Archive for October, 2010

Defense Verdict in Vukoye v. Huntington Eldercare, Inc.

            Sean Cowdrey, a partner at Beach | Whitman | Cowdrey, LLP, in Oxnard, California, obtained a defense verdict on October 18, 2010, in an elder abuse lawsuit brought by Stephen Garcia and William Artigliere of The Garcia Law Firm against an assisted living facility and its owners for a medication error.  Plaintiffs’ counsel asked the Orange County Superior Court jury to award approximately $500,000 in compensatory damages and also sought punitive damages and attorney’s fees.  The jury deliberated for less than one day after a two week trial and concluded that the defendants were not liable for elder abuse by neglect.

            In Vukoye v. Huntington Eldercare, Inc., the plaintiffs contended that defendants should not have admitted or retained the resident in their assisted living facility since her acuity level was too high and she required skilled nursing care.  Furthermore, plaintiffs presented evidence that the facility gave the resident over four times the prescribed dosage of Remeron, an anti-depressant, an error allegedly caused by the administrator’s reckless neglect in failing to recognize the dosage error.  In addition, plaintiffs argued that the medication administration documentation had been altered by the administrator to make it appear that the resident had received fewer dosages of the medication after the error was discovered.

            The defense faced an uphill battle at trial.  The defendants had been originally represented by an attorney who had no healthcare or elder abuse litigation experience and who failed to designate experts, did not conduct any discovery, and then withdrew from the case.  When Beach | Whitman | Cowdrey substituted into the case on the eve of trial, the court refused to re-open discovery or to allow the defense to designate experts.

            Nevertheless, at trial Mr. Cowdrey presented evidence that the administrator and facility staff went the “extra mile” for the resident and provided a high quality, personalized environment in the last days of her life.  He elicited testimony from the Department of Social Services licensing representative that the medication sheets that had been altered were not required documents, did not violate any regulations, and only substantial compliance (not strict compliance) with regulations were what were necessary in operating a long-term care facility.  The jury found no liability and did not have to reach the issue of damages.


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The Holidays come early at

ADJ Mediation Services

In appreciation for all the support, encouragement and business I have received from so many of you, I am pleased to offer you a FREE MEDIATION!

To redeem this offer, simply reply to this email or call me or Kimberly at (818) 225-7756.


This offer is good for one (1) 3-hour mediation session and must be redeemed no later than January 31, 2011.

When booking your mediation, if you believe that three hours is not enough time, no worries…you can book a full day at half price!

Only one FREE MEDIATION is allowed for each law firm and/or insurance company. 

The FREE MEDIATION will take place in our Woodland Hills office unless other arrangements have been made.


Any full-day mediation booked and convened for the remainder of 2010 will be discounted to our half-day fee!

I hope you are able to take advantage of this offer and book your FREE MEDIATION with us soon!


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Plaintiff fails to prove that contractors proximately caused his infectious fungal disease by stockpiling excess dirt on vacant lot near workplace.  Rudy Miranda et al. V. Bomel Construction Co., Inc. et al., (No. G042073 California Courts of Appeal, Fourth Appellate District, Division Three, August 30, 2010).    

In affirming the trial courts granting of summary judgment, the appeals court found that the plaintiffs’ failed to prove within reasonable medical probability that the plaintiff suffered injuries related to a fungus that caused Avalley fever@.

A plaintiff alleging negligence must prove that a legal duty to use care existed and a breach of that duty, which was a proximate cause of the injury.  In a personal injury action, causation must be proven within a reasonable medical probability based on expert testimony.  Mere possibility alone is insufficient.  Here, defendants’= experts explained that the fungus that caused Avalley fever@ was endemic to large parts of California and could travel in the wind.  Thus, they showed that there was no reasonable medical probability that dust from the vacant lot, rather than air from another location, contained the spores that caused the plaintiff=s injuries.  Also, plaintiff=s experts did not account for the fact that other sources of the fungus spore existed.  Thus, plaintiff failed to prove causation, and his negligence claim failed.

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Enforcement of Settlements

Court lacks authority to enforce settlement under Code of Civil Procedure Section 664.6 where all parties did not give personal consent to settle.  David Critzer et al. v, Jerry Enos et al., (No. H033913 California Courts of Appeal, August 30, 2010).

In this matter, a lawsuit between plaintiffs and defendant Homeowners Association (HOA) resolved but without agreement on the terms of a formal settlement agreement. The HOA moved to try to enforce the settlement pursuant to California Code of Civil Procedure Section 664.6.  The trial court entered an order requiring the parties to exchange terms for an agreement, and opined that it would choose an appropriate agreement if the parties failed to agree.  When the parties were unable to do so, the court entered an order enforcing the settlement. The plaintiff appealed the court’s decision to enforce the settlement pursuant to terms submitted by the HOA. Plaintiff argued that the trial court exceeded its authority under Section 664.6.

The appeals court reversed finding that the trial court lacked authority under Section 664.6 to enforce any settlement.  The trial court may not enforce the settlement unless the litigants themselves stipulate in writing or orally before the court that they have settled the case.   Given that not all of the parties in this matter gave their personal consent to the settlement, the trial court was precluded from granting a motion to enforce the settlement under Section 664.6.

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        Court errs in denying Anti-SLAPP motion to strike claims alleging that defendant’s pamphlets, which contained medication information, were confusing.  Evelyn Rivera et al., v. First Databank, Inc., (No.G042377 California Courts of Appeal, Fourth Appellate District, Division Three, August 17, 2010).


Defendant published medication information and pamphlets for thousands of drugs approved by the FDA.  The pamphlets synthesized information in drug manufacturers’ patient medication guides and package inserts into a document that consumers could understand.  Plaintiff filled a prescription for medication at a pharmacy which allegedly used the information provided by the defendant.  Shortly after using the medication plaintiff committed suicide.  Members of his family sued the defendant for negligence and breach of contract, claiming that the suicide warning in the drug information was confusing.  The defendant filed an Anti-SLAPP motion arguing that the information was protected speech.  The trial court denied the motion ruling that the gravamen of the plaintiff’s claims was wrongful death which did not arise from free speech in relation to a public issue.  The appeals court reversed and remanded the matter back to the trial court. 


Pursuant to California Code of Civil Procedure Section 425.16, a party may move to strike in a cause of action against it arising from an act in furtherance of free speech rights in connection with a public issue.  In analyzing the above statute’s application, the courts first examine whether a challenged action is one arising from protected activity.  If so, the plaintiff must then show a likelihood of prevailing on the claim.  Here, the plaintiff based a complaint on the confusing language of the drug information.  This constituted publication which is an exercise of free speech and a protected activity.  Also, plaintiff failed to show that the defendant owed them a duty.  Next, they failed to show that they would prevail on its claim.  As such, this court held that the trial court erred in denying the defendant’s Anti-SLAPP motion.

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Wrongful death claimants are bound by arbitration agreements entered into by decedent and health care provider.  Alejandra Ruiz et al., v. Anatol Podolsky, (No. S175204 California Supreme Court, August 23, 2010).

In this case, the court grappled with the issue of when a person seeking medical care contracts with a healthcare provider to resolve all medical malpractice claims through arbitration, does that agreement apply to the resolution of wrongful death claims, when the claimants are not themselves signatory to the arbitration agreement?  In this case, the appeals court held that all wrongful death claimants are bound by arbitration agreements entered into pursuant to California Code of Civil Procedure Section 1295, at least when, as in this matter, the language of the agreement manifests an intent to bind these claimants.

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Negligent Infliction of Emotional Distress

Claim of medical expertise is insufficient to meet element for negligent infliction of emotional distress without factual showing of alleged expertise.  Jessica Morton et al., v. Thousand Oaks Surgical Hospital, (No. B212585 California Courts of Appeal, Second Appellate District, Division Six, August 23, 2010).

In this action for negligent and infliction of emotional distress arising from a medical malpractice action, plaintiffs sought to expand the scope of liability which the California Supreme Court sought to limit in Thing v. La Chusa (1989) 48 Cal. 3d 644.  Plaintiffs= claimed at the time of their mother’s post-operative treatment they were experienced in the medical field and understood and appreciated the dangers placed by their mother in the event remedial action was not taken.  The appeals court agreed that the trial court in holding this allegation was insufficient to establish that the plaintiffs knew and appreciated the medical circumstances affecting their mother.  Their complaint failed to satisfy the second prong of Thing v. La Chusa’s three-prong test liability based on the theory of negligent of emotional distress.

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Collateral Source

Collateral source rule precludes reduction of amount of medical expenses plaintiff incurred for rendered services to cash amount accepted by plaintiff=s medical providers.  Michael King v. Carol Willmett, (No. C059236 California Courts of Appeal, Third Appellate District, Sacramento, August 9, 2010).

In this case, the court considered whether in a negligence action against a non-public defendant the reduction of a plaintiff=s award of past medical expense damages to the dollar amount ultimately paid by the plaintiff=s private health insurance to his healthcare providers was appropriate under the collateral source rule.  In light of the public policy conclusion expressed by California State Court and the Legislature’s enactment of specific statutes covered in the operation of the collateral source rule in limited types of cases, it conclude that the reduction was inappropriate, therefore the trial court erred in reducing the award in this matter.  (We note that the California Supreme Court has granted review in the recent case, Howell v. Hamilton Meets and Provision, Inc. (2009) 179 Cal. App. 4th 686 and therefore there is likely to be a California Supreme Court decision in this area.)

This case is worthy of special comment as it deals with one of the most important issues pending before the California Supreme Court.    Interestingly, the opinion was issued by the appeals court judge who has been selected to become the presiding judge of the California Supreme Court.     Now the sitting as the chief justice, former appellate court justice Cantil-Sakauye wrote the opinion in Michael King, v. Carol Wilmett, No. C059236, Court of Appeals of California, Third District, Sacramento, Filed August 9, 2010 (King) which involves the precise issue that is pending before the California Supreme Court in Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686 (Howell).      The issue is whether a personal injury plaintiff’s recoverable medical expense damages can include not only what she and her health insurance company paid for her medical services, but also larger amounts “billed” by her healthcare providers, even if the providers agreed to accept the paid amounts as payment in full and neither plaintiff nor her insurer will ever pay any larger amounts.  

The Supreme Court’s decision could affect every personal injury action in California where medical specials are at issue

Justice Cantil-Sakauye’s opinion in King embraces the position advocated by the plaintiffs’ bar, that is, the plaintiff can recover more than the actual amount that the healthcare actually gets paid for its services.  Note, Chief Justice Cantil-Sakauye will not be able to participate in the handling of this decision once the court issues its opinion in Howell. 

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Self-Storage Act

Under California Self-Service Storage Facility Act, storage facility may continue to charge late fees to renter whose access to unit has been terminated.  Araceli Vitug v. Alameda Point Storage, Inc., (No. A124999,  California Courts of Appeal, First Appellate District, Division Five, August 10, 2010).

In this case, the Appeals Court addressed the issue of whether the California Self-Service Storage Facility Act (Business and Professions Code Section 21700 et seq.) prohibits a self-service storage facility from continuing to charge rent and late fees to the renter of a storage unit after the facility has terminated the renter’s right to access the unit due to non-payment of rent.  In this case, plaintiff bought an action against the defendant self-service storage facility under the Unfair Business Practices Act and the Consumer Legal Remedies Act (hereinafter, collectively, “the Acts”) based upon allegations that the defendant violated the Acts by continuing to charge rent and late fees after terminating the right to use her storage unit.  The trial court granted the defendant=s motion for summary adjudication concluding the Acts, did not prohibit defendant from charging additional rent and late fees.  The appeals court agreed and affirmed.  The court did not decide whether the defendant had the right to charge the additional rent and late fees under the lease agreement because the plaintiff had forfeited that issue.

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Arbitration provision requiring waiver of unwaivable statutory right under California Legal Remedies Act is unenforceable as against public policy.  Amberlee Fisher v. DCH Temecula Imports LLC, (No. E047802 California Courts of Appeal, Fourth Appellate District, August 13, 2010).

The trial court found that an arbitration clause in a retail installment sales contract for the sale of a car to the plaintiff, which included a waiver of right to bring a class-action lawsuit, was unenforceable.  The plaintiff presented several theories in opposition to the enforcement to the arbitration clause, including that the arbitration required her to waive a statutory right to bring a class-action lawsuit under the California Legal Remedies Act (CLRA), and that the arbitration agreement was then both procedurally and substantively unconscionable.  The appeals court upheld the trial court=s denial of the petition to compel arbitration.

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