- (Retaliation/Elder Abuse) Summary adjudication of statutory retaliation claim in favor of doctor and hospital upheld where wife lacked standing to assert action regarding late husband’s care. N.B. v. Doe Hospital. (No. D071094, Super. Ct. No. MCC 1300776, California Courts of Appeal, Fourth Appellate District, Division One, June 7, 2017)
- (Debt Collection) Defaulted debt purchaser that collects debts on its own behalf does not qualify as a ‘debt collector’ under Fair Debt Collected Practices Act. Henson v. Santander Consumer USA Inc. (No. 16-349, Argued April 18, 2017 – Decided June 12, 2017)
- (Power of Attorney/Health Care) Attorney-in-fact exceeds authority under power of attorney to admit principal to residential care facility, thus precluding facility from enforcing arbitration agreement contained in admission agreement. Hutcheson v. Eskaton Fountainwood Lodge. (No. C074846, Super. Ct. No. 34-2012-00135467-CI-PO-GDC, California Courts of Appeal, Third Appellate District (Sacramento) June 14, 2017)
- (Government Claims Act) Plaintiff must file suit within six months from cause of action under Government Code Section 911.2 where ‘accrual’ means ‘ripeness’ to sue. City of Pasadena v. Superior Court. (No. B280805, Los Angeles Super. Ct. No. BC596857; JCCP No. 4674, California Court of Appeals, Second Appellate District, Division Four, June 26, 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.
- (Retaliation/Elder Abuse) Summary adjudication of statutory retaliation claim in favor of doctor and hospital upheld where wife lacked standing to assert action regarding late husband’s care. N.B. v. Doe Hospital (No. D071094, Super. Ct. No. MCC 1300776, California Courts of Appeal, Fourth Appellate District, Division One, June 7, 2017)
Plaintiff was admitted to defendant’s hospital emergency department where he was admitted to the ICU secondary to a stroke and remained at the hospital until he was transferred to a third-party hospital where he died. Approximately a year after the decedent’s death, the plaintiff spouse sued the hospital, the physicians, and others alleging elder abuse, retaliation, and violation of Health & Safety Code section 1278.5 and wrongful death/medical negligence. The hospital and physician successfully moved for summary judgment. The trial court thereafter entered judgments in their favor.
The appeals court affirmed, finding that the decedent’s spouse lacked standing to bring a retaliation action, either as an individual or on behalf of her spouse’s estate, no retaliation could be brought. The trial court properly entered judgment in favor of the hospital. With regard to the physician, the same statute did not provide provision for a claim against an individual physician.
In addition, the defense successfully argued that the declaration submitted by plaintiff in support of their claim for elder abuse and neglect was insufficient to create a triable issue of fact, as to the elder abuse cause of action, based upon the alleged conduct by the nurses of the hospital.
- (Debt Collection) Defaulted debt purchaser that collects debts on its own behalf does not qualify as a ‘debt collector’ under Fair Debt Collected Practices Act. Henson v. Santander Consumer USA Inc. (No. 16-349, Argued April 18, 2017 – Decided June 12, 2017)
This decision decided by the U.S. Supreme Court involved interpretation of the Fair Debt Collection Practices Act (FDCPA).
Petitioners borrowed money for purchase of vehicles. When petitioners defaulted on the loans, the respondent purchased the defaulted loans from the loaning company, and thereafter sought to collect from the petitioners in ways the petitioners thought were troublesome under the FDCPA. The petitioners then sued the respondent, alleging violations of the FDCPA. The U.S. District Court, and later the U.S. Circuit Court found the FDCPA inapplicable to the respondent because they did not qualify as a “debt collector” under the FDCPA. The U.S. Supreme Court granted review.
The U.S. Supreme Court affirmed the circuit court’s ruling. The FDCPA allows for private suits to deter abusive practices of “debt collectors,” which include anyone who “regularly collects or attempts to collect… debts owed or due… another” 15 U.S.C. section 1692a(6).
Petitioners contended, among other things, that the debt collector definition must include debt purchasers like the respondent. However, respondent was only seeking to collect debts for itself. It was not a third party collection agent, and, hence, by the plain terms of the act, because the respondent was not collecting debt “owed… another,” the lower courts properly concluded that the respondent did not qualify as a debt collector under the FDCPA. Thus, the Supreme Court upheld the judgment.
- (Power of Attorney/Health Care) Attorney-in-fact exceeds authority under power of attorney to admit principal to residential care facility, thus precluding facility from enforcing arbitration agreement contained in admission agreement. Hutcheson v. Eskaton Fountainwood Lodge. (No. C074846, Super. Ct. No. 34-2012-00135467-CI-PO-GDC, California Courts of Appeal, Third Appellate District (Sacramento) June 14, 2017)
The issue presented in this case involved whether an attorney-in-fact who admitted her principal to a residential care facility for the elderly, made a “health care” decision. If she did, as the trial court found, she acted outside the scope of her authority under the power of attorney, and admission agreement she signed, and its arbitration clause this appeal seeks to enforce, our void.
To answer this question, the appellate court reconciled two statutes, the Power of Attorney Law (Probate Code section 4000 et. seq. (PAL)), and the Health Care Decisions Law (Probate Code section 4600 et. seq. (HCDL)), in light of the care rendered by a residential care facility for the elderly (Health & Safety Code section 1569 et. seq.), and parse the authority of two of the principal’s relatives, one holding a power of attorney under the PAL and one holding a power of attorney under the HCDL.
On these facts, the appeals court concluded admission of decedent to the residential care facility for the elderly was a health care decision and the attorney-in-fact who admitted her, acting under the PAL, was not authorized to make health care decisions on behalf of the principal.
As a result, the appeals court affirmed the trial court’s denial of a motion by the residential care facility to compel arbitration. Because the attorney-in-fact acting under the PAL did not have authority to admit the principal to the residential care facility for the elderly, their execution of the admission agreement and its arbitration clause was void.
- (Government Claims Act) Plaintiff must file suit within six months from cause of action under Government Code Section 911.2 where ‘accrual’ means ‘ripeness’ to sue. City of Pasadena v. Superior Court. (No. B280805, Los Angeles Super. Ct. No. BC596857; JCCP No. 4674, California Court of Appeals, Second Appellate District, Division Four, June 26, 2017
Plaintiff was diagnosed with mesothelioma, allegedly as a result of her father’s exposure to airborne asbestos at facilities controlled and managed by a public entity. A year after the diagnosis, plaintiff filed a first amended complaint against the public entity. The public entity demurred, arguing that the plaintiffs failed to comply with Government Code section 911.2, under which a claim must be presented within six months of the accrual of a cause of action. The plaintiffs argued that, under Code of Civil Procedure section 340.2, the relevant statute of limitations that the cause of action never accrued. The trial court overruled the demurrer, finding that “accrual” in section 911.2 means when the limitations period begins. The public entity petitioned for a writ of mandate.
The writ of mandate was granted. Under section 911.2, plaintiff must bring claims for personal injury damage against a public entity within six months after accrual. Plaintiff cannot file suit if they fail to meet this deadline. The accrual date is distinct from the commencement of the statute of limitations period and is used in the sense of “rightness.” The discovery rule, an exception to initial accrual, applies to asbestos related diseases and provides that accrual may be delayed until the plaintiff “discovers, or has reason to discover, the cause of actions.”
Here, plaintiff’s accrual argument was undermined since the statute only addresses to distinct limitations period. The plaintiff’s should have brought their suit within six months of when the plaintiff was diagnosed, since this is when the plaintiff discovered her compensable injury. Since the plaintiffs failed to comply with this deadline, they could not bring a claim against the public entity.
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.