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California Law Update – July 2017

By July 28, 2017April 22nd, 2018Law Updates
  1. (Notice of Intent) In medical malpractice action, letter sent by plaintiff’s intent to sue cannot toll statute of limitations given plaintiff’s earlier letter expressing such intent. Kumari v. The Hospital Committee for the Livermore-Pleasanton Areas. (No. A148351, Alameda County Super. Ct. No. RG15755853, California Courts of Appeal, First Appellate District, Division Five, July 6, 2017)
  2. (Medical Board Investigation) An invasion of privacy that is justified by competing interests does not violate the California State Constitution. Lewis v. Superior Court. (No. S219811, Ct.App. 2/3 B252032, Los Angeles County Super. Ct. No. BS 139289, Supreme Court of California, July 17, 2017)
  3. (Online Reviews) Where libel plaintiff seeks anonymous defendant’s identity from third-party review site, plaintiff must make prima facie libel showing, and court must consider equitable factors, but no final balancing test is required. ZL Technologies, Inc. v. Doe. (No. A143680, Marin County Super. Ct. No. CIV1203944, California Court of Appeals, First Appellate District, Division Four, July 19, 2017)
  4. (Privette Doctrine) The plaintiff bears the burden of showing the existence of a triable material fact where the “Privette” doctrine presumption affects the burden of producing evidence pursuant to Evidence Code 603. Alvarez v. Seaside Transportation Services LLC. (No. B275980, Los Angeles County Super. Ct. No. BC538128, California Court of Appeals, Second Appellate District, Division Eight, July 20, 2017)
  5. (Anti-SLAPP) Anti-SLAPP motion erroneously granted in favor of Hospital where surgeon-plaintiff’s complaint did not arise from peer review proceedings, but from alleged retaliatory motive. Bonni v. St. Joseph Health System. (No. G052367, Super. Ct. No. 30-2014-00758655, California Court of Appeals, Fourth Appellate District, Division Three, July 26, 2017)
  6. (Recreational Immunity) Trail immunity inapplicable where plaintiff does not dispute the condition of a trail. Toeppe v. City of San Diego. (No. D069662, Super. Ct. No. 37—2014-00004836-CU-PO-CTL, California Court of Appeals, Fourth Appellate District, Division One, July 27, 2017)

The above referenced matters have come to our attention during the last month. Please find below a brief summary of these newly issued opinions.

  1. (Notice of Intent) In medical malpractice action, letter sent by plaintiff’s intent to sue cannot toll statute of limitations given plaintiff’s earlier letter expressing such intent. Kumari v. The Hospital Committee for the Livermore-Pleasanton Areas. (No. A148351, Alameda County Super. Ct. No. RG15755853, California Courts of Appeal, First Appellate District, Division Five, July 6, 2017)

Plaintiff delivered her baby at defendant hospital. The next day she fell while walking inside the hospital and fractured her shoulder. In February of 2014, the patient sent the defendant hospital a letter accusing a nurse of medical negligence and asking for over $200,000 in damages. The defendant hospital declined to make an offer of settlement. On October 27, 2014, the patient’s lawyer sent a letter regarding the fall and the patient’s intent to sue. On January 23, 2015, patient and her husband sued the hospital for medical negligence and loss of consortium. The trial court granted the defendant hospital’s motion for summary judgment, finding the complaint time-barred.

The appeals court affirmed. The patient’s 2014 letter included all the information required under section 364 to be considered a notice of intent to sue. It even stated that the patient “move to the court after 20 days” if she did not receive payment of the claimed amount. California Code of Civil Procedure section 340.5 provides that a medical malpractice action must be brought within one year after the plaintiff discovered the injury. The complaint was not filed within a year, as it was time-barred. The letter sent by the plaintiff’s attorney was surplusage that could not serve to toll the statute of limitation for a period of 90 days. Therefore, the trial court appropriately granted summary judgment to the defendant hospital.

  1. (Medical Board Investigation) An invasion of privacy that is justified by competing interests does not violate the California State Constitution. Lewis v. Superior Court. (No. S219811, Ct.App. 2/3 B252032, Los Angeles County Super. Ct. No. BS 139289, Supreme Court of California, July 17, 2017)

In 2008, the Medical Board of California (Board) began investigating the petitioner physician following a patient’s complaint. The Board used the controlled substance utilization review and evaluation system (CURES) to access the physician prescriber’s activity report, which included the physician’s patient prescription records. Following the investigation, the Board accused the physician of unprofessional conduct and prescribing dangerous drugs, among other things. The physician motioned to dismiss the accusations arguing that the Board infringed on his patient’s privacy rights when it obtained the CURES reports without a warrant. After the Board placed the physician on probation, the physician petitioned the Court of Appeal under an invasion of privacy claim pursuant to the California Constitution. The court ultimately denied the petition, finding, among other things, that “compelling government interests” justified the invasion of privacy.

The matter proceeded to the California Supreme Court where the question was whether the Board violated patient rights to privacy under Article 1 Section 1 of the California Constitution when it obtained data from CURES without a warrant or subpoena supported by good cause in the course of investigating the patient physician. The California Supreme Court held that it did not because even assuming that accessing prescription records without good cause constituted a significant intrusion on the legally protected privacy interest, the Board’s actions in the case were justified.

  1. (Online Reviews) Where libel plaintiff seeks anonymous defendant’s identity from third-party review site, plaintiff must make prima facie libel showing, and court must consider equitable factors, but no final balancing test is required. ZL Technologies, Inc. v. Doe. (No. A143680, Marin County Super. Ct. No. CIV1203944, California Court of Appeals, First Appellate District, Division Four, July 19, 2017)

Current and former employees of plaintiff posted anonymous reviews criticizing the plaintiff’s management and work environment on a website for job seekers on which people may anonymously post information and express opinions about current or past employers. Plaintiff filed a complaint for libel against the individuals who posted the reviews, who they named as Doe defendants and served a subpoena against the website asking it to reveal the names of those who posted the reviews. The website refused the subpoena stating that revealing the names is a violation of the individuals’ First Amendment rights. The plaintiff then filed a motion to compel the website to comply with the subpoena, but it still refused to do so. After a hearing on the matter, the trial court dismissed the case due to plaintiff’s failure to serve the defendants. On appeal, plaintiff challenged the trial court’s order denying the motion to compel.

The matter was reversed, finding that the plaintiff action was improperly dismissed for failing to serve the Doe defendants after it was denied access to the information necessary to identify them. Because the anonymous posts on the website criticized the plaintiff and were arguably libel, the court reversed the trial court’s order.

  1. (Privette Doctrine) The plaintiff bears the burden of showing the existence of a triable material fact where the “Privette” doctrine presumption affects the burden of producing evidence pursuant to Evidence Code 603. Alvarez v. Seaside Transportation Services LLC. (No. B275980, Los Angeles County Super. Ct. No. BC538128, California Court of Appeals, Second Appellate District, Division Eight, July 20, 2017)

Plaintiff was injured at work when he drove a maintenance van into a shipping container. The plaintiff’s employer had been hired by defendant container company to perform maintenance work at a marine container terminal. Plaintiff sued defendant container company and two of its contractors alleging general negligence.

The trial court granted summary judgment to the defendants based on the Privette doctrine. Under Privette v. Superior Court (1993) 5 Cal.4th 689, an independent contractor’s employee generally may not recover tort damages for work-related injuries from the contractor’s hirer. On appeal plaintiff argued that the defendants did not meet their burden as the moving party on summary judgment, and (2) the plaintiff raised triable issues of material fact as to whether the Privette doctrine applied because defendants retained control over safety conditions at the worksite and affirmatively contributed to his injuries. The appeals court disagreed and affirmed the trial court’s ruling. The appeals court found that, although the plaintiff carried the burden of proving the existence of a triable material fact, it failed to meet its burden when it failed to prove the defendant had direct control over the performance of his job under the retained control exception to the Privette doctrine. Thus, with the absence of a triable material fact, summary judgment was properly affirmed.

  1. (Anti-SLAPP) Anti-SLAPP motion erroneously granted in favor of Hospital where surgeon-plaintiff’s complaint did not arise from peer review proceedings, but from alleged retaliatory motive. Bonni v. St. Joseph Health System. (No. G052367, Super. Ct. No. 30-2014-00758655, California Court of Appeals, Fourth Appellate District, Division Three, July 26, 2017)

Plaintiff, a surgeon, sued defendant hospital and other defendants for retaliation under Health and Safety Code section 1278.5 (the Whistleblower Statute). Plaintiff alleged defendants retaliated against him for his whistleblower complaints by summarily suspending his medical staff privileges and conducting hospital peer review proceedings.

In response to plaintiff’s filing of his first amended complaint, the defendants filed a special motion under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) to strike plaintiff’s retaliation cause of action, asserting his claim arose from the protected activity of hospital peer review proceedings. The court granted defendant’s anti-SLAPP motion as to two of the defendant hospitals. The court determined, first, that the defendants had met prong one of the anti-SLAPP statute’s two-part test, which requires a moving defendant to show the plaintiff’s claim arose from activity protected under the statute. The court then proceeded to prong two of the anti-SLAPP test, which required plaintiff to show probability of prevailing on his or her claim. The court concluded plaintiff’s proof failed as to both defendants.

The appeals court concluded plaintiff’s retaliation under the Whistleblower Statute arose from defendant’s alleged acts of retaliation against the plaintiff because he complained about the robotic surgery facilities at the hospitals and not from any written or oral statements made during the peer review process or otherwise. The court noted that discrimination and retaliation claims are rarely, if ever, good candidates for the filing of an anti-SLAPP motion. Accordingly, the defendant’s motion to strike failed on prong one of the anti-SLAPP test and the court reversed the order granting defendant’s motion.

  1. (Recreational Immunity) Trail immunity inapplicable where plaintiff does not dispute the condition of a trail. Toeppe v. City of San Diego. (No. D069662, Super. Ct. No. 37—2014-00004836-CU-PO-CTL, California Court of Appeals, Fourth Appellate District, Division One, July 27, 2017)

A tree branch fell on the plaintiff while she and her boyfriend were walking through a city park. She filed a lawsuit against the city alleging the existence of a dangerous condition on public property, namely a negligently maintained eucalyptus tree. The City prevailed on summary judgment, arguing that the plaintiff was struck by the tree branch while standing on a trail; thus, the city could not be liable under Government Code section 831.4 (trail immunity).

Plaintiff appealed the ensuing final judgment following the City’s successful motion for summary judgment. Plaintiff’s challenge was two-fold. First, she asserted the trail immunity did not apply to the facts of this case. To this end, plaintiff emphasized that her claim of a dangerous condition was based on a negligently maintained eucalyptus tree, not the condition of the trail passing through the park. Second, she contended even if trail immunity did apply, a disputed issue of material fact existed as to where she was located when the branch struck her. The appeals court agreed with the plaintiff on both grounds. Plaintiff’s claim in this case did not give rise to trail immunity. In addition, there was a disputed issue of material fact as to where she was when the branch struck her. Therefore, the appeals court reversed the trial court’s ruling.

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 ESQ.