court S-CV-0038395 Filed March 20, 2025)

Plaintiff sued defendant car manufacturing company under the Song-Beverly Consumer Warranty Act, alleging that the car it purchased did not operate as warranted. The defendant made a Code of Civil Procedure section 998 offer, which plaintiff let expire. The defendant later made a second section 998 offer, offering to pay the purchase price of the car plus expenses, or a fixed amount. Again, the offer expired. On the first day of trial, the plaintiffs agreed to a settlement whereby the defendant would pay a certain sum, and the plaintiff could seek their costs and fees by motion. The court affirmed the terms, and there was no mention of section 998. When plaintiffs moved to recover their costs, the defendant argued they could not recover costs incurred after the date of the second offer, as they ultimately settled for a less favorable payment. The court disagreed, concluding that section 998 did not apply. The Court of Appeal reversed in a split decision. The California Supreme Court was then decided the question as to whether the plaintiff who does not accept a 998 offer, but later agrees to settle before trial, necessarily avoids the post-offer cost-shifting effects of section 998.

The California Supreme Court affirmed. It noted that a plaintiff who does not accept a 998 offer but later fails to obtain a more favorable judgment or award cannot recover post-offer costs. Here, the California Supreme Court noted that the lower court correctly rejected the trial court’s construction, i.e., that cases that settle before trial, but after a section 998 offer is rejected or deemed withdrawn, do not fall within the cost-shifting scheme. That interpretation flouts the statute’s language and purpose of encouraging settlement. Section 998(a) does not require that the case be resolved by trial before it comes into play. Nor does it exclude from its reach cases resolved by a post-rejection, but pretrial, via a settlement. The parties remained free to agree to their own allocation of costs and fees a part of a settlement agreement.

• 4. (Burden of Proof Shifting) Burden of proof may be shifted to defendant doctor when the CT scan he delayed in ordering was crucial to establishing medical negligence causation. Kimberly Montoya v. The Superior Court of Orange County (No. G064459 Super. Ct. No. 30-2022-1239435 California Court of Appeal Fourth Appellate District Division Three Filed March 21, 2025)

This petition for writ of mandate involved a claim of medical malpractice by the plaintiff against the defendant physician. The plaintiff claimed that the physician committed malpractice when he was treating the plaintiff patient in a hospital, observed signs of potential stroke, which she was in fact experiencing, but he failed to call a “code stroke.” As a result, a CT scan was not taken of her brain until several hours later, and she is presently severely disabled because of her stroke. The plaintiff claimed her damages would have been significantly less severe had a code stroke been called immediately, which would have resulted in a CT scan that revealed the ongoing stroke, and which would have led doctors to perform a thrombectomy to mitigate the damage.

The question before the court was a request for a burden-shifting jury instruction. The plaintiff contended that she could prove her damages with specificity because, in the absence of a timely CT scan, it is impossible to determine how much damage was done before a surgery would have been performed, which would not be caused by the defendant physician’s alleged negligence, as opposed to after, which would. At trial, the plaintiff requested a jury instruction shifting the burden to proof to the defendant physician to prove that his alleged negligence did not cause her damages. The trial court denied the instruction. Upon the filing of the plaintiff’s writ petition, the court issued a stay of the impending trial.

The appeals court issued a writ of mandate instruction to the court to vacate its ruling denying the requested jury instruction. If determined that if the plaintiff can present evidence (1) that the doctor was negligent in failing to order a CT scan, (2) there is a reasonable possibility that a CT scan followed by a surgery would have mitigated her damages, (3) that a CT scan was critical to establish causation, then public policy required the burden shifting to defendant physician to show that his negligence did not cause for damages. Where the absence of critical evidence of causation is a direct result of a tortfeasor’s negligence, the tortfeasor should not be permitted to benefit from that negligence.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. 1. (Statutory Offer to Compromise) Code of Civil Procedure Section 998 limits only prejudgment costs and fees-not costs and fees incurred to enforce a judgment. Caesar Elmi v. Related Management Company, L.P. (No. G062788 Super. Ct. No. 30-2019-01105181 California Court of Appeal Fourth Appellate District Division Three Filed February 6, 2025)
   2. (Torts) Substantial evidence supported defense verdict on school district’s liability after plaintiff suffered an injury as a result of a teacher’s attempt to break up a fight. I.C. v. Compton Unified School District (No. B322148 Los Angeles County Super. Ct. No. BC665118 California Court of Appeal Second Appellate District Division Eight Filed February 6, 2025)
   3. (Attorney-Client Privilege) Reports on meeting of review board that included legal counsel for purposes of assessing liability for past events and preventing exposure due to future events were shielded by attorney-client privilege. Frankie Greer v. County of San Diego (No. 23-55607 D.C. No.3:19-cv-00378JO-DEB United States Court of Appeal Ninth Circuit Filed February 10, 2025)
   4. (Medical Staff) Because the medical board of directors was not composed of licentiates, it exceeded its authority under Business and Professions Code Section 809.05 in reversing peer review committee’s decision to lift doctor’s suspension. Jason Y. Lin v. Board of Directors of Primecare Medical Network, Inc. (No. D084821 Super. Ct. No. CIVSB2313160 California Court of Appeal Fourth Appellate District Division One Filed February 19, 2025)
   5. (Psychiatric Patients) Hospital’s writ request for County to stop sending mental health hold patients to its facilities was properly denied when its complaint failed to identify any legal mandatory duty violated by County. Siskiyou Hospital, Inc. v. County of Siskiyou (Nos. C097671, C098311 Super. Ct. No. SCCV-CVPT_2019-1501 California Court of Appeal Third Appellate District Filed February 25, 2025)
   6. (Whistle Blower Claims) Publicly operated health facilities are subject to Health and Safety Code Section 1278.5 whistleblower claims. Timothy Ryan, M.D. v. County of Los Angeles (No. B320677 Los Angeles County Super. Ct. No. BC606535 California Court of Appeal Second Appellate District Division Three Filed February 28, 2025)
   7. (Expert Testimony) Expert declaration concluding that medical negligence defendant acted within the standard of care without providing underlying facts and reasons was insufficient to satisfy defendant’s burden at the summary judgment stage. Sabrina Zaragoza v. Nadir Adam, M.D. (No. A168100 San Francisco County Super. Ct. No. CGC21591784 California Court of Appeal First Appellate District Division Three Filed February 27, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

• 1. (Statutory Offer to Compromise) Code of Civil Procedure Section 998 limits only prejudgment costs and fees-not costs and fees incurred to enforce a judgment. Caesar Elmi v. Related Management Company, L.P. (No. G062788 Super. Ct. No. 30-2019-01105181 California Court of Appeal Fourth Appellate District Division Three Filed February 6, 2025)

Plaintiff rejected a settlement offer made by defendant, pursuant to Code of Civil Procedure section 998. The case was resolved for less than the amount of the offer. Consequently, the plaintiff’s award of prejudgment costs and attorneys’ fees were limited to those incurred before the defendant’s statutory offer to compromise. On appeal, the court affirmed the trial court’s determination that the defendant’s offer was worth more than the case resolved for, and concluded the court did not err in limiting the plaintiff’s costs and fees.

Following entry of judgment, the plaintiff filed a second motion, seeking an award of fees and cost incurred in efforts to enforce the judgment. Although the defendant filed no opposition to the motion, the court denied it, reasoning the plaintiff was not entitled to any fees or costs after the defendant served its offer. The plaintiff appealed that denial, arguing the court erred because section 998 applies only to prejudgment costs and fees. The appeals court agreed with the plaintiff’s position and therefore reversed.

Post judgment costs incurred in connection with efforts to enforce the judgment are not governed by section 998. Also, defendants’ arguments on the merits of the plaintiff’s motion were forfeited because it did not file an opposition. The appeals court consequently remanded the motion to the trial court with directions to reconsider it on the merits.

• 2. (Torts) Substantial evidence supported defense verdict on school district’s liability after plaintiff suffered an injury as a result of a teacher’s attempt to break up a fight. I.C. v. Compton Unified School District (No. B322148 Los Angeles County Super. Ct. No. BC665118 California Court of Appeal Second Appellate District Division Eight Filed February 6, 2025)

Plaintiff, a minor student, started a fistfight with another student in class. The teacher intervened to prevent the two combatants from injuring themselves or anyone else. While pulling the student off plaintiff, the teacher fell onto plaintiff and broke his leg. The plaintiff filed a suit against the school district alleging the district had failed to train its teachers how to safely intervene in physical altercations between students and the teacher was negligent in attempting to stop the fight due to his physical condition (this teacher weighed 375 pounds and had been using a walker due to a back condition). The jury concluded that the defendants were not negligent and in fact the plaintiff and the other student was each equally responsible for harm suffered by plaintiff. The plaintiff appealed arguing that the judgment notwithstanding the verdict should have been granted because there was sufficient evidence to support the defendant’s positions that the district’s lack of training was reasonable, and the teacher acted with due care.

The appeals court affirmed. The court noted that the plaintiff’s own witness stated that the district used the same training program as generally used throughout the United States, and further, that it is typically up to the individual teacher to exercise their best judgment when intervening in a physical alteration between students. Based on the evidence in the plaintiff’s case, the court found that the jury was able and entitled to conclude that the school district was not negligent. As a result, the court affirmed the judgment.

• 3. (Attorney-Client Privilege) Reports on meeting of review board that included legal counsel for purposes of assessing liability for past events and preventing exposure due to future events were shielded by attorney-client privilege. Frankie Greer v. County of San Diego (No. 23-55607 D.C. No.3:19-cv-00378JO-DEB United States Court of Appeal Ninth Circuit Filed February 10, 2025)

Plaintiff sued the County alleging he had suffered serious injuries while being incarcerated at the County Jail. After plaintiff settled his claims, the local newspaper moved to intervene to unseal documents from the County’s Critical Incident Review Board (CIRB) that had been produced in the litigation. According to the County Sheriff’s Department Policy, the CIRB’s purpose was to consult with legal counsel when an incident occurs which may give rise to litigation, to assess the department’s civil exposure, and to recommend remedial actions to avoid future potential liability. The CIRB consists of four commanders from various Department divisions and the Chief Legal Advisor. After the intervenors moved to unseal, the district court granted the motion, and the County appealed
.
The appeals court reversed, here, the purpose of the CIRB was to investigate critical incidents, examine potential liability and avoid similar future events: Policy required the Chief Legal Advisor to be part of the CIRB; there were no contentions that the Chief Legal Advisor was absent from the meetings memorialized in the reports; and areas of potential liability for inmates’ deaths were discussed. Accordingly, the CIRB reports met the criteria for attorney-client privilege. In this opinion, the court established the eight-part test is used to determine whether information is covered by the privilege. (1) Where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at the client’s instance permanently protected (7) from disclosure by the client or legal counsel, (8) unless the protection is waived.

• 4. (Medical Staff) Because the medical board of directors was not composed of licentiates, it exceeded its authority under Business and Professions Code Section 809.05 in reversing peer review committee’s decision to lift doctor’s suspension. Jason Y. Lin v. Board of Directors of Primecare Medical Network, Inc. (No. D084821 Super. Ct. No. CIVSB2313160 California Court of Appeal Fourth Appellate District Division One Filed February 19, 2025)

The Board of Directors of Defendant Care Medical Network, appealed from a judgment granting the petition for writ of administrative mandamus (Code of Civil Procedure section 1094.5) filed by the plaintiff physician. Plaintiff’s petition challenged the final decision by the Board in peer review proceedings regarding Medical Network’s summary suspension of the plaintiff’s privileges to perform patient care services. The main issue is whether, as the trial court concluded, the Board acted in excess of its jurisdiction and committed a prejudicial abuse of discretion when it reversed the decision of the Medical Network’s judicial hearing committee that plaintiff’s summary suspension was not reasonable and warranted.

The appeals court concluded that the trial court properly granted the plaintiff’s petition and affirmed the judgment.

The appeals court found that under Business and Professions Code Section 809.05, peer review is to be performed by licentiates, defined by Section 809(b) as licensed healthcare professionals. The only exception involves acute care hospitals. Here, the Medical Network was not an acute care hospital, and therefore, the exception did not apply. Unlike the judicial hearing committee, the Board members were not licensed healthcare professionals. Accordingly, the trial court properly granted the writ based on the ground that the Board had exceeded its authority, committing prejudicial abuse of discretion in reversing the committee’s decision. The plaintiff’s patient care privileges were suspended the day after an incident involving a patient.

• 5. (Psychiatric Patients) Hospital’s writ request for County to stop sending mental health hold patients to its facilities was properly denied when its complaint failed to identify any legal mandatory duty violated by County. Siskiyou Hospital, Inc. v. County of Siskiyou (Nos. C097671, C098311 Super. Ct. No. SCCV-CVPT_2019-1501 California Court of Appeal Third Appellate District Filed February 25, 2025)

This case involved a dispute between a hospital and a local government over how persons who present with symptoms of psychiatric emergency medical condition are evaluated and treated in subject county. Under Welfare and Institutions Code section 5150, a hold may be placed on an individual who poses a danger to self or others, due to mental health disorder for up to 72 hours. According to the Plaintiff hospital, the county law enforcement regularly brought indigent Medi-Cal beneficiaries to its emergency department as 5150 detainees for psychiatric rather than physical care. Plaintiff brought a Lanterman-Petris-Short (LPS) Act violation claim against the Defendant, seeking order to prevent Defendant from continuing his practice unless physical, emergency care was involved. According to Plaintiff, the practice was harmful to 5150 patients because it was not a “designated facility” within the Act’s meaning and therefore not licensed to provide acute-level psychiatric care. Moreover, the practice severely burdened Plaintiff’s emergency services to the detriment of those needing emergency services other than psychiatric needs. The trial court disagreed, dismissing the Plaintiff’s lawsuit for several reasons including that it improperly sought an order compelling a discretionary act.

The Plaintiff hospital appealed.

The Court of Appeal affirmed. It found that none of the statutes or regulations identified by Plaintiff including Medicaid regulations, disability laws, etc., included a mandatory and ministerial duty requiring Defendant to act in a certain way and therefore there was no viable cause of action. If anything, the laws favored the Defendant county’s actions. Under the state’s Patient Anti-Dumping Act and related laws, hospitals with emergency departments must, regardless of patient ability to pay or lack of insurance, provide medical screening examinations within the hospital’s capability and treat “emergency and Medical conditions,” including psychiatric illnesses, to stabilize the ailment. Finally, “psychiatric emergency medical condition” includes mental health disorders causing patients to be an immediate danger to self or others or to be immediately unable to care for their basic necessities due to the disorder.

• 6. (Whistle Blower Claims) Publicly operated health facilities are subject to Health and Safety Code Section 1278.5 whistleblower claims. Timothy Ryan, M.D. v. County of Los Angeles (No. B320677 Los Angeles County Super. Ct. No. BC606535 California Court of Appeal Second Appellate District Division Three Filed February 28, 2025)

Plaintiff was a surgeon on the medical staff for a public hospital. He was terminated after his medical staff privileges lapsed and were not renewed. Plaintiff sued the public entity for retaliation in violation of Health and Safety Code section 1278.5, as well as other statutes. The plaintiff contended that the public hospital was performing unnecessary operations, and that the plaintiff’s supervisor was receiving financial incentives from manufacturers of various medical devices and that medical records were being falsified. The plaintiff claims he reported these concerns to public officials and departments. Plaintiff then claimed that the supervisor harassed the plaintiff among other accusations. The plaintiff filed two retaliation claims including the above-mentioned Health and Safety Code section violation. The public entity demurrered to the cause of action arguing that as a public entity it was exempt from this claim. The trial court agreed and sustained the demurrer without leave to amend. The case went to trial where the jury returned a split verdict awarding plaintiff damages. Plaintiff contended in an appeal that because the public hospital met the definition of a section 1275.8’s health care entity it was subject to that law.

The appeals court reversed in part and remanded with instructions to the trial court to include the subject public entity as a health facility under the statute. It found that the statute defines health facility as facilities operated by the state, which also expressly excluding certain public-run facilities such as correctional facilities. The statute’s legislative history supported the conclusion that public entities are, with limited exception, covered by the subject statute. Accordingly, the trial court erred in sustaining the County’s demurrer on that issue.

• 7. (Expert Testimony) Expert declaration concluding that medical negligence defendant acted within the standard of care without providing underlying facts and reasons was insufficient to satisfy defendant’s burden at the summary judgment stage. Sabrina Zaragoza v. Nadir Adam, M.D. (No. A168100 San Francisco County Super. Ct. No. CGC21591784 California Court of Appeal First Appellate District Division Three Filed February 27, 2025)

Plaintiff was admitted to a hospital with abdominal pain that was later discovered to be a bile leak. She underwent surgeries to treat the bile leak and related complications. She subsequently filed suit against defendants including a defendant doctor. Plaintiff contended that the doctor had been medically negligent and his actions fell below the standard of care during the performance of a cholecystectomy, which allegedly caused the bile leak. Plaintiff moved for summary judgment submitting the declaration of a licensed general surgeon. The expert surgeon concluded the doctor who performed the procedure within the standard of care and the bile leak was not due to any negligence on his part. The declaration did not state the facts and reasons underlying his conclusion, and plaintiff argued the declaration does not satisfy the defendant’s burden. Nonetheless, the trial court granted the doctor’s motion for summary judgment and the plaintiff appealed.

The appeals court reversed, it noted that expert opinions are only as good as the facts and reasons on which they are based, and trial courts should exclude speculative expert testimony. At the summary judgment stage, a moving defendant’s burden to show the absence of genuine issues of material fact cannot be satisfied by nearly stating ultimate facts and conclusions that are unsupported by factual detail and reasonable explanation.

Here, the defendant’s expert concluded that the defendant acted in the standard of care performing the subject surgery, but did not explain the basis of his conclusion. He did not explain the acts constitute due care during such a procedure, nor did he elaborate how he concluded the bile leak was not due to any negligence on the defendant’s part. In sum, the doctor failed to support his opinion with sufficient factual detail and reasonable explanation to show an absence of triable issue of fact.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.

1. 1. (Statutory Offer to Compromise) Disagreeing with Gorobets v. Jaguar Land Rover North America, simultaneous 998 offers to the same party may be valid to shift costs. Maritza Zavala v. Hyundai Motor America (Nos. D082747, D082940 Super. Ct. No. PSC1807879 California Court of Appeal Fourth Appellate District Division One Filed December 17, 2024)
   2. (Dangerous Condition-Public Property) Summary judgment for a dangerous condition of public property liability under Government Code Section 835 was proper when Caltrans provided evidence that it had no notice of allegedly dangerous condition. Juraj Kabat v. Department of Transportation (No. G063082 Super. Ct. No. 30-2021 01214091 California Court of Appeal Fourth Appellate District Division Three Filed December 19, 2024)
   3. (Health Care) Hospitals have no duty under the UCL or CLRA to disclose fees for evaluation and management services (EMS) prior to treating emergency room patients. Taylor Capito v. San Jose Healthcare Systems, LP (No. S280018 Sixth Appellate District H049646 Santa Clara County Superior Court 20CV366981 Filed December 23, 2024)
   4. (Emergency Medicine Expert) Health & Safety Code Section 1799.110’s standards for emergency medical services applied in malpractice claim against physician, an on-call radiologist who remotely reviewed images for an ER patient on a “stat” basis. Charlie L v. Peyman Kangavari, M.D. (No. B327714 Los Angeles County Super. Ct. No. 21STCV15446 California Court of Appeal Second Appellate District Division Two Filed January 2, 2025)
   5. (Negligent Security) Negligence claim against defendant football stadium security lacked causation where the incident occurred too quickly for defendant to intervene. Brooke Stokes v. Forty Niners Stadium Management Co., LLC (No H050639 Santa Clara County Super. Ct. No. 19CV357748 California Court of Appeal Sixth Appellate District Filed January 10, 2025)
   6. (Assumption of Risk – CTE) The assumption of risk doctrine applied to a plaintiff injured by an inherent risk of the sport (head hits), irrespective of whether the specific injury itself (CTE) was inherent to the sport. Alana Gee v. National Collegiate Athletic Association (No. B327691 Los Angeles County Super. Ct. No. 20STCV43627 California Court of Appeal Second Appellate District Division Eight Filed January 10, 2025)
   7. (Landlord Tenant) A commercial landlord consented to a month-to-month tenancy by accepting multiple months of rent following the expiration of a notice to terminate tendency. Laura Read Baca v. Yonghe Kuang (No. A171071 Alameda County Super. Ct. Nos. 23CV027202, 23AP054588 & 23AP060272 California Court of Appeal First Appellate District Division Five Filed January 13, 2025)
   8. (Federal Jurisdiction) A plaintiff’s amendment of complaint to remove federal-law claims divests of federal court of jurisdiction. Royal Canin U.S.A., Inc., v. Wullschleger et al. (Argued October 7, 2024-Decided January 15, 2025)
   9. (MICRA) Wrongful death and medical malpractice claims were sufficiently separated and distinct to warrant separate non-economic damage caps under the Medical Injury Compensation Reform Act. The Superior Court of Orange County v. Los Alamitos Medical Center (No. G064257 Super. Ct. No.30-2023-01360050 California Court of Appeal Fourth Appellate District Division Three Filed January 29, 2025)

The above court decisions came to our attention during this last month. Please find below a summary of the court opinions for your consideration.

• 1. (Statutory Offer to Compromise) Disagreeing with Gorobets v. Jaguar Land Rover North America, simultaneous 998 offers to the same party may be valid to shift costs. Maritza Zavala v. Hyundai Motor America (Nos. D082747, D082940 Super. Ct. No. PSC1807879 California Court of Appeal Fourth Appellate District Division One Filed December 17, 2024)

Defendant served a California Code of Civil Procedures section 998 offer which contained two different options in exchange for a dismissal. The underlying lawsuit involved a claim by the plaintiff under the Song-Beverly Consumer Warranty Act alleging that the defendant failed to honor its warranty obligations for the vehicle that the plaintiff had purchased. Under the first option, defendant would make a payment which would be a “portion” which would be sent to the lender to pay off any loan on the vehicle, with the remainder going to the plaintiff. The second option, rather than setting forth any specific monetary amounts, tracked the statutory language contained within the Song-Beverly Consumer Warranty Act.

The defendant rejected the 998 offer. She prevailed at trial as well as prevailing on her motion for attorney’s fees.

The trial court disagreed with the defendant’s claim that the 998 offer cost-shifting mechanism was triggered. It deemed the offer not sufficiently specific because the amount of the incidental, consequential, and actual damages in the second option was not certain.

On appeal, the defendant argued that its 998 offer was sufficiently specific and certain to trigger section 998’s cost-shifting provision. The appellate court reversed. The court found that the defendant’s offer to compromise was valid and triggered cost-shifting under section 998 because it contained two independent options, the first of which was sufficiently specific and certain and in an amount greater than the jury’s eventual verdict. This appellate court division disagreed with the conclusion in Gorobets v. Jaguar 105 Cal. App.5th 913, which stated that simultaneous 998 offers to the same party were not effective. The Court of Appeal in this case instead reasoned that when faced with two simultaneous offers, a trial court can simply look at each offer separately to determine whether either of them exceeded the amount of the verdict.

• 2. (Dangerous Condition-Public Property) Summary judgment for a dangerous condition of public property liability under Government Code Section 835 was proper when Caltrans provided evidence that it had no notice of allegedly dangerous condition. Juraj Kabat v. Department of Transportation (No. G063082 Super. Ct. No. 30-2021 01214091 California Court of Appeal Fourth Appellate District Division Three Filed December 19, 2024)

Plaintiffs’ child was struck and killed by a motorist as she was riding her bicycle across a marked, non-signalized crosswalk. The plaintiffs sued the Department of Transportation and others claiming that the property was a dangerous condition under Government Code section 835, due to the failure to address issues including inadequate signage and no signal. The Department of Transportation sought summary judgment, asserting in part that it was entitled to a complete defense under a design immunity. The plaintiff countered, noting that the design immunity did not categorically preclude failure-to-warn claims. The trial court disagreed and granted summary judgment.

The appeals court affirmed noting that Government Code Section 835 requires showing that the public entity either created the dangerous condition or had notice of it. The Department of Transportation offered undisputed evidence that it had no notice of a purported dangerous condition. The Department of Transportation maintained a comprehensive and particularized computer database tracking the number and type of collisions on all highways, ramps, and intersections. A check of the database for ten-year timeframe for similar accidents in the onramp area resulted in no comparable collisions. Considering the voluminous amount of traffic passing the area, this evidence supported the Department of Transportation’s claim that it had no notice of an allegedly dangerous condition.

• 3. (Health Care) Hospitals have no duty under the UCL or CLRA to disclose fees for evaluation and management services (EMS) prior to treating emergency room patients. Taylor Capito v. San Jose Healthcare Systems, LP (No. S280018 Sixth Appellate District H049646 Santa Clara County Superior Court 20CV366981 Filed December 23, 2024)

Plaintiff filed a class action against the hospital challenging the evaluation and management services (EMS) fees for two emergency room visits. She did not dispute the hospital’s compliance with all relevant disclosure obligations, nor did she allege that the EMS fees were excessive or that she was charged for services not rendered. Instead, she claimed that the hospital had a duty to disclose the EMS fees in the chargemaster and provide notice of those fees before services were provided.

The hospitals failure to do so, the plaintiff argued, violated California’s Unfair Competition Law (UCL) and the Consumer Legal Remedies Act (CLRA). After the lower courts ruled in the hospitals favor, the California Supreme Court granted review to determine whether hospitals have a duty, beyond what is required by the relevant statutory and regulatory scheme, to notify emergency room patients that they will be charged EMS fees.

The California Supreme Court affirmed noting that state and federal regulators have imposed extensive chargemaster and price list obligations on hospitals to increase the transparency in hospital pricing to enable consumers to comparison shop for medical services. In addition, state and federal law have sought to ensure that emergency services cannot be based on a person’s insurance or economic status. The Legislature has specifically exempted emergency rooms from mandatory, specific disclosures of costs to uninsured patients. In reviewing the various statutory and regulatory schemes, the California Supreme Court determined that the plaintiff had not established unfairness under the UCL statute which includes any unlawful, unfair or fraudulent business act of practice. The California Supreme Court concluded that the plaintiff’s allegations did not establish the conduct of the hospital’s unlawful under the CLRA and therefore affirmed the judgment.

• 4. (Emergency Medicine Expert) Health & Safety Code Section 1799.110’s standards for emergency medical services applied in malpractice claim against physician, an on-call radiologist who remotely reviewed images for an ER patient on a “stat” basis. Charlie L v. Peyman Kangavari, M.D. (No. B327714 Los Angeles County Super. Ct. No. 21STCV15446 California Court of Appeal Second Appellate District Division Two Filed January 2, 2025)

Plaintiff, a three-year-old, had a bowel condition for which he had multiple corrective surgeries. He went to an ER for abdominal pain and the physician ordered stat orders for an X-ray and ultrasound of his abdomen. The images were sent for evaluation to an on-call radiologist working remotely. He issued a report based on his review of the images, concluding plaintiff’s bowel was unobstructed. Soon after returning home, plaintiff vomited and turned blue. His parents brought him back to the emergency department, non-responsive and not breathing. He ultimately underwent multiple surgeries to remove tissue and the majority of his small bowel due to lack of blood flow caused by a bowel obstruction. He filed a lawsuit against the on-call radiologist who moved for summary judgment, and both parties offered the opinions of their respective experts. The defendant asserted that the plaintiff’s expert did not meet the qualifications of Health & Safety Code Section 1799.110, which requires experts testifying in certain negligence cases to have specific and substantial professional experience in an emergency department. The defendant never deposed the expert, but plaintiff’s expert still filed a supplemental declaration attempting to establish that he had the requisite qualifications. The trial court granted the summary judgment for the defendant, holding that the Section 1799.110 applied to the malpractice claims and to the experts.

The appeals court reversed and remanded. While it agreed that Section 1799.110 would be served by applying it to expert witness testimony including physicians serving the emergency departments of general acute care hospital, it also deemed both parties’ experts’ testimonies inadmissible because they did not adhere to the heightened standards.

• 5. (Negligent Security) Negligence claim against defendant football stadium security lacked causation where the incident occurred too quickly for defendant to intervene. Brooke Stokes v. Forty Niners Stadium Management Co., LLC (No H050639 Santa Clara County Super. Ct. No. 19CV357748 California Court of Appeal Sixth Appellate District Filed January 10, 2025)

This matter involved a wrongful death case made on behalf of an individual who suffered fatal injuries after being attacked in a parking lot following a national league football game. The assailant was charged with a felony and he pleaded no contest to the assault by means of force likely to produce great bodily harm and he was sentence to one year in the county jail.

A lawsuit was filed alleging claims for negligence, premises liability, and loss of consortium against the management company and staffing services company. It was alleged that the defendants were negligent in failing to prevent the assault, and in failing to provide reasonably adequate security.

The management company filed a motion for summary judgment challenging the plaintiffs’ claims founded in negligence, asserting that there were no triable issues of fact and that the management company did not breach a duty of care or cause the decedent’s injury. The staffing company filed a separate motion for summary judgment, or, in the alternative for summary adjudication, similarly contending that it did not breach the duty of care and that any alleged breach was not the cause of injuries to the decedent. It also argued that there was no triable issue of fact that it owed a duty of care to prevent the unforeseen harm caused by the criminal acts of the assailant and that the staffing company could not be found liable for premises liability because it did not own, operate or control the parking lot outside the Stadium.

The trial court granted both defendants motions for summary judgment, and separate judgments were thereafter entered in favor of the management company and staffing company.

Plaintiffs appealed arguing that there were triable issues of material fact that both defendants owed a duty to the decedent, breached that duty, and their negligent acts and omissions in providing security to fans in the Stadium parking lot where a substantial factor in causing the harm to the decedent. The appeals court concluded that the record from the summary judgment motions presented no substantial, nonspeculative evidence from which a trier of fact could conclude that the acts or omissions of the defendants caused decedent’s injuries. Since the plaintiff could not establish causation or an essential element of their negligence and premises liability claim, the trial did not err in granting defendants’ motion for summary judgments. The defendant’s evidence that supported their motion showed that adequate security was provided that the injury did not occur because of a breach of duty; it happened quickly, with no chance of intervention. The evidence failed to show it was more probable than not that a casual connection existed between the defendants’ alleged breach of duty and the decedent’s injury.

• 6. (Assumption of Risk – CTE) The assumption of risk doctrine applied to a plaintiff injured by an inherent risk of the sport (head hits), irrespective of whether the specific injury itself (CTE) was inherent to the sport. Alana Gee v. National Collegiate Athletic Association (No. B327691 Los Angeles County Super. Ct. No. 20STCV43627 California Court of Appeal Second Appellate District Division Eight Filed January 10, 2025)

This lawsuit arose from the death of an individual who played football at a California College. He and others, who played college and/or professional football for many years were determined to have suffered Chronic Traumatic Encephalopathy (CTE), by the National Institutes of Health (NIH). The coroner in this case determined that the decedent’s death was due to combined toxic effects of alcohol and cocaine, as well as other cardiac conditions. The decedent’s brain was donated to the Boston University’s CTE Center for study where an expert in the field determined that he had Stage II CTE, which is now referred to as law level CTE.

The decedent’s spouse subsequently filed a wrongful death action against the National Collegiate Athletic Association (NCAA), contending that CTE was a substantial factor in her husband’s death, and the NCAA negligently failed to take reasonable steps which would have reduced his risk of contracting CTE. The plaintiff chose not to name the decedent’s college as a defendant. The NCAA asserted an assumption of risk defense. It also argued that, as an unincorporated association, it could not be held liable for the failure of its members to vote to enact safety regulations. The matter went to jury trial where the jury found the special verdict that the NCAA was not negligent.

The plaintiff appealed from that judgment contending that the trial court erred in finding that the assumption of risk doctrine applied and in refusing an instruction she proposed on the liability of the unincorporated association for the acts of its members. The appeals court found that the assumption of risk doctrine did apply, and any instructional error relating to the NCAA’s responsibility for the action or inaction of its members was harmless.

• 7. (Landlord Tenant) A commercial landlord consented to a month-to-month tenancy by accepting multiple months of rent following the expiration of a notice to terminate tendency. Laura Read Baca v. Yonghe Kuang (No. A171071 Alameda County Super. Ct. Nos. 23CV027202, 23AP054588 & 23AP060272 California Court of Appeal First Appellate District Division Five Filed January 13, 2025)

Defendant appealed from a trial court’s judgment and award of attorney fees against him in an unlawful detainer action. The plaintiff, a commercial landlord had issued a 30-day notice to terminate the defendant’s tenancy. Several days after the notice expired, the plaintiff tendered a rent check to the defendant, which she deposited that same day and never refunded. The next day, the defendant landlord filed an unlawful detainer action against the plaintiff, arguing that he was unlawfully holding over. While the action was pending, the plaintiff tendered payment of rent and common area maintenance charges to the plaintiff pursuant to invoices sent by the defendant through her management company for three additional months, which she deposited and never refunded. The trial court held that despite the plaintiff’s acceptance of these payments, she did not consent to the defendant’s continued possession based on the terms of their lease. In reaching this holding, the court concluded that Civil Code section 1945, which establishes a presumption of renewal whenever a landlord accepts rent from a tenant after the expiration of a lease did not apply.

The appeals court applying de novo review, found that section 1945 did apply because the plaintiff accepted rent from the defendant multiple times after his lease had expired. They further found that, in light of this presumption, that the plaintiff consented to a month-to-month tenancy based on the undisputed facts and the terms of the lease and therefore reversed the judgment.

• 8. (Federal Jurisdiction) A plaintiff’s amendment of complaint to remove federal-law claims divests of federal court of jurisdiction. Royal Canin U.S.A., Inc., v. Wullschleger et al. (Argued October 7, 2024-Decided January 15, 2025)

Plaintiff sued defendant in state court alleging that the defendant had engaged in deceptive marketing practices. Her original complaint asserted claims based on both federal and state law. Defendant removed the case to federal court based upon the federal claim, which gave rise to federal-question jurisdiction and also allowed the federal court to exercise supplemental jurisdiction over the plaintiff’s factually intertwined state claims. The plaintiff did not want the federal court to be where her case was to be resolved. She then amended her complaint, deleting every mention of federal law, and petitioned the District Court for a remand to state court. The District Court denied the plaintiff’s request, but the 9th Circuit Court reversed finding that without a federal-question, the court concluded, there was no possibility of supplemental jurisdiction over the Plaintiff’s state-law claims.

On appeal to the to the Supreme Court of the United States, the Supreme Court affirmed the 9th Circuit Court’s decision holding that when a plaintiff amends her complaint to delete federal-law claims that enabled removal to federal court, leaving only state law claims behind, the federal court loses supplemental jurisdiction over the state claims, and the case must be remanded to state court.

• 9. (MICRA) Wrongful death and medical malpractice claims were sufficiently separated and distinct to warrant separate non-economic damage caps under the Medical Injury Compensation Reform Act. The Superior Court of Orange County v. Los Alamitos Medical Center (No. G064257 Super. Ct. No.30-2023-01360050 California Court of Appeal Fourth Appellate District Division Three Filed January 29, 2025)

This matter involved a case of a medical malpractice and wrongful death brought by the heir of the deceased and involved a dispute over recent amendments to the cap on noneconomic damages under Civil Code Section 3333.2 under the Medical Injury Compensation Reform Act of 1975 (MICRA) and to the availability of noneconomic damages in survival actions that are Code of Civil Procedure Section 377.34. The question was whether or not the plaintiff was able to recover noneconomic damages under one or two MICRA caps. In this petition, plaintiff sought a writ of prohibition or mandate directing the trial court to vacate its order granting the defendant medical center’s motion to strike portions of the plaintiff’s complaint that alleged her entitlement to seek two MICRA caps. The appeals court concluded that the plaintiff’s claims were subject to two MICRA caps. Accordingly, the court granted the petition and directed the court to vacate its order and enter a new and different order denying the motion. The appeals court noted that under Atkins v. Strayhorn and under Civil Code 3333.2, a husband and wife plaintiffs suing in one action could each recover MICRA cap for their separate claims, the husband’s action for negligence and the wife’s action for loss of consortium. Here, the appeals court reasoned that a wrongful death claim and a survival claim (such as medical malpractice) were analogously separate and distinct to warrant separate caps. Further, the court noted that these claims included different recoverable damages and could have been tried separately.

Should you have any questions concerning these court decisions or desire a copy of any of them, please do not hesitate to contact our office.