California Law Update – February 2016

February 28, 2016Law Updates
  1. (Experts) Plaintiff’s expert declarations properly excluded where plaintiff unreasonably failed to disclose expert witness information with defendants. Perry v. Bakewell Hawthorne LLC. (No. B264027, Los Angeles County Super. Ct. No. BC500198, California Courts Appeal, Second Appellate District, Division Two, February 3, 2016).
  2. (Attorney Fault) Order vacating dismissal of attorney malpractice action reluctantly affirmed where plaintiffs entitled to relief under California Code of Civil Procedure Section 473 (b)’s attorney-fault provision. Younessi v. Woolf. (No. G051034, Super. Ct. No. 30-2013-00681537, California Courts of Appeal, Fourth Appellate District, Division Three, February 16, 2016).
  3. (Interrogatory Responses) Trial court improperly binds insurer to certain interrogatory responses, allowing doctor to prevail on summary judgment in alleged insurance fraud conspiracy. The People ex rel. Government Employees Insurance Co. v. Cruz. (No. D067061, San Diego County No. 37-2013-00029878-CU-FR-NC, California Courts of Appeal, Fourth Appellate District, Division One, February 17, 2016).
  4. (Summary Judgment) No triable issue in wrongful death action as to duty to report suspected abuse, where evidence shows only that consulted doctors may have had reason to ‘speculate’ as to potential abuse of woman who was subsequently murdered by her husband. Pipitone v. Williams. (No. H041468, Monterey County Super. Ct. No. M114411, California Courts of Appeal, Sixth Appellate District, February 23, 2016).
  5. (Five Year Period for Trial) Dismissal upheld; period during which action is stayed for mediation does not toll five-year period within which to bring action to trial. Gaines v. Fidelity National Title Insurance Co. (No. S215990, Ct.App. 2/8 B244961, Los Angeles County Super. Ct. No. BC361768, Supreme Court of California, February 25, 2016).
  6. (Medical Board Subpoena) Doctor unsuccessful in quashing subpoenas by medical board of his patients’ medical records where good cause exists to invade patients’ privacy rights. Fett v. Medical Board of California. (No. B262469, Los Angeles County Super. Ct. No. BS143716, California Courts of Appeal, Second Appellate District, Division Two, February 26, 2016).

The above referenced matters have come to our attention during the last month. We thought you might be interested in a brief summary of these matters. Please let us know if you would like to receive a copy of any of these recently reported court decisions.

  1. (Experts) Plaintiff’s expert declarations properly excluded where plaintiff unreasonably failed to disclose expert witness information with defendants. Perry v. Bakewell Hawthorne LLC. (No. B264027, Los Angeles County Super. Ct. No. BC500198, California Courts Appeal, Second Appellate District, Division Two, February 3, 2016).
  2. Plaintiff appealed from a summary judgment entered in favor of defendant in a personal injury action based upon claims of negligence and premises liability. Plaintiff’s principal argument on appeal was that the trial court erred by excluding expert witness declarations he submitted in opposition to the summary judgment motion.

    Defendant served a demand for exchange of expert witnesses pursuant to Code of Civil Procedure § 2034.210 which the plaintiff opposed as untimely. Defendant exchanged expert witness information nonetheless. Plaintiff neither participated in the exchange nor designated any expert witnesses.

    In opposing the motion for summary judgment, plaintiff submitted expert declarations concerning a dangerous condition on the property. Defendant objected claiming that plaintiff’s nonparticipation in the expert exchange precluded it from using those declarations. The trial court sustained the defendant’s evidentiary objections and granted the motion for summary judgment.

    The appeals court affirmed. Plaintiff chose not to participate in the exchange of witness information. Even if the plaintiff objected to its alleged untimeliness, the court noted that the legislature did not provide for objections to demands for exchange of experts. Rather than filing an objection, the plaintiff should have instead moved for a protective order, which he neither sought nor obtained. Section 2034.260 also required plaintiff to participate in the exchange. There being ample evidence of plaintiff’s unreasonable conduct, the trial court properly excluded the expert declarations.

  3. (Attorney Fault) Order vacating dismissal of attorney malpractice action reluctantly affirmed where plaintiffs entitled to relief under California Code of Civil Procedure Section 473 (b)’s attorney-fault provision. Younessi v. Woolf. (No. G051034, Super. Ct. No. 30-2013-00681537, California Courts of Appeal, Fourth Appellate District, Division Three, February 16, 2016).
  4. Defendants appealed from an order granting plaintiffs’ motion to set aside the dismissal of a legal malpractice action. The trial court entered the dismissal after the plaintiffs failed the timely file an amended complaint in response to an order sustaining the demurrers to the original complaint with leave to amend. The plaintiffs filed motions to dismiss the appeal.

    The appeals court “reluctantly” affirmed the trial court’s order vacating the dismissal. While the evidence did not support granting relief from mistake, inadvertence, surprise, or excusable neglect, since the dismissal resulted from plaintiffs newly retained attorneys failure to oppose the demurrers and timely file the amended complaint, plaintiffs were entitled to relief under Section 473 (b)’s attorney-fault provision.

  5. (Interrogatory Responses) Trial court improperly binds insurer to certain interrogatory responses, allowing doctor to prevail on summary judgment in alleged insurance fraud conspiracy. The People ex rel. Government Employees Insurance Co. v. Cruz. (No. D067061, San Diego County No. 37-2013-00029878-CU-FR-NC, California Courts of Appeal, Fourth Appellate District, Division One, February 17, 2016).
  6. Plaintiff insurance carrier brought a whistleblower action asserting statutory and common law claims for damages and civil penalties against defendants arising from alleged involvement in an insurance fraud conspiracy. The trial court granted the defendants’ motion to bind plaintiff to certain interrogatory responses, then granted defendants’ summary judgment motion on the basis of those responses. Those responses established the plaintiff was unable to prove its case against the defendant. On appeal, plaintiff contended the court erred by binding the plaintiff to its earlier interrogatory responses, excluding additional evidence offered in opposition to the summary judgment motion and granting summary judgment on its statutory claim. The appeals court reversed the judgment and directed the trial court to enter an order denying summary adjudication of plaintiff’s statutory claim and granting summary adjudication of its common law claims.

    In the underlying matter, the defendant denied any wrongdoing and claimed that plaintiff suffered no damages, based largely in part on plaintiff’s responses to discovery wherein plaintiff stated that because discovery was continuing, it “cannot provide the total amount it seeks to recover…” The trial court sanctioned the plaintiff for its “insufficient&rdqou; responses and granted defendant’s motion to bind plaintiff to its responses.

    In reversing and remanding the matter, the appeals court relied on California Code of Civil Procedure 2030.310 (b) which provides that a propounding party may move to bind the responding party to its initial responses. To prevail on such a motion, the movant must establish that (1): “the initial failure of the responding party to answer the interrogatory correctly must have substantially prejudiced the [propounding] party;” (2) the responding party must have “failed to show substantial justification for the initial answer;&rquo; and (3) the prejudice to the propounding party must not be curable either by a continuance to permit further discovery or by the use of the initial answer.

    The appeals court found that even assuming plaintiff lacked any justification for its interrogatory responses, the record failed to show that defendants were substantially prejudiced by the plaintiff’s later responses or that such responses could not be cured. Consequently, the trial court was found to erred in binding plaintiff to its earlier responses.

  7. (Summary Judgment) No triable issue in wrongful death action as to duty to report suspected abuse, where evidence shows only that consulted doctors may have had reason to ‘speculate’ as to potential abuse of woman who was subsequently murdered by her husband. Pipitone v. Williams. (No. H041468, Monterey County Super. Ct. No. M114411, California Courts of Appeal, Sixth Appellate District, February 23, 2016).
  8. This action arose from the murder of the daughter of the plaintiff who was killed by her husband who later killed himself in jail while awaiting murder charges. The defendants, physicians, separately saw and treated the plaintiff’s daughter several months before her death for injuries she sustained when her husband ran over her foot with his truck. At the time, plaintiff’s daughter did not reveal the true origin of her injury to the defendant physicians.

    The plaintiff brought this wrongful death action against the physicians for failure to report alleged, suspected abuse to the authorities as required by Penal Code section 11160. The trial court granted the defendants’ separate motions for summary judgment, each on independent grounds of duty and causation. The court also granted one of the defendant’s motion on a third ground, the affirmative defense of equitable estoppel. Plaintiff appealed from the court’s entry of summary judgment against her. She argued that she raised triable issues of fact as to duty and causation.

    The appeals court concluded the trial court correctly found no triable issues of fact as to both elements of duty and causation. Because breach of duty and causation are necessary elements of a wrongful death action predicated on alleged violations of Penal Code section 11160, the appeals court affirmed the judgments in favor of the defendant physicians.

  9. (Five Year Period for Trial) Dismissal upheld; period during which action is stayed for mediation does not toll five-year period within which to bring action to trial. Gaines v. Fidelity National Title Insurance Co. (No. S215990, Ct.App. 2/8 B244961, Los Angeles County Super. Ct. No. BC361768, Supreme Court of California, February 25, 2016).
  10. Plaintiff’s lawsuit was dismissed for failure to comply with Code of Civil Procedure § 583.310 which requires that an action “be brought to trial within five years after the action is commenced against the defendant.” The issue here was whether the statute was tolled by an order entered pursuant to the parties’ agreement. The order stuck the trial date and “stayed” the proceedings while the parties engaged in mediation and completed all outstanding discovery.

    In upholding the dismissal, the California Supreme Court held that a “mediation stay” did not toll the five-year period.

    In so finding, the California Supreme Court stated that in computing the five-year time frame, the trial court must exclude any period when the prosecution or trial of an action was stayed or enjoined. The court must also exclude any time when it was “impossible, impracticable, or futile” to bring the case to trial. Here, the trial court held that neither of those tolling provisions saved this case from dismissal. The Court of Appeal affirmed the dismissal as to all but one defendant. The California Supreme Court affirmed the Court of Appeal’s judgment. The statutory framework recognizes that a stay can be either partial or complete. A complete stay will operate to automatically toll the five-year period. A partial stay will not do so unless it results in circumstance impossibility, impracticability, or futility. The court concluded that the trial court’s order did not effect a complete stay of the prosecution of the action. Nor did the order create a circumstance of impracticability because plaintiff agreed to it, remaining in control of the circumstances, and made meaningful progress towards resolving the case during the stay.

  11. (Medical Board Subpoena) Doctor unsuccessful in quashing subpoenas by medical board of his patients’ medical records where good cause exists to invade patients’ privacy rights. Fett v. Medical Board of California. (No. B262469, Los Angeles County Super. Ct. No. BS143716, California Courts of Appeal, Second Appellate District, Division Two, February 26, 2016).

This matter involved a physician’s appeal from the trial court’s order compelling compliance with an administrative investigative subpoena issued by the Medical Board of California seeking complete certified records of three of physician’s patients on the grounds that there was good cause to believe that the doctor departed from the standard of care in connection with the treatment of those patients. The appellate court affirmed the trial court’s order holding that substantial evidence supported the trial court’s finding that good cause existed for compelling production of the records. Among other deficiencies, consent forms were missing, had irregular signatures, and/or lacked witnesses, and bills lacked documentation, appeared altered, or failed to support the services billed.

The appeals court found that the patients’ complete files were needed to determine whether records were missing or altered, whether the physician ever operated without patient consent, and whether complete operative reports were prepared.

Finally, the Court of Appeal held the government’s compelling interest in protecting the public—by ensuring that medical care provided by Board-certified practitioners meets the industry’s standard of care—outweighs these patients’ privacy interests, and that the subpoena was not overbroad because the court limited it to three years of records.

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.
Sincerely,

DUMMIT, BUCHHOLZ & TRAPP
Scott D. Buchholz