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California Law Update – February 2022

By February 28, 2022September 5th, 2022Law Updates
  1. (Medical Liability) The trial court was correct in declining to give an instruction on abandonment of patient because evidence showed that defendant doctor was not in charge of patient’s care. Ronald Zannini v. Mark A. Liker, M.D. (No. B302404 Los Angeles County Super. Ct. No. BC614661 California Court of Appeal Second Appellate District Division Eight Filed January 31, 2022)
  2. (Government Claims Act) Notice of rejection of claim for damages is defective and does not comply with Government Code Section 913(b) requirements if it does not include attorney advisement. Treasure Andrews v. Metropolitan Transit System (No. D077550 Super. Ct. No. 37-2018-00033322-CU-PA-CTL California Court of Appeal Fourth Appellate District Division One Filed January 31, 2022)
  3. (Government Contract) A public agency was not liable for attorney’s fees because the indemnification contract was void. San Luis Obispo Local Agency Formation Commission v. Central Coast Development Company (2d Civ. No. B304144 Super. Ct. No. CV130383 San Luis Obispo County California Courts of Appeal Second Appellate District Division Six Filed February 3, 2022)
  4. (Five Year Rule) A trial court properly dismissed plaintiff’s case because an administrative rule extending the statute of limitations did not trigger a statute to extend the deadline an additional six months. Mary Ables v. A. Ghazale Brothers, Inc. (No. F082670 Super. Ct. No. BCV-15-100587 California Court of Appeal Fifth Appellate District Filed February 3, 2022)
  5. (Recreational Use Immunity) A property owner was not liable for plaintiff’s injury when plaintiff, who was jogging for recreational purposes, was forced into the bicycle lane to avoid a homeless encampment on the owner’s property. Shanna Rucker v. Wincal, LLC (No. B307964 Los Angeles County Super. Ct. No. BC722435 California Court of Appeal Second Appellate District Division Five Filed February 4, 2022)
  6. (Expert Testimony) Although harmless in this case, prohibiting cross-examination of expert witness regarding published standards established as generally accepted in the scientific community during the expert’s deposition was error. Debra Paige v. Safeway, Inc. (No. A159731 Sonoma County Super. Ct. No. SCV-262580 California Court of Appeal first Appellate District Division Three Filed February 10, 2022)
  7. (COVID-19/Federal Removal) Merely complying with federal COVID-19 regulations was insufficient to bring a nursing home under the federal officer removal statute. Jackie Saldana; Celia Saldana; Ricardo Saldana, Jr.; Maria Saldana v. Glenhaven Healthcare LLC (No. 20-56194 D.C. No. 2:20-cv-05631-FMO- MAA United States Court of Appeals Ninth Circuit Filed February 22, 2022)
  8. (Anti-SLAPP) Legal counsel regarding prospective litigation and obligations under a fee agreement with a prior attorney were protected activity under the anti-SLAPP statute. Richard Pech v. Stephen M. Doniger (No. B309781 Los Angeles County Super. Ct. No. 20STCV18681 California Court of Appeal Second Appellate District Division Five Filed February 18, 2022)
  9. (MICRA) Physician assistants who practice under a licensed physician but receive minimal or no supervision may still fall under the Medical Injury Compensation Reform Act’s noneconomic damages cap. Marisol Lopez v. Glenn Ledesma (No. S262487 Second Appellate District, Division Two B284452 Los Angeles County Superior Court BC519180 Filed: February 24,2022 (reposting corrected version))

The above referenced court opinions have come to our attention during last month. Please find below a brief summary of these opinions for your consideration.

  1. (Medical Liability) The trial court was correct in declining to give an instruction on abandonment of patient because evidence showed that defendant doctor was not in charge of patient’s care. Ronald Zannini v. Mark A. Liker, M.D. (No. B302404 Los Angeles County Super. Ct. No. BC614661 California Court of Appeal Second Appellate District Division Eight Filed January 31, 2022)

Plaintiff consulted with defendant physician who diagnosed the plaintiff with cervical myelopathy and recommended surgery to relieve pressure on the cervical spine. After the surgery, plaintiff developed a blood clot which required emergency surgery. Prior to this surgery, defendant consulted with another emergency room physician managing the plaintiff’s care and reminded plaintiff’s spouse that he would not be available to do emergency surgery if it was needed, but that his associate and on-call physician would be available. Defendant also made the on-call physician aware of the plaintiff’s circumstances and remained available to discuss with the on-call physician possible diagnoses and treatment. When the defendant left the premises, there was a plan in place for the on-call physician. Plaintiff underwent the emergency surgery and, despite the surgery, ended up partially quadriplegic. Plaintiff filed a medical malpractice complaint against the defendant. At trial, the plaintiff asked the court to instruct the jury with California Approved Civil Instruction (CACI) 509 (abandonment of patient), which the trial court declined. The trial court entered judgment in favor of the defendant. Plaintiff appealed arguing the trial court erred by declining to instruct the jury with CACI 509.

The appeals court affirmed the trial court’s ruling. Patient abandonment as a theory warrants CACI 509 only where there is evidence that the physician has accepted responsibility for the patient and then has withdrawn without giving enough notice to ensure timely continuity of treatment. Here, the court found that the trial court was correct in declining to give the instruction because there was no evidence of abandonment. The court reasoned that the evidence did not support the notion that the defendant took over the plaintiff’s treatment and then withdrew without sufficient notice.

  1. (Government Claims Act) Notice of rejection of claim for damages is defective and does not comply with Government Code Section 913(b) requirements if it does not include attorney advisement. Treasure Andrews v. Metropolitan Transit System (No. D077550 Super. Ct. No. 37-2018-00033322-CU-PA-CTL California Court of Appeal Fourth Appellate District Division One Filed January 31, 2022)

Plaintiff sued defendant public agency after she was injured on public bus. The defendant public agency moved for summary judgment on the ground that plaintiff’s complaint was barred by the statute of limitations because plaintiff filed suit more than six months after the public agency mailed a notice of rejection of plaintiff’s claim for damages under California Government Code section 945.6, subd. (a)(1). Plaintiff opposed, arguing among other things that the public agency notice of rejection was defective because it did not include the full warning required by statute (see Government Code section 913, subd. (b)) and thus the two-year statute of limitations therefore applied (see Government Code section 954.6, subd. (a)(2)). The trial court found the plaintiff’s complaint was untimely, granted the motion, and entered judgment against the plaintiff.

On appeal, plaintiff again contended the notice of rejection was defective. The appeals court agreed and reversed the trial court. It noted that section 913, subdivision (b) requires a public agency to include a warning in its notice of rejection in “substantially the following form” as set forth in the statute. The notice of the rejection did not comply with the statute and was therefore insufficient to trigger the six-month statute of limitations in section 945.6, subdivision (a)(1). Instead, plaintiff had two years from the accrual of her cause of action to file suit.

  1. (Government Contract) A public agency was not liable for attorney’s fees because the indemnification contract was void. San Luis Obispo Local Agency Formation Commission v. Central Coast Development Company (2d Civ. No. B304144 Super. Ct. No. CV130383 San Luis Obispo County California Courts of Appeal Second Appellate District Division Six Filed February 3, 2022)

In this matter, a development company claimed, it was entitled to its attorney fees under the contract with a public agency. The court found that a contract with a public agency that exceeded the agency’s statutory quality with regard to an agreement to award attorney fees to the prevailing party would not support an award of attorney’s fees pursuant to statute. Here, the public agency was not liable for attorney’s fees based upon California Civil Code section 1717(a). The court reasoned that the public agency was not authorized to make the agreement with the attorney’s fees provision, and therefore the agreement was void. As a result, the public agency could neither enforce nor be liable under the contract for attorney’s fees.

  1. (Five Year Rule) A trial court properly dismissed plaintiff’s case because an administrative rule extending the statute of limitations did not trigger a statute to extend the deadline an additional six months. Mary Ables v. A. Ghazale Brothers, Inc. (No. F082670 Super. Ct. No. BCV-15-100587 California Court of Appeal Fifth Appellate District Filed February 3, 2022)

Plaintiff appealed from a trial court’s order dismissing their action for failure to bring the action to trial within the period required by Code of Civil Procedure, section 583.310. This section requires an action to be brought to trial within five years after the action is commenced against the defendant. Plaintiff filed a complaint against the respondents in July of 2015. In November of 2019, plaintiff filed an ex parte application requesting the trial be continued for at least six months. The trial court granted the plaintiff’s request and continued the trial to March of 2021. In February of 2021, defendant moved to dismiss the case for failure to bring the action to trial within five years. The trial court granted the motion to dismiss the case.

In March of 2020, the Judicial Council of California enacted emergency rules due to the COVID-19 pandemic. Emergency Rule 10(a) provided notwithstanding any other law, including Code of Civil Procedures section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total of five years and six months. The March 2021 trial date, however, fell five years and seven months after the action was commenced.

In the trial court, and now on appeal, plaintiff asserted that section 583.350 applied. This section provides that, if the time within which an action must be brought to trial is tolled or otherwise extended pursuant to statute, the action shall not be dismissed if the action is brought to trial within six months after the end of the period of tolling or extension. The appeals court concluded that the section did not apply in this case. The appeals court found that section 583.350 specifically stated extended pursuant to underlying statute. The Judicial Council of California enacted an emergency rule and not a statute, and therefore, the section which plaintiff relied upon did not apply.

  1. (Non-disparagement) A mediation agreement’s non-disparagement clause did not prevent a party from bringing a later lawsuit arising from same alleged harassment. Curtis Olson v. Jane Doe (No. S258498 Second Appellate District, Division Eight No. B286105 Los Angeles County Superior Court No. SC126806 Filed January 13, 2022)

Plaintiff and defendant were involved in a temporary restraining order proceeding involving harassment. The parties went to a court ordered mediation wherein, the parties agreed not to contact or communicate with one another, as well as to not disparage one another.

The question presented before the California Supreme Court was whether the non-disparagement clause in the parties’ mediation agreement potentially applied to and thereby limited the defendant’s ability to bring a subsequent unlimited civil lawsuit against the plaintiff seeking damages. The defendant later filed such a lawsuit and the plaintiff cross-complained for breach of contract and specific performance, arguing that the
defendant’s lawsuit violated the non-disparagement clause, and the plaintiff moved to this new complaint under the anti-SLAPP statute.

The California Supreme Court held that the mediation agreement as a whole and the specific context in which it was reached, an abbreviated California Code of Civil Procedure Section 527.6 proceeding, preclude the plaintiff’s broad reading of the non-disparagement clause. Accordingly, plaintiff failed to show the requisite minimal merit on the critical element of his breach of contract claim that is defendant’s obligation under the agreement to refrain from making disparaging statements in litigation and thus cannot defeat the defendant’s anti-SLAPP motion.

  1. (Recreational Use Immunity) A property owner was not liable for plaintiff’s injury when plaintiff, who was jogging for recreational purposes, was forced into the bicycle lane to avoid a homeless encampment on the owner’s property. Shanna Rucker v. Wincal, LLC (No. B307964 Los Angeles County Super. Ct. No. BC722435 California Court of Appeal Second Appellate District Division Five Filed February 4, 2022)

After slipping and falling in a crosswalk at defendant’s grocery store parking lot, which was wet due to rain, Plaintiff sued the defendant grocery store for negligence and premises liability. She asserted that the defendant failed to exercise due care in the manner it restriped the crosswalk several weeks before her fall by not adopting measures that would have made the crosswalk more slip resistant. The jury returned a defense verdict for the defendant grocery store.

On appeal, plaintiff argues the trial court erroneously prohibited her from cross-examining defendant’s liability expert about standards promulgated by the American Society of Testing and Materials (ASTM) with respect to safe walking surfaces. Plaintiff contended that Evidence Code section 721, subdivision (b)(3) makes clear that an adverse expert may be cross-examined about a publication established as reliable authority, such as the ASTM standards, regardless of the expert’s consideration or reliance on the publication in forming his or her opinions. The appeals court concluded that the trial court erroneously prohibited the plaintiff from using the ASTM standard during her cross-examination of defendant’s expert based on the expert’s lack of consideration or reliance on it. The court found, however, that the error was harmless and affirmed the judgment as there was sufficient basis for the jury to find for the defense.

  1. (COVID-19/Federal Removal) Merely complying with federal COVID-19 regulations was insufficient to bring a nursing home under the federal officer removal statute. Jackie Saldana; Celia Saldana; Ricardo Saldana, Jr.; Maria Saldana v. Glenhaven Healthcare LLC (No. 20-56194 D.C. No. 2:20-cv-05631-FMO- MAA United States Court of Appeals Ninth Circuit Filed February 22, 2022)

This matter involved a claim that the defendant nursing home failed to adequately protect a patient from the COVID-19 virus. The complaint alleged state law causes of action including elder abuse, willful misconduct, custodial negligence, and wrongful death. The defendant nursing home removed the case to the United States District Court, and the plaintiff moved to remand the case back to state court. The district court found that it did not have subject matter jurisdiction to hear the case and granted the plaintiff’s motion to remand. The defendant nursing home appealed arguing that the district court had three independent grounds for federal jurisdiction: federal officer removal, complete preemption of state law, and the presence of an imbedded federal question. The appeals court agreed with the district court and affirmed. The bases for the defendant nursing homes removal was that federal officer removal statute granted jurisdiction because the nursing home was conscripted by the federal government to join in the fight against COVID-19 through detailed and specific mandatory directives.

Under 28 U.S.C. Section 1442(a)(1), the federal officer removal statute, an action in state court may be removed to federal court when a defendant can establish that: (a) it is a person within the meaning of the statute;
(b) it took actions pursuant to a federal officer’s directions and those actions have a causal nexus with plaintiff’s claims; and (c) it can assert a colorable federal defense. The district court held that the nursing home did not act pursuant to a federal officer’s directions. Acting under the direction of a federal officer requires lawfully assisting a federal officer in his or her duties and a defendant must be authorized to act with or for the federal officer. Simply complying with the federal laws and regulations, even if they are highly detailed and supervised, is insufficient to bring a private person under the federal officer statute. Here, despite the defendant nursing home claims that COVID-19 resulted in unprecedented circumstances of federal directives and operational control, defendant nursing home ultimately did no more than follow federal regulations and recommendations.

  1. (Anti-SLAPP) Legal counsel regarding prospective litigation and obligations under a fee agreement with a prior attorney were protected activity under the anti-SLAPP statute. Richard Pech v. Stephen M. Doniger (No. B309781 Los Angeles County Super. Ct. No. 20STCV18681 California Court of Appeal Second Appellate District Division Five Filed February 18, 2022)

This matter involved a lawsuit asserting multiple causes of action against an attorney’s former clients and the client’s new attorneys. The lawsuit stemmed from a claim that the new attorneys interfered with the former attorney’s fee agreement by advising the clients not to file a complaint that the plaintiff had drafted. The new attorneys filed a motion to strike all the plaintiff’s claims against them under the Code of Civil Procedure section 425.16 (the anti-SLAPP statute). The trial court granted the motion in part, striking the claims for interference with contract. On appeal, the plaintiff contended the anti-SLAPP motion should have been denied, because the new attorneys failed to identify a specific allegation of protected conduct to be stricken. He also contended that the new attorneys’ interference with the fee agreement was not a protected activity under the anti-SLAPP statute, or if the conduct was protected, he established a probability of prevailing on the merits.

The appeals court concluded that the new attorneys identified the conduct supporting the claim for interference with contract that they asserted was protected under the anti-SLAPP statute. In this case, advice about proposed litigation against a third party, including the clients’ rights and obligations under a fee agreement with another attorney, are protected activity under the anti-SLAPP statute. Further the plaintiff did not demonstrate a probability of prevailing on the merits, because the claims was barred by the litigation privilege contained in Civil Code section 47, subdivision (b). Therefore, the appellate court affirmed the trial court’s ruling.

  1. (MICRA) Physician assistants who practice under a licensed physician but receive minimal or no supervision may still fall under the Medical Injury Compensation Reform Act’s noneconomic damages cap. Marisol Lopez v. Glenn Ledesma (No. S262487 Second Appellate District, Division Two B284452 Los Angeles County Superior Court BC519180 Filed: February 24,2022 (reposting corrected version))

The California Supreme Court granted review of an appellate court’s decision to determine whether section 3333.2 of the California Civil Code, and a provision of the Medical Injury Compensation Reform Act (MICRA), applied to actions against physician assistants who were nominally supervised by a doctor but received minimal or no actual supervision when performing medical services. The appeals court affirmed, founding that the MICRA statute applied and affirmed that trial court’s ruling capping plaintiff’s noneconomic damages at $250,000.00 pursuant to the above referenced code section.

The California Supreme Court agreed with the appellate court’s finding that section 3333.2 applied in a case where the physician assistant who had a legally enforceable agency relationship with a supervising physician and provided services within the scope of that agency relationship, even if the physician violates his or her obligation to provide adequate supervision.

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.