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California Law Update – November 2022

By December 12, 2022Law Updates
  1. (Public Entity Immunity) Overruling demurrer with leave to amend was error where plaintiff failed to demonstrate she could allege facts establishing an exception to public entity’s immunity from liability for employees’ tortious conduct. State Department of State Hospital v. The Superior Court of Napa County (No. A164384 Napa County Super. Ct. No. 21CV000760 California Court of Appeal First Appellate District Division Five Filed November 2, 2022)
  2. (Medical Board) Evidence was insufficient for a jury to conclude that medical board’s National Practitioner Data Bank report was false because evidence established that the reported physician was under investigation at time of resignation. Gary R. Wisner v. Dignity Health (No. C094051 Super. Ct. No. STK-CV-UD-2020-0003078 California Court of Appeal Third Appellate District Filed November 4, 2022)
  3. (Peremptory Juror Challenges) Peremptory challenges may not be used to excuse potential jurors who are associated with characteristics listed in Government Code Section 11135(a) which includes those associated with someone who has a disability. Zulma Unzueta v. Asmik Akopyan (No. B313215 Los Angeles County Super. Ct. No. BC495137 California Court of Appeal Second Appellate District Division Seven Filed November 7, 2022)
  4. (Adoptive Admissions) Statements made by the company’s technical director were admissible to show discriminatory or retaliatory animus against a fired employee because they were made by a high-ranking organizational agent. Jane Doe v. Software One, Inc. (No. G060554 Super. Ct. No. 30-2019-01045961 California Court of Appeal Fourth Appellate District Division Three Filed November 8, 2022)
  5. (Privette Doctrine) *Privette* doctrine did not protect shopping center owner from liability for independent contractor’s injuries because owner did not hire the contractor nor delegate its duty to provide a safe workplace. Francisco Ramirez v. PK I Plaza 580 SC LP (No. A162593 Alameda County Super. Ct. No. RG19002904 California Court of Appeal First Appellate District Division One Filed November 10, 2022)
  6. (Trivial Defect) Summary judgment was inappropriate where there was no clear evidence regarding whether a sidewalk defect was trivial as a matter of law other than the size of a height differential. Salvador Fajardo v. Cynthia A. Dailey (No. B314031 Los Angeles County Super. Ct. No. 19STCV28455 California Court of Appeal Second Appellate District Division Seven Filed November 10, 2022)
  7. (Leave to Amend) Denial of leave to amend was appropriate where amending complaint would be fruitless because plaintiff could not identify any mandatory duty that defendant public entity failed to discharge. Natasha Thompson v. County of Los Angeles (No. B307696 & B311569 Los Angeles County Super. Ct. No. BC687511 California Court of Appeal Second Appellate District Division Eight Filed November 16, 2022)
  8. (Good Samaritan Law) Costco gas station attendant who stopped fight between customers was immune from liability under the Good Samaritan statute. Mark Valdez v. Costco Wholesale Corporation (No. B315309 Los Angeles County Super. Ct. No. 19STCV14029 California Court of Appeal Second Appellate District Division Two Filed November 18, 2022)
  9. (Privette Doctrine) General contractor who hired subcontractor to work on beach house could be liable for injuries to subcontractor’s carpenter since they retained control over the scaffolding and actually exercised that control. Kyle Brown v. Beach House Design & Development (No. B314946 Los Angeles County Super. Ct. No. 19STCV20315 California Court of Appeal Second Appellate District Division Three Filed November 21, 2022)
  10. (Debt Collection Law) Neurosurgeon and his professional corporation were not liable as “debt collectors” under the Rosenthal Fair Debt Collection Practices Act for hiring a third-party billing service to collect medical payments. Fraquel Olson v. La Jolla Neurological Associates (No. D079265 Super. Ct. No. 37-2018-00051604-CU-MC-CTL California Court of Appeal Fourth Appellate District Division One Filed November 23, 2022)
  11. (Anti-SLAPP) Counsel’s prelitigation letter did not qualify as extortion that was unprotectable under Civil Code Section 425.16 because it did not fall outside the bounds of professional norms. Jason Flickinger v. Gordon J. Finwall (No. B322736 Santa Clara County Super. Ct. No. 19CV355773 California Courts of Appeal Second Appellate District Division Eight Filed November 30, 2022)

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. (Public Entity Immunity) Overruling demurrer with leave to amend was error where plaintiff failed to demonstrate she could allege facts establishing an exception to public entity’s immunity from liability for employees’ tortious conduct. State Department of State Hospital v. The Superior Court of Napa County (No. A164384 Napa County Super. Ct. No. 21CV000760 California Court of Appeal First Appellate District Division Five Filed November 2, 2022)

Plaintiff alleged that she was sexually abused by an employee of defendant, state mental institution. The plaintiff sued the defendant asserting causes of negligence, negligent supervision/training/hiring/retention, sexual battery, assault, and statutory civil rights violations. The defendant demurred and then filed a petition for writ of mandate after the trial court sustained its demurrer in part with leave to amend and overruled it in part. The appellate division granted writ relief because the plaintiff’s complaint was barred by government immunity under Government Code section 854.8, subdivision (a)(2). Under this section, public entities have broad immunity from liability for injuries suffered by an inpatient of a mental institution.

A public entity generally cannot be directly sued for torts committed by its employees that injure an inpatient at a mental institution. Section 855 of the Government Code, however, allows liability in limited scenarios where the public entity fails to abide by a statute or regulation’s legally mandated standards for personnel, equipment, or facilities. This liability only exists when a specific standard is set forth that gives the public entity clear notice as to the minimum requirements with which it must comply. Here, the plaintiff claimed that the defendant was liable for her injuries under Section 855, but she failed to point to any statutory or regulatory standard that the defendant failed to meet. Moreover, she failed to demonstrate that she could allege that the defendant violated any minimum standard sufficient to form the basis of liability under Section 855. Accordingly, the demurrer should have been sustained in full without leave to amend.

  1. (Medical Board) Evidence was insufficient for a jury to conclude that medical board’s National Practitioner Data Bank report was false because evidence established that the reported physician was under investigation at time of resignation. Gary R. Wisner v. Dignity Health (No. C094051 Super. Ct. No. STK-CV-UD-2020-0003078 California Court of Appeal Third Appellate District Filed November 4, 2022)

This appeal was from an order striking a complaint under Code of Civil Procedure section 425.16, known as the anti-SLAPP (strategic lawsuit against public participation) statute. Plaintiff, a physician, filed a complaint alleging that defendant hospital falsely reported to the National Practitioner Data Bank (NPDB) that plaintiff surrendered his clinical privileges while under investigation. The trial court granted a special motion to strike the complaint after concluding that the plaintiff’s claims arose from a protected activity and the plaintiff failed to establish a probability of prevailing on the merits. Plaintiff contested both aspects of the trial court’s order, and he also contended the trial court erred by denying his motion to conduct limited discovery prior to the hearing on the anti-SLAPP motion.

Finding no error, the appellate division affirmed the trial court’s ruling. The court noted that the Health Care Quality Improvement Act (HCQIA) provides immunity for reporting to the NPDB as a matter of law unless there is sufficient evidence for a jury to conclude the report was false and the reporting party knew it was false. The appellate court held that there was insufficient evidence for a reasonable jury to conclude that the NPDB report was false because the evidence established that the plaintiff was “under investigation” at the time of his resignation. The hospital had investigated the board accusation and criminal indictment, and requested information from the plaintiff, after plaintiff requested to be placed on the emergency department call panel, and the Secretary of Department of Health & Human Services determined that the plaintiff surrendered his clinical privileges while under investigation.

  1. (Peremptory Juror Challenges) Peremptory challenges may not be used to excuse potential jurors who are associated with characteristics listed in Government Code Section 11135(a) which includes those associated with someone who has a disability. Zulma Unzueta v. Asmik Akopyan (No. B313215 Los Angeles County Super. Ct. No. BC495137 California Court of Appeal Second Appellate District Division Seven Filed November 7, 2022)

Plaintiff appealed from a judgment entered in favor of defendant on the plaintiff’s action for medical malpractice after the trial court denied a motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal. 3d 258 (Wheeler) concerning jury selection. In this appeal, the appellate division considered whether under California law an attorney may properly strike a prospective juror based on the disability of the juror’s family member. Historically Batson/Wheeler motions have been analyzed, as the trial court did in this case, in terms of whether the justification for excusing a prospective juror was race neutral. In 2015, the Legislature expanded the scope of cognizable groups protected under Batson/Wheeler by its enactment of certain Assembly Bills which became effective on January 1, 2017. Assembly Bill 87 amended Code of Civil Procedures section 231.5 to specify by reference to Government Code section 11135 that peremptory challenges cannot be used to excuse prospective jurors on the basis of their sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental and physical disability, medical condition, genetic information, marital status, or sexual orientation. Nor could a peremptory challenge be based on the perception the juror possesses one of these characteristics or because of the juror’s association with someone perceived to have one of these characteristics.

In an earlier appellate division decision regarding the same matter, the appellate court concluded that the trial court erred in denying the plaintiff Batson/Wheeler motion after defendant’s attorney exercised peremptory challenges to six Hispanic prospective jurors out of his seven total challenges. The appellate division agreed with the plaintiff that the court erred in requiring defense counsel to offer non-discriminatory reasons for its first four challenges that formed the basis of the trial court’s prima facia findings of racial bias. The appellate division conditionally reversed with for the limited purpose of the court conducting the second and third steps of the Batson/Wheeler inquiry as to all six challenged Hispanic jurors and directed the court on remand to require defense counsel to state his reasons for challenging the first four prospective jurors, and to decide in light of the record as to all six jurors whether the plaintiff had proved purposeful racial discrimination. The appellate division in the earlier case also directed the trial court that if it found that defendant’s challenges were permissible, it should reinstate the judgement.

On remand, following the first appellate court ruling, the trial court elicited justifications for the six prospective jurors at issue, which defendant’s attorney provided. As to two of the jurors, defendant’s attorney asserted they were excused because they had a family member who was disabled, and the attorney feared the family member’s disability would cause the juror to be biased in favor of the plaintiff, who alleged she became disabled as a result of the defendant’s professional negligence. The court found the justifications were “race-neutral,” and after analyzing all the challenges, it denied the Batson/Wheeler motion and reinstated the judgement. In this present appeal, the plaintiff argued that the defendant’s striking of the two prospective jurors based on the disabilities of their family members was itself based on protected characteristics. The appellate division found the plaintiff was correct and that the defendant’s justification of excusing the two jurors was race-neutral, but it was still impermissible under California law. Therefore, the appellate court reversed and ordered a new trial.

  1. (Adoptive Admissions) Statements made by the company’s technical director were admissible to show discriminatory or retaliatory animus against a fired employee because they were made by a high-ranking organizational agent. Jane Doe v. Software One, Inc. (No. G060554 Super. Ct. No. 30-2019-01045961 California Court of Appeal Fourth Appellate District Division Three Filed November 8, 2022)

Plaintiff accepted a position with defendant. She alleged that she suffered several discriminatory remarks from the company’s director of technical services before being fired from the company, including statements where the director told her at an after-work event that the company was a “guy’s club” and that the plaintiff was “never going to make it” at the company, as well as calling her a “bitch.” Plaintiff sued the defendant for discrimination and retaliation. The trial court granted the defendant’s motion for summary judgment. The plaintiff moved for a new trial, arguing that she made a sufficient showing of retaliatory intent. The trial court agreed and granted the motion. Defendant appealed, contending that the director’s comments were inadmissible hearsay.

The appeals court affirmed the trial court’s ruling. It found that the statements related to “guys club” “never going to make it” fell within the adoptive admission exception. The director’s high position in the corporate hierarchy and defendant’s characterization of him in a leadership role made him a high-ranking organizational agent subject to the exception. As to calling her a “bitch” this was also not hearsay as it was not offered for the truth, but rather evidence of animus.

  1. (Privette Doctrine) *Privette* doctrine did not protect shopping center owner from liability for independent contractor’s injuries because owner did not hire the contractor nor delegate its duty to provide a safe workplace. Francisco Ramirez v. PK I Plaza 580 SC LP (No. A162593 Alameda County Super. Ct. No. RG19002904 California Court of Appeal First Appellate District Division One Filed November 10, 2022)

Plaintiff, a self-employed contractor, was hired by a shopping center’s tenant to remove an exterior sign after the tenant vacated its space. While searching for the sign’s electrical box, he entered a cupola on the shopping center’s roof and fell through an opening built into the cupola’s floor, sustaining injuries.

Plaintiff filed a tort action against the defendants who owned the shopping center. The trial court granted summary judgment in the defendant’s favor based on upon the Privette doctrine, which creates a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety, meaning that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.

On appeal, plaintiffs contended that summary judgment was improperly granted because Privette doctrine did not apply. The appellate division agreed. The shopping mall owner did not hire its tenant or the plaintiff to perform the work. Thus, the defendant did not delegate its own responsibility for the roof’s condition to the plaintiff through an employment relationship, as contemplating by Privette. Nor did the defendant delegate such responsibilities by virtue of its landlord-tenant relationship. Since defendant neither sought summary judgment nor argued for affirmance on any basis other than the Privette doctrine, the appeals court reversed and remanded for further proceedings. In doing so, however, the appellate division recognized the strong possibility that the defendant could prevail under general principles of premises liability.

  1. (Trivial Defect) Summary judgment was inappropriate where there was no clear evidence regarding whether a sidewalk defect was trivial as a matter of law other than the size of a height differential. Salvador Fajardo v. Cynthia A. Dailey (No. B314031 Los Angeles County Super. Ct. No. 19STCV28455 California Court of Appeal Second Appellate District Division Seven Filed November 10, 2022)

Plaintiff filed a negligence claim against the defendant after he tripped and fell on an asphalt patch between two adjacent sidewalk slabs in front of the defendant’s property. The trial court granted defendant’s motion for summary judgment, ruling the condition of the sidewalk was a trivial defect. Because the defendant did not meet her burden on summary judgment of showing the defect was trivial as a matter of law, and because the plaintiff submitted admissible evidence creating a triable issue of material fact, the appellate division reversed. The defendant contended that the sidewalk height differential was less than one inch, but there was no competent evidence submitted by the defendant to support a basis for this assertion. A declaration submitted by an expert by the defendant included photographs, but it did not say that they were the basis for his opinion or who took them. The trial court had sustained the plaintiff’s objections as to their admissibility. There was also no evidence regarding the condition of the black asphalt patch at the time of the accident. Accordingly, the trial court could not accurately find whether the sidewalk defect was trivial as a matter of law. Therefore, the appellate court reversed the trial court’s ruling.

  1. (Leave to Amend) Denial of leave to amend was appropriate where amending complaint would be fruitless because plaintiff could not identify any mandatory duty that defendant public entity failed to discharge. Natasha Thompson v. County of Los Angeles (No. B307696 & B311569 Los Angeles County Super. Ct. No. BC687511 California Court of Appeal Second Appellate District Division Eight Filed November 16, 2022)

Plaintiff sued defendant county, as well as other county employed defendants for removing her son from her care. The defendants demurred. The trial court sustained the demurrer without leave to amend. It found the County was immune from suit and that the plaintiff failed to allege a mandatory duty sufficient to overcome immunity. The plaintiff appealed. Plaintiff claimed a mandatory duty, and in the alternative, the court should have allowed her to amend her complaint.

The appellate court affirmed.

This decision is important as defendants often object to plaintiff being granted leave to amend a complaint and often point out to the court a complaint maybe barred by either the statute of limitations or an immunity. The trial court will often allow the amendment leaving the defense to have to file a demurrer. This ruling may be useful to convince a court to not grant a request to amend the complaint in the first place and avoid a demurrer. In the underlying case, the court denied the plaintiff to amend the complaint because the court found no legal duty which plaintiff could properly assert.

  1. (Good Samaritan Law) Costco gas station attendant who stopped fight between customers was immune from liability under the Good Samaritan statute. Mark Valdez v. Costco Wholesale Corporation (No. B315309 Los Angeles County Super. Ct. No. 19STCV14029 California Court of Appeal Second Appellate District Division Two Filed November 18, 2022)

Plaintiff and another man engaged in a fistfight at a gas station owned by defendant. The gas station attendant stopped the fight by physically separating the two men. The plaintiff later sued for negligence and related causes of action, alleging he was injured when the defendant employee pulled him away from the other man. Defendant and the employee each moved for summary judgment as they were separately named. The trial court granted defendants’ motions. The plaintiff appealed.

The plaintiff’s primary contention on appeal was that the trial court erroneously concluded the Good Samaritan Law set forth in Health and Safety Code section 1799.102, subdivision (b) shielded the employee from liability. The appeals court affirmed the judgment. The court noted that when the defendant employee attempted to separate the two combatants, the plaintiff tightened his grip until the defendant employee was able to separate them. Had the employee not intervened, the fight would have continued. This situation constituted an emergency and defendant’s employee, by intervening to stop the fight, was rendering emergency nonmedical assistance as statutorily defined and thus was shielded from liability as a Good Samaritan.

  1. (Privette Doctrine) General contractor who hired subcontractor to work on beach house could be liable for injuries to subcontractor’s carpenter since they retained control over the scaffolding and actually exercised that control. Kyle Brown v. Beach House Design & Development (No. B314946 Los Angeles County Super. Ct. No. 19STCV20315 California Court of Appeal Second Appellate District Division Three Filed November 21, 2022)

Plaintiff was severely injured when he fell from a significant height while working as a carpenter at a construction site. Plaintiff alleged that he fell from defective scaffolding, and he sued the general contractor and the scaffolding subcontractor for negligence. The trial court granted summary judgment for the general contractor, concluding that plaintiff’s claims were barred by exceptions to the peculiar risk doctrine articulated by the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and subsequent authority.

The appeals court reversed. It found that while Privette and subsequent cases held that a general contractor cannot be vicariously liable for the negligence of its subcontractors, plaintiff’s claim against the general contractor alleged direct, not vicarious liability. Further, there were triable issues of material fact as to whether the general contractor fully delegated to the scaffolding subcontractor the duty to maintain the scaffolding in a safe condition. Therefore, the motion for summary judgment was improperly granted.

  1. (Debt Collection Law) Neurosurgeon and his professional corporation were not liable as “debt collectors” under the Rosenthal Fair Debt Collection Practices Act for hiring a third-party billing service to collect medical payments. Fraquel Olson v. La Jolla Neurological Associates (No. D079265 Super. Ct. No. 37-2018-00051604-CU-MC-CTL California Court of Appeal Fourth Appellate District Division One Filed November 23, 2022)

Defendant, physician, and its medical professional corporation hired a third-party billing service to collect payments from patients and their insurers. Plaintiff sued the physician and his medical corporation, but not the third-party billing service for unlawful debt collection under the Rosenthal Fair Debt Collection Practices Act (the Rosenthal Act; Civ. Code, section 1788 et seq). The trial court granted a defense motion for summary judgment on the ground that doctor and his medical corporation were not “debt collectors” within the meaning of the Rosenthal Act.

The appeals court agreed and affirmed the judgment. The appeals court found that the physician and his medical group were not engaged in debt collection because they hired an unaffiliated third-party billing service to collect the balances on their behalf. Based upon the on the statute’s plain language the physician and his medical corporation must have personally participated in collecting the debt from the plaintiff to be liable. Additionally, the legislative history indicated an intent to protect consumers from unregulated in-house debt collectors, not creditors like the physician and his medical group who utilized an outside entity for debt collection. In addition, there was no evidence that the medical corporation and the debt collector were part of a single economic enterprise outside of the medical corporation providing basic information. Accordingly, the physician and his medical corporation were not directly liable as “debt collectors” under the Rosenthal Act.

  1. (Anti-SLAPP) Counsel’s prelitigation letter did not qualify as extortion that was unprotectable under Civil Code Section 425.16 because it did not fall outside the bounds of professional norms. Jason Flickinger v. Gordon J. Finwall (No. B322736 Santa Clara County Super. Ct. No. 19CV355773 California Courts of Appeal Second Appellate District Division Eight Filed November 30, 2022)

This matter involved an appeal from an order denying defendant’s motion to strike plaintiff’s causes of action against him pursuant to California’s anti-SLAPP statute section 425.16 of the Code of Civil Procedure. There was no dispute that defendant’s underlying conduct was in furtherance of petitioning activity within the meaning of section 425.16, subdivision (b)(1). But the trial court concluded that defendant’s prelitigation letter responsive to a demand from plaintiff’s counsel amounted to extortion as a matter of law so as to deprive it of section 425.16 protection under the seminal case Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley), which involved a similar situation involving an attorney’s prelitigation letter.

The appeals court interpreted Flatley as holding an attorney’s prelitigation communication was extortion as a matter of law only where the attorney’s conduct falls entirely outside the bounds of ordinary professional conduct. The appeals court found that in this case, the defendant’s letter fell within the boundaries of professional conduct and therefore the Flatley exception to anti-SLAPP protection does not apply. It concluded that defendant made a prima facie showing under the first prong of the anti-SLAPP analysis. The appeals court exercised its discretion to consider the second prong of the anti-SLAPP analysis and concluded that plaintiff failed to meet his burden to show probability of prevailing on his cases of action. The sole cause of action that plaintiff depended on appeal was for civil extortion. The appeals court agreed with the defendant that litigation privilege defeated this cause of action.

The underlying facts of this matter involve a successful lawsuit by a party alleging that an attorney’s letter from the opposing party constituted extortion wherein the attorney suggested that litigation could result in the plaintiff’s employer opening up an investigation into the plaintiff’s activities. The plaintiff filed an action alleging extortion based upon the correspondence. As noted above, the court found that despite the plaintiff understanding the content of the correspondence as being a threat that did not make it extortion as 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.