California Law Update – January 2016

January 31, 2016Law Updates
  1. (Physician/Patient Duty) Doctor reviewing Workers’ Compensation-provided drug regimen owes physician-patient duty of care to injured worker. King v. CompPartners. (No. E063527, Super. Ct. No. RIC1409797, California Courts of Appeal, Fourth Appellate District, Division Two, January 5, 2016).
  2. (Enforcement of Judgment) Trial court may compel judgment creditor to produce documents in its possession that would aid in enforcing money judgment even if such documents concerned third parties. SCC Acquisitions, Inc. v. The Superior Court of Orange County. (No. G050546, Super. Ct. No. 30-2012-00574257, California Courts of Appeal, Fourth Appellate District, Division Three, January 6, 2016).
  3. (Dangerous Condition) Dangerous condition of public property and wrongful death claims against university relating to student’s bicycle accident correctly barred by the recreational ‘trail immunity’ statute. Burgueno v. The Regents of the University of California. (No. H040416, Santa Cruz County Super. Ct. No. CV173578, California Courts of Appeal, Sixth Appellate District, January 13, 2016).
  4. (Court Reporters) In the case of a litigant who has been granted a fee waiver, can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review? Jameson v. Desta. (No. D066793, Super. Ct. No.GIS9465, California Courts of Appeal, Fourth Appellate District, Division One, January 29, 2016)
  5. (Arbitration Agreement) Care facility cannot force representative of decedent’s estate to arbitrate wrongful death claim where representative is not bound by arbitration agreement. Monschke v. Timber Ridge Assisted Living, LLC. (No. A144289, Humboldt County Super. Ct. No. DR140247, California Courts of Appeal, First Appellate District, Division One, January 29, 2016).
  6. (Representation of Adverse Clients) Client successfully overturns order confirming arbitration award in favor of law firm where firm violated rule barring simultaneous representation of adverse clients. Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co. Inc. (No. B256314, Los Angeles County Super. Ct. No. YC067332, California Courts of Appeal, Second Appellate District, Division Four, January 29, 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. (Physician/Patient Duty) Doctor reviewing Workers’ Compensation-provided drug regimen owes physician-patient duty of care to injured worker. King v. CompPartners. (No. E063527, Super. Ct. No. RIC1409797, California Courts of Appeal, Fourth Appellate District, Division Two, January 5, 2016).
  2. Plaintiff injured his back while working and was prescribed a psychotropic medication for lingering back pain and anxiety. The drug was first provided through Workers’ Compensation but, a Workers’ Compensation utilization review was conducted by a physician, who deemed the drug medically unnecessary. As a result, the plaintiff stopped taking the medication with no weaning period and because of that suffered seizures that caused additional injury. The plaintiff and his wife sued the physician for professional negligence. The trial court sustained the physician’s demurrer without leave to amend agreeing that the defendant physician did not have a special, physician-patient duty of care owed to the plaintiff resulting from the review process.

    The appeals court reversed finding that the physician who reviewed and ultimately deemed medically unnecessary the psychotropic medication was seen as “acting as a healthcare provider as to the medical aspects of the decision.” The appeals court found that the physician owed plaintiff a duty of care and thus, the trial should have granted the plaintiffs leave to amend so they could offer additional facts to better illustrate the potential liability of the physician.

  3. (Enforcement of Judgment) Trial court may compel judgment creditor to produce documents in its possession that would aid in enforcing money judgment even if such documents concerned third parties. SCC Acquisitions, Inc. v. The Superior Court of Orange County. (No. G050546, Super. Ct. No. 30-2012-00574257, California Courts of Appeal, Fourth Appellate District, Division Three, January 6, 2016).
  4. As part of a judgment creditor efforts to enforce judgment, this judgment creditor propounded requests for production of documents to the debtor pursuant to Code of Civil Procedures section 708.030 which allows a judgment creditor to demand that any judgment debtor produce and permit the party making the demand to inspect and to copy a document in its possession that might assist in enforcement of a money judgment. The judgment creditor later brought a motion to compel the debtor to respond further to the request. The trial court granted the judgment creditor’s motion to request and the debtor appealed from the order granting the motion to compel. The appeals court concluded that the trial court had authority under the above referenced Code of Civil Procedure section to compel the judgment debtor to produce documents in its possession or control regarding third parties, and rejected the debtor’s contentions that the requests violated the privacy rights of third parties as well as that the requests were overbroad.

  5. (Dangerous Condition) Dangerous condition of public property and wrongful death claims against university relating to student’s bicycle accident correctly barred by the recreational ‘trail immunity’ statute.
      Burgueno v. The Regents of the University of California. (No. H040416, Santa Cruz County Super. Ct. No. CV173578, California Courts of Appeal, Sixth Appellate District, January 13, 2016).

      A student at defendant university was fatally injured in a bicycle accident on the campus of the university. The plaintiffs including the decedent’s mother and sister brought a lawsuit against the defendant university alleging that the defendant was liable for the student’s death due to the dangerous condition of the bikeway where the accident occurred. The trial court granted the university’s motion for summary judgment on the ground that the action was barred under the recreational trail immunity provided by Government Code section 831.4.

      The appeals court determined that the causes of action for dangerous condition of the public property and wrongful death were barred as a matter of law because the university had absolute immunity from claims arising from the tragic accident on the bikeway pursuant to the recreational trail immunity provided by the above referenced code section. Therefore, the appeals court affirmed the summary judgment.

    • (Court Reporters) In the case of a litigant who has been granted a fee waiver, can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review? Jameson v. Desta. (No. D066793, Super. Ct. No.GIS9465, California Courts of Appeal, Fourth Appellate District, Division One, January 29, 2016)
    • Plaintiff is a former self-represented litigant who was incarcerated at a state correctional facility. He sued a medical practitioner for allegedly mistreating his hepatitis. The plaintiff case went to trial. No court reporter was provided at trial and the litigants did not hire a private reporter. The county where the trial took place (San Diego) has a policy of requiring litigants in civil lawsuits to pay for their own court reporters.

      The defendant physician successfully moved for nonsuit after the plaintiff, representing himself, delivered his opening argument.

      On appeal, the appellate court affirmed the trial court’s finding of a nonsuit. The appellate court found no reason to overturn the trial court, in large part because the record “did not contain a reporter’s transcript.” Writing for the court, Justice Cynthia G. Aaron wrote “[w]hile this court is sympathetic to the plight of litigants like [plaintiff] whos incarceration and/or financial circumstances present such challenges, the rules of appellate procedure and substantive law mandate that we affirm the judgment in this case.”

      The California Supreme Court has granted a review of this matter based upon a petition drafted by an attorney on the plaintiff’s behalf. The issue before the court is in a case of a litigant who has been granted a fee waiver (Government Code section 68631), can a county’s superior court employ a policy that has a practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review?

    • (Arbitration Agreement) Care facility cannot force representative of decedent’s estate to arbitrate wrongful death claim where representative is not bound by arbitration agreement. Monschke v. Timber Ridge Assisted Living, LLC. (No. A144289, Humboldt County Super. Ct. No. DR140247, California Courts of Appeal, First Appellate District, Division One, January 29, 2016).
    • Plaintiff acting as the personal representative for the estate of her mother, filed a lawsuit for wrongful death and elder abuse against defendant, assisted living company which compelled arbitration on the ground that the plaintiff on behalf of her mother, had signed an agreement with an arbitration clause before enrolling her mother in defendant’s facility.

      The trial court denied the petition, finding the wrongful death claim had been brought on behalf of the decedent’s surviving children, and the children were not parties to the arbitration agreement. The trial court also declined to submit the elder abuse claim to arbitration because of the possibility of conflicting rulings.

      The defendant appealed arguing the trial court erred in finding plaintiff was not bound by the arbitration agreement. Among other things, the defendant contended plaintiff’s stepped into the shoes of the decedent by filing this action as a personal representative of the decedent’s estate.

      The appeals court disagreed with defendant’s contentions and affirmed the trial court’s ruling.

      Here, the plaintiff signed a residency agreement as her mother’s “power of attorney, and not in her personal capacity.” Hence, since the only parties to the agreement were the decedent and the defendant; the decedent’s daughter was not bound by it. Moreover, the plaintiff was asserting the action as a personal representative of the estate on behalf of her mother’s heirs, and not as a representative of the decedent. Because a wrongful death action belongs to the heirs, defendant’s assertion that plaintiff “stepped into the shoes of decedent and is bound by the decedent’s obligations” to arbitrate was equally unavailing. Accordingly, the court upheld the trial court’s order denying the defendant’s motion to compel arbitration.

    • (Representation of Adverse Clients) Client successfully overturns order confirming arbitration award in favor of law firm where firm violated rule barring simultaneous representation of adverse clients. Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co. Inc. (No. B256314, Los Angeles County Super. Ct. No. YC067332, California Courts of Appeal, Second Appellate District, Division Four, January 29, 2016).

Defendant, manufacturing company appealed from a judgment in favor of its former attorneys. The former attorneys sought recovery of attorney fees related to litigation in which the law firm represented the defendant. The law firm was disqualified from litigation because, without obtaining informed consent from either client, it represented the defendant in litigation while simultaneously representing a plaintiff in the case in unrelated matters. The defendant argued that its engagement agreement with the law firm was unenforceable because it was illegal and it violated public policy embodied within the California Rules of Professional Conduct, Rule 3-310, which bars simultaneous representation of adverse clients. Defendant argued that as a result of the law firm’s violation, the defendant did not owe the law firm outstanding attorneys’ fees and that the law firm should return to the defendant all attorneys’ fees paid pursuant to the agreement.

The trial court ordered the case to arbitration based upon the parties written engagement agreement. A panel of three arbitrators found that the agreement was not illegal, denied the defense request for disgorgement of fees paid, and ordered the defendant to pay the law firm outstanding fees. The trial court confirmed the award and the defendant appealed, arguing that the trial court enforced an illegal contract in violation of public policy.

The appeals court reversed the judgment finding that the law firm’s representation of the defendant violated the Professional Conduct Rule 3-310 and public policy and that it represented parties without their written consent of the other to the conflict. The appeals court also found that under established California law that the law firm was not entitled to fees for work it did while violating Rule 3-310 which exemplifies the inviolate duty of loyalty and attorney owes a client. Because the point at which the actual conflict arose was unclear from the record, the appeals court remanded for a factual finding on that issue.

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