Archive for January, 2010

Massey vs. Mercy Medical

massey v. mercy medical

Attached is the recent case decision rendered by the California Court of Appeal, Third Appellate District (Shasta) entitled Carl R. Massey v. Mercy Medical Center Redding et. al. (2009) which stands for the proposition that certain medical negligence actions involving nursing care do not require expert testimony.

The Court of Appeal in Massey ruled that expert opinion testimony was not required for a jury to resolve the question of whether the nurse’s conduct had fallen short of the reasonable standard of care, the panel reversed the trial court’s order granting the defense’s motion for nonsuit.

See attached for entire case summary.


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Judgments – D.R.S. Trading Company, Inc. v. Vaughn Barnes, DJDAR 17859 (December 23, 2009)

This matter involved an issue as to whether or not a court has power to reconsider a decision under Code of Civil Procedure Section 1008, after a judgment has been entered.  The appeals court affirmed the trial court in finding that the existence of a judgment does not preclude a court from reconsideration of a motion it is explicitly empowered to consider after judgment has been rendered.  Here, the court was asked to consider a motion pursuant to California Code of Civil Procedure Section 473 (sub. b) with regard to relief from a judgment if it was the result of a mistake.  The appeals court found that although California Code of Civil Procedure Section 1008 prohibited reconsideration of the merits of the entered judgment, it did not bar reconsideration after entry of judgment, which was authorized under section 473 (sub. b).

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Expert Testimony – Carl R Massey v. Mercy Medical Center Redding, 2009 DJDAR 17759 (December 22, 2009)

This action for negligence against a nurse and, vicariously, the hospital that employed the nurse involved a post-operative patient who sustained injury after falling from a walker.  The nurse had placed plaintiff on the walker and then left him unattended.

The appeals court concluded that the question of the nurse’s alleged negligence for the fall posed a question of common knowledge and therefore did not require expert opinion testimony.  Consequently, the appeals court reversed that part of the trial court’s judgment that concluded otherwise and that dismissed the negligence action after plaintiff made his opening statement.

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Unfair Competition – Joseph Birdsong v. Apple, Inc., 2009 DJDAR 18087 (December 30, 2009)

Plaintiff bought two of the defendant’s devices which came with headphones that produced sounds as loud as 115 decibels.  The defendant included a warning that with each device regarding permanent hearing loss occurrence if the headphones were used at a high volume.  Plaintiff filed an action against the defendant claiming that a defect existed in the device because the product posed an unreasonable risk of hearing loss to its users.  The U.S. District Court dismissed the claims for various reasons, among them that they lack standing to assert a claim under California’s Unfair Competition Law (UCL).

The U.S. Court of Appeals – 9th Circuit affirmed.  To have standing under the UCL, plaintiff must established that it has suffered an injury in fact and lost money or property as a result of the Unfair Competition.  Here, the plaintiff did not claim that it suffered or imminently would suffer hearing loss from use of  the device.  At most, plaintiff alleged that some devices have the capability of producing unsafe volumes of sound and that consumers may listen to these unsafe sound levels.  This court found that this allegation was insufficient to satisfy the injury element under the UCL.  Further this court found no merit in a hypothetical allegation of economic harm should the plaintiff argue that the risk of hearing loss reduce the value of its device.  Thus, the district court did not err in dismissing the plaintiff’s complaint.

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Unfair Competition – Manuela Zermeno v. Precis, Inc., DJDAR 17875 (December 23, 2009)

Plaintiffs appealed from the judgment entered against them in their unfair competition action after the trial court found that the pre-trial settlement of their damaged claims meant they no longer had standing to sue under the new standing requirements of Proposition 64.  On November 2, 2004, the voters approved Proposition 64, which amended the unfair competition law to state that a person has standing to sue for unfair competition only if he “has suffered injury in fact and has lost money or property as a result of [such] unfair competition” . See Business and Professions Code  Sections 17203 and 17204. 

The appeals court held that the changed standing rule was not intended to apply the cases pending when it took effect where a plaintiff had suffered actual injuries required by the new law, but settled that portion of its action before Proposition 64 took effect.  Therefore, the trial court was an error and the appeals court reversed.

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Judgments – Timothy J. Walton v. Scott Mueller, 2009 DJDAR 17519 (December 15, 2009)

A default judgment was entered against the defendant wherein, the judgment later became final. 

Some two years later, defendant began negotiations with the plaintiff, the judgment creditor to satisfy the judgment.  Although defendant contended that they reached an agreement to fully satisfy the judgment by defendant paying the defendant sum certain, plaintiff disputed that such a contract was ever formed.  Without actually having paid anything, defendant filed a motion to enforce the alleged settlement reportedly under Code of Civil Procedure Section 664.6, which, under certain conditions, provides for entry of judgment in conformance with a settlement in pending litigation.

The trial court denied the motion, finding that no settlement agreement was ever reached.  Regardless of whether an agreement was reached, the appeals court concluded that section 664.6 does not apply after a judgment has become final in an ordinary civil action because at that point, litigation is no longer pending as expressly contemplated by the statute.  The appeals court affirmed the trial courts denial of the motion.

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ADA – Tannislado Alvarado v. Cajun Operating Company, 2009 DJDAR 17324 (December 11, 2009)

Plaintiff filed a retaliation claim pursuant to the Americans with Disabilities Act (ADA) alleging that the defendant retaliated against him for complaining that his manager had discriminated against him based on his disability.

The plaintiff challenged the lower court’s grant of the defendant’s motion in limine barring the plaintiff from seeking punitive and compensatory damages from his ADA retaliation claim.  Plaintiff also contended that the lower court erred in holding that, because ADA retaliation claims are limited to equitable relief, plaintiff was not entitled to a jury trial on his retaliation claim.  The appeals court agreed with the lower court’s resolution of these issues and affirmed the judgment.  The appeals court found that the ADA retaliation provision is not referenced under the discrimination statute and therefore, punitive and compensatory damages were not available.

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Medi-Cal License – Golden Drugs Co., Inc., v. David Maxwell-Jolly, 2009 DJDAR 17169 (December 9, 2009)

Plaintiff, a pharmacy, appealed from a judgment denying its petition for writ of mandamus (California Code of Civil Procedure Section 1085), which challenged the termination of the plaintiff’s Medi-Cal provisional provider license by the Department of Health Care Services.  The pharmacy disputed that it allowed a pharmacy technician to dispense medication without direct supervision and control of a pharmacist.  The plaintiff contended that the court should reconsider the evidence, as it was insufficient to support the judgment.     The plaintiff further claimed that the department’s actions were arbitrary, capricious and denied the plaintiff due process.  The appeals court affirmed the judgment. 

In so ruling, the appeals court found that the trial court’s review of the department’s action is limited to determine whether an action is arbitrary, capricious, entirely lacking in evidentiary, or contrary to law.  Under the applicable California Business and Professions Code, a pharmacy technician must not dispense medication in the absence of a pharmacist’s supervision dispenses.  There was evidentiary support vis a vis declarations of an auditor, who saw a technician fill prescriptions while the pharmacist was busy.  Thus, the department’s finding that the plaintiff violated the applicable code section and its decision to terminate the provisional provider status was no devoid of evidentiary support.

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Medical Expenses-Ruben Lopez v. Daimler Chrysler Corporation, 2009 DJDAR 17060 (December 4, 2009)

 Plaintiff, who suffered permanent brain damage in an automobile accident moved to reduce the lien for medical expenses sought by the California Department of Health Care Services arguing that it sought to collect more that the portion of the settlement that constituted reimbursement for past medical expenses.  Finding that the department failed to provide the evidence to refute the plaintiff’s evidence of damages, the trial court found that the department was entitled to a percentage of the total lien amount, reduced for its statutory share of costs.  The department argued on appeal that the trial court erred by placing the burden of proof on the department to justify its evaluation of the lien.  Although the trial court asked the department to submit its reasons for valuing the lien, the department did not do so. Thus, the trial court acted within its authority to determine that the department’s lien based on the evidence submitted by the plaintiff alone in support of evaluation.

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What Is Social Networking?

Social Networking

…perhaps you’ve heard of it before, but are not quite sure what it means.

Social networking is the grouping of individuals into specific groups, like small rural communities or a neighborhood subdivision, or in my case, legal and insurance professionals. Although social networking is possible in person, especially in the workplace, it is becoming most popular online. This is because unlike most workplaces, the internet is filled with millions of individuals who are looking to meet other people, to gather and share first-hand information and experiences about any number of topics. . . what works in your law practice, legal updates, verdicts, mediation success stories, Medicare updates and even golf!!

When it comes to online social networking, websites are commonly used ( These websites are known as social sites. Social networking websites function like an online community of internet users. Depending on the website, many of these online community members share common interests such as business networking and education. Once you are granted access to a social networking website you can begin to socialize. This socialization may include reading the profile pages of other members and possibly even contacting them.

The relationships that you can make are just one of the many benefits to social networking online. Not only will you make new relationships, but you just might learn a thing or two about new cultures or new mediation paradigms and learning is always a good thing.

After learning about social networking and developing a comfort level, I hope you will consider joining my social networking site (Blog)

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